The tragic loss of precious and priceless lives and bodily injuries sustained by applicants to the Nigeria Immigration Service (NIS) shook the nation. This was not only as a result of the apparent sheer disregard for the safety of Nigerian citizens but also the revelation of the shameful candid picture of Nigeria’s unemployment scene. As expected, the post-tragedy climate has been to the tune of “… heads will roll”; “NASS shall probe”; “monetary compensation”, etc. A new player in this arena has become “automatic employment.”
In my opinion, such attitudes not only underplay the severity of the tragedy but also detract focus from a fundamental issue- corporate responsibility or the lack thereof in Nigeria, with regard to manslaughter. The above reactions to the tragedy will not be the right target to hit the bull’s eye and a mishit would have dire repercussions. As expected, focus appears to have shifted from this tragedy and responsibility for the mishap seems to be of little or no concern.
This article shall summarily discuss the need for the Nigerian Legislature, specifically the National Assembly (NASS), to seriously consider the passage of a statute on Corporate Manslaughter and focus shall only be on agencies/parts of the Government as Corporations; not incorporated companies, although the same principles apply.
First, certain general provisions that deal with homicide under Nigerian law are worth stipulating:
Section 308 Criminal Code (CC): “… any person who causes the death of another directly or indirectly by any means whatsoever is deemed to have killed that person.”
Section 316 CC: defines certain acts accompanied by intention leading to the death of a person, as murder.
Section 317 CC: provides that any unlawful killing which does not amount to murder is manslaughter.
Although the statutory definitions for homicide appear to be of general application, i.e. the use of phrases like “any person” or “a person”, they practically apply only to natural persons and not corporate/juristic persons. Considering that juristic persons are only artificial and have no minds, it therefore almost automatically follows that even if a juristic person causes the death of a natural person (actus reus), it cannot realistically have the intention to cause such death as it has no mind from which a mens rea can be deduced. Thus, the only fall back for corporate criminal responsibility for homicide would have to be involuntary manslaughter.
Involuntary Manslaughter covers cases where there is no intention to kill or do grievous harm, or which do not fall under Section 316 CC. As succinctly explained by Okonkwo and Naish, “it occurs where a person causes death under such circumstances that he did not intend to kill and did not foresee death as a probable consequence of his conduct but there is some blameworthiness… in his conduct.” It therefore makes rational sense that if corporate entities are to be found criminally liable for homicide, it can and should only be for involuntary manslaughter. As opposed to the context of the offence for natural persons, who act voluntarily or involuntarily, corporate entities do not have impulses- thus, the appropriate name for such offence almost naturally is corporate manslaughter; a terminology that has been adopted in other countries where the offence exists e.g. the United Kingdom (UK).
The Corporate Manslaughter Bill in Nigeria
The present state of Nigerian law(s) on homicide make no provision whatsoever for corporate manslaughter. Consequently, early in February 2013, a Bill for an Act to Create the Offence of Corporate Manslaughter and Matters Incidental Thereto 2013 (“the Bill”) was proposed by late Senator Pius Ewherido, which was inspired by the Dana crash incidence. A public hearing was slated for the Bill, views for and against it were expressed but no significant development or news has been reported ever since. Thus, one wonders- why is there still no law on corporate manslaughter? Do we need more tragic incidents before the legislative step is taken? Has a monetary tag in the guise of compensation replaced the value to be placed on each human life? Or is automatic employment sufficiently retributive for loss of life and injury to person?
I shall address only two (2) of the arguments levied against the Bill. First, the Deputy Senate President was of the view that “The bill is largely hypothetical and futuristic given that Nigeria is not as advanced as the developed world where the laws are common.” Second, some commentators were of the view that the Bill was unnecessary as there were already laws that catered for it. With due respect, these views are infuriating and grossly myopic. How can such Bill be hypothetical when it sought to cater for a clear lacuna in the Nigerian criminal law, evidence of which was reminded by a tragic incident that rocked Nigeria? At what point would Nigeria be said to be “advanced” before value would be placed on Nigerian lives and corporations duly held criminally liable for homicides they cause? What laws already cater for corporate manslaughter (as the Criminal and Penal Codes definitely do not cover this field) and if such laws exist, why was Dana Air not found criminally liable?
The Bill provided inter alia as follows:
Section 1 (1) An Organization to which this Section applies is guilty of an Offence if in the way in which its activities are managed or organized-
(a) Causes a person’s death, and
(b) Amounts to a gross breach of relevant duty of Care owed by the organisation to the deceased;
(2) The organizations to which this section applied are –
(a) A Corporation, or company;
(b) All Ministries, Agencies and Parastatals of Government;
(c) A Police Force;
(d) A partnership, or trade union or employer, association that is an employer.
(3) An organization is guilty of an offence under this Section only if the way in which its activities are managed or organized by its senior management is a substantial element in the breach referred to in subsection (1).
Of particular interest to this discussion is Section 1(2)(b) and (c) above, as these “organisations” are part of the Government. If the Bill is passed into law, all ministries, agencies, government parastatals and the Police Force shall owe a statutory duty of care which is not open-ended, but within reasonable limits as stipulated in the Bill. Thus, the NIS would have been under this statutory duty and if on the facts proved by admissible evidence in Court it is found that a duty of care under the Statute was breached, it would be held criminally liable and sentenced accordingly.
There is no guarantee that the tragic NIS recruitment disaster would not have happened if the Bill had been passed into law. That notwithstanding, it is my firm belief that if we had a law on corporate manslaughter in place, the NIS would have been guided accordingly and deterred from putting the lives of unemployed innocent Nigerians at risk and if they were not so deterred, the NIS and/or the private entity contracted to carry out the recruitment exercise could have been found criminally responsible.
It might be argued that criminal responsibility by way of corporate manslaughter is not as effective as if natural persons are found criminally liable, as the culprits may be imprisoned or sentenced to death (if found guilty of murder). In response, I think that although corporations cannot be imprisoned, they can be punitively fined. Further, a corporation’s principal officers may be sentenced to imprisonment and barred for a number of years after their release, from holding any decision-making role in any corporate entity in Nigeria if they are also found directly or indirectly involved in the criminal act.
Corporate Manslaughter v. Liability for Negligence in Tort
It is tempting to brush the idea of a law on corporate manslaughter aside, if the main means of punishment would be a fine and also on the ground that the law of Negligence already covers the field, insofar as the test for the offence is one based on the existence of a duty of care. Thus, it is worth clarifying that with regard to corporate manslaughter, because it is a criminal offence, the fine levied is paid to the Government because it is an offence against the State. On the other hand, victims of the offence or their beneficiaries (if the victims are dead), would have recourse to compensation in civil Court for the breach of the statutory duty. Therefore, the State resorts to criminal prosecution, while victims resort to civil litigation.
The reality of the possibility of being liable for both criminal and civil wrongdoing should serve as a further deterrent to those to whom the law would apply.
Why is it NASS’s responsibility?
It is NASS’ responsibility because although we are dealing with homicide, which all the Criminal/Penal Codes of all the States cater for, this crime is with specific respect to corporate entities. These entities are legal persons incorporated in accordance with CAMA, government agencies, parastatals, departments, the Police Force, trade unions, etc. These are organisations that are already under NASS’ exclusive legislative purview. It therefore makes legal and logical sense for NASS to legislate thereon.
Further, NASS does not have the legislative competence to legislate on some matters contained in the Criminal/Penal Codes of any of the States in Nigeria or even amend them. Waiting on all the States to follow suit when NASS legislates with regard to the Federal Capital Territory would not only waste time, it would erode the need for uniformity.
There are other Statutes in Nigeria that impose duties on corporate entities for the protection of the public and upon violation, the entities are guilty of an offence e.g. Section 9 of the Consumer Protection Council Act. Thus, if the same logic is applied to corporate manslaughter, these “organisations” ought to have a duty of care in the manner in which their affairs are managed and in the event of a breach, found guilty of an offence.
A law on corporate manslaughter is long overdue in Nigeria especially in light of the recent NIS recruitment tragedy. Such law would apply across the board to both incorporated entities and agencies of the Government. It is insufficient for only individuals to be held liable for crimes committed in their official capacities, whereas the corporations are “permanently innocent” or incapable of murder or manslaughter because they have no minds of their own; the entities ought to be found criminally liable as well (see for example, Section 65 CAMA) and developed States like the UK and even Hong Kong have recognised this need. Nigeria can draw inspiration from such laws and enact a similar law, which is what the Bill sought to achieve.
In due course, detailed academic/intellectual posts on corporate manslaughter law(s) would be published.
Photo Credit: B2C