speech by j b daudu san on the occassion of the 1st n.b.a. president’s round table on an agenda...

8/8/2019 SPEECH BY J B DAUDU SAN ON THE OCCASSION OF THE 1ST N.B.A. PRESIDENTS ROUND TABLE ON AN AGENDA FO

1/10

y SPEECH BY J B DAUDU SAN ON THE OCCASSION OF THE 1ST N.B.A.PRESIDENTS ROUND TABLE ON AN AGENDA FOR HUMAN RIGHTS IN

NIGERIA HELD ON THE 9TH OF DECEMBER 2010 AT ROCKVIEW HOTEL

ABUJA

SPEECH BY J B DAUDU SAN ON THE OCCASSION OF THE 1ST N.B.A.

PRESIDENTS ROUND TABLE ON AN AGENDA FOR HUMAN RIGHTS IN

NIGERIA HELD ON THE 9TH OF DECEMBER 2010 AT ROCKVIEW HOTEL

ABUJA

PROTOCOL

My lord, chairman of the occasion, the Hon. Justice Amina Augie, Chair of the

NBA/HRI, the Hon the Attorney General of the Federation, M y lords Spiritual and

Temporal, National Officers here present, Branch Officers here present inclusive

of chairmen of the Human Rights Committees of various branches here present,My learned Colleagues, Gentlemen of the Press, distinguished ladies and

gentlemen.

INTRODUCTION

I welcome you all to this unique event, it is unique in the sense that it is the first

time, your Association, the Nigerian Bar Association is holding or organising a

forum (roundtable) in this case at which a prognosis of human rig hts matters canbe embarked on. I do not intend to convert this forum into a debate on the

dialectics or semantics of human rights in Nigeria. I take it that the basicelementary requirements of human rights development going in tandem with the

Rule of Law is quite understood and indeed appreciated by all and sundry,particularly, the leadership in Nigeria. However if the topic defies any ready

definition, I am willing to adopt the definition ascribed to it by Uchenna Emelonye

in the Blog NBF topics of 1 st November 2010 thus:

Human rights have been defined as entitlements or as urgent interests that

belong to all human beings and deserve protection regardless of status. In

contrast, some legal theorists have defined human rights as artifacts of state

action to the extent that there are no human rights where there is no state to

recognize them. This view of right predicated on a state to enforce it, as

usually reflected in Kants thesis is objectionable because human beings

deserve dignified treatment irrespective of whether the states where they

live recognize the right or not. For the sake of brevity, human rights are

those rights that inhere in the very nature of the human person. They define

and affirm humanity, exist to ensure that human life remains sacred and

guarantee that humanity and injustice are prevented or redressed.


2/10

The provisions of chapter iv of the 1999 Constitution guarantee those very basic

and inalienable rights such as the right to life, right to the dignity of a person,

right to fair hearing in a court of law, constituted in such a manner as to guarantee

its independence and impartiality, freedom of movement and association, right to

property etc. These are supported by the African Union and United Nationsequivalents as contained in their various charters adopted and respected by our

own domestic instrumentalities. All these basic rights are undeniably justiciable

or put in more appropriate language enforceable in a court of law by any person

who feels that his rights are breached or is in danger of being breached. It must

be noted that policy makers and indeed the leadership have ensured that what

has been donated or capable of being enforced are essentially rights that are

personal to the individual as opposed to communal or general rights. The

distinction is worth considering albeit summarily.

TRADITIONAL HUMAN RIGHTS V COMMUNAL OR ECONOMIC RIGHTS

Since it is generally agreed from the basic definition of human rights that its

objective is to guarantee human dignity and progress in life, it follows then thatthose rights in chapter IV cannot and indeed are not the only rights that the

citizens are entitled to. Chapter 2 which deals with fundamental objectives and

directive principles of State policy contains in mandatory language ri ghts and

expectations from the State to which the Nigerian citizens are entitled to and

which ought to be enforceable in a court of law. But these rights and duties are

not enforceable according to section 6 -(c) of the 1999 Constitution whichprovides thus: that judicial powers vested in the Courts shall not except as

otherwise provided by this Constitution, extend to any issue or question as towhether any act of omission by any authority or person or as to whether any

law or any judicial decision is in conformity with the Fundamental

Objectives and Directive Principles of State Policy set out in Chapter II of

this Constitution; This provision viewed legally is otiose and technically

useless. What in my humble view it seeks to foreclose is a determinatio n by the

Courts as to whether the act or omission of any person or authority is in

conformity with the provisions of chapter 2 of the Constitution. In other words it

forbids fault finding against any person or authority that may have acted or not

acted under chapter 2. In other words, it seeks to avoid liability and damages foracts or omissions purportedly undertaken vide chapter 2 of the 1999 Constitution.

To appreciate the analysis it is appropriate to summarise the contents of Chapter2 of the 1999 Constitution. Sections 13 and 14 thereof make it mandatory that it

shall be the duty and responsibility of all organs of government, and of allauthorities and persons, exercising legislative, executive or judicial powers, to

conform to, observe and apply the provisions of this Chapter of this Constitution.

And in another breath it asserts that The Federal Republic of Nigeria shall be a

State based on the principles of democracy and social justice.


3/10

Section 15-21 of the 1999 Constitution provides laudable obj ectives of State Policy

for which section 18 is an apt example. I have set it out here below;

18. (1) Government shall direct its policy towards ensuring that there are

equal and adequate educational opportunities at all levels.

(2) Government shall promote science and technology

(3) Government shall strive to eradicate illiteracy; and to this end

Government shall as and when practicable provide

(a) free, compulsory and universal primary education;

(b) free secondary education;

(c) free university education; and

(d) free adult literacy programme.

I have deliberately set out the foregoing provision because of the topical decisionof the ECOWAS Courts judgment read in open court on the 30 th of November

2010, following a suit instituted by the Registered Trustees of the Socio -Economic

Rights and Accountability Project (SERAP) against the Federal Government and

UBEC, alleging the violation of the right to quality education, the right to dignity,the right of peoples to their weal th and natural resources and to economic and

social development guaranteed by Articles 1, 2, 17, 21 and 22 of the AfricanCharter on Human and Peoples Rights. The Court also ruled that the Universal

Basic Education Commission (UBEC) failed to discharge it s legal responsibility

pursuant to its foundational instrument to monitor how states are spending and

using states natural wealth and resources in order to ensure that the resources

are spent for the purposes for which they are meant.

The court granted the following reliefs asked by SERAP:

A DECLARATION that every Nigerian child is entitled to Free and

Compulsory Education by virtue of Article 17 of the African Childs Rights

Act, Section 15 of the Childs Rights Act 2003 and Section 2 of the

Compulsory Free and Universal Basic Education Act, 2004.

AN ORDER directing the Defendant to make adequate provisions for the

compulsory and free education of every child forthwith.

The court also said that the ICPC report on the diversion of the sum of N3.5 billionfrom the UBE fund by certain public officers in 10 states of the Federation of

Nigeria constitutes only a prima-facie evidence of theft of the public funds until


4/10

the officials involved are successfully prosecuted before national courts. On this

ground, the court did not elaborate on the provisions of Articles 21 and 22 of the

African Charter on Human and Peoples Rights.

The Court said that the right to education can be enforced before the Court and

dismissed all objections brought by the Federal Government, through the

Universal Basic Education Commission (UBEC), that education is a meredirective policy of the government and not a legal entitlement of the citizens.

NON JUSTICIABLITY OF CHAPTER 2 RIGHTS AND DUTIES DYMYSTIFIED

The decision of the ECOWAS Court clearly and indeed explicitly debunks anddemystifies the non justiciability of Chapter 2 rights, duties and responsibilities

by Government. Although the Plaintiff in that action tried strenuously to avoid the

restriction imposed by section 6-(c) of the 1999 Constitution by tying his claims

around the African Charter on Human and Peoples Rights and the Childs RightsAct, a care reading of the supposed non justiciability clause i.e. section 6 -(c) of

the 1999 Constitution in my humble but considered vie w frowns against ascribing

liability and damages against persons and authority who have failed to comply

with the provisions of Chapter 2 of the 1999 Constitution. It does not deny anyaggrieved person access to court to seek declaratory remedies and manda tory

injunctive orders to compel Government to carry out its duties and

responsibilities under chapter 2 of the Constitution.

I doff my hat to Femi Falana and SERAP for their timely intervention in the

Education Sector of this Country. It is the best Chr istmas present ever presentedto Nigerians. The NBA believes in the use of Public Interest Litigation to compel

Government authorities compliance with constitutional and statutory provisions

and duties. There can be no other way in a democratic society to ensure

compliance with statutory directives that the resort to constitutional measures of

redress. That is why Government must always respect the decisions of peaceful

democratic institutions like our Courts when it is handed down. The alternative to

disobedience is to encourage people to contemplate extra -judicial measures for

the purpose of seeking redress. We urge Government to forthwith set up the

machinery to obey the ECOWAS Court judgment and implement the terms of that

judgment to the letter. No gov ernment is above the law. Any attempt to sideline

the decision of Courts will be resisted by the NBA. This is the only way to secure

Peace, Order and good Government in Nigeria.

THE JONATHAN ADMINISTRATION AND HUMAN RIGHTS

Reference to the administratio n of President Goodluck Jonathan must be seen in

the context of a continuum, commencing all the way from the administration of


5/10

President Olusegun Obasanjo, leading to that of the late Umaru Musa Yar Adua to

that of the incumbent. I see the policies as the same, incapable of being

differentiated from one another. Secondly, the true test of leadership is

supervision and a process for feedback. The administration lacks both of these

measures. I will deal with a number of human rights deficiencies which will

highlight that had there been a combination of thorough planning, able and

adequate supervision and competent review and feedback mechanism, billionsof Naira expended into certain human rights projects, wastefully would have

been avoided. I will deal with o nly 3 examples thus:

PRE-TRIAL DETENTION JUSTICE

At the moment, there are not less than 65, 000 persons detained in prisons and

police cells as Awaiting Trial Persons. Their continued detention carries with itunintended social and economic consequences. Excessive use of pre-trial

detention leads to chaotic, overcrowded and violent conditions where pre -trial

detainees, who have not been convicted, are at risk of contracting disease such

as HIV/AIDS and Tuberculosis to name a few. Apart from being a treat t o publichealth, it promotes corruption at all levels of the criminal justice system by way of

bribery of court officials and police or prison officials for a variety of benefits.

Because of inability to pay bribes thousands languish in prison custody. The re are

other collateral consequences of excessive use of pre -trial detention. It includes

the interruption of educational advancement for the youth, disruption in

employment and the ability to earn money, greater costs of funding social

programs. These are but a few of the negative effects of social justice.

Federal Government is not unaware of the foregoing problems. The snag

however arises from the manner in which it has sought to provide solution.During the Obasanjo Administration well over 2 Billion Naira was earmarked for

prison decongestion. Developed by Bayo Ojo SAN, lawyers were paid N300, 000per brief to defend persons accused of crimes, argue appeals, defend ATPs and

generally take up briefs that will decongest the Prisons. Lawyers complained that

the process was not transparent with briefs being given on the basis of patronage

and other mundane consideration. It grew worse during the tenure of Mr.

Aondoakaa as AGF when it was rumoured that decongestion briefs were

harvested by non- female lawyers and lay persons. The present Administration

still has not got it right, though it has attempted to set up a Committee oftechnocrats to craft a procedure for decongestion I am afraid that it will not yield

the desired result. Our solution is borne out the existence of several factors infavour of the Nigerian Bar Association. We have a wide reach, 88 branches in 36

States and the FCT, puts us in a position to equitably distribute the briefsaccording to expertise and experience of our members. It will n ot be a job for the

boys if left in the hands of the NBA to manage, at least not under my watch. The

NBA does not desire to keep FGN funds for this exercise; it only desires to be a

clearing house for the enlistment of competent members of the Bar to be in volved

for a fee in the decongestion of Prisons and other detention centres. It will keep

records, train lawyers in pre-trial detention justice, carry out advocacy and


6/10

education in order to hone the skills of all stakeholders in pre -trial justice,

whether they are policemen, prison officials, court staff, lawyers, etc.

We will in due course submit meaningful proposals to the Federal government of

Nigeria through the office of the Honourable Attorney General of the Federationon this matter. We expect them to partner with us on this issue. We will even go

on to set up an NBA Commission on Pre-Trial Justice both at National and

State/Branch levels. We wish to see the commitment of Government on this

matter put to optimum use. The opportunity to put Nigeria h igh up on the index

scale ought not to be squandered.

LEGISLATIVE ARM OF GOVERNMENT AND THE LAW MAKING

EXPECTATIONS OF THE PEOPLE

Every known democracy sits on a tripod, i.e. the executive, legislature and the

judiciary. It is expected that they will wo rk harmoniously and efficiently together.Notwithstanding their primary constitutional functions, they are expected to work

for and in the overall best interest of the People who elected them into office. Our

human rights spotlight must shine on the legisl ature of this Country; this is

because they have a unique opportunity to positively impact on the fundamentalrights of the people and its counterpart, the fundamental objectives and direct

principles of Government. By their lawmaking powers, the National Assembly has

the ability to turn the lives of the People around. I will, in due course, analyse a

few of the Justice Sector Bills that have remained unattended to for the past 11

years and which stand the risk of starting a new legislative life in 2011 bec ause of

the inability of the legislature to pass them. The same legislature however passesmoney Bills and legislations that relate to juicy Federal Government projects. In

the same vein, there is a heated debate as to whether the National Assembly

enjoys 25% of the over head costs of Nigeria. Whether that is true or not, it shows

that the National Assembly is associated with matters that are tied with its owncomfort and affluence as opposed to matters relating to the interest of ordinary

everyday Nigerians. Only recently; we read on the pages of a national daily that

the House of Representatives have abandoned 319 Bills which amassed therein

over the past 4 years. Law making is integral to the development of Nigeria as an

emerging nation. Though detested, the Military was able to rapidly develop the

country by the speed with which it legislated. Now that we have a civilian

government, it was assumed that matters of this nature would receive the fullattention of the legislature. Now 11 years have passed sin ce the change of baton

between the military and civilians with nothing to show for the added benefit of

lack of compulsion. Some of the Bills threatened with abandonment include but

are not limited to the following:


7/10

y Bill on Criminal Justice Administration, to harmonise and consolidatethe criminal procedure laws, reduce delays and provide for more humane

treatment of suspects.

y Administration of Justice Commission Bill; to ensure effectivesupervision and coordination of the administration o f justice by all the

relevant organs.

y Legal Aid Council (amendment) Bill , to expand the powers of the LegalAid Council to provide better legal assistance to indigent persons in

coordination with other service providers.

y National Human Rights Commission (Amendment) Bill, to improve theautonomy of the National Human Rights Commission and give it more

investigative powers.

y Community Service Bill, to encourage the award of non-custodialsentences under the criminal justice system, particularly in mino r offences

and offences involving young persons.

y Victims of Crime Remedies Bill, to improve respect for the rights ofvictim of crime in the criminal justice system.

y Elimination of Violence in Society Bill, to control violence in society,especially violence directed at vulnerable groups like women and

children.

y Bill to Amend the Legal Practitioners Act , to improve the standard oflegal practice by, among other things, introducing continuing legal

education requirements for practitioners.

y Prison Act (Amendment) Bill, to provide a more appropriate legalframework for prisons administration and the treatment of offenders,


8/10

consistent with constitutional and international standard, as well as to make

the prisons more corrective institutions.

y Police (Amendment) Bill, to introduce fundamental changes in themission and operations of the police and improve its effectiveness inproviding security services to communities.

y Evidence Act Amendment Bill, to bring evidence law up-to-date withcurrent developments in IT.

y Legal Education Act Amendment Bill, to provide a legal frame work toensure that legal education regime responds to current needs of the lawstudents, the legal profession and the wider society.

y The freedom of Information Bill, to provide access to governmentinformation on government dealings, policy, programs, and ensure

transparency in governance.

The quality of these Bills, the efforts of the Civil Societies that are sponsoring

them, the societal advantages of the legislat ions had they been passed includingthe progress the country would have made all collectively render the actors in

the legislative sector culpable or responsible for their non passage. It seems to us

in the NBA that if such heavy amount of legislative work is left undone; then the

legislators have failed and do not deserve the mandate of the People to return. If

this situation persists until March 2011, then the NBA will have no option than to

declare all present legislators unelectable and that the People should reject them

at the next general election (polls). This would serve as a lesson to all those who

rise to power through the mandate of the People and forget them when they havereached their legislative kingdom. Unless votes will not count, Nigerians will

reject all those who have ridden to power on their bare backs and turned around

to act either exclusively in the promotion of their own selfish interest or against

the peoples interest. To be forewarned is to be fore armed.

THE NIGER DELTA CRISIS AND HUMAN RIGHTS

The NBA has severally stated that the situation in the Niger Delta a is a human

rights tragedy, and requires a human rights approach. The people of the Niger


9/10

Delta have seen their Economic, Social and Cultural rights abused by oil

companies that the government of Nigeria cannot or will not hold to account.

People living in the Niger Delta have to drink, cook with and wash in polluted

water. They eat fish contaminated with oil and other toxins if they are lucky

enough to be able to still find fish. The land they farm on is being destroyed. After

oil spills the air they breathe smells of oil, gas and other pollutants. People

complain of breathing problems and skin lesions and yet neither thegovernment nor the oil companies monitor th e human impacts of oil pollution.

The NBA firmly believes that the human rights impact of pollution in the Niger

Delta is greatly under-reported. The majority of people in the Niger Delta

depend on the natural environment for their food and livelihood, p articularlythrough agriculture and fisheries. It is regrettable that government is aware of

the risks that oil-related pollution poses for human rights, but has failed to take

measures to ensure those rights are not harmed.

Some oil companies, for their part, have taken advantage of this government

failure, and have shown a shocking disregard for the human impact of theiractivities. There have been some recent signs of improvement, however. The

recently-established National Oil Spill Detection and Resp onse Agency

(NOSDRA) appear to have a more robust approach. We welcome the more pro -

active approach NOSDRA appears to want to take but it needs more resources.

The government must address the human impact of oil industry pollution. They

have a duty to protect their citizens from human rights abuse or harm by

businesses and they are failing in that duty.

President Jonathan may desperately want to see an end to the conflict in the Niger

Delta but the poverty and conflict that continues to scar the Niger Delta will not be

resolved until underlying causes including decades of environmental damage

and impunity for abuses of the environment and human rights ends, and until the

Nigerian government garners sufficient political will and the means to deal wi th

the oil company activities that cause widespread damage to human rights.

TRAFFIC RIGHTS

I have chosen to end this presentation on this note, not because it is trivial but it

highlights the axiom that one mans rights begins where another mans own en ds.

It also shifts the spotlight from the leadership to us the followership. On my way

from the airport this morning we ran into a hold-up at Lugbe, the lawful lanes

were 2 but low and behold, at the first sign of a tail back, my fellow Nigerians

began to create other lanes blocking even on -coming vehicles from passing. At


10/10

the end, we spent far more time than we would have spent had they allowed the 2

lanes to move at its own pace. This brings out several issues. (1) abuse of rights

and privileges of others is not the exclusive preserve of our leaders, (2) we also

have a duty to be law abiding and to respect the rights of others. It is immoral and

unlawful for a road user to seek to take advantage of another road user by

seeking to overtake him in a hold up. His duty is to queue up behind others and

take his turn. (3) When we cannot respect peoples rights in elementary matterssuch as waiting for our turn in traffic, is it social, economic, cultural and even

human rights that we shall respect our individual and collective rights?

Gentlemen and ladies, we must return to the basics. Our great learning and vast

human resources pales into insignificance and nothingness when we cannot

control our base instincts of unduly trying to get the better of our fellow man

undeservedly.

CONCLUSION

I must end on this note that the search for an appropriate human rights climate

cannot be open ended. With the targets set by us for 2015 and 2020 respectively,

we must mend our ways. Mine is to set the tone for todays discours e. I hope I

have done so. I wish you pleasant deliberations ahead.

J B Daudu SAN

President Nigerian Bar Association

09th December 2010

Abuja

speech by j b daudu san on the occassion of the 1st n.b.a. president’s round table on an agenda...

Documents