Category: Law

Socio-Economic and Accountability Project (SERAP) has reviewed its activities in the last one year. ADEBISI ONANUGA reports.

Justice sector stakeholders and members of the civil societies converged in Lagos last week at a media briefing organised by the Socio Economic Rights and Accountability Project (SERAP).

The event tagged “Failed Promises: Corruption in the Water, Health and Education sectors in Nigeria“, was held at the Shoregate Hotels, Joel Ogunnaike Street, GRA, Ikeja.

70 FoI requests, 60 public interest litigations filed in 2022

Its Deputy Director Oluwadare Kolawole disclosed that in pursuit of SERAP’s legal advocacy to ensure transparency and accountability in the management of public funds, SERAP issued more than 70 freedom of information requests in 2022, filed more than 60 public interest lawsuits against the Federal Government, the National Assembly and state governments, out of which 22 were filed in 2022 – majorly calling on government to be accountable to the people, by living up to government’s statutory responsibilities.  

Oluwadare noted that progress on some of these public interest cases has understandably been slow due largely to the challenges confronting our justice system. He expressed hope that Justice would prevail.

 SERAP, according to him, obtained several ground-breaking judgments which he said the Federal Government persistently failed and or refused to implement. 

 “The failure and/or refusal to enforce and implement legally-binding judgments of court is entirely inconsistent and incompatible with Nigeria’s international human rights obligations. 

 “The persistent and deliberate disobedience of judges’ decisions would, ultimately, encourage impunity and corruption”, he said.  

Rule of law, judicial integrity undermined

Oluwadare said government’s disdain for the rule of law is illustrated by the tendency to pick and choose which court orders it complies with. He said this selective application of the rule of law invariably undermines the independence and integrity of the judiciary, and is counter-productive to the government’s own fight against corruption. 

Concern over rising poverty rate, socio economic inequality

He said SERAP is seriously concerned about the rising rate of poverty and socioeconomic inequality. According to him, a recent report by the National Bureau of Statistics (NBS) contained damning revelations that some 133 million Nigerians are poor, despite the government reportedly spending N500 billion yearly on social investment programmes.

He said the rising poverty rate is an obvious result of many years of corruption and mismanagement of the country’s commonwealth and neglect of the socioeconomic rights of the people noting that corruption, the bane of Nigeria’s development, is flourishing with impunity and appears to be winning.

Worry over rising out-of-school-children

In spite of the growing deficit in national budget and increasing national debt profile, access to basic public goods and services such as quality education, affordable healthcare and regular and uninterrupted water supply has become almost non-existent due primarily to systemic and widespread corruption in these sectors.   

He said allegations of corruption in public institutions like the Universal Basic Education Commission (UBEC) and State Universal Basic Education Boards (SUBEBs) continue to undermine public confidence in the education sector, leading to erosion of access to education.

He advised that if this is not urgently addressed,  it would lead to an increase in out-of-school children, and exacerbate educational inequalities in the country.

 Fight against corruption

Oluwadare stressed that government’s promise to fight corruption and end impunity imposes a moral and legal responsibility to protect the rule of law, ensure sustainable development and full respect for Nigerians’ constitutionally and internationally guaranteed human rights, as well as to obey court judgments.

He said the promises also impose a responsibility to ensure transparency and accountability at all levels of government, and mean that government and public officials should timely and consistently respond to Freedom of Information requests from Nigerians.

 In his view, investigating allegations of corruption and mismanagement of Nigeria’s resources, prosecuting suspected perpetrators and recovering any missing public funds would contribute to addressing the systemic and widespread corruption, which has disproportionately affected the most vulnerable and marginalized, and entrenched inequality.

How not to apply prerogative of mercy

The SERAP deputy director regretted what he described as lack of progress in the fight against grand corruption and the promise to obey the rule of law is further buttressed by the fact that many high-ranking officials suspected of corruption rarely end up in jail, as suspects continue to exploit the flaws in the justice system to the point where individuals are profiting from their crimes. 

 He expressed regret that the National Council of State endorsed the pardon of former Plateau State Governor, Joshua Dariye, and his Taraba state counterpart, Jolly  Nyame and 157 others serving jail terms following the recommendations of the Presidential Advisory Committee on the Prerogative of Mercy. 

He said SERAP challenged President Buhari’s exercise of prerogative of mercy in favor of the two convicted politicians. “We are concerned that impunity for corruption will continue as long as influential politicians escape justice for their crimes. The constitutional power of prerogative of mercy ought not to be an instrument of impunity”, he stressed.

Law suits against government

Oluwadare used the platform to list some of the suits filed against government. He said the organization filed the suit because of government’s failure to fulfill its promises to Nigerians.

According to him, the President Muhammadu Buhari on May 29, 2015  stated that “insecurity, pervasive corruption, the hitherto unending and seemingly impossible fuel and power shortages are the immediate concerns. He then made a clear promise that his government would “tackle these challenges head on’.

He also promised to “ensure that there is responsible and accountable governance at all levels of government in the country. The Federal Government would not fold its arms and close its eyes to what is going on in the states and local governments.” 

He said again in 2019, President Buhari promised that his government would “intensify efforts in improving security, the Economy and Fighting Corruption.” 

Unfortunately, President Buhari’s government has made little to no progress in fulfilling the promises made to Nigerians to fight grand corruption, end impunity.

He said SERAP  filed a lawsuit against the President  over “the failure to thoroughly, effectively and transparently investigate spending on all social safety-nets and poverty alleviation programs and projects executed between 2015 and 2022.” The Federal Government reportedly spending N500 billion yearly on ‘social investment programs.  

In the suit, he said SERAP asked the court to “direct and compel President Buhari to thoroughly and transparently investigate the spending on all social safety-nets and poverty alleviation programs and projects executed between 2015 and 2022.” 

He said SERAP also filed a lawsuit against the National Assembly over their failure to probe, and to refer to appropriate anti-corruption agencies fresh allegations that N4.1bn of public money budgeted for the National Assembly is missing, misappropriated or stolen as documented in the 2016 audited report by the Auditor-General of the Federation. 

In a recent development, he said the organization also urged the leadership of the National Assembly to “promptly cut the outrageous National Assembly budget of N228.1bn, including the N30.17bn severance payments and inauguration costs for members (the highest ever).”

 He said SERAP is asking the National Assembly to “propose a refresh budget for the National Assembly that would reflect the current economic realities in the country, address the debt crisis, and prevent retrogressive economic measures.”  

He lamented that the National Assembly had increased its 2023 budget from N169bn proposed by President  Buhari to N228.1bn. The approved budget shows an increase of about N59.1bn. The country’s budget of N21.83tn is based on a N10.49tn revenue, and N11.34tn deficit.

SERAP also sued the eight governors of the oil producing states in Nigeria over “their failure to account for the spending of the oil derivation refunds of N625bn recently paid to them by the Federal Government, including details and locations of projects executed with the money.”

  According to him, the Federal Government recently disclosed that it paid N625.43 billion oil derivation refunds to the governors of Abia, Akwa Ibom, Bayelsa, Delta, Edo, Rivers, Ondo, Imo and Cross River states. The payments covered 13 percent oil derivation, subsidy, and SURE-P refunds. The refunds date from 1999 to 2021.

Call for investigation of corruption in the water, health, education sectors

He  urged President Buhari to without further delay direct the Attorney General of the Federation and Minister of Justice and appropriate anti-corruption agencies, to thoroughly, transparently and effectively investigate the cases of corruption in the water, health and education sector as well documented in the 2018 and 2019 Auditor General’s reports. 

 He said: “unless the president makes good on his promises and constitutional oath of office, SERAP will consider exploring appropriate legal action to compel the Federal Government to act as recommended.

Politicians deploy various tricks, particularly frivolous pre- and post-election litigations, to stop their opponents. Stakeholders believe the numerous cases ahead of next month’s polls may threaten democracy and the judicial system. ERIC IKHILAE examines the issue.

The idea of a pre-election litigation process was intended to help strengthen the electoral process by ensuring that, with the intervention of the court, misgivings about the emergence of a candidate or his/her suitability for the position sought are addressed before the main election.

However, the objective(s) for which the process was evolved seems to be currently threatened by an avalanche of pre-election cases that flooded the courts shortly after the last primary election season.

Unlike before when pre-election cases could be filed in any High Court where the issues being complained about occurred, the Electoral (Amendment) Act 2022, in sections 29 (5) and 84(14), now grants the Federal High Court the exclusive jurisdiction in the hearing and determination of pre-election cases.

According to the Chief Judge of the Federal High Court, a total of 1,838 pre-election cases were filed in the court as of December last year, out of which 1,285 cases were disposed of, leaving a total of 556 cases pending.

While the Federal High Court has continued to dispose of such cases, the appellate courts are confronted with the task of dealing with the appeals emanating from these cases.

Incidentally, these cases range from the serious, where genuine grievances are taken before the court, to the highly ridiculous, where busy bodies, mostly lawyers, who hide behind opaque groups to file cases, directed at either distracting perceived popular candidates or take advantage of the situation.

Some pre-election cases

One of such worthy cases was the one determined on January 20 by the Supreme Court to determine the actual candidate of the All Progressives Congress (APC) for the Akwa-Ibom North-West Senatorial District.

In the judgment rendered by a five-member panel, headed by Justice Kudirat Kekere-Ekun, the court held in favour of the former governor of the state, Godswill Akpabio.

Cases that have been described by courts as frivolous and unmeritorious, formed the majority of pre-election matters in courts.

At the last count, over 15 cases were filed against the presidential candidate of the APC, Asiwaju Bola Tinubu alone, with the sole objective of having him disqualified.

The candidates of the Peoples Democratic Party (PDP), Atiku Abubakar; Peter Obi of the Labour Party (LP), Rabiu Kwakwanso of the New Nigeria Peoples Party (NNPP), among others, have cases filed against them, seeking their disqualification for one reason or the other.

One of such frivolous cases against Tinubu was filed by the PDP to challenge the validity of the Tinubu/Shettima ticket for the 2023 presidential election.

The PDP had argued, in the suit marked: FHC/ABJ/CS/1734/2022 that Shettima’s nomination as Tinubu’s running mate was in breach of the provisions of Sections 29(1), 33, 35 and 84{1)}(2)} of the Electoral Act, 2022 (as amended).

It claimed that Shettima had double nominations – as a vice-presidential candidate and as the candidate for the Borno Central Senatorial seat.

 The PDP, which sought an order disqualifying the APC, Tinubu and Shettima from contesting the next presidential election, equally prayed the court for, among others, an order nullifying their candidacy.

In a judgment on January 13, Justice Inyang Ekwo of the Federal High Court, Abuja dismissed the suit on the grounds that the PDP lacked locus standi to have instituted it.

Justice Ekwo held that the subject matter of the suit bordered on the internal affairs of the APC.

The judge added: “It is express, in the provision of Section 29 (5) of the Electoral Act, 2022, that the right of action on the matter for which the applicant/respondent (PDP) has filed this action is given to any aspirant who participated in the primaries of his political party.”

The judge added that since it was established that the PDP was not an aspirant of the APC, “there is no iota of law which support this action. It is on this ground that I find that this case is an abuse of process and I so hold.”

In another judgment on December 15, 2022 Justice Ekwo dismissed the suit marked: FHC/ABJ/CS/942/2022 filed by a former Minister of State for Education, Chukwuemeka Nwajiuba and a group, Rights for All International (RAI) seeking to void the nomination of Tinubu and Atiku Abubakar as presidential candidates of the APC and the PDP.

Nwajiuba and RAI had claimed that both parties’ primaries were marred by corrupt practices and prayed the court to replace Tinubu with the ex-Minister, who said he participated in APC’s primary and scored one vote.

Justice Ekwo condemned the involvement of RAI, which claimed to be a non-governmental organisation, in politically-motivated cases.

The judge held that by its involvement in politically-motivated cases and by extension, partisan politics, RAI went outside the objectives for which it was registered under Part F of the Companies and Allied Matters Act (CAMA) by the Corporate Affairs Commission (CAC)) and taking steps inimical to public policy.

He added: “It is only in this country that an association registered for charitable purpose will venture into partisan politics with such audacious sense of impunity.

“At this time in the political journey of this country, politics and political activities must be left to those who are authorised by law to do so.

“This action by the first plaintiff (RAI) is an outrageous act and an aberration to all known principles of the law of associations. In short, it is the height of lawlessness and ought to be stopped forthwith.

“Associations registered under Part F of the CAMA 2020 must understand the limit of their operations under the law. Where they fail to do so, the legal sanctions will apply,” the judge said.

Justice Ekwo proceeded to dissolve RAI and ordered the CAC to take over the dissolved group and deal with it in accordance with the provisions of the law on dissolution of bodies registered pursuant to Part F of the CAMA 2022.

Yet, in another judgment delivered on December 23 last year, Justice Zainab Abubakar (also of the Federal High Court, Abuja) dismissed a suit marked: FHC/ABJ/CS/1114/2022 filed against Tinubu by Nwajiuba for being statute-barred.

Justice Abubakar noted that as a pre-election case, it ought to be filed within 14 days of the occurrence of the action complained about by the plaintiff.

She observed that Tinubu purchased the expression of interest and nomination forms on April 29, he emerged as APC candidate at its congress held between June 6 and 7, and INEC published his name on June 17.

The judge held that the suit filed on July 8, which was later amended on December 8 to include Tinubu’s name, could not be said to have been filed within 14 of the occurrence of the events that took place on April 29, June 6, 7 and 17 in relation to Tinubu’s nomination.

The judge said: “I have no hesitation in holding that this suit, as constituted against all the defendants, is statute-barred by virtue of the provision of Section 285(9) of the Constitution, which means the right of the plaintiff to institute this action has been extinguished by the operation of the law.

“This invariably robbed this court of the jurisdiction to entertain this suit,” the judge held and proceeded to dismiss the suit.

Nwajiuba had sued pursuant to Section 90(3) of the Electoral Act 2022, claiming that Tinubu did not identify the source of the N100 million he used to purchase the expression of interest and nomination forms.

He also alleged that Tinubu submitted false information to INEC.

In October last year, a Federal High Court in Abuja presided over by Justice Taiwo Taiwo (now retired) dismissed a suit marked:FHC/ABJ/CS/751/2022 filed by a lawyer, Johnmary Jideobi, who sought to disqualify Atiku on the grounds that he was allegedly not a Nigerian by birth.

Jideobi had argued that allowing Atiku to be a participant in the 2023 presidential election as the candidate of the second defendant would amount to a grave desecration of the otherwise sacrosanct and inviolable provisions of Sections 1(1) & (2), 25 and 131(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

In dismissing the suit, Taiwo held among others, that the plaintiff was without the requisite locus standi.

Why proliferation of pre-election cases?

The reason for the growing increase in the number of pre-election cases could partly be attributable to the highly litigious nature of Nigerians, as recently noted by the Chief Justice of Nigeria (CJN), Justice Olukayode Ariwoola.

Justice Ariwoola said, as Nigerians, “in every little disagreement, we rush to court and in every lost case, we rush to appeal even up to the Supreme Court, no matter how little the issue might be.

“That has obviously accounted for the several appeals pending in Supreme Court.

“Though we receive scathing criticisms from members of the public over our over-blotted docket, we are neither in any position to regulate case inflow to the court nor have the supernatural powers to attend to all in one-fell-swoop.”

Another reason, according to law experts, is the unwillingness of politicians to play by the rules and the lure of political offices.

Justice Emmanuel Agim emphasised the need for politicians to learn to play by the rules while delivering  judgments in two appeals.

The judgments were on the appeals marked: SC/CV/1440/2022 and SC/CV/1441/2022  filed by Jerry Alagboso and Nnamdi Thankgod Ezeani in respect of the senatorial primaries in Imo State.

Justice Agim faulted the decision of the party to hold its primary in Owerri as against Orlu, an action he said violated the Electoral Act and the PDP constitution.

He equally faulted the contention by the party that the decision to hold the primary in Owerri was agreed to by a majority of its members, who expressed concern about security.

The judge held that it was unlawful for majority of the members of the party to agree to violate the provision of a statute.

He added: “You cannot agree to violate or act against the provision of statute. That is against the principle of the rule of law. You must always learn to play by the rules. Laws are meant to be obeyed.”

Abuja-based lawyer Daniel Makolo argued that desperation on the part of politicians to get to public office by all means, accounts for why, even when they know that their chances of success are very slim, they will still instruct lawyers to file cases on their behalf in court.

This development, he noted, accounts for why many of such cases are in court.

Effect of proliferation of pre-election cases on the courts, electoral process

According to Justice Tsoho, the increasing number of pre-election cases and the decision to grant exclusive jurisdiction over such cases to his court have further compounded the court’s problems.

“By virtue of sections 29 (5) and 84(14) of the Act (Electoral Act 2022), exclusive jurisdiction is foisted on the Federal High Court in the hearing and determination of pre-election complaints.

“Linked to that jurisdiction is Section 285(10) of the Constitution (as amended), which provides that such pre-election cases must be concluded within 180 days from the date of filing of the suit.

“This is notwithstanding the judges’ existing ‘high-volume’ dockets that present enormous challenges.”

Justice Inyang Okoro stressed the negative impact of the proliferation of pre-election cases on the court when, on January 19, he noted that large volume of such cases were subjecting the judicial officers to excess work.

Justice Okoro, who noted that the court could no longer attend to other civil and criminal cases, said his panel, at a special court sitting handled 20 cases the previous day and dealt with about 19 the next day.

The Chairman of the Independent National Electoral Commission (INEC), Prof. Mahmood Yakubu, said the high volume of pre-election cases were a distraction to his commission.

Yakubu lamented the negative impact of endless litigation on his commission ‘s capacity to plan its activities.

He said: “Cases arising from the conduct of primaries for the nomination of candidates by political parties are on the increase.

“So far, we have been joined in about 600 cases relating to the conduct of recent primaries and nomination of candidates by political parties for the 2023 General Election.

“Only two weeks ago, one political party served about 70 court processes on the Commission in one day seeking to compel us to accept the nomination or substitution of its candidates long after the deadline provided in the Timetable and Schedule of Activities for the 2023 General Election had elapsed.

“Some of the cases will go up to the Supreme Court. The implication is that we are still dealing with issues of nomination of candidates thereby eating into vital time for preparation of and procurement of sensitive materials for the election.

“It also means that the courts will be dealing with the same issues long after the general election.”

How to prevent abuse of pre-election litigation process

Perhaps, the best option to addressing the threat posed by the abuse of the pre-election litigation process is to heed the advice by Justice Ariwoola, who asked that Nigerians should learn not to always approach the court at every disagreement.

Also, as noted by Justice Agim, politicians’ and political party leaders should learn to play by the rules.

Less members would be aggrieved where nomination processes are done transparently and in accordance with existing rules and procures.

Lawyers, as noted by Justice Ibrahim Saulawa (while delivering the judgment that affirmed Akpabio’s nomination), have a major role to play in safeguarding the nation’s democracy.

Justice Saulawa urged legal practitioners to always insist on the rule of law and advise their clients appropriately on the need to respect the law in their conduct.

Makolo noted that where political parties take time to properly screen their candidates and conduct transparent nomination process, there will be less pre-election cases in court.

He also suggested the practice of using costs, by the court, to discourage lawyers and their clients from filing frivolous pre-election cases.

“When heavy costs are imposed on both the lawyers and their clients for filing frivolous cases, they will think twice before the court when they have no serious case with the possibility of succeeding,” he said.

The National Assembly was on Sunday urged to consider amending the 1999 Constitution to allow independent candidates contest future elections in Nigeria’s electoral process.

NBA president, Yakubu Mikyau (SAN), made the plea at the 19th Annual Gani Fawehinmi lecture put together by the Ikeja branch of the NBA, which was held at the Airport Hotel, Ikeja.

Mikyau also urged lawyers to ensure that the forthcoming general elections holding in February, are free, fair, and credible. He asked lawyers to work towards improving Nigeria’s democratic process.

The NBA president expressed worries that a candidate cannot contest an election without being a member of a political party.

Mikyau expressed the determination of the NBA to give what he termed a national colouration to the Annual Gani Fawehinmi Lecture.

He said: “We are taking over the event by fully bearing the cost of putting the same together. Gani Fawehinmi was a fearless advocate and stood as the conscience of the masses.

“Freedom is one of Fawehinmi’s legacies that he left behind. He lived and worked for democracy, and we should ensure that his legacies are not pushed aside.”

The former chairperson of the Electoral Commission of Ghana, Mrs. Charlotte Kesson-Smith Osei, who delivered the lecture, entitled, ‘A Free, Fair And Credible Election: An Indispensable Tool For National Development’, answered in the affirmative that free, fair and credible election, remains an indispensable tool for national development.

Declaring that Nigeria has got some success in conducting elections regularly, Osei berated a situation where Nigerians are daily being confronted with cases of abduction, which she said, could hamper a smooth electoral process.

She advised the President Muhammadu Buhari-led Federal Government of Nigeria (FGN) to tackle the issue of insecurity to foster confidence in the citizenry.

Osei said: “When elections are not free, it can result in the stagnation of the development of the country.

“Every Nigerian wants access to shelter, good roads, health care system, electricity, and other social amenities.

“The citizens should demand accountability from their leaders. Democracy dies both in darkness and silence.”

Osei urged Nigerians to ensure that they are registered voters,  maintaining that Nigerians would not be able to hold their leaders accountable if they fail to participate in the process.

“Lawyers should endeavour to make the sacrifices Gani Fawehinmi made to make Nigeria and its electoral process better.

“The NBA should engage the Independent National Electoral Commission and other relevant institutions to find out their level of preparedness.

“Development will never come until you demand it. You should not allow the political elite to capture our political system. The political system belongs to the people.

“The best way to prevent election rigging in Nigeria is by massive turnout. Political apathy should be of great concern to the NBA. Democracy should not be left to civil society and foreign donours alone. The Bar must be light and must at all times be at the forefront of engaging the judiciary toward ensuring a smooth electoral process in Nigeria.”

In his welcome address, Oluwaseyi Olawunmi, the Ikeja branch chairman, said the branch conceived the annual lecture to celebrate the ideals of the late Fawehinmi.

“Fawehinmi spoke truth to power, he championed the cause of the masses, stood for beggers and the less privileged members of the society,” he stressed.

The former Vice-Chancellor of the University of Ado-Ekiti, and chairman of the occasion, Prof. Akin Oyebode, described the late Fawehinmi as a unique individual, who fought against bad governance.

He said: “Gani had an indomitable spirit that you cannot overrun. Gani succeeded in democratising the legal profession. He made indelible marks in the practice of the legal profession in Nigeria.”

He described, as wicked and oppressive, the incivility of the Nigerian security operatives against the late Fawehinmi.

Lagos State Governor, Babajide Sanwo-Olu, who was represented by the state’s Attorney-General and Commissioner for Justice, Moyosore Onigbanjo (SAN), declared that Fawehinmi stood for democracy and led the battle against military rule.

Onigbanjo said: “He fought against bad governance and never compromised his stand. He fought for freedom until he died.”

Lagos Chief Judge (CJ), Justice Kazeem Alogba, who was represented by the Chief Registrar (CR) of the High Court of Lagos State, Tajudeen Elias, described  Fawehinmi as a dogged fighter for human rights with a further position that the late legal icon was committed to the development of law.

The CJ enjoined legal practitioners to emulate Fawehinmi’s legacies. Alogba said as elections draw closer, the judiciary will remain committed to the conduct of a free, fair, and credible election in the country.

The National Industrial Court of Nigeria (NICN) has, in a landmark judgment, struck down the controversial Police Regulation 127, which stipulated dismissal of unmarried policewomen who get pregnant. Lawyers tell ADEBISI ONANUGA that the ball is now in the Police’s court to comply with the judgment and uphold its female personnel’s rights.

The National Industrial Court of Nigeria (NICN) in Akure last Wednesday outlawed Regulation 127 of the Nigeria Police Regulation made pursuant to the Police Establishment Act 2020 that authorised the sack of an unmarried policewoman who gets pregnant.

The court’s decision followed a suit by Mrs. Funmi Falana, for Women Empowerment and Legal (WELA), representing a dismissed Police Constable, Miss Omolola Olajide.

Olajide’s sack

Olajide of the Ekiti Police Command was dismissed on January 26, 2021 by the then Inspector-General of Police (IGP) Mohammed Adamu for getting pregnant while being single.

The Divisional Police Officer in Iye Ekiti, where she was posted, received the signal for her dismissal from the Department of Finance and Administration in Ado Ekiti.

To guarantee that her salary was halted, the chief financial officer in Ekiti was asked to convey the information to the Integrated Personnel and Payroll Information System (IPPIS).

The document reads: “Section 127 of the Police Act and Regulation against women police getting pregnant before marriage; W/PC (woman corporal) Olajide Omolola passed out of Police Training School on April 24, 2020, attached to yours, contravened above provisions.

“She stands dismissed from the Force. De-kit her. Retrieve police documents in her possession with immediate effect. O/C CFO Ekiti only. You are to relay a signal to IPPIS Abuja for the stoppage of her salary with immediate EFFECT. DECOMPOLS (Deputy Commissioners of Police)/ACPOLS (Assistant Commissioners of Police)/HODs/DPOs Ekiti State only. You are to lecture women police. Treat as very urgent.”

The Commissioner of Police in Ekiti, Mr. Babatunde Mobayo, also explained Olajide’s sack, saying the officer contravened section 127 of the police regulations.

Speaking with journalists in Ado Ekiti soon after the sack, Mobayo said: “In police organisation, we have rules and regulations, which are being carried out within the ambit of the constitution. Police officers are not even allowed to keep their children that are above 18 years of age in the barracks. Some of these laws were taught in the police colleges before we graduated.

“These laws have been there. Some stipulated the number of years you must spend before you get married. If you are in Police College, you are not supposed to get pregnant. When you pass out, you still need basic training and for your attention not to be distracted, you must spend a certain minimum period before you get married for you to perform efficiently.

“The lady in question passed out in May 2020, which is eight months ago and now she is six months pregnant. The Police Act 2020, which is undergoing amendment in the Senate, has not repealed that. She has contravened Section 127 of the police regulation.

“Section 126 of the regulation states that a married woman police who is pregnant may be granted maternity leave, while Section 127 says an unmarried woman police who becomes pregnant shall be discharged from the Force and shall not be enlisted except with the approval of the Inspector General of Police (IGP).”

The CP also noted that the regulation has a practical value for police effectiveness.

“About 300 policewomen graduated here last year (2020). How would the public feel if they see all of them pregnant in less than a year? It will look ridiculous.

“We are not the drafters of the rules, we met them there. All these disciplinary actions are what made us able to control our men. No Police constable is underage, they should know what to do not to get pregnant within the time prohibited by regulation,” Mobayo added.

But Olajide challenged her dismissal on the ground that the police authorities discriminated against her since her male counterparts are not dismissed in similar circumstance.

Ekiti State Attorney-General and Commissioner for Justice, Olawale Fapohunda, also challenged the sack at the Federal High Court in Ekiti seeking an order nullifying the section.

The court had dismissed the suit on the ground that it was an abuse of court process since a similar suit filed by Olajide was pending before the National Industrial Court.

Claimant’s prayers

Olajide, through her lawyers Mrs. Falana and Abiodun Ajisola, sought five reliefs from the court:

• A Declaration that the claimant’s purported dismissal from the employment of the 1st and 3rd defendants via a signal dated 20th January 2021 is null, void and unconstitutional as it violates Section 42 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Article 2 of the African Charter on Human and People’s Rights.

• A Declaration that the provisions of Regulation 127 of the Police Act which is against women police getting pregnant before marriage but does not apply to men police impregnating women before marriage is discriminatory, illegal and unconstitutional as it violates the Claimant’s Right under Section 42 of the 1999 Constitution (as amended) and Article 2 of the African Charter on Human and People’s Rights and the said provision should be annulled.

• A declaration that the Claimant is still in the employment of the 1st and 3rd Defendants.

• An Order directing the Defendant to reinstate the claimant to her status as Constable without prejudice to her entitlement and promotions which may have accrued to her during the period of her purported dismissal and

• An Injunction restraining the defendants from further interfering with the Claimant’s rights, privileges and performance of her duties as a constable with the defendant. 

The claimant in her final written address of March 23, 2022, argued that the entire process leading to the disengagement of the claimant violated the natural justice hence the whole process was to be declared a nullity and set aside. She also contended that although the defendants claimed to have conducted a medical examination on her to serve as a basis of her dismissal, the said medical examination was done after the signal of her dismissal had already be sent.

Defence’s prayers

The defence led by Tolu S. Abisagbo, countered the claimant, arguing that she was a probationary employee, her employer found her conducts unsatisfactory and lacking the capacity to be a full-fledged Police officer.

He asked the court to determine whether Olajide, being an employee on probation who had not been confirmed, could complain of wrongful dismissal.

He also sought determination of whether Olajide being aware of regulation 127 of Police Rules and Regulations and having voluntarily subscribed to same by enlisting in the Police could validly violate same without suffering the requisite sanction.

Finally, he queried whether Regulation 127 of the Police Rules and Regulations is discriminatory or unconstitutional.

Abisagbo also submitted that “Rule 020301 of the Public Service Rules in Nigeria provide to the effect that a person may be employed into any public service in Nigeria on probation. It provides that such officer on probation will be required to serve for two years before being confirmed in the service. That an employee on probation can be booted out at any time by the employer for lack of capacity or unsatisfactory performance without following any elaborate rules as applicable to employee on permanent appointment.

Regulation 127 violates constitution, court rules

But Justice D. K. Damulak in a January 11, 2023 judgment held that the police regulation which permits the dismissal of unmarried pregnant police women “is discriminatory, illegal, null and void as it violates section 42 of the Constitution and article 2 of the African Charter on Human and Peoples Rights Ratification and Enforcement Act which abolished discrimination on basis of gender.”

The court held that the police regulation cannot stand as it is not applicable to unmarried police men who impregnate women and consequently set it aside.

 “The Court accordingly, finds and holds that the provision of Section 127 of the Police Act and Regulation 127 thereof, which applies to unmarried women police officers getting pregnant while in service but does not apply to unmarried male police officers impregnating females while they are in service, are discriminatory against unmarried women police offices by Section 1(3) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, If any law is inconsistent with the provision of this Constitution, this Constitution shall prevail, and that other law shall to the extent of its inconsistency be void”, Justice Damulak held.

He added: “For the avoidance of doubt, the case of the claimant succeeds in part only in terms of prayer B which is a declaration that the provisions of Regulation 127 and section 127 of the Police Act which is against women police officers getting pregnant before marriage but does not apply to male police officers impregnating women before marriage is discriminatory, illegal and unconstitutional as it violates the Claimant’s Fundamental Right under Section 42 of the 1999 Constitution (as amended) and Article 2 of the African Charter on Human and Peoples’ Rights and the said provision is hereby declared null and void and struck down.”

Justice Damulak awarded aggravated damages of N5 million for the violation of Miss Olajide’s fundamental right to freedom from discrimination. However, her prayer for reinstatement was refused to order her reinstatement as a police officer was refused by the Court as the Judge upheld the submission of the police counsel, Mr. P.S Abisagbo to the effect that she could not be reinstated as she was on probation at the time of her dismissal was from the Nigeria Police Force.

In arriving at this decision, Justice Damulak relied on many judicial authorities, particularly the case of Women Enlightenment and Legal Aid v Attorney-General of the Federation where the Federal High Court struck down the police regulation that placed a three-year ban on female recruits from contracting any form of marriage. The case was also handled by Mrs. Falana.

Police’s power to approve policewomen’s spouse

Prior to the January 11, 2023 judgment of the NICN, Justice Stephen Adah of a Federal High Court sitting in Ikeja had in May, 2012, also declared as illegal and unconstitutional the provision of the Police Act and Regulation 124 that prohibits a woman police officer from marrying a man of her choice without the permission of the State Commissioner of Police where the woman is serving.

What Regulation 124 stipulates

Regulation 124 made pursuant to the Police Act (Cap P19) Laws of the Federation of Nigeria states that: “A woman police officer who is desirous of marrying must first apply in writing to the Commissioner of Police for the State Command in which she is serving, requesting permission to marry and giving name, address and occupation of the person she intends to marry.Permission will be granted for the marriage if the intended husband is of good character and the woman police officer has served in the force for a period of not less than three years.”

Police Regulation 124 illegal – Mrs Falana

Mrs. Falana challenged the constitutional validity of the law in court. She argued that it was illegal to ban a woman police officer for three years before entering into a marriage and that seeking permission of a Police Commissioner before wedding a man of her choice and in love with, was an infraction of her fundamental right to dignity and freedom of choice.

She contended that since a male police officer was not subjected to the same inhibitions, Regulation 124 was inconsistent with section 42 of the Constitution and Article 2 of the African Charter on Human and Peoples’ Rights which prohibit discrimination on the basis of sex.

She had then urged the court to expunge the Regulation from the Police Act on grounds that it was not reasonably justifiable in a democratic state like Nigeria which has domesticated the African Charter on Human and Peoples Rights and ratified the Protocol to the African Charter on Human and People Rights on the Rights of Women in Africa and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

Why police defended Regulation 124

But the then Attorney-General of the Federation (AGF) through his counsel, B.R. Ashiru backed the regulation. He maintained that it was designed to protect women police officers from falling into the hands of criminals and prevent them from marrying men of bad character.

He also defended the three-year ban on the ground that it was meant to ensure that a woman police officer was not pregnant “during the rigorous training she must undergo after her employment”.

Court voids Regulation 124

Justice Adah rejected the Police’s arguments, holding that Regulation 124 was illegal, null and void due to its inconsistency with Section 42 of the Constitution.

The judge consequently declared the Regulation unconstitutional and annulled it pursuant to Section 1(3) of the Constitution.

Legal pundits said the implication of the judgment was that Police women no longer needed the Commissioner’s permission to marry.

Police Act/Regulation

Some researchers have traced the problematic portions of the Regulation to the country’s colonial past.

The British merged Lagos Colony with the Southern and Northern Protectorates in 1914 and named the new colony Nigeria. The Northern and Southern Regional Police Forces were later merged in 1930 to form the colony’s first National Police. Given this background, the researchers noted that the Nigeria Police Act and Regulations have their roots in that era of British rule.

Although, the Police Act and Regulation have gone through different reviews between 2004 and 2020, stakeholders doubt that the reviews are in compliance with, for instance, Justice Adah’s order or similar judgments voiding different sections of the Police Act and Regulations.

If this is considered, what then is the implication of the order Justice Damlak of the NICN issued last Wednesday.

Does judgment conflict with an existing High Court decision?

There seems to be some controversy as to whether the judgemnt conflicts with another judgment of the Federal High Court in Abuja, which declined to invalidate Regulation 127.

The judgment was made by Justice Inyang Ekwo on February 21, 2021.

The Nigerian Bar Association (NBA) had approached the court to query the legality of Regulation 127 which it argued was in conflict with the 1999 Constitution.

But the Attorney-General of the Federation (AGF), Abubakar Malami, SAN, in a counter-affidavit filed before the court, sought to dismiss the suit.

The AGF contended that the Regulation was in order as it was made pursuant to an extant law. He asked the Plaintiffs to approach the National Assembly for an amendment if it was not comfortable with the provision.

“Fundamental human rights, as guaranteed under the 1999 Constitution of the Federal Republic of Nigeria (as amended), are not absolute”, the AGF stated.

 Justice Inyang Ekwo upheld his submissions and held that the suit lacked merit, stressing that such unmarried female police officers were aware of the Regulation before they joined the force.

“Where a law or regulation of an establishment identifies gender attributes or faults and seeks to regulate the vulnerabilities capable of negatively affecting the progress of such gender, such law or regulation is a warning aforehand and cannot be said to be discriminatory.

“It is my finding that in all that the Plaintiff has posited, it has not pointed to any aspect of the regulation complained of, which violates the interest of public order or public morality, which will make it reasonably justifiable to invalidate Regulation 127 of the NPFR and I so hold”, the court held.

But Mrs. Falana disagreed that there was a conflict of interest. She explained that the NBA’s suit was a public interest litigation.

“But in our case, the action was filed by the lady through her lawyers and she was the claimant. So the issue of locus standi does not arise because in  our case, the lady herself was the claimant,” She said.

The activist lawyer explained that in the other case in Abuja, they had an organisation that was not directly affected.

“The peson that was affected approached the court. So, we had standi before the court and there was no conflict between the issues raised in the two cases”, she added.

Policewomen react

A female Police Inspector, who spoke on condition of anonymity, hailed the NICN judgment but doubted that the police would implement it.

She said: “Nah so so judgment we dey hear, but which oga go do am?”

Another said: “We are happy with the judgment, but which oga would stand by us. Me, I don’t want to lose my job now.”

Sound judgment, say lawyers

Lawyers described the judgment of the NICN as sound and declaratory. Those who spoke included Head, Department of Jurisprudence and International Law, University of Ibadan (UI) Prof. Oluwole Akintayo and the Convener, Access to Justice (A2J), Joseph Otteh.

Constitution, human rights instruments prohibit discrimination

Prof Akintayo praised the NICN judgment noting that “(section 42) of the Constitution and other human rights instruments prohibit discrimination on many grounds including sex which is relevant here.”

The don noted further that law must take judicial notice of some facts of life.

“For instance, some jurisdictions now allow male employees to go on paternity leave but the case for female employees who are pregnant or have delivered babies is stronger than that of male employees who want to take care of their children and spouses.

“From a medical perspective, a female needs maternity leave more than a man needs paternity leave. A court of law must take judicial notice of some facts of life and cannot shut its eyes to biological or physiological differences between male and female”, he argued.

Regulation 127 a moral rule?

Prof Akintayo said the court’s decision also illustrates the tension between law and morality, noting that it is also a vexed and recurring issue in jurisprudence.

According to him, scholars and jurists are divided on whether law should enforce morality and the extent to which law should punish what the society considers as an immoral conduct. He noted that many agree that every society must have shared moral values which its laws must project, preserve and promote.

The don said: “The rule that prohibits female officers from getting pregnant is no doubt a moral rule which Police Authorities have attempted to give a legal cloak. There is no doubt that the regulation is totally unreasonable and the court could have invalidated it on the ground of its interference with the liberty and privacy rights of affected female police officers and not on the ground of discrimination. This is a legal argument.”

All Policewomen may claim benefit of judgment, but…

Prof Akintayo also considered the practical effect of the judgment on the police.

He noted that the decision of the Federal High Court applies not only to the successful claimant but to all female police officers who may wish to claim the benefit of the judgment.

“But imagine the implications for discipline and efficiency if it becomes the vogue for unmarried female police officers to become pregnant. This will not give the police a positive image. It will also not give the country a good image.”

He advised the police to revisit its regulations to expunge patently discriminatory provisions.

Judgment affirmation of equality

Otteh also backed the judgment, describing it as “a fair construction and affirmation of the equality principles underlying Nigeria’s constitution, which, simply speaking, means that persons equally placed ought to be equally treated.

“If policemen do not get punished if they engage in relations outside of marriage, why should the police woman get punished simply because her body is able to tell on her, or reflect the choices she has made much more than the male?”

He, however, wondered whether the Police would obey the judgment “in a principled, institutional way?

Applauding Olajide for challenging “this institutionalised pattern of injustice,” Otteh argued that “Without ending the discrimination and victimisation of all female police officers who face the prohibitions of Regulation 127 generally, (the police) will not be respecting the decision of the court faithfully”.

Ejiro Ayara didn’t leave secondary school as the best student graduating student, but through hard work and faith in God, she changed her destiny. Ayara, from Udu in Delta State, tells ROBERT EGBE how she bagged a First Class at both the Joseph Ayo Babalola University and Nigerian Law School.

I am Ejiro Winifred Ayara. I am 21 years old and an indigene of Delta State from Udu Local Government Area (LGA). My hobbies include baking and reading.

Family, school life

None of my parents is a lawyer. I didn’t even grow up knowing any lawyers except the popular ones on TV.

My parents are Dr. Charles Ayara and Mrs. Anna Ayara, My dad is a retired officer of the Nigerian Army, and my mom is the proprietor of a school. I am the last child and I have three older siblings.

I attended Ivory Tower Model College Masaka, Nasarawa State. To be honest, I wasn’t really the best student in secondary school although I would occasionally come second or third in my class. But I wasn’t too serious. It was only in university that I became intentional about academic excellence.

Best-graduating Law student

I am a graduate of Joseph Ayo Babalola University (JABU), Ikeji-Arakeji, Osun State. I graduated in 2020. Studying Law at JABU was a great experience. I had lecturers who were so interested in my success and they no doubt gave me the tools that aided my success at the Law School, not to forget the non-academic staff, who were always supportive. Towards the end of my undergraduate programme, I had some health challenges but I was able to overcome them by the grace of God. I graduated with a First Class (4.79 Cumulative Grade Point Average, CGPA) and as the best-graduating student of the College of Law 2019/2020 set.

How I conquered Law School challenges

At first, Law School seemed to be as difficult as I had heard about from others because of how voluminous the syllabus was. But later on, I discovered that I had allowed people’s experiences to shape my perception. So, from my externship I decided to only focus on people who believed that Law School was easy and doable; that mental shift saved me.

I don’t know if this is a universal formula, but what worked for me was having a plan at each phase, consistently executing that plan and praying for God’s grace to crown my efforts. For me, Law School had three phases. The first was the hard work phase which was the first term before externship. At this stage, I focused on learning my principles and understanding. The second was the externship phase. Here, I focused on reading through the syllabus and mastering my authorities. The third was the smart work phase: I studied a lot of past questions at this point and focused on learning how to answer questions intelligently. Again, a lot of people worked as hard as and even harder than I did, but I believe that God’s grace and the spirit of excellence gave me an advantage.

Law School social life

I am truly not a very social person but my escape was Chapel activities and CLASFON (Christian Law Students’ Fellowship of Nigeria) programmes. I also had a reading group with people I prayed with, so, that was my own escape from the pressure of law school and I highly recommend this.

Awards galore, First Class at Law School

At the university, I got the Dean’s prize for being the best-graduating student from the College of Law 2019/2020 set, the university scholars’ award and the third overall best-graduating student prize. At the Law School, I got the Director-General’s award for 1st Class.

For my Call to Bar celebration, my family hosted a thanksgiving party for members of my church and some of their friends.

Making double First Class

It feels awesome, to say the least. I am happy about how much joy my success has brought to my family and my university. I am grateful to God for glorifying Himself through my success at the Law School. Out of over 5,000 students, I was a part of the two per cent that distinguished themselves in the ‘Almighty Bar final exam”. I must also say that it is very validating because a lot of people have this misconception about graduates from private universities, which, as you can see, is unfounded.

Review Law School grading system

Although I was fortunate enough to make a first, I know so many exceptional students who didn’t and after seeing their result breakdown it was just one course that prevented them from achieving their goal. My view is that the grading system should be changed to a Pass or Fail mechanics, just like in foreign jurisdictions. This way, your grade won’t prevent exceptional graduates from missing out on opportunities just because of one course or unforeseen circumstance during the exams.

Is Law School training adequate?

I do not think nine months is enough to teach you all you need to know in order to thrive as a lawyer. Law is a skill-based profession; you become exceptional by actually practising Law. Law School can only teach you core values like consistency and diligence, which you need to succeed. But you would have to learn the rest on the job.

Wig, gown important

I think it is fundamental given the origins and it helps to further distinguish members of the legal profession. So, I do not think the wig and gown should be scrapped. However, I think judges could be more considerate especially if the condition of the courtroom is not conducive.

Why I would prefer a non-lawyer spouse

I  honestly would rather not marry a lawyer. I would like my husband to be in a different profession from me for the sake of it. But I can’t contend against God’s Will, especially since I am currently surrounded by lawyers (laughs).

SAN, Professor or Judge?

Professor. I really enjoy teaching and I feel most fulfilled when I help people understand something that I do.

Second chance at chosing a profession

If I had another chance I’d still chose to study Law. It’s a wonderful profession that impacts how you think and even how you interact in society. If not law, I would have studied Accounting.

The future

I am currently a Trainee Associate at Olaniwun Ajayi LP, a leading Law Firm in Nigeria. However, I plan to continue my education until PhD level. I am passionate about Sustainable Finance and Development and I intend to pursue that in the coming years both locally and internationally. I am also working on some mentorship projects with some other exceptional lawyers and we plan to build a platform for law undergraduates to promote academic excellence.