The Nation Newspaper

Category: Law

  • How legal is national assets sale?

    How legal is national assets sale?

    Is it lawful for the Federal Government to meet the short-term gap in its finances by selling national assets? What does the 1999 Constitution say? ROBERT EGBE examines the law and the argument of lawyers on the debate which won’t go away, despite the government’s denial of the plan to sell the national patrimony.

    WheN Africa’s richest man Aliko Dangote suggested the sale of national assets to exit recession, many saw him as flying a kite. When the National Economic  Council (NEC) chaired by Vice President Yemi Osinbajo bought the suggestion, the fears were confirmed. The 36 governors are members of the NEC,  whose position stirred the hornet’s nest. Politicians, economists, lawyers and others condemned the proposal, warning that national assets might end up in the hands of friends and cronies of government officials.

    The plan, some lawyers said, could breach the 1999 Constitution which prohibits the concentration of the economy in a few hands.

     

    The case for sale

    According to Finance Minister Kemi Adeosun, Nigeria is in its worst economic recession in 29 years, and is facing challenges plugging its budget deficit.

    The country has also been finding it difficult to secure low-interest foreign loans due to its poor credit ratings, which has made assets sale an attractive option.

    In an interview in Lagos on September 20, the Central Bank of Nigeria (CBN) Governor, Godwin Emefiele, said he was favourably disposed to assets sale and had considered the option since April, last year.

    He said: “In the short run, we can sell assets. You will recall that as at April 2015, I had an interview with Financial Times  of London, during which even before the government came on board, I had opined that there was need for the government to scale down or sell off some of its investments in oil and gas, particularly in the Nigerian National Petroleum Corporation (NNPC) and Nigeria Liquefied Natural Gas (NLNG) Limited, as at that time when the price of oil was around $50-$55 per barrel.

    “We actually commissioned some consultants that conducted the study and at the end of that study, we were told that if we sold 10 per cent to 15 per cent of our holding in the oil and gas sector, we could realise up to $40billion.

    “Unfortunately, the markets have become soft. Now, if we choose to do that, we could still get $10 to $15b or maybe $20b.”

    Emefiele said the sale should be done with a “buy-back” clause, so that the government could recover the assets in future.

    Billionaire businessman Aliko Dangote, Emir of Kano and former CBN Governor Muhammadu Sanusi II, and Senate President Bukola Saraki, among others, have also backed the idea.

    Last Thursday, the National Economic Council (NEC), comprising governors, approved the sale of some of the assets. A statement from the office of  Vice President Yemi Osinbajo, same day, said the step was aimed at “tackling the current economic recession in the country”.

    The assets

    • Nigeria Liquefied Natural Gas (NLNG) Limited was incorporated as a limited liability company on May 17, 1989, to harness the vast natural gas resources and produce Liquefied Natural Gas (LNG) and Natural Gas Liquids (NGLs) for export. The establishment of NLNG is backed by the NLNG Act.

    The company is owned by four shareholders: the Federal Government of Nigeria, represented by the Nigerian National Petroleum Corporation (49 per cent); Shell (25.6 per cent); Total LNG Nigeria Ltd (15 per cent) and Eni (10.4 per cent).

    It has wholly–owned subsidiaries: Bonny Gas Transport (BGT) Limited and NLNG Ship Management Limited (NSML).

    According to the Acting Chairman, Revenue Mobilisation Allocation and Fiscal Commission (RMAFC), Shettima Abba Gana,  the NLNG remitted a dividend of $1.289 billion to the Nigerian National Petroleum Corporation (NNPC) in 2013, indicating that the asset was highly productive.

    • The NNPC is the oil company through which the government regulates and participates in the petroleum industry.

    Established on April 1, 1977, by law, NNPC manages the joint venture between the government and a number of foreign multinational firms, which include Royal Dutch Shell, Agip, ExxonMobil, Chevron, and Texaco (now merged with Chevron).

    Under the 1999 Constitution, all mineral resources are the property of the Federal Government, thus oil firms in Nigeria appropriate portions of their revenue to the government, which account for nearly 60 per cent of the revenue generated by the oil industry.

    According to an article, “Reforming the oil industry” in The Economist, revenue from NNPC accounts for 76 per cent of the Federal Government income and 40 per cent of Nigeria’s GDP.

    • The Presidential Air Fleet (PAF) has 10 aircraft, none of which was bought by the Buhari administration.

    On November 17, Senior Special Assistant to the President (Media and Publicity), Garba Shehu,  said the government spent a little above N2 billion on maintenance of PAF in six months. The Goodluck Jonathan administration reportedly spent N9.08bn annually on maintaining PAF.

    Other assets include refineries, airports and the East-West Rail lines

     

    What does the Constitution say? 

    Section 16 governs the management of resources, including government assets, and it falls under the fundamental objectives and directive principles of state policy in Chapter II.

    All sections under the chapter are not justiciable, meaning that the government cannot be successfully sued if it fails to abide by them.

    Another relevant provision is Section 16 (1). It states: “The State shall, within the context of the ideals and objectives for which provisions are made in this Constitution;  (a) harness the resources of the nation and promote national prosperity and an efficient, dynamic and self-reliant economy; (b) control the national economy in such manner as to secure the maximum welfare, freedom and happiness of every citizen on the basis of social justice and equality of status and opportunity; (c) without prejudice to its right to operate or participate in areas of the economy, other than the major sectors of the economy, manage and operate the major sectors of the economy; (d) without prejudice to the right of any person to participate in areas of the economy within the major sector of the economy, protect the right of every citizen to engage in any economic activities outside the major sectors of the economy.

    (2) The state shall direct its policy towards ensuring:  (a) the promotion of a planned and balanced economic development; (b) that the material resources of the nation are harnessed and distributed as best as possible to serve the common good;  (c) that the economic system is not operated in such a manner as to permit the concentration of wealth or the means of production and exchange in the hands of few individuals or of a group; and  (d) that suitable and adequate shelter, suitable and adequate food, reasonable national minimum living wage, old age care and pensions, and unemployment, sick benefits and welfare of the disabled are provided for all citizens.”

    Section 44 (1) says: “No moveable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things – (a) requires the prompt payment of compensation therefore and (b) gives to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a court of law or tribunal or body having jurisdiction in that part of Nigeria.”

     

    The case against sale

    Lagos lawyer Femi Falana questioned the government’s proposal, saying it conflicts with Sections 16 (c) and 44.

    He said: “It is pertinent to point out that the suggestion is in total conflict with Section 16 of the Constitution which has prohibited the concentration of the nation’s wealth in the hands of a few people or a group.

    “Indeed, by Section 44 of the Constitution, the nation’s natural resources shall be held in trust for the Nigerian people by the Federal Government.

    “One would have expected senators who swore to protect the Constitution to kick against the suggestion to sell the assets of the nation to a few people. But for selfish considerations a few legislators who may be queuing up to participate in the purchase of the nation’s assets are not prepared to defend the Constitution.”

    National President of the Committee for the Defence of Human Rights (CDHR) Malachy Ugwummadu agreed.

    He said according to Section 16, the “commanding height of our economy” could not be concentrated in a few hands.

    Kunle Ogunba (SAN) urged the government to explore other means of generating capital rather than selling national assets.

    He said: “What are the national assets? If there are national assets properly so-called, do you sell? It’s about sincerity of purpose. Are people clamouring for this so that they can corner it from the back within the context of our political experience? Some people will champion it and then get their cronies to buy. It might be another form of corruption to pillage the system.

    “If there is sincerity of purpose, are we there yet? Instead of selling assets, the government could borrow; it could diversify the economy. You have spent your reserve, and you want to sell national assets. If you sell them, what of the people coming behind? And our system is not always pure.

    “So, whatever it is, I don’t think I support it. I don’t know what national assets that are hidden somewhere that we do not know. I think it is diversionary.”

     

    What should be done

    Former Nigerian Bar Association (NBA) president Dr. Olisa Agbakoba (SAN) was reluctant to say whether the proposed sale was right or not.

    In a statement, he advised the government to carefully consider the idea and suggested two things it must do if it decided to sell assets.

    Agbakoba said: “I have followed with interest the debate on the propriety or otherwise of Federal Government’s proposed sale of national assets to deal with the recession. I will not make any comment on the propriety of the proposed sale.

    “However, I am of the view that the Federal Government needs to do two things: First, an Inventory of Financial Requirements – How much money do we need? Second, an Inventory of Need – Where do we put the money? Findings from these inventories will provide a guide for government.

    “I will also recommend President Obama’s approach to the American Recession. President Buhari should propose to the National Assembly a Reinvestment and Recovery Bill and an Emergency Economic Stabilisation Bill to stimulate the economy and bail out the ailing financial system.”

    Chief Gani Adetola-Kaseem (SAN) urged the government to sell only non-economic  assets.

    Adetola-Kaseem said: “When you talk of sale of assets, there are two types of assets involved: economic and non-economic assets. Economic assets are investments that are yielding income to the country; they are commercial in nature, for instance our investment in Nigerian Natural Liquefied Gas (NNLG), or the refineries.

    “To talk of selling that off in order to fund the economy, I think it’s myopic, because that is like selling the goose that lays the golden egg. It won’t make any sense to sell them off.

    “I don’t think it is correct to sell off assets that are yielding income to the country, or projecting a good image of the country.”

    Dr. Paul Ananaba (SAN) shared similar sentiments. He said: “I’m in support of sale of assets of the government, but not a blanket sale. The assets of the government should be appraised, those that are no longer necessary to be held by the government can be sold, balancing the need for government to play its role under the constitution, of securing life and property and the welfare of the citizens.

    “In some of the assets, the government needs to divest considerably  and must carry the people along as to the assets that’ll be sold, commercialised or that it wishes to divest from, in a transparent, patriotic manner that will be in the country’s best interest.

    “Finally, we should ensure that it is not done as perceived before i.e. merely to transfer government assets into the private hands of friends of government officials and party loyalists and all that.”

     

  • Judiciary’s role in exiting recession

    Judiciary’s role in exiting recession

    Mr Adekunle Ogunba (SAN) is an insolvency practitioner of repute. A holder of Masters Degree in Law from the University of Lagos (UNILAG), he is involved in major receivership actions. He shares his views on how to improve justice administration with JOSEPH JIBUEZE.

    In award of punitive cost

    The cost that is being awarded, such as N2,000 or N5,000 in this day and age is not realistic. With all due respect, some of the judges are a bit timid. It’s only a few judges that will award N100,000 against a counsel that frustrates a case. We can come up with a strategy in which N1million is awarded for frivolous adjournments. And if you lose a case in the long run, what costs are awarded? You hear N20,000 for a case that has taken about five years. There should be a way to penalise people who deliberately abuse the system by filing frivolous cases. There should be a guideline. It can be called Cost Implementation Rules or Cost Awarding Process and Rules. The cost awarding system is obsolete. It is not in tandem with reality. If a cost of N5000 is awarded against a party seeking adjournment, it cannot even fuel the other lawyer’s car, let alone the litigant’s. We should have a system where the cost of an adjournment is calculated. If witnesses come from Abuja to Lagos or from outside the country, and the trial is frustrated by the adversary party, he should be made to pay when the cost is proven. One way  to solve court congestion, which will dovetail in our economic progress, is the cost. It’s a veritable tool that can be used. We should put a system in place that if your case is found to be frivolous, you are sanctioned heavily to serve as deterrent for others who want to come and pollute the system.

    On the judiciary’s role in exiting recession

    When cases are not moving fairly well, foreign investors are scared; people who invest money within the system are afraid of the dispute resolution mechanism if it is not proactive to meet the justice of the case. So, within that context, I think the judiciary has an ambulatory role to play. The judiciary cannot make economic decisions, but it can intervene if there are disputes. To that extent, the judiciary has a role to play.

    On anti-corruption war scaring investors

    I don’t believe that government’s anti-corruption fight is discouraging investments. In fact, it is encouraging investments. It shows that the economy is being cleansed and you can come in and do clean business. So, I disagree with that parochial view. Do we now say that people who have stolen should be given a slap on the wrist or something? In fact, the converse is  the case because once foreign investors see our economy as “anything goes,” we are doomed. So, with the anti-corruption fight, we will be seen to be addressing our problems. I think that suggestion is diversionary and should not even be considered.

    On stripping EFCC of its prosecutorial powers

    I think that every process, every institution, every organisation, every individual that resists reforms or is averse to genuine criticisms is not even good for our system and economy. We are all here to make the system work better. I may not be right in my criticism but it might engender the party being criticised to wake up to its realities and, may be, to be on top of its game, as it were. So, within that context, I think the statement by the NBA President was just twisted out of context. And I think there are examples in what he has said. So, I don’t think it was right for the EFCC to throw ad hominem darts at the president for making such a statement. To now say there are vultures in the NBA, I think that  is rather unfortunate. It is addressing the person and not the issue. The issue is: with the corruption cases that the EFCC is saddled with, are they on top of it? If there are statistics that they are doing well, then they can continue. But if there are reasons for the system to be reviewed, you don’t look at the person calling for it and call them names.

    On funding of judiciary

    I am an advocate of the fact that our judges are not well paid. I’ve said it severally. I also know, for a fact, that some of our judges are overworked. If you look at Lagos State for example, there are not even enough judges for the cases. If you look at the population ratio, if you do the statistics like they do in policing – how many policemen per person? – you will find the statistics very shocking for the judiciary. And that is why you go to court and you find 50 cases in a day for one judge. He’s a human being like me and there’s little you expect him to do in that circumstance. He’s not a magician. So, I think one way to insulate the judiciary is proper funding, with the judges being well remunerated so that they can effectively and happily perform their roles. And again, litigants and lawyers should limit filing frivolous cases in court because you’ll find out that many people now take advantage of the municipal factor of congestion of courts to file frivolous cases, knowing that it will take years to unravel and the punishment for that is minimal.

    On judges writing in longhand

    Even our court system is obsolete. Our judges write longhand in 2016. And you don’t expect much from such a system. I’m granting this interview, you are not writing. It’s being recorded; it’s not so in our judicial system. If you cough, the judge writes it down. And that is not supposed to be.

    On why some parties delay cases

    If you owe a bank, for example, certain millions of naira and you know that you can tie the bank perpetually in court for, maybe, five, 10 years, without paying the money, then the incentive to behave irresponsibly is there. You’ll just go to court and get all manner of injunctions. In fact, we have seen that in some cases, at the time the cases are being resolved, the bank is moribund, which is not good for our overall economy.

    On his new legal year expectations

    I think our judges need to be well remunerated; the condition of service should be made more attractive to serve as an incentive for judges to work harder. More judges need to be appointed, because our judges are overworked. The judiciary needs to be funded. If you look at the antecedent of the funding for the judiciary, you will see that the budgetary allocation kept dwindling year-in-year-out and it affects the overall performance of the judiciary as a separate arm of government. The judiciary hardly now builds new courtrooms; some of the courts that are in existence in some of the various jurisdictions are obsolete. The high court in my own state, the one in Ijebu Ode for example, has been there for many years; the society has been changing but it is the same old system. And how do we expect a 1960 court to perform a 2016 assignment? So, that is one major problem that we do have.

    On making instant pronouncements

    I think also the system of making pronouncements instantaneously on issues when arguments are raised and deferring the reason till later should be taken advantage of not only by the Supreme Court but also by the lower courts so that we can quickly decongest the courts. The truth is that when you argue an application before a judge, he has a fair idea where the pendulum will swing but he is not allowed to say it but will defer it till a later time. But if the system can be made in such a way, we will all be better for it.

    On way out of conflicting verdicts

    Most of our cases are not electronically reported. If the Court of Appeal in Ibadan gives a judgment, there’s no way of knowing it instantly. But that is not to say that some judges don’t deliberately give conflicting judgments. A high court judge is not tied to the decision of his fellow brother. He’s at liberty to disagree. But if you look at the PDP case involving similar parties for instances, there might be some deliberateness. I’m not saying that is so. That is what needs to be investigated. Sometimes there’s conflict unwittingly. There needs to be a harmonisation. Once there’s a decision of the Court of Appeal, it should be immediately circulated. You don’t say because a judge has read it in a newspaper, he’s supposed to take notice of it. The facts might be different. There should be a platform by which decisions are immediately circulated so no judge can claim they are not aware.

    On budget padding

    Some of us who are professionals cannot afford to come out because I have no house to sell to give somebody to vote for me because I want to serve. When you bring it home to the Dogara issue, that is why he would say he would not resign because it had almost cost him a hand and a leg to get there. There are no principles. In other climes, allegations that are not even up to that – being seen in a disco house, engaging a prostitute – would be seen as improper conduct and the person would throw in the towel. Once our political office holders start doing that then we’d be better off.

  • ‘Dogara shouldn’t be a judge in his case’

    ‘Dogara shouldn’t be a judge in his case’

    Mr. Ishaq Magaji studied law at the Ahmadu Bello University (ABU), Zaria. He was called to the Bar in 2008. He obtained a Masters degree in Law from the University of Jos (UNIJOS) in 2012 and an MBA in Finance and Investment from the Bayero University, Kano (BUK). In this interview with Legal Editor John Austin Unachukwu, Magaji speaks on the role of law in economic development.

    What do you make of allegations of budget padding rocking the House of Representatives? 

    Padding as an offence is unknown to the Nigerian law and no person shall be convicted of an offence, unless that offence is defined  in our laws. That’s the position of the law. So as a lawyer, I will not build my statement on the name created by the journalists for a certain conduct. If what transpired at the House of Representatives is a distortion of the unanimous resolution of the House by  few individuals, then it  is  forgery. And forgery is known to our law, therefore, the matter calls for an external investigation. The responsibility for investigation in to a crime lies with security agents and they are expected to do their job.

     What is your view on the Ethics commitee’s role?

    You can’t  be a judge in your own case.  This is  against the principle of natural justice and fair hearing. The Chairman of the House Standing Committee on Ethics is also accused of receiving N200million projects from Mr. Speaker. Therefore, since the allegation is hanging on the neck of Mr. Speaker and the Chairman of the Ethics Committee, the judge should be another person different from the two. Moreso, the Court of Appeal has already spoken on the powers of the House Committee on Ethics in a case between Peter Obi Versus Anambra State House of Assembly (2007) Pt 1028, where the Court of Appeal limited the power of the Ethics Committee within  Section 4(8) of the 1999 Constitution (as ammended).

    As a business law expert, what is your take on recession?

    It’s just unfortunate that we didn’t  heed  the advice  of some of our economic experts who foresaw this period and the attendant challenges. The recession could have been avoided, but here we are, in deep recession with no much saving to cushion the effects on the masses. The inflow of forex is short and the banks  are deprived of  public funds.

    So what is the way out?

    It’s my humble view  that we borrow a leaf from other countries that had once experienced a similar problem.  Remember that at a point in time, the American economy was caught in depression as a result of banks’ speculation on trades. What President Franklin did was to sponsor a Bill to the Congress that stopped banks from the act of speculation. Americans banks were directed to lend money to the citizens only and were  restricted from speculation. That was the legal solution  that the American government proffered to its identified economic problems. The culprits, that is the the banks, were identified and further restricted from the activities that pushed the country to economic depression.

    What do you make of calls for economic diversification?

    You have brought me to the theme of my Ph.D thesis. My view on this is that the  government must translate its words in to action. We all know that this country is blessed with fertile land for farming and endowed with  abundant mineral resources. But what structures did government put in place to tap  and harness  these enormous alternative means of resources. Banking from my experiences as a third generation miner in our family tree, I have these suggestions to the government. Mining of Solid Minerals is capital intensive. Government should encourage investment into the sector through incentives. The principal statutes regulating solid minerals sector is the Nigerian Mineral and Mining Act, 2007 and it’s accompanying legislation, 2011.That is about  seven to eight years ago. Section 34 of the  Act provides for the establishment of Solid Minerals Development Fund. The funds were meant to attract  investors both  local and International into the solid minerals sector of the economy. Till date, this section of the Act is not considered by the government.

    Secondly, I will advise the government to consider  the creation of another  company  like the defunct Nigerian Mining Corporation. The company can be equipped with the identified restricted mining areas as assets for the start.  If government feels that it is important to retain the Nigerian National Petroleum Corporation (NNPC), what stops it from retaining same provision in the Solid Minerals Sector. Equally, I will use this opportunity to call for the amendment of the Nigerian Mineral and Mining Act, 2007 to reflect the gender participation in the sector.

    What do you mean by this?

    You know that gender is the number five issue on the Millennium Development Goals (MDGs). The Mining Act of many developed countries of the world, including South Africa, Canada and the United States  made provisions for the employment of certain percentage of women in the mining sector before Mining Licenses are granted to mining companies. Nigeria is a signatory to this protocol to the extent that we domesticated in the country. It is now part of our municipal laws, we now have Sustainable Development Goals, why can’t we strive to ,meet up with this gender provision of the law? That is my view. And remember, President Muhammadu Buhari assured the United Nations  in his recent address to the world body that Nigeria will realise all the 17 goals of the MDGs before 2030 and this gender issue is one of them so ,let us start with it.

    You hail from Bauchi State. What is your assessment of Gov. Mohammed Abubakar’s tenure so far?

    Observers have rated  him beyond an average. He  started receiving this commendation from the Chairman of the Melinda and Gates Foundation, in a letter he has written to him personally  dated  February 7,  2016. When he came on board, the state civil service was comatose, now he has restored sanity to  the system. Workers salaries are now paid as and when due. He is now owing only  one  month as a result of the state treasury garnisheed  by the courts last two months in favour of the counselors that served the state during last administration.  Despite the cash crunch, he has just approved the construction of additional 172 new roads in the state and that action alone will generate more than 200,000 jobs directly and indirectly for youth. Of course this is a remarkable achievement. The state’s  renowned  means of Internally Generated Revenue ( IGR)  which is tourism is now revamped to  meet international standards. In fact, the last progressives governors meeting  was held in Yankari park. This is to tell you the level of security and condition of the place. I can only urge him to do more in the solid minerals sector. The state should consider itself as a private player in the sector too.

  • ‘CCB’s clearance vindicates Buratai on Dubai asset’

    The issuance of certificate of assets verification and clearance to the Chief of Army Staff (COAS), Lt. Gen Tukur Buratai, by the Code of Conduct Bureau (CCB) has put to rest the controversy over his alleged acquisition of property in Dubai, United Arab Emirates (UAE), a lawyer, Ugochukwu Osuagwu, has said.

    Osuagwu, a rights activist, said the certificate implied that Gen. Buratai has complied with laws on assets declaration and is exempted from any liability for criminal prosecution.

    The CCB, in a statement by its Chairman, Sam Saba on September 29, named Buratai among 15 public officers, whose assets had been verified and issued with the “certificate of conference verification and filed verification.”

    Saba was quoted to have said: “Even though the tribunal (Code of Conduct Tribunal) is the institution with the power to adjudicate in asset declaration breaches, the certificate means that from our own end, we are satisfied with the verification that we have done.”

    Osuagwu, who noted that Buratai had set a good example by being the first army chief to direct his officers to declare their assets, said he (Buratai) first declared his assets in May 2015 while he was the Commander, Multinational Joint Task Force. He declared again in July 25 following his appointment as the COAS, Osuagwu added.

    “It is interesting to note that Gen. Buratai, who was previously cleared by the CCB, has again been cleared after the CCB completed its verification of asset declaration of Lt Gen Buratai by its officers.

    “Note that upon satisfactory completion of the exercise, public officers are issued with certificate of assets conference verification/filed verification as the case may be. With the issuance of satisfactory verification to Lt Gen Buratai, it therefore closes every chapter on the vexed issue whether he declared the said Dubai flat.

    “For a serving public officer to be cleared twice by law enforcement agencies, it shows that Gen. Buratai is a clean officer and has nothing to hide,” Osuagwu said.

    Osuagwu said he had earlier this year, acting under the Freedom of Information Act (FOI) 2011, demanded for the contents of the assets declaration form completed and submitted to the CCB by Buratai.

    He added that the CCB responded in a letter dated July 11, 2016, signed by Mrs. Ijeanuli Arinze Ofor, with reference number:” CCB/Hq/671/G/1/6″ to the effect that the COAS  declared the Dubai property.

  • Lalong congratulates Obaseki

    Plateau State Governor Simon Lalong, a lawyer, has congratulated the Edo State Governor-elect Mr. Godwin Obaseki on his victory.

    He described the election as a victory for progressives.

    In a statement by the Director, Press and Public Affairs, Mr. Samuel Emmanuel Nanle, the governor urged Obaseki to use his wealth of experience to take Edo to greater heights.

    He urged the governor-elect to  build on the foundation laid by outgoing Governor Adams Oshiomhole.

    “Governor Lalong, while congratulating the governor-elect, admonished the Peoples Democratic Party (PDP) candidate, Pastor Osagie Ize-Iyamu, his party and supporters to accept the result as an open acclamation of the people of Edo State to remain a part of the change mantra.

    “He, however, advised that the PDP is at liberty to test within the ambit of law the credibility of the election which has widely been adjudged to have been acceptable, free and fair in compliance with the provisions of the Electoral Act.

    “He concluded by praying for God’s guidance and wisdom for the Governor Elect as he assembles his team to provide qualitative leadership to positively make impact on the lives of the people of Edo State,” the statement added.

  • Lagos seeks end to gender violence

    Lagos State has advocated a stronger action against sexual and other forms of gender-based violence.

    Through the Domestic and Sexual Violence Response Team (DSVRT), the state government is battling all forms of gender abuse.

    Commissioner for Science and Technology, Mr. Olufemi Olubiyi, restated the state’s commitment to ending sexual violence while speaking during an “Evening of Arts and Commendation Ceremony” organised by DSVRT.

    The event was part of activities marking the end of a month-long campaign against gender-based violence.

    “Sexual and gender-based violence are vices we must courageously eliminate in our society. We cannot continue to witness the victimization of our women anymore. They are dehumanizing, traumatizing . They are leaving our women psychologically imbalanced.

    “We all must agree that the time for complacency is long gone. The silence associated with violence against women and children are well on the way to being broken,” Olubiyi said.

    The Commissioner, who represented Governor Akinwumi Ambode, lamented that the evil associated with domestic and sexual violence against women and children is assuming a frightening dimension.

    He the state would continue to sensitise and educate people about gender based violence.

    “We shall continue to promote and ensure the right and welfare of the most vulnerable in our society are adequately protected and implemented and work towards achieving the desired goal irrespective of gender,” he added.

    Chairman of the DSVRT and Lagos Attorney-General, Mr Adeniji Kazeem, represented by the Solicitor-General, Mrs. Funlola Odunlami, reiterated the government to ensure that all perpetrators of gender based violence face the wrath of the law.

    Highlight of the “Evening of Arts and Commendation Ceremony”  was the use of painting and drawings by final year students of Yaba College of Technology and  two stage plays by the Kininoso Concept Troupe to campaign against sexual and domestic violence against women and children.

  • Police in Amnesty’s dock for alleged torture

    Police in Amnesty’s dock for alleged torture

    Global watchdog Amnesty International (AI) has accused the police of using torture and other inhuman treatment to extract statements from suspects. The police deny the allegation, saying AI has never seen anything good in them. In this report by ERIC IKHILAE, lawyers call for strengthening of existing measures to curb rights violation.

    GLOBAL watchdog Amnesty International (AI) has stirred the hornet’s nest with its report which accused the police of torturing robbery suspects. In the report entitled: “You have signed your death warrant: Torture and ill-treatment by Nigeria’s Special Anti-Robbery Squad (SARS)”, AI examined Special Anti-Robbery Squad (SARS) operations in Awkuzu (Anambra State), Enugu and Abuja (the Federal Capital Territory).

    The report noted that despite the global condemnation of torture, the Nigeria Police were still using it. In the report released in Abuja, on September 21, the group’s researchers found that male and female detainees were tortured and ill-treated to extract information and confessions.

    The researchers found that major victims of torture in police custody were poor awaiting trial inmates, who could hardly afford to hire lawyers.

    But the police have since faulted the report, saying their men do not torture detainees. Besides, Commissioner of Police in charge of Federal SARS, Dibal Yakadi, said his men were ready to operate within the law.

    Police spokesman Deputy Commissioner (DCP) Don Awunah described the report as misleading and a misrepresentation of facts, unverified accounts and absolute distortion of the state of SARS.

    “The report is evidently the characteristic mindset and pattern of Amnesty International to deride and castigate public institutions, especially in developing countries like Nigeria,” Awunah said.

     

    The case against the police

    Despite the police denial, many are convinced that policemen apply brute force and crude methods in their investigations.

    A report released in 2007 by the United Nations’ Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, said the use of torture was widespread in police custody in the country.

    It added that torture was “particularly systemic in criminal investigation departments and formed an intrinsic part of police operations, especially in the extraction of alleged confession.”

    Also, a report entitled: “Killing at will: Extrajudicial executions and other unlawful killings by the Nigeria Police,” released by AI in 2009, detailed how police personnel abuse Force Order 237 to “commit, justify and cover up acts of torture and other forms of ill-treatment, as well as extra-judicial executions.”

    Force Order 237 refers to the police’s Rules that guide the use of firearm, which provides for much wider scope for the use of lethal force than is permitted under international law and standard.

    Critics argued that apart from these documented reports, there are tales told daily by victims that put a lie to continued denial by the police. They further argued that even where physical torture is not applied, the practice of detaining suspects in inhuman conditions, over-crowded cells where inmates are denied food and healthcare are other forms of torture.

     

    Torture under the law

    According to experts, torture constitutes a gross violation of human rights; it is prohibited in the country, and its illegal status is reflected in several enactments.

    Besides several international instruments against torture, there are many local laws that frown against its use, particularly as an investigative instrument.

    Some of such international instruments include the United Nations Convention Against Torture (UNCAT), Article 7 of the International Convention on Civil and Political Rights (ICCPR), the African Charter on Human and People’s Rights (ACHPR), the Robben Island Guidelines for the Prohibition and Prevention of Torture in Africa (RIG), among others.

    Sections 34 and 35 of the Constitution frown against torture. Section 34 states: “Every individual is entitled to respect for the dignity of his person and accordingly, no person shall be subjected to torture or inhuman or degrading treatment…” Section 35 provides for the right to personal liberty, to the effect that any person who is arrested or detained in relation to an alleged offence, possesses the right to remain silent or avoid answering any question until he/she consults with his/her lawyer or any person he/she desires.

    The intention is to prevent where suspects are compelled by security agents, through torture or other forms of ill-treatment, to make statements.

    The constitutional provisions in sections 34 and 35 are  strengthened by laws such as the Evidence Act (2011), Administration of Criminal Justice Act, Criminal Procedure Act and the Criminal Procedure Code.

    Section 29(2) of the Evidence Act (EA) renders inadmissible (at trial) any statement obtained through torture, threat or intimidation. It provides that only confessional statement freely made without any form of inducement, threat or undue influence could be admitted in evidence.

    In most instances, the court conducts a trial-within-trial to ascertain the voluntariness or otherwise of a statement where there is a dispute between the defence and prosecution over whether or not the statement was voluntary.

    The Administration of Criminal Justice Act (ACJA) 2015, as a way of addressing the problem of torture, provides in Section 8(1) that criminal suspects must be accorded humane treatment, having regard to the dignity of the person, and must not be subjected to any torture, cruel, inhuman or degrading treatment.

    The Criminal Procedure Act (CPA) in sections 124 and 126, and Rule 9 of the Statement of the -Officers Rule (1960) provide how the police should obtain statements from suspects or witnesses and do not allow the use of threat, torture or inducement to influence statements.

    The Criminal Procedure Code (CPC) also contains similar provisions in sections 4, 9, 17 and 19 to the effect that no person arrested on suspicion of commission of crime should be subjected to any form of ill-treatment, including detention in inhuman conditions.

     

    Existing measures against torture

    In recent past, the Federal Government has initiated some measures to curb incidence of torture in detention facilities by the police and other security agencies.

    Some of these include the creation of the National Human Rights Commission (NHRC), the Public Complaint Commission (PCC), the National Committee Against Torture (NCAT), Police Service Commission (PSC), Police Council, among others.

    For instance, the NHRC is authorised, under the NHRC Act 2010, to visit any detention facility in the country to investigate any case of human rights violation, to summon persons and to award compensation, enforce its decisions.

    The NCAT also has the powers to visit detention facilities and investigate complaints of torture. The PCC is empowered to receive and investigate complaint about the conduct of public officers and state’s agents.

    On its part, it is the responsibility of the PSC to, among others, ensure discipline among its personnel. It combines this also with the task of formulating guidelines and policies regulating appointment, promotion and discipline in the Nigeria Police Force.

    Outside these institutional measures, the court also provides remedy to victims of torture, who are allowed to sue for compensation.

     

    Why torture persists

    Experts are of the view that the deployment of torture as a major tool of trade by security agents, particularly the police, still persists despite existing measures, owing to their evident inadequacies.

    The AI noted that the failure to ensure prompt, effective and impartial investigation into allegations of torture by police, in violation of explicit provisions of other local and international laws, fuels the climate of impunity where those who commit such violations persist without fear of being held accountable.

    “Many of the reports of torture brought to AI’s attention were not investigated by the police authorities, the PSC or NCAT. When AI met with the Chairman of the PSC in April 2016, he said though they are authorised to investigate SARS activities, they have to send the findings of their investigations back to the IGP,” the report said.

    It added that, in cases where torture was proved, the police authorities transfer the identified culprit out of the station where he/she committed the violation to frustrate the victim’s steps for redress.

    In addition to this, police personnel also find ready shield in Force Order 237 (the manual of guideline for the use of force and firearms by police officers), which the AI noted, is also frequently abused.

    As part of its reform efforts, the NPF held a training session between July 21 and 23, last year, where it examined a draft proposal for the review of Force Order 237. The then IGP, Solomon Arase, had while addressing the session, stressed the need for the police to modify it operations to avoid cases of rights violation.

    But, despite his stated commitment to the review of the law on the use of force by the police, it is not in public domain that Arase endorsed the reviewed Force Order 237, produced with the support of some international agencies, for use before he left office.

    Also, despite its powers to investigate and penalise rights violation, the NHRC has not been very successful in the execution of its mandates either. The public is only informed of the constitution of investigation panels in relation to cases of rights violations, the reports are hardly made public.

    Where awards are made, as was the case of the killings of eight individuals in Apo, Abuja by security agents in 2014, payments are not effected by culprits, who are mostly state’s agents.

    It is also argued that security operatives mostly escape liability for established cases of torture by leaning on the Public Officers Protection Act, which prohibits the institution of cases against public officers or institutions after three months of the action complained about.

    The law, particularly in Section 2(a) provides: “Where any action, prosecution or other proceedings is commenced against any person for any act done in pursuance or intended execution of any act or law or of any public duty or authority or in the execution of such act, law, duty or authority, the following provision shall have effect: The action, prosecution or proceedings shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof.”

    Chairman, Nigerian Law Reform Commission (NLRC) Kefas Magaji, at a workshop on the reform of the Public Officers Protection Act, faulted the continued retention of the law which he said is 100 years old.

    “Besides the historical antecedents, the main problem of the act is the special protection it accords public officers (now including public institutions) which requires that an action against a public officer, if not instituted after three months from when the cause of action arose, is statute-barred.”

    Despite its inherent inadequacy, the law is yet to be repealed or amended. It was learnt that a draft Bill prepared by the NLRC last year has since been submitted to the Attorney General of the Federation (AGF) for onward transmission to the National Assembly, but without result yet.

    Observers also blame the persistent incidence of torture on the failure of the country to criminalise acts of torture. They argue that where individual perpetrator of torture and other inhuman treatments are subjected to criminal prosecution would serve as a better deterring measure.

    They noted that the current practice where victims of proven cases of torture are only entitled to financial compensation, which is mostly defrayed by the employers of culprits, is inadequate.

     

    Safeguards against torture

    Law experts, including Sebastine Hon (SAN), Joseph Nwobike (SAN) and Mahmud Magaji (SAN), said there was the need to improve on existing measures to allow for a reduction in torture cases.

    They suggested the need for existing institutions, like the National Human Rights Commission (NHRC), Police Service Commission (PSC), among others, to be made to play their roles as required rather than existing in name alone.

    Experts call for the urgent passage of a bill to criminalise acts of torture. They urged the Federal Government not to allow the suspension, under any circumstances, of the existing safeguards for the prevention of torture and related inhuman treatments.

    Hon, Nwobike and Magaji suggested the strengthening of existing anti-torture mechanisms, and the need for victims to explore available remedies to deter future occurrences.

    In addition, Hon said: “As a remedy, a defence lawyer need to be at alert. He can sue the police officer, who tortured a suspect personally, while his/her employer, the Nigeria Police Force, could answer vicariously for such an act.

    “The police high command should be objective in addressing complaints against its men who engaged in such dastardly act. If they fail to do so, the Public Complaint Commission is there. The National Assembly is also there.  Because, I believe if an example is made of a policeman or an officer, they will put their acts together,” Hon said.

    Nwobike advised victims to always avail themselves of available remedies including suing for damages to serve as deterrence. He noted however that not all cases of application of force by security agents should be condemned because circumstances may require the deployment of unconventional methods. He cited the reported cases of tortured deployed by United States’ agents against terrorist suspects in Guantanamo Bay.

    Magaji added that continuous training and enlightenment for security agents, particularly the police on issues concerning human rights, will go a long way in reducing incidents of torture and other ill-treatments.

  • Firm seeks N20b from businessman over Abuja land dispute

    Firm seeks N20b from businessman over Abuja land dispute

    A firm, Bedding Holdings Limited (BHL), and its Chief Executive Officer (CEO), Sylvester Odigie, have sued a businessman, Alhaji Dahiru Barau Mangal, and his company, D. B. Mangal Nigeria Limited, at the the Federal Capital Territory (FCT) High Court.

    The plaintiffs are demanding over N20 billion for alleged loss of business.

    Mangal, his company, the FCT Minister, Federal Capital Development Authority (FCDA), Jimec Company Limited and Matterson Properties Limited – owned by ex-Information Minister, Emeka Chikelu, are the defendants.

    The plaintiffs are seeking compensation for alleged losses following false allegation of fraud made against them to the Economic and Financial Commission (EFCC) by Mangal and his firms over a 2005 land deal.

    In their statement of claims, the plaintiffs stated that BHL, in 2005 sold Plot 527 Cadastral Zone A7, Wuse District of the FCT to Mangal and his company through their lawyer, Messrs Shehu Wada and Co., at N125 million.

    The buyers, they added, paid for the land on October 26, 2005 following the outcome of their searches at some agencies, including the Department of Land Administration and Resettlement of the FCDA.

    The plaintiffs said some months after the transaction when Mangal and his company wanted to begin development, they learnt that the FCDA had reallocated the plot to Chikelu and his firms.

    Mangal and his firm demanded a refund from BHL, the plaintiff averred, stating that, in its bid to recover the land for Mangal and his company, BHL sued the FCT Minister, FCDA, Mangal and two companies owned by Chikelu, in a suit marked: FCT/HC/CV/1074/2006.

    The plaintiffs added that despite the pendency of the suit, the EFCC, following a petition by Mangal and his company, arrested and detained Odigie from May 22 to July 12, 2006, following which he was arraigned before Justice Abubakar Umar of the FCT High Court for allegedly obtaining money under false pretence.

    Justice Umar struck out the case on January 27, 2009 for want of diligent prosecution. Justice Ishaq Bello (also of the FCT High Court) later upheld Odigie’s fundamental rights enforcement suit, under which he challenged his detention by the EFCC for 57 days.

    Justice Bello, in a January 15, 2009 judgment, declared EFCC’s conduct illegal, awarded N3million damages to Odigie, ordered the commission to apologise to him publicly and restrained the agency from further harassing, inviting or arresting him over the land deal.

    The plaintiffs stated that while Odigie was in custody, the FCT Minister, upon Chikelu’s intervention, allocated plot 1405 Zambezi Crescent, Off Aguiyi Ironsi, Zone A05, Maitama to Mangal and his company as compensation for the plot BHL sold to them, but which was wrongly revoked and allocated to Chikelu’s firms.

    They said, at a point, Chikelu, who claimed to have spent about N300million in the development of the Wuse plot, appealed to them to withdraw the suit challenging the purported revocation of BHL’s right to Plot 527 Cadastral Zone A7, Wuse District.

    The plaintiffs stated that, on realising that Mangal and his firm had been compensated with “a bigger” land, BHL acceded to Chikelu’s request and withdrew its case in April 2014 after Chikelu paid BHL N150million as cost of the suit and lawyers’ fees among others, in line with the agreement signed by parties as condition for them to discontinue the suit.

    Odigie and BHL, said they were surprised that after withdrawing the suit, Mangal and his firm came back to demand a refund of what they paid for the Wuse land on which Chikelu’s firm has erected a shopping mall called Omega Centre.

    The plaintiffs said they were willing to refund the N125million, but on the condition that Mangal and his firm give up Plot 1405 Zambezi Crescent, Off Aguiyi Ironsi, Zone A05, Maitama (on which Mangal has now erected a shopping mall called Murjanatu House) which was allocated to Mangal and his firm as a replacement for the Wuse land.

  • ‘Why building laws need review’

    ‘Why building laws need review’

    Lady Edith Uduji is an associate partner at Synergy Attorneys, a Lagos law firm. An expert in property law, she tells JOSEPH JIBUEZE her views on the Land Use Act and how to tackle building collapses through law.

    Do you think the Land Use Act should be abolished?

    I don’t believe that the Land Use Act should be abolished. I believe it should be reformed. Issues such as governor’s consent, compulsory acquisition of lands and compensation should be reviewed.

    Most of buildings don’t have title documents. What is the legal implication of this?

    The lack of title documents inhibits the property owner from dealing freely with his property. For instance, if you want to borrow money from bank or use it as collateral, you cannot. It shows you don’t even have full right over the property. You cannot give what you don’t have. It is the document that shows you are the rightful owner of that property, so when you don’t have a title document to your property, it limits your rights. In Lagos, if your building collapses, and you don’t have documents showing you’re the rightful owner, the government will acquire it. It is as bad as that.

    How well do you think the National Building Code of 2006 has been implemented?

    It appears the relevant professionals and stakeholders do not appreciate the objectives of the National Building Code and have not effectively utilised it well enough for the country to enjoy the inherent benefits. Given recent happenings, the need to review our building laws has become more compelling.

    Who is liable in law for a building collapse?

    It largely depends on the facts of each incident upon investigation. Legal roles or responsibilities of all building and construction control agencies, managers or those who monitors the activities of companies, developers as well as the existing regulatory laws must be considered and the risks to be taken care of must be considered as well.

    Can the laws stop collapse of buildings?

    The collapse of buildings cannot be blamed on lack of proper laws. Rather, it is due to the lack of adherence to the laws. In some cases, they are based on human factors which includes lack of regulated oversight compliance, poorly designed foundations, human activities on buildings, contractors cutting corners and services of unqualified support professionals. I believe it is time to apply the full weight of the law to sanction against building collapses.

    What is your workshop on Legal Due Diligence on Building and Construction about?

    Due Diligence in this context refers to the set of information on all the stakeholders in the industry are expected to have obtained and investigated before embarking on Construction. In any area of project management, there must be due diligence conduct. But the one that is central to the workshop is the legal due diligence. We want to come up with a due diligence checklist at the end of the workshop so that if you are embarking on building and construction you have your due diligence checklist to guide you to reduce the risks that you are exposed to and to become more competent. At the end of the workshop we should have been able to address the significant but often neglected compliance gaps in building project conceptualisation and execution that leads to the incessant building failures and collapse experienced in contemporary Nigeria. We would have also addressed the shortcomings observed in the entire gamut of building and construction industry and to also generate a compendium of easily accessible report for industry stakeholders and regulators.

    Who is the workshop designed for?

    The workshop is not meant for lawyers alone. It is a workshop that will cut across different professions, such as construction, civil engineering, building contractors, banking, insurance, design contractors, real estate, surveyors, architects and others involved in this industr. We are also looking for a very defined audience of about 60 participants but if the demand is so high there might be a repeat much later.

  • Lalong to advisers: help protect citizens’rights

    Lalong to advisers: help protect citizens’rights

    Plateau State Governor Simon Bako Lalong has urged his advisers to protect citizens rights.

    He said the quality of their advice would reflect on the people’s lives.

    Lalong spoke while swearing in new special advisers.

    They include Patrick  Damian, Special Adviser for Finance and Investment,  Dan Bitrus Manjan (Media and Public Affairs),  Madaki Luka (Agriculture and Rural Development) and Nanvel Ninfel.

    The governor expressed hope they would add value to the state.

    “These set of Advisers that have been sworn in have no doubt earned their place, having served meritoriously in their various professional callings.

    “I am not unmindful of the fact that expectations are high from the array of professionals our state is endowed with. The several pieces of advice I have received from Senior Citizens of the state bears eloquent testimony to the fact that, we are running a government that is people-oriented and people-monitored,” he said.

    Lalong vowed to sustain consultative dialogue with different stakeholders.

    “As we do this, the avenue for exchange of ideas and the advancement of suggestion on best practices, for the delivery of the highest and best good of democracy to the generality of our citizens will be guaranteed.

    “We are further not reneging on our plan to constitute and inaugurate the Elders Advisory Council, as a non-statutory body that will add value to the act of governance.

    “This body is only awaiting the constitution of the Team of Special Advisers to be formally unveiled. This is what we are witnessing today, and we will strategically be expanding the Team of Advisers to meet up with what has been approved by the House of Assembly in the course of time.”

    He solicited the people’s support, saying his administration would not disappoint them.

    “May I use this opportunity to plead with our people to continue to keep an abiding faith with our government; the times are no doubt hard, and the reality of the adjustments we have to make are not doubt tasking.

    “We are not responsible for the challenges we are facing now, but as a responsible government, we are committed to fixing it.

    “This, however, demands patience, because just like for every seed planted, there is a waiting gestation period before the harvest.

    “We are doing our best to ensure that the wealth of opportunities and resources we have identified are fully exploited, so we can improve the quality of life of our citizens.

    “We will ensure that the social safety nets that will cushion the effects of the present economic recessions are strengthened, and that we continue to obligate ourselves to opportunities for wealth creation.

    “Be rest assured we will get out of the woods, and together we will reap the benefits derivable from the mandate you have given us,” Lalong said.