August 7, 2012 § 1 Comment
By Kevwe M. Omoragbon, Northumbria University, UK.
It has been ten years of the introduction of clinical legal education in Nigeria. It can be said that the country has benefitted from the tidal flow of the global clinical movement. There has been a steady growth in the number of law clinics bringing it to fourteen law clinics which are situated within the universities and some campuses of the Nigerian Law Schools. The main goals of the clinics are to train law students in the practice of law as well as provide free legal aid to less advantaged citizens. A recent legislative change to the Legal Aid Act now legally recognizes law clinics as being engaged in the provision of legal aid.
Despite the gains of CLE, several challenges are still being faced by the law clinics. The focus of this paper will be to address the legal impediment which prohibits anyone who has not yet been called to bar from appearing in any court of law, this out rightly excludes law students. This paper argues that the practical training of law students is incomplete without a measure of appearance in some courts and/or tribunals.
The methodology of the presentation will involve the use of an ethnographic case study to highlight these challenges, and then go on to discuss what can be done to address these problems especially through law reform as well as identify who the actors and stakeholders are in the drive towards the reform.
Clamour for reform of legal education in Nigeria began after the return to democratic rule in 1999. Consequently, the Nigerian Institute of Advanced Legal studies organized an all-stakeholders conference to discuss the fundamental issues concerned in legal education in Nigeria. The conference resolved on the need to refocus legal education for the Nigeria of the twenty-first century. After the conference, the Nigerian Bar Association set up a committee on legal education to liaise with all legal education institutions with a view to improving legal training. Moreover, the Nigerian Bar Association Summit on legal education held in May 2006 passed a resolution calling for the adoption of clinical legal education for all law programmes in Nigeria.
In a bid to develop and institutionalize clinical legal education in Nigeria, the Network of University Legal Aid Institutions, Nigeria (hereinafter referred to as NULAI) was established in 2003 as a not for profit organization. Its membership is open to legal clinics/Legal Aid Institution of Nigerian Universities and Law schools. Its activities include, promoting clinical legal education, reforms of legal education, access to justice and legal aid by organizing colloquiums, training workshops and giving grants for the provision of financial and material resources to law clinics.
At the time of this presentation, there are fourteen law clinics located in Faculties of law of Nigerian Universities as well as campuses of the Nigerian Law School. Most of the law clinics started as general interest law clinics with the exception of the Women’s Law Clinic, University of Ibadan. Over time, they have become more specialist focused especially in the area of prison decongestion. For example, the ABSU Law Clinic, Maiduguri Law Clinic, Akungba Law Clinic, EBSU Law Clinic and UNIUYO Law Clinic who started by providing legal advice, ADR and human rights education, commenced a prison service in 2009 and presently are working to assist over 550 pre-trial detainees. The Women’s Law Clinic from inception started out as a specialist law clinic and deals with cases of domestic violence, matrimonial issues including divorce and child custody, succession, employee-employer as well as tenancy disputes. It has handled over one hundred cases out of which seventy-four were successfully concluded. All law clinics also benefit from grants, several capacity building workshops and participate in an annual client counseling skills competition.
The country has also seen a law reform which now legally recognizes law clinics as providers of legal aid. The Amended legal Aid Act (attached) recognizes law clinics. The Legal Aid Act, 2011 (Part IV Section 17) provides that “The Council shall maintain a register of non-governmental organizations and law clinics that are engaged in the provision of legal aid or assistance to persons who are entitled to legal aid under this Act”.
Despite this feat, the clinics cannot rest on their oars as there are challenges militating against the access to justice which need to be urgently addressed. The following case study brings to light some of these challenges which hamper the provision of legal aid by law clinics.
This case study is an example of the type of case the law clinics will deal with and the common problems they encounter. Yetunde is a mother of four children ages 11, 8, 5 and 8mths. The first three children are female while the last baby is a male child. Her marital problems started after the birth of her third female child. Cultural values are attached to male children as an average Nigerian man wants an heir who will bear his name and take over his inheritance after his demise. Yetunde was sent out of her husband’s house shortly after the birth of the last child having being accused of adultery and witchcraft which is a clog in his progress. Her husband also denies the paternity of the last child and won dissolution of their marriage from a customary court who awarded custody of the first three children to her husband and a monthly maintenance allowance of N1,500 (which is equivalently £6) for the last child. This dissolution was done in a customary court despite being married under statutory law after traditional marriage. In Nigeria, there are three legally recognized types of marriages- the statutory marriage or marriage under the Act, the marriage under native law and customs or the traditional marriage and the Islamic marriage. Many couple combine at least two of these types of marriages creating the practice of ‘double deck’ marriages. Double deck marriage is rife but so long as there is a statutory marriage after the celebration of a traditional marriage, the statutory marriage takes precedence and can only be dissolved in a High Court and not a customary court. A customary court only has jurisdiction over marriages which are solely conducted under local native law and customs.
Yetunde had to rent a studio apartment with her savings as a yearly tenant but just six months into her tenancy, she was issued a notice to quit the property within six months. She was informed by reliable sources that her husband had mounted pressure on the landlord to evict her whilst also accusing the landlord of committing adultery with his wife. Yetunde then approached the law clinic for legal aid in respect of two main issues:
- Custody and maintenance of her first three children which she claimed are being maltreated by her husband’s new wife.
- Reversal of the notice to quit given by her landlord as she is of good character and has paid her rent in full for one calendar year.
The clinic immediately swung into action by conducting further investigation which showed that as regards the first issue of divorce and custody, Yetunde was statutorily married under the Marriage Act and therefore only the High Court had jurisdiction to dissolve the marriage. The clinic gathered that Yetunde did receive the court summons but due to fear of being arrested and detained, she did not attend. However, the customary court went ahead to issue a verdict in her absence and a copy of the judgment was sent to her by post which stated that her husband will have custody of the first three children while she takes care of the baby until his 6th birthday, she is not allowed any access to her daughters and is also barred from going to their school or the locality where they reside. The allegation of adultery was not proven beyond reasonable doubt and a monthly maintenance award of N1,500 (which is equivalently £6) was insufficient to meet the baby’s needs, neither had she received any in the last three months.
The clinic first attempted to mediate between Yetunde and her husband although this proved problematic. Though he ignored the letter of invitation twice, he however honoured the third letter but still maintained his initial stand of upholding the divorce and adding that he has now re-married and his new wife just had baby boy. He also informed the clinic never to write anymore letters.
The clinic needs to institute an action in the High court to declare that the customary court has no jurisdiction over statutory marriages and, to file for custody and maintenance for all her children and herself. However, law students in Nigeria have no rights of appearance in any tribunal or court, the clinic is finding it difficult to find a pro bono lawyer within reasonable time who will take up the case and there is also slow progress in finding a suitable agency to refer a case of this nature.
As regards, the second issue on her tenancy, the clinic confirmed that being a yearly tenant, Yetunde is entitled to six clear calendar months notice. However, the notice to quit is three days less than the required six months which makes the notice of ineffective. Despite writing to the landlord to explain this legal requirement, he went ahead to re-issue a seven days notice of owners intention to recover possession of his property at the expiration of the notice.
The clinic needs to institute an action with the rent tribunal in order to get an injunction restraining the landlord from recovering possession. However, as there are no student practice rules in Nigeria, students have no right of appearance in any tribunal or court. The clinic was unable to find a pro bono lawyer who will take up the case within the seven day time frame. The landlord employed the use of bailiffs to recover possession at the expiration of the seven days notice. Yetunde was assaulted in the process and is disappointed that the clinic could not do anything to stop the landlord from throwing out her stuff.
Cases such as this are rarely concluded as the client looses interest in the case and seldom shows up afterwards. This clearly shows an example of some of the cases where the clinic’s hands are tied by the law which restricts law students from appearing in any court or tribunal. It is apparent that students would have learned much more if they had the opportunity to prepare further paper work, file a case in the relevant tribunal or court and represent their clients. The reputation of the clinic is also sometimes at stake as clients find it difficult to understand these legal requirements. For instance, some of the cases before the Women’s Law Clinic are never concluded due to setbacks such as this.
It is the position of this paper that a mere ‘recognition’ of law clinics by the Legal Aid Council and their inclusion in a register as provided by the amended Legal Aid Act 2011is not enough to ensure access to justice. Therefore, it is my recommendation that the way forward for law clinics’ in Nigeria, is to have Student Practice Rules which will give students limited rights of appearance in some courts and tribunals. Nigeria, through networking in a conference like the IJCLE, can learn from other developed jurisdictions where this has produced better equipped law graduates in countries such as here in the UK as well as the US. This willalso ensure access to justice for citizens whilst fulfilling the objective of training law students in the ‘practice’ of law.
It is also my recommendation that there needs to be an increase in the number of law clinics. The present 14 law clinics’ is still a far cry out of over 40 public and private Universities in Nigeria. In order to achieve the desired law reform, many more universities need to embrace clinical legal education. The National Universities Commission as well as the Council for Legal Education in Nigeria should make it mandatory for all universities to have law clinics attached to their law faculties or have other forms of clinical programs such as street law or externships. This would replace the ambiguous NUC drafts benchmarks and minimum academic standards in law of 2005 which prescribed as mandatory the introduction of a community based course in the fourth year LL.B programme.
There also needs to be more student and faculty engagement in this regard as many clinics all over the world emerged through student activism and their demand to participate in roles similar to the ideals and vision of law practice. This can be done through the Law student societies in the universities as well as the student union and the National Students Association.
If all these machineries are put in place, there will an enabling environment as well as a learning opportunity for students whilst ensuring access to justice for the less advantaged Nigerians. I welcome comments from colleagues in other jurisdictions with or without student practice rules to share their experience on how they have overcome some of these challenges.
August 1, 2012 § 1 Comment
(Residents and police try to rescue refugees from an asylum boat being smashed by violent seas against the jagged coastline of Australia’s Christmas Island Photo: AP)
This month disturbing news revealed that 54 people died in an attempt to reach Italy from Libya by boat, one man from Eritrea survived, the rest perished from dehydration in a 15 day ordeal.
This blog aims to provide a legal and realistic narrative of the reasons why deaths at sea continue to occur and who is to be held accountable.
A Personal Account
Before I begin this blog, I want to draw attention to a story I came across during my reading. It is written by a Somali woman who was smuggled into Europe. Her personal account exposes some of the realities of smuggling and the dangers people face in escaping persecution.
“I remember living a medium life. Me, my husband and eight children. I remember my baby calling, “Mama, mama”. Quite normal.… But the war breaks. We fled. Far away to south Somalia….Two months on. Everything’s out of hand. We run away from the civil war. Me, my husband and eight children.… And we go from Somalia by boat towards Kenya. But suddenly the boat is sinking. The boat is overloaded…. The boat broke. Water breaking into us…. I can’t swim. The boat sinks. Who will rescue us?…. 200 people are dying, drowning. I’m losing my family to the sea. Five of my daughters are lost…. And my eldest son, he’s just begun his life, he’s finished university. He’s lost. That makes six of my children. Dead in the sea, in one day.… Suddenly, an Italian tourist boat is passing.… people come to rescue us. They grab my baby, who I’m holding. And another child of mine…. All the time my baby’s calling “Mama, mama.” Suddenly, I am hauled into the boat like a baby myself…. I am crying. My whole body. Crying.… Do you hear me?… I cannot forget that day. Although I’m here before you today, you can’t have imagined the life of one Somali woman.… am breaking my silence. The world should know my life, my baby calling “Mama, mama”. The world should hear this life.” Found in research commissioned by the Information Centre about Asylum and Refugees in the UK (ICAR) at http://www.icar.org.uk/somalicommunityreport.pdf
The Factual Reality
Though the above stories are horrendous, it’s a narrative that continues to take place as persecuted individuals continue to employ criminal smugglers in attempts to find sanctuary within Europe. Figures from UNHCR show that since the 31st of January 2012 over 500 irregular migrants and refugees died attempting to cross the Mediterranean sea. Sadly, this figure is also likely to be higher as not all deaths are recorded (throwing dead bodies overboard is common) and death records are only accounted for in tales from survivors or through enquiries from family members looking for missing persons. Unfortunately the majority of people smuggled into the UK and Europe are those seeking refuge from conflict ridden countries.
The stark reality is that despite the right to ‘seek and to enjoy in other countries asylum from persecution’ as enshrined by Article 14 of the Universal Declaration of Human Rights (UDHR), when conflicts erupt or it is likely that there will be an influx of people from a particular country, the UK government introduces stringent visa requirements and this is paralleled throughout Europe.
This can be seen in the UK Border Agency’s (UKBA) current list of countries requiring visa entry for the UK, which includes many refugee producing countries. Unfortunately given the nature of refugees, (in that most come from politically unstable countries) seeking visas from British embassies within their own countries is often impossible. Currently included on the UKBA’s list is Somalia, yet Somali’s cannot obtain passports, let alone British visas and UNHCR recently reported that a boat was still at sea carrying 50 Somali and Eritrean people attempting to reach Italy. Other countries such as Iran and China are also listed, yet within these countries the State is the persecutor from whom people seek to escape, therefore obtaining travel documents or visas can be dangerous to the applicant or the family they leave behind.
Consequently, legal entry, for the majority of asylum seekers, is unfeasible: in essence the worse the situation in the country of origin, the more difficult it is to gain entry to the UK or Europe. As a result of this, the activities of criminal smugglers have prospered and human rights abuses have increased. Amnesty International estimates that every year, four million people are trafficked or smuggled across international borders- the value of this criminal trade is estimated at approximately $US10 billion per year.
Illegal entry and the rising death toll can be addressed as a three- fold problem:
-the first (as cited above) is due to visa requirements for entrants from refugee producing countries;
-the second is the failure of the UK government and other European States to provide sufficient resettlement programs;
-and thirdly the increased security of Europe’s external borders forces asylum seekers to find ever more complex and dangerous methods of entry.
In 2004 the UK government, in partnership with UNHCR, set up a refugee resettlement scheme (under Section 59 of the Nationality, Immigration and Asylum Act) which provides 500 resettlement places to those refugees most in need throughout the world, this has since been increased to 750 places.
Currently sixteen European countries provide resettlement to refugees, yet they only provide 8% of global resettlement places. 90% of places are provided by the three top resettlement countries: the United States, Australia and Canada. Recently the European Union adopted the EU resettlement program, which intends to co-ordinate, harmonize and increase the number of resettlement places offered throughout Europe. However the number of resettlement places has not increased in parallel with the number of countries needing the resettlement of citizens. UNHCR estimates that 800,000 refugees are in need of resettlement places each year, far more than the places available, the result being that only one in ten refugees in need of resettlement will secure protection through the programs.
Border Control and Smuggling
As discussed, illegal entry is often the only resort of those who wish to escape their country and find refuge. In attempting to do so, asylum seekers commonly employ criminal smugglers to smuggle them across the borders to a new life. This often involves extortionate amounts of money and the sacrifice of safety, putting individuals and families at the mercy of criminal smugglers. Contrary to popular opinion, the poorest members of societies within these conflict ridden countries often can’t afford to pay people smugglers, thus the majority of asylum seekers who reach the UK or Europe in this way come from wealthier backgrounds. Often individuals pay for the journey with their life savings, their family’s life savings or community contributions, and in some instances it can cost them their lives. Causes of death can be due to a number of circumstances such as: extreme weather; unseaworthy boats; beatings from smugglers; drowning; starvation; dehydration; suffocation and in some cases suicide out of desperation.
The increase in European and UK border control makes entering Europe progressively difficult, the visa restrictions and increased security has gained media attention as “Fortress Europe” which propels smugglers further in finding extreme methods of trafficking people across the borders.
Within the Schengen area of Europe external borders in terms of sea, land and air, are guarded by Frontex who employ a border surveillance system and European Border Guard Teams, whose mission is to reduce the number of irregular migrants entering the country. The UK has its own border agency the UKBA who employ over 23,500 staff in protecting the UK’s borders.
There is a legal framework for people crossing the borders by boat which divides responsibility between Shipmasters, and State parties:
Two Conventions: The 1982 United Nations Convention on the Law of the Sea and the 1974 International Convention for the Safety of Life at Sea (SOLAS) place the Shipmaster under an obligation to assist those in distress at sea, regardless of any circumstances such as nationality etc.
In terms of State parties, several international conventions obligate them to ensure appropriate rescue arrangements for distress calls received within their area of responsibility. These include:
– 1982 United Nations Convention on the Law of the Sea, Article 98(2) (UNCLOS)
– 1974 International Convention for Safety of Life at Sea, Chapter V, Regulation 7 (SOLAS)
– 1979 International Convention on Maritime Search and Rescue, Chapters 2.1.10 and 1.3.2 (SAR)
The State must aim to relieve the Shipmasters of responsibility by arranging disembarkation of those rescued as soon as possible. The State responsible for those rescued depends on the SAR region in which the survivors were recovered, the State responsible must provide a place of safety for survivors. Disembarkation should not be delayed for procedures such as screening or status assessment. (Guidelines on Treatment of Persons Rescued at Sea – Resolution MSC 167(78).
For further information see the following guidelines: http://www.marisec.org/rescueatsea.pdf
International Refugee Law
Though there is a right for individuals to seek asylum, as enshrined by Article 14 of the UDHR, there is no corresponding obligation upon States to grant asylum. The word ‘receive’ was removed from the UDHR on the premise that member State’s should retain their sovereignty in being able to decide who could enter their territory. Therefore international refugee and human rights law does not offer any concrete protection for refugees until they enter the territory in which they seek refuge. As a result, the onus is on the refugee themselves to escape persecution.
As a consequence of this, States are able to introduce stringent visa measures for refugee producing countries. The reasons behind this are obvious in that no member State wants an influx of asylum seekers from a particular country. Once this occurs within Europe the first member State to receive applicants remains responsible for those individuals in processing their application and offering them refuge (via the Dublin Regulation – which is why Italy’s refugee system is under intense pressure). The politics of the situation seems like a playground quarrel and ultimately that’s what it is, clearly if all member State’s removed visa restrictions, some of the barriers for entry would be removed, but there is no legal requirement to do this and therefore it is unlikely this will ever happen.
As can be seen the protection for those residing in conflict ridden countries is relatively weak, however once applicants reach the State in which they seek sanctuary, Article 33 of the International Convention on the Status of Refugees (‘Geneva Convention’) becomes active. Article 33 is the right to ‘non-refoulement’ which means that once an applicant is under a State’s jurisdiction they cannot be returned to a territory ‘where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.‘ Consequently State’s must process an individual’s asylum claim before returning them to their country of origin. If they satisfy the member State’s requirements for refugee status they will be allowed to remain.
Article 33 of the Geneva Convention is seen to be ‘the cornerstone’ of refugee protection. Read in conjunction with Article 14 of the UDHR it offers significant protection to those who manage to escape their country and reach sanctuary. International maritime law also aims to protect those who take to the seas in seeking safety. But that protection only starts once people start their journey, and as shown above, even with that protection people continue to lose their lives.
As discussed there are many barriers for asylum seekers in reaching sanctuary. With no legal framework of absolute responsibility for member States to offer resettlement, or to remove visa requirements, the onus of responsibility for the safety of refugees realistically remains upon themselves. Though their countries of origin are ultimately responsible, in the real world safety does not become apparent until refugees start their perilous journey to sanctuary.
– Katie Bales