CHAPTER ONE
GENERAL INTRODUCTION
1.1 Background to the Study
Law is an instrument of social control and criminal law above all has the greatest impact on the individual‟s way of life1. When criminal law is set out as a means of correction and control, as is the case under this thesis (where the role of law in the combat of examination malpractice is examined), it takes on a functional approach. It is therefore not just a question of what are the substantive provisions of law with respect to such conduct, but questions relating to the sociological and criminological aspect of law as well as the legal analysis of the efficacy of these laws are all pertinent. This fact led Okonkwo C. O to state that:
The more, fundamental question than what conduct is criminal are for instance, what is a crime? Why is a particular type of conduct made criminal? What is the object of the criminal law? How does the community react to the criminal act, why does it react the way it does? These and many other questions inevitably arise from a consideration of the criminal law………. One cannotignore its sociological conduct, because to every criminal trial (though it is not always recognized by the participants) some of these issues are present.2
This present research therefore takes the path of a more analytical insight which goes beyond an answer to the question of what is the law on examination malpractice. The research seeks to examine the functional and sociological aspect of the laws on examination malpractice with a view to assess the effective use of these laws to tackle the problem.
- Karibi Whyte A.G (2005) History and Sources of Nigerian Criminal law. Spectrum books limited. Ibadan. p. 265
- Okonkwo C.O and Naish (2009) Criminal Law in Nigeria, Spectrum books limited, Ibadan, Second Edition p. 18
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The research topic: “An Appraisal of the Role of Law in Combating Examination Malpractice in Nigeria: A Case Study of Ahmadu Bello University, Zaria”, is such that encompasses many concepts. One of such concepts central to this research is the concept of “law”. The term does not have a universally accepted definition but has rather been defined differently with more universal characteristic that can be discerned through philosophical analysis.3
Scholars of law provided definitions from different perspectives which led to the emergence of schools of thought discerning every group‟s perspective. One of such schools, the Positivist School, headed by John Austin defined law as the command backed by threat of sanctions from the sovereign, to whom people have the habit of obedience.4The other major school of thought in the definition of laware the Naturalists. The scholars under the Naturalist School define law from the natural and moralistic perspective with regards to values and morals. Concepts like justice, liberty, and human right are within the board spectrum of moral values and this forms part of the naturalist scheme of moral values which can either be presented as a fundamental substratum underlying or as body of rules, principles over-riding positive law of a state.5 Natural law scholars as Jean-Jacques Rosseau says law reflects essentially morals and unchangeable laws of nature.6 likewise, Lon Fullar an outstanding Naturalist said that the connection between law and morality is a necessary one and that there is need for rules of law to comply with internal morality7.
In relation to our research, the definitions above reflect one of the essences of the research because of the functional role of law identified in the definitions. Thus, Karibi Whyte opined that it is the rights, duties and privileges prescribed by the society which determine the conduct that
- Stanford Encyclopedia of Philosophy, “The Nature of Law http://platostandford. 27th august, 2015 at 5.45pm
- Lord Llyod of Hamstead (1976), Introduction to Jurisprudence, Steven & Sons, London. Fourth Edition p.39.
- Ibid p.93
- Ibid pp. 88-89
- Ibid
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should be proscribed or excused and conduct that should be permitted.8 In addition, he stated that the formulation of legal rules is to a very large degree based on ethical consideration and these on their part have their root in the religious, political, economic and moral foundation of the society.9 It follows therefore, that law is not an empty set of rules without focus, but actually created deliberately to reflect the values and needs of the society. Thus, Dambazau A.B submitted in this respect that: “we can equally submit from the analysis of law that law provides the conceptual framework for the development of every society by providing the set of rules with which the society can bring about the needed and desired change”.10
The Scholars shown above expounding the meaning and nature of lawdidanalyse the concept from the point of view of societal values, ideals and development. Law is thus perceived as an instrument of societal development and a means to achieve desired goal. If the desired change or goal is the correction of a societal problem, it means that such correction is the goal/object set for law. Therefore, in relation to this research, the object/ goal of law is to correct/ control the societal anomaly of examination malpractice.In order for law to attain this objective, there are factors which go beyond the abstract provisions of the law and they must be considered for an adequate understanding of this topic of research. The importance of this type of consideration was clearly reiterated by Dambazau A.B when he stated that: “it is therefore important to always relate law to the socio-cultural environment in which it operates rather than relying solely on its strict legal interpretation”11. Thus, the relevant point here is that, in view of the functional role of law under this research, it is important to go beyond the abstract strict legal provisions of the laws on examination malpractice. The research cannot appraise the role of law in controlling the
- Karibi Whyte A.G (2005). op cit. p.263
- Ibid
- Dambazau A.B (1994) Law and Criminality in Nigeria: An Analytical Discourse. University Press Plc. Ibadan. p.14
- Ibid p.1
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crime of examination malpractice if the analyses of those factors which can affect the control of the problem are not put into consideration. Some of these factors have been put forward by legal scholars as follows. One of such factor is the criminological aspect of law. The study of criminology is relevant in ascertaining the extent of the use of law in any crime control.12 This is largely because criminology is afield which is concerned with the study of delinquent and criminal behaviour, crime control and prevention, and criminal treatment and rehabilitation.13 A careful study of criminology as it relates to the problem of examination malpractice would facilitate an understanding of the problem and the measures to bring about control/ prevention of the crime as it is our aim under this research.
Another factor which needs to be analysed in the consideration of the role of law in the control of the problem of examination malpractice is the socio-cultural factor which can be discernable from the society‟s economic, religious, political and moral spheres. Thus, KaribiWhyte stated that: the formulation of legal rules is to a very large degree based on ethical consideration, and these on their part have their roots in the religious, political, economic and moral foundation of the society.14 In essence, the criminal law of a society is a reflection of the society‟s culture, which is why it is important to put these socio-cultural factors into consideration, so that, we may find out if the law can control the societal problem it was created to tackle.
Okonkwo C.O suggested some factors which can affect any criminal law and therefore they need to be understood. He stated these factors to be: the context of criminal law; criminal law and its administration; and judicial interpretation of the crime”.15In our enquiry into the question of efficacy of the law on examination malpractice, we have to carry out the enquiry from some
- Sirohi J.P.S (2007) Criminology and Penology. Allahabad law Agency, Faridabad. 6th Edition p.13
- Ibid
- Karibi Whyte A.G (2005) op. cit p.263
- Okonkwo C.O (2009) Op cit. p.23
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perspective and foundation. An analysis of the context of the law and its judicial interpretation is an index to show the ability of such law to control the crime in question.
Examination malpractice being the problem for which this research seeks a solution through law is also worthy of some explanations. It has been noted that examination malpractice is now a prevalent practice in Nigeria which cuts across the various levels of the education sectorand the problem has attained a frighteningly sophisticated proportion to the extent that it is just a little short of being institutionalized.16 Examination malpractice has plugged the nation into dare problems: there is appalling falling standard of education; increase in corruption in public offices; creation of economic losses to the nation; culture of dishonesty and impunity; and inability of graduates of institutions to use knowledge acquired to get jobs.17
Historically, the first reported case of examination malpractice in Nigeria was in 1914, when there was leakage of question papers in the Senior Cambridge Examination.18 And since 1914, the menace has been on the increase with officially reported cases within the West African Examination Council (WAEC) alone in 1963, 1967, 1970, 1973, 1974, 1979, 1985, 1987, 1991,1992 ,1993 and 1995.19 Particularly, there was serious case of leakage of WAEC question paper in 1997 and the outcry in the wake of this incident led to the setting up of tribunal by the Federal Government to investigate the mass leakage and suggest possible measures to forestall future occurrence.20 The Tribunal recommended severe punitive measures and as a follow up, the Federal Government promulgated the Examination Malpractice Decree No. 20 of 1984 and later No. 33 of 1999.21 The 1999 Decree was adopted as an Act of the National Assembly upon the
- Adebayo Hauwa. The Nature and Characteristics of Examination Malpractice Among Nigerian Tertiary Institution. http://diethauwa blogspot.com on 8th November, 2014 at 1.50pm
- Ibid
- OluAina (2009) Assessment and Contemporary Issues in Education. O.A.U Press, Ile-Ife p.27
- Nsisong A. Udoh. Remote Causes and Counseling Implication of Examination Malpractice in Nigeria. www.studentpluse.com on 6thNovember , 2014 at 3.30pm.
- Ibid
- Ibid
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nation‟s return to democratic rule. The Act is now cited as Examination Malpractice Act, Cap E15, Laws of the Federation of Nigeria.
In addition to the Act above, there are provisions in the various Criminal Code Laws and Penal Code Laws of the various States in Nigeria with respect to offences such as cheating and impersonation which can be used in the prosecution of suspected cases of examination malpractice. This was the court‟s position in the case of NnamdiAzikwe University vs Nwafor22. Likewise, there are internal rules/regulations created to curb examination malpractice in the various higher institutions of learning and examination bodies like WAEC, NECO and NABTEB.
In view of the foregoing, we can submit that there are laws/rules created as measures by Government to bring about the control of examination malpractice. The problem which forms the focus of this research is therefore not the problem of non-availability of relevant laws /rules to curb examination malpractice; rather, our focus is on those problems which have forestalled the effective use of available laws / rules.
1.2 Statement of Problem
In a bid to use law to control and combat the menace of examination malpractice in Nigeria, laws and rules have been put in place. These are the Examination malpractice Act;23some provisions under the Penal and Criminal Code Laws of the various States of the federation which cover some offences committed during examinations; and the various institutional/ administrative rules/ regulations of institutions of higher learning or examination bodies for the control of
- (1999) NWLR (pt. 585) 116 CA.
- Cap E15, Laws of the Federation of Nigeria ( LFN), 2004.
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examination malpractice.24 Despite the availability of these laws and rules, the problem of examination malpractice is still prevalent and there are even problems which have hindered the effective use of these laws and rules. There is the problem of lack of application and enforcement of available laws on examination malpractice which is caused by lack of awareness of the fact that examination malpractice is a crime which ought to be reported to the police for further investigation and possible prosecution. It is as a result of the inability of institutions to report these cases to the police that prosecution rarely take place and thus, laws on examination malpractice do not get to be applied.
There is a second problem which involves students‟ claim to right to fair hearing. These students claim that institutions of higher learning are not vested with powers to determine cases of examination malpractice against them being criminal in nature because it would amount to a violation of their constitutionally guaranteed right under section 36(4) of the 1999 Constitution of the Federal Republic of Nigeria.
This challenge by students of the use of institutional disciplinary powers in cases of examination malpractice creates uncertainties as to the exact extent of the university‟s exercise of its disciplinary powers in examination malpractice cases.
1.3 Aim and Objectives of the Research
The aim of this research is to assess the extent to which laws and rules on examination malpractice have been able to bring about the desired control of the menace of malpractice by
- For instance, in A.B.U Zaria, there is the Examination Management / Regulation created by the Senate and signed into use on 28th May 2011.