Stakeholders have called for the effective implementation of the new Administration of Criminal Justice Act 2015 (ACJA) and the Violence Against Persons Prohibition Act 2015 (VAPPA). ERIC IKHILAE reports.
Stakeholders in the criminal justice sector have observed that the newly enacted Administration of Criminal Justice Act 2015 (ACJA) and the Violence Against Persons Prohibition Act 2015 (VAPPA) will not be effective without strengthening the operators’ capacity.
Speakers, including the Chief Judge of the High Court of the Federal Capital Territory (FCT), Justice Isahq Bello, the Inspector General of Police (IGP), Solomon Arase, the Director General of the Nigerian Institute of Advance Legal Studies (NIALS), Professor Adedeji Adekunle, the Solicitor General of the Federation (SGF), Ahmed Yola and the United Nations Office on Drug and Crimes (UNODC) Representative, Koli Kouame argued that the effective implementation of both laws were capable of eliminating the delay and frustration currently experienced in criminal trial, assist in ensuring prompt disposal of cases and by extension enhance the justice administration process.
They spoke in Abuja at a workshop for senior police personnel on the application of ACJA and the Violence Against Persons Act (VAPA) 2015 jointly organised by United Nations Office on Drugs and Crime (UNODC) and NIALS under the framework of the European Union funded project to support justice sector in Nigeria. The workshop held between August 3 and 4.
Justice Bello noted the need to establish a monitoring committee that would oversee the implementation of the ACJA and VAPPA. He said the passage of the Acts “stands out as a resounding leap forward for the reform of Nigeria’s criminal justice system, as it would foster reform and facilitate newer, better ways of processing criminal trials.”
He observed that despite efforts by personnel involved in investigation and prosecution, the obsolete legislations, whether substantive or procedural are responsible for the various problems associated with the Criminal Justice System that has increasingly became questionable.
Justice Bello said the ACJA, which will become operational in the FCT at the resumption of the courts from its current vacation, is designed to eliminate the current challenges associated with criminal trial in the nation’s capital.
He said a new system that will restore the integrity of the Criminal Justice System is being put in place with the gradual introduction of the ACJA, part of which informed the workshop aimed at preparing the policemen for the task ahead.
Justice Bello, who was optimistic about the success of the new laws, particularly the ACJA, said by the time the High Court of the FCT resumes from its current vacationin mid-September, it will prohibit the conduct of prosecution by non-layer police prosecutors.
“To do otherwise will be illegal, because the ACJA provides that prosecutions are to be handled by law officers, unless you are a policeman, trained as a lawyer, you will not be allowed to prosecute cases in FCT courts either at the Magistrate or High Court level.
“Those lay policemen are not going to be out of job because, by their experience as prosecutors, they could be best deployed as Investigating Police Officers (IPOs). This is because they know off hand, virtually the ingredients of most of the offences they prosecute. When you deploy them for the purposes of investigation, I can assure you they will perform better,” he said.
Justice Bello, while giving hints on how investigators could aid the effectiveness of the criminal trial process, advised IPOs t always be reluctant in writing statements for suspects, who mostly deny such statements at trial, thereby delaying proceedings.
Arase, said the passage of the new laws places enormous responsibility on the Police and that the training program would help officers to understand changes that have occurred in the Criminal Procedure Act and the Criminal Procedure Code and to act appropriately in carrying out their duties.
He thanked the European Union and UNODC for supporting this and other training programs aimed at developing the capacity of officers of the Nigeria Police. He described UNODC as “a friend indeed that has been involved in all-round training and development of the personnel of the Nigeria Police Force.”
The ACJA and VAPPA are very important legal instruments that, if properly implemented, have the potential to “advance professionalism and efficiency in the trial of criminal cases, reduce congestion in Nigerian prisons as a result of speedy dispensation of justice, and enhance respect for human rights,” said Mr. Arase.
Prof Adekunle stressed the relevance of both laws to the effectiveness of the nation’s criminal justice system. He stated that both laws “are necessary to create a saner society.” He said there is need for the police to be abreast of the laws to enable them effectively carryout their responsibilities.
Yola said both laws are meant not only to reposition the Criminal Justice Sector, but intended to eliminate violence in public and private lives, as well as provide remedies for victims of crimes.
Kouame, who was represented at the workshop by the Acting Coordinator of the “Support to the Justice Sector in Nigeria” project at UNODC, Polleak Ok Serei, said, “setting up the structures and capacity needed for effective implementation of the two laws will contribute to the achievement of the Government’s vision on justice reforms.”
“UNODC realised the importance of these laws to effectively reform the Nigerian justice sector and therefore supported some advocacy activities to ensure that the laws were passed within the lifetime of the last legislative circle,” said Mr. Kouame. “UNODC will continue to support initiatives of the Nigerian Government that fall within its mandate,” he added.
Last month, Nigeria missed the digital switch-over deadline set by the International Telecommunications Union (ITU). Chairman, StarTimes, Mr. Xinxing Pang, says for the country to achieve analogue switch-out, government must clamp down on illegal operators in the digital pay TV sector. He says relevant laws will also need to be enacted while adequate funding must be provided. Pang, who was in the country as part of activities to mark the fifth anniversary of the firm’s operations in Nigeria, spoke with reporters in Abuja. Blessing Olaifa and Jill Okeke, were there.
Nigeria is said to be a difficult terrain to do business. Do you subscribe to this?
In order to operate in some areas, we need to be granted licenses to commence operations and sometimes the approval from the National Broadcasting Commission [NBC] actually takes longer time. This is one major reason our DTT deployment appears to be travelling on the slow lane. However, this year, we have been able to set up 16 transmitting sites so that we can reach wider areas and the current coverage will certainly improve. For DTT to work, there must be presence of transmitter in that area and NBC needs to grant us frequency per location and sometimes these takes up to six months. We feel it is too slow as we feel that if we apply for licenses because of the digitisation, we should be able to benefit from it and when it takes six months, the whole year is already gone.
We need the frequency to be able to operate in those areas. DTT is different from satellite broadcasting where you can operate from one location and reach everywhere. With DTT, for you to reach everybody, you must be in multiple locations.
Startimes has clocked five years in business in Nigeria, how would you describe the journey so far?
Generally, in the last five years, the company has been growing in leaps and bounds as you can see. Today, we are one of the largest in the pay digital TV market in the country. Currently our DTT platform covers more than 40 cities in the country and last year we launched our DTH which covers the entire country. Meanwhile we have started introducing more channels even with local content. We have also been training and retraining our workers for better efficiency with richer content and the quality of these contents and the quality of our programme is increasing gradually. Our subscriber base is now up to 2.6 million in the country and that has been achieved within the past five years. While we are growing and developing ourselves, we are also contributing to the Nigerian society. Today we have created direct job of about 1000 and indirect jobs of over 10,000 for Nigerians. And since we started business in Nigeria five years ago, we have also contributed almost N4 billion as tax revenue to the coffers of the government. All these are testimonies of StarTimes’ achievements within our years of operation in the country. Our services are being enjoyed a lot more by users and for the three consecutive years, we have been awarded the most popular operator in the country.
Geographically, Nigeria is wide. What is the level of reach as a company in the country?
Right now, we are in 46 locations; we however cover more than 46 cities. Take for example, in Ilorin, the capital of Kwara State, we get as far as to Offa and Omuaran while in Oshogbo, Osun State capital, our coverage gets to as far as Ife and Ilesha. And in these fringe cities, we intend to improve our coverage. We are in 46 cities but more than 80 cities are benefitting from our services. Actually, we have covered 80 per cent in all the states while our ambition is to be in all the Senatorial zones of the country. It is possible that by the end of this year, we will be in three cities in each of the 36 states. Only about two states are outside our coverage and these are Yobe and Bornu states because of security concerns. And we shall soon be in the state as soon the security situation improves.
You just clocked five in Nigeria, in another five years, what are your business plans for the company?
We have other plans such as improving our DTT networks in order to keep optimising the coverage of the network but since the country is quite big, we have to use the DTH platform as a very good complement to the DTT coverage. The improvement of our network is to promote the popularities of the local content and its development. In order to enable families enjoy digital TV services, we have provided affordable set-top box and also a digital TV set so that every family can afford this and enjoy our services. We are also introducing new programmes which have been provided in our latest bouquets. These bouquets are also affordable for the low income earners.
You are operating in a competitive environment, yet the price you offer subscribers keep going down, what is the secret?
We have lowered our cost so that we can stay in the competition. It is unlike the satellite operators where the cost remains the same no matter their expansion. The same goes for the content fees which is still the same no matter how many people are watching the TV. Here, we need to increase our subscriber base and growth so that we can make profit. The second part is that StarTimes is a high technology enterprise and so therefore, we are involved in research and development as leader in the technology through innovation in designing and producing recast. We hope to use cutting edge technology to lower the cost of just the set-top-boxes. We also have tried to improve our efficiency. We use economies of scale because we are in charge of the technology and we do produce for other people at marginal profit.
What really do you think is the problem with the inability of the country to meet the digital migration deadline set by ITU?
Digital migration in the TV industry is not just a simple process as some of you might think. It is like a huge chain that needs adjustment and involves quite a lot in the industry and for different market and entities. This means that all the stakeholders in the process must participate in making it happen because of their different demands. And for StarTimes, we are just a company; what we can do at the moment is the promotion of the digital migration which we have been doing. We cannot make any decision or fully participate in the decision making process. However, there are strange happenings in the digital TV market in the country as some companies are presently operating illegally.
Secondly, digitalisation is a very complicated process. It consists of several parts such as the shooting, casting, signals from local and states TV stations as well as the private TV and some international channels. We have to aggregate all the signals into one platform. On the same platform, all the channels can be carried in their digital form. Remember that previously, we have been under the analogue system which is just one analogue channel unlike in digital TV where one channel can carry more than 20 channels. At a point, we would advise the government to create some legislation to stop the importation of analogue TV set into the country. It is only when this is done that the digitalisation of the industry can be realised. Also the Nigerian consumers need to be educated on the benefits of digital migration. Also for digitalisation TV to work in this country, government must subsidise the decoder set as it is done in other countries. Digital TV carries rich content, wide coverage and therefore a good marketing strategy must be put in place. Also a professional team which knows the technology, management and operation must be cinstituted. These conditions are really indispensable for the success of digital TV.
What is your assessment of the market having been around for thses years?
On operations in Nigeria, we started business in Africa in 2002 and in Nigeria since 2009. We have not stopped promoting the digital migration in the Nigerian market and for StarTimes we have already prepared ourselves for the digital migration. The only issue now is that we cannot decide for the government when they should complete the migration. We wish that the migration can start as soon as possible because we all shall benefit immensely from the migration.
The issue of Corporate Social Responsibility (CSR) is important as companies are expected to give back to their host communities. What are your firm’s footprints in this area?
As an enterprise in Nigeria, we have been involved in doing genuine business in compliance with the laws of the land like paying our taxes regularly. Secondly, we have tried to provide high quality product and services to our customers and thirdly we have been providing support to vulnerable communities which we often don’t want to mention in the media.
Before 2010, the price of the pay TV services was on the higher side with subscription also very high and unaffordable and with the entrance of StarTimes into the market, a lot of Nigerians can now afford digital TV services. This was made possible with StarTimes which forced our competitors to lower their prices. We realised also that this is a major contribution to the society. We feel honoured to have several awards in the few years of our operation. We are the only digital TV station operating in states with less than $1 gross domestic product (GDP). We are ready to get to the poor even though business may not be doing well in those areas. We are also doing a lot in the areas of healthcare and children. We did a lot to create awareness during the Ebola scourge.
‘Digital migration in the TV industry is not just a simple process as some of you might think. It is like a huge chain that needs adjustment and involves quite a lot in the industry and for different market and entities. This means that all the stakeholders in the process must participate in the process because of their different demands. And for StarTimes, we are just a company; what we can do at the moment is the promotion of the digital migration which we have been doing. We cannot make any decision or fully participate in the decision making process’
Sport is an area where pay TV stations appear to be having interest. What concrete impacts have you made?
We believe that the German Bundesliga is an exciting football league in European football right now and we have acquired the media right for the next five seasons. With this, we don’t intend to increase the price of our bouquets as we shall be giving the right to air it free to the Nigeria Television Authority (NTA) so that Nigerians can enjoy it. By next week, we shall sign another agreement with another football league in the top five football leagues and with this our sporting content shall hit roof top. We also have the European Cup qualifying series and the qualifiers for the World Cup in Europe and so, altogether there will be more than 500 football matches till 2019. We have concluded the deal with the International Champions Cup for the next five years for the South of the Sahara area. Our platform includes the World Cup Under-20 in the next World Cup in 2017. Our platform is user-friendly to all our customers as our newly launched set top box can receive signal from UHF to DTT.
Like his elder brother, former Edo State Governor Lucky Igbinedion in 2008, Michael easily got off the hook after being convicted for a N25 billion fraud on April 30. He was fined N3million in lieu of six years imprisonment. Michael easily paid the fine just as his brother did seven years ago. Nigerians were outraged by the verdict, with many accusing the judge of encouraging graft. But did Justice Abubakar Liman err? No, say lawyers, who argue that he was only interpreting the law. PRECIOUS IGBONWELUNDU reports
•Judge incurs public ire over ‘fame’ verdict
•SANs, others: blame the law not the judge
Background
History has a way of repeating itself. Last April 30, Michael, younger brother of former Edo State Governor Lucky Igbinedion, got away easily after being convicted for a N25 billion fraud. He was fined N3million in lieu of six years imprisonment. A similar sentence was handed to his brother in 2008 after he was found guilty of embezzling N2.8 billion and sentenced to six years imprisonment with an option of N3.5 million fine.
Igbinedion with an aide to the former governor, Patrick Eboigbodin (first accused), and their companies-Gava Corporation Limited; Romrig Nigeria Limited; PML Securities Company Limited and PML Nigeria Limited- were charged to court by the Economic and Financial Crimes Commission (EFCC) for alleged N25billion fraud, on 81 count charge of money laundering, abuse of office and fund misappropriation.
The offences, contravened Sections 1, 2, 3, 4, 5 and 10 of the Money Laundering (Prohibition) Act, and are punishable under Sections 14 and 15.
Justice Abubakar Liman of the Federal High Court in Benin sentenced Eboigbodin to 20 years in prison without fine option. He will spend two years in prison as the sentence will run concurrently. Igbinedion was sentenced to six years in prison with an option of N3million fine.
The Igbinedions’ cases are not isolated. About three years ago, former Police Pension Board boss, Yakubu Yusuf was sentenced to two years in prison with an option of N250,000 fine, after he was found guilty of embezzling N23.3 billion. Like the Igbinedions, he easily paid the fine and returned home.
At a time when some are campaigning for capital punishment for corruption, the sentences are perceived as insult on Nigerians and a set back in the fight against corruption.
This has exacerbated public anger and resentment against the judiciary, with many Nigerians accusing judges of protecting high profile criminals .
They wonder why Justice Liman did not sentence Igbinedion to six years imprisonment without a fine option; or six years in prison with a fine of N3 million to deter other public office holders.
Many see the verdict as a “slap-on-the-wrist” and are accusing the judge of compromise. But is that the case? Who should be blamed and how do we ensure that the punishment for politically exposed persons found guilty of corruption can contain the vice?
What the law says?
There are legislations on money laundering and corruption related charges. The EFCC Act, the Independent Corrupt Practices and Other Related Offences Commission (ICPC) Act, the Advance Fee Fraud Act and the Money Laundering (Prohibition) Act, among others, provide punishments ranging from two to 15 years for those found guilty of corruption.
Under the Money Laundering Act, which the accused persons were charged and convicted on, the law provides that a person convicted for such offence is liable to a minimum of two years in prison, a maximum of three years or an option of fine.
According to Section 15, any person who ‘(1) (c) carries out or attempt, under a false identity, to carry out any of the transactions specified in Sections 1 to 5 of this Act; or (d) make or accepts cash payments exceeding the amount authorised to be reported under this Act; or (e) fails to report an international transfer of funds or securities required to be reported under this Act…contravenes the provisions of Section 2, 3, 4, 5 or 10 of this Act; or commits an offence under this section.
‘(2) A person, who commits an offence under subsection (1) of this section, is liable on conviction- (a) in the case of an offence under paragraphs (a) to (c) of subsection (1) to imprisonment for a term of not less than 2 years or more than 3years; (b) in the case of an offence under paragraphs (d) to (f), where the offender- (i) is an individual to a fine of not less than N250,000 or more than 1million Naira or term of imprisonment of not less than 2 years or more than 3 years or to both fine and imprisonment; or (ii) is a financial institution or any other body corporate to a fine of not less than N250,000 or more than N1,000,000.00 (1 million Naira) (3) A person found guilty of an offence under this section may also be banned indefinitely or for a period of 5 years from exercising the profession, which provided the opportunity for the offence to be committed.’
The fight against corruption
Like cancer, corruption has continued to permeate all fabric of the national life, with daily reports of mind-boggling looting of state treasury by public officers and their cronies, while critical infrastructures that would have created employment opportunities for the masses, abandoned.
According to Transparency International’s Corruption Perceptions Index (CPI) for 2014, Nigeria, with 27 per cent grade, ranked 136 out of 175 countries. Despite the devastated effect of corruption in the polity, majority of the high profile cases have suffered severe setback at various courts across the country.
While the prosecuting agencies continue to secure stiff punishments for ‘lesser thieves’, they have continuously exhibited what observers described as incompetence as well as inadequate capacity to thoroughly investigate and prosecute high profile economic crimes.
Among the cases stalled from arraignment are those against the former Governors Orji Uzor Kalu (Abia), Abdullahi Adamu (Nasarawa), Jolly Nyame (Taraba) Abubakar Audu (Kogi), Joshua Dariye (Plateau), Ayo Fayose (Ekiti), Ibrahim Turaki (Jigawa), Chimaraoke Nnamani (Enugu) and Timipre Sylva (Bayelsa).
In spite of several anti-graft laws, there is a feeling of hopelessness among the low and middle class as it is believed that perpetrators of high profile corruption do not fear any consequences and are ‘untouchable’.
But despite the torrent of criticisms that have trailed Justice Liman’s verdict, some analysts think the judge has been unfairly lampooned since his decision was based on the charges before him.
They believe the law enforcement as well as prosecuting agencies are responsible for the lack of successes or the seeming weak sentences handed to high profile criminals.
According to them, rather than carry out thorough investigations and charge these persons under the appropriate laws with heavier punishments, the law enforcement agencies choose to implore lesser charges; living the judges with not much options.
However, some observers think Justice Liman in exercising his discretion, should have considered the effects of corruption, and chosen the stiffest among the provided options under the charge, rather than allowing Igbinedion pay a token N3 million and going home like a free man.
According to them, the most glaring of the complains against the judgment was that the co-accused was not given an option of fine. Critics are of the view that the judgment showed that the judge was not in tune with expectations of the people, as such, sent a signal that encouraged people to steal more.
Some have queried Justice Liman for adjourning the sentencing to April 30, a day after he found them guilty. They wondered whether it was an opportunity delibrately created to be reached out to or be induced.
According to them, sentencing a man convicted for N25 billion money laundering to a fine of N3 million, has further created an impression that children of the rich can get away with blue murder, while the poor get the full weight of the law for petty crimes.
Lawyers speak
•Quakers
Airing his view, a constitutional lawyer, Norrison Quakers (SAN), said: “You cannot blame the judge. There are two things to be considered. What is the penal sanction provision? What is the state of the evidence put forward by the prosecution? A judge will not go outside what the law says and must also not go beyond what is before him regardless of how he feels about a particular case.
“Also, for each offence, there is a punishment. While some of the punishments are mandatory, others are left at the discretion of the judge. The problem is not with the judge and it is not with the laws either because we have enough laws to combat corruption.
“Rather, it is as a result of the inefficiencies of the prosecuting or law enforcement agencies. We have a handful of laws that could be applied in cases of corruption or money laundering. There is provision for forfeiture of assets in the EFCC and the NDLEA Acts, which can be achieved through an Exparte Order.
“The challenge is with the flat-footedness of the prosecution. Rather than implore the full provisions of the law, they resort to compromise. It is not about the general perception of the public, but court decisions are taken based on evidence and facts placed before a judge and the relevant sections of the law under, which an offence is charged. No matter how a judge feels about a matter, he must not descend to the arena, else it would amount to miscarriage of justice.”
•Ozekhome
Similarly, Mike Ozekhome (SAN) and Adetokunbo Mumuni believed a judge cannot act beyond the charge before him. They argued that Justice Liman only exercised his discretion as provided for by the law and could not have gone beyond what was stated as punishment for the crime.
They said the way forward was for the legislature, which is saddled with the responsibility of enacting laws, to amend the enabling legislations in order to provide for stiffer and mandatory punishments for corruption.
Mumuni said serious matters should no longer be left at the discretion of the judge. He suggested the need for the laws to be more categorical and for the fine option on corruption cases removed
Ozekhome emphasised that the nation operates accusatorial system rather than inquisitorial criminal justice system, which rests the onus on the prosecution to prove an accused person’s guilt.
To executive director, Constitutional Watch, Ahams Njoku, the judgment was fair and in accordance with the law.
He said: “They (people) seem to be at a loss on why the money that was said to be laundered stood above the fine to be paid by Igbinedion. The first thing to note is that the offence appears to be a strict liability one.
“Igbinedion was said to have accepted cash payments of the sums of 10million, three hundred and nine thousand naira and also 21 million naira contrary to the Money Laundering Act (Section 15(1) 2004)…
“The next issue to consider is the sentencing under the Money Laundering Act (Section 15(2) 2004 thereof)… In other words, the judge has the discretion to either sentence the person to an option of fine or he can sentence the person the prison. He can also fine the person and at the same time send him to prison. But the thing to note is that the judge in exercising this discretion is guided by the law and judicial precedent.”
“By virtue of Section 36(12) of the 1999 Constitution, a court can only impose a sentence as prescribed by the law. It provides: “Subject as otherwise provided by this constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty, therefore, is prescribed in a written law; and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law”. “Any attempt by the judge in this case to have imposed any other sentence above the three million naira fine which is the maxim would not only be ultra vires but indeed unconstitutional.”
“One may suggest that the sentencing in this case was not only fair, but according to the law. Anything to the contrary would have been based on the whims and caprices of the presiding judge and the certainty of the law would have been violated. Then the court would cease to be a court of law, but a court of public sentiment.”
•Obayuwana
To former Edo State Attorney-General and Commissioner for Justice, Dr. Osagie Obayuwana there is need for the amendment of the laws to meet with the yearnings of the people.
‘Sentencing should be reflective of social policies. It is social expectations that the legislators in making the law should capture. It was social disapproval of the offence of armed robbery, murder and kidnapping that informed death penalty as sanction for anyone convicted of the offence.
“A lot of people are already calling for mandatory death penalty for corruption and most of the people clamouring for stiffer punishment against corruption are not of the ruling class, but this does not appear to be an area of importance for the National Assembly because they are also exposed.
“There is need for amendment of the criminal law to make punishment for corruption mandatory in order to forestall situations where judges in exercising their discretion, give sentences that defeat the purpose.
“Generally, corruption is perceived as an offence for the rich, not the poor. It entails not just stealing, but also abuse of public office with consequences that are far and wide which impact on millions. If we can be strict in punishing armed robbery, murder or kidnapping, why can’t we be that strict for corruption?
“If we do not want death penalty for corruption, then, it should be punishable with life imprisonment without an option of fine. That way, public officers will no longer be able to escape the weight of the law if found wanting.
“The incoming administration of Gen. Muhammadu Buhari must take concrete steps to ensure that all those former governors, politicians who have corruption charges but have been frustrating them, are speedily prosecuted.
“In order to deliver on his anti-corruption stance, the incoming legislature must amend the legislations for stiffer punishment. I also think that judicial officers as well as other public officials have to appreciate and match in line with public for corruption and corrupt practices as the bane of present day Nigeria.”
The Nigerian Bar Association (NBA), Ikeja Branch has held its 2015 Continuous Legal Education Programme, a platform intended to sharpen the skills of its members and make them more knowledgeable about new developments around the world. The two-day programme, which focussed on various aspects of the law, was attended by justices of the Court of Appeal, judges of the High Court of Lagos State, the National Industrial Court (NIC) and other legal practitioners, reports ADEBISI ONANUGA
Legal practittioners, including justices of the Court of Appeal, judges of the High Court of Lagos State and the National Industrial Court (NIC) and other lawyers converged on Ikeja, penultimate week to sharpen their skills, share knowledge in new areas of their profession and exchange ideas in order to keep themselves abreast of developments around the world.
The occasion was the two-day continuous legal education programme (CLEP) of the NBA Ikeja branch. The programme, which held at the at Adetiloye Hall of Arch Bishop Vining Memorial Cathederal Church, Ikeja, afforded the legal practioners oportunity to examine new areas of the laws, review basic practice and trial principles.
The lead speaker and expert on labour laws and industrial relations, Abiodun Owonikoko (SAN), in his 34-page presentation, dealt essentially on “the termination of private employment, employment with statutory flavour on grounds of misconduct with or without element of crime: How validly done; effect of such termination on employee’s entitlements, legal remedies available to such employees, Defences Available to the Employer, Impact of section 12 of the National Industrial Court Act 2006 allowing departure from applicability of Evidence Act to Labour litigation”.
Owonikoko, who enumerated the type of employment available in Nigeria to include employment made under the common law, employment with statutory flavour, employment where office is held at pleasure of employer and hybrid employment, said the crux of his paper was specifically on the determination of employment, that is, how to put an end to working relationship between employer and employee. Pointing out that there are just two ways by which an employment relationship can come to an end, he explained that determination of employment can either be by termination or dismissal.
The senior advocate took time to explain the determination of employment under the different types of employment available to employees. He explained that the effect of termination of employment under both private/common law employment and statutory employment generally, is that there ceases to be a contractual relationship between the parties and that, neither of the parties are bound by the terms of the employment contract.
Citing various authorities to support his submissions, Owonikoko dealt extensively on legal remedies available to employees after determination of employment, which include remedy of damages and entitlement to a remedy of re-instatement. On how to challenge wrongful determination of employment, the erudite lawyer said “the omnibus provision of section 254(c) (1) of the 1999 Constitution (as amended), gives the NIC original jurisdiction to hear matters involving employment determination. It thus follows that the appropriate court with jurisdiction to hear matters of this nature is the NIC and that the procedure to follow is to come by way of a General Writ of Complaint.
The senior lawyer, however, identifies a gap in the employment laws, which he noted, does not make for fairness in employment relationships, that is in the area of wrongful dismissal. According to him, injustice exists in the Nigerian labour market.
According to him, the courts, the employment and labour laws are yet to adequately embrace the challenge of unfair dismissal as contrasted with wrongful dismissal. He explained that unfair dismissal covers a whole range of unspoken, but apparent ill motivated grounds for causing an employee to lose his or her job. He stated that generally in Nigeria, motive is not a ground for contesting termination of employment. He said employer can terminate for good or bad or no reason at all.
”Except for the omnibus of Section 42 of the Constitution, there does not appear to be clear labour employment specific law in Nigeria that protects employees from unfair termination as a result of discrimination on grounds of sex, age, religion, ethnic group, gender, birth and HIV status, among others.
“This lacuna in our laws should be given urgent attention, especially as we transit into a new era of change with the in-coming administration of the All Progressive Congress (APC) at the federal level that has made job creation as one of its cardinal manifesto commitments,” he said.
Kemi Pinheiro (SAN), in his paper titled: “Preferring and Quashing Bare Charges, Holding Charges, Remand Charges etc”, citing relevant authority, said it is only when an accused pleads either guilty or not guilty to a charge as the case may be, that issues are joined in a criminal trial. He said until this happens, the accused person is technically outside the pale of the court’s jurisdiction”.
On the effect of making an application to quash a charge, the senior lawyer pointed out that “any objection to a formal defects in the charge should be taken before plea, otherwise the objection is taken as having been waived.
Citing Section 167 of the Criminal Procedure Act, Pinheiro counselled lawyers that a want of jurisdiction, which ordinarily could be raised at any stage of the trial, is better raised before plea is taken. He said in other jurisdiction, either party may move to quash either the whole of the indictment or a count. “The obvious time for doing so is before the accused is arraigned, although it would be seem that the defence may make the application at any stage of the trial,”he said.
He explained that the effect of a successful application is that the accused may not be tried for the indictment (or particular count to which the motion relates). “However, this does not mean that the accused is thereby acquitted,” he said.
An accused person, according to Pinheiro, does not have to enter the dock when challenging a charge preferred against him, even if present in court. Citing an authority to support his view, the senior lawyer posited that the appellant can only be ordered by the learned judge to enter the dock and plead to the charges when he had heard full arguments on the objection and ruled one way or the other.
Titilola Akinlawon (SAN), in her paper titled: “Adoption of Children: National and International Perspective”, said it is impossible to adopt a child without a court order. According to her, “a mere agreement in which a parent seeks to transfer his rights and duties to someone else, is ineffective and will not be recognised as an adoption. The idea of defacto adoption, that is, an arrangement where the child lives permanently with people, who have put themselves in “loco parentis” to the child is ineffective to give the carer, parental responsibility to remove that of his parents”.
Akinlawon explained that the Child Rights Act 2003 addresses children generally, but has specific provisions relating to adoption. She explained that Section 277 of the Act defines a child as a person under 18 years while Section 128 provides for when a court can make an order for adoption of a child and listed children that could be adopted to include those with no surviving parent or those abandoned, neglected, persistently abused or ill treated, and that for which there are compelling reason in the interest of the children on why they should be adopted.
The senior lawyer, however, clarified that provisions of Sections 145(1) and 131(1)(b),(c) and (d) put it beyond doubt that inter-country adoption is not allowed under the Child Rights Act.
She explained that allowing inter-country adoption would undermine the current effort by the government as well as non-governmental organizations to combat the rising spate of child trafficking.
Earlier, Lagos Chief Judge, Justice Olufunmilayo Atilade had stressed the need for lawyers to continuously update their knowledge of the law. She said this has become necessary if they must be abreast of developments in the legal circle around the world.
Justice Atilade who declared open the two-day Interactive seminar which has as theme, “Sustaining the Tempo of Cutting Edge Professionalism” said, “there is no limit to education. We must try at all time to meet all standards in international and domestic law practice. This is the only way we can ensure that we are current and up-to-date as members of the legal profession”, she stressed.
Justice Atilade remarked that the just concluded Commonwealth Law Conference held in Glasgow and at which she was in attendance, was part of the international effort to develop the profession and its practitioners.
The Lagos Chief Judge commended the quality of papers delivered by Nigerian lawyers who were speakers at the conference saying that they exhibited high intellectual capacity.
While commending the NBA for the seminar, she advised then to organize more of such retraining programme for their members in order for them to be able to discharge their functions in the best way possible.
Earlier in a welcome address, the chairman of the branch, Yinka Farounbi explained that the programme was intended to refresh and update legal practioners with new knowledge and modern day practice.
Farounbi expressed confidence that by the end of the programme, participants would have learnt new developments and abreast of new methods of litigation and adjudication.
The Chartered Institute of Professional Printers (CIPPON) has urged the Federal Government to enforce laws on printing.
One of them is the CIPPON Act of 2007 which empowers the institute to regulate printing in Nigeria.
At a press conference in Lagos which has as theme: Industrialising a nation through printing: Using the provisions of the law, the institute’s President Mr Wahab Muhammed Lawal sought the support of law enforcement agencies, especially the police and the Nigeria Customs Service (NCS).
“Nigeria can only be industrialised through printing if the government could strictly comply with the provisions of the law on patronage of local printers, while the law enforcement agents enforce positively on regulation of practice,” Lawal said.
According to him, it is the government’s duty to enforce laws it made, adding that the provisions of the Printers Act No. 24 of 2007 enjoins the government and print buyers to patronise local presses.
“If the government is strictly complying with the law it assented to, there should be no capital flight of printing jobs to foreign countries without the professional input of a regulatory body established by an Act of parliament, which is CIPPON,” he said.
The CIPPON president said adequate enforcement of the laws on printing would empower employers of labour to expand their investments by setting up paper mills, ink manufacturing companies, which will employ more people. “Government alone cannot provide employment,” Lawal said.
The institute said print operators need government’s support through tax incentives as the industry is capital intensive. He recalled that Malaysia, for instance, once declared a tax-free period for its printing sector.
CIPPON wants applicable laws applied to ensure correct payment of duties/tariff on printing materials as approved by the government; strict enforcement of payment of duties on importation of printed books; enforcement of the Local Content Act, as well as provisions of the Printers Act.
Lawal urged the government reduce tariff on raw materials that cannot be produced in Nigeria, adding that while the country’s paper mills are dead, Malaysia has no fewer than 30 mills, which makes it difficult for Nigerian printers to compete with their counterparts abroad.
“It is possible that people are benefiting from importing printing papers; maybe that is why they want to kill the local industry. The only functioning paper mill produces craft papers. People cannot invest without the government’s support. The government should support employers of labour. Issues like double taxation, power problem, high import cost must be addressed,” he said.
Lawal said printing can be a vehicle for national development if an enabling environment is provided for employers of labour to manage their investments, and if the relevant laws are adequately enforced.
On why the industry needs support, the CIPPON president said: “Printing is one of the highest employers of labour due to its many facets. It is the beginning of civilisation. Eighty per cent of what we know come from the printed word.
“Printing lubricates the operational wheels of a nation’s economy and is the engine-room of qualitative and productive education. The most economical way to disseminate information and preserve knowledge is through printing.”
With excitement, the Legislative and Executive officials of Yewa South Local Government Area of Ogun State, last Thursday, signed two bills into bye- laws. They were the bye- law on the Sales of identification jackets to all commercial motorcycle riders and bye -law for the establishment of an environmental sanitation task force.
The event was epoch-making as it was the first of its kind in the council; the first time bye- law to be so gazetted by the state government and because of the calibre of guests that witnessed the event.
In his opening remarks, the Leader of the Legislative Council, Hon Bankole Sheriff Olanrewaju, underscored the relevance of the bye-laws in regulating the conduct of commercial motorcyclists and ensuring a hygienic environment for residents of the council. All these, according to him, will guarantee good governance.
He assured that the legislative arm under him would always make laws for the good of the council. He described the event as very germane as it had public presentation, enlightenment and promulgation being performed at the same time.
In his welcome address, the Chairman of the council, Alhaji Safiu Abiodun Odebiyi, described the event as “the product of the activities of the councillors.” He added that without bye-laws, councils will not function well, noting that the Sanitation and Commercial motorcycle bye-laws are necessary to ensure better life for the citizenry. He, therefore, enjoined guests to properly enlighten the people on the laws.
The Legal Adviser to the council, Mr Tunde Ogunsola spoke on some of the important aspects of the bye-laws and the public presentation .He said as commercial motor cycle riding has become a means of livelihood for many, coupled with recent happenings as they relate to attitude of the riders ,it has become necessary to regulate the conduct of individuals in the business. He enjoined owners and motor cyclists to visit the council and register for Identification jackets as ignorance will not be an excuse .
On the Sanitation bye- law, he said every Thursday of the week would henceforth be observed as Sanitation day in all markets ,stalls and shops within the council between 8.00am and 10.00am.Besides,al l residents in the council shall observe last Saturday of the month as a Santation day in line with state government regulations from 7.00am to 10.00 am .Under the law, it is now an offence to dump refuse in public places ,it carries a fine. It is also mandatory for each household to procure dustbins from the council. Again, vehicles shall not be abandoned on the road beyond 24 hours after which it may be impounded.
During question and answer time, guests praised the efforts of the council in making life more conducive for residents but asked for more time to spread the news.
In his closing remarks, the Head of Local Government Administration, Engr Babatunde Odunlami allayed all fears of rushing into implementation. He said the council would visit every nook and cranny of the council area to explain to the people, assuring that every interest would be taken care of .He said that consultation on the bye-law started on August 13,2013 and interestingly, they were gazetted for April 2014.Besides using the public address system of the council to popularise the laws, the council will go radio ,television, newspapers and other media outfit to inform the residents of the council before implementing them, he assured.
PIONEER chairman of the Nigerian Bar Association ( NBA) Section on Business Law (SBL), Mr. George Etomi has urged Nigerians to comply with environmental laws to improve the quality of their lives.
He spoke at the public presentation of a book titled: Appropriate mechanisms for environmental protection and sustainable development in Nigeria – An advocate’s viewpoint in honour of the retiring Director-General, National Environmental Standards and Regulations Enforcement Agency (NESREA), Dr. Ngeri Benebo.
He praised Benabo for her achievements, saying her doggedness and passion for the environment led to the passage of over 24 environment bills into law by the National Assembly.
Etomi said: “Under her brilliant leadership, NESREA has developed 24 environmental regulations, on behalf of the Federal Government, which have been signed into law and published in the Official Gazette of the Federal Government of Nigeria.
“One of such regulations is the National Environmental (Control of Vehicular Emissions from Petrol and Diesel Engines) Regulation, 2010, S. I. No. 20, which is aimed at controlling the country’s air quality.
“A World Health Organisation (WHO) report revealed that in 2012 about seven million people died as a result of exposure to air pollution. Nigeria has over 10 million vehicles and three million motorcycles and is clearly not excluded from this statistic. The carbon monoxide, hydrocarbon and Nitrogen oxide emitted from these automobiles also causes skin cancer, cataract asthma and other respiratory diseases as well as impacting negatively on the ozone layer and global warming.’’
He said to combat the menace, NESREA is at the implementation stage of the pilot Vehicular Emissions Testing Programme.
The programme, he added, involves a mandatory test of vehicles for toxic air emissions, and emission reduction technology in vehicles.This would control toxic gas generated by vehicles on the roads. NESREA would carry out the tests with some government agencies. Vehicular emission testing centres would be set up in Abuja and in other parts of the country,’’ he disclosed.
“The Vehicular Emissions Testing Programme will greatly aid in the reduction of Nigeria’s carbon emissions to internationally acceptable standards. It will also help bring Nigeria at par with the developed nations which all run similar programmes. Another side benefit of reduced carbon emissions is that Nigeria would be able to earn carbon credits for trade on the global stage. This would be another source of revenue for the country, especially in these trying economic times.
NESREA, Etomi added, was addressing some peculiar environmental issues in the telecoms sector, especially the erection of masts. He said this was resisted by the teleco, which argued that NESREA is not the primary regulator of the telecoms industry.
Earlier, he said NESREA developed the National Environmental (Standards for Telecommunications/Broadcasting Facilities) Regulations, 2010 S. I. No. 11, which led to friction between the Nigerian Communications Commission (NCC) and NESREA.
However, the two agencies agreed to adhere to the telecoms companies’ Enivironmental Impact Assesments and the siting of masts and base stations, among other things, he added.
Etomi said some telcos have been complying, recognising that health and human benefits outweigh the monetary benefits of flouting environmental regulations.
He said Airtel has settled with NESREA on getting Environmental Impact Assessments. “Although NESREA is not the primary regulator for the telecoms sector, it is imperative that the TELCO’s cooperate with NESREA and find ways to address NESREA’s concerns, as all will feel the effect of any detriment to the environment due to their activities.
He said: “It is safe to say that Benebo’s tenure at NESREA brought issues of environmental compliance and enforcement to the national limelight. She adopted a participatory approach to environmental governance in Nigeria through the creation of the NESREA annual National Stakeholders’ Forum.
“The achievements of NESREA over the last eight years are too many to summarise in one article. It is hoped that the next tenure of leadership builds on these achievements and propels environmental governance in Nigeria to the next level.”
Another achievement of Benebo, Etomi said, was the revival of the National Toxic Waste Dump Watch Committee (NTWDWC), adding that it elevated e-waste prevention to regional and global levels.
“As Nigeria is an importing country it could be easily made a dumping ground for toxic waste. Recently, NESREA has made a lot of headway in the curtailment of the importation of electronic waste. Guilty vessels have been detected, detained and even sent back to their countries of origin after paying the imposed fines,’’ he added.
Civil society groups under the One Voice Coalition for Sustainable Development in Nigeria (OneVOICE) have urged the Independent National Electoral Commission (INEC) to enforce the laws regulating campaign expenses to reduce vote-buying.
It said INEC has allegedly failed to monitor and penalise candidates and political parties who violated the Electoral Act on voter-inducement.
“Some politicians use money to buy essential goods like sugar, salt, detergent, soap, rice which they distributed to people in the villages.
“During voting, some of them load the boots of their cars with plenty of money and go around to directly pay people to vote for their candidate.
“They also bribe electoral officers and the police who will then help them to cheat,” OneVOICE said.
INEC’s alleged failure to effectively check such electoral abuses in line with its powers under the Electoral Act has emboldened others, the coalition said.
OneVOICE urged voters to challenge cheating, saying: “It is not enough to be watchful or vigilant. Nigerians must plan to ensure that the procedures at elections are adhered to.”
It said while the Armed Forces, the police, the intelligence community and the INEC must insist on the inviolability of the rule of law, it is the people who must defend their votes.
“We, as non-state actors, must watch effectively that we forestall malpractices,” OneVoice said.
It said the civil society must collaborate against any bid to alter the people’s will, while mobile phones should be used to record counting and recording of election results.
“Different media channels can be used in calling members in other polling stations to monitor goings-on. There must be recording of the voting and counting process so that it can be used as evidence if there is any fraud happening,” OneVOICE said.
The group said the penalty for rigging and other forms of criminality is not exorbitant enough, hence many are willing to dare and break the law.
OneVOICE warned voters against accepting gratifications from candidates, saying: “When we accept money or gifts from politicians, we have sold our rights. We have allowed them to give us N100 and take millions from us, and take from us electricity, good roads, water, good schools, good and efficient hospitals etc,” it said.
OneVOICE also wants and end to the perception of politics as warfare. This, it said, can be achieved through a “reduction of the perquisites of political office.”
“This will likely assuage the relentless struggle for state power and its accompanying financial convolution of the political space,” the coalition added.
The Senate yesterday blamed the inefficiency of free trade zones (FTZs) in the country on weak regulatory framework guiding their operations.
Chairman, Senate Committee on Trade, Senator Odion Ugbesia, made the observation during a public hearing on a bill seeking to amend the Oil and Gas Export Free Zone Authority Act 2011.
Ugbesia said it was obvious that free traden zones in the country were far from achieving the purpose for which they were established.
He said: “Our free zones are far from achieving the purpose for which they were established and there are serious doubts as to whether Nigeria has indeed benefited from the Onne Oil and Gas Free Zones beyond the benefits accruable to an industrial area.
“This is because of weak regulatory framework guiding the operation of Free Zones in Nigeria.”
He said the amendments to the Act were proposed to ensure that the country benefited maximally from the huge investments in the FTZs.
Ugbesia said the most attractive feature of an FTZ anywhere in the world, is the tax holiday which investors enjoy as incentive and encouragement for investment which the proposed amendment provides for.
The Director General of the Bureau of Public Enterprises (BPE), Mr. Benjamin Dikki yesterday said the agency is sponsoring eight reform bills in the National Assembly in order to repeal monopoly laws.
He added that the reform bills are to liberate the various sectors of the economy, separate the roles of policy formulation from regulation and operations and also set up independent regulators for the sectors.
Making a presentation to officials of Department for International Development (DFID) and other international development partners on “The Federal Government Privatisation and Economic Reform Programme” in Abuja yesterda, Dikki the eight bills were designed to eradicate all forms of monopolistic practices in the affected sectors.
In a statement endorsed by its Head, Public Communications, Chigbo Anichebe said the bills are the Railway Bill, National Transport Commission Bill, Inland Waterways Bill, Ports & Harbor Reform Bill, Road Sector Reform Bill, Federal Competition and Consumer Protection Bill, Roads Fund Bill, and Postal Sector Reform Bill.
He also identified other sector-specific reform laws midwifed by the BPE to include Electric Power Sector Reform Act (ESPRA), Nigeria Railway Commission Bill, Telecommunications Act, National Inland Water Way Bill, Solid Minerals Act, Gas Bill, Petroleum Industry Bill, Federal Competition Commission Bill, Ports and Harbour Authorities Bill, Postal Sector Reform Bill, National Transport Commission Bill, Industrial Policy, Federal Roads Authority Bill, Pension Reform Act, and Roads Fund Bill.
Dikki further elaborated on the role of the BPE in championing the reforms of the nation’s seaports through the concession of the various port terminals, adding that before the reform, it was practically impossible to carry out meaningful business activities in the ports as it took months to clear goods.
He said ports operations were characterised by long waiting periods, diversion of Nigerian bound vessels to neighboring countries and very high and duplicated charges to Ports users.
According to him, collaboration with international development partners has positioned the Bureau as Knowledge based institution.
He said without the Technical and Financial support of the World Bank, the US Agency for International Development (USAID), the United Kingdom DFID and other development partners, the reform and privatisation programme of the Federal Government would not have achieved the success recorded so far.
