Examination Malpractice and the Disciplinary Authority

Introduction

Examination malpractice in Nigeria is seen and viewed as a major challenge to examination bodies and also school administrators, the educational system, and society at large.

It is expedient in this regard that the terms ‘examination’ and ‘examination malpractice’ be defined.

‘Examination’ is regarded as a means of measuring and evaluating the level of knowledge or cognitive abilities of students within a specified period. The examination is also the instrument used for the assessment of an individual’s knowledge and skills both in general and specific areas of study.¹ Examination is also a formal test that students take to show their knowledge about a particular subject often done in written or oral form.² Examination is the avenue to which one’s intellectual and cognitive abilities and proficiency of knowledge are put to test after or within a specified period of receiving information orally or in written form and judging the adequacy of these properties possessed by way of evaluation. This is to know how well a student has comprehended and retained such information as relevant to what he has learned.

‘Examination malpractice’ is defined by the Examination Malpractice Act, 2004³ (hereafter referred to as the ‘Act’) as ‘…an act which constitutes an offense under this Act’ is what the law says examination malpractice is. The act of examination malpractice gives the individual an undue advantage in the process of examination to achieve ‘success without putting in the work. Examination malpractice is defined as any deliberate act of wrongdoing contrary to the rules of an examination designed to give a candidate an unfair advantage or able frequently, place a candidate at a disadvantage⁴. In all, examination malpractice is a dishonest act and it is fraudulent.

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The shades and cries on the act, ‘examination malpractice’, virtually taking place at all levels of the Nigerian educational system, is nothing but a reflection of the decay in the value system of the society. A country that has a high prevalence of examination malpractice stands to lose its international credibility. Certificates birthed from such country will be treated with utmost suspicion and doubt. The spate of malpractices in the health sector, auctioning and miscarriage of justice by the Judiciary, mindless looting of the public treasury, electoral fraud, the regular collapse of buildings designed by ‘engineers’ and ‘architects’ and sale of fake drugs by pharmacist all have root in the educational system bedeviled by examination malpractice⁵. Some could not even spell their names as the circumstances may be.

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Nigeria as a society celebrates mediocracy and views cheating as being smart. How success is achieved doesn’t matter. The end justifies the means instead of the means justifying the end. Examination Malpractice is akin to corruption. It is appalling that not only students are involved in examination malpractice, but ‘schools and ‘miracle centers’’, parents, teachers, and examination officers all conspire with students to perpetrate the offense of examination malpractice.

This article intends to discuss the appropriate disciplinary authority as it relates to examination malpractice given the Act and case laws emphasizing and supporting the provisions of the Examination Malpractice Act, 2004.

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Examination malpractice indeed takes different forms as to what constitutes an offense under the Act. The Act is divided into two parts; part (I) which creates the offenses of examination malpractice and part (II) for miscellaneous the Examination Malpractice Act, 2004.

The offenses as provided under ssections1 to 12 of the Act include:

Section 1: Cheating (fraudulent trick or device or pretense with intent to cheat, buy, sell, or procures any question paper).

Penalty: Any person guilty of an offense under Section 1(1a-d) of the Act shall be liable on conviction.

1. If under 18 years of age to a fine of N100, 000 or jail term not exceeding three years or both.
2. If 18 years and above (principal, teacher, invigilator, supervisor, examiner, agent, or employee of the examination body, such person is liable to a four-year jail term without the option of a fine.

Section 2: Stealing (appropriates or takes a question paper and answer sheet or script of other candidates.

Penalty: Liable on conviction to a fine of N100, 000 or imprisonment not exceeding three years jail term or both.

Section 3: Impersonation (false representation as a candidate)

Penalty:

1. if Under 18 years of age, he/she is liable on conviction to a fine of N100,000 or imprisonment not exceeding three years jail term or both.
2. In the case of the principal, teacher, invigilator, examiner, agent, or employee of the examination body, such person is liable to a jail term of four years without the option of a fine.
3. In any other case, three years jail term without the option of a fine.

Section 4: Disorderliness at Examination (leaving the examination hall to mix with any other person, with intent to cheat or secure unfair advantage).

Penalty: Fine not exceeding N50, 000 or jail term not exceeding three years or both. In addition, such candidates will not be allowed to re-enter the examination hall to continue with that examination. Where the offense has to do with a person unlawfully communicating any information to the candidate with intent to aid such candidate, he/she shall be liable on conviction to a fine of N100,000 or three years jail term or both for a person under 18 years. For others, it ranges from three to four years without the option of a fine.

Section 5: Disturbances at Examination (possession or use of any offensive weapon or other material to incite other people to act in a disorderly manner to disrupt the conduct of the examination).

Penalty: If under 18 years of age, he is liable on conviction to a fine of N100, 000 or a jail term not exceeding three years or both. In another case, a jail term of four to five years without the option of a fine.

Section 6: Conduct at Examination (any act of misconduct or failure to obey any lawful order of the invigilator, supervisor, or agent of the examination body).

Penalty: Liable on conviction to a fine not exceeding N50, 000 or jail term not exceeding three years or both.

Section 7: Obstruction of a supervisor, invigilator, or agent of the examination body in the performance of his duty.

Penalty: If under 18 years of age, liable to a fine of N100, 000 or jail term of not exceeding three years or both. In other cases, imprisonment for a term of four to five years without the option of a fine.

Section 8: Forgery of Result Slips or Certificate.

Penalty: If under 18 years of age, he is liable on conviction to a fine of N100, 000 or jail of three years or both. In other cases, imprisonment for a term of four to five years without the option of a fine.

Section 9: Breach of Duty (A person in charge of the conduct of an examination without reasonable cause, before, during, or at any time thereafter fails or performs that duty fraudulently, negligently, or perversely).

Penalty: Fine not exceeding N50, 000 or jail term not exceeding three years or both. If employed to mark examination papers, alters, or tamper with scores, he is liable on conviction to a jail term of four-five years without the option of a fine.

Section 10: Conspiracy, Aiding, etc.

Penalty: If under 18 years of age, he is liable to a fine of N100, 000 or a jail term not exceeding three years or both. In other cases, imprisonment for a term of four to five years without the option of a fine.

Section 11: This section talks about the conviction for an alternative offense. Where a person is charged for an attempt to commit an offense but there is evidence that establishes the commission of another full offense, the offender shall not be acquitted, but shall be convicted of the offense and punished accordingly.

Section 12: Deals with offenses by corporate bodies. The director, secretary, or other similar officers of the corporate body shall be deemed to have committed that offence and shall be liable and punished accordingly in line with the criminal liability of a corporate body.

Jurisdiction/power to determine the guilt of erring student as it relates to Examination Malpractice under the Act

Section 14 Of the Act gives power to Courts of Law to try students for the offence of examination malpractice. Section 14 is reproduced below:

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Jurisdiction

Subject to section 13 of this Act, the Federal High Court (in this Act referred to as “the Court”) shall have-

(a) jurisdiction to try offenders under this Act;

(b) Power, notwithstanding anything to the contrary in any other enactment, to impose the penalties provided for offences in this Act.

The provision of the Act is clear and unambiguous. No institution has the power to try any offence of examination malpractice except the Court of Law.

In the case of Olutayo v. Federal University of Technology, Minna & Ors,⁶ the Court held that Examination Malpractice is an offence under section 1 and punishable under section 1(2)(a) of the Examination Malpractices Act, Cap. E15, Laws of the Federation of Nigeria, 2004 with a fine of N 100,000 or imprisonment for a term not exceeding three years or both such fine and imprisonment where the person is under eighteen years.

Thus, in a more recent case in which Judgement was delivered 13th Day of July 2021 by the Court of Appeal, Kaduna Division on Examination Malpractice between Ahmadu Bello University, Zaria v. Rashidat Suleiman Obanla,⁷ the fact of the case is that around 2013, a lady/student of Ahmadu Bello University in Mathematics Department who was supposed to graduate in 2013 was not given her certificate of graduation, instead, she was informed that she has been expelled by the school since 2012 by a letter of expulsion dated 27th November 2012 which was, as a matter of fact, not given to her at all. It was added that the expulsion was a result of an incident that occurred when the lady/student was at the 300 level in the 2011/2012 academic session when in an examination, she made rough jottings on her examination card and it was adjudged to be a cheating note. Although she appeared before a disciplinary committee, she was not allowed to defend herself and she was not even informed about her expulsion.

Well, fortunately, she sought legal advice and subsequently approached a Court of law. The Court held that she was not only denied a fair hearing but that the disciplinary committee that expelled her was not the right authority to determine punishment for examination malpractice. The matter was brought on appeal before the Court of Appeal which affirmed the decision of the High Court.

The Court of Appeal held that by Section 14 of the Examination Malpractices Act Cap E15 LFN 2004, examination malpractice is a crime and it is triable only by the Federal High Court. The court explicitly pronounced that neither the Students Disciplinary Committee nor the Senate which approved the recommendation of the students Disciplinary Committee have jurisdiction under the law to adjudicate on an allegation of crime as they are not a Court of law.

The decision of the Court in Ahmadu Bello University, Zaria v. Rashidat Suleiman Obanla⁸ was to the effect that the disciplinary committee can only conduct an investigation but they must take the matter to a Court of law.

In my view, it is pertinent to note that in any matter of Examination Malpractice, it is the University that stands as the accuser. On this note, the University can not proceed to determine the fate of such a student who has indulged in such an act. It is tantamount to the breach of the principles of Natural Justice, Equity, and Good Conscience which are enunciated in these legal maxims of law, Audi Alteram Partem (hear the other side) and Nemo Judex in Causa Sua (one cannot be a judge in his case) which are indeed the twin pillars of Natural Justice and it is enshrined in subsections (1) and (4) of S. 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

In the case of Garba & Ors v. the University of Maiduguri,⁹ the Court reiterated the point that in criminal matters or an act which a law in the land has deemed an offence, Universities lack the jurisdiction and indeed, can never exercise jurisdiction over offence against the law of the land. Though, in his case, the offence is not one of examination malpractice but other misconduct that the law has prescribed an offence. The crux here is that, where conduct is criminalized, only Courts of Law have the jurisdiction to try that offence/conduct. See also the case Denloye v. MDPDC (1968) A.N.L.R 298.

An appropriate question that comes to mind is, what can a university do or what action can it take against a student who has indulged in Examination Malpractice?

Sequel to the Prosecution and conviction of the accused/student in question, it is only then the University can mete out its administrative measures on the such student which could be by way of expulsion. In support of this stand, the Court in Garba’s¹⁰ case held that guilt is left for the ascertainment of Courts of law or  Tribunal before it is accepted and acted upon by Administrative Tribunal. In other words, the prosecution has to prove beyond reasonable doubt that that student indeed, is guilty or committed the offense of examination malpractice which the Court will then go ahead to convict such student. It is only on this ground that the University can punish the such students

Conclusion

Examination Malpractice has indeed far-reaching consequences in the educational system. As a result of which the development of Nigeria will be disrupted and this will not be good for us all. Thus, the Act has to be implemented to achieve its purpose and deter those who seek to indulge in it. And also, for the fact that these individuals have dreams of becoming better people and leaders, it is for them to be aware that being an ex-convict bars them from holding certain positions and also political offices if they are convicted.

The author

Ikpeba Best Woudatiemona

3300-level law student of the Niger Delta University, Wilberforce Island, Bayelsa State, Nigeria.

Serving member of the Law Clinic, Niger Delta University,

Member, Law Session With Khara

Volunteered at the Warri Communities Law Center.

References

1. Adekunle, S. (2003) Preparing for examination, Ilesha, Ilesanmi Press.
2. IGI Global, Publisher of Timely Knowledge https://www.igi-global.com/dictionary/examination/38442
3. Examination Malpractices Act, Cap. E15, Laws of the Federation of Nigeria, 2004.
4. Tambawal, Examination Malpractices, Causes, Effects, and Solutions https://www.academia.edu/3819778/EXAMINATION_MALPRACTICES_CAUSES_EFFECTS_AND_SOLUTIONS
5. Onyechere, I. (2004). “NN66 billion lost to examination fraud in 10 years”. The Punch Newspaper, Monday, August 30.
6. Olutayo v. Federal University of Technology, Minna & Ors (2007)LCN/2451(CA).
7. (2021) LPELR 55101(CA).
9. Mr . Yesufu Amuda Garba & Ors v the University of Maiduguri (SC 24 of 1985) [1986] NGSC 7 (14 February 1986.
10. Mr . Yesufu Amuda Garba & Ors v the University of Maiduguri (SC 24 of 1985) [1986] NGSC 7 (14 February 1986.

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