ADDRESS DELIVERED BY MR. ANTHONY IDIGBE (SAN) CHAIRMAN, CAPITAL MARKET SOLICITORS ASSOCIATION ON THE OCCASION OF COURTESY VISIT TO THE SECURITIES AND EXCHANGE COMMISSION ON 7TH MARCH, 2002 Posted Friday, March 22, 2002 by toney
INTRODUCTION

It gives me great pleasure to lead the delegation of members of the Capital Market Solicitors Association as its Chairman on this auspicious occasion of our first courtesy visit to the Securities and Exchange Commission the apex regulatory authority for the capital market in Nigeria. We are indeed delighted at the warm welcome we have received from you Mallam Suleyman Ndanusa the Director General of the Securities & Exchange Commission (SEC) and other Officers of SEC.

The Capital Market Solicitors Association is a young professional association formed in October 2001. Membership of CMSA consists of law firms duly registered by SEC to act as Capital Market operators in the capacity of solicitors. It was borne out of the realisation that there is need to have a forum of legal practitioners more particularly targeted to protection of the general interest of lawyers involved in capital market operations or transactions. It also has the objective of creating a platform for legal practitioners to effectively participate in the policy and regulation process within the capital market. Other objectives include setting standards of conduct and practice for its members through codes of conduct, checklist and training.

RELATIONSHIP WITH NIGERIA BAR ASSOCIATION (NBA)

I am happy to inform you that the Nigeria Bar Association at its Annual Conference held at Calabar in August 2001 resolved to encourage sectional groupings of legal practitioners so as to encourage specialisation. The NBA has been duly informed of our existence and we look forward to a mutually beneficial relationship with the NBA. In any event we note that CMSA is no different from other existing sectional groupings of lawyers such as International Law Association, Maritime Law Association, etc.

SEC AND REGULATION OF CAPITAL MARKET

CMSA has observed with satisfaction the effort of SEC at regulation of the Capital Market in Nigeria. Particularly we laud your effort at encouraging trade or professional groupings of Capital Market Operators. CMSA also commends the effort of SEC at checking abuses in the market through its Administrative Proceedings Committee (APC).

Whilst acknowledging the fact that SEC has always encouraged us as soon as the Commission became aware of the formation of CMSA, we regret to observe that the Association is not represented like other trade groupings in the capital market on the Administrative Proceedings Committee (APC). We therefore request for the immediate provision of a space for the Association on the Panel. It cannot be overemphasized that since the Panel is quasi-judicial, the skill and knowledge of our members will be, indeed, invaluable to the process.

POLICY PROCESS IN THE CAPITAL MARKET

CMSA notes that SEC has a major role to play in the policy making process within the capital market. This is as a result of the powers given to SEC under the Investment and Securities Act 1999. Apart from the powers to issue directives to capital market operators, SEC can also make rules for the regulation of the market. No doubt exercise of these powers by SEC helps set policy in the market apart from the provisions of the substantive enactment. CMSA suggests that policy action of SEC should be based on prior consultation and research involving all stakeholders in the capital market. In this regard we commend the effort of SEC in setting up the Capital Market Operators Meeting which holds quarterly. However, it is to be noted that members of CMSA have not been involved in the policy making process within the capital market. We believe that Capital Market Solicitors in the policy process can directly attribute some of the weaknesses in the system to lack of adequate participation.

PARTICULAR AREAS OF POLICY ACTION

MARKET ABUSES

We believe strongly that market abuses such as insider trading can be controlled through a regulatory regime that eliminates the information asymmetry between the insider and the investing public. CMSA is in a veritable position to assist SEC in the formation of regulations in this regard. Also there should be clear civil and if necessary criminal sanctions for violation of non disclosure requirements imposed on insiders; the rules as to
Non-discloseable information or when information can be disclosed and to whom must be clear.

CONFLICT OF INTEREST

Recent events in the capital market such as collapse of quoted companies and allegations of misconduct against some professionals in the capital market have highlighted the need to review the rules as to conflict of interest and set new standards of conduct for professionals such as lawyers and accountants. CMSA again has the capacity to assist the Commission in this regard.

CORPORATE GOVERNANCE

Although SEC is already working on a code of conduct on corporate governance for public companies in Nigeria, CMSA believes there is need for legislative intervention. Clearly, a code of conduct without sanctions may turn out a toothless bulldog. Also, the standard expected of directors in corporate governance must be increased and there must be clear administrative actions for breach of those standards, such as administrative fines, and blacklisting from other directorships. Anything less may not result in improvement in corporate governance in Nigeria. CMSA offers the skills of its members in the search for better corporate governance in Nigeria.

STATUTORY RELIEFS

In view of the smart attempt of Capital Market Operators to avoid contractual liability to either their client company or the investing public through various agreements or limitation of liability or disclaimers, it is necessary to give statutory relief to the investing public or client companies. Capital Market Operators should not have the capacity to contract out of such statutory relief.

AMENDMENT OF ISA

CMSA recently heard of attempts at the National Assembly to amend the ISA within the next two weeks according to recent news reports. Although the CMSA supports amendment to ISA to resolve areas of conflict and give more pungency to the regulatory framework of the capital market, the process of such amendment must be transparent and involve due consultation with all stakeholders in the capital market. In the light of the above, CMSA calls on the House of Representative and Senate of the National Assembly to hold public hearings on the proposed amendments. This will offer stakeholders such as CMSA the opportunity to contribute their specialised knowledge to the framing of any necessary amendments.

CMSA ACTIVITIES

We also wish to seize this opportunity to inform the DG of SEC, that the CMSA is planning its first business luncheon for the end of April 2002. We are counting on the support of SEC in the successful hosting of our first business luncheon and look forward to seeing the D-G at the event.

Once again, we thank the DG SEC and other officers of SEC for giving us the opportunity of this courtesy visit during which members of CMSA have had the privilege of greater insight into the impact or the operations of SEC within the capital market and economy in general.

Thank you.



ANTHONY I IDIGBE SAN
CHAIRMAN CAPITAL MARKET
SOLICITORS ASSOCIATION

OVERVIEW OF HUMAN RIGHTS AND THEIR CORRESPONDING DUTIES IN CONTEMPORARY NIGERIA Posted Thursday, September 20, 2001 by toney

OVERVIEW OF HUMAN RIGHTS AND THEIR CORRESPONDING DUTIES IN CONTEMPORARY NIGERIA
- ANTHONY I. IDIGBE, ESQ., SAN.

This article is the result of the privilege I had sometime in the year 2000 to attend the usual Saturday Forum with the President of the Federal Republic of Nigeria, Chief Olusegun Obasanjo. The theme of that particular forum was "Human Rights and Their Corresponding Duties". Invited to that meeting, were members of the human rights community, representatives of the NBA, the media, student representatives, security agencies, top government officials whose activities affect the rights of citizens and private legal practitioners like my humble self. The discussions were candid and frank and I must commend the President for instituting such a meeting. From information available to me, these meetings are still going on strong. It is, indeed, a veritable feedback mechanism that enables the President to directly feel the pulse of the people. Unfortunately, since these are private meetings, the public is deprived of some of the far-reaching outcomes of these meetings. It is for this reason that I have decided to put down these words, admittedly, inspired by my encounter with the President at his Saturday Forum. However, this is by no means a summation of proceedings of the Forum. It is merely my own thoughts as inspired by that meeting.

I intend to first of all discuss what is meant by "human rights" and then consider its different dimensions. I will also look at "human duties". Thereafter, I will look at our statute books to see how far these concepts have been internalised in our legal system. Where I do identify any shortfall, I will try to rationalise it. Finally, I will end with a few suggestions on how to improve the human rights situation in Nigeria. However, before I proceed further, I will like to quickly apologise that I intend to adopt a wholly legalistic approach to this paper.

A right can be said to be an obligation which others owe to a person. This obligation owed by others to a person is a legal right where it is enforceable by legal process. It may consist of a claim against those who owe the obligation or simply of the person's ability to do as he or she pleases with others obliged not to interfere.

The corollary of a legal right is a legal duty. Duty is the obligation we owe others either to do or not to do a thing. It follows that for every right there is a duty and for every duty somebody else has a right. They are like two sides of a coin.

Human right is a specie of legal right that pertain to mankind as a whole or all persons by virtue of their being "moral and rational creatures" (Ogbu 1999). Without going into historical excursion as to the origins of the concept of fundamental human rights, suffice to say, that fundamental human rights are those rights said to attach to every human being and of an inalienable character.

Therefore, such rights cannot be withdrawn or taken away and are said to be inherent. The extent of these rights seems to vary from society to society but are ever expanding as members of every society continue to move their claim from lex ferenda to lex lata that is, from moral right to legal right. This is so inspite of effort to harmonise and universalise fundamental human rights through instruments such as the Universal Declaration of Human Rights by the United Nations and the African Charter on Human and Peoples Rights. In other words what would constitute fundamental human rights tomorrow may be quite different from what it is today.


Again, there are many dimensions of human rights. It can be looked at from the point of view of:
a) Personal rights such as right to life
b) Political rights e.g. freedom of expression
c) Proprietary rights e.g. right to own property, privacy, etc.
d) Procedural or due process rights e.g. fair hearing, and
e) Equality right e.g. freedom from discrimination on basis of race, religion, etc.(Ogbu 1999)

Other dimensions are historical or generational. The first generation was the fight for civil and political rights as well as individual liberty from arbitrariness. The next generation consist of economic, social and cultural rights whilst lately we have a new generation called solidarity rights. The question has always been asked which of these generations of rights is superior to the other. Do we subjugate civil and political liberties in order to achieve economic, social and cultural rights of the people? The 1999 constitution of the Federal Republic of Nigeria, just like the 1979 constitution on which it is modeled, seems to put what would be mostly regarded as economic, social and cultural rights under Chapter 2 which is non justiciable. In other words, they do not even acquire the toga of legal rights at all. If you recall our earlier definition of legal right, it is a legally enforceable obligation owed to us by others. It would seem that our constitution has taken a position that civil and political rights are superior to economic, social and cultural rights that is why they (economic, social and cultural) are not made justiciable.

Without getting into the fray, it is safe to conclude that no set of human rights is superior to the other. They are all interdependent and all- inclusive. (See Vienna Declaration 1993, World Conference on Human Rights). The question then is why did our constitution subordinate some specie of human rights to others. Many reasons can be ascribed for this malady including our state of economic development and political aspirations.

Yet another dimension of human rights, is the classification into positive and negative rights. Negative rights are those that are merely restraining e.g. right to life, etc. Positive rights impose duty to act e.g. provide health care.

Finally, human rights can be viewed from the dimension of individual and group or peoples rights. Individual rights are said to be those rights attaching to every individual human being. They are inalienable and universal. Group or peoples rights are said to be those rights enjoyed by virtue of membership of a particular community. For illustration, the right to property and to life are individual rights whilst freedom from discrimination and freedom of religion are group rights.

A lot have been said on human rights and I need not elaborate further on these rights. Suffice to say that human rights are pervasive, universal, inalienable and ever expanding. They cover areas such as right to life, property and privacy, right to dignity, freedom of speech, conscience and religion, freedom of association, assembly, fair hearing and natural justice, right to good working conditions and health, right to education, etc. It also covers peoples rights such as equality of peoples and ethnic groups, rights of self determination and existence, right to free disposal of natural wealth and resources, right to economic, social and cultural development, right to good environment and the equal enjoyment of common heritage of mankind. As stated earlier, the exact extent of fundamental human rights is constantly expanding. It is therefore wrong to seek to know the extent of human rights in Nigeria and consequently human duties by simply looking at the 1999 constitution. As stated earlier there are many human rights in Nigeria, which are not justiciable under the 1999 constitution but are justiciable under other legal instruments. We need to look at other laws that help expand these rights, both local and international.

Treaty obligations of Nigeria have substantially expanded the scope of these rights and therefore the attached duties. The Universal Declaration of Human Rights and recently the African Charter on Human and Peoples Rights have expanded the scope of human rights in Nigeria. The African Charter is now part of our domestic law by virtue of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Chapter 10 Laws of Nigeria 1990. The Supreme Court recently confirmed this position and under this Charter many social, economic and cultural rights are given to Nigerians which are not in the 1999 constitution e.g. right to good working condition, health, education, etc.(See Sanni Abacha v Fawehinmi (2000) 4 S.C (Pt 2) 1). As far as group rights are concerned, the African Charter has an interesting provision in Article 21(1) that is, right to free disposal of natural wealth and resources. It provides as follows:-

" All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it"

Pursuant to these rights, Nigeria has witnessed a wave of agitation particularly on the basis of peoples' rights. They range from agitation over control of natural resources, ethic intolerance, and environmental activism to religious extremism.

Other international treaties signed by Nigeria and which have expanded the scope of human rights in Nigeria are International Convention on Human Rights, International Convention on Elimination of Discrimination Against Women and International Convention on the Rights of the Child.

In the desire to assert these rights, it seems that Nigerians have totally forgotten the other side of the coin, viz., duty owed to others in return for which these human rights are given. It is my submission that this error has partly contributed to the extremism of agitation for human rights in the area of religion, self -determination, resource control and environment. People are simply not aware of their corresponding duties. The question that then arises at this stage is, what are the corresponding duties to enjoyment of human rights and where do you find them?

I will take the last part of the question first. Apart from the 1999 Constitution, you will find various duties imposed on citizens regarding human rights of other citizens under the following -
1) Common law
2) Various statutory duties imposed on citizens, and
4) Generally, under the jurisprudence of the world, that is, international law, in so far as it has been made part of domestic law.

The 1999 constitution in Section 24 provides as follows:

"It shall be the duty of every citizen to-
(a) abide by this Constitution, respect its ideals and institutions, the National Flag, the National Anthem, the National Pledge, and legitimate authorities;
(b) help to enhance the power, prestige and good name of Nigeria, defend Nigeria and render such national service as may be required;
(c) respect the dignity of other citizens and the rights and legitimate interests of others and live in unity and harmony and in the spirit of common brotherhood;
(d) make positive and useful contribution to the advancement, progress and well-being of the community where he resides;
(e) render assistance to appropriate and lawful agencies in the maintenance of law and order; and
(f) declare his income honestly to appropriate and lawful agencies and pay his tax promptly."

Unfortunately, these citizens' duties seem too general in nature and as such can not secure the fundamental rights of citizens in Chapter 4 of the Constitution. Also, these duties are not legally enforceable since they are contained in Chapter 2 (Directive Principles of State Policy) and are therefore non-justiciable. It would, therefore, seem that the 1999 Constitution does not provide adequate correlative duties to ensure that human rights are guaranteed. Inspite of this inadequacy as will be seen shortly, there are other provisions both in the Constitution and other statutory instruments, which give some comfort that human rights can fairly, be secured in Nigeria.

One of the best-articulated documents on the duties of the citizen is to be found in the African Charter on Human and Peoples Rights. Articles 25 and 26 of this Charter imposed two duties on states parties - 1) Duty to promote rights and freedoms contained in the Charter and 2) Duty to guarantee the independence of the Court and to allow the establishment of national human rights institution to promote and protect human rights. More importantly, however, the Charter imposed the following duties on all individuals within the state party.

1) Article 27. Duty to the family, society, the state and the international community, including duty to have due regard to the rights of others.
2) Article 28. Duty to respect and not to discriminate against fellow human beings.
3) Article 29 (1) Duty to preserve the harmonious development of the family, to respect his parents and to maintain them in case of need.
4) Article 29 (2) Duty to serve his national community by placing his physical and intellectual abilities at its service.
5) Article 29 (3) Duty not to compromise the security of his state of origin or residence.
6) Article 29(4) Duty to preserve and strengthen social and national solidarity particularly where the latter is threatened.
7) Article 29 (5) Duty to preserve the independence and territorial integrity of his state/country.
8) Article 29 (6) Duty to work to the best of his abilities and competence and to pay taxes imposed.
9) Article 29 (7) Duty to preserve African values and Culture
10) Article 29 (8) Duty to contribute to the promotion and achievement of African unity.

These are elaborate duties indeed! But how many people are fulfilling these obligations? How many are even aware of their existence?

As said earlier, despite the lack of bite in Section 24 of the Constitution, it (1999 Constitution) still provides for some enforceable duties as well as means of enforcement of those duties and as such, invariably the attached rights. The 1999 Constitution stipulates, for instance, that everyone has a right to life and goes on to state that nobody will be deprived of this right without due process. This immediately imposes a duty on every citizen not to unlawfully take the life of any other person within Nigeria. Though not as clearly stated as in the African Charter, there is no doubt that the 1999 constitution imposes duties as well. In Section 46(1) of the 1999 Constitution, a procedure for enforcement of the guaranteed fundamental rights was enacted as follows-

"Any person who alleges that any of the provisions of this Chapter has been, is being or is likely to be contravened in any State in relation to him may apply to a High Court in that State for redress"


Clearly, the use of the enforcement procedure in Section 46 has helped in guaranteeing the fundamental rights relating to individual liberties. The Courts have used the powers vested in them under this section to impose duties on citizens as well as the government which have the impact of securing the rights of the individual. However, a more critical analysis of the section will reveal that it does not go far enough. First, Section 46 leaves it to the individual to seek the enforcement of his fundamental rights. Secondly, it is only applicable to Chapter 4 and as such deprives the individual the right to enforce the rights under Chapter 2 of the Constitution. In other words, Section 46 is not applicable to social, economic and cultural rights.

On the point that individuals alone cannot effectively enforce their rights, I believe that the Hon. Justice Chukwudifu Oputa (University of Benin 2nd Justice Idigbe Memorial Lecture Del. Friday, 28th November 1986) captured the issue correctly when he said:

"Many Nigerians are poor at one time or another during their lives but many Nigerians are poor all of their lives. As it is with poverty so it is fast becoming of unemployment. Access to the courts is a necessary adjunct of the Rule of Law and the effectuation of his rights by the citizen. It underlines and emphasises that justice should not be the privilege of the few who are rich but should be available to all the citizens of our country. But access to the courts implies the payment of Summons fees, the payment of lawyers fees, the payment for record of proceedings in the case of appeal. All these are far beyond the reach of the poor and the unemployed who, finding justice too expensive, gladly resign themselves to the denial of it………………………………….

One of the best tests of the efficacy of the fundamental rights provisions of our constitution should therefore be whether the rights enshrined therein are accorded to the poor, the unemployed, the weak, the oppressed and the defenceless."

I cannot but agree completely with his Lordship that two of the major impediments to the enforcement of human rights are 1. Poverty, and 2. Ignorance. What is the use of the right to life and freedom of movement, if you do not have the financial means to enforce those rights? Also, what is the use, if you do not know you have those rights? It follows that for effectiveness, you cannot in the long run leave enforcement of human rights simply to individuals. Other countries that are now paying human rights NGOs in Nigeria for enforcement of rights of indigent Nigerians foresaw the need for group effort at enforcement. That is why in the US today, indigent litigants are entitled to the services of well funded private legal aid attorneys and costs awarded in civil rights cases reflect actual fees of attorneys. Unfortunately, in Nigeria, the Legal Aid Scheme is restricted to criminal cases and also, government lawyers are struggling for the briefs with private practitioners so that they may ask for gratification from the indigent client! When private lawyers are engaged, they are not paid. They are expected to do the job gratuitously. The result is low quality output. I must commend the effort of the Lagos State government under Governor Bola Tinubu and the very able Professor Yemi Osibajo his Attorney - General, in setting up the Office of the Public Defender. The basic rationale behind such an institution is realisation that poverty can render human rights illusory and therefore the need for institutional support in its enforcement. My only reservation about this scheme is the fact that government employees are not likely to render this service efficiently in the long run. It seems to me that government should restrict itself only to the administrative aspects of the funding of the scheme and leave the aspect of providing professional legal services to private legal practitioners. I commend to the state and federal governments the recent Access to Justice Act, 1999 of England that reformed the old Legal Aid Act and provides access to public funding to cover the legal costs of indigent litigants in both civil and criminal matters.

Under various laws ranging from tax laws to criminal law, various duties are imposed, at times with penal consequences, which are intended to guarantee the enjoyment of the human rights of the citizens. An example is the offence of murder. The obligation not to commit murders, and if done, to suffer punishment, is intended to protect the human right to life. Again, the tax laws impose duty to pay tax so that the government can maintain the infrastructure to guarantee human rights to all.

Even where there is no specific legislation or agreement, the courts have always felt bold to intervene and impose duty on citizens so as to ensure that the human rights of other citizens are not infringed. This is what led to the branch of law called tort by which the court restrains unconscionable conduct such as, assault and battery, trespass, etc. The scope of the duties imposed by the Courts, under tort, as part of what we call, the common law, continue to expand. For example, it was only in the last 70 years that negligence was elevated to a full tort. Prior to this period, it was merely an element of other torts such as, trespass. But as negligence was resulting in breach of human rights of others, the courts imposed a duty of care on everyone towards his neighbour. Where breach of this duty results in damages, then liability arises. This was established in the popular case of Donoghue V Stevenson (1932) AC 562.

Having discussed the extent of the duties of the citizen under Nigeria law as it relates to human rights, the only question left to be asked is, why are citizens not playing their own part by keeping to their duty?
Many factors can be identified for this situation. They include
1) Lack of justiciability of citizens' duties in 1999 Constitution.
2) Ignorance of civic duties. Absence of formal instruction on such duties in schools has eroded a culture of compliance and internalisation of those duties by the citizenry.
3) Intolerance and growth of extremism in reaction to years of neglect and breach of duties owed to citizens and transgression of their human rights by the previous brutal military administrations.
4) Poverty.

What then is the hope for the future?

I look to the future with great hope. The fact that this parley on human rights and its corresponding duty, took place at the highest level of Nigerian society is a testament to this my great hope. But this is just the beginning. A lot needs to be done. I humbly suggest the following ways of strengthening of human rights situation in Nigeria:

1. Amendment of the 1999 Constitution to include a Chapter on Human Duties which is enforceable.
2. Amendment of Section 46 of the 1999 Constitution to expand its scope to the enforcement of Chapter 2 of the 1999 Constitution. Consequently, the provision that Chapter 2 is not justiciable should be deleted.
3. Subject to review by the High Court, enforcement of the fundamental rights provisions of the 1999 Constitution by the following organs, Public Complaints Commission, National Human Rights Commission and Code of Conduct Bureau & Tribunal
4. Expansion of Legal Aid Scheme to civil cases for indigent litigants to be run by a network of private lawyers and not civil servants.
5. Introduction of Human rights and Citizens Duties in school curricula as object of formal instruction in schools including military academy. It must form the fulcrum of activities of the National Orientation Agency or other similar governmental organs for mobilisation of our people.
6. Internalisation of human rights and duties in the different aspects of our lives through legislation which I call Bill of Rights and Duties. There will be different Bills of Rights and Duties specifying rights and duties in particular circumstances. Because of the problem of ignorance, the legislation will require these Bills to be displayed as appropriate. They can make the difference as to whether someone's rights are violated or not. Thus, we should have, Patients' Bill of Rights to be displayed in every hospital, Prisoners Bill of Rights, Suspects Bill of Rights, Passengers Bill of Rights, etc.
7. Reform of our penal system to shift emphasis from deterrence and retribution to rehabilitation and compassion. Introduction of penal measures such as probation, suspended sentence, and community service for simple offences and lower category felonies will alleviate the squalor and inhuman conditions in our prison system. Whilst these new forms of punishment aim at rehabilitation, they also help reduce the theatre for gross abuse of human rights and dehumanisation of Nigerians which our conventional prison system offer.

Knowledge is power and our people need to be empowered. The frequent argument against my suggestions is that they are too sweeping and radical. It is also said that government will crumble under the additional weight of the cost of meeting economic and cultural rights of the people such as provision of housing for those without a roof over their heads and stipend for those out of work. The simple answer is that it will not crumble. Less endowed countries are doing it and they have survived. The fear is more in the likely abuse rather than in the program itself. It is, therefore, a collective challenge for us as a people to ensure that only those who are entitled get them and those caught abusing the system are severely punished.

In conclusion, it can be said that, human rights without the effective enforcement of its corresponding duties, is useless. Further, the process of transforming the concept of human rights to reality can be distorted by certain limitations such as, poverty, economic underdevelopment and ignorance. In order to overcome these problems, strategies must be put in place to empower the people both economically and in terms of knowledge. Good government is the minimum requirement for people to react positively to their legal duties as regard human rights. Democracy is the beginning of good government and I, therefore, having regard to our nascent democracy, look forward with hope to the future of human rights in Nigeria.


MR IDIGBE is a Senior Advocate of Nigeria practising in Lagos