This Article is written by Makilolo Tamara-Brakemi Blessing, a Law Graduate of Igbinedion University Okada

INTRODUCTION

A student who is suspected of engaging in examination malpractice has frequently faced suspension or expulsion from their university. Such a student is, of course, still presumed innocent in the eyes of the law, according to the constitutional presumption of innocence. So, why punish the student without having regard to the spirit and letters of the law? In this paper, we shall explore the various rights available to a student involved in examination malpractice. However, before going completely into the depth and analysis of this work, I believe it is crucial to give a vivid definition of what examination malpractice entails.

EXAMINATION MALPRACTICE IN NIGERIA

Examination Malpractice is properly defined according to section 1(1)(A) of Examination Malpractices Act 1999 as-

“1. A person who, in anticipation of, before or at any examination-

(a) by any fraudulent trick or device or in abuse of his office or with intent to unjustly enrich himself or any other person procures any question paper produced or intended for use at any examination of persons, whether or not the question paper concerned is proved to be false, not genuine or not related to the examination in question;”[1]

Also, Oko, Sylvanus Ushie Ph.D in his work defined examination malpractice as [2];

“Examination malpractice is any deliberate act of wrongdoing, contrary to the rules of examinations designed to give a candidate an undue advantage. Examination malpractice also known as cheating is the illegal action that students take during their examinations to try to make good grades by cutting corners. Examination malpractice is an act or irregular manner of testing candidates which contravenes the rules and conventions guiding the conduct of examinations.”

Examination malpractice has a serious effect on the educational system in Nigeria and even all over the world. It reduces the integrity and reputation of the school involved, thereby creating doubt in the certificates and past achievements acquired and even the life of the student who engages in such practice. It also goes as far as reducing the academic standard of the university and college, students who engage in this practice have low educational development as they cannot acquire the required knowledge that other students get from learning.

Secondly, students who engage in examination malpractice suffer some disciplinary that may affect their professional and academic lives. Take for example graduates that succeeded in it cannot stand and compete in the same space and skills in competence with others in the society.

The Examination Malpractice Act is the principal legislation that criminalizes examination malpractices in Nigerian institutions. In the case of... Mohammed V. A.B.U Zaria[3] The court held that; examination malpractice is a Criminal offence and was created under the Examination Malpractice Act.

The Examination Malpractice Act made punishment available to those who engaged in this act. It should be noted that it is not only students who engage in this practice, lecturers, teachers, invigilators, etc all do. The punishment is made available under section 2(1)(a-c) of the act.

RIGHTS AVAILABLE TO STUDENTS INVOLVED IN EXAMINATION MALPRACTICE

Notwithstanding the presence of the Examination Malpractice Act in criminalizing offenses of exam Malpractice, there are several rights available to a student who commits examination malpractice. Some of these rights are:

1. The student is entitled to a fair hearing

2. The Student is entitled to be heard in a tribunal that will be constituted in such a manner to secure its Independence and impartiality.

3. Right to Appeal

4. Right to Privacy

Constitutionally speaking, the presumption of innocence is the legal umbrella covering every person accused of committing any offense in Nigeria, including "examination malpractice". The Constitution, in Section 36(1) provides for the fundamental Right to a fair hearing is one of the available rights for a student who engages in Examination Malpractice.

The right to a fair hearing is perhaps the most intrinsic of all guaranteed rights. It is the foundation on which all other rights hold ground because it is at the root of the administration of both civil and criminal justice. It connotes a judicial proceeding that is conducted in such a manner as to conform to fundamental concepts of justice and equality.

The Supreme Court in Kotoye V. Central Bank of Nigeria and 7 Ors[4] Held that:

"Fair hearing anticipated by the constitution implies that every reasonable and fair-minded observer who watches the proceedings should be able to come to the conclusion that the court or other tribunal has been fair to all parties concerned."

In the first place, it guarantees a right to a hearing; that is a right to access to court and tribunals established by law whenever there is any question or dispute As to the rights and obligations of a person or whenever any person is charged with a criminal offense.

In the second place, it imposes a duty on such courts and tribunals to act fairly, fearlessly, openly, and impartially.

The rule of fair hearing is not a technical doctrine, it is one of substance. The question is not whether injustice had been done because of lack of hearing. It is whether a party entitled to be heard before deciding had been given the opportunity of being heard.

The Right to a Fair Hearing is guaranteed in Section 36 of the 1999 constitution. Section 36(1) provides that:

"In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality."

In Peterside V. IMB (Nig.) Ltd, NIKI TOBI JCA[5], following the definition in the Black's Law Dictionary, concluded that the word "civil" in Section 33(1) (the equivalent of Section 36(1) in the 1999 constitution)[6] Is not used in contradistinction to the word "criminal". "Civil rights" as in Section 36(1) connotes human rights and excludes other legal rights i.e. contract, tort, etc.

Fair hearing is entrenched in the two concepts of natural justice. Thus, Section 36(1) is a reduction to the writings of common law maxims. They are:

Audi Alterem Partem

Nemo judex in causa sua

This rule demands that each party involved in a case must be allowed to present and state his case.

Hence, all the parties must be given notice of the hearing to have the opportunity to present their cases before a decision is made. He must be given the full statement of the facts against him and evidence relied upon must be made available to him.

In the Nigerian case of Garba V. University of Maiduguri[7], Oputa JSC. Explained the rule thus:

"God has given you two ears, hear both sides" Nemo judex in Causa sua

The Law prescribes that a person is entitled to a fair hearing in a court of competent jurisdiction or a tribunal as required by Law. It implies that, where a person engages in Examination Malpractice, he is entitled to a fair hearing either by the University disciplinary Committee or may be subject to the Court's proceedings as required under Section 14 of the Examination Malpractice Act either way, he must be heard. Failure to grant him a fair hearing may nullify the entire action against him for malpractice by the institution.

Also, the tribunal must be constituted in such a manner to secure its Independence or impartiality. It means that the Tribunal or court must not be stained with any blood of impartiality, as the slightest stain might nullify the entire proceedings.

The practical implication of this is that, in the case of a tribunal in the University, whereby you have the same set of people who caught the Student engaging in Examination Malpractice, and those same set of persons still preside over the Tribunal to determine whether or not the Student is guilty of committing malpractice is a concrete ground to nullify the entire proceeding as it will amount to been a judge in your case (Nemo judex in causa sua). See the case of AHMADU BELLO UNIVERSITY, ZARIA V. RASHIDAT.[8]

Students who engage in this also have the right to appeal after the case has been heard if they are not satisfied with the judgment or decision of the tribunal set up and they must follow the steps laid down for appeal; review the appeal, gather evidence, draft the appeal letter, submit the appeal, attend the hearing and thereafter wait for the outcome. Successfully following these steps, students can navigate the appeal process and seek a fair resolution in their favour.

It is important to protect the privacy of students involved in examination malpractice cases for several significant reasons. Safeguarding their privacy upholds their rights and ensures fairness in the investigative process.

Preserving confidentiality in such cases prevents unnecessary stigmatization and protects the reputation of students until any allegations are proven. In addition, maintaining privacy guards against potential biases or prejudices that could arise from premature disclosure of information. Overall, respecting the privacy of students involved in examination malpractice cases is crucial for maintaining the integrity and fairness of the educational system.

Lastly, it is important for institutions to always protect and respect the rights of a student who engages in Examination Malpractice. The institutions or examination body should avoid hasty expulsion of students caught in the act of exam Malpractice. The Law requires that "an accused person is presumed innocent until proven guilty" by the court of Law.

In conclusion, In Nigeria, students involved in examination malpractice have key rights that are important to protect. These rights include confidentiality during investigations, the right to present their case, access to a fair appeals process, and protection against unfair treatment or biases. Upholding these rights ensures that students are treated fairly and can have the opportunity to defend themselves in cases of alleged malpractice. It is essential to respect these rights to maintain fairness.

References

[1] Examination Malpractices Act 1999

[2] Oko, Sylvanus Ushie Ph.D, ‘Examination Malpractice: Causes, Effects and Possible Ways of Curbing the Menace’ (2016) https://www.arcjournals.org/pdfs/ijmsr/v4-i1/6.pdf accessed 08 September 2024.

[3] [2014] 7 NWLR (PT. 1407) 500 CA

[4] [1985] 1 NWLR (pt.98) 419

[5] [1993] 2 NWLR (PT. 278) 710

[6] Constitution of the Federal Republic of Nigeria 1999 as amended

[7] [1986] 1 NWLR pt. 18, 550 SC

[8] [2021] LPELR 55101(CA)