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Mini Grids; Does the new regulation depict a bright future for Nigeria | Okezi Okah-Avae

Mini Grids; Does the new regulation depict a bright future for Nigeria | Okezi Okah-Avae

by | May 16, 2017 | Uncategorized

Introduction
The
Federal Government of Nigeria (“FG”) has long since declared its
intention to solve the country’s perennial electricity problem. However, the
conclusion of the first phase of the privatization of the power sector in
November 2013 has not exactly led to the uninterrupted supply of power once
promised to the populace. Between 50-55% of approximately 180 million Nigerians
do not have access to grid electricity, while the 45-50% of Nigerians who are actually
connected to the grid especially in urban locations, are largely in darkness. Furthermore,
not only are these Nigerians enduring crazy, unrealistic bills but also have no
choice other than to spend excessive amounts on electricity generation sets.


Nigeria
would require more than 160,000MW to achieve its desired electricity generation
capacity. The FG estimates that by the year 2020, the country’s generation
capacity would be in excess of 40GW (40,000MW), and the energy mix will
constitute 69% thermal generation; 17% hydro; 10% coal; and about 4% of
renewable.

The on-grid
challenge
On-grid
generation refers to a system of power generation evacuated through the
national grid to off-takers which may be the Nigerian Bulk Electricity Trading
Company Plc (“NBET”) who through vesting contracts supplies the power to
the power distribution companies (“Discos”); or directly to Eligible
Customers, as may be declared by the Minister of Power, Works and Housing,
Babatunde Fashola.

However
due to certain challenges highlighted below, Nigeria has witnessed an alarming
rate of frequent collapse of the power grid. It is gathered that the most
recent system collapse was due to frequency constraints on the grid. Figures by
the Transmission Company of Nigeria showed that power generation dropped
significantly from 3,222.5 MW on April 26, 2017 to 113.6 MW on April 27, 2017.
This, according to industry sources, is despite the increased gas supply to the
power plants following the ‘stability’ in the Niger Delta region.

Further,
it was reported in early April 2017 that there was a prior collapse of the
national power grid on April 9, 2017 resulting in the drop in generation from
3,069.5MW to just 108.7MW. However, this moved up marginally to 240MW the next
day. Heavy rainfall at three transmission stations is ascribed to have led to
load reduction which prompted high frequency in the system, subsequently
triggering the collapse of the electricity grid.

Most
of the power consumed by Nigerians is actually on-grid power which the Discos supply
to these consumers. In addition to the above stated reasons for the collapse of
the power grid, on-grid power generation has had other (and notable)
constraints, some of which are identified below:

   a)   
Unavailability of Gas: About 85% of installed generation capacity is
thermal. Despite Nigeria’s large gas reserves, production has been
significantly low. Gas constraints is said to reduce the power generation
capacity by 1,995MW, and reasons for this include uneconomical gas prices; gas
pipeline vandalism; insufficient gas infrastructure; and uncertainty in
regulation and fiscal policy for gas, amongst others.
    b)   
Inadequate Transmission Infrastructure:
Out of a total installed capacity of 12,522MW, the
existing transmission system is only capable of delivering about 5,300MW. A
major reason for this is Nigeria’s current weak transmission infrastructure
which is mostly radial. This means that it’s a single path of transmission with
a power source at one end. Thus any fault in the path could potentially lead to
a collapse of the transmission network. The Transmission Company of Nigeria
plans to upgrade the transmission system to a capacity of 11,000MW by 2020
(subject to adequate funding and completion of projects planned for
implementation); however, the transmission infrastructure in its current state is
unable to accommodate the estimated increase in generation by 2020.

c. Liquidity Issues: Since
the privatization of the power sector in November 2013, the Nigerian Electricity
Supply Industry has faced with liquidity issues resulting from non-cost reflective
tariffs. The Discos have found it difficult collecting sufficient revenue to
pay their power bills which should sustain the rest of the value chain that
includes the Gencos, gas suppliers and service providers. This has led to a cash
crunch in the market and a clear disincentive to investment in additional
generation or capital expenditure for the Discos.

d. Nigerian Integrated Power Project (NIPP)
Privatisation : The privatization process of NIPP plants should have had
the capacity to add close to 4,775MW to the grid. Unfortunately, issues such as
non-availability of gas; non-completion of some of the NIPP plants; and
inadequate gas and transmission infrastructure had hampered this development. Furthermore,
the current liquidity issues, and the lack of government credit enhancements in
the present circumstances, have not given potential investors the confidence to
invest in the acquisition of the assets. Access to funds from Nigerian Banks is
limited, and the alternative is international funding which would be subject to
more scrutiny by international banks.
Given
the above, it is imperative that whilst the issues are being resolved, we
should look at viable solutions for increasing generation that would hopefully
be somewhat isolated from some of the issues raised above.

Mini-Grid Solutions
In
recent years, Nigeria has been at the forefront of promoting a cleaner and more
modern energy in Africa. The regulatory space around solar power investments in
Nigeria has also seen some transformation, which has served as an incentive for
the recent growth in both off grid and on grid solar power developments. However,
there is still so much to achieve in this space but the willingness of the FG
and policy makers to further develop the space is evident and noted.

It
should be noted that off-grid technological solutions mainly mini-grids that
can power communities without access to electricity (unserved), as well as
provide reliable power supply to under-served urban centers, metropolis and
housing are being blocked by regulations that seem to place them and the
Nigerian consumers, at the mercies of Discos.

According
to the Nigerian Electricity Regulatory Commission (“NERC”), power
distribution firms, otherwise known as Discos, will soon begin the development
of mini-grids to augment electricity supply to households, businesses and
institutions in the country.

A
mini-grid is any electricity supply system with its own power generation
capacity, supplying electricity to more than one customer and which can operate
in isolation from or be connected to a distribution licensee’s network. Within
the regulations, the term mini-grid is used for any isolated or interconnected
mini-grid generating between zero kilowatt and one megawatt of generation
capacity. In accordance
with its power to make regulations, the NERC is currently working on a new
mini-grid regulation with the main objective of accelerating electrification in
areas without existing distribution network (also known as unserved areas) and
areas with an existing but poorly electrified or non-functional distribution
grid (also known as underserved areas) by attracting participation of private
sector, communities and non-governmental organizations in achieving nationwide
electrification. It is imperative to point out that the NERC intends to use the
draft Mini Grid Regulation to attract investments into mini-grids without
hampering the operational successes of the Discos. After a comprehensive review
of the draft Mini Grid Regulation, the question of whether the proposed
regulation shall work for investors’ spring to the mind of the writer of this
article. 

The Mini Grid
Regulations & Some of its Technical Issues
The
proposed regulation will provide massive investment opportunities for current
and potential mini grid power providers, solar power companies in particular,
as Nigeria has a serious resource advantage in that area. According to industry
experts, the regulation shall sought to minimize major risks associated with
mini-grid investments such as sudden tariff changes and stranded mini-grid
operator investments due to extension of main grid.
Engr.
Chinedum Ukabiala, the Deputy General Manager at NERC and the Head of Renewable
Research and Development (RRD), suggested that the strategic gains of the Mini
Grids Regulation to market players are that there is the opportunity to start a
small business in electricity generation and distribution and then expand to
bigger utility companies with the expected benefits of improved revenues and
returns. He believes that it is easier and simpler to start a small business
than large scale businesses in the electricity industry and this is more so
when the regulation will be light-handed.

Late
2015, NERC invited inputs from the general public whilst preparing the first
draft of the Mini Grid Regulation. Subsequently, NERC issued a statement which
said “The regulation seeks to minimize
major risks associated with Mini-Grid investments such as: (1) Sudden tariff
changes, as tariffs would have been agreed in advance by the relevant parties;
and (2) Stranded Mini-Grid operator investments due to extension of main grid
(into mini grid geographical locations). In such cases, a fair compensation
mechanism would be applied for Mini-Grid operators that choose to exit.” 

It
is expected that the Mini Grid Regulations should aid in the improvement of the
state of power access in rural Nigeria while simultaneously providing an
opportunity to deploy more renewables such as solar instead of fossil-sourced
power. Additionally, the possibility of having these mini grid projects
completed in record time, relative to delays in main grid expansion also
provides an opportunity for rapid power-induced economic
development/industrialization in rural areas. Licensing burdens would
predictably also be reduced drastically or completely removed. Further, a
flexible tariff structure that is not over-regulated but would guarantee
returns on investment would be implemented. The Mini Grid provides a policy
also make recommendations to the Federal Government of Nigeria for specific
incentives and, especially, for Solar. It will remove exclusivity to the
geographical area of the (current) distribution companies.

The
manufacturing sector in Nigeria, which has long suffered due to lack of steady
power supply from the grid, should be a key benefactor of this Regulation.
Already many manufacturing hubs and organizations in Nigeria have been reliant
in one way or another on a certain form of mini grids, for example a shared
power plant and/or on-premise captive sources. However, the economics of
procuring power from these sources cannot be as advantageous as commercial and
third-party controlled distributed sources, where power providers will benefit
from the economies of scale in supplying several consumers, as well as the
improved efficiencies of hybrid mini grid systems (such as Solar/Diesel
hybrids). These and several other incentives will be cascaded to the connected
mini grid consumers. Thus as the regulation for mini grid owners/power
suppliers become better, consumers in turn receive more reliable and affordable
power.

In
spite of this and several other already completed reforms in the solar space in
Nigeria, there seems to be calls for more to be done, especially when one
compares Nigeria with some other solar markets in Africa. For example, while
the importation of solar panels enjoys free import tariff in Nigeria, to bring
in other components such as batteries used in setting up a solar power plant is
subject to an unfair tariff and Value Added Tax (VAT). Kenya is a good example
where the Energy Regulatory Commission (ERC) has zero-rated the import duty and
removed Value Added Tax (VAT) on renewable energy equipment and accessories
including solar.

The
Mini-Grid Regulation would drive new and improved investments in energy supply
solutions to rural communities in Nigeria. Apart from achieving deployment of
renewable energy sources, this regulation would help cut deficit in power
supplies in rural communities. At the time of writing this article, the new
regulation is still undergoing public consultation.

According
to the regulation, a mini-grid developer who intends to distribute power larger
than 100kW from the isolated mini-grid is required to apply for a mandatory
permit through NERC. However, if the generation capacity of the power station
installed is larger than 1MW, the plant is not a mini-grid under the proposed
regulation and other regulations apply. In order to encourage mini-grid
development in Nigeria, it is imperative that cost-reflective retail tariffs
should be utilized which is the intention of the regulation. It is the aim of
the tariffs to be higher than current electricity distribution company’s retail
tariffs.

Private
sector funding will play a key role in closing power supply gaps in the country
and this will not come unless the private investors are sure of favorable
return on their investment. NERC intends that the regulation takes measures to
de-risk investment in power supply infrastructure to attract necessary
financing. The NERC‘s strategy is to use regulatory instruments to
promote not only the conventional sources but also all options for
sustainability including: energy efficiency, renewable energy, clean coal
technology, rural electrification, mini grid and distributed generation.

However, in spite of NERC’s intentions to put in a
regulatory framework to attract renewable energy based power and promote
sustainable energy economic growth, the proposed mini-grid regulation puts
mini-grid operators at the mercies of Discos, while ignoring and denying the
Nigerian customers the choice to access reliable power supply. For instance, Section
7(1)(b) of the Regulation requires that there must be confirmation of the
Disco’s expansion plans which have to be approved by NERC to ensure that the
mini-grid activities will not interfere with the expansion plans into the
designated Unserved Area of the Disco before a permit to construct an isolated
mini-grid can be granted. There is need to clarify that the
mini-grid developer does not need to seek the confirmation of the distribution
licensee’s expansion plan; rather, they have to simply obtain the approval of
NERC. The Regulation should clarify the frequency and protocol for the
Distribution Licensees to submit their expansion plans to the NERC. This writer
further recommends that the Regulation should clarify the frequency and
protocol with which the Distribution Licenses are required to submit their expansion
plans to NERC as it is assumed that the Regulation assumes that Discos would
submit their expansion plans on their own volition. The Regulation does not ensure
that the Distribution Licensee has the resources to back up its expansion plan
and does not deprive a community their inalienable right to power supply that
could have been met by a mini-grid developer. Alternatively, the Regulation
should stipulate stringent penalties for a Distribution Licensee that does not
deliver on its published expansion plans.

Furthermore, according to Section 7(1) (c) of the
Regulation, the applicant must obtain a written consent of the Disco of the
intended area where the operational period of the mini-grid developer within
the five year expansion plans of the Disco.

It is the opinion of the
writer of this article that according to both Sections 7(1) (b) and (c), in
order for the end user (either underserved or unserved) to have access to
reliable electricity, via the mini-grid, they must not only have a written
consent from Discs approving this, but they must also have access to the five
(5) year expansion plans of the Discos, which must have been approved by NERC.

The writer envisages some
likely problems which may arise a direct result of the foregoing. Firstly, what
exactly are the expansion plans of the Discos? In a situation where the Discos
have come up with these plans, it would be helpful if these plans have already
been delivered to NERC for its approval. Further, if indeed the expansion plans
are with NERC, then why is NERC not making their plans public and taking full
responsibility for its implementation, so that the Nigerian public can know when
they can realistically expect access to steady electricity?

In addition, one wonders
what would happen if the Discos are unable to execute their plans after five
years having denied Nigerians access to electricity as well as the intended
investments by the mini-grid operator; as the new regulation neglected to
provide any sanction or penalty for such failure. It should be recalled that the
disclosure of the expansion plans of the Discos was a part of the criteria
during the handover of the Discos to the successor companies. However, till
date Nigerians are yet to see the plans.

It is suggested that Section
7(1) c should clarify that a written consent from the Distribution Licensee is
only necessary if a mini-grid developer chooses to develop in a location that
is already part of the published expansion plans of a Distribution Licensee. In
addition, where a mini-grid developer needs to seek the consent of a
Distribution Licensee, the regulation should make it clear that the latter has
to respond to the consent request within 30 days. The mini-grid developer may
assume consent in the event that the consent is not received within the
stipulated period.

Further to Section 7(1) (d) of the proposed regulation
electricity consumers in underserved areas cannot independently chose to set-up
their own isolated mini-grids. For example, an estate would not be able to
decide on its own to seek isolated mini-grids for supply of electricity in
place of an incapacitated Disco due to the fact that the estate is in an
unserved area (i.e. off-grid).

According to Section 7(1)
(g) of the Regulation, Mini-Grid developers are expected to ensure that “all
necessary land for construction and installation of all assets has been
acquired and all necessary permits have been granted to the Mini-Grid
Developer”. This provision assumes that the investor would have acquired all
the land and assets prior to securing the approvals. Although it is
understandable for NERC to insist on screening out investors who may not have
the prerequisite technical and financial capacities, it is important that it
does not douse the interest of potential investors. It is advisable for NERC to
balance the need to select credible investors with realistic demands from
investors. A number of the investors may need to first secure the approvals to
unlock the resources required to acquire the land and other assets. Many of the
financial investors may not wish to expend significant resources if there is a
risk that the approvals may not be obtained. NERC should issue the approval
once the investor is able to demonstrate their financial and technical
capabilities. For instance, in lieu of full payment for the land, NERC may
accept evidence of an option on the land and assets. The Regulation should
require investors to show that they have acquired land rights.
Section 17 (1) provides for
compliance to all existing environmental laws by Mini-Grid Operators. The Regulation
does not state explicitly if an Environmental Impact Assessment (EIA) is
necessary for all scales of mini-grid operations especially considering the
cost of these studies. It is the opinion of the writer of this article that to
safeguard against environmental hazards (such as improper solar battery
disposal), there should be a requirement for Mini-Grid developers to register
with the Federal Ministry of Environment. Furthermore, the FG should stipulate
and enforce the product standards for the various components used in the mini-grids
(batteries, panels, wires, etc.) and enforce a disposal programme that
safeguards the environment.

Pursuant to Section 10(2)
of the Regulation NERC is required to issue a permit pursuant to Section 7 or
Section 8 or approve a Tripartite Contract pursuant to Section 9 to an
applicant within a maximum period of 30 days from the date of receipt of
complete documentation. This Regulation fails to provide for any stipulations
(or penalties) to ensure NERC meets the 30-day timeline. It is recommended that
should a response not be received from NERC within the prescribed 30 day
period, the integrated mini-grid developer should deem the tripartite contract
approved.

Regarding inspection of
accounts, Section 13(7) and Section 13(8) of the Regulation pertains to the inspection
of accounts for the purpose of adjustment of tariffs and ascertaining
depreciated value as request by Mini-Grid Operator and inspection of accounts
for the purpose of adjustment of tariffs and ascertaining depreciated value as
requested by the Community. Both sections suffer from lack of clarity as to how
the amount referred to in Section 13(7) shall be computed and as to how NERC
shall pay the Community a fee in the event of the Community requesting to
inspect the accounts. It is suggested that the requisite clarity should be
provided in the aforementioned sections to eliminate any future disputes or
misunderstanding amongst stakeholders.

Another attempt at prevention
of dispute can be found in Section 20 (2) which pertains to determination of Tariffs
and Other Usage Charges. Here the Regulation stipulates that interconnected
mini-grid operators shall pay the Distribution Licensee a usage charge that
shall be agreed upon between both parties and NERC. However, where the
Interconnected Mini-Grid Operator and the Distribution Licensee are unable to
agree on the usage charges, the methodology described in Annex 8 shall be
applied as a guideline. The next logical question is whether Annex 8 provides
clarity on the methodology for calculating usage charges for interconnected
min-grids or if such could lead to disputes? The Regulation should be more
explicit (preferably with a formula) on how the usage charges should be
determined. Lack of clarity may likely result in disputes. Furthermore, Annex 8
should provide clarity on how disputes should be resolved in a cost and time
efficient manner.

Although the opportunity for mini-grids to come to
fruition is commendable, it is important that NERC provides policies, laws and
regulations that would protect and improve the lives of Nigerian citizens.
There should be avenue for increased competition and innovation to achieve
this. There should provisions in the proposed regulation that would compel the
Discos to disclose publically their five (5) years expansion plans, as well as
review the mini-grid regulation to reflect the interest of the Nigerian electricity
consumer at the core. This is can only be guaranteed when the Nigerian energy
consumers are availed the opportunity of choice.

It is encouraging to note that the Regulation already
seeks to minimize major risks associated with mini-grid investments such as
sudden tariff changes and stranded mini-grid operator investments due to
extension of the main grid to cover the mini-grid area. This basically permits
a fair compensation mechanism that may be applied for mini-grid operators that
choose to exit at any time.

The 2016 Mini-Grid
Regulation adds to the growing list of draft and approved policies and plans
for the renewable energy market in Nigeria. The increased activities in the
off-grid renewable energy market (signaled by the increase in policy documents)
are encouraging; however, investors need clarity on the approved policies and
plans for the sector. There is need for an integrated and comprehensive
national electrification plan that harmonizes the various plans. The national
electrification plan should consider the various regions viable for mini-grids.
It should delineate the areas that are best served by on-grid distributors.
Several factors should be considered in creating this plan including cost
effectiveness, natural resource availability, and the infrastructure capacities
of the Discos. Furthermore, the plan should integrate the various resource
plans that have been developed by Discos, government and development agencies
in the power sector. The resource should be public and easily accessible.

Conclusion
The Draft 2016 Mini-Grid
Regulation lays the groundwork to the emerging frontier in Nigeria’s
electricity supply industry. Given the current state of grid power in Nigeria,
an alternative is needed to provide electricity to the over 100 million
Nigerians who do not have access to grid power. Mini grids have revolutionised
other smaller countries in Africa, Asia, and South America and there are
promises and lessons to be learned from those experiences. At the time of writing this article, NERC has
reiterated its optimism that the draft Mini Grid Regulation
will become law in the first quarter of 2017. Stakeholders’ views have been
taken and deliberated upon. It is the wish of the writer of this article that
NERC may consider the recommendations made here in to achieve the progress and
development of Nigeria’s power sector.


OKEZI OKAH-AVAE 

Okezi is an Energy
& Natural Resources, Senior Associate at Bloomfield Law Practice

 Photo Credit – www.youtube.com 
Expansion Of Business Visa Activities in Nigeria | Dayo Adu

Expansion Of Business Visa Activities in Nigeria | Dayo Adu

by | Mar 21, 2017 | Uncategorized

Background: This memo seeks to enlighten
Partners, business visitors to
Nigeria, companies, investors and human
resource experts on the new policy direction of the Nigeria Immigration Service
(“NIS”) in line with the 60-day national action plan for ease of doing business
in Nigeria that was approved recently by the Presidential Enabling Business
Environment Council (PEBEC).

The Policy expands on the category of
persons and activities that can be
undertaken when issued a visa at entry
point. It further allows those visiting from countries where Nigeria does not
have an embassy to obtain visas at the port of entry. The aim of the policy is
to remove bureaucratic bottleneck and encourage business travellers and
tourists.
Permissible Activities on the Business Visa
on Arrival; The permissible activities have been revised and expanded by the
NIS to cater for foreign travellers who wish to travel to Nigeria for Old
Activities: meetings, conferences, seminars.
New Activities: contract negotiation,
marketing, sales, purchase and distribution of Nigerian goods, trade fairs, job
interviews, training of Nigerians, emergency/relief work, crew members, staff
of NGOs, staff of NGOs, researchers and musical concerts”
Who qualifies; foreign travellers, Artist,
High net worth Individuals, Businessmen, business visitors, and Investors
coming to Nigeria
Implementation time frame: Immediate
New Developments further introduced by the
NIS:
· The harmonization
of multiplicity of airport arrival and departure form/cards into a single form
for all agencies of government to save foreign visitors from the current
frustrating practice of filling three different forms or more and the
decentralization of immigration services to the state commands.
· Re-issuance of
passports for change of names due to marital reasons or lost cases have been
decentralized to all state commands and foreign missions to save passport
holders from additional costs and inconvenience of travelling to the service
headquarters in Abuja.
· Additional 28
offices have been opened for issuance of residence permits in Nigeria, bringing
the issuance of Combined Expatriate Residence Permit And Aliens Cards (CERPAC)
closer to the doorstep of employers of expatriates at all 36 states and FCT.
Dayo Adu,
Partner -Famsville Solicitors
Ed’s Note – This article was first
published here.

Nigerians and the MMM Craze by Ahmed Olaitan Banu

Nigerians and the MMM Craze by Ahmed Olaitan Banu

by | Dec 8, 2016 | Uncategorized


 

 “Mystery creates wonder
and wonder is the basis of man’s desire to understand”….Neil
Amstrong 
Certain events occur in
life that we find quite difficult to wrap our minds and thoughts around. It
took me a while to make up my mind on the need for this write up. Why? Because
I just can’t seem to understand what is going on – I see irrationality every
everywhere. 

There has been a recent
craze in the Nigerian financial sector that I am sure a lot of you are aware of
– MMM. From my research, MMM is a scheme that enables its participants to earn
an interest of 30% per month on the capital pledged into it. Hence, making it
some sort of investment. This was my initial understanding. However, further
probing revealed interesting findings which led to my conclusion that it’s more
of a Ponzi scheme where money flows between participants without recourse –
some sort of an Hybrid Ajo. 
A common term of the scheme – provide
help and get help – started to ring bells in our ears from its very courageous
participants. I call them courageous participants because my
discussions with the participants who market – some have taken it upon
themselves to self-market to earn a bonus – made me realize that sufficient due
diligence was not been done on where and how their return on capital will be
generated to pay the 30% interest prior to making their pledges. 
If we think of the annual
interest to be earned by pledging to MMM which is 240% (12 x 30%) return on
capital, one sees irrationality coming to play. Let me reiterate; 240% return
per annum. Seriously!!!!! Then the available capital in Nigeria should be
diverted to MMM as the traditional knowledge on capital allocation is that
capital should be allocated to resources that generate the highest return. Even
entrepreneurs like our boss; Aliko Dangote, should be into MMM. Banks should
also cease to exist. I don’t even think there is a company in the world (yes,
the world) that provides a return of such figures to its shareholders. (if you
know such company please contact me). 
Also, I see Nigerians
exhibiting the recency bias. This is a behavioral cognizance where
people tend to remember only recent events and wipe out the memory of all other
events that had previously occurred. In Nigerian terms, this is synonymous to “As
E Dey Hot”. This is a normal behavior in Nigeria; everybody wants to be
involved in the latest trend, events, happenings etc. The “do not let it
pass me by” syndrome. Funny how we have forgotten about the Nospecto and
Wonder Banks of early/mid 2000’s and how they dealt with us. For people that
certainly do not recall, please google them up and read stories. 10 years ago
is not too far off, probably in 10 years’ time schemes like this will spring up
again.- that is if MMM does not last till then. Additionally, I see traces of
the Herding behavior where people do things just to follow the crowd so
as not be seen as losers or fake people. In Nigeria, this is also known as the
“Follow-Follow” syndrome – The act of doing what the people around you
are doing, even if you do not know what that are doing. 
Could all these behavioral
biases be the reason for the MMM prominence?
Going further to look at
the impact of the MMM Craze on the world I am most passionate about – the
Investment Sphere, I get scared and see a serious disintermediation risk occurring.
The fact that Nigerians are pulling money out of Mutual Funds, Banks etc just
to participate in MMM is absurd. Moving money from the safe to the unsafe
leading to unexplainable excessive risk taking. Investors are now demanding for
returns equivalent to the 30% per month promised by MMM. If it can’t be
matched; No Deal. Investors have started asking industry operators to find out
what MMM is doing and replicate it. 
One of my unsolved puzzle
in the Nigerian investment industry is that the industry is controlled by
foreigners. Occasionally, I hear industry operators’ concerns about the lack of
foreign participation and how they watch out for monetary policies that
increase foreign capital participation in the market. So where are all the
domestic investors and their capital? Nigerians save but where do the money go?
At least for now will it be safe to say MMM?  
The MMM trend has got a
lot of Nigerians wagging their tails. They have wagged their tails so bad that
there are indications that the National Assembly wants to enact a policy to ban
MMM. I doubt if that ban will succeed. Why? Because it’s a rage and when
Nigerians are crazy about something you dare not interfere. 
So what has MMM done to
make Nigerians – the poor, middle-class and rich – bring their money out from
their hiding places to take such excessive risk? The risk in excess of
equity investing. I have mentioned below some of the reasons I believe MMM is
currently a hit in our environment.
1) The love for big
returns: the 30% interest per month was very attractive. This may be true
because recently, there was the Treasury Bill craze (discussion for another
day) ; 
2) Timing: MMM caught us
at the right time when recession kicked in hard and there is a need for money
to match rising cost of living; 
3) Greed: Nigerians like
quick money. The love to earn money we did not work for. Fast money syndrome. 
4) Social Media: helps in
self marketing MMM. A lot of people brag about their winnings on social media
platforms which has got other people interested – the “Follow-follow” syndrome
So the question is “How
long is this craze going to last?” Why? I have observed that the MMM model is built
on participation and the moment the participation seizes and money stops to
change hands, the participants left holding the bag will be left stranded. This
brings to mind the drinking game we indulged in while in school where someone
spins a bottle and the person the bottle is pointed at when it stops spinning
drinks all the beer in his cup. 
So imagine the MMM craze
stops while you just provided help, who will be there when you want to get
help. Aha!

Photo Credit – www.behindmlm.com 
Nigerian Senate Considers Report Of Ad-Hoc Committee On The State Of The Economy & Passes Five Motions

Nigerian Senate Considers Report Of Ad-Hoc Committee On The State Of The Economy & Passes Five Motions

by | Oct 4, 2016 | Uncategorized



The Senate on Tuesday,
September 27, 2016 commenced consideration of the Report of its Ad-hoc
Committee on the State of the Economy. The Report presented before the Chamber
for consideration has seventeen recommendations. The recommendations were
extensively deliberated upon by  Senators and at the end most of them were
adopted by the Chamber.

According to the report,
the Senate of the Federal Republic of Nigeria conducted a two-day intense and
wide ranging debate on the state of the Nigerian economy. It observed that the
negative GDP growth of 0.36% and 2.6% in the first and second quarters of 2016
technically plunged the national economy into recession. This contraction was
largely due to the fall in oil revenues and further exacerbated by the
vandalism of the nation’s oil assets in the Niger Delta region as well as the
country’s plummeting foreign exchange reserve from more than $60 billion in
2007 to $24 billion currently.
Major highlights of the
report is the decision of the Upper Legislative Chamber, urging President
Muhammadu Buhari not to sell the country’s national assets, and the suggestion
to raise a team of experts that would engage the youth of the Niger Delta for
amicable resolution of the crisis in the region. The report also summoned the
Chief Financial Reporting Officer of the federation to brief the Chamber.
Similarly, five Motions
were also debated and passed by the Senate, they include:
1) Inconclusive Elections,
sponsored by the Deputy Senate President, Ike Ekweremadu (Enugu West) and the
Senate Leader, Muhammed Ali Ndume (Borno South). The Motion sailed through with
three prayers below:
A) Call on the President
of the Federal Republic of Nigeria to immediately nominate suitably qualified
persons to fill the vacant positions at INEC in line with the constitution to
enhance the capacity of the Institution to conduct conclusive elections.
B) Call on INEC to
immediately conclude all pending re-run elections in the country.
C) Constitute an Ad-hoc
Committee to hold a public hearing to review the performance of the INEC
 in the last one year with a view to ascertain the factors that may have
caused the perceived decline of the electoral system.
2) Unscrupulous violation
of Foreign Exchange (Monitoring and Miscellaneous) Act, sponsored by Sen. Dino
Melaye (Kogi West). The Motion noted with serious concern the repatriation of
$13.92 billion illegally out of Nigeria by the Mobile Telecommunication Limited
(MTN) through its bankers between 2006 and 2016. The Motion scaled through with
single resolution below:
A) Mandate the Committee
on Banking, Insurance and other Financial Institutions to carry out a holistic
investigation into the matter and report back to the Senate.
3) Earth Tremor and the
preparedness of Nigeria to deal with the intending consequences, sponsored by
Sen. Danjuma La’ah (Kaduna South). The law-maker noted that the Earth tremor
that occurred in Kwoi and its environs in Jaba Local Government Area of Kaduna
State on Sunday, through Monday September 11 and 12, 2016 as well as the
increasing Earth tremors occurrence in Nigeria in recent time, there is the
likelihood of witnessing Earth Quake in the near future. The Motion was passed
with three prayers below:
A) Urge the government at
all levels to take the Earth Tremor warnings in parts of the country serious
and begin to take proactive measures to educate the populace on what to expect
and how to react when it occurs.
B) Urge the National
Emergency Management Agency (NEMA) and the Security Agencies to move in
immediately through public enlightenment and drills to prepare the people
against any eventuality as the resources required at this stage would be
minimal.
C) Mandate the Committee
on Environment and Solid Minerals to undertake tour of affected communities and
report back to the Senate.
4) The need to ascertain
the Degree of Local Content in Nigerian Oil and Gas industry, sponsored by Sen.
Gershom Bassey (Cross River South). He stated that the Senate is aware that the
National Committee on Local Content Development (NCLCD) discovered that the
local participation in the upstream sector of the oil and gas industry in
Nigeria was less than 5% meaning that 95% of the yearly expenditure of about $8
billion left the country. The Motion also sailed through with two resolutions
below:
A) Mandate the Senate
Committee on Petroleum Upstream and Gas to conduct a public hearing to
investigate the implementation of local content with a view to determine the
degree of compliance with the Nigerian Oil and Gas Industry Content Development
Act (NOGIC) by the industry operators.
B) Mandate the Senate
Committee on Petroleum Upstream and Gas to investigate the utilization of the
Nigeria Content Development Fund.
5) Looming crisis in the
Nigerian Aviation Industry, sponsored by Sen. Samuel Anyanwu (Imo East). The
Law-maker noted with concern that the looming crisis in the Aviation sector
portends grave danger to air safety and operations. He added that the sector
has been gasping for survival over some years now but worsen by the current
economic recession. The Motion was passed with two prayers below:
A) Mandate the Committee
on Aviation and the Ministry of Aviation to liaise with the Nigerian Civil
Aviation Authority (NCAA) to urgently look into the problems faced by the
airlines in order to fashion out possible solutions to the problem and avert
latent danger inherent in the crisis.
B) Mandate the Federal
Ministry of Transport to urgently commence the rehabilitation of major highways
and the rail system to serve as a viable and safe alternative to air travels.
 
Ed’s Note – This article was originally published here
Risk of Doing Business in Nigeria; Depth of Local Knowledge is Key – Prince-Alex Iwu

Risk of Doing Business in Nigeria; Depth of Local Knowledge is Key – Prince-Alex Iwu

by | Sep 14, 2016 | Uncategorized


Sometime in 2014, massive development began
in one of the choice locations in Nigeria, Falomo Ikoyi. The developers were
building a grand shopping mall in the very heart of Lagos, and they did not
seem to be sparing any expense. Shortly after May 2015, work ground to an
abrupt halt; what had happened?

Nigeria currently sits pretty as the 20th
largest economy in the world going by purchasing power parity index, at least.
It is projected by PWC to be the 9th largest economy in 2050 a few billion
dollars behind Japan and Russia in 7th & 8th respectively. Even as the
engines of growth slowdown into a recession caused largely by a cocktail of
policy and political misdirections, trade in Nigeria in the 2nd quarter of 2016
grew by as much as 49%. Nigeria is a place to do business, because there are
over 180 Million potentials for success.
Both foreign investors and local businesses
doing business in Nigeria require a depth of local knowledge about the policy,
economic and political environment. Secondly, local knowledge must be valuable
by translating into viable business relations that help businesses achieve
goals, such as dealing with trigger-happy regulators or revenue officers.
I read over the past week a post by the
founder of Hitv, explaining the sad circumstances surrounding the unfortunate
collapse of the free to air satellite tv company. Of all the issues that led to
the collapse of Hitv, none was more striking as “the delay in obtaining the
loan needed to pay for the English Premiership TV rights” which came a day
after the rights had been sold, effectively killing the company. More on this
later.
I read somewhere that China is a compliance
rainforest, so also is Nigeria. Entering into a country fills businesses with a
lot of concern about the local partner to engage. The risks of getting it wrong
can be devastating, as we found from the Unaoil scandal. But there is no way of understating the
importance of local partners who understand the terrain. Even for local
businesses, the difference between a failed business venture and a successful
one usually turns on the knowledge of the terrain. One recent case supremely
illustrates this point.
Sometime in 2014, massive development began
in one of the choice locations in Nigeria, Falomo Ikoyi. The developers were
building a grand shopping mall in the very heart of Lagos, and they did not
seem to be sparing any expense. Vibrations from the foundation work
reverberated some hundred feet away in buildings close-by and a billboard just
outside displayed a picture of the state-of the art edifice. Shortly after May
2015, work ground to an abrupt halt; what had happened? There was a new
Sherriff in town, who had different ideas. 2015 was an election year, there was
going to be a new Governor and the guys who were spending millions on the
property might have saved all the investors the loss of the huge funds sunk
into the project if they had the presence of mind to consider all the
possibilities. A sound risk assessment should have involved an analysis of the
following:
1.     political
risks of commencing such huge project a year into 2015 elections which had been
tagged as the most hotly contested in Nigeria in many decades
2.     an analysis
of the consequences of victory by each contestant
3.     the
ramifications should the opposition party win 
In other countries this might be
unnecessary; government is a continuum, therefore a change of government should
have little or no bearing on already concluded contracts, and in any case there
must be available remedies in the event of infringement of an investor’s rights
(and indeed in Nigeria there are “remedies”). But the reality is that it is not
always a simple matter in Nigeria. A robust country-entry risk assessment must
consider all the preceding possibilities to avoid getting an investor in and
leaving them stranded in the courts.
This point is also further illustrated by
another interesting instance from Lagos. During the 2015 elections, one of the
campaign promises of one of the gubernatorial aspirants was that his
administration would discontinue a 30-year concession of the Lekki-Epe
expressway to a company known as Lekki Concession Company (LCC). LCC had
been awarded a 30year concession to manage and collect toll on the road in
order to recoup the (somewhat unbelievable) N50 billion it allegedly spent on
the “expansion” (emphasis on expansion) of the 29km road. LCC is clearly a
special purpose vehicle by a band of investors who had invested in the project.
Imagine the panic and concern among shareholders of the investor companies when
they learnt of the campaign promise of a major aspirant to discontinue the
concession. A sound risk officer would have identified the threat long before
it came mainstream, and suggested ways of managing the risks to minimise the
LCC’s exposure. In the LCC case, I learnt that certain steps were taken which
satisfied the investors, although fortunately, the favourable candidate won. 
On the second point, a local partner must
go beyond reeling out country-entry requirements and post incorporation
obligations. Such a partner must be proactive. Hitv effectively went
underground because a loan came 24 hours late. Imagine a scenario where someone
in Hitv had a network of contacts that they leveraged to ensure all the bank’s
internal processes were seen to timelously? Perhaps we might have still had
Hitv around giving DStv a reason to be customer-friendly. In my experiences,
with respect to regulators, a business can be shut down with the attendant loss
of revenue because a local partner either did not know how to or whom to
engage.
As I write, a government project that has
arguably gulped billions in funds is lying abandoned in Illubirin, Lagos
because there is a new administration in power. Imagine if some banks
bankrolled such massive project? In Rivers State, the new administration has
abandoned a mono-rail project that gulped billions of state funds. Had
investors’ funds been involved what would have been their remedy?
A local partner must not just know the law
and the processes, he must know the terrain, understand how it works and where
to go to get things done. As with everything in business, great care must be
taken to select an ethical local partner to avoid a Unaoil type scandal.

Prince-Alex Iwu is an associate at Aelex Legal Practitioners & Arbitrators



Ed’s Note – This article was originally published
here.
Photo Credit – here

TyLegal – Is life imprisonment suitable for rapists?

TyLegal – Is life imprisonment suitable for rapists?

by | Aug 30, 2016 | Uncategorized


The Kaduna state government has proposed life imprisonment
for rapists, especially where minors are involved. Try as one might, it is
difficult to comprehend why a man will rape anyone at all, much less a minor.
Short of being mentally deranged, I cannot think of any excuse for such…

While the proposition of life imprisonment is very
commendable, some people are of the opinion that it is a lenient punishment.
They have instead opted for other penalties such as maiming, castration,
various forms of inhumane treatment or the definite price, the death penalty.
Though some may argue that these are extreme measures and are
not in line with the laid down laws, it can also be argued that the victims of
these rape incidents are marred for life. They suffer various levels of
self-blame, depression, anger, shame, intimidation and fear. They are exposed
to sexually transmitted diseases, unwanted pregnancies, uterine fibroid,
amongst many other negative effects and only a few are able to rise above such
horrific incidents to live a fulfilling life. Some who are sexually abused at a
young age may require treatment for the rest of their lives.
Be that as it may, we must also bear in mind that both male
and female are affected by these heinous acts. Lots of young boys and girls
these days suffer different forms of sexual abuse from older ones, especially
those they trust. This makes it difficult for them to trust reliable people who
truly care about them when they grow up.
Victims of sexual assaults are advised to do all or any of
the following:
§  Go
to a safe place, call a family member or trusted friend who can provide the
needed support.
§  Preserve
all physical evidence and report the crime to the police immediately.
§  Get
medical care as soon as possible.
§  Write
down as much as can be remembered including a description of the attacker.
§  Speak
with someone who is trained to assist sexually assaulted victims.
The healing process is usually a long one and some victims of
sexual assault tend to suffer from the effects for the rest of their lives.
Which brings us back to the question, why should the perpetrator of a sexual
assault be allowed to carry on living, even if it is behind bars? Perhaps, the
world would be a safer place without such perpetrator in it?
What do you think? 
Photo credit:LiveLeak

Ed’s Note – This article was originally published here

Femi Falana – Official corruption and immunity in Nigeria

Femi Falana – Official corruption and immunity in Nigeria

by | 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 

Are abortions legal in Nigeria?

Are abortions legal in Nigeria?

by | Mar 30, 2016 | Uncategorized


Though abortions are
illegal in Nigeria, according to the US-based Guttmacher Institute, statistics
show that at least 1. 2 million induced abortions take place in various parts
of Nigeria every year, with the highest number coming from the South-South part
of the country, followed by the North-East and South-West. Furthermore, statistics
show that 10,000 women die every year in Nigeria from unsafe abortions, carried
out by untrained people in unsanitary conditions. This can be leveled down to
27 deaths a day. Abortions are legal, only when it is done to save the life of
the woman and two physicians must certify that the pregnancy poses a threat to
the life of the woman. More than 456,000 unsafe abortions are done in Nigeria
every year; the US Guttmacher Institute estimates.
The law also frowns
strictly on abortions and provides accordingly in the Criminal Code Act, Cap C38, Laws of the Federal Republic of Nigeria,
2004. Which states in Section 228
that; 

Any person who, with intent to
procure miscarriage of a woman whether she is or is not with child, unlawfully
administers to her or causes her to take any poison or other noxious thing, or
uses any force of any kind, or uses any other means whatever, is guilty of a
felony, and is liable to imprisonment for fourteen years.
 Even women are prevented from trying to get rid of
their babies, as Section 229 further states that; 
229.    Any
woman who, with intent to procure her own miscarriage, whether she is or is not
with child, unlawfully administers to herself any poison or other noxious
thing, or uses any force of any kind, or uses any other means whatever, or
permits any such thing or means to be administered or used to her, is guilty of
a felony, and is liable to imprisonment for seven years.
 Any person who decides
to help another procure a miscarriage is also guilty of an offence as stated
below in Section 230; 
230. 
Any
person who unlawfully supplies to or procures for any person anything whatever,
knowing that it is intended to he unlawfully used to procure the miscarriage of
a woman, whether she is or is not with child, is guilty of a felony, and is
liable to imprisonment for three years.
 Such offenders however
cannot be arrested without an arrest warrant duly executed by the relevant
authorities. 
There are certain groups
clamouring that provision should be made for people in peculiar situations
other than a threat to life, such as where the woman was raped by an assailant.
The question being asked is whether such women be forced to live with the results
of the shameful act which they will always hurt to remember? This clashes with
proponents of the school of thought that life is sacred and taking it should be
resisted in all fronts, most especially via capital punishment. 
The debates will
definitely continue, however, as the law stands today, in Nigeria, abortions
are illegal, except on the condition of saving the life of the mother. 
What’s your opinion,
should abortions be made legal?
Adedunmade Onibokun, Esq.
@adedunmade
PROCUDRE FOR EXTRADITION IN NIGERIA

PROCUDRE FOR EXTRADITION IN NIGERIA

by | Jan 22, 2016 | Uncategorized

 
Credits – carliforniadefenseblog.com
 You will recall
that a number of months ago, the legal battle between the Nigerian government
and Senator Buruji Kashamu on the application by the United States to have
Senator Buruji extradited to the U.S was well reported in the news.
 The application was
possible because Nigeria is a signatory to several extradition treaties with
other countries. Examples of such countries are South Africa, Liberia, the United
States of America, the United Arab Emirates and the United Kingdom.  The enabling law that allows the country enter
into such agreements is the Extradition Act, Chapter E25, Laws of the
Federation of Nigeria (LFN) 2004. The Act also becomes applicable to any
country that enters such an agreement with Nigeria.

 The Black’s law
dictionary, 10th Edition, defines Extradition as the official
surrender of an alleged criminal by one state or country to another having
jurisdiction over the crime charged; the return of a fugitive from justice,
regardless of consent, by the authorities where the fugitive is found.
 It’s however not
every time an application for extradition is made that it is granted, for
instance the United Kingdom refused to grant an extradition application to have
James Ibori return to serve the rest of his prison sentence in Nigeria. Also,
Nigeria can deny any of such applications on certain grounds which include, if
the Attorney – General or a court is satisfied that;
 
1.    
The offence for which the fugitive is sought is of a
political nature. Section 3(1). 
2.    
The extradition application was made for the purpose
of punishing or prosecuting the fugitive on account of his race, religion,
nationality or political opinions or otherwise not made in the interest of
justice or good faith, Section 3(2);
3.    
The nature of the offence is trivial, Section 3
(3)(a);
4.    
The passage of time since the commission of the crime
Section 3(3)(b);
5.    
The fugitive criminal has been convicted or acquitted
of that offence before;
6.    
Is charged with an offence which under Nigerian law is
not an offence whereby his surrender is sought.
 Such application
for extradition by virtue of Section 6 is made by a diplomatic representative
or consular officer of that country which is applying to the Attorney-General
of Nigeria in writing also including with the application a duly authenticated
warrant of arrest or certificate of conviction issued in that country. The
Attorney – General will thus signify to a Magistrate to issue a warrant for the
arrest of the fugitive criminal.
 
AdedunmadeOnibokun, Esq.
@adedunmade
dunmadeo@yahoo.com
 
 
CAN POLICE SEARCH MY CAR?

CAN POLICE SEARCH MY CAR?

by | Jan 4, 2016 | Uncategorized

Credit – criminaldefendant.com 
I remember a time when it was regular to see police officers mounting road blocks on Nigerian roads. The police used these road blocks as a means for searching vehicles they suspected of transporting unlawful items or suspicious persons.  However, it was largely recorded that officers also used this opportunity to extort motorists, sometimes by accusing such motorists of an illegality or by outright demand for a settlement or cash gift. Incredibly, though, the Police hierarchy outlawed check points and they have gradually become a thing of the past. 

Nigerians, however, still deliberate over the right/power of the police to stop and search a vehicle or its passenger without a search warrant. For instance,

when a police officer waves you down and demands to search your vehicle without a warrant or a reasonable cause in your opinion, couldn’t it be termed a form of harassment? Truth is, the Nigerian police have a very wide range of powers in line with their mandate to provide adequate peace and security to every Nigerian and in regard to searching persons they are covered by the provisions of the Police Act, which states in Section 29 that, a police officer may detain and search any person whom he reasonably suspects of having in his possession or conveying in any manner anything which he has reason to believe to have been stolen or otherwise unlawfully obtained.


The above law empowers the police to search any person but the law does not define the elements that must exist before a policeman can be said to reasonably be suspicious of anyone, this part of interpretation is often left to the police officer. Therefore, a person with a beard can be reasonably suspected of being a terrorist or a youth with a tattoo or dreadlocks can be reasonably suspected to be a misfit or hooligan. 

This lacuna leaves room for unscrupulous officers to still take advantage of the law and extort motorists, however, the Police must always be commended for their efforts in fighting crime and keeping the streets safe and its such powers as that contained in the above Section 29 that enables them to do so. If you are ever stopped by a police officer, I recommend you pull over and do exactly what he says, he has the authority to do so and remember that not everyone who stood up to Nigerian policeman lived to tell the tale, we still have trigger happy officers in the police force. 

Adedunmade Onibokun
@adedunmade
dunmadeo@yahoo.com