AN ANALYSIS OF UNITED NATIONS CONVENTIONS ON PREVENTION AND CONTROL OF NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES: A CASE STUDY OF DOMESTIC IMPLEMENTATION IN NIGERIA.
Narcotic drugs and Psychotropic substances are illicit drugs regulated under international law. They are harmful and they cause mental injury to individuals that abuse them. This is mainly because of the dangerous effect of the toxic resin contained in narcotic plants such as opium and cocaine. They are also addictive so much that illicit drug users become very dependent on them. This makes the drugs to be high in demand and therefore a lucrative business for drug traffickers. The harmful effect of narcotic drugs and psychotropic substances such as causing insanity, problems of addiction and a motivation of violent crimes, in addition to being a highly lucrative business, has made many countries in the world to pass laws aimed at preventing and controlling these illicit drugs. The challenges presented in these illicit drug activities include cultivating, processing, manufacturing, storing, transporting, selling and thereby making money quickly, has made it a global malaise or problem. For instance, cocaine produced in Columbia (producing state) are trafficked through Nigeria via Murtala Muhammad Airport in Lagos (transit state) to Europe where it is sold, (consumer states) which makes it difficult for any one country to succeed in a single effort aimed at preventing drug trafficking and drug abuse. This makes it necessary for countries as members of the international community to combine their efforts under treaty agreement and international law to prevent drug trafficking and drug abuse. In this regard, the United Nations Convention against Drug Traffic and Abuse of Narcotic Drugs and Psychotropic Substances, amongst other conventions, provides a legal and institutional framework for countries to adopt and implement in their domestic legal systems to prevent and control illicit drug activities. The aim of this is to enable countries such as Nigeria, solve the problems of drug abuse and drug trafficking. However, despite these efforts, there is a rise in drug abuse and drug trafficking in the country. This is a major issue that this research addressed, as it has identified lapses in the law that have failed to proscribe emerging kinds of drugs. These lapses are the primary cause of the rise of drug abuse in Nigeria. For instance, cough syrup with codeine is widely abused in Nigeria and the law is unable to respond appropriately because there is no enabling statute or legislation that out rightly outlaws the abuse of cough syrup in the same way as Indian hemp is outlawed. The problem of this research is to analyse the nature and extent of the drug problems in Nigeria in relation to obligations that international law on illicit drugs requires Nigeria to perform. To also analyse the challenges hindering the successful performance of these obligations. The objective of this research is to consider how the Federal Government of Nigeria has implemented the international law with a view to address and solve the drug problem in the country. In view of the powers conferred by the international treaties on drug trafficking and drug abuse on the Federal Government of Nigeria, the Government has put in place institutions and has enacted laws for combating the drug problem in the country. Some of the institutions include the National Drug Law Enforcement Agency (NDLEA), the Federal High Court as the court with original jurisdiction on illicit drug matters, and also Rehabilitation Clinics and Centres for treating and counselling drug addicts. The National Drug Law Enforcement Agency Act is the primary legislation on combating illicit drug activities in the country. Some key findings from this research are that there are no enabling laws that empower the NDLEA and the Federal High Court to arrest and prosecute individuals abusing certain kinds of drugs such as cough syrup with codeine, e.t.c. which in turn leads to the increase in drug abuse in the country. The inability of the Federal Government of Nigeria to enhance the capacity of the NDLEA, through sufficient funding so as to counter drug trafficking has led to less policing by the NDLEA and increased illicit drug activities. Along with the lack of sufficient rehabilitation centres across the country for the sake of removing drug addicts from dependence on illicit drugs, presents a major challenge to Government efforts aimed at solving the drug problem in the country. As solution to these drug problems, it is therefore recommended to the Federal Government of Nigeria to amend the NDLEA Act with a view to proscribe emerging drugs and substances capable of abuse that are not illicit presently, to increase its funding of the NDLEA to enable it counter the activities of drug traffickers and to also build rehabilitation centres for addressing the problem of drug addiction in the country.
1.1 Background of the Study
The word Testimony means: the evidence of a witness usually given in court and usually under oath.1The first source of the proof of a crime or a right in islamic law is SHAHADA i.e Testimony literally means: information of what one has witnessed or seen or beheld with his eyes, declaration of what one knows, decisive information, it also means to be present.
Technically means: to give true information before a competent court of law what one has seen or known for the purpose of proving or disproving a right or crime.2 The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding, these rules determine what evidence must or must not be considered by the trier of fact in reaching its decision and sometimes the weight that may be given to that evidence. The law of evidence is also concerned with the quantum (amount) quality of proof is how reliable such evidence should be considered. This includes such concepts as hearsay authentication, admissibility, reasonable doubt and clear and convincing evidence.
There are several types of evidence, depending on the form or source, evidence governs the use of testimony (e.g oral or written statements, such asaffidavit), exhibits (e.g physical objects), documentary material, or demonstrative evidence
1. Bone, S., Osborn’s Concise Law Dictionary, Sweet and Maxwell, London, 2001, p.376. 2. Cowdhury, A., The Islamic Law of Evidence, Kitab Bhavan, New Delhi, India, 2006, p.19.
which are admissible i.e allowed to be considered by the trier of fact, such as jury in a judicial or administrative proceedings, e.g a court of law when a dispute whether relating to a civil or criminal matter, reaches the court there will always be a number of issues which one party will have to prove in order to persuade the court to decide in his favour.The law must ensure certain guidelines are set out in order to ensure that evidence presented to the court can be regarded as trustworthy. In Nigerian law the rule of corroboration in criminal cases requires that there must be two pieces of evidence, to prove each essential fact, eventhough this corroboration requirement is no longer applies in civil cases with the exception of some areas of family law, such as divorce, when another individual not party to the marriage must act as witness. Also in nigerian law, evidence that would otherwise be admissible at trial may be excluded at the discretion of the trial judge if it would be unfair to the defendant to admit it.Evidence of a confession may be excluded because it was obtained by oppression or because the confession was made in consequence of anything said or done to the defendant that would be likely to make the confession unreliable. In these circumstances, it would be open to the trial judge to exclude the evidence of the confession. Further the authentication requirement has import primarily in jury trials, if evidence of authencity is lacking in a bench trial, the trial judge will simply dismiss the evidence as unpersuasive or irrelevant.
In systems of proof based on the Nigerian law almost all evidence must be sponsored by a witness, who has sworn or solemnly affirmed to tell the truth. The
bulk of the law of evidence regulates the types of evidence that may be sought from witnesses and the manner in which the interrogation of witness is conducted such as during direct examination and cross of witnesses. Other types of evidentiary rules specify the standards of persuation (e.g proof beyond a reasonable doubt) that a trier of fact whether judge must apply when it assesses evidence. Today all persons are presumed to be qualified to serve as witnesses in trials and other legal proceedings and all persons are also presumed to have legal obligation to serve as witnesses if their testimony is sought. However legal rules sometimes exempt people from the obligation to give evidence and legal rules disqualify people from serving as witnesses under some circumstances. Witness competence rules are legal rules that specify circumstances under which persons are ineligible to serve aswitnesses e.g nor judge is competent to testify in a trial in which the judge serves in that capacity, so also a person is deemed not competent to testify as to statements of or transaction with a deceased opposing party. The Nigerian law set out the rules that regulates the procedure of witnesses whom are capable to testify in a court of law.
Islamic law is strives to ensure that justice does not only reign but fully implemented. And one of the way of ensuring justice is done is through judicial system. In order to ensure justice in judicial system, islamic law laid down thelaw of proof known as evidence (Bayyinah). The purpose of evidence in islamic law is to
avoid punishing innocent persons through errors i.e to set the innocent free and punish the offender if found guilty. It is for this reason that islamic law made it incumbent on claimant to produce a piece of convincing evidence in support of his claim, on the basis of which decisions of courts are given. In both civil and criminal procedings, claims are proved in one of the following ways:
1. Through written or oral confession, (Iqrar)
2. By oral testimony (Shahada) which is the topic of research
3. By oath (Al-yameen)
4. By circumstantial evidence (Al-ithbaat bi Qaraa‟in al Ahwaal)
5. By documentary evidence (Alkitaba)
6. By opinion of experts (Raayul-khabir)
7. Through the knowledge of Judge (Ilmul-Qadi)
8. By hearsay evidence (Assimaa‟a)
Other method of proof such as swearing on oath, circumstantial evidence, documentary evidence,experts evidence, knowledge through the judge and hearsay evidence do not form part of the scope of this work.
In islamic law great importance has given to testimony (Shahada).3 for that reason: Allah said:
(O you who believe! Be staunch in justice witness for Allah even though it is against you or your parents or kindred)4
3 Chowdhury, A., Principles of Evidence in Islam, A.S. Noordeen, Kuala Lumpur, Malaysia, 2004, p.1.
(And call to witness from among your men two witnesses, and if two men are not available then one man and two women whom you approve as witnesses, so that if the one makes an error the other will remind her…)5 Considering the significant of proof in both civil and criminal litigations, the messenger of Allah (S.A.W) was reported to have said:
Were people to be given whatever they claim (without proof) they would have claimed the property of other people and their blood, i.e lives, but establishment of proof i.e. al-bayyina is on the claimant and oath is administered on who refutes the claim i.e. defendant.6 There are two separate stages as far as testimony is concerned, the period of concieving a particular piece of evidence (Attahammul) is one stage and the period of rendering such testimony in evidence (Adaa‟a) is another stage, and is not every bit of what one percieves or views that comes before court, the court will only satisfied with the oral testimony that will assist in ensuring justice.
The research work will put emphasis on Tesimony in Nigerian law with a particular reference to Islamic law, it is known that the Nigerian legal system enjoys three different laws i.e, a. The English common law, b. The Customary law, c. and The Islamic law.
4 Qur’an 4:135 5 Ibid, 2:282 6 Abdulwahab, A.A., Commentary on Forty an Nawawi’s Collection, Arabiyya House for Publishing and Distribution, 1989, p.98
But park in his superb book The Source of Nigerian Lawis of the view that: The term customary law for throughout the federation it includes islamic law. This is made explicit in the north by section 2 of the Native Courts Law which provides that: thus the practical purposes Islamic law and the various tribal law are treated alike, though there are many theoretical distinctions between them. In particular Islamic law originates from outside Nigeria, and is not a purely indigenous phenomenon. Consequently it isnot grounded in any particular locality,and can apply in appropriate cases throughout the countryin large parts of the North, however it has supplanted the local system almost entirely, and occupies the same position in relation to those areas as does Igbo law to most of the west.
It seems that islamic law is not always uniform throughout Nigeria, but in the main it is the Maliki system that prevails.7
1.2 STATEMENT OF PROBLEM
One of the avenue of ensuring justice in the court of law is TESTIMONY, it is obligatory to convince the court about an offence that occurred which is punishable in the eyes of law, or a right that should be entertain in order to seek for redress and remedy i.e to return it back to the owner, or claiming for damages, in all of the above situations a case must be proved beyond a reasonable doubt in criminal matters, or the evidence will lies on preponderant possibility in civil cases.
7 Park, A.E.W., The Sources of Nigerian Law, Sweet and Maxwell, London, 1985, p.66
Burden of proof is a right of parties in dispute, they will play a positive role in trying to prove or confute a case before the court and the judge under the authority of the court will weigh between the two evidences.
It is clear that burden of proof may refer to the ultimate burden of establishing a case either by preponderance of evidence as in civil cases or beyond a reasonable doubt as in criminal cases, the burden of producing evidence whether at the beginning of a case or at any later moment throughout the trial, that is the burden of proof in the sense of introducing evidence in proof of certain facts.8 General burden of proofin criminal cases, is indeed provided in 1999 Nigerian constitution that:
Every person who is charged with a criminal offence shall be presumed to be innocent untilhe is proved guilty.9 While in civil casesit is stated in Evidence Act that:
Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.10 The above law expressly stated that the accused can not be regarded as a guilty person until the prosecution satisfy the court that the accused is guilty. But the constitution moves further to state that:
8 Aguda, T.A., The Law of Evidence, Spectrum Law Publishing, Ibadan, 2009, p.212 9 Section 36 (5), 1999 Constitution of the Federal Republic of Nigeria 10 Section 135 (1), Evidence Act, 2011
Provided that nothing in this section shall invalidate any law by reason only that the burden of proving particularfact.
When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.11 Therefore burden of proof as provided in the constitution is of two types that depends on or upon the party to any given case.
a. Burden of proof on the prosecution to prove the accused person guilty of an offence or crime.
b. Burden of proof on defence to disprove or cast doubt to the prosecution case.
In every dispute there are at least two litigating parties, the plaintiff and the defendant, the former claims what is contrary to the apparent facts and the defendant denies such claim. The burden of proof lies on the plaintiff because what is apparent is presumed to be the original state, if the plaintiff has no proof and the defendant denies the claim, he will then be given an oath afterwhich the plaintiff‟s suit must fail.12 In Islamic Law, burden of proof means liability upon a party who brought his case to a court to provide evidence as to the truth of his claim, failure of which judgement wuold not be given on his favour unless the adverse party admits the plaintiff‟s claim positively.
11 Ibid, Section 135 (2) 12 Cowdhury, A., The Islamnic Law of Evidence, Op. Cit. p.4
In DanjumaV. Baaji13 The court of Appeal Jos Division commented on wrongly producing witnesses in procedure of Civil Area Court Gombe thus: I cannot understand how the trial court first ordered the defendant (and not the plaintiff) to prove his case. Hajja Baaji never took the matter to court. The facts as stated in the record of proceedings do not show that Hajja Baaji could be a plaintiff. After the statement of the claimant the defendant (Hajja Baaji) merely denied the claim. Instead of the judge to order the claimant to adduce Evidence in proof of his claim by calling the required witnesses, that court directed the defendant to call witness which was done by the defendant. The court below therefore cannot, with due respect be right in upholding the decision of the upper Area court which in turn affirmed the wrong decision of the trial court. Moreover before the afore cited comment by the court of Appeal, the said court had held inter alia that the trial judge did not discharge his primary duty at the onset, to determine who is the plaintiff and the defendant among the parties that appeared before him.
Also in the case of Dakasoye V. Dakasoye14 the Court of Appeal Kaduna Division, Per Coomasie J.C.A. (as he then was) while commenting on procedural lapses of Upper Area Court, Yankaba (Kano State) observed that: “………….. some of the
13 Danjuma V. Baaji (2000) 7, N.W.L.R. pt. 396, p.406 14 Dakasoye V. Dakasoye (2000) 3, N.W.L.R. pt. 647, p.50
Area Courts and even Upper Area Courts fall frequently into the mistakes of asking the defendant to call his or her witnesses in the event that the plaintiff failed to call required number of witnesses or even when the claimant failed completely to call any witness. In such a situation the court should call upon the defendant who is in possesion to take (Yaminul Qada‟a) the oath of judgement and dismiss the claim of the plaintiff.
Also in the case of Maryam V. Sa‟adu15the Magistrate ordered Maryam to produce her evidence i.e witness that will testify before the court to support her allegation and convince the court that her ex husband Sa‟adu directed Zaheed (a classroom teacher in their children‟s school) to disgrace and disallow her access to their children whenever she visited the children in the school, Zaheed discharged his assignment and sent her away with insulting her. She failed to produce the witness and the accused outrightly denied the allegation after which the case was dismissed.
In Kinnami V. Borno Native Authority, it was stated that: in Moslem law, as in English law, it is not the duty of the accused to prove his innocence. The duty is upon the accuser to prove his accusation. There is a presumption that an accused person who denies accusation is innocent, which makes it the duty of the accuser to prove his guilt.16 It is interesting for the legal luminaries to see that there is a broad consensus of the facts before it can be well established and that will lead to an appropriate decision.
15 No. 55/2013/Magistrate Court Tudun wada Zaria, Kaduna State, (Unreported) 16 Kinnami V. Borno Native Authority (1957) N.R.N.L.R.
It is also a matter of fact that before a claimant can win his claim he will provide a concrete evidence that will convince the court, otherwise he will lost his claim, there are some challenges disrupting the court‟s procedure in establishing cases through oral testimony the issues of consideration are: subject matter before the court i.e condition of claims (shurut da‟awa), the competency of parties in dispute and jurisdiction of the court. There are also issues to beput into consideration on witnesses and weighing their evidence such as: a. Qualification of a witnesses, b. Reception and admissibility of evidence, c. Is it true or false evidence, d. Is there any clashes of the evidence, e. Injuring Tarjih. The rules of oral testimony are derived from caselaw and are applied by the courts to ensure the reliability of the testimony that is relied on, to reach a decision, however a judge errs in law if he gives no weight to a document because its contents were not proved in accordance with the rulesof testimony. Thus;the assesment of the testimony should be framed in terms of the credibility and trustworthiness of the evidence as that is the test set out in our courts proceedings, weighing of testimony tend to support the position of evidence either to admit or to reject it completely. Further it is preferable to asses the credibility of the testimony based on total evidence presented, credible decisions are not always easy to make and often require careful thought and analysis if not the hearing process would become very slow and tedious.
In light of the foregoing and in order to overcome the problems of losing claims due to lack of sound oral testimony, research work of M.A Laws level is a welcome idea.
1.3 AIM AND OBJECTIVES
Since legal materials on proof by oral testimony in Nigeria law are mostly scattered in our leading books, the main aim of the thesis is to produce a material that will serve as an easy reference in Evidence law, also to equip the litigants or disputant parties on an ideal way of presenting or testifying their facts before the court of law to make it admissible. It is part of the objectives of the work to: Analyze the problems the courts are facing when adopting Testimony to establish or confute cases with a view to profer solutions. Furthermore the thesis work will also analyze the concept of testimony in Nigerian law i.e Common law and Islamic law in particular with a view to arrive at a correct legal material as contribution in the area of proof.
1.4 SCOPE OF THE RESEARCH
It is hoped that the research work will be restricted to Nigerian law of proof i.e Common law and Islamic law with particular reference to principles of proof by Testimony as one of the various means of evidence in both criminal and civil cases under Islamic law.
The doctrinal research method that is to say library oriented which involves the study and
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