Doping In Nigerian Sports: The Way Foward | Omole Damilare Fisayo

Doping In Nigerian Sports: The Way Foward | Omole Damilare Fisayo

Introduction

On the 4th of July 2021, The captain of the acclaimed biggest Nigerian professional football league (NPFL) club : Eyinmba united, Oladapo Augustine, got slapped with a one year ban for the use of a prohibited substance known as Prednisolone/Prednisone”. This was as a result of a test carried out on the player after his club CAF confederations league encounter against pyramids FC of Egypt. [1]

Also, in the buildup to the Tokyo 2020 Olympic games, 10 Nigerian athletes were declared ineligible to participate in the Tournament due to failure of a specific anti doping tests neccesitated by WADA which were not performed by the AFN. Those, being just a few of the several occasions that Nigerian athletes have been disqualified or stripped of their medals in various events due to their failure of anti doping tests despite the different  measures taken by different sport regulating bodies to ensure strict compliance to the the rules of no doping.

Recently, one of Nigerian’s most decorated athlete, Blessing Okagbare,  was banned from taking part in the semi finals of the Tokyo Olympics 100m race after it was found out that she had used a growth hormone in an out of competition test conducted earlier.

This article will attempt to perform an analysis of doping in Nigerian Sports, its possible  effect on Nigerian Sports, causes  and possible ways of ending this menace.

Doping : Definition and History.

According to Wikipedia, Doping is the use of banned athletic performance-enhancing drugs by athletic competitors[2]. The term is commonly used by organizations that regulate sporting competitions. FIFA defines it as a situation whereby players take “prohibited” substances to boost their performances. Prohibited substances in this context would mean steroids, cocaine, amphetamines or any substance that is on the World anti-doping agency (WADA) prohibited list.[3]

The International Olympic Committee (IOC) defines doping as “the intentional or unintentional use of prohibited substances and prohibited methods on the current doping list”.[4]

It will be interesting to note that even the use of  natural supplements if found to contain such substances can constitute serious punishments for the player.

Doping is as early as the history of sport itself,  Charles E. Yesalis states that :

“When humans compete against one another, either in war, in business, or in sport, the competitors, by definition, seek to achieve an advantage over their opponent. Frequently they use drugs and other substances to gain the upper hand. “[5]

The ancient Olympics in Greece had numerous forms of doping as athletes drank different herbal mixtures to gain more strength and give them more energy before chariot races. The prevalent use of drugs in sports possibly came due to the realization that athletes could achieve more using performance enhancing drugs than what is obtainable through hard work and rigorous training. It is also important to note that modern doping  started after the world war when athletes began taking amphetamines to enhance their performances[6].

Hans-Gunnar Liljenwall, a Norwegian was the first Olympic athlete disqualified for doping. This was as a result of alcohol intake during the 1968 summer Mexico Olympics pentathlon. He was stripped of his medals and banned thereafter.[7] Russia was also recently banned  from international sporting events  for four years after they were found quilty of state sponsored doping by the world anti doping agency (WADA). Athletes will not be able to compete under the Russian flag in future competitions unless they do so under a neutral flag

Laws and regulations on anti doping.

Doping however is a phenomenon that should not be encouraged by anybody and any society as it violates the principles of fairness and healthy competition and also gives some athletes undue advantage over others and provides an unleveled playing ground for athletes. This exactly is what gave birth to the formation of the World anti doping agency(WADA).

World Anti Doping Agency(WADA) is the world body charged with the coordination of all anti doping activities at the international level. It conducts testings for all sports ranging from track and field competitions to ball games. It was established in 1999 and it’s activities are usually governed by a code known as the World Anti Doping Code.(WADC).

WADC is usually amended to ensure dynamism and to meet up with the growing development of pharmaceutical research in the world. It was launched in 2003 with the latest edition of WADC being that of 2021.

Article 1 of WADC specifically defines doping as the ” occurrence of one or more of the antidoping rule violations set forth in Article 2.1 through Article 2.11 of the Code.”[8]

This is followed up by Article 2 which corroborated what was laid out in article 1 by stating all the possible violations of the anti doping code and act that are punishable under the WADC by athletes. These includes :

* Presence of a Prohibited Substance or its Metabolites or Markers in an Athlete’s Sample.

* Use or Attempted Use by an athlete of a Prohibited substance or a prohibited method.

* Evading, Refusing or Failing to Submit to Sample collection by an Athlete.

* Whereabouts Failures by an Athlete.

* Tampering or Attempted Tampering with any Part of  Doping Control by an Athlete or Other Person.

*Trafficking or Attempted Trafficking in any Prohibited  Substance or Prohibited Method by an Athlete or Other Persons.

* Administration or Attempted Administration by an Athlete or other Person to any Athlete In-Competition of any Prohibited Substance or Prohibited Method, or Administration or Attempted Administration to any athlete Out-of-Competition of any Prohibited Substance or any Prohibited Method that is Prohibited Out-of-Competition.

* Complicity or Attempted Complicity by an Athlete or Other Person.

* Prohibited Association by an Athlete or Other Person.

* Acts by an Athlete or Other Person to Discourage or Retaliate Against Reporting to Authorities.

Article 3, 4 and 5 all speak about proof of doping, the WADA prohibited list which contains the list of all prohibited substances for sporting competitions and the process of investigation respectively.

Articles 9,10 and 11 give more insight to sanctions for these offences varying from bans and disqualification to removal of medals, see WADC 2021.[9]

 

Causes, Effects and Solutions.

Doping in Nigerian sport is not taken seriously due to the status of the country as a developing country. Anti doping laws are broken with impunity since there is no legal framework to punish offenders. This is not a favorable outlook for our national sports as  the main basis on which sporting activities was founded upon will be destroyed. Hardwork and rigorous training to keep fit for competitions will be eliminated as athletes will end up using unethical methods to win.

Also when athletes are not properly checked for doping activities, they can cause themselves and their countries embarrassment if they eventually get caught by the anti doping agency regulating that competition. A good example of this is Lance Armstrong, A Former tour de France winner who got stripped of all his titles after he was found out to be using performance enhancing drugs to compete.

Furthermore, the  health consequences of this act are not to be overlooked as there is high tendency for athletes to suffer hallucinations during and after games and in some instances death. An example is The death of Tom Simpson whose use of performance enhancing drugs pushed him into an overworked and dehydrated state and subsequently led to his death. Also despite it not being a direct cause of his death, drug abuse and doping might have been a cause of the death of late Soccer great Diego Maradona.

In order to check this growing menace in Nigerian sports it is imperative that a proper anti- doping agency should be created to handle all doping matters at local level. Also the need for awareness about doping and its consequences should be done because a lot of Nigerians lack basic knowledge about what constitutes doping and consequentially commit these offences in ignorance. for example the use of “paracetamol” before a sporting event by an athlete or player would be considered doping in saner climes. There should be proper education for athletes about the dangers of doping both to their physical and emotional wellbeing. NUGA, HIFI and other tertiary institution games organizers should employ the used of different methods of doping with serious punishments attached to those caught.

CONCLUSION

Nigeria as a country still has a long way to go concerning its anti doping regulations, however if the solutions outlined in this paper are duly followed, it will save the country a lot of embarrassment in international competitions such as the Olympics and FIFA world cups and also create a level playing ground for all Nigerian athletes. The creation of a functioning anti doping agency will be the first step in ensuring drug free competitions for Nigerian athletes nationally and internationally.

Omole damilare fisayo is a 200lvl law student of the faculty of law Adekunle Ajasin University Akungba Akoko Ondo state and a sport law enthusiast. He can be reached via

+2349020837174 or Omoledamilare093@gmail.com.

 

 

 

 

[1] Caf slams one year doping ban on eyimnba captain vanguardngr.com, July 27 2021

[2] Www.Wikipedia org, doping in sport.

[3]Anti doping- FIFA, https://www.fifa.com › legal › anti-d…

[4] Doping in football. Www.Goal.Com.

[5] History of doping in sport, Charles. E. Yesalis p 1

[6] Regulating doping in Nigerian sports, Ezza chigozie jude (LL. B (Hons),

[7] Doping in sport www.Wikipedia.org

[8] World anti doping code article 1

 

[9]  Part one World anti doping code 2021

Broadcast Rights In Football

Broadcast Rights In Football

 

When the whistle is blown, and the ball is kicked, fans cheer and the stadium erupts with loud noises, as the games kicks on. The voices of your favourite commentators – Peter Drury, Sid Lowe, etc., serenade your mind. The matches are shown all around the world, and you have the opportunity to watch your favourite team live, and anywhere.

However, key to the transmission of these live matches is what is known as Broadcast Rights. This is when one party permits the other party (in this case a Broadcast channel, or medium) the right to broadcast its games. Broadcast rights is a huge means of income for football clubs, driving the interest in football to an increased level. In essence, complexities arise with broadcast rights matters as the major players will always want to protect their interest. Broadcast rights are usually sold by those who acquire the rights from the main owners, to other continental “retailers”. For example, the Premier League sold rights to BT Sports and SkySports to service the UK; whilst selling to SuperSport to serve Africa; and then to BeinSports to serve the Middle East.

 

2 types of Broadcast Rights

  1. Collective Rights

Collective broadcast rights are in situations whereby individual clubs allow a central body bargain, or negotiate broadcast right deals with broadcast companies. This system has been in place in the Premier League for many seasons. Thus, while clubs own their individual broadcast rights, the Premier League, negotiates with broadcast companies on their behalf, in a bid to strike favourable agreements.

Currently, the Premier League has its domestic rights being shared amongst Sky and BT (both of whom are its major broadcasters), as well as Amazon (although the number of matches available are limited).

Amongst the reasons why clubs would opt for the Collective rights include:

  • It increases the league’s (and to a very large extent, the clubs’) bargaining power, especially when the league is well watched and has huge following.
  • Clubs do not have to go through the stress of individually negotiating with broadcasters.
  • The sharing formula tends to be equal, as the level of disparities in terms of payment is not usually wide.

On the other hand, clubs would be reluctant to embrace the collective rights because:

  • It reduces the chances of them making enough money – especially the top clubs whose games will be top of the pile for broadcasters.

 

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  1. Individual Rights

Individual broadcast rights are usually seen in situations when clubs directly negotiate with the broadcast channels. This mode used to be in operation in Spain, as Barcelona and Real Madrid enjoyed a lot of income from broadcast revenue. It was stated that when Athletico Madrid won the Spanish la liga in 2014, relegated Premier League side, Cardiff City, made more money than the then Spanish champions.

This however has changed, with the la Liga now accepting the collective broadcast mode, allowing the parent spread across all clubs.

Clubs would be open to the individual rights because:

  • They would be able to negotiate by themselves and would only focus on their own interests;
  • The more of their matches that get shown by the broadcasters, the more money they make.

On the other hand, the reluctance of the clubs would be:

  • Due to the fact that “smaller” clubs cannot negotiate properly, as well as earn as much as top clubs.
  • The level of disparity in terms of payments usually are quite huge, leaving lower clubs at a disadvantage.

 

Broadcast Rights in the Premier League.

The Premier League is described as the most watched league in the world, with its reach spreading far across the world. Thus, the premier league has been able to leverage on this fact to its advantage, thereby having potential rights buyers pay a lot of money to secure these rights.

What is more interesting is the fact that the BBC, over a period of three years (2016-19), paid over 150 million pounds to broadcast highlights of Premier League matches. While international rights for highlights of matches stood at over 2 billion pounds. It is therefore not difficult to understand why Premier League owners are either unwilling to sell their clubs (or majority stake in those clubs), or sack managers who are unable to deliver results.

With the current sharing formula, relegated teams gain excess millions of pounds per season (with 25% of the total payment based on how many of their games are shown live).

It must be noted however that the Covid-19 pandemic brought about what would possibly be described as an “innovation” due to the fact that the Premier League did not want fans at the stadium. Thus it was decided that Premier League games would be spread across various days, as well as making sure there were no simultaneous fixtures. This is a shift from what used to be the norm – with 3 o’clock Saturday fixtures not being shown on TV.

In the Premier League, the distribution model of the monies from broadcast rights includes:

  • 50% of UK broadcast revenue is split equally amongst the 20 clubs;
  • 25% of the UK broadcast revenue is paid in Merit Payments. This means that payment is dependent on where the clubs finish when the league ends.
  • 25% of the UK broadcast revenue is paid in facility fees. This means the payment is dependent on how many times a club’s matches are broadcast in the UK.
  • While all international broadcast revenue and central commercial revenue is split equally amongst the 20 clubs.
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Application of Broadcast Right to Nigeria

In a bid to understand whether the Nigeria Professional Football League (NPFL) makes use of the collective of individual rights, it will be essential to make examine the league’s regulation. Thus, Article 7.1 of the NPFL Rules and Framework states that:

“The LMC shall enter into Commercial Contracts, Broadcasting Contracts and Title Sponsorship Contracts with the intention in the case of each Broadcasting Contract for the live Transmission of League Matches that each Club shall participate in at least one live televised League Match each Season.”

From the above, for broadcast rights to be sold or bought or agreed on, there must be a contractual agreement between both parties. Thus, any broadcast of an NPFL match without the due authorization will be a breach of the NPFL’s copyright as it was not authorized. In other words, the NPFL makes use of the Collective Rights, as the LMC bargains and negotiates with broadcast partners on behalf of the clubs.

 

Importance of Broadcast revenue

The royalties that broadcasters earn from selling their exclusive footage to other media outlets enable them to invest in the costly organizational and technical infrastructure involved in broadcasting sports events to millions of fans all over the world.

Broadcasters’ rights provide the following options:

  • safeguard costly investments in televising sporting events
  • recognize and reward the entrepreneurial efforts of broadcasting organizations
  • recognize and reward their contribution to diffusion of information and culture

Essentially, broadcast right play and essential part in football, as clubs are able to maximize one the ways they make revenue, and can also protect their interests.

Ayomide Eribake is a graduate of law (Second Class Upper Division) from the University of Lagos. Over the last few years, he has developed keen interest in Sports Law, researching and writing on a number of sports law issues which have been published both online and in print.

He has garnered experience in Sports Law, working as a Legal Assistant at Sportlicitors LP, a Sports Law firm in Nigeria. During his time at the firm, he assisted with research, contract reviews and other tasks. He was also involved in creating the firm’s Virtual Internship scheme for law students – which also involved students from foreign countries.

Amongst his legal interests include: Football law, E-Sports, Insurance law and Labour law. During his free time, he enjoys reading, writing, playing football manager and watching football. He’s also a huge Liverpool fan.

 

An Overview Of The Regulatory Framework For Coaches Under The Regulation On The Status And Transfer Of Players |  Ayomide Eribake

An Overview Of The Regulatory Framework For Coaches Under The Regulation On The Status And Transfer Of Players |  Ayomide Eribake

 

The recent managerial sackings and appointments in the Premier League, and across board has had an erstwhile domino effect – with no Norwich City manager, Dean Smith, being appointed weeks after being sacked by Aston Villa; and Rangers having to hire former player, Gio Van Bronckhurst, after former manager, Steven Gerrard, was hired by Aston Villa. However, these terminations and appointments are protected by a new guideline established by football governing body, FIFA.

On December 14, 2020, FIFA announced new changes to the Regulation on the Status and Transfer of Players (RSTP), creating a new regulatory framework for coaches. The new amendment was a welcome development as there wasn’t any regulation governing the contracts of coaches. Thus, just like football players, whose contracts are protected by the Regulation on the Status and Transfer of Players, the contracts of managers have now been protected under the new RSTP. This article seeks to give an overview on the Amendments made to the RSTP as regards the regulatory framework for coaches.

 

Application of the Annexe

To begin with, Annexe 8 of the RSTP provides the essentials regarding the rules for the employment of coaches. The rule applies to two sets of coaches:

  • Those who are paid more than their expenses they incur during their coaching activity; as well as
  • Those under the employment of professional clubs and associations.

This means that in a situation where the coach doesn’t get paid more than the expenses they incur, and they aren’t employed by professional clubs and associations, the Rule will not apply to them. Thus, the distinction is similar to that between amateur and professional players, with the difference being the groups.

 

Validity of Contract

To have a valid professional contract, a number of criteria must be met. Article 2 provides that the contract must be in writing. Additionally, the contract must contain the essential elements of an employment contract (essentialia negotti) which include – the object of the contract, the rights and obligations of the parties, the status and occupation of the parties, the agreed remuneration (which includes bonuses as well – this could include bonuses if the cub achieves any huge feat such as winning a title, avoiding relegation, etc. for example, Westbromich Albion manager, Sam Allardyce, was said to have a seven figure bonus in his contract should the club avoid getting relegated in the 2020/2021 Premier League season). It is also important to note that where an intermediary is involved in the contract negotiation, their names must be in the contract.

Further, the contract is valid, subject to work or residence permit being granted; the coach having a specific coaching licence; as well as requirements of an administrative or regulatory nature.

Termination of contracts

Termination of contracts is an important part of contractual relationships between football clubs and coaches. Thus, Article 3 of the Annexe states that the contracts can only be terminated either by expiration or by mutual agreement.

In December 2020, the FIFA Dispute Resolution Chamber found Australian club, Brisbane Roar, guilty of wrongfully terminating the contract of former manager, Robbie Fowler.  Fowler’s contract was terminated after the club stated that his comments made against the club ruined its reputation globally. The Chamber held that the club had to pay Robbie Fowler and his assistant, Tony Grant, three months of their wages, which was before they were hired by an Indian Super League club.

It is important to note that before the new Annexe, the termination of contracts of managers didn’t have a lot of rules. However, managers usually had agreements with clubs and got pay-outs whenever they were sacked by their former clubs. For example, when Jose Mourinho was sacked by both Manchester United and Chelsea, he received huge pay-outs from both clubs. Also, former Everton and Newcastle United manager, Sam Allardyce also received pay-outs when his contracts were terminated by clubs.

 

Termination of contract with Just Cause

Article 5 of the Annexe provides for termination of contracts where there is just cause. “Just cause” in this situation applies to situations of outstanding contracts. It states that where a club fails to pay the coach’s salary for at least two months on their due dates, the contract will be deemed to have been terminated, as long as the coach has made the club or association aware of the situation in writing, as well as granting at least a 15-day deadline to fulfil its financial obligations.

 

Termination of Contract without Just Cause

According to Article 6 of the Annexe, in all cases, compensation shall be paid by the party that has breached the contract. In terms of calculation of the compensation, it will be calculated thus:

 

The Coach’s Compensation

  1. Where a coach hasn’t signed a new contract and his contract is terminated, the compensation will be equal to the value of the contract that was terminated. For example, where the coach signed a two-year contract, and gets sacked with six months of his contract left, the value of compensation will the value of the six months left.
  2. Where the coach has signed a new contract by the time the decision to terminate the contract has been taken, the value of the new contract which corresponds with the time remaining on the contract that was prematurely terminated shall be deducted from the residual value of the contract that was terminated early – this is called Mitigated Compensation.

 

Compensation due to the Cub or Association

  1. The compensation will be calculated based on the damages and expenses the club or association incurred in connection with the contract termination. Due consideration will be given to the remaining remuneration and salary benefits the coach was due under the contract that was prematurely terminated – which includes the fees and expenses which the former club incurred.

In conclusion, the regulation provided a framework governing the contracts of football coaches, thereby giving them proper protection, and making sure their rights are better protected. Unlike the days before the creation of the regulation, the regulation makes sure to cover the field in terms of the validity of contracts, as well as termination of contracts. The only spanner in the works that might appear will be the fact that this regulation cannot be enforced by local coaches in Nigeria –due to the fact that should disputes arise, they have to be international in nature for FIFA to have Jurisdiction, and the NFF is yet to constitute a National Dispute Resolution Chamber (NDRC).

 

Ayomide Eribake is a graduate of law (Second Class Upper Division) from the University of Lagos. Over the last few years, he has developed keen interest in Sports Law, researching and writing on a number of sports law issues which have been published both online and in print.

He has garnered experience in Sports Law, working as a Legal Assistant at Sportlicitors LP, a Sports Law firm in Nigeria. During his time at the firm, he assisted with research, contract reviews and other tasks. He was also involved in creating the firm’s Virtual Internship scheme for law students – which also involved students from foreign countries.

Amongst his legal interests include: Football law, E-Sports, Insurance law and Labour law. During his free time, he enjoys reading, writing, playing football manager and watching football. He’s also a huge Liverpool fan.

 

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Five Legal Issues To Consider Before Securing Venture Capital | Omoruyi Osagie Edoigiawerie Esq ACIArb (UK)

Five Legal Issues To Consider Before Securing Venture Capital | Omoruyi Osagie Edoigiawerie Esq ACIArb (UK)

 

Money is the lifeline of any business, without funding is it practically impossible to expand or even grow your business. Oftentimes Entrepreneurs seek venture capital or external investment from angel investors.

Many times these startups assume that all they need is a disruptive business concept and a clear path to growth. But this isn’t always the case,. Below we explore five of the most important legal issues that professional investors are likely to review in a standard due diligence process before deciding to make an investment in an early-stage company.

  1. Corporate Governance

Whether your company is a corporation, limited liability company (LLC) or partnership, when seeking investment, you should ensure the following:

  1. the basic governance structure is finalized and agreed to by all stakeholders;
  2. the organizational documents are adequate and complete;
  3. all agreements of the board of directors/managers or shareholder actions are properly reflected in the minutes;
  4. Additionally, the company should be treated as a separate entity (and not as the alter ego of the founders or of another business);
  5. and the equity records of the company should be complete.

Upon deciding whether to make a venture investment, an investor will likely request a review of these organizational documents to gain a better perspective of the actions the company has taken in the past. One of the most common mistake startup companies make is that they fail to address properly ownership and measure of equity owned which leads to avoidable problems. This can be avoided by seeking legal counsel at the onset to ensure that it is done correctly.

 

  1. Shareholder Agreement

The easiest way to make clear what all of the equity holders’ rights are in a company is to have a shareholders’ agreement. Some of the pivotal provisions of this agreement include:

  1. Voting arrangements,
  2. restrictions on share transfer,
  3. “tag and drag” rights in the event of a sale,
  4. anti-dilution provisions and
  5. rights of first offer or refusal.

In my experience, many startups discuss these issues verbally some even prepare drafts but never get to the signing stage and this leads to uncertainty for subsequent investors in the company and what rights all parties involved have. The absence of a final and signed shareholders’ agreement may also allow certain equity holders to block a potential venture investment and to hold the transaction hostage unless they are given preferential rights.

  1. Intellectual Property

If your company is centered around or built upon its intellectual property, then it is essential that there is no confusion about the ownership of intellectual property associated with the company. An investor will expect to see signed intellectual property assignment agreements, assigning any potential ownership rights or claims to the company. Furthermore, depending on the nature of your intellectual property, it is essential that you conduct proper due diligence to confirm that you are not infringing on third-party intellectual property right.

 

  1. Written Contracts

Although an agreement does not have to be in writing to be enforceable, it a good idea to ensure that all of your material agreements are in writing, contain all important terms, and are properly signed by all parties.  The kinds of agreements that should be in writing include:

  1. vendor and supply agreements,
  2. customer agreements,
  3. warranty and guaranty terms and
  4. employment agreements

Prior to making an investment, an investor will likely request to review your material contracts to gain a clearer picture of your business’ obligations.

One key thing you must note is that, when negotiating a written contract, some third parties will include certain provisions within the contract, including indemnification, non-compete, license, and limitation of liability provisions which may impact negatively on your company, so be on the lookout for these provisions because they eventually become an issue during investor due diligence and may adversely affect your company’s value to a potential investor. As always, make it a point of duty to get legal help before you sign a contract.

  1. Understanding the Regulatory Issues relating to your business


Maneuvering the regulatory landscape relating to your business is a must. For example, if your business is in the tech space, you must ensure it is in tune with data privacy laws of the country of Origin and adheres to regulatory provisions. Before making an investment, investors will want to ensure that your business plan is not endangered due to regulatory concerns. It is essential that you see legal counsel to help you identify any potential regulatory issues and to confirm that such regulatory issues where they exist will not adversely impact your business model.

 

About the writer:

Omoruyi Edoigiawerie is a Legal Practitioner and Lead Partner at the Law firm of Edoigiawerie and Company LP – a full service law firm with depth of proven experience and expertise in corporate commercial transactions and a strong bias for Startup and Entrepreneurship Law.

He is a member of the Nigerian and American Bar Associations as well as several professional bodies.

Omoruyi is the brain behind the UyiDLaw brand where he shares very insightful Legal nuggets (UyisNuggets) to help businesses grow and thrive. Through his platforms,  he provides mentorship and business linkage support.

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Plea Bargain: A Veritable Tool For Prisons Decongestion  – Edeh Samuel Chukwuemeka

Plea Bargain: A Veritable Tool For Prisons Decongestion  – Edeh Samuel Chukwuemeka

 

INTRODUCTION

With population growth and the attendant civilization, new ways of criminal machinations keep emerging. It would therefore, not be incorrect to say that crimes and criminality are on the increase. Our courts, and in general the criminal administration system are overwhelmed by the plethora of criminal cases that grace their floors on a daily basis. Consequently, our prisons are congested with number of inmates, with many awaiting trial.

Based on a 2016 data, Lagos State has the highest number of prison inmates’ population. The state recorded 7,396 prison inmates population as against a prison capacity of 3,927, closely followed by Rivers and Kano States with 4,424 and 4,183 prison inmates population. It was also reported that the Kirikiri Prisons in Lagos, which was built to accommodate 1,700 inmates, had 3,553 as of June 2017, over-shooting its capacity by 1,853 inmates. The Nigerian Prisons Service (NPS) Controller-General, Ahmed Ja’afaru, bemoaning the situation said that a total of 68,250 people were behind bars in Nigeria. However, only 32 per cent (or 21,903) of the inmates had been convicted. This means 46,351 people (or 68 per cent), who are awaiting trial put the system under avoidable stress.

Recently, Lagos State Government has activated moves to considerably bring down the number of inmates awaiting trial in prisons across the State through the implementation of the plea bargain aspect of the Administration of Criminal Justice Law 2011 (ACJL).The purpose of this paper is to discuss the concept of plea bargaining as a veritable tool in the administration of criminal justice in Nigeria.

 

MEANING OF PLEA BARGAINING

A plea is the response that a person accused of a crime gives to the court when the offence with which he is charged and which is contained in the charge sheet or information is read to him by the court. In general, the accused person could plead guilty or not guilty to the crimes. Where the court takes his plea and the court after trial is satisfied that the prosecution has proved his case beyond reasonable doubt, the court would proceed to sentence the accused person accordingly. On the other hand, plea bargain means a negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offence or to one of the multiple charges in exchange for some concession by the prosecutor; usually a more lenient sentence or a dismissal of the other charges. Section 494 of the Administration of Criminal Justice Act 2015 defines plea bargain as;

The process in criminal proceedings whereby the defendant and the prosecution work out a mutually acceptable disposition of the case; including the plea of the defendant to a lesser offence than that charged in the complaints or information and in conformity with other conditions imposed by the prosecution, in return for a lighter sentence than that for the higher charge subject to the Court’s approval.

In simple terms, it is an agreement in criminal trials between the prosecutor and the accused person to settle the case in exchange for concessions. It could take the form of a Charge Bargain, Count Bargain or Sentence Bargain.

 

PROCEDURE OF PLEA BARGAINING; A CUE FROM LAGOS STATE

Generally, criminal procedure encompasses the laws and rules governing the mechanisms under which crimes are investigated, prosecuted, adjudicated, and punished. In other words, it is a manual of events that apply from the apprehension, trial and punishment of an accused.

The duration of criminal procedure coupled with the poor performance of the institutions in the criminal justice system in Nigeria has led to dawdling of criminal investigations and trials. The effect of this is that many suspects are arrested and detained without trial while some others are incarcerated for a long period of time due to the slow pace of criminal investigation or trial in Nigeria.

The nature of plea bargain can go a long way in decongesting prisons in Nigeria and foster a democratic system. This is because its procedure is quick as it allows parties involved including the victim to reach an agreement without going through the rigors of criminal trial. Commendably in Lagos state, the plea bargaining agreement is provided for under ACJL and has no limitation to any offence or to any person. Thus, a prosecutor can reach an agreement with an accused person wherein he will be given a reduced sentence, count or charge.

Under the ACJL, the prosecutor may only enter into plea bargaining agreement after consultation with the police officer responsible for the investigation of the case and the victim if reasonably feasible; and with due regard to the nature of and circumstances relating to the offence, the defendant and the interest of the community.

When the agreement is in progress, the prosecutor if reasonably feasible shall afford the complainant or his representative the opportunity to make representations to the prosecutor regarding.

  1. The contents of the agreement; and
  2. The inclusion in the agreement of a computation or restitution order.

 

Where a plea agreement is reached, the prosecutor shall inform the court of the agreement and the judge or magistrate shall inquire from the defendant to confirm the correctness of the agreement. If the answer is in the affirmative, the presiding judge or magistrate shall ascertain whether the defendant admits the allegations in the charge to which he has pleaded guilty and whether he entered into the agreement voluntarily and without undue influence. The court after satisfying itself on all of the foregoing will do one of the following:

  1. Convict the defendant on his plea of guilty to the offence as stated in the charge and agreement
  2. If not satisfied, the court will enter a plea of not guilty and order that the trial proceed.

Significantly, the presiding judge or magistrate before whom criminal proceedings are pending shall not participate in the plea bargaining agreement. However he can give relevant advice to them regarding possible advantages of discussions, possible sentencing options or the acceptability of a proposed agreement.¹³ But in sentencing the defendant after the conviction, the judge or magistrate is to consider the sentences agreed upon in the plea agreement. If the sentence is considered appropriate, then the agreed sentence would be imposed on the defendant. However if the court decides that the defendant deserves a heavier sentence, the defendant shall be informed. Upon the defendant being informed, the defendant has two options. One, the defendant can abide by his plea of guilty as agreed upon and agree that subject to the defendant’s right to lead evidence and to present arguments relevant to sentencing, the presiding judge or magistrate proceed with the sentencing. The second one is that he withdraws from his plea agreement in which event the trial shall proceed de novo before another presiding judge or magistrate. Where the trial proceeds de novo before another presiding judge or magistrate, the following must be observed

  1. No reference shall be made to the agreement
  2. No admissions contained therein or statements relating thereto shall be admissible against the defendant; and
  3. The prosecutor and the defendant may not enter into similar plea and sentence agreement.

 

ESSENTIAL INGREDIENTS THAT MUST BE PRESENT IN A PLEA BARGAIN AGREEMENT

A plea bargaining agreement must contain the following:

  1. The agreement must be in writing and contain the following specifics or state
  2. That the defendant has been informed that he has a right to remain silent;
  3. Also he has been informed of the consequences of not remaining silent

iii. That he is not obliged to make any confession or admission that could be used in evidence against him

  1. The full terms of the agreement and any admission made must be stated; and
  2. The agreement must be signed by the prosecutor, the defendant, the legal practitioner and the interpreter (if used).

 

CONCLUSION

Plea bargain has over time been recognised as the most useful means of quick disposal of criminal trials in our criminal justice.They include the fact that the accused can avoid the time and cost of defending himself, the risk of a harsher punishment, and partially eliminate the publicity the trial will involve. It also saves the prosecution time and expense of a lengthy trial, and both parties are spared the uncertainty of going to trial. Ultimately, the court is saved the burden of conducting a trial on every crime charged.

Those against the concept have rightly argued that it could be prone to abuse if not well regulated. For instance, in the case of the defunct Oceanic Bank Managing Director, Mrs Cecilia Ibru, who was accused of stealing over N190 billion. She entered a plea bargain with the EFCC. She was convicted on 25 counts of fraud, ordered to refund only N1.29 billion and sentences to six months imprisonment part of which she allegedly spent in a Highbrow Hospital. This has been seen by many as a mere “slap on the wrist”.

It is our view that despite the inherent fears and reservations some people may nurture with the proposal by the Lagos state government to utilize plea bargain, there is no doubt that the desirability of plea bargain in prison decongestion out-ways its undesirability, thus other states in Nigeria should adopt similar approach. However, that is not to play down the need to take necessary stringent measures to prevent abuse of the process by prosecutors.

Finally, the ultimate card lies with the judiciary as the law allows them to consider sentence agreed upon and accept or refuse such sentence where necessary. Thus, judges and Magistrates should be more proactive and take all necessary steps to curb any attempt to abuse plea bargaining.

 

References:

Prison Statistics: Prison Population by Total Detainees, Prison Capacity and Number of Un-sentenced Detainees by State and Year and Prison Inmate Population by Gender 2011-2016

 

<https//www.proshareng.com/admin/upload/reports/10669-NBSPRISONFULLREPORT201120 16-proshare.pdf> accessed 14 June 2019.

 

<https://bscholarly.com/a-day-in-the-life-of-a-lawyer-daily-tasks-lawyers-go-through/> accessed 14 June 2020.

 

<https://bscholarly.com/why-is-democracy-the-best-form-of-government/> accessed 14 June 2021.

 

Prison Congestion: Acting on Buhari’ <https://punchng.com/prison-congestion-acting-on-buharis-alarm/> accessed 14 June 2019.

 

Ibid.

 

O Olayanju, ‘The Relevance of Plea Bargaining in the Administration of Justice System in Nigeria’ [December 2011/January 2012] (VIII) (2&3) LASU Law Journal 35

 

<http://www.lasu.edu.ng/publications/law/oluseyi_olayanju_ja_1.pdf> accessed 14 June 2019.

 

B Garner, Blacks Law Dictionary (8ᵗʰ Edition, USA: West Publishing Company 2004) 1190.

 

ACJL, s 76(2) (a) & (b).

 

The prosecutor for the purpose of the foregoing provisions (s. 75 & 76) means a LAW OFFICER; see ACJL, s 76(11).

 

ACJL, s 76(3).

 

ACJL, s 76(6).

 

ACJL, s 76(7).

 

ACJL, s 76(7) (a) & (b).

 

ACJL, Section 76(5). ¹⁴ACJL, Section 76(8) (a) . ¹⁵ACJL, Section 76(8) (c).

 

ACJL Section 76(9) (a) & (b).

 

ACJL, Section 76 (10) (a)-(c).

 

ACJL, Section 76(4).

 

FRN v Lucky Igbinedion [2014] LPELR – 22760 (CA), Justice Helen Ogunwumiju listed the advantages of plea bargains.

 

ACJL, s 76(8); ACJL, s 367(9).

 

Edeh Samuel Chukwuemeka

University of Nigeria, Nsukka (400L)

samueledeh04@gmail.com

#NBAAGC2021: Huge Books Sales For Lawyers On The Legalnaija Online Bookstore

#NBAAGC2021: Huge Books Sales For Lawyers On The Legalnaija Online Bookstore

The Legalnaija online bookstore is offering mouth watery deals on law books for the duration of the NBA Conference. The online bookstore is the first of its kind dedicated to the legal profession, and it curates some of the most recent publications on diverse areas of law and jurisprudence.

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  1. A Force of Justice (A collection of law articles published in honour of Hon. Justice Oguntade JSC Rtd)

 

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  1. Casebook On Data Protection by Olumide Babalola

 

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  1. International Arbitration Law And Practice: The Practitioners Perspective by Tolu Aderemi

 

  1. Journal Of Current Law And Arbitration Practice (Vol 1, No.2)

 

  1. New Developments In Law And Practice In Nigeria (Essays In Honour Of Dele Adesina SAN)

 

  1. Rights Of Suspects And Accused Persons Under Nigerian Criminal Law by Frank Agbedo

 

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  1. The Employment Law Handbook by Jamiu Akolade

 

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#NBAAGC2021 Session: A Conversation On Gender Balance & Equality

#NBAAGC2021 Session: A Conversation On Gender Balance & Equality

 

Gender balance means human resources and equal participation of women and men in all areas of work, projects or programmes.

According to Bloomberg, recent research from the World Economic Forum indicates it will take 202 years for women to achieve economic gender parity. Despite progress and positive trends overall, the gap in economic opportunity between genders remains the disparity that will take the longest to close completely.

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For lawyers in Nigeria, this is a big issue and always been the topic in different legal fora, especially by Nigerian lawyers, and even non-lawyers as well. Likewise this is going to be a huge topic at the upcoming NBA Conference starting on Friday, 22nd October, 2021.

All lawyers are allowed to encouraged to participate in the session on Tuesday, 26th October, 2021.

#NBAAGC2021 Session: The Future Of Dispute Resolution

#NBAAGC2021 Session: The Future Of Dispute Resolution

 

According to a Harvard paper, dispute resolution is the process of resolving a dispute or a conflict by meeting at least some of each side’s needs and addressing their interests. Dispute resolution strategies include fostering a rapport, considering interests and values separately, appealing to overarching values, and indirect confrontation.

In the 2018 Justice Needs and Satisfaction Survey in Nigeria conducted by the Hiil, about 25 million disputes arise in Nigeria every year. Also men encounter legal problems more often than women, which they pegged at a 74% to 71% ration. Also, people in the highest income group encounter legal problems more often than others, particularly the lowest income group.

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However, are all these legal problems resolved? What is the impression of the average Nigerian to the dispute resolution mechanisms available.  Are the Courts adequate? What role is ADR playing in all this and how can we ensure more user friendly justice systems in Nigeria?

All these and much more will be discussed at a session of the Annual General Conference of the Nigeria Bar Association. The session promises to be quite engaging and participants are encouraged to actively take part in the session.

 

#NBAAGC2021 Session: Dealing With Conflicting Decisions From Courts: Matters Arising

#NBAAGC2021 Session: Dealing With Conflicting Decisions From Courts: Matters Arising

Following a wave of conflicting court orders in the country recently, the Chief Justice of Nigeria (CJN), Hon. Justice Tanko Muhammad, demanded the records of proceedings in the suits. The development is sequel to the recent ex-parte decisions delivered by High Courts in three different states (River, Kebbi and Cross River) all of which border on the suspension or otherwise of the Chairman of the Peoples Democratic Party (PDP), Mr. Uche Secondus, which again brought to the fore the nuisance of conflicting judgments by courts of coordinate jurisdiction, particularly on pre-election, post-election and political party leadership crisis.

According to the Guardian Newspapers, the NJC, saddled with the responsibility of upholding decency and discipline by judicial officers, needs to act fast, starting with full investigation of the three judges being referred to it, in order to salvage the battered image of the Judiciary. This ugly trend negates all known and acceptable laid down judicial principles, one of which forbids the further litigation of a subject matter involving the same parties and of the same issues.

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Legal practitioners, being officers of the court, should be reminded of the nobility associated with the profession and conduct themselves in a manner characterized by candour and fairness. They should be reminded that a client has no right to demand that his lawyer do or refrain from doing anything repugnant to his lawyer’s sense of honour or propriety; and he is obliged to decline the conduct of a civil cause or to make a defence when convinced that it is intended merely to harass or injure the opposite party or to occasion a miscarriage of justice.

No doubt this was a very embarrassing moment for the Judiciary, and that’s why its important Lawyers thrash it out at the upcoming conference which starts on the 25th of October, 2021. Most certainly eminent members of the Bar and Bench will be on hand to contribute to the discussions. Save the date and time and make sure you participate.