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Convene meeting to tackle constitutional amendment, Falana tells Jonathan

Lagos-based lawyer Femi Falana (SAN) has advised President Goodluck Jonathan to convene an urgent meeting of stakeholders with a view to removing the controversial clauses from the proposed constitutional amendment.

He said once that is done, the National Assembly should pass the bill and send it back to the president for his assent.

“Instead of throwing out the baby with the bath- water, the provisions of the fourth amendment to the Constitution should be supported to the extent that it has recognised the right of the Nigerian people to enforce their socio-economic rights enshrined in chapter two of the Constitution”, he said in a statement in Lagos yesterday titled: “Diversionary controversy on constitutional amendment”.

Falana noted that in 2006, 108 amendments of the Constitution were thrown away with the third term agenda of President Olusegun Obasanjo.

He warned: “If care is not taken, the over 70 proposed amendments by the legislators may suffer the same fate.

“Therefore, President Jonathan should be advised to convene an urgent meeting of all the stakeholders with a view to removing the controversial clauses from the proposed amendment. Once that is done, the National Assembly should pass the bill and send it back to the President for his assent.”

The erudite lawyer noted that in rejecting the proposed amendment that every child be entitled to free education, the president said there was no dichotomy between public and private schools.

He emphasised the need to draw the attention of the President to section 15 of the Child’s Rights Act, 2003 and section 2 of the Compulsory, Universal, Free Basic Education Act, 2004 which have made education free and compulsory from primary to junior secondary school for every Nigerian child. “Before rejecting the amendment on the right to basic healthcare, the president ought to have been reminded that the National Health Bill 2014, signed into law by him in November last year has directed the Federal Government to fund basic healthcare with not less than one per cent of the consolidated revenue of the Federal Government. Since the amendment has merely enshrined the right to basic education and basic healthcare in the constitution, the President ought to have signed that aspect of the proposed amendments in the interest of the poor and vulnerable segment of the country.

“Since the President rejected the amendments based on the erroneous belief that the requisite constitutional requirement was not met, he ought to withdraw the letter addressed to the National Assembly and review his position on the constitutional amendment,” he said.

He recalled that President Jonathan during the presidential campaign promised to implement the recommendations of the 2014 national conference. “In fact, the Federal Executive Council has since passed a resolution for the immediate implementation of the resolutions of the confab. One of the most important recommendations is that chapter two of the Constitution on the fundamental objectives and directive principles of state policy be made justiciable. Since that recommendation and a few others are in tandem with the proposed amendment of the constitution, President Jonathan ought to have endorsed the relevant provision.

“To the utter embarrassment of the members of the National Assembly, President Jonathan decided to withhold his assent to 4th amendment to the Constitution. In his comprehensive letter addressed to both chambers of the National Assembly last week, the outgoing President challenged the procedure and the substance of the proposed alteration of the constitution.

“Having regard to the enormous resources invested in the constitutional review, the President ought to have convened a meeting with the leadership of the National Assembly with a view to ironing out the grey areas. No doubt, the National Assembly members have themselves to blame for engaging in the instalmental amendments of a Constitution imposed on the Nigerian people by military dictators.

“In view of the clear provisions of the Constitution on separation of powers, the National Assembly acted illegally and unconstitutionally when it conferred the National Economic Council, an advisory body, with the power to appoint the Accountant-General of the Federal Government. As if that was not enough, the National Assembly wants the National Judicial Council (NJC) to appoint the Attorney-General of the Federal Government.

“The legislators ought to have known that the NJC is only empowered to recommend to the appointing authorities (President and state governors) suitable persons for appointment as judges and recommend their removal from the bench.

“Having taken away the powers of the President, the National Assembly decided to increase its own powers. As far as the legislators are concerned, an amendment of the Constitution will no longer require the assent of the President. Such self-serving amendments were rightly rejected by the president”.

He said, however, that the president made a mistake on the procedure for altering the provisions of the Constitution.

Notwithstanding the approach adopted by the president in rejecting the proposed alteration, Falana urged the members of the National Assembly to refrain from exhibiting arrogance of power in the circumstance.

“The letter calls for a sober examination of the reasons adduced by the president for rejecting the controversial amendments. More so, that some of the amendments are patently illegal and unconstitutional. For instance, one of the most objectionable propositions in the 4th amendment, which was not even captured in the President’s letter is the provision of the scandalous pension for life for former leaders of the National Assembly,” the lawyer said.

April 20, 2015
Falana, TUC to Buhari: tackle corruption

Human rights lawyer Femi Falana has urged President Muhammadu Buhari to carry out a reform of the judiciary to tackle corruption effectively.

He said the judicial system has been taking over by corrupt people, adding that the incoming government owed the country a duty to re-position it for improved performance.

He said: “There is the need for Buhari’s government to address the judicial system, which in recent times has been overtaking by corrupt-minded Nigerians. The act of messing up judiciary is permitted only in Nigeria. That is why I said the new government has a job to do, if it wants to reduce corruption to its abysmal level.”

Falana told The Nation that cases involving former governors were not heard in 2007 because they were covered by immunity.

Also, the Trade Union Congress (TUC), Rivers State Chapter, advised Gen. Buhari to put in place measures that would prevent a waste of government’s resources.

In a statement by its Chairman, Comrade Hyginus Chika, the body urged Buhari to fight corruption to a standstill.

“We urged President Buhari to be dogged in the fight against corruption and the elimination of waste in governance through strengthening the institutions that fight corruption,” it added.

He said offences relating to unexplainable wealth should be punishable to deter others from commuting them.

“The government must pass into law, offence of unexplained wealth in Nigeria, and ensure that offenders are properly dealt with. People who commit the offence should be sentenced to at least 20 years imprisonment, aside forfeiting the wealth,” the statement added.

April 8, 2015
Falana asks military to vary sentences of convicted soldiers

Lagos-based lawyer Femi Falana (SAN) has asked the chief of Army staff, as the confirming authority, to vary or confirm the conviction and sentences passed on the soldiers by the courts-martial.

Falana, who made the plea in a statement in Lagos yesterday, said owing to the delay in the confirmation or variation of the conviction and sentences, the soldiers involved have not been able to file their appeal at the Court of Appeal in line with Section 183 of the Armed Forces Act (Cap 20), Laws of the Federation of Nigeria, 2004.

Section 183 of the Armed Forces Act stipulates that :”Subject to the provisions of this part, an appeal shall lie from decisions of a court-martial to the Court of Appeal with the leave of the Court of Appeal: Provided that an appeal as aforesaid shall lie as of right without the leave of the Court of Appeal from any decision of a court-martial involving sentence of death.”

Falana also urged the military authorities to discontinue the trial of officers and soldiers and set free the 70 soldiers convicted and sentenced to death for mutiny by two courts-martial, which sat in Abuja last year.

He argued that since the alleged offence of mutiny arose from the legitimate demand of the convicted soldiers for weapons to fight the Boko Haram sect, the basis of their conviction and sentence could no longer be justified.

Falana said in the alternative, the army authorities should conclude the case of the convicted soldiers without any further delay.

He argued that this has become necessary “in view of the disclosure by the Federal Government that it has just acquired adequate equipment for the armed forces and invited foreign instructors to train the soldiers on the use of the equipment”. He added that with government’s disclosure, “the officers and soldiers who had consistently demanded for weapons to fight the war have been vindicated”.

The erudite lawyer noted that 12 of the soldiers were convicted in September while the 58 others were convicted in December last year.

He said: “Since then, the army authorities have neither allowed the convicts any access to their family members and lawyers nor compiled and transmitted the record of proceedings of the courts-martial to the Chief of Army Staff for the purpose of confirming or varying the conviction and death sentences imposed on the soldiers.

“This has delayed the promulgation of the findings and denied the convicts the opportunity to challenge the verdicts of the courts-martial at the Court of Appeal.

“As if that is not enough, the army authorities have detained the convicts incommunicado in underground cells in a military guardroom in Apapa, Lagos State, instead of committing them to prison as required by the Armed Forces Act.”

Falana noted that the nation’s troops have carried out successful operations against Boko Haram sect in the last couple of weeks with the support of the multinational force drawn from neighbouring countries.

Because of the attack, the lawyer said the terrorists have been dislodged from many of the towns and villages in the Northeast region illegally seized and occupied by them since last year. Noting that the war on terror has not been fully won, he added that the armed forces and the Federal Government deserve praise for the success recorded so far in the task of restoring the country’s territorial integrity.

“With the recent acquisition of vital weapons for the armed forces by the Federal Government, it is undoubtedly clear that the troops have been mobilised and motivated to discharge the constitutional duty of defending Nigeria from the forces of internal insurrection and external aggression,” Falana said.

March 17, 2015
Falana appears in suit seeking Mbu’s removal

A lawyer- turned activist, Mr. Femi Falana (SAN), has offered to represent a lawyer, Mr. Tope Alabi, who is praying the Federal High Court in Lagos to strip the Assistant Inspector-General of Police (AIG), Mbu Joseph Mbu, of his rank and declare his office vacant for allegedly abusing his powers.

During Thursday’s hearing, Falana announced appearance for the plaintiff, and moved an ex-parte application on his client’s behalf.

The application was for leave to serve the Police Service Commission with the suit in Abuja.

“We have a motion for leave to serve the third respondent outside jurisdiction,” Falana said.

Justice Ibrahim Buba granted the application.

The plaintiff also filed three other applications which have not been heard.

They are a motion for interim injunction restraining Mbu from giving any orders to officers under him during the general election pending the hearing of the plaintiff’s motion for interlocutory injunction.

The motion for interlocutory injunction is seeking to restrain Mbu from giving any orders pending the hearing of the substantive suit.

The plaintiff also has a pending application seeking to abridge the time within which the suit will be heard and determined in view of its urgency.

In the substantive suit, numbered FHC/L/CS/149/15, the plaintiff is seeking a declaration that the first defendant (Mbu) “is unfit to be a police officer in Nigeria.”

It followed Mbu’s alleged threat to kill 20 innocent civilians for any policeman killed during the general election.

The plaintiff is praying the court to direct the Inspector-General of Police, Suleiman Abba, the Police Service Commission and the Attorney-General of the Federation,

Mohammed Adoke (SAN) (who are the second to fourth defendants) to declare Mbu’s office vacant and replace him without further delay.

Alabi said Mbu, as a senior police officer, swore to uphold the rule of law and abide by the Constitution, but has allegedly been behaving as if he is above the law.

March 5, 2015
Why Jega can’t be sacked, by Falana

Before the simulated postponement of the general elections scheduled to hold on February 14 and 28, Chief Edwin Clark and some ethnic champions had called for the removal of the Chairman of the Independent National Electoral Commission (INEC), Prof Attahiru Jega.

On account of the closeness of the group to the Presidency, not a few Nigerians believed that the Federal Government had decided to fire the INEC helmsman.

In his last media chat, President Goodluck Jonathan dismissed the rumoured plan to sack Prof Jega. He, however, said that since he appointed the chairman and members of the INEC team, he could fire any of them at will.

Since last week, it has been widely reported that Jega may be asked to proceed on terminal leave any moment from now. Having regard to the national embarrassment which greeted the removal of a former Central Bank of Nigeria (CBN) Governor Mr. Sanusi Lamido Sanusi (as he then was) last year, the attention ofthe President ought to be drawn to the limit of his powers with respect to the removal of the INEC chairman.

Pursuant to Section 155 of the Constitution, Prof Jega was appointed the INEC chairman by the President on June 24 , 2010, following the confirmation by the Senate. Section 155 of the Constitution provides that the INEC chairman shall occupy the office “for a period of five years from the date of his appointment”.

Since the appointment is for five years, certainly the term of office cannot be abridged by a pre-retirement leave of three months.

As the appointment enjoys constitutional

flavor, Jega is not occupying the office at the pleasure of the President. In other words, the President lacks the power to hire and fire the INEC chairman. Under Section 157 of the Constitution Jega can only be removed from office during his term of office by the President on an address supported by two thirds majority of the members of the Senate. And the reason for the removal has to be based on evidence of his inability to perform or discharge the functions of the office due to infirmity of mind or body or misconduct. Since the Senate is not likely to endorse Jega’s sack, it has been reported that the Presidency is toying with the idea of sending him on terminal leave.

Jega, who is a professor of political science at the Bayero University, Kano was granted leave of absence by his employer, the council of the institution, following his appointment as INEC chairman in June 2010.

Since Jega is on secondment to the INEC, he cannot be treated like a civil servant. Those who have cited the provision of the civil service rules which requires public officers to proceed on a three-month pre-retirement leave have failed to realise that the circular has to be read subject to Section 154 of the Constitution which stipulates that the INEC Chairman shall hold office for “a period of five years from the date of his appointment”. In the circumstance, Jega’s appointment cannot be validly determined until June 23, 2015.

In Independent National Electoral Commission v. Musa (2003) 10 WRN 1 at 125, the Supreme Court held that “The Civil Service Rules are not a legislation per se as provided by the Constitution, nor subsidiary legislation, as they are not made under any enabling Act or Law. These limitations are emphasised by Rule 01001 of the rules which provides in respect of some categories of public office holders that: ‘… these Rules apply only to the extent that they are not inconsistent with the provisions of the Constitution of the Federal Republic of

Nigeria in so far as their conditions of service and any other law applicable to these offices are concerned.‘ “

In view of the above categorical pronouncement of the Supreme Court, it is indubitably clear that the provision of the Civil Service Rules on three-month pre-retirement leave is inconsistent with Section 155 of the Constitution which provides that the INEC chairmen shall remain in office for “a period of not less than five years”.

In the hierarchy of the superiority of laws the provisions of the Constitution take precedence over other laws or circulars. Indeed, section 1(3) thereof states that any law which is inconsistent with the Constitution is null andvoid to the extent of its inconsistency. To that extent, the provision of the Civil Service Rules on terminal leave is inapplicable to the tenured appointment of Jega. Even in the case of Mr. Sanusi, the Presidency claimed that he was not removed from office but placed on suspension to facilitate investigation. That was the explanation adduced for removing the CBN governor via suspension without going through the Senate. But with respect to Jega, the President lacks the power to investigate, suspend or send him on terminal leave.

To confirm the autonomy of the INEC, Section 158 of the Constitution stipulates that in exercising its power to make appointments or to exercise disciplinary control over persons, the INEC “shall not be subject to the direction or control of any authority or person.”

Some have cited the case of Prof Maurice Iwu, who was sent on leave prior to his removal by President Jonathan. Unlike Prof Iwu, who had retired from the university when he was the INEC chairman, Jega is still in the service of Bayero University. By the provisions of the Universities Miscellaneous Act, the retirement age of university professors is 70 years. Since Jega is 58 he would not retire from the public service until he attains the age of 70 in 2027. In the conditions of service of university staff, there is no provision for pre-retirement leave but sabbatical leave; leave of absence; annual leave; casual leave; vacation leave and maternity leave (for female lecturers). As a public officer cannot go on pre-retirement leave twice, it will be absurd to ask Jega to go on terminal leave as INEC chairman in 2015 and then as a retiring professor in 2027.

As Jega is not a civil servant, the Head of Service of the Federation (HoSF) lacks the power to direct him to proceed on terminal leave. Indeed, the pre-retirement leave applicable in the civil service does not apply to a tenured appointment.

In a circular dated August 11, 2010, titled “Clarification on Pre-retirement Leave”, the HoSF was reported to have said that “I am to further inform you that paragraph 1 of the circular clarified that the content of the circular is only applicable to core officers who run their civil service to thirty-five (35) years of service or sixty (60) years of age and not a definite tenure as is the case under reference.”

In the light of the authoritative pronouncement of the HoSF on the matter, it will be preposterous and illegal to direct Jega to proceed on terminal leave in any manner whatsoever.

In the light of the foregoing, if the President goes ahead to sack Jega, he would have confirmed that the government has contempt for the rule of law. The President owes himself a duty to resist the pressures to remove Jega from office on March 24. Changing the leadership of the INEC barely four days to the presidential election is likely to truncate the fragile democratic process. Having commended the INEC for conducting the 2010 general elections and the governorship elections in Edo, Anambra, Ekiti, Ondo and Osun states, the President cannot find any justification for the planned removal of Jega.

March 4, 2015
Falana: Use of hijab a right

Lagos lawyer, Mr. Femi Falana (SAN) has said there is nothing wrong with the use of hijab by secondary school students.

He disagreed with a judgment of a Lagos High Court which banned the use of hijab by female muslim students in Lagos schools.

Falana spoke at the Law and Religion Conference held at the University of Lagos (UNILAG), Akoka, with the theme: Towards law and religious freedom in Africa.

It was organised by the UNILAG Centre of Human Rights, the Nigerian Bar Association (NBA) Lagos and Ikeja branches and African Consortium for Law and Religion Studies, South Africa.

Among the guests were UNILAG Vice-Chancellor Prof. Rahmon Bello, Justice Bode Rhodes-Vivour of the Supreme Court, Former Vice-Chancellor of University of Ilorin, Prof Is-haq Oloyede and National Missioner, Ansar-Ud-Deen Society, Sheik Abdur-Rahman Ahmad.

On the hijab controversy, Falana said: “It’s a way of dividing our people and denying the people of their rights as guaranteed by the Nigerian constitution.

“I think it is hypocritical here. The undergraduates are allowed to use hijab. So, there is nothing wrong in secondary school pupils using the hijab in their respective schools.”

The SAN expressed displeasure over religious related crises in the country said the religious leader and political class should focus more on how to improve on the people and society as against religious crisis.

He wondered why people now use religion as a tool of political sentiments, divide and terrorist attacks.

“If you want religious harmony to the thrive, stop recognising any particular religion over the other. This is what secularism dictates,” he said.

Reminiscing on Nigeria of the 70s, Falana said the people of the country lived together peacefully while religious tolerance and national cohesion prevailed. He wondered why people now use religion as a tool of political sentiments and terrorist attacks.

He advised: “ Our leaders need to promote religious harmony. If you want religious harmony to thrive, stop recognising any particular religion as a state religion over the other. Focus more on recognising the fundamental human right to freedom of religion.

“When you find a President going from churches to churches to preach the gospel and a Muslim President also going from one mosque to the other, it is dangerous for our nation,” he added.

Falana, who said the provisions of Nigerian constitution guarantee the right to freedom of thought and religion, stated that expression of religion, however, must not infringe on the rights of the members of the neighborhood.

Governor Babatunde Raji Fashola of Lagos State noted that religious societies and the leaders shoulder much responsibilities on issues of law and religious freedom in Nigeria.

Fashola, who was represented by the Attorney-General and Commissioner Mr. Ade Ipaye, also said it was unfortunate that religious societies have been a regular offenders of physical planning laws and tax laws in the state.

He said: “They have been offenders in terms of demolision of religious centres,”adding that this has made the state government to make some laws to cushion the effects of religious intolerance.”

March 3, 2015
Falana seeks probe

Lagos-based lawyer Femi Falana (SAN) has condemned last week’s disruption of the national conference of the Nigeria Labour Congress (NLC) and election of its national officers by persons suspected to be “hired thugs”.

Falana described the incident, which led to the hired thugs carting away ballot papers and other voting materials, as a national embarrassment, urging the NLC leadership to probe the incident.

He noted that the disruption came too soon after the postponement of the nation’s general elections.

The lawyer contended that the failure of the congress to conduct its election had exposed the country to ridicule before the international community.

In a statement yesterday in Lagos, the erudite lawyer advised the NLC to reconvene as soon as possible and conclude the election of its national officers in strict compliance with the provisions of the congress’ registered constitution.

He said history was beckoning on the congress to play a leading role in ensuring that the country’s fragile democratic process was not truncated by desperate anti-democratic forces.

Falana said as the nation’s most organised civil society body, the congress could not afford to be distracted at this critical period in the life of the nation.

The lawyer, who noted that the country was once again on the edge of a precipice, said the disruption of the conference of the labour movement was a replay of the 1993 scenario “by the service chiefs in cahoots with a faction of the ruling class”.

February 16, 2015
June 12 detractors back, says Falana

Constitutional lawyer and rights’ activist Femi Falana has urged Nigerians to be vigilant because those who plotted the June 12, 1993 debacle are scheming to derail the present democracy.

Falana, who spoke at the commemoration of the 2015 Black History Month and Beko Ransome Kuti Memorial, at Right House, Ikeja, said Nigeria was at a crossroads.

The lecture: ‘Non-violent Democratic Change’, was organised by the Committee for Defence of Human Rights (CDHR).

He said: “The Senate President, David Mark, said last September that ‘election is not our agenda now, we are fighting a war’.

“The National Security Adviser, Col. Sambo Dasuki, has had his way on the postponement of the elections. When he was the aide-de-camp to General Ibrahim Babangida, he and David Mark were among the colonels who said over their dead bodies would Babangida hand over to Chief MKO Abiola.

“Those who plotted the June 12 annulment are back, but are we going to allow them? If no, that is what the ballot demands from us. While we want to change peacefully, we have no apology to say that those who make peaceful change impossible make a violent one inevitable.”

Falana said Nigerians were languishing in poverty, but the Federal Government was depriving them of the opportunity to make a choice.

“We are insisting that this election must hold and whoever wins must be allowed to govern the country.

“I am challenging Chief Edwin Clark and others. We never saw them when we marched on the streets of Lagos and Abuja to proclaim Goodluck Jonathan as acting President. When we were on the streets of Lagos, where were they?

“Quote me, in fact Baba Clark called me during one of our protests and said Femi my son, keep it up. We, of the Niger Delta cannot join this struggle now. I said why sir, why? He said because Jonathan is our son. I said what has your son got to do with this? It was Prof. Wole Soyinka at 71 then who led us in the protest.”

The lawyer said the service chiefs have committed mutiny, stressing that this was the same offence for which some soldiers were charged.

He urged Nigerians to resist the attempt to force the Independent National Electoral Commission (INEC) Chairman, Prof Attahiru Jega, to proceed on terminal leave, stressing that it was unconstitutional.

The United States Consul General Jeffrey Hawkins reiterated the need to abide by the peace accord signed by the leaders of the parties.

“As President Jonathan said in his New Year’s message, no one’s political ambition is worth the blood of any of your countrymen, women and children.

“General Muhammadu Buhari recently tweeted, electoral violence is unacceptable and every Nigerian’s life is sacred. Both presidential candidates have also signed the Abuja Accord, which commits them to running exclusively issue based campaigns,” he said.

The host, former National President CDHR Olasupo Ojo said the mobilisation to save Nigerians had begun.

“Nigeria belongs to all of us and we have the right to use the ballot they way we want it. It our right to exercise it, it is our property and nobody can take it away from us.”

February 12, 2015
Falana advises students on media ethics

A frontline lawyer, Mr Femi Falana, SAN, has urged the media to stick to objectivity in reporting the coming general election. The human rights activist spoke last Tuesday at the Lagos State Polytechnic (LASPOTECH), where he was the guest speaker at a lecture organised by School of Communication and Liberal Studies.

Falana, who spoke on the theme: 2015 Elections: Legal and ethical issue in media reporting, said the admonition became necessary to caution the youth from reporting falsehood about electioneering on the social media.

The activist said it was time to educate students and youths using social media on the ethics of journalism and law guiding reportage ahead of the general election to ensure peace of the country is not jeopardised.

Falana said: “One of the ethical objectives of the media is to present a balanced and fair reporting to the members of the public. The reporting of the coming election should also conform to these codes of responsible journalism.”

To report the conduct election, Falana said anyone disseminating information through any medium must also be guided by Constitution and Electoral Act. He urged the students to engaged social media in a positive way, saying the responsibility to choose credible leaders rested on the youth because of their population.

He urged INEC to allow anyone who could not get the Permanent Voter Card (PVC) to vote for the candidate of his choice, rather than being disenfranchised to exercise his right.

The event was attended by students from various department and top management officials of the institution, including the Rector, Dr Abdulazeez Lawal.

February 5, 2015
Falana seeks establishment of electoral offences tribunal

Lagos lawyer Femi Falana (SAN) has urged the Federal Government to set up an Electoral Offences Tribunal to successfully tackle violence and irregularities during elections.

The tribunal, he said, would be “an autonomous and ad hoc body, as it may not have much to do in between election period”.

Falana’s advice is in consonance with Ahmed Lemu Panel’s recommendation in 2011, which said electoral offenders ought to be prosecuted in order to stop electoral violence.

In a statement in Lagos titled: “How to stop political violence”, Falana said: “It is high time an end was put to the official endorsement of politically motivated violence in the country.”

According to him, President Goodluck Jonathan should set up the tribunal having signed the non-violence accord with the presidential candidates of other political parties.

Falana said should the federal government declined to do so, the Independent National Electoral Commission (INEC) should prosecute electoral offenders in accordance with Section 150 of the Electoral Act.

“But since the INEC lacks the capacity to discharge the onerous statutory duty, the Nigerian Bar Association (NBA) should take up the task of prosecuting electoral offenders throughout the country.

To ensure the success of his proposal, the lawyer said the NBA should be prepared to collaborate with the Body of Attorneys-General and the Nigeria Police, emphasising that “unless electoral offenders are punished as envisaged by the Electoral Act and the Constitution, the subversion of the democratic process would continue unabated”.

Ahmed Lemu Panel had in 2011, made a strong case for the setting up of “an autonomous and constitutionally recognised Electoral Offences Tribunal, but which may be an ad hoc body as it may not have much to do in between election period”.

Falana recalled that in 2007, President Umaru Yar’adua admitted that the election which brought him to power was flawed and that in a bid to sanitise the electoral system, he set up the Muhammadu Uwais’ Electoral Committee .

“Among other recommendations the Committee called for the establishment of an Electoral Offences Tribunal. The Yaradua Administration rejected the recommendation without any justification. However, following the political violence, which greeted the announcement of the results of the presidential election in some states in the North and Akwa Ibom in April 2011, President Goodluck Jonathan set up the Ahmed Lemu Panel to investigate the crisis.

“From the detailed report of the Panel, 943 people were killed while 838 others were injured. While the Federal Government has paid over N10 billion as reparation to the victims of the riots, the 626 suspects, who were arrested in connection with arson, culpable homicide and other grave offences perpetrated during the civil disturbances have been left off the hook on account of official impunity that has become the order of the day under the current political dispensation,” he recalled.

He argued that since Nigeria claims to operate under the Rule of Law, there is no justification that suspects involved in sabotaging the electoral process have not been charged to any criminal court.

According to him, “the crisis of impunity in the land has been compounded by the partisan involvement of the authorities of the police, the armed forces and other security agencies in the political process. “Although there are adequate and elaborate provisions in the Electoral Act, 2010 as amended and the penal statutes to deal with political violence and electoral malfeasance, the managers of the neo-colonial state lack the political will to bring electoral offenders to book,” he said.

Falana recalled that a few weeks ago, former Secretary-General of the United Nations (UN), Mr. Kofi Anan and the former Secretary-General of the Commonwealth, Chief Emeka Anyaoku, jointly presided over the signing of a Non-Violence Accord by the presidential candidates of political parties that are taking part in this month’s Election.

“At the well celebrated ceremony which held in Abuja the candidates of the two leading political parties embraced each other. While the media and several people were excited with the development. I expressed the view that the so called peace accord would not stem the tide of political violence in the country due to the violent nature of the electoral system coupled with official impunity.

“In a number of decided cases, the courts have held that candidates sponsored by political parties cannot be held vicariously liable for politically motivated violence and electoral malpractice carried out on their behalf unless they can be directly linked with instigating or directing their supporters to engage in such criminality. Indeed, political leaders usually dissociate themselves from acts of violence by condemning the perpetrators.

“However, if the suspects are charged to court the leaders turn round to engage the services of lawyers to defend them. In many cases, attorneys-general are directed to file nolle prosequi to stop the prosecution of suspects, who belong to the ruling parties. Hence, the cases of the hundreds of suspects charged to court by the Police for electoral offences committed during the 2003, 2007 and 2011 general elections were abruptly terminated in all the states of the federation,” he argued. Falana said Nigerians have witnessed a reign of terror by armed thugs, who have engaged in the bombing or burning of party secretariats; destruction of vehicles belonging to political parties; harassment of political opponents; wearing of masks by “security personnel” at campaign rallies; the extra-judicial killing and brutal attacks of innocent people at party congresses and primary elections; the unprovoked assault on judges; the throwing of stones at leaders among other vices in the last few months.

He noted that in spite of the warning by the electoral officials, the illegal use of official vehicles by public officers for political campaigns has continued adding: “top political leaders have continued to make inciting statements. A governor published a death wish advert, which could have provoked ethno-religious riots. Another governor attended a meeting where ex-militants threatened to declare war on the Republic if the President is “dethroned” in the forthcoming general election.

“ It is hoped that those who are beating the drum of war will be called to order by President Jonathan. After all, they never took part in the streets protests held in Lagos and Abuja, which compelled the National Assembly to recognise Dr. Jonathan as the Acting President in May 2010. Neither did they blackmail Nigerians from all parts of the country to vote for the President in 2011.

“With respect to the stoning of President Jonathan during a political rally in Bauchi, last week, Governor Isa Yaguda has pointed accusing fingers at some unnamed members of the ruling party. This is a serious allegation, which should be investigated by the Police with a view to bringing the culprits to book,” he said.

He said the bulk of the infractions of the Law highlighted above took place after the signing of the peace accord. The National Human Rights Commission (NHRC) has said “signing a peace pact is easy, the more difficult part is to ensure that the political office seekers and their supporters work within the rules of engagement”.

Falana pointed out the fact that office seekers and their supporters cannot operate within ‘the rules of engagement” if they are treated like sacred cows.

He posited that there is need to let political office seekers realise the fact that executive immunity does not cover election petitions and electoral offences.

Citing Turaki v. Dalhaltu (2003) 38 WRN 54 at 168 he said: “Oguntade JCA (as he then was) held that “If a governor were to be considered immuned from court proceedings, that would create the position where a sitting governor would be able to flout election laws and regulations to the detriment of other persons contesting with him. This will make a nonsense of the election process and be against the spirit of our national Constitution, which in its tenor provides for a free and fair election.”

February 3, 2015