The Nation Newspaper

Tag: FEMI FALANA

  • The monetisation of bail in Nigeria

    The monetisation of bail in Nigeria

    Introduction Having attended many fora organised  by the Nigerian Bar Association (NBA)  in recent times without impacting positively on the justice sector I have come to the painful conclusion that Nigerian lawyers are reluctant to address the crisis of injustice in the society because they have become beneficiaries of the dysfunctional and unjust legal system. Unlike in the past when the NBA led Nigerian lawyers to defend the fundamental rights of the Nigerian people the NBA has since lost its voice among the progressive organisations in the country. Sadly, most branches of the NBA have compromised themselves to the extent that they lack the moral courage to call the national leadership to order. It was therefore with reluctance that I accepted the invitation of the Human Rights Committee of the Akure branch of the NBA to make this presentation.

    Under the adversarial criminal justice system presumption of innocence inures in favour of accused persons. Accordingly, every criminal suspect is entitled to bail granted by either the police or the court. But like all civil and political rights which are enjoyed exclusively by rich individuals who have the financial wherewithal indigent criminal suspects are economically disabled from enjoying the right to bail. Thus, out of the country’s small prison population of 51,000 inmates only 12,000 have been convicted. The remaining 39,000 inmates have either been refused bail or granted bail but unable to produce reliable sureties or fulfill other onerous conditions set down by either the law enforcement agencies or the courts.  In this presentation we shall examine the monetization of bail which is the raison d’être for denying bail to the majority of indigent accused persons in Nigeria.

    The Concept of Bail
    According to the Black’s Law Dictionary ‘bail’ is defined as “a security such as cash or bond; especially security required by a court for the release of a prisoner who must appear in court at a further trial”. In Nwude v. Federal Government of Nigeria (2004) 41 WRN 124 at 145 the concept of bail was examined by the Court of appeal when it held that “the whole concept of bail generally is about surety or sureties taken by a person duly authorised for the appearance of an accused person at a certain day and place to answer charges leveled against him and be justified by law”.

    The Court also approved the definition of bail in Kenny’s Outline of Criminal Law to the effect that it is a “contract whereby an accused person is delivered to his surety or also the contract of the surety himself. The primary object of it in any event is to ensure that the accused person will attend court to stand his trial.” In Mohammed Abacha v. The State (2002) 5 NWLR (PT 761) 187 the Supreme Court defined bail as the “means to set at liberty a person arrested or imprisoned on security being taken for his appearance on a day and place certain”
    It appears from the above definitions that the sole purpose of granting bail to accused persons pending trial is to procure their release by ensuring future attendance in Court and compelling them to remain within the jurisdiction of the court while bail pending appeal is granted in exceptional circumstances to prevent a convict from serving a jail term that is likely to be set aside. See Fawehinmi v. The State (1990) 1 NWLR (PT 127) 486.
    No doubt, bail is always tied to the ownership of landed property and money in all capitalist societies. But since the Constitution has placed premium on equality before the law judges should desist from imposing monetary and property related bail conditions on indigent criminal suspects. In a case involving a commercial driver charged with murder for hitting a judge with a bus on Moloney Street in Lagos the driver was denied bail by the trial judge.  Even though we succeed in getting bail for him in the Court of Appeal the applicant has not been able to meet the bail terms of two sureties in the sum of N100,000 each of whom must be land owners in Lagos State.
    Since the essence of bail is to secure the attendance of accused persons at their trial family members and close friends of criminal suspects should be allowed to stand surety for them. In 1992, the late Fela Anikulapo-Kuti was charged with murder with two of his aides the Lagos High Court. The trial judge admitted the defendant to bail on the condition that the defence counsel or his senior brother who was then a minister was prepared to stand surety for him. The bail condition was met when the defendant’s senior brother stood surety for him. But it took over a month before we could get land owners to take out the other two defendants on bail.

    The right to bail
    It is submitted that the fundamental right of an accused person to personal liberty includes the right to bail pending trial. Specifically section 35(4) of the 1999 Constitution provides as follows:
    “Any person who is arrested or detained in accordance with subsection (1)(c) shall be brought before a court of law within a reasonable time and if he is not tried within a period of;
    a. two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail;
    b. three months from the date of his arrest or detention in the case of a person who has been released on bail; he shall be (without prejudice to any further proceedings that may be brought against him) be released to either unconditionally or upon such conditions as are reasonably to ensure the he appears for trial at a later date.”
    The presumption of innocence in favour of an accused person is guaranteed by Section 36(5) of Constitution 1999, which states as follows:
    “Every person who is charged with a criminal offence shall be presumed to be innocent until he proved guilty …”
    The combined effect of both sections 35(4) and 36(5) of the Constitution is that the liberty of an accused is jealously guarded by the Constitution, irrespective of the nature or gravity of the offence charged. In other words a criminal suspect who is presumed innocent by the Constitution should not be unduly incarcerated by the police or a trial court. In Eda v Commissioner of Police, Bendel State (1982) 2 NCLR 219 the Court of Appeal held: ”when a person is arrested or detained by the Police in connection with an allegation on reasonable suspicion of a crime and they are actively pursuing investigation of the matter, the duty of the police is in appropriate case to offer bail to the suspect and for bringing him to court of law within 1 day or 2 days as the case may be no matter under whatever sections of the Criminal Procedure Act or Police Act 1967 the police may purport to be acting”.
    It is trite law that there has to be a reasonable suspicion that a person has committed a criminal offence before he can be taken to court. The practice of arraigning suspect in court on the basis of a holding charge was declared illegal in Ogor & Ors v. Kolawole (1983)1 NCR 342. Also in the case of Akokhia v. Commissioner of Police, Lagos State (1984) 5 NCLR 836 the court decried the practice of preferring a holding charge against accused persons by the police.
    Under the Criminal Justice (Release from Custody) Special Provisions Act (Cap C40) Laws of the Federation of Nigeria 2004, the Chief Justice and Chief Judges of the states are empowered to order the release of persons whose bail was refused and have been detained for a period longer than the maximum period of imprisonment prescribed for the offence. In Edwin Iloegbunam & Ors v. Richard Iloegbunam & Ors (2001) 47 WRN 72. The Appellants were arraigned on a holding charge of attempted murder before the Magistrate’s Court, Ogidi, Anambra State on 3/7/2000. The trial court refused the application for bail and ordered that the appellants be remanded in prison custody. Before the hearing date the Chief Judge of Anambra State visited the Onitsha Prisons on 27/9/2000 and ordered the release of the Appellants on bail.
    Upon the release of the Appellants the Respondents reacted by filing an ex parte application at the Federal High Court, Lagos for the arrest of the Appellants. The application was granted and they were re-arrested and detained in prison custody. Dissatisfied with the order for their re-arrest and detention, the appellants approached the Court of Appeal for redress. In allowing the appeal the Court of Appeal held:
    “That there is power in the Chief Justice of the Federation or any of the Chief Judges of the States to order the release of persons detained in prison custody in the exercise of their power under section 1(1) of the Criminal Justice (Release from Custody) (Special Provisions) Act Cap 79 Laws of the Federation of Nigeria 1990 is not in doubt. The exercise of that power by the Anambra Chief Judge would definitely constitute a different cause of action for the present respondents if they feel aggrieved by it. And an action founded on the exercise of that power which action is challenging the authority of the Chief Judge is one that should be brought before the High Court of Anambra State by virtue of Section 272 of the 1999 Constitution.”
    Before granting bail to accused persons a trial court is enjoined to consider the (1) gravity of offence (2) the severity of punishment (3) the character of the evidence and (4) the rampancy of the offence. See Rex v. Jammal, 16 NLR 54; Majidadi v. Commissioner of Police (1984) 5 NCLR 847 and Dantata v. Inspector General of Police (1958) NRNLR 3. In Onu Obekpa v. Commissioner of Police (1981) 2 NCLR 420 it was held that a person accused of a criminal offence, other than a capital offence has a right to be released before trial in as much as the trial is going to last for more than two months.

     

     

    Bailable Offences
    In criminal proceedings an applicant can seek bail at three different stages i.e bail after arrest by law enforcement agents before arraignment; bail after arraignment but pending trial of the substantive charge and bail after conviction but pending the determination of an appeal filed against the conviction and or sentence before an appellate court. An applicant whose application for bail has been urged down by a High Court has a right of appeal to an appellate court for a reconsideration of the request.
    Contrary to the general belief that some offences are not bailable I wish to submit that there is no offence under the criminal and penal codes that is not bailable. It is within the discretion of a trial court to admit an accused person to bail once there is assurance that he/she will attend court for trial. But the discretion must be exercised judicially and judiciously. In M.K.O. Abiola v. Federal Republic of Nigeria (1994)1 NWLR PT 370 Pg 155 it was held that a person charged with a capital offence may be admitted to bail depending on the circumstances of the case. Accordingly, the Appellant who was facing a charge of treason was admitted to bail in liberal terms.
    In Ibori v. Federal Republic of Nigeria (2009) 3 NWLR (PT 1127) 94 at 106 it was held by the Court of Appeal that “no matter how seemingly serious, grave, heinous or unconscionable an alleged offence or offences committed by an accused person might look, he is still entitled to that presumption as an article of faith and a matter of right guaranteed by the Constitution.” In Abacha v. The State (2002) All NLR 1 at 10 the Supreme Court held that “it is not unusual to grant bail in capital offences or where the Applicant has been convicted and sentenced and his appeal is pending. This can only be done when exceptional circumstance is shown”.

    Commercialization of Bail.
    In every police station in Nigeria it is boldly written that “bail is free”. But in actuality bail is sold as suspects are extorted before they are admitted to bail by the police.  Although a detained suspect has the constitutional right to consult a legal practitioner police officers are very hostile to lawyers who turn up in police stations. In order not to frustrate the police from collecting bail fees from suspects lawyers are always advised to wait for their clients’ arraignment in court.  Police authorities are not unaware of the unwholesome practice as no grant is made available to run any of the over 10,000 police stations in the country. The embarrassing phenomenon was confirmed by several divisional police officers in a recent survey conducted by the Punch newspaper where it was revealed that police stations are run from extortion of suspects and donations from generous members of the public.
    Upon arraignment at the magistrates and area courts accused persons are made to pay for bail with the connivance of defence counsel. Whereas bail is granted in the open court it is approved in the chambers of some corrupt magistrates upon the payment of negotiated sums of money. There have been reports of frivolous charges deliberately filed in the courts by the police for the sole purpose of extorting money from “accused persons”. A number of lawyers and magistrates shamelessly participate in the fraudulent commercialization of the liberty of such innocent people.
    A writer has acknowledged that we live in an era of the “marketizaton of everything”. Hence the Lagos State government has monetised bail in total disregard of the rising inequality in the society.
    Thus, section 116(2) of the Administration of Criminal Justice Law, 2011 provides that, “The Court may require the deposit of money or any other security as specified by the Court from the Applicant and/or his surety before the bail is approved”. (Michael J. Sandel: What Money Can’t Buy Penguin Books, 2012 P. 203: The Moral Limits of Markets.
    The application of the law by magistrates has forced many indigent criminal suspects to remain behind bar on account of their inability to provide monetary security.

     

    In Femi Falana v Attorney-General of Lagos State (Unreported) Suit No: ID/79M/2010 the constitutional validity of the posting of monetary security to entitle a criminal suspect to bail was challenged at the Lagos High Court. Upon hearing the case the learned trial judge upheld the objection of the respondent that the claimant lacked the locus standi to institute the action. It is however doubtful if the court paid due regard to the case of Eyu v. The State (1988) 2 NWLR (PT 78) 602 at 612 where Oguntade JCA (as he then was) held:
    “…Since there is a presumption of innocence in favour of an accused, it seems to me odd and oppressive that the Appellant in this case had been called upon to deposit the sum of ¦ 400,000,00k as condition for bail. Is it not possible she may at the end be found not guilty of the offence? Why ask her then to deposit that very sum she was alleged to have received under false pretences? If the sole purpose of granting bail is to enable an accused come back to take his trial. I do not see that it is necessary to introduce a test of pecuniarily to attain that end. For even an accused who is able to deposit ¦ 400,000,00k may still jump bail ….’’

    In Mathas Onuigbo v. Commissioner of Police (1995) NWLR (PT 34) the Court of Appeal declared illegal the demand for deposit of N600 cash attached to the Appellant’s bail. In Oluwole Makinde v. The State (Unreported) Suit No: SC/8/1988 the Supreme Court equally set aside the condition of N1 million deposit in the Central Bank, Kano Branch or a bank guarantee of N1 million imposed by the Court of Appeal for the securing the bail of the Appellant.

    In view of the settled position of the law on cash deposit for bail it is submitted that Section 116(2) of the Lagos State Administration of Criminal Justice Law is illegal, unconstitutional, null and void as it is inconsistent with Sections 35(4) and 36(5) of the Constitution. It ought to be expunged from the law by virtue of Section 1(3) of the Constitution. I am in full agreement with Abdu Aboki JCA when he opined that:

    “It is improper to impose unnecessary and unfulfillable conditions of bail outside the provisions of the law on an accused person to the point of almost rendering the bail nugatory. Bail applications should not be refused indirectly in case of bailable offences or where bail is automatic in case of simple offences or offences punishable with less than three years imprisonment by imposing conditions such as letters of recommendation from sureties’ place of work or tax certificate, three months pay slips from sureties’ place of work. Grants or original Certificates of Grants or original Certificates of Occupancy by sureties in Court and other harsh requirements.” (Justice Abdu Aboki, JCA, Fair Hearing and Bail in NJI Law Journal, 2009 P. 58).

    Bail for Accused Persons in Corruption Cases

    In line with their statutory duties the anti-graft agencies have filed criminal charges against former governors, former ministers, serving legislators and other politically exposed persons. But as soon as the suspects are arraigned in court they are remanded in custody for a few days. Once they are granted bail they apply for their passports to enable them to travel abroad either to visit members of their families or to honour medical appointments.

    Thereafter, they proceed to challenge the jurisdiction of the court or the competence of the charge or the venue of the trial. If the decisions of the trial courts are not in their favour they promptly file interlocutory appeals and ask for stay of proceedings before the trial court or the Court of Appeal or the Supreme Court pending the final determination of such appeals. By the time the appeals are determined which may take up to 10 years or more, the trial judge may have retired while the witnesses may have lost interest in the case.

    In a display of class solidarity the Economic and Financial Crimes Commission is in the habit of charging politically exposed persons and other influential criminal suspects to court with money laundering which attracts a maximum punishment of two years imprisonment or payment of fine. Even though the evidence in support of the charges discloses economic sabotage of monumental proportion such highly placed suspects are ordered by the trial courts to be remanded in the comfortable cells of the Economic and Financial Crimes Commission for a few days pending the hearing and determination of their bail applications. However, ordinary Nigerians who are charged with fraud, stealing, obtaining by false pretences and other economic and financial crimes are hardly granted bail by the courts. Even when bail is granted to them they are not able to meet the conditions which are usually tied to property. In the process such defendants may remain behind bar throughout the duration of the trial.

    But when it comes to cases of economic and financial crimes involving grand corruption the courts have always waxed eloquent in defending the fundamental rights of accused persons to personal liberty. Not only have they been admitted to bail in liberal terms the passports of such influential accused persons have been released to enable them to travel abroad to visit their family members or attend business meetings. In Ibori v. F.R.N. (2009) 3 NWLR (PT 1127) 94 at 104-105 the Court of Appeal held:

    “The scenario painted by the 1st Respondent is better appreciated if the Applicant was still in prison custody, but he is not; he was admitted to bail on the 11th of February 2008, and has since been treading the Nigerian soil and breathing the Nigerian air as free as any innocent man – See Saidu v. State (1982) 1 NCR 89; (1982) 4 SC 41. If we buy into the 1st Respondent’s argument, it would mean that an accused person, who is on bail and presumed innocent, is still confined to the prison of Nigeria. He would then wear the tag and toga of a criminal, who should never leave the country for fear that he would be arrested in another country. How preposterous; the applicant is already on bail, and merely wants his passports released to him so that he can travel and see to his health and other personal matters, and I do not see why he should be denied.”

    Bail in Corruption Cases

    Before the Ibori case the Court of Appeal had refused to grant applications for bail in serious cases of economic and financial crimes. For instance, in rejecting the appellant’s application for bail in Ekwenugo v. Federal Republic of Nigeria (2001) 6 NWLR (PT 708) 171 the Court held that “If there is a reasonable suspicion that a person has committed an offence his liberty may be impaired temporarily. In the same vein, a person’s liberty may be tampered with so as to prevent him from committing an offence. In short it is clear that no citizen’s freedom is absolute. The freedom or liberty of a citizen ends where that of the other man starts.”

    In that case, while enjoining judges to strive to operate the law for the attainment of social engineering Fabiyi JCA (as he then was) said “Nigerian judges do not operate in utopia. We operate in Nigeria. And no Nigerian judge can rightly claim he has not heard that Transparency International rated our nation as the most corrupt in the whole universe in the year 2000. This is ear-aching. Should judges, in the prevailing circumstances, pat Advance Fee Fraud accused persons on the back under the cloak of human rights? I think not.”

    In Nwude v. Federal Republic of Nigeria(supra); Ofulue v. Federal Republic of Nigeria (2006) EFCLR 100; Anajemba v. Federal Republic of Nigeria the Court of Appeal dismissed the bail applications filed by the Appellants. The progressive stand was endorsed by the apex court in Attorney-General, Abia State v. Attorney-General of the Federation (2006) 16 NWLR (PT 1005) 265 at 389 when Tobi JSC warned every potential treasury looter to desist from his nefarious activities as “the Independent Corrupt Practice and Other Offences Commission (ICPC) and the Economic and Financial Crimes Commission (EFCC) are watching him very closely and will, without notice, pounce on him for incarceration after due process.”

    It is significant to note that the refusal of bail to such influential criminal suspects at the material time forced many of them to plead guilty to the charges pending against them which led to their conviction. But as a result of the dangerously liberal disposition of the Court of Appeal in the Ibori case bail has become automatic for everyone charged with corruption and other economic and financial crimes notwithstanding the gravity of the offence and the implications for the national economy.  In view of the fact that corruption has serious negative implications for the national economy and the development of the country the Court of Appeal ought to review its stand on bail with respect to corruption cases.

    After all, notwithstanding the liberal judicial attitude to applications for bail filed by politically exposed persons charged with serious corruption cases the courts have not hesitated to deny bail to persons charged with treason on account of their alleged involvement in civil disturbances. See the cases of Faseun v. A.G.F (2007) 11 WRN 87 and Gani Adams v. AGF (2006) 44 WRN 46. In Dokubo Asari v. F.R.N (2007) 30 WRN 1 at 38 the Supreme Court held:

    “Where national security is threatened or there is the real likelihood of it being threatened human rights or the individual right of those responsible take second place. Human rights or individual rights must be suspended until national security can be protected or well taken care of. This is not anything new. The corporate existence of Nigeria as a united, harmonious, indivisible and indissoluble sovereign nation, is certainly greater than any citizen’s liberty or right. Once the security of this nation is in jeopardy and it survives in pieces rather than in peace, the individual’s liberty or right may not even exist”.

    The Way Forward

    i. As every person in Nigeria is constitutionally entitled to personal liberty it is no longer permissible for law enforcement agencies to detain any criminal suspect without filing a charge against him within 24 or 48 hours. Under the new human rights legal regime in Nigeria the indiscriminate arrest and detention of persons without trial should be taken up by the NBA. Like the human rights bodies the NBA should take advantage of the provisions of the Fundamental Rights Enforcement Procedure Rules, 2009 to institute actions in the appropriate High Courts to secure the enforcement of the fundamental rights of several people who are illegally arrested and detained by the police and other law enforcement agencies.

    ii. The NBA should direct each of its 100 branches to be in regular touch with the NGO human rights bodies and the State Chapter of the National Human Rights Commission, the Legal Aid Council and the Office of the Public Defender with a view to having a coalition to challenge illegal arrest and detention of the Nigerian people.

    iii. The NBA should lead a campaign for the payment of monetary damages awarded by courts in favour of persons whose fundamental rights are violated by the police and the security forces. In the case of Fukura v Attorney -General of the Federation the sum of N100 million was awarded against the defendant by the Borno State High Court. Similarly, the Lagos high court ordered the Defendants  to pay N120 million to the two applicants in Okeke & Anor v Rear Admiral Around and Others.  With respect to the illegal military invasion of Odi in Bayelsa State and Zaki Biam in Benue State  the Federal High Court has awarded the damages of N137 billion and N42 billion respectively against the Federal Government. It is my belief that if the aforesaid judgment debts have been paid the Federal Government would have been compelled to arrest the incessant abuse of fundamental rights of Nigerians by law enforcement agencies.

    iv. The Nigerian Bar Association should also liaise with the Body of Attorneys-General with a view to formulating some guidelines for dealing with the arrest and detention of criminal suspects. For instance, most police stations are always crowded with detainees who arrested for wandering when the Vagrancy Law was abolished in 1986. The police should be restrained from applying a repealed law to violate the fundamental right of poor people to liberty.

    v. Lawyers in the federal and state ministries of justice should draw the attention of the police and other law enforcement agencies to the case of Lufadeju v Johnson which requires that suspects whose cases are under investigation be taken to court for remand orders which are subject to regular reviews until the conclusion of investigation and the filing of charges in court.

    vi. The NBA should sanction its members who collude with law enforcement agencies to arrest and detain persons who breach contracts. In other words lawyers should be discouraged from turning civil cases to financial and economic crimes so as to enable the EFCC to arrest and detain innocent persons.

    vii. The NBA should monitor the office of the Director of Public Prosecution in each to ensure that the writing of legal advice in respect of criminal cases is not delayed to prevent abuse of the rights of suspects to liberty.

    viii. The NBA should invite the Chief Justice and Chief Judges to visit the prisons whenever it is established that awaiting trial inmates ought to be released from prison custody. Such visits should be based on information officially sourced and obtained from the prison management.

    Conclusion

    In concluding this paper, I wish to urge Nigerian lawyers to take more than a passing interest in the political economy of the country’s neo-colonial capitalist system which is firmly rooted in injustice. Nigerian lawyers and judges should appreciate that majority of indigent criminal suspects cannot enjoy the right to bail as long as it tied to money and property. The members of the legal profession should stop promoting the legal shibboleth of equality before the law. In his keynote address at the 1985 Annual Conference of the Nigerian Bar Association held in Port Harcourt, River State the Late Dr. Aguda exposed the myth of equality before the law when he said:

    “To the best of my knowledge and experience there is nothing like equality before the law, at least not the way the law is operated today. It is nothing but a myth created by our political rulers and the lawyers to give cold comfort to the ‘common man’, so that they, that is our political rulers and the lawyers, can have a peace of mind. But the earlier we disturb that peace of mind the better…

    We cannot say that we are administering law and justice and shut our eyes to social and economic injustice around us. We must struggle to ensure that none of our citizens suffer unnecessary from want of food, adequate housing, and clothing. It is only after we have succeeded in this regard that the common man can hope to receive justice from us and the law we practice.”

     

  • Falana seeks inquest into Egypt’s killings

    Falana seeks inquest into Egypt’s killings

    Lagos lawyer, Mr. Femi Falana (SAN) has asked the International Criminal Court (ICC) to institute an inquest into the killings of pro-Morsi protesters in Egypt.

    His request was contained in a letter titled: “Request for Inquiry into the brutal killings of Pro-Morsi Protesters in Egypt,” addressed to the ICC Special Prosecutor, Ms Fatou Bensouda.

    The activist pointed out that unless the ICC acceded to his request, without further delay, the illegal killings would continue unabated in Egypt.

    He suggested that in the interim, the prosecutor may apply to the ICC to issue a warrant for the arrest of General Abdel Fattah al-Sisi for crimes against humanity

    “Since the Egyptian military authorities sacked the democratically elected government headed by President Mohammed Morsi on July 3 there has been a crackdown on unarmed demonstrators in several parts of Egypt.

    “In particular, genocidal attacks have been targeted at the members and supporters of the Muslim Brotherhood who have been demanding for the reinstatement of the dissolved democratic structures. In the process, scores of unarmed protesters have been killed by the Egyptian security forces.

    “As the protests have not stopped in spite of the killings the head of the armed forces, General Abdel Fattah al-Sisi has been inciting the supporters of the military backed Interim Government to stage counter-protests which have since led to further bloodshed and killings,” he said.

     

  • Joining issues with the National Assembly

    Femi Falana is one Nigerian that needs no introduction, from his days as an undergraduate in the then University of Ife, Ile Ife (now Obafemi Awolowo University), the lawyer and human rights activist who at a time was the former president of the National Association of Democratic Lawyers and former chairman of the West African Bar Association (WABA), has always been at the forefront in the quest for justice and fairness in society. Falana became a human rights activist as early as 1983 when he took bail of some university students who had been unlawfully remanded in prison custody; he is still in the fight to date. He is renowned for providing free legal services to the poor and disadvantaged, and as is often the case, he has been detained numerous times by the security agencies for his activism.

    He was the lead speaker at the just concluded 11th Coca-Cola/NBC sponsored Campuslife Correspondents Workshop with the theme “Building a drug-free and non-cultist generation” in partnership with The Nation. The legal luminary walked into the venue of the workshop right on time and after exchanging pleasantries and receiving a loud and standing ovation from the more than 50 undergraduates from tertiary institutions across the country he got busy with his blackberry phone. I thought he was replying a text message, but it was when he started his lecture that we got to know that he was busy writing his lecture notes there and then!

    He came right from the onset with a smoking gun and took a rather unusual route to treating the topic of discussion; nothing was projected on the screen behind him as expected of most lectures and there were no “handouts” to pass around and some of our students were a bit confused when he started because he took a historical route to tackling the subject which only started making sense as he progressed.

    The popular analogy of President Goodluck Jonathan that he had no shoes when he was growing up which elicited millions of sympathy votes that brought him into power was the starting point of his presentation. “But most of us in his generation had no shoes, and where we do, they were only meant for special occasions like Christmas and Easter celebrations.” But in spite of this, the Nigerian state invested massively in their future to ensure that poverty is banished from the land by investing in education. Leading the way was the Western regional government in 1955 which laid the foundation for the educational advancement of the region so much so that by 1976 the Western model was adopted as a National education policy.

    Walking down memory lane, he pointed out that the Federal Government provided loans to students while state governments provided bursary allowance to reduce the burden of quality education on the students who even had the luxury of having laundry departments that took care of their laundry needs. Employers often pay regular visits to campuses to recruit prospective employees before the completion of their studies.

    Vacation jobs were also readily available and students have no reason to be idle, even secondary school leavers then registered with the ministry of labour and whenever there were vacancies in any of the factories scattered around Lagos they were contacted and given employment, this was at a time when there were no mobile phones.

    But all these, as our speaker stressed, may appear like tales from another planet due to the gross mismanagement of the economy from 1980, when “the dreams and aspirations of our youth were shattered, things got worse by 1986 when the regime of General Ibrahim Babangida introduced the Structural Adjustment Programme (SAP). Babangida told the nation that there was ‘no alternative to SAP’, but it was merely a tool by western imperialist to pauperise Nigerians. Attempts by late Gani Fawehinmi, I and others to challenge the legality of SAP were truncated by the military.”

    Confessing that he was up all night monitoring the political development in Egypt and the lesson therein, Falana said the crisis is merely a “street protest” and not a “revolution” as is being erroneously portrayed because it clearly lacked all the elements and strategy of a revolution like clear cut leadership and goal. He likened Egyptian scenario to the June 12 agitation which they undertook after the annulment of the June 12 1993 election, which eventually forced General Babangida from power. “We had a street protest, but no strategy on how to take over power”, he added. He berated the $1.5 billion military aid to the Egyptian military by the United States government. “This amount is enough to wipe out poverty in Egypt. The US government is pumping this huge amount to the military to stifle a real revolution of the people from actually taking place. This is the main reason the US could not even call what actually happened by its real name “a military coup” because of the repercussion it would have.

    Next on the chopping block is the lacklustre student unionism on campuses. Nigeria, he pointed out, used to have a vibrant student unionism in the universities, but the military, in their bid to nib any resistance to their rule in the bud, frustrated students and lecturers unionism and by so doing systematically destroyed the intelligentsia and by implication the entire society. Without vibrant unions on campuses voices from the ivory tower was muffled and has degenerated to the level where student leaders are now appendages of various government houses in the country.

    Since voices of reason are now scarce, the generality of the people choose the route of religious fundamentalism which often leads to the closing down of public highways and roads by various religious organisations in the country. Our penchant for “religiosity” is what has resulted in billions of Naira being spent to sponsor the elites to religious pilgrimages to Mecca and Jerusalem. Those who loot the treasury go to Mecca and Jerusalem to pray weekly. “This is why there is no money to fund education”. Since 1999 also unemployment has assumed a dangerous proportion with corruption taking a never to be imagined direction where billions are looted from the public treasury without recourse to decorum.

    All these, according to him, lead to drug addiction, gangsters on campuses, exam malpractice and cultism in this generation which was not prominent in earlier generations. Our corrupt system thus destroyed merit and paved the way for permanent students on campuses. To this the students concurred and started naming names of National Association of Nigerian Students (NANS) officials who fall under this category.

    But despite these gloomy postulations, Falana feels there’s hope for genuine change if the youths actually yearn for it. “If the youths want genuine change in the society, they must convince themselves that it requires a surgery and must be done through sacrifice and mobilisation. You should expose your friends who are criminals before they come into position of power,” he said.

    He challenged the youth to take advantage of their share size of over 60 million to cause a change in the history of the country by using the internet effectively to drive home the point that they want and desire genuine change. Raising a very vital point about being disconnected from the process of governance, he encourage them to “join issues with the National Assembly” by ensuring that corrupt officials do not find life easy. He reminded them that when N2.8 billion was declared missing in the 1980s, 600 students from then University of Ife surrounded the then National Assembly complex in Lagos and that action forced the Federal Government to set up a commission of inquiry to investigate the issue. Students, he pointed out, can still do the same today by compelling the National Assembly to pass laws that are favourable to educational development and stiff against corruption and outright impunity.

    The second speaker, Mrs. Ngozi Ngwoke of the National Drug Law Enforcement Agency (NDLEA), handled the technical aspect of drug addiction which she said is difficult to separate from cultism because the two are intertwined, pointing out that there is no drug free society anywhere in the world. Anyone, she noted can fall victim of substance abuse with the most vulnerable being the 11-35-year bracket. At the end of the two-day workshop, the students were challenged to be change agents in their generation.

     

  • NGF and NBA leadership

    The National Executive Committee of the Nigerian Bar Association held its last bi-monthly meeting from July 5-7, at Yenogoa, Bayelsa State. At the end of the meeting the NBA President, Okey Wali SAN was reported to have called for the proscription of the Nigeria Governors Forum (NGF) in view of the controversy which had trailed the outcome of the re-election of Governor Rotimi Amaechi as its chairman. Wali, SAN must have forgotten that his own election was serioulsly contested by his major opponent, Emeka Ngige SAN. In spite of the fact that the allegations of malpractice (including the fact that some lawyers who died several years ago voted from the grave!) were proved beyond reasonable doubt no one ever suggested that the NBA be proscribed. However, while I reject the insinuation in certain legal circles that the call for the proscription of the NGF was influenced by the fund collected from the government to host the last NBA NEC meeting, I am of the strong view that the liquidationist call should not go unchallenged.

    In his characteristic forthright manner, the Edo State governor, Comrade Adams Oshiomole exposed the NBA leadership to ridicule when he maintained that “the environment and the overall circumstance known and unknown that led the NBA president to call for the freezing of the right of Governors to associate borders on corrupt practice.” Although another governor has joined issues with Wali, SAN, I deem it pertinent to challenge his reactionary call before it is adopted by the forces of annulment in the country. More so that the call is a sad reminder of the fate that befell some progressive professional bodies and trade unions which were either corruptly taken over or decimated by the Ibrahim Babangida junta. It would be recalled that in February 1984, the candidate backed by the junta had failed woefully to win election as the president of the Nigeria Labour Congress at its delegates conference held in Benin, Edo State. The government reacted by promulgating a decree which sacked the NLC leadership and appointed a sole administrator to run its affairs.

    The next target of the junta was the NBA which had under the leadership of the Late Mr. Alao Aka-Bashorun (1987-1989) been in the fore-front of the struggle for the observance of the rule of law and the restoration of democratic governance in the country. The junta did not disguise its plot to hijack the leadership of the Bar at the 1992 Annual Bar Conference which held in Port Harcourt, Rivers State. But some of us successfully frustrated the imposition of the official candidate as the leader of the NBA. A few months later, the Legal Practitioners (Amendment) of 1993 was enacted and backdated to 1992. In the main, the decree sacked the National Executive Committee members of the NBA led by Chief Priscilla Kuye and replaced them with a caretaker committee headed by the Late Chief FRA Williams SAN to manage the affairs of Nigerian lawyers. Although the decree ousted the jurisdiction of the courts and criminalised the institution of any suit which might question “anything done or purported to be done” under it, I was prepared to challenge it. But the Ikeja branch of the NBA instructed me to file the suit on behalf of all its members. I did.

    In the suit we challenged the legal validity of the proscription decree. the Lagos High Court presided over by Obadina J (as he then was) granted an injunction against the caretaker committee. Dissatisfied with the injunction the defendants rushed to the Court of Appeal. Owing to the constitutional significance of the case, the request of the appellants’ counsel, Chief Williams SAN, for a special panel of five Justices of the Court of Appeal to hear the appeal was granted. However the appeal was dismissed. In upholding our submissions their lordships unanimously declared the amendment decree illegal and struck it down for violating the fundamental right of Nigerian lawyers to associate freely and assemble without interference. See FRA Williams & Ors V Akintunde & Ors(1995) 3 NWLR (PT 381) 101. In the same vein, the complaint filed by Olisa Agbakoba SAN at the African Commission on Human and Peoples Rights at Banjul, The Gambia on the proscription was equally determined in favour of Nigerian lawyers. Thus, in Civil Liberties Organisation (in respect of the Nigerian Bar Association) v Nigeria (2000) AHRLR 186, the African Commission found that the official interference “with the free association of the Nigerian Bar Association is inconsistent with the preamble of the African Charter in conjunction with UN Basic Principles on the independence of the Judiciary and thereby constitutes a violation of article 10 of the African Charter”. Both decisions have confirmed that some Nigerian lawyers went all out to defend the autonomy of the NBA and resisted the official imposition of leaders on it, even under a fascistic military dictatorship. It is therefore ironical that the current leadership of the NBA has, for some inexplicable reasons, colluded with the forces of retrogression to constrict the democratic space in Nigeria.

    It is particularly sad to note that the NBA which used to be the defender of the fundamental rights of the Nigerian people has thrown up leaders who are campaigning for the proscription of friendly societies and clubs. Even if Mr Wali does not like the NGF, he is duty bound, as a lawyer, to respect the right of the members to associate without external interference. I personally, opposed the acquisition of jets by a few state governors in view of the excruciating poverty in the land. But I had to condemn the decision of the aviation authorities to ground the Rivers State owned bombardier plane while a couple of other governors are allowed to ride theirs. Since there is equality before the law it is illegal to restrict the movement of Comrade Adams Oshiomhole of Edo State, for political reasons, while others are allowed to enjoy their freedom of movement, without let or hindrance.

    Regrettably, the NBA appears to be encouraging impunity on the part of certain public officers. Otherwise its leadership should have called the Rivers State Commissioner of Police, Joseph Mbu to order for banning demonstrations and rallies convened in Rivers State without police permit. More so, that the order of Mbu is totally contemptuous of the verdict of the Court of Appeal in the case of the Inspector-General of Police v All Nigeria People Party (2008) 12 WRN 65 wherein it was held that seeking police permit for public protest is violative of the right of Nigerian citizens to freedom of expression. In that appeal which I also had the privilege of handling for the respondents, the Court of Appeal agreed with me that police permit was illegal in a democratic society. It was the view of the court that: “In present day Nigeria, clearly, police permit has outlived its usefulness. Certainly in a democracy, it is the right of citizens to conduct peaceful processions, rallies or demonstrations without seeking and obtaining permission from anybody. It is a law guaranteed by the 1999 Constitution and any law that attempts to curtail such right is null and void and of no consequence.” Pursuant to the epochal verdict, the Nigeria Police Code of Conduct recently launched by the Inspector-General of Police, M. D. Abubakar, has directed all police officers to “maintain a neutral position without regard to the merits of any labour dispute, political protest, or other public demonstration while acting in an official capacity; nor make endorsement of candidates, while on duty, or in official uniform.”

    Incidentally, the honourable Justice Olufumilayo Adekeye JSC (rtd) who read the leading judgment in the case of IGP v ANPP (supra) is now a member of the newly inaugurated Police Service Commission. It is hoped that the police authorities will muster the courage to sanction the Rivers State police commissioner for violating the Police Code which has mandated all police officers to “perform all duties impartially without favour or affection or ill will and without regard to status, sex, race, religion, political belief or aspiration. All citizens will be treated equally with courtesy, consideration and dignity. Officers will never allow personal feelings, animosities or friendships to influence official conduct. …”

    In the light of the foregoing it is hoped that concerned lawyers will urgently adopt decisive measures to free the NBA from the grip of anti-democratic forces and reposition it to resume its traditional role of defending the rule of law and the expansion of the democratic space in the country.

     

  • The anti-corruption war in the Judiciary: How far? How well?

    Paper delivered by Mr Femi Falana (SAN) at the presentation of the Law Journal of the Law Students Society, Faculty of Law, University of Ilorin, Kwara State, in honour of Chief Folake Solanke (SAN)

    During the screening of the Chief Justice designate, Hon Justice Aloma Mukhtar by the Senate on July last year, some Senators took her to task on the disturbing rate of corruption in the judiciary. Without any hesitation whatsoever, she was quick to admit that the situation “is very bad and I am saddened by it. I will try as much as possible to ensure that as for the bad eggs that are there, there will be a cleansing by the NJC based on petitions” .

    It is doubtful if the Senate members were convinced that she could muster the courage to rid the Judiciary of corruption. But based on her impressive performance at the screening session coupled with her solid credentials the entirety of the senate members unanimously confirmed her appointment. Having had promises of reforms made by political leaders and judicial officers broken in the past Nigerians took Justice Muktar’s undertaking to reform the judiciary with a pinch of salt.

     

    But since she took over the leadership of the nation’s judiciary she has repositioned the National Judicial Council to take up the urgent task of restoring confidence in the judiciary. Thus, in less 10 months of her tenure the CJN has made it clear to judges and Senior Advocates of Nigeria (SAN) that it is no longer business as usual.

    Disturbed by the loss of confidence in the judiciary by Nigerians, the Chief Justice of Nigeria, Justice Aloma Mukhtar has resolved to take remedial steps to restore the image of the judiciary. The National Judicial Council under her leadership held an emergency meeting on February 21, 2013 to review the pending cases of judicial misconduct against some judges. At the end of its deliberations, the NJC recommended the compulsory retirement of two judges namely, Justice Charles Archibong of the Federal High Court and Justice Thomas Naron of the Plateau State High Court for judicial misconduct.

    According to a statement by the NJC, Justice Thomas Naron, the Chairman of the dissolved Osun State Election Petition Tribunal was found to have regularly communicated with ex-Governor Olagunsoye Oyinlola’s counsel-Otunba Kalejaiye (SAN) through telephone and SMS messages while the election petition filed by Ogbeni Rauf Aregbesola was being tried by the Tribunal.

    With respect to Justice Archibong it was established that he dismissed the 26-count charge against Mr Erastus Akingbola, former Managing Director of the defunct Intercontinental Bank without taking his plea; made caustic and reckless remarks on the competence of four Senior Advocates of Nigeria and refused to release a certified true copy of his ruling to the lawyers; convicted some PDP leaders for contempt when the contempt application was not served on them, gave judgment in a case commenced by original summons without written addresses filed by parties.

    Owing to such litany of errors the NJC concluded that Justice Archibong did not have any grasp of the law and procedure.

    Another judge, Okechukwu Okeke J. of the Federal High Court was given a stern warning three weeks to his retirement from the Bench. Mohammed Talba of the Federal Capital Territory High Court has been placed on 12-month suspension while the Chief Judge of the same court, Justice Lawal Hassan Gumi has opted to resign instead of waiting for the investigation of the allegations of misconduct leveled against him. The Legal Practitioners Privileges Committee headed by the Chief Justice has suspended a Senior Advocate of Nigeria sine die while the NJC has referred another one to the NBA for discipline on account of allegations of profession misconduct.

    To prevent judges from embarking on foreign trips at the expense of their judicial duties no judge can travel out of the country any longer without a written permission of the Chief Justice while judges cannot leave their stations without the authorization of the appropriate heads of courts. The NJC has warned judges to stop compromising themselves by issuing orders or giving judgments that cannot be defended on the basis of the available facts and the applicable law. With the sanctions imposed on erring judges a strong message has been sent to judges and lawyers that it is no longer business as usual. Even the corrupt cabal that took over the award of the rank of Senior Advocates of Nigeria has discovered that the game is up.

    The Chief Justice has asked judges who cannot deliver at least four judgments in a year to be prepared to call it quits with the judiciary as the nation cannot continue to keep indolent judges on the bench. She has directed that courts the sitting of courts should commence at 9 am instead of the usual practice whereby many judges walk in leisurely to court at noon without any justifiable reason. It is hoped that the heads of courts and the Nigerian Bar Association will monitor and drive the reform agenda of the Chief Justice in order to restore the confidence of the Nigerian people in the courts. It is gratifying to note that the National Disciplinary Committee of the Body of Benchers has been reactivated to deal with erring lawyers. Last week, five lawyers were removed from the roll of legal practitioners for having been convicted of sundry acts of professional misconduct. The NBA leadership under deserves commendation for this feat. It is however hoped that the NBA will beam its search light on senior lawyers who have been linked with serial violations of the rules of professional ethics.

    In a country where impunity has become the order of the day the forces of darkness that have profited maximally from the judicial rot are understandably not comfortable with the courage and determination of the Chief Justice to clean out the angean stable in the judiciary. They have therefore decided to resort to subtle blackmail with a view to turning back the hand of the clock. But having lived above board like Ceaser’s wife the Chief Justice should forge ahead with the purge which is going to enhance the image of the judiciary and lead to the restoration of the confidence of Nigerians in the institution. Since the principalities that are behind the destruction of the judiciary are stupendously rich and well connected they are going to continue to fight dirty. In other words, the CJN and the NJC should expect a sustained attack from the forces of retrogression as corruption has a way of fighting back.

    However, the NJC should strive to give adequate time and opportunity to judges accused of misconduct with a view to confronting the allegations made against them. The manner of appointment should be reviewed to prevent lawyers of questionable character or who lack the knowledge of law from finding their way to the bench. The reports and comments of the Nigerian Bar Association on all short listed candidates for the bench should henceforth be given serious consideration because the body is well suited to recommend those among its members that are qualified to be appointed judges. The NJC should refrain from applying illegal laws and policies capable of frustrating the elevation of competent lawyers to the higher bench.

    Happily for the legal profession and the country, concerned judges and progressive lawyers have declared their unalloyed solidarity with the CJN. A few days ago, Justice Akanbi spoke glowingly of the Chief Justice when he said “Corruption, talking frankly, is endemic. It has gone to a level that it has affected the judiciary. There was a time you would never talk anything against the judiciary. I am glad to say this is a great moment when Maryam Aloma Muktar, the Chief Justice of Nigeria, is doing quite a lot in fighting the menace. We should support her in fighting the battle to see that we get a better Nigeria. I know Muktar, she served under me. She is a courageous woman and a core professional with high integrity and commitment to uprightness and justice. She is a person who abhors corruption and is determined to rid the country of corruption. Nigerians should support her in her efforts to sanitize the judiciary and rid Nigeria of corruption.”

    However, a foremost legal practitioner and a former President of the Nigerian Bar Association, Chief Wole Olanipekun (SAN) has called for the setting up of a judicial commission of inquiry to purge the judiciary of alleged corruption. According to the learned Senior Advocate “unless and until a commission of inquiry is set up to look into all these corrupt and bribery allegations against judges and lawyers alike, where names will be named and particulars supplied, where reservations will be expressed openly, where instances will be given etc I doubt if our judiciary will ever be cleansed”. With profound respect, there is no basis whatsoever for the setting up a commission of inquiry which is going to usurp the constitutional functions of the NJC.

    In the case of Chief Gani Fawehinmi v General Ibrahim Babangida it was held by Uwais CJN (as he then was) that “though the Tribunal of Inquiry Act is an ‘exiting law’, its application is limited and has no general application” outside the Federal Capital Territory. The effect of the judgment is that President Jonathan lacks the vires to institute a commission of inquiry to probe judges in the Federal and State public service. In any case, the National Judicial Council is currently dealing with all allegations of corruption and other complaints of misconduct raised against judges while the Nigerian Bar Association has revitalised its own disciplinary machinery to bring erring lawyers to book. In the circumstance, there is no legal or moral justification to opt for the establishment of a judicial commission of inquiry to probe corrupt judges.

    It is pertinent to note that in spite of the on-going efforts to sanitize the judiciary a few judges have continued to issue frivolous and illegal ex parte orders and deliver judgments that are totally devoid of justice. Last month, a Federal High judge in Lagos prohibited the police from arresting, investigating and prosecuting a criminal suspect accused of economic sabotage. The trial judge went as far as quashing the report of the police investigation into the crime. A few days later, a judge of the Abuja judicial division of the Federal High Court issued an ex parte order restraining the EFCC from proceeding with the investigation of the same suspect over his alleged involvement in the fuel importation scam. It is hoped that the NJC will move speedily to put an end to such abuse of judicial powers by a few judges who are in the habit of conferring illegal immunity on some rich criminal suspects.

    Conclusion

    While saluting Chief Justice Aloma Muktar for the on-going cleansing in the judiciary she should ensure that effective measures are put in place to institutionalize the reforms. This is of urgent importance as she is due to retire late next year. The vested interests who have sworn to destroy and discredit the judiciary should not be made to believe that what is unfolding before our eyes is a passing phase. It is therefore pertinent to call on the Nigerian Bar Association to collaborate with the NJC to save the legal profession from perdition.

    In particular, the NJC should mobilise our judges to deliberately extend the frontiers of justice to the majority of Nigerian citizens who have no access to the temple of justice due to poverty, ignorance and fear. If our judges are not prepared to re-event the wheel like their Indian counterparts have done by making socio-economic rights justiciable through judicial activism they should be prepared to discard the reactionary doctrine of locus standi in order to allow public interest litigators to enforce the very many welfare laws that have been enacted by the Parliament but which are not breached with impunity by the government.

    Finally, members of the legal profession who fail to support the reforms and the internal cleansing in the judiciary may be exposing Nigerian judges to the revenge of litigants . Those who think that English judges have always been models of judicial integrity may wish to read David Pannic’s book, Justice, where he writes:

    “Some judges have received more than their just deserts for injudicious behavior. In the thirteen century, Andrew Horn alleged that in one year (four centuries earlier) King Alfred caused forty-four judges to be hanged as homicides for their false judgments. In 1381 a mob pursued the Lord Chancellor, Simon de Sudbury, and cut of f his hand. One year later, Lord Chief Justice Cavendish was killed after being apprehended by a mob and subjected to a mock trial in which he was sentenced to death. In 1688 the infamous judge Jeffreys, by then the Lord Chancellor, went into hiding when James II fled the country. Jeffreys was captures in Wapping when he was recognized in a tavern by a man who had been a dissatisfied litigant in his court. (The man had won his case but Jeffreys had been rude to him and kept him waiting). Jeffreys was put in the Tower of London, where he dies in 1689.”

  • Falana, others petitions ‘spur fuel subsidy probe’

    Falana, others petitions ‘spur fuel subsidy probe’

    A Lagos High Court, Ikeja heard on Wednesday that the on-going investigation and subsequent prosecution of some oil marketers was the fall out of the various petitions submitted by Femi Falana(SAN), some members of the Civil society groups and the Minister of Petroleum Resources.

    A prosecution witness, Hammed Lawal disclosed this in his testimony at the ongoing trial of two oil marketers and their company before Justice Lateefat Okunnu.

    The Economic and Financial Crimes Commission had arraigned Samuel Bamidele, Abiodun Kayode Bankole and their company, A.S.B. Investment Company Limited for subsidy fraud.

    The EFCC’s operative, who was among those detailed to investigate the fuel subsidy infractions said that because the petitions were not specific, the commission decided to investigate the entire subsidy regime.

    He said it also became imperative for the commission to probe all transactions relating to the fuel subsidy regime because there was also a lot of public outcry against the misdeed.

    Lawal told the court that their investigations showed that the defendants fraudulently obtained payments from the petroleum support fund as subsidy for the importation of petroleum motor spirit (petrol) to the tune of N1, 341,471,735.67.

    He explained that analysis on the claims by the oil marketers showed that about 13,415 metric tonnes of fuel discharged by the marketers at Fatgbems depot did not emanate from Sweden as quoted in their “bill of lading.”

     

  • Falana greets Amaechi

    Lagos based lawyer, Femi Falana (SAN) has said Governor Rotimi Amaechi of Rivers State “deserves commendation for his re-election as the Chairman of the Governors’ Forum.” He said his “victory is a clear affirmation of the confidence of the majority of the governors in the leadership of their Chairman. It is hoped that Mr Amaechi will accept the renewed call to service as a challenge to lead the forum to address the increasing wave of poverty, unemployment, insecurity of life and property in the land.”

    Falana called on the governors to close ranks and work with President Goodluck Jonathan to restore law and order in all parts of the country. He however, expressed regrets that “some of the governors who contested and voted in the election have decided to embarrass themselves by challenging the integrity of the exercise.”

    He dismissed as “childish” the excuse by some of the governors that Amaschi did not step down as chairman before the election asking, “They claim that the election was vitiated because Governor Amaechi did not step down before the race. Did any of the governors who recontested elections and won in their states step down before the elections were conducted by the Independent National Electoral Commission?”

    He is of the view that the election was in compliance with the Electoral Act.

  • Falana visits Jonathan at Villa

    Nigerian lawyer and human rights activist, Mr. Femi Falana  on Friday visited President Goodluck Jonathan at the Presidential Villa, Abuja.

    Even though he did not give details of his visit, he told State House correspondents that it was a private visit.

    According to him, he is a stakeholder in the Nigeria project and has the right to visit the Villa.

    The brief encounter with journalists went thus:

    Why are you here?

    “It is a private visit, it is a private visit.”

    You are a lawyer to Leadership newspaper, is there a negotiation going on?

    “It has nothing to do with that at all, on a very serious note.”

    Has it got anything to do with 2015?

    “No, No, No, it was for the affairs of our country, am a stakeholder, you know that.”

    Falana had recently declared that President Jonathan’s attack on the media was worse than experiences during the military era.

    With the arrest of journalists of Leadership newspapers, he had maintained that the nation was witnessing the progressive proscription of free speech in spite of the much touted respect for the fundamental rights of Nigerian citizens by the Goodluck Jonathan administration.

  • The Funmi Olayinka I knew

    The Funmi Olayinka I knew

    I received with shock the news of the tragic death of our Deputy Governor, Mrs Adunni Funmilayo Olayinka while I was outside the country last week. But I took solace in the glowing  tribute paid to her in your  special broadcast  which I read on the internet. It must have been extremely traumatic for you during your visit to the family at Ado Ekiti  when Adunni’s 81-year old mother asked you for the whereabout of her daughter, your deputy!

    As a member of the legal team constituted by your good self  in 2007 to challenge the stolen mandate of the Ekiti people I met Mrs Adunni Funmilayo Olayinka at close quarters, for the first time, in the course of our  preparation of  the gubernatorial election petition. Although both of you were not considered learned in any area of bourgeois jurisprudence, your decisive interventions added value to the case and contributed immeasurably to the success recorded at the Court of Appeal after a protracted legal battle.

    Upon the inauguration of your Administration on October 15, 2010, the Deputy Governor, Mrs Olayinka charged me to join hands with you in rescuing Ekiti State from the reactionary forces that were determined to impede the progress of our people. In spite of our ideological differences, Mrs Olayinka took my constant harassment of your Administration with maturity and in good faith. As far as she was concerned, the Administration needed to be kept focused and committed in the prosecution of its 8-point agenda for the transformation of Ekiti State from poverty to prosperity.

    Apart from such political affinity, we also became close through the intimate friendship of our children. Hence, in spite of her critical health condition, Mrs Olayinka and her darling husband joined you and your wife  in gracing the occasion of the wedding of my daughter in Lagos on December 8, 2012. In her usual vivacious character, she was full of charm  as she sang and danced at the Church service to the delight of my family. Little did we know that that was going to be one of her last public appearances!

    In a society where women are completely relegated to the background by culture, law  and religion,  Mrs Olayinka emerged a respected political leader through dint of hard work, sheer courage, unrelenting determination and  unalloyed loyalty to principles. Thus, in the space of three years, she and your wife (Comrade Bisi) have encouraged and influenced our young women to discard prejudices and compete with their male counterparts on the basis of equality of opportunities. Mrs Olayinka was polite but firm, she was gentle but tough, she was friendly but strict. At all times she comported herself with dignity, grace and sartorial elegance. It is indisputable that Mrs Olayinka was an Omoluabi per excellence.

    The greatest tribute that can be paid to Mrs Adunni Funmilayo Olayinka by the Ekiti people is a collective resolve to promote knowledge to a stage where humanity will be in a position to prevent cancer and other dangerous diseases from destroying precious lives in our country.

    Mr. Governor, kindly convey the heartfelt sympathy of my family to the Government and the good people of Ekiti State over the untimely death of Omo Ayiye, Mrs Adunni Funmilayo Olayinka.

  • Nigeria, failing nation: where are the lawyers?

    Nigeria, failing nation: where are the lawyers?

    Text of a paper presented by Femi Falana (SAN) at the Eighth Chief Babatunde Olusola Benson annual lecture organised by the NBA Ikorodu Branch on February 6, 2013.

    The role of lawyers in the society

    In building a modern nation the rule of law is a sine qua non. In operating a society under the rule of law the role of lawyers is not only vital but also sacrosanct. Writing about the role of lawyers in nation building, Alexis De Tocquiville, a French political thinker state in his book, Democracy in America, that, “When one visits Americans and when one studies their laws, one sees that the authority they have given to lawyers and the influence that they have allowed them to have in the government form the most powerful barrier today against the lapses of democracy. This effect seems to have a general cause that is useful to inquire about, for it can be reproduced elsewhere.’’

    The observation of Tocquiville cannot be faulted as the principal author of the Declaration of Independence, Thomas Jefferson and the main force behind unified response to the British occupation of Boston, and hence the Revolutionary War, John Adams were lawyers. Several other lawyers such as Alexander Hamilton, John Marshall, William Paterson and Abraham Lincorn played a vital role in the political history of the United States. The former American President, Bill Clinton and President Barrack Obama have continued the tradition of public service by lawyers in the United States.

    Other lawyers who had changed the course of history include Mahatma Ghandi who was in the forefront of the anti-apartheid struggle in South Africa and the anti-colonial struggle in India, Oliver Tambo and Nelson Mandela who effectively mobilized Africans to fight against minority rule in South Africa. Before then Vladimir Lenin had led the Bolshevik revolution in Russia in 1917 while Fidel Castro championed the Cuban Revolution in 1959. The first Nigerian lawyer, Christopher Sapara Williams who was called to the English Bar in 1879 challenged obnoxious colonial laws in court and organised street protests against anti-people’s policies of the British colonial regime. This was in line with his declaration that “ a legal practitioner lived for the direction of his country.” It was on account of his patriotic defence of the people of Nigeria and the Gold Coast (Ghana) that he was denied the rank of King’s Counsel (K.C) when he applied in 1913.

    Apart from his involvement in the independence struggle Obafemi Awolowo headed the government of western Nigeria from 1951 to 1959. Other lawyers like F.R.A Williams, Samuel Akintola and Bode Thomas contributed to the success of that government. Alao Aka-Bashorun, Gani Fawehinmi (SAN) and Olisa Agbakoba (SAN) and a few other lawyers were in the forefront of the titanic battle against military dictatorship in Nigeria. Although the list is by no means exhaustive I have referred to the afore-mentioned lawyers to demonstrate that the legal profession has contributed positively to the development of many societies. But in recent time, Nigerian lawyers have joined the reactionary forces that are pulling the country down. Through unethical practice and disregard for laid down rules members of the legal profession are assisting in pushing the country to the precipice of self annihilation which may soon lead to anarchy and chaos. By engaging in sharp practices some highly placed lawyers have colluded with their allies in and outside the courts to subvert the judicial system.

     

    The subversion of the rule of law by lawyers.

    What we see today is best described as a sham in our courts where corrupt people walk in and out with ease. With impunity, lawyers abuse court processes to favour their clients without corresponding punishment for the offenders. The laws have been manipulated in favour of the rich and powerful people who commit criminal offences but get light sentences while the common people that engage in petty stealing end up spending long years behind bars. Many do not even get prosecuted as their lawyers have perfected many ways of evading justice through frivolous injunctions, some even go as far as getting “perpetual injunction” to prevent their clients from facing the law. These lawyers who have become some sort of “couriers” for ill gotten wealth have done all the unthinkable in law to frustrate the law from taking its course. Interlocutory application is one of the tools used by lawyers to delay justice or even prevent it because they are applied in most cases especially when they know the case do not favour their clients.

    Lawyers file such motions for all sorts of vexatious issues. Knowing fully well that such applications could be dismissed and because there is a right of appeal, lawyers usually apply such methods to stall court processes and that is a crude abuse of court process. Unfortunately they have in some judges, conniving allies who are ready to accede to their prayers especially when the price is “right”. Corruption in the judiciary has assumed a dangerous dimension to the extent that lawyers seek injunction to prevent law enforcement agents from arresting or prosecuting those that were once referred to as “pen robbers” by the late Fela Anikulapo-Kuti.

    Even when the cases of “pen robbers” are brought to court, lawyers in collaboration with some judges frustrate trial by engaging in dilatory tactics. In most instances, the landmines put on the way of the court make it so difficult to dispense with justice. Litigation and re-litigation are often employed by lawyers to confuse judges, stall proceedings and generally make a fool of the court process. The people that make that possible are the lawyers who are supposed to protect the law by defending what is just, but have deliberately become obstacles to the rule of law. The situation has even been aggravated by the attitude of the bench that has ignored its role in monitoring the activities of lawyers and sanctioning those among them who subvert the judicial system.

    The systemic decline and the rot in the judiciary have become so endemic that it has become almost impossible to get justice in the country. Judges as well as lawyers oftentimes exploit the complexity in the Nigerian neo-colonial legal system to abuse the court process and thereby inhibiting justice. The situation has got to a level of anarchy and if nothing is done drastically to halt this decline, the country may collapse. The abuse of court process by lawyers who file frivolous lawsuits and motions has made a mockery of the whole judicial system. They are able to do this because of lack of effective disciplinary measures to deal with erring lawyers who stall court processes with frivolous motions. The mass of the people are at the mercy of these lawyers, who are at best legal mercenaries who are obviously paid to do dirty jobs and abuse the court processes. The matter is made worse by some judges, who are too willing to accommodate these motions to the detriment of proper judicial process. Even if a prosecuting counsel is against such distractions, a conniving judge would be more than willing to frustrate his efforts.

    The situation has become so pathetic that criminal cases are being outsourced to the extent that those that have been given a clean bill of health in our law courts are found guilty in other jurisdictions.