In an interview with 92.3 Sparkling FM, based in Calabar and monitored by our Correspondent NSA GILL, former Senate Leader Victor Ndoma-Egba, SAN, spoke on the Petroleum Industry Act (PIA) amid criticism from some Niger Deltans. Ndoma-Egba, the last Chairman of a substantive board of the Niger Delta Development Commission (NDDC) also gave his views on the state of the NDDC.

The Petroleum Industry Act (PIA) provides that the NNPC will be commercialised in the next six months. What does that portend for the economy and what is your reaction to complaints by host communities’ stakeholders about the Act?

It will help the economy and it will bring positive development because I have always believed that business is for the private sector and government should restrict itself to governance  and provide the necessary environment for business to thrive. I have never believed that government has any business in business.

However on the issue of percentage for Host Community Trust Fund, for me, the issue is what should be our final destination in our federalism? And that is fiscal federalism in which every state should be in position to control her resources. That should be our ultimate decision. But before we get there we are looking at incremental improvement in our situation. I have heard the arguments; some say it should have been three, five or 10 per cent may be. I am saying that if the host communities actually wanted a figure higher than three per cent, there should have been some stakeholders’ engagement prior to the passage of the bill between stakeholders of the region and their legislators in the National Assembly. If the stakeholders are dissatisfied with the three per cent that has been provided for in the bill, then it is a clear evidence of the failure of politics in the region because for a sensitive issue like that, there usually ought to have been a high level stakeholders engagement where the governors, the National Assembly members, the traditional rulers, the major players in the region and the experts from that region on how to proceed. I saw no evidence of that kind of engagement, so, it is just the question of the failure of politics. The people of the region are crying after spilled milk. Steps ought have been taken long before now to engage one another to ensure that their interest was protected but I did not see such engagement.

People blame lawmakers from the Southsouth, that they did not represent the region’s interests. What is your take on this?

You can’t just make a scapegoat of the National Assembly; every leader of the region should share in the blame. In an example, during my stay in the senate when the NDDC bill was passed, the then President Olusegun Obasanjo withheld his assent to the bill but the National Assembly overrode the president and passed it into law. But that could happen because the lawmakers engaged stakeholders from every part of the country and that is how politics is played. The governors then were involved but I did not see that kind of serious engagement by stakeholders of the region this time around.

Read Also: ‘Nigeria unripe for electronic transmission of results’

The governors of the region are saying what has happened is a recipe for disaster in the region. Do you agree?

I would have wished the host communities got more but from what I know of the region, it is not just having enough but the mechanism for the transparency and accountability of whatever you get. We have the NDDC, Ministry of Niger Delta and Amnesty for how many years? Has there been any change in the fortunes of the Niger Delta region and all these organisations I have mentioned have been run by sons and daughters of the region. Has there been any change? So, you added another five or 10 per cent without ensuring that there are mechanism for accountability and transparency in the use of these funds, without a master plan for the region, without serious stakeholders’ commitment to the implementation of a predetermined master plan for the region. You will just be getting more money to fritter away.

At this point in time it will make more sense to me if we have a mechanism to ensure that the three per cent that has been provided for is transparently and judiciously used to develop the region, and that is what has been lacking in the region. We had a water-tight stakeholders’ developed master plan for the region but it was abandoned as soon as it was passed. So, the issue is not how much money you have but what will come out of that money. We have seen quite a lot but what have we seen to reflect the amount of money we received in the region in the last 20 years? If you do not have any strategy, methodology, any mechanism for transparency and accountability you will just be getting more money to waste.

Who is to ensure that this money or strategy put in place is used for what it is meant for?

First, let me say that from when the Ministry of Niger Delta was created, all the ministers have been indigenes of the region. The Chairmen and Managing Directors of NDDC, operators of the Amnesty Programme have been sons and daughters of the region. Between the minister and the NDDC they could develop a master plan for the region that integrates the economies of the member states of the region and leave these pitiable projects that are done in competition with local governments or building classroom blocks. I think they can do better than that. By now there should have been coastal roads linking all the NDDC states, by now we could have had an aviation hub in the state, specialists hospitals in the region, develop sports to a level it would have become a major industry to engage our young men and women. By now we would have improved the fibre optic of the region to increase internet penetration and challenge the creativity of our young men and women but what do we see? It is the NDDC building a borehole on one side of the street and the state government raise a borehole on the other side of the street and at the end of the day, you have two boreholes that are not working because there is no ownership of the projects.

So, we ought to develop a master plan by the ministry and the NDDC that was set up by law with a very clear mandate and specific provisions on how the place should be run. But in the past one and half years the NDDC has been moribund and no board under the flimsy excuse of forensic audit. Under the law establishing the NDDC it is the board of the NDDC that should commission the forensic audit. We have all sorts of excuses to make sure that the place does not function.

My position is that we should not put the cart before the horse. If you have a plot of land you cannot develop first without having a survey plan and then a building plan not to talk of a region. How do you develop a region without having a plan? For me, whether it’s three per cent or five per cent, it’s premature. The ultimate goal is we get to a point where we have true federalism that every region, every state controls her resources. That is the ultimate goal.  But before we get to that position, we should establish systems that will guarantee transparency and every year we measure where we are in terms of development.

The NDDC has not lived up to expectations. What do you think is responsible for this?

There are several reasons and the first is that the master plan was abandoned by the people who should implement it. The master plan was driven by the NDDC and it was the stakeholders master plan which they generated and the government, host communities, development partners made their inputs before that plan was presented to President Olusegun Obasanjo in 2006. Yes, I was there for a while. My letter of appointment said I was going to be there for four years as Chairman but I was Chairman for less than two years. The point is this, not because I am affected, I’m not aware if there is any board of NDDC that has served out its term. So, if you don’t have a guaranteed tenure, how do you plan? It is in your tenure that you say in first, second, third and fourth year I will do this. The law setting up the NDDC has been observed more in breach than in compliance. Since the law has been observed more in breach than in compliance, you do not have plans.

We tried to set up a Niger Development Bank when I was there and the reason was simple; oil is a terminal resource and one day it will finish and the funding of NDDC comes from the federal allocation and the oil companies, so there was need to begin to look beyond oil on how to fund development projects and make them survive boards and management of the NDDC. So, we thought that if we have a regional development bank that will handle those mega projects, it was not matter of who was chairman or Managing Director, the mega projects will go on. We also had plans to ring the region with fibre optic and that took us to Sao Tome since they had surplus to get the excess. We had a programme to develop sports but since we left I have not heard a word of any of these programmes and all what we hear is forensic audit. You take the East-West Road which has been on since President Obasanjo and he left many years ago, yet we are still on it.

For me it is not the amount of money but making sure that every kobo has its value and the people see the value of that kobo in their lives but so long as we still have this basket and we keep pouring water into this basket, it does not matter the quantity of water you pour in, it will leak.

Lagos-based activist-lawyer Kabir Akingbolu is known for his radical views. In this interview with ROBERT EGBE, he stirs controversy by backing the Senate’s rejection of electronic transmission of results and also approves of hardline measures against secessionists, among others.

First Vice President of the Nigerian Bar Association (NBA) John Aikpokpo-Martins argued that the President was required by the constitution to move against secessionists, whether Boko Haram, Sunday Igboho or Independent People of Biafra (IPOB) leader Nnamdi Kanu, since there is no room for it under the law. What is your view?

Secession is a very serious offence. Yes, there is no room for it. Secession is treasonable felony; you are trying to topple the government and one of its elements. If you want to try someone for treasonable felony you must establish that 1: he has declared an intention to unleash terror to make the government unpopular; 2: that he has followers. In this case, when you look at the secessionists, IPOB leader Nnamdi Kanu, Sunday Igboho and the rest of them who are deceiving people here and there, they already have leaders, followers. I am not saying people cannot make legitimate demands. If you want to move away from Nigeria, you can follow legal ways, there are legal procedures. But it is not always very easy for a federation to break up.

How can secessionists break away lawfully?

There is no written law. It is not a matter of a written law. We (Nigeria) came by an unwritten law too. We were amalgamated in 1914 – Southern and Northern protectoratesw. If any group wants to succeed, it is through dialogue. You put your demands on the table and follow it there, because in most cases, a peaceful method may not end the secessionist bid and aggrieved parties resort to war. For instance the civil war in 1967, millions died in the process. 1967-70 was a long time, which proves to us that it is not easy to cut yourself away from a country. In Spain recently, they (Catalonians) tried it (violent secession) it didn’t work. A lot of people just died, wasted. It’s only in a few places that (violent secession) will not result in civil war. Once you have behaved in such a way that it can force the Commander-in-Chief who is the Chief Security Officer of the country, or the governor of the state to command his troops to fight you, the offence has been established, because the way they are conducting themselves, telling people there won’t be elections in 2023, that they will break away, etc. Anyone can make a lawful demand to say, ‘I don’t want to be part of this (country) but not in a way that will cause restlessness. Someone was shot dead in Ojota, an innocent soul, following the agitations. In Ibadan, a lot of civil unrest took place. In several places in the East as well. At the last count, 42 INEC offices were burnt down; this is sending signals that all is not well. We know that the government has failed in terms of security, but you can’t use illegality to fight illegality. The government has failed, the Buhari government is nowhere in terms of security.

Read Also: Break traffic law, face consequences, mobile court warns

The Federal Government often resists pressure to classify the bandits operating in some parts of the North as terrorists, to the chagrin of some Nigerians. Is the government’s position valid?

Our leaders are not sincere. That’s just the truth. There is no need for all of these change in nomenclature. A criminal is a criminal. The mistake we seem to be making is that we seem to be saying that this is a thief, but it is our thief. Until that culture is removed from us, there will be no peace in Nigeria.

Igboho and Kanu are in custody. Do you think there is a legal way out for both men?

Yes, there is a legal way out, if government will not involve politics. For instance, Kanu started trial a long time ago. His trial was ongoing, before he fled the country. Before you caught him, you had a game plan; you wanted to catch him to come and face his trial. If the reason for you bringing him is to come and face his trial, you are now the one that is not making him available for his trial. Probably, you don’t have any evidence against him, maybe. Probably, you just want to victimise him, maybe. But from the look of things, there is no layman that will understand.The man on the street will believe you are witch-hinting him. Because if you want to prosecute him, this man is in your court already, for goodness’ sake. It is only in Nigeria that a security agent will arrest you and go and be searching for evidence to nail you. The way they have done it, the government has not earned a pass mark. And Igboho too played into their hands, because his passport has been seized, whether lawfully or unlawfully. By ECOWAS convention when you’re entering an ECOWAS country, you must have your passport. But he entered the Republic of Benin without a passport. Some said he possessed another one. If he had done that, that would have been illegal. You can’t have too passports.

The Senate is opposed to the electronic transmission of results, despite assurances by the Independent National Electoral Commission (INEC) that it is up to the task. Where do you stand on this?

There are some things we are not ripe for in this country, whether we like it or not. Like when we talk of state police, State Independent Electoral Commission (SIEC). We don’t have efficient service providers. When you want to transmit result, if the service is not there, it becomes problematic. I know some places in the riverine states where there is no network service at all. Do you now want to send the results electronically from there and them move down to where service is? It would have been compromised. Let me cite a good example: the NBA is filled with learned people, it has done two electronic voting since 2011, yet lawyers are still in court till today over the elections. If NBA, the most “learned people” cannot conduct electronic voting, you mean INEC can do it across the country? In villages, how many people are aware of this? My mother and father, are they aware of electronic voting? The time is too short for us to adopt this.

The Lagos State Special Offences (Mobile) Court has warned recalcitrant motorists fond of violating the traffic law of the State to desist or be ready to face the consequences of their actions under the Law.

The Coordinator, Special Offences (Mobile) Court, Mrs Arinola Ogbara gave the warning during a roadshow to create public awareness and sensitise residents on the importance of obeying the state’s traffic law.

She noted that driving against traffic and plying designated (BRT) corridors and obstruction of vehicular movement on the highway contravenes the Lagos State Transport Reformed Law, 2018 and is punishable under the law.

“All motorists, including private car owners, are hereby warned to henceforth desist from all forms of traffic obstructions, driving against traffic (one-way) and plying BRT corridors,” Ogbara said.

Read Also: 25 bills become law in Ogun in six months

“It is disheartening to observe that recalcitrant commercial bus drivers and private car owners are in the habit of disobeying all road signs and signals in contravention of the traffic law thereby causing an impediment to free vehicular traffic across the State.”

While highlighting the role of ‘Transportation and Traffic Management’ in Governor Babajide Sanwo-Olu’s T.H.E.M.E.S agenda, Ogbara said Lagos State Special Offences (Mobile) Court was created by the State Government to prosecute minor offences especially, those committed by traffic offenders.

She stated that “the Mobile Court has deemed it necessary to sensitise members of the public on the state’s zero-tolerance to violation of traffic laws.”

The Coordinator, however, enjoined the public to partner with the Lagos State Government towards ensuring the free flow of traffic on Lagos roads and the protection of lives and properties.

 

OGUN State Attorney-General and Commissioner for Justice, Akingbolahan Adeniran has said that Governor Dapo Abiodun assented to no fewer than 25 bills passed by the State House of Assembly between January and June of this year.

Adeniran disclosed this while presenting a mid-year appraisal of the 2021 budget performance of the Ministry before the State House Committee on Justice, Ethics and Public Petitions, at the Assembly Complex, Oke-Mosan, Abeokuta, the State capital.

He said five Executive Orders establishing the State Safety Commission, Waste Management Authority, State Skills Funds, Lagos/Ogun Joint Development Commission and Framework for Responsible and Inclusive Land Intensive Agricultural Investment (FRILLIA), were also issued within the period under review.

According to Adeniran, the Public Prosecution Department of the Ministry of Justice set out strategies which resulted in turnaround time for issuance of legal advice from more than two years before to four weeks for legal advice and six weeks for filling of information papers towards aiding speedy justice dispensation.

Chairman House Committee on Justice, Ethics and Public Petitions, Hon. Solomon Osho directed Adeniran to avail the Assembly within a week, the details of all bills signed into law in the period under consideration, to enable lawmakers have an up-to-date knowledge on the status of the bills transmitted to the executive arms of government.

Read Also: Decongesting prisons by executing death row inmates

In a related development, the Chief Registrar, Ogun State Judiciary, Mrs. Olufunke Odubanjo, while presenting the mid-year budget performance of the Judiciary, hinted that the state remained the first in the Southwest geo-graphical zone to achieve the effective running of four Multi-door Court Houses situated at Abeokuta, Ijebu-Ode, Sagamu and another newly commissioned in Ota.

Mrs Odubanjo stated that despite the JUSUN industrial action which slowed down the budget performance of the Judiciary, there was renovation of High Courts 2 and 3 at Sagamu, commissioning of High Court, Idi-Oke in Igbesa and renovation of High Court Library, Ilaro.

She added that N40.53m revenue was generated for government coffers in the period under review.

Meanwhile, Ogun State Customary Court of Appeal has called for release of funds by the state government to enable it rehabilitate its court buildings across the state’s three senatorial districts.

The court’s Chief Registrar, Mrs. Titilayo Bello spoke during a mid-year appraisal of the 2021 budget performance before the State House of Assembly Committee on Justice, Ethics and Public Petitions-led by Hon. Solomon Osho.

She disclosed that no fund was released for capital projects out of the approved N100 million for the financial year as of June this year, stressing the need to release funds for needed projects and re-roofing most of the customary courts across the state.

She also called for an increase in the court’s overhead expenditure of N183.6million to enable the court achieve its set objectives of dispensation of justice without any delay and in line with the provision of the law.

She emphasised that all the customary courts in the state were given a facelift, despite the paucity of funds, noting that the court has to put measures in place for the comfortability of the plaintiffs, defendants, co-defendants, staff and the entire judges.

“Indeed, we have achieved below average, from what has been available to Ogun State Customary Court of Appeal in terms facelifts. Despite the paucity of funds, the Customary Court of Appeal in the last six months has been able to bring justice closer to the people and all our customary courts across the state were given facelifts”, Bello said.

 

Custodial centres are bursting at the seams nationwide. No fewer than 3,008 of the inmates are condemned criminals whose death warrants are yet to be signed by governors, years after many of them had exhausted their appeals. Minister of the Interior Rauf Aregbesola believes executing condemned criminals is one of several ways to decongest the centres and save cost. But there are other arguments, writes ADEBISI ONANUGA.

Minister of the Interior, Rauf Aregbesola, on July 23, raised the alarm on congestion of custodial centres. He noted that the country’s correctional facilities have a combined capacity of 57,278 inmates but currently hold 68,747, comprising 67,422 males and 1,325 females. 50,992 inmates, which is 74 per cent of the population, are awaiting trial. Only 17,755 inmates, who constitute 26 per cent, are convicts.

The minister, who spoke at the inauguration of the Osun State Command headquarters complex of the Nigeria Correctional Service(NCS) in Osogbo, noted further that there are 3,008 condemned criminals awaiting execution in the centres. They comprise 2,952 males and 56 females, both making up 4.8 per cent.

 

Why Nigeria has a high number of condemned convicts

There are several reasons for the relatively high number of convicts on death row. Firstly, the death sentence is still a lawful method of punishment under the law. Secondly, governors are traditionally reluctant to sign warrants authorising custodial officials to execute condemned persons. They are also generally unwilling to pardon condemned persons. Another, perhaps unusual, reason has to do with the hangman.

A competent source told The Nation that there is just one hangman in the country, who goes wherever his service is needed.

This explains why a condemned convict will stay on in prison for years without hope of obtaining state pardon and thereby swelling the overstretched prison population and facilities.

Between 2007 and 2017, there were only seven executions.  The last execution took place in 2016, according to a report by Amnesty International (AI).

 

The law empowering governors to sign death warrant

Before the execution of a condemned convict can be carried out, the law requires that the governor must sign the death warrant of the condemned prisoner.

This is in furtherance of Section 33(1) of the Constitution, which provides that “Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria”.

Read Also: I’m not afraid of court case, says Secondus

Death warrants were last signed in 2013 in Edo State for the execution of  five condemned prisoners, four of whom were executed by hanging.

 

Notable condemned convicts in prisons

One of the most notorious condemned convicts is the leader of the Christian Praying Assembly, Rev. Chukuemeka Ezeugo King, who was sentenced to death in 2007 and which was confirmed by the Supreme Court in 2016. He has thus been awaiting the hangman’s noose for 14 years.

Justice Raliat Adebiyi of an Ikeja High Court, Lagos on December 17, sentenced a Lagos prince to death by hanging for strangling his boss to death and dumping her body in a well. The convict, Prince Adewale Oyekan, son of the late Oba Adeyinka Oyekan, who died in 2003, murdered Alhaja Sikirat Ekun, a businesswoman and politician, on October 1, 2012. Oyekan, who managed Ekun’s restaurant, paid her former domestic servant, Lateef Balogun, N6,000 to kill her, the prosecution said.

The pair strangled the 62-year-old woman before throwing her body down a 1,000-feet well in her home.

Also on January 28, 2020, the High Court of the Federal Capital Territory, Abuja, convicted and sentenced Maryam Sanda to death by hanging for killing her husband, Bilyaminu Bello.

Delivering judgment, Justice Yusuf Halilu said: “Every available evidence” had proved that Maryam “fatally” stabbed her husband to death in Abuja on November 19, 2017.

There is also the case of Paul Egbunuche, who was sentenced to death alongside his father, Celestine Egbunuche. He had been in jail for 18 years and on death row for six years.

They were both accused of hiring people to kidnap and kill a man over an alleged land dispute in Imo State. Though they maintained their innocence, they were detained in June 2000 and eventually convicted and sentenced to death in 2014.

The turning point came for Celestine when a photo he took with his son, Paul, on the occasion of his 100th birthday and a story by a local newspaper on them went viral. Their case renewed the debate on length of time condemned prisoners spent waiting for the hang man and agitation for their release, especially the father.

Celestine Egbunuche was eventually granted state pardon by former Governor Rochas Okorocha of Imo State but died about four months from health challenges he faced while in custody of the Enugu Custodial Centre.

 

Solution to congestion

To decongest the facilities, Aregbesola proposed three measures.

The first and most radical, is for governors to sign the death warrants of condemned criminals who have exhausted their appeals. Executing the inmates would free up space for other categories of inmates.

Secondly, the governors could set free, on compassionate ground, other categories of inmates. These include aged inmates on account of the long time spent in custody, the terminally ill and those who have been reformed and demonstrated exceptionally good behaviour; those who have been in custody for a period longer than the maximum sentence their alleged offences carry, which he described as a miscarriage of justice.

Thirdly, commute other sentences to life or a specific term in jail by putting in place a system of amnesty and prerogative of mercy that will review all cases of convicts on death row periodically.

 

Death sentence in other climes

According to Washington DC based Death Penalty Information Centre, the death penalty has now declined dramatically around the world in recent years. Between 1976 and 2017, more than 75 nations have abolished the death penalty for all crimes, while others have abolished it for capital crimes.

 

Stakeholders kick

Coming at a time when the world is moving away from death sentence and the Federal Government is under pressure to expunge death sentence from its laws, Aregbesola’s suggestion on signing the death warrant drew the ire of many stakeholders.

But while Senior Advocates of Nigeria (SAN) Chief Wale Taiwo and Chino Obiagwu opposed the idea, Lagos-based activist lawyer Kabir Akingbolu backed the minister’s proposal.

Unconstitutional for governors to refuse to sign death warrant

Akingbolu argued that under the Criminal Code, “the death sentence is still part of our laws. So, except we repeal those laws or they are no more in effect, then we can say the death sentence should not be carried out again.

“A judgment has been passed by a court, the governor of the state must complement it by signing the death warrant of each of the condemned persons. It is unconstitutional (for governors to refuse to sign); they are not performing their constitutional duties. The law recognises this.

“Even the fundamental human rights that we talk about, Section 33 says we have a right to life, but Section 45 says this right can be taken away in pursuance of execution of a valid court order.

“Someone who was charged with murder, was convicted at the high court and sentenced to death, lost at the Court of Appeal and the Supreme Court confirmed the death sentence, what is he still waiting for?”

The activist argued further that, yearly, the country budgets “billions to feed those who are not supposed to be among us again. But because we want to look like a modern society, because we say in Europe they don’t kill anymore, we now say we leave them in prison. They are eating our money; it’s a technical conversion to life imprisonment.

“Even in the Bible or Quran, it is an eye for an eye. If you take life, you surrender your life as well. The law is there, why are we not enforcing it?

Noting that prison congestion is a real menace, Akingbolu said inmates were living in sub-human conditions.

He said: “If you go there you will see lice, bedbugs; where they live is in squalor; the food, their welfare is too poor. The fact that somebody has been condemned to prison does not mean that he has lost all rights. It is supposed to be a correctional facility, but the conditions meted out on them are inhumane, degrading and not compatible with modern society.

“There is no how we can achieve a humane, modern prison system if our prisons are still overpopulated. That’s why I agree with Interior Minister Rauf Aregbesola in toto.

“By signing a death warrant you would not have committed any legal or religious crime; the law of the land recognises it. So, why should we say they shouldn’t kill? They should sign the death warrant.

“According to Aregbesola there are already 3,008 inmates that are supposed to be dead by now, but have not died. They have no reason to be living again; even leaving them in prison is another torture, because of the fear of the hangman that will not come, that “I may be killed tomorrow, I may be killed tomorrow” but nothing is coming.”

But Chief Taiwo differed.

He reflected on the constitutional guarantee of the right to life made subject to the provision for death sentence as might be pronounced by a court, noting that in Nigeria and elsewhere, the proviso has generated much controversy with opinions divided.

Taiwo argued that Aregbesola’s call for governors to sign death warrants of convicts is an invitation for the implementation of the full letters of the law.

“However, it is pertinent to observe that entitlements of a person under the law can either come as a right or privilege. Condemned criminals who have exhausted their rights of appeal still have certain privileges. Privileges that might come by way of a prerogative of mercy from the Executive remain intact,” he said.

The SAN urged governors not to rush into signing death warrants

He said: “So, can a convict have a second chance to life? I dare to answer in the affirmative. The governor is empowered under the constitution to extend such privileges to a condemned convict. That is why it is important that governors should not rush to sign death warrant”.

 

A faulty justice system

He further opposed the minister on the ground that the country’s justice system is not foolproof.

Taiwo asked: “What is the justice behind granting pardon to a particular condemned convict while the other is executed in accordance with the law? Again, the justice system in Nigeria is not in its best form. More than 85 per cent of convictions for capital offences in Nigeria are secured through confessional statements, majority of which come as a result of coercion by the law enforcement agencies. Nigeria needs an organisation like the Innocents Project in the United States of America that is committed to exonerating innocent persons wrongly convicted through the use of DNA testing.”

He further campaigned for the abolition of the death sentence

“My take is, and I say this with all sense of responsibility, that it is high time Nigeria joined the rest of the civilised world to abolish capital punishment in all ramifications. It is barbaric, it is inhuman, it is brutish and should not be allowed to thrive.

“The best approach to decongesting the prisons is not to hurriedly execute condemned criminals, but not to congest the prisons in the first instance and this is possible by creating a society devoid of crime and criminality,” Taiwo said.

 

How to decongest prisons, by LEDAP

Legal Defence and Assistance Project (LEDAP) also joined the opposition.

Its Executive Director, Chino Obiagwu (SAN), argued that the best way to decongest the prison was to ensure that the 50,992 inmates in the correctional facilities got a fair trial with adequate legal representation.

This, he added, will go a long way in decongesting the correctional centres nationwide “rather than call for the execution of death row inmates of a mere 3,008.”

He expressed concern that the execution of inmates on death row was a final, irreversible punishment and the huge risk of executing an innocent person could not be eliminated.

The group further argued that the use of death penalty has never been proven to be an effective tool for deterring people from committing crimes.

It referenced Section 35 (4) of the Constitution that stipulates that the police must bring a person before a court of law within “a reasonable time”, noting that if there is a competent court of jurisdiction within a 40-kilometre radius, “a reasonable time” is defined as 24 hours.

“If suspects have not been brought before a competent court of jurisdiction within two months, they must be released unconditionally or “upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.

LEDAP noted that in practice such principles and provisions of law were not adhered to by the police.

Obiagwu said: “It is only reasonable that the priority and focus of the Ministry of Interior should be channelled towards ensuring that the 50,992 inmates get a fair trial with adequate legal representation which will go a long way in decongesting the correctional centres nationwide rather than calling for the execution of death row inmates.”

 

Prisoner can’t be executed while case is pending

LEDAP said it currently has two pending cases in court: Godwin Pius & 2 Ors. V Governor of Abia State & 35 Ors (CA/L/797M/12) and Nnenna Obi & Anor v Comptroller General of Prison Services (FHC/ABJ/CS/1644/2020), challenging the constitutionality of death penalty of all inmates on death row in Nigeria.

“We strongly urge all state governors to desist from signing the death warrant. It is noteworthy to state that the Supreme Court in the case of Nasir Bello v Attorney General of Lagos State held that a prisoner cannot be legally executed while his case is pending in court,” the lawyer said.

LEDAP argued that death penalty as a form of punishment  was not the solution to crime and must be condemned in Nigeria.

LEDAP said: “This cruel, inhumane form of punishment has been discredited as an effective form of punishment. In most cases, these inmates on death row were convicted in grossly unfair trials, on the basis of torture-tainted evidence with inadequate legal representation.

“Furthermore, by virtue of Section 17 (2) (a) of the Constitution of Nigeria 1999 (as amended), ‘every citizen shall have equality of rights, obligations and opportunities before the law’.

“The weight of death penalty is largely disproportionally carried by those with less advantaged socio-economic status in the society considering their limited access to adequate legal representation, or being underprivileged in their experience of criminal justice system where the affluent persons are treated with utmost courtesy notwithstanding the gravity of the offence.”

In conclusion, the group argued that the death penalty undermined human dignity.

“We are calling on the Nigerian government to enact an official moratorium, as this will contribute to the enhancement and progressive development of human rights,” Obiagwu added.

The dust is yet to settle on the August 9, Federal High Court judgment stopping the Federal Government’s control of the nation’s earning from the Value Added Tax (VAT) and related taxes. While some lawyers say it is of no major consequence, likening it to a flash in the pan, others see it as a major leap in the quest for restructuring (fiscal federalism and devolution of power), ERIC IKHILAE reports.

Proponents of fiscal federalism and agitators for a fair and just allocation of the nation’s resources got a fillip with the August 9, judgment of the Federal High Court (FHC), Port-Harcourt, which halted the Federal Government’s control of the nation’s earning from the Value Added Tax (VAT) and related taxes.

Before now, they had opposed the arrangement whereby states that have banned the consumption of certain items still benefitted from the VAT from such items consumed in others states.

There has also been the debate about the disparity in the percentage of contribution by some states as against what is benefitted by each state.

The need for redress might have informed the suit by the Rivers State Government, marked: FHC/PH/CS/149/2020, filed in the name of the state’s Attorney-General, with the FIRS and the Attorney-General of the Federation (AGF) as defendants.

The plaintiffs had, among others, prayed the court to declare that the constitutional power of the Federal Government to impose taxes and duties was only limited to those listed as Items 58 and 59 in Part 1 of the Second Schedule to the 1999 Constitution (as amended).

They also prayed for a declaration that, by virtue of the provisions of Items 7 and 8 of the Part II (Concurrent Legislative List) of the Second Schedule to the Constitution, the power of the Federal Government to delegate the collection of taxes could only be exercised by the state government or other authority of the state and no other person/entity.

Read Also: VAT collection: FIRS files appeal against court verdict

They prayed that all statutory provisions made or purportedly made in the exercise of the legislative powers of the Federal Government, which contained provisions that were inconsistent with or in excess of the powers to impose tax and duties, as prescribed by Items 58 and 59 of the Part I of the Second Schedule to the 1999 Constitution, or inconsistent with the power to delegate the duty of collection of taxes, as contained in Items 7 and 8 of Part II of the Second Schedule to the Constitution, are unconstitutional, null and void.

In his August 9 judgment, Justice Stephen Dalyop Pam of the Federal High Court (Port-Harcourt division) agreed with the plaintiffs’ claims and proceeded to issue, among others, a perpetual order of injunction restraining the defendants from collecting, demanding, threatening and intimidating residents of Rivers State to pay to FIRS personnel income tax and VAT.

Justice Pam was of the view that there was no constitutional basis for the FIRS to demand for and collect VAT, Withholding Tax, Education Tax and Technology levy in Rivers State or any other state of the federation, noting that the constitutional powers and competence of the Federal Government was limited to taxation of incomes, profits and capital gains, which did not include VAT or any other species of sales, or levy other than those specifically mentioned in items 58 and 59 of the Exclusive Legislative List of the Constitution.

He rejected the defendants’ argument  that the National Assembly ought to have been made a party in the suit and proceeded to declare that the issues of taxes raised by the state government were issues of law that the court was constitutionally empowered to entertain.

The judge agreed with the plaintiffs, to the effect that, it was the Rivers State and not the FIRS that was constitutionally entitled to impose taxes enforceable or collectable in its territory of the nature of consumption or sales tax, VAT, education and other taxes or levies, other than the taxes and duties specifically reserved for the Federal Government by items 58 and 59 of Part 1 of the Second Schedule to the 1999 Constitution as amended.

Holding that the plaintiffs effectively proved beyond doubt that it was entitled to all the 11 reliefs sought in the suit, Justice Pam declared that the defendants were not constitutionally entitled to charge or impose levies, charges or rates (under any guise or by whatever name called) on the residents  of Rivers State and indeed any state of the federation.

Earlier, the judge dismissed the defendants’ preliminary objections, in which they argued that the court lacked the requisite jurisdiction to hear the suit, and that the constitutional issues raised in the case ought to be referred to Court of Appeal for interpretation.

Immediate reactions

Affected parties have since reacted to the judgment, with the FIRS promising to appeal, while the AGF said it would study the decision to determine what next step to take.

FIRS’ Director, Communications and Liaison Department, Abdullahi Ismaila Ahmad said: “We are appealing the matter immediately,” while the media aide to the AGF, Dr. Umar Gwandu, said: “We will study the judgement and decide on the next line of action.”

Also reacting, the Chartered Institute of Taxation of Nigeria (CITN), through its Registrar/Chief Executive, Adefisayo Awogbade, also elected to first, study a certified true copy (CTC) of the judgement before making its position public, noting that there had been similar decisions in the past.

Plaintiffs’ lawyer, Donald  Denwigwe (SAN) explained that by the judgment,  it was now unlawful for any agency of the Federal Government to collect taxes including VAT in Rivers State.

Denwigwe said: “It is a determination that it is wrong for the Federal Government to be collecting taxes, which are constitutionally reserved for the state governments to collect. So, in other words, the issue of Value Added Tax (VAT) in the territory of Rivers State and Personal Income Tax should be reserved for the government of Rivers State.

Advent of VAT

VAT, as a form of Consumption Tax, according to experts, was introduced into the nation’s tax administration system in 1993 to replace the Sales Tax. They explained that the introduction of the VAT law was with the understanding that the Federal Government (FG), which was the only entity with the capacity to collect at the time, should do so for the states, but at a fee.

“By the arrangement, the Federal Government was to only collect VAT on behalf of the states, but keep a percentage of what was collected to cover the cost of collecting. The major contention then was whether or not the percentage kept by the Federal Government was too high. There was no contention as to what cadre of government has the right to collect, until recent,” Malik Abdullahi, an Abuja-based lawyer said.

Professor Uche Uwaleke of the Nasarawa State University also explained that VAT, as a consumption tax, was used to replace sales tax, adding that it stands to reason that taxes of such nature should be collected and administered by tax authorities of the areas where the consumption takes place.

Place of VAT in Nigeria’s tax earnings

Since its introduction in 1993, VAT, according to data released by the National Bureau of Statistics (NBS), has continued to serve as a major source of tax revenue for the federation. Statistics show that total VAT earning in 2018 stood at N1.108trillion; N1.19tr for 2019 and N1.5tr for 2020.

At the current rate of 7.5 per cent, the country is said to have earned about N2.5tr from VAT in the last 18 months (January 2020 to June 2021). A breakdown of the total VAT earning in 2020, showed that local VAT contributed the most, yielding about N763b (or 49.8percent), with import VAT accounting for N348 billion (or 22.7percent) and  foreign non-import VAT was N420b (or 27.4percent).

Read Also: Rivers State court VAT ruling viewed against the backdrop of legal restructuring

 

In the first quarter of 2021, VAT collection was N496.39b while it increased by N15.8b in the second quarter to N512.25b, according to data from the National Bureau of Statistics (NBS), filed by FIRS.

The breakdown of VAT yield for the second quarter of this year (April to June) showed that N187.4b was from non-import VAT locally, N207.7b from non-import VAT for foreign goods. The balance of N117.1b VAT was from the Nigeria Customs Service (NCS) VAT on imports.

Statistics also revealed disparity in the contributions of states to the nation’s VAT pool. According to a recent report by the group, BudgIT, out of the 36 states and the Federal Capital Territory (FCT), five states contribute the most, with Lagos, Ogun, Rivers states and the FCT leading the pack.

Current sharing formula of VAT

The current operating formula for the sharing of VAT proceeds among the three tiers of government are as captured in Section 40 of the VAT Act, which provides that the VAT pool be shared 15 per cent to the Federal Government; 50 per cent to states and 35 per cent to local governments (net of four per cent cost of collection by the FIRS) and 20 per cent of the pool to be shared based on derivation.

Before Rivers State judgment

Before the August 9 judgment, the courts had on two earlier occasions pronounced on the issue of whose responsibility it was to administer VAT.

One of such instances was in the case by the Registered Trustees of Hotel Owners and Managers Association of Lagos against the AG of the Federation & others, which queried the validity of the Hotel Occupancy and Restaurant Consumption Law of Lagos State.

In its judgment in October 2019, the Federal High Court upheld the powers of the Lagos State Government to charge and collect Consumption Tax (a sales tax) from hotels, restaurants and event centres within the state.

The court was of the view that, based on the provisions of the 1999 Constitution and the Taxes and Levies (Approved List for Collection) Act, the power to impose Consumption Tax was a residual power within the exclusive competence of the states. It proceeded to restrain the Federal Inland Revenue Service (FIRS) from imposing VAT on goods and services consumed in hotels, restaurants and event centres, which were already covered by the Lagos State’s law.

The second instance was in the case by Emmanuel Chukwuka Ukala against the FIRS. It is popularly referred to, in legal and tax circles, as the Ukala case.

The Federal High Court, in its judgment on December 11, 2020 held that the powers of the National Assembly to make laws, imposing taxes, is limited to the profits/income of persons/companies, capital gains and stamp duties on instruments but does not extend to VAT.

Effect of the judgment on existing tax regime

Law experts are of the view that, like every judgment of court, this judgment would impact on the existing tax regime in the country until it is either set aside at the highest court or sustained. They were, however, divided on what nature the impact could take.

According to Abubakar Sani, the judgment may not stand the test of time because the judge took a narrow view of the provision of the constitution in reaching his decision.

Sani said he did not agree with the decision, “for the simple reason that the court applied an unduly (and, therefore, illegitimate) restrictive interpretation of the phrase ‘taxes on incomes, profits and capital gains’ used in Item 59 of the Exclusive Legislative List of the Constitution.

“The Supreme Court has stated time and again that the Constitution should be interpreted liberally and broadly. The mere absence of the words: ‘Value Added Tax’ from the Constitution does not place VAT in the Residual List of the Constitution – even granted that strict language is required for the imposition of tax obligations. I doubt that the judgment will stand the test of time.”

Another lawyer, Tunde Falola argued that, until it is set aside by any of the appellate courts, the judgment was binding on the Federal Government and should be complied with. Falola noted that although they were not parties to the suit, other states could benefit from the decision.

“Definitely other states of the federation can benefit from the judgment. This is because the judgment is a judgment in rem, because it defines the status of the parties to the case. To this end, it is binding on the whole world, parties and whoever, until set aside by the appellate court

“Apart from foregoing, reference was also made to all other states of the federation. In other words, the court emphatically stated that there was no constitutional basis for the FIRS to impose or collect VAT, Withholding Tax from the people of River State or any other state of the federation,” he said.

Falola added that what other states need to do “is to get a copy of the judgment ready and thereafter, write the FIRS whenever demands regarding these categories of taxes are made in their respective states. This is because, until it is set aside by an appellate court, the judgment remains binding an enforceable.”

On his part, Abdullahi argued that the judgment has no major significance on the current tax arrangement vis-a-vis the tax revenue accruable to the Federal Government. He noted that the Federal Government’s role under the current arrangement was not strictly to administer VAT, but to collect for the states, which informed why it is only entitled to 15 percent.

“As it stands today, about 12 to 15 per cent of the total revenue from VAT is collected at the border by the Nigerian Customs Service (NCS). Since no state can collect tax at the border, it still has to be the Federal Government.

“So, the impact on the Federal Government will not be that significant. It is the majority of the low earning states, outside Lagos, Rivers, Ogun, Kano and the FCT, that would be negatively impacted.

“If the judgment is left unchallenged, the Federal Government will be left to concentrate on VAT from government’s contracts and securities transactions, as well as Customs, and the FCT. By implication, FIRS will administer VAT within the FCT and non-import foreign VAT, while the NCS will continue to collect import VAT on international trade all for the benefit of the Federal Government,” Abdullahi said.

Read Also: WoodMac warns on Shell’s oil blocks sale in Nigeria

 

For activist-lawyer Daniel Makolo, the judgment constitutes a major leap in the struggle for fiscal federalism, restructuring and resource control, noting that similar pronouncements would soon follow as it relates to Item 14 on the Concurrent List, dealing with electricity; the establishment, promotion and management of power stations within a state.

“We have been fooled for too long. The state has a responsibility to and within her territorial jurisdictions to cater for the welfare and peculiar needs of the state. It can encourage industrialisation by any means possible, including creating enabling environment by ensuring including power generation and liberalisation.

“This judgment is a quantum leap in our quest for devolution of powers and responsibility to the state. And, on a good day, I see this judgment standing taller and taller on appeal. The judgment covers the entire country of Nigeria even the so-called political sharia states.

“The states can just sit on the fence and enjoy the benefits of the judgment. Smart states will immediately adjust their tax network, bearing in mind their socio-cultural peculiarities and see how to harness the benefits of the judgement,” Makolo said.

He advised the Federal Government and the states “to allow our laws to be tested and expanded through the rule of law only. This will solve our problems largely.”

Judgment, boost for restructuring through justice system

Observers are also of the view that the judgment suggests that the clamour for restructuring could be better addressed through the court, with a constant push at the status quo, as against the lure of violent agitations.

They added that in the face of a pliant National Assembly, inclined to savouring everything thrown at it by the Executive, the best approach at reordering the status quo, the states, particularly those led by opposition parties, ought to actively engage the Federal Government in court on areas where it is obvious the central government was impinging on their rights.

They cited the case in Lagos State between 1999 and 2007 when the Bola Tinubu administration constantly engaged the Federal Government, under the then President Olusegun Obasanjo in court in a bid to deepen the nation’s democracy.

Due to the doggedness of the then Lagos State Government, the state was able to acquire powers to establish Local Community Development Authorities (LCDAs), enact state tax laws and state urban development laws.

In one of the cases done at the Supreme Court against the Federal Government by Lagos State – the Attorney-General of Lagos State v Attorney-General of the Federation (2003) 4 WRN 124 – Justice Samson Uwaiso  said: “In the circumstances, I have to say that Professor Osinbajo is right in his submission that urban and regional planning for the Federal Capital Territory, Abuja is within the exclusive legislative function of the National Assembly but only by virtue of Section 299(a) conferring residual power on it and not the controversial Section 20 of the Constitution.

“Similarly, each State House of Assembly has the exclusive function to make planning laws and regulations for the state under its residual power. It will therefore be in clear breach of the principles of federalism for the National Assembly to make a law in the form and to the detail and territorial extent of the present Nigerian Urban and Regional Planning Decree No.88 of 1992 and an incursion into the legislative jurisdiction of the states. It is a noncontroversial political philosophy of federalism that the Federal Government does not exercise supervisory authority over the state governments.”

Vice President Yemi Osinbajo, who was referred to in Justice Uwaifo’s comment, confirmed this while speaking at a colloquium to celebrate the 80th birthday of the former Governor of Osun State, Chief Bisi Akande.

Osinbajo said:  ”In the period from the civilian government of Chief Bola Tinubu in Lagos, in which I had the privilege to serve, till date, the government of Lagos State has demonstrated that it is possible to have restructuring, especially fiscal federalism and devolution of power to states, but by the process of litigation as opposed to going through the legislature.

“As of 1999, my very first with Asiwaju Bola Tinubu, he made it clear that what was most important to him was for the state to pursue fiscal federalism and devolution of power for our state. He wanted me to study it and then to look at how it could be done and we spent a lot of time and resources, looking at how to do it.

“We realised that going to the National Assembly would be a waste of time and we then decided to go through the process of litigation. As a matter of fact, we went to the Supreme Court and the Federal Government at that time opposed all the moves we made.

“Fortunately for us, and we thank God, we were able to record successes which today, are the major achievements we can say we have scored in terms of restructuring our country, especially in fiscal federalism and devolution of power,” Osinbajo said.