Category: Law

By Eric Ikhilae

 

 

The Attorney-General of the Federation (AGF)’s recent comments on the matter of the ban on open grazing in some parts of the country has raised the question of the constitutionality or otherwise of the policy.

Malami’s intervention was, ostensibly, in reaction to a recent decision by the governors of the 17 southern states to ban open grazing of cattle and other ruminants in their states.

The governors said their decision was a measure to curb the challenge of insecurity, to which the activities of herders has been said constitutes a major element.

Reacting to the development on Wednesday, Malami queried the legality of the policy, arguing that it violates the constitutionally guaranteed right to freedom of movement, adding that it “does not hold water” within the context of human rights as enshrined in the constitution.

Malami added: “It is about constitutionality within the context of the freedoms expressed in our constitution. Can you deny the rights of a Nigerian?

“For example, it is as good as saying, perhaps, maybe, the northern governors coming together to say they prohibit spare parts trading in the North.

“Does it hold water? Does it hold water for a northern governor to come and state expressly that he now prohibits spare parts trading in the North?”

The AGF said those seeking to ban open grazing should first, facilitate the amendment of the constitution to that effect.

“If you are talking of constitutionally guaranteed rights, the better approach to it is to perhaps go back to ensure the constitution is amended.

“Freedom and liberty of movement among others established by the constitution, if by an inch you want to have any compromise over it, the better approach is, go back to the national assembly to say open grazing should be prohibited and see whether you can have the desired support for the constitutional amendment.

“It is a dangerous provision for any governor in Nigeria to think he can bring any compromise on the freedom and liberty of individuals to move around,” Malami said.

 

Herdsmen and crime

It has been said that some persons among Fulani herders have, over the years and in seeking to exercise their supposed rights to freedom of movement, to inhabit and conduct business in any part of the country, gradually metamorphosed from the once benign minders of cows and related animals, usually armed with sticks, to murderous criminals, armed with AK47 rifles and other dangerous weapons, with which they kill and maim fellow countrymen and women.

In 2015, the Sydney, Australia-based Institute for Economics and Peace (IEP), in its Global Terrorism Index (GTI), labelled Fulani herdsmen as the fourth deadliest global terror organisation after Book Haram, the Islamic State in Syria and Iraq (ISIS) and al-Shabab in Somalia.

Another global body, the International Crisis Group (ICG), in its September 2017 report, noted that violent conflicts between nomadic herders from northern Nigeria and sedentary agrarian communities in the central and southern zones have escalated in recent years and are spreading southward, threatening the country’s security and stability.

In its 2018 report, titled: “Harvest of Death: Three years of bloody clashes between farmers and herdsmen”, Amnesty International (AI) documented cases of killings and destruction in many communities in the country.

AI blamed the state for failing in its responsibilities of protecting citizens’ lives and property and also identifying lapses, deliberate indolence among other professional misconduct on the part of security agents.

The AI report showed “how government’s inaction fuels impunity, resulting in attacks and reprisal attacks, with at least 3,641 people killed between January 2016 and October 2018, 57 per cent of them in 2018 alone.”

The group also documented about seven cases, in which it claimed, security forces were aware of attacks but did nothing. “Many attacks lasted for hours, in some cases days, even in communities where security forces were not far away. The response of security forces in some of the instances in Adamawa, Kaduna, Taraba, Benue, Plateau, and Zamfara states was so slow and poor that villagers accused them of complicity in the attacks.

“In some cases, especially in Adamawa and Taraba states, security forces knew attacks were about to happen and saw the attackers but refused to act. Despite these attacks and the killing, which have gone on for years, there has been reluctance on the part of the government to investigate and prosecute perpetrators and this has only encouraged more attacks and killing,” the report said.

 

History of open grazing ban

Observers who queried Malami’s motive wondered why he opposed the southern governors, which came after open grazing bans by other groups.

The Federal Government had, as far back as 2018, indicated its support for the abolition of open grazing when the National Executive Council (NEC) on April 26, 2018, accepted the recommendation of its sub-committee that open grazing of cattle be banned across the country and opted for the establishment of ranches.

President Muhammadu Buhari, in February 2018, constituted the sub-committee on herdsmen/farmers clashes, led by Ebonyi State Governor Dave Umahi. The committee was, among others, mandated to unravel the causes of herdsmen/farmers clashes and to dialogue with relevant stakeholders on ways to end the killings of innocent citizens.

Members of the Northern Governors’ Forum, at a virtual meeting held on February 9, 2021, chaired by their Chairman and Governor of Plateau State, Simon Lalong, were unanimous that the “current system of herding conducted mainly through open grazing is no longer sustainable because of growing urbanization and the population of the country.” They agreed on other methods like ranching and urged other governors to consider their position.

As if taking a cue from the norther governors, all the 36 governors, at the virtual meeting of the Nigeria Governors’ Forum (NGF) held on February 11 2021 unanimously agreed to end nomadic and pastoral cattle wandering, to address the rising insecurity, the activities of herdsmen and the need for the country to develop modern systems of animal husbandry that will replace open, night and underage grazing in the country. They identified ranching as an alternative to open grazing.

Also, in February this year, Kano State Governor, Abdullahi Ganduje, at a meeting with President Buhari and other APC Governors, openly supported adopting anti-open grazing measures, arguing among others, that such a ban would not only solve incessant clashes between farmers and herders but also prevent cattle rustling.

Shortly after the 17 southern governors, on May 11, 2021, announced their resolution to ban open grazing, support for the decision came from the Arewa Consultative Forum (ACF) and later from the leading herders’ group – the Miyetti Allah Cattle Breeders Association of Nigeria (MACBAN).

ACF, in a statement issued on May 17, 2021, said it did not see any reason to object to a decision taken in the best interest of all.

Its Chairman, Audu Ogbeh was quoted as saying: “The fact of the matter is that the crisis emanates from the belief by most herdsmen that they are free to enter any farm, eat up the crops or kill anyone raising objections. Nobody or society can accept that.”

MACBAN, at a press briefing in Kaduna on May 20, 2021, by its National Patron, Senator Walid Jibrin, argued that any measure to modernise cattle rearing should be supported in view of the fact the open grazing was no longer sustainable in the face of present reality.

Jibrin, who is the Sarkin Fulani Nasarawa, noted that because of existing international concern on cattle rearing in Africa especially Nigeria, adding that there is an urgent need to evolve a better way of rearing cows.

“As a Fulani leader in Nigeria, I have a free mind on anyone recommending a ban on open grazing, free movement herders and cattle in Nigeria, because the practice is getting outdated internationally,” he said.

 

States with anti-open grazing laws

About seven states now have laws banning open grazing in the country despite the AGF’s position. Yet the AGF has not taken steps to challenge the laws made against open grazing by states like Ekiti, Taraba, Benue, Bayelsa, Abia, Ondo among others.

In Ekiti, there is the Prohibition of Cattle and other Ruminants Grazing Act 2016; in Taraba, there exists the Anti-Open Grazing Prohibition and Ranches Establishment Act 2017, while Benue has the Open Grazing Prohibition and Ranches Establishment Act 2017.

Bayelsa State has the Livestock Breeding and Marketing Regulation Law 2021; Abia State has worked on the Control of Nomadic Cattle Rearing and Prohibition of Grazing Routes/Reserve Law, while in Ondo, there exists Section 42(e) and (g) of the Ondo State Forestry Law, which prohibit cattle trespassing and cattle pasteurisation without the authority in writing of a prescribed government official. Other states are currently working on similar laws.

 

Legal interventions

Incidentally, the court has since 1969 pronounced on the constitutionally of the ban on open grazing. Justice Adewale Thompson, who was then of the Abeokuta (Ogun State) Division of the High Court, declared the practice of open grazing unlawful and banned it in a judgment delivered on April 17, 1969, in the suit marked: AB/26/66.

Justice Thomson held: ”I do not accept the contention of Defendants that a custom exists which imposes an obligation on the owner of a farm to fence his farm whilst the owner of cattle allows his cattle to wander like pests and cause damage.

“Such a custom, if it exists, is unreasonable and I hold that it is repugnant to natural justice, equity and good conscience and therefore unenforceable…in that it is highly unreasonable to impose the burden of fencing a farm on the farmer without the corresponding obligation on the cattle owner to fence in his cattle.

“Sequence to that, I ban open grazing for it is inimical to peace and tranquillity and the cattle owners must fence or ranch their animals for peace to reign in these communities.”

On May 20 this year, Justice Ijeoma Ojukwu of the Federal High Court in Abuja upheld the validity of the anti-open grazing law enacted by Benue State in a judgment on a suit by Matthew Tile Nyiutsa, in which he sought to compel President Buhari to instruct security agencies in the country to enforce the Benue State law.

Justice Ojukwu was of the view that the Benue anti-grazing law, having been validly made by the state’s House of Assembly, and having not been invalidated by any competent court, remains a valid law, which is enforceable by the state, using all legitimate law enforcement agencies.

Ojukwu held: “There is no contest that the Open Grazing Prohibition and Ranching Establishment Law 2017 was validly passed by the Benue State House of Assembly and that the law is still in force, especially as the law has not been struck down by any court of law or court of competent jurisdiction.

“The implementation, therefore, lies with the machinery of the state and law enforcement agencies like the police, whose duty is to maintain law and order and to secure lives and properties in accordance with Section Four of the Police Act.

“It behoves the people of Benue State and law enforcement agencies, task force, etcetera to employ all legitimate means to implement that law. It is not the duty of the defendant on record. It is only where there is an infraction of the provision of that law that the court may be invited to impose the prescribed sanctions. In so far as the President has not issued any Executive Order, which runs contrary to the said law, this court cannot hold him accountable.”

Incidentally, lawyers from the office of the AGF, who represented President Buhari (the sole defendant) in the case, did not query the validity of the law. They only questioned the propriety of the suit and the reliefs sought, which the court upheld on the grounds that not only was the suit wrongly constituted, it lacked the jurisdiction to adjudicate on the issues relating to whether or not the President abide by his oath of office.

 

Blow to FG’s RUGA initiative

As a measure to address farmers-herders conflict, the Federal Government, some years back, conceptualised the Rural Grazing Area (RUGA) policy, which allows the creation of settlements for herders in any part of the country. The policy, which did not enjoy popular support, was later challenged by the Benue State Government before the Federal High Court, Makurdi.

Delivering judgment on February 4, 2020, in the case filed in the name of the Attorney-General of Benue State against the AGF, Justice Mobolaji Olajuwon held that any move by the government to acquire land for RUGA or cattle colony in Benue State, without the permission of the state government, was null and void.

Justice Olajuwon, who cited many constitutional provisions such as sections 5(6), 9(2), 20, 44(1), 58 and 315(5) and 6(b), and sections 1, 2, 5, 6, 26, 28 and 49 of the Land Use Act, as well as sections 4, 5, 6, 7 and 19(c) of the Benue State anti-grazing law, granted an order nullifying every action of the government to establish RUGA or cattle colony.

 

How legal is the ban on open grazing?

Many law experts including Femi Falana (SAN), Mike Ozekhome (SAN) and Tunde Falola faulted Malami, arguing that it was wrong of him to seek to equate animal rights with human rights, arguing that open grazing of cattle has become hazardous to peaceful co-existence across the length and breadth of the country that there should be no legal squabbles on whether or not the practice should be scrapped because it belongs to a bygone era.

They noted that a governor of a state, by the provisions of sections 176 (1) and 214-216 of the Constitution, remains the Chief Executive and Chief Security Officer of that state, in addition to the provision of Section 1 of the Land Use Act, 1978 which vests all land in the territory of each state in the governor, to the extent that such land shall be held in trust and administered for the use and common benefit of all Nigerians, thereby making the governor the ultimate decider of the usage of the land in his state.

Falana added that the power to approve the physical planning of the land in every state was the exclusive responsibility of state governments, noting that forest reserves owned by state governments are equally regulated by laws enacted by the Houses of Assembly.

“Under such laws, it is stipulated that it is a criminal offence to occupy any part of such reserve without authorisation of the state government. By the combined effect of the Land Use Act, Regional Planning laws and Forest Laws applicable in all the states of the federation.

“Thus, pursuant to such laws the Federal Government has directed state governments to take charge of all the forests in all states. It is, therefore, grossly misleading to argue that herders have unquestionable power to graze their cattle on any land without the authorisation of the appropriate authorities.

“No doubt, every citizen is entitled to the fundamental right to freedom of movement and right to own and acquire land in any part of Nigeria by virtue of sections 41 and 43 of the Nigerian Constitution respectively. To that extent, herders, like other citizens, are at liberty to acquire land for cattle business under the Land Use Act.

“Those who are encouraging herders to reject modern animal husbandry are advised to learn from Botswana, South Africa, Mozambique, Kenya and Ethiopia that have effectively adopted ranching to end clashes between herders and farmers. In those countries, herders live on the ranches with family members including their children and wards who attend schools in the neighbourhood.”

On his part, Ozekhome argued that in deserving circumstances, the right to movement in Section 42 of the constitution can be overridden by Section 45 of the constitution which allows any law that is reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health.

He said: “Considering the incessant cases of Boko Haram killings, maiming, stealing, kidnappings, rape, armed banditry and robbery foisted on the southern part of the country, southern leaders have rightly taken it upon themselves to put in place laws and measures that will protect their citizens.

“To this end, it is safe to assert that individual rights to movement have not in any way been violated by the various states’ anti-grazing laws because the laws were enacted in the interest of public safety, public order, public defence and public morality.

“The laws of and declaration by the southern governors are also to protect the peace, privacy and homes of southerners as highlighted in section 37 of the 1999 Constitution. They are also for the purpose of protecting the rights and freedom of other persons.

“It must be emphasized that the decision of the southern governors does not in actuality impede the rights of cow rearers to own cattle. It merely limits their ability to openly graze on lands that are not theirs in the first place and inflict misery on the indigenous owners. The ban will also ignite more anti-grazing laws in other states in Nigeria.

“By banning open grazing, the governors are merely putting a stop to one of the greatest known sources of wars and terrorist convergence in their respective states. In my humble opinion, the governors’ call is part of their responsibilities to the people of their states as the main mandate of each and every governor is to protect the lives and property of the people of the states they govern.”

Falola argued that the position as argued by the AGF was misleading and devoid of any legal reasoning, contending that by being the AGF, Malami ought to see himself as the Chief Law officer of the federation and not Chief Law officer of any particular ethnic group.

“The Honourable Attorney-General has equally forgotten the fact that the freedom of movement he is talking about is not absolute under the same Constitution. Admittedly, Section 41 (1) of the 1999 Constitution provides that: ‘Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit therefrom.’

“The question is, did the southern governors ban movement of Fulani herdsmen from their regions? The answer is no.

“What the governments of these states banned was the movement of cattle from one place to another otherwise known as open grazing; the Attorney-General, with respect, missed this point.

“Again, all the fundamental rights guaranteed by the 1999 Constitution are not absolute; Section 45 (1)(a) & (b) of the same constitution provide exceptions.

It states: “Nothing in sections 37,38,39,40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society:

1. a) in the interest of defence, public safety, public order, public morality or public health, or

b ) for the purpose of protecting the rights and freedom of others.’

“Now, should these southern states decide to enact a law to ban open grazing in the interests of public safety within the regions or for the purpose of protecting the rights and freedoms of their people, particularly farmers, majority of whom are the victims of incessant attacks and kidnapping by the herdsmen, will our Attorney-General still contend that banning open grazing is unconstitutional? With due respect, the Attorney-General cannot be right.”

Olayemi Owoniseola secured bail for his client on his very first solo appearance in court. But the Kogi State University alumnus almost didn’t become a lawyer, but for his insistence and his parents’ backing against a school counsellor’s advice. Owoniseola shared his law story with ROBERT EGBE.

I am Owoniseola Olayemi Michael from Kabba Bunu Local Government Area (LGA) of Kogi State. I am a legal practitioner practising law at A.K Ajibade, SAN & Associates in the Kwara State capital, Ilorin.

Family

Both of my parents are from Kogi State and are happily married. My parents are blessed with six children and I am the last born of the family. Both of my parents are retired civil servants but still very active and not tired. I am the first lawyer in my family.

Time Prefect, drummer boy

I started my primary school education from Lower Niger River Basin Nursery and Primary School, Ilorin and later moved to Life’s Touch Children Nursery and Primary School where I got my First School Leaving Certificate. I proceeded to St. Anthony’s Secondary School, Ilorin but later finished my secondary education from Community Secondary School Ogele, Kwara State. During my primary school days, I was the time prefect of my school (Life’s Touch) and I remembered I usually woke up very early in the morning to prepare for school to be able to carry out my duty as the time prefect in school. I equally remember that I was one of the drummers of my school and I really enjoyed those days. Although it has been a long time now since I last drummed and I doubt if am still as good as before.

Studying at Kogi State University

I started my tertiary education at Kwara State Polytechnic where I did my Diploma in Law and finished with Upper Credit. I proceeded thereafter to Kogi State University to study Law as a step further in achieving my dreams of becoming a lawyer. Studying Law at Kogi State University was initially not easy for me because the system there was quite different from the system I left ( Kwara State Polytechnic), but within a little time, I was able to adapt to the system and I made the best out of it.

Placed in Science Class

Right from my childhood, I have always hated seeing people being cheated. Anytime I see anyone trying to cheat others around me, I always stand against them and fight for those that are about to be cheated or being cheated. Maybe God saw my pure spirit of fighting for the weak that was the reason why He made my journey of studying Law possible. The journey all started in my Junior Secondary School (JSS) Three when my school Counsellor at St. Anthony’s came to my class to educate us about the classes in Senior Secondary School (SSS) 1 and the professions we can find under those classes. She made us understand that if a student wants to study Law, such a student must go to Art Class and she also explained the works of lawyers and other professionals to us. Immediately I thought of studying Law in order to be able to fight for people, but, unfortunately for me, when our Junior WAEC (West African Examination Council) result came out I was placed in Science Class because of my good performance in the Junior WAEC. I went to the Counsellor to complain that I didn’t want Science Class, but she told me that if I didn’t want it, one of my parents would have to inform the school that they were in support of my decision or write a letter to the school to that effect. I informed my parents about it and, luckily for me, they supported my decision and my mum followed me to school to inform the Counsellor about it and I was changed to Art Class. That was how my journey of studying Law started.

Law School not difficult 

Law School was not difficult for me, although the Law School campus I was posted to was stressful. I attended the Lagos campus of the Law School and we usually started lectures at 8am and ended lectures at about 5 or 6pm. What I usually did after returning from lectures was to rest for one or two hours and pick my notes to read through and as well read the topic for the next day and it really helped me in Law School. I used most of my weekends to study the topics for the following week and then played around because just like the saying “All work without play makes Jack a dull boy.”

Called to Bar on birthday

My Call to Bar was a day to be always remembered. I was called on 30th November which was also my birthday. So I celebrated both my Call to Bar and birthday together with my family members and friends that followed me to Abuja.

Secured defendant’s bail on first solo court appearance

My first appearance in court was during my service year in Bauchi. I remembered my Principal sent me to the Magistrate’s Court to apply for the bail of the accused person my office was representing. I went to the court prepared, moved the bail application and the same was granted.

Law School grading system needs modification

I think something really needs to be done about the Law School grading system because, for me, the grading system is not good enough. My advice to students who have complaints about the grading system is to channel their complaint to the appropriate authorities.

No reason to scrap wig, gown

Many professions have their dress code; wig and gown are lawyers’ dress code in court. So, I don’t see any reason why it should be scrapped.

SAN, Professor or Judge?

Don’t be surprised to see me become a Senior Advocate of Nigeria (SAN), Professor and later a Judge of a superior court. We have Judges who are Professors.

What I would change about justice administration

The practice of holding charge should be looked into. Any offence a Magistrate cannot try, such Magistrate such not be able to hold charge or remand.

Secondly, the Directorate of Public Prosecution (DPP)’s advice is also something to be looked into as it usually takes time before it is out. So, I think it is high time we had a law that will stipulate a time for the DPP’s advice.

JUSUN strike

The Judiciary Staff Union of Nigeria (JUSUN) is fighting a just cause. My advice is for governors to obey the rule of law by complying with the constitutional provision for judicial financial autonomy.

The mass trial of over 5,000 Boko Haram suspects in 2017 and 2018, at the Special Anti-terrorism Prosecution Court, was plagued by weak investigations, arbitrary arrests, unlawful detention and the absence of legal aid and evidence. Yet the Federal Government is planning to revive the court for the over 400 suspected Boko Haram sponsors. Stakeholders warn that unless the mistakes of the past are fixed, the plan may become a pipedream, writes ROBERT EGBE.

 

Mechanics Taye and Kehinde Hamza must have thought it was a routine job when a man drove his vehicle to their workshop in Bauchi State in 2010 and asked that they serviced it.

The identical twins from Oyo State negotiated their fee, worked on the car, and the satisfied customer drove off after paying them.

Some days later, operatives of the State Security Service (SSS), stormed their shop and arrested the brothers; it turned out the vehicle belonged to a Boko Haram member.

The Hamzas, from Oyo State, were among the 473 persons cleared eight years later of any terrorism-related offence during a trial of over 5,000 terrorism suspects.

The process through which they secured their freedom was the 2017/2018 mass trials by the Federal Government of Boko Haram suspects.

Attorney-General of the Federation (AGF), Abubakar Malami, announced last Thursday that the Ministry of Justice would reconstitute the Special Terrorism Prosecution court to arraign 400 suspected Boko Haram financiers and other terror suspects.

His statement followed another one announced last February that 5,000 Boko Haram members captured in Borno State would be tried via the same arrangement.

The 400 suspects were said to have been arrested in Kano, Borno, Abuja, Lagos, Sokoto, Adamawa, Kaduna and Zamfara.

The operation, coordinated by the Defence Intelligence Agency (DIA), the Department of State Services (DSS), Nigerian Financial Intelligence Unit (NFIU) and the Central Bank of Nigeria (CBN), was said to have been approved by President Muhammadu Buhari in 2020.

A list of 957 suspects which comprises bureau de change (BDC) operators, gold miners and sellers, and other business persons is still being acted on.

Malami, in a statement by his spokesperson Dr. Umar Gwandu, said criminal charges bordering on terrorism were being prepared against the suspects while investigation continues.

Although he declined to give further details, he said the prosecution of the suspects “will commence as quickly as possible”.

But all courts across the country have been shut since April 6 owing to the nationwide strike by the Judiciary Staff Union of Nigeria (JUSUN) over financial autonomy for the judiciary.

Who are Boko Haram’s financiers?

Some of Boko Haram’s funds are easily traceable to criminal activity including kidnappings and bank robberies. The group has also been reported to sometimes impose “taxes” on the local population where it is entrenched and to also be involved in trading, especially in the Lake Chad Basin.

Dubai convictions

Convictions outside the country have also provided a clue on how Boko Haram receives funds.

In April 2019, six Nigerians – one of whom was said to be a Nigerian government official – were jailed in the United Arab Emirates (UAE) for allegedly funding Boko Haram.

They were said to have transferred up to $800,000 in favour of Boko Haram between 2015 and 2016.

The UAE Federal Court of Appeals, which sits in Abu Dhabi, sentenced Surajo Abubakar Muhammad and Saleh Yusuf Adamu to life imprisonment followed by deportation.

Ibrahim Ali Alhassan, AbdurRahman Ado Musa, Bashir Ali Yusuf and Muhammad Ibrahim Isa, — the four others — were each sentenced to 10 years in prison, and also followed by deportation.

The court found them guilty of setting up a Boko Haram cell in the UAE to raise funds and material assistance for the insurgents in Nigeria.

In December 2019, a UAE Federal Supreme Court upheld the court’s ruling.

Raid on Bureau De Change operators

The Federal Government last March 30 gave further details of the alleged involvement of the 400 in terrorism. It said it had arrested some Bureau De Change operators who were facilitating transfer of money to Boko Haram terrorists.

Senior Special Assistant to the President on Media and Publicity, Mallam Garba Shehu, said some Nigerians transferring money to the sect from the United Arab Emirates (UAE) were working with the BDC operators.

“Bureaus de change are facilitating money to terrorists. We have already worked with the UAE. Convictions have been achieved of Nigerians who are transferring money to Boko Haram terrorists and this also happens domestically. And I tell you that by the time we finish this investigation, the shocking details will surprise many Nigerians,” Shehu said during a TV programme.

Shehu did not disclose the identities of the individuals.

Flaws of the 2017-2018 mass trials

The three phases of the 2017/2018 mass trials conducted by the AGF opened in October 2017 at the Federal High Court sitting at Wawa Cantonment in Kainji, Niger State, for the more than 6,600 people, accused of being members of Boko Haram.

Four judges presided over four courts in the military facility.

Most defendants at the time were charged solely with providing material and non-violent support to Boko Haram, such as repairing vehicles, giving members food, or washing their clothes.

Rights groups and other stakeholders, who monitored the proceedings, said it exposed major shortcomings of the government’s ability to conduct free and fair trials for all defendants.

The International Criminal Court (ICC), for instance, released a statement before the trials began, voicing its concern over the organisation of the trials and whether it could provide all defendants with effective legal counsel and a fair trial.

Media and civil rights groups were barred from attending the first phase of the trials. The two subsequent phases allowed for a small number of non-governmental groups and media outfits to attend.

“The proceedings were very short, with some lasting less than 15 minutes, raising several fair trial and due process concerns. Most charges were couched in ambiguous and vague terms without the crucial information Nigerian law requires, like the specific date, place, and details of the alleged offence.

“Other procedural lapses included a lack of official interpreters and the use of untrained unofficial interpreters; reliance on alleged confessions; charging previously discharged defendants again for the same offences; and unclear orders for rehabilitation for some defendants whose releases were ordered,” Human Rights Watch said in its September 2018 report, Nigeria: Flawed trials of Boko Haram Suspects.

All suspects had public defenders, but some defendants told Human Rights Watch that they were unable to consult with their lawyers until the day of trial.

A 28-year-old woman charged with concealing information, providing support, and knowingly aiding and abetting the kidnap of children by Boko Haram told Human Rights Watch that she had not been allowed to contact any member of her family to prepare a defence since she was arrested in Kaduna in 2013. She was found guilty and sentenced to time already spent in detention.

“Some suspects were tried individually, but others were tried in groups, in some cases without consideration of whether they had been coerced into committing the offence for which they were being tried or had done it simply to survive,” the report said.

Funds to prosecute the trials

One key issue that might affect the trial is funding. Where will the funds to prosecute the defendants come from?

Last November 9, the Federal Ministry of Justice proposed N2 billion to cover its legal services for the 2021 fiscal year.

The legal services include civil litigation, prison decongestion, trial and prosecution of Boko Haram criminals, administration of criminal justice system and payment for international legal obligations.

Solicitor-General of the Federation, Dayo Apata, said of the N2b, about N350 million was budgeted for the trial and prosecution of Boko Haram criminals

Apata spoke during his appearance before the Senate Committee on Judiciary, Legal and Human Rights matters, to defend the ministry’s 2021 budget proposal.

No to secret trials

One of those opposing secret trial for the Bureau De Change (BDC) operators is the Chairman, Senate Committee on Army, Senator Ali Ndume.

Ndume, last April 26, urged the Federal Government to expose the identities of all the BDC operators so far arrested and try them in public.

He said: “The Presidency said recently that Nigerians would be shocked if it revealed the identities of those who are sponsoring the Boko Haram insurgents. Can you imagine that 400 Bureau De Change operators are the people funding the Boko Haram? When the BDC operators are arrested now, what will the government do with them? The presidency is already saying their case is confidential. What is confidential about it?

“The Presidency should expose the identities of all the BDC operators so far arrested and carry out their trial in public. If any of them is innocent, he should be allowed to go while those found guilty must be made to face the music.

“When I was wrongly accused, I was tried publicly and I was vindicated. The trial lasted six years in an open court. If there is any criminal act linked to anybody, no matter how highly placed, let the evidence be placed before the public, there should be no secret trial.”

Special Terrorism Prosecution Court is good, but…

Activist-lawyer Inibehe Effiong backed the government’s decision, noting that regular courts, which have been under lock and key following the judiciary workers’ strike, are overstretched.

“For me, the position of the Attorney-General of the Federation is a welcome development because the judiciary is already overstretched,” Effiong said in a TV programme, “we may not be able to do that successfully (in regular trials.

“…if you have to try them in the regular courts we will have issues of delay because those courts are already overwhelmed with hundreds and thousands of other cases both civil and criminal. So the judges will have difficulty decongesting their dockets of the cases they have to attend to.

“But with the special courts, those judges will be able to devote attention to cases of Boko Haram and also see that justice is done to individual cases.”

Nevertheless, Effiong also raised some concerns that he felt the government must address for the trial at the Special Terrorism Prosecution Court to be effective.

He said: “But there are concerns about this court. Will it be open? Will there be publicity of trial? Will victims of terror be able to monitor these trials? What is the level of access, what is the manpower that is available for these cases to proceed?

“We saw that in 2017 and 2018 when mass trials were conducted for Boko Haram suspects, there were issues of administrative lapses when files of some of the suspects could not be found and mostly the prosecution relied on confessions. And we could see that proper investigations were not done in most of the cases. So, if we have a special court, the advantage is that these issues would be localised within that court, and the judge would have a clearer frame of mind to attend to the cases.

“By and large, I believe the advantages should outweigh the disadvantages provided the government adheres to the rules.”

 

After reading up the remarkable story of the late human rights activist, Chief Gani Fawehinmi SAN, Paul Gbande’s heart was fixed on Law. But his parents’ death meant he was in for a bumpy ride. Gbande, a 2015 alumnus of the University of Jos (UNIJOS) tells ROBERT EGBE how he overcame lack of school fees, books, a suit, wig and gown to become his family’s first lawyer.

My name is Paul Terve Gbande. I am from Logo Local Government Area (LGA) of Benue State. I am the pioneer Chairman of the Nigerian Bar Association (NBA) Young Lawyers’ Forum, Katsina State; immediate past Socials Secretary, NBA Katsina Branch and Public Relations Officer, Arewa Young Lawyers’ Forum. My father’s name is Robert Achagh Gbande; my mother’s name is Angelina Gbande. I’m from a family of five siblings; I came in third with my twin sister. She studied Mass Communications at Ahmadu Bello University (ABU). My father was an automobile technician at AG Leventis. My mum was the Principal Head Nursing Officer at St Gerald Catholic Hospital and State Coordinator Justice and Peace Development under the Archdiocese of Kaduna. They are both late. My mom died in 1999 when I was moving to primary five and my dad died in 2011 when I was in 200 level. That was after he retired. Things went bad for him in the course of his ailment, so, that affected the family’s finances.

Best student 

I attended Victory Academy Nursery and Primary School, Kakuri, Kaduna. I also attended Excel Universal College, Kakuri and Heyik International School, Kakuri, Kaduna. At secondary school, I was the best graduating student in English Language, Government, Literature-in-English and the most punctual student, among several other awards.

I wanted to be like Gani, Dele Giwa

What inspired me to study Law was the life of the late legal icon Chief Gani Fawehinmi, SAN. I started buying and reading newspapers when I finished secondary school. So, I used to see a column on Law and I got to read a lot about his public engagements in terms of advocating for the masses, the less privileged, and also confronting the government about certain policies it made at the time that were detrimental to the overall wellbeing of the state. So, I just wanted to be like him; he really motivated me. I have always been one who would not sleep and watch injustice happen around me. I was always confrontational with the authorities; if things were not right, I would speak up. So, when I saw that about him, I was motivated and wanted to be like him.

My next course of interest was journalism. It was the next thing I wanted, although I wanted to study the English Language and then delve into journalism full time. That was because of the life of the late Dele Giwa. I read a couple of books on his reportage and investigative journalism, how he had cause to deal with the military administration of the time and what led to his death. So, I was really motivated, I loved people who made it a point of duty to inform members of society.

Problem at UNIJOS

I attended the University of Jos (UNIJOS), graduated in 2015. Studying Law was interesting, exciting. I was more or less a self-taught student, not someone who sits and listens to lecturers teach. I spent most of my time studying in the hostel or library at the UNIJOS permanent site. I was a voracious reader. At the time UNIJOS had challenges in terms of faculty leadership. We were not really shown our grades. If you passed all your courses, they just wrote ‘pass’ instead of giving or showing you your specific grades. We complained and we were asked to see the level coordinator. But he was not forthcoming in terms of showing us our grades. It was a regular occurrence for many students at the time. So, students were not able to keep abreast of their performances. That was a challenge. We were not challenged to give our best until we got to 400 level when Prof C.J. Dakas, SAN, became Dean, Faculty of Law and mandated lecturers to reveal the grades to students. A lot of us were alarmed when we found that things were not working like we wanted them to. I had to buckle up.

Some of my memorable experiences were as a student unionist and a NANS (National Association of Nigerian Students) comrade. I was neck-deep in student politics on campus. It made one an all-around student. We were inspired politically in terms of leadership. We learnt the art of public speaking, negotiation with the school authority in terms of tuition fees, etc.

In school, I was editor-in-chief at the faculty of law and in the course of that, I was able to get a penny here and there conducting interviews to assist me through school. My sisters too – I’m the only son – were also on hand with the little they had to assist me.

How friend turned brother, mom saved me at Law School

The Law School was more difficult than I had expected. Of course, I had been informed that it was going to be demanding academically and otherwise. I had always been a voracious reader, but when I got there, I was an indigent student; getting the Law School fees was a big challenge. I raised my fees through my bosom friend’s mother. His name was Samuel Abaya. We were first roommates, then bosom friends, then brothers. His mom assisted me tremendously when she learnt that I was an orphan. Most of the fees were raised by his family; his mother specifically and then his sister. His mom played a key role. She had never met me before, but when she heard my story and found out I had a passion for Law – because before then I used to go to Benue State to visit the family. I got attached with a lawyer, so I was always going to court with the lawyer and she saw the zeal. When it was time to return to school, the lawyer would not give me a dime. She saw the zeal, and then during the next school break, I would again travel from Jos to Benue to find opportunities to work with lawyers and prepare myself. So, I kept doing that consistently and she saw the zeal in me, a young man having zeal and people around not willing to help and all that, she went all out to help me. My sisters too assisted with what they had.

Reading borrowed books while owners slept

Studying was quite difficult. Getting books was a problem, Imagine going to Law School without a laptop; you’re ill-prepared for everything and then without a suit. But my mates then would tell you that Paul could read for several hours. Sometimes they would all be asleep and I would still be there reading. I would borrow their books to read. Until later I was able to get money here, there, and I got some books to shore up what I had. But it wasn’t funny.

No wig, gown for call to Bar

To get the wig and gown for my call to Bar, I had prepared myself to travel to Nasarawa State to meet one of my friends who had been called to Bar a year before me. I had planned to borrow his wig and gown. But I exhausted my money on preparation for the call to Bar registration etc. So I asked my friend, Abel Olutekunbi to find me some money to travel to Nasarawa. But he spoke to a friend who was surprised that I could not get them. That’s how he got the money for me and I got the wig and gown. If that was my financial situation, then celebrating my call to Bar was completely ruled out. My elder sister came around and after the call to Bar, I ensured she returned home. There was no party anywhere and I ended up taking pap and beans cake at a nearby joint in Abuja. But I was happy that the future was brighter and there were certain dreams I could achieve on my own.

First solo court appearance

My first solo court appearance was a month after my call to Bar. It was through one of the lawyers, P. D. Adi, whose law firm I used to visit while at the university. He introduced me to a friend of his, and that friend, a senior lawyer, wanted a junior to hold his brief that day at a high court. So, when we met the lawyer, he wanted someone who was at least two years post-call to hold his brief. I very much wanted to appear alone, so I told him I was called a year before. I wanted it badly, to showcase what I had. So, he gave me the brief with a warning that I should ensure that I did not mess up his case like other lawyers that he tested in the past had done. I went to the court that day and was able to get a cost of N5,000 in our favour against a senior. When I came back, the lawyer was highly impressed. That was the turning point for me.

Encounter with a rude judge 

One of my most interesting experiences in court was with a judge of the High Court of Katsina State in the course of my National Youth Service Corps (NYSC) programme. That’s what brought me to Katsina and I’ve been here ever since. The judge and a senior lawyer were having issues. The lawyer had a fundamental rights suit before the judge and he asked me to go and hold brief for him. The lawyer asked me to give the court reasons why he was unable to attend court. When I informed the judge, he bluntly told me to my face, in everyone’s presence in the gallery, that I was a liar. When he said that, I was already accustomed to such situations. As a unionist, you meet elderly people and you hear them say stuff. But I looked at him straight in the eyes and said, “With the greatest respect, I’m not lying.” I found it really difficult to understand why he would say I was lying in the first place. Finally, I proceeded with the case till the end and he dismissed our application. But the client appealed the judgment and won; the judgement was set aside. The Court of Appeal ordered a retrial. Obviously, that judge dismissed our case based on sentiments. He felt that the senior lawyer sent me because he was avoiding him.

In this article, Ahuraka Yusuf Isah identifies some inadequacies in key constitutional provisions in relation to salary and budget for the judiciary, and called on the National Assembly to urgently effect the necessary amendments.

If there is any matter so loosely and ambiguously legislated upon in the 1999 Constitution (as amended), it is not other than sources and payment of judges’ salary.

Just as William Shakespeare has rightly observed in “The Merchant of Venice’’, that “The devil can cite Scripture for his purpose’’; both the Federal Government and state governors are citing various and inconsistent provisions of the Constitution to justify their positions on Judicial autonomy.

By the provision of Paragraph 21 (e) of Part One of the Third Schedule to the 1999 Constitution of the Federal Republic of Nigeria, the National Judicial Council has power to ‘collect, control and disburse all monies, Capital and Recurrent, for the Judiciary’.

Here the Constitution failed to mention source of the funds, whether Federal or State. This provision does not distinguish between superior or lower courts. This has left so much hanging because if this is so, it implies that by virtue of this provision, all Judiciary expenditure, whether capital or recurrent, whether superior or lower courts, should be disbursed to all heads of the courts by the NJC, which has not been in practice.

A cursory glance shows that Section 6 of the Constitution provides for the Judiciary; Section 6(5)(a-i) lists the Superior Courts of Record, while Section 6(5)(j-k) mentions the other courts authorised by law to exercise jurisdiction on matters which NASS and State Houses of Assembly respectively, can make laws. By implication, courts like the Magistrates’ Court, District Court, Area Customary Court, and the Sharia Court are the other courts authorised by law to exercise jurisdiction on which the various State Houses of Assembly can make laws, and therefore, fall within the purview of Section 6(5)(j-k). Section 6(5)(a-k) of the Constitution can therefore, be translated to mean that the superior and lower courts constitute the Judiciary, and a community reading of Sections 6(5)(a-k) and 81(3)(c) means that any amount standing to the credit of the Judiciary in the Consolidated Revenue Fund of the Federation, shall be paid to the National Judicial Council (NJC) to be disbursed to the heads of the courts. See also Section 162(9) of the Constitution which also provides for the payment of any amount standing to the credit of the Judiciary in the Federation Account to the NJC, for disbursement to the heads of the courts.

In other words, the provisions seem to mean that the Consolidated Revenue Fund of the Federation is responsible for the funding of all the courts (Judiciary), though the type of funding is not stated therein.

President Muhammadu Buhari on June 8, 2018 assented to Four Acts amending the 1999 Constitution (as amended), including Constitution (4th Alteration) Act, No. 4; which is now the Section 121(3) of the Constitution.

Section 121(3) is amended by providing for direct funding of the Judiciary in the states directly from the Consolidated Revenue fund of each state by paying directly to the head of the courts concerned. Ostensibly, it was to formally grant financial autonomy to the Judiciary in all the states of the Federation.

But Section 121(3)(b) only states that any amount standing to the credit of the Judiciary in the Consolidated Revenue Fund of the State should be paid directly to the heads of the courts, with no mention of the NJC or the type of expenditure. There is no provision that they shall be paid as a first line charge.

On May 20, 2020 President Buhari signed the Executive Order No 10 to give effect to the provisions of the 1999 Constitution as altered by the 4th Alteration Act, No.4 of 2017 which guarantees financial autonomy for the judiciary and the legislature at the state level.

But by September 29, 2020, the 36 states of the federation filed a suit before the Supreme Court to challenge the Executive Order No. 10.

The 36 state governors  averred that the Order violates the provisions of sections 6 and 81(3), and item 21(e) of the Third Schedule to the 1999 Constitution, which they maintained obligated the Federal Government with the “responsibility for funding all capital and recurrent expenditures of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the states of the Federation of Nigeria, being courts created under Section 6 of the Constitution of the Federal Republic of Nigeria.”

Section 81(3) of the Nigerian Constitution, 1999 states that, “Any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the Federation shall be paid directly to the National Judicial Council for disbursement to the heads of the courts established for the Federation and the state under section 6 of this constitution.”

However, according to Onikkepo Braithwaite of the ‘‘Thisday Lawyer pullout’’, ‘’contrary to or a further qualification of Section 81(3)(c), Section 84(2), (4) & (7) of the Constitution lists those entitled to remuneration, salaries, and allowances in the Judiciary charged upon the Consolidated Fund of the Federation, thereby excluding judicial officers of the lower courts, and limiting those entitled inter alia, to judicial officers of the superior courts and the recurrent expenditure of their judicial offices, that is, the cost of running the courts. The staff of the superior State courts are support staff, part of the cost of running these courts. Do their salaries form part of the recurrent expenditure referred to in Section 84(7), though they are listed as members of staff in the public service of their respective States in Section 318 of the Constitution?

‘’Does this mean that the State Governments are the ones responsible for the capital expenditure of their State superior courts and all the expenditure of the lower courts, whether salaries, remuneration and allowances, capital or recurrent as per the provisions of Section 121(3)(b) of the Constitution, to be funded from the Consolidated Revenue Fund of the various States, and paid directly to the heads of those courts? The foregoing constitutional provisions, are not clear on this’’, she stated.

Braithwaite submitted that the judgement delivered in Suit No. FHC/ABJ/CS/667/13 JUSUN v NJC, AGF & 70 Ors on 13/1/2014 per A.F.A. Ademola J. is simply bringing up of Sections 81(3)(c) and 121(3)(b) of the Constitution, and does not address or resolve the controversy and inconsistencies created by the constitutional provisions stated so far.

‘’But, it is obvious that the provisions of the Constitution leave us with several inconsistent scenarios on the funding of the Judiciary, and it would be unfair to lay all the blame for the lack of judicial autonomy because of the lack of financial independence, solely on the Governors; the Federal Government (having not fulfilled all its obligations as well) and the inconsistent provisions of the Constitution, are also culpable.

‘’From a community reading of all the above-mentioned provisions, it may be safe to conclude for now, that it is clear that the salaries, remuneration, and allowances of the judicial officers of the superior courts and the JUSUN Staff manning these courts, and all their other recurrent expenditure, should be paid from the Consolidated Revenue Fund of the Federation through the NJC to the heads of the courts. For the lower courts, it is implied that they are the ones who fit into Section 121(3)(b), since they are excluded from Section 84(4) of the Constitution, and the State Governments should fund them completely – pay the judicial officers, their JUSUN Staff, all their capital and other recurrent expenditure.

‘’The bottom line is that, it is a foregone conclusion that the Constitution must be amended to achieve clarity and uniformity, as far as the funding of the Judiciary is concerned. In the case of Danstarcher Turnkey Contractors Ltd v UBN Plc (2015) LPELR-24631(CA), the Court of Appeal held that the rule of interpretation of statutory provisions should always be construed as a whole, and should be given an interpretation consistent with the object of the entire statute. Sadly, the object of the provisions of the Constitution with regard to the Judiciary and its funding, are somewhat hazy. The matter of the centralisation of payments even to Superior State Courts on one hand, and the clamour for restructuring and devolution of powers on the other hand, are at variance’’, Braithwaite held.

 

• Allocate 5% of Total Budget to Judiciary

For the past four years, the same amount of N110 billion was budgeted yearly to the judiciary despite an increase from N9.12 trillion in 2018, N8.92 trillion in 2019, ¦ 10.59 trillion in 2020 to N13.08 trillion in 2021

It would be recalled that the 2010 allocation of N95b to the Judiciary represented 2.2% of that year’s budget, in 2011, 2012, 2013, 2014 and 2015, the nation’s budget shares for the Judiciary were N85b (1.8%) N75b (1.7%), N67b (1.3%), N68b (1.3%) and N73b (1.6%) respectively.  The N70 billion budgeted for the Judiciary in 2016 (out of the N6.08 trillion total proposals) is 1.1%.

The lawmakers can also confirm that the 2018, 2019, 2020 and 2021 budgeted figures for the judiciary have declined to below 1.0% respectively. For instance, N110 billion approved for the judiciary for the 2021 fiscal year out of a total budget of N13.08 trillion is 0.84%. In other words, while the nation’s total budget increases that of the third arm of government witnesses decline.

It has become necessary for you lawmakers to review the constitution and mandatorily provide that judiciary budget must not fall below 5% of the total annual budget of the country, and so also in the states.

Of course, judiciary at a time in this country was allocated with N150 billion budget for a year when the total budget of the country was far below a quarter of what it is today, and one wonders what has happened.

• Ahuraka is the Senior Special Assistant (Media) to the Chief Justice of Nigeria (CJN.