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Tag: Activist lawyer

  • Adegboruwa: INEC can’t withhold certificate of return

    Activist-lawyer Ebun-Olu Adgboruwa has said the Independent National Electoral Commission (INEC) has no power to withhold the certificate of return of an election winner.

    He said there was no basis in law for INEC to review an already declared result of an election “no matter the circumstances”.

    He faulted the commission for withholding the certificate of return of Imo State Governor Rochas Okorocha.

    INEC said Okorocha was declared winner of a senatorial seat “under duress”.

    Adegboruwa said the commission of his name from the list of those presented with certificates of return “is illegal and ultra vires the electoral body”.

    He argued that based Section 68 (1) (c) of the Electoral Act 2010 (as amended), only a tribunal could overule an election.

    The Section reads: “The decision of the Returning Officer on any question arising from or relating to declaration of scores of candidates and the return of a candidate, shall be final, subject to review by a Tribunal or Court in an election petition proceedings under this Act.”

    Adegboruwa said: “In the case of Governor Okorocha, there was a declaration of his scores in the election and he was announced and returned as elected, by INEC.

    “However, the Returning Officer claimed that he did the declaration and return under duress to save his life. This is an allegation, coming from INEC.

    They are facts that will aid the Election Petitions Tribunal to take a decision on whether or not to nullify the election, in view of the alleged violence or duress.

    “But INEC cannot in law raise an allegation of duress or violence and then proceed to investigate it and then take a decision on it. You cannot be a judge in your own cause!

    “Whereas I do not support that any electoral officer should be threatened or compelled to make a declaration, but once when a declaration has been made, it becomes final.

    “It cannot be reviewed, retracted, reversed or investigated by INEC. Section 68 gives that power of review to a Tribunal or Court in election petition proceedings. This is clear beyond any controversy, from the letters of section 68 above.

    “INEC has no power under the law, to withhold or refuse to issue a certificate of return, to a person whose scores or votes have already been declared, even if done under duress or through violence.

    “Section 75 of the Electoral Act provides as follows:

    ‘A sealed Certificate of Return at an election in a prescribed form shall  be issued within seven days to every candidate who has won an election under this Act: Provided that where the Court of Appeal or the Supreme Court, being the final appellate court in any election petition as the case may be, nullifies the Certificate of Return of any candidate, the Commission shall, within forty-eight hours after the receipt of the order of such Court, issue the successful candidate with a valid Certificate of Return.’

    “From the foregoing, INEC must issue a certificate of return to every candidate who has been declared to have won an election, it has no discretion in the matter.

    “Whether he won under duress or with violence, is immaterial. Okorocha has been duly declared and INEC has no choice than to issue him a certificate of return. The facts of how he got himself declared are for the Election Petitions Tribunal.”

    Adegboruwa said based on Section 75 (1), where a certificate of return has become a subject of litigation and is nullified by the court, then INEC will issue a new certificate of return to the other candidate who has succeeded in the court case, as the old certificate of return stands nullified by the court.

    “Thus, it is not the candidate who has been declared in any election that will go to court to compel INEC to issue him with a certificate of return, but rather for the aggrieved candidate to approach the Elections Petition Tribunal to have the certificate of return nullified.

    “Section 75 (2) of the Electoral Act: ‘ Where the Commission refuses or neglects to issue a certificate of return, a certified true copy of the order of a court of competent jurisdiction shall, ipso facto, be sufficient for the purpose of swearing-in a candidate declared as the winner by the court.’

    “Section 75 (2) is simply meant to enforce the proviso to section 75 (1). It is about what happens post-litigation. It does not confer INEC with power to withhold certificate of return for a candidate that was originally declared winner of an election.

    “Reading sections 75 (1) and (2) together, here is what the law says:1. Once a candidate’s score or election results have been declared, INEC must issue him with a certificate of return.

    “Where that certificate of return has been challenged and is nullified by the court, INEC must issue a new certificate of return to the person newly declared by the court as winner of the election.

    “If the candidate newly declared by the court is unable to get INEC to issue him with a new certificate of return within 48 hours of the judgment of the court, then he can rely upon a certified true copy of the court judgment for his swearing-in, in place of the certificate of return.

    “It is clear that INEC has no power in law, to review the outcome of election results or declarations and it has no power to withhold certificate of return.

    “We must be careful not to create monsters and terrors from our institutions, where the law has not conferred such powers on them.”

  • Buhari not doing enough in his anti-corruption war – Falana

    Buhari not doing enough in his anti-corruption war – Falana

    Activist lawyer, Mr. Femi Falana, SAN, on Friday declared that President Muhammadu Buhari is not doing enough in his battle to rid the nation of corruption and recovers stolen wealth from looters.

    Falana urged Buhari to muster enough “political will” to go after Nigerians who have deprived the country of her legitimate earnings through stealing and cheating, and caused them to return the  I’ll gotten funds instead of seeking local or foreign loans to fund projects.

    The Human rights lawyer who made this known at the Obas Complex, Oke – Mosan Governor’s Office, Abeokuta, the Ogun State capital, also faulted the Dr. Bukola Saraki – led Senate for approving the $5.5bn loan request put forward to it by Buhari.

    Falana who was the keynote speaker at this year edition of the 78th International Students Day organised by the Ogun State government, said if unremitted funds in some federal government agencies, companies and others hidden offshore haven by looters were retrieved by Buhari – led government, there would be enough funds to execute projects instead of Nigeria going about with cap in hands begging for loans.

    Speaking on the theme: “Restructuring, Pros and Cons: The Place of the Nigerian youth,” the legal luminary argued that what had been recovered from looters by the Federal government in the last two years remained a mere “tip of an iceberg.”

    He said the bulk of the looted funds are still out there with the looters and urged the government to go all out to retrieve them.

    He also lamented the state and standard of education in the South West, insisted that the zone was not doing well in education, saying the evidence could be seen from the recently released West Africa Examination Council results where the zone performed woefully.

    He recalled that in his home state, Ekiti, excised from Ondo,  there were times when most families in the state could boast of a professor each because they embraced Chief Obafemi Awolowo’s philosophy of education, lamenting that Ekiti is being governed today by a man who showed grave “contempt for education.”

    “Look at Where are we in education in South west, from the last WAEC results, no State in South West made it to top 10 and that for me, is a shame. We need to go back to where we are coming from,” he said.

    Falana urged the youths not to join those calling for the breakup of the country, saying those behind it are not only making “backward call,” but also fighting only for selfish interest.

    He noted that for the country should leverage on her huge population potential to move forward and erect knowledge based system.

    Governor Ibikunle Amosun who was represented at the event by the Education Commissioner, Mrs Modupe Mujota, urged Nigerian youth to take responsibility to build themselves.

    Amosun urged them to step forward to occupy their place in nation building, warning that if they don’t prepare, plan and execute their plans to be relevant, their voices and names would be missing in history.

    Also, a Federal legislator representing Yewa South and Ipokia Federal Constituency of Ogun State, Hon. Adekunle Akinlade, said the restructuring Nigeria needs is that of the mindset restructuring.

    Akinlade said Nigerians should steer clear of looking at every issue affecting Nigeria from the religious, tribal or ethnic prisms, adding that countries like Singapore, United Arab Emirate and some Asian countries are able to grow and develop because their citizens live above primordial sentiments.

  • Falana, activists urge to present cases of right abuses

    Falana, activists urge to present cases of right abuses

    A presidential investigation panel investigating cases of right abuses by the military has urged activist lawyer, Femi Falana (SAN) and other counsels representing Boko Haram suspects to come forward and present their cases before the panel

    The panel was set up by Vice President Yemi Osinbajo (SAN)  to review compliance of the Armed Forces with human rights obligations and rules of engagement.

    Chairman of the nine-man panel, Honorable Justice Biobele  Georgewill also urged counsels handling cases of abuses by soldiers to come before the panel.

    He stated this on the second day of the tribunal hearing holding at the Ikeja high court.

    Justice Georgewill said it is imperative that people in Southwest with allegations against the armed forces should appear before the panel.

    During its sitting Tuesday, the panel heard how a Sergeant with the Nigerian Army killed an okada rider by viciously kicking him in the stomach.

    Led in evidence by a representative of the National Human Rights Commission, Mr Lucas Koyejo, the brother of the deceased, Salihu Mohammad narrated that his brother Abubakar Alhaji died a day after he was brutalized by one Sergeant Taiwo Owoeye of the Nigerian Army.
    According to him, the incident happened on January 27, 2017.

    “According to what I gathered, my late brother picked up a passenger on his motorcycle around Morrocco in Yaba.

    “He parked his motorcycle behind a stationary car, not knowing that there was someone in the car. Suddenly, the car reversed, and my brother beat the boot of the car in order to notify the occupant that there was someone behind him.

    “Sergeant Taiwo Owoeye angrily got down from his car and slapped my brother twice. He thereafter proceeded to kick him several times in the stomach.

    “When onlookers challenged him, he said that there was nothing anybody could do even if my brother dies.

    “My brother thereafter became unconscious and we had to rush him to the military hospital. By that time he had started vomiting blood and other things. He could also not talk.

    “Sadly, he died the next day. We reported the matter at the Panti Police Station where they declined to give us a police report.

    “My brother’s body was not released to us for burial until after four months. When we inquired about the reason for the delay, we were told that the army was trying to conduct an autopsy,” Mohammed said.

    Responding, counsel to the military, Bola Oyebanji said the military has investigated the matter and found the allegation to be true.

    Oyebanji said Sergeant Owoeye has been arrested and detained and will soon be tried for “wilful murder of the okada man, late Abubakar Alhaji.

    Chairman of the panel, Justice Georgewill advised officials of National Human Right Commission (NHRC) to follow up on the report presented by counsel to the military and ensure justice is done in the matter.

    In another development, the panel dismissed a petition by a business man, Okorie Onwuchekwa for illegal arrest and detention.

    Onwuchekwa Tuesday failed to convince the Presidential panel to consider his petition in which he was seeking redress.

    According to Oyebanji, the counsel to the military, Onwuchekwa was arrested sometimes in 2004 on the allegation of importing weapons to bring down a presidential plane.

    Chairman of the panel, Justice Biobele Georgewill declared that the panel cannot hear  his petition on the ground that it does not fall within their mandate.

    He was advised to seek another means other than the panel to seek redress.

    The panel adopted the argument of the counsel to the Military, Bola Oyebanji which opposed hearing of Onwuchekwa’s petition when the matter was raised.

    Oyebanji had told the panel that Onwuchekwa was arrested for alleged treasonably felony 13 years ago and detained and tried along with the former Chief Security Officer to late General Sani Abacha, Major Hamzat Al-Mustapha based on a ruling of a court of competent jurisdiction.

    Based on the submission of the counsel to the military, Justice Georgewill ruled that the issue presented before the panel was beyond the terms of reference of the panel inaugurated on August 11, 2017 by Vice President, Yemi Osinbajo.

    Justice Georgewill said the objectives was to review extant rules of engagement applicable to the armed forces of Nigeria and the extent of compliance.

  • Award of contract: Baru violates NNPC Act, says Falana

    Award of contract: Baru violates NNPC Act, says Falana

    Activist lawyer, Femi Falana (SAN) has said that the defence of the Group Managing Director (GMD), Dr. Maikanti Baru that he has powers to award contracts to the exclusion of the Minister of State in the Ministry of Petroleum Resources and the board of the Nigerian National Petroleum Corporation (NNPC) is illegal and violates the NNPC Act.

    Falana contended that the defence of Dr. Baru failed to take cognizance of the provision of section 6 (c) of the NNPC Act which has vested the Board of the NNPC with the exclusive power to”enter into contracts or partnerships with any company, firm or person which in the opinion of the Corporation will facilitate the discharge of the said duties under this Act.”

    Falana stated this in a statement issued in Lagos Wednesday titled, “NNPC operates outside the law” in reaction to the on-going face-off between the minister and the GMD of the corporation, Dr. Maikanti Baru over the unilateral award of $25 billion contracts contract awards by the latter.

    The lawyer also noted that Dr. Baru failed to respond to the unilateral appointments of key staff in the NNPC without the approval of the Board of Directors pointing out that since this particular allegation was not denied, it is reasonable to conclude that it is admitted by the NNPC management, even though the appointments in question were made in utter violation of the Federal Character Commission Act.

    Notwithstanding the report that the presidency has thrown its weight behind the NNPC GMD in the face off with the Minster of State in the Petroleum Ministry, Falana stressed the need to review the matter within the ambit of the law.

    On the management of the NNPC and contract awards, Falana further argued, “for the avoidance of doubt, section 1 (2) of the NNPC Act states that the affairs of the Corporation shall be conducted by the Board of Directors of the Corporation. Since it is conceded by Dr. Baru that some contracts are subject to the approval of either the Board or the Federal Executive Council he is yet to inform the Nigerian people who approved the $25 billion contracts.

    “It is pertinent to state, without any fear of contradiction that by virtue of section 3 of the NNPC Act the GMD as the chief executive of the Corporation shall be responsible for the execution of the policy of the Corporation and the day to day running of the Corporation’s activities and its associated services. But contrary to the erroneous impression conveyed by the management of the NNPC there is no conflict whatsoever between the provisions of the NNPC Act and the Public Procurement Act, 2007 to justify the usurpation of the powers of the NNPC Board by the Tenders Board of the NNPC headed by the GMD. Therefore, the unilateral award of multi-billion dollar contracts in the NNPC by Dr. Baru or the Tenders Board is illegal, null and void in every material particular.

    “With respect, the totality of Dr. Baru’s defence was anchored on the mistaken belief that the NNPC Act does not require him to report to the Minister of State but to President Buhari in his capacity as the Minister of Petroleum Resources.

    “Dr. Baru must have forgotten that upon the removal of Dr. Kachikwu as the NNPC GMD in 2016, the President appointed him as the Chairman of the reconstituted Board of the NNPC in line with section 3 of the NNPC Act. Therefore, the decision of Dr. Baru to by-pass the Chairman of the Board in the award of the contracts and appointment of NNPC staff cannot be justified either under the NNPC Act”.

    Falana contended, “Since Dr. Kachukwu was not removed as the Chairman of the Board, the President ought not to have encouraged Dr. Baru to treat him and with such pompous disdain and arrogance”.

    He argued that the impression given by Dr Baru that once the President was briefed with respect to the award of the contracts, that due process has been observed in the award of the $25 billion contracts in line with the PPA was misleading.

    He maintained that such position is neither backed by the NNPC Act nor the PPA. He said the competent authorities that have the final say in the award of  contracts and disposal of public assets under the current political dispensation are the Bureau of Public Procurement (BPP) and National Council of Public Procurement (NCPP).

    “The NCPP is not chaired by the President but by the Minister of Finance. The other members of the NCPP include some officials of the federal government and representatives of relevant professional bodies and civil society organizations.

    “Apart from constituting the NCPP and the BPP   the President has not been empowered to approve any contract whatsoever. In fact, there is no reference whatsoever to the Federal Executive Council in the entirety of 61 sections of the PPA. To that extent, the FEC presided over by the President cannot approve the award of contracts which is the exclusive duty of the NCPP and BPP.

    “Although the PPA was enacted in 2007 the President or the Federal Executive Council (FEC) has  been approving multi-billion dollar or naira contracts, albeit illegally.

    The activist lamented that the Buhari administration which has loudly undertaken to fight corruption has ignored calls from many civil society organizations to set up the NCPP.

    He said since neither the President nor the Federal Executive Council is competent  to approve the award of contracts under the PPA the claim of the NNPC GMD that the controversial contracts were approved by the President cannot be justified under the PPA.

    To avoid a situation whereby the $25 billion contracts and others being awarded by the Buhari administration are annulled and set aside on the grounds that they were awarded by either the President or the FEC without any legal authority, Falana counseled President Buhari to constitute the NCPP without any further delay.

    “If this call is ignored, once again, the civil society anti-corruption bodies ought to approach the Federal High Court for a writ of mandamus to compel the President to inaugurate the NCPP”, he said.

    He also noted that apart from breaching the NNPC Act and PPA, the NNPC has conveniently ignored the National Extractive Industries Transparency Initiative Act and has refused to comply with the directive of the NEITI to remit $21.7 billion and N376 billion illegally withheld from the Federation Account.

    Though Dr. Kachukwu recently disclosed that the nation had lost $60 billion due,  he noted that the NNPC has refused  to recover same by implementing the provisions of the Deep Offshore and Inland Basin Production Sharing Contracts Act and instead of directing the NNPC to recover and remit the huge fund  to the Federation Account the Federal Government is busy piling up external loans.

    He also noted that the NNPC does not subject its budgets to the National Assembly for appropriation as stipulated by the Constitution and the Fiscal Responsibility Act.

    H recalled that shortly before proceeding on its annual vacation, the Senate disclosed that the NNPC and 33 other agencies of the federal government had failed to submit their 2017 budget to the National Assembly but that the NNPC management ignored the disclosure knowing that the Senate would not pursue the matter.

    Falana contended that  Dr. Ibe Kachukwu owe it a duty to the country to react to the allegation of the management of the Nigerian National Petroleum Corporation (NNPC) that he engaged in the unilateral award of multi -billion dollar contracts during his tenure as Group Managing Director (GMD).

    He remarked that even if the allegation of the NNPC GMD against the minister is true,  it cannot justify what he described as the reckless impunity that has characterized the management of the affairs of the NNPC since 1999.

    He contended however that the allegations and counter-allegations of Dr. Kachukwu and Dr. Baru over contract awards have reinforced his earlier call on President Mohammadu Buhari to relinquish the post of the Minister of Petroleum Resources and appoint a full-fledged Minister to run and coordinate the affairs on the oil and gas industry in strict compliance with the law.

    He reiterated that the board of the NNPC should also be reconstituted by reducing its present membership from nine back to sixpersons as provided for by section 1(2) of the NNPC Act.