COVID-19 EMERGENCY: UNDERSTANDING PATENT RIGHTS AND INFRINGEMENT by Adeola Oyeola

Covid-19 & Patent issues

INTRODUCTION

With the Corona Virus global pandemic now in full swing, the search for a cure/vaccine has become the focus. As a result, a few concerns ought to be addressed with respect to the rights of eventual inventors of medical/pharmaceutical solutions or vaccines (intellectual property holders). Inventors and medical discoverers are certainly motivated by clear guarantees of protection of the exclusive patent rights rooted in their inventions of drugs, modifications of previously existing drugs or novel medical testing equipment.

This article gives a neat background to this intellectual property issue. It further explains patent rights, patentable and non-patentable inventions and compulsory licenses, citing relevant provisions of international treaties and highlighting few examples of compulsory licences. It concludes with recommendations,

BACKGROUND

Several trials, effort, time, resources and expertise have gone into researches in countries such as the United States of America (USA)[1] and China[2]. This clearly reflects in some applications that have been made to obtain patent for Covid-19 treatment drugs. Concerns and fears of governments and the public are that owners of patent related to essential medical or pharmaceutical inventions may abuse their exclusive rights to such patents for the purpose of increasing profitability. Thus, proactive legal and policy steps are required to balance the rights of intellectual property holders and overall public interest or rights.

Apparently to resolve this issue, various international instruments and treaties, and the Nigerian Patent and Designs Act 1970 (PDA) have introduced the concept of compulsory licensing of patents i.e. to permit the exploitation of exclusive rights held by a patentee over an invention, without necessarily obtaining his consent for the purpose of wide utilization of the protected right.

The issuance of this licence is ordinarily to realise at least, one of three purposes:

  1. Massive production of patented products (e.g. patented drugs) to cure a disease:
  2. Anti-trust act to allow fair competition:
  3. Non-commercial use (e.g. by the government) in the interest of the general public.

Arguments have arisen on the fairness of such measure on patent owners. Patent owners have contended that it is disincentive to innovation and an unnecessary hindrance to the right of patent exclusivity. Considering this, an important question arises:

Are these arguments appropriate with respect to the use of essential inventions i.e. pharmaceutical products during extreme emergencies like the Covid-19 pandemic?

WHAT IS A PATENT?

A Patent is usually a grant made by the relevant government authorities within a country to protect new inventions or improvements thereon that are considered to have improved the way(s) the earlier inventions were made or used.[3]

In simple terms, a patent is an exclusive right granted for an invention – a product or process. It provides a new way of doing something, or that offers a new technical solution to a problem.

A patent is the grant to an inventor of a monopoly right to preclude another person from exploiting his invention without his consent for a fixed period. The monopoly is granted in return for the time and effort spent in making the invention. Patent owners may give permission or license to other parties to use their inventions on mutually agreed/contractual terms.

Patent protection confers upon the patentee the right to preclude any other person from doing any of the following acts; that is making, importing, selling or using the product, or stocking it for the purpose of sale or use.[4] In addition, patentees also have the exclusive right to assign the patent, or transfer the patent by succession, and to conclude licensing contracts.[5]

Patent rights are enforceable. The Federal High Court of Nigeria has the jurisdiction to entertain such matters.[6]

The Nigeria law of patents is governed by the Patents and Designs Act 1970 (PDA). Section 1(1)(a) provides that a patent may be granted for an invention that:

(a) is new:

(b) involves an inventive step:

(c) is capable of industrial application.

One of the rationales for grant of patent rights is to promote economic and technological development, being that patents apply to industrial application. Also, creative efforts are encouraged through Research and Development (R&D) with the grant of patent, which in turn enables the inventor derive benefits from his invention before it falls into public domain.

It also serves as an important source of technological information. A viable patent regime helps to facilitate the transfer of technology from technological advanced countries to less developed ones, in a way stimulates technology development indigenously.

Furthermore, a patent provides patent owners with protection for their inventions. Protection is granted for a limited period, generally 20 years.[7] Once a patent expires, protection ends, the invention enters public domain, meaning the owner no longer holds exclusive rights to the invention. At this point, it becomes available for commercial exploitation by others.

WHAT KINDS OF INVENTIONS CAN BE PROTECTED?

An invention must, in general, fulfil the above conditions to be protected by a patent. It must be of practical use; it must show an element of “newness” or “novelty”, meaning some new characteristic that is not part of the body of existing knowledge in the particular technical field. That body of existing knowledge is called “prior art”.

The invention must show an “inventive step” that could not be deduced by a person with average knowledge in the technical field and as such is applicable in any industry. Its subject matter must be accepted as “patentable” under law.

By section 1(4) (a-b) of the Patents and Designs Act, scientific theories, mathematical methods, plant or animal varieties, discoveries of natural substances, commercial methods are not generally patentable. It must not be against public policy or morality.

WHAT ROLE DO PATENTS PLAY IN EVERYDAY LIFE?[8]

Patented inventions have pervaded every aspect of human life. From electric lighting (patents held by Edison and Swan) and sewing machines (patents held by Howe and Singer), to magnetic resonance imaging (MRI) (patents held by Damadian) and the iPhone (patents held by Apple), the importance of patents surely cannot go unnoticed.

In return for patent protection, all patent owners are obliged to publicly disclose information on their inventions in order to enrich the total body of technical knowledge in the world. This ever-increasing body of public knowledge promotes further creativity and innovation. Patents therefore provide not only protection for their owners but also valuable information and inspiration for future generations of researchers and inventors.

COMPULSORY LICENSING OF PATENT

Licensing agreement for intellectual property (IP) can be voluntary or compulsory depending on the patent right holder/licensor’s disposition. While voluntary licensing is a more common form of authorisation and use of patented right for commercial purpose, there are occasions where licensors are unwilling to authorize the use (of their patents) to a potential licensee i.e. government or individual. Where this transpires, compulsory licences may be issued. This results from a court’s intervention, enforcing a licensing relationship under certain conditions without the licensor’s consent with/without compensation. Compulsory license can be said to be an authorization of the use of the patent rights by the government/court without prior consent granted. Compulsory licensing is one limitation to the rights of a patent holder.

Compulsory licensing when granted by the government/court, allows others to produce the patented product or process without the consent of the patent owner. It is usually associated with pharmaceuticals, but it could also apply to patents in any field.

In spite of the monopoly nature of the rights bestowed on a patent holder, compulsory licensing stands as a limitation to such monopoly rights. The concept of compulsory licenses is well provided for in the PDA and various international treaties and agreements such as The Paris Convention for the Protection of Industrial Property, Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), The Doha Declaration on The TRIPS Agreement and Public Health.

The Paris Convention for the Protection of Industrial Property confers each contracting state party to the convention the right to “grant compulsory licenses to prevent abuses which might result from the exercise of exclusive rights conferred by the patent…”. [9]

Also, TRIPS Agreement authorizes all member-states to the agreement to use compulsory licenses without the authorization of the right holder in appropriate circumstances[10] with respect to the stipulated conditions. Similarly, the DOHA Declaration states that “each member has the right to grant compulsory licenses and the freedom to determine the grounds upon which such licenses are granted.[11]and Nigeria is a signatory to the treaties.

In Nigeria, a combined interpretation of section 11 and the First Schedule to the PDA provides for the grant of a compulsory licence in respect of a patent in justified cases.  The PDA however, seems to create a dichotomy in the grant of this licence. Part 1 to the First Schedule provides for where a compulsory licence will be granted to a person who makes an application to Court and fulfils certain conditions. Part 2 of the First Schedule provides for the use of compulsory licences by government agencies.

Paragraph 1, Part 1 to the First Schedule provides that the proposed user would have sought the licence on reasonable commercial terms from the patent holder and his efforts to get a positive response from the holder within a reasonable time was futile. The proposed licensee then applies to the court to grant a license upon satisfying the stipulated conditions[12] when the license issued it is granted non-exclusive, does not permit the compulsory licensee to carry out importations or grant further licenses except in limited circumstances.[13]

In paragraph 15 of part 2 to the First Schedule to the PDA, where a Minister is satisfied that it is in the interest of the public to do so, he may authorize a person to make, purchase, exercise or vend a patented product for the service of the government agency in Nigeria. This authorization may be exercised before or after the grant of a patent to the person legally empowered to receive same.

During periods of emergencies, like the current public health emergency occasioned by the Covid-19 pandemic, the government is empowered through the compulsory licensing system to interfere with exclusive patent rights. The PDA provides that for any period of emergency, the powers exercisable in relation to a patented article or invention on the authority of a Minister shall include power to purchase, make, use, exercise and vend the article or invention for any purpose which appears to the Minister necessary or expedient –  for the maintenance of supplies and services essential to the life of the community; or for securing a sufficiency of supplies and services essential to the well-being of the community; or generally for ensuring that the whole resources of the community are available for use, and are used, in a manner best calculated to serve the interests of the community.[14]

In granting compulsory licensing, the PDA provides that emergency needs are to be considered in order to assess the lawfulness of a potentially infringing conduct (which under normal circumstances would amount to patent infringement). Similarly, Paragraph 4 of the Doha Declaration expressly permits members of the World Trade Organization (W.T.O) to take measures to protect the public health of its citizens.

The World Health Organisation (WHO) on 30January 2020 declared an outbreak of what is technically termed a Public Health Emergency of International Concern (PHEIC) and by 11 February 2020, WHO announced the novel coronavirus disease as Covid-19.[15] The WHO announced a large multi-country clinical trial to test drugs to treat Covid-19. The drugs to be tested include remdesivir, lopinavir and ritonavir in combination; lopinavir/ritonavir plus interferon-beta; and chloroquine and hydroxychloroquine.[16] All are known medicines originally developed for other indications. The WHO named the effort aptly the “Solidarity” clinical trial for COVID-19 treatment.

On 17th March 2020, the parliament of Chile unanimously adopted a resolution declaring that the global coronavirus outbreak justifies the use of compulsory licensing to facilitate access to vaccines, drugs, diagnostics, devices, supplies, and other technologies useful for the surveillance, prevention, detection, diagnosis and treatment of people infected by the coronavirus virus in Chile.[17] Also on 19 March 2020, Israel issued compulsory patent licences related to lopinavir/ ritonavir (brand name Kaletra), which is an HIV medicine currently being tested, including in combination with other products, for effectiveness in the treatment of Covid-19.[18]

Compulsory licensing have in time past, been employed by countries especially in instances of public health emergency. Consider, for instance, late 2006 and early 2007 when the Thai government authorized three compulsory pharmaceutical licences specifically; Plavix (owned by Sanofi, Aventis and Bristol, Meyers Squibb) for heart disease, Kaletra (Abbott), and Efavirenz (Merck), the last two drugs being to combat the Acquired Immunodeficiency Syndrome (AIDS).[19] On 18 April 2005, the Ministry of Health in Guinea issued compulsory licenses for the importation of drugs used in the treatment of AIDS from generic producers in developed countries.[20] In November 2005, Taiwan issued a compulsory license for patents needed to manufacture and sell generic versions of Tamiflu.[21] Obviously, the issue of public health emergency has in times past facilitated the use of compulsory licensing in different part of the world.

In  late  2006  and  early 2007,  the  Thai  government authorized three compulsory pharmaceutical licences In  late  2006  and  early 2007,  the  Thai  government authorized three compulsory pharmaceutical licences. In  late  2006  and  early 2007,  the  Thai  government authorized three compulsory pharmaceutical licences -.[22]

COMMENTS

It is submitted that the scope of surrender of patent rights should be expanded and encouraged in light of emergency situations such as the Covid-19 pandemic or for overall public interest. The patent holder by written declaration addressed to the Registrar, may surrender his rights.[23] Also, where it relates to a patent in which there is an already existing and registered contractual licence, surrender would be more appropriately considered if it is accompanied by the written consent of the licensee.

Since the surrender of a patent may relate to all or any of the claims made in respect of the patent, this path, if towed, can salvage the situation. In the process, it might become necessary to consider another option aside compulsory licencing – Patent right holders may surrender patent rights in fulfilment of their collective social responsibilities to the community. AbbVie already declared it would not enforce patent rights for its antiviral HIV drug Kaletra. Currently, the drug is undergoing clinical trials to determine its use against the coronavirus.[24]

CONCLUSION

A consequential effect of compulsory licencing is its disincentive to innovation and a restraint on patent exclusivity rights which can be resolved with the payment of appropriate compensation. The TRIPS agreement in Article 31 (h) provides that the right holder shall be paid adequate remuneration in the circumstances of each case, taking into account the economic value of the authorization. However, our principal legislation on Patents does not provide for payment of royalty or otherwise and further excludes any third party from liability for the infringement of any patent relating to the relevant article or invention.[25] Taking a cue from international treaties such as the TRIPS agreement, of which Nigeria is a party thereto, we can amend the relevant enactments in order to encourage payment of royalties.

Patent holder may also voluntarily license their rights and use the medium to negotiate other kinds of benefits from the government such as tax reductions and other incentives, in exchange for access to their exclusive rights. This would effectively resolve the issue of payment of royalty.

Compulsory licensing presents a stiff challenge to the R&D-based companies. Patent holders feel their patent security has been threatened with government issuance of compulsory licensing. In balancing between IP Rights and public good, pharmaceutical companies may also drastically lower prices in response as in this novel case. This article is written for general knowledge and for IP enthusiasts. For further information and guidance in filing for an IP right and/or drafting necessary agreements, kindly seek professional guide.


[1] The United States Patent and Trademark Office (USPTO) https://www.uspto.gov/about-us/news-updates/uspto-announces-covid-19-prioritized-examination-pilot-program-small-and last accessed last 10th May 2020.

[2] Bloomberg Opinion https://www.bloomberg.com/opinion/articles/2020-02-05/coronavirus-china-drug-patent-grab-is-scary-for-pharma accessed last 10th May 2020.

[3] See F.O. Babafemi, Intellectual Property: The Law and Practice of Copyrights, Trade Marks, Patents and Industrial Designs in Nigeria (2006) 342.

[4] See S.6 of Patents Design Act (PDA) 1970

[5] See S.24 of PDA

[6] See S.26 of PDA

[7] See S.7 of PDA

[8] WIPO https://www.wipo.int/edocs/pubdocs/en/intproperty/450/wipo_pub_450.pdf accessed last 10th May 2020 

[9] Article 5(2) of the Paris Convention for the Protection of Industrial Property

[10] Article 31 of the TRIPS Agreement

[11] Paragraph 5(b) of the Doha Declaration

[12] Paragraph 5 First Schedule of PDA

[13] Paragraph 6 First Schedule of PDA

[14] Paragraph 20 (b) (c) (f) First Schedule of PDA

[15] WHO, “WHO Director-General’s opening remarks at the media briefing on COVID-19” available at: https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19—11-march-2020 lasted accessed on the 10th May 2020

[16] Medicine law and policy https://medicineslawandpolicy.org/2020/03/covid-19-and-the-come-back-of-compulsory-licensing/ last accessed 10th May 2020 

[17] https://medicineslawandpolicy.org/2020/03/covid-19-and-the-come-back-of-compulsory-licensing/

[18] https://www.law360.com/articles/1255079/israel-defies-abbvie-ip-to-import-generic-drugs-for-covid-19

[19] BBC NEWS | Asia-Pacific| Thailand takes on drug giants http://news.bbc.co.uk/2/hi/asia-pacific/6587379.stm accessed 9th May 2020

[20] See Nigeria Law Intellectual Property watch Inc. https://nlipw.com/10-examples-of-the-use-of-compulsory-licenses-in-africa-2/ accessed 10th May 2020

[21] https://www.keionline.org/book/kei-rn-2007-2-recent-examples-of-compulsory-licensing-of-patents

[23] See S.8 PDA

[24] https://www.juve-patent.com/news-and-stories/legal-commentary/forced-cure-compulsory-licensing-in-the-coronavirus-era/

[25] See Para. 17 First Schedule PDA

BEFORE YOU AGREE: DATA PROTECTION TIPS by Victoria Adaramola

In the technology age where everything is digitalised, the drive for information and access could birth a certain manner of impatience.Worst still, this drive is capable of very dire and detrimental outcomes. A norm among netizens (users of the internet) is to come across contents such as Terms and Conditions (T&Cs), Privacy Policy and Terms of Use when using websites or apps.At the moment any of these contents pops up or is clicked, an option to agree before such website can be harnessed or the app can be used is seen. In recent times, cookies have become more popular in this wise. Cookies are usually designed to collect data of a client or user of a website. However little the cookie demands, data is still released in the process. Due to either uncontrolled joy of finding a solution to an immediate problem or out of sheer “I-do-not-care” waving of the hand, many readily click on the I AGREE column without thoroughly going through the content. Indeed, readily clicking on I AGREE usually aids quick access to the website/app, it could also be the biggest exposure of your most personal and treasured information, your data.

According to the Merriam Webster Dictionary, term of use govern the use of all online and any other electronic services. Basically, it may be described as a legal agreement put up by a service provider to a person requesting the service. Privacy Policy, on the other hand as defined by the Business dictionary, is a statement that declares a firm’s or website policy on collecting and releasing information about a visitor. It declares what specific information is to be collected and whether it is kept confidential or shared with other firms or entities.  A cursory look at both Terms of Use and Privacy Policy reveals that one of the primary purposes for which they exist is DATA.

Expounding on the importance and power that data wields, Adeola Adesina titled his article “Data is the new oil.” The rationale for this assertion is premised on the uniqueness of data to individual identity. With data, individual identities can be accessed or even manipulated. The category of Data that Terms of Use and Privacy Policy seeks to regulate is Personal Data of individuals, which includes name, date of birth, email address, marital status, among others.

TERMS OF USE/ PRIVACY POLICY AND THE NDPR

In 2019, the National Information Technology Development Agency (NITDA) in furtherance of data protection in Nigeria released the Nigerian Data Protection Regulation (NDPR). The implementation of the NDPR is followed by the implementation of the General data Protection Regulation (GDPR) in May 2018 by the European Union.  The NDPR makes provision for the regulation of the collection, processing, procurement and revocation of consent. Part two of the NDPR provides that the consent of the data subject must be obtained before any data is collected and before demanding such data, the purpose of collection must be specified and clearly explained to the data subject. It equally provides that the data subject must be able to withdraw consent easily. To ensure that firms are in compliance with the NDPR, NITDA licensed Data Protection Compliance Organisations (DPCOs) to audit the level of data compliance of firms. However, the functions of DPCOs do not extend to making sure that users thoroughly go through privacy policies and terms of use. It is all up to the user!

Most Term of use on one hand, and Privacy policy on the other, are usually lengthy and they contain certain terms that individuals need to pay attention to, to determine whether they really want to consent to such terms. Usually, the most crucial part of those terms appear when the individual has lost interest while they accept the policy or terms. The danger in this is that those terms are usually explicit and intelligently written in a manner capable of being understood by the individual. This makes it difficult to take certain actions against the entity since those terms were clearly stated and consent was validly obtained. In such instances, impatience to dutifully go through the terms/ policy becomes no defence at all.

Conclusion

In conclusion, your data is important as a data subject and it deserves all the diligence for its protection. Privacy Policies and Terms of Use contain how it will be treated by entities and that could expose you to a lot of harm such as spamming and identity theft. Hence, before clicking on “I AGREE”, to access an app or website, it is important to painstakingly go through the content of the policy or term of use.

IMPACT OF COVID-19 ON GLOBAL ENVIRONMENTAL GOVERNANCE – ABIDEMI PEACE SHITTU

INTRODUCTION

Undoubtedly, we live in a world riddled with environmental degradation and other global crises on natural resources. These exist in different forms with no part of the world standing as an exception. Environmental degradation poses so much threat not just to our human health but to the global economy and should be a major concern to a responsible government and thought leaders.

Epidemic outbreaks are no longer new to planet Earth. A few have been recorded in history and interestingly, we live in another crucial juncture in world history christened “the Covid-19 Era”, a name credited to the ongoing and dreaded Corona Virus pandemic. Notably, disasters emanating from environmental degradation are either necessitated by conscious or unconscious human actions and do not recognize man-made geographic borders. Consequences of environmental damages affect the entire globe. The legacy to leave behind for generations to come becomes very lanky and threatened to fatality. Certainly, the need to come up with strategies to maintain and sustain environmental resources is urgent today more than ever before in history.

THE CONDITION OF OUR ENVIRONMENT TODAY

Simply, environmental degradation is the exhaustion and mismanagement of earth’s natural resources in an exceedingly great way beyond their natural ability to replenish, occasioning a change and negative disturbance to our environment in which we live in a deleterious way. Most situations of environmental degradation were viewed to have been occasioned by some factors which have a robust link with the outbreak of epidemics emergencies recorded today, through the impact of some environmental risk factors on our environment.[1]

The largest environmental threat in the world is climate change and global warming,[2] by-products of which are persistently worsening weather and climatic conditions leading to unbearable and harsh human welfare and health conditions. Climate change contributes to the spread of some vector-borne diseases such as Malaria, Lyme disease, the West Nile Virus and among others, which contribute significantly to global burden of diseases.[3]

Climate change and global warming are basically propelled by the burning of fossil fuel [a non-renewable energy source],[4] leading to the release of carbon and other greenhouse elements into the atmosphere. This generates heat that is trapped into the atmosphere thereby causing a negative reaction therein and in our environment. This ultimate negative reaction in the atmosphere is majorly traceable to human commercial and industrial activities such as gas flaring, soot explosion, burning of bush refineries, bush burning, and gas/fumes emission even from home activities such as cooking, usage of power generating plants (generators) and lots more. In a recent publication of Common Dreams [an online breaking news channel whose mission is to inform, inspire and ignite change for common good] in the USA, made an awakening claim through their Environmental Scientist that:

“There is a single species that is responsible for the COVID-19 pandemic – US…We have a small window of opportunity, in overcoming the challenges of the current crisis, to avoid sowing the seeds of future ones.”[5]

Through the international community, the Nigerian government and some oil corporations had, in times past, made several attempts to curtail the burning of fossil fuels. Certain enactments and regulations were set up. These, among others include the 1969 (Drilling and Production) Regulations, the 1985 Associated Gas Re-injection (Amendment) Act 1979, and the Gas Flaring (Prohibition and Punishment) Bill 2016[6] – the purpose of this bill being to address the inadequacies of the 1979 Act. Presently, the bill proposes stiffer sanctions for persons or corporate entities involved in gas flaring in Nigeria from 1 January 2021.[7]

Notably, efforts have been made to no avail. Some organizations and agencies set up to enforce these laws have fallen short of minimum effectiveness. Challenges faced may be attributed to inadequate monetary support, dearth of effective infrastructural mechanisms and lack of stringent sanctions which is inextricably linked with poor law enforcement.

Section 44[3] of the 1999 Constitution of the Federal Republic of Nigeria (as amended) confers right to ownership and control of oil and gas resources on the Federal government:

“An exclusive right of ownership, control of all minerals oils and natural gas in under and upon any land in Nigeria, its territorial waters and exclusive right given.”

By the provision of the same Constitution, it is the primary purpose, duty and responsibility of Nigeria government to see to the security and welfare of its people, from whom their power and authority is derived from – See Section 14[2] of the 1999 Constitution of Federal Republic of Nigeria [Amended]. This clearly indicates that the government has a primary responsibility to ensure the environmental safety and security of Nigerians.

In 2014, a research by the Environmental News for Healthier Plants and Life revealed that climate change is majorly accountable for the-then novel viral disease outbreak – the EBOLA VIRUS.[8]

Today, we have COVID-19 in our hands with dire global complications including a geometrically teeming mortality rate. Furthermore, people are exposed to various ailments associated with the negative effects of climate change. This may have indirectly had some effects on global COVID-19 response. The environment being undermined and human health being stressed to ghastly limits,[9] human immune systems may have become generally weakened and more vulnerable to the virus.

Meanwhile, some preventive measures have been taken by the World Health Organization through National and Local Public Health Authorities,[10] with no vaccine yet discovered. One major preventive measure was the issuing of lockdown orders. The Nigerian government first handed down on the 30th March 2020.

In an interesting environmental twist, this lockdown measure would appear of real help in some parts of the world in redefining and rebirthing a new and sustainable environment for the nation’s ecosystem. However, this has not been so for some countries such as Nigeria. An unfortunate incident was Kano State recording a sudden and mysterious mortality rate increase[11] almost immediately after the State governor relaxed the lockdown order.[12] This led to a neighboring state – Kaduna – extending its movement restriction timeline with interstate movements outlawed for one month.[13]

Also, the poverty rate in the country has greatly increased, indicated in malnutrition and hunger strike among the people. Discrimination in the distribution of palliatives and relief materials by the Nigerian government was also recorded,[14] occasioning crimes like stealing and armed robberies. The raging Boko Haram insurgency cannot be left out in this equation.[15] As a result, the Nigerian environment condition has become even more devastating than it was pre-lockdown.

THE NEGATIVE IMPACT OF THE LOCKDOWN ON THE ENVIRONMENT

  • Nosedive in global oil demand due to restrictions on travels and other world economic and commercial activities. This also has greatly affected the energy market nationwide. Recently in the UK, the crude oil price suddenly crashed from $18 a barrel to -$38 (negative value), a negative recorded for the very first time in 25 years. As a result, producers are forced to pay to dispose oil excesses having run out of storage facilities.[16]
  • There is an increase in the usage of energy to generate electricity most especially through the use of power plants, for our home appliances without any adequate regulatory measures to conserve them, as everyone is restricted to home isolation. Knowing that, we are in a country where there is erratic power supply, people now tend to improvise for a guaranteed source of energy, since it is relatively inexpensive and not knowing that in the long run, our planet pays the price via the exhaustion of greenhouse element that are easily trapped into the atmosphere and destroys our ecosystem in which we live[17].
  • The rate of data usage within a shorter time is getting alarming, as virtually every activity now takes place online and the masses are tied up to their gadgets more, engaging in streaming online videos, engaging in online business, online academic and vocational courses, and lots more.
  • There is shortage of food supply to the masses. Though COVID-19 poses as more of a health crisis, the lockdown preventive measure seems to have brutally affected our agricultural sector by undermining the efforts of our peasant farmers to ensure that there is a consistent flow of agricultural produce. Commercial agriculturists, who are now the last hope of the masses for food supply, have initiated a drastic inflation in the price of staple crops. Due to this, affordability of daily meals becomes difficult and next to impossible. This does not seem to catch the fancy of the Nigerian government.
  • Presently, the high population and the economic inequality translate to unequal advantages/benefits from basic health facilities. More attention is now concentrated on people with symptoms of Covid-19, with lesser attention to those who need some major medical attention not related to the virus, especially pregnant women on antenatal and those scheduled for some medical meetings during this period.
  • Internally-Displaced Persons (IDPs) across the world appear to be more vulnerable with zero movement from one place to another to search for a means of survival. With zero shelter, zero access to medical facilities, scarcity of food and zero internal security for them.
  • Underdeveloped countries face greater threat of this virus due to poor health facilities. Some African countries like Burundi are in need of aid for their health sectors.[18]
  • Countries that rely solely on importation for survival are at higher risk during this lockdown. The Organization of Economic Corporation and Development (OECD) describes the effect of COVID-19 on world finance by stating that:

‘’This pandemic brings with it the third and the greatest economic, financial and social shock to the 21st century…This shock brings a double whammy: a halt in production in affected countries, hitting supply chains across the world, a steep drop in consumption together with a collapse in confidence.’’[19]

Meanwhile, there have also been positive sides to the preventive measures, giving lots of hope to the globe.

THE POSITIVE IMPACTS

There is now improved air quality recorded first in China [the world most renowned carbon emitter] where the outbreak first enjoyed global recognition in December 2019.[20] With an estimate of 1.1 million deaths per year in China due to air pollution before the outbreak and just within two months of the coronavirus lockdown had saved the lives of 77,000 Chinese children and elderly from air pollution alone.[21] This has helped in saving more lives in view of the death rate earlier recorded when the plague first began, with a reduction in their carbon emission fall. The air is getting purer for human consumption. The lockdown has put many industrial human activities on hold, preventing their environments from further degradation.

Furthermore, it was also reported by ABC News that there was an unexpectedly positive side effect of this outbreak in Venice, Italy – water in Venice canals are cleaner than they have ever been in living memory and water bodies are living their healthiest lives yet.[22] Noteworthy however, this has not been the case in many parts of the world, where very low enforcement and compliance with lockdown orders have been recorded.

The release of greenhouse gases into the atmosphere in our environment today has contributed to climate change as a form of environmental degradation. Potentially harmful effects on our health through the release of carcinogens that adversely affect the human respiratory system, increasing the global heat rate and causing the fall of acid rain, a very dangerous development for human, animal and plant sustainability.[23] By this, human health can be affected, and our crops damaged. These greenhouse emission activities have led to an impediment on the human right to life.[24] Most industries do not care about the lives of the people, they are more focused on their output and no strict measures have been clearly seen so far to be taken by the Nigerian government to put them under control.

SUMMARY

It’s no longer new to us that our environment has been greatly impaired. We are the major threat to our environment either through our direct and indirect human activities and other natural phenomena within the environment we live. Every state within the federation now suffers from at least one environmental problem. Humans, plants, animals alike and even the topographical layer of the earth have been affected. Our inability to tackle this had necessitated a downfall in our economy. The present novel virus known as Coronavirus, which had gain a global recognition today came in to existence through the implications of our degraded environment on us. This is now a major concern to all parastatals, whereby we need to up our game on how best we can promote a sustainable environment, not just for us but also, for the preservation of our posterity and the entire globe beyond the borders of Nigeria.

POLICY AND LEGAL RECOMMENDATIONS TO COMBAT ENVIRONMENTAL DEGRADATION IN NIGERIA

In Nigeria, there are several legal mechanisms and regulatory policies set in place to ensure that our environment is well protected for its sustainable wellbeing. Both the federal and the state government have the right to enact law [Example is the Lagos State Environmental Protection Agency [LASEPA]]  that seek to protect the environment in order to preserve the quality of life of all Nigerian citizen and to conserve our natural resources for the satisfaction of both our present and future needs. Our environmental laws ranges from the global to local laws, involving some international conventions and treaties adopted our Nation, Nigeria. Such as:

  • THE CONVENTION ON THE PREVENTION OF MARINE POLLUTION OF WASTE AND OTHER MATTERS, 1972

It was ratified by Nigeria in 1973. The treaties provide measures to prevent the dumping of waste and other pollution into the marine environment.

  • INTERNATIONAL CONVENTION FOR THE PREVENTION OF POLLUTION OF THE SEA BY OIL 1954 [AMENDED 1962 and 1969]

Nigeria assented to this treaty on the 22nd of April ,1968. The convention was aimed at preventing and curtailing the pollution of the sea, it prohibits the discharge of oily mixtures within the state zone.

  • OAU CONVENTION BANNING OUTRIGHTLY IMPORT FROM ALL FORMS OF TOXIC WASTES INTO AFRICA AND CONTROLLING TRANSBOUNDARY MOVEMENT SUCH AS WASTE GENERATED IN AFRICA

Nigeria signed this in Bamako, Mali on the 31st of January 1991. With the objective to prevent the importation of all forms of toxic waste within Africa and the movement of toxic wastes within Nigeria.

All these International treaties and agreements prohibit any conduct against it, by imposing stringent liabilities and setting up a compensational scheme for any member-state that act in contrary, through grant of an exclusive jurisdictional control for each member-states to protect their resources against any form of environmental menace.

Through NESREA – National Environmental Standards Regulations and Enforcement Agency [Establishment] Act 2007, a statue created under section 20 of the Constitution of the Federal Republic of Nigeria and created by minister of Environment under section 34 of NESREA. This act is responsible for the enforcement of all environmental conventions, treaties, and protocols to which Nigeria is now a signatory, including all environmental laws and regulations set up in Nigeria as our local laws. Some of which includes:

  • HARMFUL WASTES [SPECIAL CRIMINAL PROVISIONS etc] ACT[CAP H1 LFN 2004] : This prohibit the carrying, dumping and depositing of harmful waste on land and in territorial waters.
  • HYDROCARBON OIL REFINERIES ACT: This Act is majorly concerned with the licensing and control of refining activities.
  • ASSOCIATED GAS RE-INJECTION ACT: This prohibit gas flaring activities by oil and gas companies, without taken lawful permission by stipulating penalty for breach of the permit condition and these companies can’t use a single environmental permit for their activities.

There are different regulatory bodies set up to execute those Law, just to mention a few such as National Environmental Standards and Regulatory Agency [NASREA], Federal Ministry of Environment, Department of Climate Change, National Oil Spill Detection and Response agency and lots more.           

HOW THIS RECOMMENDATION CAN AFFECT THE ENVIRONMENT POSITIVELY THROUGH THE ROLE OF NIGERIA LAWYERS

In other to ensure the implementation of these regulations through their set up administrative bodies, there should be an viable enforcement strategies to make people adherence such as taking legal actions by prosecuting anyone acting in violation of the set laws, and a proper inspections by all environmental bodies be made from time to time to keep the environment clean against pilling up of waste and their failure to adherence to this, they should be held jointly liable. Also, rather than taking legal actions all the time due to the complexity of other cases we have in court today, a reasonable and effective negotiation can be considered through payment of fines and such fine must be used solely and immediately to remediate same environment that was polluted. Also, Polluters are meant to pay for their liability incurred by them either personally or jointly and severally, the Environmental Guidelines and Standards for the Petroleum Industry in Nigeria [EGASPIN] made this provision.

Since we already have laws that made provision for this, and it is also the function of the judiciary by section to interpret and apply the law where deem fit, through the embodiment of the Nigeria Bar Association. Also there should be an independence of the judiciary against any interferences from other arms of government or external pressures, so as to dispense their duties without any partiality and in all fairness, with this the public can earn their trust in them.

Also, the public should be allowed to have a voice in their environmental wellbeing, as the government implement the regulations through the regulatory bodies channeled by the National Environmental Standards and Regulations Enforcement Agency [NESREA], the public should  be given the access to have a feedback and make further recommendations on what is called The Environmental Impact Assessment, as deemed by the provision of Environmental Impact Assessment Act.

CONCLUSION

Whether we accept it or not, there is a demand to create a healthy environment to have a healthy life. By this, we can conveniently put long-term environmental factors that have the tendency of depriving our environment of its wholeness in check and in contemplation of the outbreak of any other epidemic.

We all have a role not just to protect ourselves but others in our environment too. And I also think with this crisis, we will be able to understand and know what matters to our health and safety more. Isn’t it so heartrending to know that this pandemic could threaten almost everything that matters to us, having global implications, and putting our lives on hold because of our nonchalant actions and I pray that when we all overcome this, we should have a sense of a shared responsibility to build up a zero-carbon world and healthier future Nation.

As we stay in isolation, even though this has been relaxed a bit by the federal government, the following matters for us to have a better world:

  • Avoid smoking, this is more dangerous not just to you but to your dwellers. I plead don’t smoke, there is no gain in doing so. You only put your health at risk, and you also owe a shared responsibility to save another person close to you from inhaling the fumes.
  • Eat healthy meal to avoid the consumption of infected food substance.
  • Drink clean water regularly, it saves life.
  • Engage your mind more to what will be of greater value to your world after this outbreak. Let’s be productive and let’s eradicate poverty together.
  • Help to promote the Social Developmental Goals, in other to save humanity and preserve posterity.
  • Help promote public policy.

[1] Environmental health in emergencies by the WORLD HEALTH ORGANIZATION – ˂https://www.who.int/environmental_health_emergencies/en/˃ ACCESSED: 8th May, 2020.

[2] HEALTH AFFAIRS BLOG – ˂https://www.healthaffairs.org/do/10.1377/hblog20181218.278288/full/˃ by DAVID INTROCASO, on 19 December 2018, accessed 3 May 2020

[3] THE ROYAL SOCIETY PUBLISHING on climate change and vector borne diseases: what are the implication for public health research and policy – ˂https://royalsocietypublishing.org/doi/full/10.1098/rstb.2013.0552˃ – PUBLISHED 5TH APRIL,2015. ACCESSED ON: 1ST OF MAY, 2020 at 8:00am.

SEE ALSO- CLIMATE AND VECTOR-BORNE DISEASES: A REGIONAL ANALYSIS by Andrew K.Githeko, Steve W.Lindsay, Ulisses E.Camfaloneri, & Jonathan A.Patz

[4] A publication by CHRISTINA NUNEZ [A writer and frequent contributor to National Geographic] on What are fossil fuels. It was PUBLISHED : APRIL 2, 2019. – <https://www.nationalgeographic.com/environment/energy/reference/fossil-fuels/> ACCESSED ON: 28TH OF APRIL, 2019 at  09:00pm.

[5] See the online link -˂ https://www.commondreams.org˃ – Without ‘’Transformative Change’’ to Global Economic systems, Human Risk Causing More Deadly Pandemics by JULIE CONLEY[ Published on Monday, April 27, 2020] ACCESSED ON 28TH APRIL, 2020 at 8:00pm.

[6] See, THE PUNCH NEWS on What Gas Flaring Prohibition Bill will achieve [Published November 17, 2016] – <http://punching.com/gas-flaring-prohibition-gas-flaring-prohition-bill-will-achieve> ACCESSED ON: MAY 1st ,2020.

[7] By referring same to the senate committee on gas for further legislative issues, as the Senate aimed to achieve a National Flare-out target in the year 2030. See NIGERIA SENATE PROPOSED STIFFER SANCTION FOR GAS FLARING – ˂http://saharareporters.com/2020/02/27/nigerian-senate-proposes-stiffer-sanctions-gas-flaring˃

 – PUBLISHED BY: The Sahara reporter, New York on February 27, 2020. ACCESSSED ON: MAY 1st, 2020.

[8] CENTERS FOR DISEASE CONTROL AND PREVENTION on Ebola Virus Disease[EVD] – ˂https://www.cdc.gov/vhf/ebola/history/summaries.htm˃l . ACCESSED ON 28 APRIL.2020.  Formerly known as EBOLA HEAMORRHAGIC FEVER and earlier discovered in 1976 in Africa, it was fully detected in 2014 and within few months, became a global medical threat.

[9] Q & A ON CLIMATE CHANGE AND COVID-19 by World Health Organization – ˂https://www.who.int/news-room/q-a-onclimate-change-and-covid-19˃ ON 22 APRIL 2020, ACCESSED ON: 11 MAY 2020.

[10] WORLD HEALTH ORGANIZATION on Coronavirus disease [COVID-19] advice to the public – ˂https://www.who.int.emergencies/disease/novel-coronavirus-2019/advice-for-public˃

[11] ˂https://www.aa.com.tr/en/africa/mysterious-deaths-in-nigeria-s-kano-state-1824281˃ – 150 DEATHS REPORTED IN THE REGION IN FIVE DAYS – 30TH MAY,2020.. ACCESSED ON 10th MAY,2020.

[12] ˂https://www.africanews.com/2020/05/08/nigeria-coronavirus-hub-updates-covid-19/˃ – AFRICA NEWS reported online on the 8th of May, 2020 by Abdur Rahman Alfa Shaban. ACCESSED ON 10th MAY, 2020.

[13] ˂https://www.reuters.com/article/health-coronavirus-nigeria-kano/Nigeria-kano-states-rise-in-deaths-notdue-to-coronavirus-state-government-idUSL5N2CE0LO˃ on HEALTH CARE April 26, 2020/ 9.59pm by Garba Muhammed, ACCESSED ON 10th MAY 2020.

[14] https://reliefweb.int/report/nigeria/covid-19-set-impact-hunger-and – SOURCE: SAVE THE CHILD/ POSTED: 23 APRIL 2020, ACCESSED ON: 10th MAY, 2020.

[15] UNDP Calculation using the AGLED database. ACCESSED: APRIL 1 2020 – ˂https://www.undp.org/content/dam/rba/docs/covid-19-00-response/UNDP-NE-covid19-briefing.pdf˃ 

[16] Reported by JULLIAN AMBROSE[ Energy Correspondent] on Wednesday 15th  April,2020. THE GUARDIAN – ˂https://www.theguardian.com/business/2020/apr/15oil-price-slump-as-market-faces-lowest-demand-in25-years-covid-19 ˃ ACCESSED ON:21st APRIL,2020.

[17] ˂https://www.saveonenrgy.comlearning-center/energy-saving-tip/how-does-saving-energy-help-the-environment/˃

[18] Press release on 14th April,2020-THE WORLD BANK – https://www.worldbank.org/en/news/press-release/2020/04/14/burundi-to-strengthen-national-health-system-and-prepared

[19] Coronavirus [COVID 19]: Joint actions to win the war by ANGEL GURRIA – OECD Secretary-General – https://www.oecd.org/about/secretary-general/coronavirus-COVID-19-Joint-actions-win-the-war.pdf&sa=U&ved=2ahUKEwjsteSn6IDpAhUMxoUKdiiCKYQFjABegQIBxAB&usg=AOvVaw2jNcQMtP8MH1aGqK-5vzmQ  ACCESSED ON: 1st MAY, 2020.

[20] WORLD ECONOMIC FORUM – https://www.weforum.org/agenda/2020/03/chinas-pollution-coronavirus-covid19-environment/  ACCESSED ON:5th MAY,2020, 8:00pm.

[21] https://www.forbes.com/site/jeffmcmahon/2020/03/22/video-watch-from-space-as-air-pollution-varnishes-over-china-during-coronavirus-lockdown-then-returns/#2e8d7fb035fo –BY : The Stanford Earth Sciences Professor, Marshal Burke on FORBES on the 22nd of March ,2020 at 12:00am EDT. ACCESSED ON: 3rd MAY,2020 BY 5.43pm.

[22] By Julia Jacobo on 18th March.2020 – ABC NEWS – https://abcnews.go.com/international/vernice-carnals-clear-fish-coronavirus-halts-tourism

[23] THE NATIONAL LIBRARY OF MEDICINE – https://pubmed.ncbi.nlm.nih.gov/27231877/

[24] CLIMATE CHANGE AND HUMAN RIGHTS. CAN THE COURT FIX IT? Source:BOELL on 19 March,2019. See – https://reliefweb.int/report/world/climate-change-and-human-rights-can-courts-fix-it

COVID-19 AND THE IMPORTANCE OF DATA PROTECTION by AMARACHUKWU NNEBEDUM

IntroductionCOVID 19 AND DATA PROTECTION

International and national agencies have become more conscious of data protection, as a result of the grave consequences and dangers posed by data privacy violations in our data-driven world.

In 2018, the European Union first took giant steps to unify all European data protection laws into one single law known as the General Data Protection Regulation (GDPR). It stipulated measures for handling, processing, and control of personal data of European citizens globally.

The Nigeria Data Protection Regulation (NDPR)

In 2019, the National Information Technology Development Agency (NITDA), in the same guise, issued the Nigeria Data Protection Regulation (NDPR). The regulation sets out to safeguard the rights of individuals to data privacy; to ensure the safe conduct of transactions involving the exchange of personal data; preventing unauthorized and criminal use of personal data.[1] The NDPR seeks to protect the personal data of identified or identifiable natural persons referred to as data subjects. Such personal data includes a name, photo, email address, bank details, medical information, computer Internet Protocol (IP) address and any other information specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

Any person or organization that collects, processes, or stores, such personal data in the course of its operations (data controller or processor), is charged with a duty of care. Amongst other things, the organization must ensure that personal data is collected and processed by following specific, legitimate, and lawful purposes consented to by the Data Subject. It must also ensure that the data collected is secured against all foreseeable hazards and breaches such as theft, cyber-attack, dissemination, and manipulations of any kind.[2] Organizations are also mandated to conduct an audit of its privacy and data protection practices and submit a detailed audit report to NITDA[3] and ensure continuous capacity building for its employees involved in any form of data processing. The NDPR made provisions for licensed Data Protection Compliance Organisations (DPCOs), who will assist organizations with audit, training, and data protection compliance consulting.

COVID-19 and Data Protection

In the context of data protection, it is crucial to note that the COVID-19 pandemic did not eradicate rights to privacy and data protection. These rights are still very much applicable and operative. Organizations are not relieved of the legal responsibilities of data protection. More than ever now is the time to uphold the principles of privacy and data protection.

Of a truth, the outbreak of COVID-19 and its development into a global pandemic have massively disrupted business processes and slowed down or halted business operations across industries.  Organizations strive to sustain their business operations by adopting remote working strategies and online business processes. Organizations, such as hospitals, media houses, and government agencies (like Nigeria Center for Disease Control), are operative and actively involved in gathering and disseminating information to help contain the virus. So long as these activities involve the collection and processing of personal data of an individual (name, health data, status, etc.), data protection comes into play.

As many organizations are encouraging or mandating employees to work remotely, it is essential to review remote working policies. It may also be necessary to perform a risk assessment where remote working or online services are likely to result in a high risk to the privacy rights and freedoms of individuals. For instance, where an organization introduces a different means of processing personal data, (as in the case of remote working), it puts the personal data at a higher risk.

COVID-19 response activities reflect the need for data protection. As a result, data protection regulators across the world emphasize data protection during and have taken a commendable approach to data protection issues in these times. For instance, the European Data Protection Board (EDPB) released a statement on data protection in the context of COVID-19, stating that Data protection rules (such as the GDPR) do not hinder measures taken in the fight against the coronavirus pandemic.  However, even in these exceptional times, the data controller and processor must ensure the protection of the personal data of data subjects.[4]

Also, the Information Commissioner’s Office (ICO) in the UK published guidelines for enforcement of data protection obligations during the COVID-19 pandemic. The ICO decided to adopt an “empathetic and pragmatic approach.” Confirming that it will continue to recognize the rights and protections granted to people by the law, both around their personal information and their right to freedom of information; and still, be flexible enough to consider the economic and financial pressures and the burdens that organizations are going through as a result of the pandemic.[5]

In the case of Nigeria, although the (NDPR) mandates Data Controllers to conduct a data protection audit through a licensed DPCO and file an audit report with NITDA by March 15, NITDA, in response to COVID 19, extended the deadline for submission of annual data protection audit report to June 30. Thus, giving organizations more time to comply in the face of the pandemic. It is, therefore, exigent for organizations to utilize the extension granted by NITDA and avoid penalties for non-compliance.[6]

Conclusion

Insofar as the reaction to the outbreak of COVID-19 has interrupted business as usual, it is still mandatory for organizations to comply with the requirements of the NDPR. They can start by consulting a licensed DPCO to review their data collection and processing activities and take appropriate actions to comply with the NDPR as non-compliance may result to a fine of up to 10million naira or 2% of the annual turnover for the preceding year and other legal actions against the organization.

 

[1] Section 1 of the NDPR https://nitda.gov.ng/wp-content/uploads/2019/01/Nigeria%20Data%20Protection%20Regulation.pdf

[2] Section 1 of the NDPR

[3] Section 3.1.5 of the NDPR provides– within 6 months after the date of issuance of this Regulation, each organization shall conduct a detailed audit of its privacy and data protection practices. Section 3.1.6&7 further provides that where a Data Controllers processes the personal data of more than 1000 in six months and on annual basis, a data Controller who processes the personal data of more than 2000 data subjects in 12 months shall, not later than the 15th of March of the following year, submit a summary of its data protection audit to the Agency.

[4] https://edpb.europa.eu/sites/edpb/files/files/file1/edpb_statement_2020_processingpersonaldataandcovid-19_en.pdf

[5] https://ico.org.uk/media/about-the-ico/policies-and-procedures/2617613/ico-regulatory-approach-during-coronavirus.pdf

[6] Section 2.10 of the NDPR provides for penalty sum of up to 2% of Annual Gross Revenue of the preceding year or payment of the sum of 10million naira whichever is greater.

STEPPING INTO THE BAR

Dear new wig, before we proceed, I must sound a note of warning. The end of this trip is the most important part of it. Depression might seem like an impulse; it comes arbitrarily like an unwieldy ghost. However, any moment you find yourself depressed is a reality check on how far you have travelled towards reaching your ultimate destination. Resilience and Intensity are very essential. We will deal with that topic soonest.

…AND HERE COMES EPISODE II

Ultimate Destination
The first and second questions go five and six. Dear New Wig, you must at this point have a clear design or layout of when (and/or most crucially, where) your professional career will end up before you finally retire and live out old age into extinction. This is your ultimate destination. Imagine driving your car and asked about your bearing or destination. Trust me. If you do not know with clear conviction, where you are headed, you immediately realize your abject folly; confusion and disarray sets in immediately. Notably, paramount and immortal historical figures have suggested that your destination which is your goal should be “Big, Hairy and Audacious”. Make no mistake here please. Your destination MUST be realizable. An unrealizable destination signifies a lack of mission, focus and direction from the very scratch – a dead-on-arrival.

EPISODE 3 COMES YOUR WAY SOONEST. Don’t forget the chant: STAY RIVETED!

STEPPING INTO THE BAR

MISSION UNLOCKED? A REMINISCENCE OF THE CALL

INTRODUCTION

Be a lawyer, it is Legal. I am already one anyway, and nobody! Nobody, I repeat would willingly miss the rarity and exclusivity of being a bona fide member of the noblest profession in the universe – the intellectual pantheon of learned super humans! I see a hand of exception up. Well, such ‘will’ must have ‘village statutory flavour’ robed in it. Those that feel injured by this insufferable show of pride may kindly hug the closest electricity transformer and be useful in our quest for constant power generation; blood is indeed thicker than water.

Let us sideline the bragging rights for now and use our heads. Now, the Headline: The call you just picked up is serious business. Kindly do not waste my airtime; pay undiluted attention dear reader. Let’s get started.

Results are out! Mixed feelings – jubilations, annoyance, regrets, lamentations, curses, comas, tears of joy and sorrow, and on goes the list of emotional occurrences. The Call later came through with photo shoots, immaculately new wigs and majestically symbolic gowns adorned with matching bibs, shoes and other relevant accessories. Fast-forward four days. The Call had been picked up. And Alas! A new era is heralded. A new phase of life unearths. The next stage of existence unfolds. But am I ready? Should I be ready? To what extent am I ready? Can I still be ready? Relax, but only for the span of this chat. Let us have a dispassionate tete-a-tete.

Dear new wig, this new point in our lives is arguably the most important part of our entire lifetime. It is the most sensitive at this stage because it is where we are now. And the truth is, this stage of life was reasonably foreseeable. But we have to admit how difficult the task of using our brains to think is. Let alone thinking constructively, foreseeing events, planning and mentally executing plans. The point here is, if you have not foreseen this stage previously and planned either fantastically or realistically towards it, my learned friend, you have not done well at all. You have been a disservice to yourself! Was it not primary school we were taught in sonorous nursery rhythms that he, who fails to plan, plans to fail? Why have you planned to fail?

But look! No way! You must have a rethink. You cannot afford to fail twice. Better late than never. This stage of life requires you to take the following steps now or never:

*PLAN*

Upon obtaining those two certificates in your hands, your journey has only begun. The use of ‘journey’ here is intentional as symbols of transportation will be deployed effectively.
The journey after the Call is a compulsory one. You do not choose whether to embark on it or not. This is because any delay or stagnation you drown yourself in is already a part of your journey and a significant one at that. The standard unit of this lifetime trip is time which never pauses. On this post-call journey, the following questions must be answered:

=> What do I want to achieve through the legal profession?

=>Where is my ultimate destination?

=>Why is that my ultimate destination?

=> Am I capable of embarking on this trip?

=>What route(s) is/are the best for this trip?

=>What is the duration of my trip?

=>Where is/are my stop-overs?

=>What tools do I need for this trip?

=>Do I have these tools now?

=>How soon do I need to get these tools?

And the burning questions go on and on.

This marks the end of Episode 1 of this call. The next episode comes your way soonest. But before then, let your thinking faculties be set for a serious work out. In fact, it must begin now.

Stay riveted.

“XTA”: RESTRUCTURING AND THE NATIONAL DEVELOPMENT PUZZLE

“XTA”: RESTRUCTURING AND THE NATIONAL DEVELOPMENT PUZZLE


Ease of Doing Business Index has made us smile. Ease of Paying Taxes Index has brought our faces rare glow. VAIDS have ensured the country’s purse swells by USD50 billion. With the present Nigeria, this smile and glow are once-in-a-lifetime trances. Even our easiest fantasies fail to confidently bring solutions to our plight as a sovereign state. So, let us smile and make merry. But how do we even get items for merriment? Oh. You think the 50 billion USD will reach your street? O boy eh, keep dreaming. You see, substantially, there is a wide divide, a chasm between the growth of the economy and its development. Let us not even veer towards sustainability yet. Without bridging this chasm? Let us take a short stroll before we wield the gavel.

Oil prices have nosedived and is nose bleeding gorily. Agriculture and solid minerals remain a viable source of national revenue but not at its optimal shape. Looking through the transparent test-tubes of history, history of the development of the developed countries, we find one curvy, nice-figure-eight appearance. Tax. Yes, tax is the real deal. Like solar power generation, tax does not make noise. Silently, steadily but surely, it goes on and on. Of course, what is constant if not death and taxes. But the truth must be sprinkled on this field straightaway. Taxes can only sustain a socio-political economy which is in itself, sustainable in values, principle and foundation. How sustainable is the Nigerian socio-political turf? Our searchlight must get brighter here.

In the 1960s when regionalism held sway, the budget of the Western Region alone superseded that of the federation and the other regions combined! Sounds quite outrageous right? But this was a budget whose arousal was borne out of regional necessity. There was a plan. The budget was meant to vehicle this plan efficiently. Each region was meant to be ruled, to grow and develop at its own pace, albeit healthily and competitively. Then suddenly, the Aguiyi of this world arrived and supplanted. Unification Decree No. 34 showed up. Regionalism was defiled and murdered in cold blood. Unitary Federalism began in earnest and would never be supplanted till this day. Nigeria’s problems are enormous and sometimes, amoebic and amorphous in description. It is evidently unfair to situate the reason for the inane aging of the Nigerian state on lack of proper federalism alone. Nonetheless, this piece will defy all odds and without noise, situate the blame on it. Let us defy the odds shortly.

The Federal government has been constitutionally made, extremely lucrative and juicy that little attention is paid to the development of the regions anymore. Make no mistake about this – the regions have not grown better than they were during the days of regionalism. VAT, Solid minerals, Companies, Policing, Defence, Petroleum and Liquid minerals, Maritime, et cetera are exclusively concentrated at the centre by the instrumentality of the Exclusive List of powers. If these powers are in the federal government, then just forget about the sharing and revenue allocation formulae deceit. The regions can never get serious, innovative and developed. They will continually slumber and live in economic putrefaction. Then, even if a region or state decides to wake up, the entire federation wakes up with such state but in full opposition to it. I mean, who are you to wake up when we are all sleeping? You are proud o. Enter, case study, Lagos State.

A short digression may be relevant here. Have you ever wondered why Biafra secessionist calls rise and fall like epileptic bouts? Have you not wondered why the notorious and dreadful Niger Delta militancy never ceases to cause alarming concerns? Why will you vandalize pipelines in your own home? Of course, the Nigerian state suffers from epilepsy. But the answer is not far-fetched. Ants can only destroy their castle when it is no longer theirs.

When sense of belonging is lost, the belonging itself loses regard. Historical facts and figures abound. Authoritative dicta abound. But the simple truth is one, and it is the call for the restoration of social, economic and political sense of belonging to the regions. Taxes are yielding record-breaking revenues. Oil prices have been projected to increase soonest. The ministry of solid minerals is showing some spicy promises. Agriculture now contributes over 5% to the economy unlike the abysmal less-than 3% previously. Of all these prospects, this piece sees tax as the mitochondrion of the economy in terms of steady and sustainable source of government revenue. On this note, I seize this moment to announce the solution to the puzzle “XTA” – TAX!

But hey! Do not lose guard just yet. These are all economic growth indices. But the pepper that must be pungent in this soup is the fact that there can be no true development without restructuring the socio-political economy of the Nigerian State. For the tax system, Companies income taxes and VAT should belong to the concurrent list of powers. The States must be made to manage, control and make the best use of their resources, natural and otherwise. Lagos State is the largest contributor of VAT to the Nigerian treasury. But it is one of the least-enjoying States of the same revenue it effulgently sources. Where is the sense of belonging? Where is the motivation to other States to work on their ease of doing business in order to compete healthily with the VAT kings? With the present system, it is a no way!

Our stroll reaches a final lap here. The chasm between the growths we are experiencing at this moment in our history and the fantastic development of our desires lies in Restructuring. Restructuring is just that missing link between the swelling of economic fortunes and the equivalent swelling of personal fortunes. The National puzzle for sustainable development has been unlocked. Then why drag our law-making feet again? Indeed, it is realized that the federal legislature is enrobed with the power to restructure as restructuring fundamentally has to be rooted in the grundnorm, the Constitution. Whether the “cameras” of both houses will capture them in the history books in a sonorous way is a ball in their respective courts. What ball is in our court? Optimism, our only weapon.

Olukolade O. Ehinmosan,

Aspiring Legal Practitioner.

ehinmosanolukolade@yahoo.com

DELAYS IN LITIGATION: A SIMPLE ELIXIR

DELAYS IN LITIGATION: A SIMPLE ELIXIR

Jermaine Thornton died in 2005 from grievous bodily injuries inflicted on him by officials of the Drug control agency in the country. The deceased’s family decided to take a civil action against the agency. As I write, the claimant has not closed his case. More than twelve (12) years! The truth is, nobody is perplexed any longer. Litigation has become a trademark snail of judicial disrepute. It has emerged the easiest frustration of the common man. Lamentation must only last for a short while. Why do we not simply identify the issues first?

Appearances are announced at each trial date. The first witness is called upon for examination-in-chief. This singular process takes at least, one trial date. Some contentious ones involving unending objections and replies, after which a ruling is given by the court takes up to three adjournment dates. Examination-in-chief of each witness must be done at a slow pace, infact, extremely slow pace, because the trial judge is taking notes in long-hand. Cross-examinations follow a very similar pattern particularly the aspect of time-consumption. In some cases, re-examinations are allowed and take time too just because ‘my Lord is taking note’. This happens for each witness called upon to testify, willingly or by subpoena.

This process appears smooth on paper but is dreadfully time-predating. Then, one of the very worst happens. The judge is transferred from one jurisdiction to the other. The trial is to begin de novo. Alternatively, an application for fiat is made to the Chief Judge of the trial court (as the case may be) to permit the transferred judge to continue with the trial of the matter, at any expense, time and finance most notably inclusive. I will desist from making further sketches of the time-devouring judicial system we have in this part of the world. The focus here is the prescription of a viable elixir to this menace of avoidable time wastage.

In truth, the value of observing the countenance of each testifying witness at the trial cannot be swept under the carpet. The weight of justice and fairness attached to taking down comprehensive notes on occurrences during the trial process is invaluable. However, modernity and civilization dictate that we find a way to make laws for our common good and progress and not in ‘wrestlemania’ and contamination of the streams of justice. Justice rushed is surely justice crushed. But this never overrules the fact that justice delayed is justice denied. Witnesses die, get missing and untraceable, and/or become sullen and disinclined towards giving testimonies in court. This becomes commonplace where litigation is allowed to take a life time.

Please, who says there can be no Closed-Circuit Television (CCTV) in our courtrooms to ensure that the countenance of witnesses is monitored closely while video records are diligently stored? Please who has declared that the courtroom is immune to computer systems and projectors handled by skilled, fast and accurate computer gurus employable by our judiciary? Why is it not possible for a computer clerk to type every word of counsel, witness and the judge (or amicus curiae) on a computer system while same is simultaneously projected in the courtroom? What is/are that/those factor(s) that make transfer of judges inexorably compelling at the fatal expense of justice and fairness? These are questions that must be answered frankly. Whether Alternative Dispute Resolution (ADR) becomes lucrative and overarching can and will never extirpate the importance of courtroom litigation. Some cases just ultimately have to pay visits there for much-needed redress. These visits must not metamorphose into imprisonment for life. There must be an end to litigation. This end must strap to its back and entire body, justice and manifest justice. Gentlemen of the largest Bar in Africa, the state of litigation in Nigeria is saddening and tearful. But let us never fail to see while we cry.

Olukolade O. Ehinmosan,

Aspiring Legal Practitioner ehinmosanolukolade@yahoo.com

N.B

The character of Jermaine Thornton is purely fictional. The legal situation is however real. The writer can be reached for details.

Legal Practice and the Internet: The Clash

ETHICS OF THE LEGAL PROFESSION AND THE USE OF THE INTERNET: THE CLASH

Immaculate White. Symbolic Black. Effigy of Justice. Nobility. Solemnity and Formality. Confraternity. These are words and phrases that point emphatically to the legal profession and its practice. White on black strongly suggests the purity of justice in solemnity and sobriety. This White on black has manifested itself right from the very outset of modern legal practice both on the legal turf of our colonial masters and our very legal system. The formal dress code and the appropriate ways of advertising and creating awareness about legal services are instructive in this regard. The emergence and sudden sweep of the information media by the internet appears to have also ensured an equivalently sudden sweep in the adherence to the ethics of the legal profession concerning creating awareness and advertisement. This short write-up soberly beams searchlight on this apparent situation using the law as the benchmark, with the aim of stimulating commentaries and opinions on the issue, converse or approbrating.

Importantly, this brief exposition focuses on two aspects of the display of legal professional ethics. These are, the individual lawyer on one hand, and an association or conglomerate of lawyers called a law firm or chambers as the case may be. Let us get this jaunt rolling.

By Rule 7 of the Rules of Professional Conduct for Legal Practitioners, 2007, subject only to the permission of the Bar Council, a legal practitioner is precluded from practising another profession simultaneously with the legal profession. A legal practitioner is equally precluded from practising while simultaneously engaging in ‘trade or business’. Evidently, the varied, multi-faceted and ever-increasing dimensions of legal practice bring one to an obvious realization that the definition of ‘legal practice’ is an unruly horse. Meanwhile, the tenor, spirit and letter of this provision speak volume of the sobriety and minimal competitiveness of legal practice.

With respect to a conglomerate or association of lawyers, of huge germaneness are the provisions of Sections 39 and 40 of the same Rules of Professional Conduct. Advertisement and promotion of legal services must be fair and in conformity with the provisions of the Rules. Sub-rule 2 under Rule 39 categorically outlaws any advertising or promotion of legal practice/service which either makes comparison (direct or implicit) with or criticizes other lawyers, or any advertisement or promotion which includes statement about the quality of the lawyer’s work, the size of success of his practice or his success rate.

Regarding an individual lawyer, Sub-rule 3 of Rule 39 is heavily instructive. Notwithstanding the ‘fairness’ or ‘propriety’ of an advertisement or promotion of legal service/practice, a lawyer shall not solicit professional employment DIRECTLY OR INDIRECTLY:
“(a) by circulars, handbills, advertisement, through touts or by personal communication or interview;
(b) by furnishing, permitting or inspiring newspaper, radio or television comments in relation to his practice of the law;
(c) by procuring his photograph to be published in connection with matters in which he has been or is engaged, or concerning the manner of their conduct, the magnitude of the interest involved or the importance of the lawyer’s position;
(d) by permitting or inspiring sound recordings in relation to his practice of law; or
(e) by such similar self-aggrandizement.

We have to make a reconnaissance to the aspect of legal conglomerates again. Rule 41 stipulates that a lawyer or a firm may display at the entrance of or outside any buildings or offices in which he or it carries on practice, a sign or notice, containing his or its name and professional qualifications, the sign or notice being of reasonable size and sober design. Law firms and chambers in recent times are now at least, in two distinct worlds of appearances. Law firms are sited at strategic geographical areas. Law firms are now equally situate at strategic ‘netical’ or internet-based locations too! Truly, the Rules in the instant inquiry evidently neither contemplates the internet advertising situation nor does it contemplate law firms that are both virtual and real in sites. However, the sobriety of advertisements and promotions remains key and infectiously vital.

Flowing from these few points that have been afore-raised, these questions come to fore:

(a) Is it legally ethical for a lawyer to advertise and promote himself on the internet? If so, to what extent?

(b) Is it legally ethical for a lawyer to brandish his legal qualifications, client or clientele achievements and conquests on the internet? If so, to what extent?

(c) Is it legally ethical for a lawyer to make the internet public aware of his availability for job placement or employment connected with legal practice? If so, to what extent?

(d) Is it legally ethical for a law firm or chambers to boast of its achievements on the internet? If so, to what extent?

(e) Is it legally ethical for a law firm or chambers to make its designed insignia, mission statements and other organizational details openly available on the internet? If so, to what extent?

(f) Are virtually (if not all) all law firms, chambers and lawyers alike not culpable of violating the Rules? If so, the instances must now become clearer and easier to highlight and lay bare.

These are questions that require nourishment from informed legal opinions. Let the brainstorm begin in earnest. This writer is equally not exonerated. A follow-up is nigh but certainly, not now. So for now, enjoy your day and night!

Olukolade O. Ehinmosan,
Aspiring Legal Practitioner.
ehinmosanolukolade@yahoo.com