There is this common tale that many young Nigerians,who enrolled at the Nigeria Defence Academy in the late 1980’s and1990’s,did so with the hope that one day they would participate in a coup, and then they can be appointed a military governor or to other political office. Such was the belief then,that military rulewas routine in Africa, and considering the corrupt enrichment of many military officers serving in political positions then; military career was considered one surest way of securing financialsecurity. However, with the collapse of the cold war, military adventure in politics turned an international pariah, and Nigeria like the rest of Africa, has no option than to behave itself.
Now, it is believed that such Nigerians who nurse the ambition to get-rich-quickly,by raiding the public treasury, have turned to politics as the route to that Eldorado. Probably because the elective executive positions are limited in number, there is the likelihood that the preponderance of the gold diggers, now aggregate in the legislature. So, while the executive may have direct control over the application of public funds, and could help themselves more than the legislature, there is a higher number of elected legislative officials chasing after public funds, for bad.
So, the fact that there are many elected officials angling for a kill in the legislative arm,makes dealing with them a lot more difficult and unwieldy. In the states for instance, once the executive governor is happy, he has the powers to whip the rest of his executive gang into line. The same is also applicable to the presidency. On the other hand, to get the legislature on one’s side for any deal, a minimum of half of the number of the legislators, plus one, is needed. In the case of the Senate made up of 109 members, to have a deal, one needs at least 55 senators. For the House of Representatives which has 360 members, the deal breaker, is 181 legislators.
Of course, each senator or representative has his or her own idiosyncrasies, weaknesses and strong points, among other variables.To wield those variables to achieve any goal, is the challenge of any political actor, who must under the law, deal with the legislators in a democracy. Most likely because of this plurality of interests in context, the legislature is acknowledged as the bastion of democracy and the common will of the people. This philosophical underpinning, may well be the reason why the legislature is consideredsuperior to the other arms of government, in any constitutional democracy.
Under the 1999 Constitution, the legislature is therefore given pre-eminence over the other two arms of government – the executive and the judiciary.It is the legislature that makes the laws that the executive, executes, and which the judiciary, interprets. Again, it is the legislature that has the control over public funds, which include the power to determine expenditure from the consolidated revenue fund, as provided in section 162 of the constitution. The legislature also has the powers to oversee executive performance, monitor the public expenditure and where it considers it expedient, to sack the executive.
Considering the enormous powers of the legislature, the executive authority whether at the state or the federal level, usually get interested in what goes on in the legislature. That interest includes, influencing the legislators, in their choice of who leads them. This was particularly noticeable under former President OlusegunObasanjo’s regime, from 1999 to 2007. The result was a high turnover of senate presidents as well as speakers of the House of Representatives. In practice, many support that interference, while others consider it as disastrous for democracy.
With the ubiquitous powers of the legislature,the All Progressives Congress (APC) and the President-elect, Mohammadu Buhari,considering the high expectation from the electorate, should be interested, in who heads the two arms of the National Assembly. But how can the President-elect successfully do that, without giving himself away as dictatorial, or one who has no respect for the doctrine of separation of powers; which is fundamental in presidential democracy. Again, if he gets involved and his preferred candidate fails, he would be a target for blackmail, each time he disagrees with the leadership of the Senate or the House that he never supported.
Considering the austere involvement of the President-elect as a wheeler-dealer in the past 16 years of our democracy, he may also find it difficult to surreptitiously influence the choices, without clearly showing his preferences.But the President-elect needs all the support from the national assembly, if he hopes to make a success of his tenure; even when many of the legislators see their election as an opportunity to deal with their personal poverty, foisted by past corrupt and ill-mannered politics. Where the President-elect and his party are unable to gain their preferred candidate as heads in the senate and the house, the challenge would be how to convince the legislators to amend their financial expectations as legislators.
I guess the option open to the President-elect is to exploit his national anti-corruption stature, in dealing with whoever emerges as the President of the Senate or Speaker of the House of Representatives.He must set the minimum standard of engagement from day one, and insist on that template without any waiver. If he does, he may lose a few weeks of paralysis in the dug-out; but gain a standard for the rest of his tenure. Of course, the members in the two houses would not have the courage to contemplate an impeachment, in the early months. The alternative is for Buhari to learn to be a wheeler-dealer for the next four years, with its disastrousconsequences, for our country.
A University Don Professor Aloysius Ihuah, and member of the State House of Assembly, Mr Benjamin Adanyi, have sued the state government under Governor Gabriel Suswam over last minute employments, appointments, and sale of government property.
In separate writ of summons filed by Prof. Tony Ijohor, a Senior Advocate of Nigeria, SAN, Professor Ihuah, of the Benue State University and Minority Leader of the state assembly, Mr Adanyi are praying the Makurdi High Court to restrain the state government from employing 4,500 workers and making further last minute appointments.
Professor Ihuah averred that as a public servant duly employed by the state government, he has not been paid his salary for the past three months while other workers have not been paid for over five months yet the government was seeking to employ over 4, 500 staff and further compound the situation.
He stated that the first defendant has also concluded arrangements to lease some state owned companies including the Benue Fertilizer Blending and Chemical Company Limited, adding that the actions would put the state into more difficult financial state.
According to the plaintiff, the current market value of the Benue Fertilizer Blending and Chemical Company with its machinery, warehouses and other facilities is above N200 billion while the current market rate of leased properties such as the plant is N250 million per annum, pointing out that it was being leased out to a crony at a give away N2. 5 million per annum.
The Minority Leader of the state assembly said the appointment of some members of the Local Government Service Commission whose appointments Governor Suswam sought to replace or reappoint had not expired and sought the court to restrain the governor from carrying out the action.
Also joined in the suits is the Attorney General of the state while AT & S, the firm that has been earmarked as a beneficiary of the lease has been joined in the suit challenging the lease.
No date has yet been fixed for hearing of the motions in respect of the cases.
A Lagos State High Court sitting in Epe has assumed jurisdiction over the suit filed by Homeowners within the Pearl Garden Estate situated at Sangotedo Village in Eti-Osa Local Government Area of the state against a property developer, Oyetubo Jokotade Estate Resource Limited.
The claimants had sued the property developer before the court over alleged incessant harassment and imposition of arbitrary charges.
Joined as second defendant in the suit is CMB Building Maintenance and Investment Company Limited, which is in charge of providing estate management services.
The N100 million suit was instituted by Messrs Francis Adesuyi, Felix Obiakor, Martin Ajayi-Obe and Peter Afenotan on behalf of themselves and all interested homeowners within the Pearl Garden Estate.
The trial judge, while assuming jurisdiction over the suit, dismissed the defendants application which prayed for the matter to be referred to arbitration.
The judge in his ruling, held that the defendants had already taken certain steps in the suit which had conferred jurisdiction on the court.
Justice Bashua also fixed June 15, 2015 for hearing of an interlocutory application dated February 19, 2015 which was filed by the claimant’s counsel, Mr Adeyinka Adeyemi.
He directed the defendant’s counsel, Mr. Gabriel Uwaifo, to file his reply in order for the court to hear arguments on the said application.
In the application, the claimants are asking the court for an Order of Interlocutory Injunction restraining the defendants and their agents from harassing or restricting the movement of the homeowners within the estate, pending the hearing an determination of the substantive suit.
They also asked for:”an Order of Interlocutory Injunction restraining the defendants and their agents from interfering with the rights of the homeowners in providing safe and drinkable water for themselves and their family members, pending the hearing an determination of the substantive suit.
“An Order of interlocutory injunction restraining the defendants and their agents, further demanding or collecting reticulation charges in the sum of N650,000 or any other sums from the claimants contrary to the express terms of the Deeds of Assignment and the Sale and Management Agreement, pending the hearing an determination of the substantive suit.”
The claimants further asked the court to restrain the defendants and their agents from further collecting the unilaterally imposed N35,000 fee from the homeowners, pending the hearing an determination of the substantive suit.
A Federal High Court in Lagos has restrained Attorney-General of the Federation, National Petroleum Investment Management Services, (NAPIMS) Nigeria Content Development Monitoring Board, (NCDMB), Samsung Heavy Industries Nigeria Limited (SHINL), and Total Upstream Nigeria Ltd, and their agents from implementing the Floating Production Storage and Offloading Unit (FPSO) contract. The FPSO is in the Egina Field within OML130. The order will subsist pending the determination of the substantive suit.
The court also restrained the defendants and their agents from implementing the contract either
Justice Okon Abang gave the order after listening to the opposing counsel.
In an affidavit sworn to by the plaintiff, Mr John Iyene Owubokiri, had averred that the scope of Egina FPSO oil field which is expected to produce 200,000 barrels of oil per day as stated by SHINL is expected to create 50,000 jobs, saying this is strategic to the future.
Owubokiri averred that there are established guidelines by the Nigerian National Petroleum Corporation (NNPC) for tendering and awarding of fabrication projects in the oil and gas industry. These guidelines were not complied with in the award of the Egina FPSO to Samsung,he alleged, adding that there were breaches of extant laws in the contract award. The defendants breached provisions of the Nigeria Oil and Gas Industry Content Development (NOGICD)Act 2010 and relevant laws guiding the fiscal regime of the oil and gas industry.
The NOGICD Act stipulates that NCAMB should supervice, coordinate, monitor and implement the local content plan in the oil and gas industry. It shall also approves advertisement, qualification criteria, technical bid document, technical evaluation criteria and the proposed bidders list in bids for project in excess of $1 million. The Egina FPSO contract is worth $3,143,499,498.
Owubokiri claimed that Total Upstream covert launch by its call tender without approval of technical stage and commercial template broke the law, standard practice and the established process for tendering in the oil and gas industry.
The establishment of a fabrication yard in Bayelsa State was part of the local content plan by Samsung to get the award contract, he averred, adding that this could have created thousands of job, enhanced transfer of technology and skill acquisition for Nigerians.
But, after the contract award, Samsung, he claimed, abandoned the establishment of the fabrication yard and now plans to carry out in South Korea the fabrication work meant to be done in Bayelsa to the detriment of the economy.
In a counter-affidavit, a lawyer, Mr Olajide Oyewole, on behalf of Samsung while denying some of the plaintiff’s averments deposed that Owobokiri’s rights have not been infringed. ‘’He has not shown that he has suffered any special damage peculiar to himself apart from the public,’’ Oye-wole claimed, urging the court not to grant the plaintiff’s application.
Total Upstream, in an affidavit sworn to by its lawyer, Chidiebere Ejiofor, urged the court to dismiss the plaintiff’s application because his client is challenging the court’s jurisdiction to hear the suit. The court ought to hear and determine the preliminary objection first, before entertaining any further motion of the plaintiff, he said.
Attorney General of the Federation, NAPIMS and MCDMB did not file any response.
Justice Abang, in his ruling adjourning till Thursday, and restrained the defendants and their agents from implementing the contract.
Guarantee Trust Bank (GT Bank) has appealed against the judgment of a Federal Capital Territory (FCT) High Court , Abuja, which ordered it to pay the sum of N5,240,516,186.21 to an Abuja based lawyer, Dr Ted Isegholi Edwards.
Justice Valentine Ashi of the FCT high court gave the order after considering the submissions of counsels to the applicants and defendants in an application brought by Edwards against the bank.
In the notice of appeal filed before the Abuja division of the Appeal Court, , the bank through its counsel, Chief Anthony Idigbe (SAN) stated that the first respondent has no locus standi to institute the suit as constituted and has not disclosed a reasonable course of action against the appellate (GT Bank)
The appellate also argued that the lack of locus standi and/or reasonable course of action on the part of Dr. Edwards robbed the trial court the jurisdiction to entertain the suit and therefore all proceeding conducted without jurisdiction is a nullity.
The bank stated further that the judge erred when he held that the appellate (GT Bank) has not disclosed a prima facie defence to the first respondent’s suit.
The appellant is therefore seeking an order of court allowing the appeal and setting aside the judgment of the lower court made on Monday, May 18, 2015.
The bank is also seeking an order remitting the matter suit N0 FCT /HC/CV/939/15 to the Chief Judge of the Federal Capital Territory for transfer to another judge of the FCT, Abuja for retrial.
Apart from the notice of appeal, the bank is also asking for an order of the Appellate court staying execution of the judgment of the lower court delivered on Monday May 18, pending the determination of its appeal filed at the Court of Appeal against judgment of the lower court.
The bank submitted that the trial judge erred when he held that he has jurisdiction to determine the suit filed by the first respondent , Dr Edwards.
According to the bank Order 21, Rule 3 of the Federal Capital Territory High Court Civil Procedure Rules 2004 stated that where the defendant discloses a defence on the merit to a suit filed under undefended list Procedure, leave should be granted to the defendant to file its defence..
The appellate’s notice of intention to defend, the bank argued, discloses a defence on the merit to the first defendant’s suit.
It therefore stressed that the court failed to properly evaluate the affidavit evidence placed before it before reaching the conclusion that the appellate’s notice of intention to defend discloses no defence on the merit of the first respondent’s suit.
No date has been fixed for the hearing of the applications.
Justice Ashi, had in a judgement delivered Monday May 18, 2015, in a suit filed by Dr. Ted Isegholi Edwards against the Central Bank of Nigeria (CBN), Mr. Jonah Otunla, the Accountant General of the Federation, Ambassador Bashir Yaguda, Minister of State for Finance, GT Bank, Anaocha Local council in Anambra State and Incorporated Trustees of Association of Local Government of Nigeria (ALGON) ordered GT Bank to pay the plaintiff the sum of N5,240,516,186.21, for debiting the Plaintiff’s account without his consent.
The judge who struck out all the other defendants apart from GTB bank for lack of jurisdiction and ordered the bank to pay 21 per cent interest per annum on the judgment sum of at the prevailing interest rate whichever is higher calculated from December 12, 2014 up till date of judgment as well as post judgment interest of ten per cent from date of judgment until the judgment sum is liquidated.
•From left: Law Editor Vanguard Newspapers, Dayo Benson, Chairman NBA Ikorodu branch, Dotun Adetunji and former Chairman NBA Ikorodu branch, Nurudeen Ogbara at the lecture.
It is indeed a matter of immense pride and honour for me to be invited to be the guest lecturer at the 10th edition of the annual Chief B O Benson SAN lecture. If I am permitted to disclose, Chief Benson SAN is not only a shining star of the legal profession, he is an elder in and out of the legal profession that commands the awe and respect of all and sundry. A great Nigerian of high integrity, his quintessential values is best understood by way of example from an interview he granted to The Vanguard Newspaper sometime in July 2012 on the occassion of his 80th birthday when he said and I quote; ‘’Contentment prevents me from chasing dollars at 80’’. This was upon being asked why he retired from active legal service 10 years earlier. The values exemplified by the honouree throughout his career and till date of honesty, truthfulness, decency and industry are values that have as a matter of fact and common knowledge receded into history in present day Nigeria or are at best only possessed by a few Nigerians today. I recall that the honouree was President of the Nigerian Bar Association when I was in the law school in 1979/1980 and it was his comportment and leadership attributes that drew me into Bar activities. Indeed I coveted the office of the President of the NBA since then.
Those values exhibited by our honouree are values associated with a Nigeria of a not too distant past. Today, the love and lust for money and a get rich at all cost syndrome has penetrated our society and threatens to tip us i.e. what is known as Nigeria over the praecipe. How we got to this point of moral decadence and moral bankruptcy which has seen us degenerate from a country full of hope and promise to this abysmal level of socio-political and economic poverty despite our immense wealth and resources is not a matter for this discourse. However our negative and indeed degenerative status described above is a product of our political history. The journey we undertook in the past 100 years saw us metamorphose from colonialism (1914-1960) to independence when we embraced Parliamentary Democracy of the West Minster Export Model and practised politics of bitterness, deceit, avarice and disunity for six years i.e. 1960-1966. The novelty of the excesses of the political class during this period referred to caused the awakening or emergence of an unknown political monster i.e. the Nigerian military (Armed Forces) and they seized power in the year 1966, suspended the constitution and ruled by military fiat and decree from 1966-1979. During this period, the military defragmented the entity known as Nigeria from four regions to 12 states then 19 states by the time they handed over power to a civilian administration in 1979.
They also prosecuted an expensive and divisive civil war (1967-1970) at the end of which ‘a no victor no vanquished status’ was declared. The civilian democracy was terminated in 1983 by the military relying as justification on the corrupt excesses of the then NPN Government. At that time our political evolution and maturity had not reached the point where the electorate could override the corruption machinery of the political party in power as they did in the 2015 elections when all the stakeholders i.e. political overlords, the electorate, business moguls, civil society groups etc (excluding however traditional rulers, religious leaders, militant groups etc) were in agreement that it was time for the governing political party, the PDP to be sent out of the political arena. Thus in 1983, the military led by, guess who? GMB seized power and attempted to cure the ills of then Nigeria which was largely one of moral decadence through a cocktail of ethical re-orientation and anti-corruption measures albeit orchestrated and directed through the barrel of the gun.
Their efforts, sadly in my view, were cut short by another military coup d’état in August 1985 championed this time by the triumvirate of Generals’ Mohammed Babangida, Sani Abacha and Abdulsalami Abubakar who ruled in succession from that date to 1999 when power was then handed over to a retired military Head of State, General Olusegun Obasanjo who rode into power on the wings of the Peoples Democratic Party. Now, this political party the PDP held sway from 1999 to 2015 when their rule was unceremoniously cut short by the combined efforts of Nigerians as described above.
The performance of the PDP in the economic growth of Nigeria, indeed in all spheres of development i.e. infrastructure, power, transportation, political culture, probity and accountability, the legislature and to a large extent, the justice delivery system, which encompasses the judiciary, the provision of security, the creation of a level playing field for Nigerians etc was abysmally low and in these and other unspecified but strategic areas the PDP failed to deliver.
The absence of political philosophy or party ideology in Nigerian politics
Indeed, it came to light in the past 16 years that all the political parties that bestrode the political landscape like the proverbial Colossus had no political or social philosophy. No one could say what their fundamental beliefs were although it seemed their members were agreed on one point, which is that political power was an avenue to the acquisition of personal wealth and stature in the society. In established democracies the position of government on all issues is based on the historical philosophy of the political party in power or in opposition. It is not based on the principle of who stands to benefit the most financially before a policy is passed or agreed upon. The absence of principles and philosophy upon which governmental policy or actions are anchored remains the bane or albatross of our present political system. Our leaders do not possess that moral high ground from which to launch their intent and policies. Before proceeding further, who are those that must take substantial blame for this lacuna? For me, I have always been worried that the South-West of Nigeria, with its immense human resources, early exposure to western education, unparalleled economic advantage and initiative abandoned its leadership position after the departure of the generation of the great sage Chief Obafemi Awolowo SAN and his contemporaries from the political stage. It seems from all available evidence that the political first 11 in Western Nigeria has abandoned in the majority, the political stage to their mosquito team. It is clear that majority of Yoruba intelligentsia now populate areas such as banking, finance, insurance, cyber-science, law and justice, entertainment, oil and gas etc as opposed to politics. The effect of the abandonment of the political arena as described is now visible for all to see. I will return to this phenomenon when the role of violence as employed by the political gladiators is considered in this presentation.
Returning back to the thrust of this discourse, firstly, having acknowledged the fact that Nigeria has returned to civilian democracy and apparently now resolved not to allow the military to truncate our political march, it is necessary to consider whether our the foundation laid for the transition of power from one administration to the other can stand the test of time and sustain our political march as conceptualised by the 1999 Constitution.
Secondly, it is necessary to consider how the electoral umpire INEC has fared in its effort to conduct fee and fair elections in Nigeria and particular how it conducted the 2015 general elections and the flaws, if any, associated with the latter.
In concluding this part i.e. introduction it is necessary to draw attention to the fact that the topic in issue i.e. the survival of democracy in Nigeria cannot be viewed solely from the prism of the conduct of the 2015 elections by INEC. The principal bane to the survival of the democratic process or put in another way the survival of modern Nigeria is the effect of the activities of the political class on the institutions and infrastructure that sustain our national life. Consequently, it is intended in this discourse to suggest to the new Administration-elect the steps and agenda it should take having regard not only to the electorally induced problems, which in itself is substantial but also as it relates to institutional problems of leadership and governance that have afflicted Nigeria from time immemorial.
Violence and the 2015 general elections
The violence that characterised the 2015 had been predictable. Leading to E-Day, there had been violent expressions of political rivalry among stakeholders and agents of political parties leading to the use of thugs, arson, terrorism and other extreme criminal measures. It is so sad that in the year 2015, our politicians are still resorting to the same vicious tactics employed by our founding fathers in politics. The result is that the polity even post – election is still super-charged. Economic activity has been severely affected due to politics. The magnitude of insecurity arsing from political activities reached the point that government introduced elements from the armed forces such as the Army and Air Force in order to keep the peace during elections. The result showed a slight reduction in the criminal activities during elections when compared to the data from the 2007 and 2011 elections. According to the National Human Right Commission, no fewer than 58 people have been killed in election-related violence from December 3, 2014 to February 2015. In Lagos, 11 incidences were tracked with two dead people for each incident, an average of 22 people killed over a span of just 52 days. In Kaduna State, there was within that period, three incidents and nine killings; Rivers has six incidents, including the detonation of explosives and attacks on courts.1
Election day and post- election violence
In Akwa-Ibom State, three persons were killed during the governorship and House of Assembly elections. In Rivers State, four persons including a soldier were feared dead during the Presidential and National Assembly elections in the state. During the governorship and House of Assembly, five persons were feared killed in Benue State; four in Kebbi; two, each, in Rivers and Lagos; and one, each, in Plateau, Bauchi and Ebonyi.3 According to a post-election assessment by the Centre for Democracy and Development, it was authoritatively revealed that over 100 people were killed during the just concluded general elections. Please note that the electoral violence witnessed was predominant in the South – South, South – West and the South East Zones of the country. These statistics do not include those deaths that were unreported or those that were premeditated politically motivated assassinations, arson and other mayhem unleashed on the populace by politicians and their thugs. These deaths do not also include the Boko Haram attacks in Bauchi, Gombe and Yobe States during the elections which claimed several lives.
The Economic and Financial Crimes Commission (EFCC), has re-arraigned three oil marketers, Opeyemi Ajuyah, Abdullahi Alao and Olanrewaju Olalusi over allegation of N1.1 billion fuel subsidy fraud.
They were re-arraigned on an amended eight count charge alongside their companies; Majope Investment Limited and Axenergy Limited before Justice Lateefa Okunnu of a Lagos High Court sitting in Ikeja.
The defendants were initially arraigned on October 10, 2012 on a nine count charge bordering on alleged conspiracy, obtaining money by false pretences, forgery and use of fake documents.
They had pleaded not guilty to the charges and were subsequently granted bail by the court.
During trial last Friday on the matter, counsel to the EFCC, Seidu Atteh, intimated the judge that the commission had amended the charges.
The lawyer consequently prayed the court to order the defendants to re-take their pleas.
He alleged that the oil maketers fraudulently obtained N1billion from subsidy fund of the Federal Government between January 2011 and April 2012.
Atteh said that the money was for subsidy payments from the Petroleum Support Fund for the purported importation of 15 million litres of Premium Motor Spirit (PMS).
The commission also alleged that the defendants forged a bill of lading, cargo manifest and other documents which it claimed were utilised to have facilitated the fraud.
Atteh said that the offences contravene Sections 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act of 2006. The offence is also said to violate Sections 363(a) and 364 of the Criminal Law of Lagos State, 2011.
All the defendants again pleaded not guilty to the new eight count charge preferred against them by the commission.
Justice Okunnu adjourned the matter till October 20, 2015 for trial.
Like his elder brother, former Edo State Governor Lucky Igbinedion in 2008, Michael easily got off the hook after being convicted for a N25 billion fraud on April 30. He was fined N3million in lieu of six years imprisonment. Michael easily paid the fine just as his brother did seven years ago. Nigerians were outraged by the verdict, with many accusing the judge of encouraging graft. But did Justice Abubakar Liman err? No, say lawyers, who argue that he was only interpreting the law. PRECIOUS IGBONWELUNDU reports
•Judge incurs public ire over ‘fame’ verdict
•SANs, others: blame the law not the judge
Background
History has a way of repeating itself. Last April 30, Michael, younger brother of former Edo State Governor Lucky Igbinedion, got away easily after being convicted for a N25 billion fraud. He was fined N3million in lieu of six years imprisonment. A similar sentence was handed to his brother in 2008 after he was found guilty of embezzling N2.8 billion and sentenced to six years imprisonment with an option of N3.5 million fine.
Igbinedion with an aide to the former governor, Patrick Eboigbodin (first accused), and their companies-Gava Corporation Limited; Romrig Nigeria Limited; PML Securities Company Limited and PML Nigeria Limited- were charged to court by the Economic and Financial Crimes Commission (EFCC) for alleged N25billion fraud, on 81 count charge of money laundering, abuse of office and fund misappropriation.
The offences, contravened Sections 1, 2, 3, 4, 5 and 10 of the Money Laundering (Prohibition) Act, and are punishable under Sections 14 and 15.
Justice Abubakar Liman of the Federal High Court in Benin sentenced Eboigbodin to 20 years in prison without fine option. He will spend two years in prison as the sentence will run concurrently. Igbinedion was sentenced to six years in prison with an option of N3million fine.
The Igbinedions’ cases are not isolated. About three years ago, former Police Pension Board boss, Yakubu Yusuf was sentenced to two years in prison with an option of N250,000 fine, after he was found guilty of embezzling N23.3 billion. Like the Igbinedions, he easily paid the fine and returned home.
At a time when some are campaigning for capital punishment for corruption, the sentences are perceived as insult on Nigerians and a set back in the fight against corruption.
This has exacerbated public anger and resentment against the judiciary, with many Nigerians accusing judges of protecting high profile criminals .
They wonder why Justice Liman did not sentence Igbinedion to six years imprisonment without a fine option; or six years in prison with a fine of N3 million to deter other public office holders.
Many see the verdict as a “slap-on-the-wrist” and are accusing the judge of compromise. But is that the case? Who should be blamed and how do we ensure that the punishment for politically exposed persons found guilty of corruption can contain the vice?
What the law says?
There are legislations on money laundering and corruption related charges. The EFCC Act, the Independent Corrupt Practices and Other Related Offences Commission (ICPC) Act, the Advance Fee Fraud Act and the Money Laundering (Prohibition) Act, among others, provide punishments ranging from two to 15 years for those found guilty of corruption.
Under the Money Laundering Act, which the accused persons were charged and convicted on, the law provides that a person convicted for such offence is liable to a minimum of two years in prison, a maximum of three years or an option of fine.
According to Section 15, any person who ‘(1) (c) carries out or attempt, under a false identity, to carry out any of the transactions specified in Sections 1 to 5 of this Act; or (d) make or accepts cash payments exceeding the amount authorised to be reported under this Act; or (e) fails to report an international transfer of funds or securities required to be reported under this Act…contravenes the provisions of Section 2, 3, 4, 5 or 10 of this Act; or commits an offence under this section.
‘(2) A person, who commits an offence under subsection (1) of this section, is liable on conviction- (a) in the case of an offence under paragraphs (a) to (c) of subsection (1) to imprisonment for a term of not less than 2 years or more than 3years; (b) in the case of an offence under paragraphs (d) to (f), where the offender- (i) is an individual to a fine of not less than N250,000 or more than 1million Naira or term of imprisonment of not less than 2 years or more than 3 years or to both fine and imprisonment; or (ii) is a financial institution or any other body corporate to a fine of not less than N250,000 or more than N1,000,000.00 (1 million Naira) (3) A person found guilty of an offence under this section may also be banned indefinitely or for a period of 5 years from exercising the profession, which provided the opportunity for the offence to be committed.’
The fight against corruption
Like cancer, corruption has continued to permeate all fabric of the national life, with daily reports of mind-boggling looting of state treasury by public officers and their cronies, while critical infrastructures that would have created employment opportunities for the masses, abandoned.
According to Transparency International’s Corruption Perceptions Index (CPI) for 2014, Nigeria, with 27 per cent grade, ranked 136 out of 175 countries. Despite the devastated effect of corruption in the polity, majority of the high profile cases have suffered severe setback at various courts across the country.
While the prosecuting agencies continue to secure stiff punishments for ‘lesser thieves’, they have continuously exhibited what observers described as incompetence as well as inadequate capacity to thoroughly investigate and prosecute high profile economic crimes.
Among the cases stalled from arraignment are those against the former Governors Orji Uzor Kalu (Abia), Abdullahi Adamu (Nasarawa), Jolly Nyame (Taraba) Abubakar Audu (Kogi), Joshua Dariye (Plateau), Ayo Fayose (Ekiti), Ibrahim Turaki (Jigawa), Chimaraoke Nnamani (Enugu) and Timipre Sylva (Bayelsa).
In spite of several anti-graft laws, there is a feeling of hopelessness among the low and middle class as it is believed that perpetrators of high profile corruption do not fear any consequences and are ‘untouchable’.
But despite the torrent of criticisms that have trailed Justice Liman’s verdict, some analysts think the judge has been unfairly lampooned since his decision was based on the charges before him.
They believe the law enforcement as well as prosecuting agencies are responsible for the lack of successes or the seeming weak sentences handed to high profile criminals.
According to them, rather than carry out thorough investigations and charge these persons under the appropriate laws with heavier punishments, the law enforcement agencies choose to implore lesser charges; living the judges with not much options.
However, some observers think Justice Liman in exercising his discretion, should have considered the effects of corruption, and chosen the stiffest among the provided options under the charge, rather than allowing Igbinedion pay a token N3 million and going home like a free man.
According to them, the most glaring of the complains against the judgment was that the co-accused was not given an option of fine. Critics are of the view that the judgment showed that the judge was not in tune with expectations of the people, as such, sent a signal that encouraged people to steal more.
Some have queried Justice Liman for adjourning the sentencing to April 30, a day after he found them guilty. They wondered whether it was an opportunity delibrately created to be reached out to or be induced.
According to them, sentencing a man convicted for N25 billion money laundering to a fine of N3 million, has further created an impression that children of the rich can get away with blue murder, while the poor get the full weight of the law for petty crimes.
Lawyers speak
•Quakers
Airing his view, a constitutional lawyer, Norrison Quakers (SAN), said: “You cannot blame the judge. There are two things to be considered. What is the penal sanction provision? What is the state of the evidence put forward by the prosecution? A judge will not go outside what the law says and must also not go beyond what is before him regardless of how he feels about a particular case.
“Also, for each offence, there is a punishment. While some of the punishments are mandatory, others are left at the discretion of the judge. The problem is not with the judge and it is not with the laws either because we have enough laws to combat corruption.
“Rather, it is as a result of the inefficiencies of the prosecuting or law enforcement agencies. We have a handful of laws that could be applied in cases of corruption or money laundering. There is provision for forfeiture of assets in the EFCC and the NDLEA Acts, which can be achieved through an Exparte Order.
“The challenge is with the flat-footedness of the prosecution. Rather than implore the full provisions of the law, they resort to compromise. It is not about the general perception of the public, but court decisions are taken based on evidence and facts placed before a judge and the relevant sections of the law under, which an offence is charged. No matter how a judge feels about a matter, he must not descend to the arena, else it would amount to miscarriage of justice.”
•Ozekhome
Similarly, Mike Ozekhome (SAN) and Adetokunbo Mumuni believed a judge cannot act beyond the charge before him. They argued that Justice Liman only exercised his discretion as provided for by the law and could not have gone beyond what was stated as punishment for the crime.
They said the way forward was for the legislature, which is saddled with the responsibility of enacting laws, to amend the enabling legislations in order to provide for stiffer and mandatory punishments for corruption.
Mumuni said serious matters should no longer be left at the discretion of the judge. He suggested the need for the laws to be more categorical and for the fine option on corruption cases removed
Ozekhome emphasised that the nation operates accusatorial system rather than inquisitorial criminal justice system, which rests the onus on the prosecution to prove an accused person’s guilt.
To executive director, Constitutional Watch, Ahams Njoku, the judgment was fair and in accordance with the law.
He said: “They (people) seem to be at a loss on why the money that was said to be laundered stood above the fine to be paid by Igbinedion. The first thing to note is that the offence appears to be a strict liability one.
“Igbinedion was said to have accepted cash payments of the sums of 10million, three hundred and nine thousand naira and also 21 million naira contrary to the Money Laundering Act (Section 15(1) 2004)…
“The next issue to consider is the sentencing under the Money Laundering Act (Section 15(2) 2004 thereof)… In other words, the judge has the discretion to either sentence the person to an option of fine or he can sentence the person the prison. He can also fine the person and at the same time send him to prison. But the thing to note is that the judge in exercising this discretion is guided by the law and judicial precedent.”
“By virtue of Section 36(12) of the 1999 Constitution, a court can only impose a sentence as prescribed by the law. It provides: “Subject as otherwise provided by this constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty, therefore, is prescribed in a written law; and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law”. “Any attempt by the judge in this case to have imposed any other sentence above the three million naira fine which is the maxim would not only be ultra vires but indeed unconstitutional.”
“One may suggest that the sentencing in this case was not only fair, but according to the law. Anything to the contrary would have been based on the whims and caprices of the presiding judge and the certainty of the law would have been violated. Then the court would cease to be a court of law, but a court of public sentiment.”
•Obayuwana
To former Edo State Attorney-General and Commissioner for Justice, Dr. Osagie Obayuwana there is need for the amendment of the laws to meet with the yearnings of the people.
‘Sentencing should be reflective of social policies. It is social expectations that the legislators in making the law should capture. It was social disapproval of the offence of armed robbery, murder and kidnapping that informed death penalty as sanction for anyone convicted of the offence.
“A lot of people are already calling for mandatory death penalty for corruption and most of the people clamouring for stiffer punishment against corruption are not of the ruling class, but this does not appear to be an area of importance for the National Assembly because they are also exposed.
“There is need for amendment of the criminal law to make punishment for corruption mandatory in order to forestall situations where judges in exercising their discretion, give sentences that defeat the purpose.
“Generally, corruption is perceived as an offence for the rich, not the poor. It entails not just stealing, but also abuse of public office with consequences that are far and wide which impact on millions. If we can be strict in punishing armed robbery, murder or kidnapping, why can’t we be that strict for corruption?
“If we do not want death penalty for corruption, then, it should be punishable with life imprisonment without an option of fine. That way, public officers will no longer be able to escape the weight of the law if found wanting.
“The incoming administration of Gen. Muhammadu Buhari must take concrete steps to ensure that all those former governors, politicians who have corruption charges but have been frustrating them, are speedily prosecuted.
“In order to deliver on his anti-corruption stance, the incoming legislature must amend the legislations for stiffer punishment. I also think that judicial officers as well as other public officials have to appreciate and match in line with public for corruption and corrupt practices as the bane of present day Nigeria.”
Dr. Fabian Ajogwu is a Senior Advocate of Nigeria (SAN) and head, Kenna Partners law firm. He has authored several commercial law books. The lawyer, who has handled high profile national and international cases with emphasis on aviation, defence, energy and financial services sectors, expressed concern over the disappearance of about $854 billion from Africa between 1970 and 2008. In this interview with Assistant Editor BOLA OLAJUWON, Dr. Ajogwu bares his mind on the implication of the report of the High Level Panel on illicit financial flows from Nigeria and other African countries, chaired by former South African President, Thabo Mbeki.
As an international commercial lawyer and a senior advocate, what is your position on the illicit financial flows report released by the High Level Panel on Illicit Financial Flows from Nigeria and other African countries? What do you think is responsible for poor enforcement against such financial flows?
Your question goes to the root of theHigh Level Panel on Illicit Financial Flows, which report was submitted to the African Union (AU) on January 31 and headed by highly-respected Thabo Mbeki, former President of South Africa. Now, before we get to the issue of the regulatory framework, it’s important to understand first and foremost that the issue of Illicit Fund Flows is wider than samples taken from anyone source. It just means that money is removed from a system in a way that is designed to, not have it tracked – be it for tax evasion purposes, under-declaration of revenues, outright theft, money laundering and corruption. There is a wide range of reasons why there is illicit fund flows. Now, when we understand that it is a wide range, we now look at why is it happening? In that report, the origin was stated to date back to the 1960s when a whole lot of African nations were gaining their independence.
There were already illicit fund flows from those areas administered by the colonial masters, and the emphasis was on driving revenues out to the colonial centre-points, rather than the territories. I am giving you this background because of its importance to answering your question. The legal framework of money flows, appropriation of capitals and financial transparency were essentially all common laws inherited legal frameworks that had developed over the years. So, you can see why starting from the 60s, they were not sufficient enough to deal with the different ways in which money can be illicitly moved. That is the basis from where I would like to approach the question. You must also agree that crime is always ahead of the law. You make the law today, people find loopholes; and then you have to block it to find another one. Then, they create a whole new one that you never thought of, and you have to legislate on it. The truth is that most African countries, Nigeria inclusive, have been lagging behind in being able to tackle those illicit fund flows. This lag behind varies – some lag way behind, some are trying and close to breakthrough.
So, the truth is that, countries that were affected, their statistics are mind-boggling. We are looking at about $854 billion that has disappeared from Africa between 1970 and 2008. I am making these points in an objective manner in order to avoid finger-pointing exercise, as to who was responsible. So, clearly, we are not even talking about the lifetime of the present administration. We are talking of 70s to 2008 – that is what the High Level Panel (HLP) on the flows covered.
Now, what is the make-up of this? You will see that Nigeria has the largest – $89.5 billion, followed by Egypt ($70 billion); Algeria ($25.7 billion; Morocco ($25 billion) and South Africa being the least, ($24.9 billion). Looking at this, you will find something very disturbing. The funds have gone out in a quicker pace than the development assistance coming into the country. Yes, Africa receives aids, but the money leaving Africa is in the ratio of 2:1. So, for every $1 Africa is given as aid, $2 has disappeared outside Africa through illicit fund flows. The question that comes to mind is: what is the legal framework? Much of this fund flows would depend on the sector that is largest in relevance to that country. So, for South Africa, it might be through mineral resources. In Nigeria, it could be crude oil or gas.
Why is the menace so pronounced in national mono-economy?
It happens more in a mono-economy country because the more no value is added to such resource, the easier for it to disappear. It’s easier to dig out five tons of gold and declare four, than for a processed product that has gone from person to person and can be tracked.
When you put this into consideration, we now look at the legal framework of those countries. And of course, governance and determined leadership to stop it would drive the regulatory framework to tackle the problem. If you look at what has happened, much of that illicit fund flows from the report sparked from year 2000 to 2008; it was the highest. In fact, more than half occurred within that period. What occurred during those periods is that the average inflow from West Africa and Central Africa jumped due to the fact that if five buckets of crude oil were stolen and were worth $10 dollars each, the global price of commodity doubled within that period. So, instead of $10 in five places, it became $20 in five places. It looks like it went straight from $50 to $100.
However, what is important to the African person is that, this is the resource that could have been used to develop Africa to be like much of Europe and America. What have we done about this? This happens through sophisticated mechanisms; it happens through major purchasers of these natural resources, resulting in under-declaration and in some instances, non-declaration at all. If you talk about diamond theft, it is rarely the small individual, who has the sophistication to go through the process of mining it; that individual lacks the sophistication of finding the buyers, who will pay the prevailing market value for it.
There is a lot of multinational inputs into the fund flows through sophisticated mechanisms such as special purpose vehicles, operating in grasp scrape land, where there is little or no demand for financial transparency and reporting, schemes such as shareholder loans and inter-company pricing, paying for what you are not getting for instance, and being billed for franchise and royalty fees on expired franchise that are no longer useful. In addition to blatant theft of it, it is important to stress that these things go together and now come to the point of what do you then do in terms of blocking this?
The legal framework has to be toughened to bring it from what it used to be to what is actually happening now. Take for example, Nigeria has been singing the Petroleum Industry Bill (PIB) song for nearly a decade. While we are discussing the good idea, it is not yet alive. You can be talking about all the good things you plan to do for your children in the next 10 years, if you don’t do them, they become discussions. It is also possible that the complication and attempt to build a giant elephant out of the PIB may not work. Maybe they should have segmented them into practicable and durable bit of legislation. The absence of this framework has more or less enabled a free-for-all ground, where all of these gaps are exploited by individuals, companies, state corporations and multinationals in taking out funds illicitly from Africa, amounting to $850 billion or thereabout. I think that this is an important area that one needs to tackle and countries should look at what HLP has submitted and not look at it as indicting documents, but as useful documents for reflection.
Is there any need for new legal framework to bring about decency?
First of all, states need to articulate the steps that must be taken in imposing documents. It is not for short-stock angle debate. It is a big problem. Approaches should be articulated on how to deal with the problem. It is not ‘one cap fits it all’; different states have different problems on how their funds are moved out illicitly. Once we find that out, the HLP needs to be localised now that the report has been received. One of the things that must be done is working towards harmonising our laws, to be able to block these loopholes, to be able to block the issues of theft, to be able to deal with the issues of corruption and also to be able to tackle the issues of under-declaration and non-declaration of resource trading.
In terms of the largest illicit fund areas, it is non-declaration or under declaration of resource trading. You may call it crude theft, mineral theft and inter-companies arrangement that deprive the state of what is due. Now, having said that, the question may then be, how do you deal with the issue of corruption? For instance, different countries have progressed on this topic.
The existing legal framework is that a man is innocent until proven guilty and that is a very hard legal framework with which to fight corruption. If you look at the United Kingdom (UK) Bribery Act, you now have guilt by inference. So, if we find you with $10 million, the presumption is that it is proceeds of crime. You will have to explain how you came about the $10 million. If you can prove that 50 per cent of it was inherited, what about the remaining half? If you show that your salary amounts to $1 million, good. What about the other $4 million? If you can’t account for it, therefore, it is concluded that it is a proceed of crime. It will be impounded and you will also pay for it. The current system we have in Nigeria is that somebody has to first of all prove that there is a $10 million stolen or taken from somewhere, and you can sit back while the prosecution labours and sweats to prove beyond reasonable doubt. I say this because it is not difficult to introduce a doubt in criminal prosecution, except the case is clean, clear and iron-cast. Rarely are cases that way. So, the state at best fights corruption with one hand or two hands tied behind. This is quite different from whether a particular administration is pursuing anti-corruption or not. The legal framework as it stands today does not help fight this effectively.
In guilt by inference system, it places the burden on you to explain the source of your money, which is an easier way to tackle corruption. Legal framework deals with resource trading and transparency of it. Rendition of returns deals with for instance, from where you take, to where you deliver. If we can regionalise some of those laws in the legal framework, it would help. I talked about dealing with corruption by switching from proof beyond reasonable doubt model to guilt by inference in corruption and financial crimes cases only (not the entire criminal system); we need to have a stronger financial framework for financial reporting, so that companies, who do inter-companies, multinationals, and swaps of money that you don’t see, there would be a standard for doing that. I believe that if all these factors are dealt with, I am very sure that we would have cut down our illicit fund flows significantly by more than 60 to 70 per cent.
How can the country deal with the global aspect of the illicit funds flows?
One of the objectives of the illicit funds flow HLP is simply to track it, stop it, and retrieve it. So, we have not been able to do all three. What has happened from the first point is on an awareness that so much has gone. Now, the next step will be to track the specifics of where these funds have gone. The third will be while we are tracking it, we must simultaneously stop more from being taken. Because when you want to revive somebody who is bleeding from an accident, you don’t just go looking for blood from the blood bank to give him more infusion, you will also try and stop the bleeding whilst getting more to put in. Both efforts must go on. You need to stop the bleeding because the person may not even be alive to receive the blood.
Therefore, we need to stop the bleeding of Africa. In terms of tracking, we need to be able to go with some of the leads from the panel report and look into those areas I mentioned earlier – from the resource trade, corruption, inter-company, bills and pricing, especially in the multinationals. Now, once we find that, we should then be able to work in collaboration with different jurisdictions; because sometimes, people render differently. We would then be able to work within that framework to harmonise what actually one has lost. The next approach should be to be able to get the money back.
Those, who are the core people, should be brought to book to face the wrath of the law, because this deprived generation of Africans of wealth that should be used for its development. If, for instance, we are able to achieve it, reinvesting part of those returned will strengthening the mission of getting back more and blocking the leakages.
Today, information is scanty, but there has to be commitment from the different states, especially Nigeria, to getting that information through an organised way. It is possible with a bit of effort to get bodies like Transparency International (TI), United Nations Office for Trade and Financial Crimes, Global Financial Integrity and a host of others, who are committed as non-profits to help with this. They should be worked with in partnership to try and stem the tide of illicit funds flows, in addition to changing and tightening out regulatory framework.
What is your take on the repatriation of more Abacha loot?
Well, it should be understood that in those periods, almost $40 billion left our shores on accounts of trade mispricing; under-declaration of customs duties, importation and so on. Yes, there should be a political will plus the legal framework to repatriate such loots. In a critical democracy where the three arms of government are independent acting as checks and balances on the other, the legal framework will need to be driven by legislative arm. They would make the laws, there has to be political will, strength and courage to implement those laws. There has to be integrity on the third arm to interpret the laws and find guilty people who are in breach of the laws. The three working together would produce the results we desire. So, no one arm can deal with the problem alone; co-operation between the three arms is needed. In terms of how to go about actualising this, we do need to have a discussion on the subject as to how to get it.
You will notice that a country like the United States (U.S.) for some bribery off-shore get a $100 million fine. There is no reason why we shouldn’t index that; and if you are found guilty and have to pay fines for something you done there, here you will pay 1.5 times of that. So, for every $100 million you pay in the U.S., you will pay $150 million here.
There is no reason why we should not do that here because, if a person is paying for crimes committed here and not even in the U.S., but because they have legislated their Foreign Corrupt Practice Act, they are able to sanction firms and individuals. We need to also be able to have a track on offshore tax-shelters, where people set up businesses solely to avoid tax or to just not declare the true returns that they make. You will see that transfer pricing, using phony companies to maximise profits, bad ethics, dishonest officials, corruption and all of those things add up to the illicit outflows. We need to be able to strengthen the fight against official corruption, by having simpler ways of reporting them, whistle-blowing and of dealing with those things in a manner that is not burdensome; and also strengthening of our prosecution mechanisms. With time, we will be able to deal effectively with the issues of corruption and illicit funds transfers.
Are there specific areas you can cite in the Nigerian laws that must be amended or fine-tuned?
Yes, the ‘prove beyond reasonable doubt theory’. We still approach financial crimes and corruption as we would approach theft of a car or murder. They are all classed as criminal offence. In criminal offences, there is burden of proof beyond reasonable doubt, and it is embedded in the constitution. The Constitution of the Federal Republic of Nigeria says every man is presumed innocent until proven guilty. In corruption cases as you would find in the UK Bribery Act, as an illustration, we can have something similar because the principles they address are not different from the principles that we face. If they come across $10 million with you, instantly it is impounded - it is the proceeds of crime; you then prove us wrong. That is the big loophole being exploited here and that hampers the fight against corruption, which is why you see that sometimes somebody is arrested is put in two trial and they can’t prove him guilty.
A number of financial transactions go with sophistry done on i-Pad and phones. You can transfer millions from your i-Pad and there would be no trace and there would be no boxes of money being moved. So, we do need to bring our legal framework, fast-forward it a bit to 2015 by bring it from where it is in the 60s and 70s and bring it here. Again, our statutory books still prescribe fines in figures. For instance, ‘anybody who does this is guilty and liable upon conviction to a fine of N2, 000’. It is like pressing pause on your remote control. Two thousand naira in 1999 is not N2, 000 in 2015. The time value of money also applies to penalties, whereas N2, 000 in the 70s and 80s may be $3, 000. Extrapolate it to today; you may then be talking about almost N600, 000 frozen in the statutory book and it remains N2, 000 in 2015.
These are practical issues that don’t require any genius to deal with, but the willingness of our lawmakers to tackle, of the Executive to enforce and of the Judiciary to interpret. If we do this, we should have a better society but to ignore it and not deal with it leaves us exposed to what Mbeki rightly said and I always like to repeat him, he says “seizing these opportunities will be difficult, squandering them would be unforgivable and indefensible.”
There is now an opportunity for African states, Nigeria inclusive, to look at the big question of illicit fund flows, and I think that even though it’s difficult, we should seize the opportunity now. The solution does not appear to lie in looking at the West for help, but should come from Nigerians and indeed Africans. Help from the West will usually come in the form of aid and policy conditionality, with its own price tags. Nigeria should ensure that democracy and the rule of law (with the necessary checks and balances) remain. It should embark on judicial reforms, transparency and accountability in government, strong institutions of restraint (e.g. a strong legal system, civil service, financial system, etc.) In doing so, Nigeria and indeed Africa will be able to harness its competitive advantage in making the best of its natural and human resources, in encouraging manufactured exports and gearing for the transition from the primary to the secondary sector of economic development. It will check and reverse the illicit fund flows. Nigeria’s problem and indeed Africa’s problem is for it to solve – No one owes us a living.
To get more lawyers involved in giving free legal service for the public good, a roundtable has been held on NBA’s pro-bono scheme. PRECIOUS IGBONWELUNDU reports.
Lawyers and civil society groups gathered in Abuja, last week, to develop strategies for the implementation of Nigerian Bar Association (NBA) pro-bono scheme.
The roundtable was part of the “Support to the Justice Sector in Nigeria” project funded by the European Union (EU) and implemented by the United Nations Office on Drugs and Crime (UNODC).
It was supported by the Justice for All (J4A) programme. Participants included Vice-Chairmen of selected NBA branches, the Office of the Public Defender (OPD) of selected states and some non-governmental organisations (NGOs) that provide pro-bono legal services.
NBA’s bye-laws provide for branch vice-chairmen to head the human rights committees at the branch level, but not many have been functioning optimally.
Vice-Chairman of Enugu Branch, Mr C. Wagbara said he was not aware that he was the statutory head of the committee in his branch.
“I’ve never been told that I’m in charge of human rights in my branch. NBA should orientate lawyers, including senior ones, on the need to do pro-bono services. It’s part of what we swore to do,” he said.
First Vice-Chairman, Lagos Branch, Mr Nelson Ogbuanya, said some branch chairmen may have been reluctant to carry their deputies along for fear of being overshadowed.
He said funding is also a constraint, adding: “Most of the pro bono work I’ve done were all personally funded.” He suggested a coordinating committee of the NBA to oversee pro-bono cases at branch levels.
Osogbo Branch chairman Mr S. B. Ajibade said judges should assist lawyers handling pro-bono case by granting urgent ex-parte applications on human rights issues.
He said some of the judges feel reluctant to grant such applications because of National Judicial Council (NJC) restrictions on injunctions.
Vice-chairman Owerri Branch Mr Ihediohanma Fidelis said there were challenges of lack of continuity of pro-bono projects and few lawyers being involved to drive the programmes.
Other challenges identified by speakers include victims developing cold feet, lack of empathy by lawyers, experienced lawyers not being involved in pro-bono work, insecurity and lack of cooperation from the police.
Director, Legal Defence and Assistance Project (LEDAP) Mr Chino Obiagwu urged lawyers not to focus their pro-bono services on prison decongestion.
“Go to slums. Go there and fight for social justice,” he said.
Another area lawyers can litigate on, he said, is the issue of estimated electricity bills and non-issuance of pre-paid meters.
“It is the role of lawyers to go to court and challenge this. Un-metered houses are not supposed to be billed. Lawyers should fight these big corporations. What about dropped calls by telecoms companies?
“Why should consumers pay for service not rendered? The money belongs to us. If every lawyer does one pro-bono case per year, the country will be better,” he said.
Urging NBA to do more litigation for the public’s good, Obiagwu said: ”People say that NBA is a sleeping elephant, so it should wake up, especially now that we have a reform-minded Vice-President-elect (Prof Yemi Osinbajo (SAN) whose reform legacies in the judiciary we can all see.”
It was suggested that provision of pro-bono services should not be mandatory for new lawyers, but voluntary.
Lawyers were urged to make donation towards pro-bono services, while each NBA branch should appoint a desk officer to record cases handled.
Other recommendations are that a monitoring team from secretariat should ensure compliance, and it should be made compulsory for those applying for silk to make mandatory donations towards pro-bono services.
