Published in ThisDay Newspaper November 18, 2014
TEMILOLUWA OSINOWO LL.B (HONS), B.L
In light of the recent building collapse in the Ejigbo area of Lagos State which resulted in the death of dozens of people, there have been calls from many concerned quarters about a form of relief for the victims of the mishap.
Although the Nigerian legal climate allows for the civil redress of wrongs done by a corporate entity, the provisions do not entail criminal liability.
Corporate manslaughter is a criminal charge against organisations whereby the outcome will be a conviction for involuntary manslaughter. It enables the punishment and censuring of corporations that are found to be guilty of culpable conduct that leads to a person’s death. This extends beyond any compensation that might be awarded in civil litigation or any criminal prosecution of an individual (including an employee or contractor).
The senate on the 23rd of September passed the ‘Bill For An Act To Make Provisions Creating The Offence Of Corporate Manslaughter And For The Matters Incidental Thereto 2013’ (the Bill). This was sponsored by the late Sen. Pius Ewherido in February, as a result of the circumstances that lead to the 2012 Dana airplane crash which indicated that decisions made by the management may have resulted in the crash.
Although the honourable members of the Senate said that the passage of the Bill was an expression of solidarity to their deceased colleague, one cannot but wonder whether the recent building collapse and agitations which arose thereafter led to the passing of the Bill which has been before the National Assembly since 2013.
At the time of its presentation, there was a division in the chamber as some senators wholly applauded the bill whilst others stood against it on the basis of “incoherent content”, the inability to jail organisations, and the already “adequate” provisions for manslaughter in the criminal laws of Nigeria. Some even went as far as saying that the bill was “largely hypothetical and futuristic”
Similarly, academicians have argued that company fines ultimately punish shareholders, customers and employees in general, rather than culpable managers. (Clarkson 1998)
Though the Bill scaled second reading on Feb. 7, 2013, no progress was made on it up until now. The Bill is currently before the President, Goodluck Jonathan, for his signature before it will become law.
Late Sen. Ewherido who died on June 30, 2013, had said that the bill was to protect citizens against future occurrences similar to the DANA air crash. He explained at the time that the bill aimed to curtail negligence by organizations which may lead to the death of a staff and other innocent victims. (www.nass.org)
The rationale behind this law is a commendable one as it seeks to fill the lacunae in the Criminal Code. Section 308 of the Criminal Code states that “except as hereinafter set forth, any person who causes the death of another directly or indirectly by any means whatever is deemed to have killed another person”. Clearly, this only deals with natural persons and not juristic persons (corporate entities), and it is for this purpose that the Bill was put together.
It should be pointed out here that the passage of the bill into law will not preclude any person or group of persons from instituting civil suits against any corporation with the hope of getting some form of relief vis-a-vis compensation.
The Bill followed greatly in the direction of the Corporate Manslaughter and Corporate Homicide Act 2007, which is applicable in England and Wales.
The common law principle in the UK hitherto, was that corporate liability will only be incurred in respect of crimes punishable by a fine. The rationale for this at the time was that a company being an artificial person cannot be incarcerated; neither can it be given a death sentence similar to a natural person.
However, the changing times have caused more attention to be focused on organisations, holding them more accountable for the littlest breach in health, safety and environmental standards. This is because many now see that the lives of employees [and members of the public] are largely determined by their workplaces.
This position changed in England and Wales following the Zeebruge Ferry Disaster, wherein the court rejected the argument that manslaughter can only be committed by a natural person. The court came to this conclusion by following the doctrine of identification, otherwise known as the alter ego doctrine.
This doctrine finds a company personally, and not vicariously liable, for mens rea offences by identifying persons within an organisation whose conduct and mental state in discharging their duties is sufficient to impute liability to the company. This applies however only when the employee is a controlling officer of the organisation. (Tesco Supermarkets Ltd. v. Natrass )
The discuss held as a result of the aftermath of the Zeebruge Ferry Disasterled to the setting up a committee which eventually recommended a law to indict companies of criminal offences. What followed was the passing of the Corporate Manslaughter and Corporate Homicide Act 2007 (the Act), which inter alia concentrates on the liability of an organisation based on the involvement of its senior management (minds of the company) in a gross breach of a duty of care which causes death.
One of the criticisms of the Act is that it deals with corporate liability for death only and not corporate liability for injuries. It leaves one to wonder what happens to an organisation that causes grievous bodily harm to an individual based on certain circumstances which otherwise could have led to death.
It has been proposed that the underlying jurisprudence of the Act should make companies not just liable for the harm caused by individual members of the company, but for the adequacy of the steps taken to ensure such harms do not recur. (Michael Jefferson 2009)
One notable point is that the Act is not restricted to companies alone, but extends to government agencies, trade unions, and other formally registered associations.
Instead of following the procedural approach as done in the England and Wales, one would have expected that it would have been more appropriate to amend the Criminal and Penal Codes to include Corporate Manslaughter as is proposed in New Zealand.
In New Zealand, there have been agitations since 2012 following the Canterbury earthquake and the Pike River Mine disaster for an amendment of the 1961 Crimes Act. Nothing has however been done so far.
Even in India, where the outcome of the Bhopal case (the world’s worst industrial disaster) would have led one to believe that a corporate manslaughter law would have been passed, there is still silence on the issue on the part of the Indian government. This have caused for calls from various quarters, for a global structure of law which would hold international corporations responsible for harm caused in a country where it has local presence, even though the laws of that country do not provide for such. (Professor Martin Parker)
In conclusion, this great step taken by the legislature is quite laudable. Though it may be coming late in the day, one can only hope that it serves to deter organisations from breaches in their duties, as well as to ensure better health, safety, and environment laws and adherence thereto within their corporate structure.
Though this writer has been unable to get a look of the Bill in its current form, it is this writer’s recommendation that the punishment given to organisations found guilty of corporate manslaughter should carry only a minimum and not a maximum sentence, as this would allow the courts ‘fine a guilty organisation to dissolution’ where indeed necessary.