The Nation Newspaper

Category: Law

  • Lawyer jailed nine years for impersonation

    Lawyer jailed nine years for impersonation

    The wife of a fake lawyer,  Olayinka Soyinka, wept profusely as an Ikorodu magistrate court sitting in Ijede  sentenced her husband, Olayinka, to nine years, six months imprisonment for impersonation.

    Soyinka (34) was arraigned on a five count charge bordering on falsely presenting himself as a lawyer, stealing and forging of court documents before Magistrate R.O. Davies by the Police prosecutors, Aminu Isaac and Etim Ufoh Ikechukwu on February 16.

    The matter was later taken over by a prosecuting team of the Nigerian Bar Association (NBA), Ikorodu Branch led by Prince Adetayo Ladega. Others are Mr Nurudeen Ogbara, Dapo Akodu, Mr Temitayo Sammy, Mrs Odunola Jegede, Mrs M.I. Akanbi Salisu, Mr Ezekiel Ogbaide and Prince O.S.A. Aranmolaran.

    The convict had in the course of trial changed his not guilty plea to guilty consequent upon which Magistrate Davies pronounced a total of nine and half years imprisonment on him.

    Magistrate Davies sentenced the convict to six months imprisonment on the first count and three years each on counts 3, 4 and 5.

    The convict would, however, spend three years in prison as the magistrate said the sentences would run concurrently.

    Earlier, in his allocutus, Soyinka, through his lawyers, Shakiru Omolaja and Opeyemi Omoboye, had pleaded for mercy of the court, stressing that the convict has repented as evident in his plea and that since he is still young, first offender who can still  be useful to the society.

    But the trial magistrate said it would be unfair to sacrifice justice on the altar of sympathy emphasising that the matter would be decided on facts, issues and evidence before the court.

    He held that it would be wrong to allow sympathy to becloud the essence of justice, truth and fairness.

    Magistrates Davies pointed out that the convict by “his statement before the court is a graduate and should know the consequences of his offence. So, this is a self inflicted injury”.

    Lead prosecuting team of NBA Ikorodu branch, Prince Ladega thanked the court and promised that the bar would take step to preserve the legal profession as directed by the court.

    Olajide was arrested February 14 while plying his trade with an unsuspecting client, Nwokeyi Lukman and subsequently arraigned two days after.

    In the charge read before the court on arraignment, Police prosecutor, Inspector Etrimudor Ikechukwu who stood in for Inspector Isaac Aminu, alleged that the defendant obtained the sum of N550,000.00 from Nwokeyi Lukman with intent to procure court dissolution of marriage document which he knew was false.

    He was alleged to have forged a document of marriage dissolution from high court of Lagos State in suit number LD/193HD/2015 and falsely presented himself as a lawyer with intent to defraud his victim.

    The offences committed were said to be contrary to and punishable under sections 285, 312, 363(1), 378(1) and 401of the Criminal Laws of Lagos state 2011.

  • Lawyers advocate adherence to rule of law

    Lawyers advocate adherence to rule of law

    Lawyers  have vowed to stand by the masses in ensuring the government respects the rule of law.

    According to them, there will be no sustainable development where the authorities do not obey the laws of the land.

    Participants at this year’s Annual Law Week of the Nigerian Bar Association (NBA), Owerri Branch,  upholding the rule of law would  enhance  justice and peace, in which development can thrive.

    The weeklong event was held in Owerri, Imo State capital.

    The keynote speaker, Mr. Peter Eze, examined the concepts  of the rule of  law and sustainable development in a paper entitled: Rule of law and sustainable development in Nigeria: whither the Bar and the judiciary.

    According to him, unless the judiciary and the Bar play their respective roles in maintaining justice in society, there is a serious risk that a culture of impunity would take root, thereby widening the gap between the citizens and the government.

    “If people encounter problems in securing justice for themselves, they may be driven to self-help resulting in further deterioration in administration of justice and possibly new outbreak of violence that threatens sustainable development,” Eze said.

    Speaking on the rule of law in a receding economy, Chairman, National Population Commission (NPC), Eze Duruiheoma (SAN), said nothing should be allowed to stand on the way of the rule of law.

    “It is a sacred duty which lawyers have to ensure that the rule of law remains alive at all times.

    “How, then, can we ensure that those persons deserving of our services and who cannot afford the same because of the economic situation, get them?

    “While the provision of pro-bono services is a way out, it does not completely address the problem.

    “In pro bono services, the lawyer undertakes the performances of his duties on behalf of an impecunious client entirely on gratis.  There is no obligation on the client who receives pro bono services to pay for same even in future.

    “We must accept fact that not every lawyer can afford to render pro bono services as defined above. However, some lawyers may accept a situation where their fees and other out of pocket expenses are paid at the conclusion of the case.

    “In that case, the lawyer is prepared to accept a situation where his fees and other entitlements are contingent upon a successful conclusion of the case.”

    He called for a law to enable lawyers vigorously defend the interests of citizens who are unable for financial reasons to fight for their rights. That way, the rule of law will be the ultimate beneficiary, he said.

    Duruiheoma said corruption is inimical to the rule of law.

    “Those government and court officials  who are unable to resist the negative effects of recession and who as a result constitute clogs in the wheel of the rule of law should quit their positions or be shown the way out. There is absolutely no excuse for corruption because it corrodes the entire society.

    “In other words, our own recession will end one day. While we pray for that day to come quick, we must for now, protect ourselves and our core values,  particularly the principle of the rule of law from its unfriendly effects. That is the task before us now,” Duruiheoma said.

    Speaking on Depreciation of the Naira and its effect on sustainable democracy: some legal considerations, Mr. Onyema Otitodiri said government should reinvigorate the productive sectors.

    “No matter how inconsequential, the production of goods should be encouraged.  Even the production of tooth-picks, teaspoon, tissue paper, locally sewed clothes, and so on can generate employment and reduce imports.

    “Socially, it is high time we understood that Nigerians have low taste for domestic products thereby affecting demand, profitability and sustainability of local industries.  This dangerous habit cannot reduce imports to strengthen the Naira.

    “Therefore, this should be corrected through proper national orientation.  Alternatively, heavy custom duties should be imposed on the undesirable goods.

    “Legally, the government can reinvigorate the economy by strengthening the legal frameworks and institutions that will ensure sustainability of the nation’s democracy.

    “Thus, government must conduct their activities within a framework of defined rules and regulations and disputes involving the legality or illegality of government actions must be decided by the courts independent of governmental interference,” he said.

    Otitodiri said there was the need to amend  Chapter two of the 1999 Constitution to make the bulk of rights contained in it justiciable.

    “It is suggested that even if Nigeria is not fully ready to enforce, the economic, social and cultural rights dealing mostly with the Fundamental Rights and Directives Principles of State Policy, the government should at least be sued for its inability to remove the obstacles to the full realisation of this rights.

    “If people encounter problems in securing justice for themselves obviously in view of the present economic hardship, they may be driven to self-help resulting in threat to sustainable democracy.

    “Lawyers should rise up to the occasion in fighting impunities in government.  This simply translates that judicial activism should be encouraged in all ramifications.

    “This is more so because the last hope of common man in Nigeria and in any other nation, is in the courts of the land which are the temple of justice,” Otitodiri said

    The branch chairman, Mr. Lawrence Nwakaeti, said lawyers must align ourselves with the suffering masses.

    ‘This must however not be misunderstood to mean that we are fighting the government, far from it. Our jobs are complementary and therefore aimed towards building a free fair and just society for all,” Nwakaeti stated.

    The week-long event ended on Friday night with an annual law dinner chaired by a former Chief Judge of  Imo  State, Justice B. A. Njemanze.

    Also in attendance were former Imo Chief Judge, Justice P. C. Onumajulu, Imo State Commissioner of Police, Mr. Taiwo Lakanu and Chief Arthur Obi Okafor (SAN), who were honoured at the dinner for their contributions to  development.

  • Shell loses bid to stop lawmakers’ summons

    Justice Binta Murtala-Nyako of the Federal High Court in Abuja has dismissed a suit filed by Shell Nigeria Exploration and Production Company Limited (SNEPCO) seeking to stop the House of Representatives from conducting investigative hearing on a petition.

    The judge held that the House has the power under Section 88 of the 1999 Constitution to look into the petition sent to it as it relates to the application of an Act of National Assembly.

    The court also agreed with the Speaker and the House that the suit as constituted was inchoate and premature and that Shell should appear before the House and answer questions arising from the petition by a non-governmental organisation (NGO).

    Justice Nyako said what the House extended to Shell was just an invitation and that it was within its powers to do so.

    According to her, it was only if in the course of responding to the petition, the House delves into the way and manner Shell runs its affairs that it could be said that the House was going beyond its limits.

    The Court consequently dismissed the suit with no order as to costs.

    Shell was accused in the petition of breaching the provisions of Nigerian Oil and Gas Industry Content Development Act in the award of contract for the provision of Marine Patrol Vessels in Rivers State.

    In its originating summons filed last May 4 by its counsel, Chief Dafe Akpedeye (SAN), Shell prayed the court to determine whether, from the combined construction of sections 88 and 89 of the 1999 Constitution (as amended) the House or its Committee is vested with constitutional powers to investigate the petition which touched on the conduct of its private business as a private entity.

    Shell also sought orders of perpetual injunction restraining the Speaker and the House from acting through any committee from commencing or continuing with the investigative hearing of the petition from the Youth Coalition for Change.

    The NGO accused Shell of alleged denial of invitation to indigenous contractors to tender for Shell’s contract for procurement of Marine Patrol Vessels.

    Shell also sought for an injunction restraining the Speaker, the House and its committees from issuing or further issuing any summons or invitation to any of its agent, staff or directors to appear before it in connection to an investigative hearing of the petition.

    In their defence filed by Chief Emeka Ngige (SAN), the Speaker  and the House of Representatives contended that based on the provisions of Sections 88 and 89 of the 1999 Constitution, the House can exercise oversight functions on anything related to provisions of the Nigerian Oil and Gas Industry Content Development Act which was enacted by the sixth National Assembly.

    They further contended that that the invitation to Shell did not amount to usurpation of the judiciary’s functions.

    The lawmakers argued that it was a total misconception of the doctrine of separation of powers for Shell to refuse to honour an invitation to appear before the House and defend itself.

    They further contended that there was nothing to suggest that the Speaker and the House were exercising judicial powers by merely seeking to know whether the allegation against Shell was true or false, adding that it did not matter that Shell is a private limited liability company seeking to buy marine patrol vessels for the protection of its business.

    According to them, as long as the contract comes within  the confines of the  provisions of Nigerian Oil and Gas Industry Content Development Act 2010, the National Assembly has the amplitude of powers to deal with the petition.

    The Speaker and the House further contended that Shell was in an undue haste in rushing to court to stop the House Committee on public petitions from performing its oversight functions.

    The defendants urged the Court to dismiss the suit for being premature and inchoate.

  • Ecobank seeks to stay proceedings in Honeywell’s suit

    Ecobank Nigeria Ltd has urged Justice Mohammed Idris of the Federal High Court in Lagos to stay proceedings in a suit by Honeywell Flour Mills Plc and its sister companies  Anchorage Leisures Ltd and Siloam Global Ltd.

    The companies are praying the court to hold that they are not indebted to the bank, having made a full and final payment of N3.5billion.

    But, Ecobank, through its lawyer Kunle Ogunba (SAN) said the companies were still indebted to it to the tune of N5.5billion.

    The pending application for stay of proceedings could not be heard because of a further affidavit that was served on the plaintiffs counsel, Olabode Olanipekun, to which he was yet to respond. He said it was not ripe for hearing.

    Ecobank, in the application, is praying for an order staying proceedings in the suit pending the hearing and determination of its appeal against a ruling delivered by Justice Idris last November 17.

    The judge had, in the ruling, refused to recuse himself from adjudicating on the case after Ecobank accused him of bias and applied to the Chief Judge to re-assign the case.

    The bank said it subsequently filed a notice of appeal at the Court of Appeal to challenge the ruling.

    The grounds of appeal raises threshold and arguable issues bordering on the propriety of Hon. Justice M.B. Idris refusal to recuse himself from the proceedings in clear defiance of established etiquette for judicial officers faced with allegation of bias, which we seek to test on appeal, hence the urgent need to stay further proceedings before this Honourable Court.

    The orders sought for in this application are of utmost importance and urgency in order not to foist a fait accompli on the Court of Appeal, the bank said.

    The defendant/application added that Order 32 of the courts Civil Procedure Rules 2009 empowers parties to bring such an application when an appeal has been filed.

    In a supporting affidavit, a lawyer in the firm of Kunle Ogunba & Associates, Abdulazeez Balogun, claimed that all rulings save one in this suit have been in favour of the plaintiffs to the detriment of the defendant.

    For instance, the bank said the judge relied on a nocturnal affidavit filed by the plaintiffs at the close of work last November 4 to refuse its previous application for stay of proceedings.

    The filing of the instant motion for stay of proceedings is a mechanism deployed to save the filed notice of appeal from being a mere academic exercise.

    The issue to be settled by the Court of Appeal is one of the flagrant breach of fair hearing which goes to the root of any matter, hence the need for a temporary stop to every substantive and interlocutory applications before this honourable court pending the hearing and determination of the appeal, the bank said.

    But, the plaintiffs/respondents in their counter-affidavit are praying to refuse the application.

    According to them, all the averments in the banks affidavit in support of the motion for stay are false and deliberately calculated to mislead this honourable court.

    The companies said the defendant failed to take cognizance of the CJs refusal to reassign the case.

    They said the bank does not have the right to choose which judge it wants to hear its case and give judgment in its favour.

    Prior to the filing of this application particularly on 1st July 2016 and 4th November 2016, the defendant made applications for stay of proceedings which have all been refused without any appeal against those decisions, the plaintiffs/respondents said.

    They contended that they would be greatly prejudiced if the application is granted.

    The grant of this application would be counter-productive to the extant orders of the Court of Appeal for accelerated hearing of the suit. It is in the interest of justice to refuse this application, the companies said.

    At the last proceedings, the plaintiffs closed their case after calling their last witness, Honeywell Groups Deputy Manager, Portfolio Management, Mrs Oluwakemi Owasanoye, who was cross-examined by Ogunba.

    The court had refused Ogunbas bid to move the application for stay on the basis that it was not ripe for hearing and to enable Olanipekun respond.

    The judge also refused the SANs application to adjourn to for hearing and directed Ogunba to proceed with the cross-examination. Justice Idris said non-hearing of the application for stay would not stop the trial.

    Owasanoye, under cross-examination, said the facilities were given to the companies separately by the defunct Oceanic Bank, which was acquired by Ecobank.

    She said she did not know what the indebtedness was before the N3.5billion was agreed, adding that the companies paid within three months of the agreement.

    Owansanoye the fact that Honeywell Groups chairman Oba Otudeko was a former Oceanic Bank director was not a factor in determining the repayment terms.

    Justice Idris adjourned till May 9 for hearing and continuation of trial.

  • Activists mourn Ilenre

    Activits and members of the civil society have mourned the Chairman of the June 12 Coalition of Democratic Formations, the late   Alfred Ilenr, who died aged 77.

    A symposium was organised in his honour in Lagos.

    Activist-lawyer Mr Femi Falana (SAN), a close associate to the deceased said, activism cannot be complete without mentioning the late Ilenre.

    “He was so passionate about Nigeria’s problems, especially, the harsh economic  reforms, the fact  that the poor can  no longer feed, the health sectors are not working, the poor children can no longer get education,” Falana said.

    He said the late Ilenre was an advocate of the right of the child to education.

    He said the law against hawking should be well enforced.

    “Every child is entitled to go school,  any child hawking on the street  during school hour in Lagos State is child abuse and if the government catches any child hawking during school hours, the parent or guardian will be arrested and prosecuted,” Falana said.

    Another  friend of the deceased, poet and polemist, Mr. Odia Ofiemun said: “The problem of Nigeria is due to bad political structure,  because we have bad politicians in the system.

    “Anybody that has been a governor will want to remain relevant to the political scene so that he gets all the money in the system and that is why it will be difficult for government to curb corruption – from local government chairman to senator, to governor, and to the president, thereby making it difficult for the young ones to have jobs after leaving school.

    “And that is why we have political thieves all over the place. Who is probing who? The person probing the other is he righteous? The government houses are business centers, politics is a business in Nigeriam,” he said.

    Ofiemun believes Nigeria’s wealth can reach everybody if well managed.

    An activist, Mr. Abiodun Aremu, said that  his relationship with Pa Alfred started before the end of military rule.

    He said: “As a matter of fact, the late Alfred is a metaphor. His health started degenerating the day they executed Ken Sarowiwa.

    “Abacha executed him on the eve of Commonwealth Meeting which led to the suspension of Nigeria from UN.

    “If only Nigerian politicians will be contented with what they have, everybody will be contented, but because most of the time, our politicians are not representing us, they represent their pockets because they are cruel,” Aremu said.

  • Group seeks end to child trafficking

    The Justice, Development and Peace  Commission (JDPC) has called for an end to female child trafficking.

    Its Lagos President Chude Achike said  it is modern slavery to sell children for money.

    He spoke during a walk to create awareness on dangers of child trafficking.

    The theme was: Children are not slaves. It was part of activities marking 2017 Year of International Day of Prayers and Awareness against Human Trafficking and Violence in Nigeria.

    Achike condemned parents for giving out their children as house helps.

    He admonished parents to give their children the best of education available.

    Achike said: “It is by standing up for the right of girls and women that you would truly measure up as men.

    “Housemaids or keepers are modern forms of slavery. It is our duty to set them free. Human trafficking destabilises society. Slavery is theft; theft of our dignity. When we stand up for the rights of others, then we are truly human. Human trafficking leads to violence.

    “It is by standing up for the right of girls and women that you would truly measure up as men.”

    The Director JDPC in Lagos,   Rev Raymond Anolefu of the Sisters of St Louis, said if properly cared for, the girl-child can rise to any level in the society.

    He advised that girls should be given the same opportunities as males.

    JDPC is the development agency of the Catholic Archdiocese of Lagos. It is the structure through which the church responds to issues affecting humanity.

  • Falana seeks justice for Amnesty staff

    Lawyer and activist, Femi Falana (SAN) has asked President Muhammadu Buhari to ensure that justice is done in respect of the recent protest against Amnesty International staff in Abuja.

    He requested that President Buhari should order the Inspector-General of Police (IGP) Ibrahim Kpotun Idris to fish out those behind the protest and  bring them to justice.

    Falana also urged the President to order the IGP to remove protesters from the Amnesty International office in Abuja and allow the organization to carry out its human rights work in a conducive environment.

    In a letter written to the President, he said it was imperative for government to publicly condemn acts of intimidation and reprisals against AI and other civil society groups.

    He therefore advised the President  to institute an independent investigation into all allegations of human rights violations and abuses allegedly committed by the military in the context of the fight against Boko Haram in the North-East of the country.

    The activist asked the President to use his office and leadership position to direct the IGP to end the invasion of Amnesty International Office in Abuja, and the harassment of the organization’s staff.

    The letter stated in part: I note that Amnesty International (AI) is a well-known international NGO and among other NGOs operating legally in the country. I recall that upon your election as President you met with the leadership of Al and promised among other things to look into the allegations of serious human rights violations and abuses allegedly committed by the military as contained in the reports published by the organization.

    “I am seriously concerned that the police would allow some apparently hired protesters to invade the AI office in Abuja in broad daylight and subject its staff members to intimidation and harassment. These intruders have impeded the work of the organization and threatened the safety and security of its members of staff who are all Nigerian citizens.

    “ Amnesty International should not be harassed and stigmatised simply for exposing the human rights violations and abuses by the military in the North-East of the country. To allow that to happen is to endanger and undermine the work of not only AI but also other civil society groups in the country. This will in turn create a climate of fear and send an intimidating message to the human rights movement in particular and the entire country in general.

  • Senate, DSS v Magu, Presidency

    Senate, DSS v Magu, Presidency

    Citing a Department of State Services (DSS) report, the Senate has for the second time in three months rejected Ibrahim Magu’s nomination as Economic and Financial Crimes Commission (EFCC) chairman. It did not consider Magu’s antecedents as anti-graft czar in arriving at its decision. It has asked President Muhammadu Buhari to nominate another person for the job. Will he do that? What are his options under the law? ADEBISI ONANUGA sought lawyers’views.

    Will Ibrahim Magu eventually become Economic and Financial Crimes Commission (EFCC) chairman? This is a hard nut to crack, considering that he has been rejected twice by the Senate in three months. Last Wednesday, the Senate again turned down President Muhammadu Buhari’s request to confirm him, citing a Department of State Services (DSS) report.

    Last December 15, it rejected Magu because of the DSS report. In rejecting him again last Wednesday, it said, among others, that the President’s communication on the matter failed to address issues raised in the DSS report.

    Some Senators also expressed disappointment at Magu’s performance during the screening session. They said he failed to properly respond to some questions.

    However, there are insinuations that the Senate’s refusal to confirm Magu was partly influenced by the EFCC’s refusal to drop some high-profile probe.

     

    Magu’s growing reputation 

     

    Incidentally, barely a few days after Senate’s rejection, Magu was invited by two leading anti-corruption organisations, the Transparency International (TI) and Global Witness, to speak at a conference on money laundering and assets recovery, holding today (March 21) in London. Magu is expected to deliver a paper on the topic: “Give us our money back – Nigeria’s fight against corruption: A critical conversation”.

    The invitations, no doubt, were in recognition of the invaluable role the EFCC has been playing in the recovery of stolen funds in Magu’s more than a year in office.

    Under Magu, the commission has recovered billions in foreign and local currencies from corrupt politicians and public officers.

    A former Chief Security Adviser, Col. Sambo Dasuki, is in court on charges of corruption. Three former Chiefs of Air Staff -Alex Badeh, Dikko Umar and Adesola Amosu – and former Petroleum Minister Mrs Diezani Alison-Madueke, among others, are also facing charges of corruption involving huge sums of money.

    Local critics have, however, accused the anti-graft agency under Magu of becoming a tool for witch-hunting which disobeys court orders often.

     

     ‘Rush’ to amend EFCC Act

     

    To underscore the politics behind the refusal of the Senate to confirm Magu, the House of Representatives, last Wednesday, began the process of amending the EFCC Act (2004) and one of the major aspects of the proposed amendment is removing the power of the President to appoint the chairman of the commission and confer it on Nigerians through their representatives.

    The bill was tabled before a session of the House, presided over by the Speaker, Yakubu Dogara, shortly after the Senate took its decision on Magu.

    Already, four consolidated bills seeking to purportedly further empower the EFCC have passed second reading at a session.

    Hon. Bassey Ewa, who co-sponsored the bills, said: “This amendment will open up the EFCC so that the President will no longer be the sole person to either remove or appoint the chairman of the commission.”

     

     How should EFCC chair

    be appointed?

     

    Expectedly, the lawmakers’ rejection of Magu has generated widespread reactions, particularly because of the ongoing anti-corruption war. The Civil Society Legislative Advocacy Centre (CSLAC) and Zero-Corruption Coalition (ZCC), in a statement by Auwal Musa, expressed deep concern at the turn of events in view of the present administration’s determination to fight corruption from all fronts.  The coalition said it was worrisome that the man at the forefront of recovering stolen funds within and outside the country, was rejected for a second time by the Senate, despite his outstanding performance.

    There were arguments for and against on how the President should handle the appointment. While some viewed Senate’s position on the matter as unconstitutional, others saw it as an attempt to protect themselves and their political mentors from being investigated.

    While Section 2 of the EFCC Act deals with the composition of the EFCC and the mode of appointment of the chairman and members of the commission, a school of thought argued that Section 2 (3) of the EFCC Act, which subjects such appointments to be made by the President to the confirmation of the Senate as unconstitutional. To this school of thought, since the EFCC is not one of the commissions listed under Section 153(1)of the Constitution, the Senate cannot sit over the confirmation of the chairman under the EFCC Act. This school of thought also argued that Section 2 (3) of the EFCC Act conferred the power to appoint the chairman only on the President and no other person.

    Sections 153 (1) of the Constitution, provides that: “There shall be established for the Federation the following bodies, namely: Code of Conduct Bureau, Council of State; Federal Character Commission, Federal Civil Service Commission, Federal Judicial Service Commission, Independent National Electoral Commission, National Defence Council, National Economic Council, National Judicial Council, National Population Commission, National Security Council, Nigeria Police Council, Police Service Commission and Revenue Mobilisation Allocation and Fiscal Commission.

    Observers argued that these constitutionally recognised institutions are national institutions and that the EFCC, being a federal agency, is not one of those listed in the Constitution and, therefore, the National Assembly did not have the power to confer upon itself the right to participate in the execution of the law establishing it.

    To these groups, the President is at liberty to re-submit Magu’s name to the Senate for re-consideration and possible confirmation.

    The Executive Secretary of the Presidential Advisory Committee on Corruption (PACAC), Prof. Bolaji Owasanoye, said the committee believed that there was nothing inhibiting Magu from being in office as the Acting EFCC chairman. “If you look at Section 171 of the 1999 Constitution, the President is empowered to retain him as long as he wants in acting capacity. As long as the President remains in office, Magu can continue to act as EFCC chairman,” he said.

    He continued: “According to Section 171 (1) of the 1999 Constitution, power to appoint persons to hold or act in offices to which this section applies and to remove persons so appointed from any such office shall rest in the President.

    The offices, which this section applies are namely: (a) Secretary to the Government of the Federation (b) Head of Service of the Federation (c) Ambassador, High Commissioner or other principal Representative of Nigeria abroad (d) Permanent Secretary in any Ministry or Head of any Extra-Ministerial Department of the Government of the Federation, howsoever designated; and (e) any office on the personal staff of the President.

    “An appointment to the office of the Head of Civil Service (HOS) shall not be made except from among the Permanent Secretaries or equivalent rank in the Civil Service of the Federation or of a State.  An appointment to the office of Ambassador, High Commissioner, or other Representative of Nigeria abroad shall not have effect unless the appointment is confirmed by the Senate.

    “In exercising his powers of appointment under this section, the President shall have regards to the federal character of Nigeria and the need to promote national unity.”

    He added: “Any appointment made pursuant to paragraphs (a) and (e) of subsection (2) of this section shall be at the pleasure of the President and shall cease when the President ceases to hold office;   Provided that where a person has been appointed from a public service of the Federation or a state, he shall be entitled to return to the public service of the Federation or of the state when the President ceases to hold office.”

    No doubt, the provisions of the EFCC Act has raised a lot of constitutional and non-constitutional issues on the confirmation of Magu as the EFCC chair on whether the President can appoint anyone in acting capacity when the law provides for a substantive appointment; whether the President can nominate Magu the third time; and if he  can, how long can he stay in office in acting capacity? What are the options for the President on the EFCC chair under the law?

     

    Magu’s rejection

    ‘illegal’

     

    Constitutional lawyers have, however, described Senate’s refusal to confirm Magu as unconstitutional.  They included Femi Falana (SAN), Former Chairman of the Nigerian Bar Association (NBA), Ikeja Branch, Monday Ubani, a member of the Ogun State Judiciary Service Commission, Abayomi Omoyinmi, Chairman, Committee for the Defence of Human Rights (CDHR), Malachy Ugwummadu, and Welfare Secretary of the NBA Mr Adesina.

    Falana listed three options open to President Buhari, given the development on Magu. According to him, “the President may re-present Magu to the Senate if and after the government must have put its house in order; alternatively,  the President may allow Magu to remain the Acting Chairman of the EFCC since he was  appointed in that capacity pursuant to Section 171 of the Constitution” adding, however, that “ if the President is not satisfied with Mr. Magu’s performance, he is at liberty to appoint another person whose nomination will be forwarded to the Senate in accordance with Section 2 (3) of the EFCC Act, 2004″.

    Falana described Magu’s rejection  as the height of official ridicule of the office of the President. “It is high time the SSS is restrained by President Buhari from sabotaging the fight against corruption by the Federal Government,” he stated.

    He also described as illegal the hurried sitting of the Senate on the matter, noting, that “the participation of many senators, who are either under investigation or being prosecuted by the EFCC, has vitiated the entire proceedings on ground of conflict of interest. It is also a contravention of the Rules of the Senate, which stipulates that matters, which are sub judice shall not be discussed by the Senate”.

    Ubani, on the other hand, noted that the EFCC Act and the Constitution were clearly silent on how long Magu will be in acting capacity. Unlike the position of the CJN that was settled recently on which the Constitution was explicit on how long the nominee can be in acting capacity, that of the EFCC Chairmanship is not specified either in the EFCC Act or the Constitution. A vacuum and lacuna have, therefore, been created in this regard.

    Ubani said the the President could renominate Magu for the third time if he so wishes, but any renomination without proper and effective lobbying would be a sheer waste of time.

    He said the President could exploit the vacuum created by the law and keep Magu in acting capacity for a period not more than the tenure prescribed by the EFCC Act.

    “The President has several options: he can drop Magu and nominate another qualified candidate or he can retain him in Acting Capacity for a period that is not more than the tenure prescribed by the EFCC Act or he can renominate Magu and accompany it with high level lobbying  that must ensure his confirmation, but he must have that assurance from the Senate  before he can renominate him. It is a daunting task and I do not envy the Presidency at all,” he said.

    He, however, noted that it was  appalling for an agency under the presidency to send reports against a candidate nominated by the same executive. “My candid opinion on Magu’s confirmation is that forces from the executive, legislature and the two main political parties all worked together to ensure that Magu was not confirmed. They are fighting back on some known and unknown wars. However, many Nigerians know better. The fate of confirming Magu by this present Senate appears  sealed for ever. I will advise the President not waste his time and that of the nation in renominating Magu to this Senate,” he added.

    Omoyinmi said the President could nominate Magu for the third time and probably beyond as there was no law that said it could not be done.  Omoyinmi recalled that former President Olusegun Obasanjo did a similar thing with former Aviation Minister Prof. Babalola Aborisade, when he was rejected by the Senate.

    “So, there is nothing stopping Magu from being in office as the acting  EFCC boss. Section 171 of the 1999  Constitution empowers the President to retain him as long as he wants in acting capacity,” he argued.

    Ugwummadu said the refusal of the Senate to confirm Magu was borne out of selfish interests of senators rather than any altruistic and patriotic concerns for the country, and that it attested to their position that corruption is not only fighting back, but throwing spanners in the wheels of anti-corruption crusades.

    Ugwummadu pointed out that such embarrassing situation would not have featured at all had the presidency guaranteed better communication and co-ordination of its activities.

    He argued that the statutory powers of the Senate under Section  2(3) of EFCC (Establishment) Acts 2004 should not be examined in isolation and in total disregard of the greater constitutional obligation under Section 15(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), which they swore to uphold as one of the cardinal objectives and directive principle of the State policy to abolish all forms of corruption and abuse of office in Nigeria.

    He, however, urged President Buhari to allow Magu to continue as acting chairman of the EFCC since it did not lie with the Senate to unilaterally determine who must be the President’s nominee. They merely need to confirm the President’s appointment, which they have arrogantly refused to do.

    Adegbite observed that both the Constitution and the EFCC Act empowered only the President to nominate and appoint the Chairman of the EFCC.

    He said, however, that the power to appoint is subject to the confirmation of the Senate.

    “The consequence of this constitutional power of the Senate is to the effect that the President cannot effectively appoint the EFCC Chairman without the concurrence of the Senate. Therefore, we can safely say that both the Senate and the President are empowered to determine who becomes the Chairman of EFCC.

    “Invariably, the current scenario being played out offers a spectacular opportunity to put the powers to appoint the EFCC Chairman in perspective. The Senate having rejected Magu on two occasions, have displayed their undoubted reservation for the person of Magu. But their failure to confirm Magu does not stop him to continue to act as chairman until the President nominates a fresh candidate for that office. If Magu stays put in office, he has in my view done nothing wrong.

  • NBA honours police chief, SAN

    NBA honours police chief, SAN

    The Owerri Branch of the Nigerian Bar Association (NBA) has honoured the Imo State Commissioner of Police, Mr. Taiwo Lakanu  and a Senior Avocate of Nigeria, Chief Arthur Obi Okafor with awards in recognition of their contributions to the society. The event was part of the branch’s law week.

    Lakanu was honoured for stemming the tide of crime in Imo since he assumed office, while Okafor was honoured as the Pillar of Sports and Philanthropy in the Eastern Bar Forum (EBF).

    The awards were presented by  NBA Owerri Branch Chairman, Mr. Lawrence Nwakaeti, supported by the Law week committee chairman, Mr. N. A. Nnawuchi (SAN).

    Lakanu received his award personally while Miss Chisom Chude represented Okafor.

    Lakanu started his educational career at the Yaba Model Primary School and Eko Boys High School where he sat for his West African School Certificate.

    From there, he proceeded to CMS Grammar School, where he sat for his Advance levels and passed out  in flying colours

    His determination to improve himself encouraged him to study Philosophy and subsequently Law at the University of Lagos. He was later called to the Nigerian Bar.

    He proceeded to the prestigious University of Leeds in England where he obtained a Masters degree in Law.

    Lakanu enlisted into the Nigeria Police Force as Cadet Assistant Superintend of Police (ASP) and has served in various commands, formations and departments, including Operations, Investigation and Administration.

    During his stint as the Head of the Special Anti Robbery Squad in Lagos, Lakanu earned the Inspector-General of Police gallantry award for his contributions to reducing the spate of crime in Lagos.

    He also lectured Law at Police College Ikeja from where he was appointed as the Principal Staff Officer (PSO) to the Inspector-General of Police.

    Okafor started his educational career at All Saints Primary School, Abatete in Anambra State. His desire to become a lawyer took him to the  University  of Calabar where he obtained his Bachhelors of Laws ( LL.B) Hons.  in 1990 and from there proceeded to the Nigerian Law School, Lagos where he obtained Barrister at Law (BL) in 1991.

    In 1992, he joined the law firm  of Late Dr. Chimezie Ikeazor, (SAN) where he cut his legal  teeth and learnt the art of the profession.

    He established his current law office at God is great arena, Asaba in 2009 and was conferred with the prestigious rank of Senior Advocate of Nigeria (SAN) in 2010.

    He is a Fellow of the Chartered Institute of Arbitrators Nigeria and a recipient of several awards including the distinguished Alumnus Award of the University of Calabar.

    Okafor has served the Nigerian Bar Association (NBA)  in many capacities including: Alternate Chairman Legislative Advocacy Committee of NBA 2012-2014, Chairman of the NBA Resources Committee 2016.

    He is a former representative of the NBA on the steering Committee of NEITI Civil Society Platform. He is a former Chairman South East Zone B of the NBA Disciplinary Committee. Arthur as he is fondly called, has been a member of the National Executive Committee (NEC) of the NBA since 2012. He is a Member of the just inaugurated NBA Legal Profession Regulation Review Committee.

  • How to stamp out corruption, by lawyer

    How to stamp out corruption, by lawyer

    The anti-corruption war has been a marketing edge for the President Muhammadu Buhari’s administration. In this article entitled: “Best practices in combating corruption”, WAHAB SHITTU suggests how to incorporate best practices into the drive to kill corruption. The University of Lagos (UNILAG) law teacher lists 22 ways to strengthen the battle.

    Recently, the Vice President, Prof Yemi Osinbajo SAN, at a summit on anti-corruption in Abuja emphasised the need for our country to embrace best practices and models in the fight against corruption.  The timely call has generated reactions across the country with stakeholders wondering how best practices could be incorporated into our current drive to stamp out corruption. This intervention, a product of modest research efforts is designed to meet that expectation on the way forward.

     

    Consequences of corruption

     

    No country, however democratic, is free from corruption. This social ill touches government officials, politicians, business leaders and journalists alike. It destroys national economies, undermines social stability and erodes public trust.

    Corruption lowers tax revenue, inflates costs of public services and distorts allocation of resources in the private sector. The negative correlation between good governance and economic development has been identified. Corruption humiliates the ordinary citizen and weakens the state.

    The fight against corruption has been recently placed high on the agenda of the OSCE states. The 1999 Istanbul Charter for European Security calls for anti-corruption efforts to intensify. In 2001, under Romanian chairmanship, the Economic Forum in Prague and subsequent seminar in Bucharest in 2002 were devoted to good governance. The OSCE Office for Democratic Institutions and Human Rights and the OSCE field presences have organised debates and training programmes. In some cases, the OSCE has worked with international and local partners in anti-corruption campaigns.

    Elsewhere, other international organisations – the United Nations (UN), the Council of Europe, the Organisation for Economic Cooperation and Development as well as the World Bank and the European Bank for Reconstruction and Development – have launched similarly aggressive campaigns.

    Political leaders in many countries have already declared combating corruption as their priority. In some countries, national plans of combating corruption are being created and specialised agencies established. There are growing numbers of international and national non-governmental organisations engaged in unmasking corruptive practices. Media, wherever free, denounces corruption in politics and business.

    Yet, practical knowledge of how to wage an effective anti-corruption campaign remains limited. To assist OSCE member-states in their endeavors, this booklet provides examples of best practices from the OSCE region and beyond. The described case studies are not meant as made-to-order solutions for fighting corruption. Rather, they are narrative examples whose lessons can be applied as individual country circumstances allow.

     

    Best practices

    Political openness

     

    One of the best practices recognised in combating corruption is the need to guarantee political openness, a feature normally associated with matured democracies around the world.

    The Office of the Co-ordinator for Economic and Environmental Activities (OSCE) defines the concept this way:

    What is an “open society”? An open society recognises that no one has a monopoly on the truth. Citizens can vigorously debate government policies and the future direction of their country. Freedom is maximized, but the weak and the poor are protected. Legal guarantees of freedom of association and freedom of speech are assured.

    Such societies are not just the exclusive domain of mature democracies. They can be part of any state’s democratic development. An open society is not a function of culture or history – examples range from France to Sweden – but of a sincere commitment to government transparency and civil rights.

    The concept of an open society first entered the modern political lexicon with the publication of one of the 20th century’s most influential books. Karl Popper’s 1945 landmark study The Open Society and Its Enemies prophesied the collapse of communism and exposed the flaws of socially engineered political systems. It argued for the widest possible freedoms, but also cautioned that “We must [also] construct social institutions, enforced by the power of the state, for the protection of the economically weak…”

    Open societies are not of recent origin. They can be traced still further back in history, to ancient Greece. Pericles, the legendary leader of Athens from 462 BC – 429 BC had a vision of society still relevant for the world today:

    “Our political system does not compete with institutions which are elsewhere in force. We do not copy our neighbours, but try to be an example. Our administration favours the many instead of the few: this is why it is called a democracy. The laws afford equal justice to all alike in their private disputes, but we do not ignore the claims of excellence. When a citizen distinguishes himself, then he will be called to serve the state, in preference to others, not as a matter of privilege, but as a reward of merit; and poverty is no bar.

    “The freedom we enjoy extends also to ordinary life; we are not suspicious of one another, and we do not nag our neighbor if he chooses to go his own way. … But this freedom does not make us lawless. We are taught to respect the magistrates and the laws, and never to forget that we must protect the injured. And we are also taught to observe those unwritten laws whose sanction lies only in the universal feeling of what is right … Our city is thrown open to the world; we never expel a foreigner … We are free to live exactly as we please, and yet, we are always ready to face any danger…. To admit one’s poverty is no disgrace with us; but we consider it disgraceful not to make an effort to avoid it … We consider a man who takes no interest in the state not as harmless, but as useless; and although only a few may originate a policy, we are all able to judge it. We do not look upon discussion as a stumbling block in the way of political action, but as an indispensable preliminary to acting wisely…”

    If we are to replicate the element of open society in our circumstances presently, it will mean ensuring that access to information in all spheres of our national life remain unimpeded. Practically speaking, now is the time to give full effect to the Freedom of Information (FoI) Act permitting access to information as a cardinal principle of state policy.  It is also necessary for states to domesticate the Freedom of Information Act in all the states in the federation.

     

    Elections and political

    party financing

     

    The other critical element in combating corruption relates to elections and political party financing.  Our elections must not only be free, fair, credible and peaceful but must also be lacking in corrupt practices. The challenge, however, is how to guarantee that an election meets international democratic standards. The Institute for International and Democratic Electoral Assistance (IDEA) 2, a British non-governmental organisation that promotes sustainable democracy worldwide, suggests several general guidelines:

    • “Make institutions more effective representatives of the diverse composition and interests of the population (including gender equality)
    • Delegate more power to local institutions
    • Recognise opposition parties as essential elements of the political system and create mechanisms for co-existence and mutual respect between ruling and opposition parties
    • Encourage the development of a sustainable party system
    • Recognise and involve civil society, including critical lobby groups, such as human rights and minority groups, women’s groups and women’s political leagues as partners in the political and general development of each country
    • Introduce laws and procedures that enhance the creation of a democratic environment in which political parties, local institutions, non-governmental organisations and media can operate freely.

    Much of the corruption in the public space orchestrated by the political elite can be drastically reduced if in addition to the foregoing guidelines, we also implement retired Justice Mohammed Uwais recommendations on electoral reform and deploy punitive measures against violators of electoral laws in the area of electoral financing and perpetration of fraudulent and corrupt practices during elections.

     

    Conflict of interest and

    monitoring financial assets

     

    Corruption also festers in areas of conflict of interests and indiscriminate acquisition of financial assets by public officials.  One commentator puts it this way: “Serving the public interest is the fundamental mission of a government and its public institutions. Citizens are entitled to expect that individual officials will perform their duties with integrity, and in a fair and unbiased way. Public officials who maintain private interests during their time in office can present a threat to this fundamental right. Such conflicts of interest have the potential to weaken the trust of citizens in public institutions.”

    In a number of countries, public officials regularly, and in some cases openly, flout conflict of interest laws. Not only are the laws ignored, but little – if any – effort is made to enforce them. In those countries, the building of an ethical public service is of the highest priority.

    Even while recognising that conflicts of interest can be commonplace in certain countries, the discussion here proceeds on the basis that widespread defiance of the law is not the case, just the opposite. Rather, it provides a general overview for an ethical public administration on how to prevent such conflicts of interest from occurring.

     

    What is conflict of interest?

     

    “A conflict of interest arises when a person, as a public sector employee or official, is influenced by personal considerations when carrying out his or her job. In such cases, decisions are made for the wrong reasons. Moreover, perceived conflicts of interests, even when the right decisions are being made, can be as damaging to the reputation of an organisation and can erode public trust as easily as can an actual conflict of interest…”

    One example of how to utilise constitutional provisions to forestall conflict situation is the Thailand’s 1997 Constitution. The framers of the constitution of that country saw conflicts of interest as such a fundamental threat to democracy that such conflicts are addressed in the constitution itself. Therefore there are guaranteed provisions requiring government officials to be politically impartial and prohibit a member of the House of Representatives, Thailand’s lower house of parliament, from placing himself or herself in a conflict of interest situation. A few examples will suffice.

    Section 1105 clearly states that a member of the House of Representatives shall not:

    • Hold any position or have any duty in any state agency or state enterprise, or hold a position of member of a local assembly, local administrator or local government official or other political official;
    • Receive any concession from the state, a state agency or state enterprise, or become a party to a contract of the nature of economic monopoly with the state, a state agency or state enterprise, or become a partner or shareholder in a partnership or company receiving such concession or becoming a party to the contract of that nature;
    • Receive any special money or benefit from any state agency or state enterprise apart from that given by the state agency or state enterprise to other persons in the ordinary course of business.

     

    Section 111 provides that:

    • A member of the House of Representatives shall not, through the status or position of member of the House of Representatives, interfere or intervene in the recruitment, appointment, reshuffle, transfer, promotion and elevation of the salary scale of a government official holding a permanent position or receiving salary and not being a political official, an official or employee of a State agency, state enterprise or local government organization, or cause such persons to be removed from office.

    Section 128, also extends this provision to senators.

    How do we avoid conflict of interest element in public administration? Again, I am guided by the views of a commentator as follows:

    “The following checklist can help individual public servants identify situations where a conflict of interest is likely to arise:

    What would I think if the positions were reversed? If I were one of those applying for a job or a promotion and one of the decision makers was in the position I am in? Would I think the process was fair?

    Does a relative, a friend or an associate or do I stand to gain or lose financially from an organisation’s decision or action in this matter?

    Does a relative, a friend or an associate or do I stand to gain or lose my/our reputation because of the organisation’s decision or action?

    Have I contributed in a private capacity in any way to the matter being decided or acted upon?

    Have I received any benefit or hospitality from someone who stands to gain or lose from the organisation’s decision or action?

    Am I a member of any association, club or professional organisation, or do I have particular ties and affiliations with organisations or individuals who stand to gain or lose from the organisation’s consideration of the matter?

    Could there be any personal benefits for me in the future that could cast doubt on my objectivity?

    If I do participate in assessment or decision making, would I be worried if my colleagues and the public became aware of my association or connection with this organisation?

    Would a fair and reasonable person perceive that I was influenced by personal interest in performing my public duty?

    Am I confident of my ability to act impartially and in the public interest?”

    I think there are sufficient constitutional guarantee against conflict of interest in our laws particularly the provisions within the purview of the Code of Conduct Bureau Act and Code of Conduct Tribunal respectively.  What is required is the requisite political will to implement these provisions without fear or favour in conformity with prescribed international standards and best practices.

    We also need to monitor financial assets and questionable account lodgments. The financial intelligence unit of the various anti-graft agencies needs to be strengthened to combat corrupt practices.  We also need an effective asset forfeiture and management regime to track proceeds of corruption and deploy same for developmental objectives.

     

    Regulating lobbying

     

    There is also need to regulate lobbying as a lot of corruption takes place in the guise of lobbying in the political space.  In lobbying, there is potential for corruption.

     

    Political and judicial immunity

     

    The other aspect is in the realm of political and judicial immunity.  The Immunity Clause in the Constitution needs radical review to forestall abuse.  The immunity afforded certain categories of public officials ought to be restricted to civil proceedings.  There is no justification for public officials who loot treasuries to enjoy any immunity from prosecution even while still in office.

     

    Building and maintaining

    ethical public administration

     

    There is also need to build and maintain ethical public administration.

    Enhancing complaint

    mechanisms and the

     Ombudsman

     

    We need to set up the Office of the Ombudsman to ensure transparency and accountability in the management of public and private affairs.

     

    Enhancing revenue

    collection transparency

     

    There should also be transparency in revenue collection strategies and framework. The government should emphasize strict monitoring of public finances and revenue.  The Treasury Single Account (TSA) introduced by the government to block revenue leakages is a step in the right direction but further steps must be taken to ensure it does not constitute avenue for hardships, bottlenecks and bureaucracy.  A legal framework to regulate its operation is imperative.

     

    Enhancing public

    procurement processes

     

    There should be transparency in public procurement processes. The Public Procurement Act needs to be replicated in the states to enhance effectiveness and efficiency in public procurement – avenue for needless corruption.

     

    Ensuring transparency

    on licenses and concessions

     

    Licenses and concessions need to be effectively regulated to forestall, abuse and insider dealings.  Strict regulations are required with institutional strengthening being critical to regulation of such licenses and concessions.

     

    Strengthening privatisation

    and anti-corruption

    procedures

     

    The belief in many quarters is that the public is shortchanged in the way and manner privatisation of public facilities is handled by successive administrations.  A full-scale enquiry ought to be carried out to detect the loopholes in the privatisation process and ensure anti-corruption procedures put in place to enhance the process are fully implemented in line with established guidelines for the privatisation exercise.

     

    Effective criminal

    law and enforcement

     

    One way to combat corruption within the framework of best practices is to deliver effectively on criminal law and its enforcement.  Consequently, there must be efficient and effective investigations, efficient and effective prosecutions and efficient and effective adjudication.  The element of timeliness and speed must be enlisted in the process to forestall delay while ensuring strict regulations to deliver on responsible litigation through the award by our various courts of wasted costs against practitioners who do not subscribe to responsible litigation. We could also look at other options including setting up of special courts, passing the Whistle Blowers Act, the Witness Protection Act, the Asset Management and Recovery Act, concluding bilateral and multilateral treaties with state actors and non-state actors to ensure repatriation of stolen assets and among others.

     

    National anti-corruption

    strategies

     

    The country requires the strengthening of national anti-corruption strategies in line with best practices by institutionalising an anti-corruption policy framework.

     

    Effectiveness of

    anti-graft agencies

     

    The anti-corruption agencies need to be strengthened in terms of quality personnel, training, logistics, equipment and capacity building.  Funding is also critical if these anti-corruption agencies are to deliver on their mandates.

    The character of leadership of such agencies is also significant.  A Magu in EFCC is one example of such character because he is a performer.  All must ensure he is confirmed and a character of such orientation sourced to drive other anti-graft agencies.

     

    Media and civil

    society cooperation

     

    The civil society and the media must enlist in the fight against corruption with zeal and uncommon passion.  Corruption hurts us all and so, fighting it ought to be a shared responsibility.