Legal Drafting and property law Department

LEGAL DRAFTING DEPARTMENT

Introduction
The legal drafting department was initially one of the two legal departments that were created at the inception of the Commission: i.e. The Research Department, and the Legal Drafting Department. In 1995, the Commission restructured the legal departments and created three departments: viz Public Law Department, Business Law Department and Private & Property Law Department. This was done with a view to encouraging specialization. The Legal Drafting Department, which was scrapped during the restructuring exercise, was restored in 2003.

Staff
The Department has three Lawyers and a chief typist:

  1. Mr John Ekeh (Dep. Dir/HOD)
  2. Miss Sola Alayode (Legal Officer I)
  3. Mr William R. Kolawole (Chief Typist)

Schedule of Duties
It is the duty of the department to put into legislative form, all the recommendations of the Commission in the areas of law, which is in the process of being reformed. The law establishing the Commission at Section 5(2)(c) requires that the Commission -

"shall undertake, pursuant to any such recommendations by the National council of Ministers, the examination of particular branches of the law and the formulation, by means of draft legislation or otherwise, of proposals for reform therein."

It also further states in section 5(2)(d) that the Commission -

"shall prepare, from time to time at the request of the Attorney-General, comprehensive programmesof consolidation and statute law revision, and undertake the preparation of draft legislation pursuant to any such programme approved by the Attorney-General."

The department also engages in reform processes, which is to say that it can pick a reform topic, subject to approval by the Chairman and members of the Commission, and make proposals for its reform.
Other duties of the departmet include:

  • Participating in reform processes being organized by other government bodies e.g. the National Assembly, Federal Ministry of Justice etc.
  • Drafting of proposed reform projects by ad-hoc Committee of NGOs.
  • Attending conferences and seminars in any reform related subject matter.

Current Projects
The department is involved in the current ongoing reform projects of the Commission.
It has also embarked on the reform of sexual laws in Nigeria. The Department chose this project because of its recognition of the fact that rape and other sexual crimes are very serious crimes but which have not recieved the requird corresponding attention from the operators of the entire criminal justice system.
It is an offence that leaves the victim emotionally traumatized and may in addition suffer stigmatization by the community. A high percentage of the crime are often unreported, where it is reported still a lower percentage are prosecuted. even at that, a still lower percentage of those prosecuted result in convictions. The aim of the reform exercise is to address some of the impediments which hinder the successful punishment of offenders and thereby discourage others with disposition of re-offending.

Aims/Objectives
The provisions on sexual offences have remained the same since the enactment of the Criminal Code in 1916, (with last amendment made in 1965) and the Penal Code in 1960 (with last amendment made in 1960). Recent awareness and international pressures on the rights of women and rights of the child has therefore not been reflected in these provisions. The majority of victims of sexual offences are women and children (particularly the girl-child). There is therefore the need for a total overhaul by means of reform, of all laws pertaining to sexual offences to reflect the present and current attitudes towards these crimes.
In carrying out this project, the Commission will face the handicap of lack of relevant statistics to show:

  • The frequency at which sexual offences are committed and
  • Data on actual reported cases of rape or other sexual crimes to the police, the age of the victims whether, as it is internationally acknowledged, the perpetrators are persons who are known and/or trusted by the victims.
  • percentage of cases that are not charged to court and reasons for not charging them to court;
  • percentage of cases that are charged to court and rate of conviction and also reasons why conviction failed; and
  • for the convicted rape cases, the percentage that go to the Court of Appeal ans Supreme Court and the percentage that is upheld.

We however acknowledge that for those cases that get to the Court of Appeal and also the Supreme Court, the law reports may be of some help in arriving at some credible data.
The project will in the first instance examine the substantive law and then will thereafter look into procedural laws that will facilitate the effective workings of the proposed reforms.

Consolidating all Sexual Offences into one Law
The Commission will look into the possibility of extracting all sexual offences from the Codes and formulation of a single model law for the States incorporating all forms of sexual assault including indecent assault, sexual intercourse with minors, seduction, soliciting unnatural sexual offences etc.

The Commission would also look into whether or not there is the need to include provisions for incest, which, even though contained in the Penal Code, are not provided for in the Criminal Code. soliciting for prostitution would be amended to include males as well.

Areas of reform

  1. Definition of Rape
    The project will look into the adequacy or otherwise of the prsent definition of rape with apossibilty of widening the scope to include-
    1. a definition that is gender neutral.
    2. include penetration of other parts of the body apart from the vagina.
    3. include penetration by objects other than the sexual organ.
    4. whether definitionshould include penetration, through use of force or threat, of self by the victim, a third party, or an animal.
  2. Consent
    We will examine in particular, whether the consent of a married woman must be taken for granted as regards sexual relationship with her husband and at what stage can consent be assumed to have been withdrawn. Is it after separation, or separation backed with a court injunction, or obtaining a decree nissi or it has to become absolute.
    We would also look into the desirability or otherwise of replacing 'absence of consent' with 'coercive cirumstances' since it has been established that proving consent or lack of it has generally tended to put the victim on trial while totally ignoring the actions of the perpetrator.

Procedural Reforms
The commission will examine the following court procedural and practice issues with a view to making appropriate recommendations:

  1. The issue of legal requirement for corroboration in rape cases will be re-examined.
  2. The cautionary rule by judges on evidence of rape victims.
  3. The ability of the rape victim to oppose bail for the accused.
  4. The need for alternative arrangements for giving evidence, particularly for children and people with retarded growth.

Other Non-legal reforms
The mandate of the Commission should terminate at the reform of the substantive law, the Evidence Act and the Criminal Procedural Laws. However, we are of the view that legal changes must be accompanied by changes in attitude and practice. A cursory look at some judgement on rape shows that the courts appear no to take into cognizance the limitations of the facilities available to the police and ignorance of the majority of citizenry in the collection and protection of evidence needed in th proof of the crime. Consequently, the Commission will look into these inadequacies and make recommendations to government on the possibility of specialized police units for rape cases with its own forensic apparatus. There may also be the need for specialized prosecution units and possibly victim support services.