1999 Constitution - Legalnaija

A Brand New Constitution For The Peace And Stability Of Nigeria: The Inconvenient Truth | Dele Adesina, SAN, LL.M, FCIArb

by Legalnaija | Jun 3, 2021 | Law

Past general secretary, Nigerian Bar Association. Presented on 2^nd June, 2021 at the public hearing of the House Of Representatives Committee on the review of the 1999 constitution of the Federal Republic Of Nigeria 1999 (as amended).

Protocols

INTRODUCTION

Quite often, I meditate on the affairs and the future of this nation. Each time I do this, I believe like many others in this Country, become very apprehensive of the future of the Country even though I am a man of faith. As a messenger of hope and confidence, I try to suppress and overcome my fears by faith. However, I do recognize that faith does not deny the facts. Faith only insists that the fact do not represent the final position if something is done to change that position. It is an undeniable statement that faith without work is dead.

The situation in Nigeria today to face the reality is precarious from all dimensions.That is not the focus of my short presentation, But I dare say that all that we are seeing today are symptoms, products and reminiscents of a faulty foundation. If the foundation be destroyed, God says there is nothing the righteous can do. The point was well made yesterday by the RT. Hon Speaker, Mr. Femi Gbajabiamila in his opening speech and this is very fundamental that “the foundation of any nation is its constitution and that the Constitution of Federal Republic of Nigeria 1999 as amended is short of standard. That the Constitution is a product of a horrid National compromise to return the military back to the barracks.”

WHAT IS A CONSTITUTION?

In Nigeria, the Supreme Court has said in AG Federation Vs. AG Abia State that “It must be remembered that the fountain of all laws is the Constitution. It is the composite document setting out how the Country is to be held together. It is not a document to be read with levity or disdain …. It is the very foundation of the nation’s existence.”

It is the Supreme law in which the principles of fundamental nature for a nation are established.” It is supreme and superior to any other law. Indeed, it determines the validity or otherwise of governmental actions.

The Constitution of the Republic of South Africa, 1996 inSection 2 states “This Constitution is the supreme law of the Republic of South Africa. Law or conduct inconsistent with it is invalid and the obligations imposed by it must be fulfilled.”

Article 6 Clause 2 of the Constitution of the United States of America says “This Constitution and the laws of the United States which shall be made in pursuance thereof and all treaties made or which shall be made under the authority of the United States shall build the supreme law of the land….. any thing in the Constitution or law of any State to the contrary notwithstanding.”

Similarly, Section 1(1) of the 1999 Constitution FRN as amended also established the supremacy and the binding force of the 1999 Constitution I submit in an inelegant manner unlike the very vocal and direct provision of the South African Constitution I cited above.

THE INCURABLE VICES OF THE 1999 CONSTITUTION AS AMENDED

The late constitutional Lawyer Chief Rotimi Williams SAN said on the 18^th of June 1999 at a Seminar organized by the NBA Ikeja on the 1999 Constitution that “The 1999 Constitution is a document that tells lie against itself.”
Itse Sagay SAN in his characteristics self was more categorical when he described the Constitution as a fraud, contending that the people of Federal Republic of Nigeria never gave to themselves or resolved to give to themselves the 1999 Constitution. I will expantiate on this later.

Another foremost constitutional Lawyer, Prof. Ben Nwabueze SAN has described the Constitution as an illogicality contending that the 1999 Constitution is a unitary constitution for a Federal system of Government.

My Learned Brother Silk and Constitutional Law expert, S.T. Hon, SAN, had this to say in his book titled‘Constitutional Law and Migration Law’: “there is no doubt that the 1999 Constitution was enacted by the military. That the apex Court merely imputed this exercise to the Nigerian people.”
In a Paper titled “Preventing the Breakdown of Democracy in Nigeria – an overview of the 1999 Constitution”presented by me in year 2000, I said “The 1999 Constitution is in my view nothing more than a legacy bequeath on us by the Military neo colonial masters at the eve of their departure on the 29^th of May, 1999, in a fashion reminiscent of a will that takes effect after the demise of the testator…”

Many other well informed Nigerians, too numerous to mention have said repeatedly based on the vices stated above and many others that the 1999 constitution lacks legitimacy and popular acceptability fundamentally because of the circumstances of its making and because of the several positions in it which are alien to all known principles of federalism.

First, it is to be recalled that we have successfully carried out 4 Amendments through 1st, 2nd, 3rd and 4th Alteration exercises. Several Sections of the Constitution were altered in the course of the four (4) exercises, all these within approximately a period of 21 years of the existence and operation of the Constitution. The question is if we find it desirable to embark on another exercise as profound and expansive as the one being contemplated, whether it is not far better and more desirable to think about a holistic replacement of the 1999 Constitution?

Second, I noted with satisfaction that some of the issues scheduled to be considered in the review exercise constitute fundamental and existential issues for Nigeria as a safe and secured Nation, as a Federation and lastly as a successful Constitutional Democracy. I am referring here to such items as devolution of powers, Federal Structure and true Federalism, the Nigeria Police and Nigerian Security Architecture, comprehensive Judicial Reform, Local Government autonomy and the National Assembly itself. Once these foundational issues are going to form the cornerstone of this review, the question is whether it is not better and preferable to garner the thoughts, feelings, visions and aspirations of the Nigerian people with a well articulated, negotiated agreement towards embarking on the process of making a new Constitution for Nigeria to mark a new beginning.

Third, the Constitution was described as a fraud and a document that lies against itself at a Seminar on the new Constitution organised by the Nigerian Bar Association, Ikeja Branch, on the 18th of June, 1999 because the Constitution purportedly stated in its opening recital that “We the people of the Federal Republic of Nigeria having firmly and solemnly resolved… do hereby make, enact and give to ourselves the following Constitution.” Since the enactment of the 1999 Constitution, the question has been asked repeatedly, where and when did that resolution take place? How did the people of the Federal Republic of Nigeria arrive at that firm and solid resolution purportedly expressed in the recital to the 1999 Constitution?

It must be recalled that the 1999 Constitution of the Federal Republic of Nigeria was midwifed by the then Military Government of General Abdusallam Abubakar, GCFR, pursuant to the promulgation of the Constitution of the Federal Republic of Nigeria Decree No. 24 of 1999. The question is whether Decree No. 24 of 1999 can take the place of a referendum by the people in the making of a people’s Constitution recognising that the ultimate sovereignty lies with the people?

FAULTY FEDERAL STRUCTURE

Inthe case of Attorney-General of Abia State v. Attorney-General of the Federation, the Supreme Court stated the meaning and scope of Federalism in the following words: “Federalism as a legal concept generally connotes an Association of states formed for certain common purposes, but the State retains a large measure of their original independence or autonomy. It is the co-ordinate relationship of power between the individual States and the National Government which is at the centre.”

The Supreme Court went further to say that “Federalism as a viable concept of organising a pluralistic society such as Nigeria for governance does not encourage so much concentration of powers in the centre which is the Federal Government. In federalism, the component states do not play the role of errand boys.” The point was also made by the Supreme Court in Attorney-General of Lagos State v. Attorney- General of the Federation, that each Government in a Federation “exists not as an appendage of another Government but as an autonomous entity in the sense of being able to exercise its own will in the conduct of its affairs, free from direction from another Government.” None of these essential characteristics of a true Federalism can be said to exist in Nigeria in real and practical terms.

I am fully persuaded by the opinion of Professor Ben Nwabueze, SAN, that “one single Constitution for all the governments involved both Federal and State in a Federation is a manifest contradiction.” For instance, in 1960, we had the Independence Constitution. There were separate Constitutions for both the Federation and the Regions as separate Schedules to the Independence Order-in-Council. Similarly, the 1963 Republican Constitution made provisions for the establishment of regional Constitutions for the three regions that composed the Federation at the time. Section 5 (1) thereof stated as follows: “Subject to the provision of this Constitution (Federal Constitution) the Constitution of each region shall have the force of law throughout the region.”

There was also a specific provision in that Constitution which stated that the Executive Authority of a Region (which extended to the execution and maintenance of the Regional Constitution) shall be exercised so as not “to impede or prejudice the exercise of the Executive Authority of the Federation or endanger the continuance of the Federation.”

It thereforefollows that in an ideal Federal system, apart from sharing of powers, both the Federal and the Federating units must have their own Constitutions. The question is whether we truly want a Federal or a Unitary System of Government in Nigeria and whether an elaborate discussion on the desirability or otherwise of this initiative can be undertaken under an amendment process such as the one being contemplated?

Everyone in this Nation today accepts the fact that the Nation is faced with a lot of structural and systemic challenges, a good number of which are the products of the inadequacies of the 1999 Constitution. It is no longer news that there has been over concentration of powers at the centre at the detriment of the federating units. Indeed, over the years the centre has been grabbing and grabbing powers at the expense of the federating units. The long years of military adventure in governance has not helped the situation. For the sake of comparison, the 1954 Constitution donated 43 items to the centre in the Exclusive Legislative List, 45 items in the 1960 and 1963 Independence and Republican Constitutions, 66 items in the 1979 Constitution and 68 items to the centre in the 1999 Constitution as amended.

The reality of our Constitutional structure and power sharing today is that simple items such as census, labour, trade unions and industrial relations, mines, minerals, natural gas, drugs, evidence, trade and commerce are in the Exclusive Legislative List. Not to talk of the Policing system. This is in addition to 30 items under the Concurrent Legislative List for which both the Federating States and the Federal Government have powers to make laws subject of course to the supremacy of the Federal Law over the State Law on any such matter where one is inconsistent with the other.

A CENTRALIZED AND MONOLITIC POLICE STRUCTURE – AN ABSURDITY

The issue of Nigeria Police and the security architecture in particular is very germane. It is not an over statement to say that the greatest challenge confronting our Nation today and particularly the security and sustenance of our Constitutional democracy is that of insecurity. I believe that nobody is left in any doubt that the centralized and monolithic Police structure established by Sections 214 and 215 of the Constitution can no longer guarantee the security of this Nation and its component parts and this explains why the other security agencies like the Military, the Airforce and the Navy are now directly involved in the maintenance of law and order in different parts of the country.

PARTICIPATORY/ PEOPLE DRIVEN CONSTITUTION

The process of making the 1999 Constitution as stated earlier falls short of guaranteeing its popular legitimacy and acceptability. No amendments no matter how many times can in a retroactive manner cure this foundational defect in the making of the 1999 Constitution. It remains a military-donated Constitution. A deliberate effort to embark on the making of a new Constitution will offer an opportunity to Nigerians for popular participation in the Constitution making process of their Country.

Scholars of Constitutional Law have argued and I wholeheartedly agree with their reasoning that the scope of making a Constitution should not be determined by the rulers or those who govern them. Professor Julius Ihombere, talking about the value of participatory/ people driven Constitution making approach had this to say: “political elites and leaders have not come to fully appreciate the importance of a participatory or people driven Constitution making approach to their own survival in office and to the reduction of conflicts and pressures on the State, its institutions and custodians. Asides from using the process to resolve burning national issues, a participatory approach is probably one of the best panaceas to instability, public cynicisms and alienation from government. It is equally the best way to cultivate a culture and tradition of reliance on dialogue and consensus rather than the result to violence in the political process.”

The contemporary challenges being faced in the Nation today such as the wide spread insecurity, various sectional loyalty and allegiances instead of loyalty and commitment to the cause of the Nation on the basis of nationalism and patriotism, lack of properly focused political system cloaked in ideology and the uncountable number of political parties jostling for power, the agitation for true federalism, both fiscal and structural, make the call for a new Constitution not only worthy of consideration but I submit compelling and inevitable.

It is my humble view that the time to take the bull by the horn and drive a wholesale replacement of the 1999 Constitution through the instrumentality of an autonomous and independent body is now. Such body must emanate from the people. Like I stated earlier the ultimate sovereignty lies with the people. It is my contention that we have gotten to a point in Nigeria when we should subject the Nation to the sovereign will of the people by making a people driven Constitution.

ARGUMENT AGAINST PROPOSAL FOR A NEW CONSTITUTION

I am not unaware of the argument that we cannot have two sovereigns in a nation in the sense of having a Sovereign National Conference as well as a Sovereign Government and Sovereign National Assembly. I am not here to advocate for a sovereign national conference. Any conference or assembly of people can drive a new constitution for Nigeria. Going by the example we have seen in South Africa, I think both can coexist without one impeding or obstructing the workings of the other. Example they say is better than precept. Let us draw example from those who have successfully passed through this stage before and came out very successfully.

Let it be recalled that the agitation and resistance against the Apartheid System of Government in South Africa was what led to the setting up of the Convention for Democratic South Africa (CODESA). At the time of formulating a new Constitution by the Convention for Democratic South Africa (CODESA), the Republican Constitution of South Africa 1961 was in place and a democratically elected government led by the National Party was also in place.

History recorded that it was the Convention for Democratic South Africa that fashioned a new Constitution that ultimately removed discrimination and all forms of apartheid rule in South Africa. It is time for us to recognise that no problem is ever solved by technically avoiding the problem. Let us collectively resolve to confront our constitutional problem, resolve it by taking the bull by the horn.

It will be a great day for Nigeria if we can take this giant step to fashion out a new Constitution that will satisfy the yearnings, aspirations and inspirations of all Nigerians rather than embarking on limitless amendments. A Constitution that will enjoy a buy-in of all Nigerians. A Constitution that Nigerians can take ownership of by their participation in the process of its making. Somebody says that no matter how long you persist on a wrong route, you can never arrive at your desired destination. The time for us to take our destiny in our own hands is now. With all its noticeable inadequacies, the 1999 Constitution has tried to give us a Constitutional democracy albeit in a limited sense. We can all see the failures that are threatening the survival of our democracy. If it is not Panadol, it cannot do the work of a Panadol. The flaws of the Constitution of Federal Republic of Nigeria 1999 cannot, no matter how many alterations be cured.

CONCLUSION

In conclusion, I cannot agree less with Professor Julius Ihombere when he stated in his paper titled ‘Towards Participatory Mechanisms and Principles of Constitutional Making in Africa’ published in 2000 said: “rather than just seeing the Constitution as a power map focusing exclusively on the question of power (which is what we may achieve by the various Amendments) we must see the Constitution as an instrument for addressing pressing socio-economic, cultural and economic questions as well as an embodiment of consensus around constitutionalism.”

The Constitution must be seen and regarded as “an expression of the general will of the Nation, a reflection of its history, fears, concerns, aspirations, vision and indeed, the soul of the Nation. Furthermore, the Constitution is not just an elite affair rather it must be seen as a single document under which diverse and ideologically opposed people unite and rally in defence of democracy.”

The Chairman of this Review Session and through you the Rt. Hon. Speaker of the House of Representatives of the Federal Republic of Nigeria, a new Constitution will translate: “We the people of the Federal Republic of Nigeria having firmly and solemnly resolved… do hereby make, enact and give to ourselves the following Constitution” from make believe into reality. May I conclude by saying that if we must decisively address the inadequacies, distortions, confusions, fundamental omissions and the inherent contradictions and illogicalities in the 1999 Constitution of the Federal Republic of Nigeria, as amended, if we must establish a true and functional Federation that will guarantee National cohesion,our focus must be to give to ourselves a new Constitution. This is the truth, no matter how inconvenient.

THE END

Northern Groups October 1 Deadline to Igbos; A Constitutional Breach | Adedunmade Onibokun

by Legalnaija | Jun 7, 2017 | Uncategorized

According to news
reports, on Tuesday, the 6^th of June, 2017, 16, Northern groups including
the Arewa Citizens Action for Change, Arewa Youth Consultative Forum, Arewa
Youth Development Foundation, Arewa Students Forum and Northern Emancipation
Network on the Igbo Persistence for Secession, among others directed all Igbos
residing in their States to vacate the northern region before the 1^st
of October, 2017.

This comes closely behind
the Indigenous People of Biafra (IPOB) and the Movement for the Sovereign State
of Biafra (MASSOB)’s May 30 shut down of commercial and social activities in
major towns in the East over Biafra agitations. The deadline which is worrisome
and could lead to a volcanic rise in ethnic tensions or probably another civil
war is condemnable in the highest words and not in the spirit of national unity
or have we as a country crossed the rubicon
and now heading towards self- implosion?

The Constitutional and
fundamental rights of every Nigerian with an Igbo descent is now on the line and
the a subsequent breach of same will likely result to violence, senseless loss
of lives and regional tensions as seen during the Nigerian civil war. According
to Nigerian Constitution, Section 41 guarantees the right of every Nigerian to
freedom of movement. It provides in subsection 1 that-

“Every
Citizen of Nigeria is entitled to move freely throughout Nigeria and to reside
in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria
or refused entry thereto or exit there from.”

Section 43, further
provides for the right to acquire and own immovable property anywhere in Nigeria.
For ease of reference, it provides that;

“Subject
to the provisions of this Constitution, every citizen of Nigeria shall have the
right to acquire and own immovable property anywhere in Nigeria”.

The above provisions of
the Nigerian Constitution clearly shows that the deadline given to Igbos is a
clear breach of our constitutional provisions and thus should be met the full
force of the law and expertise of national security agencies to prevent the
grave mishap that looms in our front yard. The only legal exceptions provided
for the above constitutional provisions is also clearly outlined in Section 45
of the said Constitution which provides that only laws passed in a democratic
society and in the interest of defence, public safely, public order public morality
or public health; or for the purpose of protecting the rights and freedom of
other persons. Can the deadline be described as a law in line with the
provisions of Section 45, the answer is No.

Moreover, the said
deadline is seditious in itself and a breach of Section 51 of the Criminal Code
Act. Sedition has been defined by the Criminal Code in Section 50(2) to mean; any
act that excites the citizens or other inhabitants of Nigeria to attempt to
procure the alteration, otherwise than by lawful means, of any other matter in
Nigeria as by law established; or to
raise discontent or disaffection amongst the citizens or other inhabitants of
Nigeria; or to promote feelings of ill-will and hostility between different
classes of the population of Nigeria. Could the deadline given by these
Northern groups be said to fall in line with the definition of a seditious act
under the criminal code, the answer is Yes. What the n is the penalty?

Section 51 of the Criminal
Code provides that;

“any
person who-

(a)
does or attempts to do, or makes any preparation to do, or conspires with any
person to do, any act with a seditious intention;

(b)
utters any seditious words;

(d)
imports any seditious publication, unless he has no reason to believe that it
is seditious;

shall be guilty of an offence and liable on
conviction for a first offence to imprisonment for two years”.

The Penal Code also recognizes
the offence of sedition where it provides in Section 417 that “Whoever, seeks
to excite hatred or contempt against any class of persons in such a way as to
endanger the public peace, shall be punished with imprisonment for a term which
may extend to three years or with fine or with both”.

Clearly the deadline given
by the Northern groups to Igbo-Nigerians is a clear seditious, constitutional
and fundamental breach of Nigerian laws which clearly should attract prosecution.

Dunmade
Onibokun Esq.

Adedunmade
Onibokun & Co.

www.adedunmadeonibokun.com

dunmadeo@yahoo.com

One Step Closer to Creation of State Police

by Legalnaija | Oct 4, 2016 | Uncategorized

Sometime ago, I wrote
about why we needed to establish State Police in Nigeria and empower local security agencies
here.
The advantages will be of course immense including employment for the teeming
youths, safer neighbourhoods and superior policing infrastructure. My voice is
definitely not the first and won’t be the last in support of this initiative
and I am glad we are moving one step closer as a nation to achieving this goal.

At the House of
Representative on the 27^th of September, 2016, the Bill which seeks
to alter the 1999 Constitution of the Federation, to provide for the
establishment of State Police and to ensure effective community policing in
Nigeria, standing in the name of Hon. Awoleye Abiodun Dada passed through its
second reading and was accordingly referred to the Ad hoc Committee on
Constitutional review for further legislative action.

Section 214 of the 1999 Constitution,
provides that there shall be a police force for Nigeria, which shall be called
the Nigeria Police and, subject to the provisions of this section no other
police force shall be established for the Federation or any part thereof. In
order therefore to establish State Police in Nigeria, this provision of the Constitution
must be amended. It is hoped that the Bill becomes law in the shortest possible
time.

The Nigerian Police is
regulated by the Police Act, Cap.P19, Laws of the Federation of Nigeria, 2004.
Section 10 of that Act provides that for public safety and public order The
President may give to the Inspector-General such directions with respect to the
maintaining and security of public safety and public order as he may consider
necessary, and the Inspector-General shall comply with those directions or
cause them to be complied with.

I believe the amendment
when passed will further lead to the State House of Assemblies passing their
respective Police Laws establishing the police in each state and enumerating
their duties, powers and administration. Most likely, the law will also empower
State Governors in regard to the security of their states as also provided for
in Section 10 of the Police Act. Also, the Police Act may be further amended to
properly outline the respective legal jurisdiction of the Federal and State
Police.

Adedunmade Onibokun

dunmadeo@yahoo.com

@adedunmade

Photo Credit – www.punch.com

Dunmade Onibokun – Scope of Immunity Clause on Nigerian Public Officers

by Legalnaija | Jul 15, 2016 | Uncategorized

President Muhammadu Buhari

By
virtue of the Nigerian 1999 Constitution, certain public officers are granted
immunity. This post will be analyzing the relevant provision of the constitution
providing for immunity and taking a look at the extent of the cover provided by
the immunity clause.

The
8^th edition of the Black’s Law dictionary defines immunity as ‘any
exemption from a duty, liability or service of process; especially such
exemption granted to a public official. L.B Curzon’s, A Dictionary of Law, further
defines immunity as a “freedom or exemption from some obligation or penalty.

The
relevant provision of the constitution which provides for immunity for public
officers is Section 308, of the 1999 Constitution, Laws of the Federal
Republic of Nigeria (2004). The law provides that –

308. (1) Notwithstanding anything to the contrary in
this Constitution, but subject to subsection (2) of this section –

(a) no civil
or criminal proceedings shall be instituted or continued against a person to
whom this section applies during his period of office;

(b) a person
to whom this section applies shall not be arrested or imprisoned during that
period either in pursuance of the process of any court or otherwise; and

(c) no process of any court requiring or compelling
the appearance of a person to whom this section applies, shall be applied for
or issued:

Provided that in ascertaining whether any
period of limitation has expired for the purposes of any proceedings against a
person to whom this section applies, no account shall be taken of his period of
office.

(2) The
provisions of subsection (1) of this section shall not apply to civil
proceedings against a person to whom this section applies in his official
capacity or to civil or criminal proceedings in which such a person is only a
nominal party.

(3) This
section applies to a person holding the office of President or Vice-President,
Governor or Deputy Governor; and the reference in this section to “period
of office” is a reference to the period during which the person holding
such office is required to perform the functions of the office.

From
the provisions of Subsection 3 of the above statute, it is clear that the only
persons granted immunity in the Constitution include; the President,
Vice-President, Governor and Deputy Governor.

Also
from Sub -section 1 of the law, it also states clearly that the above mentioned
people cannot be arrested, charged to court and no court has the power to compel
their appearance during the period in which they hold this office. Except, it’s
a civil proceedings, in which the public official is a party due to his
official capacity. In essence, neither the Police, EFCC nor any other security
agency in the country can arrest any of these public officials.

This
provision has caused a lot of debate, with some calling for the removal of the
shield upon which these public officials are covered by virtue of a
Constitutional review deleting the immunity clause. A strong reason they say is
because no one should be above the law. It
should however be noted that the reason behind imputing the immunity clause in
the first place was the protection of public interest wherein the interest of
the nation in the preservation of its highest offices outweigh the inconvenience
to the individual for the temporary postponement of prosecution and to save
such public office holder from harassment while the person is in office.

What however is the scope
of the immunity?

Questions
have arisen from different quarters as to whether the immunity cause protects
the public officer from investigation? It should be noted that this is not the
case.

In
the case of Fawehinmi V. Inspector
General of Police and 2 Ors (2002) 7 NWLR (Pt. 767) 606, the question
was whether the immunity clause protects a Governor (against whom allegations
of criminal conduct was made) from investigation by the police. The Supreme
Court held in the case that neither the law nor the Constitution protects any
person from being investigated by the Police. The outcome of the investigation
however would not crystalize into a criminal prosecution while the public
officer still holds office. Uwaifo JSC further stated “that a person protected
under Section 308 of the 1999 Constitution, going by its provisions, can be
investigated by the police is, in my view beyond dispute.” The essence of the above
judicial pronouncements is that though a public office holder covered by
Section 308 of the Constitution may be investigated by government security agencies,
they may not be prosecuted until after the expiration of their official tenure.

It is also worthy of note that by virtue of the Diplomatic
Immunities And Privileges Act, every foreign envoy and every foreign consular officer, the members of the
families of those persons, the members of their official or domestic staff, and
the members of the families of their official staff, are accorded immunity from suit and legal process
in Nigeria.

Dunmade
Onibokun Esq.

Principal Partner

Adedunmade Onibokun & Co.

www.adedunmadeonibokun.com

Femi Falana – Official corruption and immunity in Nigeria

by Legalnaija | Jul 9, 2016 | Uncategorized

In order to ensure the
smooth running of the government the Constitution has conferred immunity on the
heads of the executive. A couple of laws have equally granted immunity to
members of the judiciary and the parliament. However, the proposal of the Senate
to confer absolute immunity on the heads of all legislative houses in the
country and the recent freezing of the bank account of Mr. Ayo Fayose, Governor
of Ekiti state by the Economic and Financial Crimes Commission (EFCC) have
re-opened the debate on the propriety of retaining the immunity clause in the
Constitution.

This paper contends that
no public officer is entitled to absolute immunity as the beneficiaries of the
immunity clause may be sued in their official capacity or made nominal parties
in criminal proceedings. They may also be sued to defend their elections either
in court or election petition tribunals or charged with crimes against humanity
and genocidal acts before the international criminal court at The Hague. In
conclusion, the Nigerian people are called upon to demand for the abolition of
immunity in the struggle for public accountability and transparency.

Genesis of sovereign
immunity

The doctrine of sovereign
immunity is of antiquity. It is basically founded on the anachronistic legal
principle of rex non potest peccare (the king can commit no wrong). As the king
enjoyed absolute immunity he could neither be impeded in his own courts nor
subject to any foreign jurisdiction. Maneleus of Sparta confirmed that the king
was above the law of the Realm, when he said “when a king takes spoils, he robs
no one; when a king kills, he commits no murder, he only fulfils justice.”

Under the feudal system of
government the king was equated with the State. Hence Louis XIV of France once
declared “I am the State”. Although the absolutist powers of the king were
swept away by the Glorious Revolution in England the immunity of the Crown was
left intact. Thus, by virtue of the Crown Proceedings Act the king was totally
absolved of vicarious liability with respect to the tortious acts of his agents
or servants. See Roper V. Public Works Commissioner (1905) I.K.B. 45. The Crown
Proceedings Ordinance, the Petition of Rights Ordinance, the Public Officers
Protection Ordinance etc which embodied the essentials of state immunity were
imposed on Nigeria by the British colonial regime. Consequently, Nigerians were
unable to sue the British Government for the massive violations of their rights
and the criminal diversion of the wealth of the country under colonial rule.

Even though the Crown
Proceedings Act was abolished in England in 1947 its ghost continued to haunt
Nigeria several decades after independence. For instance, the law was invoked
to cover up the atrocities perpetrated by the armed soldiers who destroyed the
Ransome-Kuti family house at Idi Oro, Lagos on February 18, 1977. Thus, in
Chief (Mrs) Olufunmilayo Ransome Kuti Vs. Attorney-General of the Federation
(1985) 2 NWLR (PT 6) 211 at 236-237 the Supreme Court held that the federal
government was not vicariously liable for the arson and willful damage to
property carried out by its armed agents. But the apex court took advantage of
the case to declare that section 6 of the Constitution has abolished the
anachronism of state immunity.

Apart from the Crown
Proceeding Act which was annulled in the Ransome-Kuti’s case a number of other
laws which preserved state immunity have either been declared illegal or
whittled down by Nigerian Courts . But in spite of the abolition of state
immunity the Constitution has conferred immunity on the heads of the executive
arm of government during their terms of office. Under the defunct military
dictatorship the absolute immunity of military dictators was preserved in the
supremacy decrees. Specifically, the Constitution was suspended while the
jurisdiction of the courts was ousted with respect to anything done or
purported to have been done by the military dictators.

In Femi Falana & Ors v
General Ibrahim Babangida the plaintiffs sued the defendant to justify the
unilateral dissolution of the Armed Forces Ruling Council, the ruling body
under the military junta at the material time. In striking out the case for
want of locus standi the trial judge, the late Ligali Ayorinde C.J. described
the military president as the “kabiyesi” of the country as he was not
accountable to anyone or institution in the country. But the judge failed to
appreciate that the “kabiyesi” in the Oyo empire could be removed if he was
found to have committed grave crimes against the people.

The purpose of immunity
for public officers

The sole justification for
immunity is that the heads of state and government should enjoy absolute
immunity to enable them to perform official duties without distractions. In
other words, such public officers should not be harassed or distracted in the
performance of their duties by fear of civil or criminal litigation. By virtue
of Section 308 (1) of the 1999 Constitution “no civil or criminal proceedings
shall be instituted or continued against the President, Vice President,
Governors and Deputy Governors during their period of office.” The implication
of the immunity clause is that any of the persons to whom the section applies
shall not be arrested or imprisoned either in pursuance of the process of any
court or otherwise and no process of any court requiring or compelling the
appearance of the person shall be applied for or issued.

However, the provision of
the immunity clause shall not apply to civil proceedings against the public
officer in his/her official capacity or to civil or criminal proceedings in
which such a person is only a nominal party. Cases filed before the assumption
of office of public officers covered by the immunity clause are stayed to await
the expiration of their tenure. See the cases of Col. Oluwole Rotimi Vs.
Macregor (1974) NSCC 542; Bola Tinubu Vs. I.M.B. Securities Ltd. (2001) 11 WRN
27; (2001) 16 NWLR (PT 740) 670 and Media Technique Nig. Ltd. Vs. Lam Adesina
(2004) 44 WRN 19. Paradoxically, public officers protected by the immunity
clause are not precluded from instituting civil proceedings during their term
of office.

In Olabisi Onabanjo Vs.
Concord Press of Nigeria (1981) 2 NCLR 349 the Defendant challenged the libel
suit filed by the Plaintiff on the ground that he was excluded from being sued
during his term of office as the governor of Ogun State. In dismissing the
preliminary objection Kolawole J. (as he then was) held that even through a
governor could be sued he was not precluded from instituting and maintaining an
action in Court. See also the case of Aper Aku Vs. Plateau Publishing Company
Ltd. (1985) 6 NCLR 338 and Chief D.S.P. Alamieyeseigha Vs. Teiwa & Ors.
(2001) 33 WRN 144.

With respect, it is
submitted that if those covered by the immunity clause can institute libel
suits or enforce other rights it is unjust to prevent other persons from suing
them while in office. As there is equality before the law it is grossly unjust
to allow public officers covered by the immunity clause to institute civil
suits when their opponents are precluded from suing them by issuing or serving
court processes on them. The injustice in the discriminatory practice becomes
apparent when it is realized that the defendants cannot appeal against the
cases if they are decided in favour of the public officers.

Judicial immunity

By virtue of secion 6 of
the Constition the judicial powers of the State are veted in judges. Such
powers shall be exercised by judges without fear of favour. The law
establishing each of courts provides that judges shall not be held liable for
any act done in the discharge of their duties. In other words judges cannot be
subject to civil or criminal proceedings on account of negligence or errors
made in the course of discharging their functions. Litigants who are
dissatisfied with the decisions of judges have the right to appeals to higher
courts for redress. However, the National Judicial Council is empowered to
investigate allegations of misconduct against judges and recommend appropriate
sanctions to the appointing authorities.

In order to deal with
allegations of judicial corruption judges who were found to have engaged in
misconduct have been removed from the bench. According to the Chief Justice of
Nigeria, the Honourable Justice Mahmud Mohammed, not less than 54 judges have
been compulsorily retired or dismissed from office from 1999-2016. Two Senior
Advocates of Nigeria who are alleged to have bribed three judges are currently
standing trial at the Lagos high court. Since it takes two to tango the judges
who allegedly received the bribes from both senior lawyers should not be spared
from criminal prosecution.

Legislative immunity

The Legislative Powers and
Privileges Act has conferred limited immunity, powers and privileges on the
members of the national assembly in the performance of their legislative
duties. Specifically, they are immune from civil or criminal proceedings in
respect of deliberations and comments made by them in course of proceedings in
the parliament. In view of the controversy which has trailed the arraignment of
the leaders of the Senate it is pertinent to point out that the privileges and
immunity conferred on the legislators cannot shield them from prosecution for
criminal offences. Indeed, under section 25 (1) of the Act, any person who
causes to be printed a copy of any Act or law, report, paper, minutes or votes
or proceedings of a legislative house shall be guilty of an offence and shall
be liable on conviction to a fine of two hundred Naira or imprisonment or 12
months imprisonment or to both such fine and imprisonment.

Furthermore, no
prosecution shall be instituted for any offence committed under the Act except
by the Attorney-General of the Federation (AGF) upon information given to him
by the President of the Senate or the Speaker of the House of Representatives
.With respect to the alleged forgery of the Senate Rules which occurred
sometime last year the Senate President did not report the matter to the AGF.
Since the Senate President failed to perform his statutory duty in the
circumstance, the AGF decided to file the charge the four defendants with
conspiracy and forgery under the Penal Code applicable in the Federal Capital
Territory.

Although Nigerian
legislators have not been conferred with absolute immunity the Senate believes
that its leaders are above the law of the land. Hence, the Chairman of the Code
of Conduct was recently summoned to justify the trial of the Senate President,
Dr Bukola Saraki on the allegation of false declaration of assets. Although the
Senate withdrew the illegal summons based on negative public reaction it has
invited the Attorney-General of the Federation to appear before the senators to
explain the rationale for filing criminal charges against the senate president,
deputy senate president and two legislative staff. Since the senate is
prohibited by its own rules from debating any matter which is sub judice the
decision of the Attorney-General, Mr. Abubakar Malami SAN, to treat the summons
with disdain cannot be faulted.

It ought to be pointed out
that not even the court not even the court can question the Attorney-General in
the exercise of his powers to charge any criminal suspect to court pursuant to
section 174 of the Constitution. In The State v Ilori & Ors (1983) 1 SCBLR
94, the Supreme Court held that the powers of the Attorney-General are a matter
for his quasi-judicial discretion and one within his complete province as he
possesses ”the constitutional powers in full and the responsibility for any
decision thereupon rests solely on him.” The apex court proceeded to state that
“a person who has suffered from the unjust exercise of his powers by an
unscrupulous Attorney-general is not without remedy; for he can invoke other
proceedings against the Attorney-General. But certainly, his remedy is not to
ask the court to question or review the exercise of the powers of the
Attorney-General.” Since the Senate lacks the vires to summon the
Attorney-General to partake of a debate on a matter that is sub judice the
illegal summons should be formally withdrawn without any further delay.

Instead of writing protest
letters to regional and international organisations as well as embassies of
countries which operate under the rule of law with emphasis on equality of
citizens before the law the defendants are advised to follow the principle laid
down by the Supreme Court in the case of The State v Ilori & Ors (supra).
More importantly, to prevent the political manipulation of the Attorney-General
by the executive the national assembly may wish to take advantage of the
planned constitutional review to ensure that section 174 of the Constitution is
amended to separate the office of the Attorney-General from that of the
Minister of Justice.

Immunity and electoral
disputes

In order to actualise the
equality of the rights of all contestants in a presidential or governorship
elections it has been held by the Supreme Court that immunity cannot be invoked
in election petitions. Otherwise, public officers to whom immunity applies may
take advantage of their positions to rig elections and threreby sabotage the
democratic process. The rationale for suspending the operation of the immunity
clause during the hearing of election petition was explained by the late
Justice Kayode Eso in Obih Vs. Mbakwe (1984) All NLR 134 at 148 when he said,
“With respect, to extend the immunity to cover the governors from being legally
challenged when seeking a second term will spell injustice.”

Similarly, in Turaki v.
Dalhaltu(2003) 38 WRN 54 at 168 the Court of Appeal (per Oguntade JCA (as he
then was) held that “If a Governor were to be considered immune from court
proceedings, that would create the position where a sitting Governor would be
able to flout election laws and regulations to the detriment of other person
contesting with him. This will make a nonsense of the election process and be
against the spirit of our national Constitution which in its tenor provides for
a free and fair election.” See Amaechi v INEC (2008) 5 N.W.L.R (Pt 1080) 227;
Baido v INEC (2008) 12 N.W.L.R (Pt 1101) 379.

In the case of the
Alliance for Democracy v. Peter Ayodele Fayose (No 1) (2004) 26 WRN 34 the
respondent challenged the issuance of a subpoena on him on the ground that
Section 308 has conferred immunity on him as a governor. While dismissing the
objection the Court of Appeal (per Muri Okunola JCA) held: “… the immunity
provided by the provisions of section 308 of the Constitution of the Federal
Republic of Nigeria 1999 on a State Governor is put in abeyance when his
election is being disputed before an Election Tribunal as to make him amenable
to being compelled by a subpoena to tender document(s) or give evidence before
the Election Tribunal.”

In recent time, there are
election related proceedings that have been filed against heads of government
despite the immunity clause in Section 308 of the Constitution. It is on record
that majority of the governors were respondents in several election petitions
arising from the 2015 general elections. Although the elections petitions have
been concluded a pre-election in which President Buhari was a defendant has
just been discontinued by the Plaintiff while the case against the governor of
Cross River state has been dismissed on the ground that the allegation of
falsification of age was not proved beyond reasonable doubt. Two pre-election
cases which are still pending against Governor Bagudu of Kebbi state and
Governor Okezie Ikpeazu of Abia state.

Immunity and criminal
investigations

Two weeks ago, the EFCC
traced N1.2 billion criminally diverted from the Office of the National
Security Adviser to a Zenith bank account belonging to the Ekiti state
governor, Mr Ayo Fayose. As soon as he learnt that the account was under
investigation Mr. Fayose invaded one of the branches of the bank at Ado Ekiti
with armed gendarmes and demanded for the withdrawal for the balance of N500
million in the account. To prevent the governor from transferring the fund the
EFCC froze it. and later obtained an ex parte order of interim seizure. In
challenging the action of the EfCC the governor said that his immunity had been
violated. Convinced that he had been betrayed by the bank Mr. Fayose said that
the money was actually donated by the bank to his campaign. As I have argued
elsewhere the action of the EFCC cannot be impugned having regard to the
combined effect of sections 28 and 34 of the Efcc Act as well as section 308 of
the Constitution.

However, assuming without
conceding that the bulk of the fund spent on his campaign was donated by Zenith
Bank Plc the governor has unwittingly justified the investigation and freezing
of his account by the EFCC. He has also confirmed that the humongous sum of
money was transported from Abuja to Akure in contravention of the Money
Laundering Act. By his utterances, Mr. Fayose is simply saying that the
management of Zenith bank stole depositors’ money and laundered it to fund his
political campaign contrary to section 90 of the Electoral Act, 2010 as
amended. On the basis of his own confessional statement, Governor Fayose and
the management of the bank are liable to be prosecuted for electoral fraud,
money laundering and criminal diversion of depositors’ fund to the tune of N1.2
billion. Therefore, whether it is public money stolen from via the office of
the NSA or depositors’ fund through the bank the decision of the EFCC to freeze
Mr. Fayose’s account is perfectly in order.

In Gani Fawehinmi vs.
Inspector General of Police (2002) 23 WRN 1 the Supreme Court held that
although public officers covered by the immunity clause cannot be arrested or
prosecuted they are not excluded from investigation for corruption and other
criminal offences. It was the view of Uwaifo JSC “The evidence may be useful
for impeachment purposes if the House of Assembly may have need of it. It may
no doubt be used for prosecution of the said incumbent Governor after he has
left office. But to do nothing under pretext that a Governor cannot be
investigated is a disservice to the society.”

Curiously, the interpretation
of the immunity clause was limited to section 308 (1) of the Constitution. It
is doubtful if the Supreme Court would have maintained the same stand if its
attention had been drawn to Section 308 (2) thereof where it is expressly
provided that a public officer protected by the immunity clause can be
subjected to “criminal proceedings in which such a person is only a nominal
party”. This means, in effect, that a public officer who enjoys immunity can be
made a defendant in a nominal capacity in criminal proceedings . In FRN v
Dariye (2011) 13 N.W.L.R (Pt 1265) 521, the Court of Appeal dismissed the
charges against the appellant, a sitting governor at the material time on the
ground that he was made a principal party in the criminal case. According to
Tur J.C.A:

“Learned counsel to the
appellant ought to have seen the impracticability, futility and absurdity of
instituting criminal proceedings against Chief Joshua Chibi Dariye either as
the Governor of Plateau State or in his name since he is not a nominal party
under section 308 (2) of the Constitution but the principal offender alleged to
have conspired with the other co-accused persons to commit the offences.”

Investigation of corrupt
practices involving heads of government by independent counsel

By virtue of section 52 of
the ICPC Act the Chief Justice of Nigeria is empowered to appoint an
Independent Counsel, who shall be a legal practitioner of not less than 15
years standing, to investigate any allegation of corruption against the
President, Vice President, Governor or Deputy Governor. At the end of such
investigation the Independent Counsel is required to make a report of the
findings available to the National Assembly or the House of Assembly of a State
as the case may be for the impeachment of the indicted officer.

When Justice M.A. Akanbi
was the ICPC Chairman he caused the commission to submit about about 20
applications to the Chief Justice of Nigeria seeking for the appointment of
Independent Counsel to investigate allegations of corruption against some
sitting governors. None of the applications was granted on the ground that
there was no budget for the office of the independent counsel! Instead of
applying for an order of mandamus to compel the Chief Justice to carry out his
statutory functions under the ICPC Act the case files were reportedly withdrawn
by the ICPC. Thus, section 52 of the ICPC Act has not been tested for the past
16 years.

Plea of immunity by state
governments

Recently, the
Attorney-General of the Federation (AGF) requested the efcc to investigate a
complaint alleging the criminal diversion of N11 billion from the coffers of
the Rivers state government. In a letter addressed to the AGF which has since
been advertised in some national dailies. In the letter the Rivers AG challenged
the competence of the AGF to direct the efcc to investigate the allegation of
the missing fund. Without missing words, the AGF was asked to leave the
suspected looters alone as the money alleged to have been criminally diverted
is owned by the Rivers state government. In support of his strange submissions
the Rivers state AG cited a couple of cases decided by the federal and state
high courts.

With respect, the
decisions relied upon by the Rivers states AG do not represent the correct
state of the law with respect to public accountability in Nigeria.
Incidentally, the Rivers state government was one of the defendants in the case
of AG, Ondo State v AGF wherein the Supreme Court had held that ” generally
speaking, power to prosecute for an offence is not determined by the ownership
of the property allegedly stolen or misappropriated and that the determining
factors are: (i) Who can exercise prosecutorial powers, (ii) The nature of the
offence and, (iii) Where the offence was committed-the venue. In Dariye v FRN
(2015) 10 N.W.L.R. (Pt 1467) 325 the Supreme Court reiterated the principle
when it held that “the owner of the subject matter of the charges is
immaterial. What is material is that a Federal enactment has been violated.”

It view of the fact that
the efcc has been asked by the AGF to investigate the alleged violation of
relevant federal enactments with respect to stolen funds belonging to the
Rivers state government it is hoped that the state AG will advise the suspects
involved to cooperate with the anti graft agency in the circumstance. Having
regard to the categorical pronouncements of the apex court in the AG, Ondo
state v AGF (supra) and FRN v Fariye (supra) the ownership of the alleged
missing sum of N11 billion is of no moment.

waiver of immunity

Realizing that the war
against corruption could not be meaningfully prosecuted as long as some public
officers were immune from prosecution President Obasanjo campaigned for the
abolision of immunity for heads of government. In 2001, he waived his immunity
and appeared before the Oputa Commission in response to the petition of Dr.
Beko Ransome Kuti. The allegation was that it was the military regime headed by
him which had authorised the violent destruction of Fela Anikulapo-Kuti’s
residence on February 18, 1977.

However, the other
ex-military dictators refused to appear at the panel of inquiry. In fact, one
of them successfully challenged the summons served on him in Fawehinmi v
Babangida. In setting aside the summons the Supreme Court held that the
Commission could not compel the attendance of any witness and that the federal
government had no power to set up a commission of enquiry outside the federal
capital territory.

Limitation of immunity
under international law

It is submitted that the
immunity conferred on state governors by the Constitution is not applicable
outside the territory of Nigeria as only the President is entitled to sovereign
immunity under customary international law. The case of R. (on the application
of Alamieyeseigha) v Crown Prosecution Service [2005] EWHC 2704 (Admin) is
relevant in this regard. In September 2005, following investigations by the
Proceeds of Corruption Unit of the Metropolitan Police in the United Kingdom
and the Economic and Financial Crimes Commission (EFCC), Chief D.S.P
Alamieyeseigha was arrested in London, questioned and charged with three counts
of money laundering.

A world-wide criminal
restraint order was obtained by the Crown Prosecution Service over his assets.
He then sought to quash the decision to prosecute him in London on the grounds
that, as a result of his position as Governor and Chief Executive of the State
of Bayelsa, he was entitled to state immunity in criminal proceedings brought
in the United Kingdom. The argument was rejected by the trial judge who held
that as a governor of state which is a constituent part of Nigeria, the
applicant was not entitled to sovereign immunity in respect of criminal
proceedings brought in the United Kingdom.

In FRN v Joshua Dariye
(2007) S.R (D) 179, the plaintiff filed a forfeiture proceeding against the
defendant in a British court in February 2007. The defendant who was then a
governor in Nigeria applied for a stay of proceedings or transfer of the case
to Nigeria on ground of forum conveniens. The objection was dismissed. During
the proceedings the defendant failed to provide an adequate explanation for the
source of his funds and the court ordered that his assets be returned to
Nigeria. The court dealt separately with the defendant’s property and his bank accounts.

However, the Rome Statute
to which Nigeria is a signatory does not recognise the immunity of the
President and state governors. Therefore, if a warrant is issued for the arrest
of any of the Nigerian leader for genocidal acts or crimes against humanity the
immunity conferred on the public officer by the Constitution cannot be
successfully invoked to shield him/her from trial before the International
Criminal Court. When President Omar Bashir of Sudan was in Nigeria last year to
attend an international conference a human rights body filed an action at the
federal high seeking to compel the federal government to arrest the guest and
hand him over to the Special Prosecutor of the ICC for genocide over the
massacre of over 300,000 people in Darfur, Sudan in 2005. As soon as he got
wind of the suit the visiting Sudanese President hurriedly left Nigeria

In the Minister of Justice
and Constitutional Development & Ors v The South Africa Litigation Centre
& Ors (Unreported Case no 867/15) President Al Bashir arrived in South
Africa to attend the African Assembly on June 13, 2015. As the Government took
no steps to arrest him the respondent, the South African Litigation Centre
(SALC), brought an urgent application on Sunday 14 June 2015, in the Gauteng
Division of the High Court, Pretoria seeking orders declaring the failure to
take steps to arrest him illegal. The order issued by the court which directed
the Jacob Zuma government to arrest him was flouted as President Bashir’s plane
was allowed to fly out of the country.

Upon hearing the
substantive matter, the trial judge condemned the government of South Africa
violating its obligations under the Rome Statute as it pertains to the arrest
of President Al Bashir. Dissatisfied with the ruling the government challenged
it on appeal. In dismissing the appeal the Supreme Court Appeal of South Africa
held that “The conduct of the Respondents in failing to take steps to arrest
and detain, for surrender to the International Criminal Court, the President of
Sudan, Omar Hassan Ahmad Al Bashir, after his arrival in South Africa on 13
June 2015 … was unlawful.”

CONCLUSION

Notwithstanding the
absolute immunity conferred on heads of government they may be sued in their
official capacity or made nominal parties in criminal proceedings. In order to
promote accountability and transparency in government and deepen the democratic
process the courts have whittled down the absoluteness of immunity enjoyed by
the heads of government with respect to electoral disputes and criminal investigations.
In the circumstance, the Chief Justice of Nigeria, the police and the anti
graft agencies should carry out their statutory duties by ensuring that
allegations of corrupt practices involving heads of government are probed while
the reports are either submitted the appropriate legislative houses or kept for
the prosecution of the indicted heads of government upon the expiration of
their terms of office.

No doubt, the rising wave
of executive lawlessness in the polity including the rapacious looting of the
treasury by some heads of government has led to an upsurge in the popular
demand for the abolition or removal of the immunity clause from the
Constitution. This disturbing situation was well captured by Tur JCA in FRN v
Dariye (supra) when he said:

“Experience has shown that
the immunity clause in the Constitution has

been abused by many
Governors and Deputy Governors and Nigerians

have been clamouring for
its removal from the Constitution. That has

been the yearnings of
those who want to rid the country of corruption

by persons thrust with the
responsibility of executing governmental

affairs of the Federation
or the States.”

This year alone the
Economic and Financial Crimes Commission has secured over 200 convictions in
respect of cyber crimes, 419, fraud, stealing and other cases. By the standard
of any legal system that is a record achievement. But the public perception is
that the EFCC is not succeeding because the fat cats have remained largely untouchable.
The anti-graft agencies have to devise new methods of fighting the menace of
corruption.

2. The criminal justice
system is successfully manipulated to frustrate trials. Once a big man or woman
is admitted to bail the defence counsel engages in dilatory tactics to wear out
the court and the prosecutor. As far as I am concerned, the EFCC has to go back
to the drawing board. When the EFCC started under Mallam Nuhu Ribadu it was
able to frustrate the rich. Unfortunately, the EFCC was taken over by powerful
criminal suspects in connivance with a former Attorney-General of the
Federation. Under the pretext of fighting corruption under the rule of law they
castrated the EFCC. Mr. Lamorde is just trying to rebuild the organization. It
is going to take some time because the damage is enormous. To arrest the
frustration of cases the EFCC has to go back to section 40 of the EFCC Act
which has abolished stay of proceedings even though the right of appeal is
preserved. There is no civilized country in the world where a criminal trial
can be stayed to await an appeal. Until recently, it was not part of our
criminal justice system. So, we have to restore the sanity of the system in the
overall interest of the society.

4. The Goodluck Jonathan
Administration is a continuation of the Umaru Yaradua Administration. To that
extent, not much has changed in the fight against corruption. However, I don’t
blame any regime for not fighting corruption. For me there are adequate
opportunities within the system to expose and shame corrupt people. A few
individuals and NGOs are taking advantage of openings in the system to expose
corruption. SERAP and others have just lost the move to get the CBN to account
for the mismanagement and diversion of the $12.4 billion the Ibrahim Babangida
junta. We are appealing against the judgment of the Federal High Court. The
CNPP is seeking an order of mandamus to compel the EFCC and ICPC to prosecute
President Olusegun Obasanjo for massive corruption. LEPAD has obtained an order
to compel the National Assembly to disclose the salaries and allowances of
legislators.

5. The Network Against
Corruption has demanded for the removal of some corrupt miniters on account of
corruption. The Coalition Against Corruption Leaders has joined issues with the
Federal and State Government over corrupt practices. On its own part the
Jonathan Administration set up some probe panels which have exposed the
unprecedented sleaze in government. It is left for Nigerians to put the reports
of such panels to maximum use. Many individuals and organizations are making
requests for information under the FOI. The Code of Conduct Bureau has been
sued for refusing to make available the assets of President Jonathan. Both
Chambers of the National Assembly have taken up the challenge of exposing
corruption. In the process legislators who soil their own hands are being
pursued. The EFCC has taken many persons and companies to court over the fuel
subsidy scam.

6. Frankly speaking, most
governments in the world are corrupt. It is the business of the media and other
civil society organizations to expose corruption in government. Before the
creation of the ICPC and EFCC corruption was fought in Nigeria by a few
patriotic individuals aided by the press. We have to go back to that glorious era
in the collective interest of the society. Unlike what obtained under the
Obasanjo regime when the government ordered the killing of innocent people
President Jonathan will not go out of his way to order armed soldiers to
destroy any community. But then, as the Commander-in-Chief of the Armed Forces
he has to check the excesses of the JTFs and restrain them from killing
innocent people in the fight against terrorism. The extra judicial killing of
suspects and other innocent people by the police is on the rise. This has to
stop. The parade of suspects by the police, NDLEA, SSS etc has to stop. The
society has to fight the increasing wave of rape. The discriminatory treatment
of women has to be tackled. The Jonathan Administration has inaugurated the
National Human Rights Commission. I expect a major intervention of that body in
the area of human rights violations. The new council is made up of men and
women of ideas, courage and commitment. There are other institutionalized
mechanism for protecting human rights abuse. The Legal Aid Council, Office of
the Public Defender, Mediation Centres, Public Petition Committees in the
legislative houses, public complaints commission etc. Nigerians should be
mobilized to seek redress in these institutions whenever human rights are
violated.

7. The Yaradua regime paid
lip service to the rule of law. Apart from compliance with a few court orders,
just a few, it was business as usual. The Appropriation Act was not fully
complied as the EFCC was taken over by corrupt elements. Impunity was the order
of the day. And when the President took ill the Attorney-General and a few
other ministers ruled the country by fraud. A supplementary budget was even
forged by the power mongers. The Jonathan Administration has not shown a greater
fidelity to the rule of law. In specific cases some heads of MDAs have been
called to order by the office of the Attorney-General. But institutions like
the NNPC and CBN have ignored requests made under the FOI. The Appropriation
Act is treated with contempt by the government.

6. Both the bar and the
bench in Nigeria have failed to realize the enormity of the crisis of
injustice. Hence reports of committees set up by the ex-CJN and the NJC on the
Judiciary have not been taken seriously. In fact, the judiciary has been much
more serious than the NBA in terms of judicial reforms. Senior lawyers have
become too complacent because they are reaping bountifully from the decadence
of the system. When we had an independent bar Nigerian lawyers once went on
boycott of courts to protest disobedience to one court order. That was under a
military dictatorship. But today disobedience of court orders is the order of
the day. And the NBA is indifferent to the growing culture of anarchy in the
land.

7. The Committee was made
up of retired Chief Justices and former Presidents of the Bar. No consultation
can be greater than that. Regrettably, the NBA is losing its relevance as far
as judicial reforms are concerned. By the way, why should the NBA wait for the
consultation of the CJN? The bar has to be pro-active and take its own
independent decisions and not turn itself into an appendage of the CJN or an
extension of the NJC. Unlike the CJN and NJC the NBA is a non state actor.

Being the paper presented
by Femi Falana at the 60th birthday anniversary of Professor Julius Ihonbere,
Secretary to the Edo state government at Benin City, Edo State on Saturday,
July 2, 2016.

Source: PM News Nigeria

A few things about the Code of Conduct Tribunal (CCT)

by Legalnaija | Apr 6, 2016 | Uncategorized

The
Code of Conduct Tribunal is established by Section
15(1) of the Fifth Schedule, of the
1999 Constitution of the Federal Republic of Nigeria. It provides that –

“There shall be
established a tribunal to be known as Code of Conduct Tribunal which shall
consist of a Chairman and two other persons.”

By
virtue of the further provisions in Section
15, the Chairman of the tribunal must be qualified to hold office as a
Judge of a superior court in Nigeria. Also the Chairman and other two members
are appointed by the President on the recommendation of the National Judicial
Council.

The
Chairman’s tenure of office ends when attaining the age of 70 and the Chairman
cannot be removed by the President except upon an address supported by
two-thirds majority of each House of the National Assembly praying that he be
so removed for inability to discharge the functions of the office.

According
to section 18, where the Code of Conduct Tribunal finds a public officer guilty
of contravening any of the provisions of the Code of conduct for public
officers, such public officer may be directed to vacate the office or seat in
any legislative house as the case may be, or, be disqualified from membership
of a legislative house and from holding
any public office for a period of 10 years or seizure and forfeiture to the
State of any property acquired in abuse or corruption of office. These above
stated penalties are without prejudice to any penalty that may be given by a
Court if the offence is of a criminal nature.

Being
a code of conduct for Nigerian public officers, according to the Constitution,
the tribunal has jurisdiction over any of the following persons including;

i.
The President and
Vice-President.

ii.
The President and
Deputy-Speaker of the Senate, House of Representatives and Speakers and
Deputy-Speakers of Houses of Assembly of States, and all members of legislative
houses.

iii.
Governors and
Deputy-Governors.

iv.
Chief Justice of Nigeria,
Justices of the Supreme Court, Court of Appeal, other judicial officers and all
staffs of the court of law.

v.
Attorney- General of the
Federation and States.

vi.
Ministers of the Federal
Government and Commissioners of State Governments.

vii.
All Chiefs of the armed
forces.

viii.
Inspector- General of
Police, all members of the police and security agencies.

ix.
Secretary to the
Government and Head of the Civil Service including permanent secretaries and
all members of the civil service, either Federal or State.

x.
Ambassadors, High
Commissioners and other officers of Nigerian missions abroad.

xi.
Chairman and members of
local government councils.

xii.
Chairman and members of statutory
corporations.

xiii.
All staffs of Universities
and institutions owned or financed by the Federal or State Government.

xiv.
Chairman and members of
staff of permanent commissions or councils appointed on full time basis.

Adedunmade
Onibokun, Esq.

@adedunmade

dunmadeo@yahoo.com

NOT EVERY CHILD BORN IN NIGERIA IS A CITIZEN

by Legalnaija | Oct 4, 2015 | Uncategorized

Jane sat in the plane as it cut through the
sky towards New York, her twin babies would be due very soon and she will most
likely be delivering them in the United States. The trip cost her and her husband
a lot of money but they believed it was well worth it. They trusted the foreign
health care system better than the system back home and they believed the
doctors would be more competent. The knowledge that her children will be U. S citizens
also wasn’t lost on her.

Jane’s story is quite familiar; many
parents always love to deliver their children abroad knowing they will be
citizens of these foreign nations. This was also the case in England until the
British repealed the law.

However, foreign nationals who have their
children born in Nigeria cannot have the same privilege Jane would have, as
children born in Nigeria whose parents are not Nigerian citizens do not
automatically become Nigerian citizens. The law on Nigerian citizenship can be
found in the Constitution.

Section
25 of the 1999 Constitution provides that only the following persons are
citizens of Nigeria by birth namely;

Every
person born in Nigeria before the date of independence either of whose parents
or any of whose grandparents belong to a community indigenous to Nigeria; Provided
that a person shall not become a citizen of Nigeria by virtue of this section,
if neither of his parents nor any of his grandparents was born in Nigeria

Every
person born in Nigeria after the date of independence either of whose parents
or grandparents are citizens of Nigeria;

Every
person born outside Nigeria either of whose parents is a citizen of Nigeria.

This
is the position of the law.

Adedunmad
Onibokun Esq.

@adedunmade

dunmadeo@yahoo.com

RIGHT TO THE DIGNITY OF OUR HUMAN PERSON

by Legalnaija | Sep 18, 2014 | Uncategorized

source: newsexpressngr.com

It is quite sickening when I watch
videos, see pictures or read stories of people who are victimized for one
reason or the other by members of the public on the pretext that such people
have been accused of committing crimes.
It is more troubling when such acts are carried out without referring
the accused to a court of justice or at least to the police because most times,
the allegations are usually false. A case
in point is the Aluu4 tragedy where four students were falsely accused of being
thieves by a debtor who was trying to avoid paying his debt and the community
gathered a mob who beat, set ablaze and killed the four promising youths in
cold blood or the woman accused of stealing in a popular Lagos market and was
stripped naked, beating, sexually assaulted and paraded by the hoodlums in the market.
It’s funny how most Nigerians look away or join the fun rather than fight to
protect the rights of the Nigerian being breached and probably save them from
the violent implications of mob justice.

Security agencies are also not
absolved from inflicting acts of inhuman and degrading treatment on accused
persons held being bars, it’s not unusual to see policemen beating, slapping
and man-handling citizens because they refuse to follow the policeman’s orders.
It’s a rule of thumb that you wouldn’t want to cross a solder or you may as
well be ready for ~~maximum shishi~~ a torrent of blows and cracks from a
horse whip. It sickens me when I come across instances where Nigerians are
treated like second-class citizens in their country by the very agents employed
to protect them. This is an act that cannot continue with impunity, the
provisions of the Constitution cannot continue to be trampled on.

Every individual according to
Section 34 of the Constitution is entitled to respect for the dignity of his
person and no person shall be subject to torture or inhuman or degrading
treatment; neither shall any person be held in slavery or servitude; and no
person shall be required to perform forced or compulsory labour. Mob justice is
a violation of this right, so also is torture by the Nigerian police or any
other member of the armed forces that use such ineffective tactics of
investigation.

source: Google

It is important to note that, any
labour required in consequence of the sentence or order of a court or any labour
required of members of the armed forces or the police force in pursuance of
their duties do not come under this rule. Neither does any communal service,
civic obligation to a community or act of compulsory National service come
under this rule.

The National Human Right
Commission is saddled with the responsibility of protecting the rights of
Nigerians and investigating/prosecuting cases of inhuman and degrading
treatment against Nigerians. Lawyers
also have a duty to protect the sanctity of the law and the promotion of the
Rule of Law in the country by standing up for the rights of the common Nigerian.
We need to do more as a people and as a Nation to promote the fundamental human
rights of everyone.

Do you know any instances where
people have been subjected to degrading treatment, lets here it in the comment
box.

Adedunmade Onibokun, Esq.

@adedunmade

Adedunmade is a legal practitioner
in Lagos, Nigeria. He holds a Masters degree in International Business Law from the University of Bradford and
publishes the Legalnaija law blog.