PUBLIC DEFENCE AND THE ADVANCEMENT OF HUMAN RIGHTS: SOME CASE STUDIES FROM LAGOS OFFICE OF THE PUBLIC DEFENDER (OPD) (Published in B. Owasanoye & A. Atsenuwa (Eds.), Public Defence in a Developing Country: Looking Behind and Beyond, (Lagos: Lagos OPD & NIALS, 2010), pp. 105-142).

 

By

Ani Comfort Chinyere Ph.D.*

 

 

 

Introduction

Access to legal representation is a crucial feature of access to justice, due process and fair hearing. It is a fact that vast majority of people affected by the criminal and civil justice systems are poor and have no resources with which to protect their rights. It is also acknowledged that many thousands of suspects and prisoners are detained for lengthy periods of time in overcrowded police cells and in inhumane conditions in over-crowded prisons. It is also accurate to say that prolonged incarceration of suspects and prisoners without providing access to legal aid or to the courts violates basic principles of international law and human rights. Legal aid to suspects and prisoners has the potential to reduce the length of time suspects are held in police stations; diminish congestion in the courts, and prison populations, thereby improving conditions of confinement and reducing the costs of criminal justice administration and incarceration.[1]

 

Justice Sutherland in the celebrated case of Powell v. Alabama[2] highlighted the importance of right to counsel in the following words:

 

 The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defence, even though he has a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence” –      

  

This statement by Justice Sutherland rightly portrays the dilemma of a defendant who does not have the benefit of having counsel to guide him in his defence. Right to counsel is one of the basic necessities of a fair trial, which is an essential human right norm. The necessity for counsel in an adversary system of criminal justice like ours can be felt from the pre-trial stage up to the trial and appeal stages. Governments both federal and state, quite properly spend vast sums of money to establish machinery to try defendants accused of crime and the Attorney- General and his officers are deemed essential to protect the public’s interest. In this setting, it is obvious that any one accused of a crime that is too poor to hire a lawyer, cannot be assured a fair trial, unless counsel is provided for him.[3]

 

It is also a truism that counsel is equally as important in civil trials as it is in criminal trials Where a man is being challenged in court by a fellow citizen who has engaged the service of an experienced lawyer and he does not have the means to engage a lawyer to stand in for him, such a person will invariably not be in a position to appreciate the technicalities of the law and may loose his property or some other rights in contention. These are the factors that make legal aid or public defence, especially for the indigent and the vulnerable requisite in a just and civilized society. Public defence is the raison d’être for the establishment of the Office of the Public Defender.

 

Human Right is a very extensive concept. This paper approached the discussion from the ambit of the responsibilities of the OPD as it affects human rights. The Lagos State Office of the Public Defender Law 2008 stipulates that the functions of the OPD includes inter alia: to have responsibility for the provision of legal aid services and advice[4]; to receive complaints from individuals or by referrals from government institutions and private institutions[5]; investigate complaints and referrals made to it[6] and to prepare necessary legal documents, negotiate settlements, or give necessary legal advice[7].  The OPD is empowered to provide free legal services in respect of criminal and civil matters[8] to indigent residents of Lagos State irrespective of tribe, race or religion.[9]  This basically puts the OPD in a vantage position to provide limitless legal services to the residents of Lagos State. In carrying out this mandate which basically revolves around the very important rational, which is the provision of legal aid, the OPD has handled several cases that have human rights implications in various ramifications. They have traversed the gamut of human rights from the human rights in the criminal Process to the human rights in the civil process.

 

This article aims to highlight the activities of the OPD which are directly targeted at advancing human rights in its ramifications. It therefore commences discuss with a brief exposition on the concept of human rights. It proceeds to give a succinct remark about the origin and establishment of the OPD in Lagos State. Discussion on the activities of the OPD are approached under the following segments: the right to counsel/legal aid, termination/employment benefits, child rights, women’s rights, and compensation /civil claims. Some cases where the OPD intervened are reported under the various segments.

 

The Concept of Human Rights

The term human right has been defined by numerous authors and philosophers[10]. Human rights can be defined essentially as those rights, which every individual born into the world possesses, right from the moment of birth until death. They are a part of the natural gifts and endowments he received from God, and attach to him automatically. They can also be described as universal because all human beings all over the world are deemed to possess them.[11] Human rights specify an inalienable set of individual goods, services and opportunities that the state and society are, in ordinary circumstances, required to respect or provide[12].

Human rights are dynamic in nature and have continued to broaden with human developments and experience. The concept that started with recognition of some basic rights referred to as natural rights[13] has grown in leaps and bounds to include the various categories of human rights that we have today.  The Czech-French jurist Karel Vasak placed human rights into three categories as three generations of human rights: first, second and third generations of human rights.[14]

 

The first generation rights, also known as Liberty Oriented Rights[15] are basically rooted in natural law and have the same identity as those rights defined by earlier philosophers as natural rights. These first generation of human rights are the ones represented in the International Covenant on Civil and Political Right[16], which many countries including Nigeria have adopted and given positive force of law in their constitutions. These rights are given expression as fundamental human rights[17]. These rights include the rights to life[18], right to dignity of the human person,[19] right to personal liberty[20], right to fair hearing[21], right to private and family life[22], right to freedom of thought, conscience and religion[23], right to freedom of expression and the press[24], right to peaceful assembly and association[25], right to freedom of movement[26], right to freedom from discrimination[27], and right to acquire and own immovable property[28].

The second-generation rights are the economic, social and cultural right. They are also known as the Security Oriented Rights. They have their origin from the UNDHR, but were given more impetus by the International Covenant on Civil and Political Rights of 1966 (ICESC). These second generation rights are basically, claim rights against the state. They have been referred to as rights of credit against the state and the organized national and international bodies as a whole.[29] This generation of rights is essentially responses to the forms of economic and political oppression and exploitation associated with the rise of industrial capitalism and colonialism. Trade union rights, for instance, are human rights because they provide some safeguards against the total domination of workers by their employers and empower workers to protect their own interests against these often much more powerful forces through collective bargaining.[30]

 

The economic, social and cultural rights are contained in Chapter II of the 1999 Constitution, under the caption, Fundamental Objectives and Directive Principles of State Policy. This generation of rights is essentially responses to the forms of economic and political oppression and exploitation associated with the rise of industrial capitalism and colonialism. Trade union rights, for instance, are human rights because they provide some safeguards against the total domination of workers by their employers and empower workers to protect their own interests against these often much more powerful forces through collective bargaining.[31] This class of rights is contained in Chapter II of the 1999 Constitution, under the caption, Fundamental Objectives and Directive Principles of State Policy.

 

The third generation rights are also known as group rights. They emphasize group rather than individual rights. They include the rights to freely dispose of their wealth and natural resources; the right to economic, social and cultural development and the right to national and international peace and security[32]. These rights require the cooperation of the other members of the international community to carry it into effect.[33]

Present-day norms of human rights are borne to a certain degree as a consequence of past experiences of subjugation of people either on their own merit, or as members of a group, gender, age etc or for their natural vulnerability. This is the rationale why we have the so-called special rights. This can be considered another generation, perhaps the fourth generation of human rights.  These are human rights, which have been identified as especially necessary for the protection of members of vulnerable groups against the specific sorts of abusive practices of the powers, which have historically oppressed them.[34]

The contemporary standards of human rights are the entire set of internationally recognized human rights declarations and conventions, beginning with the Universal Declaration of Human Rights (1948) and including all of the subsequently drafted and enacted international human rights instruments, such as the International Covenant on Civil and Political Right, (1966); International Covenant on Economic, Social and Cultural Rights, (1966); Convention on the Elimination of All Forms of Discrimination Against Women; the Declaration on the Right to Development; the United Nations Convention on the Rights of the Child; Convention on the Treatment of Juvenile Offenders; the Refugee Convention; and several dozens of other international documents which identify and codify human rights norms.

 

 

 

   The Office of the Public Defender (OPD)

A public defender is a licensed attorney, assigned to represent people who are charged with a crime and who desire legal representation but who cannot afford to hire a privately retained attorney.[35] Historically, the first Office of the Public Defender was established in Los Angeles, in the United States in 1914. This was as a result of the lobbying of California’s first female attorney, Clara Shortridge Foltz.[36] The founding fathers of the OPD were concerned that criminal laws, while necessary, could be used by government to suppress the rights of citizens. The public defender office exists to guarantee that the poor have the right to a fair trial.[37]

 

Before the inception of the OPD in Nigeria, Government and Non Governmental Organizations had recognized that the exercise of the constitutional guarantee of human rights and fair trial should not be affected by a person’s monetary status. It is to redress the great imbalance between the rich and the poor as regards access to justice, that various forms of legal aid were developed to assist the underprivileged. Such interventions include[38]: the Legal Aid Council[39], the judiciary[40], the Nigerian Bar Association[41] and the Non-Governmental Organizations NGOs[42] and the National Human Rights Commission[43]. All these providers have their various shortcomings which the establishment of the OPD sought to address.

The OPD made its first appearance in Nigeria in July 2000, when the then Hon. Attorney- General and Commissioner for Justice, Lagos State, Professor Yemi Oshibajo established the Office of the Public Defender as a unit under the Directorate for Citizens’ Rights of the Lagos State Ministry of Justice.[44] This was in response to one of the major problems of access to justice, especially in criminal matters where cases are stalled for want of representation for accused persons[45]. The Office was given legal backing by the OPD Law 2003 which was reviewed in January 2008. The Office is an autonomous institution whose primary objective is to provide free legal services to the indigent, in line with the Lagos State Government’s policy on access to justice. It is funded mainly by the Lagos State Government and international donor agencies like the Ford Foundation, OSIWA, DFID, etc.

Right to Counsel/ Legal Aid

The right to counsel is one of the human rights encountered in the criminal process from the pre- trial to the trial and post-trial stages. It is a critical due process right and is one of the ingredients of fair hearing as preserved in the Constitution. Fair hearing rights are contained in section 36 (4)-(12) of the Constitution. They include: the right to be tried in public within a reasonable time[46]; right to be presumed innocent until proved guilty;[47] right to be informed promptly, in the language which he understands, of the nature of the offence;[48] right to be given adequate time and facilities for the preparation of his defence;[49] right to defend himself in person or by a legal practitioner of his own choice;[50] right to examine witnesses for the prosecution and have witnesses testify on his behalf;[51] right to an interpreter;[52] right to obtain copies of judgment;[53] right not to be held guilty of a retrospectively created offence;[54] right to protection against double jeopardy (that is, right to plead autrefois acquit or autrefois convict[55]) right not to be tried for the same offence after pardon;[56] right not to be compelled to give evidence at trial[57]; and right not to be convicted of an unwritten offence.[58]

 

When a counsel is engaged to assist a defendant in a trial it is expected that the counsel will advice the defendant on these fair hearing rights, as well as champion the enforcement of these rights on behalf of the defendant.  The legal aid provided by the OPD no doubt, includes dogged protection of the rights of fair hearing, legal advice, assistance, representation, education, and application of mechanisms for alternative dispute resolution like mediation and conciliation.

 

The Director- General of Legal Aid Council of Nigeria, Nwaka Akinlami[59] underscored the significance of legal aid for the following reasons:

• Court proceedings are technical, complex and confusing. Therefore, it is important that a lawyer who understands the procedures should always represent a layperson.
• A teeming population of Nigerians cannot afford to pay for the services of a lawyer. It is therefore needful to provide legal assistance for these persons.
• Legal assistance is also important for purposes of facilitating proceedings in court. This is because legal aid officers do not need an explanation of what is going on in court and therefore this saves time.

Right to counsel offered by the OPD covers the pretrial, trial and post-trial stages. The basis for the provision of counsel at the pre-trial stage is found in Section 35 (2) of the Constitution, which makes the following provisions:

Any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice.

Additionally, section 3 (2) (a) of the new Administration of Criminal Justice Law, 2007, (ACJL)[60] provides that the person making an arrest or the police officer in charge of the police station or any law enforcement agency is to inform the person arrested of his rights, including the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his choice. This provision for the first time makes it mandatory for the law officer making the arrest to actually inform the person arrested of his right to silence and counsel.

The right to counsel during trial is preserved in section 36 (6) (c) of the Constitution. The section states that any one who is charged with a criminal offence is entitled to defend himself in person or by legal practitioners of his own choice.[61] The right to a fair trial requires access to a lawyer during detention, interrogation, preliminary investigations, trial[62] and appeal[63]. The International Covenant on Civil and Political Rights, 1966 (ICCPR), does not expressly guarantee right to pre-trial assistance of counsel, yet, the right has been given international recognition by the American Convention, 1969; European Convention, 1966; and the African Charter, 1981. Principle 1 of the United Nations Basic Principles on the Role of Lawyers, establishes the right to assistance at all stages of criminal process, including interrogations.

Right to counsel on appeal is set down under section 28 of the Supreme Court Act, and section 26 of the Court of Appeal Act, enjoins the Courts to assign counsel to an appellant in any appeal or proceedings preliminary or incidental to an appeal, in which, in the opinion of the courts, it appears desirable, in the interest of justice that the appellant should have legal aid, and that he has no sufficient means to enable him to obtain that aid.

 

Besides the general right to counsel for every one charged with a criminal offence in section 36 (6) (c) of the Constitution, for those that can afford to retain counsel, one of the instances when a suspect is guaranteed the help of counsel is when the person is charged with a capital offence. Section 352 Criminal Procedure Act[64], states as follows:

Where a person is accused of a capital offence, the state shall, if practicable, be represented by a law officer, or legal practitioner and if the accused is not defended by a legal practitioner the court shall, if practicable, assign a legal practitioner for his defence[65].

 

The Supreme Court of Nigeria, in the case of Josiah v. State,[66] declared essential nature of the right to counsel. The right becomes more cogent when the matter involves a capital offence[67].   The operations of the OPD in providing counsel for a defendant has been made part and parcel of the Lagos State Criminal Justice Law. Section 74 of the ACJL Lagos State, 2007 provides that where a police duplicate case file forwarded to the Office of the Attorney-General indicate a prima facie case, in respect of an indictable offence, the Attorney-General is to inform the Magistrate in writing by way of legal advice. A form, indicating a desire to be represented by counsel of his choice or by the office of the public Defender, Legal Aid Council, or any other organization providing legal aid, is to be attached to a copy of the legal advice and served upon the person in respect of whom legal advice is proffered. Where the suspect indicates that he wishes to be represented by any of the legal aid providers enumerated above, the Chief Registrar shall forward the form to such Office.[68] The OPD does not discriminate on the nature of offences it takes up to defend or on the type of court its officers appear in. Its officers defend individuals in very serious offences like murder, manslaughter, rape and minor offences like environmental offences. The officers go to any court to defend its clients. Whether the court is a Customary Court, Family Court, High Court, Court of Appeal or the Supreme Court, the OPD will be there to defend its clients. Provided the petitioner passed the indigency test, he or she will get the attention of the OPD regardless of sex, age and state of origin.

 

Bail/ Release from Custody

Bail is one of the services the OPD provide for individuals. The bail can be processed at three levels and involves filing the application for bail, negotiating it at the police station, or arguing it in the courts as well as identifying suitable sureties for bail and ensuring that the conditions for bail are not onerous.[69] The Constitution provides for release of a person arrested for an offence in section 35 (4). It provides that a person who is arrested or detained by the police should be brought to court within a reasonable time. Where such an arrested person is not tried within a period of:

1. 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
2. Three months from the date of arrest or detention in the case of a person who has been released on bail, he should (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) defines the term reasonable time, to mean:

1. In the case of an arrest or detention in any place where there is a court of competent jurisdiction within a radius of forty kilometers, a period of one day; and
2. 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.

 

Sections 17, 18, and 19 of the Criminal Procedure Act, further empowers the police to release on bail, persons arrested without warrant, subject to the Constitution. The police are authorized by the provisions of section 17 to discharge a person arrested for an offence not punishable with death upon his entering into a recognizance with or without sureties for a reasonable amount to appear before a court, if it will not be practicable to bring such person before a magistrate or justice of the peace within twenty-four hours. Despite these praiseworthy provisions, the police still detain people beyond the stipulated period.

 

There have been some reforms in Lagos State in the area of police detention and remand by magistrates, which have been used hitherto to hold accused persons in detention indefinitely. Section 10 (3) of the new ACJL Lagos State, 2007 now places a duty on the police to inform the Attorney General of Lagos State of any arrests they make every week within one week of the arrest.  Section 18 of the same law provides for the magistrate to release on application, a person taken into custody who has not been released on bail.  The ACJL contains a time frame for Remand Orders. Under section 268 (5), an order of remand made by a Magistrate shall not exceed a period of thirty (30) days in the first instance. After the expiration of the 30 days, the Magistrate shall order the release of the person remanded unless good cause is shown why there should be further remand order for a period not exceeding one month. At the expiration of the further order, the Magistrate is to issue a hearing notice to the Commissioner of Police and/ or Director of Public Prosecutions and adjourn the matter in order to inquire as to the position of the case and for the Commissioner of Police and /or the Director of Public Prosecutions to show cause why the person remanded should not be released. The Magistrate is to extend the remand order only if satisfied that there is good cause shown and that necessary steps have been taken to arraign the person before an appropriate Court or Tribunal. These laudable provisions are meant to curb illegal detentions and also decongest the police cells and prisons. These provisions are in addition, ready tools in the hands of OPD officers in their requests for bail at the police stations and applications for enforcement of fundamental rights in the courts.

Statistics of cases successfully concluded in court by the OPD between from January 2008 to June 2010

As earlier stated, the OPD represents individuals charged with various offences ranging from murder to fundamental human rights and representation of juveniles in conflict with the law. The Office has secured the release of several crime suspects detained in the police stations and remand homes[70]. The OPD has also not faired badly in the area of civil cases. The OPD represents its clients in actions such as wrongful dismissal, tenancy cases, divorce, wrongful dismissal, breach of contract, etc.[71] In cases of rape and defilement, OPD counsel hold watching brief where the police has filed a charge at the Magistrate Court and sometimes assist in the arrest of perpetrators of the offence.

Table 1- Number of cases concluded in courts from January 2008 to June 2010

Year	Number of cases concluded in court
2008	63
2009	94
2010 (Jan-Jun)	95
Total	252

 

Table 1 above, is a presentation of cases the OPD Lagos State concluded in the various courts.

 

From January 2008 up to June 2010, the OPD received a lot of petitions and requests. The Office within this period successfully concluded 252 cases in the various courts. The cases range from very serious criminal offences like murder, armed robbery etc to civil matters like dissolution of marriage.[72] The Office in 2008, successfully represented 63 persons up to conclusion in both criminal and civil cases in various courts in Lagos State, while in 2009, the figure rose to 94 cases. As at June 2010, the office has already concluded 95 cases, which shows an increasing trend.

 

Table 2 – Types of cases the OPD concluded in the courts

S/N	Case Type	Frequency	Percentage (%)
1.	Murder	10	4
2.	Manslaughter	2	0.8
3.	Armed Robbery/Robbery	40	15.9
4.	Defilement	8	3.2
5.	Stealing	48	19
6.	Assault	17	6.7
7.	Assaulting a police officer	1	0.4
8.	Obtaining by false Pretence	4	1.6
9.	Wandering	19	7.5
10.	Erection of Illegal structure	1	0.4
11.	Bail	3	1.2
12.	Possession of Indian hemp	1	0.4
13.	Malicious damage	1	0.4
14.	Forgery	1	0.4
15.	Burglary	4	1.6
16.	Tenancy	55	21.8
17.	Dissolution of Marriage	21	8.3
18.	Wrongful termination of employment	5	2
19.	Recovery of debt	3	1.2
20	Breach of contract	1	0.4
22.	Environmental offences	7	2.8
	Total number of cases	252	100%

 

Table 2 represents the types of cases the OPD concluded in courts over a period of 2 ½ years with their frequencies and percentages. We find that the tenancy matters topped the list with a frequency of 55 and 21.8%. This is followed by representation in serious criminal cases like stealing, 48 (19%) and armed robbery, 40 (15.1%). Case bothering on dissolution of marriage also attracted a high number, 21 (8.3%). Many of the cases office is handling are still pending in various courts. The data presented above did not take account of the numerous petitions and requests the Office received most of which the officers in the OPD mediated upon and the parties settled amicably. The very many bail the Office has helped to secure for suspects in police custody are not included in this data. A few of the cases where the Office represented the defendants as counsel are reported below.

 

1. Emmanuel Sunday

 He was charged with conspiracy to rob and armed robbery and had been remanded in prison custody since 1996. The OPD took over the case in 2004 and represented hi in court. He was discharged and the matter was struck out for want of diligent prosecution.

1. State v. Sarafa Afolabi[73]

The defendant was arraigned for conspiracy and armed robbery allegedly committed in 2003. He was arrested by the police and kept in detention thereafter in 2003. However, the prosecution could not muster witnesses to effectively prosecute the case, but kept adjourning the case. OPD counsel representing the defendant, urged the Court to strike out the matter for want of diligent prosecution. The case was struck out and the defendant discharged on the 26/01/2010 after spending ten years in detention.

 

1. State v. Abudu Ibrahim[74]

The defendant was arraigned for the offence of murder in 2002 and kept in detention thereafter. The prosecution was unable to produce witnesses to successfully prosecute the case. The OPD counsel representing the defendant moved the court to strike out the matter for want of diligent prosecution. The case was struck out on 12/01/2010 and the defendant was discharged after spending eight years in detention.

1. State v. Nnakalu & Ors.[75]

The defendant was arraigned for conspiracy and armed robbery allegedly committed in 1998. They were kept in detention since 1998. The prosecution was unable to garner witnesses to prosecute the case. The OPD counsel representing the defendant moved the court to strike out the matter for want of diligent prosecution. The case was struck out on the 05/06/2008 and the defendant was released after he had spent ten years in detention.

1. State v. Sampson Alade &2 ors[76]

This is a case of conspiracy and armed robbery allegedly committed in 2001. The defendant was arraigned in 2002 but the prosecution could not present witnesses to effectively prosecute the case, but kept adjourning the case while the defendant was rotting away in perpetual prison custody. OPD counsel representing the defendant moved the court to strike out the matter for want of diligent prosecution. The case was struck out on 2/2/2010 and the defendant was discharged.

1. C.O.P v. Bless Biaku John[77]

This is a case of defilement against the defendant. The defendant had been in custody since the inception of the case in 2010. The prosecution was not able to bring witnesses to appear in the matter despite witness summons issued against them. OPD counsel moved for striking out of the charge against the defendant. The matter was struck out.

 

Termination/Employment Benefits

 

Article 15 of the African Charter guarantees the right to work under equitable and satisfactory conditions with equal pay for equal work. Umozurike has advanced the right to imply the entitlement to some benefits in the absence of a job. It is observed that the provision is observed in the breach as no African country pays unemployment benefits.[78] As part of the State social order founded on freedom, equality and social justice, by section 17(b) and (e) of the Constitution, the State is to direct its policy towards ensuring that conditions of work are just and humane and that there is equal pay for equal work.

A worker is defined by section 91 of the Labour Act[79] as any person who has entered into or works under a contract with an employer, whether the contract is for manual labour or clerical work or is expressed or implied or oral or written, and whether it is a contract of service or a contract personally to execute any work or labour.[80]  By the provisions of section 11(1) of the Labour Act, either party to a contract of employment may terminate the contract on the expiration of notice given by him to the other party of his intention to do so. An employer is supposed to pay the employee all wages payable in money on or before the expiry of any period of notice.[81]

 

A contract of employment may be lawfully terminated for misconduct or for any of the following means:

1. by the expiry of the period for which it was made; or
2. by the death of the worker before the expiry of that period; or
3. by notice in accordance with section 11 of the Labour Act.[82]

Section 9 (8) of the Labour Act, states that the termination by the death of a worker shall be without prejudice to the legal claims of his personal representatives or dependants.  A worker whose employment is unlawfully terminated will have a remedy in damages for wrongful dismissal. There is a distinction between a contract for a fixed period and a general contract which may be terminated at any time with proper notice[83]. Where an employment is determined by the operation of law, e.g. by the employer’s company going into liquidation or as a result of frustration by way of redundancy, the employee is entitled to his wages according to the terms of the contract, or where the contract is silent on this point, for the period for which he has actually rendered service.[84]

 

There are many cases where employers unlawfully terminate the contract of employment without paying severance benefits or in some cases, owing the employee salaries for months already worked for. There are also cases where employees sustained permanent incapacitating injuries while in working for their employers, without their employers paying compensation to them The OPD has championed the cause of so many individuals who had claims against their erstwhile employers who have greater financial muscle and influence to intimidate the already disempowered individual. Some of such cases are summarized hereunder.

1. Muiz Tunde Balogun v. Union Bank of Nigeria Plc[85]

The plaintiff represented by the OPD, commenced action against the defendant claiming inter alia, a declaration that the letter purporting to terminate his appointment after he has voluntarily resigned his appointment is wrongful, illegal, null and void; an order directing the defendant to pay him all outstanding claims, pensions and emoluments due to him. Alternatively, he claimed the sum of N 10, Million being special and general damages for the illegal, wrongful and unconstitutional termination of appointment. At the end of submissions, judgement was given in favour of the plaintiff as per his prayers and relieves sought.

1. Oluwanisola Olatunbosun and Nigerian Bottling Company

The Petitioner brought a complaint to the OPD that while he was in the employment of the Nigerian Bottling Company (NBC), he sustained an eye injury that made him partially blind. He claimed that initially the company was paying for the treatment but they suddenly stopped. Upon the intervention of the OPD, the NBC got committed to pay for the eye treatment, which will cost about $4, 000. (Four Thousand Dollars)

1. Isaac Oguntade and Bafani Engineering Company Ltd

The applicant worked with the company for six years before his employment was terminated due to reorganization in the company. He alleged that the balance of his entitlement benefit amounting to the sum of N18, 767.00 was not paid by the company. Immediately the OPD wadded into the matter, the balance of his entitlements was paid.

1. Kanu Chikaogwu and Institute of Technology, Oregun-Ikeja, Lagos

The petitioner reported to the OPD that his employer owed him a backlog of salary and trickishly sacked him without paying him. On receiving the petition, the OPD summoned the two parties and a compromise was reached and the petitioner was paid the sum of N45, 000.00.

1. Chibuzor Ashiegbu and Zenith Bank

The petitioner a former staff of Zenith Bank, petitioned the OPD against the Bank. He alleged that the Bank terminated his employment without any compensation for the long service he rendered to them. The OPD took up the matter and the Bank paid the petitioner the sum of N 40, 000 (Forty Thousand Naira), representing claims for transport fare to his home town.

 

Children’s Right

International human rights instruments dating back to the Universal Declaration of Human Rights have always been concerned with the full and harmonious development of the personality of the child.[86] While providing for the rights and freedoms set forth in the covenants, to which everyone is entitled without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, they also proclaimed that childhood is entitled to special care and assistance. Statutes of specialized agencies and international organizations concerned with the welfare of children and international instruments specifically adopted for the protection of the rights of the child, have continually stressed that the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.

 

Article 1 of the Convention on the Rights of the Child[87] defines a child as every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier. The Child’s Rights Act (CRA), was enacted in 2003 to replace the antiquated Children and Young Persons Law and as the principal legislation on children’s rights in Nigeria. The Act also adopts the same meaning of “a child” as in the Convention on the Rights of the Child[88]. As many as twenty four states, with Lagos State[89] in the forefront, have adopted the CRA and enacted it as law in their states.

 

Section 2 (1) of the Lagos State Child’s Rights Law, 2007, (LSCRL) affirms that a child is to be given protection and care necessary for the well being of the child, taking into consideration the rights and duties of the child’s parents, legal guardians, individuals, institutions, services, agencies, organizations or bodies legally responsible for the child.[90] The right to the dignity of the child is preserved in section 10 of the LSCRL. The section states as follows:

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;

(c) subjected to attacks upon his honour or reputation; or

(d) held in slavery or servitude, while in the care of a parent, legal guardian or school authority or any other person having authority for the care of the child.

 

Despite the foregoing lofty legislations, the children and young persons in Nigeria are still exposed to many human rights abuses as well as other challenges.[91] There are several cases involving child abuse and neglect, which would have gone unnoticed but for the judicious intervention of the OPD. Some of them are reported hereunder.

1. Mary Edwin Idu

The parents of the petitioner died of AIDS, leaving the petitioner and her five siblings to fend for themselves. After the death of their parents, their uncles instead of taking care of them, harasses the children and took over the uncompleted building their parents left and other valuable properties. The OPD intervened in this matter and all the properties were retrieved while the house was completed through the contributions and support of OPD officers. The OPD assisted in putting four of the young children in an orphanage, the SOS Village Isolo, Lagos to be taken care of and to continue their schooling.

1. C.O.P. v. Udoka Ijegbulem & anor[92]

The defendants being juveniles were arrested for wandering and arraigned at the Magistrate Court. They were represented by OPD counsel and were remanded at the Remand home/Government Correctional Centre.

1. The Okiri Children[93]

This is the case of a couple that tortured, abused and injured their children. When the OPD got wind of their dastardly acts, the Office get involved

 

 Women’s Rights

The struggle for the attainment of gender equality has been the rationale for the various symposia, conferences, workshops, campaigns and all sorts of propaganda being organized and held by women both locally and internationally[94]. Section 42(1) of the Constitution is meant to safeguard citizens from any form of discrimination. The section provides thus:

(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 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, religions or political opinions are not made subject….

(2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.

Article 15 of CEDAW states that:

1. States Parties shall accord women equality with men before the law.
2. States Parties shall accord 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.

These provisions which are meant to guarantee equality before the law has not succeeded in curbing discriminatory actions by government, non-governmental agencies and persons. The discriminatory practices against women is felt in all spheres of life, be it political, economic, social, or cultural.[95] Nigeria is a State Party to The Convention on the Elimination of All Forms of Discrimination Against women (CEDAW), though it is yet to domesticate it more than twenty seven years after its ratification.

1. Violence against Women, Divorce and Child Custody

The right to life is a foremost human right which is guaranteed by both international conventions and domestic legislations. The Constitution states that no one shall be deprived intentionally of his life[96]. Tied to this is also the right of every one not to be subjected to torture, or to inhuman or degrading treatment.[97] Violence against women is a misconduct that is widely acknowledged and condemned both in the domestic and international arena. Violence against women which occurs in the family is an aspect of the systematic subordination of women by men and therefore is in itself a human rights violation in the same way as torture is. There have been cases where violence against women resulted in death, thereby terminating the very important right to life.  The United Nations have sponsored international conferences, exclusively in a bid to find solutions to this anomaly. Such conferences include: the 1985 World Conference on Women in Nairobi, Kenya, the 1993 World Conference in Vienna and the 1995 Fourth World Conference on Women in Beijing, China. It has also adopted instruments aimed at curtailing discrimination and violence against women.

 

Article I of the Declaration on the Elimination of Violence against Women[98]  defines violence against women as any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life. The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa[99], adopts a similar but wider definition of violence against women. The Protocol defines violence against women as: “all acts perpetrated against women which cause or could cause them physical, sexual, psychological, and economic harm, including the threat to take such acts; or to undertake the imposition of arbitrary restrictions on or deprivation of fundamental freedoms in private or public life in peace time and during situations of armed conflicts or of war”.[100] Gender inequality is a phenomenon which is constantly felt and experienced by women, manifesting often by threats and actual violence against women. Jadsola Akande noted that violence against women takes various forms and proportion. It may be physical, sexual or psychological, which may be by threats, coercion, arbitrary deprivation of liberty, battery, sexual abuse of female children, female genital mutilation, sexual harassment, intimidation at work, etc.[101] Many times such violence are not reported.

 

Violence by State Agents

Violence and brutality by uniformed law enforcement, military and security personnel is a very common incident in our streets and highways. Assault by state agents has continued unabated mainly because the victims often do not report their ordeals to the appropriate quarters. This is basically as a result of lack of knowledge of their rights and the “above the law image” the military has created in the psyche of the average Nigerian as a result of long years of military rule, which was characterized by massive human rights abuses[102]. Quite recently the international community was treated to a film show of violence against a Nigerian woman, Miss Uzoma Okere by State agents who are meant to protect the civilian populace. Assaults on innocent citizens are very common in our society, but this particular assault exposed the highhandedness and the intolerance of the military to the innocent citizens. Through the help of the OPD Lagos State, the case was pursued to a satisfying conclusion. The facts of the case are given below.

Miss Uzoma Okere & anor v. Rear Admiral Arogundade & 5 others[103]

On 3/11/2008, Miss Uzoma Okere was beaten and stripped naked in Lagos by five armed naval ratings attached to Rear Admiral Arogundade, for allegedly failing to give way quickly to Arogundade’s convoy.[104] This ugly incident was recorded on video by press men who came to the scene of the incident and the clips were played in both local and international media. This episode unlike the others in the past attracted severe condemnation by several well meaning Nigerians, organizations and even the government. The Governor of Lagos State, Mr. Raji Fashola, directed the OPD to take up the matter for redress. Through dedicated OPD counsel, Miss Uzoma Okere, brought an application by way of originating summons, pursuant to the Fundamental Rights (Enforcement Procedure) Rules 1979 and under the inherent jurisdiction of the court, alleging that her fundamental rights to life, dignity of human person, freedom from discrimination and freedom of movement have been blatantly breached by the respondents. She claimed N100 million naira damages, which was awarded by Hon. Justice Oke (Mrs.) of the Lagos High Court.

 

Domestic Violence, Divorce and Child Custody

Most of the time, violence against women is domestic in nature. This means that the perpetrator is a relation of the woman, mostly the husbands.  Violence within the domestic environment is accepted as normal and a thing that should not be reported. This preference to remain silent is due to shame; fear of stigmatization, further violence, divorce that might lead to losing custody of her children; culture and the likelihood of not being able to maintain herself and her kids financially.  Where the woman summons courage to report the matter at the police station, the police treat the matter as a child’s play and would be quick to tell the woman that the matter is a domestic affair and she should go home and settle the matter with her husband or relation as the case may be.[105] Many informed women after suffering under the yoke of violence in their marriages, decide to sue for divorce. In some cases such women lack the financial capacity to pay the lawyer’s fees. The OPD has helped such women by acting as counsel for them in divorce suits as is seen in the cases set out in this segment.

 

Tied to the issue of divorce and separation is the question of child custody.  Many times in formal divorce suits, the knotty issue is about which party should have the custody of the children and how the children would be maintained. Section 71 (1) of the Matrimonial Causes Act, makes detailed provisions on custody of children on dissolution of a marriage. It provides thus:

“In the proceeding with respect to the custody, guardianship, welfare, advancement or education of children of the marriage, the court shall regard the interest of these children as the paramount consideration, and subject thereto the court may make such order in respect to these matters as it thinks proper”   

 

In determining the paramount interest of the children as stated in the above section, the courts often take into consideration a number of factors, which include: the ages of the children, the adequacy of arrangement made for their education, welfare and general upbringing, as well as the conduct of the claimant and length of duration of stay with one parent, problems of religion, upbringing, sex of children, amongst other considerations.[106]

 

The judicial officer by and large makes orders in respect of the custody and upkeep of the children of the marriage, but obeying the order the way it was stated is a different kettle of fish. Cases of violation of such orders abound. Sometimes the woman is denied access to her children or the man fails in his obligation to provide for the upkeep of the children. There are also situations where the couple disagree and separate without necessarily going to court for divorce, and the woman is dispossessed of her children. The OPD has encountered a lot of such cases and has assisted the women in securing custody of their children and compelling the man to pay maintenance allowance for the up keep of the children. Sometimes the OPD will solve the problem by mediating between the parties without necessarily going to court and the parties will reach compromise on their own accord. Some of these cases of divorce and child custody where the OPD has intervened are given below.

1. Mrs. Aina Dada v. Mr. Aina Dada[107] (Violence, Divorce and Child Custody)

The plaintiff filed for divorce at the Customary Court against the defendant alleging that the defendant battered their 7 and 8 year old children and herself. The defendant stabbed the plaintiff with a knife and used razor blade to inflict wounds on his children. The defendant’s counsel informed the Court that they were not contesting the issue of divorce, but that the defendant wanted the custody of the children. The OPD counsel acting as the plaintiff’s counsel applied to the court orally that it will be unjust and immoral to grant custody of the children to the plaintiff. The court eventually separated the two parties and awarded custody of the children to the plaintiff and also ruled that the defendant should be paying for the schooling, feeding and upbringing of the children.

1. Mrs. Abosede Adetayo v. Mr. Suraju Adetayo[108] (Violence, Divorce and Child Custody)

On the 28^th of August 2009, the petitioner in the above matter appealed for legal assistance to the OPD to appear for her in a Customary Court in respect of the dissolution of marriage between her and her husband, the respondent. Swiftly, on the 4^th of September, the OPD appeared for the Petitioner and was able to have the marriage dissolved based on domestic violence, intimidation, and threatening of life by the respondent on the petitioner. Furthermore, she was granted custody of the two children of the marriage and a maintenance allowance of N5, 000.00 (Five Thousand Naira) was ordered to be paid by the respondent as maintenance on the children.

1. Onikoyi –Deckon v. Onikoyi-Deckon (Divorce and Child Custody)

The OPD acted as counsel for the respondent, wife of the petitioner. The petitioner filed a petition for the dissolution of marriage contracted between him and the respondent on the ground that the marriage has broken down irretrievably. The marriage was dissolved and custody of the two children given to the petitioner who resides in Dublin, Ireland, while the two children will spend their long vacations with the respondent in Nigeria. The custody of the last child was given to the respondent while the petitioner is to maintain the child.

 

1. Miss Rukayat Tomilola Akanni (Child Custody)

Miss Akanni reported the matter of denial of access to her son against the father for more than eight years. The OPD intervened by filing an action at the Juvenile Court. The Father of the child was compelled to bring the child to stay with the petitioner during the holidays.

 

Widowhood, Inheritance and Right to own Property

It is acknowledged that it is in the area of widowhood rites that women have their fundamental rights to human dignity, liberty and freedom from discrimination most violated.[109]  The marriage system in Nigeria is governed by the statutory law of marriage[110], the Islamic law and the customary law. The term customary law in this context connotes all the various customary practices of the various ethnic and geographical groupings in Nigeria. Though the statutory and the customary marriage are each valid in their own right, most marriages in Nigeria are conducted under both systems of law[111] Besides the international standards that confer rights on women[112] and the Constitution which prescribes the standard of non discrimination[113] and right to property[114], inheritance rights and rights accruing upon dissolution of marriage are sometimes governed by a mixture of statutory, Islamic and customary law systems as a result of the parties subscribing to the value of more than one system[115].  In Islamic law, a woman has the right to buy and sell, to contract and to earn, and to hold and manage her own property and money.[116] The Holy Qur’an guarantees women right to inheritance, both as a daughter, sister, mother and wife and warns against depriving or tampering with that right.[117]

 

Customary laws in Africa persistently discriminate against women in Africa in respect of rights to own, hold and dispose of a property. Women as wives and daughters are not allowed to inherit from their deceased husband’s or father’s estate[118]. This is irrespective of the services the widow may have rendered to her deceased husband, or her contributions, financial or otherwise to the accumulation of the property.[119] Some highly placed but illiterate men still enunciate the drivel that a woman is the property of a man and that being the case, she cannot inherit property[120]. Under the Yoruba customary law, a wife upon marriage is entitled to be allocated an apartment or rooms by her husband to which she retains an exclusive enjoyment, but this does not vest the house or room so allotted in the wife as her own separate property. She is however entitled to her own property whether real or personal which she acquired through her own sole effort before or during the marriage.[121] The Igbo customary law on the contrary, does not permit a wife to freely dispose of property she acquired during marriage without the consent of her husband.[122] This situation is even exacerbated at the death of her husband especially where she does not have a male child. In the case of Nezianya v. Nezianya[123], the court held that under the native law and custom of Onitsha, a widow’s possession of her deceased husband’s property is not adverse to her husband’s family and does not make her the owner. Also in Nzekwu v. Nzekwu,[124] the Supreme Court restated that a widow’s dealings with her husband’s property must receive the consent of his family, and she cannot claim the property as her own.

 

Women are better placed as regards rights to own property and inheritance under the Matrimonial Causes Act than under customary law. A woman who contracted a marriage under that Act can approach the court for and the court during the proceedings may make orders for settlement of property for the benefit of the parties and the children of the marriage.[125] Even at the death of the man, the wife of a statutory marriage where the man died intestate, is entitled to the property of the deceased after obtaining letters of administration[126]. Quite often, the widow’s right to inheritance under the Act is ignored by the deceased relatives who regard the deceased estate as their birth right. Even where the deceased left a will, such wills are occasionally ignored by the deceased relatives and the widow receives nothing eventually.[127] The OPD has on several occasions intervened to back up women in pursuing their rights to inheritance on the demise of their husbands and in divorce suits. The following cases testify to this fact.

 

1. Chi Christopher (Widowhood and inheritance)

On the death of the applicant’s husband, the relations of the deceased with the connivance of the police, drove the complainant and her children out of the flat she resided with her husband and also made away with all their properties. The petitioner took the mater to the OPD and the office intervened and helped her to recover most of her husband’s properties including his car, generator, refrigerator, cash, etc from his relations.

 

1. Mrs. Gladys Gbolahan Koajo (Widowhood and Inheritance)

A widow of 80 years old reported that her husband’s siblings teamed up with her stepchildren to take her husband’s properties and drove her out of the house. The office intervened and retrieved the portions of late Kolajo’s real properties, which were allocated to her.

 

1. Mrs. Mary Bertholet and Baale of Poromosan Village, Ikorodu (Widowhood and Inheritance)

 

The petitioner complained that when her husband died in 1999, she approached Mr. Abdul Idowu, the Baale of the village from whom her husband bought four plots of land so that she can take possession of the land. After her efforts to take possession of the land was frustrated by the Baale for three years, she approached the OPD and they succeeded in making the Baale to pay her the sum of N300,000 (Three hundred thousand naira).

 

1. Mrs. Kemi Salami (Inheritance)

Mrs. Salami reported that her uncle refused to hand over her father’s property to her after the death of her father. The OPD intervened and her uncle eventually agreed to give her the building. A deed of partition was prepared and signed by both parties. Mrs. Salami became a proud owner of a whole building at Idi-iro, Lagos.

 

1. Toyin Yusuf and Others (Inheritance)

The petitioner who was the surviving child of her mother the deceased was left with some property. However, certain members of the deceased family sold some of the property without the consent of the petitioner. Upon intervention of the OPD, a sum of Four Million, Five Hundred Thousand Naira (N4.5million) was recovered in the first instance.

 

Compensation and other Civil Claims

The OPD has on several occasions come to the aid of individuals who have suffered loss or have been hurt either physically or emotionally, and who otherwise would not have had any remedy, having regard to their low economic status. There are many cases where people deserve to be compensated by government authority, an individual or company that caused their loss or hurt and the authority, person or company whom the claim is being made against is adamant about paying the compensation, even though they have the financial capacity to do so. The injury may be as a result of a crime committed against the victim or it may be as a result of a civil wrong. Where the claim is as a result of a crime committed against the victim, because there is no right of prosecution by private citizens without the Attorney-General’s fiat, the intervention here is usually to write a petition to the Commissioner of Police and the Attorney –General seeking criminal prosecution of the offender.[128]  Having done this, the OPD goes further in appropriate cases to sue the criminal offender for compensation for the victim in respect of the injury or damage he has suffered.[129] Some of such cases are reported below.

1. The Bomb blast at the Ikeja Cantonment

When the tragic bomb blast occurred at the Ikeja Cantonment in 2002, the OPD formed a coalition with some NGOs and represented relatives of dead, missing and injured people. The Federal Government was sued and monetary compensation were demanded on behalf of the injured and the relatives of the dead and missing people. This action led to the creation of the Presidential Committee, Lagos Explosion Disaster Relief Fund. The Office compiled names of the victims which was passed to the committee and through this process the office got over One Hundred Million Naira (N100, 000, 000.00) as compensation for their relatives and the injured.

1. Ayodele Bankole

In this case, the petitioner, Ayodele Bankole, was hit by a staff driver of Nigerian Breweries Plc while she was standing at a bus stop. She lost one of her legs at the scene of the accident while the other leg was badly damaged. While she was still in the hospital bed, efforts were made to get the car driver to compensate her, but all these proved abortive and this led to the case being referred to the OPD. Upon the intervention of the OPD, the driver and the company that insured the car, Leadway Assurance Plc were invited for mediation. After series of meetings, the sum of One Million, Three Hundred and Twenty Eight Thousand Eight Hundred Naira was paid as compensation to the petitioner (N1, 328, 800.00).

1. Mrs. Isibor v. Alimosho Local Government

This is a case of wrongful arrest and detention of Mrs. Isibor, a pregnant woman and six other persons. They were charged before the Customary Court for assaulting the officials of the Alimosho Local Government and for other environmental offences, during the monthly environmental sanitation exercise. It was alleged that her husband spearheaded the beating of the Council officials and because he absconded, she was arrested. She and the others were remanded for three months despite her pregnancy. Upon the intervention of the OPD, she was released and the Local Government paid the sum of One Hundred and Twenty Thousand Naira (N120, 000.00) as compensation to her and the other people involved in the case.

1. Charity Anuebuwa v. Strabag Construction Nig. Ltd.

The petitioner reported that there was a ghastly motor accident caused by the conduct and negligence of two drivers of the respondent company, Stragab Construction where she worked. The accident left her with permanent injuries. She also alleged that the respondent refused to either pay for the treatment or compensate her. The office intervened and the company was made to realize that it had caused irreparable damage to the petitioner through the negligent act of its driver. Negotiations were entered into and she was compensated with the sum of One Million Naira (N 1,000, 000.00).

 

Conclusion

From the foregoing it is obvious that the OPD has lived up to its billing in the 10 years of its inception. The Office has traversed almost the entire spectrum of human rights in their efforts to provide legal aid to the indigent Lagos populace. The functions of the OPD has been given enough legal backing and recognition by the OPD Law and the mandatory provision of section 74 of the ACJL Lagos State, 2007, by which forms are now to be filed by suspects indicating their preference of public defence. This will certainly increase in leaps and bounds the magnitude of cases that will come to the OPD. The office requires to put this fact into perspective and reposition to be able to meet the future challenges of the ever increasing demand for public defence.

 

It is imperative for the officers of the OPD to constantly attend continuing legal education training in Criminal Procedure and General Practice and Procedure. Proper professional training on Alternative Dispute Resolution mechanisms is also very crucial for officers of the OPD. Good knowledge, skill and appropriate application of negotiation, mediation and conciliation has the proficiency to drastically and speedily reduce court dockets and engender harmony between disputants, and of course safe a lot of cost.  The Nigerian Institute of Advanced Legal Studies offers courses in these areas that will be of great benefit to the Officers. Other States in Nigeria that are yet to establish their Office of the Public Defender are called upon to emulate the outstanding precedence of the Lagos OPD by speeding up efforts at establishing theirs.

 

FOOTNOTES:

* Ag. Head, Centre for Conflict and Dispute Resolution, Nigerian Institute of Advanced Legal Studies,  

  Lagos. E-mail: [email protected]

[1] The Preamble of the Lilongwe Declaration on Accessing Legal Aid in the Criminal Justice System in

  Africa. Conference on Legal Aid in Criminal Justice: The Role of Lawyers, Non-Lawyers and

other Service Providers in Africa Lilongwe, Malawi, November 22-24, 2004.

[2] (1932) 287 U.S. at 68-69.

[3] See Vorenberg J., Criminal Law and Procedure: Cases and Materials, (Minnesota West Publishing Co.

1975), p. 755.

[4] Section 2 (1) (a) OPD Law.

[5] Section 2 (1) (b) ibid.

[6] Section 2 (1) (c) ibid.

[7] Section 2 (1) (d) ibid.

[8] Section 13 (1) ibid.

[9] Section 12 (1) ibid.

[10] Some of them include: Ezejiofor, G. Protection of Human Rights under the Law, (London: Butterworths,

1963) p. 3, Eze, O. Human Rights in Africa: Some Selected Problems (Macmillan Publisher, 1982), p. 5,

Cranston, M. “Human Rights, Real and Supposed”, in Raphel, D. D. (Ed.), Political Theory and the

   Rights of Man, (Bloomington: Indiana University Press, 1967), p. 52 and Ibidapo-Obe, A. “Human Rights

and State Security: The Nigerian Experience”. JHRLP, (1995) Vol. 5, No. 1, p. 86.

[11] Ani C. C., The Right to Fair Hearing and the Criminal Process in Nigeria: A Study of the Lagos   Metropolis. A Thesis Submitted to the School of Postgraduate Studies, University of Lagos, in partial    fulfillment of the requirements for the award of the degree of Doctor of Philosophy (Ph.D.) in Public     Law, 2009, p. 13.

[12] Ladan M. T., “Human Rights as the Benchmark for Development Policy “The JESCR, Vol. 1 No. 6, 2006,

5. 5.

[13] For more explicit expose on the development of natural rights from natural law, see Omoregbe. J, An

    Introduction to Philosophical Jurisprudence, (Joja Press Ltd., 1994), p. 25; Friedman W., Legal Theory

(Columbia University Press, 1967), p. 88.; Downie R., “Social Equality”, in Rosenbaum A., (Ed.) The

Philosophy of Human Rights: International Perspectives, (Greenwood Press, 1980), p.127.

[14] Vasak K., “Human Rights: A Thirty-Year Struggle: The Sustained Efforts to give Force of law to the

Universal Declaration of Human Rights”, UNESCO Courier 30:11, Paris: United Nations Educational,        

     Scientific, and Cultural Organization, November 1977.

[15] Selby D., Human Rights (Cambridge University Press, 1987), p. 9.

[16] Articles 6-27. See also Articles 1-21 of the UDHR.  See also Articles 3-13 of the African Charter on

    Human and Peoples’ Rights (ACHPR). The Charter was ratified and brought into force in Nigeria on

March 17,1983 by the African Charter Ratification and Enforcement Act, Cap 10, LFN, 1990, now Cap.

    A 9 Laws of the Federation 2004.

[17] See Chapter IV of the 1999 Constitution.

[18] Section 33 ibid.

[19] Section 34, ibid.

[20] Section 35, ibid.

[21] Section 36, ibid.

[22] Section 37, ibid.

[23] Section 38, ibid.

[24] Section 39, ibid.

[25] Section 40, ibid.

[26] Section 41, ibid.

[27] Section 42, ibid.

[28] Section 43, ibid.

[29] Vasak K, For the Third Generation of Human Rights: The Right of Solidarity. Noted in Alston P., A

    Third Generation of Solidarity Rights: Progressive Development or Obfuscation of International Right

     Law? Netherlands International Law Review, vol. 28and 29, (1982/83), p. 307.

[30] Winston M., The Indivisibility and Interdependence of Human Rights

http://www.bu.edu/wcp/MainHuma.htm . Last visited on 12/3/2010.

[31] Winston M., ibid.

[32] See Articles 20-23 of the ACHPR. See also Okeke G. N., “Reflections on International Human Rights

Law and Its Application to Nigeria”, in Unizik Law Journal, Vol. 4, No:1, p. 168.

[33] Umozurike U. O., The African Charter on Human and Peoples’ Rights, (Hague: Martinus Nijhoff

Publishers, 1997), p. 51.

[34] Such vulnerable groups include women and children, refugees etc, for whom special rights have been

Recognized.

[35] http://en.wikipedia.org/wiki/Public_defender. Last visited on 5/7/2010.

[36] Ibid.

[37] http://www.browarddefender.org/. Last visited on 7/7/2010.

[38] See Adeyemi A. A., “A Demand-Side Perspective on Legal Aid: What Services Do People Need? –

The Nigerian Situation”. Paper presented at the International Conference on Legal Aid in Criminal

    Justice: The Role of lawyers, Non-Lawyers and Other Service Providers in Africa, held in Lilongwe,

Malawi, 22-24 November 2004, pp. 4-5

[39] Established by the Legal Aid Act, Cap. L9 2004, Laws of the Federation of Nigeria, as amended by the Legal

    Aid (Amendment) Act 1979; Legal Aid (Amendment) Act, 1986; Legal Aid (Amendment) Act, 1994. One major

impediment of the scheme is that the Council does not extend its services to the pre-trial stage of the criminal process. Counsel can only be appointed to represent defendants at the trial in criminal cases, while in civil matters, only advice can be rendered. See section 7 and the Second Schedule to the Legal Aid Act, ibid. The number of criminal maters covered by the Act has been described as infinitesimal compared to the over 400 offences under the Criminal Code, see sections 37-521, Criminal Code Act, Cap C 38, 2004 Laws of the Federal Republic of Nigeria; Amadi G., “Legal Aid Scheme and Access to Justice in Nigeria’, in Sylvia Akpala (Ed.), Legal Aid Services in Nigeria: The Humanitarian Perspective, (Enugu: Society for the Welfare of Women Prisoners (SWEP), 2001), p. 29. The maximum monthly income of N 5, 000, 00 for beneficiaries under the Legal Aid Act also leaves more to be desired. The Legal Aid (Amendment) Bill, which is presently pending at the National Assembly among other things, seeks to review upwards the income limit for the beneficiaries to N500, 000 (Five Hundred Thousand Naira) annual income.

[40] The Supreme Court Act and the Court of Appeal Act provides Section 28 of the Supreme Court Act, (Cap. S. 15Laws of the Federation, 2004 and Section 26 of the Court of Appeal Act, Cap. C. 36Laws of the Federation, 2004 enjoins the Courts to assign counsel in deserving cases. The Criminal Justice (Release from Custody) (Special Provisions) Act, Cap C 10 Laws of the Federal Republic of Nigeria, 2004 authorizes periodic goal delivery visits and releases of prisoners in appropriate cases by the Chief Judge of State High Courts to release on goal delivery visits. This is a form of legal aid.

[41] The Nigerian Bar Association through its National and State branches encourages its members to take up

cases pro bono. The problem is that it lacks a clearly defined structure that ensures that counsel is

available to meet the ever increasing need for legal aid.

[42] The major deficiency of these NGOs is that they are often limited to a specific interest, i.e. women’s

rights, prisoner’s rights, child rights, etc. and they stick strictly to these operational parameters set by

their sponsors.

[43] The National Human Rights Commission was set up in 1995 to deal with all matters relating to the

protection of human rights as guaranteed by the Constitution and other regional and international human

rights instruments to which Nigeria is a signatory. They are also to monitor and investigate all alleged

cases of human rights violations in Nigeria and also assist victims of human rights violations to seek

appropriate redress and remedies.

[44] http://www.opdlagos.org/about.html. Last visited on 5/7/2010.

[45] See Ani C. C., “Access to Justice in Nigerian Criminal and Civil Justice Systems”, in

Azinge E. & Owasanoye B. O. (Eds.), Rule of Law and Good Governance (Lagos: NIALS, 2009),

397. 397.

   [46] Section 36 (4), 1999 Constitution

   [47] Section 36 (5), ibid.

   [48] Section 36 (6) (a), ibid.

   [49] Section 36 (6) (b), ibid.

   [50] Section 36 (6) (c), ibid.

   [51] Section 36 (6) (d), ibid.

   [52] Section 36 (6) (e), ibid.

   [53] Section 36 (7), ibid.

[54] Section 36 (8), ibid.

[55] Section 36 (9), ibid.

[56] Section 36 (10), ibid.

[57] Section 36 (11) ibid

[58] Section 36 (12), ibid.

[59] Akinlami N. L. “Legal Aid Reforms” in Otteh J. C. (Ed.) Reforming for Justice, A Review of the Justice

   Sector Reforms in Nigeria 1999-2007, (Lagos: Access to Justice, 2007), p. 29.

[60] See Lagos State Government Notice No. 25, Law No. 10, Lagos State of Nigeria Official Gazette, 20^th

March, 2008.

[61] This right is also preserved in Article 14 (3) (d) of the International Covenant on Civil and Political

     Rights, 1966 and Article 7 (c) of the African Charter on Human and Peoples’ Rights, 1981.

[62] See, the Annual Report of the Inter American Commission, 1985-1986, OEA/ser. L/v/11.68,doc. 8 rev.1,

1986. The European Court has in the case of Murray v. U.K (E C 41/1994/488/570, 8 February 1996),

    approved that the right to a fair trial normally requires an accused person to be allowed legal counsel\

during the initial stages of police investigation.

[63]The Human Rights Commission in the case of Pinto v. Trinidad and Tobago (232/1997) 20July 1990.

Submitted by Daniel Pinto. Report of Human Rights Committee vol. II (A/45/40) 1990, at p. 69.

Available at: http://wwwbaysky.com. Accessed on 6/5/2010), expressed the view that the state should

give preference to appointing counsel chosen by the accused including for the appeal.

[64] Ibid.

[65] The equivalent provision is contained in section 186 of the Criminal Procedure Code, ibid.

[66] (1985), 1 N.W.L.R. (pt. 1), p. 131. See also Uzodinma v. Commissioner of Police, (1982) 3 NCLR 325.

[67] See Udofia v. State (1988), 3 NWLR, (pt. 84), 533.

 

[68] See Ani C. C., The Right to Fair Hearing and the Criminal Process in Nigeria: A Study of the Lagos     

    Metropolis, op. cit. note 11.

[69] See Adeyemi A. A., “Demand -Side Perspective on Legal Aid: What Services Do People Need? –

The Nigerian Situation”, op. cit. note 38, p. 12.

[70] See Akinlade B., (Former Head, OPD) Report on Cases Handled by the Office of the Public Defender

between January and December, 2005.

[71] Ibid.

[72] The figures were obtained from the Office of the Public Defender, Motorways Centre, 1 Motorways

Avenue, Alausa, Ikeja, Lagos.

[73] Suit No. LCD/44/09

[74] Suit No. LCD/10/08

[75] Suit No. LCD/61/99

[76] Suit No. LCD/147/02

[77] Suit No FCI/JUV/37/09

[78] Umozurike U.O. “The African Charter on Human and Peoples’ Rights and Economic, Social and

Cultural Rights”, in “The JESCR, Vol. 1 No. 3, 2002, p. 99.

[79] See Cap. L1 Laws of the Federation of Nigeria, 2004

[80] See the exceptions to the definition in subsections (a)-(f)

[81] Section 11 (7) of the Labour Act. Section 11 (2) (a)-(d) lists the duration of notices for various lengths of

employment.

[82] Section 9 (7) of the Labour Act

[83] Akintunde E., Nigerian Labour Law, (Ibadan: Ibadan University Press, 1979), p. 70.

[84] Ibid, p. 73.

[85] Suit No. LD/527/2003

[86] See articles 32 and 24 of the UN International Covenant on Civil and Political Rights, 1966 and article 10

of the International Covenant on Economic, Social and Cultural Rights, 1966.

[87] The Convention was adopted and opened for signature, ratification and accession by General Assembly

resolution 44/25 of 20 November 1989. It entered into force 2 September 1990, in accordance with

article 49.

[88] Section 277 of the CRA

[89] The Lagos State Child Rights Law 2007.

[90] See also section 2(1) of the CRA. See Article 3 (2) of the Convention on the Rights of the Child.

[91] See The State of Human Rights in Nigeria 2008, a publication of the National Human Rights Commission, p.

92

[92] Suit No. FCI/JUV/57/09

[93] See Tell, October 9, 2000, p. 12.

[94] For instance, the international conferences held in Cairo, Egypt and Lahore, Pakistan in 1995 in

preparation for the Beijing Conference of 1995. See Mafa U. M., & Bukar L., “Gender Equality: The

View Point of Islam”, in (2003) 6 U. Maid. L.J., p. 56.

[95] Ogugua V. C., “The Constitution of the Federal Republic of Nigeria: The Issue of Equality Before the

Law” Unizik Law Journal, Vol. 4 No. 1, p. 204.

[96] Section 33 of the 1999 Constitution, Article 3, UDHR 1948, Article 4 ACHPR.

[97] Section 34 (1) of the Constitution, ibid. See also, Article 7 of the International Covenant on Civil and Political Rights Covenant, Article 5 of the African Charter on Human and Peoples’ Rights.

Article 2 of the United Nations Declaration on the Protection of All Persons from Being Subjected to Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (General Assembly Resolution 3452 (XXX) of 9 December, 1975); see generally, the United Nations Convention Against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (General Assembly Resolution, 39/46 of 10 December, 1984.

[98] General Assembly resolution 48/104 of 20 December 1993.

[99] Adopted in Maputo in July 2003.

[100] For a detailed treatise on violence against women, see Ani Comfort, “Curtailing Injustices Against

Women in Nigeria: Legislative and Policy Measures”, in Omole O., (Ed.), Reflections on Nigerian

   Law: Commemorative Essays in Honour of Professor Jadesola Akande, (Lagos: Feat Nig. Ltd., 2009),

139. 136-139.

[101] Akande J., Miscellany at Law and Gender Relations, (Lagos: MIJ Professional Publishers Ltd., 1999), p.

158.

[102] Ani C. C., “Curtailing Injustices against Women in Nigeria: Legislative and Policy Measures”, op. cit.

note100, p. 138.

[103] Suit No.M/615/08

[104] See The Punch Newspaper, November 7, 2008, p. 2.

[105] Ani. C. C. “Curtailing Injustices against Women in Nigeria: Legislative and Policy Measures”, op. cit.

note100, p. 137

[106] Ifemeje F. C., “Custody of Children in Matrimonial Causes Proceedings: A Review of Guiding Laws

and Principles”, in Unizik Law Journal Vol. 4, No: 1, p. 129

[107] Suit No. FKJ/045/08

[108] Suit No. Kcc/65/2009

[109] Augie A. A, “Women’s Rights in Law and Practice: Social Welfare”, in A. O. Obilade (Ed.) Women

    in Law, (Unilag/ Southern University BPUBLIC DEFENCE AND THE ADVANCEMENT OF HUMAN RIGHTS: SOME CASE STUDIES FROM LAGOS OFFICE OF THE PUBLIC DEFENDER (OPD) aton Rogue, Louisiana 70813, 1993), p. 265.

[110] Marriage under the Common Law is preserved in the Matrimonial Causes Act, Cap. M1, Laws of the

   Federation of Nigeria, 2004.

[111] See Atsenuwa A.V., “Women’s Rights Within the Family Context: Law and Practice, in Obilade A. O.,

(Ed.) Women in Law, op. cit. note, 109, p. 118.

[112] Some of these include: The Convention on the Elimination of All Forms of Discrimination Against women (CEDAW); the Declaration on the elimination of All Forms of Violence against Women, General Assembly resolution 48/104 of 20 December 1993 and the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa.

[113] Sections 42 of the 1999 Constitution

[114] Section 43, ibid.

[115] Ibid.

[116] Mafa U.M. & Bukar L., op. cit. note 94, p. 62.

[117] See Holy Qur’an, chapters 4:7, 4:11, 4:12. See Mafa U. M., & Bukar L., “Gender Equality: The View

Point of Islam”, ibid, p. 66.

[118] Ezeilo J., “Genderizing the Judiciary in Commonwealth Africa for the 21^st Century” in Nwauche E. S.

& Asogwa F. I. (Eds.), Essays in Honour of Professor C.O. Okonkwo (SAN), p. 265.

[119] Omiyi S., “A Critical Appraisal of the Legal Status of Widow under the Nigerian Law”, in Kalu A., and

Osibajo (Ed.), Women and Children under the Law, (Lagos: Federal Ministry of Justice” 1989) p. 74

[120] See Akande J, “Giving Public Voice to Women” in Miscellany at Law and Gender Relations”, op. cit.

note 101, p. 131

[121] See Uzodike E. N. “Women’s Rights in Law and Practice: Property Rights, in Obilade A. O., (Ed.)

Women in Law, op. cit., note 109, p. 305. See also the case of Oloko v. Giwa, (1939) 15 N.L.R. 31.

[122] Uzodike E. N. ibid.

[123] (1963) 1 All N.L.R 352.

[124] (1989) 2 NWLR, (Pt. 104), 373.

[125] See section 72 of the Matrimonial Causes Act.  For more on distribution of property upon divorce, see

Arinze-Umobi, “Discriminatory/Inequitable Distribution of Marital Property Upon Divorce”, in Unizik

   Law Journal, Vol. 4 No: 1, p. 188-198.

[126] See section 36, ibid.

[127] Omiyi S., “A Critical Appraisal of the Legal Status of Women under the Nigerian Law” op. cit, note

119, p. 73

[128] Adeyemi A. A., “A Demand-Side Perspective on Legal Aid: What Services Do People Need? –

The Nigerian Situation”, op. cit., note 38, p. 15.

[129] Ibid