The Nation Newspaper

Tag: lawful

  • Poll shift lawful, but damages INEC’s credibility, say lawyers

    Lawyers yesterday acknowledged the power of the Independent National Electoral Commission (INEC) to reschedule elections but noted that the commission did itself no credit by the way it went about the postponement of the Presidential and National Assembly polls.

    Chief Niyi Akintola (SAN) observed that the Electoral Act permits the commission to make polls adjustments in the national interest.

    Citing Section 26(1) of the Electoral 2010 (As Amended),Akintola said: “INEC has powers to postpone polls. But the sad thing about this postponement is that it waited till very late at night, an unholy hour, disrupting the economy, the political lifeline of the country, the social traffic of the country.

    “To make matters worse, INEC National Commissioner in charge of Information and Voter Education, Mr. Festus Okoye, denied around midnight that there was any postponement. People have travelled far and wide, Mr. President travelled to his state, the vice president had travelled, practically everyone that is somebody had travelled back to their constituencies.

    “See what it has caused the country? Yet there was no apology from INEC. It’s a big disappointment and has cast doubt on the credibility of the election.”

    He urged INEC to learn from its mistakes and up its game.

    Activist-lawyer Ebun-Olu Adegboruwa noted that notwithstanding INEC’s powers, the postponement was “totally unacceptable.”

    He invited the National Assembly to audit and probe INEC through a Commission of Inquiry.

    Adegboruwa said: “The postponement has unwittingly eroded the credibility of the elections and the capacity of INEC, in spite of the huge resources committed to it and the length of time available for planning and logistics.”

    He argued that “INEC should not have waited till the dying minutes before announcing the postponement, since it was well aware of all its handicaps long before now.”

    The lawyer appealed to “all Nigerians to be patient and give room for a proper election at the times rescheduled for it by INEC. No sacrifice should be too great for us as a people, in order to get to the destination of our dreams.”

  • APC leadership: ‘Buhari’s position lawful’

    Former Suleja Branch Chairman of the Nigerian Bar Association (NBA), Mr Tanko Zakari, has backed President Muhammadu Buhari’s call for a reversal of tenure extension for All Progressives Congress (APC)  national officers.

    He said the call was in line with the party’s constitution and the 1999 Constitution and must be complied with.

    Zakari, APC National Deputy Treasurer, told The Nation: “To put the records straight, there was no tenure elongation for Exco members of the party in the first place. What happened at the previous NEC  meeting was that a motion was moved for the present Exco of the party led by Chief John Odigie Oyegun to continue to act in office for a period of one year at the expiration of its current term in June.

    “Some members are of the view that the successes recorded under his leadership should be sustained by allowing the Exco to act as a steering/caretaker committee for a further period of one year pending when we are able to reconcile some internal rumbles within the party especially in view of the Asiwaju  Bola Ahmed Tinubu led reconciliation committee that was set up by Mr. President.

    “This decision can only be ratified  at the next party congresses and convention to which a time table for that purpose had already been circulated.

    “The opinion expressed by Mr.  President was only to the effect of reconsidering that position if only it will conflict with our party and the Constitution of our dear country. He pointed out that his findings revealed that it is against the provisions of the constitution.

    “My view here with all respect to the views held by most senior lawyers is that the decision is not in any way in conflict with our constitution.

    “The idea is no for tenure extension as nobody has the powers to extend anybody’s tenure. It is to allow the present officers act as caretaker or steering committee depending on the nomenclature used as the case may be.

    “I can understand the position of Mr. President, that position was actually in good faith and with a view to keeping to his promise of respecting the laws and regulations of both the party and the Nigerian  constitutional provisions.

    “Those that wanted the extension is also in good faith and in their quest to ensure that the party did not do anything that will divide us the more as against uniting us.

    “To put the issue at rest, the Exco has  set up a committee made up of highly respected legal personalities to look into the matter and advise  the party accordingly.”

  • Court okays seizure of Fayose’s assets

    Court okays seizure of Fayose’s assets

    Justice Nnamdi Dimgba of the Federal High Court, Abuja held yesterday that the temporary order of attachment granted in relation to some identified assets of Ekiti State Governor Ayo Fayose did not violate Section 308 of the constitution.

    The judge said the intention of the immunity clause granted to some public office holders is not to shield them from investigation by security agencies for the purpose of obtaining evidence for future uses.

    Justice Dimgba gave the ruling yesterday on an application by Fayose, whose lawyer Mike Ozekhome (SAN), had sought to vacate the order of interim attachment granted by the court on July 20 to the Economic and Financial Crimes Commission (EFCC).

    The order was in relation to the EFCC’s investigation of some activities of the governor and some of his associates.

    The affected property to which the order relate, include four sets of four-bedroom apartments at Chalets 3, 4, 6 and 9, Plot 100, Tiaminu Savage, Victoria Island, Lagos.

    Also affected are at 44 Osun Crescent, Maitama, Abuja and Plot 1504 Yedzeram Street, Maitama Abuja.

    The EFCC had, while seeking the order, stated in an affidavit accompanying its motion ex-parte that the properties were acquired through proceeds of fraud, which Fayose allegedly got through kickbacks from contractors and other alleged fraud.

    It stated that the funds used for the purchase of the properties were said to be drawn from the sum of N1, 219,490,000, which was said to be part of the N4, 745,000,000, allegedly stolen from the treasury of the Federal Government through the Office of the National Security Adviser.

    In his application filed on notice on July 21, Ozekhome hinged his request for the court to set aside the order of interim forfeiture on 10 grounds.

    He argued that the court lacked jurisdiction to entertain and/or proceed to grant the interim order.

    Ozekhome contended that in view of the immunity enjoyed by Fayose as sitting governor by virtue of the provision of Section 308 of the Constitution, he (Fayose) “cannot be proceeded against in a court of law”.

    Justice Dimgba upheld the argument of EFCC lawyer Andrew Akoja, to the effect that the July 20 order was validly made.

    “It is my considered opinion that the order of court, made on July 20, 2016 in respect of some property of the applicant, and within the limited scope and duration within which it was obtained, was duly procured and does not offend the provision of the Constitution referred to,” the judge said.

    Justice Dimgba said although Section 308 of the Constitution serves to protect governors of states from the distraction of litigation and legal proceedings, to enable them to attend to official responsibilities, it should not be interpreted in such a way as to defeat the fight against corruption, to mean that the EFCC or other investigating agencies cannot take a peep into the assets or personal accounts of a serving governor in the execution of a strictly worded and mutually supervised interim attachment orders for the purposes of obtaining evidence for use in future when the immunity has lapsed.

    “In the light of the above, I hold that the applicant is not entitle to the reliefs sought and are hereby refused.

    “However, in the interest of justice and not to appear to make a mockery or nonsense of the immunity clause, I hold that the interim attachment order of July 20, 2016, granted by this court in favour of the respondent (EFCC) shall last for 45 days as the court had already ordered, within which the respondents must conclude their investigation in respect of those property, at the end of which every encumbrance on the property arising from the order of court, must abate.

    “I order that in the event that the respondent may wish to renew the interim attachment order as they are entitled to, they must serve the motion to that effect on the applicant not later than five days to the expiration of that order, without which the order shall stand abated,” Justice Dimgba said.

  • Planned extradition of senator-elect lawful, says Falana

    Planned extradition of senator-elect lawful, says Falana

    Lagos lawyer Femi Falana (SAN) has explained that the planned extradition of senator-elect of the Peoples Democratic Party (PDP) Chief Buruji Kashamu to the United States (U.S.) is in accordant with the rule of law and in line with the provisions of the Extradition Act.

    In a statement in Lagos yesterday, titled: “Legal Implications of Kashamu’s extradition”, Falana advised the senator-elect to surrender himself for trial in the U.S. instead of embarking on a prolonged legal battle in Nigeria.

    The learned silk, who contended that the fundamental right of Kashamu to personal liberty has not been violated in any way so far, added: “But if he insists on his innocence, let the law take its course through the extradition proceedings”.

    The statement reads in part: “The Extradition Treaty between Nigeria and the U.S. was signed on June 24, 1935 while it entered into force on June 24, 1935. The treaty was signed with the U.S. by the British colonial regime, which then exercised dominion over the territory of Nigeria.

    “When Nigeria obtained political independence from the Britannic Majesty in 1960, the treaty was, like several others, adopted by the Federal Government. By virtue of Article 3 of the treaty, extradition shall be reciprocally granted for crimes or offences such as  murder, manslaughter, administering drugs or using instruments with intent to procure the miscarriage of women, rape, threats, by letter or otherwise, with intent to extort money or other things of value, larceny or embezzlement,  fraud or  fraudulent conversion, obtaining money, valuable security, or goods, by false pretences, crimes or offences or attempted crimes or offences in connection with the traffic in dangerous drugs.

    “Under the treaty, extradition shall not take place if the person claimed he has already been tried and discharged or punished, or is still under trial in the territories of the High Contracting Party applied to, for the crime or offence for which his extradition is demanded.

    “If the person claimed should be under examination or under punishment in the territories of the High Contracting Party applied to for any other crime or offence, his extradition shall be deferred until the conclusion of the trial and the full execution of any punishment awarded to him. Even though the treaty is silent on civil proceedings challenging the legal validity of the extradition of any person the exercise may be stayed or suspended if there is a court order to that effect.

    “By virtue of  the Extradition Act Cap E25, Laws of the Federation of Nigeria, 2004, the Attorney-General or a court shall not surrender a  fugitive criminal, if satisfied that the offence in respect of which his surrender is sought is an offence of a political character or that the request for  surrender, although purporting to be made in respect of an extradition crime, was in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions or was otherwise not made in good faith or in the interests of justice; or that, if surrendered, he is likely to be prejudiced at his trial, or to be punished, detained or restricted in his personal liberty, by reason of his race, religion, nationality or political opinions,” he noted.

    Falana explained that in the case of Kashamu, the order of the Federal High Court that he should not be extradited has been set aside by the Court of Appeal.

    “Although the appeal filed against the decision is pending at the Supreme Court, there is no order of execution or interlocutory injunction restraining the Federal Government from extraditing Chief Kashamu to the U.S. to stand trial for drug trafficking. Hence, the PDP chieftain and senator-elect has initiated a fresh suit at the Federal High Court to thwart any move to extradite him to the United States!

    “As the Attorney-General of the Federation, Mr. Mohammed Adoke, SAN has not been legally prohibited on the matter he is reported to have concluded arrangements to commence extradition proceedings on the basis of a request made by the United States pursuant to the Extradition Treaty.”

    He noted that before Kashamu parted ways with President Olusegun Obasanjo in the PDP and before the appointment of Mrs. Roli George as the director-general of the National Drug Law Enforcement Agency, the senator-elect had been on the wanted list of the United States for drug related offences.

    “Therefore, the allegation that Chief Obasanjo and Chief Olabode George are behind the ongoing moves to extradite the senator-elect is illogical, spurious and diversionary,” the Lagos lawyer said.

    Falana advised that instead of politicising the planned extradition proceedings, Kashamu should be prepared for the legal battle ahead, adding: “He is lucky that he is detained in his own house. But for his status as a member of the ruling class, Chief Kashamu would have been bundled to the NDLEA detention facility in Lagos, where he would have been denied access to his phone.”

    He added that the decent treatment being accorded the PDP chieftain was part of the intangible dividends of democracy.

    Only the rich are detained in their homes as the concept of “house arrest” is unknown to our criminal justice system, Falana said.

    He noted that under the military rule, the embattled PDP leader would have been arrested, handcuffed and handed to American security officials.

    According to the rights activist, “He would have been further manacled and flown to the United States for trial. At the material time, extradition proceedings were not conducted in any court.”