The Use of Court Process; Writ of Summons, Originating Summons, Originating Motion and Petition

Proceedings in courts are usually commenced by the issuance of a court process out of the registry of a court usually known as Originating processes. It simply means that where a statute specifically stipulates the manner of commencing or initiating an action in relation to specified reliefs, then the commencement of an action by such form or process becomes the originating process.

Commencing a suit maybe by Writ of Summons, originating summons, Originating motions and Petition. All these court processes can be likened to a vehicle that brings a matter to a court; it can be very disastrous if a wrong process is drafted to a commence a suit (Fundamental Human rights matters is an exception).

A writ of summons is a court document that commences legal proceedings and informs the defendant that the plaintiff has started civil proceedings against him in a court of law. It requires the defendant to enter an appearance if he wishes to dispute the claim, A writ of Summons is usually drafted when the matter before the court is a contentious matter and requires evidence (see A.P.C

v. Elebeke [2022]10 NWLR (Pt. 1837) 1). Matters relating to contractual agreements, damages, election and declaration of title to property are usually commenced by a writ of summons. The initial stage in starting Civil proceedings will be the issuance of a writ of summons if the claimant/ plaintiff agrees to pursue legal action against the defendant. Additionally, according to the case of Doherty v Doherty [1968] NMLR 241, the supreme Court held that once one is unsure of which court process to draft, he should draft a writ of summons. It should also be noted that it is the duty of the court to issue writ of summons once the plaintiff has paid applied for a writ of summons and paid the appropriate fees (see Ogbuanyinya v. Okudo (1990) 4 NWLR (Pt. 146) 551).

An originating summons is also one of the originating processes of commencing an action in court. It is basically the opposite of writ of summons; for matters that are straight forward and on point of law like interpretation of documents or written law. An action is commenced by an Originating summons when it is required by a statute or when the dispute, which is concerned with matters of law, is unlikely to be any substantial dispute of fact. An originating summons sets out the questions that the court is being asked to settle. An Originating summons maybe inter partes or Ex- parte of the rules of court. On the basis of filed affidavits, the originating summons is heard. The judges or registrars conduct chamber or open court hearings for originating summons cases. The affidavits submitted in support of or opposition to the originating summons are considered, along with the testimony of the attorneys. Originating summons are used to invoke the original jurisdiction of courts; National Industrial court and the Supreme Court.

The court has made itself clear on when it is appropriate to commence action by originating summons and when inappropriate in the case of Alamieyeseigha v Igoniwari (2007) NWLR (Pt1034) 524 where it stated inter alia that;

Originating summons is appropriate in commencing a suit where there is no dispute on question of fact or the likelihood of such dispute. Where it is obvious from the state of affidavits that there would be dispute in the proceedings, originating summons is no longer appropriate. In such a circumstance, a writ of summons ought to be filed.

The famous case of Machina v. Lawan is a good example of the disastrous effect of iniatiating a contentious matter with an Originating summons.

The main difference between a writ of summons and an originating summons in the opinion of Chitty J in the case of Re Busfield, Whaley v Busfield (1886) 32ChD 123, is that in a writ of summons, the proceedings are in court and there are or may be pleadings while in the originating summons, the proceedings are in chambers and there are no pleadings.

Originating motion is also one of the originating processes. According to U.B.A v.

Ekpo(2003) 12 NWLR (Pt.834) 332 (P 72, para. F), a suit maybe commenced by originating motion or petition where either by the rules or under any written law, the suit in question is required or authorized to be so begun, but not otherwise. It is used generally for non-contentious matters i.e., matters where the facts are not likely in dispute. Usually, when a statute provides that action be commenced by application but does not specifically provide the procedure, originating motion is used. Originating motion is usually used to initiate matters involving Fundamental Human right and Prerogative writs which are; Habeas Corpus, mandamus, certiorari, prohibition, procendendo and quo warranto. A declaratory relief can be granted under Originating summons or motion where the respondent fails to file a counter-affidavit (see Dagazau v. Bokir Intl co. Ltd. (2011)14 NWLR(Pt. 1267) 261 (P.324, para. C))

Lastly, Petitions is also an originating process and can be used to initiate or commence an action in court. Marital issues is usually commenced by a petition as directed by the matrimonial causes Act. Secondly, dissolution and winding up of companies is also commenced via Petitions. The Court of Appeal was succinct in the case of Pharma Deko Plc v. F.D.C. Ltd (2015) 10 NWLR (Pt. 1467) 225 where it held inter alia that the petition in a winding up action for inability of a company to pay its debt under section 408 of the Companies and Allied Matters Act, 1990 is an originating process. Another matter duly commenced by Petitions is Election matters. Election petition proceedings are sui generis, they are in a special class. Election petition cases have a strict rule of adherence to procedures (any little procedural mistake can be detrimental to the petitioner

However, an originating process whether writ of summons, originating summons, oiginating motion or petition has to be valid before it can commence an action in any court of law. The court is very lucid in the case of Ofuka v. Izabi Undie (2022) 3 NWLR (Pt. 1818) 488 (P. 504, paras. F-G) where it stated inter alia that;

An Originating process whether writ of summons, originating summons or notice of appeal must be valid in order to confer jurisdiction on a court to adjudicate between the parties on the subject matter in dispute between them.

The law is also certain on who to sign an Originating process. In the case of M.C.C. (Nig.) Ltd v. COSEDA (Nig) Ltd. (2018) 11 NWLR (Pt. 1629) 47 (pp. 58-59, paras. H-A), the court of appeal succinctly held that a law firm is incapable of signing an originating process or any legal document. The court goes on to describe how an originating process is to be signed; The signature of counsel, which may be any contraption; (b) The name of counsel clearly written; The party counsel represents; and Name and address of counsel’s law firm.

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Image credit: Committee to Protect Journalists

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The Concept of Stateless Persons in International Law; Their Rights, Duties and Obligations

Introduction

A quick glance at the topic of this article and one would begin to wonder what exactly the writer means by Stateless Persons/Persons of Undetermined Nationality.

How can one be without a state [in this context, a country], and how can one be said to be of an ‘undetermined nationality‟? Is it not a fact that every human being is a national of one or more countries? So what then does the writer mean by stateless person?

Definition of Concepts

A stateless person is one who is not considered a national by any State under the operation of its laws.¹

In simple terms, it is used to refer to a person or group of persons whom by any reason whatsoever lacks legal citizenship in any country where they’re currently residing.

Statelessness can occur for so many reasons. For one, it may occur when a child is born to stateless parents or in a territory with disputed nationality laws. It can also occur when a new state is formed, and some individuals may be left without citizenship in either the new or old state. Lastly, it may occur when a state revokes someone’s citizenship in certain circumstances, thereby potentially leaving them stateless.²

According to the United Nations High Commissioner for Refugees [UNHCR], over 4.4 million persons are stateless.³ And these stateless persons often belonging to minority groups are often deprived of human rights and access to basic services.²

Legal Instruments

The key legal framework that makes provisions for the concept of stateless persons and persons of undetermined nationality is the 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.

The 1954 Convention Relating to the Status of Stateless Persons defines who is considered stateless and outlines their rights and protections, while the 1961 Convention on the Reduction of Statelessness on the other hand aims to prevent statelessness by encouraging states to adopt fairer nationality laws.

See also: Differences Between the Nigerian and American Electoral System

It is reported that in total, about 97 countries are now state parties to the 1954 Convention Relating to the Status of Stateless Persons, and 79 are party to the 1961 Convention on the Reduction of Statelessness.⁴

Rights, Obligations & Duties of Stateless Persons/persons of Undertermined Nationality

Article 1 [1], 1954 UN Convention Relating to the Status of Stateless Persons defined a stateless person/stateless persons thus; “For the purpose of this Convention, the term “stateless person” means a person who is not considered as a national by any State under the operation of its law.”

Article 1 [2] then goes further ahead to provide that the convention is to apply to persons who are receiving protection or assistance from any organ or agencies of the United Nations other than the United Nations High Commissioner for Refugees;⁵ and also to persons with respect to whom there are serious reasons for considering that: (a) They have committed a crime against peace, a war crime, or a crime against humanity; (b) They have committed a serious non-political crime outside the country of their residence prior to their admission to that country; and (c) They have been guilty of acts contrary to the purposes and principles of the United Nations.⁶

In Articles 2, the Convention begins to spell out the duties of a stateless person to wit “Every stateless person has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order”. Thus, even though one is a stateless person in a particular country, he owes the duty/obligation  to  obey  every  lawful  regulation  extant  in  the  country  where  he/she  currently resides.

As per the rights of stateless persons, the Convention makes provisions for protection against discrimination. Article 3 of the Convention provides that “The Contracting States to the Convention shall apply its provisions to stateless persons without discrimination as to race, religion or country of origin.”

Also, the contracting parties to the convention were all enjoined in Article 4 to “accord to stateless persons within their territories treatment at least as favourable as that accorded to their nationals with respect to freedom to practise their religion and freedom as regards the religious education of their children”. In essence, every stateless person is guaranteed the rights to practice his religion without any interference.

As regards Personal Status, Article 12 provides that “The personal status of a stateless person shall be governed by the law of the country of his domicile or, if he has no domicile, by the law of the country of his residence. More so, rights which were previously acquired by a stateless person and dependent on personal status, more particularly rights attaching to marriage, shall also be respected by a Contracting State, subject to compliance, if this be necessary, with the formalities required by the law of that State.

Furthermore, Article 13 which makes provisions for movable and immovable property stipulates that “The Contracting States shall accord to a stateless person treatment as favourable as possible, as regards the acquisition of movable and immovable property and other rights pertaining thereto, and to leases and other contracts relating to movable and immovable property. Thus, stateless persons on the strength of this provision can own both moveable and immovable properties in the territory of the country were they currently resides.

In a world where artistic rights and industrial innovations are rife, Article 14 of the Convention makes provisions for the artistic rights and intellectual property rights of stateless persons. It provides that “In respect of the protection of industrial property, such as inventions, designs or models, trademarks, trade names, and of rights in literary, artistic and scientific works, a stateless person shall be accorded in the country in which he has his habitual residence the same protection as is accorded to nationals of that country. In the territory of any other Contracting State, he shall be accorded the same protection as is accorded in that territory to nationals of the country in which he has his habitual residence”. The purpose of this provision from every indication is to safeguard the intellectual creations of stateless persons as much as that of any regular/average citizen. Thus, their being stateless does not deprive them of enjoying such.

In Article 15, the right of association as regards non-political and non-profit-making associations and trade unions are equally accorded to stateless persons lawfully staying in the territory of a contracting state to the convention.

In Article 16 also, access to courts and judicial process were granted stateless persons. The provision in question provides that “A stateless person shall have free access to the Courts of Law on the territory of all Contracting States”. They shall also enjoy in the Contracting State in which they have their habitual residence the same treatment as a national in matters pertaining to access to the Courts, including legal assistance and services.

Under Chapter III and Chapter IV of the convention, stateless persons are entitled to wage earning employment⁷, Self-employment⁸, Liberal Professions⁹, Rationing¹⁰, Housing¹¹, Public Education¹², Public Relief¹³, Labour Legislation and Social Security,¹⁴ and Freedom of movement.¹⁵

Finally, Article 32 of the Convention makes provision for an opportunity of naturalization for stateless persons. The convention in Article 32 provides that “The Contracting States shall as far as possible facilitate the assimilation and naturalization of stateless persons. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.” It is on the strength of this particular provision that countries like the Kyrgyz Republic, Republic of Moldova, Portugal, North Macedonia, Kenya and Tanzania enacted legislations that either sort to allow stateless persons acquire their nationality or strived to reduce statelessness.¹⁶

See also: North Atlantic Treaty Organization

All in all, it can be seen from the provisions of this convention that the intent of the draftsmen were to first of all recognize the existence of these set of persons whom for one reason or the other are no longer affiliated to any state, and to also give them where deserving a new opportunity to life.

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About Author

1. UNHCR, „About Statelessness- What Does It Mean To Be Stateless‟? [2023]<https://www.unhcr.org/ibelong/about-statelessness/#:-:text=What%20is%20statelessness%3F,the%20nationality%20of%20any%20country> accessed 25 March 2024 [↩]
2. Ibid [↩] [↩]
3. DW News, „At Least 4.4 Million People Are Stateless, UN Says‟ [2023] <https://www.dw.com/en/at-least-44- million-people-are-stateless-un-says/a-67304876?maca=en-rss-en-all-1573-rdf> accessed 28 March 2024 [↩]
4. Ibid [n-3] [↩]
5. Article 1[2] [I] [↩]
6. Article 1[2] [III] [a-c] [↩]
7. Article 17 [↩]
8. Article 18 [↩]
9. Article 19 [↩]
10. Article 20 [↩]
11. Article 21 [↩]
12. Article 22 [↩]
13. Article 23 [↩]
14. Article 24 [↩]
15. Article 26 [↩]
16. DW News, „At Least 4.4 Million People Are Stateless, UN Says‟ [2023] <https://www.dw.com/en/at-least-44- million-people-are-stateless-un-says/a-67304876?maca=en-rss-en-all-1573-rdf> accessed 30 March 2024 [↩]

ᴘower of ᴀrrest: ᴡhether Relative ᴄan be ᴀrrested in ʟieu of a Ʀelative-Suspect by the ɴigerian ᴘolice

𝗜𝗻𝘁𝗿𝗼𝗱𝘂𝗰𝘁𝗶𝗼𝗻

T𝐡𝐞 𝐩𝐨𝐥𝐢𝐜𝐞 𝐟𝐨𝐫𝐜𝐞 𝐢𝐬 𝐭𝐡𝐞 𝐞𝐬𝐭𝐚𝐛𝐥𝐢𝐬𝐡𝐦𝐞𝐧𝐭 𝐨𝐟 𝐭𝐡𝐞 𝐥𝐚𝐰– 𝐭𝐡𝐞 𝐠𝐫𝐮𝐧𝐝𝐧𝐨𝐫𝐦 𝐨𝐟 𝐭𝐡𝐞 𝐥𝐚𝐧𝐝 𝐚𝐧𝐝 𝐭𝐡𝐞 𝐩𝐨𝐥𝐢𝐜𝐞 𝐀𝐜𝐭 𝐚𝐧𝐝 𝐨𝐭𝐡𝐞𝐫 𝐜𝐫𝐢𝐦𝐞𝐬 𝐫𝐞𝐠𝐮𝐥𝐚𝐭𝐨𝐫𝐲 𝐀𝐜𝐭, 𝐥𝐢𝐤𝐞 𝐀𝐝𝐦𝐢𝐧𝐢𝐬𝐭𝐫𝐚𝐭𝐢𝐨𝐧 𝐨𝐟 𝐂𝐫𝐢𝐦𝐢𝐧𝐚𝐥 𝐉𝐮𝐬𝐭𝐢𝐜𝐞 𝐀𝐜𝐭 𝐞𝐭𝐜. I𝐭 𝐰𝐚𝐬 𝐞𝐬𝐭𝐚𝐛𝐥𝐢𝐬𝐡𝐞𝐝 𝐛𝐲 𝐬𝐞𝐜𝐭𝐢𝐨𝐧 𝟐𝟒𝟏(𝟏) 𝐨𝐟 𝟏𝟗𝟗𝟗 𝐜𝐨𝐧𝐬𝐭𝐢𝐭𝐮𝐭𝐢𝐨𝐧.

𝐅𝐨𝐫 𝐞𝐯𝐞𝐫𝐲 𝐩𝐞𝐫𝐬𝐨𝐧 𝐢𝐧 𝐍𝐢𝐠𝐞𝐫𝐢𝐚, 𝐩𝐚𝐫𝐭𝐢𝐜𝐮𝐥𝐚𝐫𝐥𝐲 𝐭𝐡𝐞 𝐧𝐨𝐫𝐭𝐡𝐞𝐫𝐧 𝐩𝐚𝐫𝐭, 𝐭𝐡𝐞 𝐝𝐢𝐬𝐡𝐞𝐚𝐫𝐭𝐞𝐧𝐢𝐧𝐠 𝐚𝐧𝐝 𝐚𝐛𝐨𝐦𝐢𝐧𝐚𝐛𝐥𝐞 𝐚𝐜𝐭 𝐨𝐟 𝐩𝐨𝐥𝐢𝐜𝐞 𝐚𝐫𝐫𝐞𝐬𝐭𝐢𝐧𝐠 𝐚 𝐫𝐞𝐥𝐚𝐭𝐢𝐯𝐞( 𝐟𝐚𝐭𝐡𝐞𝐫, 𝐛𝐫𝐨𝐭𝐡𝐞𝐫 𝐞𝐭𝐜) 𝐟𝐨𝐫 𝐭𝐡𝐞 𝐨𝐟𝐟𝐞𝐧𝐜𝐞 𝐜𝐨𝐦𝐦𝐢𝐭𝐭𝐞𝐝 𝐨𝐫 𝐚𝐥𝐥𝐚𝐠𝐞𝐝 𝐭𝐨 𝐡𝐚𝐯𝐞 𝐛𝐞𝐞𝐧 𝐜𝐨𝐦𝐦𝐢𝐭𝐭𝐞𝐝 𝐛𝐲 𝐭𝐡𝐞𝐢𝐫 𝐬𝐨𝐧 𝐢𝐬 𝐧𝐨𝐭 𝐚 𝐧𝐨𝐯𝐞𝐥 𝐩𝐫𝐞𝐬𝐮𝐩𝐩𝐨𝐬𝐢𝐭𝐢𝐨𝐧 . 𝐈𝐭 𝐢𝐬 𝐢𝐧𝐝𝐮𝐛𝐢𝐭𝐚𝐛𝐥𝐲 𝐭𝐫𝐮𝐞 𝐚𝐧𝐝 𝐜𝐨𝐦𝐦𝐨𝐧.

𝐇𝐨𝐰𝐞𝐯𝐞𝐫, 𝐭𝐡𝐞 𝐞𝐱𝐭𝐞𝐧𝐝 𝐰𝐡𝐢𝐜𝐡 𝐩𝐨𝐥𝐢𝐜𝐞 𝐞𝐱𝐞𝐫𝐜𝐢𝐬𝐞𝐬 𝐢𝐭𝐬 𝐩𝐨𝐰𝐞𝐫𝐬 𝐜𝐚𝐧, 𝐭𝐨 𝐚𝐥𝐥 𝐭𝐡𝐞 𝐫𝐞𝐚𝐬𝐨𝐧𝐚𝐛𝐥𝐞 𝐩𝐞𝐫𝐬𝐨𝐧, 𝐛𝐞 𝐬𝐚𝐢𝐝 𝐭𝐨 𝐛𝐞 𝐮𝐥𝐭𝐫𝐚 𝐯𝐢𝐫𝐞𝐬 𝐨𝐫 𝐨𝐮𝐭𝐬𝐢𝐝𝐞 𝐭𝐡𝐞 𝐩𝐮𝐫𝐯𝐢𝐞𝐰 𝐨𝐟 𝐥𝐚𝐰 𝐨𝐫 𝐢𝐧 𝐛𝐞𝐭𝐭𝐞𝐫 𝐟𝐫𝐚𝐦𝐞𝐝 𝐥𝐚𝐧𝐠𝐮𝐚𝐠𝐞, 𝐜𝐨𝐧𝐬𝐭𝐢𝐭𝐮𝐭𝐞 𝐚 𝐣𝐮𝐫𝐢𝐬𝐝𝐢𝐜𝐭𝐢𝐨𝐧𝐚𝐥 𝐚𝐧𝐝 𝐩𝐨𝐰𝐞𝐫 𝐚𝐛𝐮𝐬𝐞. 𝐇𝐞𝐧𝐜𝐞, 𝐩𝐞𝐨𝐩𝐥𝐞 𝐝𝐨 𝐧𝐨𝐭 𝐧𝐞𝐞𝐝 𝐚 𝐦𝐚𝐠𝐢𝐜𝐢𝐚𝐧 , 𝐥𝐨𝐠𝐢𝐜 𝐬𝐮𝐟𝐟𝐢𝐜𝐞, 𝐭𝐨 𝐚𝐮𝐭𝐡𝐞𝐧𝐭𝐢𝐜𝐚𝐭𝐞 𝐭𝐡𝐞 𝐢𝐥𝐥𝐞𝐠𝐚𝐥𝐢𝐭𝐲 𝐚𝐧𝐝 𝐮𝐧𝐜𝐨𝐧𝐬𝐭𝐢𝐭𝐮𝐭𝐢𝐨𝐚𝐥𝐢𝐭𝐲 𝐨𝐟 𝐩𝐨𝐥𝐢𝐜𝐞 𝐚𝐭𝐭𝐢𝐭𝐮𝐝𝐞 𝐨𝐧  𝐭𝐡𝐢𝐬 𝐫𝐞𝐠𝐚𝐫𝐝.

Power of Police to Make Arrest in Nigeria

𝐏𝐨𝐥𝐢𝐜𝐞 𝐚𝐬 𝐩𝐫𝐨𝐬𝐞𝐜𝐮𝐭𝐨𝐫𝐲 𝐚𝐠𝐞𝐧𝐭 𝐢𝐧 𝐍𝐢𝐠𝐞𝐫𝐢𝐚 𝐚𝐫𝐞 𝐠𝐨𝐯𝐞𝐫𝐧 𝐛𝐲 𝐭𝐰𝐨 𝐩𝐫𝐢𝐧𝐜𝐢𝐩𝐚𝐥 𝐥𝐚𝐰𝐬– 𝐜𝐨𝐧𝐬𝐭𝐢𝐭𝐮𝐭𝐢𝐨𝐧 𝐚𝐧𝐝 𝐏𝐨𝐥𝐢𝐜𝐞 𝐀𝐜𝐭. 𝐭𝐡𝐞 𝐜𝐨𝐧𝐬𝐭𝐢𝐭𝐮𝐭𝐢𝐨𝐧 𝐞𝐬𝐭𝐚𝐛𝐥𝐢𝐬𝐡𝐞𝐝 𝐭𝐡𝐞 𝐛𝐨𝐝𝐲 𝐚𝐧𝐝 𝐭𝐡𝐞 𝐩𝐨𝐥𝐢𝐜𝐞 𝐀𝐜𝐭 𝐝𝐞𝐟𝐢𝐧𝐞𝐝 𝐢𝐭𝐬 𝐩𝐨𝐰𝐞𝐫𝐬 (section 241 (1) and part two section 4 respectively)

𝐂𝐨𝐧𝐬𝐭𝐢𝐭𝐮𝐭𝐢𝐨𝐧 𝐛𝐞𝐞𝐧 𝐭𝐡𝐞 𝐡𝐢𝐠𝐡𝐞𝐫 𝐧𝐨𝐫𝐦 𝐨𝐟 𝐭𝐡𝐞 𝐥𝐚𝐧𝐝, 𝘧𝘰𝘯𝘴 𝘦𝘵 𝘰𝘳𝘪𝘨𝘰, 𝐮𝐧𝐝𝐞𝐫 𝐬𝐞𝐜𝐭𝐢𝐨𝐧 𝟐𝟏𝟒 (𝟐)(𝐛) 𝐩𝐫𝐨𝐯𝐢𝐝𝐞𝐬 𝐭𝐡𝐚𝐭, 𝐭𝐡𝐞 𝐩𝐨𝐥𝐢𝐜𝐞 𝐟𝐨𝐫𝐜𝐞 𝐬𝐡𝐚𝐥𝐥 𝐡𝐚𝐯𝐞 𝐬𝐮𝐜𝐡 𝐩𝐨𝐰𝐞𝐫𝐬 𝐚𝐧𝐝 𝐝𝐮𝐭𝐢𝐞𝐬 𝐚𝐬 𝐦𝐚𝐲 𝐛𝐞 𝐜𝐨𝐧𝐟𝐞𝐫𝐫𝐞𝐝 𝐮𝐩𝐨𝐧 𝐭𝐡𝐞𝐦 𝐛𝐲 𝐥𝐚𝐰. 𝐓𝐡𝐮𝐬, 𝐭𝐡𝐞 𝐢𝐧𝐯𝐞𝐧𝐭𝐢𝐨𝐧 𝐨𝐟 𝐝𝐢𝐟𝐟𝐞𝐫𝐞𝐧𝐭 𝐞𝐧𝐚𝐜𝐭𝐦𝐞𝐧𝐭𝐬 𝐢𝐧 𝐨𝐫𝐝𝐞𝐫 𝐭𝐨 𝐢𝐧𝐯𝐢𝐠𝐨𝐫𝐚𝐭𝐞 𝐭𝐡𝐞 𝐩𝐫𝐨𝐬𝐞𝐜𝐮𝐭𝐨𝐫𝐲 𝐛𝐨𝐝𝐲 𝐞𝐬𝐭𝐚𝐛𝐥𝐢𝐬𝐡𝐞𝐝 𝐛𝐲 𝐬𝐞𝐜𝐭𝐢𝐨𝐧 𝟐𝟏𝟒 𝐨𝐟 𝟏𝟗𝟗𝟗 𝐜𝐨𝐧𝐬𝐭𝐢𝐭𝐮𝐭𝐢𝐨𝐧.

𝐀𝐩𝐚𝐫𝐭 𝐟𝐫𝐨𝐦 𝐜𝐨𝐧𝐬𝐭𝐢𝐭𝐮𝐭𝐢𝐨𝐧 ,𝐭𝐡𝐞 𝐟𝐢𝐫𝐬𝐭 𝐦𝐞𝐧𝐭𝐢𝐨𝐧𝐚𝐛𝐥𝐞 𝐥𝐚𝐰 𝐠𝐨𝐯𝐞𝐫𝐧𝐢𝐧𝐠 𝐩𝐨𝐥𝐢𝐜𝐞 𝐢𝐧 𝐭𝐡𝐞 𝐟𝐞𝐝𝐞𝐫𝐚𝐭𝐢𝐨𝐧 𝐢𝐬 𝐏𝐨𝐥𝐢𝐜𝐞 𝐀𝐜𝐭. 𝐁𝐲 𝐭𝐡𝐞 𝐩𝐫𝐨𝐯𝐢𝐬𝐨𝐧 𝐨𝐟 𝐬𝐞𝐜𝐭𝐢𝐨𝐧 𝟐𝟒 𝐨𝐟 𝐩𝐨𝐥𝐢𝐜𝐞 𝐀𝐜𝐭 𝟐𝟎𝟐𝟎 . 𝐩𝐨𝐥𝐢𝐜𝐞 𝐨𝐟𝐟𝐢𝐜𝐞𝐫𝐬 𝐚𝐫𝐞 𝐥𝐞𝐠𝐚𝐥𝐥𝐲 𝐞𝐦𝐩𝐨𝐰𝐞𝐫𝐞𝐝 𝐭𝐨  𝐚𝐫𝐫𝐞𝐬𝐭 𝐚 𝐩𝐞𝐫𝐬𝐨𝐧 𝐰𝐡𝐨 𝐜𝐨𝐦𝐦𝐢𝐭𝐬, 𝐫𝐞𝐩𝐨𝐫𝐭𝐞𝐝 𝐭𝐨 𝐡𝐚𝐯𝐞 𝐜𝐨𝐦𝐦𝐢𝐭𝐭𝐞𝐝 𝐨𝐫 𝐬𝐮𝐬𝐩𝐞𝐜𝐭 𝐰𝐢𝐥𝐥 𝐜𝐨𝐦𝐦𝐢𝐭 𝐚 𝐟𝐞𝐥𝐨𝐧𝐲, 𝐦𝐢𝐬𝐝𝐞𝐦𝐞𝐚𝐧𝐨𝐮𝐫 𝐨𝐫 𝐬𝐢𝐦𝐩𝐥𝐞 𝐨𝐟𝐟𝐞𝐧𝐜𝐞𝐬.

S𝐢𝐦𝐢𝐥𝐚𝐫𝐲 𝐛𝐲 𝐭𝐡𝐞 𝐩𝐫𝐨𝐯𝐢𝐬𝐨 𝐨𝐟 𝐬𝐞𝐜𝐭𝐢𝐨𝐧 𝟓 𝐨𝐟 𝐜𝐫𝐢𝐦𝐢𝐧𝐚𝐥 𝐜𝐨𝐝𝐞 𝐀𝐜𝐭 𝐚𝐧𝐝 𝐭𝐡𝐞 𝐰𝐨𝐫𝐝𝐢𝐧𝐠𝐬 𝐨𝐟 𝐬𝐞𝐜𝐭𝐢𝐨𝐧 𝟐𝟒 𝐨𝐟 𝐊𝐚𝐝𝐮𝐧𝐚 𝐬𝐭𝐚𝐭𝐞 𝐀𝐝𝐦𝐢𝐧𝐢𝐬𝐭𝐫𝐚𝐭𝐢𝐨𝐧 𝐨𝐟 𝐂𝐫𝐢𝐦𝐢𝐧𝐚𝐥 𝐉𝐮𝐬𝐭𝐢𝐜𝐞 𝐋𝐚𝐰, 𝟐𝟎𝟏𝟕  𝐀 𝐩𝐨𝐥𝐢𝐜𝐞 𝐦𝐚𝐲 𝐚𝐫𝐫𝐞𝐬𝐭:

(𝟏)  𝐖𝐢𝐭𝐡 𝐨𝐫 𝐰𝐢𝐭𝐡𝐨𝐮𝐭 𝐚 𝐂𝐨𝐮𝐫𝐭 𝐎𝐫𝐝𝐞𝐫 𝐨𝐫 𝐖𝐚𝐫𝐫𝐚𝐧𝐭 𝐨𝐧𝐥𝐲 𝐢𝐧 𝐭𝐡𝐞 𝐜𝐢𝐫𝐜𝐮𝐦𝐬𝐭𝐚𝐧𝐜𝐞𝐬 𝐦𝐞𝐧𝐭𝐢𝐨𝐧𝐞𝐝 𝐢𝐧 𝐒𝐞𝐜𝐭𝐢𝐨𝐧 𝟒𝟎 𝐨𝐟 𝐭𝐡𝐢𝐬 𝐋𝐚𝐰 .
𝐬𝐞𝐜𝐭𝐢𝐨𝐧 𝟒𝟎(𝟏) 𝐨𝐟 𝐬𝐚𝐦𝐞 𝐚𝐜𝐭 𝐰𝐡𝐢𝐜𝐡 𝐜𝐨𝐦𝐩𝐥𝐢𝐦𝐞𝐧𝐭 𝐭𝐡𝐞 𝐚𝐛𝐨𝐯𝐞 𝐩𝐫𝐨𝐯𝐢𝐬𝐢𝐨𝐧 𝐠𝐢𝐯𝐞𝐬 𝐩𝐨𝐥𝐢𝐜𝐞 𝐭𝐡𝐞 𝐯𝐢𝐫𝐞𝐬 𝐭𝐨 𝐚𝐫𝐫𝐞𝐬𝐭 𝐰𝐢𝐭𝐡 𝐨𝐫 𝐰𝐢𝐭𝐡𝐨𝐮𝐭 𝐰𝐚𝐫𝐫𝐚𝐧𝐭 𝐚𝐧𝐲 𝐩𝐞𝐫𝐬𝐨𝐧 𝐞𝐧𝐮𝐦𝐞𝐫𝐚𝐭𝐞𝐝 𝐮𝐧𝐝𝐞𝐫 𝐭𝐡𝐞  𝐬𝐞𝐜𝐭𝐢𝐨𝐧 .𝐭𝐡𝐮𝐬: 𝐀 𝐏𝐨𝐥𝐢𝐜𝐞 𝐎𝐟𝐟𝐢𝐜𝐞𝐫 𝐦𝐚𝐲, 𝐰𝐢𝐭𝐡𝐨𝐮𝐭 𝐚𝐧 𝐎𝐫𝐝𝐞𝐫 𝐨𝐟 𝐚 𝐂𝐨𝐮𝐫𝐭 𝐚𝐧𝐝 𝐰𝐢𝐭𝐡𝐨𝐮𝐭 𝐚 𝐰𝐚𝐫𝐫𝐚𝐧𝐭, 𝐚𝐫𝐫𝐞𝐬𝐭 𝐚 𝐒𝐮𝐬𝐩𝐞𝐜𝐭:
𝐬𝐢𝐦𝐢𝐥𝐚𝐫 𝐩𝐫𝐨𝐯𝐢𝐬𝐢𝐨𝐧 𝐢𝐬 𝐢𝐧𝐬𝐞𝐫𝐭𝐞𝐝 𝐢𝐧 𝐭𝐡𝐞 𝐊𝐚𝐧𝐨 𝐀𝐝𝐦𝐢𝐧𝐢𝐬𝐭𝐫𝐚𝐭𝐢𝐨𝐧 𝐨𝐟 𝐂𝐫𝐢𝐦𝐢𝐧𝐚𝐥 𝐉𝐮𝐬𝐭𝐢𝐜𝐞 𝐀𝐜𝐭, 𝟐𝟎𝟏𝟗 𝐮𝐧𝐝𝐞𝐫 𝐭𝐡𝐞 𝐬𝐡𝐚𝐝𝐞 𝐨𝐟 𝐬𝐞𝐜𝐭𝐢𝐨𝐧 𝟐𝟓 𝐚𝐧𝐝 𝟐𝟔.

𝐒𝐢𝐦𝐢𝐥𝐚𝐫𝐥𝐲 𝐭𝐡𝐞 𝐩𝐨𝐰𝐞𝐫 𝐨𝐟 𝐩𝐨𝐥𝐢𝐜𝐞 𝐭𝐨 𝐦𝐚𝗸𝐞 𝐚𝐫𝐫𝐞𝐬𝐭 𝐡𝐚𝐬 𝐛𝐞𝐞𝐧 𝐢𝐧𝐧𝐮𝐦𝐞𝐫𝐚𝐛𝐥𝐲 𝐣𝐮𝐬𝐭𝐢𝐟𝐢𝐞𝐝 𝐢𝐧 𝐩𝐥𝐞𝐭𝐡𝐨𝐫𝐚 𝐨𝐟 𝐜𝐚𝐬𝐞𝐬 𝐟𝐨𝐫 𝐢𝐧𝐬𝐭𝐚𝐧𝐜𝐞, 𝐢𝐧 𝐭𝐡𝐞 𝐜𝐚𝐬𝐞 𝐨𝐟 𝗗𝗼𝗸𝗼𝗯𝘂 𝗔𝘀𝗮𝗿𝗶 𝐯. 𝗙𝗲𝗱𝗲𝗿𝗮𝗹 𝗥𝗲𝗽𝘂𝗯𝗹𝗶𝗰 𝗼𝗳 𝗡𝗶𝗴𝗲𝗿𝗶𝗮(𝟐𝟎𝟎𝟕) 𝐉𝐄𝐋𝐑 𝟓𝟒𝟗𝟔𝟐 (𝐒𝐂) 𝐭𝐡𝐞 𝐒𝐮𝐩𝐫𝐞𝐦𝐞 𝐂𝐨𝐮𝐫𝐭 𝐡𝐞𝐥𝐝 𝐭𝐡𝐚𝐭: 𝐓𝐡𝐞 𝐩𝐨𝐰𝐞𝐫 𝐨𝐟 𝐚𝐫𝐫𝐞𝐬𝐭 𝐨𝐟 𝐬𝐮𝐬𝐩𝐞𝐜𝐭𝐞𝐝 𝐨𝐟𝐟𝐞𝐧𝐝𝐞𝐫𝐬 𝐢𝐬 𝐯𝐞𝐬𝐭𝐞𝐝 𝐢𝐧 𝐭𝐡𝐞 𝐩𝐨𝐥𝐢𝐜𝐞 𝐚𝐧𝐝 𝐧𝐨 𝐨𝐧𝐞 𝐜𝐚𝐧 𝐭𝐚𝐤𝐞 𝐢𝐭 𝐚𝐰𝐚𝐲 𝐟𝐫𝐨𝐦 𝐭𝐡𝐞𝐦”

𝐇𝐨𝐰𝐞𝐯𝐞𝐫, t𝐡𝐞 𝐞𝐱𝐞𝐫𝐜𝐢𝐬𝐞 𝐨𝐟 𝐬𝐮𝐜𝐡 𝐞𝐱𝐜𝐥𝐮𝐬𝐢𝐯𝐞 𝐩𝐨𝐰𝐞𝐫 𝐦𝐮𝐬𝐭 𝐛𝐞 𝐢𝐧 𝐜𝐨𝐦𝐟𝐨𝐫𝐦𝐢𝐭𝐲 𝐰𝐢𝐭𝐡 𝐥𝐚𝐰 𝐚𝐬 𝐨𝐛𝐬𝐞𝐫𝐯𝐞𝐝 𝐢𝐧 𝐭𝐡𝐞 𝐜𝐚𝐬𝐞 𝐨𝐟 𝗜𝗴𝘄𝗲𝗼𝗸𝗼𝗹𝗼  v. 𝗔𝗸𝗽𝗼𝘆𝗶𝗯𝗼  & 𝗢𝗿𝘀  (3),(2017) LPELR-41882(CA), 𝐭𝐡𝐞 𝐜𝐨𝐮𝐫𝐭 𝐨𝐩𝐢𝐧𝐞 𝐭𝐡𝐚: ” 𝐛𝐲 𝐚𝐥𝐥 𝐨𝐝𝐝𝐬,𝐭𝐡𝐞 𝐩𝐨𝐥𝐢𝐜𝐞 𝐡𝐚𝐯𝐞 𝐭𝐡𝐞 𝐬𝐭𝐚𝐭𝐮𝐭𝐨𝐫𝐲 𝐩𝐨𝐰𝐞𝐫 𝐭𝐨 𝐢𝐧𝐯𝐞𝐬𝐭𝐢𝐠𝐚𝐭𝐞, 𝐚𝐫𝐫𝐞𝐬𝐭, 𝐢𝐧𝐭𝐞𝐫𝐫𝐨𝐠𝐚𝐭𝐞, 𝐬𝐞𝐚𝐫𝐜𝐡 𝐚𝐧𝐝 𝐝𝐞𝐭𝐪𝐢𝐧 𝐚𝐧𝐲 𝐬𝐮𝐬𝐩𝐞𝐜𝐭. 𝐓𝐡𝐞 𝐨𝐧𝐥𝐲 𝐪𝐮𝐚𝐥𝐢𝐟𝐢𝐜𝐚𝐭𝐢𝐨𝐧 𝐢𝐬 𝐭𝐡𝐚𝐭 𝐭𝐡𝐞 𝐩𝐨𝐰𝐞𝐫 𝐦𝐮𝐬𝐭 𝐛𝐞 𝐞𝐱𝐞𝐫𝐜𝐢𝐬𝐞𝐝 𝐢𝐧 𝐚𝐜𝐜𝐨𝐫𝐝𝐚𝐧𝐜𝐞 𝐰𝐢𝐭𝐡 𝐭𝐡𝐞 𝐥𝐚𝐰” 

𝐒𝐮𝐛𝐬𝐞𝐪𝐮𝐞𝐧𝐭𝐥𝐲, 𝐚 𝐦𝐞𝐭𝐢𝐜𝐮𝐥𝐨𝐮𝐬 𝐞𝐱𝐚𝐦𝐢𝐧𝐚𝐭𝐢𝐨𝐧 𝐨𝐫 𝐱𝐫𝐚𝐲 𝐨𝐟 𝐭𝐡𝐞 𝐩𝐫𝐨𝐯𝐢𝐬𝐢𝐨𝐧𝐬 𝐚𝐧𝐝 𝐩𝐫𝐞𝐜𝐞𝐝𝐞𝐧𝐭𝐬 𝐜𝐢𝐭𝐞𝐝 𝐚𝐛𝐨𝐯𝐞, 𝐰𝐢𝐥𝐥 𝐚𝐮𝐭𝐡𝐞𝐧𝐭𝐢𝐜𝐚𝐭𝐞 𝐨𝐫 𝐦𝐚𝐤𝐞 𝐭𝐡𝐞 𝐚𝐫𝐠𝐮𝐦𝐞𝐧𝐭 𝐨𝐧 𝐰𝐡𝐞𝐭𝐡𝐞𝐫 𝐩𝐨𝐥𝐢𝐜𝐞 𝐡𝐚𝐬 𝐚𝐫𝐫𝐞𝐬𝐭 𝐩𝐨𝐰𝐞𝐫 𝐣𝐮𝐬𝐭𝐢𝐟𝐢𝐚𝐛𝐥𝐞. 𝐁𝐮𝐭, 𝐰𝐡𝐞𝐭𝐡𝐞𝐫 𝐬𝐮𝐜𝐡 𝐩𝐨𝐰𝐞𝐫 𝐜𝐚𝐧 𝐛𝐞 𝐬𝐭𝐫𝐞𝐭𝐜𝐡𝐞𝐝 𝐭𝐨 𝐭𝐡𝐞 𝐟𝐚𝐭𝐡𝐞𝐫 𝐨𝐫 𝐫𝐞𝐥𝐚𝐭𝐢𝐯𝐞 𝐰𝐡𝐨𝐬𝐞 𝐬𝐮𝐬𝐩𝐞𝐜𝐭 𝐤𝐢𝐝 𝐫𝐮𝐧𝐬 𝐚𝐰𝐚𝐲 𝐰𝐨𝐮𝐥𝐝 𝐛𝐞 𝐞𝐥𝐮𝐜𝐢𝐝𝐚𝐭𝐞𝐝 𝐛𝐞𝐥𝐨𝐰.

Whether a 𝗥elative 𝗖an be Arrested in Lieu of a Family 𝗠ember who is Suspect of a 𝗖rime

𝐀𝐫𝐫𝐞𝐬𝐭 𝐢𝐧 𝐥𝐢𝐞𝐮 𝐢𝐬 𝐭𝐡𝐞 𝐚𝐜𝐭 𝐨𝐟 𝐚𝐫𝐫𝐞𝐬𝐭𝐢𝐧𝐠 𝐀 𝐟𝐨𝐫 𝐭𝐡𝐞 𝐨𝐟𝐟𝐞𝐧𝐜𝐞 𝐨𝐟 𝐁 𝐰𝐡𝐞𝐫𝐞 𝐭𝐡𝐞 𝐀’𝐬 𝐰𝐡𝐞𝐫𝐞𝐚𝐛𝐨𝐮𝐭𝐬 𝐢𝐬 𝐮𝐧𝐤𝐧𝐨𝐰𝐧𝐞𝐝 𝐛𝐲 𝐭𝐡𝐞 𝐩𝐨𝐥𝐢𝐜𝐞 .𝐈𝐭 𝐥𝐢𝐭𝐞𝐫𝐚𝐥𝐥𝐲 𝐦𝐞𝐚𝐧𝐬 𝐭𝐡𝐞 𝐚𝐫𝐫𝐞𝐬𝐭 𝐨𝐟 𝐨𝐧𝐞 𝐩𝐞𝐫𝐬𝐨𝐧 𝐢𝐧 𝐩𝐥𝐚𝐜𝐞 𝐨𝐟 𝐚𝐧𝐨𝐭𝐡𝐞𝐫.

𝐀𝐫𝐫𝐞𝐬𝐭 𝐢𝐧 𝐥𝐢𝐞𝐮 𝐢𝐬 𝐚𝐥𝐬𝐨 𝐜𝐚𝐥𝐥𝐞𝐝  𝐬𝐮𝐛𝐬𝐭𝐢𝐭𝐮𝐭𝐢𝐨𝐧𝐚𝐥 𝐚𝐫𝐫𝐞𝐬𝐭 𝐨𝐫 𝐚𝐫𝐫𝐞𝐬𝐭 𝐛𝐲 𝐩𝐫𝐨𝐱𝐲. 𝐓𝐡𝐢𝐬 𝐢𝐬 𝐛𝐨𝐫𝐧𝐞 𝐨𝐮𝐭 𝐨𝐟 𝐭𝐡𝐞 𝐩𝐨𝐥𝐢𝐜𝐞 𝐥𝐨𝐠𝐢𝐜𝐚𝐥 𝐛𝐮𝐭 𝐬𝐞𝐥𝐟-𝐝𝐞𝐟𝐞𝐚𝐭𝐢𝐧𝐠 𝐩𝐡𝐢𝐥𝐨𝐬𝐨𝐩𝐡𝐲 𝐭𝐡𝐚𝐭, 𝐛𝐲 𝐢𝐧𝐜𝐚𝐫𝐜𝐞𝐫𝐚𝐭𝐢𝐧𝐠 𝐭𝐡𝐞 𝐫𝐞𝐥𝐚𝐭𝐢𝐯𝐞 𝐨𝐟 𝐭𝐡𝐞 𝐨𝐟𝐟𝐞𝐧𝐝𝐞𝐫, 𝐡𝐞 𝐰𝐢𝐥𝐥 𝐡𝐚𝐯𝐞 𝐧𝐨 𝐚𝐥𝐭𝐞𝐫𝐧𝐚𝐭𝐢𝐯𝐞 𝐰𝐚𝐲 𝐨𝐮𝐭 𝐭𝐡𝐚𝐧 𝐭𝐨 𝐫𝐞𝐥𝐢𝐧𝐪𝐮𝐢𝐬𝐡 𝐭𝐨 𝐭𝐡𝐞 𝐚𝐮𝐭𝐡𝐨𝐫𝐢𝐭𝐲 𝐟𝐨𝐫 𝐩𝐫𝐨𝐬𝐞𝐜𝐮𝐭𝐢𝐨𝐧. 𝐓𝐡𝐞 𝐚𝐜𝐭 𝐰𝐡𝐢𝐜𝐡 𝐢𝐬 𝐂𝐨𝐦𝐦𝐨𝐧 𝐢𝐧 𝐇𝐚𝐮𝐬𝐚 𝐋𝐚𝐧𝐝.

𝐇𝐨𝐰𝐞𝐯𝐞𝐫 𝐛𝐲 𝐭𝐡𝐞 𝐩𝐫𝐨𝐯𝐢𝐬𝐢𝐨𝐧𝐬 𝐨𝐟 𝐦𝐚𝐧𝐲 𝐞𝐧𝐚𝐜𝐭𝐦𝐞𝐧𝐭 𝐢𝐧 𝐍𝐢𝐠𝐞𝐫𝐢𝐚 𝐨𝐧 𝐭𝐡𝐢𝐬 𝐬𝐢𝐧𝐠𝐮𝐥𝐚𝐫 𝐚𝐜𝐭 𝐰𝐡𝐨𝐬𝐞 𝐰𝐨𝐫𝐝𝐢𝐧𝐠𝐬 𝐚𝐧𝐝 𝐢𝐧𝐭𝐞𝐧𝐝𝐦𝐞𝐧𝐭 𝐚𝐫𝐞 𝐚𝐧𝐭𝐚𝐠𝐨𝐧𝐢𝐬𝐭𝐢𝐜 𝐭𝐨 𝐭𝐡𝐞 𝐚𝐜𝐭 , 𝐞𝐯𝐢𝐝𝐞𝐧𝐜𝐞𝐝 𝐭𝐡𝐞 𝐡𝐨𝐫𝐫𝐞𝐧𝐝𝐨𝐮𝐬 𝐜𝐡𝐚𝐫𝐚𝐜𝐭𝐞𝐫𝐢𝐬𝐭𝐢𝐜 𝐨𝐟 𝐭𝐡𝐞 𝐚𝐜𝐭.

𝐁𝐲 𝐭𝐡𝐞 𝐩𝐫𝐨𝐯𝐢𝐬𝐢𝐨𝐧 𝐨𝐟 𝐭𝐡𝐞 𝐀𝐝𝐦𝐢𝐧𝐢𝐬𝐭𝐫𝐚𝐭𝐢𝐨𝐧 𝐨𝐟 𝐂𝐫𝐢𝐦𝐢𝐧𝐚𝐥 𝐉𝐮𝐬𝐭𝐢𝐜𝐞 𝐀𝐜𝐭 𝟐𝟎𝟏𝟓 𝐩𝐫𝐨𝐯𝐢𝐝𝐞𝐬 𝐭𝐡𝐚𝐭: ‘𝐀 𝐩𝐞𝐫𝐬𝐨𝐧 𝐬𝐡𝐚𝐥𝐥 𝐧𝐨𝐭 𝐛𝐞 𝐚𝐫𝐫𝐞𝐬𝐭𝐞𝐝 𝐢𝐧 𝐩𝐥𝐚𝐜𝐞 𝐨𝐟 𝐚 𝐬𝐮𝐬𝐩𝐞𝐜𝐭.’ 𝐓𝐡𝐞 𝐬𝐭𝐚𝐭𝐮𝐭𝐞 𝐰𝐡𝐢𝐜𝐡 𝐫𝐞𝐜𝐞𝐢𝐯𝐞𝐝 𝐦𝐚𝐬𝐬𝐢𝐯𝐞 𝐝𝐨𝐦𝐞𝐬𝐭𝐢𝐜𝐚𝐭𝐢𝐨𝐧 𝐭𝐡𝐫𝐨𝐮𝐠𝐡𝐨𝐮𝐭 𝐭𝐡𝐞 𝐟𝐞𝐝𝐞𝐫𝐚𝐭𝐢𝐨𝐧.

𝐓𝐡𝐮𝐬, 𝐊𝐚𝐝𝐮𝐧𝐚 𝐒𝐭𝐚𝐭𝐞 𝐀𝐝𝐦𝐢𝐧𝐢𝐬𝐭𝐫𝐚𝐭𝐢𝐨𝐧 𝐨𝐟 𝐂𝐫𝐢𝐦𝐢𝐧𝐚𝐥 𝐉𝐮𝐬𝐭𝐢𝐜𝐞  𝐋𝐚𝐰 , 𝟐𝟎𝟏𝟕 𝐩𝐫𝐨𝐯𝐢𝐝𝐞𝐬 𝐮𝐧𝐞𝐪𝐮𝐢𝐯𝐨𝐜𝐚𝐥𝐥𝐲 𝐮𝐧𝐝𝐞𝐫 𝐬𝐞𝐜𝐭𝐢𝐨𝐧 𝟐𝟗 𝐭𝐡𝐚𝐭:
 “𝐩𝐞𝐫𝐬𝐨𝐧 𝐬𝐡𝐚𝐥𝐥 𝐧𝐨𝐭 𝐛𝐞 𝐚𝐫𝐫𝐞𝐬𝐭𝐞𝐝 𝐢𝐧 𝐩𝐥𝐚𝐜𝐞 𝐨𝐟 𝐚 𝐒𝐮𝐬𝐩𝐞𝐜𝐭”.
𝐬𝐢𝐦𝐢𝐥𝐚𝐫𝐥𝐲, 𝐊𝐚𝐧𝐨 𝐬𝐭𝐚𝐭𝐞 𝐀𝐝𝐦𝐢𝐧𝐢𝐬𝐭𝐫𝐚𝐭𝐢𝐨𝐧 𝐨𝐟 𝐂𝐫𝐢𝐦𝐢𝐧𝐚𝐥 𝐉𝐮𝐬𝐭𝐢𝐜𝐞 𝐋𝐚𝐰, 𝟐𝟎𝟏𝟗 𝐮𝐧𝐝𝐞𝐫 𝐭𝐡𝐞 𝐫𝐨𝐨𝐟 𝐨𝐟 𝐬𝐞𝐜𝐭𝐢𝐨𝐧 𝟑𝟎 𝐭𝐨 𝐭𝐡𝐞 𝐞𝐟𝐟𝐞𝐜𝐭 𝐭𝐡𝐚𝐭:
 ” 𝐀 𝐩𝐞𝐫𝐬𝐨𝐧 𝐬𝐡𝐚𝐥𝐥 𝐧𝐨𝐭 𝐛𝐞 𝐚𝐫𝐫𝐞𝐬𝐭𝐞𝐝 𝐢𝐧 𝐩𝐥𝐚𝐜𝐞 𝐨𝐟 𝐚 𝐬𝐮𝐬𝐩𝐞𝐜𝐭”

T𝐡𝐞𝐬𝐞 𝐭𝐫𝐢𝐨 𝐥𝐚𝐰𝐬 𝐩𝐮𝐭 𝐢𝐭 𝐦𝐨𝐫𝐞 𝐞𝐱𝐩𝐫𝐞𝐬𝐬𝐞𝐝𝐥𝐲 𝐚𝐧𝐝 𝐞𝐱𝐩𝐥𝐢𝐜𝐢𝐭𝐥𝐲 𝐞𝐱𝐩𝐥𝐢𝐜𝐚𝐭𝐞 𝐭𝐡𝐞 𝐢𝐥𝐥𝐞𝐠𝐚𝐥𝐢𝐭𝐲 𝐨𝐟 𝐩𝐨𝐥𝐢𝐜𝐞 𝐭𝐨 𝐢𝐧𝐜𝐚𝐫𝐜𝐞𝐫𝐚𝐭𝐞 𝐚 𝐫𝐞𝐥𝐚𝐭𝐢𝐯𝐞 𝐢𝐧 𝐩𝐥𝐚𝐜𝐞 𝐨𝐟 𝐭𝐡𝐞 𝐫𝐮𝐧 𝐚𝐰𝐚𝐲 𝐬𝐮𝐬𝐩𝐞𝐜𝐭.

𝐈𝐧 𝐚𝐝𝐝𝐢𝐭𝐢𝐨𝐧, 𝐭𝐡𝐢𝐬 𝐩𝐫𝐨𝐯𝐢𝐬𝐢𝐨𝐧𝐚𝐥 𝐚𝐬𝐬𝐞𝐫𝐭𝐢𝐨𝐧 𝐢𝐬 𝐧𝐨𝐭 𝐰𝐢𝐭𝐡𝐨𝐮𝐭 𝐣𝐮𝐝𝐢𝐜𝐢𝐚𝐥 𝐛𝐥𝐞𝐬𝐬𝐢𝐧𝐠 𝐚𝐧𝐝 𝐯𝐢𝐧𝐝𝐢𝐜𝐚𝐭𝐢𝐨𝐧. 𝐉𝐮𝐬𝐭𝐢𝐜𝐞𝐬 𝐦𝐚𝐝𝐞 𝐚 𝐬𝐭𝐞𝐫𝐧 𝐯𝐨𝐜𝐢𝐟𝐞𝐫𝐨𝐮𝐬 𝐩𝐫𝐨𝐧𝐨𝐮𝐧𝐜𝐞𝐦𝐞𝐧𝐭 𝐰𝐢𝐭𝐡 𝐫𝐞𝐠𝐚𝐫𝐝 𝐭𝐨 𝐭𝐡𝐞 𝐮𝐧𝐜𝐨𝐧𝐬𝐭𝐢𝐭𝐮𝐭𝐢𝐨𝐧𝐚𝐥𝐢𝐭𝐲 𝐨𝐟 𝐬𝐮𝐛𝐬𝐭𝐢𝐭𝐮𝐭𝐢𝐨𝐧𝐚𝐥 𝐚𝐫𝐫𝐞𝐬𝐭. 𝐅𝐨𝐫 𝐢𝐧 𝐚 𝐜𝐢𝐯𝐢𝐥𝐢𝐳𝐞𝐝 𝐬𝐨𝐜𝐢𝐞𝐭𝐲 𝐠𝐨𝐯𝐞𝐫𝐧 𝐛𝐲 𝐞𝐪𝐮𝐢𝐭𝐲, 𝐢𝐭 𝐰𝐢𝐥𝐥 𝐛𝐞 𝐚𝐠𝐚𝐢𝐧𝐬𝐭 𝐭𝐡𝐞 𝐩𝐫𝐢𝐧𝐜𝐢𝐩𝐥𝐞 𝐨𝐟 𝐣𝐮𝐬𝐭𝐢𝐜𝐞 𝐭𝐨 𝐦𝐚𝐤𝐞 𝐭𝐡𝐞 𝐨𝐟𝐟𝐞𝐧𝐜𝐞 𝐥𝐢𝐚𝐛𝐥𝐢𝐭𝐢𝐞𝐬 𝐜𝐨𝐦𝐦𝐢𝐭𝐞𝐝 𝐛𝐲 𝐬𝐨𝐦𝐞𝐛𝐨𝐝𝐲 𝐭𝐫𝐚𝐧𝐬𝐟𝐞𝐫𝐫𝐚𝐛𝐥𝐞 𝐨𝐫 𝐢𝐧𝐡𝐞𝐫𝐢𝐭𝐚𝐛𝐥𝐞 𝐨𝐧𝐭𝐨 𝐡𝐢𝐬 𝐟𝐚𝐦𝐢𝐥𝐲.

𝐈𝐧 𝐭𝐡𝐞 𝐜𝐚𝐬𝐞 𝐨𝐟 𝗔𝗸𝗽𝗮𝗻 𝘃. 𝗦𝘁𝗮𝘁𝗲 (𝟮𝟬𝟬𝟴) 𝟭𝟰 𝗡𝗪𝗟𝗥 (𝗽𝘁 𝟭𝟭𝟬𝟲) 𝟳𝟮, 𝐭𝐡𝐞 𝐜𝐨𝐮𝐫𝐭 𝐣𝐮𝐝𝐢𝐜𝐢𝐚𝐥𝐥𝐲 𝐞𝐧𝐜𝐚𝐩𝐬𝐮𝐥𝐚𝐭𝐞𝐝 𝐭𝐡𝐚𝐭: ‘𝗧𝗵𝗲𝗿𝗲 𝗶𝘀 𝗻𝗼 𝗹𝗮𝘄 𝘁𝗵𝗮𝘁 𝘄𝗵𝗲𝗿𝗲 𝘁𝗵𝗲 𝗼𝗳𝗳𝗲𝗻𝗱𝗲𝗿 𝗶𝘀 𝘂𝗻𝗮𝗯𝗹𝗲 𝘁𝗼 𝗯𝗲 𝗮𝗿𝗿𝗲𝘀𝘁𝗲𝗱, 𝗵𝗶𝘀 𝗿𝗲𝗹𝗮𝘁𝗶𝘃𝗲 𝘀𝗵𝗼𝘂𝗹𝗱 𝗯𝗲 𝗮𝗿𝗿𝗲𝘀𝘁𝗲𝗱.’

𝗜𝗻  𝐬𝐢𝐦𝐢𝐥𝐚𝐫 𝐜𝐚𝐬𝐞 𝐨𝐟  𝗔𝗖𝗕 𝘃. 𝗢𝗸𝗼𝗻𝗸𝘄𝗼 (𝟭𝟵𝟵𝟳) 𝟭 𝗡𝗪𝗟𝗥 (𝗽𝘁 𝟰𝟴𝟬) 𝟭𝟵𝟰, 𝐭𝐡𝐞 𝐦𝐨𝐭𝐡𝐞𝐫 𝐨𝐟 𝐭𝐡𝐞 𝐚𝐜𝐜𝐮𝐬𝐞𝐝 𝐰𝐚𝐬 𝐚𝐫𝐫𝐞𝐬𝐭𝐞𝐝 𝐚𝐧𝐝 𝐝𝐞𝐭𝐚𝐢𝐧𝐞𝐝 𝐛𝐲 𝐭𝐡𝐞 𝐍𝐢𝐠𝐞𝐫𝐢𝐚𝐧 𝐩𝐨𝐥𝐢𝐜𝐞 𝐟𝐨𝐫 𝐭𝐡𝐞 𝐨𝐟𝐟𝐞𝐧𝐜𝐞 𝐨𝐟 𝐡𝐞𝐫 𝐜𝐡𝐢𝐥𝐝.𝐈𝐧 𝐝𝐞𝐥𝐢𝐯𝐞𝐫𝐢𝐧𝐠 𝐭𝐡𝐞 𝐣𝐮𝐝𝐠𝐞𝐦𝐞𝐧𝐭, 𝐭𝐡𝐞 𝐜𝐨𝐮𝐫𝐭 𝐩𝐞𝐫 , 𝐇𝐢𝐬 𝐥𝐨𝐫𝐝𝐬𝐡𝐢𝐩 , 𝗡𝗶𝗸𝗶 𝗧𝗼𝗯𝗶 𝐨𝐛𝐬𝐞𝐫𝐯𝐞𝐝 𝐭𝐡𝐚𝐭:
 ‘𝗜 𝗸𝗻𝗼𝘄  𝗼𝗳 𝗻𝗼 𝗹𝗮𝘄 𝘄𝗵𝗶𝗰𝗵 𝗮𝘂𝘁𝗵𝗼𝗿𝗶𝘇𝗲𝘀 𝘁𝗵𝗲 𝗽𝗼𝗹𝗶𝗰𝗲 𝘁𝗼 𝗮𝗿𝗿𝗲𝘀𝘁 𝗮 𝗺𝗼𝘁𝗵𝗲𝗿 𝗳𝗼𝗿 𝗮𝗻 𝗼𝗳𝗳𝗲𝗻𝗰𝗲 𝗰𝗼𝗺𝗺𝗶𝘁𝘁𝗲𝗱 𝗼𝗿 𝗽𝘂𝗿𝗽𝗼𝗿𝘁𝗲𝗱𝗹𝘆 𝗰𝗼𝗺𝗺𝗶𝘁𝘁𝗲𝗱 𝗯𝘆 𝘁𝗵𝗲 𝘀𝗼𝗻.
𝐌𝐨𝐫𝐞 𝐨𝐯𝐞𝐫 𝐢𝐧 𝗦𝘂𝗻𝗱𝗮𝘆 𝗢𝗱𝗼𝗴𝘄𝘂 𝘃. 𝗧𝗵𝗲 𝗦𝘁𝗮𝘁𝗲 (𝟮𝟬𝟭𝟯) 𝗟𝗟𝗣𝗘𝗟𝗥-𝟮𝟮𝟬𝟯𝟵𝟭 , 𝐭𝐡𝐞 𝐜𝐨𝐮𝐫𝐭 𝐨𝐟 𝐀𝐩𝐩𝐞𝐚𝐥 𝐞𝐱𝐚𝐦𝐢𝐧𝐞𝐝 𝐰𝐡𝐞𝐭𝐡𝐞𝐫 𝐩𝐨𝐥𝐢𝐜𝐞 𝐰𝐚𝐬 𝐥𝐚𝐰𝐟𝐮𝐥𝐥𝐲 𝐜𝐨𝐫𝐫𝐞𝐜𝐭 𝐭𝐨 𝐡𝐚𝐯𝐞 𝐚𝐫𝐫𝐞𝐬𝐭𝐞𝐝 𝐚 𝐩𝐞𝐫𝐬𝐨𝐧 𝐟𝐨𝐫 𝐚𝐧 𝐨𝐟𝐟𝐞𝐧𝐜𝐞 𝐜𝐨𝐦𝐦𝐢𝐭𝐭𝐞𝐝 𝐛𝐲 𝐚𝐧𝐨𝐭𝐡𝐞𝐫 𝐩𝐞𝐫𝐬𝐨𝐧 . 𝐓𝐡𝐞 𝐜𝐨𝐮𝐫𝐭 𝐬𝐭𝐞𝐫𝐧𝐥𝐲 𝐫𝐞𝐦𝐚𝐫𝐤𝐞𝐝 𝐭𝐡𝐮𝐬:

“𝗜𝘁 𝗶𝘀 𝗯𝗲𝘆𝗼𝗻𝗱 𝗱𝗼𝘂𝗯𝘁 𝘁𝗵𝗮𝘁 𝗮𝗻 𝗮𝗰𝗰𝘂𝘀𝗲𝗱 𝗽𝗲𝗿𝘀𝗼𝗻 𝗰𝗮𝗻𝗻𝗼𝘁 𝗯𝗲 𝗵𝗲𝗹𝗱 𝗿𝗲𝘀𝗽𝗼𝗻𝘀𝗶𝗯𝗹𝗲 𝗳𝗼𝗿 𝗮𝗻 𝗮𝗰𝘁 𝗵𝗲 𝗱𝗶𝗱 𝗻𝗼𝘁 𝗰𝗼𝗺𝗺𝗶𝘁”

𝐀𝐥𝐥 𝐭𝐡𝐞𝐬𝐞 𝐣𝐮𝐝𝐢𝐜𝐢𝐚𝐥 𝐚𝐧𝐝 𝐬𝐭𝐚𝐭𝐮𝐭𝐨𝐫𝐲 𝐣𝐮𝐬𝐭𝐢𝐟𝐢𝐜𝐚𝐭𝐢𝐨𝐧𝐬 𝐢𝐬 𝐭𝐨 𝐭𝐡𝐞 𝐞𝐟𝐟𝐞𝐜𝐭 𝐭𝐡𝐚𝐭, 𝐚𝐧 𝐢𝐧𝐧𝐨𝐜𝐞𝐧𝐭 𝐩𝐞𝐫𝐬𝐨𝐧 𝐬𝐡𝐚𝐥𝐥 𝐧𝐨𝐭 𝐛𝐞 𝐩𝐮𝐫𝐧𝐢𝐬𝐡𝐞𝐝 𝐟𝐨𝐫 𝐭𝐡𝐞 𝐨𝐟𝐟𝐞𝐧𝐜𝐞 𝐡𝐞 𝐢𝐬 𝐧𝐨𝐭 𝐚𝐰𝐚𝐫𝐞 𝐨𝐟 𝐢𝐭 𝐢𝐬 𝐜𝐨𝐦𝐦𝐢𝐬𝐬𝐢𝐨𝐧 𝐨𝐫 𝐨𝐦𝐢𝐬𝐬𝐢𝐨𝐧 ; 𝐞𝐪𝐮𝐚𝐥𝐥𝐲 𝐢𝐭 𝐬𝐮𝐛𝐬𝐭𝐚𝐧𝐭𝐢𝐚𝐭𝐞𝐝 𝐭𝐡𝐞 𝐞𝐱𝐢𝐬𝐭𝐞𝐧𝐜𝐞 𝐨𝐟 𝐫𝐮𝐥𝐞 𝐨𝐟 𝐥𝐚𝐰 𝐢𝐧 𝐍𝐢𝐠𝐞𝐫𝐢𝐚 𝐚𝐧𝐝 𝐭𝐡𝐞 𝐬𝐭𝐫𝐢𝐜𝐭 𝐨𝐛𝐬𝐞𝐫𝐯𝐚𝐧𝐜𝐞 𝐨𝐟 𝐧𝐚𝐭𝐮𝐫𝐚𝐥 𝐣𝐮𝐬𝐭𝐢𝐜𝐞 𝐩𝐫𝐢𝐧𝐜𝐢𝐩𝐥𝐞𝐬.
𝐇𝐨𝐰𝐞𝐯𝐞𝐫,𝐰𝐡𝐞𝐫𝐞 𝐩𝐨𝐥𝐢𝐜𝐞 𝐝𝐞𝐭𝐚𝐢𝐧𝐞𝐝 𝐚 𝐩𝐞𝐫𝐬𝐨𝐧 𝐢𝐧 𝐥𝐢𝐞𝐮 𝐨𝐟 𝐬𝐮𝐬𝐩𝐞𝐜𝐭 𝐰𝐡𝐚𝐭 𝐰𝐢𝐥𝐥 𝐛𝐞 𝐡𝐢𝐬 𝐟𝐚𝐭𝐞?

Remedy against Unlawful Detention by Police

𝐖𝐡𝐞𝐫𝐞 𝐚 𝐩𝐞𝐫𝐬𝐨𝐧 𝐢𝐬 𝐰𝐫𝐨𝐧𝐠𝐥𝐲 𝐨𝐫 𝐮𝐧𝐥𝐚𝐰𝐟𝐮𝐥𝐥𝐲 𝐝𝐞𝐭𝐚𝐢𝐧𝐞𝐝 𝐛𝐞𝐲𝐨𝐧𝐝 𝐫𝐞𝐚𝐬𝐨𝐧𝐚𝐛𝐥𝐞 𝐭𝐢𝐦𝐞 𝐟𝐨𝐫 𝐭𝐡𝐞 𝐨𝐟𝐟𝐞𝐧𝐜𝐞 𝐡𝐞 𝐢𝐬 𝐧𝐞𝐢𝐭𝐡𝐞𝐫 𝐚𝐧 𝐚𝐛𝐞𝐭𝐭𝐨𝐫 𝐧𝐨𝐫 𝐩𝐚𝐫𝐭𝐲 𝐭𝐨 𝐢𝐭𝐬 𝐜𝐨𝐦𝐦𝐢𝐬𝐬𝐢𝐨𝐧 𝐨𝐫 𝐨𝐦𝐢𝐬𝐬𝐢𝐨𝐧, 𝐨𝐫 𝐡𝐞 𝐡𝐚𝐬 𝐧𝐨 𝐩𝐫𝐢𝐨𝐫 𝐤𝐧𝐨𝐰𝐥𝐞𝐝𝐠𝐞 𝐨𝐟 𝐢𝐭𝐬 𝐛𝐞𝐞𝐧 𝐜𝐨𝐦𝐦𝐢𝐭𝐭𝐞𝐝 𝐛𝐲 𝐡𝐢𝐬 𝐫𝐞𝐥𝐚𝐭𝐢𝐨𝐧, 𝐡𝐞 𝐦𝐚𝐲 𝐬𝐞𝐞𝐤 𝐫𝐞𝐝𝐫𝐞𝐬𝐬 𝐢𝐧 𝐭𝐡𝐞 𝐡𝐢𝐠𝐡 𝐜𝐨𝐮𝐫𝐭 𝐟𝐨𝐫 𝐭𝐡𝐞 𝐞𝐧𝐟𝐨𝐫𝐜𝐞𝐦𝐞𝐧𝐭 𝐨𝐟 𝐡𝐢𝐬/𝐡𝐞𝐫 𝐟𝐮𝐧𝐝𝐚𝐦𝐞𝐧𝐭𝐚𝐥 𝐫𝐢𝐠𝐡𝐭𝐬 𝐚𝐧𝐝 𝐰𝐨𝐮𝐥𝐝 𝐛𝐞 𝐞𝐧𝐭𝐢𝐭𝐥𝐞𝐝 𝐭𝐨 𝐜𝐨𝐦𝐩𝐞𝐧𝐬𝐚𝐭𝐢𝐨𝐧 𝐟𝐨𝐫 𝐰𝐫𝐨𝐧𝐠𝐟𝐮𝐥 𝐝𝐞𝐭𝐞𝐧𝐭𝐢𝐨𝐧. 𝐬𝐞𝐞 𝐭𝐡𝐞 𝐟𝐨𝐥𝐥𝐨𝐰𝐢𝐧𝐠 𝐜𝐚𝐬𝐞𝐬 𝗝𝗔𝗝𝗔 𝐕.𝗖𝗢𝗠𝗠𝗜𝗦𝗦𝗜𝗢𝗡𝗘𝗥 𝗢𝗙 𝗣𝗢𝗟𝗜𝗖𝗘 𝗢𝗙 𝗥𝗜𝗩𝗘𝗥𝗦 𝗦𝗧𝗔𝗧𝗘 &𝗢𝗥𝗦 (𝟐𝟎𝟏𝟑) 𝟔 𝐍𝐖𝐋𝐑 (𝐏𝐭. 𝟏𝟑𝟓𝟎)
𝟐𝟐𝟓.𝐂𝐇𝐈𝐄𝐅 𝐈𝐁𝐑𝐀𝐇𝐈𝐌 𝐒𝐀𝐋𝐀𝐌𝐈 𝐯. 𝐏𝐀 𝐉𝐎𝐒𝐈𝐀𝐇 𝐎𝐘𝐄𝐃𝐈𝐑𝐀𝐍 𝐎𝐋𝐀𝐎𝐘𝐄 & 𝐀𝐍𝐎𝐑 (𝟐𝟎𝟏𝟖) 𝐋𝐏𝐄𝐋𝐑-𝟒𝟕𝟐𝟓𝟔(𝐂𝐀) –𝐁𝐄𝐄𝐈𝐎𝐑 𝐈𝐒𝐇𝐄𝐍𝐆𝐄 𝐯. 𝐂𝐎𝐌𝐌𝐈𝐒𝐒𝐈𝐎𝐍𝐄𝐑 𝐎𝐅 𝐏𝐎𝐋𝐈𝐂𝐄, 𝐏𝐋𝐀𝐓𝐄𝐀𝐔 𝐒𝐓𝐀𝐓𝐄 & 𝐀𝐍𝐎𝐑 (𝟐𝟎𝟏𝟗) 𝐋𝐏𝐄𝐋𝐑-𝟒𝟖𝟑𝟗𝟎(𝐂𝐀)

Conclusion

𝐅𝐫𝐨𝐦 𝐭𝐡𝐞 𝐟𝐨𝐫𝐞𝐠𝐨𝐢𝐧𝐠, 𝐢𝐭 𝐢𝐬 𝐨𝐛𝐯𝐢𝐨𝐮𝐬 𝐭𝐡𝐚𝐭, 𝐭𝐡𝐞 𝐩𝐨𝐥𝐢𝐜𝐞 𝐚𝐜𝐭 𝐨𝐟 𝐬𝐮𝐛𝐬𝐭𝐢𝐭𝐮𝐭𝐢𝐧𝐠 𝐬𝐮𝐬𝐩𝐞𝐜𝐭 𝐰𝐢𝐭𝐡 𝐡𝐢𝐬 𝐢𝐧𝐧𝐨𝐜𝐞𝐧𝐭 𝐫𝐞𝐥𝐚𝐭𝐢𝐯𝐞 𝐢𝐬 𝐝𝐞𝐬𝐩𝐢𝐜𝐚𝐛𝐥𝐞;𝐭𝐡𝐞 𝐨𝐝𝐨𝐮𝐫𝐥𝐢𝐧𝐞𝐬𝐬 𝐬𝐦𝐞𝐥𝐥𝐬 𝐭𝐨  𝐡𝐢𝐠𝐡  𝐡𝐞𝐚𝐯𝐞𝐧  𝐚𝐧𝐝  𝐢𝐬  𝐢𝐧  𝐭𝐨𝐭𝐚𝐥  𝐝𝐢𝐬𝐡𝐚𝐫𝐦𝐨𝐧𝐲 𝐰𝐢𝐭𝐡  𝐧𝐚𝐭𝐮𝐫𝐚𝐥  𝐣𝐮𝐬𝐭𝐢𝐜𝐞; 𝐧𝐨𝐭  𝐢𝐧  𝐩𝐚𝐫𝐢  𝐦𝐚𝐭𝐞𝐫𝐢𝐚  𝐰𝐢𝐭𝐡  𝐭𝐡𝐞  𝐩𝐫𝐨𝐯𝐢𝐬𝐢𝐨𝐧𝐬  𝐨𝐟  𝐨𝐮𝐫  𝐥𝐚𝐰𝐬  𝐚𝐧𝐝  𝐢𝐧  𝐜𝐨𝐦𝐩𝐥𝐞𝐭𝐞  𝐝𝐢𝐬𝐬𝐨𝐧𝐚𝐧𝐜𝐞 𝐭𝐨  𝐜𝐢𝐯𝐢𝐥𝐬𝐞𝐝  𝐞𝐱𝐢𝐬𝐭𝐞𝐧𝐜𝐞 𝐨𝐟  𝐨𝐮𝐫  𝐜𝐨𝐮𝐧𝐭𝐫𝐲.

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To What Extent Should The National Assembly Exercise Its Investigative Functions Under Section 88 of The Constitution of the Federal Republic of Nigeria, 1999 (As Amended)?

It is not in doubt that the pivot of the legislative arm of government in any federalism is to make laws for the peace, order and good governance of the country.

In Nigeria, this power is conferred on the National Assembly by virtue of section 4 of the Constitution of the Federal Republic of Nigeria, 1999 as amended (hereinafter referred to as CFRN). The list of items to which the legislature has power to make laws are well enunciated and entrenched in the Second Schedule to the Constitution and the items in that list are so enormous.

Nevertheless, apart from these powers/functions conferred on the National Assembly by section 4 of the CFRN, it also relishes investigative flavour under section 88 of the same law.

By the provision of the latter section, the National Assembly is bestowed with the power to investigate or cause to investigate into the affairs of any person, authority, ministry or department of government. However, this power is not general as the law provides the extent to which it can be exercised.

For the seek of being apt to the point, I will be furnishing you with the imports of section 88 below;

Subsection (1) paragraph (a) is to the effect that the National Assembly, be it the Senate or the House of Representatives shall have power to investigate or direct to investigate any matter or thing with respect to which it has power to make laws. Paragraph (b) of the same section empowers the House or the Senate to carry out investigation into the conduct of affairs of any person, authority, ministry or department of government charged with or intended to be charged with the duty of executing laws enacted by the National Assembly disbursing moneys appropriated or to be appropriated by the National Assembly.

Subsection (2) gave a stern warning to the effect that the powers conferred to the National Assembly by section 88 shall be for the purpose of enabling it carry out its legislative roles as well as to expose corruption, inefficiency or waste in the execution of laws within its legislative powers and in the disbursement or administration of funds appropriated by it. By extension, section 89 stipulates the procedures for carrying out the investigative functions.

From the above, it can be gleaned that the National Assembly in the exercise of its investigative power is not clothed with such power(s) as to investigate the activities/affairs of any person or seek for disclosure of certain information from any person for
any reason whatsoever SAVE when such investigation or disclosure will help it in its law making function – i.e. it will help it to make new laws or amend the existing laws or even repeal the the laws.

Therefore, going outside these provisions is not only tantamount to breaching the fons et origo of our laws – the constitution but will also lead to an abuse of power. The hallmark of separation of power which allows each arm of government to perform within its jurisdiction and never to work ultra vires will be grossly undermined if the National Assembly should be allowed to probe the affairs or activities of any person beyond the extent to which the Constitution particularly section 88 has provided.

By doing so, the legislature will abruptly metamorphose to a demi-god who will illegally coronate itself the title of executive arm government and at the same time arrogate to itself the powers of the judiciary, judging their own cases and giving judgement in their own favour with an overreaching effect of undermining the principle of nemo judex in causa sua.

The court had in litany of cases given its judicial recognitions and blessings to this all important position of the law and thus, tamed the propensity of the law making arm of the government moving beyond borders.

First of these cases is that of Momoh v Senate of the National Assembly & Ors¹. In this case, the Senate of the National Assembly led by Joseph Wayas had in response to Tony Momoh’s Daily Times Publication made on the 4th of February, 1980 which alleged that the legislators have become contractors – an article which the Senate of the Second Republic viewed as detrimental to its reputation summoned the journalist to appear before it to clarify those press comments and as well disclose his source of information. The renowned journalist, Tony Momoh challenged the invitation to court.

In the ruling of the case, the trial court relying on section 88(2)²) held that no power exists under the section for general investigation and that the freedom of expression protects a journalist’s right not to disclose his source of information, as to do otherwise would amount to infringement of such a journalist.

On appeal, the Court of Appeal laid down the general principles guiding the oversight functions of the National Assembly particularly with respect to its Investigative powers/functions. The Court of Appeal held that the press is not a fourth arm of government or a constitutional sanctuary foreclosed for probes concerning inquiries on the legislative domain. Thus, a newspaper publisher has no special immunity and the press can be ordered to disclose his sources in “exceptional cases.”

The appellate court further held that the powers of the National Assembly to investigate are not general but are limited to the executing and administering laws enacted by the National Assembly and in the disbursement of money appropriated by it.

The second case is that of El-Rufai v House of Representatives³), the Court of Appeal in this case held that the provision of section 88⁴ is not designed to enable the legislature usurp the general investigative functions of the executive nor the adjudicative functions of the judiciary rather the section enables it either to exercise the power only with respect to any matter or thing with respect to which it has power to make laws and the conduct of affairs of any person, authority, ministry or government, department charged or intended to be charged with the duty of or responsibility for executing or administering laws enacted by the National Assembly and disbursing or administering money appropriated or intended to be appropriated by the National Assembly.

The appellate court held that section 88 does not constitute the National Assembly as an Ombudsman inviting and scrutinizing every member of the public for the purpose of exposing corruption, inefficiency and waste and that subsection (2) limits the power of the National Assembly.

The Court of Appeal went further to state that it is not enough that the matter for investigation is within the legislative competence of the House, a proper and lawful investigation must have been constituted.

Lastly, the extent to which the National Assembly should carry out its investigative functions/powers was keenly captured in the foreign case of Walkins v US⁵). In this case, the learned Law Lord held that the power of the congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the congress to remedy them.

But, broad as this power of inquiry is, it is not unlimited. There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress nor is the Congress a law enforcement or trial agency. No inquiry is an end in itself; it must be related to, and in furtherance of a legitimate task of the congress. Investigations conducted solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated are indefensible.

Conclusion

Stemming from the provisions of the Constitution and judicial decisions, it is my submission that summons on persons, authorities, departments or agencies of government by the National Assembly should not be propelled by emotions and sentiments neither should it be for the purpose of making itself a judge deciding the activities of any person (s), agencies, etc. they think did not go down well with it; rather it’s summons should be within the bounds and confines of section 88 of the CFRN, 1999 (as amended). No matter the extent to which the National Assembly may think that person(s) in question has disparaged it, it is obliged to stick to what the law says.

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1. 1982 (FNLR) 307 [↩]
2. CFRN, 1999 (as amended [↩]
3. 3PLR/2003/63 (CA [↩]
4. Ibid [↩]
5. 354 U.S. 178 (1957 [↩]

NATO: An Overview of the Intergovernmental Organization

Introduction

In the ever-changing topography of international politics and security, one organization (NATO) rouses as a citadel of political cooperation and democratic partnership. Its tentacles have transcended the troubled shores of the North Atlantic region leaving in its wake a dignified cornerstone for the study of international security architecture.

An encapsulation of collective defense, freedom, solidarity and military cooperation is the North Atlantic Treaty Organization, NATO. Primarily, NATO evolved as a military response to deterring Soviet Union expansionism, forbidding the revival of nationalist militarism in Europe and encouraging European political integration.

As Jane Smith rightly surmised, “NATO serves as a political alliance as much as a military one, fostering a community of like-minded nations dedicated to preserving peace and stability in the Euro-Atlantic region.” The organizational and operational structure of NATO has been praised as unparalleled assets in deferring aggressors and relatively responding to emerging threats.

In light of this, this article seeks to explore the organizational structure and significance of the reputable intergovernmental organization with a view to underscoring its relevance in global peace, security and cooperation.

Overview of NATO

The North Atlantic Treaty Organization, otherwise known as NATO, started out as a military alliance in 1949 to create a counterweight to the predominance of the Soviet Union in the Central and Eastern region of Europe following the aftermath of World War II.

The threat of the Soviet Union expansion into the frontiers of Europe as well as the urgent need for collective security from external potential aggressors propelled the twelve founding member-states of NATO to pledge their allegiance to its formation. This crystalized into a formidable military defense strategy which was institutional all through the Cold war.

See also: Overview of the International Court of Justice

Furthermore, these founding countries include the United States, the United Kingdom, France, Belgium, Canada, Iceland, Denmark, Norway, Portugal, the Grand Duchy of Luxembourg, the Netherlands, and Italy.

This military alliance, which later transcended into an intergovernmental organization, was established on April 4, 1949 with the ratification of the North Atlantic Treaty in Washington D.C.

Fundamentally, its objective lies on the need to safeguard the Allies’ freedom through political and military methods. It is the practical means through which the security of Europe and North America are permanently tied together. This has remained the principal security instrument of the transatlantic community and the expression of its democratic values as an intergovernmental organization.

Sequentially, the dissolution of the Soviet Union and the Warsaw Pact on December 25th, 1991 has been instrumental in its involvement in various military operations in the Balkans, Middle East, South Asia, and Africa. With its adaptable characteristics, it has extended its membership status to former Warsaw Pact countries in order to foster stability in the post-communist regions of Europe and North America.

As it stands, NATO is a democratic intergovernmental organization with over thirty-two sovereign member states. The 32 current member states of NATO include Albania, Belgium, Bulgaria, Canada, Croatia, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Lithuania, Luxembourg, Montenegro, the Netherlands, North Macedonia, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Turkey, the United Kingdom, and the United States.

Structure of NATO

It is a well-known fact that all agencies and organizations of NATO are integrated into either the civilian or command structure. For the most part, they perform roles and functions that directly or indirectly support the security role of the alliance as a whole. The civilian structure consists of the North Atlantic Council, the NATO Parliamentary Assembly and the NATO Headquarters.

The North Atlantic Council (NAC);

It is the body which has effective governance authority and powers of decision in NATO, consisting of member states’ permanent representatives or representatives at higher level (ministers of foreign affairs or defense, or heads of state or government). It is composed of ambassadors or representatives from member states who convene at least once a week to take major decisions regarding NATO’s administrative policies. It also meets at the level of Foreign Ministers, Defence Ministers and Heads of State and Government.

The meetings of the North Atlantic Council are chaired by a Secretary-General. That is, the NAC is headed by a Secretary-General who is appointed from Europe. When decisions have to be made, action is agreed upon by consensus of the representatives of each member-states. The work of the Council is prepared by dozens of subordinate committees that are responsible for specific areas of policy. The NAC is regarded as the highest decision-making body of NATO.

The NATO Parliamentary Assembly;

Also known as the NATO PA is regarded as a body that sets broad strategic goals for NATO. It meets at two sessions per year. The NATO Parliamentary Assembly interacts directly with the parliamentary structures of the national governments of the member states which appoint Permanent Members, or ambassadors to the North Atlantic Council (NAC).

The NATO Parliamentary Assembly is made up of legislators from the member countries of the North Atlantic Alliance as well as thirteen associate members. It is however crucially a structure different from NATO, and aims to join deputies of NATO countries in order to discuss security policies on the NATO Council.

NATO Headquarters;

It is located on Boulevard Léopold III, Brussels. The staff at the Headquarters is composed of national delegations of member countries and includes civilian and military liaison offices and officers or diplomatic missions and diplomats of partner countries, as well as the International Staff and International Military Staff filled from serving members of the armed forces of member states.

NATO Command Structure (NCS);

There are three tiers of command: strategic, operational, and tactical. The Command Structure is based on functionality rather than geography. The NATO Command Structure is responsible for the operational command and control of NATO military forces.

This command structure consists of representatives of the military chiefs of staff of the member states and it subsumes two strategic commands: Allied Command Operations (ACO) and Allied Command Transformation (ACT). It is divided into strategic and operational commands with the Supreme Headquarters Allied Powers Europe (SHAPE) located in Mons, Belgium, which is responsible for operations in the European theater.

SHAPE, home to ACO, is a strategic headquarters. Its role is to prepare, plan, conduct and execute NATO military operations, missions and tasks in order to achieve the strategic objectives of the Alliance.

The Allied Command Operations (ACO), headed by the SACEUR and located at Supreme Headquarters Allied Powers Europe (SHAPE) in Casteau, Belgium, is responsible for NATO’s military operations worldwide. However, note that the position of SACEUR has always been held by an American. The ACO advises and assists the NAC on military matters. Also, it oversees the conduct of NATO’s military operations, including crisis response, collective defense, and partnership activities. It coordinates with partner countries and international organizations to enhance security cooperation and interoperability.

The Allied Command Transformation (ACT) is responsible for developing and delivering the capabilities and expertise required by NATO. This helps provide NATO with critical insights and maintain decisive advantage over its adversaries. It is located in Norfolk, Virginia, United States. In addition, it focuses on developing innovative concepts, doctrines, and technologies to address emerging security challenges and enhance NATO’s military effectiveness.

In utmost totality, the NCS oversees planning, conduct, and execution of NATO missions, exercises, and operations.

Benefits of Joining NATO to Member States

The foregoing are the beneficial advantages a state will enjoy as a member of NATO. These include and not exclude;

• Stability and economic growth;

Becoming a member of NATO enables a country to be financially stable and upright thereby facilitating economic growth within the country and its territorial borders. NATO amplifies a country relationship with other states as it creates an avenue for the growth and development of member-states

• Economic Benefits;

NATO membership attracts foreign investment and enhances economic development by providing a stable and secure environment for businesses to operate.

• Participation in decision making;

One of the unique features that characterize NATO is its decision making process. NATO offers members the democratic freedom to partake in its decisions through collaboration, discourse, dialogue, consensus and due consultation. This ensures unanimity of every decision taken within NATO.

• International visibility;

Being a member of NATO gives a country the privilege of making impressions within the organization thereby boosting the visibility of the nation among other nations.

• Collective defense;

The security of one country is the foundation for democratic and prosperous society. Without the security of a country, economic stability and growth seems far-fetched. One of the benefits of a country joining NATO is the fact that it protects the territorial integrity and sovereignty of member states.

Conclusion

As an intergovernmental organization, NATO has served as a bulwark against aggression, safeguarding the freedom and security of its member states.

Although it was created as a military comeback against the aggressive tendencies of the Soviet Union during the Cold War, it has transformed into a diplomatic institution facilitating the peace and security of member-states within Europe and North America.

It is an integral institution in that it portrays and is still portraying monumental achievements through its collective defense principle and commitment to democratic values.

References

• “Milestones: 1945–1952 – Office of the Historian” https://history.state.gov/milestones/1945-1952/nato

• “NATO – Statistics & Facts | Statista” https://www.statista.com/topics/9079/nato/#topicOverview

• “SHAPE | The NATO Structure” https://shape.nato.int/page11283634/knowing-nato/episodes/the-nato-structure

• “Structure of NATO – Wikipedia” https://en.m.wikipedia.org/wiki/Structure_of_NATO

• “Allied Command Transformation’s Role in the NATO Defence Planning Process – NATO’s ACT” https://www.act.nato.int/allied-command-transformations-role-in-the-nato-defence-planning-process/

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Reevaluating Consent: Modern Perspectives on Marital Immunity in Sexual Assault Cases

Ashley had just gone through a gynaecology procedure, and she still experiences discomfort. Her husband Jacob, a conventional believer of, “I own your body as long as you are my wife,” is at the center of a troubling incident that unfolded one night in their residence.

“Leave me alone, Jacob. I don’t want to do this right now,” said Ashley.

“Well, we are married. I own your body,” he retorted.

“I really don’t want to do this.”

“You leave me no choice, Ashley.” Does the deed forcefully.

“There is a reason for the word consensual. You can’t just do anything you want with and to my body. Marriage doesn’t excuse rape. I should have total control over my own body. You just violated me now,” Ashley said, crying.

“We are married, and there is no sort of violation. It is my right,” he said, glaring coldly at her bruised body.

The above scenario may appear familiar; hence, the article will focus on Ashley’s problem.

The purpose of this article is to change the narrative that consent to marriage is synonymous with consent to sexual intercourse in perpetuity as it is a violation of the woman’s bodily integrity, freedom, and self-determination.

In light of the scenario illustrated above, in conjunction with various enactments both at the contemporary national and international level on women rights, it then becomes bemusing and bewildering that our legislature still choose to live in the 13^th century when it comes to the issue of spousal rape.

Marital immunity in sexual assault cases, also known as marital/spousal rape dates back as far as the institution of marriage itself. While attempting a discourse on marital rape, it is apposite to proffer a definition of rape; rape is sexual intercourse with, or sexual penetration of, a person who is unconsenting, or who is unable to give consent, for various reasons.^[1]

This definition also receives statutory flavor in the Criminal Law of Lagos State^[2] which defines rape as an unlawful sexual intercourse by a man against a woman or girl without her consent. The prosecution does not just indict a person for the offence of rape and the Court sentence accordingly; the apex court while wearing her garment of finality and infallibility on a rape issue in the case of Posu v. State^[3], reasoned that there are essential ingredients that must be established by evidence, namely:

(I) that the accused had sexual intercourse with the prosecutrix; (II) that the act of sexual intercourse was done without her consent or that the consent was obtained by fraud, force, threat, intimidation, deceit or impersonation; (III)that the prosecutrix was not the wife of the accused; (IV) that the accused has the mens rea, to have sexual intercourse with the prosecutrix without her consent or that the accused acted recklessly not caring whether the prosecutrix consented or not; (V) that there was penetration.  Marital Rape – which this article focuses on, occurs when one spouse forces the other to have sex without consent^[4].

Marital rape was not considered an offence; at best, it was seen as a private issue and not an issue that concerns the public. However, this position has changed in saner climes and a spouse can be guilty of rape against their partner. The bone of contention in marital rape cases is usually whether a spouse must seek the consent of their partner before they can both consummate their marriage.

Various statistics have shown that women fall victim of marital rape more than men, and as such, it has been regarded as a form of domestic violence. Over the years, various types of marital rape has emerged, namely: Battering Rape – when physical and sexual violence occur together or one after the other, Force-only Rape – this is spurred by a desire to exert power and control over another person; usually by acting as if sex is an entitlement, and Sadistic Rape – this involves torture or perverse sexual acts^[5]. 

The concept of marital immunity in sexual assault cases is birthed by various ideas which include, but not limited to; the view of the female gender as being inferior to the male gender, perception of marriage as solely for procreation and several religious beliefs.

According to a famous jurist^[6], marriage is a contract and it also contains an implied term which is an irrevocable consent to sexual intercourse.  Another point worthy of note is the notion that women are properties of the father/husband and as such, rape is not an offence against the victim but a property crime against the father/husband whose wife/daughter was defiled^[7].

This debatable common law rule has been established in some notable case laws. In the United States, the case of Oregon v. Rideout^[8] was the first where a man was indicted for the offence of rape against his wife during the subsistence of their marriage, however, he was acquitted by the jury because a man cannot rape his wife.

Similarly, in R v. Miller^[9], despite that the wife had presented a divorce petition, it was held that the consent to sexual marriage was still valid, and a conviction for rape cannot be given. There was also a case that involved a 39-year-old woman, Jenny Teeson, who discovered a flash drive with videos of her husband drugging and penetrating her with objects.

In one of them, her four-year-old son was next to her. After turning in the videos to the police, he got charged with sexual assault against an incapacitated victim, but the charges were dropped after Minnesota’s marital rape exemption was used to defend him.^[10]

This old rule has now been enacted in our legislations in Nigeria – except for the Violence Against Persons Prohibition Act 2015 (The Act) which is applicable only in the Federal Capital Territory^[11]. The Criminal Code^[12] and Penal Code^[13] and criminal laws of the respective states^[14] of the Federation all recognize marriage as a statutory defense to a charge of rape.

By judicial exposition, the Supreme Court also acknowledged this stance in the case of Posu v. State^[15], when the court listed one of the elements of rape to be sexual intercourse by a man with a woman who is not his wife, as such, marriage is considered a defense to rape in Nigeria.

Marital rape can be more traumatic and abusive than stranger rape; suffering at the hands of a spouse, who is usually a source of trust and care, produces feelings of betrayal, disillusionment, and isolation in the woman^[16]. The spousal exemption to rape statutes is a grave injustice and adds to the trauma of marital rape.

A wife is not able to quickly secure protection on her own; she must wait for the divorce process to take its course to obtain relief, during which time she remains endangered. The rape law exemption, therefore, removes a wife’s right to abstain from sex and subjects her directly to the dangers of sexual violence^[17].

Due to this protection, some men perceive violent sex as a way of vengeance against the wives, regardless of the health status of the wife. It also won’t be out of context to reiterate that victims, like Ashley, go about with indelible scars in their hearts, because, without any iota of doubt, it’s an unforgettable experience and each time she remembers, she regrets being a woman. Ashley’s plight is just of the many instances that women get violated despite going through various sorts of emotional and mental issues and the height of the disrespect is that the society is not even taking any steps to correct the wrong.

The judiciary, often perceived as the last hope of the common man, has shown reluctance in addressing the matter at hand. Victims of marital rape, seeking the justice they rightfully deserve, encounter a hesitancy within the Courts to embrace the stance that marriage should not serve as a defense to rape.”

In our contemporary world, considering the change in the societal attitudes towards marriage, it is the opinion of this writer that a concept like marital immunity should now be extinct. Marriage is no longer viewed as a form of contract arrangement between families, rather, as a medium of companionship between a man and a woman.

The public is also not relenting in the sense that there are various groups and associations that have been formed solely for the fight for the right of a woman to determine what happens with her body. Sometime in 2022, the Supreme Court of India pronounced that Rape also encompass Marital Rape^[18]

In addition, courts in other jurisdictions have also tilted away from the old common law rule that a man cannot rape his wife. The case of R v R^[19] is a good example. The House of Lords upheld the defendant’s conviction of marital rape. The defendant’s union with his wife became strained cohabitation ceased between the two of them with the wife leaving a note of her intention to get the marriage dissolved. Not long after, the defendant broke into the house where his estranged wife was living and attempted a forceful sexual relation with her. He also assaulted her. He was arrested and charged for the offence of rape and assault occasioning actual bodily harm.

He pleaded not guilty to rape, but guilty to attempted rape and to the assault charge and he was sentenced accordingly. R appealed the conviction for attempted rape and his appeal was dismissed as the court held that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim. Still dissatisfied, R appealed again to the House of Lords. His appeal was also found lacking merit and he was convicted for rape.

Similarly, in R. v. Clarence^[20] Justice Field stated that “there may, I think, be cases in which a wife may lawfully refuse intercourse, and in which, if the husband imposed it by violence, he might be held guilty of a crime.” Id. (Field, J. dissenting). In the same vein, the case of R. v. Clarke^[21] also dealt directly with the marital rape issue. This case allowed for the indictment of the husband for the rape of his wife when they were living apart under a court-issued separation order.

These decisions can also be entrenched in our legal system if we have laws that are not in support of the contrary. There are numerous laws to that effect in saner climes but in Nigeria, The Act which applies only in the Federal Capital Territory is the only enactment that recognizes marital rape in Nigeria as the meaning of rape under the act does not include a marital immunity. It is the submission of this writer that various state houses of assembly can also domesticate same in their various states or if the National Assembly can make the Act applicable in all states in the federation.

Scholars have also put forward that women experience post-traumatic stress disorder (PTSD), depression, higher levels of anger, fear, and guilt, and begin to hate their bodies, therefore causing their self-esteem to drop. Despite the argument that women who are raped by their husbands suffer less, because they have already consented to having sexual relations, it is the opposite. Marital rape victims suffer more severe psychological consequences and for a longer period than those who were raped or assaulted by a stranger.^[22]

In light of the aforesaid, it is the duty of every individual to ensure that our society attains the stage where women are afforded the respect and dignity they are entitled to by virtue of their existence as humans – this also includes their right to determine what happens with their body.

This duty on us begins with conversations evolving around marital immunity, creating awareness on the implications of marital immunity and its effect on victims – you can begin this by sharing this article and also being informed about legal reforms as regards marital immunity.

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The information provided in this article is for general informational purposes only. It is not intended to constitute professional advice or services. Any reliance on the information in this article is at your own risk. The author and publisher make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability, or availability of the information contained herein.

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^[1] https://legaldictionary.net/rape/

^[2] Section 260(1)

^[3] (2011) 2 NWLR (Pt. 1234) 416

^[4] https://www.marriage.com/advice/domestic-violence-and-abuse/marital-rape-all-you-need-to-know/ last accessed 31^st January, 2024.

^[5] https://www.healthyplace.com/abuse/rape/marital-rape-spousal-rape last accessed 1st February, 2024.

^[6] Lord Hale in 1736 (the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up to her husband, consent which she cannot retract).

^[7] https://lawverse.com.ng/resources/news-research/marital-rape-in-nigeria-a-comparative-analysis-to-other-jurisdictions/ last accessed 1^st February, 2024.

^[8] 303 Or. App. 504

^[9] [1954] QB 282

^[10] (Smyth, 2019)

^[11] Section 27, Violence Against Persons Prohibition Act, 2015

^[12] Section 357, Criminal Code Act, 2004

^[13] Section 282(1)(d) & (2), Penal Code

^[14] Section 260(3), Criminal Law of Lagos State 2015

^[15] (2011) 2 NWLR (Pt. 1234) 416

^[16] D. FINKELHOR & K. YLLO, LICENSE TO RAPE: SEXUAL ABUSE OF WIVES 18 (1985)

^[17] Sonya A Adamo THE INJUSTICE OF THE MARITAL RAPE EXEMPTION: A SURVEY OF COMMON LAW COUNTRIES

^[18] https://edition.cnn.com/2022/09/29/asia/india-supreme-court-marital-rape-abortion-intl/index.html

^[19] (1992) 1 AC 599

^[20] 22 Q.B.D. at 57

^[21] [1949] 2 All E.R

^[22]https://scholarworks.sjsu.edu/cgi/viewcontent.cgi?article=1117&context=themis#:~:text=Despite%20the%20argument%20that%20women,or%20assaulted%20by%20a%20stranger.

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Identifying the Differences Between the Nigerian and American Electoral System

Introduction

Democracy as a concept has been adopted by several countries all over the world, it equally has pillars that makes it operational. Democracy helps to inform the decisions reached through electoral systems.

A democratic system is fully established when free and fair elections take place. For the exact purpose of ensuring that the pillars of democracy are rightly deployed, the different countries are at liberty to define how they want it to run. There is so much freedom for nations across the globe to determine what their democracy should represent with respect to their choice of electoral system.

A lack of express statement of rules guiding electoral systems could equally defeat the purpose of using it as a means to ensure orderliness in the system of government. Each country has a way in which their elections are done, yet, there are apparent similarities spanning across some countries. Notwithstanding the similitude of characteristics, there are different processes for each country.

This essay focuses on the choice of electoral systems, examining the Nigerian and American systems, with identification of some differences between the systems of both countries.

Electoral System Defined; Meaning and Importance

Before we delve into the crux of this essay, it is important to give clarity to the keyword; electoral system. What are electoral systems? Based off the current world view, electoral systems are treated as “one of the most influential of all political institutions. It is also of pivotal importance to a wider scope of issues relating to governance.”[1]

The choice of electoral system in any country has a huge impact on its political system at large, impact along the lines of conflict management or a broader democratic framework. This actively demonstrates that electoral systems have utmost significance on the continued political status of the concerned country.

This shows how crucial the influence of electoral system is in the formation of political parties. The choice of system also has an effect on the campaign methods used by candidates or the different party behaviours.[2]

The Presidential Electoral System in Perspective; What Does It Entail?

A major factor that informs the choice of electoral system is hugely dependent on the system of government being practised. Reason being that, the electoral processes must align with the core objectives being explored by the style of governance.

That is, a presidential system of election cannot be used in a country that is dictatorial or monarchical. In this essay, the presidential system is the highlight as that is what is in operation in both countries being used as a case study (Nigeria and United States of America).

Both countries practice a presidential system of government, regardless of this standpoint, the processes employed during their respective elections differ in delivery. A comparative analysis outlining the differences between both shall be carried out succinctly.

The entire process is marked with aspiring candidates for the various posts engaging the electorates via strategic campaigns. They communicate their plans, try to win people over  and lots more, all to the end of serving for a term of four years if they attain victory at the polls.[3] Both countries have experienced an evolution in their respective political realities and while some have been commendable, some others still need to be worked upon and upgraded.

The Two Sides of the Divide; How Do Both Countries Differ?

Truly, the United States of America and Nigeria both conduct elections every four years. However, they still differ in respect to certain processes. Some of which will be discussed below;

1. Central Electoral Commission

The electoral commission is saddled with the responsibility of ensuring the election being conducted is carried out freely and fairly.

In Nigeria, a central electoral commission exists as the Independent National Electoral Commission. The body conducts elections across all levels of government; from the federal to state to local government. Electoral officers under the Independent National Electoral Commission are charged with overseeing the process of electioneering.

The election is done on the same day across all 36 states and the commission has the responsibility of supervising the election’s integrity (supervisory delegation for campaign financing) while also conducting elections. The head of this commission is the Chairman appointed by the President.[4]

The United States of America on the other hand does not have a central electoral commission that controls all elections, instead, there is a federal electoral commission. The major duty of this commission is to ensure that integrity is demonstrated during the election process. Electoral officers are expected to act transparently and also administer the finance for campaigning federally.

It should be noted that; all of these duties do not equate that the commission conducts the presidential, state or local government elections. Instead, each state has the responsibility of conducting its election. The 50 states in America have a heavily decentralised commission, hence, the stratification to each state.[5]

2. Electoral College

An election process has a stage of election where electorates choose their choice candidates to represent their interests.

In America, the electoral college is used to elect the president. It doesn’t matter if the other candidate won the popular votes stage, the president is chosen based on the decision of the electoral college. To emerge as a winner from the electoral college, the candidate needs 270 votes of the 538 electors in the electoral college.

Electors are chosen by each state in accordance with the provisions of the federal constitution.[6] This status makes the American presidential election two phased where there is first a general voting process followed by the electors formally meeting to elect the president.

The Nigerian president is elected directly by the electorates (accredited voters). The winner emerges by majority number of valid votes and the geographical spread. After the entire process has been completed, the winner is announced by the Independent National Electoral Commission chairman.

3. Early Voting and Electronic Voting

Early voting runs weeks before the general election day while electronic voting allows electorates to cast their votes using a computer or other digital related devices.

The American system employs the use of electronic voting to determine the validity of votes cast to a very great extent. This helps to rule out the problem of multiplicity of votes or wrong documentation of figures. The idea of early voting in America also encourages mass voter participation. That is, the electorates get to vote earlier for the particular reason of circumstances such as congestion of polling stations or time difference from state to state.[7]

The Nigerian system does not explore any of these options. Voting is done on the exact date fixed for the election and by a manual process of casting ballot papers into boxes.

4. Political Party System

Party systems define the number of political parties that are recognised to promote aspirants for any election period. Some of the systems in existence are; one party system, two party system, multi party system, etc. For the purpose of this discourse, multi party system is in operation.

Nigeria currently operates a multi party system and there are ninety-one political parties listed by the Independent National Electoral Commission. All of these parties vote a candidate to be their flag bearer and the electorates in turn vote their choices from the wide range of aspirants provided to them.[8]

In America, there are two major political parties The Republican Party and The Democratic Party. These are the most powerful while other parties classified as third parties also exist (Reform, Libertarian, Green Parties, etc.) They can also promote candidates for an election, however, the trend in the American political space has made it seem as though only two parties exist and can contend for the presidential seat.[9] Majorly, candidates from the two major parties are put up to battle at the polls and after the two phased stage, a winner emerges.

The Borderline; What Can Be Deduced?

To sum up everything that has been stated so far, much credence should be given to how unique each country’s process is despite their similarities because they stand out with their differences.

In the affirmative, both operate the same system but employ different techniques. Regardless, there is a common end goal which is achieved despite the varying methods. Having identified some of these notable differences that exist between both countries, it would be wrong to measure the results using only one system.

The comparative metric has to flow from the individual countries because these differences are what makes each country distinguished while practising their chosen electoral system.

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[1] https://aceproject.org/ace-en/topics/es/onePage

[2] https://aceproject.org/ace-en/topics/es/onePage

[3] https://www.premiumtimesng.com/news/top-news/425257-how-u-s-nigeria-presidential-elections-differ.html

[4] https://www.inecnigeria.org/?page_id=2196

[5] https://www.premiumtimesng.com/news/top-news/425257-how-u-s-nigeria-presidential-elections-differ.html

[6] https://www.archives.gov/electoral-college/about

[7] https://www.usa.gov/early-voting

[8] https://www.inecnigeria.org/wp-content/uploads/2019/02/ANNEXURE-1.pdf

[9] https://www.loc.gov/classroom-materials/elections/presidential-election-process/political-parties/

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The Upshot of Justice – Juxtaposition of Alternative Dispute Resolution (ADR) and Litigation viz-a-viz Conflict Resolution

Introduction

A critical analysis of ADR and litigation as contrasting approaches to conflict resolution discloses that the choice between these methods has significant impacts on the attainment of justice in legal proceedings, revealing the need for a comprehensive understanding of their respective strengths and limitations.

ADR, Alternative Dispute Resolution, just as the name implies, is an alternative mode of dispute settlement that involves negotiation, mediation, arbitration, conciliation, etc.

Litigation, on the other hand, is the formal process of going to the court to settle conflict strictly on the provisions of law.

This article seeks to explore the upshot of justice by placing side-by-side the two legal means of resolving conflict, shedding light on how they influence the attainment of justice.

Justice is a philosophical concept that cannot be given a definite definition but is widely regarded as the quality of being right and fair. It is often the aim of conflict resolution.

In comparison, ADR and litigation are conflict settlement modes. They both aim at arriving at an amicable settlement of disputants’ grievances.

In contrast, ADR lays more emphasis on settling disputes outside the courtroom. ADR is used generally to describe the methods and procedures used in resolving disputes either as alternatives to the traditional dispute resolution mechanism of the court or in some cases supplementary to such mechanisms. It encourages collaboration, efficiency, and flexibility. It is cost-effective, consumes less time, and promotes win-win situations. It ensures that relationships among parties are retained. This is especially important because disputes often arise between or among people who have been in close relationships than among strangers.

ADR mechanisms leave the final determination of decisions in the hands of the parties despite the involvement of third-party (ies) who only acts as catalyst sometimes as it gives room for parties’ active participation in dispute resolution processes when compared to litigation. Restorative justice is very much possible in ADR, unlike litigation which prioritizes retributive justice.  ADR processes are more or less informal and do not strictly follow the rules of evidence in proving a case. It also promoted confidentiality.

ADR mechanisms include but are not limited to the following:

Negotiation; involves the primary disputing parties coming together either personally or through their legal representatives to iron out their differences. It depends on the voluntariness of the parties. The decision arrived at here is called an agreement or resolution. A third party is not involved. And the terms of the agreement are not binding.

Mediation; is often seen as advanced negotiation. It is the submission of a dispute to a neutral third party, who is known as a mediator for settlement, or decision. A mediator strives to reach a compromise, harmony, and a peaceful settlement between parties. He acts as a catalyst in getting the parties to reach agreement. The terms of settlement of mediation are not binding, and the contending parties are free to abide by the terms of the settlement, or go to court and enforce their legal right by suing.

Conciliation; ordinarily involves a neutral third party known as a conciliator who settles a dispute between an employer and his employer and his employees. In general, it is a process whereby the neutral third party facilitates communication between parties and helps them to reach an agreement or amicable settlement. A conciliation agreement is not binding on the parties. They can approach a court of competent jurisdiction for settlement.

Arbitration; is the submission of a dispute to a person(s) known as arbitrator(s) for decision. Usually, an arbitrator settles disputes using the principles of law, equity, and fairness.

Setbacks of Alternative Dispute Resolution

ADR is however not without its setbacks. ADR does not always promote justice, especially where a power imbalance exists between the disputing parties. Most of its decisions are often not binding. Parties can decide to back out before an agreement or resolution is reached.

Resolution to the adoption of ADR for dispute settlement is often by law in certain disputes but mostly on the voluntariness of the parties. It is this voluntariness of parties to decide whether or not to settle through ADR mechanisms that antagonists of the concept often capitalize on in rejecting ADR. Arguing that since it is voluntary its efficacy is dependent on the parties. But they forget that it is only an alternative which invariably means there is another mode that will be resorted to if the alternative fails.

Litigation

Litigation, on the other hand, is a judicial process of carrying out a lawsuit. Litigation could be civil and/or criminal. It is formal and usually done in the courtroom, subject to certain exceptions, with strict observation of the rules of evidence. It is adversarial.

Parties file their cases before the court, call witnesses, and tender evidence and the judges adjudicate on it and make a final decision.

In litigation, the decision of the court is final and binding on the parties but can be appealed either as of right or with the leave of the court.

Drawbacks of Litigation

Litigation, however, often creates enmity among parties and fractures relationships. In litigation, it is a zero-sum game where one party wins all while the other party loses all, and vice versa.

Participation of parties is limited to the legal representatives except where they are called as witnesses.

Litigation is time-consuming with a backlog of cases in courts. The cost of litigation is also not pocket-friendly. Professional fees, the cost of filing briefs, and appearance fees keep rising exorbitantly.  All these drawbacks can sometimes hinder access to justice.

Conclusion

In conclusion, opting for either litigation or ADR in conflict resolution is a pivotal decision in the pursuit of justice. It is however important to note that both modes have their advantages and disadvantages and their suitability varies depending on the context of the dispute. The adoption of any of the modes is dependent on the dispute.

It is expedient to recognize that justice does not only have to do with the outcome but also encompasses fairness, accessibility, and expediency of the process.

Knowing that effective conflict resolution leads to a more just society, it is therefore recommended that the two modes of dispute resolution be allowed to work  pari passu. They should coexist as complementary tools, each serving specific needs.

The upshot of justice is therefore in the judicious juxtaposition of ADR and litigation, having the demand of each case in mind and the broader pursuit of fairness and equity in the legal realm.

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