Benin Journal of Public Law , Volume 10, 2024

This essay examines the ideas of equality and justice in a federal system. The argument is developed in two major parts, with several sub-parts in between. First, the question and the problem of justice among the federating units is posed. Second, the conditions that conduce to justice is examined. The third is concerned with the problem of equality among the federating units as well as the conditions which are alleged to conduce to it. The federal character requirement as stipulated in chapter Two, Section 14, (3) and (4) of the constitution is analyzed in the light of the demands and imperatives of justice and equality between the units. Section 14 (3) states as follows:

Most customary law systems in Nigeria have rules which by modern day standards are inherently discriminatory against females. This is a direct result of the system of primogeniture practiced by most of the tribes in Nigeria, whereby lineage is traced through the male line1 The system of primogeniture has resulted in the evolution of customary succession rules which discriminate against female children and widows. Women are also discriminated against in other communal matters. For example, women are not qualified to ascend to hereditary titles or tribal thrones in most Nigerian tribes. In those tribes,2 if the incumbent traditional ruler dies without a male heir, then the title or throne must go to a qualified paternal male relative of the deceased. While women can be conferred with ceremonial chieftaincy titles in some Nigerian tribes, in others3 it is forbidden to give a woman any chieftaincy title. Some Customary Law rules also disentitle women from giving evidence in customary land matters and deprive them of legal personality in such matters. Although these customs are regarded as valid and binding by the majority of persons subject to them, are they necessarily in accord with the positive laws of the modern State of Nigeria? What is the attitude of the Courts to these discriminatory customs? Are the Courts maintaining the Status quo or are they upholding the fundamental human rights of women guaranteed under the constitution of the Federal Republic of Nigeria, 1999? If the fundamental rights of women are being enforced by the courts, to what extent have the courts gone presently in adjudicating women’s customary law rights? Are the Courts doing enough? These and other questions shall be examined in this article, against the background of relevant judicial decisions in Nigeria. It is the contention of this article that the trend in these decisions will impact negatively on the fortunes of discriminatory customary law rules in Nigeria. The cases examined in this article are all on Ibo customary law. This is not deliberate. These decisions are the only ones on the subject of this article which emanated from the two highest courts in Nigeria. They are therefore the most authoritative on the principles decided therein. However, most of the principles established in these cases are of country-wide application.

The international trafficking in human beings – particularly of women and children for purposes of slavery, forced labor or prostitution is a growing global problem. It represents the world’s third largest area of organized crime – after drugs and arms trade – and a business that produces an estimated seven billion dollars annually. Again, the physical and sexual abuse of children as well as the trafficking of children for exploitative purposes amount to the worst violations of human rights in recent times. Research has shown that an estimated 35% of victims trafficked annually are under the age of 18. Various studies have also shown that children are regularly kidnapped, tricked, persuaded or coerced into leaving home and often cross international borders with the promise of bogus jobs that could benefit families back home; some are sold into outright slavery. African children are routinely trafficked from one country to another within the continent and to European countries and forced to work as child prostitutes, in farms, plantations, quarries, mines, and domestic servitude. This paper critically examines the near absence of clear policy plans and comprehensive legal frameworks to combat the menace in the continent, particularly in West and Central Africa, and makes proposals for urgent steps in these directions as the foundation of all efforts to combat the scourge.

Improving the social and legal status of HIV-affected populations including their human rights are necessary undertakings in combating the HIV/AIDS scourge in Nigeria. Vulnerability to the disease depends to a large extent on the legal, social and economic conditions in each country. The need for the protection of human rights in HIV- related care, prevention and treatment programs is vital because of the stigma and discrimination surrounding the disease. Protection is needed in many areas of human rights law, especially of groups most commonly affected by the pandemic such as women, children and young people. Integrating human rights protection in Government policies on HIV/AIDS and sensitizing AIDS service organizations are thus essential activities to be embarked UPON in containing the spread of the disease. This paper suggests a human rights based response to HIV/AIDS. It provides a legal and ethical framework for government policies and prevention/care programmes in Nigeria, that would enable the society and individuals respond effectively to the disease.

The term medical negligence1 has acquired a connotation in legal parlance that is at once evocative of both civil and criminal liability and at the same time mutually exclusive in meaning.2 This paper however concentrates on the criminal liability of medical practitioners for negligent conducts in the course of their medical practice.

 Generally, liability for negligence in the criminal law raises some fundamental questions going to the root of the legal basis of criminal responsibility.3 While negligence is recognized as a basis for criminal liability in Nigeria, neither in the Criminal Code4 nor in the Penal Code5 is a definition of criminal negligence provided. It has been suggested that the definitive content of criminal negligence is only discoverable from books, statutes and judicial dicta.6 It is submitted however, that the absence of the definition of criminal negligence does not a priori exclude from the codes clear and unambiguous provisions dealing with categories of conducts that may constitute criminal negligence.

In every democratic society where legislative powers are vested in a group of persons, there usually exist certain rules which must be in place for effective and meaningful deliberation and functioning. Certain other established rules of law are sometimes waived so that this goal can be achieved. Specifically, the law on defamation is affected by reason of the fact that legislators cannot effectively carry out their legislative, supervisory and investigative functions without the danger of breaching this aspect of our laws. In Nigeria the various State Houses of Assembly and the National Assembly have been empowered by law to carry out their functions in an atmosphere devoid of harassment and intimidation. The basis and extent of this protection is the subject of our discourse in this paper. In doing this we have looked at the relevant laws as well as the position in some other jurisdictions. The necessity for this article is borne out of the fact that in recent times some legislators seem to have formed an exaggerated impression of their position based on the provisions of the relevant statutes. Our aim is to reveal the correct position as revealed in the constitution and the relevant cases. Finally we shall proffer suggestions for reforms.

The oil industry has carried on exploitation in the delicate and rich ecosystem of the Niger Delta Wetlands of Nigeria for almost 50 years. What are the impacts of this industry on water? How effective has the law and its enforcement been to minimize the negative impacts of this industry on water? These are the questions that this paper seeks to answer. Our findings show seriously degraded waters following a general lack of enforcement due to shortcomings both in the laws and the regulatory institutions as well as other extra legal. Factors there is an urgent need for comprehensive legislation on water quality management, which will set precise standards, taking into consideration the peculiar circumstances of Nigeria and the Niger Delta environment. Harmonization of functions and strengthening of regulatory institutions together with positive exercise of political will to regulate this industry are however essential for effective enforcement.

Of all the varied attempts to capture the meaning of the term ‘constitution’, it seems that the effort of Prof. O. Hood Phillips is the more far-reaching. According to the learned writer,1 a constitution can be construed in the abstract and in the concrete. For him, a constitution in the abstract is the system of laws, customs and conventions that define the composition and powers of organs of the state and regulate the relations of the various state organs to one another and to the private citizen. A constitution in the concrete sense, on the other hand, is the document in which the most important laws of the country are authoritatively ordained. The position in Britain aptly illustrates Phillips’ notion of an abstract constitution. You will seek in vain if you search for a particular document embodying or which is entitled the ‘British Constitution’. Yet, it is undoubted that the British people have over the past centuries held steadfastly to some documents, statutes, legislations, etc, as fundamental to the British Union.2 It is in this context that one can suppose that a constitution is not merely the whole collection of rules, legal and non-legal, but a selection of them, which have usually been embodied in one document or a few closely related documents. Constitutions have been classified into different types even before the term gained ascendancy in the modern sense.3 In this paper; our concern is with the qualitative classification of a constitution as autochthonous; by which we mean a homegrown constitution.4 We shall examine this constitutional model in the context of Nigeria’s experience in constitutional evolution. We shall trace this evolution with special emphasis on the period 1960 till date. Our aim is to draw attention to the imperative of an autochthonous constitution in Nigeria.

It has become necessary to again examine the scope of the defence of accident under the Nigerian criminal law in the light of the recent decisions of our appellate courts on the circumstances when the defence will be available. The defence assumes that the actus reus of the offence is present without a guilty state of mind. In other words, having regard to the facts which he admits, the accused person should be discharged and acquitted of the offence charged because his conduct in the commission of the offence was an accident or that the consequences that flowed from such conduct was not contemplated by the accused person. Where the defence is upheld, the proper order of the court will be an acquittal. This is in line with the criminal law principle of no liability without fault expressed in the latin maxim of actus non facit reum nisi mens sit rea. That is, there must be a concurrence of the actus reus and the mens rea before a crime can be constituted. The two Nigerian codes create the defence as one that negatives the intent to commit any offence. However, the crux of the matter is to determine the circumstances when the defence will actually avail an accused person. Recent decisions of our superior courts have made it difficult to evolve clearly settled principles on the situations when the defence will be available in cases of unlawful homicide. It is proposed in this paper, to examine the contradictions in the positions of our superior courts first, in their interpretation of the relevant provisions of the Codes and second, in the findings of the Courts as to what may constitute the defence in the light of the earlier cases on the point.

It has been rightly asserted1 that a little turbulence every once in a while is not only inevitable but good for us as it helps to demonstrate, in case we forget, just what our Federal system of government is all about. More often than not deeply – held convictions on policy issues appear too divergent for ready compromise and political considerations personality clashes may militate against amicable settlement. Resort to a credible and balanced adjudicator to moderate the extravagant claims of the protagonists become a necessary adjunct. In most federal systems of government the courts2 are assigned the constitutional responsibility of pronouncing on the honest and actual antagonistic assertion of rights by one individual, state or authority against another. Outright government refusal to implement Court orders are rare as this may attract hostile publicity and form the centre of a political storm. Administrative responses in most cases reveal that it pays lip service to inconvenient judicial decisions, which are, seen as a tedious but unavoidable detour into a domain it regards as its own. This paper seeks to examine some of the various techniques Administration employs in circumventing judicial decisions. This will be done against the backdrop of Administrative response to the recent Supreme Court judgment in the case of Attorney General of the Federation v. Attorney-General of Abia State and 35 others.3