Tag: national assembly

HOUSE Speaker Aminu Tambuwal yesterday in Kano dismissed as false, claims that federal lawmakers are draining the nation’s economy.

Tambuwal, who was the Guest Speaker at the 30thMemorial Anniversary Lecture of Malam Aminu Kano, said of the Federal Government’s yearly N4.9 trillion budget, the National Assembly has received N190 billion in three years.

The lecture was held at the Aminu Kano Centre for Democratic Research and Training, Mambaya House, Kano.

According to the Speaker, in the last three years, the Budget of the National Assembly, which comprises lawmakers, aides and other workers of the Secretariat got only N190 billion, which he described as quite insignificant against the perception of the public that the National Assembly members take a large chunk of the Federal Government budget.

Defending the lawmakers, Tambuwal said that apart from the N80 billion received by the Judiciary, in addition to the N190 billion, the Federal Government has in its kitty about N4.6 trillion to spend, pointing out that, what is the justification when agencies of the Federal Government budget are not even sent to the National Assembly .

On allegations of corruption on members of the National Assembly, the Speaker argued that for the case of corruption to be established against anyone, a competent court of jurisdiction must have found him guilty beyond reasonable doubt, citing former Senate president, Adolphus Wabara’s case.

The Speaker traced the country’s socio-political and economic crisis to lack of sincerity and fear of God by the nation’s political leaders and expressed the fear that if the trend is allowed to continue, the country will be plunged into chaos.

In his paper: “The Rule of Law as Fundamental Condition for Democracy and Good Governance in Nigeria”, Tambuwal noted that the prerequisites for a thriving democracy are abidance by certain normative principles, as well as their internalisation and acceptance as doctrines of political participation.

The principle of the Rule of Law, Tambuwal said stems from the view that a democratic government, normatively and empirically should be able to meet certain universally accepted values and norms, which govern democracy, stressing that the promotion of human rights and its corollary principles of the Rule of Law is : “Nonetheless the foundation for the realisation of all other elements of a functional Democracy.”

FOLLOWING the public out cry that trailed previous application of plea bargaining of the country, the House of Representative has made adequate provision to guide and regulate the application of plea bargain in the the new Administration of Criminal Justice Bill 2013 for which public hearing will hold on April 30.

The bill, sponsored by the chairman, House Committee on Human Rights and Legal matters, Dr. Ali Ahmad, which seeks to streamline Criminal Justice Administration in the country, has been on the floor of the House for some time.

One fundamental aspect of the Bill is the provision for Plea Bargain and if passed into law, may be applied under properly guided and specified conditions.

The concept of Plea Bargain has been ridiculed and abused in our legal system because the process of its application and administration had not been streamlined at all under our laws.

Most senior lawyers have applauded the concept, but obviously condemned its application in our system because it has been grossly and manifestly abused in those situations.

However, the Lagos State Administration of Criminal Justice Law clearly provides for Plea Bargaining in the law. Section 75 of the Law gives the State Attorney-General and Commissioner for Justice the right to determine the acceptance of a plea Bargain under three parameters.

The bill before the National Assembly provides for the proper checks and balances to safeguard the interest of the public and justice to avoid abuse. Plea Bargain constitutes about 90% of all criminal trials in the USA and other developed democracies.

The bill fully provides for critical aspects of criminal justice administration and non custodian sentences such as

•Alternatives to prison sentence (eg community service);·

•Central Criminal Record Registry;

•Arrest protocols;

•Time frame for issuing DPP advice to the Police;

•Case management measures for reducing pre-trial detention;

•Prohibition of arrest of person for reason only of affinity with a suspect;

•Quarterly report of arrests to the Attorney General by the police;

•Victim compensation/restitution;

•Protection of victims of sexual offe

Section 270 of the bill provides;

Defendant may plead guilty for lesser offence(s) than offence charged

(1) Notwithstanding anything in this Act or in any other enactment, the Prosecutor may:

(a) receive and consider a plea bargain from a person charged with an offence either directly from that person charged or on his behalf, by way of an offer to accept to plead guilty to a lesser offence (s) than that charged;

(b) offer a plea bargain to a person charged with an offence.

(2) Where the Prosecutor is of the view that the offer or acceptance of a plea bargain is in the interest of justice, the public interest, public policy and the need to prevent abuse of legal process, he may offer or accept the plea bargain.

(3) The prosecutor and the defendant or his legal practitioner may before the plea to the charge, enter into an agreement in respect of –

(a) of the terms of the plea bargain which may include the sentence recommended within the appropriate range of punishment stipulated for the offence or a plea of guilty by the defendant to the offence (s) charged or a lesser offence of which he may be convicted on the charge, and

(b) an appropriate sentence to be imposed by the court if the defendant is convicted of the offence to which he intends to plead guilty.

(4) The prosecutor may only enter into an agreement contemplated in subsection (3) of this section –

(a) after consultation with the police responsible for the investigation of the case and the victim, and

(b) with due regard to the nature of and circumstances relating to the offence, the defendant and public interest.

(c) in determining whether it is in the public interest to enter into a plea bargain, the prosecution shall weigh all relevant factors, including:

i. the defendant’s willingness to cooperate in the investigation or prosecution of others;

ii. the defendant’s history with respect to criminal activity;

iii. the defendant’s remorse or contrition and his willingness to assume responsibility for his conduct;

iv. the desirability of prompt and certain disposition of the case;

v.the likelihood of obtaining a conviction at trial, the probable effect on witnesses;

vi. the probable sentence or other consequences if the defendant is convicted;

vii. the need to avoid delay in the disposition of other pending cases; and

viii. the expense of trial and appeal.

ix. The defendant willingness to make restitution or pay compensation to the victim where appropriate

(5) The prosecution shall afford the complainant or his representative the opportunity to make representations to the prosecutor regarding –

(a) the content of the agreement: and

(b) the inclusion in the agreement of a compensation or restitution order.

(6) An agreement between the parties contemplated in subsection (3) shall be reduced to writing and shall–

(a) state that, before conclusion of the agreement, the defendant has been informed –

i. that he has a right to remain silent;

ii. of the consequences of not remaining silent;

iii. that he is not obliged to make any confession or admission that could be used in evidence against him.

(b) State fully, the terms of the agreement and any admission made, and

(c) Be signed by the prosecutor, the defendant, the legal practitioner and the interpreter, as the case may be.

(7) The presiding judge or magistrate before whom the criminal proceedings are pending shall not participate in the discussion contemplated in subsection (3): Provided that he may be approached by counsel regarding the contents of the discussions and he may inform them in general terms of the possible advantages of discussions, possible sentencing options or the acceptability of the proposed agreement.

(8) Where a plea agreement is reached by the prosecution and the defence, the prosecutor shall inform the court that the parties have reached an agreement and the presiding judge or magistrate shall then inquire from the defendant to confirm the correctness of the agreement.

(9) The presiding judge or magistrate shall ascertain whether the defendant admits the allegation in the charge to which he has pleaded guilty and whether he entered into the agreement voluntarily and without undue influence and may –

(a) If satisfied that the defendant is guilty of the offence to which he has pleaded guilty, convict the defendant on his plea of guilty to that offence, or

(b) If he is for any reason of the opinion that the defendant cannot be convicted of the offence in respect of which the agreement was reached and to which the defendant has pleaded guilty or that the agreement is in conflict with the defendant’s right referred to in subsection (6) of this section, he shall record a plea of not guilty in respect of such charge and order that the trial proceed.

(10) Where a defendant has been convicted in terms of subsection (9) (a), the presiding judge or magistrate shall consider the sentence as agreed upon and if he is–

(a) Satisfied that such sentence is an appropriate sentence, impose the sentence; or

(b) Of the view that he would have imposed a lesser sentence than the sentence agreed, impose the lesser sentence; or

(c) Of the view that the offence requires a heavier sentence than the sentence agreed upon

(d) he shall inform the defendant of such heavier sentence he considers to be appropriate.

(11) Where the defendant has been informed of the heavier sentence as contemplated in subsection (10) (c) above, the defendant may –

(a) Abide by his plea of guilty as agreed upon and agree that, subject to the defendant’s right to lead evidence and to present argument relevant to sentencing, the presiding judge or magistrate proceed with the sentencing, or

(b) Withdraw from his plea agreement, in which event the trial shall proceed de novo before another presiding judge or magistrate, as the case may be.

(12) Where a trial proceeds as contemplated under subsection (11) (a) or de novo before another presiding judge, or magistrate, as contemplated in subsection (11) (b),-

(a) No references shall be made to the agreement;

(b) No admission contained therein or statements relating thereto shall be admissible against the defendant; and

(c) The prosecutor and the defendant may not enter into a similar plea and sentence agreement.

(13)When a person is convicted and sentenced under the provisions of subsection (1) of this section, he shall not be charged or tried again on the same facts for the greater offence earlier charged to which he had pleaded to a lesser offence.

(14) Plea Bargaining during the course of the trial; Conditions

The prosecution may enter into plea bargaining with the defendant, with the consent of the offended party, during or after the presentation of the evidence of the prosecution, but before the presentation of the evidence of the defence and in no case after the dismissal by the court of a demurrer to evidence, provided that all of the following conditions are present:

a. The evidence of the prosecution is insufficient to prove the offence charged beyond reasonable doubt;

b. In cases involving the recovery by or restitution to the offended party of property in crimes against property and those committed by public officer in relation to public funds such as but not limited to the crime of plunder, graft and corrupt practices, bribery and economic crimes, the defendant makes a full restitution of the property or public funds involved; and

c. In cases of conspiracy and the defendant has not yet qualified as a state witness in accordance with the Rules of Criminal procedure, the defendant fully cooperates by providing among others, documentary, object and testimonial evidence against the principal conspirators responsible for the commission of the offence charged and who are most guilty. 271. Plea to information or charge

(1) Before a person takes his plea, the court shall inform him of his rights under the provisions of section 269 of this Act.

(2) The person to be tried on a charge or an information shall be:

(a) brought before the court unfettered unless the court sees cause otherwise to order, and the charge or information shall be read over and explained to him to the satisfaction of the court by the registrar or other officer of the court; and

(b) called upon to plead instantly unless, where the person is entitled to service of the information, he objects to the non-service and if the court finds that he has not be been duly served.

(3) The court shall record the fact that it is satisfied that the defendant understands the charge or information read over and explained to him in the language he understands, and shall record the plea of the defendant to the charge or information as nearly as possible in the words used by him.

272. Proof of previous

conviction

Where the fact of a previous conviction of a defendant is a fact in issue, the prosecution shall prove the same in accordance with the provisions of the Evidence Act.

 

The beauty of law is that it is dynamic and never static. This sterling quality of law enanbles it to change with situations and circumstances. Thus where a law made for the good of the people or of the state is found to be counter productive or is no longer serving the purpose for which it was made steps are taken to amend that law to ensure that the expectations of the people are met.

This was exactly what happened during the turbulent days of the Yar’adua Administration when lacunae in the 1999 constitution almost triggered a constitutional crisis in the country. The National Assembly commendably rose to the occasion by applying the doctrine of necessity to make President Jonathan who was then the Vice President the Acting President. The National Assembly followed this up by amending the Constitution to ensure that the lacunae which led to the observed lapses were rectified. This singular act of patriotism by the National Assembly saved the country from imminent disintegration.

The constitutional amendment currently being undertaken by the National Assembly presents another golden opportunity for the National Assembly to save our democracy from the hands of election riggers who are the ultimate beneficiaries of section 285 (6) (7) of the 1999 Constitution as amended.

Section 285 (6)(7) of the Constitution of the Federal Republic of Nigeria 1999 (as amended makes it mandatory for election petitions and appeals arising therefrom to be disposed of within 180 days and sixty days respectively.

Protracted electoral disputes (with the dangers associated with them) are the order of the day in Nigeria and it was to curb the ugly trend that the National Assembly amended the constitution to introduce time limits in election disputes.

There is therefore no doubt that the National Assemnbly had the over riding interest of the nation at heart when it amended the constitution as cited above.

 

Current realities

The realities on ground today point unequivocally to the fact that the constitutional amendments effected by the National Assembly have resulted in more injustice and untold hardship than they were intended to prevent.

In ANPP Vs Mohammed Goni and others (Unreported but see appeal Nos SC/1/2012 and SC/2/2012) the Supreme Court dismissed the appeal on the ground that it had become statute barred by virtue of section 285(7) of the Constitution.

Consequent upon the foregoing decision of the Supreme Court, many cases which the Supreme Court itself had sent back to various tribunals for trial de novo, were abruptly dismissed by those tribunals because they are bound by the apex court’s decision in ANPP Vs Mohammed Goni and others (supra).

The injustice inherent in the foregoing lies in the fact that many litigants who had genuine cases were denied the opportunity of ventilating their grievances. This was neither because they were not willing to prosecute their cases nor because they did not have the capacity to do so. It was purely on technical grounds that their cases were thrown out.

The worst aspect of it is that (just as The Nation pointed out in one of its editorials) all a smart politician needs do, is to rig himself into office. Once he gets into office, he will do everything humanly possible to ensure that the trial of the case is delayed as much as possible. Once the case lasts up to 180 days in the tribunal, the very person who rigged himself into office will apply that the case should be struck out for being time barred.

It is therefore not difficult to see that election riggers are very likely to be the greatest beneficiaries of this law.

For this reason, I believe and strongly too that this law is obnoxious and must be revisited. It is obnoxious because it constitutes a very big stumbling block to the growth of our hard carned domocracy.

 

Unconstitutionality of

the amendments

The constitution of the Federal Republic of Nigeria (as amended) does not permit the legislature to enact laws that either oust or purport to oust the jurisdiction of courts or that of judicial tribunals established by law (see section 4 (8) of the 1999 constitution as amended). This is however subject to very few exceptions recognized by the constitution itself.

But section 285 (6) (7) amount to ouster clauses in that they purport to oust the jurisdiction of election tribunals and election appeal tribunals.

In my humble opinion, section 285 (6) (7) effectively oust the jurisdiction of these tribunals through the back door because once an election tribunal hears a partuicular case for 180 days, its jurisdiction is automatically ousted. The same fate awaits an appeal tribunal that hears an appeal for 60 days. What other evidence does one need to be convinced that section 285 (6) (7) are ouster clauses.

 

Denial of fair hearing

Fair hearing is the constitutional right of every litigant (see section 36 (1) of the constitution). However, when a case instituted before a court is abruptly terminated as a result of time limit imposed by law, the affected litigant loses the opportunity of being heard. In Ceekay Traders Ltd. Vs. General Motors Ltd (1992) 2NWLR part 222 page 132 at 139 ratio 11, the Supreme Court emphasized that the right to be heard is a fundamental and indispensable requirement of every judicial decision.

The electoral Act 1982 contained provisions that were substantially in pari materia with section 285 (6) (7).

In Paul Unongo Vs Aper Aku and 2 others (1983) 9 and 11 SC129 the Supreme Court voided the provisions of section 140 (2) of the Electoral Act 1982 on the ground that it interfered with and impeded the judiciary in the performance of its functions under the constitution. The apex court equally held that the law violated the principle of fair hearing. If this is true and there is no doubt that it is then section 285 (6) (7) of the constitution is a contradiction of section 36(1) of the same constitution. The former takes away with the left what the latter gave with the right hand. The conflict or contradiction should therefore be resolved in favour of secton 36 (1) i.e fair hearing.

Although the Supreme Court has the power to reverse its own judgment, the process is usually cumbersome and takes a long time to accomplish. It is therefore better for the National Assembly, to take a critical look at Section 285 (6) (7) and quickly expunge them from the constitution. In my very humble view, it better for cases to last long in courts and justice prevails at the end of the day than for litigants to be denied the right to fair hearing in the name of expeditious trials.

 

Seperation of powers and

independence of the judiciary

The doctrine of seperation of powers is to the effect that a court cannot be directed, controlled, compelled or impeded in its functions by any of the other arms of government.

It is based on this principle that a law which imposed a 30 day limit on American Courts to hear and dispose of cases was declared null and void (see Schario Vs State (1922) 105 Ohio St, 535 13 SNE64).

What this means is that the Legislature acted ultra vires by enacting section 285 (6) (7).

CONCLUSION

The fact that the Supreme Court’s decision in ANPP Vs Mohammed Goni and others (supra) has engendered grave injustice and hardship to aggrieved parties in election disputes can not be gain said. Indeed, why the Supreme Court decided to kowtow to the whims and caprices of the legislature remains regrettable and inexplicable. This is the same Supreme Court which has over the years jealously gaurded the independence of the judiciary by refusing to succumb to ouster clauses in legislations see Paul Unongo vs. Aper Aku (supra). In Inakoju Vs Adeleke (2007) AFWLR (Pt353) 3 at 93-94. Tobi JSC declared inter alia ouster clauses are regarded as antithesis to democracy…. When ouster clauses are provided in statutes courts invoke section 6 (of the constitution) to police their constitutionality or constitutionalism.

It is humbly submitted that the supreme court ought to have qualified the applicability of section 285 (6) (7) by insisting that in cases where trial de novo was ordered, the 180 days stipulated by the constitution should start counting from the day the case was started afresh. This was the humble view I expressed in reaction to an article written by J.S. Okutekpa (SAN) wherein he accused tribunals hearing cases beyond 180 days of insubordination (see J.S Okutepa (SAN) We advocate Substantial justice. The Nation 3rd Janaury 2012).

However, I pointed out that the legal implication of a trial de novo is that everything done in the previous case had been swept clean and would never be considered in the fresh trial (see Iheanyi Maraizu: Re: We Advocate Substantial Justice The Nation 11th September 2012).

Failure to do this will negate the maxim Ubi Jus, Ibi Remedium (where there is a right is a remedy) as aggrieved litigants will be left without any means of ventilating their grivances.

 

• Maraizu is the Principal Counsel

Iheanyi Maraizu & Co, Abuja

The Nigerian Bar Association (NBA) has re-iterated its call for a referendum in the effort to amend the 1999 Constitution.

NBA President Okey Wali (SAN), who led a delegation of the association’s officers on a visit to the Senate President, David Mark last week.

It expressed lack of confidence in the ongoing process to amend the constitution, especially as it did not provide for a referendum to collate, aggregate and accommodate the views of a broad spectrum of Nigerians.

Daudu praised Mark for providing effective and stable leadership for the senate in recent years.

He also expressed appreciation for the support of the Senate in pushing through some justice sector bills sponsored by the NBA.

He informed the National Assembly that because of the importance of the rule of law to the Bar, NBA has inaugurated the Legislative Assembly Working Group and the Rule of Law and Constitution Review committee to liaise with the National Assembly on behalf of the NBA to make sure that the rights of every Nigerian is respected under our laws.

He assured the Senate President that the NBA is ready to part the National Assembly at no cost, noting that this is its contribution to fatherland.

Wali SAN said: “Anybody who believes in the rule of law must pay attention to the constitution and its amendment. The NBA has been in support of the ongoing process and for a referendum to ensure the participation of every Nigerian in this fundamental issue and amendment of our constitution.

“Nigerians have really complained that they have never been part of or participated in the making of their Constitution from independence till date, hence the call by the NBA for mass participation in the ongoing process so that we get a constitution the we can confidently affirm that ‘We, the people of the of the Federal Republic …”

He commended the current efforts of the National Assembly through Public hearings at different constituencies, but said notwithstanding, there is need for a referendum.

Mark thanked the NBA for its contributions to the work of the National Assembly saying that he sees the NBA and other professional groups in the country as partners in progress contributing to national development and progress.

“I appreciate the contributions of the NBA which I see as being made in good faith,” he said.

Mark said no Constitution is perfect, hence the need for amendment. “The document we have now, our Constitution, has set out modalities and procedures for its amendment which does not include a referendum,” he said.

He stated that at the moment, the Senate has a series of public hearings in the Senatorial zones and the States which will allow Nigerians to make input in the ongoing amendment process.

Deputy Senate President, Ike Ekwremadu and Senate Leader, Senator Victor Ndoma Egba corroborated the Senate President’s position that the laws, especially the Constitution, make specific provisions for situations where the Independent National Electoral Commission (INEC) can conduct a referendum.

This, they said, does not include the amendment of the Constitution, adding that until the Constitution is amended to provide for referendum in the process of amending the constitution, it cannot be adopted.