Courts can order compensations to victims of violence in the absence of enabling legislation, says Ogwemoh
The recent killing of scores of Enugu locals by suspected Fulani herdsmen in Ukpabi Nimbo, and activities of insurgents in Northeast Nigeria have given rise to an agitation for compensation law to cushion the effect of such attacks on victims. In this interview with BERTRAM NWANNEKANMA, a Lagos-based commercial lawyer and Senior Advocate of Nigeria (SAN), Sylva Ogwemoh, believes that the courts can rise up to the occasion in the absence of compensation laws yet to be enacted by the National Assembly. Excerpts:
The insurgency in the Northeastern part of the country, resulting to loss of lives and property, has led to calls for compensation of victims of insurgency or disaster. Do you agree with this call?
Absolutely! I agree with those calling for compensation of victims of insurgency in our country. Under Chapter 11 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) dealing with Fundamental Objectives and Directive Principles of State Policy, specifically section 14(2)(b) thereof, the primary purpose of government is the security and welfare of the people. It is therefore important that the government takes proper and adequate steps towards ensuring the security and welfare of its citizens at all times otherwise that government would be seen to have failed in its primary duty to its citizens. So to answer your question directly, I say yes, the agitation is necessary from the point of view that losses suffered by these victims are a direct consequence of failure of government to provide adequate security of life and property.
Can Government give compensation in the absence of compensation law in the country?
I think Government can rightly compensate its citizens in the face of these inhuman activities of the insurgents in spite of the fact that there are no compensation laws for victims of insurgency. As earlier pointed out if the primary purpose of government is the security and welfare of its people, I think it is within the powers of government to either provide compensation in form of money or rebuild the various villages that have been destroyed in the Northeast by the activities of insurgents.
In your view will compensation laws compel security agencies to perform their constitutional roles of protecting the citizenry better?
A dis-functional and disorganized security system would be unable to perform even in the face of adequate Compensation Laws. What is required for our security system to perform is adequate manpower, constant training and the use of modern technology in fighting crime. Our security system is not proactive but reactive. Intelligence gathering is very crucial in fighting crime, training and re-training is key to the performance of their constitutional roles and not the existence or adequacy of compensation laws.
Having said that, however, promulgation of compensation law will probably drive home the point that Government needs to take their role of providing security for its citizenry more seriously given that there are consequences which would lead to severe compensatory claims by victims.
Going by frequent attacks by herdsmen on villages, do you support calls for establishment of grazing land for cattle?
Some may argue that the establishment of grazing land will confine Fulani herdsmen to a particular area of land and thereby reduce incessant clashes between the Fulani herdsmen and other farmers. Still some will argue that since their communities are not into the business of cattle rearing, establishing a grazing area within their community is unacceptable. In my opinion, I think ranching is the way to go. If you are involved in the business of cattle rearing, you should be able to acquire a land within your community of operation for the purpose of setting up a cattle ranch. If grazing land is specially established for cattle owners, some other business interests may soon begin agitation for the establishment of special areas for their operations and there may be no end to it.
In your opinion what do you consider the major challenge in protection of lives and property enshrined in our constitution?
Chapter 4 of the 1999 Constitution provides for Fundamental Rights of citizens of Nigeria. These rights include the right to life under section 33 of the Constitution, the right to dignity of human person and right to personal liberty under sections 34 and 35 of the Constitution and the right to acquire and own property under sections 43 and 44 of the Constitution. The right to life appears to be most important because you have to be alive to enjoy the other rights provided under the Constitution.
Therefore, the right to life is linked to the right to freedom of movement and the right to work and acquire property. The right to life is however not absolute but qualified and this has been so declared by the Supreme Court in the case of Kalu Vs. State. If you look at the Constitution, section 33 dealing with the right to life, you would discover that there are certain circumstances in which a person may be deprived of the constitutionally guaranteed right to life.
For example in execution of a sentence of Court in respect of a criminal offence of which the person has been found guilty and further a person shall not be regarded as having been deprived of his life if he dies as a result of the use to such extent and in such circumstances as are permitted by law, of such force as is reasonably necessary for example in defence of any person from unlawful violence or for the defence of property, in order to effect a lawful arrest or to prevent the escape of a person lawfully detained, or for the purpose of suppressing a riot, insurrection or mutiny. Coupled with the above are issues of non-functional health care system in the country that has led to the prevalence of otherwise preventable diseases. There are other issues of unhealthy traditional practices like female genital mutilation. We also have issues of militancy, criminal activities like armed robbery and kidnapping and lately the activities of Boko Haram that have completely devastated villages, property and human life in Northeastern Nigeria.
Apart from the Employees Compensation Act, 2010, are there other laws that provide for compensation of victims of violence and accident?
I am not aware of any particular law that provides for compensation for victims of violence and accident. I am however aware that the Administration of Criminal Justice Act, 2015, makes provisions under section 319 enabling a Court either within the proceedings or while passing judgment to order the defendant or convict to pay a sum of money as compensation to any person injured by the offence irrespective of any other fine or other punishment that may be imposed or that is imposed on the defendant or convict, where substantial compensation is in the opinion of the Court recoverable by civil suit. The Court may also order compensation in defraying expenses incurred on medical treatment of a victim injured by a convict in connection with the offence committed. These provisions are new in the administration of criminal justice in Nigeria.
Should we trust the governors on this new agitation for Fiscal Restructuring Plan (FSP), expected to alter the 52%-26% revenue sharing formula, so that the states get more?
I will answer this in context. As to whether we should trust the Governors on the new agenda, the answer is no. I say this with due deference to the Governors, particularly judging from the reports I read in the newspapers on how some Governors have handled the bailout funds provided by the Federal Government. From the report in the Vanguard Newspaper of April 23, 2016, most of the 23 states of the Federation that got bail out funds from the federal government for settlement of workers’ salaries and emoluments, diverted the funds for other purposes, thereby defeating the purpose of the government’s effort to provide succour for the workers. According to the newspaper report, a comprehensive analysis carried out by the Independent Corrupt Practices and Related Offences Commission, (ICPC), in conjunction with the Nigerian Labour Congress, (NLC), revealed that many of the states deliberately lied that they were owing their workers huge debts when the reverse was the case. A major feature of the analysis released by the ICPC, indicated that many of the states failed to apply the amount received from the federal government to settle their indebtedness to their workers, leaving the states enmeshed in huge arrears of salaries to the staff despite collecting the bailout funds.
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