Update on Public Debate on Hate Speech

Elias Chambers, Lagos State University hosted a Public Debate on Hate Speech at the Faculty of Law, Lagos State. The event was structured In a way to give the participants the opportunity to air their views on hate speech in Nigeria. 3 main speakers began, then the floor was made open to all participants.

The event which had a maximum allowable participant of 40 had close to 40 students of the Faculty of Law across levels present to close the event. A voice vote was conducted at the end of the event on two main issues. The first was, whether support should be given to the Hate Speech Bill currently before the Legislative Houses, the Nays had the day on this. The second was, Should Nigeria have a Hate Speech Law? The Nays again had the day again on this.

Exert points of the comment during the debate are stated below, also a summary of the argument of each speaker is available.
The question Hate Speech Bill in Nigeria: Yea or Nay?

Ojelabi John, (Head of Litigation Equity Law Firm and one time Principal Partner 1) supporting the bill stated, the current Hate Speech bill is uncalled for. He addressed the topic not directly in relation to the bill on the floor of the house, but rather on the importance of hate speech bill in Nigeria.
What statement amounts to hate speech? It is wrong to term a statement not attacking particular group as hate speech. Anything likely to ignite violence is regarded as hate speech. Freedom of Expression is not absolute and can be derogated from. Instances where the statement will cause Public disorder, public immorality or disturb the enjoyment of the right of another person, this is where hate speech law should/will come in. I am a fan of hate speech law, the one that helps define hate speech and provides penalties.

Next was immediate past President of the Law Students Association of Nigeria (LAWSAN), Osijo Adetemidayo, the Nigerian legislative sector promulgates laws that are useless/unnecessary. Extant laws are available that covers the field on hate speech and so there is no need for a special/specific legislation on hate speech.

What is the practical consequence of the bill should it see the light of the day?
It is an impotent law. We should be considering laws necessary and not those that stand as distractions in the polity.
Abiodun Babatunde (A judge of the LASUSU High Court, and Deputy Head of Litigation Lincolns’ Inn) stated that, hate speech is any speech that employs discriminatory words against others, which is the definition the legislator gave. The first criticism is the death penalty ascribed to the offence, and next the intention to create a commission (with the situation of Nigeria). Hate speech is a statement that has tendency of inciting violence.

Difference between opinion & incitement, it is difficult to differentiate, however, the difference is the outcome. The enthusiasm towards results. We need to have hate speech law and it should be on the following principles/basis.

• Level of the speakers Influence
• Grievances/fears of the audience
• Whether or not the act of making the speech is understood as intention to cause violence.
• The social and historical content of the speech
• The way in which the speech was disseminated

If the hate speech bill is enacted into law as it is, it will call for international attention because it is against freedom of Expression.

Dayo Osijo- No instrument to determine a person’s influence. No yardstick. The litmus test stated above is subjectively subjective.

Ralph- Hate speech is an opinion. Hate speech is a symptom of separation.

Apanpa Saheed – Hate speech is not to diminish freedom of speech, but rather to place a limit on it. What exactly constitutes hate speech?

Damilola Onabanjo – I agree with the hate speech bill.

Blessing Umeodinka – I believe it is a political distraction. The fundamental problem with the bill is that the definition of hate speech is not explicit. The intention of the speaker/maker should be put into consideration.

Idris Edalere – Credence should be given to Section 39 which provides for freedom of expression which doesn’t provide expressly for freedom of speech. In as much as the hate speech will lead to the death of a person, I see no reason why such person should not be hanged to death. The bill is a yea for me.

Philips Akintola – Nigeria is not a fertile ground that you can further sow an instrument of such law as hate speech law. Once there is hate speech law, what immunity will the common man hide under?

Ife- what I feel necessitated the hate speech law is the fight by the Fulani Herdsmen; the Igbos and the Fulanis. I don’t think the hate speech bill will solve the ethical war.
Ade – Hate speech law is favoring those who have the upper hand and so the common man must stand up against it.

John Ojelabi – Once hate speech has been defined, it becomes easy to determine what qualifies as hate speech and so would not become a matter of subjective test.

The event was a success, and the Chambers is glad to be leading such discus. The next event of the Chambers is the Mentorship discus with Adeyemi Abijo Esq. under the Workshop segment of the Chambers.

ARBITRATION REFERRED TO AS AN ADR: A CLASSIFICATION ERROR 2

By Olayemi Japheth

Introduction
Arbitration as a means of dispute resolution was conceived as an alternative to the adjudication of disputes by the courts of law. It was intended to be a cheap and expeditious mode of dispute resolution. Its purpose was to lessen the burden on the judiciary by allowing the parties’ peers and experts to resolve the dispute between them. Unfortunately, most experiences from various jurisdictions have shown that arbitration has virtually become a pre-litigation procedure as eventually every award lands up being challenged in court. The proceedings which were supposed to be alternate, cheap and expeditious are neither cheap nor expeditious or alternate. Arbitration is now maligned, dreaded and hated by the litigants who are forced into it. Reasons for the same are manifold and everyone concerned with the system is to blame.

Definition
Arbitration is a non-judicial process of settling disputes with the help of an independent agent, known as an arbitrator, who gives a binding judgment and renders arbitral award. Arbitration, a form of alternative dispute resolution (ADR), is a way to resolve disputes outside the courts. The dispute will be decided by one or more persons (the "arbitrators", "arbiters" or "arbitral tribunal"), which renders the "arbitral award". Arbitration is a flexible and consensual means of resolving commercial disputes through a binding and enforceable process. From the definitions above, it can be deduced that Arbitration can be defined as an Alternative Dispute Resolution (ADR) method employed instead of Litigation to settle disputes between two parties with the aid of an arbitrator. It is the process of referring a dispute to an impartial intermediary chosen by the parties who agree in advance to abide by the arbitrator’s award that is issued after hearing at which all parties have the opportunity to be heard. The decision in arbitration is binding; however, it can be appealed by either of the parties. Like other alternative dispute resolution techniques, arbitration is believed to save time, costs significantly less money and flexible.

Types of Arbitration
The following are types of arbitral proceedings:
-Ad hoc arbitration
-Institutional arbitration
-Fast track arbitration
-Statutory arbitration

Ad hoc Arbitration
Where the parties choose to administer the arbitration proceedings they have subjected themselves to, entirely by themselves, such proceedings known as Ad hoc arbitration proceedings. Ad hoc arbitration” is arbitration agreed to and arranged by the parties themselves without recourse to an Institution. The proceedings are conducted by the arbitrator(s) as per the agreement between the 'parties' or with concurrence of the parties. It can be domestic, international or foreign arbitration. The distinction between ad hoc arbitration proceedings and institutional arbitration proceedings has been described as the distinction between a tailor-made suit and a suit that is store bought .  Ad hoc  arbitration proceedings allow the parties to tailor the procedure to be adopted before the arbitration tribunal to suit their specific needs and requirements whereas a party would be required to follow the rules of procedure laid down by the institution to which they refer the settlement of the dispute if they opt for institutional arbitration. The advantage of ad hoc arbitration is that the parties are free to determine any rules of procedure that they see fit as long as these rules conform to the fundamental principles of law. This allows the parties to adopt the procedure which will ensure that the peculiarities of their disputes are taken into consideration.

Institutional Arbitration
Institutional arbitration” is arbitration conducted under the Rules laid down by an established arbitral organization. Such Rules are meant to supplement provisions of the Arbitration and Conciliation Act in matters of procedure and other matters the Act permits. The rules may provide for domestic arbitration or for international arbitration or for both and the disputes dealt with may be either general in character or specific. There are certain institutions set up with the express purpose of administering arbitration proceedings. Such institutions generally have an established set of rules of procedure, which shall govern the arbitration proceedings being administered by them.it is common practice for parties to an arbitration agreement to refer to such institutions in terms of their agreement. Some of the well-known arbitration institutions at the international level are: the Court of Arbitration of the International Chamber of Commerce, the London Court of International Arbitration, the Permanent Court of Arbitration, the International Centre for the Settlement of Investment Disputes, and the American Arbitration Association. The parties may state in their arbitration clause that any and all disputes arising between the parties shall be referred for resolution by arbitration at such an institution.

Fast-track Arbitration
Fast-track arbitration proceedings are those where the parties decide that no oral hearings will be held, and the arbitral tribunal would be required to make its decision based entirely on the documentary evidence placed before it. A major advantage of fast-track arbitral proceeding is that it would prevent the parties from weighing down the arbitral tribunal with unnecessary waste of time and admission of irrelevant documentary evidence.

Statutory Arbitration
Certain laws passed by government provide for the arbitration of disputes that arise out of or in respect to the substantive law. The provisions in the statute itself which requires parties to settle their dispute by arbitration may be deemed to be an arbitration agreement.

ARBITRATION REFERRED TO AS AN ADR: A CLASSIFICATION ERROR?
Arbitration is the process by which parties by an agreement between them, choose an alternative forum i.e. a forum other than the court of law, to resolve any dispute between them.
Arbitration is not an ‘out of court settlement’ of a dispute per se, in the sense that the parties do not ‘settle’ the dispute by themselves. They appoint a tribunal consisting of members known as arbitrators to decide upon the dispute. As opposed to general knowledge that arbitration involves more control by the parties, more informality, more speed, more efficiency, and in some cases more self-fulfillment, binding arbitration today is increasingly controlled by attorneys who treat it like litigation, conducting discovery and filing motions with the arbitrators and indeed filing motions to compel arbitration or for enforcement in court. This does not seem like an alternative to the traditional way of settling disputes which is through litigation because the system employed in carrying out arbitration is closely similar to the litigation system/ court system. This is a complex system which bores dispute resolution, one of many reasons for the introduction of Alternative Dispute Resolution methods, an ailment which arbitration has not been able to cure.
Some delays are peculiar to arbitration. For example, there are those than can occur at the beginning of the proceeding as a result of the procedure for appointing the tribunal, particular if challenges are made to the arbitration agreement or to an arbitrator. Also, due to the complicated system of arbitration resulting from involvement of attorneys in the process, arbitration has become a very long/time consuming and tedious form of dispute resolution. According to a study, arbitral process takes an average of 5-12 months. This is a direct opposite of ADR which saves time and money.
Conclusively, the employment of the service of attorneys has made arbitration a very expensive option due to less number of experts and high charge by the few available. ADR should be a cost effective option to parties who wish to resolve their dispute through such means. This defeats the ‘cheap’ characteristic of ADR and goes on to disprove Arbitration as a viable alternate method of dispute resolution.

Olayemi Japheth is a 300L Student of the Faculty of Law, Lagos State University, he has remained a very active member of the Chambers since his admission into the faculty.

ARBITRATION REFERRED TO AS AN ADR: A CLASSIFICATION ERROR 1

By Michael Adeniregun

1.0  INTRODUCTION
  Dispute or conflict is part and parcel of human life, and must always be present. But they have to be resolved in such a manner as to ensure peace, stability, harmony and progress in all aspects of human society. The basic means of dispute resolution is through mutual negotiation, failing which the intervention of a third party ensues. A third party is either approached by the disputants or he he intervenes suo motu  (on his/her own accord) to help resolve the dispute. With the passage of time, this gave rise to court system and Alternative Dispute Resolution (ADR).
  Alternative Dispute Resolution mechanism is a range of procedures that serve as alternatives to litigation through the courts for the resolution of disputes generally involving the intercession and assistance of a neutral and impartial third party. This mechanism exists in different forms like arbitration, mediation, conciliation, negotiation, mediation-arbitration (medarb), mini-trial, etc.
  Jesus Christ lived more than two thousand years ago spoke in favour of settlement out of court. He said:
"If someone brings a lawsuit against you and takes you to court, settle the dispute with him while there is time, before you get to court. Once you are there, he will hand you over to the judge, who will hand you over to the police, and you will be put in jail. There you will stay, I tell you, until you pay the last penny of your fine."
Also in the Holy Koran, there is a similar teaching by Prophet Muhammed.

2.0  ARBITRATION
  Arbitration is the process of referring a dispute to an impartial intermediary chosen by the parties who agree in advance to abide by the arbitrator's award that is issued after a hearing at which all parties have the opportunity to be heard. Arbitration resembles traditional civil litigation in that a neutral intermediary hears the disputant's arguments and imposes a final and binding decision that is enforceable by the courts. Arbitration can even expedite negotiations, since the parties know that once the arbitrator has issued a decision, the decision is typically final and rarely appeal-able.
  There are two different forms of arbitration: Private and Judicial arbitration. Private arbitration is the most common form of ADR. Private arbitration is the product of an agreement to arbitrate drafted by the parties who enter a relationship anticipating that disputes will arise, but who mutually desire to keep any such disputes out of he courts. It agreements typically identify the person who will serve as arbitrator. The arbitrator need not be a judge or government official. Instead, the arbitrator can be a private person whom the parties feel will have sufficient knowledge, experience, and equanimity to resolve a dispute in a reasonable manner. In some states, legislation prescribes, the qualifications one must satisfy to be eligible for appointment as an arbitrator. Private arbitration is the primary method of settling labour disputes between unions and employers. For example, unions and employers almost always include an arbitration clause in their formal negotiations, known as collective bargaining agreements. By doing so, they agree to arbitrate future employee grievances over wages, hours, working conditions, and job security. Many real estats and insurance contracts also make arbitration the exclusive method of negotiating and resolving certain disputes that can arise between the parties entering those types of relationships.

3.0 ALTERNATIVE DISPUTE RESOLUTION (ADR)
  Alternative Dispute Resolution (ADR) refers to any means of settling disputes outside of the courtroom. It other words, it is the procedure for settling disputes without litigation, such as arbitration, mediation or negotiation. ADR procedures are usually less costly and more expeditious. They are increasingly being utilized in disputes that would otherwise result in litigation, including high-profile labour disputes, divorce actions, and personal injury claims. Primary reasons why parties prefer ADR proceedings is that, unlike adversarial litigation ADR also allows the parties to come up with more creative solutions that a court may not be legally allowed to impose.

4.0 ADR AND ARBITRATION: THE CONTROVERSY
  It is necessary to analyze the controversy surrounding arbitration as an ADR mechanism before dwelling on the crux of this work. Alternative Dispute Resolution seems to have abandoned arbitration as an integral part of the mechanism. Opinions differ considerably about whether to classify arbitration as ADR or not. This is because arbitration shares the features common to both ADR properly so-called and litigation. In one camp are those who think that arbitration should not be grouped with other forms of ADR. Prominent among this group are Redfern and Hunter. For them, arbitration would have been included in ADR if the latter is used in a wide sense of methods of resolving disputes other than those adopted by the courts. But for the fact that ADR is not always used in this wide sense, arbitration is not included in ADR. In support of their view, the authors quoted Carroll and Dixon stating that:
  '' Arbitration presents an alternative to the judicial process in offering privacy to the parties as well as procedural flexibility. However, it is nonetheless fundamentally the same in that the role of the arbitrator is judgmental. The function of the judge and the arbitrator is not to decide how the problem resulting in the dispute can most readily be resolved so much as to apportion responsibility for that problem".
For this school of thought, therefore, although arbitration is a great alternative to litigation, nevertheless, it is not ADR strict sensu (in a strict sense) because it is judgmental and imposes a decision on one of the parties. There is therefore a winner-loser phenomenon. Arbitration is closer to litigation in its method than it is to ADR. An agreement to arbitrate is enforceable by the courts, whereas an agreement to enter into an ADR process will not be so enforced. However, in Australia, the court has held that agreement to conciliate could be enforced where it has the certainty necessary for legal enforceability. The judge defined what is enforced as “not cooperation and consent but participation in a process from which cooperation and consent might come”. There is yet no such rule of law in English or Nigerian legal systems. Arbitration is governed by the applicable law whereby its process and outcome are pre-determined in accordance with an objective regulatory standard. In ADR, for example, mediation, the process and outcome are determined solely by the will of the parties.
   In arbitration, a party’s task is to prove his case and convince the arbitral tribunal that he is right; whereas in other forms of ADR, the task is to convince or compromise with the other party since the outcome must be accepted by both parties. While an arbitrator is empowered to make a binding award, in other forms of ADR like mediation, a mediator has no power to make a binding decision. The procedure adopted in arbitration is different from that obtained in other forms of ADR. Arbitrators must act in accordance with the rules of natural justice, that is to say, they must hear both parties together and at the same time. On the other hand, mediators are free to see the parties independently and privately, and because of the duties of confidentiality, may not even disclose to one party what they have been told by the other.
  On the other side of the camp are those who see arbitration as ADR because of the attributes it shares in common with them, which are absent in litigation. These features inter alia, are party autonomy in the choice of arbitral tribunal, convenience of the parties in the choice of time and venue for the proceedings, informality in its conduct, privacy and cordiality of the parties, during and after the resolution of the dispute which makes the relationship to continue unsoiled.

5.0  CONCLUSION
  It is the nature of arbitration that puts it in its present curious state and rightly so. It has developed over the years with legislative interventions which formalized it to its present status. However, because arbitration has some features of ADR properly so-called, and some others of litigation, this peculiarity marks it out distinctly  as a unique form of dispute resolution machinery with advantages outweighing disadvantages. We therefore classify arbitration as ADR - a special type of ADR, and place it topmost in the list of ADR methods on account of the reasons given in this work. Variety is the spice of life. It is a healthy development that there should be different types of ADR so that people could have the freedom to make their choice from a wide range of available options. This feature of multiple choice is the major reason why we advocate for the use of arbitration and other forms of ADR in the management of various disputes which arise regularly on account of human interactions. It is praiseworthy to note that this has been introduced in Nigeria by the concept of Multi-Door Courthouse in Lagos and Abuja.

Michael Adeniregun is a 200L Student of the Faculty of Law, Lagos State University. He has been a member of the Elias Chambers since he was admitted into the faculty.

'PIGB' ready for Presidential Assent

The House of Representatives passed the Petroleum Industry Governance Bill (“PIGB”) on Wednesday 17th of January, 2018. This is following the passage of the PIGB by the Senate in May 2017.

What does the PIGB do?

The PIGB is one of four bills which seeks to incorporate the reforms proposed under the Petroleum Industry Bill. It addresses the reforms to the institutional framework of the petroleum industry. The key reforms include:

the establishment of an independent regulatory commission – the Nigerian Petroleum Regulatory Commission, which incorporates the current Department of Petroleum Resources and the Petroleum Product Pricing Regulatory Agency;

•he unbundling of NNPC into two limited liability companies, with one holding joint venture assets in the upstream sector and the other holding the production sharing contract assets;
•
governance and accountability arrangements with respect to the new institutions created.

What is Next?

The next step in the process is the reconciliation of the versions of the PIGB passed by both Houses of the National Assembly. This process is not expected to take a long time as we understand that there are no significant changes in the different versions. Following reconciliation of the different versions, the Bill will be forwarded to the President for his assent.

Both Houses of the National Assembly are also working on the other reform bills – the Petroleum Industry Administration Bill, the Petroleum Industry Fiscal Bill and the Petroleum Host Community Bill.

Source: http://www.petroleumindustrybill.com/2018/01/19/house-passes-the-pigb/#more-852