The COSON Summit on Digital Licensing

COSON (the Copyright Society of Nigeria) hosted a summit on digital licensing at the Ikeja Protea, on Monday the 12th of August 2013. The purpose of the summit was to discuss the challenges posed to the industry by digital formats for musical works and sound recordings. In attendance were lawyers, record label owners, recording artists, VAS companies (ringtones, caller tunes, etc.), as well as other stakeholders such as representatives of the Record Label Owners Association and the Audio Video CD Sellers Association of Nigeria (AVSAN).

 

The Chairman of COSON, Chief Tony Okoroji, led a panel of moderators that included Efe Omorogbe (Now Muzik), Audu Maikori (Chocolate City), Mark Redguard (Spinlet), Erelu Keji Okunowo (Industry Veteran), as well as a representative of the Nigerian Copyright Commission.

 

After Chief Okoroji took the gathering through the evolution of recording formats from vinyl to 8-track to cassette to compact disc to MP3 and other digital formats, the discussions very quickly split into 3 strains – skilled lawyers/judges are either small in number or not well-known, contracts are not respected, the industry is too fragmented and “disorganised” and offline downloads. Brief summaries and then my 50 kobo on these key issues.

 

LAWYERS AND THE JUDICIARY

One of the problems facing the industry is that many lawyers drafting and reviewing licensing agreements do not have the requisite specialist knowledge. As Managing Partner of G. O. Shodipo & Co, Mr Femi Fajolu, said, “…if you use the same lawyers for maritime as you use for general corporate work, you will sink in the water.” Or, as Audu Maikori said, “Dentists don’t perform eye surgeries.”

 

The danger in non-specialist lawyers preparing specialist agreements is that you are more likely to have bad agreements – the sort that precipitate litigation. Litigation is also an unattractive proposition because apart from its duration (and lack of assets to satisfy judgment debts, in the case of most artists), there is also the problem of not having a sufficient number of judges versed enough to properly settle IP disputes.

 

The summit proposed training sessions for artists and the judiciary. Industry practitioners were advised to contact the Intellectual Property Lawyers Association of Nigeria (IPLAN) for lawyers with specialist knowledge. It was also advised that IPLAN begin to lobby the National Judicial Commission and the judicial institute on appointing judges with IP expertise.

 

Nothing to add, for me.

 

OFFLINE DOWNLOADS

I was unfamiliar with this term before yesterday, though well aware of the activity it describes. Offline downloads occur when, for example, you hand your phone or tablet memory card to a laptop entrepreneur with a library of several thousand songs, some of which he copies onto your memory card for the paltriest of fees; something like 5 or 10 naira per track. Apparently, these guys have become such an issue that even Alaba marketers are complaining. I repeat, Alaba is complaining!!! AVSAN was especially passionate about this, though someone needs to tell them that their model is in terminal decline anyway.

 

This is an extremely tough nut to crack. Proposals considered for tackling it included licensing and persistent raids. However, as they’re literally everywhere, raiding them, no matter how frequently, would be akin to fighting vermin on a 5-acre farm with only a can of home insecticide – very minimal distortion. Licensing would also be tricky. How would pricing be enforced? What would compel people currently evading “capture” to voluntarily come forward for licensing? Should we even really be considering licensing – will the government also license operators of illegal crude refineries, for example?

 

Perhaps market-place executives need to start being held jointly liable for allowing copyright infringement go on within the markets? That way, the local market unions would be compelled to drive such people away from many public spaces. This would probably require a revision to existing laws, however, as people can only be liable for crimes as defined in existing laws.

 

OVER-FRAGMENTATION

“How do you know the real owner of the copyright in a musical work?” “How do you know you have not obtained your license to distribute digitally from the wrong person?”

 

These questions become more relevant as more and more disgruntled artists leave the labels where they became established, to set up their own companies. Inherent in that is the issue of attitudes within the industry to contracts and whether contracts have been properly terminated. However, there is the practical question, where the artist leaves properly, of ownership of new material.

 

Proposals put forward to solve this included mandatory copyright registration (which is not currently required under the law), the establishment of an authentic industry copyright registry and, most worryingly for me, mandatory registration/identification as an entertainment industry practitioner.

 

I think, in considering “sanitising” the industry, a few issues need to be borne in mind. First of all, registration of intellectual property, even where it is mandatory, is only prima facie evidence of ownership. What this means is that anyone who can demonstrate superior title can rebut the title granted by the government in respect of the intellectual property.

 

Secondly, the trend in Nigeria, once older folk start talking sanitisation or regulation is that financial and regulatory barriers to entry begin to crop up. In some cases, the promoters of regulation push for their body to become “chartered”, after which it usually becomes illegal for unchartered people to work within the trade. Caution must be taken that industry veterans do not stifle the creativity of younger participants with whatever remedial actions are agreed upon.

 

Overall, the summit was a useful meeting, the highlight of which, for me, was meeting Laolu Akins. A committee has now been formed to map out an industry strategy to tackle the digital challenge, and we look forward to its report in the coming weeks.

My Limericks (…so far)

A beloved central banker

Was alleged to be a wanker

He squeezed the send button

To another’s man mutton

Alhamdulillahi,Love u,he thanked her

_____________________________________

A hippo came from the delta

And spoke, all ran helter skelter.

A virtue, her name

Like Helen, a dame

Her logo, a big umblerra.

______________________________________

A soldier named AlMusty

15yrs on trial grew dusty

One week out jail, promoted, all hail

Their consciences are rusty.

The Nigerian Civil Service: Reforming the Unreformable

I am usually scathing in my remarks about the Nigerian civil service. In addition to the service being overly bloated, most of its staff have absolutely no manners and are unapologetically corrupt. Reforming the civil service will be a tall order, but I would like to think about reform in this piece.

I think the civil service is designed to have too much interaction with the public and this is a huge contributor to the gargantuan corruption in the system. Anyone who wants a regulatory approval needs to go to three separate departments, in each of which five people fastidiously check documentary compliance and the absence of any whom can delay one’s application indefinitely. Then, periodically, the head honcho (in what is usually no more than a “golden parachute” arrangement) decides to revamp the entire system, requiring everyone who ever obtained a permit in the history of the government ministry to “revalidate” his or her permit for a “token fee” plus stress, frustration and hardship.

Each government office one visits has a big notice discouraging Nigerians from patronising touts. However, the system is yet to be designed that is easier than using touts. Who are the touts anyway, if not staff of the ministry or their agents?

Then, there’s supposed to be a customer service initiative called SERVICOM. There are SERVICOM posters at all government departments, telling you that you have the right to be served courteously. Those posters are just as effective as the ones at police stations that tell you that bail is free.

Let’s accept that the Nigerian Labour Congress will never permit the downsizing required to make the civil service a leaner, meaner, more efficient machine. No problem. Here are a few suggestions for reform (if anyone is listening, or cares):

  1. Reduce the number of steps required in getting a permit or approval – typically, an applicant should be able to (a) pay the administrative fee; (b) submit all his documents at one desk; and (c) collect the permit or approval, without fail, on a pre-announced date. As the Palm Pilot in Special Agent Oso sings, “Three special steps, that’s all you need; three special steps and you’ll succeed.
  2. Automate processes – many government departments now accept online payments but they’re not cutting turnaround times. Paying the official fee for a permit is usually the easiest part of the process, to be frank. It’s the paper-checking and paper-pushing components of the process that come with all sorts of kinks and extra tollgates. If there was a system to check when an application is submitted and whose responsibility it is to approve within a given timeframe, the process might speed up a bit. But this is our civil service we’re talking about – this would require a permanent secretary or director that isn’t a product of the cankerous system to enforce.
  3. Ban Religiosity – the greatest problem religion in the workplace – the greatest paradox of the filthily corrupt civil service – has brought, is that no one is afraid of earthly sanctions anymore. We leave everything to God, because God is control and everyone’s reward, whether good or bad, is in the metaphysical. We need physical, immediate consequences for dithering and slothfulness – it will be too late to change the civil service when we reach the afterlife.
  4. Outsource to the private sector – even with as many actual foot soldiers as there are in the public service, it is safe to assume that efficiently performing some tasks will always be beyond them. The best contemporary example of this is the Federal Road Safety Corps’ inability to arrange timely data capture for the incoming revised drivers’ licences. Nigerians are generally happy to pay a little extra when they see the value for what they’ve paid. Own the software, control access to it, licence it to third party private sector companies, and simply send the licences by courier to the owners once pictures and fingerprints have been taken. The integrity in the process is maintained and there’s “something for the boys” on the back end.

This is 2013, only 7 years before we pretend to be disappointed when we don’t enter the elite league of the 20 most developed economies in the world. We cannot be a top 20 economy with a bottom 20 civil service – who do we think is supposed to drive and institutionalise the quantum leaps we need to make on this journey to the big league?

I truly apologise for the cynicism in this piece but we all know our country. This piece won’t even be a footnote in anyone’s consciousness in a week’s time.

THE GROWING NEED FOR A DATA PROTECTION LAW

This article was first published in the Trenchard Partners Newsletter, in January 2010.

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The Nigerian Communications Commission (NCC) at the end of 2009 issued a directive mandating mobile operators to register SIM cards prior to activation. The telecoms operators have cited many reasons not to proceed with the scheme, including the high cost of any such exercise and the likely aversion of subscribers to SIM registration. However, the NCC has stated that the measure will be useful in the prevention and the prosecution of crime, and the compilation of a national database. This article articulates other reasons which suggest that further thought needed to have been given to the matter before a directive was issued.

The question that immediately came to my mind when I heard of the directive was that of data protection and what measures, if any had been taken to protect subscribers’ privacy. Anyone who has ever filled a form in the UK requiring the entry of personal information will confirm that such forms, regardless of the nature of the business of the data collector, contain a statement of the data protection policy of the company and informs the person providing the information of the limits within which the personal data can be used.

Unlike the UK, Nigeria does not have a Data Protection and Privacy Act. However, embedded in the Schedule to the Consumer Code of Practice Regulations 2007, are provisions relating to data protection. The relevant sections of the NCC regulations (ss. 34-38 of the Schedule) adopt the basic principles of data protection, as follows: “…the collection and maintenance of information on individual Consumers shall be – (a) fairly and lawfully collected and processed; (b) processed for limited and identified purposes; (c) relevant and not excessive; (d) accurate; (e) not kept longer than necessary; (f) processed in accordance with the Consumer’s other rights; (g) protected against improper or accidental disclosure; and (h) not transferred to any party except as permitted by any terms and conditions agreed with the Consumer, as permitted by any permission or approval of the Commission, or as otherwise permitted or required by other applicable laws or regulations.”

Currently, SIM registration requires the subscriber’s photograph and fingerprints to be taken in addition to the name and address of said subscriber. If data collected is meant to be relevant and not excessive, one must surely question the relevance of biometric information (particularly, fingerprints) to a subscriber directory. Given the garb of crime prevention with which the exercise has been cloaked, is it the intention of the NCC for such details to be handed over to the law enforcement agencies? I suspect that the response of the average reader would be that if the writer is not a law-breaker, then he should have nothing to fear. However, section 37 of the 1999 Constitution of Nigeria guarantees the right to privacy of Nigerian citizens. Furthermore, there are no obligations on any non-telecoms operator (e.g. the Nigerian Police or the State Security Service) to deal with personal data according to the same standards as the telecoms companies. Again, as the NCC initially proposed a uniform gatherer of this information, who is the custodian of the personal information taken from subscribers? The NCC or the telecoms companies?

Sub-paragraph (h) of the regulations should also give subscribers cause for concern. It provides to the effect that a subscriber’s personal data may only be transferred to other parties in accordance with the terms and conditions agreed with the customer or otherwise permitted by law. The registration form that subscribers are required to complete for the SIM registration exercise (I have been to two of such centres) do not contain any terms and conditions upon which personal data is being processed. Neither of the terms and conditions displayed on the websites of either of these two companies have any terms pertinent to the collection and maintenance of subscriber data. This is notwithstanding the fact that section 37(1) of the Commission’s guidelines requires each operator’s policy on the protection of consumer information to be made available in an accessible and easy to read manner. The question is also relevant whether authorities, who are permitted by their enabling laws to enter into premises and seize documents, can lawfully seize the devices on which subscriber records are stored. Normally, these agencies would require warrants to search and seize. Under what circumstances would they be able to obtain biometric data of suspects? Only when the suspects’ telephone records are relevant? Or at any time at all?

One must also examine other companies and organisations that collect and process data. This sub-set would include banks, stockbrokers, utilities companies (e.g. PHCN, Water Boards), the Immigrations Service, the Federal Road Safety Corps and even, one might argue, embassies. Everyone of these companies now has an ‘e-solution’ to their companies’ products and services. The question is not how likely it is for these entities to share our personal information with third parties but rather, whether such a possibility exists, and what the ramifications would be if they did. Apart from sharing our personal data, if it is proved that personal data has been misplaced or dealt with negligently by a custodian to whom we as consumers have provided this information, what should be the consequences be? There have been adverts in newspapers by some cable companies advertising direct debit as a means of payment. Direct debit would require the subscriber to entrust his bank details to the broadcaster. Should there not be a minimum legal standard for the handling of such information?

Recently, social networking website Facebook came under fire from many of its users because its privacy settings stopped working as they were designed to. Ordinarily, particulars of and updates to a user’s profile should only be visible to other users designated as ‘friends’. However, due to a glitch, these restrictions temporarily failed to work, removing the restrictions to users’ personal information and communications. The incident left many users weighing the usefulness of the network against the security of their privacy and many users considered this such a grievous breach that they stopped using the website altogether. The rationale for this was quite clear – a website can no longer be trusted if communications and information that were meant and believed to be private and confidential turned out to be the opposite. Likewise, there was a huge public outcry when British civil servants misplaced flash drives where details of millions of British residents were stored, as well as when the British Government lost a truckload of brand new passport booklets.  We live in an era when access to personal data provides ample opportunity for identity theft and if this concerns residents in countries where law enforcement has the technological wherewithal to combat electronic theft, it should most certainly concern residents of such a country as ours.

It is my suggestion that the SIM registration directive is premature, because the telecoms operators do not exist in a vacuum. They interact and transact business with various companies and it is not inconceivable that some of these companies may come into contact with the data gathered by the telecoms companies. As long as there is no statutory obligation on these third parties to treat subscriber’s personal data with the same standard required of telecoms companies, the system is inherently compromised. The National Assembly needs to enact a law regulating the protection of data gathered by service providers. Failure to do this, instead of helping to stop crime, could lead to the next generation of cybercrime and identity theft. For the system to work properly, all gathering and potential sharing of personal data must be regulated.

Our government and its agencies must also adopt a broader approach as they seek to modernise and keep up with current trends. Privatisation and deregulation are laudable, but everywhere else in the world, they are accompanied by competition/antitrust laws. The NCC does have competition regulations, but competition/antitrust issues are certainly not the exclusive preserve of telecoms companies. Likewise, telecoms companies are not the only bodies required to register customers, and the attendant privacy and data protection issues must be addressed.

 

Artisans and Our Skills Gap

I frequently refer to artisans as the third leg of Nigeria’s axis of evil, after politicians and civil servants. I believe that if, or whenever, politics and the civil service are eventually fixed, artisans will still be the one thing holding us back.

In a sense, I exaggerate but we all use tailors, plumbers, electricians, mechanics, etc and have the scars to show their skills deficiencies. Plumbing simply never ends in most houses. In spite of the “German foundation” damp rises in in almost everyone’s walls in Lagos. Your electrician will fry your switchboard and vanish. Then, the tailors and carpenters – do I really need to justify their inclusion in this horror show?

And in this instance, we know it’s just a Nigeria thing. Growing up, the best basket-weavers were Ghanaians (but we drove them out, didn’t we?) and the best-tailors were francophone (les Togolaises et les Senegalaises). Right now, in masonry, that brick/stone effect that people do on their walls, the best people to do it are the Beninois and the Togolese. Why is it only in football that our non-skilled labour trumps that of our neighbours along the West-African coast? What is that they do differently? I actually do not have an answer to that question but I know, from short spells in Abidjan and Porto Novo that the lifestyle is very different from ours. Attitudes also seem to be different, with the Porto Novo experience particularly underscoring this.

For a period of about three months, during the ASUU-enforced two-year break between secondary school and university (circa 1995), my uncle and aunty dumped my cousin and I at the Songhai Centre in Porto Novo. The Songhai Centre is an agricultural skills acquisition “school” where students from all over the Benin Republic come to train before moving on to large-scale, commercial farms. The food was not to my liking and we (my cousin and I) spent more time watering the crops than anything else (arosser!) but I recall one of the students saying how he needed to complete 24 months at Songhai to become employable at a larger farm. At the time I thought, 24 months to learn how to plant, weed and water crops? Who has time for that? These days, especially after an artisan has come to do remedial work, for the 5th time, on work he did shoddily, I wonder whether he had any structured training at all.

More recently, I have met two Togolese masons who are both frequently contracted to come and work in Nigeria. One of them came to our meeting in an LR3 (so he’s done okay for himself). He also spoke about attending a training school for a few years and then working as an apprentice under a master-builder. I doubt very many of our masons are crossing the borders in the other other direction.

Perhaps it’s the easy-going life that they live that reduces the pressure we have in Nigeria to achieve more over less time. Maybe it’s therefore easier for them to contented. Perhaps their societies are more accepting of people who don’t have university degrees. We need to find out whatever it is that makes them stay long enough in skills schools to properly learn trades and just copy.

The reality is that we don’t have enough corporate jobs to employ everyone who has undergone higher education in Nigeria. There is also a stark hierarchy, where employers are concerned, of graduates from tertiary institutions: Federal Universities (there’s even an elite sub-class in there) > State Universities > Polytechnics > Colleges of Education.

Finally, employers generally pay higher salaries to people with foreign degrees, a premium for the better education they’ve ostensibly received. Clients generally pay more for lawyers renowned to be more highly skilled in an area of law than others.

Would we as consumers be willing to pay thrice as much for properly trained and qualified technicians and artisans?

What’s A State of Emergency Anyway?

On the 15th of May 2013, President Goodluck Jonathan declared a State of Emergency in 3 states in the northern region of Nigeria. Apart from the debate on the propriety or otherwise of the declaration (or “proclamation” as the constitution calls it), a lot of debate has also been had on whether or not a state of emergency can be declared with the Governors of the affected states remaining in office. With all the “sacred” opinions flying about, perhaps it is time to take an academic look at what a State of Emergency is.

What Is A State of Emergency?

A state of emergency is a proclamation by the government of a country suspending certain judicial, legislative or executive functions, or suspending certain rights guaranteed by the constitution, during times of civil unrest or natural disasters. The concept of the need for the state to have emergency powers can be traced back to 5th Century Rome, when the constitution at the time empowered the Senate to appoint a dictator for a period of 6 months, to quickly take decisions and implement strategies for victory at war. Basically, declaring a state of emergency enables the government to override usual administrative controls or circumvent usual checks and balances in order to provide the speedy, effective response a national crisis requires.

When Can A State of Emergency Be Declared?

Generally, an emergency can be declared when circumstances arise that cannot be dealt with quickly or efficiently enough under the rule of law, or under normal constitutional circumstances. Specifically, under the Nigerian constitution, the President has the power to declare a state of emergency when:

a. The Federation is at war;

b. The Federation is in imminent danger of invasion or involvement in a state of war;

c. There is actual breakdown of public order and public safety in the Federation or any part thereof, to such extent as to require extraordinary measures to restore peace and security;

d. There is a clear and present danger of actual breakdown of public order and public safety in the Federation or any part thereof requiring extraordinary measures to avert such danger;

e. There is an occurrence or imminent danger, or the occurrence of any disaster or natural calamity affecting the community or a section of the community in the Federation;

f. There is clearly a public danger which clearly constitutes a threat to the existence of the Federation; or

g. The President receives a request from a State Governor to do so.

What is the Order of Events to be Followed in Declaring a State of Emergency?

1. The President issues a proclamation of a state of emergency and publishes it in the Official Gazette.

2. Immediately after the proclamation is published in the Official Gazette, the President transmits copies to the Senate President and the Speaker of the House of Representatives.

3. The Senate President and the Speaker immediately arrange for meetings of their respective houses of legislature to consider the situation and decide whether or not to pass a resolution approving the proclamation of the state of emergency.

4. The proclamation of the state of emergency ceases to have effect –

a. If it is revoked by the President;

b. If the National Assembly fails to ratify it in each House (resolution supported by two-thirds majority) within 2 days (when the Assembly is in session) or within 10 days (when the Assembly is on recess) after the publication of the proclamation.

c. After a period of 6 months has elapsed since the proclamation came into force (the National Assembly can extend the period of the state of emergency for further periods of 6 months, as it deems fit).

d. At any time after ratification by the National Assembly, when each House of the National Assembly revokes the proclamation.

Must Governors be Suspended During States of Emergency?

While historically, Governors have always been suspended during periods of emergency, there is nothing in the Nigerian constitution that makes their suspension compulsory. The following question then is, how is military intervention in a State compatible with Governors remaining in office for the duration of the state of emergency? My answer to this (but this is not backed by any constitutional provision) is that the two are compatible in the instant situation for the following reasons:

1. The President has deployed soldiers to restore security to the various States. Security is not the only function of a State Governor. In fact, it is arguable (and perhaps even likely) that the Governor performs more administrative than security functions. Unless the affected States have completely ground to a halt, I do not see a reason why the Governor cannot continue to perform all his other functions outside security.

2. The militancy/insurgency is not taking place in every single square mile or local government area of the affected States. Many parts of the affected States continue to enjoy relative peace and normalcy. Should they be neglected because the army is fighting insurgents in pockets of the State? Should the delivery of governance to relatively unaffected areas not continue?

3. Consider that no American Governor has been suspended during periods of emergency. Not even during the manhunt for the bombers of the Boston Marathon.

4. Given that a Governor could request the President to declare a state of emergency in his State, it is unlikely (in this event) that the framers of the constitution conceived that a Governor would believe his suspension from office would be one of the outcomes of him making such a request.

Final Constitutional Question

There is the further question of whether it is even constitutional at all for Governors to be suspended during periods of emergency. Senior lawyers with much more constitutional knowledge and experience than me appear to believe that it is indeed unconstitutional; that a Governor may only be removed from office by impeachment, resignation, or on grounds of infirmity. I have a contradictory hypothesis (emphasis on hypothesis).

I would suggest, that while it is true that a Governor may only be PERMANENTLY removed by the previously-listed means, suspension from office while the period of emergency lasts is valid if ratified by the National Assembly. If a state of emergency is in effect a suspension of the constitutional order because of emergency circumstances, and the only restraint placed on the President in the constitution is that the details of the emergency rule must be ratified by the National Assembly, I think a case can be made for the validity of the temporary removal of an affected Governor from office. It remains a theory however – as is that of my renowned, most esteemed, learned seniors – until the courts are given the opportunity to rule on the question one way or the other.

The Google Lawsuit and Online Defamation in Nigeria

Image representing Google as depicted in Crunc...

Image via CrunchBase

It recently made the news, in Nigeria, that Google has been sued, along with a blogger, for an allegedly libellous post on a blog. If the suit progresses to judgement (it could either be eventually abandoned or settled out of court), it would present a wonderful opportunity for the judiciary to consider if or how the traditional principles of defamation apply to electronic publications. Interesting, as electronic (computer-generated) evidence became admissible in court only in 2011.

WHAT IS DEFAMATION?

Libel (written), together with Slander (it’s oral cousin) together make up the tort referred to as ‘defamation’. People sue for libel or slander when they believe that a statement that has been publicly made about them has injured their reputation. Suits for defamation are the counterfoil to the constitutional guarantee of free speech. Thus, while you can say whatever you like about anyone, that person is entitled to seek compensation against you if you damage his good name and reputation, or lower him in the estimation of right-thinking members of society.

WHAT ARE THE GENERAL PRINCIPLES OF DEFAMATION?

Several cases have been decided on this topic. The following is a collage of how the courts have answered this:

In any action for defamation, it is necessary for the plaintiff to prove the following:

  • Publication of the statement to at least one other person than the plaintiff;
  • That the statement referred to, or by implication referred to the plaintiff; and
  • That the statement was defamatory (injurious to reputation and good name).

“Publication” is the making known of the defamatory matter to some person other than the person of whom it was written (e.g. blogging).

A statement must be false and without lawful justification to be defamatory. Justification means that all the words published and any imputations thereto are true.

In addition to truth/justification, “fair comment” is also a defence to defamation. To successfully invoke “fair comment”, the defendant must prove:

  • The published statement must be based on facts truly stated;
  • It must the honest expression of the writer’s real opinion; and
  • It must not contain insinuations of corrupt or dishonourable motives on the person whose conduct or work is criticised, except the facts warrant such imputations.

Damages for libel are by way of monetary compensation. The court considers the following factors in awarding damages:

  • The conduct of the defendant;
  • The plaintiff’s position and standing in society;
  • The nature of the libel;
  • The mode and extent of the publication; and
  • The absence or refusal of a retraction or apology.

 

E-LIBEL

This would be our first strictly e-libel case, if it went to court, so we have no precedents in Nigerian law. When this happens, it is the practice to look to leading commonwealth jurisdictions such as Britain, Australia and America for guidance.

The UK actually has a Defamation Act, which was passed in 1996 (an even more recent one was just passed by the House of Lords and awaits passage at the House of Commons), which states in its very first section:

“1(1) In defamation proceedings a person has a defence if he shows that –

(a)    he was not the author, editor or publisher of the statement complained of;

(b)   he took reasonable care in relation to its publication; and

(c)    he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.”

“1(3) A person shall not be considered the author, editor or publisher of a statement if he is only involved  – (e) as the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control.”

It would seem from Section 1(3)(e), just quoted, that this would mean that “hosts” such as Google would have no liability for defamatory material published by users of its services. Indeed, this appears to be the position in the USA. However, in this English decision, the courts decided that the host was jointly liable, though ultimately, not simply for hosting, but for refusing to take the post down after the Plaintiff notified them of the offensive material. The position of liability after being asked to take down offensive posts was recently reinforced in Tamiz vs Google. See this blog post for a more extensive explanation.

 

ARE NIGERIAN COURTS LIKELY TO HOLD GOOGLE LIABLE?

The position of the law (abroad, at least) appears to be that a web host will be liable if it refuses to block access to or take down libellous material after it has been notified and required to do so. If this principle were to be followed, then a plaintiff would need to show that he notified Google (or whoever the host is) and that Google allowed the material to continue to be viewed in spite of the notification.

THE LOGIC OF AMNESTY

First, they had no spokesperson and their demands were unknown. Then, they were ghosts and the government was not going to put itself through the indignity of negotiating through psychic mediums, spiritualists and marabouts. Now, it seems somebody’s called the Ghostbusters, told them that their services will never be needed and an amnesty committee has been constituted to make recommendations concerning Boko Haram.

 

This follows hot on the heels of what many might consider a pre-emptive strike, with the Federal Government said to have awarded yet another dodgy security contract, this time in the South-Western region of the country, to yet another leader of a local militia. The contract is said to be worth N2.4bn a month and it is unclear what the duration is. Southern Nigeria is now crawling with guerrilla warlords who have been rewarded for their mutinous behaviour with “juicy” government work. Let’s ignore the fact that we have several security agencies and reasonably-sized armed forces. Let me not say that government is outsourcing the performance of what the constitution describes as its “primary purpose”, when my ogamost oga at the top is clearly saying something else.

My “Ogamost” Oga At The Top

THISDAY reports that the president “bowed to pressure” to shift ground on amnesty for Boko Haram. This pressure came from many elder statesmen and even a branch of the Nigerian Bar Association. The logic behind the pressure is that amnesty worked in the Niger Delta (although this post empirically questions the correlation between the amnesty programme and increased output in the Niger Delta), therefore amnesty will quell every uprising Nigeria will ever have. Alright, so I have laced it with a healthy dose of cynicism but this clearly is untenable not only from a policy position but also from that of logic.

Granted, there is the solitary similarity between Boko Haram and the Movement for the Emancipation of The Niger Delta (MEND) – they are both militant groups with tribal/sectional origins. But that must be where the similarity ends. MEND was ostensibly fighting for the diversion of a greater portion of the region’s mineral wealth to its own people and remediation of all the damage to their farming land and fishing waters. When the government commenced its amnesty programme there, it first of all admitted that it had wronged the people of the Niger Delta. There was some logic to the government saying, in that instance, “your fight is an honourable one; we have wronged you; lay down your arms, come back into decent society and not only will we not punish your insurgency, we will restore all that the cankerworm has eaten.” Or words to that effect, anyway.

On the other hand is Boko Haram, whose cause no one has been able to successfully articulate AND rationalise. “Rationalise”, for me, is the key part of that sentence. Were they formed for an aim that rational society should accommodate? Can any of their demands be met rationally? Is there anything rational in all that they have said or done since they stepped into the international spotlight? If the answer to all these is a resounding ‘NO’, what then is the rationale for granting them amnesty? What has led the government to believe it can reason with them? Above all, what part of their behaviour or rhetoric suggests that amnesty would even be a useful tool? Lest we forget, the predominant MO for MEND was to kidnap oil workers and sabotage oil infrastructure. Boko Haram are suicide bombers.

Now, I fully understand that Borno and Kano have been ravaged by the sect and the people just want peace. But is peace at any price really peace? Boko Haram wants less of an interaction with western civilisation and the implementation of Sharia law nationwide. How do you begin such negotiations? Ok, we’ll ban western education in Borno and Kano States but you have to leave the rest of the country alone? You get to have Sharia in a maximum of 10 northern states and that’s it? And if they renege and pick up their arms again tomorrow, do we show more flexibility on where ‘Boko’ will be ‘Haram’ and how far Sharia will be allowed to spread? Only recently, a splinter group, Ansaru, has been reported to be even more deadly than the original Boko Haram. Should they be offered amnesty too? Is amnesty for Boko Haram justice?

 

 

Location of the four cities in north eastern N...

Location of the four cities in north eastern Nigeria where the Boko Haram conflict took place. (Photo credit: Wikipedia)

 

The message from the government is also quite clear. Arm yourselves, disrupt activity within the nation with as much violence as you can muster. We will reward you from the abundance of our treasury. You will be rich beyond your wildest dreams. Unlike your peers who are busy acquiring an education or struggling to build a career. They would be dead to us, if not for the taxes we need them to pay.

Abati, Our Sophisticated Ignorance & A Dollop of History

Reuben Abati recently outperformed the 2-man (or 1-man/1-woman) interview panel at Channels TV for the second consecutive time. Either his mind was too nimble for theirs or, in the face of attacks of “unprofessionalism” over the oga at the top saga, they chose to be extremely professional with him. In either event, he got away with justifying the presidential pardon of a convicted looter of public funds, someone who, rather conveniently or coincidentally or both, the president has referred to as his political benefactor. Dr. Abati also accused us, who are disgusted by the pardon, of “sophisticated ignorance”. Thankfully, Simon Kolawole has since pointed out Abati’s “sophisticated amnesia” but that isn’t the focus of this piece. I am curious about this business of presidential pardons and eager to cure my ignorance, sophisticated or otherwise.

Anyone familiar with my writing will know by now that I have a penchant for querying the propriety of administrative acts from the perspective of the jurisprudence behind the law that empowered the acts (Abati even ventured into the jurisprudence of punishment in his interview, a topic I previously visited here and to which we shall return presently). So, pardons, where did they come from?

The origins of the presidential pardon lie in the Prerogative of Mercy of the English monarch, being recorded in law as early as 668 AD. Initially, the King’s power to pardon was unfettered but by the reign of King Charles II, parliament excluded impeachments from the previously unlimited scope of offences that could be pardoned by the Crown. At a time the King, upon the declaration of war, as a ploy to swell the number of his troops, would pardon everyone who had committed a homicide or a felony, on the condition that they served a year for free in the army. However, over the centuries, it was obvious that the power was open to abuse, particular in relation to the wealthy or connected members of society, and parliament tried many times to curtail it. They only succeeded in the time of Charles the II because he pardoned the Treasurer/Chief Minister (today’s ‘Chancellor/Prime Minister’?), the Earl of Danby, who was about to be impeached. Parliament declared the pardon illegal but Danby himself resigned shortly afterwards, to avert a constitutional crisis.  Forgive the history lesson; on to America, whose constitution we adapted.

In this commentary on the constitutional history of the prerogative of mercy, the writers note that when the power to pardon first evolved, the punishments for many crimes was death, making the power not only useful, but necessary. By the time the American constitution was being framed, things were not so dire. However, it was still thought that the power to pardon was necessary for those exceptional circumstances in which the legal system failed to yield a morally or politically acceptable result. This paper here says the following about the positive use of the power to pardon, by American presidents:

“Pardon proved its practicality right away, in helping the president deal with a series of rebellions and invasions in the early years of the Republic: “The pardon could bring rebels back into the fold, or it could repopulate the army by restoring deserters to service.”  President Lincoln issued pardons throughout the Civil War to deal with desertion and draft evasion on the Union side, and to undercut the rebellion in the Border States. Presidents Johnson and Grant used the power to clean up afterwards, as did Presidents Theodore Roosevelt, Coolidge, Harding and Truman in connection with later wars.  More recently, Presidents Ford and Carter both issued amnesties to draft law violators and military deserters from the Vietnam era. Like the Nixon pardon, these amnesties represent classic uses of the power to reconcile national differences.

So, we see a picture emerging. Show grace where the outcome at the courts is clearly unconscionable, readmit a class of outlaws or outcasts in furtherance of national healing. Furthermore, since 1898, when President McKinley signed the Clemency Rules, applications for clemency (or pardon) have been made to the Justice Department’s pardon attorney and, with only very few exceptions, presidential pardons have been granted on the recommendation of pardon attorney (said recommendations being signed by the attorney-general).

Alright, enough of the history. Let us compare the sections of law that grant the president the power to pardon. Section 175(1)(a) of the Nigerian constitution says:

(1)    “The President may –

  1. Grant any person concerned with or convicted of any offence created by an Act of the National Assembly a pardon, either free or subject to lawful conditions;”

Article II Section 2 of the US constitution says, with relevance to the prerogative of mercy: “[The President] shall have power to grant Reprieves and Pardons for offenses against the United States, except in the case of impeachment.”

Thus, while in the United States the president cannot pardon anyone who has been impeached by Congress, in Nigeria, contrary to the position in our judicial forbears, the president’s power to pardon is without limit. Impeachments are fairly rare, however, so perhaps not much should be read into this.

In his paymasters’ defence, Abati rightly points out that pardons are always controversial (see here for a list of controversial pardons) and cites President Clinton’s controversial last-day-in-office pardons in support of his argument. However, unlike Abati’s principal, who has chosen to hide behind media aides, President Clinton published an extensive explanation of those considered the most controversial of the pardons. Clinton points out that the recipients had to agree to be fined in a similar fashion to others similarly accused, in the event that prosecutors found similar circumstances to apply.

Abati says that the convicted looter pleaded guilty, served time, forfeited property and was therefore worthy of being pardoned. He omitted to say that the looter jumped bail in London in 2005 and is still wanted there to respond to money-laundering charges. Or that he was impeached from office, which would be red flag in the UK and the US. We may be sophisticatedly ignorant but we are very clearly not stupid.

The crux of it all is this: given the jurisprudence of the presidential power to pardon, the severity of the offences for which the convicted looter was punished, our country’s much vaunted war on corruption and language with which Abati himself described the looter in 2005, can a charge of sophisticated ignorance be substantiated? One can try, as Abati did, but only very disingenuously. Perhaps sophisticatedly so, even.