GLOBAL ECONOMY AND GLOBAL ECONOMY AND INVESTMENTS IN INVESTMENTS IN AFRICA : TURNING AFRICA : TURNING ADVERSITY TO ADVERSITY TO OPPORTUNITY THROUGH OPPORTUNITY THROUGH NEGOTIATION AND THE NEGOTIATION AND THE AND THE COURTSAND THE COURTS

A Paper Presented by Prof. Yemi Osinbajo, SAN at the 4A Paper Presented by Prof. Yemi Osinbajo, SAN at the 4 thth NCMG African ADR NCMG African ADR Summit. 12Summit. 12thth November, 2009 November, 2009

Judicial Function in the Judicial Function in the Administration of Justice Administration of Justice SystemSystem

The administration of justice system The administration of justice system especially the judicial function within it is especially the judicial function within it is critical to the maintenance and critical to the maintenance and enforcement of the rule of law enforcement of the rule of law

Pillars of good societyPillars of good society

Every successful society rests on 3 pillarsEvery successful society rests on 3 pillars

(i) Security (i) Security

(ii) Rights(ii) Rights

(iii) The Economy(iii) The Economy

All 3 pillars depend for their efficiency on the All 3 pillars depend for their efficiency on the rule of law.rule of law.

But more important is the fact that both But more important is the fact that both security( of lives and property ) and the security( of lives and property ) and the observance of and enforcement of the observance of and enforcement of the rights of people – directly affect the rights of people – directly affect the economy.economy.

GET THE ENVIRONMENT GET THE ENVIRONMENT RIGHT FOR LOCAL RIGHT FOR LOCAL INVESTMENT FIRST !!!!INVESTMENT FIRST !!!!

Local securityLocal security

If robberies, kidnappings and offences If robberies, kidnappings and offences involving violence are rampant and involving violence are rampant and perpetrators are not being apprehended, tried, perpetrators are not being apprehended, tried, convicted because of problems within the convicted because of problems within the administration of justice system – cost of doing administration of justice system – cost of doing business rises and many local & foreign business rises and many local & foreign investors are unwilling to invest in certain types investors are unwilling to invest in certain types businesses e.g. frequent armed raids on businesses e.g. frequent armed raids on banks – led to substantial investment in banks – led to substantial investment in security equipment. security equipment.

Surveys show that fewer criminal Surveys show that fewer criminal prosecutions and convictions` being prosecutions and convictions` being recorded- despite anecdotal evidence of recorded- despite anecdotal evidence of rise in crime in the past decade.rise in crime in the past decade.

Comparative figures of population size Comparative figures of population size and number of convicts in prison and number of convicts in prison

Comparative Comparative Population/Prison FiguresPopulation/Prison FiguresCountry and PopulationCountry and Population No. of Convicted No. of Convicted

PrisonersPrisoners

Nigeria (140 millionNigeria (140 million 39,01139,011

U.S (298.2 million)U.S (298.2 million) 2, 198, 7982, 198, 798

Russia (143 million)Russia (143 million) 871,693871,693

South Africa (47.4 million)South Africa (47.4 million) 160,198160,198

United Kingdom (59.7 United Kingdom (59.7 million)million)

88,19788,197

Prison –show a stark Prison –show a stark difference from other difference from other jurisdictions- (Slide jurisdictions- (Slide comparative prison comparative prison figures)figures)

Foreign investors asses ‘risk’ factors Foreign investors asses ‘risk’ factors include –include –

time it takes to resolve disputes in court,time it takes to resolve disputes in court, security of lives and property,security of lives and property, protection of the rights of individuals protection of the rights of individuals The justice administration system plays a The justice administration system plays a

critical part in substantially reducing these critical part in substantially reducing these risksrisks

LAW ENFORCEMENTLAW ENFORCEMENT

Enforcement of judgmentsEnforcement of judgments Police and policingPolice and policing DetectionDetection- is critical because it is not the severity of - is critical because it is not the severity of

punishment that deters but the likelihood of detection punishment that deters but the likelihood of detection

and certainty of punishment e.g. impunity of high and certainty of punishment e.g. impunity of high

profile assassinations, corruption cases. profile assassinations, corruption cases.

Investigations Investigations –forensics: e.g. –forensics: e.g.

- Funso Williams- Funso Williams

- Alaba Joseph- Alaba Joseph

- Bola Ige- Bola Ige

- Elections- Elections

Ineffective Law enforcement undermines the 3 planks.Ineffective Law enforcement undermines the 3 planks.

Inefficient Criminal TrialsInefficient Criminal Trials

Long delays – technical issuesLong delays – technical issues Slow pace of investigations –witness Slow pace of investigations –witness

disappeardisappear IPO's not in CourtIPO's not in Court Key witnesses in major trials – no Key witnesses in major trials – no

witness protection programwitness protection program Failure of Criminal Justice system Failure of Criminal Justice system undermine the 3 planksundermine the 3 planks

What to do What to do

SHORT TERMSHORT TERM Criminal Statistics DatabaseCriminal Statistics Database

Forensic FacilitiesForensic Facilities Re-equip policeRe-equip police

LONG TERMLONG TERM Police :Begin againPolice :Begin again State policeState police

Problems of law enforcement Problems of law enforcement Delays in our system of adjudication is a Delays in our system of adjudication is a

serious disincentive to business and serious disincentive to business and commercecommerce

LONG DELAYS IN LONG DELAYS IN JUDICIAL RESOLUTION JUDICIAL RESOLUTION OF CIVIL DISPUTES HAS OF CIVIL DISPUTES HAS SERIOUS IMPLICATIONS SERIOUS IMPLICATIONS FOR THE ECONOMYFOR THE ECONOMY

NATIONAL AVERAGE OF TIME TAKEN TO NATIONAL AVERAGE OF TIME TAKEN TO CONCLUDE CASES ACROSS THE CONCLUDE CASES ACROSS THE COUNTRY (2001-2006)COUNTRY (2001-2006)

LAND CASESLAND CASES

HIGH COURT 6.2 YEARSHIGH COURT 6.2 YEARS COURT OF APPEAL 4 YEARSCOURT OF APPEAL 4 YEARS SUPREME COURT 6 YEARSSUPREME COURT 6 YEARS TOTAL 16. 2 YEARSTOTAL 16. 2 YEARS

FROM HIGH COURT TO SUPREME COURT:FROM HIGH COURT TO SUPREME COURT: 16.2 YEARS16.2 YEARS

GENERAL CIVIL CASESGENERAL CIVIL CASES

HIGH COURT 3.4 YEARSHIGH COURT 3.4 YEARS

COURT OF APPEAL 2.5 YEARSCOURT OF APPEAL 2.5 YEARS

SUPEREME COURT 4.5 YEARSSUPEREME COURT 4.5 YEARS

TOTAL 10.5 YEARSTOTAL 10.5 YEARS

FROM HIGH COURT TO SUPREME FROM HIGH COURT TO SUPREME COURT: 10.5 YEARSCOURT: 10.5 YEARS

CRIMINAL CASESCRIMINAL CASES

HIGH COURT 1.5 YEARSHIGH COURT 1.5 YEARS

COURT OF APPEAL 3.5 YEARSCOURT OF APPEAL 3.5 YEARS SUPREME COURT 2.0 YEARSSUPREME COURT 2.0 YEARS TOTAL 7 YEARSTOTAL 7 YEARS

FROM HIGH COURT TO SUPREME FROM HIGH COURT TO SUPREME COURT: 7 YEARSCOURT: 7 YEARS

Surveys done as part of the Lagos justice Surveys done as part of the Lagos justice sector reform project – show that 3 areas sector reform project – show that 3 areas of commerce and industry and the of commerce and industry and the economy are worst hit.economy are worst hit.

(i) Housing(i) Housing

(ii) Mortgage Lending(ii) Mortgage Lending

(iii) Land Transactions.(iii) Land Transactions.

HOUSINGHOUSING

-Reduction in stock of housing in Lagos State-Reduction in stock of housing in Lagos State - Long delays in resolving land and tenant - Long delays in resolving land and tenant

disputesdisputes RemediesRemedies Citizens mediation centersCitizens mediation centers - Over 8,000 resolved in 1 year- Over 8,000 resolved in 1 year Every Magistrate – become Tribunal Every Magistrate – become Tribunal

chairman chairman

MORTGAGE LENDINGMORTGAGE LENDING

- Perfection of securities is crucial to mortgage - Perfection of securities is crucial to mortgage lendinglending

- Delays caused by injunctions restraining - Delays caused by injunctions restraining

completion of perfection process – even completion of perfection process – even

where the plaintiff (borrower) has drawn where the plaintiff (borrower) has drawn

dawn on the facilitydawn on the facility

- Delays in foreclosure, forfeiture process,- Delays in foreclosure, forfeiture process,

because of judicial intervention because of judicial intervention

Delays in civil disputes generallyDelays in civil disputes generally

- Contracts etc. - Contracts etc.

- Celtel Shares- Celtel Shares

- Chevron Sales- Chevron Sales

WHAT TO DOWHAT TO DO

ALTERNATIVE DISPUTE RESOLUTIONALTERNATIVE DISPUTE RESOLUTION

THE MULTIDOOR SOLUTIONTHE MULTIDOOR SOLUTION

SUCCESS STORIES: THE ALEX SUCCESS STORIES: THE ALEX EKWUEME CASEEKWUEME CASE

WHAT TO DOWHAT TO DO

CIVIL PROCEDURE REFORMCIVIL PROCEDURE REFORM Civil Procedure RulesCivil Procedure Rules

More Stringent Costs Regime for Dilatory TacticsMore Stringent Costs Regime for Dilatory Tactics Interlocutory Appeals to terminate at the Court of AppealInterlocutory Appeals to terminate at the Court of Appeal Need for collaborative interaction between CJN, AGF, Need for collaborative interaction between CJN, AGF,

LEGISLATIVE HeadsLEGISLATIVE Heads Innovative Supreme Court intervention on notorious issues Innovative Supreme Court intervention on notorious issues

which cause or are deployed to cause delayswhich cause or are deployed to cause delays

What can be doneWhat can be done

EFFICIENT COURT SYSTEMEFFICIENT COURT SYSTEM (CIVIL)(CIVIL) Objectives: Speedy and fair resolution of disputesObjectives: Speedy and fair resolution of disputes

Requirements: Knowledge, Independent, Honest JudgesRequirements: Knowledge, Independent, Honest Judges (Appt procedures, Training, etc)(Appt procedures, Training, etc) Resolution friendly Civil Procedure RulesResolution friendly Civil Procedure Rules

Adequate Infrastructure & EquipmentAdequate Infrastructure & Equipment

Welfare of JudgesWelfare of Judges

DisciplineDiscipline

ConclusionConclusion

THINKING ANDTHINKING AND

PLANNINGPLANNING