african customary and religious law review (acarelar) 4 (2023) 28 lagos state law and the committee on boundary matters: a legal analysis* abstract boundaries constitutes one of the main attributes of a state as a subject of international law or as a constituent part of an independent state. without a determined and a particularly specified and delineated boundary a states cannot effectively claim a territory or determine the location of itself amongst other states. with development extending to territorial areas that were not earlier taken as useful or important, issues of territories determined by boundaries continue to rear their heads especially in a cosmopolitan city as lagos. this paper has set out to investigate and do an analysis of the law establishing the lagos state boundary committee and the attendant issues touching and concerning boundary matters and record its conclusions. keywords: boundary, territory, disputes, local council development areas. 1. introduction lagos state is the smallest state amongst the 36 states in land mass in nigeria but represents the most vibrant in almost all areas of human endeavour. lagos state and the activities of people and government of lagos state, as it is presently constituted, is the heartbeat of the nigerian nation-leading in capital market operations, banking, education, tourism, aviation, economy and other indices of development which may not be possible in numbering serration. lagos state covers just 0.4 percent of nigeria landmass, a mere 3,577 square kilometres, out of which about one-quarter is liquid surface: lagoons, creeks and coastal river estuaries...1 it contains within its tiny territory and boundaries about 50 percent of industrial and commercial activities of the country-nigeria2. more than 90 percent of baking and financial institutions have their headquarters in lagos and the dominance of the financial transactions is illustrated by central bank statistics3. with the 1991 provisional census figures of 5.68 million, the inhabitants of lagos state are more in population than any other state in nigeria4. but the recent population census estimated the population of lagos state at about 14 million coming second after kano state. commentators have severally disagreed with the last census figures anchoring their claims on the fact that about 70 percent of the consumption of electricity and petroleum products occur in lagos state alone, leaving about 30 percent for the remaining states of the federation. 2. location lagos state is sandwiched by latitude 6° 22 and 6° 42n and it straddles longitudes 2° 42 to 4° 20 it is bounded in the north by ogun state and in the east by ondo state. it shares international boundary of about 45 kilometres with the republic of benin while the vast, deep blue atlantic ocean constitutes the approximately 180 kilometres long southern limit5. although the total land area is just about 3,577 square kilometres, yet creeks, lagoons and estuaries constitute nearly 800 (22%) square kilometres. however, reclamation is reducing the size of water surface in a significant way. for example, apapa area, lagos-epe strip, maroko and the controversial osborne parcel of land that is the object of disagreement between the federal and the lagos state government over whose jurisdiction the land belongs6. nevertheless, it is not only man that is reclaiming the land surface but the sea is also trying to reclaim more space for itself in the process of coastal erosion as being witnessed in the gradual etching away of part of the bar beach7. 3. creation of lagos state at independence in 1960, nigeria had four regions (northern, western, mid-western and eastern) and the lagos colony a federal territory. before the nigerian civil war in 1967, nigeria was broken up by the federal military government under the leadership of general yakubu gowon (rtd) into twelve states. lagos state was thus created as one of the first twelve states being an amalgamation of the then lagos colony, and some parts of the western region. it was then basically composed of five main divisions, namely: lagos colony, badagry, epe, ikeja and ikorodu. the city of ikeja became the capital of lagos state till the present time. during the  by r. o. olaoluwa, llm, phd, associate professor, department of jurisprudence and international law, faculty of law, lagos state university, lagos, nigeria; solicitor and advocate of the supreme court of nigeria; former secretarygeneral, nigerian society of international law. e-mail: rufus.olaoluwa@lasu.edu.ng 1arowolo, o.o (1990) (ed), some aspects of the living conditions of the people of lagos state, faculty of social sciences, lagos state university, ojo, p. 2. 2 arowolo, o.o. (1990), op. cit., p. 207. 3 banking and finance institutions in nigeria, http://www.nigeriagalleria.com at 26 february, 2011. 4 nigeria (l982) nigeria provisional census result, new nigeria daily newspaper, march 20, 1992, kaduna. 5odewunmi, s.g: lagos state: location, extent and constituent/// fundamentals of general studies edited by a.o.k noah, 1995, p. 117. 6 odewunmi, s.g., op. cit., p. 117. 7 odewunmi, s.g., supra, p. 117. about:blank olaoluwa: lagos state law and the committee on boundary matters: a legal analysis 29 local government reform of 1976, the state was further divided into eight local government areas. these are lagos island, lagos mainland, mushin west, mushin east (later called somolu), ikeja, ikorodu, badagry and epe8. in 1979, the lagos state administration of alhaji lateef kayode jakande further sub-divided the state into twenty two local government areas. these are agege, ajeromi/ifelodun, alimosho, apapa, badagry, ebutemetta/yaba, epe, ibeju lekki, eti-osa, ikeja, ikorodu, ikoyi, irepodun, itire/ikate, kosofe, lagos island, mushin, odi-olowo, ojo, oshodi/isolo, somolu and surulere9. the subsequent military governments both at federal and state have increased and reduced the number of local government areas in lagos state for one reason or the other until 199810 when the present nigerian 1999 constitution was approved and signed into law. the 1999 constitution of the federal republic of nigeria provides for twenty local government areas for lagos state as follows: agege, ajeromi-ifelodun, alimosho, amuwo odofin, apapa, badagry, epe, eti-osa, ibeju/lekki, ifako-ljaye, ikeja, ikorodu, kosofe, lagos island, lagos mainland, mushin, ojo, oshodi/isolo, somolu and surulere11. the growth of lagos is going a bit faster than the rate of its requisite development. before the capital city of nigeria was relocated to abuja, lagos was the capital of nigeria. the fact of its history as the former capital of nigeria coupled with the fact of its geographical location as a major port of entry from outside the country and exit from the country by sea and air greatly contributed to its unprecedented constant growth12. lagos state being the custodian of the former capital city of nigeria is a socio-cultural centre accommodating all and sundry from all parts of the country and including foreign nationals. despite the small size of lagos as the smallest in land mass, nonetheless about 81% of the people are living in urban areas. the cultural composition of lagos population is: yoruba as that represent the majority of about 72%, the lgbos represent about 10%, the edos represent about 3%, the hausas 2% while almost all the other ethnic groups exist in various proportions below 2%. non-nigerians constitute about 2% of the population13. the above factors make lagos a unique place in the life of nigerians. the activities of people in socio-cultural, economic and political relations vis-à-vis the land mass of lagos put a lot of pressure on the government of lagos state in terms of provision of amenities which seem to be inadequate in the face of massive input from the government. one of the ways open to the government in coping with its task of governance is to restructure the state by creating more local government development areas in other to meet the demands for effective administration for the benefit of lagosians. 4. creation of 57 local government areas in order that government should be brought nearer to the people and relying on section 8(3) of the 1999 constitution of the federal republic of nigeria, the lagos state government passed a law known as the creation of local government area law 2002 wherein 57 local government areas were created in place of the former 20 local government areas. the local government areas14 are: s/n local government area headquarters 1. agbado/oke-odo abule-egba 2. agboyi/ketu alapere 3. agege sango 4. ajeromi ajegunle 5. alimosho akowonjo 6. amowu-odofin amuwo 7. apapa apapa 8. apapa iganmu badiya 9. ayobo/ipaja igbogila 10. badagry west kankon 11. badagry badagry town 12. bariga pedro 13. coker aguda aguda 8 odewunmi, s.g., op. cit., p. 117. 9 odewunmi, s.g., op. cit., p. 117. 10 see the forwarding notes to the constitution of the federal republic of nigeria promulgation. 11 see first schedule, part 1, constitution of the federal republic of nigeria 1999. this constitution came into force on 29th may, 1999. 12 odumosu, t. & adedokun, l. (1990), ‘some aspects of the urban and rural areas of lagos state// arowolo, o.o. (ed.) (1990), some aspects of the living conditions of the people of lagos state, faculty of social sciences, lagos state university, ojo, lagos, p. 2. 13 odewunmi, s.g., op. cit., p. 130. 14 a law to provide for the creation of new local government areas in lagos state adopted 24 june, 2002. african customary and religious law review (acarelar) 4 (2023) 30 14. egbe-idirnu isheri-olofin 15. ejigbo ejigbo 16. epe itamarun 17. eredo eredo 18. eti-osa east ajah 19. eti-osa west igbo efon 20. iba oyonka 21. ibeju igando oloja 22. ifako-ijaye ifako 23. ifelodun amukoko 24. igando/ikotun ikotun 25. igbogbo-bayeku igbogbo 26. ijede maidan 27. ikeja ikeja 28. ikorodu ikorodu town 29. ikorodu north odogiyan 30. ikorodu west owutu 31. ikosi-ejinrin agbowa 32. ikosi isheri ikosi 33. ikoyi obalende 34. imota ebute-ajebo 35. iru-victoria island victoria island 36. isolo isolo 37. itire-ikate itire 38. kosofe ojota 39. lagos island east kakawa 40. lagos island west isale-eko 41. lagos mainland oyingbo 42. lekki lekki 43. mosan-okunola akin-ogun 44. mushin mushin 45. odi-olowo/ojuwoye ilupeju 46. ojo alaworo 47. ojodu oke ira 48. ojokoro ijaiye 49. olorunda iworo 50. onigbongbo opebi 51. oriade ijegun ibasa 52. orile agege abekoro 53. oshodi oshodi 54. oto awori ijanikin 55. somolu bajulaye 56. surulere surulere 57. yaba adekunle the adoption of the law to provide for the creation of new local government areas in lagos sparked off a lot of questions, comments, arguments and disagreements between the lagos state government and the federal government on one hand and a lot of discussions in the academia, judiciary and especially amongst the populace in the press on the other hand. the federal government under the presidency of chief olusegun obasanjo was vehement in its disagreement with the lagos law and especially in creating thirty seven (37) additional local council development government areas without first agreeing with the federal authorities. on saturday, 27th march 2004, the lagos state government conducted elections into the new 57 local government councils established by the creation of the new local government area law15 and chairmen of 57 new local governments were sworn-in on monday, 29th march, 2004 by the governor of lagos state. on the 8th of april, 2004, the president wrote to the minister of finance instructing the minister not to release 15 the creation of new local government law, no. 5, 2002, s. 4. olaoluwa: lagos state law and the committee on boundary matters: a legal analysis 31 allocations from the federation account to the states where new local governments were created and elections held into them including lagos. it is pertinent to note that some state governments in the country have before then created new local government areas and conducted elections into them without open disagreement from the federal government. available information indicates that some states namely ebonyi, katsina, nasarawa arid niger states conducted the local government election in new local government areas by their respective states’ assemblies without much noise from the federal government until lagos state did the same16. while the state house of assembly are empowered by the 1999 constitution to create new local government areas, the national assembly is, however, required to make consequential provisions by an act with respect to the names and headquarters of the new local government areas for any of such new local governments to have constitutional recognition17. the above constitutional questions arose because lagos state and some other states have acted to tamper with the existing boundaries between local government areas which has jurisdictional and financial implications for both the state and the federal government of nigeria. the federal government in swift reaction ordered the lagos state government to revert to the 20 local government areas as provided for in part 1, first schedule of the constitution and that until it reverts back to the 20 local government areas, federal allocations from the federal government wifi be withheld. the lagos state disagreed with the federal government and consequently sued the federal government18. in the case between a.g lagos state v. a.g federation, seven issues were raised four of which touch and concern boundaries which is the subject of this paper. these issues are presented hereunder: issues no. 3: whether or not the plaintiff has power under the 1999 constitution to abolish local government areas created under the 1999 constitution by altering their names, adjusting their boundaries and dividing them into smaller units; issues no. 4: whether or not the plaintiff has power under the 1999 constitution to create new local governments without recourse to the national assembly as provided for under the constitution; issues no. 5: whether the creation of local government areas law, no. 5 of 2002 of lagos state is invalid without or before the enactment of an act of the national assembly enacted pursuant to section 8(5) of the 1999 constitution; and issues no. 6: whether or not the creation of local government areas law, no. 5 of 2002 of lagos state has become part of the laws of lagos state or whether the said instrument never became law or if it purported to have become law it is void for inconsistency with the constitution.19 responding to some of the issues raised, the supreme court considered inter alia the power of state government to create new local government council, the court said that: a state of the federation has the power under sections 7(1) and 8(3) of the 1999 constitution to create new local government areas as was done in law no. 5 of 2002 and of 2004 by lagos state. however, the new local government so created will not take effect or come into operation until the national assembly accordingly amends section 3(6) and part 1 of the first schedule to the constitution20. continuing, the court stated that: under section 8(3) of the 1999 constitution the house of assembly of a state is empowered to pass a bill for the creation of new local government areas. it may also under section 8(4) pass a bill to adjust the boundary of any existing local government area. it follows that in the process of creating new or additional local government areas which will of necessity lead to the adjustment of boundaries of some or all the existing ones, a state house of assembly is adequately enabled by subsection (3) and (4) of section 8 to alter the boundaries of the existing local government areas that consequently come into being21. 16 gbenga salau, 20 years on, lcdas for good governance, development, the guardian newspaper, 20th february 2022 17 see s; 8(5) of the constitution of the federal republic of nigeria, 1999. 18 attorney-general of lagos state v. attorney-general of the federation (2004) 18 nwlr (pt. 904), p. 1-148. 19 ibid. p. 7. 20 ibid. p. 37. 21 ibid, pp. 38 at p. 101, paras e-g. african customary and religious law review (acarelar) 4 (2023) 32 despite the ‘war’ between the federal government and the lagos state government on the creation or adjustment of local government areas, the people continue to show their discontentment to the lagos government either for not giving or creating new local government areas for them or for adjustment in the boundaries of their existing local government areas. the above moved the fashola government to pass another law to establish the lagos state boundary committee and for other connected matters. this is the focus of this paper. 5. lagos state boundary committee law the lagos state boundary committee law is a law promulgated by the babatunde raji fashola’s government on the 13th of july, 2009. the law is short having only 16 sections in all. powers of the committee the committee shall be a body corporate with perpetual succession and a common seal. the committee may sue and be sued in its corporate name and may acquire, hold and dispose of movable and immovable properties for the purpose of carrying out its functions under this law22. composition of the committee the committee shall not exceed ten (10) members. the members of the committee shall be appointed by the governor and are to be responsible for administering the affairs of the body. it shall consist of the deputygovernor of lagos state who shall be the chairman. other members of the committee include the commissioners for lands, information and strategy, local government and chieftaincy affairs, physical planning and urban development, the attorney-general and commissioner for justice and the surveyorgeneral of lagos state and including not more than three (3) other persons with relevant skills and experience in boundary and border matters who shall be appointed by the governor23. tenure of office the members of the committee shall hold office on part-time basis24. this is a positive dimension in governance as members have their primary assignments and it will be cost effective for the government to manage. it will be nice if government is left in the hand of professionals who will deliver on their assignments. this will also make such members to be alive to their responsibilities while sitting as members of such government committees. the members of the committee appointed pursuant to section 2(1) (e) shall hold office for a period of four years and may be eligible for re appointment for a further term as may be determined by the governor. these are appointed members from outside the official of government who have relevant skills and experience in boundary and border matters25. a member may be removed from office if he has: a) become incapable by reason of mental or bodily infirmity of discharging his duties b) been convicted of an offence which involves moral turpitude; or c) been involved in any act that may be considered inimical to the interest of the committee or the state. members of the committee shall be paid allowances as may be approved by the governor26. functions of the committee the committee is saddled with many functions. these functions were the main reasons that made the government of lagos state to enact the law by which the committee is created. the functions of the committee are as follows27: 1) the committee shall deal with inter and intra-local government and local council development area boundary disputes within the state. 2) it shall define and delimit inter and intra-local government development areas. 3) it shall liaise with the chairmen of local governments and local council development areas. 4) it shall identify and intervene in areas of potential disputes in the state. 5) promote good inter-community relationship among border dwellers. 6) promote peace and harmony between communities involved in boundary disputes. 7) monitor the activities of local government and local council development areas boundary sub-committees and deal with disputes that cannot be resolved by them. 8) evolve measures for joint utilization of amenities along local government and local council development area boundaries. 9) encourage negotiated settlement of boundary disputes. 22 the lagos state boundary committee law, law no. 13, 2009 section 1. 23 ibid, section 2(1) 24 ibid, section 2(2) 25 ibid section 3(1) 26 section 3(3) 27 section 4 olaoluwa: lagos state law and the committee on boundary matters: a legal analysis 33 10) carry out awareness and enlightenment campaigns on the importance of boundaries in order to foster peace and harmony among the people living along the boundary, and 11) prepare border area community development plan. the functions of this committee are expensive, delicate; arduous and touch and concerns national and international borders. elias once observed that the problems that confronted states of africa after the attainment of independence and urgent fall into two categories: the first are those that may be inherited based on the application of the principle of succession, the second are those that are the results of post independent alignments -(post creation -of states and local government alignments-emphasis mine) mainly in economic and technical aspects28. these include boundary disputes or frontier incidents resulting from the partitioning of africa among the great powers during the nineteenth century. for example, the boundary created between apapa and ajeromi by the colonialist remained today as the boundary between apapa and ajeromi local government areas in lagos state. however, elias contended that it would be wrong to infer from the examples of border conflicts in africa such as between ethiopia and somalia; somalia and kenya; algeria and morocco that boundary disputes between african states have always and everywhere led to skirmishes29. in order to quickly nib disputes in the bud or to bring peace and resolve dispute whenever they arise, the lagos state government has learnt from history and has put forward a formidable mechanism for peaceful resolution of whatever dispute either real or imaginary amongst the local government areas and local council development areas in lagos state by adopting a law for the creation of lagos state boundary committee. meeting of the committee the committee shall hold meetings from time to time. the chairman shall preside at its meetings and in his absence, a member shall be appointed to chair the meeting. the quorum for meetings shall be twothirds of its total members30. all decisions made at the meetings shall be by majority of votes of members present. this means that a simple majority of two-thirds of members of the committee is sufficient for decisions to be taken by the committee. since the total members of the committee are ten, seven are needed for quorum, four members will be able to take decision for the committee as the case may be. this is law and democracy at work. secretariat the committee’s secretariat is housed by a secretary appointed from the state civil service. there shall be professional and non-professional staff appointed to work under the supervision of the secretary for carrying out the job the committee31. sub-committee the committee may establish sub-committees in every local government and local council development area of the state. this sub-committee shall consist of; 1) the vice chairman of the local government and local council development area; 2) traditional ruler(s) from the affected area(s); 3) head of department of agriculture; 4) legal adviser; 5) information officer; 6) a representative of community development committee; and 7) a knowledgeable boundary expert appointed by the chairman of the local government and local council development area. the sub-committee32 shall be responsible for: 1) the resolution of inter-community boundary disputes; 2) liaising with the committee on boundary problems affecting local government or local council development areas; 3) identifying areas of potential boundary disputes and alert the committee of such disputes; 4) liaising with neighboring local government or local council development areas towards evolving joint programmes that may promote harmony among border dwellers; 5) encouraging settlement of disputes in their areas and where disputes cannot be resolved refer such to the committee; and 28 elias, t.o (edited and revised by richard akinjide) africa and the development of international law, 1988, p. 162. 29 elias, t.o, op. cit., pg. 162. 30 lagos state boundary committee law no. 13 of 2009, sections 5 31 ibid., section 6. 32 ibid, sections 7 and 8 african customary and religious law review (acarelar) 4 (2023) 34 6) carrying out awareness campaign programmes with a view to encourage peaceful relationship in their community. the members of the committee and sub-committee shall work within the ethics of operation. this should not work for personal gain, and should not release confidential information to unauthorized persons. funding of the committee there shall be established a fund for the committee for all its operations as may be approved by the governor33. to this fund shall be paid all revenue legitimately accruing to the committee. such revenue includes: 1) all subventions and budgetary allocations from the state government; 2) such money as may from time to time be granted or lent to the committee by the state or local government or local council development areas; 3) gifts, loans, grants in aid from national, bilateral and multilateral agencies; and 4) such other money or may be received by the committee in the course of its duties or in relation to the exercise of its functions under this law annual report the committee is an important organ of the lagos state government to the extent that it receives subventions and allocations from the state government. an adage says ‘he who pays the piper dictates the tune’. the committee is to fully account for its activities and make an annual report to the state government not later than the 30th of september every year. this report shall include an estimate of its expenditure and income to be submitted to the governor. the committee shall also cause its accounts to be audited six months after the end of each year by auditors appointed from the list of approved auditors provided by the auditor of the state34. miscellaneous provisions the governor may give such directives of a general nature or on matters of public regarding the exercise of its functions. the committee may, subject to the approval of the house of assembly, make such regulations as are necessary or expedient to give full effect to the provisions of this law35. this is a form of delegated legislation. it is practically impossible for the parliament to make laws concerning everything within its jurisdiction. the functions, rights, interests, obligations and liabilities of the committee existing before the commencement of this law, under any contract or instrument, shall be deemed to have been assigned to and vested in the committee established under this law36. this provision allows retroactivity of law in its application. in general, laws cannot be retroactive, especially when it works injustice against the parties to a dispute. but retroactivity in the application of this law will not necessarily work injustice against any party in dispute. this is so because the provisions of section 14(5) provides that ‘any proceedings or cause of action by or against the committee in respect of its rights, interests, obligations or liabilities which are pending before the commencement of this law may commence or be continued and any determination of the court, tribunal or other authority may be enforced by or against the committee’. the word ‘border’ under this law means the strip of land or maritime area straddling or lying along the corridor of a boundary within a stipulated distance. the word ‘boundary’ means the line of demarcation which delimits the extent of administrative jurisdiction of a state and its separate constituent units. borders are generally defined as geographical boundaries of political entities or legal jurisdiction such as governments, sovereign states, federated states and subnational entities37. it is also defined as a part that forms the outer edge of something…, a strip of ground in which as at the edge of a garden or walk38 or a strip of ground in which ornamental plants are grown39. paradoxically, a boundary is an entity demarcated from its surroundings. there is a boundary (a surface) demarcating the interior of a sphere from its exterior40. the law under review defines ‘community’ as a body of persons living near one another and sharing the same environment and common amenities41. 33 ibid section 10. 34 ibid; section 12. 35 ibid; section 14(l)(2) 36 ibid; section 14(3) 37 www.ukha.homeoffice.gov.uk, accessed on the 25 of february, 2023 38 www.answers.com/topic/border, accessed on the 25 of february, 2023 39 www.en.wiktionarv.org/wiki/border, accessed on the 25 of february, 2023 40 stanford encyclopedia of philosophy 41 lagos state boundary committee law no. 13, 2009, section 15. http://www.ukha.homeoffice.gov.uk/ http://www.answers.com/topic/border http://www.en.wiktionarv.org/wiki/border olaoluwa: lagos state law and the committee on boundary matters: a legal analysis 35 6. conclusion the lagos state boundary committee law enacted by the babatunde raji fashola administration in lagos (although small in number of sections) is like a mustard seed sown which will eventually germinate and grow to be a very big tree that will bear much fruits. today, we hear about killings in other states in nigeria, it is because of lack of peace and harmony. lagos being one of the fastest growing cities in africa needs peace, progress, development of infrastructure and harmony. the existence of 20 local governments’ recocgnised by the constitution has become grossly inadequate in the present situation of things. the diligent work (and observing all the rules of engagement) by this committee will deliver the needed peace and developmental base needed for harmonious relationship between all the strata of people in lagos state. african customary and religious law review (acarelar) 3 (2022) 48 | p a g e adoption practice under the child's rights law of anambra state* abstract children are the life wire of a marriage; they bring joy and feeling of accomplishment to marriages. it is in a bid to remedy the malady of childlessness in marriages, and to give life to marriages that couples who are unable to conceive resort to adoption of children. also, people of many religious backgrounds believe that their religion calls on them to adopt in order to help children, even people who aren't religious choose adoption to help make the world a better place. however, a child in anambra state cannot be lawfully adopted through mere religious, traditional, customary or communal process faulted with illegality. as such, adopting a child without adherence to anambra state child's rights law, 2004 is kidnapping and child trafficking. using a doctrinal research methodology, this paper analyzed the adoption practice under the anambra state child's right law, 2004. the paper found out that the procedure for adoption practice under the anambra state child’s right law, 2004 is relatively cumbersome. the provisions require adopters to complete various processes before adopting a child from an authorized and regulated child care facility or orphanage in view of the foregoing, this paper recommended among others that active measures should be taken to make child adoption process more effective and less cumbersome. keywords: adoption practice, child, child’s right law, anambra state, review. 1. introduction prior to nigeria's independence,1 there was no statutory provision for adoption in any part of nigeria. this lacuna in law created hardship in determining the legal relationship between persons who wrongly believed that they had adopted a child. thus, the first known legislation enacted to guide adoption issues was by the eastern region house of assembly in 19652 and this was followed by the 1968 adoption law of lagos state3. most other states have also made their own laws4 to guide adoption5. no state in the northern part of nigeria has any legislation on adoption. indeed, the enactment of the child's rights act6 appears to harmonize these laws and clarify adoption practice. however, because the rights and welfare of children in general, are matters within the legislative competence of the states under the 1999 constitution of the federal republic of nigeria, the act is enforceable only in the federal capital territory (fct), abuja. anambra state therefore domesticated the child's right act by the enactment of child's right law, 2004. the anambra state child's rights law7 is in pari materia with the provisions of child’s rights act8 with little modification to suit anambra state9 and remains the primary legislation for the protection of the rights of children in anambra state. perhaps with a possible intention of discouraging illicit adoption practice, the law boldly provides for the procedure for the adoption of children in anambra state. 2. what is adoption? adoption is the statutory process of terminating a child's legal rights and duties towards the natural parents and substituting similar rights and duties towards adoptive parents.10 it is also the taking of a child of a known or unknown parentage, but known for sure not to be that of the adopter as his or her own child.11 thus, it is a legal process pursuant to state statute in which a child's legal rights and duties towards its natural parents are terminated and similar rights and duties towards his adoptive parents are substituted thereby vesting the parental rights and duties relating to a child in the adopters, made on their application by an authorized court.12 moreover, the court *by helen obageli obi, llb, bl, llm, phd, lecturer, faculty of law, nnamdi azikiwe university awka, email:oh.obi@unizik.edu.ng; and *onyeka christian aduma, llb, lb, llm, phd, lecturer, faculty of law, nnamdi azikiwe university awka, email: onyiinosyke@yahoo.com 1 1960 independence of the federal republic of nigeria. 2 eastern religion adoption law 1965 (no. 12 of 1965). 3 now cap a5 laws of lagos state 2003. 4 old bendel state adoption law 1979 (no. 5 of 1979, applicable in edo and delta states, cross river state’s adoption law 1981 (no. 7 of 1981) ogun state’s adoption law 1983 (no. 13 of 1983), oyo state’s adoption law 1983 (no. 13 of 1983). 5 m attah, family welfare law in nigeria (benin: ambik press ltd, 2016) p 202. 6 2003, cap c50, laws of the federation of nigeria, 2011. 7 child’s rights law, 2004. hereinafter referred to as crl. 8 child’s right’s act 2003. 9 adoption is provided for in part xii (sections 128-151) of the crl of anambra state. 10 ba garner, black’s law dictionary (11th edn u.s.a: west group 1999) p199. 11 t o ibraheen, ‘adoption practice in nigeria-an overview’, (2013) 19 journal of law, policy and globalization, 7. 12 ibid. obi & aduma: adoption practice under the child's rights law of anambra state 49 of appeal in ibiam v ibiam & anor,13 defined adoption as the creation of a parentchild relationship by judicial order between two parties who usually, are unrelated; the relation of parent and child created by law between persons who are not infact parent and child. this relationship is brought about only after a determination that the child who is in an orphanage home has been abandoned, or that the persons parental rights have been terminated by court order. moreover, under the 1989 united nations convention on the rights of the child, adoption is recognized as one of the forms of alternative care for children who have been temporarily or permanently deprived of their family environment, and also for children who are unable to remain in their family environment. 14 it is described as a unique form of child care because it does provide permanent care and parenting for the adopted child as compared to other child care institutions like guardianship which is a temporary action don not terminate the parental rights of the biological parents. indeed, there are three sets of participants in an adoption, the adoptive parent seeking the adoption order, the child to be adopted and the birth parents of the child. 3. adoption distinguished from fosterage and guardianship adoption and fosterage can sometimes seem rather similar but they in fact have very significant and fundamental differences. fosterage is a relationship involving parental care given by someone not related by blood or legal adoption. fosterage unlike adoption involves giving parental care to a child who is not one’s natural or legally adopted child15. it is a temporary arrangement for a child's care while adoption is permanent. a child that is not properly cared for by his parents can be taken away to a foster home or institution where proper care and nurturing can be given to him. part ii of the anambra state child’s right law 2004 provides for fosterage. an applicant for fosterage like in adoption must be at least 21 years older than the child to be fostered.16.the foster parent is thus placed in the position of a natural parent. guardian on the other hand is one who has legal authority and duty to care for another person or property especially because of the others infancy, incapacity or disability.17 when someone, in most cases a child, is adopted, that means that all the rights and benefits of being that person’s parent will be transferred to another person or couple. unlike adoption, the biological parent still maintains the parental rights of the child in question. indeed, one of the most important difference between adoption and guardianship is permanency. adoption permanently places a child with a new family while guardianship is usually a temporary arrangement that places the child with a close friend or family member. in adoption, the parental rights of the biological parents are terminated. in other words, there is an absolute severance of the parenthood of a child from his natural/biological parents and same is vested on the adoptive parents. conversely, guardianship only confers control, maintenance, custody and other privileges but does not terminate the parental rights of the biological parents. the child in this context is an unmarried person below 21 years. a guardian may be appointed by court and the high court has the power to appoint guardians to act jointly with a parent or parents of a child where the court is satisfied that they are unfit to act alone18 the court may order the parent or parents of a child to make payment to a joint guardian towards maintenance of the child.19 the power of the court to appoint a guardian can be exercised even when the parents are alive if the court is of the opinion that the parent/ parents are unfit or have abandoned the child20 adoption may be effected either under statutory law or customary law. however, the rules regulating adoption differ from state to state and section 125 of the child's right act 2003 mandates every state to have its adoption law. 4. adoption and customary law adoption may be effected under customary law and can either be formal or informal. informal adoption takes the form of the adopter taking into his family the child of a relative or an orphan. the child is brought up and treated as the other children of the adopter. this arrangement if continued over a long period may mature into an adoption. 21 informal adoption is therefore the process by which foster parentage matures with time into adoption. also, where a widow with a child or a single mother (re)marries, she may bring her child into the marriage. the child is then brought up by the step-father whose name he may take and with time the relationship crystallizes into an adoption. 22 while in formal customary adoption; for instance, among the esans of edo state, a meeting 13 (2017) lpelr 42028 (ca). 14 t akinlawon, ‘adoption of childrennational and international perspectives’,https://akinlawonajomo.org/mrs-titilolaakinlawon-san-delivers-a-paper-on-adoption-of-children-national-and-international-perspectives-at-a-2-day-interactiveseminar-organised-by-the-nba-ikeja-branch-between-5th-and-6th-may-20/>accessed 27/6/22. 15 b a garner, black’s law dictionary (8th edn u.s.a, west grop) p 681 16 section 107 crl, 2004, anambra state 17 b a garner, op cit, p 725. 18 crl,s 86 (2,5). 19 ibid, s 86 (6). 20 enwonwu v enwonwu (1965) 2 all nlr 239. 21 t o ibraheem, ‘adoption practice in nigeriaan overview’, (2013) 19 journal of law, policy and globalization 11. 22 ibid. african customary and religious law review (acarelar) 3 (2022) 50 | p a g e of the families of the prospective adopter and the infant to be adopted is held. at this meeting, a formal transfer of parental rights and obligations is effected with the approval of both families. this is often followed by ceremonies performed to initiate the child to be adopted into the new family. indeed, adoption under customary law usually takes place between members of the immediate or extended family, although it may also involve people close to these families, such as friends or community members. by its nature, customary adoption varies from one custom to another, but it is common for the birth parents to give their consent and to maintain a role in the child’s life. perhaps, no matter the length of time an individual is cared for by another individual or family, the link between that individual and his roots can never be severed. as such, customary adoption unlike statute does not permanently terminate the biological parent’s right because it is believed that a child cannot be cut from its root. indeed, no writer is yet to identify any system of customary law in nigeria which recognizes adoption as a concept that entails a permanent and irreversible severance of the parent-child relationship existing between a child and his biological parents and the extinction of the consanguineous relationship between the child and his original family. 23 as such, adoption under customary law can be likened to the english notion of foster parentage. 5. the practice of adoption under the child's rights law of anambra state. adoption in anambra state is guided by the provisions of the child's right law of anambra state 2004. salient or prominent provisions of this law are to be considered. persons who may be adopted section 131 of the child's rights law of anambra state provides that the court shall not make an adoption order in respect of a child unless the parents of the child or, where there is no surviving parent, the guardian of the child consents to the adoption; or the child is abandoned, neglect or persistently abused or ill-treated, and there are compelling reasons in the interest of the child why he should be adopted. indeed, there are three categories of children that can be adopted24. i) orphan a person who has lost one or both parents (ii) abandoned by unknown parent; (iii) abused, neglected or there are compelling reasons why the child should be adopted. perhaps, with respect to the abandoned child, if such a child is found, he/she does not go to the home of anybody. it is rather reported to the police and there must be a care order before the child proceeds into the orphanage. the order is by a court within the jurisdiction where the child is to be kept pending the outcome of the investigation process and if the investigation comes out stating that the child is of no parentage, in other words, treat as abandoned, at that point the child would be declared eligible to be adopted and the bonding starts. the bonding starts through tripartite process. one is administrative private foster care by the ministry and/or placement order from the court otherwise known as fostering order. this lasts from three months to a maximum of eighteen months and after which, the adoption process will then be completed in the court. the court does the placement and determines the duration of the time. it could be three months six months depending on the court's discretion which is exercised in the best interest of the child. however, there are cases where orphanages set up to give care and support to abandoned children facilitate their adoption through sharp practice for financial benefits. some of these homes are registered with relevant government agencies and conversant with the rules guiding their operations but venture into the human trade for money. persons who may adopt three categories of persons are eligible to adopt. they include; 1. a married couple who have attained the age of 25 years and have obtained an order authorizing them to adopt a child25. 2. a married person, if he/she has obtained the consent of the other spouse26. 3. a single person if he/she has attained the age of 35 years and the child to be adopted is of the same sex with the adopter27. it is further provided that in all the above cases, the adopter or adopters shall be persons found to be suitable to adopt the child by the appropriate investigating officer28. 23 ibraheem, art cit, p 11. 24 ibid, s 131. 25 crl, s 132 (a). 26 ibid,s 132 (b). 27 ibid,s 132 (c). 28 crl, s 132 (d). obi & aduma: adoption practice under the child's rights law of anambra state 51 procedure for adoption a valid adoption requires an application for adoption to be made to the state welfare agency by the prospective adopter. in practice, such application for adoption is done in sequences and it is usually in the best interest of the child. this is because under the child's rights law, in everything pertaining to a child, the best interest of the child shall be paramount consideration,29 hence in learning about adoption the prospective adopters need to access their emotional readiness. the pre-approval application30 is made to the office of the ministry in charge of children matters and that is ministry for women and children affairs anambra state. the services of this ministry is found in section 128 of the child's rights law which provides that for the purpose of adoption, the state government shall establish and maintain a service designed to meet the needs of a child who has been or may be adopted, parents and guardians of the child, who has been or may be adopted; persons who have adopted or who may adopt a child. thus, on receipt of such application, it is acknowledged and the applicant would be invited to hold interview with director social welfare representative on appointed date; there would be screening session, certain documentary requirements will be collected and perused to determine whether the person is fit or suitable to adopt a child.31 the duration of time from the application to determining the outcome of the application does not take less than 6 to 9 months. the child's rights law of anambra state prescribes that an adoption process must not take less than 12 months32. if approval is granted, the prospective adopter is then able to search for an adoptable child in a government approved home33. perhaps, when a child to be adopted is available, the court will make a fostering order, the bonding beings and at the end of the fostering process, application is then made to the court for adoption order. the writers are therefore of the opinion that most times before the welfare officer makes the application for adoption, some prospective adopter who are naive, unscrupulous absconds with the child; sometimes the secret disappearance of the adopter is done with the knowledge of welfare officer after collecting certain sum of huge amount of money. the victim may think that legal adoption is completed through the assistance of welfare officer. thus, there is need for prospective adopters to ‘shine their eyes’34. it is also important to know that the social welfare officer appointed by the ministry is duty bound to move an application for adoption before the court. the application for the adoptive order is provided for under section 129 of the anambra state child's rights law, 2004. application to court for adoption order section 129 of child's rights law, 2004 provides to the effect that an application shall be made to the court in such form as may be prescribed, and shall be accompanied with marriage certificate or sworn declaration of marriage where the applicants are married couples, the birth certificate or sworn declaration of age of each applicant, two passport photographs of each applicant, a medical certificate of the fitness of the applicant from a government hospital, and such other requirement and information as the court may require for the purposes of the adoption process. an application is then made to the court for adoption order and the court on the receipt of such shall order an investigation to be conducted by a child development officer, a supervision officer; and such other persons as the court may determine, to enable the court to assess the suitability of the applicant as an adopter and of the child to be adopted35. the court in reaching a decision relating to the adoption of a child shall therefore have regard to all the circumstances, including the need to safeguard and promote the welfare and the best interest of the child throughout the childhood of that child; and ascertaining, as far as practicable, the wishes and feelings of the child regarding the decision and giving due consideration to those wishes and feelings, having regard to the age and understanding of the child36. moreover, adoption made in due process is recognized in foreign jurisdiction as in the case of elo v clo,37 where the applicants sought the recognition of a nigerian (anambra state) adoption order made in march 2014 in respect of their daughter, v. the applicants had come to the uk from nigeria as adults, clo as a refugee and elo under a marriage visa to a former partner, and been living in the uk for several years. v was a child adopted by the applicants from elo's home state, and who had been living in nigeria with elo's sister, a, pending the outcome of proceedings and the consequent immigration application for leave to enter the uk. as a consequence of the removal of nigeria, as of 4 january 2014, from this jurisdiction's list of countries whose orders for adoption are automatically recognised, the applicants were required to seek a 29 ibid, ss 2 & 1. 30 ibid, s 128. 31 the information elicited are: the name of adopter, date of birth, occupation, marital status, religion, highest education purpose of adoption, official address of the adopter, residential address, telephone number, preferred age of the child sought to be adopted (adoptee), passport photograph and any other information that may assist the adoption process. 32 crl, s 134 (1) (f). 33 the child is then allowed to stay with the prospective adopter for a period of three months 34 this is a nigerian expression, meaning ‘wake up’, ‘look at what’s really happening’. 35 crl, s 129. 36 ibid, s 129. 37 (2017) ewhc 3574 (fam). african customary and religious law review (acarelar) 3 (2022) 52 | p a g e declaration of recognition of the foreign adoption order and application to that effect was brought before the uk court. accordingly, the court made a declaration recognising the nigerian adoption order. consent required for adoption by virtue of section 135 of the child's rights law, consent is required to be given by the parents of the child where they are alive; otherwise, the guardian of the child will give consent to the adoption and the guardian may by a care institution. where a married person is the sole applicant for an adoption order, the court may require the consent of his spouse. also, the court may require the consent of any person other than the parent or relation of the child who has any right or obligation towards the child under an order of court or any agreement or under customary law section38. the court will be assisted to make the determination whether such person's consent should be obtained first with the assistance of a report by the child development office39. indeed, where any of the aforementioned persons has given consent, that person cannot withdraw the child from the care and possession of the applicant while the application is pending except with the leave of court40. it is worthy to note that under certain circumstances, the court may dispense with the requirement of consent. this will be the case where the person whose consent is required cannot be found such as where he is dead or missing. it may also be that the person cannot be traced and this will occur where the child is abandoned and the abandoner absconds; the person whose consent is required is incapable of giving it because he/she is a minor or insane or is mentally disabled;41 and the person is unreasonably withholding consent such on receiving monetary consideration. under section 135 (4), consent may be given unconditionally or subject to conditions with respect to the religious persuasion in which the child is to be brought up and the person giving consent need not know the identity of the applicant for the adoption order42. effect of adoption order for anambra state, this is provided for under section 144 of the child's right law, 2004. the section provides that upon the making of an adoption order, all rights, duties, obligations and liabilities, including any other order under the personal law applicable to the parents of the child or any other person in relation to the future custody, maintenance, supervision and education of the child, including all religious rights, right to appoint a guardian and to consent or give notice of dissent to marriage, shall be extinguished; and that there shall vest in, and by exercisable by and enforceable against the adopter all rights, duties, obligations and liabilities in respect of the future custody, maintenance, supervision and education of the child, and all rights to appoint a guardian and to consent or give notice of dissent to marriage of the child, as would vest in the adopter as if the child were a natural child of the adopter, and in respect of those matters, the child shall stand to the adopter in the relationship of a child born to the adopter. in essence, the adopter acquires all rights concerning the adopted child and can make unrestricted decisions concerning the life of the child. indeed, the most obvious legal effect of an adoption order is that it severs all parental rights and obligations between the adopted child and his biological parents. it establishes the legal relationship of parents and legitimate child between the adopter and the adopted child and completely transfers all the duties, obligations and liabilities to the adopted parents who shall begin to act as if they were the natural parents of the adopted child. moreover, the child becomes a complete member of the adopter’s family, takes on the adopter’s surname and assumes the rights and privileges of a biological child, including the right to inherit the property of the adopter. thus, for the purposes of the devolution of the property on the intestacy of the adopter, an adopted child shall be treated as a child born to the adopter. where a husband and wife are joint adopters of a child, they shall in respect of the matters specified under section 141 and for the purpose of the jurisdiction of the court to make orders as the custody and maintenance of and rights of access to the children stand to each other and to the child in the same relationship as they would have stood if the child were their natural child, and in respect of those matters, the child shall stand to them in, the relationship of a child born to the adopters. there is also a deemed relationship of consanguinity between the adopter and the adopted child. indeed, marriage between the natural child of the adopter and adopted child is deemed null and void. in essence, such a relationship of consanguinity is equally created between an adoptee and a natural child of the adopter. accordingly, marriage between the adopter or between his natural child and the adoptee is absolutely prohibited and rendered null and void.43 also, an adopted child cannot marry the daughter or son of his adoptive parents, because the effect of the adoption order is to create blood relationship between them. 38 crl, s 135 (2). 39 ibid, s 135 (3). 40 ibid, s 135 (7). 41 ibid, 135 (6). 42 ibid, 135 (5). 43a akinwumi, ‘the practice of child adoption and its legal implication in nigeria’, http://www.harlemsolicitor.com/2021/02/07/the-practice-of-child-adoption-and-its-legal-implication-in-nnigeria>accessed 27 june 2022. http://www.harlemsolicitor.com/2021/02/07/the-practice-of-child-adoption-and-its-legal-implication-in-nnigeria%3eaccessed obi & aduma: adoption practice under the child's rights law of anambra state 53 6. general requirements for adoption in nigeria, each state of the federation has its own law regulating the procedure for the adoption of children. however, in spite of the existence of diverse law on adoption in nigeria, the following conditions are common with most states including anambra state: (i) the process for adoption usually starts from designated state agency. nigerians adopting from their native country can adopt family members or children legally available for adoption from orphanages through the state adoption authority. in anambra state, it is the ministry of women affairs and social development. (ii) the activities of state agencies are run by social welfare officers who ensure that an applicant is a proper person to adopt the child. this is condition precedent before seeking adoption order from court. (iii.) a prospective adoption person or parent must not be less than twenty-five years of age and is, at least twenty-one years older than the child44. (iv) the applicant or in the case of joint application both or at least one of them and the child should be resident in the state45. the residency of the applicant or applicants in case of a joint application must have been for at least 5 years46. (v) a single male may not be allowed to adopt a female child unless the court is satisfied that certain exceptional circumstances exist to justify such adoption. (vi) a child is only legally adopted after an adoption order has been made by a court of law. (vii) adoption order will not be made unless a child has been in the care of a prospective adopter three months preceding the application for adoption47. (viii) the consent of biological parents or guardian of a child for adoption must first be obtained before an adoption order can be made, unless the court is satisfied of the need to dispense with such consent48. (ix.) an adopter must be ready to enter into a bound binding him or her to take good care of adopted child, give the child right to inheritance, take him or her out of the country only with the permission of the their social welfare officer and give social welfare officers access to inspect the home of the adoptive parents periodically. (x.) the child to be adopted and the prospective adopter must reside within the state where application is made and must be citizen of nigeria49. 7. conditions and consideration for making adoption order in nigeria (eligibility test) in practice, the court prefers that an applicant must fulfill the condition precedent at the child welfare department and obtain a report stating that the applicant is proper person to adopt the child. however, the court needs to satisfy itself that the applicant has attained the age of twenty five years and at least the applicant must be twenty one years older than the child to be adopted. thus, adoption is not restricted on marital status. also, the applicant must be resident in the same state as the child and must have been resident in the applicant state for at least five years. the applicant must be a citizen of nigeria and in the case of joint application; both parties and one of them must also be citizen of nigeria. moreover, the child must have been in the care of the applicant(s) at least 3 consecutive months preceding the date on which the order is made. the applicant must also have informed the social welfare officer of his intention to adopt the child at least twelve months before the making of the application. perhaps, adoption in nigeria is not restricted to any gender. however, the child must be the same sex as the person adopting.50 in assessing the child suitability for adoption requires that the court ascertain as far as practicable the wishes and emotional feelings of the child regarding the adoption having regard to the age and understanding of the child. moreover, no adoption order, can be made unless every required consent has been obtained and before making an adoption order, the court shall satisfy itself that every consent requires under the law has been obtain; that every person who has given his consent understands the nature and effect of adoption order, that those who must give consent must understand the nature effect of the adoption order51. such consent must be full and therefore free. where there is evidence of undue influence either way, the court will refuse to make an adoption order. thus, an applicant must not have received or agreed to receive and no person must have made, give to the applicant except payments ordered by the court52 and consent may be obtained in writing. 44 crl, 34 (i) (a). 45 ibid, s 134 (i) (b). 46 ibid, s 134 (i) (c). 47 ibid,s 134 (i) (e). 48 ibid,s 134 (1). 49 ibid, s 134 (1) (d). 50 crl, s132 (c). 51 ibid, 135. 52 ibid, s 136 (d). african customary and religious law review (acarelar) 3 (2022) 54 | p a g e 8. conclusion and recommendations this paper has analyzed the child's right law and adoption practice in anambra state. the child's right law 2004 is the principal legislation regulating adoption in anambra state which sets out the required qualification a person must fulfill to be eligible to adopt a child. the writers found out that the procedure for adoption practice under the anambra state child’s right law, 2004 is relatively cumbersome. the provisions require adopters to complete various processes before adopting a child from an authorized and regulated child care facility or orphanage thereby leading to illegalities, system vulnerabilities and corrupt practices within the child adoption domain; hoarding of adoptable children, request for extra adoption charges, diversion of already identified children and procedural circumventions. these acts have the tendency to threaten the consideration of the best interest of the child which should be the paramount consideration in the placement of children who are to be adopted. the writers therefore recommended that active measures should be taken to make child adoption process more effective and less cumbersome. security personnel should enforce the criminalization of the provision of the law against sharp operation of adoptions and make sure that there is reliable adoption investigation. courts too should not hesitate to annul adoption obtained illegally. again, government induced austerity and financial deprivation in the child care system create the opportunity for adoption officials to request tor undue charges under the claims of deploying same for adoption investigation. poor remuneration and poor logistic conditions of adoption official heightened the risk of corruption and government should improve these service conditions. most states in nigeria that have not domesticated the child's right act, should do so to realize adoption uniformity envisaged by the act. the northern states do not support the practice of child adoption as in the act. they rather have an alternative child placement arrangement called ‘ka falah’ which is rooted in the islamic religion system. this lacuna is constantly being leveraged on by unscrupulous elements to penetrate illicit adoption practices. overtly explored, it is behooving of concerned stakeholders to take targeted steps towards implementing proactive strategies that would ensure a unified system of adoption in nigeria and curb to the barest minimum illicit adoption practices. acarelar 2 (2021) page | 105 justifying the call for regulating compensation for oil spillage in the niger delta: a legal perspective* abstract this study sought to justify the call for adequate compensation for oil spillage victims in the niger delta. the exploration of oil in nigeria is a major source of national development. incidentally, it is also a source of environmental discomfort, degradation and grief to the oil producing areas in the country because of the devastating effect of spillages from pipelines and oil wells. the problems of environmental pollution with regard to oil and gas mining operations in nigeria are multifarious. while it could be legal, it could also be political or economic. the violators, the multi-national companies, unlike their foreign counterparts refuse to pay fair and adequate compensation when pollution occurs. even when compensation is paid, different standards are applied which amounts to double standard. this study looked at some of these problems involved in obtaining fair and adequate compensation in the oil and gas sector. methodology adopted is doctrinal while the approaches are analytical, historical and comparative. this involves desk and library research; placing reliance on primary and secondary source materials relevant to compensation arising from oil and gas pollution. the primary source materials include case laws, statues, regulations, international treaties and conventions. a literature review of secondary source materials, textbooks, journals, articles and commentaries, case citations, legal news, legal dictionaries, law reviews, legal treaties and legal encyclopedias was also undertaken. keyword: oil spillage, compensation, environmental degradation, niger-delta 1. introduction the exploration of oil in nigeria has become a major source of development but incidentally, it is also a source of environmental discomfort, degradation and grief to the oil producing areas in the country because of the devastating effect of spillages from pipelines and oil wells. olanrenaju fagbohein 1 and 2 were of the view that, nigerian courts have not reflected much influence in the area of restoration aftermath of oil pollution. the courts had cause to intervene on regular basis to give remedy by way of compensation to victims of oil pollution that has been prevented on the right to relief as structured under private law. akpezi eleyae ogbuigwe 3 and simpson & fagbohum 4 opined that, no direct provision has been made for compensating victims of environmental and industrial pollution, and the few provisions on compensation cannot properly cater for the particular situation of such victims. the provisions of the land use act, the petroleum act, mineral and mining act, and other legislations made in respect of compensating victims of environmental degradation only mentioned about compensation, but does not go further to specify how a victim can be compensated specifically. the provisions of the above legislations had no further solution on how a victim can be adequately compensated. nwosu in his work 5 observed that, there are inherent difficulties faced by victims in their quest to make claim under these common law rules. victims of environmental pollution, who relied on these claims, cannot get adequate compensation. ebeku’s 6 work in this area of environmental law just like many other authors examined the common law of tort based claims of remedies. but he did not discuss on how fair and adequate compensation will be paid to victim(s) who suffers injury arising *by obioma helen onyi-ogelle, phd, reader, faculty of law. nnamdi azikiwe university awka,anambra state; and *theophilus jared, llm, phd candidate, faculty of law. nnamdi azikiwe university awka,anambra state. 1see the law of oil pollution & environmental restoration. a comparative overview published by odade publishers, comfort house (3rd floor) 13 hughes avenue alagomeji, yaba, lagos, nigeria) and adamu kyuma 2see environmental protection law in nigeria, published by ababa press ltd, 159 oyo road, coca cola area sanjo, ibadan 2012 3see compensation and remedies for victims of crime in nigeria edited by sade adetiba, published by the federal ministry of justice (1990 vol 5) 4see environmental law and policy published by law centre, faculty of law, lagos state university (1990) reprint in 2000 5see nwosu l.e. appropriate mechanism for entertainment of environmental claims juriscope. a completion of work shop materials of alpha juris containing legal education 1st ed. design constrain ikeja, lagos, 2001 series 6 see ebeku k.s.a, legal remedies for victims of environmental pollution in nigeria, nlpj council of legal education, nigerian law school 1998 vol.2 onyi-ogelle & jared: justifying the call for regulating compensation for oil spillage in the niger delta: a legal perspective page | 106 from oil pollution. fekumo 7 opined that, the victims of environmental pollution should proof strict liability and damages given the poverty level of most victims of environmental pollution in nigeria. but the proof of strict liability will not amount to adequate compensation to victims who suffers injury arising from environmental pollution. ibidapo-obe’s 8 limits himself from criminal liability resulting from pollution fines and other penalties, but never made mention on how victims of environmental pollution will be adequately compensated, and his assertion fall short of the expectations of the victims that suffers injuries arising from oil and gas exploration in nigeria. adekunbi imoseni and nzeribe abangwu in their article,9 dwelt on the factors inhibiting compensation of oil spill victims in the nigeria oil industry, but never discussed the solutions or how such victims be compensation adequately. according to section 11(5) of the oil pipelines act 1959, 10 the holder of a licence shall pay compensation: (a) to any person whose land or interest in land (whether) or not it is land in respect of which the licence has been granted) is injuriously affected by the exercise of the rights conferred by the licence, for any such injurious affection not otherwise made good, and; (b) to any person suffering damage by reason of any neglect on the part of the holder or his agents, servants, or workmen to protect, maintain or repair any work, structure or thing executed under the licence, for any such damage, not otherwise made good, and; (c) to any person suffering damage (other than on account of the malicious act of a third person) as a consequence of any breakage of or leakage from the pipeline or an ancillary installation, for any such damage not otherwise made good. if the amount of such compensation is not agreed between any such person and the holder, it shall be fixed by court in accordance with part iv of this act. while section 20 (2) of the oil pipelines act11 provides for the various heads of compensation, and this section must be read alongside with section 11(5), section 20(2) provides as viz: (i) buildings, crops or profitable trees, (ii) disturbance (iii) injurious affections and (iv) loss (if any) in value of the land or interests in land. it is settled law that the principal liability of the licensee arising from the above provisions is to pay compensation (as distinct from damages) from any injury or damage caused by any person.12 some observations could be made on the above provisions. the liability in section 11(5) (a) covers damages arising from the acquisition of land or interest in land for the laying of the oil pipeline and ancillary installations. it also encapsulates damages to third party property rights outside the area covered by the licence.13 it also provides for injurious affection which is akin to nuisance.14 secondly, section 11(5) (b) provides for negligence, and this had provided an escape route for petroleum operators. certainly, an action for negligence is incompatible with a claim for compensation. in the former the fault element on the part of the defendant is paramount, whereas for compensation, the act of the defendant maybe perfectly lawful and faultless, what the plaintiff needs to show is that he has suffered some injury. 15thirdly, section 11(5) (c) provides for strict liability, which is akin to the rule in rylands v fletcher, with only the two defenses of default 7see fekumo j.f. ‘civil liability for damages cause by oil pollution’ in omotola (ed) environmental law in nigeria including compensation, university of lagos, 1998 8see ibidapo – obe a ‘criminal liability of damages cause by oil pollution’ in omotola (ed) environmental law in nigeria including compensation, university of lagos, 1998 9see compensation of oil spill victims in nigeria, the more the oil, the more the blood singaporean journal of business economics and management studies vol.2, no.3, 2013, school of law and securities studies, babcock university ilesan reno, ogun state, nigeria 10. now cap of lfn 2004 3. supra 12see j.f fekumo, disturbance and injurious affection in the nigerian petroleum industry (1998) springfield publishers, owerri, nigeria) p.i.i. 13see law and petroleum industry in nigeria, current challenges, essay in honour of justice kate abiri edited by festus emma deinduomo, published by malthouse press limited, 2009, 143 onitana street, off stadium hotel road, surulere lagos state, pp 140-141. 14see ehorlor v isahasa (1992) 2 nwlr (pt 223) at pp 336-339, k. davis, law of compulsory purchase and compensation (1984, 4th ed, butterwortts, london, pp 178-179. 15see per nnaemeka-agu jca (as he then was) in ndah v attorney general, bendel state and others (1979) 12 ca 243 at pp. 267-268 (1980) 1rslr, 1 at p.12. acarelar 2 (2021) page | 107 of the plaintiffs and malicious act of a third party. not minding the fact that the provisions of section 11(5) (a) (b) (c) of the act incorporated the common law remedies of nuisance, negligence, and the rule in rylands v fletcher, there is no need to allege any of these torts as the duty to pay compensation is statutory. all the plaintiff required is to allege and prove that the damage was caused by the defendant, arising from the execution of the works authorized by the statute. it is then left for the defendant to raise the defence of the default of the plaintiff or the malicious act of a third person. 2. national laws and regulations on compensation of victims of oil spill the nigeria legislations on oil and the environment is provided by several enactment including petroleum act (originally, degree n0.31 of 1969)16, oil pipeline act 17, minerals and mining act 18, oil in navigable waters act, 19 and the associated gas (re-injection) act 197920, association gas reinjection act (continued flaring gas) regulations, a subsidiary legislation made under section 3 and 5 of the act, the petroleum (drilling and production) regulations of 1969 made under the petroleum act, environmental impact assessment act of 199221, the federal environmental protection agency act 22 and its accompanying regulations made under the act and the environmental guidelines as made by the director of petroleum resources (dpr). these laws and others provide the rules and regulations for the oil industry in nigeria. national environmental standards and regulations enforcement agency (establishment) act (nesrea) 2007 (2007 act n0.25 this act was enacted to provide for the establishment of the national environmental standards and regulations endorsement agency, which is saddled with the responsibility for the protection and development of the environment in nigeria and for related matters. it has a total of 38 sections, structured under 6 parts. the act is a belated response of the law to which was at a time a revolutionary change in the structure of environmental enforcement and regulations in nigeria. it was pursuant to fepa act that the federal environmental protection agency (fepa) was established. consequently, when the agency was scrapped out in 1999 and the ministry of environment assumed its functions. expectations were high that, the fepa act would be reviewed to reflect the new development and that in the course of a review, provisions that were inarticulate in the fepa act, would become articulate in succeeding legislations. the tenor of the functions of the agency thereafter changed in the way, it exempted the oil and gas sector from the purview of nesrea. section 7 in certain respect provides that the agency shall; i) to enforce compliance with regulations on the importation, exportation, distribution, storage, sale, use, handling and disposal of hazardous chemicals and waste other than in the oil and gas sector 23 ii) to enforce through compliance monitoring, the environmental regulations and standards on noise, air, land, seas, oceans and other water bodies other than in the oil and gas sector 24 iii) to enforce environmental control measures through registration, licensing and permitting system other than in the oil and gas sector25. iv) to conduct environmental audit and established data bank on regulation and enforcement mechanisms of environmental standards other than in the oil and gas sector26. v) to create public awareness and provide environmental education on sustainable environmental management, promote private sector compliance with environmental regulations other than in the oil and gas sector and publish general scientific or other date resulting from the performance of its functions. 27. 16 now cap p.10 lfn 2004 17 degree n0. 31 of 1956, now cap 07 lfn 2004 18 degree n0.31 of 1956, now cap pl.12 lfn 2004 19 degree n0.38 of 1968, now cap 06 lfn 2004 20 now cap a25 lfn 2004 21 cap e12 lfn 2004 22see 1988 now cap f10 lfn 2004 23see section 7 (g) nesrea act 24see section 7 (k) nesrea act 25see section 7 (j) nesrea act 26see section 7 (k) nesrea act 27see section 7 (i) nesrea act onyi-ogelle & jared: justifying the call for regulating compensation for oil spillage in the niger delta: a legal perspective page | 108 petroleum act and other applicable regulations the schedule1, paragraph 36 of the act provides thus: the holder of an oel, opl and oml shall in addition to any liability for compensation to which he may be subject under any other provision of this act, be liable to pay fair and adequate compensation for the disturbance of surface or other rights to any person who owns or is in lawful occupation of the licensed or leased lands. where the oil company fails to perform its duties and obligations imposed on by statute and such neglect causes any damage or injury to an individual or community as the case maybe, that company will be held liable to pay compensation. the petroleum (drilling and production) regulation 1969 issued under section 9 of the petroleum act, contains specific protective measures for preserving the land resources in areas impacted negatively upon by oil drilling operations28. petroleum (drilling and production) regulations the licenses granted to the companies are made vicariously liable for all actions and liabilities of independent contractors carrying out work on their behalf29. the oil companies are generally obliged to adopt all practicable precaution including the provision of up to date equipment to prevent pollution and shall take ‘prompt steps to control and if possible end it’ 30 if pollution does not occur it is submitted that regulation 25 envisages a situation where, there will be mass destruction of marine life due to oil pollution and therefore urge the lessee to employ appropriate standards (of international standard possibly) to prevent, clear and control oil pollution. however, we suggest that, the entire gamut of this provision is vague in that, what amounts to ‘practical precaution’ is not articulately specified. it therefore means provision of up to date equipment, which is subject to the approval of the director of petroleum resources. oil pipeline act the oil pipeline is the cheapest and most convenient means of transportation of petroleum from the well location to its final destination. this system is applicable to transportation of gas, in construction of pipelines and carrying out its operations, the oil company is under an obligation to pay compensation for damages breakage or a leakage from oil pipeline or its ancillary installations. the oil pipelines act 31 provides thus; ‘the holder of a license shall pay compensation to; a) to any person whose land or interest in land (whether or not it is land in respect of which the license has been granted) is injuriously affected by the exercise of the rights conferred by the license, for any such injurious affection not otherwise made good, and b) to any person suffering damage by reason of any neglect on the part of the holder or his agents, servants or workmen to protect, maintain or repair any work structure or thing executed under the license, for such damage not otherwise made good, and c) to any person suffering damage (other than an account of his own default or on account of the malicious act of the third person) as consequence of any breakage of or leakage from the pipeline or an ancillary installation or any such damage not otherwise made good, d) if the amount of such compensation is not agreed between any such person and the holders, it shall be fixed by a court in accordance with part iv of this act’. it should be noted that, holder of a license under this heading, is to exercise his powers subject to the provision of this act and any other enactment or rule of law. 32. therefore, claims for compensation may also succeed under this heading. in the case of san ikpede v shell b.p petroleum development company (nig) ltd, 33 the plaintiff claim for fair and adequate compensation for oil spillage arising 28see m.t. okorodudu fubara (1998) environmental protection p.378 29see regulations 15(2), petroleum (drilling and production) regulations 30see regulation 25 ibid 31see section 11(5) oil pipelines act 32see section 11(6) ibid 33see 1973) m.w.s.j.61 acarelar 2 (2021) page | 109 from the leakage of the defendants oil pipeline succeeds under section 11(5) (c) of the oil pipelines act. according to ovie-whiskey j. (as he then was) 34 opined as quote; …all companies who have been granted a license to prospect for crude oil in the country under the petroleum degree 1969 n0.51, can only lay pipes for carrying crude oil on or under the land by virtue of a license granted to them under provisions of the oil pipelines act cap 145 35. the act also made it abundantly clear that the holder of such license shall pay compensation to any person suffering damages as a consequence of any leakage from the pipelines… environmental guidelines and standards for the oil and gas industry the guidelines specifies the needed standards of obligations placed on oil operators, and where there is environmental pollution caused abruptly by oil and / or gas. the guidelines makes reference to mystery of spills and liability of the polluter thereof, provision is also made for circumstances where the licensee/lessee shall be responsible for the containment and subsequent recovery of any spill, which is discovered within the operational base whether or not its sources is known. this provision makes the explorer and the communities including government to be conscious of the protection of the environment however, whether the fund for reimbursement is always available is yet another matter for consideration.36. when pollution occurs, the polluter is held solely liable. 37 but where there are multiple pollutions from different explorers, liability is joint and several. 38 the polluter is also responsible in restoring to, as much as possible the original state of any impacted environment. 39. it is suggested that this idea maybe for reached, as the environment cannot be returned to full normalcy after pollution even though, it will take time and considerable amount of money to fit it. for water pollution, the guideline provides that, there shall be no visible oil seen within the first 30 days of the occurrence of the spill, no matter the extent of the spill and for swamps, there shall be no single stain the first 60 days of occurrence of the incidents. 40. the guidelines seem to be parallel with situations in nigeria, as they are seemingly not spilled. there are situations when spillage in nigeria will last for months without being cleaned by the pollutants. for example, it was reported 41 that spdc has not always responded promptly in the clean-up, clamping or remediation of spilled crude. according to the legal advisory panel, the inspection report of representative committee on public hearing dated 27th may, 2007, indicating that the committee discovered some oil spots yet to be cleaned by spdc in biseni. also, the guideline emphasizes more on oil to the neglect of gas flaring. it is suggested that, the guideline be reviewed to reflect gas flaring instead of leaning more on oil spillage. various laws concern the obligation of the explorer which create liabilities for them, when there is pollution caused by their act of oil and gas operation. oil in navigable waters act, 1968 the transportation of petroleum is essential in the oil industry, which necessitate the use of ships, railway lines by roads, (thus, the use of tankers). it is indeed in the process of transpiration that most spillages do occur. this was the circumstances in the torrey canyon tanker off the coast of england in 1976 and the santa barbara california incident of 1969 which precipitated large oil spill pollution42. also, oil spillage may occur at the refineries during the processing period which may include crude oil mixture containing oil effluences, mud or other fluid substances. 43 criminal liabilities under the degree includes; a) discharge of oil into prohibited sea area, see section 10(1), oil in navigable waters act, 196844. 34see supra at pp.88-89 35see section 11(1), (2), (3) and (4) of the oil pipelines act 36see paragraph 4.01 environmental guidelines 37see paragraph 4.01 environmental guidelines 38see paragraph 8.1. ibid 39see ibid 40see ibid, see generally thisday, february 19, 2001, p.46 41see news watch, february, 20th 2006 ‘niger delta the $1.5billion controversy p.25 42see j.a. omotola; ‘environmental laws in nigeria including compensation’ quoted in ‘critical liability for damages caused by oil pollution’ by a. ibadapo-obe p 234 43see regulations 25, petroleum drilling and production/regulations 44 now cap.06 lfn 2004 onyi-ogelle & jared: justifying the call for regulating compensation for oil spillage in the niger delta: a legal perspective page | 110 b) discharge of oil into nigeria waters45. c) failure to install oil pollution prevention equipment on ships46. failure to keep record of oil matters47. d) harbour authority failing to provide oil reception facilities48. e) failure to report presence of oil in harbor waters49. harmful waste (special criminal provision, etc) act now cap h1 lfn 2004 the harmful waste was defined in this act as ‘any harmful wastes whether solid semi-solid or liquid’ 50 act and as injurious, poisonous toxic or noxious substance, and in particular includes nuclear wastes emitting radioactive substances if the waste is of such quality, whether with or without other assignment of the same or different substances as to subject any person to the risk of death, fatal injury or in incurable impairment of physical and mental health51. the act also prohibits the carrying, dumping, depositing or causing to be carried, deposited or being in possession or any waste which is harmful. the penalty on conviction is life imprisonment, forfeiture of vessel and of land by or on which the harmful waste is dumped respectively. 3. conclusion and recommendations the enforcement of the various environment legislations in nigeria is bedeviled with so many problems, which involve balancing the divergent yet, connected with social and economic interests. for laws to be effective beneficial and enforced, they must be capable of being obeyed without causing any form of damage to the other areas or aspects on which the society stands. these considerations precipitates rise to more complex issues of the political economy and ideology of the society, they seek to regulate, and the contractions and conflicts which arise by their various nature. for instance, the courts for economic reasons have consistently refused to grant an injunction against any polluter for economic reasons. the defence of sabotage in a civil cause or matter is immaterial sabotage should be made strictly a criminal offence, and should not be involve simply to deny innocent victims of their rights to compensation. therefore, that the act of sabotage was done by an unknown party should not avail the operator of the liability to pay fair and adequate compensation. the person alleged to have committed the act should be an identifiable being and not just an imaginable person. also, the requirement to prove or plead negligence under section 11 (5) (b) of oil pipelines act in order to succeed in a compensation claim is not necessary. the polluter should be held liable for any pollution and that the issue of thirdparty intervention should not arise. section 6 (6) (b) and 286 of the constitution confers general unlimited jurisdiction on the high court. also, section 42 gave concurrent original jurisdiction to both the state high court and federal high court on matters of interpretation of the fundamental rights provision in chapter iv of the constitution by virtue of the definition of ‘court’ in section 277 (1) of the constitution to mean the federal high court or the high court of a state. 52 also, section 6(4), 11 (5) and 19 of the oil pipelines act conferred jurisdiction on the magistrate courts and high court of a state on matters of compensation. however, the enactment of the 1999 constitution seems to have changed the position stated above. section 272 (1) of the 1999 constitution has deleted the word ‘unlimited’ vis-à-vis jurisdiction as contained in section 236 (1) of the 1979 constitution. in the same vein, section 272 (1) of the 1999 constitution is now subject to the exclusive jurisdiction conferred on the federal high court in section 251 (1) of the 1999 constitution. the exclusive jurisdiction of the federal high court in matters pertaining to mines, minerals, oil fields and oil mining was confirmed by the supreme court in the case of shell petroleum development 45 now cap.06 lfn 2004 46see section 5(6) ibid 47see section 7 ibid 48see section 8 (8) ibid 49see section 10 ibid 50see section 1 (3) harmful wastes (special criminal provision, etc 51see section 13 ibid 52 see j.f fekumo, the problem of jurisdiction p.14 acarelar 2 (2021) page | 111 company of nigeria limited v. abel isaiah 53 and it was also judicially re-affirmed in plethora of cases. 54 shell petroleum development co. of nigeria limited v. otekmalba maton 55. the decisions are sound in principle. the justices of the supreme court were up on their judicial oath. but the judgment could be likened to an atomic bomb thrown on the helpless citizens of the oil-producing areas, particularly in the niger delta region. that day, justice died. since 1998, so many cases on compensation for oil and gas have been struck out for want of jurisdiction in the high courts. many are on the awaiting list, and so many of them have been withdrawn. more so, the oil companies do not help matters either, they are only interested to make ex gratia payments and not compensation, because of the enormous damage they too know that is being done to the inhabitation. no state has more than one federal high court, and the court is being located in the state capital, far away from the victims. this is justice denied. some victims do not have the filing fees in the federal high court are beyond the reach of the poor victims of oil and gas pollution. 56 it is submitted that, the above constitutional provisions need to be commended to achieve the noble aim of the law which is justice. the law should contain pragmatic measure which will ensure adequate compensation, for victims of oil pollution. industrial development can only be effectively carried out if, there is intelligent government regulation and control. the government in enacting such legislation should take into consideration the following; 1) the need for victims of environment and industrial pollution to be fully and adequately compensated under a system based on strict liability. such liability should be placed upon the exploiting companies because they are in good position to bear the risk as they are the ultimate beneficiaries as they made much profits. 2) compulsory insurance by such industries. this would ensure that victims of such pollution would be duly compensated. 3) compensation for pollution damages should be prompt and procedures for such damages should be simple and cheap. 4) the main principle to be applied in arriving at the amount of compensation to be awarded in particular cases should be the need to ensure that the standard of the victim does not fall but rather improves. it is recommended that it will be proper to entertain matters relating to mines and minerals etc at the state high court by way of enforcement of fundamental rights for compensation on the property compulsorily acquired by the state. by so doing, it will alleviate the injustice experienced by victims of oil producing states who suffers environmental degradation and other health hazards without hope of embracing justice, due to the institutionalized provisions of our various legislations or laws. the lands tribunals as established under the abolished public lands acquisition (miscellaneous) provisions) act, 1976 57 should be reviewed, and authority be vested on the tribunal to generally hear land compensation matters58. the laws made by the federal government in respect to compensation arising from oil and gas operations in nigeria which include but limited to the oil pipelines act, petroleum act, constitution of the federal republic of nigeria (1999) as amended, mining and minerals act, land use act e.t.c, be harnessed together and a new law be enacted by the national assembly which will address once and for all the bases of determining fair and adequate compensation to the environmental victims who suffers damage or injury arising from oil and gas operations in nigeria. the federal government should establish special courts or tribunals in the niger delta region for environmental matters arising from oil and gas operations. there should be appointment of judges that specialize on environmental matters into the environmental courts that will be so established. it is our humble view that such judges with environmental education, awareness and knowledge, will dispense environmental matters / litigations expeditiously and on its merits. also, judges should be liberal on common law interpretation to avoid unnecessary rigidity to technicalities as was in the case seismograph services, onakpasa 59, oronto 53 see supra 54 see bary v eric (1998) 8nwlr (pt.562) 404 at p. 416 55 (2000) fwlr (pt.47), 1030 at p.104 (2001) 9 nwlr (pt. 719) 541) 56 see j.f. fekumo supra 57 see act n0.33 of 1976, section 12 58 see j.f. fekumo, op cit. pp.24-28 59 see supra onyi-ogelle & jared: justifying the call for regulating compensation for oil spillage in the niger delta: a legal perspective page | 112 douglas c spdc 60 and spdc ltd. v. enoch 61. there should be cross-fertilization of judicial ideas on environmental matters between nigeria and the developed foreign jurisdiction. non-government organization in the niger delta region should rise to the challenges of educating the public on the need to protect the environment in view of the importance of disturbance and injurious affections as heads of claim in compensation, to enable us arrive at what may be considered as fair and adequate compensation. it is recommended that, only the relevant provisions of the oil pipelines act and the petroleum act should be relied on. with regard to gas flaring which have over the years impacted negatively on the nigerian environment and indeed globally, it is recommended that one quick outlet to the termination of gas flaring in nigeria is the expansion of nlng project in nigeria, creating more gas fields and completing the proposed west african gas pipeline projects. these developments will create new markets for the sale of the abundant gas in nigeria and will generate a major source of revenue that could in no distant time strengthen the nigeria currency and economy, while availing the teeming unemployed youths with better employment opportunities. 60 see supra 61 see 1992 8 nwlr (pt. 259) 335 ibe: impact of religious law and customary law on societal development: the african narrative 26 | p a g e impact of religious law and customary law on societal development: the african narrative* abstract the impact of religious law and customary law on societal development in africa is a complex and multifaceted phenomenon that varies across different regions, cultures, and historical contexts. this article discussed the impact of religious law and customary law on the development of africa, focusing on how they have influenced various aspects such as governance, social cohesion, education, and economic development. in achieving this, the doctrinal research method was resorted to and data were collected through reference to both primary sources and secondary sources. it was found that religious law and customary law have profoundly shaped african societies. while they offer valuable contributions to social order, cultural identity, and moral values, they also present challenges regarding gender equality, human rights, and adaptation to a changing world. the ongoing development of african societies hinges on finding a balance that respects tradition while promoting progress, justice, and equality for all. african societies need to integrate religious and customary law to promote legal pluralism, access to justice, and cultural diversity while upholding human rights and social justice. keywords: religion, custom, religious law, customary law, development 1. introduction religious law is a manifestation of divine intent as opposed to customary law, which is a product of social processes. this is not to argue that divine intent is a given; in fact, legal experts frequently interpret religious law after it has been established. religious law often follows a predetermined procedure and is documented in teachings and commentaries. both dynamic and static states are possible. static because some customs and beliefs haven't altered in hundreds of years and because divine will never changes. religious movements are dynamic due to their ability to spread their message and assimilate the customs and beliefs of new followers. it has been observed that religious rules refrain from directly violating customary or legislative laws by not influencing their changes. because of the possibility that its divine law would only apply to adherents of that faith, it might also be a strategy used to protect a minority cultural group inside the host community. customary rules and customs play a major role in determining how right and wrong are seen in most african communities. what sets custom apart from other legal sources is the consistent application of precepts to formulate a solution to a novel issue. usually, this is determined by precedent in comparable circumstances.1 because customs are often flexible and reflective of society, they can change throughout time to improve or deteriorate how things are done. custom can be used to determine the appropriate course of action in some situations, and morality is not necessarily the basis for defining right and wrong.2 throughout history, religion and rituals have been crucial to the development of africa. african ethnic groups varied religious and cultural practices have influenced their cultures, economy, and political structures.3 the traditional political structures of many african nations are strongly shaped by religious doctrines and cultural practices. leaders in these civilizations are frequently seen as spiritual leaders or deities whose legitimacy stems from their links to the spiritual realm. this has influenced african administration in both positive and bad ways. while it has occasionally resulted in authoritarianism and the silence of dissident voices, it has also strengthened the continent's feeling of solidarity and togetherness. 2. historical development of customary law and religious law in africa development of customary law systems in africa africa's customary law systems have developed over a long and intricate historical period, reflecting the diversity of the continent's cultures and customs. these systems continue to coexist with official legal systems in many african nations, where they have been an important part of society's governance for millennia.4 i shall examine the historical growth of african customary law systems in this article, paying particular attention to their inception, development, and applicability today. african customary law systems have its roots in pre-colonial indigenous cultures that created their own legal and administrative frameworks based on customs, traditions, and social norms. these were frequently oral systems in which norms and behaviours were transmitted orally between generations through rituals, storytelling, and conventions.5 african civilizations were profoundly woven together by customary law, which governed everything from marriage and inheritance to the sharing of land and the *by eric chigozie ibe, llb, bl, llm, phd (in view), lecturer, faculty of law, veritas university abuja; email: ibee@veritas.edu.ng; ericibe.c@gmail.com; tel: 08161304100. 1 simon roberts, ‘introduction: some notes on african customary law,’ journal of african law [1984] (28) (1–2) 2. 2 david caron, ‘customary law: its place and meaning in contemporary african legal systems,’ journal of african law [2006] (9) (2) 83. 3 francis snyder, ‘customary law and the economy,’ journal of african law [1984] (28) (1–2) 34. 4 simon roberts, ‘introduction: some notes on african customary law,’ journal of african law [1984] (28) (1–2) 4. 5 wiley cramble, ‘methods of recording native customary law,’ public administration and development [1949] (1) (3) 136. mailto:ericibe.c@gmail.com mailto:ericibe.c@gmail.com african customary and religious law review (acarelar) 5 (2024) 27 | p a g e settlement of conflicts.6 native american communities were forced to adopt european legal systems when colonial forces arrived in africa in the 19th century, placing pressure on indigenous law systems.7 nonetheless, a lot of african groups persisted in following their traditional ways because they saw them as essential to their autonomy and sense of cultural identity. as a result, many african nations now have dual legal systems, with official legal systems founded on european institutions and laws coexisting with customary law. after gaining freedom from colonial domination throughout the 20th century, african nations worked to create legal systems that were authentic to their own cultural traditions and values.8 this resulted in a resurgence of interest in customary law as a way to advance justice, reconciliation, and social cohesion in african countries. governments in the recently independent states started to acknowledge the value of customary law systems and included them into their legal frameworks. harmonizing africa's informal and formal legal systems has been increasingly important in recent years as a means of promoting equality, justice, and human rights. numerous african nations have passed laws that incorporate aspects of international human rights law and legal norms with the recognition and protection of customary law.9 a more complex and inclusive legal system that aims to strike a balance between customary practices and contemporary legal ideas has resulted from this. africa's diverse and rich cultural legacy is reflected in the historical evolution of its customary law systems. these systems continue to be extremely important in determining legal norms and practices across the continent, having changed over time to suit the shifting demands and values of african civilizations. african nations may leverage the advantages of both traditional and modern legal systems to advance justice, equality, and human rights for everyone by accepting and modifying customary law to suit modern difficulties. origin of religious law in africa for millennia, africans' lives have been greatly influenced by religious legislation. african religious law has its roots in the pre-colonial period, when native african civilizations maintained distinct religious rituals, laws, and beliefs. these rules served as a foundation for moral behaviour, social order, and government and were frequently deeply ingrained in the spiritual and cultural fabric of african societies. africa's religious laws have been greatly impacted by the expansion of christianity and islam throughout the continent. while christianity was brought to africa during the colonial era by european missionaries, islam originally reached the continent through trade routes in north africa and the horn of africa.10 both religions brought with them their own sets of religious laws, which have had a profound impact on african societies and legal systems. religious laws and formal legal systems derived from customs or laws from the colonial past coexist in many african nations. there may occasionally be disputes between religious and secular laws as a result of this dual legal system, especially where religious regulations run counter to fundamental rights or constitutional law.11 african governments have found it difficult to strike a balance between preserving democratic values and the rule of law and honouring the religious convictions of their people. with certain old traditions giving way to more contemporary interpretations of religious teachings, the role of religious law in africa has also changed throughout time. for instance, some african christian churches have eschewed conventional interpretations of religious law that may be restrictive or discriminatory in favour of more progressive stances on subjects like lgbtq rights and gender equality.12 protecting the rights of african religious minorities, who can experience prejudice or persecution as a result of their beliefs, has gained more attention in recent years. numerous african nations have taken action to include the right to freedom of religion and belief into their legal frameworks in response to international human rights groups' emphasis on the need of protecting this freedom across the continent. 3. juxtaposing religious law and customary law in africa, there are two separate legal systems: religious law and customary law. each has its own history, tenets, and customs. while there are certain commonalities amongst them, there are also notable distinctions with regard to the cultural context, application breadth, and authority sources. sacred books, scriptures, and religious teachings are the sources of authority for religious law. depending on whether religion is more common in a given area, christian canon law or islamic sharia law serves as the foundation for most religious legislation in africa. indigenous norms, traditions, and communal behaviours serve as the foundation for customary law. it is founded on unwritten laws that have been passed down through the ages and is frequently upheld by elders, traditional 6 david caron, ‘customary law: its place and meaning in contemporary african legal systems,’ journal of african law [2006] (9) (2) 74. 7 fa ajayi, ‘the interaction of english law with customary law in western nigeria,’ journal of african law [1960] (4) (1) 40. 8 ibid. 9 gordon woodman, ‘acquiescence in english law and the customary land law of ghana and nigeria,’ journal of african law [1971] (15) (1) 47. 10 paul okwuchukwu, religious education and societal development: the nigerian context (sciedu press, 2019) 146. 11 ibid. 12 liden ian, west african christianity: the religious impact (oxford up: african affairs, 2018). ibe: impact of religious law and customary law on societal development: the african narrative 28 | p a g e leaders, and the general agreement of the society.13 religious law mostly deals with family law and personal status issues, including inheritance, marriage, divorce, and religious rites. additionally, it enforces moral standards and behaviour in public that are based on religious teachings. in african communities, customary law regulates a broad spectrum of social, legal, and economic issues, such as property rights, marriage, inheritance, criminal justice, and land tenure. it has elements of both criminal and civil law.14 a collection of moral requirements, ethical standards, and religious precepts drawn from holy writings and religious teachings define religious law. it frequently mirrors the morals, convictions, and outlook of the religious group. customs that are unique to each ethnic group or community serve as the foundation for customary law.15 in order to preserve peace and order within the community, it places a strong focus on social cohesiveness, collective rights, and community responsibilities. religious authorities, such as christian ecclesiastical courts or islamic judges (qadis), interpret and apply religious principles to settle disputes and administer justice within the religious community. they are responsible for upholding religious law. traditional leaders, elders, and customary courts uphold customary law by using customary norms and procedures to settle disputes, decide cases, and uphold social order in the society. community-based penalties, reconciliation ceremonies, fines, and restitution are examples of customary sanctions.16 within the religious tradition, religious law may be reinterpreted, debated by scholars, and the subject of reform initiatives. however, modifications to religious law are frequently conservative and dictated by how religious authority see their doctrine and sacred scriptures. customary law is flexible and varies with the times to reflect changes in the social, political, and environmental spheres. it can still be culturally genuine and relevant to the community while incorporating outside influences, contemporary legal theories, and human rights values.17 while customary law and religious law are indigenous legal systems found throughout africa, they differ in terms of their sources of authority, applicability, principles, methods of enforcement, and capacity for change. both legal systems, which represent the cultural variety and legal plurality of the continent, are important in controlling behaviour, settling conflicts, and upholding social order in african countries.18 4. impact of religion and custom on the advancement of african societies contribution of religion and custom to the development of african societies african cultures have benefited greatly from the contributions of both religion and customary law, which have shaped their legal, social, and cultural environments in different ways. among their contributions are the following: preservation of cultural identity african cultural identity has been greatly enhanced by customary law, which upholds the norms, values, and practices that have been passed down through the years. the knowledge, customs, and lifestyles of the indigenous people have been preserved, adding to the complexity and depth of african history.19 social cohesion and community harmony religious law and customary law place equal emphasis on communal togetherness, social cohesiveness, and shared accountability. they offer structures for settling disagreements, mediating disputes, and encouraging peace in african communities, encouraging cohesion, collaboration, and respect among participants.20 governance and justice throughout african nations' history, customary law has functioned as the principal legal framework, covering a range of areas of daily life such as land tenure, marriage, inheritance, and dispute resolution. it has offered systems for law enforcement, governance, and order preservation, frequently via the power of customary courts, elders, and traditional leaders.21 13 charles maimela and mutsi mleya, a progressive reading of customary and religious norms associated with heteronormativity in south africa (southern african public law, unisa press, 2023). 14 fatima osman, ‘the consequences of the statutory regulation of customary law: an examination of the south african customary law of succession and marriage,’ potchefstroom electronic law journal [2019] (22) 3. 15 charles maimela and mutsi mleya, a progressive reading of customary and religious norms associated with heteronormativity in south africa (southern african public law, unisa press, 2023). 16 monique prinsloo, ‘cultural and religious diversity: are they effectively accommodated in the south african workplace?’ law, democracy & development [2007] (22) (1) 28. 17 abu rannat and sayyid muhammad, ‘the relationship between islamic and customary law in the sudan,’ journal of african law [1960] (4) (1) 13. 18 muna ndulo, legal pluralism, customary law and women (tms public 2018). 19 james read, ‘when is customary law relevant?’ journal of african law [2006] (7) (1) 59. 20 monique prinsloo, ‘cultural and religious diversity: are they effectively accommodated in the south african workplace?’ law, democracy & development [2007] (22) (1) 30. 21 abu rannat and sayyid muhammad, ‘the relationship between islamic and customary law in the sudan,’ journal of african law [1960] (4) (1) 14. african customary and religious law review (acarelar) 5 (2024) 29 | p a g e conflict resolution and mediation customary law provides adaptable, non-formal, and easily accessible means of settling disagreements and mediating conflicts among groups of people. conventional methods of resolving disputes, such restorative justice, arbitration, and reconciliation rituals, concentrate on healing relationships, mending hurts, and fostering peace; these approaches support societal stability and conflict management.22 legal pluralism and access to justice in many african nations, the acceptance of customary and religious law in addition to official state law has facilitated access to justice and legal diversity. alternative channels for conflict resolution are offered by customary courts, religious tribunals, and community-based justice systems. these channels are especially helpful for marginalized and rural communities who might find it difficult to access conventional legal institutions.23 values and ethics common values, ethical standards, and guiding principles that govern social relationships and individual behaviour are frequently found in both religious and customary law. they instil in people a feeling of moral responsibility and ethical behaviour by emphasizing values like honesty, integrity, respect for elders, and community service.24 cultural diplomacy and identity african ideals, beliefs, and traditions are represented to the world through religious and customary rituals, which operate as emblems of cultural identity and legacy.25 through their contributions to intercultural communication, cultural diplomacy, and the global promotion of african identity, they raise awareness of, respect for, and understanding of african customs and cultures. in general, african cultures have been significantly shaped by religious law and customary law in terms of development, governance, and cohesiveness. in modern african contexts, their contributions to social justice, conflict mediation, cultural preservation, and community empowerment highlight their lasting value and relevance. african societies may use their combined expertise and cultural history to address current issues and advance sustainable development by acknowledging and honouring the tenets and practices of both legal systems. negative impact of religion in africa in african communities, religion may have both beneficial and harmful effects. beneficial effects include fostering social networks, moral standards, and societal cohesiveness. the following are a few detrimental impacts of religion in africa: conflict and violence in certain regions of africa, religious tensions and conflicts have arisen, sparking sectarian turmoil, interfaith bloodshed, and even civil wars. conflicts have been fuelled by opposing religious ideas, political exploitation of religious identities, and rivalries for resources and power. these have led to fatalities, population relocation, and societal instability.26 extremism and radicalization in africa, radical organizations that advocate extreme ideas, intolerance, and acts of violence in the name of religion have proliferated. these groups include those connected to islamist movements and fundamentalist christian sects. in addition to engaging in acts of terrorism, sectarian bloodshed, and human rights violations that jeopardize peace, security, and societal cohesion, these groups also recruit and brainwash susceptible people.27 discrimination and exclusion in african communities, prejudice, marginalization, and exclusion of particular groups can occasionally be attributed to religious beliefs and practices. atheists, members of religious minorities, and those who practice religions other than those practiced by the majority may be subject to persecution, discrimination, and social stigma, which can restrict their access to opportunities and public life.28 22 olubayo oluduro, ‘customary arbitration in nigeria: development and prospects,’ african journal of international and comparative law [2011] (19) (2) 320. 23 muna ndulo, legal pluralism, customary law and women (tms public 2018). 24 liden ian, west african christianity: the religious impact (oxford up: african affairs, 2018). 25 james read, ‘when is customary law relevant?’ journal of african law [2006] (7) (1) 60. 26 ikenna odo, religious manipulation: a threat to societal development in nigeria (universitas negeri makassar, 2021) 56. 27 abu rannat and sayyid muhammad, ‘the relationship between islamic and customary law in the sudan,’ journal of african law [1960] (4) (1) 13. 28 monique prinsloo, ‘cultural and religious diversity: are they effectively accommodated in the south african workplace?’ law, democracy & development [2007] (22) (1) 33. ibe: impact of religious law and customary law on societal development: the african narrative 30 | p a g e gender inequality in africa, discrimination against women and girls as well as gender stereotypes and patriarchal standards are upheld by some religious traditions and interpretations.29 gender-based violence, inequality, and discrimination can be reinforced in both religious and secular contexts by this, which can materialize as uneven access to education, employment, property rights, and decision-making processes. human rights abuses religious organizations and their leaders have been linked to breaches of minorities' and vulnerable groups' rights as well as freedoms of expression and religion or belief. human rights safeguards, democratic principles, and individual liberty may be compromised by religious fanaticism, censorship, and moral policing.30 superstition and witchcraft accusations in many african civilizations, there is still a strong belief in superstition, witchcraft, and supernatural forces. this belief contributes to deadly behaviours including witch hunts, ritual killings, and charges of sorcery. due to false charges and beliefs, vulnerable people—such as children, the elderly, and those with disabilities—may be singled out, shunned, or the target of violence.31 resistance to progress in africa, religious dogmatism, traditionalism, and conservatism can impede the progression of science, society, and human development. in opposition to modernity, secularism, and progressive changes, there may be a barrier to addressing urgent concerns including public health programs, lgbtq+ rights, gender equality, and reproductive rights.32 corruption and exploitation religious organizations and leaders have been linked to financial mismanagement, sexual misbehaviour, and other unethical behaviour, as well as instances of corruption, exploitation, and abuse of authority. certain religious institutions place a higher priority on monetary wealth, prosperity gospel doctrine, and business endeavours than on social welfare, morality, and responsibility; this has led to a general mistrust and disenchantment with organized religion.33 for many africans, religion may provide solace, a sense of belonging, and moral direction, but it can also have detrimental effects that impede societal advancement, inflame conflict, encourage extremism, and perpetuate inequality. in order to guarantee that religion positively contributes to africa's development and well-being, addressing these issues calls for fostering tolerance, dialogue, and respect for variety in addition to preserving human rights, the rule of law, and secular government principles. challenges of customary law in africa even while customary law is firmly established in african countries and is essential to social cohesion, government, and conflict resolution, it nevertheless confronts a number of difficulties today. these difficulties are caused by a number of variables, such as urbanization, human rights concerns, legal diversity, and globalization. the following are some of the main obstacles that african customary law faces: erosion of traditional practices urbanization, modernization, and exposure to outside influences are all contributing factors to the gradual erosion of traditional conventions, norms, and practices.34 it's possible that younger generations would follow contemporary legal systems, western principles, or international cultural trends more than customary standards, which will gradually erode customary law's authority and applicability. conflict with formal legal systems in african nations, customary law frequently coexists alongside official state law, resulting in tensions, inconsistencies, and disputes between the two legal systems.35 confusion, uncertainty, and legal diversity can be brought about by differences in legal doctrines, practices, and enforcement strategies, making it difficult to harmonize and incorporate customary law into the official legal system.36 29 maria berna, ‘customary law and woman’s rights within the african system of human rights protection,’ logos universality mentality education novelty: law [2015] (4) (1) 43. 30 evadne grant, ‘human rights, cultural diversity and customary law in south africa,’ journal of african law [2006] (50) (1) 20. 31 liden ian, west african christianity: the religious impact (oxford up: african affairs, 2018). 32 maria berna, ‘customary law and woman’s rights within the african system of human rights protection,’ logos universality mentality education novelty: law [2015] (4) (1) 43. 33 ikenna odo, religious manipulation: a threat to societal development in nigeria (universitas negeri makassar, 2021) 53. 34 liden ian, west african christianity: the religious impact (oxford up: african affairs, 2018). 35 joanna quinn, ‘the impact of internal conflict on customary institutions and law: the case of uganda,’ journal of african law [2015] (59) (2) 223. 36 fatima osman, ‘the consequences of the statutory regulation of customary law: an examination of the south african customary law of succession and marriage,’ potchefstroom electronic law journal [2019] (22) 20. african customary and religious law review (acarelar) 5 (2024) 31 | p a g e gender inequality and discrimination numerous traditional customs have a patriarchal bent, favouring males over women and sustaining discrimination and gender inequality. in customary legal systems, women and girls may have less rights, less access to justice, and less ability to participate in decision-making processes.37 this undermines attempts to advance gender equality, women's empowerment, and human rights. lack of formal recognition and regulation customary law is not legally recognized or governed by the state in several african nations, which causes ambiguity, inconsistency, and arbitrariness in its implementation.38 the absence of institutional support, educated staff, and legal safeguards in customary courts and traditional judicial systems can give rise to issues regarding fairness, accountability, and justice accessibility. human rights violations international human rights norms may be in contradiction with customary law practices, especially when it comes to matters like gender equality, freedom of speech, minority rights, and the protection of marginalized groups. human rights education and legislative changes are necessary to combat practices that violate core human rights principles, such as forced marriage, female genital mutilation, and child marriage.39 land tenure and resource management in many african communities, customary law regulates communal ownership, land tenure, and the use of natural resources. however, the customary land tenure systems have been stretched by fast urbanization, population increase, and land disputes, resulting in environmental degradation, land grabbing, and violence.40 sustainable development and effective resource management depend on striking a balance between traditional land rights and contemporary land governance frameworks. legal pluralism and access to justice coexisting legal systems, such as formal state law, religion law, and customary law, can lead to disparities and complexity in the administration of justice. rural and underprivileged communities may encounter obstacles that hinder their capacity to engage in the legal system and seek redress, such as lack of legal information, cultural and linguistic limitations, and physical remoteness.41 a holistic strategy that respects human rights, gender equality, and the rule of law while also acknowledging the significance of customary law in african countries is needed to address these issues. to guarantee that customary law favourably impacts social justice, peace, and development in africa, initiatives to reform customary law, advance legal education, empower disadvantaged people, and bolster the ability of customary judicial systems should be undertaken. 5. modern adaptations and integration of religious and customary law in african societies african cultures are rapidly adapting and merging religion and customary law with modern legal systems in response to current issues and shifting societal dynamics. these modifications seek to achieve a balance between safeguarding communal values, protecting cultural heritage, and advancing justice, human rights, and the rule of law. the following are some examples of how african communities have integrated and modified religion and customary law in the contemporary era: legal pluralism numerous african nations acknowledge the presence of various legal systems, such as official state law, customary law, and religious law, as legal pluralism. legal pluralism fosters diversity, adaptability, and access to justice by enabling people and communities to select the legal framework that most closely matches their goals and preferences.42 codification and formalization a number of african nations have made attempts to formalize and codify customary law, utilizing institutional structures, legislative changes, and traditional rules and norms to record their practices.43 within customary judicial systems, codification improves legal certainty and predictability, standardizes legal processes, and clarifies customary legal ideas. 37 maria berna, ‘customary law and woman’s rights within the african system of human rights protection,’ logos universality mentality education novelty: law [2015] (4) (1) 46. 38 francis snyder, ‘rethinking african customary law,’ the modern law review [1988] (51) (2) 254. 39 evadne grant, ‘human rights, cultural diversity and customary law in south africa,’ journal of african law [2006] (50) (1) 30. 40 bonny ibhawoh, ‘historical globalization and colonial legal culture: african assessors, customary law, and criminal justice in british africa,’ journal of global history [2009] (4) (3) 430. 41 muna ndulo, legal pluralism, customary law and women (tms public 2018). 42 muna ndulo, legal pluralism, customary law and women (tms public 2018). 43 francis snyder, ‘rethinking african customary law,’ the modern law review [1988] (51) (2) 258. ibe: impact of religious law and customary law on societal development: the african narrative 32 | p a g e hybrid legal systems in many african nations, hybrid legal systems have developed that combine aspects of religious law, customary law, and contemporary legal ideas. these hybrid systems aim to provide coherence and compatibility across many legal traditions by balancing traditional norms with human rights standards, constitutional rights, and legality principles.44 constitutional recognition customary law and religious law are recognized as sources of law by some african constitutions, which gives them official status and protection within the legal system. the rights of individuals to follow customs, practice their religion, and seek justice through religious or customary organizations are upheld by constitutional provisions. legal reforms some african nations have implemented legal reforms to bring customary law into line with contemporary legal theories, human rights standards, and international legal norms.45 within customary judicial systems, these reforms aim to improve gender equality, protect vulnerable groups, and rectify discriminatory behaviours.46 alternative dispute resolution african communities are increasingly turning to alternative conflict resolution techniques, such as mediation, arbitration, and traditional judicial processes, to settle disputes and carry out justice.47 outside of official judicial systems, these processes offer accessible, informal, and culturally appropriate channels for fostering reconciliation and settling disputes. community participation and empowerment to ensure that religion and customary law are effectively integrated in african countries, efforts must be made to fortify community involvement and empower local institutions, such as traditional leaders, customary courts, and religious groups. community-based projects build social cohesiveness, local ownership, and grassroots governance while enhancing legal institutions' credibility.48 legal education and awareness enhancing knowledge, respect, and adherence to religious and customary legal standards requires legal education and awareness-raising initiatives on rights, laws, and legal procedures. education promotes access to justice and legal pluralism by enabling people to negotiate legal systems, stand up for their rights, and make educated decisions.49 african societies have been attempting to integrate old legal norms with modern legal concepts, human rights standards, and democratic ideals through the modern adaptations and integration of religion and customary law. these initiatives support the rule of law, human rights, and social justice in africa by advancing legal plurality, access to justice, and cultural diversity. 6. conclusion african political systems, economy, and civilizations have all been influenced by religion and customs. religious doctrine and practices have a significant impact on traditional government. african customary law systems are a reflection of the great cultural variety and legacy of the continent. african nations may advance justice, equality, and human rights by accepting and modifying traditional law to address modern issues. while religious and customary law in africa is similar, they are not the same in terms of their authority sources, application, principles, methods of enforcement, and flexibility. both are important for controlling behaviour, settling conflicts, and upholding social order. they have influenced african societies' growth, governance, and cohesiveness while also advancing social justice, resolving disputes, preserving culture, and empowering local communities. recognizing and respecting both legal systems can address contemporary challenges and promote sustainable development. africa is negatively impacted by religion in terms of social advancement, radicalism, violence, and prejudice. to overcome these obstacles, we need to preserve secular government ideals, human rights, and the rule of law while also encouraging tolerance and discourse. positive changes can also be made to customary law via enhancing legal education, empowering underprivileged populations, and fortifying customary justice institutions. african cultures have been modernizing the integration and adaptation of religion and customary law in an effort to align traditional legal norms with human rights principles, contemporary legal theory, and democratic aspirations. these projects aim to promote legal pluralism, access to justice, and cultural variety in addition to upholding the rule of law, human rights, and social justice throughout africa. 44 evadne grant, ‘human rights, cultural diversity and customary law in south africa,’ journal of african law [2006] (50) (1) 20. 45 gordon woodman, ‘acquiescence in english law and the customary land law of ghana and nigeria,’ journal of african law [1971] (15) (1) 45. 46 maria berna, ‘customary law and woman’s rights within the african system of human rights protection,’ logos universality mentality education novelty: law [2015] (4) (1) 54. 47 olubayo oluduro, ‘customary arbitration in nigeria: development and prospects,’ african journal of international and comparative law [2011] (19) (2) 320. 48 liden ian, west african christianity: the religious impact (oxford up: african affairs, 2018). 49 muna ndulo, legal pluralism, customary law and women (tms public 2018). mgbeokwere: discriminatory cultural practices of property rights of african women despite legal framework: a call for more proactive measures 23 | p a g e discriminatory cultural practices of property rights of african women despite legal framework: a call for more proactive measures* abstract african women have been subjected to myriad cultural discriminatory practices despite national and international laws guaranteeing their rights to own property. the aged long patriarchy and primogeniture practice which prefers male dominance is practiced in most customs in africa. the 21st century ushered in a new way of thinking that questions the continuous observance and practice of these cultures. the superior courts in nigeria and kenya have relied on the constitutional provisions and other enabling statute to proscribe some of these discriminatory cultural practices against women. the study aims at enabling women to change the narrative with regards to discriminatory practices in other to seek gender equality. it employs the doctrinal method where literatures related to the subject matter were explored. it is found out that the decisions of the supreme court are yet to be effective because in practice, women remain disadvantaged and discriminated. the paper among others, recommend for the involvement and networking of women rights activist and non governmental organization to bring about institutional change. it concludes that the collaboration of all and sundry will go a long way to make the law and judicial prouncement in this regard practically effective. keywords: primogeniture; patriarchy; african women; human rights; cultural practices 1. introduction culture has been said to be the way of life of a people. this belief is resonated in africa with its myriad cultural practices. some of these practices are obnoxious and discriminatory to women especially in africa. this stems from the cultural belief of male superiority primogenitor rule and the resistance to change that is firmly entrenched in patriarchal ideologies handed down through socialization as an undocumented memory of the people. customary practices place all sorts of rules on the african women that limit their freedom. the female child suffers discrimination due to the male preference syndrome in some customs in africa. this cultural preference aided in the discrimination of the female child1. this study focuses on discriminatory cultural practices on african women in some part of nigeria and kenya with respect to their rights to own or inherit immovable property. customs, tradition, religion and law are the instruments and tools used to subjugate the female gender. these obnoxious laws were made to protect the male gender and made the female gender a chattel to be inherited as a property. for example, one earlier case from the federal supreme court in nigeria echoed and restated the customary position when it held that women could not inherit as they themselves are part of the inheritance.2 this custom treats women as chattels to be passed on to the remainder of his family after the death of a spouse.3 since customary law sees the female as a property, she does not have any inheritance rights in her place of birth or marriage. in kenyan communities, women ordinarily do not own land or movable property. at best, their rights are hinged on their relationship to men either as their husbands, fathers or brothers who own and control land, while women are relegated to the right of use only.4 although kenya now has comprehensive progressive laws5 that should translate to benefits for women in relation to their land and property rights, in practical terms women are still disadvantaged in terms of access to and control of economic structures and resources.6 the succession * by chinenye joy mgbeokwere, llb, llm, phd. lecturer, nile university of nigeria airport bypass jabi abuja. vice chairperson fida gwagwalada branch and nba women forum abuja nigeria; chairman, nba electoral committee 2020 gwagwalada branch. abuja. e-mail c.j.mgbeokwere@nileuniversity.edu.ng; c.j.mgbeokwere@gmail.com; tel 08063521649. 1 suberu v sunmonu (1957) 2 fsc 31, 2 in suberu v sunmonu (1957) supra jibowu fj said: ‘it is a well settled rule of native law and custom of the yoruba people that a wife could not inherit her husband’s property since she herself is, like a chattel, to be inherited by a relative of her husband.’ 3 other examples of customary law prevailing in cases before the federal supreme court that raised issues of discrimination include nezianya v okagbue (1963) 1 anlr 352 and osilaja v osilaja (1972) 10 sc 126 where women were prohibited from inheriting the property on the basis of their sex under customary law. in nezianya v okagbue the federal supreme court recognised limited rights of women to inherit, such as providing a life interest in the property dependent on their good behaviour. 4double standards: women’s property rights violations in kenya. available at https://www.hrw.org/report/2003/03/04/double-standards/womens-property-rights-violations-kenya. accessed on 20th may 2022. 5 the kenya constitution 2010; the marriage act 2014; the matrimonial property act; 2013; the land registration act; 2012 and law of succession act 1981 among others.. 6j n-mewanu and n abdi ‘securing women’s property rights in kenya’. available at https://www.hrw.org/news/2020/03/07/securing-womens-property-rights-kenya. accessed on 20th may 2022 mailto:c.j.mgbeokwere@nileuniversity.edu.ng mailto:c.j.mgbeokwere@gmail.com https://www.hrw.org/report/2003/03/04/double-standards/womens-property-rights-violations-kenya https://www.hrw.org/news/2020/03/07/securing-womens-property-rights-kenya african customary and religious law review (acarelar) 3 (2022) 24 | p a g e law in kenya bars a widow’s husband’s relatives from arbitrarily appropriating her inheritance. but the laws are rarely enforced and women that litigate on this issue are stigmatized especially in rural areas.7 the igbo people of the south eastern part of nigeria practice a patrilineal system where the succession and inheritance rights pass through the male offspring.8 they share a common traditional belief in patriarchy and primogeniture which usually promote gender inequality and the subjugation of women, in both dignity and property rights.9 the patrilineal nature of the igbo people subsumed in the prevalent customary law ensures that no female could be the head of a household or lineage or a sub-lineage.10 women in igbo land are also denied the right to inherit the intestate immovable property of a deceased husband or father under customary law, to the exclusion of the males, except to the extent that they can expect to be maintained by their husbands’ heirs.11 many women experienced domestic violence, abandonment, denial of their rights and eviction from their homes. cheluchi argued that patriarchal attitudes prevailed and violence against women in their homes was often considered private matters to be settled within the family. these attitudes she commented, prevented women from seeking redress from law enforcement for matters such as rape, child marriage, harmful traditional practices and other kinds of violence.12 these cultural practices have been reverse by the highest courts in nigeria and kenya through case law. the supreme courts have upheld the fundamental human rights provisions in nigerian landmark cases of ukeje v ukeje13 and anakwe v nweke.14 and the kenya reformatory cases of z.w.n. v. p.n.n15 and .j.a.o. v n.a.16 as laudable, far-reaching and commendable as the decisions of the courts are in nigeria and kenya this reform is yet to be acknowledged by most of the kings, traditional rulers, family heads and elders who are the custodian of the history, tradition and custom of the people.17 this work seeks to find out the disconnect between the law laid down and the law in practice and then proffer a workable solution. 2. conceptual framework primogeniture rule primogeniture is a system of inheritance in which a person’s property passes to their firstborn legitimate child upon their death. the term comes from the latin ‘primo’ which means first, and ‘genitura’ which relates to a rights person’s birth. historically, primogeniture favored male heirs, also called male-preference primogeniture. under this regime, the eldest living son would inherit the entirety of his parent’s estate.18 patriarchy patriarchy is an institutionalized social system in which men dominate over others; it is an analytical concept referring to a system of political, social, and economic relations and institutions structured around the gender 7fida kenya, ‘kenyan laws and harmful customs curtail women’s equal enjoyment of icescr rights. available at https://www2.ohchr.org/english/bodies/cescr/docs/info-ngos/fidakenya41.pdf. accessed on 10th mat 2022 8the south east of nigeria is one of the six geopolitical zones in the country. the region consists of the following states; abia, anambra, ebonyi, enugu and imo state. south east geo-political zone is 99.9% of population of igbo people. 9 a ojilere, r onuoha. .,and t. igwe, ‘new directions for securing african women’s right to property under customary law: the case of nigeria.’ asian women [2019] (35) (1); 95-119. 10 u nduka, and n. g. ozioma, ‘chinua achebe’s things fall apart and the role of women in igbo traditional religious culture.’ open journal of social sciences; [2019] (7)(12) 273. 11 a ojilere, ‘expanding women’s right to inherit immovable property in igbo land beyond the limits of ukeje v ukeje’ 2021. available at https://www.researchgate.net/publication/349732305_expanding_women's_right_to_inherit_immovable_property_in_igbo land_beyond_the_limits_of_ukeje_v_ukeje. accessed on 30th may 2022. 12 c onyemelukwe, ‘legislating on violence against women: a critical analysis of nigeria's recent violence against persons (prohibition) act, 2015’ 5 depaul j. women, gender & l. (2016) available at: <https://via.library.depaul.edu/jwgl/vol5/iss2/3>. accessed on 1st may 2022. 13 (2014) 11 nwlr (part 1418) 384; (2014) 234 lrcn 1 14 onybor anekwe, 2. chinweze v. mrs. maria nweke (2014) 9 nwlr (pt 1412) 393-422; nzekwu v. nzekwe (1989) 3 scnj page 167; (1989)2 nwlr (pt. 104) 373. 15 [2012] eklr 16 [2013] eklr24 17see supreme court’s decision on female inheritance divides igbo. available at https://www.vanguardngr.com/2020/08/supreme-courts-decision-on-female-inheritance-divides-igbo/.accused on 27th may 2022. the judgment has evoked mixed reactions from ndigbo, particularly traditional rulers who are the custodian of the tradition and culture, as well as church leaders. see also igbo culture, supreme court on head-on collision. available at https://www.vanguardngr.com/2020/08/supreme-courts-decision-on-female-inheritance-divides-igbo/. accessed on 27th april 2022. 18 legal information institute primogeniture available at https://www.law.cornell.edu/wex/primogeniture#:~:text. accessed on 27th may 2022. https://www.law.cornell.edu/wex/inheritance https://www.law.cornell.edu/wex/legitimate https://www.law.cornell.edu/wex/inheritance https://www.law.cornell.edu/wex/estate https://www2.ohchr.org/english/bodies/cescr/docs/info-ngos/fidakenya41.pdf https://en.wikipedia.org/wiki/geopolitical_zones https://en.wikipedia.org/wiki/igbo_people https://www.researchgate.net/publication/349732305_expanding_women's_right_to_inherit_immovable_property_in_igboland_beyond_the_limits_of_ukeje_v_ukeje https://www.researchgate.net/publication/349732305_expanding_women's_right_to_inherit_immovable_property_in_igboland_beyond_the_limits_of_ukeje_v_ukeje https://via.library.depaul.edu/jwgl/vol5/iss2/3 https://www.vanguardngr.com/2020/08/supreme-courts-decision-on-female-inheritance-divides-igbo/ https://www.vanguardngr.com/2020/08/supreme-courts-decision-on-female-inheritance-divides-igbo/ https://www.law.cornell.edu/wex/primogeniture#:~:text mgbeokwere: discriminatory cultural practices of property rights of african women despite legal framework: a call for more proactive measures 25 | p a g e inequality of socially defined men and women.19 within patriarchal relations, women are collectively excluded from full participation in political and economic life. in a patriarchy, authority is exercised by the male head of the family and inheritance occurs through the male children. the role of patriarchy deprived women from advancing educationally.20 human rights human rights are commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being. the concept of human rights is based on the belief that every human being is entitled to enjoy her/his rights without discrimination. article 1 of the un charter declared that all human beings are born free and equal in dignity and rights. the entry into force of the un charter on 24 october 1945 marked the formal recognition of human rights as a universal principle, and compliance with human rights was mentioned in the preamble and in articles 55 and 56 as a principle to be upheld by all states.21 in 1948, it was followed by the adoption of the udhr, and in 1966 by the icescr and the iccpr and its first optional protocol.22 marriage the major means through which individuals are differentiated and placed into a system of inheritance is through the form of marriage that they choose to adopt, be it a statutory marriage, or under a customary or sharia system.23 it is through the institution of marriage, the inheriting child whether male or female effectively step into the shoes of the deceased whose possessions, rights, and duties all transferred to the heir. in order to have a valid statutory marriage under the marriage act, it is necessary to both complete a formal registration process and to get married within a licensed facility. a valid customary marriage in nigeria is by payment of bride price, dowry and the formal handing over of the bride to the groom.24 marriage under customary law is largely polygamous. 3. legal framework there are lots of legal instrument that have been enacted locally and internationally to protect the interest of the women and to prohibit discriminatory cultural practices against them. some of the national and international legal frameworks are discussed below: constitutional framework the constitution of the federal republic of nigeria25 and the republic of kenya entrenched some reformative provision with regards to women rights and gender equality. the constitution in both countries are supreme and has binding force on all authorities and persons in nigeria26 and kenya.27 it prevails over any other law that is inconsistent with it.28 article 2 (4) of kenya constitution 2010 provides that: any law, including customary law that is inconsistent with this constitution is void to the extent of the inconsistency, and any act or omission in contravention of this constitution is invalid. customary law and the english law are subject to the constitution of the federal republic of nigeria 1999,29.this is also the same with kenya,30 the constitution is supreme law and prevails over any inconsistent laws. the fundamental rights are outlined in chapter iv of the nigeria constitution from sections 33 to 44. the chapter iv rights include the rights to own property, dignity of human persons, and 19c.j. nash, in international encyclopedia of human geography, 2009. available at https://www.sciencedirect.com/topics/social-sciences/patriarchy. accessed on 10th april 2022. 20 t.j mudau , and o.s obadire, the role of patriarchy in family settings and its implications to girls and women in south africa. journal of human ecology [2017] (58)(2) 67-72 21 nigeria and kenya are members of the united nations and signatory to the declaration 22universal declaration of human rights. available at https://www.un.org/en/about-us/universal-declaration-of-humanrights. accessed on 30th may, 2022. 23v emery, ‘women’s inheritance rights in nigeria: transformative practices. 1 unaids, 2004 report on the global aids epidemic. available at http://www.nigerianlawguru.com/articles/customary%20law%20and%20procedure/women%20inheritance%20rig hts%20in%20nigeria,transformative%20practices.pdf. accessed on 27th may 2022. 24 h boparai ‘the customary and statutory law of marriage in nigeria’. [1982] (46) (3) the rabel journal of comparative and international private law. 530-557 25 constitution of federal republic of nigeria 1999 as amended in 2011 the current constitution which is the 1999 constitution although amended in 2011 was established by the military administration of general abdulsalami abubakar. the constitution has been criticized for not being authochonous because it was not enacted by elected representatives of nigeria but by the military administrators 26 section 1(1) of the 1999 constitution as amended in 2011 27 article 2(1) of kenya constitution 28 section 1(3) of nigeria constitution and article 2(4) of kenya constitution 29 section 1(3) 30 article 2(4) of kenya constitution https://www.sciencedirect.com/referencework/9780080449104/international-encyclopedia-of-human-geography https://www.sciencedirect.com/topics/social-sciences/patriarchy https://www.un.org/en/about-us/universal-declaration-of-human-rights https://www.un.org/en/about-us/universal-declaration-of-human-rights http://www.nigerianlawguru.com/articles/customary%20law%20and%20procedure/women%20inheritance%20rights%20in%20nigeria,transformative%20practices.pdf http://www.nigerianlawguru.com/articles/customary%20law%20and%20procedure/women%20inheritance%20rights%20in%20nigeria,transformative%20practices.pdf african customary and religious law review (acarelar) 3 (2022) 26 | p a g e provisions outlawing discrimination on the basis of sex. also in kenya, chapter 4 provides for bill of rights. these rights and freedom are encapsulated in articles 26 to 51 of the constitution. it is interesting to note in this discourse that section 42 (1) of the nigerian constitution guarantees the right to freedom from discrimination on the basis of gender or circumstance of birth, and state thus: section 43 thereof guarantees the right of every nigerian citizen to acquire and own immovable property anywhere in nigeria. it is also a fundamental objectives and directive principles of state policy in the nigerian constitution that the state ‘shall protect, preserve and promote the nigerian cultures which enhance human dignity and are consistent with the fundamental objectives.’31 the kenya constitution of 2010 in article 27 (1-3) provides for equality and freedom from discrimination. according to article 28 women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. it further provides in article 28 that every person has inherent dignity and the right to have that dignity respected and protected. article 29 also provides for freedom and security of the person. article 29 (c) provides that no one should be subjected to any form of violence from either public or private sources; article 40 (1) provides that, ‘every person has a right, either individually or in association with, to acquire and own property (a) of any description and (b) in any part of kenya’. article 40 (2) prohibits parliament from enacting any law that allows the government or any individual to (a) …’deprive a person of property of any description or of any interest in, or right over, any property of any description or (b) …to limit or in any way restrict the enjoyment of any right under this article on the basis of any of the grounds specified or contemplated in article 27(4).’ article 45(3) of the constitution provides that parties to a marriage will be entitled to equal rights at the time of marriage, during the marriage and at its dissolution. article 60 (1) (f) eliminates gender discrimination in relation to land and property and gives everyone, including women, the right to inheritance and unbiased access to land. international framework these are laws made at the international fora that are applicable in nigeria and kenya by reason of its membership, ratification and domestication of the law in these countries. some of these laws are: african charter on human and people rights 2004 nigeria and kenya are signatories to the african charter on human and people rights. this act contains diverse provisions, protecting women against discrimination. for instance, the general non discrimination clause states that: every individual shall be entitled to the enjoyment of his rights and freedom recognized and guaranteed in the charter without distinction of any kind such as ... sex’ article 3 further concretised women’s right in africa by stating that: (1) every individual shall be equal before the law. (2) every individual shall be entitled to the equal protection of the law’ the right of women in africa were further firmly entrenched by the provision of section 18 (3) of the africa charter which stated in every explicit term that ‘the state, shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the women as stipulated in international declaration and convention’. convention on the elimination of all forms of discrimination against women (1981) (cedaw) article 2 of the convention on the elimination of all forms of discrimination against women with protocol 2000 also enjoins state parties to condemn discrimination against women in all its forms, agree to pursue all appropriate means and without delay formulate a policy eliminating discrimination against women and to this end undertake: (f) to take all appropriate measures including legislation to modify or abolish existing laws, regulation, custom and practices which constitute discrimination against women. article 16 (vi) provides for respective rights in matters of property and succession. article 5 enjoins state parties to take all appropriate measures to modify the social and cultural pattern of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority and the superiority of either of the sexes or on stereotyped roles for men and women. universal declaration of human rights 1948 article 1 of the universal declaration of human rights has declared that ‘all human beings are born free and equal in dignity and rights’. under article 7, it states thus: ‘‘all are equal before the law and are entitled without any discrimination to equal protection of the law. all are entitled to equal protection against any discrimination in violation of this declaration and against any incitement to such discrimination’’ 31 section 21 of the 1999 constitution mgbeokwere: discriminatory cultural practices of property rights of african women despite legal framework: a call for more proactive measures 27 | p a g e 4. appraising the discriminatory practices through the cases this paper has categorised the various judgments of the superior court of records in nigeria and kenya with regards to customary discriminatory practices against african women in nigeria and kenya into two; the conservative approach and the liberal approach. conservative approach32 in time past, the supreme court of nigeria and kenya endorsed the traditional practice of inequity and discrimination against the women by upholding the customary law position on inheritance and property rights. for instance, in the nigerian case of suberu v sunmonu,33 jibowu f j said: ‘it is a well settled rule of native law and custom of the yoruba people that a wife could not inherit her husband’s property since she herself is, like a chattel, to be inherited by a relative of her husband.’also, in nezianya v. okagbue34 the court unequivocally stated thus: by the customary law predominant in igboland, a widow has no right to succeed to personal or real estate of her deceased husband. of course, it would be absolute nonsense in the circumstances for a widow who is herself regarded as property to turn round to claim the property of her late husband. in such a case the only right available to her will be to be accommodated by the person who inherits the husband's estate until she remarries or becomes financially independent or dies. the supreme court held in arase v. arase35 that the custom was not repugnant to natural justice, equity and good conscience, and therefore, valid and binding on those subject to it. also, in atuanya v onyejekwu 36 egbuna j. held with regards to ibo native law and custom that on the death of udemba his land which were not sold in his life time cannot rest in the second defendant as she can never be the head of the family, she being a woman. in ejiamike v ejiamike37 the court held that a widow had no right to the late husband’s estate. also in kenya, this discriminatory property practice against women was upheld by the courts in kenya. in essa v essa38 the court held that the estrange wife lack equal share of the property. also, in peter mburu echaria v. priscilla njeri echaria,39 the plaintiff instituted an action for divorce and ownership of matrimonial property. the court of appeal reversing the first court of first instance decision of equal proportion, held that husband and the wife shares of the property based on their monetary contribution towards its purchase. liberal approach40 the above approach discussed earlier was the unenviable position, women in nigeria and kenya found themselves despite constitutional and statutory framework. the highest courts in nigeria and kenya proactively reversed this ugly trend and upheld the provisions of the constitution. the reformative nigerian case of mojekwu v mojekwu41 came up for determination by the nigeria court of appeal. niki tobi j.c.a (as he then was) in this case, invalidated the nnewi ‘oli-ekpe’ customary law which disinherited a deceased man’s biological daughter from inheriting her father’s land in preference of her uncle as repugnant to natural justice equity and good conscience. the judge in his leading illuminating judgment, observed thus: we need not travel all the way to beijing to know that some of our customs, including nnewi ‘oli-ekpe’ custom … are not consistent with our civilized world in which we all live today,… accordingly, for a custom or customary law to discriminate against a particular sex is to say the least an affront on the almighty god himself. this decision by the court of appeal strengthened by the supreme court landmark decisions in ukeje v ukeje42 and anakwe v nweke.43 in ukeje v ukeje the respondent as plaintiff sued the defendant appellant; she contended that she was entitled to the estate of her late father. the appellant as defendant asserted that under igbo customary 32an approach which seeks to promote and preserve traditional social institutions. adherents of conservatism often oppose modernism and seek a return to traditional values. 33 (1957) 2 fsc 31 34 [1963] all nlr 358 sc. 35 (1981) n.s.c.c 101,114. 36 (1972) nmlr 37 (1972) ecslr 38 civil appeal no. 101 of 1995 39 [2007] eklr. 40 a concept that believes in or allowing a lot of personal freedom, and believing that society should change gradually so that money, power and property will be shared more fairly. it generally supports individual right and equality and opposes norms, beliefs that are against social freedom. 41 (2005) 5 nnlr (pt 657) 402 42 (2014) 11 nwlr (part 1418) 384; (2014) 234 lrcn 1. 43 (2014) 9 nwlr (pt 1412) 393-422 african customary and religious law review (acarelar) 3 (2022) 28 | p a g e law, daughters, and women generally, are not entitled to inherit immovable property. the trial court found for the plaintiff/respondent. dissatisfied, the defendant as appellant further appealed to the supreme court. justice olabode rhodes-vivour, jsc, who gave the lead judgment voided the ibo customary law which disentitled a daughter from inheriting immovable property of a deceased father since such custom violated the fundamental rights to freedom from discrimination on the basis of sex or circumstance of birth guaranteed respectively by sections 42(1) (a) and (2) of the 1999 constitution.44 this also contradicts section 43 of the constitution which guarantees the right to acquire and own immovable property anywhere in nigeria. also, in another celebrated case of onybor anekwe, v. mrs. maria nweke,45 the issue before the supreme court was whether a widow could inherit the family home after her husband’s death. if she was not entitled to inherit, then the property would go to the eldest living male in the family; clara bata ogunbiyi, j .s.c46 delivering the lead judgment held:47 i hasten to add at this point that the custom and practices of awka people upon which the appellants have relied for their counter claim is hereby out rightly condemned in very strong terms. in other words, a custom of this nature in the 21st century societal setting will only tend to depict the absence of the realities of human civilization. it is punitive, uncivilized and only intended to protect the selfish perpetration of male dominance which is aimed at suppressing the right of the womenfolk in the given society. she also condemned the male appellants and their counsel for their actions in arguing that the widow should be disinherited. nwali sylvester ngwuta jsc agreed with the condemnation of the custom and referred to it being a challenge to god’s will and the height of man’s inhumanity to woman, 48 in a similar circumstance as the case under consideration, the court in nzekwu v. nzekwe49 held amongst others and ruled ‘that the plaintiff had the right of possession of her late husband's property and no member of her husband's family has the right to dispose of it or otherwise whilst one is still alive.’ in kenya the landmark decision in z.w.n. v. p.n.n50 began a reform agenda in the property rights of women in kenya. in this case, where the husband and wife separated on the ground that the husband had left the matrimonial home to live with a mistress, the wife claimed for an equal (half) share of the matrimonial property. the court upheld the need to accord equal treatment to women following the principles of international law, as incorporated into law under article 2 (5), and considering also the provision of article 45 (3). in j.a.o. v n. a.51 the plaintiff filed for judicial separation. the court upon hearing the matter granted orders for judicial separation. the plaintiff in this case, contended that property bought in the name of the defendant and during the sustenance of the marriage be shared equally. the court held that the plaintiff was entitled to half share in all the properties which were found to be matrimonial property. 5. conclusion and recommendations various laws at the national and international fore have been enacted to invalidate discriminatory practices against women and promote gender equality in nigeria and kenya. the judiciary has been proactive in proscribing discriminatory cultural practices against women in line with the constitutional provisions and other enabling statute in these countries. however, these laws and judgments are yet to be effective especially on the local chiefs and rural dwellers who in most cases observe such discriminatory cultural laws. gender rights courses should be taught as a compulsory course in schools in other to correct societal perception. african women are also enjoined to rise to the occasion to champion rights-based issues and sponsor programmes that enhance women rights. the collaboration of all and sundry will ensure that the law and decisions of the courts are workable and not a mere academic exercise that conflicts with the law and tradition. one of the challenges of the enforcement and implementation of the supreme court judgment is the reluctance of the people to accept the decision of the court that reverses the age long tradition handed supposedly over to them by their fore fathers. ajabor, ifanyi and ovreme commented that in south africa the court has proscribed the primogeniture rule as it negates the equality of gender.52 it is on this basis that this article suggested some recommendations which are necessary for 44 this was a unanimous decision as all the justices concur with the justice that delivered the lead judgment. 45 supra 46the other judges (ibrahim tanko mohammad, muhammad saifullahi muntaka-coomassie, nwali sylvester ngwuta and olukayode ariwoola (jsc) wrote brief concurring judgments and all of them expressly agreed with ogunbiyi jsc. justice ogunbiyi was the only woman on the panel. at the time of her appointment ogunbiyi jsc was the first woman to be appointed from north eastern nigeria, and the fourth woman appointed to the supreme court overall. 47 anekwe v nweke, supra n 3, at 15. 48 supra n 3, at 18. 49 (1989) 3 scnj page 167; (1989)2 nwlr (pt. 104) 373 50 44.[2012] eklr 51 46 [2013] eklr28 52 i ajabor,and o a ovreme, ‘the female right of succession under the igbo customary law: a critique’ international journal of innovative legal and political studies. [2019] (7) (1); 59-67 mgbeokwere: discriminatory cultural practices of property rights of african women despite legal framework: a call for more proactive measures 29 | p a g e institutionalizing women’s right to equality, dignity and property inheritance rights. some of these recommendations include: incorporating gender rights in the school curriculum in a bid to catch them young and instill in them the right societal virtue, the introduction of gender right courses in the primary and secondary schools and incorporating it as a core course in the tertiary institution will go a long way to correct the societal perception of gender equality. education of the girl child from primary, secondary and tertiary level is sacrosanct. african women are also enjoined to rise to the occasion to champion rights based issues and sponsor programmes that enhance women rights. enlightenment programme as the saying goes charity begins at home, primary reform must occur at the local level especially with the traditional rulers who are seen as the custodian of their tradition. in africa many of the customary disputes do not reach the customary court system, but are resolved through local mechanisms such as traditional rulers, family heads and village counsels.53 the heads of the local institution and counsels through which majority of these land disputes are resolved who apply the discriminatory customary law of inheritance against women, should be informed about the reform the decisions of the supreme court have brought in their tradition. this will make them to reform their mind set towards accepting the change, thus become change agent in applying the decisions, propagating and enforcing the decisions of the court in the settlement of the dispute in the community; this will make the judgment of the supreme court effective especially when the custodians of the same customary laws and traditional institutions which used to deny women of property rights now become the ones to educate them on their new rights.54 disseminating supreme court decision through electronic, social media and other platforms the role of social media, electronic and the print media are enormous in disseminating information in the 21 st century. the social media platforms like facebook, whatsapp, twitter, instagram, blogs are one of the various ways information are disseminated. the community of users of these platforms are growing astronomically as one only need to get a sim card, smart phone with a data to access information on the internet. on the spot information are usually posted through any of these platforms. indeed, one can access most the decisions of the supreme courts on-line and be aware of the reform in the customary inheritance rights of women in africa. human rights activist, nigerian bar association (nba) nba women forum, kenya bar, international federation of women lawyers (fida), traditional leaders, concerned citizens and ngos can utilize this medium; create a group/forum to drive home the reform in the customary law of inheritance. they can sponsor programmes on the radio station, television or print media to educate people on gender equality of which the decisions of the supreme court stand for. they can create jingles and run it on the local tvs and radio stations where most of the traditional leaders, rural men and women reside with their indigenous languages to create the awareness. education, mass mobilisation, and sensitisation programme african women, especially those in the remote and rural communities who are usually cut off from modernity and access to justice must be mobilized and informed of the changes in the customary law of inheritance and how the supreme court decisions have reversed the age long custom. they can be mobilized in places of religious worship, market places, schools, co-operative societies, various women unions, as well as town halls and be sufficiently informed that the courts have eliminated the notion of inferiority, subordination and gender dichotomy which society previously placed on women because of traditional beliefs in patriarchy and male primogeniture. this mobilization, awareness and sensitization programme can be spearheaded by the traditional rulers, village heads and religious leaders who are within the locality. involvement of professional institutions/ngo professional institutions like the nigerian bar association, the nigerian bar association women forum, kenya bar, the international federation of women lawyers and other nongovernmental organization should rise to the 53 these included the family head who is the first mediator for internal family disputes; the umuadas, or married daughters who may return to enforce morality and prevent issues such as spousal abuse, theft and corruption; the village tribunal composed of 10 to 15 lineages which settles the majority of land issues, and its extension to the city through organizations like town unions; age grades (cohorts) who have responsibilities to each other such as burial and enforcement of discipline amongst each other; chiefs (titled men) who has statutory authority to reconcile parties in civil matters. 54 h nwaechefu, and s.k. timiebiowei, ‘discrimination against female and widow in inheritance of real estate and succession in the south eastern nigeria: a breach of international instrument and the nigeria constitution’ journal of law, policy and globalization. [2019] (81). issn 2224-3240.p53-60 african customary and religious law review (acarelar) 3 (2022) 30 | p a g e occasion through advocacy and condemn laws or policies that discriminate against gender equality.55 fida in kenya has been using radio talk shows and legal aid open days to raise awareness among women about their property rights. that includes educating women on the importance of jointly registering property that they buy with their husbands, because under the matrimonial property act that gives both spouses the same interest in the property.56 in nigeria, nba women forum, fida and other women organisations were at the national assembly the legislative headquarters in nigeria on the 8th of march 2022 (being the international day for women with the theme break the bias) to protest the gender sensitive bills that were voted out by the law makers. the nigerian women occupied the national assembly for three days until the decision of the law makers were reversed. 55r.a onuoha ‘discriminatory property inheritance under customary law in nigeria: ngos to the rescue’ the international journal of not-forprofit law. [2008] (10) (2) 10 56fida kenya, women’s land and property rights in kenya. available at https://land.igad.int/index.php/documents1/countries/kenya/gender-3/625-women-s-land-and-property-rights-in-kenya/file. accessed on 20th may 2022. https://land.igad.int/index.php/documents-1/countries/kenya/gender-3/625-women-s-land-and-property-rights-in-kenya/file https://land.igad.int/index.php/documents-1/countries/kenya/gender-3/625-women-s-land-and-property-rights-in-kenya/file ekpendu: some thoughts on habitual residence as an alternative to the concept of domicile under the nigerian law 70 | p a g e some thoughts on habitual residence as an alternative to the concept of domicile under the nigerian law* abstract the doctrine of domicile is a foreign concept which has been received and adopted in nigeria by reason of her political nexus with her colonizers, the british. through the doctrine, an individual or a propositus was connected to some legal systems for particular legal purposes. domicile is used in nigeria as a connecting factor in a large number of questions that need to be determined by the personal law of the individual. the concept as received and adopted in nigeria, is fraught with difficulty in its application due to unrealistic and artificial rules leading to uncertainty of outcome. through the doctrinal research method, this article has found that domicile of origin has the potential of reasserting itself as the person’s actual domicile. it also found that, domicile of origin referred to as the revival doctrine has the characteristic of connecting a person to a legal system which may be far and remote from the circumstances of his life. a way forward is to share some thoughts on habitual residence as an alternative to the concept of domicile since habitual residence is without the various legal artificialities of domicile such as the doctrine of revival. also, habitual residence has been used as a connecting factor for jurisdiction with regard to divorce, separation, and nullity of marriage, the recognition of foreign divorces, the formal validity of wills, international adoptions and child abduction as a compromise between the common law concept of domicile and the civil law notion of nationality. keywords: habitual residence, domicile, connection, alternative, nigerian law 1. introduction it has been universally recognized that questions affecting the personal status of a human being should be governed constantly by one and the same law irrespective of where he may happen to be or where the facts giving rise to the question may have occurred.1 but unanimity goes no further. there is disagreement on two matters. what is the scope of this ‘personal’ as it is called, and should its criterion be domicile or nationality? in england, just as in nigeria however, it has long been settled that questions affecting status are determined by the law of the domicile of the propositus and that broadly speaking, such questions are those affecting family relations and family property. to be more precise, the following are some of the matters that are to a greater or lesser extent governed by the personal law: the essential validity of a marriage; the effect of marriage on the proprietary rights of husband and wife; jurisdiction in divorce and nullity of marriage; though only to a limited degree; legitimacy, legitimation and adoption; wills of movables, intestate succession to movables and inheritance by a dependent.2 domicile is an english concept which has been received and adopted in nigeria by reason of her political connection with the british.3 the concept of domicile before the nineteenth century was universally recognized as the basis for the application of personal law.4 according to cheshire and north,5 the principle of domicile had no rival for over five hundred years. the principle was first developed in the middle ages by the italian school of post-glossators. the post-glossators distinction between real and personal status led to the universal recognition that questions affecting the personal status of a human being should be governed constantly by one and the same law, irrespective of where the facts giving rise to the question may have occurred.6 thus, in the 19th century, english courts struggled to determine whether the personal law indicating a connection between an individual and the place should be that of nationality or domicile. many of the cases concerned english men or scotsmen who had left their places of birth and gone abroad in the service of empire.7 at a later date, questions would arise as to whether the individual retained sufficient connection with england or scotland. given that, in the 19th century, the english courts tended to regard their justice as superior to that in less happy lands,8 the english judges *by caroline mbafan ekpendu, llb (hons) (benin), bl (nig. law school), llm (bsu), phd (bsu), lecturer, department of private law, benue state university, makurdi. tel. 08036285390; 08076404131; email: carolineekpendu@yahoo.com 1 jj fawcett and j m carruthers, cheshire, north and fawcett private international law (14th edn, oxford university press 2008) 154 2 ibid 3 caroline mbafan ekpendu, ‘the challenges of domicile in conflict of laws in nigeria’ (degree of doctor of philosophy in law thesis, benue state university, makurdi 2016) 4 i o agbede, themes on conflict of laws (shaneson limited 1989) 49 5 g c cheshire and p m north, private international law (8th edn, butterworths 1970) 180 6 ibid 153; can this statement still stand given the realities of the 21st century. for instance, in nigeria, there is the indigene settled paradigm as a result of which there is spontaneous crisis all over nigeria? 7 colonel udny in udny v udny (1869) lr1sc & div441 had left scotland to serve in the guards and then travelled to france to escape creditors. 8 to the british colonisers, their home was the best. even as they went out to colonise other people, they regarded justice in their countries as superior and in the colonies as inferior and less happy lands. furthermore, principles of common sense, natural justice, equity and good conscience by british judges to give england justice the unique face it carries around the world. african customary and religious law review (acarelar) 5 (2024) 71 | p a g e came to regard domicile rather than nationality as the important link between the individual and the place.9 the 19th century witnessed an important legal development in common law countries. the personal law tended to become that of domicile, while in continental/civil countries, the personal law tended to be that of nationality. the concept of domicile has been received and adopted in nigeria,10 where it operates alongside other personal connecting factors giving rise to conflict of laws problems. the adoption of domicile in nigeria is said to be justified on ground of practical necessity as ‘nigerian nationality’ covers a number of independent legal systems.11 problems however arise in the automatic adoption of the concept of domicile. one problem is that domicile was received from a country where the social and geographical background of its people is different from nigeria. secondly, the complex rules of the concept make it difficult to work effectively in the face of indigenous personal systems of law. thirdly, the concept is fraught with several short comings which made fawcett and carruthers state that; ‘the english concept of domicile is bedeviled by rules, these are complex, often impossible to justify in policy terms, and lead to uncertainty of outcome.’12 therefore, an automatic adoption of the concept of domicile from a country where the social and geographical background of its people is different from nigeria would further work injustice. it is the injustice caused by the strict adherence to the unreformed principles of domicile in the connection of an individual to a particular state or place where he has no ties on the guise of revival of domicile of origin that this article shares some thoughts on habitual residence as an alternative to the concept of domicile under nigerian law. 2. conceptual clarifications domicile the concept of domicile is not uniform throughout the world. to a civil lawyer, it means habitual residence, but at common law, it is regarded as the equivalent of a person’s permanent home.13 black’s law dictionary has defined domicile in two perspectives. the first definition is, ‘the place at which a person has been physically present and that the person regards as home, a person’s true, fixed, principal, and permanent home, to which that person intends to return and remain even though currently residing elsewhere.’ the second definition refers to domicile as, ‘the residence of a person or corporation for legal purposes.14 in mitchell v us,15 the supreme court of america defined domicile as: a residence at a particular place accompanied with positive or presumptive proof of an intention to remain there for an unlimited time… by the term domicile, in its ordinary acceptation, is meant the place to be his domicile until facts advanced establish the contrary. domicile is also in the nigerian case of omotunde v omotunde,16 defined as; the place at which a person is physically present and that which the person regards as home, a person’s true, fixed, principal and permanent home to which that person intends to return and remain even though currently residing elsewheresame is also termed permanent abode. the basic idea of domicile was that of permanent home. lord cranworth in whicker v hume,17 observed; ‘by domicile we mean home, the permanent home. and if you do not understand your permanent home, i’m afraid that no illustration drawn from foreign writers or foreign languages will very much help you to it.’ though the idea of permanent home is the central practical feature of domicile, lord cranworth’s definition has a deceptive simplicity; for domicile is a conception of law which, though founded on circumstances of fact, gives to those circumstances an interpretation frequently different from that which a layman would give them.18 for instance, while it is acknowledged that a domicile must be imputed to everyone, yet there are some persons who lack a home in the conventional sense of the word and others who have more than one home.19 a consideration of both the dictionary and case law definitions of domicile would lead to the irresistible conclusion that, domicile is the 9 j o’brien, smith’s conflict of laws (2nd edn, cavendish publishing limited 1999) 65 10 interpretation act cap 123 laws of the federation of nigeria 2004, s 32 provides for the reception and adoption date. 11 agbede (n4) 49 12 fawcett and carruthers (n1) 154 13 whicker v hume (1858) 7hl casl24 at 160 14 b a garner (11th edn, thomson reuters 2019) 614 15 88 us 350, 352 (1874) 16 (2001) 9 nwlr (pt. 718) 252 at 281 (per adekeye, jca) 17 whicker (n 13) 18 r h graveson, conflict of laws (7th edn, sweet and maxwell 1974) 185 19 c o ndifon, issues in conflict of laws (vision connections digital publishers 2001) 319-320 ekpendu: some thoughts on habitual residence as an alternative to the concept of domicile under the nigerian law 72 | p a g e connecting link between a person or cooperation to a particular legal system for the determination of his personal laws. habitual residence according to black’s law dictionary,20 habitual residence is ‘a person’s customary place of residence, especially, a child’s customary place of residence before being removed to some other place.’ black’s law dictionary further explained that, ‘the term, which appears as an undefined term in the hague convention, is used in determining the country having a presumed paramount interest in the child.’21 the concept of habitual residence is used in a number of international conventions, beginning with the hague convention on civil procedure of 14 november, 1896 and a number of international conventions dealing with conflict to complement or supplant the traditional connecting factor of domicile, example in the rome convention 1980.22 the concept has been widely employed in english statues, even those not implementing international conventions. it has been used as a connecting factor for jurisdiction with regard to divorce,23 separation,24 and nullity of marriage,25 the recognition of foreign divorces,26 the formal validity of wills,27 international adoptions,28 and child abduction.29 it has also been used in commercial areas of law such as in relation to contractual obligations as a result of the contracts (applicable law) act 1990. the term is a pivotal part of the hague convention on international child abduction, which article 4, uses the term but does not define it, as follows: ‘the convention shall apply to any child who was habitually resident in a contracting state immediately before any breach of custody or access rights. the convention shall cease to apply where the child attains the age of sixteen years’. 3. general principles of domicile every person must have a domicile. the evolving 19th century case law made it clear that every child is accorded a domicile by english law.30 it is a settled principle that nobody shall be without a domicile and in order to make this rule effective, the law assigns what is called a domicile of origin to every person at his birth, namely, to a legitimate child the domicile of the father, to an illegitimate child the domicile of the mother and to a foundling the place where he is found.31 this domicile of origin prevails until a new domicile has been acquired. for instance, if a nigerian leaves nigeria, his country of origin with an undoubted intention of never returning to nigeria again, his domicile of origin adheres to him until he actually settles in another country, for instance, in australia, with the requisite intention. the reason advanced for the above rule is stated to be the practical necessity of connecting every person with some legal system by which a number of his legal relationships may be regulated.32 possibility of dual domiciliaty for singular purpose? this rule also arises from the necessity of connecting every person with a legal system by which a number of his legal relationships may be regulated.33 the facts and events of a person’s life frequently impinge upon several countries. it is necessary on practical grounds to hold that a person cannot possess more than one domicile at the same time at least for the same purpose.34 the application of this rule in nigeria according to agbede,35 provoked a good deal of controversy which found expression in a number of irreconcilable decisions. it has produced two schools of thought (whose proponents are the federal school of thought and the state school of thought) one in favour of state domicile,36 the other in favour of a federal domicile.37 the arguments advanced for both the federal and states schools of thought were that matters which depend on the application of domicile are shared between the federal and the state governments. since domicile in the federation as such will not be adequate to connect a person with the law of a particular state and since the rule of english law, as claimed prescribes that a person 20 garner (n 14) 1565 21 ibid 22 https://en.wikipedi.org/wiki/habitual_residence accessed 8 september 2011. 23 domicile and matrimonial proceedings act 1973, s.s 2 (british) 24 ibid 25 ibid s (3) (b) 26 family law act, 1986. s 46 (1) (b) (british) 27 wills act 1963 s1 (british) 28 adoption and children act 2002 s.47 (3) (british). 29 child abduction and custody act. 1985, schedule 1, article 4 30 bell v kennedy (1808) lr1sc and div. 307 at 320; udny v udny (1869) lr1sc and div 141 at 448-457, mark v mark (2006) 1hc 98 31 fawcett and carruthers (n 1) 155 32 d mcclean and k beevers, the conflict of laws (6th edn, sweet and maxwell 2005) 28 33 ibid 34 fawcett and carruthers (n 1)156 also udny (n 7) 35 agbede (n4) 66 36 machi v machi (1960) llr 103; adeyemi v adeyemi (1962) llr; see udom v udom (1962) llr 112 37 see nwokedi v nwokedi (1958) llr 94, odunjo v odunjo (1964) llr 43; odiase v odiase (1965) nmlr 196 african customary and religious law review (acarelar) 5 (2024) 73 | p a g e cannot have more than one domicile, the state school argued that only a ‘state’ domicile was feasible. the ‘federal school’ on the other hand, argued that at least for purposes of those matters within the jurisdiction of the federal legislature, ‘domicile’ should be based on residence anywhere in nigeria with an intention to remain in nigeria permanently.38 perhaps the argument of the ‘state school’ was an over simplification for the reason that a person is said to be domiciled in a law district and not the composite state as operated in unitary states such as the united kingdom. such reasoning is contradicted by social circumstances in nigeria, a federal state where for the purpose of matrimonial causes act,39 for the entire federation for which domicile is the only connecting factor. with the above controversy laid to rest by the matrimonial causes act, it is safe to agree with fawcett and carruthers,40 that ‘a person cannot possess more than one domicile at the same time, at least for the same purpose.’ domicile signifies connection with a law district, that is, a territory subject to a single system of law domicile signifies a connection with a single system of territorial law but does not necessarily connote a system that prescribes identical rules for all classes of people.41 it may well be that in a unit such as nigeria, different legal rules apply to different classes of the population according to their religion, race or tribe, but nonetheless it is the territorial law of nigeria that governs each person domiciled here, notwithstanding that customary law may apply to one case, islamic law to another. also, in the case of a federation, where the legislative authority is distributed between the state and federal legislatures, this law district is generally represented by the particular state in which the propositus has established his home. in nigeria for instance, the legislative authority is distributed between the federal and the state legislatures and a person can be domiciled in any one of the states in nigeria. but for purposes of matrimonial causes, a propositus need not be domiciled in any of its states per se for the matrimonial causes act,42 which is a direct consequence of the division of legislative powers in nigeria for the act to apply to such a person. also, australia which is a federal state has introduced rules that for the purpose of matrimonial proceedings a person can be domiciled in the federal state.43 thus, for the purposes of divorce, a person could be domiciled in australia while being domiciled in say, queensland for other purposes.44 presumption of the continuance of an existing domicile until proved that another is acquired there is a presumption in favour of the continuance of an existing domicile. the burden of proving a change of domicile lies on the person alleging the change.45 conflicting views have been expressed as to the standard of proof required to rebut the presumption. according to scarman j. in the estate of fuld (no.3),46 the standard is that adopted in civil proceedings, that is, proof on a balance of probabilities and not proof beyond reasonable doubt as is the case in criminal proceedings. but sir jocelyn simon p. has observed that the standard of proof goes beyond a mere balance of probabilities.47 sir jocelyn simon’s observation might have stemmed from the conclusions reached in the cases of winans v ag,48 and ramsey v liverpool royal infirmary.49 according to scarman j, in re fuld’s estate after observing the words used in winans and ramsey cases emphasised that preference should instead be given to the nature and quality of the intention to be proved. he summarised his position as follows, ‘two things are clear; first, that unless the judicial conscience is satisfied by evidence of change, the domicile of origin persists and secondly, that the acquisition of a domicile of choice is a serious matter not to be lightly inferred by slight indications or casual words.50 it is obvious from the cases that the standard adopted in proving a change of domicile is greatly influenced by the type of domicile that is under consideration. for an allegation that a domicile of origin is lost, a higher standard is required unlike where it is one of choice where the standard is on the balance of probabilities. the presumption of continuance of domicile therefore varies in strength according to the kind of domicile which is alleged to continue. it is weakest when the domicile is one of dependency and strongest when it is that of origin.51 domicile of a person is determined according to the received english law and not according to any foreign concept of domicile. this principle suggests that the domicile of a person is to be determined according to english law or the received english law as the case may be and not according to any foreign concept of domicile. there is however one 38 agbede (n 4) 66 39 cap m7 laws of the federation of nigeria 2004 40 cheshire, north and fawcett, private international law (n 1) 156 41 ibid 42 cap m7 (n39). see also odiase v odiase (n 37) 43 australian family law act 1975, s 39 (3) (b) 44 cmv clarkson & j hill, the conflict of laws (oxford university press 2006) 21 45 bhojwani v bhojwani (1995) 7 nwlr (pt. 407) 349 at 353 46 (1968) 675 at 685-686 47 henderson v henderson (1967) 77 at 80; steadman (1976) ac 538 at 538 48 (1904) ac 287 49 (1930) ac 588 50 mcclean and beevers (n 32) 28 51 ibid ekpendu: some thoughts on habitual residence as an alternative to the concept of domicile under the nigerian law 74 | p a g e statutory exception to this rule in the united kingdom, under section 46 (3),52 a foreign divorce (or other matrimonial decree) is entitled to recognition on the basis that one of the parties is domiciled in the country where the judgment is obtained. thus, for the purpose of this rule, domicile may mean either domicile according to english law or domicile according to the law of the country in which the divorce was obtained.53 in nigeria, the domicile of a person is determined according to the characterization of the lex fori and not according to any foreign concept of domicile.54 this, it is submitted, agrees with the practice under english law where the english courts normally apply their own rules of domicile to determine where a person is domiciled.55 the connecting factor, domicile, must be classified according to english law, the lex fori (the law of the forum). if this results in a reference to a country where the law is not territorially based, it is necessary to adopt that country’s criterion of personal law to lead to the applicable law.56 4. the effects of domicile on the nigerian legal system the concept of domicile though desirable, the revival doctrine of domicile of origin runs counter to the fundamental principle of domicile, as it may locate a person’s domicile in a country which cannot be his home by any stretch of the imagination. a close perusal of the doctrine reveals its serious adoption under the nigerian legal system. domicile of origin has the potential of reasserting itself as the person’s actual domicile. if a domicile of choice is abandoned without being replaced by a new domicile of choice, then the domicile of origin revives.57 this rule was settled by the house of lords in 1869 in udny v udny,58 lord westbury stated as follows; the domicile of origin is the creature of law and independent of the will of the party, it would be inconsistent with the principle on which it is by law created and ascribed to suppose that it is capable of being by the act of the party entirely obliterated and extinguished. it revives and exists wherever there is no other domicile and it does not require to be reaquired or reconstituted, animo et facto in a manner which is necessary for the acquisition of a domicile of choice.59 the revival of origin rule, conceived and developed in victorian england, assumes that if ever a person ceases to have a permanent home, the most appropriate personal law to allocate to him is the law of the original native home.60 these rules were designed for the class of persons who might have an ancestral home to which they would long feel a commitment. however, in the more migratory modern world, it would normally be more sensible to attribute to a person the law of the country which was most recently the home, rather than that of a country which has been abandoned, perhaps very many years previously. a person may have few or no connections with the domicile of origin, and even may never have been there.61 nigeria having been tutored along the lines of the common law, acquired the revival doctrine as part of her colonial heritage.62 however, the social-political structure of nigeria greatly differs from that of england and thus, the concept of domicile as received from english law cannot adequately meet the needs of the nigerian legal system. however, the rules of domicile as adopted in nigeria operates in the same manner as in the country of adoption, the british without any modifications. for instance, the concept of domicile relates to countries or territories or states and not to localities within countries or territories. given the hardship caused by the revival doctrine in domicile of origin in technically connecting a person to a country or constituent state which he has abandoned or may never have set foot on, the article shares some thoughts on habitual residence as an alternative to the concept of domicile in nigeria. 5. habitual residence as an alternative to domicile in nigeria habitual residence is a new connecting factor which has emerged over the last forty years.63 initially, this was a concept developed by the hague conference on private international law as a compromise between the common law concept of domicile and the civil law notion of nationality when uniform jurisdictional rules for divorce, separation, and annulment were introduced throughout the european union, habitual residence was adopted as the main connecting factor.64 habitual residence is therefore a concept without the various legal artificialities of domicile, such as the doctrine of revival and analogies with that concept are not appropriate.65 although, determination of a person’s habitual residence particularly that of a child, has perhaps inevitably also become 52 (the english) family law act 1986 which has no application in nigeria. 53 clarkson and hill (n 44) 22 54 agbede (n 4) 53 55 see re annesley (1926) ch 692 56 clarkson and hill (n 44) 22 57 ibid at 25 58 (1869) lr1sc & div 141 59 ibid at 458 60 clarkson & hill (n 44) 26 61 ibid 62 interpretation act cap 123 laws of the federation of nigeria 2004 s.32 (1) 63 clarkson & hill (n 44) 43 64 ibid 65 re s (a minor (abduction) 1991 2 flr 1 at 20, ca african customary and religious law review (acarelar) 5 (2024) 75 | p a g e partly a question of law, and the law on habitual residence has become increasingly complex. the burden of proof is upon the person seeking to show a change of habitual residence to establish this:66 acquisition of a new habitual residence in determining the acquisition of a new habitual residence, the house of lords in rcj (abduction custody rights)67 held that residence for an appreciable period of time and settled intention to reside on a long term basis are needed for acquisition of a new habitual residence. an examination of the requirements essential to the acquisition of a new habitual residence as deduced from the house of lords decision in re j’s case shall be undertaken. residence from the reported cases, before a child or adult can be habitually resident in a country, he must be resident there.68 this does not necessarily require physical presence at all times. situations such as temporary absence, for example on holidays,69 or for educational purposes,70 or for an attempt to effect a reconciliation with an estranged spouse,71 will not bring an end to habitual residence. indeed, it can continue despite considerable periods of absence.72 in ikimi v ikimi,73 a petitioner was held to be habitually resident in england for the whole of the preceding year, despite spending 204 days of that year in a concurrent habitual residence in nigeria and spending only 161 days in england. in all these cases, the court’s focus is on the past experience of the individual and not so much on future intention unlike in domicile cases. thus, the objective fact of the residence is decisive and the intentions of the person are of little importance even if it is clear that the person has no desire to live in the country.74 in re j (abduction: custody rights),75 lord brandon stated that ‘a person could never acquire a habitual residence within a single day but only after an appreciable period of time.’ in nessa v chief adjudication officer,76 the house of lords interpreted this to mean that a person must have taken up residence and lived there for a period. it must be shown that the residence has become habitual and is likely to be habitual. the facts of the nessa case were that, a woman from bangladesh, who had a right of abode in the united kingdom, arrived england and applied for income support four days later. she was held that, even though she had come here for the settled purpose of remaining (and so could even be domiciled here), she had not acquired habitual residence within four days. however, the period could be short but this depends on the degree of settled purpose. in re af (a minor) (child abduction),77 the court of appeal had said that one month could suffice. settled intention residence must be accompanied by a ‘settled purpose’78 or ‘settled intention’79 of remaining in the country for the time being. the element of ‘animus’ required here is less than that for domicile. there is no need to show a person intended to stay there permanently or indefinitely. the settled intention can be for a limited period of time.80 thus, a person who goes to a country for the purpose of study or of taking up employment under a fixed term contract can become habitually resident there. in kapur v kapur,81 a man who came to england to study for the english exams, was held to be habitually resident here for the purposes of divorce jurisdiction. unlike domicile where the courts attempt to discover the necessary intention thereby producing absurd results, a settled intention or purpose is not something to be searched for under a microscope. if it is there at all, it will standout clearly as a matter of general impression.82 the settled intention is easier to show when the period is longer in habitual residence whereas in domicile, long residence does not confer a domicile of choice.83 indeed, it has been suggested that where there is a long period of residence, the objective facts will then point to this being the habitual residence.84 66 f v s (wardship: jurisdiction) 1993 2 flr 686 67 (1990) 2 ac 562 at 578 68 re m. (abduction: habitual residence) 1996 69 findlay v findlay 1994 slt 709; rellis v hart 1993 slt 738 70 re a (wardship jurisdiction) (1995) 1 flr 767 71 re b (child abduction: habitual residence (1994) 2 flr 915 72 oundjian v oundjian (1979) 1 flr, where over one-third of the period was spent abroad. 73 (2001) ewca civ 873, (2001) 3 wlr 672 74 mvm (abduction: england and scotland (1997) 2 flr 263. 75 (n67) 76 (1999) 1 wlr 1937 77 (1992) 1 fcr 269 78 shah v barnet london borough council (1983) 2ac 309 at 344. 79 re j (abduction custody rights) (n 67) 578 80 al habtoor v fotheringham (2001) 1 flr 951 at 966 81 (1934) flr 920 82 fawcett & carruthers (n1) 190 83 winans v ag (n 48) 84 zenel v haddow 1993 slt 975 ekpendu: some thoughts on habitual residence as an alternative to the concept of domicile under the nigerian law 76 | p a g e abandonment unlike domicile, a person can cease to be habitually resident in a country in a single day if he or she leaves it with a settled intention not to return to it but to take up long term residence in another country instead. habitual residence in one jurisdiction does not necessarily come to an end merely because the person concerned leaves for a short period or for a temporary purpose, such as formal education.85 the abandonment of a habitual residence can take place without acquisition of another habitual residence elsewhere,86 with the inevitable result that a person has no habitual residence.87 since habitual residence can be abandoned in one day but not acquired until there has been residence for a period showing that residence has become habitual, this gap when there is no habitual residence will correspondingly last for that period. during this period, for example, a child will be without the protection of the legislation on child abduction,88 and an adult such as already seen in the nessa case will not get income support.89 habitual residence as seen from the discussion above, has for some time been used as a connecting factor. it has played a most important role in the conventions of the hague conference on private international law, since it is perceived as providing an alternative to nationality and as being free of the difficulties associated with domicile, such as those in regard to intention, origin, dependency and prolepsis. 6. conclusion and recommendations the concept of habitual residence is best suited to modern conditions where people have freedom of movement around the world than in the past and is ideally suited for purposes of divorce, jurisdiction or child abduction where the aim is not to establish a ‘real home’ or ‘permanent home’ as in the case of domicile but rather to identify a jurisdiction with which a person has a legitimate connection. in nigeria, where for instance, the policy is to discourage ethnic loyalty, the alternative of habitual residence is best suited to where a propositus will be taken to be habitually resident in a state where he intends to reside and make a living. besides the domicile of a nomad, for instance, nomadic fulani may be fluid, given the strict rules of a domicile of choice but with the alternative of habitual residence, such a propositus has a connecting factor. the above submissions do not portray habitual residence without any flaws, as habitual residence is said to be unsuitable for general choice of law purpose as it generates as link with a country that may be tenuous.90 for instance, an english domiciliary working on a one or two-year contract can become habitually resident in saudi arabia. if habitual residence were to replace domicile as a general connecting factor for choice of law purposes, this would mean that questions such as his capacity to marry more than one wife would be governed by saudi arabian law. such an approach would be inappropriate and could encourage people to engage in a deliberate evasion of the law that would normally be applicable to them. further, one could not countenance habitual residence as a general connecting factor when it is possible to have no, or more than one, habitual residence.91 attempts to employ habitual residence as a general substitute for domicile has been rejected by the law commission.92 despite the flaws of habitual residence pointed above, it is opined that habitual residence could be employed in certain choice of law situations in nigeria where an adherence to the rigid principles of domicile would create injustice to the propositus (person). habitual residence could therefore be established based on a simple inquiry to establish where a person has his habitual residence. for instance, the length of time spent in a place other than the country of origin, a person’s investments, connections and so on, in another country or state which he is habitually resident rather than the rigid principles of domicile. 85 p v p (2007) 2 flr 439 86 re m (abduction: habitual residence) (n 68) 87 mark v mark (2006) ac 98 88 re f (a minor) (child abduction) (1992) 1 flr 548, ca 89 nessa (n76) 90 clarkson & hill (n 44) 50 91 ibid 92 ibid 51 ikpeze & okoro: constitutional supremacy in nigeria: an overview 90 | p a g e constitutional supremacy in nigeria: an overview* abstract the practice of constitutional democracy in nigeria is a mixture of both observance and breach of supremacy of the constitution. it is so in the sense that the dry letters of the constitution of the federal republic of nigeria, 1999 are sterile, dormant or docile unless activated and brought to life by a judicial pronouncement of a court of law declaring certain executive or legislative acts as unconstitutional and therefore null and void. this means that where there is a breach of the constitution unless and until an action is taken out challenging it, such breach persists albeit clothed with the toga of ‘constitutionality’ or being ‘constitutional’ and actually in some situations becomes the law until pronounced unconstitutional or inconsistent with the constitution. this has given rise to a plethora of cases of unchallenged violations of the constitution resulting to injustice sometimes against the federating states and violations of human and civil rights of the citizens. this surely does not represent the spirit of constitutional supremacy. in addition, it was found that there is a seemingly unending tussle of supremacy between constitutional supremacy and sovereignty of the people, the makers of the constitution. this conflict is predicated upon where lies the ultimate supremacy. this research adopted the doctrinal methodology using primary and secondary sources of information and takes an examination of the concept of constitutional supremacy from both de jure and de facto perspectives. in the end, it is recommended among others that the constitution being a legal document should have an auto operating clause that automatically renders unconstitutional, null and void any act that breaches it so as to maintain its supremacy and integrity at all times. keywords: constitution, supremacy, democracy, nigeria 1. introduction in a democratic society, the constitution binds and governs all institutions of government and the people ditto other statutes which derive their validity from the constitution. in nigeria, the constitution of the federal republic of nigeria, 1999 has its binding and coercive powers expressly provided.1 by its overall binding powers, it acquires a status of supremacy over all persons in nigeria including over other laws.2 constitutional supremacy declares the constitution’s ability to establish a hierarchical primacy among various laws. it places the constitution at the top of the pyramid and the source of all other legal documents. it makes the constitution the highest and supreme law of the land otherwise the fundamental and organic law of the nation. this hierarchical primacy and constitutional rigidity are always activated in cases of conflict. in marbury v madison,3 where the court held that ensuring the effectiveness of the constitution as the supreme law of the land implies that the court should have the power to strike down legislative acts that are in conflict with the provisions of the constitution. supremacy of the constitution therefore is its quality, which positions it on top of all state institutions. constitutional supremacy not only affects the rank order of legal norms but also the institutional structure of the state as it entails the subordination of the legislator.4 therefore, constitutional supremacy is the position of the constitution undisputedly having the superior or greatest power or authority. 2. definition, concept and nature of constitutional supremacy supremacy is the quality or state of having more power, authority, or status than anyone else; the state of being supreme.5 constitutional supremacy is the system of government in which the law-making freedom of parliamentary sovereignty abandons to the requirements of a constitution as the constitution is supreme.6 this is so because the parliament’s authority derives from the constitution. it is the quality or state of the constitution being the numero uno by having a binding force on all authorities and persons and the grundnorm from which all other laws in a political and democratic society derive its life and validity. thus, the court has a duty to interpret ordinary legislations or statutes in a way or manner consistent with constitutional provisions, otherwise, where or when it is not possible, it must give legal precedence to the constitutional provisions in order to preserve its *by ogugua v. c. ikpeze, phd, llm, llb, bl, professor and dean, faculty of law, nnamdi azikiwe university awka; and *jude tobechukwu okoro, llb, bl, ll.m, phd candidate, faculty of law, nnamdi azikiwe university, awka; lecturer, department of public law, faculty of law, federal university, oye-ekiti, tel: +234 8064758398; e-mail: jude.okoro@fuoye.edu.ng. 1 s 1 (1) constitution of the federal republic of nigeria, 1999 hereinafter cited as cfrn, 1999 2 ibid; (3) 3 5 us 137 [1803] 4 j limbach, the concept of the supremacy of the constitution, 64 mod law review, i, 7 (2001) cited by g romeo in the conceptualization of constitutional supremacy: global discourse and legal tradition, german law review (cambridge university press, 2020) pp. 904 – 923 at p. 905 5 google.com accessed on 20 august, 2024 6 <https://www.bartleby.com> accessed 20 august, 2024 mailto:jude.okoro@fuoye.edu.ng https://www.bartleby.com/ african customary and religious law review (acarelar) 5 (2024) 91 | p a g e supremacy and maintain the hierarchical primacy.7 in terms of legal thinking, the conceptual device of constitutional supremacy is ability to transform the normativity of the constitution into all-powerfulness.8 the courts in a plethora of cases have upheld the supremacy of the constitution both as it relates to organs or institutions of government or the state and persons. section 1 (1), (2) and (3) of the cfrn, 1999, provides for the supremacy of the constitution. by sub-section (1), no person or constituted authority is above the constitution and where any such person or authority acts outside the constitution, such an act would be declared unconstitutional, void and of no effect. in ag lagos v a.g. federation,9 it was declared that the actions of the president in withholding the federal allocation to lagos state was in contrast to section 162 (5) of the constitution and therefore they were unconstitutional, null and void. similarly, in inakoju v adeleke,10 some members of the oyo state house of assembly purported to remove the governor of the state. however, they did not follow the full provisions of section 188 of the constitution. the supreme court declared their actions unconstitutional, null and void. by sub-section (3), it means that any law that conflicts with the provision of the constitution shall be inapplicable to the extent of its inconsistency. this is also known as the blue pencil rule or severability rule.11 in inspector general of police v anpp 12 the provisions of the public order act which provided that a permit is needed from the governor before people can assemble in public contrary to the provision of the fundamental rights of freedom of expression and association which is contained in sections 39 and 40 of the 1999 constitution was declared unconstitutional and inconsistent with the constitution. 3. distribution of powers and constitutional supremacy the cfrn, 1999, creates various organs of government with assigned specific functions to them13 ditto various tiers of government,14 also with their respective specific areas of competences and shared competences and the relationships inter-se.15 thus all constituted authorities in the exercise of their powers are limited to their areas of competences and shall not be allowed to exceed the powers allotted to them under the constitution, or to act in any manner inconsistent with the provisions thereof.16 any exercise of powers otherwise than in accordance with the provisions of the constitution shall be declared ultra vires or null and void and of no effect to the extent of its inconsistency with any of the provisions of the constitution. for instance, the parliament at the state level symbolized by the state house of assembly cannot legislate on any subject matter in the exclusive legislative list pursuant to any purported exercise of its legislative powers.17 any such act may be declared ultra vires18 in substance (substantive ultra vires) or procedure (procedural ultra vires) by the courts in the exercise of its power.19 nigeria is a federation20 with a rigid and written constitution. in a jurisdiction like ours, three things are quite visible(a) the text of the constitution is comprehensive, (b) the constitution is normative and (c) constitutional arguments are a ruling-out move in litigation, meaning that whenever a constitutional argument is validly raised, it takes precedence over all other arguments and the court has to sustain it.21 4. key purposes of the supremacy of the constitution a. establishing a legal framework: the constitution provides a foundational legal framework for governance, outlining the structure of government, the powers of different branches, and the rights of citizens. this ensures that all laws are grounded in a single, authoritative document. 7 regina v. director of public prosecutions ex parte kebeline & ors. [1994] 4 all e r, 801 8 d p kommers and r a miller, the constitutional jurisprudence of the federal republic of germany, 47 (durham and london eds., 2012) cited by g romeo, op. cit. at p. 906 9 [2004] 18 nwlr (pt. 904) 1 10 [2007] 4 nwlr (pt. 1025) 11 the blue pencil rule doctrine is a legal principle that allows the legally valid enforceable provisions of the contract to stand despite the nullification of the legally void unenforceable provisions. it is the striking out of the illegal and unenforceable portion of a contract and retaining the rest of the contract and allowing it to be enforceable and legal. <https://en.wikipedia.org> accessed 20 august, 2024; severability rulea law that violates the constitution may be invalidated by the courts in entirety or the courts may adopt the doctrine of severability to sever the illegal parts and save the rest of the statute; pp v pung chen choon [1994] 1 mlj 566. 12 [2007] 18 nwlr (pt. 1066) 457 13 see sections 4, 5 and 6 which established the legislature, executive and the judiciary with their functions respectively. 14 the federal, state and local governmenta three-tier government system 15 see ss. 4 (2), (3), (4) (a), (6), (7), 5 (1), (2); second schedule part i (exclusive legislative list) and part ii (concurrent legislative list). the federal government through the national assembly legislates exclusive on the exclusive legislative list and shares legislative powers with the thirty six states who legislate on matters in the concurrent legislative list through their respective state houses of assembly. the state governments legislates exclusive on all residual matters. 16 <https://lessonotes.com> accessed 21 august, 2024 17 s 4 (3) and (7) (a) cfrn, 1999 18 it is a latin word that translates to “beyond the powers” and means acting or done beyond one’s legal power or authority. it is used in law to describe an act that requires legal authority but is done without it. 19 s 6 (6) (b) cfrn, 1999; marbury v madison 5 us 137 (1803) 20 s 2 (2) cfrn, 1999 21 g romeo, op cit., p. 908 https://en.wikipedia.org/ https://lessonotes.com/ ikpeze & okoro: constitutional supremacy in nigeria: an overview 92 | p a g e b. ensuring consistency and stability: it promotes consistency and uniformity in the application of laws and protects against arbitrary governance. this is crucial for maintaining order and predictability in legal and political systems. c. protecting individual rights: the constitution often includes a bill of rights22 or similar provisions that safeguard individual liberties against infringement by the government. this serves to protect citizens’ rights and freedoms, ensuring that they are not subject to arbitrary treatment. d. providing a mechanism for conflict resolution: the constitution serves as a reference point for resolving disputes between different levels or branches of government. it provides a legal basis for judicial review, allowing courts to interpret the constitution and adjudicate conflicts based on its provisions. e. promoting accountability and limiting power: this helps to limit the powers of government officials and institutions by ensuring they operate within the boundaries set by the constitution. this is vital for preventing abuses of power and maintaining a system of checks and balances.23 5. supremacy of the constitution and the parliament the parliament at the federal, state and local government levels is known as the national assembly, 24 house of assembly25 and council, respectively.26 parliamentary supremacy holds that the legislative body has absolute sovereignty and is supreme over all other government institutions, including executive and judicial bodies.27 it also holds that parliament may change or repeal any previous legislation and so it is not bound by written law or by precedent.28 in nigeria, the parliament is not supreme. its legislative powers are limited and controlled by the constitution.29 there are two types of limits on parliament’s powerssubstantive limits and procedural limits. in the first, parliament is forbidden from violating any provision of the constitution unless expressly authorized.30 for example, it cannot violate the fundamental rights enshrined in chapter iv.31 even at the state level, the house of assembly must not violate its own laws either in substance or in procedure nor violate the constitution through any of its legislative instrument or statute.32 in the second arm, in enacting laws or amending the constitution, parliament must comply with the prescribed constitutional procedures.33 legislative acts will be nullified on constitutional grounds where: a. where legislation offends the principle of separation of powers or the principle of federalism; b. when legislation is inconsistent with the provisions of the constitution; c. when legislation is aimed at taking away individual rights guaranteed under the constitution; d. when the legislature failed to comply with the procedure set down to doing a particular act.34 from the above, the court uses judicial review35 as an instrument of ‘check and balance’ to invalidate legislation or legislative acts that violate the constitution and declare them unconstitutional.36 thus the legislature cannot enact any law that ousts or purports to oust the jurisdiction of a court or judicial tribunal.37 the judiciary has power in view of sections 4 (8) and 6 (6) (a) and (b) of the cfrn, 1999 to nullify inconsistent acts of the legislature with the constitution or check excesses of the executive.38 22 see chapter ii cfrn, 1999 providing for fundamental rights particularly ss. 33 43 23 <www.quora.com> accessed on 20th august, 2024 24 s 4 (1) cfrn, 1999 25 s 4 (6), ibid 26 s 24 of the imo state local government administration law no. 15 of 2000. members of the council are called councillors. 27 <https://en.wikipedia.org > accessed 20 august, 2024 28 ibid 29 ss. 1 (1) and 4 (8), ibid 30 s 9 (2), ibid 31 ss. 33 – 43, ibid 32 s 4 (5) cfrn, 1999 33 s 9 (2) and (3), ibid. 34 ah thian v government of malaysia [1976] 2 mlj 112 35 judicial review is the power of a court to examine the acts of the other branches of government, lower courts, public or administrative authorities and uphold them or invalidate them as may be necessary in line with the relevant constitutional provisions which empower the courts to review such acts. 36 adegbenro v akintola [1962] 1 all nlr 442; an example of such remedies is an order of certiorari 37 s 4 (8) cfrn, 1999 38 a hamilton, the federalist paper no. 78, (penn state electronic classic series publication), 2009, pp. 352 358 cited in i imam, judicial activism in nigeria: delineating the extent of legislative-judicial engagement in law making, iclr, 2015, vol. 15, no. 1, p. 125; dapialong v dariye [2007] 8 mjsc 140 http://www.quora.com/ https://en.wikipedia.org/ african customary and religious law review (acarelar) 5 (2024) 93 | p a g e 6. supremacy of the constitution in military regime the usual practice is that upon a successful coup d‘ etat, 39 the military immediately suspends or abrogates the constitution either in part or in whole and consequently assert the absolutism/supremacy of their laws (decrees).40 this is done by promulgating the federal military government (supremacy and enforcement of powers) decree.41 section 1 of the said decree affirmed and declared absolute powers to make laws for the federation and supremacy of the decrees of the federal military government.42 the court of appeal in commissioner for local government v ezemuokwe43 held thus: ‘decree no. 13 of 1984 re-enacts the supremacy of decrees as the grundnorm or the organic law of the land. therefore … decrees cannot be challenged nor could their validity or invalidity be impugned in any court’. this position was cemented in labiyi v anretiola44 where the supreme court held decrees to superior to even the unsuspended sections of the nigerian constitution. in this case, the court listed the hierarchy of laws in a military regime thus: a. constitution (suspension and modification) decree no. 1 of 1984 b. federal military decrees c. unsuspended parts of the 1979 constitution d. laws made by the national assembly before military takeover or having effect as if so made e. edicts of state military governors f. laws of the state house of assembly before military takeover or having effect as if so made. 7. supremacy of the constitution versus sovereignty of the people constitutional supremacy presupposes its operation in a democracy and it raises the question of where the ultimate authority/power in a country lies. whether it is in the people who made it or in the constitution itself? this is borne out of the fact that when a constitution is made by the exercise of the people’s sovereignty, it binds the people that made it.45 constitutional supremacy represents the highest form of expression of the sovereignty of the people.46 the cfrn, 1999, in section 14 (2) (a) bestows sovereignty on the people from whom government through the constitution derives all its powers and authority. however, there is a conundrum on where the ultimate cum sovereign power lies in a political system. put succinctly, between the constitution and the peoplewhere does supremacy reside? the purport of supremacy of the constitution is that the people are sovereign as provided in section 14 (2) (a). it means that every power in the country answers to the people. also, the preamble of the constitution thus: ‘we the people … do hereby make, enact and give to ourselves the following constitution:’ presupposes that same was made by the people for themselves in the exercise of their sovereignty. this is where the legal conundrum comes up in view of the fact that chapter ii of the constitution titled ‘fundamental objectives and directive principles of state policy are non-justiciable.47 the principle of ‘non-justiciability’ is a doctrine that permits the courts to decline jurisdiction because the issue at hand is unsuitable for judicial determination.48 the non-justiciability of chapter ii49 under which section 14 (2) (a) falls finds support in section 6 (6) (c) of the cfrn, 1999, which ousts the jurisdiction of the court as it relates to chapter ii. this appears as a constitutional fraud against the touted ‘sovereignty’ of the people. this fraud also negates and nullifies the claim in the preamble of the constitution which asserts that same was made by the people for themselves,50 being a product of a military regime which was not the elected representatives of the people.51 undoubtedly, ‘consent’ of the people is a factor in constitution making is conspicuously absent in the 1999 constitution and clearly, this is not a case where the notion of implied consent of the governed can be applied for the makers of the 1999 constitution were not the elected representatives of the people nor was it made under a constitutional democracy. it is trite that the legal enforcement characteristic enjoyed by the law is what lends it the force that compels adherence.52 when this force is however removed from any law, it renders such a law an 39 the term comes from french which literally means “stroke of state” or “blow of state”, <https://en.wikipedia> accessed 20 august, 2024 40 see the constitution (suspension and modification) decree no. 1 of 1966 and the constitution (suspension and modification) decree no. 1 of 1984 et al 41 decree no. 13, 1984. see section 5 42 decree no. 1 of 1984 and decree no. 107 of 1993 43 [1992] 8 nwlr (pt. 258) 139 44 [1991] 3 nwlr (pt. 615) 640; [1986] 1 nscc 304; federal military government (supremacy and enforcement of powers) decree no. 28 of 1987; the (supremacy and enforcement powers) decree no. 28 of 1970; lakanmi v a. g. west [1971] 1 uilr 210 45 see the preamble of the cfrn, 1999; ss. 1 (1) and 14 (2) (a) cfrn, 1999 46 s 14 (2) (a) cfrn, 1999 47 s 6 (6) (c) cfrn, 1999 48 teng chang khim v dato raja ideris [2014] 4 mlj 12 49 chapter ii is titled fundamental objectives and directive principles of state policy from sections 13 – 24 50 see the preamble of the cfrn, 1999 51 it was made during the military regime of general abdulsalami abubakar on 5th may, 1999 52 o m atoyebi, san, an examination of chapter 2 of the cfrn, 1999, an article published online 23rd july, 2023, accessed 20 august, 2024 https://en.wikipedia/ ikpeze & okoro: constitutional supremacy in nigeria: an overview 94 | p a g e image of mere toothless bulldog. the non-justiciable nature of chapter ii means that the fundamental objectives do not provide a strong legal basis for direct enforcement. the purport is that government’s compliance with these principles depends on political will and the accountability of elected officials rather than legal mandates.53 however, for every general rule, there is an exception. the exception clause in section 6 (6) (c) thus: ‘…except as otherwise provided by this constitution…’ enables the national assembly to enact specific legislations that gives legal backing to any of the directive principles and any such legislation shall become justiciable.54 in federal republic of nigeria v aneche,55 justice niki tobi observed: section 6 (6) (c) of the constitution is neither total nor sacrosanct as the subsection provide a leeway by the use of the words ‘except as otherwise provided by this constitution’. this means that if the constitution otherwise provides in another section, which makes a section or sections of chapter ii justiciable, it will be so interpreted by the courts. it means that where a law is passed to implement a particular directive principle, individuals can challenge the government’s compliance with that law in court.56 this exceptive principle also seemingly applies in the field of enforcement of the fundamental rights provided in chapter iv. thus, where the implementation of the provisions of chapter ii results in the violation of chapter iv, the courts tend to exercise jurisdiction over chapter ii. thus, the inevitable and practical implication (though unintended) of this is to render chapter ii justiciable where the issues involve a breach or violation of chapter iv.57 in a. g. ondo state v a. g. federation,58 the supreme court held, inter alia, that ‘courts cannot enforce any of the provisions of chapter ii of the constitution except the national assembly has enacted specific laws for their enforcement’. de jure sovereignty and de facto sovereignty it has been suggested that generally the power of the people can have no limits.59 however, nwabueze60 argued that the assertion is true only in a de facto sense but not in a de jure sense where the people are bound by the constitution once adopted and it binds the people and operates as de jure limitation on their power. however, this does not take away their de facto power to put an end to the de jure limitation by way of a revolution or extra legal means.61 in view of the limitations of the law as an instrument of social change, the justification of a revolution can plausibly and objectively be founded in the face of a failure of the government in the administration of the constitution to meet their aggregate will and their perception of social justice and social progress.62 there is a division among scholars who posit that sovereignty originates from the people. the division centers on the argument whether the people transfer their sovereignty to the sovereign or whether they retain their sovereignty. scholars who hold the view that the people have transferred their sovereignty to the government invariably agrees that sovereignty is not divinely acquired. it means that sovereignty originates from the people but the only area of discord being whether the people after electing a government retain their sovereignty or not. if it is then agreed that sovereignty originates from the people, identification must be made of how the people pass or confer that sovereignty to the government. in other words, is any overt act required to show that the people have indeed taken this all-important step or is it to be assumed in some or all cases? if it is agreed that sovereignty originates from the people, what is the purpose for the conferment by them of sovereignty on the government? if the purpose fails or if the government becomes destructive of them, do the people have any right to intervene or are they constrained in that regard by the fact they have allegedly transferred their sovereignty to the government? the answers to these and more are to be found in an examination and proper appreciation of the notions or concepts of ‘popular sovereignty’ and ‘consent of the governed’. popular sovereignty or the sovereignty of the people is the principle that the legitimacy of the state or government is created and sustained by the will or consent of its people, who are the source of all political power and 53 e okon, the environmental perspective in the 1999 nigerian constitution, environmental law review (2003) 5.4, pp. 256278 cited by o m atoyebi, san, an examination of chapter 2 of the cfrn, 1999, op. cit. 54 federal republic of nigeria v aneche [2004] 1 scm 36 at 78 55 ibid 56 see item 60 (a) of the second schedule cfrn, 1999; a. g. ondo state v a. g. federation [2002] 9 nwlr (pt. 772) 222; olafisoye v federal republic of nigeria [2005] 51 wrn 62 57 anthony olubunmi okojie v attorney general lagos state [1981] 1 nclr 218 58 [2002] 9 nwlr (pt. 772) 222 59 c h mcllwain, constitutionalism and the changing world, (ithaca, new york, 1939), p. 29 60 b o nwabueze, ideas and facts in constitution making (ibadan: spectrum books, 1993), p. 29 cited in o e nwebo critical constitutional issues in nigeria, op. cit. p. 62 61 ss. 1 (2) and 14 (1) cfrn, 1999 62 o e nwebo, op. cit., 62 african customary and religious law review (acarelar) 5 (2024) 95 | p a g e legitimacy. it is closely associated with republicanism63 and the social contract theory or philosophers.64. the doctrine posits that sovereign power is vested in the people and that those chosen to govern, as trustees of such power, must exercise it in conformity with the general will. benjamin franklin65 expressed the concept thus: ‘in free governments, the rulers are the servants and the people their superiors and sovereigns.’ after all, as warped as section 14 (1) and (2) (a) of the cfrn, 1999 is, it still provides that nigeria shall be a state governed on the principles of democracy and social justice and concedes sovereignty to the people. the question that arises is whether the people in the exercise of their sovereign powers or rights, can by popular choice overthrow the constitution or can the makers of the constitution unmake the constitution at will outside the means provided by the constitution? can the people take the laws into their hands in order to effect a social or constitutional change otherwise than in a manner specifically provided by the constitution? this question becomes pertinent in view of section 1 (1) and (2) of the cfrn, 1999. in answering this question, it can be argued with simplistic logic that since the constitution is a product of the people by virtue of their repository and sovereign power, they can unmake the constitution at will outside the contemplated provisions of the constitution. this position can be supported by the proposition that the law is made for the people and not the people for the law and by extension that the law as made by the people is for their protection and welfare and not to be used as instrument of their oppression or tyranny which incites revolt of the people against it. after all, the people are not obliged to owe obedience or allegiance to a legal system that has lost its legitimacy and has failed to meet their collective will, aspirations, concerns and failed to protect them. accordingly, the supremacy of the constitution is itself subject to the provisions of the constitution and the people’s right guaranteed therein which includes the right to good governance. section 1 (1) and (2) of the cfrn, 1999, emphasizes its supremacy and it outlaws any form of change or control of government otherwise than as provided. when juxtaposed with section 14 (1) and (2) of the cfrn, 1999, it become clears that section 14 which vests sovereign powers in the people is not justiciable but section 1 is justiciable in the event of a breach. in view of this, the people’s sovereignty cannot override the supremacy of the constitution. however, this is where this legal or de jure submission ends. where the government make constitutional change impossible, they make unconstitutional change inevitable by the repository sovereign power of the people.66 for the law to be meaningful, it must represent the aggregate will and social purpose of the people and be equally administered to serve the people otherwise it is regarded as having lost its social purpose.67 a constitution that will endure must not depart too far from the volksgeist (spirit of the people). it cannot be a sanctuary or a safe haven for the people entrusted with the collective will of the people and who themselves are subject to the constitution while they violate and breach it by using it as an instrument to work oppression on the people or the governed. in such a situation, their legitimacy is lost and the people are not obliged to obey the command of the state sovereign for this will enable maintaining the working of the oppression against the people. therefore, the people would be at least morally justified to demand for a change and in fact overthrow the constitution if necessary to bring an end to ceaseless oppression. the people as the repository and source of all power can in the exercise of their power in a de facto sense, resort to extra legal means to overthrow an oppressive regime.68 it is admitted though that the right of revolution is not legal in law, but international law recognizes it as a principle of law that a successful revolution begets its own legality69 and this takes care of the legitimacy issues that arise from a revolutionary change of government. a successful revolution is an internationally recognized method of changing a constitution or a government as is in itself is a law creating fact and the 63 republicanism is the political belief that the best form of government is one in which citizens choose their representatives and leaders through free elections. <https://www.vocabulary.com> accessed 4 september, 2024 64 thomas hobbes, john locke and jean-jacques rousseau 65 benjamin franklin (2003) the political thought of benjamin franklin, ed. ralph ketchum hackett publishing, p. 398 66 ibid, pp. 60 61 67 there are agitations for a new constitution or holistic amendment of the cfrn, 1999 by various religious, ethnic and sociocultural groups such as national christian elders forum, ohaneze ndigbo, middle belt forum, arewa consultative forum and the pan niger delta forum because the cfrn, 1999 undermines true federalism; concentration of power and resources at the centre et al. the calls for change are aimed at addressing structural imbalances and ensure equity, fairness and justice. <https://wazam.net/news/2965812> accessed 2 september, 2024; the national christian elders forum (ncef) aligning itself with the patriots group, which held a conference on march 18, 2024 in kaduna state, also called for a new nigerian constitution. the group stated that national assembly’s repeated amendments to the existing constitution should cease. instead, legislators should begin crafting a new constitution for nigeria noting that after five alterations with no substantial positive change, the assembly should start adopting the 2014 national conference report and its draft constitution. state-ofthe-nation: adopt 2014 confab report. <https://www.vanguardngr.com/2024/04/state-of-the-nation-adopt-2014-confabreport-gani-lekwot-wigwe-tell-tinubu> vanguard online newspaper of 11th april, 2024, accessed 2 september, 2024 68 an example of the exercise of this sovereign power of the people in a de facto is the popular uprising that forced the prime minister of bangladesh to leave office and flee into exile in august, 2024 and her government consequently collapsed. similarly in 1986, the people of philippines in the people power revolution or the february revolution led to the departure of ferdinand marcos and ended his 20 years dictatorship and restoration of democracy. the non-violent revolution was a sustained protest between 22nd 25th february, 1986 against regime violence and electoral fraud. 69 o e nwebo, critical constitutional issues in nigeria, op. cit., p. 66 https://wazam.net/news/2965812 ikpeze & okoro: constitutional supremacy in nigeria: an overview 96 | p a g e overthrown constitution stands either annulled or assimilated into the new constitution either in whole or in part.70 the new constitution becomes the grundnorm (fundamental law). the above extra-legal means of changing and overthrowing a constitution finds realistic and practical support in the popular arab spring.71 in the final analysis, when the society becomes dysfunctional, the need for change arises as a matter of necessity and indeed as of right even by revolutionary means. such action becomes justifiable to stop the ceaseless subversion of the aggregate will of the people and save the society from collapse and advance the social purpose which represents the aggregate will of the people. anything short would amount to the people aiding and abetting their destruction which is against human nature and instinct of preservation. in this light, it is argued that the supremacy of the constitution should be interpreted subject to the overall aspiration of the people and their perception and conception of social justice objectively determined. hence, sovereignty belongs to the people who in the exercise of their sovereign powers can be justified, at least morally, in changing their government even by a revolution if it becomes necessary and compelling72 to preserve their existence73 and right to good governance. hence the saying ‘he who gives can also take’.74 8. conclusion and recommendations the constitution is the yardstick by which every other law and conduct are tested for constitutionality and upheld on the one hand and declared unconstitutional and null and void and of no effect, on the other hand. it is a requisite of constitutional supremacy that all parliamentary and executive actions must always be based on the constitution and through this way the constitution maintains its unassailable supremacy. the parliament should have a judicial or legal committee specially created and statutorily charged with the mandate of scrutinizing all proposed bills to ensure that they do not contain provisions that violate the constitution or inconsistent with same before they introduced for debate or are passed into law. amending the constitution to have a clause that will automatically render any law that breaches it or is inconsistent with it as unconstitutional, null and void upon proof of same without necessarily and always resorting to a court action and consequent judicial pronouncement. the executive and legislative arms of the government and their respective personnel should be regularly schooled and enlightened on the provisions of the constitution such that it is akin to them taking judicial notice of such provisions. there should be created a constitutional court charged with the duty of subjecting to a constitutional test all legislations which has passed all the three stages of reading, before being passed by the parliament and assented to prior to come into operation. 70 ibid 71 the arab spring or the first arab spring was a series of anti-government protests, uprisings and armed rebellions that spread across much of the arab world, in the middle east and north africa in the early 2010s. it began in tunisia in december, 2010 in response to corruption and economic stagnation and also saw action in egypt. in both countries, the authoritarian regimes were toppled. president zine al-abidine ben ali of tunisia stepped down. it was known as the jasmine revolution in tunisia. in egypt, president hosni mubarak was forced to leave office. 72 the doctrine of necessity supports this proposition where the law fails in or can no longer serve its social purpose. 73 the right and instinct of self-preservation which is the highest in man and even animals cannot be regulated or limited on the altar of supremacy of the constitution and laid bare for violation by the ruling class using the constitution as a shield or over smokescreen. 74 in this case, it is the people; o e nwebo, critical constitutional issues in nigeria, op. cit., p. 69 ibe & onyekachi: proving substantial non-compliance in election petition under the nigerian electoral act: a mirage or a reality? page | 64 proving substantial non-compliance in election petition under the nigerian electoral act: a mirage or a reality?* abstract elections petitions in nigeria, particularly those challenging the outcome of elections on the ground of substantial non-compliance to the provisions of the electoral act fail more than they succeed. while it has become almost impossible to prove the said ground of substantial non-compliance, there is some ease and possibility in proving the other four grounds provided for when they are raised in an election petition. this problem seems traceable to the electoral act regime and the requirement of proof for allegation of substantial non-compliance in election cases. this paper examined the difficulty in proving the ground of substantial non-compliance as provided in section 138(1)(b) and 139 of the electoral act 2010(as amended). in doing so, it examined further the burden of proof placed on the petitioner where he attempts to prove allegations of offences that constituted the non-compliances in an election petition. the methodology adopted is doctrinal and analysis of the relevant provisions of the act and literature on the subject. in the end, the researcher recommends the deletion of section 139 of the electoral act 2010 (as amended) and suggests other necessary amendments to the act, which if adopted, will enable a petitioner succeed in proving the ground of substantial non-compliance. keywords: election petition, substantial non-compliance, electoral act, election tribunal. 1. introduction nigeria is heterogeneous and populous. it has about 374 ethnic formations.1 on may 19, 2021, the population of nigeria was estimated at 210,832,540 based on the latest united nations estimates.2 also, nigeria is peculiarly plural by vast number of different social groups and by vast number of different religious and traditional occupations. the deep and fundamental differences in attitude, character and culture also added to her peculiarity. most social and political groups like nigeria often times adopt election as a means of selecting their leaders and policy makers. from the 17th century, elections have been the usual mechanism by which modern representative democracy has operated.3 today, election is the corner stone of democracy.4 elections, therefore, are central institutions of democratic representative governments. election in most democratic states is usually conducted by an institution set up by law. for nigeria, the body is currently the independent national electoral commission. rules and regulations are normally put in place for the conduct of free and fair elections. as at date, the electoral act 2010 (as amended) is the primary legislation for the conduct of elections in nigeria. after the conduct of elections, in line with the dictates of the act5 and a winner emerges, a candidate in the election or his political party not satisfied with the outcome can challenge the result of the election.6 this can be done by presenting a petition to the relevant election tribunal created under the law.7 in presenting a petition, the petitioner, can only rely on any or a combination of the five grounds of petition provide for. the five grounds on which an election may be questioned or set aside are: 1. that the candidate declared to be the winner of an election is not qualified, at the time of the election, to contest the election. 2. that the election was invalid by reason of corrupt practices of non-compliance with the provisions of the electoral act *by chukwuemeka e. ibe, phd, llm, bl, llb, professor of law, faculty of law, nnamdi azikiwe university, awka anambra state nigeria. email:emmaibe2020@gmail.com; phone number: 07031105599; 07034029929; and *uchechukwu humphrey onyekachi, llb, bl, llm candidate, faculty of law, nnamdi azikiwe university, awka, anambra state, nigeria. email: onyekachiuchechukwu@gmail.com. phone number +2348060008948 1i aumezulike, ‘an overview of communal conflicts in nigeria: our skeptical view and suggestions’ (2015) nbj vol.10, p 15. 2‘nigerian population 2019-worldmeters’ www.worldometers.info/world-population/nigeria-populationaccessed on 19thmay, 2021. 3‘election political science,’ britannica online. www.britannica.com/topic/election-political-science accessed on 5 september 2016. 4t osipitan, problems of proof under the electoral act 2002, judicial excellence, essays in honour of hon. justice anthony iguh jsc con, (enugu: snaap press ltd enugu, 2004) p 289-304. 5 act means the electoral act 2010 (as amended) 6 section 137 of the electoral act 2010 (as amended) 7 section 133 of the electoral act and section 285 of the 1999 constitution of the federal republic of nigeria. mailto:emmaibe2020@gmail.com mailto:onyekachiuchechukwu@gmail.com http://www.worldometers.info/world-population/nigeria-population http://www.britannica.com/topic/election-political-science ijolacle 2 (2021) page | 65 3. that the respondent was not duly elected by the majority of lawful votes cast at the elections or 4. that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election. 5. that the person whose election is questioned had submitted to the commission affidavit containing false information of a fundamental nature in aid of his qualification for the election.8 amongst these five grounds upon which an election petition can be challenged, ground two that is (section 138(1)(b)), are resorted to more often than the other grounds. most times, in the conduct of elections, the provisions of the electoral act are breached, giving rise to these complaints. as a result, majority of election petitions presented to the tribunal are often on the ground that there was noncompliance with the provision of the act in the conduct of the election. on the other hand, ground one above rarely occurs as a post-election dispute. this is so because grounds one and five are both preelection and post-election disputes. they can occur and be challenged prior to the election, just as they can be raised after the election. in most cases, however, other candidates in the election would have raised those grounds in a pre-election suit prior to the elections and a determination on the same would have been made thereby aborting its occurrence as a post-election dispute. also, grounds three and four rarely occur as post-election dispute, because the electoral body after computing the majority of lawful votes scored in an election would have arrived at a correct determination of who scored majority of lawful votes. it is not the practice of the electoral body (inec) to exclude the candidate of a political party whose name had been submitted to the commission prior to the elections. after the names of candidate of political parties have been submitted to inec and published, inec would have ample time to capture all the candidates for the election. therefore, it rarely occurs that a lawfully nominated candidate would be excluded from the election. this leaves us with ground two as the ground that often arises for determination in an election tribunal. 2.0 substantial non-compliance by virtue of section 138(1) (b), an election can be invalidated by reason of corrupt practices or noncompliance with the provisions of the act. even though the act provided these as a ground upon which an election can be nullified, establishing/proving the said ground simpliciter cannot result in the setting aside of an election because section 139(1) of the act has further qualified ground 138 (1) (b) and made it more difficult to establish. section 139 (1) of the act provides thus: an election shall not be liable to be invalidated by reason of non-compliance with the provisions of this act if it appears to the election tribunal or court that the election was conducted substantially in accordance with the principles of this act and that the noncompliance did not affect substantially the result of the election. section 139(1) enunciated the principle of substantial non-compliance. it introduced a qualification for ground 138(1) (b). no other ground as shown in section 138(1) (a-e) was so qualified. what section 139(1) of the act prescribes is that after establishing that there were non-compliances in an election, the petitioner must go further to satisfy two distinct requirements. these are that the election was not conducted substantially in accordance with the principles of the act and that the noncompliance affected the result of the election substantially. in pdp v. inec & ors9 the apex court restated this position when it held: by section 138(1) (b) of the electoral act, 2010 (as amended), an election may be questioned on the ground that the election was invalid by reason of corrupt practices or non-compliance with the provisions of the act. however, by section 139(1) of the same act an election shall not be liable to be invalidated by reason of non-compliance with the provisions of the act if it appears to the election tribunal or court that the election was conducted substantially in accordance with the principles of the act and that the non-compliance did not affect substantially the result of the election. the two provisions i.e. sections 138(1)(b) and 139(1) of the electoral act, from the way they are couched, have placed a heavy burden of proof on any petitioner seeking to challenge the result of an election on the ground that the election did not comply with the 8 section 138(1a-e) electoral act 9 (2014) lpelr-23808(sc) ibe & onyekachi: proving substantial non-compliance in election petition under the nigerian electoral act: a mirage or a reality? page | 66 provisions or principles of the electoral act. this is so because, apart from showing or proving that it did not comply with the provisions of the act, such a petitioner must prove to the tribunal or court that the election was not conducted substantially in accordance with the principles of the act and that the non-compliance substantially affected the result of the election.10 before this, niki tobi in basheer v same & ors11 fell to the error of thinking that the two limbs of the conditions in section 139(1) should be read disjunctively and that an election may be invalidated if any of the limbs is proved. but he was quick to return on the subject and departed from his earlier position for the reason that he reached that decision per incuriam.12 we agree that the two conditions must be satisfied before an election can be invalidated. this even makes the matter worse confounded. we also submit that non-compliance with the provisions of the act must not necessarily mean the commission of corrupt practices or electoral offence. from the provision of section 138(1) (b), the commission of corrupt practice as a ground for election petition is distinct from non-compliance with the act. the use of the word ‘or’ connotes disjunctive preposition. 3. evidential burden in proving substantial non-compliance for varied offences even though, some non-compliance will not imply the commission of a criminal offence, a majority of non-compliances committed during an election connotes the commission of a criminal offence. of course, where criminal allegations are made by the petitioner as constituting the non-compliance in the election, the burden of proving those allegations rests squarely on the petitioner and he must prove same beyond reasonable doubt. this principle was enunciated in of nwobodo v onoh.13a corollary to that principle is that where the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.14 the substantive provisions are expatiated anon. falsification of result where a petitioner alleges that the result of an election was falsified and that the falsification has substantially affected the result of the election, he would be required to satisfy the requirement of proof beyond reasonable doubt as falsification of result constitutes a criminal act. in eboh v ogujiofor, it was held: ‘the allegation of incident of fraudulent acts, falsifications, mutilations and cancellation of election result is criminal in nature of which the evidence required in proof of such allegations must be clear and unequivocal’.15 moreover, the petitioner in order to establish or prove an allegation of falsification of election result has a duty to produce and tender at the trial. at least two sets of results, one of which could be taken as genuine and the other stigmatized as held in etuk v isemin16; sabiya v tukur &ors17; wali v bafarawa18; awuse v odili19; ojo v esohi&ors20seikegba v penawou&ors.21 this is a big burden on the petitioner. the petitioner does not keep custody of the election results. inec does and it is no news that inec as a respondent in a petition often colludes with the winner so as to justify the outcome of the polls which they conducted. even when all the electoral materials are subpoenaed, the petitioner would not be able to establish this requirement as the materials are often already tampered with in favour of the winner. 10 per john inyang okoro, j.s.c (p. 51, paras. a-g) 11basheer v. same & ors (1992) lpelr-12762(ca) 12see alhaji yusuf i. na-bature v alhaji isa aliyu mahuta & ors (1992) 9nwlr (pt. 263) 85 at 108 13(1984) all nlr 1. see also omisore & anor v. aregbesola &ors (2015) lpelr-25820(ca) 14 section 135(1) of the evidence act 15(1999) 3 nwlr (pt. 595) 419 @ 423 424 16(1994) 4 nwlr (pt 234) 402 at 414 17(1983) 11 sc 109 18(2005) (pt 249) 1863 19(2004) all fwlr (pt. 261) 248; (2004) 8 nwlr (pt. 876) 481 20(1999) 5 nwlr (pt. 603) 444 at 452 453 21(1999) 9 nwlr (pt.618) pg.354 ijolacle 2 (2021) page | 67 disenfranchisement disenfranchisement can be proved by the tendering of voter's registers, voters’ cards and of course by the verbal or oral testimony of those who claim to have been disenfranchised. in chime v ezea, the court held thus: everyone deprived of voting must come and show his voters card, express his constitutional right to pick a candidate of his choice. the comprehensive voters register must be tendered, authentic evidence of what happened at each polling booth must be given and this will not admit of any generalisation of evidence for local government or constituency as it will not serve the purpose.22 this same is true of audu v inec & ors23 the above requirement is an onerous task considering that the number of persons disenfranchised may run into hundreds of thousands and or millions and may be scattered at different locations. also, considering the fact that an election petition must be presented within 21 days after the election the procedural requirement of frontloading depositions of witnesses and documents to be relied on poses a difficult challenge for the petitioner. furthermore, the fact that the petition must be concluded within a stipulated time makes it almost impossible for the petitioner to call all the witnesses that may be required to prove disenfranchisement. where the number of persons that claim disenfranchised is less than the difference between the winner and the petitioner, the tribunal will again resort to the magic wand of substantial non-compliance to hold that it would not have affected the outcome of the results.24 for the petitioner to succeed, he will have to prove that the disenfranchisement was substantial and such infringement or non-compliance affected the result of the election. as usual, the petitioner alleging non-compliance has the burden to establish, after he has shown that there was a substantial non-compliance, that it also affected the result of the election. the respondents have no burden of proof on them. multiple thumb printing/voting multiple thump printing of ballot papers is an electoral offence. under the electoral regime, a person is entitled to one vote and so where a person thump prints multiple ballot papers and or vote more than once, the offence is constituted. this is provided in section 53(1) of the act. a petitioner in substantiating non-compliance with the electoral act may plead facts to the effect that the petitioner or his agents engaged in the offence of multiple thump printing/voting. where this is the case, he would need to prove such offence beyond reasonable doubt. in addition to the requirement of proof beyondreasonable doubt, there are the additional requirements that there must be established a nexus between the perpetrators and the candidate who was returned. what is more, it must, also, be shown that the act adversely affected the conduct of the election and substantially affected the result of the election25. dealing with the offence, the court held in hon ode frank igbe& anor. v dr. joseph adoga ona & ors that an expert evidence showing that the finger prints appearing on the ballot papers belong to one and same person is essential. it also established that it must also be proved that the party, whose election is challenged, aided or abetted the multiple voting/thumb-printing. thuggery generally, election thuggery is the attempt to dictate the outcome of the election with the use of force and intimidation. it is the act of using violence and intimidation to prevent voters for voting a particular candidate or threatening them to vote a particular candidate.26 thuggery being a criminal act will require proof beyond reasonable doubt and before the result can be impugned. the petitioner must establish that the winner of the polls carried out the thuggery or establish a nexus between him and the perpetrators of the act.27as dictated by section 139(1) of the electoral act, the petitioner must establish that the thuggery has affected the result substantially and that thereby the provisions of the act have not been complied with substantially. 22(2009) 2 nwlr (pt. 1125) 263 at 357 paras. e-f 23(2010) 13 nwlr (pt. 1212) 456 at 523 24pdp & anor. v inec & ors. (2012) lpelr-8409(ca) 25oyegun v igbinedion (1992) 3 nwlr (pt. 226) 747; (1992) 2 lrecn 1,747, 759-760 26 section 131 of the act 27ogu v ekweremadu (2006) 1 nwlr (pt. 961) 255 at 281 282 (ca) ibe & onyekachi: proving substantial non-compliance in election petition under the nigerian electoral act: a mirage or a reality? page | 68 stuffing of ballot boxes another known electoral offence which can be particulars of substantial non-compliance is stuffing of ballot box with already unlawfully thumb printed ballot papers. ordinarily, a voter will only be issued with one ballot paper with which he will vote by thumb printing and put in the ballot box. however, the offence occurs when the respondent or his agent through intimidation or other unlawful means obtains many ballot papers, thumb prints and stuffs the box with these. a petitioner who relies on this offence to seek for nullification of the result will be required to tender and open before the court the ballot boxes he alleges to have been stuffed, for the contents to be seen by everyone present at the proceeding before the tribunal. this pre requisite was introduced in the cases of haruna v modibbo28; iniama v akpabio29 and a.n.p.p. v usman30, pdp v. inec &ors.31 in other words, the petitioner has to obtain custody of the boxes and produce them in court. this is quite an onerous burden to discharge. in the first place, after election, inec retains all the materials and where they are colluding with the winner of the polls, they would have covered up the illegality before the matter gets to the tribunal. perhaps, if immediately the result is declared, all the materials used in the election are deposited at the court’s registry for safe keeping; it would be easier for the petitioner during hearing to make use of these in discharging this burden. what is more, to prove the respondent’s guilt, the petitioner will be expected to discharge the burden beyond reasonable doubt.32 we now consider procedural drawbacks against the petitioner. 4. procedural hitches in proving substantial non-compliances as has been shown above, the petitioner has onerous burden of discharging the burden of proof in any criminal allegation occasioning the non-compliance. apart from this evidential burden on the petitioner, there are certain provisions of the rule of practice of an election tribunal that further compound the difficulty of proving substantial non-compliance by the petitioner. these procedural hitches are contained in the 1st schedule to the electoral act (the rule of procedure for election tribunal). some of these procedural hitches targeted against the petitioner alone are discussed hereunder. the deposit of security for cost one harsh requirement introduced under the electoral act regime and procedure in election petitions is the requirement of a petitioner depositing money as security for cost. this provision already suggests that procedure of enforcement of election petition is anti the petitioner by confronting him with deposit of money for payment of cost not yet accrued and which no one knew if it will ever accrue. paragraph 2 of the first schedule brought out the stark realities of this stringent provision. it provides: 2(1) at the time of presenting an election petition, the petitioner shall give security for all cost which may become payable by him to a witness summoned on his behalf or to a respondent. (2) the security shall be of such amount not less than n 5,000.00 as the tribunal or court may order and shall be given by depositing the amount with the tribunal or court. (1) ……. (2) if no security is given as required by this paragraph, there shall be no further proceedings on the election petition.’ an election petition is said to be presented under the act, when the petitioner or his solicitor gives security for cost and pays all necessary fees as required in paragraph 2(1) and 3(4) of the first schedule to the act. non-compliance with this provision is fatal to the petition.33 the practice of deposit of cost is rarely practiced in other areas of law. this mandatory introduction under the electoral act has worsened the problem of the petitioner. what is more saddening is that the first schedule did not prescribe with certainty the amount to be deposited in an election petition but has left the court/secretary to impose any amount as he/she may desire but not less than n5,000.00. this is not to be encouraged as an impecunious petitioner may by this provision be prevented from presenting his petition. for instance, in enugu state after the 2019 general elections, the petition of uchenna nwegbo against the 28(2004) 16 nwlr (pt. 900) p.487 29(2008) 17 nwlr (pt. 1116) pg. 225 30(2008) 12 nwlr (pt.1100) p. 1 31(2011) lpelr-8831 (ca) 32uzu & anor v ogbu & ors. (2012) lpelr-9775(ca) 33eminue v nkereuwen & ors (1966) 4 nscc 51 at 54 ijolacle 2 (2021) page | 69 return of sen dr. chimaroke nnamani in respect of enugu east senatorial district could not be presented as the said petitioner could not pay the n 600,000.00 (six hundred thousand naira) only being charged as security for cost. frontloading paragraph 4 (5) of the first schedule to the act introduced frontloading system under the electoral act regime. the paragraph provides: (5) the election petition shall be accompanied by (a) a list of the witnesses that the petitioner intends to call in proof of the petition; (b) written statements on oath of the witnesses; and (c) copies or list of every document to be relied on at the hearing of the petition. the provision of sub paragraph 6 went ahead to provide the penalty for non-compliance with the above requirement of frontloading. it provides that a petition which fails to comply with sub paragraph (5) of this paragraph shall not be accepted for filing by the secretary. that is to say if the petitioner did not comply with the provision requiring him to frontload the witness statement on oath as well as copies of every document he will rely on, his petition will not be accepted for filing. the gross effect of the provision is that where the petition did not obtain all his documents and frontload same within 21 days or failed to list them, he cannot bring it later and his petition would not be accepted for filing. this has increased the nightmare of the petitioner. requiring a petitioner to assemble all his witnesses and do their deposition within 21 days is to say the least a difficult task. where a petitioner wants to prove widespread irregularities, he is expected to have at least a witness from each polling unit to come and testify to that fact. in an election dealing with a house of assembly seat, there may well be over 200 polling units. for this, the petitioner would have to source about 200 witnesses and prepare their written depositions within 21 days and as well obtain and frontload the necessary documents within 21 days. additional to this is that by the provision of paragraph 14 (2)(i) of the first schedule to the electoral act, any amendment that seeks to introduce any of the requirement under paragraph 4(1) of the first schedule cannot be introduced or granted. to that extent, amendment is largely limited if not barred entirely. the import of the provision is that, the parties interested in an election petition, the right of the petitioner to present a petition, the winner of the election, the facts of the election petition, the scores of the candidate, the holding of the election, the ground of the petition, the relief sought by the petitioner cannot be amended or introduced. it means that any genuine mistake of counsel in these arears while filing the petition within the short period cannot be forgiven or corrected. this provision is very unfair on the petitioner and compounds his burden. filing pre-trial forms: subparagraph 1 of paragraph 18 provides that: ‘within 7 days after the filing and service of the petitioner's reply on the respondent or 7 days after the filing and service of the respondent's reply as the case may be, the petitioner shall apply for the issuance of pre-hearing notice as in form tf007’. one surprising feature in this provision is why the duty to apply for form tf 007 is imposed on the petitioner. just as the secretary effects services and gives notices, would it not be more appropriate and meet the ends of justice if the secretary were to issue this pre-hearing notice form to parties without an application from the petitioner. this provision is one of such provisions made without any legal purpose except to constitute another procedural trap for the petitioner with the intent to have him caught up in the legal web. the schedule did not just leave that duty on the petitioner without prescribing penalty for failure. paragraph 18(3) (4) and (5) provides thus: ‘(3) …… (4) where the petitioner and the respondent fail to bring an application under this paragraph, the tribunal or court shall dismiss the petition as abandoned petition and no application for extension of time to take that step shall be filed or entertained. (5) dismissal of a petition pursuant to subparagraphs (3) and (4) of this paragraph is final, and the tribunal or court shall be functus officio.’ therefore, where the petitioner fails to apply for issuance of form tf007, the respondent may apply for the said form or apply by motion that the petition be dismissed. in practice, the respondent would ibe & onyekachi: proving substantial non-compliance in election petition under the nigerian electoral act: a mirage or a reality? page | 70 not apply for the issuance of form tf007 but are most often inclined to apply for the dismissal of the petition. the subparagraph goes further to provide that the tribunal shall upon such respondent’s motion dismiss the petition as abandoned petition and the dismissal shall be final. what is very striking is that by subparagraph 4, an extension of time is not tolerated. the real essence of pre-hearing session is to avoid delays. however, this noble objective seems to be defeated by the albatross inherent in the way and manner applications for pre-hearing session are done. the above provision though made to aid the expeditious disposal of election petitions, has rather become counterproductive and self-defeating34. there is nothing progressive about the provision of paragraph 18 of the first schedule. more succinctly, the provision does not ensure for speedy hearing of election petition but rather helps in speedy dismissal of a petition without substantive determination of the election petition. such a provision in a country that needs to improve her electoral process should not be encouraged. until the tribunals become more liberal in election petitions, nigerian electoral body will not sit up, and political fraud and irregularity will not cease to feature. the country will continue to be led by people without credibility. extension of time a detailed study of the provisions of the first schedule will reveal that the electoral petition procedure is anti-extension of time for the petitioner. one of the fall outs of human nature is that a party may not be able to comply with the time requirements for every step in the litigation process. the court’s cardinal foundation is to give parties a listening ear. that explains why there is an in-built mechanism in litigation process that accommodates a request for extension of time. it is almost general in all species of litigation except election petitions. perhaps this is to further make it difficult for the petitioner to prove any ground of his petition thereby punishing him for any delay and for non-performance of any of the roles imposed on him under the act, without regards to any extenuating circumstances. in the first place, it has been constitutionally prescribed that the petitioner must present his petition within 21 days. time for presentation of petition cannot be extended. in fact, the time limit for presenting election petition is in the nature of statute of limitation and its intendment is to oust the jurisdiction of the tribunal once the period prescribed is past. it cannot be extended as it is limited35. this is not healthy; more time should be granted the petitioner. in canada, a jurisdiction where election petition is treated summarily, ie where there is no need of frontloading, the petitioner is allowed 30 days to file his petition.36 similarly, in kenya, a fellow african country, the petitioner is granted 28 days to file his petition.37 these two countries that allow longer time to present a petition both have stronger and more responsive institutions than nigeria in the electoral process. secondly, time cannot be extended for the petitioner for filing his reply. paragraph 16 (2) of the first schedule provides that the time limited by sub paragraph (1) of this paragraph shall not be extended. the said subparagraph 1 provides that; ‘if a person in his reply to the election petition raises new issues of fact in defence of his case which the petition has not dealt with, the petitioner shall be entitled to file in the registry, within five (5) days from receipt of the respondent’s reply, a petitioner’s reply in answer to the new issues of fact.’ by that provision, the petitioner’s time for filing his reply cannot be extended. the effect is that if the petitioner fails to file a reply within 5 days from service, he will be deemed at law to have admitted all the new factual averments made by the respondent. this is grave and can be fatal to the petition. by virtue of paragraph 10 (2), the respondent is allowed a period of 21 days to file his reply. he can as well apply for and be granted extension of time if he fails to file his reply within 21 days. this is unlike the petitioner who cannot obtain extension of time to file petition or extension to file the petitioner’s reply or extension of time to apply for the issuance of pre-trial form. in each case where the petitioner fails to comply with the time granted to him, his petition will face fatal consequences! participation in pre-trial proceedings paragraph 18 (11) (a) is another grave provision under the electoral act. this section provides that where a petitioner fails to attend the pre hearing sessions or fails to obey a scheduling or pre hearing order or is substantially unprepared to participate in the session or fails to participate in good faith, the 34 u c kalu, e o c obidinma & a o anazor, ‘time limitation in election petitions in nigeria: the imperative for further constitutional reforms’ international journal of innovative research & development (december 2016, vol 5 issue 14) p 46, issn 2278-0211 (online). 35lamido v turaki (1999) 4 nwlr (pt.600) 578 36 section 527 of canada elections act 37 section 74 of elections act no 24 of 2011 ijolacle 2 (2021) page | 71 tribunal shall dismiss the petition. this provision decapitates the petition because of any act perceived as indicating lack of seriousness on the part of the petitioner. what constitutes lack of seriousness in the mind of the court pursuant to the provisions ranges from being absent in court, to non-filing of issues for determination, including other inability to meet stipulated conditions. paragraph 18(11) provides thus: ‘if a party or his legal practitioner fails to attend the pre hearing session or obey a scheduling or pre hearing order or is substantially unprepared to participate in the session or fails to participate in good faith, the tribunal or court shall in the case of (a) the petitioner, dismiss the petition; and (b) a respondent, enter judgment against him’ even though, paragraph 18(11) provided that judgment can be entered against the respondent for failure to participate effectively in pre-trial proceedings, the respondent unlike the petitioner, can apply to have the judgment entered against him set aside. paragraph 18(12) provides thus: ‘any judgment given under subparagraph 11 of this paragraph may be set aside upon an application made within 7 days of the judgment (which shall not be extended) with an order as to cost of a sum not less than n20,000’. paragraph 18(12) talks about judgment alone and did not talk about the order of dismissal. in paragraph 18(11), two consequences flow. these are order of dismissal against the petitioner and judgment against the respondent. subparagraph 12 only saves the judgment against the respondent and not the order of dismissal against the petitioner. in other words, where the petition is dismissed pursuant to subparagraph 11, the order of dismissal cannot be set aside by an application made within 7 days in line with sub paragraph 12! this is the harsh reality of the provision of the electoral act. these provisions make life unnecessarily difficult for the petitioner. in solomon v celestine & anor38 the court held that the provision of paragraph 18 (12) of the first schedule to the electoral act dealing with setting aside can only apply in a situation where the respondent has a judgment entered against him under the provision of paragraph 18 (11) (b) and does not apply, to a petition dismissed under paragraph 18 (11) (a) of the first schedule. so, the provision of the act punishes the petitioner for non-participation in pre-trial and gives him no remedy to save his petition unlike the respondent that it provides opportunity to set aside the judgement. 5. conclusion and recommendations from the foregoing, substantiated by the outcome of a lot of election petitions, it is obvious that proving the ground of substantial non-compliance under the electoral act of nigeria is a herculean, if not an impossible task. the combined provisions of section 138(1)(b) and 139(1) have created a high hurdle for petitioners to jump. unfortunately, the existence of this high hurdle is now promoting the current high rate of electoral offences witnessed in the country. since the act by the above stated provisions requires the petitioner to prove that the non-compliance have substantially affected the result of the election and substantially detracted from the provisions of the act, politicians have capitalized on this and they commit serial electoral fraud knowing that the act has made it impossible for the petitioner to establish his case. this has also misled the electoral body into becoming more lackadaisical and nonchalant in regards to complying with the provisions of the law. we have attempted hereinabove to show how it is easier for a camel to pass through the needle’s eye than for a petitioner to prove substantial non-compliance before an election petition tribunal. no matter how high he jumps, he cannot prevail because the hurdle is beyond his reach. therefore, the parameters need be reset and a return visit made on the requirements so as to adjust or reduce the burden. we recommend as follows: (a) deletion of section 139 of the electoral act. this is to bring an end to the problem of proving substantial non-compliance. section 139 of the electoral act can void an election without first examining whether such non-compliance substantially affected the result. we have found that it cannot even be said whether a non-compliance affected the result substantially as some seemingly little noncompliance can have a ripple effect in the entire process and thus snowball into derailing the efficacy of the entire election. deleting section 139 will therefore enthrone some sanity into the system. politicians and political actors will know that it is no more business as usual and will begin to conduct 38(2011) lpelr-9186(ca) ibe & onyekachi: proving substantial non-compliance in election petition under the nigerian electoral act: a mirage or a reality? page | 72 themselves properly during elections thus ensuring integrity in the electoral process. this is what obtains in canada where such anachronistic provision has no room in the electoral law.39 (b) section 285(5) and 285(6) of the 1999 constitution should be amended to extend the time of filing election petition to at least 40 days and also extend the time for hearing of a petition to at least 240 days. these amendments are suggested so as to provide enough time for the petitioner to prove any ground of his petition. (c) paragraph 14 (2)(i) of the first schedule to the electoral act, should be amended to allow the petitioner room to amend any of the requirement of paragraph 4 (1) of the first schedule except the ground of the petition. (d) paragraph 18(4) of the first schedule to electoral act should be amended to mandate the secretary of the tribunal to issue pre-trial forms (form tf 007) and fix a date for filing the answers thereto (form tf008) (e) paragraph 18 (3) & (5) of the first schedule should be deleted entirely. (f) paragraph 18(12) should also be amended to save petitions. the paragraph should provide that an order of dismissal can be set aside just as a judgment against a respondent can be set aside. (g) paragraph 2 of the first schedule should be deleted entirely. (h) paragraph 16(2) and 45(1) of the first schedule should all be amended to allow extension of time within which the petitioner can file the petitioners reply. 39 section 524 of canada elections act s.c 2000 c.9. ikpeze & emejulu: ethnic minorities and their protection: legal and ancillary measures page | 40 ethnic minorities and their protection: legal and ancillary measures abstract ethnic minorities exist in all parts of the world right from the inception of the world. these minorities are often abused and discriminated against which clearly goes against all known legislations. in seeking to find a solution to the conflict usually generated by this, the united nations and other regional agencies work towards designating certain measures to quell these disputes. these measures adopted in the protection of ethnic minorities are worth elucidating. this is because most of the war crimes recorded in the history of mankind stem from ethnic disaffection. this work therefore seeks to explore these measures with a view to finding a lasting solution to incidents of ethnic minorities’ disaffection which in turn works to end internecine warfare and waste of resources and lives within the community. keywords: ethnic minorities, protection, legal and ancillary measures 1. introduction as stated in the abstract, ethnic minorities’ disaffection can lead to a world war whose consequences may be difficult to erase. every act of war worldwide has somehow been traced to the agitations of the ethnic minorities. this was the case in nigeria, bosnia, sudan, amongst other nations. it is also imperative to state that despite these wars, the undercurrent of ethnic minorities’ marginalization continue to reverberate in such countries. this work therefore seeks to explore some of the remedies that may be adopted to change the narrative as relates to ethnic minorities and the consequences of their agitation. 2. relevant measures the measures used to quell these agitations come in varied forms and this work seeks to take them one after the other. they include: integration integration may be described as the process of making persons from a minority group to mix with, interact and blend with members of the larger society. the type of integration meant here would depend on the types of minorities envisaged. the ethnic minorities covered under this head could be put into four broad types.1 the first type refers to immigrants and their children who moved from developing to developed countries.2 this is the archetypical immigrant group on whom most attention in ethnic studies has been paid. the second type refers to ethnic minorities who are indigenous without immigration histories but who occupy a minority status in the national populations. a typical example is in china where such ethnic minorities are largely exempted from the family-planning policy and have thus increased their numbers at a much faster rate than the majority population, though their economic situation remains disadvantageous due to poverty and harsh local conditions. the third type refers to people having a minority status but being not necessarily visible. in the last decade, many individuals had moved between eu (european union) countries and they often face issues of ‘in-betweens ness’, being fully integrated in neither their home nor their destination countries and encountering obstacles of social acceptance, as they are often perceived or treated as a ‘quasi-ethnic other’.3 lastly, the fourth type is not necessarily minority in terms of numbers but, being migrant workers, they are not part of what is called the ‘charter population’ and are treated as minorities.4 an important example is the situation of arabs in qatar, who face constant obstacles of social integration even though they share the same religion or language as the qataris. these differences in minority types pose different challenges in research. this is because theories developed to explain the situation of one type of migrant worker may well not apply to other types or to indigenous minorities. there is yet another aspect of integration which involves ex-combatants. this is called reintegration. reintegration is a civilian process which involves different stages of getting an ex-combatant back into the society and thus the overall success depends on the proper execution of each phase. reintegration involves the absorption of excombatants into the society through gainful training and empowerment. it is geared towards economic by ogugua v. c. ikpeze, phd, professor and dean, faculty of law, nnamdi azikiwe university, awka. email: ovc.ikpeze@unizik.edu.ng; and *stella nkemjika emejulu, phd candidate, faculty of law, nnamdi azikiwe university, awka 1y li and a heath, ‘the socio-economic integration of ethnic minorities’ (2017) social inclusion 5 (1) 1-4. doi:10.17645/si.v 5i1.943 accessed on 7 march, 2019. 2 ibid. 3 l ryan, r sales, m tilki, and b siara, ‘family strategies and transnational migration: recent polish migrants in london’ (2009) 35 (1) journal of ethnic and migration studies, 61-77. 4 a heath, and s cheung, ‘the comparative study of ethnic minority disadvantage’ in a heath & s cheung (eds), unequal chances: ethnic minorities in western labor markets (oxford: oxford university press, 2007) p. 14. african customary and religious law review (acarelar) 5 (2024) page | 41 independence, self-empowerment and giving peaceful and civil roles to ex-combatants in the society.5 it addressed the specific needs of ex-combatants by offering support in terms of skills development, education, professional training, micro credit and assistance to return to peaceful and sustainable livelihoods. it is broader than disarmament and demobilization cutting across economic and social life of the demobilized persons. reintegration goes far beyond ex-combatants to include war veterans, families and communities of ex-combatants and veterans and disabled combatants. it usually takes a number of years to achieve reintegration.6 in nigeria, the federal government has gone a long way in integration and integrating the young ethnic minority activists into the society by producing skill acquisition, vocational trainings for them, sending them overseas for technical education and encouraging multinational corporations located in the niger-delta region to hire them. more still needs to be done. amnesty amnesty is a vindication and pardon from punishment for certain criminal, rebel and insurgent actions committed usually against the state and society. an amnesty is always backed by law and has a specified period of time for the assumed offenders to admit the offence and accept pardon. amnesty guarantees an interregnum of peace, cessation of hostility and a state of unsecured quiet which necessitates a post conflict scenario for peace building.7 transition process after conflict helps to ensure comprehensive changes in terms of structures, institutions, orientations and attitudes. it is very sensitive and involves socio-political engineering, economic recovery and military and security interventions. post conflict economic growth and economic recovery for example reduces substantially the risk of conflict reversion.8 unresolved grievances, poverty, decay of trust, intention and confidence and unfocused leadership are among the factors which can cause relapse to conflict. post conflict reversion is very costly and dreadful. the stages in the management of post conflict transition to peace are sequentially disarmament, demobilization and reintegration (ddr).9 the process of peace building is an all-inclusive process of facilitating and strengthening enduring peace. peace building involves ‘understanding programme designed to address the causes of conflict and the grievances of the past and to promote long term stability and justice’.10 it is an effort to ensure socio-political and economic stability of the society. peace building is proffering durable solution to a conflict ridden society to achieve durable peace. this process of peace building does not only address conflict behaviours but more importantly the underlying context behaviours that gave rise to violence. disarmament is a form of weapons control strategy both at production and circulation. in a post conflict society, the surrender of arms by ex-combatants at designated sites or camps is what indicates an end to the fighting. disarmament is essentially a military operation, designed to manage the instruments of violence (arms and ammunition) such that a secure and stable environment is made possible for post conflict transition and implementation of peace agreements.11 the success of disarmament is determined first by the quantity of arms surrendered in relation to the estimated stockpiles and available arms, secondly by ensuring inaccessibility of arms and arms flow which guarantees no possibility of rearmament. while disarmament controls the physical tools of violence, demobilization controls the human tools of violence.12 the first step of transition from combat and militarized life to civilian life is referred to as demobilization. demobilization involves dismantling and disbandment of non-state fighting forces and paramilitary forces that are usually assembled in camps for a change of life orientation. the transition process is usually managed through pre-discharging and post-discharging orientations which include counseling on non-violent life and life career. disarmament and demobilization are part of a military process but reintegration is a civilian process and the overall success depends on the proper execution of each phase.13 reintegration is a civilian process which involves different states of getting an ex-combatant back into the society and thus the overall success depends on the proper execution of each phase. reintegration involves the absorption of ex-combatants into the society through gainful training and empowerment. it is geared towards economic independence, self-empowerment and giving peaceful and civil roles to ex-combatants in the society.14 5 ec egwu, ‘the amnesty question in post conflict niger delta and peace-building’ (2013) 2 (10) arabian journal of business and management review (oman chapter, 1-12). 6 ibid. 7 su ogu, ‘amnesty as a tool in the negotiation to end insurgency in the niger delta’ (2017) 5 (2) global journal of political science and administration, 1-22. www.eajournals.org accessed on 8 march, 2019. 8 p collier, a hoeffer, and m soderbam, post-conflict risks (oxford: centre for the study of african economics csae wps, 2006). 9 ogbu, art. cit, p. 18. 10 fusger et al, working with conflict, skills and strategies for action (london: zed books ltd, 2006). 11 a gwinyayi, ‘post conflict disarmament, demobilization and reintegration of former combatants in southern africa’ (2007) 8 international studies perspective 1. 12 egwu, art. cit, p. 10. 13 ibid. 14 ibid. http://www.eajournals.org/ ikpeze & emejulu: ethnic minorities and their protection: legal and ancillary measures page | 42 a typical illustration of amnesty programme is the amnesty granted to militants of the conflict in the niger delta region of nigeria. the niger delta conflict started with protests over the environmental impact of the exploration activities of some oil companies and the perceived marginalization of the region by the government in terms of infrastructural development and equitable allocation of resources. this conflict was mismanaged and thus deteriorated to the extent that it became dysfunctional and was eventually hijacked by self serving militants and some criminal elements, who organized themselves into different armed gangs to prosecute insurgency that almost brought the nation to its knees.15 more so, the niger deltans had expressed discontentment at their conditions through several peaceful means including appeals, petitions and litigation. however, the federal government had not adequately shown any sympathy for this affliction. this neglect fuelled their disappointment about their future and consequent upon the state’s inadequate response to their plight, the niger delta youths resorted to violent actions to register their anger. this is what is today referred to as militancy in the region. the federal government of nigeria and the host communities of niger delta have different positional views about the crises actors. the alhaji umaru musa yar’adua led government initiated an ‘amnesty’ programme for the niger delta region in 2007. this policy though it had its fair share of controversies provided a negotiated solution to the problem of armed insurrection in the niger delta and also created a conducive climate for further negotiations and agreements concerning the core issues in the crisis. the amnesty programme, is seen as a negotiation strategy that can be effectively used in the resolution of similar conflicts in nigeria and even across the continent. thus, the amnesty programme is evaluated as a conflict management tool, and a headway in the negotiation process to address the issues of ethnic minorities. notwithstanding the shortcomings or controversies surrounding the policy, the policy adopted a successful negotiation approach to the resolution of the conflict, at least for now, which has provided both time and an enabling environment for the government and all the parties involved to effectively resolve the major issues at the root of the conflict.16 thus, ‘amnesty’ is a peace building and reconciliatory instrument which is a cost effective and proactive communication-based approach to conflict management in africa, especially at a time like this, when the continent can hardly afford the cost of violent confrontations. participation in politics and governance minorities and indigenous peoples in the country remain some of the groups that have suffered most from exclusion in politics and governance. political participation alone may not guarantee inclusion of minorities in the governance of the state; however, it is the necessary first step in the long process towards bringing in the voices of communities and improving their capabilities. ‘encouraging minorities’ political participation in elections is crucial to addressing the issue of political participation and governance. these elections are of great significance since the political institutions that will emerge, namely, the national assembly to wit; the senate and the house of representatives in nigeria are charged with the important roles of making laws for the country and the welfare of its citizens and other inhabitants. the general position usually in many countries is that the majority ethnic groups dominate the political arena while the minorities are relegated to the background. for instance, in kenya where majoritarian democracy is practiced, larger groups in kenya have historically enjoyed a distinct advantage in electoral politics as the main basis for establishing political units is population sizes. consequently, minorities’ political representation in kenya varies widely, with some groups not having a single representative at any level of governance, while others have several.17 this divergence is based largely on skewed electoral boundary demarcations and the extent to which ethnic groups are concentrated within political units. institutions with authority to create boundaries have often done so with the intention of ensuring that some communities become dispersed across various political units, thereby reducing the chances of such minorities of garnering the numbers of votes needed to secure victory in any of their constituencies or wards. record has it that areas inhabited by minorities, notably pastoralists, have experienced a high incidence of violent conflict.18 elections provide an opportunity for political actors to reframe any unresolved questions in identity terms, in order to mobilize or consolidate their communities’ or clans’ votes. it is also known that conflicts erupt during the electoral processes in some countries mostly in the economically emerging countries, these conflicts and acts of violence can have a negative impact on the willingness of citizens to participate in the electoral process.19 while the impact of these 15 ibid. 16 ibid. 17 j cottrel-ghai, y ghai, k sing’ oei and w wanyoike, ‘taking diversity seriously: minorities and political participation in kenya’ (2012) minority rights groups international briefing. 18 j schilling et al ‘raiding pastoral livelihoods: motives and effects of violent conflict in northwestern kenya’ (2012) 2 postoralism: research, policy and practice, 1. 19 for example, the violence experienced by voters, in the just concluded presidential elections in nigeria had an adverse effect on the gubernatorial and state houses of assembly elections, there was reduction in the number of voters who came out to cast their votes. african customary and religious law review (acarelar) 5 (2024) page | 43 conflicts on electoral participation is not yet fully apparent, voter turn-out will no doubt be depressed, and women contestants, in particular, will be discouraged from participating. thus, the government respond to the agitations of the ethnic minorities by promoting participation in politics and governance by the minorities. in nigeria for instance three senators are elected from each of the 36 states to represent the masses at the national assembly while 360 members are elected to the house of representatives. this way all ethnic and minority groups would have been truly represented, or nearly represented. protection and security of territories one may ask the question; why should international human rights law vest members of minority community with right that secure a measure of autonomy from the state in which they are settled? this question can be answered by considering the various commitment to the protection of certain universal attributes of human identity from the exercise of sovereign power. minority protection thus operates on the assumption that religious, cultural, and linguistic affiliations are essential features of what it means to be human. states have a responsibility to protect all people residing in their territory, be they members of majorities or minorities, indigenous people, citizens or non-citizens. this principle lies at the heart of the commitment on the responsibility to protect (r2p) made by all un member states at the 2005 world summit.20 r2p emerged in order to avert atrocity crimes such as genocide and ethnic cleansing which in the past have all-too-clearly demonstrated the dangers of failing to protect people targeted by their fellow citizens or by the state. identity-based tensions have been present in many of the conflicts that have required action by the un security council (unsc) since the end of the cold war, and more often than not, minorities have been the principal victims. an inherent factor in this form of conflict is the natural mismatch between states, as artificial constructs with arbitrary borders, and nation’s broad groupings with social, cultural and linguistic ties. the inter-ethnic relations of the nation transcend the hard boarders of the sovereign state and can challenge its territorial integrity when independence movements pursue self-determination through secession. failing to adequately protect the rights of minority ethnic, religious, cultural and linguistic groups leaves them vulnerable to discriminatory laws and policies, rising grievances can be exploited by violent extremists or instrumentalised by neighbouring states.21 minority protection is clearly of prime concern for the maintenance of international peace and security. national minorities have a right to protect and promote their identity, and it is the obligation of the state in which they live to defend that right. however, neighbouring or nearby states may have strong ethnic, cultural, religious or linguistic links to the minority population, and a legitimate interest in its protection. such ‘kin-states’ may be well placed to offer advice or assistance to improve the protection of related minorities abroad. kin-state may also be directly affected if a state is failing to protect minorities-for example through strong public opinion advocating intervention to protect the kin. the potential constructive role for kin-states in resolving sensitive and volatile minority issues was evident in the successful resolution of a long-running disagreement between italy and austria over the status of the german-speaking minority in the south tyrol region of northern italy. following world war ii, austria pursued its kin interest through bilateral negotiations with un oversight, leading to the eventual implementation of a treaty giving great autonomy to the region.22 international norms affirm the rights of persons belonging to minority groups to establish peaceful contacts across borders with those of a common identity or heritage. but the strengthening of bonds between a kin-state and a neighbouring minority risk creating or exacerbating tensions with their state of residence, resulting in a deterioration of bilateral relations. when the interest of the kin-state extends to cross-border interference and even attempts to take unilateral action on the basis of kinship to protect national minorities living abroad, the prospect of violent conflict can arise. ultimately there are two specific, related fears over-shadowing such tensions: irredentist claims by the kin-state, advocating annexation of another state’s territories; and secessionist claims from the minority itself. the responsibility to protect minorities and their territories is a cardinal one such that where a state is unwilling or unable to fulfill this responsibility, it falls to the international community to take appropriate action to protect threatened populations; with the possibility of coercive measure including intervention. the r2p can be seen as the culmination of an evolution towards sovereignty as responsibility, away from the historical conception of sovereignty as a function of power or control over territory. co-operation with minorities the state can respond to minorities’ agitations by keeping positive relations with the minority groups. there should be co-operation between the government and the ethnic minorities in virtually all matters relating to 20 n turner and n otsuki, ‘the responsibility to protect minorities and the problem of the kin state’ united nations university policy briefing number 2, 2010, <https://www.unu.edu> accessed on 12 march, 2019. 21 ibid. 22 ibid. https://www.unu.edu/ ikpeze & emejulu: ethnic minorities and their protection: legal and ancillary measures page | 44 governance of the people. many states are home to ethnic, religious and linguistics minorities whose fundamental freedoms and human rights are abused. people from minority groups tend to be poorer and to have less power, less influence and less access to remedies to tackle their problems than those from the majority population. minorities struggle to realize all types of human rights, whether civil and political, economic, social or cultural, whether as individuals or as groups. entrenched discrimination on ethnic or religious grounds is also a common precursor to conflict. where disaggregated data exists, minorities almost always score lower for every indicator; they have lower incomes, poorer health, are less likely to complete school. poverty is closely linked to political exclusion, and minorities are much less likely to be elected as representatives or to be consulted in decision making.23 states and governments should as part of their policies ensure adequate and effective co-operation and positive relations with minorities and indigenous peoples. this is a means of enabling the minorities to raise the problems they face in peaceful ways and persuade states to address these issues, which help to prevent conflict in the long run. where states ignore the rights of certain groups within their borders, a possible effective strategy for those groups is to speak out at international from. where governments are sensitive to their international reputation, this can lead to changes in policy and practice as an attempt to preserve their reputation and influence in diplomatic circles. there should be positive relations among the minorities and the majority groups and the government. this can go a long way to assure the minorities of their inclusion in the affairs of the state and thus reduce their agitations. development of areas indigenous communities are among the most disadvantaged and vulnerable groups notwithstanding their cultural and ecological richness. they often live in hard-to-reach areas, struggle for legal recognition of customary land tenure, and face exclusion, negative stereotyping and discrimination.24 as a result, they do not equally benefit from their country’s development. disproportionately affected by poverty, indigenous peoples and ethnic minorities represent approximately 5% of the global population, but account for about 15% of the world’s extreme poor; in some regions and countries, the proportion of indigenous peoples among the poor soars to 60-70%.25 the state is expected to embark on community development projects especially in areas where the neglected minorities inhabit. this will serve as a positive response to the agitations of minorities. though, the government should not be left alone to carry this responsibility, assistance can also come from civil society groups, companies, international organizations and even individuals. the world bank partners with indigenous peoples to fight poverty through community-driven development, which is an approach to local development that empowers community groups with control over planning and investment decisions. community-driven development’s strengths such as facilitating basic service delivery in remote areas and working with diverse, heterogeneous communities and vulnerable groups-respond well to many of the unique challenges that programs face in working with indigenous peoples. indigenous communities, while diverse, all face similar challenges. recognizing that the global community and learning from these ongoing programmes, the world bank’s global peoples and ethnic minorities team and community-driven development cluster are collaborating to bring together global knowledge and customize it for local solutions. this is just one of many ways that the world bank is working to end extreme poverty and boost shared prosperity for these often-excluded communities.26 continued dialogue the state is encouraged to continue having dialogue with members of the ethnic minorities groups as a way of responding to their agitations. the representatives of such minorities should be free to sit at a round table with the state to discuss the way forward in tackling the issues associated with their agitations. in the nigerian for instance, the first effort in solving the niger delta problem was to convene a dialogue which included all the stakeholders involved. however, this dialogue had to the convened by an independent third party with no alliance to the government or the ethnic minorities. this dialogue provided the opportunity for the people to air their grievances and the advantageous ways they want their problems to be solved. more so, the office of the high commissioner on human rights advise the use of continued dialogue in solving minorities’ issues. based on the universality of human rights and the fundamental principle of equality and non discrimination, the high commissioner strives to promote and protect the human rights of all, everywhere. the promotion and protection of the rights of persons belonging to minorities is therefore an integral responsibility and significant priority of the high commissioner and ohchr, including field presences.27 more specifically, the high commissioner is called upon to promote implementation of the principles contained in the minorities declaration, and to engage in a dialogue with governments concerned for that purpose. during such ongoing dialogue and country visits, the high commissioner regularly discusses problems and possible solutions concerning situations involving minorities 23 chapter two of this work explained the ugly situation in greater details. 24 world bank group, ‘indigenous peoples and the world bank’ symposium on indigenous peoples sustainable development (may 11, 2016). <https://www.worldbank.org> accessed on 12 march, 2019. 25 ibid. 26 the world banks, ‘partnering with indigenous peoples and ethnic minorities through community-driven development’ may 11, 2016 www.worldbank.org/en/news accessed on 12 march 2019. 27 ohchr, ‘minorities and the united nations’ <https://www.ohchr.org> accessed 13 march, 2019. https://www.worldbank.org/ http://www.worldbank.org/en/news https://www.ohchr.org/ african customary and religious law review (acarelar) 5 (2024) page | 45 with both government and civil society representatives. the high commissioner and ohchr also actively provide guidance and support to other bodies and organs of the united nations. this includes follow up on minority –related resolutions of bodies such as the general assembly and the human rights council and on the recommendations of treaty bodies, the universal periodic review, the forum on minority issues and special procedures, including the independent expert on minority issues.28 ohchr also leads inter-agency work on minorities. it coordinates the united nations network on racial discrimination and protection of minorities established by the united nations. global peace and security global peace and security is key among the various goals of the international community. to achieve this, many international or regional organizations have become involved in peacekeeping, peacemaking, and other peaceenforcement activities. peacekeeping is the process of bringing about lasting peace and harmony in otherwise conflict ridden place or society. at the forefront of ensuring global/international peace and security is the united nations at the international level. regional organizations such as north atlantic treaty organization, organization for security and cooperation in europe, african union, european union, among others operate equally to see to the maintenance of peace and security around the globe. though the expression ‘collective security’ is not provided for in the united nations charter, it is often used to refer to the system for the maintenance of international peace and security under the un charter and the corresponding provisions of regional organizations. under the charter the united nations, the un has the primary responsibility ‘[t]o maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace…’.29 where the un finds in accordance with article 39 un charter, the existence of a threat to the peace, breach of the peace, or act of aggression, the un security council may make recommendations, or decide what measures shall be taken by members of the un to maintain or restore international peace and security. to this end, the un and the other regional bodies send multinational forces to various areas where there are conflicts. when the agitations of ethnic minorities groups are considered and given adequate positive response by the state and other relevant institutions, the result will be a consequential reduction in agitation, violence, crimes, animosity and disharmony. as such, there will be a noticeable growth in peace and security among the various groups making up a state. more so, where there is global peace and security, members of ethnic minorities groups being satisfied with their inclusiveness in running of the state and their assured share in the dividends of the economy, will join hands with the government to maintain the peace. funding adequate funding or fair distribution of the national bounties across all ethnic groups; majority and minority in a state can only lead to the desired peace and order which every society strives for. thus, the impact of funding on minorities agitation is that there will be a consequential reduction in agitations if the demands of the minorities groups are considered and met by the government of the state. equality of all persons under the law equality of all persons under the law is also referred to as equality before the law, or in the eyes of the law. this is also known as the principle of egalitarianism. it simply means that each person must be treated equally by the law and that all persons are subject to the same laws of justice. the law must therefore guarantee that no individual nor group of individuals be privileged or discriminated against by the government or by other individuals and/group. equality before the law is one of the basic principles of liberalism.30 this principle arises from various important concepts such as equality, fairness and justice. thus, the principle of equality before the law is incompatible with discrimination against any person based on either ethnicity, race, gender, colour, religion or social status. every person is equal before the law and must be seen and treated as such. no person can state or act above the law, no matter the person’s social or political standing. article 7 of the universal declaration of human rights (udhr) states: ‘all are equal before the law and are entitled without any discrimination to equal protection of the law’.31 thus, everyone must be treated equally under the law regardless of race, gender, national origin, colour, ethnicity religion, disability, or other characteristics, without privilege, discrimination or bias. the general guarantee of equality is provided by most of the world’s national constitutions;32 however, the extent of 28 independent expert on minority issues (chaps. iii-v) <https://www2.ohchr.org> accessed on 13 march 2019. 29 article 1 (i) un charter. 30 m evans, (ed), edinburgh companion to contemporary liberalism: evidence and experience (london: routledge, 2001), p.55. 31 universal declaration of human rights, 10 december 1948, 217a (iii), <https://www.un.org> accessed 10 april, 2019. 32 for instance, chapter iv of the constitution of the federal republic of nigeria 1999 (as amended) guarantees the protection of the fundamental rights of persons in the country. https://www2.ohchr.org/ https://www.un.org/ ikpeze & emejulu: ethnic minorities and their protection: legal and ancillary measures page | 46 enforcement of these rights may differ in countries. the constitutions of states should guarantee right to equality regardless of race and/or nationality, paying attention to international instruments already discussed in this paper. human rights education human rights education is defined as the process of learning which builds up the required knowledge, values, and proficiency of human rights with the objective to develop an acceptable human rights culture. this type of learning teaches students to examine their experiences from the human rights point of view, enabling them to integrate these concepts into their values and decision-making.33 according to amnesty international, human rights education is a way to empower people so that they can create skills and behavior that would promote dignity and equality within the community, society, and all over the world.34 for human rights education to be effective, there must be no discrimination in the dissemination of human rights education. governments must see to it that such education is imparted without bias to race, gender, colour, religion, language, national or social origin, political or personal opinion, birth, or any status taking into consideration the international covenants, conventions and treaties etc on human rights and minority rights. all students, parents, and communities possess the right to take part in decisions affecting their respective schools and the right to education.35 more so, the united general assembly has proclaimed human rights education as central to the achievement of the rights enshrined in the universal declaration of human rights (udhr) thus: now, therefore the general assembly proclaims this universal declaration of human rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms…36 in addition, article 26.2 of the udhr states the role of educators in achieving the social order called for by the declaration thus: education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. it shall promote understanding, tolerance and friendship among all nations, racial or religious group, and shall further the activities of the united nations for the maintenance of peace. furthermore, ‘states should strive to eradicate illiteracy and should direct education toward the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. the world conference on human rights calls on all states and institution to include human rights, humanitarian law, democracy and rule of law as subjects in the curricula of the learning institutions in formal and non-formal settings. human rights education should include peace, democracy, development and social justice, as set forth in international and regional human rights instruments, in order to achieve common understanding and awareness with a view to strengthening universal commitment to human rights.37 3. conclusion protecting ethnic minorities is much more than theory. it is a matter of a complete and effective international system and real life education, a matter of positive actions by governments and not works. the united nations treaty monitoring system can only work if it is actively supported by minority groups and organizations; it is they who have the greatest interest in its being effective. it is suggested that where these measures are legally applied, there are chances that he root cause of disaffection among ethnic minorities may come to an end and there will be a chance of peaceful living among different ethnic groups in the same entity. 33 the advocates for human rights, what is human rights education? <https://www.theadvocatesforhumanrights.org> accessed 10 april, 2019. 34 amnesty international, human rights education <https://www.amnesty.org> accessed 5 april, 2019. 35 the national economic and social rights initiative, ‘join nesri in supporting people’s movements for human rights.’ <https://ww.nesri.org> accessed 10 april, 2019. 36 united nations general assembly, ‘the preamble to the universal declaration of human rights 1948 10 december, 1948. 37the vienna declaration and programme of action, 12 july 1993, a/cond.157/23. section 2, paragraphs 79 and 80. https://www.theadvocatesforhumanrights.org/ https://www.amnesty.org/ https://ww.nesri.org/ african customary and religious law review 1 (2020) page | 65 analysis of children's evidence in nigerian courts: focusing on the evidence act 2011* abstract the purpose of this article is to examine the evidence of children in nigerian courts, with a particular focus on the evidence act of 2011. under the evidence act of 2011, this study addresses a witness's competency and compellability. this research was conducted using a doctrinal method, which included the use of text books, papers, journals, and internet-based materials. evidence can refer to evidence given in court by a witness, or it can refer to legally admissible testimony presented to the court. this proof could come from a child who was either the victim or was present at the time of the transactions. a youngster who, due to his age, is unable to understand or respond rationally to questions posed to him is not a competent witness. the fact that no age is either specified or intended in the evidence act is noteworthy. as a result, it is the responsibility of the court before which a child appears for the purpose of providing evidence to assess first and foremost whether the child is enough intellectual to understand or respond logically to questions posed to him. the court accomplishes this by asking the youngster a series of questions that may or may not have anything to do with the case at hand. a competent witness can be an adult, a kid, or an elderly person. this report concludes by recommending that a separate law governing children's competency rules be enacted, analogous to the youth justice and criminal evidence act of 1999 in england and wales. keywords: evidence, competence, compellable children witness, admissible evidence unsworn evidence 1. introduction courts are not magicians; they create opinions based on evidence or testimony from witnesses. in this spirit, the function of the witness is crucial in all court cases, whether civil or criminal. the court goes to the bottom of the case by learning the truth through witness testimony before applying its discretion to render a trustworthy judgment in accordance with justice. the sanctity of the witness's statements is presumed to be inherent or intact because they were made under oath and the witness was present at the time of the incident. as a result, the function of a witness in assisting the court in discovering the truth in the administration of justice has been critical. it's worth noting that, in the absence of any other influences, the outcome of a case is determined by the witness. it has now been proven that no matter how well worded a lawyer's address is, it cannot take the place of witness testimony. it's important to remember that a witness's testimony is only admissible if that witness is competent to testify.1 however, it is possible that the most important evidence to be relied upon for a fair decision in a case is that of a child.2 with rising public awareness of child sexual abuse (in which the child is often both the solitary witness and the victim) and domestic violence (where a child is likely to be a principal witness),3 in our hostile legal system, the status granted to children's evidence is being scrutinized more closely.4 in our legal system, the legal position of children's evidence is vital. as a result, excluding children's testimony may mean that an offender may not be prosecuted in circumstances where the only witness is a child or children, because there is little or no other concrete evidence against the accused. this means that many criminal acts might go unpunished, and children are often the victims of such atrocities. if, on the other hand, a child's testimony is intrinsically unreliable, and a judge or magistrate is unable to appropriately assess the evidence's credibility, the acceptance of such testimony may well prejudice the trial's outcome. this article will examine the definition of a child under nigerian law, the basic competence and compellability of a witness under the evidence act 2011, the foundations examination of child evidence prior to the evidence act 2011, and evidence of a child under the evidence act 2011, and will recommend that a separate law be enacted to govern evidence of children. 2. the meaning of a child under the statutes and judicial precedence it's worth noting that the evidence act is silent on the definition of a child.5 we'll have to look at other statuses to figure out who is a child. the age of consent in nigeria is eighteen years, according to the constitution.6 a kid is *by moses omozue, lecturer, department of public law, faculty of law, delta state university, oleh campus. 1smaranda, o. and jacob, u. ‘children evidence under the nigerian law: the new approach after the evidence act, 2011’. beijing law review, 10, (2019) 1394-1408. 2amusa, k. o. ‘fact and fiction about child’s evidence in nigeria.’ journal of humanities and social science, (2014) 19, 49-53. 3 for instance evidence of children is always required in applying violence against persons (prohibition) act 2015 which is a comprehensive statute for the protection of women in nigeria. the act prohibits all form of violence against women in private and public life and provides maximum protection and effective remedies for victims and punishment for the offenders in the following among others: physical injury, prohibition against circumcision or genital mutilation of women, prevention from property destruction, eviction, false imprisonment and isolation of women, prevention of women against verbal, emotional and psychological abuse, prevention of women against abandonment and prevention of women against intimidation. 4thomson, d. (1958). reliability and credibility of children as witnesses. 5evidence act 2011 6the age of majority under section 35 (1) (d) of the 1999 constitution of the federal republic of nigeria (as amended) omozue: analysis of children's evidence in nigerian courts: focusing on the evidence act 2011 page | 66 defined as someone under the age of twelve; whereas, a young person is defined as someone who is twelve years old or older but not an adult, according to the children and young people act.7 this act also defines the difference between a child and a teenager, stating that a child is anybody under the age of twelve, while a young adult is anyone over the age of twelve but not yet an adult.8 in accordance with the united nations convention on the rights of the child, a child is defined as a person who has not reached the age of eighteen years.9 it's worth noting that in nigeria, child-related law is found on the residuary legislative list, and thus is subject to state discretion. the child rights act is designed for individual states to adopt and alter. most states in the federation, including abia, anambra, bayelsa, ebonyi, ekiti, jigawa, edo, imo, lagos, kwara, ogun, ondo, rivers, taraba, and nasarawa, have approved the child rights act and are amending their legislation to reflect it; other states have amended the definition of a child. a young person under the age of thirteen is considered a kid in some places.10 he/she is a young person under the age of sixteen in other states, such as akwa ibom. for example, the criminal procedure act considers everyone under the age of fourteen to be a kid.11 in explaining what the age of a child is, the court in the case of okoye v. the state12stated inter alias, that: a boy or girl of thirteen years is a child. in similar vein, in the case of state v. njokwa obia, 13the court held that: a witness aged fifteen years is not a child. also the supreme court landmark case of okon v the state14where his lordship nnaemeka-agu jsc (as he then was) stated that any person below the age of fourteen years should be regarded as a child. the court went on to say that ‘in the absence of any specific provision in either the law (miscellaneous provision) act cap 89 of 1958, or the interpretation act of 1964, or any definition of the evidence act (cap 62) itself, i believe that i should adopt and apply the definition in section 2(1) of the criminal procedure act.’ ‘child’ is defined as someone under the age of fourteen years in an act meant to create provisions for the procedure to be authorized in criminal proceedings under the act. subsequent judgements have backed up the above, stating that anyone under the age of fourteen is a child. on this note, the writers believe that the use of age as a criterion for defining a kid in nigeria varies and is also influenced by the individual doing the defining and his or her cultural background.15 3. competency and compellability of a witness under the evidence act 2011 the evidential notions of competency and compellability are an ubiquitous aspect of modern legal systems, which must be understood from the start. the literature on a witness's competency to testify in court in general and compellability in particular, is both complex and insightful. this includes anything from scholarly and prominent jurist works to case law. despite the fact that much has been written about it, the debate over whether or not it is appropriate to evaluate the competency of child witnesses is far from ended.16 thus, in the case of ex p femande his lordship wiles j. (as he then was) succinctly stated the rule thus: unless he can establish specific exceptions in his favor, every individual in the united kingdom, excluding the sovereign, may be summoned and is obligated to give testimony to the best of his knowledge on any point of fact substantial and relevant to an issue in any of the queen's courts all persons shall be competent to testify unless the court determines that they are unable to understand or give reasonable replies to questions posed to them due to their tender years, severe old age, disease of the body or mind, or any other similar cause. according to section 175(1) of the nigerian evidence act 2011, ‘all persons shall be competent to testify unless the court determines that they are incapable of answering questions given to them, or of delivering reasonable responses to those questions, due to their tender years, extreme old age, disease of body or mind, or any other comparable cause.’ a person of unsound mind is not unfit to testify unless his mental illness prevents him from understanding and delivering sensible responses to the questions posed to him – section 175 (2). a blind person can testify by writing or making signs in open court, and such testimony will be considered oral evidence under section 176(1)& (2). as a result, a competent individual can clearly be defined as someone who can be legally called upon to present evidence. he is a person who is not disabled by the law or who is not 7children and young persons act, cap c 24. lfn 2004. 8smaranda and jacob, loc.cit. 9child’s right act, cap c50 lfn, 2004 10iguh, n. ‘an examination of the child rights protection and corporal punishment in nigeria’ nnamdi azikiwe university journal of international law and jurisprudence2011hhtps://www.scirp.org/journalpaperinformation. accessed on the 25th december 2021 11criminal procedure act of nigeria 12(1972) 1 all nlr p.500 13vol. 4 ecs lr p.67 14(1998) 1 n.s.c.c. p. 157 15smaranda, o. and jacob, u. loc. cit. 16 ibid african customary and religious law review 1 (2020) page | 67 exempted from giving evidence by the law's provisions.17 a compellable witness is someone who can be legally compelled to testify in court. a compellable witness' failure or neglect to appear in court when summoned may be considered contempt, for which he may be penalized. it's worth noting that compellability requires competence; in other words, all compellable people are competent. a competent individual, on the other hand, may not be compelled if he or she belongs to a group of people who have privileges or immunities from civil or criminal procedures.18 as a result of the foregoing, a kid is assumed to be incompetent and uncompellable to testify in court.19 however, if the youngster is able to overcome the legal difficulties of completing preliminary examinations conducted by the court to evaluate his competency, this presumption can be rebutted.20 the first test is to see if the child has enough intelligence to understand and respond rationally to the questions posed to him.21 this can be determined by asking the youngster questions that have no impact on the case at hand. if someone passes this test, he appears to be a competent witness. as previously indicated, the second step is for the court to establish if he understands the meaning of an oath in the context of telling the truth. if the youngster passes the second test, he will be put under oath and his testimony will be considered equivalent to that of an adult.22 however, if he fails the second test but passes the first, he is still a competent witness who will be permitted to testify under oath. in mbele v. the state, nnaemeka-agu (jsc) stated the position as follows: as a result, a court confronted with the testimony of a juvenile witness must conduct two critical investigations: (1) is he or she intelligent enough to justify keeping his or her proof, that is, does he or she grasp the importance of telling the truth? (2) does he understand the nature of an oath? an oath can only be legally administered to a kid once the aforementioned questions have been answered. the question of whether the two basic tests mentioned above should be undertaken in open court before receiving evidence from a kid is a point of controversy. however, it has been suggested that a child's competency is determined more by his or her knowledge and intellect than by 17 amusa loc. cit 18 by s.1(1) diplomatic, immunities and privileges act 1962 foreign envoys, consular officers and members of their families and staff are accorded immunity from suits, and legal processes. they cannot be summoned to court as witness. similar immunity is accorded high commissioner from commonwealth countriessection 3; and officials of some international organisations such as the eu, united nations (members whose name are in the official gazette: section 11. magistrate or district judge (north) shall, except upon the special order of the high court of the state be compelled to answer similar questions. –s.188 ea – so exception where magistrate can be compelled. exception-he may however give evidence in any other trial and be examined as to matters, which occurred in his presence while he was presiding over the case. legal practitioners: where the evidence of such counsel is necessary on the merits of the case, he should decline to appear as counsel. rule 20 rules of professional conduct 2007: can give testimony if the testimony to be given is uncontested, matters of formality or matters given about nature of legal services given to the particular client or where if he doesn’t testify it would work hardship on the client. if counsel didn’t realise that he would have to testify but later realised this in the course of the matter, he shall withdraw. if he finds out that he may be required to testify for some other party on the matter, he can continue to represent his client provided the testimony would not be prejudicial to his own client. if justice demands that he should testify and it is not prejudicial to the client’s case, he can leave the case to some other counsel. if he decides to go ahead to conduct the matter, he should not argue the credibility of his own testimony: rule 20 rpc. s192(1) ea: no legal practitioner shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such legal practitioner by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment or to disclose any advice given by him to his client in the course and for the purpose of such employment: provided that nothing in this section shall protect from disclosure —(a) any such communication made in furtherance of any illegal purpose; or (b) any fact observed by any legal practitioner in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment. public officers:no public officer shall be compelled to disclose communications trade to him in official confidence, when he considered that the public interests would suffer by the disclosure. he shall however, on the order of the court disclosure the communication to the judge alone in chambers, and if the judge is satisfied that the communication should be received in evidence this shall be done in private in accordance with section 36 (4) of the constitution – section 191 evidence act. spouses: section 182(3) ea: nothing in this section shall make a husband compellable to disclose any communication made to him by his wife during the marriage or a wife compellable to disclose any communication made to her by her husband during the marriage. section 187 ea: no husband or wife shall be compelled to disclose any communication made to him or her during marriage by any person to whom he or she is or has been married nor shall he or she be permitted to disclose any such communication, unless the person who made it or that person’s representative in interest, consents, except in suits between married persons, or proceeding in which one married person is prosecuted for an offence specified in section 182 (1) of this act. so for example when one spouse is charged with the offence of defilement of a child (s.217 c.c.) and such like offences mentioned in section 182(1) e.a. 2011, or charged with inflicting violence on his/her spouse, then the wife/husband shall be a competent and compellable witness (for the purposes of appearing before the court and disclosing communications between them and the other spouse) for the prosecution or defence, without the consent of the person charged having to be obtained. s. 196 of the evidence act: a statement in any document marked ‘without prejudice’ made in the course of statements in negotiation for a settlement of a dispute out of court, shall not be given in evidence in any proceeding 19amusa loc. cit 20 ibid. 21 ibid. 22 ibid. omozue: analysis of children's evidence in nigerian courts: focusing on the evidence act 2011 page | 68 his or her age. ‘competency is not an issue of age, but comprehension,’ the supreme court said in onyebu v the state23. in that case, one of the issues to be decided was whether prosecution witness 5 (pw5), a fourteen-yearold child who witnessed his mother's horrible murder on the farm for refusing the appellant's sexual advances, was a competent witness. in the circumstances of the case, he was declared competent. also, in solola v state,24 the supreme court held that competency to testify is not a matter of age but of intellectual capacity.25 in 1895, the united states supreme court, cited the english common law precedent in wheeler v united states26and established the american common law position that the competency of a child witness ‘depends on the capacity and intelligence of the child, his appreciation of the difference between the truth and falsehood, as well as his duty to tell the former in making such a determination, judges assessed whether children understood the spiritual consequences’ of lying on oath. in 1861 in the english decision in r v. holmes, 27 after being asked what happens to a person who speaks falsehoods (under oath), the youngster said that if he tells lies, he will go to the horrible fire of hell. the judge was satisfied that a child had the competence to provide sworn evidence. the common law position that children were not sufficiently trustworthy to act as witnesses reflected widespread contemporary beliefs that children, particularly girls, were inherently untrustworthy witnesses, prone to fantasy or fabrication, and that crimes such as child sexual assault were rare. 4. the groundwork examination of child evidence before 2011 act a child's competence as a witness is determined by two conditions under common law. for starters, his youthful age should not prohibit him from comprehending the issues posed to him or from providing sensible responses to those questions. mbele v the state28 shows how the court achieves this by asking the child preliminary questions that may or may not have anything to do with the case at hand. if the court concludes that the kid is unable to comprehend or respond to questions logically as a consequence of this examination, the youngster cannot be called as a witness in the case. however, if the youngster passes this exam, he will be put to a second test to determine whether he is able to understand the nature of an oath in the court's opinion. this is also assessed by the court asking the youngster things like, ‘do you go to sunday school?’ ‘do you comprehend the value of god and what will happen to someone who lies after swearing on the holy bible?’ ‘is the bible a special book?’ ‘do you understand the importance of god and what will happen to someone who lies after swearing on the holy bible?’ if he fails this exam, he will still be able to give his testimony but will not be able to take the oath, assuming he passed the first test mbele v the state (supra). it derives from the concept that oral evidence must be given under oath or affirmation in most cases. it is vital to note that the competency test is not required because a trial judge or magistrate is not required to evaluate a child's competence until the other party challenges it.29 in the case of okon v. the state,30 the supreme court stated, ‘since all persons are competent to testify, the court, in my opinion, 23(1995) 4 n.w.l.r. (pt. 391) 510. 24(2005) all fwlr (pt. 269) 1751 s.c 25according to muktar jca in nasiru ogunsi v. state (1994) 12 nwlr (pt.66); ‘before a child of tender years evidence is taken, the judge must ask certain questions like her age or whether she understands the questions put to her. if the judge is satisfied that she understands the questions put to her then he can proceed to enquire from her whether she understands the essence or implication of oath taking. if she understands, she will be sworn and her evidence will be taken on oath. and if the judge is satisfied with the child’s answer, that she quite understands the reason why she’s in court and is intelligent enough to answer the questions put to her brilliantly and rationally, then she becomes a competent witness and her evidence is admissible and can be recorded’. it should be noted importantly that when the child gives evidence on oath, such evidence is treated as that of an adult and except the fact in issue is one that expressly requires corroboration. it is clear, from the above position that a judge faced with the testimony of a child witness has two vital investigations or preliminary tests to make. the supreme court in mbele v. the state (supra) restated these two tests thus; 1. whether the child is possessed of sufficient intelligence to be able to understand questions put to him rationally to justify the reception of his evidence; that is, does he understand the duty of speaking the truth? the court does this by putting preliminary questions to the child which may have nothing to do with the matter before the court. if the answer to the first investigation is in the negative, then the child cannot be a witness at all in the case. if the answer is in the affirmative then, 2) whether the child understands the nature of an oath. this second investigation is also determined by the putting of questions to the child as to the nature of an oath such as asking him about god and what will happen to one who tells lies after being sworn, etc. if he fails in this respect, he will nevertheless be able to give evidence, but will not be sworn. the supreme court’s decision in the above case was in line with the former section 183(1) now section 209(1) of the evidence act. this section provides: ’in any proceedings in which a child who has not attained the age of fourteen years is tendered as a witness, such a child shall not be sworn and shall give evidence otherwise than on oath affirmation, if in the opinion of the court, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth ‘. 26 254 u.s. 281 (1920) 27 (1861) 175 er 1286 28(1990) 4. n.w.l.r. (pt. 145) p. 484 29admin (2017). corroboration of evidence of children: the new tests. https://www.google.com/search?rlz=1c1 chbd_enng829ng829&q=admin (2017).corroboration+of+evidence+of+children:+the+new+tests.&tbm=isch&source=univ&sa=x&ved=2ahukewiggwm7fmahvnrxokhtrzcpiq7al6bagkecq&biw=1280&bih=657 accessed 25 december 2021. 30(1988) anlr 173 at 186. african customary and religious law review 1 (2020) page | 69 has no obligation to determine a witness's competency to testify unless the witness's competence to testify is challenged for any of the reasons listed in the section.’31 it is critical that a trial judge document the fact that an investigation was undertaken to evaluate the child's ability to offer sensible answers to questions, his or her intelligence, and whether or not the child knows the need of telling the truth. a trial judge, on the other hand, is simply needed to state his conclusions and is not obligated to record the exact or actual questions and answers posed to the kid. as a result, failing to record the particular questions and answers posed to the child witness will not prevent a fair judgment and opinion from being reached. in mbele v the state32 appellant contended that the trial judge ought to have recorded the specific questions and answers during the inquiry. agbaje jsc said:in the case of mbele v the state (supra).33 (1) whether the child has sufficient capacity to comprehend questions put to him rationally to justify the reception of his evidence; that is, does he understand the duty of speaking the truth? (2) whether the child is possessed of sufficient intelligence to understand questions put to him rationally to justify the reception of his evidence; that is, does he understand the duty of speaking the truth? the court accomplishes this by asking the youngster a series of questions that may or may not have anything to do with the case at hand. if the first investigation yields a negative result, the youngster cannot be called as a witness in the case. if the answer is yes, the next question is whether the youngster understands what an oath is. this second investigation is also determined by asking the youngster questions concerning the nature of an oath, such as what will happen to someone who lies after being sworn, and so on. if he fails in this area, he will still be permitted to testify, but he will not be sworn. the supreme court's decision in the following case was consistent with the evidence act's former section 183(1), now section 209(1). this section contains the following information: in any proceeding in which a child under the age of fourteen is called as a witness, such a child shall not be sworn and shall give evidence other than on oath affirmation if the court determines that he is of sufficient intelligence to justify the reception of the evidence and understands the responsibility of speaking the truth (scharticle.com, 2018). commentators on phipson appear suspicious about the effectiveness of such a probe, arguing that ‘the conduct of a judge's inquiry as to whether a child should be sworn or not may possibly raise concerns today.’ 34 cross and willins oppose the use of divine sanctions to determine a child's ability to testify under oath. rather, they argue that a judge should assess whether the youngster understands the significance of the event. they advised as follows: it was formerly argued that the judge had to be satisfied that the potential witness understood the nature and ramifications of an oath, and the context made it clear that the court was considering divine sanction. a more secular perspective had lately been taken by the court of appeal. the main issue is for the judge to be convinced that the youngster understands the seriousness of the occasion and is responsible enough to realize that taking an oath entails an obligation to tell the truth above and above the ordinary duty of doing so. it is unnecessary for a youngster to believe in anything resembling heavenly sanction, because the vast majority of the adult community does not.35… 5. evidence of a child under the evidence act 2011 section 155 of the evidence act, 2004, which is in pari materia with the new section 175 of the evidence act, 2011, which deals with the first test of a child who may be competent to testify in court as discussed above, has brought about some innovations regarding the admissibility of unsworn evidence of a child and the requirement of corroboration, has brought about some innovations regarding the admissibility of unsworn evidence of a child and the requirement of corroboration. unsworn testimony of a juvenile witness could be used in criminal proceedings under section 183 of the evidence act 2004. by not confining it to criminal procedures but also civil processes, section 209 of the evidence act of 2011 introduced significant advances. section 209 provides thus: if the court judges that a child under the age of fourteen is of sufficient intelligence to warrant the receipt of his evidence and understands the duty of speaking the truth, the child shall not be sworn and shall give evidence other than on oath or affirmation.36 209 (2): a child who has attained the age of fourteen years shall, subject to sections 175 and 208 of the act give sworn evidence in all cases. section 183 of the evidence act 2004 dealt with a child's unsworn evidence in criminal matters, while section 209 of the evidence act 2011 distinguished between the competence of a child under the age of fourteen and that of a child above the age of fourteen. between the two evidence acts, there is a considerable distinction. section 209 (1), unlike section 183, which solely applied to criminal cases, encompasses both civil and criminal cases. as a result, it is safe to say that the 2011 evidence act is a major advance over the previous legislation.37 in contrast to its 2004 equivalent, the new law states that a kid 31 admin loc. cit 32 (1990) nwlr (pt. 145) p484 at 498. 33484-488 34phipson the principle of the law of evidence 13th ed. (scotland: sweet & maxwell) 1983. 35cross and wilins an introduction to evidence (5th ed). london: butterworths 1981. 36onyekachi, d. (2016). oaths and affirmations legal. https://legalemperors.blogspot.com/2016/01/oaths-and affirmations_11.html accessed 25 december 2021. 37smaranda and jacob loc. cit omozue: analysis of children's evidence in nigerian courts: focusing on the evidence act 2011 page | 70 under the age of fourteen is not qualified to provide sworn testimony.38 in contrast to the previous section 183 of the evidence act 2004, which failed to define who is a child and as a result, a definition was sought in other laws and only applied to criminal proceedings, this section makes it clear that if a child is under fourteen years of age, his evidence shall be unsworn if he has sufficient intelligence to justify the reception of his evidence and he understands the duty of speaking the truth. a child witness under the age of fourteen must understand the questions asked to him, provide reasoned responses to those questions, and understand the nature of an oath, according to the 2004 act, which only pertained to civil cases. the question of whether a child who is legally prohibited from providing testimony under oath must ‘possess sufficient intelligence to warrant the reception of his evidence and appreciate the duty of stating the truth’ sparked debate over the 2004 act's paragraph. this sentence is still in effect under the 2011 act.39 in addition, section 209 of the 2011 act resolved a discrepancy between the child rights act of 2003 and the evidence act of 2004. (1) in any proceeding, whether civil or criminal, a child's testimony may be submitted without being sworn in, according to the child rights act. 2) a deposition of a child's sworn evidence shall be treated as if it had been delivered under oath for the purposes of any civil or criminal action. while the preceding provisions clashed with section 183 (1) of the 2004 act, which limited the admissibility of unsworn evidence of a child to criminal proceedings, the conflict has now been resolved by the inclusion of the words ‘in any proceedings’ in section 209 (1) of the 2011 act, which allows unsworn evidence of a child to be used in civil proceedings. section 209 (2), on the other hand, makes it clear that a kid over the age of fourteen must provide sworn testimony in civil and criminal procedures. sections 175 and 208 of the same act govern this provision. this means that, (a) even if a child has reached the age of fourteen, he must grasp the questions posed to him or provide sensible replies to them, as well as understand the essence of an oath. (b) if the court believes that taking any oath, regardless of religious belief, is unlawful, or if the court believes that the child witness should not give evidence under oath due to a lack of religious belief, the court may waive the obligation of administering evidence under oath. the 2004 act did not have a similar provision. it's a one-of-a-kind trend brought on by the 2011 act.40 notably, despite these improvements, these revisions do not go far enough to improve children's competency, since section 209 (3) of the 2011 act requires that an unsworn statement made by a child under the age of 13 be backed up by additional significant evidence: 209 (3): a person is not liable to be convicted of an offence unless the testimony acknowledged under subsection (1) of this section and given on behalf of the prosecution is backed up by other relevant evidence implicating the defendant. the legal ramifications of these provisions include that nothing in section 209 of the 2011 act establishes the requirement that unsworn evidence of a child over the age of fourteen years be accompanied by corroborative evidence accusing the accused person, even in criminal situations. on the contrary, the 2004 counterpart stipulated that in criminal proceedings, the unsworn testimony of a child of any age requires corroborative evidence, accusing the accused person. this trend in the 2011 act appears to be the adoption of several nigerian intellectuals' opinions. for example, amupitan was of the opinion that although the new evidence act was modeled after amupitan's suggestion, the legislature limited the exception (special treatment) to only a few cases, in order to remove the controversy created by the need for preliminary inquiry or not, a person of fourteen years and above should be treated like an adult who can give sworn evidence in court, while a person under the age of fourteen should be treated as a child whose evidence requires special treatment. in this connection, it is also worth noting that nothing in section 209 (3) indicates that in civil matters, the unsworn testimony of a minor under the age of fourteen requires confirmation.41 as a result, section 209 (1) of the 2011 act only applies to criminal prosecutions when it comes to a youngster delivering unsworn testimony.42although it is preferable to raise an objection to a witness's competence before the start of the trial so that it can be debated by both sides and decided by the judge. previously, it was the law in chief wallaston v hakewill43; that such an objection be made while the witness was being examined; however, the new trend in practice is to consider it during the final address or even on appeal, as was done in sambo, peter, and a slew of other cases decided by superior courts of record in nigeria dealing with child evidence. 6. conclusion and recommendations the evidence of minors in nigerian courts was examined in this study, which focused on the evidence act of 2011. it should be highlighted that witnesses are crucial in all cases, whether criminal or civil. counsels based their written speeches on witness testimony, and judges based their decisions on evidence presented in court. the age of majority in nigeria is when a person has reached the age of eighteen years, as defined by the 1999 constitution of the federal republic of nigeria (as amended) and other laws. a test of intelligence is used to determine a child's ability to offer evidence. this is because, in a criminal trial, a kid will be competent to testify 38 ibid. 39 ibid. 40 ibid. 41roger, s. the norton history of the human science. (1997) hhtps://www.scirp.org/journalpaperinformation. accessed 25 december 2021. 42smaranda and jacob loc. cit. 43(1841) 3 scott n.r. 593. african customary and religious law review 1 (2020) page | 71 if he or she can grasp the questions and respond in a way that is understandable. in civil cases, however, a child will be considered a party if he or she passes the test for taking an oath or the standard for delivering unsworn testimony set out in the children's and young persons' act,44 as well as section 209 (3) of the evidence act, 2011. the study also found that the new evidence act of 2011 made some positive adjustments, such as eliminating the need for an oath before a child can testify in court and allowing a kid as young as fourteen to provide sworn evidence. unsworn testimony of a minor witness is admissible in criminal trials under section 183 of the evidence act 2004. section 209 of the evidence act of 2011 introduced significant changes by allowing evidence to be used in both criminal and civil cases. section 209 provides thus: if the court judges that a child under the age of fourteen is of sufficient intelligence to warrant the receipt of his evidence and understands the duty of expressing the truth, such kid shall not be sworn and shall give evidence other than on oath or affirmation.45 finally, this essay advocated that a separate legislation be enacted in nigeria to manage the evidence of children. it is hereby recommended that a separate law pertaining to children's competency rules be created, analogous to the youth justice and criminal evidence act of 1999 in england and wales, with unambiguous requirements that: 1) in criminal cases, child testimony must be delivered under oath. 2) for the purposes of criminal proceedings, an unsworn deposition of a child's evidence may be taken as if it had been delivered under oath. 3) if the court receives evidence from a child under the age of 14, it will be treated as if it were given under oath. 4) a person under the age of fourteen is believed to be able to testify. 5) a potential witness under the age of fourteen years old may testify if he is able to understand and reply to questions without the need for corroboration.46 44section 96 of the cypa, cap. c 24 lfn, 2004. 45onyekachi, loc. cit. 46 ibid. obi-obiora & asiazobor: the role of traditional institutions in local governance in nigeria page | 56 the role of traditional institutions in local governance in nigeria* abstract as a country, nigeria is the outcome of the 1914 amalgamation of the northern protectorate and the southern protectorate. ever since its formation nonetheless, the country has gone through various phases. colonial domination, the several military coups, the civil war are some of the negatives which have somewhat blighted the constitutional history of nigeria and even in recent times, constitutional discuss seems to have shifted towards the manifest maladministration which continues to bedevil the country: a situation which is also visible in the massive corrupt and incompetent institutions of governance at the local levels of the country. however, a number of studies have acknowledged the buoyancy, acceptability and relevance of african traditional institutions in the socio-cultural, economic and political lives of africans, particularly in the rural areas. therefore, scholars have variously expressed the view that by totally neglecting the traditional institutions in local governance, there has been a loss in local cohesion in nigeria thereby leading to the several noticeable negatives. this paper considers the concepts of traditional institutions and local governance, while analyzing the roles of traditional institutions in the different epochs of nigeria’s constitutional history. keywords nigeria, traditional institutions, local governance, constitution 1. introduction the political entity called nigeria is the product of the 1914 amalgamation of the northern protectorate and the southern protectorate by the british colonial administration. however, a review of the historical background of nigeria as a political entity would reveal the several challenges which the country has gone through including having the systems of administration which were present in the several parts of the country, completely dominated and subjugated by the british. this fact seems to be the reason why most western scholars hold the belief that pre-colonial african societies had no system of administration: that is, no law, no order, no government, and no civilization. however, this belief has long been seen as not only very erroneous but grossly subjective. as a fact, it has been known that traditional african societies, indeed, had well organized and well established systems of administration where public order was provided and maintained; where laws were made and implemented; where intercommunal and inter-tribal conflicts were adequately settled. again, the several military coups seem to have had an adverse impact on traditional setups in the country. the above facts appear to be the root of the manifest maladministration which continues to bedevil the country, a situation which is visible in the massive corrupt and incompetent institutions of governance at the local levels of the country. nonetheless, scholars have variously expressed the view that by totally neglecting the traditional institutions in local governance, there has been a loss in local cohesion in nigeria thereby leading to the several noticeable negatives. in effecting our aim to examine the role of traditional institutions in local governance in nigeria, this paper is divided into rubrics. we shall begin by considering the concepts of institutions, traditional institutions and local governance. we will then proceed to analyze the roles of traditional institutions in the different epochs of nigeria. we will examine the then native authority system. we will analyze the effects of the 1976 local government reform on traditional institutions in local governance in nigeria. the work is concluded by proposing several recommendations as to how best traditional institutions can be incorporated into local governance in nigeria. 2. conceptualizing institutions, traditional institutions in nigeria and local governance institutions from the framework of positive political theory and as often applied by political scientists, ‘institution’ as a concept refers to ‘the relatively durable structures and processes of political decision making… institutions are the rules of the game in a society or, more formally, are the humanly devised constraints that shape human interaction’.1 consequently, they structure incentives in human exchange, whether *by hilda obi-obiora, llb, llm. bl, lecturer, nnamdi azikiwe university, anambra state. email: hildaobiobiora@gmail.com *favour christopher asiazobor, llb, llm, bl, lawyer, benin city, edo state. email: favourasiazobor@gmail.com mailto:hildaobi-obiora@gmail.com mailto:hildaobi-obiora@gmail.com acarelar 2 (2021) page | 57 political, social, or economic.2 institutions can be formal, such as legal codes, or informal, such as social customs, mores, and traditions. the crucial point to note is that institutions channel and structure human behavior.3 traditional institutions in nigeria when we speak of traditional institutions in nigeria, we refer to a system of indigenous traditional administration which varies from one part of nigeria to the other. the institution of traditional rulers is an enduring part of our heritage; it plays a critical role as the custodian of culture and traditions.4 traditional rulers are the heads of their communities and they owe their legitimacy to customs and traditions. they are commonly chosen by the ‘gods’, represent them on earth and have religious sanctity. they are regarded as very powerful and custodians of spiritual activities. a traditional ruler is a person who has been appointed to, and occupies the throne of an area by virtue of his ancestry in accordance with the established tradition. traditional leadership is an ancient institution prevalent across the entire african continent. in nigeria, courts have held that the issue as to who is eligible to ascend a traditional stool or throne is subject to the customary law and traditions of the people concerned which is a question of fact borne out by evidence, unless such custom has assumed a status of notoriety for it to be judicially noticed.5 the ibrahim dasuki committee on the review of local government administration in 1984 defines a traditional ruler as, the person who by virtue of his ancestry occupies the throne or stool of an area and who has been appointed to it in accordance with the custom and tradition of the area and has suzerainty over the people of that area.6 therefore, traditional institutions, as it relates to nigeria, denote all those customary administrations ubiquitously present in the several parts of nigeria and autochthonous to the people in the different areas. local governance local governance historically predates the emergence of nation-states. in ancient history, tribes and clans established systems of local governance in most of the world. they established their own codes of conduct and ways of raising revenues and delivering services to the tribe or clan. tribal and clan elders developed consensus on the roles and responsibilities of various members. it therefore appears that local governance is actually the forerunner of modern governance in nation-states. by local governance, we refer to public administration at the local level. generally, local governance is tailored along grassroots development. from available literature however, it appears that it is practically impossible to examine ‘local governance’ as a concept without considering the concept of ‘local government’. nonetheless, it appears that the views of scholars on local government as a concept have been restricted to local government in democracy as a system of government. by this, we mean that, the several authors on the subject obviously assume that the concept of local government only relates to democratic systems. therefore, gokhale for instance makes the point that ‘local government is the government of specific locality by the local people through the representatives elected by them.’7on his part, lockard opines that local government may be loosely defined as a public organization, authorized to decide and administer a limited range of public policies within relatively small territory which is a sub division of a regional or national government8 and following this trend, stone defines local government as that part of the government of a country which deals with those matters which concern the people in particular locality.9it is our position however, that the concepts of local governance and local government cannot only be placed in the domain of democratic systems. as a fact, these concepts can be stretched to systems without democratic tendencies. therefore, in this paper, we apply the concept of local governance to traditional institutions irrespective of whether these institutions can be classified as democratic. 1 d. rodriguez, ‘state constitutionalism and the domain of normative theory’ [2000] (37) san diego l. rev.; 523, 537-38 2b. barton, ‘an institutional analysis of lawyer regulation: who should control lawyer regulation courts, legislatures, or the market?’ [2003] (37) ga. l. rev.; 1167, 1176 3m., jonathan, ‘models of subnational constitutionalism’ [2011] penn. st. law review; 1156. available at: http://www.pennstatelawreview.org/115/4/115%20penn%20st.%20l.%20rev.%201151.pdf.> accessed 13 november 2020 4p. o. agbese, ‘chiefs, constitutions and policies in nigeria’ <http//www.chr.up.ac.za/chr> accessed 30 november 2020 5olaniyan v. oyewole (2011) 14 nwlr (pt. 1268) p. 445 6k. e. orji, ‘traditional rulership and local governance in southsouth nigeria’ [2013] (16) (2) journal of humanities and social science; 39 7b. k gokhale, the constitution of india (sheth & company. 1972); 1307-08 8lockard d., “encyclopedia of social sciences”, vol. 9, new york, p. 45. 9 p. stone, local government for students (mc donald and evons ltd. 1963); 1. http://www.pennstatelawreview.org/115/4/115%20penn%20st.%20l.%20rev.%201151.pdf obi-obiora & asiazobor: the role of traditional institutions in local governance in nigeria page | 58 3. the roles of traditional institutions in local governance in nigeria the period before 1966 concerns on traditional institutions and local administration have occupied the center stage in the political history of nigeria even prior to the epochal amalgamation of 1914 and the eventual grant of independence from british hegemony in 1960. prior to colonization, there existed different administrative arrangements of indigenous traditional administration in the several parts of the country. in the northern part of the country, the hausa/fulani practiced a highly centralized system of government where the emir is both the political and religious leader. the emir had the responsibility of making laws, enforcing them and maintaining peace and order in his emirate. as the religious leader, he was expected to ensure that the conduct of the affairs of the emirate was guided by the provisions of islamic and sharia laws.10 nevertheless, in discharging his functions, the emir had a number of advisers. notable among these were: ‘sarkin fada’ [the spokesman of the emir and organizer of palace workers], ‘waziri’ [the prime minister], ‘galadima’ [the administrator of the capital city], ‘madawaki’ [the commander and head of the army], ‘magaji’ [officer in-charge of the treasury], ‘sarkin dan doka’ [in charge of security], ‘sarkin ruwa’ [in charge of water resources, among others].11 the administration of justice was based on strict islamic law, also known as the sharia law. this was administered by sharia courts headed by a trained judge called ‘alkali’. although there were village heads who settled minor disputes, the final decisions in most cases resided on the emir. in the western part of nigeria, the administrative system was monarchical under the control of the oba. in discharging his duties, the oba was assisted by baales who administered towns and villages and in turn, paid royalties to the oba at stipulated times. the power of the oba was not without checks.12 in oyo kingdom for instance, the oba wielded much power but was subject to the control of the oyomesi, an institution of kingmakers. the oyo-mesi therefore served to prevent abuse of power. also, the oyo-mesi, had the power to force an erring oba to abdicate his throne or commit suicide in case of irreconcilable difference.13 in the same way, the oyo-mesi did not wield absolute power because they were also subjected to the control of the ogboni, acting under the authority of religion. as for the administration of justice, the alafin held sway as the supreme judge of the oyo empire and there could be no appeal against his judgment. again, in the eastern region of nigeria, being predominantly dominated by the igbo ethnic group, the system of administration was republican and egalitarian in nature because they had no kings or chiefs. the basic administrative decisions were taken on behalf of the people by an assembly of men known as the ‘ohaneze’. the ohaneze is a group of men made up of family heads who hold the ofo title. the council of elders is assisted by various age-grade groups. the power of the council of elders was not without checks. to this end, one of the functions of the age-grade groups was to prevent the abuse of powers by the council of elders. however, the agegrade groups also executed other general functions. these include, the preservation of law and order, forging defense for the village against external attacks, construction and maintenance of roads, etc. however, it is pertinent to note the role accorded to the ozo title holders, who are respected and influential men in the village who are often consulted in the day to day administration of their communities.14 concerning the administration of justice, the various institutions listed above were vested with the function to administer justice contingent on the particular nature of the case. in the south of nigeria, there were several precolonial administrative arrangements. the benin kingdom was one of such precolonial setups. in fact, the ancient kingdom of benin was one of the most prosperous, powerful and protuberant states in pre-colonial africa. its artistic achievements, 10j. o. fatile and d. k. adejuwon, ‘conflict & dispute resolution in trade unionism in nigeria’, [2010] (6) (3) journal of public policy and administration studies; 40-52 11erero, ‘traditional structures in local governance for local development: a study of ife east local government area, osun state, nigeria’ in o. k. ohiole and i. s. ojo (eds.), ‘traditional institution and the modern day administration of nigeria: issues and prospects’ [2015] (2) (9) journal of research and development; 35 12rotimi ajayi, ‘politics and traditional institutions in nigeria: a historical overview’ [1992] (21) transafrican journal of history, 124-138 13s. b. fajonyomi, ‘governing the grassroots. an analysis of decisionmaking in nigerian local governments’ in osakede, and ijimakinwa, ‘traditional institution and the modern day administration of nigeria: issues and prospects’, p. 35 14erero, ‘traditional structures in local governance for local development: a study of ife east local government area, osun state, nigeria’ in osakede, and ijimakinwa, (edn), ‘traditional institution and the modern day administration of nigeria: issues and prospects’, p. 36 acarelar 2 (2021) page | 59 intricate pantheon of gods, sophisticated system of government headed by the oba, and the frightening aura of its monarchy make the benin kingdom a fascinating subject of constant historical discuss amongst scholars. the history of the benin kingdom dates back to the ogiso era, which has been traced to the 10th century.15 the central administration and leadership structure of the benin kingdom comprised of three different sets of functional chiefs of importance each with different functions and responsibilities to perform. at the helm of the central administration and leadership structure is the uzamanihiron and the uzama comprises of eghaevbo (chiefs): the eghaevbo no re and eghaevho no gbe. there were also palace chiefs (eguaenigie) who were assigned different responsibilities and functions of importance. the palace chiefs comprised of the iwebo, iwague and the ibiwe. the iwebo, looks after the oba’s regalia, the iwague looks after the oba’s apartment and are his private attendants and confidants while the ibiwe looks after the wives of the oba. to be an uzama or eghaevbo, one must be someone of high repute, resolute, tested, and credible and must have proven himself beyond all reasonable doubt in society.16 it is pertinent to mention the position of the iyase at this juncture.17 his position is tantamount to that of a prime minister. hence, he occupies the number two position in the benin kingdom. it is seminal to note that an examination of the indigenous systems of administration mentioned above reveals that the systems, unlike what many european authors maintain18, possess fundamental rudiments of good governance and tendencies for constitutionalism. for instance, by institutionalizing the oyo-mesi as a check on the power of the oba in the oyo empire, the administrative system in the western part of nigeria prevented abuse of power by the oba, even to the extent that the oyo-mesi could force an erring oba to abdicate his throne or commit suicide in case of irreconcilable difference.19in this sense, one can validly maintain that this practice necessarily guaranteed checks and balances, constitutionalism, as well as public accountability, in the western part of nigeria. the situation in the eastern part of nigeria, where the age-grade groups served as a check on the activities of the council of elders, also goes to show the element of checks and balances in the precolonial setup in the eastern part. again, owing to the positions of the oba, the iyase and the uzama of benin kingdom, one could validly argue that the precolonial administrative arrangement in the benin empire essentially involved the principle of separation of powers long before the english publicist, john locke20 and the french thinker, baron de montesquieu expressed his their views on the principle of separation of powers.21 nonetheless, during the period of colonialism, the system of indirect rule or native authority system was introduced. this system gave protuberant roles in numerous grades to traditional rulers. in fact, it could be argued that the major actors under the system were the traditional rulers. under the colonial administration, local government was known as native authority or administration system. it was a form of indigenous rule under colonial authorities whereby ‘traditional institutions of chiefs and other traditional rulers administer the natives under the supervision of british administrative officer’22 in this wise, traditional rulers were members of the colonial administrative apparatus because they were given wide powers over matters in their domain except the power to keep a regular army and to levy tax.23 it was this magnitude of functions given to traditional rulers under the native authority system that pitched them against the educated elite in the period immediately preceding political independence. 15e. b. eweka, evolution of benin chieftaincy titles (uniben press. 1992); 8 16john ugiagbe, ‘nigeria’s failing democracy: lessons from the benin kingdom’ <http://nigerianobservernews.com/18122013/features/features1.html#.vyadktr97iu> accessed 2 november 2020 17seo ogbonmwan, ‘of heredity and benin traditional system’ <http://www.edoworld.net/of_heredity.html> accessed 2 november 2020 18james giblin, ‘issues in african history’ http://www.zyama.com/iowa/african%20history.htm accessed 2 november 2020; christopher prior, ‘writing another continent’s history: the british and pre-colonial africa, 1880-1939’ < http://www.gla.ac.uk/media/media_64283_en.pdf> accessed 2 november 2020 19fajonyomi, ‘governing the grassroots. an analysis of decisionmaking in nigerian local governments’ in osakede, and ijimakinwa, ‘traditional institution and the modern day administration of nigeria: issues and prospects’, p. 35 20 second treatise on civil government (1690) 21 the spirit of law (1748) 22cletious e. emezi, ‘the changing patterns of local government in nigeria’ [1983] (1) (1) the nigerian journal of local government studies; 7 and 8 23fajonyomi, ‘governing the grassroots. an analysis of decisionmaking in nigerian local governments’ in osakede, and ijimakinwa, (edn), ‘traditional institution and the modern day administration of nigeria: issues and prospects’, p. 36 http://nigerianobservernews.com/18122013/features/features1.html#.vyadktr97iu http://www.edoworld.net/of_heredity.html http://www.zyama.com/iowa/african%20history.htm http://www.gla.ac.uk/media/media_64283_en.pdf obi-obiora & asiazobor: the role of traditional institutions in local governance in nigeria page | 60 however, there was nothing wrong with the use of indigenous institutions, chiefs and rulers in the then newly established local administration, for that was the existing governing structure before the advent of colonialism but there was certainly something wrong with the system itself. by placing traditional ruler as subordinates to the british, the policies being churned out were radically different from what the traditional rulers ‘knew’. notwithstanding, under this new indirect rule system, they had the duty to stand by those policies and implement them when in the main, they (the traditional rulers) had no conviction concerning the policies which were basically foreign to them. in other words, ‘the policies were transmitted to the traditional rulers who hardly understood the logic and rationale of the policies. nevertheless, they transmitted those policies to their people and expected compliance’24 making the (indirect rule) system illogical. in the period immediately preceding political independence, traditional rulers retained their prominence in governance. the richards constitution of 1946 for example established houses of assembly in each of the three regions, and a house of chiefs in the north. the houses of assembly were composed of both official members and unofficial members. the official members were those members who were appointed by the governor and the unofficial members were chosen by the native authorities from amongst themselves. this function of the native authorities as it relates to the regional houses of assembly was also reenacted under the mcpherson constitution of 1951. however, the lyttleton constitution of 1954 reduced the constitutional functions of the traditional rulers both at the federal and regional levels. at independence, the 1960 constitution also established a council of chiefs at the regional level and the 1963 constitutions also reenacted this provision relating to the council of chiefs at the regional level. in the north, the council of chiefs was created and chaired by the premier of the north. this was a policy making body whose decision was binding on the government. in the western and eastern regions, minority councils were created which were merely advisory without any policy or decision making powers. the period after 1966 as mentioned above, nigeria as a country was hosted into military rule in 1966. thereafter, the civil war took its turn in the negative events which characterized the history of nigeria in that period. however, these events seem to have had negative effects on traditional institutions in nigeria. this is especially so as regards military rule. particularly because the military government as well known, does not permit any form of challenge to its rule. therefore, the military rulers effectively relegated the traditional rulers to the background. this unfortunate position of the traditional institutions became glaring in 1976 during the general olusegun obasanjo military regime. this regime embarked on a local government reform. the reforms were the federal military government’s response to the recommendations of the udoji public service review commission.25 the aim of the reforms was to make the local governments more effective in their primary role of bringing development to the grassroots. the reform established a multi-purpose single tier system throughout the country, with the same structure and functions. local governments were recognized as a third tier of government within the federal structure. the 1979 constitution recognized local government as such thus reinforcing the main features of the reform. however, with its conviction that, while traditional rulers are very powerful and respected among the nigerian peoples, they must not be partisan, the military covertly and overtly excluded traditional rulers from government. this was done through the local government reforms of 1976. this demoted status of the traditional institutions was reiterated in the 1979, 1989 and 1999 constitutions designed by military regimes in nigeria.26 while analyzing the negative effect of the 1976 local government reform, a scholar made the following points: … radically altered the locus of traditional rulers vis a vis local government. the alteration is more vividly epitomized in the concrete particulars of the new local government system, in which among other feature traditional rulers have been 24a. a. a. john., ‘the development of democratic local government in nigeria’ in aborisade and mundt (ed.), local government in nigeria and the united states: learning from comparison (ife local government publication series. 1995); 19 25wikipedia, <https://en.wikipedia.org/wiki/jerome_udoji> accessed 15 november 2020 26t. babawale, a. alao and a. adesoji., the chieftaincy institution in nigeria (concept publishers for centre for black and african arts and civilization. 2010); 481-497 https://en.wikipedia.org/wiki/jerome_udoji acarelar 2 (2021) page | 61 extricated from the centre of local government operations and converted into informed observes of local government.27 through these avenues, traditional rulers were legally and formally insulated from the administration and affairs of government, as they were given very limited advisory roles to play. even at the local levels which are the levels in which the traditional rulers commanded great respects, the military governments made the local government administrator/chairman superior to the traditional rulers.28 more surprisingly, the current 1999 constitution however does not mention the traditional institution at all thereby reversing the gains (if any) which the institution made over the years. 4. a comparative analysis from the foregoing, it appears that the trend in nigeria has been directed towards neglecting traditional institutions. this is irrespective of the perception that a total neglect of traditional institutions in local governance would lead to a total loss of local cohesion in the country. therefore, it is imperative to embark on a comparative analysis concerning the roles of traditional institutions in local governance. firstly, undoubtedly united kingdom operates a monarchical system of government. this system basically involves a hereditary leadership. monarchy as a system of government reflects the personification of the majesty and sovereignty of state in an individual. however, in the united kingdom the function of the head of state lies with the royal family, while the role of chief executive resides in the prime minister elected from the british parliament. again, the composition of the british parliament shows an attempt to imbue traditional governance into the contemporary british government. for instance, although house of commons, being the second chamber of the british bicameral parliament, is composed of members which are democratically elected, the house of lords includes two different types of members. that is, the lords spiritual, consisting of the most senior bishops of the church of england, and the lords temporal, consisting of members of the peerage and life peers who are appointed by the sovereign on the advice of the prime minister.29 this shows an attempt to involve british traditional setup into contemporary governance. in malawi, the constitution provide for specific roles for the traditional rulers by mandating that the senate shall consist of eighty members including one senator from each district, being a chief registered as a voter in that district and elected by a caucus of all the chiefs of that district in secret ballot within thirty days of each local government election.30 the zimbabwean constitution of 1985 provides for constitutional status for its traditional rulers. to this end, the institution, status and role of traditional leaders under customary law are recognized under the zimbabwean constitution. the constitution provides that a traditional leader is responsible for performing the cultural, customary and traditional functions of a chief, headperson or village head, as the case may be, for his or her community.31 therefore, in zimbabwe the roles of traditional leaders include promoting and upholding cultural values of their communities and, in particular, to promote sound family values, to take measures to preserve the culture, traditions, history and heritage of their communities, including sacred shrines, to facilitate development, to administer communal land and to protect the environment in accordance with an act of parliament, to resolve disputes amongst people in their communities in accordance with customary law, to exercise any other functions conferred or imposed on them by an act of parliament.32more interestingly, the constitution also provides that except as provided in an act of parliament, traditional leaders have authority, jurisdiction and control over the communal land or other areas for which they have been appointed, and over persons within those communal lands or areas.33 furthermore, in the performance of their functions, traditional leaders are not subject to the direction or 27j. o. egwurube, traditional rulers and modern local government in nigeria – where the problem lies! university of ife press. 1982) 28emordi, e. c. and osiki, o. m, ‘traditional rule in nigeria: the crisis of relevance in contemporary politics” [2008] (4) journal of history; 67-92 29 wikipedia, http://www.parliament.uk/documents/upload/.hoflb.pdf> accessed 15 november 2020 30see section 68 (1) (b) of the malawi constitution 1994 31 see section 280 of the zimbabwean constitution 1995 32 section 282 of the zimbabwean constitution 33 section 282 (2) of the zimbabwean constitution https://en.wikipedia.org/wiki/lords_spiritual https://en.wikipedia.org/wiki/bishop https://en.wikipedia.org/wiki/church_of_england https://en.wikipedia.org/wiki/lords_temporal https://en.wikipedia.org/wiki/peerage_of_the_united_kingdom https://en.wikipedia.org/wiki/life_peerage http://www.parliament.uk/documents/upload/.hoflb.pdf obi-obiora & asiazobor: the role of traditional institutions in local governance in nigeria page | 62 control of any person or authority, except as may be prescribed in an act of parliament.34the constitution also creates a national council of chiefs.35 in ghana, chieftaincy remains a very critical institution of government and has been upheld as an institution that will remain as an integral part of governance in ghana as a way of preserving the cultural heritage of the ghanaian people. it is the only institution to reckon with when national bureaucratic structures have failed.36 the constitution provides for constitutional status for traditional institution by specifically stating that ‘the institution of chieftaincy, together with its traditional councils as established by customary law and usage, is hereby guaranteed’.37 again, although chiefs who wish to venture into politics are required to abdicate their stool, the constitution creates regional and national houses of chiefs with earmarked functions, and who are expressly prohibited from partisan policies.38 in south africa, the constitution permits national or provincial legislations to establish houses of traditional leaders and establish a council of traditional leaders.39 the constitution also recognizes the traditional institution, status and role of traditional leadership. in the same vain, subject to the constitution and any legislation that specifically deals with customary law, the constitution mandates the courts to apply customary law when that law is applicable.40 in botswana, the constitution establishes a house of chiefs41 to serve as a consultative body to the government in respect of tribal matters. the constitution bestows the house of chiefs with certain constitutional functions including the function42 to consider the copy of any bill referred to it which seeks to alter any of the provisions of the botswana constitution or affect the designation, recognition, removal of powers of chiefs, subchiefs or headmen, the organization, powers or administration of customary courts, customary law, or the ascertainment or recording of customary law, tribal organization or tribal property.43 5. the critique from the literatures on the subject, there seems to be an intense debate that by totally neglecting the traditional institutions in local governance in contemporary african states, including nigeria, there has been a loss of local cohesion in the polity. while it may be tempting to argue that traditional institutions are no longer needed in contemporary local governance however, the relevance of traditional institutions continue to emerge in various sectors of governance. for instance, the relevance which politicians place on traditional rulers, in order to garner local support, during political campaigns appears to be a pointer to the significance of traditional institutions in contemporary times. again, traditional rulers seem to be more accountable and responsible than any other group, but they get little support from official channels notably the state government.44 therefore, one wonders why most african states, including nigeria, has completely neglected traditional institutions in local governance. this neglect has clearly led to several negatives , the present malpractices of the community development associations (cda) in land development shows that there is a dire need to entrust sensitive local functions to traditional rulers. this is also the situation with conflict resolution and management at the local levels. although there are formal mechanisms available for conflict resolutions and management at the local level however, more often than not, these resolutions do not completely resolve the issues at stake and they are capable of generating unending enmity between the conflicting parties. consequently, it has been argued by scholars that the traditional institutions could play a vital role in resolving such local disputes. to this end, in his analysis of the role of traditional institutions in the dispute at the niger delta region of nigeria, kenneth nweke stated that the traditional institutions are charged with legislative, executive and judicial functions. they make laws, execute them and interpret and apply the fundamental laws, customs and traditions of the people for the smooth running of their communities. conflicts are usually managed and resolved based on the customs and traditions of the 34 section 282 (3) of the zimbabwean constitution 35 section 285 of the zimbabwean constitution 36iyeh peter, ‘reconsidering place of traditional institutions under the nigerian constitution: a comparative analysis’ [2014] (31) journal of law, policy and globalization; 145 37 article 270(1) of the ghanaian constitution 1992 38 articles 276 (1) and 272 (9) of the ghanaian constitution 39 section 212 of the south african constitution 1996 40 section 211 of the south african constitution 41 section 77 of the botswana constitution 42 section 85 of the botswana constitution 1966 43 section 88 (2) of the botswana constitution 44j. o. fatile, boundary disputes & communal conflict resolutions: the role of traditional rulers (ziklay consult workshop. 2010); 386 acarelar 2 (2021) page | 63 people.45also, peter ekeh, while proposing his analysis of modern comparative politics in africa made the point that most educated africans are citizens of two publics in the same society. on the one hand, they belong to a civic public from which they gain materially but to which they give only grudgingly. on the other hand they belong to a primordial public from which they derive little or no material benefits but to which they are expected to give generously and do give materially. to make matters more complicated, their relationship to the primordial public is moral, while their relationship to the civic public is amoral. the dialectical tensions and confrontations between these two publics constitute the uniqueness of modern african politics.46 hence, it appears that the traditional institution plays fundamental roles in the local arrangements. this position seems to be supported by the supreme court in umeadi v. chibunze.47 the apex court held in that case that, where parties who believe in the efficacy of a juju resort to oathtaking to settle a dispute, they are bound by the result and so the common law principles in respect of proof of title to land no longer applies since the proof of ownership of title to land will be based on the rules set out by the traditional arbitration resulting to oathtaking. again, nigeria’s president’s new approach in combating insecurity in the country seems to be in consonance with the above. in his bid to combat insecurity in nigeria, the president recently urged state governors to engage with traditional rulers within their states.48 6. conclusion and recommendations there is no doubt that traditional institutions enjoy a fundamental legitimacy in local arrangements. nonetheless, their roles, especially after the local government reform of 1976, appear to be in a constant struggle with the functions of the local government councils. therefore, their powers seem to be considerably restricted by the government. as argued above however, traditional rulers seem to be more accountable and responsible than any other group, but they get little support from official channels notably the state government.49 this is especially obvious when one considers the present massive corruption and malpractices which thrive in contemporary local governance. it is therefore imperative to propose relevant recommendations on the proper roles and functions which traditional institutions could play in local governance in nigeria. firstly, it is recommended that the constitution of the federal republic of nigeria 1999 be altered to accommodate subnational constitutions. this would necessarily give each state of the federation the opportunity to include traditional rulers in local governance in relevant sectors. for instance, in states such as delta state where local crises are predominant, traditional rulers could help to resolve these local disputes as they usually command respect and reverence from the locals.50 secondly, it is recommended that the age grade system which operated [and continue to operate] in several traditional settings should be incorporated into constitutional local governance. the present local government system should be overhauled to accommodate the age grade system. for instance, the local government councillors should be elected from the age grade. this will ensure that responsible individuals who possess great affiliation to the community are elected as councilors. thirdly, it is recommended that the present land tenure system should be overhauled. in this wise, it is proposed that the prominent traditional rulers in each subnational region should be entrusted with the function of land administration in their particular territory. by so doing, in states where land disputes are rampant and usual, the traditional institution could effectively serve as a means to prevent and adequately settle such disputes. it is important to note that this practice has been utilized in zimbabwe and it has thrived. the importance of the traditional institution cannot be undermined, as expressed by peter ekeh who made the point that africans view the civic public (that is, the present government/administrative arrangement) as an object of extortion, where they can constantly benefit without giving back.51 finally, in order to assist the local government to function effectively, it is proposed that a house of chiefs should be established in each local government council. this would help to check and balance the activities of local government chairmen especially as it appears that the councilors in local government councils are often overridden by their chairmen. this is in line with the practice in ghana where regional houses of chiefs are bestowed with earmarked functions. 45kenneth nweke, ‘the role of traditional institutions of governance in managing social conflicts in nigeria’s oil-rich niger delta communities: imperatives of peace-building process in the post-amnesty era’ [2012] (5) (2) british journal of arts and social sciences; 206 46p. p. ekeh, ‘colonialism and the two publics in africa: a theoretical statement’[1975] (17) (1) comparative studies in society and history; 19 47(2020) 10 nwlr (pt.1733) 405 @ 412, ratio 7 48premium times, ‘insecurity: buhari charges governors to work with traditional rulers’, <https://www.premiumtimesng.com/news/top-news/430214-insecurity-buhari-charges-governors-to-work-with-traditionalrulers.html> accessed 9 december 2020 49fatile, ‘boundary disputes & communal conflict resolutions. the role of traditional rule’, p. 386 50l. a. jinaduu, ‘the constitutional situation of the nigerian states’ [1982] (12) publius; 155, 158-59 51ekeh, ‘colonialism and the two publics in africa: a theoretical statement’, p. 3 https://www.premiumtimesng.com/news/top-news/430214-insecurity-buhari-charges-governors-to-work-with-traditional-rulers.html https://www.premiumtimesng.com/news/top-news/430214-insecurity-buhari-charges-governors-to-work-with-traditional-rulers.html agbo: sanctity of chieftaincy declaration on native custom: the attitude of the nigerian courts 7 | p a g e sanctity of chieftaincy declaration on native custom: the attitude of the nigerian courts* abstract leadership is indispensible in all human societies. and leadership in native communities finds expression in the underlying philosophy of native customs firmly anchored on the people’s ontology. the ontological hierarchy has god at the apex, yet assigns leadership roles at various strata in order of primogeniture. thus, there are parents, family heads, community heads, culminating in the incidence of chieftaincy stools. ascension to chieftaincy stools is governed by native customs which are largely unwritten. however, the exigency of modernity, the flexibility of these customs and the dynamism of societal living have influenced the tendency to commit native customs into writing. thus, native customs relating to chieftaincy matters are often encapsulated in written documents commonly referred to as ‘chieftaincy declarations’, or ‘chieftaincy constitutions’, or ‘chieftaincy instruments’ without any particular style or form. whatever the nomenclature, such instruments regulate the selection, election and deposition of chiefs. ordinarily, it is the law that oral evidence will not be admissible to contradict, alter, add to, or vary the content of a written document. in the light of the foregoing, can chieftaincy declarations be said to be sacrosanct and so circumscribed as to be inadmissible of further oral evidence in proof thereof? what has been the attitude of the courts in grappling with this seemingly vexed question? the paper posits that the vacillation of the courts including reliance on ‘curse’ theory in preference to a registered written declaration and a government gazette can be addressed by a thorough review of the existing chieftaincy (appointment and deposition) laws in force in nigeria. this will save the chieftaincy institution from needless disputes, atrophy and insignificance. keywords: chieftaincy declaration, sanctity, native custom, attitude of nigerian courts 1. introduction the incidence of chieftaincy at native law and custom is not anchored on mere fiction. this is because the underlying philosophy of native law and custom is appreciated within the context of native people’s ontology. ontology is the philosophical comprehension of the nature of beings, their existence, basic classifications and interaction. it deals with the fundamental questions about beings and their categorization and relationship within a hierarchy, including their sub-divisions depicting their similarities or otherwise as well as their interactive relations. the whole essence of life for the natives is anchored on their ontology. basically, the natives conceive ‘being’ as being synonymous with ‘force’. in the natives’ conception, force is not an accidental reality. it is more than a necessary attribute of being. it is indeed, the nature of being. thus, force is being and being is force. native ontology envisages a hierarchical ordering of beings according to their primogeniture with god at the apex, following in the hierarchy is man, the living as well as the departed. animals, plants and minerals also find placements in the hierarchical order.1 the foregoing succinctly captures and conveys the native ideas of leadership and chieftaincy. thus, the native chief assumes leadership by individual and or families or communities in order of primogeniture or as local peculiarities may dictate. the life of the chief or even the ordinary native is not limited to his own person, but necessarily extends to all that is fathered by his ‘vital influence’ and thus, ontologically subject to him – posterity, land possessions, beasts and all other goods. the chief as it were, becomes a symbol of native social solidarity. and so, whatever touches or affects any person(s) who depend on him, or his material possession, will be considered an injury to the integrity of his being, the intensity of his life, his vital rank and by implication, his vital force. this scenario also plays out in the interpersonal relations of persons within the ontological hierarchy. this appears to be the case when a government withholds recognition from a person(s) duly ‘elected’ or ‘selected’ in the capacity of a chief. the non-recognition is not just attached to the individual but necessarily extends to members of the native community to which the individual who was to be recognized as chief belongs. this is because natives who are subject to his vital influence in the ontological hierarchy are adversely affected and their life, their being, their vital force and vital rank are similarly distorted. that is the life wire, the inter-twine and vitality in the organic living and ontological conception of the native african. 2. nature and characteristics of native custom ‘custom’ is understood to mean the established or commonly acceptable usage of a people in a given society.2 its acceptance is regarded as binding among the people.3 such custom is taken as obligatory.4 every society from *by chijioke uzoma agbo, phd, lecturer, faculty of law, enugu state university of science and technology (esut). email: chijiagbodlaw@gmail.com 1. plecide temples, bantu philosophy (paris: presence africaine, 1969) 51 – 52. 2. o.n. ogbu, modern nigerian legal system, (3rd edn, enugu: snaap press ltd, 2013) 92. 3. a.o. obilade, the nigerian legal system, (london: sweet and maxwell, 1979) 83. 4. ibid, 84. african customary and religious law review (acarelar) 3 (2022) 8 | p a g e primordial to modern times has a set of customs which regulates its affairs generally from one generation to another. these customs constitute the customary law of the people. the customary law is thus a body of existing rules regulating rights and imposing correlative duties which are fortified by established usage, appropriately applicable to any given cause, matter, dispute, issue or question.5 the customary law is thus, the organic or living law of the people, regulating their lives and transactions.6 these customs are transmitted by oral tradition from generation to generation. it seems that one of the most fundamental characteristics of native custom is that it must be in existence at the material time as a binding custom whenever its use is called into question. thus, if a custom is not in existence at a material time, then it cannot have the obligatory force of law. it must therefore, not be ancient custom of ‘bygone days’.7 such existing custom must of necessity be recognized and accepted by members of the community where it is sought to be relied upon. in the classical elucidation of bairaman fj, it is ‘a mirror of accepted usage’.8 accordingly, a custom must have the assent, recognition and acceptance of the native people to which it applies. lord atkin aptly captures and conveys this point in eshugbayi eleko v officer administering the government of nigeria 9 as follows: ‘… it is the assent of a native community that gives a custom its validity and therefore … it must be shown to be recognized by the native community whose conduct it is supposed to regulate’. native custom is not static. one of its essential characteristics is its flexibility. it is organic and thus, reflects societal dynamism in accordance with changing times. in so doing however, it does not entirely lose its essence. in the words of osborne cj in lewis v bankole 10 : ‘one of the most striking features of west african native custom … is its flexibility. it appears to have been always subject to motives of expediency, and it shows unquestionable adaptability to altered circumstances without entirely losing its character’. lord atkin alluded to this position in the eshugbayi case11 when his lordship observed: ‘their lordships entertain no doubt that the more barbarous customs of earlier days may under the influence of civilization become milder without losing their essential character as customs … .’ citing with approval the holding of osborn cj in lewis v bankole supra, karibi-whyte jsc further explained this element of native custom as follows: ‘one of the characteristics of native law and which provides for its resilience is its flexibility and capacity for adaptation. it modifies itself to accord with changing conditions’12. another attribute of native custom is that it is to a large extent unwritten. native custom is essentially transmitted by oral tradition of recollections of elders, traditional role players and custodians from one generation to another. native custom is thus, not an invention by conscious human commitment as appears to be the case with modern legislative practices and procedures. elias cjn reiterated this point in zaiden v mohssen 13 as follows: ‘customary law is any system of law not being the common law and not being a law enacted by any competent legislature in nigeria, but is enforceable and binding within nigeria as between the parties subject to its sway’. this unwritten attribute of native custom may have influenced the erroneous impression that transactions evidenced in writing were beyond the purview of customary law. it is now the law that such written documents evidencing transactions do not per se exclude the customary law.14 lack of uniformity of native customs applicable to all the people all the time over a particular subject matter is another feature of customary law. thus, the multiplicity and diversity of people imply ipso facto the multiplicity and diversity of their customs and cultures. these multiplicity and diversity of customs sometimes find manifestations even within different towns that make up an ethnic group or even within sub-divisions of such towns and clans.15 this seemingly daunting attribute of native custom notwithstanding, it has continued to be a veritable means of regulating the affairs of native people inter se. 5. see for instance, section 2, customary court law, cap 32, revised laws of enugu state, 2004 (as amended in 2011). 6. obaseki jsc in oyewunmi v ogunesan (1990) 3 nwlr (pt. 137) 182, 207. 7. speed ag. cj in lewis v bankole (1908) 1 nlr 81, 83; karibi –whyte jsc in kimdey v military governor of gongola state & ors (1988) 2 nwlr (pt.77) 445, 461. 8. owonyin v omotosho (1961) 1 all nlr 304, 309. 9. (1931) ac 622; 673. 10. supra, (n.7), 1 nlr 81, 100 – 101. 11. supra, (n.9), 673. 12. kimdey v military governor of gongola state & ors supra (n.6), 461. see also kingdom cj in balogun v oshodi (1929) 10 nlr 36, 57 and weber j in the same case at 53 of the same law report; obaseki jsc in oyewunmi v ogunesan supra (n.6), 267. these cases are in no wise exhaustive on this point. 13. ((1973) 11 sc 1, 2. see also a. allot, essays in african law (london: butterworths, 1970) 61-62; alfa v arepo (1963) wnlr 95 on the unwritten character of customary law. 14. rotibi v savage (1944) 17 nlr 77. 15 . a.o. obilade, (n.3), 83. agbo: sanctity of chieftaincy declaration on native custom: the attitude of the nigerian courts 9 | p a g e 3. chieftaincy declaration and native custom native chieftaincy affairs are regulated and governed by native customs of the people. accordingly, selection, election and deposition of chiefs have from the earliest times been conducted in accordance with native law and custom. these customs have been in the main, largely oral as transmitted across succeeding generations. however, with the passage of time and the encroachment of modernity into native communal living, some communities began to commit their native customs with respect to chieftaincy matters to print in the form of documents commonly called ‘chieftaincy declaration’ or ‘chieftaincy constitution’, or ‘chieftaincy instrument’. this became a form of codification of native law and custom without any particular specification as to style and content. in any event, the purport of the chieftaincy declaration preponderates over the vagaries of nomenclature. the general rule of law is that once there is a written documents in regard to a particular transaction, oral evidence will not be admissible to contradict, alter, add to, or vary the content of the said written document. this is the purport of sub-section (1) of section 128 of the evidence act, 2011. this stance appears to have been adopted by the supreme court in a long line of cases.16 there are however, circumstances under which the parties may depart from the general rule. these circumstances are captured in the proviso to sub-section (1) of section 128 of the evidence act. thus, oral evidence may be admissible to prove fraud, intimidation, illegality, want of due execution, wrongful date, want or failure of consideration, mistake of fact or law, want of capacity of a contracting party and the like. similarly, the existence of any separate oral agreement as to any matter on which a document is silent and the parties did not intend the document to be complete and final on the transaction may also be proved by oral evidence. the existence of any separate oral agreement as a condition precedent to attaching any obligation under the transaction; or of any distinct subsequent oral agreement to rescind or modify any contract or document under the transaction can also be proved by oral evidence. similarly, any usage or custom by which incidents not expressly mentioned in any contract are annexed to contracts of that description, unless the annexing of such incident to such contract would be repugnant to or inconsistent with the express terms of the contract.17 in the light of the foregoing, are chieftaincy declarations so circumscribed as to be inadmissible of oral evidence and native customs to supplement or contradict the purport of such declarations? can it be said that such declarations are sacrosanct and constitute a bar to interference by the courts? these concerns and the attitude of the courts in grappling with these challenges will be examined hereunder. 4. the attitude of the courts to chieftaincy declarations on native custom paragraphs (b) and (e) of sub-section (1) of section 128 of the evidence act appear to be the most approximate basis to interrogate the attitude of the courts in construing the purport of written chieftaincy declarations or similar written documents on native custom. unfortunately, the courts appear to have embarked on vacillation in interpreting chieftaincy declarations. however, the courts have also impliedly applied the purport of the foregoing provisions of the evidence act without expressly mentioning or referring to them in their consideration of actions bordering on chieftaincy declarations. the cases of alhaji bukoye & ors v bosere & ors, 18 ag kwara state & anor v alhaji saka adeyemo & ors 19 ; and alhaji mohammadu esuwoye v alhaji jimoh bosere & ors.20 provide ready paradigms for a discourse of chieftaincy disputes and chieftaincy declarations. unfortunately, the opportunity appears lost in the alter of narrow technicalities. the basic facts of these cases are fairly similar and indeed, arise out of issues of the criteria for ascending the stool of the olofa of offa in kwara state. the last occupant of the olofa of offa stool, oba mustapha olawore olanipekun died in march, 2010 after over 40-year reign thereby rendering the stool vacant. it seems that there are two ruling houses in offa – the olugbense male ruling house and the anilelerin female ruling house. the late oba mustapha was of the anilelerin female ascendency ruling lineage. the kingmakers of offa called for nominations from the olugbense and the anilelerin ruling houses to fill the vacancy. the appellant in esuwoye v bosere supra 21 , alhaji mohammadu esuwoye emerged as the candidate of anilelerin ruling house while the second respondent in the case, alhaji (prince) abdulrouf keji was the candidate of the olugbense ruling house. esuwoye emerged as the winner of the contest and was presented to the 9th respondent, the governor of kwara state for appointment as the new olofa of offa. he was so appointed, given a staff of office and crowned the olofa of offa. following the coronation, the 1st – 3rd respondents instituted suit no. kws/of/15/2010 in the kwara state high court, holden at offa, for themselves 16. ubn ltd v sax (nig.) ltd (1994) 8 nwlr (pt. 361) 150; ugwuegede v asadu & ors., (2018) 5 jscnlr 134, 154 – 155; nnubia v ag rivers state (1999) 3 nwlr (pt. 593) 82; b.o.n. ltd v akintoye (1999) 12 nwlr (pt. 631) 392; agbakoba v inec (2008) 78 nwlr (pt. 1119) 489, 539. 17. section 128(1)(a) – (e) of the evidence act 2011, hereinafter, ‘the evidence act’. 18. (2016) lpelr – 40852 (sc). 19. (2016) lpelr sc 650a/2013 (consolidated) in the supreme court of nigeria. 20. (2016) ngsc 8. 21. ibid african customary and religious law review (acarelar) 3 (2022) 10 | p a g e and on behalf of olugbense ruling house against esuwoye, four kingmakers as well as the attorney general and the governor of kwara state respectively. the claims and counter-claims which originated at the kwara state high court and the decisions therefrom threw up a multiplicity of appeals. thus, a better understanding of the case and the subsequent appeals will be predicated on an understanding of the claims and counter – claims particularly as they relate to the subject under review. the claims are as follows: (a) a declaration that ascension of the stool of olofa of offa is rotational between olugbense (male) ruling house and anilelerin (female) ruling house of offa. (b) a declaration that anileferin ruling house having produced the late oba mustapha olawore olanipekun ariwojoye ii, who ruled for over 40 years, it is now the turn of olugbense ruling house in law and/or equity to produce the olofa of offa on the basis of rotation. (c) a declaration that anilelerin ruling house is precluded from producing the candidate to fill the vacancy created by the death of oba mustapha olawore olanipekun ariwojoye ii from anilelerin ruling house. (d) a declaration that in view of the established chieftaincy custom of offa from 1969, ascension to the vacancy stool of olofa of offa is rotational between the two ruling houses of offa viz olugbense ruling house and anilelerin ruling house. (e) a declaration that by virtue of the decision of kwara state government published in kwara state press release no. 275 of 9th july, 1969 (pursuant to the report of the sawyer commission of enquiry into offa chieftaincy stool) ascension to the stool of olofa of offa is rotational between the olugbense ruling house and the anilelerin ruling house. (f) a declaration that by virtue of the chieftaincy declarations contained in the kwara state of nigeria gazette no. 11 vol. 4 of 12th march, 1970 and legal notices 3 and 4 of 1969 herein, in respect of the process of selection of a candidate for the stool of olofa of offa by anilelerin ruling house and olugbense ruling house respectively, ascension to the stool of olofa of offa is by rotation and not by competition, between the two ruling houses. and on the strength of the foregoing, the claimants urged the court to decline the recognition and installation of esuwoye, the anilelerin ruling house candidate as the olofa of offa and to compel the governor of kwara state to recognize alhaji keji of the olugbense ruling house as the olofa of offa instead. the 1st to 5th defendants including esuwoye (the 2nd defendant) counter – claimed. they asserted that the olugbense ruling house had been disinherited and had indeed, gone into extinction consequent upon the curse and decision of oba olugbense their progenitor to allow only the female lineage of anilelerin to occupy the olofa stool. consequently, since the demise of oba olugbense, it is the female lineage of anilelerin that have been occupying the olofa stool apparently positioning the said family as the main and only ruling house in offa. the counter claimants thus, sought: (a) a declaration that no rotational policy exists in offa between the ruling houses in offa on the appointment of olofa of offa whenever the stool becomes vacant. (b) a declaration that the only ruling house that exists in offa for the purpose of appointing an olofa of offa is the anilelerin ruling house. (c) a declaration that the kwara state government gazette no. 11, vol. 4 of 12th march, 1970 and any other notices as it recognizes olugbense as a ruling house in offa is null and void as it is contrary to history, custom and tradition of offa on offa chieftaincy. the counter-claimants also prayed for an order of perpetual injunction to restrain the governor of kwara state from recognizing the olugbense ruling house as having a right to ascension of the stool of olofa of offa. the learned trial judge with whom the apex court agreed found that the exhibits tendered and the oral evidence adduced at trial do not support the claim that there was rotation in the ascension to the olofa stool. the apex court however, preferred to rely on exhibit dfc2, the sawyer commission of enquiry report. the said report found and relied on the ‘curse’ theory said to have been placed on the male descendants of oba olugbense by the oba himself, disinheriting them and denying their ascension to the olofa stool. this was said to be because of their crass neglect from saving him (the oba) from an inferno. the old oba was said to have been rescued by his agbo: sanctity of chieftaincy declaration on native custom: the attitude of the nigerian courts 11 | p a g e daughter’s son from the anilelerin family. thenceforth, the anilelerin family became the sole ruling house of offa and the status of olugbense family as a ruling house became defunct. consequently, the apex court declared the kwara state government gazette, exhibit ‘j’ as null and void to the extent that it recognized the existence of two ruling houses in offa and their right to ascension to the olofa of offa stool on rotation basis as being contrary to native law and custom of offa. the supreme court also granted a perpetual injunction restraining both the governor and the attorney general of kwara state from treating or recognizing the olugbense family as a ruling house for the purpose of ascension to the olofa stool. in other words, from the decision of the apex court in these cases, chieftaincy declaration is not sacrosanct afterall. the courts could inquire into their conformity with the native customs of the people whose chieftaincy stool is called into question. apparently akin to the foregoing position, the supreme court in oba adebanjo mafimisebi & ors v prince macaulay ehuwa & ors 22 , mustapher jsc relying on the holding of onu jsc in ajakaiye v idehai 23 took the view that there is no doubt that the court cannot promulgate a chieftaincy declaration. however, the authorities appear to support the view that the courts have the competence to see whether a chieftaincy declaration (such as exhibit ‘a’ in the instant case) is really in conformity with prevailing customary law and accordingly declare it invalid if it is not.24 notwithstanding the foregoing, onnoghen jsc (as he then was) in the oba adebanjo mafimisebi case supra25 took the review that the law is now settled to the effect that where a declaration in respect of a recognized chieftaincy is validly made and registered, the matter therein stated shall be deemed to be the customary law regulating the selection of a person to be the holder of the recognized chieftaincy to the exclusion of any other customary usage or rule. the registered declaration is therefore a declaration of the tradition, customary law and usages pertaining to the selection and appointment to a particular chieftaincy stool which necessarily dispenses with the need of proof by oral evidence of such tradition, custom and usages each time the need arises to determine the matter. the views of justice onnoghen suggest that a registered chieftaincy declaration was sacrosanct and is deemed to be the customary law regulating the chieftaincy in question. this, accordingly to the learned justice, dispenses with the need of further proof by oral evidence. this, with all due respect, appears to be a palpable departure from the pre-existing position of the apex court. justice onnoghen further clarifies the foregoing by stating the duty of the court with regard to a registered declaration. that duty is to apply the provisions of a chieftaincy declaration to the facts of the case as established by evidence particularly as the court has no power to assume the function of making or amendment of customary law governing the selection and appointment of traditional chiefs. however, according to his lordship, it is the business of the court to make a finding of what the customary law is and apply the law for the purpose of the claims for declaration.26 the critical question then is, if as justice onnoghen held, a registered chieftaincy declaration is deemed to be the prevailing customary law and need no other proof by oral evidence, how then could his lordship also hold that the court has a duty to find out what the customary law is? if there is no need of oral evidence in proof of customary law in the face of a ‘sacrosanct’ registered chieftaincy declaration seemingly encapsulating same, how else can the court find out? could it be said in the circumstance that the court will possibly transform into a soothsayer to be able to find out the true and prevailing customary law in the absence of oral evidence? this position, seems with all due respect, to be an avoidable vacillation in acrobatic fashion. the foregoing notwithstanding, the court still held that a chieftaincy declaration once made under a subsisting chiefs law, remains the customary law in force in the area which it covers and continues to have effect until it is amended, and the amended declaration is registered.27 the supreme court further qualifies the purport of a chieftaincy declaration with respect to fair hearing. in adigun v ag oyo state28 the apex court held that the making of a chieftaincy declaration is purely an administrative act and not a function exercisable by the court. where however, there is a registered chieftaincy declaration in relation to a particular chieftaincy, the production of the declaration would suffice. but where in the process of the making of the said declaration those who ought to be heard were not so heard, or made in breach of the right to fair hearing the court can interfere, as the administrative body is bound to observe the rules of fair hearing29. in aiyegbaju v 22. (2007) 29 scnlr 410, 434. 23. (1994) 8 nwlr (pt. 364) 504, 532 – 533. 24. egumwense v amaghizenwen (1993) 8 nwlr (pt.315) 1, 4. 25. (n.22) 456. see also oladele v aromolaran ii (1996) 6 nwlr (pt. 453) 180. 26. ibid, 457. see also ikiwe v edijero (2001) 18 nwlr (pt. 745) 446, 478 – 479; adigun v ag oyo state (1987) 1 nwlr (pt.53) 678; afolabi v governor of oyo state (1985) 2 nwlr (pt.9) 734, 738. 27. afolabi v governor of oyo state supra, (n.26). 28. (1987) 1 nwlr (pt. 53) 678. 29. onnoghen jsc in oba adebanjo mafimisebi case supra, (n.22), 457 – 458. african customary and religious law review (acarelar) 3 (2022) 12 | p a g e adesina 30 the supreme court also held that the court can set aside a registered declaration. the competence of the court to set aside or declare a registered chieftaincy instruments null and void is settled and beyond doubt. this, according to the apex court is irrespective of whether the said declaration enjoys the status of a subsidiary legislation or statutory instrument. this is particularly reinforced by the vires of the court to declare invalid an act of the national assembly, let alone, a mere statutory instrument. onnoghen jsc clarified the apparent misconception that once a registered declaration is made, it cannot be set aside or declared invalid, holding that it can, where for instance, it offends any constitutional or statutory provision31. in fasuade v babalola 32 the supreme court per uwaifo jsc stated the law as follows: ...where a declaration has been validly made in respect of a recognized chieftaincy and registered, it represents the applicable customary law regulating the selection and appointment of a candidate to a vacant chieftaincy; and the provisions of such a registered declaration should prevail until amended. see ogundare v ogunlowo (1997) 6 nwlr (pt. 509) 360. the registered declaration is the admissible and subsisting declaration. see adigun v ag oyo state (supra); oladele v aromularan ii (supra); its existence from the relevant chiefs law has statutory force. see ayoade v mil. gov, ogun state (1993) 8 nwlr (pt. 309) iii. in the oba adebanjo mafinisebi case 33 , it was found per onnoghen jsc that exhibit a, the chieftaincy declaration was not exhaustive of the customary law of the people of ugbo with respect to the ascension of the olugbo of ugbo stool. the said exhibit a neither advocates the rotational succession nor the hereditary succession as the true reflection of the customary law. it was thus, convenient for the apex court to declare it null and void. it appears that the courts have largely relied on inherent powers than express statutory powers in ascertaining the sacrosanctity of chieftaincy declarations in relation to native custom. thus, the express provisions of the evidence act in sub-section (1) of section 128 and particularly paragraphs (b) and (e) thereto have never been relied upon by the courts to justify their stance. in oladele v aromularan ii supra the supreme court clearly held that a chieftaincy declaration is a declaration of the tradition, customary law and usage in relation to the selection and appointment to a particular chieftaincy stool and necessarily dispenses with the need of proof by oral evidence of such tradition, customary law and usage each time such determination comes into question34. it is trite that the court has no power to assume the function of making or amending the customary law governing the selection and appointment of traditional chiefs, yet it has powers to ascertain what the customary law is, and to apply same for the purpose of a claim for (chieftaincy) declaration. this is the purport of such cases as ikiwe v edijero supra and adigun v ag oyo state supra. in the latter case, the apex court introduced the element of fair hearing, holding that a breach thereof in the making of a chieftaincy declaration would activate the court to interfere with the chieftaincy instrument. it follows from the dictum of uwaifo jsc in fascade v babalola supra 35 that as long as a chieftaincy declaration is validly made and registered, it remains sacrosanct unless and until it is subsequently amended and the amended version also duly registered. ‘validity’ in the making of such declaration will obviously include observance of the rules of fair hearing and due compliance with requisite laws such as the chiefs and traditional rulers laws as well as the constitution of the federal republic of nigeria 1999 as amended. it is worthy of note that the tussle over the olofa of offa stool is amazingly interesting. perhaps the most outstanding development in the olofa of offa chieftaincy cases36 is the startling reliance on a mere ‘curse’ theory as the basis for swaying the apex court to depart from the purport of a written chieftaincy declaration and the kwara state government gazette issued in that respect. what after all is a curse? a curse could be defined as a solemn utterance intended to invoke a supernatural power to inflict harm or punishment on someone or something.37 it could also be ascribed to any expression embodying with it the assertion that some form of adversity or misfortune will befall or attach to some other entity. such entity could include one or more persons, a place, or an object. in particular, ‘curse’ may refer to such a wish or pronouncement made effective by a supernatural or spiritual power, such as a god or gods, a spirit, or a natural force, or else as a kind of spell by magic or witchcraft. in the latter sense, a curse can also be called a hex or a jinx. in many belief systems, the curse itself or rituals associated therewith are considered to have some causative force in the result.38 30. (1992) 2 nwlr (pt. 590) 163. 31. oba adebanjo mafimisebi case supra, (n.22) 458. 32. (2003) 11 nwlr (pt. 830) 25. 33. supra, (n.21), 460 – 461. 34. see also afolabi v governor of oyo state supra, (n.26). 35. (n.32). 36. alhaji bukoye & ors v bosere & ors supra, (n.18); ag kwara state & ors v alhaji saka. adeyemo & ors supra, (n.19); and alhaji mohammadu esuwoye v alhaji jimoh bosere & ors supra, (n.20). 37. <hittps//www.google.com/search> accessed on 29/04/2019. 38 .< http//en.m.wikipedia.org/wiki> accessed on 29/04/2019. agbo: sanctity of chieftaincy declaration on native custom: the attitude of the nigerian courts 13 | p a g e it seems that the study of forms of curses comprise a significant proportion of the study of folklore. and no less is the deliberate attempt to levy curses often associated as part of the practice of magic.39 magic, witchcraft, curses and the like, have no place in our jurisprudence. they, like fetish juju oaths constitute part of the moribond or dying culture in nigeria in the light of constitutional imperatives.40 by way of analogy, proof of curses, like magic, witchcraft, fetish oaths and the like, lack legal exactitude and are at best an exercise in fetish superstition, myths, mystery and spirituality. the graphically illuminating dictum of kutigi jsc (as he then was) in marcus nwoke & ors v ahiwe okere & ors41 is quite apposite. according to his lordship: both sides in the contested suit called as their witnesses natural and real human beings to say what they knew … . all the witnesses were available for cross – examination and reexamination on their testimonies. this was as it should have been under the law. the juju method as cheap and quick as it might appear to have been, had its own disadvantages. for example, you cannot put a juju in the witness box for any purpose. its activities, method and procedure would appear to belong to the realm of the unknown eventhough the effects may be real in the end. the worst of all is that a juju ‘judgment’ or ‘decision’ is not subject to an appeal like the one we are all witnessing now in this suit. so that unless and until the juju descends to the level on which we can all understand its workings, it will be difficult to enforce its ‘decision’ in a law court. we have come a long way from the oracle. the views expressed by kutigi jsc aptly apply mutatis mutandis to proof of ‘curses’. the supposed effects of a curse cannot be established under acceptable legal processes and procedure. it is in this wise, with all due respect, that the decision of the supreme court on this score in the olofa case is though final, yet fallible. it seems that the conclusion of the whole matter is encapsulated in the audacious thunderbolt of the supreme court which came vide the case of aiyegbaji v adesina supra.42 the apex court therein held that the court can set aside a chieftaincy declaration since it has the vires to declare an act of the national assembly invalid, notwithstanding the apparent masquerading of a chieftaincy declaration as a subsidiary legislation or statutory instrument. and so, despite the vacillation and acrobatics, a chieftaincy declaration is not sacrosanct. 5. the way forward perhaps, the starting point of the way forward is to amend the chiefs (appointment and deposition) laws in such a way as to subject any chieftaincy declaration to an ‘approval referendum’ before it is accepted by the government for registration. this will guarantee the input of all members of a community who are subject to the said declaration in the selection and appointment of anybody to their vacant chieftaincy stool. this will obviate the necessity of subjecting the said chieftaincy declaration to a further fair hearing test after due registration. it will also make them so circumscribed as to be inadmissible of further oral evidence to prove some other aspects of native custom on chieftaincy matters supposedly excluded. this approach in our view, will accord with the dictum of uwaifo jsc in fasuade v babalola supra43. it will also guarantee a more consistent approach to construction of chieftaincy declarations by the courts. it is also important to note that the courts ought to be more circumspect in interpreting and giving effect to written chieftaincy declarations. in this wise, the courts must resist the pressure to supplant the role of the people or their king makers in the choice of successors to their chieftaincy stools under the regime of their native customs. this is particularly because of the ontological ripple effects it could visit on the community in question. thus, the courts must not make a practice of declaring who should or should not be the ‘rightful’ or ‘anointed’ successor to a chieftaincy stool. the courts should at best make a finding anchored on ordering a new election or selection in accordance with established native custom as encapsulated in ‘validly made and duly registered’ chieftaincy declaration. by so doing, the court would have satisfied the requirements of both the law and native custom. the existing chieftaincy (appointment and deposition) laws in nigeria appear to reflect in the main, a colonial orientation of an ‘omnipotent’ and ‘omniscient’ imperial governor as an infallible ‘mr. know all’. for instance, sub-section (3) of section 3 of the chiefs (appointment and deposition) law44 provides as follows: ‘in the case of any dispute, the governor after due inquiry and consultation with persons concerned in the selection shall have 39. ibid. 40. see c.u. agbo, ‘validity of oath taking at customary law arbitration: the constitutional question, unizik law journal, vol. 7, no. 1, 2010, 284. 41. (1994) 5 nwlr (pt. 343) 159, 173. see also ndoma – egba jca in iwuchukwu v anyanwu (1993) 8 nwlr (pt. 311) 307, 323. 42. (n.30). 43. (n.22). 44. cap 9, laws of kwara state 2006. african customary and religious law review (acarelar) 3 (2022) 14 | p a g e the final say as to whether the appointment of any chief has been made in accordance with customary law and practice’. the foregoing provision flows directly from the ‘open ended’ discretion conferred on the colonial governor by the chiefs (appointment and deposition) law of northern nigeria45. there is urgent need to amend these laws to reflect modern realities. there is scarcely any doubt that recognition of chiefs is a veritable source of political manoeuvres and patronage and a fortiori, the greatest weapon employed to intimidate respectable persons into submission. although such provisions were probably intended to discourage or curtail a spate of litigations on chieftaincy disputes, however, they could also be invoked to the detriment of particular individuals and ultimately prejudice the development of the chieftaincy institution for the greatest good of the greatest number of persons in the community46. besides, the governor as a human being is fallible and could be susceptible to preferences in clear manifestation of bias. 6. conclusion there is no doubt that chieftaincy institution in native communities forms part of their humanity reinforced by their underlying philosophical ontology. there is therefore the need to consolidate the utility and development of that institution for the good of native people viewed from their prism. the apex court as the guardian of our jurisprudence can ensure certainty of the status of written chieftaincy declarations over the vagaries of expediency and wild theories. this will save the chieftaincy institution from needless disputes, degeneration and insignificant. 45. cap 20, laws of northern nigeria 1963. see also the recognition of chiefs law, cap 112, laws of eastern nigeria 1963, s.3. 46. see a.g. karibi-whyte, ‘the incidence of an established aristocracy: chieftaincy institution among the kalabari’ in t.o. elias et al (ed), african indigenous laws, (enugu: government printer, 1975) 83 84. nwachukwu: rights of children under the united nations convention on the rights of the child: the challenges of implementation 45 rights of children under the united nations convention on the rights of the child: the challenges of implementation* abstract nations around the world have ratified the united nations convention on the rights of the child, and passed various legislations to safeguard the most vulnerable members of the society including children, but the effects of these laws have not been felt especially in most third world nations where cases of indiscriminate death of children, child abuse, child trafficking, child prostitution and all forms of violence against children are on the rise. in nigeria there exists the child rights act of 2003, the children and young person’s act of 1943 which legislations was meant to provide against child labour, sexual exploitation of children, violence against children, child trafficking etc. in ghana another western african nation there exists the children’s act of 1998 which is meant to advance the legal rights of children and maintenance of children, prevent child labour and child abuse etc. findings reveal that despite the existence of these laws these societal ills have maintained a steady climb. there is also a lacklustre enforcement of the laws relating to the welfare of children in these jurisdictions. this article set out to research on the factors responsible for the lacklustre implementation of children protection laws, and the means of strengthening and enforcing the right of children to life and preventing violence against children in all forms. keywords: child’s rights, united nations convention on the rights of the child, implementation, challenges 1. introduction states exist to take care of citizens and prevent them from falling into harm1 child protection which is an aspect of this obligation is meant to save children from harm that may arise from family backgrounds.2 the rights to life, good health, education, family life, good standard of living, play and recreation, protection from abuse and harm are the essence of children’s rights.3 the united nations convention on the rights of the child provides the overall interest of a child shall be a primary consideration in all administrative purposes and that safeguarding a child is important for that child’s welfare and provides for the duties of the child’s parents and the duty of the state to take appropriate legislative measures.4 the convention also stipulated that parties to the convention shall by all means be it legislative, administrative, social or educational safeguard against all forms of violence against children, child abuse, neglect of children, and exploitation of children etc.5 the convention in its 54 articles itemized the political, civil, cultural, economic and social rights of children.6 in the uncrc, children’s rights are categorised into rights to provision, protection and participation.7 it was held by the house of lords that even in absence of local legislations that the laws should be construed in such a manner as to reflect a commitment to the welfare of children which the united kingdom pledged to abide by ratifying the uncrc.8 the supreme court of vanuatu in molu v molu9 held no legislation is required to implement article 3(1) of the uncrc as the welfare of the child is of essence. finally, the supreme court of south africa held the uncrc ratified in 1995 in that jurisdiction obligates state parties to safeguard the rights of children.10 there is no general agreement of what constitutes a child in all jurisdictions, but in most jurisdictions around the world, it’s generally provided that a child is anyone who has not reached their 18 th birthday.11 under ghanaian * by ifeanyi nwachukwu, 36 goulden street, salford, united kingdom. email: ceeverolaw@yahoo.com. tel: +2348039626563 1 jill duerr berrick, marit skivenes & joseph n. roscoe, ‘public perception of child protection, children’s rights, and personal values: an assessment of two states’ (2023) 15, 106960, children and youth services review <https://doi.org/10.1016/j.childyouth.2023.106960> accessed august 13, 2023 2 ibid 3 ohchr, ‘report on human rights violations faced by children of african descendants’ (international human rights council, may 18, 2022) < https://www.ohchr.org/sites/default/files/2022-05/report-on-human-rights-violationsfaced-by-children-of-african-descendants.pdf> accessed august 13, 2023 4 convention on the rights of the child, (1989) article 3 5 uncrc article 4 6 elspeth webb et al, ‘using the un convention on the rights of children to improve the health of children’ (2019) 19, 9, 430-434, paediatrics and child health <https://doi.org/10.1016/j.paed.2009.05.006> accessed august 16 2023 7 gabaikanngwe ethel mambo & kinyanjui godfrey gichuhi, ‘an analysis of the implementation of children's rights in the digital world: a case study of botswana’ (2023) 219. procedia computer science< https://doi.org/10.1016/j.procs.2023.01.330> accessed august 6, 2023 8 smith v smith & another (2006) ukhl 35 9 molu v molu (1998) vusc 15 10 government v grootboom (2001) (1) sa 46 (cc); ildc 285 (za 2000) 11gov.uk, ‘case management guidance’. (united kingdom government, 12 october, 2022) <https://www.gov.uk/guidance/case-management-guidance/definitions> accessed july 29, 2023 mailto:ceeverolaw@yahoo.com https://doi.org/10.1016/j.childyouth.2023.106960 https://doi.org/10.1016/j.paed.2009.05.006 https://www.gov.uk/guidance/case-management-guidance/definitions african customary and religious law review (acarelar) 4 (2023) 46 law, a child is a person who has not attained the age of 18.12 in the constitution of nigeria a full age is defined being 18 years and above.13 the uncrc provides as follows: ‘for the purposes of the present convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.’14 this generally accepted 18 year birthday cut off for a child as agreed by most jurisdictions is irrespective of the appearance of the child, their achievements in life or even if they have joined the armed forces. for example, the united kingdom government still extends all child benefits to a child even if they joined the armed forces or has established themselves and living independent of their parents at the age of 16.15 despite all the measures taken to curtail it, violence against children is on the rise world over especially after the covid-19 pandemic.16 according to the united nations, there have been more than 266,000 cases of severe violence against children in conflict zones in africa, asia pacific, the middle east and latin america in the last 16 years.17 there have been recorded deaths or maiming of more than 10,000 children in the yemeni war since the start of the war in the year 2015.18 in the afghan conflict, the story is far worse. the war in afghanistan can be said to be one of the worst theatres of violations of the right to life of children in recorded history. it is reported that over 28,500 died in the afghan war, a casualty figure representing 27 percent of all deaths of children in armed conflict globally.19 unicef agrees that violent or ill treatment of children, abuse of children and general exploitation of children can be seen as a part of growing up of children in west africa and central africa as nearly all the children experience violence from their family and community as a means of discipline.20 in the first 6 months of the year 2022, there was a recorded increase of extreme violence against children that was estimated to be as high as the total recorded violations of children’s rights in the whole of 2021.21 these violations recorded in 2021 were higher by 85 percent in comparison with the year 2020.22 in the west african country of mali there was a recorded 480 confirmed cases of conscription of children into armed groups and in niger there was also 200 grave cases of violence against children from july to september 2022.23 an estimated 200,000 children are victims of child trafficking in the west african nations of ghana, nigeria, mali, benin etc.24 there is a noticeable increase in child sexual abuse in africa than obtainable in other parts of the world and the reason for this is factors relating to social change and gender inequalities in african societies.25 in the world sphere, the extent of violence against children has taken a concerning dimension.26 experiences of emotional, physical, and sexual violence and neglect have been reported by half of all children in the year 2017.27 the united states centre for disease control (cdc) states child abuse may affect the wellbeing of a child, health or their development in the long run and includes all acts of neglect or abuse of a person below the age of 18 by anyone responsible for the care of that child.28 the cdc further posits that there are reports of child neglect or abuse in 1 in 7 kids in the united states and about 1750 children lost their life to child abuse in the year 2020.29 the united kingdom office for national statistics (ons) states that child abuse 12 children’s act 1998, section 1 13 cfrn 1999 as amended, section 29 (4) 14 uncrc article 1 15 ibid gov.uk 16 amiya bhatia et al 2021, violence against children during the covid19 pandemic’ (world health organisation, january 2021) <https://doi.org/10.2471%2fblt.20.283051> accessed august 11, 2023 17 unicef, ‘grave violations of children’s rights in conflict on the rise around the world, warns unicef’ (united nations children emergency fund, december 31, 2021) <https://www.unicef.org/press-releases/grave-violations-childrensrights-conflict-rise-around-world-warns-unicef> accessed july 20, 2023 18 ibid 19 ibid 20 unicef, ‘child protection’, (united nations children emergency fund, nd) <https://www.unicef.org/wca/what-wedo/child-protection> accessed july 29, 2023 21unicef, ‘extreme jeopardy’, united nations children emergency fund report, march 2023) <https://www.unicef.org/wca/media/8861/file/en_aaff_extreme_jeopardy.pdf> accessed july 29, 2023 22 ibid 23 ibid 24 aderanti adepoji, ‘review of research and data on human trafficking in sub saharan africa’, (international migration, june 8, 2005) <https://doi.org/10.1111/j.0020-7985.2005.00313.x> accessed july 19, 2023 25 eben badoe, ‘a critical review of child abuse and its management in africa’ (2017), 7, s32-s35, african journal of emergency medicine <https://doi.org/10.1016/j.afjem.2017.09.002> accessed august 10, 2023 26 karen devries et al, ‘who perpetrates violence against children? a systematic analysis of age-specific and sexspecific data’ (2018) 2: e000180 bmj paediatrics open <10.1136/bmjpo-2017-000180> accessed august 10, 2023 27susan hillis et al global prevalence of past-year violence against children: a systematic review and minimum estimates’ (2016) 137: e20154079, paediatrics <https://doi.org/10.1542/peds.2015-4079> accessed 19, july, 2023 28 cdc 2022, ‘preventing child abuse and neglect’ (centre for disease control, 1 january, 2022) <https://www.cdc.gov/violenceprevention/pdf/can/can-factsheet_2022.pdf> accessed august 3, 2023) 29 ibid https://www.unicef.org/press-releases/grave-violations-childrens-rights-conflict-rise-around-world-warns-unicef https://www.unicef.org/press-releases/grave-violations-childrens-rights-conflict-rise-around-world-warns-unicef https://www.unicef.org/wca/what-we-do/child-protection https://www.unicef.org/wca/what-we-do/child-protection https://doi.org/10.1111/j.0020-7985.2005.00313.x https://doi.org/10.1016/j.afjem.2017.09.002 https://doi.org/10.1542/peds.2015-4079 https://www.cdc.gov/violenceprevention/pdf/can/can-factsheet_2022.pdf nwachukwu: rights of children under the united nations convention on the rights of the child: the challenges of implementation 47 can have an impact later in life as about 52 percent of adults who experienced abuse prior to their 16th birthday were later victims of domestic abuse in their life time.30 child abuse is very difficult to track or measure because most cases go unreported and the abuse takes several forms.31 the canadian 2019 general social survey reported that about 64 percent of the survey respondents reported unwholesome parenting acts like emotional abuse, corporal punishment, and neglect while 22 percent reported physical abuse by parents or other adults taking care of them.32 maltreatment of a child may lead to negative outcomes like ill health and other negative socio economic impacts later in life.33 all these notwithstanding, there are no parallels between commitments made to implement laws made to protect children and making their rights a reality.34 there is lack of adequate facilities and interventions necessary to address the issues surrounding the rights of children.35 the laws made to secure the rights of children in the digital age are sometimes vague and lack adequate implementation.36 in the uk the children and family act of 2014 which act was a landmark legislation geared towards protecting and improving the lives of children and their family was as admitted by the government a failed legislation due to lack of implementation.37 the major challenge in protection of children’s rights is not in making the laws that protect children but in putting them into operation.38 all these raises the questions what are the major challenges to implementation of children protection laws in the world and west africa in particular. why is violence, abuse, trafficking all kinds of ill treatment of children on the rise despite the laws made to curb them. finally, what are the effects of the socio cultural background of a child, or societal norms play in the enforcement of the rights of children, and how can the human rights of children be implemented effectively. there is need to research on the proper ways to enforce children protection laws and implement the human rights of children. 2. highlight of children’s rights under the uncrc right to life, survival and development a discussion on the right of life is very essential because this right is the parent of all other rights. all other rights known to man flows from the right to life in the first instance since it is only a living person that can be afforded a set of human rights. the uncrc is a treaty of the united nations organisation which provides for a comprehensive set of rights for persons below the age of 17.39 in the 54 articles of the uncrc can be found a motley of children’s economic, social, civil and political rights.40 adopted in the year 1989, and came into force in the year 1990, the uncrc is the primary document evidencing children’s right world over.41 it is the most ratified human right treaty in human history and have transformed the lives of children all over the world.42 the uncrc duly provided for the right to life of children which emphatically is the most important right of children 30ons 2020, ‘child abuse in england and wales’: (office for national statistics, january 14, 2020) <file:///c:/users/ceevero/downloads/child%20abuse%20in%20england%20and%20wales%20january%202020.pdf> accessed august 5, 2023 31 ibid 32 gss-canadian safety, general social survey: detailed information 2019 (statistics canada, may 12, 2021) <https://www23.statcan.gc.ca/imdb/p2sv.pl?function=getsurvey&sdds=4504> accessed august 5, 2023 33 danielle bader and kristyn frank ‘what do we know about physical and non physical maltreatment in canada?’ (statistics canada, january 25, 2023) <https://doi.org/10.25318/36280001202300100001-eng> accessed july 30, 2023 34 waage, trond. ‘challenges in implementing child rights – a call for innovative governance for children’ (childfriendly justice, 1st edition, leiden, the netherlands: brill | nijhoff, 2010) < https://doi.org/10.1163/9789004297432_012 > accessed july 29, 2023 35 peter lachman et al, ‘challenges facing child protection’ (2002) child abuse & neglect, 26, 587-617 <https://doi.org/10.1016/s0145-2134(02)00336-8> accessed july 19, 2023 36 ibid gabaikanngwe ethel mambo 37 ‘house of lords children and families act 2014 committee, ‘children and families act 2014: a failure of implementation’,(house of lords, december 6, 2022) <https://publications.parliament.uk/pa/ld5803/ldselect/ldchifam/100/100.pdf> accessed august 5, 2023 38 tara m. collins & laura h.v. wright ‘the challenges for children’s rights in international child protection: opportunities for transformation, world development (2022), 159,106032 <https://doi.org/10.1016/j.worlddev.2022.106032> accessed august 2, 2023 39gov.uk, ‘united nations convention on the rights of the child (uncrc): how legislation underpins implementation in england’(uk government, march 15, 2010) <https://www.gov.uk/government/publications/united-nations-convention-onthe-rights-of-the-child-uncrc-how-legislation-underpins-implementation-in-england> accessed august 10, 2023 40 ibid elspeth webb et al 41 crae, un convention on the rights of the child’ (children rights alliance england, january 1, 2023) < https://crae.org.uk/our-guide-childrens-rights-and-law/laws-protecting-childrens-rights/un-convention-rights-child> accessed august 12, 2023 42 unicef, ‘convention on the rights of the child’ (united nations children emergency fund, january 1, 2023) < https://www.unicef.org/child-rights-convention> accessed august 15 2023 https://doi.org/10.1163/9789004297432_012 https://doi.org/10.1016/s0145-2134(02)00336-8 https://doi.org/10.1016/j.worlddev.2022.106032 https://www.gov.uk/government/publications/united-nations-convention-on-the-rights-of-the-child-uncrc-how-legislation-underpins-implementation-in-england https://www.gov.uk/government/publications/united-nations-convention-on-the-rights-of-the-child-uncrc-how-legislation-underpins-implementation-in-england african customary and religious law review (acarelar) 4 (2023) 48 or anyone human person.43 the right to life is also recognised in the universal declaration of human rights (udhr), the world’s cornerstone human rights instrument. thus ‘everyone has the right to life, liberty and security of person’.44 this provision goes beyond just deprivation of life, but covers such things as liberty of the person and security. thus, it is a violation of article 3 of the udhr if one does not enjoy fundamental freedoms within the society, or is oppressed or restricted by state institutions from expressing their chosen way of life and enjoying their civil and political rights. with regard to children the uncrc specifically provides for the right to life as follows: ‘states parties recognize that every child has the inherent right to life’45 corollary to this is the provision in the uncrc that mandates state parties to ensure to the greatest extent that every child shall have the right to survival and development.46 the right to survival and development of a child is just as indispensable as the right of a child to live. it underscores the duties of state parties to ensure basic amenities and equal opportunities are provided for children to thrive and develop and realise their full potentials.47 the constitution of nigeria recognises that everyone has the right to life which cannot be deprived of such a person with the exception of execution of a judicial sentence for a criminal offence for which an accused person has been found guilty. 48it was held by the european court of human rights in oman v united kingdom the law not only mandates governments to refrain from unlawful or intentional deprivation of the rights to life but make efforts towards protecting the precious lives of its citizens.49 a locus classicus on the right to life of children and the implications of depriving children this hallowed right is the famous street children’s case. in this matter involving the kidnapping and torture of four children and their subsequent death and the outright murder of the fifth child by the security forces of the state of guatemala, the inter american court of human rights held the state liable in the death of the five children, positing the essence of the right of life as enshrined in the american convention on human rights. the court also stressed the right of life encompasses not just the right not to be deprived of one’s life without due process of law but the opportunities provided by the state for one to live their life in dignity. part of the ruling of the court is reproduced as follows: the right to life is a fundamental human right, and the exercise of this right is essential for the exercise of all other human rights. if it is not respected, all rights lack meaning.... in essence, the fundamental right to life includes not only the right of every human being not to be deprived of his life arbitrarily, but also the right that he will not be prevented from having access to the conditions that guarantee a dignified existence. states have the obligation to guarantee the creation of the conditions required in order that violations of this basic right do not occur.50 the right of life is all encompassing, as the nucleus of other rights known to law all other rights depend on it as human rights can only be enjoyed by a living person.51 the protection of the right to life has been stretched inculcating provisions recognising the advancements of the 21st century. such practices as indiscriminate killings by use of drones in conflicts, destruction of the environment and climate change, inadequate provision of health facilities, extra-judicial killings, use of live ammunition on protesters by the armed forces etc represents serious threats to the enjoyment of the right of life in the present and near future.52 right to protection against abuse, violence and neglect within article 19 of the uncrc is a host of provisions geared towards protecting children from all forms of violence, ill treatment and harm. the article copiously provides as follows: ‘states parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, 43 petter grahl johnstad, ‘the international regime of drug control may violate the human right to life and security (2023) 113, 103960, international journal of drug policy <https://doi.org/10.1016/j.drugpo.2023.103960> accessed august 21, 2023 44 udhr article 3 45 uncrc article 6(1) 46 uncrc article 6(2) 47 united nations human rights office of the high commissioner, ‘universal declaration of human rights at 70: 30 articles on 30 articles article 3’ (united nations, november 8, 2018) <https://www.ohchr.org/en/pressreleases/2018/11/universal-declaration-human-rights-70-30-articles-30-articles-article-3> accessed august 2, 2023 48 constitution of the federal republic of nigeria 1999 as amended, section 33 49 osman v united kingdom [1998] echr 101 50 case of the ‘street children’ villagran-morales et al. v guatemala (1999) iacrthr, series c no 63, iachr 17 51 amos enabulele, ‘the right to life or the right to compensation upon death: perspectives on an inclusive understanding of the constitutional right to life in nigeria’(2014) 3,1, the green institute<https://greeninstitute.ng/jsdlp/2020/3/10/the-right-to-life-or-the-right-to-compensation-upon-death-perspectives-onan-inclusive-understanding-of-the-constitutional-right-to-life-in-nigeria>august 2 accessed 2023 52 ibid united nations human rights office nwachukwu: rights of children under the united nations convention on the rights of the child: the challenges of implementation 49 including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.’53 the uncrc further admonished state parties to take steps towards realizing this objective to wit: such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement54 a broad definition of violence against children would include all forms of harm against children like mental torture, sexual abuse and other forms of exploitation, and other forms of indirect harms like neglect.55 the uncrc article 19 stresses a complete regard for children’s right to dignity of the human person, and respect of their personal and physical integrity.56 this article in effect do away with harmful practices against children which are meted out to them as a form of correction from family backgrounds in pretence that they are in the best interest of the child. such practices as corporal punishment are in effect violations of a child’s right to human dignity and physical integrity.57 the united nations children emergency fund, (unicef) agrees that corporal punishment is a violation of a child’s right to dignity and physical integrity58 such punishments which can be physical or psychological in nature involve the infliction of pain or discomfort on a child, or use of aggressive words, intimation, threats, humiliation etc to discipline children or to compel compliance. another major from of violence against children is sexual violence. this encompasses all forms of forced or non consent sex or sexual acts with a child by a person in care of a child, or a neighbour, exposure to sexual comments or action by a friend or another adult or adults, compulsion to perform a sexual act for financial rewards from an adult, forcing or coercing a child to expose his or her sexual parts, or forcing a child to have a view of sexually explicit materials, rape or defilement of a child etc.59 the impacts of sexual abuse of children is enormous and may have effects on the child even at adulthood. such impacts may be in form of post traumatic stress disorder, fears, behaviour issues, low self esteem etc.60 closely related to sexual abuse of children is child trafficking. it is an illegal practice in which children are exploited for the purposes of using them for sex or labour. 27 percent of trafficked people globally are children and mostly females who are sold or lured into the practice either forcefully or with fake promises of a better living conditions or education.61 most trafficked children are usually exploited and kept in unsafe environments, treated like slaves, and not given adequate food or shelter, and restricted from contacting their family.62 a major impact of human trafficking is loss of education opportunities and other amenities needed for the growth and advancement of the child leading to an uncertain future.63 finally, child labour which is also related to child trafficking is any kind of work that interferes with the childhood of a child, their human dignity, and is an anathema to their mental and physical development.64 however a distinction must be made between what constitutes child labour and normal work done by children within a legally permitted age in different jurisdictions. the international labour organisation, (ilo) agrees when such works or activities do not affect the health of a child, their personal development or their education, such are permissible as they sometimes help 53 uncrc, article 19(1) 54 uncrc article 19(2) 55 christian whalen, ‘article 19: the right to protection from all forms of violence’ (2022) in: vaghri, z., zermatten, j., lansdown, g., ruggiero, r. (eds) monitoring state compliance with the un convention on the rights of the child. children’s well-being: indicators and research, 25. springer, cham <https://doi.org/10.1007/978-3-030-84647-3_30> accessed august 12, 2023 56 ibid 57 esteban ortiz-ospina & max roser, ‘violence against children and children’s rights’ (our world in data, november 1, 2019) <'https://ourworldindata.org/violence-against-rights-for-children'> accessed august 12, 2023 58 ibid 59 ibid 60 kendall-tackett kathleen, linda williams & david finkelhor, ‘impact of sexual abuse on children: a review and synthesis of recent empirical studies’ (1993) 113(1), 164–180, psychological bulletin <https://doi.org/10.1037/00332909.113.1.164> accessed august 15, 2023 61 save the children, ‘child trafficking is a crime – and represents the tragic end of childhood’ (save the children, nd) < https://www.savethechildren.org/us/charity-stories/child-trafficking-awareness> accessed august 14, 2023 62 ibid 63 ibid 64 ilo, ‘what is child labour’,(international labour organisation, nd) < https://www.ilo.org/ipec/facts/lang-en/index.htm#:~:text=the%20term%20%e2%80%9cchild%20labour%e2%80%9d%20is,harmful%20to%20children%3b %20and%2for> accessed august 14, 2023 african customary and religious law review (acarelar) 4 (2023) 50 children develop themselves and gain experiences and requisite skills that can aid them in the job market or be responsible members of the society in the near future.65 the right to learning and education the right of children to education is a comprehensive term and encompasses several factors like availability and access to education, the effectiveness and purpose of education, education on human rights, the rights of children in education and the role of parents with regard to education.66 the united nations educational, scientific and cultural organisation (unesco) posits education is a fundamental right which purpose is to raise people out of poverty, reduce inequalities, and enhance sustainable development.67 article 28 of the uncrc comprehensively provided for education as follows: states parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: (a) make primary education compulsory and available free to all; (b) encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need; (c) make higher education accessible to all on the basis of capacity by every appropriate means; (d) make educational and vocational information and guidance available and accessible to all children;(e) take measures to encourage regular attendance at schools and the reduction of drop-out rates. education serves several purposes including helping people to acquire skills, knowledge and information that will equip them to be useful to the society.68 education is vital in a society as it helps children to rise above abuse and neglect.69 an estimated 224 million youth and children do not have access to education worldwide for socio cultural and economic factors.70 it is everyone’s right to have access to learning as they are entitled to which is corollary to respect of their right to the dignity of the human person among a host of other rights.71 children’s right to parental relationships article 18 of the uncrc recognises the duties of a parent towards their child, and the role the state should play to ensure this duty is carried out. such duties include the upbringing of the child and his or her development, and ensuring the welfare and best interests of the child is apriority. there is further a duty on the government to assist parents in carrying out these duties through support for care services. finally, if a child cannot be sufficiently supported by his or her parents, there is a duty on the state to provide such support taking into account the attributes of the child like ethnic, religious and cultural background and the child’s spoken language.72 right of children to be heard freedom of expression and participatory rights are essential rights of children in the digital age.73 most jurisdictions around the have incorporated the right to freedom of express in their grundnum and it is a very essential right under international law.74 the right to freedom of expression symbolises the foundations of a 65 ibid 66 laura lundy & patricia o’lynn, ‘the education rights of children. (inkilkelly, u., liefaard, t. (eds) international human rights of children. international human rights. springer, singapore) <https://doi.org/10.1007/978-981-10-31823_11-1> accessed august 15, 2023 67 unesco, ‘the right to education’ (united nations educational, scientific and cultural organisation, nd) <https://www.unesco.org/en/righteducation#:~:text=education%20is%20a%20basic%20human,social%2c%20economic%20and%20cultural%20reasons> accessed august 13, 2023 68 sujata bhan & suzanne rodricks, ‘indian perspective on child's right to education’, (2012) 69,367-376, procedia social and behavioral sciences,< https://doi.org/10.1016/j.sbspro.2012.11.422> accessed august 15, 2023 69 tavassoli_naini manuchehr, ‘education right of children during war and armed conflicts’ (2011) 15, pages 302-305 procedia social and behavioral sciences <https://doi.org/10.1016/j.sbspro.2011.03.090> accessed august 15, 2023 70 ibid unesco 71 reis monteiro a., ‘the right of the child to education: what right to what education?’, (2010) 9, 1988-1992 procedia social and behavioural sciences <https://doi.org/10.1016/j.sbspro.2010.12.433> accessed september 1, 2023 72 uncrc 1989, article 20 73 73 claudia lohrenscheit ‘curriculum and human rights’ (3rd ed, international encyclopedia of education, elsevier 2010) p. 287-292, <https://doi.org/10.1016/b978-0-08-044894-7.00050-6 > accessed june 28, 2023 74 diana voerman-tam, arthur grimes, nicholas watson, the economics of free speech: subjective wellbeing and empowerment of marginalized citizens’(2023) 212,260-274,journal of economic behavior & organization <https://doi.org/10.1016/j.jebo.2023.05.047> accessed september 1, 2023 https://doi.org/10.1016/b978-0-08-044894-7.00050-6 nwachukwu: rights of children under the united nations convention on the rights of the child: the challenges of implementation 51 society that enjoys basic freedoms and liberty and is the focal point of human dignity and independence.75 article 13 of the uncrc provides: ‘the child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s choice.’ just like adults, children have the right to their own opinions, and the right to freely express it in company of others.76 children have freedoms which must be accorded to them including right to citizenship, freedom of speech, association and expression, and freedom of thought and religion.77 it’s good to note the freedom of children is not an absolute right but is subject to legally justified restrictions like respect for the rights and reputation of others,78 and for the preservation of public interest.79 3. challenges to implementation of the rights of children under the uncrc the uncrc has been said as being very challenging to implement and as having an overly ambitious agenda when it comes to enforcement of children’s rights and safeguarding them from violence and societal risks like natural disasters, child trafficking, poverty, inequalities, etc.80 the uncrc is one of the most widely ratified treaties in the world, recognised and domesticated by virtually all countries of the world, but suffers from lacklustre implementation as most governments around the world pay merely but lip service to their human rights obligations.81 apart from lack of political will, various factors plague the implementation of the uncrc. lack of awareness about the convention among families and the general population, inadequate social services, influences of social change etc. are among several factors militating against the implementation of the uncrc 82 the extent of the steps taken towards implementation of the uncrc and the resources put into these efforts, and the all-round effectiveness of the systems tasked with the realization of this objective determines the extent of the wellbeing of children in the long run.83 steps taken towards implementation of the uncrc and its effectiveness and results are not on all fours in all parts of the world as they vary from country to country, and region to region.84 thus what applies in the implementation of the uncrc in sub-saharan africa might be different in western jurisdictions like the united kingdom and canada. it is trite that legal protections of children are more effective in these aforementioned nations than in their african counterparts like nigeria, niger, somalia, mali, liberia, ghana etc. a major theatre of the violation of the rights of children is in the african continent. this is compounded by existence of several regional and tribal conflicts, child trafficking, child prostitution and abuse, and child labour. poverty, lack of basic amenities, bad government and corruption, influences of socio cultural norms and family backgrounds are among the biggest factors militating against the implementation of children right treaties in sub-saharan africa. though several governments in africa have initiated policies and legislations on child protection, this has not been accompanied with a commitment to enforcement.85 some of these governments lack the resources and strong institutions required to achieve these goals. for this and other reasons, child rights violation and violence against children have gotten worse in africa. it has been reported that about half of all children in africa have experienced some forms of physical abuse and in some parts of the african continent sex abuse of female children has been on the rise as upto four in ten female children are victims of sexual violence before they turn 15.86 with 41.8 of girls and 39.1 of boys suffering neglect from their caregiver, africa have highest rate of neglect of children in the whole world.87 in the 75 lansdown, g., vaghri, z. article 13: the right to freedom of expression. in: vaghri, z., zermatten, j., lansdown, g., ruggiero, r. (eds) monitoring state compliance with the un convention on the rights of the child. children’s wellbeing: indicators and research, (2022) vol 25. springer, cham. <https://doi.org/10.1007/978-3-030-84647-3_8> accessed september 1, 2023 76 humanium, ‘understanding children’s right to freedom’ (humanium, nd) <https://www.humanium.org/en/fundamentalrights/freedom/> accessed august 30, 2023 77 ibid 78 uncrc 1989, article 13(2)(a) 79 uncrc 1989, article 13(2)(b) 80 john tobin, judy cashmore, ’thirty years of the crc: child protection progress, challenges and opportunities’ (2020) 110, 1,104436, child abuse & neglect <https://doi.org/10.1016/j.chiabu.2020.104436 > accessed august 30, 2023 81yinka olomojobi, human rights and civil liberties in nigeria (lagos: princeton publishing ltd, 2016) p1 82ec cox, ‘the implementation of the united nations convention on the rights of the child: global commitments and local realities,’ p n g med j. 2000 mar-jun; 43(1-2):18-23. pmid: 11407612> august 22, 2023 83 yehualashet mekonen, melhiku tiruneh, ‘implementation of the convention on the rights of the child and its effect on child well-being’ (in: ben-arieh, a., casas, f., frønes, i., korbin, j. (eds) handbook of child well-being. springer, dordrecht. <https://doi.org/10.1007/978-90-481-9063-8_95> accessed august 19, 2023 84 ibid 85 ibid 86 apevac, ‘new data shows violence against children is rising across the african continent’ (african partnership to end violence against children, july 21, 2021) < https://www.end-violence.org/articles/new-data-shows-violence-againstchildren-rising-across-african-continent> accessed august 13, 2023 87 ibid african customary and religious law review (acarelar) 4 (2023) 52 west african country of nigeria, about 66% of girls and 58% boys under the age of 18 have experienced violence in the home front.88 bullying cases are on a steady rise in central africa where half of all the children within the ages of 13-15 suffer bullying at school.89 the united nations children emergency fund reports violence against children, abuse and exploitation of children has become an unfortunate part of childhood in west and central africa.90 according to unicef, about one in three girls have been violently disciplined or hit before the age of 15 in this same region, and one in ten of them either raped or encountered some form of sex abuse.91 under age marriage is another severe violation of the rights of children in the west and central regions of africa where about 4 in 10 girls within the ages of 20-24 are married before reaching the age of 18.92 female genital mutilation also affects one fourth of all girls in this region which also has one the highest rates of teenage pregnancy in the entire world.93 finally, children in conflict zones in africa has not fared better as the lives of children are put in jeopardy, with some children killed, injured, and some recruited into the armed forces to join the war efforts.94 there is also hunger, malnutrition, lack of basic amenities for health, schooling and play, attacks on educational facilities, abduction of children for ransom or political purposes etc. 4. conclusion and recommendations the united nations convention on the rights of the child, the uncrc is the most significant children rights legislation in the world ratified by almost all governments around the world. in its 54 articles are contained a motley of children’s rights. the most important right of children is the right to life and survival, from which every other right known to man proceeds. other rights of children under uncrc include the right to protection against abuse, violence and neglect, the right to learning and education, the right to parental relationship, and the right of children to express themselves and be heard. despite the ratification of the uncrc by most nations of the world, there is a noticeable rise in violence against children, child abuse, trafficking of children, abduction of children, among other societal vices against children, especially in developing nations in africa caused by lack of political will on the part of government, weak government institutions, poverty, lack of basic amenities etc. there is a need to rise to these challenges towards securing a sustainable and enduring future for children and the society. protection of the rights of children is essential for a just, stable and prosperous future for the society and future generations. the laws made to protect children are yet to gain traction in most parts of the world especially in third world countries. there is need to take further steps towards enforcing the laws upholding the rights of children in the society. this paper recommends as follows: (i) lack of political will towards enforcing the rights of children is among the major setbacks to the fight against violence against children around the world, and in african nations specifically where issues of child protection are relegated to the background in the pursuit of political interests. all these coupled with corruption, self enrichment and lack of accountability that diverts funds meant for empowering agencies concerned with children issues to private pockets. bogus claims are made by government claiming various unverifiable achievements in reality the menace is on the rise. there is an urgent need to elect children friendly and responsible governments that will pay more than lip service to children protection issues. (ii) corollary to electing responsible governments is the need to build strong government institutions especially agencies of government that are concerned with safeguarding and empowering children. proper funding of health and social institutions of government through the right channels and setting up channels that will preclude diversion of funds meant for this purpose. there is need to set up a ministry meant exclusively for children affairs where this does not exist (iii) a very powerful tool towards implementing the rights of children especially under the uncrc is to empower the children themselves through education. education not only secures a child future by giving them the knowledge and skills to be useful to themselves and society but gives them an awareness of their rights under the law, how to assert their rights and when to do so. (iv) orientation and awareness programs are very effective tools in the fight against violence against children, child abuse and other social vices against children. this is very easily achievable in today’s digital world over the social media on which can be found a majority of children in the digital age. information over the social media spread like wild fire and can reach millions of children within a very short time. when children are fully aware of their rights under the law, it becomes an uphill task to take it away from them. 88 ibid 89 ibid 90 unicef, ‘child protection’, (united nations children emergency fund, nd) <https://www.unicef.org/wca/what-wedo/child-protection> accessed august 13, 2023 91 ibid 92 ibid 93 ibid 94 ibid nwachukwu: rights of children under the united nations convention on the rights of the child: the challenges of implementation 53 (v) finally, the judiciary have a major role to play in terms of interpretation of children protection laws in such a way that the interpretation takes into account the overall welfare of the child involved above any other factor. this is very hard to obtain in african societies where the influences of socio-cultural norms are felt in the pronouncements of the judiciary in such a way as to put harmful traditional practices ahead of such interpretations that will be in the best interest of the child involved. this judicial attitude should be frowned at as judges are admonished to interpret child right laws like the uncrc within the spirit and letters of the legislation and not colour their judgements with harmful traditional practices that are detrimental to children. igbineweka & enakireru: customary law in nigeria: interrogating the issue of judicial notice 55 | p a g e customary law in nigeria: interrogating the issue of judicial notice* abstract this concept of igiogbe has since then gained notoriety and prominence. these controversies, increase in litigations and counter-litigations over the subject matter of igiogbe has brought about a shift in the practice but the binis still claim igiogbe practice is and should be rigidly adhered to. an igiogbe is the house where a bini man lived, died and usually in most cases is buried. it devolves absolutely without any contradiction on his eldest surviving son as soon as the burial rites are performed and completed by him (in rare instances supported by family members) in accordance with the bini customary burial rites. the work critically examined the prove of customary law, validity of customary law in nigeria, the constitutionality of customary law / customary law as a grundnorm. this work found that igiogbe practice is still relevant in modern benin kingdom and that the discriminatory practice against the women folk in relation to this concept is alarming and ridiculous. the work is concluded with some recommendations. amongst which includes mass enlightenment campaigns being mounted by the ministry of women affairs at both the federal and state levels to enlighten the people about the hardship and injustice which discriminatory customary laws impose on women and that any customary law that is discriminatory against women should be declared invalid on the grounds that it is unconstitutional and repugnant to natural justice, equity and good conscience. keywords: igiogbe, customary validity, evidence, and judicial notice 1. introduction a custom is a question of fact which has to be proved by evidence.1 the court may however take judicial notice of a custom if it has been acted upon by the higher courts several times. custom is a question of fact which has to be pleaded and proved in the first instance by calling witnesses acquainted with the native custom until the particular custom, by frequent proof in the courts, has become so notorious that the courts will take judicial notice of it. once a particular custom has been so frequently proved before the courts as to be well established and notorious, it is no longer necessary to bring evidence to prove that particular custom.2 thus, customary law may be proved by evidence or it may be judicially noticed if it has become notorious by frequent proof in the courts or has been frequently followed by the courts.3 a law need not be proved before a court.4 it is a question of fact that needs to be proved. in nigeria, the received english law; rules of common law, doctrine of equity and provisions of statutes need no proof before being accepted by a court of competent jurisdiction.5 this is so because judges are deemed to know the law and judicial notice has been taken of them.6 regrettably, rules of customary laws do not enjoy the same treatment as the received english laws. the courts in nigeria treat customary law as a question of fact and evidence that must be proved.7 two reasons can be adduced for this position. the first is that judges were originally not trained in customary laws. secondly, customary laws are largely unwritten and vary from culture to culture.8 2. proof of customary law there are two ways of establishing customary laws. these are; by proof9 and by judicial notice.10 section 16(1) of the evidence act11 provides that ‘a custom may be adopted as part of the law governing a particular set of admissible circumstances if it can be judicially noticed or can be proved to exist by evidence’. section 16(2) of *by faith osehuotue igbineweka, llb, bl, llm, department of private and property law, college of law, western delta university, oghara, delta state, nigeria. e-mail faithigene3@gmail.com, 08099441410, 09122728799; and *e. o. enakireru, phd, senior lecturer, department of jurisprudence and international law, college of law, western delta university, oghara, delta state, nigeria. e-mail: ericomo61@yahoo.com, 08050617977, 07062041722. 1 kolajo a. a., customary law in nigeria through the cases, (spectrum books limited, ibadan, 2000). 25-26. 2 ibid. 3 ibid. 4 aguda t. a., the law of evidence, (fourth edition, spectrum law publishing limited, ibadan, 2001), p. 156. 5ibid and osinbajo y. o. and kalu u. a., ‘towards a restatement of nigerian customary laws’ available on http://martinslibrary.blogspot.com/2014/08/customary-law-characteristics.html accessed on 22nd may, 2021. 6 aguda t. a., the law of evidence, 157. 7 osinbajo y. o. and kalu u. a., ‘towards a restatement of nigerian customary laws’ available on http://martinslibrary.blogspot.com/2014/08/customary-law-characteristics.html accessed on 22nd may, 2021. 8 wipo: world intellectual property organization, 2013, ‘customary law, traditional knowledge and intellectual property: an outline of the issues’, available at https://www.google.com.ng/search?newwindow=1&site=&source=hp&q=meaning+of+customary+law&oq=meaning+of+c ustomary+law&gs_l=hp.3...4984554.4991352.0.4991685.24.18.0.0.0.0.0.0..0.0....0...1c.1.64.hp..24.0.0.j-sa0mgwhgs accessed on 17th june, 2021. 9 section 14 (1) of the evidence act, cap. e14, lfn, 2004 (as amended). 10 ibid. 11 cap. e14, lfn, 2004 (as amended). mailto:faithigene3@gmail.com mailto:ericomo61@yahoo.com http://martinslibrary.blogspot.com/2014/08/customary-law-characteristics.html http://martinslibrary.blogspot.com/2014/08/customary-law-characteristics.html https://www.google.com.ng/search?newwindow=1&site=&source=hp&q=meaning+of+customary+law&oq=meaning+of+customary+law&gs_l=hp.3...4984554.4991352.0.4991685.24.18.0.0.0.0.0.0..0.0....0...1c.1.64.hp..24.0.0.j-sa0mgwhgs https://www.google.com.ng/search?newwindow=1&site=&source=hp&q=meaning+of+customary+law&oq=meaning+of+customary+law&gs_l=hp.3...4984554.4991352.0.4991685.24.18.0.0.0.0.0.0..0.0....0...1c.1.64.hp..24.0.0.j-sa0mgwhgs african customary and religious law review (acarelar) 3 (2022) 56 | p a g e the evidence act12 provides that ‘the burden of proving a custom shall lie upon the person alleging its existence’. section 17 of the evidence act13 provides that ‘a custom may be judicially noticed when it has been adjudicated upon once by a superior court of record’. it follows therefore from the purport of the provisions of sections 16 and 17 of the evidence act that in ascertaining customary law, two modes are basically employed. these are by proof and by judicial notice. the import of the above provision is that if a custom is judicially noticed then its existence need not be proved. however, if a custom has not attained notoriety to be judicially noticed then its existence must be proved by the person alleging its existence by evidence. there are different modes of proving customary law. customary law can be proved by adducing oral evidence, expert opinion, non-expert opinion, assessors, use of textbooks and manuscripts.14 this is informed from the provisions of section 70 of the evidence act15 that provides thus: in deciding questions of customary law and custom, the opinions of traditional rulers, chiefs or other persons having special knowledge of the customary law and custom and any book or manuscript recognized as legal authority by people indigenous to the locality in which such law or custom applies, are admissible. another mode of ascertaining and proving customary law is by taking judicial notice of such custom. section 17 of evidence act16 provides as follows: ‘a custom may be judicially noticed when it has been adjudicated upon once by a superior court of record’. the word ‘may’ as used in the above provision implies the discretionary power of the court. judicial discretion is vested in the court to determine whether to judicially notice a custom or not. it is the opinion of this work that this discretionary power drawn from the provisions of the above section of the evidence act17 is one of the problems hindering the development of customary law in nigeria. this is so because the court may decide to use the discretionary power adversely by calling on the plaintiff to prove the existence of a custom which had already been proven before. when certain facts and matters are so clearly established before a court there is no need to give formal evidence of their existence.18 thus if certain rules and institutions of customary law becomes obvious to the courts they need not be proved.19 the courts take judicial notice of them and they become matters of law and not fact.20 in considering proof of customary law, recourse must be made to emphasize proof of customary law before customary courts and proof of customary law before non-customary courts. in appraising proof of customary law before customary courts, section 16(1) of the evidence act21 provides that ‘a custom may be adopted as part of the law governing particular set of circumstances if it can be noticed judicially or can be proved to exist by evidence’. however, by virtue of the provisions of section 1 (4) (c) of the evidence act,22 the evidence act does not apply to judicial proceedings in or before native court unless the governor-in-council shall by order confer upon any or all native court jurisdiction to enforce any or all of the provisions of the act. with regard to the above, there is no evidence that a state in the country has extended the application of the evidence act23 to customary or area courts as provided by the above law. consequently, the modes of establishing customary law as provided by the evidence act does not apply to customary and area courts. judges of customary and area courts are assumed to know the custom of their people. therefore, customary law is not required to be proved before customary or area courts. thus, in nsemfo v. ababio,24 the west africa court of appeal held that it is not obligatory for a native court to require a custom to be proved through witnesses if the members of such courts are familiar with the custom. the high court of western region of nigeria took a contrary position in fijabi v. ogumola25 when it set aside the decision of a customary court on the ground that the customary court without proof applied a rule of customary law. this decision was however over ruled by the supreme court on appeal. the supreme court was of the view that if the defendant/respondent wishes to challenge the president’s ruling on specific points of customary law, he 12 ibid. 13 ibid. 14 ibid. 15 ibid. 16 ibid. 17 section 17 of the evidence act, cap. e14, lfn, 2004 (as amended). 18 osinbajo y. o. and kalu u. a., ‘towards a restatement of nigerian customary laws’ available on http://martinslibrary.blogspot.com/2014/08/customary-law-characteristics.html accessed on 22nd may, 2021. 19 babatunde i. o., ‘people perish for lack of knowledge: revisiting of the role of custom in the development of nigerian legal system’ available on http://moj.ekitistate.gov.ng/online-journal/people-perish-for-lack-of-knowledge-revisiting-of-therole-of-custom-in-the-development-f-nigerian-legal-system/ accessed on 29th august, 2021. 20 ibid. 21 cap. e14, lfn, 2004 (as amended). 22 ibid. 23 ibid. 24 (1947) 12 w.a.c.a 127. 25 (1955-56) w.e.n.l.r. 133. http://martinslibrary.blogspot.com/2014/08/customary-law-characteristics.html http://moj.ekitistate.gov.ng/online-journal/people-perish-for-lack-of-knowledge-revisiting-of-the-role-of-custom-in-the-development-f-nigerian-legal-system/ http://moj.ekitistate.gov.ng/online-journal/people-perish-for-lack-of-knowledge-revisiting-of-the-role-of-custom-in-the-development-f-nigerian-legal-system/ igbineweka & enakireru: customary law in nigeria: interrogating the issue of judicial notice 57 | p a g e ought to give notice that he would apply to call evidence on the point and this notice is at the discretion of the judge to grant to disallow. a different dimension was displayed in the case of ehigie v. ehigie.26 the respondent was the eldest son and the appellant the eldest daughter of one ehigie edise who died intestate. the question before the customary court was which of the two children of the deceasedhis eldest son or his eldest daughter was entitled to succeed to his property according to bini native law and custom. no evidence was led before the court by either party to the dispute as to what the benin customary law of inheritance was. the president of the customary court grade a entered judgment in favor of the respondent. the court said that it was a fundamental principle of benin customary law of inheritance that the eldest surviving male child of the deceased who performed all the custom and funeral ceremonies is the one entitled to inherit all of the deceased’s properties except those the deceased had made gifts of before his death. on appeal to the high court, fatayi williams j., held that the ends of justice will be better served if a customary law which has not been ‘so frequently before the court as to be well established and notorious’ is proved by evidence in customary courts. in distinguishing this case from that of nsemfo v. ababio,27 the learned judge pointed out that the customary court that decided the latter case was a court of the paramount chiefs of the gold coast. the members are familiar with their own native customary law so it was not necessary to prove the customary law of the community before the court. on the other hand, the court that decided the former case was a grade a customary court presided over by a president statutorily qualified to do so as a legal practitioner irrespective of whether he is from that locality or not. a different interpretation was adopted by belgore c.j., in usman waziri v. musa ugye & ors.,28 where he observed that ‘the area court of the area of action is presumed to know the native law and custom of the area, it is a rebuttable presumption and until it is rebutted, this statement of the law must not be interfered with’. the court towed a similar line in reaching the decision in edokpolor v. idehen29 where the plaintiff brought an action for trespass against the defendant before the benin grade a customary court. the president of the court prevented the defendant from adducing evidence of the custom which was different from the one pleaded by the plaintiff. according to the president, as evidence of english law is not required in english courts, so also evidence of customary law is not required in customary courts. the following propositions can be inferred from decided causes on the matter before customary courts. customary law is a question of law and need not be proved to the court. however, this is only a rebuttable presumption. the presumption can be rebutted by showing that the law of the court is not the law prevailing in the area of jurisdiction of the court, that the members of the court are from an area different from the area of jurisdiction of the court, that the area of jurisdiction of the court is so wide that the members of the constituent areas and the members of the customary are for other reasons not versed in the custom sought to be relied upon. in edo state, it has now been statutorily provided that a customary court is presumed to know the appropriate customary law of the area within its jurisdiction.30 on the other hand, in non-customary courts, customary law is a question of fact to be proved by adducing sufficient evidence by the party who alleges the existence of the custom. this much is stated by the provisions of section 16(2) of the evidence act31 that governs the matter. the evidence act32 provides that ‘a custom may be adopted as part of the law governing a particular set of admissible circumstances if it can be judicially noticed or can be proved to exist by evidence.’33 section 18 (1) of the evidence act34 provides that ‘where a custom cannot be established as one judicially noticed, it shall be proved as a fact’. the requirement of proof of customary law to non-customary courts is based on the assumption that the judges in non-customary courts are not versed in customary law. a court is required by virtue of to take judicial notice of a law.35 however, these provisions do not extend to rules of customary law. there are different modes to prove customary law in non–customary courts36. these modes by which customary law is proved in non-customary court includes; adducing oral evidence, testimonies of witnesses of expert opinion, use of assessors and use of textbooks or manuscripts.37 section 68(1) of the evidence act38 provides that ‘when the court has to form an 26 (1961) 1 n.l.r. 842. 27 (1947) 12 w.a.c.a 127. 28 (1977) n.w.l.r (pt. 129) 130. 29 (1961) w.n.l.r. 11. 30 order 10 rules 6 (3), customary court rule of bendel–state, 1978. 31 cap. e14, lfn, 2004 (as amended). 32 ibid. 33 ibid, section 16 (1). 34 cap. e14, lfn, 2004 (as amended). 35 ibid, sections 73 and 74. 36osinbajo y. o. and kalu u. a., ‘towards a restatement of nigerian customary laws’ available on http://martinslibrary.blogspot.com/2014/08/customary-law-characteristics.html accessed on 22nd may, 2021. august, 2015and section 70 of the evidence act, cap. e14 lfn, 2004 (as amended). 38 cap. e14, lfn, 2004 (as amended). http://martinslibrary.blogspot.com/2014/08/customary-law-characteristics.html african customary and religious law review (acarelar) 3 (2022) 58 | p a g e opinion upon a point of…customary law or custom. or … the opinions upon that point of persons specially skilled in such … customary law or custom … are admissible’. section 68(2) of the evidence act39 provides that ‘persons so specially skilled as mentioned in subsection (1) of this section are called experts’. section 70 of the evidence act40 provides that: in deciding questions of customary law and custom, the opinions of traditional rulers, chiefs or other persons having special knowledge of the customary law and custom and any book or manuscript recognized as legal authority by people indigenous to the locality in which such law or custom applies, are admissible. in all these, the burden of proof of a custom is on the person alleging its existence. that is, the onus is on the person or party who claims a particular evidence to establish the custom.41 in ibrahim v. barde,42 the supreme court held admissible, a book called the abuja chronicle, which according to some witnesses, is regarded in suleja as authentic account of the history and culture of the people of the area. for the book to satisfy the requirement of the evidence act,43 such book must have gained sufficient eminence to warrant its citation to the court. secondly, the parties should have introduced it in evidence. another means of proof of customary law in non – customary courts is by the use of assessors. the use of assessors is common in northern nigeria and alien to southern nigeria. assessors sit with judges for the sake of assisting them with expert knowledge of the matter under consideration. within the ambit of the provision of section 68(2) of the evidence act,44 they are deemed as experts. they are neither a part of the court nor witnesses. they merely sit with judges and proffer opinion when their opinions are sought by the courts. these opinions are however not given in the open court but in chamber. they cannot testify before the court but may put any question to the witnesses through or by leave of the judge. the evidence act provides that ‘in cases tried with assessors, the assessors may put any question to the witnesses through or by leave of the judge which the judge himself may put and which he considers proper’.45 laws are not required to be proved in courts because it is the requirement of the court to take judicial notice of them.46 however, in non-customary courts, customary law is initially a question of fact which must be proved by evidence. once proved and a judicially noticed, it may not be proved again. this position is governed by the provisions of section 17(1) of the evidence act47 which provides that ‘a custom may be judicially noticed when it has been adjudicated upon once by a superior court of record’. this means that the custom must have been acted upon by a court of superior jurisdiction. the earlier court should have been acted upon the custom to such extent as would occasion justice to infer that the persons or class of persons concerned in that area look upon the custom under consideration. when certain facts and matters are so clearly established before a court there is no need to give formal evidence of their existence.48 thus if certain rules and institutions of customary law becomes obvious to the courts, they need not be proved.49 the courts take judicial notice of them and they become matters of law and not fact.50 for example igiogbe concept under the bini customary law of inheritance has attained that status of notoriety51 that the courts (not the courts in the area were this custom is practiced) in nigeria even the apex court are to a very large extent aware of its existence and had taken judicial notice of it.52 3. validity of customary law in nigeria the customary laws of nigerians where initially recognized by the british when they first came to nigeria. they however did not leave them intact all through the period of colonization. they enacted ordinances which abolished and/or abrogated some of the customary laws which they regarded as barbaric and primitive.53 as part of colonial agenda, the british government super-imposed english laws on the indigenous laws of the various nigerian cultural groups and christened it customary laws which were not to be applicable in all situations. the 39 ibid. 40 ibid. 41 section 17(2) of the evidence act, cap. e14, lfn, 2004 (as amended). 42 (1996) 9 n.w.l.r. (pt. 474) 513. 43 cap. e14, lfn, 2004 (as amended). 44 ibid. 45 section 247 of the evidence act, cap. e14, lfn, 2004 (as amended). 46 aguda t. a., the law of evidence, (fourth edition, spectrum law publishing limited, ibadan, 2001), p. 156. 47 cap. e14, lfn, 2004, (as amended). 48 osinbajo y. o. and kalu u. a., ‘towards a restatement of nigerian customary laws’ available at http://martinslibrary.blogspot.com/2014/08/customary-law-characteristics.html accessed on 22nd may, 2015. 49 aguda t. a., the law of evidence, (fourth edition, spectrum law publishing limited, ibadan, 2001), p. 157. 50 ibid. 51 arase v. arase (1981) n.s.c.c. 101. 52 ibid. 53 niki t., sources of nigerian law, (mij professional publishers limited, lagos, 1996), p. 111. http://martinslibrary.blogspot.com/2014/08/customary-law-characteristics.html igbineweka & enakireru: customary law in nigeria: interrogating the issue of judicial notice 59 | p a g e notion of customary law itself is seen as an ideology of colonial domination. nigerian indigenous laws were to be screened before they can attain the status of customary law.54 before a court could observe and enforce the observance of a rule of customary law, such rule must pass the repugnancy test. that is, it must not be repugnant to natural justice, equity and good conscience. it must also pass the incompatibility test, meaning that it must not be incompatible with any law for the time being in force.55 these provisions have its root in the supreme court of lagos established in 1876 as a supreme court of record by virtue of supreme court ordinance no 4 of 1876. the court was empowered to administer the common law, the doctrine of equity and statute of general application in force in england as at july 24, 1874. with respect to customary law, section 19 of the supreme court ordinance no. 4 of 1876 provides that: nothing in this ordinance shall deprive the supreme court of the right to observe and enforce the observance, or shall deprive any person of the benefit of any law or custom existing in the said colony and territories subject to its jurisdiction, such law or custom not being repugnant to natural justice, equity and good conscience, nor incompatible either directly or by necessary implication with any enactment of the colonial legislature. similar provision was enacted in 1900 in the supreme court ordinance. by virtue of the provisions of section 13 of the supreme court ordinance 1900, it provides that: nothing in this proclamation shall deprive the supreme court of the right to observe and enforce the observance, or shall deprive any person of the benefit of any law or custom existing in the protectorate such law and custom not being repugnant to natural justice equity and good conscience.56 preceding independence, another test was added to the two mentioned above, that is, the public policy tests. the public policy test says a court cannot and will not enforce any custom that is contrary to public policy. since the above enactment which makes customary laws inferior to imperial laws, every subsequent enactment after independence till date has similar provision that before a court can observe and enforce the observance of a rule of customary law, such must pass repugnancy, public policy and incompatibility test.57 there are however current enactments embodying repugnancy and public policy test. throughout colonial period, customary law was subjected to repugnancy tests and this position continued after independence. each region had been empowered to administer customary law. the high court laws also gave effect to the recognition of customary law. there are several enactments currently postulating the repugnancy doctrine. these enactments are in force in the various states of the federation. they include; the high court laws of bendel – state.58 there are only a few reported cases in which reference has been made to public policy in relation to customary law. the test of public policy was considered by verity j. in the case of re adadevoh59 that ‘if the yoruba custom of acknowledging paternity of illegitimate children would encourage promiscuity, then it would be contrary to public policy’. the public policy test was considered as a common law rule forming part of the incompatibility test. in alake v pratt,60 the court rejected the view expressed by the trial judge that it was incompatible with public policy to place children born out of wedlock in the same position as children born in wedlock in distributing the estate of the deceased father of all the children. also, in cole v. akinyele,61 the federal supreme court held that ‘the yoruba custom of legitimation by acknowledgment of paternity was void on the ground of public policy in its application to a child born outside wedlock during the subsistence of a statutory marriage under the marriage ordinance’. it is pertinent to note that the courts have not been able to come out with the clear meaning of the phrase ‘public policy’. hence burrough j. in richardson v mellish62 described it as; ‘a very unruly horse and when once you get astride it you never know where it will carry you’.63 from the foregoing, it is right to say that there is no precise meaning, definition and explanation for the phrase; ‘public policy’ rather it depends on the circumstances of each case. the supreme court act64 also contains these 54 badaiki a. d., development of customary law, (tiken publishers, lagos, nigeria, 1997), pp. 27-29. 55 ibid and badaiki a. d., development of customary law, p. 27. 56 niki t., sources of nigerian law, (mij professional publishers limited, lagos, 1996), p. 111. 57 ibid. 58 section 13(1) high court laws, cap. 65, laws of bendel-state, 1976, (now edo and delta states) and section 24(a) of the customary court edict no. 2 of 1984 of bendel–state (now edo and delta–states). 59 (1951) 13 w.a.c.a. 304. 60 (1955) 15 w.a.c.a. 20. 61 (1960) 5 f.s.c. 84. 62 (1824) 2 bing 258. 63 ibid. 64 cap. s15, lfn, 2004. african customary and religious law review (acarelar) 3 (2022) 60 | p a g e doctrines. as regards the observance and enforcement of the observance of customary law, section 17 of the supreme court act65 provides as follows: with respect to the exercise of the original jurisdiction conferred upon the supreme court by subsection (1) of section 232 of the constitution or which may be conferred upon it in pursuance of section 232(2) of the constitution, the following provisions shall apply… (e) the supreme court shall observe and enforce the observance of customary law to the same extent as such law is observed and enforced in nigerian courts. section 26 of high court of lagos-state66 makes provisions for repugnancy and incompatibility test and provides that; the high court shall observe and enforce the observance of customary law which is applicable and is not repugnant to natural justice, equity and good conscience, nor incompatibility either directly or indirectly with any law for the time being in force, and nothing in this act shall deprive any person of the benefit of any such native law or custom. looking at the provision of section 26 of the high court of lagos–state act, it is clear that the intention of the drafter of the statute is for customary law to exit side by side with received english law provided the custom which because of usage overtime has acquired the status of customary law is not repugnant to natural justice, equity and good conscience and is not incompatible directly or indirectly with any law for the time being in force. the various statutes empowering the courts to apply customary law prescribe some criteria for determining the validity of any particular rule of customary law sought to be applied and enforced. the high court laws of various states direct the courts to observe and enforce the observance of native law and custom, but only if the particular rule is not repugnant to natural justice, equity and good conscience either directly or indirectly with any law for the time being in force or incompatible with public policy. also, section 18(3) of the evidence act67 provides that ‘in any judicial proceeding where any custom is relied upon, it shall not be enforced as law if it is contrary to public policy, or is not in accordance with natural justice, equity and good conscience’. the combined effect of these provisions is that the courts cannot enforce a rule of customary law unless these criteria are satisfied. this work terms these criteria the validating criteria of customary law and they are that; a) the custom must not be repugnant to natural justice, equity and good conscience. b) the custom must not be incompatible either directly by implication with any law for the time being in force. c) the custom should not be contrary to public policy. these validating criteria will now be closely examined. a rule of customary law which is repugnant to natural justice, equity and good conscience, cannot be forced and applied by the courts. what then is the meaning of the phrase; ‘natural justice, equity and good conscience’? speed j., in lewis v. bankole68 attempted a disjunctive interpretation of the phrase and gave separate meanings to ‘natural justice’, ‘equity’ and ‘good conscience’ but this interpretation was rejected on appeal. niki tobi j.c.a., (as he then was) in mojekwu v. ejikeme69 examined the phrase thus: ‘the word ‘repugnant’ ordinarily means offensive, distasteful, inconsistent, or contrary to... the expression ‘natural justice’ generally means justice according to or pertaining to nature and therefore inborn’. the supreme court in okonkwo v. okagbue70 maintained that: the phrase ‘repugnant to natural justice, equity and good conscience’ means equity in its broad sense as used in the repugnancy doctrine is equivalent to the meaning of ‘natural justice’ and embraces almost all, if not all, the concepts of good conscience. equity is not used here in its technical sense, but in its broad sense. also, natural justice is not used in its modern technical sense but synonymously with natural law. according to ezejiofor,71 the phrase is interpreted to mean, ‘fair and just or conscionable’. in other words, a rule of customary law that is unjust, unfair or unconscion0able is repugnant to natural justice, equity and good conscience. it is however of utmost importance to note that the courts have not adopted a general theory of repugnancy. rather each case is determined by time and its circumstances. the word ‘incompatible’ was 65 ibid. 66 cap. 60 laws of lagos-state 1994. 67 cap. e14, lfn, 2004 (as amended). 68 (1908) 1 n.l.r. 81. 69 (2001) c.h.r. 179, 208. 70 (1994) 9 n.w.l.r. (pt. 368) 310. 71 ezejiofor a., sources of nigerian law, (sweet & maxwell, london, 1980), p. 43. igbineweka & enakireru: customary law in nigeria: interrogating the issue of judicial notice 61 | p a g e judicially interpreted by niki tobi j.c.a., (as he then was) in mojekwu v. ejikeme72 to mean not compatible, not consistent and contradictory. the supreme court in the case of okonkwo v. okagbue73 maintained that the phrase ‘public policy’ means the ideas in vogue for the time being in the community as to the conditions necessary to ensure its welfare. from the above definition, it means that a thing will be treated as against public policy if it is generally regarded as injurious to the public interest. the supreme court also observed that public policy is not fixed and stable. it fluctuates with circumstances and time. there is however a new suggested criterion for evaluating and ascertaining customary law.74 this is the human right test. it postulates the human rights and fundamental freedoms paradigm as a criterion for the determination of the validity of customary law. however, it seems that this clause; ‘not repugnant to natural justice, equity and good conscience and is not incompatible directly or indirectly with any law for the time being in force’ are invented as calculated attempt by the originator of the phrase, that is, the british colonial administrator to perpetually subject the native customs and tradition as inferior laws when compared to the received english laws.75 4. the constitutionality of customary law / customary law as a grundnorm historically, the relative influence of each of natural law, customary law and positive laws has fluctuated throughout time and space.76 this influence may be at least partially due to the acceptance by the community that is inherent in customary law.77 the effectiveness may be explained by the fact that customary law, by its very nature, has evolved to suit the communities and environments in which it operates. despite the growing awareness of the importance of customary law, state recognition of customary law is still lacking in many countries, and even where it is recognized there is often conflict between statutory regimes and customary law. this may be partially explained by the fact that customary law may be seen as a challenge to a nation’s sovereignty,78 rightly or wrongly so.79 constitutionally enshrined recognition of customary laws and rights is particularly important because, in many states, statutory law prevails over conflicting customary law, unless there is constitutional protection.80 however, it is acknowledged that states may recognize customary law in other domestic law and policy without constitutional provisions relating to customary law. the united nations declaration on the rights of indigenous peoples (undrip) similarly recognizes the rights of indigenous people to traditional lands, including respect for their traditions, customs and land tenure systems.81 there is a high level of recognition of traditional and customary institutions, as well as a broad recognition of customary law in the courts. the constitution of the federal republic of nigeria, 199982 contains provisions relating to customary law in the courts. jurisdictions preserve, establish and permit establishment of specific customary law courts and dictate the jurisdiction of courts in relation to customary law.83 the constitution of the federal republic of nigeria, 199984 also has an integrative measure requiring that some justices of the supreme court and the court of appeal 72 (1996) 8 n.w.l.r. (pt. 468) 357. 73 (1994) 9 n.w.l.r. (pt. 368) 301, 345. 74 onyekpere e., ‘justice for sale’ (a report of the administration of justice in the magistrate and customary courts of southern nigeria, civil liberties organization, lagos. 1996), pp. 46–47. 75 babatunde i. o., ‘people perish for lack of knowledge: revisiting of the role of custom in the development of nigerian legal system’ available on http://moj.ekitistate.gov.ng/online-journal/people-perish-for-lack-of-knowledge-revisiting-of-therole-of-custom-in-the-development-f-nigerian-legal-system/ accessed on 29th august, 2021. 76 katrina c., ‘customs and constitutions: state recognition of customary law around the world’, published in iucn, asia regional office, bangkok, thailand, 2011. also available on www.iucn.org/publications and https://www.google.com.ng/url?sa=t&rct=j&q=&esrc=s&source=web&cd=5&ved=0cdoqfjae&url=https%3a%2f%2fp ortals.iucn.org%2flibrary%2fefiles%2fdocuments%2f2011-101.pdf&ei=rpgtvcrmnynu7ab5rsaaw&usg=afqjcng1yyupxieldkgs-gdbnhgslv1cjgand accessed on 01st july, 2021. 77 ibid. 78 ibid. 79 ibid. 80 mukoro a., ‘the interface between customary law and local government legislation in nigeria: a retrospect and prospect’, published in international ngo journal, volume 4 (4), april, 2009, pp. 167-172. available on http://www.academicjournals.org/ingojissn1993–8225and http://www.google.com.ng/url?sa=t&rct=j&q=&esrc=s&source=web&cd=8&ved=0cesqfjah&url=http%3a%2f%2fww w.academicjournals.org%2farticle%2farticle1380901170_mukoro.pdf&ei=bvytvy-nirkr7aat5m4aw&usg=afqjcnee7kks09hdn-dbfe9dxhlzxzoscg accessed on 01st july, 2021. 81 united nations declaration on the rights of indigenous peoples, 13 september, 2007, g.a. res. 61/295, u.n. gaor, 107th session, united nations document; a/res/61/295 (2007), article 26. available on http://www.un.org/esa/socdev/unpfii/documents/drips_en.pdf accessed 03rd july, 2015. 82 cap. c23, lfn, 2004, as amended 2011. 83 sections 265 and 280 of the constitution of the federal republic of nigeria, 1999, cap. c23, lfn, 2004, as amended 2011. 84 cap. c23, lfn, 2004, as amended 2011. http://moj.ekitistate.gov.ng/online-journal/people-perish-for-lack-of-knowledge-revisiting-of-the-role-of-custom-in-the-development-f-nigerian-legal-system/ http://moj.ekitistate.gov.ng/online-journal/people-perish-for-lack-of-knowledge-revisiting-of-the-role-of-custom-in-the-development-f-nigerian-legal-system/ http://www.iucn.org/publications https://www.google.com.ng/url?sa=t&rct=j&q=&esrc=s&source=web&cd=5&ved=0cdoqfjae&url=https%3a%2f%2fportals.iucn.org%2flibrary%2fefiles%2fdocuments%2f2011-101.pdf&ei=rpgtvcrmnynu7ab5-rsaaw&usg=afqjcng1yyupxieldkgs-gdbnhgslv1cjg https://www.google.com.ng/url?sa=t&rct=j&q=&esrc=s&source=web&cd=5&ved=0cdoqfjae&url=https%3a%2f%2fportals.iucn.org%2flibrary%2fefiles%2fdocuments%2f2011-101.pdf&ei=rpgtvcrmnynu7ab5-rsaaw&usg=afqjcng1yyupxieldkgs-gdbnhgslv1cjg https://www.google.com.ng/url?sa=t&rct=j&q=&esrc=s&source=web&cd=5&ved=0cdoqfjae&url=https%3a%2f%2fportals.iucn.org%2flibrary%2fefiles%2fdocuments%2f2011-101.pdf&ei=rpgtvcrmnynu7ab5-rsaaw&usg=afqjcng1yyupxieldkgs-gdbnhgslv1cjg http://www.academicjournals.org/ingojissn1993–8225 http://www.google.com.ng/url?sa=t&rct=j&q=&esrc=s&source=web&cd=8&ved=0cesqfjah&url=http%3a%2f%2fwww.academicjournals.org%2farticle%2farticle1380901170_mukoro.pdf&ei=bvytvy-nirkr7aat-5m4aw&usg=afqjcnee7kks09hdn-dbfe9dxhlzxzoscg http://www.google.com.ng/url?sa=t&rct=j&q=&esrc=s&source=web&cd=8&ved=0cesqfjah&url=http%3a%2f%2fwww.academicjournals.org%2farticle%2farticle1380901170_mukoro.pdf&ei=bvytvy-nirkr7aat-5m4aw&usg=afqjcnee7kks09hdn-dbfe9dxhlzxzoscg http://www.google.com.ng/url?sa=t&rct=j&q=&esrc=s&source=web&cd=8&ved=0cesqfjah&url=http%3a%2f%2fwww.academicjournals.org%2farticle%2farticle1380901170_mukoro.pdf&ei=bvytvy-nirkr7aat-5m4aw&usg=afqjcnee7kks09hdn-dbfe9dxhlzxzoscg http://www.un.org/esa/socdev/unpfii/documents/drips_en.pdf african customary and religious law review (acarelar) 3 (2022) 62 | p a g e be learned in customary law.85 customary law jurisdiction is sometimes expressly limited to civil cases and excluded from operation in criminal cases.86 there is provision for customary courts in every federal state for the administration of justice. nigerian law recognizes both monogamy and polygamy. polygamy is recognized by customary law of the spouses and the nigeria constitution.87 the judiciary as presented by the constitution of the federal republic of nigeria 199988 provides some considerations that are worth our attention. the constitution of the federal republic of nigeria, 199989 also recognizes both islamic and customary law just to do justice to the indigenous people, their culture and religion. inter alia, it accorded honor to the study of customary law.90 this is a point proving that the future of customary law is also promising in nigeria. furthermore, the constitution of the federal republic of nigeria 199991 also makes provision for the recognition of existing laws. section 315 (1)92 provides that: ‘subject to the provisions of this constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this constitution….’ section 31893 defines existing law in section 315 (4) (b)94 to mean ‘any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force after that date’. from the above, this work contends that existing laws also mean customary laws and rules of customs that were in force before the enactment of this constitution. it therefore follows that the constitution also gives cognizance and validity to customary laws. in this light and to the extent that the constitution provides that its provisions are supreme,95 this work safely contends that customary laws can be deemed as the grundnorm. it is useful to add here, in order to emphasize this point that many african societies did not only have well settled rules of behaviors, but also distinguished among them what we would now call legal rules from moral rules.96 this much can also be deciphered from recognized standards of behavior and how the standards of the ‘upright man’ which is the equivalent to our moral standards are distinguished from the standards of the ‘reasonable man’ which is the equivalent to our legal standards which are enforced on everybody.97 traditional african societies certainly did have systems of social control which closely resembled modern legal system.98 a careful and close analogy of these african legal systems and the laws of other people would reveal that the differentiation between them is only superficial.99 5. conclusion and recommendations this work concludes that when a native custom fails the tests of validity enunciated above, that native custom shall to the extent of failing these tests be null and void. conclusively, it is pertinent to note that the status of customary law in nigeria is deemed to exist side by side with the received english law which forms the bulk of nigeria statute today and these customs are also given constitutional backings. however, the customary laws in nigeria should conform to the repugnancy, public policy and incompatibility doctrines/tests. this work will examine these conformity patterns in the next and subsequent chapters contained herein. from the above analysis, it is clear that the decision of the nigeria supreme court in idehen v. idehen created a lot of anxiety as to whether the supreme court has expanded the scope and definition of igiogbe under bini customary law of inheritance and succession. the oba of benin quickly responded to correct this impression and restore the age long traditions of the bini people. with the reform he introduced in his book100 affecting succession to the igiogbe, the eldest surviving son of the deceased now has a choice as to which property he would prefer as igiogbe in a situation where the deceased had more than one house provided the deceased had lived in that house during his lifetime, died in the house, may be buried in it and the first son had performed the second burial rites of his father according to the burial rites of the bini custom. these reforms which are documented and widely circulated in the state has to a large extent reduced the efficacy of the supreme court’s decision in idehen v. idehen concerning the concept 85 ibid, sections 237 (2) (b) and 288. 86 ibid, section 282. 87 onyango p., african customary law: an introduction, (law africa publishing (k) ltd., nairobi, kenya, 2013), pp. 61-63. 88 cap. c23 lfn, 2004, as amended 2011. 89 ibid. 90 section 288. 91 cap. c23, lfn, 2004 as amended 2011. 92 ibid. 93 ibid. 94 ibid. 95 section 1(1) and (3). 96 elegido j. m., jurisprudence: a textbook for nigerian students, (spectrum law publishing, 2010), p. 127. 97 gluckman m., judicial process among the barotse (revised edition, manchester university press, 1967), p. 126. 98 elias t. o., the nature of african customary law (manchester university press, 1962), p. 1. 99 ibid. 100 benin traditional council, a hand book on some benin customs and usages (first edition, soben printers limited, benin – city, 1996). igbineweka & enakireru: customary law in nigeria: interrogating the issue of judicial notice 63 | p a g e of two igiogbe under bini native law and custom. consequently, inheritance to the igiogbe is now done on the bases of the oba’s proclamation rather than in accordance with the principles in idehen v. idehen thereby reducing if not eliminating completely the conflict introduced by the concept of two igiogbes. in the igiogbe concept under the bini customary law of inheritance and succession, the provision of section 42(1) of the constitution of the federal republic of nigeria 1999, cap. c23, lfn, 2004 (as amended 2011) is not strictly followed, in that the igiogbe concept forbids discrimination on grounds of circumstances of birth being that a legitimated first son can inherit an igiogbe but a child is forbidden from inheriting an igiogbe simply because she is a female. a daughter who is the eldest surviving child of a deceased is not accorded a special status or treatment under the customary laws of inheritance but a son who is the eldest surviving child is generally accorded a special status and treatment as the head of the immediate family of the deceased man. it observed that the problems of discrimination against women are both international and national and not peculiar to the bini’s alone. in view of the foregoing, this work recommends the following suggestions as the way forward in achieving a reasonable advancement of women’s rights in the contemporary nigerian society. f) customary laws of inheritance that are discriminatory against women on the basis of sex needs to be reformed, so that wives and daughters can be given the right to inherit the property of their deceased husbands and fathers. the enlightenment campaign should be a collective duty of traditional rulers, religious leaders/bodies, community leaders and heads of family who are regarded as the custodians of the culture of their people considering the fact that customary laws are deeply rooted in the culture of the people. it is necessary to involve these categories of people because it is under their auspices that these customary laws which cause a lot of hardships to women operate. their support is therefore necessary for the reform to be effective. g) mass enlightenment campaign should be mounted by the ministry of women affairs at both the federal and state levels to enlighten the people first about the hardship and injustice which the discriminatory customary laws impose on women. secondly, to make people appreciate that the basis for which custom denied women the right to inherit property in the past is no longer sustainable in contemporary times. therefore, there is need to reform the laws. the campaign should be through jingles on electronic media, discussions over the radio, advertisements on bill boards, in newspapers in both english and local languages so as to reach the literate and illiterate members of the public. these enlightenment programmes are necessary to change the social attitudes of the people particularly the men. this will aid change the popular misconception that women are inferior to men and eventually facilitate a reform of the customary laws. this is because many women, owing to illiteracy or ignorance are not aware of the existing laws on inheritance which provide the rights of inheritance for them. even the educated ones who have some knowledge of the laws do not bother to know the contents of such laws and how they can access the laws to protect their rights of inheritance. in this connection, women social groups/organisations, religious leaders in rural communities, non-governmental organisations, mass media, ministries of women affairs and justice at both federal and state levels should embark on educational and enlightenment programmes to educate women of their rights of inheritance under the existing laws. it is hoped that such concerted efforts will help to promote women’s rights of inheritance. h) reform of states’ laws on inheritance starting from the grassroots should be followed by legislation. such legislation should abolish the indigenous customary laws of inheritance that are discriminatory against women. also, it is the recommendation of this work that new wills laws should be enacted. states that have not enacted wills laws should enact such laws to replace the english wills acts of 1837 and 1852 that are still applicable in those states. i) free legal aid for matters relating to the rights of inheritance should be provided by the legal aid council for poor women to seek redress in courts in cases of the violation of their rights of inheritance. it is pertinent to state that the legal aid council act presently empowers the legal aid council to render free legal assistance in respect of civil claims to cover breach of fundamental human rights as guaranteed under chapter iv of the constitution of the federal republic of nigeria 1999, cap. c23, lfn, 2004 (as amended 2011). this will make women have better access to legal representation when their rights of inheritance are violated or about to be violated. j) the role of the judiciary should not be under-emphasized. our courts should be bold and imaginative in their determination of issues on customary laws affecting inheritance rights of women. any customary law that is discriminatory against women should be declared invalid on the grounds that it is unconstitutional and repugnant to natural justice, equity and good conscience. in this way, the judiciary will help to develop our customary laws to meet changes in global trends to women’s rights and uphold the fundamental human rights of women as guaranteed under our constitution. african customary and religious law review 1 (2020) page | 11 an evaluation of the nigerian judicial attitude to the igbo customary law of succession*1 abstract although the igbo customary law of succession, which espouses the primogeniture principle, has recently been lambasted by the nigerian courts for violating the equality provisions of the nigerian constitution and discriminating against women, the judicial engagement with the igbo inheritance law in nigeria remains evasive and reductionist. the nigerian courts have failed to examine the igbo customary inheritance law in the context of the social settings under which it developed from pre-colonial and colonial times till date, and the purposes which the law was originally meant to serve. against this backdrop, this article critically engages the primogeniture principle and the igbo customary succession law without neglecting its socio-historical context and raison d’etre. the study finds that the problem with the igbo succession law today lies more with the lived unofficial practice of the igbo inheritance custom over time than with the official customary law, which ultimately aims at securing the best interests of all the dependants of intestates. the article, therefore recommends that rather than totally discountenancing the igbo customary succession law on the basis of the ‘bill of rights approach’, a more holisitc judicial review of the igbo inheritance law should recapture the ‘the best interests of all dependants approach’ inherent in pre-colonial igbo inheritance custom albeit without its patriarchal garb. the work adopts the methodology of doctrinal analysis. keywords: judicial attitude, nigerian, igbo customary law, succession 1. introduction the igbo custom is one of the richest and deeply symbolical cultures in nigeria and indeed the whole of africa. this rich cultural matrix is not just evidenced in the igbo history, folklore, artifacts, institutions, dance, marriage and family. in a very special way, it is manifested through the igbo customary inheritance laws. as a people, igbos do not joke with property. the property of the igbo man not only represents the fruit of his labour while on earth, it affords him something to hand over and so, assures him of a future in his successors, long after he has joined his ancestors. as such, the igbo custom does not joke with succession and the attendant rights it confers on those who inherit under the custom. even in situations where the deceased leaves a will behind, devolution of property in igbo land (especially where the deceased is a man of means) sometimes could be very complex and precarious.2 apart from the above, of all the customary laws of inheritance in nigeria, none has enjoyed judicial attention as the igbo customary law.3 in fact, it’s complicated and rough relationship with the courts in nigeria has given rise to reactions from scholars and notable people in igbo land and beyond.4 an examination of the relevant cases and resultant scholarly reactions reveal two discernible clusters of opinions. on the one hand are judges and scholars who campaign for the preservation of the igbo culture, and therefore, lampoon decisions critical of same;5 on the other hand, more recent decisions and opinions find some elements in the igbo succession custom not only repugnant to natural justice, equity and good conscience but also discriminatory to females in a democratic society.6 however, despite the subjection the igbo inheritance laws to the bill of rights in recent times by the nigerian courts, this article argues that the judicial attitude to the igbo customary law of inheritance in nigeria remains reductionist and evasive. it is not enough for courts to levy theoretical condemnations on the igbo inheritance custom, hence, further widening the gap between law and practice, with regard to customary practice in nigeria. the nigerian courts have not taken time to examine the socio-economic settings under which these inheritance rules originated and the rationales behind them, so as to formulate a more robust, balanced and acceptable 1*by gabriel uchechi emeasoba, pgde (usman danfodiyo university, sokoto), llb (lagos), ba (ibadan), bphil (urban university rome), bth (urban university rome), llm (lagos), llm (aberdeen), phd candidate (aberdeen). 2 see vincent ujumadu, ‘missiles trail ojukwu’s will’ (vanguard, 8 december 2012).<https://www.vanguardngr.com/2012/12/misssiles-trail-ojukwus-will/amp/> accessed 5 may 2021. 3 the igbo customary law of succession has drawn the attention of the nigerian courts because of some discriminatory elements of the custom, especially, the principle of primogeniture, which, in its application, discriminates against women. examples of cases dealing with the igbo customary law of succession include: onwusike v onwusike (1962) 6 enlr 10; nezianya v okagbue (1963) 1 all nlr 52; muojekwu v muojekwu (1997) 7 nwlr 283; anaekwe v nweke (2014) 9 nwlr [pt 1412] 393; muojekwu v iwuchukwu (2004) 11 nwlr [pt 883] 196; ukeje v ukeje (2014) 11 nwlr (pt 1418) 384. 4 see tog animashaun & ab oyeneyin, laws of succession, wills and probate in nigeria (lagos, mij pub 2002) 3; i e sagay, nigerian law of succession principles, cases, statutes and commentaries (1st edn, malthouse press 2006) 73; ben nwabueze, nigerian land law, (nwamife pub ltd 1974) 381-402; ei nwogugu, family law in nigeria (hebn pub plc 1974) 401; ip enemuo, basic principles of family law in nigeria (spectrum books ltd, 2008) 398-406. 5 see muojekwu v iwuchukwu (n 3 above), per so uwaifo (jsc); nezianya v okagbue (n 3 above) ; nzekwu v nzekwu (1989) nwlr (pt 104) 373; ac diala, ‘a critique of the judicial attitude towards matrimonial property rights under customary law in nigeria’s southern states’ (2018) 18 ahrlj 113. 6 see ukeje v ukeje (n 3 above), per rhodes-vivour (jsc); see also ac diala (n 3 above) 100-113. emeasoba: an evaluation of the nigerian judicial attitude to the igbo customary law of succession page | 12 response/reform.7 the article contends that such a robust examination will help in demonstrating that, given the fact that the socio-economic circumstances under which the igbo customary rules of inheritance were formulated have changed,8 it makes no sense clinging to a pristine principle of primogeniture that discriminates not only women but also other dependents of a deceased intestate. this article is divided into three main parts. the first part introduces the discussion by explaining the central ideas of succession and intestate succession. the second part approaches the examination of the igbo customary law of inheritance through a case-by-case and issue-by-issue analysis in order to distil the different elements of the custom, paying attention to the progression and developments in these customary rules, and the rationales behind them. the article ends with an evaluation which engages the judicial attitude to the igbo customary law of inheritance, and proposes a more robust reform of same. 2. general idea of succession and succession law according to the black’s law dictionary, succession is defined as ‘the acquisition of rights of property by inheritance under the law of descent and distribution.’9 put in another way, ‘it is the transfer of property or legal rights to another at the death of the owner… the law governing the transmission of property vested in a person at his death to some other person or persons.’10 animashaun and oyeneyin see it as ‘the passing of property to persons upon the death of the owner of the property.’11 therefore, the law of succession deals with the legal rules that regulate the transmission of the rights and obligations of the deceased person in respect of his estate to his heirs and successors. scholars agree that the purpose of the law of succession is to ensure the continuance of the property of the deceased, and to provide machinery for the proper distribution of property among those who are beneficially entitled thereto.12 hence, succession ‘provides a pattern for the devolution of the deceased estate. upon the death of a person, his assets devolve upon a new owner, and some clearly defined patterns of devolution and institutions charged with its control must exist to preserve peace and order among the members of the community. the law of succession provides this pattern’.13 succession may be testate or intestate. where a deceased person makes a will, he is said to have died testate. the effect of this is that his property would be distributed to his heirs and successors in accordance with his will, regulated by necessary laws.14 but where he has no will or has made one which at his death has become totally inoperative, he is said to have died intestate.15 when a person dies intestate, succession to his/her self-acquired property could be regulated by three systems of law: the common law rules of intestacy, the administration of estate laws of various states or customary law.16 according to sagay, ‘the factor which determines which system is to apply in every case is the type of marriage contracted by the intestate person. in the case of muslims, the religion practiced by the deceased is also relevant.’17 where the intestate contracts statutory marriage and dies domiciled in any of the sates comprising the former northern or eastern regions, which are yet to enact their administration of estates laws, the distribution of his estate is governed by common law rules of intestacy.18 however, where the intestate contracts a statutory marriage in nigeria but dies domiciled in lagos or any of the states comprising former old western or mid-western regions, then, respectively, the administration of estates law of lagos state or of any of the concerned states (where they have enacted their own laws) or of the old western or mid-western region (where no autochthonous law has been enacted) will govern the distribution of the deceased’s estate.19 lastly, if the intestate nigerian dies without contracting a statutory marriage, the mode of 7 by contrast, the courts in south africa have pursued a more robust reform of her customa ry laws. see bhe & others v the magistrate, khayelitsha & others 2004 (2) sa 544 (c) and shibi v sithole and minister for justice and constitutional development case 7292/01, 19 november 2003 (unreported); cn himonga, ‘the advancement of african women’s rights in the first decade of democracy in south africa: the reform of the customary law of marriage and succession’ (2005) 82 acta juridica 83. 8 ac diala, ‘reform of the customary law of inheritance in nigeria: lessons from south africa’ (2004) 14 ahrlj 634. 9 b garner, black’s law dictionary (11th edn, thomas reuters, 2029) 1569. 10 dh parry, the law of succession (sweet and maxwell, 1961) 1. 11 tog animashaun & ab oyeneyin, laws of succession, wills and probate in nigeria (mij pub ltd, 2002) 3. 12 ibid. 13 f hutley & r woodman, cases and materials on succession (the law book company, 1967) 1. 14 see wills law of lagos state, s 1. 15 see bn otunta, ‘nigerian intestacy law: appraising the impact of the pluralist system’ (2020) 6 international law journal no 2 70-71. 16 ie sagay, nigerian law of succession principles, cases, statutes and commentaries, (1st edn, malthouse press ltd 2006) 73. 17 ibid 73. 18 ibid 73; for example, anambra state in southeastern nigeria has enacted the administration and succession (estate of deceased persons) law to govern intestate succession in the state. 19 see administration of estate laws of lagos state 2004. african customary and religious law review 1 (2020) page | 13 distribution of the deceased’s estate will be governed by customary law or islamic law, as the case may be.20 this article is concerned with customary succession law in nigeria. 3. intestate succession under customary law in nigeria customary law has been defined as ‘a mirror of accepted usage, a reflection of the social attitudes and habits of various ethnic groups and derives its validity from the consent of the community which it governs, applicable only to the people indigenous to the locality where the customary law holds sway.’21 it is ‘any system of law different from common law and law enacted by legislation, but which is enforceable and binding within nigeria as between the parties subject to its way.’22 therefore, customary succession is succession that is not in accordance with common law or statute, but in accordance with the traditions, customs and practices of the local people which are enforceable and binding between the parties which are subject to it. for any court in nigeria to enforce any customary law, it must pass the validity test.23 hence, it must not be repugnant to natural justice, equity and good conscience;24 and it must not be incompatible either directly or indirectly with any law for the time being in force in nigeria, and neither would it be inconsistent with the provisions of the nigerian constitution,25 or public policy.26 in nigeria, there are about 300 different ethnic groups with even a greater number of customary laws.27 customary succession implies that distribution of deceased persons’ estates would be done according to each of these customary laws. according to nwabueze, in each case, the mode of customary succession is determined by doctrines of inheritance espoused by each custom.28 he identified three doctrines of inheritance evident in the nigerian customary law of succession: patrilineal succession, matrilineal succession and bi-lineal succession.29 among patrilineal societies, two main patterns of succession are found succession by all the surviving children jointly, and succession by a sole heir under the doctrine of primogeniture.30 the igbo customary law of succession belongs to the latter category. 4. succession under the igbo customary law granted that the rules of customary law of succession in igbo land are not uniform, certain similarities are discernible.31 hence, according to nwogugu, ‘although there are slight variations in the prevailing customary law of succession in various parts of iboland, the main principles are basically the same.’32 the cardinal principle of the customary law of succession in various parts of igbo land is primogeniture, that is, succession by the first born of the male line.33 under the principle of primogeniture, succession is through the eldest male in the family who is known as ‘okpala’ ‘diokpala’ or ‘diokpa’. in the case of a nuclear family, succession is through the eldest male child of the deceased. with regard to the extended family, succession is through the eldest son of the ancestor and so on in that line irrespective of the fact that the ‘okpala’ may in fact be junior in age to other members of the extended family.34 there is often the erroneous impression among some scholars that the principle of primogeniture, as espoused by the igbo succession custom, always entitles the eldest surviving son to inherit the estate of his deceased father absolutely, to the exclusion of other children.35 this notion has been rebutted by nwabueze, who distinguished between two ways in which the principle of primogeniture could operate in customary law.36 according to him, the principle of primogeniture could operate in two forms: (a) succession to the headship of the deceased’s 20 ibid, s 1(3); in obusez v obusez (2001) fwlr (pt 73) 40, aderemi jca stated: ‘where however, a person subject to customary law went on to transact a marriage under the act, this raises a presumption that the distribution of his estate shall be regulated by the marriage act. this presumption can be rebutted if the manner of life of the deceased is suggestive that the deceased wanted customary law to apply.’ 21 s jeswald, a selection survey of nigerian family law (ahmadu bello university bookshop 1965) 6-8. 22 kharie zaiden v fatima k mohassen (1974) uilr 283 at 284. 23 the “validity test” as a judicial criterion comprises of the “repugnancy test”, the “incompatibility test” and the “public policy test”. see evidence act 2011, s 18 (3); eshygbaye eleko v government of nigeria (1931) ac 662. 24 this standard is known as the “repugnancy test” as applied by the courts in okonkwo v okagbue [1994] 9 nwlr (pt 368) 301 and mojekwu v ejikeme & ors (2000) 5 nwlr 402. 25 this test is known as the “incompatibility test” as demonstrated by sections 14 and 42 of the constitution of the federal republic of nigeria 1999 (as amended), and applied by the courts in ukeje v ukeje [2014] 11 nwlr (pt 1418) 384. 26 the “public policy test” has been applied by the court in okonkwo v okagbue [1994] 9 nwlr (pt 368) 301. 27 see o otite ethnic pluralism and ethnicity in nigeria (shaneson ci ltd, 1990) 35-36. 28 b nwabueze, (n 4) 381-402. 29 ibid. 30 ibid 31 enemuo (n 4) 398. 32 ei nwogugu (n 4) 401. 33 ibid 416. 34 ibid 417-417. 35 nwabueze (n 4) 392-398. 36 ibid. emeasoba: an evaluation of the nigerian judicial attitude to the igbo customary law of succession page | 14 immediate family; and (b) succession to the deceased as sole inheritor.37 where the first form of primogeniture operates, (as in patrilineal societies, including the igbos), the eldest surviving son inherits from his deceased father only as the new head of the family.38 this does not make him the sole inheritor in such a way that he could sell the deceased’s property without the consent of other children of the deceased. he holds the property in trust for other children.39 this is different from the second idea of primogeniture, where the eldest surviving son, upon the death of his father and upon fulfillment of some customary obligations, inherits absolutely from his father, as a sole inheritor.40 this latter form is found in the bini customary law, where the eldest surviving son’s right extends not only to the igi-ogbe,41 but also, to the whole real property of his deceased father,42 as demonstrated by the nigerian courts in the popular case of ogiamen v ogiamen.43 the rationale behind the principle of primogeniture which underlines the igbo customary law of succession was the maintenance of family welfare and stability.44 hence, according to obi, pre-colonial inheritance rules in nigeria were concerned with the overall welfare of the family.45 since the igbo customary rules of inheritance were centered on protecting family structures, to perpetuate clan lineage and keep wealth within the family, heirs inherited not only the properties of the deceased persons, but also responsibilities to maintain the deceased’s dependants and to preserve the continuity of the family.46 ideally, it was in this context that the male primogeniture rule, which aimed principally at caring for the whole family,47 was developed. ultimately, underlying the primogeniture principle in the traditional igbo society was the best interests of the family (males and females, inclusive).48 therefore, from this perspective, it becomes easier to dispassionately understand the different elements of the igbo customary laws of succession, which are discussed below. the method of inheritance in igbo land true to the igbo primogeniture principle, at the death of the founder of the family, his eldest son succeeds him as the head of the family.49 unlike in the yoruba custom,50 a female cannot assume the position of family-head in igbo land, no matter her position or seniority in the family. the eldest son inherits the father’s personal ‘ofo’ and other objects of worship.51 where a title survives the holder, the eldest son inherits the father’s title.52 he is also entitled to the insignia of the intestate’s hereditary office, which he has no right to sell, because this is considered as family property.53 with regard to the personal and real estates of the deceased intestate, the rules of inheritance in igbo land are as follows: the eldest son inherits his father’s furniture to the exclusion of his brothers and the widows. he also inherits his father’s wearing apparels and other articles of dressing. where the intestate left behind some money, this is inherited by all his sons. the sons also inherit their fathers farming implements or tools and his livestock. succession to the intestate’s real estate is determined by the nature of the particular property. the eldest son inherits, as of right, the late father’s dwelling house – obi and the immediate surrounding compound. he is in addition entitled, by virtue of his position, to one distinct piece of land sometimes called ‘ani isi obi’, that is, land for the head of the family. the right to succeed to the other lands and houses of the intestate is vested in his sons as a body. in the absence of sons, the right to inherit such property is that of the eldest full brother.54 37 ibid. 38 ibid. 39 see ngwo & ors v onyejena (1964) 1 all nlr 1352. 40 nwabueze (n 4) 391-393. 41 igi-ogbe is the ‘principal house’ where the deceased lived during his lifetime. see idehen v idehen (1991) 6 nwlr [pt 198) 382. 42 see ogiamen v ogiamen (1967) nmlr 243 at 247. 43 ibid. 44 snc obi, modern family law in southern nigeria (cambridge university press, 1966) 337. 45 ibid. 46 n okoro, the customary laws of succession in eastern nigeria and the statutory and judicial rules governing their application (sweet & maxwell, 1966) 4. 47 ibid. 48 see n nhlapo, ‘the african family and women’s right: friends or foes’ (1991) acta juridica 138 141 145-146. 49 ip enemuo (n 4) 398. 50 under the yoruba native law and custom, both male and female children of an intestate succeed to the estate of intestate as a single entity. see amadi v abayomi (2002) fwlr (pt 132) 136; lewis v bankole (1908) 1 nlr 81. in fact, the nigerian court of appeal in amusan v olawunmi (2002) 12 nwlr [pt 780] 30 held that, under the yoruba custom, in some situations, women can be family head for the purpose of customary succession. 51 ei nwogwugwu (n 4) 417. 52 ibid. 53 snc obi, the customary law manual (government printer, 1977) 117-137. 54 ei nwogugu, op. cit. pp. 401-402 african customary and religious law review 1 (2020) page | 15 in ngwo & nwojie v onyejena,55 it was held that where there is no issue, the deceased’s brother or uncle succeeds the intestate, but only as a trustee or custodian, to administer the deceased’s estate for the benefit of the deceased’s family. the right of the eldest surviving son to succeed his father in the headship of the family is automatic, and arises by operation of law from the fact of seniority of age.56 only the father can deprive the eldest son of this birthright with a valid direction made with the aim of ensuring that the affairs of his family are properly managed by a person best-fitted on the ground of intelligence and education to do so.57 most times, this direction must be made in the father’s life time before witnesses who should be family members.58 the extent of the inheritance right of the eldest surviving son in igbo succession law in the 1967 case of ugboma v ibeneme,59 the defendant called some expert witnesses who testified that, by the customary law of the igbo people, the eldest son inherits all his father’s landed property (including houses) to the exclusion of his brothers, and could dispose them without his sibling’s consent; and that, though it was usual for the younger brothers to be given allotments of farmland, they had to approach their eldest brother for it. egbuna j. emphatically rejected this as the law in igbo land, and held rightly that land, among the igbos, is inherited by all the sons as family property, and that the eldest son, as the new head of the family, is only a ‘caretaker.’60 nwabueze also rejected the often-believed idea that the eldest son could exclusively inherit the father’s residential house (obi).61 according to him, this is certainly an over-statement based upon a confusion between ownership and possession. the eldest son’s right is merely one of exclusive occupancy of the obi; the ownership belongs to all the male issue jointly as family property. in most cases, the obi is built upon the land of the extended family, so that no question of the ownership of the land itself by the deceased or by his eldest son arises.62 nwabueze’s perspective is supported by the case of onwusike v onwusike,63 where the court held that even though onitsha has roots in benin, it follows the igbo principle of inheritance that succession to land is by all male issues jointly as family property. in ngwo v onyejena64, the nigerian court of appeal found, on the evidence of the asaba customary law of succession that, ‘when a father dies, his land is inherited by his eldest son who holds it in trust for his other children. the other children have a beneficial interest in the land and have a right to farm on it.’65 the primogeniture rule, therefore imposes an obligation on the eldest surviving son okpala. since the real property of the deceased vests on his eldest son (okpala), it is his duty to manage and administer such property for the benefit of himself and his brothers and half-brothers. the position of the eldest son in this respect was discussed in ejiamike v ejiamike,66 where the learned trial judge found, through evidence, that in accordance with the onitsha customary law, the eldest son (okpala) has the right to manage and administer the real estate of his deceased father for the benefit of himself and his brothers. however, in the exercise of this right, as was held in onwusike v onwusike, the okpala is accountable to his younger brothers and so, he must tell them if he desires to sell any such-inherited piece of land, since they are entitled to the proceeds of the sale or rent, where he lets it to a third party. the younger brothers have no right to oust the okpala in the administration of their late father’s real estate, even if he is profligate.67 they can, however, report his profligacy to the extended family.68 succession rights of daughters and widows in igbo customary law under the igbo customary law of succession, the position of law used to be that females do not possess the right to inherit.69 hence, neither the daughters nor the widows of the deceased intestate were allowed to succeed to the deceased’s real estate. 55 (1964) 1 all n.l.r. 352 56 b nwabueze (n 4) 392. 57 ibid 58 ibid 393. 59 (1967) f.n.l.r. 251 60 ibid. 61 b nwabueze (n 4) 395. 62 ibid 63 (1962) 6 e.n.l.r. 10 64 (1964) 1 all nlr 1352. 65 ibid. 66 (1972) 2 ecslr 11 67 see onwusike v onwusike (1962) 6 enlr 10; ejiamike v ejiamike (1972) 2 eslr 11. 68 ei nwogwugwu (n 4) 418-419. 69 ip enemuo (n 4) 398. emeasoba: an evaluation of the nigerian judicial attitude to the igbo customary law of succession page | 16 daughters with regard to daughters, the rule was that a woman cannot succeed to the headship of the family, since it is to the head that the powers incident to family ownership of land belong.70 in ugboma v ibeneme71, the daughters of a deceased intestate from awkuzu in the onitsha province of south-eastern nigeria claimed to be jointly entitled with their brothers to their father’s land. however, the court emphatically rejected this testimony, and held that among the awkuzu people of south-eastern nigeria, as also among the rest of the igbo people, ‘women have no such right….’72 experience and exposure to the igbo custom reveal the rationales behind the disinheritance of daughters in igbo customary law. apart from the fact that the igbo customary law of inheritance is essentially patrilineal, with regard to the inheritance of real estate, in igbo culture, land, for example, has a ritual significance which connects the living to the ancestors of the land. only men are considered custodians of family land as women born within igbo communities often get married to other communities and so, are not allowed to inherit. secondly, as nwabueze noted, if daughters are allowed to inherit from their father’s real estate, the implication is that a daughter’s share in her father’s land may be inheritable by her issue, even without partition of the land.73 what this means is that where the daughter is married, her issue may inherit both from her nuclear family and her father’s family. igbo customary law, therefore, opted to lean against this inequitable double portion.74 what is however provided is that the daughter who is not entitled to inherit her father’s estate is entitled to be maintained by the person who inherits her father’s estate until she marries or becomes financially independent or dies.75 moreover, the unmarried daughter has a right to be shown a portion of her father’s land or family group farmland for her annual farming needs, and this right lasts until she marries or leaves the family group or dies.76 this was the rationale that informed the iri-ekpe or ili-ekpe custom.77 in some parts of igbo land, where this custom obtains, if the intestate dies without sons, brothers or father, his estate is inherited by the eldest nearest paternal male relation, who is called the ori-ekpe, and not any of the surviving daughters of the deceased. however, under the iri-ekpe custom, the ori-ekpe does not inherit absolutely and exclusively.78 his rights cannot be more than that of the eldest son (okpala), where there is one. he holds the property in trust and for the benefit of the family, which includes the daughters.79 the unmarried daughters of the deceased do thereby not lose their rights to maintenance nor are they disentitled from using a portion of their father’s land for their annual farming needs.80 the iri-ekpe custom received judicial acknowledgement until 1997 when the nigerian court of appeal in muojekwu v muojekwu81 lambasted the ‘iri-ekpe’ customary law of the igbos for being repugnant to natural justice, equity and good conscience and employed international instruments like the convention on the elimination of all forms of discrimination against women to make a case against the igbo culture in defense of women rights, on the basis of discrimination on the ground of sex. the hardline judicial attitude against this custom has been maintained in cases like nzekwu v nzekwu.82 in muojekwu v muojekwu, the appellant claimed ownership of the property of the deceased, who was his paternal uncle, against the daughters of the deceased, on the basis of the ‘ili-ekpe’ custom of the nnewi people of south-eastern nigeria. rejecting his claims, niki tobi jca (as he then was) held as follows: we need not travel all the way to beijing to know that some of our customs, including the nnewi oli-ekpe custom…are not consistent with our civilized world, in which we all live today, including the appellant…. accordingly, for a custom or customary law to discriminate against a particular sex is to say the least, an affront on the almighty god himself. let nobody do such a thing. on my part, i have no difficulty in holding that the oli-ekpe custom of nnewi is repugnant to natural justice, equity and good conscience.83 while this decision was lauded in some quarters as a ‘radical change of all customary practices relating to inheritance in nigeria to ensure equality of all persons,’84 it was not well-received in some others. hence, in 2004, 70 ibid. 71 (1967) fnlr 251 4. 72 ibid 73 see b nwabueze (n 4) 383. 74 ibid 75 ei nwogugu (n 4) 421. 76 ibid. 77 this custom empowers the nearest eldest male relation of the intestate to inherit the estate of the intestate where the latter’s widow has not male issue. 78 snc obi (n 53) 187-188. 79 ibid. 80 ibid. 81 (1997) 7 nwlr (pt. 512) 283. 82 (1989) 2 nwlr 373. 83 see muojekwu v muojekwu (n 3 above). 84 see i ogugua, gender dynamics of inheritance rights in nigeria: need for women empowerment (folmech printing co ltd, 2009) 162. african customary and religious law review 1 (2020) page | 17 when there was a further appeal of the case to the nigerian supreme court in muojekwu v iwuchukwu,85 justice uwaifo criticized the earlier court of appeal pronouncement as follows: i cannot see any justification for the court below to pronounce that the nnewi native custom of oli-ekpe was repugnant to natural justice, equity and good conscience….the learned justice of appeal was no doubt concerned about the perceived discrimination directed against women by the said nnewi oli-ekpe custom and that is quite understandable. but, the language used made the pronouncement so general and far-reaching that it seems to cavil at, and is capable of causing strong feelings against, all customs which fail to recognize a role for women. for instance, the custom and traditions of some communities which do not permit women to be natural rulers or family heads. the import is that those communities stand to be condemned without a hearing for such fundamental custom and tradition they practice by the system by which they run their native communities.86 subsequently, in anaekwe v nweke87 and ukeje v ukeje88 the nigerian supreme court deprecated all nigerian native customs which disinherit females as discriminatory and therefore, unconstitutional. in the latter case, the supreme court, per justice rhodes-vivour, held that: the igbo native law and custom which disinherits a female from inheriting in her father’s estate is void…. no matter the circumstances of the birth of a female child, such a child is entitled to an inheritance from her late father’s estate…the igbo customary law which disentitles a female child from partaking in the sharing of her deceased father’s estate, is in breach of s 42(1) and (2) of the constitution, a fundamental right provision guaranteed to every nigerian.89 it must be noted that in some parts of igbo land, there used to be an exception to the rule that daughters do not inherit from their late fathers. in some parts of idemili local government area, and in nnewi town, both of anambra state, nigeria, a daughter in respect of whom the nrachi ceremony has been performed inherits her father’s compound and other lands and houses.90 the nrachi ceremony is usually performed where a man has only daughters but no son. in order to ensure the continuation of the family line, he persuades one of his daughters not to marry but to remain in the family with the hope of bearing a male heir to the estate of the intestate.91 however, in amade v nmechi92 and muojekwu v ejikeme,93 the nigerian courts have held that the nrachi custom not only failed the repugnancy test because children born to a woman who had undergone this ceremony are denied the paternity of their natural father, but also offended section 42 (2) of the 1999 constitution, and so is discriminatory. widows, widowers and unmarried womenit was the rule in the igbo customary law that a widow is not entitled as of right to succeed to the personal or real estate of her deceased husband.94 this is because in customary intestacy, devolution of property follows the blood line.95 therefore, a wife or widow, not being of blood, has no claim to any share. however, according to nwabueze, a widow who chooses to remain in the husband’s house and in his name is entitled, in her own right and, not withstanding that she has no children, to go on occupying the matrimonial home and to be given some share of his farmland for her cultivation, and generally to maintenance by her husband’s family. should her husband’s family fail to maintain her, it seems that she can let part of the house to tenants and use the rents obtained thereby to maintain herself. her interest in the house or farmland is merely possessory, and not proprietary, so that she cannot dispose of it out-and-out.96 the right of maintenance of widows in igbo customary law was stated in nezianya v okagbue97 and restated in ejiamike v ejiamike.98 however, there has been a change in the judicial attitude to the right of succession of widows in southeastern nigeria with the supreme court decisions in anaekwe & ors v nweke99 and ukeje v ukeje.100 in anaekwe v nweke, the question for determination before the nigerian supreme court was whether the respondent who had no male child could inherit the property of her late husband. justice ogunbiyi, with a very strong language stated that: 85 [2004] 11 nwlr [pt 883] 196. 86 ibid. 87 (2014) 9 nwlr [pt 1412] 393. 88 (2014) 11 nwlr [pt 1418] 384. 89 ibid. 90 ip enemuo (n 4) 404-405. 91 ei nwogugu (n 4) 426. 92 (2008) 10 nwlr [pt 1094] 1 ca. 93 (2005) 5 nwlr [pt 657] 402. 94 nezianya v okagbue (1963) 1all nlr 352; ei nwogugu (n 4) 426. 95 b nwabueze (n 4) 389-390. 96 ibid. 97 (1963) 1 all nlr 352. 98 (1972) 2 eslr 11. 99 see (n 3 above). 100 see (n 3 above). emeasoba: an evaluation of the nigerian judicial attitude to the igbo customary law of succession page | 18 any culture that disinherits a daughter from a father’s estate or wife from her husband’s property by reason of god instituted gender differential should be punitively dealt with. the punishment should serve as a deterrent measure and ought to be meted out against the perpetrators of the culture and custom. for a widow of a man to be thrown out of her matrimonial home, where she had lived all her life with her late husband and children, by her late husband’s brothers on the ground that she had no male child, is indeed very barbaric, worrying and flesh skinning.101 a related question to the succession of widows to their late husband’s estate is whether husbands have the right to inherit the estate of their dead wives under the igbo customary law. this issue came up for determination in nwugege v adigwe.102 it was held that a husband’s right of inheritance depends upon whether the wife left any surviving issue and whether the property was acquired before or during coverture.103 the general principle is that the wife’s ante nuptial property is not inherited by the husband or his family.104 even where a man goes to live with the wife in a house built by her before marriage, the real property retains its character as ante-nuptial property of the wife unless it has become mixed with other properties acquired during coverture.105 on the other hand, property acquired by a wife during coverture devolves upon her children, subject to the husband’s right to use it concurrently with the children during his lifetime.106 where the wife leaves no issue to inherit, the husband succeeds to the property.107 however, where the deceased wife leaves no issue or husband to inherit, the wife’s family has no claim to the property which she acquired during coverture, as these properties will go to the husband’s relatives – his children by other wives, brothers etc.108 according to nwabueze, ordinarily, inheritance of a wife’s property by her husband in default of issue contradicts the general principle that devolution follows the blood, but is explainable by the fact that marriage has the effect of transferring the wife to the husband’s patri-lineage, and subjecting her to the control of the husband and his patri-lineage.109 illegitimate children an illegitimate child is a child born out of wedlock (whether statutory, customary or islamic marriages).110 under strict igbo customary law of inheritance, an illegitimate child is deprived of succession rights to the estate of his natural father unless there is evidence, whether expressly or impliedly that there was subsequent acknowledgement by the father during his lifetime.111 this is the product of the decision in onwudinjo v onwudinjo112 where the court did not allow the illegitimate child to inherit the estate of his putative deceased father, since there was no evidence of subsequent acknowledgement. however, the disinheritance of illegitimate children under igbo customary succession law has been struck down by section 42(2) of the 1999 nigerian constitution, which prohibits any form of discrimination based on the circumstances of one’s birth.113 5. evaluation of the judicial engagement with the igbo customary succession law in evaluating the nigerian judicial engagement with the igbo customary law of succession, one is tempted to ask ‘have the nigerian courts done enough to engage with the primogeniture principle which is at the centre of igbo customary law of inheritance?’ since the supreme court’s decision in ukeje v ukeje, scholars have massively hailed that decision as a development of customary law in nigeria.114 admittedly, that decision climaxed the subjection of nigerian customary laws to constitutional provisions and bill of rights, and in a major way, facilitated the movement of the nigerian courts away from the so-called colonial ‘validity test.’115 since lord atkins in eshugbayi eleko v officer administering the government of nigeria116 declared that a barbarous custom is one that is repugnant to natural justice, equity and good conscience, this standard has been applied unwittingly by nigerian courts to strike down indigenous customs, despite the fact that ‘natural justice, equity and good conscience’ has never been defined, nor have judges attempted to clearly articulate its meaning.117 as elias put it, ‘in many of the cases decided on this principle, no 101 (2014) 9 nwlr [pt 1412] 393. 102 (1934)11 nlr 134. 103 ibid. 104 b nwabueze (n 4) 390-391. 105 ibid. 106 ibid 107 ibid. 108 ibid. 109 ibid. 110 ei nwogugu (n 4) 429. 111 ibid. 112 (1958) 11 ernlr 1 113 see salubi v nwariaku & ors (2003) 7 nwlr [pt 819] 426. 114 see n chinwuba ‘ending inequality in nigeria: a refreshing approach from the nation’s judiciary’ (2015) 29 international journal of law, policy and the family 341; o edu ‘a critical analysis of the laws of inheritance in the southern states of nigeria’ (2015) 60 journal of african law 149. 115 see ac diala (n 5) 100, 105. 116 (1931) ac 662 673. 117 a obilade, the nigerian legal system (sweet & maxwell, 1990) 100. african customary and religious law review 1 (2020) page | 19 consistent principle is discernible and some of the decisions are hard to justify.’118 by subjecting the primogeniture principle to the equality and discrimination sections of the nigerian constitution,119 the nigerian supreme court surely applied an acceptable standard. however, this article argues that the decision’s overwhelming commendation masks its reductionist and inadequate engagement with the igbo customary succession law, especially the primogeniture principle. perhaps, this explains why it has been difficult to implement the recent decisions in real practice. the major problem is that in outlawing the primogeniture rule, the nigerian courts have not adequately examined the social settings under which the rule developed, in order to comprehensively address its ills. the truth is that the primogeniture rule is a product of a patri-lineal culture aimed at preservation of the family and protection of the overall family welfare. from pre-colonial times, its original purpose was to preserve the best interests of all the dependants of an intestate under the supervision of the eldest surviving son.120 it was not originally packaged as an instrument of discrimination within the igbo traditional family set-up. the problem was that ‘colonial rule changed the setting in which the primogeniture rule emerged.’121according to korieh, this change led to the following socio-economic changes: (a) diffused family structures no longer based and organised on close-knit units; (b) nuclear families accustomed to a western culture that cares little for the notion of extended families; (c) the disappearance of a correlation between heirs’ inheritance of deceased persons’ assets and duties to provide support and maintenance to the deceased’s dependants; and, finally, (d) a changed land tenure system.122 since the colonial masters only recognized customary law for administrative purposes, they cared less about its development.123 with time, customary law in nigeria (as in igbo land) evolved into a strange creature with the effect that there seemed to be a divide between the ‘official customary law’ and the ‘unofficial living customary law.’124 hence, today, while the ‘unofficial living customary law’ of inheritance in igbo land has changed from what it was or was meant to serve in pre-colonial times, the ‘official customary law’ in the books has not. unfortunately, with the influence of colonialism, unofficially, eldest surviving sons in igbo families today inherit properties of their intestate fathers without taking over the responsibility of social welfare to other members of their families, male and female. yet, the nigerian courts continue to condemn the ‘official igbo customary law of inheritance’ as it would the ‘unofficial igbo customary law of inheritance.’ the challenge before the nigerian courts today, therefore, is to engage the primogeniture principle in the context of its evolvement from pre-colonial to colonial times, in order to distil what the law really is and what the practice has come to be. if the nigerian courts would serve the democratic ideals of the modern-day nigerian society, its condemnation of the primogeniture rule in the post-colonial era must recapture the pre-colonial ‘best interest of all the depandants’ principle, albeit without the need for the gargantuan supervisory role of the eldest surviving son. the fact that, in prohibiting the primogeniture principle, the nigerian courts only recognize the discrimination and deprivation of female heirs in igbo succession law, without paying equal attention to the discrimination and deprivation of all other younger male heirs is, at best, reductionist and limited. no doubts, given modern factors like the dispersion of traditionally closely-knit family units, demographic movements from villages to the cities, ownership of properties by intestates in cities and not on family land etc, it makes no sense in modern times maintaining the primogeniture principle whose utility served a pre-colonial agrarian society. however, in prohibiting the primogeniture principle, it is not enough for the nigerian courts sitting far away from the locus in quo, to levy condemnations on the igbo inheritance culture without having regard to the functions the particular custom was meant to serve and the social settings under which it originated and evolved. there is need for the nigerian courts to wholesomely engage the igbo customary law of inheritance so as to make sure that the prohibition of the primogeniture principle will secure the best interest of all the dependants of an intestate, males and females inclusive. 6. conclusion the igbo customary law of succession, which ultimately espouses the primogeniture principle, has been lambasted by the nigerian courts for violating the equality provisions of the nigerian constitution and discriminating against women. as laudable as these decisions appear, this article argues that the judicial engagement with the igbo customary law of inheritance has been anything but thorough and comprehensive. there is need for the courts to examine the social settings within which the igbo succession law evolved and developed in order to properly distinguish the purposes which the custom came to serve and the problems which its current practice precipitates. 118 t elias, the judicial process in commonwealth africa (university of ghana, 1977) 53. 119 constitution of the federal republic of nigeria (as amended) 1999, s 42 (1) & (2). 120 ac diala (n 8) 632-637. 121 ibid 637. 122 cj korieh, the land has changed: history, society and gender in colonial eastern nigeria (university of calgary press, 2010) 37-58 , 97-121. 123 gr woodman ‘some realism about customary law – the west african experience’ (1969) wisconsin law review 128151. 124 cn himonga (n 7) ibid. acarelar 2 (2021) page | 89 female genital mutilation: a socio-cultural myth on the rights of nigerian women* abstract right from the creation of man, human rights have been accorded to all human beings, both male and female. this notwithstanding, the protection and enforcement of women’s human rights have not been hitch free as a result of the mythological conceptualization of women as being inferior to men under the christian and islamic religions on the one hand, and the regarding of women as chattels capable of being owned by men under the customary laws of both african and nigerian societies. this high level of inequality between both sexes has resulted into the denial of some basic human rights of nigerian women and the subjection of women to some obnoxious and discriminatory practices such as female genital mutilations.1 this work critically examined the practice of fgm in nigeria and found out that the reason behind this practice is based on socio-cultural myths. recommendations were on the ways towards eliminating the pandemic called fgm. keywords: female genital mutilation, human rights, inequality, socio-cultural myths, nigeria, women 1. introduction it is a well accepted fact that the principles of human rights postulate that human rights are the birth rights of all human beings irrespective of sex, colour, origin, status, et cetera. however, in every society, there exists social stratification, discriminations, prejudices and injustices which obviously evolved from the historical, political, economic or religious experiences of such society.2 in nigeria for instance, female genital mutilation exists as a result of the socio-cultural perception of women as being inferior to men for more than two thousand years now.3 as such, all qualities, rights and privileges women are naturally endowed with that are perceived as capable of placing them at par with men are scuttled by the male dominated nigerian societies in order to subjugate women to men’s domination. this idea led to the conception of fgm which is a procedure performed on women by partially or totally removing the external female genital and more often, the labia minora and the clitoris, in order to deny women the natural enjoyment of sexual activities. 4 it is not in doubt that fgm is usually performed on young girls without their consent.5 in fact, these little girls cannot be said to have the requisite capacity to give their consent by virtue of their tender ages. even adult females who pass through this procedure are either forced or coerced to do so to comply with this age long cultural practices of their societies. this age long tradition has persisted in nigeria inspite of all known human rights legal instruments which nigeria has acceded to. it is also known that fgm runs contrary to right to life guaranteed to all nigeria citizens, especially when its performance results to death.6 this study shall examine the practice of fgm with a view to ascertain both its origin and the reason behind its practice; types of fgm, prevalence of fgm in nigeria, fgm as a socio-cultural myth, health by samson obi umeh, phd, private legal practitioner at osuohia zion legal consult, 127 wetheral road, owerri, imo state. e-mail address: elisarahumehsam@yahoo.co.uk. phone number: 08036778342.  sarah igbokwubiri umeh, phd, associate professor of microbiology and acting head of department, department of environmental health sciences,federal university of technology, owerri, imo state. phone number: 08063365313.  aloy ojilere, faculty of law imo state university, owerri, imo state, aloyojilere@yahoo.com. phone:08033277550; and  anno domini chukwumaeze samson-umeh, a solicitor with osuohia zion legal consult, 127 wetheral road, owerri, imo state. phone number: 08068643793. 1 hereinafter referred to as ‘fgm’. 2 lemechi, b. osu na ume the igbo untouchable caste systems, (owerri, milestone publishers ltd. 2011,) p.5. 3 g azuonwu., et. al.‘female genital mutilation: a dehumanizing practice against womanhood in nigeria’, international journal of research and reports in gynecology 3(2) july, 2020, p.14. available at http://www.sadiourticle4.com/reviewhistory/58. 8869 accessed 6th march, 2021. 4 ibid. 5 ibid. 6 constitution of the federal republic of nigeria (as amended), section 40, hereinafter referred to as ‘cfrn’. mailto:elisarahumehsam@yahoo.co.uk mailto:aloyojilere@yahoo.com umeh, umeh, ojilere & samson-umeh: female genital mutilation: a socio-cultural myth on the rights of nigerian women page | 90 challenges associated with the practice of fgm, as well as the current position on the fgm practice in nigeria. recommendations shall be made on the ways to eliminate this scourge in nigeria. 2. definition of relevant terms it must be stated at this juncture that an incisive journey into the mainstream of this discourse cannot progress without a clear understanding of the meaning of some concepts and terms used herein. the term ‘customary law’ can be defined as ‘a set of customs and traditions regulating the various kinds of relationships between members of a particular community and of which the members recognize as binding on them’.7 in nigeria for instance, customary law is classified into ethnic or non-muslim customary law, and muslim customary law.8 it must be explained that while the former is indigenous to nigeria and largely unwritten, the latter is written and a muslim law which is not indigenous to nigeria, being a received customary law introduced into the country as part of islam. 9 female genital mutilation also known as female circumcision has been defined as ‘all procedures involving partial or total removal of the external female genitalia or other injury to the female genital organs whether for cultural or other non-therapeutic reasons’.10 it is also worthy of note that the word ‘right’ as derived from the latin word rectus denotes correct, straight, right as opposed to wrong, in accord with law, morality and justice. 11 right has been more broadly defined as 12 ‘…those claims which are also supported by or in accord with some objective standards (or some general theory) whether those of code of morality or ethical theory, or those of political system, are usually and aptly called right’. another term used in herein worthy of definition as a result of its relevance to this paper is the term ‘human rights’. according to the supreme court of nigeria, 13 human right is a right which stands above the ordinary laws of the land and which is in fact antecedent to the political society itself. it is a primary condition to a civilized existence, and what has been done by our constitution since independence is to have these rights enshrined in the constitution so that the right could be immutable to the extent of the non immutability of the constitution itself. similarly, the term ‘woman’ has been defined as any member of the female sex, whatever her age or status.14 it is however submitted that this definition is faulty in that it failed to define a woman and her features, and did not include the girl child whose rights are most frequently violated, in the category of women. in the view of the writer, a woman can be defined as a female human being as opposed to man, with developed or partly developed female reproductive organs such as, the breast, womb, the vagina, etce tera. however, the question ‘who is a woman’ has been complicated by the existence of hermaphrodites, pseudo-hermaphrodites and advances in medical science which has made sex change operations feasible. in the case of corbett v corbett, the petitioner and the respondent were married, with the petitioner knowing from the inception of the marriage that the respondent had been registered at birth as a male but had undergone operation for the removal of the testicles, most of the scrotum and the construction of an artificial vagina sometime in 1960.15 the court held that the respondent had remained at all material times, a biological male. this judicial precedence no doubt, laid to rest the controversy as to scientifically made women. it is however submitted that in the case of natural hermaphrodites, what should be the determinant factor in deciding their sex is their most developed sexual organs. 7nwebo,o. law and social justice in a developing society (a critical approach), (owerri, universities press limited, 1995) p.78. 8 ibid. 9 obilade, a. the nigerian legal system, (ibadan, spectrum law publishing, 2000) p. 83. 10 p ibekwe et. al. ‘female genital mutilation in south eastern nigeria: a survey of current knowledge and practice’ journal of public health and epidemiology vol. 4 (5) may, 2012, p.117, available at http://www.academicjournals.org/jphe accessed may, 2021. 11 ngwakwe, e. issues in human right guarantees, (owerri, hudson – jude press ltd, 2008) p.1. 12 dowrick, f. (ed) human rights, problems, perspective and texts, (u. k, saxon house, westmeal, 1979) p .8. 13 ransome – kuti v a.g. federation (1985) s. c. p.246. 14 section 91 labour act, cap l1, laws of federation of nigeria, 2004. 15 (1971) 31 m.d.l.r.244. acarelar 2 (2021) page | 91 3. female genital mutilation it has been stated that the origin of the practice of fgm in nigeria is shrouded in secrecy and uncertainty.16 there is however speculation that fgm originated in ancient egypt.17 this notwithstanding, fgm has been practiced in nigeria for more than thousands of years by muslims, christians and even heathens applying types of fgm varying from culture to culture, as well as the location of the people, either rural or urban.18 even educated and enlightened mothers indulge in the practice fgm without actually bothering about the damage such practice may cause to their female children and wards.19 it was estimated in 2006 that about 60% of nigerian female population have undergone one or a combination of the forms of fgm.20 by the year 2020, it was estimated that about twenty million nigerian women had undergone fgm.21 this represents 10% of the about two hundred women that had undergone the procedure worldwide. 22as a matter of fact, fgm is regarded so normal in nigeria that nigerians cannot imagine a woman who has not undergone this procedure.23 it has also been estimated that three million women worldwide are liable to undergo fgm annually.24 although fgm most likely takes place in nigeria during childhood, it has been confirmed that about 82% of women aged 15-49 had undergone the procedure before the age of five.25 however, in some ethnic groups in nigeria, women undergo the procedure during the birth of their first children, just because is widely believed that its performance is critical for such child not to touch its mother’s clitoris.26 it has also been reported that in some communities, if it is discovered that a deceased woman did not undergo the procedure before her death, fgm must be performed on her before burial.27 fgm has been described as a violent damage caused to the outset organ of a group of people that can bear children or produce eggs, by excising parts of their female organs, ie, vagina, thereby causing substantial damage.28 obviously, it is because of the harmful physical, psychological and human rights consequences associated with such procedure that made it to be tagged ‘female genital mutilation’. arinze-umobi stated that: 29 the ordeal of a woman undergoing fgm includes: ceasing the little girl entirely nude in a sitting position on a low stool, with her arms tightly around her chest by at least three women; one or two of the women will hold the girl’s thighs apart by force in order to open wide the vulva; then the person that carries out the procedure takes razor and excises the clitoris, from top to bottom of the small lip and then repeatedly scraps the flesh from the inside of the large lip. after this operation, there is no doubt that the little girl will remain immobile for approximately forty days to at least allow for the formation of scar tissue. the most unfortunate incident is that fgm is most commonly performed on females by highly respected women in the community, including traditional 16. t okeke et al., ‘an overview of female genital mutilation in nigeria’, (2012) annals of medical research vol. 2. no.1. p.17. 17. 28 too many, ‘country profile:, fgm in nigeria’oct, 2016’, available at http://www. 28toomany.org/static media/uploads/country%20images/pdf/nigeria_country_profile_final.compressed.pdf accessed 30th may, 2021 18 p ibekwe et. al. ‘female genital mutilation in south eastern nigeria: a survey of current knowledge and practice’ (supra), p117. 19 arinze-umobi, c. domestic violence against women in nigeria: a legal anatomy, (onitsha, fo/mech. printing publishing co. ltd, 2008) p. 72. 20 eya, patrick, education and harmful traditional practices against women in nigeria, worec journal of gender studies,volume .1. no. 3, june, 2006, p.93. 21 g azuonwu. & r ezekiel, ‘female genital mutilation: a dehumanizing practice against womanhood in nigeria’ (supra), p.17. 22 ibid. 23 ibid. 24 ibid. 25 28 toomany, ‘nigeria: the law and fgm’ june, 2018, p.1. available at http://assets.publishing.service.gov.uk>accessed 30th may, 2021. 26ibid. 27 ibid. 28 country policy and information note on nigeria: female genital mutilation (fgm), version 2.0. august, 2019’, p.22, available at www.justice.gov./eoir/page/file/1194691/download accessed 6th march, 2021. 29 arinze-umobi, c. ‘domestic violence against women in nigeria: a legal anatomy’ (supra), p. 72. http://assets.publishing/ http://www.justice.gov./eoir/page/file/1194691/download umeh, umeh, ojilere & samson-umeh: female genital mutilation: a socio-cultural myth on the rights of nigerian women page | 92 birth attendants, local barbers, medical doctors and health workers usually without the use of anaesthesia.30 4. types of fgm it must be pointed out that nigeria is made up of about two hundred million people, with over two hundred and fifty ethnic groups.31fgm is rampantly practiced among these ethnicity although the forms of fgm practiced vary from society to society, and from ethnicity to ethnicity.32 fgm is generally classified into four major types as discussed below. type i: this type of fgm which is usually referred to as ‘clitoridectomy’ involves the partial or total removal of the clitoris, leaving a small sensitive and erectile part of the female genitals,; or in rear cases, only the prepuce is left out. 33 type ii: this type of fgm which is referred to as ‘excision’ and involves the partial or total excision of the clitoris and the labia minora; with or without the excision of the labia majora. 34 type iii: this form fgm is known as ‘infibulations’ and actually involves the narrowing of the vagina by creating a covering seal, which seal is formed by cutting and repositioning the labia minora or, labia majora.35 this is achieved by stitching the aforementioned vaginal parts with or without removing the clitoris. 36 type iv: this form of fgm otherwise known as ‘nclasified’ involves the use of other harmful procedures on the genital such as scraping, incising, piercing, pricking and cauterizing the female genital areas.37according to arinze-umobi, this type of f.g.m. may also be performed by a systematic dropping of hot water on the clitoris and the general area of the female vulva, so that the sensitivity of that area is generally killed or waned.38 similarly, ‘anguyra’ cut which is a form of traditional surgery or scrapping to remove hymen and often tissue surrounding the virginal orifice, is performed in nigeria.39‘ similarly, gishiri’ cut which refers to cut made in vaginal walls in cases of obstructed labour, is also performed in nigeria.40 it has been proven that the most common type of fgm practiced in nigeria is type ii, with 62.6% of women having undergone this procedure. 41 on the other hand, while 5.8% of women have undergone type i procedure which is nicked ‘clitoris nicked’ or ‘no flesh removal’, 5.3% of women have undergone type iii procedure42 similarly, while angurya cuts have been performed on 24.9%; gishiri cuts have been performed on 5.1% women, who may have also experienced other or unclassified types of fgm.43 it must be pointed out at this juncture that although fgm is widely practiced in nigeria, the types of fgm practiced vary from ethnicity to ethnicity, and location to location. it has been confirmed that while type ii is about the most prevalent form of fgm practiced in nigeria and in fact, globally, as it accounts for 80% of the procedure practiced; type iii which is the most severe form of fgm accounts for 15% of all fgm procedures performed in nigeria.44 there is abundant evidence showing that while types i and ii are most commonly practiced in southern parts of nigeria, types iii and iv are commonly 30 u epudu et. al. ‘the epidemiology of female genital mutilation in nigeria-a twelve year review’, afrimedic journal, volume 6, no.1, january, 2018, p.3. 31 28 toomany, ‘country profile:, fgm in nigeria’oct, 2016’, (supra). 32 country policy and information note on nigeria: female genital mutilation (fgm), version 2.0. august, 2019’(supra),, p.17, 33 ibid. 34 ibid. 35 ibid. 36 ibid. 37 arinze-umobi, c. domestic violence against women in nigeria: a legal anatomy, op. cit. p.72. 38 ibid. 39 country policy and information note on nigeria: female genital mutilation (fgm), version 2.0. august, 2019’, op. cit. p.17. 40 ibid. 41 national bureau of statistics/bs//unicef, ‘multiple indicator cluster survey (mics), 2016 – 17’ february, 2018, available at http://www,unicef.org/nigeria/media/1406/file/nigeria-mics-2016-17.pdf.pdf accessed 10th july, 2019. 42 ibid. 43 ibid. 44 country policy and information note on nigeria: female genital mutilation (fgm), version 2.0. august, 2019’, op. cit. p.17, acarelar 2 (2021) page | 93 practiced in northern parts of nigeria. 45 apart from the practice of more severe forms of fgm such as angruya cuts, gishiri cuts and uses of corrosive substance made to tighten the vagina in some northern parts of nigeria, it has been confirmed specifically that types iii and iv of fgm are mostly practiced in nasarawa and kaduna states of the north-central and north-west, with women that have undergone these procedures put at 22% and 21% respectively.46 5. prevalence of fgm in nigeria although prevalence of fgm varies across all ethnic groups, religion and regions in nigeria, there is evidence that prevalence of fgm is not influenced by the women’s place of residence or sojourn.47 in nigeria for instance, prevalence of fgm appears to be highest amongst wealthier, educated and urban areas resident women in nigerian, although evidence abound that these women are least likely to allow their own daughters to be cut before the age of 15.48 it has also been shown that while 32% of nigerian women resident in urban areas have been circumcised, only 19% of rural women have undergone fgm. 49 similarly, the percent of nigerian women practicing traditional religions that have undergone fgm is 34%, christianity-29.3%, and islam-20.1%.50 the prevalence of fgm among some ethnic groups in nigeria in accordance with their respective populations is as follows: hausa-19.4%%, fulaani-13.2%, yoruba-54.5%, igbo-25.2%, ijaw-11%, ekoi56.9%, igala-0.5%, kanuri-2.6%, tivs-0.3%.51 it is correct to state that among the thirty-six states of nigeria, osun state in the south-west nigeria has the highest prevalence of fgm in nigeria with 77%, followed by ebonyi state in the south-east with 74%.52 kastina state in the north-west has the lowest prevalence of fgm in nigeria with 0.1%, kano state has prevalence of 13%, while kaduna state in the same north-west has prevalence of 34%.53 it is evident from the above analysis that fgm is widespread in the southern part of nigeria compared to northern part nigeria, although in the latter, more severe forms of fgm such as angruya cuts, gishiri cuts and uses of corrosive substance are made to tighten the vagina.54 it has also been reported that while 18.4% of nigerian girls aged 15–49 years have undergone fgm, 25.3% of daughters aged 0-14 years have also undergone the procedure.55 research has shown that 82% of women underwent fgm procedure before the age of five; 4% of women underwent the procedure between the ages of five and nine years; and while 5% of women underwent the procedure between the ages five and fourteen years, while 7% of women underwent the procedure from the age of fifteen and above.56 research has shown that the highest fgm prevalence in women between 15–49 years of age is in the south-east with 32.5%; 41.1%; in the south-west, 23.3%, in the south-south, 19.3%; in the north west, while the north-east has the lowest prevalence with about 1.4% prevalence. 57 it must be pointed out at this juncture that although fgm is performed few days after birth,58 there are indications that the ages at which nigerian women undergo the procedure vary from one ethnicity to another. 59 this is because while 38% of ijaw/izon women usually undergo the procedure from age fifteen and above; most women from the south eastern states of abia, enugu and imo undergo the procedure 45 g azuonwu . & r ezekiel, ‘female genital mutilation: a dehumanizing practice against womanhood in nigeria’, op. cit. p 15. 46 daniyan et al., review of the prevalence of female genital mutilation in nigeria: epidemiology’, quoted by g azuonwu et al ‘female genital mutilation: a dehumanizing practice against womanhood in nigeria’,op. cit. p. 15. 47 ibid. 48ibid. 49country policy and information note on nigeria: female genital mutilation (fgm)’, op.cit. p.21. 5028 toomany, ‘country profile:, fgm in nigeria’oct, 2016’, op.cit. 51ibid. 52 country policy and information note on nigeria: female genital mutilation (fgm)’, op.cit. p.17. 53 ibid. 54 ibid. 55 national bureau of statistics/bs//unicef, ‘multiple indicator cluster survey (mics), 2016 – 17’ february, 2018, op. cit. 56 nigerian populations commission, ‘nigeria demographic and health survey, 2013’, published in june, 2014, p.345, available at http://dhsprogram.com/publications/publications-fr93dhs-finalreports.cfmaccessed 30th july, 2019. 57 national bureau of statistics/bs//unicef, ‘multiple indicator cluster survey (mics), 2016 – 17’, op. cit. 58united nations population fund – fgm frequently asked questions, december, 2015, available at http://www. unfpa.org/resources/female-genital-mutilation-fgm-frequently-asked-questions#age accessed 20th july, 2019. 59 nigerian populations commission, ‘nigeria demographic and health survey, 2013’, op. cit. http://dhsprogram.com/publications/publications-fr93dhs-finalreports.cfmumeh, umeh, ojilere & samson-umeh: female genital mutilation: a socio-cultural myth on the rights of nigerian women page | 94 before age five.60however, evidence abound that women from the north-east undergo the procedure at the age of fifteen or above. 61 it is apposite to state here that prevalence of fgm among the women of the age under consideration in urban areas, which is 23.4%, seems to be higher that of women in rural areas which is 15.6%.62 it has been established that the highest prevalence of fgm for girls under 0 – 14 years is north west with 56%, south west 21.6%, north central 16.1%, south east, 12.7%, south-south, 6.1%, and north east, 1.4%. 63it has also been established that girls in the age bracket under consideration that have undergone the procedure in the urban areas in nigeria accounts for 20.5%, while their counterparts in the rural areas account for 28.8%.64 6. fgm as a socio-cultural myth it is correct to state at this juncture that although both christians and muslims practice fgm in nigeria, there is no perceived religious prerequisite or injunction emanating from these two abrahamic faiths that sanctions fgm.65 it is equally correct to state that none of the holy books of these religious faiths namely, the holy bible and holy koran recommends or approves fgm either as a ritual or part of fulfillment for the faith. 66. a thorough examination of the two holy books shows that only the holy bible recommends that circumcision be performed on the male descendants of abraham. 67 on the other hand, the practice of fgm has no medical benefit, but rather, uncountable serious health challenges/problem.68 in the light of the above, it can safely be concluded that fgm is practiced to satisfy cultural and ethnic identity.69 according to saracoglu and ozutur, the cultural beliefs behind fgm include ‘initiation into womanhood; to control a woman’s sexuality, ie, as a means of preventing promiscuity/prostitution, as well as satisfaction of some customary beliefs about physical cleanliness’. 70 similarly, a woman with great community pressure to have fgm performed on her because her clitoris or genitals are dirty, dangerous or constitutes a source of irresistible temptation, will most likely submit to the performance of the procedure in order to be relieved psychologically, especially where other females have undergone the procedure.71 this is because an uncircumcised non-infibulated girl remains an object of ridicule whom no one in the community will ask for her hand in marriage.72 it is also believed in some nigerian communities that fgm increases sexual pleasure for the men and thus, a religious duty that must be performed by all women. 73 as such, women are under social and peer pressure to undergo the procedure in order not to risk victimization and stigma if they refuse to undergo the procedure. 74 the above assertions are based on the fact that in nigeria, a woman’s social standing or position in her community is linked with the issue of sex control, reason being that it is culturally believed that the natural destiny of every woman is marriage and subsequent procreation.75 this explains why the fight towards the elimination of f.g.m. appears to be an uphill task.76 worst still, in areas where virginity at marriage is highly valued and where pre-marital pregnancy is frowned at, 60 national bureau of statistics/bs//unicef, ‘multiple indicator cluster survey (mics), 2016–17’, op. cit. 61 ibid. 62 ibid. 63 country policy and information note on nigeria: female genital mutilation (fgm)’, op. cit. p.17, 64 ibid. 65 y olomojobi, (human rights on gender, sex and the law in nigeria, pricenton publishing co., lagos, 2013) p.19. 66 ibid. 67 genesis 17 verse 9-14 (kjv). 68 h bodurin, ‘female genital mutilation: perceptions and beliefs in a nigerian rural community, quoted by g azuonwu . et. al‘female genital mutilation: a dehumanizing practice against womanhood in nigeria’, op. cit. p.16 69 m saracoglu & h ozutur, female circumcision andrology and gynecology: current research, quoted by g azuonwu . et. al‘female genital mutilation: a dehumanizing practice against womanhood in nigeria’, op. cit. p.15 70 ibid. 71 ibid. 72 ibid. 73 t okeke et al., ‘an overview of female genital mutilation in nigeria’, op.cit. p,71. 74 ibid. 75 arinze-umobi, c. domestic violence against women in nigeria: a legal anatomy, op. cit. p. 68. 76 ibid. acarelar 2 (2021) page | 95 parents sternly endeavour to exercise maximum control over their daughters’ movement just to ensure that they do not lose their virginity or become pregnant before marriage.77 it is submitted that the reasons for the practice of fgm is shrouded in cultural mythology as it is based on the false assumption that women are inferior to men. fgm is thus one of the calculated modes used by culture and religion to deny nigerian women of their human rights contrary to the concept of universality of human rights. more so, fgm is a harmful traditional practice which expressly offends the provisions of the constitution of nigeria which states that: 78 ‘every individual is entitled to respect to the dignity of his person and accordingly, no person shall be subjected to torture or to inhuman or degrading treatment. fgm is also prejudicial to woman’s right to life, bodily integrity, health and sexuality,79 as well as the health of the child which the nations of the world have been urged to protect.80 fgm is more condemnable considering the fact that it is usually carried out either without the consent of the victim, or with her consent tainted with coercion or undue influence. 81 this is because in most cases, the consent of fgm victims are sidetracked and such consent is gotten from either the victims’ parents or their grandparents. 82 the court has held in the case of prince v massachussett that: 83 ‘parents may be free to make martyrs themselves, but it does not follow that they are free to make martyrs of their children before they have reached the age of full and legal discretion, when they can make the choice for themselves’. 7. health challenges associated with the practice of fgm it must be stated categorically that the belief that fgm protects women from sexually transmitted infections as is the case with male circumcision has long been disproved. 84 contrary to male circumcision, the victims of fgm are usually prone to a number of short and long term health challenges associated with fgm. some of these short and long term health challenges shall be fully discussed below. 8. psychological challenges as stated earlier, the performance of fgm on women starts with the use of knife or other cutting equipment, the mere sight of which, or the slightest idea that there will be an imminent surgical interference in highly sensitive areas such as the female genitals is enough to trigger off physical and psychological trauma, night mare, panic, anxiety and a sense of humiliation on the part of the girl/woman.85 in some severe cases of fgm, the excision of the clitoris or other parts of female genitalia may result to the reduction of sexual response which may in turn, lead to anogasmia and frigity.86 apart from this ailment, patient with vaginal obstetric fistula may also develop urinary or faecal incontinence that may result into physical, socio-cultural and psychological problems for the patient.87 in some severe cases of fgm, consummation may take several weeks as a result of tight infibulations; or up to two years to complete, possibly to allow the wife seek medical help for infertility. 88 there have been instances where resort is had to anal sexual intercourse as the only source of consummation of marriage simply because husbands are unable to penetrate into the vaginae of their wives that are too tight as a result of fgm performed on these wives.89 it is therefore submitted that the hardship faced by victims 77 ibid. p. 69. 78 cfrn, section 42 (1). 79 ibid.section 42 (1), 80 article 24 (3) of united nations convention on the rights of the child, 1989; article 5 african charter on human and peoples’rights, 1986. 81 t okeke et al., ‘an overview of female genital mutilation in nigeria’, op.cit. 82 toomany, ‘country profile:, fgm in nigeria’oct, 2016’, op. cit. 83 (1944) 321 u.s. 158. 84 m reyners, ‘health consequences of female genital mutilation’, reviews in gynecological practice. 2004, vol. 4, no. 4, p. 242. 85 g azuonwu & r ezekiel, ‘female genital mutilation: a dehumanizing practice against womanhood in nigeria’, (supra), p.17. 86 s abdel –azim, ‘psychosocial and sexual aspects of female circumcision’,african journal of urology, 2013, p.141-142, available at http://www.ajo/info/index.php/aju/article/view/95973/85321-141-142 accessed 15th may, 2021. 87 ibid. 88 ibid. 89 ibid. http://www.ajo/info/index.php/aju/article/view/95973/85321-141-142 umeh, umeh, ojilere & samson-umeh: female genital mutilation: a socio-cultural myth on the rights of nigerian women page | 96 of fgm as discussed so far as well as the betrayal perceived by victims against their parents and family members who made these victims to undergo fgm, no doubt constitute indelible psychological trauma to these victims. 9. medical challenges aside the psychological challenges faced by victims of fgm discussed above, victims of fgm also encounter other health challenges associated with the practice of fgm. these health challenges have been summarized by obi and igbinadolor to include: 90 severe pain, bleeding, post traumatic stress disorders, anxiety, depression, memory loss, eating and sleeping disorders, low libido, apareunia or dyspareunia, chronic pains, dysmenorrhoea, vaginal fistula, labial agglutination, hypertrophic scar/keloids, clitoridal retention cysts, dermnoid cysts, virginal lacerations during coitus, straining at micturitation, genital tract lacerations, especially during vaginal delivery, obstructed labour, increased cases of caesarean deliveries, postpartum haemorrhage, and prenatal deaths. according to abdel–azim, fgm victims also encounter ‘genitourinary tract infections, damage to the genitalia, genital tissue scars, anemia, maternal and foetal deaths, obstructed and prolonged labour which may eventually lead to obstetric fistula (s) and vesico vaginal fistula’.91 apart from these medical challenges, fgm performed using unsterile equipment, without antiseptics, or antibiotics and in the absence of aseptic conditions increases the risk of primary infections. 92 the isolated pathogens in the different types of infections were human immunodeficiency virus, clostridium tetani, chlamydia trachomatis, neisseria gonorrhea, trichomonas vaginalis, pseudomonas pyocyanea, and staphylococcus aureus. 93 urological complications have also been reported to occur following fgm. 94 death can result from infections including tetanus as well as haemorrhage that can lead to shock.95 it is quite disappointing that irrespective of the health challenges enumerated above, there is no clear data on the mortality rate of the girls/women who underwent the fgm, although it is estimated that one out of every five hundred circumcisions result in death.96 it is submitted that this development is disastrous and a dangerous omen for nigeria which is ranked among the low economies, with limited healthcare. 10. the current position on the practice of fgm in nigeria. since the 20th century, there have been dynamic activities of women and feminists towards the realization of women’s human rights such that at the international women’s conference held in mexico in 1975, the period of 1975 to1985 was declared as the ‘international decade for women’ by the united nations.97 it was during this period that the convention for the elimination of all forms of discrimination against women was proclaimed, precisely in 1979. since then there have also been concerted efforts made globally to specifically eradicate fgm pandemic. back home, nigeria has ratified the maputo protocol and was among the countries that sponsored the resolution at the 46th world health assembly in 1993 calling for the worldwide eradication of fgm 98 today, there is monumental evidence that fgm in nigeria is on the decline. this is probably not unconnected with the high level of education made available to nigerian women, especially those in the southern part of nigeria. there is also various awareness programmes rolled out against fgm, such as the one championed by the first lady of nigeria. 99 while acknowledging that fgm awareness was high in nigeria in the past, awareness on the health consequences of fgm has been very poor among the nigerian populace as it has been shown that among the persons interviewed, about 64.3% of 90 a obi & o igbinadolor, ‘prevalence of female genital mutilation and its determinants among pregnant women in benin city, nigeria’, journal of community medicine and primary health care, vol. 30, no. 2, september 2018, p.13. 91 s abdel –azim, ‘psychosocial and sexual aspects of female circumcision’,op. cit. 92 c ivazzo et. al. ‘female genital mutilation review of clinical evidence’, 2013 archives of gynecology and obstetrics, vol. 287, no. 6. p. 1137 available at htpp://mentshec.fun/85civoor.2 accessed 17th may, 2021. 93 ibid. 94 m reyners, ‘health consequences of female genital mutilation’, op. cit. p. 242. 95 ibid. 96 ibid. 97 u nwaogu, ‘women and violence nigerian institutions’, worec journal of gender studies, volume1. no. 3. june, 2006, p. 78. 98 28 toomany, nigeria: ‘the law and fgm june, 2018’, p.1 available at http://assets.publishing. service.gov.uk> accessed 30th may, 2021. 99bid. acarelar 2 (2021) page | 97 nigerian women and about 62.1% of nigerian men are of the firm view that the practice of fgm should be discontinued.100 furthermore, the decline of fgm is traceable to the passage of anti fgm laws both at the national and state levels. in 2015 for instance, nigeria put in place a federal act that bans fgm and other harmful traditional practices against women and the girl child. 101 the vapp act expressly criminalizes fgm and punishes those who perform, engage others to perform the procedure, and as well as those who cuts, incite, abate or counsel another to attempt or perform the procedure. 102 besides the vapp act, some states in nigeria have passed laws that ban fgm in such states. for instance, in bayelsa state, there is ‘fgm (prohibition) law (2004)’; rivers state has ‘child rights law, 2009; enugu state has fgm (prohibition) law 2009’; ebony state has ‘law abolishing harmful traditional practices against women and children, 2001’; cross river state has ‘the girl child marriages and female circumcision (prohibition) law, 2000’. it must also be noted that prior to the passage of the vapp act, some states in nigeria had passed various laws dealing on child abuses, violence against women and girl child, as well as other legal instruments criminalizing the practice of fgm in some of these states. it is a thing of joy that as at june, 2018, about thirteen states in nigeria, especially the southern states, had enacted anti fgm laws. 103 however, although not much has been done by most northern states of nigeria towards passing anti fgm laws, it has been stated that the sharia penal codes which are applicable in some northern states of zamfara, sokoto, kebbi, kaduna, and kano states expressly prohibit various forms of psychological and physical violence against children. 104 there are also other enactments that prohibit the practice of fgm in nigeria. for instance, the medical act spells out various punishments against medical practitioners that carry out fgm including striking out the names of such practitioners from the register of medical practitioners and or, suspension of such medical practitioners from medical practice for six months. 105 similarly, under the national health act, it is provided that any person who removes tissue is liable to a fine of one million naira or to an imprisonment of two years, or both imprisonment and fine.106 11. conclusion and recommendations it is undisputable that fgm is a cruel procedure which is geared toward the dehumanization of the women folk. it is a discriminatory act and a pure reflection of the deep rooted inequality between men and women; as well as an outright violation of both the reproductive and human rights of women. although the practice of fgm has been out rightly criminalized in some states of nigeria through legislations, yet, its practice still exists in most communities within the states that have passed fgm laws. 107 it is concluded that the total eradication of fgm remains an uphill task and as such, it will entail more efforts on the part of the government and the people, as well as co-operation with international bodies, associations, nongovernmental organizations, etc, to change the cultural and religious mythological belief behind the continued practice of fgm practice. if not, the women folk will continue to witness deaths, diseases/infections, and the physical and psychological trauma associated with fgm from generation to generation. having discovered that fgm is a product of gender inequality which has long ago permeated into both public and private life, and having proven that myth has metamorphosed into complete violations of women’s rights in spite of all known human right instruments, there is urgent need to curb this pandemic before it is too late. as a result of the seriousness of the human rights violations associated with fgm, various ways in which this culture based myth can be totally eradicated shall be discussed hereunder. criminalizing fgm through legislations it is a well known fact that since the promulgation of the vapp act, the exact implementation of this act is uncertain. this may not be unconnected with the obvious lacuna inherent in the vapp act that has greatly impaired its efficiency. firstly, the vapp act is a federal enactment which has not been domesticated by 100ibid. 101violence against persons prohibition act, hereinafter referred to as ‘vapp act’. 102ibid. section 1 (2), (3) & (4). 10328 toomany, ‘nigeria: the law and fgm june, 2018’, op. cit. p.3. 104ibid. 105medical and dental practitioners act, laws of the federation of nigeria 2004, section 16(2). 106national health act, laws of the federation of nigeria 2014, section 48(3) (a). 107y olomojobi, ‘human rights on gender, sex and the law in nigeria’, op. cit. p.19. umeh, umeh, ojilere & samson-umeh: female genital mutilation: a socio-cultural myth on the rights of nigerian women page | 98 the federating states. secondly, vapp act failed to address cross-national border fgm. these lacuna may be behind the failure to identify any fgm case brought under the act; or list of any arrest, or convictions of persons that underwent the procedure, or those that aided or abated fgm till date. this clearly shows that the exact implementation of this act is uncertain. there is therefore urgent need to amend vapp act to fill up the aforestated lacuna, as well as mandating all the states in nigeria to domesticate the vapp act before the end of 2021. in the same vein, fgm legal instruments in the forms of conventions and treaties should also be put in place at regional and international levels with the aims of nipping the practice of fgm on the bud and to address cross-national border fgm issues. proper enforcement of fgm legislation it is envisaged that a strict enforcement of fgm legislations in nigeria may trigger an upsurge in the number of women going to perform the procedure in our neigbouring countries where such legislations are inexistent, and then return to nigeria. unfortunately, the vappa failed to address cross-border fgm. it also failed to prohibit or punish fgm carried out by nigerians in countries other than nigeria. there is need for the collaboration of security agencies in nigeria with a view to enforce fgm legislations in nigeria. there is also need for these agencies to collaborate with their neigbouring counterparts such as niger, chad, benue republic, cameroun, etc, in the fight against fgm. this will help checkmate movement across national borders in relation to the practice of fgm. this will go a long way to compliment the collaborative efforts of the federal ministry of women affairs and social development in implementing the national policy of action for the elimination of fgm in nigeria from 2013–2017, which was launched in response to the passage of vapp act. introduction of human rights as a course in educational institutions in nigeria there is also need to introduce human rights as a course in the curricula of primary/secondary and tertiary education in nigeria. through this, the information about the health implications associated with fgm will be inculcated in nigeria pupils and students. they will also understand that the belief behind the practice of fgm remains a myth and unreal. this way, fgm will become abhorrent to these pupils and students. women empowerment it is not in doubt that education is vital to the total eradication of fgm in nigeria.[there is therefore need to empower girls and women educationally and financially. this is because highly educated and financially stable women are less likely to subject themselves to fgm. they are also unlikely to subject their daughters and wards to fgm. these women are most likely to resist internal and external pressures to adhere to the practice of fgm. hence, it is advocated that women be given access to business facilities and loans, as well as employment in sensitive and highly elevated offices. unfortunately, access to qualitative education is restricted in rural areas, especially in the rural parts of northern nigeria where gender disparity in schooling still persists.108 on the other hand, women should be allowed to join politics and to hold key elective positions in nigeria such as president, vice president, senate president, speakers, as enjoyed by their fellow women in civilized countries like the united states of america, united kingdom, germany, etc. this will aid women influence positive changes geared towards to eradication of fgm. sensitization there is need to sensitize the religious and traditional leaders in nigeria about the vagueness of the belief in the practice of fgm. the town unions, youth groups, faith based organizational and other stakeholders must not be left out. these groups must be made to understand the physical and health consequences inherent in the practice of fgm, as well as the position of the law on coercing, aiding and abating those who practice or perform fgm. religious and traditional leaders must denounce and outlaw the practice of fgm through royal orders and doctrines. religious and traditional leaders must establish bodies amongst church groups and traditional bodies such as town union and youth wing that will enforce the protection of the royal orders and doctrines. as a matter of fact, there is need for a collaboration of religious and traditional leaders in the fight against fgm. it is commendable that the entire ideato north traditional institution and community policing chaired by h.r.h. eze kosman kanu, have outlawed fgm in the entire ideato north l.g.a. this traditional institution decreed that any person caught indulging in fgm shall be liable to pay a fine of one hundred thousand naira.109 108 national bureau of statistics/bs//unicef, ‘multiple indicator cluster survey (mics), 2016 – 17’, op. cit. 109 imo broadcasting corporation 9’ o’clock am news, read on 16th april, 2021. odunaike, dickson, ubani & adeyemi: the intersection between criminal law and the bible 10 | p a g e the intersection between criminal law and the bible abstract according to the bible, crime is defined as a violation of the public trust, a major legal transgression, a fundamental weakness or wickedness, and it is considered an offense against either (1) god, (2) man, or (3) both. the creator finds it irritating when the creature is hurt. certain sins, such as adultery, murder, bestiality, blasphemy, breach of covenant, bribery, stealing, deceit, false swearing, harlotry, idolatry, incest, and so on, were detailed in great detail in the sacred book. this study's goal is to look at these crimes from a biblical perspective, as well as how they are handled and how they are related to modern society. the qualitative research methodology with the doctrinal approach research design was used for this study. it offers a distinct, methodical approach to collecting data from primary and secondary sources. the bible served as the primary source, while periodicals and reputable articles served as supplementary sources. the results show that the bible is the source of all forbidden behavior, including what is known as crime. further research findings showed that while all crimes are sins, not all sins in modern society are crimes. while guilty people in today's society can avoid justice for a variety of reasons, such as careless prosecution, subpar investigation techniques, flaws in the legal system, etc., those in violation of god's law are unable to evade judgment since god's conscience is still the last arbiter. no hypocrite (offender) can evade the almighty god's justice and judgment. in conclusion, man suffered greatly from his inability to observe social and divine prohibitions after his fall in the garden of eden. he is a persistent transgressor because he is incapable of resisting the need to commit sin or other crimes. consequently, the suggested course of action is for fallen man to acknowledge his shortcomings and accept christ, whom god predestined for the intended salvation of humanity. after receiving christ and having his mind refreshed to live a decent life, he is unable to willfully break the law, whether it be set by society or god, because god's presence is always present to guide people away from all wrongdoing. when the people in the above-envisioned society follow the above principles, there won't be any crime and there won't be any empty jails. keywords: criminal law, bible, offence, sin, penalty 1. introduction crime and how it is dealt with have always been major issues for human communities. a complex interaction of moral, legal, and spiritual principles shapes how societies view, categorize, and react to transgressions of laws and social norms. this study's main goal is to investigate these complex dynamics by looking at how crime was perceived and justice was carried out in ancient israel from a biblical perspective. it also makes comparisons to contemporary parliamentary-based criminal justice systems. we must identify their fundamental distinctions in this work in order to further elucidate the distinction between sin and crime in modern society. crime is the breaking of social norms or laws, which may have legal repercussions enforced by the state. legal systems often define crime as an offense, which can include a broad range of behaviors from infractions to major felonies that are illegal and subject to punishment. on the other hand, sin is frequently a religious or moral term connected to deeds deemed improper or immoral by a specific belief system. it is viewed as a transgression of moral or heavenly norms with moral or spiritual repercussions. it is crucial to remember that while some behaviors may be seen as both crimes and sins, not all crimes are viewed as sins by all belief systems, and not all sins are necessarily crimes. adultery is considered one of the worst sins in the bible, but it is not illegal in nigeria's southern regions—only in the north. this is the case since the commission of the offense involves the soul, the spirit, and the body. many examples of crimes including adultery, murder, blasphemy, and other transgressions are found throughout the bible. these narratives shed light on the reasons behind the criminalization of these actions as well as the penalties associated with them. israel is a historical case in point since it was the first country to receive divine instructions containing criminal prohibitions and penalties. thus, it becomes imperative to look into whether contemporary societies and their historical counterparts have comparable approaches to handling criminal cases. god always intended for man to return to himself, beginning with the fall of humanity in the garden of eden, which gave rise to an innate desire to transgress social and divine laws, and ending with the advent of the second adam, or jesus christ. god made a promise to humanity through his prophet even in the old testament: he will remove the heart of stone and implant his law in people's hearts, giving them the heart of love. with the arrival of christ, god was finally able to do this and signaled the beginning of the process of redeeming humanity. recognizing one's shortcomings and accepting christ as the chosen savior is the first step toward a man free from crime. this can  by dorcas a. odunaike, llb, bl, llm, mphil, phd, professor of law, babcock school of law and security studies, nigeria, email: odunaiked@babcock.edu.ng, tel: 234-8028446155; *theodore dickson, bl, msc, phd, department of religious studies, babcock university, illishan-remo, ogun state, nigeria, email: successfultheo2000@gmail.com, tel: 234-8037901980 *monday onyekachi ubani, san, llb, llm, bl, phd (in view), legal practitioner, managing partner, ubani & co, email: ubangwa@gmail.com, tel: 234-8033019746; and *oluwadamilare adeyemi, phd (in view), llm (ibadan), bl, llb (oau), lecturer, faculty of law, adeleke university, ede, osun state, email: adeyemioluwadamilarelaw@gmail.com, tel: 09037298408, 08054932801 mailto:odunaiked@babcock.edu.ng mailto:successfultheo2000@gmail.com mailto:ubangwa@gmail.com mailto:adeyemioluwadamilarelaw@gmail.com african customary and religious law review (acarelar) 5 (2024) 11 | p a g e result in moral behavior and counsel against immorality. there's a chance that if society adopts these ideas, crime rates may decline. 2. the bible as a historical and ethical foundation for legal principles the bible has a deep and complex role as the ethical and historical basis for legal concepts. in terms of history, the bible offers insight into the judicial and legal procedures of earlier societies, which is helpful in establishing the background against which legal systems originated. it acts as a historical account of the methods used by prehistoric societies to address questions of punishment, justice, and government. the laws and stories included in the bible shed light on how ancient cultures approached moral and legal issues, as well as the evolution of legal standards and principles over time.1 in terms of ethics, the bible is often regarded as a source of moral instruction and standards that have shaped legal doctrines over time. many legal systems are based on core ethical precepts that have been formed by the teachings of the bible, especially the ten commandments found in the old testament. the principles of justice, equity, integrity, and regard for human life are fundamental to both biblical ethics and contemporary legal theory. the moral compass of legal practitioners and the guiding principles of the legal system are still shaped by the ethical framework that the bible provides.2 the bible's status as a court and a lawgiver further emphasizes how applicable legal principles are to it. the significance of impartiality and fairness in legal proceedings is emphasized by biblical tales of virtuous and righteous judges, such as the well-known ruling of king solomon.3 these stories highlight the enduring necessity for morally sound people to enforce the law and administer justice. the idea that legislators are essential in forming legal systems that are grounded in moral and ethical principles has its roots in the biblical narrative of individuals such as moses, the man who gave the ten commandments.4 furthermore, one further way that the bible relates to legal ideas is through its emphasis on social justice. the bible promotes treating underprivileged people fairly and compassionately, especially widows, orphans, and strangers. these social justice tenets have shaped legislation meant to safeguard marginalized groups and guarantee fair treatment in communities. human rights and social justice laws continue to be influenced by the biblical responsibility to care for the least fortunate and advance social equity. the bible's ethical precepts, emphasis on social justice, historical insights, and representation of just judges all contribute to its continuing significance as a source for legal concepts. beyond the pages of scripture, it has an impact on the moral and ethical foundations of legal systems as well as the guiding principles that govern the administration of justice in communities all over the world. 3. crime in contemporary legal system in hebrew tradition, there are no specific words for crime or criminal wrong. instead, the same words that are used to describe human offenses against others are also used for offenses against god, such as sin and transgressions.5 both religious and non-religious matters are intertwined, and many of the existing criminal laws are presented as direct pronouncements from god. this means that all crimes can be seen as offenses against god. however, it is important to note that not all sins are considered crimes. while god may punish all sins, the term ‘crime’ is only used to describe public offenses that were punished by the israelite society.6 a crime in the modern legal system can be described as a public wrong. it is an action or inaction that is prohibited by law and for which the state imposes a penalty on its own.7 this implies that an offense against society as a whole, in addition to a person, becomes a crime. the rights and obligations of people in their interactions with others are governed by a variety of laws in many jurisdictions. nonetheless, only offenses that cause harm to the public are classified as criminal and covered under the main body of criminal law. the legislative body of each jurisdiction decides whether an act qualifies as criminal or civil. acts that caused harm to the community were deemed ‘criminal’ in the past, and the people made this judgment. these days, it is the state legislatures' responsibility. there are numerous distinctions between crimes and civil wrongs, but the primary one is the label that the legislature assigns to them. put more simply, the legislature decides where to draw the extremely thin line between crimes and civil wrongs based on what the public is willing to accept.8. 1art lindsley moral law and the ten commandments https://tifwe.org/resource/moral-law-and-the-ten-commandments/ accessed on 03/11/2023. 2our judge, lawgiver, and king https://www.theologyofwork.org/the-high-calling/our-judge-lawgiver-and-king/ accessed 03/11/2023. 3 see 1kings 3: 16-28. 4 see exodus 20 1-26. 5 falk, zeʾev wilhelm, hebrew law in biblical times: an introduction. (2001) 2d ed. provo, utah, and winona lake, ind. 6https://www.encyclopedia.com/environment/encyclopedias-almanacs-transcripts-and-maps/israelite-law-criminal-law> accessed 08/11/2023 7 neil c. chamelin and andrew thomas, essentials of criminal law (2009) 10 ed. 3, pearson education, inc. 8 ibid https://tifwe.org/resource/moral-law-and-the-ten-commandments/ https://www.theologyofwork.org/the-high-calling/our-judge-lawgiver-and-king/ https://www.encyclopedia.com/environment/encyclopedias-almanacs-transcripts-and-maps/israelite-law-criminal-law odunaike, dickson, ubani & adeyemi: the intersection between criminal law and the bible 12 | p a g e criminal law is the aggregate term for the body of legislation that establishes criminal offenses, governs arrest, charges, and offender trials. it entails deciding on treatment plans and imposing penalties on convicted criminals. it serves as a mechanism in organized society to safeguard the survival of the collective and safeguard individual interests. it is recognized as the moral principles established by the family, the workplace, and religion, as well as the laws that support sanctions and the norms governing civil life that are upheld by law enforcement.9 criminal law has two primary functions. its primary goal is to control and direct human behavior. in the event that this goal is not met, the criminal code seeks to deal with disorderly conduct by punishing lawbreakers. there are three possible outcomes for punishment under the criminal justice system: fines, incarceration, or death. the main topic of discussion in our society's contentious social issues debates is the effectiveness, downsides, and effects of incarceration and the death penalty.10 4. criminal justice administration in the bible and the principle of natural justice adam and eve genesis 3 describes how human sin and wickedness, which were under eden's rule, caused paradise to be destroyed. despite having plenty of chances to eat and enjoy everything that god had provided in the garden, adam and eve committed a grave betrayal of trust. sadly, the couple was implicated by the fruit that the serpent tricked them into eating from the tree in the middle of the garden. because of their avarice and naive desire to resemble god, they defied their creator. after eating the forbidden fruit, adam and even were tried for multiple crimes of criminal breach of trust and stealing. the punishment for that offense was already outlined in genesis chapter 2 verse 17, where god said: ‘but of the tree of the knowledge of good and evil you shall not eat, for in the day that you eat of it, you shall die.’ despite not having legal representation, they received a fair trial that adhered to the audi alterem partem concept. following the impartial trial, the sentence was soon announced. the man is relegated to an accursed land where he must labor and sweat in order to survive, while the woman suffers during childbirth and for her generations. 11. ultimately, they were banished from eden's garden, and the death penalty—the harshest penalty for their transgression—was postponed until a later time. the biblical idea of the original offense/crime holds that all of mankind bears adam's guilt and that the only way to wash away the stain of adam's transgression is through the death and resurrection of jesus christ. the almighty god, who served as the accuser, the prosecutor, and the judge in the garden of eden judicial process, upheld the contemporary concept of due process. the charge of violating the principle that ‘nobody should be a judge in his case’ (nemo judex in causa sua) would have been widespread in today's culture. one could argue that since god is the ultimate judge of the supreme court and is impervious to error or bias, the rule cannot apply to him because of his infinite holiness, justice, and righteousness. these two foundations of justice were ingrained in israeli residents' daily interactions with one another when the country was founded with human institutions and a government. all rules and warnings placed a strong emphasis on treating citizens fairly and with integrity. adam and eve were supposed to suffer the repercussions of their deliberate wrongdoing when they were driven out of the garden of eden. this was the first sign of the world's decline and hence the decline of man. cain and abel ultimately, they were banished from eden's garden, and the death penalty—the harshest penalty for their transgression—was postponed until a later time. the biblical idea of the original offense/crime holds that all of mankind bears adam's guilt and that the only way to wash away the stain of adam's transgression is through the death and resurrection of jesus christ. the almighty god, who served as the accuser, the prosecutor, and the judge in the garden of eden judicial process, upheld the contemporary concept of due process. the charge of violating the principle that ‘nobody should be a judge in his case’ (nemo judex in causa sua) would have been widespread in today's culture. one could argue that since god is the ultimate judge of the supreme court and is impervious to error or bias, the rule cannot apply to him because of his infinite holiness, justice, and righteousness. these two foundations of justice were ingrained in israeli residents' daily interactions with one another when the country was founded with human institutions and a government. all rules and warnings placed a strong emphasis on treating citizens fairly and with integrity. adam and eve were supposed to suffer the repercussions of their deliberate wrongdoing when they were driven out of the garden of eden. this was the first sign of the world's decline and hence the decline of man. king solomon and the maternity test in the instance of the two ladies battling for custody of a child, king solomon's wisdom was evident. before determining which, the right mother was, solomon took the time to listen to each of them individually. the events surrounding this child stealing episode and the prudent decision made on the problem are recorded in 1 kings 3:16-28. 9 ese malemi, nigerian legal system (2012) 3, princeton publishing co. 10 neil c. chamelin and andrew thomas, essentials of criminal law (2009) 10 ed. 3, pearson education, inc. 11 britannica, t. editors of encyclopaedia (2023,). fall of man. encyclopedia britannica. https://www.britannica.com/ topic/fall-of-man african customary and religious law review (acarelar) 5 (2024) 13 | p a g e 5. categorization and penalty for crimes in the bible the bible provides a unique and ancient perspective on various crimes and their administration within specific jurisdictions. these crimes, as outlined in the scriptures, encompass a wide range of offenses that were viewed as transgressions against both god and society. the bible offered specific prohibitions and prescribed penalties for these transgressions, laying the foundation for an early form of legal and moral governance. here are some categorization and penalty for crimes/criminal wrongs in the bible murder, homicide and manslaughter the ten commandments contain one of the most well-known lists of prohibitions: ‘you shall not murder’12, which is a basic ban against taking another person's life. this commandment embodies a fundamental moral precept that forms the basis of legal systems in many nations. in the bible, unintentional manslaughter13 were protected by towns of refuge, but revenge was also a common aspect of the court system for murder. murder was typically punishable by death.14the majority of the time, the victim's family or supporters took revenge15in cases of unlawful retribution. sometimes, public indignation could lead to neighborhood actions against the murderer16. in general, biblical law views murder as a public, not a private, offense, which is why it is highly banned in leviticus 24:21 and numbers 35:31–34 (leviticus 24:18) to provide compensation in cases of murder. thoughts of the custom can be found in 1 kings 20:39 and 2 samuel 21:1-4. there is proof that restitution was provided for several additional crimes for which the death penalty was recommended. the biblical approach to murder vacillates between the domains of public and private law. the victim's friends and family members were still entitled to take legal action; society permitted them to kill the perpetrator or get financial settlements for the loss of a loved one. however, their decision was based on whether the victim's death was the result of murder, involuntary manslaughter, or negligent homicide; the victim's status as a free or unfree person also had to be taken into account. the relatives of the victim might legitimately kill the man who committed involuntary manslaughter, but the civil authorities could step in and provide the manslayer shelter, which is a kind of exile, in a ‘city of refuge’17 crimes against king, parents, and civil authorities according to biblical accounts, the king executed people for a variety of offenses, including treason18, cursing god or the king19; ‘treasonous’ prophecies against the state20, and witchcraft.21 the king's warriors carried out these executions; occasionally, large-scale practices like stoning were used in place of public trials before the actions. sometimes, ‘treasonous’ prophesy was considered a low-level offense and punished with detention, whippings, or banishment 22there was an expressed obligation to submit to civil and parental authority. according to dt. 17:8–13 and jos. 1:18, the death sentence was mandated for individuals who revolted against the ruler and the judges. similar laws apply to hitting a parent23, cursing a parent24, and disobeying orders from your parents.25 sexual offenses the death penalty was also prescribed for a variety of sexual offenses:  adultery, 26adultery is another crime outlined in the bible, is seen as a breach of the marital covenant, harming both the individuals involved and the social fabric of the community. the administration of justice for adultery included various forms of punishment, such as stoning, reflecting the seriousness with which it was viewed.  sexual relations of a man with his father's or son's wife 27or with his mother or daughter,28  rape of a married or even a betrothed woman29, 12 see exodus 20:13 13https://www.encyclopedia.com/environment/encyclopedias-almanacs-transcripts-and-maps/israelite-law-criminal-law accessed 08/11/2023 14 see gen. 9:6 and exo. 21:14. 15 see gen. 4:11–15, 2 sam. 14:4–11; see also 2 sam. 3:26–30, 1 kgs. 2:5–6 16 see exo. 21:14; dt. 19:11–12; judges. 20:12–13; ez. 16:38–41, 23:45–49 17 see exo. 21:12–13, num. 35:1–34, dt. 19:1–13. 18 see 1 samuel 22:13–19; 1 kgs. 1:50–53, 2:23–24 19 see 2 samuel 19:21–23; 1 kgs. 2:46, 21:9–16, see also exo. 22:28, levi 24:10–16), 20 see jer. 26:8–24, 2 chr. 24:19–21) 21 see1 samuel 28:9–10). 22 see 1 kgs. 22:13–27; jer. 20:2, 32:2–3; am. 7:9–13. 23 see ex. 21:15 24 see ex. 21:17, lev. 20:9 25 see dt. 21:18–21. 26 see gen. 20:3, 38:24; dt. 22:22–24) 27 see lv. 20:11–12. 28 see lv. 20:14, 29 see dt. 22:25–27 https://www.encyclopedia.com/environment/encyclopedias-almanacs-transcripts-and-maps/israelite-law-criminal-law odunaike, dickson, ubani & adeyemi: the intersection between criminal law and the bible 14 | p a g e  bestiality30,  male homosexuality31, and  prostitution engaged in by the daughter of a priest 32 idolatry the lengthy battle against idolatry and polytheism, which culminated at the collapse of the monarchy, is reflected in the biblical laws. as well as for encouraging idolatry in others, the death sentence is mandated for a number of idolatrous acts33.a city and its animals are sentenced to death in deuteronomy 13:12–18; all other assets and goods are regarded as ḥerem, or to be offered to god and destroyed by fire34.35 theft even more than the response to homicide, the responses to theft hover between public and private law. kidnapping and sale of a person was punished by death (ex. 21:16, dt. 24:7), but the theft of animals was settled by compensation (mt ex. 21:37, 22:3). there are, nevertheless, hints of capital punishment in the outbursts of king david in 2 samuel 12:5–6 (1 sm. 26:16) and of jacob in genesis 31:32. a thief caught stealing during the day was not to be killed, but a thief caught in the night could be slain without penalty (ex. 22:2). this same distinction, between daytime and nocturnal theft, also appears in the babylonian laws. the taking of property belonging to god (ḥerem) was punished by death (jos. 7:1, 7:18–26).36 multiple penalties in situations when there was a criminal penalty in addition to compensation being paid, one actually comes into contact with the blending of private and public interests. two forms of punishment were meted out to the man who falsely accused his betrothed wife of adultery: first, the man was beaten, and second, the woman's father was given financial recompense (duet. 22:13–19). it appears that agreements established in civil or private disputes could also include the addition of beating as a criminal penalty (duet. 25:1-3). from a biblical standpoint, in the biblical perspective, crimes were not only seen as offenses against individuals but also as transgressions against god. because of the significance that divine forgiveness and judgment played in dealing with these sins, the religious dimension brought a distinctive aspect to the administration of justice. since israel was the first people to receive god's instructions, it incorporated these biblical ideas into its moral and legal system. the legal system in ancient israel was intricately linked to faith and ethics because the administration of justice was intimately related to moral and religious precepts. while the biblical perspective on crimes and how they are handled in particular jurisdictions provide insightful historical context for the evolution of moral and legal norms, it is important to acknowledge that these long-standing customs have changed over time. the concepts and procedures of modern legal systems are influenced by a variety of sources, such as historical and religious writings. because of the bible's continuing influence on human civilization, scholars continue to research and argue its impact on the moral and legal aspects of contemporary civilizations categorization of offences against god and kings and punishments by them in the bible. in the bible, disobedience to divine commands, idolatry, and blasphemy are examples of spiritual offenses against god. depending on the circumstances and seriousness of the offense, punishments for these crimes ranged from natural calamities or plagues to banishment or death. death and banishment from the garden of eden were the punishments prescribed for adam and eve.37 in the case of cain, he was made a wanderer by the sentence of god. regarding the kings, offences could include rebellion, disrespect or disobedience. punishment for these offences could also range from exile to execution, depending on the gravity of the offence and the specific circumstances outlined in the scriptures. in the case of absalom, he rebelled against his father and he was killed.38 6. administration of criminal law and justice in nigeria the administration of criminal justice in nigeria and common law both prioritizes providing a fair, just, and prompt decision of guilt or innocence for those who are accused of committing crimes. following a trial, the court has the power to render a decision and sentence the found guilty party to a fine, jail time, or other types of punishment. as previously mentioned, the main goal of criminal law is to forbid and stop actions that seriously endanger people or the general public. karibi-white jsc asserts that the primary goal of criminal law is to punish antisocial behavior in order to suppress it. in many jurisdictions, victim compensation is not granted under 30 see ex. 22:19, lv. 20:15–16 31 see lv. 20:13 32 see lv. 21:9. 33 see lv. 20:2–5, dt. 17:2–7) (dt. 13:1–5, 13:6–11, 18:20–22, exodus 32:27 34 see ex. 22:20 35 ibid 36 ibid 37 nkjv, genesis 3 vs 17 – 23 38 nkjv, 2 samuel 15: 31-35 https://www.encyclopedia.com/social-sciences-and-law/law/crime-and-law-enforcement/capital-punishment african customary and religious law review (acarelar) 5 (2024) 15 | p a g e criminal law, in contrast to civil law. its primary goals are to identify, prosecute, and punish actions and inactions that fall under the criminal definition.39 however, criminal justice safeguards citizens' rights and guarantees a speedy, fair, and accurate decision of guilt or innocence. the objective is to develop a just and efficient penal system for individuals proven guilty. the primary objectives of the entire criminal justice system are to seek vengeance through state-mandated punishment, make amends, and deter. it is widely acknowledged that the goals of criminal law are to protect society and its members and to make those who commit crimes answerable for their deeds. furthermore, it's a common misconception that the purpose of punishment for crimes is to show the strength of the law and deter future offenders. essentially, the goal of the criminal justice system is to improve community safety by locating and dealing with potentially hazardous people or organizations, whether they are businesses or private citizens. an important feature of criminal proceedings is the burden of proof as criminal procedures, the prosecution must prove their case beyond a reasonable doubt, as contrast to civil trials where a claimant just needs to demonstrate their case based on a balance of probability. as a result, if a court finds a defendant guilty and condemns them, the defendant is then sentenced to an appropriate degree of punishment. 7. comparative analysis of criminal law in the bible with modern legal systems there are similarities and differences between the categories used by the bible to classify crimes and the categories used by modern legal systems. the bible is a fundamental religious source that classifies crimes mostly according to moral principles and divine commandments. it clearly forbids basic crimes like stealing and murder. modern legal systems, on the other hand, are usually secular and include a broader range of crimes, including those that are unique to the complexity of today's world. they categorize crimes and choose suitable penalties based on extensive legal laws.40 the classifications found in the bible are mostly religious in nature, while modern legal systems cover a wider range of social activities. these systems cover a wide range of topics outside the purview of religious literature by precisely categorizing offenses. the precision of contemporary legal codes allows for the classification of crimes that may not have been anticipated in biblical times, such as cybercrimes, environmental infractions, and intellectual property infringements, in order to accommodate the complexity of contemporary society.41 the penalties outlined in the bible for crimes frequently have a retributive bent and may not necessarily be consistent with the values of due process, individual rights, and rehabilitation that are prioritized in modern legal systems. modern legal systems, on the other hand, place a higher priority on procedural justice and fairness, guaranteeing that those who are accused of crimes have the right to a proper trial, legal counsel, and appropriate punishments. this difference highlights how legal systems have changed over time, moving from retributive justice to one that is more rights-based and rehabilitative. the flexibility of modern legal systems to societal and technical developments is another important distinction. legal systems must change to handle new types of crimes as society develops and new problems arise. for example, concerns about digital technology, environmental preservation, and intellectual property rights are crucial factors for contemporary legal classifications, even though the bible did not foresee these particular difficulties. however, there is still a basic moral and ethical correspondence between the legal systems of today and the biblical classifications of crimes like stealing, murder, and lying on one's witness. these universally acknowledged values show how important it is to protect people, things, and the truth. this area of agreement demonstrates how biblical ethics, regardless of one's religion or cultural background, continues to shape contemporary moral and legal philosophy. while the bible and modern legal systems categorize crimes in ways that are both similar to and different from one another, they represent different methods that are based on moral and religious principles as opposed to secular legal structures. modern legal systems are complex, secular, and flexible to the demands of the modern world; in contrast, the bible's classifications are simple and founded upon divine principles. notwithstanding these differences, biblical ethics continues to influence modern legal and moral philosophy because of the common ethical principles of protecting life, property, and truth.42 8. legal procedure and justice administration in the bible biblical narratives provide insights into legal procedures and principles that emphasize the importance of witnesses, testimony, and evidence. below are the key elements of legal procedure and justice from biblical perspectives. 39udosen jacob idem, ‘sentencing and the administration of criminal justice in nigeria’ <https://www.researchgate.net/ publication/347452115> accessed 09/11/2023 40encyclopedia of the bible: crimes and punishments crimes and punishments encyclopedia of the bible bible gateway accessed on 3/11/2023. 41richard burditt: the relevance of bible to our modern world. the relevance of the bible to our modern world | und... (understandingthegospel.org) accessed on 01/11/2023. 42 garnett, richard w., christianity and the criminal law (2020). routledge books 368. https://www.researchgate.net/%20publication/347452115 https://www.researchgate.net/%20publication/347452115 https://www.biblegateway.com/resources/encyclopedia-of-the-bible/crimes-punishments https://understandingthegospel.org/explore-the-gospel/the-bible/the-relevance-of-the-bible-to-our-modern-world/ https://understandingthegospel.org/explore-the-gospel/the-bible/the-relevance-of-the-bible-to-our-modern-world/ odunaike, dickson, ubani & adeyemi: the intersection between criminal law and the bible 16 | p a g e role of witnesses: the bible frequently underscores the significance of witnesses in legal matters. deuteronomy 19:1543 states, ‘one witness is not enough to convict anyone accused of any crime or offense they may have committed. a matter must be established by the testimony of two or three witnesses.44 this principle highlights the necessity of multiple witnesses to establish the truth and avoid false accusations. truthful testimony: truthful testimony is a fundamental principle in the bible. exodus 20:1645 admonishes, ‘you shall not give false testimony against your neighbor’.46 this commandment reflects the importance of honesty in legal proceedings, emphasizing the integrity of witnesses. role of judges: biblical narratives often depict judges who were responsible for resolving disputes and administering justice. figures like moses and king solomon served as judges, making decisions based on the law and testimony.47 these stories highlight the role of judges as impartial arbitrators. legal proceedings and fairness: in the book of ruth, the story of ruth and boaz provides an example of legal proceedings in biblical times. boaz follows a legal process to secure ruth's right to glean in his fields and marry her, demonstrating the importance of adhering to legal procedures.48 importance of oaths: oaths play a significant role in legal proceedings in the bible. witnesses often swore oaths to confirm their testimony. for example, in genesis 24:3-4,49 abraham's servant took an oath when entrusted with a task. oaths were considered solemn commitments and were expected to be upheld. role of elders: in various instances, the bible mentions the involvement of elders in legal matters. elders were respected figures who played a role in resolving disputes and making legal decisions. their presence added wisdom and experience to the process.50 evidence and the twoor three-witness rule: the bible's legal principles often required multiple witnesses to establish facts and ensure fairness. the twoor three-witness rule is reflected in various legal situations, particularly in cases of accusations or disputes (deuteronomy 19:15; matthew 18:16).51 biblical narratives illustrate legal procedures and principles that include the necessity of multiple witnesses, the importance of truthful testimony, the role of judges and elders, adherence to legal proceedings, the significance of oaths, and the application of the twoor three-witness rule. these principles emphasize the pursuit of justice, fairness, and honesty in legal matters, providing foundational guidance for both ancient and contemporary legal systems. 9. criminal law administration under the old testament the criminal laws found in the old testament, provide insight into the legal and moral principles of ancient israel. these laws are primarily documented in the torah, which includes the books of exodus, leviticus, numbers, and deuteronomy. 52some key aspects of the historical background of criminal law in old testament include: mosaic law: because the laws in the bible are credited to moses, who is said to have received them from god on mount sinai, they are frequently referred to as mosaic law. these laws address many different topics, such as morals, criminal acts, and religious customs. the ten commandments: the ten commandments, found in the book of exodus, are a foundational part of biblical law and include moral and ethical principles that have influenced legal systems around the world. some of these commandments, such as ‘thou shalt not kill’ and ‘thou shalt not steal,’ have direct relevance to contemporary criminal law. punishments: the bible outlines various punishments for criminal offenses. these punishments often included restitution, fines, corporal punishment, and, in some cases, the death penalty. the severity of the punishment depended on the offense. 43richard burditt: the relevance of bible to our modern world. the relevance of the bible to our modern world | und... (understandingthegospel.org) accessed on 01/11/2023. 44 ibid. 45 ibid. 46 ibid. 47 see exodus 18:13-26; 1 kings 3:16-28 48 see ruth 3:1-18. 49 ibid. 50see exodus 18:21; deuteronomy 21:18-21. 51 ibid. 52 garnett, richard w., christianity and the criminal law (2020). routledge books 368. https://understandingthegospel.org/explore-the-gospel/the-bible/the-relevance-of-the-bible-to-our-modern-world/ https://understandingthegospel.org/explore-the-gospel/the-bible/the-relevance-of-the-bible-to-our-modern-world/ african customary and religious law review (acarelar) 5 (2024) 17 | p a g e retribution and restoration: the biblical approach to criminal justice emphasized both retribution and restoration. offenders were required to make restitution to their victims, which aimed at restoring justice and making amends. community responsibility: in biblical times, the community played a significant role in upholding and enforcing the law. elders and leaders often administered justice at the city gates. evolving interpretations: over time, interpretations and applications of these laws evolved within judaism and christianity. different sects and denominations have varying perspectives on the relevance and application of these laws in contemporary society. it is important to note that the application of these biblical laws in modern legal systems varies widely, and many countries have secular legal systems that are not directly based on religious texts. the historical background of biblical criminal law provides valuable insights into the development of legal and moral principles in ancient times, but it should be understood in its historical and cultural context. 10. criminal law administration under the new testament the new testament's approach to criminal law mostly addresses issues of morality, faith, and spiritual direction. rather than providing particular criminal rules, the new testament teaches about personal behavior, forgiveness, and love. as long as they do not conflict with their beliefs, christians are urged to uphold the laws of the state in the new testament. the criminal law and judicial systems of the new testament were very different from those of the old testament. for instance, jesus changed the law in the adulterous woman's account by telling her to go and stop sinning, even though the law called for her to be stoned to death. exodus 21:24, ‘eye for eye, tooth for tooth, hand for hand, foot for foot,’ and matthew 5:43, ‘you have heard that it hath been said, thou shalt love thy neighbor, and hate thine enemy,’ are two more important examples of how the old and new testament approaches criminal justice. jesus addressed this principle in matthew 5:38, saying, ‘you have heard that it hath been said, an eye for an eye, and a tooth for a tooth:’ but he provided god's interpretation by saying, ‘mat 5:39 but i say unto you, that ye resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also.’ jesus said, ‘love your enemies, bless those who curse you, do good to those who hate you, and pray for those who spitefully use and persecute you.’ he also said, ‘if any man will sue thee at the law, and take away thy coat, let him have thy cloke also.’ jesus' reinvention of the criminal justice system under the old testament is significant because it marked the beginning of an era of love and forgiveness that was cemented after his death. the goal of the bible is to subjugate mankind to a divine state while maintaining that humanity functions according to the principles of divinity, which were made abundantly evident in the words of our lord jesus and his apostles found in the new testament writings. as a result, ‘love the lord your god, and love your neighbor as yourself’ is how our lord jesus christ summarizes the entire law and the prophets. this is a synopsis of the bible's criminal justice system, along with its goals and standards. the 2015 criminal justice act's guiding principles bear similarities to the biblical principles of criminal procedure and administration. the administration of criminal justice act, enacted by the nigerian government in 2015, provides a legal framework that outlines the procedures and rules for criminal justice in nigeria. the framework emphasizes the importance of fair trials, efficient case administration, and the preservation of the rights of all parties concerned. the constant emphasis on ideas like justice, fairness, mercy, restitution, and rehabilitation that offer moral and ethical direction is comparable to the bible's principles. it is important to note that justice and fairness are goals shared by the bible's principles and the administration of the criminal act. the application of justice administration in the holy bible supplied fundamental moral concepts and direction, even though the acja is a modern legal framework designed to enhance the criminal justice system in nigeria. a fair trial (section 36(4)), reparations (section 311), defense of the accused's rights (sections 35 and 36), and expeditious case resolution (section 396) are just a few of the provisions covered by the acja 2015. together, these sections seek to safeguard the rights of defendants, assure equitable treatment for them, facilitate the process of restitution, and speed up the conclusion of criminal cases in the nigerian judicial system. in contrast, there are real-world instances when the ideas articulated in modern legal systems, such as the acja, appear to have originated from the way the criminal justice system was implemented in the bible. fair trial principles are demonstrated in deuteronomy 19:15–21, where the significance of these principles is highlighted by the need for several witnesses to be proven true and by making sure that dishonest witnesses receive the same punishment they demanded for the accused. exodus 22:1–5 illustrates the concept of restitution, which calls for the return of whatever that was improperly taken or stolen. the parable of job claiming his innocence is relevant to this discussion of rights protection. it serves as an example of the idea of defending one's rights and remaining innocent in the face of difficulty. regarding the speedy resolution of issues, there have been situations where disagreements were settled without mentioning the law specifically. for instance, in acts 6:1–7, the early christians voiced concerns about the equitable distribution of resources. these concerns were promptly handled by designating deacons to supervise the distribution and avert additional strife. these illustrations highlight the biblical precepts of equity, justice, and swift dispute settlement. this comparison makes it extremely evident that the holy book is the primary source of the legal framework used by our modern legal system, highlighting the holy book's significant influence on it. odunaike, dickson, ubani & adeyemi: the intersection between criminal law and the bible 18 | p a g e 11. trial of jesus and paul in the bible jesus was taken into custody at the garden of gethsemane following judas iscariot's betrayal of him. at his trial before the jewish council, the sanhedrin, jesus was charged with blasphemy for asserting that he was the son of god. his trial was in front of his accusers, who had already found him guilty before he had a chance to present his case, hence it did not follow a fair trial procedure. but then they brought him before pontius pilate, the roman ruler, who, after a clumsy interrogation, declared him innocent but gave him a guilty verdict under duress and sent him to be executed. the just processes and procedures in the jesus trial were abandoned in order to appease the demonic expectations of the jewish nation's rulers, who were alarmed by jesus's teachings, which placed more emphasis on righteousness and holiness than on class and the elitist system. because they were under threat from christ's teachings, they felt guilty and felt that the only way to get peace of mind and keep their avaricious positions was to kill jesus. jesus' trial did not adhere in the slightest to the audi alterem partem (let the other party be heard) precept. despite the lack of conclusive evidence, he was found guilty and given the death penalty. the judge later washed his hands, indicating that he was facing criticism for rendering the incorrect decision and sentencing. paul’s right to an appeal was upheld, therefore there were some fairness features to his trial. similar to jesus, he was accused by jewish leaders. the roman authorities cleared him this time. a portion of his trial took place in caesarea before felix, festus, the roman governors, and king agrippa. he was made fun of, his defense was dismissed as fiction, and he was not given a fair trial while he was there. invoking his right to an appeal, paul—a roman citizen—asked to be tried before ceaser in rome. he was sent to rome to have his case considered by ceaser when his request was granted. although there are conflicting accounts of paul's trial in rome, it seems likely that paul was put to death during emperor nero's autocratic rule.it's important to remember that throughout their criminal trials, religious and civic authorities of the day leveled baseless and malicious accusations of blasphemy against both jesus and paul. paul received a better and more equitable treatment since certain of his rights, particularly the right of appeal, were upheld, whereas jesus's trials were conducted without following any fair method. but ultimately, the harsh trials that befell them both led to their deaths. this implies that there have always been injustices committed. it originated in the bible and is strengthened by the modern legal system. in modern culture, unfair criminal trials that result in miscarriages of justice persist despite attempts to alter the legislation to remedy some of these shortcomings in criminal procedures, as seen by the trials of jesus and paul. the author argues that a law devoid of any real sense of justice is meaningless. it is as useless to the pater as it is to the writer. 12. findings one of the conclusions is that it is impossible to determine if the ancient israelites intentionally distinguished between civil and criminal law. it is obvious that the distinctions between crimes committed in private and public were made differently than in contemporary western countries. the bible nevertheless regarded some crimes as private torts, including violence (ex. 21:18–19) and theft (ex. 21:37, 22:3), which are now considered criminal or public offenses. on the other hand, transgressions like adultery (lv. 20:10; dt. 22:20–24; ez. 16:38–41, 23:45– 49), witchcraft (ex. 22:18, lv. 20:27, 1 sm. 28:3), and sabbath violation (ex. 31:14–15, 35:2; nm. 15:32–36), which are either private torts or nonactionable in contemporary secular societies, were regarded as serious public offenses or crimes in the bible. the second and most significant finding is that, in contrast to the new testament's perspective on forgiveness and sin, which holds that any crime can be forgiven by god if the perpetrator repents of their sin and forsakes their crime (isaiah 1:18), modern society, which has criminal codes, holds the offender accountable for their actions. even while there are mitigating factors like plea bargains, which keep the perpetrator accountable but result in a shorter sentence, or clemency through the appointment of political officers or the sudden release of inmates from jail by chief judges, these are rarely employed unless there are extraordinary circumstances. thirdly, god promises that the rules of god are inscribed in our hearts as part of the new testament or covenant (jeremiah 31:33). this is preferable to codified laws, which the bible claims have deadly consequences. this suggests that when the people are led by the spirit of god and strictly obey the rules that forbid crime or offenses, the society will be free from criminal activity. 13. conclusion after the fall in the garden of eden, man's capacity to abide by social and religious norms was severely diminished. he is weak to resist the temptation to do wrong, thus he consistently disobeys these regulations. happily, christ arrived to right the evil that was committed in eden. consequently, it is advised that the fallen man confess his sins and accept christ, who was predestined by god to rescue humanity. through faith in christ and a new outlook on living morally, man will no longer purposefully break social or divine laws. god's spirit will lead him and keep him from doing anything wrong. society will become free of crime and eventually lead to empty prisons if it adheres to the aforementioned principles. to put it another way, if a person has a deep relationship with the word of god, then that person will live in constant fear of god and not be drawn to sin or other transgressions that could harm others or anger god. as a result, when the spirit of god leads the populace and enforces strict adherence to the rules that forbid crime or offenses, society will be free from crime. african customary and religious law review (acarelar) 5 (2024) 123 | p a g e the status of the african charter on democracy, elections and governance in nigeria: issues of domestication and implementation* abstract in order to mitigate the incidents of unconstitutional changes of government, manipulation of constitutional provisions to achieve arbitrary tenure elongation, electoral mal-practice and bad governance in africa, the african union (au) adopted the african charter on democracy, elections and governance (acdeg). the treaty defines a continental governance agenda for au member states by establishing a comprehensive normative framework around governance which member states are enjoined to implement in order to promote governance and accountability in africa. the acdeg’s normative framework defines a continental standard that can guide the implementation of the au governance agenda as encapsulated in the african union agenda 2063. however, the acdeg has not been domesticated as required under section 12 of the constitution of the federal republic of nigeria 1999. hence there are agitations for its domestication particularly by some members of the civil society organizations. the paper however, argues that though the treaty has not been domesticated in line with the provisions of the above section, the provisions of the charter have been substantially albeit informally domesticated in nigeria. against this background, the paper examines what the charter is all about and the extent of its domestication and implementation in nigeria. it is further argued, that though in principle, nigeria can be said to have made substantial progress in an effort to promote the objectives of the acdeg, nevertheless, there are existential structural and institutional challenges militating against their effective implementation of the provisions. the paper concludes that despite its challenges, the acdeg remains a progressive international legal instrument which all au member states, including nigeria should adopt, adapt and seriously implement in order to improve on their governance systems. keywords: democracy; domestication; elections; governance 1. introduction it cannot be overstressed, that democracy as practiced in most african countries is bedeviled with several shortcomings that deprive their citizens of good governance and development. as a result, most african states continue to be ranked poorly in international democracy indices as elections generally fall short of requisite standards of credibility. the factors which militate against good governance in africa include: lack of internal democracy; lack of independent electoral management bodies; corruption and various forms of electoral fraud and irregularities; unwillingness of the incumbents to hand-over power; to mention but a few. it is argued that the above problems are worsened by structural imbalances and institutional weaknesses which make it difficult to implement the electoral laws and guidelines intended to promote democracy, elections and good governance in africa. the above challenges continue to negatively impact on governance making africa’s developmental goals remain a tall dream. the african union (au) in its commitment to frontally address the challenges of democracy and good governance adopted the ‘african charter on democracy, elections and governance’1on 30th january, 2007 during the 8th ordinary session of the assembly of the african union held in addis ababa, ethiopia.2 the general intendment is to encourage african states to imbibe democratic principles, build and strengthen democratic institutions as well as inculcate a culture of change of power based on the holding of regular, free, fair and transparent elections.3in general, the objectives of the acdeg are to promote democratic governance and accountability by establishing an african governance standards, common or shared values and principles including supremacy of the constitution, the rule of law, separation of powers, independence of the judiciary, respect for human rights, the regular, transparent, free and fair elections, outlawry of unconstitutional changes of governments, fight against corruption and impunity, political pluralism, participation and other democratic values.4 thus, the acdeg is a continent-wide normative framework adopted for the consolidation of constitutionalism and democratic governance in order to realise the au aspiration, that is, a new democratic culture and collective responsibility towards improving the democratic experience for africans, the ‘africa we want’. *by osy ezechukwunyere nwebo, lld, phd, msc, llm, bl, llb hons, professor of public law and international constitutionalism, faculty of law, imo state university, owerri, nigeria, phone: +2348031111122, email: osy.nwebo@gmail.com 1 hereinafter referred to as the constitution. 1hereinafter referred to as acdeg or ‘the charter’. 2see the decision of the assembly of the african union eighth ordinary session’ <https://au.int.sw/decisions/assemblyafrican-union-eighth-ordinary-session> (accessed 19 november 2019). 3see the preamble of the acdeg. 4 see generally, articles 2-22, 27, 36-43 of the charter. mailto:sy.nwebo@gmail.com nwebo: the status of the african charter on democracy, elections and governance in nigeria: issues of domestication and implementation 124 | p a g e accordingly, it is expected that the domestication of the african charter on democracy, elections, and governance in nigeria would guarantee free, fair, and credible elections in the country and help to consolidate democracy and promote good governance. nigeria signed the charter on 2nd july, 2007 and ratified it on 1st december, 2011 signifying its willingness and commitment to comply with its provisions. however, the charter has not been domesticated as required by section 12 of the constitution of the federal republic of nigeria 1999 (as amended).5in reaction to the non-domestication of the charter after such long period, there have been calls by concerned nigerians for its domestication as required by the constitution. for instance, the action aid nigeria, trade union congress, tuc, yiaga africa and others have been agitating for the domestication in the charter. in this connection, the national stakeholders’ forum was held to provide insight into the state of the acdeg implementation in the country vis-a-vis its conformity to national legislation, democratic practice and most importantly to mobilize the necessary action towards full domestication and set in motion the necessary mechanism towards fulfilling its reporting obligations.6 unfortunately, the country is yet to domesticate the charter in line with the country’s constitutional requirements. it cannot be gainsaid, that it is necessary to domesticate the charter having signed and ratified same as required by the instrument. however, the paper argues that it cannot be denied that the principles of the charter find expression in various extant national laws including the constitution, the nigerian statutes especially the electoral act and adjectival laws and guidelines of the electoral bodies, though they were not made pursuant to the charter. in other words, many of the important provisions of the charter are contained in the corpus of nigerian laws including democratic rights and processes, the establishment of electoral body, multi-party systems and other democratic institutions. nevertheless, the domestication of the charter in nigeria remains crucial so that the citizens whose democratic rights are derogated from can vindicate their claims by placing reliance on the charter as an applicable law in nigeria and therefore enforceable. the domestication will in addition complement the provisions of the national laws where there are gaps thereby widening the scope of the existing legal protection. against the above background, the paper examines the general provisions of the charter vis a vis the nigerian extant laws on democracy, elections and governance with a view to determining to what extent they conform with the provisions of the charter. furthermore, the paper analyses the extent of the impact of adgeg in defining and influencing democratic, electoral and governance institutions, laws and practices in nigeria. the paper is divided into sections commencing with this introduction. section 2 deals with conceptual clarifications including democracy; elections; and governance. section 3 examines the background of the charter, status and its general provisions. section 4 examines the application of acdeg in nigeria and the extent of nigeria’s compliance with the acdeg normatic framework. the impact of the charter in nigeria is examined from the perspective of its enforceability; reflection of its standards in relevant domestic law and practices; and efficacy of its implementation mechanisms. section 5finally concludes the paper with remark on the positive impact of the charter and recommendations made on the need for au member states to ensure compliance with its provisions. 2. conceptual clarifications democracy democracy is a contested concept devoid of a universally accepted definition. accordingly, various definitions have been put forward, depending on the context or ideological disposition.7 lincoln provides a classic and the most popular definition of democracy as ‘a government of the people by the people and for the people’.8the will of the people in a democracy is expressed mainly in two forms, that is, directly or indirectly through their elected representatives. the focal point of democracy is the people in whom sovereignty lies and from whom the government ought to derive all its powers and authority to govern.9 domestication the concept of domestication can be explained in various contexts. in the context of this paper, domestication is explained in relation to international law, to describe the act of making an international legal instrument to have the force of law outside the jurisdiction where the instrument was originally issued or created.10 it is the process 5 hereinafter referred to as ‘the constitution’ or ‘cfrn’. 6this was emphasised at a ‘national stakeholders’ forum and policy documents dissemination’ under the ‘africa we want’ project organised by actionaid nigeria on thursday in abuja. see ‘actionaid, tuc, yiaga, others seek domestication of african charter to strengthen nigeria’s democracy’, https://www.vanguardngr.com/2020/09/actionaid-tuc-yiaga-others-seekdomestication-of-african-charter-to-strengthen-nigerias-democracy/ (accessed 20 july 2022). 7o.e. nwebo, ‘african union agenda 2063 and the imperative of democratic governance’ [2018] (11) (2), the law and development review 259. 8a. lincoln, in his famous speech the gettysburg address on 19 november 1863 <http://www.abrahamlincolnonline. org/lincoln/speeches/gettysburg.htm> accessed 9 july 2019. 9 o.e. nwebo, ‘african union agenda 2063 and the imperative of democratic governance’ (n 7 above). 10see https://www.yourdictionary.com/domestication. https://www.vanguardngr.com/2020/09/actionaid-tuc-yiaga-others-seek-domestication-of-african-charter-to-strengthen-nigerias-democracy/ https://www.vanguardngr.com/2020/09/actionaid-tuc-yiaga-others-seek-domestication-of-african-charter-to-strengthen-nigerias-democracy/ http://www.abrahamlincolnonline.org/lincoln/speeches/gettysburg.htm http://www.abrahamlincolnonline.org/lincoln/speeches/gettysburg.htm african customary and religious law review (acarelar) 5 (2024) 125 | p a g e of including the provision, standards and practices in a foreign instrument into the national jurisprudence of a country. this could be by way of executive degrees, ratification or accession of the international instruments. domestication of a treaty is the process of incorporating the provisions of a treaty into the domestic legal order in order to give it the force of law thereby making it enforceable within the legal order. thus, the whole essence of the domestication of an international instrument or treaty is to adopt and adapt the provisions to the domestic legal environment as part of the lex lata for the purpose of introducing reforms in the law for the benefit of the community. notably, most of the international principles governing treaties have been codified by international conventions of universal application, the most important of which is the vienna convention on the law of treaties (1969),11 the content of which can be described as comprehensive but not exhaustive.12however, the rules of customary international law will continue to govern questions not regulated by the provisions of the convention.13 furthermore, though the vienna convention on the law of treaties (1969) contains detailed provisions regulating treaty relationships between states as alluded to above, the theoretical and practical issues on the law of treaties cut across international and municipal laws. the point is that the fundamental principles governing the life of treaties from their formation, implementation and termination cut across international and municipal laws. the implication of this is that states’ practice on a number of the issues on treaty relations amongst states is governed by municipal constitutional laws especially with regard to those bordering on entry into force and implementation by national governments.14thus, while in some states, treaties automatically acquire the force of law upon ratification,15 in some others the constitution of the state may require that a specific act of incorporation of the treaty into the legal order must be carried out before it acquires the force of law.16 thus, in the case of nigeria for instance, the issue of treaty making and implementation is governed by section 12 of the constitution which provides thus: no treaty between the federal the federation and any other country shall have the force of law except to the extent to when any such treaty has been enacted into law by the national assembly. the national assembly may make laws for the federation or any part thereof with respect to maters not included in the exclusive legislative list for the purpose of implementing a treaty a bill for an act of the national assembly passed pursuant to the provisions of subsection 2 of this section shall not be presented to the president for assert, and shall not be enacted unless it is ratified by a majority of all the house of assembly in the federation. based on the above provision, it is submitted, that it is mandatory to comply with the prescribed processes to have a treaty (bilateral or multilateral) domesticated to have the force of law and ipso facto applicable in nigeria. accordingly, the supreme court had held in registered trustees of national association of community health practitioners of nigeria & ors v medical and health workers union of nigeria,17that the international labor organization convention, not having been domesticated in nigeria cannot therefore be applied in nigeria. thus, based on the combined effect of the above constitutional provisions and the case laws, it is submitted without equivocation that as earlier alluded to, nigeria is a dualist state and accordingly the acdeg as a treaty is not part of the applicable laws in nigeria until it is domesticated. this paper however, argues that domestication of some of the provisions of a treaty or any model law for that matter is possible without the wholesale incorporation of the international instrument. elections elections are virtually unavoidable as a major democratic process in any modern polity and indeed, a necessity in a representative democracy in modern times. generally, elections are a ‘form of procedure, recognised by the rules of an organisation, whereby all or some of the members of the organisation choose a smaller member of persons or one person to hold office or authority in the organisation’.18in relation to the governance of a state, elections according to gutto involve a cycle of procedural mechanisms through which people effect their choice 11see the convention. see also united nations, treaty series, vol. 1155, p. 331. 12https://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-9780199796953-0034.xml (accessed 29 february 2019). 13 see the preamble to the vienna convention on the law of treaties (1969). 14 this also depends on the attitude of the states concerned with regard to the application of international law domestically and the nature of the treaty itself as to whether it is a law making treaty or treaty contract. 15 this is the case in a monist state like south africa. 16 this is the position in a dualist state like nigeria which requires that for a treaty to be applicable in nigeria it must be enacted into law by the national assembly under section 12 of the constitution. 17(2008) 2nwlr (pt 1072) 575 at 623. 18 international encyclopedia of social science in p.k. inokoba and i. kumukor, ‘electoral crisis, governance and democratic consolidation in nigeria’ [2001] (27) (2) jss 139. https://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-9780199796953-0034.xml nwebo: the status of the african charter on democracy, elections and governance in nigeria: issues of domestication and implementation 126 | p a g e of political leadership.19 essentially, elections are the means through which people choose their leaders vesting them with legitimacy to govern them.20 elections must be free, fair and credible in order to birth or sustain a true democracy. elections are free when the full participation and choice of the people is upheld. fair elections import equality of participation and of vote, impartiality and non-discrimination.21 governance governance simply refers to ‘the process of decision making and the process by which decisions are implemented (or not implemented) by those in authority’.22 it refers to...the sum of the many ways individuals and institutions, public and private, manage their common affairs. it is a continuing process through which conflicting or diverse interests may be accommodated and cooperative action taken. it includes formal institutions and regimes empowered to enforce compliance, as well as informal arrangements that people and institutions either have agreed to or perceive to be in their interest.23 in relation to administration of a state, undp describes governance as: a system of values, policies and institutions by which a society manages its economic, political and social affairs through interactions within and among the state, civil society and private sector. it is the way a society organises itself to make and implement decisions achieving mutual understanding, agreement and action. it comprises mechanisms and processes adopted by citizens and groups to articulate their interests, to mediate their differences and exercise their legal rights and obligations. it is the rules, institutions and practices that sets limits and provide incentives for individuals, organisations and firms.24 essentially, governance involves the rules by which public affairs are conducted as well as controlling public affairs.25 governance depending on its quality may be adjudged good or bad, democratic or undemocratic. democratic governance can only spring from a legitimate government, that is, government does not act capriciously but manages the resources of a state transparently, accountably and responsively so as to realise developmental ends.26 it must be noted, that the concepts of democratic governance and good governance are used interchangeably as they espouse the same ideas and principles. these principles include accountability, control, responsiveness, equity, effectiveness and efficiency, transparency, public participation, economic efficiency, consensus orientation, strategic vision, rule of law and so on.27 3. african charter on democracy, elections and governance background the oau was transformed into the au with a clear intention of promoting peace, security and stability on the african continent as well as promoting democratic principles and institutions, popular participation and good governance.28 the charter drew inspiration from a number of prior initiatives of the au/oau.29in other words, the charter is a consolidation and activation of prior initiatives, and the first binding instrument adopted by the au that endeavoured to comprehensively address the factors and conditions necessary for the establishment and sustenance of democratic governance. it represents a deliberate and conscious effort geared towards fostering african development by promoting democratic governance as its enabler and necessary condition. following the various decisions taken by the assembly 19 s. gutto, ‘constitutionalism, elections and democracy in africa: theory and praxis’ <https://docgo.net/detaildoc.html?utm_source=prof-s-gutto-constitutionalism-elections-and-democracy-in-africa-theory-and-praxis> (accessed 11 september 2019). 20b.ighorejeh and b.a. adeyeye, ‘election and electoral fraud in nigeria’s democratic experience of the fourth republic: an exposition’ [2016](2)(1) njass 3. 21 g. goodman-gill, ‘free and fair elections’ in o. mtapuri, ‘holding free but not fair and fair but not free elections: be the judge’ in rukema j.r. (ed) elections and governance in africa (sub-saharan african university press 2017) 24-56. 22o.e. nwebo, op cit .(n 7 above) 23commission on global governance, ‘our global neighbourhood’ <http://www.gdrc.org/u-gov/globalneighbourhood/chap1.htm>(accessed 10 september 2019). 24undp in ‘state of governance: a framework for assessment’ <https://darpg.gov.in/sites/default/files/sogr_framework. pdf>(accessed 10 september, 2019). 25g. hyden and j. court, op cit. 26o.e. nwebo, critical constitutional issues in nigeria (rev edn, versatile publishers 2011)222. 27 w.j. ekundayo, ‘good governance theory and the quest for good governance in nigeria’ [2017] (7)(5) ijhss 154. 28 article 3 constitutive act of the african union, adopted 11 july, 2000 at the lome summit (togo), entered into force in 2001. 29for instance, the 1990 declaration on the political and socio-economic situation in africa and fundamental changes taking place in the world; the 1995 cairo agenda for action for relaunching africa’s economic and social development; the 1999 algiers decision on unconstitutional changes of government in africa; the 2000 lome declaration on the framework for an oau response to unconstitutional changes of government in africa; the 2002 oau/au declaration on the principles governing democratic elections in africa;<https://au.int/decisions/assembly>(accessed 27 june 2019). https://docgo.net/detail-doc.html?utm_source=prof-s-gutto-constitutionalism-elections-and-democracy-in-africa-theory-and-praxis https://docgo.net/detail-doc.html?utm_source=prof-s-gutto-constitutionalism-elections-and-democracy-in-africa-theory-and-praxis http://www.gdrc.org/u-gov/global-neighbourhood/chap1.htm http://www.gdrc.org/u-gov/global-neighbourhood/chap1.htm https://darpg.gov.in/sites/default/files/sogr_framework.%20pdf https://darpg.gov.in/sites/default/files/sogr_framework.%20pdf https://au.int/decisions/assembly african customary and religious law review (acarelar) 5 (2024) 127 | p a g e of head of states and government30 particularly, at the inaugural summit of the au in durban, south africa and subsequently the pretoria conference on elections, democracy and governance, a commission of experts was formed and called upon to draft the charter in 2004.31the charter was adopted by the assembly on 30th january, 2007 at the 8thordinary session of the au at addis ababa, ethiopia.32 the charter entered into force on 15 february 2012, that is, thirty days after the deposit of the 15th instrument of ratification.33 the charter consists of fifty-three articles divided into eleven chapters: i – definitions; ii – objectives; iii – principles; ivdemocracy, rule of law and human rights; v – democratic culture and peace; vi – democratic institutions; viidemocratic elections; viiisanctions in cases of unconstitutional changes of government; ixpolitical, economic and social governance; ximplementing provisions; and xi – final provisions. objectives article 2 of the charter identifies thirteen objectives of the charter which center on promoting democratic values and principles such as respect for human rights, rule of law, supremacy of the constitution, regular holding of free and fair elections, independence of the judiciary, citizen participation, political plurality, tolerance, transparency and, accountability. the charter also aims at strengthening governance institutions, promoting security and sustainable development, gender balance and equality, combating corruption, enhancing cooperation and generally promoting best practices in the management of elections. the objectives of the charter evidence the au’s robust stance to dealing to governance challenges in the continent, addressing underlying conditions necessary for democratic elections. principles the implementation of the charter is to be aligned with the principles enunciated in article 3. these principles underlie constitutionalism and good governance and they include: respect for human rights and democratic principles; supremacy of the constitution; rule of law; representative government; regular holding of transparent, free and fair elections; separation of powers; gender quality; citizens participation; transparency and fairness in management of public affairs; rejection of corruption, impunity and unconstitutional changes of government; and political pluralism. important general provisions chapter 4 of the charter consists of provisions which mandate state parties to commit themselves to: promote democracy, rule of law and human rights;34recognize popular participation through universal suffrage as a people’s right;35 ensure constitutional rule and constitutional transfer of power;36 ensure citizens’ enjoyment of all human rights and promote au human rights mechanisms;37 eliminate discrimination, guarantee the rights of minorities and vulnerable groups and respect diversity;38 supremacy of the constitution, ensure that the process of amendment or revision of their constitution rests on national consensus obtained if need be through referendum and equality before the law.39 these provisions emphasise the people as the focus of a democracy whose voice, will and rights should be protected by states. chapter 5 obligates states parties to develop legislative and policy framework as well as execute programmes to promote a culture of democracy and peace. in order to fulfill this commitment, states are to ensure transparency and accountability in public administration; strengthen political institutions; create conducive conditions for the existence and operation of civil society organisations; include civic education in its school curricula; and maintain political and social dialogue.40 chapter 6 on democratic institutions enjoins states to institutionalize civilian control over the security and armed forces; take internal measures as well as cooperate with one another to penalize any attempt at unconstitutional change of government.41democratic institutions should be established by state parties to function independently and accountably as well as be provided with adequate resources for effective performance.42 chapter 7 is on democratic elections and it commences with the re-affirmation of states’ commitment to regularly holding free and fair elections in accordance with au’s declaration on the principles governing democratic elections in africa. 43 this declaration was adopted at the 38th ordinary session of the assembly of organisation of african unity (oau) in durban, south africa. the principles of democratic elections declared in the chapter include: regularity, freeness and fairness, organized in line with democratic constitutions, separation of powers, independence of the judiciary, conducted 30 generally referred to as ‘the assembly’. 31p.j. glen, ‘institutionalizing democracy in africa: a comment on the african charter on democracy, elections and governance’ [2010] (5) ajls 149. 32african union, ‘assembly of the african union eighth ordinary session’ <https://au.int.sw/decisions/assembly-africanunion-eighth-ordinary-session> (accessed 19 november 2019). 33art 48 acdeg. 34 see art 4(1) of the acdeg. 35 ibid, art 4 (2). 36 ibid, art 5. 37 ibid, arts 6 and 7. 38 ibid, art8. 39 see art 10. 40 see arts 11, 12 and13. 41 see art 14. 42 see art 15. 43see art 17. https://au.int.sw/decisions/assembly-african-union-eighth-ordinary-session https://au.int.sw/decisions/assembly-african-union-eighth-ordinary-session nwebo: the status of the african charter on democracy, elections and governance in nigeria: issues of domestication and implementation 128 | p a g e by impartial, all-inclusive competent accountable electoral institutions staffed by well-trained personnel and equipped with adequate logistics.44 specific standards set by the charter which states should adhere to include: to establish and strengthen independent and impartial national electoral bodies responsible for the management of elections; to establish and strengthen national mechanism that redress election-related disputes in a timely manner; to ensure fair and equitable access by contesting parties and candidates to state controlled media during elections; to ensure there is a binding code of conduct governing political stakeholders, government and other political actors which should include a commitment to accept the results of the election or challenge them through exclusively legal channels; to create a conducive environment for independent and impartial national monitoring or observation mechanisms.45 the charter also highlights the role the au should play in ensuring regular holding of free and fair elections in state parties. these include: providing advisory services or assistance for strengthening and developing electoral institutions and processes through its democracy and electoral assistance unit and its democratic and electoral assistance fund;46 sending special advisory missions to a state party to provide assistance for strengthening its electoral institutions and processes;47 sending election observation missions;48 and sending exploratory missions prior to scheduled elections in states parties to assess if necessary conditions for free and fair elections exist.49 chapter 8 commences by identifying five illegal means of accessing or maintaining power as constituting unconstitutional changes of government. these include: putsch or coup d’etat against a democratically elected government; intervention by mercenaries to replace a democratically elected government; replacement of a democratically elected government by armed dissidents or rebels; refusal by an incumbent to relinquish power to the winning party/candidate after free, fair and regular elections; or amendment/revision of the constitution or other law which infringe principles of democratic change of government. this list is not exhaustive but highlights familiar scenarios that play out within the african continent beyond the traditional understanding of a coup d’etat to include any attempt to override the will of the people as expressed in free and fair election or limit their ability to do so. the peace and security council is mandated to maintain constitutional order in line with relevant provisions in its protocol.50 article 25 prescribes that when the peace and security council observes that there has been an unconstitutional change of government in a state party, and that diplomatic initiatives have failed, it shall suspend the said state party from the exercise of its right to participate in the activities of the union in accordance with the provisions of articles 30 of the au constitutive act and 7(g) of the protocol. the au shall however maintain diplomatic contacts and take any initiatives to restore democracy in that state party. further sanctions include not allowing perpetrators of unconstitutional change of government to participate in elections held to restore the democratic order or to hold any position of responsibility in political institutions of their state; trial of such perpetrators before the competent court of the au; imposing sanctions on any member state that is proved to have instigated or supported unconstitutional change of government in another state in conformity with article 23 of the constitutive act including punitive economic measures or other sanctions. state parties are enjoined not to harbour or give sanctuary to perpetrators of unconstitutional changes of government but rather bring them to justice or take necessary steps to give effect to their extradition. chapter 9 contains provisions by which state parties commit themselves to advancing political, economic and social governance including strengthening the capacity of parliaments and political parties, reform of legal and justice systems promoting freedom of the press, promoting strong government and private sector partnerships; recognizing and encouraging the participation of women and youths. other essential social, political and economic conditions necessary for democratic governance to thrive are also addressed in this charter.51 implementation mechanisms mechanisms for implementation of the commitments in the acdeg are envisaged at the state, continental and regional levels. states are mandated to implement the objectives, apply the principles and respect the commitments of the acdeg through various means. mainly, states are to initiate appropriate legislative, executive and administrative 44au declaration on the principles governing democratic elections in africa, ahg/dec.1 (xxxviii), 2002 <https://www.ohchr.org/en/issues/ruleoflaw/compilation.democracy/pages/ahg.aspx&hl=en-ng>(accessed 31 october 2019). 45art 22 acdeg. 46art 18(1). 47art 18(2). 48art19. 49 art 20. 50 see art 24 of the acdeg. 51see ibid, arts 28-42. https://www.ohchr.org/en/issues/ruleoflaw/compilation.democracy/pages/ahg.aspx&hl=en-ng african customary and religious law review (acarelar) 5 (2024) 129 | p a g e actions to bring their national laws and regulations into conformity with the acdeg.52 it is also the responsibility of states to take all necessary measures to ensure dissemination of the acdeg and all necessary legislation for the implementation of its fundamental objectives.53 states are to promote political will as well as incorporate the commitments and principles of the acdeg in their national policies and strategies.54 states are also expected to submit report every two years to the au commission on relevant measures taken towards giving effect to the acdeg.55 each state is obliged to inform the au commission of scheduled elections and invite it to send an eom as well as ensure essential conditions for the eom to operate within the country.56 at the continental level, the au commission is to act as the central coordinating structure for the implementation of acdeg.57 the commission is to develop benchmarks for implementation and evaluation of states’ compliance to acdeg; promote the creation of favourable conditions for democratic governance in the continent by facilitating harmonization of laws and policies. the au commission ought to ensure the democracy and electoral assistance unit and the democracy and electoral assistance fund provide the needed assistance and resources to states in support of electoral processes. finally, the au commission is to ensure effect is given to african union’s decisions in regard to unconstitutional change of government.58 at the regional level, implementation of the acdeg is envisaged through a framework for cooperation with regional economic communities (recs) established by the au commission. through this framework, recs are to encourage ratification of the acdeg by member states as well as designate focal points for coordination, evaluation and monitoring implementation.59 the assembly and the peace and security council shall determine measures to be imposed on any state party that violates the charter in line with the au constitutive act and the protocol.60 article 52 of the charter provides that nothing in the charter shall affect more favourable provisions relating to democracy, elections and governance contained in the national legislation of state parties or in any other regional, continental or international conventions or agreements applicable in these state parties. 4. the status of african charter on democracy, elections and governance in nigeria following the adoption of the acdeg by the au, nigeria signed it on 2nd july 2007 and ratified it on 1st december, 2011.accordingly, the country deposited its instruments of ratification with the au on 9th january 2012.61 nigeria’s ratification of the acdeg ordinarily is an indication of its willingness to fulfil the obligations therein. the point is that the ratification of the charter ought to have been followed with its domestication as required by section 12 of the constitution. in other words, the domestication of an international treaty in nigeria is by its enactment into law by the national assembly in conformity with the provisions of section 12 of the constitution.62 as earlier submitted in this paper, the above requirement is mandatory and since the provisions of the constitution are sacrosanct and supreme, this requirement cannot be subverted.63however, till date, there is no record of any act of the national assembly domesticating the charter in nigeria, thereby rendering the charter per se unenforceable in nigeria. on the other hand, the constitution has made various provisions on democratic principles and established various democratic institutions aimed at enforcing electoral democracy in nigeria as envisaged by the acdeg framework, though not necessarily pursuant to the charter. these institutions include the independent national electoral commission, the courts with jurisdiction to adjudicate over electoral disputes. thus, there are compendious provisions under the nigerian legal system which reasonably meet the standard established under the acdeg. it is therefore submitted, that what is important is not so much of the domestication of the charter as a holistic document but to ensure that there are provisions in the nigerian legal system which guide the democratic processes or enable the introduction of legal and institutional reforms that can promote democracy, elections and governance. in other words, that the standards set by the charter are reflected in the relevant national laws, policies and administrative procedures that can promote democratic governance in the country. this is the contemplation of the charter in article 44 (1) (a) & (d) and several other provisions therein.64 52 see art 44(1)(a) of the acdeg. 53 see art 44(1) (b). 54 see art 44 (1) (c) and (d). 55see art 49 (1). 56see art19. 57see art 45. 58 see art 44 (2). 59 see art 44 (2) b. 60 see art 47. 61african union; ‘list of countries which have signed african charter on democracy, elections and governance ’https (accessed 10 december, 2021). 62 see the provision as referred to in section 2.1 above. 63see section 1of the constitution; abacha v fawehinmi (2000) 6 nwlr (pt. 660) 228; balonwu v gov. ananmbra state (2009) 18 nwlr (pt. 1172)13. 64 arts 8(2), 5, 7, 8(2), 11, 30 & 32(4) acdeg. nwebo: the status of the african charter on democracy, elections and governance in nigeria: issues of domestication and implementation 130 | p a g e the above submission is buttressed by the wide range of provisions covered in the charter extending to political, social and legal dimensions of governance. the pragmatic approach is the need to ensure that state parties bring their domestic laws, policies and actions in these diverse fields to conform to the standard established for the au member states under the charter. furthermore, the charter ought to serve as a standard for the assessment of the democratic content of local legislations by: identifying the lacuna in the laws and filling same; improving on the standards in local laws to conform to the standards envisaged in the charter; but leaving more favourable provisions in local laws untouched.65 based on the foregoing, it is submitted, that the nigerian laws on democracy and elections and governance are substantially consistent with the standard established by adgeg and in some cases even ahead. furthermore, a close examination of the objectives of the charter in article 2 reveals that the provisions thereof are reflected in chapter 2 of the constitution on the fundamental objectives and directive principles of state policy to which all persons and authorities performing legislative, executive or judicial powers in nigeria ought to conform to, observe and apply.66some of the relevant provisions include that: nigeria should be a state founded on principles of democracy and social justice with sovereignty belonging to the people;67welfare and security of people is a primary purpose of government;68ensuring popular participation;69abolishing corrupt practices and abuse of power;70prohibiting discrimination;71 ensuring equality by reflecting federal character in public institutions;72with an independent and impartial judiciary;73and upholding freedom of press and accountability of government.74 thus, on a realistic juxtaposition of the principles of the charter as highlighted in chapter 3 against the various domestic legislations in nigeria, it is evident that these principles are reflected in the relevant extant laws in nigeria. for instance, human rights are recognized in the nigerian constitution,75the african charter on human and peoples’ rights (ratification and domestication) act 1985 and several other human rights legislations. mechanisms for enforcement of these rights also exist.76 the constitution of the federal republic of nigeria, the supremacy of which is asserted in section 1 thereof, outlaws the ascension to governmental position otherwise than in the manner provided for in the constitution. it went further to prescribe qualifications of political office holders and the means of access to power via regular elections conducted in compliance with the provisions of the constitution and the electoral act 2022. the legislative arm of government is representative of the various parts of the nation.77governmental powers are shared between the federal, state and local governments as well as separated between the three arms of government with a system of checks and balances in place to stem arbitrariness.78 non-discrimination on grounds of sex is guaranteed in the constitution and other legislations so as to foster gender balance in governance.79 the freedom of information which is guaranteed in the constitution and the freedom of information act 2011 is geared towards promoting openness, accountability and transparency in governance.80there are several local legislations aimed at preventing, combating and punishing corruption in nigeria.81a multiparty system is recognized in nigeria with laws governing their recognition, functioning and finance of political parties so as to ensure political pluralism.82 specifically, the standards relating to democratic elections in chapter 7 of the charter are mostly reflected in national legislations in wider ambits than even required by the charter. nigeria’s main electoral management body (emb) the independent national electoral commission (inec) is established to independently organize, supervise and undertake elections at the state and federal levels. over the years, some amendments have been made to the law to enhance inec’s capacity to effectively perform its assigned duties.83 regarding the obligation of state parties to establish and strengthen national mechanism to timeously address election related disputes, electoral tribunals are established in nigeria to 65 art 52 acdeg. 66 chapter ii cfrn 1999; see section 13. 67 s 14(1) & (2)(a) cfrn 1999 (as amended). 68 14(2) (b). 6914(2) (c). 70 15(5). 7115(2). 72see ibid, section14 (3) & (4); see also the equality of rights, obligations and opportunities as provided for in sections 17(1) & (2). 73 see ibid, section17 (2) (e). 74 see ibid, section 22. 75see chapters 2 & 4 of the constitution. 76see the fundamental rights (enforcement procedure) rules 2009. 77 see sections 48, 49&91 of the constitution. 78ibid, sections 4, 5 & 6. 79ibid, section 42. 80ibid, section 39. 81economic and financial crimes commission (establishment) act 2004; independent corrupt practices and other related offences act 2006; money laundering (prohibition) (amendment) act 2012 et cetera. 82 see sections 221-219 of the constitution; see also sections 75-97 of the electoral act 2022. 83see the electoral (amendment) act 2010; electoral (amendment) (no.2) act 2011; electoral (amendment) act 2015 and now the electoral act 2022 which repeals the electoral act 2010. african customary and religious law review (acarelar) 5 (2024) 131 | p a g e exclusively handle post-electoral disputes. relevant laws have also been amended to allow for timely disposal of both pre-electoral and post-electoral disputes.84furthermore, provisions exist to ensure equal access to state-controlled media during elections85 as well as the code of conduct prepared by inec which political parties commit to abide by.86 other standards spread across the charter, which are reflected in national legislations include universal adult suffrage with efforts made to include marginalized and vulnerable groups.87 civic education is included as part of the school curriculum in nigeria via its universal basic education policy. the armed forces and other security agencies are under the direction and control of the president who is the commander-in-chief.88 funds accruing to the national assembly and judiciary and inec are made to payable to them directly so as to strengthen their independence from the executive arm of government.89 it is instructive to also note, that article 10(2) of the charter provides that ‘state parties shall ensure that the process of amendment or revision of their constitution reposes on national consensus, obtained if need be, through referendum.’ the above provision is not contained in the constitution of the federal republic of nigeria hence, there are calls for restructuring via amendment of or the making of a new constitution, but this has been stalled by the rigorous provision on constitutional amendment.90 as submitted earlier, the provisions on democracy, elections and governance under the nigerian laws are not necessarily influenced by the charter, as some of these provisions predate the charter. however, the recent amendments made to these legislations may have been influenced by the global, regional and domestic pressure for more democratic electoral laws and practices. thus, it can be argued that the adoption of the charter by the au as part of the regional pressure towards promoting electoral democracy in africa has obvious impact in nigeria. the au election observation mission (eom) to nigeria is another medium through which the charter influences elections in nigeria. the african union’s eom mandate is derived basically from the charter, the 2002 oau/au declaration on principles governing elections in africa, the 2002 au guidelines on election observation and monitoring missions and the african charter on human and peoples rights (achpr). the aim of the african union through its eom is to promote the conduct of free and fair elections in nigeria as this is deemed critical to the realization of good governance, democracy and respect of human rights, justice and rule of law on the continent.91 this is in line with au’s aspirations outline in agenda 2063 –no.3. the eom’s report contains observations and recommendations which if considered and embraced can improve the quality of elections in nigeria. the au responded to nigeria’s invitation to observe its 2019 elections. the au eom to the 2019 elections in nigeria comprised a 50-member team led by dasalegn boshe (a former ethiopian prime minister) which issued its preliminary statement on 25/2/2019 and final report on in june 2019.92 the charter however fails to state what measures may be taken if violations of its principles are revealed in its eom report. on the role of the african union itself in promoting the charter in nigeria, the african union commission serves as the central coordinating structure for the implementation of the charter. the commission works in this regard primarily through the african governance architecture (aga) platform under its department of political affairs, peace and security (paps). the aga provides a forum for working with recs as envisaged by the charter. paps are currently working to integrate the charter into school curriculum to build awareness about democratic principles at an early age.93 the au commission is also currently working on a draft roadmap for the implementation of acdeg strategy and is set for implementation of the pilot project in select countries.94 generally, the impact of the acdeg is limited to the extent that the charter envisages intervention by au in its member states only in cases of unconstitutional change of government. thus, where unfair or unfree elections still result in a democratic change of government, the au cannot intervene, at best it may release statements or in rare instances send an envoy to deal with a post-election crisis. thus, other than where there is an unconstitutional change of government, violence/war and also perhaps a violation of human rights during the electoral cycle (whereby its human rights machinery can be invoked), the ability of the au to directly enforce the charter is limited. since the adoption of the 84 see section 285 of the constitution. 85see the nigeria media code of election coverage. 86see the revised code of conduct for political parties in nigeria 2018. 87 see sections 77 & 117 of the constitution; see also section 24(1) ea 2022. 88 see section 130 of the constitution. 89 s 80(3) cfrn 1999 (as amended). 90 section 9 cfrn 1999 (as amended). 91african union, ‘aspiration no.3 agenda 2063’<https://au.int.en/pressreleases/20190215/head-african-union-observationmission-nigeria’s-elections-conclude>(accessed 7 november 2019). 92african union, ‘preliminary statement: au eom to frn 23 february 2019 presidential and national assembly elections’ <https://au.int/en/pressreleases/20190225/preliminary-statement-african-union-election-observation-mission-aueom>; ‘aueom election report: republic of nigeria’< https://au.int/en/documents/20190617/aueom-election-report-republicnigeria> (accessed 11 december 2021). 93intl idea, emerging trends and challenges of electoral democracy in africa, international idea policy dialogue 25-27 may 2016, abuja, nigeria (intl idea 2016). 94african union, ‘african union to adopt a strategy on mainstreaming the acdeg and develop pedagogic tools on the rule of law’ <https://au.int/en/pressreleases/20211202/african-union-adopt-strategy-mainstreaming-acdeg-and-developpedagogic-tools> (accessed 11 december, 2021). https://au.int.en/pressreleases/20190215/head-african-union-observation-mission-nigeria's-elections-conclude%3e https://au.int.en/pressreleases/20190215/head-african-union-observation-mission-nigeria's-elections-conclude%3e nwebo: the status of the african charter on democracy, elections and governance in nigeria: issues of domestication and implementation 132 | p a g e charter, nigeria has had a several constitutional changes of government thereby not warranting intervention by au in the manner envisaged by the charter even though these elections have fallen short of prescribed standards. furthermore, it must be noted that the general intendment of the charter which inter alia includes the entrenchment of the culture of change of power via transparent, regular, free and fair elections is in principle being promoted in nigeria. however, this is not to deny the fact that lapses still exist in the nigerian legal and institutional framework that derogate from the general expectation of the charter. for instance, the laws regulating political parties in nigeria are inadequate to ensure fairness and internal democracy resulting in several pre-election disputes arising out of party primaries. in this regard, the independence and impartiality of the electoral bodies (inec and siec), the judiciary, and other democratic institutions need to be institutionalized to control manipulation of the processes by politicians. at this juncture, it must be reiterated that the execution of laws and policies require political will and collective effort that cannot be produced by mere legislation. the charter recognizes that political will is a necessary condition for the attainment of the goals of the charter and obliges state parties to promote same.95the popularity of the acdeg in nigeria seems to have been championed more by civil society organisations through workshops and seminars organised for the enlightenment of different stakeholders but much more needs to be done to improve the awareness of acdeg to all nigerians as state parties are obliged to ensure the wider dissemination of the charter.96 5. conclusion and recommendations the paper has demonstrated that the charter adopted a comprehensive and unique approach to the peculiar challenges of african states with regard to the promotion and consolidation of democracy and good governance. it undoubtedly advances the interdependency of democracy, human rights and development. the charter continues to serve as a useful template and reference point for universal standards and conditions for the promotion and consolidation of democracy, elections and governance which african states should generally strive towards. therefore, efforts should be intensified by the au member states and au itself to ensure that the acdeg is ratified, domesticated and implemented in order to promote and consolidate democratic values and political participation amongst the citizens especially the political class. this will go further to act as an elixir of the challenges of fragility including conflicts, instability, corruption, impunity of the ruling elites, to mention but a few, which have been stunting development and progress in african countries. with particular reference to nigeria, it is submitted, that notwithstanding the non-domestication of the charter, this paper argues that for the most parts, the provisions of the charter and the established standards are more or less, parts of the whole body of the nigerian laws in relation to democracy, elections and governance. in support of this argument, reference could be made to the various constitutional provisions aimed at promoting electoral democracy, the electoral act 2022 and other electoral guidelines established by the nigerian electoral body.97 thus, although nigeria has not domesticated the charter as required by the constitution yet, to all intents and purposes nigeria is not lagging behind other au member states in terms of the domestication of the principles and values established in the charter, despite the existential challenges of implementation. these challenges are associated with structural imbalance, institutional weaknesses and the lack of the political will on the part of the political leaders to effectively implement the laws. in light of the foregoing, the following recommendations are made as measures that can be taken to improve on the level of domestication and implementation of acdeg in au member states:  constant engagement with member states and their political leaders is necessary to encourage them to develop the necessary political will and commitment to carry out their national and international obligations to promote the realization of the objectives of the charter.  more efforts towards wider popularisation of the benefits derivable by the citizens from the implementation of the charter in member states. to this end, the role of the au governance institutions,98the various african economic communities, civil society organisations and so on, should be exploited by continuously engaging governments and exerting pressure on them to improve and strengthen their legal and national policy frameworks to align with the provisions and principles of the charter. with particular reference to nigeria, the national assembly should without further delay take necessary steps to ensure that the charter is domesticated in line with section 12 of the constitution. this will additionally serve to reinforce the relevant provisions under the constitution and other statutory provisions which citizens and the civil society can refer to, especially where gaps exist, in order to reinforce their demand for improved electoral democracy and good governance with greater impetus. 95 art 44(1) (c) acdeg. 96for instance action aid’s training for journalists, ‘mobilising civil society support for the implementation of africa governance architecture and acdeg’; center for democracy and development, ‘charter on democracy and development will help nigeria’<https://www.cddwestafrica.org/implementation-of-the-charter-was-imperative-for-nigeria/> accessed 3 november, 2019; transition monitoring group ndi, ‘promoting the african charter on democracy, elections and governance in west africa’ <https://www.ndi.org/waeon-symposium> accessed 4 november, 2019; art 44 (1)(d) acdeg. 97it is noteworthy that the independent national electoral commission (inec) is empowered to implement the constitutional provisions, as well as the provisions of the electoral act in the course of its functions as the electoral umpire. 98 the au governance institutions include the pan african parliament, african pear review, nepad https://www.cddwestafrica.org/implementation-of-the-charter-was-imperative-for-nigeria/ aduma & oparaji: a legal evaluation of extra-judicial killings in nigeria between 2019 and 2021 95 a legal evaluation of extra-judicial killings in nigeria between 2019 and 2021* abstract the right to life is an inalienable right. it is one of the major components of the fundamental human rights enshrined in the 1999 constitution of nigeria (as amended). these rights are broken consists of the right to life, the right to assemble, the right to education and others. beyond the constitutional provision of the rights, the courts have always ensured that the right to life is duly protected from being violated. in most cases however, citizens have shown ignorance of their rights and their constitutional provision. therefore, law enforcement agents have always taken advantage of the citizens’ ignorance and killed people unlawfully for minor offences without being tried. this study therefore evaluated extra-judicial killings in nigeria between 2019 and 2021, factors for responsible for such illegal killings, the various patterns of the killings and showed exceptional circumstances when the rights to life can be breached. the study adopted the doctrinal research method and the approach is investigative and comparative. this involved the consideration of data from statutes, case laws, and journal articles including the review of works done by other authors in the subject area. in the course of the study, it was observed that ignorance and poverty have affected the citizens’ access to justice after each extrajudicial killing. it was also seen that poor conditions of service and inadequate investigative infrastructure are some of the reasons for the breach of the right to life resulting in extra-judicial killing in nigeria. it was then recommended that enhanced working conditions, and adequate investigative infrastructure be provided for security agents especially the police to mitigate extra-judicial killing in nigeria. keywords: legal, framework, extra-judicial killing, nigeria 1. introduction human rights are inalienable. they are enshrined in the constitution with provisions for their protection and sanctions for their violation. they are many and one of the human rights as contained in the 1999 constitution of nigeria (as amended) is the right to life (akin, 2007). unfortunately, the right to life appears to be one of the most breached in nigeria through extra-judicial killing. extra-judicial killing is also known as extra-legal or unlawful killing. it is a violation of the rights to life and it can be defined as any form of killing that is not sanctioned by law. extra-judicial killing is carried out by mostly the police, with a couple of unlawful killings by non-state actors like bandits and other nefarious groups.1 extra-judicial killing can be regarded as the unlawful deprivation of a person’s life without regards to judicial or legal processes. it could also be regarded as the deliberate disregard of the right to life as enshrined in the 1999 constitution of nigeria (as amended) and other national and international legal instruments. extra-judicial or unlawful killing is by all standards illegal and unconstitutional as it is an infringement on the fundamental human rights of individuals affected. it is an aberration of the law as it the outright termination of the human life of a person against his wish and against the constitutional provision for the protection of the rights to life and human dignity.2 it consists of human rights violations like torture, and brutality resulting in unlawful killings of varying degrees or proportions. extra judicial killing is an unethical crime by governmental agencies in contradiction of legal provisions for the protection of humanity. it is essentially the killing of human beings that could be considered null and void and ultra vires as it is carried out with no regard for constitutional process or judicial processes or approval.3 a legal review of extrajudicial killing in nigeria entails the examination of unlawful killings in nigeria against the background of the various laws or legal instruments that provide for the rights to life of the citizens as enshrined in these laws. in this work, both national and international laws or legal instruments that have provisions for the rights to life of the people and the protection of this right to life and liberty of the people will be used as the bench marks against which extra-judicial killing in its different forms will be examined. section 33 (1) of the condition of the federal republic of nigeria 1999 (as amended) states thus: ‘every person has a right to life, and no one shall be deprived. intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in nigeria’4 this shows that the right to life is provided by law. it therefore presupposes that any person either representing the state or a non-state group that engages in killing people without the sanction of the law is engaging in extra-judicial killing and that is a breach of the law. *by onyeka aduma, phd, bl, senior lecturer, faculty of law, nnamdi azikiwe university, awka, nigeria; and *israel chijiuka oparaji, llm candidate, faculty of law, nnamdi azikiwe university, awka 1 c.o akusemnm, ‘nigeria record extra-judicial killing in nine months’, this day live.com\undex.php2020\10\11. 2 amnesty international, killing at will extrajudicial execution and other unlawful killing by the police in nigeria 3d. odinaike et al. i will kill you and nothing will happen extrajudicial killing i n nigeria, backcock university law school. 4 fgn. the constitution of the federal republic of nigeria 1999 (as amended) section 33(1). african customary and religious law review (acarelar) 4 (2023) 96 2. causes of extra-judicial killings in nigeria one of the reasons for extra-judicial killing in nigeria is that law enforcement agents suffer a lot of unpalatable working conditions especially the police. their salaries are very poor and their vehicles are in bad states and not maintained. their offices are not conducive and there is inadequate basic equipment like bullet-proof vests that can protect them against counter act from criminals. there are no provisions for medical care or life insurance or assurance policy. accommodation spaces in the police barracks are very limited and quite in deplorable states. in addition, there are no equipment to fight crime and criminals. the police therefore depend on the information provided by complainants to investigate cases and rely on the same complainants to fund their investigation.5 another reason for extra-judicial killing in the country is corruption. this can also be attributed to poor welfare packages. in fact, this has accounted for police’s poor public image and poor police community relation. tope6 has opined that a lot of extra-judicial killing in the police revolves around bribes and extortion, stressing that the desire to corruptly obtain money from people has resulted in police brutality. akinyetun stated that extrajudicial killing by the police in nigeria is an indication of their socio-economic, ecological and socio-cultural challenges.7 the police also have the problem of inadequate training infrastructure with national and international human rights laws and poor oversight by the police service commission due to the lack of the enforcement of the 2017 anti-torture act which advocates for an independent, prompt and through investigation in dealing with criminal suspects. the same could be said of the other security agents, like the officials and men of the customs and excise duties. the directorate of state service, the national drug law and enforcement agents and even the civil and defense corps. all suffer similar fate in terms of working conditions and inadequate equipment to do their jobs. the police are however more brutal and lethal in their dealings with suspects than all other security agents, perhaps due to this weak security architecture. one other cause of extra-judicial killing is the government creation of certain special squads to combat criminals and insecurity. these special anti-robbery squads are given different names in different states of the country. they are called ‘operation desert storm, operation kpochapu, rapid response squad and operation fire-for-fire. these special squads have intensified the use of dangerous weapon or lethal force with varying degrees of ruthlessness and brutality to perpetrate unlawful killing, their duties as terms of reference have always been to deal with clandestine criminal groups.8 the problem however is that they have regularly over done it. another reason of extra-judicial killing in nigeria by law enforcement agents especially the police are lack of internal control, lack of reform initiatives, inadequate documentation of arrests and torture of suspects. there is also the problem of inadequate database of detention centers and lack of treatment of tortured suspects or victims. nepotism, maladministration, delayed promotion, delay in the payment of salaries and death benefits are also reasons for the high rate of extra-judicial killing in nigeria.9 another reason for extra-judicial killing in nigeria is ignorance. most extra-judicial killings and brutality are not reported. only a handful of them are made public and this is largely due to ignorance, fear of being victimized by the police and lack of funds to get legal support. in addition, the few cases reported are either not investigated or mildly investigated with almost no record or file containing such cases. in some cases, the investigation of certain extra-judicial killing are left in the hands of non-governmental organizations (ngos) who lack the intricacies or ingredients for the investigation of offences of such magnitude. their data are often not reliable, contradictory, and insufficient or inadequate for empirical analysis.10 3. forms of extra-judicial killings in nigeria one of the forms of killing by security operation is killing at checkpoints. a lot of human lives have been wasted at the various police checkpoints in the country. it is at the stop and check points that they extort money from their unsuspecting victims and kill those who cannot cooperate with them. it is ordinarily presented to look like a security mechanism called ‘stop and check’ operation designed to fish out criminals who may be on the road for robbery operations. between 2019 and 2021, not less than 35 persons have been shot dead by the police at the various checkpoints nationwide. the police can kill for as low an amount of money as n50.00.11 killing during a short-out with armed robbers is another form of extra-judicial killing. in most cases, the robbery 5t s akinyetun, & adedimi, s o., ‘the police, extra-judicial killings and imperatives for reforms in the nigerian fourth republic’ (2022), 3 dhs., 141-166. 6t s. akinyetun, reign of terror: a review of police brutality on nigerian youth by sars. (2021). african security review. 7 ibid. 8fair trial (2020). ‘short update: covid’19 lockdown in south africa, kenya and nigeria lead to spikes in police brutality’ https://www.fair-trials.org/shortupdate.com 9the international convention personal rights 10amnesty international nigeria (2020). time to end impurity. accessed on july, 2023. https://www.amnesty.org/ download/document/afrm4495052020english.pdf 11t.s. akinyetum, ‘social media, youth participation and activisms. an analysis of the #endsars protest in nigeria’ (2021). 5(3) democracy and development journal, 4-10. https://www.fair-trials.org/shortupdate.com https://www.amnesty.org/%20download/document/afrm4495052020english.pdf https://www.amnesty.org/%20download/document/afrm4495052020english.pdf aduma & oparaji: a legal evaluation of extra-judicial killings in nigeria between 2019 and 2021 97 suspects are killed without any attempt or effort to arrest and prosecute them. in some other cases, even when they are arrested or apprehended, they are killed the following day without any form of trail or prosecution. several armed robbery suspects have been shot dead without any of them being given the opportunity of fair hearing. chances are that some of them would not have been guilty of death sentence if they were granted any opportunity of fair hearing. he-tried-to-escape killing’ is another pattern of extra-judicial killing by the police. sometimes, officers of the customs and excise also engage in this type of killing. this is where a suspect arrested is killed on the ground that he wanted to escape or run away. an example of this type of killing was that of the founder of boko haram insurgency, mohammed yusuf who the police said they killed while he was trying to escape from their custody.12 there are also several others who have been killed that way. the police can also kill by mistake. this has increased the incidence of extra-judicial killing. they call this type of killing accidental discharge. what is difficult to understand is what made the discharge or killing accidental since somebody fired the gun. most of the killings were not by mistake but orchestrated by what the killers (police) intended to achieve. a lot of innocent lives have been terminated through that method and nothing has been done to mitigate the so called ‘accidental discharge’. there are also police killings during their routine operations. this type of killing is almost common at the eve of festivities. the main purpose of the police as always stated is to guarantee a secured period for such festivities like the easter, christmas and salah celebrations. the police usually use this period to extort money from people and those who refuse to comply with their demand are either brutalized or killed. such people are eventually paraded as armed robbers and their cases are closed.13 quite often, they have carried extra-judicial killing quietly or secretly in order to keep the knowledge away from the public and this has resulted in public outcry as seen in the ♯endsars protest that erupted nationwide in october, 2020. the special anti-robbery squad (sars) was established as a department or unit in the nigeria police for the purpose of combating all forms of crime like armed robbery, kidnapping and assassination in the country especially in the southern port of the country. due to its success however, the operation of sars was extended to the whole country. however, the squad was not as successful as it was expected due to poor supervision and oversight.14 the anti-robbery squad (sars) unleashed terror on nigerians. their operations were characterized with heinous crimes like rape, extortion, hanging, starvation, forced detention, beatings, chaining suspects’ hands or legs, burning sensitive parts of suspects’ bodies with cigarette fire and forcing suspects to sit on sharp objects. the squad was feared or dreaded for their brutality and extra-judicial killing. in fact, their cells or detention rooms were branded human abattoir with some of them having the inscription, ‘welcome to hell fire’. amnesty international stated that by may 2020, not less than 82 people were brutalized by sars.15 their heinous operation created a high level of enchantment or distancing against the squad or unit so much that there was a nationwide protest calling for the disbanding of sars as a unit in the nigerian police. it is this protest that is known as #end-sars protest.16 the #endsars protest took place in october, 2020 was carried out all over nigeria by youths irrespective of ethnic leaning, religious or political affiliation. though the major participants were youths, it had the overwhelming support of elders and even parents. its main purpose was to demand for an end for police high handedness and extra-judicial killing by calling on the federal government of nigeria, especially the presidency to disband the sars unit.17 the protests lasted for about three weeks and the anger of the participating youths appeared unquenchable. it was the ugliest citizens’ confrontations with the police in the history of nigeria. however, it is still doubtful whether the police and other law enforcement agents learnt any lesson from the endsars protests as their extra-judicial killing has continued unabated.18 4. legal framework against extra-judicial killings in nigeria as indicated earlier, the idea of extra-judicial killing in this study has to do with the police. this is because 80 percent of extra-judicial killing in nigeria is perpetrated by them in spite of the fact that there are constitutional provisions for the protection of the lives and welfare of the people. it is their duty to conduct investigation that 12c. odia, ‘gone the lost victims of nigeria’s most brutal’ police statement’, (2021) https://www.adjazeem.com /features/2021/1/20. 13e. nwadozie, (2020). ‘what leads police into extra-judicial killings’ https://www.vauguardngr.com/2020/11/ what-leadspolice-into-extra-judicial-killing/. 14amnesty internal global rights, rulaac canvass full implementation of police act: despite #endsars. nigeria records 164 extra. judicial killings. 15 ibid. 16amnesty internal global rights, rulaac canvass full implementation of police act: despite #endsars. nigeria records 164 extra. judicial killings. 17 ibid. 18t o akinyetum, ‘social media, youth participation and activities. ‘an analysis of the #endsars protest in nigeria’ (2021). 5(3), democracy and development journal, 4-10. https://www.vauguardngr.com/2020/11/%20what-leads-police-into-extra-judicial-killing/ https://www.vauguardngr.com/2020/11/%20what-leads-police-into-extra-judicial-killing/ african customary and religious law review (acarelar) 4 (2023) 98 will help them pick out the real offenders from the group of suspects assembled for prosecution. 19 the constitution of nigeria, 1999 (as amended) states thus: ‘every individual is entitled to respect for the dignity of his person and section 34 (1) (a) ‘no person shall be subjected to torture or inhuman or degrading treatment.’ the above provision means that persons living in nigeria have the right to life as enshrined in the constitution of the country considered as the grundnorm of all laws in nigeria. in addition to that, the right of the citizens to life is protected by law and shall have nobody violate or terminate it unless by the order or sanction of the court following the conviction of the person for a criminal offence. as pointed out earlier, extra-judicial killing with its attendant characteristics of brutality and torture are illegal and a violation of the dignity of the human person. extra-judicial killing is not only a problem in nigeria but it has remained unabated suggesting that it cannot be minimized or out rightly stopped. in 2020 alone, the rate of extra-judicial killing assumed an alarming proportion as communal clashes claimed about 407 lives, extra-judicial killing by the police had 271 people dead, cult related activities had 247 people killed, isolated killing with no assailant identified claimed 185 lives, mob actions took about 7 lives while pirate attacks resulted in the death of 4 people in the niger delta.20 akinyetun remarked that nigeria has a checkered history of violence, brutality, human right violation and extrajudicial killing in spite of the many laws that have been enacted or legislated against unlawful killings in the country. the administration of criminal justice act, 2015 was enacted to mitigate all forms of extra-judicial killings in nigeria. akuiyetun (2020) submitted that nigeria is not lacking in the laws that regulate the conduct of security agents as they wage war against crime, criminals and other outlawed groups but that the problem has been poor or a near absence of implementation.21. there is the criminal code in the southern part of the country and the penal code in the northern part of the country all framed to fight crime and secure the lives and property of nigeria. there is also police act 1990 and police order 237 that have provided regulations on the conduct and operations of the officers and men of the police in crime fighting and criminal investigation. there is equally the administration of criminal justice law (acjl) for states that have domesticated it. all these laws were made to ensure that the police and other security agents comply with their rules of engagement on the use of force and firearms when fighting crime and criminals. sommer and assal explained extra-judicial killing as a violation of the right to life. they are of the view that it is a situation where the government looks the other way while its citizens are being murdered by government agents.22 extra-judicial killing is a problem in developing countries especially in nigeria. this accounts for why the united nations has remarked that extra-judicial killing has been on the increase in nigeria. this is consequent upon the killing of over 300 members of the islamic movement of nigeria who were protesting for the release of their leader sheikh ibrahim elzakzaky in abuja in 2020. between 30th march and 18th april, 2020, not fewer than 18 people were extra-judiciously killed by the police for various reasons bordering on the enforcement of covid-19 lockdown.23 as indicated earlier, extra-judicial killing appears to be always on the increase. from january to october, 2020 about 123 people were recorded to have been unlawfully or illegally killed by the police for offences that were either not thoroughly investigated or not even investigated at all.24 extra-judicial killing contravenes the constitutional rights of the people to life and liberty as guaranteed under sections 33-35. section 46 additionally provided specifically for the jurisdiction of the high court and legal aids where there is the need for life to be terminated. in other words, the fundamental principles of necessity, legality and proportionality should be in tandem with the seriousness of the offence and the legitimate objective to be achieved with the rule of law.25 in addition to these laws that guarantee the rights to life of the citizens of the state and ensure their protection, there are also institutional frameworks that are designed to protect the rights to life and liberty of the people. these institutions contain several human right agents or personnel who engage in periodic campaign and sometimes litigate against the abuse of human rights and extra-judicial killing as seen at the lekki gate in october, 2020 during the #endsars protest. these agencies are the human right commission, truth and reconciliation commission, the human right law service and association of 19nigeria police force (2019). reviewed force order 237, https://www.policing.infor/assets/download/reviewed-use-offorce-order-237-(237).pdf. 20u v summer, ‘examining extra-judicial killings: disseminate analysis of human rights violation; dynamics of asymmetric conflict pathways toward terrorism and genocide, (2019), vol. 12, issue 3 21d a odinaike, o. noyosorelalude, & t. o. odusaumni., ‘i will kill you nothing will happen. extra-judicial killings in nigeria and public interest litigation’, (2021), 26(6), bialystole legal studies. 145 – 165. 22t.s. summer, examining extra-judicial killings: discriminant analysis of human rights violation; dynamics of asymmetric conflict pathways toward terrorism and genocide, 2019, 12(3) 23 t.s. akinyetun, ‘reign of terror: a review of police brutality on nigerian youth by sars’. african security review. 2021 24 ibid. 25 fgn. the constitution of the federal republic of nigeria, 1999 (as amended). sections 33 – 35 and section 46. https://www.policing.infor/assets/download/reviewed-use-of-force-order-237-(237).pdf https://www.policing.infor/assets/download/reviewed-use-of-force-order-237-(237).pdf aduma & oparaji: a legal evaluation of extra-judicial killings in nigeria between 2019 and 2021 99 democratic lawyers. these institutions advocate for the protection of human rights and often times go to court to seek redress for those whose rights have been violated including cases of extra-judicial killing.26 5. foreign legal framework against extra-judicial killing at the international level, extra-judicial killing has also been outlawed. the 1948 un declaration of the human rights contains provision on the legality and sanctity of human rights especially the right to life as contained in article 3 of that un declaration which states thus; ‘everyone has the right to life, liberty and the security of a person.’ this provision gives vent to the legality of human life and liberty. by extension, the un lawfully sanctioned against extra-judicial killing. article 5 of the same 1948 un declaration of human rights states thus. ‘no one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment.’ it is important to note that nigeria has ratified the un declaration, yet much is being talked about extrajudicial killings with little or nothing being down about it27. at the regional level, the african charter on human and peoples' rights states in the article 4 that; ‘human beings are inviolable, every human being shall be entitled to respect for his life and the integrity of his person, no one may be arbitrarily deprived of his right.’ in addition to the above provision and to stress the importance of the sanctity of human life and person, act 5 of the same african charter on human and people’s rights states thus; every individual shall have the right to life and the respect of the dignity inherent in a human being and to the recognition of his legal status. all forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.’ article 6 of the same law quickly states that; ‘every individual shall have the right to liberty and to the security of his person. no one may be deprived of this freedom except for reasons and conditions previously laid down by law. in particular, no one may be arbitrarily arrested or detained. the international convention on civil and political rights also provided for the right to life for the citizen of members states. nigeria being a member of the international community and a signatory to this convention has the responsibility to protect the lives of its citizens. the european convention for human rights is not left out in sanctioning the protection of the rights to life. articles (1) of the convention states that: ‘there shall be no interference by a public authority with the exercise of this right except such as in accordance with the law.’28 6. conclusion and recommendations all these laws attest to the fact that right to life is constitutional, sacrosanct and should not be terminated outside the dictates of the law. all over the world, the life of the human person is respected and efforts are deliberately or consciously made by the authorities of the state to protect the dignity of human life, nigeria is the only exception. one painful thing is that nigeria has ratified these laws but implementation is the problem. in view of the above conclusion, it could be recommended that there should be reform initiatives in the police that will restructure the officers and men to the core values of their job which is to protect the lives of the people. the reform should include enhanced working conditions and the provision of adequate investigative infrastructure that will help them do their job well. government should go beyond making laws but focus more on law enforcement. laws made should be obeyed and violators should be punished. the courts should come up with stiffer penalties. death sentencing and life imprisonment should be given to violators of human rights, especially the right to life. the legislature should come up with laws that will strengthen internal control mechanism within the police. this will reduce abuse of power by the police. 26amnesty, international limited global right, rulaac canivas full implementation of police act: despite #endsars, nigeria records 164 extra-judicial killings 27 universal declaration of human rights: 1948 (ushr) article 3 28 european convention for human rights: articles (891) and (2). olaoluwa: executive/legislative relations: role complementability at the local government, lagos state of nigeria in focus 111 executive/legislative relations: role complementability at the local government, lagos state of nigeria in focus* abstract there are three main arms of government in every state. these arms of government are always constitutionally empowered to carry out certain functions alone while they may also be empowered to oversee certain functions being carried out by another with power to take certain overriding powers or report to another organ of the government for a corresponding action. in most cases there is need for the legislative organ to cooperate with the executive organ for overall better performance of the government in delivering the dividend of good governance to the people. at other times, there may be conflict between these two organs especially where there is struggle for supremacy. this paper sets out to analyse the relationship between the executive and the legislative arms and the possible relationship in roles between them in the management of the administration of government business. our conclusion will expose the problems and also offer solutions to any probable conflicts between them. keywords: government, legislative, executive, complementary in roles. 1. introduction nigeria being a federation shows that the country is politically organised in such a way that there exist different tiers of government. there is the federal government at the centre of the political organisation of the country. there are also state governments that supposedly contributed part of their powers to constitute the federal government at the centre. apart from the two tiers of government mentioned above, there exists the third tier of government which is the local government. the local government is the government at the grassroots. this is the people’s government meaning that it is the closest to the people amongst the three tiers of government. the political organisation of state powers into governments at different tiers presupposes that each tier of government is called upon to fulfill certain functions in the society. for a government at any level to carry out any function, it has to be properly organised in such a way that state powers are not concentrated in the hands of only one person or a group of persons or persons from one part or region of the country. thus, according to montesquieu1, the principle of separation of state powers must be upheld. this should be so because power corrupts, absolute power corrupts absolutely. here montesquieu is not strictly speaking about tiers of government per se but about the three major organs of government at the same level of governance. there are the legislative arm, executive arm and the judicial arm as the organs of government at each level of the three tiers of government in a federal state as presently obtained in nigeria as in most countries that run the federal system of government. at the local government level, the two prominent arms of government are the executive and the legislature popularly referred to as the council and its members called councilors. the judiciary of the state serves the local government areas in the area of interpretation of statutes and resolution of conflicts if and when they arise. there is no imputation here that federal courts are excluded. federal courts administer federal laws and laws of other tiers of government on appeal and their decisions are binding on lower courts. the question of role complementability between the executive and the legislature in a military dispensation does not exist in a military regime these roles, functions and powers are fused into the executive arm of the government which among other things makes laws in form of decrees, edicts and orders as the case may be. we shall now look at how there can by synergy and cooperation in the roles of the legislature and the executive in the governance of a state without much animosity and rancour. 2. the legislature at the local government in the present dispensation, where functions and powers are distinct between the executive and the legislature, role complementability becomes the key word if the democratic system of government is to survive in nigeria. in the former soviet union, there are many tiers of government below what we now know as the state government. concerning these tiers of government, the 1977 constitution of the soviet union declared that the bodies of state authority in territories, regions, autonomous area, districts, cities, city districts, settlements and rural communities shall be the corresponding soviet of people’s deputies2. the phrase ‘soviet of people’s deputies’ means the ‘council’ in our context while ‘people’s deputies’ means ‘councilors’. the soviet  by r. o. olaoluwa, llm, phd, associate professor, department of jurisprudence and international law, faculty of law, lagos state university, lagos, nigeria; solicitor and advocate of the supreme court of nigeria; former secretarygeneral, nigerian society of international law. e-mail: rufus.olaoluwa@lasu.edu.ng. 1 quoted in: david walker, the oxford companion to law, clarendon press, oxford, 1980, p. 854 2 the constitution of the ussr, 1977, article 145. about:blank african customary and religious law review (acarelar) 4 (2023) 112 constitution further provides that local soviet of people’s deputies shall decide matters within the powers accorded them by the legislation of the ussr, the appropriate union republic and autonomous republic. their decisions shall be binding on all enterprises, institutions and organisations located in their area and on officials and citizens3. the nigerian 1999 constitution does not specifically provide for different arms of government at local level arid as such do not see the essence of specifying who should do what. what it did was to list a host of functions to be carried out by the local government council4. however, the local governments themselves are to be created by a law of the state government5. if we have to compare our present nigerian 1999 constitution vis-à-vis its provisions for the local government with the ussr constitution of 1977, it will be shown clearer that the nigeria has only succeeded in enthroning a sort of confusion as a system at the local government level. the role of the council emanated from the exercise of legislative powers and functions of a local government council as provided for by the state’s law on local government6. according to the lagos state local government (administration) law 1999, the council is declared to be the legislature of a local government area and the council shall exercise legislative powers in the local government area7. the mode of exercising legislative power at the local government area is by bye-laws passed by the council and. assented to by the chairman. the chairman may refuse to assent to a bye-law presented to him for assent8. his refusal means that the bye-law is not passed. this can however be cured if the same bye-law which the chairman refused to sign into bye-law is again passed by the council by two-third (2/3) majority. if this happens, the bye-law shall become law and the assent of the chairman shall not be required9. if the above procedure is resorted to) it means that the relationship between the council and the local government chairman is not cordial especially if majority of the council members are of the same political party with the chairman. if this situation is not quickly resolved, it may lead to the removal procedure particularly if the chairman is accused of misconduct10. according to the lagos state law on local government (administration) 1999, ‘misconduct’ includes breach of the oath of allegiance or oath of office of the chairman or the vice-chairman or a breach of the provisions of this law or a misconduct of such nature as to bribery or corruption or false declaration of assets and liabilities or conviction for treasonable felony11. it is pertinent to note that misconduct includes the breach of oath of allegiance or oath of office. the oath of office and oath of allegiance of the chairman or that of the vicechairman as contained in the lagos state local government (administration) law is the same as that of the governor of a state and the president of nigeria12. by the oath of allegiance and oath of office the chairman is to preserve and defend the constitution. by the oath of office, the chairman is to abid.e by the code of conduct contained in the fifth schedule to the constitution frn 1999. these provisions have validly put the chairman of a local government in a position in which the constitution is brought to bear on his activities and functions. the organ directly in charge of overseeing the chairman is the council. if there is no understanding in the running of affairs of a local government area there will not be peace and the target of such situation is the electorate as such situation will hamper the execution of the programmes of the local government administration. the disagreement between the councilors and their chairman can be predicated on party policies. this may be because there is no councilor without being a member of a political party and sponsored by the political party13. it is a normal phenomenon that a party sponsored councilor will want to uphold the policy of his party in the council. this party policy will inform his contributions when a bye-law is being debated in the council. it is equally on this same point that a chairman may refuse to give assent to a draft bill. 3. the executive at the local government the executive arm of the local government is the executive chairman supported by the executive vicechairman. one of the crucial qualifications of a chairman is that he must be a member of a political party and sponsored by that party14. the executive powers of a local government shall be vested in the chairman of the local government. the executive powers vested in the chairman shall be exercised. by him directly and where 3 ibid. article 148, 4 the 1999 constitution frn, fourth schedules, 5 ibid. s.7 6 ibid 7 s. 38(1), (2,) 8 ibid. s.38 9 ibid. 10 ibid. s.24 (1 0) 11 see schedule 2, local government (administration) law 1999, lagos state and schedule 7, constitution frn 1999. 12 see schedule 2, local government (administration) law 1999, lagos state and schedule 7, constitution frn 1999 13 local government administration law, 1999, lagos state, s. 14(d) 14 ibid. s. 20(d) olaoluwa: executive/legislative relations: role complementability at the local government, lagos state of nigeria in focus 113 necessary through: i) the vice-chairman or supervisors of the local government and ii) the officers in the service of the local government. these are the civil servants of all categories15. the executive powers vested in the chairman include the execution and maintenance of this law, all bye-laws made by the council and extend to all matters with respect to which the council has for the time being power to make bye-laws. the chairman may attend. a session of the local government council either to deliver an address on the local government affairs or to make such statement on the policy of the local government as he may consider to be of importance to the local government. the council may invite any of the supervisors of the local government to explain the conduct of his department and in particular when the affairs of that department are under discussion. the job of the executive arm of the local government where the chairman is the head is synonymous with the functions of the local government area. as such, it is the chairman or the exe as the case may be that is always in focus if the local government succeeds or not. that is why the executive should work in close contact with the legislature at the local government level, 4. role complementability in the local government administration the reason for the creation of the local government is to bring the government nearer to the people and meet their aspirations. by direct or indirect implication, there is nobody in nigeria that does not have business with a local government. even the federal capital territory is sub-divided into seven (7) area councils16. this fact raises point of law and fact that the existence of local government areas in nigeria is not the fulfillment of political promise but a fundamental tier of government. it is therefore a must that the local government must function in such a way that the provisions of the constitution in relation to the provision of social amenities to the people are fulfilled. to do this effectively, one arm of the local government must complement the other. in complementing the role of the other organ of government, an arm of the government of the local government should not compromise in its controlling functions. the problem here is not the exercise of power vested in the legislative or the executive arm of the local government but a call to duty from both the chairman and the co it was earlier mentioned that the chairman and councilors are not only members of political parties, but sponsored by the parties. having been elected, different interests will directly or indirectly display their conflicting nature. these interests may be many but suffice to mention (i) a call to duty i.e. to do the job for which a person is elected to do (2) the compliance with party policy either as a member of the executive or legislature (3) personal interest i.e. to strive to become a speaker, the deputy speaker, leader or any other position within the local government. these interests are the bane between the executive and the legislative arm of the local government. a chairman is not qualified to contest for the position of chairman if he is not a member of and sponsored by a political party. having been elected and assumed office, he ought to become a chairman of everybody in the local government, but this seemed not to be the case. he cannot resign from the party that sponsored his election or decamp to another party. if he does, his tenure as chairman or the vice-chairman is determined by that action17. this means that a chairman who disagrees with his party will be swimming in troubled waters. the disagreement either in policy or otherwise with the party may set the legislative arm against the chairman. however, the position is not clear if the chairman and more than two-third (2/3) members of the local government council disagree with the party. this is not clear because the party itself is incapacitated if the disagreeing members are still ‘party loyalists’. it is presumed that if an elected member of the party do not resign or do not become a member of another party, the law may not be invoked against such a member, this in effect seems to open the veil by which the local government system is not accountable directly to the state or the federal government the only apparent control is from the council and the party. it therefore follows that if the chairman concentrates on satisfying the councilors and the party that sponsored him, his position may be formidably secured even in the face of stiff opposition from the electorates on the account or allegation of non-performance or non-fulfillment of election promises. in the ussr, the executive arms of the local soviets of people’s deputies are directly accountable both to the soviet that elected them and to the higher executive and administrative body18. it may be ideal to borrow from the experience of the soviets by making the people (the electorate), the council and the state governments higher bodies to which the local government system is accountable. 5. conclusion the local government system is one of the things that the people should enjoy under a democratic dispensation like ours. our analysis of the role complementability in the executive and legislative relations shows that all is not too well with the local government system as it is presently constituted. it has been discovered that party politics has been enthroned as a business in the hands of the party and. one of the commission agents of the 15 ibid. s. 33 16 schedule ii part 11, constitution frn 1999 17 local government (administration,) law, lagos state, 1999; s. 27(c) 18 the constitution of the ussr, 1977; art. 150 african customary and religious law review (acarelar) 4 (2023) 114 party is the local government. it has also been discovered that the preoccupation of most governments at the local government level is not to be removed and to be able to secure a second ticket. to do this nothing matters except the party and the council. this position should be changed to a situation by which the enjoyment of amenities to be provided by the local governments should be fundamental rights of the electorate. the breach of which can be contested in the law courts. it has also been discovered that the control of the state is not felt at the local level. if the laws establishing the local governments are enacted by the state government, it is not enough for the local government to respect all laws and institutions of the state and federal government. there should be quarterly or yearly report to be presented to the state governments by the local government authorities. it is good to be a member and be sponsored by a political party but once a man is elected to a position, he should cease to officially be a member of that party. the attention of political office holders at all levels should be divorced from the party and directed to the yearnings and needs of the people. this is the only way the common man on the street will feel that the military is no more in power and that there is a new democratic wind blowing in nigeria. the common man is not interested in whether the politician or the soldier is in control of political power in his society. all he cares about is how to get job, food, shelter and especially some other social amenities without which the enjoyment of life will not be complete. the local governments have been established in main to address these problems. it is only when these are addressed in part or in whole that the common man can listen to the preaching of a democratic government. let us join hands with the local government in order to achieve the dreams of the nigerian common man and for him to enjoy the gains of democracy. acarelar 2 (2021) page | 99 towards same-sex marriages in nigeria and england*1 abstract same sex marriages are becoming popular acceptable norms in many nations in contemporary times. the developed nations of the world are increasingly embracing this phenomenon named same sex marriage. the paper is a product of relevant statutes, treaties, textbooks, judicial precedents. the paper is imperative because of recent agitations by certain same sex persons for recognition in nigeria coupled with the nation’s historical ties and legal jurisprudence with england. the paper examines the concept of marriage, same sex marriages in nigeria and england, and marriage as a traditional institution. homosexual activities either between male or female adults were considered activities carried out between two consenting adults. different legal systems of the world at one time and by legislations criminalized it. it was towards the advert of the 21st century that different western societies commenced the reviewing of their legal systems to legalize same-sex union. from time immemorial, diverse nations resisted agitations to recognize same gender marriage. most of those nations yielded to pressure and then amended their laws to accommodate same-sex marriage. this paper concludes that different positions confirm that the world is moving towards same sex marriage. the day will come when nigeria will decriminalize same-sex marriages. it was recommended that the desire could be achieved without instrumentality of the law and without affecting the traditional concept of marriage. same-sex couples could as well go about their activities without seeking any license from the government provided the law of the land does not ban their activities. keywords: sex, marriage, gay, homosexual, lesbian 1. introduction homosexual practice is not a new phenomenon. homosexual activities either between male or female adults were considered as acts or activities carried out between two consenting adults as purely private affairs in society. different legal systems of the world at one time or the other frowned at it and by legislations criminalized it, thereby making it a punishable offence with death or terms of imprisonment. the concept of same sex marriage was unknown to legal jurisprudence till about the end of the 20th century, following pressure from gay activists like gay liberation funds who first met at the (lse) london school of economics on 13th october 1970. june 1972 saw the fortnight publication of gay newspaper called the gay news. this reported on discrimination and political and social advances but also campaigned for law reforms. it ceased publication on 15th april 1973. 1st july 1972 witnessed the first uk gay pride march when one thousand people ran from trafalgar square to hyde park in london. previously on 27th november 1825, james pratt and john smith were the last two men to be executed for homosexual act in the uk. the 1828 act legislation under which the last two men were executed was replaced in 1861 thus revoking the death penalty for homosexuality act between them and replaced it with a prison term of between ten years and life imprisonment. it was towards the tail end of the 20th century and the dawn of the 21st century that countries from the different continents of the world predominantly england and western societies commenced the process of reviewing their legal systems to legalize same-sex union or association. these reviews brought about the introduction, acceptance and legal recognition of same-sex union in the form of civil partnership and later marriage between same sex partners2.this paper centers on the introduction, the concept of marriage, same sex marriage in england, same sex marriage in nigeria, marriage as a traditional institution and the conclusion. 2. the concept of marriage marriage is the world’s oldest institution. in christendom, it is believed that it was instituted by god himself and it is as old as man’s creation. marriage therefore, is believed to be a sacred union that exists between a man and a woman. the term marriage has been described elsewhere as ‘a socially sanctioned 1* by alfred abhulimhen-iyoha, llb (hons), bl, llm, phd (law), phd (strategic studies), mpa, pgde, trcn education, diploma (christian theology), email:aaiyoha@yahoo.com. phone: +2348055968440 2the wolfeden committee (of the british parliament) report on homosexuality and prostitution in 1957. abhulimhen-iyoha: towards same-sex marriages in nigeria and england page | 100 union, typically of one man and one woman, in this connection called husband and wife.’ typically they form a family, socially, through forming a household, which is often subsequently extended biologically, through children. it is found in all societies, but in widely varying forms. in islam, marriage has been defined as ‘a contract that results in the man and woman living with each other and supporting each other within the limits of what has been laid down for them in terms of right and obligations.’ under the marriage act chapter 218, laws of the federation of nigeria 1990, marriage is said to be one that is performed in compliance with the marriage act either in consideration with the customs of the bride and the groom’s family by paying the bride price, the giving of gifts etc. furthermore, ’it is a mutual contract between a man and a woman whose goal is for each to enjoy one other, become a pious family and sound society. the common law definition of marriage is credited to lord bughley wherein he refers to it as, ‘the voluntary union for life of one man and one woman to the exclusion of all others’. the existing marriage law in nigeria, the marriage act, made no attempt to define marriage. however, recourse can be had to the interpretation act, which again did not define marriage. according to the act, ‘monogamous marriage to mean a marriage which is recognized by the law of the place where it is contracted as a voluntary union of one man to the exclusion of all others during the continuance of the marriage.’ marriage has been further defined as ‘a legal union entered into between persons of opposite sex in accordance with the marriage act, islamic and customary laws. 3. same sex marriage in england marriage is an important institution in england. the principles of long-term commitment and responsibility which underpin it bind society together and make it stronger hence the monarch is seen as a royal family whose marriage is viewed as a marriage compass for marriage virtue in england. the government believes that we should not prevent couples from marrying unless there are very good reasons – and loving someone of the same sex is not one of them. the marriage (same sex couples) act 2013 makes the marriage of same sex couples lawful in england and wales, while protecting and promoting religious freedom. the government believes that opening up marriage to all couples demonstrates society’s respect for all individuals, regardless of their sexuality, making our society fairer and more inclusive for all its citizens.3 the marriage (same sex couples) act 2013, was passed on 17 july 2013, and the first marriages of same sex couples took place on saturday 29 march 2014. same sex couples who got married abroad under foreign law, who were consequently treated as civil partners in england & wales, are now recognized as being married in england and wales. the act enables same sex couples to marry in civil ceremonies; ensures those religious organizations willing to do so can opt in to marry same sex couples according to their rites; protects religious organizations and their representatives from legal challenge if they do not wish to marry same sex couples; enables civil partners to convert their partnership to a marriage, if they wish; and enables individuals to change their legal gender without having to end their marriage. a civil partnership is designed as a legally recognized union of a same sex couple. the couples have rights that are basically identical to those of marriage.4 the act also requires reviews to be conducted to consider three issues: (1) whether faith organizations should be able to conduct legally valid marriage ceremonies; (2) the operation and future of the civil partnership act 2004 (now civil partnerships, marriages and death (registration etc.) act 2019. this comes in force on 26 july 2019 having received royal assent on 26 may 2019 in england and wales; and (3) relevant differences in survivor benefits offered by occupational pension schemes. religious protections the act reflects the government’s commitment that no religious organization or representative will be forced to conduct or participate in same sex marriage ceremonies. article 9 of the european convention on human rights guarantees the right to freedom of thought, conscience and religion, and the act protects and promotes religious freedom through the government’s ‘quadruple lock’. this ensures that religious organizations and their representatives can continue to act in accordance with their doctrines and beliefs on this issue.5 3 marriage (same sex couples) act 2013. was introduced by maria miller m.p. and received royal assent on 17 july 2013. 4ryan t. anderson (2013) marriage: what it is, why it matters, and the consequences of redefining it: http://www.heritage.org/research/reports < accessed on sept. 18, 2013). 5fearon cited in definition of marriage. available at www.duhaime.org/legaldictionary/m/marriage.aspx < accessed on july 12,2013> acarelar 2 (2021) page | 101 the quadruple lock in order to calm the fears that church and other religious institutions will be forced to perform same sex marriages against their will, the government of uk therefore proposes the quadruple lock. this makes it abundantly clear that a religious marriage ceremony of a same sex couple will only be possible if these four cast-iron in legal assurances are guaranteed: (1) the governing body of the religious organization has opted in by giving explicit consent to marriages of same sex couples; (2) the individual minister is willing to conduct the marriage, (3) if the ceremony takes place in a place of worship, those premises have been registered for marriages of same sex couples (4) the church of england and church in wales cannot opt in as they are effectively banned from conducting same sex marriages otherwise the church canon law must be changed if they wish to conduct same sex marriage explicitly states that no religious organization can be compelled by any means to opt in to marry same sex couples or to permit this to happen on their premises; and no religious organization or representative can be compelled by any means to conduct religious ceremonies for same sex couples. the british court and the european court of human rights cannot be used to challenge decisions not to conduct their marriages. uk amends the equality act 2010 to make clear that it is not unlawful discrimination for a religious organization or representative to refuse to marry a same sex couple.6 4. same sex marriage in nigeria one of the contentious issues in the debate over homosexuality and same sex marriage in nigeria is whether a marriage between persons of the same gender is totally alien to nigerian culture and tradition. those opposing same sex marriage have continued to argue that same gender union is foreign to africa. but on the contrary, leo igwe has argued that homosexuals have always existed in africa. he is of the view that gay sex is as old as nigerians in africa, and predates the contact with arab and western cultures, but as in other cultures, gays in africa have until recently been in the closet, expressing their sexual emotions and orientation in private, because heterosexuality is seen as the norm. consequently, homosexuals in nigeria contract heterosexual relationship to bear children and to live 'normal lives'. that is why some say there are no gays in nigeria.7 igwe condemned what he called nigerian rash of comments dripping hatred, disgust, and condemnation for the homosexuals. whilst many called for the burning, execution, decapitation or stabbing of these ‘vile’ men with their ‘disgusting’ lifestyle, others lamented the decline of nigerian moral values and the concomitant importation of depraved western cultural values. under no circumstances, it was argued, should the notion of human rights be extended to such persons, because after all, they were sub-human, doing stuff that even animals would not do. advocates of the current trend in the same-sex debate readily put blame on the british for inserting antigay laws in our statutes books on the eve of their departure. they hold that the present persecution of homosexuals in nigeria has some roots in our colonial experience. western imperialists forced on these colonies their social, cultural and political ideologies. unfortunately, at independence most african countries blindly adopted the laws and constitutions of their colonial masters.8 for instance, the former british colonies, nigeria, kenya, uganda, ghana, adopted the british common law which until the 1960s prohibited homosexuality; while the islamic majority states adopted the sharia law introduced to africa by arab jihadists which sanctions death for gay sex. so homosexuality is a crime in nigeria. mensah is of the view that, the fact that anti-gay laws inserted into the statute books by the departing british colonialists should in itself put paid to that ridiculous notion that the idea that homosexuality is a western concept and therefore foreign to africa as nonsense. homosexuality, he claimed, cuts across all cultures worldwide and is simply human, in as much as it is also derided across cultures. in fact, until relatively recently in western societies, homosexuality was frowned upon and criminalized in many countries. even today, in spite of liberal laws, there are gay men in the west who 6matthew spalding, ’a defining moment for marriage and self-government’’. available at www.heritage.org/reserch/reports/2013/03/redefining< accessed on dec.20, 2013>. 7‘those who want homosexual relationships to be redefined as marriages say that many aspects of their relationships are like marriage—having sexual play, living together, loving one another, etc.—and therefore they should be allowed to call their relationships marriages and should be recognized in the law as marriage partners…the answer they want is for law making and adjudicating authorities to change the law based on the principle that reality is defined by the will and declarations of individuals, all of whom should be treated without discrimination’ 8melissa bull et al, homosexual law reform in australia: australian institute of criminology, 1991. http:/www.aic.gov.au < accessed on feb. 22, 2014>. abhulimhen-iyoha: towards same-sex marriages in nigeria and england page | 102 hide their sexuality and go through loveless marriages just for the sake of ‘keeping up appearances’; fearful of the ridicule and contempt of their peers were their secrets to ‘come out’. the strict nigerian communal expectations of yesteryear simply meant men who had sexual feelings for men were forced to bury them whilst they went through the tortuous and sometimes unhappy ritual of marriage and procreation that was expected of them, and in many instances, led ‘double lives’. the argument therefore that homosexuality is intrinsically a western perversion foisted on poor but hapless nigerians fits into an interesting narrative, but it is simply a hysterically jingoistic, ignorant one devoid of any intellectual basis or evidence. on several fronts in africa’s evolving culture, the pressure to conform, which is the bedrock of our ancient communalistic society, is fast evaporating, and clearly in that vacuum groups begin to assert themselves as they cast off the ‘yoke’ of conformity. it therefore should come as no surprise that homosexuals in ghana, south africa and nigeria are becoming bolder by the day. as urbanization and education and international travel and the internet spread into africa, it is inevitable that certain structures will tumble down, and we may be powerless to do much about it. currently we have nigerians claiming political asylum in the uk on the basis of their persecution for identifying as a member of lgbtq in nigeria. the lgbtq community in england actively supports them financially, morally, emotionally and psychologically. some of these applications for asylum are even supported and are peculiar situations raised on the floor of the house of parliament to the extent that the british home office, the british court and the european court of human right now grant or approve refugee status of these applicants within the meaning of the 1951 un convention. also, many educated nigerian women with independent careers and finances no longer feel the need to remain trapped in loveless and sometimes abusive marriages just to conform to traditional society’s expectation of ‘stable’ marriages. single parenthood no longer is a matter of eternal shame; hence the traditional view of marriage even in nigeria is beginning to water down. a woman’s choice to work as a prostitute no longer raises hysterical outrage-certainly not in the anonymous jungles that our cities have become. as people become more and more aware of their democratic rights of self-expression through the concept of human rights they will remind you that it is their life if you dare reproach them for their chosen lifestyle.9 our extended family system is dying slowly and the nuclear family gains center ground is shifting. many young people come from broken or one parent family and have taken their own destinies into their hands. we are very slowly but gradually ceasing to care what another person does with his or her life. it is within this context of the western-style individuality taking over nigerian communality that the gay nigerians feel unwilling to live according to the strict demands of societal expectation and demand to be left alone to get on with his life as he see fit, sometime seeking protection abroad and contributing to brain drain and skills shortage in nigeria. nigerian philosophy of marriage in nigeria, marriage is seen as a community affair. marriage is held very sacred and in very high esteem; and of a very ontological and moral value. among the igala people, marriage is between families and not just individual man and woman who met somehow and think that they can live the rest of their lives together. in nigerian moral thought, marriage and procreation belong together. without procreation marriage is incomplete. this is a unity which attempts to recapture, at least in part, the lost gift of immortality.10 marriage is regarded as an obligation by means of which the individual contributes the seeds of life towards man’s struggle against the loss of original immortality. biologically both the husband and wife are reproduced in their children, thus perpetuating the chain of humanity. in some societies it is believed that the living dead are reincarnated in part, so that aspects of their personalities or physical characteristics are re-born’ in their descendants. a person who has no descendants in effect 9 european convention of human rights, council of europe, rome, adopted on 19th november 1950, effective on 1953, resolution 2200a (xxi); the african charter on human and peoples’ right, organisation for african unity (now african union), banjul, adopted on 1981, came into force on 1986, resolution 115(xvi); article 2 provides ’every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present charter without distinction such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, birth or any status.’ 24the african charter on human and peoples’ right, organisation for african unity (now african union), banjul, adopted on 1981, came into force on 1986, resolution 115(xvi). article 2 provides ’every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present charter without distinction such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, birth or any status.’ acarelar 2 (2021) page | 103 quenches the fire of life, and becomes forever dead since his line of physical continuation is blocked. from this background therefore, the idea about marriage in contemporary nigerian contends with the issues of homosexuality and same sex marriage.11 marriage as traditional institution one of the most respected african scholars that captured the concept of marriage is mbiti. he described marriage as a complex affair with economic, social and religious aspects which often overlap so firmly that they cannot be separated from one another. it is the point where all the members of a given community meet: the departed, the living and those yet to be born. all the dimensions of time meet here and the whole drama of history is repeated, renewed and revitalized. marriage is a drama in which everyone becomes an actor or actress and not just a spectator. therefore, marriage is a duty, a requirement from the corporate society, and a rhythm of life in which everyone must participate. otherwise, anyone who does not participate in it is a curse to the community, he or she is a rebel and a law breaker, he is not only abnormal but ‘under human’. failure to get married under normal circumstances means that the person concerned has rejected society and society rejects him in return.12this is a sacred understanding and obligation which must neither be abused nor despised. similarly, marriage and procreation as a unity attempt to recapture immorality in the matter of ‘remembering’ the living-dead. so long as there are persons in the family who remember someone who has physically died, this person is not really dead: he is still alive in the minds of his relatives and neighbors who knew him while he was in human form. his name still means something personal, and he can ‘appear’ to members of his family who knew him and who would recognize him by name. this, as we have seen, is extremely important in nigerian societies. this is a serious philosophical concern among traditional nigerian peoples. to lack someone close who keeps the departed in their personal immortality is the worst misfortune and punishment that any person could suffer. to die without getting married and without children is to be completely cut off from the human society, to become disconnected, to become an outcast and to lose all links with mankind. everybody is expected to get married and bear children and, that is, the greatest expectation of the individual for himself.13 marriage is a family affair and it involves the combining of two lives, two families, and sometimes even two communities. marriage is sacred in nigeria and in other african nations because it solidifies relationship that enriches communities and nations by bringing forth new life and new hope. the union of man and woman is a celebration of the natural continuity of life. marriage is the only known incubator for the raising of balanced socially functional children. because the bride is the link between the unborn and the ancestors, she is treated with respect. a bride may bear a very powerful child. an igala adage on the significance of the bride says, ‘no one knows the mother of the king’. in other word every bride is a potential mother of the king. mbiti identifies the traditional african family as a setting wherein the vertical power structure of the society is introduced and sustained as predominant over the freedom of individuals. in nigeria, the survival of kinship in the social structure depends on marriage; marriage always establishes very strong bonds between the individuals belonging to different families and clans, especially when children are born. when a community seeks out a wife or a son-in-law, they look for one that lives up to their expectations, namely; a person with good moral qualities, industrious in physical work, respectful towards their elders and a good reputation. physical attractiveness doesn’t matter as much as the community’s expectations. similarly, sex is not used for biological purposes alone. it has also ontological, religious and social uses. mbiti lists it to a solemn seal or signature, in which sex is used as a sacred action, as ‘sacrament’ signifying inward spiritual values.14 mbiti lists what constitutes sexual offences in african societies to include; ritual offences which arise on account of taboos and ritual regulations, where people (including married couples) are forbidden from having sexual relations at given times, adultery, when discovered is severely dealt with in some societies the guilty person (particularly a man) would be whipped, stoned to death, made 11 toone v austria (un committee for human rights). cited in katharina boele-woelki and a. fuchs (eds), legal recognition of same-sex couples in europe, (antwerp, intersentia, 2003) p 184 referred to in i. o. omoruyi, an introduction to private international law: nigeria perspectives (benin: ambik, press limited, 2005) p 257. 12marriage as a concept and its purpose : dksuresh: http://www.scribd.com/doc/ 2505629/marriage_as_a_concept_&_purpose < accessed feb. 25, 2014> 13 ibid 14 ibid abhulimhen-iyoha: towards same-sex marriages in nigeria and england page | 104 to pay compensation or have his head or other part of his body mutilated, fornication, incest, rape, seduction, homosexual relations, sleeping with a forbidden ‘relative’ or domestic animals, intimacy between relatives, children watching the genitals of their parents (in the wide usage of the term), all constitute sexual offences in nigerian community. nigerians are very sensitive to any departure from the accepted norm concerning all aspects of sex since any of these offences upset the smooth relationships of the community which includes those who have already departed. marriage then, is an ontological duty and responsibility for every nigerian.15 5. conclusion from time immemorial, different countries of the world over time resisted the pressure and agitation by different groups to recognize same gender marriage by passing gender neutrality laws that allows samesex couples to be married like the heterosexual couples. but at the wake of the 21st century most of those countries gave in to such pressure and then amended their laws to accommodate same-sex marriage into their legal system. the civil union act 2006 in south africa made sex legal, being the first african country to legalize gay marriage. currently 25 countries in the world have legalized gay marriage. in april 2003, netherlands became the first country in the world to allow gay and lesbian couples to marry in a civil ceremony. although such union are frowned at in israel but it does recognize gay marriages performed elsewhere. this various positions confirm that the world is definitely collapsing and the foundation of a new bridge called same sex marriage is in the horizon. however, there is a school of thought that opines the whole idea of same-sex marriage couples is about adult pleasure desires and nothing more. this desire could be achieved without seeking the instrumentality of the law to gain recognition and legitimacy without tinkering with the traditional concept of marriage. same-sex couples could as well go about their activities without seeking any license from the state or government for any form of legitimacy so long as the law of the land does not ban their activities. how long nigeria would continue to resist such pressure particularly those from the international community championed by the united nations human rights council, which say the present law against same-sex marriage is anti-human rights. the day will come when nigeria will decriminalize same-sex association or union and enact a marriage law that is gender neutral, to accommodate same-sex association. especially when such sentiments are currently held and even mentioned by moneybags and powerful presidents like ex-president obama of the united states who broached the subject with president uhuru kenyatta of kenya and ex-president goodluck jonathan of nigeria during their high level meeting. 15 ibid african customary and religious law review (acarelar) 5 (2024) 97 | p a g e are states ‘persons’ for the purposes of the new york convention?: the ruling of the united states court of appeals for the dc circuit in zhongshan fucheng industrial investment co. ltd v federal republic of nigeria (no. 23-7016) in view* abstract the convention on the recognition and enforcement of foreign arbitral awards 1958 (new york convention) applied for the recognition and enforcement of foreign arbitral awards which arose out of differences between ‘persons’. the question had persisted on whether ‘persons’ in the convention included states, whether acting in their sovereign capacity or acting in their private capacity. the aim of this study was to review the state of law on the purport of the word ‘persons’ for the purposes of recognition and enforcement under the new york convention in the light of the recent split decision of the us court of appeals for the dc circuit in zhongshan fucheng industrial investment co. ltd v federal republic of nigeria. the objective of this study was to determine whether ‘persons’ included states both acting in their sovereign capacity and in their private or commercial capacity. doctrinal method was employed in the course of this research with the analyses of the relevant sections of the new york convention itself and case laws. this research found that the new york convention did not define the word ‘persons’ used in article 1 (1). it was further found that the failure to define the word ‘persons’ in the new york convention had sometimes led to controversies on whether states qualified as such, whether acting in their sovereign capacity or private capacity. it was also found that except to the extent that states consented, sovereign acts of a state generally enjoyed sovereign immunity. it was therefore recommended that the new york convention should be amended to include a clause that should specifically define ‘persons’ as natural and juridical persons, including a state only when acting in private or commercial capacity. keywords: new york convention, sovereign acts, persons, recognition, enforcement 1. introduction the united nations convention on the recognition and enforcement of foreign arbitration award 1958, otherwise known as the new york convention, came into force on the 7th of june 1959. it replaced the geneva protocol on arbitration clauses of 1923 and geneva convention on the execution of foreign arbitral awards of 1927.1 article 1 (1) of the new york convention provides as follows: this convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a state other than the state where the recognition and enforcement of such awards are sought, and arising out of differences between persons, whether physical or legal. it shall also apply to arbitral awards not considered as domestic awards in the state where recognition and enforcement are sought. ‘persons’ as used here is not defined in the convention. while there is no doubt that ‘persons’ includes natural and juridical persons, it is not clear whether this includes states both in their sovereign and private capacities. the travaux preparatoires of the new york convention was also not conclusive on whether ‘persons’ includes states acting in their sovereign capacity and states acting in their private capacity. this distinction is pertinent simply because different rules of immunity apply to states when acting in their sovereign capacity and when acting in their private or commercial capacity. the lack of definite definition of ‘persons’ in the new york convention has given room to various interpretations with varying effects. the aim of this study, therefore, is to examine the law on the purport of the word ‘persons’ for the purposes of recognition and enforcement under the new york convention. this is manifested in the recent ruling of the united states court of appeals for the district of columbia circuit in the case of zhongshan fucheng industrial investment co ltd v federal republic of nigeria2. the objective of this study is to determine whether the expression ‘persons’ in the new york convention includes states both acting both in their sovereign capacity and in their private or commercial capacity. 2. the ruling of the united states court of appeals for the district of columbia circuit in the case of zhongshan fucheng industrial investment co ltd v federal republic of nigeria3 the major issue considered in this case by the united states court of appeals for the district of columbia circuit was whether states acting in their sovereign capacity qualify as a ‘person’ under the new york convention. the appeal is one of the numerous cases that stemmed from an arbitration award made against nigeria in favour of the chinese company, zhongshan fucheng industrial investment co ltd (zhongshan), in 2021 by an arbitration panel *by ikechukwu okwudili odionu, llb, bl, llm, phd, mcarb, lecturer, faculty of law, university on the niger; principal attorney, ike odionu & associates, no. 110 modebe avenue onitsha, anambra state, nigeria. email: ikeodionu@yahoo.com. phone no: 08037064597. 1 united nations convention on the recognition and enforcement of foreign arbitral awards (new york convention), article vii (2). 2no. 23-7016. 3ibid. mailto:ikeodionu@yahoo.com odionu: are states ‘persons’ for the purposes of the new york convention?: the ruling of the united states court of appeals for the dc circuit in zhongshan fucheng industrial investment co. ltd v federal republic of nigeria (no. 23-7016) in view 98 | p a g e in the united kingdom. the arbitration was conducted under the china-nigeria bilateral investment treaty (bit) of 2001 by which nigeria undertook to protect investments by chinese companies in nigeria, among other things. in 2007, ogun state of nigeria contracted with zhongshan to develop the ogun guangdong free trade zone. zhongshan claimed to have invested millions of dollars and resources to develop the park. following springs of misunderstanding, ogun state eventually terminated the contract in 2016 and threatened the officers of zhongshan with eviction. ogun state later arrested two executives of zhongshan for ‘breach of trust’. nigerian federal police also arrested one zhongshan official and detained him for ten days under deplorable conditions. all the efforts zhongshan made to ventilate their right through the nigerian courts failed. consequently, in august 2018, zhongshan initiated arbitration proceeding against nigeria pursuant to article 9 of the china-nigeria bit which nigeria willingly participated in. the arbitral tribunal eventually in 2021 made a final award against nigeria and awarded usd 55.6 million, moral damages along with interest, legal and arbitral fees. with nigeria failing to pay these sums of money, zhongshan brought an action in the united states district court for the district of columbia4. nigeria moved to dismiss the case for lack of subject-matter jurisdiction and personal jurisdiction on the ground of immunity. nigeria’s motion for dismissal was refused by the district court which held that the final award was governed by the new york convention and therefore was within the united states’ foreign sovereign immunities act (fsia)5 arbitration exception. nigeria appealed against this ruling to the united states court of appeals for the district of columbia circuit. by a split decision of 2:1, the united states court of appeals for the district of columbia circuit upheld the decision of the district court. both the majority decision and the dissenting view extensively referred to the travaux preparatoires of the new york convention and case law to drive home their points but the travaux preparatoires of the new york convention is not conclusive on when states in their sovereign capacity is included in the definition of ‘persons’. nigeria’s fault in this case revolved around her failure to uphold the terms of the bit with china by failing to protect the chinese investor, zhongshan. this deals with nigeria’s sovereign act under public international law. nigeria is not involved in the contract for the construction of the free trade zone in ogun and so her actions or inactions over this matter did not involve private or commercial acts of nigeria for which immunity could be lifted. therefore, a finding that the use of ‘persons’ in the new york convention does not include a state acting in her sovereign capacity will automatically clothe nigeria with sovereign immunity in the case with zhongshan. the majority decision the majority decision in this case read by judge millett ruled that under the new york convention ‘the term ‘persons’ includes a foreign state that has entered into a bilateral investment treaty under which it assumes treaty obligations owed to third parties that are connected to commerce.’6 the majority decision cited a number of cases to buttress the point that arbitral awards under the new york convention has been enforced against foreign states charged with breach of investment and commercial treaty obligations.7 the authorities cited by the majority decision did not directly address the issue of whether the sovereign act of a state is covered by the new york convention. nigeria’s argument here is that a sovereign can be classified as a ‘person’ under the new york convention only when it engages in private activity and not when it acts solely as a sovereign as was the case in the zhongshan matter. the majority decision refuted this argument first on the ground that there is no basis for the ‘private-act limitation’ under the new york convention. to further buttress this point, the majority decision referred to report of the comm. on the enf’t of int’l arbitral awards8 and restatement (third) of the foreign relations law of the u.s., part ii introductory note9. the majority decision stated that commercial-activity limitation is expressly provided for in the new york convention by virtue of the commercial reservation stipulated under article 1 (3) of the new york convention. nigeria’s further argument was that the new york convention applied only to contract claims and not to treaty claims against sovereigns. this was also rejected by the majority opinion on the ground of what it called ‘the common practice of confirming arbitral awards’ on the basis of ‘a sovereign state’s violation of a treaty created under public international law’. nigeria’s further argument that the immunity exception under the united states’ foreign sovereign immunities act does not apply because the new york convention does not govern arbitral awards against sovereigns for the violation of treaties or public international law was equally rejected. the majority decision, however, did not consider the effect of immunity on the sovereign acts of a state. on the other hand, the dissenting view read by judge katsas asserted that reading the text of the new york convention without the 4 no. 1: 22-cv-00170 5 public law 94-583-oct. 21, 1976. 6 zhongshan fucheng industrial investment co ltd v federal republic of nigeria no. 23-7016, p 19. 7 tatneft v ukraine, 21 f.4th 829, 832-834 (d.c. cir 2021); chevron corp., 795 f 3d at 202-203; olin holdings ltd v state of libya, 73 f.4th 92, 96-101 (2d cir. 2023); schneider v kingdom of thailand, 688 f. 3d 68, 70071 (2d cir. 2012; bg group, 572 u.s. at 28-31. 8 24, u.n. doc. e/ac.42/4 (mar. 21, 1955) (‘1955 report’). 9 (am.l. inst. 1987. african customary and religious law review (acarelar) 5 (2024) 99 | p a g e private-act limitation would entail that foreign states would have no immunity for their sovereign acts. in response to this, the majority opinion stated that the essential attribute of sovereign immunity ‘is foreign states’ ability voluntarily to consent to a suit or proceeding’. the majority decision, therefore, held that by agreeing to arbitrate this dispute, nigeria no longer had any immunity to this lawsuit.10 the dissenting view the dissenting opinion read by judge katsas found that since the private acts of ogun state could not be attributed to nigeria, the award could be said to have arisen out of nigeria’s sovereign acts which was governed by public international law. this now boils down to the question of whether the new york convention applies to awards made on sovereign acts, that is, whether the use of the word ‘persons’ in the convention includes states acting in their sovereign capacity under public law. the dissenting view referred to some old authorities made before the new york convention that established that the word ‘persons’ did not include the sovereign11 as well as subsequent authorities to that effect.12 the dissenting view, however, noted that there was no hard and fast rule about excluding sovereigns from the meaning of ‘persons’. to this end, the dissenting view stated that the presumption against including sovereigns as a ‘person’ was strongest for official acts13, and that in contrast, whenever the sovereign acted in private capacity, the word ‘person’ was more likely to include sovereigns.14 to further illustrate that courts sometimes ‘construe words like ‘person’ to cover sovereigns acting in proprietary capacity but not in a sovereign capacity’, the dissenting view referred to the case law where the united states’ supreme court held that states were regarded as ‘persons’ under the sherman act when buying goods,15 but not regarded as ‘persons’ under the same act when acting as regulators16 or when wielding state powers.17 regarding sovereign immunity defence, the dissenting view traced the history of immunity claim from the absolute immunity theory which proclaims that sovereigns should be immune from the jurisdiction of domestic courts for all of its acts, whether public or private.18 the dissenting view noted that even though the absolute immunity had over the years been diluted by the restrictive immunity in order to lift the immunity of the sovereign for its commercial activities, when the new york convention was drafted, no one suggested that states should have no immunity at all. therefore, the mere use of the word ‘persons’ could not, according to the dissenting view, ‘be deemed to reach the government acts of foreign sovereigns’. the dissenting view further stated that applying the new york convention to disputes between private parties and sovereigns under public law not only would eliminate immunity protections but also ‘undercut espousal requirements’. in international law, diplomatic protection or diplomatic espousal entitles one state to take diplomatic or other actions (espouse a claim) against another state on behalf of its national whose rights and interests have been injured by that other state. the only exception to espousal that allows private individuals to raise international claims against the offending sovereigns is only when the sovereign itself has agreed to engage directly with the aggrieved individual.19 the dissenting view stated that disputes under the bit or multilateral investment treaties were not part of this exception. the dissenting view further stated that nigeria’s consent to arbitrate directly with chinese investors under article of the bit did not entail consent to enforcement in a domestic court and that consent to the enforcement of an award under article 9 (6) under the bit meant enforcement through diplomatic processes or international tribunals. 3. travaux preparatoires of the new york convention both the majority decision and the dissenting view in the zhongshan fucheng industrial investment co ltd v federal republic of nigeria under reference made extensive references to the drafting history of the new york convention in support of their positions. the dissenting view first found support in the report of the committee on the enforcement of international arbitral awards20. the dissenting view noted that the drafting committee decided to replace ‘international’ in the name of the new york convention with ‘foreign’ to read ‘convention on the recognition and enforcement of foreign arbitral award’ instead of ‘convention on the recognition and enforcement of international arbitral award’. the reason for this change was that ‘international’ would suggest state-to-state arbitrations which is 10 zhongshan op cit p. 22 11united states v united mine workers of america, 330 u.s. 258 (1947); united states v cooper corp., 312 u.s. 600, 603 05 (1941; united states v fox, 94 u.s. 315, 321 12 return mail, inc. v usps, 587 u.s. 618, 626-27 (2019); vermont agency of nat. res. v united states ex rel. stevens, 529 u.s. 765, 780-81 (2000); will v mich. dep’t of state police, 491 u.s. 58, 64 (1989). 13 georgia v evans, 316 u.s. 159, 161 -62 (1942); california v united states, 320 u.s. 577, 585-86 (1944). 14 parker v brown, 317 u.s. 341, 351-52 (1943); wilson v omaha indian tribe, 442 u.s. 653, 667 (1979); united states v knight, 39 u.s. (14 pet.) 301, 315 (1840). 15 evans, 316 u.s. at 161-62. 16 parker, 317 u.s. at 351-52. 17 bates v state bar, 433 u.s. 350, 360 (1977). see also goldfarb v va. state bar, 421 u.s. 773, 790-92 (1975); jefferson cnty. pharm. ass’n v abbott lab’ys, 460 u.s. 150, 153-154 (1983); will, 491 u.s. at 64 n.5. 18 the schooner exch. v mcfaddon, 11 u.s. (7 cranch) 11, 116, 136-37 (1812). 19 philipp 592 u.s. at 177-78 20 u.n. doc. e/ac.42/4 (mar.21, 1955) (drafting committee report), at 2. odionu: are states ‘persons’ for the purposes of the new york convention?: the ruling of the united states court of appeals for the dc circuit in zhongshan fucheng industrial investment co. ltd v federal republic of nigeria (no. 23-7016) in view 100 | p a g e clearly not the subject of the new york convention. to this end, according to the dissenting view, the committee explained that the convention ‘does not deal with arbitration between states, but deals with the recognition and enforcement in one country of arbitral awards made in one country’. the dissenting view further referred to the position of the belgium representative in the drafting committee who opined that the convention ‘should expressly provide that public enterprises and public utilities should be deemed to be legal persons… if their activities were governed by private law’.21 the drafting committee rejected the belgian proposal as being ‘superfluous’ but agreed that ‘reference in its report would suffice’. the dissenting view further referred to the view of switzerland that the new york convention covered ‘international awards in private law’, but not ‘international awards in public law’.22 the dissenting view also referred to the expression of concern by the italian representative that the reference to ‘disputes between legal persons’ could be misconstrued to cover ‘a dispute between states,’23 however, the president of the conference at which the convention was finalized responded that the drafting committee ‘had no such intention when it prepared the draft convention’. finally, the dissenting view pointed out the comment by the representative of the united states that who highlighted the importance of the new york convention to the efficient settlement of ‘private disputes arising out of international trade.’24according to the dissenting view, this suggested that there was no extension to disputes under public international law. on the other hand, the majority decision referred to a number of statements from a 1956 report on an early draft of the new york convention as follows: since the term ‘legal persons’ includes states, the draft convention seems admittedly to cover arbitral wards [sic] made in their favour or against them in cases of disputes with subjects of private law. nevertheless, it would be desirable to provide expressly that the convention is also applicable in cases in which corporate bodies under public law, and particularly states, in their capacity as entities having rights and duties under private law, have entered into an arbitration convention for the purpose of the settlement of disputes25 the majority decision also noted that the same report equally contains another statement from the society of comparative legislation supporting their view as follows: the following words should be added after the words ‘persons whether physical or legal’ at the end of paragraph 1: the expression to include states, public bodies and undertakings (collectivites publiques), public establishments and establishments serving the public interest, on the condition that the said differences arose out of a commercial contract or a private business operation (acte de gestion privee).26 the above excerpts of the report by the secretary general are not included in the final text of the new york convention. the statement from the society of comparative legislation above is qualified by the condition that states, public bodies and undertakings (collectivites publiques), public establishments and establishments serving the public interest as mentioned in the statement can only qualify as a ‘person’ if the differences arose out of a commercial contract or a private business operation. this suggests that states only qualify as ‘persons’ for the purposes of the new york convention only for their private and commercial acts and never for their sovereign acts. as can be seen, the travaux preparatoires is not conclusive on the question whether ‘person’ in the new york convention includes a state in its sovereign capacity, but there seems to be more compelling evidence that the general intendment would be to exclude states acting in their sovereign capacity which is governed by public international law. the importance of travaux preparatoires in interpreting a convention cannot be neglected because it offers clues on the general intendment behind the making of the convention. courts have frequently relied on it for treaty interpretation even as can be seen in this case. 4. analytical overview of the majority decision and the dissenting view for a start, the arbitration in this case was held under the china-nigeria bit. nigeria as a sovereign did not deal directly with zhongshan even though it undertook to protect investments by chinese companies under the bit. in this regard, this dispute arose primarily from the breach of nigeria’s treaty obligation to china under the china-nigeria bit to protect chinese investors in nigeria. this primarily falls within the realm of public international law. so, the primary question to be considered in this case is whether a dispute between two sovereigns which is governed by public international law falls under the purview of new york convention. again. another question is whether the new york 21 ibid, p. 7. 22 u.n. secretary-general, recognition and enforcement of foreign arbitral awards, at annex 1, 8-9, u.n. doc. e/2822 (jan. 31, 1956) (secretary-general report). 23 u.n. conf. on int’l com. arb., summary record of the sixteenth meeting, at 5, u.n. doc. e/conf.26/sr.16 (june 3, 1958). 24 u.n. conf. on int’l com. arb., summary record of the second meeting, at 8, u.n. doc. e/conf.26/sr. 2 (may 21, 1958). 25 report by the secretary-general on the recognition and enforcement of foreign arbitral awards, at annex i, ii, u.n. doc. e/2822 (jan. 31, 1956). 26 ibid, id at annex ii, 9; see id at annex ii, 10. african customary and religious law review (acarelar) 5 (2024) 101 | p a g e convention operates to exclude immunity for the sovereign acts of a state. the answers to both questions should be in the negative. the dissenting view in this case is more compelling in the above regards. the case has to be viewed as springing from an alleged violation of treaty obligation nigeria owes to china. this cannot be pushed to the extent of stripping nigeria of her sovereign rights over a third party which nigeria did not directly deal with. again, immunity is a different subjectmatter that is treated separately in its peculiar category. therefore, it will be incongruous to side-step the immunity of a state for sovereign acts under the new york convention. judge katsas who gave the dissenting view also made a number of references to other commentaries to support his dissenting view. he referred to the restatement (third) of the foreign relations law of the united states27, which states that ‘ordinarily, arbitration of a controversy of a public international law character, such as … a dispute about the interpretation of or performance under an international agreement…, is not subject to the new york convention…’ he also referred to the international chamber of commerce’s guide to the interpretation of the 1958 new york convention: a handbook for judges28 which states that ‘the expression of ‘persons, whether physical of legal’ in article 1 (1) of the convention is generally deemed to include public law entities entering into commercial contracts with private persons. courts … frequently invoke the distinction between acta jure gestionis… and acta jure imperii…’ finally, judge katsas referred to the opinion of sornarajah to the effect that ‘the new york convention was not designed for enforcement of arbitral awards against state parties…the fact that a dispute was caused by a sovereign act, usually an act of nationalization, makes enforcement under the convention highly unlikely.’29 however, another author, berg, offered a very instructive opinion on the meaning of ‘persons’ used in article 1 (1) of the new york convention. he stated thus: it is generally accepted that the expression also embraces persons under public law. the convention is frequently applied to states and state agencies. in this field, the defence of sovereign immunity against recognition of the arbitration agreement and enforcement of the arbitral award is virtually always rejected on the basis of theories such as restrictive immunity, the waiver of immunity, the distinction between acta de jure gestionis and acta de jure imperii, the reliance on pacta sunt servanda and the creation of an ordre public reellement international.30 even though berg opined that ‘persons’ under the new york convention includes persons under public law, it is instructive to note here that berg noted the distinction between acta jure gestionis and acta jure imperii as one of the things to be considered in deciding whether or not to uphold the defence of sovereign immunity on the question of whether the word ‘persons’ under the new york convention includes a state. under the relative immunity theory, it is only for the commercial acts of a state (acta jure gestionis) that an immunity of a state can be held inapplicable and never for its sovereign acts (acta jure imperii). this, therefore, inexorably implies that the distinction between acta jure gestionis and acta jure imperii definitely has a bearing on the consideration of the definition of ‘persons’ under the new york convention as it affects a state. 5. conclusion this work traced the background of the case between the chinese company zhongshan and nigeria for which nigeria was denied immunity plea by the us court of appeals for the district of columbia circuit. the primary issue of controversy in this case which led to a split decision is whether the definition of ‘persons’ in the new york convention includes a state both for its sovereign acts and its private act. this was fully discussed in this work. this study found that the new york convention does not define the ‘persons’ used in article 1 (1) thereof. it was also found that even though the new york convention does not define the word ‘persons’, there is a consensus of opinion that ‘persons’ under the new york convention includes a state for its private acts, but there is no such consensus whether it includes a state for its sovereign act. while the majority decision in zhongshan fucheng industrial investment co. ltd v federal republic of nigeria does not draw such distinction between the private and sovereign acts of a state in treating a state as a ‘person’ under the new york convention, the dissenting view holds that such a distinction exists and that immunity defence should avail a state for its sovereign act. this work found the dissenting view more compelling considering, most especially, that the principle of sovereign immunity covers the sovereign acts of a state. it was further found that except where a state consents, the sovereign acts of a state generally enjoy sovereign immunity, but this is not so for its commercial acts. it is therefore recommended that the new york convention should be amended to include a clause that should specifically define ‘persons’ as natural and juridical persons, including a state only when acting in private or commercial capacity. 27 part iv. 5.a intro. note (am.l.inst. 1987) third restatement, 487 comt, f. 28 85 (int’l council for comm. arbitration 2011). 29 m. sornarajah, ‘the settlement of foreign investment disputes’ (2000), 309-10. 30 hanotiau & van den berg, ‘the new york convention of 1958: an overview’ (yearbook vol. xxviii 2003) pp 4-5. ubanyionwu: problems associated with substantial compliance doctrine in election petition cases in nigeria 54 | p a g e problems associated with substantial compliance doctrine in election petition cases in nigeria* abstract the substantial compliance doctrine refers to a legal principle used in nigerian election petition cases to determine whether an election should be nullified due to non-compliance with electoral laws. it holds that an election should not be invalidated if the non-compliance is not severe enough to affect the overall outcome of the election. under this doctrine, the election must have substantially complied with the relevant provisions of the electoral laws, even if there were minor irregularities. the key statute guiding this principle is section 135(1) of the electoral act1 which provides that an election shall not be liable to be invalidated by reason of non – compliance with the provisions of this act if it appears to the election tribunal or court that the election was conducted substantially in accordance with the principle of this act and that the non – compliance did not affect substantially the result of the election. while the doctrine aims to prevent unnecessary election annulments over trivial breaches, it is not without challenges or problems. the application of substantial compliance doctrine in election petitions presents several problems. these problems often involve judicial discretion, inconsistent interpretations, and potential for abuse. in this article, the writer has identified these problems. it is anticipated that this article will open flood gates of discussions on the topic. this will go a long way in strengthening our democracy. keywords: problems, substantial compliance, election petition, cases 1. introduction the doctrine of substantial compliance in nigerian election petition cases is a double-edged sword. while it prevents the invalidation of elections for minor errors, its subjective nature, lack of clear guidelines, and potential for inconsistent application create significant challenges/problems. petitioners, courts, and the electorates alike are often left in a state of uncertainty about what constitutes substantial non-compliance, leading to legal complexities and undermining the credibility of the electoral process. while the substantial compliance doctrine is a critical part of nigerian electoral law, it presents significant challenges, including ambiguity, inconsistent judicial interpretation, and a high burden of proof on petitioners. these issues can result in outcomes that undermine public trust in the fairness and transparency of elections. addressing these problems may require clearer legal definitions and more consistent application by the courts to ensure a fair balance between maintaining electoral integrity and avoiding unnecessary annulments. in this article, the writer looks at the problems associated with substantial compliance doctrine in election petition cases in nigeria. such problems like ambiguity and lack of clear definition, judicial discretion and inconsistency, uncertainty and increased litigation, potential for judicial bias, difficulty in proving substantial non – compliance, impact on electoral integrity and tension between legal formalism and practical realism were thoroughly examined. this article will open flood gates of discussions on the topic and it will go a long way in deepening our democracy. 2. meaning of election petition in nigeria an election petition is a formal legal process through which the validity of an election result can be challenged in court. under nigerian law, it provides a mechanism for aggrieved candidates or political parties to contest the conduct, results, or qualification of the winner in an election. election petitions are distinct from regular lawsuits, as they are governed by special rules, timelines, and procedures due to their critical role in safeguarding the integrity of the electoral process. in nigerian jurisprudence, election petitions serve as a vital tool in ensuring accountability and transparency in elections. grounds for filing an election petition typically include: (1) noncompliance with the electoral act: this could involve failure to adhere to election procedures, such as improper use of voting technology or irregularities in the collation of results. (2) corrupt practices: allegations of votebuying, violence, or undue influence can be raised in election petitions. (3) disqualification of a candidate: an election can be challenged if it is proven that the declared winner was not qualified to contest, based on factors such as age, citizenship, or criminal records. (4) election malpractice or rigging: election petitions can allege that the outcome was manipulated through ballot stuffing, multiple voting, or other forms of malpractice. election petitions are typically adjudicated by election petition tribunals/courts, which are established under the nigerian constitution and the electoral act. appeals from the decisions of these tribunals/courts may be taken to the court of appeal, and in some instances, the supreme court. in atiku abubakar v buhari,2 atiku abubakar of the people's democratic party (pdp) filed an election petition challenging the 2019 presidential election, which declared muhammadu buhari of the all progressives congress (apc) as the winner. atiku alleged that there were widespread irregularities and that inec’s failure to transmit results electronically violated the provisions of the *by c. j. ubanyionwu, phd, professor of law, department of international law and jurisprudence, faculty of law, chukwuemeka odumegwu ojukwu university, igbariam campus; chairman, nigerian bar association, aguata branch (2018 – 2020), tel: 08036660646, email: barcjuba@yahoo.com. 1 electoral act (no. 15 of 2022. 2(2019) lpelr-48113(sc). african customary and religious law review (acarelar) 5 (2024) 55 | p a g e electoral act. the election petition tribunal and subsequently the supreme court dismissed the petition, affirming buhari’s election and holding that the petitioner failed to provide sufficient evidence of substantial noncompliance with the law. section 132(7) of the electoral act 2022 provides that any person who is aggrieved by the outcome of an election may present a petition to an election tribunal or court within 21 days after the date of the declaration of the result of the election. see also buhari v inec3 and wike v peterside.4 section 134 of the electoral act 2022 outlines the grounds upon which an election may be challenged through a petition, including corrupt practices, non-compliance with electoral laws, and disqualification of the winner. in fayemi v oni,5 dr. kayode fayemi of the action congress of nigeria (acn) challenged the declaration of segun oni of the people's democratic party (pdp) as the winner of the 2007 ekiti state governorship election. fayemi filed an election petition alleging that the election was marred by widespread irregularities, vote manipulation, and non-compliance with electoral laws. the election petition tribunal ruled in favour of fayemi, annulling oni’s election. this judgment was upheld by the court of appeal, which declared fayemi the duly elected governor of ekiti state. see peter obi v. inec.6 election petitions play a crucial role in nigerian electoral jurisprudence by providing a mechanism for challenging the validity of election results. 3. meaning of substantial compliance in election petition cases in nigeria substantial compliance in the context of election petitions in nigeria refers to a situation where, despite minor deviations from the procedural requirements set by law, the essence of the legal requirements is met in a way that does not undermine the integrity of the electoral process. the principle emphasizes that procedural irregularities or minor errors should not invalidate an election result if the essential elements of the process have been substantially followed. the principle of substantial compliance is primarily guided by the electoral act, 20227 which provides that certain defects should not invalidate election. the concept of substantial compliance in election petitions in nigeria is shaped by a combination of statutory provisions, judicial precedents, and principles of electoral law. this framework aims to ensure that minor procedural errors do not unduly disrupt the electoral process or invalidate an election result if the core requirements have been substantially met. the focus on substantial compliance emerges from judicial interpretations rather than a direct statutory provision. 4. perspectives of substantial compliance the doctrine of substantial compliance is aimed to balance between technical breaches of electoral laws and upholding the will of the electorate where the irregularities are insignificant to the overall result. the theories of doctrine of substantial compliance in nigerian electoral process are as follows: substantial compliance the doctrine of substantial compliance is rooted in the idea that elections are primarily about the expression of the will of the people. as long as the core objective of an election, that is, the reflection of the voters' will, is met, the courts may overlook minor procedural irregularities. this theory promotes electoral stability by ensuring that not every procedural flaw results in the invalidation of the election. in buhari v inec8 general muhammadu buhari, the presidential candidate, challenged the 2007 election results, alleging massive irregularities. the supreme court upheld the election, stating that there was substantial compliance with the electoral act 2006 despite some irregularities. the court held that the petitioner must prove not just that irregularities occurred, but that they were substantial enough to have affected the result of the election. the mere existence of irregularities was insufficient to overturn an election. in this case, the doctrine of substantial compliance was affirmed by the court as essential for the stability of elections, ensuring that only significant breaches lead to nullification. electoral integrity this theory posits that substantial compliance is necessary to uphold the integrity of elections. it emphasizes that procedural adherence guarantees fairness but allows flexibility for minor deviations that do not undermine the overall election result. in atiku abubakar v inec,9 the petitioner, atiku abubakar, challenged the 2019 presidential election, alleging widespread non-compliance with the electoral act, particularly concerning the transmission of results electronically. the court ruled that despite some irregularities, the election was conducted in substantial compliance with the law, and the irregularities did not substantially affect the outcome. the court reaffirmed the need to establish that the non-compliance was of such magnitude that it affected the result. the mere presence of irregularities or procedural flaws was not enough. the judgment in this case demonstrates the importance of balancing electoral integrity with practical flexibility, ensuring that technicalities do not nullify the genuine expression of voters' will. 3 (2008) 19 nwlr (pt 1120) 246. 4 (2015) 17 nwlr (pt 1485) 209. 5(2010) 17 nwlr (pt 1222) 326. 6 (2007) 11 nwlr (pt 1046) 565. 7 see section 135 of the electoral act (no. 15 of 2022). 8 (2019) 8 nwlr (pt 1674) 217. 9 (2019) 5 nwlr (pt 1670) 1. ubanyionwu: problems associated with substantial compliance doctrine in election petition cases in nigeria 56 | p a g e materiality this theory emphasizes the materiality of the non-compliance. it asks whether the irregularity materially affected the result of the election. courts focus on the outcome, and where the irregularities are proven to be minor or immaterial to the result, the election stands. in wike v peterside,10 nyesom wike, the governor of rivers state, was challenged by dakuku peterside over alleged widespread violence, ballot snatching, and voter intimidation in the 2015 gubernatorial election. the tribunal annulled the election, but the supreme court reversed this decision, holding that the petitioner failed to prove that the irregularities affected the result. the supreme court held that an election should not be invalidated for every irregularity. the petitioner must show that the irregularities were so widespread that they materially affected the outcome. the decision stresses the materiality of irregularities, reinforcing that only significant breaches impacting the results can justify nullification. non-punitive approach this theory suggests that the substantial compliance doctrine prevents the court from adopting a punitive approach to election petitions. rather than focusing on penalizing every breach of procedure, the court should focus on whether justice is done, that is, whether the election outcome truly reflects the will of the electorates. in oshiomhole v inec,11 adams oshiomhole challenged the result of the 2007 edo state gubernatorial election, citing widespread rigging and irregularities. the tribunal found in his favour, and the court of appeal affirmed this, holding that the non-compliance with the electoral law was substantial enough to have affected the outcome. the court held that the purpose of electoral law is not punitive but corrective. thus, only when non-compliance substantially affects the result should it lead to the annulment of the election. this judgment illustrates the nonpunitive perspective, affirming that courts should not annul elections based on procedural irregularities unless the breach distorts the electoral outcome. voter representation this theory is based on the understanding that elections are a means to represent the will of the people, and the substantial compliance doctrine ensures that minor irregularities do not obstruct this representation. it focuses on the fairness and transparency of the overall process. in inec v oguebego,12 there was a dispute regarding the authenticity of the list of candidates submitted by political parties. the supreme court held that where the process allowed the electorates to express their will, even if there were disputes over party nominations, the election result should stand unless there was proof of significant non-compliance that affected the outcome. the supreme court reinforced that the primary concern of electoral laws is to reflect the will of the electorates and that minor irregularities in the process of candidate nomination did not affect the expression of voters' will. this case highlights the significance of voter representation, underscoring that procedural flaws that do not distort the electorate’s intent should not invalidate elections. 5. history of substantial compliance in electoral process in nigeria below is an outline of its historical evolution. early development and the pre-independence era before nigeria gained independence in 1960, the country operated under a colonial system, with elections largely conducted under british electoral laws. the idea of strict compliance with electoral procedures was predominant during this time. however, there was no formal doctrine of substantial compliance, and any significant breach of procedure could lead to the annulment of elections. before independence, nigeria followed strict legal formalism, with little room for flexible interpretations such as substantial compliance in electoral disputes. post-independence era and the emergence of substantial compliance after independence, nigeria adopted its own constitution and electoral laws, which gradually moved away from rigid adherence to technical compliance. the focus shifted towards ensuring that elections reflected the will of the people, even if minor irregularities occurred. this era saw the first signs of the substantial compliance doctrine taking shape. in awolowo v shagari,13 chief obafemi awolowo challenged the election of shehu shagari as president of nigeria in 1979, arguing that shagari did not meet the constitutional requirement of securing onequarter of the votes in two-thirds of nigeria’s then 19 states. the supreme court ruled that while there were irregularities, they did not substantially affect the outcome of the election, thus affirming shagari’s victory. this landmark case marked the beginning of the substantial compliance doctrine, as the court moved away from strict legal formalism and began emphasizing the overall integrity of the electoral process over technical breaches. 10 (2016) 7 nwlr (pt 1512) 452. 11 (2009) 4 nwlr (pt 1132) 607. 12 (2015) 18 nwlr (pt 1491) 273. 13 (1979) 6-9 sc 51. african customary and religious law review (acarelar) 5 (2024) 57 | p a g e doctrine of substantial compliance gains prominence in the 1999 democratic transition, following years of military rule, nigeria’s electoral system underwent significant reforms. the 1999 constitution14 and the electoral act 2002 were introduced to guide elections. the doctrine of substantial compliance began to feature more prominently in judicial decisions as courts were tasked with interpreting these new laws in the context of electoral disputes. in buhari v obasanjo,15 muhammadu buhari, the presidential candidate of the all nigeria peoples party (anpp), challenged the election of president olusegun obasanjo in the 2003 election, alleging widespread irregularities. the supreme court upheld obasanjo’s election, holding that while there were irregularities, they did not substantially affect the overall outcome. this case solidified the substantial compliance doctrine, as the court held that only irregularities that significantly impacted the election results could warrant nullification, emphasizing the will of the electorates over procedural defects. refinement of the doctrine in the electoral act 2010 with the introduction of the electoral act 2010, the substantial compliance doctrine was given a clearer statutory basis. the act specified that an election would only be invalidated if non-compliance with the law substantially affected the result. this marked a significant turning point in the legal treatment of electoral disputes. section 139(1)16 provides that no election shall be invalidated by reason of non-compliance with the electoral act unless it is proven that such non-compliance substantially affected the result of the election. the inclusion of this provision codified the substantial compliance doctrine, shifting the burden of proof to the petitioner to demonstrate that irregularities materially impacted the election. post-2010 period: greater reliance on substantial compliance following the 2010 electoral act amendment, courts increasingly relied on the substantial compliance doctrine to adjudicate electoral disputes. the doctrine became a safeguard against annulling elections over minor procedural errors, ensuring the stability of the political process. in oshiomhole v inec,17 adams oshiomhole challenged the 2007 edo state gubernatorial election, alleging widespread rigging. the court of appeal annulled the election, finding that the irregularities were substantial enough to affect the outcome. oshiomhole was declared the winner after a re-run election. this case exemplifies the application of substantial compliance, as the court acknowledged that not all irregularities warrant annulment but determined that the irregularities in this case were substantial. modern application: substantial compliance and the 2019 general elections the 2019 general elections saw further reliance on the doctrine of substantial compliance, particularly in the presidential election petitions. courts used the doctrine to uphold the results of elections despite allegations of procedural breaches, focusing on whether such breaches affected the outcome. in atiku abubakar v inec,18 atiku abubakar challenged the victory of president muhammadu buhari in the 2019 election, alleging irregularities such as failure to electronically transmit results and voter suppression. the court held that while there were irregularities, they did not substantially affect the overall result. this case reaffirms the court’s reliance on substantial compliance, as it dismissed the petition on the grounds that the irregularities cited were not significant enough to alter the election outcome. recent legislative reforms: electoral act 2022 the enactment of the electoral act 2022 introduced several reforms aimed at addressing issues in the electoral process, including electronic transmission of results and improved safeguards against irregularities. the doctrine of substantial compliance continues to be a key aspect of resolving electoral disputes, though recent legal reforms aim to reduce the occurrence of irregularities in the first place. section 13419 emphasizes that an election will only be invalidated if the petitioner proves non-compliance with the law and demonstrates that such non-compliance substantially affected the result of the election. it also introduces new guidelines for the conduct of elections and transmission of results, aiming to minimize the likelihood of procedural errors. the 2022 electoral act continues to uphold the doctrine of substantial compliance, but with a stronger emphasis on technological transparency and procedural integrity, reflecting the evolving nature of electoral processes in nigeria. the substantial compliance doctrine continues to be a crucial tool in preserving the integrity of elections while maintaining stability in governance, with courts applying it to ensure that electoral outcomes reflect the will of the electorate despite minor irregularities. 14 constitution of the federal republic of nigeria 1999 (as amended). 15 (2005) 2 nwlr (pt 910) 241. 16 electoral act 2010 (as amended). 17 (2009) 4 nwlr (pt 1132) 607. 18 (2019) 5 nwlr (pt 1674) 217. 19electoral act 2022. ubanyionwu: problems associated with substantial compliance doctrine in election petition cases in nigeria 58 | p a g e 6. problems associated with the substantial compliance doctrine in nigeria ambiguity in the definition of substantial compliance one of the most significant issues with substantial compliance doctrine is the lack of a clear-cut definition of what constitutes ‘substantial compliance.’ the term is inherently vague and allows for wide judicial discretion, leading to inconsistent interpretations and unpredictable outcomes in election petition cases. in buhari v inec,20 muhammadu buhari challenged the 2007 presidential election, alleging widespread irregularities and noncompliance with the electoral act. the supreme court held that while there were irregularities, they did not substantially affect the outcome of the election. the ambiguity surrounding ‘substantial’ non-compliance was a key factor in the court’s ruling. buhari contended that the conduct of the election by the independent national electoral commission (inec) was marred by gross irregularities, including inflation of votes in some regions and the failure to use appropriate electoral materials. however, the court maintained that the irregularities did not significantly alter the overall result. judicial discretion and inconsistency the doctrine gives tribunals and courts wide latitude in determining what constitutes substantial compliance. this often leads to inconsistency in rulings, even in similar cases, resulting in an unpredictable legal landscape. in peter obi v inec,21 the petitioner successfully argued that non-compliance with the electoral act in the anambra state gubernatorial election affected the outcome. the election was annulled due to widespread irregularities, including missing election materials. peter obi, contesting for governor of anambra state, argued that there was substantial non-compliance in the conduct of the election, as inec failed to ensure that elections were held in several constituencies. the court ruled in his favour, declaring the election invalid. also, in wike v peterside,22 the election of nyesom wike as governor of rivers state was annulled by the tribunal due to non-compliance with the use of card readers. however, the court of appeal and the supreme court reinstated the election, ruling that non-compliance with card reader guidelines did not substantially affect the outcome. the uncertainty regarding what constitutes ‘substantial non-compliance’ has led to a rise in election petition cases. many candidates feel compelled to challenge election results, believing that they have a chance to convince the court that the irregularities affected the outcome of the elections. in ojukwu v yar’adua,23 dim chukwuemeka ojukwu filed a petition challenging the outcome of the 2007 presidential election, alleging widespread electoral malpractice. however, the supreme court held that the irregularities were not substantial enough to warrant the annulment of the election. ojukwu alleged that the election was fraught with irregularities, such as ballot stuffing and falsification of results. however, the court found that while there were infractions, they did not materially affect the outcome of the election. burden of proof on petitioners the burden of proving substantial non-compliance rests heavily on the petitioner. this requires significant resources and evidence, which many petitioners lack, especially in cases involving widespread or systemic irregularities. in ngige v obi,24 chris ngige contested the anambra state gubernatorial election, alleging substantial non-compliance. the court ruled in favour of peter obi, who presented sufficient evidence to show that the irregularities affected the outcome. peter obi was able to provide detailed evidence of missing ballots, election materials, and voter suppression in several regions, leading to the court's conclusion that the irregularities were substantial. also, buhari v obasanjo25 is another example where the petitioner, buhari, was unable to present sufficient evidence to prove that the alleged non-compliance substantially affected the election. potential for judicial bias the wide latitude of discretion afforded by the doctrine can lead to allegations of judicial bias or political interference, particularly in high-profile election cases involving prominent political actors. in awolowo v shagari,26 chief obafemi awolowo challenged the election of shehu shagari, alleging non-compliance with electoral laws. the supreme court ruled in favour of shagari, a decision that was widely criticized as being politically motivated. awolowo argued that shagari’s election was marred by irregularities, including falsification of results. despite evidence of these irregularities, the court ruled that they did not affect the outcome and upheld shagari's victory. 20 (2008) 19 nwlr (pt 1120) 246. 21 (2007) 11 nwlr (pt 1046) 565. 22 (2015) 7 nwlr (pt 1483) 533. 23 (2008) 12 nwlr (pt 1049) 507. 24 (2006) 14 nwlr (pt 999) 1. 25 (2003) 17 nwlr (pt 850) 587. 26 (1979) 6-9 sc 51. african customary and religious law review (acarelar) 5 (2024) 59 | p a g e undermining electoral integrity the doctrine can sometimes undermine the integrity of elections by allowing results marred by significant irregularities to stand. this can erode public trust in the electoral process, particularly when courts uphold elections despite substantial evidence of malpractice. see wike v peterside27 nyesom wike's election as governor of rivers state was challenged by dakuku peterside, who alleged widespread violence and voter intimidation. while the election tribunal annulled the election, the supreme court reversed the decision, ruling that the irregularities were not substantial enough to affect the outcome. this case demonstrates the ongoing challenges in applying the substantial compliance doctrine, particularly when the judiciary is faced with significant but arguably not ‘substantial’ irregularities. 7. factors behind the problems associated with the substantial compliance doctrine in election petition cases in nigeria the substantial compliance doctrine is rooted in the idea of balancing procedural technicalities with the overall fairness of elections. the central theory is that elections should not be annulled based on minor infractions unless those infractions significantly affect the outcome. however, various theories highlight the problems associated with this doctrine in nigerian election petitions. the theories are: procedural justice procedural justice emphasizes fairness in the processes leading to an outcome. the substantial compliance doctrine attempts to ensure that elections are evaluated based on the overall process rather than specific procedural breaches. however, this raises the problem of inconsistency because different courts may interpret what constitutes ‘substantial’ compliance differently. in aregbesola v oyinlola,28 the court of appeal found that there was non-compliance with the electoral act in osun state’s 2007 gubernatorial election, specifically in relation to issues such as ballot stuffing and failure to follow due procedure. the court determined that these breaches were substantial enough to invalidate the election. the key issue was whether these irregularities were sufficient to affect the election outcome, and the court held that they were. in pdp v inec,29 where the issue of non-compliance with ballot procedures was deemed significant but not enough to warrant the annulment of the election. section 135(1) of the electoral act, 2022, states that an election result shall not be invalidated unless it is proven that noncompliance affected the result of the election. section 135(1) of the electoral act, 2022 emphasizes the need for proof that non-compliance materially affected the election outcome. legal realism legal realism posits that judicial decisions are often influenced by the broader social, political, and moral contexts rather than strict legal rules. the broad judicial discretion allowed under the substantial compliance doctrine can lead to subjective interpretations, causing inconsistencies in rulings. this raises concerns about fairness and impartiality in politically charged cases. in buhari v obasanjo,30 muhammadu buhari challenged olusegun obasanjo’s 2003 presidential election victory, citing substantial non-compliance with the electoral act. the supreme court upheld obasanjo’s victory, stating that although there were irregularities, they were not enough to affect the overall result. the court placed significant emphasis on the doctrine of substantial compliance, despite allegations of widespread irregularities. in wike v peterside31 the court of appeal nullified governor nyesom wike’s election in rivers state due to violence and massive irregularities, later reversed by the supreme court under the substantial compliance doctrine. section 135(1) of the electoral act 202232 requires that the petitioner must show that the non-compliance significantly affected the election result. the discretionary nature of judicial interpretation in cases like buhari v obasanjo33 reflects how substantial compliance can be inconsistently applied based on external factors, highlighting a key issue with the doctrine. democratic legitimacy democratic legitimacy asserts that the validity of elections rests on the public’s perception that they are free and fair. the substantial compliance doctrine, when applied leniently, can undermine this perception if it allows elections tainted by irregularities to stand. in peter obi v. inec,34 peter obi challenged the election results for the anambra governorship, arguing that substantial non-compliance with the electoral act occurred. the court of appeal annulled the election due to widespread irregularities that undermined the legitimacy of the process. the court emphasized the need for elections to reflect the true will of the people and that the non-compliance was 27 supra. 28(2011) 14 nwlr (pt 1269) 353. 29 (2008) 17 nwlr (pt 1115) 206; (2008) 12 sc (pt ii) 162. 30 (2005) 13 nwlr (pt 941) 1; (2005) 18 sc (pt 1) 1. 31 supra. 32 this is in pari materia with section 139(1) of the electoral act 2010. 33 supra. 34 (2007) 11 nwlr (pt 1046) 565. ubanyionwu: problems associated with substantial compliance doctrine in election petition cases in nigeria 60 | p a g e significant enough to warrant annulment. also, in adeleke v oyetola,35where the court of appeal upheld the election result despite allegations of significant procedural breaches, citing the doctrine of substantial compliance. section 135(1) of the electoral act 2022 underlines that substantial non-compliance must affect the election result to annul an election. democratic legitimacy can be eroded when courts overlook significant irregularities under the guise of substantial compliance, as seen in cases like adeleke v oyetola.36 burden of proof this highlights the complexity and difficulty of the burden of proof placed on petitioners under the substantial compliance doctrine. the requirement for petitioners to not only show non-compliance but also prove that the non-compliance affected the result creates a legal hurdle that is often insurmountable. in atiku abubakar v inec,37 atiku abubakar contested the 2019 presidential election, citing non-compliance with the electoral act in the conduct of the election. the supreme court ruled against him, stating that he failed to meet the burden of proof to show that the irregularities substantially affected the election outcome. although there were multiple allegations of non-compliance, the petitioner could not provide sufficient evidence to meet the burden of proof required by the substantial compliance doctrine. also, in fayemi v oni,38 where the petitioner's ability to meet the burden of proof on substantial non-compliance led to the annulment of the election. section 135(1) of the electoral act 2022 requires petitioners to prove that non-compliance substantially affected the election. atiku v inec39 reflects how the heavy burden of proof on petitioners can become a barrier to achieving justice in election petitions under the substantial compliance doctrine. electoral integrity this concerns the overall integrity of the electoral process. when the substantial compliance doctrine is applied in a way that tolerates significant procedural breaches, it raises questions about the integrity of the election process itself. it can result in public distrust, as citizens may feel that elections are rigged or influenced by irregularities. in inec v. oshiomhole,40 the court of appeal nullified the election of oserheimen osunbor and declared adams oshiomhole as the rightful winner of the edo state governorship election. the court found that there was substantial non-compliance with the electoral act, including widespread violence and ballot manipulation. the court emphasized that electoral integrity could not be upheld if such widespread irregularities were overlooked. in agbaje v ambode,41where the petitioner's challenge was dismissed despite allegations of procedural noncompliance, which the court deemed not substantial enough. section 135(1) of the electoral act guides the determination of whether non-compliance affects electoral integrity. the theory of electoral integrity underscores cases like inec v oshiomhole,42 where the annulment was seen as essential to preserving public trust in the process. 8. some notable decided cases based on the doctrine of substantial compliance in nigerian election petition cases in recent years, the doctrine has been criticized for creating inconsistencies in judicial decisions. the lack of a clear definition of what constitutes ‘substantial’ has led to varying interpretations, which sometimes result in conflicting judgments at different levels of the judiciary.43 ogbuabor v ogbu.44 in this case the appellant challenged the election results based on irregularities in the conduct of the election. the tribunal dismissed the petition, arguing that the irregularities were minor and did not affect the overall outcome of the election. on appeal to the supreme court, the supreme court held that for an election to be invalidated on the grounds of non-compliance with the electoral act, the non-compliance must be substantial and not merely procedural. the court emphasized that substantial compliance is sufficient to uphold the election result if the core requirements were met. dare v afolabi.45 the petitioner in this case alleged that the election process was marred by procedural flaws. the tribunal found some procedural errors but ruled that these did not substantially affect the outcome of the election. on appeal to the supreme court, the supreme court affirmed the tribunal's decision, reinforcing that minor procedural errors do not automatically invalidate an election. the court emphasized that substantial compliance 35 (2015) 7 nwlr (pt 1483) 533. 36 supra. 37 supra. 38 (2010) 14 nwlr (pt 1210) 1. 39 supra. 40 (2008) 15 nwlr (pt 1109) 131. 41 (2015) 15 nwlr (pt 1481) 314. 42supra. 43 wike v peterside supra. 44(2015) lpelr-25868(sc). 45 (2018) lpelr-44359(sc). african customary and religious law review (acarelar) 5 (2024) 61 | p a g e with the electoral laws is enough to sustain an election result unless the errors are grave enough to impact the integrity of the election. ikpeazu v otti.46 the petitioner contested the election on the grounds of numerous procedural lapses, including issues with the conduct of the election and documentation. the tribunal reviewed whether these lapses were substantial enough to affect the result of the election. the supreme court held that while procedural errors were present, they did not constitute a substantial breach affecting the election's outcome. the court applied the principle of substantial compliance, affirming that the election result was valid because the core electoral requirements were observed. makarfi v sheriff.47 this case dealt with internal party elections where allegations of procedural deviations were made. the petitioner claimed that these deviations significantly affected the election's legitimacy. the court of appeal examined whether the deviations were substantial or merely procedural. the court of appeal upheld the election results, applying the principle of substantial compliance. the court determined that the deviations were procedural and did not impact the overall integrity of the election. the judgment reinforced that substantial compliance with procedural requirements is sufficient to validate the election. bola tinubu v olusola oke.48 the petitioner challenged the election results on grounds of procedural flaws, including issues with the recording and declaration of results. the supreme court reviewed whether these flaws were significant enough to affect the election's outcome. the supreme court upheld the election results, emphasizing that the procedural flaws were minor and did not affect the election outcome. the court applied the principle of substantial compliance, reinforcing that the election process was valid despite minor errors. the principle of substantial compliance ensures that elections are not invalidated by minor errors or procedural lapses, thus upholding the democratic process while ensuring that the core requirements are met. 9. conclusion the doctrine of substantial compliance is deemed essential in nigerian electoral jurisprudence as it upholds electoral stability while ensuring that the will of the people is respected. it reflects a balanced approach where minor irregularities do not automatically lead to the nullification of election results unless they substantially affect the outcome. this doctrine is supported by numerous case laws and statutory provisions that guide nigerian courts in election dispute resolution. the problem with this doctrine is that there is no yardstick to measure this doctrine and the politicians have utilized this loophole to perpetuate all forms of electoral malpractices including violence during elections. the doctrine unintentionally encourages electoral malpractices, undermining the overall integrity of elections and democracy in general. the doctrine equally leads to such problems like judicial discretion and inconsistency, uncertainty and increased litigation, potential for judicial bias, difficulty in proving substantial non – compliance, impact on electoral integrity and tension between legal formalism and practical realism. 46 (2016) lpelr-40484(sc). 47 (2017) lpelr-41922(ca). 48 (2022) lpelr-59470(sc). iloka: understanding the concept, history and dimensions of domestic violence against women 41 | p a g e understanding the concept, history and dimensions of domestic violence against women* abstract domestic violence has turned out to be a global concern with an alarming rate of reported cases propelled by media awareness especially through the civil society organizations. notwithstanding the foregoing, basic understanding of the totality of domestic violence against women is bereft. therefore, it was imperative for the aim of this study to espouse the basic understanding of the concept, history and dimensions of domestic violence against women. the research methodology was doctrinal approach, using analytical and descriptive research design. it was observed that a deeper understanding of the concept, history and dimensions of domestic violence against women would conscientise the victim and any concerned person to take the necessary measures against the dastardly act. the main sources of data collection were various legal literatures, both from the physical library and the e-library. the study recommended that not just the civil society organization, but every stakeholder in the academics, politics, and so on should take up the task of sensitizing households and the masses on the concept, history and dimensions of domestic violence against women. finally, this study was made to be significant to all stakeholders in human right and the vulnerable right. keywords: domestic violence, women, abuse, law 1. introduction domestic violence, also known as domestic abuse, spousal abuse, battering, family violence, and intimate partner violence, is defined as a pattern of abusive behaviours by one partner against another in an intimate relationship such as marriage, dating, family, or cohabitation. domestic violence, so defined, has many forms, including physical aggression or assault (hitting, kicking, biting, shoving, restraining, slapping, throwing objects), or threats thereof; sexual abuse; emotional abuse; controlling or domineering; intimidation; stalking; passive/covert abuse (e.g., neglect); and deprivation. alcohol consumption1 and mental illness can be co-morbid with abuse, and present additional challenges in eliminating domestic violence. awareness, perception, definition and documentation of domestic violence differs widely from country to country, and from era to era. domestic violence and abuse is not limited to obvious physical violence. domestic violence can also mean endangerment, criminal coercion, kidnapping, unlawful imprisonment, trespassing, harassment, and stalking.2 domestic violence is a type of abuse. it involves injuring someone, usually a spouse or partner, but it can also be a parent, child or other family member .it is a serious problem. it is a common source of injury. victims may suffer physical injuries such as bruises or broken bones. they may suffer emotionally from depression, anxiety or social isolation. it is hard to know exactly how common domestic violence is, because people often do not report it. there is no typical victim. it happens among people of all ages. it affects those of all levels of income and education.3a lot of issues could be said to be peculiar to women or better still, the rate at which they involve and affect women is very high in comparison to men. these issues range from violence against women, discrimination, subjugation, injustice, rape, female circumcision or female genital mutilation, prostitution, sexual abuse and slavery, widow inheritance, trafficking in women etc. these issues could be said to be a global phenomenon as they are not limited to africa alone. other continents have their own share of all these ‘crimes’ against women. domestic abuse, also known as spousal abuse, occurs when one person in an intimate relationship or marriage tries to dominate and control the other person. domestic abuse that includes physical violence is called domestic violence. domestic violence and abuses are used for one purpose and one purpose only: to gain and maintain total control over you. an abuser doesn’t ‘play fair.’ abusers use fear, guilt, shame, and intimidation to wear you down and keep you under his or her thumb. your abuser may also threaten you, hurt you, or hurt those around you. domestic violence/abuse does not discriminate. it happens among heterosexual couples and in same-sex partnerships. it occurs within all age ranges, ethnic backgrounds, and economic levels. and while women are more commonly victimized, men are also abused—especially verbally and emotionally, although sometimes even *by chinwe patricia iloka, llb, bl, llm, phd, lecturer, department of public and private law, faculty of law, chukwuemeka odumegwu ojukwu university, igbariam campus, anambra state. phone no.: 08035696281. email: chypat4@gmail.com. 1s markowitz, ‘the price of alcohol, wife abuse and husband abuse’ (2000) 2 southern economic journal, 279. 2medline plus, ‘domestic violence’ <http//www.nlm.nih.gov/medlineplus/domesticviolencehtml> accessed on 4th october , 2021. 3m smith and j segal, ‘domestic violence and abuse: signs of abuse and abusive relation’ (2012) http: //www.helpguide.org/mental/domestic violence-abuse-type-s accessed on 4th october, 2021. http://en.wikipedia.org/wiki/sexual_abuse http://en.wikipedia.org/wiki/psychological_abuse http://en.wikipedia.org/wiki/intimidation http://en.wikipedia.org/wiki/stalking http://en.wikipedia.org/wiki/neglect http://en.wikipedia.org/wiki/mental_illness http://en.wikipedia.org/wiki/co-morbid http://en.wikipedia.org/wiki/abuse african customary and religious law review (acarelar) 3 (2022) 42 | p a g e physically as well. the bottom line is that abusive behaviour is never acceptable, whether it’s coming from a man, a woman, a teenager, or an older adult. you deserve to feel valued, respected, and safe.4 2. the meaning of violence against women violence is any kind of behaviour that one person uses to control another through fear and intimidation. it includes emotional and psychological abuse, battering and sexual assault.5 however, it can be explained as: physical, sexual and psychological violence occurring in the family, community or condoned by the state, this includes wife battering /beating, sexual abuse of female children, dowry related, violence marital rape, female genital mutilation and other traditional practices that are harmful to women. it includes rape, sexual harassment at work or within educational institution, trafficking in women and forced prostitutions.6 violence against women is a term of art used to collectively refer to violent acts that are primarily or exclusively committed against women. it is not limited to physical force so as to damage or injure another. it could be physical, psychological, emotional, economic etc. and may not just be through encounter but could be structural. similar to hate crime, this type of violence (against women) targets a specific group with the victim’s gender as a primary motive. the united nations general assembly defines ‘violence against women as ‘any act of gender based violence that results in, or is likely to result in physical, sexual or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life’.7 a species of violence against women is domestic violence. concept of domestic violence this is sometimes referred to as intimate partner violence. it encompasses all acts of violence against women within the context of family or intimate relationship. women are more likely to be victimized by someone they are intimate with, thus, is commonly called ‘intimate partner violence’ or (ipv). it is an issue of increasing concern because it has a negative effect on all family members, especially children. domestic violence is not confined to anyone’s socio-economic, ethnic, religious, racial, or age group. accurate information on the extent of domestic violence is difficult to obtain because of the extensive under reporting for due to cultural restrictions and orientations, many even say nothing of it outside. women whose husbands engage in drinking, smoking and drugs are more prone to these experiences. in some homes, beating and battering of women are common occurrence just at the instance some flimsy reasons. uchem8 captured it thus: domestic violence against women and girls is only one example of women’s experiences. there are innumerable other examples of violence and injustice against women. however, the root issue is in negativity attached to female and the positivity that goes with the male in the society and the church. all other gender issues originate from this basic negative orientation towards the female and the positive stance towards the male. for instance, the female is valued less than the male. consequently, other things associated with the women are automatically considered of less value; for example, women’s work, ideas, opinions, perspective, witness, presence, contributions and achievements. the result is a tendency by men (who are not yet conscientized) to exclude women from full participation in the human enterprise.9 all forms of domestic abuse have one purpose: to gain and maintain control over the victim. abusers use many tactics to exert power over their spouse or partner: dominance, humiliation, isolation, threats, intimidation, denial and blame. 3. history of violence against women some experts believe that the history of violence against women is tied to the history of women being viewed as property and a gender role assigned to be subservient to men and also other women. this is reflected in almost all cultures and even the biblical account of creation in gen. 2:21-23 lends credence to it. thus, ‘and the lord caused a deep sleep to fall upon adam, and he slept: and he took one of his ribs, and closed up the flesh…..and the ribs, which the lord god had taken from man, made him a woman, and brought her unto the man.’10 again, 4d obioma et al, ‘women issues: violence against women in africaan exposition’ in g.u ukagba et al (eds), the kpim of feminism (trafford publishing, 2010). 5ibid. 6ibid, 330. 7genesis 2:21-22. 8r. uchem, beyond veiling: a response to the issue in women’s experience of subjugation on african christian cultures (snap press, 2005) 332. 9ibid. 10obioma (n4)330. http://en.wikipedia.org/wiki/humiliation http://en.wikipedia.org/wiki/solitude http://en.wikipedia.org/wiki/coercion http://en.wikipedia.org/wiki/intimidation http://en.wikipedia.org/wiki/denial http://en.wikipedia.org/wiki/blame iloka: understanding the concept, history and dimensions of domestic violence against women 43 | p a g e the unequal relationship between men and women in the society and even in the church gives room for this violence against women. through naturally our being male and female has no intrinsic hierarchy, what we call a woman’s place in one human culture could be man’s place in another. this shows that the orientation of treating women as such is nurtured in man, not from nature. many kinds of violations of women have one thing in common: they all originate from considering women as men’s property. this, in turn, is rooted in patriarchy. that is: the power (and rule) of the fathers; a familial, social ideological and political system in which men (by force, direct pressure, through ritual, tradition, law and language, customs, education and the division of labour) determine what part women shall or shall not play, and in which the female is everywhere subsumed under the male.11 women are erroneously required and made to depend on the male provider. religion and tradition make women to stick to their husbands and suffer in silence and to endure everything so as to save their families. it is a widely accepted view by both male and female folk alike that through the ages the lots of women in the society generally has been of living more or less in bondage. and lots of women in the society generally have been for the most part made object of discrimination and male domination in various forms in the different parts of the world. violence against women seems to be as old as humanity when her role is ‘second class’ and to serve the male folk. down through the ages women have been regarded as second class citizens. they have stereotype into roles of dependency, submission and passivity…exploited object….defined in the terms of men…..excluded from the centers of power and the decisions making processes in the society and church.12 we could therefore say that this obnoxious, oppressive and exploitative picture of women subjugation as a second class citizen and an object is behind all forms of violence against women. girls and women worldwide across lines of income, class and culture, are subjected to physical, sexual and psychological abuse. around the world, at least one in every three women has been beaten, coerced into sex or abuse in some other way-most often by someone she knows including her husband or another male family member. every continent has its share of the crimes against women and many cultures condone or at least tolerate a certain amount of violence against women. the igbo nation of nigeria is not spared of these acts of violence against women even though we have not the statistics of their occurrence and these issues are very much under reported especially, when they involve family members.13 violence or abuse ‘is not limited to a single group. it cuts across racial and economic backgrounds; it occurs in the families in every ethnic, economic, religious and educational background’. it involves all acts that result in humiliation, open ridicule and torture. because violence usually occurs in the privacy of people’s homes, it is often shrouded in silence. yet abuse, assault or murder is not less serious because they occur within the family. chinua achebe,14 in his classical book ‘things fall apart’, pictured this violence against women in igbo land as it is epitomized by how okonkwo ruled his family. he writes: ‘okonkwo ruled his household with a heavy hand. his wives, especially the youngest, lived in perpetual fear of his fiery temper, and so did his little children.’ again, okonkwo was reported to have beaten his wife ojiugo. okonkwo gave her a sound beating and left her and her only daughter weeping. 13 this was and is still the fate of women in some places today.okonkwo nearly killed the wife ojiugo when she made remark against him. when the wife who had been beaten murmured, okonkwo heard it, ran madly into his room for the loaded gun, ran out again and aimed at her as she climbed over the dwarf wall of the barn. he pressed the trigger and there was a loud report accompanied by the wail of his wife and children. he threw down the gun and jump into the barn, and there laid the woman, very much shaken and frightened but quite unhurt. he heaved a heavy sigh and went away with the gun.15 adichie,16 in her classical book ‘purple hibiscus’, demonstrated physical and psychological violence against women in igbo land as it is epitomized by how eugene achike ruled his family. she said that after lunch when everybody has gone into his or her room, swift, heavy thuds are heard from papa and mama’s bedroom. i sat down, closed my eyes, and started to count: counting made it seem not long, made it seem not bad. sometimes it was over before i even got to twenty. i was at nineteen when the sound stopped. i stepped out of my room just as jaja came out of his, we watch papa descend. mama was slung over his shoulder like the jute sacks of rice his 11ibid, 331. 12aibegbunam, ‘you can be a saint; blessed laura vicuna’ the christian outlook (n.p., march 7, 2015) 14. 13c achebe, things fall apart (heineman educational books ltd, 1958) 9. 14ibid. 15ibid, 28. 16c adichie, purple hibiscus (farafina, 2006) 33. african customary and religious law review (acarelar) 3 (2022) 44 | p a g e factory workers bought in bulk at the same border. there is blood on the floor. we cleaned up the trickle of blood, which trailed away as if someone had carried a leaking jar of red water-colour all the way down stairs. mama came home the next afternoon, her eyes were vacant like the eyes of those mad people who wandered around the road side garbage dumps in town, pulling grimy, torn canvas bags with their life fragments inside. there was an accident, the baby is gone, she said: ‘mama has been severely beaten by her husband achike because she was reluctant to visit father benedict due to poor health condition and the beating led to her miscarriage.’17 still on another occasion, the wife is the victim again. eugine reaches for a small table and breaks it on her belly. she bleeds profusely and loses a six-week old pregnancy in the end. you know that small table where we keep the family bible, nne? you father broke it on my belly. my blood finished on that floor even before he took me to st. agnes. my doctor said there was nothing he could do to save the baby. mama shook her head slowly. a thin line of tears crawled down her cheeks as though it had been a struggle for them to get out of her eyes. mama slid down to the floor. she cried for a long time. she cried until my hand, clasp in hers, felt stiff. she cried until aunty ifeoma finished cooking. she cried until she fell asleep, her head against the seat of the chair. her son jaja laid her on a mattress on the living room floor.18 kambili’s menstruation started and is giving her cramps in the stomach. mama and jaja encourage her to take conflakes and panadol tablets to relieve the pain shortly before mass. on discovering this, mama and the children receive the beatings of their life as papa rains down heavy blows on them one after the other with his belt. ‘papa was like a fulani nomad although he didnot have their spare, tall body as he swung his belt at mama, jaja and me’.19 for staying in the same room with papa-nnukwu and refusing to intimate eugene of the fact, jaja and kambili receive severe punishment from papa. this time it is neither cane nor belt. papa invites the children separately into the bathroom. papa takes a kettle of hot water and pours it on kambili’s feet. adiche vividly portrays it thus: he lowered the kettle into the tub, tilted it towards my feet. he poured the hot water on my feet, slowly, as if he were conducting an experiment and wanted to see what will happen. i saw the moist steam before i saw the water. i watched the water leave the kettle flowing almost in slow motion in an arc to my feet. the pain of contact was so pure, so scalding. i felt nothing for a second. and then i screamed. i stood in scalding tub; i was too scared to move the skin of my feet would peel off if i tried to step out of the tub. i did not realize that mama had come into the bathroom. tears were running down her face.20 when kambili is beaten to the second position at school by chinwe jideze, papa follows her to the school at the beginning of the new term, subtly threatening his daughter not to concede the first position to chinwe again. he insulted, disgraced and humiliated this girl in front of all the members of her class. the innocent kambili wanted the ground to open swallow the whole compound. this threat is psychologically etched in her mind for the rest of the term, making her discount every other matter in her life but how to get the first position back. this is a kind of psychologically violence dealt on the poor girl.21 4. dimensions of domestic violence violence against women includes threatening or actual use of physical, psychological, emotional or sexual abuse against a woman by her family members or other intimates. commonly behaviours included within the broad category of violence against women include: homicide, domestic violence, partner abuse, and psychological abuse, dating violence, same-sex violence, spousal abuse, woman battering, elder abuse, courtship violence, sexual assault, date rape, acquaintance rape, marital rape and stranger rape.things that count violence or abuse may be anyone or combination of the following: physical abuse and domestic violence physical abuse is abuse involving contact intended to cause feelings of intimidation, pain, injury, or other physical suffering or bodily harm.physical abuse includes hitting, slapping, punching, choking, pushing, burning and other types of contact that result in physical injury to the victim. physical abuse can also include behaviours such as denying the victim of medical care when needed, depriving the victim of sleep or other functions necessary to live, or forcing the victim to engage in drug/alcohol use against his/her will. if a person is suffering from any physical harm then they are experiencing physical abuse. this pain can be experienced on any level. it can also include inflicting physical injury onto other targets, such as children or pets, in order to cause psychological harm 17ibid. 18ibid, 244. 19ibid, 102. 20ibid, 192. 21ibid, 46. iloka: understanding the concept, history and dimensions of domestic violence against women 45 | p a g e to the victim.22 when people talk about domestic violence, they are often referring to the physical abuse of a spouse or intimate partner. physical abuse is the use of physical force against someone in a way that injures or endangers that person. physical assault or battering is a crime, whether it occurs inside or outside of the family. the police have the power and authority to protect you from physical attack.23physical abuses usually recurrent and escalates in both frequency and severity. although most assault on women does not result in death, they do result in physical injury and severe emotional distress. physical injuries are the most tangible manifestation of domestic violence, yet they are frequently not reported by the women and go unrecognized by the professionals who should intervene. they are often treated as a private issue. the impact of domestic violence in the sphere of total violence against women can be understood through the example that reasonable percentages of murders of women are committed by their husbands or boyfriends. studies have shown that violence is not always perpetrated as a form of physical violence but can also be psychological and verbal. in unmarried relationships this is commonly called dating violence whereas in the context of marriage it is called domestic violence. in our igbo land, many women have in one time or another been victims of beating and battering. even when these things happen in our homes and neighbourhood, we do not have statics of their occurrence as they are not reported; hence the true magnitude of the problem is hard to estimate. though, this type of violence is often portrayed as an issue within the context of heterosexual relationships, daughter-mother relationships, roommate relationships and other domestic relationships involving two women.24people who are physically abused may have frequent injuries, with the excuse of accidents,dress in clothing designed to hide bruises or scars (e.g. wearing long sleeves in the summer or sunglasses indoors) andfrequently miss work, school, orsocial occasions, without explanation. note, it is still abuse notwithstanding the fact that: (a) the incidents of physical abuse seem minor when compared to those you have read about, seen on television or heard other women talk about. there is not a ‘better’ or ‘worse’ form of physical abuse; you can be severely injured as a result of being pushed, for example. (b) the incidents of physical abuse have only occurred one or two times in the relationship. studies indicate that if your spouse/partner has injured you once, it is likely he will continue to physically assault you. (c) the physical assaults stopped when you became passive and gave up your right to express yourself as you desire, to move about freely and see others, and to make decisions. it is not a victory if you have to give up your rights as a person and a partner in exchange for not being assaulted! (d) there has not been any physical violence. many women are emotionally and verbally assaulted. this can be as equally frightening and is often more confusing to try to understand. sexual abuse and domestic violence sexual abuse, or sexual assault, represents a physical attack by the abuser that is accompanied by sexual violence when a woman is forced to have sexual intercourse with her abuser or take part in an unwanted sexual activity. it consists of a range of behaviour that may include pressured sex when the victims does not desire sex, coerced sex by manipulation or threat, physically forced sex or sexual assault accompanied by violence. victims may be force or coerced to perform a type of sex they do not desire, or at a time they do not want it. for some better victims, this sexual violation is profound and difficult to discuss. though this happens in igbo society, women rarely report or discuss it either due to shame or some think that they are to serve man’s whims.25 sexual violence at home is rampant and hardly reported. there are two types of sexual violence commonly experienced by women and girls, with particular emphasis on wife rape and incest. sexual violence has remained an issue that is largely ignored, and many women do not even know the language to describe their experiences of childhood sexual abuses, harassment and marital rape. sexual violence can no longer be seen as a crime that only occurs between strangers. it is to be noted that sexual abuse is a form of physical abuse. any situation in which you are forced into unwanted, unsafe, or degrading sexual activity is sexual abuse. forced sex, even by a spouse or intimate partner with whom you also have consensual sex, is an act of aggression and violence. furthermore, people whose partners abuse them physically and sexually are at a higher risk of being seriously injured or killed. categories of sexual abuse include: (a) use of physical force to compel a person to engage in a sexual act against his or her will, whether or not the act is completed; (b) attempted or completed sex act involving a person who is unable to understand the nature or condition of the act, unable to decline participation, or unable to communicate unwillingness to 22ibid. 23smith and segal (n 3) 2. 24obioma (n 4) 333. 25ibid. african customary and religious law review (acarelar) 3 (2022) 46 | p a g e engage in the sexual act, e.g., because of underage immaturity, illness, disability, or the influence of alcohol or other drugs, or because of intimidation or pressure. psychological abuse and domestic violence this is a type of violence that put fear, guilt, shame, low self-esteem and depression on the woman. psychological abuse of women is under estimated, trivialized and at times difficult to define. psychological abuse has been reported by abused women to be as damaging as physical battering because it impacts on the self-image of the victim. it often precedes or accompanies physical abuse, but it may occur by itself.26 emotional abuse (also called psychological abuse or mental abuse) can include humiliating the victim privately or publicly, controlling what the victim can and cannot do, withholding information from the victim, deliberately doing something to make the victim feel diminished or embarrassed, isolating the victim from friends and family, implicitly blackmailing the victim by harming others when the victim expresses independence or happiness, or denying the victim access to money or other basic resources and necessities. degradation in any form can be considered psychological abuse.27people who are psychologically abused may have very low self-esteem, even if they used to be confident, show major personality changes (e.g. an outgoing person becomes withdrawn) and are depressed, anxious, or suicidal. emotional abuse and domestic violence emotional abuse can include verbal abuse and is defined as any behaviour that threatens, intimidates, undermines the victim’s self-worth or self-esteem, or controls the victim’s freedom.28 this can include threatening the victim with injury or harm, telling the victim that they will be killed if they ever leave the relationship, and public humiliation. constant criticism, name-calling, and making statements that damage the victim’s self-esteem are also common verbal forms of emotional abuse. often perpetrators will use children to engage in emotional abuse by teaching them to harshly criticize the victim as well.29 emotional abuse includes conflicting actions or statements which are designed to confuse and create insecurity in the victim. these behaviours also lead the victims to question themselves, causing them to believe that they are making up the abuse or that the abuse is their fault. emotional abuse includes forceful efforts to isolate the victim, keeping them from contacting friends or family. this is intended to eliminate those who might try to help the victim leave the relationship and to create a lack of resources for them to rely on if they were to leave. isolation results in damaging the victim’s sense of internal strength, leaving them feeling helpless and unable to escape from the situation. people who are being emotionally abused often feel as if they do not own themselves; rather, they may feel that their significant other has nearly total control over them. women or men undergoing emotional abuse often suffer from depression, which puts them at increased risk for suicide, eating disorders, and drug and alcohol abuse. abusers are very good at controlling and manipulating their victims. people who have been emotionally abused or battered are depressed, drained, scared, ashamed, and confused. verbal abuse and domestic violence verbal abuse is a form of emotionally abusive behaviour involving the use of language. verbal abuse can also be referred to as the act of threatening. through threatening a person can blatantly say they will harm you in any way and will also be considered as abuse. verbal abuse may include aggressive actions such as name-calling, blaming, ridicule, disrespect, and criticism, but there are also less obviously aggressive forms of verbal abuse. statements that may seem benign on the surface can be thinly veiled attempts to humiliate; falsely accuse; or manipulate others to submit to undesirable behaviour, make others feel unwanted and unloved, threaten others economically, or isolate victims from support systems. the abuser may fluctuate between sudden rages and false joviality toward the victim; or may simply show a very different ‘face’ to the outside world than to the victim. while oral communication is the most common form of verbal abuse, it includes abusive communication in written form.30 this represents a method of control that may consist of verbal attacks and humiliations, including repeated verbal attacks against the victim’s worth as an individual or role as a parent, family member, co-workers, friends or community member. the verbal attacks often emphasize the victim’s vulnerabilities. in igbo land they are usually taunted for being barren or giving birth to only female children, for being single up to a certain age etc. and generally they are spoken to in very derogatory manners. misogynist in everyday speech in igbo society is so orchestrated. disdain for women in proverbs, myths and causal remarks, especially in conflict situations; ‘after all you are a woman’ ‘imagine a woman for that matter’ etc ‘a woman that urinates in stooping posture ‘31 all 26ibid. 27d follingstad, ‘defining psychological abuse of husbands towards wives: contexts, behaviours and typologies (2000) journal of interpersonal violence, (9) 891. 28ibid. 29ibid. 30ibid. 31uchem(n 8) 334. http://en.wikipedia.org/wiki/embarrassed http://en.wikipedia.org/wiki/blackmail http://en.wikipedia.org/wiki/gaslighting http://en.wikipedia.org/wiki/victim_blaming http://en.wikipedia.org/wiki/victim_blaming http://en.wikipedia.org/wiki/major_depressive_disorder http://en.wikipedia.org/wiki/suicide http://en.wikipedia.org/wiki/eating_disorder http://en.wikipedia.org/wiki/drug_abuse http://en.wikipedia.org/wiki/alcohol_abuse http://en.wikipedia.org/wiki/humiliate http://en.wikipedia.org/wiki/falsely_accuse http://en.wikipedia.org/wiki/rage_%28emotion%29 iloka: understanding the concept, history and dimensions of domestic violence against women 47 | p a g e these affect the woman sensitivity. when people think of domestic abuse, they often picture battered women who have been physically assaulted. but not all abusive relationships involve violence. just because you’re not battered and bruised doesn’t mean you’re not being abused. many men and women suffer from emotional abuse, which is no less destructive. unfortunately, emotional abuse is often minimized or overlooked—even by the person being abused.32 emotional abuse and domestic violence the aim of emotional abuse is to chip away at your feelings of self-worth and independence. if you’re the victim of emotional abuse, you may feel that there is no way out of the relationship or that without your abusive partner you have nothing. emotional abuse includes verbal abuse such as yelling, name-calling, blaming, and shaming. isolation, intimidation, and controlling behaviour also fall under emotional abuse. additionally, abusers who use emotional or psychological abuse often throw in threats of physical violence or other repercussions if you don’t do what they want. you may think that physical abuse is far worse than emotional abuse, since physical violence can send you to the hospital and leave you with scars. but, the scars of emotional abuse are very real, and they run deep. in fact, emotional abuse can be just as damaging as physical abuse—sometimes even more so.33 economic or financial abuse and domestic violence economic abuse is a form of abuse when one intimate partner has control over the other partner's access to economic resources. economic abuse may involve preventing a spouse from resource acquisition, limiting the number of resources to use by the victim, or by exploiting economic resources of the victim. the motive behind preventing a spouse from acquiring resources is to diminish the victim's capacity to support oneself, thus forcing him/her to depend on the perpetrator financially, which includes preventing the victim from obtaining education, finding employment, maintaining or advancing their careers, and acquiring assets. in addition, the abuser may also put the victim on an allowance, closely monitor how the victim spends money, spend victim's money without one’s consent and creating debt, or completely spend victim's savings to limit available resources.34 this takes place when perpetrators control access to all of the victim’s resources such as times, transportation, food, clothing, shelter, insurance and money. he may interfere with her ability to become selfsufficient, and insist that he controls all of the finances. when the victim leaves the violent relationship, the perpetrator may use economics as a way to control or force her to return.35it is not uncommon in our society where men refuse that their women should have some economic independence by not allowing them to go to school, take up a job or involve in some form of business. so also is the issue of men taking / seizing the salaries of their wives and decide how to spend it. this gives the impression that these women are irresponsible. remember, an abuser’s goal is to control you, and he or she will frequently use money to do so. economic or financial abuse includes: (a) rigidly controlling your finances. (b) withholding money or credit cards. (c) making you account for every penny you spend. (d) withholding basic necessities (food, clothes, medications, shelter). (e) restricting you to an allowance. (f) preventing you from working or choosing your own career. (g) sabotaging your job (making you miss work, calling constantly). (h) stealing from you or taking your money.36 5. conclusion and recommendations from the foregoing, this article has delved into espousing the necessity for sensitization through a better understanding of the concept, history and dimensions of domestic violence in nigeria. the findings of this article are thought provoking. they interrogate african customary and religious believes which favoured the patriarchal hegemony. it also purveys a better understanding for peaceful harmony, human development, and life in multi religious society, with the home as the citadel for tutelage. succinctly put, a deeper understanding of the concept, history and dimensions of domestic violence against women would conscientise the victim of domestic violence and any concerned person to take the necessary measures against the dastardly act. therefore, it is recommended that not just the civil society organization, but every stakeholder in the academics, politics, and so on should take up the task of sensitizing households and the masses on the concept, history and dimensions of domestic violence against women. finally, this article is significant to all stakeholders in human right and the vulnerable right. it would be of interest in the further researches to examine the signs, effects, causes, and the legal frame work of domestic violence. 32smith and segal (n 3) 2. 33ibid. 34ibid. 35obioma (n 4) 334. 36d berrios, ‘domestic violence risk factors and outcomes’ (2019)the western journal of medicine (2)133. obi & aduma: contemporary judicial response to women’s succession and inheritance rights in nigeria: a heave to gender discrimination page | 42 contemporary judicial response to women’s succession and inheritance rights in nigeria: a heave to gender discrimination* abstract women in nigeria have continuously experienced discriminatory treatment in real life particularly due to the male dominant nature rooted in patriarchal ideology. one of the numerous areas where women have been treated unfairly is that of inheritance. under many nigerian customary law systems, women cannot inherit their husbands’ estate and in some cases their parents. however, their male counterparts can inherit as husbands and children. there is a notion that wives are their husband’s immovable property to be inherited; most customs therefore based the right to inheritance on blood relation. indeed, inheritance is one of the commonest ways for women to acquire or access land which the anchor of all that is valuable. disinheritance seriously undermines women’s economic security and feminized poverty. using a doctrinal research methodology, the paper examined some discriminatory cultural practices under customary laws with particular reference to succession and inheritance. it equally apprised recent judicial decisions on women inheritance. the paper found out that nigerian courts have a great role to play in the re-engineering of laws relating to women’s inheritance rights under customary law; equally as a result of ignorance, illiteracy, poor access to legal justice system, women have not been able to exploit the full potentials of the law to their own advantage. the paper therefore recommended that women should be enlightened on the need to bring to fore cases of disinheritance and discrimination against women under the guise of custom. it further recommended that restatement of customary law through codification, unification and harmonization of the native laws and customs of the various ethnic groups would go a long way in bringing about uniformity, certainty and predictability of customary law thereby improving its status from being an instrument of male chauvinism to that of a civilized law that respects gender equality and the rule of law. keywords: judicial response, women succession, inheritance rights, gender discrimination, nigeria. 1. introduction the triple system of marriage laws1 in nigeria has resulted in the existence of a plural law of women’s inheritance rights to property in nigeria. upon a man’s death, the devolution of his property may be governed either by customary or islamic law on the one had or by the adopted english system of inheritance. the question of which law would apply quite often arises in cases of intestacy for the presence of a valid will leave little or no room for uncertainty. similarly, the type of marriage contracted by the intestate is also a determining factor of the applicable intestacy rules in a particular set of circumstance. most marriages are usually conducted under the marriage act and the traditional rites. parties may do the traditional ceremonies first and later contract a marriage under the act or vice-verse. rarely do they feel adequately married until both are contracted2. the parties go through these complicated arrangements in a purported desire to satisfy all the parties concerned, and themselves. it never occurs to them to reflect on the possible irreconcilable difference in the legal incidents of the two contracts, and the inevitable conflicts, that might result from their co-existence. whereas, it is often theorized that the two streams of law run independently, the truth is that often times they meet in the personal life of the individual especially within marriage; but they rarely meet harmoniously. consequently, inheritance rights are governed by the three system of laws with much complications upon the demise of one such parties. moreover, the 1978 land use act of nigeria established a state owned land system that allowed similar opportunities for men and women to acquire or inherit land. however, only legally married women could benefit from this act, so it did not necessarily improve the ownership or inheritance rights for women in nigeria. transfer of land ownership is still largely guided by customary practices that discriminate against women. however, current judicial activism has exposed the fact that women’s human right have, shifted from mere focus on human rights standards to means of implementing human rights of women, thus breaking barriers. it is therefore against this backdrop that this paper examines some discriminatory cultural practices under customary laws with particular reference to succession and inheritance and the recent judicial decisions on women inheritance in nigeria. 2. what is succession/inheritance? the law of succession involves the transmission of the rights and obligations of the deceased person in respect of his estate to his heirs and successors. it deals primarily with the distribution of a deceased person’s estate to his heirs and successors. black’s law dictionary defined succession as the act or right of legality or officially taking over a predecessor’s office, rank or duties; it is the acquisition of rights or property by inheritance under the laws of descent and distribution.3 there could be succession on death to entirely of a deceased person’s assets and liabilities. hereditary or instate succession is the method used to distribute property owned by a person who dies *by helen obiageli obi, llb, bl, llm, phd, lecturer, faculty of law, nnamdi azikiwe university awka; and *onyeka christiana aduma, llb, bl, llm, phd, lecturer, faculty of law, nnamdi azikiwe university awka. 1 these are statutory, customary and islamic marriages. 2 a o obilade, women in law (lagos: university of lagos, 1993) p 118. 3 ba garner (ed), black’s law dictionary, (8th edn, minnesota: thomson west, 2004) p. 1479 african customary and religious law review 1 (2020) page | 43 without a valid will4. succession is also referred to as the passing of property of persons upon the death of the owner of the property5. it deals with the rules governing the administration of the real estate by the personal representatives of the deceased person including state participation. in respect of the real estate situate within its territory and personal estate of the deceased person subject to its jurisdiction. succession may be testate or intestate. where a deceased person made a will, he is said to have died testate. where a deceased person did not make a will he is said to have died intestate. properties which are acquired by a person could be ‘personal’ or ‘real’. personal property include all the property owned by a person except land,6 while real property is land and as a general rule, whatever is affixed or attached to land. the totality of both the personal and real properties of a deceased person is called an estate. the estate also includes all debts and liabilities of the deceased person before his death.7 this is the property received from an ancestor under the laws of intestacy. it is also the property that a person receives by bequest or devise8. it is the entry of a living person or living persons into possession of a dead person’s property. it operates where private ownership of property exists as a basis of social and economic enhancement9. inheritance and succession are essentially the same, however, the minor difference between them is worthy of mention. thus, while inheritance connotes the possession of a dead person’s property or interest by a living person or persons, succession is more elaborate and includes the act or right of legally or officially taking over a predecessor’s office, rank and duties. it also involves absorption of rights and liabilities of the deceased in respect of the estate of the deceased10. 3. some customary women’s inheritance practices generally, a woman has no right of inheritance to her husband’s estate, her contributions to the acquisition of the estate notwithstanding. the practice is entrenched in patrilineal societies which accord the right and privilege to inherit to sons alone and exclude daughters and wives from inheritance11. this is indeed discriminatory, using gender as a construct on the issues of women’s inheritance rights. the igbo custom originally, the custom forbids property inheritance by women. the customary law of inheritance is predominantly patrilineal. land and landed properties are basically inherited by the eldest son of the deceased in areas that practice the primogeniture system. such first son can inherit absolutely to the exclusion of other children. however, if there is no son or he is not of age, the man’s brother or uncle becomes the visible beneficiary12. the females of the family can reside or utilize allotted parcels of land according to their needs but it is very temporary in nature. it will never amount to inheritance. thus, sisters or wives cannot inherit landed property. in uboma v ibeneme13 the court held that daughters cannot inherit from their deceased father’s estate in the eastern part of nigeria. where a man is married to more than one wife, the eldest sons of each wife inherit jointly their father’s land. in ejiamike v ejiamike,14 it was held that the absence of the right to inheritance by the widow extends to the administration of the intestate estate especially where there is a male issue and that the male as of right was entitled to administer the estate of the deceased father. indeed, the woman’s interest or right to her husband’s estate depends on a number of factors such as whether she has sons or is childless, and also her character and behaviors. if she produced sons, she is fully entitled to remain in her husband’s house, farm his personal lands as she wishes. she however remain not as an owner but as a caretaker of the lands for her infant sons who are the rightful successors. however, where she has no male but only female issues, at her husband’s death, she is merely entitled to reside in the home with her children for life or until she decides to leave. but this right is subject to good behavior on her part. thus, if the family finds her wanting in character she forfeits her right to remain in the house or farm the land15 4 ibid, p. 1479 5 tog animashun and a b oyeneyin, law of succession, wills and probate in nigeria (lagos: mij publishers, 200) p. 3. 6 this include, money, goods, trinkets, shares, clothes 7 jam agbonika, ‘the right of a woman to succession and inheritance under native law and custom in nigeria: the need for reform’ (2013) 5(13) kogi state university b. annual journal of public law, 15. 8 ibid, p15. 9ovc ikpeze, ‘gender dynamics of inheritance rights in nigeria, need for women empowerment (onitsha: folmech printing & pub. co. ltd, 2009) p 6. 10 ibid. 11 e i nwogugu, family law in nigeria, (ibadan, heinemann educational books nigeria ltd, 1974) p 407. 12 ovc ikpeze, op cit, p 147. 13 (1967) e m l r 251. 14 (1972) 2 enlr, 11. 15 a o obilade, op cit, p 310. obi & aduma: contemporary judicial response to women’s succession and inheritance rights in nigeria: a heave to gender discrimination page | 44 moreover, the decision in nezianya v okagbue,16 portrays the position of a widow without male issue with regard to her husband’s property. in that case, the widow on the death of her husband began to let his house to tenants. probably responding to her business sense, she sold a portion of the land and with the proceeds she built two or more huts on another part of the land which she also let. on her attempt to sale more lands, perhaps for more viable investments, her husband’s family objected, claiming that she had no right under onitsha custom to make such sales. she had just one daughter who predeceased her, leaving also two daughters who were the plaintiffs in the case. the plaintiff’s claimed as against members of their grandfather’s family who instituted action in the native court challenging the window’s right to alienate her husband’s property that they were entitled to the exclusive possession and ownership of the land and huts which their widowed grandmother had built. rejecting their claim, the supreme court held that under native law and custom of onitsha, a widow’s possession of her deceased husband’s land was not that of a stranger, and no matter how long such possession lasted, it could never be adverse to her husband’s family and would never make her the owner. she could not also deal with his property without the consent of the family. it was also held obiter that if a husband died without male issue, the real property descended to his family. neither his female issue nor his widow could inherit it.17 more than two decades later, the supreme court affirmed their nezianya decision in nzekwu v nzekwu,18 where it was held inter alia, that on her husband’s death, a widow who has no male issue has only a right to occupy the building or part of the building belonging to her husband subject to good behavior. while she may deal with the property only with the consent of the family, she cannot by effluxion of time, claim the property as her own. her interest in the house is merely possessory and not proprietary so that she cannot dispose of it. the rationale for this law is the fact that women are expected to get married and ultimately leave their parents’ home and move to the family of their husband to become part of their husband’s family. hence, much of the heritable properties, such as land, remains in the family of founder and cannot be taken out into another family19. there is also the general notion that a wife is her husband’s property to be inherited on his death. this description of a wife has gained considerable ground among nigerians and europeans alike. early writers and even high court judges have accepted and referred to this view. however, the concept is unpleasant to the hearing of many nigerians and also repulsive to women. perhaps, obi made a very valiant and brilliant defence that wives are neither property nor are they inherited. a wife is a priceless property and a distinct specie which is totally adored. she is a thing of beauty to be handled with celestial care and protected by the husband. she is his, potentially for life and perhaps forever. her worth is inestimable. above all, a widow has the right to refuse and remarry20. the writers are of the view that it is naïve to suggest that a widow is inheritable. it is a truism that defective land tenure system which concentrate land ownership in the hands of a selected group fans social injustice as is the case in most states in eastern part of nigeria. it simply demonstrates man’s inhumanity to womanhood, an entrenched mechanism of disempowerment of women and a barbarous social condition. it is interesting to know that this igbo custom is repositioned currently through judicial activism21. the yoruba custom originally, the eldest brother of the deceased inherited absolutely to the exclusion of his children and wife or wives. the yoruba customary law appears by means of judicial decisions to have developed beyond the restrictions imposed in other native law and customs. in adeseye v taiwo22 the court viewed such custom as repugnant to natural justice, equity and good conscience. the yorubas have early enough responded to the waves of change in the social and economic attitudes and needs in their society and have modified the custom. under the present yoruba customary law, daughters have the same inalienable rights as sons over their father’s property. thus, under yoruba customary law all the children of a deceased person both male and female, succeed to his property23 on his intestacy. the eldest son, the dawodu, thenceforth becomes the head of the family taking charge and management of the deceased’s estate for himself and other children. however, it was held in lewis v bankole24 16 (1963) 1 all nlr 352 17 ibid. 18 (1989) 2 mwlr (pt 104) 317 19 a g karibi – whyte, succession rights of women in nigeria in international federation of women lawyers proceedings and paper of a symposium, 10th anniversary (enugu, forth dimension publishers, 1994) p 49. 20 snc obi, the igbo law of property (london, butter worth, 1963) p 9. 21mojekwu v mojekwu (1997) 7nwlr 283, change the tide with respect to women’s right to land and to inherit property from the estate of their deceased husband or father; in balogun v oshodi (1931) 10 nlr 36, it was posited that native law or custom is a living thing and may change as conditions change. 22(1957) ifsc, 54; coker v coker (1975) wrlr 10. court held that daughters right to the house do not terminate at their marriage for they are entitled on their husband’s death or termination of their marriage to return and reside in the family house with their children. 23 olowu v olowu (1985) 3 nwlr 372. 24 (1908) nlr, 81. african customary and religious law review 1 (2020) page | 45 that not only can a woman inherit property but she can also be the head of the family. consequently, where the eldest child is a female she succeeds as head of the family. osborne cj stated in lewis v bankole, 25 that there is nothing inequitable in the recognition of women’s right. while indeed the rights of daughters to succeed to their father’s property has been achieved in yoruba land, the wife is still treated as a stranger in her husband’s family. the custom is that a wife can neither inherit her husband’s property nor take a share in his estate. the supreme court held in akinnubi v akinnubi,26 that it is a well settled rule of native law and custom of the yoruba, that a wife could not inherit her husband’s property. indeed, under yoruba customary law, a widow under an intestacy is regarded as part of the estate of her deceased husband to be administered or inherited by the deceased’s family, she could neither be entitled to apply for a grant of letters of administration nor appointed as co-administrator of her deceased husband’s estate.27 however, current judicial activism have paved way for prevention and protection putting customary law at the verge of extinction. an unfair custom should not be enforced or invoked by the machinery of justice as per what the supreme court did in mojekwu’s case. the writers are therefore of the view that with the decision in mojekwu’s case, overwhelming power of interpretation of laws by courts is very glaring. northern customary law this is basically the hausas, fulanis and others. the customary law of inheritance in the northern part can be divided into the indigenous native laws and customs of inheritance and the islamic rules of inheritance. the indigenous native law and customs noted here are the birom of plateau state, the chibok of borno state, the lugada of adamawa state, the igala of kogi state and the hausa. although, the mode of inheritance under these indigenous native laws and custom vary, it is generally accepted that the first in line as heirs to a deceased person’s property are his sons and the next his brothers. females are excluded from inheriting the deceased father’s property. they would however, inherit their mother’s entire movable properties. but in the case of landed property whether owned by a man or woman is inherited only by the males in the family.28. by hausa native custom, before the advent of islam, young males and females are not entitled to inherit from their deceased father’s estate as was held in mohammedu v mohammed29. the rational was that since young sons and daughters cannot go to war and secure booties or loot,30 they should not be allowed to inherit as heirs. by the original hausa native custom, the females were themselves object of inheritance. only adult sons and brothers were entitled to inherit. the islamic rules of inheritance apply to persons who are muslims and who subject themselves to sharia law. under sharia laws, allah the ‘most high’ did not leave inheritance in the hands of the males. he classified heirs as including females and stated their shares. the rationale behind the islamic law of inheritance is based on the fact that the deceased’s property should be used primarily to support those persons whom he was obliged to first support in his life time and who have greatly suffered by his death31. sharia affords women whether as daughter or wives right to inheritance, making it the only customary law that guarantees such rights. the provisions have put the sharia customary laws on a higher pedestal in the realm of inheritance rights with emphasis on equality of all human beings32. the rules for distribution are provided for in chapter 4, verses 11 and 12 of the holy quran. in quran 4.7, allah ordained that for inheritance, the females and males must have their shares and that any widow is entitled to a share in her deceased husbands estate, as held in sidi v sher’aban,33 where the court of appeal recognized the right of a widow without any issue (child) under islamic law and practice as entitled to one quarter (¼) of the estate of the deceased husband.34 islamic law also recognizes the use of wills, called ‘wasiya.’ the power of the deceased to dispose of his property through a will is allowed but this is restricted to only one-third of his property. the use of will from the islamic point of view is a divine injunction since it is regulated by the quran. it offers the testator the means of correcting, to certain extent, the law of succession and of enabling some relatives who are excluded from inheritance by islamic law of succession to obtain a share in the deceased property. 25 supra. 26 (1997) 4 nwlr (pt 486) 144. 27 ibid. their lordships arrived at this decision in 1997 following old decided cases of aileru v anibi (1952) 20 nlr 46, where jibowu j held that under native laws and customs, widows cannot administer the estate of their husbands; suberu v sumonu (1957) 2 fsc 33, where the court upheld the yoruba custom that a wife cannot inherit her husband’s property and where there are no children alive at his death, the property will devolve on the members of the husband’s family either paternal or maternal. 28 jam agbonika, art cit, p 13. 29 (2002) nwlr (pt. 708) p.104. 30 gamima. 31c m g yakubu, ‘property inheritance and distribution of estate under customary law’, cited in y osinbajo & aw kalu, towards restatement of nigerian customary law, federal ministries of justice law review series 136. 32 o v c ikpeze, op cit, p 146. 33 (1992) 4 nwlr pt. 121) p. 208 34 note that a non-muslim cannot inherit from a moslem and vice-versa. obi & aduma: contemporary judicial response to women’s succession and inheritance rights in nigeria: a heave to gender discrimination page | 46 4. transformative judicial decision on women’s inheritance in nigeria, judicial activism is currently empowering women to access land, property, and housing by inheritance and succession from her deceased father’s or husband’s estate. the case of mojekwu v mojekwu35 seems to have changed the tide with respect of women’s right to land and to inherit property from the estate of their deceased husband or father. this case is seen nationally and internationally as a landmark for women’s human rights in nigeria, it is therefore imperative to discuss the full facts of the case. moreso, as it went to the supreme court wherein the brave woman, woman who fought for three decades for her right died and was substituted with her daughter’s name hence augustine nwafor mojekwu v theresa iwuchukwu36. at the high court, onitsha, the appellant claimed a declaration that he was entitled to the statutory right of occupancy of the property situate at and known as no. 61 venn road, south, onitsha in accordance with nnewi native law and custom, a declaration that he, being the recognized kola tenant of the mgbelekeke family of onitsha kola tenancy. according to the appellant, his only uncle okechukwu mojekwu, acquired a parcel of land from the mgbelekeke family of onitsha under kola tenancy and built a house on it which was known as no. 61 venn road south, onitsha. the man died in 1944 and was survived by two daughters and a son called patrick adina okechukwu mojekwu. the appellant averred that his own father, the only brother of okechukwu mojekwu, died in 1963 while patrick, the only son of his said uncle, died during the nigerian civil war without any child. the appellant claimed that by virtue of nnewi native law and custom, he succeeded to the estate of his late uncle, okechukwu mojekwu, and was the head of the mojekwu family. the mother of late patrick was the defendant at the high court. the respondent who was substituted for the defendant at the supreme court was one of her two daughters. the defendants case was that the property in dispute had passed to late patrick and that it later passed to chukwuemeka okechukwu, the alleged infant son of late patrick. the defendant claimed that when the house built by her husband went into ruins during the nigerian civil war, he rebuilt it, without any reference to the appellant, with her own money and that she put in all fee-paying tenants. the defendant averred that the appellant misrepresented facts to the mgbelekeke family to recognize him as the person entitled to continue the kola tenancy; that the recognition of the appellant where the male and female issues of the deceased kola tenant are living is contrary to the onitsha customary law kola tenancy system of devolution of property on death. and that the native law and custom of inheritance of onitsha applied to the cases where the land in dispute is situated and not the native law and custom of nnewi. at the trial, the evidence led on behalf of the appellant was that under nnewi custom, a male child inherits property; and, if there is no male child, the brother of the deceased owner of the property inherits it, even where the man was survived by female children. in either case, the person who so inherits is called the "oli-ekpe". he inherits the assets and liabilities of the deceased. at the conclusion of the trial, the high court dismissed the suit. aggrieved by the decision of the trial court, the appellant appealed to the court of appeal. the court of appeal came to the conclusion that the applicable law was the lex situs and that the lex situs was the kola tenancy law and not the personal law of the parties, which was the nnewi custom of "oli ekpe". the court affirmed the findings of the trial court and then dismissed the appeal. further, the court of appeal declared the "oli ekpe" custom was repugnant to natural justice, equity and good conscience. as such, the court of appeal held unconstitutional and contrary to democratic values an age long igbo customary law and in this case "oli-ekpe" custom of nnewi under which males and not females inherit their father's property. according to niki tobi, (jca) who delivered the lead judgment: is such a custom consistent with equity and fair play in an egalitarian society such as ours where the civilized sociology does not discriminate against women? day after day, month after month and year after year, we hear of and read about customs which discriminate against the womenfolk in this country. they are regarded as inferior to the menfolk. why should it be so? all human beings males and females are born into a free world and are expected to participate freely without any inhibition on grounds of sex. thus, any form of societal discrimination on ground of sex, apart from being unconstitutional, is antithesis (sic) to a civil society built on the tenets of democracy which we have freely chosen as a people. we need not to travel all the way to beijing to know that some of our customs, including the nnewi "oli-ekpe" custom, relied upon by the appellant are not consistent with our civilized world in which we all live today, including the appellant. in my humble view, it is the monopoly of god to determine the sex of a baby and not the parents. although, the scientific world disagrees with the divine truth, i believe that god, the creator of human being is also the final authority of who should be male or female. accordingly, for a customary law to discriminate against a particular sex is to say the least an affront to the almighty god himself. let nobody do such a thing. on my part, i have no difficulty in 35 [1997] 1nwlr (pt. 512) p. 283. 36 [2004] ii nwlr (pt 883) p. 196. african customary and religious law review 1 (2020) page | 47 holding that "oli-ekpe" custom of nnewi is repugnant to natural justice, equity and good conscience37. again, the decision in chinweze v masi38 readily provides the answer to non-inheritance. in that case, oputa, jsc held a man’s family normally consists of the man, his wife or wives and children born to by such wife or wives to him. in this case peter chinweze (deceased) married one elizabeth chinweze and he died in 1939, while his wife was pregnant with veronica mari (1st respondent) elizabeth chinweze and veronica were this joint – heirs until the formers death. the appellants were children acquired by the late elizabeth from 1943 onwards, who lived in the property in dispute from childhood till date. the appellants thus claimed that they grew up to know the property as theirs and sued as beneficiaries of the estate of elizabeth chinweze. the 1st respondent sold the property to the 2nd respondent, who applied to be joined as a party at the high court and was so joined. at the high court, the appellant were held to be strangers, having no interest to assert on the said property, the property being left to elizabeth chinweze by her husband (who was not appellants father) the appellants appealed to the court of appeal, which upheld the trial court’s decision and to the supreme court which also dismissed the appeal with costs to the respondents. the supreme court reaffirmed the decisions of the court of appeal that the plaintiffs had nothing to inherit. they are stranger to the property in dispute and consequently, have no interest to assert. in other words, the plaintiffs have no locus standing to bring the present action. equally, the court of appeal held in the case of okonkwo timothy v sunday oforka,39 declared the oraifite native law and custom which does not allow women to deal in landas not only unconstitutional but repugnant to natural justice, equity and good conscience. furthermore, in anekwe v nweke40, the supreme court condemned the custom and practices of the awka people finding the custom of disinheriting a woman from property to be repugnant to natural justice, equity and good conscience. the judgement emphasized that custom of this nature in the 21st century societal setting will only tend to depict the essence of the realities of human civilization, it is punitive, uncivilized and only intended to protect selfish perpetration of male dominance which is aimed at suppressing the right of the women folk in the given society. in ukeje v ukeje41, the nigerian supreme court invalidates igbo customary law denying female descendants the right to inherit. the supreme court in a unanimous decision, confirmed that the igbo customary law of inheritance, which excludes female children from inheriting the property of their deceased fathers, was in conflict with the non-discrimination provisions of the nigerian constitutions of 1999 and therefore void. thus, in aforementioned cases, the supreme court condemned the refusal of customary law to recognize female inheritance with regard to property. the writers are therefore of the view that the judgements brought to light issues of multiple or intersectional discrimination that is experienced more severely or in a unique way in connection with excursion from inheritance on the over tapping grounds of gender and circumstances of birth42 indeed, customary law in nigeria is a major source of law; however the holdings in these cases illustrate that the validity of customary rules within the legal system depends on whether those rules are consistent with the constitution and are not repugnant to natural justice, equity and good conscience. thus, in a country like nigeria, where there is a large discrepancy in gender equality that is largely grounded in traditional cultures and practices, the holdings in these cases are a significant step in the protection of women’s property rights and gender equality. recently judicial decision have developed inheritance by women to include administration of their deceased husband’s estates as typified in the case of emokpae v idubor,43 where the widow of a deceased intestate who was not entitled to benefit under the estate of the deceased was held by the court to possess the right to commence an action against the administration of such estate in order to protect the interest of her children who are beneficiaries of the estate and to protect her personal interest where it is affected by the actions done by the administration of the estate in a purported gathering of the estate. this is equally in line with the decision enunciated in akinnubi v akinnubi,44 where eventually the supreme court allowed the widow to administer her decease husband’s estate on behalf of her children as their next of friend. 5. international and national human rights standards pertaining to women’s inheritance rights international legal framework the significance of women’s property and inheritance rights has been recognize in a variety of international legal instruments. foremost among these are the following: 37 mojekwu v mojekwu, supra, pp. 304-305. 38 (1989) 1scn 14 ;( 1959) inwlr (pt. 512) 283. 39 (2008) 9 nwlr (pt 1091) 42. 40 (2014) 9 nwlr (pt 1412) 393. 41 (2014) 2 nwlr (pt 1418) 384. 42 ie being born out of wedlock. 43 (2003) 12 nwlr (pt 849) 19. 44 (1997) 4 nwlr (pt 486] 144. obi & aduma: contemporary judicial response to women’s succession and inheritance rights in nigeria: a heave to gender discrimination page | 48 universal declaration of human rights (1948) article 2 of the universal declaration of human rights, 1948 provides to the effect that everyone is entitled to all the rights and freedom set forth in the declaration without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. article 17 1 also provides that everyone has the right to own property alone as well as in association with others. also, no one shall be arbitrarily deprived of his property.45 international covenant on economic, social and cultural rights by virtue of article 22 of the international covenant on economic, social and cultural rights, 1966, each state parties undertake to guarantee that the rights enunciated in the present covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. article 3 enjoins state parties to ensure equal rights of men and women to the enjoyment of all economic, social and cultural rights. international covenant on civil and political rights article 26 of the international covenant on civil and political rights, 1966 also provides that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. in this aspect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, sex, colour, language, religion political or other opinion, national or social origin, property, birth or other status. convention on the elimination of all forms of discrimination against women convention on the elimination of all forms of discrimination against women enjoins state parties to accord to women equality with men before the law.46 by virtue of article 15 (2), states parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity. in particular, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals. united nations convention on the rights of the child article (2) of the united nations convention on the rights of the child, 1989 also enjoins state parties to respect and ensure the rights set forth in the present convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parents, colour, sex, religion, social origin, property, disability, birth or other status. the right of the girl child is a pointer to rights of women and girl-children. again, para 35 of the beijing declaration and platform for action, 1995 guarantees women’s equal access to economic resources, including land, credit, science and technology, rotational training, communication and markets as a means to further the advancement and empowerment of women and girls. article 14 of the african charter on human and peoples right, 1981, also guarantee the right to property and enjoins states to ensure the elimination of every dissemination and also ensure the protection of the rights of the women and the child as stipulated in international declarations and conventions47while according to article 21 of the protocol to the african charter on the rights of women in africa, 1995, a widow shall have the right to an equitable share in the inheritance of the property of her husband. 6. conclusion and recommendations there is no doubt that inheritance is the most veritable and important means of acquiring property in different parts of nigeria; inheritance law create confusion and undermines the efforts of women to access land and landed property so as to participate in the development of the country. women are blatantly discriminated against in a manner that is incompatible with the international instruments ratified by nigeria and also regarding the constitutional provision prohibiting discrimination. the customary laws and practice governing inheritance and succession rights of women are deficient in most places especially among the igbo of nigeria. therefore, they constitute a major obstacle to gender equality, economic empowerment of the feminine gender and actualization of social justice in terms of development, peace and security. the writers therefore recommend that women should be educated on their inheritance rights, and their enforcement and also conditions under which such rights can be enforced. the traditional chiefs (obas/ emirs/ obis where most domestic disputes are resolved should be integrated in this transformative agenda. human rights mechanisms and united nations bodies should strengthen women’s inheritance rights to property, land and other resources through effectively addressing discriminatory laws and practices. in the context of these contemporary contestations surrounding customary laws relating to women’s inheritance, nigeria jurisprudential developments on inheritance laws should ensure equality between males and females’ right to inheritance in case of intestacy. laws governing intestate succession should automatically provide spouses a share of the estate, including a life interest irrespective of forms of marriage. 45 article 17. 2. 46 article 15 (1). 47 article 15 (3). iloka, aghadinuno &. obikeze: an appraisal of gay marriage under the nigerian 61 an appraisal of gay marriage under the nigerian law* abstract gay marriage is a global phenomenon. same-sex marriage also known as gay marriage is the marriage of two people of the same legal sex. in contrast to the traditional definition or concept of marriage as the voluntary union for life between one man and one woman to the exclusion of all others same sex marriage or gay marriage is marriage between two persons of the same gender. same sex relationships and marriage is a trend which is now spreading across the globe as the number of countries that support it increases as time goes on. but nigeria appears to be counted outside this growing world community as the nigerian national assembly in 2013, passed a law prohibiting same sex marriages in any form. the aim of the study was to critically examine gay marriage and the legal import and make to compare with other foreign jurisdictions. the research methodology was doctrinal approach, using expository and analytical research design. the main sources of data collection were various legal literatures, both from the physical library and the e-library. the study observed that same-sex relationships and marriage is a trend which is now spreading across the globe as the number of countries that support it increases but nigeria appears to be counted outside this growing world community as the nigerian national assembly in 2013, passed a law prohibiting same sex marriages in any form. however, it is recommended among others that on the basis of the relationship between law and morality it is advocated that nigeria should not legalize same sex or gay marriages in the country regardless of what the practice is in other jurisdictions. keywords: gay, legal, marriage, rights, same sex marriage. 1 introduction gay marriage is a global phenomenon but it is controversial and relatively new in nigeria. there is no law in nigeria according recognition to that relationship which is still abhorred by the majority of members of the society mainly on account of their cultural pattern and religious inclinations.1 same-sex marriage also known as gay marriage is the marriage of two people of the same legal sex. in contrast to the traditional definition2 or concept of marriage as the voluntary union for life between one man and one woman to the exclusion of all others,3 same sex marriage or gay marriage is marriage between two persons of the same gender. same sex relationships and marriage is a trend which is now spreading across the globe as the number of countries that support it increases as time goes on. but nigeria appears to be counted outside this growing world community as the nigerian national assembly in 2013, passed a law prohibiting same sex marriages in any form.4 this paper examines the statute of same sex marriage relation in nigeria by analyzing provisions of various laws including the nigerian constitution. the paper also discusses the content of the law passed by the national assembly prohibiting same gay or same sex marriage and compares it with the practice in other jurisdictions. the paper concludes with the view that the law, strictly speaking, is inconsistent with the fundamental rights guaranteed by the constitution.5 however, it is recommended among others that on the basis of the relationship between law and morality it is advocated that nigeria should not legalize same sex or gay marriages in the country regardless of what the practice is in other jurisdictions. 2. gay marriage in history the ancient reference to marriage between same-sex couples appears in the sifra (the halakhic midrash to the book of leviticus) which was written in the 3rd century ce. the book of leviticus prohibited homosexual relations; and the hebrews were warned not to ‘follow the acts of the land of egypt or the acts of the land of canaan’ (lev. 18:22, 20:13). the sifra clarifies what these ambiguous ‘acts’ were, and that they included marriage between same-sex couples: ‘a man would marry a man and a woman a woman, a man would marry a woman and her daughter, and a woman would be married to two men. what is arguably the first historical mention of the performance of marriages between same-sex couples occurred during the early roman empire *by chinwe patricia iloka, ba(ed), llb, bl, llm, phd, lecturer, faculty of law, chukwuemeka odumegwu ojukwu university, anambra state, nigeria. email: chypat4@gmail.com, cp.iloka@coou.edu.ng. telephone: 08035696281; *chisom maria-gorretti aghadinuno, llm, bl, ministry of justice abuja nigeria. email: aghadinunochisom@gmail.com; telephone: +2349034771772; and *onyinyechukwu chinedum obikeze, llm candidate, faculty of law, chukwuemeka odumegwu ojukwu university, anambra state, nigeria. email:obikeze1a@gmail.com; telephone: +234703858439 9. 1 e sessou, nigerian law is against our fundamental rights-gays, saturday vanguard 29 june 2013 2 traditional definition used in the loose sense. 3hyde vs. hyde (1866) lr 1 p&d 130. 4same sex marriage (prohibition) act (ssmpa), 2013 5 section 39(1) 1999 constitution of the federal republic of nigeria (as amended). mailto:chypat4@gmail.com mailto:cp.iloka@coou.edu.ng mailto:aghadinunochisom@gmail.com african customary and religious law review (acarelar) 4 (2023) 62 according to controversial6 historian john eastburn boswell. child emperor elagabalus referred to his chariot driver, a blond slave from caria named hierocles, as his husband.7 he also married an athlete named zoticus in a lavish public ceremony in rome amidst the rejoicings of the citizens. according to craig a. williams, some romans as early as the first century clearly did participate in formal ceremonies in which two males were married. these marriages were seen as atypical. williams writes that ‘a marriage between two fully gendered 'men' was inconceivable; if two males were joined together, one of them had to be 'the woman’.’8 the first roman emperor to have married a man was nero, who is reported to have married two other males on different occasions. the first was with one of nero's own freedmen, pythagoras, with whom nero took the role of the bride.9 later, as a groom, nero married sporus, a young boy, to replace his wife poppaea sabina following her death, and married him in a very public ceremony with all the solemnities of matrimony. contemporary historians variously trace the beginning of the modern movement in support of same-sex marriage to anywhere from around the 1980s to the 1990s. in united states of america, same-sex marriage became an official request of gay rights movement after the second national march on washington for lesbian and gay rights in 1987.10 in 1989, denmark became the first country to legally recognize a relationship for same-sex couples, establishing registered partnerships, which gave those in same-sex relationships ‘most rights of married heterosexuals, but not the right to adopt or obtain joint custody of a child.’11 in 2001, the continental netherlands became the first country to broaden marriage laws to include same-sex couples. since then, same-sex marriage has been established by law in 31 other countries, including most of the americas and western europe. yet its spread has been uneven; south africa is the only country in africa to take the step and taiwan is the only one in asia.12 3. the legal position of gay/ same-sex marriage in nigeria criminalization of same sex sexual conduct chapter 21 of the nigerian criminal code criminalizes certain sexual conducts and terms them, ‘offenses against morality’. sections 214 and 215 of this chapter make ‘carnal knowledge of any person against the order of nature’ a felony punishable by fourteen years imprisonment.13 this is the language traditionally used to penalize same-sex sexual activity. additionally, section 217 of the criminal code states as follows: any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures a male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for three years. punishment can be even more severe in nigeria’s twelve northern states, which have adopted sharia law. in those states, adults convicted of engaging in same-sex sexual activity may be subject to execution by stoning.14 sharia law and criminalization of same-sex intimacy in northern nigeria, where sharia law is implemented in 12 states, consenting homosexual conduct between two adults is punishable. for example, the zamfara sharia penal code stipulates that: ‘art. 130: sodomy (liwat) defined it thus; whoever has carnal intercourse against the order of nature with any man or woman is said to commit the offence of sodomy: provided that whoever is compelled by the use of force or threats or without his consent to commit the act of sodomy upon the person of another or be the subject of the act of sodomy, shall not be deemed to have committed the offence. art. 131: punishment for sodomy 6shaw criticizes boswell's methodology and conclusions as disingenuous shaw, brent (july 1994).’a groom of one’s own? the new republic.’ pp. 43–48. archived from the original on 7 may 2006. retrieved 20august 2022. 7bunson, m., encyclopedia of the roman empire, infobase publishing, 2009, p. 259. 8williams, ca.,roman homosexuality: second edition, oxford university press, 2009, pp. 279–284. 9 ibid. 10<https://www.harvardmagazine.com/2013/03/how-same-sex-marriage-came-to-be> retrieved 20 august 2022. 11sheila rule, ‘rights for gay couples in denmark’. new york times (2 october 1989) <https://www.nytimes.com/1989/10/02/world/rights-for-gay-couples-in-denmark.html> retrieved 20 august 2022. 12d. crary and m. corder,’the dutch went first in 2001; who has same-sexmarriage now?’ https://apnews.com/article/europe-africa-netherlands-job-cohen-western-europe-e08b053af367028737c9c41c492cc568 retrieved 20 august 2022. 13 criminal code act (1990) cap. 2, ss. 214-15. 14bureau of democracy, human rights, and labor, 2008 human rights report: nigeria,u.s. dept. of state http://www.state.gov/j/drl/rls/hrrpt/2008/af/119018.htm retrieved 20 august 2022. https://www.harvardmagazine.com/2013/03/how-same-sex-marriage-came-to-be https://www.nytimes.com/1989/10/02/world/rights-for-gay-couples-in-denmark.html https://apnews.com/article/europe-africa-netherlands-job-cohen-western-europe-e08b053af367028737c9c41c492cc568 http://www.state.gov/j/drl/rls/hrrpt/2008/af/119018.htm iloka, aghadinuno &. obikeze: an appraisal of gay marriage under the nigerian 63 whoever commits the offence of sodomy shall be punished: (a) with caning of one hundred lashes if unmarried, and shall also be liable to imprisonment for the term of one year; or (b) if married with stoning to death (rajm). art. 134: lesbianism (sihaq) defined whoever being a woman engages another woman in carnal intercourse through her sexual organ or by means of stimulation or sexual excitement of one another has committed the offence of lesbianism. art. 135: punishment for lesbianism whoever commits the offence of lesbianism shall be punished with caning which may extend to fifty lashes and in addition be sentenced to a term of imprisonment which may extend to six months. same sex marriage (prohibition) act 2013 the same sex marriage (prohibition) act (ssmpa), 2013, was enacted by nigeria’s national assembly in december 2013 and signed into law by the president on the 7th day of january, 2014. although the law’s title refers to ‘same sex marriage’, the scope of the law is much broader. it includes same sex relations. by the provisions of this act, not only is the act of same sex marriage prohibited by the law, the witnessing of such is also prohibited. the explanatory memorandum of the act15 states as follows: ‘this act prohibits a marriage contract or civil union entered into between persons of same sex, and provides penalties for the solemnization and witnessing of same thereof.’ the act cited as same sex marriage (prohibition) act 2013 (ssmpa) contains eight (8) sections. section 1 clearly prohibits marriage or civil unions between persons of the same sex. the section clearly provides that such marriages or unions will not be recognized in nigeria nor shall they be entitled to the benefits of a heterosexual marriage which the act describes as a valid marriage. the section finally declares a marriage certificate relating to such prohibitive unions derived from a foreign country void. section 1(2) provides inter alia: ‘a marriage contract or civil union entered into between persons of same sex by virtue of a certificate issued by a foreign country is void in nigeria, and any benefit accruing there-from by virtue of the certificate shall not be enforced by any court of law’.. section 2 of the act prohibits the solemnization of such unions in any place of worship in nigeria. under the nigerian law, even where such marriage has taken place and a certificate issued to that effect, such certificate issued in such a marriage shall not be valid in nigeria; as only marriages contracted between a man and a woman shall be recognized as valid in nigeria.16 from the provision of section 2, it is clearly implied that if two persons a and b conduct a marriage in a country where same sex marriage is recognized and a certificate issued to that effect, it then means that in nigeria, the said certificate will not be recognized irrespective of the fact that it was recognized in the country where the marriage was celebrated. section 4 of the act relates to the registration of homosexual clubs and societies. the section prohibits the registration of gay clubs, societies and organizations. it further prohibits the sustenance, processions and meetings of such clubs and societies. the public show of same sex amorous relationship either directly or indirectly is equally prohibited17. it is important to point out at this juncture, that the section is spuriously silent on the private show of amorous relationship either directly or indirectly. the law prescribes punishment for persons who enter into a same sex marriage contract or civil union. such a person is said to have committed an offence and liable on conviction to a term of 14 years imprisonment.18 the law goes further to prescribe punishment for person who registers, operates or participates in gay clubs, societies and organization, or directly or indirectly makes public show of same sex amorous relationship in nigeria.19 the implication of this provision is that such businesses are illegal in nature and as such, the corporate affairs commission cannot register such businesses in nigeria. again, even if mr. a from costa rica is gay, he cannot be allowed to display such amorous show in nigeria. in the same vein, person or group of persons who administers, witnesses, abets or aids the solemnization of a same sex marriage or civil union, or supports the registration, operation and sustenance of gay clubs, societies, organizations, processions or meetings in nigeria commits an offence and is liable on conviction to a term of 10 years imprisonment.20 where a person is in 15 ssmpa, 2013 16 sections 2(2) & 3 ssmpa 17 section 4(2) ssmpa 18 section 5(1) ssmpa. 19 section 5(2) ssmpa10 years imprisonment 20 section 5(3) ssmpa african customary and religious law review (acarelar) 4 (2023) 64 breach of the provisions of the ssmpa, the court seized with the jurisdiction to hear the matter is the high court of a state or the federal capital territory.21 it is observed that the act is also silent on the many other variants of gender and sexual variations that form the lgbtq+ community. a transgender person for instance, who seeks transition in or outside nigeria, the law is completely silent on this. the law is equally silent on the status of a transgender person who having transitioned seeks to marry ‘heterosexually’ in accordance with his/her acquired sex or same sex with the acquired sex. in such circumstances, which one of the above will come within the purview of the act? perspectives on the criminalization of gay/same sex marriage in nigeria particularly in the light of the ssmpa 2013 domestic human rights perspective the justification for same sex marriage (ssm) and the lgbtq+ causes have been largely rooted in human rights. the first concern the ssmpa creates is as it relates to the right to privacy as guaranteed by the constitution22 as well as other international treaties that nigeria is a party to. there are several aspects to the right of privacy which may include the privacy of one’s personal information, one’s body, personal space, and one’s communications.23 people who argue against the justification of the ssmpa are of the view that the law violates people’s right to privacy. the argument may however fail as it remains unsettled how private the exercise of the liberty of gender and sexual orientation are. for instance, in the case where tran’s women24 now insist to be enlisted in sporting competition against biological or cisgender female while retaining their biological advantage as biological men already moves their gender issue out of private domain into a public sphere and a host of other issues.25 be that as it may, the right to privacy is not unfettered. section 45(1)(a) cfrn, 1999 empowers the government to make laws that may curtail same in the interest of defence, public safety, public order, public morality or public health. another human right issue raised against the ssmpa is the right to freedom of association26 denied the lgbtq+ (lesbians, gay, bisexual, transgender, queer, etc) community under section 4 of ssmpa. this argument is however spurious as the law cannot by any stretch of imagination allow meetings upon illegality that would amount to blowing hot and cold.27 further still, section 40 is also fettered by section 45(1)(a) cfrn, 1999 which empowers the government to make laws that may curtail same in the interest of defense, public safety, public order, public morality or public health. finally, it is equally argued that they enjoy the right against discrimination as provided under section 42 cfrn which protects every citizen of nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion from being discriminated against by reason only that he is such a person.28 the proponents of such arguments assume that the use of ‘sex’ in this context connotes sexual orientation. with respect however, the word as used connotes sex as in male or female. the mind of the drafters of the constitution was to eliminate gender discrimination as it is prevalent in nigeria even in those times. the lgbtq+ with respect was not an issue in this country then and could therefore not have elicited such constitutional protection while in the same vein criminalizing same in the criminal and penal codes.29 this would be tantamount to breathing hot and cold. international human rights perspective in response to the enactment of the ssmpa, the african commission’s special rapporteur on human rights defenders in africa mrs. reine alapinigansou, issued a press release noting that she ‘is deeply concerned about the consequences this law may have on sexual minorities who are already vulnerable as a result of social 21 section 6 ssmpa 22 section 37, cfrn 199 23charles raab and benjamin goold, protecting information privacy <https://www.equalityhumanrights.com/sites/default/files/research-report-69-protecting-information-privacy.pdf> accessed 20 august 2022. 24 that is, a man who transitioned into a woman by aid of medical technology. 25andrea jones, males don’t belong in women’s sports—even if they don’t always win <https://www.heritage.org/gender/commentary/males-dont-belongwomens-sports-even-if-they-dont-always-win> accessed 20 august 2022 26 section 40, cfrn 1999 27ijale v ijale (2018) lpelr-46637(ca); luke okoro & ors v hilary egbuoh & ors (s.c) 395/2001; eshwarappa v the special land acquisition officer mfa8200/2015. 28 navanethem pillay, ‘un human rights chief denounces new anti-homosexuality law in nigeria,’ january 14, 2014<http://www.ohchr.org/fr/newsevents/pages/displaynews.aspx?newsid=14169& langid=e#sthash.vwy5ccuc.dpuf> accessed 18 august, 2022. 29 major bello magaji v the nigerian army [2008] lperl-1814(sc). http://www.ohchr.org/fr/newsevents/pages/displaynews.aspx?newsid=14169&%20langid=e#sthash.vwy5ccuc.dpuf http://www.ohchr.org/fr/newsevents/pages/displaynews.aspx?newsid=14169&%20langid=e#sthash.vwy5ccuc.dpuf iloka, aghadinuno &. obikeze: an appraisal of gay marriage under the nigerian 65 prejudice.’30 further stating: ‘the special rapporteur is concerned by some provisions of the act, in particular, sections 4(1) and 5(2) which prohibit and provide for penalties against defenders of the rights of lesbian, gay, bisexual and transgender (lgbt) people. these provisions undermine the work of human rights defenders and are against any public debate on this crucial issue.’ the enactment of the ssmpa also elicited concern from the international community, including the united nations and the african commission, about its potential impact on human rights. on january 14, 2014, former united nations high commissioner for human rights, navanethem pillay, called the ssmpa a ‘draconian new law’ that ‘makes an already bad situation worse’31: rarely have i seen a piece of legislation that in so few paragraphs directly violates so many basic, universal human rights ... rights to privacy and nondiscrimination, rights to freedom of expression, association and assembly, rights to freedom from arbitrary arrest and detention: this law undermines all of them. again, former un high commissioner navi pillay predicted the law risked ‘reinforcing existing prejudices towards members of the lgbt community and may provoke an upsurge in violence and discrimination.’ at the same time, the joint united nations programme on hiv/aids (unaids) and the global fund to fight aids, tuberculosis and malaria (global fund) warned that the ssmpa would impede access to hiv services for lgbt people in nigeria.32 while examining the iccpr (international covenant on civil and political rights), the following should be noted: firstly, article 6 of the iccpr proclaims that, ‘every human being has the inherent right to life. this right shall be protected by law. no one shall be arbitrarily deprived of his life.’33 article 7 declares that nobody can be ‘subjected to torture or to cruel, inhuman or degrading treatment or punishment.’34the human rights committee’s general comment no. 20 established that the purpose of the prohibition against torture and cruel, inhuman or degrading treatment is to ‘protect both the dignity and the physical and mental integrity of the individual.’35 between december 2017 and november 2018 civil society organizations monitoring violations on grounds of sexual orientation, gender identity, and gender expression reported 15 cases of torture of individuals based on their real or perceived sexual orientation, gender identity or expression were reported along with 38 cases of assault and battery, 17 cases of threats to life, and 4 cases of murder.36 secondly, article 9 of the iccpr protects the right to liberty and to the security of the person. specifically, it states that ‘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.’37 arbitrary arrests and unlawful detentions are perpetrated by state actors and non-state actors and are often based on one's perceived sexual orientation.38 most times, arrests are based on one's sexual orientation because a lot of individuals have limited knowledge on gender identity.39 however, anyone who is expressing gender identity that is non-conforming to the society's expectation is still a target.40 the number of cases of arbitrary arrests and unlawful detentions of people based on their real or perceived sexual orientation, gender identity, or gender expression reported to human rights organizations between december 2017 and november 2018 was 30.41 actions by non-state actors are further validated by the behavior of state actors, specifically law enforcement, who also extort people based on their sexual orientation, gender identity, or gender expression by evoking fear 30 special rapporteur on human rights defenders in africa, press release on the implication of the same sex marriage [prohibition] act 2013 on human rights defenders in nigeria, 5 feb. 2014, available at http://www.achpr.org/press/2014/02/d190/ 31 ibid 32 unaids and the global fund express deep concern about the impact of a new law affecting the unaids response and human rights of lgbt people in nigeria,’ unaids press release, january 14, 2014 http://www.unaids.org/en/resources/presscentre/pressreleaseandstatementarchive/2014/january/20140114nigeria accessed 19 august 2022. 33 article vi, international covenant on civil and political rights, opened for signature dec. 16, 1966, 999 u.n.t.s. 171 (entered into force mar. 23, 1976). 34 article vii, international covenant on civil and political rights, opened for signature dec. 16, 1966, 999 u.n.t.s. 171 (entered into force mar. 23, 1976) 35 human rights committee, gen. comment 20, art 7 (forty-fourth session, 1992), compilation of gen. comments and gen. recommendations adopted by human rights treaty bodies, u.n. doc. hri/gen/1/rev.1 at 30 (1994) available at http://www1.umn.edu/humanrts/gencomm/hrcom20 36 the initiative for equal rights, human rights violations based on real or perceived sexual orientation and gender identity in nigeria, 2018 37article ix, international covenant on civil and political rights; opened for signature dec. 16, 1966, 999 u.n.t.s. 171 (entered into force mar. 23, 1976). 38 mx. emmanuella david-ette, tip for human rights in nigeria (thrin) 39 ibid. 40 ibid. 41 the initiative for equal rights, human rights violations based on real or perceived sexual orientation and gender identity in nigeria, 2018 http://www.achpr.org/press/2014/02/d190/ http://www.unaids.org/en/resources/presscentre/pressreleaseandstatementarchive/2014/january/20140114nigeria http://www1.umn.edu/humanrts/gencomm/hrcom20 african customary and religious law review (acarelar) 4 (2023) 66 of legal reprisal.42 people who have been wrongfully arrested do not report these incidents for fear of possible backlash and social stigma.43 thirdly, article 2 and article 3 mandate that ‘states parties take all necessary steps to enable every person to enjoy’ all individual rights recognized in the covenant. this means that states must take all steps necessary ‘to put an end to discriminatory actions, both in the public and the private sector, which impair the equal enjoyment of rights.’44 nigeria’s patriarchal system of society fails to recognize women's sexuality and fosters a culture of silence on issues that affect them.45 many women in nigeria marry men to hide the fact that they are lesbian to avoid persecution.46 this has led to the normalization of violence both gender-based and otherwise against women.47 another factor is the prevalence of backlash both publicly and privately on women.48 reporting violations is therefore low, and in some cases, non-existent, which continues to encourage perpetrators and the suppression of women.49 nigeria fails to fulfill its obligations under article 3 by allowing crimes committed against women and transgender women on the basis of their sexual orientation and gender identity, simply because of their sexual orientation. one particularly heinous crime prevalent in nigeria is ‘corrective rape.’ former un high commissioner for human rights, navi pillay, stated that, ‘corrective rape commonly combines a fundamental lack of respect for women, often amounting to misogyny, with deeply-entrenched homophobia.’50 ‘corrective rape’ is an extreme crime that causes irreparable physical and psychological harm. violence is a common response to women’s inability to pursue heterosexual relationships and this violence is many times meted out through corrective rape.51 violence against lesbian women is prevalent in nigeria and the state is unresponsive.52 many are afraid to report sexual crimes committed against them for fear that the police will perpetuate the abuse or humiliate them.53 women’s access to justice is often impeded by insufficient budget allocations for legal aid, alleged corruption and stereotyping within the judiciary.54 the situation is particularly serious in the northern part of the country, where sharia law is adopted. in northern nigeria there is a lack of civil societies that women can report violations to. further, there are multiple layers of discrimination in these cases. women who are sexual minorities face discrimination for being a woman as well as discrimination related to their sexual orientation, gender identity, and gender expression. these multiple layers of discrimination make it extremely challenging to find out about these cases. again, article 2 of the iccpr provides that ‘each state party to the present covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present covenant, without distinction of any kind,’ including sex or other status.55 similarly, article 26 prohibits discrimination on any ground, including sex or other status. it declares that all persons are ‘equal before the law and are entitled without any discrimination to the equal protection of the law.’ in 1994, the human rights committee held that states are obligated to protect individuals from discrimination on the basis of their sexual orientation in toonen v australia.56 this position is reflected in later decisions of the committee.57 not only 42 ibid. 43 ibid. 44 general comment no. 28. 45 (n, 40) 46 telephone interview with hope alive health awareness initiative (apr. 4, 2019): human rights situation for lesbian, gay, bisexual and transgender (lgbt) persons and sexual rights in nigeria report presented to the un human rights committee 126th session july 1 to july 26 of 201. 47 (n, 40) 48 (n, 40) 49 (n, 40) 50 pillay navi, ‘the shocking reality of homophobic rape’ in the asian age, june 20, 2011. 51keren lehavot and tracy l. simpson, incorporating lesbian and bisexual women into women veterans health priorities, june 27, 2013 52 the initiative for equal rights, human rights violations based on real or perceived sexual orientation and gender identity in nigeria, 2018 53 ibid. 54 committee on the elimination of discrimination against women, concluding observations: nigeria, para. 13, u.n. doc.cedaw/c/nga/co/7-8 (2017) 55 article ii, international covenant on civil and political rights, opened for signature dec. 16, 1966, 999 u.n.t.s. 171 (entered into force mar.23, 1976). 56 communication no. 488/1992 (ccpr/c/50/d/488/1992). 57 see, for example, young v. australia, communication no. 941/2000 (ccpr/c/78/d/941/2000), para. 10.4; x v. colombia, communication no. 1361/2005 (ccpr/c/89/d/1361/2005), para. 9; and concluding observations on mexico (ccpr/c/mex/co/5) para. 21 and uzbekistan (ccpr/c/uzb/co/3), para. 22. iloka, aghadinuno &. obikeze: an appraisal of gay marriage under the nigerian 67 does nigeria fail to protect the rights to non-discrimination and equality, it actively promotes the violation of these rights. as mentioned above, provisions of nigerian criminal law discriminate against sexual minorities and violate the iccpr. further, by contributing to a pervasive climate of homophobia, these laws undermine nigeria’s obligation to protect, respect and fulfill human rights of all individuals under its jurisdiction. thus, rather than adopting legislative or other measures to give effect to the iccpr rights to equality and nondiscrimination, as required by article 2 of the convention, nigeria has adopted legislation that is overtly discriminatory against sexual minorities. these criminal provisions fan the flames of hatred and contempt. these criminal provisions deny individuals the equal protection of the law on grounds of their real or perceived sexual orientation or gender identity for the additional reason that they discourage the reporting of violence and other crimes and they make these individuals vulnerable to extortion and blackmail. impunity is one of the driving forces of the continued violation of people based on their sexual orientation, gender identity, or gender expression in nigeria. sexual minorities find it extremely difficult to approach relevant government agencies for redress, for fear of stigma, more violence and discrimination. this is in direct contravention of article 26 of the iccpr, which provides that everyone is equal before the law and everyone must enjoy the same level of protection under the law. the existence of discriminatory laws provides an atmosphere where violations thrive. it creates a sense of impunity in perpetrators and fear in victims. it is common place for people to prey on people based on their sexual orientation, gender identity, or gender expression, often blackmailing and extorting money from them while leaving them in a state of constant fear and hopelessness. religious and traditional sentiments, discriminatory laws and a hostile social environment have instilled fear in these people, leaving them with a life plagued by limited access to justice.58 lgbt individuals are often reluctant to take legal actions against police violations as this could further make them visible and expose them to stigma and discrimination.59 this discrimination often extends to their family and friends and continues to breed a climate of fear and uncertainty.60 the direct breach of individual rights without proper restitution often leaves a negative impact on people.61 fourthly, articles 19, 21, and 22 of the iccpr respectively guarantee the rights to freedom of expression, assembly, and association. article 19(1) state that everyone has the right to ‘hold opinions without interference.’ article 21 states that ‘the right of peaceful assembly shall be recognized. no restrictions may be placed on the exercise of this right other than those imposed in conformity with the law.’ article 22 states: ‘everyone shall have the right to freedom of association with others.’ individuals in nigeria are denied freedom of association and assembly based on their sexual orientation, gender identity, or gender expression by nigeria’s ssmpa. under this law, ‘the registration of gay clubs, societies and organizations, their sustenance, processions and meetings is prohibited.’ participation in such organizations is criminalized: ‘a person, who registers, operates or participates in gay clubs, societies and organization . . . commits an offence and is liable on conviction to a term of 10 years imprisonment.’ additionally, ‘a person or group of persons who supports the registration, operation and sustenance of gay clubs, societies, organizations, processions or meetings in nigeria commits an offence and is liable on conviction to a term of 10 years imprisonment.’ these provisions criminalize and impose severe penalties for activities that must be protected under the iccpr. this law often affects transgender individuals within nigeria who would love to express themselves, but for fear of being misidentified as having what nigeria considers an unacceptable sexual orientation, their expression becomes hindered.62 further, many lgbt individuals believe that transgender individuals who are expressive of their gender identity should not be allowed to come near them for fear of being outed.63 the human rights committee has consistently promoted these rights for all in cases concerning sexual orientation, gender identity, and gender expression. for example, irina fedotova claimed to be a victim of a violation by the russian federation of her rights under article 19 and article 26 of the iccpr.64 the author displayed posters that declared ‘homosexuality is normal’ and ‘i am proud of my homosexuality’ near a secondary school building in ryazan. fedotova was stopped by police and ordered to pay a fine of 1’500 russian roubles. fedotova brought a complaint to the human rights committee, which concluded that the conviction of an administrative offence for ‘propaganda of homosexuality among minors’ on 58 the initiative for equal rights, human rights violations based on real or perceived sexual orientation and gender identity in nigeria, 2018 59 the initiative for equal rights, human rights violations based on real or perceived sexual orientation and gender identity in nigeria, 2018 60 ibid. 61 ibid. 62 mx. emmanuella david-ette, tip for human rights in nigeria (thrin) 63 ibid. 64 irina fedotova vs. russian federation, communication no. 1932/2010, u.n. doc. ccpr/c/106/d/1932/2010 (2012). african customary and religious law review (acarelar) 4 (2023) 68 the basis of the ambiguous and discriminatory section 3.10 of the ryazan region law, amounted to a violation of fedotova’s rights under article 19, paragraph 2, read in conjunction with article 26 of the covenant. similarly, on 16 december 2009, sergei androsenko, together with other activists, handed a petition to representatives of the embassy of the islamic republic of iran in minsk calling for an end to punishment of homosexuals in that country.65 after the petition was delivered, the author, together with others, held a peaceful assembly (demonstration) during which he held up a poster that read ‘stop killings of gays in iran.’ in about 15 minutes, the author was apprehended by the police and taken to the department of internal affairs of the soviet district, where he was charged with an administrative offence under article 23.34, paragraph 2, of the code of administrative offences of belarus. the committee concluded that belarus violated androsenko’s rights under articles 19 and 21 of the iccpr. from 2006 to 2008, nikolai alekseev, a homosexual and a human rights activist, together with other activists, tried to organize a number of peaceful assemblies (gay pride marches) in moscow, but they were all banned by the municipal authorities.66 alekseev filed a complaint with the human rights committee, asserting that the russia federation violated his right to peaceful assembly as protected by article 21 of the iccpr. in 2013, the committee decided in alekseev’s favor, stating that the right of peaceful assembly, as guaranteed under article 21 of the iccpr, ‘is essential for the public expression of a person’s views and opinions, and indispensable in a democratic society.’ fifthly, article 17(1) iccpr states that ‘no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, or to unlawful attacks on his honor and reputation.’ moreover, article 17(2) guarantees this right as against private individuals and imposes a duty on the state ‘to adopt legislative and other measures to give effect to the prohibition against such interferences and attacks.’ nigeria’s laws criminalizing same-sex conduct violate the right to privacy under the hrc’s jurisprudence as established in toonen v australia67. denial of status of transgender people, including, but not limited to, deprivation of the right to change name and sex, is a violation of the right to privacy. similarly, the human rights committee decided in favor of a female transgender in australia who claimed that the refusal to change her sex on her birth certificate, unless she divorced from her spouse, constituted a direct arbitrary interference with her right to privacy under article 17 of the covenant.68 moreover, article 17 requires that states take positive measures to protect the right to privacy. nigeria does not allow transgender people to rectify their legal name and gender markers on official documents. transgender persons must use official documents that do not reflect their identity and are therefore exposed to great discrimination and obstacles to their ability to access services essential to the realization of fundamental rights. of course marriage certificates that fall under the right to family life cannot be issued to persons who have conducted gay marriage. morality and the lawthe moral perspective while ethics/morality is distinct from the law, the law is normally tested against ethics/moral parameters to know whether the law is fair, good or just.69 it is in the light of this that the constitution empowers the state to make laws that protect the morality of the citizenry even at the expense of human rights in certain circumstances under section 45(1) (a) of the cfrn 1999. section 45(1)(a) cfrn 1999 provides as follows: ‘nothing in sections 37, 38, 39, 40 and 41 of this constitution shall invalidate any law that is reasonably justifiable in a democratic society (a) in the interest of defense, public safety, public order, public morality or public health, or…’ that the moral value system of a people needs protection was pronounced per viscount simonds in the celebrated case of shaw v dpp70 where the appellant had published a 'ladies directory' which listed contact details of prostitutes, the services they offered and nude pictures. he was convicted of conspiracy to corrupt public morals, living on the earnings of prostitution and an offence under the obscene publications act 1959. the court held inter alia: in the sphere of criminal law, i entertain no doubt that there remains in the courts of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the state and it is their duty to guard against attacks which may be more insidious because they are novel and unprepared for. 65 sergei androsenko vs. belarus, communication no. 2092/2011, u.n. doc. ccpr/c/116/d/2092/2011 (2016). 66 nikolai alekseev vs. russian federation, communication no. 1873/2009, u.n. doc. ccpr/c/109/d/1873/2009 (2013). 67 (n, 55) 68 g. v. australia, communication no. 2172/2012, u.n. doc. ccpr/c/119/d/2172/2012 (2017). 69 washington v. glucksberg 521 u.s. 702, 720-21 (1992) 70 1962 ac 220. iloka, aghadinuno &. obikeze: an appraisal of gay marriage under the nigerian 69 medical perspective medicine is scientific and as such, does not work with sentiments or beliefs but with facts that are proven empirically. there are many illnesses that are associated with same sex relationships. longmore and others states that kaposi’s sarcoma, a cancer of connective tissues of the body mostly affects homosexual or bisexual men.71 also, baliga avers that herpes zoster syndrome (shingles), a painful blistering skin eruption occurs at least 7 times more frequently with homosexual men.72 hepatitis c, a virus that causes severe liver damage is higher among homosexuals compared to their heterosexual counterparts.73 furthermore, peschke asserts that ‘homosexuals also are at a high risk group for aids.74 contagion is caused primarily by anal intercourse’. other organisms causing infections of the stomach and intestines which manifests as diarrhea such as entamoeba histolytica, shigella specie, campylobacter specie and cryptosporidium specie have all been associated with homosexual men. the same sex marriage (prohibition) act is therefore to the best interest of nigerians medically as it tends to deter same sex relationships and its consequent medical hazards. 4. conclusion and recommendations a lot of things may be said about the ssmpa, but it remains undisputable that the act is a reflection of the moral value system of nigeria. this truth was demonstrated in the polls conducted by noi polls75 in 2015 in conjunction with the initiative for equal rights (tiers).76 according to the poll, 87 percent of nigerians support the ssmpa and the punitive measures provided under the act. 81 percent believed homosexuals should not have equal rights which would directly relate to the lgbtq+ relations not having the same status with heterosexual relationships or marriage. 90 percent also believed lesbian, gay, and bisexual people should not be allowed to hold lgbtq meetings or establish lgbtq organizations. against this backdrop, it would be apt to say that the ssmpa is in line with the nigerian volkgeist and therefore justified from the historical school praxis.77 nigeria should not allow gay/same sex marriages simply because same is obtainable in other jurisdictions. the law of our land should be a representation of the principles and ethics that guide us and according to the above named poll; the citizens of nigeria have shown their attitude towards the said same sex/gay marriage. for example, in australia, australians voted in favor of legalizing same-sex marriage, by a 62% to 38% margin, in a non-binding, nationwide referendum before the law came to be in their land. again, more than six-in-ten irish voters (62%) voted ‘yes’ to amend the constitution of ireland to say that ‘marriage may be contracted in accordance with law by two persons without distinction as to their sex. the measure won approval by a 77-44 margin in new zealand’s unicameral legislature. that being said, it is recommended that: a. even though same sex/gay marriages are unacceptable in nigeria, persons categorized in the lgbtq+ group are still humans and should be protected by law from discrimination that would lead to torture or inhumane treatment and the likes. b. that the ssmpa be amended to capture the face of emerging multiplicity of gender and sexual orientations because the absence of this, may defeat, the mischief the act could have cured. c. gay marriage is against the natural law of marriage by god, no country should legalize guy marriage knowing fully well that family is the smallest unit in the society. if same sex is legalized what it denotes is complete failure of the marriage structure, hence a total disorder in the society, d. there is need for restructuring and reorientation of the law enforcement agents on the need to protect human rights while discharging their official duties. e. the same sex marriage prohibition act should be amended to stipulate the test to grounding an allegation of same sex under the law to avoid overzealous enforcement agencies using the law as tool to abuse the rights of nigeria. 71 longmore, m., wilkinson, i.b., davidson, e.h., foulkes, a. & mafi, a.r, oxford handbook of clinical medicine 8th ed. italy: l.e.g.o. 2010 72 baliga, r.r, 250 cases in clinical medicine, 4th ed. edinburgh: saunders elsevier, 2010. 73 s. davidson, davidson’s principles and practice of medicine 20th ed. china: elsevier 2010 74 k.h. peschke, christian ethics: moral theology in the light of vatican ii, vol. 2, bangalore: theological publications, 1999. 75 noipolls, june 11, 2013, http://www.noipolls.com/root/index.php?pid= 287&ptid=1&parentid=66 accessed 23 august 2022 76 a nigerian based ngo < http://theinitiativeforequalrights.org/.> accessed 23 august 2022. 77 robert rodes, ‘on the historical school of jurisprudence,’ (49) am. j. juris.; 165, (2004) http://www.noipolls.com/root/index.php?pid=%20287&ptid=1&parentid=66 http://theinitiativeforequalrights.org/ african customary and religious law review (acarelar) 4 (2023) 78 constitutional protection of local government finances: an imperative to sustainable development of the rural areas in nigeria* abstract prior to the local government reforms in 1976, the various segments of the country operated different kinds of grass root administration. the north operated the native authority system and the south operated the divisional system. the 1976 reforms unified the various grass-root administrations into the local government system for the whole country. this saw to the establishment of the local government as a third tier of government. there is no denying the fact that in the 1970’ s and 1980’ s, the local government unit of administration blossomed with activities and the rural man can feel the pulse of government. the state and federal government may be far from him, but he is not too worried because he can see dividends of democracy, trunk c roads are regularly maintained, fertilizers are provided just to mention a few. the local government headquarters were beaming with activities. however, with the advent of constitutional democracy of the fourth republic in 1999, the developmental strides of the local government became comatose. this is largely due to the fact that the finances of local government were hijacked by the state governments. the local government headquarters suddenly became a shadow of itself. only salaries are paid and so staff only come to the headquarters at the end of the month to collect their salaries which in some cases are paid on percentage. constitutional guarantees to the finances of local government and how they can be sustained for the needed development of rural areas is the crux of this paper. this study examined the laudable objectives for the establishment of the local government system, how they impacted on the development of local governments. this study adopted the doctrinal method of research and made a finding that upon realizing how the states hijacking of local government finances have impacted negatively on local governments, the federal government through executive order 10 made effort to safeguard the local government system by protecting the finances of local governments. if the rural areas should witness developments again, there is the need to plug the loopholes in the constitution associated with the looting of local government finances. this study makes a case for a local government ombudsman that will be saddled with the responsibility of protecting the local government system and by extension the local government finances. keywords: constitutional protection, finances, imperative, sustainable development, rural areas. 1. introduction the system of local government as a third tier of government presently constituted came into being in 1976 through the reforms carried out by the obasanjo military regime, through the instrumentality of the dasuki panel recommendation. prior to the 1976 unified local government system for the whole country, the various regions in nigeria operated different systems of local administration. the northern region operated the native administration. the east and western regions operated the divisional system and with the creation of midwestern region, it operated the divisional system1. the military administration of olusegun obasanjo established the unified local government system in nigeria. the number of local governments created in 1976 were 299 by virtue of the dasuki committee recommendation, and later the obasanjo administration created more local government and made it 336. the dasuki committee recommended the following functions which were accepted by the then federal military government: i. basic environmental sanitation and other aspects of preventive health care. ii. provision of maternity centres, dispensaries, leprosy clinics and health centres. iii. roads and drainages, excluding federal and state roads. iv. construction and maintenance of primary schools; and v. maintenance of law and order2. the dasuki committee also recommended and the government accepted the following as the primary responsibilities of local government. a. making appropriate services and development activities responsive to local wishes and initiatives by devolving or delegating them to local bodies of representatives. ⃰by danjuma g. shigaba, phd, senior lecturer, department of public and international law, faculty of law, nasarawa state university, keffi, nasarawa state, nigeria; ⃰alexander a. epu, lecturer, department of public and international law, faculty of law, nasarawa state university, keffi, nasarawa state, nigeria; and ⃰ hilary okoloma, lecturer, department of international law and jurisprudence, faculty of law, nnamdi azikiwe university awka anambra state 1 o. o adeyemi, local government administration in nigeria: a historical perspective (journal of public administration and governance www.researchgate.net > accessed on 16/5/21 2 ibid. http://www.researchgate.net/ shigaba, epu & okoloma: constitutional protection of local government finances: an imperative to sustainable development of the rural areas in nigeria 79 b. facilitating the exercise of democratic self government close to the local level of our society and encouraging initiatives and leadership potentials; and c. mobilizing human and material resources through the involvement of members of the public in their local development3. in order to achieve its aim of grass-root development, the dasuki committee recommended the allocation of certain percentage of the revenue of the federation to the local governments4. through state edicts, the powers and functions of local government councils were defined and these include maintenance of law and order, levy of rates and fees in specified items such as bicycles, canoes etc, provision and maintenance of roads and markets, motor parks, health services etc. from 1978, the rural areas witness tremendous development, as they set to work in the area of their mandate. local government headquarters opened up to planned towns with roads and other amenities being put in place. with the coming into effect of the 2nd republic, the local government system was guaranteed in the 1979 constitution. the constitution provides as follows: the system of local government by democratically elected local government councils is under this constitution guaranteed; and accordingly, the government, of every state shall subject to section 8 of this constitution , ensure their existence under a law which provides for the establishment, structure, composition, finance and functions of such councils5. it shall be the duty of a local government council within the state to participate in economic planning and development of its area of sphere and to this end are economic planning board shall be established by a law enacted by the house of assembly of the state6. the constitutional provision is meant to guarantee sustainable rural development. the operation of the 1979 constitution took 4 years 3 months and it was toppled with the military coup of the then major general mohammadu buhari on 31st december 1983. the military regimes before the coming into effect of the 1999 constitution continued with the good intendment of local government creation i.e for grass root development. thus in 1986, the babangida military administration inaugurated a political bureau to fashion out a political future for nigeria including the future of the local government system. the bureau agenda for local government came under the sub title of “ local government for development” 7. some of the major recommendations of the bureau which were implemented by the babangida regime were: i. abolition of the title of sole administrator and its replacement with “ chairmanship” and “ councillorship” system, thus creating an executive chairman and a legislative arm at the local government. ii. creation of a directorate for local government in each state which stipulates fiscal structure and internal audit section for proper accountability of local government finances. iii. direct allocation of revenue from the federation account to the local government account unlike the hitherto practice of routing it through the states. in fact, the babangida’ s regime had a favourable disposition to local government administration thus it made elaborate provisions for a local government system in the now aborted 1989 constitution. the said constitution provided as follows: section 7 (1) the system of local government by democratically elected local government councils is under this constitution guaranteed. (2) there shall be 449 local government areas in nigeria as named in the second column of part i of the first schedule to this constitution and each of the local government areas shall be the only unit in respect of which the government of a state is empowered to establish an authority for the purpose of local government. (3) without prejudice to the provisions of sub-section (2) of this section, the government of a state may by law create for any local government area up to a maximum of 7 development areas having regard to such factors as common historical and traditional ties, geographical contiguity and administrative expedience. (5) it shall be the duty of local government within the state to participate in economic planning and development of the local government area concerned and to this end a joint economic planning board shall be established by law enacted by the house of assembly of the state. 3 ibid. 4 ibid. 5 section 7 (1) of the 1979 constitution, federal republic of nigeria. 6 section 7 (3), ibid. 7 e. j. egbe, native authorities and local government reforms in nigeria since 2014 (ivsr journal of humanities and social service) available @ www.iosrjournal.org accessed on 16/5/2021 http://www.iosrjournal.org/ african customary and religious law review (acarelar) 4 (2023) 80 (7) the functions to be conferred by law upon local governments shall include those set out in part i of the fourth schedule of this constitution. (8) subject to the provision of this constitution – a. the national assembly shall make provisions for statutory allocation of public revenue to local governments in the federation; and b. the house of assembly of a state shall make provisions for statutory allocation of public revenue to local governments within the state.’ in its continued legacy, the abdulsalam regime enacted the taxes and levies (approved list for collection) decree8 which made elaborate allocation of taxable areas to the local government; all in a bid to guarantee funding to local governments. these include: 1. shops and kiosks 2. tenement rates 3. on and off liquor license fees 4. slaughter slabs fees 5. marriages, birth and death registration fees. 6. naming of street registration fees excluding any street in the state capital 7. right of occupancy fees on lands in rural areas excluding those collectable by federal and state government. 8. market taxes and levies excluding any market where state finance is involved. 9. motor parks levies 10. domestic animal license fees 11. wheel barrow and cart fees 12. cattle tax payable by cattle farmers only 13. merriment and road closure levy 14. radio and television transmitters 15. vehicle radio license fees (to be imposed by the local government of the state in which the car is registered). 16. wrong parking charges 17. sewage and refuse disposal fees 18. customary burial ground permit fee 19. religious places establishment permit fee 20. signboard and advertisement permit fee9 the above areas of revenue acquisition for local government were maintained even under the 4th republic between 1999 – 2007. however, from 2007 to the present, there has been a great erosion on local government finances by state governments using the same 1999 constitution to the detriment of rural areas development. in fact, local government as presently constituted is a shadow of itself. they are just like a department of the state government, not an independent 3rd tier of government. this necessitated the enactment of the nigeria financial intelligence unit act 2018, which unit enacted the rules on local government finances by states. the abuse of local government finances by states has no doubt negatively impacted on grass root development. this paper therefore sought to engage a discourse in how the finances of local government can be constitutionally protected to enhance sustainable development in the rural areas in nigeria. 2. conceptual clarifications in this discourse, there are concepts worth defining for a proper understanding of the context in which they are used in this discourse. the concepts include ‘constitutional protection” , ‘local government’; ‘finances’; sustainable development” ; and “ rural areas” . constitutional protection ‘constitutional protection’ has two words, “ constitutional’ and “ protection” . ‘constitutional” according to black’s law dictionary is an adjective relating to a constitution. it means that which is proper and valid under a constitution10. protection” according to dictionary.com is the act of protecting or the state of being protected; preservation from injury or harm11. according to black’s law dictionary, 9th edition, constitutional protection 8 taxes and levies (approved list for collection) decree, no. 21 1998. 9 these taxable areas were later inserted in the 4th schedule of the 1999 constitution. 10 b.a. garner, (editor in chief) (minnersota, west publishing co, 9th edition, 2004) p. 354 11see b. kariger & d. fierro, dictionary.com meanings & definitions of english words http://www.dictionary.com/ accessed on 16th may 2023 shigaba, epu & okoloma: constitutional protection of local government finances: an imperative to sustainable development of the rural areas in nigeria 81 is akin to constitutional freedom i.e. a basic liberty guaranteed by the constitution12 or bill of rights, such as the freedom of speech. in this paper, “ constitutional protection” is therefore the preservation or protection of local government finances enshrined in the constitution such that the states cannot temper with it. local government local government according to section 328 of the constitution of the federal republic of nigeria 1999 (as amended) includes an area council. without doubt, this constitutional definition is inadequate, and so we need to resort to other definitions. the black’s law dictionary defines local government as the government of a particular locality, such as a city, country or parish; a governing body at a lower level than the state government13. according to akande local government is that level of government closest to the people and it is vested with same powers to exercise control over the affairs of people in its domain14. finances according to corporate finance institute.com finance is the management of money and includes activities such as investing, borrowing, lending, budgeting. saving and transacting15. britanica.com on the other hand defines finance as the process of raising funds or capital for any kind of expenditure16. in the context of this paper finances means the funds constitutionally guaranteed to local government in nigeria. sustainable development according to britanica.com, sustainable development is development that meets the needs of the present without compromising the ability of future generation to meet their own needs17. it is the quest for sustainable development that the united nation has developed the sustainable development goals (sdg’ s) at the united nations conference on sustainable development in rio de janeiro in 2012. the objective was to produce a set of universal goals that meet the urgent environmental, political and economic challenges facing our world. the sdgs replace the millennium development goals (mdgs), which started a global effort in 2000 to tackle the indignity of poverty. the mdgs established measurable, universally-agreed objectives for tackling extreme poverty and hunger, preventing deadly diseases, and expanding primary education to all children, among other development priorities18. in the context of this paper for sustainable development to occur at the local government level, its finances should be constitutionally protected. rural areas according to the health resources and services administration of the united states department of health and human services defines the word rural as encompassing all population, housing and territory not included within an urban area mostly characterized by low population density small settlements; agricultural areas and forestry19. in the context of this paper, rural areas is where the local governments are mostly situated with the exception of city local governments. for the rural areas to be economically developed, the finances of local government must be protected through the constitution. 3. finances of local government under the constitution of the federal republic of nigeria 1999 the constitution of the federal republic of nigeria 1999 establishes the local government system by virtue of section 7(1) thereof. it provides thus: the system of local government by democratically elected local government council is under this constitution guaranteed; and accordingly the government of every state shall subject to section 8 of this constitution , ensure their existence under a law which provides for the establishment, structure, composition, finance and function of such council20. by the above provisions, states are enjoined to enact laws which shall guarantee the existence of local governments and the said law shall spell out their structure, composition, finances and functions of such council. by subsection 3 thereof, it provides thus: 12 garner, (n.11) p. 354. 13 ibid, p. 764, 1022. 14 i.f. akande, local government law and policy in nigeria: cases and materials (lagos, malthouse press ltd, 2014) p. 24 15 see www.cooperatefinanceinstitute.com > accessed on 16/5/21 16 see www.britanica.com > accessed on 16/5/21 17 ibid. 18 united nations: https://www.undp.org/sdg-accelerator/background-goals accessed on 16th may 2023 19 see www.hrsa.gov > accessed on 16/5/21 20 section 7(1) constitution of the federal republic of nigeria, 1999. http://www.cooperatefinanceinstitute.com/ http://www.britanica.com/ http://www.hrsa.gov/ african customary and religious law review (acarelar) 4 (2023) 82 it shall be the duty of a local government council within the state to participate in economic planning and development of the areas referred to in subsection (2) of this section and to this end an economic planning board shall be established by a law enacted by the house of assembly of the state. for its function section 7 (5), provides that emphatically as follows:‘the functions to be conferred by law upon local government council shall include those set out in the fourth schedule to this constitution. the fourth schedule to the 1999 constitution enumerated the following functions to local governments. 1. the main functions of a local government council are as follows: a. the consideration and the making of recommendations to a state commission on economic planning or any similar body on i. the economic development of the state, particularly in so far as the areas of authority of the council and of the state are affected, and ii. proposals made by the said commission or body; b. collection of rates, radio and television licenses; c. establishment and maintenance of cemeteries, burial ground and homes for the destitute or infirm; d. licensing of bicycles, trucks (other than mechanically propelled trucks, canoes, wheel barrows and carts; e. establishment, maintenance and regulation of slaughter houses, slaughter slabs, markets, motor parks and public convenience; f. construction and maintenance of roads, streets, street lightings, drains and other public highways, parks, gardens, open spaces, or such facilities as may be prescribed from time to time by the house of assembly of a state; g. naming of roads and streets and numbering of houses; h. provision and maintenance of public conveniences, sewage and refuse disposal; i. registration of all births, death and marriages; j. assessment of privately owned houses or tenements for the purpose of levying such rates as may be prescribed by the houses of assembly of a state; and k. control and regulation of – i. out-door advertising and hoarding. ii. movement and keeping of pets of all description. iii. shops and kiosks, iv. restaurants, bakeries and other places for sale of food to the public, v. laundries, and vi. licensing, regulation and control of the sale of liquor. 2. the functions of a local government council shall include participation of such council on the government of a state in respect of the following matters – a. the provision and maintenance of primary, adult and vocational education; b. the development of agriculture and natural resources, other than the exploitation of minerals; c. the provision and maintenance of health services; and d. such other functions as may be conferred on a local government council by the house of assembly of the state. in order to function effectively, the 1999 constitution provided for finances for local governments. firstly, section 7 (6) of the 1999 constitution provides as follows: “ subject to the provisions of this constitution a. the national assembly shall make provisions for statutory allocation of public revenue to local government council in the federation; and b. the house of assembly of a state shall make provisions for statutory allocation of public revenue to local government counsels within the state. furthermore, section 162 (3) (5) (6) of the 1999 constitution provides as follows: (1) any amount standing to the credit of the federation account shall be distributed among the federal and state governments and the local governments and the local government councils in each state on such terms and in such manner as may be prescribed by the national assembly. (2) the amount standing to the credit of local government councils in the federation account shall also be allocated to the states for the benefit of their local government councils on such terms and in such manner as may be prescribed by the national assembly. shigaba, epu & okoloma: constitutional protection of local government finances: an imperative to sustainable development of the rural areas in nigeria 83 (3) each state shall maintain a special account to be called “ state joint local government account” into which shall be paid all allocation to the local government councils of the state from the federation account and from the government of the state. (4) each state shall pay to local government councils in its area of jurisdiction such proportion of its total revenue on such terms and in such manner as may be prescribed by the national assembly. (5) the amount standing to the credit of local government councils of a state shall be distributed among the local government councils of that state in such terms and in such manners as may be prescribed by the house of assembly of the state. from the foregoing, it can be seen that the constitution has made elaborate provisions for local government finances for it to develop the grass roots. it is in pursuance of these constitutional provisions that the national assembly enacted the allocation of revenue (federation account, etc.) act which provides in section 1 thereof as follows: the amount standing to the credit of the federation account (as specified in subsection (1) of section 162 of the constitution of the federal republic of nigeria 1999) shall be distributed by the federal government among the various governments in nigeria and the funds concerned on the following basis, that is to say a. the federal government 48.5 percent; b. the state government 24 percent; c. the local government councils 20 percent d. special funds 7.5 percent; e. federal capital territory,1 percent of the federation account. (a) (ii) development of the mineral producing areas, 3 percent of the revenue accruing to the federation account derived from minerals. (b) (iii) general ecological problems, 2 percent of the federation account (c) (iv) derivation, 1 percent of the revenue accruing to the federation account derived from minerals. (d) (v) stabilization account 0.5 percent of the federation accounts plus the revenue arising out of using mineral revenue, instead of the federation account as the base for allocation of the mineral producing areas and derivation. section 4 (1) provides as follows: ‘in addition to the allocation made from the federation account under section 1 of this act, to local government account (as specified in subsection 5 of section 162 of the constitution of the federal republic of nigeria 1999) in each quarter of the financial year a sum representing 10 percent of the internally generated revenue for that quarter of the state conserved. (2) the 10 percent of each state’s internally generated revenue payable to the state under the provision of subsection (1) of this section shall be distributed among the local government in state on such terms and in such manner as the state house of assembly may prescribe. from the above provisions, the sources of revenue for local governments should be derived from the following: 1. from 20% meant for local governments from the federation account. 2. from 10% meant for local governments from the state internally generated revenue. 3. from taxes, levies on items on the 4th schedule to the constitution. 4. from other sources such as grants from state/federal government and international organizations. the above finance is enough to fund the much needed development of the rural areas. however, the reverse is the case due to erosion of local government funds by the states. 4. erosion of local government finances at the beginning of the 4th republic in 1999 the finances of local governments were protected as such finances were disbursed to them in accordance with extant laws. however, the erosion into local government finances started when lagos state first created what is called local council development areas in 200421. these local council development areas were to be funded from the funds of the constitutional recognized local government councils. other states soon followed. nasarawa state for example also created 18 “ development areas. although tagged development areas, it is safe to argue that they are not really meant to develop the rural areas. rather they are objects of political maneuvering aimed at broadening the political control of the governor and to siphon local government finances. the states through the instrumentality of the state joint local government account delved into these funds for other uses other than what is meant i.e the finding of local governments. the creation of development areas was tested in the case of ag lagos state vs. ag of the 21 see www.africaresearchinstitute.org > accessed on 17/5/21 http://www.africaresearchinstitute.org/ african customary and religious law review (acarelar) 4 (2023) 84 federation22. the dispute arose out of a circular letter addressed to all the governors of the states and all the local government chairmen in the country by the minister of state in the federal ministry of finance. in the said circular the minister of state informed the governors and the chairmen of the withholding of funds meant for local government in lagos state. the main issues for consideration were whether the president has the constitutional power to control funds from distributable pool account created by virtue of section 162 (1) of the 1999 constitution; and whether the new local council development areas were constitutional. the supreme court inter alia held as follows: 1. that the laws enacted by lagos state that is law no 5 of 2002 and that of 2004 are both valid laws since the house of assembly of lagos state has the power under section 4 subsection (6) and section 7 subsection (1) and section 8 subsection (3) of the constitution to legislate in respect of the creation of new local government areas and local government councils which were one and the same for the purpose of section 162 (3) (5) of the constitution. however, in the context of section 8 (5) and section 3 (6), such laws cannot be operative or have full effect until the national assembly makes the necessary amendment of section 3 (6) and part 1 of the first schedule to the constitution. the effect of this is that the laws are valid but inchoate until the necessary steps as provided by the constitution are taken by the national assembly. 2. it does not appear to be that there is any power conferred on the president to decide to withhold any allocation on the basis of a conceived breach of the constitution by any of the three tiers. it seems to me also that the allocation principle of funds to local government councils in each state is such that the amount payable does not increase simply because a house of assembly has created more local government areas in the state. to take that into account will simply encourage the proliferation of local government areas for the main aim of earning more revenue. that cannot be right or equitable. section 162 (2) makes it clear that the national assembly will take into account in the allocation principle especially those of population, equality of states, internal revenue generation, land mass, terrain as well as population density. since that is the position, the circumstances of the creation of more local government areas by a state ought not to lead to withholding of the normal funds to which a state government is entitled to receive on behalf of the local government councils in the state. the usual allocation to which a state was entitled before the creation of more local government areas ought not to be a point of dispute. it must continue to receive that allocation on behalf of the local government areas until there is a new general allocation to formulas approved by the national assembly in its collective wisdom. 3. failure of the state government to for example open and maintain the state joint local government account or not to pay a percentage of its money into the said account for use other than for what they are meant would constitute a breach of the relevant provisions of the constitution. any such breach would in my view be actionable in a court of law and cannot be enforced by executive sanction unless such is provided for in any act passed by the national assembly under section 162(5) and 162(7) of the constitution. as it appears the national assembly is yet to pass any such laws, it will be unconstitutional for the president or any arm of the executive to assume the role not specifically conferred on him under the constitution. from the above decision, it is clear that the states can create additional local government or development area councils but will only be inchoate. they can only be operative and entitled to local governments funds when the national assembly makes the necessary consequential provisions with respect to the names and headquarters of the local governments. that the federal government cannot withhold the funds meant to local government to the states who usually receive the said funds on behalf of the local government. that where there is a breach by the states on the use of local government funds the only thing that can be done is to go to court for redress. that the national assembly can by an act provide for how breaches of allocation of local government funds to local government can be enforced. it is disheartening to note that since 2004, after the above judgment, the national assembly did not take advantage of the judgment to enact a law which will provide for direct allocation to local government of its funds and what is to be done to states which hijack the said funds. with the affirmation of the validity of local council development areas by the supreme court in a.g lagos state vs. a.g of the federation23 the states perfected the further erosion into local government funds. they now appoint cronies as local government chairmen who cannot challenge them. they hardly conduct local government election but rather appoint their political godsons as members of caretaker committees or transitional committees etc. the states continued to erode on local governments funds through what they term 22 (2004) 20 nscqr 214 23 supra shigaba, epu & okoloma: constitutional protection of local government finances: an imperative to sustainable development of the rural areas in nigeria 85 first line charges which include: local government education authority gross salary, local government education authority over heads, total education funds payable, pension fund allowances, training fund and traditional rulers. again, through the state joint local government accounts, states have come out with all kinds of items which they use to drain local government funds. these are environmental sanitation agencies, aids committee, state primary health care etc24. with such deduction by the states from the state joint local government account, there is little left to the local governments to develop the grass roots. 5. local government finances and sustainable development in rural areas the local governments in nigeria have their sources of revenue. these include: a) federal allocation i.e., each local government is entitled to a share from the 20% meant for all the local governments in nigeria b) 10% of state internally generated revenue25 c) revenue derived from its itemized subject matters as enshrined in the 4th schedule to the constitution of the federal republic of nigeria. the objectives of creating local government in 1976 include: a) to provide democratic and accountable government for local governments. b) to ensure the provisions of services to communities in a sustainable manner. c) to promote social and economic developments. d) to promote a safe and healthy environment. e) to encourage the involvement of communities and community organization in the matter of local governments. according to brundtland report, sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs” 26 sustainable development aims at meeting human development goals. the desired results is a society where living conditions and resources meet human needs. at the local government level therefore what they need are physical infrastructure such as trunk c road, town and village planning, primary health care, primary education, electricity, pipe borne water, building of markets and neighborhood mini market, and facilities etc. in point of fact, it is at the local government level that the sustainable development goals of the united nations will best be realized27. if revenue meant for local government are channeled to them, a well intention local government council can meet the needs of the local government and local government participation will increase. it will boost economic participation by local people with the attendant increase in wealth to the local people. however, in nigeria, what we find is erosion into local government finances. the federal allocation is diverted by the state governments, the 10% statutory allocation from the states are not given to them. they are not even allowed to derive revenue from its constitutionally listed subject matters from where they can generate revenue. it is therefore imperative to protect local government finances from state government in order to have sustainable developments in rural areas. 6. challenges and prospects of protecting local government finances during the 2017 constitutional review, the national assembly passed a constitutional amendment bill proposing local government autonomy including fiscal autonomy, to be an independent tier of government. however, the bill cannot become law until it goes to all the houses of the states assemblies for assent in line with section 9 (2) of the 1999 constitution which provides thus: an act of the national assembly for the alteration of this constitution, not being an act to which section 8 of this constitution applies, shall not be passed on either house of the national assembly unless the proposal is supported by the votes of not less two-thirds majority of all the members of that house and approved by resolution of the houses of assembly of not less than two thirds of all the states. when the bill went to the states, the governors made sure that the bill did not meet the constitutional requirement and so could not see the light of the day. the funds of local government could not be protected. 24 m.i. ugbudu, the nigerian financial intelligence unit (nfiu) and the financial autonomy of local governments in nigeria: issues and challenges (nigerian journal of administrative and political studies, vol 5, no 1, department of political science, benue state university, makurdi > accessed 17/5/21 25 see section 162 of the 1999 constitution as amended. international institute for sustainable development – www.iisd.org>mccnandgoals>accessedon17/5/21 27 at the local government level the sdgs that will best be realized include poverty reduction, zero hunger, good health, quality education, gender equality, clean water and sanitation, security and peace and justice. african customary and religious law review (acarelar) 4 (2023) 86 however, in 2019, the nigeria intelligence unit (nfiu) issued guidelines to protect local government finances tagged. guidelines to reduce vulnerabilities created by cash withdrawals from local government funds throughout nigeria” which came into effect on 1st june 2019. the guidelines include: 1. barring state governors from interfering with statutory allocation accruing to the local government directly from the federation account. 2. local government allocations are to go to their respective bank accounts. 3. the amount standing to the credit of local government council of the states shall be distributed among the local government councils of the states and not for other purposes. 4. provides for a limited cash withdrawal of ₦500, 000 for all 774 local government in the country. any transaction above this should go vide cheques or e-transfer. the senate and the national union of local government employees (nulge) applauded this gesture, however the governors vehemently opposed to it. they have questioned the constitutionality of the nfiu guidelines on the premise that the nfiu act 2018 did not give the unit the power to enact the said guidelines, that the nfui acted out of its mandate and that the guideline are an infringement of states constitutional rights under section 162 (5) (6) of the constitution. 7. conclusion and recommendations the local government system has come to stay having been guaranteed in successive constitutions. the finances for their operation has also been guaranteed as outlined by section 162 of the 1999 constitution, the 4th schedule to the constitution and the allocation of finances (federation account etc) act. however, the governors have exploited loopholes in section 162 (5) (6) of the constitution and the case of ag lagos v. ag federation to deny local governments of their constitutionally guaranteed funds. it is indisputable that for the mandate of local government to be achieved and for local government to remain relevant, conscious effort need to be done to protect local government finances if there should be sustainable development in the rural areas. hence, conscious effort is required to restore their financial independence, or else the much needed development at the rural areas will be a mirage. against the above discourse there is need to protect the finances of local government in nigeria. we suggest the following as means of protecting local government finances in nigeria. i. creation of local government constitutional ombudsman to assert the rights of local government to fiscal independence and to checkmate the incessant interference by the governors of local government finances. ii. amendment of section 9 (2) of the 1999 constitution to provide for simple majority of the states houses of assembly in matter concerning local governments. iii. the president should use his power under section 315 (1) (2) of the constitution which gives him the power to modify existing laws. by this, section 162 (5) and (6) of the constitution will be modified to give fiscal independence to local governments. iv. the national assembly should heed to the supreme court advise in ag lagos v. ag federation to enact a law which will provide for how breaches on local government disbursement of its finances will be curbed. v. the creation of states and local government economic boards should be made mandatory by the provision of the constitution with the mandate of outlining and executing economic development plans to local governments28. this will naturally attract funds for the said board. 28 just as we have the niger delta development commission (nddc) which was created to address infrastructural development of the niger delta states. ibe & onyekachi: proving substantial non-compliance in election petition under the nigerian electoral act: a mirage or a reality? page | 64 proving substantial non-compliance in election petition under the nigerian electoral act: a mirage or a reality?* abstract elections petitions in nigeria, particularly those challenging the outcome of elections on the ground of substantial non-compliance to the provisions of the electoral act fail more than they succeed. while it has become almost impossible to prove the said ground of substantial non-compliance, there is some ease and possibility in proving the other four grounds provided for when they are raised in an election petition. this problem seems traceable to the electoral act regime and the requirement of proof for allegation of substantial non-compliance in election cases. this paper examined the difficulty in proving the ground of substantial non-compliance as provided in section 138(1)(b) and 139 of the electoral act 2010(as amended). in doing so, it examined further the burden of proof placed on the petitioner where he attempts to prove allegations of offences that constituted the non-compliances in an election petition. the methodology adopted is doctrinal and analysis of the relevant provisions of the act and literature on the subject. in the end, the researcher recommends the deletion of section 139 of the electoral act 2010 (as amended) and suggests other necessary amendments to the act, which if adopted, will enable a petitioner succeed in proving the ground of substantial non-compliance. keywords: election petition, substantial non-compliance, electoral act, election tribunal. 1. introduction nigeria is heterogeneous and populous. it has about 374 ethnic formations.1 on may 19, 2021, the population of nigeria was estimated at 210,832,540 based on the latest united nations estimates.2 also, nigeria is peculiarly plural by vast number of different social groups and by vast number of different religious and traditional occupations. the deep and fundamental differences in attitude, character and culture also added to her peculiarity. most social and political groups like nigeria often times adopt election as a means of selecting their leaders and policy makers. from the 17th century, elections have been the usual mechanism by which modern representative democracy has operated.3 today, election is the corner stone of democracy.4 elections, therefore, are central institutions of democratic representative governments. election in most democratic states is usually conducted by an institution set up by law. for nigeria, the body is currently the independent national electoral commission. rules and regulations are normally put in place for the conduct of free and fair elections. as at date, the electoral act 2010 (as amended) is the primary legislation for the conduct of elections in nigeria. after the conduct of elections, in line with the dictates of the act5 and a winner emerges, a candidate in the election or his political party not satisfied with the outcome can challenge the result of the election.6 this can be done by presenting a petition to the relevant election tribunal created under the law.7 in presenting a petition, the petitioner, can only rely on any or a combination of the five grounds of petition provide for. the five grounds on which an election may be questioned or set aside are: 1. that the candidate declared to be the winner of an election is not qualified, at the time of the election, to contest the election. 2. that the election was invalid by reason of corrupt practices of non-compliance with the provisions of the electoral act *by chukwuemeka e. ibe, phd, llm, bl, llb, professor of law, faculty of law, nnamdi azikiwe university, awka anambra state nigeria. email:emmaibe2020@gmail.com; phone number: 07031105599; 07034029929; and *uchechukwu humphrey onyekachi, llb, bl, llm candidate, faculty of law, nnamdi azikiwe university, awka, anambra state, nigeria. email: onyekachiuchechukwu@gmail.com. phone number +2348060008948 1i aumezulike, ‘an overview of communal conflicts in nigeria: our skeptical view and suggestions’ (2015) nbj vol.10, p 15. 2‘nigerian population 2019-worldmeters’ www.worldometers.info/world-population/nigeria-populationaccessed on 19thmay, 2021. 3‘election political science,’ britannica online. www.britannica.com/topic/election-political-science accessed on 5 september 2016. 4t osipitan, problems of proof under the electoral act 2002, judicial excellence, essays in honour of hon. justice anthony iguh jsc con, (enugu: snaap press ltd enugu, 2004) p 289-304. 5 act means the electoral act 2010 (as amended) 6 section 137 of the electoral act 2010 (as amended) 7 section 133 of the electoral act and section 285 of the 1999 constitution of the federal republic of nigeria. mailto:emmaibe2020@gmail.com mailto:onyekachiuchechukwu@gmail.com http://www.worldometers.info/world-population/nigeria-population http://www.britannica.com/topic/election-political-science acarelar 2 (2021) page | 65 3. that the respondent was not duly elected by the majority of lawful votes cast at the elections or 4. that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election. 5. that the person whose election is questioned had submitted to the commission affidavit containing false information of a fundamental nature in aid of his qualification for the election.8 amongst these five grounds upon which an election petition can be challenged, ground two that is (section 138(1)(b)), are resorted to more often than the other grounds. most times, in the conduct of elections, the provisions of the electoral act are breached, giving rise to these complaints. as a result, majority of election petitions presented to the tribunal are often on the ground that there was noncompliance with the provision of the act in the conduct of the election. on the other hand, ground one above rarely occurs as a post-election dispute. this is so because grounds one and five are both preelection and post-election disputes. they can occur and be challenged prior to the election, just as they can be raised after the election. in most cases, however, other candidates in the election would have raised those grounds in a pre-election suit prior to the elections and a determination on the same would have been made thereby aborting its occurrence as a post-election dispute. also, grounds three and four rarely occur as post-election dispute, because the electoral body after computing the majority of lawful votes scored in an election would have arrived at a correct determination of who scored majority of lawful votes. it is not the practice of the electoral body (inec) to exclude the candidate of a political party whose name had been submitted to the commission prior to the elections. after the names of candidate of political parties have been submitted to inec and published, inec would have ample time to capture all the candidates for the election. therefore, it rarely occurs that a lawfully nominated candidate would be excluded from the election. this leaves us with ground two as the ground that often arises for determination in an election tribunal. 2.0 substantial non-compliance by virtue of section 138(1) (b), an election can be invalidated by reason of corrupt practices or noncompliance with the provisions of the act. even though the act provided these as a ground upon which an election can be nullified, establishing/proving the said ground simpliciter cannot result in the setting aside of an election because section 139(1) of the act has further qualified ground 138 (1) (b) and made it more difficult to establish. section 139 (1) of the act provides thus: an election shall not be liable to be invalidated by reason of non-compliance with the provisions of this act if it appears to the election tribunal or court that the election was conducted substantially in accordance with the principles of this act and that the noncompliance did not affect substantially the result of the election. section 139(1) enunciated the principle of substantial non-compliance. it introduced a qualification for ground 138(1) (b). no other ground as shown in section 138(1) (a-e) was so qualified. what section 139(1) of the act prescribes is that after establishing that there were non-compliances in an election, the petitioner must go further to satisfy two distinct requirements. these are that the election was not conducted substantially in accordance with the principles of the act and that the noncompliance affected the result of the election substantially. in pdp v. inec & ors9 the apex court restated this position when it held: by section 138(1) (b) of the electoral act, 2010 (as amended), an election may be questioned on the ground that the election was invalid by reason of corrupt practices or non-compliance with the provisions of the act. however, by section 139(1) of the same act an election shall not be liable to be invalidated by reason of non-compliance with the provisions of the act if it appears to the election tribunal or court that the election was conducted substantially in accordance with the principles of the act and that the non-compliance did not affect substantially the result of the election. the two provisions i.e. sections 138(1)(b) and 139(1) of the electoral act, from the way they are couched, have placed a heavy burden of proof on any petitioner seeking to challenge the result of an election on the ground that the election did not comply with the 8 section 138(1a-e) electoral act 9 (2014) lpelr-23808(sc) ibe & onyekachi: proving substantial non-compliance in election petition under the nigerian electoral act: a mirage or a reality? page | 66 provisions or principles of the electoral act. this is so because, apart from showing or proving that it did not comply with the provisions of the act, such a petitioner must prove to the tribunal or court that the election was not conducted substantially in accordance with the principles of the act and that the non-compliance substantially affected the result of the election.10 before this, niki tobi in basheer v same & ors11 fell to the error of thinking that the two limbs of the conditions in section 139(1) should be read disjunctively and that an election may be invalidated if any of the limbs is proved. but he was quick to return on the subject and departed from his earlier position for the reason that he reached that decision per incuriam.12 we agree that the two conditions must be satisfied before an election can be invalidated. this even makes the matter worse confounded. we also submit that non-compliance with the provisions of the act must not necessarily mean the commission of corrupt practices or electoral offence. from the provision of section 138(1) (b), the commission of corrupt practice as a ground for election petition is distinct from non-compliance with the act. the use of the word ‘or’ connotes disjunctive preposition. 3. evidential burden in proving substantial non-compliance for varied offences even though, some non-compliance will not imply the commission of a criminal offence, a majority of non-compliances committed during an election connotes the commission of a criminal offence. of course, where criminal allegations are made by the petitioner as constituting the non-compliance in the election, the burden of proving those allegations rests squarely on the petitioner and he must prove same beyond reasonable doubt. this principle was enunciated in of nwobodo v onoh.13a corollary to that principle is that where the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.14 the substantive provisions are expatiated anon. falsification of result where a petitioner alleges that the result of an election was falsified and that the falsification has substantially affected the result of the election, he would be required to satisfy the requirement of proof beyond reasonable doubt as falsification of result constitutes a criminal act. in eboh v ogujiofor, it was held: ‘the allegation of incident of fraudulent acts, falsifications, mutilations and cancellation of election result is criminal in nature of which the evidence required in proof of such allegations must be clear and unequivocal’.15 moreover, the petitioner in order to establish or prove an allegation of falsification of election result has a duty to produce and tender at the trial. at least two sets of results, one of which could be taken as genuine and the other stigmatized as held in etuk v isemin16; sabiya v tukur &ors17; wali v bafarawa18; awuse v odili19; ojo v esohi&ors20seikegba v penawou&ors.21 this is a big burden on the petitioner. the petitioner does not keep custody of the election results. inec does and it is no news that inec as a respondent in a petition often colludes with the winner so as to justify the outcome of the polls which they conducted. even when all the electoral materials are subpoenaed, the petitioner would not be able to establish this requirement as the materials are often already tampered with in favour of the winner. 10 per john inyang okoro, j.s.c (p. 51, paras. a-g) 11basheer v. same & ors (1992) lpelr-12762(ca) 12see alhaji yusuf i. na-bature v alhaji isa aliyu mahuta & ors (1992) 9nwlr (pt. 263) 85 at 108 13(1984) all nlr 1. see also omisore & anor v. aregbesola &ors (2015) lpelr-25820(ca) 14 section 135(1) of the evidence act 15(1999) 3 nwlr (pt. 595) 419 @ 423 424 16(1994) 4 nwlr (pt 234) 402 at 414 17(1983) 11 sc 109 18(2005) (pt 249) 1863 19(2004) all fwlr (pt. 261) 248; (2004) 8 nwlr (pt. 876) 481 20(1999) 5 nwlr (pt. 603) 444 at 452 453 21(1999) 9 nwlr (pt.618) pg.354 acarelar 2 (2021) page | 67 disenfranchisement disenfranchisement can be proved by the tendering of voter's registers, voters’ cards and of course by the verbal or oral testimony of those who claim to have been disenfranchised. in chime v ezea, the court held thus: everyone deprived of voting must come and show his voters card, express his constitutional right to pick a candidate of his choice. the comprehensive voters register must be tendered, authentic evidence of what happened at each polling booth must be given and this will not admit of any generalisation of evidence for local government or constituency as it will not serve the purpose.22 this same is true of audu v inec & ors23 the above requirement is an onerous task considering that the number of persons disenfranchised may run into hundreds of thousands and or millions and may be scattered at different locations. also, considering the fact that an election petition must be presented within 21 days after the election the procedural requirement of frontloading depositions of witnesses and documents to be relied on poses a difficult challenge for the petitioner. furthermore, the fact that the petition must be concluded within a stipulated time makes it almost impossible for the petitioner to call all the witnesses that may be required to prove disenfranchisement. where the number of persons that claim disenfranchised is less than the difference between the winner and the petitioner, the tribunal will again resort to the magic wand of substantial non-compliance to hold that it would not have affected the outcome of the results.24 for the petitioner to succeed, he will have to prove that the disenfranchisement was substantial and such infringement or non-compliance affected the result of the election. as usual, the petitioner alleging non-compliance has the burden to establish, after he has shown that there was a substantial non-compliance, that it also affected the result of the election. the respondents have no burden of proof on them. multiple thumb printing/voting multiple thump printing of ballot papers is an electoral offence. under the electoral regime, a person is entitled to one vote and so where a person thump prints multiple ballot papers and or vote more than once, the offence is constituted. this is provided in section 53(1) of the act. a petitioner in substantiating non-compliance with the electoral act may plead facts to the effect that the petitioner or his agents engaged in the offence of multiple thump printing/voting. where this is the case, he would need to prove such offence beyond reasonable doubt. in addition to the requirement of proof beyondreasonable doubt, there are the additional requirements that there must be established a nexus between the perpetrators and the candidate who was returned. what is more, it must, also, be shown that the act adversely affected the conduct of the election and substantially affected the result of the election25. dealing with the offence, the court held in hon ode frank igbe& anor. v dr. joseph adoga ona & ors that an expert evidence showing that the finger prints appearing on the ballot papers belong to one and same person is essential. it also established that it must also be proved that the party, whose election is challenged, aided or abetted the multiple voting/thumb-printing. thuggery generally, election thuggery is the attempt to dictate the outcome of the election with the use of force and intimidation. it is the act of using violence and intimidation to prevent voters for voting a particular candidate or threatening them to vote a particular candidate.26 thuggery being a criminal act will require proof beyond reasonable doubt and before the result can be impugned. the petitioner must establish that the winner of the polls carried out the thuggery or establish a nexus between him and the perpetrators of the act.27as dictated by section 139(1) of the electoral act, the petitioner must establish that the thuggery has affected the result substantially and that thereby the provisions of the act have not been complied with substantially. 22(2009) 2 nwlr (pt. 1125) 263 at 357 paras. e-f 23(2010) 13 nwlr (pt. 1212) 456 at 523 24pdp & anor. v inec & ors. (2012) lpelr-8409(ca) 25oyegun v igbinedion (1992) 3 nwlr (pt. 226) 747; (1992) 2 lrecn 1,747, 759-760 26 section 131 of the act 27ogu v ekweremadu (2006) 1 nwlr (pt. 961) 255 at 281 282 (ca) ibe & onyekachi: proving substantial non-compliance in election petition under the nigerian electoral act: a mirage or a reality? page | 68 stuffing of ballot boxes another known electoral offence which can be particulars of substantial non-compliance is stuffing of ballot box with already unlawfully thumb printed ballot papers. ordinarily, a voter will only be issued with one ballot paper with which he will vote by thumb printing and put in the ballot box. however, the offence occurs when the respondent or his agent through intimidation or other unlawful means obtains many ballot papers, thumb prints and stuffs the box with these. a petitioner who relies on this offence to seek for nullification of the result will be required to tender and open before the court the ballot boxes he alleges to have been stuffed, for the contents to be seen by everyone present at the proceeding before the tribunal. this pre requisite was introduced in the cases of haruna v modibbo28; iniama v akpabio29 and a.n.p.p. v usman30, pdp v. inec &ors.31 in other words, the petitioner has to obtain custody of the boxes and produce them in court. this is quite an onerous burden to discharge. in the first place, after election, inec retains all the materials and where they are colluding with the winner of the polls, they would have covered up the illegality before the matter gets to the tribunal. perhaps, if immediately the result is declared, all the materials used in the election are deposited at the court’s registry for safe keeping; it would be easier for the petitioner during hearing to make use of these in discharging this burden. what is more, to prove the respondent’s guilt, the petitioner will be expected to discharge the burden beyond reasonable doubt.32 we now consider procedural drawbacks against the petitioner. 4. procedural hitches in proving substantial non-compliances as has been shown above, the petitioner has onerous burden of discharging the burden of proof in any criminal allegation occasioning the non-compliance. apart from this evidential burden on the petitioner, there are certain provisions of the rule of practice of an election tribunal that further compound the difficulty of proving substantial non-compliance by the petitioner. these procedural hitches are contained in the 1st schedule to the electoral act (the rule of procedure for election tribunal). some of these procedural hitches targeted against the petitioner alone are discussed hereunder. the deposit of security for cost one harsh requirement introduced under the electoral act regime and procedure in election petitions is the requirement of a petitioner depositing money as security for cost. this provision already suggests that procedure of enforcement of election petition is anti the petitioner by confronting him with deposit of money for payment of cost not yet accrued and which no one knew if it will ever accrue. paragraph 2 of the first schedule brought out the stark realities of this stringent provision. it provides: 2(1) at the time of presenting an election petition, the petitioner shall give security for all cost which may become payable by him to a witness summoned on his behalf or to a respondent. (2) the security shall be of such amount not less than n 5,000.00 as the tribunal or court may order and shall be given by depositing the amount with the tribunal or court. (1) ……. (2) if no security is given as required by this paragraph, there shall be no further proceedings on the election petition.’ an election petition is said to be presented under the act, when the petitioner or his solicitor gives security for cost and pays all necessary fees as required in paragraph 2(1) and 3(4) of the first schedule to the act. non-compliance with this provision is fatal to the petition.33 the practice of deposit of cost is rarely practiced in other areas of law. this mandatory introduction under the electoral act has worsened the problem of the petitioner. what is more saddening is that the first schedule did not prescribe with certainty the amount to be deposited in an election petition but has left the court/secretary to impose any amount as he/she may desire but not less than n5,000.00. this is not to be encouraged as an impecunious petitioner may by this provision be prevented from presenting his petition. for instance, in enugu state after the 2019 general elections, the petition of uchenna nwegbo against the 28(2004) 16 nwlr (pt. 900) p.487 29(2008) 17 nwlr (pt. 1116) pg. 225 30(2008) 12 nwlr (pt.1100) p. 1 31(2011) lpelr-8831 (ca) 32uzu & anor v ogbu & ors. (2012) lpelr-9775(ca) 33eminue v nkereuwen & ors (1966) 4 nscc 51 at 54 acarelar 2 (2021) page | 69 return of sen dr. chimaroke nnamani in respect of enugu east senatorial district could not be presented as the said petitioner could not pay the n 600,000.00 (six hundred thousand naira) only being charged as security for cost. frontloading paragraph 4 (5) of the first schedule to the act introduced frontloading system under the electoral act regime. the paragraph provides: (5) the election petition shall be accompanied by (a) a list of the witnesses that the petitioner intends to call in proof of the petition; (b) written statements on oath of the witnesses; and (c) copies or list of every document to be relied on at the hearing of the petition. the provision of sub paragraph 6 went ahead to provide the penalty for non-compliance with the above requirement of frontloading. it provides that a petition which fails to comply with sub paragraph (5) of this paragraph shall not be accepted for filing by the secretary. that is to say if the petitioner did not comply with the provision requiring him to frontload the witness statement on oath as well as copies of every document he will rely on, his petition will not be accepted for filing. the gross effect of the provision is that where the petition did not obtain all his documents and frontload same within 21 days or failed to list them, he cannot bring it later and his petition would not be accepted for filing. this has increased the nightmare of the petitioner. requiring a petitioner to assemble all his witnesses and do their deposition within 21 days is to say the least a difficult task. where a petitioner wants to prove widespread irregularities, he is expected to have at least a witness from each polling unit to come and testify to that fact. in an election dealing with a house of assembly seat, there may well be over 200 polling units. for this, the petitioner would have to source about 200 witnesses and prepare their written depositions within 21 days and as well obtain and frontload the necessary documents within 21 days. additional to this is that by the provision of paragraph 14 (2)(i) of the first schedule to the electoral act, any amendment that seeks to introduce any of the requirement under paragraph 4(1) of the first schedule cannot be introduced or granted. to that extent, amendment is largely limited if not barred entirely. the import of the provision is that, the parties interested in an election petition, the right of the petitioner to present a petition, the winner of the election, the facts of the election petition, the scores of the candidate, the holding of the election, the ground of the petition, the relief sought by the petitioner cannot be amended or introduced. it means that any genuine mistake of counsel in these arears while filing the petition within the short period cannot be forgiven or corrected. this provision is very unfair on the petitioner and compounds his burden. filing pre-trial forms: subparagraph 1 of paragraph 18 provides that: ‘within 7 days after the filing and service of the petitioner's reply on the respondent or 7 days after the filing and service of the respondent's reply as the case may be, the petitioner shall apply for the issuance of pre-hearing notice as in form tf007’. one surprising feature in this provision is why the duty to apply for form tf 007 is imposed on the petitioner. just as the secretary effects services and gives notices, would it not be more appropriate and meet the ends of justice if the secretary were to issue this pre-hearing notice form to parties without an application from the petitioner. this provision is one of such provisions made without any legal purpose except to constitute another procedural trap for the petitioner with the intent to have him caught up in the legal web. the schedule did not just leave that duty on the petitioner without prescribing penalty for failure. paragraph 18(3) (4) and (5) provides thus: ‘(3) …… (4) where the petitioner and the respondent fail to bring an application under this paragraph, the tribunal or court shall dismiss the petition as abandoned petition and no application for extension of time to take that step shall be filed or entertained. (5) dismissal of a petition pursuant to subparagraphs (3) and (4) of this paragraph is final, and the tribunal or court shall be functus officio.’ therefore, where the petitioner fails to apply for issuance of form tf007, the respondent may apply for the said form or apply by motion that the petition be dismissed. in practice, the respondent would ibe & onyekachi: proving substantial non-compliance in election petition under the nigerian electoral act: a mirage or a reality? page | 70 not apply for the issuance of form tf007 but are most often inclined to apply for the dismissal of the petition. the subparagraph goes further to provide that the tribunal shall upon such respondent’s motion dismiss the petition as abandoned petition and the dismissal shall be final. what is very striking is that by subparagraph 4, an extension of time is not tolerated. the real essence of pre-hearing session is to avoid delays. however, this noble objective seems to be defeated by the albatross inherent in the way and manner applications for pre-hearing session are done. the above provision though made to aid the expeditious disposal of election petitions, has rather become counterproductive and self-defeating34. there is nothing progressive about the provision of paragraph 18 of the first schedule. more succinctly, the provision does not ensure for speedy hearing of election petition but rather helps in speedy dismissal of a petition without substantive determination of the election petition. such a provision in a country that needs to improve her electoral process should not be encouraged. until the tribunals become more liberal in election petitions, nigerian electoral body will not sit up, and political fraud and irregularity will not cease to feature. the country will continue to be led by people without credibility. extension of time a detailed study of the provisions of the first schedule will reveal that the electoral petition procedure is anti-extension of time for the petitioner. one of the fall outs of human nature is that a party may not be able to comply with the time requirements for every step in the litigation process. the court’s cardinal foundation is to give parties a listening ear. that explains why there is an in-built mechanism in litigation process that accommodates a request for extension of time. it is almost general in all species of litigation except election petitions. perhaps this is to further make it difficult for the petitioner to prove any ground of his petition thereby punishing him for any delay and for non-performance of any of the roles imposed on him under the act, without regards to any extenuating circumstances. in the first place, it has been constitutionally prescribed that the petitioner must present his petition within 21 days. time for presentation of petition cannot be extended. in fact, the time limit for presenting election petition is in the nature of statute of limitation and its intendment is to oust the jurisdiction of the tribunal once the period prescribed is past. it cannot be extended as it is limited35. this is not healthy; more time should be granted the petitioner. in canada, a jurisdiction where election petition is treated summarily, ie where there is no need of frontloading, the petitioner is allowed 30 days to file his petition.36 similarly, in kenya, a fellow african country, the petitioner is granted 28 days to file his petition.37 these two countries that allow longer time to present a petition both have stronger and more responsive institutions than nigeria in the electoral process. secondly, time cannot be extended for the petitioner for filing his reply. paragraph 16 (2) of the first schedule provides that the time limited by sub paragraph (1) of this paragraph shall not be extended. the said subparagraph 1 provides that; ‘if a person in his reply to the election petition raises new issues of fact in defence of his case which the petition has not dealt with, the petitioner shall be entitled to file in the registry, within five (5) days from receipt of the respondent’s reply, a petitioner’s reply in answer to the new issues of fact.’ by that provision, the petitioner’s time for filing his reply cannot be extended. the effect is that if the petitioner fails to file a reply within 5 days from service, he will be deemed at law to have admitted all the new factual averments made by the respondent. this is grave and can be fatal to the petition. by virtue of paragraph 10 (2), the respondent is allowed a period of 21 days to file his reply. he can as well apply for and be granted extension of time if he fails to file his reply within 21 days. this is unlike the petitioner who cannot obtain extension of time to file petition or extension to file the petitioner’s reply or extension of time to apply for the issuance of pre-trial form. in each case where the petitioner fails to comply with the time granted to him, his petition will face fatal consequences! participation in pre-trial proceedings paragraph 18 (11) (a) is another grave provision under the electoral act. this section provides that where a petitioner fails to attend the pre hearing sessions or fails to obey a scheduling or pre hearing order or is substantially unprepared to participate in the session or fails to participate in good faith, the 34 u c kalu, e o c obidinma & a o anazor, ‘time limitation in election petitions in nigeria: the imperative for further constitutional reforms’ international journal of innovative research & development (december 2016, vol 5 issue 14) p 46, issn 2278-0211 (online). 35lamido v turaki (1999) 4 nwlr (pt.600) 578 36 section 527 of canada elections act 37 section 74 of elections act no 24 of 2011 acarelar 2 (2021) page | 71 tribunal shall dismiss the petition. this provision decapitates the petition because of any act perceived as indicating lack of seriousness on the part of the petitioner. what constitutes lack of seriousness in the mind of the court pursuant to the provisions ranges from being absent in court, to non-filing of issues for determination, including other inability to meet stipulated conditions. paragraph 18(11) provides thus: ‘if a party or his legal practitioner fails to attend the pre hearing session or obey a scheduling or pre hearing order or is substantially unprepared to participate in the session or fails to participate in good faith, the tribunal or court shall in the case of (a) the petitioner, dismiss the petition; and (b) a respondent, enter judgment against him’ even though, paragraph 18(11) provided that judgment can be entered against the respondent for failure to participate effectively in pre-trial proceedings, the respondent unlike the petitioner, can apply to have the judgment entered against him set aside. paragraph 18(12) provides thus: ‘any judgment given under subparagraph 11 of this paragraph may be set aside upon an application made within 7 days of the judgment (which shall not be extended) with an order as to cost of a sum not less than n20,000’. paragraph 18(12) talks about judgment alone and did not talk about the order of dismissal. in paragraph 18(11), two consequences flow. these are order of dismissal against the petitioner and judgment against the respondent. subparagraph 12 only saves the judgment against the respondent and not the order of dismissal against the petitioner. in other words, where the petition is dismissed pursuant to subparagraph 11, the order of dismissal cannot be set aside by an application made within 7 days in line with sub paragraph 12! this is the harsh reality of the provision of the electoral act. these provisions make life unnecessarily difficult for the petitioner. in solomon v celestine & anor38 the court held that the provision of paragraph 18 (12) of the first schedule to the electoral act dealing with setting aside can only apply in a situation where the respondent has a judgment entered against him under the provision of paragraph 18 (11) (b) and does not apply, to a petition dismissed under paragraph 18 (11) (a) of the first schedule. so, the provision of the act punishes the petitioner for non-participation in pre-trial and gives him no remedy to save his petition unlike the respondent that it provides opportunity to set aside the judgement. 5. conclusion and recommendations from the foregoing, substantiated by the outcome of a lot of election petitions, it is obvious that proving the ground of substantial non-compliance under the electoral act of nigeria is a herculean, if not an impossible task. the combined provisions of section 138(1)(b) and 139(1) have created a high hurdle for petitioners to jump. unfortunately, the existence of this high hurdle is now promoting the current high rate of electoral offences witnessed in the country. since the act by the above stated provisions requires the petitioner to prove that the non-compliance have substantially affected the result of the election and substantially detracted from the provisions of the act, politicians have capitalized on this and they commit serial electoral fraud knowing that the act has made it impossible for the petitioner to establish his case. this has also misled the electoral body into becoming more lackadaisical and nonchalant in regards to complying with the provisions of the law. we have attempted hereinabove to show how it is easier for a camel to pass through the needle’s eye than for a petitioner to prove substantial non-compliance before an election petition tribunal. no matter how high he jumps, he cannot prevail because the hurdle is beyond his reach. therefore, the parameters need be reset and a return visit made on the requirements so as to adjust or reduce the burden. we recommend as follows: (a) deletion of section 139 of the electoral act. this is to bring an end to the problem of proving substantial non-compliance. section 139 of the electoral act can void an election without first examining whether such non-compliance substantially affected the result. we have found that it cannot even be said whether a non-compliance affected the result substantially as some seemingly little noncompliance can have a ripple effect in the entire process and thus snowball into derailing the efficacy of the entire election. deleting section 139 will therefore enthrone some sanity into the system. politicians and political actors will know that it is no more business as usual and will begin to conduct 38(2011) lpelr-9186(ca) ibe & onyekachi: proving substantial non-compliance in election petition under the nigerian electoral act: a mirage or a reality? page | 72 themselves properly during elections thus ensuring integrity in the electoral process. this is what obtains in canada where such anachronistic provision has no room in the electoral law.39 (b) section 285(5) and 285(6) of the 1999 constitution should be amended to extend the time of filing election petition to at least 40 days and also extend the time for hearing of a petition to at least 240 days. these amendments are suggested so as to provide enough time for the petitioner to prove any ground of his petition. (c) paragraph 14 (2)(i) of the first schedule to the electoral act, should be amended to allow the petitioner room to amend any of the requirement of paragraph 4 (1) of the first schedule except the ground of the petition. (d) paragraph 18(4) of the first schedule to electoral act should be amended to mandate the secretary of the tribunal to issue pre-trial forms (form tf 007) and fix a date for filing the answers thereto (form tf008) (e) paragraph 18 (3) & (5) of the first schedule should be deleted entirely. (f) paragraph 18(12) should also be amended to save petitions. the paragraph should provide that an order of dismissal can be set aside just as a judgment against a respondent can be set aside. (g) paragraph 2 of the first schedule should be deleted entirely. (h) paragraph 16(2) and 45(1) of the first schedule should all be amended to allow extension of time within which the petitioner can file the petitioners reply. 39 section 524 of canada elections act s.c 2000 c.9. nwachukwu: an appraisal of the relationship between the courts and arbitral process in nigeria page | 72 an appraisal of the relationship between the courts and arbitral process in nigeria* abstract arbitration is an accepted form of dispute settlement in many countries today. nigerian courts initially saw arbitration as a rival that must not be allowed to take roots in nigeria. then the courts were reluctant in recognizing the decisions of arbitral tribunals and viewed such decisions with suspicion. as time goes on, the attitude of the courts began to change. now courts have played and have continued to play both supervisory and supportive roles in ensuring that arbitration process in nigeria performs its role in dispute resolution. this paper aimed at appraising the relationship between the courts and the arbitral process with a view to determining how far arbitral process is dependent on the court. the researcher adopted the doctrinal methodology relied on library based materials and internet sourced materials. it found that the relationship between the duo is a symbiotic relationship. the courts are involved in the process of arbitration from commencement to recognition and enforcement of the arbitral awards as well as its setting aside. it is recommended that the intervention of the court should not be allowed to be over excessive so that the beauty of arbitration as a process of dispute resolution will not be eroded. keywords: arbitration, arbitral process, arbitral award, courts. 1. introduction arbitration is a private dispute resolution method which has gained its ground in the commercial transactions. ezejiofor describes it as the fair resolution of a dispute between two or more parties by a person or persons other than by a court of law and concludes that an exercise is not arbitration if it does not answer this definition.1 this definition seems not to have captured all the elements of an arbitration process. the definition failed to state that the parties must voluntarily submit their dispute to the third party who will give a decision called an award. halsbury’s laws of england defines it as: ‘the process by which a dispute or difference between two or more parties, as to their mutual legal rights and liabilities, is referred to and determined judicially and with binding effect by the application of law by one or more persons (the arbitral tribunal) instead of by a court of law.’2 the above definition is a more encompassing one as it seems to capture all the elements of the arbitral process. an arbitral tribunal derives its authority solely from the parties’ agreement to arbitrate. ‘court’, on the other hand, is an organ of the government, belonging to the judicial department, whose function is the application of laws to controversies brought before it and the public administration of justice. it is that body in the government to which the administration of justice is delegated.3 courts are, therefore the bastions of justice created by law and vested with the power to determine disputes.4 the courts are creation of the constitution5. the 1999 constitution of nigerian sets up the court system and vests in them the right to determine controversies between persons in nigeria. access to court is therefore a fundamental right of every nigerian citizens6. judicial courts and arbitration panels are often perceived as two distinct worlds. this is because the essence of arbitration is that the dispute between the parties is taken out of the formal court process and determined by arbitrators chosen by the parties or appointed for them by the court or arbitral institute.7 more so, the intention of the parties who go before an arbitral tribunal is to exclude the intervention of the court in their case8. but the truth is that as much as these mechanisms are exclusive one from the other that is, they demand a choice by the disputing parties on the forum to solve their disputes, there are nevertheless points of convergence between the two. arbitration needs and receives the support of the courts. indeed both work hand in hand to ensure the efficient and effective administration of justice. courts have an important role to play which is complimentary to arbitration. the courts have played and have continued to play supportive role in ensuring that arbitration process in nigeria is strengthened and empowered to perform its role in dispute resolution. this work looked at the various roles of the court in arbitral proceedings in order to portray the relationship between the duo. the relationship between courts and arbitral tribunals has been described as one of constant shifts and changes. it can also be described as that of ‘partnership’. it is one in which each has *by tochukwu nkiruka nwachukwu, llb, bl, pgd (management), llm, phd candidate, faculty of law, nnamdi azikiwe university, awka. phone no: 08067673140. email: tochianaje@yahoo.com 1 g. ezejiofor, the law of arbitration in nigeria, (ikeja: longman, 1997), p.3 2 halsbury’s laws of england, 4th ed. vol. 2, (london: butterworths, 1986) p. 332 cited in c. a. obiozor, nigerian arbitration jurisprudence, (onitsha: allied press & co, 2010), p. 1 3c. a. obiozor, courts and the framework for domestic arbitration under the act in nigeria, (onitsha: allied press & co, 2010) p. 1 4 ibid, pp. 2 & 3 5 1999 constitution of the federal republic of nigeria, section 6. 6 a. law, the role of the court in arbitration under the arbitration and conciliation act 2004, https:www.djetlawyer.com accessed on 15th feburary, 2022. 7 g. c. nwakoby, the law and practice of commercial arbitration in nigeria, (enugu: snap press ltd, 2004) p. 409 8 ibid. african customary and religious law review 1 (2020) page | 73 a different role to play at different times9. the nature of this relationship has been described as a relay race where initially ‘the baton is in the grasp of the court’ as it is the sole organization with power to give effect to the arbitration agreement.10 then the arbitrators take over until making an award and once the award is made, their function is fulfilled so the baton is once again handed to the courts to ‘lend its coercive powers to the enforcement of the award’.11 it is also observed that under the nigerian arbitration and conciliation act, there are sections providing for court’s involvement in arbitration. though, arbitration may depend upon the agreement of the parties, it is also a system built on law and which relies upon that law to make it effective both nationally and internationally. it is therefore a true statement that courts can exist without arbitration, but arbitration cannot exist without the courts12. nwakoby13, opined that: … it is very difficult to exclude in its entirety the intervention of the court in arbitral process. arbitration will be rendered unattractive and hopeless if the court is completely excluded from the same. this is because the arbitral tribunal has certain obvious limitations based on law one would expect that a party having chosen arbitration as a faster means of dispute resolution will be free entirely from the intervention of court, invariably eliminating delay, though that is usually not the case. in fact, a party who agrees to refer dispute to arbitration chooses a private system of justice and this, in itself, raises issues of public policy.14 having established this foundation, the essence and real issue here is to define the point where the reliance of arbitration on national courts begins and where it ends. 2. the converging points of courts and arbitral process the arbitration and conciliation act15 being the canon law of arbitration in nigeria allows the involvement of court in arbitral process but also stated the limits of the involvement. it has provided in its section 3416 that ‘a court shall not intervene in any matter governed by this act except where so provided in this act’. this section of the arbitration and conciliation act is in pari materia with article 5 of the uncitral model law. sby virtue of the provisions of section 34 of the act, there exists a relationship between the arbitral process and the court. the essence of section 34 is to strike a balance between the supervisory power of the court and the freedom of the arbitral process.17 it is also to ensure that the formal courts do not interfere with arbitration proceedings unnecessarily. the intendment of the section is not to limit the jurisdiction of any court in the determination of matters within its jurisdiction but rather that no application may be made to the court in any matter where there is an available process in the act. the essence is to ensure that arbitral process is not rendered nugatory and unattractive within our jurisdiction by incessant and unnecessary intervention by the courts.18 by section 34, therefore, courts will only supervise and where necessary assist the arbitration process. it is pertinent to state that courts supervision and assistance does not threaten the future of arbitration as a form of dispute resolution. rather it supports and insures its continued viability. courts intervention is prevalent and indeed inevitable. the act also defines court to mean the high court of a state, the high court of the federal capital territory or the federal high court19. it is to any of these courts that arbitral matters could be referred by the parties to arbitration agreement. flowing from sections 34 and 57 of the act it means that the act makes provisions for the intervention of the courts in the arbitral process and these areas where courts can intervene are the areas of convergence between the courts and the arbitral process. these occasions for intervention are as follows: revocation of arbitration agreement arbitration is based on a valid agreement to arbitrate. as stated earlier, an arbitration is a product of an agreement by the parties to refer any or all existing or future disputes arising from their legal relationship to a neutral person or persons for determination of their respective rights and liabilities, in relation to the dispute under reference. 9 a. i. idigbe, ‘court control of arbitral process’, a paper presented at the nigerian bar association section on business law, 2day workshop on adr as an alternative and expeditious and cost effective means of dispute resolution. at eko hotels, victoria island, lagos on 5th july, 2006. 10 l. mustill, ‘comments and conclusions in conservatory provisional measures in international arbitration, 1993, 9th joint colloquium, icc publication p. 118 11 ibid 12 a. i. idigbe, op. cit. 13 g. c. nwakoby, op. cit. p. 409 14 a. i. idigbe, op.cit. 15 cap a 18, laws of federation of nigeria, 2004. 16 arbitration and conciliation act, cap a 18, laws of federation of nigeria, 2004. 17 mustil & boyd, the law and practice of commercial arbitration in england, 1989, 43, cited in g. c. nwakoby, op. cit, p. 410 18 g. c. nwakoby, op. cit, pp. 409 -410. 19 arbitration and conciliation act, op.cit, s. 57. nwachukwu: an appraisal of the relationship between the courts and arbitral process in nigeria page | 74 arbitration is a creature of consent, and that consent should be freely, knowingly, and competently given.20 therefore, to establish that parties have actually consented, the act provides that the agreement must be in writing and signed by both parties. section 221 provides that ‘unless a contrary intent is expressed therein, an arbitration agreement shall be irrevocable except by agreement of the parties or by leave of court or a judge’. even the death of any party does not revoke or render the agreement invalid, as it shall be made enforceable by or against the personal representatives of the deceased.22 the choice of arbitration does not bar resort to the courts to obtain security for an eventual award.23 it is pertinent to state that the private nature of arbitration does not oust jurisdiction of the courts, all that the agreement does is to postpone the right of access to court.24 since, the parties to a contract are allowed within the law to regulate their rights and liabilities themselves,25 all that the court is required to do is to give effect to the intention of the parties as it is expressed in and by their contract.26 this calls for two things from the courts. first, it must determine whether an arbitration agreement is valid and then whether to enforce a valid arbitration agreement which has not been mutually abandoned.27 once parties enter into a valid arbitration agreement, one of them cannot unilaterally revoke it, he must apply to the court for revocation under section 2 of the act. the arbitration agreement was freely and voluntarily entered into by the parties. to depart from it, the party seeking a revocation has to show good reason. one of such circumstances is when something happens which makes the performance of the arbitration agreement impossible or which destroys the foundation of the contract to arbitrate.28 like any other contract, the arbitration contract will be frustrated and can be formally revoked by the court on application by a party. the court will then be empowered to exercise the power of revocation in the event of a supervening impossibility causing a frustration of the objects of the arbitration agreement.29 in addition, where some supervening issues of law would arise to make a continuation of the performance of the arbitration agreement illegal,30 the contract will be deemed frustrated and an application for revocation on this ground by a party where the other party does not agree will be held by the court. arbitration will only apply when the dispute or difference which the parties to an arbitration agreement agree to refer is a justiciable issue which can be tried as civil matters.31 the court’s role is to decide whether a dispute is arbitrable or not. the court will revoke an agreement to arbitrate when the agreement relates to disputes that cannot be settled by arbitration.32 stay of court proceedings in every arbitral process, it is presumed that the parties to arbitration have agreed that their dispute shall be settled by arbitration. this is a solemn contract like any other and so a party to the agreement will not be allowed to unjustifiably breach that agreement by bringing a court action in respect of the same subject matter33. but this is not always the case. a party to an arbitration agreement may decide to institute proceedings in court, rather than explore arbitration as agreed by parties. if the other party agrees, the court action will proceed. where the defendant insists on his right to have the matter resolved by means of arbitration, the court’s responsibility is to ensure that the parties’ agreement is enforced by referring them to arbitration.34 the act has given the court the power to stay proceeding in situations like this in its sections 4 and 535. by the combined effect of sections 4 and 5 of the act, the court has the jurisdiction to grant stay of proceedings in respect of matters brought before it by a party to an arbitration agreement in breach of the terms of his agreement with his fellow. it is a breach of arbitration agreement for one party to commence an action in court without first reverting to the arbitration tribunal in accordance with the terms of his agreement36. where a party to an arbitration agreement decides to file his case in court instead of reverting to arbitration in accordance with the agreement he entered into with the other party, the aggrieved party is not without remedy in law. in accordance with sections 4 and 5 of the act, the aggrieved 20 o. bamigboye, ‘arbitration law and practice in nigeria: does national court involvement undermine the arbitration processes?’ february, 29 2015, https:www.papers.ssrn.com/so13/papers.cfm?abstract_id=2858812 accessed on 12th august, 2021. 21 arbitration and conciliation act, op. cit. 22 ibid, s. 3 23 scheep v. mv araz (2000) 15 nwlr (pt 691) 622. 24 city eng. (nig) ltd v. federal housing authority (1997) 9 nwlr (pt. 520) 224 at 248. 25 gott v. gandy 2 e & b 845 at p.847 per erle, j, cited in o. bamigboye, op. cit. p. 14. 26 sonar (nig) ltd. v. nordwind (1987) 4 nwlr (pt. 66) p. 520, para g.. 27 kurubo v. zach motison (nig.) ltd (1992) 5 nwlr (pt. 239) p. 102. 28 mustill & boyd, op.cit, p. 508. 29 ibid 30 i. e sagay, nigeria law of contract, (ibadan: spectrum books limited, 2009) pp. 359-456 31 g. ezejiofor, op.cit. p. 16 32 ksudc v. fanz construction ltd, 4 nwlr (1990) (pt 142 ) 1 at 32 33 j. o. orojo & m. a. ajomo, law and practice of arbitration and conciliation in nigeria, (lagos: mbeyi & associates (nigeria) ltd, 1999), p. 316 34 a. i idigbe, op. cit, p. 4 35 arbitration and conciliation act, op. cit. 36 g. c. nwakoby, op.cit, p. 417 african customary and religious law review 1 (2020) page | 75 party has a right to apply for a stay of proceedings in the court in which the suit is pending.37 a stay of court proceedings literally means the postponement or halting judicial proceedings or an order to suspend all or part of such proceeding.38 therefore, sections 4 and 5 of the arbitration and conciliation act39 empowers the court to stay proceedings and preserve the res.40 it is a well settled principle of law that proceedings in the court may be stayed, pending arbitration, in circumstances where an arbitration clause is inserted in the agreement between the parties in order that a stay might be granted. the court ought to give due regard to the voluntary agreement of the parties by enforcing the arbitration clause as agreed to by them. however, for the court to exercise such discretionary powers conferred by statute, the applicant for a stay of court proceedings must have asserted the right to evoke the arbitration provision before taking other steps in the proceedings. orojo and ajomo41 suggest that this application must be made after appearance and before the applicant has delivered any pleadings or taken any other steps in the proceedings. the court is bound to stay proceedings unless it is satisfied that there is sufficient reason to justify a refusal to refer the dispute to arbitration despite the agreement of the parties. the court may only refuse to order a stay of proceedings where the defendant establishes that he would suffer injustice from the arbitration tribunal or that agreement between the parties is null and void, inoperative and incapable of being performed.42 power to appoint arbitrators once a decision to refer a dispute to arbitration has been made, selecting an arbitrator is critical not only for the reputation of the arbitral tribunal process but for its standing. the usual practice is for the parties to appoint their arbitrators, prescribe their qualification, and state the number of arbitrators who shall arbitrate for them or in the alternative, name the arbitrator or a particular office holder as their arbitrator. the court does not have an inherent jurisdiction to appoint an arbitrator or umpire or to compel any party to the agreement of reference to do so43except where the parties have failed to make adequate provision for the constitution of the arbitral tribunal, or fail to agree on one arbitrator or the two arbitrators fail to appoint a third arbitrator.44 section 7 of the act45 provides for the intervention of the court in domestic arbitration to appoint an arbitrator on the application of any party to the agreement. section 7 of the arbitration and conciliation act provides thus: 7. (1) subject to subsection (3) and (4) of this section, the parties may specify in the arbitration agreement the procedure to be followed in appointing an arbitrator. (2) where no procedure is specified under subsection (1) of this section (a) in the case of an arbitration with three arbitrators, each party shall appoint one arbitrator and the two thus appointed shall appoint the third, so however that (i) if a party fails to appoint the arbitrator within thirty days of receipt of request to do so by the other party; or (ii) if the two arbitrators fail to agree on the third arbitrator within thirty days of their appointments, the appointment shall be made by the court on the application of any party to the arbitration agreement; (b) in the case of an arbitration with one arbitrator, where the parties fail to agree on one arbitrator, the appointment shall be made by the court on the application of any party to the arbitration agreement made within thirty days of such disagreement. (3) where, under an appointment procedure agreed upon by the parties a. a party fails to act as required under the procedure; or b. the parties or two arbitrators are unable to reach agreement as required under the procedure; or c. third party, including an institution, fails to perform any duty imposed on it under the procedure, any party may request the court to take the necessary measure, unless the appointment procedure agreed upon by the parties provides other means for securing the appointment. (4) a decision of the court under the subsections (2) and (3) of this section shall not be subjected to appeal. (5) the court in exercising its power of appointment under subsection (2) and (3) of this section shall have due regard to any qualifications required of arbitrator by the arbitration 37 ibid, p. 418 38 c. a. johnson & o. shashore, commercial arbitration law and international practice in nigeria, (durban: lexisnexis, 2011) p. 258 39 cap a18 lfn 40 the subject matter of the dispute 41 j. o. orojo & m. a. ajomo, op. cit. p. 316 42 m.v lupex v. nig. overseas chartering & shipping ltd (2003) 15 nwlr (pt 844) s.c. 469 43 el-assad v. misr (nig) ltd (1968) nclr 173 at 176 44 j. o. orojo & m. a. ajomo, op.cit. p. 2 45 arbitration and conciliation act, op. cit. nwachukwu: an appraisal of the relationship between the courts and arbitral process in nigeria page | 76 agreement and such other consideration as are likely to secure the appointment of an independent and impartial arbitrator. power to compel the attendance of witnesses in arbitral proceedings, it is ordinarily expected that a party should attend the proceedings with his own witness. a witness of a party may voluntarily attend and testify at an arbitral proceeding either to give evidence or corroborate already adduced evidence, but sometimes a witness may not wish to attend voluntarily and it then becomes necessary to compel his attendance where the applicant who requires it shows that the evidence is relevant.46 since the arbitral tribunal has no coercive power, it relies on the court to exercise such powers and assist the arbitral process by compelling attendance before any tribunal of a witness wherever he may be within nigeria. it may also order to bring up a potential witness in prison for examination before the arbitrator. section 23 of the act47 provides inter alia as follows: (1) the court or the judge may order that writ of subpoena ad testificandum or of subpoena duces tecum shall issue to compel the attendance before any arbitral tribunal of a witness wherever he may be within nigeria. (2) the court or a judge may also order a writ of habeas corpus ad testificandum shall issue to bring up a prisoner for examination before any arbitral tribunal. the application for the issuance of the witness summons and attendance of the witness shall be made by the party to the arbitral proceedings who desires his attendance. recognition and enforcement of award at the end of the arbitral process, the tribunal gives an award which is binding on parties. every arbitral award duly made is to be recognized as binding and is expected to be complied with.48 section 31(1), (2) (a) (b) and (3) provides thatan arbitral award shall be recognized as binding, and subject to section 32 of the act49, shall upon application in writing to the court, be enforced by the court. also an arbitral award may, by leave of the court or a judge, be enforced in the same manner as a judgment or order to the same effect. by virtue of the above stated provision of section 31, it is obvious that an arbitral tribunal has no machinery for enforcing its award. the arbitral tribunal becomes functus officio on rendering of its final award50. this indeed has created a vacuum in the arbitration process which the act has permitted the court to fill up. without a legal framework for recognizing or enforcing arbitral awards, the arbitration process would be of little value to anyone. an award will only be worth it for the winning party when such a party can enforce the stipulations of the award against the losing party51. for an award made pursuant to the act to be enforceable, the award must be in writing, signed and dated, the reasons upon which it is based must be stated unless the parties agreed that the reasons are not to be given, and the place of the arbitration must be stated. the award must be published to all the parties. this means that it is the court that gives effect to the award made by the arbitration tribunal. an award which cannot be enforced at the end of the day is useless. every arbitral award duly made is to be recognized as binding52 and is expected to be complied with. thus, while section 31(1) recognizes the award as binding, it is only upon application in writing to the court53 that it can be enforced. nikki tobi, opined that ‘an arbitral award per se lacks enforcement or enforceability…., and is a toothless dog which cannot bite until a court of law gives teeth to it54‘ impeachment of arbitral awards this is another area where arbitration process is dependent on the court and has to relate with the court. the arbitral tribunal has no jurisdiction to impeach its own award save and except for icsid awards. a party to the arbitral proceedings who is not satisfied with the award for any good reason has a right to apply to the court to set aside the award.55 sections 29 and 30 of the act56 clothe the court with the jurisdiction to impeach an arbitral award for reasons of misconduct, lack or excess jurisdiction. the combined effect of these sections allows a party who is aggrieved by an arbitral award57to, within 3 months from the date of the award or in a case falling within section 28 of the act, from the date the request for additional award is disposed of by the arbitral tribunal apply 46 o. bamigboye, op. cit, p. 20 47 arbitration and conciliation act, op. cit. 48 g. c. nwakoby, op. cit. p. 431 49 arbitration and conciliation act, op. cit. 50 g. c. nwakoby, op. cit. p. 431 51 o. bamigboye, op. cit. p. 23 52 this is the basis for res judicata which means that an award operates as a bar to a fresh arbitration or action unless an award as been nullified. see ajogwu f. op. cit. page 130. according to oguntade jca in okpuruwu v. okpokam supra, ‘…it operates as estoppels per rem judicatam’ 53 emphasis mine 54 arbico nigeria ltd v. nigerian machine tools ltd (2000) 15 nwlr (pt 789) 1 ca at p.32 55 g. c. nwakoby, op. cit. p. 429 56 arbitration and conciliation act, op. cit. 57 this must be a party to the agreement and consequently to the arbitral award and not under any contractual incapacity. african customary and religious law review 1 (2020) page | 77 to the court to set aside the award. if the application is not made within the stated time limit, the right is lost and barred.58 like a judgment, there is a rebuttable presumption in favour of an arbitral award and the burden of proof is on the party who is aggrieved and wishes to set aside the award59 and such application must be made by a party to the agreement or his personal representative60 protection of the res the arbitral tribunal has a right to order for the protection of the property forming the subject matter of arbitration so as to ensure that the proceeding is not rendered nugatory by the destruction of the subject matter or the scale of same by either of the parties to the arbitration agreement or their agents61. section 13 of the act62 vests the tribunal with powers to order any party to take such interim measures of protection as the arbitrator may consider necessary in respect of the subject matter of the dispute and request any party to provide appropriate security in connection with the subject matter.63 the implication of this provision is that the arbitral tribunal shall have the power to make interim orders directing either party to preserve the res pending the completion of the proceedings. it should be noted that this provision applies only where the property to be protected is in the custody of one of the parties. where the property is in the hands of a third party, the arbitral tribunal (for obvious reasons) has no such power against a third party. this means that power and jurisdiction of the arbitration tribunal to make order to protect the res is not absolute. this is because when the order is to affect a third party then the arbitral tribunal lacks the jurisdiction to do so. the tribunal only has jurisdiction to make order with respect to the parties appearing before it and no other. the tribunal has no right to make orders which could bind third parties64. in this situation the court will come to the rescue of the arbitral process. an application has to be made to the court for it to make an interlocutory order protecting the properties forming the subject matter of the arbitration. article 26 (3)65 of the arbitration and conciliation act which applies by virtue of section 53 of the act provides that ‘...a request for interim measures addressed by any party to court shall not be deemed incompatible with the agreement to arbitrate, or a waiver of that agreement. such interim measures includes ‘measures for the conservation of the goods forming the subject-matter in dispute, such as ordering their deposit with a third person or the sale of perishable goods’ this provision can also be extended to a situation where a party as a first step approaches the court for an order of preservation or conservation of the res pending the constitution of the arbitral tribunal.66 refusal of recognition and enforcement of award section 32 of the act provides for any of the parties to an arbitration agreement to request the court to refuse recognition or enforcement of the award; this application must be made at any time after the award is made, especially as the application and order for enforcement may be made ex parte.67 the grounds upon which the court is to refuse recognition or enforcement of the award is not stated under this section, nevertheless section 52224 provides for grounds upon which an application for recognition and enforcement may be refused in international arbitrations; and the courts have in the exercise of their discretion applied them to domestic arbitrations in nigeria. remission of award section 29(3)68 provides for the remission of an award to the arbitrators in limited circumstances. it provides that where an application is brought before the court for setting aside an award under subsection (1) of this section, the court may at the request of one of the parties, suspend proceedings for such period as it may determine to afford the arbitral tribunal an opportunity to resume the arbitral proceedings or take such other action to eliminate the ground for setting aside of the award.69 this provision shows that the court has a statutory jurisdiction to remit 58 araka v. ejeagwu (2000) 15 nwlr (pt. 692) 684; united insurance v. stocco (1973) 8 nscc. 96; middlelemis & gould v. hartlepool corpn (1971) i wlr. 1646; (1973) all e.r. 175 59 section 29(2) arbitration and conciliation act ‘…if the party making the application furnishes proof that the award contains decisions on matters which are beyond the scope of submission to arbitration…’ 60 o. bamigboye, op. cit. p. 22 61 o. bamigboye, op. cit. p. 23 62 arbitration and conciliation, op. cit 63 this is in order to maintain the status quo as between the parties to prevent one party suffering detriment against the other. it could be by a mareva injunction, appointment of receivers, detention, custody and preservation. 64 g. c. nwakoby, op.cit. p. 434 65 (borrowed from article 26 of the uncitral arbitration rules) 66busari o. 2012. protecting the res in arbitration – recent developments in international commercial arbitration. arbitration and adr committee session of the 6th business law conference of the nigerian bar association section on business law, lagos, nigeria 17th-20th june, 2012. 67 k.s.o & allied products ltd. v. kofa trading co. ltd. (1996) 3 nwlr 244 at page 254 where the supreme court approved the use of originating notice of motion and followed earlier decisions that ‘…where it is sought to enforce a right conferred by a a statute and in respect of which no rules of practice and procedure exist, the proper procedure is an originating notice of motion. 224 part iii of the arbitration and conciliation act 68 arbitration and conciliation act, op. cit. 69 j. o. orojo & m. a. ajomo, op. cit. p. 325 nwachukwu: an appraisal of the relationship between the courts and arbitral process in nigeria page | 78 the matters referred for the reconsideration of the arbitrator. it has been stated that the effect of this remission to the arbitrator is that the award may be so altered that there is no more ground to set aside under this section and that a party may only make the request where there is a pending proceeding for setting aside the award.70 this work agrees that this will help save some awards from failure. 3. conclusion and recommendations flowing from the ongoing, it is crystal clear that arbitration process has a lot of relationship with the court. it is a process which shall be meaningless and unattractive without its relationship with the court. this is because the arbitral tribunal has a lot of limitations imposed on it by the law. the courts assist the arbitral tribunal in those areas where it has limitations. it is discovered in the course of this work that, the courts are involved in the process of arbitration from commencement to recognition and enforcement of the awards. most of the courts and the court systems are supportive rather than interfering with the arbitral process. the nigerian judicial system and its enabling legal framework can be conveniently be described as one supportive system, this is evidence in current trend of our various high court civil procedure rules across the 36 state. it is therefore, a truism that the court can exist without arbitration but the arbitration process cannot exist without the court. this work recommends that the involvement of the court in arbitral process should be within the ambits of the act and should not be allowed to amount to interference in order that the arbitral process will lose its sanctity as an independent and efficient private dispute resolution process. there is need for a more harmonious relationship between the court and the arbitral process. in view of the foregoing, this work recommends the following in other to harmonize the relationship between the courts and the arbitral process: the act needs to be amended to increase and widen the powers of the arbitral tribunal in other to reduce their areas of limitations. for example, as arbitrators have power to make interim order preserving the res, the power to make interim order should not be limited to the parties in arbitration. it should be widened to also include third parties. this will also go a long way to reduce the involvement of court in arbitral process. it is recommended that a provision which allows the tribunal to adopt procedures suitable to the circumstances of the particular case should be inserted in our act. there is a need to further reinforce the arbitral process in order to reduce the degree of intervention in the arbitral process and to ensure that the concept of party autonomy is not restrained in the practice of arbitration. 70 o. bamigboye, op. cit., p. 23 acarelar 2 (2021) page | 81 urgent need for more legal intervention to curb sexual violence against female students in nigeria’s tertiary institutions* abstract: globally and in nigeria, tertiary institutions are known for academic and moral excellence targeted at shaping leaders and intellectuals for the development of the world. however, this is not the case today because educational institutions have lost the moral fabric that holds it due to incessant sexual harassments perpetrated toward female students both in developed and developing countries like nigeria. this negativity has transformed the respect and integrity accosted to tertiary institutions tagged with reports of sexual harassment. this work will attempt to investigate the likely causes of sexual violence in nigeria’s tertiary institutions, and thereafter proffer solutions to the identified problems. the study will examine the meaning, forms, causes, and effects of sexual harassment in nigeria’s tertiary institutions. it will also look into how sexual violence is curbed in some other jurisdictions, aside nigeria and thereafter make some recommendations. keywords: higher institution, sexual violence, tertiary institution, sexual harassment. 1. introduction sexual violence is so entrenched that it has become a regrettable part of the social fabric in nigeria and the world at large. it is a violent crime that has no place in any ideal society and no one can justify its prevalence in any community that thrive on mutual trust particularly our tertiary institutions. sexual harassment is becoming a common occurrence among students and the most vulnerable groups are the weak (mentally, financially and physically) female students. both male lecturers and students take undue advantages to abuse weak female students. although, sexual harassment is not exclusive to female students alone, male students most times face same violent acts, but it is not proportional to that of the female students. this is facilitated by the degree of freedom of social interaction among young men and women encouraged by the learning environment and lack of parental supervision because female students are away from home.1 sexual harassment also occurs in nigeria’s nursery, primary, secondary schools, polytechnics, colleges of education and so on. the level of sexual harassment that goes on in our tertiary institutions is alarming. in nigeria, aside from some laws that generally prohibit sexual violence like the vapp act, criminal code, penal code, and so on, there is no law expressly criminalizing sexual violence or harassment in nigeria’s tertiary institutions. as such, the criminalisation of sexual misconducts in educational institutions has become imperative. more so, sexual harassment has been in existence for a very long time, with very little done to address the situation holistically. it is pertinent to affirm here that the vast majority of cases of sexual violence against female university students in nigeria go unreported for various reasons associated with stigmatisation, character assassination, public backlash and limited access to justice for victims. many students who are victims of this harassment are not bold enough to report to school authorities for fear of being victimised in their examinations by the culprit lecturers and therefore most of them suffer in silence. in many cases, female students who have reported such cases have been subsequently targeted for reprisals by thugs, cultists or university teachers who are colleagues of the culprit. most nigerian communities believe in male supremacy; hence, sexual harassment is most times perceived as an acceptable exercise of male's prerogative over women's sexuality. due to the prevailing incidents of sexual harassment in *by sylvia chika ifemeje, phd, professor and dean, faculty of law, nnamdi azikiwe university, awka, anambra state, nigeria. phone: 08135726962 email: sc.ifemeje@unizik.edu.ng, *nwamaka iguh, phd, senior lecturer, faculty of law, nnamdi azikiwe university awka, nigeria; and *chinwendu prisca okeke, llb, llm candidate, faculty of law, nnamdi azikiwe university awka, nigeria.phone no: 08062172171. email: prisca.nwankwo@yahoo.com. 1aa kulima, b audu, mb kawu and ag mairiga, ‘sexual assault against female nigerian students’, (2010) 14(3), african journal, of reproductive health, 93. mailto:sc.ifemeje@unizik.edu.ng ifemeje, iguh & okeke: urgent need for more legal intervention to curb sexual violence against female students in nigeria’s tertiary institutions page | 82 schools, colleges and university campuses, nigerian scholars are gradually embarking on studying the nature and trends of sexual harassments in nigeria higher institutions, hence this research2. 2. meaning and forms of sexual violence sexual violence is a form of physical violence which includes forcing a person to participate in unwanted, unsafe, or degrading sexual activities. it is any sexual act, attempt to obtain a sexual act, unwanted sexual comments or advances, or acts to traffic, or otherwise directed, against a person’s sexuality using coercion, by any person regardless of their relationship to the victim in any setting, including but not limited to home and work. 3. more so, forms of sexual violence include rape, wife rape, defilement, unwanted sexual advances or harassment including demanding sex in return for favours, sexual abuse of mentally or physically disabled people, forced marriage or cohabitation, denial of the right to use contraception or to adopt other measures to protect against sexually transmitted diseases, forced abortion, forced prostitution and trafficking of persons for the purpose of sexual exploitation and violent acts against the sexual integrity of women including female genital mutilation and obligatory inspections for virginity4, incest and other forms of sexual abuses. research has shown how the penis and rape is been used as a weapon and an effective way by men to intimidate women and girls5. umeobi6 categorize the penis as topping the list of dangerous weapons on violence against women whose unauthorized use should be vehemently prohibited. an example of real sexual stories on sexual violence in nigeria’s educational institutions reported by the media is the story of an academic, dr boniface igbeneghu, who was a lecturer at the university of lagos. he was caught on camera, sexually harassing a disguised 17-year-old admission seeker 7 he was exposed following an investigative report by bbc africa tagged ‘sex for grades’ where an undercover journalist disguised as a 17-year-old secondary school graduate who was seeking admission to university of lagos state. dr. boniface promised her good grades and admission if she succumbs to his sexual advances failure of which she will lose out. the lecturer was suspended by both the university and foursquare gospel church. furthermore, sexual violence is not limited to women alone but can also be perpetrated against men, although not proportional to that perpetrated against the female folk. this work will focus on the form of sexual violence and harassment perpetrated by male teachers to female students’, male students to female students, male non academic staffs to female students, violence against the integrity of women, unwanted sexual advances and so on8 within the educational circle. 3. likely causes of sexual violence in higher institutions there are various factors that have been found to be the causes of sexual violence. these causes include but are not limited to the following. olatunji et al9 observed in their study that decline in the school cultural value system tends to encourage sexual harassment in tertiary institutions. they further stated that alcohol and drug use (e.g cocaine) by students and lecturers alike are the major causes of sexual violence and harassment in tertiary institutions. these intoxicants are most times taken with the intention that they aid reduce academic stress and when these people are intoxicated, they don’t consider the consequences of their actions thereby perpetrating sexual violence against their victims. on the 2 oo badejo, et al,’ sexual assault in ile ife, nigeria’, (2014) niger med j. 55.254-259 3who violence against women, a priority health issue 1997. united nations organization, declaration on the elimination of all form of violnece against women, un general assembly 1993, new york a/res/48/104 4world report of violence and health, (2014) <https://www.who.int/violence-injuryprevention/violence/ globalcampaign/en/chap6.pdf> accessed on 29th december 2019. 5c arinze-umobi, domestic violence against women in nigeria: a legal anatomy, (onitsha: folmech publishers, 2009) p.14. p.113. 6 ibid 7n lawal, ‘unilag lecturer caught on video sexually harassing admission seeker’. read more: <https://www.legit.ng/1263795-unilag-lecturer-caught-video-sexually-harassing-admission-seeker.html> accessed on 5th december 2020. 8na adeleke et al, sexual assault against women at oshogbo south western nigeria’, (2012) 15(2) niger j clin pact. 190193 9ba olatunji, as iyekolo, ao ayorinde, a samuel, (2013) lecturers’ perception of causes and consequences of sexual assault in tertiary institutions of kwara state, nigeria. research on humanities and social sciences 3(20). 82-87 acarelar 2 (2021) page | 83 other hand, imonike et al10 argued that female students are the causes of their own predicament because most of them believe that ‘you can use what you have to get what you want’, simply to get high grades from their lecturers. also, some students rely on their womanhood scale through school because they are morally bankrupt. as a result of this, they seduce fellow male students and examiners. they also do so by dressing in obscene and revealing dresses to captivate the attention of the perpetrators, thereby making it difficult for administrative, non administrative and their co-male students to concentrate in school environments. however, the researcher disagrees with imonike et al and states that indecent dressing is not sufficient reason for staffs to breach the duty of care bestowed on them in the unequal relationship they share with female students. lastly, olaigbe and fagbenro11 stated lack of academic integrity, indecent dressing, declining academic standards, inadequate security, gender stereotype, lack of specific policies on sexual harassment, and patriarchal configuration of the society as cause of sexual harassment in tertiary institutions. the researcher strongly agrees that lack of specific policies and laws against sexual harassment in schools are one of the major causes of the prevailing increase of sexual violence against women in nigeria institutions. 4. effect of sexual violence the threat and incessant rise of sexual violence in nigeria’s tertiary institutions has consequences that are far reaching both for female students and for the prestige of the institution in question. below are brief illustrations of some effects of sexual violence thus: psychological problems e.g. female students can be vulnerable to stressful traumatic symptoms which are capable of distorting their thoughts and comes in form of depression, sleeplessness, fear, post-traumatic stress disorder, loss of trust and so on. more so, it can lead to a lower academic standard of tertiary institutions (the institution will be seen as a school that gives certificate or marks for sex), loss of academic interest and school drop-out (for females who experience sexual harassments and are often frustrated and making them drop grades or by a long-term drop out from school. in the same vein, health challenges can ensue as an effect of sexual violence, for example, female's victims are frequently infected with hiv/aids and other sexual issues such as transmitted infections, unwanted pregnancy and other health related problems. 5. legal framework on the fight against sexual violence international legal frame work the united nations declaration of human rights 1948 this law affirms that all human beings are born free and equal in dignity and rights12. it prohibits torture, inhuman and degrading treatment or punishment and provides for equality before the law. this therefore means that the right of women should be respected and this includes the prohibition of sexual violence in tertiary institutions. declaration on the elimination of violence against women 199313 this law condemn all form of psychological and physical violence against women. it has been ratified but is yet to be domesticated as part of nigerian laws. the law recommended that state parties ensure laws are enacted against family abuse, rape, sexual assault and other forms of gbv14 convention on the elimination of all forms of discrimination against women 1979 (cedaw) cedaw provides that states should ensure that any act or practices of discrimination against women are curbed. it also states that appropriate measures should be taken to eliminate discrimination against both men and women for equality of all. also, cedaw committee listed a wide range of obligations 10j imonike, p idogho, o aluede, (2011), a survey of teachers’ and students’ perception of sexual harassment in tertiary institutions of edo state, nigeria, 5(5) international multidisciplinary journal, ethiopia, pp. 412-423. 11ta olaigbe and da fagbenro (2021) fighting female sexual harassment in nigerian tertiary institutions, journal of international cooperation and development, 4(1), 103-116 12 undhr 1948, article 1 13 article 1 14para 24(b) committee on the elimination of discrimination against women; general recommendation (1992) on violence against women. ifemeje, iguh & okeke: urgent need for more legal intervention to curb sexual violence against female students in nigeria’s tertiary institutions page | 84 of state parties to combat sexual violence, appropriate treatment for victims in the justice system, counselling and support services, medical and psychological assistance to victims and so on15. national legal framework the constitution of nigeria (as amended in 2011) is the supreme law for curbing sexual violence against women in nigeria. chapter 4 deals extensively with fundamental human right and sexual violence is a breach of chapter 4. more so, section 34 prohibits the violation of people’s right to dignity of human person and torture. furthemore, the vapp act is another law that prohibits sexual violence in nigeria. this act was signed by the former president good luck jonathan on 25th of may 2015. the act deals with sexual violence in sections 1, 6, and 26 which covers the offence of rape, female genital mutilation, incest, indecent exposure of one genital organ respectively. some states have also enacted their own laws protecting female victims from sexual violence. for instance, ekiti state gender-based violence (prohibition) law, 2019 to address gender based violence (gbv) perpetrated against women in which sexual violence is included as a form of gbv. furthermore, section 352 of the criminal code which is applicable in southern nigeria provides for 14 years imprisonment for anybody that assaults another with the intent to have carnal knowledge of him or her against the order of nature is guilty of a felony. more so, the law provides that anyone who has unlawful carnal knowledge of a woman or girl, without her consent or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of harm, or by means of false and fraudulent representation as to the nature of the act or in the case of a married woman, by personating her husband, is guilty of an offence which is called rape16. under the criminal code, the punishment for rape is life imprisonment17. in the same vein, the penal code 18 is applicable in northern states of nigeria, and is replete with provision against sexual violence offence punishable with seven years’ imprisonment and a fine19. rape20 is said to occur under the penal code where a man has sexual intercourse with a woman in any of the following circumstances: (a) against her will, (b) without her consent, (c) with her consent, when her consent has been obtained by putting her in fear of death or hurt.(d) with her consent when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.(e) with or without her consent, when she is under fourteen years of age or of unsound mind. under the code, mere penetration is sufficient to constitute sexual intercourse necessary for the offence of rape and the punishment for rape is life imprisonment21. this is commendable, as it will be serving as deterrence to perpetrators. aside from these laws, there is no law or policy expressly prohibiting sexual harassment in tertiary institutions in nigeria. commendably, there is a proposed legislation on sexual harassment in nigeria; it was sponsored by the senate deputy president, ovie omo-agege22. the bill, is titled, ‘a bill for an act to prevent, prohibit and redress sexual harassment of students in tertiary educational institutions and for other matters connected therewith 2019’. the bill proposes up to 14 years jail term, with a minimum of five years, without an option of fine, for any educator who commits sexual offences in tertiary institutions. section 2 of the bill defines sexual harassment to include sexual intercourse between an educator and a student where the student is below the age of 18 years or is an imbecile or of generally low mental capacity or is physically challenged, any unwelcome sexual attention from an educator who knows or ought reasonably to know that such attention is unwelcome to the student; any unwelcome implicit or explicit behaviour, suggestions, messages or remarks of a sexual nature that have effect of offending, intimidating or humiliating the student or a related person in circumstances which a reasonable person having regard to all the circumstances would have anticipated that the student or such related person would be offended, intimidated or humiliated; any implied or expressed promise of 15committee on the elimination of all forms of discrimination of violence against women, general recommendation no.19 (eleventh session, 1992) u.n document cedaw/ c/1992/l.1/add, 15 16 criminal code, laws of the federation of nigeria 2004, section 357. 17 ibid, section 358 18 penal code act, 1960 19 ibid, section 281 penal code 20 ibid, section 282 penal code 21 ibid, section 283 22h umoru, ‘sexual harassment on campus: how reps, asuu blocked first bill against perpetrators’, (2019) < https://www.vanguardngr.com/2019/10/sexual-harassment-on-campus-how-reps-asuu-blocked-first-bill-against perpetrators/> accessed on 2nd february 2021. https://www.vanguardngr.com/2019/10/sexual-harassment-on-campus-how-reps-asuu-blocked-first-bill-against acarelar 2 (2021) page | 85 reward by an educator to a student or related person for complying with a sexually oriented request or demand; or any implied or expressed threat of reprisal or actual reprisal from an educator to a student or related person for refusal to comply with a sexually oriented request or demand23. section 3 shows that the bill, if passed into law will extend beyond lecturers as it relates also to non-academic staffs. this is a welcomed development, because more often than not, lecturers have been at the receiving ends of similar laws as this forgetting that other non-administrative staffs and costudent are also culpable. unlike most other sexual offences, the bill provides that consent shall not be a defence as the only tenable defence to the offences created under section 4 of the bill is that the educator and the student are legally married. the student or any other concerned person could further report to the nigerian police force or to the attorney-general for criminal prosecution. the bill further saddles the administrative head with the responsibility of ensuring the protection of any student that files a sexual harassment complaint from victimization. any educator, who victimizes a student because of sexual harassment complaint filed, shall be liable to the same punishment as the educator whom the student originally complained against24. the bill also recommends expulsion or suspension for students whose claim of being serially abused by lecturers or educators are found to be false by any competent court25. although encouraging, it is opined that this bill is not all encompassing but limited in scope because it does not include sexual violence perpetrated by student against his/her fellow student, and sexual violence perpetrated in nursery, primary and secondary schools.. the bill was passed by the 9th senate on the 7th of july 2020. it has been passed to the house of representative for concurrence after which it will be sent for assent26. 6. curbing sexual harassment in some other jurisdictions sexual harassment is not particular to nigeria alone but is a universal phenomenon that occurs in universities across the globe. on this basis, it is thoughtful that an insight of how some countries strive to curb sexual harassment in their educational institutions be looked into. in the united states of america, studies have it that incidents of sexual harassments are shockingly prevalent in college campuses nationwide. sexual assault disproportionately affects female students, although both male and female are targets of violence on campus, and impedes survivors’ ability to participate fully in their education. the title ix of the education amendments of 1972 is the federal law that prohibits sex discrimination in education. it promotes equal opportunity by providing that no person should be subjected to discrimination on the basis of sex under any educational programme or activity receiving federal financial assistance. under the law, sexual violence refers to physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent (e.g due to the student’s age or use of drug, alcohol or an intellectual or other disability that prevents the student from having the capacity to give consent).27 sexual harassment is seen as an unwelcome conduct of a sexual nature, including unwelcome sexual advances, requests for sexual favours, and other verbal, nonverbal, or physical conduct of a sexual nature. schools are mandated to respond promptly and effectively to sexual harassment including sexual violence that creates a hostile environment. title ix protect students from unlawful sexual harassment in all school programs or activities whether they take place in the facilities of the school, at a class or training program sponsored by the school at another location, or elsewhere. title ix protects both male and female students from sexual harassment, regardless of who the harasser may be. title ix has long required schools to evaluate their current practices, adopt and publish a policy against sex discrimination, and implement grievance procedures providing for prompt and equitable resolution of students and employees discrimination complaints. schools are also required to appoint a title ix coordinator to oversee these activities, review complaints and deal with patterns or systemic problems (even when there are no formal complaints). the school must notify students of their assigned coordinators. after investigation on a complaint of sexual harassment, title 23 ibid 24 ibid 25ibid 26i queen esther, ‘senate passes antisexual harassment bill’.<http://www.premium timesng.com> accessed on 7th december 2020. 27intersection of tittle ix and the clery act, ‘document created by the white house task force to protect students from sexual assault’ (april 2014), <http://www.justice.gov/archives/ovw/page/file/910306/download>accessed 24thmay, 2020. ifemeje, iguh & okeke: urgent need for more legal intervention to curb sexual violence against female students in nigeria’s tertiary institutions page | 86 ix requires the school to inform the complainant the outcome of the investigation. whether or not it found that the sexual violence occurred, any individual remedies offered or provided to the complainant or any sanctions imposed on the perpetrator that directly relate to the complainant, and other steps the school has taken to eliminate the hostile environment and prevent recurrence.28 sanctions that directly relate to the complainant include but are not limited to ensuring that the perpetrator stays away from the complainant until both parties graduate, prohibiting the perpetrator from attending school for a period of time or transferring the perpetrator to another hall, other classes or another school. another law used to combat sexual harassment in educational institutions is the clery act, 1990 the jeanne clery disclosure of campus security policy and campus crime statistics act (clery act) requires colleges and universities who participate in federal financial aid programs to disclose campus crime statistics and security information and every school provides this information publicly. the clery act promotes campus safety by ensuring that students, employees, parents and the broader community are well informed about important public safety and crime prevention matters. institutions that receive title iv funds must disclose accurate and complete crime statistics for incidents that are reported to campus security authorities (csas) and local law enforcement as having occurred on or near the campus. schools must also disclose campus safety policies and procedures that specifically address topic such as sexual assault prevention, drugs and alcohol abuse prevention and emergency response and evacuation.29 the clery act also promotes transparency and ongoing communication about campus crimes and other threats to health, safety and empowers members to take a more active role in their own safety and security. also in 2019, the congress reauthorized the violence against women act and included provisions to include campus safety. school are now required to report additional crime statistics, (on domestic violence, dating violence, and stalking), update procedures following an incident of sexual violence, and provide prevention and bystander intervention training to all students and employees30. institutions must disclose crime statistics for clery reportable offences that occur on its so-called ‘clery geography’. clery geography includes three general categories: campuses31, non campus building or properties32or public properties33. the clery act requires institutions to issue timely warning to the campus community about crimes that already occurred but may continue to pose a serious or ongoing threat to students and employees. timely warnings are only required for clery reportable crimes that occur on clery geography although institutions are encouraged to issue appropriate warnings regarding other criminal activities that may pose a serious threat as well.34 the clery act specifically mandates that each institution shall develop and distribute procedures for simultaneously notifying the accusers and accused of the outcome of institutional disciplinary proceedings.35 in the same vein, since 1968, the department of education has administered the civil rights data collection (crdc), which collects data on key education and civil rights issues in our nation’s public schools. the crdc has been improved to shed additional light on the pervasiveness of sex discrimination, including sexual harassment and violence, in schools. 28ibid 29ibid. 30ibid, see also 20 u.s.c. s 1092(f) (1) (f) (iii) and 20 u.s.c. s 1092(f) (7). 31intersection of title ix and the clery act, ibid, campus is defined as any building or property that an institution owns or controls within a reasonably contiguous area that directly support or relate to the institution’s educational purposes. on campus also includes: residence halls and properties the institution owns and students used for educational purposes that are controlled by another person (such as a food or retail vendor). the definition of controlled, includes all such properties that are leased or borrowed and used for educational purposes.20 u.s.c. s.1092 (f) (6) (ii). 32intersection of title ix and the clery act, ibid, non-campus building or properties is defined as any building or property that is owned or controlled by a recognized student organization and any building or properties that is owned or controlled by the institution that is used in support of its educational purposed but is not located within a reasonably contagious area to the campus. see 20 u.s.c. s 1092(f) (6)(iii). 33intersection of title ix and clery act, ibid, public property is defined as all public property within the reasonably contiguous geographic area of the institution that is adjacent to all accessible from a facility the institution owns or controls and that is used for educational purposes. examples include sidewalks, street, and parking facilities. see 20 u.s.s.c. s.1092 (f) (6) (iv). 34intersection of title ix and clery act, see also 20u.s.c. s.485 (1) (j) (3): handbook, 118. 35intersection of title ix and clery act, ibid. see also 20 u.s.c. s 485f(1)(j)(8)(b)(iv)(iii)(aa) acarelar 2 (2021) page | 87 in the same vein, the australia’s respect now always campaign was introduced by australia’s 39 universities. the campaign sought to raise awareness of sexual assault and sexual harassment, make support services for students more visible and accessible, obtain data to guide further improvement in university policy and practice, and help universities share best practice resources.36 as part of the campaign, universities australia also developed ten-point action plans which include initiatives such as respectful relationships education and specialist training for university staff and counsellors. in january 2019, the tertiary education quality and standards agency (teqsa) released their report to the federal minister of education on higher education provider responses to sexual assault and harassment. overall, teqsa found the majority of universities have done the following:  accepted the change the course recommendations and are responding to the issue of sexual assault and sexual harassment  established a sexual assault/sexual harassment task-force  implemented or strengthened a policy on sexual assault and sexual harassment  conducted external or internal reviews of existing policies and response pathways  offered online and face-to-face training for university staff and support services  offered counselling services (some of whom collaborate with external rape/sexual assault support services)  reported incident data internally.37 the initiatives and actions taken to date by the majority of australian universities are commendable but so much more needs to be done within and beyond universities to curb sexual harassment in australia. thirdly, in south africa, various acts protect student against the misuse of power by educators. sexual harassment in the classroom is managed in terms of section 9 of the south africa constitution which states that girls/boys must be treated equally in schools and be free from sexual harassment in any way. all learner have the right to equal schooling,38 the right not to be unfairly discriminated against,39the right of protection of dignity and integrity,40the right to freedom,41 privacy42 and to a safe environment.43 sexual harassment infringes upon each and every one of these above stated rights granted by the constitution. an amendment to the employment of educators act44 ensures that disciplinary actions has to be taken against educators who are found guilty of having a sexual relationship with a learner who attends the same school where the educator teaches, even if there was mutual consent, and requires the dismissal of such educators from their employ. the same goes for an educator who sexually harasses a learner. the south african council for educators (sace) will ensure that such a teacher’s name is struck from the role and that the person may not be employed elsewhere as an educator, not even by private institutions or by any other provider. this principle is guided by section 23(c) of the south african council for educators act.45 the relationship between learners and educators is inherently unequal and fragile, and is prone to misuse by whom the power rests. the most prevalent defence raised by the educators was mutual consent, which can never be considered true consent. furthermore, south african universities responsibilities to address gbv on campus derive from among others, the criminal law (sexual offences and related matters) amendment act 32 of 2007, the domestic violence act 116 of 1998 and the promotion of equality and prevention of unfair discrimination act 4 of 2000 and the department of higher education and training policy. while most universities in south africa have sexual harassment legislations and policies, the efficacy of these policies have been brought into 36the conversation, ‘universities have made progress on responding to sexual assault, but there’s more to be done’ (2019)<http://theconversation.com/universities-have-made-progress-on-responding-to-sexual-assault-but-theresmore-to-be-done-111343> accessed 5th february 2021. 37ibid. 38south africa constitution, 1996 s.29. 39ibid s.9 40ibid s.10. 41ibid s. 12. 42ibid s.14. 43ibid s.24 44employment of educators act 76 of 1998, section 17(b), (c) and (d) (as amended by the education amendment act, 53 of 2000. 45south african council for educators act (sace) 31 of 2000. ifemeje, iguh & okeke: urgent need for more legal intervention to curb sexual violence against female students in nigeria’s tertiary institutions page | 88 question given the low reporting rates46. this is a complex issue for universities to deal with as they want to be perceived as taking sexual harassment seriously but at the same time, if they actively address it there is a concern that there will be an increase of reporting which could tarnish their institutional image47 further, it must be reiterated that while many universities have policies many technical and vocational education and training (tvet) colleges do not48, in south africa. 7. conclusion and recommendations from the investigation, it is glaring that sexual violence is a great concern that requires prompt attention to rectify the incessant rise of sexual violence, and to ameliorate the suffering of female students in higher institutions both in nigeria and worldwide. in the same vein, sexual harassment can be caused by various factors like decline of cultural values, intake of hard drugs and intoxicants, indecent dressing, poverty and patriarchy. it also has adverse effect on students and could lead to sleeplessness, loss of academic interest, dropping out from school, hiv and aids, unwanted pregnancy and so on. it is also obvious that nigeria tertiary institutions lack express law to deter, regulate and punish sexual harassment in higher institutions. as such, the immediate assent of the ‘bill for an act to prevent, prohibit and redress sexual harassment of students in tertiary educational institutions and for other matters connected therewith 2019’ is recommended. the assent of the bill into law and the enforcement of other laws combating sexual violence is necessary to creating a conducive, disciplined and healthy environments to ensure that the prestige of higher institutions are maintained, and students are given equal and safe ground to excel academically. furthermore, legal interventions alone is not sufficient to curb sexual violence in tertiary institutions, therefore, media houses, community based approach, medical personnel, religious leaders and so on should be involved in the fight against sexual violence in tertiary institutions. curbing sexual violence against female students in nigeria’s higher institutions is largely centred on the criminal justice system, laws and its implementation and enforcement. more so, multidimensional approach should be utilized whereby education, legal intervention, community based approach, religious intervention, medical practitioners and so on are collectively used to combat sexual violence in tertiary institutions. for instance, medical practitioners should ensure that victims experience extended care, advice and safety by conducting physical examination and recording it, sensitizing students on the danger of rape, sexually transmitted diseases and so on and lastly directing victims to seek legal aid in case the fall victim to sexual violence. more so, students should be sensitized by educational communities via school curriculum, seminars, workshops, and other public means of disseminating information. furthermore, the media (e.g. television, radio, social media and so on) should be involved to change students and the public mindset on sexual violence. students should also be advised to report sexual violence and a reputable means should be created to allow students privately report sexual violence with the enactment of express policies to combat sexual violence. furthermore, looking at the methods employed by the united state of america, south africa and australia to curb domestic violence in their educational institutions, as discussed above, it is further recommended that nigeria emulate or take the following tips: there should be creation and enhancement of a feasible law and policy on sexual harassment in nigeria that will cut across all educational institutions. the implementation of the proposed law should be monitored by an agency created specifically to handle such sexual harassment cases. universities should launch self-awareness and healthy behavior programs to educate students on the dignity of human beings irrespective of gender, class and age. there should be equal participation of women and men in institutions. more female staffs are needed to participate in the decisionmaking process of the institutions. gender specific knowledge should be integrated in the curriculum. colleges and universities should conduct training sessions on sexual harassment for faculty, staff, and students. these training sessions should be mandatory, held annually and have the active support and participation of the administration. statistics should be kept on sexual violence, its increase or reduction rate and the extent of its eradication in educational institutions nationwide. 46a gouwsand and a kritzinger, ‘dealing with sexual harassment at institutions of higher learning: policy implementation of a south african university’, (2007), 21 (1) south african journal of higher education, 68-84. 47ibid 48department of higher education and training (dhet), 2017. addressing gender-based violence in the post-school education and training sector: draft policy and strategy <https://www.news.uct.ac.za/ima ges/userfiles/downloads/media/policyframework_draftzero_v7_september2017.pdf>accessed on 21st may 2019 kalu, anushiem & ugwuanyi: liabilities of bankers to their customers and third parties in bankercustomer relationship in nigeria: an overview 84 | p a g e liabilities of bankers to their customers and third parties in bankercustomer relationship in nigeria: an overview* abstract it is undoubtedly that banks have played significant roles in the development of nigeria’s economy through their multifarious services rendered to their customers including the general public. the key factor in the performance of these multifarious services is the consideration of the various legal relationships that exist between a bank and its customers as well as third parties is what? it is therefore imperative to appraise the nature of the legal relationships of banks and their customers as well as third parties. in the midst the legal relationship that exist between bankers and their customers, there are liabilities of bankers to their customers and third parties. the aim of this research is mainly to undertake an overview of the liabilities that exist between bankers and their customers as well as third parties in the banker-customer legal relationship. this research work also, examines the liabilities of bankers to their customers and third parties in the course of their rendering banking services and proffers suggestions. the researchers adopted doctrinal legal research methodology with the use of analytical approach through primary and secondary sources such as statutes, case law, textbooks, journal articles, internet materials. the research found among other things that the relationships between bankers and their customers are largely contractual and tortious with reciprocal rights and duties inuring to both parties and third parties. the research concluded inter alia that the liabilities of bankers extend beyond mere custodianship of funds. banks are entrusted with the duty of care, confidentiality, and competence in managing customer accounts and transactions. these duties form the foundation of trust and confidence between banks and their customers. also, as the banking industry in nigeria becomes increasingly digital, the responsibilities of banks to safeguard customers’ funds and information become more complex. the research therefore, recommended the need for robust regulatory frameworks to enforce accountability and mitigate risk arising from banker-customer relationship so as to minimize the liabilities. keywords: bankers, liabilities to customers and third parties, bankers-customer relationship, nigeria nigeria 1. introduction there is no gainsaying the fact that bankers services to the development of nigeria’s economy cannot be overemphasized. without a customer’s deposit in banks, it will be difficult if not impossible for banks to function effectively. however, in the course of their banking services, banks incur a lot of liabilities to their customers including third parties. in order to qualify a person as a customer, there must be some sort of account, either a deposit or current account or some similar relations.1 in view of the ‘debtor-creditor’ relationship between the customer and the bank, the bank accepts deposits from its customer and becomes a debtor to the customer. on the other hand, where the bank lends money to customers, it becomes the creditor2 while the customer becomes the debtor.3 this work is therefore an examination of the liabilities of bankers to their customers vis-a-vis third parties. even though the relationship between a bank and its customer is both contractual and tortuous, banks ought to be care and cautious not be liable to their customers. 2. liabilities of bankers to their customers the liabilities in banker-customer relationship are both a contractual and tortious. it consists of general and special contracts arising from the particular requirements of the banking business.4 it is said to revolve between that of a ‘principal and agent’, ‘trustee and beneficiary’ but fundamentally, that of a ‘debtor-creditor’ relationship,5 wherein the banker is the debtor and the customer is the creditor, with the roles sometimes reversed.6 in okobiemen v. u.b.n plc7, it was held that the relationship between a banker and customer remained fiduciary and sometimes called confidential relationship. it is equally contractual; hence a banker has the duty in contract to exercise reasonable care and skill in carrying out its part with regard to transaction within its contract with customers. *by uwadineke c. kalu, llb, bl, llm, phd, professor of law, department of property and industrial law, faculty of law, nnamdi azikiwe university, awka. tel: 08037727063, e-mail: uc.kalu@unizik.edu.ng. *matthew izuchukwu anushiem, llb, bl, llm, phd, senior lecturer, department of human rights law, faculty of law, nnamdi azikiwe university awka. tel: 08032641757. e-mail: mi.anushiem@unizik.edu.ng; and *titus onyekachi ugwuanyi, llb, bl, llm candidate, faculty of law, nnamdi azikiwe university awka. tel: 08033978089. e-mail: onwajesus@gmail.com. 1 great western railways v london and country banking co. (1901) ac 414, per lord davy. 2 foley v hill (1848)2 hl cas. 28 where this creditor and debtor relationship was clarified. 3 ml ahmadu, the law of banking in fiji (london: avon books, 1998), p. 33. 4 k igweike, law of banking and negotiable instruments (onitsha: africana first publishers ltd, 2005) p. 73. 5k muhammad, ‘an appraisal of the relationship between banker and customer in nigeria’, <http://www.iiste. org/journals/index.php/ejbm/article/viewfile/20255/20619> accessed on 12 august 2021. 6 o adeniji, the law and practice of banking in nigeria (ile-ife: obafemi awolowo university press ltd, 1988) p. 37. 7 (2019) 4nwlr (pt. 1662) 267, page 280 paras e-f, f-g, g-h (ca). mailto:mi.anushiem@unizik.edu.ng african customary and religious law review (acarelar) 5 (2024) 85 | p a g e banker’s liability for failure to honour customer’s cheque with respect to the duty to pay customer’s cheques, lord macnaughten, in bank of england v vagliano brothers8 held that a banker must pay off-hand as a matter of course, bills9 presented for payment, duly accepted and regular, and complete on the face of them. as a general rule, this doctrine would appear to apply with equal force to cheques presented for payment and so does the obligation extend to any agreed overdraft,10 provided that such an instrument is properly drawn by the customer and presented during banking hours at the branch where the account is kept or elsewhere as may be agreed and also has no legal bar prohibiting payment. as amply stated by salvage, j. in aderibigbe v national bank of nigeria ltd:11 it is well known that the primary function and duty of any bank is to honour the cheques of his customer, provided that the state of the customer concerned is such as to warrant the bank doing so, and there is no legal reason or excuse to the contrary. the obligation of the bank to pay therefore is only subject to the condition that there are funds of the customer sufficient and available for the purpose.12 the court of appeal in the case of citi bank nigeria limited v. gratis properties limited13 held that a cause of action will accrue where a bank refuses to pay a customer’s cheque, when in fact he has to his credit at least an equivalent to that endorsed on the cheque he issued on his account. the act of dishonouring a cheque in such circumstances constitutes a breach of contract for which the bank is liable in damages. it is therefore implicit that where a banker wrongfully dishonors a customer’s cheques in spite of the fact that there are sufficient funds in the customer’s account, the bank will be liable for breach of contract14 and/or libel in tort where the notice of dishonour of the cheque is defamatory.15 this action is predicated on the principle that the bank cannot without any valid reason dishonor a cheque drawn by its customer.16 banker’s liability to customer for honouring a defective cheque section 59(1) and (2) of the bills of exchange act provides that ‘a bill is discharged by payment in due course by or on behalf of the drawee or acceptor; ‘payment in due course’ means payment made at or after the maturity of the bill to the holder thereof in good faith and without notice that his title to the bill is defective.’ it can be construed from the above provision that where the banker pays on an order that proves to be invalid, he will not be entitled to debit the customer's account with the amount paid out,17 unless the circumstances are such that any reasonable man in his position ought not to know of any defect in title. defect in title before payment may be in the form of an irregularity on the face of the instrument, for example: (a) where the drawer's signature is absent; (b) where the drawer's signature on the mandate is irregular; (c) where the drawer’s signature on the mandate does not correspond with that in the bank’s database; (d) where the mandate is insufficient (e.g., a 2nd or 3rd signature is required); (e) where there is an alteration that requires the drawer's confirmation (e.g. alterations as to date, or amount in words differing from the amount in figure, or crossing, or payee's name, etc); (f) where the cheque is mutilated thus requiring the drawer's confirmation; (g) where the cheque is out of sequence (for instance, if the number of the cheque presented is too far from the number of the last one presented); (h) where the cheque is ‘out of date' or 'stale' (i.e. if the cheque is more than six months old from the date thereof); (i) where the endorsement on the cheque is irregular; etc. in the case of donasulu brothers (nig) ltd v. zenith bank18, the bank was held liable for negligence in payment of defective cheque. 8(1891) ac 107 hl; gaylord restaurants ltd v united bank for africa ltd, (unreported) judgment of the lagos state high court in suit no. id/46/77. 9section 2(1) of the bills of exchange act, cap. b8 laws of the federation of nigeria 2004 defines the term ‘bill’ to mean ‘bill of exchange’. the same statute defines ‘bill of exchange’ as an unconditional order in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time a sum certain in money to or to the order of a specified person, or to bearer. see ibid, section 3 (1). note that section 73 defines a cheque as a bill of exchange drawn on a banker payable on demand, and the provisions applicable to a bill of exchange payable on demand equally apply to a cheque. 10 rause v bradford banking company (1848) ac 586. 11 (1977) 7 cc 1401/1404. 12 royal petroleum co. limited v first bank of nigeria limited (1997) 6 nwlr (pt. 510) 584. 13 (2015) lpelr-24817 (ca) 14 marzetti v williams (1824-34) all er 150; eo eyo v bank of west africa (1964) lr 34. 15citibank nigeria ltd v martins ikediashi (2014) lpelr-22447(ca). note that proof of actual damages in such cases is not necessary since libel is a tort actionable per se. see balogun v nbn ltd (1978) nscc 13. such terms like ‘refer to drawer’, ‘present again’, or ‘insufficient funds’ have been held to be defamatory. see davidson v barclays bank ltd (1940)1 all er 316; allen v county & westminster bank (1915)31 tlr 210. indeed, where the words used in dishonour of the cheque are contrary to the circumstances or false, an action in libel can properly lie. see fbn ltd v ap ltd (1996)4 nwlr (pt. 443) 438. 16gray v johnson (1968) lr 1. see a adebayo, ‘definition of banker and a bank customer confirmed’, <https://www.academia.edu/5778055/definition_of_a_banker_and_a_bank_customer_confirmed>, last accessed on 27th june 2021. 17ashubiojo v african continental bank (1966)2 all nlr 203. 18 (2019) lpelr-48605 (ca) kalu, anushiem & ugwuanyi: liabilities of bankers to their customers and third parties in bankercustomer relationship in nigeria: an overview 86 | p a g e banker’s liability to customer on crossed cheques a cheque may be crossed generally or specially.19 a cheque is generally crossed when it bears on its face an addition of the words ‘& co.’ or any abbreviation thereof between two parallel transverse lines with or without the words ‘not negotiable’ or where it simply bears on its face two parallel transverse lines with or without the words ‘not negotiable’.20 a cheque is specially crossed where it bears on its face an addition of the name of a banker with or without the words ‘not negotiable’.21 where a cheque is crossed, irrespective of the nature of the crossing, it is mandatory that it should be paid through an account and not across the counter, in addition to any other instructions that may be embodied in the crossing; otherwise the banker may be liable to the owner of the cheque for any loss occasioned by such default.22 under section 81(1) of the bills of exchange act, it is the duty of a banker to refuse payment of a cheque crossed specially to more than one banker unless the cheque is crossed to an agent who is a banker for collection. banker’s liability to customer for breach of duty of secrecy further, the banker’s implied duty of secrecy towards its customer, otherwise known as the ‘duty of nondisclosure’, presupposes that the banker has a duty to maintain secrecy in respect of the state of a customer’s account23 and will not divulge it to any person, not even the customer’s spouse.24 it is implicit that where the banker breaches this duty and without just cause, the banker will be liable to the customer for the breach, such that the customer can sue the banker for breach of contract.25 in united bank for africa plc (uba) v. vertex agro ltd26; when the bank cannot show that the md of vertex agro ltd received any one time password (otp) sms on the hardware token or his designated telephone number in respect of the unauthorized transactions; an evidence of fraud analyst called by vertex was believed by the court to the effect that vertex’s phone number was taken off the uba data base at the time the fraudulent transactions were done to avoid detection of the transactions at the time they were being done. the court of appeal held that the bank was indeed liable in negligence for failure to safeguard the company’s account. the court of appeal held that only persons that have access to banks database can take off a number from it and restore it later to avoid detection of such unauthorized withdrawals and the identity of the person that did it. it is obvious that only the bank’s staff can have such access. banker’s liability to customer for breach of duty to exercise due care and skill with respect to the banker’s duty to exercise a duty of care and professional skill in his dealings and relationship with his customer, the law expects a banker to exercise a due care and professional skills in its dealings and relationship with his customer.27 the law sets and expects from a banker a reasonable standard of care in the conduct and performance of his activity and in executing its services. where there is a shortfall from this standard in the course of executing a service, the tort of negligence becomes relevant and if the banker is found careless in dealing with the affairs of his customers, he is liable for breach of his contractual duty. thus, in akwara v ibwa ltd,28 the court of appeal awarded the customer n4.5 million as damages for negligence misstatement on a sum of n21, 717,480 lodged with the bank. section 37 (3) of cybercrimes act29 provides that a financial institution that makes unauthorized debit on a customer’s account shall upon written notification by the customer, provide clear legal authorization for such debit within 72 hours without delay. the section made it an offence punishable by a fine of five million naira30. in royal united (nig) ltd v. sterling bank31, the court of appeal found the respondent bank liable in negligence when the bank issued a cheque meant for one entity to another entity. banker’s liability to customer for breach of duty to render statement of account with respect to the banker’s duty to render statement of account implied from the banker-customer relationship, it is the duty of the banker to give periodic statement of the account to the customer within reasonable intervals. breach of this duty makes the banker liable to the customer for damages, usually nominal damages depending on the time lapse. in the case of sudais oil & gas ltd & anor v. gtb32, the court of appeal relying in the supreme 19 section 79(1) of bills of exchange act 20 section 78(1), ibid 21 section 78(2), ibid 22 section 81(2), ibid. also see ladipo v standard bank of west africa (1968)3 alr comm 287. 23 savannah & chemical ind. v. efcc & anor (2020) lpelr-51398 (ca) 24tournier v national provincial board union bank of england (1924) 1 kb 461. detailed discussion on the extent and qualifications to this rule was done in pages 124 – 128 ante. 25 foster v bank of london (1862)3 f & f 214. 26 (2020) 17 nwlr (pt. 1754) 467. 27 selangor united rubber estates v cradock (1968)2 all er 1073. 28 (2000) fwlr (pt. 11) 1766. 29 (2000) fwlr (pt. 11) 1766 30 united bank for africa plc (uba) v. vertex agro ltd (supra). 31 (2018) lpelr-50839 (ca) 32 (2022) lpelr-57512 (ca) african customary and religious law review (acarelar) 5 (2024) 87 | p a g e court case of huston (nig) ltd v. a.c.b plc33, held that it is the duty of the bank to send statement of account to the customer at regular intervals or on demand. 3. liabilities of bankers to third parties in some cases where a person who is not a party to the contract subsisting between a banker and his customer suffers an infringement of his own personal rights by the banker, he may have a remedy at common law for any damage occasioned by such infringement of his personal rights. the rationale behind this can be explained by the maxim ubi jus, ibi remedium (literally meaning that ‘where there is a right, there is a remedy’).34 first, where a banker negligently gives a status report or confidential opinion or banker’s reference on his customer to a third party with knowledge that such third party may rely on the said status report, confidential opinion or banker’s reference and that damages may ultimately occur to such third party placing reliance on the advice, the banker will be liable to such third party for any loss he might have suffered as a result of such negligent misstatement. this rule of law was laid down in the famous case of hedley byrne & co. ltd v heller & partners35 where the court held that where a banker replies to a credit inquiry, it may be liable for negligence unless he includes an express disclaimer in the recommendation. second, a bank could be open to liability to a third party where he acts negligently as a collecting banker. for example, in the case of agbonmagbe bank ltd v cfao,36 a customer of the respondent gave them a number of cheques drawn on the appellant bank in settlement of her account with them. the cheques were sent to the appellant bank by the respondent bank for clearance. they were not cleared and a notice of dishonor was not given within reasonable time. the respondent bank thinking that the cheque had been cleared continued to grant credit to the customer who issued those cheques. two months later, the cheques were all returned as dishonored. the respondent obtained judgment against their customer for the full amount owed to them but were only able to recover a small portion of it. they then sued the appellants to recover the balance contending that they had suffered loss by reason of the appellant’s negligence in not sending prompt notice of dishonor of the cheques. the appellant contended that they owed no duty of care to the respondent. the supreme court rejected the appellant’s claim and held that a person must take reasonable care to avoid acts or omissions reasonably foreseeable as being capable of causing injury to persons so closely and directly affected by such acts or omissions that he ought to have them in contemplation. it was further held that bankers may in certain cases be liable to persons who are not their customers for negligence which causes them pecuniary damage. the appellants were thus held liable to the respondents. third, a banker any also be held liable for the financial loss suffered by a prospective customer if such a loss is derived out of the banker’s negligence. in woods v martins bank ltd37 the bank was held liable for the financial loss suffered by a party who had relied on the negligent advice given to him by the bank manager regardless of the fact that he was not yet a customer of that bank at the time the advice was given. indeed, a banker who negligently collects a stolen or forged cheque on behalf of a person without title to same may be liable to the owner of the stolen or forged cheque even when he is not a customer of the bank.38 also, where a third party obtains a garnishee order from court directing a banker to repay the third party from its customer’s account, the banker is under obligation to pay to the third party the exact sum as ordered by the court39. 4. liability of customers to third parties as a matter of law, a third party to a contract cannot sue on the terms of that contract in view of the common law doctrine of privity of contract.40 in banking business, the relationship as earlier stated is a contractual one between the banker and the customer. as such, privity of contract tends to apply on the part of the third party to the original contract between the banker and the customer. however, with respect to cheques, the law recognizes that ownership of the rights contained in the instrument can be transferred to and enforced by a third party, referred to as the ‘holder’. a ‘holder’ means the payee or endorsee of a bill or note that is in possession of it, or the bearer thereof.41 the point must however be made that the mere fact of being a holder of a bill (cheque) may not entitle a person to sue thereon unless he is a holder for valuable consideration.42 since a holder for value only acquires the same title as his transferor, this greatly 33 (2002) 12 nwlr (pt. 782) 623 sc. 34 fbn plc v associated motors co. ltd (1998)10 nwlr (pt. 570) 441. 35 (1964) ac 465. 36 (1966)1 all nlr 40. 37 (1959)1 qbd 55 38 ladbroke v todd (1914)30 tlr 433; nigerian breweries ltd. v muslim bank of west africa ltd (1933-1966)1 nblr 282. 39 fidelity bank v. onwuka (2017) lpelr-42839 (ca. 40 dunlop pneumatic tyre co. v selfridge & co. (1915) ac 847. 41 section 2(1) of bills of exchange act. 42valuable consideration for a bill may be constituted by: (a) any consideration sufficient to support a simple contract; or (b) an antecedent debt or liability and such a debt or liability is deemed valuable consideration whether the bill is payable on demand or at a future time. see bills of exchange act, section 27(1). note that a party who has not given value for a bill in his possession may nevertheless be regarded as a holder for value where value had been given for the bill by a prior party with kalu, anushiem & ugwuanyi: liabilities of bankers to their customers and third parties in bankercustomer relationship in nigeria: an overview 88 | p a g e limits his ability to proceed against the customer who drew the cheque for any loss he suffers in the event that his transferor’s title to the cheque is defective.43 this limitation however, is removed if the person is a ‘holder in due course’.44 section 38(b) of the bills of exchange act provides that a holder in due course holds the bill (cheque) free from any defect in title of prior parties, as well as from mere personal defenses available to prior parties thereto among themselves, and may enforce payment against all parties liable on thereon. this constitutes an important exception to the privity of contract rule. 5. remedies for the liabilities in banker-customer relationship due to the fact that banker-customer relationship is fundamentally a contractual one, there are a number of remedies available to the banker or customer respectively, some of which arise as of right and others awarded by a competent court in actions for breach of contract for default in execution of either the banker or the customer’s duties. some of these remedies will be considered. in the banker-customer relationship, the bank owes certain fiduciary and contractual duties to its customers, and a breach of these duties can give rise to legal remedies. these are some remedies available to customers for breaches by a bank: damages: compensatory damages: customers may claim compensatory damages to cover the actual losses they suffered due to the bank’s breach. for instance, if the bank’s negligence led to unauthorized transactions, the customer could recover the lost funds.45 in access bank v. petro-al (nig) ltd, it was held thus: ‘the purpose of compensatory damages is to compensate the victim of a tort for the injury he has suffered, and it seeks to put him as far as possible in a position he would have been in, had the tort not been committed.’ consequential damages: if the breach caused indirect losses (e.g., lost business opportunities due to wrongful dishonor of a cheque), the customer could seek damages for these foreseeable losses.46 punitive damages: in cases where the bank’s conduct was particularly egregious, some jurisdictions may allow punitive damages as a deterrent against future misconduct.47 injunction an injunction is a legal order issued by a court that requires a person or entity to either do a specific act or refrain from doing a specific act. it is a type of equitable remedy, often used to prevent harm or to maintain the status quo until the underlying legal dispute can be resolved. a customer may seek an injunction to prevent a bank from continuing or repeating the breach. for example, if the bank discloses confidential information, the customer may obtain an injunction to prevent further disclosures. injunctions are typically granted when monetary compensation is not sufficient to address the harm or when immediate action is necessary to prevent irreparable damage48. injunctions can take several forms: prohibitory injunction: prevents a party from performing a specific action. for example, a court may issue an injunction to stop a company from using a trademark that infringes on another company's rights. mandatory injunction: requires a party to take a specific action49. for example, a court might order a company to restore a customer’s funds that were wrongly taken. interlocutory (or temporary) injunction: issued as a temporary measure while a case is being decided, to prevent irreparable harm during the legal process.50 regards to the acceptor and all who became parties to the bill prior to such time. see ibid, section 27(2); diamond v graham (1968)1 wlr 1061. there is a rebuttable presumption that every party whose signature appears on a bill was a party thereto for value. see bills of exchange act, section 30(1). 43note that the title of a person who negotiates a bill is defective when he obtained the bill, or the acceptance thereof, by fraud, duress, or force and fear, or other unlawful means, or for an illegal consideration, or when he negotiates it in breach of faith, or under such circumstances as amount to a fraud. see section 29(2), ibid. 44a holder in due course is a holder who has taken a bill, complete and regular on the face of it, under the following conditions: (a) that he became the holder of it before it was overdue, and without notice that it had been previously dishonoured, if such was the fact; or (b) that he took the bill in good faith and for value, and that at the time the bill was negotiated to him he had no notice of any defect in the title of the person who negotiated it. see ibid, section 29(1); arab bank ltd v ross (1952)2 qb 216; raphael v bank of england (1855)17 cb 161. a holder (whether for value or not), who derives his title to a bill through a holder in due course, and who is not himself a party to any fraud or illegality affecting it, has all the rights of that holder in due course as regards the acceptor, and all parties to the bill prior to that holder. see bills of exchange act, section 29(3). every holder of a bill is prima facie deemed to be a holder in due course; but if in an action on a bill it is admitted or proved that the acceptance, issue or subsequent negotiation of the bill is affected with fraud, duress or force and fear, or illegality, the burden of proof is shifted unless and until the holder proves that, subsequent to the alleged fraud or illegality, value has in good faith been given for the bill. see section 30(2), ibid. 45 access bank v. petro-al (nig) ltd (2017) lpelr-45198 (ca) 46 amana solid poles (nig) ltd & anor v. okafor & anor (2021) lpelr-55676 (ca) 47 bernard & anor v. fcmb ltd (2022) lpelr-58194 (ca) 48 larabee enterprises ltd & anor v. nexim bank & anor (2022) lpelr-570007 (ca) 49 elias & anor v. eco bank (nig) plc (2015) lpelr-41003 (ca) 50 cbn v. system application products (nig) ltd (2004) lpelr-5432 (ca) african customary and religious law review (acarelar) 5 (2024) 89 | p a g e specific performance specific performance is a legal remedy in contract law where a court orders a party to fulfill their obligations as specified in a contract rather than simply awarding monetary damages for a breach. this remedy is typically granted when monetary compensation would be inadequate to remedy the harm caused by the breach, often in cases involving unique goods, property, or services that cannot easily be replaced or valued in money51.specific performance is an equitable remedy that compels the bank to fulfill its contractual obligations. however, courts are selective in granting this remedy, and it’s usually only available when (1) the contract terms are clear, (2) the subject matter is unique, and (3) the court can oversee or enforce the terms without excessive difficulty. this remedy is rare in banker-customer disputes but may apply if monetary compensation is inadequate. restitution this remedy aims to restore the customer to the position they were in before the breach occurred52. for instance, if the bank wrongfully withdraws funds from a customer’s account, restitution would require the bank to return the exact amount withdrawn. rescission black’s law dictionary ninth edition, defines the verb rescind as meaning: ‘to abrogate or cancel (a contract) unilaterally or by agreement…to make void; to repeal or-annul.’ a party’s unilateral unmaking of a contract for a legally sufficient reason, such as the other party’s material breach …’ of fraudulent misrepresentation or undue influence by the bank, the customer may rescind (cancel) the agreement, effectively releasing them from obligations under the contract.53 in a banker-customer relationship, rescission of contract is a legal remedy that cancels or nullifies the agreement between the bank and the customer, returning both parties to the position they were in before the contract was made. rescission can be sought when there has been a fundamental breach of the agreement or when the contract was formed based on factors like fraud, misrepresentation, undue influence, mistake, or illegality. for instance, if a bank entered into a loan agreement with a customer based on the customer's fraudulent information, the bank may seek rescission to cancel the contract, recover the funds loaned, and avoid further obligations. similarly, if a customer was pressured or misled into agreeing to unfavorable terms, they might seek rescission to void the agreement. in rescission, the goal is to ‘unwind’ the contract, effectively undoing it, so neither party benefits from the terms agreed upon. however, rescission may be challenging if the contract has already been significantly acted upon or if it would be inequitable to one of the parties. complaint to regulatory authorities customers may report breaches to banking regulatory bodies, such as the central bank or financial conduct authority (fca) in some jurisdictions. these authorities can investigate, impose fines, or mandate corrective actions by the bank. 6. conclusion and recommendations in the banker-customer relationship in nigeria, the liabilities of bankers extend beyond mere custodianship of funds. banks are entrusted with the duty of care, confidentiality, and competence in managing customer accounts and transactions. these duties form the foundation of trust and confidence between banks and their customers. additionally, banks bear obligations to third parties, often arising from legal mandates to prevent financial crimes, ensure transparency, and respect contractual relationships involving third-party rights. however, instances of breach, negligence, fraud, and mishandling of customer information expose banks to legal liabilities, resulting in potential loss of reputation, customer confidence, and financial penalties. as the banking industry in nigeria becomes increasingly digital, the responsibilities of banks to safeguard customers’ funds and information become more complex, highlighting the need for robust regulatory frameworks to enforce accountability and mitigate risk. the following measures will be helpful: the central bank of nigeria and other regulatory bodies should strengthen oversight mechanisms to ensure banks comply with their fiduciary duties to customers and third parties. regular audits, compliance checks, and penalties for breaches could enhance accountability. banks should invest significantly in advanced cybersecurity infrastructure to protect customer data from breaches. implementing strong data protection measures will ensure compliance with laws like the nigeria data protection regulation (ndpr) and reduce liabilities arising from data breaches. banks should actively educate customers on their rights, responsibilities, and the terms of their banking contracts. improved customer awareness would empower clients to identify and report bank errors or potential breaches promptly. banks should ensure that their staff follow transparent, ethical practices, especially when dealing with loans, investments, and other complex financial transactions involving third parties. training programs on ethics and compliance should be mandatory. internal risk management systems should be enhanced to prevent incidents of fraud and mismanagement. by implementing stricter internal controls, banks can minimize their liabilities to customers and third parties, fostering a safer banking environment in nigeria. these recommendations aim to foster a banking sector in nigeria that prioritizes responsibility, transparency, and protection of customer rights, ultimately enhancing the credibility of financial institutions and supporting economic growth. 51 rabiu v. zara (2018) lpelr-465556(ca) 52 union bank v. eskol paints nig. ltd & anor (1997) lpelr -6342 (ca) 53 project vision actualizers ltd v. ilushin estates ltd & anor (2021) lpelr-55629 (ca) akande & akiri: safeguarding minority rights within the scope of corporate management under the nigerian company law 148 | p a g e safeguarding minority rights within the scope of corporate management under the nigerian company law* abstract this seminar paper delves into the reality of safeguarding of minority rights under nigerian company law. minority shareholders, despite their limited influence, play a crucial role in the corporate structure, necessitating robust legal protections to ensure their interests are not overshadowed by majority stakeholders. the paper explores the legislative frameworks and judicial precedents that govern minority rights in nigeria, highlighting key provisions in the companies and allied matters act (cama) and the role of the corporate affairs commission (cac) in enforcing these protections. it examines the efficacy of existing legal safeguards, such as the derivative action, injunctions, and unfair prejudice remedies, in maintaining a balanced and equitable corporate environment. additionally, the paper discusses the challenges faced by minority shareholders in asserting their rights and proposes recommendations for enhancing the legal mechanisms to better serve their interests. by scrutinizing the interplay between corporate governance and minority protection, this paper aims to contribute to the discourse on fostering a more inclusive and just corporate management system in nigeria. keywords: minority rights protection, corporate management, shareholder rights, corporate governance, safeguarding, nigeria 1. introduction the companies and allied matters act (cama) 20201 is a federal legislation that governs the formation, incorporation, administration and regulation of companies in nigeria. it stands as a pivotal legal framework in nigeria, regulating the establishment, governance, and operations of companies. within the intricate web of provisions that companies and allied matters act encompasses, the rights and safeguards afforded to minority shareholders hold significant importance. minority shareholders, often with limited ownership interests, can find themselves in vulnerable positions within corporate entities, necessitating the existence and effective enforcement of protective measures. the protection of the minority shareholders within the domain of corporate activity constitutes one of the most difficult problems facing modern company law. the reason for this is not far-fetched, due to the fundamental attribute of corporate personality conferred on a company which distinct it from members. a company is an ‘artificial person’ hence, its affairs is managed by natural persons. such natural persons are the members or directors of the company who are tasked with the daily management and operation of the company and are required to act in the best interests of the company. accordingly, decision making in a company though meant to be reached in a democratic manner is often lopsided due to the fact that majority get to have their suggestions adopted. it is not unusual to find majority shareholders running a company in an illegal or oppressive mode irrespective of provisions of the laws regulating the operation of companies in nigeria or managing the company in an oppressive manner detrimental to the rights of the minority shareholders. in most cases, the saying that ‘majority will always have their way while the minority will have their say’ holds true in most cases when decisions are made by the company. in nigeria's evolving business landscape, where corporate entities continue to thrive and diversify, understanding the intricacies of minority protection rights essential. once a business is properly formed, it gains legal identity and separates from its members and other executives as a separate legal person.2according to section 37 of companies and allied matters act3; as from the date of incorporation mentioned, in the certificate of incorporation, the subscriber of the memorandum together with such other persons as may, from time to time, become members of the company, shall be a body corporate by the name contained in the memorandum, capable forthwith of exercising all the powers and functions of an incorporated company. 2. company as a legal personality the concept of the legal personality of a company as a separate entity from its members became finally established under the common law in the classical case of salomon vs. salomon & co.2, where lord macnaghten stated the position of the law as follows: when the memorandum is duly signed and registered, though there be only seven shares taken, the subscribers are body corporate „capable forthwith‟, to use the words of the enactment, „of *by r.a. akande, ebonyi state university, faculty of law, commercial and industrial law department. email: raakande@gmail.com, tel: +2348037742978; and *amaebi goodness akiri, postgraduate student, department of commercial and industrial law, faculty of law, ebonyi state university, email: amahmkg@gmail.com, tel: +2348144444265. 1companies and allied matters act, 2020 (cap. c20) l. f. n. 2020 2afribank (nig.) ltd vs. m. ent. ltd (2008) 12 nwlr (pt. 1098). 3 companies and allied matters act 2020 mailto:raakande@gmail.com mailto:amahmkg@gmail.com african customary and religious law review (acarelar) 5 (2024) 149 | p a g e exercising all the functions of an incorporated company…. the company is at law a different person altogether from the subscribers to the memorandum, and, though it may be that after incorporation the business is precisely the same as it was before, and the same persons are managers, and the same hands receive the profits, the company is not in law the agent of the subscribers as members liable, in any shape or form, except to the extent and in the manner provided by the act.4 section 38 (1) states further thus: ‘except to the extent that the company’s memorandum or any enactment otherwise provides, every company shall, for the furtherance of its authorized business or objects, have all the powers of a natural person of full capacity.’ a company that has been incorporated is defined by law as ‘united or combined into an organized body,’5 and is therefore considered a separate legal entity or ‘legal person’ from the individual members of the firm. it is regarded by the law as ‘any other independent person’ with rights and obligations. a company is a legal person with the ability to possess property, enter into contracts, and even conduct crimes.6 even if a company is regarded as a person for legal purposes, it is still an artificial person; it is merely a legal device that depends on actual people to perform its functions. in bolton (engineering) co. ltd vs. graham & sons7, lord denning, the law lord put it succinctly thus: a company may in many ways be likened to a human body. it has a brain and nerve centre which controls what it does. it also has hands which hold the tools and act in accordance with directions from the centre. some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. others are directors and managers who represent the directing mind and will of the company, and control what it does. the state of mind of those managers is the state of mind of the company and is treated by law as such…8 the brain and nerve centre of a company are those that are in charge of its management, and control its day-today activities. they are the set of people under the law, authorized to exercise, on behalf of the company, the powers vested on it upon incorporation. this means, when acting within the scope of their authority, their acts are taken as the acts of the company.9 section 63(1) of companies and allied matters act provides: ‘a company shall act through its members in general meeting or its board of directors or through officers or agents, appointed by or under authority derived from, the members in general meeting or the board of directors.’ as can be seen from the above section, the primary organs of a company are: 1) the general meeting and 2) the board of directors. however, what can amount to a third organ is derivative. it is really a delegation of any of the two principal organs, as can be gleaned from the section. providing a sufficient system of checks and balances between the many organs of a corporation is one of the key issues facing modern company law and practice. to put it another way, how can the law make sure that the company's organs manage its affairs in a way that will benefit all of its members and that the directors, who are in charge of the company's business, do not abuse their privileged positions to give themselves an unfair advantage at the expense of the company? to put it succinctly, when can a minority member of the corporation enforce both his individual rights and the rights owed by the company? 3. the rule in foss v harbottle foss v harbottle is the leading english precedent in corporate law. it established the legal principle that, in the event of a breach of duty owed to a company or an infringement of the company's rights, the proper plaintiff or claimant to seek redress is prima facie the company itself. this principle, known as ‘the rule in foss v harbottle,’ is based on the idea that individual shareholders should not bring legal action against their company because the courts will not participate in the company's internal management. it is common knowledge that only the firm has the authority to approve irregular behavior and file a lawsuit to correct wrongs done to it or to rectify irregularities committed during business operations.10 the rule gave rise to the principles of majority and minority shareholders’ rights. in matters of company management, decisions are made through resolutions passed by a simple majority or a three-fourth majority of the company’s members. the court generally does not interfere in the company’s internal management and affairs, as most members decide them. consequently, the company becomes the appropriate plaintiff to institute a lawsuit or legal proceedings, and it does not typically allow a single shareholder to take direct legal action against the wrongdoer. the rule empowers the company to address irregularities through its internal procedures.11 as a result, the court in foss v harbottle established two principal rules. 4 (1897) ac 22 5 section 38(2) of the corporate and allied matters act 2020 6 section 38 (2). 7 (1957) 1 qb p. 159; see also lennard’s carrying co v asiatic petroleum co ltd (1915) ac 705. 81957) 1 qb p. 159; see also lennard’s carrying co v. asiatic petroleum co ltd (1915) ac 705. 9adeniji v. the state. (1992) 4nwlr 10see section 341 companies and allied matters act 2020; see also the case of foss v harbottle. (1843) 2 hare 461, 67 er 189 11foss vharbottle case. lawbhoomi. <https://lawbhoomi.com/foss-vs-harbottle-> (4 august, 2023). https://lawbhoomi.com/foss-vs-harbottleakande & akiri: safeguarding minority rights within the scope of corporate management under the nigerian company law 150 | p a g e a) the first is the ‘proper plaintiff rule,’ which states that only the company can sue directors or outsiders for any wrong or loss due to fraudulent or negligent acts. members of outsiders cannot sue on behalf of the company because of the principle of ‘separate legal entity,’ which treats the company as a distinct legal person from its members. b) the second rule is the ‘majority principle rule,’ where the court will not interfere if the alleged wrong can be ratified by a majority of members in a general meeting. the proper plaintiff in an action in respect of a wrong done to the company or association of persons is prima facie the company or association itself. and, the court will not interfere in the internal affairs of a company at the instance of the minority if the irregularities complained of could be legally done or ratified by the majority. the nigerian supreme court has held in agip (nig.) ltd. v agip petroli international: the rule in foss v harbottle … prevents claims by shareholders for reflective losses, and provides that if a wrong is done to a company then the company is usually the proper claimant in respect of that wrong. the rule in foss v harbottle is now part of nigerian company law and it is embodied in the companies and allied matters act, 2020.12 the said section 299 of the cama enacts the rule as follows: subject to the provisions of this act, where irregularity has been committed in the course of a company’s affairs or any wrong has been done to the company, only the company can sue to remedy that wrong and only the company can ratify the irregular conduct.13 the doctrine of corporate personality of registered companies14 and the principle of the supremacy of the majority15, which have their roots in the partnership law principle that courts would not interfere as between partners in respect of internal irregularities that the partners could rectify16, are the foundation of corporate governance and the enforcement of a company's rights. first off, the firm itself is initially the rightful plaintiff in a lawsuit alleging wrongdoing against it. secondly, no individual member of the company may pursue legal action regarding the alleged wrong if the transaction in question is one that a simple majority of the company's members could ratify as binding on the company and all of its members ‘for the simple reason that, if a mere majority of the company's members... is in favor of what has been done, then caditquestio (in other words, the majority rule)’. keep in mind that the phrase ‘caditquestio’ signifies ‘the matter admits of no further argument.’ another point that can be gleaned from the case at hand is the reluctance of the court to intervene in the internal management of a company. the rationale for this is that the management of companies is best left to the judgment of their directors who are supposedly more commercially aware than judges and besides, those directors would have been elected by the majority of members.17 exception to the rule to mitigate the harshness of the rule, four exceptions to the rule of proper plaintiff have been laid down where the litigation will be allowed. in nigerian company law, there are exceptions to the rule that only a company can sue for wrongs done to it. these exceptions allow minority shareholders to bring derivative or personal actions in certain circumstances: 1. fraud on the minority: if wrongdoers control the company, minority shareholders can sue for actions that amount to fraud against the minority18. 2. ultra vires acts: if a transaction is beyond the company’s powers or illegal, minority shareholders can sue. vinelott j concluded that it was not necessary for the plaintiff to allege and prove that a defendant, in breaching a duty to the company, acted ‘with a view’ to benefiting him or herself at the company’s expense. in fact, he expressed doubt as to whether the requirement for some benefit on the defendant’s part was a valid one at all.19 12(2010) 5 nwlr (pt. 1187) p. 348 at p. 392; onuekwusi v registered trustees of the christ methodist zion church (2011) 6 nwlr (pt. 1243) p. 341 at 361-362; okonkwo v national universities commission (2013) 15 nwlr (pt. 1378) p.482 at 500. 13 rule applied in cbn v kotoye (1994) 3 nwlr (pt.330) p.66; first african trust bank ltd v ezegbu (1994) 4 nwlr (pt. 367) p.149. 14trenco (nig) ltd. v african real estate & investment co. ltd. (1978) 11 n.s.c.c. 220; marina nominees ltd. v federal board of inland revenue (1986) 2 nwlr (pt. 20) 48; wallersteiner v moir (no. 2) (1975) 1 all er 991; berliet nig. ltd. v francis (1987) 2 nwlr (pt. 58) 673; salomon v salomon & co. (1897) a.c. 22 15edokpolor& co. ltd. v semi-edo wire industries ltd &anor. (1984) 7 s.c. 119. 16carlen v drury (1812) 35 e.r. 61. featherstone v cooke (1873) l.r. 16 eq. 298, trade auxiliary co. v vickers probate (1812) 21 vr. 835. 17edwards vs. haliwell(1950) 2 all e.r. 1064;edokpolor& co. ltd. vs. sem-edo wire industries ltd. &anor. op. cit. p.119. 18 burland v earle [1902] ac 83, 93 19 prudential assurance co ltd v newman industries ltd [1981] ch 257, overruled in part by the court of appeal [1982] ch 2044 african customary and religious law review (acarelar) 5 (2024) 151 | p a g e 3. special majority requirement: if a matter requires a special majority or specific procedure and it’s not followed, a minority shareholder can take action. edwards v halliwell20 4. infringement of personal rights: if a shareholder's personal rights are violated, they can sue individually. ‘a member under this heading includes the personal representative of a deceased member; and any person to whom shares have been transferred or transmitted by operation of law.21 these exceptions ensure that minority shareholders can seek redress when the majority abuses its power or when the company’s management acts improperly. 4. remedies available to minority shareholders personal and representative action the companies and allied matters act empowers aggrieved minorities to maintain personal action or representative action. the remedies available to personal and representative actions are either damages for loss or breach of right, injunction or declaration. the provision however allows a member to institute a personal action to enforce a right due to him personally, in such circumstance, he shall be entitled to damages for loss incurred on account of the breach of that right and a declaration or injunction to restrain the company and/or the directors from doing a particular act what this means is that where the rights of the minority have been breached, every one of the minorities has a cause of action against the company or the directors. they may decide to exercise that right of redress jointly or severally. but whether it is exercised jointly or severally, the reliefs awardable are the samedeclaration or injunction. section 344 (1)22 provides that: ‘where a member institutes a personal action to enforce a right due to him personally, he shall not be entitled to any damages but to declaration or injunction to restrain the company and/or the directors from doing a particular act.’ subsection (2)23 states that: ‘where a member institutes a representative action on behalf of himself and other affected members to enforce any rights due to them, he shall not be entitled to any damages but to a declaration or injunction to restrain the company and/or directors from doing a particular act.’ in pender v lushingnton24 the court held that, where there is a breach of any of the individual rights, the aggrieved member can bring an action in his personal capacity since the injury is done to him in his personal capacity and this he can do without the consent or approval of any other member to sue. it is consequently up to the minority to decide how best to air out his complaints. to portray a representative action, it is always preferable when the other minority members also consent. derivative action this is an action where the minority is allowed in law to sue on behalf of the company. this is exception to the general rule of company law where the normal organs that can maintain such actions on behalf of the company are either the board of directors or the general meeting through the majority. in a derivative action, an applicant can apply to the court for leave to bring an action in the name or on behalf of a company, or to intervene in an action to which the company is a party, for the purpose of prosecuting, defending or discontinuing the action on behalf of the company. the remedies available in the event that the court is satisfied with the application includes the following25 1. court orders directing that the applicant or a third party control the conduct of the action; 2. giving directions for the conduct of the action; 3. directing any amount adjudged to be paid by the individual or company; or 4. requiring the company to pay reasonable legal fees incurred by the applicant in connection with the proceedings. being a departure from the general rule, the power is not resorted to as a matter of course. certain circumstances must be in place to entitle a minority to be clothed with locus standi to present the action – under the derivative action. the authority to continue acting under this title is derivative, as the name suggests. it indicates that another person or organ holds the majority of the power. in this sense, the corporation typically has the authority, which it may lawfully execute through its main organs, the board of directors or the general meeting.26 in east pant du united lead mining co. v. merrywheather27, the owners of a derelict mine formed a company, of which they became directors and shareholders, and sold the mine to it for a substantial sum. the outside shareholders sought to relieve the company of the purchase and to recover the money paid to the sellers. an action was commenced 20[1950] 2 all er 1064 21 section 345 of the companies and allied matters act. 22 section 344 (1) of the companies and allied matters act, 2020 23 section 344 (2) of the companies and allied matters act, 2020 24 1877 6 ch d 701 25 section 347(2) cama 2020. 26 chapter 4 of the companies and allied matters act 27 (1864) 2 h. & m.254 akande & akiri: safeguarding minority rights within the scope of corporate management under the nigerian company law 152 | p a g e in the name of the company but was dismissed when the miscreants secured, through the exercise of their votes, the passing of a resolution directing that the company should discontinue the proceedings. a shareholder then started another action in the name of himself and all other shareholders, except the fraudulent directors. it was held that, notwithstanding foss vs. harbottle, the court would allow an action framed in this way, since otherwise it would be impossible to set aside the fraud. in such situation, a minority can bring the derivate action on behalf of the company. the application must be brought in good faith and it must appear that the granting of the application will be for the interest of the company. it thus seems that in granting or refusing the application, the court will consider the interest of the company rather than the personal interest of the applicant. this is so because a minority shareholder usually stands to gain nothing, apart from a sense of satisfaction in seeing justice done and perhaps some appreciation in the value of his shares reflecting the amount recovered from the wrongdoers. one of the strongest factors influencing the court's decision to approve or deny an application to file a derivative action28 has been the degree of influence the guilty director or directors hold within the firm. petition for relief on ground of oppressive or unfairly prejudicial conduct the act does not define what ‘oppressive or unfairly prejudicial conduct’ however the courts in several cases have through the years construed a meaning. in re jermyn street turkish baths ltd29 the english court of appeal held that; oppression occurs when shareholders, having a dominant power in a company, either exercise that power to procure that something is done or not done in the conduct of the company’s affairs or procure by an express or implicit threat of an exercise of that power that something is not done in the conduct of the company’s affairs; and when such conduct is unfair or, to use the expression adopted by viscount simonds in scottish co-operative wholesale society ltd v. meyer30 ‘burdensome, harsh and wrongful‟ to the other members of the company or some of them, and lacks that degree of probity which they are entitled to expect in the conduct of the company’s affairs… similarly, nigerian courts have had causes to interpret the expression ‘oppression or unfairly prejudicial conduct’. in ogunde v mobil films (w/a) ltd31the court held that, the oppression or fraudulent conduct of the majority must be harsh, burdensome and wrongful and must represent a consistent pattern of conduct intentionally directed at the oppressed minority over a period of time. section 355 empowers the court on an application made under the heading to make the orders enumerated therein under subsection (2) of the section. the orders include: a) the winding up of the company; b) regulating how the affairs of the company should be conducted in the future; c) order for the purchase of the shares of any member by the members of the company; d) directing that an investigation be made into the affairs of the company by the corporate affairs commission; etc. the corporate affairs commission, as the supervisory agency over companies registered under the act, creditors, directors, and anyone else who, in the court's opinion, is a proper person to make the application when they allege that oppressive or prejudicial and unfair conduct has been done or is threatened to be done against the applicant are all eligible to file this type of application. before approaching the court, the applicant is not required to wait for the oppressive act or omission to be finished. in any case, the applicant won't be left without a remedy just because the conduct has been finished. in making the application, it is not enough to merely allege that a conduct is unfairly prejudicial, oppressive or illegal. the applicant must show the circumstances of the oppression and illegality. thus, the applicant must plead all the relevant facts that will prove the allegation.32 5. challenges in seeking remedies in a system where, corporate governance can sometimes be elusive, seeking remedies for perceived injustices as a minority shareholder becomes a formidable challenge. some of the challenges that the shareholders would or might face includes: high burden of proof generally, burden of proof describes the standard that a party seeking to prove a fact in court must satisfy to have that fact legally established. there are different standards for different circumstances.33 for example, 28daniels vs. daniels (1978) ch. 406.; see also pavlides v jensen (supra) p.565. 29 (1971) 3 all er184 at 199. 30(1958)3 all er 66 at 71. 31 (1976) 2 frcr 10 32 solanke vs. ogunmenfun (unreported) suit no: fhc/l/m/137/81 of 11/8/83 33<https://www.law.cornell.edu/wex/burden_of_proof#:~:text=in%20civil%20cases%2c%20the%20plaintiff,is%20more%2 0likely%20than%20not.> accessed on 27th october, 2023. https://www.law.cornell.edu/wex/prove https://www.law.cornell.edu/wex/fact https://www.law.cornell.edu/wex/court https://www.law.cornell.edu/wex/fact https://www.law.cornell.edu/wex/burden_of_proof#:~:text=in%20civil%20cases%2c%20the%20plaintiff,is%20more%20likely%20than%20not https://www.law.cornell.edu/wex/burden_of_proof#:~:text=in%20civil%20cases%2c%20the%20plaintiff,is%20more%20likely%20than%20not african customary and religious law review (acarelar) 5 (2024) 153 | p a g e in criminal cases, the burden of proving the defendant’s guilt is on the prosecution, and they must establish that fact beyond a reasonable doubt. in civil cases, the plaintiff has the burden of proving their case by a preponderance of the evidence, which means the plaintiff merely needs to show that the fact in dispute is more likely than not. a ‘preponderance of the evidence’ and ‘beyond a reasonable doubt ‘are different standards, requiring different amounts of proof. the plaintiff is not entitled to the reliefs sought in court by the fact that he has filed his suit in court. the law requires the plaintiff to establish that he is genuinely entitled to the reliefs sought in the suit. to achieve this result, the plaintiff must proof his case before the court and must succeed on the strength of his own evidence. see the case of akande v adisa34 section 131of the evidence act concretized this principle and states: whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.’ (2) when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. section 132 of the evidence act states that the burden of proof lies on who would fail if no evidence at all were given on either side. once the burden is discharged, the burden of disproving those facts falls on the party who would lose if no further evidence is adduced.35 in nigeria, the burden of proof for minority shareholders seeking remedies is often set at a high standard, requiring evidence that is persuasive and beyond a reasonable doubt. to challenge any wrongdoing, the aggrieved party must present evidence that establishes the violation and does so beyond a reasonable doubt. these stringent standards place an onerous task on the shoulders of minority shareholders, demanding an almost herculean effort to gather irrefutable evidence against those in positions of power. costs and delays in litigation costs and litigation delays can pose significant challenges for minority shareholders seeking remedies in the context of corporate governance disputes. minority shareholders, who own a relatively small percentage of a company's shares, may face several obstacles when addressing grievances through the legal system. here are some key factors contributing to the problem: 1. high costs (legal expenses): litigation can be expensive, involving legal fees, court costs, expert witness fees, and other related expenses. minority shareholders may find it financially burdensome to pursue legal action against more significant, more resourceful entities such as majority shareholders or the company itself. 2. time delays (lengthy legal processes): litigation can be time-consuming, with cases often taking years to resolve. the extended duration can deter minority shareholders, especially those with limited resources, from pursuing legal remedies. 3. deterrence effect (fear of retaliation): minority shareholders may fear retaliation or negative consequences from the majority shareholders or company management. this fear can discourage them from pursuing legal remedies even if they believe their rights have been violated. ineffectiveness of statutory remedies the ineffectiveness of statutory remedies poses a challenge for shareholders seeking redress in corporate governance disputes. statutory protections may have limited scope, addressing only certain issues and leaving gaps in coverage. the legal processes for pursuing these remedies can be complex and time-consuming, with high evidentiary standards and obstacles. even when protections exist, enforcement is often hindered by limited resources for regulatory bodies. additionally, statutory remedies may fail to impose personal liability on wrongdoers, and legal gaps or ambiguities can complicate shareholder efforts. improving shareholder rights protection may require legislative reforms, better regulatory enforcement, and more meaningful shareholder participation. 6. conclusion and recommendations we have examined the legal protections that are available to the minority shareholders in the company laws of nigeria. why does the company’s minority shareholder require particular protection is the question? it has been observed that minorities are always a vulnerable segment in all societies and organizations. this is especially evident in any democratically based political or economic system. democracy is, put simply, the rule of the majority or on behalf of the majority in its ideal form. therefore, in situations where the minority's rights are in jeopardy and the majority shows little care or empathy for their situation, the minority may make an introspective but voice out. this has rendered providing the minority with extra protection vital. the current tenet is that the minority must be given a voice, even though the majority will always get its way. it implies that under majority 34(2012) 15 nwlr (pt. 1324) p. 538 35 section 132 (2) of the evidence act, 2011. https://www.law.cornell.edu/wex/criminal_law https://www.law.cornell.edu/wex/case https://www.law.cornell.edu/wex/prove https://www.law.cornell.edu/wex/defendant https://www.law.cornell.edu/wex/guilty https://www.law.cornell.edu/wex/prosecution https://www.law.cornell.edu/wex/fact https://www.law.cornell.edu/wex/reasonable_doubt https://www.law.cornell.edu/wex/civil_law https://www.law.cornell.edu/wex/case https://www.law.cornell.edu/wex/plaintiff https://www.law.cornell.edu/wex/case https://www.law.cornell.edu/wex/preponderance_of_the_evidence https://www.law.cornell.edu/wex/preponderance_of_the_evidence https://www.law.cornell.edu/wex/reasonable_doubt https://www.law.cornell.edu/wex/proof akande & akiri: safeguarding minority rights within the scope of corporate management under the nigerian company law 154 | p a g e rule, minorities' rights shouldn't be violated without consequence. democracy is, after all, supposed to be the rule for everybody. there are quite a number of legal protections that are available in safeguarding the rights of minority shareholders in company laws of nigeria. however, safeguarding minority rights within corporate management under nigerian company law requires a holistic approach that addresses the existing gaps in the legal framework and enhances the enforceability of minority protections. while the current provisions under the companies and allied matters act (cama) provide some remedies, they remain insufficient in addressing key challenges faced by minority shareholders, especially in cases of corporate mismanagement, fraud, or oppression. to this end, the recommendations outlined below aim to strengthen the mechanisms available for minority shareholders to seek redress and hold corporate officers accountable. ultimately, the effective implementation of these measures will not only safeguard minority interests but also foster confidence in corporate governance, contributing to a more equitable and sustainable business environment in nigeria. having examined the legal protection that are available to minority shareholders in company laws of nigeria, and in view of the dilemma associated with safeguarding the rights of minority shareholders, we have made the following recommendations: 1. that the legislature should further strengthen the management of a company by enacting a law that any member of the company can bring an action or requisition for inspectors to inspect or investigate the affairs of a company. there should be no restrictions on the ground of shares owned by a shareholder or number of members. 2. there should be a provision in cama empowering inspectors to investigate the financial transactions of relatives and allies of directors and corporate officers and their businesses whether connected with the company being investigated or not. the corporate affairs commission (cac) should as a matter of fact make it mandatory that companies should be investigated at least once every year. this will go a long way to cushioning the effect of fraud and unjust enrichment by corporate officers. the sources of revenue with which owners of companies established such companies must be unraveled and established. there should be regular training of inspectors and investigators in forensic investigations. inspectors should be qualified lawyers and accountants and other professionals in different fields who are have knowledge of corporate governance. 3. it is also suggested that in order to lower the standard of prove required under section 343 (d) cama, the, ‟fraud’ in the phrase, ‟committing fraud’ should be amended to, ‟committing any wrong’ on either the company or the minority shareholders…. this will remove any criminality in an allegation, and reduce the difficult task of proving the issue beyond reasonable doubt; thereby lowering the standard of proof to balance of probability especially where the applicant lacks access to all the necessary facts being that the directors are in control of the company. 4. we have seen that security for cost in section 344 (4) cama will act serious impediment against indigent minority shareholders who may ordinarily would have wanted to bring an action to enforce their rights. accordingly, it is recommended that the requirement for security for cost should be removed as provided in section 349 cama which stipulates that an applicant shall not be required to give security for costs in any application made or action brought or intervened in under section 345 of cama. 5. the denial of award of damages to an applicant for personal action or representative action under section 344 companies and allied matters act is wrong. if there is a breach of duty, then there should be a remedy for any person who may have suffered losses as a result of the breach. usually a claim for damages could only arise if there is a breach of any legal duty to the claimant.10 it is therefore recommended that there is need to include the award of damages as one of the remedies available to an applicant under section 344 companies and allied matters act especially where he can prove any financial loss suffered as a consequence of any breach by the company or director. african customary and religious law review (acarelar) 5 (2024) 155 | p a g e a discourse on iya customary marriage in okrika: focus on okuru-kaka ceremony and a revisit of divorce laws in africa* abstract divorce was rare, if not absent, in many customary marriages in africa, and african society had much more stable families in the pre-colonial era. marriage institution is the bedrock upon which any orderly society is built. a solid marriage institution is necessary for a stable family and society. this paper is a discourse of iya or ya customary marriage in okrika which is basically devoid of divorce despite the infiltration of divorce laws into the fabrics of statutory and civil marriages, as well as most african customary marriages. the paper is a call not to liberalise divorce, but to strengthen the core traditional values of the african society. the state has the role to safeguard the family structure as provided in the african charter for human and peoples’ rights. it was discovered that the courts of law and lawyers are at the forefront in implementing this, and all hands must be on deck to actualise these core values. keywords: iya customary marriage, okrika, oruku-kaka ceremony, divorce laws, africa 1. introduction cultural values have meaning and fulfil certain purposes in the locality and lives of the persons who practice it. however, culture is not static but in a constant flux. people will change their cultural practices when they understand that it is possible to give up harmful practices without giving up meaningful aspects of their culture.1 a solid marriage institution is necessary for a stable family and society. ya or iya customary marriage in okrika is a type of marriage amongst customary marriages in nigeria which has defied the infiltration of divorce law. the words ‘ya’ and ‘iya’ will be used interchangeably in this paper. although christianity and modernisation have had much impact on ya marriage, the indissoluble aspect of the marriage remains unaffected to a great extent. this is worthy of commendation for the retention of meaningful aspect of this okrika culture. tradition or culture is an important aspect of any society. it helps to mold the views and behavioural patterns of society. culture includes the values, customs, beliefs and symbols a people accepts and passes from one generation to another.2 it can be said that the culture of a people is their image3 reflected in unwritten law known as customary law. customary law is described as a body of customs and traditions, which regulates the various kinds of relationships between members of the community in their traditional setting.4 it emerges from the customs or traditional usage and practice of people in a given community acquired over the years.5 although it is correct that the validity of a custom is derived from the consent or assent of the native community, custom appears to have noble goals or perceived moral principles.6 customary law is structured to reflect the way of life of a people and their attitude towards the laws governing their community.7 while it is convenient to view customary law as a blanket description covering very many different systems, there is no uniform customary law which applies to the different tribes and communities in nigeria. indigenous customary law differs from tribe to tribe. for centuries, customary law has regulated virtually all kinds of relationships and, notwithstanding the galling influence of the received english law and local legislation, customary law still serves the needs of the ordinary citizens especially in the areas of personal law including marriage, succession and property rights.8 *by iniye l.i. ikimi, llb, bl, llm, acarb., lecturer, nigerian law school. e-mail : inisspecial@yahoo.com. my gratitude goes to sir granville isetima abibo (senior advocate of nigeria) now of blessed memory, elder wilcox abereton (senior advocate of nigeria) all other natives of okrika that were interviewed in the course of this research, particularly, pastor amabere b. jamabo (head of oko and marcus families of nangibo and jamabo-owu war canoe houses in ogoloma, respectively; amaopusenibo of ogoloma kingdom), pastor (elder) diepriye l. jamabo (elder and vice chairman of owu and okolobo war canoe houses in ogoloma, respectively), mr. peter levi amadi and dr. nemi erema. 1 manisuli ssenyonjo, economic, social and cultural rights in international law (hart publishing 2009) 412. 2 oguntokun oluwanike olufunke, ‘culture and religion as impediments to the elimination of violence against women and the girl-child in nigeria’ (2017) 1 bualj 243, 244. 3 ogugua vc ikpeze, gender dynamics of inheritance rights in nigeria: need for women empowerment (folmech printing and pub co ltd 2009) 63. 4 jo asein, introduction to nigerian legal system (2nd edn, abba press ltd 2005) 114. 5 oluwabusayo t wuraola and hameenat bukola ojibara, ‘revisiting the effects of colonialism on the development of customary laws in nigeria’ (2017) 20 (1) nlj 113. 6 margaret kennedy and maxwell eremie, ‘gender bias: roadblocks to equal distribution of inheritance in okrika clan rivers state, nigeria: implication for family counselling’ (2016) 4(4) (oct – dec) international journal of innovative legal and political studies, 32; <https://www.researchgate.net/publication/315706610_gender_bias_roadblock_to_equal_ distribution_of_inheritance_in_okrika_clan_rivers_state_nigeria_implication_for_family_counselling> accessed 29 march 2024. 7 ibid. 8 jo asein, (n4) 115. mailto:inisspecial@yahoo.com ikimi: a discourse on iya customary marriage in okrika: focus on okuru-kaka ceremony and a revisit of divorce laws in africa 156 | p a g e marriage is a universally recognised institution and a respected union all over the world.9 the institution of marriage is the very foundation of society.10 as observed by justice tsammani jca, as he then was, marriage institution is the bedrock or foundation upon which any orderly and civilised society is built. its collapse will inevitably have a negative effect, not only on the children and the couple involved, but ultimately on the society at large. to this end, it will be in the interest of society that divorce is not granted unless the court is fully satisfied upon unassailable facts that its grant is the only remedy to the marriage. in other words, the jurisdiction of the court to dissolve a marriage is one which should not be readily applied, because such jurisdiction involves the status of the parties.11 in the context above, for there to be an orderly society, there is the need for marriages to be stable. public interest and the law demand that marriage bond must not be set aside unless absolutely necessary and unavoidable.12 this paper will delve into the types of marriage in okrika. the paper shall compare the incidents of ya marriage with that of another customary marriage in nigeria – the pre-colonial yoruba customary marriage. ya customary marriage in okrika does not permit actual divorce. any such order by a customary court will be fruitless or inchoate until certain steps are taken. the steps to be taken are usually cumbersome or even impracticable, thus, making the court order somewhat unenforceable, and the marriage, indissoluble in substance. consequently, the attitude of the court having jurisdiction over okrika customary law, seems to be that of reluctance to make an order of divorce of ya marriage. this makes the proclivity towards divorce, either by judicial or non-judicial mode, very minimal among natives. this paper is a wake-up call to some of the core traditional values of the african society and the need to revisit our divorce laws. the divorce laws of nigeria and some african states such as namibia and zambia, selected at random, will be considered. it is imperative at this juncture to point out, that, in addition to printed texts, formal and informal interviews with natives of okrika extraction as well as empirical study were resorted to in the course of this research.13 usually, the courts, in deciding questions of customary law and custom, rely on and admit in evidence the opinions of traditional rulers, chiefs or other persons having special knowledge of the customary law and custom. the courts also rely on and admit in evidence any book or manuscript recognised as legal authority by people indigenous to the locality in which such law or custom applies.14 this is the decision of the supreme court in the case of usiobaifo v.usiobaifo.15 it is on this premise that the writer, in the course of this research, relied on available texts, interviews with okrika natives having special knowledge of the custom and empirical study. 2. okrika people and their native land the okrika people are part of the izon (ijaw) ethnic group, and they occupy the south-eastern part of rivers state, nigeria.16 the people of ijaw; also known as “ijo” or “izon”, are unarguably the most populous tribe inhabiting the niger delta region and arguably the fourth largest ethnic group in nigeria.17 the name ‘okrika’ is the english or anglicised version of the word, ‘kirike’, which is a short form for ‘wakirike’. the okrika people are etymologically referred to as the wakirike people. the word ‘wakirike’ means “we are not different”, or rather, “we are the same people”.18 okrika native land comprises the okrika island, and okrika mainland which is also known as port harcourt mainland. currently, okrika speaking people are situated in three local government areas of rivers state, nigeria, namely, okrika (walga), ogu/bolo (obolga) and port harcourt (phalga). in 9 iniye linda iyaye ikimi, ‘legal implication of dissolution of statutory marriage in a dual marriage: a cultural relativist examination’ (2022) 2 (2) ucc law journal 197. 10 funke fagbohun, you and the law: layman’s guide to rights and liabilities (mij professional and publishers limited 1986) 178. 11 oguntoyinbo v oguntoyinbo (2017) lpelr-42174(ca) 27 para. a. 12 umar v umar (2022) leplr-57114(ca) 29-30 para. c. 13 i am indebted to many okrikans for their willingness to disseminate in-depth information on ya marriage, particularly on okurukaka ceremony. i am particularly indebted to pastor amabere b. jamabo (head of oko and marcus families of nangibo and jamabo-owu war canoe houses in ogoloma, respectively; amaopusenibo of ogoloma kingdom) for the tour to okrika communities to personally witness ya marriage with its okurukaka ceremony. i also owe a debt of gratitude to sir granville isetima abibo (senior advocate of nigeria) now of blessed memory, elder wilcox abereton (senior advocate of nigeria) and all other natives of okrika that were interviewed in the course of this research, particularly, pastor amabere b. jamabo (head of oko and marcus families of nangibo and jamabo-owu war canoe houses in ogoloma, respectively; amaopusenibo of ogoloma kingdom), pastor (elder) diepriye l. jamabo (elder and vice chairman of owu and okolobo war canoe houses in ogoloma, respectively), mr. peter levi amadi and dr. nemi erema. 14 evidence act 2011, s 70. 15 (2005) 3 nwlr (pt. 913) 665. 16 john kalipa, okrika customary law (in perspective) (kraft books limited 2010) 22. 17 pulse.ng, ‘ijaw culture: a brief walk into the lives of one of the world’s most ancient people’ <https://www.pulse.ng/ lifestyle/food-travel/ijaw-culture-a-brief-walk-into-the-lives-of-one-of-the-worlds-most-ancient-people/wjfy3mb> accessed 6 april 2024; connect nigeria, ‘7 facts you didn’t know about the ijaws’ <https://articles.connectnigeria.com/articles/2015/ 04/7-facts-you-didn’t-know-about-the-ijaws/> accessed 6 april 2024. 18 charles ds ogan, okrika: a kingdom of the niger delta (onyoma research publications 2008) 1. african customary and religious law review (acarelar) 5 (2024) 157 | p a g e addition, there are people of okrika stock in opobo/nkoro local government area of rivers state. these are nkoro people, many of whom are reported to be the descendants of the original inhabitants of port harcourt. they migrated upon the acquisition of port harcourt by british colonists in 1913.19 the okrika people speak a dialect of the izon (ijaw) language, very similar to kalabari and ibani dialects.20 okrika dialect, with kalabari and bonny (ibani) dialects, fall into the north-eastern group of dialects which are interintelligible with brass-nembe dialect.21 thus, the word ‘okrika’ may be used to refer to any of two things; the nativity of the okrika people or a dialect of the izon (ijaw) language. 3. types of marriage in okrika custom there are basically two recognised types of marriage in okrika namely igwa and ya.22 a renowned author, opuogulaya, pointed out that other than the two recognised marriages, any other type of relationship between a man and woman whereby off-springs result is a ‘back-door’ affair, and termed lekiria.23 in essence, lekiria is cohabitation. it is regarded as potential or ‘would-be marriage’, but not marriage properly so called. the okrika society frowns at this union. it does not condone it, although it sometimes winks at the union with the hope that by cohabitation, a resultant marriage will ensue.24 igwa marriage the igwa marriage is the small-bride-wealth form of marriage or loose form of marriage.25 the nuptial knots are loose, meaning that divorce is permitted. death of either spouse brings the marriage to an end.26 the marriage is contracted between natives of okrika or between a daughter of okrika extraction and a non-native. the word ‘igwa’ means ‘mixed’.27 thus, a woman and a man can marry under igwa marriage even though they hail from different families (war canoe houses) in okrika tribe or where the man is from another tribe other than okrika tribe.28 igwa marriage is basically matrilineal in form.29 the husband does not have full rights over his children, and the wife usually retains her maiden name. the children of such marriage inherit properties from their mother’s lineage.30 thus, all off-springs from the marriage belong either to the lawful husband of the wife’s mother or to her brothers.31 customary law of inheritance from the paternal family does not apply and a woman and her children may return to her birthplace.32 however, the tight customary rope around the possession of children born under igwa marriage is slackening under the pressure of modern times.33 consequently, in recent times, some children of igwa marriage are seen to inherit from their father’s lineage.34 ya marriage the full name for the okrika word ‘ya’ or ‘iya’ is ‘iyaye’, which means ‘my own’.35 ya marriage is the bigbride-wealth form of marriage.36 it is patrilineal in form or nature.37 thus, a woman married under ya marriage ceases to be a member of the family of her parents but solely a member of her husband’s family.38 the desire of some typical okrika women is that their husbands of okrika extraction marry them under the ya system of marriage. this is because the marriage gives an okrika woman an edge over other women; either of okrika extraction or not, married by igwa system of marriage. it is also the belief of okrika indigenes that ya marriage is like a woman’s birthright in her husband’s family. thus, ya marriage gives a woman a pride of place among okrika communities. it serves as a crown of full authority amongst her husband’s people. it accords a woman the highest form of respect in her husband’s family. it is usually a great honour to an okrika woman and her father’s 19 ibid 2. 20 ibid 29. 21 kay williamson, ‘changes in the marriage system of the okrika ijo’ (1962) 32 (1) africa: journal of the international african institute 53. 22 charles ds ogan, (n17) 38. 23 edw opuogulaya, the cultural heritage of the wakirike: the okrika people (rivers state council for arts and culture 1975) 9. 24 alfred s abam, the customs and traditional of the okrika people (samag stationery limited 2012) 102. 25 charles ds ogan, (n17) 38. 26 ibid. 27 edw opuogulaya, (n22) 9. 28 ibid. 29 alfred s abam, (n23) 101. 30 dokiye oforibika, ‘the indispensability of african religion to the culture of bolo people in rivers state’ 249 <https://www.ajol.info/index.php/lwati/article/view/79668/69945> accessed 27 october 2024. 31 edw opuogulaya, (n22) 9. 32 charles ds ogan, (n17) 38. 33 edw opuogulaya, (n22) 9. 34 dokiye oforibika, (n29) 250. 35 edw opuogulaya, (n22) 7; alfred s abam, (n23) 96; charles ds ogan, (n17) 7. 36 charles ds ogan, (n17) 38. 37 alfred s abam, (n23) 96. 38 ibid. ikimi: a discourse on iya customary marriage in okrika: focus on okuru-kaka ceremony and a revisit of divorce laws in africa 158 | p a g e family when her husband marries her by ya marriage which is regarded as the highest form of marriage in okrika. it is pertinent to point out that ya marriage is incomplete without the okuru-kaka ceremony. okuru-kaka ceremony of ya marriage the climax of ya marriage in okrika is a special ceremony known as okuru-kaka. although ya marriage is a type of marriage celebrated amongst the kalabari tribe, which is also part of the izon (ijaw) ethnic group, the marriage celebration is devoid of okuru-kaka ceremony. this ceremony is only performed between couples from okrika extraction. okuru-kaka is the completion or perfection of ya marriage, and it involves tying the nuptial knot with ‘okuru’ (raffia cloth).39 the okuru is a raffia palm-cloth consisting of loose threadlike raffia sewn or woven together into one piece like a mat. it is a symbolic palm-cloth. according to opuogulaya, the effective factor in ya marriage is the provision of one yard of raffia cloth or the okuru, which is tied round the bride’s waist seven times by an elderly member of the family calling on the ancestors of the family. the couple is expected to drink together from the same cup, and the knot is thus tied.40 before the okuru is tied on the woman (bride), it will be placed in the family ancestral shrine,41 libation will be poured to the spirits of the ancestors who are called upon not only to witness the okuru-kaka ceremony, but also to give their consent as the okuru is tied round the waist of the woman seven times.42 while libation is being poured, petitions are directed to both the ancestral spirits and deities for connubial blessings.43 due to modernity and influence of christianity, there are slight modifications in the marriage ceremony to accommodate christian okuru-kaka ceremony in order not to deprive okrika indigenes that are of the christian faith, the benefit of this customary marriage. at the celebration of christian okuru-kaka, instead of calling on the ancestors of the family and exchanging vows before a deity in the family shrine, rather christian priests are consulted and prayers are offered to the almighty god. christian priests pray on the okuru, bless it and then hand it over to an elderly woman from the bride’s family, who would tie it around the bride’s waist in the bride’s family compound.44 it is pertinent to note that the most vital moment or climax of ya marriage is the tying of okuru around the woman’s waist, which is performed in the bride’s family during the okuru-kaka ceremony. the bride will be officially tied the okuru by an elderly person chosen by the war canoe house (family) of the bride.45 once tied, the okuru will not be loosened from the woman’s waist until she reaches her husband’s family house which may be in the same community or another okrika community. it is only in the husband’s family house that the okuru can be loosened. there, the bride’s mother-in-law will use a fathom of traditionally recognised wrapper known as njiri (george wrapper), to replace the okuru. the okuru would be loosened and the njiri tied around the bride’s waist.46 that act of loosening the okuru, known as okuru-fima, is the conclusion of the entire okuru-kaka ceremony. at the end of the ceremony, the okuru is kept in a safe place and remains in the possession of the bride forever.47 at her death, the okuru will be buried with her. although ya marriage may, in rare occasions, be contracted between a daughter of okrika extraction and a man from another tribe, the climax of ya marriage, which is the okuru-kaka ceremony, is usually excluded from the marriage celebration. this is because the worth of the okuru is unknown to the man’s tribe, and the concluding part of the ceremony okuru-fima is not performed by non-natives of okrika. okuru-kaka ceremony is the uniqueness and peculiarity of ya marriage in okrika. it is also one of the distinctive features between ya marriage in okrika and ya marriage in kalabari. the kalabari tradition of ya marriage is devoid of okuru-kaka ceremony. 4. ya marriage and the issue of divorce the okuru is a symbol of unbreakable bond between the married couple. once the okuru is tied and okuru-kaka ceremony is performed, the nuptial knot is expected to be for life and unbreakable at death.48 this means that tying the okuru around the bride’s waist is symbolic of the marriage’ indissolubility.49 the woman now belongs completely to the husband’s family and simultaneously ceases to be a legitimate member of her family of birth.50 traditionally speaking, the tying of okuru on the bride’s waist is an act of sealing which binds the woman to her husband. it signifies that she is bound to her husband and cannot be totally separated from him while she lives, 39 edw opuogulaya, (n22) 10; charles ds ogan, (n17) 38. 40 edw opuogulaya, (n22) 8-9. 41 ibid 10. 42 alfred s abam, (n23) 98. 43 ibid. 44 nemi w adoki and db oforibo balaka and okrika divisional council of chiefs, marriage price structure (samag limited 2015) 12; dokiye oforibika, (n29) 250. 45 nemi w adoki and db oforibo balaka and okrika divisional council of chiefs, (n43) 11. 46 ibid 11-12. 47 john kalipa, (n15) 48. 48 charles ds ogan, (n17) 38. 49 dokiye oforibika, (n29) 250. 50 charles ds ogan, (n17) 38. african customary and religious law review (acarelar) 5 (2024) 159 | p a g e unless she is divorced; which is usually rare.51 thus the seal can only be broken at her death. opuogulaya points out the weighty implication of tying the okuru thus: by this type of marriage all off-springs of the marriage as well as the wife, unless she is divorced, belong legally and customarily to the husband. the wife can never be married by another man under this type of marriage, unless divorced…. a woman married under ya system can be married under igwa if the ya husband is not actually carrying on with her as husband and wife. but the overriding condition is, that all off-springs of such a marriage belong, not to the biological father, but to the ya husband who by custom is regarded as the legal father of all such children.52 okrika native law and custom in respect of ya marriage is symbolic and reflects an acceptable usage by the people.53 a wife by ya marriage ceases to be a member of her family of birth, she cannot single-handedly divorce her husband. she must seek the support of her father’s family. however, there is paucity or dearth of cases on judicial and non-judicial dissolution of ya marriage. this is because in actual practice, to dissolve the marriage is easier said than done. a man may divorce his ya marriage wife, but this is only in form and not in substance.54 okuru-kaka ceremony, which is the climax of ya marriage, signifies that the marriage is indissoluble in substance. the concept of indissolubility of ya marriage is captured by kalipa in the following words: ‘the use of the ‘raffia cloth’ in an iya marriage under okrika custom denotes indissolubility of the marriage. indissolubility in the sense that the woman who contracted an ‘iya marriage’ belongs to her husband for life as she cannot by okrika custom contract another ‘iya marriage’.’55as a result of tying the okuru and performing the okuru-kaka ceremony, the man by okrika native law and custom is expected to accommodate and maintain his wife even when he decides not to continue with the marriage because she belongs to him for life.56 something, culturally significant, has to be done to the okuru (raffia cloth) else any steps taken by the husband in the process of divorce is a mere divorce in form. in substance, she is still his wife because, according to okrika traditional belief, even the bones of the woman belong to her ya marriage husband after her death. this belief applies even when the divorce is initiated by the wife. the concept and practice of indissolubility of ya customary marriage has been in existence from time immemorial. in the past, ya marriage was contracted mainly within the omuaru wari (war-canoe family house under a chief), and it was almost impracticable for a man from one such house to marry a woman from another house under ya marriage.57 one author puts it plainly, stating that originally, there was actually no divorce and the couple could not be separated. even when the marriage breaks down, the woman would not go back to her parents because by tradition, she belongs completely to the husband’s family and ceased to be a member of her family of birth at the moment the okuru was tied on her.58 only the death of the woman terminates the marriage. the death of the man does not terminate the marriage because it does not discharge those who will inherit his property from their obligation of caring for his surviving wife and seeing to her welfare.59 in modern times where many women are educated and gainfully employed, the welfare of a deceased man’s wife by ya marriage is barely entrusted to relatives of the deceased since the woman and her children not only inherit the property but are capable of managing their inheritance. generally, the death of a wife terminates a customary marriage completely and for all purposes.60 it extinguishes all the usual customary rights and obligations which exist between the families of the two spouses by virtue of the marriage, but the death of the husband, on the other hand, does not necessarily terminate the marriage.61 termination of the marriage at the death of the wife and not at the death of the husband per se is not peculiar to ya marriage. customary law regards marriage as coterminous with the life of the customary law wife. this implies that the death of the husband does not necessarily terminate the marriage because a woman may retain the status of a married woman for a number of purposes, which is usually the case, in spite of her husband’s death. the fact that divorce of customary marriage is sometimes easy and even without judicial intervention does not alter the position.62 cumbersome procedure for divorce of ya marriage it is common knowledge that in modern times, a woman married under customary law may initiate a non-judicial process of dissolving her marriage by leaving her matrimonial home with all her personal belongings and 51 nemi w adoki and db oforibo balaka and okrika divisional council of chiefs, (n43) 12. 52 edw opuogulaya, (n22) 7, 9. 53 john kalipa, (n15) 58. 54 iniye li ikimi, ‘development of the human rights of women in a cultural milieu’ (2018) 9 (2) naujilj 62. 55 john kalipa, (n15) 58. 56 ibid; alfred s abam, (n23) 100. 57 edw opuogulaya, (n22) 8. 58 charles ds ogan, (n17) 38. 59 ibid 38-39. 60 sn chinwuba obi, modern family law in southern nigeria (sweet and maxwell 1966) 378. 61 ibid 156. 62 ibid. ikimi: a discourse on iya customary marriage in okrika: focus on okuru-kaka ceremony and a revisit of divorce laws in africa 160 | p a g e informing her husband of her intention; or by permitting a subsequent customary marriage to be conducted with another man, with the aim of refunding the bride price paid by her former husband; or by defiantly indulging in promiscuity while still living with her husband.63 all these acts by a woman may constitute the process of divorce under igwa marriage but not under ya marriage. despite all or any of these acts, a woman married under ya marriage still belongs to her husband. divorce of ya marriage contracted between a man and a woman of okrika extraction is utterly different from the general mode of dissolving customary marriages. a woman may choose to separate from her husband but at her death, custom demands that the man bears the burial rites of the deceased woman. thus, there cannot be said to be an outright divorce although there may be separation. non-judicial divorce divorce of ya marriage is quite difficult, almost impracticable and most rare.64 in the past, it was very rare for a man to divorce his ya marriage wife. on the other hand, a wife could seek to obtain a divorce on very stringent conditions which includes refund as bride price the highest denomination of the currency in use which will be multiplied by the total number of strands counted from the loosened okuru (raffia cloth).65 in reality, the nuptial knot which was sealed by the tying of the raffia cloth or okuru, bought by the husband during the marriage ceremony, must be disintegrated as one of the conditions that must be fulfilled in the process of divorce. where divorce is initiated by the wife, she or a member of her father’s family will be expected to disintegrate the raffia (okuru) without allowing any piece to break or cut. each piece of the raffia has its monetary equivalence which will be stated by the husband. any broken piece of the okuru is regarded as a full piece and attracts the monetary equivalence of a whole piece. consequently, the woman’s family will be expected to return the monetary equivalence of the entire pieces of disintegrated okuru. the disintegrating of the okuru is the most difficult task in the divorce proceedings of ya marriage. it is difficult to loosen the okuru (entire piece of raffia cloth) without breaking or cutting each strand of raffia thread into shreds or smaller pieces. this is one reason that even in modern times, divorce is very rare under ya marriage. another reason is the general belief in okrika that there is no divorce, whatsoever, of ya marriage because the consent of the ancestral spirits remains immutable and cannot be reversed.66 for couples that celebrated christian okuru-kaka, it is the belief that there is no divorce since the almighty creator and originator of marriage hates divorce. judicial divorce customary marriage can also be dissolved by judicial means. however, ya customary marriage cannot, in reality, be dissolved by a judgment of a customary court without the performance of the non-judicial cumbersome procedure of detaching the okuru by the ya marriage wife or her family member, and payment of the price named by the husband for each detached okuru. any judgment dissolving the ya marriage without the procedure of detaching the okuru will be inchoate. this could be the reason for paucity of decided cases on dissolution of ya marriage. it would be an exercise in futility to commence divorce by judicial means without first disintegrating the okuru and fulfilling all the attached conditions. the okuru is the proof of okuru-kaka ceremony; the completion or perfection of ya marriage. thus, the okuru symbolises the evidence of ya marriage. although the court of appeal has rightly held in the case of adeyemo v. omobhude67 that no certificate is issued in the case of a marriage contracted under native law and custom and such a marriage can be proved by the credible oral evidence of any person who had witnessed the marriage ceremony in addition to that of one of the spouses,68 it appears that under okrika native law and custom, the okuru serves the same purpose as a certificate of marriage. to reiterate the above stated fact, several years back, it was near impossible to divorce. where a couple could no longer live together, they usually separated instead of divorce. if at the long run there must ultimately be divorce where mutual separation alone was not sufficient, the wife’s parents or brothers were required to refund double the total amount of money spent by the husband to marry his wife.69 more so, divorce proceedings barely reached the final aspect of disintegrating the okuru and paying the monetary equivalence because the husband’s consent must first be sought before divorce was commenced by his wife. and where he withheld consent, there was no divorce. one learned author puts it thus: ‘with particular reference to okrika division … under the system of marriage known as iya a husband can take steps to divorce his wife but the wife is not permitted by the local customary law to do so unless her husband consents to her doing so. if he refuses to give his consent, the marriage will continue to subsist’.70 63 margaret c onokah, family law (spectrum books limited 2003) 168. 64 edw opuogulaya, (n22) 10. 65 alfred s abam, (n23) 98. 66 ibid 99. 67 (1993) 8 nwlr (pt. 311) 291. 68 ibid 291 [305 para a]. 69 edw opuogulaya, (n22) 10. 70 margaret c onokah, (n62) 165. african customary and religious law review (acarelar) 5 (2024) 161 | p a g e refusal of the ya husband to give consent would affect the commencement of divorce by judicial means as well. while the wife required her husband’s consent to divorce him in the past, the husband did not require any consent from anyone to divorce his wife. according to kalipa, the symbolic raffia cloth (okuru) is tied round the woman seven times but the same is not done to the man as it is the man that is marrying the woman, and not the woman marrying the man. it is for this same reason that the man can divorce the woman while the woman cannot divorce the man without his consent.71 this appears to be discriminatory. many african states, including nigeria, are placed in a double bind; compelled on the one hand to protect and affirm customary laws whilst also obligated to uphold women’s rights to equality and non-discrimination.72 a situation where one spouse to a marriage is the repository of consent and can withhold or refuse consent to the detriment of the other spouse appears not only discriminatory but subjugating as well. the court also frowned at this practice. in the case of solomon v gbobo,73 the wife of the defendant whom the defendant married under ya customary marriage had left the defendant for another man. the plaintiff who is the father of the defendant’s wife sought a declaratory judgment at the high court that he was entitled to compel the defendant to receive the repayment of the dowry offered by him. counsel to the defendant contended that the high court lacked original jurisdiction to hear the case. the court presided by holden cj held that since there was no customary court in existence which had jurisdiction, the high court could assume jurisdiction. in granting the declaratory reliefs sought, the court held that ya marriage in okrika native law and custom gives the father the right to sue the husband in respect of the marriage contracted with his daughter, that the plaintiff’s daughter can divorce the defendant without the defendant’s consent. furthermore, the court held that a custom which the husband can divorce his wife at will, but the wife cannot obtain a divorce unless the husband consents is contrary to natural justice, equity and good conscience. this decision of the court overrides the cultural practice of obtaining consent before initiating divorce. 5. cultural implication of separation and remarriage of ya marriage wife where there is separation and not an outright divorce, the husband is expected, by native law and custom, to bear the burial expenses of his wife if she predeceases him, and specify the place of her internment because her remains belong to him. in a situation where the man predeceases his wife, the family of the deceased man would specify the place of the woman’s internment at her death even though she was separated from her husband before her demise. a woman who separates from her ya marriage husband may choose to remarry. she can marry a native of okrika or a non-native under igwa marriage, but cannot remarry under ya marriage. the okrika custom frowns at such person remarrying under ya marriage because the woman belongs to her ya marriage husband and is bound to him alone till her demise. furthermore, if the woman separates from her ya marriage husband and marries a non-native of okrika under the marriage act, that subsequent marriage is not recognised under okrika native law and custom. the woman is still regarded as belonging to her ya marriage husband and at her death, her corpse will be sent back to her ya marriage husband’s family for internment. more so, any child born in the course of promiscuity of a woman married under ya marriage or while she is separated from her husband or while she is remarried under igwa marriage without a proper divorce by the disintegrating of the okuru and payment of monetary equivalence, is customarily regarded as the child of her husband by ya marriage. in that case of solomon v gbobo,74 the substantive issue of the children belonging to the defendant was not decided upon by the court. however, the court, while referring to the custom, held that a custom by which a husband could divorce his wife at will, but the wife could not divorce her husband at will except with the prior consent of her husband was contrary to natural justice, equity and good conscience and therefore unenforceable under section 20(1) of the then high court law 1963. 6. philosophy behind indissolubility of ya marriage traditionally, the okrika family is polygynous. as in all the neighbouring tribes, the prospective husband’s family gives bride-price to the bride’s family.75 iya marriage is the most esteemed type of marriage in okrika having a unique cultural practice. this unique cultural practice is anchored on a philosophy which will be discussed below. according to john mbiti, philosophy of one kind or another is behind the thinking and acting of every people.76 the philosophy behind indissolubility of ya marriage is that a man and a woman joined together in matrimony are one flesh and where vows are taken before a deity coupled with the invoking of ancestral spirits to give consent to the union, such married couple can never be separated because the consent of the ancestral spirits are unalterable.77 this is also found in the act of the almighty creator of the universe who removed a rib out of the first-created man (adam), formed the first-created woman (eve) from that rib and presented the first-created 71 john kalipa, (n15) 58. 72 sonya r cotton and anthony c diala, ‘silences in marriage laws in southern africa: women’s position in polygynous customary marriages’ (2018) 32(1) speculum juris law journal 18. 73 (1975) ecsnlr 457. 74 (1975) ecsnlr 457. 75 kay williamson, (n20) 55. 76 john s mbiti, african religions and philosophy (2nd edn, heinemann educational publishers 1990) 1. 77 alfred s abam, (n23) 99. ikimi: a discourse on iya customary marriage in okrika: focus on okuru-kaka ceremony and a revisit of divorce laws in africa 162 | p a g e woman to the first-created man, thereby instituting marriage and making the couple one bone and flesh.78 furthermore, the one who originated marriage (almighty creator) stated that he hates divorce.79 this philosophy behind ya marriage is the reason that even if the ya married couple can no longer live together, what is obtainable at best is separation and not divorce. and where in the course of separation, the woman dies, her remains will be taken to her husband by ya marriage for internment. this is because by virtue of the okuru-kaka ceremony the woman became part and parcel of the man and her bones belong to him. this is also the reason that the woman cannot be remarried under ya marriage to another man, and even if she remarries under igwa marriage to a different man, the children of the igwa marriage are still regarded as those of her ya husband.80 it is believed that, any exchange of ya marital vow before the almighty god, for those okrika natives that are christians, require the consent of the almighty god in order for such vows to be broken. and the almighty creator has stated that he hates divorce. on the other hand, for those natives that are not christians, the family deity and ancestral spirits were called upon to give their consent during the okuru-kaka ceremony. such consent of the ancestral spirits remains immutable and cannot be reversed.81 one author puts it this way – a ceremony performed before the ancestors to solemnize marriage can never be revoked.82 7. similarity between ya marriage and yoruba customary marriage in pre-colonial era divorce had no place in pre-colonial nigerian communities.83 the introduction of foreign marriage laws with divorce as the necessary incident has had a tremendous influence on the indigenous attitude towards the formation of marriage and divorce.84 reiterating the issue of no-divorce in indigenous customary laws prior to colonial times, ajisafe, noted that divorce was not permissible in native law.85 commenting on the yoruba custom, johnson stated that some of the peculiarities that mark the yoruba wedded life are that women are never really married twice; that once married, they are attached forever to the house and family of their deceased husbands; that divorce is very rare, so rare as to be practically considered as non-existing; that a woman divorced from her husband can never be married.86 both okrika and yoruba tribes shared similar features in relation to marriage and divorce during the pre-colonial era. until date, okrika tribe still retains its cultural practice of indissolubility of ya marriage. 8. divorce and african society other than ya marriage in okrika, divorce was rare in many customary marriages across the african continent, and african society had much more stable families than what is obtainable of recent. according to elias, marriage under ancient customary law was almost always indissoluble, as it was looked upon as a permanent social and spiritual bond between man and wife on the one hand and their respective families on the other.87 however, from the advent of colonization and the imposition of colonial laws which were further incorporated into municipal laws in africa, divorce has infiltrated into african traditional marriages. thus, resulting in broken marriages, broken families and broken societies. a stable marriage has undeniable impact on the family and society at large. this is because marriage is the root of the family and the society. marriage can also be described as the only solid foundation for family life, and that without it, there cannot be a stable family, and by extension, a stable society.88 the family is the smallest unit in the social structure of every society. the family is the basis of every human community, and may be regarded as the nucleus of society.89 in the tanzanian case of mathias s/o masaka v. republic,90 the court of appeal reiterated the point that a family is the nucleus of any society. consequently, the welfare of a family or of families anywhere should be the concern of the community. it was also pointed out by the supreme court in the namibian case of chairperson of the immigration selection board v. frank and another,91 that family is the natural and fundamental group unit of society and an institution of namibian society. family is the most important primary group in the society. as such, it is universal in the sense that no human 78 holy bible, genesis 2:21-24. 79 holy bible malachi 2:16. 80 edw opuogulaya, (n22) 7, 9. 81 alfred s abam, (n23) 99. 82 re bradbury and pc lloyd, the benin kingdom and the edo-speaking peoples of south-western nigeria – together with a section on the itsekiri (international african institute 1957) 190. 83 margaret c onokah, (n62) 16. 84 ibid. 85 ajayi kolawole ajisafe, the laws and customs of the yoruba people (george routledge & sons ltd 1924) 54. 86 samuel johnson, the history of the yorubas: from the earliest times to the beginning of the british protectorate (cms nigeria bookshops 1921) 116. 87 t oluwale elias, the nigerian legal system (routledge & paul 1963) 298. 88 ma ayemieye, ‘the illegality of cohabitation’ being a paper delivered on the occasion of international federation of women lawyers (fida) workshop tagged “towards a better tomorrow” held at yenagoa, bayelsa state on 6 th june, 2012, 5. 89 ei nwogugu, family law in nigeria, (rev edn, heinemann educational books (nigeria) plc 1990) lxxxvii. 90 (criminal appeal no. 274 of 2009) [2014] tzca 272 (11 december 2014). 91 (sa 8 of 1999) [2001] nasc 1 (5 march 2001). african customary and religious law review (acarelar) 5 (2024) 163 | p a g e society could possibly exist or has ever existed without some form of family organisation.92 the african charter on human and peoples’ rights which was adopted by the heads of state and government in nairobi, kenya , on 27th june 1981 and which entered into force on 21st october 1986 in accordance with article 63 of the charter, provides in article 17.3 that the promotion and protection of morals and traditional values recognized by the community shall be the duty of the state. article 18.1 of the charter provides that the family shall be the natural unit and basis of society. it shall be protected by the state which shall take care of its physical health and morals. furthermore, the charter provides in article 18.2 that the state shall have the duty to assist the family, which is the custodian of morals and traditional values recognized by the community. this means that the state has a role to play in the safeguarding of family structure in society. both the court, law and even lawyers have a part to play in order to achieve a stable society in africa. the purpose of law in any society claiming to be civilized is to bring order, stability and interdependence consciousness in a given society.93 african traditional values of the past included sustainable marriages and secured family bond. all hands must be on deck to ensure that the marriage institution in africa, with its laws, objectives and traditions are preserved. it is well known that customary marriage is a contractual relationship between two families the husband’s family and the wife’s family. divorce of such marriage has to involve two families as well. generally, either the husband or the wife of a customary marriage may initiate divorce action. once divorce has been initiated the families of the two spouses usually become involved. they participate in the divorce proceedings, just as they did in contracting the marriage.94 generally, there are two forms of dissolution of customary marriages, viz, non-judicial and judicial divorce. the non-judicial divorce; also known as extra-judicial divorce, is one made without resort to the courts.95 usually, a couple would have recourse first to non-judicial mode. in the event of a deadlock of the dispute, judicial mode is then resorted to as a final recourse.96 on the other hand, statutory marriage in nigeria or civil marriages as it is referred to in some other jurisdictions, is said to be dissolved when it is terminated by death or divorce.97 in a strict sense, divorce in some jurisdictions such as namibia means the termination of a marriage by an order of court.98 thus, statutory or civil marriage can only be dissolved via judicial means. the court can only pronounce a decree of dissolution of the marriage where it finds that the marriage has broken down irretrievably after certain facts culminating into irretrievable breakdown of marriage as contained in the marriage law or matrimonial causes act of the jurisdiction in question has been proved.99 referring to the zambian court, mushota observed that the duty of the court is to inquire into the facts alleged to establish irretrievable breakdown of marriage. if there is anything inconsistent with this, then the condition has not been met.100 irretrievable breakdown of marriage has been described as a marriage which stood no chance because the parties to the marriage have ceased cohabiting and one of the parties or both intend not to resume cohabitation.101 divorce law has always been one of the most contentious subjects in family law. marriage and its place in society are seen as significant political and cultural issues, with the health of society somehow bound up with the extent to which marriages appear to be stable or to be failing.102 it has been observed that making divorce too easy is viewed by some persons as a means of undermining traditional family life as well as the stability of society.103 furthermore, it was observed that some persons have sought to liberalise divorce in order to assist the emancipation of women from the traditional role of being a house wife.104 however, it is the suggestion of this paper that the state can protect the family institution and by implication, marriage institution, by the court encouraging more of reconciliatory meetings between estranged spouses. aside divorce, there are other matrimonial causes which can be resorted to, such as judicial separation. lawyers have a role to play in preserving marriages. clients seeking divorce can be dissuaded from it through alternative dispute resolution mechanisms or alternative matrimonial causes. lawyers must take heed and not wish to pull a fast one on their clients and the community at large by putting their financial interests over and above the interests of the civilized society.105 92 ee ezewu and to fasokun and cs akpe and ma oluduro, sociological and philosophical foundations of education (heinemann educational books (nigeria) limited 1981) 26. 93 n.b.n. ltd. v savol w.a. ltd. (1994) 3 nwlr (pt. 333) 435. 94 margaret c onokah, (n62) 165. 95 funke fagbohun, (n9) 182. 96 margaret c onokah, (n62) 166. 97 el johnson, family law (2nd edn, sweet & maxwell 1965) 29. 98 dissolution of marriages act 2024, s1. 99 matrimonial causes act (mca) (cap m7) lfn 2004, s15(1) and (2); matrimonial causes act (mca) 2007 of zambia, ss8 and 9; dissolution of marriages act 2024 of namibia, s2. 100 lilian mushota, family law in zambia: cases and materials, (university of zambia press, 2005) 157. 101 b mckenna, ‘breakdown of marriage’ (1967) 30(2) modern law review; 14. 102 n lowe and g douglas, bromley’s family law (10th edn, oxford university press, 2007) 262; dr. mutombo v livian mutombo (hp/d 181 of 2009) [2012] zmhc 83 (13 december 2012). 103 ibid. 104 ibid. 105 nba v ofomata (2017) 5 nwlr (pt. 1557) 128. ikimi: a discourse on iya customary marriage in okrika: focus on okuru-kaka ceremony and a revisit of divorce laws in africa 164 | p a g e 9. conclusion the okrika people are part of the izon or ijaw ethnic group which is arguably the fourth largest ethnic group in nigeria. this paper discussed customary marriages of the okrika people with particular reference to iya or ya marriage. the unique aspect of ya marriage is that once the final segment of the marriage known as okuru-kaka has been done, the woman is regarded as bound to her ya husband forever; both in her lifetime and at death.106 thus, divorce is quite rare because the procedure for divorce is cumbersome. at best what is obtainable in ya marriage is separation. the ya husband is responsible for the burial expenses of his estranged wife at her death and he decides the place of her internment because in substance, there is barely any divorce between the couple. if the husband predeceases his estranged wife, the family of the husband will be responsible for the burial expenses and place of internment of the woman at her death. only the woman’s death can actually dissolve the marriage after internment has been done. the husband’s death does not dissolve ya marriage. unlike statutory marriage which is dissolved by a decree of dissolution of marriage made by a court of competent jurisdiction, ya marriage cannot, in reality, be dissolved by a judgment of a court only. any judgment which orders the dissolution of ya marriage will, in essence, be inchoate. this is because the non-judicial procedure of detaching the okuru and paying the price quoted by the ya husband for each detached okuru must be done before a divorce can be said to have taken place. however, such divorce is only in form and not in substance. there cannot be said to be any divorce even if an order has been given by a court for dissolution of ya marriage. the customary court would also be wary in order not to make an order in futility. more so, the ya husband may not give his consent to commence the non-judicial procedure for divorce. where consent is not granted, the okuru which serves as a symbol or proof of the existence or continuance of ya marriage will not be detached. however, the court has frowned at the issue of withholding consent. the indissolubility or no-divorce rule is not only applicable to ya marriage. it is also a feature of statutory or civil marriages in some jurisdictions. however, it is for just a period of two years in nigeria, which can be abridged with the leave of court.107 in zambia, the no-divorce rule is for a shorter period of one year.108 the rate of divorce, particularly for statutory marriage, is quite on the increase. it appears that customary marriages are even much more enduring in recent times than statutory or civil marriages. there is the need to strengthen the marriage institution in africa, which is the bedrock of society. thus, divorce should not be liberalised. it is thus recommended that the no-divorce rule in statutory or civil marriages be extended beyond the shorter period provided in the different laws. reconciliation between estranged spouses through court-centred and non-courtcentred alternative dispute resolution mechanisms be made mandatory and encouraged by lawyers, court, state and stakeholders. where all efforts at reconciliation fail, estranged spouses should be encouraged to resort to other matrimonial causes such as judicial separation, especially where there are children born to the marriage. 106 iniye li ikimi, (n53) 62. 107 mca (cap m7) lfn 2004, s30. 108 mca 2007, s 6 (1). african customary and religious law review (acarelar) 5 (2024) 1 | p a g e role of morality in criminalisation of human acts: a comparative study of nigeria, canada, and india* abstract criminalisation of human conduct remains an intricate procedure that is often controlled by various factors, including political, moral, economic, social and cultural considerations. among these, morality which is deeply embedded in cultural, religious, and societal norms plays a substantial role in determining which actions are deemed criminal. this paper therefore examined the intricate interplay between morality and the criminalisation of human acts with a focus on nigeria, canada, and india. by comparing these jurisdictions, the paper highlighted the diverse ways in which moral values influence the criminalisation process, examining judicial interpretations, legal frameworks and practices obtainable in these jurisdictions’ criminal justice system and societal attitudes. by analyzing the similarities and differences in their approaches, this paper underscored the dynamic interface between morality and law, providing an informed understanding of how different societies navigate the complex terrain of criminalisation. keywords: morality, criminalisation of human acts, comparative study, nigeria, canada, india. 1. introduction human intellect deems certain acts as morally good and praiseworthy because it recognizes they are aligned with their true purpose, appropriate for a rational being, and conducive to human perfection. conversely, it views other acts as morally bad and deserving of blame because they deviate from their true purpose, are unfit for a rational being, and degrade rather than enhance human nature.1 the intersection of law and morality has long been a topic of heated and ongoing debate.2 this stems from the intrinsic link between morality and law in the development of criminal justice systems. while the primary function of law is to regulate behaviour and maintain social order, morality often provides the foundational values that inform what is considered acceptable or unacceptable conduct. this paper explores the role of morality in the criminalisation of human acts in three countries with distinct legal traditions: nigeria, canada, and india. nigeria, with its pluralistic legal system, reflects a confluence of indigenous, islamic, and english common law traditions. canada, rooted in a common law framework represents a western liberal democratic approach. india, with its vast and diverse population, operates under a legal system influenced by british common law, colonial history, and deep-seated cultural and religious norms. the research methodology is doctrinal and involves a comparative legal analysis, utilizing both primary and secondary sources to explore how nigeria, canada, and india incorporate moral values into their criminal laws and the consequent implications for their legal systems. 2. morality and criminal law the question, ‘what is a crime?’ has garnered various answers and has evolved over time. a crime is considered an offence against the state, as well as against individuals, and is a public wrong. although crimes can be committed against individuals, they are wrongs that attract state sanctions. not all wrongs are criminal; what makes an act or omission a crime is the fact that law designates it as such and imposes penalties on those who commit it.3 ‘although crime is sometimes viewed as the equivalent of antisocial, immoral and sinful behaviour or as a violation of any important group standard, no act is legally a crime unless prohibited by law’.4 morality in turn is concerned with ‘conformity with recognized rules of correct conduct’, ‘the character of being virtuous, especially in sexual matters’.5 *by ikenga k. e. oraegbunam, phd (law), phd (philosophy of law), phd (religion and society), med (andragogy), bl, professor of law and applied jurisprudence, department of international law and jurisprudence, faculty of law, nnamdi azikiwe university awka, nigeria, email: ikengaken@gmail.com; ik.oraegbunam@unizik.edu.ng. tel: +2348034711211; and *nnamdi chimezie uzochukwu, llm, llb, bl, miad, pgdmja, anipr, pnm, mnim, faculty of law, nnamdi azikiwe university awka, nigeria, email: nnamdi.uzochukwu@yahoo.com, tel: 08033233187 1 oo ambrose et al, ‘the importance of morality in human action in the nigerian contemporary society’ [2021] (3) (4), sapientia foundation journal of education, sciences and gender studies, 209. <https://www.sfjesgs.com/index.php/sfjesgs/article/viewfile/242/246> accessed 10 june 2024. 2 bo okere, ‘the relationship of law and morality: dichotomy or complementarity’ [2002-2010] (9) nigerian juridical review, 1 <https://law.unn.edu.ng/wp-content/uploads/sites/12/2016/08/1.-the-relationship-of-law-and-morality-b.o.okere.pdf> accessed 9 june 2024. 3 ae arimoro, ‘interrogating the criminalisation of same-sex sexual activity: a study of commonwealth africa’ [2021] (42), liverpool law rev, 381. <https://link.springer.com/content/pdf/10.1007/s10991-021-09280-5.pdf> accessed 12 june 2024. 4k spencer & jw mohr, ’crime’ [2019] para 3. <https://search.proquest.com/docview/2316655701?accountid=14693&rfr_ id=info%3axri%2fsid%3aprimo> cited by ae arimoro, 381. 5 ba garner (ed), black's law dictionary (9th edn, usa: west publishing co, 2009) p 1100. mailto:ikengaken@gmail.com mailto:ik.oraegbunam@unizik.edu.ng mailto:nnamdi.uzochukwu@yahoo.com oraegbunam & uzochukwu: role of morality in criminalisation of human acts: a comparative study of nigeria, canada, and india 2 | p a g e though criminal law seeks to prevent harm by ‘communicating the wrongfulness’ and ‘moral’ culpability of the actions it prohibits,6 the relationship between morality and criminal law has remained under debate.7 the central question revolves around whether the law should enforce moral values and, if so, to what extent. two prominent theoretical perspectives provide contrasting views on this issue: legal moralism and legal positivism. legal moralism is a theory that asserts that a government or legal system ought to enforce moral norms. hence, the immorality of conduct is a sufficient reason for its criminalisation.8 proponents argue that certain moral standards are essential for maintaining social cohesion and that the law must uphold these standards. this perspective is often associated with the work of philosophers like devlin. devlin argued that any widely accepted public prejudice could justify criminalization and that any shift in common morality conceptually represented a 'disintegration' of social order.9 thus, society has a right to protect itself against behaviours that threaten its moral fabric. conversely, legal positivism espoused by scholars such as hart posits that the validity of legal rules stems solely from their enactment by a recognised political authority or accepted as binding in a given society, not because they are grounded in morality.10 as well noted, the positivist school asserts that law should be precise, value-free, and objective. in its most extreme form, it dismisses any moral considerations when determining what the law should be. to support this assertion, it replaces morally charged terms such as malice with more morally neutral concepts like foresight and intention.11 despite the controversies between morality and criminal law, it is accepted that ‘crimes are essentially immoral acts deserving of punishment’.12 3. historical role of morality in criminalizing human acts in nigeria culture nigeria's legal system is significantly influenced by its rich cultural heritage. before the colonial era, the indigenous peoples of nigeria had their own complex criminal legal systems, often rooted in their customs. custom is a practice that has been adhered to in a given locality under circumstances that warrant its acceptance as part of the law of that locality. for it to be recognized as customary law, such a practice must be reasonable in nature and must have been continuously followed, and as if it was a right, since the beginning of legal memory.13 conduct is therefore said to be customary if done ‘according to custom or usage; founded on, or growing out of, or dependent on, a custom’.14 since customary law is locally dependent, it therefore follows that it varies across ethnic groups and regions. hence, customary law in nigeria is deeply rooted in the moral and cultural values of various ethnic groups. these laws reflect communal beliefs and practices, and their enforcement often aims to uphold social harmony and moral order. for example, acts considered immoral or taboo are often criminalised under customary law, with penalties designed to restore community balance. religion according to richardson,15 the penal code was borne out of the efforts of an international panel of jurists, which advised the then government of northern nigeria on legal and judicial reforms in 1958. the panel chaired by the 6 ike oraegbunam & cld umezinwa ‘artificial intelligence entities, criminal responsibility and nigerian legal justice system’ [2020] (1) international journal of law and clinical legal education, 8 <https://www.nigerianjournalsonline.com/ index.php/ijolacle/article/download/2159/2108>. 7 bo okere, op cit, p 1 8 ba garner, op cit, p 978. 9 n lacey, ‘patrick devlin’s the enforcement of morals revisited: absolutism and ambivalence’ (2022) (1) lse law, society and economy working papers, 6. <https://eprints.lse.ac.uk/114320/3/lacey_enforcement_of_morals_revisited_published.pdf> accessed 9 june 2024. 10 ba garner, op cit, p 978. 11 ike oraegbunam & jnk chukwukelu, ‘section 24 of the criminal code and its effect on criminal liability in nigeria’ [2015] (3) (1) journal of law and criminal justice, 130 <http://dx.doi.org/10.15640/jlcj.v.3nla10> accessed 11 june 2024. 12 jc smith, smith and hogan criminal law (10th edn, bath; butterworth, 2007) p 17 (cited by aa isiaka and ef okaphor ‘concept of crime in the administration of penal justice in nigeria: an appraisal’ [2018] (9) (1) nnamdi azikiwe university journal of international law and jurisprudence, 249. <https://www.ajol.info/index.php/naujilj/article/download/168824/ 158290> accessed 11 june 2024.) 13 ea martin (ed), oxford dictionary of law (5th edn, usa: oxford university press, 2002) p 132. 14 hc black, black's dictionary of law (2nd edn, usa: west publishing co, 1910) p 310. 15 ss richardson, an australian citizen born in england in 1919, was called to the english bar at lincoln's inn in 1958. from 1946 to 1954, he served in the sudan political service. in december 1954, he came to nigeria as a member of her majesty's overseas civil service and later became secretary of the international panel of jurists, which advised the government of northern nigeria on legal and judicial reforms in 1958. in that same year, he was appointed to the attorney general’s chambers in kaduna, where he was responsible for introducing the penal code and criminal procedure code to the region's 753 native and customary courts. see the biography page, ss richardson, notes on the penal code law (4th edn, zaria: ahmadu bello university press, 1987). african customary and religious law review (acarelar) 5 (2024) 3 | p a g e then chief justice of sudan included a retired judge of the supreme court of pakistan which primarily recommended the establishment of a criminal law system in the northern region that would gain international acceptance, be uniformly applied to all residents, be non-discriminatory, and generally acceptable throughout the region. given the predominantly muslim population, the new system needed to align with the holy qur'an and sunna.16 in january 1959, a committee of muslim jurists, led by malam junaidu, the waziri of sokoto, reviewed the draft bill and recommended several amendments.17 it was designated as cap 89 in the laws of northern nigeria, 1963, and came into effect on 30th september 1960 by penal code law, 1959 (commencement) notice, 1960 (nrln 96 of 1960).18 richardson disclosed that the arrangement established in the northern region in 1959-60 aimed to minimize discrimination in the culturally diverse society. the penal code ensured that criminal law would be acceptable and uniform to all communities in the region, while also protecting individuals' rights to settle their personal and family matters in accordance with native law and custom, including, when applicable, muslim law.19 the foregoing shows that the penal code took cognisance of the islamic religion which by default is embellished with moral norms. 4. some nigerian criminal provisions reflecting morality criminal code sections 214 to 233a of the criminal code20 is dedicated to a category of offences known as ‘offenses against morality.’ this includes unnatural offences,21 indecent treatment of boys under fourteen and indecent practices between males22, defilement of girls under thirteen and householder permitting defilement of young girls on his premises, defilement of girls under sixteen and above thirteen, and of idiots; indecent treatment of girls under sixteen,23 attempts to procure abortion, attempt to procure own miscarriage, supplying drugs or instruments to procure abortion 24and indecent acts generally.25 same sex marriage (prohibition) act it is often said that many africans view homosexuality as an immoral western import, and the continent is rife with harsh homophobic laws. this perspective is said to be rooted in the idea that african societal values and notions of propriety are heavily influenced by religious ideologies of morality, shaping attitudes and laws regarding sex and gender.26 abrahamic faiths and colonial law have also been alleged to be the driving force behind the criminalization of homosexual activity in most commonwealth states in africa.27 however, the aversion to same-sex relationships is not unique to african or abrahamic cultures. in fact, most cultures and religions denounce same-sex relations. for instance, gay sex has been illegal in nigeria since british colonial rule. section 214(1) of the cca and 284 of the pc which laws were largely influenced by non-nigerians prohibit samesex relationships under the broad terms ‘carnal intercourse/knowledge’ ‘against the order of nature’. the criminalisation of same-sex relationships in nigeria highlights the role of morality in shaping criminal law. same sex marriage (prohibition) act 2013 criminalises same-sex marriage and public displays of same sex relationships. this law reflects the prevailing moral and cultural values in nigeria, where homosexuality is widely considered immoral and against religious teachings. cybercrimes (prohibition, prevention, etc) act section 23 of the cybercrimes (prohibition, prevention, etc) act 201528 prohibits child pornography and related offenses. this includes intentionally using a computer to produce, offer, make available, distribute, transmit, or procure child pornography for oneself or another person, punishable by imprisonment terms of up to 10 or 5 years, depending on the case. sub-s 2 prohibits knowingly making or sending other pornographic images to another computer through unsolicited distribution. subsection 3 prohibits intentionally proposing, grooming, or soliciting to meet a child through a computer for the purpose of engaging in sexual activities with the child. it also 16 ss richardson, loc cit, p 1. 17 ss richardson, loc cit, p 2. 18 ss richardson, loc cit, p 25. 19 ss richardson, loc cit, p 8. 20 cc cap c39 lfn 2004, ss 214 – 233a. 21 cc 2004, s 214. 22 cc 2004, ss 216 and 217. 23 cc 2004, ss 218 and 219, 221, 222. 24 cc 2004, ss 228, 229 and 230. 25 cc 2004, s 231. 26 m omilusi, ‘between local acceptability and international opprobrium: on nigeria’s anti-same sex marriage law; is western voice a human rights advocacy or cultural imperialism?’ [2021] (17) (3), cross-cultural communication, pp 49 and 52. <http://www.cscanada.net/index.php/css/article/download/j.css.1923669720130903.1160/4843> accessed 11 june 2024. 27 ae arimoro, op cit p 379. 28 cppa 2015, s 23. oraegbunam & uzochukwu: role of morality in criminalisation of human acts: a comparative study of nigeria, canada, and india 4 | p a g e criminalizes engaging in sexual activities with a child by abusing a recognized position of trust, authority, or influence over the child, including within the family, or exploiting a particularly vulnerable situation of the child, such as mental or physical disability or dependence. section 24(a) of the cppa originally criminalizes the act of knowingly or intentionally sending a message or other content via computer that is grossly offensive, pornographic, or of an ‘indecent, obscene,’ or menacing, or causing such content to be sent. following the recent amendment of the cppa,29 the terms ‘indecent,’ ‘obscene,’ ‘grossly offensive,’ and ‘menacing’ were removed, leaving only ‘pornographic.’ without disputing the rationale for removing certain terms from section 24(a) of the cppa, it is important to note that ‘indecent’30 and ‘obscene’31 are deeply rooted in morality and could have been retained. in contrast, ‘grossly offensive’ and ‘menacing’ are more prone to misuse in ways that could suppress free speech and were rightly deleted. furthermore, the terms ‘indecent’ and ‘obscene’ are well established in various provisions of nigerian criminal law, including sections 170 and 233b of the cca which criminalize the knowing publication of indecent or obscene articles. with the deletion of these morality-based terms from the cppa, there is concern that it might create a loophole allowing the unchecked online publication of indecent and obscene materials, potentially undermining the nation's moral fabric. armed forces act the armed forces act cap a20 lfn 200432 also prohibits sexual relations with the spouse of fellow service personnel, an offence that can result in imprisonment for up to five years.33 other morality-related offences, such as sodomy, bestiality, and acts of gross indecency, are also addressed and penalized under the act.34 5. morality and criminal laws in canada in canada, the influence of morality on criminal law is evident in several areas, particularly those involving sexual conduct and public decency. however, canadian laws and judicial decisions also emphasize the protection of individual rights, leading to a more restrained approach to criminalising morally contentious acts. the canadian criminal code 198535 was first created in 1892 which applies all across the country. the law is being updated regularly to reflect changes in society.36 between nov 25, 2002 and jan 13 2004, there were about 126 older versions of the cc.37 the rationale for some of the amendments was to update the provisions to be more liberal and less moralistic, as demonstrated in the selected case studies below: abortion in r v morgentaler,38 the appellants, all duly qualified medical practitioners, set up a clinic to perform abortions upon women who had not obtained a certificate from a therapeutic abortion committee of an accredited hospital as required by the then s 251(4) of the criminal code (cc).39 the doctors had made public statements questioning the wisdom of the abortion laws in canada and asserting that a woman has an unfettered right to choose whether or not an abortion is appropriate in her individual circumstances. charges were preferred against the appellants alleging that they conspired with each other with intent to procure abortions contrary to then ss 423(1)(d) and 251(1) of the cc. counsel for the appellants moved to quash the indictment or to stay the proceedings before pleas were entered on the grounds that s 251 of the cc was ultra vires the parliament of canada, in that it infringed sections 2(a), 7 and 12 of the charter, and was inconsistent with s. 1(b) of the canadian bill of rights. the trial judge dismissed the motion, and the ontario court of appeal dismissed an appeal from that decision. the trial proceeded before a judge sitting with a jury, and the three accused were acquitted. the crown appealed the acquittal and the appellants filed a cross-appeal. the court of appeal allowed the appeal, set aside the acquittal and ordered a new trial. in restoring their acquittal, the supreme court noted that while the cc outlined procedures in section 251 for accessing therapeutic abortions, the defence provided by these procedures was deemed illusory due to the stringent measures requiring approval from a ‘therapeutic abortion committee’ of an ‘accredited or approved hospital.’ additionally, the court observed that the requirement in section 251(4) for at least four 29 cybercrimes (prohibition, prevention, etc) (amendment) act 2024. 30 indecent publications are such that are ‘offensive to modesty and delicacy; obscene; lewd; tending to the corruption of morals.’ hc black, op cit, p 615. 31 the word ‘obscene’ means ‘extremely or deeply offensive according to contemporary community standards of morality or decency.’ see lp wood (ed) merriam-webster's dictionary of law (massachusetts: merriam-webster incorporated, 2011). 32 afa 2004. 33 afa 2004, s 79. 34 afa 2004, s 81. 35 cc 1985. 36 department of justice canada, ‘the criminal code of canada ‘<https://www.justice.gc.ca/eng/csj-sjc/ccc/index.html> accessed 11 june 2024. 37<https://www.canlii.org/en/#search/text=criminal%20code&searchid=2024-0612t22%3a06%3a55%3a181%2fe67bde1e074e4f788ac797fa4885a8a1> accessed 12 june 2024. 38 r v morgentaler [1988] can lii 90 (scc) <https://canlii.ca/t/1ftjt>, accessed 11 june 2024. 39 cc 1985, s 251(4) <https://laws.justice.gc.ca/pdf/c-46.pdf> accessed 11 june 2024. https://canlii.ca/t/1ftjt african customary and religious law review (acarelar) 5 (2024) 5 | p a g e physicians to be available at the hospital to authorize and perform abortions effectively made abortions inaccessible in many hospitals.40 hence, it was held that: section 251 clearly interferes with a woman's physical and bodily integrity. forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman's body and thus an infringement of security of the person.41 the court further held that: the deprivation of the s. 7 right in this case offends freedom of conscience guaranteed in s. 2(a) of the charter. the decision whether or not to terminate a pregnancy is essentially a moral decision and in a free and democratic society the conscience of the individual must be paramount to that of the state.42 despite the good intentions behind the court's decision to unconditionally legalize women's inherent right to control their own bodies, it seems the court overlooked the moral consideration of the unborn child's inherent right to life. this ruling has the potential to open the floodgates for abortion on demand in the jurisdiction, leading to possible health consequences and the erosion of society's moral fabric. instead of parliament adopting a middleground approach to significantly relax and re-enact the strict provisions on therapeutic abortion as outlined in the cc, it relied on the supreme court’s decision to repeal section 251 of the code thereby fully legalizing abortion in canada.43 assisted dying before 2021, section 241(b) of the cc provided that ‘everyone who aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.’44 in rodriguez v british columbia (attorney general),45 the appellant was suffering from an ailment which was rapidly deteriorating her condition. her life expectancy was between 2 and 14 months. though she wishes to live as long as she can still enjoy life, she however wanted physician to set up technological means so that she can end her life by her own hand when she can no longer enjoy life. she applied to the supreme court of british columbia for an order declaring that section 241(b) of the cc, which prohibited assisting in suicide, is invalid because it violated her rights under sections 7, 12, and 15(1) of the charter. she argued that, to the extent it prevented a terminally ill person from committing ‘physician-assisted’ suicide, it should be declared invalid by section 52(1) of the constitution act 1982. in dismissing her application, the court noted that while canada has great sympathy for those who wish to end their lives to avoid significant suffering, it has not been willing to condone the active assistance of a third party in this process, even for the terminally ill. the refusal is based on two primary reasons: first, ‘the active participation by one individual in the death of another is intrinsically morally and legally wrong.’ despite the above decision based on moral grounds, in the latter case of carter v canada (attorney general),46 the plaintiffs challenged the cc provisions prohibiting physician-assisted dying relying on the canadian charter of rights and freedoms. the supreme court of british columbia upheld the plaintiff’s arguments holding that the provisions unjustifiably infringe the equality rights, the rights to life, liberty and security of the plaintiffs. following the new trend in carter’s case, section 241 of the cc was amended in 2021 to decriminalize medical assistance in dying (maid). the new section 241.1 of the cc defines maid as: (a) the administering by a medical practitioner or nurse practitioner of a substance to a person, at their request, that causes their death; or (b) the prescribing or providing by a medical practitioner or nurse practitioner of a substance to a person, at their request, so that they may self-administer the substance and in doing so cause their own death as the administering by a medical/nurse practitioner of a substance to a person, at their request, that causes their death; or the prescribing or providing by a medical/nurse practitioner of a substance to a person, at their request, so that they may self-administer the substance and in doing so cause their own death. 40 r v morgentaler supra p 33. 41 r v morgentaler supra pp 32 -33. 42 r v morgentaler supra pp 37. 43 see, an act to amend the criminal code, the youth criminal justice act and other acts and to make consequential amendments to other acts (s.c. 2019, c. 25) <https://laws.justice.gc.ca/eng/annualstatutes/2019_25/fulltext.html>, accessed 12 june 2024. 44 c waite, ‘amendments to medical assistance in dying laws in canada’ <https://www.lexology.com/library/detail.aspx?g=add053e1-737e-49e3-a131-51345ed51b49>, accessed 12 june 2024. 45 rodriguez v british columbia (attorney general), 1993 can lii 75 (scc), [1993] 3 scr 519, <https://canlii.ca/t/1frz0>, accessed 12 june 2024. 46 carter v canada (attorney general) [2012] can lii 886 (bcsc) <https://canlii.ca/t/frpws>, accessed 12 june 2024. https://canlii.ca/t/1frz0 https://canlii.ca/t/frpws oraegbunam & uzochukwu: role of morality in criminalisation of human acts: a comparative study of nigeria, canada, and india 6 | p a g e section 241.2 (1) provides for eligibility for medical assistance in dying which includes that eligible persons must be at least 18 years of age and capable of making decisions with respect to their health; have a grievous and irremediable medical condition; made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering, including palliative care. prostitution the criminalisation of prostitution in canada has been a contentious issue, reflecting the complex interplay between morality and individual rights. historically, prostitution-related activities were criminalised based on moral objections and concerns about public order. however, on-going legal reforms in canada’s legal system have been shifting the focus on morality. one such landmark case is canada (attorney general) v bedford.47 in the case, b, l, and s, who are current or former prostitutes, applied for declarations that three provisions of the cc which criminalize various activities related to prostitution, infringe their rights under section 7 of the charter. section 210 of the cc makes it an offence to keep or be in a bawdy house; section 212(1)(j) prohibits living on the avails of prostitution; and section 213(1)(c) prohibits communicating in public for the purposes of prostitution. they argued that these restrictions endanger the safety and lives of prostitutes by preventing them from implementing safety measures such as hiring security guards or screening potential clients to protect themselves from violence. b, l, and s also claimed that section 213(1)(c) infringes the freedom of expression guarantee under section 2(b) of the charter and that none of the provisions are justified under section 1. ultimately, the supreme court declared that section 210 (as it relates to prostitution), 212(1) (j), and 213(1)(c) of the cc are inconsistent with the charter. the court also struck the word ‘prostitution’ from the definition of ‘common bawdy-house’ in section 197(1) of the cc as it applies to section 210. incest incest is criminalised under section 155 of the cc. the code provides that everyone commits incest who, ‘knowing that another person is by blood relationship his or her parent, child, brother, sister, grandparent or grandchild, as the case may be, has sexual intercourse with that person.’ subsection 4 defines brother and sister to include half-brother and half-sister. in regina v ms,48 the appellant was found guilty of incest with his adult daughter and sentenced to five years' imprisonment. hence, he appeals against both conviction and sentence questioning the constitutional validity of the prohibition of incest in section 155 of the cc. the appellant raised several issues in the appeal which include whether section 155 does not infringe the appellant's freedom of association guaranteed by section 2(d) of the canadian charter of rights and freedoms by restricting his freedom to associate with his adult daughter in a sexual relationship? whether section 155 does not discriminate on the basis of sexual orientation contrary to section 15 of the charter? whether the law does not infringe on the appellant's freedom of conscience and religion guaranteed by section 2(a) of the charter by reason that it is ‘secular enforcement of a divine law’? the appellant contended that freedom of religion also encompasses freedom from religion, stating his choice not to adhere to any religious belief. he argued that the prohibition against incest is rooted in religious doctrine and that section 155 enforces a judeo-christian principle to which he does not subscribe, thereby infringing on his freedom not to believe. he referenced judicial decisions to support the argument that the canadian courts are ‘concerned with justice not morals’.49 in dismissing the appeal, the court held that the appellant has not demonstrated that his intimate relationship with his daughter is the type of association the charter is intended to protect. no discrimination occurred in prosecuting the appellant for incest as his choice of sexual partner was criminalized on a rational basis being the prevention of harm to both the individual and the community. it was also held that freedom of conscience and religion is no more implicated by section 155 than by any other crime, as ‘virtually all criminal proscriptions can be traced back to a religiously based moral system’50 and that: the criminal law fundamentally deals with right and wrong. the criminal code gives expression to our society's moral principles. section 155 seeks to prevent the harm to individuals and to the community caused by incest. the fact that the offence is rooted in a moral principle developed within a religious tradition cannot support a claim for interference with the freedom to believe or not to believe under the charter.51 47 canada (attorney general) v bedford [2013] can lii 72 (scc) <https://canlii.ca/t/g2f56>, accessed 12 june 2024. 48 regina v ms [1996] can lii 17945 (bc ca), <https://canlii.ca/t/hvg29>, accessed 12 june 2024. 49 regina v ms (supra) paras 53 and 54. 50 regina v ms (supra) para 5. 51 regina v ms (supra) para 55. https://canlii.ca/t/g2f56 african customary and religious law review (acarelar) 5 (2024) 7 | p a g e in r v rpf,52 the appellants were found guilty of incest under section 155 of the cc. they appealed the decision, arguing that their rights to life, liberty, and security of the person, as guaranteed by section 7 of the canadian charter of rights and freedoms, had been infringed. the crown submitted that section 155 of the cc is not merely an example of the government ‘legislating morality’, but is designed to discourage conduct that ‘is destructive of the moral fibre of society.’ in dismissing the appeal, the court held that ‘there are some activities which cannot be allowed, even with consent of the participants, for example, assault causing bodily harm assisted suicide, sexual exploitation of a young person, and obscene performances and that incest is one of those offences. 6. morality and criminal laws in india morality plays a significant role in indian criminal law, particularly in areas related to family, sexuality, and public order. indian law often seeks to uphold traditional values, though recent legal developments indicate a shift towards greater individual rights and freedoms. the indian legal framework, particularly the indian penal code (1960), includes provisions influenced by morality. section 292 prohibits the sale of obscene53 materials, defining such materials as those that are lascivious, appeal to prurient interests, or have a corrupting and depraving effect on individuals likely to read, see, or hear them, considering all relevant circumstances. sections 372 and 373 address the offenses of selling or buying minors for purposes of prostitution, illicit intercourse, or any unlawful and immoral activities. section 377 prohibits unnatural offenses, stating that anyone who voluntarily engages in carnal intercourse against the order of nature with a man, woman, or animal shall be punished with life imprisonment or imprisonment for up to ten years, and may also be liable to a fine. a lone case study of same sex relationship will be used highlight the travail of morality in its role in criminalization of human conduct in india. same sex relationship naz foundation,54 a non-governmental organisation (ngo), filed a public interest litigation challenging the constitutional validity of section 377 of the indian penal code 1860.55 this s criminalizes what is described as ‘unnatural offences’ to the extent that it penalizes consensual sexual acts between adults in private. the challenge was based on the argument that section 377 of the ipc infringes upon the fundamental rights guaranteed under articles 14, 15, 19, and 21 of the constitution of india. the petitioners argued that section 377 of the ipc should only apply to non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. they contended that section 377 of the ipc is based on traditional judeo-christian moral and ethical standards, which view sex solely for procreation, and thus any non-procreative sexual activity is considered ‘against the order of nature’. they argued that criminalizing consensual oral and anal sex is outdated and inappropriate in modern society. the union of india, in response, relied on reports from the law commission of india regarding whether to retain s 377 of the ipc. they referenced the 42nd report of the commission, which noted that indian society largely disapproved of homosexuality, justifying its criminalization even in private among adults. the union argued that law should reflect societal perceptions and that section 377 of the ipc was initially enacted in line with the values and morals of the time in indian society. in its decision, the delhi high court acknowledged, in line with domestic and international studies and case laws that criminal laws like section 377 disproportionately impact gay men, targeting not just conduct but human identity, and essentially criminalizing all homosexual men. the court held that criminalizing consensual homosexual conduct violated the rights to life and liberty, equality before the law, and non-discrimination on grounds of ‘sex’ (including sexual orientation) as guaranteed by the indian constitution. the court emphasized that popular morality or public disapproval is not a valid justification for restricting fundamental rights under article 21. ‘constitutional morality’, derived from constitutional values, must take precedence over public morality, which is based on shifting notions of right and wrong. the constitution of india recognizes, protects, and celebrates diversity, and stigmatizing or criminalizing individuals based on their sexual orientation is against constitutional morality. thus, the court allowed the petition and declared section 377 unconstitutional insofar as it criminalizes consensual sexual conduct between adults in private, while maintaining the provision to criminalize non-consensual non-vaginal intercourse and intercourse with minors, thereby protecting the rights of victims of sexual assault.56 52 r v rpf [1996] can lii 5590 (ns ca) <https://canlii.ca/t/1mpv4>, accessed 12 june 2024. 53 obscenity is the characteristic or state of being morally abhorrent or socially taboo. a thing is considered obscene if it is ‘‘extremely offensive under contemporary community standards of morality and decency; grossly repugnant to the generally accepted notions of what is appropriate.’’ a material is legally considered obscene if, when taken as a whole, it appeals to the prurient interest in sex, as judged by the average person using contemporary community standards, or if it depicts sexual conduct in a patently offensive manner as specifically defined by the applicable state law. see, ba garner, op cit, p 1182. 54 naz foundation v government of nct of delhi and others [2009] 160 (dlt) 277 <https://indiankanoon.org/doc/ 100472805/> accessed 12 june 2024. 55 ipc 1860, s 377. 56 naz foundation v government of nct of delhi & others (supra) paras 79, 80, 86, 132. https://canlii.ca/t/1mpv4 oraegbunam & uzochukwu: role of morality in criminalisation of human acts: a comparative study of nigeria, canada, and india 8 | p a g e the verdict in the naz foundation’s case decriminalized homosexual acts between consenting adults in india, was short-lived, as it was later overturned by the supreme court of india in suresh kumar koushal & anr v naz foundation & ors.57 in this case, a twojudge bench reinstated section 377 of the ipc. the additional solicitor general argued for the retention of the s citing strong ‘societal disapproval’ of such conduct stating that the legislature, representing the will of the people, had decided not to delete the s. he contended that it was not for the court to ‘import the extra-ordinary moral values and thrust the same upon the society’ by declaring the provision unconstitutional. the supreme court observed that while section 19 of the indian constitution58 protects certain rights, subsections (2) and (4) permit making laws that impose reasonable restrictions on these rights in the interests of ‘public order, decency or morality’. it further noted that every legislation enacted by parliament carries with it a presumption of constitutionality founded on the premise that the legislature, being a representative body of the people and accountable to them is aware of their needs and acts in their best interest within the confines of the constitution. it further noted that while reading down section 377 ipc, the high court overlooked that a ‘miniscule fraction’ of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted for committing offence under section 377 ipc and this cannot be made sound basis for declaring that section ultra vires the constitution. consequently, it held that section 377 ipc does not suffer from the vice of unconstitutionality and the declaration made by the division bench of the high court is legally unsustainable.59 but in 2018 a five-judge bench in navtej singh johar v union of india ministry of law and justice60 unanimously read down section 377 of the ipc, overruling the decision in suresh kumar koushal (supra). the petitioners had reopened of the high court’s position on ‘‘constitutional morality’’ arguing that even if the majority disapproved the sexual orientation or choices of lgbt persons, the court as the final arbiter of constitutional rights, should uphold constitutional morality over social morality. in its decision, the court held that constitutional morality encompasses more than just the core principles of constitutionalism. it includes the virtues of fostering a pluralistic and inclusive society, adhering to constitutional principles which permeate the state apparatus for the betterment of every citizen. it added that, as the final arbiter of the constitution is must uphold its principles without being influenced by ‘majoritarian view or popular perception’ by being guided by the conception of constitutional morality not by the ‘societal morality’. more so, that section 377 ipc, insofar as it penalizes any consensual sexual relationship between two adults, whether homosexuals, heterosexuals or lesbians is unconstitutional and that consensual carnal intercourse among adults, be it homosexual or heterosexual, in private space, does not in any way harm the public decency or morality. it however maintained that section 377 ipc remains in force and constitutional against those engaging in any kind of sexual activity with an animal.61 in his concurrent judgement, justice chandrachud stated that by penalising sexual conduct between consenting adults, section 377 imposes ‘moral notions’ on a constitutional order. he warned against allowing ‘morality to dictate the terms of criminal law’ as a single, homogenous morality will marginalise the ‘morality of minorities’. lastly, he pointed out that the lgbtq community has been victimised by the ‘victorian morality’ at the time the ipc was enacted. therefore, it is ‘constitutional morality, and not mainstream views about sexual morality’, that should guide the validity of section 377.62 the above illustrates how india has been reducing the influence of traditional morality in its legal interpretations by adopting concepts such as constitutional morality, foreign practices, and the notion of consensual sexual practices in private. this shift aims to ensure a western version of democratic framework governed by the rule of law, where liberty, autonomy and wild pursuit of happiness reigns. it also goes without saying that this reading down of section 377 of the ipc invariably endorses adultery officially. with this trend, it is hoped that bestiality will not be tolerated by the jurisdiction, especially if done in private. 7. comparative analysis evolving legal standards the degree to which morality influences criminal law varies significantly. nigeria, with its pluralistic legal system, shows a strong influence of moral and religious values. most, if not all, of the morality-related criminal law provisions in nigeria have remained unchanged. nigerian society generally holds conservative views on sexual morality, with strong opposition to same-sex relationships. these attitudes are reflected in the country's stringent 57 suresh kumar koushal & anr v naz foundation & ors [2014] scc (1) <https://indiankanoon.org/doc/58730926/> accessed 12 june 2024. 58 <https://lddashboard.legislative.gov.in/sites/default/files/coi...pdf> accessed 12 june 2024. 59 suresh kumar koushal & anr v naz foundation & ors (supra) pp 28, 43, 54. 60 navtej singh johar v union of india ministry of law & justice [2018] 10 scc (1). <https://indiankanoon.org/doc/ 168671544/> accessed 12 june 2024. 61 navtej singh johar v union of india ministry of law & justice (supra) pp 119, 252, 253 per nariman j. 62 navtej singh johar v union of india ministry of law & justice (supra) pp 67 and 137 per chandrachud j. african customary and religious law review (acarelar) 5 (2024) 9 | p a g e laws and harsh penalties for sexual offences. the enactment of the same sex marriage (prohibition) act, despite strong opposition from the western world, particularly the usa, demonstrates that nigeria is not inclined to modify its criminal laws to align with legal liberalism, which favours neutrality or the abolition of morality-based criminal provisions. canada and india in turn demonstrates an evolving approach to morality in criminal law, with recent legal reforms reflecting changing societal attitudes. examples include the decriminalisation of same sex relationships in india, the legalisation of maid among others. canada in particular appears to be on a fast lane towards decriminalising of its morality-related criminal legal provisions. in rodriguez63 decided in 1993, the court expressed its unwillingness to condone maid even for the terminally ill, reasoning that the active participation by one individual in the death of another is ‘intrinsically morally and legally wrong.’ however, 19 years later, in carter,64 the court upheld maid, ruling that the cc provisions against it unjustifiably infringed on the plaintiffs' equality rights, and their rights to life, liberty, and security. nine years after this decision, section 241 of the criminal code was amended to decriminalize maid. this brazen drop in moral content implies that maid is now intrinsically morally and legally acceptable in canada. public attitudes public attitudes towards morality and criminalization differ among the three countries, shaping legal developments. in nigeria, strong public support for traditional moral values persists, whereas canada and india are increasingly embracing liberal individual rights and freedoms. while moral non-conformists in nigeria seem reluctant to challenge the status quo by seeking recognition of their unconventional behaviour through lawsuits, ngos, rights groups, and non-conforming individuals persistently litigate against criminal provisions they perceive as infringing on their asserted right to deviate in canada and india. 8. conclusion the role of morality in the criminalisation of human acts is a complex and dynamic aspect of legal systems. in nigeria, canada, and india, moral values significantly influence the development and enforcement of criminal laws, though the degree and manner of this influence vary widely. nigeria's pluralistic legal system reflects a strong interplay between moral, cultural, and religious values. canada's liberal democratic framework balances moral considerations with individual rights. india's evolving legal landscape shows a shift towards greater individual freedoms while still reflecting some traditional moral values. by comparing nigeria, canada, and india, this paper highlighted the diverse ways in which moral values shape legal norms and the implications for criminal justice systems. the ongoing evolution of legal standards in response to changing societal attitudes underscores the dynamic nature of the relationship between morality and law. from the case studies, it remains a matter of controversy to what extent the criminal law should, or does, prohibit immoral conduct on the ground of its immorality.65 nevertheless, judgment, and punishment remain deeply moral undertakings as they involve determining what is right and what is wrong.66 63 rodriguez v british columbia (attorney general) (supra). 64 carter v canada (attorney general) (supra). 65 ea martin, op cit, p 114. 66 ike oraegbunam & jnk chukwukelu, op cit, p 130. unachukwu: judicial attitude to igbo customary laws on the inheritance rights of women: beyond the present euphoria of judicial pronouncements page | 26 judicial attitude to igbo customary laws on the inheritance rights of women: beyond the present euphoria of judicial pronouncements* abstract much judicial and academic thought has gone into the subject matter of the right of women to inherit real property among the igbo people of nigeria. a lot of sentiments bothering on emotions have attended the discourse and the adjudicatory process culminating from cases on that subject. most of the sentiments seem to bother on the personalities and circumstances involved in the individual cases and the fact that the cases were coming at an era that feminism seems to have succeeded in affecting the perception of our immediate society to an extent that anything that seems to put a female at a disadvantage is seen as barbaric and anti-social. igbo customary laws bearing on the inheritance rights of women have come under unmitigated battering in courts in the most recent past. whether such scathing remarks are justifiable enough or not is of the essence of this work which is aimed at examining the laws concerning the inheritance rights of women with a view to ascertaining whether the customary law of the igbo people of nigeria on the subject matter deserves the invectives and odium frequently poured on it at each judicial determination. keywords: inheritance, customary law, repugnancy, family land, rights of women 1. introduction from the biblical account of the creation of man, we read that god created them male and female. the man and his wife from the beginning were made for different roles, the man first and then the woman to complement him. the man was obviously put in charge of the arrangement by god that was why the man was made accountable for whatsoever went wrong in that home1. however with the advent of western education and civilization, agitations began, first for the liberation of women, then for the equality of the man and woman. women advocacy groups and those that have sympathy for their message have succeeded in inundating the world with the message of feminism to an extent that institutions are today labeled as good or bad depending on their level of gender compliance. governments all over the world have come under strong criticism and even brought down for their failure to be gender sensitive. the agitations to accord women with equal rights as men came to a head at the world women conference held in beijing, china where the women reaffirmed what is today popularly referred to as ‘affirmative action’. by this declaration, women started and have consistently demanded that at least 35% of appointments into positions in government should be reserved for women to occupy. it is not arguable whether or not feminists and their sympathisers have succeeded. at least in nigeria, in spite of our ‘third world’ status, laws have in the recent past been tinkered with in favour of the equality of male and female persons2. particularly, section 42 of the constitution of the federal republic of nigeria, 1999 (as amended) has been raised as a bullwalk for the protection of the rights of the female gender in nigeria. section 42 of the constitution in that regards therefore has provided the yardstick for measuring the fairness, reasonableness and acceptability of the provisions and content of every legislation that may touch on the rights of women. however, an unforeseen and unfortunate trend seems to be emerging from the rampaging crusade of feminism. hitherto, the application of customary laws to nigerian societies had proceeded independently and without regards to the changing fortunes of the received english laws largely on account of the unwritten nature of customary laws and its ability to change with time as society evolves from one age to another. secondly, the fact that customary laws were attached to specific societies and remained acceptable as long as it was serving the interest of its host society had given it the quality of resilience which has helped customary laws to survive several years of civilization. in that regards it became very difficult to classify a customary law as good or bad outside the context of the society where it is applicable. there is therefore, every need to re-examine the attitude of the nigerian courts led by the supreme court of nigeria towards the igbo customary law on the right of women to inherit the landed property of a deceased husband or father with a view to finding justification or otherwise for the attacks that go out to the said customary laws on each occasion of judgment of court. in doing this, there is need to examine statutory enactments on the subject as against the contents of the igbo customary laws. much of the customary laws discussed herein are as they appeared from the judgments of the appellate courts in nigeria. *by stephen chuka unachukwu, llm, phd, bl, lecturer, department of public/private law, chukwuemeka odumegwu ojukwu university, igbariam campus. phone no. 08035550743. e-mail: stevechuka@gmail.comor sc.unachukwu@coou.edu.ng 1see the book of genesis chapters 1 and 2 2see particularly section 42 of the 1999 constitution of the federal republic of nigeria that provides for freedom from discrimination on grounds of sex, religion etc. mailto:stevechuka@gmail.comor mailto:sc.unachukwu@coou.edu.ng african customary and religious law review 1 (2020) page | 27 it must be stated at the outset of this discussion that igbo customary laws on the inheritance right of women are only applicable when an intestate husband was married to his wife under customary law. where the marriage between the deceased and his widow was done under the marriage act, succession to the estate of the deceased shall be governed by statute law. it is therefore up to the people entering customary law marriage to know what to expect in the event of their spouses dying intestate3. 2. some notable judicial decisions on the igbo customary law on the inheritance rights of women onyibor anekwe & anor v mrs. maria nweke4 the facts of this case which bothers on the repugnancy rule and the customary law of awka people of anambra state in respect of the inheritance right of women, briefly put are as follows: the respondent initially instituted this suit against the appellants before the customary court. however, it was subsequently transferred to the high court of anambra state, awka. the respondent claimed against the appellants jointly and severally, in the main, for a declaration of statutory right of occupancy to a piece or parcel of land which is situate at amikwo village, awka; injunction restraining the respondents, their servants and agents from further trespass to the said piece or parcel of land, and other reliefs. the appellants denied the respondent’s claim and also counterclaimed for a declaration of statutory right of occupancy over the same land in accordance with the native law and custom of awka people. the 2nd defendant who died in the course of the proceedings was substituted with the 1st appellant. it was common ground between the parties that the respondent’s husband, nweke nwogbo, was the younger and half brother of the appellant’s father, anekwe nwogbo. nweke nwogbo (the respondent deceased husband) and anekwe nwogbo (the appellant’s deceased father) were sons of nwogbo okonkwo eli who died outside the home town of the parties. obiora okonkwo eli was the senior brother (half brother) of nwogbo okonkwo eli, who did not have a compound of his own at awka at the time of his death. after the death of nwogbo okonkwo eli, his two widows who had a son each (the husband of the respondent and the father of the appellants) went with their sons to live with obiora okonkwo eli before they were eventually moved by obiora okonkwo eli into the compound now known as no. 19, ogbuagu lane, amikwo village, awka, part of which is now in dispute. the respondent contended that obiora okonkwo eli erected two separate bungalows on the subject property and shared them between the sons of nwogbo okonkwo eli (i.e. the appellants’ father and respondent’s husband) and that she, (the respondent) inherited the portion given to her husband upon his death. it was also the respondent’s case that after her husband died and was buried in their own house immediately before the civil war, she continued to live in the portion of land as was shared between her husband and the appellants’ father. the appellants’ father asked her to vacate her house on the ground that she had no male child in the house. the respondent, therefore, in the quest of asserting her right of inheritance, affirmatively contended on her claim that a woman according to the customs of awka people inherits the property of her husband, whether she has a male child or not; that in confirmation of the foregoing assertion, she conclusively relied on the final arbitration made by the ozo awka society on the matter, which she claimed was not controverted by the appellants. on the other hand, the appellants contended that the subject property in question was never partitioned and shared by obiora okonkwo eli for the sons of nwogbo okonkwo eli. rather that at the time obiora okonkwo eli moved them into the subject property, he only built a mud house therein and that it was their (appellant’s) father who (having inherited the compound as the first and only surviving son of nwogbo okonkwo eli) eventually erected two buildings on the land out of which he gave two rooms to the respondent to occupy as a tenant at will. it was also the appellants’ case that the subject land (now known as no. 19 ogbuagu lane amikwo village, awka) was the homestead of okonkwo eli and that by the native law and custom of awka people, the land was inherited by the appellants’ grandfather, nwogbo okonkwo eli and then by the appellants’ father, anekwe nwogbo, as the first and only surviving son of nwogbo okonkwo eli and upon the death of anekwe nwogbo, same had been inherited by the 1st appellant as the eldest son of the late aniekwe nwogbo. upon the conclusion of hearing, the trail court in its judgment on 13th march, 2008 found in favour of the respondent and granted her claims. it then dismissed the appellants’ counter-claim. dissatisfied, the appellants appealed to the court of appeal. the court of appeal in its judgment on 14th february, 2012 dismissed the appellants’ appeal and affirmed the judgment of the trial court. still dissatisfied, the appellants appealed to the supreme court. at the supreme court, the appeal turned on whether the respondent who has no male child could inherit the property of her late husband. it was held, unanimously dismissing the appeal that the custom of awka people of anambra state to the effect that a married woman without a male issue cannot inherit landed property 3 see joy ngozi ezilo: property war in the south-east: never again will igbo women be denied of their inheritance published at vanguardngr.com, 4/9/2016 visited on 4/8/2017 4 supra unachukwu: judicial attitude to igbo customary laws on the inheritance rights of women: beyond the present euphoria of judicial pronouncements page | 28 of her late husband, pleaded and relied upon by the appellants in the instant case, is barbaric and repugnant to natural justice, equity and good conscience and ought to be abolished5. per ogunbiyi, j.s.c i hasten to add at this point that the custom and practice of awka people upon which the appellants have relied for their counter claim is hereby out rightly condemned in very strong terms. in other words, a custom of this nature in the 21st century societal setting will only tend to depict the absence of the realities of human civilization. it is punitive, uncivilized and only intended to protect the selfish perpetuation of male dominance which is aimed at suppressing the right of the womenfolk in the given society. one would expect that the days of such obvious differential discrimination are over. any culture that disinherits a daughter from her father’s estate or wife from her husband’s property by reason of god-instituted gender differential should be punitively and decisively dealt with. the punishment should serve as a deterrent measure and ought to be meted out against the perpetrators of the culture and custom.(underlining mine for emphasis). for a widow of a man to be thrown out of her matrimonial home, where she had lived all her life with her late husband and children, by her late husband’s brothers on the ground that she had no male child, is indeed very barbaric, worrying and flesh skinning. it is indeed much more disturbing especially where the counsel representing such perpetrating clients, though learned, appears comfortable in identifying, endorsing and also approving of such a demeaning custom. in a similar circumstance as the case under consideration, this court in nzekwu vs. nzekwu (1989) 3 scnj page 167; (1989) 2 nwlr (pt. 104)373 held amongst others and ruled ‘that the plaintiff had the right of possession of her late husband’s property and no member of her husband’s family has the right to dispose of it or otherwise whilst one is still alive’. the impropriety of such a custom which militates against women particularly, widows who are denied their inheritance, deserves to be condemned as being repugnant to natural justice, equity and good conscience. the repulsive nature of the challenged custom is heightened further in the case at hand where the widow of the deceased is sought to be deprived of the very building where her late husband was buried. the condemnation of the appellants’ act is in the circumstance without any hesitation or apology6.’ per muhammed, j.s.c it baffles one to still find in a civilized society which cherishes equality between the sexes, a practice that disentitles a woman (wife in this matter) to inherit from her late husband’s estate, simply because she had no male child from the husband. this practice, i dare say, is a direct challenge to god the creator who bestows male children only; female children only (as in this matter), or an amalgam of both males and females, to whom he likes, he also has the sole power to make one a barren. there is nothing virtually one can do if one finds oneself in any of the situations. to perpetuate such a practice as is claimed in this matter will appear anachronistic, discriminatory and unprogressive. it offends the rule of natural justice, equity and good conscience. that practice must fade out and allow equity, equality, justice and fair play to reign in the society7. per ngwuta, j.s.c my noble lords, the custom pleaded herein, and is a similar custom in some communities wherein a widow is reduced to chattel and part of the husband’s estate constitutes, in my humble view, the height of man’s inhumanity to woman, his own mother, the mother of nations, the hand that rocks the cradle. the custom of awka people of anambra state pleaded and relied on by the appellant is barbaric and takes the awka community to the era of cave man. it is repugnant to natural justice, equity and good conscience and ought to be abolished8. 5see lewis v bankole (1908) 1 nlr 81; eleko v secretary, govt. of southern nigerian (1931) ac 662; dawodu v danmole (1962) 2 scnlr 215 6 at pages 421-422, paras f-e 7at page 423, paras, a-c 8at page 425, paras e-h african customary and religious law review 1 (2020) page | 29 per ariwoola, j.s.c as clearly shown in the pleadings exchanged by parties and the testimonies adduced at the trial, the respondent challenged the action of the appellants in attempting to disinherit her. perhaps it is necessary to state what the appellants shamelessly stated in their pleadings in defence to the respondent’s action before the trial court. the averments ready thus: paragraph-‘16. the defendants state that under awka native law and custom a married woman without a male issue cannot contest title to land of her later husband with the male member(s) of her late husband’s family. more so, when the defendant’s father inherited the present land in dispute and has before this time even further asserted ownership by planting economic trees thereon, to wit: coconut, banana, pears, orange, avocado etc. in the oral testimony, the appellants had stated that the reason why their custom forbids the respondent from entitlement to her matrimonial family was the fact that she ‘has six female children without a single male child’. by this, it meant that the said six female children of the respondent were denied their entitlement to inherit their father’s property simply because of their gender. there is no doubt, this custom pleaded and canvassed by the appellants against the respondent is to say the least, repugnant to natural justice, equity and good conscience. it is even barbaric. one wonders whether it was the respondent’s making what sex the pregnancy that her late husband made with her will come out with. indeed, such a custom that discriminates against female children is a challenge on god almighty who is the maker and producer of pregnancy will produce what type of sex male or female. it will therefore be inhuman and injustice to discriminate against a female child on her father’s property or a widow on the ground that she has only female children for her later husband9. the author had deliberately reproduced at length some of the pronouncements of the justices of the supreme court that sat on the instant appeal for the sake of emphasis as it pertains to the repugnancy of the native law and custom of awka people of anambra state in particular, concerning the right of widows to inherit the landed properties of their deceased husbands and the right of female children to inherit the landed properties of their fathers. this very question of law has attracted a lot of judicial comments before now and has always evoked emotions and emotional outburst whenever it arises and such was the case in this very appeal. the invectives poured on the customary law of awka people in this case, as in other cases on the subject matter before now, is understandable for the fact that cases bothering on affront on the right of widows and female children to inherit the deceased arose from human situations and are touching on the rights of existing human persons whom the perpetrators of the ‘obnoxious customs’ sought to put into great hardship and deprivations. however, there are some issues that may need to be put in proper perspective for a complete and proper appreciation of the content and scope of these customary laws. the limitations on the practicability and implementation of the law as created by the progressive and egalitarian decisions of the superior court lead by the supreme court of nigeria as it concerns customary laws of inheritance in many parts of igbo land ought to be xrayed. before we go into a discussion of the issues arising from these decisions, it would be good to put before us the facts and decisions in respect of few other cases in which the courts have descended heavily on igbo customary law of inheritance as being repugnant to natural justice, equity and good conscience. mojekwu vs. mojekwu10 the facts bothered on whether the appellant who was the plaintiff at the high court could inherit the property of okechukwu mojekwu (the deceased husband of the respondent who died without a male child having lost his only male child, patrick adina to the nigerian civil war) by virtue of the ‘oli-ekpe’ customary law of succession of nnewi people of anambra state. it was held, unanimously dismissing the appeal that: on whether ‘oli-ekpe’ customary law of succession is consistent with doctrine of equity. nigeria is an egalitarian society where the civilized sociology does not discriminate against women. however, there are customs all over which discriminate against the womenfolk which regard them as inferior to the menfolk. that should not be so as all human beings, male and female are born into a free world and are expected to participate freely without any inhibition on grounds of sex. thus, any form of societal discrimination on grounds of sex, apart from being unconstitutional is antithesis to a society built on the tenets of democracy. the ‘oli-ekpe’ custom, which permits the son of the brother of a deceased person to inherit his property to the exclusion of his female child is discriminatory and therefore inconsistent with the doctrine of equity. 9 per ariwoola, j.s.c, at pages 426-427, paras e-c 10(1997) 7 nwlr (pt. 512), pages 304-305, paras h-b unachukwu: judicial attitude to igbo customary laws on the inheritance rights of women: beyond the present euphoria of judicial pronouncements page | 30 per tobi, j.c.a (as he then was)11 we need not travel all the way to beijing to know that some of our customs, including the nnewi ‘oli-ekpe’ custom relied upon by the appellant are not consistent with our civilivised world in which we all live today, including the appellant. in my humble view, it is the monopoly of god to determine the sex of a baby and not the parents. although the scientific would disagrees with this divine truth. i believe that god, the creator of human being, is also the final authority of who should be male and female. accordingly, for a custom or customary law to discriminate against a particular sex is to say the least an affront on the almighty god himself. let nobody do such a thing. on my part, i have no difficulty in holding that the ‘oli-ekpe’ custom of nnewi, is repugnant to natural justice, equity and good conscience. a court of law, being a court of equity as well, cannot invoke a customary law which is repugnant to natural justice, equity and good conscience. the ‘oli-ekpe’ custom is one of such customs as it permits the son of the brother of a deceased person to inherit the property of the deceased to the exclusion of the deceased’s female child12. in ukeje vs. ukeje13 concerning the rights of a female child born out of wedlock to inherit from his biological father, the supreme court held that the right of such a child to inherit from his biological father is secured by section 42 (1) and (2) of the 1999 constitution which provides such a child with freedom from discrimination on account of her sex and the circumstances of her birth. on this occasion, the court found the igbo customary law on the right of a female child to inherit her father, which was on a collision course with section 42 (1) and (2) of the 1999 constitution to be null and void and of no effect after the said custom was also pummeled as being repugnant to natural justice, equity and good conscience. it is instructive to note that the decision in ukeje vs. ukeje14 has been hyped out of context in successive citations of the said judgment. ukeje vs ukeje was decided on the principle of law that a child born out of wedlock has got a right to inherit her father once there was an acknowledgment of paternity and did not focus on the right of a female child to inherit her father. whether the decision in ukeje vs. ukeje15 is sound and equitable should be weighed against the provisions of section 42 (1) and (2) of the 1999 constitution that dwells on equality of human persons and freedom from discrimination. to the extent of its conformity with the constitutional provision, ukeje vs. ukeje16 is a sound and equitable judgment. however, it is capable of being interpreted as an active encouragement to promiscuity and irresponsible parenthood which would finally affect the desirability and sacredness of the marriage institution which is the bedrock of family life. on the relationship of that judgment with the igbo customary law of inheritance as it pertains to family land, the situation of a female child born out of wedlock is not different or any better than that of other female children born in wedlock as has already been discussed elsewhere in this work. earlier, in nzekwu vs. nzekwu17, it was held in similar circumstances that: the onitsha native law and custom postulates that a married woman, on the death of her husband without a male issue, with the concurrence of her husband’s family may deal with the deceased’s property18. the widow’s dealings however must receive the consent of the family and she cannot by the effluxion of time, claim the property as her own. she has however a right to occupy the building or part of it, but this is subject to good behaviour19. a widow who chooses to remain in the husband’s house and in his name is entitled, in her own right and notwithstanding that she has no children to go on occupying the matrimonial home and to be given some share of his farmland for her cultivation and generally to maintenance by her husband’s family. nezianya and anor. vs. anthony okagbue (1963) 1 all nlr 352 at 356 referred to).20 should her husband’s family fail to maintain her, she can let part of the house to tenants and use the rent obtained thereby to maintain herself, but her interest in the house and farmland is merely possessory and not proprietary so that she cannot dispose of it out and out. (nezianya and anor. vs. anthony okagbue (1963) 1 all nlr 352 at 356 referred to).21any onitsha custom which postulates that an okpala has 11at page 305, paras b-c 12at page 305, paras d-e. 13 (2014) 11 nwlr (pt. 1418) 384 14 op cit, note 13 15 supra 16 supra 17 (1989) nwlr (pt. 104) 373 18nezianya & anor. v anthony okagbue [1963] 1 all n.l.r. 352 at 356 at page 394, para. c 19 nezianya and anor. v anthony okagbue (op.cit) at page 394, para d. 20at page 394, para e. 21at page 395, paras f-g. african customary and religious law review 1 (2020) page | 31 the right to alienate property of a deceased person in the lifetime of his widow is a barbarous and uncivilized custom which should be regarded as repugnant to equity and good conscience and therefore unacceptable. (nezianya and anor. vs. anthony okagbue (1963) 1 all nlr 352 at 356 referred to).22 3. the significances of the judicial decisions on women’s right of inheritance in igbo societies some issues considered as common and central to the cases mentioned above which all emanated from igbo societies and they include the following: 1. customs and customary laws are not set in the abstract; rather they are peculiar laws belonging to a people with their own history, cultural background and way of life. repugnancy, a white man’s (western) ideology was imported from a different society devoid of the peculiarities of the place whose customary law is standing trial. 2. repugnancy must be related to the peculiarities of such people including the enacted laws. otherwise a rush to declare a law as repugnant to natural justice, equity, good conscience etc. would have succeeded in creating a law whose implementation would be difficult. it should be noted that no custom, standing alone can be universally accepted as good or bad outside the context of where it was erected. a functional customary law should be targeted at curbing a particular mischief or promoting a cherished ideology. it is on the scale of the mischief sought to be targeted or the ideology sought to be promoted that a particular custom should be weighed. functionality therefore, should be the yardstick for the evaluation of customary laws. as a general rule a widow, under igbo customary law, is not entitled as of right to succeed to the personal or real estate of her deceased husband.23 4. can a widow acquire an absolute right of inheritance over her husband’s real estate under the igbo customary law? this question was answered by the supreme court in the case of nezianya vs. okagbue24. in that case, the land in dispute was situate at onitsha and all the parties were natives of onitsha also. on the death of the husband, his widow began letting his houses out to tenants. later on, she sold a portion of the land and with the proceeds she built two mud huts on another portion of the land. when she wanted to sell more of the lands, her late husband’s family objected. the only child she had from her husband was a girl who died before her. the widow devised the property to the late daughter’s child who now sued the husband’s family claiming a right to exclusive possession on the grounds that the widow, their grandmother had long adverse possession of the land. in the court of first instance, it was held that possession by a widow of her husband’s land cannot be adverse to the rights of her husband’s family to enable her to acquire an absolute right to possession of it against the family. the plaintiffs appealed. in the opinion of the supreme court, one of the important issues to be determined was whether under onitsha native law and custom, a wife of a deceased member of a family could become the owner of her late husband’s real estate by virtue of long possession of the property which she occupied with the knowledge of the family or by adverse possession. the court gave a negative answer to this question and observed that: it will appear that the essence of possession of the wife in such a case is that she occupies the property or deals with it as a recognised member of her husband’s family and not as a stranger; nor does she need the express consent or permission of the family to occupy the property so long as the family make no objection to her occupation … from the evidence … it is abundantly clear that a married woman after the death of her husband can never under native law and custom be a stranger to her deceased husband’s property; and she could not, at any time, acquire a distinct possession of her own to oust the family’s right of ownership over the property. the onitsha native law and custom postulates that a married woman, without a male issue, on the death of her husband, with the concurrence of her husband’s family, may deal with his (deceased) property. her dealings, of course, must receive the consent of the family. the consent, it would appear, may be actual or implied from the circumstances of the case, but she cannot assume ownership of the property or alienate it. she cannot, by effluxion of time, claim the property as her own. if the family does not give their consent, she cannot, it would appear, deal with the property. she has, however, a right to occupy the building or part of it, but this is subject to good behaviour. (ibid at pp. 356-567)25 22at page 396, paras b-c. 23e.i nwogugu; family law in nigeria, 3rd ed., heinemann educational books plc (ibadan) 1990 p. 407 24 1963 1 all nlr (ibid pp. 107: okoro op.cit. p. 124) followed in nzekwu v. nzekwu. (supra) where it was held among others that a widow’s dealings on the landed property of her late husband where she has no male child must receive the consent of the family and she cannot by the effluxion of time, claim the property as her own. she has however a right to occupy the building or part of it, but this is subject to good behaviour. 25as reported in e.i nwogugu; family law in nigeria, 3rd ed., heinemann educational books plc (ibadan) 1990 pp. 407-408 unachukwu: judicial attitude to igbo customary laws on the inheritance rights of women: beyond the present euphoria of judicial pronouncements page | 32 this statement of the law is true of most of other igbo speaking areas of nigeria to the extent that although a widow does not inherit her husband’s estate absolutely, she is entitled to some rights therein. first, she is entitled to live as a member of the family in her late husband’s house and the deceased’s heir has no power to dispose of the matrimonial home which is occupied by the widow. however, her right in this respect is subject to good conduct. 5. distinction between property acquired by the deceased with his money during his lifetime and land inherited as part of family property there is need to state that a distinction exists in practical terms between property purchased by the deceased with his money and property allotted to the deceased as his entitlement out of the family land. where a man acquires property with his money, there is usually not many disputes as to whether his wife or female children would inherit such property after his demise as more often than not, issues relating to the acquisition of such property, its location, title documents etc are within the knowledge of members of the immediate family of the deceased. it would be futile to make customary law to apply in such a situation because it can hardly be effectively applied. on the contrary, where the deceased was allotted part of the family property to build his homestead, if he dies without a male child, the land on which he lived would eventually return back to the family as part of the family property. the custom in such a situation in many parts of igbo land is that where the property accrued to the deceased from a general partition of the family property, upon the death of the deceased without succession, the property will fall for inheritance by the eldest closest male relative of the deceased (‘oli-ekpe’ or ‘ili-ekpe’ custom). however, the ‘oli-ekpe’ shall not be entitled to take the property until the widow of the deceased has lived her life in the house of the decease (her matrimonial home) and died or remarries. where the deceased begat female children, the property is not available for inheritance until the last of the female children of the deceased has got married. there are instances of extreme situations, where the widow of the deceased, desiring to perpetuate her husband’s lineage, would perform some customary rights called ‘nrachi’ in respect of one of her female children wherein the daughter is officially instituted in the family to procreate as if she was married into the family. in that case, children begotten by that daughter are the children of the deceased father of the daughter who are entitled to inherit the property of their deceased grandfather as if they were born to him directly. the property of the deceased in that situation is not available for the ‘oli-ekpe’ to take as the deceased has got succession.26 6. the position of the law in relation to family land the new lexicon webster’s dictionary of english language defines family as a group consisting of parents and their children; a group of people closely related by blood, example, children, their parents, their cousins, their aunts and uncles; a group consisting of individuals descendants from a common ancestry; a household. family land: therefore, family land is land vested in a group of persons closely related by blood or persons consisting of parents and their children. it can also be referred to as land which had vested upon individuals who had descended from a common ancestry or pedigree, and including, of course those such as domestics and strangers who have been incorporated into the family by the founder. at the death of the founder, all empty land, farm land and houses acquired by him in his life become family property. in plain language the land belongs to the family of the said founder as a corporate entity in which case they become inalienable, or they become liable to be distributed to the members of the founder’s family as defined by him during his lifetime or the customary law that governs inheritance of land in the very area in question. under this customary land holding arrangement, every member 26 though deprecated by the court, the effectiveness of this practicewas demonstrated in the case of muojekwu v. ejikeme (2000)5 nwlr (pt. 657)402, where the court of appeal declared the law to the effect that if any blood relation of the deceased (child or grandchild irrespective of the circumstances of his/her birth) is alive, it will be against equity, fair play and good conscience to allow the ‘oli-ekpe’ a distant stranger to inherit his property. in that case, the court descended on the ‘nrachi’ custom of nnewi people of anambra state in the following words: ‘nrachi’ ceremony enables a man to keep one of his daughters unmarried perpetually under his roof to raise issues, more especially males, to succeed him. with the custom performed on a daughter, she takes the position of a man in the father’s house. technically, she becomes a ‘man’. the custom legalizes fornication as the woman stays unmarried for the rest of her life procreating outside the bounds of marriage. a daughter with the custom performed on her has upper-hand over the others without it. she can inherit her father’s property while the others without same cannot. (see mojekwu v ejikeme (supra) pp. 418, para. f; 422, paras. e-f). per fabiyi, j.c.a. (as he then was) i must express the point hereby which i will continue to stand that human nature, in its most ‘exuberant prime and infinite telepathy’ cannot support the idea that a woman can take the place of a man and be procreating for her father via a mundane custom. she stays in the father’s house and cannot marry for the rest of her life even if she sees a honest man who loves her. i cannot, and do not believe that the society, as it is presently constituted, will for long acquiesce, in a conclusion so ludicrous, ridiculous, unrealistic and merciless more especially as we march on into the next millennium. african customary and religious law review 1 (2020) page | 33 of a family has an interest in the property and under a duty to protect such property. hence every member of the family has or enjoys a locus standi to institute an action in respect of any wrong to illegal dealings with the property and the right of action to protect the family property avails the individual member even if he has no authority of the family to bring the action. it is the law that family land does not lose its identity simply because it was allocated to a member of the family. family land remains family land at all times to the effect that where the allottee of family land fails in his succession, the land returns to the pool of family land waiting to be allocated to another member of the family that may need the land for habitation or other purposes. where there was no partition of family land but a part of the family land was simply given to a man to build his house, upon his demise without succession (a male child) the widow of the man remains in his house, lives her life until she dies or remarries. if she had got female children, the female children are allowed to remain in their fathers’ house until they are married. thereafter, the land reverts back to the family in general to become part of the family land. from the above, it could be seen that the land given to a member of the family from the family land is not for absolute ownership such as the land he bought with his money. in many communities, he cannot alienate the land given to him from the family land without the consent of the family even where there has been a general partition of the family land. this is unlike the property he acquired with his money which he can dispose of at any time. the reason for this restriction may be of twofold: 1. to discourage profligacy among members of a family, and avoid a situation where a member of a family becomes lazy, hoping to sell off the land given to him by the family as ‘ana-obu’ in the event of a slight financial challenge. 2. to avoid a situation where a member of a family sells part of a family land granted to him to a non member of the family, who comes in to set up a homestead in the midst of the family members and thereby erode the privacy. security and homogienity of the family as non members of the family begins to build houses and dwell in the midst of the family. it is for this later reason that when such a member of the family dies, the family does not allow the widow of the deceased and her female children to take over the property of the deceased on absolute terms since to allow them to do so would be to allow them to alienate the property eventually, possibly, to a stranger. 7. the realities and practicability of laws on women’s right of inheritance of landed property under the igbo customary law it is submitted, most humbly, that it is debatable whether or not a customary law that regulates dealings on family land in the manner explained above is barbaric or not. it depends on the perspective from which it is viewed. however, it is still a strong argument that no family or community would allow an absolute transfer of title in a part of family land from a man who dies without a male child to his wife or daughter for the fear of what will happen to the land eventually. no daughter is ever married back into her family of origin. if such a daughter acquires absolute right in her father’s compound, at her marriage she would either sell the property or transfer it to herself and her husband in a new name thereby introducing a stranger into a community or family that was otherwise hitherto homogeneous and would have loved to remain so. the fact that the man who died without succession may have been the head or ‘okpara’ of the family in which case he was the custodian of the sacred things of the family and was housing the family’s ‘iba’ (obi or meeting hall) would even make matters worse. where such was the case, all the sacred things of the family would have been passed on to a stranger who, more often than not would not have value or respect for them. there is no better way of eroding communal lifestyle and kindred spirit than that. in the light of the above, it is submitted, most humbly, that the issue of application of customary laws on inheritance of land given to a man that died without succession from family property should be approached with caution. except for cases of abuse of such customary laws by overzealous persons, seeking to disturb the widow and daughters of such a deceased person from enjoying the non permanent interest which they have in such land, there may be little or no justification for descending heavily on those customary laws in the manner the courts are presently doing27. from the practical point of view, beyond the euphoria of victory, full implementation of those judicial decisions may not be possible. where such a widow takes over her husband’s compound, she may not be able to sell it assuming she wants to, because the community may by a resolution stop its members from buying it and equally make it difficult for a stranger to buy same. in that case, the widow may have only enjoyed the same life interest the law originally gave her. such would equally be the case with the female children of such a deceased who may want to marry and leave their fathers’ house. in many instances, they may not find it convenient to come from their husbands’ house to manage their fathers’ compound after their marriage. in such a situation they would have only enjoyed the property before the marriage as envisaged by the said customary law. 27 the attitude of the supreme court in nezieanya v. okagbue (supra) and nzekwu vs. nzekwu (supra) is highly recommended as the proper approach to issues of inheritance of property of a man that dies without a male child by his widow. unachukwu: judicial attitude to igbo customary laws on the inheritance rights of women: beyond the present euphoria of judicial pronouncements page | 34 in the final analysis, it would seem that what is repugnant, barbaric, anachronistic etc. as pronounced by the courts are acts of overzealous ‘oli-ekpes’ who pounce on the property of their decease brother or uncle who died without a male child and begin to appropriate his landed property when the spouse is still alive and living on that property sometimes with her female children. such is an unbridled display of lack of conscience as was shown in the case of onyibor anekwe & anor. vs. mrs. maria nweke28 and ought to receive an unmitigated knock from heavily weighted judicial hammer29. statutory enactments to the rescue? in anambra state, there is an accommodation of both extremes in the anambra state succession law edict, 1987 now the succession law of anambra state, 1991 which deals with succession to real and personal estate upon intestacy. section 51 of the said law prescribes the following rules of distribution: a. if the intestate leaves a husband or wife but no children, parent or brothers or sisters of the whole blood, the residuary estate shall be held on trust for the surviving spouse absolutely. however, where the surviving spouse is the wife and the intestate leaves brother or sisters of half blood, the wife’s interest will be for her life or until she remarries whichever first occurs. thereafter, the residue of her interest shall go to the intestate’s brothers and sisters absolutely in equal shares. the children of a deceased brother or sister will take the share to which his parent would have been entitled if alive. b. where the intestate leaves a husband or wife as well as children’s children (whether or not he also leaves parents or brothers or children of brothers and sisters), the residuary estate shall be held on trust as to the value of one third thereof for the surviving spouse. the interest of such spouse shall be absolute in the case of a husband and in respect of a wife, for her life or until re-marriage which ever first occurs. the remainder of the estate together with any residue on the cesser of the wife’s interest shall be held on trust for the children in equal shares absolutely or failing children, on trust for the children of the intestate’s children in equal shares absolutely. c. if the intestate leaves a husband or wife as well as one or more of the following – a parent, a brother or sister of the whole blood or children of a brother or sister of the whole blood, but does not leave a child, two-thirds of the residuary estate shall be held on trust for the surviving spouse. in the case of a husband, the interest shall be absolute while for a wife, it will last for her life or until her re-marriage whichever first occurs. the remaining one-third of the estate together with any residue on cesser of the wife’s interest, shall be held on trust for the brothers of the whole blood in equal shares absolutely. in the absence of brothers of the whole blood or their children, the portion will be for the parents absolutely. it can be seen clearly that even the succession law of anambra state has vested on the widow of a deceased spouse who died with or without a child only a life interest in the property of the spouse or an interest before she remarries but not an absolute perpetual interest. that is the same position even under the ‘oli-ekpe’ custom that is much buffeted and maligned as repugnant to natural justice, equity and good conscience. the position of the widow who enjoys qualified inheritance in the nature of a life interest in the estate of her deceased husband is different from the position of the widower who inherits his deceased wife in absolute terms. it may be argued that even section 51 of the succession law of anambra state, 1991 may not stand in the face of section 42 (1) and (2) of the constitution of the federal republic of nigeria, 1999 (as amended) to the extent that the provisions of the succession law of anambra state seeks to segregate between deceased male and female spouses in the vesting of rights to inherit each other’s property. section 42 (1) and (2) of the constitution of the federal republic of nigeria, 1999 (as amended) provides: a citizen of nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person a. be subjected either expressly by, or in the practical application of, any law in force in nigeria or any executive or administration action of the government, to disabilities or restrictions to which citizens of nigeria of other communities, ethnic groups, places of origin, sex, religion or political opinions are not made subject; or b. be accorded either expressly by, or in the practical application of, any law in force in nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of nigeria of other communities, ethnic groups, places of origin, sex, religion or political opinions. 28op.cit note 4 29 see also the case of mojekwu vs. mojekwu (supra) followed in onyibor anekwe & anor. v mrs. maria nweke (supra) under review african customary and religious law review 1 (2020) page | 35 9. conclusion and recommendations from the judicial and academic point of view, the customary laws seen in igbo societies and even the succession law of anambra state, 1991, seem to offend the provisions of section 42 (1) and (2) of the 1999 constitution (as amended). the said laws are to the extent of their inconsistency with the `1991 constitution, null, void and of no effect whatsoever. however, from the point of view of practicability, the customary laws of igbo land would not have been otherwise. the said customary laws may be seen to be working hardship on the people on whom their incidences fall, it seems however that it wouldn’t have been otherwise. in the final analysis, it is submitted that the problems associated with abuses of the right of women to inherit the properties of their fathers or husbands in igbo land do not lie in the absence of sufficient legal framework to safeguard such rights. the problems lie with human weaknesses that manifest in greed, collusion with one another etc. the solution to these may lie in the vigilance and readiness of members of the society to rise up to defend the cause of justice whenever such situation arises. after all, how many of these cases do actually get to court? there is need for women’s rights advocacy groups to be more proactive in educating and enlightening women as to the consequences of marriage under customary law and their remedies when they have chosen such marriage as well as enlightening the society on the consequences of discrimination against the female child in matters of inheritance of property. also there should be public education on the consequences of possible collision between the provisions of customary law on inheritance of property by widows and female children and statutory enactments and case laws. finally, such groups are expected to go some steps further, as many of them are already doing30 to institute actions in court to stop such abuses, intimidation and harassment of women. there are situations where admonitions, entreaties and sermonisation may not be enough. on its part, the judiciary should be vigilant to know when overzealous relatives of a deceased intestate begins to oppress the deceased widow and her female children so as to exercise its discretion in their favour assuming such a case gets to court. that would certainly provide a more cushioning effect to such challenged persons than the name calling which has become the past time of our courts in respect of igbo customary laws on inheritance by widows and female children. regarding section 51 of the anambra state inheritance and succession law, 1991 (as amended), there is every need and it is recommended that the said law should be amended immediately to grant a deceased widow absolute right to inherit the property of her deceased husband irrespective of whether she had a child for the husband or not. to allow otherwise is to perpetuate and give statutory backing to the ignominious and much maligned ‘oliekpe’ custom. 30 the activities of f.i.d.a, wacol etc in this regards is commendable to the extent that they assist even indigent women who fall victim of such intimidation and harassment after the death of their spouse to take hold or reclaim the properties of their husbands. shemudara: gbàgàlà as a deity for investigation of crime among the ilaje and ijaw/apoi of ondo state, nigeria page | 26 gbàgàlà as a deity for investigation of crime among the ilaje and ijaw/apoi of ondo state, nigeria* abstract this paper introduces gbàgàlà a sacred divinity among the ilaje and apoi people of ondo state nigeria which has recorded few or no literature. it is a traditonal african mode of crime detection. the study design is ethnographic, analytical method of research was adopted while data for the study were obtained from structured interview with 7 indigenes of ilaje and apoi the sampled population area where the practice of gbàgàlà is prevalent and about seven cases successfully investigated by gbàgàlà were reported. gbagàlà performed the role of police in investigation of criminal offences, mysterious or strange occurrences like untimely death of a deceased. no doubt, it had worked in the past and presently still working. this paper therefore brings into lime light this sacred divinity as an investigation mechanism in the criminal justice system of ilaje and apoi people of ondo state nigeria. it showcases its swiftness, effectiveness and potency in investigation of criminal complaints among these people. integrating african mode of crime detection into the english criminal justice system of nigeria was recommended. keywords: investigation, gbàgàlà, sacred divinity, crime, offence, ilaje and apoi. 1. introduction crime detection formally known as crime investigation is an integral part of criminal justice system and as one of the functions of the police, body or organisation saddled with the responsibility of policing; it builds up public confidence and encourages respect for law and order. crime investigation when effective and properly done promotes peace and order in the society by unveiling any would-be criminal. crime investigation therefore, is the process by which the perpetrator of a crime is identified through the gathering of facts (or evidence)although it may also involve an assessment of whether a crime has been committed in the first place or not. among the yoruba of south west nigeria, divination is mainly the means of investigation. it is used for crime detection and to inquire about the future or for explanation on an issue which appears to be dicey, precarious, uncertain, unsafe, dangerous and unpredictable to them. divination could be through a medicine man normally called babalawo, ifa priest who will conduct the investigation through cowries, opelele while some use sand, water in a white calabash, kola and mirror. however, among the people of ilaje and apoi of ondo state, gbàgàlà is the main type of divination aside ifa invoked or used for investigation of criminal wrongs or offences when the offender is unkown or known but, denied. these two groups of people are also known and reported to be custodian of ayélála1 awolalu: 1981). the ilaje people were said to have left ile-ife, their original ancestral home in the 10th century. they later found themselves in the present day ondo state through migration. they mainly occupy the atlantic coast line of ondo state nigeria, a large hinterland of 1,318 kilometres square which is bounded by the ijebu people to the west, the ikale people to the north, the itsekiri to the east, the apoi and arogbo ijaw to the north east and the atlantic ocean on the southern part. the ilaje people are one of the enterprising nations in nigeria. their aquatic skill, couple with their ability to conquer their harsh geographical environment and turn it to their advantage is a plus for them. apart from petroleum which is found in the area, other mineral resources available in ilaje land include glass sand, salt, tar sand, quartz and clay2. on the other hand, the apoi people are known as western apoi of the ijaw people and they live in ondo state nigeria. the tribe (also called ijaw apoi) consists of nine settlements; igbobini; ojuala, ikpoke, inikorogha, oboro, sabomi, igbotu, kiribo and igbekebo3. the apoi inhabited higher ground than most *by olubusola tunde shemudara, phd, lecturer, adekunle ajasin university, akungba akoko, ondo state. email: shemudara@gmail.com, phone no: 07039458128. 1 jo awolalu, yoruba beliefs and sacrificial rites (longman group ltd. 1981) 41-45 2 ilaje – wikipedia. en.m.wikipedia.org. retrieved on the 10/12/2020. 3 ej, alagora, a history of the niger delta, nigeria (onyoma research publication, 1972) pp 1-19. mailto:shemudara@gmail.com acarelar 2 (2021) page | 27 of the other ijaw tribe4. they speak yorùbá language and are bounded to the north by the ikale, to the west by the ilaje yorùbá. the group also shares a boarder with the ijaw to the furugha ijaw to the east. the choice of these two groups is as a result of their uniqueness and differences in religion, beliefs, social life and customary laws which are almost different from other yorùbá south west of nigeria. again, these groups share or have certain things in common, they have similar socio-cultural belief, religious background and their customary laws are the same. they also worship similar deities and celebrate similar festivals. for instance, ayélála as a deity is common to both of them as it originated from them. they are the custodian of gbàgàlà the subject matter of this discourse though its origin in apoi. it has been observed that while ayélála has recorded literature gbàgàlà has not in spite of its effectiveness and prevalence among the people. it is on this note we are bringing gbàgàlà into a lime light as another means of crime detection among the apoi and ilaje people of ondo state, nigeria. 2. crime investigation under the english criminal justice system crime investigation is an integral part of policing under the english criminal justice system. the art of policing has always been an integral part of human life. right from the dawn of creation, the tendency has been rife for human beings to seek to protect what is theirs. the public has always had, nurtured and practiced a police idea, no matter how rudimentary. as long as people live in groups and communes, there was always the need to control and check the excesses and aggression of fellow humans. when personal control broke down, following which an individual deviant behavior endangered the society, a form of a community were responsible for their collective security. thus, all organised societies display a body of rules, norms or customs, tending to protect the security of individual interest, and at the same time, the survival of the group as a whole5. in nigeria for instance, there are so many organs, bodies or groups that are already put in place or set up to monitor or preserve social order and control same in order to have peace and order in the country. the officers, men and women of nigerian correctional service formerly known as nigerian prison service are in charge of convicted and nonconvicted inmates in their custody to ensure that they are transformed to become better and changed citizens of the country6. the custom officers are policing the coming in and out of goods in the country and also cross-border vices7. the national drugs law enforcement agency is called with the responsibility of policing the spread of narcotics and psychotropic drugs. now, having done with policing, the next is investigation which is one of the policing works of the police. although, the police are not the only one clothed with the power to investigate, private persons too investigate. however, without wasting too much time, it is pertinent to state that investigation in this paper is the one pertaining to crime investigation. crime investigation is an integral part of criminal justice system and as one of the functions of the police. it builds up public confidence and encourages respect for law and order. crime investigation when effectively and properly done promotes peace and order in the society by unveiling any would-be criminal. crime investigation is the process by which the perpetrator of a crime is identified through the gathering of facts (or evidence)although it may also involve an assessment of whether a crime has been committed in the first place or not. there are two basic approaches to managing crime investigation. in some areas typified by jurisdictions with a civil law tradition, the responsibility for an investigating criminal offences is given to a prosecutor or judicial officers, such as a juge d’’instruction or “investigating judge’’. where this is the case, investigators work under the instruction and management of the prosecutor and or investigating judge and, indeed, there may even be a special law enforcement agency designated as “judicial police’’. in the second approach, often found in jurisdictions with a common law tradition, investigations are conducted by the police more or less independently of prosecutors until the case, and the suspect are handed over for prosecution in the courts. there are however many variations within both basic systems. for example, in many common law jurisdictions, prosecutors work closely with police investigators for 4 western apoi tribe-wekipidia, en.m.wikipedia.org. retrieved on the 10/10/2020. 5 esc, ojukwu, discovering the police (gold press ibadan 2011) pp 69-73. 6 the nigerian correctional services bill was signed into law on the 14th august 2019 and repeals the prison act, cap p29, laws of federation of nigeria, 2004. see csa 2019 s 4 & 34. 7 customs & excise management act 2018 (cema) s 4, 8, 18-24. shemudara: gbàgàlà as a deity for investigation of crime among the ilaje and ijaw/apoi of ondo state, nigeria page | 28 at least some types of crimes no matter what the system is, basic tenets remain the same: identifying who committed the criminal act and gathering sufficient evidence to ensure a conviction. what constitutes an offence or crime can vary. many countries categorise minor offences, such as speeding or using public transport without a ticket, as misdemeanors, with either a separate code or portion of the code devoted to these offences. other countries consider these to be “administrative’’ in nature and they do not form part of the criminal code. such offences are not then subject to neither criminal investigation, nor do they fall within the competence of a prosecutor, but are dealt with inn lower level administrative tribunals. however, generally speaking, the definition of what constitutes a serious crime will be much the same, and recognisable, from country to country even though the specific detail may be different. for instance, the term ’’burglary’’ in one country may only refer to the entering of a building with an intention to steal. in others, the term may also include an intent to cause criminal damage or to commit rape, but the illegal act of entering of a premises with intent to commit a crime is common to all jurisdictions. a further issue that should be considered is that limitations in time for which a person may be charged with a crime may apply; this is sometimes called the ’’statute of limitations’’. in some countries, even some very serious offences may not be prosecuted once the limit set by law (i.e. the ’’limitation’’) has expired. in other countries, however, especially for serious crimes, there may be no time limit set by law at all; a person may be charged years after the commission of a crime, where new evidence may come to light8. whatever system of criminal investigation has developed or been adopted, there is a universal value that must be preserved in any criminal justice system; that their suspicions are based on an objective evaluation of the facts and that they have not twisted the facts to suit their suspicions to conduct criminal investigation effectively, an investigator will need considerable powers. these include the power to: detain a suspect, seize property as evidence, search for evidence, both in premises and on persons, interview suspects (and, in doing so, question their honesty and character which in some countries may otherwise be considered to be an act of defamation), require samples, such as fingerprints and dna, and to take photographs, run identification procedure, interview witness, including victims, ask members of the public questions, keep and maintain personal and confidential information, use technical and personal surveillance and use other intrusive means to observe persons, work undercover (i.e. pretend to be someone else) or use informants, protect and relocate witness, undertake otherwise illegal activity, such as possess illegal substances, carry weapons, force entry to property, or monitor illegal internet traffic. police and other officials may use a variety of methods to conducts criminal investigations; sometimes they work with their canine co-workers. they may also use various scientific techniques such as fingerprint and ballastics analysis. a controversial investigation sometimes employed in nigeria is the use of informants. many people disagree with this practice because of punishments. it is therefore argued that they can be influenced to say or do whatever will please those investigating the case. there are some parts of criminal investigations that the police may not be able to handle. some cases require investigative techniques that demand specialized knowledge or training that the investigators or their colleagues may not have. this is especially true with deoxyribonucleic acid (dna) testing, although this techniques is popular, it is often performed by third parties. a criminal investigation does not always yield results. sometimes suspects are accused only for it to be determined later that they are not guilty. at other times an extensive criminal investigation may not produce any suspect. this can mean that no one will be punished for the crime that was committed. 3. policing and investigation of criminal offences among the indigenous people it is part of human nature to keep their environment and themselves free from attacks or threat. while staying in common with nuclear and extended families with kith and kin, human beings have since 8 for instance defilement of a girl in nigeria must be tried within 2 months of the commission of the offence section 218 of the cc; eze .v the state (2019) lpelr-47984 ca, treasonable felony is 10 years, custom offences is 7 years. statute of limitation also applies to civil action like tort 6 years, actions against public officers acarelar 2 (2021) page | 29 learnt to be their brother’s keepers and ensure a crime free society. it is imperative for every one of us to keep a watch over one’s siblings and neighbors, and to be concerned, not just our spirit, soul and body but also about material blessing which god has endowed us with. as long as people live in groups and communes, there was always the need to control and check the excesses and aggression of fellow human beings9. it is also the desire of everyman to see that a culprit who commits an offence is brought to book at all time. as olaleye puts it, before the advent of civilization and its security system, the yorùbá method of security still persist. the yorùbá do not treat with levity issues that relate to security because they have realized that it is to this that the economic, political, social and religious lives of the people are anchored10. traditional nigeria societies guarded and guided their members through a system of indigenous law, customs and sanctions, mostly drawn from traditional beliefs, customs and norms. religion too also plays an activitive role since these customs and norms arose from it. these discouraged vices and mischief curry and gain the favour of the gods. shoremi also posits that the aim of religion is to fight with the divine powers to attain what the ancient romans called pax decorum, the favour of the gods11. the fear of the vengeance of the gods.oracles and ancestral spirits, kept everyone on one’s toes to be righteous. the yorùbá are religious in all things. religion forms the foundation and all-governing principle of life for man. the full responsibility of all the affairs of life including security belongs to the deity. the duty of men is to obey and do whatever the priests or diviners tell them to do. olodumare is the controller of all things12. oputa also commented: ‘our indigenous religion had that strong moral code and that supernatural sanction that were both able to keep the old village society morally clean and free from crime. then there was no police force, but rather it was supernatural sanction of their religion that policed the primordial nigeria village society’. 13 among the natives, in addition to the sanctions and deterrence imposed by religion, social norms, as a unit also played a vital role in policing the village society. this unit was made of general individual nuclear families knitted together by a bond of common ancestry and lineage. it provided check against any form of misbehavior. in this regard, the family head and lineage were set on toes of consciousness as to the kind of labeling negatively. the family head was strict and applied iron-hand on his family members. the sanctions meted out include ostracisation and slavery or threats of all. the village associations created a more complex and strong helping hand in preventing and detecting crimes. therefore, customs and norms play a prominent role in premordial native societies in areas of crime commission and security. in corroborating the position and role of customs and norms in security issues before the natives encounter with western civilization, tamuno stated14: ‘this mystical link between dead and living forces, both in the making and enforcement of african laws and customs, before contact with europeans is of crucial importance. the fear of breaking such laws and customs, involving dread punishment by unseen and allegedly powerful elements in traditional religion, provided an effective preventive factor’. shoremi while writing on important aspect of the social structure (association) has this to say: the process whereby a group of individuals interact to attain specific goals. it is formed a response to the particular needs of a community. in some cases, it may result from environmental presence; which forces men to cooperate with one another. generally, association provides the mechanism by which men relate to the environment around them15. the age-grade system was one of such association that has played a significant role in issues relating to security, crime prevention and management among the people of nigeria, even prior to colonisation. it involves stratification of the entire village into various classes on the basis age. for instance, among the 9 j ferguson cited by ea agboola, traditional religion in west africa (university press ibadan 1983) p9 10 sk olaleye,’ african indigenous knowledge as a cure to the security problem in the contemporary society’ [2013](5] proceedings of 2013 biennial international religious studies conference, 41-48. 11 mo shoremi, ‘indigenous association in nigeria’ cited in nigerian life and culture: a book of reading (ago – iwoye university press 1989) 219. 12 bolaji idowu, olodumare: god in yoruba belief (long man group ltd. london 1962) 5, 35-43. 13 ca oputa, ‘crime in the society’ [1975] lecture delivered in african indigenous law proceeding workshop by institute of african studies, nsukka, 1-2. 14 tn tamuno, crimes and society in pre-colonial nigeria (malthouse publishers lagos 1993) 129. 15 shoremi, op cit., p220 shemudara: gbàgàlà as a deity for investigation of crime among the ilaje and ijaw/apoi of ondo state, nigeria page | 30 yorùbá of lodo district (ѐkὶtὶ) and àkuré, the elègbè were responsible for law and order. this is the same with ìlàrì in oyọ and odi in ìjèbú, as well as the ẹmẹṣè in ilé-ifè. in the same manner, the ode (guild of hunters) in yorùbá land with their igbo counterparts called egbé liọba performed guard duties in the villages. masquerades and various cult groups also performed security sometimes) oppenheimer16. among the yorùbá people, it was observed that the age-grade were among the group that performed quasi-police functions in the various communities. inotu among the ishan people of uromi performed police duty. in the north among the fulani northern nigeria, they have the ‘dongari’. among the ἰlàjẹ, they have jongbe or wama. they also carried out investigation of crime however crudementary it may be and arrest the culprit in cases where it was considered needless to consult a diviner. from the statement and facts stated above, it is apparently clear that the idea of policing and investigation is not strange among the native before the advent of the english men. in other words, the maintenance of public order, the protection of persons, property and the prevention of injurious acts were not part of the legacies of colonisation, for as edward wislmot blyden said: the tribes have law regulating every function of human life and the laws are known to all members of the tribe and justice is administered by the tribal chiefs in the presence of the whole people in the village or town, where any violation of law may have taken place. the whole people of village or towns are jointly and generally guardian and preservers of the peace17. the social structure no doubt performs the duty of maintenance of peace and order and also where crimes are committed, aside the social structure, other means of investigation may also be invoked e.g. divination or ordeal. this is when recourse is being had to relio-magical influences particularly where the offender was unknown. now, coming back to the subjectmatter of this discourse, among the apoi and ilajẹ,. gbàgàlà is the basic means through which investigation of criminal offence is being carried out. they also use divination through medicine man but it is uncommon among them. gbàgàlà performed the role of police in the investigation of criminal offences. no doubt, it had worked in the past and presently still working. before the introduction of the english court and formal policing to the native of ilajẹ and apoi, gbàgàlà would investigate an offence and hand over the person to ayélàla which is common to both ijaw/apoi and ilajẹ where the offender has denied committing the alleged offence. 4. crime detection by gbàgàlà among the apoi and ìlàjẹ the apoi are known as western apoi ethnic group of the ijaw people while the ìlàjẹ occupies the atlantic coast line of ondo state, nigeria. the major way of investigation of criminal offences among these people was divination through gbàgàlà before the introduction of english legal system. in other words, gbàgàlà was the investigation and policing agent. the ìlàjẹ traced their origin to ile-ife as their ancestral home. the major deity for prosecution of criminal offences was ayélála. it is a common divinity to both apoi and ìlàjẹ. in fact ayélála emerged as a result of settlement of dispute between the apoi and ìlàjẹ. the headquarters of ayélála is at ita-ayélála along the atlantic ocean in the coast of ondo state. the ìlàjẹ and apoi both have ayélála in common as a deity they worship and serve. different tribes upon being convinced about the efficacy of ayélála had come in the past to borrow the deity and have it in their locality. some of these include akoko people from ondo state, edo people from edo state among others18. as we have stated, it is one of the duties of the formal police to investigate criminal offences, so also is the duty of gbàgàlà. gbàgàlà is a wooden like structure of four edges carried by four men holding each of the four edges. gbàgàlà is not only limited to investigating crime but also civil action or sooth 16 h. oppenheiman, the rationale of punishment (university of london press london 1913) p121 17 edward wilmot blyden, african life and customs ( african world press 1908) 18 akhilomen d, the resurgence of ayélála in benin kingdom. www.rig2011electionyoudie@rocketmail.com.posted by otedo news udate on september 25, 2009 at 3:46pm. retrieved on 13th december, 2020. http://www.rig2011electionyoudie@rocketmail.com.posted acarelar 2 (2021) page | 31 sayer about unseen problem. it is also used to investigate the cause of death of a deceased person when it is believed that the person has not died a natural death. complaints were normally lodged with the priest of gbàgàlà who would set gbàgàlà into motion by performing the required rites particularly when the offender was unknown. upon the invocation of the power, gbàgàlà would lead them to the house of the offender or where the stolen property was hidden. among these people, when the offender was unknown or the offender had been detected by gbàgàlà and still denied, recourse would be had on ayélála usually inform of trial by oath taking. the trial began with the open question of whether the suspect is guilty or not guilty? this is synonymous to taking of an accused person’s plea under the english legal system. these questions of guilty or not guilty are tantamount to an aspect of natural justice; audi alteram patem hear from the other side under the english legal system. in 1990 at ikoya in òkìtìpupa local government area of ondo state, gbàgàlà was used to investigate the ọba’s crowns that was stolen after the formal police had tried several days and could not get the offenders. gbàgàlà apprehended the person and the culprit was handed over to the police who formalised the arrest and prosecution. someitime in november 2017 in okitipupa, ondo state, a case of burglary was reported where along market street okitipupa a rice store was burgled and the thieves looted the shop. police tried everything within their ambit to apprehend the culprits or recover the stolen bags of rice but all their efforts were fruitless. recourse was had to gbàgàlà. gbàgàlà led them to where the bags of rice were hidden and also the respective houses of the culprits. they were all apprehended and handed over to the police, finally prosecuted. a respondent was also interviewed who said in 2013 in delta state in his office where he was serving as a divisional crime officer 2, he said the suspect was serving his boss and stole eight hundred thousand naira (n800, 000: 00) belonging to his boss. he said their office tried in vain and the complainant went to an ayélála priest at isoko. gbagala was involved in the investigation and it identified the suspect among all other persons arraigned for parade. still, the suspect denied stealing the eight hundred thousand naira (n800, 000:00) and recourse was had to ayélála. the priest according to the interviewee had not finished performing the rites to invoke the jurisdiction of ayélála when the suspect had started confessing that he gave the money to his mother. the mother was arrested by the police and they recovered the money from her. another interesting case reported on the effective investigation mechanism gbàgàlà was relayed by chief netufo oladele a gbagala priest aged 76 and resident of sabome in ese-odo local government area of ondo state. he said in 1983, in military barracks in the northern part of nigeria, he was invited by an apoi man a military personnel who was in charge of the armory in the barracks. some of the ammunitions, about five rifles were missing in the barracks. gbagala led them to where the rifles were buried in the barracks and identified the culprits among the personnel. this respondent also mentioned that he had successfully investigated so many cases of theft with the aid of gbàgàlà in 2008 chief bolodeoku segun an ayélála / gbagala priest and diviner said he has been in the practice for three decades and he inherited it from his father. the last prominent case he used gba ̀gàlà to investigate was a case of a stolen baby, a toddler of less than two years. the father had divorced the mother and baby yet to be weaned was with his mother in a village where the woman was working as a laborer for someone. the mother was in the farm doing her normal routine for the day and got carried away with the work, carelessly she did not know when the baby crawled away according to her statement to the police because the matter eventually got to police station at okitipupa. gbàgàlà detected that the father was actually the one who came to carry the baby. another case investigated by gbagala was the one garnered from an interview with chief omosua omopariola gbose (aged 59 years) residing at igbobini in ese-odo local government area of ondo state. the respondent said he inherited the knowledge of gbagala priesthood as a practice from his father, late high chief omopariola joel gbose (the peti of igbobini), who served as a gbagala priest for the apoi people for over six decades until his demise and his father also inherited it from his own father, that is the grandfather of the respondent. he stated that he witnessed so many cases treated by his father as a learner or apprentice or shrine boy and unlimited number of cases he himself had handled. he gave the few prominent ones that gathered the attention of the entire people of ilaje and apoi. according to the respondent, he said that there was a homicide matter at atijere in ilaje local government area of ondo state in which his father was invited as a gbagala priest to investigate the complaint. the police unit at atijere had failed hence the matter was transferred to the state headquarters (state c.i.d). the respondent being uneducated could not shemudara: gbàgàlà as a deity for investigation of crime among the ilaje and ijaw/apoi of ondo state, nigeria page | 32 remember the year but informed the researcher that it was the year olando owoh released his album, lamgbe jina and by my assessment, that was 1977. gbagala rites were performed at atijere to invoke its jurisdiction and gbagala identified the culprit one gbajimi, an ijebu man. the deceased was a woman. upon further inquiry from gbagala whether the man was the only one involved, gbagala also identified another man. gbajimi denied the criminal act while the other man admitted that he was there but never took part in the criminal act but as a palm wine tapper, he was on a palm tree watching gbajimi when he strangulated the woman and hid her inside the bush but remained mute. he said gbajimi was not the only person there and they might kill him. they asked gbajimi to produce his other cohorts he declined insisting that he knew nothing about the alleged offence. he was compelled to be tried by ayélála and since he knew the consequent fast justice of ayélála, he ran to akure on a petition against the respondent’s father and he was invited by the then commissioner of police who picked interest in the case. the respondent further stated that he went to akure with his father along with all the material necessary for invocation of gbagala jurisdiction. at akure, his father set in motion gbagala and the commissioner of police set up the first case for gbagala to investigate. according to the respondent, he said the commissioner of police placed three calabashes on a table and kept the cassette produce by olando owoh (lamgbe jina) in one of the three calabashes and asked his father to use gbagala to detect the one containing the cassette. gbagala identified the calabashes that had the cassette and he said his father took the cassette that gbagala had confiscated it. the commissioner of police not yet convinced set up another case for gbagala to investigate in his office. he kept the police radio phone in a drawer according to the respondent and assembled four police men before gbagala in his office to detect in whose possession the radiophone was. gbagala knocked the drawer and neglected the assembled police officers. it was further revealled that the commissioner of police still went on to keep wrist watch outside the police command and asked gbagala to locate it. the respondent said gbagala forced opened the commissioner’s office and its carriers out of the office. immediately, the commissioner called his father back that he was convinced and ordered the arrest of gbajimi for the purpose of prosecution. the case gave gbagala serious popularity that same year in the state according to the respondent and corroboration of same from other aged men and women in ilaje and apoi communities. the respondent said of recent in 2005, he personally carried out the gbagala rites investigation. according to him, in igbobini his home town there was a case of stolen money precisely four hundred and fifty thousand naira (n450, 000.00). the oba in the community directed that they should make announcement and nobody admitted taking the money. being a gbagala priest, he was invited to use gbagala to unveil the culprit. gbagala identified the culprit but he denied and when ayélála’s jurisdiction was to be invoked, he admitted taking the money and the money was recovered but he had spent about thirty thousand naira (n30, 000.00) out of it. so many cases had been successfully investigated by gba ̀gàlà. in fact, these reports show case the efficacy of gbàgàlà which had helped in the past to maintain peace and order among the people in the area. 5. limitations to gbàgàlà the development, civilisation and influx of people in our society today have in no doubt affected the consciousness of people about african jurisprudence. the intrusion of the english men in africa has prodigiously contributed to the factors withering away african beliefs and customs. the groups, apoi and ìlàjẹ, where gbàgàlà was being used for investigation could be considered as macro-communities compare to nowadays where we have towns and state that are already over populated; where automobile are used as their means of transportation. of course, gbàgàlà can be taken to lagos from ondo state for investigation since it would be arranged and the rites would be performed over there. this is similar to formal police officer who can travel too any part of the country. the only problem envisaged is where the culprit is not within and there is need for gbàgàlà to search for the person in the metropolitan society, movement of auto mobiles will not permit gbàgàlà to carryout same as the carriers can easily be crushed by automobile. gbàgàlà as an agent of investigation whose jurisdiction is invoked by religio-magical means cannot recognise automobile. another limitation is the existence of english courts. where somebody is arrested or identified by gbàgàlà such person may go to the english court to seek redress for either defamation or enforcement of fundamental human right since gbàgàlà is unknown to the english law. it is in view of this we are calling for the incorporation of traditional criminal justice system and the english criminal justice system presently operating in the country which can be achieved once there is legislation to validate and rubber stamp it. however, these limitations though not limited to these alone, cannot stand as a bar to the use of gbàgàlà in the modern society. with respect to automobiles, traffic warden may be placed on the road to direct traffic especially if this could be done during traditional festival of ẹ̀̀yò ̣̀ and eégún. acarelar 2 (2021) page | 33 6. conclusion without prejudice to the formal police and the modern modes of investigation, traditional means of investigations are devoid of all protocols, technicalities and failures. it is cost saving, effective, swift, expedient, and potent. gbàgàlà should be incorporated into the criminal justice system of nigeria. the conjunction and collaboration of the two criminal justice systems would create a striking balance in our criminal justice system more so, that the society we live is theocratic and dominated by africans who believe in their custom and tradition and are conscious of the efficacy of the societal norms, beliefs and sacred divinities of the land. gbàgàlà being carried after invocation of the power source: field work 8th december, 2020 shemudara: gbàgàlà as a deity for investigation of crime among the ilaje and ijaw/apoi of ondo state, nigeria page | 34 picture of the wooden structure called gbàgàlà source: field work 8th december, 2020 african customary and religious law review (acarelar) 3 (2022) 70 | p a g e legal framework for petroleum administration and taxation in nigeria: a legal appraisal of conflicting legislations* abstract the revenue from crude oil activities in the upstream sector are ordinarily taxed under petroleum profits tax (ppta) but for the enactment of the petroleum industry act ( p i a) which has now incorporated the use of companies income tax act in taxing petroleum operations. petroleum profit tax accounts for the major revenue earning for the federal government of nigeria, this makes it imperative for an effective administration and control of the sector by the federal government. recently a new regime for the petroleum administration, petroleum industry act, 2021, was introduced with an amendment of the petroleum act, 2004.the new act introduced host communities development trust fund, petroleum fiscal industry framework, hydrocarbon tax and others. most importantly, while amending petroleum act and incorporating some of the changes in taxation of the sector, they failed to realize the need to amend the legislation for the taxation of the industry which is the petroleum profit tax act. it does appear that the act while trying to address old problems ended up creating new ones. doctrinal method of data collection was used and analytical approach adopted in examining the research materials including statutes, judicial decisions, text books, journal articles and internet materials. it revealed that the language of the act is ambiguous and imprecise. it did not define the frontier basin to be distinct from host communities. fundamentally, the amendment made petroleum industry act estranged from the people and stakeholders in the oil and gas industry in nigeria. there is need for further amendment of the petroleum industry act to bring it inconformity with the other tax legislations: the petroleum profit tax act and the constitution. keywords: tax, petroleum, upstream, midstream, downstream, hydrocarbon tax 1. introduction crude oil was discovered in commercial quantity in nigeria at oloibiri in the present bayelsa state in the niger-delta of nigerian in 1956.1 but the history of oil production in nigeria dates back to 1908 when an affiliate of a german exploration company, the nigerian bitumen company, came to the present day ondo state to venture for bitumen (tarsand).2 at this discovery, the oil exploration in nigeria had to function within the ambit of the legal and policy framework that existed. there were a number of pre-independence laws3 regulating the oil exploration and production in nigeria; however, the most significant post independence law is the petroleum act 1969.4 the petroleum act repealed the existing legislation on oil and gas exploration and production in nigeria. the act with other legislations like the petroleum (drilling and production regulations) and other regulations made there under laid down the foundation of legal framework for the operations in the oil industry nigeria until the national assembly enacted petroleum industry act, 2021. nigeria earns about 80 percent of her gross domestic capital from the sale of petroleum products and different forms of petroleum taxes introduced by the government.5 apart from other laws regulating the commercial practices in the upstream sector of the oil and gas industry, the primary legislation to collect taxes upon profits made from the winning of petroleum is the petroleum profit tax act (ppta).6 this chapter discussed the introduction of hydrocarbon tax with conflicting provisions from the aforementioned ppta legislation with regards to tax revenue administration and collection in nigeria. 2. conceptual clarifications tax taxation spans over a gamut of human activity and is essentially aimed at providing the requisite revenue for the socioeconomic development of a nation. taxation7 is the composition or assessment of tax. it is the means by which the state obtains the revenue required for its activities. tax is a pecuniary burden laid upon individuals or persons or property to support the government which is exacted by a legislative authority.8 it is a compulsory monetary charge imposed by the government on persons, entities, transactions or property to yield public revenue9. in mathews v chicory marketing board,10 it is a compulsory exaction of money by a public authority for public purposes or the raising of money for the purpose of government by means of contribution from individual persons. it is a demand made by government of a country for a compulsory payment of money by the citizens of the country.11 whenever issues come up requiring a determination of whether a person either natural or artificial is liable to pay taxes, the court is duty bound to explore the relevant tax legislations and apply them accordingly.12 it *by kachidobelu john bielu, llb, llm, phd, bl, lecturer, faculty of law, nnamdi azikiwe university awka, anambra state, nigeria. tel: +2348037443753. e-mail: kachbielu@gmail.com; kj.bielu@unizik.edu.ng 1 mc ogwezzy. definition, history and sources of nigerian oil and gas law on oil and gas exploration and production in nigeria, mc ogwezzy (edited) (ikeja; princeton & associates publishing co. ltd, 2020) 17 2 f olanrewaju; the laws of oil pollution and environmental restoration: a comparative review (nigeria: olade publishers: 2010) 153 3 the petroleum ordinance 1889, mineral regulation (oil) ordinance, 1907, land and native rights proclamation of 19010, the mineral oils ordinance of 194, the mineral ordinance 1946, mineral oil amendment act, 1950 and oil amendment ordinance, 1958 4 petroleum act 1969, cap10 lfn 2004, now repealed by petroleum industry act, 2021. 5 petroleum industry act (pia), 2021, chapter 4, parts i, ii, iii, iv, v, vi,ss258-276 6 cap p13. lfn 2004 7 b a garner (ed) black’s law dictionary, 10th ed; (usa, thomson reuters st paul mn, 2014) 1688 8 i a ayua, nigerian tax law (ibadan: spectrum law publishing, 1996) 9 9 ba garner (ed) black’s law dictionary, op.cit. 10 (1938) 60 clr 263 at 276 11 cs ola, nigerian income tax law and practice (ibadan, macmillian pub, 1983)13. 12 best children int’l schools v firs (2019) 40 tlrn 33 bielu: legal framework for petroleum administration and taxation in nigeria: a legal appraisal of conflicting legislations 71 | p a g e is certain and well settled in our jurisprudence that taxation issues are not on all comers’ affairs or an arbitrary issue. no tax can be imposed on the subject without the word in an act of parliament clearly showing an intention to lay a burden on the subjects.13 agbonika14 stated that for there to be command for the payment of tax, the following features or characteristics must be visible; i. it must be compulsory levy ii. there must be a legislation backing the demand for such payment. iii. the levy must be certain and show a basis for calculating the payment. iv. payment must be for a public authority with tax jurisdiction known as the relevant tax authority. v. payment must be for the common good of all and not for any individual use. vi. there must be penalties for non-compliance with the law vii. payment could be in money or money’s worth such as goods or free labour. petroleum petroleum means hydrocarbons and associated substance as exist in its natural state in strata and includes crude and includes crude oil, natural gas, condensate and mixture of any of them but does not include bitumen and coal.15 crude oil16 is the petroleum which is in liquid conditions upon production from a reservoir either in its natural state or after the extraction of water, sand or other foreign substances from it, but before any such oil has been refined or otherwise treated, other than foreign substances from it, but before any such oil has been refined or otherwise treated, other than oil extracted by destructive distillation from coal, bituminous shale’s or other stratified deposits. on the other hand petroleum products mean materials derived from crude oil and natural gas processing such as ethane, propane, butanes, pentanes, liquefied petroleum gas, natural, gas liquids, asphalts, gasoline, diesel, gas oil, jet fuel, transportation fuels, fuel oils for heating and electricity generation and such other derivates. hydrocarbon tax the hydrocarbon tax applies to crude oil, field condensates and associated natural gas liquids and is subject to different licence charges which is 30% on converted pmls and ppls.17 the expenses must be wholly, reasonably, exclusively and necessarily incurred to be tax-deductible. however, a cost price ratio limit of 65% of gross revenue is imposed for hydrocarbon tax deduction purposes, any excess cost incurred may be carried forward.18 host communities development trust fund the operators in the sector are mandated to incorporate host communities’ development trust for the benefit of the communities for which the settlor is responsible.19 the act by this societal change mandates that a company which secures an oil prospecting licence or mining lease or an operating company on behalf of joint venture to contribute a portion of its expenses to the host community’s development trust fund. the objective is to foster sustainable prosperity within host communities and for socioeconomic benefits and harmonious co-existence. it provides that 75% of available cash will be used for capital projects, 20% for reserves and 5% for administrative expense.20 3. ownership and control of petroleum nigeria has exclusive rights to all mineral resources reposed under its territory including mineral oil.21 the property and ownership of petroleum within nigeria and its territorial water, continental shelf and exclusive economic zone is vested in the government of the federation of nigeria.22 the federal government of nigeria therefore grants licences such as petroleum exploration licence to qualified applicants to carryout petroleum operations and petroleum prospecting licence to drill exploration and appraisal of wells and do corresponding test production on a non-exclusives basis.23 in attorney general of the federation v attorney-general abia state,24 the issue before the supreme court was for the determination of the seaward boundary of a littoral states within the federal republic of nigeria for the purpose of calculating the amount of revenue accruing to the federation account directly from any natural resources derived from the state pursuant to section 162(2) of the constitution of the federal republic of nigeria 1999. the apex court held inter alia that none of the littoral states is sovereign despite the historical narration by some of them. the states are part and parcel of the sovereign independent nigeria. the implication is that none of them can exercise any control claim that revenue accruing from mineral resources offshore belong to any of them. in line with the statutory and judiciary authorities, no state government, local government or any group of 13 a authority v regional tax board (1970) all nlr 177, scottish widows plc & ors v commissioner for her majesty revenue and customs (scotland) ors (2011) lpelr-17822 (uk) and vodacom business nig ltd v firs (2018) 35 tlrn 01 at 18. 14 jam agbonika & jaa agbonika, understanding of abc of taxation the nigerian perspective in ja m agbonika et al (ed) tropical issues on nigerian tax laws and related areas, vol 2. ababa press ltd, (2018) p2. 15 pia, 2021, chapter 5, section 318 16 ibid 17 pia, chapter 3, s 260. 18 ibid, s. 263. 19 ibid, s. 235. 20 ibid, s. 244 21 constitution of the federal republics of nigeria (cfrn) 1991 as amended, second schedule part 1, exclusive legislative ;list, item 39 22 pia, 2021, chapter 1, parts 1, s.1 23 ibid, chapter2, part 11, s.70 (i) (a-b) 24 (no 2) (2))2) fwlr (pt. 102)1 african customary and religious law review (acarelar) 3 (2022) 72 | p a g e persons other than federal government can exercise any sovereign right, claim, control or ownership over oil and gas resources within, upon or underlying all lands, sea bed and sub-oil including lands under the territorial waters of nigeria or that forms part of the continental shelf or exclusive economic zone of nigeria.25 4. licences granted by the federal government the petroleum industry act26 provides for three (3) classes of oil licenses and leases that could be granted by the commission27 to an applicant. in nwadioro & 2 ors v shell petroleum development company of nigeria ltd,28 the court held that under then petroleum decree no 51 it empowers the minister or government to grant the licence. the act29 provides that there shall be the following licences and lease under the act related to upstream petroleum operations: (a) petroleum exploration licence, which may be granted to qualified applicants to carry out petroleum exploration operations on a nonexclusive basis; (b) petroleum prospective licence, which may be granted to qualified applicants to: (i) drill exploration and appraisal wells and do corresponding test production on an exclusive basis, and (ii) carry out petroleum exploration operations on a non-exclusive basis and (c) petroleum mining lease, which may be granted applicants to: (i) win, work, carry-away and dispose of crude oil, condensates and natural gas on an exclusive basis. (ii) drill exploration and appraisal wells and carryout the related test production on an exclusive basis and (iii) carryout petroleum exploration operations on a non-exclusive basis note that the act30 provides that a licence or lease may only be granted to a company incorporated and validly existing in nigeria under the companies and allied matters act. petroleum exploration licence (pel)31 a petroleum exploration licence is granted to a company to explore for petroleum on a non-exclusive basis of the right to carryout exploration operations. the licence shall be for three years and may be renewable for additional period of three years subject to fulfillment of prescribed conditions.32 petroleum prospecting license (ppl)33 the holder of a petroleum prospecting license shall, subject to the fulfillment of obligations imposed by the act shall have exclusive right to drill explorations and appraisal well within the area provided for in the licence. the holder may carry away and dispose of petroleum won during prospecting operations subject to the fulfillment of obligations imposed upon him by or under this act. petroleum mining lease (pml)34 this is granted only to the holder of an oil prospecting licence who has satisfied all the conditions imposed on the license or otherwise imposed on him for instance a daily production of not less than 10, 000 barrels. 5. establishment of incorporated joint venture i) the nigerian national petroleum company limited (nnpc ltd)35 and other parties to joint operating agreements in respect of upstream petroleum operations, may on a voluntary basis restructure their joint operating agreement as joint venture carried out by way of a limited liability company (ijvc) with a view to, among other things36 (a) agreeing and executing a shareholder’s agreement in respect of the applicable ijvc (b) agreeing to the provisions of the memorandum and articles of association of the applicable ijvc. following the incorporation of an ijvc; (a) it can carry out upstream, midstream and downstream petroleum operations subject to the appropriate fiscal regime as specified in this act, provided, however, that where the parties wish to enter into more than none stream of operations, the parties shall incorporate separate companies under the act (b) it shall be deemed to be the sole licence or lessee (as applicable) of each petroleum prospecting licence or 25 exclusive economic zone is defined in article 53 of the united nation as conventions on the law of the sea, 1982 as an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this part, under which the right and jurisdiction of the coastal state and the rights and freedom of other states are governed by relevant provisions of the convention. the zone shall not extend beyond 200 nautical miles from the baselines from which the breath of the territorial’s seas is measured. 26 pia, 2021, ibid, s.70 27 ibid, 2.318, commission means the nigerian upstream petroleum regulatory commission established under the act 28 nogc 1 (1961-1995)205 29 pia, 2021, ibid, s.70 (i) (a-c) 30 ibid, s.70 (2),. however, this is subject to the overriding power of the minister of petroleum in section 3 (1) (g-h). note however, that the implication of the use of may is that where a non-nigeria company meets up with the terms and conditions it could be granted 31 ibid, s 71 (1) 32 ibid, s 71 930 33 ibid, s 72 (1) 34 ibid, s. 81 (1) 35 ibd, s. 65 (i) the proposed ijvc structure shall be an independent entity, having a strong commercial orientation and transportation company operation for the ijvc shareholders with clear rules for accountability. 36 pia, 2021, second schedule, paragraph 1,2,3, & 4 bielu: legal framework for petroleum administration and taxation in nigeria: a legal appraisal of conflicting legislations 73 | p a g e petroleum mining lease held jointly under the applicable existing joint operating agreement immediately prior to its incorporation. production sharing contract production sharing contract is any agreement for the exploration, development and production of petroleum on terms under which the financial risk-bearing party shall recover costs and receives a share of the profits based on a share of production as established in the contract from the applicable area. nnpc limited is vested with the concessionaire of all production sharing contracts (pcs), profit sharing and risk service contracts as the national oil company on behalf of the federation in line with its competencies.37 under this arrangement, nnpc limited remains the owner of the mineral right (concession) and enters into a contract with a foreign technical partners designated contractors as held esso exploration and production nigeria ltd & nor v firs.38 the contractor bears all the risks and when oil is discovered in commercial quantity, they recover their cost and share profit on a predetermined ratio with nnpc. the royalty payable under this arrangement is as follows; 201 500mters water depth . . .12% 501 800 meters depth . . . .8% 801 1000 meters depth . . . .4% beyond 1000 meters water depth . . . 0% at the inland basin water depth . .10% 6. petroleum profit tax the petroleum profit tax act39 provides a legal framework for the understanding of the nigeria petroleum tax regime. it is only the profit of the upstream activities, that is, operations involved in all the activities carried out in the oil exploration, drilling, extraction, development, production, transportation and sale of crude oil that is chargeable to tax.40 the profit of the other two categories of companies involved in the industry, that is, the downstream and midstream sectors are charged under the companies income tax act, 2007. apart from the petroleum profit tax act, there are other various contractual agreements, memorandum of understanding and others that provide information on the incentives made available by the federal government to the operators in the oil and gas sector. these include: a. associated gas fiscal arrangement (agfa) 1992 which was later reviewed in 1997, 1998and 19999, b. production sharing contract (psc) of 1993. this deals with the exploration and production in deep offshore territorial waters in nigeria. c. memorandum of understanding (muo) of 2000. noteworthy, is the introduction of hydrocarbon tax41 in the petroleum industry act, 2021 which is applicable and levied upon the profits of companies engaged in the upstream petroleum operations in the onshore, shallow water and deep offshore, payable during each accounting period. 6.1 administration of petroleum profit tax taxation of petroleum profit which started since 1959 and the enactment has further been amended and the objectives of which as stated in the preamble is to impose a tax upon profits from winning of petroleum in nigeria, to provide for the assessment and collection thereof and for purposes connected therewith. the board42 was established in the act,43 the federal inland revenue service (firs) is vested with the power to administer, manage, charging and collection of petroleum profit tax. the federal inland revenue service is statutorily responsible for the assessment and collection of taxes in the oil and gas sector of the economy. the powers and duties of the service are spelt out subject to other provisions of the act,44 thus; i. the due administration of the act, the care and management of the tax. ii. power to acquire, hold and dispose property taken as security for or in satisfaction of any tax or any judgment debt due in respect of any tax iii. may sue and be sued in its official name and subject to any express provisions under any subsidiary legislation or otherwise, the board may authorize any person to accept service of any document to be sent, served upon or delivered to the board. iv. the service may by notice in the federal gazette call for any information, return or documents required to be supplied to such other person whether within or outside nigeria. 37 ibid, s. 64 (b) 38 (2012) 8 tlrn 45 39 (ppta) cap p13 lfn 2004 40 ppt, lfn 2004, s.8 41 pia, 2021, s.260, however, subject to section 262 of the act, the crude oil revenue of the company shall be the value of any chargeable oil adjusted to the measuring points based on the proceeds of the chargeable oil sold by the company and the value of all chargeable oil disposed of by the company. 42 formerly., federal board of inland revenue of inland revenue (fbir) but now; federal inland revenue service (firs) see, section 259 of the petroleum industry act 2021 and section 1 of the federal inland revenue service (establishment) act, 2007 43 ppta act, lfn 2004, s.3, however see the provisions of section 259 of the pia, 2021. 44 ibid, s.3 (1) (a-l) again, pia, 2021, s.259 provides that the functions of the service shall include assessment and collection of hydrocarbon tax and enforcement of the provisions of the act, companies income tax and tertiary education fund as it relates of petroleum operations. african customary and religious law review (acarelar) 3 (2022) 74 | p a g e v. by notice in the federal gazette or in writing authorize any person within or outside nigeria to perform certain functions on behalf of the service.45 vi. the powers and duties assigned to the service are however subject to the authority, direction and control of the minister. the proviso is that he shall not give any directive, order or instruction to the service to raise an additional assessment upon such company or to increase or decrease any assessment made or to be made or any penalty imposed or to be imposed upon or any relief given or to be given to or to defer the collection of any tax, penalty or judgment debt due by such company or which would have the effect of altering the normal course of any proceedings, whether civil or criminal, relating either to the recovery of any tax or penalty or any offence relating to tax. vii. receive every claim, objection, appeal, representation or the like made by any person under any provision of the act or any subsidiary legislation made there under, shall be made in accordance with such act and legislation and by virtue of the act,46 an act required to be done by the service in relation to its powers and duties may be signified under the hand of the chairman of the board or any officer of the service authorized by the service. there is an imposition of an oath of secrecy on any person involved in the administration of the act.47 but this duty of secrecy may be waived with an authorization of the minister or for the purpose of the act or other law relating to income in force in nigeria. note that subsection 3 further excludes any such document or information from being tendered or communicated in court in any proceedings other than for the purpose of carrying out the provisions of the act or to institute prosecution. the power to make rules generally for the carrying out of the provisions of the act is vested in the minister while the service is empowered to specify the form of returns, claims, statements and notices to be used under the act.48 service of notice is to be effected at the registered office of the company to be served in the case of companies registered in nigeria and on the individual authorized to accept service in the address filed with the registrar-general (now the corporate affairs commission)49 or the registered office of the company wherever it may be in the case of a company registered outside nigeria. 7. charge to tax taxation of petroleum profits is levied under the act50 as follows; there shall be levied upon the profits of each accounting period of any company engaged in petroleum operations during that period, a tax to be charged, assessed and payable in accordance with the provisions of this act. note the tax is levied on the profits of a company engaged in petroleum operations as opposed to individuals who are not permitted to go into petroleum operations.51 petroleum operations pursuant to the act means the winning or obtaining and transportation of petroleum or chargeable oil in nigeria by or on behalf of a company for its own account by any drilling, mining, extracting or any other like operations or process, not including refining at a refinery, in the course of a business carried on by the company engaged in such operations and al operations incidental thereto and any sale of or disposal of chargeable oil by or on behalf of the company. but in shell v fbir,52 the supreme court wrongly gave the meaning of petroleum operations to include operations incidental to the carrying out of petroleum operations thus; a close examination of the definition of the words petroleum operations in section 2 would show that the specific words therein are not limited to drilling, mining, extracting or other like operations but include in addition the phrase or process, not including refining at a refinery, in the course of a business carried on by a company engaged in such operations. in my view there is no distinct genus in the definition for the phrase and all operations incidental thereto to allow the rule of ejusdem generis to apply. in the above, the supreme court left the restrictive definition of the word petroleum by the act and expanded the meaning of the word to include the activities of companies not chargeable under the act. the definition activates activities such as refining of crude oil, marketing, solid minerals, solid field services and others to be subject to petroleum profit tax. the decision is contrary to the position of law as the court failed to make a distinction between the activities subject to companies’ income tax act and petroleum profit tax. 8. ascertainment of profits, adjusted profits, assessable profits and chargeable profits the profit of a period of a company shall be taken to be the aggregate of53: (i) the proceeds of sale of all chargeable oil sold by the company in that period. 45 any claim against the action of the service shall not be on the ground that it is contrary to the direction, order or instruction given by the minister 46 ppta, 2014, s.4 (1-4) 47 ibid, s.5. the secrecy affects dealing with documents, information, returns, assessment lists and copies of such lists relation to income and chargeable profits. 48 ibid, s 6 (1 & (2) 49 ibid, s7 (3). the corporate affairs commission established under the companies and allied matters act 1990 is now the successor of the registrar of companies. 50 51 ibid, s.24. this prohibits any person (other than a company) to engaged in petroleum operation either as a person or in partnership with any other person for the purpose of sharing the profit arising thereto 52 3 all ntc 315 at 345; tilimanans & co v ss knithsford limited (1908)2 kb 385 at 403; (1908) ac 207. 53 ibid, s.9 (1) (a-c) bielu: legal framework for petroleum administration and taxation in nigeria: a legal appraisal of conflicting legislations 75 | p a g e (ii) the value of all chargeable oil disposed of by the company in that period; and54 (iii) all income of the company of that period incidental to and arising from any one or more of its petroleum operations 8.1 assessable profit tax the assessable profits for each company or petroleum mining lease for any accounting period shall be the amount of the adjusted profit of that period after the deduction of the amount of any loss incurred by that company during any previous accounting period.55 the assessable tax for any accounting period of a company shall be an amount equal to 85% of its chargeable profits of that period,56 but for new oil fields before production; the tax rate is 65.75%. under the production sharing contract for deep offshore, it is 50%. this is summed up by omoregbe57 thus: ‘… the nominal petroleum profits tax rate as specified under the act is 85%. for new fields the rate is 65.75 before production and 85% after production has commenced. for production sharing contracts in respect of shallow water concessions the tax rate is 65.75%. for the first five years before production, after production the rate of 85% applies…’this is the profit of an accounting period after the deduction of the adjusted profit of that period allowed under the act.58 the deductions allowed under section 20(2) & (4) of the act. the deductions allowed on subsection 2 are the aggregate amount of all allowances due to the company for the accounting year under the provisions of the second schedule. they are; i. petroleum investment allowance. these qualifying expenditures allowed a company in an accounting period in respect of an asset used wholly and exclusively by the company in petroleum operations. the deduction allowance is in respect of the accounting year in which the asset is first used. ii. annual allowance: this is qualifying expenditure allowed a company in an accounting period in respect of an asset used wholly and exclusively for petroleum operations, whether or not an initial allowance maybe due to it. if the accounting period is less than a year, the allowance for the period shall be proportionately reduced. iii. balancing allowance: this qualifying expenditure allowed a company in an accounting period in respect of an asset, which immediately prior to its disposal, was wholly and exclusively used for petroleum operations. the allowable deduction is the excess of the residue of that expenditure over the value of the asset at the date of its disposal. the chargeable tax computed under subsection 3 of this section shall be split between the nigerian national petroleum corporation and the crude oil producing company in accordance with the production of the percentage of profit of split. the deduction allowed under subsection (4) is a sum equal to 85 percent of the assessable profits of the accounting period, less 170 percent of the total amount of the deductions allowed under the act59 for the period. the limitation imposed here is to ensure that the amount of tax chargeable on the company for the accounting period shall not be less than 15 percent of the tax which would be chargeable on the company for the period, where no deductions allowed under section 20 of the act for that period.60 subsection 5 requires that where the total amount of the allowances computed pursuant to subsection (2) cannot be deducted for reasons of insufficiency of assessable profits or no assessable profits or the limitation imposed y subsection (4). the total amount or part thereof that has not been deducted shall be added to the aggregate amount or part thereof that has not been deducted shall be added to the aggregate amount of allowances due to the company under the second schedule for the subsequent accounting period and shall be deemed to be allowances due to the company for the said subsequent accounting period.61 in determining the adjusted profits of the company in any accounting period, no deductions shall be allowed in respect of: i. disbursement or expenses not wholly and exclusively incurred in regard to petroleum operations. ii. capital withdrawn or any sum employed or intended to be employed as capital; iii. capital employed in improvements distinct from repairs. iv. sums recoverable under an insurance or contract of indemnity; v. rent or cost of repairs to any premises not engaged for the purposed of petroleum operations. vi. amounts incurred in respect of any income tax, profits tax or other similar tax whether charged within nigeria or elsewhere. vii. depreciation of any premises, buildings, structure, works of a permanent nature, plant, machinery or fixture; 54note that this include the value of that oil as determined, for the purpose of royalty, in accordance with the provisions of any enactment applicable thereto and any financial agreement or arrangement between the federal government of nigeria and the company and others. 55 pia, 2021, s. 265(i) 56 ppta, 2004, s.21(i) 57 t. omoregbe, oil and gas law in nigeria (lagos, malthouse law books publishers, 2001) 70. however, section 22 of ppta provides: i. a crude oil producing company which executed a production sharing contract with nigerian national petroleum corporation in 1993 shall throughout the duration of the production sharing contract be entitled to claim an investment tax credit allowance as an offset against tax in accordance with the provisions of the production sharing contract. ii. in computing the tax payable, the investment tax credit shall be applicable in full to petroleum operations in the contract area such that the chargeable tax is the amount of the assessable tax less the investment tax credit. 58 ibid, ss. 9(4) and 20. section 20(1) ppta defines the chargeable profits of an accounting period of a company as the amount of assessable profits of that period after the deduction of any amount to be allowed in accordance with the provisions of the section. 59 ibid s, 17 60 ibid s. 20(3) 61 i 0 okauru (ed) a comprehensive tax history of nigeria (ibadan safari books ltd, 2012) 228. african customary and religious law review (acarelar) 3 (2022) 76 | p a g e viii. payments to any provident fund, savings, widows and orphans, society, scheme or fund except as allowed under another provisions.62 ix. any customs duty on goods (including articles or any other thing) imported by the company either for resale or personal; consumption of employed of the company, or where goofs of the same quality to those so imported are produced in nigeria and are available at the time of the imported good were ordered by the company for sale to the public at prices less or equivalent to the cost to the company of the imported goods; x. any expenditure for the purchase of information relating to the existence and extent of petroleum deposits. this is calculated as the amount of assessable tax less the certain tax offset.63 in computing the tax payable, the investment tax credit shall be applicable in full to petroleum operations in the contract such that chargeable tax is the amount of assessable tax less the investment credit.64 the investment tax credit rate for a company operating under production service contract with the nigeria national petroleum corporation (nnpc) limited is 50% flat rate for the contract area, regardless of the duration of the contract.65 the investment tax credit allowance shall be offset against the chargeable tax in accordance with the provisions of the production sharing contract. 8.2 adjusted profits adjusted profits of an accounting period are the profits of that period after the deductions of allowable expenditure66 and any adjustments necessary to exclude the profits or loss attributable to the transportation for chargeable oil,67 which is assessable under companies income tax act. this profit is made for the period after deductions allowed and adjustments made in line with the provisions of the act.68 the deductions allowed under section 10(i) of the act are; a. any rent (other than rents included in the definition of royalties) incurred by the company for that period in respect of land or building occupied for its petroleum operations or compensation incurred for disturbance of surface rights or any like disturbance under an oil prospecting licence or oil mining lease; b. sums incurred by way of interest upon money borrowed by the company where the interest was a payable on capital employed in carrying out petroleum operations;(however such sums would not be allowed as deductions if either company has interest in the other company; or both companies have interests in a third company directly or by proxy or both companies are subsidiaries of one mother company). c. any expense incurred for the repair of premises, plant, machinery or fixture employed for the purpose of carrying on petroleum operations of for the renewal, repair or alteration of any implement, utensils or articles so employed d. debts directly incurred to the company and proved to the satisfaction of the board to have become bad or doubtful within the accounting period which shall not exceed the portion of debt proved to have become doubtful debt were due and payable prior to the commencement of the accounting period. again, expenditure in connection with geological and geo-physical surveys inclusive of the drilling of the first two appraisals wells in a particular filed including expenditure on cement and casing and well fixture and any other expenditure including intangible drilling costs in connection with drilling and appraisal or development. any contributions to pension, provident or other society, scheme or fund and duties, custom and exercise duties, stamp duties, education tax, tax or any other rate, fee or other like charges.69 bank charges and scholarships are ordinarily not deductible as allowable expenses, except where the charges arise or were imposed by the federal government in the course of the company’s operation relating to the petroleum operation, such charges will be allowed once they are incidental to petroleum operations. the decision is shell petroleum, development company (nig) ltd v fbir70 that the scholarship expenses incurred by a company will qualify as allowable expenses under section 10(i) of the act which was followed in gulf oil company (nigeria) ltd firs71 is with respect wrong in law 8.3 chargeable profit the chargeable profit of any company for any accounting period shall be the amount of the assessable profits of that period after the deduction of any amount to be allowed in accordance with the provisions of the act.72 it is the amount of assessable profit of the accounting period after the deduction allowed in section 20 of the act. it is the amount assessable profit of the accounting period less the sum total of capital allowances provided in the second schedule to the act.73 it is the amount to be allowed as a deduction under subsection (i) in respect of the said allowances shall be the aggregate amount computed under subsection (2) and the sum equal to 85% of the assessable profits of the accounting period less 17% of the total amount of the deduction allowed as petroleum investment allowance computed under the second schedule to this act for that period; whichever is the less.74 62 ibid s. 10 (i) (k) 63 ibid s.22 64 ibid, s.22(3) 65 ibid s.22(2) 66ibid, s.9(3) 67 ibid, s 14 68 ibid, ss. 10 &14 69 ibid, s. 10 (i) (a)-(i) 70 (1996) 8 nwlr (pt 466) 256 71 (2012) 7 tlrn 163. in firs v spdc (nig) ltd (2018) 19 tlrn 13 and firs v mobile prod. nig unltd (2018) 37 tlrn 01 the court held that such charges or fees are not deductible. 72 pia, 2021, s.266(1) 73 ppta, lfn 2004, s. 20(2) 74 ibid, s. 20(4) bielu: legal framework for petroleum administration and taxation in nigeria: a legal appraisal of conflicting legislations 77 | p a g e 9. deductions in computing the adjusted profits of a company of any accounting period from its petroleum operations, there shall be deducted all outgoings and expenses wholly, exclusively and necessarily incurred whether within or outside nigeria and necessarily incurred whether within or outside nigeria for the purposed of those operations during that period.75 the outgoings and expenses include rents in respect of land or building occupied under an oil prospecting and oil mining lease for disturbance of the surface rights or another likes as compensation paid in respect of damages to crops, houses and interference for easement. all non-productive rents, the liability for which was incurred by the company during the period are inclusive. royalties for liability for which was incurred in respect of natural gas sold and delivered to nnpc limited or sold to any other buyer or customer or disposed in any commercial manner and other royalties in respect of machineries, equipment and goods used by the company in petroleum operations, sums incurred by way of interest upon money borrowed and interest payable on capital employed or interest on any inter-company loans obtained under terms prevailing in the open market that is in london interbank offer rate by companies that engage in crude oil production operations. expenses incurred for repair of premises, plant machinery or fixture employed for the purpose of petroleum operations or renewal, repair or alteration of any implement, utensils or articles so employed. debts directly incurred and proved to the satisfaction on the board, however there is a proviso.76 in shell petroleum development company of nigeria ltd v fbir,77 spdc submitted its returns for the period 1st january to 31st december 1993 to the federal board of inland revenue, showing the tax liability which the company was payable to it. fbir disallowed four expenses claimed as deductible items in the returns filed by spdc on the ground that such expenses were not deductible in computing chargeable tax. the four items were; a. exchange losses on payment of petroleum profits tax b. central bank commission for payment of petroleum profit tax c. scholarship expenses and d. gifts and donation shell, however, at the hearing abandoned the fourth item on gifts and donations. the appeal was dismissed by the body of appeal commissioners and on further appeal to the federal high court, the appeal was allowed with respect to exchange losses on payment of petroleum profits tax and central bank commission. both parties appealed to the court of appeal which dismissed shell’s appeal and allowed the appeal by fbir. at the supreme court, the appeal of shell company was allowed. the apex court held that exchange losses are incidental for shell to pay debt for the purpose of petroleum operations which could not have been incurred but for the agreement between shell and federal government. another reasoning of the court is that the payment of bank charges was on the directive and further the creation of scholarship expenses was a statutory obligation to be observed by shell and was therefore incidental and deductible. by the decision, the apex court exhibited with respect lack of understanding of the sui generis nature of tax statutes. the court followed and relied on the administrative directive of a government agency which the court likened to a debt to that agency under the provisions of the act78 despite the dictum of belgore cj in gulf oil company of nigeria ltd v fbir,79 which highlighted a long line of decision on the same interpretation, thus; … i have no doubt in my mind as to the meaning of the subsection. it may be unique or general in taxation legislation but it is clear, meaningful and unambiguous. under the provision deduction allowed in the harrod (buenos aires) case (ie harrods (buenos aires) ltd v taylor-gooby (h.m inspector of taxes) (1961-64) 41tc 50 will not be allowed supposing one chooses or one is asked to post one’s tax assessment to the tax authority the expenses of postage village to a government treasury in order to pay one’s tax, such expenses incurred by travelling would not be allowed under subsection (i) (f) of section 11… the court in constructing the provisions of the petroleum profit tax act refused to apply a literal rule of interpretation given to a revenue statute, that is, applying the ordinary meaning of the phrase “petroleum operations but resorted to an interpretation anchored on the principle of equity.80 in partigton v ag,81 lord cain, stated inter alia;… in other words, if there be admissible, in any statute, what is called an equitable construction such a construction is not admissible in a taxing statute, where you can simply adhere to the words of the statute. again, the decision did not appreciate the rule that judicial reasoning has always leaned on the side of calculating tax liability in the currency of the country of assessment as established in payne v the deputy commissioner of taxation.82 by the decision and later statutory provision83 the nigerian national currency was sacrificed at the altar of convenience notwithstanding that a country’s currency is an index of its sovereignty. 75 ibid, s.10(1) 76 the deductions shall not exceed that portion of the debt which is proved to have become doubtful during the period. again, amount deducted previously in respect of bad or doubtful debts shall for the purposes of subsection (1) (c) of section a be treated as income 77 (1996) 8 nwlr (pt.466) 256 78 ibid, s.41 79 suit no fhe/l/3a/83(unreported) judgment delivered on 30th january 1985 80 cape brandy syndicate v irc (1921) 12 tc 358, which stated that one has to look merely at which is clearly state. there is no room for adopting principle of equity. there is no presumption and noting is to be read in, implied but a fair consideration of the language used. 81 (1869) lr 4hl100 82 (1936) 2 all er 793 83 ppta, lfn,2004, s.40(1) (2) african customary and religious law review (acarelar) 3 (2022) 78 | p a g e 10. deductions not allowed the act84 provides that no company shall be allowed to deduct disbursements or expense not being money wholly and exclusively laid without or expended or any liability not being a liability wholly or exclusively incurred for the purpose of those operations, capital withdraw or sum employed or intended to be employed as such in improvement distinct from repairs will be disallowed. an amount incurred in respect of any income tax, profit tax or other similar tax whether charged within nigeria or elsewhere. 11. allowances under petroleum profit tax capital allowance allowances accrued to companies engaged in petroleum operation. acquisition of right in or over petroleum deposits searching for and discovery and testing of petroleum deposits and winning access to it of the construction for any work or building s which are likely to be of little or no value when the petroleum operations for which they were constructed ceased to be carried on. the items that qualify as capital allowance are qualifying plant expenditure building expenditure and qualifying drilling expenditure.85 the capital allowance is claimed within five years; 20 percent the first years, 20 percent, 2nd, 20 percent, 20 percent and 19 percent in the fifth year. petroleum investment allowance (pia) this is grated in the first years as a qualifying capital expenditure incurred during petroleum operations. in the calculation of pia, onshore operations is 5percent, offshore up to and including 100 meters above continental shelves is 10 percent, offshore operations between 100-200 meters is 15 percent and offshore operations beyond 200 meters is 20 percent.86 there is annual allowance and balancing allowance just like capital allowance, the rate is at 20 percent for the first four years and the fifth year is 19 percent. the balancing allowance occurs when the sales proceeds of the assets used in petroleum operations is less than the tax was written down the value of the qualifying capital expenditure as at the time of disposal. the proviso is that the assets must be used for petroleum operations when the qualifying expenditure was incurred.87 note that excess on the value at the date of disposal, over the residue of the expenditure at that date shall be treated as an income of the company for that accounting period and as such taxable.88 investment tax allowance/tax credit the incentives are available to a company where a crude oil producing company executes a production sharing contract with the nigerian national petroleum corporation. incentives for utilization of associated gas89 the following incentives shall apply to a company engaged in the utilization of associated gas, that is investment required to separate crude oil and gas from the reservoir into usable products shall be considered as part of the oil field development.90 capital investment on facilities to deliver associated gas in usable form at utilization or designated custody transfer points is treated for tax purposes as part of capital investments for oil development. note that oil industry should stop enjoying pioneer reliefs 50 years after investment. this will held nigerian government to deal with the excesses in the sector. 12. chargeable tax chargeable tax is the amount of assessable tax after the investment tax credit is deducted. in computing the tax payable, the investment tax credit shall be applicable in full to petroleum operations in the contract area such that the chargeable tax is the amount of the assessable tax less the investment tax credit which is at the 50 percent flat rate. 13. assessment and collection of petroleum profit tax tax rates the petroleum profit tax act91 provides tax rate in the petroleum industry. the assessable tax is levied on the profits of petroleum companies at the rate of 85% for exported crude oil, 65.75% under the domestic sale and under the production sharing contract for deep offshore. furthermore, companies holding oil concession and start oil production on or after 1st of april 1977 shall pay at 65.75% until their production costs are fully amortized less the 19% residual book retention, when the company shall be taxed at the rate of 85%.92 84 ibid, s. 13 (1) 85 ibid, schedule; para 1(1) 86 ibid, second schedule, table 11 87 ibid, paragraph 8 88 ibid paragraph 9 89 ibid, s.11 90 ibid, s.11 (1) (a), 22(2)-(5) 91 ibid, s.21(1) 92 ibid s.21(2) and second schedule, paragraph 6(2) bielu: legal framework for petroleum administration and taxation in nigeria: a legal appraisal of conflicting legislations 79 | p a g e assessment of tax the assessment of the liability of every company for every accounting period shall be as soon as due or after the expiration of the tithe allowed for delivery of accounts and particulars.93 where a company delivers returns, the board may accept and make an assessment accordingly or refuse to accept the same and proceed to estimate the amount of the tax to be paid based on best of its judgment.94 this is otherwise referred to as original assessment where the board will rely on the returns filed and assess the company. on the other hand, where the board discovers that the returns are incorrect or incomplete, the board will assess the company based on their estimation, best of judgment. again, the board could come up with an additional assessment when the board discovers that the company had been under assessed or have not be assessed within 6 years after the expiration of that accounting period. in mobil oil nigeria ltd v fbir,95 the supreme court adopted the interpretation of lord denning mr for the word discovered in an english case of parking v cattle.96 in gulf oil company (nig) ltd v fbir,97 wherein the respondent raises an additional assessment on the appellant for the years 1974,1975,1976 and 1977 totaling #3,250,804.91. the appellant contended that the additional assessment in respect of 1974 and 1975 raised in 1982 were statute barred. although the respondent, fbir argued that the negotiations between the appellant ad the respondent did affect the time limit, the federal high court allowed the appeal stating that the commissioners were therefore wrong. this was adopted by the court of appeal. assessment could also be amended where eh tax payer assessed has objected to an assessment made upon him agreeing with the board as to the amount of tax liable to be assessed, the assessment shall be amended accordingly and notice of the tax payable served on the tax payer.98 this is a situation where the company objects to the original assessment in writing and sent to the board within 21 days or any other period allowed by the act, from date of service of such original assessment.99where a company engaged in petroleum operation fails to agree with the board on the amount of tax, the board can revise the assessment and service the notice to the taxpayer.100 any assessment made, amended, revised or determined on a valid objection or appeal shall be final and conclusive assessment.101 14. enforcement of petroleum profit tax by the provisions of the federal inland revenue (establishment) act,102 the service is permitted to co-opt the assistance of law enforcement agencies in the enforcement of the tax due and levy distraint. this is where the companies did not conduct self assessment and did not file returns and firs undertakes the necessary assessment and after same being final and conclusive upon service of demand notice.103 in distraining with an order of court, the properties collected shall be kept for 14 days, if the tax debt is not settled the firs will sale them. on the other hand, a company aggrieved by an assessment made on him may appeal against the tax appeal tribunal within 30 days of service of notice on him.104 the decision of tat is to be registered with the federal high court through the chief registrar.105 by paragraph 17, of the fifth schedule to the federal inland revenue (establishment) act, 2007, further appeal from the decision of tat lies with the federal high court on a point of law. a notice with that regard shall be made within 30 days and the secretary shall immediately compile the record and transmit same to the registrar of the federal high court. further appeals go to the court of appeal and supreme court.106 15. penalty for non-payment of tax any installment of tax due and payable but not paid within the appropriate time limit,107 the penalty shall be the sum equal to five percent of the amount of the installment of tax due and payable shall be added thereto. where the notice is served and not paid within one month from the date of the service of the demand notice, an enforcement of the payment is commenced. tax due but unpaid within one month as prescribed the company shall be guilty of an offence,108 with a fine n10,000.00. where in the course of its adjudication, the tribunal discovers evidence of possible criminality; the tribunal will pass the information to the appropriate criminal prosecuting authority. the duty of prosecuting will be passed unto the attorney-general of the federation or the attorney-general of any state of the federation or other relevant law enforcement agency.109 the general provision of the act,110 is that any person found guilty of an offence against the act or rule included under the act for which no other penalty is specifically provided, shall be liable to a fine of n10,000 and an additional sum of n2,000 for each day of default or six months imprisonment. the offences include; i. engaging in joint or partnership in petroleum operations with a view to submit the profit.111 93 ibid, ss.20 & 35, firs act, s.68 & first schedule to the act 94 ibid, s30,31,32,33,34, and 35 pptas 95 suit no sc/488/75 96 (1971) tr 77 97 (1997) 3 all ntc 485 98 ppta, 2004, s.38(5) 99 however, see federal inland revenue (establishment) act 207, s.68(2) 100 ppta, 2004, op cot s.38 (6) 101 ibid, s.43(1) 102 firs(e) act 2007, s. 36(1) 103 ibid, s. 3291) (d) 104 ibid, s 38(6) 1. paragraph 13(2) of fifth schedule of firs act 105 ibid, 5th schedule, paragraph 16(2) 106 ibid, s.42(4) 107 ppta, 2004, s.46 but see also ss 41 and 45 108 ibid, s.46(2) 109 firs (e) act 2007, 5th schedule paragraph 12 110 ppta, 2004, s.51 111 ibid, s.24(1) african customary and religious law review (acarelar) 3 (2022) 80 | p a g e ii. failure to submit returns.112 iii. failure to deliver accounts, particulars or information or to keep records required. iv. failure to comply with the requirements of a notice served on him. v. failure to comply with the requirement for accounts for profits and losses.113 vi. failure to attend in answers or summons served on him or fails to answer any question lawfully put to him. vii. failure to keep sufficient records114 the offence of making a false statement or false representation or forgery, fraudulently, lends in any form of aid, assist, and counseling, inciting or inducing any other person to make or deliver false return or statement, keep or preparing any false return or statement and refusal or neglected to pay tax. this is liable to a fine of n1,000 and triple the amount of tax for which the person assessable is liable for imprisonment or six months or both. again, any person who withheld tax deducted or did not deduct at all is guilty of an offence and liable to a fine and liable to a fine of 200% of tax withheld or not remitted and interest at the prevailing commercial rate.115 however, the offence by authorized or unauthorized person, that is, a. demands in excess of an assessment b. withholds a portion of tax collected c. enters false returns of the amount collected d. defrauds any person, embezzles or use his position to deal wrongfully with enter the board or individual. e. not being authorized collected or attempts to collect tax in all, the offender found guilty shall be liable to a fine of n600 or to imprisonment for three years or both. 16. recovery of tax and commencement of suit the suit for the recovery of tax shall be maintained in a court of competent jurisdiction and in the official name of the board. the official name of the board is federal inland revenue service (firs).116 17. repayment of tax claim for repayment of any tax overpaid shall be made in writing within six years next after the end of the accounting period to which it relates.117 the board may dispute the claim and issue notice of refusal to admit the claim,118 where the board accepts or under any order of a competent jurisdiction, a certificate to that amount shall be given. the account general of the federation shall upon the receipt of the certificate cause the repayment to be made. 18. conclusion and recommendations the passage of the long awaited act is a major win for the petroleum industry as a whole and the country as a whole. it will help to attract foreign investment in the sector. the petroleum industry act represents an effort to revamp the oil sector. it set out standards for the management the foremost nigeria’s natural resources. it made the upstream sector a commercially and profit oriented business, the economic and social development of the host communities. the duty introduced is help protect oil assets in the communities from vandalism. note that it introduced 3% contribution to host communities development trust fund and 30% profit to nnpc ltd for the frontier basin. the pia introduced a hydrocarbon tax without necessary amending petroleum profit tax act. this tax applies to crude oil, condensates and natural gas liquids produced from associated gas operations. it is charged and assessed on profits from crude oil on such operations in each accounting period at the stated rates for new acreages and converted acreages respectively. while commending the effort to fast-track the turnaround in the petroleum sector, there is need to avoid creating more problems while attempting to solve another. it is recommended that the following be addressed: the existence of two laws of pia and ppta will create more confusion; one should be made to repeal the other. for instance, sections 260 to 301of pia conflicts with the ppta provisions. under the petroleum industry act, there are a lot of challenges of interpretation and imprecision that calls for amendment. for instance, there is the creation of 3percent levy for the host communities whereas there exists, niger delta development levy. there should be either the aggregation of those levies or scraping of one. the provision of 3 percent contribution for the host community but 30 percent for the frontier basin is not fair. the introduction of the new hydrocarbon tax will lead to an unnecessary tension in the country as the amount that will be accruing to the revenue pool; the federation account will be low. this will also call for constitutional amendment. 112 ibid, s.33(1) 113 ibid, s. 30 & 52 (1) (b) 114 ibid s.29 115 ibid, s.54 116 firs (e) act, 2007, s.48 and 59 117 ppta, 2004, s.50(1) 118 opara, umeh, umeh & samson-umeh: female genital mutilation as species of gender-based violence: a case study of aboh mbaise local government area of imo state, nigeria 21 female genital mutilation as species of gender-based violence: a case study of aboh mbaise local government area of imo state, nigeria* abstract there is no gain reemphasizing the fact that all human beings, both male and female are born equal. yet, it seems this position is not well accepted in some geographical locations as there exist till date, some cultural practices that tend to undermine the protection and enforcement of women’s human rights copiously enshrined in numerous human rights legislations. one of such practices is what is known as and called female genital mutilations.1fgm is a cultural practice firmly embraced by most african societies and some third world countries which has no known medical relevance. it is not only a clear manifestation of gender based violence, but an act calculated to demean the women folk. this view is further buttressed by the fact that under the native laws and customs of nigerian societies, including aboh mbaise people of imo state, women are mythological conceptualized as being inferior to men and as such, subjugated under the men’s folk. this paper carefully xrayed the practice of fgm among the female population of an igbo clan of aboh mbaise. it also x-rayed the dangers associated with this practice. adequate and appropriate recommendations were made on how to eliminate this gender based violence called female genital mutilation (fgm). keywords: aboh mbaise, female genital mutilation, gender based violence, human rights legislations, practices, protection, women 1. introduction it is a well known fact that it is globally accepted that human rights are rights accorded to all humans by virtue of their birth as human beings. this is so, not minding the sex, colour, origin, status, etce tera of these humans. on the other hand, it is a notorious fact that there exist in most societies, discriminations/discriminatory practices, social stratification, prejudices and injustices which are ordinarily baseless, unfounded and highly unjustifiable, yet are still observed and regarded as proper and ethical in these societies. it is not out of place to state that these unwholesome practices obviously evolved from the historical, political, economic or religious experiences of these societies.2 for instance, in the africa’s most populated country known as and called nigeria, there exists the practice of fgm which is a practice hinged on the socio-cultural perception of women as being inferior to men.3 it is therefore common practice to retrieve from the women folk, all qualities, rights and privileges they are naturally endowed with just to ensure that they are properly subjugated to men’s rule and domination. another reasoning behind this move is that if women are not divested of these rights culturally perceived as capable of placing them at par with men or even above men, they will definitely grow to wield more powers and influence capable of scuttling the authorities and headship inherent in the male dominated nigerian societies. it is not in doubt that this misconceived perception gave birth to the idea of fgm. this surgical procedure is not only forcefully performed on women with or without their consent and authority; women are most often forced or coerced to comply with this age long cultural practices on the one hand, while young girls who lack the requisite capacity to volunteer consent for the performance of such procedure by virtue of their tender ages, are most commonly subjected to the procedure.4 this horrendous cultural practice has continued to exist in nigeria notwithstanding the well recognized human rights legal instruments globally articulated to curb human rights abuses against women. it must not be forgotten in a haste that fgm not only contravenes all known regional human right instruments, it also contravenes the constitutionally guaranteed right to life, especially when it results to death.5 this work shall deeply consider and critically examine the meaning and nature of fgm, types of fgm, prevalence of fgm in nigeria as a whole, and the igbo clan of abo  by ifeoma lambert opara, masters degree student of institute of women, gender & development studies, federal university of technology, owerri, imo state.  samson obi umeh, phd, lecturer, department of criminology and security studies, university of agriculture and environmental sciences, umuagwo, imo state, nigeria. e-mail address: elisarahumehsam@yahoo.co.uk. tel: 08036778342. sarah igbokwubiri umeh, phd, associate professor of environmental microbiology, department of environmental health sciences, federal university of technology, owerri, imo state. tel: 08063365313; and anno domini chukwumaeze samson-umeh, llb, bl, legal practitioner at osuohia zion legal consult,127wetheral road,owerri, imo state. tel: 08068643793. 1 hereinafter referred to as ‘fgm’. 2 lemechi, b. osu na ume the igbo untouchable caste systems, (owerri, milestone publishers ltd.2011,) p.5. 3g azuonwu., et. al.‘female genital mutilation: a dehumanizing practice against womanhood in nigeria’, international journal of research and reports in gynecology 3(2) july, 2020,p.14. available at http://www.sadiourticle4.com/reviewhistory/58. 8869 accessed 18th april, 2023. 4ibid. 5constitution of the federal republic of nigeria (as amended), hereinafter referred to as ‘cfrn’ section 40. mailto:elisarahumehsam@yahoo.co.uk african customary and religious law review (acarelar) 4 (2023) 22 mbaise. it will also examine fgm as a species of gender based violence, the health challenges associated with the practice of fgm and thereafter x-ray the current position of fgm practice in abo mbaise, imo state, nigeria. appropriate recommendations shall be made on the ways to eliminate this pandemic. 2. meaning and nature of fgm a lot ink has flown as numerous authors have attempted to define fgm. fgm has simply been defined as: all procedures involving partial or total removal of the external female genitalia or other injury to the female genital organs whether for cultural or other non-therapeutic reasons.6 umeh et. al. tried to proffer a better definition of the term when he stated that: 7 fgm is a surgical procedure performed on women to either remove the external female genital and more often, the labia minora and the clitoris, partially or totally, so as to ensure that women are partially or completely denied of the natural enjoyment of sexual activities. it has been emphatically stated that ‘fgm is a violent damage done to the outset organ of females by excising parts of their female organs, i.e., vagina, thereby causing substantial and permanent damage to these females’.8 it must be reiterated that the performance of fgm on women is not an easy venture but a herculean task which has various stages and dimensions. arinze-umeobi gave an account of how fgm is performed when she stated that:9 fgm is usually commenced by ceasing the little girl entirely nude in a sitting position on a low stool, with her arms tightly around the her chest by at least three women; one or two of the women will hold the girl’s thighs apart by force in order to open wide the vulva; then the person that carries out the procedure takes razor and excises the clitoris, from top to bottom of the small lip and then repeatedly scraps the flesh from the inside of the large lip. she went ahead to state that ‘the little girl who is a victim of fgm will remain devastated, incapacitated, and immobile for approximately forty days to at least allow for the formation of scar tissue’. most often, fgm is performed on females on the approval of highly respected women in the nigerian societies, engaging the services of local barbers, medical doctors, traditional birth attendants and health workers, who most often embark on the operation without the use of anesthesia.10 it must be pointed out that although the origin of fgm is uncertain and shrouded in secrecy,11 it is however speculated that fgm originated in africa’s oldest civilized nation called egypt.12 despite this fact, there is abundant evidence that fgm has been practiced in nigeria for more than thousands of years now.13 it must further be stressed that fgm is embraced by both highly educated and enlightened individuals, including mothers who indulge in the practice without being bothered about the damage it may inflict on their female children and wards.14 the practice of fgm is so rooted in nigerian societies that it is unthinkable that there is no nigerian woman that has not undergone this procedure.15 as a matter of fact, a 2006 research showed that about 60% of the female population of nigerian had undergone fgm.16 on the other hand, a 2020 research estimated that about twenty million nigerian women had undergone fgm.17 it has been stated that this figure represents ten percent of about two hundred million females that had 6p ibekwe et. al. ‘female genital mutilation in south eastern nigeria: a survey of current knowledge and practice’ journal of public health and epidemiology vol. 4 (5) may, 2012, p.117, available at http://www.academicjournals.org/jphe accessed 10th april, 2023. 7s umeh et. al.‘female genital mutilation: a socio-religious myths on the rights of nigeria women’,acarelar vol. 2, 2021, p.90. 8country policy and information note on nigeria: female genital mutilation (fgm), version 2.0. august, 2019’, p.22, available at www.justice.gov./eoir/page/file/1194691/download accessed 6th march, 2021. 9arinze-umobi, c. domestic violence against women in nigeria: a legal anatomy, (onitsha, fo/mech. printing publishing co. ltd, 2008) p. 72. 10u epudu et. al.‘the epidemiology of female genital mutilation in nigeria-a twelve year review’, afrimedic journal, volume 6, no.1, january, 2018, p.3. 11 t okeke et al., ‘an overview of female genital mutilation in nigeria’, (2012) annals of medical research vol. 2. no.1. p.17. 12. 28 toomany, ‘country profile:, fgm in nigeria, oct, 2016’, available at http://www.28toomany.org/staticmedia/uploads/country%20images/pdf/nigeria_country_profile_final.compressed.pdf accessed 30th january, 2023. 13 p ibekwe et. al.‘female genital mutilation in south eastern nigeria: a survey of current knowledge and practice’ (supra), p117. 14arinze-umobi,c.‘domestic violence against women in nigeria: a legal anatomy’ (supra),p. 72. 15ibid. 16 eya, patrick, education and harmful traditional practices against women in nigeria, worec journal of gender studies, volume .1. no. 3, june, 2006, p.93. 17g azuonwu & r ezekiel, ‘female genital mutilation: a dehumanizing practice against womanhood in nigeria’(supra), p.17. http://www.justice.gov./eoir/page/file/1194691/download opara, umeh, umeh & samson-umeh: female genital mutilation as species of gender-based violence: a case study of aboh mbaise local government area of imo state, nigeria 23 undergone fgm procedure globally.18 it has been expressed that there is a strong indication that about three million women are liable to undergo the procedure annually.19 3. types of fgm it is necessary at this juncture to actually determine whether there is only one form or forms of fgm. this will help to throw more light on the types, way and manner the practice of fgm is embraced and carried out by nigerian societies. it has been reiterated that nigeria is about the most multi-ethnic and populous nation in africa with over two hundred and fifty ethnic groups, and over two hundred million people.20 to start with, it must be pointed out at this juncture that fgm is classified into four major types as shall be comprehensively discussed hereunder.21 umeh et. al. also classified fgm into four major types, viz, types i-iv. 22 he went on to explain thus: 23 type i: the fgm of this nature is most often referred to as ‘clitoridectomy’ and commonly involves the total or partial removal of the clitoris, leaving a small sensitive and erectile part of the vagina; or leaving out the prepuce in rear cases. type ii: this form of fgm is also known as ‘excision’. it actually involves the partial or total excision of the clitoris and the labia minora; with or without the excision of the labia majora. type iii: this form fgm is usually referred to as ‘infibulations’ and actually involves the narrowing of the vagina by creating a covering seal, which seal is formed by cutting and repositioning the labia minora or, labia majora. to achieve this, the operator actually stitches the above stated victim’s vaginal parts, with or without removing the clitoris. type iv: the fgm of this nature is also known as ‘unclassified’, and actually involves use of other harmful procedures on the victim’s female genitalia; such as piercing, pricking scraping, incising and cauterizing the female genital areas. apart from the above stated facts, it is a notorious practice that in order to ensure that the female sensitive areas around the vaginal parts are either killed or waned through this type of fgm, for instance, through a systematic dropping of hot water on the clitoris and the general area of the female vulva.24 it is clear that this practice can conveniently be classified under type iv. it has further been reported that there are two other forms of fgm that can also be grouped under type iv, namely: the ‘anguyra cut’ and the gishiri cut’. while the former has been explained to mean a form of traditional surgery or scrapping to remove hymen and often, tissue surrounding the vaginal orifice; the latter simply refer to a cut made in vaginal walls in cases of obstructed labour.25 it has been generally observed that there is no uniformity as to the age women undergo fgm. 26 it is however evident that in most nigerian societies, fgm usually takes place at infancy, although there is proof that about eighty-two percent of nigerian women between the ages of 15-49 had undergone fgm before the age of five.27 it must be expressly pointed out that fgm is the cultural requirement of some ethnic societies in nigeria that females must undergo fgm during the birth of their first children, reason being that its performance is critical in order to ensure that such child does not touch its mother’s clitoris.28similarly, it is culturally required in some nigerian societies that fgm must be performed on a deceased woman who did not undergo the procedure before her death, on her before burial.29 4. prevalence of fgm in nigeria it must be pointed out that nigeria is a multiethnic, multi -religious and multistate entity. thus, fgm prevalence in nigeria differs from one ethnicity to another, one religion to another, as well as from one state to another. according to umeh et. al.: 30 ‘the prevalence of fgm among some ethnic groups in nigeria in 18ibid. 19ibid. 20 28 toomany, ‘country profile: fgm in nigeria’ oct, 2016’, (supra). 21country policy and information note on nigeria: female genital mutilation (fgm), version 2.0. august, 2019’, p.17, available at www.justice.gov./eoir/page/file/1194691/download accessed 6th january, 2023. 22 s umeh et. al.‘female genital mutilation: a socio-religious myths on the rights of nigeria women’ op. cit. p. 92. 23ibid. 24country policy and information note on nigeria: female genital mutilation (fgm), version 2.0. august, 2019’(supra), p.17 25ibid. 26 s umeh et. al.‘female genital mutilation: a socio-religious myths on the rights of nigeria women’ op. cit. p. 92. 27 ibid. 28ibid. 29country policy and information note on nigeria: female genital mutilation (fgm), version 2.0. august, 2019’(supra), p.19. 30 s umeh et. al.‘female genital mutilation: a socio-religious myths on the rights of nigeria women’ op. cit. p. 93. http://www.justice.gov./eoir/page/file/1194691/download african customary and religious law review (acarelar) 4 (2023) 24 accordance with their respective populations is as follows: hausa-19.4%%, fulaani-13.2%, yoruba-54.5%, igbo-25.2%, ijaw-11%, ekoi-56.9%, igala-0.5%, kanuri-2.6%, tivs-0.3%’. research has shown that the highest prevalence of fgm among the thirty-six states of nigeria is found in osun state in the south-west geo-political zone of nigeria, which is put at seventy-seven percent.31 this is closely followed by ebonyi state in the southeast which has seventy-four percent.32 it must be stated on the other hand that kano state has prevalence of thirteen percent; kaduna state in the same geo-political zone has prevalence of thirty-four percent, while katsina state in the north-west has the lowest prevalence of fgm in nigeria with 0.1%.33this analysis simply attests to the fact that fgm is widespread and most prevalent in the southern nigeria.34 it is well noted that the most commonly practiced type of fgm in nigeria is type ii which has prevalence of 62.6%.35 this is closely followed by types i and ii which have prevalence of 5.3% and 5.1% respectively.36 it must be pointed out on the other hand that while types i and ii are most commonly practiced in northern part of nigeria, while types iii and iv are commonly practiced in southern part of nigeria.37 5. physical and health challenges associated with fgm it is a notorious fact that considering the way and manner fgm is performed, women who underwent fgm are often exposed to, and actually encounter a good number of shortand long-term health challenges. as earlier stated, fgm is an act of cutting some parts of female genitalia, definitely with some objects. it must be emphasized that fgm performance with the use of knife or other cutting equipment, the mere sight of which, or at least the slightest idea of the victim that there will be an imminent surgical interference in highly sensitive areas such as the female genitalia, is sufficient to trigger off physical and psychological trauma. this most often throws victims of fgm into panic, anxiety, nightmare, and at the same time, instill a sense of humiliation on the victim.38 this experience will definitely trigger off psychological trauma that may lead to low self esteem, demoralization, and most times victims may be forced to consider suicide. 39 apart from this, there is abundant evidence that in some severe cases of fgm, the excision of the clitoris or other parts of female genitalia may result to the reduction of sexual response that may lead to anogasmia and frigity.40 stretching this further, abdel –azim stated that: 41 patients with vaginal obstetric fistula may also develop urinary or faecal incontinence that may result into physical, socio-cultural and psychological problems. victims may or may not consummate their marriages several weeks after marriage purely as a result of tight infibulations. in some instances, consummation may take up to two years to complete just to enable the victim seek medical help for infertility. in other severe cases where husbands are unable to penetrate into the vaginae of their wives which became too tight as a result of fgm performed on these wives, resort is had to anal sexual intercourse as the only source of consummation of marriage. it must be noted that in all cases of fgm, the realization that the hardship faced by victims of fgm and the betrayal perceived by victims against their parents and family members who forcefully pushed them to undergo fgm, obviously leaves an indelible psychological trauma on these victims. on the other hand, it must be noted that apart from the aforestated psychological challenges faced by victims of fgm, victims are also proned to other dangerous health challenges associated with the practice of fgm. obi and igbinadolor summarized these challenges thus: 42 severe pain, bleeding, post traumatic stress disorders, anxiety, depression, memory loss, eating and sleeping disorders, low libido, apareunia or dyspareunia, chronic pains, dysmenorrhoea, vaginal fistula, labial agglutination, hypertrophic scar/keloids, clitoridal retention cysts, dermnoid cysts, virginal lacerations during coitus, straining at micturitation, 31country policy and information note on nigeria: female genital mutilation (fgm)’, op.cit. p.17. 32ibid. 33ibid. 34s umeh et. al.‘female genital mutilation: a socio-religious myths on the rights of nigeria women’ op. cit. p. 94. 35 national bureau of statistics/bs//unicef, ‘multiple indicator cluster survey (mics), 2016 – 17’ february, 2018, available at http://www,unicef.org/nigeria/media/1406/file/nigeria-mics-2016-17.pdf.pdf accessed 30th january, 2023. 36 bid. 37 bid. 38g azuonwu &r ezekiel, ‘female genital mutilation: a dehumanizing practice against womanhood in nigeria’, (supra), p.17. 39s umeh et. al.‘female genital mutilation: a socio-religious myths on the rights of nigeria women’ op. cit. p. 93. 40 s abdel –azim, ‘psychosocial and sexual aspects of female circumcision’,african journal of urology, 2013, p.141-142, available at http://www.ajo/info/index.php/aju/article/view/95973/85321-141-142 accessed 15th february, 2023. 41ibid. 42a obi & o igbinadolor, ‘prevalence of female genital mutilation and its determinants among pregnant women in benin city, nigeria’, journal of community medicine and primary health care, vol. 30, no. 2, september 2018, p.13. http://www.ajo/info/index.php/aju/article/view/95973/85321-141-142 opara, umeh, umeh & samson-umeh: female genital mutilation as species of gender-based violence: a case study of aboh mbaise local government area of imo state, nigeria 25 genital tract lacerations, especially during vaginal delivery, obstructed labour, increased cases of caesarean deliveries, postpartum haemorrhage, and prenatal deaths. stretching this further, ivazzo et. al. stated that: 43 fgm victims also encounter ‘maternal and foetal deaths, obstructed and prolonged labour(which may eventually lead to obstetric fistula (s) and vesico vaginal fistula),genitourinary tract infections, damage to the genitalia, genital tissue scars, anemia.44most often; fgm is carried out using unsterile equipment, without antiseptics, or antibiotics and in the absence of aseptic conditions.45 apart from the fact that this situation obviously increases the risk of primary infections, it has been scientifically confirmed that fgm performed in such manner above discussed most often expose victims to chlamydia trachomatis, neisseria gonorrhea, trichomonas vaginalis, pseudomonas pyocyanea, staphylococcus aureus, human immunodeficiency virus and clostridium tetani.46 it has also been reported that urological complications may occur following fgm operation.47undoubtedly, medical developments resulting from fgm operation such as tetanus and haemorrhage may lead to shock and eventual death of victims.48 6. fgm as gender based violence as earlier stated in this work, fgm can simply be described as a violent damage done to the outset of females’ genital organs thereby causing substantial and permanent damage to these females.49 arinze-umeobi took time to analyze the procedure involved in the performance of fgm and the traumatic experience faced by victims, as earlier discussed in this work.50 thus, fgm has far reaching harmful physical, psychological and human rights consequences. annoyingly, fgm has no proven or known medical benefit, but rather, a practiced that is aimed at satisfying cultural requirement and fulfilling ethnic identity.51 it is a notorious fact that the cultural beliefs behind fgm include: initiation into womanhood; controlling women’s’ sexuality, ie, as a means of preventing promiscuity/prostitution, curtailing the excesses of women, ensuring purported physical cleanliness, increasing sexual pleasure for men, eliminating women equality with men, etc.52 while confirming this assertion, saracoglu and ozutur submitted that: 53 customarily, women most often have great community pressure exerted on them to have fgm performed on them simply because their clitoris or genitals are dirty, extremely dangerous and or, constitutes irresistible temptation. they thus succumb to fgm just to be relieved of sociocultural and psychological pressure, especially where a good number of their fellow females have undergone the procedure.54otherwise these uncircumcised females will remain objects of ridicule and hence, unfit to enter into marriage contract. it is therefore submitted that fgm is a mere intimidation against women, a harmful traditional practices, as well as a gender violence of the highest order. violence against persons prohibition act, 2015 defines ‘intimidation’ to mean ‘the altering or conveying of a threat or causing any person to receive a threat, which includes fear, anxiety, or discomfort’.55 it also defines ‘violence’ to mean: 56 any act or attempted act, which causes or may cause any person physical, sexual, psychological, verbal, emotional or economic harm whether this occurs in private or public life in peace time and in conflict situations. in the same vein, ‘harmful traditional practices’ have been defined to mean: 57‘ all traditional behaviour, attitude or practices, which negatively affect the 43c ivazzo et. al. ‘female genital mutilation review of clinical evidence’, 2013 archives of gynecology and obstetrics, vol. 287, no. 6. p. 1137 available at htpp://mentshec.fun/85civoor.2 accessed 17th december, 2022. 44s abdel –azim, ‘psychosocial and sexual aspects of female circumcision’,op. cit. 45c ivazzo et. al. ‘female genital mutilation review of clinical evidence’, op. cit. p. 1137. 46ibid. 47ibid. 48s umeh et. al.‘female genital mutilation: a socio-religious myths on the rights of nigeria women’ op. cit. p. 95. 49country policy and information note on nigeria: female genital mutilation (fgm), version 2.0. august, 2019’(supra), p.17. 50arinze-umobi,c.‘domestic violence against women in nigeria: a legal anatomy’(supra), p. 72. 51h bodurin, ‘female genital mutilation: perceptions and beliefs in a nigerian rural community, quoted by g azuonwu . et. al‘female genital mutilation: a dehumanizing practice against womanhood in nigeria’, op. cit.p.16 52m saracoglu & h ozutur, female circumcision andrology and gynecology: current research, quoted by g azuonwu . et. al‘female genital mutilation: a dehumanizing practice against womanhood in nigeria’, op. cit.p.15 53ibid. 54ibid. 55 hereinafter referred to as ‘vapp act’, section 46. 56ibid. 57ibid. african customary and religious law review (acarelar) 4 (2023) 26 fundamental right of women, girls, or any person and include harmful widowhood practices, denial of inheritance or succession rights, female genital mutilation, false marriage and forced isolation from family and friends’. it must further be stressed that fgm is a calculated attempt/ploy to deny or rob women of their human rights. it is an obvious disrespect to the concept of universality of human rights as well as a contravention of the express provisions of the constitution of nigeria which clearly provides that:58 ‘every individual is entitled to respect to the dignity of his person and accordingly, no person shall be subjected to torture or to inhuman or degrading treatment’. worst still, fgm constitutes an act prejudicial and inimical to woman’s right to life, bodily integrity, health and sexuality which the 1999 constitution of nigeria conferred on every nigerian 59 fgm also contravenes the internationally guaranteed right to health of the child.60 it is very unfortunate and most disappointing to state further that fgm is usually carried out either without the consent of the victim, or with her consent tainted with coercion or undue influence.61 this assertion is confirmed by the fact that most often, the consent of fgm victims are sidetracked on the pretext that once victims’ parents or their grandparents have consented to the performance of fgm, the consents of the victims become inconsequential.62 obviously, this unhealthy development pushed the court to hold in the case of prince v massachussett that:63 ‘parents may be free to make martyrs themselves, but it does not follow that they are free to make martyrs of their children before they have reached the age of full and legal discretion, when they can make the choice for themselves’. 7. current state of fgm in aboh mbaise before delving into this sub-topic, it is necessary to consider the locality, subject of this research with a view to comply with accuracy standards. by way of commencement, it must be stated that aboh mbaise is one of the twenty seven local government area councils in imo state, with its headquarters at abo.64 apart from the fact that aboh mbaise is made up of many towns some of which are: nguru, uvuru, mbutu, okwuatu, lorji, amuzu and enyiogugu, etc; it has an area of one hundred and twenty-four kilometers, and a population of approximately one hundred and ninety-five thousand, six hundred and fifty-two people as at the time 2006 census was conducted. 65 the population for this study is comprised of women aged 15-49 years living mainly in nguru, uvuru, mbutu, okwuatu, lorji, amuzu, and enyiogugu for at least in the last five years. this group of women was used because they are deemed to be well abreast with the current trends fgm. oral interviews amongst women between the age bracket of 15-49 years were conducted. responses to the oral interviews and questionnaires issued to them show that there is a dart in the practice of fgm in the area in relation to types iiii. it was however discovered that the only form of fgm practiced in the locality is type iv fgm, that is to say, the systematic dropping of hot water on the clitoris and the general area of the female vulva, and or the pressing in of the clitoris and the general area of the female vulva with or without the use of petroleum jelly such as vaseline or other substances just to ensure that the females’ sensitive areas around the vaginal parts are either killed or waned. these women admitted having this procedure performed on their female children and wards. they also admitted to have had same procedures performed on them after birth by their parents in accordance with cultural requirements. they did not seem to see anything wrong with this form of procedure either legally of health wise. they only see it as a means to curb the sexual excesses of girls/women. although they admitted being aware of laws prohibiting types ii-iii of fgm, they seem not to be aware of any law prohibiting this form of type iv fgm. the truth is that even if such laws exist, they will not be obeyed by them. it is submitted that the increased practice of fgm in abo mbaise is a negation of the attempts made so far at the international, regional and national levels to eliminate this scourge called fgm. it must be pointed out that since the convention for the elimination of all forms of discrimination against women, 1979 was articulated and ratified by most nations of the world, including nigeria, there have been other efforts made globally to ensure that gender violence, such as fgm are eradicated. it must also be pointed out that apart from ratifying the maputo protocol, nigeria was among the countries that sponsored the resolution at the 46th world health assembly in 1993 calling for the total and complete eradication of fgm globally.66 pursuant to this goal, 58 cfrn, section 42 (1). 59ibid. sections 34 and 42 (1), 60article 24 (3) of united nations convention on the rights of the child, 1989; article 5 african charter on human and peoples’rights, 1986. 61t okeke et al., ‘an overview of female genital mutilation in nigeria’, op.cit. 62toomany, ‘country profile: fgm in nigeria oct, 2016’, (supra). 63 (1944) 321 u.s. 158. 64about aboh mbaise local government area (l.g.a.) available at http://www. manpower.com.ng/places/lga/330/abombaise accessed 30th march, 2023. 65ibid. 6628 toomany, nigeria: ‘the law and fgm june, 2018’, p.1 available at http://assets.publishing.service.gov.uk>accessed 30th may, 2021. opara, umeh, umeh & samson-umeh: female genital mutilation as species of gender-based violence: a case study of aboh mbaise local government area of imo state, nigeria 27 federal and state governments of nigeria initiated high level of education, sensitization, enlightenment as well as various awareness programmes to stamp out fgm in nigeria.67 there has since then been a proliferation of anti gender violence legislations both at the federal and state levels. for instance, vapp act was passed into law in 2015 which outrightly outlawed fgm and other harmful traditional practices against women.68 it not only prescribes adequate punishment against those that perform or engage others to perform fgm, but also against those who cut, incite, abate or counsel others to attempt or perform fgm.69 it is commendable that most states in southern nigeria, including imo state have either domesticated the vapp act, or passed other anti fgm laws, apart from the domestication of the child rights act. it must not be forgotten in a hurry that the fight against fgm did not stop by the passage of the above mentioned acts. evidently, there are also other enactments such as the medical act which punishes medical practitioners engaged in fgm activities through suspension of medical practitioners from medical practice for six months, or by striking out their names from the register of medical practitioners.70in the same vein, the national health act provides that ‘any person who removes tissue stands the risk of a fine of one million naira or to an imprisonment for two years, or both imprisonment and fine’.71 8. conclusions and recommendations it can be safely concluded that although fgm is a discriminatory act and a cruel procedure geared toward the dehumanization of the women-folk, its practice is still on the increase in abo mbaise where the type iv fgm is still embraced by natives and residents. this is so irrespective of the fact that fgm has been exposed among the populace through different awareness programs, as deep-rooted gender violence and an outright violation of both the reproductive and human rights of women. as a matter of fact, fgm has from time immemorial, permeated into both public and private life of natives and residents of abo mbaise people despite the fact that fgm has been outrightly banned nationally via legislation. if this development is not urgently curded, women in abo mbaise will continue to experience violence, deaths, diseases/infections, coupled with the physical and psychological trauma associated with fgm. it is suggested that the fight to eliminate fgm in abo mbaise will remain an uphill task unless more efforts are made by the imo state and abo mbaise local government to cooperate with law enforcement agents, other human right commission, other associations, non-governmental organizations, etc, to change the cultural and religious misconceived belief behind the continued practice of fgm, through strict enforcement of fgm laws. there is also need for abo mbaise local government council to collaborate with neigbouring communities and security agencies in nigeria with a view to ending fgm. it is also suggested that the fight against fgm should also be taken to the school, skill acquisition centers, village meetings, etc. this is achievable through sensitization programs to be championed or organized by religious and traditional leaders, town unions, youth groups, and faith based organizations, informing the populace of the dangers inherent in the practice of fgm. above all, women should be educationally and financially empowered. this is because only highly educated and financially stable women can rise up and resist fgm and its enforcers. 67bid. 68violence against persons prohibition act, hereinafter referred to as ‘vapp act’. 69ibid. section 1 (2), (3) & (4). 70medical and dental practitioners act, laws of the federation of nigeria 2004, section 16(2). 71national health act, laws of the federation of nigeria 2014, section 48(3) (a). enakireru & igbineweka: the bini customary law of inheritance and succession: the intestate practice of igiogbe 1 | p a g e the bini customary law of inheritance and succession: the intestate practice of igiogbe* abstract this work examined the intestate practice of igiogbe and inheritance under the bini customary law. an igiogbe is the house where a bini man lived, died and usually in most cases is buried. it devolves absolutely without any contradiction on his eldest surviving son as soon as the burial rites are performed and completed by him (in rare instances supported by family members) in accordance with the bini customary burial rites. the work critically examined hereditary traditional title holders and non-traditional title holders, the urho – system (per stripes), burial ceremony. this work found that igiogbe practice is still relevant in modern benin kingdom and that the discriminatory practice against the women folk in relation to this concept is alarming and ridiculous. the work is concluded with some recommendations. amongst which includes mass enlightenment campaigns being mounted by the ministry of women affairs at both the federal and state levels to enlighten the people about the hardship and injustice which discriminatory customary laws impose on women and that any customary law that is discriminatory against women should be declared invalid on the grounds that it is unconstitutional and repugnant to natural justice, equity and good conscience. keywords: hereditary, inheritance, custom, igiogbe, funeral 1. introduction this work will analyze inheritance and succession specifically under the bini customary law. succession under customary law in africa is basically of two systems; the patrilineal and the matrilineal systems of inheritance. in nigeria it is the patrilineal system of inheritance that is mostly practiced. the system of primogeniture in which the eldest surviving son succeeds his deceased father and also inherits his properties absolutely governs inheritance in bini kingdom.1 under the bini native laws and customs the system of primogeniture is rigidly adhered to.2 in the circumstance that the eldest surviving son is indisposed to managing the igiogbe maybe on grounds of insanity or infancy, he is still entitled to inherit it but the management would vest on his younger brother or uncle depending however on the circumstance of each case.3 the primogeniture rule was modeled to that of the monarchy who from the reign of oba ewuare (1440-1473 ce), laid down customary rule that it is the oba’s surviving eldest child that will succeed him to the throne and also inherits his estate exclusively provided he had performed alone the customary funeral rites of his father. it therefore became the custom of the binis till date. under this custom, the heir apparent to the benin throne is the edaiken n’uselu being the next of kin of the oba. the property (which can also mean his igiogbe) of the demised oba is never shared; they vest in the edaiken n’uselu, the heir apparent to the throne. a reigning oba can devise any gift or property to any of his children in his life time.4 2. hereditary traditional title holders and non-traditional title holders upon the death of a holder of a hereditary title, the principal actor in the burial ceremony is the eldest surviving son, though the other children may make contribution to help their eldest brother. it is the eldest son who performs all the ceremonies.5 after the eldest son has performed the final burial ceremony, which of course will end with *by e. o. enakireru, phd, senior lecturer, department of jurisprudence and international law, college of law, western delta university, oghara, delta state, nigeria. e-mail: ericomo61@yahoo.com, 08050617977, 07062041722; and *faith osehuotue igbineweka, ll. b, bl, ll.m, department of private and property law, college of law, western delta university, oghara, delta state, nigeria. e-mail faithigene3@gmail.com, 08099441410, 09122728799 1 interviews with barr. kola s. okeaya–inneh, san, chairman; nigeria bar association, south–south chapter and principal partner; kola s. okeaya–inneh san & co., (no. 66 mission road, benin-city, edo-state, nigeria, 08th may, 2015), chief harrison okao jp., the ohen osa of benin kingdom, (no. 27 akpapava road, benin-city, edo-state, nigeria, 03rd june, 2015), barr. rex. e. oriuwa; principal partner r. e. oriuwa & co., (no. 13 imoisili street, off borehole road, ekpoma, edostate, nigeria, 30th june, 2015), pa. aimuanmwenosa samson emovon-osagie; the edoinwere of lawani quarters, benincity (no. 1 okundaye street, off upper lawani street, new-benin, benin-city, edo-state, nigeria, 02nd july, 2015), mr. ulhifun reuben i.; the chairman, landlord association omomo street, benin-city, edo-state. (no. 22 omomo street, off stadium road, benin-city, edo-state, 02nd july, 2015), barr. raphael iyamu edugie; senior counsel, eghobamien & co. (no. 30 ekewan road, benin-city, edo-state, 04th september, 2015) and nosa musoe; chief magistrate, (high court of justice, benin-city, edo-state, 07th september, 2015). 2 ibid, egharevba j.u., a short history of benin, (fifth edition, fortune and temperance publishing co. benin–city, 2005) and osemwowa u. i., the customary law of the binis, (myke commercial press, benin–city, 2000), p. 36. 3 okeaya-inneh k. s., benin native law and custom at a glance, (gift-prints associate, benin, nigeria, 2007), pp. 28–29. 4 okeaya-inneh k. s., benin native law and custom at a glance, (gift-prints associate, benin, nigeria, 2007), pp. 28–29. 5 the ohen osa of benin kingdom, (no. 27 akpapava road, benin-city, edo-state, nigeria, 03rd june, 2015), barr. rex. e. oriuwa; principal partner r. e. oriuwa & co., (no. 13 imoisili street, off borehole road, ekpoma, edo-state, nigeria, 30th mailto:ericomo61@yahoo.com mailto:faithigene3@gmail.com african customary and religious law review (acarelar) 3 (2022) 2 | p a g e ukomwen, he succeeds to all his father’s titles and he inherits the entire estate exclusively.6 according to benin traditional council7, ‘bini customary law is not an ass’, hence custom expects the eldest son, morally, to make gifts out of the estate to some of his brothers and sisters next to him in seniority. again, custom expects the eldest surviving son to accommodate his other brothers and sisters.8 this accommodation of the other siblings by the eldest surviving son is however subject to the good behavior of the other siblings to him.9 where there is no male child to succeed to the hereditary title, a brother or any other male paternal relation of the deceased succeeds the title after due confirmation by the oba, but the deceased properties are shared among his female children.10 if a person whether a title holder or not made a grant of a gift to any of his children or other person while alive, such property ceases to be part of the estate of the person upon his death, and is excluded from those to be shared.11 there are traditional offices and institutions that are hereditary in benin. the uppermost is the position of oba. apart from the obaship title, there are other hereditary titles in benin. these titles are categorized into two. namely: the kingmakers and non-kingmakers.12 the kingmakers are; oliha, ezomo, ero, edohen, oloton, eholonire and edaikencalled the uzamas. the nonkingmakers are; arala, aihioba and recently the obaseki.13 it is pertinent to note that the oba and the benin kingmakers all have their separate palaces while the hereditary chiefs are not entitled to palaces.14 as regards inheritance outside the obaship, after the eldest son has performed the final burial ceremony, which of course, will end with the establishment of an altar for his deceased father, he succeeds to his fathers’ title and inherits the entire estate exclusively.15 as noted earlier, inheritance in benin kingdom is based on primogeniture system.16 soon after the death of a benin man, the inventory of the deceased properties is taken by the okaegbe or his representative in the presence of the deceased eldest son and any of the other children who may be present.17 this inventory is kept by the okaegbe who has responsibility to ensure their safe keeping pending the completion of the burial ceremonies by the children. in the olden days all the movable properties were kept physically in the okaegbe’s possession while all immovable properties were noted and identified.18 on completion of the final burial ceremonies by the eldest son, this means in benin custom ‘orere okoe’, the okaegbe who presided over the burial ceremonies, with other senior members of the extended family, if considered necessary, meet with the children of the deceased and share the deceased person properties among the children.19 in sharing the deceased properties, the house in which the deceased lived and died which is otherwise referred to as his igiogbe automatically devolves on the eldest surviving son.20 however, custom enjoins the eldest son to accommodate his brothers and sisters (subject to their good behavior) until they are able to build their own houses and move out (if women) until they get married.21 benin custom stipulates where the deceased has other landed properties apart from his igiogbe these properties are distributed to the other children according june, 2015), pa. aimuanmwenosa samson emovon-osagie; the edoinwere of lawani quarters, benin-city (no. 1 okundaye street, off upper lawani street, new-benin, benin-city, edo-state, nigeria, 02nd july, 2015), 6 okeaya-inneh k. s., benin native law and custom at a glance, (gift-prints associate, benin, nigeria, 2007), p. 48. 7 ibid and benin traditional council, a handbook on some benin customs and usages, (first edition, soben printers limited, benin–city, 1996), p. 15. 8 ibid. 9 ibid. 10 ibid. 11 egharevba j.u., a short history of benin, (fifth edition, fortune and temperance publishing co. benin–city, 2005), p. 13 and osemwowa u. i., the customary law of the binis, (myke commercial press, benin–city, 2000), p. 28. 12 ibid. 13 chief harrison okao jp., the ohen osa of benin kingdom, (no. 27 akpapava road, benin-city, edo-state, nigeria, 03rd june, 2015), barr. rex. e. oriuwa; principal partner r. e. oriuwa & co., (no. 13 imoisili street, off borehole road, ekpoma, edo-state, nigeria, 30th june, 2015), 14 ibid. 15 ibid 16 ibid and ogbobine r. a. i., materials and cases on benin land law, (bendel newspaper corporation, benin-city, 1978) available on https://books.google.com.ng/books?id=aebydrvj3qkc&dq=justice+r+a+i+ogbobine+materials++and+cases+on+benin+ land+law&q=justice+r+a+i+ogbobine+materials++and+cases+on+benin+land+law#v=snippet&q=justice%20r%20a %20i%20ogbobine%20materials%20%20and%20cases%20on%20benin%20land%20law&f=false accessed on 28th august, 2015. 17 ibid. 18 the ohen osa of benin kingdom, (no. 27 akpapava road, benin-city, edo-state, nigeria, 03rd june, 2015), barr. rex. e. oriuwa; principal partner r. e. oriuwa & co., (no. 13 imoisili street, off borehole road, ekpoma, edo-state, nigeria, 30th june, 2015),15. 19 ibid. 20 ibid. 21 benin traditional council, a handbook on some benin customs and usages, (first edition, soben printers limited, benin– city, 1996), p. 13. https://books.google.com.ng/books?id=aebydrvj3qkc&dq=justice+r+a+i+ogbobine+materials++and+cases+on+benin+land+law&q=justice+r+a+i+ogbobine+materials++and+cases+on+benin+land+law#v=snippet&q=justice%20r%20a%20i%20ogbobine%20materials%20%20and%20cases%20on%20benin%20land%20law&f=false https://books.google.com.ng/books?id=aebydrvj3qkc&dq=justice+r+a+i+ogbobine+materials++and+cases+on+benin+land+law&q=justice+r+a+i+ogbobine+materials++and+cases+on+benin+land+law#v=snippet&q=justice%20r%20a%20i%20ogbobine%20materials%20%20and%20cases%20on%20benin%20land%20law&f=false https://books.google.com.ng/books?id=aebydrvj3qkc&dq=justice+r+a+i+ogbobine+materials++and+cases+on+benin+land+law&q=justice+r+a+i+ogbobine+materials++and+cases+on+benin+land+law#v=snippet&q=justice%20r%20a%20i%20ogbobine%20materials%20%20and%20cases%20on%20benin%20land%20law&f=false enakireru & igbineweka: the bini customary law of inheritance and succession: the intestate practice of igiogbe 3 | p a g e to ‘urho’ and all other movable properties are similarly distributed among all the children starting with the eldest son.22 3. the urho system (per stripes) as in most parts of africa at large and indeed nigeria, a bini man who wants to be polygamous is not forbidden or precluded from indulging in it.23 this practice somehow has been posing problems especially after the demise of the head of the family, as regards the distribution of his estate, occasioned more specifically if the deceased had more than his dwelling house which is the igiogbe. in other to remedy the problem caused by polygamous practice, the urho system of property distribution among the deceased children is evolved.24 urho system under the benin customary law of inheritance is recognising another child by a different woman for the deceased benin man. urho simply means the sharing of the deceased properties according to the numbers of wives. this principle is aimed at correcting any wrong done in the course of distributing a bini man’s estate especially if he dies intestate.25 if a man had more than one wife, the wives are called urho and the children are identified by the various urho for the purpose of the funeral. so, at a meeting of the elders to discuss the burial ceremony of the deceased, each urho must have a representative, preferably the oldest sons. if the oldest overall son is present, the other children can attend irrespective of gender unless the okaegbe ask for the males from each urho to be present. otherwise, the sisters can always relate the message to their brother(s). the predominant system of distribution is per stripes. the per capita system of distribution will only be used if using the per stripes would occasion injustice especially to a legitimated child. 4. burial ceremony burial ceremony (or rites of passage as it is often referred to) in this sense includes the death of a person, the preburial planning, the interment proper, mourning period, postinterment ceremonies and the devolution of property (if any). upon the death of a bini man, the children notify the family through the instrumentality of the okaegbe. once the death of a person is announced, the immediate and extended family swings into action to accord the deceased a befitting funeral in line with the custom and tradition of the binis in general and some particular to the family. the most important persons in a summoned meeting after death are the okaegbe and the omo-odion.26 other members of the extended family, such as cousins may be allowed to participate at the meeting. there is, however, a distinction between an ovbi-okhuo and those that are not. they can be seen but not heard.27 if the eldest son cannot be present for any reason, he can either delegate his function to his younger brother (if the family is monogamous) or his younger brother of the same mother (if the family is polygamous) or postpone the meeting entirely until such a time that he will be available.28 if there is an adult female and the first male is a minor, both the adult female and the first male who is a minor become and act as one with the older female actually carrying out the burden and bearing the responsibilities.29 it should however be noted that the adult female carries out these responsibilities in the name and stead of the minor first son.30 if all the children are minors, a small version of a funeral could still be done with the whole family on both sides in support. also, there could be just a burial but the traditional funeral ceremony will take place when they grow up.31 the most important questions asked at a meeting of the bereaved and the okaegbe would be if the children are ready to bury their deceased and when. the eldest son has the customary discretion after due consultation with his brothers and sisters to determine what date to commence the performance of the funeral rites of his deceased father.32 if the answer is in the affirmative and a time proposed is fixed, the okaegbe relying on family tradition 22 ibid. 23 ibid and okeaya-inneh k. s., benin native law and custom at a glance, (gift-prints associate, benin, nigeria, 2007), pp. 49-50. 24 ibid. 25 olowu v. olowu (1985) 3 n.w.l.r. (pt. 12) 372. 26 ibid 27 ibid. 28 ibid. 29 the ohen osa of benin kingdom, (no. 27 akpapava road, benin-city, edo-state, nigeria, 03rd june, 2015), barr. rex. e. oriuwa; principal partner r. e. oriuwa & co., (no. 13 imoisili street, off borehole road, ekpoma, edo-state, nigeria, 30th june, 2015), pa. aimuanmwenosa samson emovon-osagie; the edoinwere of lawani quarters, benin-city (no. 1 okundaye street, off upper lawani street, new-benin, benin-city, edo-state, nigeria, 02nd july, 2015), mr. ulhifun reuben i.; the chairman, landlord association omomo street, benin-city, edo-state. 30 ibid. 31 ibid. 32 ibid. african customary and religious law review (acarelar) 3 (2022) 4 | p a g e informs the family of what such a funeral entails and the portion and expectations due each person.33 a normal bini funeral lasts for seven days. every other so called burial (christian and cult) are abnormal and alien to bini custom. the eldest son takes the lion share of responsibilities and in descending order till the last child or the children of the last wife. some children might feel that their deceased father was not really supportive of them while he was alive so they should not be tasked by the okaegbe to do more than they intend or think is sufficient in the circumstance. in some families, all the children come together and carry out the okaegbe's wishes. this may not be so expected in some other instances especially were the wives have barely tolerated each other.34 under bini tradition and custom, a child that did not partake in a burial cannot inherit. participation does not mean physical presence.35 the implication of this is that while some children may be physically present, they may for reasons best known to them not participate while some children who have genuine reasons to be absent can also participate fully either by giving financial and/or moral support.36 on the death of benin man, it is the eldest surviving son with his brothers and sisters, who performs the funeral rites of the deceased parent for the family.37 however, it should be noted that the responsibility to bury the deceased rests on the eldest surviving son of the deceased.38 the funeral rites are in two parts: first and second burial ceremonies. the first ceremony includes all rituals performed that end with the actual interment of the deceased. the second ceremony may follow immediately after the first ceremony or at a later date depending on the preparedness of the eldest surviving son. the second ceremony includes all rituals performed that ends with ukomwen. the okaegbe n’ okhua normally delegates okaegbe irorinmwin to officiate and guide the children to conclude all the funeral rites. at the end of the burial, the okaegbe irorinmwin with the children presents his report with all items used to the okaegbe n’okhua.39 custom imposes all the responsibility on the eldest son, including carrying his brothers and sisters along with him and the customary responsibility of the family elders especially the okaegbe if they are honest and sincere, is to guide the eldest son.40 the funeral rites most especially the second ceremony is a condition precedent to inheritance in benin kingdom.41 among the edo speaking people, burial customs depended primarily on whether or not the deceased had children. it was very uncommon for childless corpses to be buried by brothers or sisters with the same degree of fanfare as occurred with those with children. usually, heirless corpses were buried in the same way as children. that is, simply thrown into the bush. burial ceremonies also depended on how wealthy the deceased was or his/her rank in society. the richer or more important the family of the deceased is, the longer the burial ceremony. graves were typically dug in the deceased’s room. the actual burial was sometimes attended only by the deceased relatives but at other times, his wives would also attend. sons-in-law had to contribute cloth, yams, coconuts, other objects as well as a goat.42 this aspect was considered so sacred that if ever there was a dispute about whether a woman had been properly married to a given man the key question was always whether the alleged husband brought contributions to the funeral expenses of her late father.43 during burial, traditional burial songs were sung. after the grave had been filled a sacrifice was offered and the grave-diggers would purify themselves with water or a chicken. subsequently, night and morning sacrifices would continue for a varying number of days 33barr. rex. e. oriuwa; principal partner r. e. oriuwa & co., (no. 13 imoisili street, off borehole road, ekpoma, edo-state, nigeria, 30th june, 2015), pa. aimuanmwenosa samson emovon-osagie; the edoinwere of lawani quarters, benin-city (no. 1 okundaye street, off upper lawani street, new-benin, benin-city, edo-state, nigeria, 02nd july, 2015), 34 ibid. 35 ibid 36 ibid. 37 okeaya-inneh k. s., benin native law and custom at a glance, (gift-prints associate, benin, nigeria, 2007), 36–39. 38 ibid. 39 okeaya-inneh k. s., benin native law and custom at a glance, (gift-prints associate, benin, nigeria, 2007), pp. 36–39 and interviews with barr. kola s. okeaya–inneh, san, chairman; nigeria bar association, south–south chapter and principal partner; kola s. okeaya–inneh san & co., (no. 66 mission road, benin-city, edo-state, nigeria, 08th may, 2015), chief harrison okao jp., the ohen osa of benin kingdom, (no. 27 akpapava road, benin-city, edo-state, nigeria, 03rd june, 2015), barr. rex. e. oriuwa; principal partner r. e. oriuwa & co., (no. 13 imoisili street, off borehole road, ekpoma, edo-state, nigeria, 30th june, 2015), pa. aimuanmwenosa samson emovon-osagie; the edoinwere of lawani quarters, benin-city (no. 1 okundaye street, off upper lawani street, new-benin, benin-city, edo-state, nigeria, 02nd july, 2015), mr. ulhifun reuben i.; the chairman, landlord association omomo street, benin-city, edo-state. (no. 22 omomo street, off stadium road, benin-city, edo-state, 02nd july, 2015), barr. raphael iyamu edugie; senior counsel, eghobamien & co. (no. 30 ekewan road, benin-city, edo-state, 04th september, 2015) and nosa musoe; chief magistrate, (high court of justice, benin-city, edo-state, 07th september, 2015). 40 benin traditional council, a hand book on some benin customs and usages, (first edition, soben printers limited, benin–city, 1996), pp. 11-15. 41 ibid. 42 benin traditional council, a hand book on some benin customs and usages, (first edition, soben printers limited, benin–city, 1996), pp. 11-15. 43 ibid. enakireru & igbineweka: the bini customary law of inheritance and succession: the intestate practice of igiogbe 5 | p a g e (3, 7 or 14 or more). on the last night a family member, usually the eldest surviving son is dressed up to represent the dead man and is made to occupy his seat.44 5. conclusion and recommendations from the above analysis, it is clear that the decision of the nigeria supreme court in idehen v. idehen created a lot of anxiety as to whether the supreme court has expanded the scope and definition of igiogbe under bini customary law of inheritance and succession. the oba of benin quickly responded to correct this impression and restore the age long traditions of the bini people. with the reform he introduced in his book45 affecting succession to the igiogbe, the eldest surviving son of the deceased now has a choice as to which property he would prefer as igiogbe in a situation where the deceased had more than one house provided the deceased had lived in that house during his lifetime, died in the house, may be buried in it and the first son had performed the second burial rites of his father according to the burial rites of the bini custom. these reforms which are documented and widely circulated in the state has to a large extent reduced the efficacy of the supreme court’s decision in idehen v. idehen concerning the concept of two igiogbe under bini native law and custom. consequently, inheritance to the igiogbe is now done on the bases of the oba’s proclamation rather than in accordance with the principles in idehen v. idehen thereby reducing if not eliminating completely the conflict introduced by the concept of two igiogbes. in the igiogbe concept under the bini customary law of inheritance and succession, the provision of section 42(1) of the constitution of the federal republic of nigeria 1999, cap. c23, lfn, 2004 (as amended 2011) is not strictly followed, in that the igiogbe concept forbids discrimination on grounds of circumstances of birth being that a legitimated first son can inherit an igiogbe but a child is forbidden from inheriting an igiogbe simply because she is a female. a daughter who is the eldest surviving child of a deceased is not accorded a special status or treatment under the customary laws of inheritance but a son who is the eldest surviving child is generally accorded a special status and treatment as the head of the immediate family of the deceased man. it observed that the problems of discrimination against women are both international and national and not peculiar to the bini’s alone. in view of the foregoing, this work recommends the following suggestions as the way forward in achieving a reasonable advancement of women’s rights in the contemporary nigerian society. a) customary laws of inheritance that are discriminatory against women on the basis of sex needs to be reformed, so that wives and daughters can be given the right to inherit the property of their deceased husbands and fathers. the enlightenment campaign should be a collective duty of traditional rulers, religious leaders/bodies, community leaders and heads of family who are regarded as the custodians of the culture of their people considering the fact that customary laws are deeply rooted in the culture of the people. it is necessary to involve these categories of people because it is under their auspices that these customary laws which cause a lot of hardships to women operate. their support is therefore necessary for the reform to be effective. b) mass enlightenment campaign should be mounted by the ministry of women affairs at both the federal and state levels to enlighten the people first about the hardship and injustice which the discriminatory customary laws impose on women. secondly, to make people appreciate that the basis for which custom denied women the right to inherit property in the past is no longer sustainable in contemporary times. therefore, there is need to reform the laws. the campaign should be through jingles on electronic media, discussions over the radio, advertisements on bill boards, in newspapers in both english and local languages so as to reach the literate and illiterate members of the public. these enlightenment programmes are necessary to change the social attitudes of the people particularly the men. this will aid change the popular misconception that women are inferior to men and eventually facilitate a reform of the customary laws. this is because many women, owing to illiteracy or ignorance are not aware of the existing laws on inheritance which provide the rights of inheritance for them. even the educated ones who have some knowledge of the laws do not bother to know the contents of such laws and how they can access the laws to protect their rights of inheritance. in this connection, women social groups/organisations, religious leaders in rural communities, non-governmental organisations, mass media, ministries of women affairs and justice at both federal and state levels should embark on educational and enlightenment programmes to educate women of their rights of inheritance under the existing laws. it is hoped that such concerted efforts will help to promote women’s rights of inheritance. c) reform of states’ laws on inheritance starting from the grassroots should be followed by legislation. such legislation should abolish the indigenous customary laws of inheritance that are discriminatory against women. also, it is the recommendation of this work that new wills laws should be enacted. 44 ibid 45 benin traditional council, a hand book on some benin customs and usages (first edition, soben printers limited, benin – city, 1996). african customary and religious law review (acarelar) 3 (2022) 6 | p a g e states that have not enacted wills laws should enact such laws to replace the english wills acts of 1837 and 1852 that are still applicable in those states. d) free legal aid for matters relating to the rights of inheritance should be provided by the legal aid council for poor women to seek redress in courts in cases of the violation of their rights of inheritance. it is pertinent to state that the legal aid council act presently empowers the legal aid council to render free legal assistance in respect of civil claims to cover breach of fundamental human rights as guaranteed under chapter iv of the constitution of the federal republic of nigeria 1999, cap. c23, lfn, 2004 (as amended 2011). this will make women have better access to legal representation when their rights of inheritance are violated or about to be violated. e) the role of the judiciary should not be under-emphasized. our courts should be bold and imaginative in their determination of issues on customary laws affecting inheritance rights of women. any customary law that is discriminatory against women should be declared invalid on the grounds that it is unconstitutional and repugnant to natural justice, equity and good conscience. in this way, the judiciary will help to develop our customary laws to meet changes in global trends to women’s rights and uphold the fundamental human rights of women as guaranteed under our constitution. african customary and religious law review (acarelar) 4 (2023) 54 institutional frameworks for medical waste management in nigeira: challenges and prospects•• abstract medical waste otherwise referred to as healthcare waste (hcw) constitutes a special category of waste because they contain potentially harmful substances. the challenge of proper management medical waste has become one of critical concerns in developing countries especially nigeria. the concept of medical waste is wide, and it includes every waste generated in the process of diagnosis, treatment of patients and other medical procedures from all the types of healthcare institutions. there are various laws for management of medical wastes in nigeria. some of these laws also created or mandates specific institutions for management of wastes generated from healthcare facilities. also, health care facilities owes patient and other people that visits their facilities duty of care, and these duties includes ensuring that wastes generated thereat are properly disposed of. a number of studies have indicated that the inappropriate handling and disposal of medical waste poses health risks to health workers who may be directly exposed and to people near health facilities, particularly children and scavengers who may become exposed to infectious wastes. this paper aimed at appraising the roles of various institutions/bodies saddled with the responsibilities of medical waste management in nigeria, thereby assessing their effectiveness and otherwise in discharge of their duties. the challenges these institutions faced in the course of their duties are also discussed. the paper adopted doctrinal methods of data collection and in doing so, looked at relevant statutory provisions, textbooks, journal articles etc. the study found among other things that several factors including lack of fund, equipment and inadequate manpower accounts for their poor performance. it is part of recommendations of the paper that adequate fund, skilled manpower and modern medical waste management equipment be provided by government. private waste managers/contractors be also encouraged with grants and low interest rate loan. with our recommendations on ground, the medical waste management institutions/bodies will carry out their duties optimally thereby ensuring that our environment is medical waste free. keywords: waste, medical/healthcare waste, medical waste management. 1. introduction the duty of management of waste, healthcare or medical waste and indeed other varieties of waste in nigeria, is the responsibility of every citizen. adequate medical waste treatment and disposal is the solution to safeguard the nigerian environment and provide healthy, hygienic living environments for the citizens. what affects the environment ultimately will affect man. bad environment affects the health of man. it is therefore important that all hands be on deck in the fashioning of a more effective mode of managing medical waste. there is no doubt that the volume of medical wastes generated in nigerian health facilities is increasing, but the capacity of the authorities/ the agency (empowered) to cope with their statutory responsibilities of disposing these wastes are diminishing.1 there is no argument on there exists several institutions saddled with the responsibilities of management of wastes generated in healthcare facilities in nigeria. while some of these institutions are directly involved, others are involved indirectly due to the nature of their functions. majority of our healthcare facilities and street corners are littered with hazardous medical waste on daily basis and no one appears to be perturbed. poor waste management leads to bad environment, and bad environment affects the health of man.2 although the volume of medical/healthcare waste generated in healthcare facilities in nigeria is increasing, the capacity of the agencies with statutory responsibilities of managing these wastes is diminishing.3 2. meaning of medical waste just like any other concept, medical waste appears to have defied certain and comprehensive definition. this is so because majority of the author used ‘waste’ and various related terminologies in their definitions of healthcare/medical waste. for instance, medical waste has been defined to include all the wastes generated in the diagnosis, treatment, surgeries, autopsies, or other medical procedures from all types of healthcare institutions, including hospitals, clinics, doctors (dental and veterinary) offices, medical laboratories and •by u.c. kalu, llb, bl, llm, phd, bl, professor of law, faculty of law, nnamdi azikiwe university, awka. email: uwadinekekalu@gmail.com, uc.kalu@unizik.edu.ng, phone: 08037727063; and •christopher elom origbakpor, llb, bl, llm, phd candidate, department of public and private law, faculty of law, nnamdi azikiwe university, awka. email: christopherelom54@gmail.com, phone: 08168823216 1 j. u. achor, improving the living environment in slum settlement, (lagos: bedan company ltd, 1998) p.83 2iguh, ewulum &origbakpor, ‘revisiting the waste management framework in anambra state under the current dispensation’, journal of legal issues, idemili bar journal, 2021 vo. 2, p. 1 3 j u achor, improving the living environment in slum settlement, (lagos: bedan company ltd, 1998) p.83 mailto:uwadinekekalu@gmail.com mailto:uc.kalu@unizik.edu.ng mailto:christopherelom54@gmail.com kalu & origbakpor: institutional frameworks for medical waste management in nigeria: challenges and prospects 55 research centres related to medical procedure.4 medical waste includes waste generated by healthcare facilities like physician’s offices, hospitals, dental practices, laboratories, medical research facilities, and veterinary clinics. medical waste has been seen to be limited to infectious, hazardous, and any other wastes that are generated from health care institutions, such as hospitals, clinics, dental offices, and medical laboratories.5 longe and williams,6 defined medical waste to mean any solid waste generated in the diagnosis, treatment, or immunization of human beings or animal, in related research, production or testing of biologicals from all types of healthcare institutions, including hospitals, clinics, doctor (dental and veterinary) offices, and medical laboratories. according to research,7healthcare waste is the total waste stream generated in healthcare facilities, including solid waste and wastewater. section 48 of national environmental (healthcare waste control) regulation8 defined healthcare waste to mean wastes which are generated; a. during the diagnosis, treatment, immunization of humans, animals, in research or activities pertaining thereto or in the production or testing of biological experiments, and b. in medical and health institutions (dispensaries, hospitals, polyclinics and outpatient departments, dental clinics, veterinary stations, pharmacies, patent medical shops, etc.) as a result of use or contamination during diagnosing, medical treatment and prevention of diseases in humans and animals9. the law10 further defined healthcare waste generator to mean any person whose act or process produces healthcare waste and includes, but not limited to a provider of healthcare. the law defined waste management to mean the a. planning, handling, transportation, treatment, processing and disposal, including the supervision of these operations as well as the measures for protection of human health and the environment during the operation of the facilities and installations for waste disposal, and the care taken after the rumination of their operation and of its negative impact on human health and the environment, including waste handling, and b. administrative and operational activities that are used in handling, packaging, treating, conditioning, reducing, recycling, reusing, storage and disposal of waste11. from the above definitions, it appears that the common ground from the definitions is that medical wastes are substances produced or used in diagnosis, research, treatment of humans or animals in hospitals, veterinary offices or laboratories which are no longer in use or by virtue of their use lost their immediate value and therefore hazardous or are potentially hazardous if improperly managed. 3. institutions and bodies responsible for medical waste management in nigeria national environmental standards and regulation (enforcement) agency the agency is established by virtue of section 1 of national environmental standards and regulation (enforcement) agency act, 2007. the agency has the responsibility for the protection and development of the environment, biodiversity conservation and sustainable development of nigeria’s natural resources in general and environmental technology, including coordination and liaison with relevant stakeholders within and outside nigeria on matters of enforcement of environmental standards, regulations, rules, policies and guidelines. the functions of the agency are as contained in section 7 of the law12. it includes generally to enforce compliance with laws, guidelines and standards on environmental matters in nigeria. the agency also has powers to 4eh nyekwere, ‘legal assessment of the impact of the improper disposal of medical waste in nigeria’ nnamdi azikiwe university awka journal of international law and jurisprudence, 2012, vol 1, p.25. 5ms zarook, ‘medical waste management and control’, journal of environmental studies, january, 2012, american university of sharjah, uea, vol. 3, pp. 1625 – 1628, accessed online on 6th march, 2023. see also, us congress, office of technology assessment, ‘issues in medical waste management-background paper,’ us government printing office, washington dc, 1988 6 eo longe and a williams, ‘a preliminary study of medical waste management in lagos metropolis, nigeria’, iran journal of environmental health sciences and engineering, 2006, lagos, vol. 3, no. 2 pp.133-139. accessed online on 11th march, 2023. 7gawad m a alwabr, ahmed s al-mikhlafi, saif a. al-hakimi, and munira a dughish ‘determination of medical waste composition in hospitals of sana’a city, yemen’, journal of applied sciences and environmental management, 2016, yemen, vol.20 (2) 343-347. accessed on line at www.ajol.info on 11th march, 2023 by 2:00pm. 8 2021 9 national environmental (sanitation and waste control) regulation 2009 s. 106 10national environmental (healthcare waste control) regulation, 2021. 11ibid., section, 48. see also national environmental (sanitation and waste control) regulation 2009 s. 106 12 national environmental standards and regulation (enforcement) agency act, 2007 http://www.ajol.info/ african customary and religious law review (acarelar) 4 (2023) 56 establish mobile courts to expeditiously dispense cases of violation of environmental regulations13. the agency may establish monitoring stations or network to locate sources of atmospheric pollution and determine their actual or potential danger. the agency also has power to make regulations for the purpose of protecting public health and promotion of sound environmental sanitation14. courts/environmental court/tribunals the courts as being discussed here will include the federal, states and local courts created for the purposes of environmental protection. court here includes tribunals and ad hoc/mobile environmental courts. section 8, national environmental standards and regulation (enforcement) agency act, empowers the agency subject to the provisions of the constitution of the federal republic of nigeria, 1999 and in relation to other relevant judicial authorities establish mobile courts to expeditiously dispense cases of violation of environmental regulations15. the agency may establish monitoring stations or network to locate sources of atmospheric pollution and determine their actual or potential danger. section 13 of harmful waste (special criminal provisions, etc) act16 provides that the federal high court shall have exclusive jurisdiction to try the crimes specified in the act. at the states and local government levels, various health/environmental courts have been created to also determine issues involving degradation of the environment. although, practice revealed that majority of the environmental/health courts except the federal high court sits on adhoc basis. this is so, despite the high level of environment degradation cases on record across the nation. for instance, section 39 of ebonyi state environmental protection law 17established ‘ebonyi state environmental protection court’ to determine environmental offences under this law. in anambra state, by virtue section 30 of the aswama law 2015, the law established for the state a court to be known as the environmental sanitation court. the court is to trial and/or determine issues relating to environment and defaulters of the law. federal ministry of environment the federal ministry of environment of nigeria was established in 1999. its establishment was born out of the need to protect and preserve nigerian environment and ensure effective coordination of all environmental matters.18 the vision of the ministry is to be a nation that develops in harmony with the environment. the federal ministry of environment is headed by a ‘minister’ who is saddled with the responsibilities executing the policy objectives including regulations set out for health care waste management in nigeria. the ministry of environment also has the mandates to secure a quality environment conducive for health and wellbeing of citizens, fauna and flora. also has the duty to promote sustainable use of natural resources, promote research and development on issues that affect the environment, including maintenance of ecosystem, ecological processes and preserve biodiversity etc. the minister has also in the course of duties made several regulation that are geared at protecting the environment and curbing pollution related to healthcare/medical waste in nigeria. one of such regulations is national environmental (healthcare waste control) regulation, 2021. federal ministry of health the federal ministry of health of nigeria is one of the federal ministries concerned with the formulation and implementation of policies relating to health in nigeria. the federal ministry of health is headed by the ‘minister of health’ who is appointed by the president. the minister is assisted by the permanent secretary and other support staff. the functions of the ministry of health include development of plans and preparation of budget for the ministry. the ministry also monitors and evaluates programmes of government on health, projects and plan implementation. the ministry, in addition, conducts planning and coordinates human resources for health development, and coordinates national health management information system. the department of food and drugs services of the ministry formulates national policies, guidelines and strategies on food and drugs, and ensures ethical delivery of pharmaceutical services nationwide. health institutions nigeria operates a federal system of government where each component unit operates independently to an extent with the other. there are tertiary, secondary and primary health institutions in nigeria that are established by law at various levels. there are also private health institutions. some of these health institutions are specialized, while some are general in nature. being that the issue of health and environment falls within the concurrent list 13 section 8, national environmental standards and regulation (enforcement) agency act, 2007. 14 section 25, ibid 15 section 8 (f), national environmental standards and regulation (enforcement) agency act, 2007. 16 cap. h1 lfn, 2010 17ebonyi state environmental protection law law no. 009, 2015 18 see welcome remarks by engr. hassan musa, the permanent secretary, federal ministry of environment to the ministerial press briefing for the environment sector by the hon. minister of state for environment, held at naf conference centre, kado, abuja 1 on 31/1/2022 kalu & origbakpor: institutional frameworks for medical waste management in nigeria: challenges and prospects 57 both the federal, state and local government have stakes at making regulation and policy on health and environment. in doing that, these the federal, state and local government have established hospitals, veterinary offices, medical research/laboratory institutions where healthcare services are rendered to those in need of them. the laws in establishing these health institutions set out rules and regulations guiding their practice and activities. these institutions generate medical/health care waste on daily basis. it is the responsibility of the hospitals, research institutes, veterinary institutes etc. to manage wastes generated from their facility as waste generators. it is the responsibility of the health care institute as generator of medical waste to treat and dispose of all medical wastes generated from their facilities and in doing so, the law mandates them to manage these wastes in line with best environmental standards. states’ ministries of health/environment in some states of the federation, ministry of health and environment are merged together with a commissioner in charge, while in some, they are separated. where they are separated, it is the duty of the ministry of environment to enforce environmental protection laws of the state. in most cases, there is usually a department in the ministry saddled with the function of waste management/pollution control. for instance, anambra state waste management authority (aswama) law 2015 established the anambra state waste management authorities, which is an arm/department in the ministry of environment. the functions of the anambra state waste management authorities are as stipulated in section 6 of the law and it includes collection, processing, removal and safety disposal of domestic, hospital, commercial, institutional and industrial waste. in lagos state, the lagos state waste management authority law established the lagos state waste management authority which is a department under the lagos state ministry of environment. in ebonyi state, ebonyi state ministry of environment headed by the commissioner for environment is the body responsible for enforcement and regulation of waste management in the state. the said ministry of environment also has some other departments that carry out specific duties all aimed at enforcing the provisions of the law. departments of environmental health services/local government environmental protection committee the fourth schedule to the 1999 constitution of nigeria provides for the functions of the local government and made it as part of the functions of local government to; establish and maintain cemeteries, burial grounds and homes for the destitute or infirm, register births, deaths and marriages, provision and maintenance of public conveniences, sewages and refuse disposal, and provide and maintain health service. in fact, every local government area or council in nigeria has a department in charge of environment/waste management. in anambra state for instance, it is called department of environmental health services. these departments are headed by a director of environmental health services of the local government. the functions are to enforce health and environmental policies of the local government which includes medical/healthcare waste management and environmental sanitation. environmental/sanitation taskforce/officers at various levels; both state and local government levels in nigeria, authorities charged with waste management have created various bodies/committees or taskforce for the enforcement of its laws and policies. under the ebonyi state there is the compliance monitoring team (cmt) established as a task force to ensure compliance to the law.19 the compliance monitoring team is empowered to with or without warrant, require the production for examination any copies of any licence, permits, certificates or other documents required under this law or any regulations made thereunder; and may require the production for examination of any appliance, devices, or other items used in relation to the provisions of this law or any regulation made thereunder. the monitoring team can also arrest any person who they have reason(s) to believe has committed an offence under the law. in anambra state waste management authority law 2015, there the “public sanitation department” of the agency acts which act as the police of the authority in carrying out their functions, conduct searches, makes arrest, serve abatement, demand and or other notices on defaulters. again, recently, the anambra re is the state government through the ministry of environment also established and set up the operation clean and healthy anambra (ocha brigade). the ocha brigade is a task force established via bill passed by the anambra state house of assembly. the ocha brigade was established with the responsibilities of ensuring and enforcement of environmental cleanliness in all parts of anambra state in collaboration with the state ministry of health and environment. in imo state, there is the environmental transformation committee is the task force that monitor the enforcement of waste management. in enugu state, there is a special task force in the enugu state waste management authority that also help in the enforcement of enugu state waste management authority act. generally, the duties of these task force or special environment committee are similar. thus, these task force and committees serve as an institution for medical waste management in their respective jurisdiction. 19 section 27, ebonyi state environmental protection law 2015. african customary and religious law review (acarelar) 4 (2023) 58 the legislature the legislature is an arm of government that is saddled with the responsibilities of making laws for either the federal, states or local government in nigeria. section 4 of the 1999 constitution of federal republic of nigeria provides for the legislative power of the federal republic of nigeria which shall be vested in the national assembly which shall consist of the senate and house of representatives.20 in carrying out their constitutional duties, the various state houses of assembly made several waste/environmental sanitation and protection laws. at the local government level, the local government legislative council also makes laws. as noted earlier, the local government also have stakes in matters relating to waste and environmental protection. aside the law making functions of the legislature, they also undertake what is in popular parlance referred to as ‘oversight functions’. this oversight functions are aimed at assessing the level of compliance with laws, policies and programmes of government. there are also other bodies such as medical and dental practitioners council of nigeria, veterinary council of nigeria, nafdac, national orientation agency etc. 4. challenges faced by institutions in enforcement of medical/healthcare waste regulations in nigeria. there have been concerted efforts by government, individuals and even private sector all geared at ensuring clean environment devoid of wastes and its appurtenances. however, most of these efforts are being thwarted by some factors. in fact, it has been observed that the institutions saddled with the responsibilities of managing medical/healthcare waste in nigeria are faced with myriads of problem. some of the challenges are as follows; inadequate waste management skills/ sanitation staff/fund the responsibility of enforcing the provisions of national environmental (healthcare waste control) regulation, 2021 vest on the national environmental standards and regulations enforcement agency under the supervision of the federal ministry of environment. there are also other bodies both at the state and local government levels saddled with the responsibility of medical waste management in nigeria. observation revealed that these bodies lack adequate technical skills required for management of medical wastes in the present dispensation. that can be seen from the poor management of waste dumps located in various street corners of the country. for instance, the practice of waste treatments, incineration, pulverization, micro waving etc. are lacking in the in the medical sector. even where wastes treatment plants are available, it does not last long before it breaks down. one of the basic obstacles faced by the bodies in charge of medical waste management is inadequate staff/manpower to adequately carry out the responsibilities of inspection, evacuation, assessment, prosecution of offenders etc. the result is that the functions of medical waste management are carried out only to the ability of the few staff available. at the end, the major aspect of the duties of the enforcement bodies is left unattended to. judicial attitude as noted in the earlier part of this work, one of the challenges faced today enforcement of environmental legislation in nigeria is poor attitudes of the courts. the courts here include the conventional courts, tribunals and environmental protection courts. observation revealed that our courts appear to be are more interested in observing the letters of the law than ensuring that the intendments of the law is fulfilled. generally, the mischief which these laws intend to cure are the flagrant and indiscriminate disposal of medical wastes and environment pollution and degradation. in osagiede v dr. gharoro, university of benin teaching hospital management board and dr. s. a. ejide,21 the plaintiff alleged that the defendants in carrying out an operation on the plaintiff left in his stomach used broken needle which caused her severe pain., thus suffered damages. the court however dismissed the case on a technical ground that the plaintiff did not prove her case as claim was mathematically inconsistent with her claim of res ipsa loquitur. for instance, in the case of allar iron v. shell bp,22 a warri high court judge refused to grant an injunction in favor of the plaintiff whose land had been polluted by the defendant, because of the fact that according to the court, defendant’s activities were of vital economic importance to the nigerian economy and to restrain them would result to economic ruin or loss for the country. in faith okafor v attorney general of lagos state & anor,23asiegbu v anambra state government & ors24the courts declared restriction on movements during monthly environmental sanitation illegal. tumai25 noted that courts have not been proactive in interpretation of our environmental laws due to over reliance on legalism. 20 s 4(1), 1999 constitution of federal republic of nigeria as amended. 21 (2006) 25 nsqr 712 22 unreported suit no. w/89/71 at warri high court, 26th of november, 1973 23 (unreported) appeal no. ca/1106/2014, delivered by the court of appeal lagos division 0n 4th november, 2016 24 (unreported suit no. a/misc 310/2017) delivered on 13/3/2018 by high court of anambra state, awka. 25 m tumai, ‘strengthening locus standi in public interest in environmental litigation: has leadership moved from the united states to south africa?’ (2010) 6(2) law, environment and development journal 165. see also, p.k. oniemola and e o olowonomi, ‘applicant of doctrine of locus standi in proceedings for judicial review in nigeria, the gambia and canada’, (2014) 17(1), the nigerian law journal, 133. kalu & origbakpor: institutional frameworks for medical waste management in nigeria: challenges and prospects 59 defences in environmental laws section 1 (2) of the harmful waste (special criminal provisions etc) act of 1988 provides that ‘any person who without lawful authority; carries, deposits or cause to be carried, deposited or dumped, or is in possession for the purpose of carrying, depositing or dumping, any harmful waste on any land or in any territorial waters or contagious zone or exclusive economic zone of nigeria or its inland waterways; or transport or cause to be transported or is in possession for the purpose of transporting any harmful waste; or imports or causes to be imported or negotiates for the purpose of importing any harmful waste; or sells, offers for sale, buys or otherwise deals in any harmful waste, shall be guilty of a crime under this decree’.26 corruption just as is obtainable in any other sector, sanitation staff often engage in taking/soliciting bribe from environmental offenders in order to shield them from prosecution or punishment. a clear example is where a person is apprehended by enforcement agent while dumping of medical waste/refuse in unapproved site, the common practice is that offenders ‘settle’ the officers by way of bribe or the officers informing you that once you settle them, the offence will not go further or to court. also, prosecutor in the courts/environmental protection court prefer bribe-induced out of court settlement of criminal offences under the law. the implication is that once the offender settles the prosecutor, even without abating the offending act, the charges are withdrawn from court. also, operators of waste generators bribes sanitation officers in most instances so as to prevent them from coming for inspection. sanctions it is quite disheartening that despite the devastating effects of improperly managed medical wastes to mankind and the environment, the penalties stipulated for various environmental offences in our laws are ridiculously low. the presence of these low penalty provisions in our laws rather fuels the muse of defaulters. the offender would simply elect to pay the meager fine or serve the terms of imprisonment than abate the offending act. urban planning urban planning is a veritable tool in waste management. where there is poor town or physical planning, the challenges of waste management abound. in most part of the country, there are no proper physical planning resulting in erection of health facilities, residential buildings, industrial sites and office buildings indiscriminately. as a result, there is the difficulty in collection, disposing or managements of all sorts of wastes generated from these facilities. worst still, there are bad streets ring-roads which makes some roads inaccessible to waste disposal vans. at the end, some of the waste dumps are abandoned without evacuation for long periods of time. the result is breeding of disease vectors and pollution. waste dump/disposal sites closely related to urban planning is the issue of waste dump/disposal sites. as is the practice, medical facilities are expected to provide waste dumps/bins where waste generated in their facilities are collected for disposal. at an interval, or when the waste bin is filled up, the waste bin is emptied into waste vans and taken to a final disposal site. but observation revealed that some health care facilities do not have proper waste dump/bins within their facility. importation of fairly used/expired equipment this is one of the major problems that militate against proper medical waste management in nigeria today. these products are wastes in their respective countries of importation. the ugly part is that they are hardly exported to any other country after use in nigeria. at the end of the day, these “wastes” ends up in our environment, causing a lot of problems. the federal government is urged to place embargo on purchase or importation of used hospital equipment including expired pharmaceuticals in nigeria. this can be achieved with solid collaboration with the nigerian custom service. economic consideration as noted, while discussing poor judicial attitude as a problem to waste management, the researcher noted that the court in allan iron v. shell bp,27 where a warri high court judge refused to grant an injunction in favor of the plaintiff whose land had been polluted by the defendant was because of the fact that the defendant’s activities were of vital economic importance to the nigerian economy and to restrain them would result to economic ruin or loss for the country. also, more often than not, the ministry after considering the financial loss 26 harmful waste (special criminal provisions etc) act of 1988 cap. h1 lfn 2010. 27 unreported suit no. w/89/71 at warri high court, 26th of november, 1973 african customary and religious law review (acarelar) 4 (2023) 60 that may be occasioned to the state if for instance a revenue generating medical facility or medical waste treatment facility is sealed up until they abate a particular nuisance, will rather allow the nuisance to continue than loose revenue. 5. conclusion and recommendations the issue of medical waste management and general environmental protection is very crucial to development. although there were efforts by government on the protection of the environment vis-a-vis management of healthcare wastes in nigeria, including the establishment of national environmental standards and regulation (enforcement) agency saddled with role of enforcement of the national environmental (healthcare waste control) regulation, 2021 and other policies, however the obvious fact is that our health facility healthcare wastes are still not properly managed, resulting to increase in pollution and waste related infectious disease. that explains the observation of an environmental activist; olukanni28 in his article that,29 despite achievements of the past, the present times can testify to the fact that environmental issues have since fallen off our radar. generally, this paper found that the institutional frameworks for medical waste management in nigeria are not living up to their responsibilities. further observation showed that some factors are militating against them in the discharge of their roles. it is recommended that government at all level should embark on training and retraining of sanitation staff including operators of medical waste management facilities. the ministry of environment at both state and federal level should employ/engage the services of more experts with requisite medical waste management skills and also procure modern medical waste management equipment. in addition, government should provide adequate fund/budgetary allocation for procurement/maintenance of modern medical waste disposal/processing equipment in nigeria. the national environmental standard regulation and enforcement agency act, 2007 be amended to provide for a body to specifically enforce the provisions of national environmental (healthcare waste control) regulation 2021. this will ensure speed and thorough monitoring of the activities of medical wastes generators and treatment facilities. national environmental standard regulation and enforcement agency has enormous tasks in environmental protection in nigeria generally. these responsibilities are obviously too much task for the agency. the sanctions/penalties for offenders under the national environmental (healthcare waste control) regulation 2021 are obviously ridiculous and very low considering the devastating effects of improper or poor medical waste management. as a result, offenders would prefer to pay the fines than abet the nuisance constituted by their actions. our courts should also be made to understand the need to be more flexible in environmental issues/protection and avoid undue adherence to legalism in determining cases of environmental pollution especially as it pertains to healthcare waste in nigeria. proper and effective physical urban and regional planning should be made and enforced by the authorities. with this, portions of lands will be made available as dumpsite or treatment facilities of medical wastes. the government should collaborate with other relevant authorities to out rightly ban or regulate importation of non-recyclable medical substances and equipment into nigeria. in addition, embargo should be placed on importation of fairly used or expired medical product or equipment into the country. medical/waste management laws be harmonized and amended to reduce or limit the excessively wide and numerous defences, available to offenders by the law. facilities generating medical wastes should not only be made to pay extra charges for generating prospective pollutants, but must conduct environmental impact assessment as required by law before setting up such facilities. the polluter pay principle introduced by the national environmental (healthcare wastes control) regulation, 2021 be strictly implemented and enforced. the tax relief be granted to private medical waste recycling plants and companies as well as financial aids in form of grants and low interest rate loan facilities to individual aspiring to set up medical wastes recycling plants in nigeria. it is the belief of this paper that if the recommendations are followed, nigeria health sector/waste management institutions will bounce back and improve in their roles of management of medical wastes, and by implication set the country on the path of clean, healthy and sound environment where life will not be harsh, nasty and brutish. 28 a. olukanni was the vice chairman of environmental ngo, fight against desert encroachment (fade) in honorary capacity and current director-general of the nigerian association of chambers of commerce, industry, mines and agriculture. 29 a olukanni, ‘bringing back environmental issues to centre stage’, published in daily sun newspaper, thursday, 27 june, 2019) p.35. ojilere; adekilekun & umeh: violation of dignity of vulnerable women in african customary law and socio-religious mythology page | 44 violation of dignity of vulnerable women in african customary law and socio-religious mythology* abstract african customary law and socio-religious mythology are manifest in superstitious beliefs, myths, customs, rites, mindsets, local traditions and sometimes, religion. they are largely unwritten, ancient in origin and inherited across generations. they sync with patriarchy and define human dignity on the basis of gender and vulnerability. this paper is a socio-legal discourse. it uses random examples to explore the violation of dignity of vulnerable women and girls in african customary law and socioreligious mythology. it argues that by the practical application of myths and customs, little or no premium is placed on the human dignity of vulnerable women and girls, to wit, widows, women with albinism, unmarried spinsters, lesbians, barren and childless women, as well as women who have only daughters and no sons. it concludes that african myths and customs dehumanize, demean and devalue vulnerable women and girls contrary to standard guarantees of right to human dignity in domestic and international law. the paper significantly underlines the gap between the rhetoric and reality of gender equality in africa. keywords: human dignity, vulnerable women, customary law, socio-religious mythology, africa. 1. introduction african mythology is manifest in customary law which comprises superstitious beliefs, myths, customs, as well as religious and cultural traditions inherited from time immemorial and prevalent in individual societies. it is largely unwritten, unscientific, ancient in origin, and passed from one generation to another. these myth symbolize the african traditional allegiance and belief in the unchangeable wisdom of their ancestors as their ‘gods’ or unseen divine.1 they also accentuate the decisive role of ancestors as formidable spiritual forces for directing and determining the affairs of the living.2 this is the extent to which customary law and socio-religious mythology impact in the beliefs, habits, rites and practices of people in african societies including the latitude of dignity which vulnerable women and girls can be entitled to. it is therefore understandable that in kharie zaidan v. fatima khalil mohssen3 teslim elias (then cjn) defined customary law as: ‘the system of law not being a law enacted by any competent legislature in nigeria, but which is enforceable and binding within nigeria as between the parties subject to its sway’. of a truth, african customary law and mythology place little or no premium on the dignity of vulnerable women and girls, especially widows, women with albinism, unmarried women (older spinsters), lesbians, childless women, barren women as well as women who have only daughters and no sons. these violations to dignity come in diverse forms and compounded by prevalent patriarchy which support discrimination and inequality contrary to standard guarantees of the right to human dignity in domestic and international law.4 2. meaning of human dignity simply put, human dignity means ‘human worth’. the word, dignity is derived from the latin word 'dignitas' meaning 'worth' or ‘self-respect’.5 it underlines the intrinsic value of the human person irrespective of vulnerability in terms of race, gender, disability, marital status, sexual orientation, caste, skin pigmentation or other status. michael rosen and w. parent rightly described dignity as the *by aloy ojilere, phd, bl, lecturer, faculty of law, imo state university, owerri, nigeria. e-mail: aloyojilere@yahoo.com *kamal adekilekun, phd, bl, researcher and private legal practitioner based in yenagoa, bayelsa state. email: saymewell33@gmail.com; and *samson umeh, phd, bl, researcher and private legal practitioner based in owerri, imo state. e-mail: elisarahumehsam@yahoo.co.uk. 1 ojilere, a., ‘african mythology in the violation of life and dignity of albino minorities in nigeria’ (2018) 1(1) university of the gambia law review, 235-247. 2 uchendu, v. c. (1976). ancestorcide! are african ancestors dead? ancestors, 283. 3 (1973) 11 sc 1 at 21. 4 ojilere, a., ‘quest for a sustainable legal framework for the protection of women’s right to dignity in nigeria: lessons from india and south africa’ (2015) (doctoral dissertation, university of malaya). http://studentsrepo.um.edu.my/6384/1/aloy_ojilere-_2015_submitted_final_phd_thesis.pdf (18/5/2021). 5 www.latin-dictionary.org/dignitas (14/5/2021). mailto:aloyojilere@yahoo.com mailto:saymewell33@gmail.com mailto:elisarahumehsam@yahoo.co.uk http://studentsrepo.um.edu.my/6384/1/aloy_ojilere-_2015_submitted_final_phd_thesis.pdf http://www.latin-dictionary.org/dignitas acarelar 2 (2021) page | 45 ‘absolute, priceless, unconditional worth’ of human beings.6 article 4 of the african charter on human and peoples’ rights, 19817 state that: ‘human beings are inviolable. every human being shall be entitled to respect for his life and the integrity of his person. no one may be arbitrarily deprived of this right.’ its article 5 similarly state that: ‘every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. all forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.’ section 34 of the constitution of the federal republic of nigeria, 1999 (as amended) guarantees of the right to human dignity by providing that ‘every person is entitled to the dignity of his/her person and no one shall be subjected to torture, inhuman or degrading treatment.’8 the right to human dignity, equality and non-discrimination are also provided in core un documents and human rights instruments,9 particularly the universal declaration of human rights (udhr) and the united nations charter.10 the cumulative import of these instruments is the compound guarantee of gender equality and dignity of all persons including women and children. for the avoidance of doubt, the violation of dignity of vulnerable women in african mythology takes one or more of several forms depending on the nature of vulnerability but the commonest forms include: humiliation, discrimination, isolation, ostracization, murder, jesting and verbal abuse, physical violence, abandonment, refusal of intermarriage, organ harvest, traditional widowhood rites, derogatory nicknames or demeaning referencing. this paper posits that irrespective of form or pattern, it is illogical to violate or compromise the dignity of vulnerable women and girls or anybody at all on the basis of mere customs, superstitions or myth.11 women and girls unarguably, women’s dignity is the core of women’s rights in human rights discourse. it is encased in gender equality which is listed as no. 5 of the un sustainable development goals (sdgs).12 the 1993 vienna declaration of the un world conference on human rights states clearly that the human rights of women and of the girl-child are an inalienable, integral and indivisible part of human rights. nonetheless, prevalent mythology and customary law in most african societies view women and girls as an addendum to men and boys. a common reasons for this is wrong notion is the belief in patriarchy and male primogeniture which promote the thinking that the world is typically ‘a man’s world’ and 6see parent, w., ‘book review: dignity: its history and meaning, written by michael rosen’ (2014) 11(3) journal of moral philosophy, 361-363, at 361, referring to the famous kantian definition. 7 adopted 27 june 1981 and came into force 21 october 1986, oau doc. cab/leg/67/3 rev. 5; 1520 unts 217; 21 ilm 58 (1982). domesticated in nigeria as african charter on human and peoples’ rights (ratification and enforcement) act, chapter a9 laws of the federation of nigeria 2004. 8section 33 thereof guarantees the right to life while section 42(1) (a) guarantees the right to non-discrimination against any private, public, legislative or administrative action or any law, on the basis of ethnic group, place of origin, sex, religion or political opinion. section 43 guarantees the right to acquire and own immovable property. 9allied provisions on human dignity, gender equality, prohibition of torture, degrading treatment and non-discrimination are contained in the convention against torture and other cruel inhuman or degrading treatment or punishment 1984, the international covenant on economic, social and cultural rights (icecsr) 1966, the convention on the rights of the child (crc) 1989, the international covenant on civil and political rights (iccpr) 1966, slavery convention of 1926 (as amended), and supplementary convention on the abolition of slavery, slave trade, and institutions and practices similar to slavery. 10 see articles 1, 8, 13, 55, 56, 62, 68 and 76 of the un charter wherein the un is variously obliged to promote equality and to perform its functions and responsibilities of solving international socio-cultural problems as well as respect for human rights and for fundamental freedoms for all without distinction as to race, creed or sex, among others. article 1.3 and 1.4 specifically mandate the un ‘to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’ as well as ‘to be a centre for harmonizing the actions of nations in the attainment of these common ends.’ article 13.1.b enjoins the un general assembly to promote international co-operation in the social, cultural, religious and health fields, among others, and ‘assist in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion’. 11 ojilere, a., & gan, c. c., ‘learning from the indian judiciary: new directions for securing nigerian women’s right to dignity’ (2015) 31(1) asian women, 81-106; ojilere, a., & nnadi, i., ‘judicialization of the fundamental rights and the directive principles of state policy in india: road map for the globalization of women’s dignity and other rights in nigeria’ (2018) 13(1) university of jos law journal, 150-163. 12 united nations development programmes (undp) sustainable development goals. www.undp.org/content/dam/undp/library/corporate/.../sdgs_booklet_web_en.pdf (8/5/2021). http://www.undp.org/content/dam/undp/library/corporate/.../sdgs_booklet_web_en.pdf ojilere; adekilekun & umeh: violation of dignity of vulnerable women in african customary law and socio-religious mythology page | 46 family ancestry follows the male lineage, hence, society can dispense with women and girls.13 by this unfounded thinking, human rights are seen as men’s rights while women’s rights are believed to ensue from the benevolence of men.14 metaphorically, men are also likened to gold while women are likened to silver, and the question is often asked to disparage women: how many silver make one gold? this is a subtle way of inferring, albeit erroneously, that no number of female children is equal to a male child.15 as such, among africans, the birth of a son is heralded with much excitement and considered as a much greater blessing than the birth of a daughter. by the culture of ‘son preference’ common in most african societies, baby girls are sometimes starved of food so that baby boys will have enough to eat.16 the practice of female genital mutilation (fgm) is also a myth-belief meant to reduce the propensity of girls to become promiscuous when they grow up, albeit, it is unfounded, without medical or scientific proof, and merely superstitious.17 core african societies also assume that a married woman is, literally, yet ‘standing on one leg’ in the marriage until she gives birth to a son. worse still, in some igbo communities, people go to the extent of declaring that a woman that has given birth to only female children is still childless.18 this afrocentric notion of son-preference has endured from time immemorial and continues to promote gender inequality and discrimination against women and girls across patriarchal africa.19 it has equally pushed some men into polygamy, even against their ordinary wish. this is also the african trado-religious philosophy that educating or training a girl-child is as futile as watering a neighbor’s garden, because she will eventually be married out to someone else. the violation of the dignity of girls in african customary law extends to the unfounded myth-belief that sexual intercourse with a virgin girl can cure serious infections like hiv/aids.20 before the 2014 landmark decisions of the supreme court of nigeria in anekwe v. nweke21 and ukeje v. ukeje22 prevalent igbo customary law disentitled women and girls from inheriting land or landed property of a deceased husband or father.23 this practice was also prevalent among the yoruba, hence, in the old case of suberu v. sunmonu24 the nigerian supreme court upheld the yoruba customary law which disentitled a wife from inheriting her deceased husband’s property.25 prevalent african customary law and socio-religious mythology generally recognize men as ‘head’ of every family even where the man is virtually an invalid, younger in age than the women in the family, and even in circumstances where the wife or a woman is the de facto ‘breadwinner’ of the family. this is based on the afrocentric patriarchal inequality whereby women are considered inferior to men, and 13 ojilere, a., ‘the implication of customary law and socio-religious mythology on the rights of women in nigeria’ (2008) 1(1) nigerian journal of public law, 257-266. 14 charlesworth, h., ‘human rights as men’s rights’ in women's rights human rights (2018) pp. 103-113. routledge. 15 ojilere, a., ’socio-cultural mythology on women dignity and the rhetoric of globalization of human rights in nigeria’ in chapter 25 of u.s.f. nnabue (ed.), thematics on the law of development, (2017) pp. 396-406. 16 oyekanmi, f. d., ‘socioeconomic dimensions of gender equality in nigeria’ in s. o. akinboye (ed.), paradox of gender equality in nigerian politics: essays in honour of dr. (mrs.) veronica adeleke (2004) pp. 41-61. lagos, nigeria: concept publications ltd. 17 ekpatt, a. o., ‘female genital mutilation and the influence of traditional cultural practices against women: experience from ibibio, akwa ibom state of nigeria’ in handbook of research on the impact of culture in conflict prevention and peacebuilding (2020) igi global, pp. 26-44. 18 anyanwu, o., & ugo-ochulo, n., ‘contemporary discriminatory linguistic expressions against the female gender in the igbo language’. available at: http://lass.suda.edu.cn/_upload/article/files/32/3d/a95bef7b4312aaedcb31884adf43/e5bb500e8042-4b65-b587-a3ed1b3f9557.pdf (17/5/2021). 19 ojilere, a., & gan, c. c., (n. 14). 20 ojilere, a., ‘the socio-legal implications of the fight against hiv/aids in nigeria’ (2008) 1(1) nigerian journal of food, drug and health law, 84-106; ojilere, a., & chukwumaeze, u. u., ‘cedaw and gender-based discriminations against women in nigeria’ (2010) 3(1) nigerian journal of food, drug and health law, 95-105. 21 (2014) 234 lrcn 34. 22 (2014) 11 nwlr (part 1418) 384; (2014) 234 lrcn 1. 23 under the extant customary law and socio-religious mythology prior to these two judgements women were not recognized as independent personality but rather as the appendage of a father or mother, and therefore could not enjoy inheritance right or succession to the estate of a deceased husband or father because she is even considered as a part of the deceased’s estate to be inherited by male family members. 24 (1957) 2fsc. 25 in today’s world, this would be a violation of local and international law including article 16 of the convention on the elimination of all forms of discrimination against women (cedaw), which empowers women to own or alienate immovable property anywhere. http://lass.suda.edu.cn/_upload/article/files/32/3d/a95bef7b4312aaedcb31884adf43/e5bb500e-8042-4b65-b587-a3ed1b3f9557.pdf http://lass.suda.edu.cn/_upload/article/files/32/3d/a95bef7b4312aaedcb31884adf43/e5bb500e-8042-4b65-b587-a3ed1b3f9557.pdf acarelar 2 (2021) page | 47 it is permissible for a man to dominate, threaten, chastise, beat, or even rape his wife.26 instead, when a man beats or rapes his wife customary law simply considers it an appropriate way for him to ‘recount his money’ to ensure that it is ‘complete.’27 this patriarchal myth underlines a man’s authority to exercise control and proprietary right over his wife. as such, a man can donate his wife for the sexual pleasure and comfort of a special guest or august visitor as a sign of utmost hospitality and respect. this may not be unconnected to the patriarchal customary belief that by paying a woman’s bride price in marriage, she absolutely becomes the property of her husband.28 on the other hand, however, it is a taboo for a woman to stand up to, beat, or disrespect her husband in public or at home before family members.29 women are also forbidden to eat chicken rump. when drinking palm wine in the presence of men, custom requires women to show respect by stooping down low and not stand. customary law and mythology do not also recognize the sexual or reproductive dignity of women. as such, it is forbidden for a wife of a customary law marriage to negotiate sexual convenience, number or spacing of children in the marriage, or insist on any form of safer sexual relation with her husband. instead, she is to act as his servant and to do all his biddings including sex whenever he demands of it, and not to refuse to get pregnant whenever he decides.30 no doubt, these myths are unfounded, obnoxious and based on mere superstitions which roundly dehumanize and demean the utmost pride and dignity of women and girls. some islamic socio-religious practices also violate the dignity of women31 and girls given relevant quranic injunctions on wife beating/chastisement,32 wife confinement (purdah),33 26 in nigeria for instance, spousal rape is endorsed by section 357 of the criminal code act cap 77, laws of the federation of nigeria, 1990 (applicable in the southern part of nigeria) which defines rape as unlawful carnal knowledge of a woman or girl by any person without her consent, or with her consent, if it was obtained unlawfully. however, its section 6 illogically define unlawful carnal knowledge as ‘carnal connection which takes place otherwise than between husband and wife.’ 27 antai, d., ‘controlling behavior, power relations within intimate relationships and intimate partner physical and sexual violence against women in nigeria’ (2011) 11(1) bmc public health, 511. 28 see staveren, i. v. and ode bode, o., ‘gender norms as asymmetric institutions: a case study of yoruba women in nigeria’ (2007) 41(4) journal of economic issues, 903-925. 29 see olong, m. a., ‘cultural practices and traditional beliefs as impediments to the enjoyment of women’s rights in nigeria’ (2009) 1 (1) journal of contemporary legal issues, 117-131. 30 ojilere, a., (n. 16). 31 arabian, a., ‘the rights and duties of spouses in viewpoint of koran and jurisprudence’ (2016) 6(1) international journal of academic research in business and social sciences, 196-209. 32qur'an 4: 34, interpreted literally, suggests that some form of beating is an appropriate punishment for a husband to administer to a disobedient wife. contemporary muslim scholars, however, interpret this provision differently. see: dunn, s., & kellison, r. b., ‘at the intersection of scripture and law: qur'an 4: 34 and violence against women’ (2010) 26(2) journal of feminist studies in religion, 11-36; jalajel, d. s., & azid, t., ‘wife beating in islamic law: re-evaluating the illocutionary force of the imperative verb in qur’an 4: 34’ (2020) world scientific book chapters, 579-594.section 55 (1) (b) of the nigerian penal code (cap c3 laws of the federation 2004) also permits a husband to beat/chastise his wife as long as it does not cause her grievous bodily harm. this provision was endorsed by a nigerian court of appeal in akinbuwa v. akinbuwa, (1998) 9 nwlr (pt 564)100. 33 purdah, means curtain. it is the word most commonly used for the system of secluding muslim women and enforcing high standards of female modesty in islam. see papanek, h., ‘purdah: separate worlds and symbolic shelter’ (1973) 15(3) comparative studies in society and history, 289-325. by this practice, a man is permitted to lock-up his wife at home and away from public interaction or socialization. the practice has also become controversial, hence, it has been described as the extreme manifestation of the moral double standard which requires strict virginity and fidelity of women. see white, e. h., ‘purdah’ (1977) frontiers: a journal of women studies, 31-42. ojilere; adekilekun & umeh: violation of dignity of vulnerable women in african customary law and socio-religious mythology page | 48 child/forced marriage,34 verbal divorce/instant divorce (triple talaq)35 and the insistence on hijab36 as dress code for muslim women and girls.37 on the basis of the foregoing, islamic scholar rafatu abdul hamid insists that ‘one of the major obstacles that have impeded the progress of man towards freedom and peace is that of the bondage to his tribal customs and traditions, some of which have continuously ignored the basic human rights of others.’38 other forms of degrading treatment and practices which violate the human dignity of women and girls include: polygamy, forced shaving of hair, widow inheritance, female genital mutilation, ear piercing, nrachi nwanyi custom (among the ibos) where a father keeps any of his daughters in the family to remain unmarried and bear him male children who can be his heirs.39 such custom is dehumanizing and outright demeaning because it interferes with the dignifying right of the girl to marry and found a family.40 they also promote violence against women and girls thereby justifying the often-held view that african culture is not only oppressive and rigid to women but also archaic and altogether retrogressive.41 as such, the central argument of this paper is true, namely, that african mythology and customary law are based on mere superstition compounded by patriarchy, and grossly violate the right to dignity of vulnerable persons including women and girls.42 the general violation of dignity of women under customary law and socio-religious mythology was ably underscored by former chief judge of imo state when he wrote that: ‘women all over the world and from time immemorial have been objects of discrimination by men and the laws men make’ and that ‘this discrimination is inherent in the myths and folklore, in the culture, in the tradition and in the way of life of many human communities.’ 43 the failure of african governments to achieve gender equality and human dignity in sync with relevant sustainable development goals (sdgs) has also been blamed on intractable patriarchal cultures.44 34 ordinarily, marriage is the voluntary union of one man and one woman to the exclusion of all others, wherein the mutual consent of the parties is sine qua non. however, islam permit parents and guardians to choose husbands for their underage or virgin daughters, irrespective of their own choices or opinion. as such, young or teenage girls can be forced into an unacceptable marriage, possibly for the economic or other benefit/interest of her family. this practice is also controversial and contested. see: fayokun, k. o., ‘legality of child marriage in nigeria and inhibitions against realisation of education rights’ (2015) 12 us-china l. rev., 812; braimah, t. s., ‘child marriage in northern nigeria: section 61 of part i of the 1999 constitution and the protection of children against child marriage’ (2014) 14(2) african human rights law journal, 474-488. 35 triple talaq is the islamic practice under which a muslim man can divorce his wife instantly and verbally by simply uttering ‘talaq’ three times, that is, ‘i divorce you, i divorce you, i divorce you’. this practice demeans womanhood and compromises the dignity of a wife. this practice is also controversial and highly contested. see: ahmad, n., ‘a critical appraisal of ‘triple divorce’ in islamic law’ (2009) 23(1) international journal of law, policy and the family, 53-61; hussain, s., ‘triple talaq: a socio-legal analysis’ (2010) 1(1) ili law review, 130. 36 islamic robe/flowing gown which covers the entire body of a female and sometimes the face, in order to conceal her beauty (for married muslim women) and make them her ‘invisible’ to other men. 37 this practices has, however, become controversial in recent times, partly because the qur'an offers so little guidance on proper dress even though the hijab may actually depict modesty in the ‘covering’ of women. see abdul hamid, r., ‘islam and cultural interferences in the lives of the nigerian women’ (2014) 4(17) research on humanities and social sciences, 1-7. 38 ibid. 39 igwenyi, b. o., & udu, e. a., ‘ukeje v. ukeje: settling other issues on inheritance in nigeria’ (2020) 4(2) african journal of law and human rights, 22-32. 40 ibid. 41 ngira, d. o., ‘the implication of an african conception of human rights on the women rights movement: a bottom-up approach to women's human rights protection’ (2018) e. afr. lj, 128. 42 sewpaul, v., ‘social work and human rights: an african perspective’ in human rights and social equality: challenges for social work (2016) pp. 35-50. routledge. 43 see hon. justice g.g.i. orjiako (rtd), opening address presented at a seminar on discriminatory laws and practices against women in nigeria held in owerri in 1995; (lagos: constitutional rights project, 1995) at p.43. there are, however, contrary findings that sometimes men are the actual victims of domestic violence perpetrated by women. see: ojilere, a., nkwoh, j., & obiaraeri, n. o., ‘domestic violence victimization in nigeria: the often ignored perspective’ (2019) 5 (1-2) international journal for intersectional feminist studies, 29-40. 44 merry, s. e., ‘constructing a global law‐violence against women and the human rights system’ (2003) 28(4) law & social inquiry, 941-977 at 947. acarelar 2 (2021) page | 49 widows another vulnerable group whose right to human dignity is compromised by customary law and socioreligious mythology is widows. by the prevalent customary law in some communities, a widow is to be inherited as ‘wife’ by her stepson or any male family member or brother of her deceased husband, otherwise, she may be denied appropriate care or forced out of the family especially if she has no son or if her children are still young. the traditional widowhood rite in some cultures compel a widow to drink the bath water of her husband’s corpse before his burial, as a form of traditional ‘oath taking’ that she had no hand in his death. it is also customary in most parts of igboland that when a man dies his widow is taken to the backyard where the hair on her head, pubic area and arm pit will be shaved clean by another widow. the widow is also made to sit on a mat or bare floor dressed in some tattered clothing, and would not have a proper or full bath until after her husband’s burial. within the period of mourning the widow is also considered unclean, isolated and compelled to stay at home and seated in a particular corner of the house daily until her husband is buried .45 regrettably, these rites apply irrespective of the widow’s academic, financial or socio-political standing, otherwise, she may be expelled or ostracized from the village or community and ejected from her matrimonial home. her children may also be denied the right to inherit their late father’s estate.46 it is, however, ironical that oftentimes, these dehumanizing rites are superintended by the elderly widows in the family or community who also ensure compliance therewith.47 it is therefore understandable why the discourse on widow inheritance across africa has been dominated by the concepts of patriarchy, male chauvinism, and oppression of women.48 the dehumanization of widows in african mythology extends to discrimination in the right of succession and inheritance of property. prior to the 2014 decision of the supreme court of nigeria in anekwe v. nweke49 widows were not entitled to inherit the estate of their late husband under customary law.50 instead, they were considered as chattels and part of the deceased’s estate to be inherited by the males. there are also comparative findings that across africa, widows face more restrictions, and endure the most humiliating rituals in relation to dress codes, personal hygiene, eating food, sexual activity, ritual seclusion, isolation, discrimination, and oppression than widowers.51 for instance, in uganda, widowhood is highly stigmatized among younger adults because of its associations with possible hiv infection.52 also, while the sexual choices of widows are relatively restricted even when they are still of reproductive age, there is a general consensus that widowers are expected, and even encouraged to renew their sexual activity or remarry soon after mourning their dead spouses.53 this paper therefore concedes that african traditional widowhood rites lack empirical essence and are simply meant to demean the widow and compromise her human dignity.54 45 ohiaege, m. r. b., ‘widowhood practices in south-eastern nigeria: an aspect of women exclusion in leadership, governance and development’ (2017) 3(1) gouni journal of management and social sciences, 35–52. 46 ajayi, l. a., olanrewaju, f. o., olanrewaju, a., & nwannebuife, o., ‘gendered violence and human rights: an evaluation of widowhood rites in nigeria’ (2019) 6(1) cogent arts & humanities, 1676569. 47 akinbi, j. o., ‘widowhood practices in some nigerian societies: a retrospective examination’ (2015) 5(4) international journal of humanities and social science, 67-74. 48 amone, c., ‘widow inheritance in northern uganda’ (2021) patriarchy and gender in africa, 95. 49 (2014) 234 lrcn 34. 50 ojilere, a., onuoha, r., & igwe, t. i., ‘new directions for securing african women’s right to property under customary law: the case of nigeria’ (2019) 35(1) asian women, 95-119; enabulele, a. o., & ewere, a. o., ‘liberating nigerian widows from prejudiced rules of succession upon intestacy-whither the supreme court of nigeria?’ (2019) 2 glr, 92; uwaezuoke, c. n., ‘inheritance rights to real property under igbo land customary law: did the supreme court ever symmetrize gender?’ (2019) 1(1) nigerian journal online-published articles. available at: https://nigerianjournalsonline.com/index.php/published_articles/article/viewfile/486/477 (20/5/2021). 51 sossou, m. a., ‘widowhood practices in west africa: the silent victims’ (2002) 11(3) international journal of social welfare, 201-209; ewelukwa, u. u., ‘post-colonialism, gender, customary injustice: widows in african societies’ (2002) 24 hum. rts. q., 424. 52 nyanzi, s., emodu-walakira, m., & serwaniko, w. (2009). the widow, the will, and widow-inheritance in kampala: revisiting victimisation arguments. canadian journal of african studies/la revue canadienne des études africaines, 43(1), 12-33. 53 nyanzi, s., emodu-walakira, m., & serwaniko, w. (2009). the widow, the will, and widow-inheritance in kampala: revisiting victimisation arguments. canadian journal of african studies/la revue canadienne des études africaines, 43(1), 12-33. 54 manala, m. (2015). african traditional widowhood rites and their benefits and/or detrimental effects on widows in a context of african christianity. hts theological studies, 71(3), 01-09. https://nigerianjournalsonline.com/index.php/published_articles/article/viewfile/486/477 ojilere; adekilekun & umeh: violation of dignity of vulnerable women in african customary law and socio-religious mythology page | 50 women with albinism albinism, which is more scientifically known as oculocutaneous albinism, is a natural birth defect55 which occurs as a result of lack of melanin pigment.56 it typically changes the colour of the skin,57 eyes and hair texture,58 and sometimes causes blurred or impaired vision due to high sensitivity to the sun.59 experts opine that the commonest form of albinism is the inherited oculocutaneous albinism (oca).60 persons with albinism are commonly called albinos, a term which some international human rights advocates consider rather inhuman and derogatory.61 this paper concedes that using the phrase, albino women somehow victimizes affected persons because it places their ‘status’, condition or physical challenge before their person. instead, the phrase women with albinism seem more appropriate as it rightly places the person before their status or condition.62 although albinos are human beings and albino rights are human rights, african customary law and socio-religious mythology include the belief that albinism is ‘a curse’ and that albinos women are witches, mystery beings of special spiritual, magical and mystical consequences, 63 and that being ‘different’ from other human beings, they are suitable for ritual sacrifice.64 it is further believed that sleeping with an albino woman is a sure cure for serious infections including hiv/aids,65 hence, women and girls with albinism are particularly vulnerable to predatory men for rape and sexual molestation.66 there are findings that the proportion of albino women who are married is ‘very low’ in nigeria because male suitors are reluctant to marry them.67 in burundi, uganda and tanzania, they are treated as witches, and often kidnapped for organ harvest, killed for rituals or otherwise simply murdered to ensure extermination of future albinos.68 albinos are stigmatized, prejudiced and resented69 alongside their parents and family members.70 as 55 okulicz, j., shah, r., schwartz, r., & janniger, c., ‘oculocutaneous albinism’ (2003) 17(3) journal of the european academy of dermatology and venereology, 251-256. 56 murray, b. h. ‘albinism in africa: a medical and social emergency’ (2015) 7 international health, 223-225; benyah, f., ‘equally able, differently looking: discrimination and physical violence against persons with albinism in ghana’ (2017) 30(1) journal for the study of religion, 161-188. 57 kiprono, s. k., chaula, b. m., & beltraminelli, h., ‘histological review of skin cancers in african albinos: a 10-year retrospective review’ (2014) 14(1) bmc cancer, 157. 58 kinnear, p., jay, b., & witkop, c., ‘albinism’ (1985) 30(2) survey of ophthalmology, 75-101; witkop, c. j., ‘albinism’ (1989) 7(2) clinics in dermatology, 80-91; jablonski, n. g., & chaplin, g., ‘the evolution of skin pigmentation and hair texture in people of african ancestry’ (2014) 32(2) dermatologic clinics, 113-121. 59 creel, d., o'donnell, f. e., & witkop, c. j., ‘visual system anomalies in human ocular albinos’ (1978) 201(4359) science, 931-933. 60 king, r. a., creel, d., arvenka, j., okoro, a. n., & witkop, c. j., ‘albinism in nigeria with delineation of new recessive oculocutaneous type’ (1980) 17(4) clinical genetics, 259-270. 61 note: the term albino (or albino women) used in this paper are merely for convenient writing and easier comprehending and not intended to disparage or compromise the dignity of affected persons. 62 ojilere, a., (n. 4); ojilere, a., & saleh, m. m., ‘violation of dignity and life: challenges and prospects for women and girls with albinism in sub-saharan africa’ (2019) 4(3) journal of human rights and social work, 147-155 63 bryceson, d. f., jønsson, j. b., & sherrington, r., ‘miners' magic: artisanal mining, the albino fetish and murder in tanzania’ (2010) 48(3) the journal of modern african studies, 353-382. 64 oyewole, s., ‘kidnapping for rituals: article of faith and insecurity in nigeria’ (2016) 9(9) journal of pan african studies, 35-53. 65 baker, c., lund, p., nyathi, r., & taylor, j., ‘the myths surrounding people with albinism in south africa and zimbabwe’ (2010) 22(2) journal of african cultural studies, 169-181. 66 aceves, w. j., ‘two stories about skin color and international human rights advocacy’ (2015) 14 wash. u. global stud. l. rev., 563; ntinda, r. n., (2010). customary practices and children with albinism in namibia: a constitutional challenge? http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.616.6635&rep=rep1&type=pdf (21/5/2021) 67 okoro, a. n., ‘albinism in nigeria’ (1975) 92(5) british journal of dermatology, 485-492. 68 aquaron, r., djatou, m., & kamdem, l., ‘sociocultural aspects of albinism in sub-saharan africa: mutilations and ritual murders committed in east africa (burundi and tanzania)’ (2009) 69(5) medecine tropicale: revue du corps de sante colonial, 449-453. remarkably, in tanzania, few albino killers have been sentenced to death but not much has been done to protect albino women or other albinos from future attacks. see: bucaro, s., ‘a black market for magical bones: the current plight of east african albinos’ (2009) 15 pub. int. l. rep., 131 (cited in possi, a., & possi, a. ‘the identity question versus appropriateness of legal anti-discrimination measures: endorsing the disability rights approach to albinism’ (2017) 5 african disability rights yearbook, 118-140, 120. available at: http://www.adry.up.ac.za/images/adry/volume5_2017/chapter%207_2017.pdf (1/6/2021). 69 ikuomola, a. d., ‘socio-cultural conception of albinism and sexuality challenges among persons with albinism (pwa) in south-west, nigeria’ (2015) 4(2) afrrev ijah: an international journal of arts and humanities, 189-208; cruz-inigo, a. e., ladizinski, b., & sethi, a., ‘albinism in africa: stigma, slaughter and awareness campaigns´ (2011) 29(1) dermatologic clinics, 79-87; braathen, s. h., & ingstad, b., ‘albinism in malawi: knowledge and beliefs from an african setting’ (2006) 21(6) disability & society, 599-611; baker, c., lund, p., nyathi, r., & taylor, j., (n. 68). 70 aquaron, r., djatou, m., & kamdem, l. (n. 71). http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.616.6635&rep=rep1&type=pdf http://www.adry.up.ac.za/images/adry/volume5_2017/chapter%207_2017.pdf acarelar 2 (2021) page | 51 such, some pregnant women opt to abort female albino fetuses,71 otherwise albino children are killed at birth or abandoned to die.72 the foregoing confirm the finding that the murders, amputations and trafficking in body parts of persons with albinism in nigeria and parts of africa is an affront to the dignity and sanctity of the human body as guaranteed under international human rights law.73 africans also compromise the dignity of persons with albinism including women and girls by calling them ignoble names. for instance, in nigeria, the easterners deride them as ‘unfortunate europeans’,74 the hausa of the northern region call them bature ntuda, meaning ‘fake white man’75 while the yoruba people of the south west ignobly refer to them as afin or eni-orisa, that is, ‘one who belongs to the deity.’76 in mali, they are derided as gomblé or gombolé, which literally means ‘red monkey’ 77 worse still, prevalent myth in some african societies include the belief that albinism is contagious, hence, in zimbabwe, even educated albino women never get employed for jobs as employers always believed that ‘an albino secretary would hurt the company’s reputation’.78 in south west nigeria such women are constrained to undertake menial outdoor work only.79 the stigmatization and segregation of albino girls and children in africa have also prevented some of them from attending schools.80 no doubt, all these acts demean womanhood and particularly violate the right to human dignity of vulnerable women and girls in patriarchal societies like nigeria.81 unmarried women (older spinsters) and singlehood in most african value systems, the word, ‘spinster’ can carry a whiff of impoliteness in certain circumstances. the cliché describes a single woman who is old enough to be married but isn't, and isn't likely to get married.82 it is therefore a derogatory noun for an unmarried woman or older spinster who has manifestly crossed the socially perceived age for marriage. traditional africans societies despise and disparage singlehood, especially in women, as a mark of irresponsibility and dishonor.83 in the case of older single women in nigeria, some authors rightly posited thus: ‘singleness for women beyond the age considered conventional for marriage is regarded as a misnomer in nigeria. such women are pitied and blamed for their status. often the blame is based on assumed personal character defect of the women.’84 instead, africans view marriage with honor, respect and dignity, hence, the proverbial notion that it is only natural for females to ‘grow from ‘whose daughter’ to ‘whose wife’?, and that anything 71 oyekanmi, f. d., ‘socioeconomic dimensions of gender equality in nigeria’ in s. o. akinboye (ed.), paradox of gender equality in nigerian politics: essays in honour of dr. (mrs.) veronica adeleke (2004) pp. 41-61. lagos, nigeria: concept publications ltd. 72 ibid. 73 thuku, m., ‘myths, discrimination, and the call for special rights for persons with albinism in sub-saharan africa’ (2011) amnesty international editorial review on special programme on africa https://albinismawareness.or.tz/wpcontent/uploads/2017/04/calls-for-special-right-to-people-with-albinism-report.pdf (31/5/2021). 74 ojilere, a., (n. 65). 75 olagunju, o. s., ‘towards a biblical response to myth and discrimination against the human right of albinos in yorubaland’ (2012) 1(1) journal of studies in social sciences, 46-58. 76 ibid. 77 imperato, g. h. and imperato, p. j., ‘beliefs and practices concerning twins, hermaphrodites, and albinos among the bamana and maninka of mali’ (2006) 31(3) journal of community health, 198-224. 78 kuster, r., ‘white skin, black souls’ (2000) 382 new african, 40-41; cruz-inigo, a. e., ladizinski, b., & sethi, a. (n. 72). 79 okulicz, j., shah, r., schwartz, r., & janniger, c. (n. 58). 80 baker, c., ‘writing over the illness: the symbolic representation of albinism’ (2008) social studies of health, illness and disease: perspectives from the social sciences, eds. pl twohig and v. kalitzkus, 115-128. 81 in nigeria, they not only violate the constitutional rights to dignity of human person, gender equality and non-discrimination, among others, they also violate the discrimination against persons with disabilities (prohibition) act, 2018 which seeks the full integration of persons with disabilities into the society and establishes the national commission for persons with disabilities vested with the duty of ensuring the education, healthcare, social, economic and civil rights of persons with disabilities in nigeria. 82 merriam-webster dictionary. available at: https://www.merriam-webster.com/words-at-play/spinster-meaning-origin (14/5/2021). 83 hertel, j, schütz, a., depaulo, b. m., morris, w. l., & stucke, t. s., she’s single, so what? how singles are perceived compared with people who are married? (2007) 19, journal of family research, 139-158. 84 ntoimo, l. f., & isiugo-abanihe, u., ‘patriarchy and singlehood among women in lagos, nigeria’ (2014) 35(14) journal of family issues, 1980-2008, p. 1. available at: https://www.researchgate.net/profile/lorretta_ntoimo/publication/261471914_patriarchy_and_singlehood_among_women _in_lagos_nigeria/links/0a85e53454bea917a7000000/patriarchy-and-singlehood-among-women-in-lagos-nigeria.pdf (26/5/2021). https://albinismawareness.or.tz/wp-content/uploads/2017/04/calls-for-special-right-to-people-with-albinism-report.pdf https://albinismawareness.or.tz/wp-content/uploads/2017/04/calls-for-special-right-to-people-with-albinism-report.pdf https://www.merriam-webster.com/words-at-play/spinster-meaning-origin https://www.researchgate.net/profile/lorretta_ntoimo/publication/261471914_patriarchy_and_singlehood_among_women_in_lagos_nigeria/links/0a85e53454bea917a7000000/patriarchy-and-singlehood-among-women-in-lagos-nigeria.pdf https://www.researchgate.net/profile/lorretta_ntoimo/publication/261471914_patriarchy_and_singlehood_among_women_in_lagos_nigeria/links/0a85e53454bea917a7000000/patriarchy-and-singlehood-among-women-in-lagos-nigeria.pdf ojilere; adekilekun & umeh: violation of dignity of vulnerable women in african customary law and socio-religious mythology page | 52 to the contrary is a misnomer. this is, however, without prejudice to social implications of empowerment whereby some women attain elevated economic heights without necessarily dependent on a husband or spouse.85 sometimes the disregard, stigma and indignity suffered associated with old spinsterhood among african christians is justified by reference to the biblical verse in isaiah 4: 1 that: ‘in that day seven women will take hold of one man and say, ‘we will eat our own food and provide our own clothes; only let us be called by your name. take away our disgrace!’86 another translation reads thus: ‘in that day so few men will be left that seven women will fight for each man, saying, ‘let us all marry you! we will provide our own food and clothing. only let us take your name so we won’t be mocked as old maids.’87 the good news translation of the bible also offers a most expressive and simplistic translation of the said verse, thus: ‘when that time comes, seven women will grab hold of one man and say, ‘we can feed and clothe ourselves, but please let us say you are our husband, so that we won't have to endure the shame of being unmarried.’88 the underlined phrases in these translations confirm the socio-religious stigma of singlehood in women,89 more so, given goffman’s definition of stigma as any personal attribute that is ‘discrediting’ to its possessors and that reduces such a person ‘from a whole and usual person to a tainted and discounted one.’90 lesbians the term lesbian refers to female-identified women who indulge in romantic or sexual relationships with other female-identified transgender or intersex women. they may be bisexual, that is, femaleidentified women who seek caring, supportive and sexual relationships with other women and men, whether or not they are biological male or female, transgender or intersex.91 they are part of the lgbtiq (lesbian, gay, bisexual, transgender, intersex and queer) community, that is, persons whose gender presentation or sexual orientation do not conform to the norm, or who are convinced that their gender identity contrasts with the biological characteristics of their sex.92 whichever way, african customary law and socio-religious mythology reject and denounce lgbtiq practices for being ‘a taboo’, ungodly,93 ‘homonegative’,94 ‘un-african’,95 ‘unnatural’, ‘immoral’,96 and ‘against the order of nature’97 even though dlamini argues against homosexuality being ‘un-african’ and ‘unnatural’98 aside south africa,99 most african countries currently reject lesbianism and other 85 sodi, t., esere, m. o., gichinga, e. m., & hove, p., ‘marriage and counselling in african communities: challenges and counselling approaches’ (2010) 20(2) journal of psychology in africa, 335-340. 86 new international version. available at: https://www.biblestudytools.com/isaiah/4-1.html (26/5/2021). 87 new living translation. available at: https://www.biblestudytools.com/nlt/isaiah/4-1.html (26/5/2021). 88 good news translation: available at: https://www.biblestudytools.com/gnt/isaiah/4-1.html (26/5/2021). the underlined statement in the verse emphasize that it is shameful to be unmarried. 89 byrne, a., & carr, d., ‘caught in the cultural lag: the stigma of singlehood’ (2005) 16(2/3) psychological inquiry, 84-91. 90 goffman, e., stigma: notes on the management of spoiled identity (1963) englewood cliffs, nj: prentice hall, p. 3. 91 ojilere, a., ‘securing the human rights of lgbtiq persons across africa: the problem within’ (2020) 2(1) international review of law and jurisprudence, 189-196. 92 ibid. 93 vincent, l., & howell, s., ‘‘unnatural’, ‘un-african’ and ‘ungodly’: homophobic discourse in democratic south africa’ (2014) 17(4) sexualities, 472-483. 94 van zyl, m., ‘are same‐sex marriages unafrican? same‐sex relationships and belonging in post‐apartheid south africa’ (2011) 67(2) journal of social issues, 335-357. 95 reddy, v., & baduza, u., ‘black, gay and out/in: interview with utando baduza’ (2006) 20(67) agenda, 93-99. 96 kaoma, k., ‘the paradox and tension of moral claims: evangelical christianity, the politicization and globalization of sexual politics in sub-saharan africa´ (2014) 2(3) critical research on religion, 227-245. 97 the holy quran 7:80-81 states: ‘do ye commit lewdness such as no people in creation (ever) committed before you? ‘for ye practice your lusts on men in preference to women: ye are indeed a people transgressing beyond bounds.’ similarly, the christian holy bible states in leviticus 18:22 thus: ‘if there is a man who lies with a male as those who lie with a woman, both of them have committed a detestable act; they shall surely be put to death.’ this paper posits that the core of these religious verses is the rejection of same-sex relationships in men, and it logically applies to women too. 98 dlamini, b., ‘homosexuality in the african context’ (2006) 20(67) agenda, 128-136. 99ojilere, a., ‘homosexuality and same-sex marriage: the dilemma of human rights in sub-saharan africa’ (2016) 6, imsu journal of commercial and contemporary law, 159-169. https://www.biblestudytools.com/isaiah/4-1.html https://www.biblestudytools.com/nlt/isaiah/4-1.html https://www.biblestudytools.com/gnt/isaiah/4-1.html acarelar 2 (2021) page | 53 lgbtiq practices in line with islam,100 christianity,101 and african traditional religion (atr).102 africa’s political leadership also deride and reject lgbtiq rights as unacceptable ‘new rights’103 propagated by western democracies and the international human rights community to contaminate african piety, morality and sanctity.104 consequently, in nigeria and most african countries, lesbianism, gayism and same-sex marriages are criminalized by legislation despite western/international blackmail and threat of homocapitalism.105 till date, the lgbtiq community in the sub-region continues to endure indignity, dehumanization, reproach, segregation, violence, and murder. there are reports that some countries deny lesbians and lgbtiq persons access to healthcare because society views them as perverts.106 in nigeria, the police use the strategy of violent repression against these sexual minorities.107 in kenya sometimes, when sexual minorities report incidents of sexual violation, assault or rape, the merits of their complaint is ignored by the police. instead, they are arbitrarily arrested and subjected to degrading treatments on the basis of their sexual orientation108 thereby compromising their right to dignity, non-discrimination, equality, fair procedure and equal protection of the law.109 barren and involuntarily childless women assuredly, children are a blessing to marriage. however, core patriarchal myth-belief in pronatalist african societies110 rather view children as the essence of marriage.111 christianity and islam equally place prominence of fertility based on the religious injunction of ‘increase and multiply’. this is underscored by the endorsement of polygamous marriages in both customary law and islam. more specifically, islam lays ‘strong and unequivocal emphasis to high fertility’ and ‘many moslems believe that it is their religious duty to multiply and populate the earth’.112 it is however, regrettable that among most africans, infertility and involuntary childlessness are not only despised and stigmatized but are also feminized, meaning that women are naturally blamed for childlessness in marriage even when male 100 mahomed, n., ‘islam and homosexuality’ (2013) 33 journal for islamic studies, 235; ahmadi, s., ‘islam and homosexuality: religious dogma, colonial rule, and the quest for belonging’ (2015) 26(3) journal of civil rights and economic development, 2. 101 subhi, n., & geelan, d., ‘when christianity and homosexuality collide: understanding the potential intrapersonal conflict’ (2012) 59(10) journal of homosexuality, 1382-1402; mathibe, r., ‘the conflicts: christianity and homosexuality’ (2015) 29(1) agenda, 81-84. 102 ward, k., ‘religious institutions and actors and religious attitudes to homosexual rights: south africa and uganda.’ (2013) human rights, sexual orientation and gender identity in the commonwealth: struggles for decriminalisation and change, 409-427, at 411. 103 addressing the un general assembly on africa’s stand on lgbt, former president robert mugabe of zimbabwe described homosexuality and same-sex marriage as ‘new rights’ which are alien to africa and contrary to african ‘values, norms, traditions, and beliefs.’ the speech made 28 september, 2015 is available at: http://www.slate.com/blogs/the_slatest/2015/09/28/zimbabwe_s_mugabe_u_n_speech_on_gay_human_rights.html (17/5/2021). 104 ojilere, a., ‘jurisprudence of homosexuality and same-sex marriage in south africa and the united kingdom: human rights protection or political correctness?’ (2016) 1 imsu journal of international law and jurisprudence, 54-61. 105 this terminology describes the practice of global capital conspiracy whereby western and international aid and donor groups threaten to withdraw or deny aid to countries that officially reject same-sex relationships. see rao, r., ‘global homocapitalism’ (2015) 194 radical philosophy, 38-49; ojilere, a., ‘the diplomacy of homocapitalism against africa: same-sex marriage and the west’s promotion of homosexuality’ (2018) 22(1) world affairs-the journal of international issues, 152-163. 106 mukora, a. w., giving rights to the outlawed among us: decriminalizing kenya’s anti-sodomy laws (doctoral dissertation, strathmore university), (2017) p. 14. 107 giwa, s. a. o., logie, c. h., karki, k. k., makanjuola, o. f., & obiagwu, c. e., ‘police violence targeting lgbtiq+ people in nigeria: advancing solutions for a 21st century challenge’ (2020) 1(1) greenwich social work review, 36-49. 108 pema-kenya, the issue is violence: attacks to lgbt people at the kenyan coast, at 22-23; human rights watch, ‘kenya: court upholds forced anal tests’, 16 june 2016. 109 human rights watch, ‘kenya: court upholds forced anal tests’, 16 june 2016. 110 that is, one which promote policies and social attitudes that positively favour and reinforce respect for those who parent children. 111 dyer, s., ‘the value of children in african countries: insights from studies on infertility’ (2007) 28 j psychosom obstet gynaecol, 69–77. 112 schenker, j. g., ‘women’s reproductive health: monotheistic religious perspectives’ (2000) 70 international journal of gynecology and obstetrics, 77-86, p. 84. http://www.slate.com/blogs/the_slatest/2015/09/28/zimbabwe_s_mugabe_u_n_speech_on_gay_human_rights.html ojilere; adekilekun & umeh: violation of dignity of vulnerable women in african customary law and socio-religious mythology page | 54 infertility is the certified reason thereof.113 this negative afrocentric presumption obviously demeans and dehumanizes womanhood for no reason other than superstitious belief in customary law and socioreligious mythology. africans believe that women who are infertile and involuntarily childless are a reproach and ‘a curse or bad luck’ to her family.114 while some societies disparage them as ‘women who eat without producing fruit’115 others consider them sexually dysfunctional,116 physically dysfunctional,117 or assumed by traditional religionists to have been made barren by the gods as a result of their own ‘wickedness’.118 in yoruba communities, infertile women are described by the term ‘agon’ which literally means ‘to despise or hold in contempt’119 while the igbos describe them as ‘nwanyi-iga’ which literally means ‘the barren woman’ or ‘the sterile woman’, and more disparagingly, ‘a sterile monster whose sexual or maternal organs are for mere decoration’.120 yet, in some localities, the husband of an involuntary childless woman is ridiculed as ‘having married his fellow man’ or that the woman’s barrenness is as a result of series of ‘abortions’ which she committed.121 these and more confirm that african customary law and socio-religious myth violate the right to human dignity of vulnerable women. women who have only daughters and no sons a stigma is a mark of infamy, a symbol of disgrace, a sign of moral blemish or reproach caused by dishonorable conduct or reproachful characterization. when people are stigmatized, they are roundly devalued in integrity and persona, and they receive disproportionately negative interpersonal outcomes.122 such is the fate of african women who give birth to only daughters and no sons, given the patriarchal belief in male primogeniture, that is, the notion that succession, inheritance, reincarnation, and the continuity of family ancestry is only possible through the male. as such, for most africans, a wife who bears only daughters and no son is yet considered to be ‘standing on one leg’ (meaning that her position as a wife in the family is still insecure and not permanent).123 in the circumstance, customary law permits a man to marry a second wife who can bear a son for him, and if the woman opposes such move she is considered mischievous and can be sent packing.124 this is certainly a demeaning and dehumanizing approach to marriage given the heavy social and psychological burden it places on affected women. 3. conclusion dignity is the basis of life, and both are inseparable. as such, a life without dignity is almost worthless, hence any right, value, or public interest that conflict with human dignity must yield to dignity.125 unfortunately, in more ways than one, african customary law and socio-religious mythology particularly compromise and violate the human dignity of vulnerable persons and groups contrary especially women and girls. unfortunately, they are far-reaching in the lives of the people even as they 113 ojilere, a., adekilekun, k., & ojilere, i. c., ‘social stigmatization and negative feminization of infertility and involuntary childlessness in sub-saharan africa’ (2020) 9 nigerian journal of food, drug and health law, 132-145; hollos, m., ‘profiles of infertility in southern nigeria: women’s voices from amakiri’ (2003) 7 afr j reprod health, 46–56. 114 d cohenmor, arab women writers: an anthology of short stories (state university of new york press, new york), (2005) p 13. 115 lock, m., & kaufert, p., pragmatic women and body politics (cambridge, cambridge university press), (1998) pp. 1401. 116 gannon, k., glover, l., & abel, p., (2004). masculinity, infertility, stigma and media reports. soc sci med 59, 1169-1175. 117 miall, c. e., ‘the stigma of involuntary childlessness’ (1986) 33(4) social problems, 268-282. 118 johansson, m., & berg, m., ‘women’s experiences of childlessness 2 years after the end of in vitro fertilization treatment’ (2005) 19 scand j caring sci, 58-63. 119 see the early text of abraham rc., dictionary of modern yoruba (london: university college press, 1958) cited in ember, c., & ember, m., encyclopaedia of medical anthropology: health and illness in the world cultures. (london: springer), (2004), p 1038. 120 okereke, d., africa's quiet revolution: observed from nigeria (northampton: paragon), (2012), p. 294. 121 ugwu, a. u., ‘lopsided infertility blames on nigeria women: an evaluation of gender issues in the theatrical performance of ezenwanebe's egg without yoke’ (2012) theatre, creativity and democratic practice in nigeria, 378. 122 schneider, m. e., major, b., luhtanen, r., & crocker, j., ‘social stigma and the potential costs of assumptive help’ (1996) 22 pers soc psychol bull, 201-209. 123 okonofua, f. e., harris, d., odebiyi, a., kane, t., & snow, r. c, ‘the social meaning of infertility in southwest nigeria’ (1997) health transition review, 205-220, at 215. 124 ojilere, a., & gan, c. c., (n. 22). 125 shulztiner, d., & carmi, g. e., ‘human dignity in national constitutions: functions, promises and dangers’ (2014) 62(2) the american journal of comparative law, 461-490. acarelar 2 (2021) page | 55 are fundamentally unscientific and based on mere superstition handed down across generations from time immemorial. most of all, these myths and customs make mess of basic human rights guarantees expressed in the constitution of the federal republic of nigeria, 1999 (as amended), , the nigerian national gender policy, as well as international and continental commitments such as the beijing platform for action, the convention on the elimination of all forms of discrimination against women (cedaw), millennium development goals (mdgs), sustainable development goals (sdgs), and the au solemn declaration for gender equality, to eliminate gender inequality.126 responding to these human dignity violations and bridging the gap between rhetoric and reality in securing the dignity of women and girls as well as other vulnerable persons and groups in nigeria and beyond requires myriad approaches, especially broad civic education on gender equality and disability inclusion at national, state, local government and family levels, particularly for families who have children with albinism or other disabilities.127 126 ntoimo, l. f., & isiugo-abanihe, u., (n. 87). 127 likumbo, n., de villiers, t., & kyriacos, u., ‘malawian mothers’ experiences of raising children living with albinism: a qualitative descriptive study’ (2021) 10 african journal of disability, 1-11. available at: https://www.ncbi.nlm.nih.gov/pmc/articles/pmc8063528/ (1/6/2021); ojilere, a., ‘legislative and policy framework for promoting women’s dignity in nigeria: gaps and recommendations’ in chapter 4 of uwem udok and isaac essien (eds.), new frontiers in nigerian law: essays in honour of prof. enefiok essene (vice-chancellor, university of uyo) (2016), pp. 52-61. https://www.ncbi.nlm.nih.gov/pmc/articles/pmc8063528/ izunwa: voluntariety in the contract of marriage and the challenge of duress 1 voluntariety in the contract of marriage and the challenge of duress* abstract for any human project including marriage, to be of value, it ought to proceed from the voluntary dispositions of the free subject. this means that for any act to be properly a human undertaking, it must have been done with concrete awareness, willingness and deliberate consent of those involved. predicated on this proposition, the christiancanonical jurisprudence which informed the dictum of lord penzance in the celebrated case of hyde v hyde, made voluntariness of the parties to marriage a sine qua non to any valid celebration. but in the ancient and modern times, the issue of ‘duress’ has always operated to destroy the element of voluntariety in marriage. whenever this happens, the consequence by law and policy is nullity. using the doctrinal method of inquiry, this paper is structured to examine the concepts of voluntariety and ‘duress’ as they affect the marriage contract. it finds that despite the trite positions of the laws on this, people in their increasing numbers still enter into marriage under duress activated by different persons and under various situations. the instant paper recommends more than else a christian pastoral engagement of the problem, through value driven pastoral orientations, and robust enforcement of available legal provisions against the operation of duress for marriages across all jurisdictions. keywords: voluntareity, duress, contract of marriage, consent 1. introduction marriage is a universal institution which is recognized and respected all over the world. it is usually governed by the social and religious norms of the society. essentially, ‘marriage, as it were, is about the union of a man and a woman for the purposes of living together in a community of love and having and rearing children.1 according to osborn’s concise law dictionary, the fundamental ethical component of the contract of marriage lies in its voluntariety. hence, it is a ‘voluntary union for life of one man and one woman to the exclusion of all others...’2 it is this voluntariness which forms the bedrock of the contract of marriage, precisely as its formal cause, that is the victim of duress among other vitiating elements. duress involves a coercion of the will or a situation in which one party has no realistic alternative but to submit to pressure. it invokes a sense of intimidation or illegitimate pressure against a party to the marriage.3 in its operation, it compromises the entire idea of voluntariety, thus exposing the vulnerable party to exploitation during the life of ‘the marriage’. it often comes by way of external pressures or emotional coercion activated and sustained by either of the parties against the other, parental/family pressures, socio-cultural norms and expectations as well as economic susceptibilities. note that of all the elements of the marriage contract outlined by lord penzance in his definition of marriage namely; voluntariety, monogamity, heterosexuality, indissolubility and exclusively,4only the element of voluntariety is universally accepted and defended. no known modern state, religion or culture espouses force/duress in the institution of marriage. it is one of the areas in which the principles of autonomy and self determination are critically needed so as to make the common life of two persons possible. for ‘if both or all partners get to be in charge of their own lives, then you have a greater foundation for making room for each other and growing together’5 in the progress of this paper, the relevance of voluntariness in human actions will be examined with particular emphasis on its consequences for the marriage contract. furthermore, the vitiating element of duress and how it destroys voluntariety will be considered alongside some contentious issues surrounding the concept itself in global jurisdictions. the paper will end with few recommendations that will strengthen the institution of marriage against the vitiating ‘assault’ of duress and kindred forces. 2. the question and relevance of voluntariness in human actions without doubt, human beings are not automatons; they are moral entities free from all forms of psychological determinations. precisely as free moral agents, all human acts, actus humanus,6 properly so called are voluntary acts, arising from an intellectual election of object and oriented towards an entelechy – end or purpose. this requires knowledge, awareness, willingness, considered decision and deliberated accent of the will. according to dario composta, what appears as moral in human acts is only that which is guided by intelligence and will, or, in other terms, by understanding and willing, or also by awareness and consent. their flux constitutes the voluntary.7 inferentially, voluntary acts require the concomitant presence by b: knowledge (awareness of the goal) and a: interior *by maurice okechukwu izunwa, phd (phil), ma (phil), ma (rel), llm, llb, bl, senior lecturer, department of international law and jurisprudence, faculty of law, nnamdi azikiwe university, awka, nigeria. 1 m. o. izunwa, ‘statutory marriage and contemporally challenges: a contextual re-reading of some modern options’ [2010](1)(2) confluence journal of private and property law, 75. 2 s bone (ed.), osborn’s concise law dictionary (9th edn, london: sweet and maxwell, 2001) p. 246. 3 cf. ludmer v. ludmer, 2013 onsc 784, [2013] o. j. no. 699. 4 hyde v hyde (1861-1873) all er 175. 5 ‘its’ your choice: personal autonomy in a relationship’ <https://genderminorities.com2021/03/11/autonomy-in-arelationship/>accessed on 17/07/2023. 6 human act(s), are completely different from acts of man, which are – those gestures and actions performed by a person, but not in a specifically human way. examples include crying in a dream or acting under the effect of drugs or hypnosis. 7 d composta, moral philosophy and social ethics (india: bangalore theological publications, 1988) p.14. https://genderminorities.com2021/03/11/autonomy-in-a-relationship/ https://genderminorities.com2021/03/11/autonomy-in-a-relationship/ african customary and religious law review (acarelar) 4 (2023) 2 or exterior action performed by a person. from the combination of ‘a’ and ‘b’ is obtained (+a) + (+b) = ‘v’, where ‘v’ represents a voluntary act.8 as it were, ‘in man the voluntary act is structured, therefore, into different moments which range from the original perception of the good to the enjoyment of the achieved end’.9 it was left for billuart, in the seventeenth century to sketch the various moments of the movement as follows: 1. original apprehension of the good. 2. simple inefficacious volition of the good. 3. judgment on the possibility of the good. 4. efficacious intention 5. deliberation (consilium) 6. consensus (consensus) 7. election of the means through a judgment. 8. practical election (electio) 9. command of reason (imperium). 11. fruition of the good. this principle of voluntariety in the proper human actions is the centre of criminal jurisprudence in almost all jurisdictions. it requires that to be guilty and convicted as such, it must be demonstrated beyond reasonable doubt that the accused over and above doing the act or omitting to do the act (actus reus) constituting the offence so charged, must also have the intention/intent to commit the offence. the doctrine of mense rea in criminal law is the legal equivalent of voluntariety in ethics. hence, ‘in order to be guilty, the criminal must have committed the act in a culpable mental state’.10 culpability, in this sense, reflects voluntariety. accordingly, all things being equal, it is morally wrong to punish a person for an act done to society innocently and unwittingly.11 yet another area of law where voluntary assent of a person remains a sine-qua-non is in contractual transactions. it is for this reason that contracts are treated as forms of voluntary arrangements which need to be protected by law.12 and for any contractual relation to be enforceable, the parties’ intention to be bound must be ascertained and established.13 in this understanding, for a contract to exist parties must voluntarily enter into it, they must agree to the same thing, in the sense that, there must be a meeting of their minds to the same thing. this meeting of minds is what is called consensus ad idem and that is precisely the basis of contractual obligation.14 it involves the apparent meeting of minds of the parties, and an apparent union of their wills. thus, there must be two (or more) assenting minds, and the parties agreeing in opinion.15 even in religious categories and meanings, nobody is reckoned as having committed sin except when the person has voluntarily acted or omitted to act in respect of the object or the matter constituting the sin. as a matter of fact, for any sin to crystallize there must be knowledge and freedom of action. this knowledge and freedom taken together comprises voluntariety. more or less, voluntariety is directly proportional to the degree of personal involvement in the sin. hence: it is not the gravity of the matter that makes a sin mortal, but rather the degree of personal involvement in the decision to act. and it is not the lightness of the matter that makes a sin venial, but rather the absence of such involvement. one is either involved in the decision in fact, or one is not.16 the clear implication of the above position is that to constitute sin, one should have full awareness regarding the seriousness of the law. this requires that the mind shall know what the will does.17 hence, the element of full understanding remains a necessary concomitant to achieve voluntariety. for an act to be adjudged voluntary, the subject acting or omitting to act must do so in complete freedom of the will. thus ‘an essential condition of moral action is freedom of will. without, at least, a minimum of freedom of decision, no moral act is possible’.18 alexander willwoll, emphasizing the jurisprudence of free will and its relationship to responsible actions observes as follows: 8 other possible outcomes of some combination are: (-a) + (-b) = violent act; (+a) + (-b) = spontaneous action and (-a) + (+b) = speculative thought (outside the moral order). 9 d composta, op cit, p.19. 10ike oraegbunam & ro onunkwo, ‘mens rea principle and criminal jurisprudence in nigeria’ (2011) vol 2 journal of international law and jurisprudence, p.251 11‘mens rea’ <http://www.mojolaw.com/info/clo45> accessed on 27th september 2012; see also c elliot, and f quinn, criminal law (3rd edn, harlow: pearson education limited, 2000) pp.12-27. 12h j berman and wr greiner, the nature and functions of law (3rd edn, new york: the foundation press inc, 1972) p.548. 13 balfour v balfour (1919) 2 kb 571. 14 ba garner (eds.) black’s law dictionary (9th edn,minessota, west publishing co., 2009) p.346 15tinn v hofmann (1873) lt 271; green fingers agro-industrial enterprises ltd v yusufu (2003) 25 wrn 67; see also ie sagay, nigerian law of contract (2nd edn, ibadan: spectrum law publishing, 1993) p.36 16 te o’connell, principles for a catholic morality, (revised edn, new york: harpercollins publishers, 1990) p.100. 17the kind of knowledge required to constitute sin is called evaluative knowledge which involves a critical reflective judgment about the values involved in a thing. it is concrete knowledge. to know evaluatively, one stands before a particular thing, a particular experience and interacts with it, finds it to be good or bad, beautiful or ugly and appreciates it, understand it. evaluative knowledge is deeply personal. 18kh peschke, christian ethics: moral theology in the light of vatican ii, (bangalore: theological publications, 1999) p. 232. izunwa: voluntariety in the contract of marriage and the challenge of duress 3 the fact of free will becomes clearer when it is considered in relation to the ethical activities of persons. without free will and therefore without the possibility to will this or that, clearly a man cannot be held any more responsible for his willed actions, he is no more worthy of praise or blame than a sick man is for his sickness. consequently, the moral goodness or wickedness of an act of the will could not meaningfully be separated from sheer utility…if free will is abandoned then the moral dignity of the person must also be renounced; this would be equivalent to saying that there is no sense whatsoever to human existence.19 hence, voluntariety evokes responsibility. no one is responsible for an act or omission which is not voluntary.20this is because voluntary actions or inactions are innate marks of man’s unique sense of self, of truth, of achievement and responsibility.21 the concept of responsibility for actions performed or not performed ‘is fundamental to any system of ethics, because claiming that people ought to take certain actions presupposes a choice which determines the action taken and for which the individual is responsible’22 what is more, is that the possibility of choice, freedom to act otherwise, is a specie of voluntary actions and an integral part of moral responsibility, since it involves the distinctive human capacity to deliberate. the substance of the argument is that: …moral responsibility would arise from the necessity of deliberation in order to achieve happiness (which is the end of all humans), and so praise of blame would primarily be bestowed upon the act of proper deliberation or careless deliberation (or no deliberation at all). because this deliberation gives rise to choice, and because choice over the long run forms states of character, humans are morally responsible for both their choices and their states of character.23 but it is generally agreed ‘that a person who has been coerced to do something did not do it freely and is not morally responsible for having done it’.24 the phrase ‘the agent is responsible for an action’ is actually the translation of the greek expression ‘the agent is the cause of an action’. impliedly, if it can be demonstrated that a person – the agent – is in some sense the cause of an action, by the principle of logical equivalence, we can equally hold without error that such an agent is in some sense responsible for the action he is said to have caused. in a summary, aristotle offers some guidelines as the conditions for moral responsibility viz: (i) the agent must act in full awareness of what he is doing. (ii) he must will his actions, and will it for its own sake. (iii) the act must proceed from a fixed and unchangeable disposition.25 it suffices to underscore in agreement with aristotle that a person is the originating cause of his or her moral actions. the word ‘moral’ as used in this context implies ‘voluntary and free action’. thus, concerning all actions of which a man is the first principle, which depends on him to happen or not to happen, the praiseworthiness and blameworthiness of all such actions also depend on him. hence, he is responsible.26 according to aristotle, ‘we ascribe responsibility to an agent when his action is performed voluntarily’27 without responsibility by the agent, all judgment, as to the rightness or wrongness of an act or omission loses meaning since there is no conscious and deliberate relationship between the subject of the act or omission and the object. indeed, without responsibility there cannot be any form of value judgment. a person who acted based upon his previous decision is responsible not only for having performed the action, but also for having performed the kind of action performed. this is because the person made the decision to perform based on his existing disposition of which he is also responsible for.28 3. marriage as a voluntary union: legal emphasis and constraints voluntariety implies and involves free consent. and in scholastic categories ‘consent results from the combined actions of the cognitive, deliberative or critical, and volitional faculties.’29 yet, these faculties cannot act in isolation 19 a willwoll ‘free will’ in k baker (ed.), philosophical dictionary (washington: gonzaga university press, 1972) p.149 20actions are not considered voluntary, then, if (1) they are done in ignorance; (2) or they are not done in ignorance, but they are not free to the agent; (3) or they are done by force. for we also do or undergo many of our natural actions and processes such as growing old and dying, in knowledge, but none of them is either voluntary or involuntary. see aristotle, nichomachean ethics, n. e., 1135a31-b2. 21 mp cosgrove, the essence of human nature (grand rapids: zondervan, 1977) p.38. 22dm hsieh ‘aristotle on moral responsibility’ <http://www.enlightenment.supersaturated.com/essays/text/dianamertzhsieh/aristotleresponsibility.html >accessed on 1st october 2012. 23 ibid 24h frankfurt, ‘alternate possibilities and moral responsibility’ in j feinberg and r shafer-landu (eds.), reason and responsibility: readings in some basic problems of philosophy (belmont: wadsworth publishing company, 1999) p.460 25 aristotle, the nichomachean ethics, bk 2, ch 4. 26 aristotle, the eudemonian ethics, bk. 2. ch 6:9-10. 27llg espindola, ‘voluntary action and responsibility in aristotle <http://www.philosophy.ox.ac.uk/__data/assets/pdf_file/0017/1907/gomez_-_aristotle.pdf >accessed on 17th of september 2014 28 ibid 29 ja coriden et el. (eds.), the code of canon law: a text and commentary (london: geoffrey chapman, 1999)p.774 http://www.enlightenment.supersaturated.com/essays/text/dianamertzhsieh/aristotleresponsibility.html http://www.philosophy.ox.ac.uk/__data/assets/pdf_file/0017/1907/gomez_-_aristotle.pdf african customary and religious law review (acarelar) 4 (2023) 4 of one another. if they do, the act of matrimonial consent is not simply an act of the person. since in the nature of man, an action or inaction has value or dignity to the extent it is voluntary, all serious human engagements ought therefore to be done voluntarily to be relevant. and one seldom finds a human commitment which is more serious in fact than the whole issue of marriage contract. little wonder fearon observed that: marriage is more than a personal relation between a man and a woman. it is a status founded on contract and established by law. it constitutes an institution involving the highest interests of society. it is regulated and controlled by law based upon principles of public policy affecting the welfare of the people of the state. marriage, as creating the most important relation in life, [has] more to do with the morals and civilization of a people than any other institution….30 marriage is much more than a contract, in the words of brodie ‘the contract of marriage is the most important of all human transactions. it is the very basis of the whole fabric of civilized society’.31 therefore, it goes without saying that marriage commitment must be made with the fullest sense of consciousness, awareness, understanding, reason, deliberation, and free consent. under the common law and in line with the nigeria marriage act, ‘marriage is a contract32 which must be entered into freely. both intending spouses must be capable of making the decision to get married. a marriage can be annulled or be void if consent is not given by the two individuals who entered into marriage.’33 as a matter of fact: marriage is a public act which must be between two consenting adults. it is an act that should not be entered into lightly as the duties and rights of marriage have consequences not only for the marrying couple but their families, friends and the society at large. the laws are mindful of the fact that marriage enjoys the loftiest engagement of man and society for which it must be engaged with the greatest sobriety. in loving v virginia34, the supreme court of the united states rightly held that ‘marriage is one of the basic civil rights of man, fundamental to our very existence and survival.’ perhaps in consideration of the importance of marriage to human life and society, lord penzance in his definition of marriage in the case of hyde v hyde35, made consent or voluntariety the first and quintessential element for any valid celebration of marriage. thus, between any two parties intending or desirous to marry, the formal cause must be a voluntary desire of each other. in essence, the consent to marry as it applies to each and every one of the parties must be free from all forms of coercion internal or external. it was left for the nigeria matrimonial causes act36of 1970, to provide for the various factors that are capable of destroying and/or affecting free and voluntary consent to marry.37 these include that the marriage was obtained by duress or by fraud; or that one party to the marriage is mistaken as to the identity of the other or as to the nature of the ceremony performed; or that any of the parties is mentally incapable of understanding the nature of the marriage contract. it is the position of the law that where any of the above mentioned factors exist and/or prevail, the consent given to such marriage is not real and therefore cannot sustain or support a valid marriage contract. in other words, the marriage is ipso facto void.38 however, the matrimonial causes act in section 5 (1) (b) (i) – (iii) provides for other factors which affect real consent and which shall have the effect of rendering a validly celebrated marriage voidable. the factors so provided include the situations where either of the parties to the marriage is of unsound mind or is mentally defective or is subject to recurrent attacks of insanity or epilepsy. and for avoidance of doubt the act provides that: ‘mentally defective’, means a person who, owing to an arrested or incomplete development of mind, whether arising from inherent causes or induced by disease or injury, requires oversight, care 30 maynard v hill 125 us 190, 31jf brodie ‘actions for breach of promise to marry’ (1852-1891) vol 20 no 2 the american law register 65 <http://www.jstor.org/stable/pdfplus/3303899.pdf?accepttc=true&jpdconfirm=true> accessed on 14th september 2014 32marriage is considered a civil contract, but of a peculiar character and subject to peculiar principles. it certainly does differ from ordinary common law contracts, by reason of its subjet-matter and of the supervision which the state exercises over the marriage relation which the contract institutes’. see <http//www.duhaime.org/legal dictionary/m/marriage.aspx> accessed on 1st october 2012. 33to glasgow, ‘the importance of consent’ <http://www.thevoiceslu.com/features/2009/april/11_04_09/the_importance_of_consent.htm> accessed on 17th september 2014 34 338 us 1 (1967) 35 (1866) lr1p&d 130 36 section 3(1) (d) (i) – (iii)] 37the marriage act was completely silent on the issue of the consent of the parties. this gap was filled by the matrimonial causes act of 1970 which provides for the real consent of the parties, that is, consent obtained without duress or fraud cf. mca (1970) s.3(i) (d) (i) 38a void marriage is one which has no legal effects. everything done to establish such a marriage relation is as it were a nullity. this is quite different from a voidable marriage which remains valid until annulled, that is, a valid act that can be voided. cf. s bone (ed.), osborn’s concise law dictionary, (9th edn, london: sweet and maxwell, 2001) p.402; garner, ibid, 1709. http://www.jstor.org/stable/pdfplus/3303899.pdf?accepttc=true&jpdconfirm=true http://www.thevoiceslu.com/features/2009/april/11_04_09/the_importance_of_consent.htm izunwa: voluntariety in the contract of marriage and the challenge of duress 5 or control for his own protection or for the protection of others and is, by reason of that fact, unfitted for the responsibilities of marriage.39 nwogugu observes, with great approval, that it is a cardinal principle of our law that the parties to a marriage must have freely consented to the union. incisively, he noted that complete absence of consent will invalidate the marriage and therefore does not raise many difficulties to the courts. but in those common cases where there exists an apparent consent, that is, where a party, under some prevailing circumstances does not give his true or real consent or have his consent negatived by some factors the courts have been called to more critical commitment.40 the courts have indeed held in a plethora of cases that the absence of a genuine consent will vitiate marriage41. all such decisions are on all fours with the vision of the universal declaration of human rights, where it states that ‘marriage shall be entered into with the free and full consent of the intending spouses’.42 interestingly, the convention on consent to marriage, minimum age for marriage and registration of marriages, has a more serious but similar provision to the effect that: no marriage shall be legally entered into without the full and real consent of both parties, such consent to be expressed by the person after due publicity and in the presence of the authority competent to solemnize the marriage and of witnesses, as prescribed by law.43 in what follows, the element of duress as an impediment to voluntariety is taken up and discussed. 4. the operation of duress and its consequences for marriage contract in the will lies the power to determine actions according to the voluntary options of the free subject. duress occasions when the will, precisely as the elective and executory chamber of the rational subject is overpowered. actual beating, threat and perhaps imprisonment of a would be spouse in order to achieve consent constitutes duress.44 put a little differently, duress means fear which is so over bearing that the element of free consent is absent. of great relevance is the english case of szechter v szechter,45where sir jocelyn simon summarized the law on duress in a statement unanimously approved in singh v singh46, as follows: ‘it must…be proved that the will of one of the parties thereto has been overborne by genuine and reasonably held fear caused by threat of immediate danger (for which the party himself is not responsible), to life, limb, or liberty, so that the constraint destroys the reality of consent’. in the case of parojcic v parojcic47 a daughter who had just contrived to leave yugoslavia and reach england was threatened by her father on arrival that unless she married the man who accompanied him, whom she had never met before, she would be sent back to yugoslavia. in the instant case, the court found the prevalence of the element of duress and granted decree of nullity. note that what constitutes duress varies according to circumstances of each case but depends to a large extent on how far the volitional capacity and freedom has been overpowered. thus, marriage contrived to escape from totalitarian regime amount to duress48; that celebrated under threat of being killed is also void on account of duress.49 what is more, marriage which is entered into under threat of being made bankrupt and being shot was voided for duress.50 it is therefore trite that for a plea of duress to succeed, there has to be an evidence of fear otherwise the action fails. hence in singh v singh51, a marriage arranged by the parents of two sikhs was held to be voluntary. the court found that though the petitioner had never for once cast his sight on the would be husband prior to the marriage day, and as a matter of fact, went through the marriage for respect of the tradition of her people, fear was not implied. in effect the court reasoned that mere respect for parents is positive and normal and does not translate into duress for the purpose of nullity.52 contrast the above with the fact of hirani v hirani53, where the parents of a hindu girl, opposed her relationship with a hindu boy and went further to arrange a marriage with a hindu man. when the girl resisted, the 39 matrimonial causes act (mca) see.5(2) 40 ei nwogugu, family law in nigeria (revised edn, ibadan: heinemann educational books, 1974) p.136 41 osamawonyi v osamawonyi (1972) 10 sc 1 42 article 16 (1) 431994, article 1 (1); see also, protocol to the african charter on human and peoples’ right on the rights of women in africa, article 6 (a) and the recommendation on consent to marriage, minimum age for marriage and registration of marriage (1905), principle 1 (a). 44 buckland v buckland (1967) 3 all er. 300. 45 (1971) 2 wlr 170; (1970) 3 all er 905 46 (1971) 2 wlr 963; (1971) 2 all er 828 47 (1958)1 wlr 1280; (1959) 1 all er 1 48 h v h (1953) 2 all er 1229. 49 hussein v hussein (1938) 2 all er 344. 50 scott v sebright (1886) 12 pd 21 51 supra 52similarly, in the absence of fear or coercion, a mere ulterior motive is not enough. in the case of silver v silver (1955) 2 all er 614, a german girl married an englishman in order to come to england to live with another englishman, no duress was implicated, but fraud may crystallize. 53 (1982) 4 flr 232. african customary and religious law review (acarelar) 4 (2023) 6 parents threatened to withdraw all support from her and to oust her from the family. the girl was only 19years old then and cannot support herself nor sustain a house rent. the court found duress and held that it was not necessary, literally, to find a threat to life, limb or liberty in order to occasion duress capable of grounding nullity. it is enough that the threat was substantial to the extent that the victim acted by it. this is a better reasoning. indeed, concerning the measure or degree of threat sufficient to ground nullity, dodss citing ormrod lj observed that ‘the crucial question…is whether the threat, pressure, or whatever it is, is such as to destroy the reality of consent and overbears the will of the individual.54 the elements of responsibility for and/or instrumentality to the situation giving rise to the use of threat; on the one hand, and the element of fear reasonably entertained by one of the parties perhaps the petitioner on the other hand, have been hotly contested in respect of the grant of the decree of nullity. indeed, legal pundits have bordered themselves with the question of party’s responsibility for the threat given, which affected consent. hence in buckland’s case,55 the court reasoned that the decree would not have been granted had the petitioner been found guilty of offence alleged. similarly, in griffith v griffith56 where a man was forced to marry a girl under the false threat of prosecution for unlawful sexual intercourse with the said girl who is under 17-years of age, the court suggested ‘that the approach should be whether the fear was justly imposed.’ as it were, if the fear is justly imposed the marriage is valid and binding otherwise it is not. fear could not be justly imposed if the party was not responsible for it.57 in the instant case, the court declared the marriage void. 5. a moral response to the ‘reasonings’ in ‘buckland’s and griffith’s’ case but with due respect, this paper argues that it is a bad law, proceeding from an improper jurisprudence to hold a marriage valid which was entered into in fear, just for the reason that the party is responsible for the fear. granted that a person cannot be allowed to benefit from his fraud or crime, the institution of marriage affecting not only the ‘responsible’ party but also the other innocent party as well as the state should be secured from the inconvenience of this rule. to hold such a marriage valid is a mere technical extension of the rule of criminal law that one cannot allege compulsion when he/or she is responsible for or instrumental to the same. this paper considers such an extension of criminal law principle to the field of marriage as the most unconsidered extrapolation ever conceived in law. fear or duress, irrespective of whether the petitioner or any of the parties to the marriage is responsible for it or not, vitiates voluntary action of a free moral agent, a quality of action quintessential to human act and more so, to marriage. the proper question to be asked at all times and without more is whether the parties to a marriage freely desires and consented to marry each other. to raise the question of ‘responsibility for the threat’ occasioning the diriment fear is a hermeneutical challenge to and /or outright summersault of the spirit of the definition of marriage by lord penzance. it is also a moral absurdity. another contentious issue in duress is as to whether the fear, occasioning duress and overpowering the will must have been reasonably entertained or not. on this, there has been conflicting dicta: scott v sebright58 supports a subjective approach which considers the fear entertained from the perspective of the person involved as opposed to the standpoint of a reasonable man in the circumstances. on the other hand, buckland’s case59 and szechter’s60 case favor an objective approach which considers the fear entertained from the view point of a reasonable man. the latter position, with due respect is wrong in the opinion of this work. although the objective approach of reasonableness has been made applicable and exalted to the point of being a rule in all legal transactions and issues, marriage for all intents and purposes transcends the considerations of logic and the technicalities of formal standards precisely because it deals with life partnership in love. law must not pretend insensitivity when a love relationship meant for life is in issue. the language and grammar of love is fraught and understood in the intersubjectivity of persons than in the hard categories of contract simpliciter. it is a mark of a good jurisprudence to take ‘judicial’ notice of this fact of life. here natural law school of jurisprudence will operate to direct all decisions or legislations. in effect, once a party to a marriage is caused to enter into that marriage by reason of fear occasioned by duress, it is immaterial that a man of ordinary courage could not be so moved or fettered.61 the proper question to ask is whether the party was in fact actually caused to move into the said marriage by fear. if the answer is in the affirmative, the marriage is a subject matter for the declaration of nullity. robert brown in his renowned article ‘duress and fraud as grounds for the annulment of marriage,’ observes as follows: … the weight of modern authority is probably to the contrary, holding that if there were coercion in fact the marriage should be dissolved, even though a more determined person would have been able to resist such pressure…the marriage resulting from undoubted coercion is just as intolerable to the 54 m dodds, family law (4th edn, london: old bailey press, 2003) p. 26. 55 supra 56 (1944) ir 35 57 dodds, op cit, p26 58 supra 59 supra 60 supra 61 marre v marre, 184 mo. app.198, 168 s. w. 636 (1914); see also doscher v schroder, 105 nj. eq. 315, 147 atl.781 (1929) izunwa: voluntariety in the contract of marriage and the challenge of duress 7 victim as one resulting from sufficient duress to overcome a person of ordinary firmness would be to that kind of a victim. furthermore, duress is a voluntary act, and it may reasonably be supposed that the person exerting it knows about and relies on the lack of firmness of his victim. an objective standard of duress unjustifiably permits such advantage to be taken.62 butt j, stated the principle clearer in scott v sebright63 when he observed that: whenever from natural weakness of intellect or from fear whether reasonably entertained or not – either party is actually in a state of mental incompetence to resist pressure improperly brought to bear, there is no more consent than in the case of a person of stronger intellect and more robust courage yielding to a more serious danger. in ayiegbusi v ayiegbusi, a nigerian case64, the father of the petitioner threatened to curse her if she refused to marry the respondent. while the promise of a curse may not mean much for some persons, in the african igbo setting, it is of very high consequence, particularly, for a girl who is looking toward bearing children. even where some african-igbo girls will be undaunted by threat of curse, this particular girl was emasculated with fear and that subjective fear was sufficient for the petition to succeed. 6. addressing the prevalence of duress in contemporary marriage contracts addressing the prevalence of duress in contemporary marriages is of utmost importance and critical for ensuring liberty of contract with such extent of freedom characteristic of moral subjects. considering the enormity of harm arising from marriages induced by duress, and further recognizing the pervasiveness of such cases, it is of highpriority that laws, policies and practices across jurisdictions rise to the occasion. in this way, individuals will be enabled to make personal marriage decisions devoid of undue pressure. according to hannah wu of the united nations human rights commission: ending forced marriage requires strengthened and concerted efforts in all contexts, following a collaborative approach, as we can only make a difference together. we must address this issue in partnership involving all stakeholders at community, national, regional and global levels, in both peace and conflict situations. above all, we need to work with girls and women.65 in line with the above reasoning, it is recommended that states should take the following into account as fitting responses to the challenging situation: targeted awareness education campaigns; legislating, strengthening and enforcing uniform consent age in respect of marriage; introduction of sufficient waiting periods before celebration of marriage; integral pre-marital marriage counseling and classes; criminalization of forced marriages and prosecution of offenders; compulsory pre-nuptial agreements; mandatory reporting of incidences of forced marriages; strengthening legal protection of vulnerable persons; sensitivity to differential cultural norms; activating channels of international cooperation; mobilization of ngo’s and cso’s; and partnering with the churches. according to nelson mandela, education remains ‘the most powerful weapon which can be used to incident change’ and for epictetus, the philosopher ‘only the educated are free.66 in the light of the above, it is a ‘moral imperative’ that states should embark on purposive educational campaigns that will facilitate people’s awareness of the presence and consequences of duress in marriages, that fall victim, as well as steps to take to avert such difficult situations. such campaigns should be, especially, targeted at places and ‘spaces’ where young persons are commonly reached namely; schools, community and commercial centres, mass media channels and social media halls/platforms, to mention a few. of note is that there is no minimum acceptable age of marriage applicable to all the countries of the world. the age of consent ranges from as low as 11 to as high as 20 years old as is applicable in nepal.67 some countries have laws that allow marriage below the age of 18 often with parental or judicial consent, while others have lower age limits or no specific minimum age at all.68 in nigeria for instance, the laws are not settled as to what constitutes the marriageable age.69 it is recommended that the minimum of 18 years prescribed by the united nations convention on the rights of 62rc brown, ‘duress and fraud as grounds for annulment of marriage’ (1935) vol 10 issue 9 article 1 indiana law journal 475 <htpp://www.repository.law.indiana.edu/ilj/vol10/iss9/1> accessed on 17th of september 2014 63 supra. 64 unreported decision with suit no.//238171 delivered on 29th april 1974 high court of western states, ibadan judicial division, per odulami 65 hannah wu ‘forced marriage a violation of human rights’ <https://www.ohehr.org/en/stories/2023/01/forced-marriageviolation-human-rights> accessed on 28/7/2023. 66 cf. ’50 powerful education quotes for kids’ <https://www.splashlearn.com/blog/powerful-education-quotes-for-kids-torealise-the-importance-of-learning/> accessed on 28/7/2023. 67 nigeria age of consent and statutory rape laws <https://www.ageofconsent.net/world/nigeria> accessed on 7/7/2023. 68 angola allows with parental consent while central african republic allows with judicial consent but a place like gambia has no minimum age of marriage. 69 there exists a disparity among the matrimonial causes act (1970), the applicable common law and the marriage act (1914). https://www.ohehr.org/en/stories/2023/01/forced-marriage-violation-human-rights https://www.ohehr.org/en/stories/2023/01/forced-marriage-violation-human-rights https://www.splashlearn.com/blog/powerful-education-quotes-for-kids-to-realise-the-importance-of-learning/ https://www.splashlearn.com/blog/powerful-education-quotes-for-kids-to-realise-the-importance-of-learning/ https://www.ageofconsent.net/world/nigeria african customary and religious law review (acarelar) 4 (2023) 8 the child70be adopted across all jurisdictions. states should endeavour to ensure that the provision is strengthened by applicable policies, so that, parties to marriages can have the capacity to make informed decisions about marriage by reason of maturity of age. in that vein, states should require marriage registrars and officials in licensed places of marriage to verify and ascertain that all claimed consents are freely given before the celebration of any marriage. also, given that there are countries or states that do not have elaborate process for pre-marriage bans and publications, it is recommended that a mandatory waiting period be introduced between the application for marriage and the actual celebration of same. this avails the couples some time to think issues out and ensure that they are not under any pressure at all. for instance, in the united states of america, places like alaska, florida and iowa, etc, have mandatory three-day waiting period.71 such time permits them to reflect on their decision and seek appropriate advice if need be. it is also necessary that the laws of nations should provide for compulsory (mandatory) pre-marriage course/counseling and develop an integral and intensive content which is to be taught by experienced professionals. this is an area where the church and state can form a synergy since the churches are conversant with a similar practice. such themes as psychology of relationships/marriage, communication skills, conflict resolution strategies and rights and obligations of parties within marriage are to be taught. the said course ought to highlight ‘the core elements of relationships and concentrates on exploring these elements in the company of other couples preparing for marriage.’72 it is to be designed in such a way as to assist couples invest in their relationship and ‘build a strong marriage.’73 the provisions of the canon law of the catholic church on this issue and the pastoral practice in respect of same, remain exemplary. another step that could be useful is to have a legal but optional pre-nuptial agreement74entered into by parties before the ratification of their marriage. copies of such agreements should be deposited with the marriage registry and/or with the court. promoting and enforcing the use of such pre-nuptial agreement, where it applies, will go a long way in ensuring that marriage decisions are made with full awareness and without duress or constraints arising from any quarters. criminalizing duress in the contract of marriage could be a good legislative approach. stringent penalties should be provided by the legislature for act(s) of compelling another person(s) to marry particular person(s). this could serve as deterrence.75 already, forcing someone to enter into a marriage against that person’s will is a criminal offence in dutch law and in 2011 european council convention required all states parties to turn forced marriage into a criminal offense.76 under the international law, the rome statute77in its article 7, has provided a prop for state parties to make specific laws criminalizing forced marriages.78 a case is hereby made for the globalization of this legislative initiative. undoubtedly, marriage entered into by duress is a human right violation and calls for activating the laws that protect persons against the violation of a cluster of rights; to dignity, life, health, liberty and discrimination. it further calls for context specific policies and stringent legal measures in the form of civil protection orders.79 hence, there is an urgent need to review and strengthen laws that protect persons from all forms of duress within marriage whether in the forms of emotional, financial or physical pressure. closely connected with this recommendation is the need to make laws in respect of mandatory reporting of incidents of use of force to compel persons into unconsented marriages. indeed, if 70 this was adopted by the general assembly of the united nations in its resolution 44/25 of 20 november, 1989. 71 cf. lyle therese et al ‘marriage license requirements’ <https://www.findlaw.come/family/marriage/marriage-licenserequirements.html#> accessed on 23/7/2023. 72‘catholic marriage courses: what to expect’ <https://www.accord.ie/news/marriage-preparation-courses-what-toexpect#> accessed on 20/7/2023. 73 ‘try marriage course’ <https://themarriagecourse.org/try/the-marriage.course#> accessed on 7/7/2023. 74 a pre-nuptial agreement is a written contract created by two people before they get married. it lists all the property each person owns and debts too and spells out each person’s property rights during the marriage and in the event of eventual divorce. note that the catholic church holds prenuptial agreements unacceptable because it creates conditions that undermine legitimacy and indissolubility of the marriage before it even starts. indeed, the use of prenuptial agreements do not fit into the christian version of marriage but it does serve the islamic understanding of marriage at least. 75 cf. francis nguyen ‘untangling sex, marriage, and other criminalities in forced marriage’ [2014] (6) goettingen journal of international law, 1-45. 76 ‘the criminalization of forced marriage under dutch law and in rome statute’ <https://www.cambridge.org/core/books/abs/force-marriage/criminalization-of-forced-marriage-under-dutch-law-and-in-therome-statute/> accessed on 25/07/2023. 77 rome statute of international criminal court, opened for signature, july 17, 1998. 2187 u. n t. s. 90-entered into force, july 1, 2002. 78 the rome statute does not criminalize forced marriage as a separate crime but bundles it together with what it calls ‘other inhuman acts.’ 79 cf. lisa. v. martin ‘restraining forced marriage’ [2018] (18) nevada law journal, 919-984. https://www.findlaw.come/family/marriage/marriage-license-requirements.html https://www.findlaw.come/family/marriage/marriage-license-requirements.html https://www.accord.ie/news/marriage-preparation-courses-what-to-expect https://www.accord.ie/news/marriage-preparation-courses-what-to-expect https://themarriagecourse.org/try/the-marriage.course https://www.cambridge.org/core/books/abs/force-marriage/criminalization-of-forced-marriage-under-dutch-law-and-in-the-rome-statute/ https://www.cambridge.org/core/books/abs/force-marriage/criminalization-of-forced-marriage-under-dutch-law-and-in-the-rome-statute/ izunwa: voluntariety in the contract of marriage and the challenge of duress 9 by law, professionals as doctors, teachers, social workers and even the common citizens, are mandated to report suspected cases of use of force to induce marriage, then, appropriate authorities can intervene to provide assistance.80 it is also important that the legislature, the courts and the law enforcement agencies are prepared to have a kind of cultural and cross cultural competence. this will help them to develop such cultural awareness or sensitivity that makes them understand and accept other people’s cultural identities.81 in this way, they can penetrate, decode and so respond appropriately to cultural nuances and challenges relating to duress in specific communities. efforts need also to extend to the international frontiers for handling cross-border cases of forced marriages. for this reason, there is the need to set in motion some kind of international cooperation in the fight against duress in the contract of marriage. after all ‘international law supports order… and the attainment of humanities’ fundamental goals’ of advancing peace, prosperity, human rights and dignity, both in marriages and other sectors of human endeavours.82 more still, civil society organizations (cso’s) and non governmental organizations (ngo’s) contribute greatly to society’s safety and progress. they both ‘advocate for individual’s human rights protection and safety.’83 yet the church being the greatest expert in humanity, the moderator of the consciences of peoples’, women and society at large, and having all that it takes to teach, convince, persuade and convert, will be kept at the centre of the struggle to recover the essence of marriage.84 7. conclusion this paper has argued that at the core of all contractual relations, marriage inclusive, the freedom of the parties involved is paramount. once this freedom is choked, the nature of the transaction changes substantially not withstanding that the form of the contract, on the face of it, may appear regular. marriage as it were is, stricto sensu, a contract subject to the common conditions of contracts in general. to remain an act of a free moral subject, it has to be a voluntary endeavour. its voluntariety is disclosed in an unconditional and unfettered consent of parties to marry. once this liberty of consent is compromised, no matter the degree, the essence of marriage in all its ramifications stand betrayed, and so, the conjugal union becomes dead on arrival. from the discourse pursued in the instant paper, it is shown that duress is a major challenge to matrimonial voluntariety. in whichever form it manifests, whether by reason of over bearing pressure by a party or through substitution of a party’s consent with parental consent or by way of outright supervention of family preferences, duress85 is detrimental to ‘matrimonial intentionality’ and contrary to international best practices relating to marriage. marriage in fieri (wedding) being the act giving life to the conjugal union is the contract per se from which arises marriage in facto esse (family). hence, without a free contract, the family arising from there will suffer the problem of validity. to be saved, the family has to be a community established and sustained in the dialogue of free choice of parties to a marriage in which love is specific.86 without doubt, the specificity of love excludes coercion and encapsulates concordance, consent in self-giving and self donation in a total and free way. marriage is therefore a contract sui-generis requiring the highest degree of freedom and voluntariety of parties. duress and its kindred weapons are therefore fundamentally opposed to marriage’s ethical, moral, religious and legal configurations. it is sustained in this paper that the establishment of marriage or rather the starting point of the family must be entirely set in a voluntary context. the said voluntariety remains its inexorable constitutive juridical element such that any form of compulsion is considered in law and morals as destructive, or at best dimunitive and reductive of marriage properly so called. the substance of the argument is that conjugal love consists in a free and unrestrained manifestation of the will and by that, is the efficient cause of marriage, which is responsible for bringing about the 80 cf. rechard thomas and monique reeves, ‘mandatory reporting laws’ <https://www.ncbc.nlm.gov/books/nbk 56069> accessed on 21/7/2023. 81 ‘cultural sensitivity – wikipedia’ <https://en.m.wikipedia.org/wiki/culturalsensitivity#> accessed on 20/7/2023. 82 o’ connel et al ‘the power and purpose of international law: insights from the theory and practice of enforcement’ <https://www.corteidh.or.cr> accessed on 01/07/2023. 83 ‘civil society and ngo’s’ <https://vakilsearch.com/blog/civil-society-and-ngos#> accessed on 17/07/2023. 84 marriage is the basic unit of the family, and so, of the society. if it fails, the society fails to the detriment of all. the society rises and falls with the marriages contracted within it. 85 under the customary laws, parental consent is mandatory in the case of a bride-to be, irrespective of her age. no matter the rationale behind this rule of custom, the ‘mandatoriness’ of a consent other than that of the parties to the marriage sounds deterministic of marriage and is ipso facto ruinous of the requisite quality of voluntariness. the implication of making parental consent mandatory before marriage is that where the parents or family do not support a particular marriage preference of their ward(s), they can foreclose such transaction(s) notwithstanding the intensity of their ward(s) option. (cf. e. i. nwogugu, op.cit, p. 20). also, in royal marriages worldover, one finds another instance of the superposition of family preferences over the liberty of their ward(s) intention to marry. for instance, the royal marriages act of 1772 which was repealed on the 26th march, 2015 provided that no descendant of george ii, male or female, could marry without the consent of the reigning monarch. the regal consent was to be set out in the license and in the register of marriages, (cf. royal marriages act, 1772 <en.wikipedia.org/wiki/royal-marriages-act-1772/> accessed on 12/07/2023). 86 cf. d. composta, moral philosophy and social ethics (bangalore: theological publications in india, 1988) pp 132-133. https://www.ncbc.nlm.gov/books/nbk%2056069 https://en.m.wikipedia.org/wiki/culturalsensitivity https://www.corteidh.or.cr/ https://vakilsearch.com/blog/civil-society-and-ngos african customary and religious law review (acarelar) 4 (2023) 10 union in the first place. by reason of this, voluntariety becomes the single, indivisible, irrevocable, unsubstituted act of the will, manifested by the contracting parties, and which is effective for their union, rights and obligations.87 it is this matrimonial consensus that completes the exterior juridical element of marriage and drives the reciprocal donations preceding, accompanying and following the actual celebration of marriage.88 all in all, the notion of voluntariety in the contract of marriage and the challenge of duress thereof presents intricate and multifaceted issues that call for careful consideration. marriage, precisely as a union in which parties must contract willingly, with full understanding of their rights and responsibilities must be devoid of all shadows of constraints. that way, parties will contract with genuine consent without any undue influence. only in this way can the sacred institution be safeguarded against potential manipulations which make it difficult for parties to benefit maximally from it. while it is the case that modern states/legislatures have made significant strides in addressing issues of forced marriages and coercive practices connected thereto, this work recommends that the church, and other religious bodies, precisely as experts in humanity, should intervene with stronger moral orientations in marriage preparatory classes. doing this, they will aid in diffusing lingering incentives to involuntary marriages. particularly, homilies, preachings, workshops, conferences and pastoral letters are apropos. 87 cf. g. groppo, ‘orientations in the study of the natural origin of the society’ in thomas solasianum, xi, 1949, pp575ff. 88 d. composta, op.cit, p. 134. african customary and religious law review 1 (2020) page | 57 tax compliance by legal practitioners and the attendant prospects to governance in nigeria: a legal appraisal* abstract the expectation of the law is that legal practitioners like every other citizen of nigeria earning income are bound to pay tax. the tax payers are required to complete and file their tax returns correctly stating their income in the year of assessment. while complying with this basic requirement, a legal practitioner like any other tax payer will be allowed to make claims for expenses to be deducted and other reliefs available. but, it has been puzzling for legal practitioners to ask questions like are lawyers doing or involved in business? are lawyers supposed to pay tax? payment of tax is an obligation for all and sundry that makes income. this position of the law has not gone down well with legal practitioners. it has generated unnecessary embarrassment and avoidable frictions between relevant tax authorities and legal practitioners. this work appraises the different taxes legal practitioners are not immune from paying and exposes the attendant consequences for non-payment of tax on the individual legal practitioner and the society at large. the accelerated gains for the payment of tax on a particular legal practitioner and the overall impact on the society highlighted. doctrinal method of data collection was adopted and analytical approach used in examining the research materials like the constitution, tax statutes, judicial decisions, text books, journal articles and internet sources. the work discovered that the income from legal practice whether on a self employed status, either as a sole proprietorship, partnership or registered firms or lawyers in employment, (that is, those employed as employees who pay their taxes under pay-as-you-earn (paye) scheme is taxable, hence, legal practitioner is a taxable person. interestingly, tax laws provide for benefits accruing to a legal practitioner who honestly declares his tax and pays same as and when due and its benefit to the entire country in general. keywords: tax, legal practitioner, assessment, tax returns, income and taxable person. 1. introduction generally, every person resident in nigeria and/or earning income from a source inside or outside nigeria is bound as a matter of obligation to pay tax to his state of residence.1 the constitution2 makes same an obligation for every citizen to declare his income honestly to the appropriate and lawful agencies and promptly pay his tax. legal practitioners usually work as either employees or as self employed person.3 legal practitioners in practice are engaged either as sole proprietorship, partners or registered firm. legal practitioners in employment, that is, who work as employees pay taxes under pay as you earn (paye) scheme. under this system the employer is mandated to deduct the tax from the emoluments of the employee monthly and remit to the relevant tax authority. each of the taxes has a particular rate.4 tax laws provides taxes to be paid by legal practitioners, among them are personal income tax,5 value added tax,6 stamp duties tax,7 capital gains tax,8 stamp and numerous property taxes made by the local government bye-laws.9 the personal income tax act10 imposes tax for each year of assessment on the aggregate amount each of which is the income of every taxable person for the year from a source inside or outside nigeria including without restricting the generality of the foregoing as gains or profit from any trade or business, profession or vocation. every legal practitioner involved in legal practice is carrying on and makes income from the profession.11 in al-maseer law firm v firs,12 the court of appeal held that a lawyer in a firm of lawyers in private practice undoubtedly supplies legal services to the public for a fee and so are caught by the provision to pay tax. another good example is the stamp duties tax which is charged upon the general instruments specified in the act.13 stamp duties are taxes paid in perfecting documents. any instrument *by kachidobelu john bielu, bl, llm, phd, lecturer, faculty of law, nnamdi azikiwe university awka, anambra state, nigeria, +2348037443753, e-mail: kachbielu@gmail.com; kj.bielu@uizik.edu.ng. 1 k j bielu, lawyers as taxable persons under the value added tax act: an appraisal in ajlhr 4(1) 2000 at 53-60 2 constitution of the federal republic of nigeria, 1999 as amended. (cfrn) s.24 (f) 3 legal practitioner’s act,cap l11, lfn 20004, entitlement to practice as barristers and solicitors order. 4 personal income tax act, 2011 s.37 and the sixth schedule to the act, value added tax act (vat) act, 2007,s.4, however, see the finance act, 2019, s.34 which amended section 4 of vat act. 5 personal income tax (amendment) act, 2011 6 value added tax (amendment) act, 2007 7 stamp duties tax act, cap 58, laws of federation of nigeria (lfn 2004 8 capital gains tax act, cap ci lfn, 2004 9 bwari area council trade licence on private lockup shop and allied matters bye-law, (no3), 2016, bwari area council liquor licencing bye-law (no 9) 2016. kuje area council delegation of its control and regulation of outdoor advertisement and signage powers byelaw 2012. however, see the decisions in m.i nig ltd v eti-osa local government council & anor vol. 8 all ntc 389, aedc plc v bwari area council (2019) 41 tlrn 41 and aedc plc v kuje area council (2019) 42 tlrn 25 on the issue of whether or not local government had power or not to enact a bye-law to demand and collect levies. 10 pita (amendment) 2011, s.1 and 3 (10 (a) 11 al-maseer law firm v federal inland revenue service (2019) 12 nwlr (pt.1687) 555 12 supra at 571-572 13 stamp duties act, cap s8 lfn, 2004, s.3 and the schedule to the act mailto:bielu@uizik.edu.ng bielu: tax compliance by legal practitioners and the attendant prospects to governance in nigeria: a legal appraisal page | 58 executed in nigeria or relating where-so-ever executed, to any property situate or to any matter or thing done or be done in nigeria shall not except in criminal proceedings be given in evidence. documents shall be accepted when duty stamped in accordance with the law in force in nigeria at the time when it was first executed.14 2. definition of tax tax is defined as a monetary charge imposed by the government on persons, entities or property to yield public revenue. most broadly the term embraces all governmental impositions on the persons, property, privileged, occupations and enjoyment of the people and it includes all duties, imports and exercises.15 tax is a pecuniary burden laid upon individuals or property to support government, a payment exacted by legislative authority or compulsory contribution to the support of government levied on persons, property, income, commodities, transactions and others.16 in matthews v chicory marketing board (v),17 a tax was defined as a compulsory exaction of money by a public authority for public purposes or raising money for the purposes of government by means of contributions from individual persons. a tax therefore by general understanding of the term and as used in the constitution,18 signifies an exaction for the support of the government.19 importantly tax is not a voluntary donation or payment but enforced contribution exacted pursuant to legislative authority.20 3. objectives of taxation the major objectives are:(i) to raise revenue to finance government expenditure; and (ii) to influence activity in the economy as a whole. tax policy provides a mechanism for influencing consumer demand and for providing incentive for production, investment and savings. it is therefore a key factor in promoting the government overall economic and social objectives. tax is the most powerful macro-economic lever available to the governments, which can be used to promote growth to stimulate investment through tax concessions and to maintain a stable economy. being the most important and sustainable source of finance for a nations development, abdulrazaq21 summarized the functions and objectives of taxation to be, (a) rising of the revenue to meet government expenditure, (b) redistribution of wealth and (c) management of the economy. adam smith, in his treatise, ‘wealth of nations’22 set out the canons that are used as criteria for judging a good tax system as: equity: this is subdivided into horizontal and vertical equity. horizontal equity requires that those with the same income should pay equal amount of tax while vertical equity requires that those with different incomes should pay different amount of tax. it is believed that the strongest tax systems create fairness, assure adequacy, simplicity, transparency and promote administrative ease. certainty: tax which an individual has to pay should be certain not arbitrary. the tax payer should know in advance how much tax he has to pay, at what time he has to pay and in what form the tax is to be paid to the government. neutrality: a tax is neutral if it avoids distortions of the market. it does not discriminate between different activities in the economy. administrative efficiency: tax personnel must administer the tax system efficiently. the administrative cost should not exceed the revenues realized from tax. the appropriate arm of the sovereignty reposed with the power to impose tax is the legislature. 14 ibid, section 22(4) provides; except as aforesaid and subject to the provisions of section 91(3) of the act; but section 91(3) of the act also provided that where in any legal proceedings or before any arbitrator or referee may having regard to the literacy and ignorance of the party tendering having regard to the literacy and ignorance of the party tendering the receipts in evidence, admits the receipt upon payment of penalty upon the face of the receipt so admitted and receipt shall be given for the same. in okuwobi v ishola (1973) all nlr 233,. the magistrate rejected a document in accordance with section 67 of the property and conveyancing law 1959 of the western state of nigeria. 15 b a garner (ed) black’s law dictionary (10th edition, usa, thomson renters, st paul m n, 2014)1688 16 a b ahmed,; residence and permanent establishment issues in nigeria taxation in aeca tax law journal of nigeria, 2012 vol. 1, 97 17 (1938) 60 clr 263 at 276 18 cfrn, 1999 as amended, s 24(f), united states v buttler 2279 us (1963) 61, i a ayua, nigerian tax law (ibadan, spectrum’s law publishing, 1995) 25 19 united states v buttler 227 9 us (1936) 61 20 i a ayua, nigerian tax law (ibadan, spectrum’s law publishing, 1996) p25 21 mt abdulrazaq, nigerian revenue law (lagos, malthouse press ltd, 2005) 2 22 cited in i a ayua, nigerian tax law (ibadan, spectrum’s law publishing ltd, 996) p9 african customary and religious law review 1 (2020) page | 59 4. who is a legal practitioner? a legal practitioner is a person entitled to practice as a barrister and solicitor, whose name is one the roll.23 the name shall be on the roll only if he had been called to the bar by the benchers and he produces a certificate of his call to bar to the registrar.24 he is someone who having been licensed to practice law is qualified to advice people about legal matters, prepare contracts and other legal instruments and moreover represent people in court.25 a legal practitioner is a person, who because of his or her high ethical standards and knowledge gained through education and experience, meets the requirements of a state regulatory body and receives a licence to practice law in the state. from the above description, legal practitioners engage in virtually all fields of human endavour and therefore earn income which will in turn attract payment of tax. legal practitioner is therefore a person entitled in accordance with the provisions of the act26 to practice as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings. the remuneration for firms, partnership and individual legal practitioners are provided for under the act.27 the services provided by legal practitioners to clients are liable to tax. in al-maseer law firm v firs,28 the question was whether the services rendered in legal practice qualified as valuable services within the context of the provisions of the value added tax act. the value added tax act29 provides that supply of services means any service provided for consideration. legal practitioners provides or supply services to clients upon charges and clients as beneficiaries of those services pay for the services. legal practitioners as a matter of obligation know that the services they provide to the public are paid for or provided by the clients. as a duty added to this, the law enjoins the legal practitioner to keep records of transactions, operations and other related activities to valuable services sufficient to determine the correct amount of tax due. 5. legal practitioner income chargeable and the rate every legal practitioner involved in the legal practice is carrying on a profession and therefore income from it is chargeable to tax.30 for instance, under the personal income tax act,31 the rates at which taxes are paid are; i. first n300,000.00 at 7% ii. next n300,000.00 at 11% iii. next n500,000.00 at 15% iv. next n500,000.00 at 19% v. next n1,600,000.00 at 21% vi. above n3,200,000.00 at 24% the rate is applicable to employees of the federal, state and local governments as well as employees of the private sector. the rate of minimum tax under the act32 has been increased from 0.5 percent to one (1) percent of gross income. however, the schedule specifies that national housing fund contribution, the national health insurance scheme contribution, life assurance premium, the national pension scheme and gratuities are tax exempt. the rate is applicable to all persons and involves the total income, gain, salary, wage, fee, allowance or other gains, or premiums, benefits or other perquisites allowed, given or granted. for legal practitioners in private practice, the two major charges applicable are professional and appearance fees. legal practitioners are allowed some reliefs and deductions under the act,33 or where the lawyer falls within the exempt,34 he is excused or relieved of paying tax to that extent. the reliefs however, must be claimed as it is not granted as matter of course. in williams v regional tax board,35 the court held that in computing the chargeable income of the appellant, the sum of n600 which was annual rent of the apartment he uses exclusively for the earning of his income was rightly deducted as falling within the spirit and intendment of the words outgoing expenses as necessary for the carrying on of his profession. legal practitioner has other subtle means of making income which include appearance fee or transport allowance. in the view of umenweke36 on claims concerning appearance/ transport fees, he said; one may ask at this juncture, whether the appearance/transport or fuel fee by whatever name called received by leal practitioners for going to court from clients is taxable. if the 23 legal practitioners act , (lpa) cap l11 lfn 2004, s.2(1) 24 lpa, cap l11, lfn, s 7 (a) & (b) 25 b a garner, black’s law dictionary, 10th ed (thomson reuter, st. paul mn, west publishing co 2014) 1021. 26 lpa, s.24 27 ibid, s5.19 (3)(4), 15 and 16 28 (2019) 12 nwlr (pt1687) 555 29 value added tax (vat) act, 2007, s.46 30 pita, 2011, s.33(1) (1) (a) but legal practitioner’s in employment are charged under s.3(1) 81) (b) 31 ibid, s.37, the sixth schedule to the act. 32 pita 2011, s.27 33 ibid, s.3 (b) (1) – (xii) 34 ibid, s.19 and third schedule to the personal income tax act 35 vol. 1, all ntc 141-147 36 m n umenweke, ‘income tax law and assessment of tax payable by legal practitioners,’ court digest, justice and law in the society, vol. 12 october to december 2007, 3-19 bielu: tax compliance by legal practitioners and the attendant prospects to governance in nigeria: a legal appraisal page | 60 money represents a valid and accurate reimbursement of fuel and hotel expenses, then it is not taxable. in fact, most times it is not an accurate representation of the fuel and hotel expenses. legal practitioners’ who adopt this system of charging may move from his chambers to the courtroom a distance not more than 2 kilometers or at most 3 kilometers and collect n10,000.00 for each of the cases. the petrol needed to get to the court and back may not worth more than n1,000. if tear and wear is calculated, then the total expenses may not exceed n2,000.00. the lawyer pockets n6000.00 if he came for one case and pockets n30,000.00 if he came for 5 cases. the law is that that the balance of n6,000.00 or n30,000.00 as the case may be is taxable. it is a trend that some legal practitioners’ fees are drastically and at times ridiculously reduced as some relies on this transport/appearance fee to recover what they reduced from their professional fee. 6. legal basis for taxing legal practitioners it is well established that taxation is not an all comer’s affairs or an arbitrary issue. no tax can be imposed on or collected from the subject without the words of or an act of parliament clearly showing intent on it to lay a burden on the subject.37 it is the duty of a citizen to obey, oblige and comply with laws of the land and it is fundamental and concomitant with the duty of a citizen, more importantly a legal practitioner to pay tax.38 nigeria citizens are mandated to declare their income honestly to the appropriate and lawful agencies and pay their tax promptly.39 this is to the effect that legal practitioners who are nigeria citizens have a constitutional duty to pay taxes. taxes are paid by citizens to the government (lawyers inclusive) who earn income from such sources as enumerated by the law. taxes are spelt out by the constitution to be paid three tiers of government as follows; a. federal taxes include the items contained in the exclusive legislative lists40 which are customs and exercise duties, export duties, stamp duties, value added tax, taxes on corporate profits and gains41 respectively. b. state taxes include personal income tax, stamp duties on documents and transactions, capital gains and their taxes paid by individual legal practitioners. c. local government taxes which is in the form of tenement rates and property taxes. the personal income tax42 imposes tax on all incomes of persons, on the following incomes; a. gains or profits from any trade, business, profession or vocation b. remuneration (salary, wage, fees, allowance, gain, or profit, benefits and others) of an employment excluding sums paid to the employee; i. reimbursement of expenses incurred by him in the performance of his duties and from which it is not intended that the employee should make any profit or gain. ii. in respect of medical or dental expenses incurred by the employee. iii. in respect of any passage to or from nigeria incurred by the employee and others. value added tax is another tax payable by legal practitioners amongst other citizens. the act43 stipulates that the tax shall be charged and payable on the supply of goods and services other than those listed in the first schedule to the act. the rate of value added tax (vat)44 is 7.5%. the tax is monthly shared between the governments in the ratio of 15%, state 50% and the local government is 35%. the stamp duties tax is the duty charged upon instruments specified in the schedule to the act.45 the duties are paid as taxes for perfecting documents. for capital gains tax,46 it is paid on any capital gain, that is to say, gains accruing to any person (including legal practitioner) on the disposal of assets which is taxed at the rate of 10%. the chargeable assets include options, debts and incorporeal property generally, any currency other than nigeria currency and any form of property created by the person disposing of it or otherwise to be owned without being acquired. this is paid whenever there is a disposal of asset (land and building in practice) and receipt of any capital sum when gain accrues. lawyers who are self employed and have a registered company pays companies income tax. the act47 provides that companies income tax is chargeable on the income of all companies operating in nigeria except those specifically 37 a authority v regional tax board (1970) all nlr 177, scottish, widows lc & ors v commissioner for her majesty revenue and customs (scotlnd) and ors (2011) lpelr-17822, vodacom business nig ltd v firs (2018) 35 tlr 01 at 18 38 best children int’l sch v firs (2019) 4o tlrn 33 39 constitution of the federal republic of nigeria, 1999 as amended s.24 (f) and s.44 (2)(a). 40 cfrn, 1999 as amended, second schedule, part 1 item 16, 2, 58 and 59 41 finance act, 2020,part1, items subject to tax under capital gains 42 personal income tax (pita) s.3 (1) 43 value added tax (vat) act, 2007 s.2 44 finance act, 2020, s.34. this amended sections of the value added tax act, 2007 45 stamp duties tax act (sda) cap s8 lfn 2004 46 capital gains tax act, cap ci lfn, 2004 47 companies income tax act (cita) 2007. s.9 african customary and religious law review 1 (2020) page | 61 exempt.48 it is charged at 30% adjusted profit and from the dividends payable to the shareholders as withholding tax. local governments are expected under the law to enact bye-laws for the collection of tenement and other rates which must be consistent with the spirit, intentions and provisions of the constitution.49 the tenement is a locally assessed property tax payable also by the legal practitioner within the jurisdiction. from the above, the liability of legal practitioners to pay statutory taxes cannot be overemphasized. it behooves on the legal practitioners, therefore, to show an example and be in compliance with the law for prompt payment of tax. 7. taxes payable by a legal practitioner, exemptions’ and allowable deduction the taxes that are legally and validly payable by legal practitioners are clearly enumerated under the law.50 the discussion under paragraph 5 above is applicable and will suffice under this sub topic for personal income tax, with additions thus; i. in respect of the maintenance or education of a child; if any provision of this act provides that any such received by the employee during a year of assessment shall be granted to him for the next following year. ii. so much of any amount of rent the employee is treated as being in receipt equal to the annual amount deemed to be incurred by the employer under the act. iii. gain or profit including any premiums arising from right granted to any other person for the use or occupation of any property. iv. dividend, interest or discount v. any premium, charge or annuity value added tax the value added tax (vat) is payable by legal practitioner amongst other citizens or persons.51 this is charged and payable on the supply of goods and services other than services exempt,52 goods exempt53 and zero rated goods and services.54 the current rate of value added tax (vat) is 7.5%.55 in al-maseer law firm v firs,56 the question was whether legal services qualified as valuable services within the context of the value added tax act. the facts of the case was that sometime in may 2016, the firm received a letter from the respondent (firs) titled ‘non-rendition of vat returns wherein the appellant was required to charge its client 5% vat for professional fees and remit same to the respondent. the appellant also stated that another letter was served by the respondent demanding for the payment of the sum of n100,000.00 as best of judgment (boj) vat assessment. the appellant, however, claimed that it never registered with the respondent and a legal practitioner or law firm is not a taxable person under the vat act. the court of appeal rightly held;57 the value added tax act does not limit itself to only supplies of good but extends the duty of collection and remission of vat to also those who also supplies services. a lawyer or firm of lawyers in private practice undoubtedly supplies legal services to the public for a fee and so are caught by the provision and bound to charge and remit to the respondent value added tax act on the fees they charge their clients. a taxable person shall upon commencement of business, register with the service for the purpose of the tax.58 a taxable person who fails or refused to register with service within the time specified in subsection (1) is liable to pay as penalty an amount of;59 (a) n50,000 for the first month in which the failure occurs; and (b) n25,000 from each subsequent month in which the failure continues. there are also other offences like failure to keep proper records of accounts,60 failure to collect tax61 and failure to submit returns62 amongst others attract various stiff penalties. under the new regime,63 a taxable person who 48 cita s.23 (1) ©, pita, 2011, s.19(1) vat act, 2007, s.3 part iii of the schedule of the act 49 cfrn, 1999 as amended, part 2 second schedule, paras, 9 & 10 50 taxes and levies (approved list for collection ) act, cap t2 lfn 2004 51 value added tax (amendment) act, 2007 s.2 52 vat act, 2007, s.3 53 ibid, first schedule to the act, part i 54 ibid, first schedule to the act, part iii 55 finance act, 2019 s.34 which amended section 4 of vat act 56 (2019) 12 nwlr (pt 1687) 555. see also barr. odo v esirb (2020)52 tlrn27 57 supra at 572 58 finance act, 2019, s.35 which substitutes section 8(1) of vat act (amendment) 2007 59 ibid, which substitutes section 8(2) of at, 2007 60 ibid , s.33 61 ibid, s.34 62 finance act, 2019; s.44, 63 ibid, bielu: tax compliance by legal practitioners and the attendant prospects to governance in nigeria: a legal appraisal page | 62 fail to submit returns to the service is liable to a fine of n50,000.00 in the month of default and n25,000 of every month in which the default continues. stamp duties the stamp duties are charged upon the several instruments specified in the schedule to the act.64 the finance act65 gave the meaning of stamped to be with reference to instruments and material to mean instruments and material impressed with stamp by means of an engraved or linked block die, adhesive stamps affixed thereto as well as instruments and materials digitally tagged with electronic stamp or notional stamp on an electronic receipt. legal practitioners are involved in either the production or authentication of instruments readily for stamping. the law envisages that certificates of occupancy, appointment, bank guarantees, warrants of attorney, receipts, deeds, stock and share certificates, legacy, promissory notes, tenancy agreements, mortgage, charges and leases there from, oaths, affidavits and other like documents should be appropriately perfected by stamping them.66 capital gain tax this stipulates that gains accruing to any person (including lawyers) on or after the 1st day of april 1967 on disposal of assets.67 the rate of the tax is 10%.68 it is charged on the total amount of chargeable gains accruing to any person in the year of assessment after making such deductions as may be allowed under the act. the list of chargeable assets includes;69 (i) options, debts and in corporal property generally; (ii) any currency other than nigeria currency and. (iii) any form of property created by the person disposing of it, otherwise coming owned without being acquired. the properties in addition to the above include property which is an asset in respect of which qualifying expenditure has been incurred under the schedule to the companies income tax act or the petroleum profits tax act. the act exempts certain person or bodies and gains from the tax.70 it is expected that lawyers are to pay capital gains tax whenever they dispose of assets (land and buildings) and receive any capital sum where gain accrues. the law71provides that every person having disposed a chargeable asset shall, not later than 30 june and 31 december of that year, compute the capital gains tax, file self assessment return and pay the tax computed in respect of the chargeable assets disposed in the periods. companies income tax act tax is imposed under this act72 on the preceding year basis on: a) income tax at 30% of adjusted profit from whatever such profits are distributed to the shareholders or not. b) when dividends are payable, tax has to be deducted (presently at the rate of 10% of the amount of dividends) from the gross amount before the net is paid over to shareholders. this is the withholding tax on dividends. c) it is levied upon profit of any company accruing in, derived from, brought into or received in nigeria. there is however, the rural investment allowance73 to encourage investment in rural areas at the following rates; a. no facilities at all 100% b. no electricity 50% c. no water 30% d. no tarred road 15% legal practitioners who are self employed should always remember to claim capital allowances for their capital assets used in earning income. companies income tax is currently 30% of profits as adjusted by revenue authorities. in williams v regional tax board,74 the regional tax board refused the claims of the appellant in respect of the sum of n600 which he said should be deducted from his chargeable income before assessment and in respect of n186 which he said was charged to him by virtue of the provisions of the income tax and development contribution order, 1962. on appeal against the decision of the board, the claim of the appellant who was a legal practitioner carrying on his profession in an apartment in his own house as rent for the apartment which he used in the said house exclusively for earning his chargeable income was allowed. the reasoning of the 64 stamp duties act, cap s8 lfn, 2004 s.3 but see s.56 finance act, 2019 for the changes 65 finance at, 2019, s.52 66 ibid, s.65 (a) 67 capital gains tax act (cgta), cap c1 laws of the federation of nigeria, 2004 s.1(1) 68 cgta, lfn 2004 s.2(1) 69 cgta, lfn, 2004 s.3 70 ibid, s.226 (1& 2)and 27 (1 & 2) 71 finance act, 2020,s. 2 part 1 which amended section 2 of the capital gains tax act. 72 companies income tax act (cita) 2007 ,s.9 73 this is found in both pita and cita, capital allowances are deducted before arriving at tax table. 74 1 all ntc 141 african customary and religious law review 1 (2020) page | 63 court was that for the purpose of arriving at the balance of profits, all that expenditures which as necessary for the purpose of earning the receipts had to be deducted otherwise one would not arrive at the balance of profits, indeed, one would not ascertain, whether there was such a thing as profit or not. customs and exercise management the customs and exercise management act75 prescribes that tax on import and export duties shall be imposed on goods being imported and exported.76 a custom duty is a tariff or tax on the import of or export of goods. usually, there is a tariff which serves as the basis for imposing duties. these are listed in the custom, exercise tariff etc and consideration act.77 by the provisions of the taxes and levies (approved list for collection) act,78 a total 21 taxes were listed. the taxes that are legally and validly payable by lawyers are clearly prescribed. legal practitioners moreover, are subjected further to the payment of all other aforementioned taxes including many countless levies collected by the local government. now that tax payment by legal practitioners have obviously become a norm, tax payment by legal practitioner should not only be voluntarily paid but should be paid as when due. 8. rights of a legal practitioner to objections and appeal a legal practitioner who has reasons to believe that he has been assessed wrongly may object to the assessment that was made upon him to the appropriate tax authority.79 he shall by a notice in writing apply to the relevant tax authority to either review or revise the assessment. the application shall be made within 30 days of the service of the notice of assessment and shall specify the grounds upon which the objection is based.80 the relevant tax authority may upon the receipt of the objection require the person objecting to furnish such particulars and produce books of account and other documents that the relevant tax authority may deem necessary. the tax authority may summon any person that can give information which is material to the determination of the objection.81 after the tax payer who has objected to the assessment, agrees with the relevant tax authority as to correct amount of the tax chargeable, the assessment shall be amended accordingly and notice of it shall be served on the person.82 but if the person fails to agree with the relevant tax authority on the amount of tax chargeable, the relevant tax authority shall give notice of refusal to amend the assessment and may revise the assessment based on its best of judgment.83 in oando v firs,84 the court however held; ...and the act does not require a notice of refusal to amend (nora) from the tax authorities. therefore nora is not a requisite pre-action protocol for appeal against assessments. moreover the delay by the tax authority to issue a nora can also be deemed an issuance of nora. the position therefore, is that an applicant may appeal against the assessment or revised assessment where there is issuance of nora or not within 30 days of the issuance.85 in williams v adelaja & anor,86 the court welcomed the appeal against the tax authority on the ground that it failed to act judicially as adequate opportunity was not afforded to the appellant when it unilaterally increased the chargeable income without putting his interest into consideration. legal practitioners should note that appeals may lie to the state high court or federal high court as the case may be and to the court of appeal and the supreme court. 9. conclusion and recommendations legal practitioners are looked upon in the society as being versed in the knowledge of the law. they are not expected to be found among the law breakers. the expectation is that they will not be among person involved or associated with problems of avoidance and evasion of tax that have bedeviled the nigerian tax system. legal practitioners by their very training should spearhead the lead in the voluntary compliance to the payment of tax. the 100% compliance expectation on the legal practitioners is one on the stipulation of the constitution.87 legal practitioners stand a better chance to claim or ask for allowances, deductions and reliefs as provided under the 75 capp. c45, laws of the federal republic of nigeria (lfn) 2004 76 ibid, s.37 and 59 77 cap c49 laws of the federal republic of nigeria 78 cap t2, laws of the federal republic of nigeria (lfn) 2004 79 barr. odo v esirb(supra) 80 pita, 2011 as amended, s.58(1)31 81 ibid, s.58(2) 82 ibid, s. 58 83 ibid, see the proviso, oando v firs (2011) 4tlrn 113 84 supra 85 pita, 2011, s.60 86 1 all ntc 209 at 215 87 cfrn, 1999 s amended, s 24(f). this stipulated that legal practitioners and other citizen to declare their income honestly and pay his tax promptly to the appropriate and lawful agencies. bielu: tax compliance by legal practitioners and the attendant prospects to governance in nigeria: a legal appraisal page | 64 law as in williams v regional tax board.88 in williams v adelaja,89 a legal practitioner took advantage of his knowledge in law while in voluntary compliance, fully claimed deductions allowable for a tax payer. he succeeded in getting the court to declare that of the n600.00 should be deducted as expenditure for the payment of his law firm apartment in his own house before arriving at the balance of profits. again, in the case,90 following his insistence, the court voided another n186 levied for being illegal, unconstitutional and ultra vires. legal practitioners when in full and total compliance with the payment of tax must also ensure that there is commendable utilization of the tax revenue in the country. when legal practitioners take payment of tax as acceptable norm or way of life in nigeria, they will ensure that there is good use into which the tax payers’ money is put into for the benefit of the society. with the acceptance, legal practitioners will join the joint tax board to ensure that our society is a better place to live by all. for instance, legal practitioners will ensure that the provisions of the act91 which stipulates that a tax clearance certificate must be produced and certified by the relevant for the appointment or election into public office in nigeria. it means that when there is any political aspirant who did not pay his tax correctly and as when due,92 legal practitioners should insist that he be declared to lack moral capacity to occupy a political office and preside over the spending of taxes paid by law abiding citizens. this will cause everybody to sit up with respect to the payment of tax and this will help the society to be better. this will help the country to achieve maximum or total tax compliance. furthermore, with legal practitioners in the circle of citizens that complies with payment of tax, all illegal tax collections must stop. in attorney-general of cross river state & anor v mathew ojua,93 a legal practitioner and property owner in ikom, cross river state of nigeria served with assessment notices for payment of urban development tax, tenement rated, sanitation levy and refuse collection charges in respect of his properties located in ikom in 2005. he challenged the assessment as amounting to double taxation. moreover, legal practitioner’s will join in the education and enlightenments which should be made mandatory to encourage every citizen to build a culture of voluntary tax compliance. where legal practitioners pay taxes as and when due, they will serve as role models in attaining the culture of voluntary tax compliance and that will render good governance in the country for better living of the people of nigeria. legal practitioners like every other citizen in the country has a duty to pay tax as and when due. it is only when legal practitioners comply with the provisos of the tax laws, that they can claim rights and privileges like deductions allowances and reliefs under the tax law. legal practitioners in order to pay the correct tax should always keep record or accounts of their incomes and file returns of their income with the relevant tax authority promptly. a legal practitioner can only challenge the assessment coming from the relevant tax authority after he has filed his tax returns as and when due. failure by the legal practitioner to file his tax returns as and when due will create an avoidable opportunity for the appropriate tax authority to assess the legal practitioner based on a best of judgment. where the legal practitioner is wrongly assessed, legal practitioner conversant with the stipulations of the tax laws should challenge the action. compliance with the relevant tax laws by the legal practitioner will help build a compliance culture in nigeria. when legal practitioner pays tax as and when due, he stands a better chance to ensure good governance and utilization of tax payers’ money in nigeria. above all, legal practitioner who pays his tax as and when due, are harbinger of culture of tax compliance by all and sundry in nigeria. sensitization and orientation is imperative for legal practitioners on the importance of participation in tax matters. the need becomes more emphasized now that the country is struggling to shift from overdependence on oil revenue to tax revenue. a well sensitized legal practitioners will certainly become models to the society on the fundamentals and culture of tax compliance. their stand will become a challenge to the political class which will be forced to stick to the laid down rules in taxing, collecting and utilization of the tax revenue. legal practitioners should as a matter of urgency keep records of their income, this will help them to file their tax returns to the relevant tax authority and pay their tax as and when due, insist on taking advantage of the reliefs and other allowable deductions under the law to reduce the amount to be paid. with this the opportunity for taxing them on best of judgment or blanket assessment will be avoided. 88 supra 89 supra 90 supra 91 pta, 2011, s.85(4) (5) 92 gwatawa & anor v balawai & ors, 4 all ntc 299, oyaleke v alamu & anor, 4 all ntc 89, and ango v achida, 4 all ntc 161 93 7 all ntc 167 african customary and religious law review (acarelar) 5 (2024) 33 | p a g e an assessment of the regulatory framework for african traditional medicinal practice in nigeria* abstract traditional medicine (tm) by world health organization (who) is the totality of knowledge, skills, and practices based on theories, beliefs, and experiences indigenous to different cultures, whether explicable or not, used in the maintenance and preservation of health, whether physical or mental. african traditional medicine is the holistic healthcare system specializing on divination, spiritualism, and herbalism. in nigeria, most indigenes rely on tm to meet their primary healthcare needs. who’s strategy for tm is to promote tm integration and complementary and alternative medicine (cam) into the healthcare systems of countries. therefore, the aim of this study was to critically assess the regulatory framework for traditional medicinal practice in nigeria. the research methodology was doctrinal approach, using expository and analytical research design. the main sources of data collection were literatures from physical library and e-library. this research found, among others, that there is need to have a working national framework for the safe practice of tm in nigeria. thus, this research recommended, among others, a distinct national framework for the practice of tm in nigeria which will also establish a functioning regulatory institution in various states, thereby ensuring proper regulation and enlightenment in this milieu. keywords: alternative, complementary, traditional medicine, regulatory framework, nigeria, assessment 1. introduction governments all over the world are increasingly embracing and recognizing trado-medical practice which been propelled by the fact that many diseases which have proven resistant to orthodox medicine requires attention from alternative therapy. the challenge of adopting trado-medical practice into the mainstream health care sector is that it is not backed with a specific legislation regulating its practice and practitioners. in most developing countries, including nigeria, the majority of the populace lives in the rural areas, where the use of herbal medicines is common. the use of herbal medicines in the urban areas is on the increase, arising from the global inflationary trend, which hampers the sustainable supply of orthodox medicines and reduces the purchasing power of the populace.1 basically, traditional medicine occupies a pivotal position in the nigerian rural health service delivery system which cannot be neglected. this poses a major problem in the necessity to create statutory flavour, institutional basis and an enabling environment for the development of traditional medicine and its eventual integration into the health care delivery system of the country. these weaknesses also include the unverifiable and inexplicable aspects of occultic/witchcraft practices, the practitioners lacking the skill for correct diagnosis of serious disorders, inadequate coordination of practitioners’ activities giving room to dubious and unscrupulous elements. also, it a problem to effectively regulate and sustain the opportunities which exist for traditional medicine practice which include existence of a virile herbs and leaves traditional medicines practitioners’ association of nigeria, large number of population of traditional medical practitioners with great spread over all ethnic groups coupled with a large nigerian population of about 170million consumers.2 there are also threats in the activities and practices of charlatans, the importation of higher quality traditional medicine products and the reality of some herbs are going into extinction of which these problems could be addressed through a working legislation and institution. this is manifested in the nigeria government’s reluctance to accord medicine its primate position in the healthcare delivery system. as a matter of fact, traditional medicine is practiced in nigeria today without enabling national legislation that will regulate its practice as obtained in many parts of the world.3 however, many states in the country have established traditional medicine boards/agencies to monitor the activities of its practitioners. given these quandaries, the crux of the matter for this article is to critically assess the regulatory framework for african traditional medicinal practice in nigeria. 2. conceptual analysis of african traditional medicine traditional medicine (tm) is the sum total of the knowledge, skills, and practices based on the theories, beliefs, and experiences indigenous to different cultures, whether explicable or not, used in the maintenance of health as well as in the prevention, diagnosis, improvement or treatment of physical and mental illness.4 tm includes herbal medicine, bone setting, spiritual therapies, circumcision, maternity care, psychiatric care, massage therapy, *by pius osunyikanmi, llb, llm, phd, formerly adjunct lecturer, department of private and public law, faculty of law, adekunle ajasin university, akungba akoko, nigeria. email: <osunyikanmi2003@gmail.com> phone no: +2348034711143 / +2348148022385 1 ‘regulation of herbal medicines in nigeria: the role of the national agency for food and drug administration and control (nafdac)’ online source <https://doi.org/10.1016/s1572-557x (02)80030-7getrightsandcontent> accessed 10 may, 2024. 2 a o ajala, ‘traditional medicine practices in nigeria: a swot analysis’ (2019) (10) (2) international journal of mechanical engineering and technology (ijmet) (iaeme publication scopus indexed) p. 117-26. 3 world health organization, ‘legal status of traditional medicine and complimentary/lternative medicine: a worldwide review’ <who.int/medicinedocs/en/jh2943e/432/html> accessed 10 may 2024. 4 world health organisation, who, ‘traditional medicine’ (2008) fact sheet, p. 134. osunyikanmi: an assessment of the regulatory framework for african traditional medicinal practice in nigeria 34 | p a g e aromatherapy, music therapy, homeopathy and a lot of others.5 section 2 of delta state traditional board edict provides that ‘traditional medicine include prescription, treatment, concoction or and drugs indigenous to the nigerian traditional society intended for curing or preventing disease or any form of ill health.’6 a traditional medicine practitioner mean a provider or purveyor of traditional medicine and includes herbalists, bone setters, traditional birth attendants and midwives, healers, of psychological and allied illness, traditional surgery herbal healers and every other person whose beneficial practices fall within traditional medicine practice.7 african traditional medicine is a form of holistic health care system organized into three levels of specialty, namely divination, spiritualism, and herbalism. the traditional healer provides health care services based on culture, religious background, knowledge, attitudes, and beliefs that are prevalent in his community. illness is regarded as having both natural and supernatural causes and thus must be treated by both physical and spiritual means, using divination, incantations, animal sacrifice, exorcism, and herbs. herbal medicine has been an integral part of healthcare in nigeria for centuries, deeply rooted in the country's rich cultural heritage and traditional healing practices. in a nation where cultural diversity thrives, herbal remedies have served as primary healthcare options for millions, offering an alternative to conventional medicine, particularly in rural and underserved communities. however, as nigeria advances towards modernization and global integration, the regulation of herbal medicine stands as a pressing challenge, necessitating a delicate balance between preserving traditional practices and upholding modern healthcare standards.8 in african traditional setting, there was always an explanation as to why someone was suffering from a certain disease at a particular time. according to ayodele9, diseases mostly revolve around witchcraft/sorcery, gods or ancestors, natural, as well as inherited. illness in the african society is different from the allopathic western medicine point of view. illness is believed to be of natural, cultural, or social origin.10 cultural or social illness is thought to be related to supernatural causes such as angered spirits, witchcraft, or alien/evil spirits, even for conditions now known to be well understood in modern medicine such as hypertension, sickle-cell anemia, cardiomyopathies, and diabetes. african traditional beliefs consider the human being as being made up of physical, spiritual, moral, and social aspects. the functioning of these three aspects in harmony signified good health, while if any aspect should be out of balance, it signified sickness. thus, the treatment of an ill person involves not only aiding his/her physical being but may also involve the spiritual, moral, and social components of being as well. many traditional medical practitioners are good psychotherapists, proficient in faith healing (spiritual healing), therapeutic occultism, circumcision of the male and female, tribal marks, treatment of snake bites, treatment of whitlow, removal of tuberculosis lymphadenitis in the neck, cutting the umbilical cord, piercing ear lobes, removal of the uvula, extracting a carious tooth, abdominal surgery, infections, midwifery, and so on. according to kofi-tsekpo,11 the term ‘african traditional medicine’ is not synonymous with ‘alternative and complementary medicine.’ african traditional medicine is the african indigenous system of health care and therefore cannot be seen as an alternative. nigeria boasts of a diverse array of indigenous healing traditions, encompassing herbal remedies, spiritual rituals, and ancestral knowledge passed down through generations.12 these practices are deeply embedded in the fabric of nigerian culture, reflecting the country's rich biodiversity and cultural diversity. herbal medicine, in particular, plays a pivotal role in addressing various health conditions, ranging from common ailments to chronic diseases, and has been a cornerstone of healthcare delivery in both rural and urban settings.13 amidst the cultural significance and widespread use of herbal medicine, concerns regarding safety, efficacy, and standardization have emerged as critical issues.14 while traditional healers possess invaluable knowledge and expertise, the lack of regulatory oversight raises challenges in ensuring quality control, proper dosage, and accurate labeling of herbal 5 t i borokini and i o lawal, ‘traditional medicine practices among the yoruba people of nigeria: a historical perspective’ (2014) journal of medicinal plants studies 2(6). 6 delta state traditional board edict, section 2. 7 ibid, also per makwe (dictum) ibodje v. delta state traditional medicine board, nigeria (2011) 1 dlr 11. 8 m a eruaga, e o itua and j t bature, ‘exploring herbal medicine regulation in nigeria: balancing traditional practices with modern standards’ (2024) (18) (03) gsc advanced research and reviews, pp. 83–90. 9 s j ayodele, ‘the yoruba cultural construction of health and illness’ (2002) (11) (3) nordic journal of african studies (university of ibadan press) pp. 322-35. 10 p white, ‘the concept of disease and healthcare in african traditional religion in ghana’ (2015) (71) (3) hts theological studies, pp. 5-17. 11 m kofi-tsekpo, ‘institutionalization of african traditional medicine in healthcare systems in africa’ (2004) (11) african journal of health sciences. pp. i-ii. 12 g g akunna, c a lucyann, and l c saalu, ‘rooted in tradition, thriving in the present: the future and sustainability of herbal medicine in nigeria’s healthcare landscape.’ (2023) journal of innovations in medical research 2(11), pp.28-40. 13 a shaito, ‘herbal medicine for cardiovascular diseases: efficacy, mechanisms, and safety’ (2022) frontiers in pharmacology, 11, p. 422. 14 a s chopra and others, ‘the current use and evolving landscape of nutraceuticals’ (2022) pharmacological research, 175, p. 106. african customary and religious law review (acarelar) 5 (2024) 35 | p a g e remedies.15 moreover, as nigeria strives to achieve universal healthcare coverage and improve healthcare outcomes, integrating traditional medicine into the formal healthcare system becomes imperative, necessitating effective regulation to protect public health and promote patient safety.16 the increasing popularity and demand for tm services in nigeria has attracted the attention of policy makers, researchers and healthcare professionals. although social and cultural issues as well as the nature and severity of diseases constitute some reasons for tm use17 it is difficult to completely unravel what accounts for the vast level of patronage of unorthodox health products and measures employed as tm.18 according to niggemann and grüber,19 tm use has often been seen as popular because of its seeming harmlessness since most of tm is considered to be natural. other reasons for its popularity are attributed to its availability, low cost, accessibility, alignment with patient’s cultural and religious values, and perceived efficacy and safety as well as dissatisfaction with and inadequacy and inaccessibility of orthodox medical healthcare services.20 traditional medicine has impacted significantly on the lives of the people especially in the rural areas where access to orthodox medicine is minimal. aside lack of access, the prohibitive cost of western medications makes traditional medicine attractive. on the other hand, who21 reported that they are detested by orthodox medical practitioners for their lack of standardization of the dosage regimen, unwanted side effects that arise from the varied nature of combined elements, injuries resulting from mechanical procedure of treatment and increased diagnostic and treatment failures that follow poor training of most providers. notwithstanding all the above, it must be stressed that tm has a major persuasive appeal to many people. 3. regulatory framework of african traditional medicinal practice in nigeria in nigeria, the regulation of herbal medicine is governed by various regulatory bodies, including the national agency for food and drug administration and control (nafdac), the traditional medicine development division (tmdd) of the ministry of health, and state-level agencies.22 these regulatory structures aim to oversee the manufacturing, importation, distribution, and sale of herbal products, ensuring compliance with safety, efficacy, and quality standards. additionally, there are traditional medicine councils at both federal and state levels, which collaborate with traditional healers to promote regulation and standardization within the traditional medicine sector.23 the existing regulatory frameworks in nigeria have made significant strides in formalizing the herbal medicine sector and enhancing consumer protection.24 they have helped to create awareness about the importance of quality control, good manufacturing practices, and product labeling. however, weaknesses persist, including inadequate enforcement of regulations, limited resources for monitoring and inspection, and challenges in coordinating efforts between regulatory agencies.25 moreover, there is a lack of harmonization between national and state-level regulations, leading to inconsistencies in implementation and oversight. several gaps exist in the regulatory frameworks governing herbal medicine in nigeria, with significant implications for public health and safety.26 these include the absence of standardized training and certification requirements for herbal practitioners, which can lead to variations in practice and quality of care. additionally, there is a lack of comprehensive data on the safety and efficacy of herbal remedies, making it difficult to assess 15 e y enioutina and others, ‘how can we improve the safe use of herbal medicine and other natural products?’ expert review of clinical pharmacology, 13(9), pp. 935-44. 16 c jansen, ‘medicine in motion: opportunities, challenges and data analytics-based solutions for traditional medicine integration into western medical practice’ (2021) journal of ethnopharmacology, 267, p. 113-47. 17 j l onyiapat, i l okoronkwo and n p ogbonnaya, ‘complementary and alternative medicine use among adults in enugu, nigeria’ (2011) bmc complement altern med obafemi awolowo university, vol. 30 no. 1. 18 world health organisation (who), ‘traditional medicine’ (2003) fact sheet. no. 134. 19 b niggemann and c grüber, ‘side-effects of complementary and alternative medicine’ (2003) (58) allergy journal, pp. 707-16. 20 t adefolaju, ‘traditional and orthodox medical systems in nigeria: the imperative of a synthesis.’ (2014) american journal of health research. vol. 2, no. 4, pp. 118-124. doi: 10.11648/j.ajhr.20140204.13. 21 world health organisation (who), ‘traditional medicine’ (2003) fact sheet. no. 134. 22 a f ojonugwa, d gwom and s gwom, ‘the role and challenges of the national agency for food and drug administration and regulation of alternative medicine in nigeria’ (2021) world health, pp 21-45. 23 o m kasilo and c wambebe, ‘traditional and complementary medicine in global health care’ in handbook of global health (cham springer international publishing 2021) pp. 1-47. 24 t c odubo, ‘socioeconomic values of herbal medicine’ in herbal medicine phytochemistry: applications and trends (cham springer international publishing, 2023) p. 31. 25 a o noah, p adhikari, b o ogundele and h yazdifar, ‘corporate environmental accountability in nigeria: an example of regulatory failure and regulatory capture’ (2021) journal of accounting in emerging economies, 11(1), pp. 70-93. 26 y a adebisi and others, ‘revisiting the issue of access to medicines in africa: challenges and recommendations’ (2002) public health challenges, 1(2), p. 9. osunyikanmi: an assessment of the regulatory framework for african traditional medicinal practice in nigeria 36 | p a g e their risks and benefits accurately.27 furthermore, the proliferation of unregistered and unregulated herbal products in the market poses serious health risks to consumers, including contamination, adulteration, and drug interactions. addressing these gaps requires concerted efforts to strengthen regulatory capacity, enhance collaboration between stakeholders, and promote evidence-based practices in the herbal medicine sector.28 in some countries, especially china29 and india30 the policy direction is to train, retrain trado-medical practitioners and control their practice by special national legislation. some african countries like ghana are presently emulating these other countries to update traditional medicine and practice.31 before attempting to gauge the impact of the regulatory mechanisms of trado medical practice in nigeria, it is pertinent to highlight the said mechanisms which is a combination of legislation, institutions and agencies at all levels.32 4. option of complementary and alternative medicine (cam) and effort to regulate in nigeria complementary and alternative medical council of nigeria33 promotes the growth and regulate the practice of alternative medicine in nigeria. when traditional medicine is adopted outside its traditional culture, it is often referred to as ‘complementary and alternative medicine (cam).’ under the enabling law, the cam council is primarily concerned with the alternative and complementary medicine to the exclusion of traditional medicine,34 but an analysis of this agency as part of the regulatory framework becomes germane due to the fact that traditional medicine and complimentary/alternative medicine are used interchangeably in some countries. complementary and alternative medicine (cam) practice in nigeria is very comprehensive covering many areas with various forms and therapies such as herbal medicine, massage, homeopathy, mud bath, music therapy, wax bath, reflexology, dance therapy, hydrotherapy, mind and spirit therapies, dieting, spinal manipulation, psychotherapy, bone setting, delivery by traditional birth attendants, circumcision by traditional surgeons, traditional medicinal ingredient dealers.35 this is another threat which is the issue of secrecy of the cam practitioners. some of their procedures cannot be learnt by outsiders. the expertise was regarded as secret and was passed down within family members as inheritance. as a result of the poor literacy level of some of the tm practitioners and their secrecy, a lot of useful information has perished with aged originators due to lack of organized record keeping and documentation. most traditional medicine practitioners in nigeria regard the medicine they use as their personal property and conduct their practices under strict confidentiality.36 the complementary and alternative medicine bill sets up the council and charges the council with the following responsibilities: prepare and formulate criteria and standards for the registration and maintenance of an e-register of complementary and alternative medical practitioners in nigeria;37 determine what standards of knowledge and skill are to be attained by persons seeking to become members of the relevant professions and raising those standards from time to time as circumstances may require;38 secure in accordance with the provision of this act the establishments and maintenance of an e-register of persons registered under this act as members of the relevant profession and to publish from time to time the list of those members;39 conduct assessment examinations in the relevant disciplines, register and /or issue practicing license to qualified candidates as appropriate, and for such purpose as the council shall prescribe fees in respect thereof;40 create and regularly upgrade minimum standard required for the establishment of clinics, hospitals of complementary and alternative medicine;41 register, deregister, expel, suspend, seal and apply any form of disciplinary measure that is deemed fit by the council for any erring practitioner, clinic, hospital, or private medical institution of complementary and alternative medicine;42 27 e faulkner, ‘being precise about precision medicine: what should value frameworks incorporate to address precision medicine?’ (2020) a report of the personalized precision medicine special interest group value in health, 23(5), pp. 52939. 28 y veziari, s kumar and m leach, ‘addressing barriers to the conduct and application of research in complementary and alternative medicine: a scoping review’ (2021) bmc complementary medicine and therapies, 21(1), pp. 1-12. 29 who, ‘traditional herbal medicine and human health: regulatory situation of herbal medicines: a worldwide review’ online source <http://www.allcountries.org/health/traditional_medicine.html.> accessed 10 may 2024. 30 the central council of indian medicine act of 1970. 31 t. m. p act, s.8 17 (2000) which establishes a council to regulate the practice of traditional medicine, register practitioners and issue them with practicing licenses in ghana. the act also regulates the preparation and sale of herbal medicines. 32 e a okojie, ‘impacts of regulatory mechanisms on trado-medical practice in nigeria’ (2015) journal of law, policy and globalization, p. 5, issn 2224-3240. 33 complementary and alternative medical council of nigeria bill. 34 ibid, s. 14 of the bill. 35 t adefolaju, ‘the dynamics and changing structure of traditional healing system in nigeria’ (2011) int j health res.; 4(2):99-106. 36 ibid. 37 complementary and alternative medical council of nigeria bill, s. 4 (1) (a). 38 ibid, s 4 (1) (b). 39 ibid, s. 4 (1) (c). 40 ibid, s. 4 (1) (d). 41 ibid, s. 4 (1) (e). 42 ibid, s. 4 (1) (f). african customary and religious law review (acarelar) 5 (2024) 37 | p a g e validate through scientific research the various claims on complimentary an alternative medicine products by the manufacturers and practitioners;43 promotion of scientific research and clinical trials in complementary and alternative medicine;44 collate, publish, disseminate and exchange information on complementary and alternative medicine research;45 establish a data base management system/library on all forms of alternative complimentary medicine resources;46 determine the standards required for academic and nonacademic staff, offices, classrooms, structures, equipment and learning environment in respect of institution(s) established in nigeria for the purpose of awarding certificates of diplomas and degrees in any discipline(s) of complementary and alternatives medicine;47 evaluate foreign diplomas and degrees in any discipline(s) of complementary and alternatives medicine for purposes of registering the practitioner in nigeria;48 ensure he full integration of complementary and alternative medicine in the national healthcare delivery system;49 promote integration between practitioner’s complementary and alternative and other health related workers;50 and to carry out any other activity that would assist in achieving the objectives of the council.51 despite the elaborate functions and scope of the council as enumerated in the bill, the bill has not been passed into law therefore rendering the proposed regulation of alternative medicine via the bill impossible. we humbly contend that this provision therefore compromises the independence of the council. our argument on this point is further justified by section 3(3)(a)–(c) of the bill which empowers the president to remove a member of the council at any time for either the inability of that member to discharge the functions of the office (whether rising from infirmity of mind or any other cause) or for misconduct or if the president is satisfied it is not in the interest of the council that the member should continue in office.52 5. challenges to regulatory framework the problems of traditional medicine may seem unlimited and invariable challenging effort to viable regulations. this is because, apart from the legal and institutional framework, there is also lack of financial support for production and dissemination of key species for cultivation, limited human resources knowledgeable on process technology and development of industries, the low prices paid for traditional medicinal plants by herbal medicine traders and urban herbalists, lack of appropriate technology for post-harvest and pre-processing purposes adapted productivity and insufficient documentation for verification of the traditional health practitioner’s claims on quality, safety and efficacy. there is also lack of preservation of medicinal extracts for extended shelf life. erinosho buttresses that traditional medical practice, in spite of its popularity has been challenged on many grounds.53 one of such is that its popularity is based on the anecdotal experiences of patients. osborne notes that the practitioners inflate the claims attached to advertisement and its products as well as not having scientific data about its effectiveness, thus making it difficult to ascertain legitimate and effective therapy and therapist.54 some of the other arguments against traditional medicine according to erinoso include the fact that: traditional medical practitioners lack the skills required for correct diagnosis of serious disorders, that they are always unwilling to accept the limitations of their knowledge, skills and medicines particularly in complicated organic disorders, also that traditional medicine lacks standard dosage and have not been subjected to scientific verifications. that even though the educated are convinced, the healers have supernatural knowledge and that this knowledge is medically useful, they have found them to be unscrupulous and dubious, and that the healers lack the equipment required to conduct physical examinations.55 in a similar vein, the national agency for food and drug administration and control (nafdac)56 expressed the challenges being faced in regulating traditional medicines to include, lack of documentation, inadequate coordination of the practitioners’ activities, poor communication between the practitioners and their patients, secrecy of actual contents and/or difficulty in determining actual ingredients. furthermore, most of the claims of the traditional practitioners are said to be unsubstantiated and their postmarket monitoring has been difficult. patients are also said to have reported adverse reactions. 43 ibid, s. 4 (1) (g). 44 ibid, s. 4 (1) (h). 45 ibid, s. 4 (1) (i). 46 ibid, s. 4 (1) (j). 47 ibid, s. 4 (1) (k). 48 ibid, s. 4 (1) (l). 49 ibid, s. 4 (1) (m). 50 ibid, s. 4 (1) (n). 51 ibid, s. 4 (1) (o). 52 e a okojie, ‘impacts of regulatory mechanisms on trado-medical practice in nigeria’ (2015) journal of law, policy and globalization, p. 5, issn 2224-3240. 53 o a erinoso, health sociology (ibadan, sam bookman educational communication services 2021) p. 88. 54 o osborne, healthcare dystem in post-colonial africa (microsoft student publishers 2007) p. 29. 55 erinoso (n61) p.89. 56 the nation, august 28, 2008, p. 44. osunyikanmi: an assessment of the regulatory framework for african traditional medicinal practice in nigeria 38 | p a g e long before the advent of western medicine, africans had developed their own effective way of dealing with diseases, whether they had spiritual or physical causes, with little or no side effect.57 as posited by ozioma and okaka,58 african traditional medicine, of which herbal medicine is the most prevalent form, continues to be a relevant form of primary health care despite the existence of conventional western medicine. improved plant identification, methods of preparation, and scientific investigations have increased the credibility and acceptability of herbal drugs. on the other hand, increased awareness and understanding have equally decreased the mysticism and ‘gimmicks’ associated with the curative properties of herbs. as such, a host of herbal medicines have become generally regarded as safe and effective. this, however, has also created room for quackery, massive production, and sales of all sorts of substandard herbal medicines, as the business has been found to be lucrative.59 akinleye, corroborated this when he identifies some of the drawbacks of traditional medicine as incorrect diagnosis, imprecise dosage, low hygiene standards, the secrecy of some healing methods and the absence of written records about the patients.60 traditional medicine practice in nigeria, however, faces greater challenges in the hands of government officials who look at it with disdain and disrespect. this is a carry-over from the colonialists who ‘needed’ to uproot this traditional medical practice for their own medical system to thrive and therefore portrayed the former as nothing more than witchcraft and fetish. their successor, the nigerian elite, despite the cultural background, was not better as the western propaganda had been infused to smear the historical and the indigenous health care system.61 this is manifested in the nigeria government’s reluctance to accord medicine its primate position in the healthcare delivery system. as a matter of fact, traditional medicine is practiced in nigeria today without enabling national legislation that will regulate its practice as obtained in many parts of the world.62 however, many states in the country have established traditional medicine boards/agencies to monitor the activities of its practitioners. given these quandaries, the crux of the challenges is underpinned with ethical issues, sustainability, the secrecy of practitioners and poor documentation of its procedures, tribalism and religion, possibility of drug interaction when used with orthodox medicine. 6. prospects of regulatory framework for the practice of african traditional medicine effective regulation of african traditional medicinal practice in nigeria would be viable with collaboration and dialogue between traditional healers and modern healthcare practitioners. by fostering mutual respect, understanding, and partnership, regulatory agencies can harness the expertise of traditional healers while integrating evidence-based practices into the formal healthcare system. this collaboration can involve joint training programs, interdisciplinary workshops, and advisory committees to develop guidelines and protocols for safe and effective herbal medicine use.63 to enhance regulation, there is a need to promote research and evidencebased practices in traditional medicine. this involves supporting scientific studies on the safety, efficacy, and pharmacological properties of medicinal plants, as well as clinical trials to evaluate their effectiveness in treating specific health conditions. by generating robust evidence, regulatory agencies can make informed decisions about product registration, quality standards, and dosage recommendations, thereby improving the credibility and acceptance of herbal medicine within the healthcare community. empowering traditional medicinal practitioners and consumers through capacity building and education is essential for effective regulation.64 training programs can provide practitioners with knowledge and skills in quality control, good manufacturing practices, and regulatory compliance, enabling them to produce safe and standardized herbal products. similarly, consumer education initiatives would raise awareness about the risks and benefits of traditional medicine, helping individuals make informed choices and seek appropriate healthcare advice.65 policy reforms are essential to address the evolving landscape of traditional medicine regulation in nigeria. this includes updating and harmonizing existing regulations to ensure consistency and effectiveness across national and state levels.66 additionally, policymakers should prioritize the integration of traditional medicine into the formal healthcare system, recognizing its role in expanding access to healthcare services, particularly in 57 i trinter, ‘african traditional healers: cultural and religious beliefs intertwined in a holistic way’ (2007) (74) (8) south african pharmaceutical journal pp. 56-60. 58 e j ozioma and a n c okaka, ‘herbal medicines in african traditional medicine’ in p f builders (ed.), herbal medicine (intech open limited 2019). 59 ibid. 60 o b akinleye ‘plants and their products: natural wealth for better economic and primary health care delivery in nigeria’ prof. e. k. obiakor lecture series (the federal polytechnic, ado-ekiti. 7th august 2008). 61 t adefolaju, ‘the dynamics and changing structure of traditional healing system in nigeria’ (2011) (4) (2) international journal of health research, pp. 99-106. 62 world health organization, ‘legal status of traditional medicine and complimentary/lternative medicine: a worldwide review’ <who.int/medicinedocs/en/jh2943e/432/html> accessed 10 may 2024. 63 g e a okojie, ‘impacts of regulatory mechanisms on trado-medical practice in nigeria’ (2015) journal of law, policy and globalization, p. 15, issn 2224-3240. 64 ibid. 65 ibid. 66 ibid. african customary and religious law review (acarelar) 5 (2024) 39 | p a g e underserved communities. furthermore, increased investment in research, infrastructure, and capacity building to support evidence-based regulation and innovation in the traditional medicine sector is a watch-out. to enhance regulatory mechanisms, stakeholders must address remaining challenges such as inadequate enforcement, lack of standardized training, and limited public awareness.67 this requires strengthening regulatory capacity through increased funding, manpower, and technology for monitoring, inspection, and enforcement activities. additionally, efforts should focus on improving collaboration between regulatory agencies, traditional healers, healthcare practitioners, and consumers to foster a shared understanding of regulatory requirements and promote compliance with best practices. the future of traditional medicine regulation in nigeria holds promise for continued progress and innovation. with growing recognition of the importance of traditional medicine in healthcare delivery, there is an opportunity to build upon existing regulatory frameworks to create a more inclusive and sustainable system.68 this includes leveraging advancements in science and technology to enhance product quality, safety, and efficacy, while preserving and respecting traditional knowledge systems. by embracing a holistic approach that balances tradition and modernity, nigeria can chart a path towards a regulatory environment that promotes the health and well-being of its citizens.69 succinctly put, the future of african traditional medicine is bright if viewed in the context of service provision, increase of health care coverage, economic potential, and poverty reduction, thus regulating accordingly. formal recognition and integration of traditional medicine into conventional medicine, through viable legislation and institutional frameworks, will hold much promise for the future. 7. conclusion and recommendations from the foregoing, the regulation of traditional medicine in nigeria presents a complex and multifaceted challenge that requires a nuanced and collaborative approach. from the historical evolution of traditional medicine to the current regulatory landscape, this article has highlighted the importance of balancing traditional practices with modern standards to ensure the safety, efficacy, and accessibility of traditional medicine remedies. the importance of balancing tradition and modernity in trado-medicine regulation cannot be overstated. while traditional healing practices hold cultural significance and provide valuable healthcare options, they must also adhere to contemporary standards of safety, quality, and accountability. by embracing a harmonized approach that respects cultural heritage while promoting evidence-based practices, regulators can foster a healthcare system that integrates the best of both traditional and modern medicine. in view of the analysis, it is concluded that traditional medicine occupies a pivotal position in the nigerian rural health service delivery system which cannot be neglected but rather need be improved. while it is the truth and general belief that health care delivery system in nigeria is very poor, traditional medicine because of its obvious availability, accessibility, affordability and effectiveness is relied upon for care and cure by more than 80 per cent of the population, it therefore deserves to be fully developed, regulated and sustained by all stakeholders. thus, government should stop giving a lip-service commitment to traditional medicine but rather creating an enabling environment for its development and eventual integration into the rural health care delivery system of the country and for the benefit of the people. the establishment of colleges of natural medicine in some selected universities and the full registration of traditional medicine clinics to ensure that best practices are ensured are inevitable for a virile development of traditional medicine practices. the government should ensure that researches into traditional medicine and its practices are more funded and advanced. 67 ibid. 68 e j ozioma and a n c okaka, ‘herbal medicines in african traditional medicine’ in p f builders (ed.), herbal medicine (intech open limited 2019). 69 ibid. african customary and religious law review (acarelar) 5 (2024) 133 | p a g e a review of the existing knowledge on adverse possession of registered land* abstract this study critically examines some of the existing literature on the doctrine of adverse possession in the context of registered land, exploring its rationale, critiques, and implications under the lands united kingdom’s lands registration act 2002 (lra 2002) and lagos state lands registration law 2015 (lrl 2015). it highlights the dichotomy between the perception of squatters as trespassers and the legal framework that allows them to acquire ownership through prolonged occupation. judicial opinions, including those of lord denning and neuberger j., emphasize the inherent conflict between adverse possession and the principle of indefeasibility of title central to modern land registration systems. the lra 2002 in england is analyzed as a significant reform, offering a model for balancing the rights of registered proprietors and adverse possessors. comparisons are drawn with lrl, which retain outdated provisions that undermine legal certainty and equity. the article critiques justifications for adverse possession, such as preventing stale claims and encouraging land use, arguing that these rationales are less applicable in systems where registration provides conclusive proof of ownership. it concludes by advocating for reforms that align adverse possession laws with the principles of fairness, transparency, and the integrity of registered land systems. keywords: adverse possession, registered land, land registration act 2002, indefeasibility of title, lagos state lands registration law 2015 1. introduction the doctrine of adverse possession occupies a paradoxical space in property law, where it simultaneously disrupts and upholds the integrity of land ownership. at its core, adverse possession allows a person who occupies land without the owner’s consent to acquire legal title after a prescribed period, provided certain conditions are met. this seemingly anachronistic principle, rooted in the maxim vigilantibus non dormientibus jura subveniunt—the law aids the vigilant, not the indolent—has been a subject of enduring controversy. while it ostensibly rewards industrious use of land and prevents the perpetuation of stale claims, it also poses a direct challenge to the sanctity of registered titles, particularly in systems premised on the indefeasibility of title. in jurisdictions with advanced land registration systems, such as england, the tension between adverse possession and the principle of indefeasibility has prompted significant reforms. the land registration act 2002 stands as a landmark in addressing this tension, introducing mechanisms that protect registered proprietors while acknowledging the need to resolve conflicts over long-term occupation.1 lra 2002 significantly reformed adverse possession laws for registered land, aligning with the principle of title indefeasibility. the reforms prioritize protecting registered proprietors' rights while introducing safeguards for adverse possessors. key features include a notification and consent mechanism, where adverse possessors must apply to the land registry after 10 years, notifying the registered proprietor and allowing them to object within two years. adverse possessors are no longer automatically registered as proprietors after the limitation period expires. exceptions permit adverse possession in limited cases, such as boundary disputes or unconscionable denial of claims. the lra 2002 also modified the limitation act 1980, superseding its limitation period rules for registered land and subjecting adverse possession claims to stricter requirements. additionally, the act introduced a new regime for adverse possession, reducing the limitation period from 12 to 10 years. ultimately, these reforms ensure greater protection for registered landowners against unnotified claims, striking a balance between the rights of landowners and the interests of adverse possessors.2 conversely, lrl 20153 retains traditional adverse possession rules in such a way that it will automatically override and terminate the interest of the registered land owners upon making application to the court where the land has been adversely possessed by the adverse possessor without more for a period of twelve (12) years. this more or less conflicts with modern land registration principles, leading to legal uncertainty and inequities. this study undertakes a critical examination of adverse possession in the context of registered land, juxtaposing its application under lra 2002 and lrl 2015. it interrogates the justifications for the doctrine, its evolution through judicial interpretations, and its impact on registered land systems. by drawing on key case law, academic discourse, and statutory analysis, the article explores whether adverse possession remains a necessary tool for balancing competing interests in property law or an outdated relic in need of reform. it concludes by advocating for a recalibration of adverse possession laws to ensure they align with the overarching principles of fairness, legal certainty, and the integrity of land registration systems. *by idris odekunle, phd (lagos), llm (london), llm (oau), llb (lagos), bl, aciarb (uk), fcti, anim, acis, lecturer, department of private and property law, faculty of law, university of lagos, akoka, lagos, nigeria. email: aodekunle@unila.edu.ng, feyintoluodekunle@yahoo.com, tel: 09027861671, 08110434750 1 schedule 6 lra 2002 2 ibid 3 sections 66(f), 100, 112 of the lrl 2025 mailto:feyintoluodekunle@yahoo.com odekunle: a review of the existing knowledge on adverse possession of registered land 134 | p a g e 2. review of the existing knowledge the debate surrounding the rationale for adverse possession of registered land is both contentious and intellectually significant, especially in light of recent legal developments in this area across various jurisdictions. the characterization of squatting as a form of land theft, juxtaposed with the notion of the first in possession, represents a dichotomy frequently discussed by both judicial authorities and legal scholars.4 squatters are often portrayed as outsiders infringing upon protected spaces5—invaders6 described by lord denning7 as ‘itinerants, drifters, and the antitheses of a stable, homogenous, identifiable community.’ lord denning further expounded that squatters are culpable of both a criminal offence,8 as captured under the forcible entry act of 1381,9 and a civil wrong, being trespassers from the moment of entry and throughout their occupation. this perception underpins much of the discourse on adverse possession, with the law paradoxically requiring that ‘a successful adverse possession claimant must have committed the tort of trespass over the true owner’s land.’10 denning’s views are echoed in subsequent judicial commentary. for instance, in buckinghamshire county council v moran,11 nourse lj defined adverse possession as ‘possession of wrong,’12 a perspective endorsed by the law commission in its 1998 consultative document,13 which described adverse possession as ‘tantamount to sanctioning a theft of land.’14 neuberger j., in pye v graham,15 offered particularly incisive criticisms. he argued that merely because an owner had no immediate plans for their land and allowed another to trespass temporarily, it did not justify the trespasser acquiring ownership for nothing.16 he deemed the doctrine ‘incompatible with justice’ and unsupported by practical considerations. neuberger emphasized that the traditional justification of adverse possession—avoiding uncertainty in land ownership—was largely obsolete in the context of registered land, where ownership could easily be ascertained from the land register.17 he considered the notion that an owner ‘slept on his rights’ illogical, as the existence of the 12-year limitation period was the very reason for such a characterization. without this limitation, the owner could reclaim possession at will. neuberger’s critique hints at the implied license doctrine, introduced by lord denning in wallis cayton bay holiday camp ltd v shell-mex and bp ltd,18 where occupation by a squatter was seen as implicitly consented to by the owner. although this doctrine has faced attempts at eradication, it remains a recurring consideration in adverse possession discussions. lord bingham, in his concurring judgment, highlighted the inapplicability of adverse possession in the context of registered land, where the lra 2002 addresses the risk of title loss through inadvertence. he argued that requiring compensation for the dispossessed owner would be more equitable, as registration removes the uncertainties that previously justified the doctrine. dockray19 identified three traditional justifications for adverse possession: (1) protection from stale claims: long-term possessors are shielded from the evidentiary difficulties associated with litigating ancient disputes, thereby reducing litigation risks. (2) encouraging vigilance by owners: owners are incentivized to actively manage their property, with the law implicitly punishing neglect. (3) securing possessors’ confidence: adverse possession prevents hardship and ensures land remains marketable by denying owners the ability to reclaim land after extended periods. dockray also recognized that adverse possession remedies defects in formalities of ownership transfer, particularly when land registration formalities have not been fulfilled. however, he critiqued the law’s apparent disregard for the moral culpability of trespassers, questioning why the law should protect wrongdoers, sometimes equating their actions to theft. the law commission contended that these justifications lose relevance for registered land,20 as the land register provides conclusive proof of ownership. it argued that possession forms the basis of title for unregistered land, whereas in registered land, title 4 according to lord denning in ’mcphail v persons unknown [1975] ch 447, 456b, a squatter ‘is one who, without colour of right, enters an unoccupied house or land, intending to stay there as long as he can. 5 d.r. klick, ‘this other eden: lord denning’s pastoral vision’ (1994) 14 oxford j legal studies, 46. 6 lamb v camden borough council [1981] qb 625, 633c 7 lawshelf educational media ‘acquisition by adverse possession’ available at https://lawshelf.com (accessed 28 december 2024). see section 9 of the limitation law of lagos state, 2003 8 mcphail v persons unknown [1975] ch 447, 456f. 9 5 ric 2 st 1 c 7. 10 a. goymour, ‘squatters and the criminal law: can two wrongs make a right?’ (2004) clj, 484. 11 11[1990] ch 623. 12 supra note 7 13 law commission for england and wales, land registration for the twenty first century: a consultative document (law commission no. 254, 1998). 14 ibid at 10.5 15 [2000] 3 wlr 242. 16 supra note 7 at 710 17 pye v graham supra note 15 18 [1975] qb 94. 19 m. dockray, ‘why do we need adverse possession?’(1985) conveyancer 272. 20 land registration for the twenty-first century: a conveyancing revolution – number 271 (july 2001) paras 2.70, 14.3, 14.54; land registration for the twenty-first century: a consultative document – number 254 (september 1998) paras 10.910.10. african customary and religious law review (acarelar) 5 (2024) 135 | p a g e is conferred through the register. consequently, the lra 2002 rendered registered land virtually ‘squatter-proof,’ requiring squatters to apply to the registrar, with the registered owner having the right to object and evict them. despite dockray’s skepticism, english law continues to justify adverse possession as promoting legal certainty and reducing unnecessary litigation. however, these rationales seem most compelling for unregistered land. in the context of registered land, as neuberger j. observed, ‘it becomes hard to see what principle of justice entitles the [adverse possessor] to acquire the land.’21 omotola22 raises the question of whether an adverse possessor under the limitation law obtains a fee simple estate at the end of the statutory period. he explains that the aim of the registration of titles act is the regularisation of land titles to reduce fraudulent dealings. the act addresses two key questions: who is entitled to deal with a piece of land, and which title should be registered. he notes that the act prioritises persons with the power of sale and, when referring to ‘any other person entitled at law or in equity to an estate in fee simple,’ it means only those with a valid claim to the fee simple. omotola23 argues that after the statutory period lapses under the decree, the adverse possessor becomes the sole individual capable of dealing with the land. he concludes that, as the original owner’s title is barred by law, the adverse possessor should have the right to register he title under the registration of titles act, having acquired an absolute right once time runs in their favour. however, omotola overlooks the fact that adverse possession conflicts with the fundamental concept of indefeasibility of title—a cornerstone of registered land law. adverse possession, when applied to registered land, should no longer extinguish ownership because the justifications for the doctrine in unregistered land do not entirely translate to registered land. indeed, the perception of unqualified adverse possession in registered land appears to some as an endorsement of ‘land theft.’ martin dixon24 examines how adverse possession initially operated uniformly across registered and unregistered land. the introduction of the lra 2002 sought to address the perceived arbitrariness of acquiring title through adverse possession in registered land, aiming to align the doctrine with the principle of title by registration. dixon25 notes that under the previous regime, possession was the foundation of title for both unregistered and registered land, but he questions the rationale for applying the same rules to registered land, given the fundamentally different bases of title. he analyses the landmark judgment of nicholas strauss qc in beaulane properties ltd v palmer,26 describing it as potentially transformative for adverse possession and its intersection with human rights law. dixon highlights how the case brought into focus the potential incompatibility of the law of adverse possession, as applied before the lra 2002, with article 1 of protocol no.1 of the european convention on human rights. in beaulane, the argument was straightforward: the pre-lra 2002 law deprived property owners of their land without sufficient public interest justification and disproportionately interfered with their rights. consequently, the human rights act 1998 required the common law to be interpreted in a manner consistent with the convention wherever possible.27 strauss qc demonstrated that the limitation act 1980's departure from the leigh v jack28 line of authority resulted from historical accidents, such as the need to address uncertainties in unregistered titles and the rise of title registration, rather than deliberate policy choices. while parliament’s intention as expressed in the limitation act 1980 should be respected, dixon suggests that the public interest in secure titles must also consider economic and social factors, such as encouraging landowners to use or forfeit underutilised land. dixon further observes that the pye v united kingdom 29judgment limits beaulane’s significance, as it applies only to the law before the lra 2002. under the lra 2002, the process of acquiring title through adverse possession has been fundamentally altered to ensure compliance with human rights standards. the new process prevents the automatic loss of title unless the paper owner is unfairly negligent or inattentive. however, dixon questions whether this change suffices to make the lra 2002 fully compliant with article 1 of protocol no.1. if, as beaulane implies, registered title eliminates the public interest justification for deprivation of title based on limitation, why should it matter if the paper owner fails to respond to a land registry notice? the applicant’s claim to title relies on the owner's inaction rather than uncertainty of ownership. dixon argues that this manufactured uncertainty undermines the public interest rationale for awarding title to an adverse possessor.30 21 supra note 19 22 j.a. omotola, j.a., the place of possession in the acquisition of title to land (the conveyancer, vol. 37, 239-258 23 ibid 24 m.j. dixon, ‘land registration, adverse possession and the nature of a registered title’ (2020) 79 cambridge law journal, 415. 25 m.j. dixon, ‘the reform of property law and the land registration act 2002: a risk assessment’ (2003) conveyancer, 136 26 [2005] ewhc 817 (ch) 27 m.j. dixon, ‘adverse possession and human rights in registered land’ (2005) conveyancer 345. 28 [1879] 5 ex d 264. 29 [2005] echr 921. 30 supra note 27 odekunle: a review of the existing knowledge on adverse possession of registered land 136 | p a g e pawlowski and brown,31 in their insightful analysis, highlight the legal distinctions and practical implications of adverse possession under the limitation act and lra 2002. they begin by underscoring the trite principle that unregistered land subjected to adverse possession for 12 years leads to the automatic barring of the paper owner’s title.32 in contrast, registered land operates differently: an adverse possessor must apply for registration as proprietor after ten years of possession, with no automatic barring of the paper owner’s title.33 this distinction, they argue, raises critical challenges for adverse possessors, especially given the limited grounds on which such applications may succeed under the lra 2002. the authors contend that the procedural hurdles and risks of opposition by registered proprietors discourage adverse possessors from applying for registration. for instance, while an abandoned piece of land might present lower risks of objection, contested cases involving occupied properties significantly deter applications. this reluctance, they suggest, is amplified by the principle of the relativity of title, which holds that possession confers better rights against the world save for those with superior legal claims. in registered land, however, this principle becomes less relevant as successive possessors cannot aggregate their periods of possession to meet the ten-year threshold required for registration under the lra 2002. pawlowski and brown critically examine the three exceptional grounds under schedule 6 of the lra 2002, focusing particularly on the equitable estoppel exception. they argue that this ground is inherently limited, as possessors occupying land under circumstances giving rise to proprietary estoppel typically do so with the paper owner’s consent, negating adverse possession. thus, this provision likely applies only to specific cases, such as mistaken building on disputed land or informal transactions lacking perfected title. moreover, even where proprietary estoppel is established, the land registry retains discretionary power to deny registration, further complicating the process for claimants. the authors argue that while the lra 2002 ostensibly allows squatters to apply for registration after ten years of adverse possession, the practical obstacles make successful applications rare. consequently, many possessory estates persist indefinitely, creating a tension with the policy goal of limiting ‘off-the-register’ dealings with registered land. to address this, they propose a legislative amendment introducing a limitation period for squatter applications following ten years of adverse possession. failure to apply within this extended period would extinguish the squatter’s possessory estate, precluding indefinite claims and aligning with the overarching principles of the lra 2002. the proposed amendment, according to pawlowski and brown, would mirror the automatic extinguishment of the paper owner’s title in unregistered land under the limitation act. however, unlike the current law, which allows a squatter’s fee simple to ripen into ownership, a failure to apply within the specified period under the amended lra 2002 would render the squatter a mere trespasser. this would eliminate any defense against the registered proprietor’s claim and preclude reliance on the three grounds in schedule 6, thus ensuring the integrity of the register. pawlowski and brown further argue that the existence of possessory estates enduring indefinitely off the register undermines the core principle of land registration—that title is based on registration, not mere possession. they cite the law commission’s emphasis on this principle, which underpins the lra 2002. the authors propose that the limitation period for squatter applications could also commence upon written notice from the registered proprietor, ensuring fairness and prompt action. such an approach, they argue, would achieve a dual effect: compelling legitimate claims to be registered promptly while extinguishing unmeritorious claims. in conclusion, pawlowski and brown assert that their proposed amendment would enhance the integrity of the land registration system by curbing the proliferation of possessory estates existing outside the register. by aligning with the rationale of the lra 2002, this reform would reduce the ‘dark market’ of possessory estates, ensure timely conversion of valid claims into registered titles, and solidify the public’s confidence in the land registration framework. their analysis invites a reevaluation of current policies to reconcile the competing interests of possession and registration, ultimately fostering a more transparent and equitable system of land ownership.34 park35 observes that virtually all legal systems recognize adverse possession as a mechanism for acquiring interests in land, with such interests often arising and continuing without formal recordation. this unrecorded status, park argues, contravenes the foundational principles of registered title systems, which emphasize certainty and transparency park elaborates that the essence of title registration lies in the precise recording and continual updating of details about individual parcels, ensuring that boundaries and ownership are accurately reflected. he invokes ruoff's36 ‘mirror’ and ‘curtain’ principles, which collectively aim to provide an unassailable record of title that obviates the need to examine prior transactions. yet, park contends, adverse possession disrupts these principles by creating a situation where the dispossessed titleholder remains recorded as the proprietor, 31 m. pawlowski and j. brown, ‘adverse possession and the transmissibility of possessory rights: the dark side of land registration?’ (2017) conveyancers journal 116 32 see english limitation act 1980, s. 15 33 see lra 2002, s.96. 34 see m. pawlowski, ‘criminal squatting and adverse possession: a case of interpretative logic’ (2015). 24 nott. l.j, 129. 35 m.m. park, the effect of adverse possession on part of a registered title land parcel. 29 (barbara bogusz, roger sexton, 2003) 36 t.b. ruoff and r.b. roper, on the law and practice of registered conveyancing. 4th ed. (sweet & maxwell: london, 1979) african customary and religious law review (acarelar) 5 (2024) 137 | p a g e undermining the mirror principle and fostering conflicts between recorded and unrecorded rights. griggs37 extends the analysis by situating adverse possession within the framework of the torrens system of title registration in australia. he critiques the doctrine as antiquated, arguing that its justification diminishes under modern registration systems that prioritize indefeasibility of title. griggs highlights the adverse implications of adverse possession, including its potential to undermine the functional utility of registration systems and the economic markets that rely on them. analyzing pye v graham, he characterizes adverse possession as a violation of registered owners’ rights, fostering squatting and eroding confidence in the legal formalism of registration. however, griggs's critique of the grand chamber of the european court of human rights in pye has been contested. critics argue that the equitable framework provided under english law, including the limitation act of 1980, aligns with human rights standards by balancing the interests of registered proprietors and adverse possessors. restrictive judicial interpretation, guided by restitution principles, is advocated as a means to protect registered owners and uphold the integrity of registration systems. smith38 examines the nigerian context, focusing on the lrl 2015. he critiques the law's provisions for registering adverse possession, highlighting the challenges they pose to the indefeasibility of registered title and the broader principles of fairness and constitutional property rights. smith notes that the lrl provisions enable squatters to acquire title through adverse possession39 in a manner that jeopardizes the interests of third parties, such as mortgagees, and undermines the objectives of modern registration systems. he proposes excluding adverse possessors from registration or instituting a rigorous regime to make it exceedingly difficult for squatters to acquire title against the wishes of registered proprietors. drawing comparisons with the qualified veto rule under the lra 2002 in england, smith suggests adopting similar safeguards in lagos state to protect legitimate titleholders. ojo40 contributes to the discourse by emphasizing the transformative impact of the lra 2002 on the doctrine of adverse possession in england and wales. he highlights that the act shifts the burden to the squatter, ensuring that the mere passage of time cannot bar the rights of registered proprietors. ojo strongly advocates for the abolition of adverse possession in nigeria, describing the doctrine as outdated and morally indefensible. if retained, he recommends adopting the english model, which incorporates robust checks and balances to safeguard the interests of registered proprietors. a review of the literature reveals a consistent focus on the principle of legal certainty as the cornerstone of land registration systems across jurisdictions. while the rationale for adverse possession has evolved, its application remains contentious. in england, the enactment of the lra 2002 represents a paradigm shift, demonstrating how modern legal frameworks can reconcile the doctrine with the imperatives of registration. by contrast, lrl grapples with outdated frameworks that fail to align with contemporary expectations of fairness, transparency, and property rights protection. the prevailing consensus among scholars underscores the need for legislative reform to address the tensions inherent in the coexistence of adverse possession and title registration. dockray41 critiques the limitation act for its failure to provide a comprehensive rationale for its policies, arguing that it only incentivizes landowners to protect their interests if they are aware, or should reasonably be aware, that time is running against them. however, he notes that neither actual nor constructive knowledge of the accrual of a cause of action is required for the statute's operation. doctray42 and omotola43 provide contrasting justifications for adverse possession in the context of registered land. doctray defends the doctrine as a mechanism to protect long-term possessors from stale claims, promote the quieting of title, discourage landowners from neglecting their rights, and ensure that possessors can rely on their claims after a statutory period has elapsed. omotola, meanwhile, ties the doctrine to the aims of the registration of titles act, which seeks to regularize land titles and reduce fraudulent dealings. he argues that once the title of the original owner has been barred by the limitation law, there is no basis for denying the adverse possessor the right to register under the registration of titles act. both scholars anchor their arguments on principles of equity and fair play, asserting that legal rights are not perpetual but must be exercised within statutory limits. however, doctray’s justification overlooks the transformative role of title registration in providing certainty and conclusiveness of ownership. for registered land, the act of registration itself removes ambiguity and serves as definitive proof of ownership, unlike unregistered land, where possession forms the basis of title. omotola’s stance similarly fails to reconcile the doctrine of adverse possession with the principle of indefeasibility of title, a cornerstone of registered land systems. allowing adverse possession to override registered title fundamentally undermines the philosophy of land registration by introducing uncertainty into a system designed to eliminate it. 37 l. griggs, ‘possession, indefeasibility and human rights’ (2008) qut law review, 2201. 38 i. o. smith, essays on the lagos state lands registration law 2015, (department of private & property law, faculty of law, university of lagos, 2017) 39 see the combined effect of sections 66(f), 100 and 112 of lrl 2015 40 g. ojo, ‘acquisition of title to land by adverse possession: need to stop endorsement of land theft’ (2016) the gravitas review of business & property law, 1. 41 supra note 16 42 ibid 43 supra note 19 odekunle: a review of the existing knowledge on adverse possession of registered land 138 | p a g e dixon,44 pawlowski and brown,45 park,46 griggs,47 smith,48 and ojo 49critique adverse possession in registered land systems on various grounds. they argue that the doctrine contradicts the concept of indefeasibility of title, perpetuates unfairness, and effectively legalizes land theft. the notion that title is relative rather than absolute has particularly troubling implications in cases involving successive adverse possessors, where each squatter’s claim rests on their occupation of the land. for registered land, such scenarios are even more problematic because the transfer of a possessory estate between successive squatters cannot be registered. smith50 highlights the injustices inherent in the lrl 2015 provisions on adverse possession in lagos state, proposing that the law should either exclude adverse possessors’ claims from registration—making them susceptible to eviction—or adopt provisions akin to the lra 2002, which impose stringent requirements on the registration of adverse possession claims. such measures would better protect registered owners and uphold the integrity of the registration system. the academic consensus overwhelmingly condemns the doctrine of adverse possession in registered land systems, identifying it as morally and legally problematic. by unjustly enriching adverse possessors at the expense of registered owners, the doctrine undermines the principles of fairness and equity that underpin land registration systems. 3. case law overview english case law perspective the inconsistency test, as articulated in the case of leigh v jack51, establishes that acts by an adverse possessor must be inconsistent with the title owner’s enjoyment of the land for its intended purposes. in this case, the plaintiff’s predecessor had designated parts of his estate as proposed streets, namely grundy street and napier place. the intention to use these adjoining lands as streets was evident to all parties involved. during the limitation period, the defendant had encroached upon these areas, placing old graving dock materials and other refuse on them, and eventually enclosing the land. despite these actions, the defendant did not acquire title under the limitation act 1833. this ruling introduced complexities into subsequent interpretations of adverse possession, as it failed to provide clear boundaries for assessing inconsistency in possession claims. the case of pye v graham52 further highlighted the challenges of interpreting adverse possession. the grahams, under a grazing agreement with mr. pye, continued to occupy 23 hectares of land valued at £10 million after the agreement expired. when pye failed to take possession, the grahams sought ownership through adverse possession. neuberger j, at the high court, ruled in their favor under the land registration act 1925. however, the court of appeal overturned this decision, reasoning that the grahams’ occupation was linked to the grazing agreement. ultimately, the house of lords unanimously reinstated the high court’s ruling, underscoring the principle that non-action by the registered owner could enable an adverse possessor’s claim. this case signaled the inherent tension between adverse possession and the principles of land registration, particularly regarding registered land. in beaulane properties ltd v palmer,53 nicholas strauss qc sought to address this tension by reviving the rule in leigh v jack. he concluded that the pre-2002 regime for registered land contravened the true owner’s rights under the european convention on human rights (echr). invoking section 3 of the human rights act 1998, strauss qc applied the leigh v jack principle to protect the owner’s title from being overridden by adverse possession, marking a judicial shift toward aligning property law with human rights obligations. the law commission of england and wales, in its 1998 consultative document,54 characterized adverse possessors as ‘land thieves’ whose actions undermined the security of registered titles. this critique informed the enactment of the lra 2002, which sought to safeguard registered proprietors by restricting adverse possession to situations justified by fairness or marketability of land. however, lrl 2015, despite drawing inspiration from the lra 2002, failed to replicate its safeguards, allowing adverse possession to override registered titles—a significant legislative inconsistency. the case of paine v sexton55 further elucidated the requirements for adverse possession, emphasizing a ‘totality of circumstances’ approach. the plaintiffs, who operated a campground on disputed land for over 20 years, successfully demonstrated their open, notorious, and exclusive use of the property. 44 supra notes 24, 25, 27 45 supra note 31 46 supra note 36 47 supra note 38 48 supra note 39 49 supra note 41 50 supra note 39 51 [1879] 5 ex d 264, 52 [2002] ukhl 30 53 [2006] ch 79 54 land registration for the twenty-first century: a consultative document, law com no 254 55 20 lcr 292 african customary and religious law review (acarelar) 5 (2024) 139 | p a g e the court’s reliance on precedents like kendall v selvaggio56 and sea pines condominium ii v steffens57 underscored the weight given to visible acts of occupation. however, the decision prioritized the adverse possessor’s interest over the registered owner’s rights, perpetuating the conflict between adverse possession and the principle of indefeasibility inherent in land registration systems. this judicial approach disregards the foundational rationale of land registration, which is to eliminate uncertainty and provide conclusive proof of ownership. by privileging adverse possessors, courts undermine the registered owner’s security of title. nigerian case law perspective the nigerian judiciary has consistently held that adverse possession cannot override registered title. in atunrase v sunmola,58 mogaji v cadbury,59 and ngene v igbo60 courts affirmed that adverse possession is incompatible with land registration principles. similarly, in bello v birma61 the court of appeal unequivocally stated that ‘adverse possession, however long, does not confer title against the rightful holder.’ post-lrl 2015, courts have maintained this stance. in jauro v danmaraya 62the court reiterated that long-term adverse possession cannot mature into ownership. likewise, in akanbi v a.g. federation,63 the court held that adverse possession does not confer title by prescription. these rulings reveal a judicial consensus rejecting adverse possession’s applicability to registered land, yet statutory inconsistencies persist, leaving registered owners vulnerable. 4. statutory inconsistencies the lrl 2015’s provisions on adverse possession conflict with lagos state statutes, such as land use act 197864, the lagos state criminal code 201165, and the property protection law of lagos state 2016,66 which criminalize adverse possession. this raises a critical question: if adverse possession is illegal under these statutes, can it confer ownership? the answer, clearly, is negative. adverse possession, once a vital mechanism in land law, now faces challenges in adapting to modern land registration systems. traditionally justified by the need to quiet titles and encourage diligent land use, the doctrine appears increasingly outdated within regimes that prioritize the principle of indefeasibility of title. the reforms introduced by the lra 2002 in england and wales highlight a more balanced approach, incorporating procedural safeguards that protect the interests of registered proprietors while addressing long-term possession claims. in contrast, retention of adverse possession, particularly in the face of legislative inconsistencies such as the lrl 2015, undermines the reliability of its registration system. while the judiciary has consistently upheld the primacy of registered titles, as seen in landmark cases like atunrase v sunmola and jauro v danmaraya, the absence of coherent statutory reforms perpetuates insecurity and inequity. 5. conclusion the gap between nigerian case law and the statutory framework highlights the inadequacies of lagos state’s legislative protections for registered title owners. to secure land ownership and uphold the principles of equity and fairness, legislative reform is imperative. adverse possession must be reconciled with the core tenets of land registration to ensure the integrity of property rights in lagos state. a shift in approach is necessary for lagos state to align its land laws with global best practices. legislative reforms should aim to abolish or limit adverse possession in registered land systems, incorporating safeguards similar to those in the lra 2002. the evolving jurisprudence and legislative reforms surrounding adverse possession reflect a growing recognition of its incompatibility with registered land systems. while the lra 2002 has mitigated some of the doctrine’s shortcomings, further refinements are necessary to align adverse possession with principles of fairness and human rights. in jurisdictions like lagos state, adopting safeguards akin to those under the lra 2002 would enhance the integrity of land registration systems and protect legitimate titleholders. ultimately, the future of adverse possession lies in striking a balance between practical considerations and the imperatives of legal certainty and transparency. by reconciling these competing interests, policymakers can foster a more equitable and efficient framework for land ownership. 56 413 mass. 619 (1992) 602 n.e.2d 206 57 61 mass. app. ct. 838 58 [1985] 1 nwlr (pt. 1) 105 59 [1985] 2 nwlr (pt. 77) 383 60 [2000] 4 nwlr (pt. 651) 133, 61 [2014] lpelr-23969, 62 [2016] lpelr-40328, 63 [2017] lpelr-43121 64 section 37, land use act 1978 65 section 280 of the lagos state criminal code 2011 66 section 4 of the property protection law of lagos state 2016 african customary and religious law review (acarelar) 5 (2024) 19 | p a g e role of a legal adviser to a political party in mediation and settlement of inter-party disputes in nigeria* abstract mediation offers a valuable mechanism for resolving pre-election disputes in nigeria. it provides a cost-effective, speedy, and relationship-preserving alternative to litigation. despite challenges such as acceptance, neutrality, and enforceability, with increased awareness, legal reforms, and institutional support, mediation can play a significant role in maintaining the integrity and smooth functioning of nigeria's electoral process. political parties in nigeria being essential vehicles for political representation are bound by law to function democratically and adhere to regulatory frameworks. a legal adviser to a political party plays a significant role and serves as the custodian of the party's legal framework, ensuring that its activities comply with the law to prevent disputes and electoral sanctions. in this article, we started with conceptual clarifications and went further to examine the role of a legal adviser to a political party in mediation and settlement of inter – party disputes. this research work will go a long way in provoking further discussions on the topic and it will help in strengthening nigeria’s democratic institution. keywords: legal adviser, political party, mediation, settlement, inter-party, disputes 1. introduction in disputes between different political parties, adr methods can serve as effective tools for resolving conflicts over electoral boundaries, campaign activities, or voter intimidation. by engaging in mediation, parties can avoid drawn-out legal battles and maintain focus on their electoral goals. the legal adviser’s role in this context is to negotiate settlements that protect the party's interests while ensuring legal compliance. the constitution1 provides the framework for political parties, including the need to adhere to democratic principles in party formation and conduct. the legal adviser helps to ensure that the party's actions are in line with constitutional provisions. the writer examined in details the role of a legal adviser to a political party as it pertains to mediation and settlement of inter – party disputes in nigeria. the understanding of the role of legal adviser in this regard will go a long way in reducing the number of inter – party disputes that go to courts in nigeria. it will help to decongest our courts. this will go a long way in strengthening the democratic institution in nigeria. 2. clarification of concepts alternative dispute resolution alternative dispute resolution (adr) refers to a range of processes that provide parties with alternatives to litigation for resolving disputes. the primary methods of adr include arbitration, mediation, conciliation, and negotiation. adr is significant due to its ability to offer more flexible, cost-effective, and time-efficient resolution methods compared to traditional court proceedings. it often preserves relationships by promoting collaborative problem-solving and can provide more creative and tailored solutions that a court may not be able to offer. the evolution of adr in nigeria can be traced back to traditional methods of conflict resolution that predate colonial rule. indigenous systems such as family meetings, council of elders, and community heads played significant roles in resolving disputes within their communities. during the colonial era, the introduction of british legal systems overshadowed these indigenous methods. however, the limitations of the formal judicial system, including its inaccessibility, costliness, and delays, led to a resurgence of interest in adr. in contemporary nigeria, adr has gained formal recognition and acceptance, supported by various statutes and case laws. the mediation and arbitration act,2 is a key statute that governs arbitration and mediation in nigeria. this act is influenced by the united nations commission on international trade law (uncitral) model law on international commercial arbitration, reflecting nigeria's alignment with international standards. mediation mediation is a voluntary process where a neutral third party, the mediator, helps disputing parties to reach a mutually acceptable agreement. unlike arbitration, the mediator does not impose a decision. mediation is less formal and allows for more creative solutions that cater to the interests of both parties. in agro-allied development enterprises ltd. v united bank for africa plc,3 the court of appeal highlighted the effectiveness of mediation and encouraged parties to utilize it before resorting to litigation. in acn v pdp,4 the action congress of nigeria (acn) and the people’s democratic party (pdp) were embroiled in a dispute over the conduct of the gubernatorial *by c. j. ubanyionwu, phd, professor of law, department of international law and jurisprudence, faculty of law, chukwuemeka odumegwu ojukwu university, igbariam campus; chairman, nigerian bar association, aguata branch (2018 – 2020), tel: 08036660646, email: barcjuba@yahoo.com. 1constitution of the federal republic of nigeria 1999 (as amended). 2 laws of the federation of nigeria 2004 (as amended). 3 (2014) lpelr-22585(ca). 4 (2012) 9 nwlr (pt 1304) 273. ubanyionwu: role of a legal adviser to a political party in mediation and settlement of inter-party disputes in nigeria 20 | p a g e election in osun state. mediation was suggested by the court as a more efficient way to resolve the dispute between the two major parties. also, in agbakoba v inec,5 that involved a dispute between political parties over the disqualification of candidates by inec. although it was litigated, the court advised that the parties could have explored adr to resolve their differences quicker and more amicably. in inec v apc,6 a dispute arose between inec and the all progressives congress (apc) over the disqualification of candidates in zamfara state. the court advised that the dispute could have been settled through adr, demonstrating the role adr could play in avoiding electoral litigation. steps and procedural process of mediation the steps are as follows: initiation: the mediation process begins when parties agree to mediate and select a mediator. this can be initiated by the parties themselves or suggested by a court or electoral body. selection of mediator: parties select a neutral mediator with expertise in electoral matters. pre-mediation meetings: the mediator meets with each party separately to understand their perspectives and interests. joint mediation sessions: the mediator facilitates joint sessions where parties discuss their issues, explore options, and negotiate solutions. agreement: if parties reach an agreement, the mediator helps them draft a settlement agreement, which can be binding. implementation: parties implement the terms of the settlement agreement. if necessary, the agreement can be formalized through a consent order from a court.7 advantages of mediation mediation generally incurs lower costs compared to litigation, making it an accessible option for resolving disputes. mediation can be completed in a shorter timeframe than court proceedings, which is critical during the pre-election period when timely resolutions are needed. mediation fosters a collaborative environment where parties can communicate openly, helping to maintain and even improve relationships, which is particularly important in the politically charged context of elections. challenges there may be resistance to mediation from parties who are unfamiliar with the process or prefer the adversarial nature of litigation. ensuring the neutrality of mediators is critical, especially in politically sensitive disputes where bias can undermine the process. while mediation agreements are usually respected by the parties, enforcing these agreements can sometimes be challenging without formal judicial endorsement. comparative analysis of mediation and other adr methods mediation vs. arbitration: while both mediation and arbitration are forms of adr, mediation is a non-binding process focused on facilitating mutual agreement, whereas arbitration results in a binding decision imposed by the arbitrator. mediation vs. conciliation: conciliation is similar to mediation, but the conciliator often plays a more active role in proposing solutions. mediation focuses more on facilitating communication and negotiation between the parties. mediation vs. negotiation: negotiation involves direct discussions between parties without the involvement of a third party. mediation, on the other hand, involves a neutral mediator who helps facilitate the process.8 legal adviser to a political party in nigeria a legal adviser to a political party in nigeria is a key official who provides legal counsel and support to ensure that the party operates within the bounds of the law. their primary responsibility is to advise the party on legal matters, including matters pertaining to mediation and settlement of inter – party disputes. this role extends to representing the party in court, and handling issues related to party registration, electoral disputes, candidate eligibility, and internal party democracy. the legal adviser is often part of the party’s national working committee (nwc) and plays a crucial role in maintaining the legal framework for the party’s activities, ensuring that the political party adheres to regulations imposed by the independent national electoral commission (inec). the constitution9 provides the framework for political parties, including the need to adhere to democratic principles in party formation and conduct. the legal adviser helps to ensure that the party's actions are in line with 5 (2008) 18 nwlr (pt 1119) 489. 6 (2020) 13 nwlr (pt 1743) 69. 7 see mediation handbook for nigeria by the institute of chartered mediators and conciliators (icmc). 8 a yusuf, ‘alternative dispute resolution in nigeria’ available on nigerian law review. 9constitution of the federal republic of nigeria 1999 (as amended). https://www.nigerianlawreview.org/ african customary and religious law review (acarelar) 5 (2024) 21 | p a g e constitutional provisions. the legal adviser plays a crucial role in guiding the party to comply with the sections of the electoral act to avoid disqualification of candidates. in pdp v inec,10 the peoples democratic party (pdp) had internal disputes over the nomination process for its candidates. inec refused to recognize candidates nominated through a process that it deemed non-compliant with the electoral act. the court held that inec’s decision was lawful as the party had failed to comply with the relevant provisions of the electoral act. the legal adviser’s role includes ensuring the party’s internal processes comply with legal standards to prevent such disputes. also in labour party v inec & anor,11 the labour party faced issues when its legal adviser failed to ensure proper documentation during the party’s primaries. inec disqualified their candidates based on improper documentation. the court affirmed inec’s decision, highlighting the importance of proper legal guidance in candidate nomination. this case demonstrates the significant role of the legal adviser in overseeing party documentation and legal compliance. equally, in onuoha v okafor & anor,12 which involved the internal party democracy of the nigerian peoples party (npp), where a candidate challenged the party’s nomination process. the supreme court stressed that political parties must operate within the bounds of their own constitution and the law. any deviation could lead to legal challenges. a legal adviser ensures that party constitutions are strictly adhered to, preventing internal disputes from escalating into court cases. also, in ugwu v ararume,13 the pdp replaced its candidate after the primary elections, leading to a lawsuit. the candidate challenged the legality of the substitution under the party's guidelines and the electoral act. the court ruled in favour of the candidate, emphasizing the role of legal compliance in party processes. the legal adviser should provide legal guidance during candidate substitution to ensure it complies with the party’s constitution and the electoral act. political party in nigeria a political party in nigeria is an organized group of individuals with shared political ideologies, seeking to influence government policy by nominating candidates for public office, winning elections, and controlling governmental powers. under the nigerian law, political parties are regulated entities, recognized by the independent national electoral commission (inec), and are expected to function democratically and in compliance with the constitution, the electoral act, and other legal frameworks. political parties in nigeria play a critical role in democracy by aggregating the interests of citizens, providing a platform for political participation, formulating policies, and fielding candidates for elections. their activities, internal governance, and financial dealings are regulated by inec to ensure fairness and transparency. section 22114 provides that only a political party can sponsor candidates for elections. this section underscores the exclusive role of political parties in the electoral process. section 22215 outlines the requirements for the registration of political parties, such as having a constitution, registered office, and being accessible to the public. section 8416 governs the conduct of primary elections and nomination of candidates by political parties. it mandates democratic procedures and compliance with the law to ensure transparency in the selection process while section 22517 provides for the regulation of political parties by inec, including financial transparency and submission of reports on their activities. in inec v musa,18 several political associations challenged inec's refusal to register them as political parties, arguing that inec's criteria for registration were unconstitutional. the supreme court held that inec’s powers were limited to ensuring that parties met the constitutional requirements and could not impose additional conditions. the court emphasized the role of political parties as fundamental to democracy. this case demonstrates the foundational principle that political parties must be allowed to function freely, provided they comply with the constitutional framework. also in pdp v inec,19 the peoples democratic party (pdp) challenged inec's decision to recognize candidates nominated through a faction of the party, arguing that the recognized faction was not the legitimate party leadership. the court upheld inec’s decision, emphasizing that political parties must follow their own internal constitutions and procedures in conducting party activities. this case highlights the importance of internal party democracy and legal compliance principles that political parties must adhere to in nigeria. equally in apc v marafa,20 the all progressives congress (apc) was barred from fielding candidates in zamfara state for failing to conduct its primaries in accordance with the electoral act. the supreme court held that apc's failure to comply with statutory provisions rendered their candidates’ nomination invalid. this case further stressed the need for political parties to follow legal and procedural requirements. this case reinforces the requirement that political parties must adhere to democratic procedures in their internal governance, especially in the selection of candidates. 10 (2014) 17 nwlr (pt. 1437) 525 11 (2022) lpelr-56945(sc). 12 (1983) 2 scnlr 244. 13 (2007) 12 nwlr (pt. 1048) 367. 14constitution of the federal republic of nigeria 1999 (as amended). 15 ibid. 16 electoral act 2022. 17 constitution of the federal republic of nigeria 1999 (as amended). 18 (2003) 3 nwlr (pt. 806) 72. 19 (2014) 17 nwlr (pt. 1437) 525. 20 (2020) lpelr-49677(sc). ubanyionwu: role of a legal adviser to a political party in mediation and settlement of inter-party disputes in nigeria 22 | p a g e in onuoha v okafor & anor,21 a member of the nigerian peoples party (npp) challenged the party’s nomination process, alleging that it violated the party’s constitution. the court ruled that political parties must comply with their internal rules and democratic norms to ensure fairness and transparency in their operations. this case further supports the notion that political parties are bound by their own constitutions, and the judiciary has the power to review internal processes when there is a breach of fairness. 3. roles of a legal adviser to a political party in nigeria a legal adviser to a political party plays a critical role in ensuring that the party's operations comply with the legal framework, providing guidance on internal governance, electoral compliance, and dispute resolution. several theories underpin the role and responsibilities of a legal adviser in the political system, especially in nigeria, where political party activities are strictly regulated. the theories are as follows: advisory role this posits that the legal adviser serves primarily as a source of guidance and legal expertise to the party. the legal adviser’s role involves interpreting and applying the laws that affect the party's operations, advising on electoral laws, internal party rules, and constitutional provisions. the legal adviser ensures that the party operates within the boundaries and ambits of the laws, protecting the party from legal liabilities. section 4022 guarantees freedom of association, which includes political parties, and by extension, the need for legal guidance to ensure proper conduct. the electoral act 2022 provides the legal framework for the conduct of elections and political party operations, making it essential for legal advisers to ensure strict compliance. in pdp v inec,23 the pdp was involved in a dispute over its internal primary election procedures and turned to its legal adviser for guidance on complying with the law. the court ruled that internal party disputes, such as primary election processes, must adhere to democratic principles, highlighting the role of legal advisers in ensuring compliance with party rules. this case underscores the advisory role of legal advisers in political party operations. also in apc v inec,24 the apc’s failure to comply with inec’s guidelines for nominating candidates led to disqualification of the candidates, raising questions about the role of the party's legal adviser. the court upheld inec's decision, emphasizing that the party’s legal advisers should have ensured full compliance with the electoral act. this case highlights the critical advisory role of legal advisers in guiding political parties to comply with legal procedures. ensuring compliance this focuses on the legal adviser’s responsibility to ensure that the political party complies with all applicable laws, including constitutional provisions, the electoral act, and inec guidelines. the legal adviser is tasked with interpreting these laws and ensuring that the party operates within the legal limits in all its activities, including candidate’s selection, campaign financing and internal party governance. sections 82 and 8425 lay out the guidelines for candidates’ selection and party primaries, which must be adhered to by political parties. inec guidelines stipulate the rules for party registration, election monitoring, and compliance with campaign finance regulations. in inec v action congress,26 the action congress was disqualified due to non-compliance with the electoral regulations. the party’s legal adviser was criticized for failing to ensure compliance. the court upheld the disqualification, emphasizing that legal adviser must ensure full compliance with inec’s guidelines. this case demonstrates the importance of the legal adviser’s role in ensuring compliance with electoral laws. in labour party v inec & anor,27 labour party’s candidates were disqualified for failing to comply with the nomination process as required by inec. the court upheld the disqualification, stressing that the party’s legal advisers failed to ensure proper compliance with nomination rules. this case highlights the importance of the legal adviser in ensuring strict adherence to legal requirements. dispute resolution under this, the legal adviser plays a crucial role in resolving internal disputes within the political party, such as disagreements over candidate selection, breaches of party rules, and conflicts arising from party congresses. the legal adviser ensures that disputes are handled in accordance with the law and party constitutions, preventing unnecessary litigation and promoting internal cohesion. section 8528 outlines the legal framework for resolving disputes within political parties, emphasizing the role of legal advisers in mediation. most political parties have constitutions that provide dispute resolution mechanisms. in sheriff v pdp,29 a factional dispute arose within the pdp over the leadership of the party. the party’s legal advisers were involved in attempts to mediate the conflict. 21 supra. 22 constitution of the federal republic of nigeria 1999 (as amended). 23 (2014) 17 nwlr (pt. 1437) 525. 24 (2020) lpelr-49685(sc). 25 electoral act 2022. 26 (2007) 12 nwlr (pt. 1047) 220. 27 (2022) lpelr-56945(sc). 28 electoral act 2022. 29 (2017) lpelr-41805(sc). african customary and religious law review (acarelar) 5 (2024) 23 | p a g e the supreme court ruled in favor of the makarfi-led faction, emphasizing the need for political parties to resolve disputes through legal and constitutional means. the role of legal advisers in resolving internal party disputes is crucial to maintaining party unity and legality. in apga v umeh,30 a dispute arose within apga regarding leadership and primary election procedures. the court emphasized the need for political parties to follow their own constitutions and legal frameworks in resolving internal disputes and reinforces the legal adviser’s role in ensuring that disputes are resolved in accordance with the party’s constitution and applicable laws. strategic role legal advisers also play a strategic role in shaping the legal and political strategy of the political party. this theory asserts that legal advisers are involved in advising on electoral strategy, candidate eligibility, and other legal matters that could affect the party's success in elections. this includes advising on litigation, challenges to electoral outcomes, and the legal aspects of political campaigns. section 22131 restricts sponsorship of candidates to political parties, meaning that legal advisers must ensure that the party's candidates meet eligibility criteria. electoral act 2022 equally provides a legal framework for electoral litigation and dispute resolution, which legal advisers use to guide their party’s strategy. in faleke v inec,32 following the death of the apc gubernatorial candidate in kogi state, legal advisers played a key role in determining the strategy for substituting the candidate. the supreme court ruled on the succession plan, emphasizing that legal advisers must carefully navigate constitutional and electoral laws in strategizing for elections. this case illustrates the legal adviser’s role in shaping party strategy during electoral contests. in buhari v inec,33 buhari challenged the outcome of the 2007 presidential election, relying heavily on the legal strategy provided by his advisers. while the case was dismissed, it highlighted the importance of a robust legal strategy in contesting election results. the case underscores the strategic advisory role of legal counsel during electoral litigation. the above demonstrate that legal advisers play a multifaceted role in the life of a political party, ensuring compliance with laws, resolving disputes, providing strategic advice, and ensuring that the party remains within the bounds of the law during electoral processes. 4. settlement of disputes in nigeria settlement of disputes in nigeria refers to the resolution of conflicts or disagreements between parties through legal or alternative mechanisms. it encompasses formal judicial proceedings in courts or tribunals, as well as alternative dispute resolution (adr) mechanisms like negotiation, mediation, arbitration, and conciliation. the aim of dispute settlement is to provide a legally recognized solution that is fair, just, and acceptable to the disputing parties. the nigerian legal system provides multiple avenues for dispute resolution, including litigation in various courts and the adoption of adr mechanisms. the constitution of nigeria, statutory provisions, and case law provide the framework for resolving disputes, ensuring justice and fostering harmony in civil, criminal, electoral, and commercial matters. section 634 vests judicial powers in the courts for the adjudication of disputes. it provides the legal foundation for courts to resolve disputes between individuals, organizations, and government entities. the electoral act 2022 outlines the procedures for resolving electoral disputes through election tribunals and courts, including the process for adjudicating disputes arising from the conduct of elections. in araka v ejeagwu,35 the supreme court of nigeria addressed the principle of amicable settlement of disputes. the court held that while parties have the right to access courts for adjudication, they are encouraged to explore amicable settlement mechanisms like negotiation and mediation to resolve disputes without resorting to litigation. inter-party disputes in nigeria inter-party disputes in nigeria refer to disagreements or conflicts that arise between different political parties, particularly in relation to electoral processes, alliances, mergers, campaign strategies, or other aspects of political competition. these disputes can involve issues such as allegations of election rigging, unlawful conduct by political parties, non-compliance with electoral regulations, or disagreements over pre-election agreements. the resolution of such disputes often falls under the jurisdiction of election tribunals or courts, depending on the nature of the dispute. section 22136 recognizes the role of political parties in nigeria, giving them the exclusive power to sponsor candidates in elections. conflicts between parties over this power or other electoral matters are often brought before the courts. section 84(14)37 allows aspirants in party primaries to challenge the process in court, but it also highlights situations where parties might disagree or cause disputes in pre-election matters. section 8438 30(2008) 34 nscqr 351. 31 constitution of the federal republic of nigeria 1999 (as amended). 32 (2016) 18 nwlr (pt. 1543) 61. 33 (2008) 19 nwlr (pt. 1120) 246. 34 constitution of the federal republic of nigeria 1999 (as amended). 35 (2000) 12 nwlr (pt 682) 684. 36 constitution of the federal republic of nigeria 1999 (as amended). 37 electoral act 2022. 38 ibid. ubanyionwu: role of a legal adviser to a political party in mediation and settlement of inter-party disputes in nigeria 24 | p a g e governs the nomination of candidates by political parties and regulates party primaries. section 28539 provides the election petition tribunals and other courts with the jurisdiction to hear and determine matters arising from electoral disputes, including inter-party conflicts. inter-party disputes through the cases a.p.c. v peoples democratic party (pdp) & ors40 in this case, the all progressives congress (apc) challenged the victory of the peoples democratic party (pdp) in an election, citing alleged non-compliance with the electoral act. the supreme court, in dismissing the case, emphasized that political party must adhere to the rules governing elections and nominations. this case highlights the types of conflicts that arise between political parties during the electoral process. the apc brought a petition alleging that pdp's victory in a gubernatorial election was tainted with irregularities and that pdp's candidate was not properly nominated in accordance with the law. the court dismissed the case, finding that the alleged irregularities did not substantially affect the outcome of the election. all nigeria peoples party (anpp) v a.g. federation41 this case involved a dispute between anpp and the federal government regarding the conduct of general elections. the case arose from the opposition's claim that the ruling party manipulated the electoral process to its advantage, leading to an unfair election. the court examined the legality of various actions taken by the ruling party and government agencies. anpp alleged that the federal government, through its agencies, influenced the outcome of the 2003 elections by unlawfully utilizing state resources and intimidating opposition parties. the court, while not overturning the election results, ruled that the electoral process must be free and fair, and any unlawful interference could lead to legal consequences. pdp v inec & apc42 this case was centered on a pre-election dispute between pdp and apc, where pdp alleged that apc's candidate for the governorship election was not validly nominated. the court of appeal ruled in favor of the apc, highlighting the importance of compliance with party nomination processes and the courts' role in resolving such inter-party disputes. pdp argued that the apc did not conduct its primary election in accordance with the electoral act and its constitution. the pdp contended that apc's candidate was not validly nominated. the court of appeal, however, found that there was substantial compliance with the law and that the nomination process was valid. labour party v apc & ors43 in this case, the labour party challenged the results of the 2023 presidential election, alleging massive rigging and non-compliance with the electoral act by the apc. the court of appeal dismissed the labour party’s claims, stating that the allegations lacked substantial evidence to prove that the election outcome was affected by any irregularities. the labour party, along with its presidential candidate, filed a petition challenging the apc's win in the 2023 election. they alleged that the independent national electoral commission (inec) and apc engaged in electoral malpractices. the court held that the labour party failed to provide sufficient evidence to substantiate their claims of widespread irregularities. all progressive grand alliance (apga) v independent national electoral commission (inec)44 this case arose when apga alleged that inec had failed to properly supervise the conduct of elections, leading to disputes between multiple political parties. the supreme court ruled that while inec had a duty to oversee elections, political parties must also act in accordance with the law to avoid disputes. apga, in its petition, argued that the failure of inec to properly regulate the election allowed for manipulation by the ruling party. the court ruled that while inec’s oversight is critical, the actions of political parties in adherence to the rules play an equally important role in avoiding disputes. 5. mediation in resolving pre-election disputes in nigeria mediation is a voluntary, confidential process in which a neutral third party, the mediator, helps disputing parties to communicate and negotiate to reach a mutually acceptable solution. in the context of pre-election disputes in nigeria, mediation plays a critical role in addressing conflicts that arise during the electoral process, such as disputes over candidate selection, party primaries, and campaign conduct. mediation is typically less expensive 39 constitution of the federal republic of nigeria 1999 (as amended). 40 (2021) lpelr-55186(sc). 41 (2003) 18 nwlr (pt. 851) 182. 42 (2019) lpelr-49259(ca). 43 (2023) lpelr-60317(ca). 44 (2013) lpelr-22868(sc). african customary and religious law review (acarelar) 5 (2024) 25 | p a g e than court litigation and can resolve disputes more quickly, which is crucial in the time-sensitive pre-election period. mediation fosters collaborative problem-solving, helping to preserve relationships between political parties and candidates. in 2015 general elections in nigeria mediation was used to resolve disputes within the all progressives congress (apc) regarding candidate selection. the successful mediation prevented a potential split within the party and ensured a united front during the elections. also in 2019 gubernatorial elections in lagos state, mediation helped to resolve internal conflicts within the people's democratic party (pdp) regarding the selection of a gubernatorial candidate. this mediation process helped to prevent prolonged litigation and enabled the party to focus on the electioneering campaign. several statutes45 and regulations provide the legal basis for mediation in nigeria, particularly in the context of electoral disputes. mediation and arbitration act encourages the settlement of disputes through mediation and arbitration. the electoral act 2022 contains provisions that encourage the use of alternative dispute resolution (adr) mechanisms, including mediation, to resolve electoral disputes. section 6(6) of the constitution of the federal republic of nigeria 1999 (as amended) supports the use of adr methods, including mediation, in the resolution of disputes. in okorocha v pdp,46 the case emphasized the importance of adr in resolving internal party disputes. also in uche nwosu v pdp & ors,47 the court recognized the role of mediation in settling disputes related to party primaries. 6. conclusion enhanced awareness and training on the benefits and processes of mediation can lead to its wider acceptance and use. reforms to strengthen the legal framework supporting mediation can make it a more attractive option for resolving pre-election disputes. increased support from electoral bodies, political parties, and the judiciary can promote mediation as a preferred method for dispute resolution. providing training for legal professionals and electoral officials on mediation procedures is essential. advocate for amendments to existing laws to make mediation more accessible and enforceable is needed. institutions like inec should formally endorse mediation as a preferred method for resolving pre-election disputes. the role of a legal adviser is critical in our democratic journey when it comes to mediation and settlement of intra – party disputes. 45 mediation and arbitration act, electoral act 2022 and the constitution of the federal republic of nigeria 1999 (as amended). 46 (2013) 7 nwlr (pt 1353) 247. 47 (2019) 5 nwlr (pt 1650) 253. njoku, elom-obed & okorie: law and practice of bail in the magistrate’s courts 110 | p a g e law and practice of bail in the magistrate’s courts* abstract bail is the element of administration of criminal justice in the society which is constitutional right of an accused person. in granting an accused person to bail, magistrate is being faced with limited powers regarding the nature of the offence, the jurisdiction to entertain the bail of an accused person and magistrate is ceased with the power to admit an accused person to bail if the magistrate has no power to try substantive matter. it is mandatory that the magistrate shall grant bail to an accused person in simple offence punishable by not more than three years in imprisonment, and can exercise discretion in admitting an accused person to bail for noncapital offences while the magistrate has no power to grant bail for capital offence punishable with death. the problems associated with magistrate in granting the accused person to bail are lack of jurisdiction, nature of offence and the exercise of discretional power to grant bail. this research looked at the laws guiding the practice of bail in nigeria, the lack of jurisdiction of the magistrate to grant bail in some offences but can order for remand of an accused person and the constitutional presumption of innocence of an accused person. in solving this problem, the writer adopted analytical method of research and sourced material from primary and secondary sources such as statues, decided cases, text books and seminar papers. the research having been faced with the issues above recommended for the criminal justice reform which included enactment and constitution of authority to be in charge of drafting of charge and filing of information to the appropriate court and magistrate should grant bail to all charges before it pending the legal advice or filing of information or alternatively strike the charge out keywords: bail, law and practice, magistrate’s court, nigeria 1. introduction bail is the key element of administration of criminal justice in the society. when a person commits an offence and the person is arrested, ideally the suspect or an accused person is to remain in police custody until he is charged to court1 or when charged to court the accused person should remain in prison custody until the final determination of the guilt of the accused person. the reason for the detaining of the suspect or an accused person in the custody is to ensure that he appears in court at certain day, time and place to answer criminal charge or allegation made against him2. it is of note that in practice of criminal justice administration in nigeria, good period of time elapses between the arrest of the person suspected of having committed crime and the determination of the case in court. the concept of bail is essential in the administration of criminal justice in nigeria, since the law and or/ constitution considers an accused person to be innocent until he has been found guilty in a court of law. hence, where any person is arrested on the allegation that the person has committed an offence, such person must be charged to court within a reasonable time. it is the law that any person alleged to have committed and offence must not be unduly or detained in police custody as a wayof punishment since it should be reasonable to deduce that the mere fact that a person is alleged to have committed a crime is not a conclusion that the person is guilty of the offence3. bail is a constitutional basic right of any person alleged to have committed offence or crime, and hence, there is a need to preserve that freedom or liberty of people in the society. in the nigerian case of comptroller of nigerian prisons v. adekanye4, the court held thus: freedom is no doubt the greatest gift or heritage of man. omnipotence created man and accorded him with divine freedom. men are born free with liberty to think what he will, to say what he will and to go where he likes, all in a lawful manner, without let or hindrance from any other persons, private or governmental authorities. it therefore follows that, generally, detention of man by a fellow man is a violation of the law of god and man. i am not oblivious of the fact that there are checks and balances to the series of freedom given to man. to extent to which a man must not do his things in a way calculated to injure or adversely affect the exercise of the freedom of another man, his own freedom is limited. the whole of article 7 of the african charter on human and peoples rights (ratification and enforcement) act cap 10lfn1990 is in tune with the court and even to the highest court is guaranteed to the citizen whose fundamental rights are threatened; his right to presumption of innocence until he is proved guilty by a court of competent jurisdiction is defended by a counsel of his choice is offered to him on a time by an impartial court or tribunal remains sacrosanct. that came into force on the 17th day of march 1983 *by donatus ikechukwu njoku, faculty of law, ebonyi state university, abakaliki, *favour ozioma elom-obed, faculty of law, ebonyi state university, abakaliki; and *josephine n. okorie, faculty of law, ebonyi state university, abakaliki 1 s.a.n. nweke, principles of crime, prevention and detection 2nd edition, (enugu: ebenezer production nig. ltd, 2006)-p.231 2 ibid. 3httpiabdu-salaemabbasandco.com/blog-details. ph.d? title understanding-the-concept-of-bail-ininigeria-accessed on 20/01/2017 4 (1996)3 nwlr (pt 436)323 african customary and religious law review (acarelar) 5 (2024) 111 | p a g e in order to prevent the liberty of an accused person especially with the presumption of the law in nigeria, an accused person is innocent until he is proved guilty by a court of competent jurisdiction, a legal instrument called bail was evolved in tune with the universal concept of criminal law, in a civilized society that practices the rule of law as a way of life5. the court of appeal in pius ozo anaekwe v. commissioner of police6 held that unless the right to bail before trial preserved, the presumption of innocence secured after centuries of struggle, would lose its meaning. and the constitutional presumption of innocence enshrined under section 33(5) of the 1979 constitution can be invoked in a capital offence where a prima facie case has not been established against the accussed7. the administration of criminal justice in ebonyi state is guided by the constitution of the federal republic of nigeria, criminal procedure law8 and the practice direction rules9 among others. the granting of bail of an accused person in the magistrate courts depends on power or jurisdiction of the magistrate court to entertain the case. the various laws regulation criminal administration in nigeria gives a trial magistrate power to grant bail to an accused person charged before him for offence pending the determination of the case the accused person is charged for.10 bail may be granted pending trial or during trial or after conviction pending appeal. an application for bail pending trail can only be made after the process of arraignment of the accused person in court has been completed and the accused person take his plea to the charge except when the accused person is insane and the offence is bailable. an application for bail may be brought at my stage of the proceeding from after the completion of arraignment to before judgment is delivered.11 there are conditions that attach to admission of an accused person to bail which will depend basically on the nature of the offence and the circumstances of the offence or case and not excluding the ground upon which the bail application is brought and the ground upon which it is opposed. the nature and circumstances of the offence the accused person is charge may be capital offence, felonies other than capital offence and misdemeanor or other simple offences. this issue of nature and circumstance of offence borders on the jurisdiction of the magistrate court to assume power to trail the offence and admit the accused person to bail. in the case of capital offences, the magistrate courts lack jurisdiction to entertain the offence because magistrate court is not given power by law to grant bail to a person charged with capital offence and capital offences carry death penalty upon conviction.12 the felonies other that capital offences are offences that are not punishable by death penalty but carry a term of not less than three years imprisonment and the magistrate court has power to exercise its discretionary powers to grant bail to a person charged with a felony other than capital offence. misdemeanor and other simple offences are offences punishable with penalty of less than three years imprisonment. in considering the bail of an accused person, there are factors the court considers before exercising its discretion to grant or refuse to bail an accused person such as the proper investigation of the offence will be prejudiced, that no serious risk of the accused person escaping from justice will be occasioned, no ground exists for believing that the accused person if released on bail would not commit an offence among others. in the application for bail at the magistrate court, there is no laid down or specified procedure, the application for bail is often made only by the counsel for the accused person immediately after the conclusion of arraignment while the magistrate enquires from the prosecutor if he has any objection and the court will finally consider whether to admit the accused person to bail or not.13 the magistrate court states the terms and conditions for admitting an accused person to bail. the purpose of tying bail to terms is to put safeguard for ensuring the attendance of the accused person at his trail while his bail is subsisting.14 when the terms and conditions of bail are stringent, the accused person has to apply to court for review of bail and the court may consider same and redress terms of bail to more liberal terms. flowing from the above background of the study, bail is a constitutional right of the accused person since the constitution of nigeria presumed an accused person to be innocent until the contrary is proved in the court of law. the same constitution provides that no person should be deprived of his liberty except as stipulated by the constitution or statue. a bail being a security by a court for the release of an accused person or prisoner as a guarantee for his or her future appearance. the accused person enters into recognizance in the sum of money by way of security if the accused person fails to appear in court, instead of recognizance the accused person may be 5 https;//akintundeesan.blogspot.com/2015/04/the-right-to-bailasconstitutional.html?m=1accessedon10/01/2017 6 (1996)3 nwlr (pt 436)323 7 o. okafor, the constitutional framework for bail in nigeria in nigeria: a critical appraisal, nigeria law and practice journal vol.8 (enugu: council of legal education, nigeria laws of school, (2007) p.65 8 laws of ebonyi state 2009 9 ibid 10 y.d.u hambail, practice and procedure of criminal litigation in nigeria (lagos: feat print and publish limited, 2013) p. 539. 11 ibid 12 ibid 13 ibid 14 ibid njoku, elom-obed & okorie: law and practice of bail in the magistrate’s courts 112 | p a g e required to provide a surety. in granting an accused person to bail in the magistrate court, court is always encountered by jurisdiction to bail in the matter. this occurs when the offence upon which the accused person is charged is capital in nature. at times, the police who frame a charge, charge an accused person on bogus offence which will lead the magistrate to decline jurisdiction to entertain the charge, hence the magistrate will decline jurisdiction to grant or admit the accused person to bail. whereas the offence the accused person commits may not necessarily be capital offence, but the police officers may charge the accused person for capital offence in order to punish the accused person. in the criminal administration system, at times the law enforcement agencies rush an accused person to magistrate court while investigation is still on. there are some offences which do not have punishment by death like arson, breach of security and others, but magistrate court decline jurisdiction to entertain same. the magistrate is robbed of power not admit the accused person charged of capital offence or any serious offence to bail at the magistrate court level, but rather the accused person is reminded in prison and the prosecutor will be asked to transfer the case file to director of public prosecutor. so this case file takes director of public prosecution some weeks, months and years to look into, while the accused person will be in person custody, thereby breathing the provision of the constitution that presumed an accused person to be innocent. at times the accused person may be exonerated from the offences, thereby making the accused person suffer for offence he did not commit. at times trial of an accused person last for some years or long time. some accused persons after being admitted to bail jump bail. there are some problems which the magistrate court encounters in consideration of the bail of the accused person which this research will try to look into. some of the problems include the power of the magistrate court to order for remand of the accused person to prison in some offences like capital offences but the magistrate has no power to admit the accused person to bail on such offences without taking into cognizance the constitutional presumption of innocence of the accused person. in granting bail to the accused person, the conditions for bail are at times very difficult for the accused person to meet. the society and the accused person think that when an accused person is admitted to bail, that is the end of the case. the major problem is how to reconcile the constitutional provisions of people and the jurisdiction of the magistrates’ courts to admit a person to bail. the general objective of the research is to make a case study of the bail application in the magistrates’ court of ebonyi state. this study is designed to benefit the administration of criminal justice especially the court and law enforcement agents, practicing lawyer, litigants and students of law, among others. in the course of this research the study looked and appraised the concept of bail, the constitutional provisions of bail and the other or laws on bail, the holding charge doctrine and the magistrate court’s powers in administration of criminal justice on bail in nigeria and elsewhere. its scope looks at the law and practices of bail generally in the magistrates’ court of ebonyi state bail and in the administration of criminal justice. the work used analytical method of research and material from primary and secondary sources such as statutes, decided cases, textbooks, journals, articles and internet materials. 2. conceptual framework and literature review black’s law dictionary defined bail as a security such as cash or a bond required by a court for the release of a prisoner who must appear at a future time or as the process by which or on his own recognizance15. abdul salaam defined bail as the process through which an accused person who is arrested on the allegation of committing an offence is released by a constituted authority upon the provision of adequate security guaranteeing that the accused person would report at the police station or in court for his trial wherever his presence is required16. bail is a conditional freedom by which a person arrested for an offence is released on condition that he/she report on the day and place certain whenever his presence is required17. nweke defined bail as arrangement whereby an accused person is granted a temporary release from custody pending the determination of the case against him18. kawu defined bails as the process by which a person who is arrested or imprisoned is released temporary from state custody to sureties on personal recognizance on security taken for his appearance in court whenever he is required, until the determination of the case against him19. this is the practical definition of bail in nigeria’s courts. this definition has the following features: (a) a person is arrested or imprisoned (b) a person is released temporarily from custody (c) the authority must be state and not individual or private corporate body (d) the person must be released to surety or base on personal recognizance on security being taken (e) the person must appear i court when required till the charge/offence the person is arraigned is determined by the court (f) there must be a pending charge of crime against the person released on. there are three types of bail, they are: (a) police bail: the law empowers the police to admit any person suspected of committing a crime to bail pending the arraignment of such person to court20. ‘interlocutory applications, pertinent 15 b.a garner, black’s law dictionary, 8th edition: (dellas texas usa: west publishing co, 2004), p.150 16 hhp//abdu-salaam abbas and co.com/blog-details. phd?title-understanding-the-concept-of-bail-in-nigeria-accessed on 20/01/2017. 17 hpp//rhodieswprld.com/know-your-right-all-you-need-to-know-about-bail-in-nigeria-part accessed on 20/01/2017. 18 s.a. n. nweke, principles of crime: prevention and detection 2nd edition (enugu: ebenezer productions nig.ltd,2006) p.232. 19 s. d. kawu a paper titled: auditorium national judicial institute abuja on wednesday 20 th of april 2016. 20 sections 17 of the criminal procedure act, cap c 41 laws of the federation of nigeria 2010 and 27 of the police act and the administration of justice law of states of federation. african customary and religious law review (acarelar) 5 (2024) 113 | p a g e issues for consideration’ in a theme promoting performance through innovations and reforms being a seminar for the refresher course for magistrates on current trends in law and administration of justice at andrews otutu obaseki; (b) government agency bail: this is the power given to any government agency to admit any person to bail upon beach of any law which the said agency has power to exercise administratively; (c) court bail: this is the constitutional, fundamental and inherent power conferred on the court by the law and societal norms and traditional to admit any person to bail in the course of discharging or administering or exercising judicial powers. our main concern in this research is the court bail. nweke said that bail is a basic right of a person accused of crime other than capital offence. the issue of bail arises in three categories in criminal administration system which depends on the circumstances of each particular case, the nature of the offence in issue and the state of proceedings: (a) bail pending police investigation (b) bail pending trail in the court of law (c) bail pending appeal. the law gives the police officer in-charge of a police station to release the suspect on bail while the investigation of allegation of crime against the suspect is going on, if the suspect is arrested without a warrant and taken to a police station21. the police officer in-charge of a police station has power to release any person in his custody provided that it is a not capital offence and the person or suspect was arrested without a warrant, the police may release that person on bail upon entering into a recognizance with or without surety for a reasonable amount to attend or appear at the police station in such time as may be required by police. the reason for bail is to secure the attendance of the person alleged to have committed crime at the police station in connection with the investigation22. a trial court may have power to grant a person charged of crime or offence to bail pending the determination of the case the accused person is charged. a court may admit a person who is alleged to have committed crime to bail23. the court’s power to admit an accused person to bail depends on the nature of the offence the accused person is alleged to have committed. in nigeria, the magistrate courts have no power to admit any person charged of capital offence to bail24. the magistrate court may admit any person charged with felonies other than capital offence (offences punishable with imprisonment for a term of three years or more) to bail and the grant of bail of an accused person is at the discretion of the court25. the magistrate court has power to admit any person charged with misdemeanor and simple offences to admit except there are good reasons for refusing to admit the accused person to bail26. an application for bail of an accused person is made upon arraignment in the court of first instance, once the accused person pleads not guilty to the charge, the court is bound to consider the bail of an accused person has not applied for his bail27. the application for bail is made orally by counsel if the accused person is represented by a lawyer and the court has power to decide whether to grant an accused person to bail or not after hearing from the prosecution and the response of counsel if any concerning the charge and where the bail of an accused person is refused at the magistrate court the accused person may apply for his bail at the high court28. an accused person may be admitted to bail based on his own recognizance or on bond for a fixed amount, or to a surety who will execute a bond for a stated amount of money29. if the accused person failed to meet up with the terms and conditions of bail imposed for this bail, the accused person will remain in prison till he fulfills the conditions. the bail is free in court and there is no requirement for payment of money as a precondition to admit an accused person to bail. a woman has right to stand as surety, and in practice, a counsel for an accused person is not allowed to stand as surety.30 the court or police officer in charge of a station may permit an accused person to deposit a sum of money or such amount as the court or officer may deem fit in lieu of executing such bond other than bail bond other than bail bond which must be at the request of the accused31. if an accused person jumps bail and fails to appear as ordered by the court, the court has power to issue warrant of arrest of the said accused person. the surety maybe ordered to appear in court to show cause why the surety will not forfeit the bail bond. if the surety fails to satisfy the court with good cause, the bail bond should be forfeited and the surety will pay the amount in the bond before he will be discharged32. if and accused person fails to appear before the court on the sitting day(s) without a prior written notice or genuine excuse from the accused person, the court will issue a bench warrant for the arrest of the accused person and consequently, revoke the accused persons bail and commit the accused person to prison33. shaija34 sees bail as the act of setting at liberty a person arrested a detained in custody on security for his production on a certain date and time by his surety, to enable him appear before the court to answer to an allegation or charge brought against him. the concept of bail in the 21 ibid, p.23 22 ibid. 23 ibid. 24 ibid. 25 ibid. 26 ibid. 27 s.n. nweke op. cit, p.243. 28 ibid. 29 ibid, pp.244 & 245 30 ibid 31 ibid 32 ibid 33 ibid 34 ibid njoku, elom-obed & okorie: law and practice of bail in the magistrate’s courts 114 | p a g e magistrate’s court came into existence from the35 constitution of the federal republic of nigeria 1999 as amended which provides every person is entitled to his personal liberty which cannot be denied from him except in accordance with the procedure allowed by organized by the national judicial institute abuja delivered on 19th day of april, 2016 at andrews otutu obaseki auditorium, national judicial institute abuja. by virtue of section 35 (1) of the constitution. a person’s liberty may be deprived on the following grounds36. a. the execution of a sentence or order of a court in respect of criminal offence which the person is found to be guilty. b. to compel any person to comply with the order of a court. c. to secure a person to fulfill any obligation imposed on him by law. d. to bring a person to court upon reasonable suspicion of his having committed a criminal offence. e. to prevent a person from committing a criminal offence to such extent as may be reasonable. f. to deprive a person who is under 18 years for education or welfare. g. to isolate person or persons suffering from contagious or infectious disease, or unsound mind or addicted to drugs for the purpose of treatment or protection of the community and h. a person may be deprived of liberty for the purposes of prevent unlawful entry and removal of persons from nigeria. the main reason for bail is to secure the presence of accused person for his trial and to ensure that a person who is charged of committing crime or keep in awaiting trial is not kept in detention longer than the maximum period of imprisonment as stipulated by the law for such an offence. the main consideration for admission of an accused person to bail is whether the accused will appear to take his trials37. a person charged of having committed a crime is required by law to be arraigned in court within a reasonable time which if the person has been in detention from 3 months and above shall be released on bail either conditional or unconditionally or upon such conditions as are necessary to ensure that he appears for trial on any date as maybe fixed by court. the law imposes a duty on the prosecution to arraign a suspect accused of committing offence before a court of law within 24 hours or 48 hours depending on the nearness of the magistrate court to the place where the suspect is denied38. a magistrate was discretionary power to grant or refuse bail of an accused person arraigned in court before the magistrate. discretional power of a magistrate is the secret power inherent in him to decide cases on way or the other which the magistrate must exercise judicially and judicially in his decision and to act in the overall interest of justice39. a magistrate is said to have exercised his power judicially and judiciously in an application for bail when the judicial and judicious power of magistrate is predicated on the sound principles of law based on the sufficient facts and in the consideration of the nature of each particular case. the magistrate considers many factors and conditions before exercising discretional power to grant or refuse bail which include40 a. the nature of the offence or charge; b. the gravity of the punishment prescribed by law; c. the previous record of the accused person; d. the probability that the accused may or may not present himself for trial; e. the likelihood of the accused interfering with the investigations; f. the likelihood of the accused committing other offence or offences; g. the high prevalence of the offence within the community; h. the accused person has reasonable sureties to take him on bail; i. the health condition of the accused person the above conditions or factors are not exhaustive but act as some guidelines to aid the court in the exercise of his discretion to grant or refuse bail. in the southern nigeria, a magistrate can admit an accused person to bail upon oral or written application of the accused person’s counsel on the offence which the magistrate has jurisdiction to entertain, especially when there is no objection for bail from the production, but if the magistrate does not have jurisdiction to trial the offence the accused person is remanded in prison pending his application for bail at the high court. this procedure is known as holding charge in most jurisdiction of the court. in lagos state, any person charged with any offence of felony other than punishable by death may be admitted to bail, while bail of an accused person is compulsory if the offence is not punishable with death. magistrates court does not have power to admit an accused person to bail in capital offences in southern nigeria, and thus, will not grant the accused person to bail. in the northern nigeria, the magistrate does not have power to trial capital offences, but the magistrate has power to look at the first information report alleging that the accused person committed offence to know the following: a) whether there are no reasonable grounds for further inquire 35 justice of high court of benue state in a topic titled ‘considering of application for bail and no case submission in the magistrate court’ on lecture theme for promoting performance through innovations and reforms at the refresher course for magistrates 36 ibid 37 ibid 38 ibid 39 ibid 40 ibid african customary and religious law review (acarelar) 5 (2024) 115 | p a g e b) there are sufficient grounds for further inquiry; and c) such person may, pending such inquiry be admitted to bail. by the provision of section 35(1) of the 1999 constitution any person charged to magistrate’s court in nigeria for noncapital offence is entitled to bail depending on the nature and severity or the offence which the only reason for refusal of bail is when the prosecution has adduced or place enough facts before the court gearing to show that justice of the matter will be jeopardized if the accused person is admitted to bail41. the accused person has the onus to place before the court the facts that he did not commit the crime and there is no need for further inquiry which should convince the court to grant the accused person to bail. the application for bail under section 341 (3) of the criminal procedure code shall be by way motion supported by an affidavit with convincing fact why the court should call for further inquiry and it is immaterial that the prosecution has not file a counter affidavit. the most import consideration is that the accused person/ or applicant must adduce enough and convincing facts or materials to move the court to exercise his discretion in favour of the accused person/applicant42. if the prosecution is opposing the bail application of the accused person, he must provide the court with concrete evidence to show that if the accused person is granted bail, he will not likely to stand his trial or that the accused person will commit the same or similar offence. and failure of the prosecution to provide concrete and strong reasons in challenging the bail of the accused person will lead the court to grant an accused person to the bail. generally, in practice, if the magistrate has no jurisdiction to try an offence, the accused person is remanded in prison while the case is transferred to the office of the attorney general of the federation or state, the attorney general will act on the matter by issuing a legal advice or any other directive in respect of the offence to any officer or agent of government. the law did not provide how long the legal advice of the attorney general should be waited, while the accused person will be remanded in prison indefinitely without admitting the accused person on to bail for so long as the prosecution may wish on the reason that either that the investigation has not be completed or on the wait of the legal advice of the attorney general or that an information has not been filed in a court that has jurisdiction to try the offence43. the ideas of holding charge, awaiting legal advice or opinion of the attorney general or director of public prosecution, or information is not yet file in a court of competent jurisdiction are contrary to the constitutional right of an accused person for fair hearing, personal liberty and the presumption of innocent of an accused person. even though the powers of the magistrate are contained in the exercise of power to grant or refuse bail, the prosecution has to take into cognizance the public interest, the interest of justice and prevention of abuse of the legal process to ensure investigation and evidence adduced by the prosecution are given attention in order to decongest the courts and quick dispensation of justice44. if the magistrate does not have power to grant the accused person to bail, the court should remind the prosecution that the accused person should not be kept in prison custody more than necessary. if the magistrate strikes out case in same rarely cases, magistrates were called to produce and accused person after the information has been filed in some cases that the magistrates/have no jurisdiction to try an offence and in some cases, magistrates were accused or blackmailed by the prosecution for encouraging crime in the society, above hence, these should not discourage the magistrate to urge the prosecution to live up to expectation45. when an accused person is convicted, the accused person loses the constitutional right to bail which the court has discretional power to grant bail pending appeal upon the accused person showing exception or special circumstance which previous conviction of the accused person is a barrier for admission to bail. the exceptional circumstances are:46 (a) the hearing of the appeal is likely to be unduly delayed and application would have served the whole sentence or a considerable portion of the sentenced imposed; (b) the health of the applicant; (c) the applicant is of good character; (d) where appeal is likely to succeed. in lagos state, there are 3 categories of person upon conviction that cannot be granted bail except on the court’s discretion, which include47: (a) an appellant who has previously served a sentence of not less than six months imprisonment and he has been released (b) likely commit some other offences (c) likely evade or attempt to evade justice by not standing for his trial. the accused person is required to produce a surety who will stand for his bail upon entering into a bond of fixed sum which the surety will forfeit if the accused person jumps bail. the court admits an accused person to bail on self-recognizance upon satisfied that the accused person lives within jurisdiction and he is assessable. the qualifications to stand as surety are48: (a) the financial resources of the surety (b) the nearness the surety to an accused person which may be relation and the defined residential address (c) the surety must be a person of integrity. the law has breached the handle of baring a woman to stand as surety49 and a child shall not execute recognition for himself but a parent or legal guardian or any other fit person or without a surety50. the procedure to be followed for forfeiture of bail bond it the accused person jumps bails are:51 a) the surety must be asked to show what steps he took to bring the accused to court. 41 ibid 42 ibid 43 ibid 44 ibid 45 ibid 46 ibid 47 section 58 (2) of the magistrate court, laws of lagos state 1994 in ibid. 48 ibid 49 sections 167 (3) of the administration of criminal justice act 2015 and 118 (3) of the lagos state law of 2011 respectively 50 sections 166 of the administration of criminal justice act 2008 in ibid 51 ibid njoku, elom-obed & okorie: law and practice of bail in the magistrate’s courts 116 | p a g e b) the bail bond must be exhibited c) the surety is called upon to pay the penalty or show cause why bail bond should not be forfeited. in lagos state if the surety is dead, the bond shall be recovered from his estate. a magistrate has power to cancel or mitigate forfeiture of bail bond. if can accused person is unable to provide surety for his bail the court may commit him to prison and discharge order for surety or meet such other conditions that is just and proper in circumstances or order to give security for behavior, or an order committing him to prison until he finds sufficient sureties52. the magistrate should ensure that nobody frustrate the administration of justice or unduly deprive the accused person to bail. the magistrate should ensure that bail is true while the bail forms are not sold court. prosecutors and workers of court should not exploit sureties and accused person while female sureties are to be allowed to stand as sureties for the bail of their spouse and family members. the magistrates should ensure that justice is done to all manner of persons without fear or favour according to court53. the above work did not reconcile the constitutional provisions of rights of an accused person to be innocent, to personal liberty and fair hearing as it concerns the magistrate’s power to assume jurisdiction over case before the court coupled with the time framework for waiting for legal advice or opinion of director of public persecutions or attorney genera 3. legal framework for bail in nigeria bail is the constitutional right of an accused person since the accused person is presumed to be innocent unless the contrary is proved. hence, if an accused person has not been convicted of any offence, the accused person is presumed to be innocent. section 35 (1) of the constitution54 guarantees the right of personal liberty of every person in nigeria. section 35(1) of the constitution55 provides thus: 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 sentences or order of a court in respect of a criminal offence which he has been found guilty; b. by reason of his failure to comply with the order of a court in order of a court in respect of a criminal offence which he has been found guilty. c. for the purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence; d. in the case of a person who has not attained the age of 18 years, for the purpose of his education or welfare; e. in the case of a person suffering from infectious or contagious disease, 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 for effecting the expulsion, extradition or other lawful removed from nigeria of any person or the taking of proceedings relating 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 for the offence. the right to personal liberty means that a person has a right not to be subject to imprisonment, arrest and any other physical coercion in any manner that is not legally justified56. lord denning57 sees right to personal right thus: ‘the freedom of every law-abiding citizen to think what he will, to say what he will on his lawful occasions without let or hindrance from any other persons’. the constitutional guaranteed right to person liberty is not absolute but there are restrictions58. in ekenugo v. federal republic of nigeria59 the court of appeal held thus; the right to personal liberty guaranteed under section 35(1) of the 1999 constitution is not absolute hence can be impugned upon temporarily by agents of the state for the purpose of preventing a person from committing an offence or if there is a reasonable suspicion that he has committed one. for an authority to interfere with a person’s liberty due process of law must be followed and strictly complied with. by virtue of section 36(5) of the constituion60 every person who is charged with committing an offence is presumed to be innocent unless the contrary is provided. by virtue of this subsection the onus is on the prosecution to prove to the court that an accused person’s application for bail is one that should be refused and tying the enforcement of an accused person to bail for the accused person to first deposit a certain amount stated in the charge to have been stolen by the accused person is contrary to the constitutional provision of presumption of innocence of the person61. in okoronkwo v. frn962 the court of appeal held thus: ‘however, there is no doubt that by virtue of our 52 ibid 53 ibid 54 the constitution of the federal republic of nigeria 1999 (as amended) 55 ibid 56 okpara, human rights law and practice in nigeria (enugu: chenglo limited, 2005), p.1404 ibid. 57 ibid 58 hon, constitutional law and jurisprudence in nigeria (port harcourt: pearl publishers, 2004), p.926(2001) 59 nwlr (pt.708)117 60 ibid 61 s.t. hon, op. cit., p. 113 62(2015)44 wrn 156 at 165 r.9 african customary and religious law review (acarelar) 5 (2024) 117 | p a g e adversarial system of administration of justice and section 36(5) of the constitution of the federal republic of nigeria (as amended), an accused presumed to be innocent until he is proved guilty, no matter the nature of offence for which he is alleged’. the burden of prove lies on the person who alleged to be unlawfully arrested to prove particular facts and once there is prove that a person is on the person that did the arrest and detention. hence, the onus is on the person who admits arrest and detention of a person to prove that such arrest and detention is lawful63. by virtue of sections 35(4) of the constitution64, any person who is arrested or detained in accordance with the law shall be brought before a court of law within a reasonable time, and this acts as a safeguard for the protection of the liberty and right to fair hearing of any person in nigeria65. section 35(4) (c) of the constitution66 provides thus: ‘any person who is arrested or detained in accordance with subsection (1)(c) of this section shall be brought before a court of law within a reasonable time, and if he is not tried within a period of; (a) two months from the date of his arrest or detention, in the case of a person who is in custody or is not entitled to bail; or (b) three months from the date of his arrest or detention, in the case of a person who has been released on bail, he shall (without prejudice to any further proceedings that may be brought against him be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date. section 35 (5) of the constitution67 provides in subsection (4) of this section, the expression ‘a reasonable time’ means; (a) in the case of an arrest or detention in any place where is a court of competent jurisdiction within a radius of forty kilometers, a period of one day; and (b) in any other case, a period of two days or such longer period as in the circumstances may be considered by the court to be reasonable. section 35 (7) of the constitution68, excluded the protection of section 35 (4) of the constitution for people who are charged for capital offence and members of armed forces and nigeria police force who bare detained in the course of serving sentences imposed on them by their forces. in obekpa v. cop69 where the accused person was charged to magistrate court grade ii and the accused person’s bail was refused at the said magistrate on the ground that if the accused person is released it will be very difficult to arrest other suspects at large. on the application for bail of the accused person at the high court was opposed by the prosecuting counsel on the ground that since the accused person has not stay up to 2 months in detention as constitutional was required was rejected by justice idoko j. and stated thus; a it appears the spirit behind the provisions in section 32 (4)(a) and (b) of the constitution is to keep an accused person out of incarceration until found guilty through the process of court trial. it is a conditional privileges which he is entitled to under the escape punishment which any period of imprisonment would inflict while awaiting trial; the stay of prison guarantees easy accessibility to counsel and witnesses and ensures unhampered opportunity for preparation of the defence at much further advantage in this regard is this preserved, protected and allowed the presumption of innocence constitutionally guaranteed to every individual accused a criminal offence would lose its meaning and force. in bamaiyi v. state70, it was held that the provisions of subsection 35(4) of the constitution are not absolute in terms; neither do they deprive the court of discretion in bail matters and that the provisions are only meant to complement the court’s power in dispensing bail 4. discretionary powers of magistrate to grant bail and factors to be considered by court to grant or refuse bail. by virtue of constitutional provision, the accused person is presumed to be innocent of any offence until contrary is proved and moreso, as the personal liberty of every person is guaranteed. in the court to exercise its discretional power to admit an accused person to bail, which discretional power must be exercised judicially and judiciously in overall interest of justice. a magistrate is said to have exercised its power judicially and judiciously when the magistrate applies the sound principles of law based on available and sufficient facts presented before the magistrate and taking into 63first bank of (nig.) plc v. a.g federation (2013) 30 wrn 94 p.102. court of appeal; director of state security, kwara state v. nuhu (2014) 14 wrn 117 p.126 v.8. 64 op.cit;okoronkwo v. frn. op.cit. 65 ukatu v. cop (2001) fwlr (pt.66)755; oshinaya v. cop (2005)4 aclr 342; ugwuda v. cop (2005)1nqlr 107; jimoh v. cop (2007)5 aclr 275 66 op.cit 67 ibid. 68 op.cit 69 (1982) nclr 420 in o. okpara, op. cit p.157 70 (2001) 2 nwlr (pt. 698) 435 njoku, elom-obed & okorie: law and practice of bail in the magistrate’s courts 118 | p a g e consideration the type and nature of each particular case30. in anajemba v. fgn71, the appeal court held that in application for bail pending trial, a trial judge is being called upon to exercise his discretion judicially and judiciously on the materials placed before him both in the proof of evidence and respective affidavits of the parties. discretion in general, is the exercise of power or right to act in certain circumstance according to personal judgment and conscience. judicial discretion in particular is the exercise of judgment or decision making by a judge or court based on what appears fair under the circumstances and guided by the rules and principles of law. it is a court's power to act or refuse to act when a litigant is not entitled to demand the act as a matter of right. in the exercise of such powers, discretion is normally that of the trial court and not of the appellate court hence the latter cannot substitute its own discretion. the conditions that the court must take into consideration to admit an accused person to bail include:72 (a) the nature and seriousness of the offence; (b) the nature and strength of the evidence against the accused person; (c) the gravity of the punishment; (d) the criminal record of the accused person if any; (e) the likelihood of the accused attending his trial; (f) the possibility of the accused interfering with withness or further investigation; (g) detention for the protection of the accused person; (h) the necessity to procure medical or social report pending final disposal of the case; (i) the likelihood of further charge being brought against the accused person; (j) the probability of guilty of an accused person. 5. the terms of bail the right of bail being a constitutional right is contractual in nature which last for only the period of the trial and elapse on the conviction or acquittal of the accused person73. the reason of tying bail to terms is to ensure the attendance of the accused person to his trial when he is on bail. the terms of bail should not be stringent and where the terms of bail are stringent or excessive it amounts to refusal of bail and the accused person is entitled to approach the court for variation74. bail being contractual in nature is provided in criminal procedure code. section 345 of the criminal procedure code75 provides that: before any person is released on bail, he must execute a bond for such sum of money as determined by the police or the court on the condition that such a person must attend at the time and place mentioned therein until otherwise direced, and if a person is released on bail, the sureties must execute the same or another bond or other bonds containing conditions to the same effects. in okoronkwo v. frn76 the court of appeal held thus: the terms and conditions upon which bail is granted cannot be at the whims and caprices either the court or an accused person, the court can only exercise its discretion judicially and judiciously by taking into consideration the facts and circumstances of a particular case and the applicable law, in this case sections120 and 122 of the criminal procedure act and 35 (4)(b) of the constitution. the provisions of section 120 and 122 of the criminal procedure act are very clear and unambiguous, a surety must enter into a bond for the amount of money set for the bail of an accused person, the surety must be prepared to forfeit that amount to state if the accused jumps bail. it is a contract between the state and the surety. the court must be satisfied that the surety has the means to fulfill that statutory term of contract, any term of variation proposed by the applicant is therefore, unacceptable in law. the terms or conditions for grant of bail are: a. bail on self recognizance: an accused person or convict is said to be granted bail on his self recognizance when the accused person or convict is not required to enter into bond or to provide a surety. bail based on self recognizance is rarely granted to an accused person except the alleged offence is a minor offence and the accused person is a reputable and responsible member of the society77 b. bail on a bond for a fixed amount. an accused person or convict may be admitted to bail upon his executing a bond for a fixed amount of money without surety, that he will attended court on a specified date to stand his trial. the bail bond is a writter undertaking entered by the accused person that he will be religious to attend court while he is admitted to bail. the execution of fixed amount money need not be entered before the court,78 if the accused person absconds his attendance when required he will be liable to pay the amount of money stated on the bond 79 or he will be committed to prison80. c. bail on bond with surety. the court can admit an accused person to bail upon production of surety (ies) who will enter into recognizance. 71 amagu v. state (2015) 41 wrn 123 ca; suleman & anor v. cop, plateau state (2008)21 wrni sc. 72 y.d.j hambail, op.cit, pp. 546 & 347 73 okora o y. frn (2015) 44 wrn 156 at pp. 163 &1645 74 section 120 of the criminal procedure law of ebonyi state 2009 75 laws of the federation of nigeria c.41 vol. 4 2010 76 op. cit 77 b. osamor op. cit, p.98 78 section 126 of the criminal procedure law op. cit 79 ibid 80 section 130 of the criminal procedure law of ebonyi state 2009 african customary and religious law review (acarelar) 5 (2024) 119 | p a g e section 122 of the criminal procedure code81 provides: ‘an accused admitted to bail may be required to produce such surety or sureties as in the opinion of the court admitting him to bail, will be sufficient to ensure his appearance as and when required and shall with him or them enter into a recognizance accordingly’. the surety makes undertaking with the state that the accused person will attend or stand for his trial for the alleged crime the accused person is being charged when needed. the amount of money which the surety enters into recognizance need not be entered before the said court, but may be entered into by the parties before any other court or before any registrar or before any superior officer of police or officer in charge of a police station or before superintendent of prison or any person in charge of such prison if the party is in a prison and the provisions of law with respect to recognizance before a court shall apply as if the recognizance has been entered into before the said court82. if any person bound by recognizance to appear before a court wants to evade justice or has evaded justice by moving out of the geographical area, the court will cause him to be arrested and may commit him to prison until the trial and unless the court shall think fit to admit him to bail upon further recognizance5. this means that any person who enters into recognizance with the court is not enjoined to leave outside the jurisdiction for the purpose of residence. in order to ensure the attendance of any accused to his trial or to ensure that an accused does not jump bail, an accused is usually released on bail to a surety or sureties who would enter into a bond to produce the accused whenever he is needed and would usually undertake to forfeit a certain sum of money if the accused jumps bail. the court of appeal held in okoronkwo v. frn83 said thus: in order to ensure that a surety has the means or the financial capacity up to the amount of bail granted, the proposed surety is required to swear to an affidavit of means and sometimes required to submit documents of property within the jurisdiction of the court which is worth the amount set for the bail that is the spirit and intendment of the provisions of section 120 and 122 of the criminal procedure act. the court has power to vary recognizance if the surety is unsuitable and can order the accused person to execute a fresh recognizance with other surety.84 a surety may apply to court to be discharged recognizance either wholly or so far as it applies to the applicant, and the court will issue a warrant of arrest of the principal being the accused person directing him to be brought before the court and on the appearances of the principal or the accused person, the surety is discharged of recognizance either in wholly or in so far relate the surety, the accused person shall be asked to look or find sufficient surety to enter into a fresh recognizance and if he fails he will treated as if he has no surety.85 section 136 of the criminal procedure law provides6: where a surety to a recognizance dies before the recognizance is forfeited his estate shall be discharged from all liability in respect of the recognizance. the qualifications to stand as surety for an accused person include:86 a) the financial resources of the surety; b). the relationship between the surety and an accused person; c) the social status of the surety in the society like the position the surety is holding in the society, business, religion, place of work among others; d) the surety must be a person of integrity. an accused person is said to have jumped bail when the accused person fails or refused to attend the court on the date fixed by the bail bond. if the accused person jumps bail, the court may:87 a) revoke his bail; b) issue a bench warrant for his arrest; c) order for the forfeiture of the bail bonds and upon forfeiture of the bond, order the surety to pay the sum stated in the bond into the court registry. the court has power to order for an arrest of any person who enters into recognizance with him to appear before him for breach of recognizance88. there are procedures for forfeiture of bail bond which must be strictly followed. these include:89 i) the surety must be given an opportunity to show cause why the bail bond should not be forfeited, and the steps the surely has taken to bring the accused person to court; ii) that bail bond must be exhibited90; iii) the bail bond eventually executed by the surety must be executed. in ebonyi state and most jurisdiction in the southern nigeria, once the offence is within the jurisdiction of the magistrate, bail can be granted on oral application from the counsel representing the accused, especially where the prosecution has no objection to the application. where however, the court has no jurisdiction to try the offence, the accused person is remanded in prison custody for awaiting trial. 6. jurisdiction of magistrates courts in criminal offence the magistrate's court is established91 and divided into district,92 for the purpose of exercising all the jurisdiction and powers as may be conferred upon it by the law. the magistrates can be grouped as:93 a) chief magistrates; b) senior magistrate; c) magistrates. a person shall be appointed as a chief magistrate and magistrate if the person is qualified to practice as an advocate or solicitor in a court having unlimited jurisdiction in civil and criminal matters in same part of the commonwealth for not less than seven years and three years respectively or has served as the chief magistrate or senior magistrate or magistrate before the coming into o operation of this magistrate's courts law.94 the chief magistrate has power or jurisdiction in criminal causes for the summary trial and determination of criminal cases 81 section 122 of the criminal procedure act cap. c41 volume 4 laws of the federation of nigeria 2010 82 section 126 of the criminal procedure act ibid. 83 supra 84 section 133 of the criminal procedure law op. cit 85 section 134 ibid 86 t.m. shija op. cit, p.19 87 b. osamor op. cit, p. 102 88 section 143 of the criminal procedure law ibid 89 ibid 90 tea v. cop (1963) nwr 77; cop v. john & anor (1981) nlr 139 in t.m shija op. cit, p. 20 91 section 4 of the magistrates' courts laws of ebonyi state cap. 110 vol. 4 laws of ebonyi state 2009 92 section 93 section 6 (1) ibid 94 section (2) and (3) ibid njoku, elom-obed & okorie: law and practice of bail in the magistrate’s courts 120 | p a g e charged with committing an fence or with doing any act or with omitting to do any act required by law punishable either by fine not exceeding fifty thousand naira or by imprisonment not exceeding fourteen years or by both.95 where the offence is not punishable on summary conviction for omission or act which punishment exceeds fifty thousand naira or imprisonment exceeding fourteen years, the chief magistrate may trial offence and will not punish the offender for more than fourteen years imprisonment or fine of exceeding fifty thousand naira provided the accused person consent to be tried by the chief magistrate, and where the consent of the accused person is not obtained before trial, the trial shall be null and void ab initio96 the senior magistrate and magistrate have power or jurisdiction to summarily trial and determine criminal charges or cases with committing an offence or with doing any act or with omitting to do any act required by law punishable either by fine not exceeding thirty thousand naira, twenty thousand naira, ten thousand naira or five thousand naira or imprisonment for not more than twelve years, ten years, five years or one year respectively. the senior magistrate or magistrate may try offence where the offence is not punishable on summary conviction exceeding twelve years, ten years, five years, or one year or fine not exceeding thirty thousand naira, twenty thousand naira, ten thousand naira or five thousand naira respectively but the senior magistrate or magistrate cannot impose penalty more than twelve years, ten years, five years or one year or fine not exceeding thirty thousand naira, twenty thousand naira, ten thousand naira and five thou sand naira respectively provided the accused person consent to be tried by the senior magistrate or magistrate and failure to obtain the consent of an accused person before being tried by the senior magistrate lead to null and void of the trial.97 7. the practice direction in criminal trial and holding charge ebonyi state practice direction98 provides that the practice direction shall, save to the extent and as may otherwise be ordered by the honourable chief judge, apply mutatis mutandis to all cases before the high courts and magistrate courts of ebonyi state considering the rules of each respective court and to the extent reasonably possible. by virtue of section 3(2)(1) of the ebonyi state practice direction,99 the prosecution is under a mandatory duty to deposit all required evidences the prosecution shall rely on during trial of an accused person to the court before a suspect is charged to court. these include: (a) the extra judicial statement of parties and other witnesses; (b) police investigation report; (c) list of exhibits. the above provision is to ensure that trial of an accused person is not unduly delayed and this will aid the director of public prosecutions to prefer information or charge. it is to be noted that shall in the provision is compulsory or an order command which does not give court or magistrate room to exercise discretion. but the problem with this provision is that it does not provide how long the case file will be with director of public prosecutions before the information is filed preferred. time protocol for remand orders in the magistrates courts are: a. where an order of remand of the person is made, such order shall be for period not exceeding 60 days in the first instance, and the case shall returnable within the said period of 60 day100. b. where, on application in writing, good cause is shown why there should be an extension of the remand period, the court may make an order for further remand of the person for a period not exceeding 30 days and make the proceedings returnable within the said 30 days101. c. at the expiration of the remand order made pursuant to subsection (1) or (2) of this section, and if the person is still remanded with his trial having not commenced, or charge having not been filed at the relevant court having jurisdiction, the court shall issue a hearing notice on the inspector general of police and the director of public prosecutions of the federation, or the commissioner of police of the state or the director of public prosecutions of the state, as the case may be, and adjourn the matter within a period not exceeding 30 days of the expiration of the period of remand order made under subsection (1) or (2) of this section, to inquire as to the position of the case and for the inspector general of police, commissioner of police and/or the director of public prosecutions to show cause why the case should not be struck out102 the court may exercise power of remand of an accused person in on the following grounds103: a) whether the person remanded is present in court or not; b) on its own motion or on application, including an application by a person in charge of the person or other place of custody where the person remanded is detained. the legal advice of the director of public prosecutions shall in all cases be copied to the court and the court may not only on such copy of the advice to make any order that may be necessary in the circumstances. 104 where the legal advice of the director of public prosecutions indicates that the person remanded has no case to answer, the court shall release the person forthwith 105. a person is only to be deprived of his personal liberty in certain circumstances and procedures permitted by law. a holding charge is not permitted to hold, like a sword of damocles, over a person. these phenomenon of 'holding charge' 'awaiting legal advice' and so on completely offend the constitutional right to fair hearing, presumption of innocence 95 section 20 (a) and (b)ibid 96 section 20 (c) ibid. 97 section 22 (c) ibid. 98 section 1 of ebonyi state practice direction 2013 99 op.cit 100 section 9(c) ibid. 101 section 9(2) ibid. 102 section 9(3) ibid. 103 section 10(1) ibid. 104 section 10(2) ibid. 105 section 10(3) ibid. african customary and religious law review (acarelar) 5 (2024) 121 | p a g e and personal liberty of the accused. although it is not ideal to unduly rush in investigation or to grant bail unduly in capital offences or in noncapital, but grievous offences, but the constitutional right of every accused person to a presumption of innocence and trial within reasonable time must be upheld. courts should be discouraged from taking up cases on a holding charge because it is an illegal system whose bad effect is to deny personal liberty guaranteed by the constitution and defeat to presumption of innocence. the criminal procedure act, makes provisions which control bail for the preservation of liberties. section 17 of the cpa106 states that where a person is arrested without a warrant for non-capital offence, the police may release him on bail, where it is not practicable to take the person to court within 24 hours. in this case, the police may require the suspect in question to execute a recognizance to appear before a court at a time and place therein stated. where the investigation cannot be immediately concluded in respect of an alleged crime the police may also release the suspect on bail subject to recognizance107. section 19 of the criminal procedure act108 enjoins the release by the police of all persons in custody against whom there is no enough evidence to warrant a prosecution. many judicial authorities condemned the practice of holding charge in nigerian criminal jurisprudence. in enwere v. cop28 the appellant was first arrested and remanded in police custody on 11th of may 1992 on charges of conspiracy to commit a felony, to wit: murder, and the unlawful killing of a member of the abia state house of assembly. on the same day, calabar high court released him on bail upon an application under the fundamental rights (enforcement procedure) rules, he was again denied his liberty because he was re-arrested by the police on the 21st of may, 1992. on the 27 of may, 1992, the appellant was arraigned before the isuikwuato magistrate court which refused him bail for want of prosecution and rather ordered his remand in the isuikwuato police station. on 31st of december 1992, he applied to abia state high court for bail which though unopposed was rejected. there was no charge before the high court. dissatisfied with the decision of the high court, the appellant appealed to the court of appeal. the appeal court held that: (1) an accused person who has not been tried and convicted by a competent court is entitled to bail as a matter of right unless there are special circumstances that prevent the court from granting it. this is because a person who has not been found guilty of an offence is prima facie entitled to his liberty. (2) a ‘holding charge’ is unknown to nigerian law and an accused person detained there under is entitled to be released on bail within a reasonable time before trial more so in non-capital offence. (3) as the constitution of the federal republic of nigeria 1979 or any other existing law in force in this country does not provide for a ‘holding charge,’ an accused ought to be released on bail within a reasonable time before trial although such a situation is admittedly more relevant to non-capital offences. in onagoruwa v. state109 the court of appeal condemned the holding charge when it held that; it is an elementary but most vital requirement of our adjectival law that before the prosecution takes the decision to prosecute,which is a forerunner or precursor to the charge decision, it must have at its disposal all the evidence to support the charge. in a good number of cases, the police in this country rush to court on what they generally refer to as a holding charge, even before they conduct investigations, although there is nothing known in law as a ‘holding charge.’ happily, that was not the situation in this matter. whenever the investigation does not succeed in assembling the relevant evidence to prosecute the accused to secure conviction, the best discretion is to abandon the matter and throw in the towel. that to me is a commendable decision of courage and that is the best decision. on no account should the prosecution go out of its way in search of evidence to prosecute when it is not there. when it degenerates to such a situation of hunting down, the prosecution is no more regarded as the prosecutor but as a persecutor. and that is not consistent with the philosophy of our adversary system of adjudication. the court went further to state that the criminal law is predicated on the commission of an offence. it is not predicated on some assumption or speculation that an offence has been committed. 8. conclusion and recommendations bail is a constitutional right of an accused person charged of committing offence. the constitution of the federal republic of nigeria guarantees the liberty of every person except as may be stipulated by the law110. the same constitution of nigeria presumed every accused person to be innocent unless the contrary is proved. the purport of this section is that the accused person has not committed the offence he is alleged or accused, which in the circumstance entitle the accused person to every right and freedom that is being accorded to every citizen of the country, hence, the bail of an accused person pending the trial of the offence or charge. the magistrate is enjoined to exercise discretion judicially and judiciously in admitting the accused person to bail for offences that are not capital offence punishable by death, while the magistrate is mandated to grant bail to an accused person charged of simple offences that a punishable by not more than three years imprisonment. the power of the magistrate to grant bail is limited in some cases such as issues of jurisdiction of the magistrate court to entertain the 106 op. cit. 107 o. okpara, op.cit., p.16927 108 ibid 109 (1993)4 nwlr (pt.299)3393 110 section 35 of the constitution of the federal republic of nigeria 1999 (as amended) njoku, elom-obed & okorie: law and practice of bail in the magistrate’s courts 122 | p a g e case which robs the court jurisdiction to pronounce on the accused person's bail and the law provided that the magistrate has no power to admit an accused person to bail for capital offences punishable with death. nigeria in the bid to ease trial of criminal cases enacted administration of criminal justice act111, and some states of the federal enacted state's law112 to complement the administration of criminal justice act, which ebonyi state chief judge established ebonyi state practice direction113 to wit: for fair and impartial administration of criminal cases and to eliminate unnecessary delay and expenses, and to eliminate totally all traces of holding charge in our legal jurisprudence114. in ebonyi state, prosecution115 is required to deposit all evidences to be relied to the registrar of the court before a matter is charged to court including exhibits. this has arrested the issue of case file being missing at the police while the accused person will be remanded in prison custody for awaiting trial for long period not conceived in law. the accused person is ordered by the magistrate to be remanded in prison custody for awaiting trial where the magistrate has no jurisdiction to try an offence the accused person is being charged and the burden of prosecuting the accused person is transferred to the attorney general of the federation or the state or director of public prosecution as the case may be for legal advice or for any other directive or to file information116 which has no limited time to file information or opinion of the attorney general or the director of public prosecution to be sought. this is totally contrary to the constitutional provisions117 of right to personal liberty, hearing and presumption of innocence of the accused person. the non-grant of bail of an accused person has made innocent people to suffer in prison custody over cases or unknown to them or hatred or false alarm as the magistrate always decline jurisdiction to entertain the bail of an accused person who is charged with offence the magistrate has no jurisdiction to entertain. once an accused person is convicted, he does not have constitutional right for bail unless the accused person proved special circumstance before a court can admit the convict to bail. the magistrate has a discretion to exercise judicially and judicious to admit the accused person to bail since bail is the constitutional rights of an accused person. the magistrate in exercising power to grant an accused person to bail has limited power as regarding the jurisdiction of the court. the recommendations made herein will aid the administration of criminal justice in ebonyi state and a nigeria in general, if the recommendations are to be abode. there is need to work and amend the nigerian criminal jurisprudence to empower the that magistrate being the first court a suspect is arraigned for trial to have jurisdiction to grant bail to an accused person pending the time the information is filed or the legal advice of the attorney general or director of public prosecution is obtained. there is need to enact an act or law and constitute an authority attached to ministry of justice or office of the attorney general to be in charge of drafting charge or charging a suspect to court and filing of information to the appropriate court that has jurisdiction to avoid a suspect being charged on a bogus or unwarranted and ill-conceived charge and the court that has no jurisdiction in order to curtail breach of constitutional provisions of right of a person. there is need to employ lawyers and to be well paid who will be in charge of drafting of charges and filing of information to the appropriate court to avoid inducement and delay in the administration of criminal justice. the magistrate in exercising discretion to grant bail shall exercise its power judicially and judicious anchoring on the sound principles of law based on sufficient facts and consideration of each particular case taking into cognizance public interest, the interest of justice and prevention of abuse of the legal process which good faith shall be at the mind of the magistrate as the watch word. 111 2015 112 administration of criminal law of lagos state 2011 113 2013 114 section 2 ibid 115 section 3(2)(1) of the ebonyi state practice director op. cit 116 sections 174 (1) and 211 (1) of the constitution op. cit; 105 of the administration of criminal justice act op.cit 117 section2 35, and 36 of the constitution op. c.t african customary and religious law review (acarelar) 4 (2023) 36 interrogating the enforcement of the covid-19 pandemic on religious liberty under international law* abstract the article examined the safety measures, restriction to worship, the conduct of religious rituals, human right challenges, perception of religious authorities, governmental policies, enforcement of the covid-19 pandemic on religious restriction, challenges brought on by the rapid spread of covid-19 (coronavirus), the coronavirus pandemic has impacted religion in various ways, including the cancellation of worship services of various faiths, closure of sunday schools. many churches, synagogues, mosques, and temples have offered worship through live stream amidst the pandemic. beyond the obvious health repercussions, this global pandemic has presented major disruptions for global religious gathering. the article has taken a cursory survey of the impact of covid-19 on religious restriction, response and impact, food and medical assistance, social justice. the article concludes by recommending that religious and community leaders should promote messages of unity and discuss with community members the importance of preventing the social stigma of people and groups. keywords: covid-19, restriction, religion, public health, enforcement, impact and response 1. introduction in response to the global public health crisis posed by the covid-19 pandemic, the federal, state and local governments are ramping up social distancing practice and directives, including the closing of non-essential businesses, schools and venues that typically attract large gatherings. the state and the local enactments have varied as to whether and to what extent they afford an exemption to houses of worship. regardless, most religious congregations have suspended services and now move to digital communication, such as live streaming of services, as an alternative; the question as to whether there is acceptance or opposition to such religious restriction is a matter of fact and not on the bases of theological convictions, many did so even in the absence of state or local government directives calling for the suspension of large gatherings which others have followed suit once those directives were forth coming. this article attempts to examine the religious liberty implications of the pandemic-related restrictions on assembling of religious purposes. and what other questions are presented by responses to the pandemic both in terms of impact on religious organizations and as they relate to other churchstate concern. how far can a government limit religious freedom in the name of fighting corona-virus under international law? as the global pandemic continues, many national and local governments are grappling with this question.1 religious gatherings are important opportunities for people to practice and share their beliefs but they are also sites for transmission of covid-19, endangering not only participants in the gathering but everyone with whom they interact. this pandemic crisis requires decisive government action, but governments often use times of crisis to encroach on individual liberty and freedoms or target monitoring groups long after the crisis has passed.2 religious and faith based institution and teachings, as well as traditional actors, can positively contribute to preventing the spread of the virus and serve as a source of comfort and stability. religious and traditional actors are frequently well positioned to respond and communicate information and teachings to their communities in times of crisis.3 with social distancing restricting public celebration of the sacraments, many churches began looking to innovate. some priests began offering drive-thru confessions.4 a parish in quezon city announced an online general absolution via live stream but cancelled the event upon discovering that the priest who absolves and the *by enakireru eric omo, phd, senior lecturer, department of jurisprudence and international law, college of law, western delta university, oghara, delta state. email: ericomo61@yahoo.com, tel: 07062041722; and *augustine u. amadasun, phd, department of jurisprudence and international law, college of law, western delta university, oghara, delta state, nigeria tel: 08064392946, 08055967273, email: augustineamadasun8@gmail.com 1<img alt=‘icon’ src=‘//upload.wikimedia.org/wikipedia/commons/thumb/2/28/p_religion_world.svg/31pxp_religion_world.svg.png’ decoding=‘async’ width=‘31’ height=‘28’ class=‘noviewer’ data-file-width=‘400’ data-fileheight=‘360’> religion portal, retrieved on 29, april 2021 2iframesrc=‘https://www.googletagmanager.com/ns.html? id=gtm-wfp5zn5’height=‘0’width=‘0’ style=‘display: none; visibility: hidden’></iframe> un chief calls on religious leaders to unite in the fight against covid-19 un secretarygeneral antónio guterres meets religious leaders at gurdwara kartapur sahib in punjab province in pakistan. retrieved on 29, april 2021 3 ibid 4img alt=‘icon’ src=‘//upload.wikimedia.org/wikipedia/commons/thumb/d/d6/who_rod.svg/12px who_rod.svg.png’ decoding=‘async’ width=‘12’ height=‘28’ class=‘noviewer’ data-file-width=‘107’ data-file-height=‘250’> medicine portal retrieved on 29, april 2020 https://en.m.wikipedia.org/wiki/2019%e2%80%9320_coronavirus_pandemic https://en.m.wikipedia.org/wiki/2019%e2%80%9320_coronavirus_pandemic https://en.m.wikipedia.org/wiki/sunday_schools https://en.m.wikipedia.org/wiki/sacraments https://en.m.wikipedia.org/wiki/drive-thru https://en.m.wikipedia.org/wiki/diocese_of_cubao https://en.m.wikipedia.org/wiki/general_absolution mailto:ericomo61@yahoo.com mailto:augustineamadasun8@gmail.com https://en.m.wikipedia.org/wiki/file:p_religion_world.svg https://en.m.wikipedia.org/wiki/file:p_religion_world.svg https://en.m.wikipedia.org/wiki/file:p_religion_world.svg https://en.m.wikipedia.org/wiki/portal:religion https://en.m.wikipedia.org/wiki/portal:medicine omo & amadasun: interrogating the enforcement of the covid-19 pandemic on religious liberty under international law 37 penitent people receiving absolution must be physically in the same place.5 similarly, the archdiocese of kansas city attempted to allow confessions to be heard via cell phone but ran into the same issue regarding absolution.6 archbishop leonard blair wrote in a memo to the u.s. bishops, ‘with regard to penance, it is clear that the sacrament is not to be celebrated via cell phone.’7 the diocese of springfield in massachusetts attempted to allow nurses to anoint patients while priests recite prayers for ‘extreme unction’ but this policy was quickly rescinded because anointing cannot be validly delegated.8 on the other hand, johann pock, the dean of the faculty of catholic theology at the university of vienna, wrote that if the pope could impart a ‘complete indulgence’ to the world via television, ‘why then can't the bishop… celebrate the eucharist for his entire diocese, with believers in front of their screens actively participating and making this not just a spiritual, but an actual communion with bread (and wine) at the table?9 by mid-march the maronite church in lebanon authorized the reception of the eucharist in the hand, a practice previously not permitted, in order to stem the spread of the virus. some parishes allowed for two lines of communicants: one for those who wished to receive traditionally on the tongue and those who wished to receive in the hand. this led to protests from traditional maronites, including an 8 march incident in an ajaltoun church where protesters shouted ‘we are the church’ in response to a priest requesting obedience to church requests.10 this is the time to remember the most vulnerable of the vulnerable around the world, people in war zones, refugee camps, slums and other areas least equipped to fight the virus. it is a call to renew faith in one another and draw strength from the good that is gathering in troubled times as communities of diverse faiths and ethical traditions unite to care for one another. according to the united nations secretary-general, the virus has ushered in what can be best described as ‘a strange, surreal world’. streets are silent, storefronts are shuttered and places of worship are empty in efforts to contain the spread of the pandemic. 2. impact on religious restriction the covid-19 pandemic has extensively and intensively impacted the christian association of nigeria (can) with the national, regional, and state coordinators calling for the total closures of religious worship centres and putting a hold on any gathering of faith based believers exceeding 20 members at any time in question, in compliance with government directives. at other times, many or few assemblies whose religious leaders failed to comply with such directives were arrested, detained and prosecuted on the bases of criminal breach. the coronavirus pandemic has impacted religion in various ways, including the cancellation of the worship services of various faiths, the closure of sunday schools, as well as the cancellation of pilgrimages surrounding observances and festivals.11 many churches, synagogues, mosques, and temples have offered worship through live stream amidst the pandemic.12 relief wings of religious organisations have dispatched disinfection supplies, powered air-purifying respirators, face shields, gloves, coronavirus nucleic acid detection reagents, ventilators, patient monitors, syringe pumps, infusion pumps, and food to affected areas.13 other churches have offered free covid-19 testing to the public.14 adherents of many religions have gathered together to pray for an end to the covid-19 pandemic, for those affected by it, as well as for wisdom for physicians and scientists to combat the disease.15 5 a b c d e f g h i burke, daniel (14 march 2020). ‘what churches, mosques and temples are doing to fight the spread of coronavirus’. cnn. archived from the original on 14 march 2020. retrieved 16 march 2020. 6 parke, caleb (13 march 2020). ‘churches cancel sunday service, move online amid coronavirus outbreak’. fox news. archived from the original on 15 march 2020. retrieved 16 march 2020. 7 doody, cameron (25 march 2020). ‘200 church, civil groups launch covid-19 sos for 42,000 refugees ‘trapped’ on greek islands ‘in horrific conditions’’. novena news. retrieved 5 april 2020. . 8 concerning covid-19 and the moravian church’. moravian church. 26 march 2020. archived from the original on 28 march 2020. retrieved 28 march 2020. 9 worship’. trinity christian reformed church » worship. archived from the original on 5 september 2016. retrieved 28 march 2020. 10 queen ready for move to windsor castle’. the gazette. retrieved 18 april 2020. 11pagán, jonathan warren (21 march 2020). ‘spiritual communion during the covid–19 pandemic’. anglican compass. archived from the original on 21 march 2020. retrieved 21 march 2020 12 ibid 13lamb, christopher; heneghan, tom; pongratz-lippitt, christa; luxmoore, jonathan; roberts, james (15 march 2020). ‘pope francis urges catholics to unite in spiritual communion’. the tablet. archived from the original on 21 march 2020. retrieved 21 march 2020 14lewis, mitchell (20 march 2020). ‘an act of spiritual communion’. wordpress. archived from the original on 21 march 2020. retrieved 21 march 2020. 15wenger, yvonne. ‘baltimore-based lutheran world relief preparing response to coronavirus in africa: 'this is a moment of unity'‘. the baltimore sun. archived from the original on 27 march 2020. retrieved 28 march 2020. https://en.m.wikipedia.org/wiki/penitent https://en.m.wikipedia.org/wiki/archdiocese_of_kansas_city https://en.m.wikipedia.org/wiki/archdiocese_of_kansas_city https://en.m.wikipedia.org/wiki/leonard_paul_blair https://en.m.wikipedia.org/wiki/diocese_of_springfield_in_massachusetts https://en.m.wikipedia.org/wiki/extreme_unction https://en.m.wikipedia.org/wiki/maronite_church https://en.m.wikipedia.org/wiki/lebanon https://en.m.wikipedia.org/wiki/ajaltoun https://en.m.wikipedia.org/wiki/2019%e2%80%9320_coronavirus_pandemic https://en.m.wikipedia.org/wiki/sunday_schools https://en.m.wikipedia.org/wiki/pilgrimage https://en.m.wikipedia.org/wiki/covid-19_testing https://en.m.wikipedia.org/wiki/impact_of_the_2019%e2%80%9320_coronavirus_pandemic_on_religion#cite_ref-burke2020_1-0 https://en.m.wikipedia.org/wiki/impact_of_the_2019%e2%80%9320_coronavirus_pandemic_on_religion#cite_ref-burke2020_1-1 https://en.m.wikipedia.org/wiki/impact_of_the_2019%e2%80%9320_coronavirus_pandemic_on_religion#cite_ref-burke2020_1-2 https://en.m.wikipedia.org/wiki/impact_of_the_2019%e2%80%9320_coronavirus_pandemic_on_religion#cite_ref-burke2020_1-3 https://en.m.wikipedia.org/wiki/impact_of_the_2019%e2%80%9320_coronavirus_pandemic_on_religion#cite_ref-burke2020_1-4 https://en.m.wikipedia.org/wiki/impact_of_the_2019%e2%80%9320_coronavirus_pandemic_on_religion#cite_ref-burke2020_1-5 https://en.m.wikipedia.org/wiki/impact_of_the_2019%e2%80%9320_coronavirus_pandemic_on_religion#cite_ref-burke2020_1-6 https://en.m.wikipedia.org/wiki/impact_of_the_2019%e2%80%9320_coronavirus_pandemic_on_religion#cite_ref-burke2020_1-7 https://en.m.wikipedia.org/wiki/impact_of_the_2019%e2%80%9320_coronavirus_pandemic_on_religion#cite_ref-burke2020_1-8 https://www.cnn.com/2020/03/14/world/churches-mosques-temples-coronavirus-spread/index.html https://www.cnn.com/2020/03/14/world/churches-mosques-temples-coronavirus-spread/index.html https://web.archive.org/web/20200314232611/https:/www.cnn.com/2020/03/14/world/churches-mosques-temples-coronavirus-spread/index.html https://www.foxnews.com/us/coronavirus-update-church-sunday-service-online https://en.m.wikipedia.org/wiki/fox_news https://web.archive.org/web/20200315105659/https:/www.foxnews.com/us/coronavirus-update-church-sunday-service-online https://novenanews.com/church-civil-groups-covid-19-refugees-greek-islands https://novenanews.com/church-civil-groups-covid-19-refugees-greek-islands https://www.moravian.org/2020/03/concerning-covid-19-preparedness/ https://en.m.wikipedia.org/wiki/moravian_church https://web.archive.org/web/20200328031803/https:/www.moravian.org/2020/03/concerning-covid-19-preparedness/ https://www.amestrinity.org/trinwp/worship/ https://web.archive.org/web/20160905225851/http:/www.amestrinity.org/trinwp/worship/ https://www.the-gazette.co.uk/news/national-news/18316136.queen-ready-move-windsor-castle/ https://anglicanpastor.com/spiritual-communion-during-the-covid-19-pandemic https://web.archive.org/web/20200321211542/https:/anglicanpastor.com/spiritual-communion-during-the-covid-19-pandemic/ https://www.thetablet.co.uk/news/12597/pope-francis-urges-catholics-to-unite-in-spiritual-communion https://en.m.wikipedia.org/wiki/the_tablet https://web.archive.org/web/20200321220330/https:/www.thetablet.co.uk/news/12597/pope-francis-urges-catholics-to-unite-in-spiritual-communion https://milewis.wordpress.com/2020/03/20/an-act-of-spiritual-communion/ https://web.archive.org/web/20200321225026/https:/milewis.wordpress.com/2020/03/20/an-act-of-spiritual-communion/ https://www.baltimoresun.com/coronavirus/bs-md-lutheran-world-relief-africa-20200326-6a55duj2l5b7dbh5t3pn7m7ele-story.html https://www.baltimoresun.com/coronavirus/bs-md-lutheran-world-relief-africa-20200326-6a55duj2l5b7dbh5t3pn7m7ele-story.html https://en.m.wikipedia.org/wiki/the_baltimore_sun https://web.archive.org/web/20200327211052/https:/www.baltimoresun.com/coronavirus/bs-md-lutheran-world-relief-africa-20200326-6a55duj2l5b7dbh5t3pn7m7ele-story.html african customary and religious law review (acarelar) 4 (2023) 38 response and impact according to gallup report by frank newport ‘the most dramatic result (in religion) has been the exceedingly quick shift of religious services from in-person to online worship.’ this decision was not by compulsion but on the mere acceptance of the fact regarding the health implication of the deathly pandemic. while for almost a hundred years, churches have used various communication methods to reach their audiences, such as radio, television and online media, gallup says that the halting of in-person worship ‘is one of the most significant sudden disruptions in the practice of religion in u.s. history.16 a pew research report from march 2020 reported a change in their religious habits due to the pandemic. more than half of respondents said that they have ‘prayed for an end to the spread of coronavirus,’ ‘attended religious services in person less often,’ and ‘watched religious services online or on tv instead of in person.17 time magazine reported that drive-in church services have achieved a great level of attendance in the covid-19 outbreak.18 as to whether the crisis had an effect on long-term personal religious life, 19% of americans said that their faith has strengthened and only 3% said that it got worse.19 food and medical assistance and social justice work world council of churches general secretary olav fykse tveit announced that, ‘this situation calls on our solidarity and accountability, mindfulness, care and wisdom for our signs of faith, hope and love’.20 amidst the 2019–20 coronavirus pandemic, some churches continue to operate their food pantries that are offering bags filled with meat and toilet paper rolls for needy families21 the national cathedral of the united states, which belongs to the episcopal church, donated over five-thousand surgical masks to hospitals of washington, d.c., which were in shortage during the 2019–20 coronavirus pandemic.22 other churches, such as the church of the highlands, an evangelical christian mega church, have offered free covid-19 tests in their parking lots.23 some chaplains, such as father benito rodríguez regueiro, have chosen to remain on call 24/7 for covid-19 patients.24 over 200 church and civil society organisations, including caritas and the jesuit refugee service, have called on the government of greece to restore access to asylum for refugees, especially the 42,000 who are ‘trapped’ and living ‘in horrific conditions’ in the greek islands.25 many episcopal and catholic dioceses in nigeria recommended older christians to stay at home rather than attending mass on sundays, which is usually required; many churches of all christian denominations have made church services available via radio, online live streaming or television while others have offered drive-in services in their church parking lots.26 some christians are using online apps, which contain prayers and daily devotionals, to remain engaged with their faith.27 how far can a government limit religious freedom in the name of fighting the coronavirus under international law? as the global pandemic continues, many national and local governments are grappling with this question. religious gatherings are important opportunities for people to practice and share their beliefs, but they are also sites for transmission of covid-19, endangering not only participants in these gatherings but everyone with whom they interact. crises require decisive government action, but governments often use times of crisis to encroach on individual freedoms or target minority groups long after the crisis has passed. article 18 of the 16‘attorney general william p. barr issues statement on religious practice and social distancing; department of justice files statement of interest in mississippi church case’. www.justice.gov. 14 april 2020. retrieved 17 april 2020. 17religion and the covid-19 virus in the u.s’. news.gallup.com. retrieved 21 april 2020. . 18gryboski, michael (26 march 2020). ‘national cathedral donates 5,000 respirator masks to dc hospitals’. www.christianpost.com. the christian post. archived from the original on 26 march 2020. retrieved 26 march 2020. 19doody, cameron (31 march 2020). ‘spanish chaplain on call 24/7 for coronavirus patients: ‘there are tears, yes, but great hope too’’. novena news. retrieved 5 april 2020 20wooden, cindy (17 march 2020). ‘public mass ban in italy leads to new focus on 'spiritual communion'‘. crux. archived from the original on 21 march 2020. retrieved 21 march 2020. 21parvini, sarah (17 april 2020). ‘ventura county faith leaders demand officials allow socially distant gatherings amid coronavirus shutdown’. los angeles times. retrieved 18 april 2020. 22williams, ryan p. (10 april 2020). ‘starting the resistance and civil disobedience...’ @rpwwilliams on twitter. retrieved 12 april 2020. 23 parke, caleb (23 march 2020). ‘in coronavirus fight, china hasn't stopped persecuting christians: watchdog’. fox news. archived from the original on 27 march 2020. retrieved 27 march 2020. 24 klett, leah marieann (21 march 2020). ‘china demolishes church, removes crosses as christians worship at home’. the christian post. archived from the original on 22 march 2020. retrieved 27 march 2020. 25 ‘in rare move, justice department takes church's side in 1st amendment suit’. time. retrieved 17 april 2020. 26 religionemailemailbiobiofollowfollow, sarah pulliam bailey closesarah pulliam baileyreporter covering (10 march 2020). ‘from ireland to boston, coronavirus shuts down st. patrick's day parades’. the washington post. archived from the original on 17 march 2020. retrieved 17 march 2020. 27 dias, elizabeth (15 march 2020). ‘a sunday without church: in crisis, a nation 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https://en.m.wikipedia.org/wiki/lord%27s_day https://en.m.wikipedia.org/wiki/lord%27s_day https://en.m.wikipedia.org/wiki/church_service https://en.m.wikipedia.org/wiki/daily_devotional https://www.justice.gov/opa/pr/attorney-general-william-p-barr-issues-statement-religious-practice-and-social-distancing-0 https://www.justice.gov/opa/pr/attorney-general-william-p-barr-issues-statement-religious-practice-and-social-distancing-0 https://news.gallup.com/opinion/polling-matters/307619/religion-covid-virus.aspx https://www.christianpost.com/news/national-cathedral-donates-5000-respirator-masks-to-dc-hospitals.html https://en.m.wikipedia.org/wiki/the_christian_post https://web.archive.org/web/20200326173514/https:/www.christianpost.com/news/national-cathedral-donates-5000-respirator-masks-to-dc-hospitals.html https://novenanews.com/spanish-chaplain-on-call-coronavirus-patients https://novenanews.com/spanish-chaplain-on-call-coronavirus-patients https://cruxnow.com/church-in-europe/2020/03/public-mass-ban-in-italy-leads-to-new-focus-on-spiritual-communion https://en.m.wikipedia.org/wiki/crux_(online_newspaper) https://web.archive.org/web/20200321220335/https:/cruxnow.com/church-in-europe/2020/03/public-mass-ban-in-italy-leads-to-new-focus-on-spiritual-communion/ https://www.latimes.com/california/story/2020-04-17/la-me-coronavirus-faith-leaders-ventura-county https://www.latimes.com/california/story/2020-04-17/la-me-coronavirus-faith-leaders-ventura-county https://en.m.wikipedia.org/wiki/los_angeles_times https://twitter.com/rpwwilliams/status/1248847823644135425 https://www.foxnews.com/world/coronavirus-china-update-christian-persecution-vom https://en.m.wikipedia.org/wiki/fox_news https://web.archive.org/web/20200327162510/https:/www.foxnews.com/world/coronavirus-china-update-christian-persecution-vom https://www.christianpost.com/news/china-demolishes-church-removes-crosses-as-christians-worship-at-home.html https://en.m.wikipedia.org/wiki/the_christian_post https://en.m.wikipedia.org/wiki/the_christian_post https://web.archive.org/web/20200322131223/https:/www.christianpost.com/news/china-demolishes-church-removes-crosses-as-christians-worship-at-home.html https://time.com/5820997/justice-department-church-1st-amendment/ https://www.washingtonpost.com/religion/2020/03/10/ireland-boston-coronavirus-shuts-down-st-patricks-day-parades/ https://en.m.wikipedia.org/wiki/the_washington_post https://web.archive.org/web/20200317103508/https:/www.washingtonpost.com/religion/2020/03/10/ireland-boston-coronavirus-shuts-down-st-patricks-day-parades/ https://www.nytimes.com/2020/03/15/us/churches-coronavirus-services.html https://en.m.wikipedia.org/wiki/the_new_york_times https://en.m.wikipedia.org/wiki/the_new_york_times https://web.archive.org/web/20200316213758/https:/www.nytimes.com/2020/03/15/us/churches-coronavirus-services.html omo & amadasun: interrogating the enforcement of the covid-19 pandemic on religious liberty under international law 39 international covenant on civil and political rights (iccpr) guarantees freedom of religion, but also allows governments to narrowly restrict religious freedom by law when necessary to protect a legitimate state interest, including public health. the siracusa principles on the limitation and derogation provisions in the iccpr explains that public health measures that limit rights must be specifically aimed at preventing disease or injury or providing care for the sick and injured28. given the fundamental nature of freedom of religion or belief, it is subject to fewer restrictions than other rights. only manifestations of this freedom can be limited, but never holding beliefs itself. unlike other rights, religious freedom cannot be derogated in times of public emergency, which means that governments must continue to balance this fundamental right even in efforts to combat the impact of the virus. while freedom of religion is not absolute, it also cannot be limited disproportionately, or in a way that discriminates against believers and non-believers or a certain religion or belief. public health emergencies should also not be used to target or stigmatize certain religious groups29. as stressed by un high commissioner for human rights michelle bachelet, ‘human dignity and rights need to be front and’ in the effort to contain and combat the spread of covid-19. un experts have also emphasized that restrictions must be based on public health concerns and not used ‘simply to quash dissent’ or target particular groups, minorities, or individuals.30 the world health organization (who) has noted that in the response to this pandemic, countries must strike a fine balance between protecting health, minimizing economic and social disruption, and respecting human rights’. to this aim, the who has provided guidelines and planning recommendations for mass gatherings to aid authorities in mitigating the public health risks of large events, including religious services. these tools urge public health authorities to conduct a detailed risk assessment to determine whether a mass gathering should be cancelled to mitigate the spread of covid-1931. compliance with international law not only protects human rights, but also should ultimately create more effective implementation of public health measures to slow covid-19. many governments have asked religious groups to voluntarily take measures that limit the spread of covid-19, including cancelling services, disinfecting houses of worship,32 and limiting the length of prayer times. these requests utilize a cooperative approach in which governments treat religious groups as partners rather than potential threats. as such, we expect wider implementation and stronger individual adherence to these public health measures.33 across the globe, religious authorities are limiting gatherings in response to covid-19. on march 5, saudi arabia closed the grand mosque in mecca for disinfecting, and reopened it nine days later with restrictions. the vatican suspended public masses on march 8 and has begun live streaming the pope’s general audience. the united arab emirates has prohibited children from attending church activities and limited friday prayer times in mosques to 15 minutes. tajikistan’s semi-official council of ulema issued a fatwa calling on clergy to close mosques and cancelled public celebrations of the nowruz holiday. in other countries, existing limitations on freedom of religion might be exacerbated during the response to covid-19.34 the iranian government has released 85,000 prisoners on furlough to prevent the spread of covid-19, but has reportedly placed prisoners who are part of the sufi religious minority in wards that are overcrowded, increasing their risk.35 and, although the south korean government’s response has generally drawn praise for balancing rights and public health, there are worrying signs that some local authorities are scapegoating a small religious sect known as the shincheonji church because some of its members were infected. 36 28american bar association|/content/aba-cms-dotorg/en/groups/crsj/events_cle/program-archive/covid-religious-freedom, retrieved on 29, april 2020 29gayle manchin is the vice chair of the united states commission on international religious freedom, appointed by senate minority leader chuck schumer. james w. carr is a commissioner of the united states commission on international religious freedom, appointed by house minority leader kevin mccarthy 30'come as you are in the family car.' drive-in church services are taking off during the coronavirus pandemic’. time. 31‘most americans say coronavirus outbreak has impacted their lives | pew research center’. pewsocialtrends.org. 30 march 2020. retrieved 21 april 2020. 32 stanglin, doug (20 march 2020). ‘'how we can show love for the most vulnerable': churches cancel in-person easter services’. usa today. archived from the original on 28 march 2020. retrieved 28 march 2020. presiding bishop michael curry of the episcopal church said in a statement this week that suspending in-person public worship ‘is generally the most prudent course of action at this time, even during holy week and on easter day,’ which is april 12. 33 ibid 34 ‘westerville church offering 'drive in' service’. wbns-tv. 22 march 2020. archived from the original on 22 march 2020. retrieved 22 march 2020. 35 ‘church news’. bedford gazette. 27 march 2020. archived from the original on 28 march 2020. retrieved 28 march 2020. 36 farzan, antonia noori (27 march 2020). ‘because coronavirus has led to enough sacrifices, catholic bishops say it's okay to eat meat on fridays during lent’. the washington post. archived from the original on 28 march 2020. retrieved 28 march 2020. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx https://undocs.org/en/e/cn.4/1985/4 https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/download.aspx?symbolno=ccpr%2fc%2f21%2frev.1%2fadd.4&lang=en https://www.ohchr.org/en/issues/freedomreligion/pages/istandardsv1.aspx https://www.ohchr.org/en/newsevents/pages/displaynews.aspx?newsid=25668&langid=e https://www.ohchr.org/en/newsevents/pages/displaynews.aspx?newsid=25722&langid=e https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020 https://www.who.int/publications-detail/public-health-for-mass-gatherings-key-considerations https://www.who.int/publications-detail/key-planning-recommendations-for-mass-gatherings-in-the-context-of-the-current-covid-19-outbreak https://www.who.int/publications-detail/key-planning-recommendations-for-mass-gatherings-in-the-context-of-the-current-covid-19-outbreak https://www.arabnews.com/node/1639731/saudi-arabia https://cruxnow.com/church-in-europe/2020/03/as-italys-coronavirus-fears-spike-all-public-masses-suspended-until-april-3/ https://www.khaleejtimes.com/coronavirus-outbreak/coronavirus-in-uae-friday-prayers-at-mosques-restricted-to-15-minutes-gatherings-at-churches-suspended https://eurasianet.org/tajikistan-authorities-spark-covid-19-panic-by-urging-calm http://www.interfax-religion.com/?act=news&div=15507 https://www.scmp.com/week-asia/health-environment/article/3075164/south-koreas-coronavirus-response-opposite-china-and?utm_medium=email&utm_source=mailchimp&utm_campaign=enlz-scmp_international&utm_content=20200316&mcuid=46bc4c6c45&mccampaignid=625d0bc6f0&mcaccountid=3775521f5f542047246d9c827&tc=41 https://www.cesnur.org/2020/shincheonji-and-covid.htm https://www.uscirf.gov/about-uscirf/commissioners https://www.uscirf.gov/about-uscirf/commissioners https://time.com/5811387/drive-in-church-coronavirus/ https://www.pewsocialtrends.org/2020/03/30/most-americans-say-coronavirus-outbreak-has-impacted-their-lives https://www.usatoday.com/story/news/nation/2020/03/20/coronavirus-church-services-how-outbreak-affecting-easter-services/2864084001/ https://www.usatoday.com/story/news/nation/2020/03/20/coronavirus-church-services-how-outbreak-affecting-easter-services/2864084001/ https://en.m.wikipedia.org/wiki/usa_today https://web.archive.org/web/20200328024251/https:/www.usatoday.com/story/news/nation/2020/03/20/coronavirus-church-services-how-outbreak-affecting-easter-services/2864084001/ https://www.10tv.com/article/westerville-church-offering-drive-service-2020-mar https://en.m.wikipedia.org/wiki/wbns-tv https://web.archive.org/web/20200322165944/https:/www.10tv.com/article/westerville-church-offering-drive-service-2020-mar https://www.bedfordgazette.com/news/religion/church-news/article_779f47f1-4ff4-5e50-93da-bea55ec77262.html https://en.m.wikipedia.org/wiki/bedford_gazette https://web.archive.org/web/20200328031759/https:/www.bedfordgazette.com/news/religion/church-news/article_779f47f1-4ff4-5e50-93da-bea55ec77262.html https://www.washingtonpost.com/nation/2020/03/27/coronavirus-lent-meat https://www.washingtonpost.com/nation/2020/03/27/coronavirus-lent-meat https://web.archive.org/web/20200328023026/https:/www.washingtonpost.com/nation/2020/03/27/coronavirus-lent-meat/ african customary and religious law review (acarelar) 4 (2023) 40 religious freedom must be balanced with public health concerns, even as the covid-19 pandemic continues.37 we cannot allow fear to override human rights principles, including the unique protections afforded to the freedom of religion or belief. instead, we must be vigilant that governments carefully balance this right and enact neutral responses that do not unduly target religious communities. we at uscirf will continue to monitor government responses to ensure compliance with international human rights standards and use our voice to sound the alarm when public health is used as a mask for persecuting religious communities. we urge others to be vigilant in ensuring that our most sacred right is not forsaken, even in this time of crisis 3. palliative measures and social opportunities many countries have adopted different approaches as to palliative and stimulus measures while others have gone to the extent of enacting legislations to redress the impact covid-19, providing emergency funding primarily for federal agencies to respond to the outbreak, in america two statutes were enacted to provide relief but not so in nigeria where palliatives were handed to political crannies for individual relatives instead of the collective good of the societies.38 the american government in response to the pandemic enacted the laws described below apply to nonprofit organizations, and several members of congress have said they intended churches to be included alongside all other nonprofits. neither the statutes nor any implementing regulations to date expressly cover or exclude churches.39 both churches and other employers should be aware of new requirements they must meet in order to comply and potentially utilize these new federal programs for the benefit of their employees. families first coronavirus response act the families first coronavirus response act (ffcra), signed into law on march 18, 2020, extends coverage of the family medical leave act in two significant ways. effective from april 1, 2020, through the end of 2020, ffcra temporarily requires employers engaged in commerce, including those with fewer than 50 employees, to offer paid family and medical leave and paid sick leave for all employees for specified coronavirus-related reasons. these reasons include inability to work or telework because they are experiencing covid-19 symptoms, caring for someone who is ill with covid-19, or caring for a child whose school or daycare is closed due to covid-19. ‘engaged in commerce’ is a broad standard that could include many churches. even if a church operates under a more stringent state-law standard or voluntarily provides benefits similar to fmla, this law could create a new mandate for churches. this new government requirement on employers is intended to be refunded by a payroll tax credit against the amounts due from the employer for paid fmla and paid sick leave. additional information can be found from the department of labor. the ucc’s office of general counsel prepared an initial analysis and generously shared it online. the ucc memo is here, and a simplified flowchart is here. due to the particular way that clergy pay is treated under the law, particularly in the internal revenue code, some analysis suggests that a minister’s compensation would not be ‘qualified wages’ under the ffcra for purposes of the tax credit to churches, though a minister may be able to claim a credit under the self-employment provision of the ffcra. coronavirus aid, relief and economic security act (cares act) the most recent piece of legislation, signed on march 27, 2020, is the coronavirus aid, relief, and economic security act (cares act). of particular interest in this $2 trillion relief bill is the $349 billion paycheck protection program, a temporary expansion of a small business loan program to help businesses and nonprofit organizations with 500 or fewer employees40 government-backed loans of up to $10 million are available to cover expenses such as payroll, mortgage payments, rent and utilities for up to two months. these loans will be forgiven, in whole or in part, for employers who keep their employees on the payroll or rehire by june 30.41 payroll expenses must be at least 75% of the loan that is forgiven. the small business administration has resources, including a sample application form. the treasury department has created a short overview of the paycheck protection program as well as this information sheet for borrowers. of particular importance will be forthcoming guidance and regulations that should clarify how eligible nonprofit organizations will be treated. 37 sheva, arutz (15 february 2020). ‘thousands to pray at western wall for end to covid-19 epidemic’. israel national news. archived from the original on 18 march 2020. retrieved 17 march 2020. 38 solovy, alden (27 february 2020). ‘coronavirus: a prayer for medical scientists’. union for reform judaism. archived from the original on 18 march 2020. retrieved 17 march 2021. 39 ‘coronavirus disease 2019 (covid-19)’. evangelical lutheran church in america. 2019. archived from the original on 18 march 2020. retrieved 17 march 2021. 40 (section 1102) coronavirus aid, relief, and economic security act (cares act). 41 (section 1106) https://www.congress.gov/bill/116th-congress/house-bill/6201/text?q=%7b%22search%22%3a%5b%22hr+6201%22%5d%7d&r=1&s=1 https://www.dol.gov/sites/dolgov/files/whd/posters/ffcra_poster_wh1422_non-federal.pdf?mkt_tok=eyjpijoiwlrrmu4ystrorgn3tnprecisinqioijwexvbaur1v1zibwqrb2dxwwrvbxzcl3c1uxlzejngbytxuu00z0plv0htugrzxc9lb1wvd05fugrtwtjod0zpzkxnbev1nji1qvjzbuttbenzu3hiwkdtng1qs09zcdyycgh3azzodstnnjfnotlime5zwstytfvkzhllvtbbruv4qyj9 https://www.dol.gov/agencies/whd/pandemic https://d3n8a8pro7vhmx.cloudfront.net/unitedchurchofchrist/pages/24945/attachments/original/1585588014/3.30.2020_updated_families_first_coronavirus_response_act.pdf?1585588014 https://d3n8a8pro7vhmx.cloudfront.net/unitedchurchofchrist/pages/24945/attachments/original/1585588010/3.30.2020_ffcra_summary.pdf?1585588010 https://www.churchlawandtax.com/web/2020/march/reimbursing-churches-for-mandated-sick-leave-because-of-cov.html https://www.congress.gov/bill/116th-congress/house-bill/748/text https://www.congress.gov/bill/116th-congress/house-bill/748/text https://home.treasury.gov/system/files/136/ppp%20--%20overview.pdf https://www.sba.gov/page/coronavirus-covid-19-small-business-guidance-loan-resources https://www.sba.gov/sites/default/files/2020-03/borrower%20paycheck%20protection%20program%20application_0.pdf https://home.treasury.gov/policy-issues/top-priorities/cares-act/assistance-for-small-businesses https://home.treasury.gov/system/files/136/ppp%20--%20overview.pdf https://home.treasury.gov/system/files/136/ppp%20borrower%20information%20fact%20sheet.pdf http://www.israelnationalnews.com/news/news.aspx/276027 https://web.archive.org/web/20200318185306/http:/www.israelnationalnews.com/news/news.aspx/276027 https://reformjudaism.org/blog/2020/02/27/coronavirus-prayer-medical-scientists https://en.m.wikipedia.org/wiki/union_for_reform_judaism https://web.archive.org/web/20200318165546/https:/reformjudaism.org/blog/2020/02/27/coronavirus-prayer-medical-scientists https://www.elca.org/our-work/relief-and-development/lutheran-disaster-response/our-impact/coronavirus https://en.m.wikipedia.org/wiki/evangelical_lutheran_church_in_america https://web.archive.org/web/20200318185309/https:/www.elca.org/our-work/relief-and-development/lutheran-disaster-response/our-impact/coronavirus https://www.congress.gov/bill/116th-congress/house-bill/748/text omo & amadasun: interrogating the enforcement of the covid-19 pandemic on religious liberty under international law 41 constitutional and practical considerations while there is no precedent for these covid-19 measures, and there is no certainty about how they will be applied in practice, many of the specific provisions seem to be within constitutional boundaries governing the relationship between church and state.42 a payroll tax credit to cover a new, quickly implemented government mandate of paid sick leave, for example, does not raise the same concerns as general economic assistance to a church. likewise, a government-backed loan to a religious organization that is provided on the same terms as loans to other non-religious entities would not likely raise constitutional concerns. even if they include churches, these programs are likely to be held constitutional and seem unlikely to broadly undercut religious exemptions in other contexts or to create excessive entanglement between government and religion. that said, any ruling on these or other constitutional questions could be many months or even years away.43 loan forgiveness for a church’s ministerial payroll and mortgage expenses perhaps comes closest to the traditional concerns of taxpayers paying for clergy and building houses of worship. in light of recent changes in case law and on the u.s. supreme court, as well as the speed with which this legislation was passed, it is not surprising that such issues have not been addressed. until very recently, the ‘no aid to churches’ principle was firmly ingrained in federal constitutional law and reflected more explicitly in the religious liberty provisions of many state constitutions. after the supreme court’s 2017 decision in trinity lutheran v. comer, the constitutional boundary on funding has become less clear. the court has shifted in personnel and perspective toward a greater acceptance of neutral funding for religious institutions, including churches, at least where there is no intended religious purpose or effect.44 with the information available now, we think it unlikely that the federal assistance provided in the paycheck protection program is an unconstitutional establishment of religion. the purpose of the program is to maintain employment during an economic and health crisis in the country, not to advance or prefer religion. nor are churches preferred in any way over other nonprofits. the assistance is not provided through a government grant program, but rather through bank loans that are forgivable in whole or in part. still, depending on its specific terms and application, a general loan forgiveness program may raise unintended practical problems for a church. qualifying for the payroll tax credit or government-backed loan will inevitably require some form of certification regarding the church’s financial condition and some accounting for the proper use of taxpayer funds. other government requirements to ensure accountability may conflict with a church’s mission. for example, the application includes two pages of boilerplate language that applicants agree to, including references to requirements that prohibit religious discrimination in how the applicant provides goods, services and accommodations. churches that apply for these programs should not allow this short-term relief to distract from longer-term assessments, planning and necessary reforms, occasioned by the crisis. voluntary contributions to support each church’s ongoing operations and mission will continue to provide the vast majority of support for houses of worship. in the cares act, congress increased charitable giving incentives for 2020, creating a new deduction of up to $300 for all taxpayers, including those who take the standard deduction rather than itemizing deductions. for the minority of taxpayers who itemize their deductions, they will be able to deduct contributions up to 100% of their adjusted gross income. we pray that individuals will continue to be as generous as they are able in supporting their houses of worship during this time of public health and economic crisis and that churches, synagogues, mosques and other houses of worship will continue to support their communities in time of need. though uncertainties abound, we trust churches to make thoughtful decisions and we hope this information helps them navigate through these challenging days. 4. challenges to enforcement of state of emergency in sum, international human rights law has very little to say about defining crisis situations, and only limited restrictions on the means. at present, this means national governments are able to unilaterally decide whether covid-19 constitutes a threat to the nation requiring emergency government, and, once they have, international human rights law permits limiting any rights except for those deemed non-derogable.45 countries that have not declared states of emergency to handle the covid-19 pandemic can still legally limit individual rights under 42amazon adds jobs and megachurch helps with covid-19 testing’. religious freedom & business foundation. 19 march 2020. archived from the original on 20 march 2020. retrieved 19 march 2020. 43holly hollman is general counsel of bjc. she and bjc executive director amanda tyler also discussed this on the april 2, 2020, episode of the respecting religion podcast series. retrieved on 29/04/2021 44wcc takes strong measures to protect from coronavirus’. world council of churches. 13 march 2020. retrieved 16 march 2021. 45emmons, cassandra: international human rights law and covid-19 states of emergency, verfblog, 2020/4/25, https://verfassungsblog.de/international-human-rights-law-and-covid-19-states-of-emergency, retreived on the 25 april, 2020 https://bjconline.org/trinitylutheran https://religiousfreedomandbusiness.org/2/post/2020/03/amazon-adds-jobs-and-megachurch-helps-with-covid-19-testing.html https://web.archive.org/web/20200320115336/https:/religiousfreedomandbusiness.org/2/post/2020/03/amazon-adds-jobs-and-megachurch-helps-with-covid-19-testing.html https://bjconline.org/k-hollyn-hollman https://bjconline.org/ep-07-cares-act-and-houses-of-worship/ https://bjconline.org/ep-07-cares-act-and-houses-of-worship/ https://bjconline.org/respectingreligion/ https://www.oikoumene.org/en/press-centre/news/wcc-takes-strong-measures-to-protect-from-coronavirus https://en.m.wikipedia.org/wiki/world_council_of_churches https://verfassungsblog.de/international-human-rights-law-and-covid-19-states-of-emergency african customary and religious law review (acarelar) 4 (2023) 42 international human rights law. the esc permits restrictions on any rights for public health.46 unlike derogation clauses, these limitations are not explicitly time constrained. simultaneously, there is an impetus in some of these treaties to take extra measures to protect public health. a counterpart to the iccpr, the international covenant of economic, social, and cultural rights, specifically mandates signatory governments protect the public from epidemic diseases47 as does the esc48 the achpr also requires signatories ‘protect the health of their people49‘ this tension introduces a unique problem: in an effort to protect health, governments could theoretically permanently suspend some international-recognized human rights. combining these preemptive commitments and permissive conditions creates additional opportunities for governments to combat covid-19 without declaring an emergency. it also invites abuse. together, this means all government responses to covid-19 should be closely monitored for proportionality, necessity, and retraction of measures once the crisis is under control – not only the emergency decrees. enforcement an emergency’s legitimacy and the proportionality of restrictions can be challenged two ways at the international level: international courts and active monitoring. violations under the iccpr and echr can be brought to the respective courts by individual claimants. an optional protocol to the iccpr, currently ratified by 116 states and signed by an additional three, grants individuals in any signatory state the right to address the human rights committee (also established under the iccpr) about violations of their rights under the iccpr. however, these individuals need to show they have exhausted all domestic remedies before their challenge will be reviewed by the committee, and, as it is not a court, the committee’s response options are limited. the european court of human rights also can be directly addressed by individuals who have exhausted domestic remedies, though only since 199850 the european court of human rights has historically been asked to judge whether a given situation constituted a threat to the nation. the court has confirmed states of emergency were warranted.51 the american court of human rights only hears cases brought to the inter-american commission on human rights first; no individual has standing before the court except through the commission. state parties to the conventions do have standing before both courts and the committee. thus, individual countries could file complaints of another country’s state of emergency violating the convention52, which they said justified extrajudicial deprivation of liberty. the problem with these juridical approaches boils down to expediency. given that domestic remedies have to be exhausted under the echr and iccpr and the lengths of time accused governments have to respond to either court or committee, this option hardly rises to the challenge of addressing abuses of rights under states of emergency. even relaxing the domestic remedies requirement would not meaningfully shorten the process. alternatively, monitoring is the most common method for international bodies to enforce human rights. compliance with the iccpr is monitored annually by the human rights committee, as the achr is monitored by the inter-american commission on human rights. human rights within the council of europe’s member states are monitored by the commissioner for human rights, the secretary general, and a variety of other entities. most monitoring practices are determined within these bodies and the wider organization, but some non-governmental actors have sought to contribute to these discussions. for instance, in 1986, the international law association’s committee on enforcement of human rights produced a framework for critically evaluating actions taken under the guise of states of emergency called the queensland guidelines for bodies monitoring respect for human rights during states of emergency; a subsequent committee is currently assessing this very topic. while monitors can outpace judicial actors, they have very few punitive tools if a serious violation is found. the modus operandi for monitors is to call attention to a problem and ‘name and shame’ the actors. this response might raise more alarm bells, but cannot directly halt any ongoing abuse. 46(article g (1)). the iccpr, achr, achr, and african charter on human and people’s rights (‘achpr‘) permit the following restrictions for public health protection, the right to manifest or practice one’s religion (iccpr article 18(3), achr article 12(3), echr article 9(2)), respect for private and family life (echr article 8(2)), freedom of movement (iccpr article 12(3), achr article 22(3), echr protocol 4, article 2(3), achpr article 12(2)), freedom of assembly (iccpr article 21, achr article 15, echr article 11(2), achpr article 11), freedom of association (iccpr article 22(2), achr article 16(2), echr article 11(2)), and freedom of expression (iccpr article 19(3b), achr article 13(2b), echr article 10(2)). 47 (article 12(2) c), 48 (article 11(3)). 49 (article 16(21)). 50 (protocol 11, articles 34-35). 51for example, in lawless v. ireland (1961), brannigan and mcbride v. the united kingdom (1993), and aksoy v. turkey (1996). 52for example, in ireland v. the united kingdom (1978), the european court of human rights confirmed the presence of an emergency under article 15 of the echr https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx https://www.echr.coe.int/documents/fs_derogation_eng.pdf https://www.ohchr.org/en/hrbodies/ccpr/pages/ccprintro.aspx http://www.oas.org/en/iachr/mandate/what.asp https://www.coe.int/en/web/commissioner/home https://www.ejiltalk.org/supervision-of-derogations-in-the-wake-of-covid-19-a-litmus-test-for-the-secretary-general-of-the-council-of-europe/ https://www.coe.int/en/web/portal/human-rights https://www.ila-hq.org/index.php/committees https://www.achpr.org/public/document/file/english/banjul_charter.pdf https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57506%22]} omo & amadasun: interrogating the enforcement of the covid-19 pandemic on religious liberty under international law 43 international law in public health emergencies one potential change is conceptual. each time a new threat emerges, the definition of an ‘emergency’ irrevocably stretches, as was observed post 9/11. we might, therefore, see public health pandemics included as legitimate grounds for derogations under states of emergency. public health derogations would, importantly, then become subject to the proportionality criterion and be expressly temporary. however, since states can already legally limit some rights in these cases, this change might invite more abuse rather than provide necessary flexibility to address crises. we should only advocate this conceptual stretching if there are indeed other rights besides those listed in section 2 that need to be derogable during pandemics in the interest of public welfare. instead of conceptual rethinking, we can reconsider enforcement. unilateral or multilateral economic or political sanctions on governments that are abusing their states of emergency would certainly get people’s attention. these measures are sometimes effective in non-emergent situations. however, sanctions can hardly be justified nor would they likely be complied with during a true public health pandemic – especially one like covid-19, which has catalyzed one of the largest global economic recessions in modern history. this approach would quickly instigate long-term public backlash as people continue to suffer. 5. conclusion and recommendations this article concludes that rather than coercion, improved collaboration is a viable answer. here we should pause before reinventing the wheel. we already have an international body that focuses explicitly on combatting international health emergencies through coordination and collaboration: the world health organization. at present, the who is funded by a combination of assessed and voluntary contributions. voluntary contributions are typically earmarked for specific projects, but these preconditions could feasibly be loosened during pandemics. greater oversight and investment during non-pandemic times can also promise a better reaction to the next crisis. the who’s work could be supplemented – though should not be duplicated – by regional bodies by expanding inter-agency relationships. overhauling and improving an existing body is preferred to starting again from nothing. perhaps unsatisfactorily, this is not an immediate solution to covid-19, but you can’t put out the fire from inside the house. in the aftermath of this crisis, real institutional reform will be necessary – and may actually be possible. religious leaders have a particularly important role to play in championing attention to and inclusion of, vulnerable populations including minorities, migrants, refugees, internally displaced persons, indigenous peoples, prisons, people with disabilities, and members of other marginalized groups, by creating supportive environments; advocating for their rights and access to diagnosis, treatment. and vaccines; sharing evidence-based accurate information; and publicly standing against statements and acts that encourage violence and human rights violations against people. by drawing on language within their own faith tradition, religious leaders can promote positive messages that affirm the dignity of all people, the need to protect and care of the vulnerable, and inspire hope and resilience in those affected by, or vulnerable to, covid-19. on the practical side, faith-based organizations can work with health and development agencies to identify mechanisms to increase access to information and services for vulnerable communities, including those that are provided by faith-based organizations themselves. moreover, most of these faith traditions serve all people in need, without regard to national or ethnic origin, race, sex, or religious affiliation, and are motivated by universal values and ethical principles of ‘do no harm,’ solidarity’, and the ‘golden rule’. various global religious and inter-religious groups have issued guidance, advisory notes, and statements to support the actions and role of religious leaders, faith-based organizations. and faith communities during the covid-19 pandemic. many of those same groups have contributed to this guidance, through a common acknowledgement that covid-19 is a global pandemic, affecting all races, ethnicities, and geographic regions that demands a global response. interfaith collaboration between both majority and minority faiths is crucial, particularly through the sharing of knowledge, resources, and best practices where possible. these are unsettling times; prayer and moral support are critical to the wellbeing of the believer. we should all encourage social unity through a common purpose. we should seek our neighbor to share resources and amplify our common efforts as human beings regardless of lines of division in the past. consider partnering with other community or faith-organizations if you do not have access to technology. the following recommendations for religious and traditional leaders are developed to mitigate community vulnerability and increase resilience in combating the deathly virus. communicate timely information countries around the world are enacting strict measures to reduce the probability of an individual contracting the disease or spreading it to others. disinformation and rumors related to spead of the virus and preventative measures can be harmful if followed by members of any community. as such, community leaders should maintain a viable communication line with government authorities to ensure they have accurate information regarding the pandemic and preventative measures. moreover, they should encourage their community to listen to the safety guidelines promoted by their respective governments and the world health organization (who) to ensure the safety and well-being of everyone. religious leaders and communities can maintain constant communication via online platforms, such as facebook and email. https://pages.eiu.com/april20-q2globalforecast2020_registration-page.html african customary and religious law review (acarelar) 4 (2023) 44 engage with youth global leaders have called for social distancing. as such, we must use new methods to support our community members and maintain lines of communication. youth have been at the forefront as users of social media and technology. as modern technology is still a recent development, religious and traditional leaders may not have a concrete understanding on how to use technological platforms to communicate with a wide audience. in addition, messages developed and communicated by young people are more likely to resonate with their peers. therefore, communities and leaders should seek to actively partner with youth in developing messages, assisting with the utilization of technology and social media as a connective communication mechanism during this period of social distancing. young women and men of faith play an important role in connecting with their peers and communities at large. promote unity and empathy in times of crisis the covid-19 pandemic has resulted in the spread of xenophobic and discriminatory attacks towards specific groups and communities. religious and community leaders should promote messages of unity and discuss with community members the importance of preventing the social stigma of people and groups. encourage community members to show empathy with others and understand the virus itself. ensure all messaging is thoughtful and intentional. guide your community on safe religious practices as we are practicing social distancing, communities should call on religious leaders and actors to re-examine religious rituals and practices in order to minimize risks of transmission of the virus. moreover, hygiene is emphasized in every faith; hence, religious leaders should utilize its teachings to educate the community on the importance of sanitation and hygiene. the world health organization (who) emphasizes the importance of hygiene, such as frequently washing hands with warm water and soap, to help prevent the spread of the virus. support your neighbour religious teachings encourage us to be kind and supportive of our neighbors. while practicing social distancing, religious organizations, big or small, can provide resources to help the community, especially the most vulnerable. work to ensure that children, immuno-comprised, and the elderly have access to proper nutrition, healthcare and necessary medication. encourage those at lower risk to help with grocery shopping and picking up medicines and supplies for elderly and immune-compromised community members. social distancing can still be maintained by leaving supplies at entryways for those in need. continue to serve the community above all else, churches, mosques synagogues, temples and other sacred spaces, must continue to serve the community. prayer services and rituals are important for people to connect with their faith. maintaining a modified routine creates a needed sense of continuation and stability in face of many changes in our ordinary life. faith is an important support and coping mechanism, especially in a time of crisis and uncertainty. while public worship sessions are temporarily discouraged, religious institutions should seek to find new ways of providing their services. this can be done by utilizing technology, such as facebook or youtube, to live-stream prayer services. radio is also an efficient way of reaching out to the community and sharing vital information to wide community audience. https://www.who.int/emergencies/diseases/novel-coronavirus-2019/advice-for-public olomojobi & yerima: religious pluralism and the interaction of the yorùbá legal system in nigeria 31 | p a g e religious pluralism and the interaction of the yorùbá legal system in nigeria* abstract the great influence that religion has on law has been a source of argument for many schools of thought. the truth is that no matter how hard one tries to separate law from morality, there is still a moral content within the law. what determines the morals of a society or community is dependent on the society’s religions, customs, traditions and beliefs. hence, at the core of its being the legal system of a society is based on the moral value system of the society in which it exists. this article therefore attempts to bring these concepts together by examining the yorùbá religion, its customs and traditions and juxtaposing them alongside the features of the contemporary legal system in nigeria. the imperial influence on the nigerian culture and laws has affected the very core of this nation, mixing with it and birthing a hybridized counterfeit of both cultures. it would seem that the presence of the english law in nigeria creates a conflict as to which law should apply to a citizen of nigerian. a crucial question to be asked is why laws of a foreign land are accepted without question, but the laws of the land are forgotten and rejected. keywords: religious pluralism, yoruba legal system, nigeria, interaction 1. introduction the quest to find a universally accepted definition of law is one that has gone on for years. its ability to permeate different aspects of societal living is indicative of its fluid nature. hence law cuts across different societal institutions such as, religion, culture, and economics amongst others. religion so far has been one of the most important societal institutions to man, it gives man a sense of belonging by tying his beliefs to a god or gods who are interested in his prosperity and success. according to edward b. tylor, religion is the belief in spiritual beings, which has to do with man’s belief in other-worldly beings who he believes has control over his life and its content.1 religion is a system of faith and beliefs; worship, that usually involves having faith in a supreme force.2 usually religions have a codified set of rules and conduct in written form called scripture. however, african traditional religions do not write down their own doctrines, which has led to the perception that they are not religions beliefs but rather singular norms held sacred by the people. the various nigerian traditional religions each have their own beliefs, sentiments and gods; the yorùbás believe in the almighty èledumare, as the supreme god over the universe who sent oduduwa to the world, the ibos believe in amadioha.3 each ethnic group in nigeria possesses a unique blend of customs and religious beliefs. religion forms the core of the society as it holds its religious values in high esteem. however, it is readily observed in contemporary nigerian society is that most of its culture are withering away. since the dawn of colonialism, nigeria has been desolate in terms of the essence of its cultural and spiritual practices. thus, it is not surprising that in the case of eshugbayi v government of nigeria4, the revered lord atkins describes the customs and traditions of the nigerian people as barbarous. in this context, nnaemekaagu jsc described this pathetic state of affairs perfectly when he said that the customary laws of the nigerian people are still bogged down by this annoying vestige of colonialism. he stated that our own customs were being treated like foreign laws by our own people, in our own country.5 the yorùbá people of the nigerian society are probably the most popularly known tribe as well as the ones most concerned with the preservation of their norms and customs. the yorùbás have an adage that says: ‘ṣaaju ki a to mọ íbíti a nlo, a gbọdọ mọ íbí ti a ti nbo’ ( ‘before we know where we are going, we must now where we come from).’the religious tenets of the yorùbá society and the relevancy of its customs and traditions, and its role in maintaining law and order, in this modern age will be analysed further in this article. . 2. yorùbá mysticism the thought system of a people mirrors their social organisation, political structure and their construction of reality.6 it is the desire for the yorùbá to understand the world around them about myths and legends that explains both natural and unnatural phenomena. these myths and legends created gods what is termed as ‘òrìṣà.’7the building block for all myths and legends within the yorùbá society is within its creation. the yorùbá people believe that before the world was created, the universe was made up of only two elements; the sky and water. two gods ruled over these elements – olokun was the water god and olorun was the sky god. olorun had two sons; odùduwa and ọ̀batala. ọ̀batala who was the youngest asked his father if he could create a new realm. olorun agreed and so the world was made. ọ̀batala first sought advice from the god of prophecy; ọ̀rúnmìlà,8 who informed him that he would require a gold chain long enough to reach below that is the eternal abyss where the world would be found. ọ̀batala possessed a snail shell filled with sand, a black cat, a white hen and a palm nut, all of *by yinka olomojobi, llm (liverpool), phd (lancaster) bl, fcimc, professor of law, department of jurisprudence and public law, babcock university, school of law & security studies, iperu-remo, ogun state, nigeria. email address: olomojobiy@babcock.edu.ng. tel: ++234-8100418553; and *khadijah kudirat yerima, llb (hons), llm (babcock university), lecturer, babcock university, department of jurisprudence and public law, babcock university, school of law and security studies, iperu-remo, ogun state, nigeria. email: khadijahkyerima@gmail.com 1william h. swatos, tylor, edward b, encyclopaedia of religion and society (2021) available at <https://hirr.hartsem.edu/ency/tylor.htm> accessed on the 21st january 2020. 2 chris c. wigwe, jurisprudence and legal theory, (ghana: readwide publishers, 2011) 109. 3 ibid. 4 [1913] a.c. 662 at 673 5 ugo v. obiekwe, [1989] 1 n.w.l.r., 566 at 583 – 584. 6 wande abimbola, ifá will mend our broken world, (usa: aim books, 1997) 93. 7toyin falola and akintunde akinyemi, encyclopedia of the yoruba, (usa: indiana university press, 2016) 6 8ọ̀rúnmìlà is the god of wisdom, he was said to hold all of olodùmare’s thoughts and wisdom and so it was pertinent to ask him for advice before making any decision. https://www.jstor.org/stable/1384378 https://www.jstor.org/stable/1384378 mailto:olomojobiy@babcock.edu.ng https://hirr.hartsem.edu/ency/tylor.htm african customary and religious law review (acarelar) 3 (2022) 32 | p a g e which he was to carry in a bag. ọ̀batala acquired all these materials and began his descent to earth. he first hung the chain from a corner of the sky and climbed down. unfortunately, he reached the end of the chain and realised that it was not long enough. ọ̀rúnmìlà then instructed him from above to pour the sand from the snail shell out and release the white hen to scatter the sand. ọ̀rúnmìlà explained that anywhere the sand landed, dry land would form. the larger piles of sand became mountains and hills and the smaller piles became valleys. ọ̀batala then dropped from the chain and where he landed he called ife.9 the dry land had expanded greatly, so he dug a hole and planted the palm nut, and it grew immediately. the mature tree released more seeds into the ground and more trees grew from them, the process continued till the world was filled with green foliage. ọ̀batala then dwelt there with the black cat as company. soon ọ̀batala grew bored and began to explore the realm he created and discovered palm wine. he got drunk with it and got distracted from his duties. olorun, enraged at his son, sent his older son odùduwa to complete the mission. odùduwa was successful and was crowned the king of ile ife. after waking up from his drunken stupor, ọ̀batala was filled with anger and jealousy. however, ọ̀batala pleaded with olorun for forgiveness. olorun forgave ọ̀batala later and gave him the divine duty of creating mankind.10 after man was created, the different òrìṣàs began to descend from the heavens, to teach man how to live and survive. ogun, the god of iron came first and taught man crafts like hunting, he taught them how to make fire etc. other òrìṣàs followed such as aganju, who taught man other survival skills. another òrìṣà of importance is sango, the god of thunder who became the punisher of evil.11it was when the gods descended, that man truly began to truly exist. as the gods began to teach and instruct man, man became sufficient and quasiindependent, which led to the structure of a society similar to the one the òrìṣàs operated in the heavens. this particular myth of creation, is very prominent amongst the yorùbás and its influence is imparted in all aspects of their cultures. the ifá oracle the ifá practitioners believe that ifá is the first and oldest religion known to man, proceeding directly from olodùmarè (supreme being). it is believed that humanity came from ifá that all other religions were birthed from it. many worshippers even go as far as using the bible verse ‘in the beginning was the word and the word was with god and the word is god,’ to explain that ifá is the word that was with olodùmarè (god) and that god gave us the word, to ‘dwell amongst us’12 this bible verse is interpreted by ifá practitioners to refer to the presence of ifálong before anything else.13 salami describes the word ‘…as a message, neither human nor spirit but a message that comes from the supreme being’.14 ifá is thought to be one of the major divinities who came down from heaven or (orun), using an iron chain, into the land of ife.15 it is imperative to note here that ifá may be used in many separate contexts: 1. ‘ifá is used to refer to the god of wisdom and knowledge in yorùbá cosmology. in this context, ifá refers to the god ọ̀rúnmìlà.16 2. ifá is also used to refer to the consultation or divination process of ọ̀rúnmìlà. this is also called ifá divination or ifá dídá 3. ifá is also used to refer to the teachings of ọ̀rúnmìlà .i.e. the ifá literary corpus. this body of knowledge is the sacred text of the yorùbá religion and all its branches and denominations around the world. the corpus is made up of 256 odù (.i.e. ‘books’ or ‘chapters’). each odù contains between 600 and 800 poems. 4. ifá is also used to refer to parts of the scripture that are already subdivided .i.e. the odù or stanzas or verses within the odù. 5. the word also refers to any special herbal mixture or talisman or charm that is prepared for medicinal purposes – the recipes of which are contained in the ifá literary corpus. 6. the word also refers to some powerful prayers or incantations that when uttered, reveal truth in the sense that whatever is stated comes to pass. ọ̀rúnmìlà who was created by olodùmarè to be responsible for the spiritual wellbeing of those that inhabited earth, was granted this heavenly message. he created ọ̀rúnmìlà especially with the ability to cope with man’s antics and quirks, as well as an uncanny ability to understand man, fish and animals.17 ọ̀rúnmìlà was then taught the ways of ifá divination and after fully understanding it, he was initiated into the cult of ifá. thereafter, he was referred to as ifá in some instances.18\ it is important to note that when the heavens were created by olodùmarè. he also created the sixteen major odù and the awoyeroye, who are the priests of ọ̀rúnmìlà’s house.19each divinity from heaven came with their personal instructions from olodùmarè. ifá was charged, using his wisdom and understanding, with the duty of shaping the world. ifá is thought to have been present when the world was crafted. the yorùbás believe that ifá bears witness to the course of man’s destiny.20 yorùbá mythology conceives that ifá or ọ̀rúnmìlà once lived in a place called ‘oke igeti’ and that he had eight children. ifá spent some time on earth and returned to heaven after being insulted by one of his children. it is said that upon his return to heaven, the world was flung into utter chaos and pestilence and confusion fell upon the earth.21 the people of earth began to seek remedy for the hardship they were enduring and sent the eight children 9 stephen adebanji akintoye, a history of the yoruba people (dakar: amalion publishing, 2014) 16. 10 ibid, 18. 11 abosede emmanuel, odùn-ifá: ifá festival, (lagos: west african book publishers ltd., 2000) 60. 12 ayo salami, yoruba theology and tradition – the worship, (uk: nidd publishing and printing ltd., 2008) 11. 13ibid. 14ibid. 15 (n11) 55. 16 kola abimbola, yoruba culture: a philosophical account (birmingham: iroko academic publishers 2005) 48. 17 (n11) 60. 18 (n16) 48. 19 (n12) 11. 20 (n11) 59. 21 (n11) 59. olomojobi & yerima: religious pluralism and the interaction of the yorùbá legal system in nigeria 33 | p a g e of ọ̀rúnmìlà to beg their father to return to earth. the children accepted and went to heave to find their father who was seated under a palm nut tree with sixteen hut-like branches. they begged ifá to return, but he refused instead giving them sixteen palm nuts and telling them to consult him if they want good things.22 this was the dawn of the practice of ifá; the people no longer sought to bring ọ̀rúnmìlà back but rather implored his children to consult him when they had personal and communal issues. some traditions perceive that ọ̀rúnmìlà was not a god but rather he was human. it is conceived that he (ọ̀rúnmìlà) was one of olodùmarè’s prophets; in fact he was his most beloved.23ọ̀rúnmìlà was god’s special messenger to all the creatures of the world; it was only ọ̀rúnmìlà who understood the language of the animals, plants and man. it is important to note that olodùmarè endowed ọ̀rúnmìlà with a special gift; words of power, which has led to various teachings and words of wisdom from him.24 when ọ̀rúnmìlà came down from heaven, olodùmarè gave him the divine duty of ensuring that humans understood how to avoid error in their lives. these issues arise as a result of man’s destiny or actions and inactions made by him/her. when man is faced with challenges in life that he seeks to overcome, he/she will go to the wise one or ọ̀rúnmìlà, who will consult the ifá oracle. the consultation of ifá is called ifá dídá. it describes the action of humans attempting to understand olodùmarè’s will concerning particular issues through the babaláwo. it is the process in which man tries to ascertain olodùmarè’s viewpoint on a particular matter. it involves the offering of sacrifices in order to overcome the challenges and disasters of life.25 ifá divination is performed with a flat divining tray, most often made of wood, the outer edge of which is generally slightly raised and carved in geometric designs and stylized figures. the face has anywhere from one to sixteen faces on the raised edge, and èṣù’s face is always among them.26 divination requires either a divining chain or using palm nuts or cowrie shells. the process involving the divining chain i.e. the opele, is faster and common. however, the use of palm nuts for divination is considered more reliable, especially in matters of importance.27 ifá is a divination system based on sixteen major odù and two hundred and fifty six derivative odù, acquired by either the manipulation of palm nuts (obí àbàtà),or the manipulation of cowrie shells (mérìndínlógún). sixteen cowries or palm nuts are used in the divination, but a seventeenth is placed opposite the diviner and is referred to as the money of ifá or a kind of chief that presides over the palm nuts being manipulated.28 of pertinence in the odù, is the major odù which are 16 in number, they are called the oju odù and are the main configurations in the divining process from which all the others are derived.29 they are deities who are often at odds with one another.30 the 16 major odù are regarded as the messengers of ifá, they replaced ifá after his departure to heaven.31the divination process is conducted by a babaláwo referred to as the father of secrets, who acts as a medium through which ifá communicates to his acolytes. he evokes the odù which is the most relevant to the client’s situation or need and then uses a poem or tale that connects to the issues presented to ifá.32after this, the babaláwo gives instructions which ranges from warnings, to blessings, to specific sacrifices (ebo) as required. the social structure of ifá oracle in yorùbá society the yorùbá society had a structured cycle and at its core laid the consultation of ifá. the nineteenth century was a time of great evolution within the yorùbá political systems. there were about fifty different wars being fought amongst the various subsets of the yorùbá people such as òyó, ègbá, àwórì, ìjèbú, akoko, igbomina, ekiti, okun yorùbá, owo, egbado, ijeṣa, and ìfè amongst others. these wars led to the evolution of the yorùbá political system which was a centralized monarchy with ‘typical and atypical reference to common descent or tradition of origin’.33 the influence that ifá had on the society is enormous, spreading to the deepest recesses and topics as remote as parenting and training of children. yorùbá proverbs which are often used in the training of a child and counsel of a king are derived from the ifá corpus which is basically an embodiment of yorùbá philosophy and beliefs.34 ifá is consulted on all societal affairs, such as what king is to be selected, who was to occupy what positions, how the leaders should impact the society, on what day should certain things be sold and many other issues that arose from man’s day to day life.we find constantly, ‘…in ifá verses, that one situation has a thousand mirrors in all possible directions and dimensions. ifá is all about the hermetic axiom, ‘as above, so below’ – the below is always seen as a crossroads, and the chain of choices made at each of its four gates reveal images of the invisible world above.’35 as makinde wrote when reciting an ifá proverb: wisdom is known as ifá; knowledge is the other name for opele ifá. because we are bound to have problems. 22 ibid. 23 ibid. 24 ibid. 25 (n12) 4. 26 allison sellers and joel e. tishken, ‘the place of èṣù in the yorùbá pantheon’ in toyin falola (ed) èṣù: yoruba god, power, and the imaginative frontiers (durham: carolina academic press, 2013) 27 nicholaj de mattos frisvold, ifá: a forest of mystery, (london: scarlett imprint, 2016) 9 28 n26 29 willfried f. feuser, dilogun: brazilian tales of yoruba divination discovered in bahia, (ibadan: shaneson c.i. ltd., 1989) iv. 30ibid. 31 (n6) 93. 32ibid. 33(n7) 273. 34 raji adeyemi areje, yoruba proverbs. (ibadan: daystar press 1985) iv. 35 (n27) 26 https://www.jstor.org/stable/1384378 african customary and religious law review (acarelar) 3 (2022) 34 | p a g e it is to be informed about something we are ignorant of; that ifá exists to help us.36 the traditional yorùbá society was broken down into different components. the family was the smallest part which was headed by the baale. the baale is usually the oldest male in the home and is accorded great respect based on his age, wisdom and of course, experience.37 he settled disputes within the family and represented the interests of his household at the quarter chiefs council meetings. if the conflict arises between the two families that live within the same compound, then it is the baale who resolves these issues. the baale is the head of the compound above the family unit. appeals can be made from the baale’s court to the olòrítun, which is a council of baales. if the baales give an unsatisfactory judgement, an injured party may take the matter to the ọ̀ba. in cases or situations where the ọ̀ba’s judgement is deemed unfair one still has recourse to the iwarefa. the iwarefa is the supreme court of the land. their judgement is so sound that it overturns even the verdict of the ọ̀ba. then next component was the quarters; made up of a group of families, each led by a chief of some sorts who was selected by the ọ̀ba and represented the interests of the people. often times, kings and their high councils would consult ifá to figure out how to help the society develop, and based on the answers received, they would make laws for the society and help create societal orderliness. the high council of the king takes on different names depending on the place it is established, for instance in the ègba land, it is the ògbónì, in ọ̀yò, it is the ọyọ mèsì. the law like the ifá corpus, in modern times, provides insight on how to solve man’s problems. the sacrifices prescribed by the oracle can be likened to damages prescribed by the courts. everything in that society had a place, including women. women played political roles such as the iyaloja or spiritual roles like that of the iyanifá. an iyanifá is a woman who has achieved the status of an ifá priestess through many years of meticulous training.38 èṣù: the divine messenger before the dawn of colonization and the inflow of christianity into nigeria, the concept of spiritual warfare had already existed within the scope of christianity. this means that even before encountering the traditional religions of pre-colonial nigeria, christianity was already built upon the idea of the struggle between the two great forces that control the world and life and the struggle between good and evil.39 in the bible, satan (the devil) is corrupt, evil and chaotic. he possesses no moral compass and is perpetually opposing god and his will. thus throughout the bible, from the fall of man in the garden of eden to the death of jesus christ and now in present day society, the devil is constantly at work fighting the kingdom of god.40 hence it can be said that man’s life is continuously in strife and caught in the perpetual battle of good versus evil. armed with this notion, the early missionaries created another force called ‘the other’ when they came into africa.41 reverend samuel johnson equates èṣù to the satan of abrahamic faiths, who is completely evil and devilish in conduct and action. he refers to èṣù as the ‘evil one, the author of all evil’.42 unfortunately, critics disregard johnson’s submission based on the rationale that his ideas were influenced greatly by the bias against african traditional religion since he was an evangelist of the christian faith.43 according to ifism, the religion has a pantheon of 600+1 supernatural powers. ifá categorises them into two classes: irinwó o mọlẹ ojùkòtun44and igba mọlẹ ojùkosi òwurò.4546 according to yorùbá cosmology, the universe is divided into two halves; the right side and the left. there are four hundred supernatural powers are on the right while two hundred supernatural powers on the left. the powers on the right are the òrìṣà i.e. the divinities. they are benevolent, but they sometimes punish humans who corrupt society. the yorùbá pray and offer sacrifices to the òrìṣà in order to achieve their desires. inhabitants of the lefthand side are ajogun which are the anti-gods and are irrepressibly malevolent.47. the word ajogun means ‘warrior’; hence they wage war against man and the òrìṣà. the ajogun have eight warlords which are: ikù(death), àrùn(disease), ofo(loss), ègbà(paralysis),ọràn(big trouble), èpè(curse), èwòn( imprisonment),èṣe(affliction).48 while these powers are divided in such a clear cut manner, there are supernatural powers that straddle both sides of the left-right divide. these forces are àjẹ (which translates loosely to witches) and èṣù. èṣù is a neutral factor in the sense that he is neither bad nor good but rather is a mediator between good and evil. one could say that he balances out the equation of the world. it is worthwhile to reiterate 36moses makinde, ‘ifá as a repository of knowledge’, (1983), volume 23(2) journal of west african studies 116. 37ayo bamidele, public administration and the conduct of community affairs among the yoruba in nigeria (oakland, calif: ics press, 2002) 56 38akin ibidapo obe, ‘spirit, soul and gender: the role of women in traditional worship amongst the yorùbá’, in akin ibidapo-obe and chiedozie okoro (eds) awise agbaye: the voice of the oracles – essays in honour of professor ogunwande abimbola (lagos: concept publications ltd., 2017) 39 benson ohihon igboin, ‘èṣù and the problem of evil’ in toyin falola (ed) èṣù: yoruba god, power, and the imaginative frontiers (durham: carolina academic press 2013) 40 ibid. 41michael asiegbu, ‘spiritual warfare and the demonization of the other: missionaries, pentecostal/charismatics and the popular praxis’, (2006) 20() the nigerian journal of theology 23 42 samuel johnson, the history of the yorubas, (nigeria: css bookshops, 1921). 43olubayo oladimeji adekola, ‘èṣù elegbara in yorùbá spiritual and religious discourse’in toyin falola (ed.) èṣù: yoruba god, power, and the imaginative frontiers (durham: carolina academic press 2013) 44four hundred supernatural powers are on the right which are benevolent in nature. 45 two hundred supernatural powers on the left who are malicious. 46 kola abimbola, yoruba culture: a philosophical account (birmingham: iroko academic publishers, 2005) 48. 47ibid. 48ibid. olomojobi & yerima: religious pluralism and the interaction of the yorùbá legal system in nigeria 35 | p a g e that of all the divinities created by olodùmarè, the most controversial would be èṣù. in a world that is black and white, he is usually painted on the black side, as the source of evil and destruction especially in modern day religions like christianity and islam. he is regarded as the devil; the being whose sole purpose is to destroy the world.49. however in yorùbá mythology, èṣù is not so simple to understand. he is a rather complex puzzle to solve, in fact, one of his cognomens describes him as ọkunrìn nla, atuka ma se e sa the big man, when he breaks into fragments, no one can piece him together50 èṣù is one of the oldest and most powerful of the òrìṣàs that exists. however, as an òrìṣà, he doesn’t quite fit into any of the categories that the others have structured them into. he cannot be cast into the role of a subordinate, even when he performs his messenger duties. in fact, during worship he is usually the first to receive salutations. èṣù is the divine messenger between the supreme deity and the other òrìṣà; he carries the reports of the activities of man and other òrìṣà to olodùmarè and carries back messages from olodùmarè to its recipients.51 he is basically olodùmarè’s proxy on earth. he is also however a trickster, often causing trouble to spice up everyday life. he is also characterised as deceitful and betrays no emotions or intentions often having secret plans and goals he wishes to fulfil. in fact, many say that he is the one who reported ọ̀batala to olodùmarè. he can intimidate his fellow òrìṣà; he can make their powers impotent, turn olodùmarè against them and ruin them permanently.52 èṣù is an esoteric being to understand and describe as he possesses a multifaceted personality and vast number of sacred duties.53 èṣù can best be described as paradox personified. this paradox is even evident in the mythology surrounding his origins. he is believed to be both amongst the primordial òrìṣà deities and at the same time, the youngest and cleverest.54 this grants him the freedom to act how he pleases, in the sense that he is free to experiment with the rules as the young and innocent, but at the same time he possesses the wisdom and understanding to bypass the laws restrictions.55as the gateway of communication, it is the odù that makes it possible for prayers to be answered and magic to be performed.56 3. yorùbá legal system before the colonization era, the yorùbá had their own indigenous or customary institutions and a great majority of the citizenry of this tribe adhered to these customary institutions and laws and accepted them as binding.57 one of the greatest misconceptions about the pre-colonial judicial system of the yorùbá people is that it was barbaric, primitive and largely uncoordinated.58 the justice administration system of the yorùbá people was hierarchically structured and organized even before the colonialists brought in their own system. there existed rules, norms, agencies and institutions of the law. the yorùbá adjudicatory system is geared towards reconciliation and restoration of balance within the society. thus, even if death is the only way to restore peace, death would wrought upon anyone without a second thought.59 it would seem that the inconsistent thoughts on the african legal systems stem from a point of euro-centrism. euro-centrism may be articulated as the perception of the world and its cultures in terms of european or anglo-american values and experiences.60 there are pieces of negative narrative that european cultures and societies are superior, the expression of a bias and prejudice against non-european cultures and societies. thus, at the dawn of colonization, when the white men came, they used their standards of what a legal system should look like, they looked for factors and characteristics that, from their own stand point, constituted a legal system, and when these factors were absent or albeit, different, they regarded what was in place as faulty and abysmal. an informal court system was practiced within the yorùbá customary system with the elders playing a significant role. elders were expected to intervene, mediate, reconcile and adjudicate in conflict matters to ensure peaceful coexistence in the community.61 the yorùbás even have an adage that is proof of the significance of elders to the maintenance of law and order in the society, àgbà kì í wà lọ́jà kí ori ọmọ titun wọ (‘the presence of an elder would automatically instil order’).62 the informal court system which was governed on the principle of natural justice usually conducted its trials and hearings in public and any of the issues in question could be resolved at any time.63 however, not every case can be solved or resolved by the informal 49 (n16) 50 toyin falola, ‘èṣù: the god without boundaries’ in toyin falola (ed) èṣù: yoruba god, power, and the imaginative frontiers (durham: carolina academic press, 2013) 51ibid. 52ibid. 53 omasade awolalu, yoruba beliefs and sacrificial rites (usa: athelua henrietta press, 1996) 29. 54 allison sellers and joel e. tishken, ‘the place of èṣù in the yorùbá pantheon’ in toyin falola (ed.) èṣù: yoruba god, power, and the imaginative frontiers (durham: carolina academic press, 2013) 55 robert d. pelton, the trickster in west africa (california: university of california press, 1980) 129 56 (n27) 57ibid. 58 oluyemisi bamgbose, ‘dispute settlement under the yorùbá culture: lessons for the criminal justice system’, in toyin falola and ann genova (eds) the yoruba in transition. history, values and modernity, (durham, carolina academic press, 2006) 125 59 an interview with prof. i.o. agbede, emeritus professor, school of law and security studies, babcock university, (iperu remo, 13th february, 2020) 60 sabelo j. ndlovu-gatsheni, how eurocentrism & coloniality shaped africa available at <https://berghahnbooks.com/blog/how-eurocentrism-coloniality-shaped-africa-2> accessed january 27th 2020. 61 oluyemisi bamgbose, ‘law and justice’, in toyin falola and akintunde akinyemi (ed), culture and customs of the yoruba, (soith-africa: pan african university press, 2016) 837 62ibid. 63 (n58) https://www.jstor.org/stable/1384378 https://berghahnbooks.com/blog/how-eurocentrism-coloniality-shaped-africa-2 african customary and religious law review (acarelar) 3 (2022) 36 | p a g e courts. a hierarchy of courts exists to take over issues that seem too large or too heavy for the informal courts. the courts were divided into three: first is the ilé ẹjọ ti baáléwhich was a court held within the family compound and headed by the baálé who is the family head. second is the ilé ẹjọ ti ìjòyè, which was a court headed by the village chief. third was ilé ẹjọ ti ọba,this was basically the highest court in the hierarchy of courts, the supreme court of the community which is headed by the ọ̀ba and made up of the royal court of the king.64 minor disputes and issues such as matters of theft, marital quarrels, inheritance, divorce, infidelity and other related matters are reviewed within the family; hence it is usually the family heads who sat on these issues.65 in other cases where there is no mutual understanding between the parties to the suit, the village court determines the issue. the village head is in charge of this court and such a person is knowledgeable about the traditions and customs of the people and who is known to have high moral standing and integrity.66 age is an important factor in the selection of the village head, since as earlier stated; elders play an integral role in the justice system.67 issues brought before the ‘lower courts’68 that is the family courts and village head courts, are tried with the family bond in mind. this implies that the dispensation of justice amongst the parties would have always been subject the family bond; family comes first. social justice and equality are also major features of the judgements granted in such courts.69these issues are usually determined quickly and usually without any bad blood between the parties.70 these courts utilized a common-sense approach in the dispensation of justice, as opposed to a legalistic one that is applied more in contemporary times.71 the highest court at that time was the royal court, which was headed by the ọ̀ba. the ọ̀ba was a sovereign who fit into austin’s description; in the habit of receiving obedience and was subject to no powers except the powers of the orisa. the ọ̀ba was the supreme head and his court was the court of last resort.72 cases like rape, incest, murder, treason, arson and other grievous offences were tried in the king’s court. issues that were of a mystical origin, witchcraft, misuse of magical charms and other spiritual offences were determined by the king’s court using the royal traditional cults to investigate.73 these traditional cults exist within the different yorùbá tribes under different names, each name depending on what tribe it exists within. they also exercised both social and religious control over their communities, these cults include, the ayélálá, the ògbónì, theagẹmọ, and the orò cult.74 the traditional yorùbá society is structured. individuals had a function. thus, even within these traditional courts, there were personnel who performed different roles in the administration of justice. these include orderlies and emissaries who perform similar functions to that of contemporary court clerks.75 they passed on the information to parties and witnesses and ensure orderliness during the hearing of the case.76 sanctions were also widely recognised in the traditional yorùbá society as a tool of deterrence. throughout the years, those who had violated the status quo and societal norms and values were disciplined in order to set them aright.77 balogun emphasises the importance of punishment to the yorùbá by stating that it is the mechanism for establishing collective morality within the yorùbá society through the disapproval of improper manners and behaviours capable of the disruption of the social equilibrium and legal status quo.78such sanctions utilised by these courts were dispensed by the officials and they include but are not limited to; banishment, slavery, public humiliation, caning and payment of fine. it is noteworthy that even though the legal system of the yorùbá people differed from tribe to tribe, the factors being highlighted are generic features of the legal systems of the yorùbá. legal mechanisms in the pre-colonial yorùbá society many african societies had properly set out rules of behaviour and the yorùbá societies were no different. an examination of these legal systems would reveal that there is not much variance between the african legal systems and the contemporary legal systems. for instance, every tribe had a code, but not a code of detail, rather a code of general principle, a code that every judgement and decision must conform to. such rules may specify the type of punishment deserved or may prescribe the procedure for penance or even marriage.79 also, under yorùbá legal system there is a strong reliance on the past decisions of the elders or ancestors. in fact it is from this past decisions that verses from the ifá corpus are born and are made part of the legal system. this can be likened to what we now know as judicial precedents. 64 toyin falola and g.o. oguntomisin, the military in nineteenth century yoruba politics (ife: university of ife press 1984) 19. 65ibid. 128 66 omoniyi adewoye, the judicial system in southern nigeria, (london: longman publishing group, 1977) 67ibid 68 lower courts here is used to refer to these courts that are more grass root than the others. dealing only with issues that exist between family members and between families. 69 (n58) 70 ibid 71ibid. 72ibid. 73 olumide lucas, the religion of the yoruba, (lagos: cms bookshop press, 1948) 54. 74 oluwatosin adeoti akintan, religious tolerance and peaceful coexistence: the case of female religious cults relationship in ijebuland, ogun state, nigeria (2019) available at <https://www.iiste.org/journal/indexphp/rhss/article/viewfile/13261/13575> accessed january 28th 2020. 75 (n58) 839. 76ibid. 77 (n58) 4. 78 oladele abiodun balogun, ‘a philosophical defence of punishment in traditional african legal culture: the yoruba example’ (2009) 38(1) the journal of pan african studies 43. 79 harold lambert, kikuyu social and political institutions (london: routledge, 1956) 118. https://www.iiste.org/journal/indexphp/rhss/article/viewfile/13261/13575 olomojobi & yerima: religious pluralism and the interaction of the yorùbá legal system in nigeria 37 | p a g e the legal content of ifá the legal content of the ifá corpus is a field of study that is in-exhaustive in itself. the corpus is far too wide to even be considered in its entirety as some of it remains within the hearts of its practitioners or are lost with time. as a result of its vastness, some of the corpus has been broken down into easily understandable pieces found in other media such as the oriki (praise poems), proverbs, rituals and festivals. in addition to this, in juxtaposing modern contemporary law, it is noted that it is also a vast field of study. consequently, because this study is an extensive undertaking, it will have to be limited by the legal subdivision given below. ifá in environmental law in the ifá corpus, the earth is believed to be an òrìṣà, she is regarded as ilẹ.80 although there are no odu in particular that speak of ile, there are many verses.i.e. ẹṣẹ which speak of her. for instance odù ọsá méjì goes thus:81 ‘ọsá yòóò, babaláwo ayé, ló dífá fáyé; wọn láyé ó fẹbọ ọlà á lẹ̀ ẹbọ ajogun ní ó ṣe. njẹ̀ àwá n bẹ. à n bẹ̀. àwá mọ̀mọ̀ n bẹ láyé o ayé ò níí parun.’ this verse translates into;82 ‘ọsá, the brightly shinning one ifá priest of earth performed ifá divination for earth; earth was told to stop performing sacrifices intended to make her wealthy, but to perform instead sacrifices that would protect her against her against her enemies. we are certainly alive, and we are pleading that as long as we remain on earth, earth may never be destroyed’. a yorùbá proverb says: ‘ọmọ onílẹ̀ n té ẹ jéé jéé; àjògì a tè è bàsù bàsù’ which loosely translates into ‘the child of the owner of a plot of land, walks gently atop the soil, whereas a visitor just runs rough on it’.83 the odu verse warns the earth not to make sacrifices that will bring her riches but rather she should make sacrifices that will give her victory over her enemies. there are many who exploit the earth and her gifts .i.e. her natural resources; miners, excavators, oil drillers, large corporations that are responsible for poor refuse disposal and pollution these are who are considered enemies of the earth and her prosperity. the verse charts of the reality of global warming and what the believers should do in order to protect the earth. this is in tandem with the provisions of the constitution84 which enumerates the environmental objectives of the government. this section charges the government with the duty to protect and improve the environment, protect the water, air, land, and forest. ifá and constitutionalism the term ‘constitutionalism’ is used to describe the idea that a government can and should have legal limits on its powers, and that its legitimacy and efficacy rests and depends on its ability to adhere to these legal restrictions.85according to the yorùbá belief system, the process of state creation was commenced by oduduwa. he is regarded as the architect of the modern representative system of government. this system in its primary form emphasised the importance of a monarch and his powers over the people.86 all these societies and political systems designed machineries which helped curtail and control the excesses of the kings and chiefs either publicly or in secret.87 in comparison to all other kingdoms, the ọ̀yò empire established one of the most impressive systems of government. this governmental structure contained a check and balance system which allowed the organs of government to utilise their powers to their fullest potential but also stopped these powers from acting ultra vires.88 these organs of government were; 1. the aláàfin, who was the paramount leader; 2. the ọ̀yò mesi, which were more like a council of the state or advisors to the king; and 80 she is also known as ayé meaning life 81 (n6) 66. 82ibid.at 67 83ibid. 84 constitution of the federal republic of nigeria of 1999 (as amended) cap,c23 laws of the federation s. 20. 85will waluchow, ‘constitutionalism’, (2017), the stanford encyclopaedia of philosophy, available at <https://plato.stanford.edu/entries/constitutionalism/> accessed 1st february 2020. 86 akin alao, ‘politics and government’, toyin falola and akintunde akinyemi (ed.), culture and customs of the yoruba (south africa: pan african university press, 2016) 598. 87ibid 599 88ibid. https://www.jstor.org/stable/1384378 https://plato.stanford.edu/entries/constitutionalism/ african customary and religious law review (acarelar) 3 (2022) 38 | p a g e 3. the ògbónì, who bore responsibilities similar to the judiciary. the ẹ́ṣọ́, who were the army, acted as the executive in some way as they enforced the will of the arms of government as well as acting in their own capacity as the armed forces in charge of defending their community and their monarch.89 in juxtaposing this with austin’s theory of the sovereignty, austin believed that the existence of an ultimate authority was a prominent feature of an independent state or political society. whether that personality or sovereign is given a title such as king, or chief or anything else, is irrelevant as this mystique of sovereignty attaches to him an authentic source of respect for constituted authority. 90 ifá and human rights the core of law of human rights law is the protection of individual rights and the promotion of justice, equality and fairness amongst the citizenry of the world. there is a popular belief that african law is more concerned with the rights of the community, i.e. collective rights, as opposed to the rights of individuals.91 while it is mostly true that individual rights take a back seat to the rights of the collective, the importance of personhood and individuality in the ifá tradition is emphasised.92 the concept of òrí,.i.e. the divinity of the head, is greatly emphasized in the ifá corpus and consequently this emphasis adequately demonstrates the importance of personhood in the religion. the òrí of a person is the embodiment of his/her past, present, future, destiny, existence and essence. it translates loosely to pre-destination, destiny, fate or pre-ordination.93 however although the òrí means destiny, it is in constant flux and is subject to manipulation by the supernatural forces in man’s life, it is then up to man to take control of his life and focus himself on the fulfilment of his ambitions with the blessings of the òrísá.94 the dedication of the entirety of chapter iv of the nigerian constitution to the enforcement of the fundamental human rights can be regarded as the recognition of the importance of the person and the importance of preserving the person and his rights.95 the ifá worship is usually characterized as a religion and religion for many years has been a tool for the subjugation of the female race. religions such as islam and christianity have a history of oppression of women and their subjugation. 96 however, within the ifá traditional worship, the role of women is distinct, definitive and significant. although the dominant role of worship is reserved for men, that is the role of babalawo or chief priest of ifá, the female role of iyanifá, if properly understood, is one of spiritual significance and import with thorns. 97it is important to note that one of the first verses taught to a babalawo is: ifá ní yẹ́ fùnmì; ẹ ma fùnmì lówó; ti o ba fùnmì lówó o ma tàn. this means: give me ifá; don’t give me money; if you give me money, it will finish. this means that the compendium of knowledge of ifá is sufficient for those who truly appreciate the corpus. the role of women in the worship may stem from their role in the wider yorùbá culture and community. the greatest misconception about the yorùbá society is that women are second class citizens and that men are the glorified heads of their households; ruling with iron fists and doing as they please.98 fortunately, this image is not a true depiction of the dynamic in the relationship between a yorùbá husband and his wife or wives. women were empowered to be economically independent, engaging in crafts, farming, trading; taking care of themselves and their children.99 thus, women held political posts and positions of spiritual relevance and why the ògbónì could not have a functional meeting without the èrélù being present. the importance of women is traced down to the beginning of creation. when human were sent down to the earth, òṣún, the only woman out of two hundred men, was granted àṣé (which is the power to establish things) by òlódùmaré. the other men decided to leave òṣúnout of the work that they were doing. consequently, everything they set up fell apart and their efforts were frustrated.100 when they made supplications to òlódùmaréto help them, òlódùmaré sent them back to òṣún, stating that they had to appease her before they could succeed.101 when they appeased her and everything was set aright, they sang her praises saying: ‘a f’imo je t’òṣún; iye wa, a ba won pe l’imoawa f’imo je t’òṣún o’. this means that: ‘we give reverence to òṣún; the unseen mother ever present at every gathering; we give reverence to òṣún’. as if to emphasise the significance of women in ifá, the òlórì ìkín (the leading palm kernel used in divination) is a representation of òṣún. women of the traditional yorùbá society are capable of attaining high positions not just iyaloja and iyanifá but also ọ̀ba, which indicates that the word ‘ọ̀ba’ is gender neutral meaning sovereign.102 the ògbónì cult which served as the judiciary of the traditional yorùbá society was also subject to female powers as the cult could not hold meetings without the presence of the sole female member, the èrélù.103 89ibid. 90 (n38) 63. 91 akinsola akinwowo, ajobi and ajogbe: variations on the theme of sociation, (ibadan: univerisity of ife press 1980) 11. 92 (n38) 63. 93 rowland abiodun, ‘ifa art objects: an interpretation based on oral traditions’, in w. abimbola (ed) yoruba oral tradition, (ibadan: ibadan university press, 1975) 422. 94ibid. 95constitution of the federal republic of nigeria 1999, s.34 96 for instance, when st. paul disallows women from speaking in church. many ignorant minds hypothesize that the basis for this is that women gossip. although it is absurd to think that gossiping is a gender trait, many others have begun to subscribe to this thoughtless notion and enforce it further in their temples, mosques, churches and other places of worship. 97 (n38) 26. 98ibid 99 ulli beier and rowland abiodun, conversations on yoruba culture, (lagos: iwalewa books, 1991) 100 (n38) 64 101 i suppose this could be an african etymology of the phrase ‘behind every successful man is a woman’. 102 (n38) 26. 103 (n38) 63. olomojobi & yerima: religious pluralism and the interaction of the yorùbá legal system in nigeria 39 | p a g e as mentioned above, ifá pervades every aspect of the yorùbá societal living from contract to marriage etc. in contract it is your word that binds you. in marriage, ifá is ever present even in the name of wife that is known as ‘iyawo’. it is from the words ‘iya’ ‘iwo’ which means that you must suffer for your wife. it is from an ifá verse which tells the story of ọ̀rúnmìlà who wanted to marry the daughter of oluwo who had to suffer the hardship of sleeping on a mattress critique of the yorùbá legal system every legal system in the world has its own flaws and because law is a fluid and flexible concept, it most adapt to meet and suit the needs of the society in which it functions. as innovative as the yorùbá legal system was, it possessed many flaws in which it had to evolve to surpass. unfortunately colonialism stole the opportunity for self-development and growth. however, what this study will attempt to do is to analyse and critique the traditional legal system while comparing it to the contemporary english legal system. the most prominent and harshest critique that the traditional legal system has received over the years is of course that some of their practices were repugnant to natural justice and general criminal justice standards.104 the nigerian customary legal systems have always been criticised for being against international human rights. punishments such as slavery and public humiliation went against the basic human right to dignity of person. the repugnancy test was developed to accord the court the ability to fine tune the customary law to meeting the changing social needs of the society.105 cases such as lewis v. bankole106, agbai v. okogbue107 and meribe v. egwu108 are all illustrative of the customary laws ability to evolve to meet the new changes in the society. unfortunately the unwritten nature of customary law creates many issues in its enforcement. for instance, the provisions of s.36 (12) of the 1999 constitution (as amended) which states that no individual can be convicted or even tried for offences not stipulated in any statute, thus rendering the criminal part of the nigerian customary law unenforceable. given the notion that it is largely unwritten and informal in nature, it operates with little regulation and in some cases outside the confines of a legal framework.109 the traditional legal systems lack procedural guidelines that ensure the rights of disputants. given the lack of safeguards available for the protection of rights, many vulnerable groups suffer from exploitation.e.g. rape victims, domestic violence victims and children. these victims suffer from severe social, economic and mental strain as a result of the exploitation and judgement from the society at large.110 women are routinely discriminated against in relation to sexual rights, succession rights down right to the basic right to dignity of persons.111 they are utilised as objects and property for the payment of compensation to wounded parties without being compensated themselves for the pain they bear. some sanctions even perpetuate the abuse of women by forcing them to get married to their abusers or rapists. in addition to this is also the method of ascertainment of evidence. the yorùbá justice system utilised bizarre and unorthodox means of obtaining evidence which violated human rights; methods such as trial by ordeal112 which has been outlawed by section 207 of the criminal code act.113 practices such as black magic and witchcraft which defy laws of logic and modern scientific rationalism were used to collate evidence, hence the conclusions these methods came to were as unsound as the methods used.114 the compensatory nature of the yorùbá legal system may deny disputants the rights to the remedies and may disparage the principles of equality before the law especially in cases where decisions are taken not based on the nature of the crime but rather on the gender and or social standing of the parties.115 it would seem that the critiques given to the legal system are too harsh as no legal system was without its flaws. as law is a living thing and is in constant flux, it is meant to evolve and shape itself into a mechanism of social engineering. thus, if we had been given the chance we would have evolved passed these flaws in the legal system. in the words of the great benjamin cardozo, law never is, but always will be. the subject matter of this study can be seen to permeate every aspect of societal living. this vast and nebulous concept which always seems to have the answers to every situation prompts the asking of the crucial question, ‘what really is ifá?’ many tend to view it in isolation as a religion, but it is so much more than that. it is a corpus of wisdom passed down from generation to generation. it is an oral culture which has endured all this while, with wisdom being passed to the next generation by words of mouth. its presence in the yorùbá legal system is therefore not surprising to those who have a deeper understanding of what ifá truly is. it is a corpus, a compendium, a compilation of wisdom, of adages, proverbs, stories and situations all of which are 104 joshua taiye omidoyin, ‘the customary justice system and its continuing relevance in the administration of justice’, in akin ibidapo-obe and chiedozie okoro (eds) awise agbaye: the voice of the oracles – essays in honour of professor ogunwande abimbola at 85, (concept publications ltd 2017) 233. 105 joshua taiye omidoyin, ‘the customary justice system and its continuing relevance in the administration of justice’, in akin ibidapo-obe and chiedozie okoro (eds) awise agbaye: the voice of the oracles – essays in honour of professor ogunwande abimbola at 85, (concept publications ltd 2017) 233 106 (1908) 1 nlr 81, 107 (1991) 7 nwlr (pt. 204) 391. 108 (1976) 3 sc 23. 109 (n104) 110 (n104) 111 (n104) 234 112 d. isser, s. lubkenmann & s. n’tow, looking for justice: liberian experiences with perceptions of local justice options. united states institute of peace. peaceworks no. 63, 57-56, https://www.usip.org/files/resources/liberian_justicepw63.pdf., accessed on january 29th 2020. 113 criminal code act, s.207. 114 j. widner, courts and democracy in post-conflict transitions: a social scientist’s perspective on the african case, (2001), 95(1), american journal of international law. 64 115 (n104) 234 https://www.jstor.org/stable/1384378 https://www.usip.org/files/resources/liberian_justicepw63.pdf african customary and religious law review (acarelar) 3 (2022) 40 | p a g e relevant and can still be applied to the present day problems and challenges of man and womankind. it was relevant to its society then and is still relevant now as they are not as many deviations from the structure of legal systems within contemporary times. it should be noted however, that ifá is an oral culture and thus is subject to the manipulation and corruption of man as well as loss of certain parts either due to the forgetful nature of man and or the lack of willing descendants to pass this knowledge down to. after the advent of the europeans, euro-centrism crept into our societies, watering down our belief systems and de-constructing the structures that were established by our cultures. the colonial masters managed to manipulate the african mind against its on cultures, creating the belief that our cultures were barbaric and primitive as opposed to their modern and elite culture. with the influx of other religions such as christianity and islam, the african traditional religion became the opposing side to these abrahamic faiths thereby becoming demonised by the very people who subscribed to it earlier.116 the traditional leaders of today are also not without fault, by willingly embracing the cultures and religions of another and disregarding their own, they demonstrate to the people just how far the europeans have penetrated deep in to the society. today’s traditional rulers are hybridized nigerians who have learned to wield the european culture alongside the nigerian culture with the european cultures as a sword and the nigerian culture as a shield to be called upon only when needed. 4. conclusion a general misconception about ifá is that it is related only to spirituality, worship and religion. as a result of this widely held misconception, many try to dissociate ifá from society and section it off as a religion. it is incorrect to do so however, as ifá is a compendium of knowledge that permeates all aspects of the society. ifá is not a religion it is a anthology of our history, laws and ways of life like our constitution. it is a record of all that has happened to us. and within this vast concept, is religion, science, law, technology, education even agriculture. this article has established that ifá is fundamental to the yorùbá worldview and philosophy. its active role in the lives of its subscribers, their society and their interpersonal relationship serve as evidence of its import to the yorùbá people. its pervasiveness and fluidity allow it to penetrate the deepest recesses of the society from the naming and training of children, to how laws are implemented in the society. unfortunately, the dawn of colonialism morphed the customs and traditions into the mock hybrid of cultures that are practised in contemporary times. consequently, it is unclear as to whether the content of these cultures would have remained untouched without the interference of the imperialists. what is clear, however, is that ifá as a body of knowledge continues to be a meeting for the yorùbá and its diasporas. it is part of spirit of the people. it must be re-iterated here that ‘ṣaaju ki a to mọ̀ íbíti à nlo, a gbọdọ mọ̀ íbí ti a ti nbo’, which means that ‘before we know where we are going, we must know where we come from’. it should be noted that some of the problems identified by this study may be difficult to solve, however, for a nation to grow society must be deconstructed and reconstructed. it is to this effect that the following recommendations are made. there is need for a total and complete overhaul of the nigerian legal system; the nigerian legal system is a tripartite system that consists of many legal rules and norms which are not relatable to the people who obey them. the inclusion of the english laws which even england has done away with in the nigerian legal system only further justifies our colonialists and places them on higher pedestal than our state. if nigeria were to truly embrace her independence as a state, she would have to disregard the english laws and work on recognising the value within the state rather than ripping off the customary laws and rules of a country which is largely different from ours. not only that, but the nigerian government must also stop the implementation of rules and statutes that deliberately attack its customs and traditions. laws that outlaw certain practices which are not repugnant to natural justice, good conscience and equity are grossly unfair and impracticable. again, a codification of the customs and traditions of the people in nigeria is necessary. this may seem unorthodox and unrealistic given that nigeria is a vast state with as many as 400 ethnic groups. however, the codification of these customs and traditions of these people would not only ensure the inclusion of all nigerians in its implementation but would also make such customs available for scrutiny and amendment. its codification may also allow for its criminal aspect to be applied by the nigerian courts who have set aside customs through the use of section 36(12) of the 1999 constitution of the federal republic of nigeria (as amended in 2011). asides from the fact that its codification would ensure inclusion, it would also encourage the nigerian people to be more involved in the legislative process as it is their customs and traditions. this recommendation may encounter problems due to the fact that the attempting to codify rules that have been oral for so long may actually lead to disharmony within the law itself. 116 rev samuel johnson and samuel ajayi crowder are just two examples of the effects of christianity on the african traditional religion. crowder’s use of esu to describe satan in the bible has had long lasting effects on the yorùbá religious psyche which may never truly heal. however, the true nature of esu has already been discussed in previous chapters. african customary and religious law review 1 (2020) page | 1 criminal justice, spiritualism and judicial attitudes in nigeria* abstract subterranean to any colonization process is a psychology and philosophy of superiority complex. every colonial master is always with the intent that his culture, education and worldview should constitute the parameter on which all activities in the colony must be measured. the case of the colony of nigeria, as it then was, did not paint a different picture. an instance of the colonial vestiges and legacies bequeathed to nigeria is the modus operandi of an entire legal and judicial structure. such is particularly the case with the british-type court system operating in nigeria today in such a way that matters related to spiritualism are readily dismissed. but the reality is that nigeria, just as the entire africa, has part of its worldview as highly spirit-filled together with its consequences, part of which is the possibility of commission of crimes via supernatural means. there is no doubt that these practices and possibilities are quite alien to our present jurisprudence which lacuna can hardly be surprising as most of our judicial officers and policy makers were trained under the western conceptual scheme and theory of knowledge. yet in their private lives, they know that the realities in question exist. this paper exposes this attitude as a limitation on the part of nigerian justice system. it seeks to suggest the panacea in the light of prevailing autochthonous mindset. keywords: criminal justice, spiritualism, judicial attitudes, defence of mistake, nigeria 1. introduction law is an instrument of social control and integration. as a vehicle of social engineering, law is a dependent variable causally determined by the societal structure. also viewed as more active instrument for shaping future behaviours and social forms, the function of law and legislation must be clearly seen as one of communicating with the relevant society. the long and short of the above assertions is that law should be a mirror that reflects the behaviour and worldview of a given society. thus, the legal needs of one society may not be in tandem with those of another. as law exists for a society and not that society for the law, it becomes imperative that legislation and judicial hermeneutics should be ad rem to the experiences and lebenswelt of a given people. there is no doubt that nigerian society, in spite of foreign influences sequel to colonialism and missionary religions, still harbours beliefs in spiritualism, witchcraft and other preternatural and paranormal experiences. sometimes, spiritual powers attendant to these practices are utilized to others’ disadvantage not excluding causing their deaths. yet, the british-type court and judicial system operating in nigeria, as in many other common law countries, would flatly reject and disregard spiritually – related claims made before it in the exercise of its adjudicatory functions. hence, in re: opekun1, the court of appeal, ibadan division, held that ‘a court is a court of law where miracles or magic have no place in decision making’. although, the court refers to miracle or magic, its intendment in the light of some other decided cases to be seen anon, covers all issues related to extra-sensory phenomena. the main thrust of this paper is to discuss some experiences of these paranormal and spiritual matters, and critically examine some court decisions on cases involving references thereto. finally, the paper will jurisprudentially seek to find, in the light of traditional nigerian and african worldview, whether the courts in nigeria are right in relying on western ‘empirical’, and ‘rationalistic’ approach and knowledge in dealing with matters peculiarly traditional. there will be suggestions as to some way out. 2. some preternatural experiences for the purpose of this paper, the word ‘preternatural’ interchangeably used, as it were, with other kindred words such as ‘spiritual’, ‘supernatural’ and ‘extrasensory’, refers not to the powers of deities and spirits which are superhuman within the hierarchy of beings in traditional ontology as enunciated by metuh.2 it rather connotes those magical and occult experiences of man, which though within the powers of their human purveyors, are certainly outside the day-to-day natural and explicable realities that confront the average traditional african man. such experiences include witchcraft, juju, occultism, sorcery, charms, spiritual poisoning, black and sympathetic magic, and generally all ‘actions at a distance’ or what in local parlance is referred to as ‘spiritual remote control’. though some use can be made of some of these activities unto good such as for protective medicine, we point to them, in this essay, with reference to their bad use such as in hurting, maiming and killing human beings and *by ikenga k.e. oraegbunam, phd (law), phd (phil.), phd (rel. & soc.), med, ma, bth, ba, bphil, bl, professor and formerly head, department of international law and jurisprudence, faculty of law, nnamdi azikiwe university, p.m.b. 5025, awka, anambra state, nigeria. email: ikengaken@gmail.com; ik.oraegbunam@unizik.edu.ng. phone number: +2348034711211; and *aloysius enemali, dcl, jcl, llm, bl, bphil, bth, senior lecturer and head, department of canon law, faculty of canon law, catholic institute of west africa (ciwa), port harcourt, rivers state, nigeria. 1 (2002) 6nwlr, 583. 2 e. i. metuh, god and man in african religion, enugu: snaap press ltd, 1999, pp. 88-112. oraegbunam & enemali: criminal justice, spiritualism and judicial attitudes in nigeria page | 2 destroying their properties which can amount to serious crimes if committed within the adjudicatory parameters of our present laws. some of these experiences can be collated from oral interviews granted by victims or their doctors, and from written reports of same. ndiokwere for instance, reports a number of these experiences.3 an instance is that of one mr. julius ohuche who narrates a pathetic story of survival from a deadly poison prepared by an unnamed enemy and deposited in his farm in 1962. the poison, wrapped in a piece of tattered black cloth was tied to a piece of stick, which he, ohuche, touched and was instantaneously paralyzed from head to toe. it was only at the timely intervention of a well known native dibia that ohuche was saved. the victim claimed he vomited for two days, but the poison left a permanent mark on his body, as his mouth is bent and he winks abnormally about several times per second. another case in point is that of one steve nkwocha, a senior clerk with a construction company in port-harcourt, nigeria. he is paralyzed in one leg, drags it painfully and slowly when he walks, of course with the help of a walking stick. steve maintains that a certain black powdery substance was deposited on his office seat by an unnamed enemy who had not been happy with the recent promotion of the victim who hitherto was a junior clerk. but because steve had his preventive medicine, he was saved from immediate death. asked why he was still affected by the enemy’s poison in spite of his protective medicine, he said that the type of poison deposited by his unnamed enemy was a very deadly type. the two experiences above are instances of the phenomenon known as ‘poisoning’ (ime nsi or iko nsi). it causes a very deadly form of calamity when correctly administered. this has nothing to do with the european concept of poison which is any substance which can cause harm when wrongly taken or applied such as cyanide substances, etc. spiritual poisoning, on the other hand, can be administered by depositing the substance on anything belonging to the enemy who will be affected on close contact with the poison. it can also be transmitted through ordinary handshake, ‘thrown’ to an enemy, or deposited in a drink – water or wine, etc. yet another most important ‘spiritual’ attack prevalent in many african societies up till today is the phenomenon of witchcraft. though studies on this phenomenon reveal that there are types meant only for protection4, yet a good dint of it is still used in inflicting grievous bodily, spiritual or mental harm. a good example can be given with the death of a 29-year old man called joe, well loved by his people for his contribution to the development of his community. on that unfortunate day, joe and his sister were traveling home in a peugeot 504 when, at ofosu, a village on the way to benin, tragedy struck. no one quite knew what happened. somehow, the peugeot had veered sharply from its side of the road to hit with force, a trailer loaded with timber. joe’s hands and feet were ground to pulp. he died later in hospital. the sister survived. news of joe’s death spread in his town with the force of a sledgehammer, leaving young and old dumb with disbelief. only one explanation could account for his sudden death – witchcraft. oforowhe, his village, grounded to a halt. as he lay in state, dressed resplendently in white lace, the blood seeped through his clothes where the wounds were, further confirming the villagers’ suspicion that witches had cut short the life of their illustrious son. the women of the village in a war mood danced round the village calling on the gods to root out the witches who were responsible for this infamy. later, news came spreading like wild fire in the harmattan. two women, it was reported had started ‘confessing’ at the burial place. the alleged witches were beaten and prodded for the truth and soon began naming various people who had taken joe’s heart and dropped it into the stream. the suspected witches were, of course, rounded up and by the end of the week, 21 men and women were dead, most of them burnt alive.5 more so, some of the encounters with juju or black magic can also be garnered from literatures containing the personal experiences of the writers. the experiences of one james neal are quite illustrative. he went to take up a job in ghana in november 1952 as chief instigations officer in a newly established department that covered investigation and security. he saw this as a challenging job and was looking forward to putting his best into it. he however lamented that he was forced to give this job up because of juju. one of his shocking experiences is narrated in his book i became a target for juju.6 this is how he conducted an investigation against a section officer who extorted varying amounts of money from certain cocoa farmers by blackmailing them that unless they gave him so much, a new road under construction would pass over their land. 3 n. i. ndiokwere, search for security, benin city: ambik press, 1990, pp 33-49. 4 r. c. avazu, the witchcraft scourge: our self – defence, awka: o. c. making publishers, 2003, p. 1. 5 n. i. ndiokwere, op. cit, pp 47-48. 6 j. h. neal, ‘how i became a target for juju’ in j. neal, juju in my life, london: george g. harrap & co ltd., 1966. african customary and religious law review 1 (2020) page | 3 this section officer, kobla nyame, was arrested and charged to court but he was later released on bail. he however threatened that he would see a big juju man who will kill all those people who agreed to give evidence against him if they did not abandon the prosecution. in addition, he boasted that mr. neal and his assistant, mr. adjei would regret having brought the case against him. a few days later, two of the principal witnesses died suddenly. neal expressed his shock at this since ‘both had been extremely fit and healthy cocoa farmers’7 and wondered whether this was a mere coincidence. another drama that hit the case was that when nyame was brought into court for his trial, the presiding judge so suddenly fell extremely ill that the case had to be adjourned. the judge had a recurrence of the illness several times and each time this happened, the case was adjourned. at last, the case was concluded and nyame, the section officer was sentenced to two year’s imprisonment. as he was leaving the courtroom, he muttered something to the effect that his revenge would be striking at mr. neal soon. neal then recalled how, on many occasions afterwards, he found his tyres slashed, his radiator drained of water, car doors forced open with a steel bar, the car registration plate ripped off, various other damages done, and somebody poured juju in his car. he described how within a week of this case, he fell ill without warning and was rushed to a european hospital. he wrote that the series of tests showed a viral attack but that the exact cause of this could not be traced. after three weeks, he was discharged, but when there was no improvement a native doctor called tettey was summoned, who told neal ‘it was a juju attack that caused you to go to hospital, and because it was juju, the european doctors could not tell what was wrong with you’. thus, after all his harrowing experience in ghana, neal conclude among other things with the statement: ‘there is no shred of doubt in my mind today that the african, in his own mysterious ways has harnessed one of the strangest powers of all – the thing they call juju’.8 the above stories in this paper are relevant to the extent that they demonstrate that wrongs, injuries, and evil machinations of spiritually influenced nature which can be inflicted on another are replete in african traditional societies. many scholars of african traditional religion and anthropology attest to this fact. parrinder observes that in west africa there is a great fear of evil magic where direct poisoning is also possible’.9 metuh is aware that in africa besides the spirit agents of misfortune, witches and sorcerers are also harbingers of bad will. thus, he holds that even as ‘protective medicines and charms are good medicines, these medicines too can be abused by sorcerers to obtain their wicked and antisocial ends’.10 oduyoye, on the other hand, does not mince words in writing that in african traditional enclave, it is not impossible that one can summon the aid of evil powers against another.11 again, writing about the igbo of nigeria, basden observes that ‘there is a great deal of alleged intercourse with the spirit–world, and the custom of making juju is an almost daily affair’.12 even beyond the frontiers of africa, many scholars agree that most of the preternatural experiences are universal13. all these go to show that a reasonable traditional african man is quite convinced that there are so many forces around him -physical and metaphysical which sometimes affect him. this may perhaps vindicate tempels for whom, in african ontology, ‘being is force’ and ‘force is being’ (muntu).14 it is also crystal – clear to the african that another can harness either onto his good or quite against him these forces. 3. spiritualism and criminal justice system in nigeria it goes without saying that from the above accounts and many more, there are yet in nigerian and africa in general ‘mysteries’ which are still difficult to explain. but the question is: should civil law refuse to recognize these ‘mysteries’ and simply dismiss them as primitive notions nurtured by illiterates, miseducated or ill-equipped nigerians who have failed to imbibe the european culture in its totality? in what immediately follows, we shall be concerned with some nigerian criminal cases and consequent judicial decisions on matters relating to supernatural influences and the general attitudes of the courts thereto. in r. v. nwaoke15, for instance, the appellant was charged with murder of one nwoacha and was convicted of manslaughter and sentenced to 10 years imprisonment with hard labour. he appealed to west african court of 7 ibid., p. 26. 8 ibid., p. 191. 9 g. parrinder, west african religion, london: epworth press, 1969, p. 166. 10 e. i. metuh, comparative studies of african traditional religions, onitsha: imico publishers, 1992, pp 157-158. 11 m. oduyoye, ‘the medicine man, the magician and the wise man’ in e. a.a. adegbola (ed.), traditional religion in west africa, ibadan: sefer, 1998, p. 55. 12 g. t. basden, among the ibos of nigeria, lagos: university publishing company, 1983, p. 235. 13 cf. t. h. mbuy, understanding witchcraft problems in the life of an african: case studies from cameroon, owerri: high speed printers, 1992, p. 18; see also j. g. frazer, the golden bough: a study in magical religion, london: macmillan press ltd; 1922. 14 p. tempels, bantu philosophy, paris: presence africaine, 1969, pp 50-51. 15 (1939) 5 waca, 120. oraegbunam & enemali: criminal justice, spiritualism and judicial attitudes in nigeria page | 4 appeal (w.a.c.a) against this conviction. it was explained that the deceased was at one time the wife of the accused. she refused to continue to live with him and, as a result, the accused asked for the repayment of his £1.10s being the ‘head money’. both nwoacha and her mother promised to repay the money as soon as they could do so. the accused not being satisfied with these promises, brought a juju called ‘onye uku’, pointed it towards the deceased and said something like ‘since you refuse to pay me my money, this juju will kill you or since you refuse to pay me you shall no more eat or drink’. he left the juju in the house of the deceased. it was proved that nwaocha the deceased was much affected in mind by this juju and the threat. she became very depressed although there was no evidence that she stopped eating or drinking or that her physical health was in any was affected. six days after the accused had brought the juju, nwoacha went out to hang herself by the neck with a cloth from a tree so high that her feet hung six feet above the ground. butler lloyd a. g. (c.j.) nigeria, graham, pauland brooks j. j. said: there is no evidence whatever that the invoking of this juju, to the knowledge of the accused at the time he invoked it, would be reasonably likely to cause the deceased to take her own life, and in our opinion, that element of reasonable likelihood must be present in order to make section 310 applicable.16 hence, the appeal was allowed and the conviction and sentence quashed. okonkwo holds that it is not easy to agree with the reasoning of the court of appeal.17 the court seems to have placed undue weight on the vagueness of the evidence relating to the powers of the juju whereas in fact what ought to be looked for is the foreseeable capacity of the juju to constitute a source of fear to the native mind. and according to ojo in a place like africa where many people believe in the force of native medicine, such threats as these ought to have been severely punished. after all the accused left the juju in the house. the mere sight of this would continually terrify the deceased.18 for him, section 310 of criminal code ought to have been invoked. in r. v. egbuaba odo,19 the appellants (2nd and the 3rd accused) were convicted with the 1st accused by the judge of enugu-onitsha division of the high court on march 9, 1938 of perverting justice contrary to section 126 (2) of the criminal code. the three accused persons in the night of january 16, 1938 placed ‘magic powder’ in the courtroom of the idodo native court with the intention of influencing the district officer and the court members to enter a favourable judgement in respect of litigation in which the 1st accused was directly concerned and the 2nd and the 3rd were indirectly concerned. hence by doing so, each accused attempted by supernatural means to perverse the course of justice, an act which could readily have amounted to a contempt of court.20 the accused person put some black powder on the table and chairs in the courtroom as a charm in order that the district officer might decide the case in their favour. the trial judge accepted what the first appellant said: ‘we did not bring any poison to kill any, but medicine to make the white man give judgement in our favour’. they were convicted under section 126 (2) of the criminal code and they appealed to w.a.ca. kingdom c.j. delivering the decision of w.a.c.a. said: it seems advisable to point out that a person may lawfully hold a belief whether based on superstition or not, that by some intrinsically innocuous and inoffensive act, he can influence a decision of a court in his favour. the mere doing of such an act in the case cannot constitute an offence against section 126 (2) of the criminal code.21 the appeal against convictions of both appellants was therefore allowed, their convictions were quashed and a verdict of acquittal entered. more still, in akerele v. inspector gen. of police,22 the appellant was convicted under section 210 (6) of the criminal code in that on 10th august, 1954 at oyo, he unlawfully accused one taiwo amoke of being a witch. it was argued by the defence that the facts did not amount to an accusation because the appellant merely went to the complainant’s house to ask her questions whether it was true that she was witch and that she did kill one bode. but the prosecution on the other hand maintained that the appellant did more than this and that he did accuse the complainant of witchcraft, that she killed one bode and wanted to kill him (the appellant) also. the trial court accepted the evidence of the prosecution and rejected the evidence offered by the appellant. 16 ibid. 17 c. o. okonkwo, criminal law in nigeria, ibadan: spectrum books ltd., 2002, p. 211. 18 j. d. ojo, ‘the place of supernatural powers in the criminal law with particular reference to nigeria’ in nigerian behavioural science journal, vol. 1, no 1, 1078, p. 32. 19 (1938) 4 waca, 71. 20 a. j. yakubu, press law in nigeria, lagos: malthouse press ltd, 1999, p. 5. see also adeniji adele v. ogbe (1989) 9 nwlr, pt567, 650; awobokun v. adeyemi (1968) nmlr, 289; ezeji v. ike (1997) 2 nwlr, pt 486, 206, etc. 21 (1938) 4 waca, 73. 22 (1955) 21 n.l.r., 37. african customary and religious law review 1 (2020) page | 5 ademola j., delivering the judgement of the supreme court said: it appears to me that the short history behind this chapter of the code is to prohibit indiscriminate accusations of witchcraft and to stop the practice of trial by ordeal and the like by making them punishable. in some parts of the country, accusations of witchcraft are visited with trial by ordeal and the taking of sasswood or other poison in order that the person accused may show that she is not a witch. these in many cases have resulted in grave consequences and deaths. the object of the section of the code, to my mind is to stop such accusations which in some cases have led to unnecessary ordeal and deaths.23 the appeal was hence dismissed. in this decision, it does appear that the apex court was even blindfolded by the mere mention of witchcraft. this is clearly manifested by the fact that the court did not even make any modicum of effort to ascertain the veracity or not of what the prosecution stated. it immediately believed him against the appellant having heard the word ‘witchcraft’. again, in west v. police24 the appellant was charged under section 210 (d) of the criminal code of invoking prohibited juju. the appellant was quarrelling with her husband about money and some persons present were on the point of taking him away, whereupon the appellant said: ‘anybody who takes him away this night, let angulama nom-awo kill him and his family’ and when they said they would report her saying so, she repeated these words adding that whoever reported her ‘let him first put £200 before the juju’ on which account they did not take the husband away and went off. she was convicted on a charge that she ‘invoked a prohibited juju known as angulama nom-awo’. hubbard j., delivering the decision of the supreme court, held that the facts as proved did not in his view amount to an offence under section 210 (d) of the criminal code. he said that ‘the particulars in the charge sheet, which charge the appellant with invoking a prohibited juju, appear to show that the prosecution in error thought that the offence was committed by acting in contravention of the prohibited juju (angulama nom-awo) order-inconucil, 1951, which provides that ‘the worship or invocation of the juju known as angulama nom-awo is hereby prohibited’, this is not so’.25 according to hubbard j., it was the worship or invocation which was prohibited. he then concluded thus: after considering this matter carefully i have come to the conclusion that it would be an unwarranted stretch of language to speak of a person as being present at his own sole worship or invocation of a juju, and also that in a consideration of the whole sub-section it would appear that something more formal is intended that is revealed by the evidence, something in which several persons, certainly at least two person are concerned.26 the appeal was therefore allowed. it is not difficult to, of course, agree with the views of hubbard that the mere invocation of a prohibited juju should not be subject to criminal prosecution. but what of the situation where the invocation of a juju now leads to disastrous consequences? should the very important idea of legal ‘causation not be imputed to such invocation considering the worldview of a reasonable traditional african man? in r. v. udo aka eka ebong,27 after the investigation of the murder of the deceased had proved abortive, the local chief in the area invited the eighteen villages in the neighbourhood for the purposes of investigating the death of the deceased. juju was invoked for the purpose and it was the general belief of the people that the person who caused the death would go mad unless he confessed. eleven months later, the accused went to the chief and said that he had killed the deceased. the court held: in our opinion, the confession in this case was voluntary from the legal point of view and was properly admitted… to find otherwise would be getting perilously near to the fallacious theory that a genuine belief in witchcraft might be a possible defence to a charge of murder.28 considering this decision, aguda observes to his utter disappointment that while physical threats can vitiate voluntariness with regard to confession and thus render it inadmissible in line with section 28 of the evidence act, cap 112, laws of the federation of nigerian, 1990, threat of harm by metaphysical means has, however, been 23 ibid. 24 (1952) 20 nlr, 71. 25 ibid., p. 72. 26 ibid., p. 73. 27 (1947) 12 waca, 139. 28 ibid., p. 140. oraegbunam & enemali: criminal justice, spiritualism and judicial attitudes in nigeria page | 6 held not sufficient threat for this purpose.29 but in our humble opinion, invocation of juju as in the instant case is certainly a type of threat which ought to have been seen by the court as vitiating voluntariness and thus rendering the confession inadmissible. in gadam v. r,30 the accused believed that the miscarriage and mortal illness of his wife was due to the witchcraft of an old woman, and he killed the latter with a hoe. it was a finding of fact, which was not disputed, that the accused belief was bona fide and that a belief in witchcraft was prevalent in the community in which he lived. a strong west african court of appeal dismissed the appeal against the conviction for murder, holding the mistake to be unreasonable. citing its unreported decision in the case of ifereonwe v. r, west african court of appeal held that ‘where a man kills another in the belief that he is bewitched by him, the mistake could not be regarded as reasonable’.31 it has to be noted that bona fide mistake of fact is a defence in criminal law and discharges one from criminal responsibility if such a mistake, according to section 25 of the criminal code, is honest, reasonable and relates to the existence of any state of things, as it is believed to be. the issue in the instant case is whether a bona fide mistake cannot be regarded as reasonable simply because it concerns a spiritual phenomenon, in this case, witchcraft. no doubt, the above decision of the court perfectly demonstrates the blatant rejection with which the british-type courts treat issues relating to spiritual influences. again, in r. v. konkomba,32 the accused believed that the deceased was the cause of the death of one of his brothers and the illness of the other, and consequently killed him. this was held to be murder. a plea of selfdefence under sections 286 and 288 of the criminal code was rejected as unreasonable. brett and mclean (1974) commenting on this case say ‘it is with respect difficult to see how the accused’s fear of immediate danger to his own life can constitute provocation’. the views of the above learned authors can be supported, as the facts do not reveal sufficient conditions for the application of the defence of self-defence on the bases of provocation. yet, if the court had paid serious attention to the defence of ‘reasonable mistake of fact under section 25 of the criminal code, which fact, under diligent and comprehensive consideration can either be physical or metaphysical, the accused could have been relieved of criminal responsibility. finally, one of the most recent court decisions regarding preternatural issues occurred in the case of aiguokhian v. state.33 the facts are that between 8 a.m. and 10 a.m. on the day of the incident which led to the death of the deceased, the appellant got to a very big farm of corn, cassava and yam where he saw a deer very close to him at a distance of about 22 feet. the appellant aimed his gun shot at the deer. the deer fell and when he went there, he saw it was a very big deer. he now decided to cut it into pieces to enable him carry the dear. the appellant claimed that it was when he was cutting the deer into pieces that he discovered that he was holding a human being, that the animal was a human being who turned out to be the deceased whom the appellant recognized. at the conclusion of the trial, the trial court refused to believe the appellant’s story and found him guilty of murder under section 316 and sentenced him to death under section 319 (1) of the criminal code. the appellant’s appeal to the court of appeal was dismissed and the judgement of the trial court affirmed. a subsequent appeal to the supreme court which was based on the plea of defence of mistake was also unanimously dismissed. no doubt, falsehood on the part of the accused is probable even as it may still be possible that the accused is relating his true experience of what happened based on the traditional african belief and in the reality of totems and totemism. thus, while any of the above is tenable, what is very troubling is the cajoling and caricaturely manner of rendition with which pats-acholonu jsc read the lead judgement in flagrant rejection of the accused’s defence of bone fide mistake of fact as provided by section 25 of the criminal code. pasts-acholonu states: …this testimony is the most bizarre story i have heard since i qualified as a legal practitioner… when the statement or evidence of a witness is of such obvious exaggerated proportions that it enters into the realm of either fantasy or is an affront to intelligence or is reckless in its utterance, it should be ignored, treated with utmost contempt and rejected in its entirety. such evidence would be shown to be so manifestly hostile to reason and intelligence as to be nigh impossible that it should be believed by the court.34 29 t. a. aguda, the law of evidence, ibadan: spectrum books ltd., 1999, p. 52. 30 (1954) 14 waca, 442. 31 t. a. aguda, op. cit., p. 105. 32 (1952) 14 waca, 236. see the comment of breth and mclean cited in madaciken & t. a. aguda (eds), the criminal law and procedure of the six southern states of nigeria, lagos: 1974. 33 (2004) 7 nwlr, 566. 34 ibid., pp. 569-570. african customary and religious law review 1 (2020) page | 7 this statement is certainly a manifest disregard and total exclusion of the possibility of a human being turning into an animal and vice versa, a phenomenon which is commonplace in traditional igbo extraction from which the supreme court judge is supposed to take his primordial roots. the above presentations constitute only a tip of an iceberg of judicial attitudes to juju and other related cases before our courts in the execution of criminal justice. in what follows we shall be concerned with a philosophicolegal critique of these attitudes in the light of african worldview. we shall at the same time make our recommendations. 4. a jurisprudential critique of the judicial attitudes in this paper we have adumbrated some instances of grievous harms inflicted on respective victims via supernatural means. we have equally discussed how these injuries issue in criminal matters before the courts and the attitude of these courts thereto. it now remains for us to evaluate these attitudes with a view to deciphering the better path that should be followed by our justice system. that philosophy as jurisprudence is entrusted with this function is due to the fact of its attitude of maintaining an integral focus on its objects of study with its comprehensive approach. but one of the major obstacles to contend with in this study is couched in the question: which philosophy will perform this role? this poser is particularly germane as western philosophy regards supernatural influences generally as embarrassment. writing about the western philosophical attitude to supernaturalism, atabong notes that the ‘idea of magic and witchcraft’, for instance, ‘is a restless tendency of the human mind to conceive of and aspire to more than it can achieve by natural means’.35 therefore, western philosophy according to this understanding sees all these supernatural beliefs as figments of the mind. and this, despite the fact that practice of magic, sorcery, witchcraft, etc is not lacking even in western society.36 hence, the task of evaluating the above judicial attitudes, no doubt, will rightly belong only to that philosophy which takes into consideration the entire worldview of the african. such a philosophy may be designated african philosophy which in the words of okoko denotes ‘a path to a systematic, coherent discovery and disclosure of the african as a being-in-the-african-world’.37 in our context, it will be the prerogative of african philosophy of law armed with the skills to probe into the nature of african worldview. there is no gainsaying therefore that a people’s worldview articulates the way in which they experience reality. this is why kraft calls it ‘the ‘control box’ that governs the application of the people’s conceptualization of their relationships to reality’.38 again, for onuoha, a worldview ‘connotes a set of values, concept, attitudes and images which guide man’s perception and interpretation of facts and events’.39 in the same manner, okafor regards it as the ‘totality of the concepts of the world, physical and metaphysical, held by a people and constitute basic notions underlying their cultural, religious and social activities’.40 it follows from the above descriptions that worldview of a people is quite indispensable in the way they view reality. in other words, their being and acting including judicial attitudes are supposed to be predicated on their worldview. in african lebenswelt, reality is divided into the visible and the invisible. that is to say, apart from the physical world, an important ingredient of african worldview is the belief in the spiritual. this is perhaps why mbiti holds that the african is a ‘deeply religious being in a religious universe’.41 be that as it may, the first point to be considered in this discussion is the thorny issue of proving ones case before the court in matters relating to preternatural crimes such as enunciated above. this demand particularly concerns the question of evidential burden and standard of proof required for founding a conviction in dispensation of criminal justice. generally, in english legal system, burden of proof in criminal cases is on the prosecution and never shifts. that is to say, the onus of proof is heavy on him who asserts against the accused. and this can only be discharged by proving the guilt of the accused beyond reasonable doubt as provided in section 138 (1) of the evidence act. this legal principle certainly is built upon a procedural rule, which states that ‘every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty’.42 in the light of the above, therefore, securing the conviction of the accused such as in r. v. nwaoke43 would mean that the prosecution needs to prove beyond reasonable doubt that the said juju, ‘onye uku’, has the power of really influencing the deceased to the point of committing suicide as he did. and also in several cases involving witchcraft, the particular 35 g. atabong, ‘what does one believe? letter to cameroon panorama’ in t. h. mbuy, op. cit., p. 7. 36 cf. j. d. ojo, art cit., p. 28; see also t. h. mbuy, op. cit., p. 18. 37 c. b. okoyo, ‘african philosophy: a process interpretation’ in africana marburgensia xv, 2, 1983, p. 8. 38 c. kraft, christianity and culture, new york: orbis books, 1979, p. 53. 39 e. onuoha, four contrasting worldviews, empress publishing company ltd., 1987, p. 26. 40 f. u. okafor, igbo philosophy of law, enugu: fourth dimension publishing co. ltd., 1992, p. 3. 41 j. s. mbiti, african religions and philosophy, london: heinemann, 1969, p. 15. 42 constitution of the federal republic of nigeria, 1999 (as amended), section 36(5). 43 r.c. nwaoke (supra). oraegbunam & enemali: criminal justice, spiritualism and judicial attitudes in nigeria page | 8 acts of the witches (actus reus) in conjunction with their actual intention (mens rea) to so harm the victim must dully be proved. these series of proofs, no doubt constitute an uphill task of herculean magnitude in the dispensation of justice vis-à-vis juju-related causes. we are too, not unmindful of the rationale behind the above principles of criminal jurisprudence. it is an oftquoted maxim that ‘it is also a demand before the justice system that there should be a fixed standard of measure in relation to adjudicatory procedure in consonance with the need for stability of law. otherwise dispensation of justice will be a matter for the whims and caprices of individual judges. however that may be, the above ‘slippery slope’ argument will hold sway, if and only if all efforts have been made. the doctrine of expert evidence in our view can still constitute a leeway or panacea to the judicial problem in question. in adjectival law, it is trite that the opinions of experts are generally speaking, regarded as relevant and therefore admissible.44 an expert is a person who being a peritus, is especially skilled in the field in which he is giving evidence. according to this view, lawyers in their relevant jurisdictions, doctors, forensic analysts, those knowledgeable in customary law, and generally men of science and arts etc can be regarded as experts under relevant conditions. it is equally worthy of note that a person can be seen as an expert in a particular field even though he did not acquire his knowledge after a systematic tutoring in the particular field, provided that he has had, in the opinion of the court, sufficient practice in the particular field of knowledge as professional or as amateur, to make his opinion reliable.45 therefore from this doctrine, it seems that nothing will debar a witchdoctor, juju priest, diviner or generally a traditional medicine man from being regarded as an expert for the purpose of giving expert opinion in the court about juju-related and witchcraft cases. it is the popularity of their expertise, for instance, that renders this group of people highly respectable and consulted in african traditional society. the nature of this expert evidence in relation to preternatural issues should not necessarily be seen to be a source of an intractable problem for the courts any more than any other type of evidence would since its admissibility will also be subject to the laid down principles of the existing law of evidence. for instance, the said expert is not shielded from the rule that before any expert begins to give evidence, he must first give his qualification and experience.46 however, the legal demand on the expert to give the basis of his whatever opinion47 will certainly mount a challenge to african spiritual experts who are economical with the explanation of their modus operandi. and of course since the court is not bound to accept an expert opinion and act on it especially where such opinion conflicts with common sense, it should feel free to avail of the ser vices of these ‘supernatural’ experts in the adjudication of cases before it. in case of conflicts of expert opinions in this regard, the court may either require corroboration or pick and choose from the opinions, provided it is acting debito justitiae. but a major problem still presents itself: what is the measure of ‘common sense’ or ‘reasonableness’, notions upon which law and administration of justice are fundamentally built? is the idea of common sense or reasonableness really common to all people of all cultures or is it conditioned by specific time and place? these questions are congenial since the law or the jury system of trial is always concerned with the view of the ‘reasonable’ man. this is manifest in an oft-quoted statement accredited to awolowo that ‘law is nine-tenths common sense plus one-tenth technicality’. therefore, who is really the reasonable man in a community that believes in the existence of witches and juju-related issues? certainly, our courts seem not to have convincing reasons for holding the belief on witchcraft, juju, and allied cases ‘unreasonable’. here, for instance, is the statement of the trial judge in ifereonwe v. r (unreported), a case involving an action that was based on belief in witchcraft: i have no doubt that a belief in witchcraft such as the accused obviously has is shared by the ordinary members of the community. it would however in my opinion be a dangerous precedent to recognize that because a superstition, which may lead to such a terrible result as is disclosed by the facts of this case, is generally prevalent among a community, it is therefore reasonable. the courts must, i think, regard the holding of such beliefs unreasonable.48 it is, unfortunately, on this judicial conviction that gadam v. r49 another witchcraft case was decided. such a firm statement of the law, though approved by such strong authority, nevertheless requires further examination. its obvious implication is that the standard of what is reasonable is the standard of the educated man who does not hold a superstitious belief in witchcraft. the decisions in ifereonwe and gadam are in effect decisions of policy 44 cf. evidence act, section 57. see also t. a. aguda, op. cit., p. 99. 45 t. a. aguda, op. cit., p.100. 46 f. nwadialo, modern nigerian law of evidence, lagos: university of lagos press, 1999, p. 203. 47 evidence act, section 65. 48 see c. o. okonkwo, op. cit., pp 105-106. 49 supra. african customary and religious law review 1 (2020) page | 9 based on the deterrent and educative theories of punishment50 and a belief in the maintenance of standards which many in the community cannot reach. besides, one may ask, what makes a particular belief superstitious and another not? what is the standard? is it bringing the western worldview to be a judge on the african traditional beliefs? there is no gainsaying the fact that people act according to their beliefs. it is equally a cardinal principle of comparative study of religion that the value of a particular religion should not be sought ab extra, that is, via extraneous canons. to a large extent, one needs to take on the role of an adherent in order to fully understand the tenets and symbolisms thereof. this is the theory of ‘symbolic interractionism’ as used in the social sciences.51 certainly, one may argue that some standards should be maintained, and yet suggest that they should not be set impossibly high. when the lawmaker uses the word ‘reasonable’, does it mean and are the courts to interpret it to mean what the enlightened few would regard as reasonable or what the ordinary man would regard as reasonable? to take the former view is surely to do violence to the word ‘reasonable’. given the diversity and relativity of worldviews and cultures,52 it seems that the standard of what is reasonable in a community is the standard of reasonable man in that community, ‘the ordinary’ man. it is that standard however difficulty to ascertain which is the safest to adopt, especially in a democratic society and in criminal justice system where punishment is the outcome of conviction. this is also the opinion of okonkwo when he holds that ‘the courts should adopt as the standard of ‘reasonableness’ the standard of the general community from which an accused comes, even if this involves opinions or beliefs unacceptable to the judges themselves and the educated minority.53 hence, such court decisions as in gadam, ifereonwe, kokomba, aiguokhian in which defences of reasonable mistakes of facts were pleaded might have been otherwise if proper construction had been given to the word ‘reasonable’. this is certainly the view of the northern region high court in lamba kumbin v. bauchi native authority54 on the ‘reasonableness’ of foresight under the penal code definition of culpable homicide. it holds thus: ‘… after the court has given due consideration to the person’s way of life, it must apply the ‘reasonable man’ test to the average person in that way of life…’55 therefore, it is our considered view, that it will tantamount to a cruel mistake and a showcasing of culpable limitation if the courts in nigeria would readily either visit with insufficient consideration, shy away from or treat with undue rejection criminal causes that come before them simply because these causes are of metaphysical nature. if the existing court system can admit confessions of witchcraft crimes such as it did in r. v udo aka eka ebong56 and if oaths, purely spiritual acts invoking the name of the most spiritual being, god, can be administered in and by our courts, then the courts will have an obligation to employ a reasonably comprehensive approach to spiritually influenced cases before them. it should be remembered that oath taking is the religio-legal basis of the very important idea of affidavit and the notion of perjury. thus, the courts should bear in mind the anthropological nature of man who is composed of a physical and a spiritual dimension, body and soul. the physical is not all that there is. there is equally the psycho-pneumatological aspect in any holistic anthropological consideration. yes, the two major criminal legislations operating in nigeria today namely, the criminal code act, cap 77, laws of the federation of nigeria, 1990 (for the south) and penal code law, cap 89, laws of the northern states of nigeria, 1963 (for the north) contain clear provisions on trial by ordeals, witchcraft, juju and criminal charms.57 yet it appears that the general intendment of these provisions, as ademola, j. observes in akerele v i.g.p58 is nothing more than to prohibit indiscriminate accusations of witchcraft and to stop trial by ordeal. this is a welcome development. but on a deeper reading however, one does not fail to see that witchcraft and juju related crimes, heinous as they are, are trivialized by the statutory fact of treating them as mere misdeameanours attracting not more than two years imprisonment with or without fine.59 this is a clear indication that such cases which often can lead to the death of another man are not treated with sufficient consternation which they deserve. it is only probably ‘possession of criminal charms’ that is regarded as felonious punishable as it were, with 5 years imprisonment.60 but even at that, it seems the evidential constraints inherent in the existing legal and procedural onus and standard of proof will surely constitute a clog in the wheel of dispensation of justice in matters relating thereto. it will really be a heavy burden to discharge while proving the ‘criminal’ nature of the charms without which proof conviction may not be secured. 50 j. m. elegido, jurisprudence, ibadan: spectrum books ltd., 1994, pp 214-216. 51 m. haralambos & r. m. heald, sociology: themes and perspectives, new delhi: oxford university press, 1980, p. 544. 52 a. giddens, sociology, oxford: polity press, 1993, p. 36. 53 c. o. okonkwo, op. cit., p. 106. 54 (1963) nnlr, 49. 55 ibid. 56 supra. 57 see criminal code, sections 207-213; see also penal code, sections 214-217. 58 supra. 59 see criminal code, section 210; and penal code, section 216. 60 see criminal code, section 213; and penal code, section 217. oraegbunam & enemali: criminal justice, spiritualism and judicial attitudes in nigeria page | 10 it therefore becomes necessary that legal system in nigeria should begin to also look inwards in view of solving the numerous preternatural criminal problems that bug the citizens. law is made for man and not man for the law. it is for maintenance of peace, order and justice whether among the educated in the urban city or among the illiterates in the suburb. the inevitable demand before the justice system, in this connection, is to seek for a genuine way of effecting legal inculturation or at least real indigenization in order to be able to comprehensively address the conflict situations of the people. there is no doubt that the present court system in nigeria is comprised of judicial apparatuses bequeathed to us as colonial legacies often without due regard to the autochthonous sensibilities. it seems that unless our courts adapt the existing legal system to our local needs in addition to our own inputs, a lot of societal conflicts especially those under discussion herein will either ever remain unresolved or treated with ‘judicial injustice’. 5. conclusion this paper has addressed some few points. it is convinced that grievous harms can be inflicted through spiritual means. it has also observed that when these issues are taken before the court, due to procedural limitations, they do not receive proper remedy in spite of the maxim: ubi ius ibi remedium. our paper, therefore, has suggested a need for utilizing whatever we have to arrive at justice. although africa of today is a hybrid; yet certain beliefs and convictions die hard. the powers of native medicine or juju and those of witchcraft are mainly supernatural powers and may not be ‘scientifically’ analyzed through western approach. to get the result, it is strongly recommended that opinions of witchcraft detectors and doctors, juju priests and the like be strictly seen as those of men of science and arts which may be relevant and hence admissible. one will certainly expect conflicts of opinion in actual practice. but at each time, there ought not to be fear since the courts still occupy the centre stage, as in any adversarial system of adjudication, towards the final determination of any case before it. besides, the nigerian government should now set up research institutes for studies in traditional medicine properly staffed with medical doctors, native doctors, psychologists, botanists, pharmacists, lawyers, and even priests. it would be theirs to investigate the extent to which these powers can be harnessed unto progress rather than for destruction. it would equally be an opportunity for proper study of the activities of witches, wizards and juju makers for the purpose of admitting expert opinions for genuine administration of justice. african customary and religious law review (acarelar) 5 (2024) 47 | p a g e one person company under the companies and allied matters act 2020: a step in which direction?* abstract the companies and allied matters act (cama) 2020 has introduced groundbreaking reforms to nigerian’s corporate legal landscape, including the recognition of one person company. characterized by a single shareholder, director and member, one person company offers unparalleled flexibility and management simplicity, making it an attractive option for sole entrepreneurs and small business owners. using doctrinal research methodology, this paper examined the one person company concept under cama 2020, exploring its features, benefits and challenges. through a comprehensive analysis of the legal framework, this paper considered whether this innovation is a step forward or backward for nigerian businesses and the economy. the findings revealed that one person company offers enhanced flexibility, simplicity and asset protection, but also present challenges, including the absence of a structured statutorily framework for one person company practice and procedure and a potential for abuse. to leverage the benefits of one person company, the researchers recommended the establishment of a comprehensive regulatory framework to govern one person company in nigeria. keywords: one person company, cama, direction, business, nigeria 1. introduction the companies and allied matters act1 has introduced transformative reforms to nigeria’s corporate legal framework, ushering in innovative provisions designed to enhance business efficiency, flexibility and competitiveness. a notable highlight of these reforms is the introduction of the one person company concept, which permits a single individual to form and own a company. this groundbreaking development marks a significant shift towards more business-friendly corporate regulations, enabling individuals with innovative startup ideas to leverage the benefits of separate legal personality. historically, nigerian law required a minimum of two persons to form a company.2 however, the one person company concept paves the way for modern and dynamic legislation, facilitating growth and greater regulation of the corporate sector. as the name suggests, one person company consists of a single member, offering a new paradigm for entrepreneurship.3 the one person company framework provides unique opportunities for individuals to establish organized businesses, accessing benefits of private limited companies, including credits, bank loans, limited liability, legal protection and market access, all under the umbrella of a separate legal entity.4 the inclusion of one person company concept in cama, 2020 represents a historic milestone in nigeria’s legal landscape, encouraging the incorporation of micro businesses, individual entrepreneurship, and solo start-ups through a simplified legal regime. this move aims to alleviate the burden of complex legal compliance, empowering individual entrepreneurs to contribute to economic growth and generate employment opportunities. this paper therefore explores the one person company concept under cama 2020, examining its potential implications and challenges for nigeria’s businesses. 2. the meaning of one person company although the cama 2020 introduced the concept of one person company, it failed to provide corresponding definition. instead, it defines a private company, which includes one person company, as a company stated in its memorandum of association to be a private company.5 the literal meaning of one person company connotes a company owned by one person.6 section 2(62) of the indian companies act 2013 defines one person company as a company with only one person as its member. shameema and hetha argue that the one person company is a revolutionary concept, a hybrid of sole proprietorship and company forms of business. 7 one person company resembles a sole proprietorship but differs in that it offers the status and advantages of a company. this feature of one person company is seen as a means to harness the talent pipeline of developing global business people, particularly start-up ventures.8 as a form of business organization, one person company is a private company, by meshach nnama umenweke, phd, ficmc, acti, bl, professor of law and former dean, faculty of law, nnamdi azikiwe university, awka, anambra state. e-mail: mn.umenweke@unizik.edu.ng, tel:08037090048 *onyeka christiana aduma, llb, lb, llm, phd, senior lecturer and head, department of commercial and industrial law, faculty of law, nnamdi azikiwe university awka, email: co.aduma@unizik.edu.ng, tel: 08038725994. 1 companies and allied matters act 2020 (hereinafter referred to as cama) 2 cama 1990, s 18 (1) 3 c sabarnee, ‘one person company and limited liability on its members’ (2014) 3 company law journal, 1. 4 salomon v salomon & co. ltd. (1897) ac 22. 5cama, s 22(1); s.394 categorizes certain private companies as small companies for purposes of financial statements. 6b miao, ‘a comparative study of legal framework for single member’, (2012) 5 (2) journal of politics and law 312. 7v shameema and p hetha, ‘one person company an ideal approach for transforming new age business’, (2016) 5 (11) abhinav -international monthly refereed journal of research in management & technology, 1. 8see h gesell and k v hulle, european corporate law (baden-baden: nomos, 2006) 3; t l mary, ‘relevance of one person company’, (2017) 2 (1) international journal of trend in scientific and research development, 1317. mailto:co.aduma@unizik.edu.ng umenweke & aduma: one person company under the companies and allied matters act 2020: a step in which direction? 48 | p a g e incorporated with an individual as its only member,9 wholly owned by one person. according to hakim, the owner’s liability is limited to the allocated share capital10 one person company is a private company, as evidenced by the register of members. the operative determinant of one person company status is not legal or beneficial ownership of shares, but rather the register of members. if the register contains only one name, the company is a one person company, regardless of the number of shareholders or legal persons beneficially entitled to shares. perhaps, if the register of members lists more than one member, the company cannot be considered a one person company, even if all other members except one have died or been dissolved.11 in randhawa & anor v turpin & anor, 12the company’s register of members listed two members, including belvedere estates limited, which was dissolved in 1996 but remained on the register. the english court of appeal held that a non-existent person’s name on the register must be treated as a member for statutory purposes, regardless of dissolution.13 3. merits and demerits of one person company the introduction of one person company as a private company in nigeria is undoubtedly a step towards promoting ease of doing business in the country. however, like any noble idea, it has its advantages and disadvantages. the primary motivation for shareholders to incorporate a one person company is the desire for limited liability.14 by incorporating as a one person company, the business gains the benefits of a separate legal entity, including the capacity to enjoy legal rights and assume legal duties distinct from its members. this separation of identity enables the company to operate independently, making it an attractive option for sole proprietors and partners seeking to formalize their business.15 unlike sole proprietorships, where personal assets are at risk, in the event of business failure, a one person company ensures that the sole member’s personal property is protected from business liabilities.16 this protection is a significant advantage, as entrepreneurs cannot control unfortunate events in business. securing personal assets is crucial if the business encounters difficulties. a one person company provides this security by limiting liability. furthermore, the company’s status provides additional opportunities to raise capital due to its improved creditworthiness, broadening its financial foundation. as a corporation, a one person company offers the benefit of perpetual succession, ensuring that the business can continue operating even in the event of the owner’s death or incapacity. this allows profitable business to persist, regardless of the owner’s circumstances.17 thus, as a hybrid entity, one person company combines the benefits of sole proprietorship and limited liability companies, offering legal personality and perpetual succession. this unique structure enables the sole member to assume multiple roles, such as director, member, managing director and employee, without hindrance. the privy council’s ruling in lee v lees air farming ltd18 supports this flexibility, establishing that a person can enter into contracts with the company in different capacities, recognizing the company and its members as separate legal entities. additionally, one person company offers increased privacy, as the sole shareholder’s identity and business dealings remain confidential. decision-making processes are streamlined, allowing for swift and efficient control by the sole shareholder. with fewer regulatory requirements, the compliance burden is significantly reduced. the formation and registration processes are straightforward and efficient, leading to lower administrative and compliance costs, which in turn reduce overhead expenses. the sole shareholder maintains control over business operations and decision-making, enabling swift action and adaptability. moreover, one person company finds it easier to secure loans from banks, as financial institutions prefer lending to companies over proprietary firms. in fact, banks often require entrepreneurs to convert their firms to private limited companies before approving funds, making it advantageous to register as a one person private limited company from the outset. 9 cama, s 18 (2) 10d hakim, ‘one person company: a new form of companies introduced in the companies’ law no. 159 of 1981’,<https://www.sadanykhalifa.com/en/single-blog/one-person-company-a-new-form-ofcompanies-introduced-in-thecompanies39-law-no-159of-1981>accessed 8 august 2024. 11 randhawa & anor v turpin & anor, (2017) ewca civ. 1201. 12 (2017) ewca civ. 1201. 13 ibid, paras 83 & 84. 14d goyal, ‘advantages and disadvantages of one person company’, https://www.taxguru.com> accessed 8 august 2024. 15bauchi state government & ors v arewa ceramics ltd & ors (2019) lcn/13074 (ca); companhia brasileira de infrastrututira v cobec (nig.) ltd (2004) 13 nwlr (pt 890) 376, 395. 16c e halliday and g c okara, the efficacy of one person company under the companies and allied matters act 2020: lessons from singapore and india’ (2021) 7 (1) unizik law journal, 134l. 17z a yun, ‘company with the pros and cons of legislation’, (2001) china daily, june 3, p. 74; r b cheffins, ‘using theory to study law: a company law perspective’, (199) 58 (1) the cambridge law journal, 99. 18(1960) 3 all er 420; b a bukar, ‘expanding the scope of business activities under the companies and allied matters act: oneperson companies and partnerships in focus’, (2021) 8 (1) nau.jcpl, 16. https://www.sadanykhalifa.com/en/single-blog/one-person-company-a-new-form-ofcompanies-introduced-in-the-companies39-law-no-159-%20of-1981 https://www.sadanykhalifa.com/en/single-blog/one-person-company-a-new-form-ofcompanies-introduced-in-the-companies39-law-no-159-%20of-1981 african customary and religious law review (acarelar) 5 (2024) 49 | p a g e a one person company boasts a straightforward structure regarding board composition and management. with only one director, decision making is unhindered by the need for approval from others or the requirement to form a quorum. additionally, the company is exempted from holding annual or extraordinary general meetings,19 simplifying management and reducing administrative burdens. instead, resolutions can be passed through written communication, signed and dated by the sole member.20 as a small company, a one person company is also exempted from appointing auditors, as mandated in section 401(1) of cama. furthermore, there is no requirement for a secretary or independent directors, and the company is not obligated to maintain a minutes book or register of secretaries.21 these exemptions result in significant cost savings. in terms of contract formation, a one person company is not mandated to have a common seal, allowing for alternative methods of document authentication.22 this flexibility has simplified the process and reduced formalities, making it an alternative option for sole entrepreneurs and promoting a more inclusive business environment. however, as a private company, a one person company is restricted from soliciting public deposits or investments.23 moreover, the blurred lines between ownership and control have raised criticisms about the practice. the secrecy afforded to single shareholder in a one person company can also be exploited for illicit activities, such as money laundering. despite this drawback, the benefits of a one person company far outweigh the drawbacks. accordingly, sachin, former minister of indian corporate affairs summed the advantages of one person company as follows: small entrepreneurs can now set up ‘one person companies’ to directly access target markets rather than being forced to share their profits with middlemen... this would provide tremendous opportunities for millions of people, including those working in areas like handloom, handicrafts and pottery. they are working as artisans and weavers on their own, so they don’t have the legal entity as a company. but the opc would help them do business as an enterprise and give them an opportunity to start their own ventures with a formal business structure.24 4. one person company under cama 2020 cama is the principal legislation governing the formation and operation of business entities, as well as nonbusiness entities in nigeria. to promote ease of doing business and adapt to new realities, section 18 of cama now permits a single individual to form and incorporate a company, unlike the previous requirement of a minimum of two persons.25 this makes it statutorily possible for one person to incorporate and own private companies in nigeria. formation of one person company one person company being a private company is subject to the same formation requirements as other private companies. the cama 2020 permits a single individual to form and incorporate a private company, provided they meet certain criteria.26 the logical consequence of this development is that many individuals who were previously deterred by the requirement of two or more people coming together to register a company will now be encouraged to incorporate, as the burden has been lifted. this change is expected to lead to an increase in company registrations and promote entrepreneurship in nigeria. this provision applies to both nigerian citizens and foreigners. however, foreigners27 must also comply with relevant laws, such as immigration and investment promotion laws, governing their entry, residence and business activities in nigeria.28. to incorporate a one person private company in nigeria, entrepreneurs must comply with the requirements of cama relating to private companies. after incorporation, all formalities and compliance provisions of cama applicable to private companies limited to shares formed by two or more people also apply to one person company, unless specifically excluded. 19cama, s 237. 20 ibid, s 259. 21 one person companies that are small companies are exempted from having a secretary. s 330 cama 22 cama, s 98. 23 ibid, s 22 (5) (b). 24j aashna, ‘an expository analysis of one person company concept: is it an arrow shot in the dark or is it serving its purpose?’ <http://lexquest.in/expository-analysis-one-person-company-concept-arrowshot-dark-serving-purpose> accessed 10 august, 2024. 25cama, s 18(2) states that ‘one person may form and incorporate a private company by complying with the requirements of this act in respect of private companies’. 26cama, s 18(2) the individual must be solvent, mentally sound, as least 18 years old, not disqualified under cama from being a director of a company. see s 20 cama. 27individuals or companies 28cama, s 20(4). umenweke & aduma: one person company under the companies and allied matters act 2020: a step in which direction? 50 | p a g e exemptions of one person company one person companies are subject to many of the same regulations as other companies; however, cama provides certain exemptions to encourage innovation and reduce bureaucratic hurdles. these exemptions aim to facilitate the growth and development of one person company, enabling it to thrive in nigeria’s business landscape. thus, cama mandates that every company, except for ‘small companies,29’ must have at least two directors30 and a secretary.31 however, one person company that qualifies as small companies are exempted from this requirement. in such cases, the sole member can serve as the general meeting, board of directors and secretary for all purposes under the cama, eliminating the need for additional officers and associated costs. conversely, for one person companies that do not qualify as small companies, the requirement to have two directors and a secretary would be impossible. it would be absurd and costly for a company with only one member to appoint and pay two directors and a secretary. notably, the cama permits one person company to have a single director, provided their annual turnover does not exceed n120 million and their net asset value does not exceedn60 million. 32the provision acknowledges the unique nature of one person company and offers a practical exception to the general rule. as a one person company, the sole shareholder is not required to hold annual general meetings,33 a typical requirement for companies. this exemption is granted because the sole shareholder is the sole decision-maker, eliminating the need for a platform to review financial performance, vote on resolutions, or elect directors and auditors. in a one person company, the sole shareholder can make decisions without the need for a formal meeting, streamlining the decision-making process. this exemption is specifically provided for under section 237(1) of cama thus: except in the case of a small company or any company having a single shareholder, every company shall in each year hold a general meeting as its annual general meeting in addition to any other meeting in that year, and specify the meeting as such in the notices calling it; and not more than 15 months shall elapse between the date of one annual general meeting of a company and the next. the provision in section 237(1) cama clarifies the distinction between a small company and a one person company by exempting them from holding general meetings. this exemption is reiterated in section 240(1) cama, which states: “with the exception of small companies and companies having a single shareholder, all statutory and annual general meetings shall be held in nigeria”. however, section 240(2) cama allows companies to hold general meetings electronically, provided they comply with the company’s articles. regarding the resolution process for small and one person company, section 259 cama provides: ‘all resolutions shall be passed at general meetings and are not effective unless so passed, but in the case of a private company a written resolution signed by all the members entitled to attend and vote is as valid and effective as if passed in a general meeting’. this provision raises a question: how does this apply to a one person company, which is a private company with only one member? the language “signed by all the members entitled to attend and vote” is unclear in the context of one person company. to address this, a more specific provision or interpretation is needed to ensure clarity in the resolution process for one person companies. moreover, as a one person company operating as a small company under section 394 cama, the requirement to file financial statement is simplified. only modified financial statements are required,34 exempting the company from filing a profit and loss account and balance sheet. additionally, cama typically requires companies, except dormant and small companies, to appoint auditors to ensure the creditability of financial statements. however, for one person company that qualifies as small companies, this requirement is waived.35 the audit process is designed to mitigate the agency problem between shareholders and directors, but in a one person company, this separation does not exist, making the audit process an unnecessary formality. by exempting one person company from audit requirements, the cama recognizes the unique nature of these entities and eliminates unnecessary costs, allowing them to focus on growth and development. this exemption is a significant advantage, particularly during the company’s formative stages. 29in this regard, the cama provides that a company qualifies as a small company in relation to its first financial year if, in that year: (a) it is a private company; (b) its turnover is not more than n120,000,000 ; (c) its net asset value is not more than n60,000,000; (d) none of its members is an alien; (e) none of its members is government or government-affiliated; and (f) the directors hold at least 51% of the equity share capital. see cama, s 394; para. 19(3) companies regulations 2021. 30cama, s 271(1). 31ibid, s 330(1). 32 cama, s 394 33 ibid, s 237 (1). 34 cama, s 396 35ibid, s. 402 (1) african customary and religious law review (acarelar) 5 (2024) 51 | p a g e 5. the impact of one person company on nigerian businesses and economy the concept of one person company, although relatively new in the nigerian entrepreneurship sector, has a significant impact on businesses and the economy due to its progressive nature. the ease of incorporation with less compliance is the primary reason behind its projected success, making it an attractive option for foreign investors who can avoid dealing with multiple individuals and potential disparities. this simplicity encourages foreign investors to establish their own businesses in nigeria by merging with a one person company, leading to an influx of foreign funds into the country. furthermore, the straightforward ownership structure of one person company makes it easier to entrepreneurs to establish and manage businesses, promoting entrepreneurial spirit and the development of small medium enterprises in nigeria. as the local business environment is highly populated by small medium enterprises, which contribute nearly 50% of the country’s gdp and account for over 80% of employment, according to a 2021 survey by smedan36 and the nigerian bureau of statistics,37 the impact of one person company is substantial. in fact, small medium enterprises are considered the main engine of economic growth and a major factor in promoting private sector development, as noted by udechukwu.38 moreover, alile aptly described smes as the “backbone of the nigerian economy,”39 reinforcing the crucial role they play in driving economic growth and development. this sentiment is further underscored by the significant contributions of small medium enterprises to the country’s gdp and employment rates, highlighting the importance of creating a conducive business environment that fosters their growth and success. in addition to their role in promoting small and medium enterprises, one person company also have a profound impact on nigerian businesses and the economy through their business facilitation features. as described by kaur, they “provide more flexibility with less compliance,” 40 streamlining the process of setting up and running a business. this flexibility is complemented by increased privacy, protecting the identity and business dealings of the sole shareholder. furthermore, one person company have fewer regulatory requirements, reducing the compliance burden and associated costs and may benefit from tax advantages, such as reduced tax liabilities or simplified tax compliance. by promoting entrepreneurship, innovation and job creation, one person company can contribute substantially to nigeria’s economic growth, increase competition, drive innovation and better services and contribute to economic diversification by reducing dependence on traditional industries. ultimately, they can also generate revenue for the government through taxes and fees, thereby supporting the country’s economic development and reinforcing their importance in the nigerian business landscape. 6. challenges of one person company in nigeria the introduction of one person company in nigeria, as provided for in cama 2020, has been widely acclaimed as a groundbreaking move to foster entrepreneurship and economic growth. nevertheless, a closer examination reveals an intricate array of challenges that pose a significant threat to the realization of its potential advantages. some of the challenges associated with one person company include: potential for abuse one of the significant challenges facing one person company in nigeria is their potential for abuse, which stems from the concentration of power and control in a single individual, creating an environment where unethical or illegal activities can thrive without fear of detection or consequences. this lack of accountability and absence of checks and balances can lead to financial mismanagement, embezzlement, and conflicts of interest, where personal interests supersede the company’s well-being. furthermore, one person company may be used to conceal income, assets or transactions, depriving governments of revenue through tax evasion and avoidance, and their opaque nature makes them vulnerable to fraudulent activities, such as money laundering, ponzi schemes, and fake investment opportunities. lack of business experience another significant challenge faced by individuals entering the world of one person company is a lack of business experience. many sole proprietors opt for this structure without prior experience in running a business, which can lead to poor decision-making, inadequate planning and ineffective management. without a solid foundation in entrepreneurship, individuals operating one person company may struggle to make informed decisions, mange 36 small and medium enterprises agency of nigeria 37small and medium enterprises development agency of nigeria (smedan), ‘nbs–smedan national survey of micro, small and medium enterprises (msmes)’ accessed 10 august 2024,http://www.smedan.gov.ng/images/pdf/ nationalpolicy-on-msmesnew.pdf>;e i john and w e ebiri,, ‘small and medium scale enterprises (smes) and economic growth in nigeria’, (2021) 2 (1) journal of business management, 39. 38fn udechukwu, ‘survey of small and medium scale industries and other potentials in nigeria,’ in central bank of nigeria seminar proceedings on small and medium scale industries equity investments scheme (smieis), 2003, cbn training centre, lagos 39o alile, ‘unsung heroes: smes as backbone of the nigerian economy’, <https://businessday.ng/columnist/article/unsungheroessmes-as-backbone-of-the-nigerian-economy/> accessed 10 august 2024. 40h kaur, contemporary company law reforms in india,’ in handbook of corporate law, (london: routledge: 2017) 212. https://businessday.ng/columnist/article/unsung-heroessmes-as-backbone-of-the-nigerian-economy/%3e%20accessed https://businessday.ng/columnist/article/unsung-heroessmes-as-backbone-of-the-nigerian-economy/%3e%20accessed umenweke & aduma: one person company under the companies and allied matters act 2020: a step in which direction? 52 | p a g e risks, adapt to changing market conditions, navigate complex financial, legal and regulatory requirements, develop and implement successful business strategies. the absence of diverse perspectives and expertise can also hinder innovation, creativity and problem-solving. relying on trial and error can lead to costly mistakes and missed opportunities, ultimately threatening the success and sustainability of the business. lack of structured statutorily framework for the practice and procedure of one person company the lack of a structured statutory framework for the practice and procedure of one person company in nigeria poses significant challenges. despite the introduction of one person company in cama 2020, the regulatory framework is incomplete, leading to uncertainty and ambiguity. this ambiguity may result in inconsistent application of laws and regulations, making it difficult for owners, regulatory bodies and stakeholders to navigate the business landscape. the absence of clear guidelines and definitions for one person company increases the risk of abuse, misuse and fraudulent activities. unlike in india and the uk, nigeria’s regulatory environment for one person company lacks clarity and structure, as the companies act 2013 in india clearly defines one person company.41 moreover, only a natural person who is an india citizen and resident in india can incorporate a one person company, with no person allowed to incorporate more than single one person company or become a nominee in more than one such company.42 it means that other legal entities like companies or societies or other corporate entities cannot form a one person company in india. regulatory gaps in company conversion and share capital increase nigeria’s regulatory framework poses an additional challenge, as it lacks provisions for converting a one person company or reregistering a multiple-member company as a one person company. instead, section 18(2) of cama 2020 only allows one person to form and incorporate a private company, without addressing conversion from a multi-member structure to a one person company. moreover, section 571(c) stipulates that a company may be wound up if the number of members falls below two, implying that conversion to a one person company is not permitted and may even be a ground for winding up. this restrictive interpretation contradicts the objective of cama 2020 to ease doing business in nigeria, as it denies multiple-member companies the flexibility to convert to a one person company structure, thereby limiting their ability to adapt to changing business needs. additionally, the inability to convert to a one person company structure under cama 2020 may have far-reaching consequences for small and medium-scale businesses incorporated before the law came into effect. many of these businesses were founded by sole entrepreneur who was compelled to partner with others solely to meet the regulatory requirements, leading to potentially unstable relationships. in some cases, these forced partnerships have resulted in severed misunderstandings between members, ultimately harming the company. prohibiting these companies from converting to a one person company structure, and even worse, making such conversion a ground for winding up, is not an ideal solution. in fact, the supreme court has cautioned against hastily terminating a company’s existence, emphasizing the need for care and utmost caution in such proceedings.43 furthermore, the gaps in the regulatory framework also create challenges for one person company in terms of cessation, winding up and dissolution. unlike in india, where the companies incorporation rules 2014 provide clear conditions for when a one person company may cease to operate as such, nigeria’s cama 2020 lacks specific provisions for these processes.44 additionally, cama does not provide procedures for share capital increase in one person company. section 127 of cama 2020, which governs share capital increase, is geared towards companies with multiple shareholders, leaving a critical question unanswered on how can one person company increase its share capital? this oversight highlights the need for clarification and expansion of the regulatory framework to address the unique needs of one person company. uncertainty in succession upon death or incapacitation of sole shareholder one person company faces significant succession planning challenges due to the lack of clear provisions in cama 2020. specifically, the law does not address what happens when the sole shareholder and director passes away or becomes incapacitated. while the shares may be transmitted to the legal representative, it is essential to have a clear mechanism for appointing a nominee to take over the company. ideally, cama 2020 should be amended to require one person company member to name a nominee in the memorandum of association, subject to the same eligibility conditions and consent requirements. this nominee would assume ownership of the shares, dividends, rights and liabilities in the event of the original shareholder’s death or incapacitation, ensuring continuity and minimizing uncertainty. 41s 2(62) of the indian companies act, 2013 defines one person company as a company which has only one person as its member. 42 rule 3 of the companies (incorporation) rules, 2014. 43 air via ltd v oriental airlines ltd (2004) lpelr-272 (sc). 44rule 6 of the companies (incorporation) rules, 2014. provides to the effect that where the paid-up share capital of a one person company exceeds fifty lakh rupees or its average annual turnover during the relevant period exceeds two crore rupees, it shall cease to be entitled to continue as a one person company. african customary and religious law review (acarelar) 5 (2024) 53 | p a g e limited access to finance the growth, expansion and sustainability of one person company in nigeria are severely hindered by limited access to finance, which is essential for investing in new opportunities. the perceived high risk associated with lending to one person company, coupled with their lack of collateral and inadequate financial reporting, makes it challenging for them to secure loans from financial institutions. this in turn, limits their ability to establish credible relationships with lenders, further constraining their access to finance. as a result, one person company face constrained growth and expansion, reduced competitiveness, inability to invest in technologies, reduced ability to respond to financial shocks and increased vulnerability to business failure. in summary, the challenges of one person company include potential for abuse, lack of structured framework, succession planning issues, limited access to finance and regulatory hurdles. these challenges underscore the need for careful consideration and strategic planning to ensure the success and sustainability of one person company in nigeria. 7. conclusion and recommendations the introduction of one person company in the nigeria’s legal system is a positive step towards promoting entrepreneurship, economic growth and a more accessible business environment, particularly for sole entrepreneurs, but concerns regarding its challenges need to be addressed to fully realize its benefits. to achieve this, the researchers recommend developing a comprehensive and robust regulatory framework to govern one person company, raising public awareness about the benefits and implications of one person company. this framework would promote informed decision-making. the researchers further recommend establishing oversight mechanisms to monitor one person company and prevent abuse, regularly reviewing and updating the company’s structure, governance and operations to ensure alignment with changing business needs. by implementing these measures, nigeria can promote entrepreneurship, economic growth and a more accessible business environment, while minimizing the potential risks associated with one person company. african customary and religious law review (acarelar) 5 (2024) 77 | p a g e assessing the efficacy of real property taxation in nigeria abstract nigeria's real property taxation system faces significant challenges, affecting economic growth and social welfare. the study evaluates the current framework, identifying inefficiencies and disparities. key issues include inadequate property valuation, inconsistent tax rates and exemptions, and limited local government autonomy. the study adopts a qualitative research approach, while relying on the method of conceptual analysis to delineate key concepts and variables. the study examines the impact on land ownership, urban development and revenue generation. fiscal federalism complications and tax evasion strategies are also addressed. the research recommends reforms, such as standardized valuation methods, progressive tax structures and enhanced local government powers. it argues that effective real property taxation can stimulate economic development, promote transparency and ensure sustainable revenue streams. as such, it contributes to the ongoing debate on taxation and development in nigeria, providing insights for policymakers and stakeholders with deep concern for real property taxation. keywords: real property taxation, economic development, tax policy, land ownership, fiscal federalism 1. introduction the taxation of real property in nigeria has been a contentious issue, plagued by inefficiencies, disparities and complexities. nigeria's economic growth and social development are hindered by inadequate property taxation policies1. this study investigates the taxation of real property in nigeria, focusing on the challenges and implications for economic development. the nigerian government's reliance on oil revenues has diverted attention from the potential of real property taxation to generate significant revenue2. the land use act (1978) and taxes and levies3 govern real property taxation. however, inconsistencies and ambiguities within these laws create challenges for effective implementation4. for instance,5 notes that inadequate property valuation mechanisms result in underestimated tax liabilities, further reducing government revenue. nigeria's real property taxation system is governed by the land use act6 and the taxes and levies7. however, rossi notes that these laws are outdated and inconsistent, leading to confusion among stakeholders8. one does not agree with this decision. even section 1(3) of the 1999 constitution of the federal republic of nigeria states that the voiding should be to the extent of its inconsistency. only the word ‘notwithstanding’ should have been struck down and the blue pencil rule should have been used to isolate and insulate the other provisions of the taxes and levies act. we have not heard the last of this decision as the supreme court is yet to decide on the matter9. the calabar division of the court of appeal in uyo local government v. akwa ibom state government & anor, struck down the taxes and levies act. the background to this is that s 1(1) of the law states as follows: notwithstanding anything contained in the constitution of the federal republic of nigeria, 1979 as amended or in any other enactment or law, the federal government, state government and local government shall be responsible for collecting taxes and levies listed in part i, part ii and part iii of the schedule to this act respectively. the court of appeal held that when the term ‘notwithstanding’ is used in a section of a statute, it is meant to exclude an impinging or impending effect of any other provision of the statute or other subordinate legislation so that the said section will fulfill itself. the use of the word ‘notwithstanding’ means that no provision of the constitution shall be capable of undermining the said section. the supremacy of the constitution is never in doubt and section 1(3) of the constitution is to the effect that if any other law is inconsistent with the provisions of the constitution, the constitution shall prevail and that other law shall to the extent of its inconsistency be void. the court concluded that section 1(1) of the taxes and levies act, having commenced its provisions with a clause that under mines the supremacy of the constitution, that there is nothing that can operate to save any part of that law. consequently, the virus in the introductory clause of the act has infested the entire act and hereby rendered it unconstitutional. the land use act (1978) vests ownership of all lands in the state governments, which grant leases to individuals and organizations10. this leasehold system creates complexities in property taxation, as tax by meshach nnama umenweke, phd, ficmc, acti, bl, professor of law and former dean, faculty of law, nnamdi azikiwe university, awka, anambra state. email: mn.umenweke@unizik.edu.ng, tel: 08037090048 1 b adeoye, ‘taxation and economic development in nigeria’. journal of economic studies, 47(2), (2020), p. 12 2 s agbola, ‘local government autonomy and taxation in nigeria’. journal of public administration, 53(1), (2018), p.40 3 taxes and levies (approved list for collection) act (1998) 4 h ross, ‘nigerian taxation laws and policies’ (lagos: nigerian institute of advanced legal studies. (2017), p.28 5 a oyegade, ‘property valuation and taxation in nigeria’. journal of property research, 36 (1), (2019), p.32 6 1978 7 approved list for collection) act (1998) 8 ross op.cit, p. 25 9 suit no. ca/c/388/2017, (2020) lpelr-49691 (ca). c i obika, ‘division of taxing powers’, citn nigerian tax guide & statues, 3rd edition, vol. 1, p. 150 10 see section 1, land use act, 1978) mailto:mn.umenweke@unizik.edu.ng umenweke: assessing the efficacy of real property taxation in nigeria 78 | p a g e liabilities are often unclear11. for instance, the act's failure to provide clear guidelines for property valuation and taxation has led to arbitrary assessments12. furthermore, the taxes and levies empowers local governments to collect property taxes13, but inadequate autonomy and resources hinder effective tax administration14. local governments often struggle to maintain accurate property records, leading to tax evasion and underpayment15. the taxation of real property in nigeria faces significant challenges, including inadequate property valuation16, inconsistent tax rates and exemptions17, and limited local government autonomy18. these issues hinder revenue generation, urban development and land ownership. these challenges necessitate the need for comprehensive reforms to nigeria's real property taxation system. it is, therefore, in response to these challenges that the paper is written. the study seeks to analyze the current real property taxation framework in nigeria; identify challenges and implications for economic development; and ultimately, proffer insightful recommendations for reforms for improved taxation policies. in so doing, the study contributes to the ongoing debate on taxation and development in nigeria, providing insights for policymakers and stakeholders. 2. operational definition of key concepts it was the german philosopher ludwig wittgenstein who emphasized the crucial role of concept clarification in understanding language and meaning, stating, ‘the conceptual confusion that underlies the question disappears once we clarify the concepts.19‘ he argued that clarifying concepts is essential to resolving philosophical problems, as it allows us to distinguish between meaningful and meaningless expressions20. in line with this admonition of his, the study, therefore, elucidates the following concepts to aid the ebb and flow of this discourse: real property taxation real property taxation refers to the levying of taxes on land and immovable properties, such as buildings and structures.21 it is a significant source of revenue for governments, particularly local authorities22. effective real property taxation promotes economic development by encouraging efficient land use and investment23. in nigeria, real property taxation is governed by the land use act (1978) and taxes and levies (approved list for collection) act (1998)24. real property taxation also influences land ownership patterns and urban development. real property taxation in nigeria faces numerous challenges, including inadequate property valuation, inconsistent tax rates and exemptions. in african petroleum ltd v. lagos state government25, the court of appeal held that property taxation must be based on accurate valuation. however, nigeria's outdated property valuation system hinders effective taxation26. the lack of clear guidelines for property taxation leads to arbitrary assessments27. this results in tax evasion and underpayment. the nigerian government must address these challenges to optimize real property taxation revenue. in terms of impact, effective real property taxation promotes economic development by encouraging efficient land use and investment. in shell petroleum development company v. federal inland revenue service28 the federal high court emphasized the importance of taxation in generating revenue for public expenditure. real property taxation influences land ownership patterns, urban development and agricultural productivity. adequate taxation policies encourage foreign investment, entrepreneurship and economic growth29. conversely, inadequate taxation hinders economic progress. nigeria's real property taxation system requires reforms to stimulate economic development. indeed, reforms are necessary to improve nigeria's real property taxation system. in the case involving lagos state government v. eko hotels ltd30, the court highlighted the need for clear taxation guidelines. recommendations include standardized property valuation methods, progressive tax structures and enhanced local government autonomy. implementing these 11 adeoye op.cit. p. 15 12 a oyegade. ‘property valuation and taxation in nigeria’. journal of property research, 36(1), (2019), p.35 13 approved list for collection) act (1998) 14 agbola, op.cit p. 42 15 i okonkwo, ‘tax administration in nigeria: challenges and prospects’, journal of taxation and economic development, 5(1) (2020), p.50 16 oyegade, op.cit, p. 34 17 adeoye, op cit, p. 15 18 agbola, op cit, p. 42 19 l wittgenstein. philosophical investigations. (oxford: blackwell publishers, 1953), §423 20 ibid §116. 21 oyegade, op.cit, p. 12. 22 adeoye, op.cit. p. 25 23 agbola, op cit, p. 38 24 ross, op.cit, p. 28 25 african petroleum ltd v. lagos state government (2018) 4 nwlr (pt. 1609) 247, 247-262. 26 oyegade, op.cit, p. 32 27 adeoye, op cit. p. 20 28 shell petroleum development company v. federal inland revenue service (2020) 5 nwlr (pt. 1721) 287, 287-300. 29 agbola, op.cit, p. 45 30 lagos state government v. eko hotels ltd (2017) ld/1342/2015, lagos state high court, [2017] lagos law reports 1, 110. african customary and religious law review (acarelar) 5 (2024) 79 | p a g e reforms will promote transparency, accountability and good governance31. effective real property taxation will stimulate economic growth, reduce poverty and increase government revenue. nigeria's national tax policy provides a framework for taxation reforms32. economic development economic development encompasses the improvement of economic well-being, living standards and social welfare33. it involves increasing productivity, income and employment opportunities.34 taxation policies, including real property taxation, play a crucial role in promoting economic development35. effective taxation encourages investment, entrepreneurship and economic growth36. in nigeria, economic development is a key objective of the national tax policy37. tax policy according to todaro and smith, tax policy refers to the principles guiding taxation, including tax rates, exemptions and administration38. it aims to balance revenue generation with social welfare and economic development.39 tax policy influences investment decisions, economic growth and income distribution40. in nigeria, the national tax policy (2017) provides a framework for taxation41. effective tax policy promotes transparency, accountability and good governance. land ownership land ownership denotes to the rights and interests in land, including possession, use and transfer42. it is a critical factor in economic development, as secure land ownership encourages investment and productivity43. in nigeria, land ownership is governed by the land use act, which vests ownership in the state governments44. land ownership patterns influence urban development, agricultural productivity and social welfare. clear land ownership rights promote economic growth and poverty reduction. fiscal federalism fiscal federalism refers to the distribution of taxation powers and revenue among different levels of government.45 it aims to promote economic efficiency, equity and regional development46. fiscal federalism influences the allocation of resources, public expenditure and taxation policies47. in nigeria, fiscal federalism is governed by the constitution (1999) and the taxes and levies (approved list for collection) act (1998).48 effective fiscal federalism promotes intergovernmental cooperation and economic development. 3. the current state of real property in nigeria nigeria's real property sector contributes significantly to the country's economy, accounting for approximately 7.5% of gdp49. the sector generates substantial revenue through property taxes, rent and sales. real property also provides employment opportunities in construction, management and services. however, the sector's potential remains underutilized due to inefficiencies. inadequate infrastructure and regulatory frameworks hinder growth. effective reforms could boost economic contribution. in terms market trends, nigeria's real property market experiences fluctuations, influenced by economic conditions and policy changes. the market demand for 31 m p todaro, & s c smith, economic development (12th ed.). (boston, ma: pearson, 2018), p.155 32 2017 33 ibid., p. 15 34 adeoye, op cit, p. 30 35 agbola, op.cit. p. 42 36 oyegade, op.cit, p. 20 37 federal republic of nigeria. ‘national tax policy’, (abuja,2017) 38 todaro & smith, op cit. p. 120 39 adeoye, op cit, p. 35. 40 agbola, op.cit. p. 45 41 federal republic of nigeria, 2017. it is interesting to note that the federal republic of nigeria's 2017 document, ‘national tax policy,’ outlines the country's tax vision, objectives and strategies to promote economic growth, transparency and accountability. it aims to increase tax revenue, simplify tax compliance, and ensure fairness and equity in taxation, thereby supporting nigeria's socio-economic development. 42 oyegade, op.cit, p. 15 43 agbola, op cit., p. 40 44 ross, op.cit., p. 25 45 todaro & smith, op.cit. p. 150 46 adeoye, op.cit p. 40. a serious reading of page 40 of adeoye's work, reveals that the author discusses the significance of effective taxation in promoting economic development in nigeria. adeoye argues that a well-structured tax system can stimulate economic growth, reduce poverty and increase government revenue. 47 agbola, op cit, p. 50 48 ross, op.cit, p. 30 49 adeoye, op.cit, p. 15. umenweke: assessing the efficacy of real property taxation in nigeria 80 | p a g e residential and commercial properties remains high, particularly in urban areas50. however, supply shortages and affordability issues persist. the lagos property market, for instance, faces saturation, while emerging cities like abuja and port harcourt offer growth opportunities. investors seek opportunities in retail and hospitality sectors. market instability affects investment decisions. nigeria's real property sector faces numerous challenges, including inadequate infrastructure, regulatory uncertainties and financing constraints51. land ownership disputes and bureaucratic processes hinder development. inefficient property taxation systems and corruption discourage investment. the sector lacks transparency, exacerbating market instability. addressing these challenges requires comprehensive reforms. nigeria's real property regulatory framework requires updates to ensure efficiency and transparency. the land use act and taxes and levies (approved list for collection) act provide foundational guidelines needed for administrative efficienc52. however, implementation issues persist. recent initiatives, such as the nigerian mortgage refinance company (nmrc), aim to improve financing access. strengthened regulations would enhance investor confidence. however, despite these challenges, nigeria's real property sector holds potential for growth, driven by increasing demand and government initiatives. the sector's contribution to gdp can expand with effective reforms53. emerging trends, such as sustainable development and technology integration, offer opportunities. private sector participation and international cooperation can enhance growth. addressing challenges and improving regulations will unlock the sector's potential. 4. real property taxation framework in nigeria: a comparative analysis before we proceed to examine how effective real property taxation is in nigeria, it is expedient to compare nigeria's real property taxation with some advanced countries such as the uk, singapore, and south africa. this will enable us to determine the recommendations we make at the end of the work. to be more emphatic, nigeria's real property taxation framework is governed by the land use act and taxes and levies54. while these laws provide a foundation, they lag behind international best practices. this section compares nigeria's framework with those of south africa, singapore and the united kingdom. these countries exemplify effective real property taxation systems. their approaches can inform nigeria's reforms. in view of land ownership and registration, we discover that nigeria's land use act vests ownership in state governments, whereas south africa's constitution section 25 guarantees private property rights.55. singapore's land titles act ensures secure land ownership through registration56. the uk's land registration act provides similar protections57. nigeria should adopt clearer land ownership and registration guidelines. this would promote investment and economic growth. when it comes to property valuation and tax assessment, nigeria relies on outdated property valuation methods, whereas south africa employs market-based valuations58. singapore uses automated valuation models59. the uk adopts a comprehensive valuation framework.60 nigeria must update its valuation methods to ensure accurate tax assessments. this would enhance revenue collection. having noted the above point, we shall look briefly into nigeria's tax rates and exemptions in comparison to south africa, singapore and the united kingdom. nigeria's tax rates range from 0.1% to 1.5% of property value61. south africa applies a progressive tax rate of 0.5% to 2.5%62 singapore's effective tax rate is 0.4% to 1.2%63. the uk's council tax rates vary by band64. nigeria should review its tax rates and exemptions to ensure fairness. furthermore, when one compares nigeria's taxation of real property with that of south africa, singapore and uk in terms of tax administration and compliance, one notices sharp differences. nigeria's tax administration is fragmented, whereas south africa's south african revenue service (sars) ensures centralized management65. singapore's inland revenue authority of singapore (iras) employs advanced technology for tax compliance66. the uk's hm revenue & customs (hmrc) provides comprehensive guidance which nigeria needs to emulate in order to strengthen tax administration. furthermore, in terms of revenue allocation, nigeria's fiscal federalism framework is unclear, whereas south africa's constitution allocates revenue among national, provincial and local 50 oyegade, op.cit, p. 28 51 agbola, op.cit, p. 40 52 ross, op.cit, p. 25 53 adeoye, op.cit, p. 20) 54 approved list for collection) act (1998) 55 see south africa. ‘constitution’. (pretoria: south african government, 1996), section 25 56 see also section 5, singapore. land titles act. (singapore: singapore government, 1993). 57 see section 1, uk. land registration act. (london, 2002). 58 south african revenue service. ‘taxation laws and regulations. (pretoria, 2019), p.12 59 singapore department of statistics. ‘property market brief’. (singapore, 2020), p.20 60 uk valuation office agency. ‘property valuation: a guide to the valuation process’. (london: uk government printing office, 2019), p 15 61 adeoye, op cit., p. 25 62 south african revenue service, (2019), p. 20. 63 singapore inland revenue authority, (2020), p. 25 64 uk government. ‘council tax guidance’. (london, 2020) 65 south african revenue service, (2019), p. 30 66 singapore inland revenue authority. ‘tax guide for property owners’ (singapore, 2020),p.30. african customary and religious law review (acarelar) 5 (2024) 81 | p a g e governments67. singapore's government manages revenue centrally68. the uk's local government finance act (1988) ensures transparent revenue allocation69. nigeria must clarify revenue allocation guidelines. nigeria offers limited tax incentives, whereas south africa provides relief for low-income households.70 singapore offers tax breaks for urban renewal projects71. the uk's tax relief supports charitable donations. nigeria should introduce targeted tax incentives to encourage healthy taxation. finally, in terms of international cooperation and transparency, nigeria's taxation of real property is poor. nigeria lacks international cooperation on tax matters, whereas south africa participates in global tax forums72. singapore collaborates with oecd countries.73 the uk supports international tax transparency initiatives74 . nigeria must engage globally to enhance efficiency in her taxation of real property to boost revenue generation and accountability. from the foregoing comparison so far, it is crystal clear that nigeria's real property taxation framework requires comprehensive reforms. adopting international best practices from south africa, singapore and the uk can enhance revenue collection, promote economic growth and ensure fairness. 5. benefits of real property taxation in nigeria revenue generation this is one of the most important benefits of real property taxation in nigeria. for example, in 2020, real property taxation generated approximately ₦137.5 billion (approximately $350 million usd as of 2022 dollar to naira exchange rate) in revenue for nigerian governments75. this represents a significant increase from previous years, demonstrating the growing importance of real property taxation in nigeria's revenue framework. real property taxation provides significant revenue for government budgets, enabling them to fund public services and infrastructure. in nigeria, property taxes contribute substantially to state and local government revenues76. effective taxation ensures sustainable revenue streams. this revenue supports essential public services. economic growth real property taxation promotes economic growth by encouraging investment, development and job creation. tax incentives attract foreign investors, stimulating economic expansion77. a well-structured tax system fosters business growth. infrastructure development tax revenue from real property funds infrastructure projects, enhancing nigeria's urban and rural development. this includes roads, schools and healthcare facilities. property market regulation real property taxation regulates the property market, preventing speculation and promoting affordability. in african petroleum ltd v. lagos state government78, the court emphasized taxation's role in regulating property ownership. increased government transparency real property taxation enhances government transparency and accountability. tax records provide valuable information for policy-making and public scrutiny. improved land use planning real property taxation improves improved land use planning by encouraging optimal utilization of land resources, balancing urban development with environmental conservation. real property taxation incentivizes efficient land use by penalizing underutilization and rewarding sustainable development. effective land use planning promotes economic growth, social welfare and environmental sustainability. 67 south africa. constitution. (pretoria: south african government, 1996) schedule 4 68 singapore department of statistics, (2020), p. 25 69 uk. ‘local government finance act’. (london: uk government, 1988) 70 south african revenue service, (2019), p. 25. 71 singapore inland revenue authority, (2020), p. 28 72 south african revenue service, (2019), p. 35 73 singapore inland revenue authority, (2020), p. 32 74 (uk government, 2020) 75 b adeoye, ‘real property taxation in nigeria: challenges and prospects’. journal of taxation and economic development, 11(1), 25-40. (lagos, nigeria: university of lagos press, 2022) p.32 76 adeoye op.cit, p. 20 77 agbola, op.cit., p. 45 78 african petroleum ltd v. lagos state government (2018) ca/l/969/2016, [2018] 4 nwlr (pt. 1609) 247, 247-262. umenweke: assessing the efficacy of real property taxation in nigeria 82 | p a g e reduced poverty real property taxation can reduce poverty through targeted tax relief and social welfare programs. tax exemptions or reductions for low-income households can increase their disposable income, enabling them to afford basic necessities. additionally, tax revenue can fund social welfare initiatives, such as affordable housing, healthcare and education, further alleviating poverty. environmental conservation taxation policies encourage sustainable development and environmental conservation. eco-friendly construction and renewable energy initiatives benefit from tax incentives. increased property values real property taxation can increase property values through infrastructure development and public services. strategic taxation policies encourage investments in roads, schools, healthcare facilities and other essential amenities, enhancing property values. additionally, tax-funded public services like security, waste management and transportation improve the quality of life, making areas more attractive to investors and residents. this, in turn, boosts property values and stimulates local economic growth. foreign investment attraction nigeria's real property tax environment attracts foreign investors, boosting economic growth. a transparent and predictable tax system ensures stability, encouraging foreign investment in real estate development, infrastructure and related sectors. tax incentives, such as reduced property taxes or exemptions, further attract foreign investors, stimulating capital inflows and economic expansion. by attracting foreign investment, nigeria's real property sector creates jobs, generates revenue and promotes urban development. job creation real property taxation supports job creation in construction, property management and related sectors. tax revenue funds infrastructure projects, generating employment opportunities in construction, engineering and architecture. additionally, a vibrant real estate market, fueled by effective taxation policies, creates jobs in property valuation, brokerage, management and maintenance. this ripple effect stimulates economic growth, reducing unemployment and poverty. 6. effective ways to improve real property taxation in nigeria if we ended this study by highlighting just the inadequacies in nigeria's taxation of real property, without advancing insightful recommendations for reforms and betterment of nigeria's real property taxation future, then we would be no better than a pessimist and armchair critic, who knows the cost of everything but the value of nothing. we are convinced that nigeria's real property taxation landscape holds good for the future, hence, we make the following recommendations for effective reforms: increase tax awareness nigeria's tax administrators should launch public awareness campaigns, similar to south africa's tax education programme. educating taxpayers about benefits and obligations boosts compliance. targeted campaigns can address nigeria's tax apathy. foster inter-governmental collaboration nigeria's tax administrators should encourage collaboration between federal, state and local governments, like south africa's intergovernmental fiscal relations framework. such coordination optimizes tax collection, reduces conflicts. simplify tax laws and regulations nigeria's tax administrators should streamline nigeria's complex tax laws, adopting clear, concise language. this approach has worked in rwanda, where simplified tax laws increased compliance by 30%. nigeria can learn from rwanda's success. clear regulations reduce confusion, promoting voluntary compliance. implement efficient tax administration nigeria's tax administrators should adopt technology-driven tax administration, like ghana's ghana revenue authority (gra) e-tax system. this enhances transparency, reduces bureaucracy and increases revenue collection. nigeria can leverage technology to improve tax efficiency. enhance property valuation nigeria's tax administrators should endorse modern valuation methods, like kenya's property valuation standards. accurate valuations ensure fair taxation, reducing disputes. nigeria can benefit from kenya's expertise. african customary and religious law review (acarelar) 5 (2024) 83 | p a g e provide tax incentives nigeria's tax administrators should offer targeted incentives, such as reduced tax rates for affordable housing developers, similar to morocco's housing tax exemptions. incentives stimulate investment, economic growth and social development. strengthen tax enforcement nigeria's tax administrators should establish effective tax enforcement agencies, something similar to egypt's tax authority to tighten tax leakages. robust enforcement reduces tax evasion, increasing revenue collection. promote transparency and accountability nigeria's tax administrators should implement regular tax audits and public financial reporting. this is what helped botswana's tax administrators tackle corruption. transparency ensures accountability, and accountability in turn boosts tax payers’ confidence. 7. conclusion the study has painstakingly examined the efficacy of real property taxation in nigeria. from a comparative analysis of some select countries such as the uk, south africa and singapore, the study established that real property taxation in nigeria requires comprehensive reform to optimize revenue generation, economic growth and social development. by adopting simplified tax laws, efficient tax administration and increased tax awareness, nigeria can enhance its tax environment. learning from african countries with successful taxation systems, such as rwanda, ghana and kenya, provides valuable insights. it is the submission of the study that effective real property taxation promotes economic growth, job creation and poverty reduction. that is why nigeria's government must prioritize tax reform, leveraging technology, transparency and accountability. by implementing these recommendations, nigeria can actualize its real property taxation potential. the study maintains, therefore, that implementing these measures requires strong political will, stakeholder engagement and continuous evaluation. nigeria's real property taxation reform will yield significant economic benefits, improved governance and enhanced quality of life for citizens. with targeted efforts, nigeria can establish a robust, equitable tax system that encourages investment into real property both local and foreign investors. acarelar 2 (2021) page | 1 a critique of discriminatory inheritance practices and widowhood rights under itsekiri customary law in south-south nigeria* abstract this paper applies the doctrinal research method to identify and appraise multi-faceted and multidimensional discriminatory succession practices against widows under itsekiri customary laws of south-south nigeria. it highlight key inhuman and degrading discriminatory practices under itsekiri customary law such as exclusion of widows from inheritance of their deceased husband’s property and construing wives as properties and part of the deceased husbands estate to be shared. this paper concludes that inhuman and uncivilized customary practices which saw widows as chattels to be inherited, have been abolished by the supreme court of nigeria and declared repugnant to natural justice, equity and good conscience. it is recommended that the national assembly and states houses of assembly should urgently pass legislations making it a criminal offence to discriminate against widows/females in any form especially with regards to inheritance rights, and providing stiff punishment for such discrimination. this paper also recommends mass advocacy and lawful protests to effect changes in itsekiri and similar customs that denies widows of their rights of inheritance. keywords: discrimination, widow, inheritance rights, itsekiri, customary law 1. introduction the issue of gender imbalance, disparity and discrimination against women within most ethnic groups in nigeria as well as other parts of africa has been, still is, and will continue to be an issue of discourse, controversy and research in nigeria and indeed in most parts of the world.1 this situation which has prevailed for several decades and centuries has become so pervasive that they had even been legitimized by the supreme courts in several judicial decisions in nigeria.2 however, with the enactment of section 42 of the 1999 nigerian constitution,3which outlaws all forms of discrimination against women in nigeria it was the expectation of several lawyers, public affairs analysts , human rights activist and social workers that the issue of discriminatory succession practices against women would have been laid to rest especially with respect to intestate succession under customary law.4it is factual that for several decades both women and girls in nigeria have been beset with dehumanizing, oppressive and very discriminatory customary law practices especially as it relates to inheritance rights which has remained pervasive and deeply entrenched even in the face of the constitutional fundamental freedom against discrimination.5whereas strict and full application of this constitutional provision would have laid to rest the issue of discrimination against women in all facets of nigeria life including customary law, this apparently straightforward situation is complicated by the fact that nigeria currently operates a system of ‘legal pluralism’ where statutes, common law and customary laws are applied simultaneously in our legal jurisprudence6 these degrading and offensive discriminatory cultural inheritance practices against women in nigeria are mainly due to the pervasive existence of customary laws that encourage discriminatory and harmful cultural succession practices against women especially in rural areas, as well as the lack of commitment and will by government to domesticate and implement international laws that prohibit all forms of discrimination against women as well as enforce applicable provisions of the nigerian constitution.7it *by kenneth bawo atsenuwa, llb (hons.), bl, llm, milr, pgde, fciwm, senior lecturer (law), school of general studies, delta state polytechnic, ogwashi-uku, nigeria. phone nos.: 08062399908, 08123985458. e-mail: barrkenatse@gmail.com. 1k b atsenuwa, ‘a comparative analysis of female succession rights under itsekiri customary law and selected tribes’ (unpublished llm dissertation delsu abraka 2018). 2onwuchekwa v onwuchekwa [1991] 5 nwlr (pt. 194) 739 (sc); akinnubi v akinnubi (1997) 2 nwlr (pt. 486) 144. 3cfrn 1999 (as amended) s42. 4paul okhaideitua, ‘legitimacy legitimation and succession in nigeria: an appraisal of section 42 (2) of constitution of the federal republic of nigeria 1999 as amended on the rights of inheritance’ [2012] (4)(3) journal of law and conflict resolution, 31-44. 5ifemeje sylvia chika and umejiaku nneka. ‘discriminatory cultural practices and women’s rights among the igbos of south east nigeria: a critique’ [2015] (25) journal of law, policy and globalization 18-27 6itua (n4)ibid 7j a m agbonika, ‘the impact of domestic and international instruments on customary law widowhood practices in nigeria’ [2015] (5)(2) ajlc, 1-33. atsenuwa: a critique of discriminatory inheritance practices and widowhood rights under itsekiri customary law in south-south nigeria page | 2 is in the face of these practices that various gender rights activist , non-governmental organizations and public commentators have in recent times added their voice and resources in advocating that since the world is a global village, nigeria should as a minimum imbibe the international best practice of gender equality or on a minimum basis gender equity as a starting point so as to ensure that women are politically and economically empowered to drive the campaign against discrimination.8 this paper applies the doctrinal research method to examine customary law succession under itsekiri customary law with emphasis on discriminatory inheritance practices against widows, and widowhood rights violation under the system. it also analyzes the implications/impacts of international and national statutory instruments as well as recent transformative judicial intervention by the supreme court of nigeria with a view to determining how these can be harnessed and applied in enhancing succession rights of women under itsekiri customary laws. 2. historical antecedents/ background the itsekiri nation is a race that is predominantly domiciled in warri south, warri north and warri south west local government areas of delta state. they however have large settlements and huge population in uvwie, okpe, sapele, ethiope west and ethiope east local government areas of delta states as well as in ikpoba-okha local government area of edo state in south-south nigeria.9 the headquarters of the itsekiri nation is warri town while their ancestral home is ode-itsekiri both in delta state nigeria; they are predominantly farmers and fishermen by occupation. 10 stating the historical source of the name as well as the geographical location of the itsekiri people, williams a.moore,11stated thus: ‘the itsekiri live in the westernmost part of the niger delta bounded by the bight of benin on the west and latitude 60n. the itsekiri have boundaries with ilaje (a yoruba sub tribe) and the apoiijaws to the north west; the edos (bini) to the north; the urhobos (mainly uvwie, okpe and oghara clans) to the east and the ijaws to the south’12 the itsekiri language is very similar to the ekiti ,igalla or mahim language although the people did not originate from any of these tribes. the fact is however obvious that the itsekiri language is a dialect of the yoruba language13. itsekiri marriage system as foundation for discrimination marriages in itsekiri land are contracted mainly under the native law and custom and the system of marriage is predominantly polygamous as it is common for men to marry several wives who are then placed in the disadvantaged position of competing for love and attention of their husbands as is practised amongst most other tribes in south-south and south eastern nigeria14. the itsekiri marriage system under its customary law is not a union of the man and his wife alone, but is a union of the families of wife and husband as the man is usually made to pay the traditional bride price on the wife to signify customary concretization of the marriage in addition to fulfilling other requirements.’15the polygamous system of marriage is a key underlying fact for discriminatory practices against women under itsekiri customary law as the idea of the principle of one man, one wife enunciated in the englishlocus classicus of hyde v hyde16 is hardly embraced in the itsekiri system of marriage. ogbobine,17 stated this principle of itsekiri marriage thus: 8atsenuwa (n 1) 2. see ikenga oraegbunam, ‘equity, not equality as sameness’, in n. ezenwa-ohaeto (ed), power, gender relations, character and nation building, awka, fab anieh nig. ltd., 2015, pp. 63-79. see also ikenga k.e. oraegbunam, ‘a jurisprudence of affirmative action as a platform for women empowerment in nigeria today’, ‘, legislative practice review: nigerian journal of law, practice and procedure of legislature, vol. 2 no. 2, 2010, pp.76-109. 9j o s ayomike, a history of warri. (ambic press ltd. benin city 2008) 10ibid 13 11w a moore, history of the itsekiris (frank cass and co. ltd. california 1970) 12ibid 29 13r a i ogbobine, the iwere warri kingdom and the olu’soverlordshiprights in itsekiri land (rufbine books warri 1980) 10. 14ifemeje (n5) ibid. 15t y pessu, temotsi marriage in itsekiri custom (island press warri 2012). 16hyde v hyde [1886] lr ipd 130 17r a i ogbobine, the foundation of itsekiri culture; the benin influence (rufbine publisher benin 1984 68). compare with ikenga k.e. oraegbunam, ‘women’s rights in some aspects of matrimonial jurisprudence under islamic family law in nigeria: need for reform’, kogi state university confluence journal of jurisprudence and international law, vol. 5. no. 1, 2012, pp.40-47. also with b. o.s. udezo, published with modification as ‘women’s rights in matrimonial jurisprudence under islamic family law in nigeria: a need for reform’, journal of religion & human relations, pp. 101-110; ikenga k.e. acarelar 2 (2021) page | 3 the agelong european or christian theory of the union of man and woman into one and indivisible body (which makes one plus one equals to one) at marriage is inconceivable both in benin and itsekiri customary systems of marriage. it is a mere piece of religious superstition which has never impressed the bini and itsekiri. under a system that encourages polygamy on a large scale and in which the people are pathologically, spiritually and traditionally polygamous, it would be difficult if any husband were to be spiritually joined to one wife without consideration for the other wives. the polygamous nature of itsekiri marriages makes the women to be in a disadvantaged position as they do not have equal rights to polyandry and are therefore forced to compete for the attention of their husbands who is construed as their owner, lord and master.18 in addition to its polygamous nature, the fact that under itsekiri customary law men are made to pay bride price on the women to symbolize concretization of the marriage rites is another major issue underlying the treatment of women as properties and chattels of their husband under itsekiri customary law19kenneth bawo atsenuwa’ another component of the itsekiri marriage system which create a feeling of ownership over women by the men is the fact that it is mandatory for the husband’s family to pay bride price for the wife before the marriage can be celebrated.20the inequalities and indignities meted out to women in nigeria especially in terms of inheritance rights has been linked to the payment of bride price or brides wealth by the men on the women during traditional marriage which perhaps gives the men a ‘sense of entitlement to control the women as their property which has to a large extent precipitated wife inheritance and other discriminatory practices.21. it is argued that this practice further lays the foundation for discriminatory succession practice as it situates the wife within the context of her husband’s larger family thus giving further verve to the belief that she can be shared to other members of the family upon his death. this inhuman proprietary claim that wives are owned by men which is accentuated by payment of bride price on women during marriages was unfortunately given judicial recognition by the court in the case of onwuchekwa v onwuchekwa,22 when it held that the isikwato customary law which construed a wife as well as her money and property to be owned by her husband was not repugnant to natural justice, equity and good conscience. 3. international and national instruments prohibiting discrimination against women discriminatory succession practices and other forms of discrimination against widows and women under itsekiri customary laws have continued to endure and remain pervasive even in the face of existing international and nigerian statutory instruments which prohibit all forms of discrimination against women. convention for elimination of all forms of discrimination against women. (cedaw) the convention for elimination of all forms of discrimination against women23 is a key international instrument adopted by the un general assembly and covers all aspects relating to protection of the rights of women all over the world. article 1 cedaw defines discrimination against women thus: the term discrimination against women shall mean ‘any distinction exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women irrespective of their mental state or a basis of equality of men and women of human rights and fundamental freedoms in the political, economic, social cultural, civilor any other field. 24 oraegbunam, ‘some critical considerations on women’s rights under the sharia law: the nigerian perspective’, ebsu journal of international law & juridical review, vol. 1, 2010, pp.357-37; ikenga k.e. oraegbunam, ‘nigerian divorce laws: implications for the indissolubility of christian marriage under canonical jurisprudence’, journal of women and minority rights, vol. 2, 2011, pp.85-109. 18ogbobore (n17) 71. 19atsenuwa (n1) 61-62. 20g akperi, birth‘marriage and death ceremonies iniwere land’. (remanths creative concept warri 2003 14). 21ifemeje (n5) ibid 22onwuchekwa v onwuchekwa [1991] 5 nwlr (pt. 194) 739 23cedaw 1979. 24ibid art. 1. atsenuwa: a critique of discriminatory inheritance practices and widowhood rights under itsekiri customary law in south-south nigeria page | 4 in addition to condemning and outlawing discrimination against women all over the world, article 225 obligates state parties to condemn all forms of discrimination against women and to pursue appropriate policy, and other frameworks with a view to eliminating all forms of discrimination against women in their respective countries. it is however, the present position that cedaw has no forced of law in nigeria as it has not been reenacted as an act of the national assembly. the supreme court of nigeria as held that any person seeking to apply international law in nigerian courts must prove that it has been reenacted by the national assembly and has thereby become a domestic law.26also, by virtue of section 12 of the 1999 nigeria constitution, cedaw does not have the force of law in nigeria as it has not become domestic or municipal law by reason that it has not been enacted as an act of the national assembly to make it consistent with the constitution.27 universal declaration of human rights the universal declaration of human rights which was adopted by the un general assembly on 10th december 1948 28 provides a robust international framework for protecting the rights of humans all over the world on the basis of equality of humans irrespective of gender and other distinctions. article 129 of the declaration is to the effect that all persons are born equal and are entitled to enjoy equal rights and dignity. the declaration also provides 30 that all persons are entitled to enjoyment of the rights and freedoms contained in the declaration without any form of discrimination whatsoever. in addition, article 7 further provides for equal protection of all as it stipulates that all persons are equal before the law and are entitled to equal protection of the law without any discrimination and entitled to equal protection against any discrimination in violation of this declaration and against any incitement to such discrimination. ‘31 also, other international instruments such as the united nations charter and the universal declaration on human rights being charters or conventions that were in force prior to independence of nigeria. in 1960 are deemed to be existing laws of and deemed to be acts of the national assembly by virtue of the savings provisions in section 315 (1999 as amended 32 african charter on human and people rights 1979 the african charter on human and peoples’ right33is another international instrument domesticated in nigeria which has extensive provisions protecting the rights of women in africa. the charter which is intended to protect the rights of all africans irrespective of their gender or status is predicated upon the principles of the african charter which are: ‘freedom, equality, justice and dignity’. the charter provides for equality between men and women and prohibits discrimination based on sex, religion or status.34 in addition to the foregoing, the african charter on human and peoples rights as well as all its protocols have the force of law in nigeria and can be fully enforced by nigerian courts by virtue of its domestication through the african charter on human and peoples rights (ratification and enforcement) act35 in so far as it is consistent with the constitution36 constitution of the federal republic of nigeria 1999 (as amended) the national legal framework on protection of nigerian citizens including women against all forms of discrimination is anchored principally on the constitution of the federal republic of nigeria, 1999.37specifically section 42 (2)38 of the constitution provides that no citizen of nigeria shall be subject ever to any form of discrimination on account of his/her place of origin, sex, religion or political 25cedaw art. 2. 26registered trustees v mhwun [2008] 34 nscqr 321 (sc). 27jes v brawal line [2010] 44 nscqr 243 (sc). 28udhr 1948. 29ibid art. 1. 30udhr art. 2. 31ibid art. 7. 32jes (n27) 243 33achpr 1979 34ibid art. 2 35african charter on human and peoples rights (ratification and enforcement) act lfn 2004 36cfrn 1999 s1 (3). 37cfrn 1999 (as amended) 38cfrn 1999 s42(2) acarelar 2 (2021) page | 5 opinions. in addition, section 34 of the same constitution,39guarantees the dignity of human person as a fundamental right and prohibits any body from subjecting any nigerian including women to inhuman treatment, forced labour or servitude. it is argued that forced inheritance of a widow by male members of her deceased husband’s family under itsekiri customary law is a form of slavery or servitude which has been outlawed by this constitutional provision. 4. succession under itsekiri customary law succession rights under customary laws (inclusive of itsekiri customary law) is applicable to the estate of a deceased person who was subject to customary laws during his lifetime and dies without leaving behind a spouse or a child of a statutory or christian marriage.40 it is the norm rather than the exception that most marriages among itsekiri people are contracted under customary laws thereby making it imperative for the estate of a deceased itsekiri man to be distributed in accordance with the native law and custom of itsekiri nation upon his demise 41.the current system of customary laws of inheritance /succession under itsekiri culture is heavily skewed in favour of male folk and to the detriment of women folk with the widow of a deceased itsekiri man being at the receiving end of the most dehumanizing and discriminatory violations of human rights. widowhood inheritance rights under itsekiri customary laws under the current system of customary laws practiced by the itsekiri, the widow of a deceased man is placed in so lowly a position that she is bereft of any rights of inheritance to her deceased husband’s properties save for those given to her to the knowledge of her husband’s family during his lifetime. the practice is of such alarming properties that a widow is not only excluded from any share in her deceased husband’s estate, but is in fact construed as an integral part of her deceased husband’s property to be shared and inherited by his relatives. explaining this system, ogbobine,42stated the position thus: traditionally, among the itsekiri, the widow … if she had children was inherited by her husband’s male kin except his father….firstchoice is /her step son failing which she goes to her brother-in-law , and when none is available, other members of the husband’s patrilineal are considered. this happens if the husband’s family did not want to lose the woman either because she was industrious or productive. the rationale behind the exclusion of itsekiri women from inheritance of their deceased husband’s property was further stated by ogbobine as follows: ‘in theory among the itsekiris, she is part of the property to be shared or inherited on the death of her husband and she cannot therefore share in the estate of the deceased’ 43 this unfortunate inhuman practice which runs contrary to the entrenched rights guaranteed by the spirit, letters and interdiment of the nigerian constitution,44has nonetheless been given judicial recognition by the courtswith respect to similar customary practices by the yoruba people who are one of the neighbours to the itsekiris. in the case of akinnubi v akinnubi45 the supreme court of nigeria held, inter alia thus: it is a well settled rule of native law custom of the yoruba that a wife could not inherit her husband’s property. indeed under yoruba customary law, a widow under an intestacy is regarded as part of the estate of the deceased husband to be administered or inherited by the deceased’s family… there are no disputes over the yoruba native law and customs that a widow could not inherit her deceased husband’s property. 39cfrn s34 40itse e sagay, nigerian law of succession: principles, cases, statutes and commentaries (malthouse press ltd. lagos 2004 257) 41pessu, (n15) 11. 42ogbobine (n17) 83 43ibid 17 44cfrn 1999 ss. 34, 42 45akinnubi v akinnubi [1997] 2 nwlr (pt. 486) 144 atsenuwa: a critique of discriminatory inheritance practices and widowhood rights under itsekiri customary law in south-south nigeria page | 6 providing further insight on the practice of widowhood inheritance under itsekiri customary laws omoneukarm quoted in sagay,46stated that ‘the eldest son who was generally the next of kin by custom had the largest claim. the house, most of the furniture and wives passed to him and he could already use the family lands held in trust’. it is evident from the above that under itsekiri customary law widows of a deceased man are categorized as properties of their husband to be inherited by his son or family members after the death of her husband. a question that arises herein is, what is the effect, under itsekiri custom where a woman rejects or refuses to marry her deceased husband’s relative to whom she is shared? ogbobine,47 stated the position under itsekiri custom thus: it is not uncommon for widows to reject any offer to remarry from her dead husband’s family should a situation like that arise, she would be allowed to go away… she would not be allowed to remove the husbands property except those specifically given to her by the husband while he was alive. these practices under itsekiri custom obviously violate the provisions of the protocol to african charter on human and peoples rights on the rights of women in africa.48 specifically, article 21 of the protocol provides as follows: ‘a widow shall have the right to an equitable share in the inheritance of the property of husband. a widow shall have the right to continue to live in the matrimonial house. in the case of remarriage, she shall retain this right if the house belong to her or she has inherited it for her lifetime alone’ 49 laudable as this protocol is, it however limits the inheritance right of a widow in respect of her husband’s property to her lifetime alone.it is argued from the foregoing that this protocol has shortcomings in resolving discriminatory succession/ inheritance practices against women under itsekiri customary laws. inheritance of the matrimonial home it is not unusual under itsekiri custom and several other customs in nigeria for a man and wife to live together in their matrimonial home, and for the woman or her family to even contribute towards building the house. inspite of this, a widow is precluded from inheriting her matrimonial home upon the death of her husband irrespective of whether or not she contributed personally or was assisted by her own family in providing land or funds for building the matrimonial home. in the case of oke v oke,50 the plaintiff sued claiming to inherit their father’s residence as against the defendant who is the eldest son of the deceased. the plaintiff contended that the land on which the house was built was allocated to his mother by her father who in turn gave it to her husband to erect a building. it was further contended by plaintiff that their deceased father had by will bequeathed the house to him. in its decision on who was entitled to inherit their deceased father’s residence under itsekiri/urhobo customary law, it was held by the supreme court of nigeria that under itsekiri /urhobo customary law, the residence of a deceased man devolved upon his death to his eldest son and that the testamentary disposition of a deceased itsekiri man was subject to the customary law under which he lived and died51 widower’s inheritance rights over deceased wife’s property in the past and even in modern times, women married to itsekiri men have, through their own efforts or with the support of their husband, owned realproperties in their own name at the time of their death. it is also not unusual for wives to sometimes predecease their husband leaving behind properties. just as it is with widows, under itsekiri customary laws, a deceased woman’s husband is barred from inheriting any of his deceased wife’s property. under the custom, it is the children of the deceased wife that have exclusive right of inheritance over their mother’s property to the exclusion of the husband. where the woman had no issue for the man, her property goes to her biological siblings or relatives irrespective of whether the husband contributed substantially to building or acquiring the real property or whether he even built it for his deceased wife. apart from the husband, no member of his family can 46sagay (n40) 269. 47ogbobine (n17) 482000 {www.au.org} accessed june 18 2020 49protocol to african charter (n48) art. 21. 50oke v oke [1974] anlr 401 (sc). 51wills law delta state 2008 s3(1) acarelar 2 (2021) page | 7 partake in sharing of the property and even the deceased woman’s step children are excluded. rai ogbobine,52stated this old rule of itsekiri customary law as follows: in the case of a deceased woman, her children inherit her property but until the property is shared, the eldest child whether male or female takes absolute control of their mothers estate. nobody in the husband’s family is allowed to participate in the sharing of the property. neither a wife nor the husband can inherit the property of the other spouse on the death of either of them; such property is for the children and never for the surviving spouse. some share may also be given to her younger brothers and sisters. from the foregoing, it is evident that the men appear to also suffer discrimination with regard to their deceased wife’s property by being excluded under itsekiri customary law from sharing in same even where they substantially contribute to acquisition of the property. however, it is argued that unlike the widows, widowers are not on the death of their wives construed as part of the estate of the deceased woman to be shared and inherited by members of her family. it has been posited by a. tedeye,53 that this custom is predicated upon the assumption that the husband would predecease his wife and as such would not usually be present to inherit his deceased wife’s property. henotes that this inheritance practice against husbands where their wife predecease them is being challenged in several quarters in itsekiri land especially in instances where the deceased woman has no child for her husband and the man either substantially contributed to or acquired the property for his wife during the marriage.54 he further remarked that in contemporary times, some men have resorted to self-help in enforcing their rights to their deceased wife’s property either for themselves or the step children of the deceased who cared for her during her life time. 55 it is argued that beyond the legal route, women should be mobilized to collectively advocate for their rights of inheritance to their deceased husband’s property as custom is not static but dynamic and the courts will usually give effect to the current living custom of a particular people inclusive of the itsekiris.56 since exclusion of men from inheriting their deceased wife’s property is being resisted in certain instances, same should apply in an even larger scale to the women who also contribute their own quota in assisting their husbands to acquire and retain such properties. it is also argued that since the present generation are opposed to customary inheritance practices under itsekiri custom relating to widows and widowers inheritance, it should be reformed so as to ensure its validity as it has been held by the supreme courtthat courts will only enforce a custom when it is not outdated custom with which present generations cannot be linked57 children’s inheritance rights over deceased fathers property one notable feature of itsekiri customary law of inheritance is that both male and female children have rights of inheritance over their deceased father’s property in equitable shares, although the eldest son is usually given preference as he has the exclusive right to inherit the deceased father’s residence.58 another feature of the system is that all children of the deceased are entitled to inherit irrespective of whether they were born by the wives of the deceased or by his concubines. in providing further insight into this custom i.e sagay,59quoting omoneukarin stated that ‘both the children born in wedlock and in concubinage in theory had equal rights, but the former were, want to insist on a better consideration. the eldest son who was generally the next of kin had the largest claim’. with regards to children to the deceased man in concubinage, the itsekiri customary laws provides for methods of ascertaining whether a child is the legitimate child of the deceased upon his death. these tests as stated by ogbobine,60 that the deceased man introduced the child’s mother to some important members of his family before his death as having a child or children for him. a. he paid the hospital bills during the period of pregnancy and at the birth of the child. b. he was fully or largely responsible for education of the child. 52ogbobine (n17) 109. 53a tedeye‘widow’s and widower’s inheritance rights in itsekiri custom’ (unpublished paper presented at seminar for selected itsekiri youths (daeli sapele 2010 4) 54ibid 6 55tedeye (n53) 7. 56oyewunmi v ogunesan [1990] 3 nwlr (pt 137) 182 (sc). 57agu v ikewibe [1991] 3 nwlr (pt. 180) 385 (sc). 58oke (n50) 59sagay (n40) 269. 60ogbobine (n17) 111. atsenuwa: a critique of discriminatory inheritance practices and widowhood rights under itsekiri customary law in south-south nigeria page | 8 c. the man introduced the child to some of his relatives and friends. d. after birth of the child, he allowed the mother to participate in functions organized by members of the family such as marriages, burials etc. e. it was known that the woman had prepared food for him or he had eaten in the woman’sresidence. f. he had allowed his mother or female relations to assist the woman after delivery of the child g. he gave the child a name. h. he made other significant utterances that were sufficient to infer that he is the father of the child. it is argued that since itsekiri custom is embracing with respect to inheritance rights of children, it should be reformed to embrace widowhood inheritance rights. transformative case law on widowhood inheritance rights in the recent judgment of the supreme court of nigeria in the case of anekwe v nweke61the apex court appears to have come to the rescue in terms of discriminatory inhuman inheritance practices against women especially widows and daughters under customary laws. the court reversed itself and departed from its earlier judgment in a plethora of cases, 62 and held that the igbo customary law practice, and indeed all customs in nigeria, which barred a daughter and wife from inheriting the property of their deceased father/husband was unacceptable in a civilized society and repugnant to natural justice, equity and good conscience. the facts of this case were that the respondent as plaintiff at the high court of anambra state in her amended statement of claim filed on the 30th day of may 2000 sought the following reliefs: wherefore the plaintiff claims against the defendants jointly and severally, as follows: (a) a declaration that the plaintiff is the person entitled to statutory (b) right of occupancy of the piece or parcel of land which is situate at amikwovillage awka and verged red in her plan no: tld/and/92 and filed with this statement or claim. (c) an injunction restraining the defendants, their servants or agents from further trespass on the said piece or parcel of land (d) an order of court compelling the 2nd defendant to remove part of his building constructed into the plaintiff’s land (e) an order of court compelling the defendants to share the nwogbo okonkwo eli family lands averred in paragraph 16 of this statement of claim. 63 in its decision, the trial high court found in favour of the plaintiff/respondent and granted the declaration/injunction while at the same time dismissing the counter-claim of the defendants. dissatisfied, the defendants/appellants appealed to the court of appeal which dismissed their appeal. being further dissatisfied, the appellants appealed to the supreme court. in determining the appellant’s appeal, one of the questions determined by the supreme court was whether the custom of awka people of anambra state which denies a woman of her right to her deceased husband or father’s property is repugnant to natural justice, equity and good conscience. delivering its landmark judgment on this issue, the supreme court per ogunbiyi jsc held: my noble lords, the custom pleaded herein, and is a similar custom in some communities wherein a widow is reduced to a chattel and part of the husband’s estate, constitute, in my humble view, the height of man’s inhumanity to woman, his own mother, the mother of nations, the hand that rocks the cradle. the respondent is not responsible for having only female children. the craze for male children for which a woman could be denied her right to her deceased husband or father’s property is repugnant to natural justice, equity and good conscience.64 61anekwe v nweke [2014]: 234 lrcn 34 (sc); [2014] lpelr 22697 (sc). 62mojekwu v iwuchukwu[2004] 18 nscqr 184 (sc). 63anekwe (n61) 64ibid acarelar 2 (2021) page | 9 in his own concurring judgment in this case which roundly condemned the awka custom and other similar customs that disinherited a woman from inheriting her deceased husband or father’s property, ngwuta, jsc held thus: my noble lords… the craze for male children for which a woman could be denied her rights to her deceased husband or father’s property is not justified by practical realities of today’s world. children, male or female, are gifts from the creator for which parents should be grateful. the custom of akwa people is barbaric and takes the awka communities to the era of cave man. it is repugnant to natural justice, equity and good conscience and ought to be abolished. 65 the supreme court not only declared the awka custom that denies a woman the right to inherit her husband or father’s property as ‘the height of man’s inhumanity to woman’, ‘uncivilized’ ‘and return to the era of the cave man’, it emphatically stated its distaste for this discriminatory custom by declaring it repugnant to natural justice, equity and good conscience. the apex court went further to state that those practicing such a custom in any community in nigeria should be decisively and punitively dealt with to serve as a deterrent to others. the court roundly stated its position in this regard thus: any culture that disinherits a daughter from her father’s estate or wife from her husband’s property by reason of god’s instituted gender differential should be punitively and decisively dealt with. the punishment should serve as a deterrent measure and ought to be meted out against the perpetrators of the culture and custom. it is submitted that by its farreaching pronouncement on the subject matter of discrimination against widows and daughters in most cultures of nigeria, this judgement of the supreme court appears to be a judgement in rem which is applicable to both parties and non parties to the suit, 66 as it can be generally applied with respect to any culture or customary law in nigeria (inclusive of itsekiri customary law) that disinherited a widow from inheritance rights over her deceased husband’s property or estate. the above decision of the supreme court in the anekwe’s case has revolutionized the law on widowhood/female inheritance/succession rights under the various customary laws in nigeria and introduced a new vista and judicial basis for equitable rights of women to inherit their deceased husband or father’s property. the supreme court went further to give legal teeth to its decision abolishing such discriminatory customary law practices against widow’s and daughters by holding that the perpetrators of such uncivilized practices should be decisively punished to serve as a deterrent to others. 5. conclusion and recommendations this paper concludes as follows: the judgment of the supreme court of nigeria in the case of anekwe v nweke has revolutionized the customary law landscape of nigeria and has reinforced the constitutional and natural rights of widowsof a deceased man to inherit their husband’s property. inhuman and uncivilized customary practices which saw widows as chattels to be inherited, have been abolished and declared repugnant to natural justice, equity and good conscience. this paper makes the following recommendations: the customary marriage practice of paying bride price on women which provides a cultural foundation for discrimination and gives the men a wrong feeling of proprietary rights and ownership of their wives should be abolished. in the alternative a system where the husband provides gifts for his wife and her family at marriage should be encouraged. the national assembly and states houses of assembly should urgently pass legislations making it a criminal offence to discriminate against widows/females in any form, and providing stiff punishment for such discrimination. courts in nigeria should fully invoke the provisions of section 42 of the constitution as well as other laws and domesticated international conventions to protect women and ensure that their inheritance rights under customary laws are fully enforced. human rights groups and women advocate should lead the struggle to ensure that governments at all levels are alive to their constitutional duties of protecting the fundamental rights of citizens, especially women and girls. women should be mobilized to carry out advocacy and peacefully protest and seek changes in widowhood inheritance rights and other discriminatory customary law practices against women under itsekiri customary law. immediate steps should be taken to domesticate cedaw in nigeria so as to ensure its full applicability. 65anekwe (n61) 66adeniran v hrh oba ibrahim [2018] 76 nscqr 111 african customary and religious law review (acarelar) 5 (2024) 165 | p a g e treatment of aliens in international law: applicable rules when citizens become aliens* abstract state succession as a global phenomenal is not peculiar to a region or sub region. state succession issues can result from transfer of territory, unification, separation, among others; the entities are classified as the predecessor and the successor states. the predecessor state maintains the existing legal personality while the successor state is the new state emerging from the existing one. the case of succession is a critical aspect that can nullify the legal personality of an individual where a new state is created, or emerges; the nationals of the new state may become aliens in the former state. what then happens to the person who is now an alien in the former state and their property? how should such a person be treated while he/she remains in the old state and their property? these are issues discussed in this chapter. the authors adopted the doctrinal approach, employing secondary sources such as books, journals articles, reports and internet sources. the experience of the authors also contributed. this study further discussed the position of international law for the treatment of aliens. keywords: aliens, citizens, international law, statelessness, state succession 1. introduction the state is regarded as the primary subject of international law. the criteria for statehood in international law are fairly settled. the montevideo convention on the rights and duties of states concluded by the organisation of american states1 is commonly accepted as reflecting, in general terms, the requirement of statehood in customary international law. according to the convention2 ‘the state as a person in international law should possess the following qualifications: (a) a permanent population (b) a defined territory (c) government and (d) capacity to enter into relation with other states’. however, according to brownlie, there is some evidence however, to suggest that these requirements which are concerned solely with the effectiveness of the entity claiming the rights and duties of a state, have recently been supplemented by others-independence achieved (i) in accordance with the principle of self-determination and (ii) not in pursuance of racist policies of a political or moral characters.3 in history, states rise and states fall, others go into extinction by various ways and means. state succession is a concept that is used to describe a definitive replacement of one state by another with regard to the exercise of sovereignty and in accordance with international law. events that may lead to such dismemberment of an existing state include’ secession, war and decolonization, merger of existing states into a new one, annexation and cessation. according to brownlie, succession is predicated upon the permanent displacement of sovereign power and thus temporary changes resulting from belligerent occupation, agency, or grant of exclusive possession of territory by treaty are excluded.4 the object of state succession is often controversial and uncertain. in most cases, issues relating to it are not susceptible to any generalized theory. there is evidence in state practice suggesting that each case is determined by its own peculiar circumstances and special agreements concluded for dealing with consequences arising therefrom. nevertheless, the international law commission (ilc) have attempted a codification of rules on state succession in two separate conventions, namely, the 1978 convention on succession of states in respect of treaties and the 1983 convention on the succession of states in respect of property, archives and debts, with little success. both treaties received a limited number of ratifications on the grounds that it departed from established international law on the subject. however, it has been rightly observed that the international transformation of the last two decades, have revealed a tendency to rely on them or at least some of their provisions to resolve controversial questions for want of a better articulation of legal principles involved5. one of the fundamental issues that may arise following state succession is the question of nationality which the present study intends to deal with extensively. this is because in such cases, nationals of the new state who were hitherto its citizens may become aliens. in customary international law, the terms and conditions for the award of nationality and loss of it is essentially within the domestic jurisdiction of states. thus, nationality questions are determined by domestic law. however, as earlier stated, problem may arise in the context of state succession which may ipso facto culminate in questions relating to the loss of nationality, statelessness and the treatment of aliens and their property in international law. this is because nationality changes with sovereignty. furthermore, *by f.c. nwoke, phd, department of international law and jurisprudence faculty of law, university of jos. email: fridaychijioke@gmail.com; and *sesan a. peter, phd, centre for conflict management and peace studies, university of jos. email: sesanpee@yahoo.com 1montevedio convention 1933. (1934) 165 l.n ts 19. 2 art. 1. ibid 3 see: d.j. harris, cases and materials in international law (6th ed.). london: sweet & maxwell. p.99 4 james crawford (ed.) browlie’s principles of international law, oxford: oxford university press (oup) 423. 5 see: brownlie, ibid p. 424. the 1978 convention is in force with 22 parties and the latter not in force. see also: gabcikovonagymaros project (hungary v slovakia) icj rep 1979. p.7 70-72. ilc mailto:fridaychijioke@gmail.com nwoke & peter: treatment of aliens in international law: applicable rules when citizens become aliens 166 | p a g e it may entail the violation of rights contained in international human rights instruments. this study attempts to unravel the controversies surrounding the changes in nationality of a person also identity the circumstance(s) under which a person can becomes an alien under international law and what happens to the property of such a person in the former state? this study will make recommendations. 2. conceptualization state succession the concept of state succession is not entirely new in international law. there are different grounds for which state succession can take place within the confines of law. state succession is ‘the replacement of one state by another in the responsibility for the international relations of territory’6. this definition will be the thrust of this research because of the broad base of the definition which shows that state succession can come up through several dimensions and not a straight jacketed thing.7 state succession comes into existence as a result of the aforementioned replacement of one state by another in the responsibility for the international relations of territory such as (but not limited to) succession, or a state which has acquired territory as a result of state succession. further to this, a ‘predecessor state’ is a state which has lost territory. if a predecessor state is however recognized as possessing the same international legal personality despite a change in its circumstances caused by succession, it is a ‘continuator state’. emanuelli8 on his part argues that changes which affect the territory of a state give rise to so called succession of states. the transfer of the territory known in 1803 as louisiana, by france to the united states of america, illustrates both the concept of state succession, as well as some of the issues arising from it, the issue of alien. the rules governing state succession in international law have evolved overtime. however, the solutions which were developed two hundred years ago to deal with most of the issues arising from the louisiana purchase seem to be in line with current rules governing the transfer of a territory from one state to another. devaney,9gives a taxonomy under which state succession can take place. the first category is transfer of territory, where one part or parts of the territory of a state is transferred to become part of the territory of another state.10 the second category is that of unification, which contains within it two sub-categories: (i) incorporation of one state into another, and (ii) mergers of multiple states to form one. the third and fourth categories are the separation of one part of a state to form another state or states and the complete dissolution of a state into a new state or states. succession happens on the basis of a rupture in the international legal personality of a pre-existing state or states. the law of state succession regulates the legal effects of a change in responsibility for international relations of a territory caused by the transfer of territory, unification, separation and so on. the concern is that the predecessor state continues to maintain her legal personality since the status in international law has not changed but the new state has acquired new identity in international law. likewise, the nationals of the predecessor state maintained their identity but the new state whose nationals are predecessor state are now termed as alien in the former state. one of the fundamental issues that arise from succession of states is what consequence(s) arise for inhabitants of the predecessor as successor state. as earlier noted, inhabitants of the predecessor state retain their nationality while other inhabiting or having a link with the successor state becomes aliens in the predecessor state, though it is not as simple as that, and more often than note, such issues may be settled by agreement if becomes necessary to determine who the alien is actually an alien. an alien an alien is a person who is not a citizen or national of the state concerned. article 2 of the principles concerning admission and treatment of aliens, 25 february 1961 clearly stipulates that: (1) the admission of aliens into a state shall be at the discretion of that state. (2) a state may(i) prescribe conditions for entry of aliens into its territory(ii) except in special circumstances, refuse admission into its territory of aliens who do not possess travel documents to its satisfaction-, (iii) make a distinction between aliens seeking admission for temporary sojourn and aliens seeking 6 see also the decision of the arbitral tribunal in the case concerning the arbitral award of 31 july 1989 (guinea-bissau v. senegal) 83 ilr 31 7matthew craven, ‘the problem of state succession and the identity of states under international law’ (1998) 9 ejil 142; 8emanuelli, c., state succession, then and now, with special reference to the louisiana purchase (1803) 63 la. l. rev. (2003) available at: https://digitalcommons.law.lsu.edu/lalrev/vol63/iss4/19 9 james g. devaney, what happens next? the law of state succession gcils working paper series no. 6, november, 2020. glasgow centre for international law & security 10 the transfer of alaska from russia to the usa in 1867, the 1871 transfer of alsace and lorraine to germany from france, the treaties of versailles in 1919 (versailles, st german and trianon) and treaties following world war ii concerning germany, italy romania and hungary. see also the transfer of west new guinea from the netherlands in 1962, the transfer of walvis bay from south africa to namibia in 1994 among others. african customary and religious law review (acarelar) 5 (2024) 167 | p a g e admission for permanent residence in its territory; and (iv) restrict or prohibit temporarily the entry into its territory of all or any class of aliens in its national or public interest11. it follows that an alien is a non-national of a state. in customary international law, states have a general freedom to determine questions relating to the acquisition of its nationality. accordingly, in nationality decrees in tunis and morocco case,12the permanent court stated the law as follows: ‘the question whether a certain matter is not solely within the jurisdiction of state is an essentially relative question; it depends on the development of international relations. thus, in the present state of international law, questions of nationality, are in the opinion of the court, in principle within the reserved domain’. in the same vein, the special rapporteur of the international law commission (ilc) manley o’ hudson put it, in principle, question of nationality falls within the domestic jurisdiction of each state. however, while this represents the position of the law, such freedom is not absolute and is subject to the rules against statelessness as well as other international human rights legal regime. on the corollary, the states retains the power of admission and expulsion of non-nationals from its territory. in attorney general for canada v cain13: ‘one of the rights possessed by the supreme power of every state is the right to refuse or permit an alien to enter that state, to annex what conditions it pleases to the permission to enter it, and to expel or depot from the state, at pleasure even a friendly alien, especially if it considers his presence in the state opposed to its peace, order and good government, or to its social or material interests’. however, in contemporary law, the exercise of rights of states in this regard must not violate the rights of the alien as enshrined in international human rights law14. prior to the emergence of human rights law (and contemporary refugee law), limited protection existed for aliens under international law, reflecting their generally low status in society. however, it has long been recognised that the state of nationality is entitled to demand that the host country treat the former’s citizens in a manner compatible with the minimum standard set down in customary international law. this right of the country-of-origin stems from its retention of personal supremacy over her nationals, even though the host state possesses territorial supremacy.15 accepting an alien in a country is within the prerogative of the receiving state. citizens of a country have the right to enter and leave that country.16 while no state may expel its nationals, it is the sovereign prerogative of states to regulate the presence of foreigners on their territory. this power is not unlimited and international human rights law places some restrictions on when and how to exercise this power. with regard to expulsions, three types of protection are available, namely substantive protection against return to face grave violations of human rights, procedural safeguards during deportation procedures, and protection with regard to the methods of expulsions. in addition to the general protection afforded to all foreigners, certain categories of foreigners, such as refugees and migrant workers may be afforded additional protection against expulsions and/or benefit from additional procedural guarantees. as a preliminary remark, one should note that many terms are used by states to refer to ‘expulsions’: in some cases, these are called ‘deportations’, ‘removals’, and so on. 3. state succession with regards to property, archives and debts state succession regarding the property, archives and debts has become a popular discourse within the confines of customary international law. property of the new state and their nationals in the predecessor state has become a point of argument as some school of thought feel that the property automatically becomes the property of the predecessor especially the remaining nationals of the successor (new) state within the confines of the predecessor (former) state. this is contained in the work of ilc as directed by the united nations general assembly (unga) in 1983 in the adoption of the vienna convention on succession of states in respect of state property, archives and debts (vcssp). however, this time around the 1983 vcssp did not immediately attract the signatures of states, and in fact with only seven contracting parties presently and has not entered into force. article 9 of the vcssp proved that the property rights of the predecessor state which cease to exist expire at the time succession occurs and are replaced by the equal rights of the successor state. the convention as well protects the relevant property rights of third parties. under the convention, in relation to all different types of state succession, immovable property is to be automatically transferred to the respective successor state or states.17 further to this, in situations of separation or dissolution, the vcssp convention provides that the successor state is to acquire 11 article 2 of the principles concerning admission and treatment of aliens, 25 february 1961 12 (1993) pcij series b. no 4: 24 13 (1906) a.c. 542 at546 14 see e.g. the decision in yearger v iran (1987) 17 iran-iis ctr 92 at 106. 15 see oppenheim’s international law (1992), volume 1, parts 2-4, page 903. 16 article 13 of the universal declaration of human rights provides that ‘everyone has the right to leave any country, including his own, and to return to his country’. article 12(2) of the international covenant on civil and political rights contains a similar provision, while article 12(4) guarantees that ‘no one shall be arbitrarily deprived of the right to enter his own country’. in addition, article 3 of the 4th protocol to the european convention on human rights, article 22(5) of the american convention on human rights, article 12(2) of the african charter on human and people’s rights and article 27 of the 2004 arab charter on human rights prohibit the expulsion of nationals 17 see devaney, op cit nwoke & peter: treatment of aliens in international law: applicable rules when citizens become aliens 168 | p a g e not only the immovable property located in its territory, but also the movable property related to the activities of predecessor state in its territory, as well as an equitable share of the remaining moveable property.18 the state practice relating to moveable property is still not clear. in the case of czechoslovakia, the vcssp was adopted which was not the same with what was obtainable in yugoslavia case in which ec conference in its opinion no. 14 stated that ‘public property passes to the successor state on whose territory it is situated.’19 this practice appears to have precludes the formation of customary international law in this area and the fact that vcssp has not attracted enough parties to enter into force, only reinforces the need for states to reach an agreed solution on an ad hoc basis20. similarly, in the case of cession of territory or separation, the convention provides succinctly that, successor state must pay an equitable proportion of the debt of the predecessor state. when it comes to state debt and moveable financial assets located abroad, state practice has been greatly influenced by the failure of the czech republic and slovakia to reach an agreement on these matters. the different international financial institutions such as the international monetary fund (imf) and the international bank for reconstruction and development, and the agreement concluded between the yugoslav successor states. from this, it shows that the debts of any sort are applicable to the seceding state, become the responsibility of the successor state.21 treaty based arrangement in the context of republic of sudan and the new state of south sudan, who concluded an agreement on ‘certain economic matters’ in year 2012 where both agreed that the continuing state, the republic of sudan would retain all external debts, liabilities and external assets of the continuing state. they both agreed that, ‘the two states shall treat domestic assets and liabilities in accordance with the territorial principle, by which assets and liabilities have a domestic connection to the territory of sudan shall be allocated along territorial lines and attributed to the respective state’. accordingly, under this agreement, both domestic assets (including moveable and immoveable property) located on the territory of a state and liabilities associated with the territory of that state, are be attributed to it. in respect to individual property in the predecessor state, the principle of non-discrimination has been employed in most recent multilateral instruments to ensure that the property of aliens is secured and treated without any form of discrimination whatsoever. such multilateral agreements include the havana charter for an international trade organization (1948) and the economic agreement of bogotá (1948), as well as in the united states friendship, commerce and navigation (fcn) treaties. also, north american free trade (nafta),22 the energy charter treaty23 and the organisation for economic cooperation and development (oecd) draft multilateral agreement on investment where the principle of alien non-discrimination is subjected to various interpretation and contexts. this (oecd) initiative notes and comments to article 1, a clear reference was made to the source of the standard: ‘the standard required conforms to the ‘minimum standard’ which forms part of customary international law’24 it is important to note here that the draft oecd convention was used by most oecd countries as the basis for their international investment agreement (iia) negotiations. again, the emergence of human rights law over the last fifty years has had a tremendous impact on the position of aliens, and therefore refugees, in international law. in general, human rights law does not distinguish between aliens and citizens. the notable exception is with regard to the right to participation in an electoral process. the efforts of unhcr have led to greatly increased accessions by african states to the convention relating to the status of stateless persons and the conventions on the reduction of statelessness. in west africa, regional and national declarations and plans of action to prevent and reduce statelessness reference these treaties front and center in the reforms and activities they propose. similar documents adopted by international conference on the great lakes region, with unhcr support, are also evidence of a political recognition of the damage that lack of access to citizenship has caused. the draft protocol to the african charter on human and peoples rights on the right to a nationality and the eradication of statelessness adopted by the african commission on human and peoples’ rights in 2015 would radically strengthen rights to ‘belong,’ if endorsed by the political institutions of the au. the impact of this increased normative effort at continental level is too soon to tell. 4. nationality of persons and state succession the problem of state succession with respect to the inhabitants of territory is essentially a problem of nationality, of how to attribute the nationality of predecessor and successor states among those individuals affected by the change in sovereignty. this was experienced by the affected people when eritrea was carved out of ethiopia. sharpening the concepts and functions of nationality under discussion is necessary at the outset because the subject 18 article 17(1) (c) vcssp 19 european community conference on yugoslavia arbitration commission opinions no.14 at 731. 20 devaney, op cit 21 ibid 22 north american free trade agreement, dec 17 1992, us-mex.can32 i.l.m.605. 23 european energy charter treaty, dec 17, 1994, i.l.m. 360. 24 (oecd, 1967, p. 120). african customary and religious law review (acarelar) 5 (2024) 169 | p a g e of nationality is an aspect of several different areas of international law and differs among the various domestic legal systems of states both in africa and globally. according to blackman25, an initial distinction must be drawn between the nationality of natural persons and that of legal persons. the nationality of legal persons is hereby excluded from consideration. the discussion here concerns not the national identity of corporations but that of human beings. the reasons for this exclusion are both practical-a paper this length can cover only so many issuesand substantive-the body of law that has added the most substance to nationality issues is international human rights law, which pertains to people, not to corporations. some might also add a moral dimension, that problems faced by human beings are more compelling than those faced by corporate entities and therefore deserve greater consideration. a further distinction must be drawn between nationality as a legal term describing membership in a state, and nationality as an ethnological term connoting an historical relationship to a specific ethnic, linguistic, or racial group.26 these two concepts of nationality are sometimes co-extensive and indistinguishable in practice, particularly in ethnically homogenous states. for purposes of clarity, however, keeping the concepts separate is important because one does not necessarily follow the other. for example, although most irish nationals in the ethnic sense are also nationals of the republic of ireland in the legal sense, most irish persons living in northern ireland have never been nationals of the republic of ireland; their families have been nationals of the united kingdom for generations. conversely, although most nationals of malaysia in the legal sense are ethnic malays, there is also a significant population of ethnic chinese, some of whom are malaysian nationals in the legal sense, but some of whom still carry the ‘overseas nationality’ of the republic of china or the people's republic of china (as the case may be).27 that one of the two concepts of nationality may predominate over the other is also possible, as is the case in the united states, in which nationality does not rest significantly on a notion of a specific ethnic identity, or in bosnia, in which ethnic nationality is far more important than nationality in the bosnian republic. the interplay between the two concepts is perhaps most interesting in states which have internal administrative units based on ethnic or tribal lines (whether or not the states are federal structures). for example, nationals of the former czechoslovak socialist republic never regarded themselves as ‘czechoslovaks;’ they were always either czechs or slovaks (and indeed, decided to dissolve their shared federation and form separate states along ethnic lines). on the other hand, the czech republic consists of ethnic czechs, moravians, and silesians, with administrative units specific to moravia, and with silesia including a separate polish-speaking linguistic community. yet the large majority within each of the three groupings regard themselves as czech, ethnically and politically, despite their separate characteristics. similarly, nationals of the democratic republic of congo (until recently the republic of zaire) appeared, at least until recently, to consider themselves zairians, despite the presence of some two hundred historical, linguistic, and ethnic (or tribal) groupings, and despite zaire's/congo's heritage as a recent de-colonial creation. the most important distinction for our purposes is that between nationality under domestic law and nationality as a matter of international law. nationality is created under domestic law. nationality is a legal relationship between an individual and a state, ‘conferring mutual rights and duties on both.’28 nationality is the means by which an individual acquires and exercises the rights and responsibilities of membership within the state. as such, nationality is the prerequisite for the realization of other fundamental rights. nationality has aptly been called ‘man's basic right, for it is nothing less than the right to have rights.29 changes which affect the territory of a state give rise to succession of states. the transfer of the territory known in 1803 as louisiana, by france to the united states of america, illustrates both the concept of state succession, as well as some of the issues arising from it. with time, the rules governing state succession in international law have evolved. however, the solutions which were developed two hundred years ago to deal with most of the issues arising from the louisiana purchase seem to be in line with current rules governing the transfer of a territory from one state to another.30 traditionally, for purposes of international law, these internal nationality categories were not considered legally relevant. international law governs the rights and duties of states; it is thus more concerned with the formal designation of state nationality for purposes of interstate relations, than with its internal functions. or as weis puts it, ‘nationality in the sense of international law is a technical term denoting the allocation of individuals, termed nationals, to a specific state-the state of nationality-as members of that state, a relationship 25 blackman, j.l. state successions and statelessness: the emerging right to an effective nationality under international law, michigan journal of international law, vol 19(4), 1141-1193. 26weis, p. nationality and statelessness in international law 3 (2d. ed. 1979). 27carol a. batchelor, stateless persons: some gaps in international protection, 7 int'l j. refugee l. 232, 233 (1995). 28 ibid 29independent commission on international humanitarian issues, winning the human race? 107 (1988) (quoting former chief justice of the u.s. supreme court earl warren). 30emanuelli, c. state succession, then and now, with special reference to the louisiana purchase (1803), louisiana law review, vol 63(4), 1277-1291 nwoke & peter: treatment of aliens in international law: applicable rules when citizens become aliens 170 | p a g e which confers upon the state of nationality ... rights and duties in relation to other states.’31 in other words, nationality in international law is the mechanism by which states designate individuals to themselves in dealing with other states; inquiring beyond this designation into possible internal categories of state nationality is not necessary.’32 however, nationality questions lie at the moving fault line between domestic state sovereignty and the evolving international legal system. within the latter, nationality straddles an intersection of several substantive bodies of law related to diplomatic protection, state responsibility, and international human rights. unsurprisingly, states jealously guard their prerogatives over nationality issues. over the last two and a half centuries, the state and its forerunners have held power over norms that regulate access to citizenship, which includes the rights and duties associated with being a citizen of a state.33 scholars argue that this discretion over citizenship is declining.34 everyone has the right to nationality under international law, and citizenship is slipping out of the state's control.35 yet, the state still controls much of citizenship and the lack of it-statelessness. the state is the overwhelming gatekeeper of citizenship. even in today's globalized world, the state continues to possess authority to govern its borders.36 the authority is not reposed upon an international parliament or people. in fact, since 9/11, there is a steady rise of laws opening up citizenship to the privileged, while restricting access to or stripping citizenship for the disadvantaged in the name of national security, the economy, national unity, and a host of other reasons.37 5. the uncertainties surrounding the minimum standard of treatment of aliens under international law the international law commission's elusive approach regarding the minimum standard of treatment of aliens apparently, the minimum standard of treatment of aliens has a secure and clear place in international law, since the icj recognized it in its judgment in the case concerning the barcelona traction light and power company limited (belgium v. spain), second phase when it said in passing that: when a state admits into its territory foreign investment or foreign nationals it is … bound to extend to them the protection of the law. however, it does not thereby become an insurer of that part of another state's wealth which these investments represent. … the real question is whether a right has been violated, which right could only be the right of the state to have its nationals enjoy a certain treatment guaranteed by general international law, in the absence of a treaty applicable to the particular case…38 however, the reference to the standard, although it more or less recognizes its existence as a matter of general international law, says nothing about its content, even at the highest level of generality, or regarding its nature as either a general principle or as a customary rule of international law. the uncertainty around the minimum standard of treatment of aliens under international law increases once one looks at the other readily available source for identification of international customs and their content, the works of the international law commission (ilc). the ilc has been unable to deal with the minimum standard of treatment of aliens and has avoided it for decades, which is telling evidence of the difficulty of defining the content of the standard. in effect, in 1957, the special rapporteur, garcia amador, tried to link the minimum standard of treatment of aliens with the new international human rights law produced after world war ii. however, the commission did not support this approach, and in 1963, decided that: ‘it was desirable to carry out a general study of the subject [of state responsibility], taking care not to confuse the definition of the rules relating to responsibility with that of the rules of international law and in particular those relating to the treatment of aliens-the breach of which can give rise to 31 that is not to say that international law does not look behind the formal designation of nationality to assess the factual connection between the individual and the state. 32that is not to say that international law does not look behind the formal designation of nationality to assess the factual connection between the individual and the state. 33 ayelet shachar, rainer bauböck, irene bloemraad & maarten vink, introduction: citizen-ship—quo vadis?, in the oxford handbook of citizenship 3, 8 (ayelet shachar et al. eds., 2017). 34see e.g., david jacobson, rights across borders: immigration and the decline of citizenship 9 (1996) (arguing that the distinction between citizen and alien has eroded because rights are more and more predicated on residency); linda bosniak, citizenship denationalized, 7 ind. j. glob. legal stud. 447, 449–50 (2000) (arguing that efforts to conceive of citizenship beyond the nation-state are coherent and desirable). certainly, i agree that thinking of citizenship as a changing or changed concept has merits, states nonetheless still control access to citizenship, as well as to its bundle of rights and duties. 35 ibid 36 ibid 37 see catherine dauvergne, ‘citizenship with a vengeance’, 8(2) theoretical inq. l. (2007) 38 international court of justice. judgment of 5 february 1970. [1970] i.c.j. rep. 3 87. [hereinafter] case concerning the barcelona traction light and power company limited (belgium v. spain), second phase, african customary and religious law review (acarelar) 5 (2024) 171 | p a g e responsibility’.39 again, in 2006, the ilc did the same when it released its draft articles on diplomatic protection. the ilc stated: diplomatic protection belongs to the subject of 'treatment of aliens'. no attempt is made, however, to deal with the primary rules on this subject – that is, the rules governing the treatment of the person and property of aliens, breach of which gives rise to responsibility to the state of nationality of the injured person. instead, the present draft articles are confined to secondary rules only – that is, the rules that relate to the conditions that must be met for the bringing of a claim for diplomatic protection. …40 the ilc's decision is simply the most telling proof of the fact that the content or contents of the standard are not clear,41 nor is the nature of the standard evident as a general principle of law or as customary international law. the standard exists, as evidenced by the icj's mention of it in barcelona traction, but its content, which determines when the actions or omissions of a state with regard to an alien fall below this minimum standard, is altogether uncertain, and so is its nature.42 international minimum standard or national treatment of alien the import of the international standard for treatment of aliens is the proposition that the international has set a minimum standard of treatment of aliens from which no state is allowed to derogate from. this is not withstanding how such state treats its own nationals. in other words, when it comes to matters relating to treatment of aliens, it is international that determine whether there has been a fair treatment of the alien and not the domestic law of the state. accordingly, it has been strenuously argued that while under customary international law, a state is under no duty to admit aliens into its territory, but once admitted, certain duties arise which the admitting state must fulfill. according to lillich, these duties may stem from conventional international law, obligations voluntarily assumed by the state. under bilateral treaty, a regional agreement or a universal convention but even when such conventional obligations are absent, customary international law requires that the state live up to certain minimum standards in its treatment of aliens. if it fails to do so, it renders itself internationally responsible to the alien’s state.43 we agree to some extent with the postulations of the author. this is because where there are bilateral or multilateral treaties setting out the obligations assumed by parties thereto, no problem arises but where there are none; reference to customary international appears quite vague since there seem to be no laid down criteria for determining what this minimum standard of treatment is. it has already been mentioned that the international standard of treatment is strenuously supported by the practice of most european states and the united states of america. this is so because the initial principles of international law were enunciated by a few european states solely for the purpose of enhancing their interests. the international minimum standard of treatment has the support of a lot of international scholars, the decisions of international arbitral tribunals and the practice of states and also received the support of majority of states at the hague codification conference of 1930. the international minimum standard or a moral standard for civilized states have the support of some learned authors like vattel, anzilloti, vedross, moore,44 eagleton, among others. one of the earliest proponents of this doctrine was vattel. although he focused mainly on responsibility of states for denial of justice, his proposition formed the basis for subsequent support arising both from writings of eminent scholars as well as state practice. 6. conclusion and recommendations this study has looked at the controversies surrounding succession within the confines of states in international vis a vis he rights of aliens in the new state and their assets in the previous state. the rules governing such 39 for a detailed analysis of the handling, of lack of it, of the ilc of the minimum standard of treatment of aliens, richard b. lillich, in richar b. lillich, ed., international law of state responsibility for injuries to aliens (charlottesville: university press of virginia, 1983) 1 20. 40 ilc commentaries…ibid 41 ian brownlie holds a similar view. ian brownlie, principles of international law 5 ed. (oxford: oxford university press, 1998) at 529 42 this is not to say that aliens can be treated in any way by states, but that the treatment depends on the factual situation of the alien and on the application to such facts of particular rules of international law, such as humanitarian international law or the vienna convention on consular relations, which, in particular, gives aliens specific rights when detained or imprisoned in states party to the convention. but the content of a general standard to be applied, regardless of specific factual situations, is uncertain. 43 op cit 44 moore, j.b. digest of international law (washington d.c. government press, 1906) p. 50. nwoke & peter: treatment of aliens in international law: applicable rules when citizens become aliens 172 | p a g e transmissions, and state successions generally, have evolved since the louisiana purchase. their evolution is linked to the replacement of the doctrine of continuity by the ‘clean’ slate doctrine under the influence of voluntarist theories. this development is reflected in the practice of states which became independent through the process of decolonization. however, state practice relating to state succession is not uniform. it often embodies both the doctrine of continuity and the ‘clean slate’ doctrine in a proportion which varies from case to case. yet, some rules seem to be well settled, such as the rules favoring the passage to the successor state of ‘real’ treaties, of immovable located on the territory transferred, and of archives necessary to administer that territory. these rules are usually found in devolution agreements which are often concluded between the predecessor state and the successor state. such was the case with respect to the transfer of louisiana from france to the united states. questions arising from this transfer were governed by three agreements. the solutions found in these agreements are informed by the doctrine of ‘universal succession’ which was applicable at the time. those solutions are generally in line with the rules developed by state practice and, to a certain extent only, with those codified by the international law commission with respect to the cession of a territory. as a rule, the solutions developed by the commission to govern issues arising from state succession hardly reflect the practice of states. as a result, the documents in which these solutions are embodied did not get much support from states. however, international community must collectively articulate clear standards for avoiding statelessness in state succession, such as by creating an optional protocol to the 1961 convention on the reduction of statelessness using as a basis for the international law commission articles and the state council of european convention. okpalaobi & akorah: discriminatory inheritance practices and the rights of women in nigeria 87 discriminatory inheritance practices and the rights of women in nigeria* abstract in some ethnic groups in nigeria, daughters and wives are prohibited from inheriting the landed property of their deceased fathers and husbands. considering the huge economic value currently placed on real estate, the poverty of women could be alleviated if they can be allowed without discrimination, to deal on family’s real estate equitably. arguably, the male members of the family most often than not, engage in sale of the inherited properties as a result of which they become billionaires overnight. what is good for the goose is good for the gander. this article examined the discriminatory nature of inheritance rights of women in nigeria. the methodology of the paper is doctrinal in collecting and analyzing data from primary and secondary sources. this study discovered that practice of male primogeniture is prevalent in nigeria and that there is a general discrimination and violation of women’s right to inherit even in light of the plethora of court decisions which have heavily condemned the practice as being an infringement on the fundamental rights of women as enshrined in chapter iv of the constitution of nigeria 1999 (as amended) and other relevant international and regional laws. this study made some recommendations which includes but not limited to the following: wills should be made so that the testators share their properties amongst the beneficiaries, in doing so, some discriminatory inheritance practices against women can be avoided. statutory marriages should be conducted in addition to the customary marriage ceremonies because the law protects the wife and children of a statutory marriage as opposed to customary marriages as the spouse is given priority in administration of the deceased estate or better still, customary marriages should be upgraded to the status of statutory marriage. keywords: women, inheritance, nigeria, male primogeniture, discrimination 1. introduction cultural and religious practices which divest the property of a deceased man to only the male members of his family, leaving out the wives and daughters though have been criticized by several scholars and held by the apex court in nigeria to be discriminatory against women,1 these customs continue to abound. customs where a woman’s late husband’s properties have been forcefully divested to the husband’s brother because she was unable to give birth to a male child, have been condemned by both the court,2erudite scholars and the society at large, but these practices have not ceased to exist, in a bid to answer the question of how the law which is an instrument of social engineering, contributed in the management of these challenging issues relating to the inheritance right of women, the researcher found it pertinent that some relevant statutes, both domestic and international laws, including case laws relating to the succession rights of women be considered. these laws has been made over time to address the issues bothering on women rights globally. the supreme court has in recent times considered the issue of the succession rights of women in several cases like the cases of mojekwu v mojekwu,3ukeje v ukeje4 and anekwe v nweke.5 it is pertinent that these laws continue to be emphasized to illustrate their usefulness in challenging discriminatory inheritance practices against women. 2. definition of terms some reoccurring terms are defined in the context in which they are used in this study. the researcher adopts the definitions herein, as follows: inheritance inheritance is defined by the black’s law dictionary6 as property received from an ancestor under the law of intestacy or property that a person receives by bequest or devise. okpalaobi and okaphor7 defined inheritance as ‘the practice of passing on property, titles, debts, rights and obligations upon the death of an individual’. *by beatrice nkechi okpalaobi, llb (hons), bl, llm, phd, professor of law, faculty of law, nnamdi azikiwe university, awka, anambra state nigeria. tel: 08034700544; and *chinelo ruth akorah, llb (hons), bl, llm candidate, faculty of law, nnamdi azikiwe university, awka, anambra state nigeria. tel: 08162450546, email: akorahchinelo@gmail.com 1 see, mojekwu v mojekwu (1997) 7 nwlr (pt 512) p.283; ukeje v ukeje (2014)11 nwlr (pt 1418)384; (2014)4 s.c; (pt. 1)1) ; (2014) lpelr 22. 2anekwe v nweke (2014) 9 nwlr (pt 1412) 393.sc; (2014) 4 s.c. (pt. iii) 65. 3mojekwu v mojekwu (n 2). 4ukeje v ukeje(n 2). 5anekwe v nweke (n 3). 6 b a garner, black’s law dictionary, 10th ed (thomas reuters, st paul mn, west publishing co; 2014), african customary and religious law review (acarelar) 4 (2023) 88 discrimination it defined by the black’s law dictionary as the effect of a law or established practice that confers privileges on a certain or that denied privileges to a certain class because of race, age, sex. right according to ogbu,8 right in the noun form means that to which a person has a just and valid claim, whether it be land, a thing, or the privilege of doing something or saying something. 3. types of inheritance law in nigeria the laws governing inheritance in nigeria can be divided into two broad types namely: testate and intestate.9 testate inheritance when a man dies, the devolution of his self-acquired property depends upon whether or not he has made a will. if he has made a will, the property will devolve according to the direction contained in the will, and the succession is described as testate. if he has made no will, or has made one which at his death has become totally inoperative, he is said to die intestate, and the devolution of his property will be governed entirely by the rules of law prescribing the order of succession upon intestacy, this was held in the case of chukwu v okoh.10in nigeria there is no uniformity of applicable law relating to wills. some states have created their wills laws, like the wills law of lagos state, 1990, the wills law of oyo state, 1990, the succession (estate of deceased persons) law, cap. 4 revised laws of anambra state 1991 and enugu state administration of estate law, 1991 are laws governing succession in these states, although both anambra and enugu law cover testate and intestate. section 140 of anambra state administration and succession (estate of deceased persons) law, stipulates the way and manner a valid will should be executed as it concerns anambra state in particular. section 3(1) of the wills law, 1958 provides that real or personal estate which cannot be disposed by the applicable customary law cannot be disposed by will. for instance, the un-partitioned family land in which the testator has no demarcated interest11 cannot be disposed by will. as it is the position of several customary laws in nigeria, the house wherein the testator lived and dies cannot be disposed by a will.12 however this was otherwise decided by the court of appeal in the 201413 case of okafor v okafor14considered sections 136, 137 (1), 138 (1) and 164 (1) of the administration and succession (estate of deceased persons) law of anambra state, 1991 and held that section 137 (1) of the administration and succession (estate of deceased persons) law of anambra state contains no qualification or limitation to the testator’s capacity to make a will or the property to be devised. intestate inheritance generally, when a person dies without a will, the type of marriage contracted by the intestate person is the factor which determines which system is to apply,15either conducted under the marriage act or under customary law. intestate inheritance basically involves the application of three systems of law, which are: the common law, the administration of estate laws of various states and customary law.16 7b n okpalaobi and e f okaphor, ‘revisiting the case of ukeje v ukeje viz a viz igbo customary inheritance’ (2017) (6) (4) ng-journal of social development, 84. 8 o n ogbu, human rights law and practice in nigeria, (2nd revised ed. vol. 1, 2013, snaap press ltd)1. 9p o, itua ‘legitimacy, legitimation and succession in nigeria: an appraisal of section 42(2) of the constitution of the federal republic of nigeria 1999 as amended on the rights of inheritance’ [2012] 4 (3) journal of law and conflict resolution, 31-44. 10 (2016) lpelr-42117(ca). 11ei nwogugu, family law in nigeria (3rd edition, hebn publishers plc. 2014) 399. 12 see idehen v idehen (1991)6 nwlr (pt. 198). 13 we await a confirmation or otherwise from the supreme court. 14(2014) lpelr-23561(ca). 15itua (n 10) 35. 16ibid; m a bello, ‘principles and practice of succession under customary law’, a paper delivered at the national judicial institute on 22nd march, 2017, p 2. okpalaobi & akorah: discriminatory inheritance practices and the rights of women in nigeria 89 intestate inheritance under the marriage act or statutory marriage in a case of marriage conducted under the act, it is the indigenous law, i.e., the law of the state of origin of the deceased that determines the law by which his estate will be distributed. see the cases of mgbodu v mgbodu17and nebuwa v nebuwa,18 on how to prove a statutory marriage, in the case of anyaegbunam v anyaegbunam19the supreme court said that the production of the original or certified copy of a certificate of marriage either under section 32 of the marriage act, or under section 80 of the matrimonial causes decree 1970 is not the only way to prove a marriage: thus, where there is evidence of a ceremony of marriage having been gone through followed by the cohabitation of the parties, everything necessary for the validity of the marriage will be presumed in the absence of decisive evidence to the contrary.20 by virtue of section 35 of the marriage act, every customary marriage conducted with another person during the pendency of a statutory marriage is invalid and void ab initio as was held in the case of mgbodu v mgbodu.21 intestate succession under customary law for every rule of customary law to be valid, it must satisfy three tests of validity; a) the repugnancy test, b) incompatibility test, c) public policy test. repugnancy test: the repugnancy test seeks to uphold natural justice, equity and good conscience.22section 18(3) of the evidence act23 provides as follows: ‘in any judicial proceeding where any custom is relied upon, it shall not be enforced as law if it is contrary to public policy, or is not in accordance with natural justice, equity and good conscience.’ see the cases of eleko v government of nigeria.24and ojiogu v ojiogu. incompatibility test: for a rule of customary law to be valid and enforceable, it must not be incompatible, either directly or by implication with any law for the time being in force.25 the validity of customary law is subject to the constitution of nigeria.26 the constitution is the supreme law in nigeria27 it is on this basis that every other law gain validity including customary law.28in the case of ukeje v ukeje29 the court held the male primogeniture rule to be incompatible with section 42 of the constitution. public policy test: public policy means decisions that will ensure the security and welfare of the individual and the state in general.30 this has the ability to change overtime for instance a shift in public policy occurred in the context of inheritance of property by illegitimate children.31 any custom contrary to public will not be enforced. the repugnancy, incompatibility and public policy tests are measures taken to protect the sanctity and sanity of customary law in nigeria,32 which has been predominantly useful in cases of customary law of succession in nigeria.33 it is no gain saying the fact that nigerian customary law of intestate succession generally discriminates against women34 therefore these tests are of great necessity. 17(2018) lpelr-43770(ca). 18 (2018) lpelr-45097(ca). 19(1973)1 a11 nlr (part 1) p. 385 at 386. 20 obiekwe v obiekwe (1963) 7 enlr 196. 21(2018) lpelr-43770(ca). 22o aladetola, ‘analysis of the nigerian supreme court’s constitutional duty regarding women’s inheritance right under customary law,’ a thesis submitted in partial fulfillment for the award of a masters degree submitted to the faculty of law university of cape town, 2017, 18. 23 evidence act 2011. 24 (1980) 3 nilr 14; okpalobi and okaphor. (n 8)86. 25ibid. 26 section 1(3) constitution of the federal republic of nigeria (third alteration) act, 2010 (act no 3). 27 ibid section 1(1). 28 ibid section 315. 29 ukeje v ukeje(n 2) 30okpalaobi and okaphor (n 8)86. 31 1999 constitution (n 27) section 42(2) 32aladetola (n 23)20. 33 see the cases of mojekwu v mojekwu (supra) ukeje v ukeje (supra); anekwe v nweke (supra). 34i p, enemo, ‘customary law of succession and the rights of women in nigeria: need for reform; a paper presented at the international conference on philosophy and the law in african on the 12th of june 2004. p 6. african customary and religious law review (acarelar) 4 (2023) 90 intestate succession under igbo customary law customary law of succession among the igbos is generally primogeniture; this means succession by the eldest son, known as okpala, diokpala or diokpa.35 the real property of the deceased vests on his eldest son and it is his duty to manage and administer such a property for the benefit of himself and his brothers and half-brothers.36 the eldest son inherits as of right, the late father’s dwelling house, obi.37in ugboma v ibeneme,38 it was held that in accordance with the general igbo custom women are not entitled to inherit land from their father.39 under igbo customary law, daughters and wives do not have that right to succeed to their deceased father’s or husband’s estate. a female cannot be the family head no matter her seniority in the family. in some igbo customs, where an intestate dies without sons, brothers, or father, his estate is inherited by his eldest nearest paternal male relation, this practice is known as iriekpe custom, and such relation is known as ‘oriekpe.’40 it is certain that by igbo customary law, a widow is entitled to live as a member of the family in her late husband’s compound until she re-marries or dies, see nezianya v okagbue.41 in order to protect this right the husband’s heir has no power to dispose of the matrimonial home which is occupied by the widow. however, her right in this respect is subject to good conduct. the customary laws are silent as to what the tests to determining her good conduct are, and who will be the best judge of same. this is subject to abuse and tends towards putting the widow at the mercy of her deceased husband family member. the court in nzekwu v nzekwu,42maintained the same position after 20 years has passed,43 holding that the interest of the widow in the house is possessory and not proprietary so that she cannot dispose of it. a widow of a deceased person has no right to succeed to his estate. under the general customary law of the igbos, the only situation where a daughter can inherit is where she chooses to remain unmarried in her father’s house with a view to raising children in her father’s home44and in his name.45 this is known as ‘nrachi’ or ‘idegbe’ institution. there is no gainsaying that the law of succession under the igbo customary law is largely discriminatory against women. intestate succession under yoruba customary law according to yoruba native law and custom, if an individual dies intestate, his children both male and female succeed to the estate as a single entity to the exclusion of other relations. the eldest son known as dawodu inherits the responsibility for the management of the estate. in sule v ajisegiri46 it was held that the partition must be equally between those entitled regardless of sex. thus, the defendant’s claim that being a male he was entitled to a larger share was rejected. the eldest son however wields the power to manage the estate of the deceased person. he holds the property in trust for the other members of the family. the institution of the title of a dawodu which is exclusive to the eldest male child is a form of inheritance which creates discrimination especially where the first child is a female. explaining the rational for maintaining male trusteeship or primogeniture the court in the case of lewis v bankole47 held that female children get married and move to their husband’s family thus will not be able to handle the affairs of the estate effectively. this decision of the learned judge is debatable and subject to criticism, in that being married does not affect the right of women to manage the property of the family. in the case of lopez v lopez 48combe j. held that originally women were not equal to men on the issue of inheritance, however, women now have equal rights to inherit like male children. in salami v salami49 the court held that the plaintiff’s right to inherit her father’s estate along with her two brothers was 35j, ezeilo, ‘laws and practices relating to women’s inheritance rights in nigeria: an overview’ (2000) occasional working paper series: women’s aid collective. p 142; b a oni, ‘discriminatory property inheritance rights under the yoruba and igbo customary law in nigeria. the need for reform’ (2014) 19(2) 10sr journal of humanities and social science (10srjhss) 34; enemo op.cit, p. 10. 36ibid. 37 nwafia v ubah (1966)1 all nlr 8; ezeokafor v ubah (1975)1 uilr 162. 38 (1967) f nlr 25. 39ejiamaike v ejiamaike (1972) 2 e.c. sn.l. r at 11. 40udensi v mogbo (1976) 7 sc 1. 41 (1963) 1 all nlr 352. 42(1989) 2 nwlr (pt. 104) 373. 43ezeilo (n 36)143. 44ibid; enemo (35)10. 45 oni (n 36) 35. 46 13 n.l.r. 146. 47 (1909) 1 nlr 82. 48 (1924) 5 nlr 50. 49 (1924) 5 nlr 43. okpalaobi & akorah: discriminatory inheritance practices and the rights of women in nigeria 91 not diminished by the fact that she is a girl. in richardo v abal 50 not only did the court accept the proposition that a female child has inheritance rights, but it went further to hold that when a man dies leaving two house and two children, male and female, the female if older has the first choice as to which house she wants if the property is eventually partitioned. unfortunately, in the yoruba customary law of succession, a wife has no right to succeed to her deceased husband’s estate, and where there are no children of the marriage, the property of the estate will devolve on the members of the deceased’s family unless property given to a wife is proved to be an outright gift it will pass on the husband’s death to the husband’s family, she has no right of inheritance whatsoever. the wife under yoruba native law and custom is said to form a part of the estate of her husband, see suberu v sunmonu51. the reason for depriving a wife of succession rights in the deceased husband’s estate according to beckley, j. in the case of sungunro-davies v sungunro-davies,52 was because devolution of property under native law and custom follows the blood, and a widow not being related by blood has no claim. this of course is discriminatory against women. islamic law of succession universality of islamic precepts applies in nigeria.53 this was restated by the court in the case of aikamawa v bello and anor.,54 thus: ‘islamic law is not same as customary law as it does not belong to any particular tribe. it is a complete system of universal law, more certain and permanent and more universal than the english common law’.55enemo56 stated that the islamic laws are regards as part of customary law in areas where they apply. mohammed57 is of the opinion that islam is one of the early comers in the restoration of the right and dignity of women. he referred to the qur’an, chapter 3 verse 195 of same, where the equality of women to men was highlighted. chapter 3 verse 195 of the qur’an provides thus: ‘their lord responded to thee ‘i never fail to reward any worker among you for any work you do, be you male or female, you are equal to one another.’58 the right of succession under islamic laws is set out in the qur’an.59 if a moslem dies intestate, his estate must be shared among his heirs entitled to share his estate under moslem law. his male children must have equal shares and the female children half-share each. these shares are contained in the qur’an, particularly chapter 4 verse 11-12 and 176, again, this unequal distribution is discriminatory against women. 4. legal framework for the inheritance rights of women constitution of the federal republic of nigeria 1999 (as amended) section 42 of the constitution prohibits discrimination on grounds of sex and affirms a legally enforceable right to equality of all persons. it provides as follows: 42. (1) a citizen of nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person: (a) be subjected either expressly by, or in the practical application of, any law in force in nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of nigeria of other communities, ethnic groups, places of origin, sex, religious or political opinions are not made subject; or (b) be accorded either expressly by, or in the practical application of, any law in force in nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of nigeria of other communities, ethnic groups, places of origin, sex, religious or political opinions. (2) no citizen of nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth. 50 (1926) 7 nlr 58. 51 (1957) 2 fsc 31. see also akinnubi v akinnubi (1997) 2 nwlr (pt. 486), p. 144 at 156. 52 (1929) 2 nlr, 79. 53a mohammed, a paper presented at the nigerian bar association annual general conference 2019, section on family and children’s right, on the 27th day of august, 2019. p.1. 54 (1998) lpelr – 424 (sc). 55 per wali, jsc. p.15, paras a-b. 56enemo, (n 35) 9. 57 mohammed (n 54)1. 58 emphasis supplied. 59nwogugu (n 12) 413. african customary and religious law review (acarelar) 4 (2023) 92 it is therefore an infringement on her fundamental right to freedom from discrimination when a woman is deprived of a share of her father’s property or her husband’s property only because she is a woman. violence against persons (prohibition) act, 201560 section 15 of vap act, 2015 provides that a person who subjects a widow to harmful traditional practices commits an offence. such person on conviction is liable to imprisonment for a maximum period of 2 years or a fine not exceeding n500.000.00 or both.61 a person who attempts the offence, a person who incites, aids, abets or counsels another to commit the offence and a person who receives another who had committed the offence are all liable on conviction to imprisonment or fine or both. section 20 of the vap act provides for a penalty against a person who carries harmful traditional practices against another. the vap act is a geared to, amongst other things, protect the inheritance right of women. anambra state malpractices against widows and widowers (prohibition) law no. 2005 this law prohibits and penalises the maltreatment of widows and widowers in order to uphold and preserve the dignity of the human person as entrenched in the constitution. section 3 of the law provides that the fundamental human rights as enshrined in the constitution are inalienable and accrue to every widow or widower. section 4 (1) protects the property interests of widows (and widowers). this law also protects women in anambra state from discriminatory inheritance practices. prohibition of curtailment of women’s right to share in family property law no. 2 of 2022 of rivers state this law abolishes the prevalent customary practices in rivers state that female children are not to share in family property. women have been called to use the protection provided by the law to stand up for their rights and challenge any discrimination against them court.62in signing the bill into law, i.e., the ‘rivers state prohibition of the curtailment of women’s right to share in family property law no. 2 of 2022,’ governor nyesom wike said he couldn’t comprehend why it is considered a taboo in many parts of the state for female children to share in their family inheritance. four sisters on 29th march, 2023 in port harcourt became the first beneficiaries of the rivers state prohibition of the curtailment of women’s rights to share in family property law no. 2 of 2022 as a port harcourt high court ruled in their favour in a case between them and their three brothers. the sisters approached the high court seeking the interpretation of some sections of the 1999 constitution as amended, as well as sections of the rivers state prohibition of the curtailment of women’s right to share in family property law no 2 of 2022. in the judgment delivered on wednesday, 29th march 2023 justice chukwu asked the defendants to pay the four women n72-million as damages and also publish an apology in a national newspaper and two local tabloids, and then proceed to reshare the estate to accommodate them adequately.63 african charter on human and people’s rights (ratification enforcement) act64 on 17 march 1983, nigeria’s national assembly passed the african charter on human and people’s rights (ratification enforcement) act to enable effect to be given in the federal republic of nigeria to the african charter on human and people’s rights made in banjul on the 19th day of january 1981.65 although the courts 60 vap act, 2015. 61 in section 17 of the vap. law of anambra state, 2017, the term of imprisonment is a maximum period of 7 years for a person who subjects a widow to harmful traditional practices. 62h b ibunge, ‘wike promotes women participation in family inheritance’ thisdaylive (portharcourt, 16 september 2022) <https://www.thisdaylive.com/index.php/2022/09/16/wike-promotes-women-participation-in-family-inheritance>accessed on 8 february 2023. 63a okonkwo, ‘how abel sisters won family inheritance case’ tribuneonline (portharcourt, 14 april 2023) <https://tribuneonlineng.com/how-abel-sisters-won-family-inheritance-case/> accessed 5 september 2023. 64 cap a9, lfn 2004. 65preamble, african charter (ratification and enforcement) act; v o ayeni, ‘the impact of the african charter and the maputo protocol in nigeria’ in businessprint, pretoria (ed), the impact of african charter and the maputo protocol in selected african states (pretoria law press (pulp) 2016),186. https://www.thisdaylive.com/index.php/2022/09/16/wike-promotes-women-participation-in-family-inheritance https://tribuneonlineng.com/author/amaechi-okonkwo/ https://tribuneonlineng.com/how-abel-sisters-won-family-inheritance-case/ okpalaobi & akorah: discriminatory inheritance practices and the rights of women in nigeria 93 have held that the african charter is not above the constitution,66 they have affirmed its superiority67 over other laws.68article18 (3) provides that ‘the state shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions.’ by virtue of article 18(3) of the africa charter which has been domesticated as article 18(3) of the african charter (ratification and enforcement) act, nigeria has an obligation to ensure the elimination of discrimination and protection of women as stipulated in international declarations and conventions, some authors are of the view that article 18(3) makes cedaw for instance applicable to all states parties to the african charter irrespective of their ratification status under cedaw. it is further submitted that even the maputo protocol could be considered part of the african charter under this provision. this creative interpretation may be resorted so where a litigant in nigeria intends to rely on an undomesticated provision of the maputo protocol.69 african charter therefore secures women from discrimination in terms of inheritance. convention on the elimination of all forms of discrimination against women (cedaw) 1979 in article 5(a) of cedaw, state parties commit themselves to take all appropriate measures to: modify the social and cultural patterns of conducts of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women. article 13 provides that: ‘states parties shall take all appropriate measures to eliminate discrimination against women in other areas of economic and social life in order to ensure, on a basis of equality of men and women, the same rights, in particular: (a) the right to family benefits. article 15 of cedaw provides that: 1. states parties shall accord to women equality with men before the law. 2. states parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity. in particular, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals. cedaw touches squarely on the issue of women’s right. this international convention though not yet domesticated, can be cited as a law providing against discrimination of women in the issue of inheritance. see 18(3) of the africa charter 5. supreme court pronouncements against discriminatory inheritance practices in nigeria mojekwu v mojekwu70 the court held that the oli ekpe custom was repugnant to natural justice, equity and good conscience and consequently refused to enforce such custom. furthermore, the court declared the custom invalid for infringing on a fundamental human right against discrimination guaranteed by the constitution.71 it emphasized that this custom conflicts with the provisions of the right to own property as guaranteed by the 1999 constitution. it also declared the customary law invalid for infringing on the provision of the convention on the elimination of all forms of discrimination against women (cedaw).72 in mojekwu v iwuchukwu73 mojekwu appealed to the supreme court which unanimously dismissed the appeal.74 66a atsenuwa ‘national legislations, policies and practices congruent and incompatible with the provisions of the convention on elimination of all forms of discrimination (cedaw) and the protocol to the african charter on human and people’s rights on the rights of women in africa,’ in a m imam (ed), adopting women’s human rights legislation in nigeria: a synthesis analysis & report (infovision limited, 2010), 102. 67n moodie, ‘denial of inheritance rights for women under indigenous law: a violation of international human rights norms,’ a thesis submitted in part fulfilment of the requirements for the degree of master of laws at the university of south africa. december 2000, 26. 68abacha v fewehinmi (2000)6 nwlr (pt.660)228. 69ayeni (n 75)188. 70mojekwu v mojekwu (n 2). 71 1999 constitution (n 27) section 42 72aladetola (n 23)34. 73 (2004) 18 nscq, p.84. the widow had died and was substituted by her step daughter. 74enemo (n 35)15. african customary and religious law review (acarelar) 4 (2023) 94 ukeje v ukeje75 in the case of mrs. lois chituru ukeje and anor v miss gladys ada ukeje the supreme court affirmed the decisions of both high court and appeal court and ruled that the said igbo native law and custom that disentitles female from sharing in their late father’s property is discriminatory and is void as it conflicts with section 42(1) and (2) of the constitution.76 anekwe v nweke77 in anyibor anekwe and anor v mrs. maria nweke (2014)78the supreme court per. ogunbiyi jsc, held that for a widow of a man to be thrown out of her matrimonial home, where she had lived all her life with her late husband and children, by her late husband’s brothers on the ground that she had no male child, is indeed very barbaric, worrying and flesh. it is repugnant to natural justices, equity and good conscience. 6. conclusion and recommendations in africa, there is a general discrimination against wives and daughters in terms of inheriting their family property. this is especially where the deceased husband or father died intestate, that is, he made no valid will as at his death. we commend the several laws enacted to protect and preserve the succession rights of women, we must however state that where the head of a family distributes his property equitably in a valid will, the females are to a greater extent saved from the application of some discriminatory laws, especially customary law. section 42 of the 1999 constitution, though provides against discrimination of every form, has not been potent enough to solely curb or even reduce the incessant discriminatory practices hurled on women in recent times. the long-aged issue of male dominance continues to rear its ugly head. we must however continue the fight for justice and equity for the female folks. the following measures may be relevant: i. the making of valid will should be encouraged and advocated for. if the deceased had left behind a will some victims,’ predicament could have been avoided. a decease through a valid will can share his properties even to his wife. in so doing, some discriminatory succession practices against women can be avoided. ii. statutory marriages should be conducted in addition to the customary marriage ceremonies because the laws offer better protection to the wife and children of a statutory marriage, as they take priority. iii. there is need to domesticate some international law relating to women like the convention on the elimination of all forms of discrimination against women (cedaw), protocol to africa charter on women’s right and other international and regional instrument providing for the rights of women. iv. the role of judicial activism is continuously needed and encouraged so as to keep churning out more judgements against discriminatory customary laws on succession no matter whose ox is gored. judges should be active in dispensing justice and challenging the status quo. v. women who are victims should be assisted to seek redress by non-governmental and government organizations, financially and otherwise. vi. the challenge of long and expensive litigation should be tackled. for instance, the case of ukeje v ukeje and anekwe v nweke lasted over 30years before the supreme court judgments. vii. there should be consistent advocacy and enlightenment on the various laws protecting women from discriminatory customary laws through radio jingles, t v shows, fliers and billboards, seminars and trainings, open air advocacy at market places, in church, mosques, school, ‘august meetings’. viii. formal education for girl children should be encouraged and child bride discouraged, so the women will be enlightened as early as possible and equip themselves, mentally, physically and financially to contend any form of discrimination against them. 75 (2014)11 nwlr (pt. 1418)384. 76 per bode rhodes – vivour jsc pp 33 – 34. 77 2014) 9 nwlr (pt 1412) 393.sc; (2014) 4 s.c. (pt. iii) 65. 78(2014) 9 nwlr (pt 1412) 393.sc; (2014) 4 s.c. (pt. iii) 65. acarelar 2 (2021) page | 19 divorce and maintenance under islamic marriages in nigeria: the need to safeguard the rights of women and children* abstract divorce is severing the legal bond between a husband and wife and this can occur regardless of the kind of marriage the parties undertake. under islamic marriage a man may divorce his wife of fifty years or more by merely pronouncing the talaq. a wife does not enjoy a concomitant right although under some circumstances she may validly divorce her husband by other more stringent means. what makes the plight of a divorced woman bad is the fact that she is not entitled to maintenance upon divorce of her husband unless she is pregnant for him or just put to bed. the children of an islamic marriage are in a better place than their mothers as they are entitled to be taken care of until the boy hits puberty and the girl marries. the law does not provide any succour to the islamic wife when there is a divorce therefore this work aims at elevating the wife of an islamic marriage to the same pedestal as those of a woman married under the act. the doctrinal methodology was adopted in the research. keywords: divorce, maintenance, islamic marriages, rights of women and children, nigeria 1. introduction dissolution of marriage and maintenance are two rights that should necessarily accrue to married people. although people get married believing their marriages would endure the test of time but this does not happen in some cases as some marriages end in divorce. where parties are unable to live in matrimonial harmony to the extent that either party or both party feels the need to severe the legal bond holding them together as husband and wife they would usually seek a divorce. it is only fair that when there is a divorce, parties are placed in the same financial position they were during the pendency of the marriage and this is the reason why maintenance is very important. an order for maintenance should necessarily follow an order granting dissolution of marriage in deserving cases. children should not be left out as they should also be entitled to maintenance upon the divorce of their parents. 2. dissolution of marriage under islamic law1 islamic law recognizes dissolution of marriage. under islamic law the process of divorce is one that is unfairly prejudicial to women and children and it is important to safeguard their rights to that extent. there are no specifically laid down grounds for divorce under islamic law as it is under the matrimonial causes act2; although it is said that among the things which have been permitted divorce is the worst and it is evil3. the basis of divorce under islamic law is not fault finding, but that the parties are unable to continue to live together. therefore a husband may validly divorce his wife even where she has done no wrong to him. a husband or a wife is competent to initiate divorce proceedings but the procedure will to a large extent determine who can access it. talaq mode of dissolution of marriage this is one of the ways of effecting a divorce. this procedure is only open to the husband. ‘talaq is arabic and it simply means to untie or to free. all the husband is required to do, and does not need to give reasons or justify his action, is just to pronounce, ‘i divorce you’. usually a husband has the prerogative to divorce his wife three times. therefore he may pronounce, ‘i divorce you’ once and subsequently settle with his wife and take her in again. this he can do three times. alternatively he can pronounce, ‘i divorce you’ three times at once and that determines the marriage in that case he cannot remarry the said wife unless she marries someone else and gets divorced from that other person.4 it should be noted however that is not mandatory that the words used must be ‘i divorce you’ islamic *by sylvia chika ifemeje, phd, professor and dean, faculty of law, nnamdi azikiwe university, awka, anambra state, nigeria. phone: 08135726962 email: sc.ifemeje@unizik.edu.ng, *p.o. itsueli, phd candidate, faculty of law, nnamdi azikiwe university, awka, anambra state, nigeria.; lecturer, delta state university, department of public law, faculty of law, oleh campus, delta state, nigeria. 1lawal mohammed banie hamza pate, journal of law, policy and globalisation, vol.42, 2015, <www.iiste.org>><pg>article>download> accessed 20/3/17 2 section 15 3 quran chapter 24 4lawal mohammed, op.cit. mailto:sc.ifemeje@unizik.edu.ng ifemeje & itsueli: divorce and maintenance under islamic marriages in nigeria: the need to safeguard the rights of women and children page | 20 scholar ibn abdul-wahhab5 also asserts that other phrases like, ‘you are divorced,’ you are clear’ ‘you are irrevocable’ you are cut off’, ‘you are concluded’, ‘you are a free woman’, ‘you are forbidden’, would also suffice. a wife does not have a corresponding right to divorce her husband in the same vein and this is a clear demonstration of inequality in marriage. it is worse that islamic law does not consider the wife to be entitled to explanation before her husband can pronounce the talaq. for a husband to validly exercise his right to ‘talaq’ he must have capacity. that is to say he must be of sound mind and must have attained puberty. a ‘talaq’ pronounced by a minor or a man of unsound mind is invalid and ineffective. a third party, even the guardian of a husband who is a minor cannot pronounce the ‘talaq’ on behalf of his son. the guardian of an insane person can pronounce the ‘talaq’ on his behalf, also the qadi or a judge can validly dissolve the marriage in the interest of such a husband. the consent of the husband to pronounce the ‘talaq’ must be freely given and not obtained by force or duress or by other illegal means. the exception to this is the hanaafi law where even though the ‘talaq’ was pronounced due to duress, undue influence, coercion voluntary intoxication, compulsion e.t.c the ‘talaq’ shall still be valid and validly dissolves the marriage. this is not a general position of islamic law, it is more an exception and it is not a good position and does not cohere with sound legal principles and reasoning. it should be noted however that involuntary intoxication makes the pronunciation of a ‘talaq’ void and of no effect whatsoever. a ‘talaq’ apart from being oral may be in writing and it need not be in the presence of witnesses although under the shia islamic law, a ‘talaq’ must be pronounced orally and does not have to be in any particular form as long as it expresses the husband’s intention to divorce his wife. it must also be done in the presence of witnesses. apart from the ‘talaq’ another mode of dissolution of marriage is the ‘ila.6 here the husband takes an oath not to have sexual intercourse with his wife for four months. after the expiration of the fourth month the marriage is irrevocably dissolved. under the shia school after the expiration of four months the wife may apply to court for judicial divorce. zihah mode of dissolution of marriage there is also the zihar7mode of dissolution of marriage in this case the husband simply likens his wife to his mother or sister and stops cohabiting with her for a period of four months. after the expiration of four months the wife may apply to court for dissolution of marriage or for restitution of conjugal rights. however, in the event that the husband has a change of heart and wants to resume cohabitation with his wife he must fast for two months or provide food for sixty people or free a slave. according to shi'a law these must be done in the presence of witnesses. wife’s right to apply for dissolution of marriage it should be noted that under islamic law the husband and wife can divorce by mutual consent. a wife may petition the qadi for dissolution of her marriage on the grounds that her husband has not had sexual intercourse with her for at least three months or that he does not provide necessaries such as food and shelter for her this is known as kittul'l. she must however establish that she is not pregnant at the time she seeks a divorce. another instance where a wife has the power of divorce over her husband is the talaa-it-tafweed8. in this case the husband delegates his power to pronounce a divorce to the wife. she is to exercise this power contingent on the happening of certain events. for example she may exercise this power where the husband marries another wife or fails to provide for her, but these are usually well stated and agreed upon by the parties. it should be noted however that where the contingent occurs and the wife does not exercise her powers of divorce the marriage remains valid. another circumstance that may warrant a wife exercising a right of divorce from her husband is known a li'an9. this is where the husband levels false allegations of adultery against his wife and such allegations are of a serious nature. it should be noted that where it is just an insult by the husband against his wife where they are quarrelling, it cannot be used by the wife to terminate the marriage. from the foregoing, it is clear that the wife of an islamic marriage has less power of divorce over her husband 5 ibid 6 ibid 7 ibid 8 ibid 9ibid acarelar 2 (2021) page | 21 3. maintenance of a divorced wife and her children under islamic law the muslim or sharia law provides for maintenance. its provisions are highly deleterious to the rights of women upon divorce. children are in a better position than their mothers but even at that they still do not get the best safeguards to their rights. muslim law does not out rightly say exactly what the definition of maintenance is as regards matrimonial causes, but it would seem that the definition of maintenance as provided for under hindu law is same as the islamic perception of maintenance for a divorced wife and her children10, it defines maintenance thus; ‘in all cases, provisions for food, clothing, residence, education and medical attendance and treatment; in the cases of an unmarried daughter, also the reasonable expenses of, and incident to her marriage’11. under muslim law, women are considered weak as compared to men. it is believed that they are generally unable to maintain themselves, therefore the responsibility of maintaining the wife and children falls on the husband. it does not matter that there is evidence to show that the wife can maintain herself12. maintenance is known as ‘nafqah’ which means what a man spends on his family. nafqah basically includes food, clothing, and lodging. maintenance under islamic or sharia law can be for the benefit of the wife, children, parents and grandparents. in some cases other relatives like dependent brothers and sisters may benefit. one major difference in maintenance to wife and maintenance to children or other persons entitled is the fact that maintenance to wife does not depend on whether she can maintain herself or not, but where it is deemed that a child by any means has enough resources to maintain himself, such a child shall not be entitled to maintenance under muslim law.13 it should be noted however, that this provision to maintain is not applicable to a divorced wife14.the point of interest here however, is maintenance to wife and children after a divorce. divorced wife’s right to maintenance under muslim law, the code of criminal procedure, 1973,section 125; and the muslim women (protection of rights on divorce) act 1986.15 under muslim law the rights of the wife to get maintenance during the marriage is absolute but after the dissolution of marriage, her rights are abridged. there are basically three laws that may be applicable to a divorced wife with respect to maintenance under islamic law; the personal islamic law of the parties, the code of criminal procedure (crpc)16and the muslim women (protection of rights on divorce) act, 198617; with the muslim women (protection of rights on divorce) act being the extant statutory provision on the subject. the quran governs the application of the personal law of the parties where they are bound by islamic law and submit to it. it provides for maintenance of a divorced wife in the following terms, ‘for the divorced women let there be a provision in kindness; this is an obligation for those who are mindful of god’18. the divorced wife’s right to maintenance is limited to the ‘iddat’ period. the ‘iddah’ or ‘iddat’ period ‘iddat’ which synonym is ‘iddah’ is a period of chastity which a muslim woman is bound to observe after the dissolution of her marriage by the death of her husband or by divorce, before she can lawfully marry again. this is a period of abstinence imposed on the woman on the termination of her marriage in the interest of certainty of paternity when there is a divorce or death.19 the abstinence is imposed on her to ascertain whether she is pregnant by the husband, so as to avoid confusion of the parentage. it is only after the iddat period she can validly enter into a new marriage. the primary object of iddat is to 10anusha vijayvargiya, ‘maintenance of women and children under muslim law’(21 july,2018), retrieved from <https://www.legalbites.in/maintenance-wife-children-muslim-law/> accessed 8/10/2018 11baillie’s digest of mohammedan law, 2nd edition, page 442 12 ibid 13 ibid 14ishad sayed, maintenance of divorced woman under muslim personal law’ retrieved from <http://www.shareyouressays.com/knowledge/maintenance-of-divorced-woman-under-muslim-personal-law/117500> 15anusha vijayvargiya, ‘maintenance of women and children under muslim law’(nd), retrieved from <https://www.legalbites.in/maintenance-wife-children-muslim-law/> accessed 8/10/2018 16 this is an indian enactment made in 1973 but which came into force in 1974 it is applicable to all of india except jammu and kashmir as provided in s.1(2)crpc 17 this is also an indian enactment which has jurisdiction and is applicable to all of india except jammu and kashmir 18 ayah al-baqarah(the cow)2:241 19 aanshi bhatnagar,’what do you mean by iddat period’(nd) retrieved from <http://www.shareyouressays.com/knowledge/what-do-you-mean-by-iddat-period/117454>, accessed 09/10/2017 https://www.legalbites.in/maintenance-wife-children-muslim-law/ https://www.legalbites.in/maintenance-wife-children-muslim-law/ http://www.shareyouressays.com/knowledge/what-do-you-mean-by-iddat-period/117454 ifemeje & itsueli: divorce and maintenance under islamic marriages in nigeria: the need to safeguard the rights of women and children page | 22 impose a restraint on the marriage of the wife for a certain time. the iddat maybe be imposed on the woman by the death of her husband or by divorce; both with different incidences. iddat of death: iddat of death lasts: (a) in the case of a woman who is pregnant at that time, for four months and ten days, or until delivery, whichever period is longer; and (b) in the other cases, for four months and ten days. the iddat of death commences from the date of the husband’s death. if the information of the husband’s death does not reach the wife until after the expiration of the period of iddat, she is not bound to observe iddat. if the marriage is dissolved by death, the wife is bound to observe the period of iddat, whether the marriage was consummated or not. it should be noted that the ‘iddat for death is four months and ten days within which period the wife is entitled to maintenance from the heirs of her deceased husband.20 iddat of divorce: iddat of divorce lasts for three menstrual periods. if the divorced wife is not subject to menstruation for any reason other than gestation, the period of iddat lasts for three lunar months. if she is pregnant at the time, the iddat lasts until delivery, irrespective of whether the period is shorter or longer than three months. where a husband pronounces a talaq in the absence of wife, she is required to observe the iddat from the date on which she gets the notice of her divorce. accordingly, where divorce is pronounced in her absence, the wife is entitled to be maintained from the date on which she came to know of her divorce21.thus, where a husband served a notice of divorce on his wife, the wife was entitled to maintenance from the date on which she received the notice, although the notice mentioned an earlier date as the date of pronouncement of talaq. in mohommed ali v. fareedunnissa begam22, the marriage was contracted in 1950, and a son was born to the couple; thereafter, the husband neglected the wife and refused to maintain her. the trial court passed a decree in her favour. the wife was informed by written notices from the husband that she had been divorced by him on the night of their wedding. the first notice was served on 12.5.1960. the husband’s plea was that as the wife had been divorced on the very first night, he was under no obligation to maintain her. it was held by the court that when a talaq is pronounced through notice, the wife is required to observe ‘iddat of divorce’ from the date on which the notice is served on her. the wife was therefore, entitled to maintenance during the period of iddat which began from the date of the first notice i.e. 12.5.1960. the court further observed that the wife was not entitled to maintenance from the earlier date of divorce i.e. 1950. under muslim law a divorced wife cannot claim her past maintenance unless the claim is for the arrears of maintenance under any specific agreement. muslim law does not prescribe any maximum or minimum amount to be given during iddat of the divorced wife. the court is competent to fix any amount keeping in view the socio-economic status of the husband and wife23.in the case of an irregular (fasid) marriage, if the marriage is consummated, the duration of iddat, on divorce, is three months. under the muslim woman (protection of rights on divorce) act, 1986, the ‘iddat’ period, with reference to a divorced woman, is defined to be: (a) three menstrual courses after the divorce, if she is subject to menstruation; (b) three lunar months after her divorce, if she is not subject to menstruation; and (c) if she is enceinte (pregnant) at the time of the divorce, the period between the divorce and the delivery of the child, or the termination of the pregnancy, whichever is earlier? wife’s rights during iddat: 1. the wife is entitled to lodging in the husband’s house during iddat. 2. she is also entitled to maintenance during the iddat of divorce. khilwat-us-sahiha. (valid retirement).in hanafi school of law, a divorced muslim wife is entitled to maintenance during iddat period whereas in shefai law, a divorced muslim wife is not even entitled to maintenance. if after the expiry of iddat period, she has no means to maintain herself her husband has no liability for her and she is left with nothing. the code 20 ishad sayed, ‘different periods of iddat, which a woman is legally required to undergo under muslim law’ (nd) retrieved from < http://www.shareyouressays.com/knowledge/different-periods-of-iddat-which-a-woman-is-legally-required-toundergo-under-muslim-law/117535> accessed 9/10/2018 21 aanshi bhatnagar,’what do you mean by iddat period’(nd) retrieved from <http://www.shareyouressays.com/knowledge/what-do-you-mean-by-iddat-period/117454.> op.cit 22 air 1970 ap 298 23ishad sayed, maintenance of divorced woman under muslim personal law’ retrieved from <http://www.shareyouressays.com/knowledge/maintenance-of-divorced-woman-under-muslim-personal-law/117500.> op.cit http://www.shareyouressays.com/knowledge/different-periods-of-iddat-which-a-woman-is-legally-required-to-undergo-under-muslim-law/117535 http://www.shareyouressays.com/knowledge/different-periods-of-iddat-which-a-woman-is-legally-required-to-undergo-under-muslim-law/117535 http://www.shareyouressays.com/knowledge/what-do-you-mean-by-iddat-period/117454 http://www.shareyouressays.com/knowledge/maintenance-of-divorced-woman-under-muslim-personal-law/117500 acarelar 2 (2021) page | 23 of criminal procedure, 1973 (crpc) section 125, provides for maintenance for a divorced wife of all religion. it states that after divorce if the wife is not able to maintain herself, she is entitled to maintenance from her husband until she gets married. the act applies this provision to muslim women also who are not entitled to maintenance after the period of iddat. this act creates liability against husband to provide maintenance to wife even after the period of iddat. the provisions of this act are in conflict with the provisions of muslim law and a debate was going on as which law should be applied. the issue was adjudicated upon by the supreme court in the landmark judgment of shah bano begum v mohammad ahmed khan24, shah bano begum, a 62 years old lady filed a petition under section 125 of crpc before judicial magistrate of madhya pradesh. the petition stated that her husband has pronounced talaq on her and she has not even remarried and thus she was entitled to maintenance. for which her husband has stated that he had no liability to provide maintenance to her as under muslim law, a divorced wife has no right of maintenance after iddat period. the magistrate, in this case, passed an order stating that the husband is entitled to provide her maintenance of rs.25 per month as per section 125 of crpc. shah banu filed a revision petition against this order in the high court of indore for enhancement of the amount of maintenance. for which indore high court has enhanced the amount of maintenance to 179.20 rs per month. against this order, mohd. ahmed khan appealed to the supreme court, the supreme court rejected the appeal and stated that muslim wife is entitled to maintenance even after the period of iddat if she is not able to maintain herself. the supreme court reasoned that with this judgment the distinction between the muslim personal law and civil procedure code would come to an end, but that did not happen as it deepened the controversy on the issue of iddat as a result of which the legislatures had to make a new law to govern muslim divorce and this gave birth to the enactment of the muslim women (protection of rights on divorce) act 1986. this act has enacted some provisions in support of muslim personal law and has restricted the application of section 125 of crpc regarding the maintenance of muslim wife. the act has stated that the husband is entitled to provide maintenance only during the period of iddat and not beyond that. if the wife is not able to maintain herself after iddat period then, in that case, she can seek maintenance from the waqf board25 or relatives of her or her husband. this act has not mentioned anything clearly and has created various confusions in the judicial system and was considered as vague. the confusion of this act has been solved by the supreme court of india in the case of daniel latifi v union of india26, where the court laid the issues to rest and provided that by virtue of s.3 of the act, a muslim husband is entitled to provide fair and reasonable maintenance to his wife and has to make proper arrangement for her maintenance after the divorce but that a muslim husband’s liability under this act is limited to iddat period. he has to make arrangement within the period of iddat for his wife’s maintenance. further, the court held that a divorced muslim woman is entitled to maintenance under section 4 of this act from her relatives who are entitled to her property after her death and if her relatives are not able to maintain her then, in that case, a waqf board has been created by this act who will take care of the maintenance of such women. the magistrate can direct the waqf board to pay maintenance to them. therefore it is obvious that the rights of women are still not secured under this act as the husband is still not bound to pay maintenance beyond the iddat period, the only advantage she has is that she may be maintained by her relatives or the waqf board as of right only where she cannot take care of herself. it is an outright derogation of the right of the wife who probably laboured to keep a home with her husband to be foisted upon her own relatives or the waqf board when there is a divorce. another issue that is worthy of note is whether an adulterous wife is entitled to maintenance during the iddat period. it is clear from judicial authority available that an adulterous woman is also entitled to maintenance during the iddat period27. in m. alaviv v t.v. safia28, the question before the court was whether a divorced woman living in adultery was entitled to maintenance under section 3 of the act. the court held that she is entitled to 24air 1985 sc 945 25literal the word waqf means ‘detention’. waqf means detention of a property so that its produce or income may always be available for religious or charitable purposes. the board was established under the waqf board wakf act 1954. the wakf act 1954 defines wakf as, “wakf means the permanent dedication by a person professing the islam, of any movable or immovable property for any purpose recognized by muslim law as religious, pious, or charitable.”madhubala solanki,‘concept of waqf under muslim law’ (october 8, 2017) retrieved from <https://www.lawctopus.com/academike/concept-waqf-muslim-law/> 26air, 2001, sc, 958 27sanjyot c. ‘whether a divorced woman living in adultery under islamic law was entitled to maintenance?’(nd)retrieved from< http://www.shareyouressays.com/knowledge/whether-a-divorced-woman-living-in-adultery-was-entitled-tomaintenance-under-muslim-law/117614>, accessed 8/10/2018 28 air 1993 ker 21 https://www.lawctopus.com/academike/2017/10/08/ http://www.shareyouressays.com/knowledge/whether-a-divorced-woman-living-in-adultery-was-entitled-to-maintenance-under-muslim-law/117614 http://www.shareyouressays.com/knowledge/whether-a-divorced-woman-living-in-adultery-was-entitled-to-maintenance-under-muslim-law/117614 ifemeje & itsueli: divorce and maintenance under islamic marriages in nigeria: the need to safeguard the rights of women and children page | 24 maintenance, the court said that the act nowhere provides that a divorced woman who is living in adultery will not be entitled to provision and maintenance, and one should not read something in the act which is not there. the court added that ‘it is not proper to refuse maintenance to a divorced woman on the ground that it is an unjust burden to maintain a woman leading an adulterous life. moreover, a divorced woman being not a married woman cannot commit adultery’. maintenance of the children children are the responsibility of their parents and they should be taken care of. they are entitled to proper and adequate maintenance from their parents especially their fathers. under muslim law, a man is considered as superior and is responsible for the maintenance of his family. maintenance of the child is his primary responsibility. this is a good security for the rights of a child upon divorce under customary law. father’s obligation to maintain his child a father is under an obligation to maintain his legitimate child until he reaches puberty. under muslim law, the father has to maintain his son only until he attains majority and has to maintain his daughter until she gets married. under certain circumstances however, like where the child suffers from insanity or has other health challenges which incapacitates him a father is bound to maintain that child where he is a son. he is also bound to maintain his widowed or divorced daughter in appropriate cases. a father is not bound to maintain his son or unmarried daughter if they refuse to live with him without any reasonable cause. under muslim law, father is under no obligation to maintain his illegitimate child but an agreement between the parties to maintain his illegitimate child is not invalid. under section 125 of crpc, if the father has sufficient means, he is under obligation to maintain his child whether legitimate or illegitimate. in pavitri v. katheesumma29, it was stated that it is not at the discretion of the court to allow maintenance to an illegitimate child. the court can allow only if asked for it. mother’s obligation to maintain her child mother’s obligation to maintain her child arises when the child is illegitimate and husband has refused to maintain the child. however, under hanafi law, if the father is poor and the mother is rich then, in that case, it is the obligation of the mother to maintain the child. however, she can recover the money when her husband gets into the condition to repay it. under shefai law, even if the father is poor and mother is rich, the mother is still not obliged to maintain her child. in that case, it is the obligation of grandfather to maintain the child30.the provisions for maintenance of children are not a matter of concern as they are provided adequate maintenance under the law but the position of the wife is poor as compared to other laws. though the legislature has enacted an act, it has not created much difference in the condition of the wives. the proper efforts and contribution of both the legislature and the judiciary are required to improve the position of a divorced wife under muslim law. muslim law does not prescribe any maximum or minimum amount to be given during iddat of the divorced wife. the court is competent to fix any amount keeping in view the socio-economic status of the husband and wife31. from the foregoing it is obvious that generally speaking in places that the muslim women (protection of rights on divorce) act 1986 is applicable, it is not the personal islamic law of the parties that is applicable, but this act32. 4. conclusion and recommendations the issues of the rights of a divorced wife to maintenance under islamic law are one that needs urgent intervention. a divorced woman and her children do not get as much as they should get when there is a divorce. in nigeria, it is the personal islamic laws of the parties that will apply since the indian code of criminal procedure and the muslim women (protection of rights on divorce) act does not have jurisdiction. the code of criminal procedure was a watershed in the actualization of the rights of a 29air 1959 ker 319 30anusha vijayvargiya, ‘maintenance of women and children under muslim law’ (nd), retrieved from <https://www.legalbites.in/maintenance-wife-children-muslim-law/ accessed 8/10/2018. op.cit 31 ishad sayed, maintenance of divorced woman under muslim personal law’ retrieved from <http://www.shareyouressays.com/knowledge/maintenance-of-divorced-woman-under-muslim-personal-law/117500>. op.cit 32 ibid. https://www.legalbites.in/maintenance-wife-children-muslim-law/ http://www.shareyouressays.com/knowledge/maintenance-of-divorced-woman-under-muslim-personal-law/117500 acarelar 2 (2021) page | 25 divorced wife under islamic law with the supreme court decision in begum’s case which protected the rights of women and children to the extent that a wife’s rights of maintenance from her husband subsists till she remarries. this represents a much better position for a divorced woman than the application of the party’s personal law and the muslim women (protection of rights on divorce) act. in nigeria, a divorced wife is only entitled to maintenance for three months after her divorce and where she is with child after she puts to bed. this is a very unfortunate position for a woman who has devoted her life to a marriage. divorce is very easy under islamic law, therefore a man might drive his wife to abject poverty with the mere pronouncement of the words of the talaq, divorce her and the woman is left without succour33 the same rules that apply under statute should apply under islamic marriage to place a divorced wife in the same pedestal as her counterpart under the statute, alternatively, the provisions of the code of criminal procedure with regards to maintenance of the divorced wife should be adopted. the position of children under islamic law, though good yet not enviable, once a child hits puberty or attains majority he loses his or her right to maintenance. the age of majority in nigeria is eighteen years, an age at which a child would probably be in a tertiary institution. if he is no more entitled to his father’s maintenance it would work hardship on such a child; therefore, the age at which a child is entitled to maintenance under islamic law should be reviewed upwards to a minimum age of twenty one years as under statute. 33monika sharma, ‘maintenance of divorced wife in muslim law and implication ofs.125 of the crpc’ (february 9 th 2017) retrieved from <https://www.legalbites.in/maintenance-divorced-woman-muslim-law-implication-section-125-cr-pc/>accessed 10/10/2018 https://www.legalbites.in/maintenance-divorced-woman-muslim-law-implication-section-125-cr-p-c/ https://www.legalbites.in/maintenance-divorced-woman-muslim-law-implication-section-125-cr-p-c/ african customary and religious law review (acarelar) 3 (2022) 64 | p a g e an evaluation of the consequences and legal paradigm of child marriage in nigeria* abstract generally, it is apt to state that marriage is said to be between two consenting adults. however, in nigeria, it has been observed that the issues of child marriage is becoming on the increase. this is concerning the fact that study has revealed that in nigeria, particularly northern nigeria has some of the highest rates of early marriage in the world. furthermore, it suffices to state that there are a lot of adverse consequences that goes with child marriage. although, there are international and domestic laws that tend to stipulate the minimum age of marriage. however, despite the said law, there is still increase of child marriage in nigeria. it is in this regard, that this study employs the use of doctrinal study in examining the consequences of child marriage in nigeria. furthermore, the study will also examine the various international and domestic laws as it relates to child marriage in nigeria in ascertaining to what extent they regulate child marriage. the study therefore concludes and recommends that, though there are laws that condemned child marriage in nigeria, however, there is still an increase rate of child marriage in nigeria. in this regard, the government, community and ngo should ensure an appropriate compliance with the laws that condemned child marriage. keywords: legal, child, marriage, nigeria 1. introduction child marriage is a fundamental violation of human rights which begun as a practice throughout history for variety of reasons including poverty, customs, insecurity as well as political and financial reasons1. child marriage refers to two separate meanings practiced in some societies’ affects both boys and girls, but it is more common among girls2. first is the most common practice which is that of a young girl given out in marriage to a man3. the second s child betrothal where both children are betrothed with their parents’ consent for a future marriage, the individuals do not meet till the wedding day which happens when they are considered to be of marriageable age4. in this regard, it suffices to state that in nigeria, child marriage is taken as a trivial issue. children are abused daily and it is being swept under the rug5. some of the reasons why child rights are taken lightly are due to poverty, 1gnorance, inhumane culture and so on6. also, the fact that the female child is seen almost as, dispensable property is one of the main reasons why child marriage is predominant in nigeria7. given the above, it is apt to state that nigeria, particularly northern nigeria, has some of the highest rates of early marriage in the world8. the child rights act of 2003 sets the national legal minimum age of marriage at 18. to *by chi-johnny okongwu, llb (hons) ll.m, bl, mba, phd, fipm, fcids, cfiar, cfiar, fecrm, fipdm, mismn, amnim, fcipfm, associate professor, department of jurisprudence and international law, associate dean faculty of law and former dean, students affairs, chukuwemeka odumegwu ojukwu university, igbariam campus. email: lawleviokongwu@gmail.com tel: +2348034850007; and *simon ejokema imoisi, llb, llm, phd, bl, senior lecturer, department of public and international law, faculty of law , edo state university uzairue, nigeria. email: imoisi.simon@edouniversity.edu.ng. tel.: 08056460834. 1 adebowale sa, fagbamigbe fa, okareh to, lawal go. survival analysis of timing of first marriage among women of reproductive age in nigeria: regional differences. afr j reprod health. 16 no. 4, (2012): 95–107; adedokun o, adeyemi o, dauda c. ‘child marriage and maternal health risks among young mothers in gombi, adamawa state, nigeria: implications for mortality, entitlements and freedoms’ afrcan heal science 16 no. (2016): 986–99. https://doi.org/10.4314/ahs.v16i4.15 2 alayande a, bello-garko b, abubakar z, kagara h, nuhu ia. ‘medical perspective of childhood marriage in nigeria: body of evidence from 2013 nigeria demographic and health survey’ curr womens health rev. 15 no. 3, (2019): 188–95 . https://doi.org/10.2174/1573404814666181026095357; allen aa, adekola po. health implication of child marriage in north-east nigeria. analele universitatii din oradea, seria geografie year xxvii. 2017;7(1):54–61. 3 annabel s. e., mairo b. ‘the experience of married adolescent girls in northern nigeria, population council, nigeria, inc.’ www.popcouncil.org/pdfs/nigeriamarriedadol accessed, 12th january 2022 4 debowale s. a. dynamics of child marriage and marital timing in nigeria: a retrogression or progression? health care women int. 39 no. 9, (2018): 975–93. https://doi.org/10.1080/07399332.2018.1490742. 5 delprato m, akyeampong k. ‘the effect of early marriage timing on women’s and children’s health in sub-saharan africa and southwest asia’ ann glob health. 83 no (2017): 557–67 https://doi.org/10.1016/j.aogh.2017.10.005; fayokun, k.o. ‘legality of child marriage in nigeria and inhibitions against realisation of education rights’ us-china education review b 5 no. 7 (2015): 460-4700 6 menski, w. hindu law: beyond tradition and modernity (delhi: oxford up, 2003) p. 177; nwogugu e.i, family law in nigeria, 3rd edition (lagos: hebn publishers plc, 2014), 38 7 nwokolo, c. ‘counseling against early marriage of the girl-child in anambra state’ edo journal of counseling, 3 no. 1 (2020): 550-570; olukemi a. a, folakemi o. c. ‘culture of silence and wave of sexual violence in nigeria’, aascit journal of education. 1 no. 3 (2015): 31–37 8 aidonojie p. a. & egielewa p., (2020). criminality and the media: perception and legality of the amotekun security agency in nigeria. international journal of comparative law, and legal philosophy, vol. 1 (3), p. 47-72. mailto:lawleviokongwu@gmail.com https://doi.org/10.4314/ahs.v16i4.15 https://doi.org/10.2174/1573404814666181026095357 http://www.popcouncil.org/pdfs/nigeriamarriedadol https://doi.org/10.1080/07399332.2018.1490742 https://doi.org/10.1016/j.aogh.2017.10.005 okongwu & imoisi: an evaluation of the consequences and legal paradigm of child marriage in nigeria 65 | p a g e be effective, however, state assemblies must take necessary measures to implement the act and to date, only 23 of nigeria's 36 states have taken concrete steps to execute the minimum age of marriage9. it suffices to state that, data shows a 9 per cent decline in the prevalence of child marriage since 2003, action is needed to prevent thousands of girls from being married in the coming years. to further complicate matters. nigeria has three different legal systems operating simultaneously: sharia, state and federal governments have control only over marriages that take place within the civil system10. however, despite that there is global condemnation of child marriage; it suffices to state that there is still incidence of child marriage in nigeria. it is concerning the above that this study tends to embark on an evaluation concerning the consequences and relevant legal framework concerning child marriage in nigeria. 2. consequences of child marriage • child marriage is a fundamental violation of human rights. many girls (and a smaller number of boys) are married without their free and full consent. by international conventions. 18 years has been established as the legal age of consent to marriage.11 if the timing of marriage does not change, over 100 million girls will he married children in the next ten years.12 • child marriage is closely associated with no or low levels of schooling for girls. in west and central africa. girls with three or fewer years of schooling are five times more likely than girls with eight or more years of schooling to marry before age 18.13 poverty leads many families to withdraw their daughters from school and arrange marriage tor them at a young age. these girls are denied the proven benefits of education, which include improved health lower fertility and increased economic productivity.14 • child marriage in many instances marks an abrupt transition into sexual relations with an older husband. the younger a bride is, the more likely it is that she enters marriage as a virgin and the larger the age difference between her and her spouse. parents frequently arrange marriages for their daughters without their inputs or consent. in some settings, it appears that the younger a girl is when she get married, the less say she has in the choice of her husband.15 • first births carry special risks for both mother and child. the vast majority of births to adolescent girls are first births that occur within marriage.16 the foremost risk first births carry is prolonged or obstructed labour, which can result in obstetric fistulas in settings where access to care is limited. first births also have elevated risks of pre-eclampsia, malaria, and infant mortality.17 girls who give birth during adolescence require special attention because they are less mature and are simultaneously coping with their own and their baby's physiological, emotional, and economic needs. globally, adolescent mothers tend to be poorer, less educated, and less adequately nourished than older mothers: they also face greater social disadvantage.18 9 paul p, chouhan p. association between child marriage and utilization of maternal health care services in india: evidence from a nationally representative cross-sectional survey. midwifery, 2019:75; toyo n. ‘revisiting equality as a right: the minimum age of marriage clause in the nigerian child rights act 2003’ third world quarterly 27 no. 7 (2006) 1299-1312. 10 center for reproductive law and policy (crlp), ‘women of the world: laws and policies affecting their reproductive lives (anglophone africa)’. new york, 2012: crlp 11 see, among others, the universal declaration of human rights (1948); the convention on the elimination of forms of discrimination against women (1979); the convention on the rights of the child(1989), and african charter on the rights and welfare of the child(1990) 12 population council analysis of united nations country data on marriage,2002 13 demographic and health survey (dhs) data on 20-24-year-olds. analyses conducted in 2003 by barbara mensch for the national academy of sciences; mensch s.b et al. ‘trends in the timing of first marriage among men and women in the developing world’ paper presented at the 68th annual meeting of the population association of america, minneapolis, 1-3 may 2003 14 population council. 1995. ‘accelerating girls' education: a priority for governments,’ fact sheet compiled for the fourth world conference on women. beijing, 4-15 september: herz. b, and sperling b.g. what works in girls’ education: evidence and policies from the developing world (new york: council on foreign relations, 2004) 15 sajeda amin and luciana suran, personal communication, 2004.based on data from amin, sajeda, simeen mahmud, and lopita huq. 2002. ‘baseline survey report on rural adolescents in bangladesh.’ dhaka: ministry of women's affairs, government of bangladesh. see also el-zanaty, fatma, enas m. hussein, gihan a. shawky, et al. 1996. egypt demographic and health survey 1995. calverton, md: national population council (egypt) and macro international, inc. 16 78 per cent of births that occur before age 18 are first births, and 90 per cent of first births that occur before age 18 occur within marriage. dhs data analyzed by monica grant, policy research division, population council. (dhs surveys cover 60 per cent of developing-country populations.) 17 kiely. m, (ed.) reproductive and perinatal epidemiology (florida: crc press, 1991) p. 40; kline. j, et al. conception to birth: epidemiology of prenatal development (new york: oxford university press, 1989), 79-81 18miller. s and lester. f, ‘married young first-time mothers: meeting their special needs,’ paper prepared for the who/unfpa/population council technical consultation on married adolescents, who, geneva, 9-12 december 2003 african customary and religious law review (acarelar) 3 (2022) 66 | p a g e • married girls have distinct and, in some settings, substantial risks of acquiring hiv, child brides typically experience high rates of unprotected sex; have significantly older (and thus more sexually experienced) spouses, and are largely unable to negotiate safer sex.19 in settings with generalized hivaids epidemics, these factors may leave married girls vulnerable to infection. 3. international laws concerning child marriage child marriage is a violation of human rights and is prohibited by several international conventions and other instruments. nigeria has ratified most of the international laws relating to child marriage. a few of them are listed as follows: convention on consent to marriage, minimum age for marriage a registration of marriages 1964 this convention20 is aimed at ensuring that no marriage shall be legally entered into without the full and free consent or bon parties, such consent to be expressed by them in person as prescribed by law. article 2 of the convention21 provides that states parties to the present convention shall specify a minimum age for marriage not less than 15 years’ according to the nonbinding recommendation accompanying this convention. no marriage shall be legally entered into by any person under this age, except where a competent authority has granted a dispensation as to age, for serious reasons in the interests of the intending spouses. article 322 provides that all marriages shall be registered by the competent authority. in this regard, it suffices to state that at the international level, the idea of child marriage aptly condemned. although, it seems the convention stipulate age from 15 and above as an age a persons could be said to be good enough for marriage, but the consent of the said person must be sort for such marriage to be valid. convention on the rights of the child 1989 the convention on the rights of a child23 was adopted and opened for signature on the 20th november 1989. it is the first legally binding international instrument that deals with human rights issues on children. it has been ratified by all countries except the united states and somalia. nigeria ratified this law in march 1991 which provides for access to education and stipulates that every child has the right to free, compulsory, and universal basic education (primary and junior secondary school) and it shall be the duty of the government in nigeria to provide such education with the assistance of parents and guardians of children. several provision of the crc hold relevance to child marriage; however, some of them are analysed as follows; article 3 of the convention24 provides that in all actions concerning children the best interests of the child shall be a primary consideration. article 19 of the convention25 further stipulate that the right to protection from all forms of physical or mental violence, injury or abuse, maltreatment or exploitation, including sexual abuse, while in the care of parents, guardian, or any other person. also, article 24 of the convention26 provides for the right to health, and to access to health services, and to be protected from harmful traditional practices. this provision is perhaps the most relevant clause against child marriage as this practice is part of the hausa-fulani tradition and since this act is harmful to the health of children, crc can recommend the abolition of traditional practices such as child marriage. however, most relevant provision of the conventions of the right of a child is article 28 and 2927 provides for the right to education on the basis of equal opportunity. furthermore, it suffices to opined that article 34 and 36 of the convention28 further stipulate for the right to protection from all forms of sexual exploitation and sexual abuse and the right to protection from all forms of exploitation prejudicial to any aspect of the child’s welfare. african charter on the rights and welfare of the child 1990 the african children's charter29 was signed by nigeria on 13 july 1999 and ratified on 23 july 2001. unlike crc, the african children's charter is a more comprehensive instrument as it deals with a multitude of rights of the child, including marriage. also, the african children's charter sets the age of childhood below 18 years30, without al1owing states to prescribe otherwise. therefore, while the practice of child marriage in northern nigeria 19 s. clark, ‘early marriage and hiv risks in sub-saharan africa,’ studies in family planning vol. 35 no.3, pp. 149-160. 20 convention on consent to marriage, minimum age for marriage a registration of marriages, 1964 21 ibid 22 ibid 23 convention on the rights of the child, 1989 24 ibid 25 ibid 26 ibid 27 ibid 28 ibid 29 the african children's charter was signed by nigeria on 13 july 1999 and ratified on 23 july 2001 30 ibid okongwu & imoisi: an evaluation of the consequences and legal paradigm of child marriage in nigeria 67 | p a g e may not contravene article 1 of crc, it does contravene article 1 of the african children’s charter31. in contrast to crc, the prohibition of child marriage is included in the african children's charter under article 21(2)32, which states: ‘child marriage and the betrothal of girls and boys shall be prohibited and effective action, including legislation, shall be taken to specify the minimum age of marriage be 18 years and make registration of all marriages in an official registry compulsory’. similar to the african children s charter, the protocol to the african charter on human and peoples' rights on the rights of women in africa (african women's protocol),33 which defines women as including girls, stipulates 18 years34 as the minimum age of marriage for women. furthermore, some articles under the african children's charter specifically deal with child marriage. these include, but are not limited to, the protection of children from economic exploitation and sexual abuse. much like article 24(3) of crc, the african children’s charter also contains a provision that urges states to protect children against harmful social and cultural practices.35 under article 21 of the african children's charter36, state parties are urged to: ‘…take all appropriate measures to eliminate harmful social and cultural practices affecting the welfare, dignity, normal growth and development of the child and in particular’ (a) those customs and practices prejudicial to the health or life of the child, and (b) those customs and practices discriminatory to the child on the grounds of sex or other status. this article stamps out the major causes of child marriage, namely, customs and traditional practices. in the nigerian context, the hausafulani undoubtedly violates article 21 of the african children's charter37. despite being a signatory to both the african children’s charter and crc, nigeria saw the need to domesticate both instruments and to promote the protection of children in nigeria. this desire to protect and promote the rights of the nigerian child began with a bill of child rights in 1993. concerning the above, it suffices to also state that apart from the above international legal framework concerning issues of child marriage in nigeria, are other international laws such as the universal declaration of human rights38. though, this convention does not direct provide for issues as it relate to child marriage, however, it provide for the welfare and right of an individual, which also include a child. in this regard, article 16(1) of declaration39 provides that men and women of full age, without any limitation due to race, nationality or religion have the right to marry and to found a family. they are entitled to equal rights as to marriage, during marriage and at its dissolution. subsection (2) provides that marriage shall be entered into only with the free and full consent of the intending spouses. 4. domestic laws concerning child marriage in nigeria it suffices to state that why nigeria is one of the countries who have frown at child marriage by ratifying more international laws that provide for the welfare of a child and condemned child marriage. however, there some laws that also condemned issues as it relate to child marriage in nigeria, some of these laws are address as follows; nigeria constitution there is no provision providing the age of marriage under the constitution but section 29(4)40 impliedly has been confused to be applied to child marriages. this section has to do with renouncing of citizenship. section 29(4) (a) and (b) of the constitution41 provides that full age means the age of eighteen years and above. however, it went further to state that any woman who is married shall be deemed to be of full age. this provision has the effect of ratifying or approving an otherwise illegal marriage where a girl between ten and seventeen years is married either forcefully or with her consent. this lacuna in the constitution has led to certain implications. marriage act the marriage act does not define or lay down any mandatory age of marriage or the lowest limit of the age of marriage. this vacuum is not only important but also fundamental which requires immediate remedial action. before 1970, when the matrimonial causes act became effective in nigeria, one school of thought held the view that the lacunae in the marriage act could be filled by applying the law and practice for the time being in force in england.42 whatever may be the validity of this point of view, the possibility of its application has been lost since 31 ibid 32 ibid 33 article 6 african women’s protocol 34 article 6(1) african children's charter on rights and welfare of children 35 article 21 african children's charter on rights and welfare of children 36 ibid 37 ibid 38 universal declaration of human rights, 1948 39 ibid 40 1999 constitution of the federal republic of nigeria (as amended) 41 ibid 42 nwogugu e.i, family law in nigeria 3t edition (lagos: hebn publishers, 2014) african customary and religious law review (acarelar) 3 (2022) 68 | p a g e 1970 matrimonial causes act came into force banning the application of english law43. the other point of view is to the effect that common law rule will apply to the age of marriage.44 both by cannon law and at common law, a valid marriage could be contracted only if both parties had reached the legal age of puberty, which is fixed at fourteen for boys and twelve for girls.45 if either party was under this age when the marriage was contracted, it could be avoided by either party when that party reached the age of puberty but if the marriage is ratified (as it could impliedly be by continued cohabitation) it became irrevocably binding.46 it is perhaps surprising that this remained the law until well into the present century. in the words of pearce j ‘according to modem thought, it is considered socially and morally wrong that persons of an age at which we now believe them to be immature and provide for their education should have the stresses responsibilities and sexual freedom of marriage and the physical strain of childbirth’. however, it must be noted that section 18 of the marriage act provides that the mature age a person is said to be mature without seeking parental consent is 21 years. though the marriage act did not specifically provide for the actual marriageable age, however, section 48 of the marriage act provide that, it is an offense for any person to marry a minor without a written consent obtained from minor’s (under the age of twenty-one) parents and it is an offence to assist or procure any other person to marry such minor, such person shall be liable to imprisonment for two years. from the wordings of section 48 of the act, it can be inferred that the specific age (without seeking consent) for marriage under the act is 21 years, though the minimum age for marriage was not specified under the act. section 18 of the marriage act is against the intendment of section 21 of the child right act, which stipulatess that the minimum age for marriage is 18 years. section 29(4) (a) and (b) 1999 constitution which provide thus: ‘for the purposes of subsection (1) of this section, (a) ‘full age’ means the age of eighteen years and above; (b) any woman who is married shall be deemed to be of full age. from the above provision of the constitution, it is emphatically clear that the actual marriageable age without seeking parental or guidance consent is 18. this view has been argued by nwogugu on page 42 of his text when he stated thus; the requirement of parental consent to marriage became part of our law when the age of majority was regarded as twenty-one years. this has changed not only nigeria but in other parts of the world. the provisions may therefore be considered anachronistic in the light of modern nigeria law... moreover, the prescribed minimum age of marriage in nigeria is now eighteen. child’s rights act the concept of child's right has been an offshoot of human rights which connotes the rights and entitlements claimed for children worldwide. child’s rights are human rights which are claimed specifically for the protection of children and care afforded to minors. the united nations convention on the rights of the child is the most widely ratified convention in history. the convention sets out the rights of children aged zero to eighteen years and is government's responsibility to ensure those rights are enforced. the rights of a child are based on what a child needs to survive, grow, participate and meet their potential. these apply equally to every child, regardless of ethnicity, gender or religion. the child’s rights act47 was enacted in nigeria because of the united nations convention on the rights of the child which was adopted on 24th november 1989. because is a united nations convention, which means an agreement between the nations or the world, it does not become binding on nigerians until it has been enacted by the national assembly. this was done by the national assembly in 2003.48 the child’s rights act prohibits both the marriage of those considered to be children and the betrothal of children. with child marriages, part iii section 21 of the child right act49 provides that ‘no person under the age of 18 years is capable of contracting a valid marriage, and accordingly a marriage so contracted is null and void and of no effect whatsoever’. also, part l section 22(2) of the child’s right act50, further prohibits the betrothal of children, maintains that; ‘no parent guardian or any other person shall betroth a child to any person. a contravention of either section 21 or section 2251 amounts to a fine of 500,000 naira or imprisonment for a term of five years or to both a fine and 43 ikubanni o. o., and aidonojie p. a. ‘the legality of virtual marriage in nigeria given the covid-19 pandemic social distancing: an x-ray of the matrimonial causes act’, madonna university, nigeria faculty of law, law journal, 6 no. 1 (2021): 123-129 44 adesanya a.s, law of matrimonial causes (ibadan: university press, 1973),7 45 harrod v. harrod (1854) 1 k& j 469; (1854) er 344 46 rogers e.m, family law (london: blackstone press ltd, 1998) 47 child right act 2003 48 section 12 of the 1999 constitution of the federal republic of nigeria (as amended) 49 child right act 50 ibid 51 ibid okongwu & imoisi: an evaluation of the consequences and legal paradigm of child marriage in nigeria 69 | p a g e imprisonment.52 although the child rights act imposes sanctions on child marriages and betrothal, the use of the conjunction or is worrisome because there 1s an indication that those who partake in child marriages and, in turn, contravene the child rights act53, may escape jail by only paying the stipulated fine of 500.000 naira. however, the option to pay a fine for a heinous act such as child marriage appears to be the least of the cra's problems. the tenure of the act is not confined to marriage under the act or christian marriage but rather it is intended to cover both customary and islamic law marriages. a major problem with the child’s rights act is acceptance. this act is expected to be adopted or domesticated by all the 36 states of the federation. however, only 22 states of the federation have adopted or domesticated the act54. these states are in the southern parts of nigeria. the northern states have refused to adopt it because of the contradictions in the act and the attempt of the act to modify certain religious beliefs in nigeria. what this means that children may have no rights in states which are vet to enact the law and, subsequent, if child marriage is practiced, it is not an offence. furthermore, apart from the state of enugu, the 11 sales which are yet to domesticate the child rights act are in the northern part of nigeria and these have adopted penal code which is based mainly on sharia law. while the law sets a child to be a person under 18 in islam no age marks childhood. a child’s maturity is established by signs of puberty such as menstruation, the growth of breasts and pubic hair. to further buttress the argument that age is a factor contributing to the reluctance of many northern states to pass the cra, when one of nigeria's northern states, jigawa, accepted the child’s rights act, its state law did not enact the age of 18 as the age of majority as specified in the act. instead, it determined the age of childhood concerning puberty. however, the state repealed the initial child rights act because it did not follow due process before enactment but it is yet to enact a new child’s rights act. also, many countries such as the us do not have a national standard as to marriageable age but countries where marriage of children is not uncommon such as india have had the law as under eighteen years 1or many years. one burdening question, is how many people around the world are affected? almost 900 million people, 82 per cent of these are females which is a great impediment to reproductive, maternal, and child health which could eliminate a single generation. when looking at the global of prevalence on where child marriage most occurs, you can see that we don’t have figures in many areas of the world. but for those places, we see that it is not uncommon and it is particularly prevalent in the areas of subsaharan africa and south asia. however, under the child’s rights act55, two basic principles are laid down to guide the operation of all provisions of the legislation. the first principle relates to the best interest of the child been the primary consideration while the second principle relates to the protection and care of a child. they share the same fundamental right as adults although the right marry is dormant until they are of age but some governments such as nigeria have failed to state a marriageable age although majority of countries state eighteen. child marriage is a violation of human rights and is prohibited by several international conventions and other instruments. 5. conclusion and recommendations this study has been able to identify the fact that child marriage equals early marriage. that given the fact that there is lack of a universal definition is due to the different socio-cultural value and religion spread over various countries but we as mothers and the government fail to be concerned about the best interest of the children. in this regard, due to the array of socio-medical consequences of early marriage, it became logical for countries to legislate against child marriages. nigeria followed suit by enacting the ‘child’s rights act 2004 which amongst others out rightly prohibits child marriages. furthermore, it is clearly stated in the constitution that a child is not an adult and every citizen in nigeria is entitled to fundamental human rights such as the right to education, protection and so on. however, the paramount issue is the effective implementation of this law by states within the country. in this regard, it suffices to state that the government, the society and various stake holders of the society that has the interest of all children must endeavor to condemn any form of child marriage. furthermore, the laws that condemned any forms of marriage must be set in motion to prosecute anyone engage in child marriage in nigeria. 52 section 23 of the child rights act cap. c. 50 laws of the federation of nigeria,2004 53 ibid 54 aidonojie p. a. and gbale p. o. ‘legitimacy: the current legal perspective of a child born out of wedlock under the english and nigeria law’, nigeria bar association section on legal practice newsletter, 2 no. 16(2020): 18-21 55 ibid oyibodoro: emerging trends in assisted reproductive technologies (art) and the repugnancy test for rules of customary law: a call for re-evaluation 15 | p a g e emerging trends in assisted reproductive technologies (art) and the repugnancy test for rules of customary law: a call for re-evaluation* abstract the received english laws did not abolish the customary laws of the colonial people. they were to be observed and enforced by the established colonial courts. however, for such customary law to be enforced, it must pass the requisite validity test of not being repugnant to natural justice, equity and good conscience, not being incompatible either directly or by implication with any law in force for the time being; nor contrary to public policy. post-colonial statutes like the evidence act in section 14 (3) and the various high court rules of the states of the federation echoed this test. on the basis of these tests, some rules of customary laws, especially those relating to what the author called assisted customary reproductive system (acrs); were declared repugnant and rejected over the years. in the face of modern trends in assisted reproductive technologies (art) in the field of orthodox medicine, the paper questions the basis for the continued observance of the repugnancy test for rules of customary law; especially those relating to acrs. the paper finds that what modern art seeks to do or is doing for people with fertility challenges in contemporary times; customary law was doing for pre-colonial people with fertility problems. aside methodology, the paper finds no other significant difference with both methods. the intents, purposes and philosophical underpinning of the two systems remain the same. the paper, therefore, recommend that as art is pushing legal systems to modify existing laws to accommodate it, there is need to also re-evaluate and uphold acrs; since both serve the same purpose. keywords: customary law, assisted reproductive technologies, repugnancy test, validity test, emerging trends, assisted customary reproductive system 1. introduction before the advent of colonialism, africans govern themselves through customary laws enriched in the custom, local usages and belief which a particular community accepts as binding. these customary laws developed and grew from time immemorial and cover every facet of life: marriage and matrimonial, land, commerce, succession, criminal, and even inter-community relations etc. like any other law regulating the conduct of men in any social formation in the world, customary laws were accepted as binding and applied in indigenous courts under the supervision of traditional leaders. however, with colonization comes the requirement of validity test which every rule of customary law must pass before it can be enforced. it should be pointed out here that in the charter of the royal niger company of 1886, the british undertakes, as a matter of policy, to respect and uphold the customs and laws of the people(s) of its colonial territories.1 in what seems a follow up of this policy, ordinance 4 of 1876 provided for the preservation of customary law and declared in section 18 that the colonial courts should enforce the observance of the customary laws of the people of the territory. a proviso was, however, added that such customary laws to be enforced must not be repugnant to natural justice, equity and good conscience and must not be incompatible either directly or by implication with any law for the time being in force. post colonial statutes like the evidence act and high court laws of the states in nigeria re-echoed this provision.2 on the basis of these tests, many rules of customary law were and are still being rejected by the courts as repugnant to natural law, equity and good conscience. a cursory look at some of the decisions of the courts will reveal that they were decided by reference to the value judgment and universal standard of morality as conceived by the british and other colonial powers of the time. the decisions did not reflect the mores, aspirations, expectations and sensibility of the people of the colonial territories but the values of the civilized nations. rules of customary law which permits a barren woman to procure another woman so that she could bear children by her, for instance, were rejected as woman to woman marriage and declared repugnant for negating the principles of marriage.3 similarly, the rule of customary law which award paternity of children of an illicit association with a married woman during separation to the husband of the woman was declared repugnant to natural justice, equity and good conscience and contrary to public policy on the ground that the custom denied paternity to the biological father.4 no doubts, the decisions of the courts in the foregoing cases and many more, as we shall see, were influenced by the cultural background of the english judges that presided over them. the british at that time, conceived marriage purely as a union between a man and a woman and; natural paternity in terms of blood relations between the child and the father. anything outside this is seen as offensive and should be rejected. the paper re-evaluates the basis of the *by ufuoma garvin oyibodoro, ba, llb, llm, bl, lecturer, department of private law, delta state university, abraka. email: garvinesuire@gmail.com. tel: 08028517285 1newbury, c.w; (1960) british policy towards west africa: selected documents (1875-1914), (london: hutchinson & co ltd) p. 254 2 see section 20 of the high court law of akwaibom state and section 26(1) of high court law of lagos state 3 meribe v. egwu (1976) 3 sc 50 at 58. 4 edet v. essien (1932) 11 nlr 47, see also mojekwu v. ejikeme where the nrachi custom of the nnewi people which allows a father to put his unmarried daughter in his compound for purpose of raising children, especially males to succeed him was rejected on the ground that the children were denied the paternity of their natural father. mailto:garvinesuire@gmail.com african customary and religious law review (acarelar) 3 (2022) 16 | p a g e repugnancy test for rules of customary laws in the face of emerging trends in reproductive technology; especially assisted reproductive technology (art) methods like in vitro fertilization (ivf), surrogacy, gestational carrier, gamete donation (donation egg fertilized with donated sperm) and; social trends like same sex marriage; which seems to whittle down the concept of marriage and paternity by blood as previously held but are fast becoming new universal moral standard in contemporary times. 2. customary law as a social norm generally, in any social set up, there are diverse normslegal, moral, religious, political, traditional etc. however, moral and legal norms, sometimes jointly referred to as social norms, stand out in the social system because; they form the basis for social order and regulation. they exist to solve challenges that confront the society and in doing so they also adapts to new situation as they unfold.5 it is within this context that customary law should be appreciated as a social norm. the term customary law has many definitions. statutorily, customary law has been defined as the rule of conduct which governs legal relationship as established by customs and usage.6 a judicial force was added when the court describes it as the organic or living law of the indigenous people of nigeria regulating their lives and transactions.7 customary law may well be described as the body of organic rules and regulations, derived over the years from the customs and cultural practices of a particular community which has been accepted by the people as binding for the regulation of legal relationships. it is necessary to point out here that the term customary law does not indicate that there is a single uniform set of customary laws in nigeria. the term is rather employed as an omnibus description for diverse customs in nigeria. however, despite this diversity there are significant points of convergence in the application of the rules customary law in different community. before the advent of colonialism, there are laudable features or characteristics of customary law which makes it standout. first, enforced rules are as accepted by the community as binding. in other words, the requisite assent is the people and; it thrives based on the experience, sensibility, aspirations and value judgment of the community and not as dictated from the outside. although, there is room for borrowing from outside, even at that, it must respond to the sensitivity of the people. flexibility is another characteristic worthy of mention. customary law has the ability to adjust and adapt to social imperatives as situations changes in the community without losing its relevance. this is so because; it does not have a cumbersome procedure for amendment. in most case, a rule may be amended or changed after a meeting of the traditional ruler and his council on the prevailing situations in the community. even at that, the amendments or changes were not dictated from outside and they reflect the value or moral judgment of the people. 3. colonialism and the three-part validity tests of customary law the suzerainty of customary law as accepted by the people based on their moral judgment and sensibility was encroached upon in nigeria with the imposition of british rule. historical literature indicates that the british colonized nigeria from 1863 to 1960. the process started with the conquest and annexation of lagos on 6 august 1861 as a british colony. this was followed by the amalgamation of the colony of lagos with southern protectorate in 1906. the consolidation of the northern protectorate with the colony and protectorate of southern nigeria in 1914 to create the colony and protectorate of nigeria; marks the end of the process. with this fait accompli, came the introduction of the whole gamut of british legal system to lagos and subsequently the whole country. however, the british colonial administration did not abolish the customary laws of the indigenous people of nigeria but permitted their enforcement in the british created courts within a restrictive spectrum. in fact, section 18 of ordinance 4 of 1876 enjoined the established colonial courts to enforce the observance of the customary laws provided they pass what could be called the three-part tests: (a) the customary law to be applied must not be repugnant to natural justice, equity and good conscience, (b) the customary law must not be incompatible either directly or by implication with any law for the time being in force, and (c) the customary law to be applied must not be contrary to public policy. it will interest you to know that even post colonial statutes like the evidence act in section 14 (3) and the various high court rules of the states of the federation merely reechoed in substance this british innovation. this colonial innovation has immense consequences for the development of our customary law. first, it makes the colonial power the ultimate determiner of what is repugnant and what is not. this is so because; the innovation stripped the people of the power to determine what norms becomes customary law and vest same on the colonial courts. secondly, the validness or other wise of a rule of customary law is judged according to the civilization and moral judgment of the colonial power and not of the people. in fact, most english judges that presided over the courts were influenced by their cultural background hence they could not appreciate the moral rectitude behind most customs they were called to apply. thirdly, it unnecessarily restricts the scope of application and stifles the organic development of rules of customary law. in 5 uweru, bethel chuks, ‘repugnancy doctrine and customary law in nigeria: a positive aspect of british colonialism’ african research review (vol.2 no2) 2008, 286-295 @287, doi:10.4314/afrrev.v212.41055 6 see section 2 of the nasarawa state customary court of appeal law, 1996. 7 oyewumi v. ogunesan (1990) nwlr 182 at 207. oyibodoro: emerging trends in assisted reproductive technologies (art) and the repugnancy test for rules of customary law: a call for re-evaluation 17 | p a g e order words, the innovation makes the application of customary law uncertain and unpredictable. fourthly, the innovation led to the imposition of the english legal system on the customary legal system which led to a kind of new version of customary of law. the reason for the introduction of the validity tests, according to lord wright, was to invalidate barbarous customs.8 lord atkin was more forth coming when he said that a barbarous custom must be rejected on ground of repugnancy as the court cannot transform it to a milder one.9 to the british, a custom is barbarous if it is uncivilized and; uncivilized is judged according to their moral standard and cultural background. therefore, any custom that fall below the british cultural standard is held to be repugnant. indeed, it has been argued that the repugnancy test was an instrument used by the british to reform and bring our customary law within the acceptable objective standard of moral law recognized by all nations.10 according to uweru,11 another reason for the introduction is the multiplicity of the customary laws enmeshed in superstitions which makes judicial proof difficult. in his view, the test was introduced so as to remove superstitious and harsh elements, and make customary law to conform to the universal standard of morality.12 elias t.o. threw his weight and argued that the repugnancy test has positive effect on the development of customary law as it eliminate gross injustice inherent in its application.13 in order words, the repugnancy test is intended to civilize customary laws by eliminating offensive customary practices and provoke a sense of reform of the customary law in the people of the colonial territories. with due respect, the author disagreed with the views expressed above and contend that if, anything, the repugnancy tests, in reality, created a new version of our customary laws that do not reflect the sensibility and moral judgment of the people but that of the colonial power. in order words, the intended amendment or reform of the customary law was effected from outside, using external parameters. in fact, the british were playing out the role of a bully in subjecting our customary law to their standard of morality. the doctrine empowered the british to ‘cherry pick’ using their moral standard while they jettisoned what might strengthen our moral and cultural belief in the process. secondly, it cannot be convincingly said that repugnancy test was imposed in order to bring our customary law to be in conformity with universal standard of the morality. morality, apart from being subjective, often reflects the wish or belief of the powerful. what is referred to as universal standard morality is nothing but morality as conceived by the powerful. the powerful makes the rules and imposed same on the weak or the subjugated. historical literature attests to this fact. at the local level for instance, the sokoto caliphate imposed islamic legal and moral standard on the aborigines of what is present day northern nigeria after their successful expansionist programme. furthermore, in 1976, the courts in nigeria, under the guise of enforcing universal moral standard, abhorred a rule of customary law that permits woman to woman marriage and declared same as repugnant to natural justice equity and good conscience. 14 today, it is interesting to know that powerful western nations, who once conceived marriage as a union of a man and a woman and rejected same sex marriage as repugnant to natural justice; now recognized gay marriages and homosexuality as human rights and a new universal morality. and all efforts are geared toward imposing same on the weak nations of the world as a new universal moral standard under the guise of human rights. thus, universal moral standard is what the powerful says it is per time. this lends credence to the view expressed by a school of thought that sees the repugnancy doctrine not just in term of law but a kind of colonial subjugation of customary law to british law in order to prevent it from coping with the socioeconomic development of nigeria.15 4. repugnant to natural justice, equity and good conscience test as pointed out above, the first test every rule of customary law to be applied must pass is that it must not be repugnant to natural justice, equity and good conscience. the test is popularly referred to as the repugnancy doctrine. although, the phrase may appear to have three different meanings, in practice, however, it is interpreted conjunctively since it conveys only one common idea which has been expressed in apparently three phrases.16 the supreme court of nigeria made this point clear when it declares that equity in it broad sense, as used in the repugnancy doctrine is equivalent to the meaning of natural justice and embraces almost all, if not all, the concept 8 laoye v. oyetunde (1944) ac 170. 9 eshugbaye eleko v. government of nigeria (1931) ac 262 @ 273 10 uweru (n.5) 294 11 ibid, 293 12 ibid 13 elias, t.o, the nature of african customary law (england: manchester university press, 1956) 14 meribe v. egwu (1976) 3sc 50 15 okolie e.o; ‘need for statutory intervention in the continued operation of the repugnancy doctrine in nigeria’; academic scholarship: issn: 2141-3428 <www.researchgate.net> accessed 5/4/2021 16 ibid @ 4 http://www.researchgate.net/ african customary and religious law review (acarelar) 3 (2022) 18 | p a g e of good conscience.17 historically, the origin of the doctrine is not so clear but it has been trace to the roman canonical law which were imposed and applied in most states of medieval european.18 while the term ‘repugnant’ means repulsive or disgusting, offensive or distasteful, the precise meaning to be ascribed to the phrase ‘natural justice, equity and good conscience’ has been a very difficult issue. this difficulty has been compounded by the evasive posture of the courts to give a clear cut definition of the phrase. in lewis v. bankola19 for instance, osborne cj lamented that phrase is made up of high sounding word he was not sure of their meaning and therefore; would not be amenable to a strict and accurate definition. the nigerian court of appeal also acknowledged the difficulty in giving a strict and precise definition to the phrase.20 however, it will interest you to know that while the british colonial authority in nigeria prevaricated as to the precise meaning to be ascribed to the phrase ‘natural justice, equity and good conscience’, their french counterparts in cameroon were more forthcoming. the french colonial authority adopted the phraseology which gave a strict interpretation to the effect that local customary laws were to be applied provided they were not contrary to the principles of french civilization.21 in other words, french civilization is the yardstick for judging the validity or otherwise of a rule of customary law. in the final analysis, it safe to point out that by virtue of this test, many indigenous rules of customary law were and are still being rejected as repugnant. 5. review of some relevant cases in the light of the foregoing, i will now consider the application of the doctrine of repugnancy through some relevant cases in order to show the attitude of the courts. in edet v. essien22the husband and wife were separated but without paying back the bride price paid on the wife, the wife had children by another man. the estranged husband, in exercise of his right under customary law, laid claim of the children of the illicit affair. the court declared the customary law repugnant to natural justice, equity and good conscience on the ground that it denied the natural father paternity of the children. in mojekwu v. ejikeme23, the court of appeal held that the customary law rule of nrachi of the nnewi people; where a father places one of his unmarried daughter in his house for the purpose of raising children, especially male children, who could succeed him as repugnant to natural justice because the children born to the daughter in respect of whom the ceremony of nrachi has been performed are denied the paternity of their natural father.24 in nwaribe v. president oru district court25 a widow who decided to stay in her late husband house had a child by another man. she then sought formal dissolution of her customary marriage with her dead husband and in the process the issue of paternity of the child was raised. the high court presided by egbune (j) held that since the man knew the custom and still went ahead with it, awarded the paternity of the child to the brother of the widow’s late husband. justice egbune was criticized for departing from the precedent set by edet v. essien by awarding paternity of the child to a non-biological father. a community evaluation of the foregoing cases will reveal that the courts have gone beyond the factual finding of the extant rules of customary law but has gone further to consider the effect of the application of a rule of customary law. this is apparent because; almost always, the ratio decedendi put forward by the court is that the customary law allowed the award of paternity of a child to a nonbiological parent. the second reason, which goes to the effect of the application of the customary law, is to the effect that upholding the customary law will encourage or promote promiscuity. with due respect, it goes without saying that the courts do not appreciate the jurisprudential underpinning of the customary practice. the extant customary law on which both edet v. essien (supra) and nwaribe v. president oru district court (supra) were decided rest solidly on the sound principle of law that a man should not be allowed to profit from his wrong doing. the point is succinctly expatiated upon that in africa, the family is a precious unit and a man’s house must not be invaded by strangers. even when spouses are separated, third parties should not interfere with the wife. if a third is desirous of marrying another’s wife, he must first of all encourage the woman to legally divorce the husband. it is the failure to seek the requisite divorce that is punished by taking away the fruits of the illicit association.26 in other words, an adulterous man must not 17 per uwais, jsc in okonkwo v. okagbue and ors (1994) 9 nwlr (pt. 308) 301 at 320 18 uweru (n.5)289 19 (1908) 1nlr 8 20 see mojekwu v. ejikeme (2000) 5 nwlr 402 21 see salacuse, j. 1969 an introduction to law in french speaking africa: african south of the sahara. virginia: mitchie publishers in mikano e. kiye ‘the repugnancy and incompatibility tests and customary law in anglophone cameroon’ african studies quarterly vol. 15, iss 2 march 2015 page 85 -106 at 89. 22 (1932)11 nlr 47 23 (2000) 5nwlr 402 24 per tobi (cja) 25 (1964) 8 ernlr 24-27 26olayide adigun, cases and texts on equity, trusts and administration of estate (ibadan: ayo sodimu publishers, (1987) 42 cited in e.o. okolie’s ‘need for statutory intervention in the continued operation of the repugnancy doctrine in nigeria’ (2019) academic scholarship:issn:2141-3428 @ www.researchgate.net <accessed 5/4/2021 http://www.researchgate.net/ oyibodoro: emerging trends in assisted reproductive technologies (art) and the repugnancy test for rules of customary law: a call for re-evaluation 19 | p a g e be allowed take benefits of his wrong doing. in this regard, therefore, one can confidently say that the decision of egbune (j) in nwaribe’s case (supra), although criticized for departing from the precedent set in edet v. essien; represents the true grasp of the essence of the custom and; accord with the jurisprudential underpinning behind the customary practices. furthermore, one of the reasons given especially in mojekwu v. ejikeme (supra) for rejecting the nrachi custom is that it denied the natural or biological father of paternity of the children of such association. this also is not a sound reason for rejecting the custom. paternity is a position of responsibility that can be assumed in several ways by anybody at any time depending on the situation. biology or nature (i.e. genetics) is just one of such ways. adoption, for instance under the relevant law, is yet another way one can assume this responsibility. it is a well established scientific fact that an adopted child does not share in the deoxyribonucleic acid (dna) of the father yet; he is the father of the child. every society, the law has a way of meeting the peculiar need of a class of the peoples; and in line with the utilitarian principle, the english developed the law on adoption. in the same vein, since the typical african society is patrilineal, the nrachi custom was developed to meet the peculiar need of a father who has no male successor. meribe v. egwu (supra) is one of the earliest cases where the notion of woman-to-woman marriage received judicial attention in nigeria. the fact of case revealed that a barren woman, in line with the customary law of the people, married another woman for her husband so that she could have children by her. under the extant customary law, the issues of such a marriage are regarded as issues of the barren woman for the purpose of inheritance. although the court distinguished the word married in the context of the case as merely colloquial and meaning procured, nonetheless laid down the principle for rejecting woman to woman marriage. the court said: in every system of jurisprudence known to us, one of the essential requirements for a valid marriage is that it must be the union of a man and a woman thereby creating the status of husband and wife. indeed, the law governing any decent society should abhor and express its indignation of a woman-to-woman marriage; and where there is proof that a custom permits such an association, the custom must be regarded as repugnant by virtue of the proviso to section 14(3) of the evidence act and ought not to be upheld by the court.27 in okonkwo v. okagbue,28 a subsequent case decided on the principle enunciated by the supreme court in meribe v, egwu (supra), the facts of the case were that a wife who had no son for her husband while he was alive, decided to marry a woman for the dead husband to bear sons that will stand in the name of the dead husband for her for the purpose of inheritance; a practice recognized under customary law. the supreme of nigeria held that the customary law was repugnant to natural justice. the court held as follows: …it is a fiction and a fallacy, for there is no way in which a dead person can naturally get married to the living. it is utterly impossible. therefore, what, at best, happened in the instant case at hand is a marriage between the 3rd defendant and the 1st and 2nd defendants, which is a marriage between a woman and two women. this is what this court has held in eugene meribe’s case (supra) that must be regarded repugnant to natural justice equity and good conscience.29 the supreme court went further as followsthe marriage is therefore between a woman and a woman, a custom which has been declared repugnant by this court in the case of eugene meribe v. joshua egwu (1976) 3sc 23. in that case, the facts revealed a custom less distasteful than the present case.30 marriage is seen purely as a union between a man and a woman. again, the courts missed the point and fail to appreciate the jurisprudential underpinning behind the practice which is to assist women with fertility challenges to have children. what is referred to as marriage between woman and woman is nothing but procuringa situation where a barren woman procures another woman for either her husband or another man for the purpose of having children by her for the husband. there is nothing distasteful or immoral in the custom as the women involved do not engaged in same sex sexual relationship. although, the supreme court acknowledged this factual finding in meribe’s case (supra), yet, went ahead to declare the custom repugnant and set the precedent. indeed, as shall be revealed shortly, the customary practice is akin to modern assisted reproductive technology methods like in vitro fertilization (ivf), surrogacy, gestational carrier, sperm and ovum donation; which are pushing for space and are fast becoming accepted norm in contemporary legal systems. 27 per madarikan jsc at page 58 28 (1994) 9 nwlr (pt. 308) 301 29 per uwais (jsc) at pages 324-325, para f-g 30 ibid african customary and religious law review (acarelar) 3 (2022) 20 | p a g e 6. emerging trends in modern assisted reproductive technologies over the ages, infertility has been a major challenge to couples in all human society of the world; pushing both traditional and modern societies to device ways to surmount the problem. however, with recent advances in the field of orthodox medicine in form of assisted reproductive technologies (art), especially in vitro fertilization (ivf), ovum and sperm donation, surrogacy and; gestation carrier; hope is being restored to couple hitherto called barren. as the technology becomes common place, however, there is constant shift in the way society perceived human life and claim to genetic offspring and; legal systems are being modified to accommodate them. it is important to note here that art is an omnibus phrase used to describe various artificial reproductive methods of which ivf is the first stage. in vitro fertilization (ivf), popularly known as test tube baby, is a modern assisted reproductive technology used in the treatment of infertility that allows laboratory conception of children. scientifically, ivf process entails combining a man’s sperm and a woman’s egg outside their body in a laboratory dish and the fertilized egg (i.e. embryo) is then injected and implanted in the woman’s uterus (womb) to develop to maturity.31 in other words, couples with fertility challenges can go through this method and have their biological children (i.e. children carrying their gene). the history of ivf is traced to the successful birth of louise brown, reputed to be the first world test tube baby, on july 25, 1978. 32 since then, ivf has become common place technology in the treatment of infertile people all over the world. this advancement in reproductive technology is not without a prize and risks. injury to organs near the ovaries, such as the bladder, bowel, or blood vessels, pelvic infection, maternal hemorrhage, delivery by cesarean section (c-section), gestational diabetes etc are some of the risks involved.33 this is in addition to the huge financial cost. the average cost per ivf cycle in the united states ranges approximately between 9,266 to 33,000 usd.34 in nigeria, the average cost of one cycle of ivf treatment is put at n900,000 excluding the cost of drugs, diagnosis and other ancillary services. the cost of ivf drugs ranges between n400,000 and n800,000, depending on the treatment plan.35 however, the risks and financial cost is nothing compare to the joy and sense of fulfillment that accompanied a successful outcome of the process. surrogacy and gestational carriers are yet other stages or processes of assisted reproductive technologies. surrogacy has been described as an arrangement where a woman agrees to carry a pregnancy using her own oocytes (egg) but the sperm of another couple and undertakes to relinquish the child when born to the couple whose sperm was used to fertilize her.36 in other words, the woman who carries the pregnancy also provides the egg to be fertilized using the sperm of couple who will later claim the baby when delivered. apparently, the process does not involve sexual relationship between the man and the surrogate woman but there is genetic link. and it is designed to assist women afflicted with infertility but whose husbands are virile. from all indications, the child when relinquished to the couple will carry the dna of the father alone. gestational carrier on the other hand, entail an arrangement where a couple, who has undergone ivf with their own genetic gametes (i.e. egg and sperm) and then places the resultant embryo in the womb of another woman, the gestational carrier, who then carry the pregnancy and relinquish the child to this couple upon delivery. apparently, the child of this arrangement will bear the gene of both parents and no genetic link with the carrier. gamete donation /third party reproduction is another growing trend in reproductive technologies. it is a situation where a person or couples with infertility problem receives help from other people to have a child. the help that may be offered and received as the case may be include donation of egg, donation of sperm, donation of embryos etc. generally, gametes are sperm or egg cells. in modern times, donated eggs and sperm have been used to produce children for couple with fertility challenge. the first pregnancy resulting from egg donation was reported in 1984. since then, egg donation has helped many struggling with infertility to conceive. with egg donation, the intended parents will have, at least, a genetic link to the child if the husband contributes the sperm 31america society for reproductive medicine, ‘in vitro fertilization (ivf): what are the risks?’ @ www.reproductivefacts.org accessed 15/5/2021. 32 jones h.w, ‘moments in the life of patrick steptoe’, fertility and sterility, vol. 66, no.1, pp.15-16, 1996 cited in paul r. brezina and yulian zhao, ‘the ethical, legal, and social issues impacted by modern assisted reproductive technologies’ obstetrics and gynecology international, vol. 2012, article id 686253, doi: 10.1155/2012/686253., p.1. 33 america society for reproductive medicine, ‘in vitro fertilization (ivf)’ @www.asrm.org 34 paul r. brezina and yulian zhao, ‘the ethical, legal, and social issues impacted by modern assisted reproductive technologies’ obstetrics and gynecology international, vol. 2012, article id 686253, doi: 10.1155/2012/686253., p.3. 35 fertility hub nigeria, ‘understanding ivf treatment cost in nigeria’; @fertilityhubnigeria.com <accessed 15/5/21>. 36 james s. chilvers r et al, ‘avoiding legal pitfalls in surrogacy arrangement’, reproductive biomedicine, vol.21, no7, pp862867, 2010 in paul r. brezina & yulian zhao, (supra) p.4. http://www.reproductivefacts.org/ oyibodoro: emerging trends in assisted reproductive technologies (art) and the repugnancy test for rules of customary law: a call for re-evaluation 21 | p a g e used to fertilize the egg. 37however, if third parties donates both the eggs and the sperm, the child will not have genetic link to both parents, yet the recognized as parent of the child. there are different factors to be considered before the donation. one is whether the identity of the donors will be known or he/she will be an anonymous donor. reasons for egg donation are to assist women whose ovaries have either been removed or are functioning poorly. women who were born without ovaries can also take benefit of this process. women with poor egg quality, advanced in age, women who have had multiple failed ivf etc also take advantage of the process.38 sperm donation on the other hand may be due to decreased sperm count, ejaculatory dysfunction, when there is no male partner such as with single woman who wish to become parent or lesbian couples who desire a pregnancy, but who lacks a male partner.39 good as the processes may sound, there are risks associated with the process. it potential channel to pass on diseases like syphilis, hepatitis b and c, human immunodeficiency virus (hiv), even zika virus and other heritable diseases.40 other health complications may also include ovaries swell and fluid accumulation in the abdominal cavities, bleeding, damage to surrounding structures such as bowel and bladder (transvaginal ultrasound aspiration), ectopic pregnancy etc.41 7. art and acrs have one common goal it is apparent from our analysis that many rules of customary law rejected for being repugnant; share many features with modern assisted reproductive technologies. in meribe’s case for instance, the woman procured by the barren woman for her husband shares the same status with a surrogate mother under modern art. the child under surrogacy belongs to the couple and not the surrogate mother even though it was her egg that was fertilized with the couple sperm. yet, the barren woman was denied paternity of the children the procured woman had for her husband on the ground that it is woman to woman marriage. similarly, okonkwu v. okagbue where, after the death of her husband, the widow who had no son married another woman for her late husband who begat sons for her. the custom was declared repugnant and the widow was denied the paternity of the children on the ground that it was a woman to woman marriage. however, a critical look at what played out will reveal that the procured woman fit perfectly into the position of a surrogate mother whose egg is fertilized with sperm donated by an anonymous donor under art. usually, under art, the parenthood of the child when born belong s to the woman who procures the surrogate mother and sperm. even the facts of mojekwu’s case are in accord with gamete donation /third party reproduction method of modern art. the father under the nrachi custom is akin to a man who procures gamete (i.e. donated egg fertilized with donated sperm) and his daughter who under goes the nrachi ceremony takes the position of a gestation carrier of modern art. and as customary with art, paternity of the product of the arrangement belongs to the man who procures. yet, the nrachi custom was declared repugnant and the father denied paternity of the children. the point being stressed here is that in both systems: assisted reproductive technologies (art) and assisted customary reproductive system (acrs), the underpinning philosophy is one and the same: society giving a helping hand in one way or the other to members who could not produce children on their own. the separating line, however, is methodology. while art employs modern scientific methods; acrs is anchored on tradition methods. indeed, both methods have their own strength and weakness but the overall aim is to solve a peculiar problem in human society and promote happiness. one thing that is apparent is that both systems de-emphasized paternity based solely on genetics or blood relation. furthermore, both systems have also brought to bear a tectonic shift in the way society view human life and genetic offspring. and in this regard, one can boldly say that customary law, but for the repugnancy test which stultified its development, is far ahead of modern art. aside this, considering the cost, the health risks and disorder; the excruciating pains associated with modern art procedures, one is, perhaps, to prefer the customary method. in all, both methods aimed at promoting equality and happiness in society which, in essence, is the fulcrum of the utilitarian school of thought that conceives happiness as one of the prime goals of man. and any action, no matter how distasteful it may appear, is right provided it will put an end to misery, pain, and suffering and; engenders happiness in society. in fact, the pains, misery, low esteem and unhappiness experience by people with fertility challenges in society can best be imagined. 8. imperative of a re-evaluation of the repugnancy test today, almost all societies have embraced and accepted the reality of modern art practices as a new universal norm or moral standard; and legal systems are being modified to accommodate it. but the unfortunate thing is that while societies are celebrating modern art breakthroughs; rules of customary law which performed the same functions in pre-colonial african societies are still being jettison as repugnant. there is need to re-think the 37 america society for reproductive medicine, ‘third –party reproduction: sperm, egg, and embryo donation and surrogacy’ <www.reproductivefacts.org> 38 ibid 39 ibid. 40 ibid. 41wikipedia ‘in vitro fertilization’ <en.m.wikipedia.org> accessed 21/5/21 http://www.reproductivefacts.org/ african customary and religious law review (acarelar) 3 (2022) 22 | p a g e repugnancy test in the face of this developments. this is the whole essence of this paper which is to draw attention to this trend and provoke a re-evaluation of the basis upon which some rules of customary law, especially those the author refers to as acrs, were and are still being rejected as repugnant. 9. conclusion infertility is a major problem that engages the attention of both traditional and modern societies because it rubs its victims of necessary joy and self-esteem. all societies seek ways to overcome it through their laws. acrs is the one of the solutions to the challenges of infertility in pre-colonial african societies. unfortunately, it growth and development was stultified by colonial doctrine of repugnancy. art is modern society solution to the problem. however, while the emergence of art is widely accepted and existing laws are being modified to accommodate it, acrs is rejected as repugnant. aside methodology, the paper finds no difference in both methods in terms of purpose or philosophical underpinning. they both have their strength and weakness. therefore, no one of them should be accepted and promoted while the other declared repugnant. oraegbunam & enemali: canon law and the nigerian legal system page | 10 canon law and the nigerian legal system* abstract various jurists and schools of jurisprudence have held various views on the nature, structure, scope and method of law. john austin of the positivist school merely sees law as ‘a command from political superiors to political inferiors, and backed by sanction’. the greek sophists, including socrates, plato and aristotle consider law as ‘a matter of social and political expediencies, having nothing to do with absolute and uniform standards’. this study finds that in nigeria, customary and islamic laws are respectively recognized in the constitution and enforced with state machinery. christian and other religions’ laws are not accorded such recognition. the implication is that islamic law, among other religious laws, is favoured in spite of the plurality of religions and laws in a multi-faith nigeria. this paper examines the nature and role of canon law in relation to the nigerian legal system. the study examines the possibility, propriety or otherwise of mainstreaming canon law into the nigerian legal system as a response to the festering agitations from some quarters, especially christian. suffice it, for the purpose of this paper, to look at law as a body of ordinances and rules laid down for human interest and development. keywords: canon law, christian religion, islamic law, nigerian legal system, civil law. 1. introduction: the meaning of canon law the term ‘canon’ has been defined as ‘a law, rule or ordinance in general, and of the church in particular.’ it denotes an ecclesiastical law or statute. it is also seen as a rule of doctrine or discipline. hence, it is a ‘body of principles, standards, rules or norms’. canon law (from ancient greek: κανών, kanon, a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical authority (church leadership), for the government of a christian organization or church and its members.1 black’s law dictionary defines ‘canon law’ as ‘a body of roman ecclesiastical jurisprudence compiled in the 12th, 13th and 14th centuries from the opinions of the ancient latin fathers, the decree of general councils, and the decretal epistles and bulls of the holy see’.2 canon law has grown steadily since that time, and it is now codified in the codex juris canonici of 1983…’3 this code is expanded, modified or reviewed by the pope who is the supreme legislative authority in the church. black’s law dictionary further defines ‘canon law’ albeit more broadly as ‘a body of law developed within a particular religious tradition’.4 in this sense, it can include laws of other christian denominations. accordingly, the encyclopedia britannica puts it thus: canon law, latin jus canonicum, is body of laws made within certain christian churches (roman catholic, eastern orthodox, independent churches of eastern christianity, and the anglican communion) by lawful ecclesiastical authority for the government both of the whole church and parts thereof and of the behaviour and actions of individuals. in a wider sense the term includes precepts of divine law, natural or positive, incorporated in the canonical collections and codes.5 canon law had been referred to in some quarters as ‘church law’. it is however our considered view that the alternative nomenclature, ‘church law’ for the code of canon law is a misnomer. this view finds support in the fact that in strict ecclesiastical jurisprudence, the application or applicability of the code of canon law is only germane to the administration of the catholic church. hence, it is not every religious christian organization that recognizes the existence and application of canon law. most *by ikenga k.e. oraegbunam, phd (law), phd (phil.), phd (rel. & soc.), med, ma, bth, ba, bphil, bl, formerly head, department of international law and jurisprudence, faculty of law, nnamdi azikiwe university, p.m.b. 5025, awka, anambra state, nigeria. email: ikengaken@gmail.com; ik.oraegbunam@unizik.edu.ng. phone number: +2348034711211; and *aloysius enemali, dcl, jcl, llm, bl, bphil, bth, senior lecturer and head, department of canon law, faculty of canon law, catholic institute of west africa (ciwa), port harcourt, rivers state, nigeria. email. fraloyudoka@yahoo.com. phone: 08066894367. 1 https://en.wikipedia.org › wiki › canon law. accessed on 4/6/2021. 2 b. a. garner (ed), black’s law dictionary, 7th edition, west group, st. paul, minnesota, 1999, p. 198). 3 ibid. 4 ibid. 5 https://www.britannica.com/topic/canon-law. accessed on 4/6/2021. https://www.britannica.com/topic/roman-catholicism https://www.britannica.com/topic/eastern-orthodoxy https://www.britannica.com/topic/anglican-communion https://www.merriam-webster.com/dictionary/ecclesiastical https://www.merriam-webster.com/dictionary/canonical mailto:fraloyudoka@yahoo.com https://www.britannica.com/topic/canon-law acarelar 2 (2021) page | 11 christian denominations hold the bible and that alone (sola scriptura) as the only acceptable code of principles, rules and norms. while the catholic church recognises the bible as a fundamental source of its faith, it also looks unto other sources such as tradition, magisterium, liturgy, lives of saints, etc for its life, doing and being. the catholic church actually teaches that while the scriptures were inspired by god, they were written down by men of the church, and that what was written down was so done from the tradition of the church already existing and subsisting. this study, however, uses the canon law of the catholic church as an instance of how christian religious law can relate to the nigerian legal system. 2. canon law as a legal system and tradition a legal system is a procedure or process for interpreting and enforcing the law6. in its narrowest sense, a legal system refers to the parties, the judges, the court staff, and the lawyers that make up the litigation process, and of course the laws and rules that guide that process. canon law is a fully developed legal system, with all the necessary elements: courts, lawyers, judges, a fully articulated legal code,7 principles of legal interpretation, and coercive penalties, though it lacks civilly-binding force in most secular jurisdictions. one example where it did not previously apply was in the english legal system, as well as systems, such as the u.s., that derived from it. here criminals could apply for the benefit of clergy. being in holy orders, or fraudulently claiming to be, meant that criminals could opt to be tried by ecclesiastical rather than secular courts. the ecclesiastical courts were generally more lenient. under the tudors, the scope of clerical benefit was steadily reduced by henry vii, henry viii, and elizabeth i. the vatican disputed secular authority over priests' criminal offences, and this in turn contributed to the english reformation. the benefit of clergy was systematically removed from english legal systems over the next 200 years, although it still occurred in south carolina in 1827. in english law, the use of this mechanism, which by that point was a legal fiction used for first offenders was abolished by the criminal law act 1827. the structure that the fully-developed roman law provides is a contribution to the canon law.8 the academic degrees in canon law are the j.c.b. (juris canonici baccalaureatus, bachelor of canon law, normally taken as a graduate degree), j.c.l. (juris canonici licentiatus, licentiate of canon law) and the j.c.d. (juris canonici doctor, doctor of canon law). because of its specialized nature, advanced degrees in civil law or theology are normal prerequisites for the study of canon law. much of the legislative style was adapted from the roman law code of justinian. as a result, roman ecclesiastical courts tend to follow the roman law style of continental europe with some variation, featuring collegiate panels of judges and an investigative form of proceeding called ‘inquisitorial‘ (from the latin ‘inquirere’, to enquire). this is in contrast to the adversarial form of proceeding found in the common law system of english, u.s. law and the commonwealth, which features such things as juries and single judges. the institutions and practices of canon law paralleled the legal development of much of europe, and consequently, both modern civil law and common law bear the influences of canon law. sampel, a brazilian expert in canon law, says that canon law is contained in the genesis of various institutes of civil law, such as the law in continental europe and latin american countries. sampel explains that canon law has significant influence in contemporary society.9 canonical jurisprudential theory generally follows the principles of aristotelian-thomistic legal philosophy.10while the term ‘law’ is never explicitly defined in the code,11 the catechism of the catholic church cites aquinas in defining law as ‘...an ordinance of reason for the common good, 6https://www.google.com.ng/search?q=a+legal+system+can+be+defined+as&source=hp&ei=wxd8ymuqd4emaiqbsdgm &iflsig=ainfcbyaaaaayhwla4cfisncxi2q4yxvoyvnmk1p3xt&oq=a+legal+system&gs_lcp=cgdnd3mtd2l6eaeyadiccaayaggamgiiadiccaayaggamgiiadol cc4qsqmqgweqkwi6cagaeledeimboguiabcxazoicc4qsqmqgwe6agguoguilhctajofcc4qsqm6bwgaee yqqfq9hly90hg1iubaabwahgagagke4gbqysbkgelns0yljiuny4yljgyaqcgaqgqaqdnd3mtd2l6saea&sclient=g ws-wiz. accessed on 4/6/2021. 7m ramstein, (1948). manual of canon law. terminal printing & pub. co., p. 49 8 r e. rodes, (1964). ‘the canon law as a legal system-function, obligation, and sanction’: 47. accessed on 4/6/2021. 9 ‘canon law.’ encyclopædia britannica. encyclopædia britannica online academic edition. encyclopædia britannica inc., 2013.. 10 edward peters, jd, jcd, ref. sig. ap. ‘home page’. cannonlaw.info. 11 gray, msgr. jason. ‘home page’. jgray.org. retrieved 8 june 2013. https://en.wikipedia.org/wiki/common_law https://en.wikipedia.org/wiki/benefit_of_clergy https://en.wikipedia.org/wiki/benefit_of_clergy https://en.wikipedia.org/wiki/ecclesiastical_court https://en.wikipedia.org/wiki/house_of_tudor https://en.wikipedia.org/wiki/henry_vii_of_england https://en.wikipedia.org/wiki/henry_viii_of_england https://en.wikipedia.org/wiki/elizabeth_i_of_england https://en.wikipedia.org/wiki/elizabeth_i_of_england https://en.wikipedia.org/wiki/english_reformation https://en.wikipedia.org/wiki/henry_shultz https://en.wikipedia.org/wiki/legal_fiction https://en.wikipedia.org/wiki/criminal_law_act_1827 https://en.wikipedia.org/wiki/licentiate_of_canon_law https://en.wikipedia.org/wiki/doctor_of_canon_law https://en.wikipedia.org/wiki/codex_iuris_civilis https://en.wikipedia.org/wiki/roman_law https://en.wikipedia.org/wiki/inquisitorial_system https://en.wikipedia.org/wiki/adversarial_system https://en.wikipedia.org/wiki/civil_law_(legal_system) https://en.wikipedia.org/wiki/common_law_(legal_system) https://en.wikipedia.org/wiki/aristotelianism https://en.wikipedia.org/wiki/thomism https://en.wikipedia.org/wiki/philosophy_of_law https://en.wikipedia.org/wiki/philosophy_of_law https://en.wikipedia.org/wiki/catechism_of_the_catholic_church https://en.wikipedia.org/wiki/catechism_of_the_catholic_church https://en.wikipedia.org/wiki/treatise_on_law 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https://www.google.com.ng/search?q=a+legal+system+can+be+defined+as&source=hp&ei=wxd8ymuqd4emaiqbsdgm&iflsig=ainfcbyaaaaayhwla4cfisncxi2q4yx-voyvnmk1p3xt&oq=a+legal+system&gs_lcp=cgdnd3mtd2l6eaeyadiccaayaggamgiiadiccaayaggamgiiadolcc4qsqmqgweqkwi6cagaeledeimboguiabcxazoicc4qsqmqgwe6agguoguilhctajofcc4qsqm6bwgaeeyq-qfq9hly90hg1iubaabwahgagagke4gbqysbkgelns0yljiuny4yljgyaqcgaqgqaqdnd3mtd2l6saea&sclient=gws-wiz https://www.google.com.ng/search?q=a+legal+system+can+be+defined+as&source=hp&ei=wxd8ymuqd4emaiqbsdgm&iflsig=ainfcbyaaaaayhwla4cfisncxi2q4yx-voyvnmk1p3xt&oq=a+legal+system&gs_lcp=cgdnd3mtd2l6eaeyadiccaayaggamgiiadiccaayaggamgiiadolcc4qsqmqgweqkwi6cagaeledeimboguiabcxazoicc4qsqmqgwe6agguoguilhctajofcc4qsqm6bwgaeeyq-qfq9hly90hg1iubaabwahgagagke4gbqysbkgelns0yljiuny4yljgyaqcgaqgqaqdnd3mtd2l6saea&sclient=gws-wiz https://www.google.com.ng/search?q=a+legal+system+can+be+defined+as&source=hp&ei=wxd8ymuqd4emaiqbsdgm&iflsig=ainfcbyaaaaayhwla4cfisncxi2q4yx-voyvnmk1p3xt&oq=a+legal+system&gs_lcp=cgdnd3mtd2l6eaeyadiccaayaggamgiiadiccaayaggamgiiadolcc4qsqmqgweqkwi6cagaeledeimboguiabcxazoicc4qsqmqgwe6agguoguilhctajofcc4qsqm6bwgaeeyq-qfq9hly90hg1iubaabwahgagagke4gbqysbkgelns0yljiuny4yljgyaqcgaqgqaqdnd3mtd2l6saea&sclient=gws-wiz https://scholarship.law.nd.edu/cgi/viewcontent.cgi?referer=https://search.yahoo.com/&httpsredir=1&article=1081&context=nd_naturallaw_forum http://www.britannica.com/ebchecked/topic/92870/canon-law http://canonlaw.info/ http://www.jgray.org/comps/book1.html oraegbunam & enemali: canon law and the nigerian legal system page | 12 promulgated by the one who is in charge of the community’12 and reformulates it as ‘...a rule of conduct enacted by competent authority for the sake of the common good.’13 in the latin church, positive ecclesiastical laws, based directly or indirectly upon immutable divine law or natural law, derive formal authority in the case of universal laws from the supreme legislator (i.e., the pope), who possesses the totality of legislative, executive, and judicial powers in his person,14 while particular laws derive formal authority from a legislator inferior to the supreme legislator. the actual subject material of the canons is not just doctrinal or moral in nature, but all-encompassing of the human condition15. 3. sources and evolution of canon law the most fundamental source of canon law is the bible, especially the new testament. the new testament provides numerous clear instructions for various aspects of christian life. the gospels provide instructions on matters such as baptism and the eucharist (matt 28:19; luke 22:19; 1 cor 11:23–25), marriage (matt 19:3–10), the payment of clergy (luke 10:7–12), the church’s judicial authority (matt 18:15–17), and relations with the state (matt 22:17–22). saint paul’s writings offer even more guidelines for the christian community, including the payment of clergy (1 tim 5:17), requirements for ordination (1 tim 3:1–13), how to handle accusations against clergy (1 tim 5:19), and how to relate with non-christians (1 tim 5:9–10). many of these norms are later developed into legal language in future canonical collections. canon law developed in a more formalized sense following the first three centuries of the christian church. prior to the time of legalization, one could not speak much in terms of a church-state relation, beyond the simple facts of persecution or non-persecution. after legalization, and especially as theological disputes emerged dividing the church, the roman emperors began holding ecumenical councils (from the greek οἰκουμένη γῆ, the inhabited world). these were councils where bishops from various local churches were present, understood as representing the entire church. while the ecumenical councils were called in response to theological questions, the bishops present also used the opportunity to issue legislation addressing various issues facing the churches. while local councils often also issued canons, these ecumenical canons had a special authority because of the fact that they were issued by the οἰκουμένη and were thus seen as binding on all christians. these ancient canons, called the sacred canons in the christian east, form the common canonical foundation of the church in both east and west. this canonical tradition was taken up into the civil law of the roman empire, where it was a normative part of civil law for centuries. the code of justinian (529), for example, has as its very first title the definition of the state church as that of nicene christianity.16 the fifth title of this same first book decrees the suppression of heresies.17 in fact, if one examines the initial twenty titles of the first book of the codex, the first thirteen concern ecclesiastical topics, while the remaining seven concern imperial privileges and general norms of legal interpretation. for the romans living in the empire, canon law was civil law. future redactions of roman law, such as the ecloga of leo iii the isurian, maintained this practice. in fact, the inseparability of canon and civil law far outlasted the roman empire: it even remained the case for centuries after the fall of byzantium, as the civil law of the ottoman empire placed christians in a millet system where they were judged, primarily, by their historical christian laws well into the nineteenth century.18 in the west, the canons of the ecumenical councils were taken up into various canonical collections and especially distilled through the writings of the popes. this formed a genre of canonical sources called decretals.19 in the twentieth century these writings were codified by the holy see into a single volume, the code of canon law.20 the process of codification reflected the changing reality of the church in 12 in brief §1976. catechism of the catholic church. usccb publishing. isbn 9781574557251. summa theologica i-ii, 90, 4 13 catechism of the catholic church, the moral law§1951. 14 canon 331, 1983 code of canon law 15 vatican archive. ‘code of canon law’. vatican.va. archived from the original on 20 february 2008. accessed on 4/6/2021. 16https://www.cardus.ca/research/law/reports/the-role-of-canon-law-in-the-catholic-tradition-and-the-question-of-churchand-state/ accessed on 4/6/2021. 17 ibid 18ibid 19 ibid 20 ibid https://en.wikipedia.org/wiki/latin_church https://en.wikipedia.org/wiki/natural_law https://en.wikipedia.org/wiki/supreme_pontiff https://www.vatican.va/archive/eng0015/__p6x.htm https://en.wikipedia.org/wiki/isbn_(identifier) https://en.wikipedia.org/wiki/special:booksources/9781574557251 https://en.wikipedia.org/wiki/summa_theologica https://www.vatican.va/archive/eng1104/__p16.htm https://en.wikipedia.org/wiki/1983_code_of_canon_law https://web.archive.org/web/20080220062727/https:/www.vatican.va/archive/eng1104/_index.htm https://www.vatican.va/archive/eng1104/_index.htm https://www.cardus.ca/research/law/reports/the-role-of-canon-law-in-the-catholic-tradition-and-the-question-of-church-and-state/ https://www.cardus.ca/research/law/reports/the-role-of-canon-law-in-the-catholic-tradition-and-the-question-of-church-and-state/ acarelar 2 (2021) page | 13 the modern world and the complexity of using all of the gathered sources contained in the corpus iuris canonici in a logical and effective manner. this complex task was made even more complicated by the growing body of canonical legislation not only from the council of trent but also decrees from the developing offices of the roman curia. these texts were simply not gathered or gatherable into a single volume.21 as a result, just as nation-states completed legal codes in the nineteenth century, it was determined that it was time for the church to update its legal system in a systematic and codified manner. this was a process that had its first movements already at the vatican council (1869). the process of codification and the reform of canon law led to the issuance of three codifications of canon law in the twentieth century, the 1917 codex iuris canonici, a revised 1983 codex iuris canonici, and the 1990 code of canons of the eastern churches.22 these canonical collections are understood as universal, exclusive, and authentic collections of law. be that as it may, canon law should not be considered as an exclusively ‘catholic’ thing. there is no shortage of books by eastern orthodox writers on the topic, and the canons remain a very living system of law for these christians, despite being over a millennium old.23 this is a method with its own challenges, recognizing that using fifteenhundred-year-old canons as a modern system of law can, at times, be inadequate.24 outside of the christian east, canon law also finds itself used in some reformation communities such as the church of england.25 pope john paul ii promulgated the revised codex iuris canonici in 1983 by means of the apostolic constitution sacrae disciplinae legis. the pope offers four clear definitions for the role and function of canon law. first, canon law makes the hierarchical and organic structure of the church visible. while the church is the mystical body of christ, it is incarnate in physical structures on earth. canon law provides good order to the church and defines how it is to function. this includes questions such as how bishops are to be appointed, how the supreme governing authority of the church is to be exercised, and norms for the acquisition and alienation of property. this provides a defined and expectable order in the church to its members. second, canon law ensures the proper exercise of the sanctifying function of the church.26 this respects the salvation of humanity as its primary purpose. sacraments are understood as ways that divine grace is made present, and canon law provides clear norms for their celebration. the church understands itself as being bound to follow the sacraments as established by jesus christ, and, as a result, firm conditions are required to ensure their valid celebration. these requirements are present in canon law in detailed form, for example, the eucharist can only be celebrated by a priest (sacerdos) using pure bread and wine and not by a deacon using rice crackers and grape juice.27 these requirements ensure the sacrament is real and valid and, consequently, grace is offered in a definitive manner and is available to aid the salvation of the faithful. third, canon law provides rights, obligations, and methods of resolving conflicts in the church. like any society, the church’s members, whether physical persons or legal (juridic) persons, have rights and obligations. these are articulated clearly in the canonical system. the canonical system also provides a system of trials and recourse to ensure the proper exercise of these rights and obligations. the church is a firmly hierarchical society, and there are occasions where a juridic superior may not function according to the norm of law. in these cases, the one claiming harm may make recourse to a hierarchical superior.28 additionally, physical and juridic persons can vindicate their rights using canonical trials and seek redress.29 certain crimes can be punished according to the norm of law, and, in fact, a trial is necessary to impose certain penalties.30 these procedures recognize that if rights are to have any meaning, they are by their nature in need of a mechanism that ensures their enforceability. fourth, canon law attempts to provide the structures that sustain and direct the church’s common initiatives. these structures are defined and directed in canon law. for example, a parish or a diocese must have certain 21 ibid 22 ibid 23 for a single-volume introduction to the orthodox christian canonical tradition, see p. rodopoulos, an overview of orthodox canon law (rollinsford, nh: orthodox research institute, 2007). 24 see j.h. erickson, the challenge of our past (crestwood,ny: st vladimir’s seminary press, 1991). 25 see n. doe, ‘the common law of the anglican communion,’ ecclesiastical law journal 7 (2003): 4–16. 26 christian theology traditionally sees the church as having three functions: teaching, sanctifying, and ruling. 27 codex iuris canonici (cic) c. 924. 28 cic cc.1732–39; codex canonum ecclesiarum orientalium (hereafter cceo) cc. 996–1006. 29 cic c. 1400, §1, 1º; cceo c. 1055, §1, 1º. 30 cic c. 1400, §1, 2º; cceo c. 1055, §1, 2º. oraegbunam & enemali: canon law and the nigerian legal system page | 14 bodies that aid its superior in governing the parish or diocese. there are norms to ensure that catholic schools, faculties, and universities follow the church’s mission.31 social communications are regulated to ensure the effective and authentic proclamation of the gospel and transmission of the christian faith.32 the simple facts of keeping the bills paid and the buildings open is guided by canon law. canon law has numerous elements in common with civil law.33 both are forms of positive law established by a legislator. both derive their ultimate governing authority from god. both govern relationships of members within an organization, in the case of one the church, in the case of the other the state. both systems attempt to provide the necessary structures of governance to ensure a wellfunctioning society. each has its respective sphere, however, with separate, but certainly not incompatible, goals to be achieved. this leads to a natural discussion of the relationship between the church and the state, which nevertheless is beyond the scope of this study. 4. the place of canon law in the nigerian legal system the relationship between the code of canon law and the nigerian legal system is an issue for consideration. certain fundamental questions are germane. is canon law a substantive or procedural law? is it a customary or religious law limited in its application to members of the catholic faith? can any state of the federation adopt the provisions of the canon law and enforce them with the state machinery as is the case with islamic law in some northern nigerian state? in fact, what is the scope and nature of the applicability and the limit of the enforcement of canon law in nigeria? a substantive law provides various enactments designed to regulate and control a policy issue or subject matter, creates and defines offences under the particular law and makes provisions for forms of penalties attendant to the violation of the law, along with providing a system of courts or tribunals for the determination of causes and matters arising therefrom. while considering the establishment by a law of a system of courts or tribunals as an attribute or test of its substantiveness, reference may, at this juncture, be made to the decision of the supreme court of nigeria in the case of legal practitioners’ disciplinary committee vs. chief gani fawehinmi where the supreme court in considering the ambit of the word tribunal as enacted in section 33 (1) of the 1979 constitution of the federal republic of nigeria, interpreted the word tribunal to include the legal practitioners’ disciplinary committee. hence, section 33 (1) of the 1979 constitution states: ‘in the determination of his civil and obligations, including and question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality’. this provision is in pari materia with the provisions of section 36 (1) of the constitution of the federal republic of nigeria 1999 (as amended). the 1983 code of canon law in various enactments thereof makes reference to ‘tribunals’, particularly in book vii making provisions for ‘processes’, and running through canons 1400 to 1752. can. 1402 states: ‘all tribunals of the church are governed by the canons which follow, without prejudice to the norms of the tribunals of the apostolic see’. can. 1408 provides that ‘anyone can be brought to trial before the tribunal of domicile or quasi-domicile’ the yet undetermined question arises as to whether the 1983 code of canon law may be adjudged as being substantive in view of its provisions for sanctions, trials and processes. one sincerely doubts that the supreme court of nigeria, if it were confronted with the determination of a case arising from or relating to the tribunals created by the canon law, would interpret the word ‘court’ or ‘tribunal’ to include the tribunals under the code of canon law. this line of jurisprudential opinion seems to be buttressed by the fact that the code of canon law does not apply to all and sundry, but purely private and applies personally to the christians of the 31 see, for example, cic cc. 796–821. 32 cic cc. 822–32. 33it should be mentioned for a common law audience that the functioning of canon law has structures more closely corresponding to continental civil law systems than english common law systems. for example, canon law has a lack of the concept of stare decesis, and canon law has a dual court of appeal and court of cassation system. this is not an exclusive relationship, however, and canon law does have some impact on english common law. on this topic see, for example, d.j. seipp, ‘the reception of canon law and civil law in the common law courts before 1600,’ oxford journal of legal studies 13 (1993): 388–420. acarelar 2 (2021) page | 15 catholic church. reference may be made to can. 1 which provides: ‘the canons in this code concern only the latin church’. the subject matter will be more appreciated if a bit of an exposition of the sources of the nigerian legal system and the divisions of the nigerian law is made. nigerian law can be classified into the following namely criminal law and civil law, public law and private law, common law and equity, substantive law and procedural law. criminal law is the law of crime. a crime or an offence is an act or omission punishable by the state.34 civil law is the law governing conduct which is generally not punishable by the state. although no clear distinction can be drawn between a crime and a civil wrong in terms of the quality of an act, so that an act may be both a crime and a civil wrong, yet in canon law there is apparently no such distinction whatsoever. offences under the canon law may however fall into a class of crime or civil wrong but there is no distinction as to the punishment to be imposed and the body to punish or prosecute the offence, as the general rule as stated in the bible in ezekiel 18:4 is ‘the soul that sins, shall die’. offences are further classified into felonies, misdemeanours and simple offences depending on the seriousness of the offence. the importance of such classification lies with the determination of the punishment to be awarded, the power of arrest, when an arrest can be made without warrant, when bail shall be granted etc. however no such classification seems to exist under the canon law. it may also be apt to take a look at the sources of the nigerian legal systems. the term ‘source of law’ is used in various senses but for the purposes of this paper it means the fountain of authority of a rule of law, that is, the origin from which a legal rule derives its authority. it is the means through which a rule forms part of the body of law. the sources of nigerian law are nigerian legislation, english law (which consists of the common law, the doctrines of equity, statutes of general application in force in england on january 1, 1900), statutes and subsidiary legislation on specified matters, customary law, judicial precedents. it is worth mentioning that the application of the sources of nigerian law involves, in varying degrees, interpretation of statutes. three main rules of interpretation are applied by the courts in interpreting statutes namely: literal rule, golden rule, and mischief rule. nigerian legislation consists of statutes and subsidiary legislations. statutes are laws enacted by the legislature. subsidiary legislation is law enacted in the exercise of powers given by a statute. it is also known as delegated legislation. it consists of rules, orders, regulations and byelaws. nigerian statutes consist of (a) ordinances (b) acts (c) laws (d) decrees and (e) edicts. customary law consists of customs accepted by members of a community as binding among them. in nigeria, customary law may be divided in terms of nature, into two classes, namely, the ethnic or non-muslim customary law and muslim law. this division is made more explicit by section 2 of the native courts law which provides that: ‘native law and custom includes moslem law’. ethnic law in nigeria is indigenous. each system of such customary law applies to members of a particular ethnic group. muslim law is religious law based on the muslim faith and applicable to members of the faith. in nigeria, it is not indigenous law; it is received customary law introduced into the country as part of islam. consequently it is not grounded in any particular locality. in large parts of the north, however, it has supplanted the local systems almost entirely, and occupies the same position in relation to those areas as does igbo law to most of the east, and yoruba law to most of the west. from this analysis, can there be any place for the canon law in the nigerian legal system? canon law being a doctrinal rule or administrative rule that governs the roman catholic church does not seem to fall into any of the criteria of laws that operate in nigeria, nor can it be said to fall into any of the sources. canon law prima facie could be deemed to be of supposedly a form of customary law in nigeria but a review of the characteristics of customary law will show the place of canon law as different from other rules which form customary law. the one feature of customary law that is stressed to the exclusion of all others is succinctly expressed in a dictum of bairamian f. j. it is, he said, ‘a mirror of accepted usage’35. examined more fully, that statement would seem to suggest two points, each on the subject. the first is that a particular customary law must be in existence at the relevant time, and must be 34 see criminal code (lagos state lagos, 1973, cap 31), see. 2; penal code (northern nigeria laws, 1963, cap 89), see. 2; criminal code (federal and lagos laws, 1958, cap 42), see. 2. 35 owonyin v omotosho (1961) all nlr 304. oraegbunam & enemali: canon law and the nigerian legal system page | 16 recognized and adhered to by the community. speed ag. c.j. at first instance in lewis v. bankole36 affirmed that the native law and custom which the courts enforce must be ‘existing native law and customary and not that of by-gone days’. the key words here are (1) ‘existence at the relevant time, (2) recognition, and (3) adherence to the community. there is no doubt that the canon law being a collection of rules written down, are in existence and are recognized and adhered to by the catholic community. but the question is what community is referred to here by bairamian j. from the definition of customary law given above, the ‘community’ here means the ethnic groups or tribes in nigeria which the catholic church cannot be said to be one. however, a careful and patient investigation of the form and content of the code of canon law (the code) vis-à-vis nigerian civil law reveals some similarities and differences of the two systems. one very serious area where there is similarity is statutory marriage law. it seems that apart from the provision on dissolution of marriage under the matrimonial causes act,37 all provisions on nullity of marriage and judicial separation are common to both systems. on the other hand, the most important area of conflict is the criminal law. section 36 (12) of the 1999 constitution provides thus: ‘subject as otherwise provided by this constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law; and in this subjection, a written law refers to an act of the national assembly or a law of a state, or any subsidiary legislation or instrument under the provisions of a law. yet, can. 1311 provides that ‘the church has its own inherent right to constrain with penal sanctions christ’s faithful who commit offences’. there is no doubt that the immediate implication of the above constitutional provision in relation to canon law criminal justice is that insofar as the canon law and principles are not enacted into a written law by the appropriate legislative body in nigeria, the implementation and administration of canon law criminal justice would be clearly unconstitutional and illegal in nigeria. the nigerian courts have had the opportunity to make pronouncement on the provision. hence, in aoko v. fagbemi,38 the court declined jurisdiction on a charge of adultery because adultery is not one of the offences in the criminal code governing the southern part of nigeria. the court maintained the same attitude in udokwu v. onugha.39 as if the above is not enough, section 36(4) of the constitution provides that whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal established by law.’ this provision has enormous implications for criminal justice system under the canon law. first and foremost, it provides that the hearing must be conducted in public. this means that hearing should be in a public place and accessible by the members of the public, male and female. this is quite the opposite of what obtains in canonical criminal procedure in which hearing is done in camera as it is not accessible to the public. secondly, the criminal trial, according to the provision, must take place in a court or tribunal established by law. the effect is that since the courts in question are those recognized by the constitution expressly or by implication, such fora as the ecclesiastical tribunal, bishop’s court, and so on by which criminal justice under canon law is dispensed can at best be described as kangaroo courts in the eye of nigerian criminal justice system which views them as unconstitutional, illegal, and lack jurisdiction. at best, canon law can be viewed as a foreign law which rather than binding has a mere persuasive effect on the adjudication of matters brought before civil courts in nigeria. 5. an evaluation canon law and civil law operate in respectively different spheres of life. the church and the civil state do not possess the same role, and each has its own function. the second vatican council in gaudium et spes states that ‘the church, by reason of her role and competence, is not identified in any way with the political community nor bound to any political system’. ‘the church and the political community in their own fields are autonomous and independent from each other. yet both, under different titles, are devoted to the personal and social vocation of the same men’. ‘the more that both foster sounder cooperation between themselves with due consideration for the circumstances of time and place, the more effective will their service be exercised for the good of all. for man’s horizons are not limited 36 (1908) 1 nlr 81 at 100. 37 cap m 7, laws of the federation of nigeria 2004, sections 15 and 16. 38 (1961) 1 all n.lr. 400. 39 (1963) 7 en. l.r.1. acarelar 2 (2021) page | 17 only to the temporal order; while living in the context of human history, he preserves intact his eternal vocation’. ‘the church, for her part, founded on the love of the redeemer, contributes toward the reign of justice and charity within the borders of a nation and between nations. by preaching the truths of the gospel, and bringing to bear on all fields of human endeavor the light of her doctrine and of a christian witness, she respects and fosters the political freedom and responsibility of citizens’.40 both the state and the church have their proper areas of competence, and these interact with each other in a complementary relationship. this is reflected even in the canonical system, which frequently takes up civil norms into its own legal structures. canon law is meant to make the proclamation of the gospel more effective. to this end, while the church certainly recognizes the legitimate authority of the state, it should be noted that the laws of the state are to be restricted to the state’s proper sphere and with a promotion of the common good. when these laws are contrary, they do not bind its subjects, and, in fact, catholics may even have an obligation to engage in civil disobedience. the interaction with the civil government is not done in order to establish the holy see as an equal partner as a subject of international law, but to ensure the good of religion and the proclamation of the gospel. courts, in general, have respected the authority of the church to determine its own internal discipline. the church understands that as an absolute right. it seems manifest, however, that the civil state does not see this as absolute right for there are situations where the civil courts will intervene in conflicts between members of the christian faithful, such as when the church neglects its own canonical discipline. the courts have already established their authority in the common law system to do so. the church also has the challenge of following its own discipline in order to credibly be able to speak, and especially criticize, the legal system of a state. in nigeria, the agitation from some quarters to have canon law mainstreamed into the nigerian legal system is to be understood against the backdrop of the constitutional and government’s bias in favour of islamic law in spite of the religious pluralism in the country. yet, the same argument against a wholesale adoption of islamic law especially its criminal aspects would also go for adoption of the criminal provisions of canon law. this is clearly congenial to state secularity principle which in nigeria pivots around section 10 of the constitution of the federal republic of nigeria 1999 (as amended). the section states that ‘the government of the federation or of a state shall not adopt any religion as state religion’. by this principle, the government is required to be officially neutral in matters of religion, neither supporting nor opposing any particular religious beliefs or practices. the principle demands that all citizens should be treated equally regardless of religion, and that government does not give preferential treatment to a citizen from a particular religion over others. secularity in nigeria should prevent religion from controlling government or exercising political power. the constitution by section 10 should protect each individual including religious minorities from discrimination on the basis of religion. be that as it may, nigeria is not an atheistic state in which officially all religious beliefs and practices are opposed. the requirement of secularity or neutrality does not necessarily imply the fact that governments must not in any way relate to religious sect or communities, since they are part of the society for which the government is responsible. it does however require the fact that when they must act, it must be without partiality or discrimination.41 in the light of the above, the highest extent canon law can be mainstreamed into the nigerian legal system would be to the degree that it is confined to personal aspects in the same manner islamic law is constitutionally allowed.42 personal aspects here relate to matters of personal life such as religion, marriage, gifts, family life, and subjects understood ejusdem generis to the mentioned items. it follows that any attempt to widen the scope of sharia (as already done in 12 northern nigerian states) or canon law enforcement to criminal and penal jurisdictions will certainly offend against the ideals of state secularity. this muslim practice in nigeria is indeed the cause of the unending crises in the nation today. rather than itching for introduction of canon law into the nigerian legal system, agitation will be better channeled to the removal of all provisions relating to sharia law in the constitution. the position of this study is not at all based on the difficulty that may be encountered, as some scholars would hold, in an attempt to entrench christian laws into the nigerian legal system as a result of multiple 40 gaudium et spes, no. 76. 41 see also transworld airlines incorporated v. hardison 432 u.s 83 (1977). 42 see section 277 of the constitution of the federal republic of nigeria 1999 (as amended). oraegbunam & enemali: canon law and the nigerian legal system page | 18 denominations and nay, multiple laws. just as there is no monolithic islamic law as there are sundry versions of islam and schools of law, one cannot argue successfully that the adoption of christian laws is unrealizable simply because there are many laws of christian denominations. this is because, even under civil law in a federal state, there are different laws operating depending on the jurisdictions and federating units. the position of the study is simply based on the need to foster harmony, peaceful coexistence, and viable democracy, which ideals constitute the main reason for law. however, there is urgent need to have these religious laws rationalized into the curriculum of legal education in nigerian universities. such will surely enhance mutual understanding and dialogue among citizens. islamic law is already part of the curriculum especially in many universities in the north, but should also be extended to the south. in the same manner, christian and other religions’ laws should also be made part of legal studies throughout the nation. thomas: impact of legal technology on the role performance of paralegals in the nigeria legal environment 62 | p a g e impact of legal technology on the role performance of paralegals in the nigeria legal environment* abstract in our contemporary legal system, the use of paralegals in the delivery of legal services is slow but definite. paralegals are saddled with administrative responsibilities under the supervision of a legal practitioner. administrative legal tasks such as, legal research, drafting of correspondences, pre and post-trial obligations amongst others are undertaken by paralegals. with the rise of legal technology, paralegals are finding new opportunities to enhance their skills, improve their efficiency and ability to take on more responsibilities, in line with global trends. thus, this study which is doctrinal, seeks to examine the implication of legal technology on the role performance of paralegals in the legal system. this study reveals that paralegals are integral to the success of law practice. however, the challenges of adapting to new legal technology by paralegals can be daunting, especially in cases of data security, expensive cost of acquiring, using and maintaining legal technology, as well as, training of paralegals to use these technologies. this paper therefore recommends amongst others, the need for adequate training/continuing legal training of paralegal/legal professionals, to fully harness the benefits proffered by legal technology for enhanced productivity. keywords: paralegals, legal technology, role performance, nigeria 1. introduction in nigeria and indeed the world over, there is a constant evolution of the legal landscape. to this end, staying informed and adapting to the latest technological trends and advancements in the business realm, will give a law firm a competitive edge. technology today is the driving force of legal transformation if properly and effectively tapped, but without the right people and well-defined processes, its potentials remain untapped. it is thereto very essential to recognize the crucial role that paralegals play through the use of technology in staying competitive in the business world. in the 21st century, law firms are expected to transit from the process of adapting and evolving traditional legal practices, to embracing legal technology and innovation, as well as employ the services of trained assistants – paralegals, to aid in the effective and efficient dissemination of justice.1 by leveraging legal technology, digital platforms, artificial intelligence, mastering of technological devices, the entire legal team consisting of lawyers, paralegals, etc. can enhance effectiveness, streamline workflows, improve client experience, and deliver more accurate results. legal technologies and an effective team can empower law firms to compete favourably and remain relevant in a rapidly changing system while meeting the growing demands of clients who expect optimal service delivery through fast results and cost-effective solutions. the covid-19 pandemic experience significantly propelled the adoption and exploration of digital methods in ensuring the maintenance of peace in the nation. the advancement in technology cum legal technology offered the legal industry the needed flexibility to discharge its obligation even remotely.2 post covid-19, the use of legal technologies in the legal profession has remained very effective largely because of the flexibility and ease it offers. for example, a legal team can work simultaneously on a document stored in the cloud and hold meetings via zoom or microsoft team to discuss legal matters without having to meet physically.3 the paralegal profession in nigeria is growing, albeit slowly to become an integral part of the legal system where sophisticated tasks can be undertaken by paralegals in the dispensation of justice.4 this is quite different from the trend in other climes like the united states, england, canada and south africa where paralegals are already integrated and are performing elevated legal tasks for legal practitioners and the legal system as a whole. with the proliferation of legal technologies, such as the generative artificial intelligence (ai), case management systems, digital law platforms, etc., it is important to determine the effectiveness of such tools on the role performance of paralegals in a law firm. it has been argued that legal technologies, such as, generative ai, which excels at querying vast libraries of information and drafting documents, as well as, analysis of legal problem; case management systems, used in streamlining workflow, improve collaborations among legal teams and providing real-time updates about case progress, has gradually led to the reduction of mundane tasks, and are gradually taking over the duty of paralegals who handle much of the administrative work of law firms, such as: reviewing of documents, conducting legal *by ekaobong akan thomas, department of paralegal studies, school of enterprise programmes, akwa ibom state polytechnic, ikot osurua, akwa ibom state, nigeria, email: ekaobong24thomas@gmail.com, tel: +2347033181839 1 this involves moving from manual processes to automated systems, and utilizing data-driven insights for decision-making. 2cazalis, c. ‘legal tech in a post covid -19 world’ (st. andrews law review 12 may 2021) <https://www.standrewlawreview.com> accessed 10 august 2024 3 lexisnexis, ‘how has covid changed the use of legal technology’ <https://www.lexisnexis.co.uk> accessed 10 august 2024 4 according to yakub hammed, this is not unconnected to the fact that the legal profession is gravely saturated and there is little or no room for paralegals to fully optimize their potentials. there also appears to be a low appreciation of the usefulness of paralegals and how their skillset can be effectively deployed within the law firm. see yakub abiola hammed, ‘origin of the modern paralegal: role of paralegals in nigerian law firms and ethics of the profession’ (2023) mailto:ekaobong24thomas@gmail.com african customary and religious law review (acarelar) 5 (2024) 63 | p a g e research and drafting pleadings etc.5 others argue that although legal technological tools will reduce the time a paralegal spends on task, it will however, enhance the paralegal’s operation of administrative duties and draw them closer to the clients, as well as reassuring the clients of the firm’s dedication to their cause. hence, the job of the various legal technologies will be complementary the role performance of paralegals, rather than replace it.6 this study therefore seeks to examine the impact of legal technology on the role performance of paralegals in the nigeria legal system. the study is divided into six parts: part one deals with the definition of a paralegal, the scope of paralegal duties in the legal industry, as well as provides a workable definition of legal technology. part two delves into the origin of the paralegal’s profession in the nigeria legal system and beyond. part three deals with the legal framework for the licensing of a paralegal in nigeria. part four looks at the legal technology employed by paralegals and its functions, while part five assesses the impact of legal technology on the role performance of paralegals in nigeria legal systems. part six draws conclusion and recommendations made. 2. who is a paralegal? robinson7 defines a paralegal thus; ‘a legal paraprofessional is an assistant with limited training in the law, working for and under the general supervision of a solicitor, performing responsible tasks which might otherwise be carried out by solicitors’. to regan,8 paralegals ‘exist as a shadow – supporting the work of the legal profession in crucial ways but with strict limits on what they can do, receiving no formal training, no kudos, having no associations, and being poorly paid’. in 1997, the american bar association standing committee on legal assistants9 adopted a definition of legal ‘assistant/paralegal’ (replacing their 1986) as ‘a legal assistant or paralegal is a person, qualified by education, training or experience, who is employed or retained by a lawyer, law office, corporation, government agency or other entity and who performs specifically delegated substantive legal work for which a lawyer is responsible.’ to harris,10 a paralegal is defined as ‘a person who is employed, usually for reward in a legal environment, who possesses legal knowledge, but also has organisational, communication, and interpersonal skills which are utilised in providing a service to the community’. this definition recognises that a sound knowledge of laws and a use of that knowledge is crucial, but a paralegal’s role falls short of the right of appearance in court. inherent in this definition is the understanding that a paralegal’s role is not merely as a ‘little people(s)…little lawyers’.11 this definition accurately represents the type of substantive work that paralegals perform in the united states. in the nigeria legal system, a paralegal is any person, trained through experience and or education, who support or assists a judge, lawyer, the court system, a law office, legislature, legal department in delivery of legal services and dispensation of justice. it also includes all persons carrying out administrative, clerical, procedural and substantive legal work under the supervision of a judicial officer or a barrister and solicitor enrolled in the supreme court.12 indeed, not every task that constitutes legal work need necessarily be performed by a qualified legal practitioner. there are many people who work in a legal capacity but are not admitted to practice, and therefore cannot be called legal practitioners. they have been variously designated as paralegals, legal assistants, law clerks, articled clerks – depending to some extent upon their role. though there are myriads of varying definitions of who a paralegal is, core to these definitions is that paralegals are persons qualified by education, training or work experience to perform delegated or subsidiary tasks of a legal practitioner. it may thus be necessary to heed the words of statsky13that; ‘the day has long passed when so many had to ask, ‘what is a paralegal?’ today, the most likely question is, ‘what’s the most effective way to use a paralegal?’ 3. the scope of paralegal duties: the nature and where paralegals work? since the legal practitioners’ monopoly of the legal profession is confined to his right of appearance in a court of law and to the preparation of certain documents for a reward, there is therefore a vast field of legal tasks open to performance by paralegals. paralegals work in a variety of legal environments which include but are not limited to, working in a private legal practice where they are supervised by a lawyer. in countries such as nigeria and australia, 5 brendan, t., ‘ai and what it means for the legal profession’ (1 june 2019) <https://www.linkedin.com> accessed 2 september 2024 6 hall, e., ‘what does ai mean for the future of paralegals?’ (2023) <https://www.linkedin.com> accessed 2 september 2024 7 johana, r., ‘the need for and training of legal paraprofessionals in new south wales solicitor’s offices’ (1976) law foundation of nsw, sydney 8 regan, f., ‘legal service delivery, can we do it a better way?’ (1988) 13(5) legal services bulletin 195 9 american bar association standing committee on legal assistants home page <http://www.abanet.org> accessed 10 october, 2022 10 harris, r., ‘paralegal education: a view from ‘down under’ – an australian perspective’ (1996) 12(1) journal of paralegal education and practice, 49, 55 11 cowley, j.i., ‘a comparative study of paralegalism in australia, the united states of america, england and wales’ (llm thesis southern cross university 2004) <https://researchportal.scu.edu.au/esp10ro/> accessed 10 august 2024 12 ‘paralegalism: essential for administration of justice reform’ thisday (nigeria, 12 january 2021) <www.thisdaylive.com> accessed 15 september 2022 13 statsky, w., essentials of paralegalism (3rd edn, west publishing 1998) thomas: impact of legal technology on the role performance of paralegals in the nigeria legal environment 64 | p a g e there is no substantive acknowledgement by legal practitioners of the community of paralegals as a distinct legal group or of their dependence upon paralegal services. but nonetheless, the paralegal profession has been evolving largely in the shadow of the legal profession. the scope of duty of a paralegal was clearly buttressed in greene’s case. in akron bar association v greene,14 raymond greene was not an attorney licensed to practice law in ohio, yet he drafted and filed divorce documents for a client (under a corporate name) signing as ‘paralegal for doretha driggs’. he then appeared in court on behalf of ms driggs. the trial judge dismissed the case because neither the plaintiff nor an attorney had signed the complaint. the akron bar association brought a claim against both the corporation formed by greene and greene himself. the board of commissioners on the unauthorized practice of law, issued an order prohibiting greene from any further of such activities, greene indicated by letter that ‘he had not represented himself as an attorney and would no longer perform acts that are questionable’. despite this undertaking greene further prepared and filed a counterclaim on behalf of another client, signing the complaint for ‘deborah price christian, pro se, r edinborough greene, paralegal, power of attorney for both’. having determined that greene was not an attorney, the trial judge refused to hear greene’s representation on behalf of ms. christian. the akron bar pursued an action against him. the court found against greene, instructing the respondent to refrain from any further activity involving the counselling of persons with respect to their legal rights, the preparation of legal instruments and documents to secure legal rights for any person, the preparation, signing or filing of pleadings or other papers on behalf of persons incident to actions in courts or other tribunals in the state of ohio, and the appearance of respondents on behalf of any other persons in any court or tribunal in the state of ohio. also, in the matter of william randolph easler,15the court was asked to examine the role of a paralegal as a support for the supervising lawyer. the court held that, paralegals are routinely employed by licensed attorneys to assist in preparation of legal documents such as deeds and mortgages. the activities of a paralegal do not constitute the practice of law as long as they are limited to work of a preparatory nature, such as legal research, investigation, or the composition of legal documents, which enable the licensed attorney – employer to carry out a given matter to a conclusion through his (sic) own examination, approval or additional effort. thus, the court was able to accommodate a role for a paralegal purely of a preparatory nature. however, the case of missouri v jenkins16 is considered the seminal case that acknowledged the role of paralegals in the delivery of legal services in the united states. in this case, amongst other issues raised, the united states’ supreme court considered the issue of fees, due to paralegals. it held that the compensation of paralegals and law clerks at relevant market rates, as part of the attorney fees, was proper. the court stated thus; it has frequently been recognised in the lower courts that paralegals are capable of carrying out many tasks, under the supervision of an attorney that might otherwise be performed by a lawyer and billed at a higher rate. such work might include, for example, factual investigation, including locating and interviewing witnesses, assistance with depositions, interrogatories, and document productions, compilation of statistical and financial data, checking legal citations and drafting correspondence. much work lies in a gray (sic) area of tasks that might appropriately be performed by either an attorney or a paralegal. thus, the court effectively recognised the importance of the paraprofession and the role that a paralegal plays in the delivery of legal services by describing many of the tasks undertaken by them. the judgement also approved the recovery of fees for paralegal services. flowing from the above cited authorities, the role/duties of a paralegal include: a) conduct client interviews and maintain general contact with the client. b) locate and interview witnesses. c) conduct investigation and documentary research. d) carry out legal research e) draft legal documents, correspondence and pleadings. f) summarise depositions, interrogatories and depositions. g) attend execution of wills, deposition taking, court or administrative hearings and trials with the attorney. 4. importance of paralegals in the legal system 1. increased access to justice: paralegals bridge the gap between lawyers and citizens, especially those who cannot afford legal representation. their services ensure that individuals receive necessary legal assistance and have their voices heard in court. 14 (1997) 673 ne 2d 1307 <www.casetext.com> accessed 16 august 2024 15 (1980) 275 sc 400 <www.casetext.com> accessed 16 august 2024 16 (1989) 491 us 274 <www.casetext.com> accessed 16 august 2024 african customary and religious law review (acarelar) 5 (2024) 65 | p a g e 2. cost-effective legal services: paralegals provide cost-effective legal services, making legal assistance more affordable for clients. by handling routine tasks, they allow lawyers to focus on complex legal matters, reducing overall legal fees. 3. efficient judicial system: paralegals contribute to the efficient functioning of the judicial system in nigeria. their valuable support in document preparation, case management, and research, ensures smooth and timely legal proceedings. 4. increased legal awareness: paralegals play a role in promoting legal awareness among the general public. by providing basic legal information and guidance, they empower individuals to understand their rights and make informed decisions. 5. enhancing advocacy efforts: paralegals assist lawyers and legal organizations in their advocacy efforts by conducting research, preparing reports, and staying updated on =relevant legal developments. they contribute to the advancement of legal rights and justice in nigeria. thus, paralegals play a vital role in promoting affordable legal services, efficiency in the judicial system, legal awareness, and advocacy efforts. 5. what is legal technology? whalen17 describes legal technology as “all devices capable of being used as a means for interacting with the substance of the law or assisting its user to interact with the law, and the skills and techniques by which we use them.” flowing therefrom, legal technology can be viewed from two perspectives. it can refer to the devices used in aiding interaction with the law as well as the skillset or methodology involved in the use of these devices. legal technology is simply the use of technology and innovations in a way that enhances the legal system.18 it means utilizing technology to enhance and simplify legal services. it encompasses two fundamental categories – hardware and software, both of which are essential to the successful operation of law firms. the hardware refers to the physical equipment necessary to utilize legal technology including computers, printers, photocopiers, and scanners. in selecting a suitable hardware, factors such as processing power, storage capacity, connectivity options, and security issues are very crucial.19 the legal software plays a very pivotal role in transforming the management of law firms, their operations and delivery of legal services. practice management software, document management systems, and legal research platforms are examples of legal software applications that streamline tasks, automate processes, and enhance collaboration within law firms.20 legal technology is versatile and can be used by law firms and legal departments to automate repetitive tasks, manage documents effectively, improve research capabilities, and streamline legal workflows, thus, minimise mistakes, save time, and enhance client satisfaction. accordingly, choosing a reliable and secure legal technology that aligns with the firm’s needs and workflow is essential. it ensures smooth operation, enhances productivity, and protect sensitive client data. by building a robust and integrated technological infrastructure, law firms can empower their legal team to work effectively, collaborate and provide exceptional legal services to their clients. 6. the origin of the paralegal profession in the legal industry: perspectives from the united states, united kingdom and nigeria perspectives from the united states the roots of the paralegal profession can be traced back to the united states of america in the mid 1960’s, after the world war ii. the aftermath of the world war ii led to a fee hike in the cost of securing legal services or legal representation. thus, only the affluent could afford the high cost of legal services. as a response to this imbalance, the american government established the legal service corporation to provide funding for legal services to indigents pursuing justice. simultaneously, low cost legal clinics started cropping up and prepaid legal service plans were formulated. the american bar took the initiative to rethink the traditional model of rendering legal services as well as its management, to make justice easily accessible to all and sundry.21 to ensure that justice was within everyone’s reach, and without sacrificing quality, “increased automation” of legal service delivery, “better management” and the “use of legal assistants or paralegals” by attorneys were put in place to: reduce workload on attorneys when providing legal services; bring down the high fee for providing legal services; and consequently, make access to justice easy and seamless for lowand middle-class citizens. by the late 1960s and early 1970s, the use of legal assistants or paralegals by attorneys nationally in america had risen significantly. in 1967, the american bar association (aba) endorsed the concept of a paralegal profession and established its first committee on legal 17 whalen, r., ‘defining legal technology and its implications’ (2022) 30(1) international journal of law and information technology 47,67 18atoyebi, o ‘legal technology as a catalyst for the development of the nigerian legal regime’ (2023) <https://www.lawpavillion.com> accessed 10 september 2024 19 sparrow, r., ‘what is legal technology for law firms’ (2024) <https://www.theaccessgroup.com> accessed 10 september 2024 20 ibid. 21 wikipedia, ‘paralegal’ <https://www.en.m.wikipedia.org> accessed 20 august 2024 thomas: impact of legal technology on the role performance of paralegals in the nigeria legal environment 66 | p a g e assistants in 1968 which metamorphosed into a standing committee of the aba.22 in 1974, the aba adopted guidelines for the paralegal education curriculum and began approving paralegal programs under those guidelines in 1975. the mid – 1970’s also witnessed the rising of professional paralegal associations in america, such as the national federation of paralegal associations (nfpa) which was the first paralegal association was formed in 1974. in 2021, the association was renamed, the “national association for legal support professionals”. 23 in 1975, the government of the united states of america recognized the existence of paralegals as a profession and created a new job classification for it within its workforce. states, counties and cities followed suit. like the legal practitioners, the modern paralegals also have specialties in different areas of the law, for example, corporate law paralegal, litigation paralegal, criminal law paralegal, and so forth. perspective from the united kingdom in the united kingdom, it took a longer time to get the paralegal profession standardized. in 1987 –the paralegal association, later renamed, the national association of licensed paralegals was established. in 1988, the association, adopted standards for and the general overseeing of the profession. the institute of paralegals (iop) is also another professional body that oversees the affairs of paralegals in the united kingdom. there are also accredited training centres and schools in the united kingdom engaged in the training of persons willing to become certified and licensed paralegals as the profession continues to grow. perspective from nigeria unlike other jurisdictions, such as, the united states, united kingdom, canada, south africa and so forth, where the paralegal profession is firmly standardized, in nigeria, the profession is yet to be standardized. whereas some law firms in nigeria specifically and exclusively retain a paralegal professional with the appellation “paralegal”, many others do not. it is not uncommon to find a litigation paralegal in smaller law firms performing the dual responsibility of a litigation officer and a legal secretary, as they are collectively referred to as support staff. paralegals are also found within the court system and they perform the role of legal or judicial assistants, court registrars, court clerks, bailiffs/sheriffs etc.24 some reputable institutions offer paralegal programs in nigeria, such as; the nigerian institute of advanced legal studies (nials), university of lagos (unilag), kaduna state polytechnic, akwa ibom state polytechnic, chartered institute of legal executives (cilex), and institute of paralegal services (iops). 7. the legal framework for the licensing of paralegals in nigeria in principle, paralegals are recognised under the legal aid act, 2011. the act makes provisions for the licensing of paralegal service providers by the legal aid council (the council) of nigeria. the act provides that the council may grant licenses to persons who have undergone a prescribed course in paralegal services to render such services in appropriate situations.25 the council classifies paralegals into two categories in terms of the scope of work they do – paralegals who are attached to lawyers and perform delegated duties, and community paralegals who perform first aid legal services for communities. by section 23 (4) of the act, the council is vested with the responsibility to make regulations for the conduct of “paralegal aid provision.” in the act, a paralegal is defined as “as any person although not admitted to the practice of law in nigeria, performs “substantially legal tasks” under the discretion and supervision of a legal practitioner”.26 8. some legal technological tools employed by paralegals in the legal industry in the practice of law in the 21st century and their benefits in time past, legal research used to require long hours in law libraries. the introduction of basic office technology like type writers and dictaphones revolutionalized legal practice in the 20th century. the advent of personal computers and word processors further increased productivity. in recent times, software technologies like, law pavilion, lexisnexis, casetext, provide instant access to a vast array of legal resources. these technologies are indispensable in facilitating thorough and efficient legal service. the ability to speedily and easily wade through case laws, statutes, legal journals and other vital legal documents significantly reduces time and effort required for comprehensive legal research. efficiently gathering and analysing legal information, allows paralegals to prepare better legal arguments and support attorneys more effectively, ultimately contributing to favourable outcomes for clients. some of the legal technologies27 that help paralegals discharge their duties and obligations more effectively, include: 22 the name of the committee was later changed to the standing committee on paralegals in 2003 in recognition of the growing preference for the title “paralegal” among law firms and lawyers. 23 hammed, y. a., ‘origin of the modern paralegal’ (2023) <https://www.spaajibade.com> accessed 1 september 2024 24ibid 25 legal aid act 2011, s 17(3). 26 legal aid act 2011, s 24 (1). 27 arrotta, m., ‘a guide to legal technology for paralegals’ (2024) <www.clio.com> accessed 1 september 2024 african customary and religious law review (acarelar) 5 (2024) 67 | p a g e document management systems (dms): document management systems like cloud computing, netdocuments, imanage, have transformed the way legal documents are stored, retrieved and managed. they ensure documents are secure, easily accessible and efficiently organized to facilitate quick retrieval. this system allows for seamless collaboration among legal teams, as multiple users can access and work on the same documents simultaneously. these systems protect sensitive client information, reducing the risk of data breaches. implementing a dms helps paralegals streamline a law firm’s workflow, reduce administrative overhead and ultimately provide better client service. practice management software (pms): a legal software such as clio, helps in managing client relationships, scheduling and billing, which improves overall efficiency and achieves client satisfaction. this legal technology, offers a centralized location to manage case information, track time and expenses and maintain client communication records. integrated calendaring features ensure that deadlines and court dates are never missed. artificial intelligence (ai): artificial intelligence tools like ross intelligence, ai meta, etc., aid in legal research by providing more accurate results of search subjects based on machine learning algorithms. predictive coding and other ai applications help in reviewing large volumes of documents more effectively. by automating routine tasks such as contract analysis, legal document review, and even some form of legal drafting, ai can save enormous amount of time. also, the predictive capabilities of ai can also assist in case outcome analysis, allowing for more informed decision-making and helping legal professionals strategize more effectively. remote collaboration tools: technologies such as microsoft teams, amazon chime, amazon workdocs and videoconferencing apps like zoom, file sharing, cross-channel messaging and unified workspace software, have become essential for ensuring seamless communication and collaboration among legal teams. these platforms enable effective communication and productivity among a dispersed team of employees, wherever they are to achieve a common goal, thus, enhancing enterprise collaboration, increasing productivity and eliminating management hassles. benefits of legal technologies for paralegals: some of the benefits of legal technologies for paralegals include: improved efficiency: legal technology tools reduce time spent on routine tasks like document drafting, streamline administrative processes and also minimize the risk of errors that occur with manual handling, thereby allowing paralegals focus on more complex tasks. by leveraging these tools, paralegals can manage larger caseloads more effectively, contributing to the overall productivity of the legal team which translates to faster case resolutions, optimal and satisfactory client service. enhanced accuracy: technological tools such as artificial intelligence (ai), practice management software etc., minimize human error, ensuring greater precision in legal research and document review. ai tools can cross-check information, verify data, and ensure that all relevant legal citations are included, thereby reducing the risk of oversight. cost-effectiveness: by minimizing the time paralegals and other legal professional spend on repetitive tasks, legal technology enables firms to reduce billable hours for administrative work. this allows for more competitive pricing and delivers higher value to clients. also, technology reduces the need for physical storage space and paper-based processes, leading to savings on office supplies and storage. investment in legal technology, also enables firms to operate with leaner teams while maintaining high levels of productivity. better client service: operating with legal technologies frees up paralegals from time-consuming tasks, allowing them to focus on personalized client service, detailed case management, and timely client communication. by improving the overall efficiency and quality of legal services, technology helps build stronger client relationship.28 9. the challenges of adapting to new legal technologies by paralegals embracing legal technology is not without its challenges. learning new systems and adapting to digital tools can be daunting, especially for those accustomed to traditional methods. the following are some of the challenges faced by paralegals in adapting to new legal technologies; lack of training/ professional development: many paralegals lack adequate training in the use of legal technologies, which can lead to inefficiencies and errors. paralegals must continuously learn and adapt to legal technologies, and stay current on legal trends. by staying up-to-date with new and existing legal technology, paralegals can remain competitive and provide more valuable services to their employers. law firms can support 28steele, a., paralegals and technology: adapting to new tools in the legal field, (may 30, 2024) <https://www.linkedin. com> accessed 4 september, 2024 thomas: impact of legal technology on the role performance of paralegals in the nigeria legal environment 68 | p a g e their paralegals by offering training and development opportunities, encouraging continuing education, and providing access to legal technology resources. data privacy/information security concerns: the use of legal technology such as videoconferencing, e-mailing, e-service of documents, raises data privacy/information security concerns. the technological systems supporting these processes such as e-service platform and emails may be subject to cyber-attacks, such as hacking. in such cases, unauthorized persons may access the system and engage in unwarranted practices such as stealing of information, deleting information or sending unwanted information to the detriment of some parties. thus, ensuring the security and confidentiality of sensitive information is a challenge. paralegals must thereto, be knowledgeable about cyber security best practices and be able to identify and prevent potential security breaches.29 costs: the costs associated with the use (acquiring and maintaining) of legal technology could result in a large majority of the population being unable to access and afford the justice system. the use of legal technology relies on devices such as computers, laptops, smartphones and internet connectivity that may be out of reach for poor citizens, too expensive for some law firms to afford for their paralegal and sometimes, the network connectivity might be unstable. however, the upfront cost of acquiring legal technology may fade away in the long-term.30 as research shows that firms that have implemented legal technology have seen an increase in productivity, a reduction in administrative tasks, and an overall improvement in their bottom line.31 it is thus important to take into account such concerns in the move towards embracing legal technology in order to ensure that the right of access to justice for all is upheld.32 ethical considerations for paralegals: with the use of legal technology and the rise of remote work and collaborations, paralegals must be mindful of ethical guidelines and maintain professional standards when working with clients and other legal professionals. for example, a paralegal should not pass off himself as a legal practitioner to a client, no matter the circumstance.33 malware and viruses: with the use of technology, malware and viruses can corrupt or damage electronic files, leading to loss of important legal documents, which can be very detrimental to the law firm and client. paralegals must thereto, be knowledgeable about malware and virus threats and be proactive to identify and prevent potential harm, for example, how to use an antivirus program to scan a computer.34 10. the impact of legal technology for paralegals’ role performance in the legal industry the rise of legal technology has particular implications for paralegals especially in shifting the role performance of paralegals from administrative tasks to more strategic roles.35automated legal research tools can sift through thousands of documents, highlighting relevant information in a fraction of the time it would take a paralegal to manually review. this legal technological efficiency allows paralegals to focus on analysing the data, interpreting the findings, and building strong cases. furthermore, case management systems streamline the workflow, improving collaboration among legal teams and providing real-time updates about case progress. this means, paralegals can manage their time more effectively, aligning their efforts with the most pressing tasks and deadlines. also, the implementation of legal technology facilitates better communication and collaboration between paralegals, legal practitioners, and clients, leading to a more streamlined and transparent legal process, and overall satisfaction. paralegals who master legal technologies, can distinguish themselves within their firms and the legal industry, demonstrating their adaptability and commitment to innovation. furthermore, a profound understanding of legal technology can open doors to specialized roles within law firms, such as legal project managers. therefore, the future of paralegal work is not defined merely by the ability to adapt to these digital tools but by the ability to leverage them effectively, strategically, and innovatively.36 29 muigua, k., ‘challenges and concerns with the use of technology in the legal profession’ (2022) < challenges and concerns with the use of technology in the legal profession – the lawyer africa> accessed 8 september, 2024. 30 many platforms provide a significant return on investments ranging from cost savings to increased productivity. the tools also helps the firm work more efficiently which will result in significant savings in the long run. 31 kluwer, w., ‘legal technology – increasing value for the clients’ <www.wolterskluwer.com> accessed 15 september 2024 32 bhaskar, n., ‘is the price of innovation worth it? demystifying the cost of legal tech for law firms (2024) <www.linkedin.com> accessed 15 september, 2024 33pahwa, a. the paralegal profession in the digital age: opportunities and challenges, (june 1, 2023) < the paralegal profession in the digital age: opportunities and challenges (linkedin.com)> accessed 8/9/2024 34 mcafee, ‘what is malware?’ <www.mcafee.com> accessed 15 september 2024 35 career naija, the impact of technology on paralegal work in nigeria (january 26, 2024), < the impact of technology on paralegal work in nigeria (professions.ng)> accessed 8 september, 2024. 36 szalay, h., legal tech: shaping the future of paralegal work, (july 21, 2023) < legal tech: shaping the future of paralegal work (linkedin.com)> accessed 7 september, 2024 african customary and religious law review (acarelar) 5 (2024) 69 | p a g e 11. conclusion and recommendations in conclusion, it is crystal that a paralegal plays an integral role in the pursuit and dispensation of justice. embracing legal technology is not without its challenges. learning new systems and adapting to digital tools can be daunting; however, these challenges bring new opportunities for growth and advancement within the paralegal profession. paralegals who master legal technological tools can hone their skills and distinguish themselves within their firms and the legal system, demonstrating their adaptability and commitment to innovation. furthermore, a profound understanding of legal technology can open doors to specialized roles within law firms, such as legal technology consultants or legal project managers. thus, by embracing legal technological advancements and developing relevant digital skills, paralegals are not only securing their future but actively shaping it. by harnessing technology, paralegals are transitioning into tomorrow's legal technology experts, defining the new normal in the legal profession and pioneering a more efficient and effective approach to legal work. the researcher therefore recommends the following: there is need for adequate training/continuing legal training of legal professionals, and particularly, paralegal staff to fully harness the benefits proffered by legal technology in the legal practice. to mitigate data privacy concerns, stakeholders in the legal industry must ensure that they put in place, robust measures for data protection in line with the nigerian data protection act 2023 and other relevant instruments, especially in dealings with clients, third party technology vendors, etc. the awareness and importance of legal technology in the legal industry must be canvassed intensively. african customary and religious law review (acarelar) 4 (2023) 70 child adoption in anambra state of nigeria and the perception in some other jurisdictions* abstract child adoption in nigeria generally, has been officially recognized by virtue of its inclusion in the child’s right act, 2003 and the child’s right law of states respectively, but its acceptability and practicability become another hurdle. people in urban areas tend to adopt with ease than those in rural areas where the requisite knowledge and information in most cases are not imbibed. adoption of children is an alternative means of acquiring children, this is because it gives childless couples children just the same way as biological parents, thereby curbing childlessness if both parties to it agree. at the same time providing comfortable home and care for the adopted child. this study seeks to revenue adoption in anambra state of nigeria, then takes a look at how it is been perceived by other jurisdictions, whilst considering the laws and its acceptability in nigeria. it is recommended that workshops should be organised, especially within most rural areas to sensitize the rural people about the legality of adoption so as to enhance the acceptability of child adoption in anambra state of nigeria. it is hoped that this measure and others will encourage child adoption on the part of intending adopters and boost the self confidence of the couples, as well as the adopted child. keywords: child adoption, perception and acceptance, legal system jurisdiction, nigeria 1. introduction since 400ad, adoption has been in practice one way or the other among orphans.the romans formed their first orphanages around 400 ad. jewish law prescribed care for the widow and the orphan, and athenian law supported all orphans of those killed in military service until the age of eighteen1. plato laws, 927) says: ‘orphans should be placed under the care of public guardians. men should have fear of the loneliness of orphans and of the souls of their departed parents. a man should love the unfortunate orphan of whom he is guardian as if he were his own child. he should be as careful and as diligent in the management of the orphan's property as of his own or even more careful still.2 .the care of orphans was referred to bishops and, during the middle ages, to monasteries. as soon as they were old enough, children were often given as apprentices to households to ensure their support and to learn an occupation. in recent times, the healthiest living condition for a child is obviously with a family who will love and nurture as well as provide food, shelter and clothing that will ensure the child’s survival. unfortunately, this is not the reality for many of the world’s children. today’s international orphans usually have parents but they have abandoned them or their parental rights have been terminated. orphanages are part of every societal culture. how good or how bad an orphanage is depends on the particular country outlook on abandoned children and obviously the financial situation of these countries. most children whose parents’ rights are terminated are adopted within 13 months.3 however, since numbers of adoptions have not kept pace with numbers of terminations each year, more and more children are left in legal limbo destined to live life as ‘legal orphans’(children without legal parents).4 consequently adoption has been made a government affair in nigeria and the processes differ from state to state. the different and varying ministries of women affairs of various states of nigeria control, regulate and supervise adoption. in anambra state, which is one of the states in the south eastern nigeria, orphanages are commonly known as community children’s home. according to section 1895 the state government shall see to the establishment of a community home which entails the care and accommodation of children looked after by it. section 189(4)(5)6distinguished the different types of homes, which are the controlled and assisted home. a controlled home emanates where the state government is responsible for the management of the community home provided usually by a voluntary organization, while an assisted home emanates where the voluntary organization is *by mary imelda obianuju nwogu, phd, fcarb, faculty of law, nnamdi azikiwe university, awka, anambra state, nigeria. e-mail: ujn3333@yahoo.com *ifeyinwa janefrances mba, llm candidate, faculty of law, nnamdi azikiwe university, awka, anambra state, nigeria. e-mail: janefrancesmba@gmail.com 1 c.g herbermann, e a pace, c b pallen, t tshaheen, and j j wynne ‘the catholic encyclopedia, volume xi’.encyclopedia press inc 1913, new york. 2c.g herbermann, e a pace, c b pallen, t tshaheen, and j j wynne ‘the catholic encyclopedia, volume xi’.encyclopedia press inc 1913, new york. 3the afcars report #20. the mean time elapsed from termination of parental rights to adoption is 13.1 months. the median is 9.2 months. 4 . ‘juvenile courts, etc.’ § 63, american jurispudence 2d (2008). 5 childs right law of anambra state 2006 6 ibid https://en.wikipedia.org/wiki/halakha https://en.wikipedia.org/wiki/history_of_athens https://en.wikipedia.org/wiki/military_service https://en.wikipedia.org/wiki/age_of_majority https://en.wikipedia.org/wiki/laws_(dialogue) https://en.wikipedia.org/wiki/middle_ages https://en.wikipedia.org/wiki/middle_ages https://en.wikipedia.org/wiki/monastery https://en.wikipedia.org/wiki/apprenticeship mailto:ujn3333@yahoo.com http://www.newadvent.org/cathen/11322b.htm http://www.newadvent.org/cathen/11322b.htm http://www.newadvent.org/cathen/11322b.htm http://www.newadvent.org/cathen/11322b.htm nwogu & mba: child adoption in anambra state of nigeria and the perception in some other jurisdictions 71 responsible for the management of the community home provided by the voluntary organization. section 1907 further stipulates that the commissioner has the right to discontinue the use of any community home found unsuitable. we had the opportunity of meeting the desk officer in the ministry of women and child welfare anambra state, who provided us with the practicable requirements for a standard orphanage to include thus; neatness of the environment and home, it must have been registered with the corporate affairs commission (cac), and the building structure should be standard. 2. concept of child adoption the free legal dictionary defines adoption as ‘a two-step judicial process in conformance to state statutory provisions in which the legal obligations and rights of a child towards the biological parents are terminated and new rights are created between the child and the adoptive parents’’8.it has also been further defined as an order vesting the parental rights and duties relating to a child in the adopters made on their application by an authorized party’.9 child adoption is a universal concept that provides legal rights for adopter and adoptee to become a family. an adopted child is a child in respect of which an adoption order has been made 10.adoption is effected by a court order which vests parental responsibility for a child in the adopter(s) and extinguishes the parental responsibility of the birth parent.11 the effect of an adoption order is that the child is treated as if he or she is born as a child of the marriage of the adopter(s) and not as the child of anyone else, and is prevented from being illegitimate12.it is a unique form of child care because it does provide permanent care and parenting for the adopted child as compared to other child care institutions that provide substitute family/home to a child13,in our own view, child adoption is a legal procedure that permits a child born to a person, or people to become in legal terms the son or daughter of another. there are two basic forms of adoption in nigeria. these are customary and statutory adoption. customary adoption may be formal or informal.14the purpose of formal adoption is to formally transfer the parents’ rights and duties of the child to the person seeking to adopt the child, which is a crucial aspect of the adoption. upon such transfer, the adopter then publicly declares his intention to regard the child in question as his own. in akinwande v. dogbo15 x took the child of his deceased sister into his household and the child lived there over a long period of time. during this time, x was responsible for the child’s maintenance and upbringing. thompson, j. held that the child was adopted by x under customary law, this decision brings out the defects of customary law adoption. for instance x‘s responsibility for the maintenance and upbringing of the child is capable of several interpretations including evidence of guardianship or adoption. on the other hand, an informal adoption is not characterized by any formalities. it occurs upon the person seeking to adopt the child, usually the child of a relation, into his own family and treats the child as his own16. statutory adoption is the formal and legal type of adoption governed by the provisions of the statutes i.e., written laws. such laws usually provide for the qualifications of persons eligible to adopt and be adopted, conditions for adoption, consents required before adoption, procedures to be followed in adoption matters and the legal effects in adoption. notably, statutory adoption permanently extinguishes all the rights, liabilities and duties of parents in relation to the child, while customary adoption does not permanently severe the legal relationship between the child and its natural parents.17 rather the relationship between the child and the parents remains intact. there are different types of adoption amongst the igbos which includes anambra state of nigeria and they are domestic adoption, foster-care adoption, open adoption and close adoption.18 7 ibid 8the free legal dictionary, ‘definition of adoption’ (2005) www.legaldictionary.the freedictionary.com/adoption(accessed)25 january 2021. 9 ibid 10sheila bone law dictionary byosborns concise ,9th edition, page 19 11section 12(1) of the adoption act,1976 12ibiam v ibiam&anor (2017) lpelr-42028(ca) 13aniebue, p.n, &aniebue, u.u. (2008). adoption practices in enugu, nigeria. nigerian journal of clinical practice, 11(1), 5-8. 14a.c. osondu, modern nigerian family law &practice. lagos, printable publishing company,2012, p.257 15(1974)8 nig.l.j 134 16a. c, osondu modern nigerian family law & practice. lagos, 2012, p. 257. 17ibid.p258 18oluwatosin o. ogwezzy, op cit. pp. 59. igbo culture and socialization, (uzoma onyebuchi, university of michigan, ann arbor); inwww.kwenu.com, igbo people, a free wikipedia encyclopedia; inwww.wikipedia.com http://www.legaldictionary.the/ african customary and religious law review (acarelar) 4 (2023) 72 domestic adoption: domestic adoption is the adoption of a child who resides in the vicinity or country. for instance, adopting a child who resides in the area where the adoptee parents also lives. foster-care adoption: foster-care adoption is the adoption of children in state care whose reunification with their parents is not possible for their safety. children whose safety is not guaranteed by their parents are kept in foster homes so that they will not be hurt by their parents. usually, people can go and adopt such children to help them. open adoption: in this type of adoption, there is free flow of information between the biological parents and the adoptee’s parents. close adoption: is the type of adoption that prevents all identifying information from being shown between the adoptive parents and the adoptee. generally, in anambra state close adoption is the type of adoption that is legal. this is because the adopter parents do the necessary paper work which must be in line with the legal procedures. the adopter parents will have no knowledge of the biological parents and the biological parents will not also have any knowledge of the adopter parents. this arrangement is to avoid the biological parents from coming to claim paternity of the adopted child later in life. meanwhile, the expensive nature of this type of adoption makes it unpopular for the middle class and the poor in the society.19 3. acceptability of child adoption in anambra state due to the effect of globalization, economic instability, poverty, limited resources, there has over the years been increase in the number of juveniles in need of adoption in nigeria. there also exist those that may as a result of the necessity to get a companion for an only child, stabilize a marital union, replace a late child or sustain a specific line of descent, need a child for adoption. the method of adoption in nigeria is thus one that permits for people or couples who would rather be without a child to assume parentage over a child who might either be of known or unknown origin, while at an equivalent time, presenting the adopted child the chance of a secured, loving home throughout childhood and beyond. in the adoption law of anambra state, a parent adopts and integrates a child adopted into his/her family, and the child is entitled to all the rights, privileges and obligations in the estate of the adaptor, including right to inherit or share in inheritance of the adopting parent. the traditional/customary law of the igbos in the south eastern nigeria which includes anambra state acknowledges this practice of accepting a child of an unmarried daughter as one of the members of the family of the father of the mother. however, this practice appears to be accepted all over nigeria and it accords with our national constitution which abhors discrimination of a child or citizen of nigeria because of the circumstance of his birth. in igbozuruike v. onuador20 the court held: thus; the 1999 constitution of the federal republic of nigeria must have had the likes of the plaintiff appellant in contemplation, when it enacted in section 42 (1) (a) and (2) as follows: (1) (a) citizen of nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person (a) be subjected either expressly by or in the practical application of any law... to disabilities or restriction to which citizens of nigeria of other communities ethnic groups, places of origin, circumstances of birth, sex, religious or political opinions are not made subject, or (b)…(2) no citizen of nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.21 the court in alake v. pratt22; bamgbose v daniel23’ opines that where the child is adopted or ‘acknowledged’ by the parent, the same is entitled to share in the estate. 4. legal implications of child adoption in nigeria nigerian did not until 1965 enact any provisions as regards adoption. this lacuna in most cases usually resulted in legal conundrums because when couples took children into their household with the understanding that they were being adopted, such arrangement could not be regarded as legal adoption as the biological parents of the supposedly adopted child could still take legal actions to assert their natural rights over the child. however, since the enactment of the eastern adoption law of 1965 and the subsequent enactment of the adoption law of anambra state 1991 and the child’s right act 2003, legal provisions have been made as regards adoption and 19 uzoma onyebuchi, igbo culture and socialization, (university of michigan, ann arbor); inwww.kwenu.com, igbo people , a free wikipedia encyclopedia; inwww.wikipedia.com 20 (2015) lpelr 25530 (ca 21duru v duru (2016) lpelr-ca/ow/306/2013 22 15 waca 20 23 14 waca 116 nwogu & mba: child adoption in anambra state of nigeria and the perception in some other jurisdictions 73 its consequent implications in nigeria. drawing directly from the provision of part xiii of the child rights act 2003, the following are the implications of adoption in nigerian: total transfer of rights to the adopting parents adoption implies that the adopting parents shall acquire all rights concerning the adopted child and can now make unrestricted decisions concerning the life of the child. this would also imply that the natural parents of the child shall forfeit all their rights as regards such a child and cannot in future proceed to claim any such rights under the law. examples of the rights acquired by the adopting parents over the child after adoption includes religious rights, right to appoint a guardian and the right to consent or give notice of dissent to marriage. section 14524 right to inherit from the adopting parents adoption confers on the adopted child a right to inherit the property of the adopter in the instance of his\her intestacy25; or for the purpose of the devolution of the property on the intestacy of the adopter, an adopted child shall be treated as a child born to the adopter. it is pertinent at this point to note that this same rule also will apply, except explicitly stated otherwise, with regards to relatives of the adopted child. thus, a reference to the brother of the adopted child would be construed as a reference to the person who would be related to him in that degree if he were the natural child of the adopter and not the child of another person.26 assumption of parental duties and obligations the process of adoption also sees a complete transfer of all duties, obligations and liabilities under personal law, applicable to the natural parents of the child. this would also translate to mean that all duties in relation to maintenance, supervision and education of the child would now be performed by the adopting parents, we shall now begin to act as if they were the natural parents of the adopted child. invalid marriage it bears no need for repetition that after adoption, legal relationship, just like that between natural parents and the child is established pursuant to this by virtue of the provisions of section 147(1),27 marriage between the adopter and the adopted child is prohibited. also, marriage between the natural child of the person who adopted the child and the adopted child is deemed null and void. section 147(2) of the child’s right act 2003, provides for punishment of imprisonment for a term not exceeding fourteen (14) years for anyone who in contravention of the above provision marries an adopted child. 5. perception in some other jurisdictions child adoption practices in united kingdom as in other developed jurisdictions, in england for instance, an adoption order results in the adopter(s) and the adopted child assuming the same legal relationship. you do not have to be a british citizen to adopt a child, but: you (or your partner, if you are a couple) must have a fixed and permanent home in the uk, channel islands or the isle of man. the said couple must have lived in the uk for at least 1 year before they begin the application process. if they are approved as suitable to adopt a child by a uk adoption agency, they will be guided through the following steps. i. application will be sent to the department for education (dfe) or relevant uk central authority to check if it meets eligibility criteria. ii. dfe or the relevant uk central authority will issue a certificate of eligibility to adopt and send it with your adoption application to the relevant overseas authority – some countries require adoption applications and supporting documentation to be notarized, legalized and translated. iii. once matched, there is need to visit the child in their own country the said visited in writing and the intention to proceed with the adoption. iv. there is need to go through adoption court processes in the country one is adopting from and the uk. once the placement has been finalized, you will need to arrange entry clearance for the child 24 childs right act 2003 25aduba & ors v. aduba (23q2018) lpelr-ca/ow/90/2012 26 s 141(3) of the child’s right act 2003 27 child’s right act 2003 https://www.hcch.net/en/states/authorities/details3/?aid=229 https://www.hcch.net/en/states/authorities/details3/?aid=229 african customary and religious law review (acarelar) 4 (2023) 74 to enter the uk.28 the dfe charges a non-refundable fee of £1,975 for processing an application to adopt a child from overseas. the fee is exempt from vat. v. the fee is paid once the application is accepted. the fee includes case management but does not include legalization, notarization or translation costs. child adoption practices in india: adoption under hindu law the old hindu law saw post-independence reforms and one of them was in the form of the 1956 hindu adoptions and maintenance act (hereinafter referred to as hama) codified adoption legislation. it enabled anyone who falls within the definition of the term ‘hindu’ as described in section 2 of hama29 to be eligible for adoption for a kid. there have been numerous gradual changes brought about by this new codified law, such as adoption by hindu women, eligibility for adoption by girls, etc. the shastric hindu law looked at adoption as more sacramental than secular act. some judges think that time object of adoption is twofold: (1) to secure one’s performance of one’s funeral rites and (2) to preserve the continuance of one’s lineage. hindus believed that one who died without having a son would go to hell and it was only a son who could save the father from going to poota. this was one of the reasons to beget a son. currently, the adoption under hindu is governed by the hindu adoption and maintenance act. 1956.30 hama offers for the adoption of hindu kids by hindu parents. this does not apply to other groups such as muslims, christians and parsis. in india, now several changes to the law regarding adoption have been made under the hindu adoption and maintenance act, 1956. the most important changes that this act brought was that it reduced the aim of adoption to secular only and also gave women equal rights to men i.e. now, under this act both boys and girls may be adopted31.adoption is a noble cause that gives joy to children who have been abandoned or orphaned. this provides an opportunity to shine through the human side of civilization. it is a beneficial program where the child is treated as the natural born child and given all the love, care and attention. at the same time, it fills the void in the parents who yearned for children, their laughter and mischief echoing off the walls of a home. in the words of nicole schellenger,32even though few changes could be made to make the laws regarding adoption a little uniform, the existing laws cannot be regarded as not having any positive impact, rather it is time to fill the lacunae with the evolving times and providing uniform law to bring about equal status and equal rights for all. there has been need for a uniform civil code, as the personal laws of all religions have become static and cannot alter at the same rate as the society. the kids of the nation are significantly supreme assets. their nurturing and solitude are nation’s obligations. children’s programs should play a prominent role in domestic human resource development plans to enable kids to grow up to become good citizens; physically fit, mentally alert and morally healthy with the abilities and motivation that society needs. the objective is to provide all kids with equal opportunities for growth, as this will serve bigger aims to reduce inequality and increase social justice.’if there is a cause worth fighting for, it is this: children belong in families’33 the discussion shows that law provides a status to the adopted child as well as the adoptive family. communities other than the hindus do not have a foolproof mechanism of governing adoptions at par with the hindus. there is no prohibition of adoption in the religious laws of parsis, christian, etc., even though none of these communities have personal law of adoption or statutory law to that effect. it will be thus custom which governs adoption in their case. adoption is a noble cause, which brings happiness to kids, who were abandoned, or orphaned. this gives a chance for the humane side of civilization to shine through. it’s a beneficial program where the child is treated as the natural born child and given all the love, care and attention. adoption is the creation of a new, permanent relationship between an adoptive parent and child. once this happens, there is no legal difference between a child who is adopted and a child who is born into a family. adoption once validly made is final and cannot be revoked. the adopted child could not renounce the adoption. the law has further made an express prohibition against the payment of money or other reward in consideration of adoption. 28https://www.gov.uk/child-adoption/adopting-a-child-from-overseas 29hindu adoption and maintenance (amendment) act 2010 30docs.manupatra.in (2019),http://docs.manupatra.in/newsline/articles/upload/e8efe493-114b-4e5b-a014 682eb1729301.pdf (last visited aug 30, 2019). 31child adoption in india – issues and challenges, 120 international journal of pure and applied mathematics (2019), https://acadpubl.eu/hub/2018-120-5/4/358.pdf (last visited aug 31, 2019). 32 nicole schellenger, a former executive director of an intercounty adoption agency, she is considered an authority in adoption agency compliance matters, http://www.foxrothschild.com/nicole schellenger. 33 nicole schellenger op cit. nwogu & mba: child adoption in anambra state of nigeria and the perception in some other jurisdictions 75 child adoption among african countries (south africa and ghana) child adoption in south africa34 like any other societies, african societies have rules and regulations that govern their daily lives. these rules and regulations are intended to ensure both posterity and continuity in community life and customs. families form the basis of society and each family is designed and fashioned by its members including, most importantly, the husband and wife. in african societies the husband and wife form part of a greater relationship/kinship35 that affects its members. procreation is, and has always been central to african society. it is believed that through reproduction the family line is preserved. however, other forms of preserving the family line are promoted, and these include adoption36. the word ‘adoption’ is not defined in any south african statute. however, it has been described as a process by which a person assumes a parenting role over another, usually a child, from that person’s biological or legal parent or parents; in so doing, the adopter permanently assumes all the rights and responsibilities of a parent37. the process entails a person or persons taking over the rights and responsibilities of the natural parent of a child. it is a legal act that creates a legal relationship between a parent and a child38. once the adoption process has been finalized, all the rights and responsibilities of the biological parents cease. equally, an adopted child loses all legal ties with their birth parents and becomes a legal member of the adoptive family, usually taking the family’s name. this process should be differentiated from the concept of fosterparenting. foster-parenting is a temporary arrangement in terms of which a child is placed in the care of another person without the rights and responsibilities of parenthood being transferred permanently to such a person39. adoption under the children’s act 38 of 200540 the children’s act outlines adoption procedures and processes in south africa. the act regulates issues relating to consent to adopt41, procedures relating to the adoption of children born out of wedlock42, exclusions regarding consent, and the issue of who is eligible to adopt a child43. among those who are permitted to adopt a child are married couples, partners in a life-partnership (including same-sex partners), a person who has married the natural parent of a child, or a single person (a widow or widower or an unmarried or divorced person) with the consent of the minister44. section 18 of the act further requires that the adoption of a child shall be effected by a court order. this invariably means that an adoption that has not been endorsed as prescribed is not recognized as such. the children’s act also defines an adopted child as a child adopted in terms of any other law’45. it further provides that an adoptive parent46 includes a parent who has ‘adopted a child in terms of any other law’. it provides further that a child is adopted if the child has been placed in the permanent care of a person in terms of a court order that is contemplated in terms of section 24247 of the act. section 242 provides for the implementation of an adoption order, which includes terminating the responsibilities that any person may have had towards the child prior to the order. the order confers full parental responsibilities and rights in respect of the child upon the adoptive parent; allows the child to adopt the adoptive parents’ surname, and prohibits marriage or sexual intercourse between the child and the adoptive parent. all property lawfully possessed by the child prior to the adoption remains theirs and is not transferred to the adoptive parents. the entire process gives 34 stephen monye, op cit., 35 african cultures see kinship differently from europeans. kinship is created through cattle – not necessarily through procreation. literally translated, ‘ngwana o tswalwakekgomo’ means ‘cattle not men begat children’. in custom, an adult man can be adopted into any family by giving a cow, a bull or an ox (kgomo). in marriage, a woman’s child-bearing capacity is transferred to her husband’s family through the giving of cattle. 36 stephen monye, customary law and adoption: the ‘o e gapa le namane’ custom as a reflection of customary -law development in south africa, journal of law, society and development, vol. 4, no. 1, pg. 1. 37 d singh, adoption of children born out of wedlock, 1996 de jure at 305. see further tl mosikatsana ‘comment on the adoption by k and b’ (1995) 31 crr (20) 151 (ontprovdiv) 1996 at 582. 38 see robb v mealey’s executor (1899) 16 sc 133–136. 39 stephen monye, customary law and adoption: the ‘o e gapa le namane’ custom as a reflection of customary -law development in south africa, journal of law, society and development, vol. 4, no. 1, pg. 3. 40 (hereinafter referred to as the children’s act). 41sections 233 and 236. 42sections 237 and 238. 43 see s231. 44 s231. 45 s 1 of the children’s act. it was initially defined as ‘a child adopted under the provisions of chapter 4 of this act or of the children’s act, 1960 (act 33 of 1960), or of the children’s act, 1937 (act 31 of 1937), or of the adoption of children act, 1923 (act 25 of 1923)’. 46 s1 of the children’s act initially defined as ‘a person who adopts or has adopted a child under the provisions of chapter 4 of this act or of the children’s act, 1960 (act 33 of 1960), or of the children’s act, 1937 (act 31 of 1937), or of the adoption of children act, 1923 (act 25 of 1923)’. 47s 242. african customary and religious law review (acarelar) 4 (2023) 76 effect to the creation of a parent–child relationship between the adopting parties and the adoptee. the act further regulates who may adopt a child. of significance here is that a child may be adopted by a married person whose spouse is the parent of the child or by a person whose permanent domestic life partner is the parent of the child48. the section further allows for the biological father to adopt a child born out of wedlock. this section also caters for instances where a male spouse sires a child while married or before marriage to another woman. the act further allows foster-parents to adopt the children being fostered by them. section 230 provides a list of children who are adoptable and makes any child adoptable if it is in the interests of the child to be adopted. the requirements for adoption are to be welcomed as they make it easier to identify formal adoptions. this is more apparent as a result of the fact that the order for adoption is made by the children’s court after it has considered the application for adoption in terms of section 240 of the act. child adoption in ghana ghana is one of the world’s fastest growing economies and does not have a lot of civil unrest in its history. it ranks in the top quarter of the world’s most peaceful countries, so families are sure to feel comfortable traveling for their adoption. adoption in ghana is handled by the department of social welfare (dsw) client services unit, and the local court system. families will work with can’s lawyer and local representatives to submit their dossier to the dsw, who issues the referral, and later to the court for final approval of the adoption. adoptions in ghana are only legal when the dsw approves them, and they are only complete once the court approves them. ghana is not party to the hague convention. child adoption under the ghana children’s act 199849 fosterage and adoption is covered under part iv of the children’s act50. this part is sub-divided into four subparts, sub-part 1 to sub-part 4 and covers section 62 to section 86. an application for an adoption order may be made jointly by a husband and his wife to adopt a child51. an application for an adoption order may be made by the mother or father of the child alone or by either of them jointly with a spouse.52 an application for an adoption order may be made by a single person subject to the provisions of this sub-part except that this shall only apply to a citizen of ghana and with due regard to the best interest of the child.53 fundamentally adoption in anambra state and other jurisdictions provides the child with a home where he or she would be properly taken care of and the adopter parents’ sadness of childlessness will be removed, bringing happiness in the said family. 6. conclusion and recommendations from the foregoing, one could see the challenges of child adoption in the igbo cultural heritage, south east, nigeria. though globalization has brought lots of changes into igbo culture thereby making some families benefit from child adoption, homeless and motherless children are also given a home. some hopeless children who were denied of parental care were adopted by families and were given hope. again, the practice of adoption seeks to permanently severe the relationship between the adoptee and his natural family. what if the adoptee wants to go back to his natural family in the future? adoption should therefore be reserved only for children whose parents are unknown but for some other categories of children, foster parenting or guardianship would be preferable as such juveniles would be free to maintain contact, no matter how trivial, with their natural families. it is of utmost necessity that the benefit of child adoption cannot be over emphasized. therefore, there is the need to disabuse the wrong ideology of igbo man over adoption. it is good that investing in a human being is the greatest investment one should embark on. from every possible indication, the need for orientation on child adoption and the values inherent in it cannot be played down on. taking care of our fellow human being through child adoption is another way of helping each other and becoming a steward of our fellow humans and thus respecting the call of god in the book of genesis. adoption in some other jurisdictions under discuss is basically to give a sense of belonging, care and family life to the adopted child and wipe the tears of childlessness from the adopter. child adoption is supposed to give couples parental control of a child. it is also supposed to be an alternative for couples who have no child of their own, thereby giving them the opportunity to have a child of their own. unfortunately, the idea has been misinterpreted or misunderstood and, in some cases, perception and cultural beliefs have affected the acceptability of adoption amongst the igbos of nigeria land. this paper therefore makes the following recommendations: 48s 231(c). 49 the children’s act 1998 (act 560) of ghana 50 the children’s act 1998 51s.66(1) children’s act 1998. 52s.66(2) children’s act 1998. 53s.66(3) children’s act 1998. nwogu & mba: child adoption in anambra state of nigeria and the perception in some other jurisdictions 77 (a) the government, non-governmental organizations, community based health education programmes should create awareness through workshops and seminar and educate the societies on the importance and benefits of adoption to infertile couples. (b) the hospitals, government’s agencies that handle the process of adoption should be properly trained to keep proper records and maintain confidentiality of the adoptees and the child to be adopted, with this the adoptees will be confident and rest assured of the child they are adopting. (c) adopters should also ensure that an adopted child automatically and legally becomes their own child, they should take proper care of the child the same way they will take care of their own biological child. (d) government should give strict modalities and monitor any adopted child to make sure that the adopter parents are taking good care of the children in their custody. (e) a child who is not wanted by the parents, should be taken to the motherless babies home so that those who are in need of children can adopt them and give them a home. if eventually the biological parents come for him later in life, government legislation should be used against them. (f) the church and non-governmental organizations should always preach on the importance of child adoption and the benefit of taking care of the adopted children. (g) medical professionals should keep to the ethics of their profession by being truthful about child adoption, with this, the adopters will be confident about the child he/she is adopting. (h) government, ngos and missionaries should build more modern facilities for the homeless, orphans and less privilege. this will go a long way in keeping them off the streets and road. such facilities should be extended also to the rural areas. elendu: effect of determinism on criminal liability in nigeria page | 36 effect of determinism on criminal liability in nigeria* abstract criminal liability is the imputation of guilt on a person for an omission or a wrong done. a person is therefore said to be criminally liable when he commits an offence known to law and in the nigerian criminal justice system, such a person is presumed until he is found guilty by a court of competent jurisdiction. there is no gainsaying that several factors may contribute to the criminal acts of such a person, which are usually the defences available to him such as mistake as to fact, insanity, delusion, accident, etc. recent researches in other climes and jurisdictions have shown and revealed that determinism can now validly suffice as a defense for criminal liability where successfully proved, although the nigerian criminal justice system is yet to come to terms with the doctrine and concept of determinism as a defence for criminal liability. this paper is aimed at elucidating the concept or doctrine of determinism in relation to criminal liability in nigeria in pari materia with its applicability or effects on criminal liability in some other common law countries of choice. in furtherance of this work therefore and for the purposes of this paper, it is imperative that study the concept of determinism. the comparative and descriptive research approaches are employed in the analysis of data collected through doctrinal sources. the study recommends that determinism in criminal liability in nigeria should be jettisoned for now because of the several nuances of criminal activities therein. keywords: determinism, criminal liability, nigeria, effect 1. introduction determinism and criminal liability have become issues of discourse in recent time in the criminal academic world, this is because, there seems to be an up surge and emergence in the believe in destiny, will of god, genetic influences, nature and nurture principles, latency, innate abilities, predestination, et cetera. according to justice e. o. fakayode (as he then was), ‘the idea of codifying the law of a sophisticated society is very ancient1 which purports that the beliefs and issues that were considered in the making of our criminal law(s) are ancient and of course portends that these believes are not very recent, but have been with us from time immemorial, except that there is now a much more interest and inquest on how they have contributed in shaping our lives, especially criminalwise. despite the so much influence on the nigerian society, our criminal justice system as inherited from the colonial masters who had no consideration for these issues or beliefs, hence our criminal law (criminal code and penal code) are very silent on most of the issues mentioned herein. in answering the questions raised in the abstract to this paper, the author has identified three variables which shall be treated as sub-topics in this work. they include; criminal liability, determinism and effect of determinism on criminal liability. the work finally ended with a comparative discuss on the effect of determinism on criminal liability in ghana, plus a conclusion and recommendation. 2. what is criminal liability/responsibility? there is no dispute that law is defined in a wider sense as rule of action, especially for the control of human actions.2 thus every society whether primitive or civilised is governed by rules of conduct which the society regards as the ‘standard of behaviour.’3 ordinarily, obedience to law is usually secured by sanctions or punishments, although there are a lot of persons who just obey laws because they believe that it is in their best interest and the entire society to so do in other to avoid anarchy. sanctions for disobedience to law are usually imposed for the purpose of protecting the general populace and society against persons who may be of, or manifest deviant behaviours as is always the case. in our local or primitive societies before the advent of the colonial masters, laws were the unwritten customs and traditions of the people handed down from generation to generation and were seen as binding amongst members of the community.4 and to justify these customs and traditions, a person in breach of them is said to have committed an offence punishable as stipulated in the custom, no more, no less. this is why a person who has killed another person whether by accident or intentionally is made to die by hanging in most of our primitive societies. often times the accused hangs himself even before he is apprehended and made to face the wrath of the law/custom. this was therefore the beginning of criminal responsibility or liability in nigeria before the laws were later codified and criminal responsibility or liability defined and specified. thus, criminal law became known as the law that deals with, and regulates criminal acts of members of a given society, hence a crime is an offence against the state and punishable by the state that made the law. *by chikodi gideon samuel elendu, nce, bed, llb, llm, phd candidate, faculty of law, nnamdi azikiwe university, awka, nigeria 1 justice e. o. fakayode, the nigerian criminal code companion (ethiope publishing house, benin, 1985), xli. 2 a. o. obilade, the nigerian legal system, (spectrum books ltd, ibadan, 1979). 3. 3 ibid. 4 ibid. african customary and religious law review 1 (2020) page | 37 the nigerian criminal law derives its source from the english common law5 through colonialism and was later codified into the criminal code and the penal code which never defined crime, except for the criminal code act which merely defined ‘criminally responsible’ and ‘criminal responsibility’. according to the criminal code act ‘criminally responsible’ ‘means liable to punishment as for an offence,’ while ‘criminal responsibility’ ‘means liability to punishment as for an offence’.6 in case law, karibi-whyte (jsc) of blessed memory had stated that:7 the principle of causation dictates that an event is caused by the act approximate to it and in the absence of which the event would not have happened-so long as the cause of death is traceable to the injury inflicted by the accused, he would be held criminally responsible.8 the important consideration for determining (criminal) responsibility is whether death of the deceased was caused by the injuries he sustained through the act of the accused and not whether from the medical point of view death was caused by such injuries. on the other hand, justice fakayode tried to point out that there are two main rules of ascertaining criminal liability, namely; the strict liability rule and the morally-blameworthy rule,9 which are traceable to the common law principle of criminal liability. at common law, the test for criminal liability is summed up in the latin expression/maxim actus non facit reum nisi mens sit rea. this expression have gone down in the history of our criminal justice system as actus reus ad mens rea which connotes that for any person to be held criminally liable for the offence he is charged with, it must be as a result of his voluntary outward conduct concurring with his morally blame-worthy mind.10 and that at the stage of completing the commission or omission which leads to his offence, his conduct and mind meet together, otherwise he cannot be said to be criminally liable, except for strict liability offences which take into consideration the actus reus (wilful conduct or inadvertent omission on the part of the accused person) only. this is why strict liability offences are specifically provided for as so in statute books.11 the closest definition of criminal liability in the nigerian criminal code act is that found in section 24, which says that: subject to the express provisions of the criminal code act relating to negligent acts and omissions, a person is not to be criminally responsible for an act which occurs independently of the exercise of his will, or for an event which occurs by accident.12 the purport of this is that there must be a meeting of the evil mind of the accused and his overt conduct/misconduct before criminal liability of the offence can be imputed against him. suffice it to say therefore that criminal liability has become the bases for offences in nigeria whether strict liability offences or otherwise by virtue of the provisions of the criminal code act, the penal code, the recent administration of criminal justice act (2015) and the administration of criminal justice laws of the various states of the federation. 3. what is determinism? the term determinism, or its principles are not contained, nor defined in any law or statute in the nigerian criminal justice system, although the doctrine or concept as the case may be is one of the emerging trends and developments making inroads into criminal justice systems worldwide. it is therefore more jurisprudential in nature for now, with the belief that it will soon become a very serious issue for consideration in determining criminal liability in nigeria very soon. the proponents of determinism are philosophers who have come to the conclusion that criminal offences have some form of determining factors that may and usually influence a person into committing an offence.13 plato the renowned scholar was one of the foremost philosophers who alluded to determinism when he posited in his idealistic philosophy that; ‘physical or natural manifestations, are mere reflections of the higher spiritual foundation of the principles, or real forces behind them, in the unseen realm’14 plato was alluding to the fact that there are principles and real forces that influence the behaviour of man from the unseen realm. he therefore advised that there is need to seek for the absolute basis15 of any matter,16 because of the fact that the 5 c. o. okonkwo (ed), okonkwo and nash, criminal law in nigeria (spectrum books ltd, ibadan 2002). 3 6 interpretation section of criminal code act, cap 77, laws of federation of nigeria (lfn) 2004. 7 eric uyo v. a. g. bendel state (1986) 2 sc 1, at page 31 8 emphasis mine 9 e. o. fakayode (supra), 8. 10 ibid. 11 ibid. 12 section 24, criminal code act, 13 martin oteng-ababio, et all, ‘is the underdevelopment of northern ghana a case of environmental determinism or governance crisis?’ https://www.ajol.info/index.php/gjg/article/view/159536, accessed 02/08/2021 14 f. obi. nwanze, basic understanding of jurisprudence, (mercury press asaba, 2004). 23 15 emphasis mine. 16 ibid https://www.ajol.info/index.php/gjg/article/view/159536 elendu: effect of determinism on criminal liability in nigeria page | 38 implication that the immediate experience may not be, or indeed, is not the ultimate reality that should be understood.17 a cursory look at the proposition of plato as seen above reveals that there is something supernatural that influences the actions and activities of any person so much so that the immediate things we see around that person may never be what it ought to be. this to the writer’s mind may be responsible for the recent views expressed by some scholars to the extent that determinism and free will are now issues of the classic debates in psychology to the extent that psychologists now believe that human behaviours are influenced by forces beyond their control. borrowing a leaf from plato, it does appear that later philosophers who have canvassed the relationship between determinism and criminal liability began to think and posit that; the entire gamut of criminal liability or responsibility as the case may be, is not entirely an issue of just making laws to restrain, or combat crimes in the society, but that law making must go beyond that so as to seek out why certain behaviours which later manifest as crimes and offences by persons in the society, are still exhibited despite the laws and punishments for such crimes/offences that stare such exhibitors on their faces. these later scholars of determinism, therefore concluded in their postulations that, from a criminological perspective, determinism is ‘a philosophy contending that human behavior is caused by biological and psychological factors specific to individuals and/or the structural factors that comprise one's environment.’18 in their thinking, there are economic, environmental, criminal and social determinism, which is why even after independence, most african nations are still bedeviled with political, economic, cultural, and social problems borne out of determinism. and this is the reason why economic development is very minimal in africa19 coupled with bad leadership or governance. there is therefore no gainsaying that the determinist approach proposes that all behaviour has a cause and is thus predictable, while free will is an illusion, as our behaviours are governed by internal or external forces over which we have no control.20 there is also another school of thought that believes and holds the view that an individual’s behaviour is controlled by internal (genes etc…) or external (e.g. learning behaviours from our parents) forces.21 the purport of their belief is that, our behaviours should be predictable, by virtue of who our parents are (whether saints or thieves), and the external experience we have passed though at home, school, religious classes, et cetera. in criminology, there is also the concept of freedom of will, freedom of action, or freedom of self, which is a very pivotal issue of criminology and often times leads to the question of man's freedom of choice in acting or not acting and his consequent responsibility for his action or inaction i.e conduct. contrary to the freedom of action or self, theory of the criminologists, the determinist theory suggests that man's will does not motivate action, or his conduct, but that man’s actions or inactions results from extraneous sources or factors.22 this means that determinists are of the opinion that every man is already predestined or predetermined to act in a way beyond his control, hence criminals do not exist, since all impulses from which actions stem are irresistible. it is important to reiterate that despite the fact that god gave humans the right to choice or will,23 determinists suggest that man has no control of that choice or will given to him and should the determinists be right in their view, then man ought not to be punished for any offence, since he did not commit it willingly. some other scholars have advanced the frontiers of determinism by identifying the fact that there are varied types of determinism, ranging from social, economic, environmental etcetera. accordingly, they have argued that there is what is known as environmental determinism, which connotes that, or which is the idea that the environment (including geography and climate) determines the character and attributes of cultural and ethnic groups.24 if this view of environmental determinism is allowed to hold sway, it means that a nation like nigeria cannot have one criminal justice system as it is presently provided for in the criminal code act, or in the administration of criminal justice act, but an ethnic/cultural criminal justice system applicable to each of the ethnic groups in the country. it will therefore be full hardy for any state like the nigerian state, to make laws regulating offences in every part of the country made up of various ethnic groups, this may probably be the reason why states in nigeria are allowed to make their own peculiar laws triable in the courts of that state. 17 ibid 18 j.a. helen,‘independence or colonial determinism? the african case’ https://www.jstor.org/stable/2614925. accessed 03/08/2021. 19 ibid 20 simha landau and leslie sebba, ‘problem of free will in criminology (from criminology in perspective essays in honor of israel drapkin, 1977 by ncj-45543). https://www.ojp.gov/ncjrs/virtual-library/abstracts/problem-free-will-criminologycriminology-perspective-essays-honor accessed 04/08/2021. 21 ibid 22 ibid 23 deuteronomy 30:19, joshua 24:15, (the holy bible, king james version) 24 k. matthew, ‘environmental determinism’ https://www.futurelearn.com/info/courses/remaking-nature/0/steps/16726. accessed 03/08/2021 https://www.jstor.org/stable/2614925 https://www.ojp.gov/ncjrs/virtual-library/abstracts/problem-free-will-criminology-criminology-perspective-essays-honor https://www.ojp.gov/ncjrs/virtual-library/abstracts/problem-free-will-criminology-criminology-perspective-essays-honor african customary and religious law review 1 (2020) page | 39 the environmental and social determinists also hold the view and assumption that there is climate determinism which is the basis for the racially motivated notion that the climate influences human intelligence and societal development.25 they further assumed whether rightly or wrongly that people in tropical climates are helpless victims who lack the capacity to cope with climate change26 which may in turn affect their degree or level of criminal liability. there is also another heavy debate on determinism versus free will, wherein scholars of psychology, history, climatic change, neurologist, etcetera, have argued that the experience of mental disorders like schizophrenia, whose sufferers experience a total loss of control over their thoughts and whose behaviour casts doubts over the notion of free will, because no one would ordinarily and naturally want to choose to have schizophrenia, are predetermined. this suggests that at least in terms of mental illness, behaviour would appear to be determined and criminal liability would be suspended, which is usually invoked upon a successful plea and defence of insanity. accordingly, insanity has been described to mean: ‘in law, the word insanity is used to denote that degree of mental illness which negates the individual’s legal responsibility or capacity’27. meanwhile, the case against free will is that neurological studies have provided evidence that have demonstrated that the brain activity that determines the outcome of simple choices may predate our knowledge of having made such a choice. the researchers found that the activity related to whether or not to press a button with the right or left fingers occurs in the brain up to 10 seconds before the individual becomes consciously aware of making such a decision. this suggests that elements of our biology are already being drafted into our decision making before we even become consciously aware of our decision or choice.28 it is submitted categorically that, determinism as it were, is not as recent as canvassed, because plato and his colleagues of the idealistic and positivism schools of thought had written to that effect, wherein they expressed their views regarding aspects of determinism. the issue or concept therefore, has only received a new approach in relation to criminal liability/responsibility vis-a-viz the effect of it on criminal liability. 4. effect of determinism on criminal liability in nigeria the writer had posited earlier that determinism is a recent concept and philosophy in the study of criminology even though it had been alluded to since the time of plato and his colleagues. the result therefore is that there are only a few literature on the search for the relationship between determinism and criminal liability here in nigeria and even in other climes. notwithstanding the overt dearth of literature in this regard, it is important to state here that; the fear of crime, prevention and punishment for crime have been important topics of discuss in the academic world of criminology, not just for the entire people of nigeria, but also for the nigerian state and its politicians. this is evident by the fact that politicians have learnt that crime and especially fear of crime is very helpful to follow their own interests to be elected again.29 several surveys have been carried out on the people’s perception of crime and their ideas on how to curb same, the various discoveries have been that, more severe punishments should be imposed for offences, because according to them, ‘more severe punishments leads to less crime.’30 that is to say that if you give people what they want to have, i.e. more punishments, harsher laws and more severe crime control, the problems in the society will be ‘solved.’31 if this view about crime control and prevention is supported, then the state (nigeria) will have to always look at and amend her criminal laws so as to meet up with their severe punishments per time. it is no longer news that laws are made by man for the good governance of the state, ordinarily therefore, determinism should not have any effect on the criminal liability of any person because laws are made for the good governance of the state and of course, if the state allows her citizens to behave without any control of their choices and will, then anarchy is imminent. this is because, when choices are not controllable, it will be abused and rights of persons will be trampled upon contrary to the aspirations of the state, which is why the state consciously decides to outlaw certain behaviours in so far as they will not promote good neighbourliness and a just an egalitarian society where opportunities are equal for all. the opening paragraph of the 1999 constitution will readily come to our aid now as it reads: we the people of the federal republic of nigeria having firmly and solemnly resolved to live in unity and harmony as one indivisible and indissoluble sovereign nation under god, dedicated to the promotion of inter-african solidarity, world peace, international co-operation and understanding: and to provide for a constitution for the purpose of promoting the good government and welfare of all persons in our country, on the principles of freedom, equality, 25 ibid 26 ibid 27 see the case of umar mustapha usman v the state elc (2018) 3423 sc, per p. a. galinje (jsc) 28simon donner, ‘the ugly history of climate determinism is still evident today’ https://www.scientificamerican.com/article/the-ugly-history-of-climate-determinism-is-still-evident-today. accessed 03/08/2021. 29 gorazd meško and helmut kury (eds.), crime policy, crime control and crime prevention – slovenian perspectives, (tipografija, ljubljana 2009), 7 30 ibid 31 ibid https://www.scientificamerican.com/author/simon-donner/ https://www.scientificamerican.com/article/the-ugly-history-of-climate-determinism-is-still-evident-today elendu: effect of determinism on criminal liability in nigeria page | 40 and justice and for the purpose of consolidating the unity of our people do hereby make, enact and give to ourselves the following constitution.32 an obvious fact from the opening paragraph of the constitution cited above, is that we all nigerians consciously chose to make a constitution for ourselves for the purposes thereto, even though the autochthonousity of the said constitution is still in question till date. but whether we query the autocthonousity of the constitution or not, we have remained bound by it till date and every other law(s) made in nigeria have been derived from the said constitution which gives itself the power to override any law made inconsistent with its provisions. it is now trite that since the constitution is the grundnorm of the country nigeria, every other law that was made and will be made in nigeria must derive its source and authenticity from the constitution.33 the nigerian criminal justice system and the laws made thereto were fashioned as to achieve the aims and objectives of the constitution. for instance the administration of criminal justice act (acja) 2015 which is more of a procedural law for criminal justice stated that: ‘the purpose of this act is 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 society from crime and protection of the rights and interests of the suspect, the defendant and the victim.’34 these intended aspirations of the (acja) as shown above is in furtherance of the relevant sections of the said constitution35 the point being made above is that the constitution and the other laws made thereto are to ensure and promote good neighbourliness and peaceful co-existence by all comers in the state. the laws therein must be obeyed in so far as they guarantee this peaceful co-existence. and to buttress the fact that the state is interested in regulating the affairs, activities and the excesses of her citizens, they have also made limitation laws to regulate even the time within which a person can ventilate or litigate his cause of action in court. the courts have held that the overriding purpose of limitation is the ‘desirability of preventing plaintiff from prosecuting stale demands on one hand and protecting defendants from disturbance after a long lapse of time when they have grown accustomed to the position or lost the evidence to defend it on the other hand.’36 it must be reiterated that the principal basis for criminal liability in the nigerian legal system is that a man intends the natural consequences of his action or inaction,37 while determinism holds the view that every man’s action or inaction had been predetermined, hence man has no control over them. this to our mind is inconsistent with the principle of good neighbourliness and peaceful co-existence which the criminal law seeks to protect. if we accept the fact that every action or inaction of a person is predetermined, then we will pass every such actions or inactions which will thereafter hamper our peaceful co-existence because several persons are perpetually deviant in their behaviours or naturally inclined to do evil. criminalizing certain actions or inactions of citizens of the state therefore became paramount because of these deviant behaviours and evil intentions of man in other to put them in check. determinism therefore will not be able to control these deviant behaviours, evil inclinations, wicked affairs and devilish activities of man in the society, hence the need for criminal law to put them under check. what is being said here is that, granted that every person is born with certain innate abilities both to will and to do of his good pleasure,38 which is the principal basis for determinism which presupposes that every action of an individual had been pre-determined, hence the actor has no control over it, cannot hold sway in the criminal justice system, otherwise, the state will gradually slide into a state of anarchy. roscoe pound’s jural postulations on the fact that laws are made for social engineering were to the purport that laws are made for controlling individual relationships with one another in the society, which presupposes how people are expected to behave in certain circumstances in order to accord with standards of civilized society, exemplified by acting in good faith, abiding by agreements or undertakings, avoidance of deliberate damage to others and their property,39 not coveting your neighbour’s property, etcetera. this study maintains that determinism which presupposes that free will is an illusion, as our behaviours are governed by internal or external forces over which we have no control, exists and can actually affect criminal liability/responsibility, but because every person is born with one mind, and two sides of good and evil, plus the right to choose what to do and what not to do, societies will not be at peace if we insist on allowing determinism to affect criminal liability, because some persons will never give up until the society becomes uninhabitable for others. without mincing words, it is on record that some persons by their nature are always 'willing' to commit crimes, which supports the determinists’ point of view, but for the interest of the society, the law stipulates that since man willed the action and could have acted otherwise by choice, such criminal would be fully and exclusively responsible for his choice of 32 preamble to the constitution of the federal republic of nigeria (cfrn) (1999) as amended. 33 governor, ekiti state & others v prince sanmi olubunmo elc (2019) 3265 sc page 1, per c. c. nweze 34 section 1, administration of criminal justice act (acja) 2015. 35 see generally sections 34, 35, 36, 37, 38, 39, 40, 41 and 42 of the constitution of the federal republic of nigeria (cfrn), 1999 as amended. 36 per k. m. o. kekere-ekun (jsc) in mr. michael idachaba & ors v the university of agriculture, makurdi & ors elc (2021) 3481 sc. 37 per m. u. peter-odili in asiya bala orubo v the state elc (2021) 3484 sc. 38 the holy bible (philippians 2:13) kjv. 39 ditto (14, at p. 203) african customary and religious law review 1 (2020) page | 41 violating the law, regardless of the conduct of his victim and irrespective of his social and physical environment (social and environmental determinism). this is the assumption of all penal systems which seems to be indeterministic in nature40 in other to forestall peace in the society. furthermore, the philosophy of officially punishing a criminal is based on the fact that criminal law operates not only on the presumption that humans have a free will to decide their actions, but, at the same time, with the implication that they are intelligent and reasoning creatures who can recognize values and who can distinguish between right and wrong, hence criminal responsibility would extend to those who willed to commit a crime or neglected to do otherwise.41 thus, granted that we may have no control over our actions or inactions as opined by the determinists, the overall society’s interest is superior to any person’s innate pre-determined posture or ability, hence determinism is subservient to our peaceful co-existent which is guaranteed by the laws made by the state and which must be obeyed by all for peace to reign. 5. determinism in ghana the ghanaian criminal justice system is akin to the nigerian system haven been colonized by the same colonial masters, thus the concept of criminal liability is applicable mutatis mutandis. and since determinism is yet to make in road into the nigerian legal system, it is the same in ghana. this is why determinism and the idea that the individuals’ choice is not the cause of behaviour is not consistent with the way the legal system in ghana and in the uk operates.42 for instance, when a person is arraigned for any offence in a court of law in ghana as it is in nigeria, he is held morally accountable for his actions without any considerations of any extraneous/external or internal forces or influence. although only a very few of such persons would represent themselves in a court of law by trying to appeal to a judge that their offence was biologically, environmentally, or psychically motivated i.e. pre-determined. this fact of holding the offender criminally liable in ghana as it is in nigeria, goes against a deterministic approach because it suggests that we are in control of our own behaviours, actions, or inactions and that free will can and actually does override any ‘biological determined’ ideal. infact recent researches in the area of psychology suggests that people who have ‘internal locus of control’ (i.e. when an individual feels that they are completely responsible for their behaviours and actions), tend to be more mentally healthy as against persons who believed in fatalism (i.e. believe that their lives were decided by events outside of their control) who are at significantly greater risk of developing depression.43 this discovery suggests in effects that believing in free will has a very positive impact on human behaviour and mental health for both nigerians and ghanaians. 6. conclusion and recommendations the summary of all that have been said above is that granted that determinism exists and is now making inroads into our criminal jurisprudence, the debate about free will and determinism has shown that determinism is subservient to the peaceful co-existence of a state which is guaranteed by obedience to the laws made for the effective governance of that state. therefore the only consideration at present given to determinism in relation to criminal liability in nigeria and ghana can at best be likened to the plea of mental disorders like; schizophrenia, whose sufferers experience a total loss of control over their thoughts and behaviour which suggests mental illness (insanity) that can suspend criminal liability when successfully pleaded as a defence for the offence charged. it is no longer news that the degree of crime in this country has sky-rocketed, the things we used to take for granted are now of very serious concerns for all, the nigerian populace is becoming more violent daily and cost of living is going higher which precipitates an attendant increase in the struggle for survival and in turn boasts crime rate, hence it is therefore recommended for nigerian and ghana as follows: 1. that every attempt to juxtapose determinism on criminal liability be jettisoned. 2. that people should be made to pay for their evil deeds (crimes) as provided for in our extant laws till further notice, notwithstanding any preconceived condition of their health or mental state, except for a case of an obvious insanity provable in court. 3. that government should fashion out a better criminal justice system that can gradually accommodate the views of determinism with time as it is being done now for plea bargain and restorative justice. 4. that government should ensure speedy administration of justice as an antidote for less crime society. 5. that the judiciary should live up to expectation by dispensing free, fair, unbiased, unfettered and sound judgments. 6. that nigerians should undertake a voyage of discovery into how best to curb criminality. 7. that all hands should be on deck as to how to move the nations forward by creating more job opportunities, improved living standards, favourable dollar exchange rate, improved health care, electricity, education, etcetera, which are the banes of these nations. 8. and that let all ye that read this article know that except nigeria gets better than what it is presently, people will commit crimes for purposes of survival without considerations as to whether determinism or indeterminism will affect their criminal liability. 40 ditto (27) 41 ibid 42 ditto (27) 43 ibid aina-pelemo & opadere: the implications of faith-loss in the ensnarement of sexual harassment in the workplace page | 20 the implications of faith-loss in the ensnarement of sexual harassment in the workplace* abstract sexual harassment/assault is a traumatic event, which could reduce the well-being and might occasion less or increased spiritual roles of the victim. doubtless, humans are spiritual and often times affiliates/adherents of particular faiths. however, the philosophy of a higher or lower spiritual inclination, in consequence of sexual harassment, might be possible if the victims consider the demands of their faith before or after the occurrence of the sexual act; particularly, if the victim was in a position to take an action that could avert or mitigate the harassment/assault. it could also be a case of struggling with the act and the spiritual life, or a situation where the faith of such victim is challenged for overt or covert reasons, which culminated in succumbing to the harassment. therefore, this research examined whether spirituality influences the decision of victims before falling prey to sexual harassment or not; which could be termed bold or timid, from the faith perspective. in addressing the issues raised in this study, the doctrinal research methodology was adopted. this involved exploring books and journal articles in hardcopy and electronic formats on spirituality, sexual harassment, and other cognate fields. the paper endeavoured to substantiate that some sexually harassed victims succumbed to sexual harassment or assault not because they were not spiritually inclined, but due to several factors, especially lack of faith or doubt in the spirituality. the christian religion was predicated upon for the discourse, and the nigeria society used as case study, for the ease of reference. the study made some viable recommendations simultaneously with the discussion, to help prevent people from further falling prey to sexual harassment/assault, as they leverage on faith to assume responsibility for their individual well-being in the workplace and elsewhere. keywords: ensnarement; faith; sexual harassment; spirituality; workplace. 1. introduction the unwanted sex-related behaviours in the workplace which is perceived as offensive, intimidating, humiliating, hostile, demeaning, frustrating and threatening to the resources and well-being of the recipient is known as sexual harassment.1 a traumatic event such as sexual harassment or assault causes reduced well-being, which might likely occasion less or increased spiritual roles that help to restore well-being.2 however, this philosophy might be possible if the person or victim considers the demands of their faith before the occurrence of the sexual act or after. it could also be a case of struggling with the acts and the spiritual life. of the seventy women sexually assaulted, as shown by a survey conducted by kennedy, et al., sixty showed increased spiritual roles as it enhanced their well-being; and those with less spiritual roles significantly portrayed depressed well-being.3 in essence, in moments of being downcast, consolation is sought in religion. sexual harassment can be critical to the spiritual life of the person who has been subjected to the abuse.4 pertinently, there is a significant role in decision-making on the part of the victim when it relates to religion and sexual harassment. the onus is on the victim to say no and to do all that is possible in the circumstance to avert succumbing to the harassment. failure to prevent occurrence of the harassment, as much as lies within the control of the would-be victim indicates that the person is either not into any faith or such faith is lukewarm or dicey. this analogy relates to the socio-psychology definition of sexual harassment which says that sexual harassment is a two-way phenomenon. that is, a specific unwanted behaviour and the recipient’s reaction to such behaviour.5 in essence, the reaction of the victim could either be receptive or resistant and this must be backed up with active *by adetutu d. aina-pelemo, phd [first and corresponding author], associate professor of law, department of jurisprudence and international law, redeemer’s university, ede, osun state, nigeria, west-africa. email: ainapelemoa@run.edu.ng or ainaadetutud@gmail.com. phone number: +2348038397372 ; and *olaolu s. opadere, phd, professor of law, department of public law, redeemer’s university, ede, osun state; on technical assistance to faculty of law, university of the gambia, west africa. email: laoluopadere@gmail.com. 1 lf fitzgerald, and others, ‘antecedents and consequences of sexual harassment in organizations: a test of an integrated model’ 82 journal of applied psychology 578, (1997); mcdonald, workplace sexual harassment 30years on: a review of the literature’ 14, international journal of management reviews 1 (2012); jc quick, ma mcfadyen, ‘sexual harassment: have we made any progress?’ 22 journal of occupational health psychology 286, 286 (2016); ad aina-pelemo, pa ejembi, iseoluwa aina, ‘review of literatures on definition of sexual harassment in the workplace: underscoring their prescriptive implication’, 9 benue states university law journal 33, 43 (2020). 2 james e. kennedy, robert c. davis and bruce g. taylor, ‘changes in spirituality and well-being among victims of sexual assault’, 37 journal for the scientific study of religion 322, 322 (1998). 3 ibid. 4 beth r. crisp, ‘the spiritual implications of sexual abuse: not just an issue for religious women?’ 20 in feminist theology, 133, 133 (2012). 5 jl berdahl, harassment based on ‘sex: protecting social status in the context of gender hierarchy’, 32 academy of management review 641, 641 (2007); p ejembi, a aina-pelemo, o ejembi and i aina, ‘the trajectory of nigerian law regarding sexual harassment in the workplace’, 4 african journal of law and human rights 1, 5, (2020). mailto:aina-pelemoa@run.edu.ng mailto:aina-pelemoa@run.edu.ng mailto:ainaadetutud@gmail.com african customary and religious law review 1 (2020) page | 21 steps so as to proof the value of the person’s morals and religious faith. for as long as the victim endures or condones the harassment, he/she remains ensnared and/or enslaved, in the literal sense of the words, by the predator as well as the psychological effects of the act. by social perception, sexual harassment may be welcomed by the victim,6 and that indicates that it is the victim’s decision about the weird behaviours that matters. however, such decision ought to be based on the exercise of victim’s faith and morality; otherwise, such faith becomes the reactive measures for rehabilitating victims that have been sexually harassed. this latter position substantiates the position that one of the ways survivors or victims cope with the experience of sexual harassment is the use of spirituality.7 the posture of this discourse is that such faith or spirituality is better used for prevention rather than reparation, when proactively deployed in sturdy resistance against the vice of sexual harassment. workplace is a formal and informal place where one learns, develops, creates, acquires or enhances knowledge.8 in the context of this discourse, our major concern is that victims who profess faith ought to put their faith/religion in view before conceding to any form of sexual harassment at any time; except it was committed unexpectedly and/or forcefully. possibly, if that is done conscientiously, there could be less report of sexually harassed victims and that might serve as a way of preventing sexual harassment in the workplace. nevertheless, there are situations whereby spirituality is jettisoned by the victims due to factors, like unemployment, poverty, peer influence, lack of faith in the spiritual, pessimism, fear of the unknown, etc. this research therefore examines the influence of spirituality in the decision reached by victims of sexual harassment in the workplace. the difference between this study and previous ones is that, whilst the latter focus mainly on recovery of victims from sexual trauma with the aid of spirituality; the former (this study) focuses on the possibility that spirituality would influence the decision of victims and avert falling prey to sexual harassment. for avoidance of using an unfamiliar religious premise, we have chosen to tilt this discourse to towards christianity, its adherents, and their religious texts; with which these writers are acquainted. the doctrinal methodology was adopted by exploring books and a broad range of existing journal articles in hardcopy and electronic formats on spirituality and sexual harassment. 2. the interaction of morality and sexual harassment for better understanding of the meaning of harassment, it is essential to have a clear image of what morality denotes. friedman endeavoured to describe morality thus: ‘…i may be bigger than you, i may not use this to take advantage of you. the fact that i am rich and you are poor, or that i am strong and you are weak, healthy while you are sick, does not entitle me to take advantage of your disadvantage.’9 essentially, sexual harassment is a personal moral predicament and ethical challenge within the workplace, where an expression of positive morality is required. morality means a set of principles about what is right or wrong, good or bad and just or unjust.10 these norms, beliefs or traditions of morality are a creation of the society held by a majority of people in the society that could either be positive or negative.11 by implication, the fact that an act is accepted or condoned in the society does not make it right. in this discourse, divine law is regarded as the set of commands of god that are either expressed or implied.12 one then wonders what determines the negativity or positivity if a societal practice bothers on divine law. rumble affirms austin’s distinction of divine law and positive morality;13 to the effect that positive morality of a society is correct in so far as it coincides with divine law and incorrect in so far as it deviates from it. hence, any social behaviour that negates the principles of the divine or religious law is seen as negative morality. in essence, a person who truly practices or understands the true meaning of divine law or faith in a religion ought to use his or her intuition and implied commands of god to discourage or prevent any unwanted social behaviour personally. victims of sexual harassment are not totally exonerated from the occurrences, except such act is unexpected or done forcibly. in the instance whereby the victim succumbs after several pressures then it is a question of faith and/or practice of the divine law. this takes us back to the subject matter that sexual harassment can be averted if people of faith are highly sensitive to the divine law. sexual harassment has to do with unrelenting, unwanted and unnecessary sexual advances where the consequences of refusing are potentially 6 ibid. (note 5) 651; lf fitzgerald, who says? legal and psychological constructions of women's resistance to sexual harassment’ in ca mackinnon, and r b siegel, directions in sexual harassment law, 94-110 (eds, yale university press, 2004). 7 gregory p. knapik, donna s. martsolf, claire b. draucker and karen d. strickland, ‘attributes of spirituality described by survivors of sexual violence’, 15 in qualitative report 644, 644 (2010). 8 karen cacciattolo, ‘defining workplace learning’, 1 european scientific journal 243, 243 (2015). 9 manis friedman, the morality of weakness: defining sexual harassment. chabad.org. (apr, 23, 2005, n.d.), https://www.chabad.org/library/article_cdo/aid/3169/jewish/the-morality-of-weakness-defining-sexual-harassment.htm 10 emima alistar hîrlav, the relation between law and morality, rais conference proceedings, 358 (april 3-4, 2019). 11 isabel turegano, m. freeman, p. mindus, the legacy of john austin’s jurisprudence: reconstructing austin’s intuitions: positive morality and law, 1 ebook springer, 291-311 (2013). 12 wilfrid e. rumble, ‘legal positivism of john austin and the realist movement in american jurisprudence’, 66 cornell law review 986, 1007 (1981). 13 ibid, 1007. https://www.chabad.org/library/article_cdo/aid/3169/jewish/the-morality-of-weakness-defining-sexual-harassment.htm aina-pelemo & opadere: the implications of faith-loss in the ensnarement of sexual harassment in the workplace page | 22 disadvantageous to the victim.14 the posture of this discourse is that those victims are not totally helpless or taken away by fear of the consequences of refusal; but for doubt of the potencies and realities of their faith. victims’ experience of sexual harassment differs, the circumstances have ominously similar characteristics; they typically include an all-powerful (usually male, though not excluding female) figure in a position of authority who takes advantage of his status and position to subdue others (mainly women but, in some cases, men) to degrading and unacceptable behaviour.15 victims can turn down the offer of sexual harassment from his/her employer by resigning the employment and trusting faith for a better one rather than violating the divine law, and self dignity, to fit into societal practice. in fact, it is difficult to prove a case of sexual harassment, because it is carried out in such a way that the victim is too heavy burdened or afraid to share his or her experience with others, except a very courageous survivor or if the harasser harasses a group of people in the same or similar organisation. more so, male harassers see women as very secretive and they can rarely share private matters of such with fellow women, thereby aiding its occurrence in the organisation. often times, it is also difficulty to get witnesses and corroboration to establish the case in public.16 3. societal response to sexual harassment the nigerian society is one that readily provides a platform for sexual harassment of females in so many ways; such that has led to the trivialisation of sexual harassment when reported by victims. ige and adeleke revealed that majority of the respondents surveyed that reported been sexually harassed were not taken serious, some were laughed at and some people playfully told the victims to desist from arousing the sexual drive of the harassers.17 this attitude toward victims is not strange due, partly, to the patriarchal structure of the nigerian society. adebukola and adebimpe said that the position of women in african societies especially nigeria is more like a support/subordinate and men the decision maker or power dictator.18 this could be corroborated by the traditional and religious practice of permitting men to marry more than a woman and perceiving women with several husbands as sinners or having committed a taboo.19 although sexual harassment affects both genders, but the negative impact on the female is worse than that of the male in most societies. women are usually seen as a gratifying object to satisfy men’s sexual urge20 and procreators as opposed to being equal with men in terms of values advocated by international legal instruments, especially the convention on the elimination of all forms of discrimination against women (cedaw). it is reported that women in nigeria have been structured in such a way that when they are subjected to violence, in public or private, specifically the married ones, they are expected to remain silent and endure it all the way.21 a part of nigeria’s culture enhances male preference, as most of the cultural rites are performed by males.22 the societal perception of women does not only promote sexual abuse against them, but portrays women as less important to men. the peak of absurdity is when youths, siblings and parents see sexual harassment or abuse as norms for female to face in the workplace. it is observed that some parents assume that sexual harassment is one of the fastest ways to grow in employment and it is worth celebrating if you are preferred among your equals or colleagues in the society.23 among the 293 males and 357 females surveyed in a study by okoro and obozokhai, 14 abimbola patricia yakubu v financial reporting council of nigeria & anor, unreported suit no. nicn/la/673/2013, 2016 (nigeria). 15 aina-pelemo a. d. & ejembi p. a., sexual harassment and the law (15, 1st ed., jos university press, 2020). 16 olamide abudu, ‘sexual harassment in nigeria: it’s everybody’s problem’. the guardian (nov. 22, 2017, 1.25 am), https://guardian.ng/issue/sexual-harassment-in-nigeria-its-everybodys-problem/ 17 ige, a.y. & adeleke, i. a., evaluating the role of culture on sexual harassment: the case of nigerian organizations (2012). http://.www.ilera2012.wharton.upenn.edu/refereedpapers/igeay%20adelekeia%20ilera.pdf 18 adebukola dagunduro, & adebimpe adenugba, ‘failure to meet up to expectation: examining women’s activist groups in the post-colonial period in nigeria’, 4 open cultural studies 23, 28-33 (2020). 19 aina-pelemo adetutu deborah, mehanathan m.c. & kulshrestha pradeep, ‘sexual harassment at workplace: judicial impact in nigeria and india’, 4 indian journal of law & human behaviour, 121, 123 (2018). 20 gupta, r. sexual harassment at workplace, (7, haryana, lexisnexis, 2014). 21 awosusi a. o. & ogundana c. f., ‘culture of silence and wave of sexual violence in nigeria’, 1 aascit journal of education, 33, 34 (2015). 22 inyang-etoh, e. c. & ekanem., a. m., ‘child-sex preference and factors that influenced such choices among women in an obstetric population in nigeria’, 03 open access library journal, 1, 2 (2016); aina-pelemo, a., & saluja, s., ‘comparative analysis of sex-selection in nigeria and india’, 4 international journal of humanities and social science studies, 70, 7576 (2018). 23 imonikhe, j., aluede, o., & idogho, p., ‘a survey of teachers’ and students’ perception of sexual harassment in tertiary institutions of edo state, nigeria’, 8 african research review 412, 414-415, (2011); okoro, f. i., & obozokhai, o. ‘sexual harassment: the experience of out-of-school teenagers in benin city, nigeria’, 9 african journal of reproductive health, 118, 119, 124-25 (2005). https://guardian.ng/issue/sexual-harassment-in-nigeria-its-everybodys-problem/ http://.www.ilera2012.wharton.upenn.edu/refereedpapers/igeay%20adelekeia%20ilera.pdf african customary and religious law review 1 (2020) page | 23 231 (71%) respondents perceived sexual harassment as normal to leave with.24 this could be one of the reasons religious persons under the pressure of sexual harassment in the workplace could easily concede without due recourse to his or her faith. apparently, societal and customary factors have been discussed as they fuel sexual harassment in the society. other factors could also make people of faith compromise in the face of sexual harassment in the workplace; these factors are fear of the unknown, retaliation, job termination, peer pressure, loss of livelihood, power differences, poor economy structure, family pressure and not having any religious faith. these factors shall be discussed further, shorty. the societal, religious, economic and customary attributes boil down to the reasons people of faith see religious activities as a reparation channel after succumbing to sexual harassment, as opposed to exercising a level of faith in their religious doctrine to prevent the act from happening at all. several incoherent efforts have been put in place by the government to curb sexual harassment, but it remains prevalent25 and that is why this discourse is apt, to address the issue of sexual harassment from the faith and victim perspective. it encourages would-be victims to leverage on faith as a means of strength and resistance, rather than cheaply succumb, in expectation of being consoled by faith thereafter. 4. effect of faith in decision-making the human nature is gifted, heavily endowed, and capable of many possibilities.26 one of such possibilities is that of spirituality, with a concern for what is unseen and intangible, as opposed to physical or mundane, in other words, developing faith in a deity, a perceived higher being, or an object of worship as the case may be. for instance, the christian faith proposes that all of creation was made by god, and to him they owe allegiance and worship.27 by this it is expected that all decisions made or to be made by an adherent will be influenced by his/her faith. this shall be discussed presently by appraising the interaction of spirituality and sexual relations, faith as a window of opportunity, among a few other pertinent concerns. a) spirituality and sexual relations: it is intrinsic in humans to be both spiritual and sexual. in this discourse, the spiritual relates to ‘deep feelings and beliefs, especially religious beliefs.’28 it could also relate to ‘people’s thoughts and beliefs, rather than to their bodies and physical surroundings.’29 on the other hand, sexual describes a relationship to ‘the instincts, physiological processes, and activities connected with physical attraction or intimate physical contact between individuals.’ the christian perspective to sexual relations may be qualified as stringent, strictly confining liberty for sexual intimacy to the age-old institution of marriage between a man and a woman.30 any sexual relation outside this is forbidden. with regards to sexual harassment in the workplace as touching the spiritual or person faith, this discourse concedes that the victim of such harassment does not have control over the action or inaction of the sexual predator, but surely does have control to a reasonable extent over acceding to such proposition of harassment. the culmination of the harassment is usually through a progression, the span of which may differ from one case to another. within the span of the envisaged progression, it is opined that the would-be victim has a couple of ‘windows of opportunities’ to make a crucial decision of whether or not to succumb to the harassment; particularly because the harassment is being perpetrated in the work environment. b) the window of opportunity: in this discourse, the window of opportunity for a would-be victim of sexual harassment in the work environment is that space of time available to such victim to decide whether to succumb to the impending harassment or to dare confront it. from the christian perspective, such victim is encouraged and expected to assume an uncompromising posture of valiantly resisting such harassment for certain reasons, some of which includes: 1. avoidance of sin: entrenched in the canonical seventh commandment is the requirement that ‘you shall not commit adultery.’31 adultery describes the voluntary sexual relations between a married person and 24 ibid., ‘the experience of out-of-school teenagers in benin city, nigeria’, 9 african journal of reproductive health, 118, 125 (2005). 25 aina-pelemo adetutu deborah, mehanathan m.c. kulshrestha pradeep, & aina, iseoluwa t., ‘sexual harassment in the workplace: case study of the nigerian legal sector’, 86 journal of law policy and globalization, 121, 129 (2019). 26 human nature, stanford encyclopedia of philosophy. plato.stanford.edu (mar. 15, 2021, n.d.), https://www.plato.stanford.edu/entries/human-nature/ 27 the epistle of paul to the colossian, chapter 1 verse16 (authorized king james version, international bible associations, texas, 1195 (1974). see also michael sweeny & lesley chapel, what is human nature? –definition, theories & examples. study.com (feb. 16, 2016, n.d.), https://study.com/academy/lesson/what-is-human-nature-definition-theoriesexamples.html 28 spiritual, dictionary.cambridge.org (n.d.), https://dictionary.cambridge.org/dictionary/english/spiritual 29 ibid. 30 the gospel according to st. mark, chapter 10 verse7 (supra, note 27), 1020; and the epistle of paul to the ephesians, chapter 5 verse 31 (supra, note 27), 1190). see also opadere, o.s. and akande l.b., biblical and judicial law: the search for marital and societal stability in nigeria, in aderibigbe i.s., omotoye r.w., and akande l.b. (eds.) contextualizing africans and globalization: expressions in socio-political and religious contents and discontents pp.175-188 (lexington books, usa, 2016). 31 the second book of moses—exodus, chapter 20 verse 14 (supra, note 27), 87. https://www.plato.stanford.edu/entries/human-nature/ https://study.com/academy/lesson/what-is-human-nature-definition-theories-examples.html https://study.com/academy/lesson/what-is-human-nature-definition-theories-examples.html https://dictionary.cambridge.org/dictionary/english/spiritual aina-pelemo & opadere: the implications of faith-loss in the ensnarement of sexual harassment in the workplace page | 24 somebody other than his/her spouse.32 it is important to consider sexual harassment in the context of adultery, because married individuals also combat with the menace in the workplace. implicitly, it is expected of a married christian to consider sexual harassment as a lure to adultery, which should be vehemently resisted. similar to this is the admonition to ‘flee fornication.’33 fornication is described as ‘sexual intercourse between two consenting adults who are not married to each other.’34 on the whole both adultery and fornication address some sexual misnomer which the christian adherent is required to avoid by all means, whether the manifestation is in the form of sexual harassment or any other form, because it does harm to and violates the doers own body.35 2. ownership and purpose: by the christian biblical doctrine, chastity conveys an expression of loyalty to jesus christ and acknowledgment of his ownership of the adherent. by this the human body, which is deemed to have been purchased by god at a price, is regarded as the temple of the holy spirit.36 implicitly, in bearing this ownership concept in mind lays the pathway to the fulfillment of purpose for which a christian adherent accepted the faith in the first place.37 in essence, where ownership is lost, purpose fails. 3. punishment for condescending: christians believe that only individuals with clean hands and pure hearts (symbolic of holy and right living) can have access to god.38 furthermore, it is also believed that those who indulge fornication and adultery will be severed from, and have no share in the kingdom of god.39 therefore, based on the foregoing admonition and instructions, the christian is expected to take a firm stand against sexual harassment in the workplace or anywhere else; whether it qualifies as adultery, fornication, or any other vice. however, from the vantage point of the authors,40 it is certain that some christians still fall prey to sexual predators in the workplace, from which they incurred indelible scars. it is observed that some of the victims succumbed to the harassment by reason of varying negligible factors, despite being people of faith in christianity. owing to the factors, it is difficult and may even be inappropriate to blame the victim, hence this perspective to reinforcing courage in would-be victims for resistance in the face of harassment. 5. factors occasioning succumb as earlier mentioned, the observed factors range from threat of losing job, fear, poverty, to ordinate/noble ambition, among others. to some, the factors may not be tenable or weighty enough to warrant succumbing to such vice as sexual harassment; but to the victim, it may be a matter of life and death in the desperation for survival; therefore, the factors are worth examining. 1. fear and threat of losing a job are usually intertwined. fear of the consequences of losing a job, voluntarily or involuntarily, in the face of sexual harassment in the workplace, it is a real one. for adherents to the christian belief, fear is unacceptable, as repletely admonished by the scriptures.41 it is particularly admonished that mortals should not be feared, as fearing them ensnares the victim of such fear. rather, christians are required to put their trust and confidence in god,42 even in such threatening and fearsome situation as foisted by sexual harassment in the workplace. in essence, for people of the christian faith, fear and threat of losing a job are not sufficient factors enough for which to succumb to harassment in the workplace. 2. poverty, particularly in an emerging economy, is a factor that cannot be denied or glossed over.43 for an individual who understands the reality of poverty, seeking to preserve a perceived secure job, or any job whatsoever that strives to provide sustenance, may be worth every effort, even if enduring the adversities and 32 encarta dictionaries, microsoft® encarta® 2009. © 1993-2008 microsoft corporation. 33 the first epistle of paul to the corinthians, chapter 6 verse 18 (supra note 27), 1160. 34 encarta dictionaries (supra note 32). 35 supra note 33. see also ann f. pritt, healing the spiritual wounds of sexual abuse, the church of jesus christ.org (apr., n.d., 2001, n.d.), https://www.churchofjesuschrist.org/study/ensign/2001/04/healing-the-spiritualwounds-of-sexual-abuse?lang=eng 36 supra note 33. 37 supra note 27. 38 the book of psalm, chapter 24 verses 3-5 (supra note 27), 608-609. 39 the first epistle of paul to the corinthians, chapter 6 verse 9-10 (supra note 27), 1160. 40 drawing from his years of experience as a law teacher and christian counsellor. 41 the book of the prophet isaiah, chapter 35 verse 4 and chapter 41 verses 10-13 (supra note 27), 742 & 748. 42 the proverbs, chapter 29 verse 25 (supra note 27), 698. 43 based on the data produced by the nigerian national bureau of statistics in 2020, 40% or 83 million nigerians were said to live in poverty. see poverty & equity brief (africa western & central) nigeria, world bank.org (apr. n.d., 2021, n.d.) https://www.databank.worldbank.org/data/download/poverty/987b9c90-cb9f-4d93-ae8c 750588bf00qa/am2020/global_poveq_nga.pdf and nigeria’s poverty profile is grim. it’s time to move beyond handouts, the conversation, (jun. 27, 2021, 10.47 am). https://www.theconversation.com/nigerias-poverty-profileis-grim-its-time-to-move-beyond-handouts-163302 https://www.churchofjesuschrist.org/study/ensign/2001/04/healing-the-spiritual-wounds-of-sexual-abuse?lang=eng https://www.churchofjesuschrist.org/study/ensign/2001/04/healing-the-spiritual-wounds-of-sexual-abuse?lang=eng https://www.databank.worldbank.org/data/download/poverty/987b9c90-cb9f-4d93-ae8c%20750588bf00qa/am2020/global_poveq_nga.pdf https://www.databank.worldbank.org/data/download/poverty/987b9c90-cb9f-4d93-ae8c%20750588bf00qa/am2020/global_poveq_nga.pdf https://www.theconversation.com/nigerias-poverty-profile-is-grim-its-time-to-move-beyond-handouts-163302 https://www.theconversation.com/nigerias-poverty-profile-is-grim-its-time-to-move-beyond-handouts-163302 african customary and religious law review 1 (2020) page | 25 scars of sexual harassment in the workplace. nevertheless, the christian belief holds a contrary view to this. it is expected that adherents seek to please god first, and make living by his righteous standards a first priority; with an assurance that they shall be divinely provided for.44 to this effect, scripture is replete with testimonies of such interventions for supernatural provision.45 in other words, the christian creed is of the view that poverty (or any adversity) is not tenable enough to make an adherent succumb to sexual harassment in the workplace or elsewhere.46 3. ordinate/noble ambition is a legitimate factor that may render a would-be victim of sexual harassment in the workplace to succumb to a perpetrator of the vice. it is worth recalling that the universal declaration of human rights reaffirmed commitment to ‘faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom….’47 by the provisions of the declaration, it is clear that the innate rights of all mortals to aspire to ordinate or noble ambitions is upheld and reinforced. certain privileged interactions of the second author with a few individuals who have been victim of sexual harassment in the workplace revealed that the desire to preserve an ordinate and noble ambition to excel in their chosen professional endeavour, vis-à-vis the opportunity of being in a work establishment that appears a prospective springboard to actualizing such ambition if only they endure, occasioned their succumbing to such harassment. in the end, they still had to disengage from such abusive establishment, as the only bid to save their faith and human dignity. christianity, however, does not consider ambition, no matter how ordinate or noble, worth making one succumb to sexual harassment. in fact, it is of the view that for a gain of the whole world it is not worth mortgaging ones soul.48 in other words, ordinate/noble ambitions ought to be pursued and built upon the timeless virtues of dignity, self-worth, and faith, eschewing the dehumanizing compromise of sexual harassment. 6. faith as ‘sword’ and ‘shield’ for adherents of the christianity, faith or spirituality is expected ultimately to be a ‘sword’ and ‘shield’. sword in the sense that; the conviction or belief of the adherents is meant to confront any and everything that is considered negative as well as adverse to the creed of the belief.49 in essence, the faith held by adherent is a sword with which they are expected to engage in ‘warfare’ with anything that contradicts the virtues and values of what they believe; and by which they are also required to teach such violators to align with their belief. in the same vein, the faith of a christian is meant for a defense, in the sense that it constitutes a protective hedge around the adherent50 against all negative, compromising, and detrimental infiltrations like a lure to sexual harassment and the likes. in other words, a christian faced with the vice of sexual harassment in the workplace is expected to appropriate the double-edged benefit of his/her faith in defending the integrity and nobility of the faith, and to confront the ill, even if it means exercising the extreme option of walking away from such toxic work environment, rather than succumb. 7. conclusion this discourse has endeavoured to carefully look at the subject of sexual harassment in the workplace, with particular emphasis on the ‘narrow strip’ of its impact on would-be victims who are people of faith; with the christian faith chosen for specific evaluation. faith is underscored as a sword and shield for any would-be victim to deploy in the face of the vice of sexual harassment, whenever it attempts to manifest. by this, the responsibility and rein are snatched away from the harasser and are now lodged with the supposed harassed. to a huge extent, many people of faith who have been victim of this harassment were said to have been as a result of their loss of faith in the potency of the faith they profess. faith ought not to be resorted to only for reparation after the damage is done; but should be as a first resort, in order to avert the incidence of sexual harassment. as long as the harassment is not rape, then faith can be deployed to overcoming the darts of harassment. in the worst case scenario, by the same faith professed, a would-be victim should be bold and courageous enough to walk away from a toxic work environment riddled with the vice of sexual harassment, rather than wait, at the risk of bearing the hurt and scars of a lifetime. this article concludes that people of faith wouldbe victims of sexual harassment in the workplace are not totally helpless if they are sensitive to faith, except they opt to be helpless. the authors therefore recommend that everyone in the workplace should be sensitive to their faith. no one is invulnerable to sexual harassment, and faith is one of the significant means of preventing it, rather than a coping mechanism after the incident. 44 the gospel of st. matthew, chapter 6 verse 33 (supra note 27), 975. 45 the book of psalm, chapter 37 verse 25 (supra note 27), 616. 46 for example, in an interaction on 21 september 2016 between the first author (who herself is a survivor of sexual harassment) and a christian lady who also was victim, the lady said she ought to have relied on her faith for financial assistance rather than the man who sexually harassed her. she stated further that as soon as she fell for the antics and the harasser gave her the needed money, god provided more than the amount she was in need of through a legitimate (miraculous) means; thereby proving to her that he (god) is more than sufficient to provide, if only she had exercised her faith. 47 universal declaration of human rights 1948, ‘preamble’. 48 the gospel of st. matthew, chapter 16 verse 26 (supra note 27), 988. 49 the second epistle of paul to the corinthians, chapter 10 verse 3-6 (supra note 27), 1177. 50 the book of psalm, chapter 91 verses 1-3 (supra note 27), 645. acarelar 2 (2021) page | 35 the protection of the rights of women in africa: challenges and prospects* abstract for the past three decades there have been renewed calls from civil society activists and the international community to protect women and uphold their rights across the african continent in accordance with myriad international treaties, regional treaties and domestic legislation. it is worthy of note that a large number of african governments have ratified at least one of the international or regional conventions or protocols on women’s rights. the doctrinal research method was adopted and the data collected were both primary and secondary comprising of both hard copies and online source materials. this paper examined the mechanisms put in place to protect the rights of women in africa and discovered that notwithstanding the measures, there exist huge challenges for women engaged in the defence of human rights on the continent as the lofty values enshrined in law are often times ignored in practice. it was recommended that the african union and member states should ensure the ratification and implementation of the laws and practices that promote the rights of women without reservations and the civil society should introduce initiatives that would raise awareness about women rights. keywords: protection, gender, rights, human rights, and women. 1. introduction there is a growing acceptance and recognition of the important role women play in the development process. both men and women are entitled on an equal footing to the full protection of their rights and freedoms because they are human beings.1 ‘women rights’ simply refers to claims that women have to something that can be exercised and enforced under a set of grounds or justifications without interference from others. women are crucial to the success of family planning programs; bear much of the responsibility for food production and account for an increasing share of wage labour in africa. irrespective of their significant contributions, women continue to face formidable social, economic and political barriers.2 despite the tendency to treat women as a homogenous and unified group, they hardly constitute a monolithic group with identical problems. women live in countries with diverse historical experience and development levels, and within each country, the issues pertaining to women vary according to race, ethnicity, class, religion, tribe, residence, and educational levels. despite these differences, the common denominator of women in all societies, including the industrialized ones, is their subordinate status. women compose the poorest and the least powerful segment of the population throughout the world. the exploitation or oppression of african women is even more intense due largely to the legacy of western imperialism, which culminated in economic dependency and crises. also, the economic and political structural changes introduced by colonial powers, and later imposed by international lending and development agencies have further widened the gender gap in these countries. unrecognized as full partners either in the family or in society, women have been denied equal access to education, job training, employment, health care, ownership, and political power.3 the adoption of the protocol to the african charter on human and peoples’ rights on the rights of women in africa4 (the maputo protocol) marked a new era for african women.5 the maputo protocol set the standards for the protection of women’s rights in africa. for african women, the protocol has come to symbolize the significant milestone for women’s rights since the creation of the organization *by eric chigozie ibe, secretary, nigerian bar association, abuja branch (unity bar), suite b-59, efab mall, off ahmadu bello way, area 11 garki, abuja. email: ericibe.c@gmail.com. phone no.:08161304100. 1 i okagbue, women’s rights are human rights (nigerian institute of advanced legal studies 1996) 1. see also ikenga oraegbunam, ‘equity, not equality as sameness’, in n. ezenwa-ohaeto (ed), power, gender relations, character and nation building, awka, fab anieh nig. ltd., 2015, pp. 63-79. 2 f anunobi, ‘women and development in africa: from marginalization to gender inequality fredoline anunobi’ [2002] (2) (2) african social science review, 41. 3 ibid. 4african union, protocol to the african charter on human and people’s rights on the rights of women in africa, 11 july 2003. 5the maputo protocol was adopted by the african union heads of states on 11 july 2003 and came into force on 25 november 2005. mailto:ericibe.c@gmail.com ibe: the protection of the rights of women in africa: challenges and prospects page | 36 of african union (oau) now the african union (au).6 it was the culmination of persistent advocacy efforts and demands from women’s rights organisations and gender activists who called on the au to adopt an african human rights instrument that would address the persisting women’s rights issues.7on january 2016, the assembly of the heads of states and governments of the african union declared 2016 as the africa year of human rights with a particular focus on the rights of women.8 this paper is set to explore the status of african women in terms of protection of their rights, the legal framework for the protection of african women, the barriers impeding the actualisation of the full potential of women in african societies, and some viable recommendations to serve as a panacea to the identified challenges. 2. constitutional, legal and institutional frameworks for the protection of rights of women in africa the heads of states and governments of the au have over the years developed frameworks for the promotion and protection of human rights, particularly women’s rights. these frameworks have taken into consideration the challenges women in africa face and seek to address them comprehensively and systematically. the frameworks complement international human rights standards and frameworks on women’s rights such as the convention on the elimination of all forms of discrimination against women (cedaw), the declaration on the elimination of violence against women,9 the beijing platform for action,10 the international conference on population and development programme of action.11 however, this paper would discuss only the regional mechanisms taking into consideration the constitutional, legal and institutional frameworks. constitutional framework the constitutive act of the african union12 is the constitutional foundation of the au which calls on the member states and the union to promote human rights and gender equality.13 in 2002, the au heads of states and governments adopted the 50/50 gender parity principle14 to ensure equal representation of women and men in all au decision making structures. the au gender parity principle has set the regional standard for women’s participation in decision making and continues to inform african union member states to achieve a 50/50 parity at the national level. legal framework african charter on human and peoples’ rights the african charter on human and peoples’ rights was the first legal framework on human rights in africa. it prohibits discrimination based on multiple grounds including sex15 and further calls on state parties to eliminate every discrimination against women and also ensure the protection of the rights of women as stipulated in international declarations and conventions.16 these provisions stipulate the basis for the protection of women’s rights and recognize other key international treaties that outline women’s rights. 6the organization of african unity (oau) was established on 25 may 1963 and was later replaced by the african union in 2002. 7african union commission, women’s rights in africa: challenges, opportunities and proposals for accelerated implementation (african union 2018). 8nd zuma and zr al hussein, women’s rights in africa (united nations human rights commission 2016) 8. 9un general assembly, declaration on the elimination of violence against women, 20 december 1993, a/res/48/104. 10united nations, beijing declaration and platform of action, adopted at the fourth world conference on women, 27 october 1995. 11un population fund (unfpa), report of the international conference on population and development, cairo, 5-13 september 1994, 1995, a/conference 171/13/review 1. 12organization of african unity (oau), constitutive act of the african union, 1 july 2000. 13article 4 (l) of the constitutive act. 14during the inaugural summit of heads of states and governments of the african union held in durban, south africa in 2002. 15article 2 of the african charter on human and peoples’ rights. 16article 18 (3) of the african charter on human and peoples’ rights. acarelar 2 (2021) page | 37 protocol to the african charter on human and peoples’ rights on the rights of women in africa (maputo protocol) the maputo protocol was adopted on 11th july, 2003 to complement the african charter and further expound on women’s rights in africa. the protocol has almost identical provisions with cedaw. it requires states to take positive action to address inequalities between women and men and to ensure women are able to exercise and enjoy their rights.17 the protocol also lays out states obligations to the right to dignity; the right to life, integrity and security of the person; protection from harmful practices; rights in marriage, which include entitlement to property and the custody and guardianship of children; protection from child, early and forced marriages; the right of access to justice and equal protection of the law; the right to participate in political and decision-making processes; the right to peace; the rights to adequate housing, food security, education, and equality in access to employment; reproductive and health rights, including control of one’s fertility; and the right to be protected against hiv infection. the protocol also includes specific provisions on the protection of rights of women with disabilities.18 protocol on gender and development the southern african development community (sadc), made up of 15 southern african and island nations, adopted a protocol on gender and development 2008, which espouses the basic principles of the maputo protocol and sets specific goals to be achieved by 2015, such as to enshrine gender equality and equity in all sadc constitutions and to ensure that these rights are not compromised by any provisions, laws or practices. the protocol also enjoins state parties to put in place affirmative action measures for women, ensure equal access to justice and protection before the law as well as eliminate gender based violence.19 african charter on democracy, elections and governance (acdeg) the acdeg20provides a normative framework for the respect and promotion of good governance and democracy in africa. it calls for state parties to promote gender equality and balance in all governance and development initiatives.21 the acdeg specifically calls on state parties to promote gender equality in public and private institutions thus further reinforcing women’s rights to political participation and decision making as noted in the maputo protocol. solemn declaration on gender equality in africa in july 2004, the au adopted the solemn declaration on gender equality in africa (sdgea), in which all au member states committed to sign and ratify the maputo protocol by the end of 2004 and to harmonize their national laws with the protocol and international and regional commitments for the promotion of gender equality.22the sdgea calls for the implementation of gender parity within the au structures and organs as well as at the national level. institutional framework african commission on human and peoples’ rights the african charter also established the african commission on human and peoples’ rights as the treaty monitoring mechanism which includes special mechanisms such as the special rapporteur on rights of women in africa.23 17 article 2 of the maputo protocol. 18 nd zuma and zr al hussein (n-8) 13. 19civicus, report on the challenges faced by women in civil society in africa (world alliance for citizen participation 2011) 10. 20adopted during the 8th ordinary session of the assembly of heads of states and governments of the african union held in addis ababa, ethiopia on 30th january 2007. 21article 2 of the african charter on democracy, elections and governance. 22in 2004, at the time of adopting the maputo protocol and the sdgea, morocco’s membership to the african union was not reinstated. south sudan was also not yet an independent state putting the au membership at 53 countries in 2004. 23 to become more abreast with the work and mandate of the special rapporteur on women’s rights in africa visit <http://www.achpr.org/mechanisms/rights-of-women/>. ibe: the protection of the rights of women in africa: challenges and prospects page | 38 african governance architecture (aga) in 2010, the au heads of states and governments established the aga as the overall political and institutional framework for the promotion of human and peoples’ rights, good governance and democracy in africa. it seeks to compliment au member states in achieving their commitment, under the various au policy and legislative frameworks such as the au gender equality and women’s rights frameworks including the maputo protocol, sdgea, au gender policy. in order to give effect to aga, the african union commission (auc) established the african governance architecture platform to facilitate information sharing, dialogue, synergies and joint actions between the various au stakeholders.24 african union specialized technical committee on gender equality and women’s empowerment the african union specialized technical committee on gender equality and women’s empowerment was inaugurated in april 2006 as an advisory committee to the chairperson of the au commission and the commission as a whole, on issues of gender and development. the auwc is composed of african women proposed by the directorate of women, gender and development (wgdd) and appointed by the chairperson of the au commission, taking into account the principle of equitable regional representation and rotation and representation of young women and women with disabilities. the auwc works closely with the wgdd, which is its secretariat. some members have represented the committee on peace missions jointly with the wgdd.25 directorate of women, gender and development (wgdd) the directorate of women, gender and development (wgdd) promotes gender equality on the continent and within the au. it designs programs and projects based on policies adopted by member states. the directorate has two divisions: gender policy and development division (gpdd) and gender coordination and outreach. it also acts as the secretariat for the specialized technical committee on gender equality and women’s empowerment.26 3. challenges and discriminatory practices affecting the rights of women in africa women face discrimination in all spheres of life due to social norms that are entrenched within cultural, legal, political, social, and economic ideologies. this promotes inequality and encourages normalization of discrimination based on stereotypes and myths that infringe on the rights of women and girls. in africa, women continue to face discrimination in several areas: marriage, property ownership and inheritance, participation in political and decision making; accessing educational and economic opportunities, accessing social services and protections, and exercising their health and reproductive rights. women are also mostly victims of insecurity, conflict and gender based violence. in this regard, the section of this paper would discuss the discriminatory practices and challenges affecting african women in maximising their potential in the society. poverty women in africa are making substantial contribution to africa’s development. women are more economically active in africa particularly as farmers, workers and entrepreneurs than anywhere else in the world. they perform the majority of agricultural activities, and in some countries, make up some 70 per cent of employees.27 women are also central to the household economy and the welfare of their families, and they play a vital leadership role in their communities, yet women often have limited access to credit facilities and market. women and girls globally are disproportionately affected by poverty due to economic and social exclusion in society that has negative impacts on their quality of life. in africa, women and girls have challenges in accessing education and training opportunities, generally are paid less than their male counterparts, have limited access to nutritious sources of food, clean water, 24african union commission, women’s rights in africa: challenges, opportunities and proposals for accelerated implementation (african union 2018) 5. 25 au, organs of the african union (african union 2018) <http://www.au.int/en/organs/commission> accessed on 19th december, 2020. 26 au (n-25). 27 nd zuma and zr al hussein (n-8) 38. acarelar 2 (2021) page | 39 sanitation adequate shelter, as well as have limited access to resources including property, land and access to credit denying them economic opportunities to improve their lives.28 discriminatory laws it is now widely recognized that gaps in legislations and polices as well as lack of implementation and enforcement of legislation perpetuates and reinforces de jure and de facto discrimination against women. plural legal systems with various customary laws on personal status and family continue to provide the basis for discrimination against women in law. while plural legal systems are often adopted as a way of acknowledging cultural diversity, its application can be prejudicial to women. for example, in some countries such as nigeria where adultery is penalized, laws expressly discriminate against women: either solely penalizing women for committing adultery or penalizing women more severely than men. even where the law is gender-neutral, criminal adultery provisions have discriminatory effects on women in practice, for instance women are charged and found guilty more frequently than their male counterparts.29discriminatory legislation particularly in family, civil, penal, labour and commercial laws or codes, or administrative rules and regulations still persist. even where legal reforms have taken place, they are often not enforced and institutional mechanisms to promote the human rights of women are often underfunded. indiscriminate marital norms and practices marriage can reinforce discriminatory social, religious, and cultural norms that deny women the ability to exercise their rights and freedoms. the role of women in the family has generally been under patriarchal control in cultures and religions that subject women and girls to forced and/or early marriage and discrimination in a number of areas of family life, such as consent to enter into marriage, dowry obligations, the right to possess and manage property, sexual relations, requirements regarding modesty and freedom of movement, guardianship and custody of children, divorce and division of matrimonial assets, the punishment of adultery, the right to remarry following dissolution of the marriage or death of the husband, the status of widows and inheritance. in addition, women and girls are generally not treated equally in families with regard to the division of rights and responsibilities. discrimination against women and girls in the family and in marriage affects all aspects of their lives.30 countries like burundi, guinea, drc, kenya, mali, sudan and tanzania all have family and personal codes that discriminate against women in issues of marriage.31 whereas the maputo protocol is clear on women’s rights in marriage,32 women continue to suffer various forms of discrimination in marriage. for example, the marital laws in algeria33 restrict women’s rights in marriage by permitting polygamy, requiring authority from a male guardian, barring muslim women from marrying non-muslim men, and restricting grounds for divorce for women. in the democratic republic of congo (drc)34 and guinea,35 the family law gives authority to the husband over his wife and he can restrict the wife’s professional and social engagement and makes decisions on their matrimonial home as well as authorize all contractual matters. in countries where polygamy is practiced and is sanctioned by law, women’s rights in marriage continue to be undermined. these restrictions placed on women and enforced by the law prevent women from participating fully in family life and in decision making rendering them vulnerable to exploitation and abuse. denial of access to education another inhibiting factor is that women in africa continue to be denied access to education. disparities between girls and boys start in primary school and the differences widen up through the entire educational system. numerous hurdles continue to hamper the expansion of education in africa. 28 african union commission, women’s rights in africa: challenges, opportunities and proposals for accelerated implementation (african union 2018) 22. 29human rights council, study on the phenomena of torture, cruel, inhuman or degrading treatment or punishment in the world, including an assessment of conditions of detention, a/hrc/13/39/ add 5 (2010), paragraph 219; secretary general pathways to conditions and consequences of incarceration for women a/68/340 (2013 ), paragraph 16. 30the united nations working group on discrimination against women in law and practice. 31 nd zuma and zr al hussein (n-8) 40. 32article 6 (f)-(j) and 9 of the protocol to the african charter on human and peoples’ rights on the rights of women in africa. 33the family code of 1984 modified by ordinance no 05-02 of 27th february, 2005. 34articles 444, 448, 450, 454 and 497 of the democratic republic of congo’s family code of 1987. 35articles 328 and 331 of guinea’s civil code. ibe: the protection of the rights of women in africa: challenges and prospects page | 40 austerity programmes introduced in many countries during the 1980s constrained educational spending. governments had little money to maintain existing schools or build new ones. at the family level, households that became poorer often faced the stark choice of deciding whom to send to school – and often it was the girl who stayed at home. costs of tuition, the requirement to wear uniforms, long distances between home and school, inadequate water and sanitation, all help to restrict girls’ access to education.36 denial of inheritance and property rights women’s claims to land bring into question their capacity to enjoy equal rights in every sphere civil, political, economic, social and cultural. women’s rights to equal inheritance, to equal shares of matrimonial property, to recognition as legitimate and legal owner of land and property, who can buy, sell, lease and raise loans on the basis of that property, are denied all over the world, in a wide range of cultures and communities.37the obstacles which prevent women’s access to, control and use of land and other productive resources often include inadequate legal standards and/or ineffective implementation at national and local levels, as well as discriminatory cultural attitudes and practices at the institutional and community level. women and girls in africa have often been left out of inheritance regimes and many traditional, customary and religious laws often prevent them from inheriting their parents’ or spouses’ properties, relegating them to a life of insecurity and poverty. secure land rights confer direct economic benefits because land is a key input into agricultural production and enterprise development; it can be used as a source of income from rental or sale; and it can provide collateral for credit where strong, well-regulated land markets and credit infrastructures exist.38 gender based violence and victims of insecurity and conflicts sexual and gender based violence (sgbv) seriously inhibits the ability of women to contribute to, and benefit from development and to enjoy their rights, in private or public life, in times of peace or during situations of armed conflict. sgbv is more common where patriarchal gender norms are entrenched and where social and cultural norms contribute to the acceptance of violence against women and girls or where there are formal or discriminatory provisions in domestic legislation relating to sex and gender and no specific measures to address or prevent violence against women.39 women participate in various capacities during conflict and post-conflict, including as care-takers, combatants as well as peace makers. despite women’s contributions in resolving conflict in their communities and fostering peace, during times of conflicts, transition and post conflict, women and girls continue to face an increase in sgbv as well as other human rights violations. for example, women fall victims to violence before and during the conflict, inthe process of fleeing, and after the conflict as refugees/internally displaced persons and asylum seekers. further, there is still a striking absence of women from formal peace negotiations.40for example, women in somalia were not represented in negotiation teams during the declaration on cessation of hostilities and the structures in 2002 and in sierra leone no women were represented in the negotiating team during the lomé peace agreement and only made up 20% of witnesses.41 lack of economic opportunities and access to finance in order to enable women to escape poverty, development policies ought to be put in place to emphasize their contributions to the economy. irrespective of the fact that women make up a significant proportion of the economically active proportion, their contribution is not fully recorded because they are mainly engaged in family farming or in the informal sector. in other cases, what they do as, such as household 36 g mutume, african women battle for equality (african renewal 2005) 4 <https://www.un.org/africarenewal/magazine/july­2005/african­women­battle­equality> accessed on 13th december, 2020. 37 hrlibrary, economic, social and cultural rights of women (hrlibrary 2014) 4 <http://hrlibrary.umn.edu/edumat/ihrip/circle/modules/module4.htm> accessed on 13th december, 2020. 38usaid land tenure, property rights, and gender briefing paper no 7<http://www.climateinvestmentfunds.org/sites/default/fi les/ knowledgedocuments/usaid_land_tenure_gender_brief_0.pdf> accessed on 19th december, 2020. 39un human rights council, report of the special rapporteur on violence against women, its causes and consequences, 19 april 2016, a/ hrc/32/42. 40un women, women’s participation in peace negotiations: connections between presence and influence 2012, 3 <http://www.unwomen.org/~/media/headquarters/attachments/sections/library/publications/2012/10/wpssourcebook-03awomenpeacenegotiations-en> accessed on 19th december, 2020. 41 ibid. acarelar 2 (2021) page | 41 work, is not considered an economic activity. in agriculture, sub-saharan africa’s most vital economic sector, women contribute 60-80 percent of labour in food production, both for household consumption and for sale. but while they do most of the work, they lack access to markets and credit. in uganda, women make up 53 percent of the labour force, but only sell 11 percent of the cash crops.42 providing women with greater access to credit and other sources of financing can help reduce economic disparities. despite their active contribution to the economy, women tend to engage in ‘low value-added occupations’ that do not generate substantive economic return and that do not offer them social protections. despite the fact, society assigns them as the primary care givers that on average spend twice as much time as men do on domestic work (child and elderly care, cooking, cleaning, and fetching water and wood)43 reducing their time to invest in their chosen career or field and to increase their earnings including saving for retirement. genital mutilation/sexual and reproductive rights fgm is widely understood as a violation of women and girls’ rights which is embedded in discriminatory cultural beliefs and practices. it violates the right to security and physical integrity, right to health, the right to be free from torture, and cruel and degrading treatment. according to the world health organization (who), more than 200 million girls and women alive today have undergone female genital mutilation (fgm) in 30 countries in africa.44 for many women in africa especially those in rural areas, access to adequate and affordable reproductive health services is difficult due to limited health providers or where they exist, they are often under resourced and understocked. high rates of maternal mortality and morbidity on the continent can be attributed to proximal determinants such as haemorrhage, sepsis and unsafe abortion, as well as more distal determinants related to gender inequality. this includes a lack of autonomy of women to make informed decisions about whether to become pregnant in the first place or to seek medical care, a lack of access to contraception, as well as a lack of education including access to comprehensive sexuality education.45 problem with nationality and citizenship in a number of countries, nationality laws still do not grant women equal rights with men to acquire change and retain their nationality and some laws contain discriminatory provisions that do not allow women to transfer nationality to their spouses on the same basis as men. for instance, several countries including burundi, liberia, sudan and togo have enshrined gender equality in their constitutions but have yet to reform their nationality laws. in lesotho, nigeria, malawi, ethiopia, central africa republic, cameroon, benin and guinea, women are not allowed to transmit nationality to their spouses on the same basis as men. in madagascar, swaziland, mauritania, sierra leone and somalia women cannot confer nationality onto their spouses.46burundi, guinea, democratic republic of congo (drc), kenya, mali, sudan and tanzania all have family and personal codes that discriminate against women in issues of marriage. exclusion in political participation/influencing policy since political independence, women have been excluded from most of the important political positions in african countries. for example, there have been no women heads of state, and as of the mid-1980s, women held only 6 percent of the legislative positions in africa. at cabinet-level or equivalent positions, only 2 percent were held by women. in half of africa’s countries, there was no woman at all in cabinet-level positions. women were better represented at local levels of government.47 as of 2017, women in africa made up only 23.6% of parliamentarians48 across sub-saharan african countries, a far cry from the au gender parity of 50/50 representation which was adopted by the heads of states 42g mutume (n-36) 5. 43undp, accelerating gender equality and women’s empowerment in africa: africa human development report 2016, 6. 44 who, media centre factsheets (world health organisation) <http://www.who.int/mediacentre/factsheets/fs241/en/> accessed on 19th december, 2020. 45nd zuma and zr al hussein (n-8) 22. 46duru achibe, national rights of women in sub-saharan africa (equanationalityrights.org) <http://equalnationalityrights.org/countries/sub-saharan-africa> accessed on 19th december, 2020. 47f anunobi, ‘women and development in africa: from marginalization to gender inequality’ [2002] (2) (2) african social science review, 54. 48inter-parliamentary union & un women (2017), ‘women in politics 2017 infographics’ <https://beta.ipu.org/resources/publications/infographics/2017-03/women-in-politics-2017> accessed on 19th december, 2020. ibe: the protection of the rights of women in africa: challenges and prospects page | 42 and governments of the african union.49 women in africa experience challenges in participating in decision making due to social norms and religious and cultural factors that reinforce gender discrimination and exclusion from political life. additionally, women face harassment, intimidation, and violence including sexual violence from voters, political candidates, political party officials, rival politicians, and the general public dissuading many from engaging in politics.50 4. prospects on the promotion and protection of rights of women in africa despite the challenges facing african women as discussed above, there are nevertheless significant improvements made towards protecting and promoting the rights of women in the continent. firstly, several countries have amended their laws or abolished laws that discriminate against women on the basis of sex. sierra leone has recently removed discriminatory clauses against women in its constitution. a number of countries are also using temporary special measures as one of the ways to accelerate women’s participation in public bodies especially the legislature, a requirement under article 2 of the maputo protocol.51 this has been particularly successful; the continent has the highest participation of women within their legislatures globally.52 secondly, to a reasonable extent there has been educational parity in some african countries. namibia, whose government has been working to improve the status of women for nearly 30 years, has achieved gender parity on education.53 zimbabwe’s gps on education is 0.94, not far from parity; the country has the highest availability of textbooks in africa, achieved through sustained investment. burundi, chad, côte d’ivoire, mozambique, niger, and togo have narrowed the gender gap in education since 2015 albeit marginally by 1 percent to 3 percent a year. pushing hard for equal education for boys and girls is of vital importance because this enables progress on other aspects of gender inequality. there is a moderate to strong correlation with three out of five work equality indicators and several indicators of gender equality in society. girls who receive the same education as boys are more likely to share unpaid work with men more equitably, work in professional and technical occupations, and reach the top of companies. narrower gender gaps in educational attainment are strongly correlated with the status of girls.54 further, in 2009, the au adopted a gender policy which seeks to provide a clear vision for the implementation of women’s rights in africa as guaranteed within the maputo protocol and sdgea. the policy guides au member states in the process of gender mainstreaming and women’s empowerment and aims to influence policies, procedures, and practices, to further accelerate the achievement of gender equality, gender justice, non-discrimination and fundamental human rights in africa.55within the same year, the au heads of states and governments56 declared 2010 – 2020 as the african women’s decade (awd) following the adoption of the au gender policy. the awd was launched in nairobi, kenya on 15 october 2010 with the aim of renewing au member states efforts to accelerate the implementation of gender equality and women’s empowerment provided in the various legal and policy commitments on women’s rights. the awd identifies several themes such as fighting poverty and promoting economic empowerment of women and entrepreneurship, agriculture and food, security, women’s health, maternal mortality and hiv/aids amongst others. in addition to the above, the fund for african women was created in 2011 as the financing mechanism following the declaration of the african women’s decade as a single mechanism to ensure the full 49 arson-oran, the african union commitments to gender parity and women empowerment in africa highlighted (arsooran.org) <http://www.arso-oran.org/as-the-african-union-commitments-to-gender-parity-and-women-empowerment-inafrica-highlighted/> accessed on 15th december, 2020. 50 see ikenga k.e. oraegbunam, ‘women empowerment and participation in politics’ an important index of nigerian democracy’ in koinonia, vol. 1, no. 3, june 2002, pp. 37 – 54. 51 see however ikenga k.e. oraegbunam, ‘a jurisprudence of affirmative action as a platform for women empowerment in nigeria today’, ‘, legislative practice review: nigerian journal of law, practice and procedure of legislature, vol. 2 no. 2, 2010, pp.76-109. 52 nd zuma and zr al hussein (n-8) 40. 53the southern and eastern africa consortium for monitoring educational quality, assessment gems series no 8, the centre for global education monitoring, january 2015. 54l moodley, et al, the power of parity: advancing women’s equality in africa (mckinsey global institute 2019) 27. 55 osaa, african gender policy (united nations 2009)<http://www.un.org/en/africa/osaa/pdf/au/gender_policy_2009.pdf> accessed on 17th december, 2020. 56during the 12th ordinary session of the africa union summit held in addis ababa. acarelar 2 (2021) page | 43 implementation of policies as well as the effective mainstreaming of gender at regional, sub-regional and national levels in africa. member states committed to contribute 1 per cent (1%) of their annual national budgets to the fund. in january 2015, the au heads and states of government adopted the african union agenda 2063,57 as a 50-year blue print for the socio-economic, political and structural transformation and development for africa. agenda 2063 seeks to build on and accelerate the implementation of past and existing continental initiatives for growth and sustainable development. 5. conclusion and recommendations although many african countries have adopted the international and regional instruments that protect human rights such as the african charter on human and peoples’ rights, maputo protocol and the others, a lot still needs to be done in terms of practically implementing these instruments to protect human rights defenders, especially for women who are more vulnerable in this aspect. despite strides that have been made in terms of acknowledging the role and the rights of women, the research found that the deeply rooted cultural, religious and patriarchal perceptions continue to have a major influence on the lives of women. women lack access to education, finance, economic empowerment, landed properties, and health care. women are also victims of sexual and gender based violence. these factors are the major challenges to women rights in africa. in line with the identified challenges, the following actions are recommended. the au should accordingly ensure that women especially young women are actively engaged in africa’s wide dialogues on all aspects of democracy, governance, and human rights in africa and undertake effective monitoring and evaluation of their initiatives. member states of the african union should adopt gender responsive planning and budgeting to accelerate the implementation of the maputo protocol and all au decisions on women’s rights in africa and also amend or abolish laws discriminatory to women. member states should strengthen support for institutions in relation to gender equality and the empowerment of women including the systematic integration of a gender perspective in all ministries as well as national human rights institutions. the civil society should exploit new and traditional forms of media to raise awareness and engage citizens, especially women, to be at the forefront of advocating for the acceleration of the implementation of women’s rights. 57african union commission, ‘agenda 2063’. african customary and religious law review 1 (2020) page | 49 quest for environmental protection and integrity in nigeria1* abstract the evolution of environmental laws in nigeria began as a result of the need to combat the increasing menace and incidents of environmental issues. these challenges range from deforestation, desertification, air pollution, land pollution, water pollution, noise pollution, waste pollution, oil and gas flaring, atmospheric imbalance, etc. today the nigerian environment remains more threatened than ever before from the effects of environmental problems. therefore, the emphasis over environmental degradation in nigeria is gradually shifting from the absence of adequate regulations with criminal sanctions on the environmental infractions of these laws to the enforcement of the plethora of laws. the challenges in enforcing these laws are enormous as the agencies vested with the power to enforce the laws witness some challenges such as inadequacy of trained staff and equipment and even in some cases apathy to go after offenders. the aim of this article is therefore to critically examine the prime issue of environmental sustainability and governance, the law as it is in other developed jurisdictions like united kingdom, canada, united state of america and others, the production of oil and gas and its consequent environmental impact is further examined in comparative context in this article with more attention on the above mentioned countries. it also has recommendation for reviewed to provide for stiffer sanctions that would effectively deter intending environmental polluters. keywords: environmental protection, environmental integrity, nigeria, quest 1. introduction environmental governance is a key vehicle towards attaining a sustainable environment and society. the challenge of environmental degradation can only be solved effectively by emphasizing the inclusion of the protection of the environment to economic goals so as to ensure the attainment of environmental sustainability. there is therefore a need to develop policies, joint actions and the best practices for improved environmental governance in nigeria in order to avoid compromising the country ability to achieve its economic and social objectives on a sustainable basis. sustainable environmental governance is an approach to environmental governing that seeks to balance environmental protection against economic growth and social justice. the sustainable development commitments that nations made at the united nations conference on the environment and development in rio de janeiro in 1992 and that they reaffirmed in 1997 and 2002, are, of course national commitments. the cross-cutting nature of sustainability means that it is not confined to a single subject or a single administrative agency, department, or ministry. rather, national commitment requires the engagement of the federal or national government. two of the articles in this special issue focus on law for sustainability at the national level-one in the united kingdom (which has long had a national strategy), and the other in the united state (which has never had end). the united kingdom has had a national sustainable development strategy since 1994, the content of which has evolved over time. nonetheless, that strategy lacks a strong legal foundation. the united kingdom strategy is progressive in tone and substance, according to ross. however, it has not been particularly effective at delivering the three criteria (mentioned above) that the sustainable development commission says must be met. the biggest problem, as ross sees it, is that: three seems to be very little understanding or coherent thought about what exactly sustainable development means and its role in governance’. three models for legislation are available – a procedural model (requiring for example, the development of a strategy but not necessarily requiring adherence to the strategy), a law that explicitly establishes a sustainable development strategy as the point of reference for all decision making (or, at a minimum, environmental decisions making), and a law that makes sustainable development the organizing principle for national governance. although she prefers the third model, because the implementation of sustainable development in the united kingdom since 1994 has also evolved in stages, whichever legally enforceable obligation (if only to observe required procedures). and attract greater public attention to sustainability. abbott and marchant argue that at least five mechanism are available in the united states to institutionalize a national approach to sustainability these are: (1) an executive order requiring federal agencies to work broadly towards sustainability, (2) a sustainability impact assessment process that would include analysis of the effect of agency policies and programs, (3) a nonpartisan congressional joint committee on sustainability to assist congress in examining the effect of laws and recommending reforms, (4) a federal sustainability commission modeled on the united kingdom sustainable development commission that would advise the government and advocate and monitor sustainability activities, and (5) an independent sustainability law reform commission that would be tasked with reviewing existing federal law from the perspective of sustainability and recommending amendments, enactment and repeals. these 1*by e. o. enakireru, phd, senior lecturer, faculty of law, department of international law and jurisprudence, western delta university, oghara, delta state. e-mail: ericomo61@yahoo.com, tel: 08050617977, 07062041722; and *anthony etuvoata, phd, lecturer, faculty of law, department of international law and jurisprudence, western delta university, oghara, delta state. e-mail: aetuvoata@gmail.com, tell: 08062494881 mailto:ericomo61@yahoo.com enakireru & etuvoata: quest for environmental protection and integrity in nigeria page | 50 mechanisms, they say, illustrate a reasonable range of possible approaches that could be used in the united states to foster sustainability. it is not enough, of course to simply throw laws at a problem. 2. environmental sustainability and utilizations environmental sustainability is important because it involves natural resources that human being need for economic or manufactured capital. materials taken from nature are used for situations that address human needs. if nature is depleted faster than it can generate, human will be left without raw materials.2 the way and manner in which man subjects the environment to certain activities tends towards the destruction of man himself or the dislocation of the ecosystem, such negative result while genuinely unintended by man when acting, that is, for the development and economic interest, comes in direct conflict with environmental sustainability.3 this environment is very important both to the present as well as the future generations. any doubt, everything we do has to deal with the environment; as a result, care must be taken to ensure that the resources within the environment are optimally utilized. there cannot be development without the utilization of the available resources within the environment, and consequently, there must be a balance between the development of the resources and attainment of balanced environment.4the principle of sustainable development aims at protecting the environment from misuse. 3. environmental integrity and protection the sustainability concepts are one of the concepts of environmental governance which has been framed by the international community to the quest for the protection and preservation of the environment. the concept of sustainable development was formulated as a welding tool as well as a framework for the realization of economic growth in an environmentally viable world. the concept originated in international law, in realization of the fact that the world environmental, its economics and the ways in which it treats human and animal inhabitants are all interlinked. three interdependent and mutually reinforcing pillars of sustainable development are presently being recognized worldwide in the transition towards a sustainable society. these are economic sustainability, environmental sustainability and social sustainability. within this concept, the environmental dimension plays a significant role, being the natural system is embedded. it has been pointed out that the global socioeconomic system can only be environmentally sustainable, if the total volume extracted does not overburden the environment.5 the maintenance of environment functions is thus very crucial for long term economic development and human well-being. it is therefore not surprising that the emphasis is currently being laid on the need to speed up the pace of reforms to improve the state of the environment (european commission, 2003).6 because life on earth is conditioned upon a healthy environment, the environmental pillar must of necessity be viewed as of utmost importance, providing the necessary foundation or stability for the economic and social pillars of sustainability. the integration of environmental governance with social pillars of sustainability, the integration of environmental governance with social and economic governance must therefore imperative for nigeria to strengthen governance framework to guide the use of the environment in a manner that sustains it for present and future generations.7 many nations of the word have made significant progress in the realization of the mdgs. call have been made for all nations of the world to enact laws that will preserve the environment and to ensure that both economic activities and environmental consideration are integrated in order to ensure sustainable development. giving the deadlines of 2015 for the realization of environmental sustainability8by the mdgs and giving increasing evidence of environmental laws in nigeria in order to ensure the attainment of the governance9 of the environment in a 2wikipedia sustainable management, http//en.wikipedia.org/wiki (sustainable management) 3adebayo, s.m., and arowolo, g.a., the efficacy of the legal framework of combating climate change in nigeria, journal of private and property law, vol. 3, (2014) 228. 4 ibid. 5the underlying causes of environmental degradation, http://indiabudget.nic.in/es 98-99/chap. 1104.pdf. access on the 7/9/2017 6aalex what is the place of practice of environmental law in africans development? http://www.lg.org/article/article 1597.html.1995-2000,(2006) 45 7 ibid 8 ibid 9the central action principle of sustainable development is integrated decision – making – the incorporation of environmental, social, and economic consideration and goals into decisions. nicholas ashford and ralph hall argue that national government in particular need to migrate “environmental, health, and safety regulation with industrial, trade and employment policies” doing so will achieve not just incremental improvement but rather disruptive or breakthrough innovations that will, for example improve the efficiency with which materials and energy are used by a factor of five or ten, and foster significant opportunities for stable, rewarding, ad meaningful employment with adequate purchasing power” the integration of multiple national objectives necessarily opens up more space to solve problems. integration fosters technological innovation because a greater range of mutually reinforcing objectives can present a larger number of options for achieving these objectives. government can achieve this kind of policy integration, ashford and hall argue, through a variety of legal and policy tools, including the use of regulation to foster innovation; research and development; “removing regulatory barriers to innovation,” tax policies; and encouragement of management – labor bargaining before technological change are planned and implemented. integration across levels of government is also important =. in many cases the legal rules for a sustainability objective at a higher level of http://indiabudget.nic.in/es http://www.lg.org/article/article%201597.html.1995-2000 http://www.lg.org/article/article%201597.html.1995-2000 african customary and religious law review 1 (2020) page | 51 sustainable manner, thereby fulfilling goal 7 of the mdgs. nigeria needs a change that will recognize the intrinsic linkage between economic growth and environmental protection, a change will ensure environmental sustainability to pilot the country in the direction of environmental sustainability if nigeria is to avoid taking a destructive path to economic development. a legal framework for sustainable environmental governance will give a legal definition of the term ‘sustainability’ and provide the necessary legal compliances.10 the transformation of the fundamental rules of sustainability into statutory rules will help to give it an increased formal validity. when the obligation to integrate public policies is made legal, its infringement renders the law or regulatory provisions unconstitutional. thriving for sustainable development as a legal obligation will then be removed from the sphere of political will. this will make the judiciary to be bound to enforce such laws. the transformation of these ethical standards into enforceable norms will make for better environmental governance system in nigeria. the international law principles are the result of the 1992 rio conference which is geared towards the regulation, remedying and punishment of activities that threaten the environment which includes oil shale activities. 4. comparative analysis the production of oil and gas and its consequent environmental impact is further examined in comparative context in this research with more attention on the following countries, the united kingdom, canada, and the united state of america. the laws regulating hydrocarbon pollution and its operational activities in many developing countries lack the impetus to impose sanction on any violators unlike the above-named countries. the world has today been be-deviled with hydrocarbon pollution that has devastating consequences in different parts of the globe government are completely separate from the relevant legal rules at a lower level of government. as a result, the lower level of government can make decisions that frustrate or impede sustainability goals. rachel medina and a. dan tarlock explain how the state of california addressed just such a problem. the states 2006 climate change legislation of reducing california greenhouse gas emissions to 1990 levels by 2020, but it did not address local land use laws that were contributing to sprawl and greater greenhouse gas emission. in 2008, after litigation that challenged these local laws, legislature passed a law encouraging plans that provide for less automobile use. most observers recognize that sustainability requires new laws and modification to existing laws. it is less often recognized that sustainability can be achieved by simply applying existing laws to new problems, or by making incremental changes in those laws. many but not all these laws are traditional environmental laws. nongovernmental organization and the california attorney general, for example forced municipalities in that state to consider the greenhouse gas emission impacts of their land use decision by filling and setting lawsuits under the 1970 california environmental qualities acts (ceqa). this statute requires state and local governments to prepare environment impact reports for decision that will have significant impacts and to reduce or avoid impacts whenever feasible. this litigation, as already noted, led to the adoption of a 2008 statute describing local responsibilities to limit greenhouse gas emission with greater particularity than ceqa. but that legislation would not likely have been adopted without the ceqa litigation. similarly, robin craig and j.b ruhl survey a range of legal and policy tools that can be used to foster sustainable management of coastal ecosystem – integrated, place – based management strategies and innovative regulations, including market-based instrument. their starting point is existing law, including adaptation to climate change. for example, they advocate wider use of collaborative governance structure, greater use of “reflex law” (such as information reporting), and more use of economic incentive. while they recognize that governments have begun to use these tools, they argue that they could be “used more pervasively and creatively as part of new sustainable governance institutions” many of the laws that provide starting points for sustainability are not environmental laws. a 1994 cuban law made it easier for residents of urban areas to flow and sell food on unused land. since then, the government has provided financial, technical and marketing assistance for this kind of agriculture. the overall program has increased access to food, led to more organic and sustainable food production, and created jobs—all key elements of a food security program – even though much food is sold on the black market or through foreign currency. cuba has one of the world’s most aggressive and sustainable urban agriculture systems and it is developing in stages that began with the 1994 law p 1705). 10the environment and issue relating to sustainability is the contemporary question of this age. as an oil producing nation, the exploration in nigeria impact negatively on the environment. the nigeria environment is in danger, having been degraded by human activities especially in the oil sector of the economy. economic activities are not carried out in an environmentally sustainable manner and with adequate attention and concern for the environment. the quest for economic development and the bye-products of economic growth cause cumulative stress on the environment thereby resulting in environmental degradation. survival on the earth now depends more on the ability to restore the balance between the biosphere and the ecosystem. if necessary, measures are not taken to reduce environmental degradation and other unwholesome practices which threaten the health of the environment, calamity will be inevitable. the increasing rate of environmental degradation taking place the world over and particularly in nigeria has generated more concern for the sustainability of the environment. nigeria aspires to be among the best 20 economic of the worlds through her vision 20-20-20. this aspiration cannot be achieved without a stable and sustainable environment. the need to reconcile economic development with protection of the environment is expressed in the concept of sustainable development which obliges man to take a second look at the environmental consequences of his economic activities. it has become necessary to search for ways of accomplishing economic growth without jeopardizing the environment on which that growth depends and to reconcile economic and environmental protection in a sustainable manner. one of the most significant movements of this age is therefore how to effectively preserve and maintain the purity of the environment and thereby reduce environmental degradation to enhance the base of economic productivity. improving global efficiency in consumption and production and preventing economic growth from resulting in environmental degradation is one of the sustainable development goals currently being worked on at the global level in order to ensure sustained, inclusive and sustainable economic growth, full of productive employment and work for all. that makes the search for legal framework for sustainable environmental governance in nigeria imperative. enakireru & etuvoata: quest for environmental protection and integrity in nigeria page | 52 making it paramount for the legal regimes in place to be enforced and further strengthened to forestall these violations thereby making our environment safer. it may be debated whether humans can live without oil or not, but it is most times agreed that we are heavily dependent on it in this modern world and will find it hard to live without it. if we continue to use oil in our everyday lives, we must make sure that we use it efficiently. this we can do by trying to ensure that we minimise the negative effects of oil in our environment in order to expel all the negative repercussions. in the united kingdom, the pipes used for transportation of crude are of such a high quality that there is yet no reported case of oil spillage emanating from the pipeline networks. this is unlike the case in nigeria where the nosdra was only enacted in 2006, more than 50 years after oil and gas exploration and production commenced. the pipes used in nigeria for the pipeline networks are also of very low quality hence many have been corroded already. the united kingdom also maintains the laudable practice of writing the provisions of international conventions to which it is signatory into its national legislations. non vessel oil spills are also very rare as is the case with canada; this is unlike the situation in nigeria where even extant legislations in the oil gas sector do not concern them with the issue of pollution. canada has both the infrastructure and training required to respond to an oil spill. gas flaring is banned in canada. the various acts have established specialized bodies for their administration. in nigeria, there are no adequate infrastructures for the control of oil pollution and gas flaring is still the rule rather than the exception. institutional capacity for the administration of extant laws is also weak. in canada it is the federal agency that is responsible for ensuring that appropriate reporting, surveillance and response mechanism are in place to deal effectively with environmental emergencies. they coordinate the efforts of government and industry in their response to environmental emergencies and advise them on the scene commander and the federal monitoring officer of the canadian coast guard on environmental priorities and response strategies. responsibilities for environmental protection are complimentary and clearly defined. there are no overlaps in functions or conflict between the agencies that will work to sustain the environmental protection efforts. this is unlike the case in nigeria where directorate of petroleum resources (dpr), national environmental standards regulation and enforcement agency (nesrea) and national oil spill detection and response agency (nosdra) are struggling for roles and contradicting their various efforts. every oil spill in canada which affects an appreciable area of land, water and air can lead to prosecution under the canadian environmental protection act, the migratory birds convention act, the fisheries act and/or the canadian shipping act. in addition to fines, a polluter may also be expected to foot the costs of remediation. most oil spills in nigeria go unpunished as operators quickly avail themselves of the avalanche of available defences. canada has a detailed and substantial legal framework for the control of oil and gas pollution. it is an environment friendly developed economy and does not permit the exploration and exploitation of oil and gas resources at the expense of the natural environment and biodiversity. it is among the few countries that approach petroleum activities from the standpoint of sustainable development. this is unlike nigeria where pipelines crisscross the mangrove swamp forests and regularly spill oil into such forests wiping out large tracts of them without any body batting an eyelid. the culture of sustainable development is so much imbibed by all that even companies willingly give up mining rights and concessions to assist in the consolidation of the natural environment by the creation of specially protected areas. the united states can therefore be said to have an array of mutually complementing legislations for the prevention and control of oil and gas pollution. its national oil contingency plans thrive on the existing legislations such that there is a harmony between law and implementation. the united state designates the environmental protection agency (epa) as the lead agency for inland waters and land-based oil spills while the united state coastal guards (uscg) is the lead agency for coastal and deep-water port oil spills. in summary, though the united state of america has the potential threats for devastating oil spills in view of the large size of its oil industry; it has a sophisticated and effective legal framework to meet these challenges. the 2011 regulations made pursuant to the nosdra are patterned after the united states model of oil pollution response mechanism. it is however doubtful whether nigeria possesses the trained personnel and equipment for the implementation of the regulations. united kingdom liability for oil spills with the other, the operator on the ‘polluter pays’ basis with unlimited liability for costs associated with pollution and clean up, there is a substantial11regulatory regime involving many government bodies for offshore installation, most of which are located in the north sea12, oil pollution, primary responsibility rests with the marine and coastguard agency13. special rules have been imposed for pollution that is caused by an offshore installation by the offshore pollution liability (opol) agreement of 1975. the opol agreement was introduced as an interim measure during the negotiation phase of the convention of civil liability for oil 11the united kingdom used to be a large exporter of oil until 1999 when oil production began to decline as a result of the exhaustion of its well-known deposits and shifts to more areas with higher cost of production. ownership of petroleum resources in the united kingdom is vested in the crown and thus shares the dominical mode of ownership with nigeria. the united kingdom has a long history of legislation in the area of environmental protection from oil pollution and has an array of legislations in the area. they include the, petroleum (production) act, 1934; prevention of oil pollution act, 1971; 12 regional environmental emergency team, atlantic region contingency plan for environmental emergency, (1999) 13 journal of law, policy and globalization www.iiste.orgissn 2224-3240 (paper) issn 2224-3259 (online)vol.31, 2014 african customary and religious law review 1 (2020) page | 53 pollution damage resulting from exploration of seabed mineral resources. negotiation with this convention was ultimately unsuccessful and it was never ratified.14 however, the uk considered the opol agreement to be a satisfactory means of providing for a strict liability regime in case an operator should default on providing the clean-up costs associated with an incident.15 the aims of opol are: a. to provide an orderly means for the expeditious settlement of claims arising out of an escape or discharged of oil from offshore exploration and production operation; b. to encourage immediate, remediate remedial action by the parties; c. to ensure the financial responsibility of the parties to meet their obligations; d. to provide a mechanism for ensuring that claims are met up to the maximum liability under opol e. to avoid complicated jurisdiction problems claimants under opol include public authorities who can make a claim for any remedial measure taken to prevent, mitigate or eliminate pollution damage or to remove or neutralize the oil following an escape or discharged.’ anyone damaged by pollution from the oil spills may also file a claim for compensation if they have suffered ‘direct loss or damage caused by contamination.16‘ there is expectation to the operation of strict liability, which includes if the incident of pollution is a result of war, hostilities,17 an expectation natural phenomenon, an act or omission of a claimant or a third party that intended to cause the damage negligence or wrongful acts from the state or authority.18 canada canada is the world’s sixth largest producer of petroleum and the largest supplier of crude oil import to the united states.19 offshore drilling in canada20 is regulated by the federal government on the west coast and in the arctic and by joint federal provincial bodies off the coasts of newfoundland and nova scotia. safety standard,21 liability, limits on liability where there is no illegality or negligence and punishment are established by law.22 responsibilities for responding to oil spills are shared by many federal and provincial agencies23 the canada oil and gas operation act24 (cogoa) generally prohibit oil spills and require all spills to be reported. persons who are responsible for an oil spills are required to ‘take all reasonable measure consistent with safety25 and the 14 pollution prevention and control act, 1992; offshore installations (emergency procedures) regulations, 1976; 15 petroleum (production) act, 1934; prevention of oil pollution act, 1971; 16pollution prevention and control act, 1992; offshore installations (emergency procedures) regulations, 1976; merchant shipping (oil pollution preparedness, response and co-operation convention) regulations 1998 etc. the department of trade and industry is the lead regulator for discharges and gaseous emissions outside the territorial waters of the united kingdom. the environmental agency or the scottish protection agency is in charge of regulations for waters within three nautical miles’ zone. there are also other bodies for specific environmental issues in the oil and gas industry. the dti in conjunction with other specialized agencies has the responsibility of measuring environmental performance in the oil industry. it is mandatory requirement for every applicant for a license to include a statement of its environmental policy which must also state the mitigating measures the prospective licensee is to adopt to minimize risk to the environment. a proposed plan of compliance with the condition to be imposed by the department of trade and industry (dti) is also included in the application. it is the environmental protection program marshaled by the operator in its application that will determine the outcome of the application for license there are no such conditions attached to the grant of an oil mining lease or license in nigeria. the united kingdom anchors the very success of its exploratory and production activities in the oil and gas industry on the compatibility of such activities with the environment. there is a high level of awareness that oil drilling activities can only be of value to the society where they conduce with environmental balance and are not a threat to the environment. this situation is exactly the opposite in nigeria where the niger-delta environment is being mindlessly devastated to the extent that if nothing is done to ameliorate the situation, the terrain could become uninhabitable in the next 30 years. 17merchant shipping (oil pollution preparedness, response and c-operation convention) regulations, 1998 etc 18 if it resulted from compliances with instruction or conditions from the licensing states 19canada has a largely privatized oil industry and is one of the best countries in terms of prevention and control of oil and gas pollution. in many years of oil exploration and exploitation in canada, very few spills have been recorded. apart from accidents involving oil tankers, very few incidents of spill have been reported. most of the spill incidents are isolated. one of such incidents was that which occurred when a construction company accidentally punctured a pipeline in burnaby, british colombia and certain quantity of oil escaped shooting plumes of 20 metres into the air. both the operators and the civil society in canada are environment friendly. the legislations governing oil spills, individual oil pollution generating accidents and environmental emergencies in canada are:(1) the canadian shipping act; the marine liability act; the fisheries act; the migratory birds convention act; the canadian environmental act; the transportation and dangerous goods act; canada oil and gas convention act; 20 ibid 21canadian wildlife service, environmental conservative branch, environment canada atlantic region, “oil spill response plan” august 1999 22fagbohun, o. the law of oil pollution and environmental restoration, (lagos: odade publishers, 2010) .188 24 the marine liability act 25the environmental era legislations were mainly focused on general environmental issues enakireru & etuvoata: quest for environmental protection and integrity in nigeria page | 54 protection of the environment to prevent any further spill to repair or remedy any condition resulting from the spill and to reduce or mitigate any danger to life, health, property or the government that result or may reasonably be expected to result from spill. ‘the chief conservation officer in the national energy board (neb) can step in to take any action that he deems necessary. this official can also bring in other parties to do work that are not being done by the polluter.26 the costs are to be borne by the polluter and constitute a debt owed to the government. third parties hired by the government are not liable for any damages unless they act unreasonably. the regulatory petroleum regimes in canada include the following:27 a. the national energy board-canada’s national energy board (neb) has broad responsibilities in the field of oil and gas exploration. its responsibilities include the regulation of oil and gas exploration, development and production, enhancing worker safety and protecting the environment28. b. the department of indian and northern affairs (inac) – inac works in partnership with northern and aboriginal government and people govern the allocation of crown lands to the private sector for oil and gas exploration; develop the regulatory environment set and collect royalties and approve benefit plans before development takes in a given area. c. environment canada–environment canada is canada federal environment protection agency it plays a role in preventing and addressing oil spills. d. canadian coast guard – the canadian coast guard is an agency in the department of fisheries and ocean. the coast guard has the primary responsibility for managing and cleaning up oil spills from tanker and ships. e. canadian wildlife service – the canadian wildlife service coordinate the rescue and treatment of migratory birds and endangered species the service also assesses damaged caused by oil spills to wildlife and habitants to help determine whether liable parties should be prosecuted and the costs that they should bear. studies are also conducted to determine the status of recovery efforts.29 f. canada – newfoundland offshore petroleum board – the canada newfoundland and labrador offshore petroleum board has the responsibility to ensure that offshore oil and gas industrial activities proceed in an environmentally acceptable manner.30 united states the recent gulf of mexico oil spills flowed undiminished for three months in 2010 due to an explosion of deepwater horizon drilling rig31 that was operated by bp (british petroleum).32 the explosion killed eleven workers and injured sixteen others; another ninety–nine people survived without serious physical injuries. the effect of the explosion was that the deep-water horizon began to sink which started the offshore oil spills in the gulf of mexico. thousands of dead invertebrates like starfish and coral were found. similarly, many dolphin offspring were found dead along the gulf coast. oyster beds were also devastated by the oil spills and it is said that it could take ten years for the population to reach its former size this incident has been referred to as the second largest environment disaster in the us.33 prior to the 2010 gulf spills, the most notable example was the 1989 exxon valdez spills, which released approximately 11 million gallons (260,000 barrels) of crude oil into alsakan waters. according to bbc news, the oil killed over 250,00 seabirds, 2,800 sea otters,250 bald eagles34, 300 harbor seals, and 22 killer whales as well as countless herring and salmon35. the exxon valdez spills played a large role in highlighting the need for stronger legislation and spurred congress to enact comprehensive oil spills legislation, resulting in the oil pollution act (opa) which was signed into law in august 1990. this law expanded and clarified the authority of the federal government and created new oil spills prevention and preparedness 26canada, burnaby, burnaby oil, spill, update> accessed 12/09/2011.journal of law, policy and globalization www.iiste.org access on the 16/04/2017 27a reported 10.6 million gallons was spilled into the atlantic ocean, 563-6441cm s.e. of cape race, newfound and in an incident inviting a ship known as “the athenian voltic” 28 canada oil and gas convention act; 29www canada “burnaby oil spill update” verdena19, human rights <http//versenac19, word press, com/200/07125wwwf. issn 2224-3240 (paper) issn 2224-3259 (online) vol.31, 2014, access on the 16/05/2017 30 the canadian shipping act 31the legal framework for the control of oil and gas pollution in the united states is founded on three laws. these are the oil pollution act (opa) of 1990, the comprehensive environmental responses, compensation and liability act (cercla), 1980 and the water control act of 1972 otherwise known as the clean water act. in addition to the above acts is the national oil and hazardous substances contingency plan issued by the united states environmental protection agency. the opa is administered by the united states guard and provides for liability for oil pollution damage occurring in the navigable waters and the adjoining shoreline or the exclusive economic zone of the united states. the act also established the oil pollution fund for responses and payment of claims where an operator is unable to furnish adequate funds for the purpose. the act also declares the content of the national contingency plan. 32 journal of law, policy and globalization www.iiste.orgissn 2224-3240 (paper) issn 2224-3259 (online)vol.31, 2014 33apart from agencies of government, industry associations such as the ukooa, iadc and oca work with the dti to determine the environmental performance of operators 34 section 4201, opa 35 section 1012 opa http://www.iiste.org/ http://www.iiste.org/ african customary and religious law review 1 (2020) page | 55 requirements.36 the opa improved the nation’s ability to prevent and respond to oil spills by establishing provisions that expand the federal government ability and provide the money and resources necessary to respond to oil spill.37 the opa also created the national oil spill liability trust fund which is available to provide up to one billion dollars per spill incident.38the government framework for oil spill in the united state remains a combination of federal, state, and international authorities unlike the nigeria system where the control of mineral resource is highly centralized. within this framework, several federal agencies have the authority to implement oil spills regulations. 5. prospects of oil exploration in the niger delta region the major prospects for petroleum exploration and environmental sustainability is predicated on the sincerity of the various players in the sector, the international oil companies, nigeria government and the various host communities ability to adhere to conflict resolution and positive change in the niger delta region rest in the following factors identifiable within the framework of fortuitous circumstances still within the control of the parties to this conflict: first is the fact that the ethnic groups of the niger delta are really not yet at war with the state. the warring militants are basically ijaws, fighting for goals that are not really congruent with the niger delta problem, and criminal cult gangs, both of which are merely exploiting the economic and socio-political crisis for private and primordial ends. what this means is that the niger delta struggle is yet to assume a really violent coloration or involve an armed struggle by the people of the region against the state. second, is that all ethnic nationalities in the region favour dialogue and negotiation as a means of resolution of this conflict, and will be willing to shift grounds on some issues like total resource control, at least in the short run. this leaves room for negotiation and a very important window of opportunity for conflict resolution. third is the proposal of government to create at the federal level, a niger delta ministry to cater exclusively for the people of the region. this proposal seems to have been received with an open mind by the peoples of the niger delta and does present very good prospects for mutual understanding and reconciliation. fourth is that there are positive signs that the oil companies in the region, are beginning to embrace the doctrine of corporate social responsibility, and are becoming more positively engaged with some of the communities in their areas of operation. the just concluded sittings of the river state truth and reconciliation panel did provide a much needed window of opportunity for frank and open public discussions on the issues involved between the oil companies and their hosts and is expected to yield positive results. fifth is that, all the governors of the region had convened a south-south governors forum which met in yenagoa on friday the 21st of november 2008, and came out with a resolution to deal collectively with the criminal cult gangs operating in the region (nigerian tribune, 2008). this is a giant step in the right direction. sixth is that, there is at last some signs of serious effort on the part of government to address the problem of gas flaring in some parts of the region. the 5.9 billion usd escravos gas to liquid project (egtl) in delta state is the first of its kind in the region. the essence of the egtl is to stop gas flaring (the nation, 2008). this will go a long way not only to assuage community fears and anxiety, but also provide jobs for unemployed youths of the region. seventh is that the country’s constitution does not set a ceiling for the derivation. the current 13% being paid to the oil producing states is the constitutionally prescribed minimum. it does not therefore require a constitutional amendment to review the formula upwards to the 50% being demanded by the region. this is feasible and should be considered by government. eight is the window of opportunity provided by the proposed 15-year niger delta regional development plan. if the seven-point agenda of the yar-adua administration is faithfully implemented within the context of this plan, it will indeed represent a beacon of hope for the resolution of the niger delta crisis in a relatively short time. 6. conclusion and recommendations laws must be signed and drafted with care to achieve results, and they must be evaluated carefully afterwards to see if they have actually achieved the desired results. for sustainability laws, the availability of credible and widely applicable assessment tools and institutions is especially important. it is true that globalization is the major cause of our suffering, it is also correct to say that we suffer more than the gains of globalization. we have varieties 36the cercla is also known as the “superfund.” it makes provisions for the clean-up of sites contaminated by spills and hazardous substances. it provides liability for clean ups and clean up procedures that protect humans and the environment. the act empowers the president to clean up hazardous substance’s sites either directly or through a responsible party by enforcement actions. under the act, the trustee for the environment may recover apart from agencies of government, industry associations such as the ukooa, iadc and oca work with the dti to determine the environmental performance of operators 37the cerlca operates retroactively and can be used against those responsible for hazardous wastes before its enactment. the clean water act aims at maintaining and restoring the chemical, physical and biological integrity of the waters of the united states and to apply the best available and economically achievable technology to maintain waters quality so as to ensure protection of fish, shellfish, wildlife and human recreation activities. in a nutshell, it aims at preventing the pollution of the waters of the united states, and gas activities are always hazardous in nature and their readiness to legally address the situation. this is unlike in nigeria where all the preoccupation of government is on how to maximize oil output with little or no attention being paid to the damaging effects of oil production on the environment. 38restoration, natural resources damage assessment and restoration program ‘laws, regulations and authorizing statutes” at <http//restoration.doc.gov/laws.html accessed 19-02-2012 enakireru & etuvoata: quest for environmental protection and integrity in nigeria page | 56 of laws protecting our environment, these laws are sufficient to sustain us in a friendly environment. therefore, we must continue to strive by abiding and promoting these environmental laws, implementing equally enforcing those laws. we owe a duty to ourselves, our children both born and unborn to keep the environment safe, by doing everything our capacity to minimize pollution, and saving the flora and fauna in our environmental. the following measures may be helpful: 1. environmental regulatory laws in nigeria should be reviewed to provide for stiffer sanctions that would effectively deter intending environmental polluters 2. there should be a collection of environmental data on activities threatening the environment and also data on environmental pollution within the country so that the government will know when its laws are efficient and when they are not enough and to also enable government analyze the extent of harm done to the environment. 3. since environmental pollution is a very serious issue of concern and affects both young and old, courses should be introduced in primary, secondary school and the various universities in nigeria as a compulsory subject with the aim of enlightening pupils about environment, its pollution and effects. 4. our government should put in more effort in enforcing these numerous environmental laws by making funds available for enforcement, closing its eyes against corruption, managing polluted environments with the various taxes paid, embarking on campaign and environmental awareness programs, providing more securities at our country borders. 5. the court should wake up from their slumber and tackle environmental cases with undue delay or undue regards to technicalities. 6. the government should set up environmental court to enable easy access and quick dispensation of environmental matters on its merits. 7. courts should be ready to award deserving compensation to victims of environmental pollution. ishiguzo: the dark side of podcasting: defamation, character assassination, and the imperative of legal regulation in nigeria 102 | p a g e the dark side of podcasting: defamation, character assassination, and the imperative of legal regulation in nigeria abstract this study delves into the uncharted territory of podcasting in nigeria, exposing the dark underbelly of defamation, character assassination, and unregulated free speech. with the proliferation of podcasts in nigeria, concerns about the spread of misinformation, hate speech, and defamatory content have grown. the absence of effective legal regulation and oversight has created an environment where podcasters can disseminate harmful content with impunity, leaving victims with little recourse. this research explores the intersection of free speech, defamation, and legal regulation in nigeria's podcasting industry. through a qualitative approach, combining documentary analysis, expert interviews, and case studies, this study investigates the prevalence of defamation and character assassination in nigerian podcasts, examines the legal framework governing podcasting, and identifies the challenges and limitations of existing laws. the findings reveal a pressing need for legal regulation to strike a balance between free speech and accountability. this study proposes recommendations for effective legal oversight, drawing from international best practices and nigeria's unique socio-legal context. this research contributes to the discourse on media regulation, free speech, and defamation, providing insights for policymakers, legal scholars, and industry stakeholders. by shedding light on the dark side of podcasting in nigeria, this study aims to promote responsible podcasting practices, protect individuals and communities from harm, and ensure that the benefits of podcasting are realized without compromising the well-being of nigerian society. keywords: podcasting, dark side, defamation, character assassination, regulation, nigeria 1. introduction the advent of podcasting has revolutionized the media landscape, offering a platform for diverse voices, perspectives, and stories to reach a global audience. however, beneath the surface of this burgeoning industry lies a dark underbelly – a realm where defamation, character assassination, and unbridled free speech threaten to undermine the very fabric of nigerian society. in recent years, nigeria has witnessed a surge in podcasting, with numerous shows tackling sensitive topics, from politics and social issues to entertainment and culture. while this proliferation of podcasts has fostered a sense of community and free expression, it has also created an environment conducive to the spread of misinformation, hate speech, and defamatory content. the lack of effective legal regulation and oversight has emboldened some podcasters to push the boundaries of acceptable speech, often with devastating consequences for individuals and communities. defamation and character assassination have become rampant, leaving victims with little recourse or protection under nigerian law. this study seeks to explore the dark side of podcasting in nigeria, examining the intersection of free speech, defamation, and legal regulation. by delving into the complexities of this issue, this research aims to: investigate the prevalence of defamation and character assassination in nigerian podcasts; analyze the legal framework governing podcasting in nigeria; examine the challenges and limitations of existing laws in addressing podcastrelated defamation; explore international best practices in regulating podcasting and online speech and propose recommendations for effective legal regulation and oversight of podcasting in nigeria. through this research, we hope to shed light on the imperative of legal regulation in nigeria's podcasting industry, ensuring that free speech is balanced with accountability and protection for all individuals and communities. 2. the concept of podcast podcasting is a way to distribute digital audio content over the internet with the end goal that the content will be downloaded by a subscriber using subscription software such as itunes, then synced to the listener's portable mp3 player for later listening. the term ‘podcasting’ comes from apple's ubiquitous ipod, because of the notion that podcasts would likely be played on an ipod. however, an ipod is only one of many ways to listen to the shows. each individual podcast episode is a single mp3 file of audio content, which is downloaded to the computer of the listener. listeners can listen to the shows on their computers, directly from the web, or on a portable mp3 player. one online encyclopedia provides the following description for podcasting: podcasting is [a] blanket term used to describe a collection of technologies for automatically distributing audio and video programs over the internet via a publish and subscribe model. podcasting enables independent producers to create self-published, syndicated ‘radio shows,’ and gives broadcast radio programs a new distribution method. in the podcasting model, the publisher publishes a list of programs in a special format, known as a ‘feed’, on the web. a user who wants to see or hear the podcast subscribes to the feed in special ‘podcasting’ software (a type of  by r. o. ishiguzo, phd, bl, legal practitioner based in asaba, delta state, nigeria, tel: 08068515729, 08058237739, email: rich4just@yahoo.com, rich4just12@gmail.com. mailto:rich4just@yahoo.com mailto:rich4just12@gmail.com african customary and religious law review (acarelar) 5 (2024) 103 | p a g e aggregator), which periodically checks the feed and automatically downloads new programs as they become available. typically, the podcatching software also transfers the program to a desktop or portable media player1. the most distinctive quality of podcasting is the ability to ‘time-shift’ digital audio content2. time-shifting is the result of downloading an audio program for later listening. like the blogging phenomenon, podcasts have come out of nowhere to attract enthusiastic grassroots following. they're being generated by a wide cast of charactersfrom professional broadcasters to rank amateurs. listeners can download shows to their computers, or, with a bit of know-how, automatically export shows to an apple ipod-hence the term 'podcast'-or any mp3 player. podcasting owes its roots to blogging. essentially, podcasting is an extension of web log (‘blog’) technology, with one important difference: the addition of an attached file. the attached file is handled through the use of a really simple syndication (rss) feed. 3. notable nigerian podcasts in nigeria, podcasts have become an important platform for critical dialogue about politics, social justice, entertainment, and culture. they provide a valuable space for discussions on important issues that may not receive adequate coverage in mainstream media outlets. some unique nigerian podcasts have been making waves on the social media/internet platforms lately. prominent amongst them includes; 4th republic: this political podcast, which maintains a non-partisan stance, aims to provide context and documentation of political events in nigeria that have occurred since 1999. it also profiles and interviews aspirants contesting for political positions, as well as provides audio briefings of its weekly political newsletter3. the dirty lie podcast: a history podcast that mixes extensive historical research, dry humor, and ‘two facts and lie’ to set the tone for episodes that examine moments in history that are stranger than fiction4. nigerian american: this podcast spotlights captivating stories and first-hand encounters of global migrants who are of nigerian origin. it takes a storytelling route to explore a range of topics about identity, culture, business, politics, music, etc. in a very unique way5. the open africa podcast: this podcast features three knowledgeable hosts engaging in candid discussions about finance, technology, and start-ups in africa. with a perfect blend of humor and insight, the hosts offer a comprehensive analysis of the fintech landscape6. loose talk podcast: this podcast, hosted by nigerian media personalities, osagie alonge, steve dede, and ayomide tayo, offers a candid and irreverent take on pop culture, music, and politics. the podcast has gained a large following in nigeria and has been credited with helping to shape public opinion on various issues7. i said what i said: this podcast, hosted by nigerian media personalities, jola ayeye and feyikemi abudu, offers a frank and insightful perspective on contemporary issues affecting young people in nigeria. the podcast has gained a significant following for its engaging and relatable content8. the honest bunch podcast: the honest bunch podcast is a refreshing and candid exploration of the human experience. the show is hosted by a group of friends who share their thoughts, stories, and perspectives on a wide range of topics. each episode features the hosts sharing their personal experiences, insights, and advice in a relatable and down-to-earth manner9. gbam podcast: gbam is an igbo interview/podcast in nigeria hosted by dr. chijioke igwendu (yanbaba) its contents touches on education, fiction (for educative and expository purposes) and pure entertainment10. 4. defamation generally, defamation is the act of making a false statement about someone, which damages their reputation. defamation may be either libel (written or published statements) or slander (spoken statements)11. defamation is defined as the transmission to a third party, either orally or in writing, of information that could damage the reputation of another person. it is the publication of a statement, which exposes a person to hatred, ridicule, contempt and/or causes him to be shunned or avoided by right thinking members of society. defamation is the 1 wikipedia, podcasting, http://en.wikipedia.org/w/index.php?title=podcasting&oldid=28332345 (last visited nov. 14, 2005). 2see byron acohido, radio to the mp3 degree: podcasting, usa today, feb. 9, 2005, at ib, available at http://www.usatoday.com/money/media/2005-02-09-podcasting-usatmoney-cover-x.htm 3 see https://podcasts.apple.com/ng/podcast/4th-republic/id1604180965 4 see https://podcasts.apple.com/ng/podcast/the-dirty-lie-podcast/id1622253468 5 see https://podcasts.apple.com/ng/podcast/nigerian-american/id1265543296 6 see https://www.openafricapodcast.com/ 7 see https://podcasts.apple.com/ng/podcast/loose-talk/id1669922137 8 see https://podcasts.apple.com/ng/podcast/i-said-what-i-said/id1276300865 9 see https://podcasts.apple.com/ng/podcast/i-said-what-i-said/id1276300865 10 see https://www.tiktok.com/discover/gbam-podcast 11 black, h. c., garner, b. a. (eds.), black's law dictionary, 11th ed., (st. paul, mn: west academic publishing, 2019) p. 446. ishiguzo: the dark side of podcasting: defamation, character assassination, and the imperative of legal regulation in nigeria 104 | p a g e general term that is commonly categorized as either libel or slander. libel is a written defamation while slander is verbal defamation. it falls under the law of tort and a broader legal definition of the concept refers to false statements about a person communicated as fact to one or more other persons by an individual or entity (such as a person, newspaper, magazine or political organization), which causes damage and does harm to the target’s reputation and/or standing in the community. the general harm caused by defamation is identified as ridicule, shame, hate, scorn, belittlement or being held in contempt by others, and which lowers him/her in esteem of a reasonably prudent person, due to the communication of the false statement. scholars in the field of media agreed that, for a statement to be defamatory of a person, the following statement must be false and targeted towards: (a.) lowering his morale in the estimation of right-thinking men or (b.) causing him to be shunned or avoided, or (c.) expose him to hatred, contempt or ridicule, or (d.) conveys an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business. (e.) injures his financial credit. defamation could be civil or a criminal act. thus, both the criminal and penal codes have provisions on defamation. section 373 of the criminal code defines defamatory matter as matter likely to injure the reputation of any person in his profession or trade. section 391 of the penal code also provided for defamation. when does online defamation become actionable? there are three key factors to consider when deciding whether a defamatory statement is actionable or not – the online defamatory statement must be a lie: often, people confuse every negative comment about them to mean defamation. unfortunately, not all negative statements are defamation. modern governments around the world all have a right to free speech which is not without limit. when someone communicates, either in writing or verbally, a statement that is not true, they step beyond the bounds of their right to free speech and may become subject to civil liability. in wilson v. bauer media pty ltd12, the court awarded wilson $650,000 general damages and $3,917,472 special damages. in doing so, the court noted the presence of multiple aggravating factors including substantial loss of business. the court’s findings were premised on the fact that wilson had proved that the lies published by the magazine were sufficient to give rise to a reasonable cause of action for defamation. there must be actual harm: legal reviews have revealed that so often, people who have been defamed are angrier than actually injured. to successfully maintain an action for defamation, you should be able to prove and establish that the publication causes actual harm to you and not just that it made you angry. those are actual injuries that can be addressed and quantified in an actionable manner. in the case of wilson v. bauer media pty ltd (supra), it was clear that the false publication by the magazine occasioned a loss of business and income for wilson and this was instrumental in the court’s findings in her favor. in lachaux v. independent print ltd13, the court dismissed the case since the claimant could not prove any serious harm caused him by the publications of the defendants. there must be evidence: a person can defame another person all day long but unless those who witness the defamation are willing to testify or the alleged defamatory statements are recorded, it becomes a ‘he said/she said’ situation. generally, for online defamation, recorded statements are easier to preserve for trial but they will not be entirely useful unless there is information regarding who wrote the statement and who read, accessed or downloaded it. in giwa v. ajayi14, the court of appeal held that there was no evidence as to whom the alleged defamatory matter was published and since the plaintiff did not lead evidence on this very important aspect, the court was entitled to conclude that there was in law and in fact no publication of the alleged defamation15. proof of online defamation: as a general rule, not every ‘negative’ publication made online amounts to defamation. the allegation of defamatory publication within the context of online publication is hinged on the fact that the party claiming defamation must prove or show that the defamatory material was actually accessed and downloaded by identifiable persons within the jurisdiction of the court. thus, the law will not presume that the words were actually read16. in the english case of mohammed hussein al amoudi v. jean charles brisard & anor17, the plaintiff’s case was dismissed on the ground that he was not able to show that the defamatory material was actually accessed and downloaded by identifiable persons within the jurisdiction of the court. this case clearly draws the distinction on the elements that must exist to prove online defamation, which are – a. the alleged defamatory material must have been read or accessed by a third party to constitute substantial tort; and b. the said material must have been 12 2 [2017] vsc 521 (australia) 13 3 [2017] ewca civ 1334 (england) 14 (1993) 5 nwlr (pt. 294) 423 15 see omo-agege v. oghojafor (2011) 3 nwlr (pt. 1234) at 341 and zabusky v. israeli aircraft ind. (2008) 2 nwlr (pt. 1070) at 109. 16 king v. lewis (2004) ewca civ1329 case no. a2/2004/0380 17 (2006) 3 all er 294 african customary and religious law review (acarelar) 5 (2024) 105 | p a g e accessed and downloaded within the court’s jurisdiction. it is a basic ingredient of online defamation that substantial and real publication of the alleged defamatory material must first be proved. this is so because publication cannot be inferred solely by reason of the mere fact that defamatory allegations have been accessible on the internet18. it is worth stating that in order to establish and prove an online defamation claim, it is generally immaterial whether the defamatory statement is deliberate or not. it is also of no moment that the online post in question was fired off in anger or even an innocent repeat of a third party’s defamatory statement. as long as it is published, read and reputational damage suffered, it is sufficient to prove the defamatory claim. defences/exception to defamation as always, there are exceptions and defenses to online defamation and they generally include: 1. fair comment – this refers to a statement of opinion which was arrived at based on accurate facts, which do not allege dishonourable motives by the person about whom the statements were made; 2. statements made about a public person (political candidates, governmental officeholder, movie star, author, celebrity etc.) are usually exempt, even if they are untrue and harmful. this is due to their status as public persons. however, if they were made with malice – with hate, dislike, intent and/or desire to harm and with reckless disregard for the truth – the public person may have a cause of action. 3. minor errors in reporting, such as publishing a person’s age or title inaccurately or providing the wrong address; 4. governmental bodies due to the premise that a non-personal entity cannot have intent; 5. public records are also exempt from claims of defamation; 6. truth – where it is proven that the communication was true. 5. legal framework for mass media in nigeria in order to ensure national security and by keeping relevant facts and information secret from the public and the rest of the world, the provision of the 1999 constitution of nigeria guarantees a regulation of the freedom of expression and the press19. while section 39(1) guarantees the right to freedom of expression and the press, section 39(2) and (3), (a)-(b) quickly check the provisions by permitting its restriction or abridgment, by any law which is reasonably justifiable in a democratic society for the purpose of preventing the disclosure of information received in a confidence; or imposing restrictions upon persons holding office under the government of the federation or state; or members of the armed forces, or police, and other security agencies20. the above section gave rise to different enactments and promulgations of laws with the aim of regulating ‘absolute freedom’ enjoyed by the mass media in nigeria just like their counterpart in rest of the world. following are the laws aimed at regulating the media in the country: the nigerian constitution: even though, section 39(1) of the 1999 constitution guarantees the right to freedom of expression and the press, section 39(2) and (3) however place a limitation on the freedom of expression and the press by ensuring the authorization of the president of the federal republic of nigeria must be required in order to own, establish or operate a television or wireless broadcasting station for any purpose whatsoever and by prohibiting the publication any information received in confidence, that is, matters classified by governments as official secrets or as confidential matters. official secrets act: the official secrets act prohibits the publication of confidential information and matters relating to defense establishments, security installations and other protected places in nigeria. similarly, section 97 of the criminal code act prohibits the disclosure of official secrets and the abstraction of confidential documents. for this therefore, official secret act serves as a means of limiting or part of regulating the functions of mass media in nigeria. law of defamation: the law of defamation is said to be up to sub-divisions such as libel, slander, innuendo, and abuse. although it is part of the statues of general application or received english laws, almost all the states of the federation have their defamation laws. a person may therefore be liable for making defamatory statements about another person without justification. in addition, defamation is also a crime and section 373-381 of the criminal code act21 and laws prohibits defamation. law of sedition: the offence and penalty as stated in this law is provided in sections 50 60 of the criminal code22, and prohibits the publication of seditious matters and other undesirable publications and the carrying out of seditious acts. 18 jameel v. dow jones inc; al amoudi v. brisard [2007] 1 wlr 113 19 bello madaki beli and ashiru tukur inuwa, media regulations in nigeria: the roadblocks to freedom of the press, proceedings of the multi-disciplinary academic conference on sustainable development vol. 2 no. 4 july 10 – 11, 2014, m.l. audu auditorium, federal polytechnic, bauchi. 20 malemi, e. (2009). mass media law: press law (third edition). ikeja: princeton publishing co. 21 cap c38, laws of the federation of nigeria, 2004. 22 ibid. ishiguzo: the dark side of podcasting: defamation, character assassination, and the imperative of legal regulation in nigeria 106 | p a g e law of contempt: ‘this concept is most often difficult to describe as it has contempt in face of court or out of court’23. most jurists however attempted to define contempt as any conduct which tends to bring into disrespect, scorn, the authority and administration of the law or which tends to interfere with and/or prejudice litigants and/or their witnesses in the course of litigation. law of contempt can therefore be said to put a roadblock to free operations of the mass media in the country. obscene and harmful publication laws: these laws prohibit the publication of obscene and harmful literatures, articles and acts that are likely to destroy the morality of the public. criminal law is the main law that prohibits immoral acts and obscene and harmful publications. the criminal code act and laws under sections 214 233(a) prohibits various offences against morality, whilst section 233(b)-(f) specifically prohibits obscene publications and articles. this apart, the penal code, the children and young persons laws, the constitution, and so forth also prohibit obscene and harmful publications24. copyright act: the copyright act 202225 protects copyright work for a copyright owner. any publication or other act which is an infringement of copyright work, or intellectual property, is wrongful and attracts appropriate sanctions under copyright law. advertising practitioners (registration, etc.) act: the advertising practitioners (registration, etc.) act26 regulates the advertising profession and practices in nigeria and also dealing with the ethical issues concerning the profession. any person practicing advertising in nigeria must therefore abide by the provision of the code failure of which a sanction can be enforced on the violation. national broadcasting commission act27: the national broadcasting commission decree, (now act) established by the decree no 48 of 1992 which is amended by the national broadcasting commission (amendment) decree no. 55 of 1999 regulates radio and television broadcast in nigeria. nigerian communications commission act28: the nigerian communications commission is empowered by this act to regulate all telephone service providers and related activities in nigeria. nigerian press council act29: this law as amended by the nigerian media council decree no. 85 of 1992 established the nigerian press council. this is the regulatory body aimed at tackling media misdemeanor and interpretation of ethical principles and issues involving the practice of journalism in nigeria. this law has been repealed and replaced by the nigerian press council (amendment) decree no. 60 of 1999 now act 2004. nigerian television authority act: the nigerian television authority act30 provides some framework for the regulation of the television stations, under its authority; among other things. federal radio corporation of nigeria act: the federal radio corporation of nigeria act31 and similar laws in the various states with respect to radio and television stations provide some framework for the regulation of such government owned media. professional and non-statutory bodies: within the mass media in nigeria, there are professional and nonstatutory bodies that provide some form of regulation through the provision and enforcement of professional ethics, or code of conduct. these bodies include the nigerian union of journalists (nuj); the nigerian guilt of editors (nge); and the newspapers proprietors association of nigeria (npan). each of these bodies has a constitution and code of ethics regulating members. 6. the dark side of podcasting and the imperative of legal regulation in nigeria podcasts have shown to have a growing listenership over the recent years. as of 2024, there are 464.7 million global podcast listeners. this number is predicted to reach 504.9 million by 202432. in today’s world, podcasts have become a major source of information on a variety of topics such as politics, current affairs, culture, health, and controversial issues. surveys have shown that people listen to podcasts while completing mundane tasks such as commuting, and household chores33. podcasts have become increasingly popular in recent years, and it seems like everyone and their mom has a podcast these days. from comedy to true crime to politics, there’s a podcast for everyone. but not everyone is thrilled about the podcast boom. critics worry that podcasts are further ruining society by giving anyone a platform to share their thoughts, regardless of their expertise or qualifications. it is important to note that podcasts may sometimes unintentionally spread misinformation. one such example is when 23 obadan o l, laws and ethics in nigerian media practice” in omu f i a & obah g.e. (ed.), mass media in nigerian democracy (ibadan: stirling-horden publishers (nig.) ltd., 2008) pp. 172-188. 24 malemi, op cit. 25 this act repealed the copyright act 1990 (cap c28, laws of the federation of nigeria, 2004). 26 cap a7, laws of the federation of nigeria, 2004. 27 cap n11, laws of the federation of nigeria, 2004. 28 cap n97, laws of the federation of nigeria, 2004. 29 cap n128, laws of the federation of nigeria, 2004. 30 cap n136, laws of the federation of nigeria, 2004. 31 cap f18, laws of the federation of nigeria, 2004. 32 rohit shewale, podcast statistics for 2024, 2024. retrieved online from 13 podcast statistics you need to know for 2024 (backlinko.com). accessed on july 26, 2024. 33 stephanie j tobin & rosanna e guadagno, why people listen: motivations and outcomes of podcast listening, 2022. retrieved online from https://doi.org/10.1371/journal.pone.0265806 african customary and religious law review (acarelar) 5 (2024) 107 | p a g e joe rogan’s influential podcast hosted infamous physician dr. robert malone promoting covid-19 conspiracy theories34. as a result, such podcasts may end up amplifying inaccurate or biased information to their listeners, which can negatively impact society. the democratization of podcasts and the lack of editorial oversight, factchecking, or accountability mechanisms in the podcasting ecosystem may contribute to the spread of misinformation. furthermore, podcast users are loyal listeners and this only exacerbates the issue of misinformation unless users are made aware35. this makes the problem of tackling misinformation still an open challenge in audio-based information access systems such as spoken conversational search (where communication between a user and system occurs verbally through audio) and podcasts. defamation, which involves making false statements that harm an individual's reputation, and character assassination, which refers to the deliberate attempt to destroy someone's reputation through malicious falsehoods, have become increasingly prevalent in nigerian podcasts. the anonymity and informality of podcasting allow hosts and guests to make unverified claims without fear of immediate repercussions. this has led to several instances where individuals have been unjustly maligned. one notable example is the controversy surrounding a podcast episode where a purported repentant prostitute and purported realtor chinwe splendor came out on gbam podcast hosted by dr. chijindu igwendu (yanbaba) to allege that she has slept with all the managing directors of real estate companies in anambra state. she alleged that 95 per cent of the girls currently involved in the real estate business are ‘hook-up girls (prostitutes)’. according to her, as a lady, if you want to upgrade your prostitution business to the next level, you join the real estate business. she further complicated the broadcast by stating that as a result of her prostitution which started way back when she was in the university, she was not able to attend lectures. therefore, in order to succeed with her academics, she slept with all her lecturers to be able to pass her course36. this podcast did not go down well with the real estate developers in anambra state as well as the university community where she graduated from. the allegations were made without evidence, yet the episode went viral, leading to significant reputational damage for the real estate developers and the university lecturers. despite the lack of concrete proof, the podcast's wide reach meant that these claims were widely accepted as truth by many listeners. this podcast of course triggered reactions amongst the real estate developers and the lecturers. the real estate developers association of anambra state came out to make a press conference denying the allegation and stating that she is not a realtor and that her statement is a lie from the pit of hell37. the university on their part sent her a mail asking that she return her certificate within 48 hours38. another instance involved caramel plug, a well-known social media influencer and comedian, who recently launched a new podcast with two other influencers, titled ‘rants, bants and confessions’. unfortunately, in the very first episode of the podcast, caramel made a statement that triggered a strong reaction from many people. during the podcast, caramel expressed the opinion that women have men in their lives who perform different roles for them and will eventually become submissive to one particular man only when he's able to meet all of her needs, including financial and emotional support. in her words, ‘women have men for everything. the ones who’ll give them gifts. the ones who are just there, they just want to sleep with you. we have men for everything. so, if you are coming into a woman’s life, and you say, ‘i want you to be submissive, i want you to stroke my ego, i want you to do everything’ and all of that stuff, you have to be ready to make sure you’re ticking all these boxes, you’re doing everything for her’. this view did not sit well with many people, as it appeared to portray women in a negative light, as gold diggers who offer nothing but their bodies in exchange for material support. twitter users were quick to criticize the podcast hosts for their controversial opinions. many felt that their views were borderline prostitution and reinforced negative stereotypes about women. the podcast in question provided no verifiable sources for the claims, yet the episode contributed to widespread public distrust and outrage, influencing people’s perception of women in a negative way. these are just to mention but a few. so many other instances abound where many defaming and controversial opinions have been canvassed on this podcast platforms which at the end of the day appears not to be true, thereby 34 kevin matthe caramancion. an exploration of mis/disinformation in audio format disseminated in podcasts: case study of spotify, electronics and mechatronics conference (iemtronics), 2022, pp. 1 6. retrieved online from https://doi.org/10.1109/iemtronics55184.2022.9795760. 35 ute döring, barbara müller, svenja rohr, john ruhrmann, and melissa schäfer, listen and read: the battle for attention: a new report about key audience behaviour in the age of ebooks, audiobooks and podcasts, publishing research quarterly 38, 1 (2022), pp. 40 52. retrieved online from https://doi.org/10.1007/s12109-021-09853-2. 36 the podcast can be accessed on youtube using the following link; https://www.youtube.com/watch?v=cmyxwyukprw 37 izunna okafor, anambra real estate ceos dismiss akllegagtion from repentant harlot who claimed she slept with 95% of them, 247 u reports, 11th june 2024. retrieved online from https://247ureports.com/2024/06/anambra-real-estate-ceosdismiss-allegation-from-repentant-harlot-who-claimed-shes-slept-with-95-of-them/ 38 faith ajayi, sex-for-marks: actress begs as varsity demands certificate’s return, punch newspaper, 15th june, 2024. retrieved online from https://punchng.com/sex-for-marks-actress-begs-as-varsity-demands-certificates-return/ ishiguzo: the dark side of podcasting: defamation, character assassination, and the imperative of legal regulation in nigeria 108 | p a g e highlighting the dangerous potential of unregulated podcasting in spreading misinformation and harming reputations. the consequences of defamation and character assassination through podcasts are far-reaching. for individuals, it can lead to severe emotional distress, loss of livelihood, and irreparable damage to personal and professional relationships. public figures, in particular, are vulnerable to these attacks, which can undermine their credibility and career prospects. moreover, the spread of defamatory content can erode public trust in the media. when false information is disseminated without consequence, it creates an environment where misinformation thrives, making it difficult for audiences to distinguish between fact and fiction. this undermines the role of the media as a credible source of information and poses a significant threat to the integrity of public discourse in nigeria. given the potential harm that can arise from unregulated podcasting, there is a pressing need for legislation to regulate the medium in nigeria. currently, nigeria lacks specific laws addressing the content of podcasts, leaving a regulatory vacuum that has allowed these issues to proliferate. legislation could address this by establishing clear guidelines for podcast content, including requirements for fact-checking and the responsible handling of sensitive information. for example, laws could mandate that podcasts dealing with allegations against individuals or entities must provide verifiable evidence and give the accused parties a right of reply. such provisions would help to mitigate the risk of defamation and character assassination while preserving the freedom of expression that makes podcasting an attractive medium. 7. challenges to the legal regulation of podcasts in nigeria the legal regulation of podcasts in nigeria faces several challenges, which can be broadly categorized into technical, jurisdictional, and policy-related issues. here are some of the key challenges: technical challenges: defining podcasts: the first challenge is defining what constitutes a podcast. podcasts can take various forms, including audio, video, and live streams. this diversity makes it difficult to create a comprehensive regulatory framework. anonymity and pseudonymity: podcasters can remain anonymous or use pseudonyms, making it challenging for regulators to identify and hold them accountable for any violations. decentralized nature: podcasts are often hosted on various platforms, such as apple podcasts, spotify, or youtube, which can be operated from anywhere in the world. this decentralization makes it difficult for regulators to track and regulate podcasts. ephemeral nature: podcasts can be easily deleted or modified, making it challenging for regulators to investigate and prosecute cases involving podcasts. jurisdictional challenges: geographical reach: podcasts can be accessed globally, making it challenging for nigerian regulators to determine their jurisdiction over podcasts produced outside nigeria but accessible within the country. cross-border issues: podcasts often involve international collaborations, making it difficult to determine which country's laws apply. extraterritorial jurisdiction: nigerian regulators may face challenges exercising jurisdiction over foreign-based podcasters or platforms. policy-related challenges: freedom of expression: podcasts are a form of expression, and regulating them can raise concerns about censorship and freedom of speech. diversity of content: podcasts cover a wide range of topics, including sensitive or controversial subjects, making it challenging to develop a regulatory framework that balances freedom of expression with social responsibility. industry growth: the podcasting industry is rapidly evolving, making it difficult for regulators to keep pace with the latest developments and trends. lack of clear guidelines: the absence of clear guidelines and regulations can create uncertainty for podcasters, leading to self-censorship or avoidance of sensitive topics. enforcement challenges: regulators may face difficulties enforcing regulations, particularly if podcasters are based abroad or use anonymous or pseudonymous identities. balancing regulation and innovation: over-regulation can stifle innovation and creativity in the podcasting industry, while under-regulation can lead to irresponsible content. african customary and religious law review (acarelar) 5 (2024) 109 | p a g e 8. conclusion and recommendations the dark side of podcasting in nigeria, characterized by defamation and character assassination, underscores the urgent need for regulation. while podcasting offers a valuable platform for free expression and diverse content creation, its potential for misuse cannot be ignored. legislative measures are necessary to protect individuals from harm, preserve the integrity of public discourse, and ensure that podcasting remains a constructive force in nigeria's media landscape. balancing regulation with the need to protect free speech will be crucial in this endeavor. by drawing on both local and international experiences, nigeria can develop a legal framework that addresses the unique challenges posed by podcasting, while fostering a media environment that is both vibrant and responsible. the following measures may be helpful: development of clear guidelines: regulatory agencies should develop clear guidelines and regulations for podcasters, outlining acceptable content and behavior. industry self-regulation: encourage industry self-regulation, allowing podcasters to establish their own codes of conduct and standards. capacity building: provide training and capacity-building programs for regulatory agencies to enhance their understanding of podcasting and its regulatory challenges. international cooperation: foster international cooperation to address cross-border issues and share best practices in podcast regulation. public education: educate the public about responsible podcasting practices and the importance of respecting intellectual property rights and social norms. review and update existing laws: review and update existing laws and regulations to ensure they are relevant and effective in regulating podcasts. nwabachili & iloka: adoption of children in nigeria: problems and prospects 115 adoption of children in nigeria: problems and prospects* abstract with operation of regulatory instruments in nigeria, there are prospects for the challenges to child adoption. thus, this study focused on a critical analysis of the challenges and prospects for child adoption in nigeria. the research methodology was doctrinal using content analysis. the sources of data collection were literatures from physical library and e-library. this article found that the child’s rights act and other related legislation is not bereft of pitfalls and this impedes the progress of family law. it was recommended, among others, that the various agencies and ngos should, in consultation with the human rights commission and in collaboration with the office of the first lady of respective states, establish child protection institutions across the respective states to secure the future of the adopted children, while the legislators also should abridge the lacuna in the legislation. this article is significant to all stakeholders in child adoption in nigeria. keywords: child adoption, problems, prospects, nigeria 1. introduction the compelling factors and situations to this research is the fact that, there have been series of humanitarian crises in nigeria even currently as a result of boko haram insurgency in the north east, unending attacks by the fulani herdsmen on communities in the north central which made or rendered many children orphans and without the warmth of a family and parental care. the united nations humanitarian crises report (unhcr)1 reports that the boko haram insurgence has rendered child from 5,400 households orphans. for this reason, there is need to integrate these affected children into families to avail them a touch of parental love else, they grow with resentment and hatred for the society due their condition. furthermore, there is disparity of treatment meted to adopted children and biological children. for instance, how do adopted children and biological children fare within the families? most at times, these adopted children are sent to community schools, while the biological children attend good schools, mostly referred to as private schools. in nigeria, according to ojelabi and others2, the practice of child adoption is growing with improved public awareness through media, personal testimony, social research and other sources. it is interesting that both governmental agencies and the ngos are also promoting child adoption as a substitute to abortion to unintended/ unwanted pregnancy.3 2. the concept of child adoption adoption is a process whereby a person assumes the parenting4 of a person being between the developmental period of infancy and puberty.5 legal adoptions permanently transfer all rights6 and responsibilities, along with filiation7, from the biological parent or parents. according to the black’s law dictionary,8 adoption is the ‘statutory process of terminating a child’s legal right and duties towards the natural parents and substituting similar rights and duties toward adoptive parents.’ according to nwogugu,9 adoption is the process which ‘creates a parent-child relationship between the adopted child and the adoptive parents with all the rights, privileges and responsibilities between the child and the natural parents or guardians. adoption was unknown to common law and is entirely a creature of statute. while according to aduba,10 adoption is the process by which the legal relationship between a child and his natural parents is severed and re-established between the child and a third party or parties. in many jurisdictions, the adopted person's full original birth certificate is cancelled and replaced with a fabricated post-adoption birth certificate which states that the child was born to the adoptive parents. this deception, where carried out, may continue with the adopted person for life and can be the cause for many well *by chudi charles nwabachili, llb, bl, llm, phd, professor of law, department of private and public law, dean of faculty of law, chukwuemeka odumegwu ojukwu university, anambra state, nigeria. +2348033404185; and *chinwe patricia iloka, ba(ed), llb, bl, llm, phd, lecturer, faculty of law, chukwuemeka odumegwu ojukwu university, anambra state, nigeria. email: chypat4@gmail.com, cp.iloka@coou.edu.ng. telephone: 08035696281. 1united nations humanitarian crises report (unhcr), ‘the un refugee agency: supplementary appeal,’ (nigeria situation unhcr, july, 2016) 7 – 3 2ojelabi, o. a.; osamor, p. e. and owumi, b. e. ‘policies and practices of child adoption in nigeria: a review paper’, mediterranean journal of social science, vol 6, no 1 s1 (mcser publishing, rome-italy, 2015) 3aniebue, p. a and anujebu, u. u. ‘adoption practices in enugu’, nigeria journal of clinical practice 11(1) (2008) 5 – 8 4‘parenting’ online database<https://en.wikipedia.org/wiki/parenting> accessed 6th june, 2023. 5rathus s a childhood and adolescence: voyages in development (cengage learning, 2013) p. 48 6 ‘rights’ online database <https://en.wikipedia.org/wiki/rights> accessed 6th june, 2023. 7 ‘filiation’ online database <https://en.wikipedia.org/wiki/filtration> accessed 6th june, 2023. 8byran. a. g. black law dictionary, 8th ed. (thomson west: 2004)52 9 nwogugu, e. i. family law in nigeria, 3rd ed (hebn publishers ltd., ibadan, 2014) 333 10aduba, j. n. ‘family law,’ unpublished lecture notes (faculty of law, university of jos, february, 2018) mailto:chypat4@gmail.com mailto:cp.iloka@coou.edu.ng african customary and religious law review (acarelar) 4 (2023) 116 documented traumas experienced by the adopted person, including loss of identity, family history, culture, biological family (including not only biological parents but also siblings and extended family), family medical history and records, and increased risk of suicide, homelessness, incarceration, ptsd, depression, and anxiety.11 unlike guardianship12 or other systems designed for the care of the young, adoption is intended to affect a permanent change in status and as such requires societal recognition, either through legal or religious sanction. historically, some societies have enacted specific laws governing adoption; where others have tried to achieve adoption through less formal means, notably via contracts that specified inheritance rights and parental responsibilities13 without an accompanying transfer of filiations. modern systems of adoption, arising in the 20th century, tend to be governed by comprehensive statutes and regulations.14 legitimacy, in connection with adoption, is that a child becomes legitimate once he is legally adopted. 3. legal framework for adoption and rights of children in nigeria there was no statutory provision for adoption in any part of nigeria before 1965. this caused a lot of hardship to parties or actors in child adoption. there was a demarcation between legal provisions and the practice of child adoption itself. this quagmire continued until 1965 when the first adoption legislation in nigeria was eventually enacted in the then eastern region of nigeria.15 this legislation was known as the eastern nigeria adoption law 1965.16 however, this legislation was not effective to address the perennial problems that bedeviled child adoption in nigeria. the different traditions and cultures in nigeria still carried on their different practices regarding child adoption. in other words, there was conscious need to enact an all-encompassing legislation that will address the issues in customary adoption and same be made enforceable. therefore, just after the 1965 eastern nigeria adoption law, lagos state promulgated an adoption law in 1968 and other south western states subsequently followed with their own laws which had a lot in common with each other.17 this legislation did not cover the states in the northern region and as such they did not have any legislation on child adoption. even the international law came in concern about legislation on the child rights in about 20years after the nigerian 1968 enactment.18 thus, on 20th of november 1989, the united nations general assembly adopted the convention on the rights of the child (crc) and in july 1990, oau assembly of heads of states and governments adopted the african charter on the rights and welfare of the child (acrwc).19 presently, both international instruments contain universal set of standards and principles for survival, development, protection and participation of children. subsequently, nigeria signed both international instruments (crc and acrwc) and ratified them in 1991 and 2000 respectively.20 following these commitments, the nigeria federal government passed a comprehensive child’s right act 2003 into law. the act is presumed to be culturally sensitive, compatible, relevant and in the best interest of the nigerian child. it incorporates all the right and responsibilities of children and consolidates all laws relating to children into a single law.21 child’s rights act (cra) 2003 the nigerian child rights act provides for child adoption under part xii of the act. the part consists of 23 sections (124-148 of the act). the basic provisions in these sections are that: vi. all state should provide services and facilities to enhance child adoption practice; vii. prospective adopters must make application to a court of law; viii. only children whose parent/guidance consent to adoption or those who have compelling reasons to be adopted can be adopted; 11 ibid. 12 a legal guardian online database<https://en.wikipedia.org/wiki/legalguardian> accessed 6th june, 2023. 13in the nations of the european union and in the united kingdom, parental responsibility refers to the rights and privileges which underpin the relationship between the children and the children's parents and those adults who are granted parental responsibility by either signing a 'parental responsibility agreement' with the mother or getting a 'parental responsibility order' from a court. the terminology for this area of law now includes matters dealt with as contact and residence in some states. online database<https://en.wikipedia.org/wiki /parental responsibility> accessed 6th june, 2023. 14 wikipedia, ‘adoption’ online database<https://en.wikipedia.org/wiki/adoption> accessed 6th june, 2023. 15chukwu, l. o. c. adoption of children in nigeria under the child’s rights act 2003 (adoption of bill of rights, 2012) 45 16 it came into force on the 20th of may 1965 17iphey, ‘adoption laws of lagos state/practice and procedure, nigerian village square’ online database <http://www.nigeriavillagesquare.com/articles/guest-articles/adoption-laws-of-lagos-state-practice-and-procedure.html> accessed on 13th june, 2023. 18 ibid. 19unicef, ‘child rights legislation in nigeria,’ unicef nigeria-fact sheet (2011) online database <http://www.unicef.org/nigeria/child_rights_ legislation_in_nigeria.pdf> accessed on 4th june, 2023. 20unicef. the child's right act: unicef nigeriainformation sheet (2007) <http://www.unicef.org/nigeria /child_rights_ act.pdf> accessed on 6th june, 2023. 21unicef, ‘child rights legislation in nigeria,’ unicef nigeria-fact sheet (2011) online database <http://www.unicef.org/nigeria/child_rights_ legislation_in_nigeria.pdf> accessed on 6th june, 2023. nwabachili & iloka: adoption of children in nigeria: problems and prospects 117 ix. except the court sanctions it, the act prohibit payment to facilitate the adoption of a child; x. adopted children register must be maintained to record child adoption activities within a court; xi. no adopter or any other person shall facilitate re-adopting of an adopted child except with the court’s sanction; xii. and periodic visit to every child adopted under the act must be maintained to ensure their wellbeing; and xiii. it also provides for a system of child justice administration and a child’s rights implementation committees at all levels of government.22 this has also called for domestication by the states in nigeria. however, in 2011, eight years after the enactment of the law, only 24 out of the 36 states houses of assembly have passed the child rights act 2003 into law while others are still in the process of doing so.23 among these states are akwa ibom, lagos, plateau, oyo, nasarawa, ogun, etc. they do so because the belief that issues involving child rights protection are on the residual list of the nigerian constitution, thus they are within the legislative competence of the states.24 it is to be noted that the issue of child rights is no longer national but transcends to the regional and international law parlance. it is notwithstanding whether all the states in nigeria domesticate the national legislation or not. any act or omission that abuses the right of a child is actionable, nationally and/or internationally. constitution of the federal republic of nigeria 1999 (as amended) the constitution25 of nigeria also makes some provisions that guarantee the child of his fundamental rights for the reason of sharing in the same humanity. the constitution provides for the fundamental objectives and derivative principles of the state policy under its chapter 226. sections 17 and 18 provides for social and educational objectives respectively. some specific provisions which relate to child’s rights are section 18 (3) (a) which provides that the government shall ensure ‘free, compulsory and universal primary education’27 to children. also, section 17 (3) (f) provides that ‘children and young persons…are protected against any exploitation whatsoever, and against moral and material neglect’.28 this provision of the constitution does not make restriction to any kind of child, whether he be legitimate or illegitimate, adopted or non-adopted, orphan or non-orphan. that is to say, these provisions cover even an adopted child. however, and so unfortunate, these provisions being under chapter 2 of the constitution are non-justiciable, according to section 6 (6) (c).29 but there is a leeway to this. this is by taking leverage on chapter 4 of the same constitution. chapter 430 is about the fundamental rights of every citizen. the rights which can have much impact on the child’s rights include the right to life31, right to personal liberty32, right to freedom from discrimination33. section 46 of the constitution34 makes these fundamental rights justiciable and enforceable. therefore, adopted child’s right can be effectively protected and secured. beijing declaration: fourth world conference on women this is another legislation that has concern about the child’s rights. beijing declaration provides under declarations 23, 24, 29, 32 specifically focused on girl child’s rights.35 declaration 23 and 32 provides for full enjoyment by the girl child as it relates to human rights and fundamental freedoms and the protection of same against violation. declaration 24 provides for elimination of all forms of discrimination against girl child. declaration 29 provides for prevention and elimination of all forms of violence against girls. these provisions are so relevant to the child’s rights. though it focuses on only female child, but adopted child has some coverage based on these declarations by the beijing. convention on elimination of all forms of discrimination against women also gives credence to beijing declaration.36 nigeria ratified this convention on 13th june, 1985. 22 tajudeen, o. i. ‘adoption practice in nigeria-an overview’, journal of law, policy and globalization, 19 (n. p., 2013). 23 ibid. 24 nwogugu, e.i. family law in nigeria (ibadan heinemann, 1990)76 25 constitution of the federal republic of nigeria, 1999, as altered 26 ibid. 27 ibid. section 18 (3) (a) 28 ibid. section 17 (3) (f) 29 ibid. 30 ibid. 31 ibid. section 33 32 ibid. section 35 33 ibid. section 42 34 constitution of the federal republic of nigeria, 1999, as amended 35 beijing declaration: fourth world conference on women 36 article 5 (b) of the convention on elimination of all forms of discrimination against women, 1979. african customary and religious law review (acarelar) 4 (2023) 118 united nations convention on right of the child of 1989 this convention is very useful in any discuss about the child’s rights. thus, the nigerian child rights act has built on the foundation laid by this convention. the convention provides in its preamble part the meaning of the term ‘recognizing’ as it basically related to a child. the parties to the convention ratify it by ‘recognizing that the child for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love, and understanding’ (bold emphasis mine).37 article xvi provides as follows: (i) no child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home, or correspondence nor to unlawful attacks on his or her honor and reputation. (ii)the child has the rights to the protection of the law against such interference or attacks.38 article 3 of crc provides that in all actions concerning children, the best interests of the child shall be a primary consideration.39 article 32 of crc40 requires state parties to ensure protection of the child from economic exploitation and performance of hazardous work. this also affects both the adopted child and nonadopted child. they share equal rights as far as this convention is concerned. the convention was adopted in nigeria on the 20th november, 1989. national human rights commission act this is a nigerian legislation that was enacted by the national assembly of the federal republic of nigeria on the 27th day of september, 1995. this is an act by nigeria to establish the national human rights commission, for the protection of human rights, dignity and freedoms. national human rights commission act is a kind of an encyclopedia which accommodates, gives life, makes the effects of all other legislations having to do with the child’s rights, including the international law instruments. section 5 (a) of the act provides the commission shall deal with all matters relating to the promotion and protection of human rights guaranteed by all the above legislation, as well as other legislation having to do with human rights. in a nutshell, nigeria fully recognizes and is a party to international legislation (as examined above) that deal with the issues of child’s rights. in other words, apart from its domestic legislation, child’s right of adopted child in nigeria is also regulated and protected by international legislation. by implication, this can be invoked accordingly as the case may be. however, the basic instrument very much operational in the country is the child rights act and the child rights law of different states. 4. challenges to child adoption in nigeria cultural impediment or barrier statutory adoption permanently severs the relationship between the child and its natural or biological parents, but most cultures do not support formal adoption under the statutory law. this is because it permanently severs the relationship of the child with it natural or biological parents. a good example of his culture is found in the south-eastern nigeria. for example, the complicated ethno-religious beliefs and practices of the igbo people makes formal adoption difficult. most at times, adopted children are not usually accepted as born children of adopter.41 most of these adopted children in that society are treated as outcast and constantly reminded that they do not belong to the family. see aduba & ors v aduba42 where the respondent was adopted since when he was five years old and had married with children but the appellants denied him the right to partake in the share of the deceased (father) property on the ground that he is not a biological or natural child of the deceased. non-domestication of the child rights act by some states despite the enactment of the child rights act in 2003, there are some states that are yet to domesticate the act to allow for a uniform adoption process across the country as well as meeting up international best practices as the act itself is a domestication of the united nations convention on the rights of children. the consequences of this non-domestication of the child’s rights act are that, where there is a pre-2003 legislation on adoption, it will continue to apply. 37 united nations convention on right of the child, 1989. 38 ibid. article xvi (1) (2). 39 prince v massachusetts 321 us 158 (1944) judgment of january 31st 1944. 40 ibid art 32 (1) and (2) (a)–(c). 41ojelabi, o.a., osamor, p.e. and owumi, b.e. ‘’policies and practices of child adoption in nigeria: a review paper’, mediterranean journal of social science, vol.6, 1s1 (mcser publishing, rome-italy, 2015) 42 aduba & ors v aduba (2018) lpelr-43765 (ca) nwabachili & iloka: adoption of children in nigeria: problems and prospects 119 abuse of adopted children by their adopted parents most people find it very difficult to give up their children for adoption. this is because, most adopted children are being abused by their adoptive parents. sometimes, the children are usually assaulted, physically abused. restriction of adoption to only citizens of nigeria section 131(1) (d) of the cra43, makes it mandatory for the applicants to be citizens of nigeria and in the case of joint application, both applicants should be citizens of nigeria. this is a big challenge to foreigners who intend to adopt but they are not citizens of nigeria. based on the provision of the act, only citizens of nigeria may apply for adoption of a child. though, there seems to have abuses of adopted children in other countries, solution does not lie in outright prohibition of foreigners from adopting and worst where it is a joint application by a nigerian and non-nigerian couple. social stigma there are social stigmas associated with couples who adopt due to fertility issues. they suffer one of the worst humiliations in the society and are mostly reminded of the fact that, the adopted children are not their biological children. because of this stigmatization, couples having fertility issues would rather choose to stay alone than to adopt and become a target of scorn and humiliation. in order to put an end to this stigma, most couples who have adopted will begin to neglect the adopted children the moment they start to have their own biological children. nonrecognition of adoption under islamic law islamic law does not allow for adoption of children. it only recognizes fostering and guardianship.44 the nonrecognition of adoption under islamic law denies couples or individual who wishes to adopt based on the provisions of the cra. as a result of this non recognition, couples or individual who wishes to adopt will be left with the only option of fostering the child. fostering does not severe the relationship of the child with its natural or biological parents but restricts the performance of parental responsibility to time and the child may be withdrawn from the custody of the foster parent at any time. the repercussion of this is that, the foster parent will continue to live in constant fear of losing the child someday to its biological or natural parents. 5. prospects of child adoption in nigeria there are some basic things which if done will promote the effectiveness of child adoption. they are: awareness campaign among all actors commencement of an extensive and forceful awareness campaign among all actors in respect of the basis and contents of the cra and state obligations to promote and protect the rights of a child can be a focus. it is also to see that state legislatures, civil society groups, grand khadis and the ministries of women affairs, child and justice at the state level to tune their respective draft laws on the promotion and protection of the rights of a child by reflecting their positive socio-cultural and religious factors that seek to promote the child’s interest and wellbeing. amendments of the child’s rights act there is a bill to amend the cra to allow for adoption by non-nigerians. while in the case of a single application by non-nigerian couples, adoption should be allowed subject to restriction of travelling out of nigeria with the child. but the permission of the court must first be had and obtained. this will give room for adoption under a statute and help check the cases of child trafficking and illegal adoption. orientation and enlightenment the series of humanitarian crises from boko haram insurgency, fulani herders-farmers mayhem, militancy, flood, etc. render many children orphans and homeless. there is need to enlighten the public on how to adopt and reintegrate these children into families to avail them a touch of parental love. otherwise, they will grow with resentment and hatred for the society due to their condition. functionality of the family court there is also need to ensure that adequate enquiries are been conducted before adoption could be allowed so as to prevent cases of maltreatment of such adopted child or children by his/her adoptive parents. 43 2003. 44nwogugu, e. i. family law in nigeria (ibadan heinemann,1990)326 african customary and religious law review (acarelar) 4 (2023) 120 6. conclusion and recommendations though the federal government of nigeria has dissuaded the procedures of child adoption from various nigerian cultural practices to the regulation of a statute called the child rights act, the procedures under the act is still faced with a lot of challenges as well as enviable prospects. however, notwithstanding the shortcomings, there are a lot of pluses to the practice and procedures of child adoption in the present nigerian society as compared to the antiquity. this makes the statute on child adoption and other related legislation plausible and commendable. basically, these have been what this research work has been committed to exploring and critically examining. thus, the researcher has carefully presented the findings in a critical and systematic order. the following measures may be useful: d) the governments, in collaboration with the ngos, should raise funds to widely produce, gazette and distribute the child rights act and child rights laws of the domesticated states to all relevant stakeholders in the child protection sectors, including the motherless babies’ homes and any prospective adopter. this will go a long way to promoting child adoption. e) the national assembly should also resuscitate and form steering committees that will work with houses of assembly of all the states towards the enactment and implementation of the child rights law in states which have not done so. this will discourage the traditional, customary, and ethnoreligious practices on child adoption for the law to have its place. f) the government at different tiers should properly fund and equipped the various institutions in relation to child’s right and adoption. g) the chief judge of the state should immediately takeover thorough supervision the family courts and ensure protection of the rights of adopted children. h) the governments and/or the ngos should renovate the existing children’s homes to meet the needs of children living with disabilities and to also provide them with other educational facilities. this will also encourage prospective adopters to give more value to any child they will adopt. i) as a way of checking the abuse of adopted children by their adoptive parents, there should be an efficient social welfare department that regularly sends the child development officers on visits to adoptive homes to conduct investigations in order to ensure that such children are not abused or maltreated. onah & ozioko: the rule of law as a determinant of good governance in nigeria’s democracy 81 | p a g e the rule of law as a determinant of good governance in nigeria’s democracy* abstract the basic tenets of the rule of law and good governance such as equality before the law, protection of basic human rights, efficient affordable and an independent judicial system, separation of powers between the various arm of government, observance of internal rules and restraints etc have consistently been eroded in nigeria giving rise to a near total collapse of every facet of the country. this paper found inter alia that regrettably, governance in nigeria has over the years been consistently characterised by little or no adherence to the basic tenets of good governance and rule of law. the result is the continued emergence of strong personalities both within and outside the government who live above the law rather than strong institutions that can maintain and maintain good governance and rule of law. the paper equally found that in order to rescue the country from its present chaotic state, there is need to adopt and apply new public management strategies as well as re-energization of the civil society towards a common social motive devoid of ethnic, religious, cultural and other primordial inclinations and divisions. this work therefore recommends that the key tenets of rule of law should vigorously be pursued both by the government and the governed so as to achieve the legacy of good governance and an enduring democracy in nigeria. keywords: rule of law, good governance, democracy, nigeria 1. introduction stability and orderliness are favourable conditions for effective enterprise and national development. law stipulates the mode of operation of government and regulates the interaction between the government and the people as well as the people inter se. rule of law on the other hand, simply means supremacy of law in the governance of any society. rule of law removes arbitrariness in governance that gives room for corruption and abuse of office. it standardises governance and legal procedures, protects peoples’ rights and encourages enterprise and investment. rule of law enhances stability, accountability, orderliness and efficiency which are veritable conditions for development to thrive. similarly emerging trends point to good governance as a panacea towards accelerated development in economic, political and social sectors of nations. as such, it has been posited that nations wishing to realize, promote or maintain economic, political and social strides, should strive to embrace good governance. efficient political and economic strands promote social order. good governance must therefore be present if development administration is to meet the underlying rationale it stands for. both the leaders and the led have their (individual) roles to play to embrace good governance and strengthen development administration. the developed nations of the world are shining examples of promotion of national development through the application of good governance in their development administration. the experience of these nations attest to the fact that the basic and most fundamental way of achieving good governance in any nation is through adherence to and promotion of the rule of law. nigeria is a plural society with a preponderance of arbitrariness of government functionaries in the execution of their duties.1 the situation has given rise to abuse of office and the use of public office for personal interests. there is a high wave of corruption, injustice, and inefficiency in government circles which translates to socioeconomic instability. laws are twisted and manipulated to satisfy the selfish and personal interest of some individuals thus creating multiple standards in the application of the law. the law is subjugated to the whims and caprices of political leaders. this situation had led to many nigerians losing interest in the sacredness of the law and its ability to make for a stable and orderly society where people are encouraged to work hard and invest in. globally, people over the years have been clamouring for the enthronement and application of the rule of law with the call intensifying with the popularity of democracy and global interest on human rights. there have been many discussions on the impact of rule of the law on development. most stable and developed nations adhere strongly to the tenets or principles of rule of law while most young developing nations have a poor record of observance of these principles. this is predominantly because most people in developing societies like nigeria do not have confidence that the law will take effective care of the society and enhance its development. they believe more in having charismatic and benevolent leaders who will govern by their good will and not necessarily by the law. *by chinedu a. onah, llm, lecturer, department of commercial and property law, faculty of law, nnamdi azikiwe university, p.m.b. 5025, awka, anambra state, nigeria. email: ac.onah@unizik.edu.ng; chineduonah@nigerianbar.ng. phone number: +2348064794333; and *m.v.c. ozioko, phd, reader and formerly head, department of international law and jurisprudence, faculty of law, nnamdi azikiwe university, p.m.b. 5025, awka, anambra state, nigeria. email: mv.ozioko@unizik.edu.ng. mvcozioko@gmail.com; phone number: +2348039464374 1onichakwe, cc, ‘the role of good governance and development administration in national development’(2016) international journal of development and management review (injodemar) vol. 11 pp 176-186. african customary and religious law review (acarelar) 3 (2022) 82 | p a g e it is a common experience that in most developing nations, like nigeria, government officials and their associates live above the law. the nations are administered by the arbitrary decisions of the officers creating room for abuse of office, corruption, violation of people’s rights, injustice, marginalisation of minorities and inconsistency of government policies and actions which are social evils that have become endemic in most developing nations. while it is agreed that observance of the rule of law comes with many challenges, it must be observed that it is a veritable instrument that helps to check arbitrariness in governance and curb most of the excesses of government. it also creates an enabling environment for justice, fairness, liberty and consistent government policy that will enhance enterprise and development. ideally, government is representative and accountable; representative in the sense that its policies align with citizens’ interests, and accountable in the sense that it is answerable to citizens for its conduct and responsive to their demands.2 the legal regime obtainable in any nation plays an important role in determining how representative and accountable a government is in practice. the most widely praised as the best system of government in our contemporary world is democracy, which allows for high level of peoples participation in decision-making and policy formulation through representatives. good governance in development administration is showcased in government‘s ability to design, formulate and implement policies and programmes which are development oriented and committed to the improvement of the quality of life of the citizens. it is especially accepted, that to promote good governance, the civil society should be obedient to the policies or constitutional dictates expected of them. however, the government through its arms should lead while the citizens follow. 2. rule of law in order to fully appreciate the meaning of the concept of rule of law, it is necessary to first examine the meaning of law. scholars are not agreed on any one conception of law. there are as varied definitions of law as there are different schools of jurisprudence. austin in his positivist conception of law emphasised the command aspect of the law by defining law as ‘the command of the sovereign’. the proponents of the realist school of thought, under the influence of oliver wendell holmes, propound that ‘law is a prediction of what the court will enforce,’ emphasising the judicial procedure of the law. the continental scholars emphasize the moral and natural law aspect of law and conceive it as what ought to be or what is right.3 the united nations defines the rule of law as; a principle of governance in which all persons, institutions and entities, public and private, including the state itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. it requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.4 however, for the purpose of this discourse, this paper will adopt the views of anyaehie who posits that in order to have a general picture of what the law is, it is necessary for its characteristics to be described. anyaehie then proceeded to describe law as; institutionalised complex whole of social norms rationally articulated and promulgated by the person who is in charge of the society. it is precise and open to objective interpretation by the courts and has coercive power to regulate human behaviour for maintenance of order in the society. law is a command that is definite, public, predictable, authoritative, obligatory, sanctionable and universally applicable. its aim is to create order, establish plan of action, systematise and objectify mode of action. law is established to create enabling environment for peaceful co-existence of members of a society by stating the guidelines for acceptable interpersonal relationship. law moderates people’s behaviour to be in conformity with the goal of the society. it is codified rationally articulated pragmatic norms aimed at maintaining social justice, harmonious co-existence and progress of the society. once law is established it has to be obeyed to achieve the desired result in the society.5 rule of law means the supremacy of the law in the administration of a society. it implies that the society is governed according to the dictates of the law and no one, institution or even the government is above the law. under rule of law, ‘the governmental authority is legitimately exercised only in accordance with written publicly disclosed laws adopted and enforced in accordance with established procedural steps that are referred to as due 2c kam, representation, accountability and electoral systems’ (2016) canadian parliamentary review, pp17-21 at 17 3p bohannan, ‘law and legal institutions’international encyclopedia of social sciences, david l. sills (ed) (new york: the macmillan company and the free press, 1968, vol.9) 4report of the secretary-general, the rule of law and transitional justice in conflict and post-conflict societies (2004) 5m c anyaehie, ‘rule of law panacea for national development in nigeria’ (2009) 3 nigerian journal of humanities and social sciences, p 132 onah & ozioko: the rule of law as a determinant of good governance in nigeria’s democracy 83 | p a g e process’. any governmental action in excess of what the law provides is illegal and should attract sanctions on the officers concerned. it is a check to arbitrary governance. it aims at establishing governance that is transparent, just, fair, consistent, orderly and respect for human liberty. it curbs tendencies to dictatorship and mob rule. the rule of law, sometimes called the supremacy of law, provides that decisions should be made ‘by the application of known principles of laws without the intervention of discretion in their application.’6as defined above, rule of law means the equality of all persons before the law or equal subjugation of all classes to the ordinary laws of the land, administered by the ordinary courts. this therefore connotes that no man is above the law and that everyman whatever his rank or status or condition, is subject to the law of the land and the jurisdiction of the ordinary courts. in practical parlance, the rule of law presupposes the following as enunciated by the supreme court in the case of governor of lagos state vs ojukwu (1989) 3 nwlr (pt.18) 621, per oputa jsc namely: 1. that the state is subject to the law; 2. that judiciary is a necessary agency of the rule law; 3. that government should respect the right of the individual citizens under the rule of law. 4. the judiciary is assigned both by the rule and by our constitution, the determination of all actions and proceedings relating to matters in dispute between persons or between government and or authority and any person in nigeria. the import and connotation of the term ‘rule of law’ will equally be better appreciated if recourse is also had to the observation of the supreme court in the case of registered trustees of the apostolic church v olowoleni 7 wherein obaseki jsc (as he then) was put the matter in proper perspective in the following eloquent expression: ‘the rule of law and the rule of force are mutually exclusive. law rules by reason and morality, force rules by violence and immorality.’ the above postulation presupposes therefore that law and morality are somewhat integral and indeed inseparable parts of rule of law. it is also inferable from the same passage that rule of law has no place for violence and immorality. the reason for this is not farfetched. both violence and immorality breed rancour, acrimony and other terrible vices in the society. with this exposition on the doctrine of rule of law, it could be seen that the rule of law and democracy go hand in hand. thus, where there is true democratic governance, governance must be tailored in its operation in accordance with the rule of law. where rule of law is absent, it becomes apparent that true democracy is absent in that society. the concept of rule of law embodies the following; (1) the basic principles of equality of all before the law irrespective of social standing, belief or birth; (2) constitutional and actual guarantee of basic human rights; (3) clear definition of laws with fair, affordable, transparent and effective judicial procedural system; and (4) protection of citizens against arbitrary use of state authority and lawless acts of both organisations and individuals. rule of law also involves separation of legislative, judicial and executive powers to ensure good, just and fair legislation, interpretation and implementation of the law. ‘rule of law’ is different from ‘rule by law’. under ‘rule by law’ systems, the law is an instrument of the government and the government is above the law. the law is there to assist the government in controlling the people without subjecting the government to it. this is prevalent in dictatorial and developing nations where government officials see the law as a tool which can be manipulated and used as the officials deem fit. under the ‘rule by law’ systems the law is perceived as instrument to enhance instead of limit the powers of the government. military regimes in nigeria operated ‘rule by law’ in which laws are promulgated to legitimise arbitrary actions of the regime.8 in fact, in view of the current realities of our time, it may be safe to assert that the said system has also permeated the successive civilian regimes in nigeria. this opinion is predicated on the often arbitrary inclinations of those in the executive arm of the government to subdue and undermine the powers of both the legislature and the judiciary especially through control of the finances and the coercive powers of the state. some government functionaries operate as though they are immune from the law. in contrast, under rule of law, no one is above the law, not even the government. the law limits the government as the government acts within the confines of the law. rule of law is more prevalent in the liberal societies of europe and united state of america than in the developing countries of africa and some parts of asia and latin america. 6sp anuye, ei akombo & md abdulsalami, ‘the doctrine of the rule of law; a necessity to democratic governance’ (2017) global journal of human social science volume xvii issue iv. pp 29-39 7(1990) 6 nwlr (158) 514 8the several constitution (suspension and modification) decrees promulgated by the different military regimes in nigeria underscore this point. those decrees were primarily made to subjugate the provisions of the constitution to the whims and caprices of the military dictators and obviate the practical implications of those parts of the constitution that are suspended or modified. african customary and religious law review (acarelar) 3 (2022) 84 | p a g e rule of law is also opposed to rule of person. ‘the common feature of rule of person is the ethos that ‘what pleases the ruler(s) is law’.9 the ruler could be one or few persons as in cases of tyranny and oligarchy, or many people as in cases of tyranny of the majority or momentary emotions of the people in form of popular opinion as in ancient greek democracy. it is a government run by the discretion of the ruler and there is no limit to the authority of the ruler. for instance, the military regimes in nigeria like the nazi government in germany arrogated to themselves the authority to act on their own volition and without being subject to any checks or limitations of the law. they were not accountable to established laws and often engaged in extra judicial activities. but rule of law emphasises that the law should limit the discretionary power of the ruler even on the powers to make or change laws. no matter the popularity or vision of any governmental policy it must be in conformity with the dictates of the law. 3. good governance generally, the social contract theory, believes that the terrible, violent, unsecured and unpredictable state of nature compelled men to come together, under a social contract, and surrender their rights to security of personal lives and property to the state. the state is expected to protect the personal lives and property of the citizens, as well as their general welfare. the state, as an amorphous entity, cedes this power to a smaller and proactive agency called the government. good governance, therefore, includes the processes and products of the government towards the fulfilment of the social contract it has with the people. governance has been defined to refer to structures and processes that are designed to ensure accountability, transparency, responsiveness, rule of law, stability, equity and inclusiveness, empowerment, and broad-based participation.10 governance also represents the norms, values and rules of the game through which public affairs are managed in a manner that is transparent, participatory, inclusive and responsive. it relates to decisions that define expectation, grant power, or verify performance. it consists of either a separate process or part of decision making or leadership processes.11 in modern nation-states, these processes and systems are typically administered by a government. in a broad sense, governance is about the culture and institutional environment in which citizens and stakeholders interact among themselves and participate in public affairs. it is more than the organs of the government. often, there is a tendency to equate governance with management, the latter primarily referring to the planning, implementation and monitoring functions in order to achieve pre-defined results. management encompasses processes, structures and arrangements that are designed to mobilize and transform the available physical, human and financial resources to achieve concrete outcomes. management refers to individuals or groups of people who are given the authority to achieve the desired results. governance systems set the parameters under which management and administrative systems will operate. governance is about how power is distributed and shared, how policies are formulated, priorities set and stakeholders made accountable. in the development literature, the term ‘good governance’ is frequently used. in particular, the notion of ‘good governance’ is promoted as a necessary pre-condition for creating an enabling environment for sustainable human development. good governance has also been accepted as one of the targets of the millennium development goals (mdgs). the good governance agenda stems from the concern with the effectiveness of the development efforts. good governance is, however, a difficult concept, as it is not always easy to define. it is susceptible to plethora of different definitions depending on the perception of the person considering same. it is however, generally accepted that good governance is expected to be participatory, transparent, accountable, effective and equitable and promotes rule of law.12 specifically, good governance involves; enthronement of a democratic government, which guarantees equal participation of all citizens in governance; provision, promotion and sustenance of the rule of law; adherence to and protection of the constitution; promotion and protection of the fundamental human rights of the citizens; provision and sustenance of the freedom of the press; availability of a transparent, accountable and participatory governance at all levels of government; regular, free and fair elections; as well as provision of basic amenities, such as, portable water, electricity, qualitative education, healthcare delivery, good roads, among others. good governance starts from a recognition that the nation, institution or enterprise is operated for the benefit of others, with an obligation of accountability. leaders are entrusted with authority to manage in order to deliver benefits to their citizens, but they must have the courage, humility and self-control to put in place checks on their authority. 9 li, bo, ‘what is rule of law?’ perspectives (vol.1, no.5), <www.doge.us/govecon/what_is_rule_of_law,>accessed, august, 2022. 10unesco international bureau of education, ‘concept of governance’ <http://www.ibe.unesco.org/en/geqaf/technicalnotes/concept-governance> accessed on 10/08/2022 11anuye, akombo and abdulsalami, op cit, p.34 12yk sheng, ‘what is good governance?’<https://www.unescap.org/sites/default/d8files/knowledge-products/goodgovernance.pdf> accessed on 09/08/2022 onah & ozioko: the rule of law as a determinant of good governance in nigeria’s democracy 85 | p a g e in short, governments must be ‘epitomized by predictable, open and enlightened policy making; a bureaucracy imbued with a professional ethos; an executive arm of government accountable for its actions; and a strong civil society participating in public affairs; and all behaving under the rule of law.’13 the world development report long ago identified the key elements of good governance as follows: (1) internal rules and restraints (including internal accounting and auditing systems, independence of the judiciary and the central bank, civil service and budgeting rules); (2) ‘voice’ and partnership (including mechanisms for public deliberation of proposed laws and the enabling of partnerships among different actors in society); competition (including competitive social service delivery and private participation in infrastructure).14 these attributes of good governance are ultimately reflected in the extent to which the security and prosperity of individuals are being well-served by their governments. at a bare minimum, good governance with accountability and transparency is a foundation for peace and stability, without which all of societies’ greater aims cannot be achieved. indeed, because public services15 account for much of a country’s economic activity, effective public service delivery is integrally tied to economic growth. good governance therefore requires all hands to be on deck. it entails the sum total of the ways in which individuals and government institutions manage their common affairs for the good of the state and the citizens. elements of good governance include; (1) political accountability (2) regular elections to legitimize the exercise of political power or democratic polity. (3) participation by various social, economic, cultural and professional groups, in the process of governance and decentralization of power to local organizations (4) freedom of information (5) efficient and effective administrative system (6) transparency (7) rule of law (8) independence of the judiciary (9) cooperation by government and civil societies (10) bureaucratic accountability 4. democracy democracy is the government put in place by the people, which upholds the spirit of social contract between the state and the people, ensures equitable distribution of the state resources and equal opportunity for all its citizens, and whose operations are based on the rule of law. abraham lincoln in the 1863 gettysburg address, borrowing the words of john wycliffe in his prologue to his translation of the bible in 1384, defined democracy as ‘the government of the people, by the people, for the people’. on attainment of independence on october 1, 1960 the post independent government of nigeria adopted a democratic rule, which was interrupted by military interregnum from 1966 to 1979. the country was returned to civil rule on october 1, in 1979, which lasted till december 31, 1983 when the military struck again and sacked major democratic structures and institutions. democratic rule was restored in the country on may 29, 1999, and, since then democracy has been on experimentation in nigeria. it is generally believed that the return of the country to electoral democracy in 1999 has not made any significant impact on the economy and general wellbeing of the people because of the manipulating nature and character of the political elite. democracy thrives on enabling practices and institutions that guarantee political growth through fair play, debates, compromise and healthy opposition. the prerequisites for a thriving democracy are conformity with certain normative principles, their internalization and acceptance as doctrines of political participation. the core of such normative principles is the rule of law. other principles are; a functional legislature; existence of vibrant political parties; periodic elections; independent judiciary; political accountability and legitimacy and; a robust civil society. democracy ensures meaningful and extensive competition among individuals and organized groups (especially political parties), either directly or indirectly, for the major positions of governmental power it entails a highly inclusive’ level of political participation in the selection of leaders and policies, through regular and fair elections, such that no major (adult) social group is excluded, and a level of civil and political liberties, freedom of expression, freedom of the press, freedom to form and join organizations sufficient to ensure the integrity of political competition and participation.16 5. relationship between rule of law and good governance in a democracy 13 world bank, governance: the world bank’s experience (1994) 14 world development report (1997). 15 such as in health, transport, and education 16 so eboh, ‘democratic culture, the church and democratization in (west) africa’, in nwaigbo, f. et al (eds.), church and democracy in west africa. port-harcourt: ciwa publications, nigeria, 2003, p. 68. african customary and religious law review (acarelar) 3 (2022) 86 | p a g e good governance and the rule of law are essential preconditions for the sustenance of a democratic government because they are prerequisites for peace and stability, without which societies cannot function, let alone flourish. the commitment to transparency and accountability inherent in good governance promotes the rule of law over corruption, allowing the many benefits of other sustainable development initiatives and economic inputs to reach those in society who most need to benefit from them.17 the relationship between the rule of law and good governance in any democracy is so intricate and organic. they are also interdependent that none can survive without the other. the rule of law guarantees personal liberty and freedom and a whole gamut of fundamental human rights. it provides the conditions on which government functions, including the qualifications of people who can hold public offices. the law stipulates the type, nature and scope of government, as well as the nature of relationship among the organs of government. it provides equal opportunities for all citizens and makes provisions on how the personal freedom and liberties of the people will be promoted and protected. commenting on personal liberty, freedom and equality of individuals as the essential elements of the rule of law, laski posited as follows; a state built upon the condition essential to the full development of our faculties will confer freedom upon its citizens. it will release their individuality. it will enable them to contribute their peculiar and intimate experience to the common stock. it will offer security that the decisions of the government are built upon the widest knowledge open to its members. it will prevent that frustration of creative impulse which destroys the special character of men.18 for the rule of law to be supreme, the three organs of government should be independent of one another for proper checks and balances to be in place. the judiciary must be vibrant and fearless, otherwise the executive’s excesses may go scot free. democracy will remain an article of faith if the law is not supreme. the constitution guarantees the fundamental human rights, such as right to life, right to dignity of human person, right to personal liberty, right to fair hearing, right to private family life, right to freedom of religion, right to vote and be voted for in elections, right to freedom of expression, among others, yet if the law is not supreme the citizens will not enjoy these rights; at least, not against the government or government institutions and functionaries. democracy provides all these rights, but if the people cannot enjoy them, then, there is no democracy. if people cannot freely elect their representatives in government, as well as control the government, then that government is not democratic. if people are disenfranchised for no genuine reasons and prevented from active participation in the electoral process, then its product is not democratic. good governance sustains democracy, which guarantees the fundamental human rights, including freedom of the press. the media are the purveyors of information on both the rule of law and democracy. the mass media inform, educate, entertain and sensitize people on government and private activities as they affect the public, as well as draw the attention of the people to events, environmental issues and other important matters that have consequences on the citizens. the summary of this relationship is that democracy can only exist in a state where there is the rule of law, otherwise the latter will remain an article of faith without democracy. while good governance on the other hand sustains both of them. 6. rule of law and good government in nigeria the ability of the government to accommodate public opinion in decision making, implement such policies with intermittent evaluations to ensure compliance is vital. it is equally ideal, to guarantee the principle of rule of law objectively as this will, in no doubt, promote peace in the society. formulation and implementation of friendly policies will attract and encourage the citizens to participate both in economic and political activities freely within the confines of the state‘s policies. the smooth operation of economic and political activities will ensure social order. good governance equally accommodates aspects of a civil society inclusion. in this wise, sharma, sadana and kaur observed that, good governance establishes the rule of law, enforces contracts and agreement between the individuals, maintains law and order, guarantees security to the people, economizes on cost and resources, protects the government and properly delivers services to the society. it also determines an optimal size of the government and makes best possible use of government resources.19 continuity in implementation of government policies and projects, is an element of good governance. however, what is usually experienced in nigeria is that rather than implementing good policies initiated by an opposition party, political office holders often jettison the implementation and completion of such policies or projects. this accounts for a high rate of abandoned projects scattered in all the nooks and crannies of nigerian. again, development is not a linear process that can be reproduced from country to country.20 nigeria cannot adopt undigested liberal theories of state reconstruction if it hopes to benefit from some of the most compelling values. it must 17united states council for international business. ‘good governance & the rule of law’ january 2015 business priorities for the u.n. sustainable development goals 18h j laksi, laski on the communist manifesto: mentor series (uk: penguin books ltd, 1982) 19 mp sharma, bl sadana, h kaur, public administration, in theory and practice. (india: kitab mahal, 2014) p. 64 20m mutua, ‘africa and the rule of law’ (2016) international journal off human rights issue 23, pp 159-173 onah & ozioko: the rule of law as a determinant of good governance in nigeria’s democracy 87 | p a g e identify and rethink many normative tenets of liberalism and the rule of law in order to fashion out a workable system that best suits its own local circumstance. this is necessary to respond to the particular historical challenges and cultural context of the african landscape. thus, the rule of law cannot be exported to africa ready-made. the rule must be divorced from its imperialist origins and uses. africans need to identify and isolate those thematic, normative, and sectoral areas most likely to be impacted the most by the language of rights, and use the rule of law to transform them. many of them are overarching and cross-cutting. the core values are: integrity, transparency, accountability, equity, equality, access, and participation. no sustainable development which gives citizenship meaning and every citizen a sense of belonging and allows a culture of justice is possible without them. simply put, the rule of law is meaningless without each of these core values which must be addressed it is the view of the writers that the judiciary which is the third arm of the government and the last bastion of hope for the common man plays a very important role is this quest. this is because on it is vested the power to adjudicate on all matters between persons or between government or authority and any other person in nigeria, and all actions for the determination of any matter relating to the civil rights and obligation of the person. this function is discharged through the instrumentality of the courts.21 however, it is not possible to administer justice and effectively apply the law to execute its function as an instrument of social engineering under the condition in which the nigeria judiciary has found herself. factors militating against the effective dispensation of justice by the courts are many; they include lack of financial autonomy, executive lawlessness and undue interference, poor infrastructure, inadequate qualified personnel, nepotism, corruption, ineptitude etc. these facts which were prevalent during military era have continued unabated even under the present democratic dispensation strengthening the system of administration of justice among others is necessary to foster social order.22 one major factor affecting the application of the rule of law is executive interference and the activities of the members of the bench themselves. it seems from recent experience that the elite political class have devised a means of actualising their political interests through the instrumentality of the law courts. it will be recalled in this regard that the annulment of the june 12 election in 1993 was said to be predicated on the judgements of the then chief judge of the federal high court, justice dahiru saleh (rtd) and justice bassey ikpeme of the abuja high court. the suspension and eventual of the retired former chief justice of nigeria justice walter nkanu onnoghen by the president buhari was based on the order of the code of conduct tribunal presided by mr danladi umar. there have also been numerous conflicting orders of courts relating to electoral matters in recent times. it therefore seems that some members of the bench are often ready to make themselves willing tools for the achievement of private political interests of the politicians. judges should therefore appreciate their roles as ‘social engineers’ by their work and seek through the instrumentality of the law to better the society just like the eminent lord denning, who through the application of equity, revolutionised the law in many ways not only in the united kingdom but all over the globe. 7. conclusion and recommendations the rule of law, democracy and good governance are the major features of any civilized society today. the governance of any state where any of them is lacking often degenerates to dictatorship and authoritarianism. the rule of law provides the general framework for good governance. democracy floats on the rule of law, while good governance promotes and sustains both of them. nigeria is governed by the rule of law and democratic principles despite some present limitations. good governance is the destination of both democracy and the rule of the law. the media is also a necessary to sustain both the rule of law and democracy. however, despite many years of civil rule, nigeria is yet to witness triumvirate of the rule of law, democracy and the media for improved good governance. except an immediate overhaul of the structural, economic, legal, educational, administrative and other bureaucratic impediments is done, the rule of law and sustainable democracy may remain elusive in nigeria. as development administration strives to meet with its expectations, the attachment of good governance will definitely propel it to the forefront. there is the need to apply new public management strategies. good governance entails balanced governance with conducive and uninterrupted relationship between the government and the civil society as active player. the challenge of good governance requires government activities to be reinvented, bureaucracy to be repositioned, civil society activities to be re-energized with a social motive. it is generally agreed that the rule of law is one of the fundamental drivers of good governance; and that good governance culminates in development administration. it is recommended that the application of various streams of elements and components of rule of law and good governance as highlighted by this work will enable nigeria achieve a development an administration arrangement that will propel the realisation of its expectations. the three arms of government should be allowed to efficiently perform their functions within the ambits of the law without external influences. administrators and government officials should be trained and equipped with the requisite legal, institutional and policy frameworks to realize efficiency, whilst the civil society should also play its complimentary role by living up to the expectation of making the leaders at all levels to be accountable and live up to their respective responsibilities. 21 s. 6(6) (b) of 1999 constitution 22b p frohnen, ‘the limits of law’ <https://isi.org/intercollegiate-review/the-limits-of-law/> accessed 10/07/2022 african customary and religious law review 1 (2020) page | 79 effects of female genital mutilation in nigeria: any legal remedies?* abstract female genital mutilation is another form of sexual politics. fgm is recognized internationally as a violation of the human rights of girl child. it reflects deep-rooted inequality between the sexes, and constitutes an extreme form of discrimination against women. given these backdrops, this study became a prerequisite task to critically explore the malaises and legal prospects vis-à-vis the status of female genital mutilation in nigeria. the objectives of this study were to appraise the legal status and effects of fgm as human rights violation that prevents girls from enjoying optimal health. it was also to examine the challenges faced by the girl child and to proffer the wayforward to curbing the menace of fgm in the nigerian society. the research design and methodology was doctrinal approach, using analytical and descriptive research methodology. the main sources of data collection were various legal documents and materials, both from the library and internet, and covering the primary sources and the secondary sources. for the summary of findings, it was submitted among others that the term fgm is common all over the third world countries and has inflicted dangerous and devastating effects on young girls who are compelled to undergo this dehumanizing and painful cutting of their genitals. it was further observed that fgm is driven by superstitious belief and has many effects on girls' health which included increased risk of infections, cervical cancer, death during childbirth, and obstetric fistulas. moving from the prevailing cankerworms, the study rested its prospect on the law as the leeway to the malaises. that is to say, the necessity for the enforcement of the fundamental rights provided under chapter 4 of the constitution of the federal republic of nigeria, 1999, as amended cannot be overemphasized. accordingly, it was therefore recommended among others that all perpetrators, violators, and supporters of fgm should be sanctioned by enacting relevant law to that effect, prosecution, and enforcement of fundamental rights. this study was tailored to have significant to civil societies, human right lawyers, judges, legislators, traditional aficionados, and every stakeholder in relation to fgm. keywords: child, female, genital, mutilation, cutting, legal, human rights, medical, social, psychological, prospects. 1. preamble female genital mutilation (fgm), also known as female circumcision or female genital cutting, is another form of sexual politics in nigeria. it is defined by the world health organization (who) as all procedures involving partial or total removal of the external female genitalia or other injury to the female genital organs for non-medical reasons.11 dirie narrated the plight of a girl thus ‘mama tied a blindfold over my eyes. the next thing i felt my flesh was being cut away. i heard the blade sawing back and forth through my skin. the pain between my legs was so intense i wished i would die’2 the who estimates that 140 million women and girls around the world have experienced the procedure.3 it is estimated that approximately 100-140 million african women have undergone fgm worldwide and each year, a further 3 million girls are estimated to be at risk of the practice in africa alone.4 fgm is typically carried out between the ages of four and ten, usually by a traditional circumciser using a knife, razor or scissors, scalpels, pieces of glass and no anesthesia, often iodine or a mixture of herbs is placed on the wound to tighten the vagina and stop the bleeding, although wealthier families may have it performed in a hospital. the practice is rooted in gender inequality, cultural identity, ideas about purity, modesty, aesthetics and honour, and attempts to control women's sexuality by reducing their sexual appetite, thereby promoting chastity and fidelity5. 2. female genital mutilation and inspections for virginity the nature and practice circumcision is basically the process of removing the foreskin of the genital organ for hygienic. circumcision is generally referred to the male sex. this is because it is restricted to the removal of the foreskin that covers the tip *by patricia chinwe iloka, baed, llb, bl, llm, phd, lecturer, department of private and public law, faculty of law, chukwuemeka odumegwu ojukwu university, anambra state, nigeria. phone no: 08035696281. email: cp.iloka@coou.edu.ng and chypat4@gmail.com. 1w dirie, ‘safeguarding rights and dignity’ online database <www.forwarduk.org.uk/key.issues/fgm> accessed on 10th september, 2021. 2ibid. 3 h sumaye, ‘female genital mutilation’ online database <http//wkipaedia.org/wiki/female-genitalmutilation> accessed on 10th september, 2021. 4 dirie (n1). 5m smith and j segal, ‘domestic violence and abuse: signs of abuse and abusive relation’ online database <http://google.com-domesticviolence-fsnic8237...> accessed on 20th october, 2021. http://en.wikipedia.org/wiki/anaesthesia http://en.wikipedia.org/wiki/chastity http://en.wikipedia.org/wiki/fidelity mailto:cp.iloka@coou.edu.ng mailto:chypat4@gmail.com http://www.forwarduk.org.uk/key.issues/fgm iloka: effects of female genital mutilation in nigeria: any legal remedies? page | 80 of the penis. this is done at infancy of a boy child because adult male can hardly bare the excruciating pains in the circumcision process. it can be done traditionally or in formal health centre. however, female circumcision on the other hand is basically referred to as female genital mutilation. this is because it serves different purpose from circumcision which is for hygienic purposes, but it is rather for deprivation of sexual pleasures in order to check female promiscuity. according to arinze-umobi, the word ‘[m]utilate’ means to severely and violently damage someone’s body or change something so much that it is completely ruined.6 female, on the other hand, means belonging to the sex that can have babies, or produce eggs,7 while the word genital refers to sex organs. fgm is a violent damage caused to the outer sex organs of a group of people that can bear children, or produce eggs.8 the most severe form of fgm is when all external genitalia are removed and the vaginal opening is stitched nearly closed.9 this act is carried out at a very young age, and violates the right to life,10 the right to dignity of human person, the right to health, private and family life.11 female genital mutilation (fgm) involves part or total removal of the external female genitalia or other injury to the female genital organs for non-medical reasons.12 fgm is a practice is mostly in secrecy, uncertainty, and confusion.13 the origin of fgm is fraught with controversies either as an initiation ceremony of young girls into womanhood or to ensure virginity and curb promiscuity, or to protect female modesty and chastity. girls usually undergo the fgm without their consent, depriving them of opportunity to make independent decision about their bodies.14 it is a culture in some communities to carry out obligatory inspections for virginity on the female sex. this practice is discriminatory and manifests high level of sexual politics. the issue for concern is the inference drawn from this practice which is done only to female folk and not to both sexes. also, it can be inferred that only men have the right to enjoy sex and be promiscuous. on the other hand, it implies that females are merely used as sex object and for male’s sexual satisfaction. dirie15 narrated the plight of a girl thus: [m]ama tied a blindfold over my eyes. i felt my flesh was being cut away. i heard the blade sawing back and forth through my skin. the pain between my legs was so intense i wished i would die. who estimates that 140 million women and girls have experienced the procedure.16 it is estimated that in the past five decades, approximately 100-140 million african women have undergone fgm and each year, a further 3 million girls are estimated to be at risk of the practice in africa alone.17 the practice is rooted in gender inequality, cultural identity, ideas about purity, modesty, aesthetics and honour, attempts to control women sexuality by reducing their sexual desires, thereby promoting chastity and fidelity.18 fgm is recognized internationally as a violation of the human rights of women and it violates a person’s rights to health, torture and the right to life when the procedure results in death.19 it has several immediate and long-term health consequences, in respect of difficulties in childbirth while being injurious also to the child.20 fgm may involve cutting out all or part of the clitoris, the labia majora21 and/or minora,22 and stitching the labia together so as to narrow the opening.23 historical background of female genital mutilation fgm is a practice whose origin and significance is shrouded in secrecy, uncertainty, and confusion.24 the origin of fgm is fraught with controversy either as an initiation ceremony of young girls into womanhood or to ensure 6 p longman, dictionary of contemporary (8thedn, west publishing company, 2004) 178. 7‘female genital cutting fact sheet’ online database <http//www.womenshealth.gov/publications/our-publications/factsshee> accessed on 28th august, 2020. 8 cfrn, s. 34. 9 ibid, s. 37. 10 cfrn, s 33; a odoi, ‘female genital mutilation’ in e kwawukume (ed), comprehension gynecology in the tropics (accra graphics, 2005) 2. 11 cfrn, s 37 12 dirie (n1). 13 j mertus, local global change (uniform publishers 1999) 28. 14 b derek, human sexuality in fundamentals of obstetrics and gynaecology (alden press, 1986) 91. 15 dirie (n1). 16world health organization, ‘female genital mutilation’ online database <http://www.who.int /topics/femalegenitalmutilation/en/> accessed on 10th september 2020. 17 ibid. 18m smith and j segal, ‘domestic violence and abuse: signs of abuse and abusive relation’ online database <http://google.com-domesticviolence-fsnic8237..> accessed on 20th may, 2021. 19 ibid. 20 ibid. 21around the opening of the vagina, there are 2 sets of skin folds. the inner set, called the labia minora, are small and hairless. the outer set, the labia majora, are larger, with hair on the outer surface. (labia is latin for lips.) 22 ibid. 23medi lexicon international, ‘medical new study’ online database <http://www.medicalnewstudy.com/articles /24172.php.> accessed 19th september, 2020 24 a odoi, ‘female genital mutalatin’ in e kwawukume (ed), comprehension gynaecology in the tropics (accra graphics 2005) 2. african customary and religious law review 1 (2020) page | 81 virginity and curb promiscuity, or to protect female modesty and chastity.25 it may also have sprang from a hidden patriarchal misdeed targeted to debase womanhood and turn them into a log of wood that has no feelings and no sexual urge just for sexual satisfaction and enjoyment of the male folk. the women’s bodies are cut into pieces just to reduce them into sex object to procreate, nurse babies and perform domestic chores which are never remunerated. the tightening of the vagina in the process of infibulations and the forceful entry of the penis during sexual intercourse is just for the husband’s pleasure. the painful intercourse and delayed labour due to the tight vagina is simply at the detriment of the wife and unborn child with many health hazards. the ritual has been so widespread that it could not have risen from a single origin. classification of female genital mutilation basically, female genital mutilation is classified into types as follows: type 1 – clitoridectomy: partial or total removal of the clitoris. type 2 – excision: removal of the clitoris and the labia minora (the inner vaginal lips). type 3 –infibulations: it is excision or removal of all the external genitalia (clitoris, labia minora and labia majora),26 and the stitching or narrowing of the vaginal opening to allow the flow of menstrual blood and urine; the stitches are removed when the girl is married with very strong surgical scissors.27 type 4 –there is also the miscellaneous and introduction of corrosive substance into the vagina.28 arize-umobi observed another form of fgm as gradual dropping of hot water on the clitoris and the general area of the female vulva, so that the sensitivity of that area is gradually killed or waned.29 health consequences of female genital mutilation fgm causes both short-term and long-term health problems. in most cases, it causes complications in pregnancy. also, it may lead to psychological and emotional stress, and frigidity. the female may withdraw, or exhibiting the tendency of marital disharmony with her husband.30 short term health problems of fgm include bleeding or haemorrhaging, infection from the wound can develop into an abscess (a collection of pus), also the girl can get fever, sepsis (a blood infection), shock, and even die, if the infection is not treated. physically or psychologically traumatic, as well as pains, from routinely cut genital without first being numbed or having anaesthesia, tends to occur the day after, when the girl have to urinate onto the wound.31 on the other hand, the long term complications are not limited to extensive damage of the external reproductive system or the uterus, vaginal, and pelvic infections. it is not also limited to resulting in cysts and neuromas, increased risk of vesico vaginal fistula, complications in pregnancy and child birth, indelible psychological marks, sexual dysfunction and dissatisfaction, difficulties in menstruation and the cramps. it goes beyond effects on the victim to the society both the immediate and global society. 3. analysis of rationale proffered for the practice of fgm there are many reasons fgm is practiced, including social, economic and political reasons. those who support fgm believe that it will empower their daughters, ensure the girls get married, and protect the family’s good name. in some group fgm is performed to show a girl’s growth into womanhood and, in some community, marks the girl’s sexual debut. it is also performed to keep a woman’s virginity by limiting her sexual behaviour. fgm is believed by those who practice it to limit a woman’s sexual desire. in some group women who are not cut are viewed as dirty and are treated badly. while fgm predates both christianity and islam, religion is also used to promote the practice. some communities believe that in order to be good muslims, parents must have their daughters cut. fgm is part of a community’s tradition. most parents who support fgm believe they are protecting their daughter’s future marriage prospects, and not hurting her. it is seen by parents as part of a girl’s upbringing. mothers chose to subject their daughters to the practice to protect them from being ostracized, beaten, shunned, or disgraced. fgm is due to several factors, and often a combination of them, including those of a religious, social and cultural nature. there are also many superstitions about fgm, such as: 25 ibid. 26 around the opening of the vagina, there are 2 sets of skin folds. the inner set, called the labia minora, are small and hairless. the outer set, the labia majora, are larger, with hair on the outer surface. (labia is latin for lips.) 27 l hanny, ‘the sexual experience and marital adjustment of genitally circumcised and infibulated females’ [1989] (26) (3) journal of 800 research, 375. 28 t c okeke et al, ‘female genital mutilation’ online database <http://www.ncb.n/m.nih.gov/pinc /articles/pmc3503121/> accessed on 10th september, 2020. 29 c arinze-umobi, domestic violence against women in nigeria: a legal anatomy (folmech publishers, 2011) 72; also see: r heitman, ‘female genital mutilation’ online database <http://wolvesdreams.tripod.com/fgm.html> accessed on 28th august, 2021. 30c ezobi, ‘breaking the culture of female circumcision’ online database <www.thidaylive.com/articles/breaking-thc...2015003444> accessed on 14th november, 2020. 31 m thiel, introducing queer theory in international relations (miami & research associate, 2018) 88 – 89. http://www.forwarduk.org.uk/key-issues/fistula/definitions iloka: effects of female genital mutilation in nigeria: any legal remedies? page | 82 i. in most fgm societies, one important belief is that this procedure will reduce a woman’s desire for sex and in so doing will reduce the chance of sex outside the marriage. this is vital to this society as her honour for the family is dependent on her not to be opened up prior to marriage. ii. some view the clitoris and the labia as male parts on a female body, thus removal of these parts enhances the femininity of the girl. iii. it is also believed that unless a female has undergone this procedure she is unclean and will not be allowed to handle food or water. iv. some groups believe that if the clitoris touches a man’s penis the man will die. as well as the belief that if a baby’s head touches the clitoris that the baby will die or the breast milk will be poisonous. v. the belief that an unmutilated cannot conceive, therefore the female should be mutilated in order to become fertile. vi. bad genital odour can only be eliminated by removing the clitoris and labia minoria. vii. fgm prevents vaginal cancer. viii. an unmodified clitoris can lead to masturbation or lesbianism. ix. prevents nervousness from developing in girls and women. x. prevents the face from turning yellow. xi. makes a woman’s face more beautiful. xii. older men may not be able to match their wives sex drive. xiii. intact clitoris will generate sexual arousal and in women if repressed can cause nervousness. xiv. the clitoris will continue to grow as a girl gets older and so it must be removed. xv. the external genitalia are unclean and can actually cause the death of an infant during delivery.32 xvi. fgm is often considered a necessary part of raising a girl properly, and a way to prepare her for adulthood and marriage. xvii. fgm is often motivated by beliefs about what is considered proper sexual behaviour, linking procedures to premarital virginity and marital fidelity. fgm is in many communities believed to reduce a woman's libido and therefore believed to help her resist illicit sexual acts. when a vaginal opening is covered or narrowed (type 3 above), the fear of the pain of opening it, and the fear that this will be found out, is expected to further discourage illicit sexual intercourse among women with this type of fgm. xviii. fgm is associated with cultural ideals of femininity and modesty, which include the notion that girls are clean and beautiful after removal of body parts that are considered male or unclean.33 xix. the clitoris is a cap of prostitution which vagina wears from heaven, if we do not clip the clitoris young, it is going to be asking for great sacrifices from the penis when it grows up; xx. the fortune gathered by penis is taken up by the vagina; xxi. an uncircumcised woman is not to be respected; xxii. and as the penis grows, so does the clitoris.34 in countries where muslims practices fgm, they can justify it in the words of the prophet mohammed, in these two controversial sayings that are found in the sunnah (words and actions of mohammed). a discussion was recorded between mohammed and um habibah or (um alyyah) a woman performed infibulations on slaves. she said that she will continue the procedure unless it is forbidden and you order me to stop doing it. he replied according to one translation. yes it is allowed, come closer so that i can teach you: if you cut, do not overdo it, because it brings more radiant to the face and it is more pleasant for the husband. mohammed is recorded as speaking of the sunna circumcision to ansar’s wives saying ‘cutting slightly without exaggeration because it is more pleasant for your husbands’. women’s bodies are cut into pieces just for men’s sexual enjoyment and to reduce or eliminate a woman’s pleasure during the act. this is man’s inhumanity to man and it is the greatest highest sexual politics ever meted to women folk. the above passages are regarded to have little credibility or authenticity with the muslim religion and is contradiction in the qur’an: god apparently created the clitoris for the sole purpose of generating pleasure. it has no other purpose. there no instruction in the qurán or in the writings of prophet mohammed which require that the clitoris be surgically modified. thus god must approve of its presence. and also it should not be removed or reduced in size or function. the qurán promotes the concept of a wife being given pleasure by her husband during sexual intercourse. mutilated genitalia reduce or eliminate a woman’s pleasure during the act.35 other reasons for the practice include various myths citing the clitoris as dangerous, able to poison a woman's breast milk if her baby touches it during birth, cause excess cranial fluid in babies, and harm a man if his penis touches it. aesthetically, female genitalia are regarded by communities that practice fgm as dirty and ugly; they 32r heitman, ‘female genital mutilation’ online database <http://wolvesdreams.tripod.com/fgm.html> accessed on 28th august, 2021. 33 world health organization (n16). 34 iac, female genital mutilation in nigeria (university press, 2000) 10. 35 heitman (n32). african customary and religious law review 1 (2020) page | 83 prefer women's genitalia to be flat, rigid and dry.36 the procedure and its rituals offer its practitioners a way to identify with their local culture, thereby promoting social cohesion. type iii fgm also guarantees virginity and encourages chastity and fidelity, because of the pain associated with sex and the difficulty of undoing an infibulations without being discovered. these proverbs demonstrate the deeply ingrained perceptions about clitoris and its threat to male dominance. it perceived as a rival to penis, and the only way which the rivalry can be checked, so it seems in a patriarchal society like nigeria, is to cut it off. f.g.m is performed in order to reduce libido among women37. it is important at this point to make a clear distinction between male circumcision and female genital mutilation. while circumcision in males does not result in any impairment of sexual function, f.g.m is carefully designed and aimed at physical removal of the features, which are essential to sexual function and pleasure. male circumcision beautifies the organ, thus improving the aesthetic value, making it more pleasant to behold, f.g.m terminates life and sensitivity out of the entire organ, reduces the victim to a mere log of wood and in doing this, exterminates the sexual libido of a woman. this practice violates a woman’s right to life, bodily integrity, health and sexuality. it is also in correcting the erroneous impression about the f.g.m and male circumcision, the initial discourse about the anatomical composition in males, females as well as sexual responses help to clear the issues and medically establish the need to totally eradicate f.g.m.38 4. justification for need to eradicate female genital mutilation medical jurisprudence has established that circumcision, which may be the oldest form of surgery, is a practice medically unwarranted. this is so because it has no significant physiological benefits and is performed without anesthesia, leaving the victims with wounds in which urinary salts, burns, carry a significant risk of complication including death, or severe deformity, bleeding, infections, urinary retention, and tetanus infections regarded as short term consequences, while keloid formations, pelvic inflammation, h.i.v infections and aids , clitoris neuronal, vesico-vaginal fistulae, recto-vaginal fistulae problem such as neurosis, as long term effects39. derek40 had maintained that sexually responses in women and men are arbitrarily divided into four phases (a) excitement, (b) plateau, (c) organism (d) resolution. the stimuli for the excitement phases tend to form a pattern to each peculiar individual. visual stimuli are said to be more potent for men than for women. women are said to be stimulated more by psychological and tactile stimuli, as the excitement stage tend to be longer in women than in men, before the plateau phrase is reached. during the excitement, the breast responds by erection of nipples, tumescence of the areolae and increase in the mammary size due to congestion of the capillary plexus. simultaneously¸ the clitoris increases in width and the labia minora becomes softer and thicker from passive venous congestion. the degree of clitoral and labia responds vary from woman to woman, according to derek. the excitement phases, the pelvic tissue including the vaginal sub-mucosa become congested. the pleasure of the excitement phases is intensified in both sexes if the couple pleasures each other sexually. this is called foreplay, but more professionally called mutual pleasuring, which involves cuddling and body contact, made up of stroking and body exploration with fingers, tongue, lips and thighs. this involves specific stimulations of each other’s erotic zones by fingers, lips or tongue; in a woman, her breast and clitoral area, but in a man, his penis, scrotum and anal area. mutual pleasure is a learning experience and has no set formula. each partner’s needs and desires are unique, and each has to discover what turns the others partner to the greatest extent. the woman reaches the plateau stage when she is desirous of having the man’s penis contained in her moist vagina. this penile movement stimulates the clitoral area, as well as the vagina, and brings the woman to orgasmic phase. however it may be that the male orgasm occurs too rapidly, and the woman fails to achieve orgasm. in this event, unless an orgasm is induced by the man stimulating her clitoral area, her sexual tension may not be relieved as posited by derek41. an orgasm is triggered off by clitoral stimulatory impulses being relayed to the lumber spine where a reflex mechanism occurs. the reflex is under the control of psychic influences which can be facilitating or inhibitory, the later leading to a failure in orgasm42. derek went on to posit that many women experience orgasm only after digital stimulation of the clitoral area, or from cunnilingus. in women, general sexual dysfunction or lowered drive differs substantially from that of her partner. in a woman, this may be more marked because of the woman’s genital morphology. a woman with a low sexual drive can accommodate her man’s high sexual drive, by accepting, but not obtaining the full pleasure of sexual intercourse. but in a reverse situation, she may become increasingly frustrated, as an erect penis is necessary for vaginal intercourse, and a willing interested partner is needed for clitoral or other stimulation. all forms of sexual inadequacies can lead to disharmony, to depression, or to variety of 36centers for disease control and prevention cdc, ‘sexual violence’ online database <http://www.cdc.gov/violenceprevention/sexual violence/index.html> accessed on 4th october, 2021. 37ezobi, c. ‘breaking the culture of female circumcision’ online database <www.thidaylive. com/articles/ breaking-thc..2015003444> accessed on 14th november, 2020. 38 c arinze-umobi, domestic violence against women in nigeria: a legal anatomy (folmech publishers, 2011) 74. 39 j mertus, local action global change (uniform, 1999) 28. 40 b derek, human sexuality in fundamentals of obstetrics and gynaecology (alden press, 1986) 91. 41 ibid. 42 ibid. iloka: effects of female genital mutilation in nigeria: any legal remedies? page | 84 psychosomatic disorders and in this case a woman may fake sexual enjoyment including orgasm to please her partner. the clitoral is the homologue of the penis and is a small structure almost hidden by the fore parts of the labia major. the clitoris consists of erective tissues richly supplied with nerves, which make it the most erotically sensitive part of the vulva. also the female perineum is richly endowed with nerves and vessels, carrying blood supply to that part of the body.43 it is a gainsaying that a disruption of the structure of this female perineum in any form would cause inadequate supply of blood to this part of the body, thus causing numbness, and lack of feeling in the area, as would happen to peripheral areas when blood supply is disrupted. simultaneously, the penis is also not without rich blood supply through the numerous blood vessels, nerves as endowed by nature.44 the natural essences of this are to make it as sensitive as the clitoris in a woman. a cut of the clitoris means exactly the same and in equal proportion to a cut of penis. the network of blood vessels and nerves are self-explanatory, as supported by the latin maxim res ipsa loquitur and this has led to a very serious warning by grant that all the tissues of the vulva are extremely vascular, so that even a minor operation in that area should not be attempted except in well-equipped surroundings.45 the need to go into the different levels of sexual response both in males and females did not arise as a result of unnecessary curiosity or adventure into concupiscence. this has helped to expose the need for a clear and perfect understanding of the arrangement of the entire sexual system by god almighty, in order that utmost sexual pleasure and planned maternal arrangements are derived by both males and females. this is why the little medical exposure about the organs, their functions, and placements comes in timorously, to helps us understand the acute danger to which females are exposed in fgm, and there appears to be little or no appreciation of the medical dangers involved., both immediate and remote, afore mentioned, the medical basis for eradication of f.g.m becomes absolutely justified and desired.46 having understood the blood vessels in their complicated arrangement designed for perfection, and bearing in mind the warning of grant j. in relation to even a very minor surgery in that area, what would therefore agitate the minds of right thinking person is why some people would want to disrupt what nature had perfectly arranged for optimum utility; why most women must not be allowed by society to live and enjoy their full-blossomed sex life, and allowed to arrange their maternity to suit their desire positions in their lives, and not mutilated by society on ordeal to keep them under check.47 for a while, this good act of protecting the woman by societal patriarchal values and norms, for patriarchy and effects are ingrained, there is no corresponding ‘good act’ by women in order to check the males. the societies rather allow men these unimagined and unlimited degrees of sexual jamboree, hanging their justification on the mundane maxim that has no basis that african men are polygamous and gregarious by nature. this act of protecting the women of course is nothing but a mere patriarchy benevolence, which has nothing at its base except to continuously put women in a position of perpetual servitude/slavery, and objects to be used and dropped at will. f.g.m in any form is the greatest injustice and cruelty meted out to women by the society and the damage is irreparable.48 5. the way forward towards eradication of fgm sections 33, and 34 (1)49 of the constitution of the federal republic of nigeria 1999 fall directly within chapter four clearly headed fundamental rights, in which certain rights are guaranteed to all citizens of nigeria is against fgm and it establishes the legal authority upon which this argument of eradication of female genital mutilation, is predicted, and not just a mere wild goose chase. thus section 3350 stipulates that: every person has a right to life, and no one shall be deprived intentionally of his save in the execution of the sentences of a court in respect of a criminal offence of which he has been found guilty in nigeria. section 33(2)51 states the situation in which a person shall not be regarded as having been deprived of his life. it states as follows: a person shall not be regarded as having been deprived of his life in contravention of this section, if he dies as a result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably necessary (a) for the defense of any person from unlawful violence or for the defense of property; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or (c) for the purpose of suppressing a riot, insurrection or mutiny. 43 r mead, ‘sexual politics and the feminist work that remains undone’ online database <www. marxist.org.subjectwomanauthors-millet-katesexualpoliticsnewyorker.com/books/page-turner> accessed on 27th may, 2021. 44 ibid. 45t okeke, et al, ‘female genital mutilation’ online database <http://www.ncb.n/m.nih.gov /pinc /articles/pmc3503121/> accessed on 10th september, 2020. 46 g buga, ‘sexual behaviour, contraceptive practice and reproductive health among school adolescents in rural transkei, [2011] (86) south african medical journal, 523. 47 ibid. 48 c arinze-umobi (n38) 65. 49 constitution of federal republic of nigeria, 1999, as amended. 50 ibid. 51 ibid. african customary and religious law review 1 (2020) page | 85 obviously these exceptions did not include the offences of being a woman, and consequently subject to f.g.m. also section 34 (1) (a) 52 holds that: every individual is entitled to respect for the dignity of his person and accordingly, (a) no person shall be subjected to torture or to inhuman or degrading treatment. again, african chapter on human and peoples rights which has become part of our domestic law guarantees and states ‘human beings are inviolable. every human being shall be entitled to the respect for his life and the integrity of his person. no one may be arbitrarily deprived of this right’.53 it also states every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. all forms of exploitation degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.54 furthermore the convention against torture and other cruel, inhuman or degrading treatment or punishment states the term torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person.55 it also states that ‘each states party shall take effective, legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction’.56 it also mandates: each state party shall ensure that all acts of torture are offences under its criminal law. the same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. each state party shall make these offences punishable by appropriate penalties which take into account their grave nature.57 moreover, the child’s rights act provides that: every child is entitled to respect for the dignity of his person, and accordingly no child shall be (a) subjected to physical, mental or emotional injury, abuse, neglect or maltreatment, including sexual abuse; (b) subjected to torture, inhuman or degrading treatment or punishment.58 it goes further to provide that: every child is entitled to enjoy the best attainable state of physical, mental and spiritual health. every government, parent, guardian, institution, service, organization or body responsible for the care of the child shall endeavour to provide for the child the best attainable state of health. every government in nigeria should endeavour to reduce infant and child mortality rate.59 the convention on the rights of the child states that states parties should recognize that every child has the inherent right to life.60 it further states that no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.61 in addition to the statutory provisions against neglect and abuse of human dignity, is the judgement of justice niki tobi in uzokwu v ezeonu62 where he stated that the word ‘torture’ etymologically means to put a person to some forms of pain which could be extreme… it also means to put him in a form of anguish, or excessive pain… he also defined inhuman treatment to mean ‘a barbarous, uncouth, and cruel treatment, a treatment which has no human feelings on the part of the person inflecting the barbarity or cruelty.’ furthermore, the provision of the criminal code63 strengthens the legal position that a person is protected against assault and violence to his/her person, and provides thus: a person who strikes, touches, or moves, or otherwise applies any kind to the person of other, either directly or indirectly, without his consent, or with his consent, if the consent is obtained by fraud or who by any bodily act or gestures, attempts, or threatens to apply 52 ibid. 53african charter on human and peoples’ rights, 1981. art. 4 54 ibid art. 5 55 convention against torture and other cruel, inhuman or degrading treatment or punishment, 1984, art. 56 ibid, art 2. 57ibid, art 4. 58 child rights act, 2003. s. 11. 59ibid, s 13. 60 convention on the rights of the child, 1989, art. 6. 61 ibid, art 37. 62 [1991] 6 nwlr (pt. 200) 708. 63 criminal code act, c 38 i lfn 2004 s.252. iloka: effects of female genital mutilation in nigeria: any legal remedies? page | 86 force of any kind to the person of another without his consent, in such circumstances that the person making the attempt, a threat has actually or apparently a present ability to effect his purposed, is said to assault that other person and the act is called an assault. the term ‘applies force ‘include the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever, if applied in such a degree as to cause injury or personal discomfort.64 these provisions elegantly drawn up in our statute book, strong judicial pronouncements in their support made, but the problems is the issue of applicability, and even the knowledge about the existence of these provisions, so that the benefits will avail the people, or the fact that these provisions are mere ornamental in nature that they simply adorn our statute books without application becomes the problems. we must note that these rights as guaranteed are inalienable and universal, and these rights are rights, which a person cannot be deprived of without great affronts to justice. these rights can be said to inure in a person without any further assurances. justice kayode eso in ransom kuti v a.g federation 65 also described human rights thus: it is a right which stands above the ordinary laws of the land, and which in fact is antecedent to political society itself. it is a primary condition to a civilized existent, and what has been done by our constitution since independence is … to have these rights enshrined in the constitutions, so that they could be immutable to the extent of non-immutability of constitution itself. justices chukwudifu oputa, in ransom kuti v a. g. federation 66 distinguished fundamental rights from human rights thus: not every civil or legal right is a fundamental right. the idea and concept of fundamental rights both derive from the premise of the inalienable rights of man, life, liberty and pursuit of happiness. emergent nations with written constitutions have enshrined in such constitutions, some of these basic human rights or fundamental right. each right that is thus considered fundamental is clearly spelt out.67 6. conclusion and recommendations the researcher is of the view that fgm should be stopped with immediate effect because it is a wicked and barbarous act which is, against the tenets of the constitution. the perpetrators must be duly punished. the people’s human rights must be respected. everybody has a right to life and every individual is entitled to respect to dignity of his or her person. specific cases on fgm are scanty in courts, if at all there is any. sequel to this, there is likely no judicial precedent on fgm. therefore, civil societies at different levels should provocatively embark on elaborate sensitization project to stir-up the consciousness of women, whose right to self-determination, right to life, right to dignity of human person, etc. have been infringed upon as a result of genital mutilation, to challenge such debase act in court . also, human right lawyers should take up pro bono litigation for women who have been identified as victims of genital mutilation. prosecution departments should not stand back in instituting criminal actions and charges against perpetrators of fgm, and the judiciary as well should ensure that justice is practically done. the fundamental human rights provisions explicitly stated in the constitution and it should be remembered that nobody and the law is no respecter of any person. this debase act of cutting the female’s genitals must be trampled upon and relegated to the historic abyss. unlike male circumcision which is specifically for hygienic health, the conception that fgm is the preservation of culture is rather barbaric, inhuman, and repugnant to equity and good conscience. 64 ibid. 65 [1985] 2 nwlr (pt. 6) 230. 66 ibid. 67 ransom kuti v a. g. federation (supra.) akutah & agbu: legal framework for curbing transnational organised crime in nigeria 140 | p a g e legal framework for curbing transnational organised crime in nigeria* abstract transnational organised crime has significantly impeded the growth and development of many countries striving for globalisation. thus, international cooperation is a crucial tool in combating transnational organized crime. this cooperation involved due process and forms including extradition and mutual legal assistance to effectively address transnational criminal activities. this article adopts doctrinal method in interrogating the legal and institutional frameworks for international cooperation on the fight against transnational organized crime in nigeria. it examines the challenges posed by transitional organised crimes, identified forms of transnational organized crimes across nations and explored strategies to assist states in capacity building towards combating. it found that the subsisting legal frameworks for transnational organised crime in nigeria is inadequate and has therefore hindered cross-border law enforcement efforts. it therefore recommends overhauling of the legal and regulatory frameworks for extradition, mutual legal assistance, and prisoner transfers, increasing awareness and effective utilization of the concept of international cooperation in combating transnational organized crime in nigeria. furthermore, nigeria should formulate a clear policy to enhance existing domestic legislation, treaties, and policy frameworks related to joint investigations, transfer of criminal proceedings, letters rogatory, and the recognition and enforcement of foreign criminal judgments. keywords: extradition, transnational organised crimes, nigeria, international, cooperation 1. introduction the legal framework for fighting transnational organized crime (toc) involves a combination of international, regional, and national laws, as well as cooperative efforts between countries. some of the key components are international framework, which includes; firstly, united nations convention against transnational organized crime (untoc) (2000): also known as the palermo convention, this treaty sets out a global framework for combating toc. secondly, united nations office on drugs and crime (untoc) protocols which has three protocols. there are regional frameworks that are required in fighting transnational organized crime includes; european union (eu) framework decision on organized crime (2008), organization of american states (oas) convention against transnational organized crime (2005), association of southeast asian nations (asean) convention on counter-terrorism (2007) and african union convention on preventing and combating corruption (2003). 2. definition of terms for the sake of clarity in comprehension, certain terms used in this paper needs definition. these terms include. crime defining ‘crime’ is a complex endeavor, as it encompasses a broad spectrum of actions and societal implications. at its core, a crime is an act deemed punishable under the law. to understand what constitutes a crime, one must first comprehend the law itself. a crime may be viewed as an act of defiance against a law that either prohibits or mandates it1. however, the concept of crime extends beyond mere legal disobedience. various schools of thought and authors have offered differing interpretations of crime, yet no singular definition has been universally accepted. crime is recognized as a legal transgression that incurs punishment by the state. sir williams2 initially described crime as an act committed or omitted in violation of a public law. he later refined his definition to describe crime as an infringement of the public rights and duties owed to the community at large. in england, a crime is a legal wrong that leads to criminal proceedings and potential punishment. it represents human behavior that the state aims to deter through the threat of penal consequences, leading to criminal proceedings and sanctions.3 the concept of crime is also perceived as a societal norm, a natural outcome of collective living and social evolution. for example, cross and jones view crime as a legal wrong punished by the state4, while russell sees it as an act or omission that breaches a duty punishable by indictment in the public interest. gledhill5 defines crime as conduct that the state seeks to prevent through punishment and specialized legal proceedings. durkheim6 posits that the collective conscience of a society determines what is considered a crime, suggesting that moral consensus shapes legal boundaries. some perspectives argue that legal definitions of crime are too narrow and *by pius ukeyima akutah, llb, bl, llm, phd (in view), federal ministry of justice abuja. tel: +234 8098112789; and *david andrew agbu, llb, bl, llm, phd, associate professor, faculty of law, nasarawa state university, keffi. email: davidmaisongo2@gmail.com, tel: +234 8033917406 1 r.c. nigam, law of crimes in india. 2 s. w. blackstone, commentaries on the laws of england. 3 m. jefferson, criminal law, pearson, education limited essex (2007) 8th ed. pp. 12-13. 4 r. ross and r. a. jones, an introduction to criminal law, butterworths, london (1972) p. 35 11th edition p. 1. 5 a. glendhill, the penal code of northern nigeria and the sudan london (1963). 6 e. durkheim, rules of sociological method, the free press, lllinois (1958) pp. 65-23. mailto:davidmaisongo2@gmail.com african customary and religious law review (acarelar) 5 (2024) 141 | p a g e propose that criminology should encompass all antisocial behavior detrimental to society.7 adeyemi8 emphasizes that crime adversely affects societal progress, eroding spiritual and material well-being, compromising human dignity, and fostering a climate of fear and violence that diminishes the quality of life. cross-border crimes borders serve as the delineating lines of a nation’s sovereignty and security, acting as filters through which individuals, commodities, capital, and information are assessed for legitimacy. they are emblematic of a nation’s historical and ongoing relations with its neighbors.9 in the realm of international law, misconduct that transcends national interests is categorized into two primary types: international crimes and transnational crimes. international crimes are those actions deemed illicit by international criminal law, as defined by the 1994 draft code, multilateral treaties, or established customary practices among nations. transnational, or cross-border crimes, are often characterized as offenses that infringe upon the laws of multiple countries10. however, relying solely on legal definitions for the study of social phenomena can be restrictive, especially within a global community composed of vastly diverse legal systems. it is more pragmatic to conceptualize cross-border crime in an abstract manner, while still acknowledging legal norms. cross-border crime can be defined as conduct that endangers legally protected interests across multiple national jurisdictions and is criminalized in at least one of the concerned states. the severity, sophistication, and organization of such crimes can vary. contemporary concerns about global crimes have been predominantly driven by illegal drug trafficking, terrorism, illicit arms or technology trade, human smuggling, fraud, corruption, and money laundering. the spectrum of serious transnational crime also encompasses tax evasion, capital flight, art and cultural property theft, smuggling of legal commodities, environmental offenses, and the exploitation of child labor. computer crimes, often dubbed ‘the crimes of the future,’ largely represent a novel method of committing traditional offenses, with the computer serving as the instrument of crime. crime, in essence, is an intentional act contravening criminal law, committed without justification or excuse, and subject to penal sanctions by the state as either a felony or misdemeanor. the juristic perspective offers a precise and administratively viable definition, although sociologists continue to refine methodologies for the accurate identification of offenders. crime is thus described as a breach of legal norms warranting penal consequences, with the perpetrator being the individual responsible for such a breach. historical legal scholars, such as blackstone, have defined crime as a violation of the collective rights and duties owed to the community, asserting that any act or omission that contravenes public law constitutes a crime. this emphasis on public wrongs highlights the notion that crimes are breaches against the community’s collective rights and duties. transnational crimes transnational crimes are offenses that transcend national boundaries or occur within a single nation yet violate the core principles of the global community. these crimes are recognized and addressed by both law enforcement agencies and academic scholars. the prevention of transnational crimes is facilitated by three primary methods: electronic surveillance, undercover operations, and the strategic use of information. these methods have proven to be crucial in aiding investigative agencies in their fight against organized and transnational criminal activities.11the societal impact of transnational organized crime is profound, posing threats to peace and human security. such criminal activities lead to violations of human rights and impede the economic, social, cultural, political, and civil progress of societies worldwide. organized crime groups may resort to violence and corruption to fulfill their objectives, often manipulating legal entities like businesses or corporations to perpetrate crimes or to launder money obtained from illegal activities. the consequences of these crimes are multifaceted, resulting in physical and economic damage, as well as the erosion of legitimate governmental and commercial functions. the human toll is significant, with innumerable lives lost annually due to organized crime. this includes the health issues and violence linked to drugs, fatalities caused by firearms, and the ruthless practices of human traffickers and migrant smugglers. these criminal acts generally diminish safety, sow discord and confusion, impede community cooperation and trust, and inflict substantial economic losses on individuals and nations alike12. they also compromise the fiscal capabilities of states, hinder economic growth through tax evasion, and promote illicit financial transactions. furthermore, transnational organized crime increasingly threatens both national and international security, with severe repercussions for public safety, health, democratic institutions, and the stability of economies around the world. 7 t. sellin, culture, conflict and crime, new york social science research council bulletin 41 (1938). pp.19. 8 a. a. adeyemi, ‘economic crime in a developing society’. a paper presented at the conference of attorney generals, 11th – 13th october, 1998), pg.1. 9 o. ogunsakin. border control challenges and their attendant effects on national security in abolutin, a, issues and challenges: nigeria’s national security, ibadan: john archers, p.37, 2011. 10 a. bossard, transnational crime and criminal law (1990-06-03) paperback. 11 <https://unafei.or.jppdf//howcanwepreventedtransactionalcrimes> rs/no58 accessed on 24/09/2024. 12 <https://www.unodc-org-news.howdoesorganizedcrimeaffectsociety> accessed on 24/09/2024. https://unafei.or.jppdf/howcanwepreventedtransactionalcrimes akutah & agbu: legal framework for curbing transnational organised crime in nigeria 142 | p a g e transnational organised crime transnational organized crime (toc) refers to crimes that are planned and executed by coordinated groups operating across national borders. these groups engage in a variety of illegal activities, including drug and arms trafficking, human trafficking, illegal waste disposal, theft, and wildlife poaching. toc networks utilize systematic violence and corruption to achieve their objectives, posing a significant threat to public safety, health, and the stability of democratic institutions and economies worldwide.13 as toc networks grow and diversify, they increasingly converge with other threats, leading to destabilizing effects. the united states has developed strategies to counteract toc networks that threaten american interests and global security. particularly vulnerable to toc are developing countries with weak legal systems, where governance can be compromised, leading to further erosion of law and order. the infiltration of toc into state mechanisms, including government, intelligence, and business sectors, poses a severe risk to economic development and the integrity of democratic institutions. in some regions, toc groups have become intertwined with political processes through bribery, economic coercion, and even participation in elections. they establish shadow economies, compromise financial and security sectors, and sometimes provide alternative governance and services, challenging the stability of legitimate markets and alliances. the penetration of toc into governmental structures intensifies corruption, weakens governance, and undermines the rule of law, judicial systems, the free press, and the development of democratic institutions. the situation in somalia, where criminal control and piracy have generated substantial illicit funds, illustrates how toc can destabilize governments. in summary, toc is a multifaceted threat that undermines state authority and economic stability, necessitating a coordinated and robust international response to safeguard global security and promote lawful governance. extradition extradition refers to the formal process where an individual is given up by his or her own will or by force to the state, which seeks to prosecute him or her or is handed over to the state through legal procedures after being convicted of a criminal activity. extradition entails the surrender of an individual, at the behest of another legal jurisdiction, for the purposes of facing trial or punishment. for extradition to proceed, it is imperative that the individual is officially wanted for trial, as evidenced by a judicial warrant demanding their court appearance to respond to criminal charges. this is distinct from being sought merely for questioning, such as in a witness capacity. in the case of attorney-general of the federation v lawal olaniyi babafem, also known as ‘abdullahi’ and ‘ayatollah mustapher (babafemi)’,14 the respondent was implicated in conspiring to support a foreign terrorist organisation in the united states. the federal high court deemed the existing indictment and the arrest warrant issued by a u.s. magistrate judge sufficient to classify the respondent as subject to extradition. even if a convicted individual is appealing their sentence, this does not negate their status as extraditable. in attorneygeneral of the federation v uche okafor prince,15 the respondent, convicted by the district court of helsinki and upheld by the helsinki court of appeal, fled to nigeria without serving their sentence. despite the respondent’s claim of an ongoing appeal, the federal high court ordered their extradition to finland, focusing on the sentence awaiting completion. the courts have consistently emphasized that extradition proceedings are not a trial of the respondent but rather a procedural expression of international cooperation. this is grounded in the principle that it is in the collective interest of states to ensure that justice is not evaded. as lord russell of killowen, c.j. articulated in r v. arton (no.1) in 1896,16 the foundation of extradition lies in the mutual interest of civilized societies to see crimes duly punished and in the reciprocal assistance among nations to bring offenders to justice. it is crucial to distinguish extradition from rendition, the latter being a broader term encompassing all methods of returning individuals, including extradition, from one state to another. unlawful methods such as abduction or ‘extraordinary rendition’—government-sanctioned apprehension and transfer of individuals without due process—contrast sharply with formal extradition. extraordinary rendition strips individuals of their right to legally contest their transfer, underscoring the importance of adhering to established legal extradition protocols. extradition is a critical mechanism in upholding the principles of international law, particularly in the context of transnational crime. however, instances of unlawful rendition, such as the 1984 ‘dikko affair’, starkly violate these principles. in this case, the nigerian government’s attempt to forcibly repatriate umaru dikko from the uk, bypassing legal extradition processes, resulted in severe diplomatic repercussions and highlighted the importance of adhering to international norms. the legal framework governing extradition is comprehensive, with foundational documents such as the 1999 constitution of nigeria, the extradition act of 1966, its subsequent modifications, and the federal high court rules on extradition proceedings. these are bolstered by the evidence act and various criminal codes that collectively shape the extradition landscape. 13 ibid. 14attorney-general of the federation v lawal olaniyi babafemi aka ‘abdullahi’, ‘ayatollah mustapher (babafemi)’ suit no: fhc/abj/cr/132/2013. 15 attorney-general of the federation v uche okafor prince suit no: fhc/abj/cr/28/2013. 16 r v. arton (no. 1) [1896] 1 q.b 108. african customary and religious law review (acarelar) 5 (2024) 143 | p a g e 3. legal framework on curbing transnational organised crime this section of the paper examines laws that could be deployed to curb the menace of transnational crime in nigeria. constitution of the federal republic of nigeria 1999 (as amended) the nigerian state is a constitutional democracy based on a three-tier structure of governance made up of the federal, state and local governments. the constitution of the federal republic of nigeria 1999 is the foundation to the existence of all other laws in the nigerian legal system. the 1999 constitution expressly stipulates that it ‘… is supreme and its provisions shall have binding force on the authorities and persons throughout the federal republic of nigeria.’17 the 1999 constitution is, therefore, the tool by which the validity or legality of all existing laws, within the country, are determined. it is in this sense that the 1999 constitution stipulates that if any other law is inconsistent with its provisions, ‘that other law shall, to the extent of the inconsistency, be void.’18 by virtue of the 1999 constitution, the power to make laws and procedures regarding extradition is vested exclusively in the federal government of nigeria.19 the 1999 constitution of nigeria does not explicitly provide specific provisions for the fight against transnational organized crime. however, it does contain some relevant sections that can be applied to combating organized crime generally. section 4 provides for the separation of powers, this section establishes the national assembly's authority to legislate on matters related to crime and criminal justice, including organized crime. also, section 14 provides for the protection of public safety and public order, this section empowers the government to ensure public safety and order, which can be applied to combating organized crime. and section 15(5) provides for the responsibility of the state, this section obligates the state to abolish all forms of corruption and abuse of power. while the constitution doesn't explicitly address transnational organized crime, nigeria has enacted specific laws and established institutions to combat organized crime, including. nigeria is also a signatory to international treaties and conventions aimed at combating transnational organized crime, such as the united nations convention against transnational organized crime (untoc) and its protocols. under the nigerian constitution, the attorney-general of the federation holds significant powers in extradition cases. united nations convention against transnational organized crime (untoc) 2000 the legal framework for fighting transnational organized crime (toc) involves a combination of international, regional and nation laws, as well as cooperative efforts between countries. one of such laws is; united nations convention against transnational organized crime also known as the palermo convention, this treaty sets out a global framework for combatting toc. also, there are three protocols which addresses specific issues i.e., protocol to prevent, suppress and punish trafficking in persons, especially women and children. and also, protocol against the smuggling of migrants by land, sea and air. and protocol against the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition. therefore, united nations convention against transnational organized crime, often referred to as the organized crime convention, mandates the criminalization of four specific conducts when committed intentionally: participation in an organized criminal group, laundering of proceeds of crime, corruption, and obstruction of justice. these are outlined in articles 5, 6, 8, and 23 of the convention respectively. the convention allows for flexibility in how states establish these offenses within their jurisdictions, emphasizing that the specifics of criminalization are subject to domestic law as per article 11, paragraph 6. despite its focus on transnational crime, the convention obligates state parties to criminalize the specified conducts regardless of whether a transnational element or an organized criminal group is involved, as stated in article 34, paragraph 2. this ensures that domestic crimes of similar nature are not exempt from prosecution.20 the convention does not prescribe specific sanctions for these crimes, leaving the determination of penalties to the discretion of each state party, which must align with the gravity of the offense as per article 11, paragraph 1. the severity of sanctions often influences international cooperation, such as extradition and mutual legal assistance, with many states setting a minimum penalty threshold for such cooperation. transnational organized crimes encompass a wide array of illicit activities conducted across national borders for economic gain. these include, but are not limited to, terrorism, banditry, corruption, illegal mining, human trafficking, arms trafficking, drug trafficking, cybercrime, and other forms of economic and financial crimes. organized criminal groups often employ sophisticated technological tools and complex methods, such as information networks and financial systems, to facilitate their operations. activities like smuggling contraband, human trafficking, and illegal oil bunkering using speedboats and vessels are characteristic of transnational organized crime. this section aims to provide an academic analysis of the international legal frameworks designed to combat transnational organized crime, highlighting the pivotal role of the organized crime convention in establishing a cohesive approach to criminalization and international cooperation. the united nations convention against transnational organized crime (untoc), along with its supplementary protocols, obligates states parties to harmonize their domestic legislation with the provisions of the convention.21 article 34, paragraph 1, specifically enjoins each state party to adopt the necessary legislative and administrative measures, in 17 section 1(1) constitution of the federal republic of nigeria 1999. 18 section 1(3) constitution of the federal republic of nigeria 1999. 19 second schedule, exclusive legislative list; item 27 1999 constitution of nigeria (as amended). 20 see travaux preparatoires of the negotiations for the elaboration of the united nations convention against transnational organized crime and the protocols thereto (united nations publication, sales no. e.06.v.5), p. 57. 21 united nation convention against transnational organize crime 2014. https://www.unodc.org/unodc/en/organized-crime/intro/untoc.html https://www.unodc.org/unodc/en/organized-crime/intro/untoc.html https://www.unodc.org/unodc/en/organized-crime/intro/untoc.html https://www.unodc.org/unodc/en/organized-crime/intro/untoc.html https://www.unodc.org/unodc/en/organized-crime/intro/untoc.html https://www.unodc.org/unodc/en/organized-crime/intro/untoc.html https://www.unodc.org/unodc/en/organized-crime/intro/untoc.html https://www.unodc.org/unodc/en/organized-crime/intro/untoc.html https://www.unodc.org/unodc/en/organized-crime/intro/untoc.html akutah & agbu: legal framework for curbing transnational organised crime in nigeria 144 | p a g e line with the fundamental principles of its legal system, to criminalize the offenses enumerated within the convention.22 the untoc stipulates the criminalization of four intentional conducts: participation in an organized criminal group (article 5), laundering of proceeds of crime (article 6), corruption (article 8), and obstruction of justice (article 23). while the convention primarily addresses transnational organized crime, it requires states to criminalize these conducts irrespective of any transnational element or the involvement of an organized criminal group, as detailed in article 34, paragraph 2. this ensures that domestic offenses are treated with the same severity as transnational crimes. in combating transnational organized crime, the convention advocates for two principal legal mechanisms: mutual legal assistance (mla) and extradition. mla is a treaty-based framework that facilitates cooperation between states in gathering evidence, and in the tracing, freezing, seizing, and confiscation of criminally derived assets. extradition, another critical mechanism for international cooperation, involves the surrender of individuals by one state to another for prosecution or to serve a sentence for crimes committed within the jurisdiction of the requesting state. this process is typically governed by treaties, which provide the legal foundation for such requests. this academic examination will critically analyze the mechanisms of international cooperation employed in the fight against transnational organized crime. it will explore how states collaborate to transfer suspects for trial or convicted individuals to serve sentences, often in their home countries, thereby aiding their reintegration into society and underscoring the significance of international legal frameworks in addressing the challenges posed by transnational organized crime. extradition act, cap e14 lfn, 2004 the legal framework governing extradition in nigeria is comprised of several key instruments, including the constitution of the federal republic of nigeria 1999 (as amended), the extradition act of 1966, the extradition act (modification) order of 2014, and the federal high court (extradition proceedings) rules of 2015. additionally, the evidence act of 1973 and various criminal or penal codes also play a role in the administration of criminal justice related to extradition. the extradition act, 1966 was enacted on 31st december 1966 and came into operation in january 1967. it was enacted to repeal all previous extradition laws made by or applicable to nigeria and to provide for a more comprehensive legal regime with respect to extradition of fugitive offenders.23 while the constitution provides the general foundational legal framework for extradition law and practice, the extradition act is the primary legislation for specific matters. as the primary statute regulating extradition in nigeria, it recognizes two separate categories of states. states in the first category are those that have an extradition agreement with nigeria and in respect of which an agreement order has been made and published in the federal gazette.24 the second category consists of commonwealth states.25 this categorization is significant because while it is necessary to enter into separate and individual bilateral (or infrequently, multilateral) extradition treaties with states in the first category,26 there is no such requirement for the second category of commonwealth states.27 the extradition act initially conferred magistrates with the jurisdiction to determine extradition proceedings. however, this positioned changed with the coming into force of the 1999 constitution. section 251(1) (i) of the 1999 constitution grants the federal high court exclusive jurisdiction to entertain and determine all extradition related matters. this change in jurisdiction created an apparent conflict because the extradition act was not immediately amended to align with the new constitutional provision. in order to remedy this anomaly, the president of nigeria on 23 may 2014 issued an executive order to amend the extradition act. the extradition act (modification) order 2014 expressly modified the extradition act by not only replacing the magistrate with the judge of the federal high court by also transferring the supervisory powers from high courts of the state to the federal high court. for the purposes of reading and interpreting the extradition act, the extradition act (modification) order must be seen as an integral part of the extradition act. the two must be read together. furthermore, international extradition plays a pivotal role in the global fight against transnational organized crime, as delineated in title 18 of the united states code, sections 3181-3196. these statutes, stipulate that a valid extradition treaty must be in effect for the extradition process to commence. the united states maintains extradition agreements with approximately 111 nations and has recently expanded its treaty network to include around 40 additional countries across asia and other regions, such as australia, the hong kong special administrative region, india, korea, malaysia, the philippines, and sri lanka, while also upholding treaties with key asian states like japan and thailand. extradition of nationals is a complex issue in contemporary extradition practices. common law countries typically do not distinguish between nationals and non-nationals for extradition purposes. however, many civil law countries either prohibit the extradition of their citizens or allow it under exceptional circumstances, potentially creating safe havens for nationals who have committed crimes abroad. some countries opt to prosecute such individuals domestically in lieu of extradition, but these prosecutions can be challenging and costly, often placing significant burdens on crime victims. the u.s. advocates that criminals should not avoid punishment due to their nationality and that offenders should generally be tried in the community most affected by the crime. this stance is increasingly shared by many civil law 22 at its meeting held from 28th to 30th october, 2013 the working group on technical assistance recommended inter alia, that the united nations office on drugs and crime (unodc) should continue to provide coordinated technical assistance to states to ensure the effective implementation off the organized crime convention. the working group also recommended the unodc should continue the development of technical assistance tools, for the convention and the protocols therefore and on specialized issues including mutual legal assistance and extradition (see ctoc/cop/we2/2013/5). 23 preamble, extradition act, 1966. 24 section 1 extradition act, 1966. 25 section 2, ibid. 26 section 1 extradition act, 1966. 27 section 2, ibid. african customary and religious law review (acarelar) 5 (2024) 145 | p a g e countries. historically, mexico extradited a citizen to the u.s. for the first time in 1996, and colombia resumed extraditing its nationals to the u.s. in 1999 after a decade-long hiatus. bolivia, argentina, and uruguay have signed extradition treaties with the u.s. that include provisions for the extradition of nationals. most new u.s. extradition treaties mandate the extradition of nationals, and negotiations are ongoing with several european countries to include such provisions. in respect to nigeria’s jurisdiction there are some local classical cases which explains in details the position of extradition act as stated in the cases of attorney general of the federation v anuebunwa28, abacha v. fawehinmi29, mobil producing v. lasepa30, abubakar v. nasamu31, etc. mutual legal assistance in criminal matters act 2018 mutual legal assistance (mla) is a key legal tool in the fight against transnational organized crime. mla involves the provision of assistance in the collection and transmission of evidence or information by one country’s authority to another, in response to a request for assistance in an investigation or ongoing criminal matter. with crime increasingly operating on an international scale, the law must evolve to address this reality and ensure justice for victims. nigeria is committed to supporting investigative, prosecutorial, and judicial authorities in the battle against international crime and is capable of providing a broad range of mutual legal assistance. in this article, the concept of mutual legal assistance will be employed as a strategic tool in the fight against transnational organized crime. mutual legal assistance requests are typically based on treaties known as mutual legal assistance treaties. mutual legal assistance treaties represent a significant advancement over traditional letters rogatory, offering a structured legal framework for international cooperation in criminal matters. the united states currently enforces mlats with thirty-one nations, encompassing a diverse range of jurisdictions from switzerland to the hong kong special administrative region.32 these agreements extend across major european countries and key ‘bank secrecy’ areas, reflecting a strategic coverage of global financial hubs. an additional twenty-three mlats have been signed and are poised to become operative shortly, bringing the total to fifty-four. this burgeoning network is set to parallel, if not surpass, the existing web of extradition treaties. nations such as the philippines, korea, canada, australia, and the united kingdom are actively engaging in mlat negotiations, indicating a global trend towards enhanced judicial collaboration. the u.s. prioritizes the establishment of mlats within asia to effectively combat transnational organized crime networks, including the notorious chinese triads. existing mlats with thailand, the philippines, korea, australia, and the hong kong special administrative region exemplify this focus. furthermore, the u.s. is negotiating an mlat with japan, a process initiated by the foresight and diligence of unafei director kitada. mlats impose a clear duty on signatories to assist one another in criminal investigations. the scope of assistance includes, but is not limited to:33acquisition of financial records, witness interrogation and statement procurement, access to governmental documents, such as police reports, document service and custody transfers for cooperative purposes, execution of searches and seizures and asset freezing and repatriation of stolen goods or illicit proceeds. mutual legal assistance treaties delineate the extent of the obligation to provide judicial cooperation. these treaties mandate that assistance be rendered from the investigation’s inception, even before formal charges are levied. this provision addresses and rectifies a limitation often encountered with letters rogatory. mlats clearly define the circumstances under which cooperation may be withheld. common grounds for refusal include requests related to political or military offenses not recognized by standard criminal law or those contravening the requested state’s constitution. additionally, mlats universally allow for the rejection of requests that compromise the ‘essential interests’ of the requested state, such as national security or fundamental public policy. this explicit articulation of refusal conditions lends predictability to the process of international legal cooperation. notably, some of the earliest u.s. mlats, including those with switzerland and the netherlands, featured an enumerated list of offenses eligible for assistance, allowing for denial if the crime was not listed. this approach proved counterproductive, hindering collaboration in significant cases where the legal frameworks of the involved countries diverged without impacting any ‘essential interest.’ subsequent mlats evolved to permit assistance for any offense meeting the criterion of ‘dual criminality,’ meaning the act constitutes an offense in both the requesting and requested states. however, this requirement was eventually deemed overly restrictive, especially during preliminary investigation stages where the precise charges may be uncertain. therefore, most mlats have abandoned the dual criminality prerequisite, except for requests involving search and seizure or asset forfeiture.34 a pivotal innovation in mlats is the requirement for each signatory to appoint a ‘central authority’ – a designated agency or official responsible for the swift execution of requests. typically, this role is assigned to the ministry of justice or the attorney general. the effectiveness of a central authority transcends that of a passive conduit; it is expected to actively facilitate the fulfilment of each request. practical 28 (sc.cv/118/2021) 29 (2006) 6 nwlr pt.660 30 (2002) 18 nwlr pt. 786 31 (2012) 17 nwlr pt. 1330 32 offences subsequently lead to other offences, for example, attacks result in information theft, and then stolen information can be sold and used by those who bought it to commit fraud. 33united nations convention against transnational organized crime and the protocols thereto at: http://www.odccp.org/ odccp/crime_cicp_convention.htmlaccessed on 5th may, 2024. 34 french criminal code, title v, art. 450-1 to art. 450-4; italian penal code, regio decreto 19 oct. 1930, n.1390, art. 416 (associazione a delinquere) and art. 416-bis (associazione a delinquere di stampo mafioso) and spanish criminal code, association illicit art. 515 y 516 codigo penal. http://www.odccp.org/odccp/crime_cicp_convention.html http://www.odccp.org/odccp/crime_cicp_convention.html akutah & agbu: legal framework for curbing transnational organised crime in nigeria 146 | p a g e experience underscores that the efficacy of a central authority is instrumental to the success of an mlat’s implementation. 4. powers of the attorney-general in extradition under the constitution of the federal republic of nigeria, 1999 the attorney-general’s authority in extradition matters is derived from section 174 (1) (a) of the constitution, which empowers the attorney-general to initiate and conduct criminal proceedings against any person in respect of offenses created by the national assembly, excluding court-martial cases. extradition requests must be accompanied by specific documents, including an affidavit by a designated officer, a copy of the indictment or charge sheet, a duly authenticated warrant of arrest, and/or a copy of the judgment and sentence passed on the fugitive, as well as a copy of the relevant law from the requesting state. an extradition request is deemed appropriate when the fugitive is located within nigeria. the request must be made in writing, submitted by a diplomatic or consular representative of the requesting country to the attorney-general of the federation and minister of justice, and include the aforementioned documents and a certificate of conviction from the requesting country. upon receipt, the attorney-general may exercise the powers prescribed by the constitution and section 6 of the extradition act. reciprocity is a fundamental principle of international law that countries may adopt in the absence of a formal treaty. nigeria acknowledges and can engage in reciprocity for all non-coercive requests for mutual legal assistance in transnational organized crime, regardless of whether there is a bilateral or multilateral agreement with the requesting state. however, extradition requests to nigeria must be based on an enforceable bilateral or multilateral legal instrument shared with the requesting state. the central authority unit within the office of the attorney-general of the federation oversees administrative and prosecutorial procedures. this unit is also responsible for filing extradition processes in court and overseeing the proceedings to completion. the federal high court of nigeria manages the judicial processes. if an extradition application is granted, the fugitive will be remanded in prison custody or held by a law enforcement authority until surrender. the nigerian prison service or a designated law enforcement authority will detain the fugitive until they are surrendered to the requesting state’s authorities. in adherence to international norms, the central authority unit maintains the confidentiality of extradition requests, neither confirming nor denying their existence, nor disclosing details outside relevant government departments without the consent of the requesting state. evidence obtained from foreign jurisdictions under mutual legal assistance will not be used for purposes other than those specified in the request, in accordance with nigerian law. extradition is a key legal mechanism in combating transnational organized crime, allowing states to surrender individuals to other states seeking prosecution or enforcement of a court’s sentence. it is a cornerstone of international cooperation in this domain, often regulated by bilateral treaties that designate the attorney-general of the federation as the central authority, as empowered by the nigerian constitution. extradition is the formal procedure by which individuals charged or convicted of a crime are surrendered by one sovereign entity to another for prosecution or to fulfill a sentence following a legal conviction. as elucidated in the case of george udeozor v federal republic of nigeria35, extradition entails the surrender of an individual, upon request, who is accused of criminal activity by a different legal authority back to the requesting jurisdiction for trial or punishment. for extradition proceedings to commence, it is imperative that a legal warrant has been issued, mandating the appearance of the individual in court to respond to criminal charges. this is distinct from situations where an individual may be sought for questioning, such as a witness. in the matter of attorney-general of the federation v lawal olaniyi babafemi, also known as ‘abdullahi’ or ‘ayatollah mustapha (babafemi)’36, the respondent was sought for allegedly conspiring to support a foreign terrorist organization in the united states. the federal high court was presented with an existing indictment and an arrest warrant issued by a u.s. magistrate judge, which sufficed to categorize the respondent as subject to extradition. in scenarios where an individual has been convicted and sentenced, the potential or ongoing appeal process does not negate their status as extraditable. this was exemplified in attorney-general of the federation v uche okafor prince37, where the respondent, after being convicted by the district court of helsinki, finland, and having the conviction affirmed by the helsinki court of appeal, fled to nigeria without serving the sentence. despite the respondent’s claim of an ongoing appellate review, the federal high court ordered the extradition to finland, focusing on the sentence awaiting fulfillment. the courts have clarified, as seen in attorney-general of the federation v. olayinka johnson (also known as big brother, rafui kofoworola, and gbolahan opeyemi akinola),38 that extradition proceedings are not a venue for trial but rather a procedural expression based on the principle that it is in the interest of all states to prevent individuals from evading justice by fleeing beyond the jurisdiction where they are sought. lord russell of killowen, c.j., articulated in r v. arton (no.1) in 1896 that the foundation of extradition law lies in the broad principle that recognized crimes should not remain unpunished and that nations should assist each other in bringing alleged criminals to justice. it is important to distinguish extradition from rendition, which is a broader term encompassing all methods of returning individuals, including extradition, from one state to another. unlawful or irregular methods, such as abduction or 35 george udeozor v federal republic of nigeria, ca/l/376/05. 36attorney-general of the federation v lawal olaniyi babafemi aka ‘abdullahi’, ‘ayatollah mustapher (babafemi)’ suit no: fhc/abj/cr/132/2013. 37 attorney-general of the federation v uche okafor prince suit no: fhc/abj/cr/28/2013. 38 attorney-general of the federation v. olayinka johnson (aka big brother) (aka rafui kofoworola), (aka gbolahan opeyemi akinola) suit no. fhc/l/16c/2013. african customary and religious law review (acarelar) 5 (2024) 147 | p a g e ‘extraordinary rendition,’39 involve government-sponsored apprehension and transfer of individuals wanted for criminal offenses to the sponsoring state or a cooperative third-party state. extraordinary rendition circumvents the individual’s right to contest their transfer and often breaches international law principles, particularly when the transferred individuals face torture or unfounded criminal charges or trials.40 the 1984 ‘dikko affair’ serves as a historical instance of an unlawful rendition attempt. in the aftermath of nigeria’s 1983 coup d’état, the federal military government sought the return of umaru dikko, a former minister implicated in corruption, from the united kingdom. however, before the british government could formally respond, nigerian security personnel, in collaboration with three israeli nationals, forcibly seized mr. dikko and endeavoured to ship him to nigeria concealed within a crate. this audacious operation was ultimately thwarted by british security forces, resulting in the incarceration of the perpetrators and a subsequent diplomatic rift between nigeria and britain.41 this episode, albeit unsuccessful, exemplifies nigeria’s defiance of established international norms in pursuit of its political objectives. 5. conclusion and recommendations this study has fulfilled its objective by providing a comprehensive analysis of the legal frameworks governing formal cooperation in transnational organized crime, delineating their strengths and weaknesses. it has illuminated practical applications of these frameworks and discussed the challenges and prospects associated with them. the implementation of the proposed solutions is anticipated to enhance international cooperation in combating transnational organized crime, ensuring that criminal justice in nigeria is not impeded by geographical boundaries or national sovereignty. moreover, the article underscores the borderless nature of criminal activities and corruption, necessitating mechanisms that transcend national jurisdictions. mutual legal assistance, as prescribed by international and regional instruments, has proven its worth through practical applications, enabling countries to apprehend criminals and recover assets lost to corruption. despite its limitations, it remains one of the most effective tools for international cooperation against criminal activities, with nigeria having leveraged this practice in several instances. to bolster the awareness and practical application of international cooperation in transnational organized crime in nigeria, there is the need for integration into training manuals. incorporate international cooperation in transnational organized crime into the training and operational manuals of law enforcement agencies to enhance awareness and practical application. also, the national assembly and the attorney general’s office should work in tandem to fortify the existing legal framework. this includes reviewing, negotiating, and domesticating treaties that encompass all facets of cross-border cooperation in transnational organized crime. the establishment of a permanent framework for joint investigations42, recognition of foreign criminal proceedings, and enforcement of criminal judgments, akin to the eu’s arrangements, is crucial. drawing inspiration from the uk’s regulation of investigatory powers act and the european arrest warrant, nigeria should aim to facilitate seamless cooperation within the ecowas region for serious crimes without the stringent requirement of dual criminality.43 furthermore, the national assembly should introduce amendments to the extradition act 1966 to expedite extradition processes. this includes the adoption of provisional warrants of arrest for suspected fugitives within or transiting through nigeria. consider the inclusion of a dedicated chapter on international cooperation in transnational organized crime in the forthcoming amendments to the administration of criminal justice act (acja). this would not only elevate the concept to national prominence but also encourage sub-national entities to establish units focused on interstate and international cooperation in transnational organized crime, mirroring provisions found in the criminal codes of countries like egypt and france. also, the nigerian central authority unit should focus on recruitment and training that specifically addresses the identified skills and knowledge gaps. emphasizing linguistic proficiency in major global languages and providing access to official translators from embassies can streamline international cooperation. additionally, staff should be educated in comparative criminal law and procedures to navigate the legal systems of civil, common, and islamic law jurisdictions effectively. invest in the training of law enforcement and judicial personnel to effectively handle cases involving transnational organized crime, mutual legal assistance, and extradition. moreover, implementing technical aid schemes and exchange programs with other central authorities can enhance understanding of foreign legal systems and establish best practices for international cooperation law enforcement agencies should establish dedicated departments for international cooperation in transnational organized crime. these units should coordinate with the federal ministry of justice and develop policy documents to formalize cross-border law enforcement cooperation within their standard operating procedures. 39 a. singh, globalizing torture: cia secret detention and extradition rendition. new york: open society foundations (2013). 40 article 3 of the united nations convention against torture, prohibits states parties from expelling, returning or extraditing a person to another state where there is substantial ground to believe such a person will be subjected to torture. 41 u. dikko (abduction) british parliament hansard no. hc deb 06 july 1984 vol 63 cc609-17, pp. 609-615; a. akinsanya (1985) the dikko affair and anglo-nigerian relations. the international and comparative law quarterly, vol. 34 no. 3 pp. 602-609; and kassim-comparative law quarterly, vol, 35, no. 3 pp. 526-527. 42 especially joint parallel investigation (jpi) and joint investigative bodies (jibs) which must at always be led or coordinated by personnel from state in which investigation is taking place. 43 this observation is in line with the review of e-commerce legislation harmonization in ecowas (2015) available at https://tft.unctad.org/wp-content/uploads/2019/08/ecowas-study-on-cyberlaws.pdf accessed 22nd february, 2024. https://tft.unctad.org/wp-content/uploads/2019/08/ecowas-study-on-cyberlaws.pdf iloka: affirmative action and the role of lawyers in fostering women’s participation in election processes in nigeria: a critical analysis 11 affirmative action and the role of lawyers in fostering women’s participation in election processes in nigeria: a critical analysis* abstract this study focused on ‘a critical analysis of affirmative action vis-à-vis the role of lawyers in fostering women’s participation in election processes in nigeria’ as its broad objective which also defined the scope and limitation of the study. the research methodology was doctrinal approach, using expository and analytical research design. the main sources of data collection were various legal literatures, both from the physical library and the e-library. for the summary of findings, it was submitted that discrimination against women resulting in their exploitation was traced to so many militating factors not limited to patriarchal hegemony, and that due to these many social ills against women, a few number participate in electoral activities in various forms. it was therefore observed among others that the active participation of women, on equal terms with men, at all levels of decision-making in election processes is essential to the achievement of equality and sustainable development, peace and democracy. sequel to these, the researcher made some recommendations that lawyers who are legislatures should revive the affirmative action bills concerning women and ensure their passage into law, the national assembly should amend the constitution to explicitly define the distinct roles of women in nigerian election processes, lawyers who are heading government parastatals should discourage any discriminatory policy against women, also the magistrates, judges, and justices should be committed in delivering sound judgments in matters pertaining to discrimination against women to form part of the nigerian legal system. finally, this work is significant to scholars of jurisprudence, feminism and human rights, legal practitioners, politicians and political scientists, as well as the judges/justices in any case relating to women democratic rights. keywords: affirmative action, women’s participation, electoral processes, role of lawyers, nigeria 1. introduction the exclusion or restriction of women’s participation in election processes as their democratic right in relation to affirmative action has prevailed in the antiquity. even when democracy had birth ancient athens in 5 th century bc, the exclusion of women from electoral participation and decision making existed. the athenian women had no right to vote or to participate in the democratic processes and they were not considered as citizens.1 even in european countries, women had neither a right to political participation nor involved in the decision making and public affairs up until the beginning of 20th century. therefore, women franchise right is not recognized in the first wave of democratization (1828–1926) in many of european countries.2 as in the case of nigeria, women’s status in election processes and public sector is a very recent phenomenon and still their participation is very low. they are still largely underrepresented in decision-making at all levels.3 they have also not made major progress in attaining political power in legislative bodies and the executives. the number of elected women into government posts is still low.4 more and more women are engaged in formal employment, but are underrepresented in middle and higher management positions. the number of women leaders and decision makers at the various levels of the decentralized government structure does not measure up the percentage of their men counterpart.5 therefore, for a variety of reasons, women tend to be reluctant to *by chinwe patricia iloka, ba(ed), llb, bl, llm, phd, lecturer, faculty of law, chukwuemeka odumegwu ojukwu university, anambra state, nigeria. email: chypat4@gmail.com, cp.iloka@coou.edu.ng. telephone: 08035696281. this is a paper originally presented by the author during the nigerian bar association (nba) nnewi branch law week 2022 held at conv-aj event center nnewi, anambra state nigeria, 23rd – 25th june, 2022. 1m khadar, women political participation and decision making (hargeisa, somaliland, 2013) 66. 2r hague and m harrop, an introduction to comparative government and politics (hitman publishers and co., 2004) 78. 3ministry of labour and social affairs (molsa), gender mainstreaming manual for labour and social affairs sector (2012) 86, the participation of women in political decision making positions was recognized as a electoral right after the adoption of the universal declaration of human rights (udhr) in 1948. articles 2 and 21 of udhr stipulate equal enjoyment of political rights without discrimination on the basis of one’s sex or any other ground. even in most of western states women franchise right is not recognized in the first wave of democratization except in usa, britain and some european countries. like many world countries, the majority of women in nigeria has also been deprived of social, economic and political rights and held low status in the society for much history of the country. they have been denied equal access to education, training and gainful employment opportunities and their involvement in policy formulation and decision making processes have been minimal. 4the report of the nation-wide gender data capture written by the national centre for women development in july 2009 very rightly concluded that ‘even though there is a gradual increase of female elected and political appointees in 2003 and 2007, the margin is still very wide compared to the requirements of the…convention on the elimination of all forms of discrimination against women and the national gender policy’. j egwurube, challenges facing women empowerment in contemporary nigeria (bankwell publishers, 2011) 142-143 5ibid, 67. mailto:chypat4@gmail.com mailto:cp.iloka@coou.edu.ng african customary and religious law review (acarelar) 4 (2023) 12 become political candidates, even with the intervention of domestic (like the minority rule)6 and international bodies for this cause. the only woman presidential aspirant, uju ken ohanenye, stepped down for asiwaju bola ahmed tinubu a day to all progressive congress (apc) presidential primary7. also, the only female presidential aspirant for peoples democratic party (pdp) terila diana oliver got only one vote.8 thus, most legal feminists, human right activists, political scientists, and jurisprudence scholars have delved into this matter, but with no concentration on this particular topic, which arouses the dogmatic slumber of most lawyers. the existing literatures proffer little or no solutions to this quandary, because the roles of lawyers on this subject matter have not met a radical invocation. with these backdrops, it is therefore, the concern of the researcher in this paper to critically analysis affirmative action and the role of lawyers in fostering women’s participation in election processes in nigeria. 2. definition of key terms women’s participation participation is a development approach, which recognizes the need to involve disadvantage segments of population in the design and implementation of policies concerning their wellbeing. the strengthening of women’s participation in all spheres of life has become a major issue in the development discourse. hence, socioeconomic development cannot be fully achieved without the active involvements of women in the decision making level in the democratic government.9 in this milieu, women participation refers to the active involvement and engagement of women, both as individuals and groups, with political process that affect their lives and the dependents. the act of active engagements includes voting, standing for office, joining of political party or to taking part in the political campaigns of the political parties and to exert influence in the decision making process through public debates, and dialogue with the representatives they elected or through their capacity to organize themselves; or exercise public power by holding public office at different levels of administrations – local, regional, national and international.10 electoral participation electoral participation, succinctly put, is not different from the foregoing. it is understood as a prerequisite for political development. hence, by improving women’s electoral participation, given that they constitute over a half of the world’s population may help to advance democratic and political development and improve the quality of women’s lives.11 in fact, without the active electoral participation of women, and the incorporation of women’s perspective at all levels of decision making, the goals of equality, development and peace cannot be achieved.12 affirmative action affirmative action refers to a set of policies and practices within a government or organization seeking to increase the representation of particular groups based on their gender, race, sexuality, creed or nationality in areas in which they are underrepresented such as education and employment.13 in this article, affirmative action is solely concerned with women. 6c haregewoin & m emebet, towards gender equality in ethiopia (2003) 91, for example, the government formulated national policy on women in 1993 with the objective of speeding up equality between men and women, so that women can participate in the political, social, and economic life of their country on equal terms with men, ensuring that their right to own property as well as their other human rights are respected and that they are not excluded from the enjoyment of the fruits of their labour or from performing public functions and being decision makers. 7 o ajayi, apc’s sole female presidential aspirant, uju steps down for tinubu, https://www.vanguardngr.com/2022/06/breaking-apc-sole-female-presidential-aspirant-uju-steps-down-for-tinubu/ accessed on 17 june 2022. 8 e alike and c okocha, atiku defeats wike, becomes pdp presidential candidate, https://www..thisdaylive.com//index.php/2022/05/29/atiku-defeats-wike-becomes-pdp-presidential-candidate/ accessed on 17 june 2022 9aendale, ‘factors that affect women participation in leadership and decision making position’ asian journal of humanity, art and literature (2012) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2601782> accessed on 12th may, 2022. 10khadar (n1) 40. 11n seyedeh, k hasnita & a hossein, the financial obstacles of women’s political participation in iran (upmir, 2010) 49. 12fourth world conference on women (fwcw), ‘beijing declaration and platform for action (1995)’ online database<http://www.unwomen.org/~/media/headquarters/ attachments/sections/csw/pfa_e_final_web.pdf> accessed on 12th may, 2022. 13ibid. https://www.omicsonline.org/open-access/exploratory-study-on-achieving-sustainable-competitive-advantage-throughsupply-chain-innovation-for-strengthening-organizational-p-2162-6359-1000236.php?aid=51687 https://www.vanguardngr.com/2022/06/breaking-apc-sole-female-presidential-aspirant-uju-steps-down-for-tinubu/ https://www..thisdaylive.com/index.php/2022/05/29/atiku-defeats-wike-becomes-pdp-presidential-candidate/ iloka: affirmative action and the role of lawyers in fostering women’s participation in election processes in nigeria: a critical analysis 13 lawyers lawyers, within the nigerian purview, are persons who have successfully passed through the rigorous process of training in law in the university and the nigerian law school before being called to practice as a barrister and solicitor of the supreme court of nigeria. lawyers are professionals who have been trained in law to be versatile in many fields of human endeavours, not restricted to politics and governance. therefore, based on the usage in this article, lawyers may be found as being private legal practitioners, law teachers, administrators in the executive arm of government, legislatures, judges and judicial staff, members of civil right organisations, human right activists, etc. basically, all of these categories of persons have roles to play in promoting affirmative action. also, all of them, being lawyers, are members of nba and fragments of them would be present in the conference. election processes this is the democratic activity engaged in to make choice of leaders to govern the people especially in the executive arm of government. election processes include membership of a political party, expression of interest, purchase of nomination form, involvement in the actual election, emergence of winner, oath of office, swearing in and serving the tenure of the political office.this concept is also, like others, streamlined to women. 3. critical assessment of women’s participation in election processes indices of women participation in election processes world economic forum14 on gender equality world-wide buttresses a ‘positive’ appreciation of the evolution of women in nigeria, using four key variables, economic participation and opportunity, educational attainment, health and survival, and political empowerment. in the area of economic participation of women for example, nigeria moved from the 125th position out of 142 countries in 2011 to the 55th position in 2014. it occupied an enviable 14th position on the question of wage equality over the same period. on the criteria of health and survival of women, its position equally improved from the 121st to the 109th position over the same period. the improvement was even better in the area of political empowerment for women, from the 121st to the 102nd over the same period.15 in fact, women rarely have the same access to resources as men. mba16 affirms that women's power and spheres of influence largely disappeared under the impact of colonialism and external religions, which upset existing economic and social complementarity between the sexes. invigorating the patriarchal hegemony, customary laws on marriage created in response to men's anxieties about the independence of women transformed the previously fluid and negotiable relations between them into rigid duties and obligations of wives and women.17women became field cultivators, commercial vendors and home providers. also, development plans continued to be formulated and implemented without an adequate understanding of women's contributions to the economy. women were also absent from formal positions of decision-making and power.18 women involvement in leadership, both elected and political appointments instances of minority rule19 in the nigerian political scene may be understood in the involvement of the following women: (1) queen amina of zaria, was renowned for her series of conquests and political domination of parts of the old northern states.20 (2) queen idia of benin provided an effective military bastion for her son, oba esigie of benin (3) christy boyo was a political activist (4) funmilayoransome –kuti was a political activist in the western region (5) madam tinubu flourished in commercial venture in lagos. (6) hajiagambosawaba was a political activist in the northern region. (7) mrs kerry was the first woman senator in the then midwest region. (8) franca afegbua was the second republic senator in nigeria 14global gender gap index, 2020. 15ibid. 16n mba, ‘women and politics in colonial nigeria’ paper presented at the symposium on the impact of colonialism on women in nigeria (women’s research documentation centre, institute of african studies, university of ibadan, 1989). 17ibid. 18o w ogbomo, ‘women, power and society in pre-colonial africa’ in s a ajayi (ed.), african culture and civilization (atlantis books, 2005) 361. 19minority rule is a system of government in which the governing party of a country represents only a small proportion of the overall population. while the minority rule states the true nature, the affirmative action advocates for more. wikipedia: the free encyclopedia <https://en.wikipedia.org/wiki/affirmative_action> 15th may, 2022. 20m babangida, democracy and the imperatives of women’s participation in politics’ in ayoade et al (eds) women and politics in nigeria (malthouse, 1992) 119. african customary and religious law review (acarelar) 4 (2023) 14 (9) janet akinrinade (1930-1994) was the minister of states and national planning in the 2nd republic, during the administration of president shehu shagari21 (10) hajia lailadogonyaro, president of the nigerian council for women societies (ncws) and jammiyyar matan arewa (jma) women wing of the defunct northern people’s congress (npc). (11) prof (mrs) bolanle awe founded nigerian council for women societies (ncws) (12) prof (mrs) grace alele williams was the first female vice-chancellor, university of benin22 (13) the renown prof dora akunyili was a two-time minister of the federal republic of nigeria (14) recently is the first nigerian and a woman being the president of world trade organization (wto), dr. ngozi okonjo-iweala.23 the list is in exhaustive as there are other profound women.24 according to okwuosa,25babangida took so many affirmative actions and include women in all areas regarded as the exclusive concern of the men. the climax of it all was the establishment of the better life for rural women programme of the first lady, maryam babangida. obi26 maintained that despite the progressive steps by babangida administration towards promoting women’s participation in governance and leadership in nigeria, the number of women in key policy positions remained low when compared with their male counterparts. according to obi,27 only 3 women were appointed out of thirty one members of the federal executive council during the regime of abdulsalami abubakar. it is remarkably noticed that even though the military regime is shrouded in secrecy, the leaders at the time were pragmatic to involve women in governance. democratic regime of president shehu shagari (1979 – 1983) gave more women a noticeable position in governance.28 but from then till now, women involvement in politics have been accorded more attention with the consistent agitations for affirmative action. there has been the national policy on women which is aimed at increasing the active participation of women in all levels of governance to such an extent that their inputs in national development would be recognized and appreciated.29according to aishatu30 the policy acted as a guarantee for a future full of hope and promise. following national economic, empowerment and development strategy (needs)31 advice, women should be given 30% which later on was upgraded to 40% of all appointive positions. women, according to obi,32 are now inching for 50% representation in all elective and appointive positions. however, if the 30% demand was a difficult attainment till date, then the demand for upgrade to 40% and later 50% remains a dream utopia in the african patriarchal hegemony. challenges of women in election participation the lives of women in nigeria have been profoundly affected by remarkable developments since the onset of economic and social decline in the 1970s and 1980s. first is the implementation of the structural adjustment programme in 1983.33 owning to the specific roles and positions of women within the society, they were the worst affected by cuts in social sector spending, where substantial costs were shifted from the state to the household. therefore, women have been forced to take on an increasing burden of unpaid work in caring for the sick, obtaining food and ensuring the survival of their families more generally. second is the increased civil strife, unrests and conflicts. united nations development fund for women (unifem)34notes that most displaced persons and post-conflict returnees are usually women and children. conflicts and civil unrests have 21ibid. 22egonmwanin, women in development (ambik press, 2002) 91. 23 she has served as a minister of finance in nigeria. 24in other parts of the world, women like angela of germany and ellen-johnson of liberia have also made impacts in feminism and featured in the monarchical life of britain, the netherlands, and the world over. 25a. okwuosa, ‘women in democratization process in nigeria: gains and limitations’ in omoruyi et al (eds) democratization nigerian perspectives, vol. 2 (hima and hima press, 1994) 289. 26m a obi, ‘women’s participation in democratic governance and leadership in nigeria’, international journal of studies in the humanities (2007) (4). 27ibid. 28the period paraded among others mrs. oyebola, mrs. ivase, minister of national planning/education, and others in the house of representatives and one in the senate. 29ibid. 30h aishatu, the cycle of leadership: how great leaders teach their companies to win (tichy and cardwell, 2006) 22. 31 needs, a needs document reprinted by central bank of nigeria (abuja: cbn press, 2004). 32obi (n24). 33the structural adjustment programme implemented in the country in 1983 emphasized demand management and supplyoriented measures narrowly focused on export-led growth and efficiency, often to the detriment of social welfare. the programmes also introduced liberalization of trade regimes and of the financial sector, as well as privatization and reduction in the role of the state in economic life. this drastically affected mostly the women. united nations development fund for women (unifem), thedecade of review of the implementation of beijing platform for action (beijing, british council/nigeria, 2004). 34ibid. iloka: affirmative action and the role of lawyers in fostering women’s participation in election processes in nigeria: a critical analysis 15 increased violence against women and worsened the social and economic conditions under which they live. third is the acquired immune deficiency syndrome (aids) crisis, high and increasing rates of human immune virus (hiv) infection and the costs in human lives. united nations development programme (undp)35 reports that just over half of the estimated 20 million cases of hiv in africa are female. women and girls are particularly vulnerable because of their lack of power over their sexuality and reproductive functions. other impediment factors in effective participation of women in politics include socio-cultural factors, religious, economic, gender roles, patriarchy, family work and time constraints, education and training, lack of proper awareness on political activities and women’s own factors, child marriage, limited access to resources, traditional practices, time of meeting by political parties and the rest. irrespective of the existence of many gender-sensitive and gender-responsive institutional mechanisms put into place by public authorities in nigeria, we believe that the global environment in which nigerian women live is predominantly woman indifferent and woman depreciating even if not openly woman hostile. 4. the place of lawyers in fostering positive responses to women participation tn election affirmative action argument affirmative action refers to a set of policies and practices within a government or organization seeking to increase the representation of particular groups based on their gender, race, sexuality, creed or nationality in areas in which they are underrepresented such as education and employment.36democratic governance is almost everywhere a male-oriented, male-dominated enterprise and female political participation is as such not good as expected. in today’s discussion of women’s political representation, there are different important arguments. the justice argument argues that women account for approximately half the population and therefore have the right to be represented as such. the experience argument posits that women’s experiences are different from men’s and need to be represented in discussions that result in policy-making and implementation.37 these different experiences mean that women ‘do politics’ differently from men. the interest argument posits that the interests of men and women are different and even conflicting and therefore women are needed in representative institutions to articulate the interests of women. the symbolic argument says that every female politician acts a role model for all women, regardless of political views or party membership and will attract other women to the electoral arena. the critical mass argument states that women are able to achieve solidarity of purpose to represent women’s interests when they achieve certain levels of representation.38 finally, lawyers in the democracy argument or movement uphold that the equal representation of women enhances the democratization of governance in both transitional and consolidated democracies.39 all of these arguments succinctly deal with the importance of women’s participation and inclusion in election processes. sequel to this, women need to be included significantly with men in every election process. descriptive (numeric) representation theory descriptive representation deals with widely acceptable share of seats in parliament as an indicator of political inclusion in society for a category such as women. the term descriptive representation denotes representation on the basis of common characteristics and share experience, for instance representing some one based on gender or class can be categorized as descriptive representation of women.40 women’s descriptive representation is albeit low. lawyers expressed concerns about women being brought into governance machineries without being able to make any significant shifts in the status of women or policy frameworks to address women’s rights, what is often seen as co-optation.41 35united nations development programme (undp), world bank report, human development report. any society committed to improving the lives of its people must also be committed to fully equal right for all (washington d.c., 2008). 36aishatu (n28) 222. 37p norris and r inglehart, ‘cultural barriers to women’s leadership: a worldwide comparison,’ international political science association world congress<https://www.omicsonline.org/searchresult.php?keyword= parliament> accessed 12th may, 2022. 38ibid. 39expert group meeting (egm), ‘equal participation of women and men in decision-making processes, with particular emphasis on political participation and leadership’ online database <http://www.un.org/womenwatch/daw/egm/eqlmen/finalreport.pdf> accessed on 12th may, 2022. 40l wangnerud, ‘women in parliaments: descriptive and substantive representation’ (2009) (12) annual review of political science, 35-42. 41ibid. %20'equal%20participation%20of%20women%20and%20men%20in%20decision-making%20processes,%20with%20particular%20emphasis%20on%20political%20participation%20and%20leadership %20'equal%20participation%20of%20women%20and%20men%20in%20decision-making%20processes,%20with%20particular%20emphasis%20on%20political%20participation%20and%20leadership african customary and religious law review (acarelar) 4 (2023) 16 substantive representation theory substantive representation deals with women’s interests, gender equality and rational behind women representation. a core idea in this strand of research is that there are certain interests and concerns that arise from women’s experiences and that these will be inadequately addressed in a politics that is dominated by men. in research on substantive representation of women, an aspect of politicization is introduced. it is commonly argued that societies will not achieve equality between women and men by simply disregarding gender-related differences.42 in more concrete terms, substantive representation is about the impact of women in decision-making positions on policy formulation and implementation. policies can be aimed at gender mainstreaming or can explicitly advance agendas for gender equality in one area of policy. women’s presence has also proven to be important in the formulation of policies on development, sustainable peace, and good governance. legal scholars have shown that women in decision-making positions play a crucial role in developing meaningful gender mainstreaming strategies, which effectively and authoritatively ensure focus on gender equality in all policy areas. studies of gender mainstreaming have shown that unless there are key decision-makers and policy actors ready and willing to define gender mainstreaming as a means to achieve gender equality, mainstreaming efforts will not necessarily enhance women’s rights.43 some human rights analysts in the feminist jurisprudence have identified the potential of a triangle of women’s empowerment (towe), in which women in political positions, both elected and appointed, work with national machineries for the advancement of women and the women’s movement to ensure the formulation and implementation of meaningful policies on gender equality. this collaboration has the potential to contribute to the democratization process in struggling democracies and in making stable democracies even more democratic.44 international efforts made by lawyers the international concern for women has gained serious recognition and that in effect has awakened the various domestic governments in the international parlance to the needs of women inclusion in their political and leadership positions. iman45 observed that nigeria’s involvement of its women folk to developmental activities assumed visible dimension when the united nations organizations declared the year 1975 as international year of women. and since then, march 8 of every year has been set aside by the un for celebrating the occasion. in july, 1980, an agreement was reached by all member states that every nation should recognize the need for the involvement of women in nation building. in continuation of this assertion, egonmwan46 stated that africa’s collective appreciation of women’s participation in election found concrete expression in the lagos plan of action which was the policy voice of african heads of states and government in a meeting held in lagos, april, 1980. it was reiterated that african states is advised to develop policies and strategies for women’s full participation in election processes and all other democratic activities. nigeria’s response to this was the establishment of national committee on women development (ncwd) and also setting up parallel committee in 21 states of the federation. the basic function of this committee was to promote awareness in women.the federal government signed and ratified the convention on the elimination of all forms of discrimination against women (cedaw).47 this convention otherwise known as cedaw joined the un and economic community of west africa states (ecowas) organizations to compel african countries to ensure women have adequate representation in politics, access to health care, ensuring proper education and access to credit and loan facilities. in fact, the universal declaration of human rights recognizes the radical equality of men and women in dignity.48 therefore, african women in which the nigerian women lead the pack, as indispensable transmitters of the family values, need to be politically and all round empowered to enable them attain their optimum goals in life. some countries that have top the list of gender equality based on ranking are iceland, finland, norway, sweden, new zealand and yemen.49 nigeria is within the middle range and it is trying to toe the line of the tops in gender equality. the continuous, though scanty, involvement of women in international politics and leadership is commendable. 42phillips, a. multiculturalism without culture (princeton university press, 2015) 97. 43ibid, 99. 44ibid, 101. 45a m iman, ‘the dynamics of winning: an analysis of women in nigeria (win)’ in m j alexander & c t mohanty (eds) feminist genealogies, colonial legacies, democratic future (routledge publishers, 1997) 130. 46 j aegonmwan, public policy analysis: concepts and applications (resyin, 2002) 167. 47other international instruments include: undp 1995 human development report; african charter on human and people rights; and the convention on the rights of the child. 48m idika, ‘the participation of women in politics in nigeria: a case study of the legislative assembly and the executive’ online database <https://www.researchgate.net/publication/317415636_theparticipation ofwomeninpoliticsinnigeriaacasestudyofthelegislativeassemblyandtheexecutive> 12th may, 2022. 49ibid. iloka: affirmative action and the role of lawyers in fostering women’s participation in election processes in nigeria: a critical analysis 17 the journey so far in this milieu women participation in elections in nigeria, as observed by akirinade,50 dates back to 1928, aba women riot, and since then nigerian women have delved into different aspects of partisan politics first by campaigning for men as husbands or as candidates of their choice. it is quite easy to use women as campaign tools because they can pull crowd. the 14th century story of queen amina of zaria, has defined a new role for women, through her bravery and exemplary leadership, nigerian women became aware of the roles they could play assisting the men in election processes. dibia51 confirming the above assertion stated that nigerian women have continued to contribute significantly to the wellbeing of the human race and they constitute up to 60% of the total population. sadly, women have not been recognized in the election processes even though they have made several efforts to the progress of the nation. nevertheless, the efforts of the nigerian government to improve the lot of women was pointed out by buchanan52 that nigerian government has started operating scholarship scheme for interested female candidates that do exceptionally well in science and other related subjects realizing the need of education in supporting women’s active participation in all spheres of life. for this reason, two technical colleges have been devoted to the enhancement of women development in the country this is an indication of government policy in the use of mass media to propagate women education. both the federal and state governments education ministries seek to encourage parents to send their female children to school. in support of the above, a prominent monarch in ashiru, kaduna state, advised parents to see the girl child education as a task to be achieved and a vital issue to the development of society. he used the common adage: ‘if you educate a man, you educate a person, but if you educate a woman, you educate a society’53 to elucidate his point. there are various instruments for ensuring women are not exclusive of the government’s official policies. legal aid and legal literacy, according to dibia,54 are the most popular components of government effort to reduce female abuse. he confirmed that the family law centre is a legal services advisory centre offering free legal advice on all family legal problems to low-income people. akande and kuye55 have free publications targeting school age children in the hope that they will read it to their mothers while also learning on their own. the legal aid process has made its outstanding success in the case at the court of appeal in mojekwu&ors v mojekwu&ors56on customs and practices against women which were repugnant to natural justice57 and against the constitutional right of freedom from discrimination.58 also the supreme court held in anekwe v nweke59 that any custom which denies a woman right to inherit her deceased husband’s or father’s property are repugnant to natural justice, equity and good conscience and ought to be abolished. with the establishment of the new ministry for women affairs in 2000 by the former president olusegun obasanjor, in continuation of general sani abacha’s legacy, there have been consistent efforts to integrate women into full political involvement. the rationales for women’s ministry are successful election processes and supply a wide range that it will encourage women to enter the labour force through of talents and services demanded by the general public. but there are still more to be done by concern actors, especially the lawyers, in order to realize this motive. impact felt according to haque,60 ensuring women’s electoral participation is essential to bring legitimacy to government and establish democracy in its real and practical manner, as validity and trustworthiness of democracy can be in question if females, who are above 50% of the population, stay marginalized or segregated from the political and public institutions in the society.61 in addition to this, the degree and level of women’s representation in the government has considerable and significant impacts on the lives of the people in any operational democracy and public milieu.62 therefore, increasing women’s representation and participation in the electoral and public decision making positions is significant, according to melesse and ojulu, in the following ways: 50s akinrinade, ‘women in nigeria’, newswatch, special edition (1990) 30. 51r dibia, public administration, politics and change in the principles of governance in nigeria (mbeyi and associates, 2004) 219. 52 e buchanan, ‘women struggle for change’ west africapapers (1993) 21 – 23. 53j c ashiru, celebrating the fourth world conference on women (unifem, 2009) 65. 54dibia (n49) 221. 55j akande and p kuye, nigeria family law project in empowerment and the law; strategies of 3rd world women (washington dc oef international, 1986) 120. 56mojekwu&ors v mojekwu&ors (1997) 7 nwlr 283 as against the decision in akinnubi v akinnubi (1997) 4 nlr (pt 484) 144; and uboma v ibeneme (2001) 14 wrn 31. 57ukeje v ukeje (2001) 14 wrn 31; and the latest case of umedi v chibunzi (2020) 10 nwlr (pt.1773). 58constitution of the federal republic of nigeria, 1999 (as altered) section 42. 59 (2014) lpelr-22697 (sc), (2014) 4 sc (pt 111) 65, (2014) 9 nwlr (pt 1412) 393, (2014) all fwlr (739) 1154 60m haque, ‘citizen participation in governance through representation: issue of gender in east asia’, international journal of public administration (26) (2003) 569-590. 61ibid. 62p panday, ‘representation without participation: quotas for women in bangladesh’, international political science review (29) (2008) 489-512. african customary and religious law review (acarelar) 4 (2023) 18 is a question of democracy, democratic process, and equality as well as a question of political and civil rights that has been guaranteed by the international organizations’ (un) agreements, treaties, covenants and conventions; facilitates more changes and pave the way for more spaces to women; calls for the efficient, maximum and equitable utilization of human, financial, material and information resources by all human beings; avoids the questions that would be raised about the legitimacy of the democratic process and decision making authorities; can allow women to address their basic problems and needs in the community; and, ensures the openness (transparency), real fight against rent-seeking (mainly the recently rampant corruption), accountability, political commitment, political leadership, and political responsiveness of the existing national, regional, zonal/districts, and local levels political democracy, democratization process, and governance of the governments and political institutions, and promotes peace and democratic development in any country as a whole.63 moreover, without greater representation of women in parliamentary and executive positions as well as in the judiciary, it is difficult to achieve participatory, accountable, and transparent governance which can ensure political, cultural, social and economic priority goals of the wider society. besides, every human being has the right to participate in decisions that define her or his life. this right is the foundation of the ideal of equal participation in decision-making among women and men. this right argues that since women know their situation best, they should participate equally with men to have their perspective effectively incorporated at all levels of decisionmaking, from the private to the public spheres of their lives, from the local to the global.64 in respect of equality principle, women’s equal participation in political life plays a pivotal role in the general process of the advancement of women. women’s equal participation in decision-making is not only a demand for simple justice or democracy but can be seen as a necessary condition for women’s interests to be taken into account. without the active participation of women and the incorporation of women’s perspective at all levels of decision making, the goals of equality, development, and peace will be a utopia. the way-forward through effective roles of lawyers lawyers as earlier expatiated can exercise their professional skills as private legal practitioners, law teachers, administrators in the executive arm of government, legislatures, judges and judicial staff, members of civil right organizations, human right activists, etc. to reemphasize, all of these categories of persons have roles to play in promoting affirmative action. given that lawyers are spread across the different human endeavors, it means that their influence cut across all the human endeavours and walks of life, logically they can impact so much in fostering women’s participation in election. however, the assumption does not turn out positive. for instance, the national assembly is blessed with a commendable of number of lawyers as members. sadly, these lawyers play patriarchal hegemony roles to bills on affirmative action affecting the women. recently, the national assembly sought to amend the constitution of the federal republic of nigeria, 1999 (as altered). a number of bills on some prevalent issues were sponsored and read on the floor of the national assembly. one of those bills was on the affirmative action.65 the bill sought to amend section 223 of the constitution,66 to ensure women occupy at least 35 percent in appointive positions. there was another bill which was rejected and it was about ministerial or commissioner nomination. the bill sought to amend sections 147 and 192 of the constitution,67 so that at least 35 percent of nominees are women. another bill, referred to as the reserved seat bill was to, among others, amend sections 48, 49 and 91 of the constitution68 to create additional 37, 74 and 108 seats for women at the senate, house of representatives and state house of assemblies, respectively.69 all these bills were rejected and could not survive the second reading in bill process on the floor of the national assembly. this supposed not to be the case as lawyers who are better informed on human rights than the laymen supposed to have aligned their arguments in buttressing the lead debate for the bills to have survived the second reading, committee level 63a melesse & o ojulu, ‘assessment of gender equality in ethiopia: the position of ethiopian women’s political representation from the world, sub-saharan africa and eastern africa ethiopian civil service university,’ journal of law, policy and globalization (2014). 64r miranda, ‘equal participation of women and men in decision-making processes: with particular emphasis on political participation and leadership’ online database <http://www.un.org/womenwatch/daw/egm/eql-men/finalreport.pdf> accessed 20th may, 2022. 65t awodipe, ‘towards improving women’s participation in 2023 elections’ the guardian: online database <https://guardian.ng/politics/towards-improving-womens-participation-in-2023-elections/> accessed on 18th may, 2022. 66constitution of the federal republic of nigeria, 1999 (as altered), section 223. 67ibid, sections 147 and 192. 68ibid, sections 48, 49 and 91. 69awodipe (n62). iloka: affirmative action and the role of lawyers in fostering women’s participation in election processes in nigeria: a critical analysis 19 and third reading for passage into law. rather, the female members who are less than the average minority were left to maneuver and wallow alone in the situation which ended them in the abysmal lose. the case would have been different with the vibrancy and vigour of lawyers. in the judiciary, lawyers who have become magistrates, judges and justices have enormous role to play to foster women’s participation in election. their role majorly come to bare in the cases before them. some of these cases border on fundamental right enforcement involving women, election petition matters involving women, corruption charges involving women, judicial review on administrative decisions affecting women, and so on. most of these cases may be with some elements of victimization on women from the men’s folk in exercise of patriarchal hegemony. in most cases, the court or tribunal may be influenced with money, flashy promises, political intimidations and/or threats which mostly emanate from the adverse party who is a male. thus, the court or tribunal may yield to them to the detriment of the woman and invariably pervert justice to favour the man. promotion of this trend would impede the movement for affirmative action in fostering women’s participation in election. therefore, the court or tribunal, which is the home of the lawyers, should uphold justice and equity at all times to promote the minority rule which covers the women. administratively, lawyers can enforce affirmative action in favour of women in different ways. these include equal appointments of men and women into administrative offices, equal employment opportunities, equal leadership opportunities in the public offices, as well as equal entitlements. furthermore, lawyers in the administrative sectors or executive arm of government have the responsibility to promote affirmative action by sponsoring executive gender friendly bills to the respective legislative houses. also, they can intimidate the issuance of executive orders that work in the interest of women and their participation in election. lawyers who are committed to civil society organizations, journalism, and media advocacy equally have roles that cannot be overemphasized. consistent publicity on the good side of women, the successful roles of women in their respective responsibilities, women with astute performance in politics and the different walks of life, and the rest can go a long way to promote affirmative action in favour of women for election participation. succinctly put, only the lawyers can make so much impact in this milieu, thus the slumber needs to be revitalized for mind limberness. 5. conclusion and recommendations this study has made vigorous attempt to critically examine affirmative action and the role of lawyers in fostering women’s participation in election processes in nigeria. the study started with the historical dimension of women, their non-inclusion in electoral activities even though they have shown interest prior to colonization. basically, the challenges of women in election process go beyond patriarchal hegemony. international response to minority rule was also highlighted as it activates the african nations vis-à-vis nigeria to action. nevertheless, a lot is still expected because the gap between men and women in election processes is still very wide. however, it was observed that despite the discrimination and many social ills against women, there are still women who have made indelible marks in the country’s democracy. sequel to the foregoing, some recommendations are prerequisite as follows: (1) lawyers who are legislatures should revive the affirmative action bills concerning women and ensure their passage into law. (2) the national assembly should amend the constitution to explicitly define the distinct roles of women in nigerian election processes. (3) lawyers who are heading government parastatals, especially in the ministries of education in federal and states should discourage in totality any discriminatory policy in academic environment that is against women, whether in admission, employment, promotion, or appointment and even with regards to other matters relating to women’s wellbeing. (4) magistrates, judges, and justices should be committed in delivering sound judgments and rulings in matters pertaining to discrimination against women and make it form part of the nigerian legal system. (5) every legal practitioner, human rights activist, media personnel and all patriotic citizens should encourage any woman politician to gear her up towards her political aspiration and good performance in office. (6) lawyer who is in the executive arm of government should do better to promote affirmative action against the minority rule phenomenon. (7) lawyers who are in the civil society organizations and the media should be committed to activities that motivate women to be confident in their capabilities. (8) female lawyers should come together and use their various platforms to encourage their fellow women to be credible and focused in their political interest and good leadership in all walks of life. (9) child marriage should be criminalized and child matters should be included in the exclusive list of the constitution. african customary and religious law review (acarelar) 4 (2023) 20 (10) education should be made free and compulsory in primary and secondary schools and right to education should be included in chapter four of the constitution. (11) political arena should be free from violence in order to make the atmosphere conducive for women who are vulnerable in nature. (12) time of meeting of political parties should be during the day and not at night because such deters the women from attendance and that is where most of important decisions are taken. (13) there should be sensitization of both men and women in relation to women empowerment in political participation. (14) there is urgent need for amendment of section12 of the constitution for enforcement of international treaties and conventions which promote women’s rights. african customary and religious law review (acarelar) 4 (2023) 100 the international criminal court and its major actors: an analysis of their role towards attaining criminal justice* abstract the international criminal court is charged with an enormous task of ending global impunity through trying perpetrators of most serious crimes. over the past two decades the court has encountered several challenges that have hindered its mandate of administering international criminal justice. most times the criticisms directed at the court are as a result of its reliance on certain institutional actors. this research analysed the role of the court’s major actors in aiding the court towards attaining its criminal justice mandate. it was found that states have not fared well in giving the court the needed support, particularly in terms of cooperation. more so, the court’s alleged exclusive focus on the african region also affects its justice mandate. additionally, the investigations of the office of the prosecutor (otp) have been found to be marred in politics and discriminatory practices. the activities of the united nations security council (unsc) have been discovered to affect the icc’s legitimacy to a great extent. the methodology adopted is doctrinal with the ‘law in context’ approach; research materials were sourced from international instruments, statute, case laws, books, journal articles and online materials. keywords: international criminal court, state cooperation, office of the prosecutor, referrals, united nations security council and veto power. 1. introduction most times the criticisms directed to the international criminal court (icc) are as a result of the actions of the major actors constituting the court. this study seeks to examine the practice of the state parties to the rome statute, the office of the prosecutor (otp) and the united nations security council (unsc). this is in order to find out if these organs align their activities to the furtherance of the court’s goal of ending impunity. particular emphasis will be placed on the controversies surrounding state cooperation and the court’s severed relationship with the african nations in the subsections of 1.2 of this study. the research will proceed to analyse the practice of the otp in case selection and investigations under 1.3. finally, the referral practice and the utilisation of the veto power of the unsc will be examined under the subsections of 1.4 of this work. 2. state parties relationship with the court the icc relates with its state parties both on an individual and a collective basis. the latter taking the form of the assembly of state parties (asp). by ratifying the rome statute, the legal obligation enshrined under article 26 of the vienna convention becomes operative. this provision otherwise referred to as the principle of pacta sunt servanda affirms the binding nature of conventions and treaties and requires signatory states to such instruments to act in line with the purpose of their agreement.1 consequently, state parties to the rome statute are obliged to comply with the provisions of the law establishing the court which they willingly consented to. the activities of the state parties are fundamental as it affects the court’s justice delivery system. the state parties have been argued to affect the icc in three ways: by making the rules of the court, by cooperating with the court and through adopting the court’s budget.2 cooperation from states is pivotal for the icc given the latter’s lack of an enforcement mechanism. highlighting its importance, a former president of the court stated that the cooperation of states, civil societies and intergovernmental organisations is necessary for the court to effectively discharge its mandate of ending impunity.3 the united kingdom’s (uk) representative to the court, lord ahmed, stating the uk’s role in aiding the enforcement of the custodial sentence of ahmed al mahdi, called upon the asp to work together with the court in order to ensure that icc efficiently and effectively delivers accountability and justice for most serious crimes.4 it is quite unfortunate that the icc’s relationship with state parties has been characterised with controversies. there have been shortfalls in state cooperation, particularly as it relates with powerful nations.5 furthermore, the court’s *by chidimma dorathy umego, llm, aciarb, bl, llb, lecturer at the faculty of law nnamdi azikiwe university, email: cd.umego@unizik.edu.ng, tel: +2348164009023; *vivian chinelo arinze, llm, bl, llb, lecturer at the faculty of law nnamdi azikiwe university, email: vc.arinze@unizik.edu.ng. tel: +2348033135965; and *chidimma anuli ewelukwa, llb, bl, llm, phd candidate, lecturer at faculty of law nnamdi azikiwe university, email: ac.ewelukwa@unizik.edu.ng. tel: +2348036517077 1 vienna convention on the law of treaties (adopted 23 may 1969, entered into force on 27 january 1980) 1155 unts 331, art 26. 2 hannah woolaver and emma palmer, 'challenges to the independence of the international criminal court from the assembly of states parties' (2017) 15(4) journal of international criminal justice 641. 3 judge philippe kirsch, ‘the role of the international criminal court in enforcing international criminal law’ (2007) 22 am. u. l. rev. 539, 547 (as cited in rebecca a shoot, 'navigating between scylla and charybdis: how the international criminal court turned restraint into power play' (2018) 33 emory int'l l rev 133, 135) 4 lord tariq ahmad, ‘united kingdom: speech assembly of states parties of the international criminal court 2019’ asia news monitor (bangkok, 4 december 2019). 5 destaw a yigzaw, 'the international criminal court: biased against africa or weak towards the powerful' (2018) 43 nc j int'l l 204, 215. mailto:cd.umego@unizik.edu.ng mailto:vc.arinze@unizik.edu.ng mailto:ac.ewelukwa@unizik.edu.ng umego, arinze & ewelukwa: the international criminal court and its major actors: an analysis of their role towards attaining criminal justice 101 focus on african situations has resulted in a severed relationship between the court and african states. the succeeding subsections will then analyse the controversies of state cooperation as well as the court’s fractious relationship with african states. controversial issues bordering state cooperation the icc’s legitimacy has severally been questioned owing to the persistent crises the court has faced since its inception. this legitimacy debate reached its peak in 2014 when the prosecutor decided to drop its charges against kenyatta, the kenyan president.6 this was barely a week after the prosecutor decided to stop investigations into the situation in darfur, sudan. these two decisions by the prosecutor resulted from a lack of cooperation from the respective states.7 cooperation to the court among states varies significantly. states like uganda and central african republic (car) which referred the situations in their countries to the court have been seen to cooperate fully with the icc. sudan on the other hand failed to cooperate, while kenya and libya presented pseudo legal hurdles to cooperation.8 it is not surprising that the court failed to get the needed cooperation from sudan, libya and kenya. this is probably because the referral of these situations was not by the respective governments. the unsc referred the situation in sudan and libya to the court, while that of kenya was initiated by a proprio motu investigation. state cooperation is often lacking in cases where the referral process is external. given the lack of cooperation and hostile nature of governments in countries like kenya and sudan to the court, the icc in such situations is wholly dependent on local support.9 these local intermediaries often exert considerable influence over the court’s engagement.10 hillebrecht and straus argue that cooperation by state incumbents with the court is most likely to occur in cases where the incumbents and their political allies are not the alleged perpetrators.11 cooperation for these incumbents in situations where the defendants are their opponents, serves as a political lever to consolidate their authority.12 article 86 of the rome statute provides a general obligation for state parties to cooperate fully with the court in the latter’s investigations and prosecutions of serious crimes.13 the court may equally request for cooperation from state parties, non state parties and intergovernmental organisations.14 the icc lacks an enforcement system; it however relies on state cooperation to enforce its decisions. this presents a serious challenge for the court as oftentimes it is the same government that stands to be investigated that the court relies on for cooperation in a bid to achieve its mandate.15 kenyatta’s case exposed the shortcomings of the court through its dependence on states for cooperation. archangel and jon assert that in the light of kenyan government’s unwillingness to cooperate with the court, the icc is at a great disadvantage as it lacks the resources which are ordinarily available to a domestic prosecutor.16 the attorney general of kenya during the said case refused to hand over vital documents to the court.17 furthermore, the court’s request for vital information from the attorney general was left unanswered.18 where a state party’s non compliance to cooperate with the icc has prevented the court from exercising its functions, article 87(7) of the rome statute provides that the court may refer the matter to the asp or in cases of unsc referrals to the unsc.19 a finding of non compliance by the court does not always mean that the matter would be referred to the asp or unsc.20 this is because the statute confers on the court discretionary powers to make such referral through the use of the term ‘may’.21 banteka argues that the provision of article 87(7) of the rome statute denotes a set of corollary facts; first, the court lacks the power to compel state compliance for cooperation.22 secondly the icc rather takes an indirect route to sanction state parties through the asp or unsc, which is unlikely 6 alexandre skander galand, 'a global public goods perspective on the legitimacy of the international criminal court' (2017) 41 loy la int'l & comp l rev 125, 126. 7 ibid. 8 courtney hillebrecht and scott straus, ‘who pursues the perpetrators? state cooperation with the icc’ (2017) 39 human rights quarterly 162, 163. 9 leila ullrich, 'beyond the global-local divide: local intermediaries, victims and the justice contestations of the international criminal court' (2016) 14 j int'l crim just 543, 551. 10 ibid. 11 courtney hillebrecht and scott straus (n 8) 169. 12 ibid. 13 rome statute, art 86. 14 rome statute, art 87(1), (5) and (6). 15 vukile ezrom sibiya and michelle nel, ‘withdrawal from the international criminal court: biased against africa or weak towards the powerful’ (2017) 1 ajcr 6. 16 archangel b rukooko and jon silverman, ‘the international criminal court and africa: a fractious relationship assessed’ (2019) 9 ahrlj 85, 94. 17 ibid. 18ibid. 19 rome statute, art 87(7). 20 alexandre skander galand (n 6) 128. 21 ibid. 22 nadia banteka, 'mind the gap: a systematic approach to the international criminal court's arrest warrants enforcement problem' (2016) 49 cornell int'l lj 521. african customary and religious law review (acarelar) 4 (2023) 102 to produce concrete results.23 the case of al bashir is instructive on the difficulty faced by the court in getting the cooperation of states. the arrest warrant issued against al-bashir was transmitted to all the state parties of the rome statute, unsc members who were not state parties to the court as well as the sudanese government.24 one would reason that this meant that al-bashir could easily be arrested if he enters any of the territories issued with the arrest warrant.25 regrettably, states flagrantly failed to cooperate with the court in this regard. according to the otp’s report of 2016, since 2009 al-bashir had on 131 occasions crossed international borders to both state parties’ territories and that of non state parties.26 the icc through its ptc in 2017 reached a decision concerning south africa’s failure to arrest al-bashir when he went for the african union (au) summit in south africa.27 the ptc after ruling on south africa’s culpability was confronted with the issue of the relevant body (asp or unsc) to refer the matter to for necessary sanctions. this was necessary as it is in line with article 87(7) of the rome statute and also given the fact that the court lacked its own enforcement mechanism.28 as earlier discussed, the court has the discretionary powers to decide whether to refer a matter on non-cooperation to the asp or unsc as the case maybe. the ptc utilised its discretionary powers by not referring the matter to any of the relevant organs. the ptc deeply concerned with the extent of non cooperation from state parties in al-bashir’s case used the opportunity to criticise both the asp and unsc.29 according to the ptc, a referral to any of these organs would be futile because of the numerous occasions of inaction on their part with regard to effecting al-bashir’s arrest.30 the problem of non-cooperation by states is spurred by the fact that the organs (asp and unsc) which should sanction non compliance are not doing much to foster states’ obligation to cooperate with the court. judge cuno tarfusser highlighted this challenge during hearing of the djibouti’s non compliance matter.31 the judge reiterated the fact that the court relies on the cooperation of states to fulfil its mandate given that it lacks an enforcement mechanism.32 it is therefore imperative for the unsc after referring situations to the court to follow it up with the appropriate measures in the event of non cooperation from states.33 it is submitted that the icc’s criminal justice mandate is hindered by the failure of states to comply with their obligation to cooperate with the court. the asp and unsc which are the organs responsible for enforcing sanctions against non cooperating states should live up to expectations as the court is seen to be helpless in this situation owing to its lack of an enforcement system. court’s severed relationship with african states states in the african region were instrumental towards the creation of the court.34 significantly, they helped to secure the minimum number required for ratification of the rome statute thereby necessitating the operation of the icc.35 african states were initially enthusiastic and supportive of the icc. it was therefore not surprising that the first three investigations by the court were based on referrals from african states (uganda, drc and car).36 notwithstanding the initial support for the court from african states, there has been a growing concern and perception that the icc is biased towards africa because of its selectivity in prosecutions. this has resulted in a fractious relationship between the court and african states.37 the icc’s prosecutions overtime has been alluded as a form of race hunt by the african union.38 mills and bloomfield assert that different geopolitical pressures have facilitated the prosecutor’s investigations into african situations rather than other places thereby sending a bad signal for the court.39 yigzaw 23 ibid. 24 dapo akande, ‘the legal nature of security council referrals to the icc and its impact on al bashir's immunities’ (2009) 7 j int'l crim just 333. 25 alexander skander galand (n 6) 130. 26 icc office of the prosecutor, statement of icc prosecutor, fatou bensouda, before the united nations security council on the situation in darfur, pursuant to unscr 1593 (2005), 13 (dec. 13, 2016) 27 prosecutor v al bashir [2017] icc ptc (icc-02/05-01/09-302), decision under article 87(7) of the rome statute on the noncompliance by south africa with the request by the court for the arrest and surrender of omar al-bashir. 28 international criminal court, ‘understanding the international criminal court’ (international criminal court, 2020) https://www.icc-cpi.int/iccdocs/pids/publications/uicceng.pdf accessed 10 july 2022. 29 prosecutor v al bashir, (n 27). 30 ibid 31 rebecca a shoot, 'navigating between scylla and charybdis: how the international criminal court turned restraint into power play' (2018) 33 emory int'l l rev 133, 152. 32 ibid. 33 ibid. 34 benedict abrahamson chigara and chidebe matthew nwankwo, ‘to be or not to be? the african union and its member states parties' participation as high contracting states parties to the rome statute of the international criminal court (1998)’ (2015) 33 (3) nordic journal of human rights 243, 253. 35 ibid; the rome statute under article 126 required 60 states to ratify it in order to take effect from 1 july 2002. africa was responsible for 17 ratifications out of the 60 required. 36 line engbo gissel, ‘a different kind of court: africa’s support for the international criminal court, 1993–2003’ (2018) 29(3) ejil 725, 727. 37 ibid, 725. 38 kurt mills and alan bloomfield, ‘african resistance to the international criminal court: halting the advance of the antiimpunity norm’ (2018) 44(1) review of international studies 101. 39 ibid. https://www.icc-cpi.int/iccdocs/pids/publications/uicceng.pdf umego, arinze & ewelukwa: the international criminal court and its major actors: an analysis of their role towards attaining criminal justice 103 refers the icc as a european court set to try only africans with all its indicted persons hailing from africa.40 according to him, the only sitting heads of state (uhuru kenyatta and omar al-bashir) ever indicted by the court were from africa.41 furthermore, two out of the three proprio motu investigations (cote d’ivoire and kenya) initiated by the prosecutor were from africa as well as the only two unsc referrals (sudan and libya).42 it actually took the court through its prosecutor 14 years to open up investigations outside africa, which is the georgian situation.43 african state parties to the court since 2009 have continually acted in ways that has hindered the icc’s criminal justice mandate.44 they failed to give the court the needed cooperation in the latter’s cases against heads of state in sudan and libya.45 they flagrantly disobeyed the court orders while hosting wanted perpetrators, threatening to collectively withdraw from the court and voting indicted individuals into state offices.46 the legitimacy of the court was greatly challenged following the threats of withdrawal by south africa, gambia and burundi in 2016, although only burundi finally withdrew from the court.47 the relationship between the icc and african states was greatly severed following the indictment of the sudanese president and subsequently the kenyan and libyan governments. arguments have been made that the court’s involvement in these three situations aside being biased has equally undermined the peace processes put in place to reconcile the divided states.48 consequently, the au during one of its meetings recommended that the icc’s prosecutor’s policy be revised to include factors promoting peace as one of the considerations for selecting a case.49 the au equally criticised the double standard of the unsc’s move in referring situations involving two non state parties (sudan and libya) to the rome statute.50 this was predicated on the fact that some members of the unsc such as china, russia and the us were not signatories to the rome statute but still had powers to refer situations involving non state parties to the court. furthermore, african states saw the court’s intervention in prosecuting heads of two non state parties as a breach of the customary head of state immunity.51 counter arguments have been presented challenging the icc-african biased narrative. vilmer argues that the african situations before the court meet the gravity requirement unlike non-african situations such as iraq and venezuela.52 these african situations were characterised by large number of victims ranging from 1.3 million in uganda, 2 million in drc to 2.5 million in darfur-sudan.53 vilmer further states that it is african governments that are biased against africans rather than the court given that the au only criticised the icc when it intervened in situations that involved african senior state officials.54 the au never challenged the authority of the court when it had the likes of dyilo, katanga, bemba and ngudjolo in the court’s custody.55 the court’s focus on african states is also as a result of the large number of state parties to the rome statute from the african continent.56 it is argued that the court relies on the principle of complementarity to try these african situations given the unwillingness of the concerned states to try them nationally. it was in the light of this complementary principle that the former un secretary-general, kofi anan defended the icc by stating that africans should seek justice from the court if they cannot get it domestically.57 anan further stated that the court was not biased against africans and that ordinary africans were satisfied with the court as they wanted their leaders to be held 40 destaw a yigzaw, (n 5) 205. 41 ibid. 42 ibid. 43 ibid. 44 line engbo gissel, (n 36) 725. 45 jean-baptiste jeangène vilmer, ‘the african union and the international criminal court: counteracting the crisis’ (2016) 92(6) international affairs 1319. 46 ibid. 47 line engbo gissel, (n 36) 726. 48line engbo gissel, (n 36) ibid. 49 ibid. 50 ibid, 728. 51 au assembly, decision on the progress report of the commission on the implementation of the assembly decisions on the international criminal court, doc. assembly/au/dec.397/xviii (29–30 january 2012). 52 jean-baptiste jeangène vilmer (n 45) 1328. 53 rebecca davis, ‘analysis: is the international criminal court biased against africa?’ daily maverick (johannesburg, 19 june 2015). 54 jean-baptiste jeangene vilmer, (n 45) 1336. 55 ibid 56 ibid, 1329. 57 david pilling, ‘kofi annan defends international criminal court despite africa row’ the financial times limited (london, 16 june 2016). african customary and religious law review (acarelar) 4 (2023) 104 accountable.58 majority of kenyans were happy with the court following the indictment of senior kenyan officials for post election violence.59 this study submits that the fractious relationship between the court and african states affects the former’s criminal justice mandate. the icc’s legitimacy is threatened by the activities of african states. this was seen through the latter’s acts of non cooperation, criticisms and threats of withdrawal from the court. interestingly, the court probably as a result of the numerous criticisms on its exclusive focus on africa has started investigating serious crimes in nonafrican states. the current chief prosecutor of the court, fatou bensouda, in a bid to change the narrative has launched investigations into situations involving the activities of powerful states like the us, uk and russia.60 this action of the prosecutor promises to change the severed relationship between the icc and african states. prosecutorial dynamics affecting the office of the prosecutor the office of the prosecutor (otp) is an independent organ of the court responsible for receiving referrals, examining cases, conducting investigations and prosecutions.61 the rome statute mandates members of the otp not to seek or rely on information from external sources.62 the prosecutor of the court is unique basically because of the global and permanent nature of the icc.63 unlike the ad hoc tribunals of rwanda and yugoslavia, the exact parameters of the icc prosecutor’s power are not defined by statute.64 the rome statute permits the prosecutor to exercise considerable discretion in selecting situations and cases to be tried by the court.65 the otp taking into account the court’s jurisdictional limits to most serious international crimes and its limited resources employs this broad discretion in selecting cases to prosecute.66 ambos and stegmille argue that the case selection and prioritisation by the otp while necessary given the capacity constraints of the icc may affect the court’s credibility if it is not done in a rational and transparent manner.67 the otp in a bid to regulate this prosecutorial discretion has occasionally developed policy and strategy papers over the years. this has subsequently resulted to a situation where the case selection and investigation process of the otp is dynamic. whiting, a former investigation and prosecution coordinator of the otp, asserts that the dynamic nature of the investigations by the otp is necessary to bring it at par with the ever changing positions of the global community, witnesses and suspects.68 the otp’s current practice of producing prosecutorial strategies over a time frame of approximately 3 years appears to be contrary to regulation 14(1) of the otp regulation.69 ambos and stegmille assert that the said provision envisages the otp to produce its prosecution strategy in one coherent master document.70 it is on the basis of the said master document that the otp can develop further prosecutorial policies periodically.71 this research agrees with this view as it would help to prevent a situation where the otp derails from its powers or even possibly abuse such powers in the absence of a ground document. the otp’s prosecutorial discretion has been a thorny issue since the emergence of the rome statute.72 it has been erstwhile argued that wide discretionary powers of the otp may result in politicisation or even abuse of power.73 benyera asserts that the prosecution record of the court in fact reveals the need to strike a balance between law and 58 ibid. 59 samuel okpe okpe, ‘anti-impunity norm of the international criminal court: a curse or blessing for africa?’ (2020) journal of asian and african studies 1, 12. 60 jonathan stevenson (ed), ‘africa and the international criminal court, strategic comments’ (2016) 22(10) international institute of strategic studies 1, 2. 61 rome statute, art 42(1). 62 ibid. 63 lovisa badagard and mark klamberg, 'the gatekeeper of the icc: prosecutorial strategies for selecting situations and cases at the international criminal court' (2017) 48 geo j int'l l 639, 648. 64 ibid, 649. 65 ibid, 642. 66 alette smeulers, marrtje weerdesteijin and barbora hola, 'the selection of situations by the icc: an empirically based evaluation of the otp's performance' (2015) 15 int'l crim l rev 1, 3. 67 kai ambos and ignaz stegmille, ‘prosecuting international crimes at the international criminal court: is there a coherent and comprehensive prosecution strategy?’ (2012) 58 crime law soc change 391, 392. 68 alex whiting, ‘dynamic investigative practice at the international criminal court’ (2013) 76 dui j l & contemp probs 163. 69 regulations of the office of the prosecutor (23 april 2009) icc-bd/05-01-09, reg 14(1). 70 kai ambos and ignaz stegmille (n 67) 393. 71 kai ambos and ignaz stegmille (n 67) 394. 72 james a goldston, ‘more candour about criteria: the exercise of discretion by the prosecutor of the international criminal court’ (2010) 8 j int'l crim just 383 (as cited in lovisa badagard and mark klamberg, 'the gatekeeper of the icc: prosecutorial strategies for selecting situations and cases at the international criminal court' (2017) 48 geo j int'l l 639, 642). 73 william a schabas, ‘victor's justice: selecting situations at the international criminal court’ (2010) 43 j marshall l rev 535, 549-550. umego, arinze & ewelukwa: the international criminal court and its major actors: an analysis of their role towards attaining criminal justice 105 politics in its case selection.74 advocates of the icc however insist that the apolitical nature of the otp is relevant for the credibility of the court.75 the following subsections will examine the practice of the otp in its case selection and investigations. this is in a bid to find out if the otp is indeed apolitical and has aided towards achieving the criminal justice mandate of the icc. case selection and prioritisation the otp through its policy paper on case selection and prioritisation emphasises the underlying principles of objectivity, independence and impartiality in its case selection process.76 independence according to this policy paper extends beyond not relying on information from external sources but also to the decisions of the otp not being influenced by external actors.77 impartiality denotes that the otp will employ consistent criteria in its assessment irrespective of the persons or states involved.78 objectivity means that the otp will only pursue a case if the evidence available to the office can justify a case selection.79 regarding this last principle, benyera argue that because the otp will only select a case when there is enough evidence to warrant a successful investigation, there is a likelihood of the otp pursuing only cases where state parties or other external actors have already gathered substantial evidence.80 this reliance on third parties for the sensitive role of collection of evidence hinders the icc’s effectiveness especially when it is done by those interested in the case as was seen in kenyatta’s case.81 it is argued that the otp cannot function effectively without the cooperation of these external sources owing to the court’s lack of an enforcement mechanism. the otp however has to be true to the underlying principles governing its case selection by making sure that any information or evidence received from external sources are independently and objectively assessed. the case selection criteria of the otp are based on gravity of the crime, potential charges and degree of responsibility of the suspects.82 the last criterion will form the focus of study under this subsection. through this criterion the otp tends to ensure that charges are brought only against persons alleged to be most responsible for the crime in issue.83 thereby narrowing its scope to mid and high level perpetrators and will only pursue low level perpetrators if their involvement has been grave.84 the otp’s strategic choice of targeting high ranking perpetrators is related to its aim to separate politics from law thereby appearing as an independent umpire. in practice, this aim is difficult to achieve following the obstruction by these high level perpetrators as was seen in the case of al bashir and kenyatta already discussed under 1.2. nevertheless, the otp should never be seen to yield to such oppositions and politics surrounding these top power players. the otp in persisting with these high level cases “promotes an uncompromising form of justice, setting a pedagogical example and challenging impunity even for the most powerful”.85 badagard and klamberg argue that the icc will attain a high degree of effectiveness if the otp focuses on low level cases which have a higher probability of success.86 they however state that the selectivity of cases involving high ranking perpetrators is necessary in a bid for the otp to effectively work within its limited time and resources.87 this study argues that though it is difficult to try high level perpetrators especially senior state officials as it is often shrouded in controversies and non cooperation from states. however, these high level perpetrators are primarily the reason why the icc was created as they tend to manoeuvre national prosecutions. the low level perpetrators through the principle of complementarity can be effectively tried at the national level while the otp effectively prosecutes these high level suspects at the icc despite the challenges it may present. therefore, it is submitted that the otp policy and practice of selecting cases involving mid to high level perpetrators conforms to the court’s criminal justice mandate. the otp under the present leadership of fatou bensouda has shown great courage in pursuing tough and high profile cases.88 this was seen in the afghanistan situation involving us military personnel as well the iraq 74 everisto benyera, ‘on the complexities of prosecuting robert mugabe at the international criminal court’ (2017) 6(12) austral: brazilian journal of strategy & international relations 104, 108. 75 james a goldston, (n 72) 387. 76 international criminal court office of the prosecutor, policy paper on case selection and prioritisation (15 september 2016) para 16. 77 ibid, para 17. 78 ibid, para 19. 79 ibid, para 21. 80 everisto benyera, (n 74) 109. 81 ibid, 110. 82 international criminal court office of the prosecutor, policy paper on case selection and prioritisation (15 september 2016), para 34. 83 regulations of the office of the prosecutor, reg 34(1); international criminal court office of the prosecutor strategic plan 2016-2018 (16 november 2015) para.34. 84 international criminal court office of the prosecutor, policy paper on case selection and prioritisation (15 september 2016) para 42. 85 lovisa badagard and mark klamberg, (n 63) 706. 86 ibid. 87 ibid, 730. 88 human rights watch, ‘world: office of the prosecutor, international criminal court, strategic plan, 2019-2021 comments of human rights watch’ asia news monitor (bangkok, 15 november 2019) 2. african customary and religious law review (acarelar) 4 (2023) 106 situation involving uk nationals. this current practice by the otp has helped to dispel the narrative of the court being a tool for the powerful states. the otp by adhering to its policy on case selection in pursuing states on an equal and fair ground has aided the icc in dispensing justice effectively. investigations by the prosecutor the prosecutor of the icc has the duty of conducting investigations of alleged crimes irrespective of the mode of referral. the prosecutor first makes an assessment to determine if there is a reasonable basis to initiate an investigation and goes ahead with same if his findings show a need for an investigation.89 this subsection is concerned with the actual practice of the otp’s investigation to see if it is in tune with the icc’s justice mandate. first, one of the guiding principles of the otp practice, ‘focused investigations’ has been criticised.90 the otp through focused investigations limits its scope on few incidents and witnesses. foster asserts that the otp’s inadequate investigative mechanism as well as its reliance on state cooperation which is oftentimes lacking, affects its ability in relying on this strategy in investigations.91 additionally, it is risky for the otp to rely on few witnesses for its investigations as there are cases which ordinarily cannot be sustained by a handful of witnesses.92 it is argued that it may seem right to the otp to adopt this mechanism in a bid to achieve effective investigations. however, the otp should be aware that situations involving large scale crimes and large number of victims will warrant the flexibility of this focused approach. secondly, smeulers et al relying on the information published by the uppsala conflict data program (ucdp) assert that the otp has commenced investigations in five situations (car, uganda, kenya, mali and libya) which are not among the eight gravest situations established by their list.93 the otp’s investigation in car has been justified because it qualifies as grave going by the otp’s criteria and also because car features in the list of ten gravest situations involving state parties.94 unfortunately, the kenyan situation cannot be justified as it does not even feature among the top twenty gravest situations over a ten year period.95 the kenyan situation only reflected in the top ten lists in 2008.96 this was as a result of the post election violence which killed about 1300 persons and displaced 35,000.97 the kenyan situation could at best be argued to have an impact domestically.98 the decision of the otp to commence investigations in kenya has been the most criticised.99 this was done despite the mediation process that was already put in place by the african union over the situation.100 furthermore, the otp practice in conducting investigations has been criticised to be discriminatory and selective of persons to prosecute especially in situations of internal conflict.101 it has been erstwhile argued that in most of the african state-referred situations, the otp focuses on one party to the conflict thereby exempting the other party.102 phooko asserts that the government forces and officials in uganda and drc who were parties to the atrocities in those situations were not investigated by the otp.103 this practice by the otp renders the principle of equality irrespective of official positions provided under article 27 of the rome statute irrelevant.104 it is submitted that this issue is apparent in situations where the sitting government is the other party to the conflict and the otp has to rely on such government’s cooperation for its investigation. the otp’s investigations in such circumstances will be greatly compromised to the detriment of the icc’s effective justice delivery. finally, the otp has also been criticised for its decision to stop investigations into the iraq situation in 2006 on the basis that the victims of the british forces were not much when compared to other cases.105 by doing so, the otp prioritised the number of victims over the fact that crimes of aggression were actually committed in iraq.106 this decision raises question regarding whether the otp’s gravity assessment at that stage of preliminary 89 rome statute, art 53. 90 kai ambos and ignaz stegmille, (n 67) 394. 91 jacob n foster, 'a situational approach to prosecutorial strategy at the international criminal court' (2016) 47 geo j int'l l 439, 491. 92 ibid, 492. 93 alette smeulers, marrtje weerdesteijin and barbora hola (n 66) 28. 94 ibid, 31. 95 ibid. 96 ibid. 97 stephen brown and chandra lekham sriram, 'the big fish won’t fry themselves: criminal accountability for postelection violence in kenya’ (2012) 111(443) african affairs 244, 248. 98 ibid. 99 alette smeulers, marrtje weerdesteijin and barbora hola (n 66) 32. 100 monica kathina juma, 'african mediation of the kenya post-2007 election crisis’ (2009) 27(3) journal of contemporary african studies 407. 101 lydia nkansah, 'international criminal justice in africa: some emerging dynamics’ (2011) 4(2) jpl 74, 77. 102 ibid. 103 moses phooko, 'how effective the international criminal court has been: evaluating the work and progress of the international criminal court’ (2011) ndjichrl 182, 189-190 (as cited in celestine nchekwube ezennia, 'the modus operandi of the international criminal court system: an impartial or a selective justice regime' (2016) 16 int'l crim l rev 448, 462). 104 ibid. 105 alette smeulers, marrtje weerdesteijin and barbora hola (n 66)26. 106 margaret m deguzman, 'choosing to prosecute: expressive selection at the icc', (2012) 33 michigan journal of international law 1461 (as cited in alette smeulers, marrtje weerdesteijin and barbora hola, 'the selection of situations by the icc: an empirically based evaluation of the otp's performance' (2015) 15 int'l crim l rev 1, 26). umego, arinze & ewelukwa: the international criminal court and its major actors: an analysis of their role towards attaining criminal justice 107 investigation should focus on the situation in iraq as a whole or solely the individual cases for which the court can exercise jurisdiction (the crimes involving the british forces in iraq).107 schabas asserts that the otp’s reluctance to pursue the iraq situation could be politically motivated.108 he further argues that the otp’s justification for stopping investigations based on the gravity criteria is merely a contrived effort to make its decisions appear lawful and objective.109 these speculations of double standards and political motives mar the legitimacy of the otp.110 it is pertinent to state that the otp in 2014, under the leadership of fatou bensouda decided to reopen preliminary investigations into the iraq situation on the ground of new information that was made available to the court.111 this is commendable and the otp should dispel criticisms surrounding its practice by objectively and independently investigating and possibly prosecuting the british forces responsible in that situation. 4. an assessment of the role of the united nations security council in the court the unsc plays a significant role with respect to the jurisdictional parameters of the court. this is evident through the former’s power to refer situations to the court as well as its powers to defer investigations.112 consequently, the unsc acts as a trigger institution by promoting investigations through referrals and also as a gatekeeper institution by stopping investigations in the interests of peace and security through its deferral powers.113 it is pertinent to note the important role exercised by the unsc in extending the jurisdiction of the icc to non state parties to the rome statute. this has been considered as a huge achievement towards attaining universal justice for the court.114 aloisi argues that some of the crimes of international concern would have gone unpunished in the absence of a unsc referral.115 there are bound to be conflicts between the unsc and the icc in the performance of the former’s role to the court. given that these two institutions have divergent mandates; the unsc is a political organisation charged with the maintenance of international peace and security.116 on the other hand, the icc is a judicial institution responsible for prosecuting most heinous crimes of international concern with an aim to ending impunity. the relationship between the court and the unsc is marked by tensions between politics and law. kyle asserts that the difference in the mandates of these two institutions does not mean that conflicts are bound to arise in every case they act together.117 the rome statute’s preamble by recognising the fact that serious crimes threaten the security and peace of the global community aligns itself with the goal of the unsc.118 roach argues that the court’s interest in punishing perpetrators and the unsc’s interest in maintaining peace will often pull apart.119 it is not surprising that the marriage between the icc and the unsc has generated a lot of criticisms and controversies over the years given the divergence in the goals of these two institutions. the greatest weakness of the court has been attributed to its dependency on the unsc and the latter has not been committed towards holding individuals accountable for serious crimes.120 this dependency is dangerous for the court as it is subjected to the caprices of the global politics in the unsc whereby it would be difficult to hold accountable the permanent members of the council or their allies.121 louise arbour, a former chief prosecutor of the icty and ictr aptly captures the problem with the court’s reliance on the unsc, according to him: the increasing entanglement of justice and politics is unlikely to be good for justice in the long run. to make criminal pursuits subservient to political interests, activating and withdrawing cases as political imperatives dictate, is unlikely to serve the interest of the icc which must above all establish its credibility and legitimacy as a professional and impartial substitute for deficient 107 margaret m deguzman and william a schabas, 'initiation of investigation and selection of cases’ in goran sluiter et al (eds), towards codification of general rules and principles of international criminal procedure (1st edn, oxford university press 2012) 131-192. 108 william a schabas, (n 73) 548-549. 109 ibid, 549. 110 lovisa badagard and mark klamberg, (n 63) 715. 111 international criminal court, ‘preliminary examination: iraq/uk’ (international criminal court, 2020) https://www.icccpi.int/iraq accessed 20 july 2022. 112 rome statute, arts 13(b) and 16. 113 rosa aloisi, 'a tale of two institutions: the united nations security council and the international criminal court' (2013) 13 int'l crim l rev 147, 150. 114 ibid, 159 115 ibid. 116 jess kyle, 'the new legal reality: peace, punishment, and security council referrals to the icc' (2015) 25 transnat'l l & contemp probs 109, 121. 117 ibid, 122. 118 ibid. 119 steven c roach, ‘the turbulent politics of the international criminal court’ (2011) 23 peace rev 516, 519 (as cited in jess kyle, 'the new legal reality: peace, punishment, and security council referrals to the icc' (2015) 25 transnat'l l & contemp probs 109, 123). 120 ibid 121 john‑mark iyi, ‘re‑thinking the authority of the un security council to refer nationals of non-party states to the icc’ (2019) 66 netherlands international law review 391, 396. https://www.icc-cpi.int/iraq https://www.icc-cpi.int/iraq african customary and religious law review (acarelar) 4 (2023) 108 national systems of accountability. i’m not sure that partnership with the security council is the best way to attain these objectives.122 the icc through the president of the asp has refuted this dependency narrative by stating that the court is autonomous from the unsc.123 furthermore, once a unsc referral has been made to the court, the icc is not influenced by any external actor including the unsc in its investigations and prosecutions.124 the unsc has only made two referrals (sudan and libya) to the icc since the inception of the court. the geographical locations of these referrals have given rise to criticisms of the unsc’s selectivity and focus on weak african nations.125 questions have been asked why the unsc has neglected referring conflict ridden situations in places like syria, gaza, iraq, sri lanka, yemen, among others.126 it is against the background of these criticisms that the succeeding subsections will examine the referral practice adopted by the unsc to find out if same aligns with the court’s criminal justice mandate. challenges of the referral practice adopted by the security council the unsc has exercised its referral powers only twice over african based situations of serious crimes.127 it has been argued that the unsc was quick to refer the african situations involving sudan and libya to the court leaving out other non-african situations where crimes of similar grave nature were committed.128 the situation in iraq justifies this selective approach of the unsc. iraq just like sudan and libya is not a party to the rome statute and can only have the court intervene if a referral is made by the unsc under article 13(b) of the rome statute. smeulers et al argue that iraq represents one of the gravest situations globally over a long period of time and that a unsc referral is unlikely to happen given the political nature of the unsc.129 this non referral is further aggravated by the permanent members of the unsc who have their varying national interests at stake in the iraq situation.130 the failure of the unsc to apply its referral powers fairly and equally compromises its role in the icc’s justice mandate.131 the unsc has failed to follow up its referrals to the court thereby not giving the court the needed support. the two referrals from the unsc of the situations in sudan and libya merely contain obligation to cooperate with the court by the states being referred.132 this practice by the unsc is problematic as it limits cooperation to the states referred.133 it is therefore not surprising that none of the arrest warrants issued against the sudanese officials by the court has been given effect till date.134 despite the otp’s biannual reports to the unsc on the progress of situations, the unsc still does not provide any commitment to ensure that prosecutions and investigations are effectively carried out.135 the icc even went further to give the unsc reports of non-cooperation arising out of the sudan referral but the unsc failed to take any action in that regard.136 the libyan situation before the court further exemplifies the unsc’s reluctance to assist the icc. the court in that case encountered great difficulties in its investigations (accessing the crime scenes, gathering evidence and speaking to indicted persons) but the unsc failed to lend any support whatsoever, “remaining mostly silent on the consequences its referral is having on the implementation of justice”.137 the icc’s ptc reacting to the failure of the unsc to follow up its referrals stated that: when the security council, acting under chapter vii of the un charter, refers a situation to the court as constituting a threat to international peace and security, it is expected that the council would respond by way of taking such measures which are considered appropriate, if there is an apparent failure on the part of the relevant state party to the statute to cooperate in fulfilling the court’s mandate entrusted to it by the council. otherwise, if there is no follow up action on the 122 louise arbour, ‘the rise and fall of international human rights’ sir joseph hotung international human rights lecture (british museum london, april 27, 2011). 123 international criminal court: office of the president, ‘icc underlines impartiality, reiterates commitment to cooperation with the african union’ (may 29, 2013) (as cited in alana tiemessen, ‘the international criminal court and the politics of prosecutions’ (2014) 4 the international journal of human rights 444, 454). 124 ibid. 125 victor o ayeni and matthew a olong, 'opportunities and challenges to the un security council referral under the rome statute of the international criminal court' (2017) 25 afr j int'l & comp l 239, 250. 126 ibid. 127 evelyne owiye asaala, ‘rule of law or realpolitik? the role of the united nations security council in the international criminal court processes in africa’ (2017) 17 african human rights law journal 265, 268. 128 ibid, 269. 129 alette smeulers and marrtje weerdesteijin and barbora hola, (n 66) 26. 130 ibid. 131 evelyne owiye asaala (n 127) 270. 132 unsc, ‘reports of the secretary-general on the sudan’ (2005) un doc s/res/1593; unsc, ‘peace and security in africa’ (2011) un doc s/res/1970. 133 jennifer trahan, ‘the relationship between the international criminal court and the u.n. security council: parameters and best practices’ (2013) 24 criminal law forum 417, 462. 134 jennifer trahan, (n 133). 135 ibid, 465. 136 victor o ayeni and matthew a olong, (n 125) 254. 137 rosa aloisi, (n 113) 155. umego, arinze & ewelukwa: the international criminal court and its major actors: an analysis of their role towards attaining criminal justice 109 part of the security council, any referral by the council to the icc under chapter vii would never achieve its ultimate goal, namely, to put an end to impunity. accordingly, any such referral would become futile.138 it is quite regrettable that the unsc has failed to give the icc the needed support the latter needs to achieve its mandate of ending impunity. it is pertinent to point out the difference in practice adopted by the unsc in the two ad hoc tribunals (icty and ictr) and the icc. contrary to its practice in the icc, the unsc imposed a general obligation to cooperate on all united nation (un) member states in the statute establishing the ad hoc tribunals.139 this consequently facilitated the execution of arrest warrants on all indicted persons in the cases before the tribunals.140 furthermore, the unsc has failed to provide any fund to the icc to facilitate the latter’s investigations and prosecutions arising out of a unsc referral.141 article 115 of the rome statute provides for three sources of funding for the court among which is the funds provided by the un in connection to the court’s expenses on issues arising out of a unsc referral.142 regrettably, the unsc in its two referrals involving sudan and libya expressly stated that the un shall not bear any of the expenses incurred as a result of the referrals.143 ayeni and olong argue that this was a compromise that had to be reached in a bid for the us which wields a veto power to approve these referrals.144 this approach adopted by the unsc conflicts with article 115 of the rome statute as already highlighted and also the un charter. under the un charter, budgetary matters are to be exclusively overseen by the un general assembly and not the unsc.145 this study submits that the controversies surrounding the unsc referral practice such as its selectivity, lack of support and funding to follow up referrals are as a result of the political nature of the unsc. the unsc in its decisions concerning referrals is seen as trying to balance its political mandate and the court’s judicial mandate. the result most often tilts in favour of securing the unsc’s mandate to the detriment of the court’s goal of ending impunity. aloisi aptly captures the consequence of the relationship between the two institutions by stating that “the unsc has come at a high cost for the legitimacy and functioning of international justice”.146 it is argued that progress by the unsc in aiding the icc’s criminal justice delivery has been considerably slow going by its two referrals since the inception of the court. furthermore, the criticisms surrounding these two referrals already discussed in preceding paragraphs of this subsection points to the fact that the unsc has done more harm than good to the icc. veto power as an instrument hindering the court’s mandate the aftermath of the second world war led china, france, uk, us and the russian federation (the big five) to constitute themselves into permanent members of the unsc while conferring upon them the veto power.147 the veto power is a major distinguishing factor between the permanent and non permanent members of the unsc. article 27(3) of the un charter provides that all the substantive decisions of the unsc shall be made with the affirmative votes of the permanent members.148 this veto power which has been used 293 times has continuously been the subject of criticisms even among the un as the ‘big five’ have utilised it for their national interests.149 ayeni and olong argue that the veto power of the big five is a potential impediment to the unsc’s referrals to the court thereby affecting the latter’s legitimacy.150 it is not surprising that the unsc was quick to refer the situation in libya but has stalled to refer the yemeni, bahraini and syrian situations.151 the big five exercise this veto power depending on their political affiliations and interests thereby undermining the icc’s mandate. the syrian situation is a typical example where two of these permanent members (china and russia) vetoed the unsc’s resolution that would have referred 138 prosecutor v. omar hassan ahmad al bashir [2013] icc ptc (icc02/05-01/09) para 22, decision on the non compliance of the republic of chad with the cooperation requests issued by the court regarding the arrest and surrender of omar hassan ahmad al-bashir. 139 rosa aloisi, (n 113) 153. 140 ibid. 141 victor o ayeni and matthew a olong (n 125) 255. 142 rome statute, art 115(b). 143 unsc, ‘reports of the secretary-general on the sudan’ (2005) un doc s/res/1593, para 7; unsc, ‘peace and security in africa’ (2011) un doc s/res/1970, para 8. 144 victor o ayeni and matthew a olong, (n 125) 255. 145 united nations, charter of the united nations (24 october 1945) 1 unts xvi, art 17. 146 rosa aloisi (n 113) 149. 147 evelyne owiye asaala (n 127) 267. 148 un charter, art 27(3). 149 un security council working group, ‘the veto’ (security council report, 7 march 2020) https://www.securitycouncilreport.org/un-security-council-working-methods/the-veto.php accessed 27 july 2022. 150 victor o ayeni and matthew a olong (n 125) 258. 151 ibid. https://www.securitycouncilreport.org/un-security-council-working-methods/the-veto.php african customary and religious law review (acarelar) 4 (2023) 110 the situation in syria to the court.152 it is quite unfortunate that some permanent members of the unsc will stop a referral involving one of the gravest serious crime situations. aloisi argues that the presence of russia and china among the big five has further made it difficult for the court to get the needed unsc’s support following the latter’s referral of the sudan situation.153 these two countries have always affirmed their position of non-interference in the affairs bordering other nations partly on the basis of state sovereignty and their concerns over possible external interference in their affairs.154 this presents a serious cause for concern as there will be a possibility of these two nations or even any of the big five stopping a unsc resolution that is seeking to provide state cooperation to the court. furthermore, the unsc’s relationship with the icc is fundamentally problematic because three of its five permanent members are not parties to the rome statute but can still intervene in issues concerning the court.155 consequently, it is not realistic for the court to try the nationals of these three states (us, china and russia) or even their allies.156 it is submitted that it can only be logical if the unsc-icc related powers are to be exercised by state parties to the rome statute who are members of the unsc. this will prevent a situation where outsiders (non state parties) are seen to decide the fate of their fellow outsiders. 5. conclusion and recommendations this research set out to examine the activities of the icc’s major actors in a bid to assess their role in aiding the court in ending global impunity. the practice of the state parties to the rome statute, the otp and the unsc formed the focus of study in this work. given the icc’s lack of an enforcement mechanism, it relies heavily on state cooperation to function effectively. regrettably, this study reveals the unwillingness of states to cooperate with the court especially in politicised cases thereby hindering the latter’s goal of ending impunity. african states which constitute a major fraction of signatories to the rome statute have been found to be at loggerheads with the icc because of the latter’s purported selectivity of african situations. this fractious relationship from the findings of this study has been shown to continuously threaten the court’s legitimacy. the otp which is an independent organ of the court was found to align its case selection and prioritisation criteria in line with the court’s mandate. regrettably, the otp’s practice in its investigations reveals a politicised and discriminatory approach. the investigations by the otp into the kenyan situation have been criticised till date as it does not fall within the gravest situations. the otp through its current practice of investigating situations involving personnel of powerful countries such as the us and uk has presented itself as an unbiased umpire which is willing to execute its functions independently. the analysis under 1.4 reveals the politicisation of the unsc’s referral practice to the detriment of the judicial mandate of the icc. the unsc was found wanting in providing cooperation obligations as well as funding to the court to follow up its referral. the veto power which is wielded by the five permanent members of the unsc further worsens the court’s relationship with the unsc. this veto power is merely a political tool used to serve the national interests of the big five and it hinders the court’s criminal justice mandate as was seen in the failed unsc syrian referral. in sum, this research provided a comprehensive insight into the controversies and challenges bordering the court. it is therefore argued that most of the criticisms directed at the court are as a result of the practice of its major actors. according to the current icc president, judge chile eboe-osuji, there will continually be a need for reforms within the court system just like every other institution in a bid to improve its ability to attain its mandate with greater efficiency and purpose.157 it is on the basis on this need for reforms within the court structure that this research will proffer the following recommendations: • it is long overdue for the court to establish its enforcement system. this will help curb the problem of the court’s total reliance on state parties and the unsc. it will further foster states’ obligation to cooperate with the court given that the icc can directly sanction any non-compliant state. • policies should be put in place to curtail the wide discretionary powers of the otp. this will help curb the problem of abuse of power or even one sided investigations and prosecutions by the otp. • the rome statute should be revised to the effect that members of the unsc who are not signatories to the statute should not exercise any power over the activities of the court. furthermore, the rome statute should make the veto power of the unsc inoperative in the affairs of the icc. 152 security council, ‘referral of syria to international criminal court fails as negative votes prevent security council from adopting draft resolution’ (united nations meetings, coverage and press releases, 22 may 2014) <https://www.un.org/press/en/2014/sc11407.doc.htm > accessed on 27 july 2022. 153 rosa aloisi, (n 113) 157-158. 154 ibid, 158. 155 jonathan stevenson (ed), (n 60). 156 destaw a yigzaw, (n 5) 220. 157 chile eboe-osuji, ‘remarks at solemn hearing in commemoration of the 20th anniversary of the rome statute of the international criminal court’ (international criminal court, 17 july, 2018) https://www.icccpi.int/itemsdocuments/20180717-pres-speech.pdf accessed 3 august, 2022. https://www.un.org/press/en/2014/sc11407.doc.htm https://www.icc-cpi.int/itemsdocuments/20180717-pres-speech.pdf https://www.icc-cpi.int/itemsdocuments/20180717-pres-speech.pdf 