A FEDERALLY DISENGAGED DG/CEO OF NIMR CAN BE LEGALLY ELECTED NMA PRESIDENT, BUT A SITTING VICE CHANCELLOR CANNOT

The disengagement of a DG/CEO of NIMR by the President of Nigeria is an exercise of a statutorily-vested rights of hire and fire of Mr President of Nigeria. This right could be exercised for many reasons. It is not always that these rights could be exercised based on proven facts. In fact, a DG/CEO of NIMR could be sacked for all the wrong reasons. The path left for him in this instance would be to go to Court to clear his name or suck up to the President in servitude for future considerations as a loyal subject. Where an innocent man is disengaged, the legal option is a long call.

It goes without saying that a disengaged DG/CEO of NIMR is not a convicted felon. Disengagement is not even a charge especially when the reason for disengagement is not expressly stated in the instrument, much less a conviction for an offence. Even if one wanted to make a case out of the disengagement, one would first file a complaint at the Medical and Dental Council of Nigeria for a pronouncement that the disengaged person has acted in an unprofessional manner unbecoming of a medical practitioner.

However, the question of whether A SITTING VICE CHANCELLOR OF A NIGERIAN UNIVERSITY COULD BE ELECTED PRESIDENT OF THE NIGERIAN MEDICAL ASSOCIATION (NMA) is a totally different kettle of fish.

It must be noted that the question is no more about the illegality of a sitting Vice Chancellor being elected President of NMA than it is for the sitting President of NMA being appointed Vice Chancellor pari passu. In other words, would it be lawful for the Federal Government to appoint a sitting President of NMA to be a concurrent Vice Chancellor of a Nigerian University?

First, it must be appreciated that the office of the Vice Chancellor is a creation of Section 2 of the University Act, and the functions of the Vice Chancellor is enacted into law at Section 8 of the same Act. In the Act, the Vice Chancellor is in 4th position of the flow of University command, coming next in hiarrhachy after the Chancellor, the Pro-Chancellor and the Visitor. The implication of this hiarrhachical 4th position of the sitting Vice Chancellor is that any one of his superior could disrupt his NMA itinerary or order him around even in the middle of a meeting of NMA. It is just like a student running two programmes in two different universities. If the examination timetable of the two universities clash, the student would select his opportunity cost. The Opportunity Cost of a sitting Vice Chancellor who is simultaneously the President of the NMA, will definitely be the NMA which he is the Boss.

The NMA is a recognition of the law, and its activities are intertwined with the activities of the Medical and Dental Council of Nigeria (MDCN) which is a statutory body. The position of NMA vis a vis the statutory position of MDCN places the NMA high in the administration of the medical profession in Nigeria. While the day-to-day running of a University squarely lies in the hands of the Vice Chancellor, the day-to-day running of the medical professional group called NMA lies squarely with the NMA President. Without prejudice to the conflict of interests for being an appointee of government, a single man saddled with the concurrent Vice Chancellorship of a University and Presidency of the NMA must be a Superhuman who shall arguably resort, in the final analysis, to be piling Opportunity Costs of university administration on the heads of individual Nigerian doctors and the dwindling medical profession.

It is of no moment trying to X-ray the legality of an NMA President simultaneously occupying the office of the Vice Chancellor, or the legality of a Vice Chancellor concurrently taking up the position of the President of the NMA. The University Act and the NMA Constitution are both clear and explicit on these legalities especially the mutual respects and jealousies enjoyed by the two lofty and demanding positions.

The debate on the concurrent Presidency of NMA and Vice Chancellorship of a University therefore goes beyond the laws and any tolerating document. The debate goes to the root of the fundamental principles and purposes for the establishment of the two bodies - the NMA and a Nigerian University. The debate also goes to the sycophantal basics, of whether in an association comprising over 80 thousand membership, only one person who is already shackled and bespectacled with the 4th hierarchical office of the Vice Chancellor, is fit to navigate the expanding perimeters of the vibrant Nigerian Medical Association at this dire moments of the sick and sinking Nigerian Medical Profession.

Ikenna Awkadigwe
awkadigweikenna@gmail.com
08039555380

COULD A SITTING VICE CHANCELLOR BE ELECTED PRESIDENT OF THE NIGERIAN MEDICAL ASSOCIATION

The question of whether A SITTING VICE CHANCELLOR OF A NIGERIAN UNIVERSITY COULD BE ELECTED PRESIDENT OF THE NIGERIAN MEDICAL ASSOCIATION (NMA) is latest discussion in the mouth of Nigerian doctors as they match towards the May 30th virtual Delegates Elections as recently scheduled by the National Officers Committee of the great Association.

The genesis of this discussion is the widespread speculation or reality of a University Vice Chancellor vying for the post of the President of the Nigerian Medical Association in the forthcoming election of the National Officers Committee of the Association by a few doctors called Delegates.

These few doctors, who constitute insignificant proportion of the aggregate membership of the Association, and in total disregard of the various calls for the enthronement of universal suffrage in the NMA elections, decide every year who the National Officers of the Nigerian Medical Association must be.

The bone of contention in this ubiquitous discussion amongst the Nigerian doctors is whether it is lawful for a sitting Vice Chancellor in a Nigerian University to simultaneously take up the mantle of leadership of the National Body of all doctors in Nigeria. The general dispute is whether the Constitution of NMA forbids a sitting Vice Chancellor of a Nigerian University from contesting and becoming the President of NMA.

It must be noted that the question is no more about the illegality of a sitting Vice Chancellor being elected President of NMA than it is for the sitting President of NMA being appointed Vice Chancellor pari passu. In other words, would it be lawful for the Federal Government to appoint a sitting President of NMA to be a concurrent Vice Chancellor of a Nigerian University?

First, it must be appreciated that the office of the Vice Chancellor is a creation of Section 2 of the University Act, and the functions of the Vice Chancellor is enacted into law at Section 8 of the same Act. In the Act, the Vice Chancellor is in 4th position of the flow of University command, coming next in hiarrhachy after the Chancellor, the Pro-Chancellor and the Visitor. The implication of this hiarrhachical 4th position of the sitting Vice Chancellor is that any one of his superior could disrupt his NMA itinerary or order him around even in the middle of a meeting of NMA. It is just like a student running two programmes in two different universities. If the examination timetable of the two universities clash, the student would select his opportunity cost. The Opportunity Cost of a sitting Vice Chancellor who is simultaneously the President of the NMA, will definitely be the NMA which he is the Boss.

The NMA is a recognition of the law, and its activities are intertwined with the activities of the Medical and Dental Council of Nigeria (MDCN) which is a statutory body. The position of NMA vis a vis the statutory position of MDCN places the NMA high in the administration of the medical profession in Nigeria. While the day-to-day running of a University squarely lies in the hands of the Vice Chancellor, the day-to-day running of the medical professional group called NMA lies squarely with the NMA President. Without prejudice to the conflict of interests for being an appointee of government, a single man saddled with the concurrent Vice Chancellorship of a University and Presidency of the NMA must be a Superhuman who shall arguably resort, in the final analysis, to be piling Opportunity Costs of university administration on the heads of individual Nigerian doctors and the dwindling medical profession.

It is of no moment trying to X-ray the legality of an NMA President simultaneously occupying the office of the Vice Chancellor, or the legality of a Vice Chancellor concurrently taking up the position of the President of the NMA. The University Act and the NMA Constitution are both clear and explicit on these legalities especially the mutual respects and jealousies enjoyed by the two lofty and demanding positions.

The debate on the concurrent Presidency of NMA and Vice Chancellorship of a University therefore goes beyond the laws and any tolerating document. The debate goes to the root of the fundamental principles and purposes for the establishment of the two bodies - the NMA and a Nigerian University. The debate also goes to the sycophantal basics, of whether in an association comprising over 80 thousand membership, only one person who is already shackled and bespectacled with the 4th hierarchical office of the Vice Chancellor, is fit to navigate the expanding perimeters of the vibrant Nigerian Medical Association at this dire moments of the sick and sinking Nigerian Medical Profession.

Ikenna Awkadigwe
awkadigweikenna@gmail.com
08039555380

THE PRESIDENT OF NMA, DR FADUYILE, CAN REMAIN IN OFFICE UNTIL 2022.

The tenure of the President of the Nigerian Medical Association (NMA) ended on 2nd May 2020 after "an inconclusive election". The election was inconclusive, not just because there was no election as scheduled; the election having been, as a matter of fact, postponed by the President himself, because of the COVID 19 pandemic lockdown. Unopposed candidates are deemed elected by virtue of the provisions of the Association Constitution. The election was inconclusive therefore because prior to the postponement of the election, a few contestants were declared unopposed and thus deemed elected without further assurance other than a return at the Annual Delegates Meeting (ADM) of the Association. This scenario therefore produced some winners even before the postponement and the elections, on the strength of the clear provisions of the Constitution of the Association which made postponement inconsequential to the validity of the election of unopposed candidates.

The President of the Association, whose tenure constitutionally ended on the 2nd May 2020, has not handed over power to those deemed elected at the close of 2nd May 2020. In fact, the President is still fully in charge of the Association "as if" his tenure has not ended. According to Article 12(1)(a)(ii) of the NMA Constitution: "The term of office for all National Officers shall be for two years which shall be non-renewable". This two year tenure ended on 2nd May 2020. It is now notorious that this provision has generated a lot of confusion and controversy in the NMA since 2nd May 2020.

The real question is whether the continued stay in office by Dr Faduyile as the President of the Nigerian Medical Association as he has just insisted upon, is intra vires his association constitutional provisional rights. In other words, could Mr Faduyile legally perpetuate himself in office given the present COVID 19 pandemic situation of Nigeria and the whole world. The answer is in the affirmative as shall be expounded anon.

In fact, it has been postulated at different fora, that the man Faduyile could still remain in that office until the year 2022 as made possible by the archaic and repressive Constitution of the NMA. It must be noted that the problem is not entirely that of the ambitions and aspirations of Mr President. The problem is squarely on the Constitution of the Association as presently written and applied.

The NMA is all about the President. In fact, every other member of the association is reduced to a mere adviser of the NMA President whose advice could be accepted or jettisoned by Mr President, as could be decifered from the clear provisions of the Constitution of NMA. According to Article 12(1)(h)(i) ".......  The President shall act as deemed necessary on behalf of the Association, in between meetings of the NEC but shall report to the Council for ratification at the next meeting of NEC. He shall consult regularly with the other officers on such issues......." Article 12(2)(a) goes on to say: "(ii) The National Officers Committee shall advise the President in the exercise of his duties as stated in 12(1)(h) (i). (iii). Without prejudice to Article 12(1)(h) (i), the National Officers Committee shall act on behalf of NEC and the Nigerian Medical Association in between meetings of the NEC."

The import of these provisions is that the President of NMA is the NMA in-between meetings of the Association. Articles 7, 9, 11, 14 and 15 will therefore only feed into the whims and caprices of the President.

These obvious powers of the President are even reinforced by the provisions of the NMA Constitution that allows ONLY the President to summon each type of meetings of the association, including the meeting of the Committee of Past Presidents that is mooted to take over government from Faduyile. Only the President can summon meetings of the Association when he feels that it is necessary. Mr President is empowered to act as he deemed necessary as seen in Article 12(1)(h)(i) supra. That means that Mr President's opinion is the opinion of the Association. His desires and cravings become the desires and cravings of the Association. The President is thus the haemoglobin and the cardia of the NMA.

Curiously, Article 11(5)(b) empowered the Association to postpone elections thus: "5(b). Any postponement of the AGC and/or ADM after the closing date shall not invalidate these nominations and the closing date as set out in the first notice or/and announcement unless otherwise determined by the ADM". This provision for the power of postponement did not define the persons with disposal action and the circumstances when postponement is permitted considering the mandatory two-year tenure provided for in the Constitution. Now, if the President is empowered to act for the NOC, NEC and ADM in-between meetings "as he deems necessary" as already properly cited from the NMA Constitution, it then means that Mr President is empowered to postpone the NMA elections particularly at this COVID 19 pandemic lockdown era if the President does not consider online meetings as "necessary".

Furthermore, to make matters worse for the progressive members of the Association, the constitutional provisions on the mode of elections of the Association, did a lot of damage and yanked off the mandatory two-year tenure limit of the NEC and the National Officers of the Association and donated it on a platter of gold to the President (who is the only person to bring his tenure and that of the NEC to an end) to manipulate "as he deems necessary".

According to Article Article 11: "1(a). Election of National Officers shall hold once every two years. 2. Notice shall be given by the Secretary General of the Association for nominations to all National Offices at least 12 weeks before the date fixed for the Annual General Conference counted from the date of dispatch ..... 5(b). Any postponement of the AGC and/or ADM after the closing date shall not invalidate these nominations and the closing date as set out in the first notice or/and announcement unless otherwise determined by the ADM ...... 11. Before the commencement of the election, the ADM shall appoint a Returning Officer whose duty it shall be to conduct the election as laid down by the Constitution of the Association. The appointment shall be by nomination and if required, voting shall be as in 10(1). 12. The President shall, following the appointment of the Returning Officer, immediately dissolve the National Executive Council. 13. Every election officer shall hold office immediately after the conclusion of the election in the year of his election until the dissolution of the NEC at the next ADM of an election year .... 15. If for whatever reason, election of officers becomes inconclusive, the Returning Officer shall immediately summon a Committee of Past Presidents who shall elect from among themselves at least three members to run the affairs of the Association for three months within which another election shall be conducted. The Committee so constituted shall select from among themselves a Chairman provided it shall not be the immediate Past President. The Committee shall call for fresh nominations except for offices for which candidates have been returned unopposed".

The above provisions simply mean that the NEC lives on until Mr President kills it. It also means that Mr President hands over to the Presiding Officer who shall return the new Officers as elected. The final straw is that only the Presiding Officer can hand over inconclusive elections to the Committee of Past Presidents who would commence nominations afresh. The present situation can be argued on both fronts that there was no election and that the election was inconclusive. Either way, Mr President's opinion remains the Association opinion as his opinion has been validated and enshrined by the provisions of the Constitution as that of the Association's. The power of interpretation of the same Constitution has also been awarded to the President of the Association in the Constitution.

It is clear that any member of the Association who is aggrieved as to the actions and inactions of the NMA President has three options to follow. First, he can flow with the opinion of Mr President as being the ultimate position of the Association. Secondly, he could patiently wait for Mr President to convene a meeting of the NOC, NEC, ADM or EDM to vent his anger. The President of course has the discretion to hold online meetings or just wait until the Federal Government drops the lockdown to NMA President's satisfaction. The last option is Court. Article Article 24 of the association Constitution stated: "8(c). A member or group or branch shall be free to go to court if the President-in-Council agrees with him or it that he has fulfilled the provision of 24(8)(a) or where there is incontrovertible evidence that his or its letter was received by the President-in-Council and no decision was taken on his request after six months of the receipt of the letter".

The NMA President whom the NMA Constitution mandated to dissolve his NEC after a non-renewable term of two years only, is liable to be sued upon his failure to abide that provisions in reasonable circumstances, given the bare powers of postponement contained in that Constitution. It has been postulated that COVID 19 pandemic will hold the world hostage up to 2022. The NMA President could as well remain in office till after the viral hostage. Alternatively, the aggrieved member(s) or Branch could give a 6 month notice to the Association, and commence the Court action in December 2020. The suing capacities and positions of the Incorporated Trustees of the NMA who are not on the apron strings of Mr President are woolly. The Incorporated Trustees of the NMA cannot successfully sue a sitting President even if the Incorporated Trustees wanted to, because the President is the NMA.

And who knows!!! The Court may actually resolve such the suit by early 2022 at the latest. Or maybe, just maybe, Faduyile could just do the needful and hand over reign, "if he considers it necessary."

Mr Awkadigwe Fredrick Ikenna (MBBS NIG, LLB NIG, MWACS, DSC)
08039555380
awkadigweikenna@gmail.com

HOW NIGERIAN CONSTITUTION INADVERTENTLY REMOVED THE ENFORCEMENT OF AFRICAN CHARTER AS FUNDAMENTAL RIGHTS ON LABOUR MATTERS

Chapter 4 of the Nigerian Constitution 1999, and the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Chapter A9 Laws of the Federation of Nigeria 2004 were both integrated in the Fundamental Rights Enforcement Procedure Rules 2009 as the Fundamental Rights of Nigerians that a High Court in a state must give effect to according to the provisions of Section 46 of the Nigerian Constitution as amended. According to Order 1 Rule 1 of FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES, 2009:

Order 1 Rule 1: Any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act and to which he is entitled, has been, is being, or is likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur, for redress: Provided that where the infringement occurs in a State which has no Division of the Federal High Court, the Division of the Federal High Court administratively responsible for the State shall have jurisdiction. Form No. 1 in the Appendix may be used as appropriate.

All the fundamental rights in Chapter 4 of the Nigerian Constitution 1999 and African Charter prior to 2010, without exception, were enforceable in the High Courts of Nigeria. This changed in 2010 with the alteration of the Nigerian Constitution. Section 254 C (I) of the 3rd Alteration 2010 abrogated the extent of functions of the High Courts in respect to fundamental rights enforcement litigations in Nigeria. According to Section 254 (1) of the 3rd Alteration:

254 (1) Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-(a) relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, wei f~1rc of labour, employee, worker and matters incidental thereto or connected therewith; (b) relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Labour Act, Employees' Compensation Act or any other Act or Law relating to labour, employment, industrial relations, workplace or any other enactment replacing the Acts or Laws; (c) relating to or connected with the grant of any order restraining any person or body from taking part in any strike, lock-out or any industrial action, or any conduct in contemplation or in furtherance of a strike, lock-out or any industrial action and matters Connected therewith or related thereto; (d) relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of this Constitution as it relates to any employment, labour, industrial relations, trade unionism, employer's association or any other matter which the Court has jurisdiction to hear and determine;

Interestingly, the new constitutional alteration did not mention the Fundamental Rights (Enforcement Procedure) Rules, 2009 (FREP Rules). There was also no mention of the African Charter in the 3rd alteration. The National Industrial Court is not mentioned in the FREP Rules.

The fundamental construction in the abrogation of the high courts powers to entertain fundamental rights suit pertaining to labour issues in Section 254C is that the FREP Rules is not available for the National Industrial Court of Nigeria when the Court assumes jurisdiction over labour fundamental rights suits. The fundamental rights enforcement rules available to the National Industrial Court of Nigeria is the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017particularly the Order 3. The National Industrial Court of Nigeria is not also empowered to entertain labour-based fundamental rights suits emanating from the African Charter.

In conclusion, it goes without any ambiguity that, where the 3rd Alteration of the Nigerian Constitution has abrogated all labour-based fundamental rights suits (whether from Chapter 4 or from the African Charter) from the High Courts, all labour-based fundamental rights suits deriving from the African Charter were hung in legislative skyline and dispatched to neither the High Courts nor to the National Industrial Court. And because a Court cannot assume jurisdiction unless bestowed upon it by statute, a litigant whose fundamental rights entitlements derive from the African Charter is left without remedy in court for fundamental rights enforcement. The African Charter will descend from its glorified and special position to occupy a position of any other legislation bestowing ordinary statutory rights.

Some may still argue that Section 46(3) of the Nigerian Constitution is stretchable to involve the National Industrial Court of Nigeria by implication of law, thereby incorporating the preamble of the FREP Rule and the African Charter into the ambits of the National Industrial Court of Nigeria, while excluding the practice and procedure to be dispatched to the Rules of the National Industrial Court of Nigeria

Dr Awkadigwe Fredrick Ikenna 2018
awkadigweikenna@gmail.com
08039555380

THE POSTGRADUATE MEDICAL COLLEGES ARE NOT EMPOWERED BY LAW TO CONDUCT COMPULSORY UPDATE AND SUNDRY COURSES FOR RESIDENTS.

This article was borne out of the legal and social incongruities of our time in Nigeria. The routine practice over the years is that the postgraduate medical colleges regularly organize courses for residents who are preparing for primaries, Part 1 and Part 2 exams. These courses are usually compulsory courses which the residents must attach evidence of attendance before they would be eligible to write the exams. The question this article seeks to answer is that there is no legal basis for this practice. In fact, the postgraduate medical colleges are not empowered by any law in Nigeria to train residents. They are only empowered to regulate the training of residents and conduct examinations for the already trained residents. The organization of update courses and other compulsory courses by the colleges is thus not backed by laws. This position is clearly provided in the regulatory laws of residency training program.

The undergraduate medical training is regulated by the Medical and Dental Council of Nigeria. This body approves institutions for the training of undergraduate medical students. The body also approves standards of knowledge required to be imparted into the trainee undergraduate medical students. These functions are clearly captured in Section 1 to 3 of the Medical and Dental Practioners Act of Nigeria. In the same manner, the Postgraduate Medical Colleges are empowered by the National Medical College Act and the Residency Training Act to approve institutions for the training of resident doctors in Nigeria. All the powers of training rest with the training institutions. The colleges only prescribe standards of training without being involved in the training itself. The colleges also approve the institutions for the training and conduct exams for candidates trained by the approved institutions.

Section 13 of the National Medical College Act, which mimicked Section 1 (2) of the Medical and Dental Practitioners Act states:

13. The College shall, from time to time, publish in the Federal Gazette and elsewhere as it may think fit-(a) particulars of the standards which are to be treated as sufficient for the purposes of examinations conducted by the College pursuant to this Act; and (b) the list of institutions recognised for the purposes of section 10 of this Act.

The descent of the colleges into the arena of training of resident doctors by conducting compulsory update courses and other sundry compulsory courses by themselves is akin to the Medical and Dental Council of Nigeria conducting update courses and other sundry compulsory courses for undergraduate jmedical students in Nigeria before the medical students are allowed to sit for any MBBS examination. This is not the spirit of the statutes establishing those bodies. The bodies are not supposed to be directly involved in the training. They only prescribe what the training institutions shall carry out. Only the training institutions are empowered to organize any form of training for the residents.

A candidate for residency training program examination is only required to fulfill the provisions of Section 10 of the National Medical College Act which states thus:

10. Where a candidate offers himself for examination under this Act he shall satisfy the appropriate Faculty Board- (a) that he is a registered medical practitioner or dental surgeon, as the case may be, so however that if the candidate is on the temporary register he may be examined only by leave of the Senate given either generally or as a special case; and (b) that he is in possession of and is therein named as the holder of a certificate from an institution recognised by the College showing that he has satisfactorily attended the prescribed course of training in the particular speciatised branch and for the prescribed period of the course.

The import of this provision is that the postgraduate medical colleges are exempted from the conduct of courses for the purposes of examinations of residents. Only the approved institutions can do that. The colleges can only regulate the institutions by ensuring that those update courses and the other sundry compulsory courses as prescribed by the colleges (like manuscript writing and medical ethics) are administered to the residents.

The beauty of this intendments of the Legislature is that residents across Nigeria are not made to risk their lives traveling all the way to attend update and other sundry courses in Abuja, Ibadan and Lagos, when their training institutions did not request for the extra-institutional training as required by law, and when their training institutions did not throw their hands in the air and affirmed that they could not organise the courses for those residents. The issues of cost, road traffic accidents and highway kidnappings will have been significantly obliterated. The issue of residents applying for sponsorship for the now-college courses will be a thing of the past, as the training institutions are required by law to conduct or organize the conduct of the courses of training for the residents, either in the institution of their training or in another institutions approved by the National Medical College.

See also Sections 2, 5 and 7 of the National Medical College Act for more on the functions of the Medical Colleges. The doctrine of ultra vires posits that statutory bodies have functions circumscribed by the statute creating them.  The apex Court had warned and stated unequivocally that any function not expressly or impliedly given to the statutory body is prohibited.

The residency laws of each training institution made it abundantly clear that any training institution which does not offer a particular course of training to the residents shall liaise with other institutions of repute to train their residents. These institutions of repute include teaching hospitals in foreign countries. Thus, where the director of residency training of an institution fails to organize update courses for his residents, he shall liaise with a nearby institution, or even collaborate with nearby institutions to organize befitting update courses for their residents.

There can thus be update and sundry courses organized by one or more training institutions in one state if one institution cannot organize the conduct, or if it comes to the worst, all the training institutions in one geopolitical zone of Nigeria could come together and organize update courses for their examination candidates. This is because, by virtue of Section 10 of the National Medical College Act, only an approved training institution can determine that a candidate has attained the requisite course qualification for the examination, and not the College organized courses.

However, if in the opinion of the postgraduate medical colleges, there are courses that training institutions cannot conduct for the residents, then the colleges could push for the amendment of the National Medical College Act to accommodate them in the training portfolio of residents. This is because, at the moment, the Act does not provide for direct College training of residents. Training institutions must be hospitals as provided by the Act.  The Colleges cannot approve themselves as residency training institutions as they are not hospitals as clearly defined in the enabling statutes. According to the Supreme Court in Afribank (Nig,) Plc. v. Akwara 2006 on the power OF THE CHIEF JUSTICE OF NIGERIA: Whether the chief justice of Nigeria has the power to extend the time to appeal] "The Supreme Court Act above having specifically granted power to the Supreme Court to extend the periods prescribed in subsection (2) has thus taken the matter out of the power of the Chief Justice of Nigeria in the exercise of his authority to make rules of court pursuant to section 236 of the 1999 Constitution. In other words, whereas the procedure for bringing an application for extension of time to appeal shall be in accordance with the rules of court, the power to extend the periods to appeal is directly vested in the Supreme Court. That power clearly derives from Statute. There is therefore no power in the Chief Justice of Nigeria to extend the time to appeal even if he could make rules governing the procedure to be followed. The rules of court could not therefore prescribe an extension of time to appeal." Per Oguntade, J.S.C. (Pp.14-15, Paras.G-D)

Awkadigwe Fredrick Ikenna
awkadigweikenna@gmail.com

(Comments are allowed)

ASSOCIATION OFFICIALS CANNOT SUE FOR DEFAMATION

Libel and slander constitute Defamation. Defamation is a false statement of facts published by one person to damage the reputation of another person. Defamation is both a civil wrong, and a criminal offence if an allegation of crime is involved. Thus, a person who reasonably believes that he has been defamed could take out a civil suit against his defamer, in addition to making a report to the police. However, where there is no allegation of crime, the person defamed can only take out a civil suit against his defamer.  An example of a situation where there is no criminal connotation is where a person is portrayed as an adulterer in southern Nigeria. This could defame the man; but because adultery is not an offence in southern Nigeria, the defamer is not criminally liable and thus the case will not require reporting to the police. On the other hand, where the defamation involves an allegation of crime, the defamer shall be holding long thing. An example is where the defamation involves an allegation of criminal offences like bribery, theft, forgery, perjury etc.

This article seeks to address the frequent use of the threat of defamation lawsuit, by medical association officials, against their due-paying members who allege corrupt practices by such officials. The proof of the truism or otherwise of these allegations leveled against the association officials is usually a story for another day. These allegedly corrupt and incompetent officials, instead of being transparent to the last limit in order to eradicate suspicion, would rather indulge in what is seen by some members as empty threats to take any dissenting voices down in a defamation lawsuit battle. To their minds, they could use funds contributed by their association members any way and anyhow they figured, and yet expect those paying the dues and levies to keep mute when they are not being effectively carried along the activities of the association officials. They fail to understand that every member of the association is entitled to all the details about how the officials run the association. They fail to understand that the officials of an association lay no claim to the ownership of the association, rather, that they are mere servants of the group, with the competitive privileges of being in charge of the day to day running of the association. In so doing, these officials are positioned to rip the benefits of coming in contact with people that matter in the society, propagate their idea of what is good for the association,  and control the resources of the association in behalf of the association; a benefit they stand a chance of exploiting out of office.

This article seeks to illuminate the established legal position that public officers, and in the case of an association, the association officials, are not protected or permitted by law to hide their lecher and incompetence under a threat to sue the members of the group who are alleged to have defamed them or accused them falsely in their capacity as leaders of the association. It is trite that the tort and crime of defamation do not avail a public officer in his capacity as a public officer. It is only on rare qualified conditions with proved actual malice that such officials can seek remedy in court. This is mostly available where the defamatory publication trickles out beyond his official capacities to his private life. Thus, an attack on the official shall not extend to his bedroom manners.

The Appeal Court of Nigeria Per OHO, J.C.A. (Pp. 63-64, Paras. D-B) in the case of NNAJI & ORS v. IWUEKE (2018) LPELR-44043 (CA) said:

"In determining whether the publications in EXHBITS "J", "B", "C" and "F" in the circumstances under which they were made were libelous and defamatory of the Respondent, the need to rely on the principles laid down in AKOMOLAFE vs. NEIC LTD (2000) FWLR (PT. 27) 2016 cannot be overemphasized. In this case, it was held that a publication is defamatory if it is calculated to lower the Plaintiff in the estimation of right thinking people or to cause him to be shunned or avoided, or exposes him to hatred, contempt or ridicule or to disparage him in his office, profession or calling or reflect on his character. See also SKETCH vs AJAGBEMOKEFERI (1989) 1 NWLR (PT. 100) 678; GIWA vs. AJAYI (1993) 5 NWLR (PT. 294) 428."

The question that arises here is whether in the circumstances under which the statement was made there could be said to be defamation. The quality of the statement is as good as the circumstances under which the statement was made. Therefore, a statement that is defamatory in law in one circumstance may cease to be defamatory in law in another circumstance. The fact that a statement as published by one party is defamatory of another party does not ground an actionable defamation. In other words, not all defamations are actionable. That is why many defamation lawsuits fail. Court will take into cognisance the circumstances surrounding the making of the statement before arriving at the conclusion that there was in fact an actionable defamation.

The Defendant, although he published defamatory statements against the Plaintiff, has what is called DEFENCE TO DEFAMATION. This simply means that a Defendant who is in Court over an allegation of Defamation can still not be found liable once he raises those defences to Defamation, and Court sustains the defence. These defences include:

1. Truth or justification of the statement 2. The allegedly defamatory statement was merely a statement of opinion or fair comment 3. Consent to the publication of the allegedly defamatory statement 4. Absolute privilege 5. Qualified privilege in matters of common interests 6. Retraction of the allegedly defamatory statement.

In the light of the foregoing, the court is saddled with the onerous task of striking an acceptable balance between the interest in protecting a person's reputation and the interest in freedom of expression. The position of the law is firmly established that in an action for defamation the plaintiff will only succeed if he is able to prove the essential ingredients of the tort, viz (1) that the words complained of are defamatory (2) that the words referred to the plaintiff (3) that the words were published. In the case of slander, the plaintiff must also prove special or actual damage done to the Plaintiff, unless he can come under the exceptional cases where slander is actionable per se. Slander is actionable per se if the law allows Plaintiff to recover without proving that the defamatory publication caused him any harm. It is trite that an action for defamation cannot be sustained without proof of publication.

The success of the plaintiff in an action for defamation also depends on the absence of an acceptable defence from the defendant. When successfully raised, some of the the defences of justification, absolute privilege, qualified privilege, and fair comment would completely exonerate the defendant from liability in an action for defamation. Only qualified privilege and fair comment require a defeating reply from the Plaintiff. Justification and absolute privilege completely exonerate the Defendant at all time. The availability of these defences clearly confirms that the right to freedom of expression would not be denied easily and the restriction provided by the law of defamation is by itself not absolute. The entrenchment of the right to freedom of expression in the Constitution underscores its importance and the need for its protection and promotion. This constitutionally entrenched right to freedom of expression cannot be easily displaced by the undefined constitutional derogations and some statutory provisions on defamation.


The Court of Appeal, in the case of  NNAJI & ORS v. IWUEKE supra, has stipulated what the defence of qualified privilege entails. Per OHO, J.C.A.:

"On what constitutes the defense of qualified privilege, the need to rely on the learned Author of GATELY ON LIBEL AND SLANDER 8TH EDITION at paragraph 441, cannot once again be overemphasized. Here, the position of the law on qualified privilege is stated as follows: 'There is an occasion upon which, on grounds of public policy and convenience, a person may, without incurring legal liability, make statement about another which are defamatory and in fact untrue. On such occasion, a man stating what he believes to be true about another, is protected in so doing, provided he makes the statement honestly and without any indirect or improper motive. These occasions are called occasions of qualified privilege for the protection which the law, and ground of public policy affords, is not absolute but depends on the honesty of the purpose with which the defamatory statement is made.'"

In EMEAGWARA vs. STAR PRINTING AND PUBLISHING CO. LTD (2000) 5 SCNJ 115 AT 185 the Apex Court Per OHO, J.C.A. (Pp. 64-66, Paras. B-B) held that for a report to be privileged it must be fair and accurate. What is stated must be substantial and fair comment of what occurred to earn a defense of privilege. The position of the Supreme Court is that the defense of qualified privilege will avail a Defendant if there is a common interest between the maker of the statement complained of and the person to whom it was made. That is what the Apex Court referred to as "reciprocity of interest". See also the case of MAMMAN vs. SALAUDEEN (2005) 18 NWLR (PT. 958) 511 PARA C in this connection. This reciprocity of interest is the crux of the matter in pure association affairs. This reciprocity of interest effectively converts qualified privilege, in association matters, to an absolute privilege. This is because what amounts to absolute privilege in the general population is akin to discussions on exclusive association platforms that is analogous to an Assembly. This takes away the need to prove negligence where the plaintiff is a private person, as well as the proof of actual malice in the case of a public officer; for qualified privilege.

There is a duty of a plaintiff to deliver a reply from which express malice can be inferred in answer to a defence of fair comment or qualified privilege in the suit of a public officer. For a private person, the reply to be delivered shall prove the inference of negligence in the publication of the defamatory statement. One of the duties required of the Respondent where in an action the Defendant invokes the defense of qualified privilege is to negative the defense as expected and as provided by the Rules of Court. It is important to note that as Plaintiff or Claimant, as the case may be, the only way to negative the defense of qualified privilege under the law is to plead and prove express malice (or negligence as the case may be) on the part of the Defendant. See once again, the case of MAMMAN vs. SALAUDEEN (Supra) at Page 513 - 514 paras H - B. Usually, the place to plead express malice is in a reply to the Statement of Defense. See also the case of BAKARE & ANOR vs. ADO IBRAHIM (1973) 6 SC 205 AT 215 in support. It is carefully observed by this Court that the only pleadings contained in the records of Court are the original Statement of Claim of the Respondent. It is therefore important to note that the Respondent as Plaintiff did not bother to file a Reply to the Statement of Defense as required by the Rules of Court. The implication of this is that the Respondent as Plaintiff, failed to plead or prove any express malice against the Appellants as Defendants. That being the case the defense of qualified privilege relied upon by the Defendants was therefore not negatived . What it therefore means is that the defense of qualified privilege relied upon by the Defendants was deemed admitted by the Respondent as Plaintiff. Perhaps, what the Respondent has to be made to understand here is that it is mandatory for the Plaintiff to deliver a Reply to show that the Defendants were actuated by express malice and that where the Plaintiff fails to deliver the mandatory Reply, the failure is fatal to the entire Plaintiff's claim. There are Supreme Court decisions in support of this position. The need to deliver a Reply is actually a requirement of the Rules of Court. See Order 24 Rule 23 (1), (2) and (3) of the Sokoto State (Civil Procedure) Rules, 1987, and in other States High Court Civil Procedure Rules, which provide generally that:

"1. Wherever it is material to allege malice, fraudulent intention, knowledge or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred. 2. Where in an action for libel or slander the defendant pleads that any of the words or matters complained of are fair comment on a matter of public interest or were published upon a privilege occasion, the Plaintiff shall, if he intends to allege that the defendant was actuated by express malice, deliver a Reply giving particulars of the facts and matters from which such malice is to be inferred. 3. Where in an action for libel or slander the defendant alleges that in so far as the words complained of consists of statements of facts, they are true in substance and in fact, and in so far as they consists of expressions of opinion, they are fair comment on a matter of public interest, or pleads to the like effect, he shall give particulars stating which of the facts and matters he relies on in support of the allegation that the words are true."

Per OHO, J.C.A. (Pp. 66-70, Paras. B, Order 24 Rule 23 (1), (2), and (3) of the Sokoto State High Court (Civil Procedure) Rules 1987 has a similar provision as Order 82 Rule 3 of the Rules of the Supreme Court PRACTICE of England 1965, which states that where in an action for libel the defendant pleads fair comment on a matter of public interest or published upon a privileged occasion, the Claimant if he intends to allege that the defendant was actuated by express malice shall deliver a Reply giving particulars of the facts and matters from which such malice is to be inferred. This Rule of Court was interpreted by the Supreme Court in the case of CHIEF S. B. BAKARE, WEST AFRICAN PILOT LTD vs. ALHAJI ADO IBRAHIM (1973) 3 SC 205. The effect of failure to file the mandatory Reply shall preclude the Claimant from raising the plea of express malice to defeat the defenses of fair comment and qualified privilege raised by the Defendants. It must be noted that malice must be proved with facts and not imaginations.

All the above submissions apply to the defamation of a private person. The whole scenario changes when a public person is alleged to have been defamed. A public person is a private person occupying or running for a public office. Defamatory comments and publications on the activities of the public officer in his capacity as a public officer, are not readily considered defamation. This is based on public policy for the protection of the public. In the case of an online or offline discussion on a closed association forum, all the association officials are, for all intents and purposes, public officers of the association.

The New York Times Co. v. Sullivan, 376 U.S. 254 (1964) was a landmark decision of the U.S. Supreme Court in which the Court ruled that the freedom of speech protections in the First Amendment to the U.S. Constitution restrict the ability of American public officials to sue for defamation. Specifically, it held that if a plaintiff in a defamation lawsuit is a public official or person running for public office, not only must he or she prove the normal elements of defamation (ie publication of a false defamatory statement to a third party), he or she must also prove that the statement was made with "actual malice", meaning that the defendant either knew the statement was false or recklessly disregarded whether or not it was true. This expression of untrue statements or opinions are fueled by suspicious actions or deliberate withholding of timeous information from the due-paying association members. Mr Justice Goldberg, with whom Mr Justice Douglas joins, concurring in the result, stated:

"The Court today announces a constitutional standard which prohibits "a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Ante, at 279-280. The Court thus rules that the Constitution gives citizens and newspapers a "conditional privilege" immunizing nonmalicious misstatements of fact regarding the official conduct of a government officer.... In my view, the First and Fourteenth Amendments to the Constitution afford to the citizen and to the press an absolute, unconditional privilege to criticize official conduct despite the harm which may flow from excesses and abuses. The prized American right 'to speak one's mind,' cf. Bridges v. California, 314 U. S. 252, 270, about public officials and affairs needs "breathing space to survive," N. A. A. C. P. v. Button, 371 U. S. 415, 433. The right should not depend upon a probing by the jury of the motivation of the citizen or press. The theory of our Constitution is that every citizen may speak his mind and every newspaper express its view on matters of public concern and may not be barred from speaking or publishing because those in control of government think that what is said or written is unwise, unfair, false, or malicious. In a democratic society, one who assumes to act for the citizens in an executive, legislative, or judicial capacity must expect that his official acts will be commented upon and criticized. Such criticism cannot, in my opinion, be muzzled or deterred by the courts at the instance of public officials under the label of libel".

This erudition is as poignant as it is classical. The Court went ahead to regret that qualified privilege capable of being negatived by a reply pleading in proof of actual malice, rather than absolute privilege, was attached to defamatory statements against public officers, as Court would have wished.

"We would, I think, more faithfully interpret the First Amendment by holding that at the very least it leaves the people and the press free to criticize officials and discuss public affairs with impunity. This Nation of ours elects many of its important officials; so do the States, the municipalities, the counties, and even many precincts. These officials are responsible to the people for the way they perform their duties. While our Court has held that some kinds of speech and writings, such as "obscenity," Roth v. United States, 354 U. S. 476, and "fighting words," Chaplinsky v. New Hampshire, 315 U. S. 568, are not expression within the protection of the First Amendment, freedom to discuss public affairs and public officials is unquestionably, as the Court today holds, the kind of speech the First Amendment was primarily designed to keep within the area of free discussion. To punish the exercise of this right to discuss public affairs or to penalize it through libel judgments is to abridge or shut off discussion of the very kind most needed. This Nation, I suspect, can live in peace without libel suits based on public discussions of public affairs and public officials. But I doubt that a country can live in freedom where its people can be made to suffer physically or financially for criticizing their government, its actions, or its officials. 'For a representative democracy ceases to exist the moment that the public functionaries are by any means absolved from their responsibility to their constituents; and this happens whenever the constituent can be restrained in any manner from speaking, writing, or publishing his opinions upon any public measure, or upon the conduct of those who may advise or execute it.'" 

The Supreme Court of Kansas, in an opinion by Justice Burch, reasoned as follows (78 Kan., at 724, 98 P., at 286):

"It is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages. The importance to the state and to society of such discussions is so vast, and the advantages derived are so great, that they more than counterbalance the inconvenience of private persons whose conduct may be involved, and occasional injury to the reputations of individuals must yield to the public welfare, although at times such injury may be great. The public benefit from publicity is so great, and the chance of injury to private character so small, that such discussion must be privileged."

In summary therefore, it is a herculean task for a public officer to win a defamation suit against members of his group who published untrue stories about him in his official capacity. To recover in defamation, he shall not only prove defamation, but also prove malice. Unfortunately to him, the proof of malice is a proof with facts, and not sentiments.

In conclusion, an association official, would be better served, by not trying to hide his fraudulent activities during his stewardship, under the threat of litigation for defamation against those he leads or have led in the past, in so far as the issue under discussion are centered around his stewardship. The only option available to him is to explain himself and his activities out to members and recover his dignity if there is actually any. The concept of reciprocity of interest absolutely absolves a member of an association of any liability in defamation while discussing association matters and the manner in which the association officials run the association. It is therefore distasteful, disheartening and repulsive to see a medical association official initiate a defamation suit against another medical brother on account of discussions had on a medical forum on how a medical association is run by the officials. Per onnoghen, J.S.C. (Pp. 33-35, paras. D-A) in Mamman v. Salaudeen (2005) 18 NWLR (Pt.958)478:

"From the principle of law involved in the defence of qualified privilege as reproduced supra, the privileged occasion recognized by the common law can be classified into one of two classes; viz; (a) Where the maker of the statement has a duty (whether legal, social or moral) to make the statement and the recipient has a corresponding interest to receive it, or, (b) Where the maker of the statement is acting in a matter in which he has a common interest with the recipient. When the test for determining whether the statement was made in a qualified occasion is that of duty to make the statement, Earl Loreburn in James v. Baird (1916) SC. (H.L) 158 at 163 -164 stated the position thus: - "In considering the question whether the occasion was an occasion of privilege, the court will regard the alleged libel and will examine by whom it was published, to whom it was published, when, why, and in what circumstances it was published, and will see whether these things establish a relation between the parties which gives rise to a social or moral right or duty, and the consideration of these things may involve the consideration of question of public policy." On the other hand, if the test to be used is that of protection of interests, Lord Esher, M.R. in Hunt v. Great Northern Railway (1891) 2 Q.B. 189 at 191, laid down the following: - "The occasion had arisen if the communication was of such a nature that it could be fairly said that those who made it had an interest in making such a communication, and those to whom it was made had a corresponding interest in having it made to them. When those two things co-exist, the occasion is a privileged one." Still on protection of interest as constituting a ground for the defence of qualified privilege, Lord Young in Shaw v. Morgan (1888) 15 R 865 at 870 stated the position, inter alia, as follows: - "If the statement is made ... in the reasonable attention to a man's own business and affairs, which gives him legitimate cause to write or speak of his neighbour, the occasion displaces the presumption of malice ... and he is only answerable if malice be shown to have existed in fact." It is very important to note that whether the statement is made in a discharge of a duty or in protection of an interest, there must be reciprocity on the person receiving same otherwise the defence cannot avail the defendant."  

Classes of statements, which have been held to constitute privileged occasion include the following: -

(a) Statements made in the discharge of a public or private duty;

(b) Statements made on a subject-matter in which the defendant has a legitimate interest;

(c) Statements made by way of complaint about those with public authority or responsibility;

(d) Reports of parliamentary proceedings;

(e) Copies of or extracts from public registers; and

(f) Reports of judicial proceedings - See Gatley on Libel & Slander, 9th Edition (1998)

In Atoyebi v. Odudu (1990) 6 NWLR (Pt.57) 384 at 399, court stated that reciprocity of interest is an essential element in the law of qualified privilege; that for the defence of qualified privilege  to avail a defendant in an action for defamation, there must exist a common interest between the maker of the statement and the person to whom it was made.

So, what are we talking about again! A discussion in a closed association forum, with no external person, centering wholy on the way and manner the association officials conduct the affairs of the association, is privileged. Only the proof of accentuation of malice in a reply pleading by the Plaintiff can challenge the privilege status of the publication.

The regrettable part of this macabre dance of litigation by some association members against fellow association members on issues that are purely association issues, is that in the end, the Court will throw the suit into the dustbin and refer them back to the association to sort themselves out. This happens after the enormous waste of time, energy and valuable resources by both parties in a case that ought not to go to court in the first place. Purely association issues lying and strong words over the management of an association are sorted out at the association level. A complaint about lies and false allegations against members by members on association issues are reported to the association Disciplinary Committees, and not to Court. It is only an Appeal from the Disciplinary Committee on matters that are against Natural Justice that issues outside the association if the Congress derelicts in addressing them.


Awkadigwe Fredrick Ikenna (MBBS, LLB NIG, MWACS, DSC) 
awkadigweikenna@gmail.com
08039555380

SECURING VICTORY FOR ATIKU AT THE SUPREME COURT

I have read the reasoning in the just delivered Presidential Election Tribunal judgement at the Court of Appeal of Nigeria in September 2019. I must first point out that the judgment appeared like a single story. The prospect of the Supreme Court overturning that judgement, though remote in the Nigerian context, is all the same realisable as would be seen at the conclusion of this article.

Five issues were raised by the petitioners. The contentions of the Justices of the Appeal Court are that the arguments of the petitioners were not meritorious. While the author of this article is not privy to the arguments canvassed at the Tribunal by the parties, the position of the author on the decision of the Honourable Tribunal shall derive from the facts presented by the Lead Justice. I must point out that the failure or omission of the Lead Justice to lay out the relevant pleadings of the parties in the judgment will go a long way to curb the latitude with which there could be an exhaustive interrogation of the reasoning in the judgment.

The Presidential Election Petition Tribunal judgement has come and gone with all the Issues for Determination as raised by the petitioners resolved against the petitioners, and Buhari declared winner. Atiku's petition was dismissed for lacking in any merit, and thus thrown into the judicial dustbin. The five Issues for Determination at the trial were as follows:

1. Whether Buhari was qualified to contest the presidential election 

2. Whether Buhari sent an affidavit laden with false information in aid of his qualification 

3. Whether Buhari was duly elected through majority of votes cast at the election

4. Whether the election was invalid by reason of electoral corrupt practices 

5. Whether the election was invalid by reason of noncompliance with the electoral laws

These 5 issues were thrashed at the Tribunal. The petitioners were said to have failed to prove any of them. This article aims at discovering whether the trial Tribunal was absolutely right in its holding that petitioners failed on all the issues they brought before it, and whether there is any hope for the petitioners at the Appellate Court.

At the buildup to the judgment, it was shocking and curious of the level of emphasis the petitioners placed on the Buhari's Certificates saga as if they mattered. This author was not at the trial proceedings and so did not know what transpired there. All the same, it was thought and believed that the petitioners would dwell more on the rampant corrupt practices and evident noncompliance with the electoral laws during the election; rather than harp on Buhari's non-existent Certificates.

Contrary to the above thoughts and beliefs, it appears that the reverse is the case now. It now appears that the only issue that the petitioners have any iota of sustainability at the appellate Court is the issue on Buhari's Certificates and qualifications.

The Tribunal made it clear that to prove issues 4 and 5, the petitioners must lead evidence in support of their allegations at all the affected polling units. This will invariably mean that the petitioners should have to call over 200,000 witnesses who were PDP agents in the over 200,000 polling units of Nigeria. This is if polling points equated to polling units. We shall still remember that the tribunal had 180 days to tidy up the whole suit. More than half of these days are used for other Court proceedings than the call of witnesses, thereby leaving us with about 90 days for the calling of witnesses. Assuming Court sat from day to day without observing public holiday, then, how possible is it to call 200,000 witnesses within 90 days, with each witness led in Chief, crossed and reexamined! Even if it is argued that about half of the national polling units were involved in this dispute, how possible is it to call even 100,000 witnesses in 90 trial days. That would be about 1000 witnesses in one day. This is a ruse. The Tribunal failed to acknowledge that the law did not command impossibilities. This position of the Tribunal, supported by an avalanche of Supreme Court decisions, needs to be tested at the appellate Court in the coming months. While this position needs to be struck down for want of statutory or legal basis, election petition being sui generis, the hope of striking it down in the Nigerian context is practically an impossibility.

The author of this article must also point out the illegality of the Smart Card Readers as used by INEC to dupe Nigerians at the elections. The card was wasteful, punishable and illegal dummy sold to Nigerians. In a sane clime, the INEC Chairmen would be in gaol by now. Section 52 of Electoral Act prohibits electronic voting. Section 49 of the Electoral Act specifies procedure for accreditation and voting which does not admit of smart card authentiaction in any way. Yet, the INEC Exhibit 27 made the use of the illegal smart card compulsory for the election, with the nonuse of same punishable. And yet, the Electoral Act absolves an INEC official of any wrong doing if he refused to use the card. Wike v Dakuku 2016, curiously in the view of the author of this article, states that Smart Card Reader was not in conflict with the Electoral Act and the Constitution of Nigeria. The petitioners were well aware of this Supreme Court judgment until the uninterogated Wike v Dakuku 2016 wreaked havoc on them in 2019. If the law specified that all that a voter is required to do to be eligible to vote in an election is to present his voters card without further verification, INEC cannot arrogate the power of verification of the voter to itself by bringing in a compulsory Smart Card Reader. How the Supreme Court found that there was no conflict with extant laws in this adopted procedure is confounding. What is more conflicting than coming to vote in an election that the Constitution of Nigeria and the Electoral Act had imbued the voter with the constitutional right to vote on presentation of his voters card without further verification, only for him to be asked to be verified using a faulty machine that only malfunctions, hampers and delays the voting process. Worse still, he will be allowed to vote even when the machine has rejected his finger!!! This illegality, deceit and wastefulness was taken even further by the INEC when they made Nigerian public believe that election results would be transmitted electronically. The petitioners sheepishly followed suit in the whole illegality hoax that informed their furtive and prolonged arguments on INEC Server.

This takes us to issue 3 which is about the computation of the total votes garnered by the presidential election candidates to know who secured the highest number of votes. The Tribunal  maintained that the expert witness of the petitioners who did the computation of results for the court was incompetent. In fact, the trial Tribunal in its discretionary powers, decided that the expert witness did not qualify to be an expert witness in that regard because he was not an expert in Electoral Laws. This decision of the trial Tribunal does not go down well with the author of this article as the decision was not backed by any law in Nigeria. If this Tribunal  fought tooth and nail to retain a Nigerian whom the existence of his certificates is heavily in doubt as the President of the whole Nigeria, what justifiable discretion does the court now have to bar anybody who could do ordinary math from adding up elementary numbers. What is more; there is no law in Nigeria that specified the qualification of a witness that can add up electoral figures. The Evidence Act 2011 was turned upside down on several occasions. The computation of electoral votes fall way outside expert witnessing. It is within the competences and functions of the Tribunal to do the calculations or to call in a person to do the calculations for the Tribunal. In the end, the said computation was jettisoned, thereby making it impracticable to know if the votes as announced by INEC conflicted. While this position needs to be struck down for want of legal basis, the hope of striking it down in the Nigerian context is practically an impossibility.

Having said this much on the difficult terrains of the petitioners, it is now ripe for me to talk about the only possible issue that can be won at the Supreme Court. This is issue 1. Issue 1 talks about qualifications while issue 2 talks about false affidavit. The issue of false affidavit need not be discussed in this article before Issue 1 could be sustained.

On qualification, the contention of the author of this article is not that Buhari was not qualified for the presidential contest. The author lacks the capacity to make categorical statement on that. The contention, however, is that the petitioners have proved, that based on his application for the presidential election as a candidate, and the lack of vital evidence of the electoral umpire which is critical in this petition, Mr Buhari did not qualify to contest for the election. The 2nd Respondent was not able to show, through his election applications filed at the Tribunal, that he was indeed qualified to contest the presidential election. It is not the duty of the Tribunal to scout for evidence of qualification on behalf of the 2nd Respondent. The Court shall follow the Pleadings of the parties, and shall not allow the parties to depart from their Pleadings. The provisions of the Constitution of Nigeria on qualification to contest for president is as follows.

131. A person shall be qualified for election to the office of President if—(a) he is a citizen of Nigeria by birth ; (b) he has attained the age of forty years ; (c) he is a member of a political party and is sponsored by that politicalparty ; and (d) he has been educated up to at least the School Certificate level or its equivalent.

318 (1). "School Certificate or its equivalent" means—(a) a Secondary School Certificate or its equivalent, or Grade II Teacher's Certificate, the City and Guilds Certificate ; or (b) education up to Secondary School Certificate level ; or (c) primary Six School Leaving Certificate or its equivalent and—(i) service in the public or private sector in the Federation in any capacity acceptable to the Independent National Electoral Commission for a minimum of ten years, and (ii) attendance at courses and training in such institutions as may be acceptable to the Independent National Electoral Commission for periods totalling up to a minimum of one year, and (iii) the ability to read, write, understand and communicate in the English language to the satisfaction of the Independent National Electoral Commission ; and (d) any other qualification acceptable by the Independent National Electoral Commission.

Section 318 (1) is divided into two groups namely qualifications provable by the candidates (a&b) and qualifications provable by INEC (c&d). In the first group, it is either that the candidate has a secondary school certificate, or that he was educated to the secondary school certificate level. In the second group, the candidate must have a primary school certificate. This is because while a, b and c were joined by disjunctives; c and d were joined by a conjunctive. The literary meaning of this provision is that any candidate who belonged to the second group must present his primary school certificate in addition to the INEC satisfaction. It was pleaded and supported in evidence that Buhari did not present any certificate whatsoever in his application. That meant that he could not benefit from section 318 (1) (c&d) of the Constitution of Nigeria. The trial Tribunal tried so hard to muddle up these clear and distinct provisions of the Nigerian Constitution.

It must be stated for clarity that even if Buhari presented his primary school certificate or its equivalent, he would still have failed to win the resolution of that issue as the satisfaction or approval of INEC was not seen to have been obtained. INEC did not lead evidence as to what satisfied it to allow Buhari to contest the election. Court suo motu, and without evidence, gleaned presumed reasons to prove INEC satisfactions and approval of Mr Buhari. This is not our law. Tribunal showed the pleading of Petitioners on qualification but refused to show the Pleading of the Respondents in defence. Judgment however showed that the 2nd Respondent did not in fact rely on INEC discretionary powers as required by the Nigerian Constitution; yet, the Tribunal premised its judgement on such reliance.

It must also be noted that INEC discretionary powers can only be found in INEC documents like the electoral guidelines, regulations and the laws; and not on the opinions and behaviors of its human agents. There is nothing in the INEC guideline on how to prove educational attainment or INEC satisfactions or approvals other than production of certificates. The approval or satisfaction of INEC can only be found in a clear guideline, and not in the minds of the INEC officials. Court refused to find on pleadings of the parties and called finding of facts an investigation. INEC satisfaction or approval is not the same thing as the whimsical satisfaction or approval of INEC officials. INEC's satisfaction is not found in the satisfaction of INEC officials following their personal dictates and not the clear dictates of INEC regulations. INEC is an inanimate person working through human agents. The mind, soul and intention of INEC is not in the individual and whimsical minds, souls and intentions of its human agents. The mind, soul and intentions of INEC is found in INEC documents. It is the letter of these documents that the human agents of INEC implement. These documents are open to INEC agents and affected individuals alike. The wishes of INEC are to be found in its documents be they Rules or Regulations. To satisfy these wishes, one must respond to clear provisions of the Rules which shall apply equally to all candidates. The question as to the satisfaction of INEC can only be answered by showing the part of the Rules specifying how to provide or prove educational attainment and qualification and not an illegal presumption that if INEC officials allowed a candidate to contest, that the candidate has satisfied INEC. By allowing a candidate that did not meet INEC clear regulations on how and what to submit to INEC to contest elections, the INEC officials have performed outside their legal mandate;  and all those illegal functions are bound to be rendered void by the tribunal. Neither did INEC provide documents on its satisfying requirements for candidates that have primary certificates prior to the election nor did it present any evidence of such qualifying requirements at the tribunal. This is fatal to the 2nd Respondent who presume relied heavily on INEC discretionary powers.

We can now move to the candidates that fall under the first group above. The 2nd Respondent must rely as it were, not on the existence of a secondary school certificate, but on the proof that he attained secondary school certificate level of education. The submission of a school certificate to INEC carries with it the presumption of regularity on the Respondent. The burden of proving that the certificate is not true lies on the petitioners. There will generally be no requirement to prove the authenticity of the certificate or that Buhari actually had that level of education. However, the reverse is the case where there is no certificate attached. Where a candidate did not attach a certificate showing academic attainment or qualification as required by the INEC regulation, the mere affidavit of educational attainment other than the certificate, is not enough grounds to have the burden of proof on the petitioners. A challenge of the contents of an affidavit, in the face of no certified true copy of the lost documents, is a call on the respondent to come and prove the contents. The burden of proof was on the 2nd Respondent who had no presumption of law in his favour, and not on the petitioner. The contents of such an affidavit are documentary hearsay and thus incompetent, as the 2nd Respondent did not make the certificate which the affidavit alleges to prove. An affidavit of loss of certificate only proves the loss of the certificate but does not prove the existence of the certificate. Petitioners are contesting the existence of the certificate and not the possibility of its loss which the affidavit is all about.

The law is very clear on the qualification of candidates to contest the presidential election in Nigeria. The burden of proof depends on who is alleging. Allegations and refutal are not the same thing. Refutal only calls the person alleging to come and prove, while allegations calls on the person alleging to come and prove. An issue raised by a party can imply an allegation or refutal. Courts must place the burden properly on the person alleging and not the person refuting the allegation. If a party does not have a certificate but alleges that he has in an affidavit, the burden of proving that he has a certificate lies on him. The burden does not lie on the person refuting that he has the certificate. If the Supreme Court holds otherwise, then, the requirements for certificates in any applications has become redundant and an outright futility. Where a party loses a certificate, there are laid down procedures for obtaining a replacement. Where this procedure is not available to the party because of antiquity, then it all means that the party needs to go and rest as being out of circulation. An affidavit does not prove the presumption of the regularity of its content or exhibits where the deponent is not the maker of the content or exhibits of the affidavit.

This article does not hold any prospects for the petitioners in the contemporary Nigerian situation. The only time the Supreme Court can overturn the judgment of the Presidential Election Tribunal 2019 is if Buhari just disappears. The equation will change, and the power hawks who live on power being in the North will then see the "absurdities" in the Tribunal judgment.

Awkadigwe Fredrick Ikenna 
awkadigweikenna@gmail.com
08039555380

THE UNCONSTITUTIONALITY OF NIGERIAN ABORTION LAWS; THE RIGHT WAY TO GO.

Abortion in Nigeria is generally said to be illegal. It is a felony punishable by imprisonment of various terms depending on the gravity and location of the commission of the offence.

Abortion laws in Nigeria provide for the punishment of the person who performs the abortion, to the woman upon whom the abortion is performed, down to whoever assisted in the procurement or performance of the act.

There are, however, some differences between the provisions on abortion between the laws regulating, in the Northern and Southern parts of Nigeria. These differences sprout from the existence of two different laws for the two meridian poles of northern and southern parts of Nigeria, as encapsulated in the two major Federal Acts on abortion in Nigeria; namely the Criminal Code Act and the Penal Code Act.

The Penal Code Act applies to abortion committed in the northern Nigeria, while the Criminal Code Act applies to abortion committed in the southern part of the country. This duality of laws on the same subject matter, in the same country, is one of those offshoots of concerted efforts by the northern region of Nigeria to create room and make way for their Islamic way of life. Therefore, while the Criminal Code Act essentially lifted an English law on the offences against persons, and translocated it on the people of southern Nigeria In 1916, the Penal Code Act was made with an eye on its adaptation to suit the peculiarities of the local northern Nigerian people's way of life. As we shall see later, this adaptation made the Penal Code Act far more reasonable than the Criminal Code Act on abortion.

It must be clarified that while Nigeria is still using these archaic transplanted laws on abortion, the countries whose abortion laws Nigeria transplanted in the name of Criminal Code or Penal Code, have for a long time, altered those laws of theirs in line with reason and modern situations of life of their people. In contrast however, most Nigerian courts still will apply these archaic laws on abortion as they may have been slightly modified by some Nigerian case laws.

The subject matter of this article is whether these two Acts as it concerns their provisions on abortion are legal, constitutional and valid provisions. The author of this article contends that those provisions on abortion in both the Criminal and Penal Code Acts conflict with the Constitution of the Federal Republic of Nigeria 1999 as amended, and thus are void to the extent of the inconsistencies, and need to be struck down by a court of competent jurisdiction, with a requisite follow up to the Supreme Court of Nigeria.

Section 228 of Criminal Code Act provides as follows:

Any person who, with intent to procure miscarriage of a woman whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a felony, and is liable to imprisonment for fourteen years.

The far-reaching effects of this provision is that a literary construction of this section will reveal that even medical treatment of abortion by doctors to save the woman's life, and post abortion care for such women, are included here as a felony of abortion. Medically, miscarriages are classified into complete and incomplete miscarriages. Miscarriage medico-technically means abortion. When a woman has incomplete miscarriage and comes to the hospital, the  physician treats her by first converting the incomplete abortion to complete abortion. This he does whether or not the woman is with or without a child, in so far that there is Retained Products of Conception in situ. Also, because no law or exemption clause permits the physician to complete this process of miscarriage on this woman, the act of such physicians would therefore be literally unlawful, and against the provisions of the Criminal Code Act for doctors practicing in the South of Nigeria. This position has been modified by case law.

Section 232 of the Penal Code Act on the other hand provides:

Whoever voluntarily causes a woman with child to miscarry shall, if the miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment for a term which may extend to fourteen years or with fine or with both.

This provision, does not only eliminate the part about the woman being with a child or not, but also provides a caveat that abortion can be performed for the purpose of saving the woman's life. This is a great departure from the provisions of the Criminal Code Act on abortion.

In 1938, in the case of  R. v. Edgal, Idike and Ojugwu ,(1938) W.A.C.A. 133, Nigeria has allowed therapeutic abortion. Therapeutic abortion is solely to save the mother’s life or health. This has provided for the people of southern Nigeria, that second limb of the exemption clause found in Penal Code Act.

Earlier in the same year, in a particular English case, R v Bourne, per Judge Macnaghten, it has been held that abortion is allowed in order to save a woman’s life or her physical and mental health. This foreign court decision is only persuasive in Nigeria, as R v Edgal does not consider mental health. Therefore, while R v Bourne gives English physicians and women the legal access to procurement of abortion where the physical or mental health of the mother is in danger,  the Nigerian case of R v Edgal only permits abortion on a woman to save her life. A rape victim who gets pregnant from the rape in Nigeria, and whose life is not at the moment in danger of extinction, may find it difficult to access abortion legally in Nigeria. Her position is totally different from that of her contemporary in the jurisdiction where R v Bourne is the operational law.

Subsequently, many jurisdictions other than Nigeria, have enacted newer abortion laws that permit legal abortion where the certified physicians consider the abortion procedure necessary to save the mental and physical health of the mother. Nigeria has vehemently continued to follow Criminal Code Act, Penal Code Act, and R v Edgal. It must be noted that R v Bourne is not a Nigerian case, and Nigerian courts are not bound to follow the ratio or the orbiter. If for anything, R v Bourne can only persuade the Nigerian court.

The major upheaval in the critical review of the unconstitutionality of the abortion laws has happened in the United States of America in 1973, in the case of Roe v Wade. Roe has alleged that she is unmarried and pregnant; that she wishes to terminate her pregnancy by an abortion "performed by a competent, licensed physician, under safe, clinical conditions"; that she is unable to get a "legal" abortion in Texas because her life does not appear to be threatened by the continuation of her pregnancy; and that she can not afford to travel to another jurisdiction in order to secure a legal abortion under safe conditions. She claims that the Texas statutes are unconstitutionally vague and that they abridge her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.

United States Supreme Court, ROE v. WADE, (1973) No. 70-18, is argued on December 13, 1971, and decided on January 22, 1973. BLACKMUN, J., delivers the opinion of the Court.

The court does a comprehensive survey, in several aspects, including the history of abortion, for such insight as that history may afford them, and then examines the state purposes and interests behind the criminal abortion laws. The court discovers that the restrictive abortion laws are actually relatively new. Ancient religions have not barred abortion. Abortion laws are actually made to protect the mother's life and the father's right to his offspring, and not for the life of the unborn child. The American Supreme Court also observes as highlighted below:

The Physicians Oath is not uncontested even in Hippocrates' day; only the Pythagorean school of philosophers frowns upon the related act of suicide. Most Greek thinkers, on the other hand, commend abortion, at least prior to viability. For the Pythagoreans, however, it is a matter of dogma. For them the embryo is animate from the moment of conception, and abortion means destruction of a living being. The abortion clause of the Oath, therefore, "echoes Pythagorean doctrines," and Pythagorean Manifesto. The Physician Oath comes to be popular. The emerging teachings of Christianity are in agreement with the Pythagorean ethic. The Oath "became the nucleus of all medical ethics" and "was applauded as the embodiment of truth." Thus, suggests Dr. Edelstein, it is "a Pythagorean manifesto and not the expression of an absolute standard of medical conduct."

Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence. It has been argued occasionally that these laws are the product of a Victorian social concern to discourage illicit sexual conduct. A second reason is concerned with abortion as a medical procedure. When most criminal abortion laws are first enacted, the procedure has been a hazardous one for the woman. Abortion mortality has been very high. Even after 1900, and perhaps until as late as the development of antibiotics in the 1940's, standard modern techniques such as dilation and curettage are not nearly so safe as they are today. Thus, it has been argued that a State's real concern in enacting a criminal abortion law is to protect the pregnant woman, that is, to restrain her from submitting to a procedure that placed her life in serious jeopardy.

Modern medical techniques have altered this situation. Medical data indicate that abortion in early pregnancy, that is, prior to the end of the first trimester, although not without its risk, is now relatively safe. Mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than the rates for normal childbirth.

The third reason is the State's interest - some phrase it in terms of duty - in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception. The Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as the Supreme Court feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.

Court conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant.

The fetus is contended to be a "person" within the language and meaning of the Fourteenth Amendment.The Constitution does not define "person" in so many words. Section 1 of the Fourteenth Amendment contains three references to "person." The first, in defining "citizens," speaks of "persons born or naturalized in the United States." But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application. This means that prenatal lives are not expressly protected by the Constitution. Protection of prenatal life is thus essentially a state's moral obligation rather than constitutional duty, which must give way to the woman's constitutional rights.

Court observes that the pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus.Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. Court concede that they need not resolve the difficult question of when life begins. Court posit that when those that are trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at the point in the development of man's knowledge, is not in a position to speculate as to the answer.

Now,  the issue for determination is no longer about mental and physical health of the woman, but Roe's legal capacity and right to have abortion despite the fact that her mental and physical health are not in jeopardy. Roe alleges that she is unmarried and pregnant; that she wishes to terminate her pregnancy by an abortion "performed by a competent, licensed physician, under safe, clinical conditions"; that she is unable to get a "legal" abortion in Texas because her life does not appear to be threatened by the continuation of her pregnancy. She claims that the Texas statutes are unconstitutionally VAGUE and that they abridge her right of personal PRIVACY, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.

A three-judge District Court, which consolidates the actions, hold that Roe and Hallford, and members of their classes, have standing to sue and have presented justiciable controversies. Ruling that declaratory, though not injunctive, relief is warranted, the court declares the abortion statutes void as VAGUE and overbroadly INFRINGING those plaintiffs' Ninth and Fourteenth Amendment rights.

Court goes on to also hold that contrary to appellee's contention, the natural termination of Roe's pregnancy does not moot her suit. Litigation involving pregnancy, which is "capable of repetition, yet evading review," is an exception to the usual federal rule that an actual controversy must exist at review stages and not simply when the action is initiated.

The United States Supreme Court goes further to hold that State criminal abortion laws, like those involved, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a "compelling" point at various stages of the woman's approach to term.

However, the State is said to have an important and legitimate interest in preserving and protecting the health of the pregnant woman, and it has still another important and legitimate interest, as well as moral obligation, I must quickly add, in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes "compelling."

Court observes that with respect to the State's important and legitimate interest in the health of the mother, the "compelling" point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth.

It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like.

Court therefore concluded that this means, on the other hand, that, for the period of pregnancy prior to this "compelling" point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated, for whatever reasons not limited to saving the woman's life. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.

With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother. This state interest is questionable as we see as it has been argued that fetal life is not protected by the Constitution.

The United States of America Supreme Court therefore drove down the nail on the coffin of the Penal Code on abortion by maintaining Article 1196 of the Texas Penal Code, in restricting legal abortions to those "procured or attempted by medical advice for the purpose of saving the life of the mother," sweeps too broadly. The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, "saving" the mother's life, the legal justification for the procedure. The statute, therefore, cannot survive the constitutional attack made upon it here.

As a matter of clarification:

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. 

(d ) The State may define the term "physician" to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined. 

Bringing the argument back home to Nigerian Court and situation, it is the obvious considered view of the author of this article that no Nigerian court will hold otherwise.

The provisions in the Nigerian Constitution as to the FUNDAMENTAL RIGHTS of Nigerian people, and the relationship between the State and it's people is clear, even clearer and better defined than that of the relevant Amendments of the American Constitution. According to the learned Justices in Roe v Wade, 'where certain "fundamental rights" are involved, the Court has held that regulation limiting these rights may be justified only by a "compelling state interest"'. In Nigeria, the compelling state interests are adequately encapsulated in the provisions on the fundamental rights. No such compelling state interests are found in the Nigerian Constitution.

Some provisions on the fundamental rights in the Constitution of the Federal Republic of Nigeria 1999 as amended are hereby laid out.

Section 35 (1) of the Constitution states:

Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law

Section 36(12) of the Constitution states:

Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law, and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.

Section 37 states in part:

The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.

Section 38 (1) states:

Every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, PRACTICE and observance.

Section 45(1), while sparing derogation of Liberty and Thought, states:

Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society
(a) in the interest of defence, public safety, public order, public morality or public health; or
(b) for the purpose of protecting the rights and freedom of other persons.

The derogation of Privacy is purely for defence, public safety, public order, public morality, public and public health. There is no mention of private morality or private health. This simply means that the Constitution of the Federal Republic of Nigeria, protects private health and private morality from state interests and interferences. The State is barred from interfering with the private health and morality of its competent persons.

The combined effects of the above provisions in the Nigerian Constitution is that the ratio behind the remarkable decision of the Supreme Court of the United States of America in Roe v Wade is even more persuasive and more applicable in Nigerian situation than in the United States legal framework. While the Justices in the Roe v Wade were scratching for constitutional basis of Liberty as a fulcrum for hanging their decision, the issue of Personal Liberty and Privacy are clearly provided for in our own Constitution.

Nigerian courts are not bound by United States Courts decisions on the legality of abortions or otherwise, neither are Nigerian Courts bound to follow the ratio in the decisions of the American courts in reaching judicial conclusions in Nigeria. However, Nigerian courts are not averse to justice, justifications and reason, neither are they without scruple and wisdom. The wisdom in Roe v Wade is unparalleled. It only requires that a proper plaintiff is presented in the Nigerian court to permanently resolve this crucial and protracted statutory and constitutional anathema.

The provisions on abortion in both Criminal Code Act and Penal Code Act are not only oppressive and restrictive on the patient and her physician, they, as have been clearly and convincingly canvassed, violate the constitutional rights of Dignity, Privacy, Liberty and Life of the woman. The constitutional derogation of these rights is not found in the field of a woman's sexual orientations or fertility control. The caveat on saving of the woman's LIFE or HEALTH, as an exception to the criminality of abortion, is so VAGUE. A vague abortion law violates the Constitutional rights of the woman, as well as the legal requirements for a mandatory definition of offences in the provisions of statutes or subsidiary legislations, for such provisions to have valid prosecutorial legal effects, as enunciated in section 36(12) of the Nigerian Constitution. This is because the life or health in question is not unambiguous enough as to include or exclude the woman's social, mental, economic, physical or religious life or health. This ambiguity and vagueness in the definition of the offence of abortion in both Code Acts, leaves the woman and her attending physician in a state of debilitating bewilderment as to how to enjoy their enshrined constitutional rights on crime definition in statutes, and their fundamental rights of thought, conscience, religion, liberty, life and privacy.

We do not need the National Assembly to make for us another abortion laws that preserve the woman's constitutional rights of privacy and liberty. No. All we need is for Nigerian Supreme Court, in an orchestrated suit in a legally allowed procedural crescendo, to make a judicial statement, rendering the two archaic abortion Acts void, to the extent of their inconsistencies with the Constitution of the Federal Republic of Nigeria 1999 as amended. The Supreme Court can also preserve the State functions of regulating abortion practices in the second and third trimesters as posited in Roe v Wade. This is the right way to go.

©Awkadigwe Fredrick Ikenna (MBBS, LLB, MWACOG, DSC) 
08039555380
Email: awkadigweikenna@yahoo.com


This article can be read and shared purely for enlightenment and education of the people of Nigeria. The reader can also freely comment and argue with the thoughts of this author.


© Copyright 2017 Ikenna Fredrick Awkadigwe. All rights reserved. No part of this publication is permitted to be used in any way, copied, photocopied printed, reproduced, transferred, adapted, argued in any fora, used in Court or recreated in any form or resemblance whatsoever, without the written approval and license of the author, Ikenna Fredrick Awkadigwe.