Is abortion not related to issue of privacy?

Under our law in Nigeria, abortion is criminalized.

Any person  (This covers everyone including Doctors, Boyfriends, Herbalists, parents, friends, among others) who intend to procure miscarriage of a woman whether pregnant or not, and “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….” [1]

A woman with the intention of procuring her own miscarriage, “performs the same acts, is likewise guilty.[2]

Also, any person who unlawfully supplies or procures for anyone anything, with intention that it will be used for the miscarriage of a woman who may or may not be pregnant, is also guilty of a crime.[3]

 

[1] Section 228 of the Criminal Code

[2] Section 229 of the Criminal Code

[3] Section 230 of the Criminal Code

Child rights: Parental rights and Custody of child/Discipline of child in Nigeria

In Nigeria, parental rights developed from customary and common law, but are no longer relevant in cases of custody or guardianship, where the courts consider only what will best promote the child’s welfare.

Parental rights include the “rights, powers, liberties and duties, which a parent has with respect to his or her child”[1]. This parental right is covered under various international conventions guaranteeing on the rights of the child in which Nigeria is a signatory.

Under the Convention on the Right of Child, Nigeria (a State party) “…shall respect the responsibilities, rights and duties of parents or, where applicable, members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate, direction and guidance in the exercise by the child of the rights recognized in the present Convention”

The convention recognizes the right of the parents to the extent of that it is not contrary to the rights of a child.

The convention recognizes the right of the parents to the custody of a child only when such is not in contrary to the best interest of a child.

Parental rights to the custody of the child include the right to physical custody and to determine education, religion and other moral values of the child until he, or she reaches the age of discretion. A child cannot be made to receive religious education or instruction or take part in any religious ceremony which is not his own or approved by his parents or guardian.

This right also includes the right to the child’s services,[2] the right to discipline and chastise the child, which “recognizes the supervisory role which a parent has in respect of a child who is under his custody, care or control”[3]

Any discipline meted out by parents must not however be excessive else, it may lead to a criminal offence, depending on the circumstances.[4]

Parents have the right to consent to the marriage of their children and receive dowry under Islamic or customary law[5]

[1] J. M. Eckeedar “What are Parental Rights?” (1973

[2] Animashawun v. CT Wang 1974 11 CC HCJ 1793 quoted by E.N.U. Uzodike, Implications and Limits of Parental Rights in Nigeria, published in the African Society of  International and Comparative Law, Vol.2 pt 2, p. 282

[3] E.N.U Uzodike, op. cit., p. 287

[4] Section 295 OF THE Criminal Code

[5] Osanwonyi v. Osanwonyi (1973) 3 UILR 527.

Right to privacy of communications

Generally, Nigerians have a right to privacy of their correspondence, telephone conversations and telegraphic communications. It also covers issues like telegrams, letters, or packages sent by ordinary or special post, correspondence done through internet, social media and so on. The content of the correspondence is to be viewed by the sender alone except if it is exposed in such a way that other person would know its content.

It is a criminal offence to stop, search, rob, secrete or destroy postal matter or telegram[1]. Every attempt to regulate social media has resulted in serious resistance because right to privacy of communication is likely to be more honored in breach.

However, Section 45 of the Constitution have made this right not absolute thereby making the police, security services etc to tamper with correspondence on grounds of interest of public security, public order, public peace among others.

[1] Section 161 and 162 of Criminal Code

My right to fair hearing (Introduction)

  • Introduction

The right to fair hearing is also known as the principle of natural justice encapsulated in the two traditional latin maxims: audi alterem patem and nemo judex in causa sua. The right to fair hearing entails the following:

Easy access to the court/Tribunal

  1. The right to be heard;
  2. The impartiality of the adjudicating body; and
  • Speedy trial

Where any of these is lacking, there is absence of fair hearing[1].

Audi alterem patem simply means that the accused be given opportunity to be heard[2] while Nemo judex in causa sua principle demands that justice must not only be done but must be seen to be done. The question here is not whether the judge was biased in fact. Rather, it is whether a detached onlooker looking at what the court or judge has done will have the impression that the judge was biased.[3]

The adjudicator must not be interested in any of the parties or the subject matter by virtue of his relationship with any of them or the outcome of the proceedings[4]. If the person deciding your fate is related or appointed by your accusers, there may be element of bias whether in court or at any administrative panel.

[1] See Effiom Vs. The State (1995) 1 NWLR (pt. 373) 507.

[2] See S.287 CPA. See Otapo Vs. Sunmonu (1987) 5 SCNJ 57.

[3] Ajibaiye Vs. Ajibaiye (2007) All FWLR (pt. 359) 1321.

[4] See Garba Vs. Uni-Maid (1986) 1 NSCC 245; Yabugbe Vs. COP (1992) 4 NWLR (pt. 234) 152

All I need to know when I am facing trial-Tribunal-Administrative Panel

If you or any relative is facing Administrative panel, Tribunal or court trial, you need to take note of the following:

Publicity of Trial

Publicity of trial here means trial in a place where the public has unimpeded access. In such trial, open court shall be where the trial will take place not Judges chambers most especially where members of the public are not excluded from the trial.[1]

Presumption of innocence

Every person charged before a court of law for any offence shall be presumed innocent until his guilt is established in court. To do otherwise is to ask the accused to establish his innocence.[2]

Information of crime committed

The accused shall be informed promptly in the language he understands and in details of the nature of the offence. This is in addition to the provisions of Section 35 (3) dealing with arrest and detention. Note that failure to inform the accused of the nature and/or details of an offence lesser in nature than the one charged is not fatal if the accused has been informed of the graver offence.[3]

Adequate Time and facility to prepare for defence

An accused person has right to adequate time and facilities for the preparation of defence. The time being referred to in this subject matter relates not only to the first day to which his case is slated for the defence but also includes any other reasonable adjournment that may be sought by the defence.[4]

Note: the court may not tolerate unreasonable requests for adjournment.[5]

Where adjournment is sought to procure attendance of a witness, the accused must show:

  1. That the witness is material
  2. That he has not been guilty of neglect in procuring him
  • That he can procure his attendance for a certain date.

Note: “facilities” as used in the sub-section includes making available to the accused the proof of evidence including witness statements in the case.

 

Right to Counsel of his own choice or defend himself

This right is simply means that a person cannot be denied a right to a counsel/lawyer of his choice neither can a counsel/lawyer be imposed on him if he chooses to defend himself. [6]

 

Examination of Prosecution Witnesses and present his witness

The accused has a right not only to call and examine his witnesses but also to cross-examine the witnesses called by the prosecution. This is a mandatory provision in the constitution.[7] Any contrary position will fail.

 

Right to Interpreter

An accused person has right to be informed promptly and in a language he understands, and in detail, the nature of the offence for which he is to be charged. Failure to provide one where one is required is fatal to the proceedings and any decision reach against you will fail.[8]

Where one is provided and found to be incompetent, any conviction based on it is liable to be quashed[9].

The provision of interpreter should be at no cost to the accused.

However, where the accused fails to inform the court of his defect in the language of the court, the trial will stand as the failure will be treated as a mere irregularity[10].

 

Right to silence

This right is both constitutional and statutory.[11]

NOTE: In addition to these various constitutional provisions, there is statutory provision for Mandatory Legal Representation in capital offences.

 

[1] S. 36 (4) of the 1999 Constitution

[2] Eyu Vs. The State (1988) 2 NWLR (pt. 78) 602. Okoro Vs The State (1988) 12 SCNJ 19. Uso Vs COP (1972) 11 SC 37. See the exceptions  in SS. 141 (3)(b) & 142  of the Evidence Act. See the proviso to S. 36 (5) CFRN.

[3] Sections 36(6)(a), 179 (2) CPA; 218 (2) CPC; Maja Vs. The State (1980) 1 NCR 212, Nwachukwu Vs The State (1986) 4 SC 378.

[4] See Section 36 (6)(b) of the 1999 Constitution, Udo Vs The State (1988) 3 NWLR (pt. 82) 316. See also Gokpa Vs. IGP (1961) 1 All NLR 423

[5] See   Yanor Vs The State (1965) 1 All NLR 193; Shemfe Vs. COP (1962) NNLR 87.

[6] S 36 (6)(C) of the 1999 Constitution

[7] See Section 36 (6)(d) of the 1999 Constitution, Tulu Vs Bauchi N.A (1965) NMLR 343; Idrisu Vs. The State (1967) 1 All NLR 32.

[8] See Section 36 (6)(e) of the 1999 Constitution, Anyanwu Vs The State (2002) 13 NWLR (pt. 783) 107.

[9] Ajayi Vs Zaria N.A.(1964) NNLR 61.

[10] Udosen Vs. The State (2007) All FWLR (pt. 356) 669. See also The State Vs Gwonto (1983) 3 SC.67

[11] See– Sections. 36 (11) of the 1999 Constitution, 160 (a) of Evidence Act; 287 (1)(a) CPA; 236 (1)(a) CPC. See also Sugh Vs The State (1988) 2 NWLR (pt. 77) 475.

They set up a panel for me at work/office. Do I deserve fair hearing?

Anyone can be accused of professional misconduct at his/her place of work or at any point in time in his/her career and be called to face Administrative panel or a professional Disciplinary Committee. Since the outcome of the Panel/Committee will decide your fate, it is important that the rule of Natural Justice be followed so that you would not be maliciously indicted on the altar of bias. You need virtually all rights listed under “All I need to know when I am facing trial/ Tribunal/ Administrative Panel” under Right to fair hearing.

They are prosecuting me now over a last year matter on the ground that it has now become an offence this year

Such prosecution is illegal. Subject to the provisions of the constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty for the offence is prescribed in a written law. Such offence and conviction must be known to law.[1]

Moreover, conviction on retro-active legislation is unlawful. This means that a person shall not be convicted on account of an act which at the time it took place, did not constitute an offence and no penalty shall be imposed for any criminal offence heavier than that in force at the time the offence was committed.[2]

However, if the offence you are being charged now was an offence committed years ago and constituted a crime when it was committed without timeframe which we lawyers call statute-barred, you cannot invoke retro-active legislation as a defence.

[1] –Section 36 (12) of the 1999 Constitution See Aoko Vs. Fagbemi (1961) 1 All NLR 400; A.G.F. Vs. Isong (1986) 1QLRN 75

[2] Section 36 (8) of 1999 Constitution

Another trial on the same criminal offence I have been convicted/acquitted/ or granted Pardon. Help me!

Do not panic as such action will fail. The rule is one trial for one offence. It is popularly known as the rule against double jeopardy[1].  All you just need is to show the following:

  1. a) that the first trial was on a criminal charge;
  2. b) that the trial was by a competent court;
  3. c) that the trial ended in a conviction or an acquittal;
  4. d) that the offence is the same as the first or one for which the accused could have been convicted at the first trial although he was not charged with same.

On pardon, once a person has been pardoned for an offence he cannot be tried for the same offence nor be made to suffer disabilities on that account again[2].

[1] – S 36 (9 of the 1999 Constitution; Nafiu Rabiu Vs The State (1980) 8-11 SC. 130

[2] Section 36 (10) of the 1999 Constitution; Falae Vs Obasanjo (No. 2) (1999) 4 NWLR (pt. 599) 476; S.221 (1)(b) CPA

My right to Personal Liberty (Introduction)

  • Introduction

Right to personal liberty is one of the most important of all rights with a wider scope that covers other rights such as right to movement, rights to assemble and associate. This is a right where everyone whether you are a Nigerian or Non-Nigerian cannot be subjected to any arrest, imprisonment and any other physical cohesion contrary to the law under any guise.

The court simply put it that “Personal liberty means privileges, immunities, or rights enjoyed by prescription or by grant. It denotes not merely freedom from bodily restraint, but rights to contact, to have an occupation, to acquire knowledge, to marry, have a home, children, to worship, enjoy and have privileges recognized at law for happiness of free men.”[1]

Section 35(1) of the 1999 Constitution provides:

 

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

 

Before this right can be deprived, certain situations must be complied with as specified in the constitution and authorized by the law such as power to arrest a person based on the order of a court or when it is reasonably necessary to prevent a person from committing a crime. A person can also be deprived of this right upon reasonable suspicion of committing an offence. Some certain situations are discussed under sub-headings under the right to personal liberty.

[1] Adewole v. Jakande (Alhaji) (Governor Lagos State) (181) 1 NCLR 262 at 278 HC Lagos

Who can carry out Arrest?

The powers to arrest are vested in the police. This will enable them to carry out their task of detecting and catching criminals and suspects for trial by court. Our advocacy in this area is that some of our dear police friends, should not abuse this power. People can legally challenge abuse of power of arrest.

A private person can also arrest a suspect where the police are not around. As a law abiding citizen, DO NOT beat the suspect or kill him/her because the person you just arrested is still a suspect who might be innocent. Do not detain the person; take him to the nearest police station. Police will handle the rest. But if you doubt whether justice will be served, you can notify us. We can inform the leadership of the State Police Command or the National headquarters for proper follow up and monitoring. Do not kill anyone as people often raise force alarms against their perceived enemies or rivals with sole aim of getting them lynched. Taking the life of another is a murder which may lead to being sentenced to death also.