I hereby propose a law on corporate killing or corporate manslaughter in Nigeria. Why is a corporate killing law needed?

We have had incessant reports of collapsed buildings and oil pipe explosions killing innocent Nigerians by the thousands. (See attached reports)

It is increasingly recognized that corporations should be subject to criminal law in much the same way as individuals. However, charges for corporate manslaughter – whereby a company is convicted of involuntary manslaughter – are notoriously difficult to sustain.

The common law position is that it is necessary to be able to identify the “directing mind of the company” (in one of its directors) who must be found to have acted in such a “grossly negligent” manner, that he or she had the mens rea (state of mind) required to commit the offence of manslaughter.

This position has led to practical difficulties in securing convictions for corporate manslaughter. While this identification of the company’s directing mind may be relatively simple within smaller companies, it is usually extremely difficult to identify an individual director or board member with the requisite degree of control over a large corporate entity. 

Thus, arguably, the identification doctrine is least likely to work where it is needed the most; the larger the company, the greater the number of deaths that are likely to occur should its operational systems fail or safety policies prove inadequate.

That is why it is necessary to have a new law to make it easier to prosecute companies accused of causing death because of negligence - The Corporate Manslaughter and Corporate Homicide Act.

This would clarify the criminal liabilities of companies or organizations where serious failures in the management of health and safety result in a fatality. Companies can then be found guilty of corporate manslaughter as a result of serious management failures resulting in a gross breach of a duty of care

Under the new offence of corporate manslaughter, employers may face large fines if it is proved they failed to take proper safety precautions.  Under the new law, Proof is no longer needed that a single senior official was to blame, only that senior management played a role. 

Under the new legislation companies may face higher fines of up to 10% of turnover, or more in the most serious cases. And for the first time the Corporate Manslaughter and Corporate Homicide Act will make government bodies liable for prosecution by lifting the veil of state immunity.

A law on corporate killing or corporate manslaughter ensures improved justice for victims of corporate failures; it will send out a very powerful deterrent message to those organisations which do not take their health and safety responsibilities seriously.

Only by creating the possibility that directors will go to jail will there be a change of culture in the construction industry.  How many companies have been successfully prosecuted with the repeated disasters such as the collapse of buildings?

The new law should provide a considered analysis of the issues relating to corporate killing and create two new statutory offences: (i) a statutory offence of corporate manslaughter for corporate entities; and (ii) a secondary offence for corporate managers who play a role in the commission of the corporate offence.

It should create potential personal liability for directors and other managers of companies in circumstances where an offence has been committed by an undertaking, expand the class of people who may be held personally liable to that of directors, managers or other similar officers within the undertaking or persons who purport to act in such a capacity and create a statutory presumption that those occupying certain positions are deemed to be responsible for the acts of the company. 

Under the new law, a director, manager, other similar officer or person purporting to act in such a capacity can be deemed to be guilty of an offence where: (i) an offence has been committed by the undertaking; and (ii) the duties of the person concerned included making decisions that, to a significant extent, could have affected the management of the undertaking.

Prosecutions against individuals can also be taken and used in the case of accidents at work and provide that a prosecution may be taken against any person within an undertaking, occupying a managerial position or otherwise, where it can be shown that he or she has engaged in conduct which intentionally or negligently created a substantial risk of death or serious harm to another.

Corporate Killings in Nigeria

Death toll rises in Nigeria building collapse

Nearly 30 people are now thought to have died after a 4-storey building collapsed in the Nigerian city of Lagos. More bodies, some alive, and others dead, are still being recovered from the wreckage in the Ebute Metta area of Lagos after the apartment block suddenly gave in on Tuesday evening, local time.

The building also housed restaurants and 18 shops on the ground floor and rescuers are unsure of how many people remain trapped below the ground.

The Nigerian Red Cross said it believed around 75 people may have been inside, but survivors are claiming the death toll is considerably higher. So far, 50 survivors have been hauled from the wreckage, and still, three days after the collapse, voices are being heard from below the rubble.

"People have survived in this kind of situation for up to five days,” Timothy Oladele, the Chairman of the Nigerian Red Cross told Reuters, “We are just in the third day in our own case and by God's grace we will find some alive."

The building, in Nigeria’s largest city, is thought to have been just three years old, and officials are blaming poor construction for the collapse. Local media are reporting that city planners only gave permission for a two storey building on the site, not four. The owner of the construction company is believed to have fled; Lagos Governor Bola Tinubu pledged to punish the rogue developer. ”We know their other buildings and definitely, they will not go unpunished," he told local press today.

The sprawling industrial city of Lagos has a history of poor construction and maintenance. In March 2006, one of the city’s tallest buildings, damaged after a fire, collapsed during a thunderstorm.

Owners of Collapsed Building in Nigeria to Face Prosecution
By Gilbert da Costa Abuja 20 July 2006
 
The governor of Nigeria's Lagos state says owners of a four-story apartment building, which collapsed Tuesday, killing at least 20 people, will be prosecuted.  Rescue efforts continue nearly 48 hours after the incident, though at a much slower pace.
 
People look through the rubble of a four-story apartment building that collapsed overnight in Lagos, Nigeria, Wednesday July 19, 2006
Rescue workers battled Thursday to reach those still trapped in the wreckage of the collapsed four-story building in Lagos.  The leader of the Red Cross team, Umar Maigira, told VOA that rescue efforts have been severely hampered by the withdrawal of equipment belonging to a local construction company.

"Julius Berger withdrew its earth-moving equipment yesterday," Maigira said. "So they are using crude tools as usual.  Work is going on but using crude tools; sledge hammers, shovels and diggers, which is what our volunteers and the community have been doing since last night.  But they have not succeeded in fishing out anybody from yesterday up till this morning.  But they worked throughout the night."

The Red Cross official was certain that there were still survivors trapped underneath the rubble, nearly 48 hours after the building came crashing down.

"We are still expecting people, even those that may be alive under the rubble, so that is why the community and the Red Cross are still trying," Maigira said. "I do not know what the government is going to do today.  If they are returning the equipment that will be good for everybody.  Because those that are dead have started smelling.  So it will be good if we can have the crane to see if we can evacuate the dead."

Experts say many buildings in Nigeria are constructed with substandard materials and regulation is weak.  Dozens of people have died in collapsed buildings in Africa's most populous country in the past few years.  Bayo Adeola is a structural engineer in Lagos.

"Behind all this is provision of housing.  If each person still needs to struggle to build his own house with inadequate money, he hardly can pay for good quality," Adeola said. "If the industry is not well regulated and all sorts of charlatans can be contractors just because you have access to people who are in a position to give you contracts, then we are going to keep on having this issue of collapsed houses."

Red Cross officials say 20 bodies have been pulled out of the wrecked block of apartments and shops where about 100 people lived.  At least 50 survivors have been rescued

List of pipeline accidents in Nigeria

1998: At Jesse, Nigeria in the Niger Delta in Nigeria, a petroleum pipeline exploded killing about 1200 villagers, some of whom were scavenging gasoline. The worst of several similar incidents in this country.[1] (October 17, 1998)
2000: Another pipeline explosion near the town of Jesse killed about 250 villagers.[1] (July 10, 2000)
2000: At least 100 villagers died when a ruptured pipeline exploded in Warri.[1] (July 16, 2000)
2000: A leaking pipeline caught fire near the fishing village of Ebute near Lagos, killing at least 60 people.[1] (November 30, 2000)
2003: A pipeline punctured by thieves exploded and killed 125 villagers near Umuahia, Abia State.[1] (June 19, 2003)
2004: A pipeline punctured by thieves exploded and killed dozens of people in Lagos State.[1] (September 17, 2004)
2006: An oil pipeline punctured by thieves exploded and killed 150 people at the Atlas Creek Island in Lagos State.[2] (May 12, 2006)
2006: A vandalised oil pipeline exploded in Lagos, Nigeria. Up to 500 people may have been killed.[3] (December 26, 2006)
2008: 2008 Ijegun pipeline explosion (May 16)

NIGERIA PIPELINE DISASTERS

May 2006: At least 150 killed in Lagos
Dec 2004: At least 20 killed in Lagos
Sept 2004: At least 60 killed in Lagos
June 2003: At least 105 killed in Abia State
Jul 2000: At least 300 killed in Warri
Mar 2000: At least 50 killed in Abia State
Oct 1998: At least 1,000 killed in Jesse

For further reports see http://www.thenigerialaw.com/forum/index.php?topic=241.0

Written by Daniel Elombah, (LLM) London

afamefuna@elombah.com

Partner, SIMPHIL INTERNATIONAL

www.simphil.com

International Consultants on Corporate Governance and Money Laundering