GLOBAL ECONOMY AND INVESTMENTS IN AFRICA : TURNING ADVERSITY TO OPPORTUNITY THROUGH NEGOTIATION AND THE AND THE COURTS A Paper Presented by Prof. Yemi Osinbajo, SAN at the 4 th NCMG African ADR Summit. 12 th November, 2009

Judicial Function in the Administration of Justice System  The administration of justice system especially the judicial function within it is critical to the maintenance and enforcement of the rule of law

Pillars of good society  Every 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 rule of law. All 3 pillars depend for their efficiency on the rule of law.

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

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

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

 Surveys show that fewer criminal prosecutions and convictions` being recorded- despite anecdotal evidence of rise in crime in the past decade.  Comparative figures of population size and number of convicts in prison

Comparative Population/Prison Figures Country and Population No. of Convicted Prisoners Nigeria (140 million 39,011 U.S (298.2 million) 2, 198, 798 Russia (143 million) 871,693 South Africa (47.4 million) 160,198 United Kingdom (59.7 million) 88,197 Prison –show a stark difference from other jurisdictions- (Slide comparative prison figures)

 Foreign investors asses ‘risk’ factors include –  time it takes to resolve disputes in court,  security of lives and property,  protection of the rights of individuals  The justice administration system plays a critical part in substantially reducing these risks

LAW ENFORCEMENT  Enforcement of judgments  Police and policing Detection- is critical because it is not the severity of Detection- 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 –forensics: e.g. Investigations –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 Trials  Long delays – technical issues  Slow pace of investigations –witness disappear  IPO's not in Court  Key witnesses in major trials – no witness protection program Failure of Criminal Justice system Failure of Criminal Justice system undermine the 3 planks undermine the 3 planks

What to do  SHORT TERM Criminal Statistics Database Criminal Statistics Database Forensic Facilities Forensic Facilities Re-equip police Re-equip police  LONG TERM Police :Begin again Police :Begin again State police State police

 Problems of law enforcement  Delays in our system of adjudication is a serious disincentive to business and commerce

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

 NATIONAL AVERAGE OF TIME TAKEN TO CONCLUDE CASES ACROSS THE COUNTRY ( ) LAND CASES LAND CASES HIGH COURT 6.2 YEARS HIGH COURT 6.2 YEARS COURT OF APPEAL 4 YEARS COURT OF APPEAL 4 YEARS SUPREME COURT 6 YEARS SUPREME COURT 6 YEARS TOTAL YEARS TOTAL YEARS FROM HIGH COURT TO SUPREME COURT: 16.2 YEARS 16.2 YEARS

GENERAL CIVIL CASES GENERAL CIVIL CASES HIGH COURT 3.4 YEARS HIGH COURT 3.4 YEARS COURT OF APPEAL 2.5 YEARS COURT OF APPEAL 2.5 YEARS SUPEREME COURT 4.5 YEARS SUPEREME COURT 4.5 YEARS TOTAL 10.5 YEARS TOTAL 10.5 YEARS FROM HIGH COURT TO SUPREME COURT: 10.5 YEARS FROM HIGH COURT TO SUPREME COURT: 10.5 YEARS

CRIMINAL CASES CRIMINAL CASES HIGH COURT 1.5 YEARS HIGH COURT 1.5 YEARS COURT OF APPEAL 3.5 YEARS COURT OF APPEAL 3.5 YEARS SUPREME COURT 2.0 YEARS SUPREME COURT 2.0 YEARS TOTAL 7 YEARS TOTAL 7 YEARS FROM HIGH COURT TO SUPREME COURT: 7 YEARS FROM HIGH COURT TO SUPREME COURT: 7 YEARS

 Surveys done as part of the Lagos justice sector reform project – show that 3 areas of commerce and industry and the economy are worst hit. (i) Housing (i) Housing (ii) Mortgage Lending (ii) Mortgage Lending (iii) Land Transactions. (iii) Land Transactions.

HOUSING -Reduction in stock of housing in Lagos State -Reduction in stock of housing in Lagos State - Long delays in resolving land and tenant disputes - Long delays in resolving land and tenant disputes Remedies Remedies Citizens mediation centers Citizens mediation centers - Over 8,000 resolved in 1 year - Over 8,000 resolved in 1 year Every Magistrate – become Tribunal chairman Every Magistrate – become Tribunal chairman

MORTGAGE LENDING - Perfection of securities is crucial to mortgage lending - Perfection of securities is crucial to mortgage lending - 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 facility dawn 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 generally Delays in civil disputes generally - Contracts etc. - Contracts etc. - Celtel Shares - Celtel Shares - Chevron Sales - Chevron Sales

WHAT TO DO WHAT TO DO ALTERNATIVE DISPUTE RESOLUTION THE MULTIDOOR SOLUTION SUCCESS STORIES: THE ALEX EKWUEME CASE

WHAT TO DO WHAT TO DO CIVIL PROCEDURE REFORM CIVIL PROCEDURE REFORM  Civil Procedure Rules  More Stringent Costs Regime for Dilatory Tactics  Interlocutory Appeals to terminate at the Court of Appeal  Need for collaborative interaction between CJN, AGF, LEGISLATIVE Heads  Innovative Supreme Court intervention on notorious issues which cause or are deployed to cause delays which cause or are deployed to cause delays

What can be done EFFICIENT COURT SYSTEM EFFICIENT COURT SYSTEM (CIVIL) (CIVIL)  Objectives: Speedy and fair resolution of disputes  Requirements: Knowledge, Independent, Honest Judges (Appt procedures, Training, etc) (Appt procedures, Training, etc)   Resolution friendly Civil Procedure Rules  Adequate Infrastructure & Equipment  Welfare of Judges  Discipline

Conclusion Conclusion  THINKING AND PLANNING PLANNING