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Tag: unconstitutional

  • ‘Why conviction of 54 soldiers is unconstitutional’

    ‘Why conviction of 54 soldiers is unconstitutional’

    The recent secret trial and eventual conviction and sentence to death of soldiers by a military tribunal is unconstitutional, null and void. The trial and conviction should be assumed not to have taken place.

    The reason is plain enough: Section 36(3) of the 1999 Constitution mandatorily requires all criminal trials to be conducted in public and not in secret. The secret trial of these suspects, therefore, amounts to a gross violation of this mandatory constitutional provision.

    Let it be sounded out in crystal clear terms that section 36(3) of the Constitution falls under Chapter IV of the said Constitution,  which in turn has guaranteed certain inalienable rights termed fundamental rights. Superior courts of record in Nigeria, including the Supreme Court, have held that these rights are above the ordinary laws of the land, in this case, including military laws and rules. See Randome-Kuti vs. Attorney-General of the Federation (1985) 2 NWLR (Pt. 6) 211 SC; WAEC vs. Adeyanju (2008) 9 NWLR (Pt. 1092) 270 at 304 SC and Essien vs. Inyang (2012) All FWLR (Pt. 628) 951 at 967 CA, etc.

    More importantly, the Supreme Court in the fairly recent case of Nigerian Army vs. Aminun-Kano (2010) All FWLR (Pt. 528) 1805 at 1832 SC held in emphatic terms that the fundamental rights provisions of the Constitution apply to all Nigerians, including members of the Armed Forces, who are also entitled to the protection of the guaranteed rights!

    It is in the light of the above that I submit on most firm grounds that the secret trial and conviction of 54 soldiers by a military tribunal is null and void on the ground that it infringes on section 36(3) of the Constitution. Be it noted that this subsection has specifically outlawed secret criminal trials by a “court or tribunal.” A military tribunal, without any iota of doubt, is covered by these provisions.

    Finally, it will be idle to argue that failure by defence counsel to raise timely objection against the said trial will rob him of the opportunity to do so on appeal. In the first place, the right guaranteed under section 36(3) being fundamental, cannot be waived. Secondly, superior appellate courts of record in Nigeria have been consistent in annuling trials which offend the subsection, objection or no objection. See lavishly on this: Edibo vs. State (2007) All FWLR (Pt. 384) 192 SC, Onwubuya vs. Statw (2014) All FWLR (Pt. 742) 1700 CA and Okoro vs. State (2012) 1 SC (Pt. 1) 1 at 50.

    Head or tail, therefore, the trial, conviction and sentence to death of 54 soldiers by a military tribunal, in so far as it was done in secret, remains unconstitutional, null and void. I strongly believe the Court of Appeal will void the convictions.

     

    • Hon (SAN) is a Constitutional lawyer and author. 

  • APC: Legislators’ demand unconstitutional

    APC: Legislators’ demand unconstitutional

    The All Progressives Congress (APC) has slammed the PDP members of the Nasarawa House of Assembly for demanding the dissolution of the panel set up by the Chief Judge to probe the impeachment charges against Governor Umaru Al-Makura, saying the call is unreasonable, unconstitutional and way too late.

    In a statement yesterday by its National Publicity Secretary, Alhaji Lai Mohammed, the party said the demand by the lawmakers shows they either have a very poor understanding of the Constitution or they are blinded by their desperation to impeach the governor.

    ‘’Either way, they have boxed themselves into a tight corner. Holding an illegal sitting in Abuja with a fake mace is as ridiculous as the demand by the lawmakers for the dissolution of the panel set up by the Chief Judge.

    ‘’Section 188 (5) of the Constitution is clear: ‘Within seven days of the passing of a motion under the foregoing provisions of this section, the Chief Judge of the state shall, at the request of the Speaker of the House of Assembly, appoint a panel of seven persons who in his opinion are of unquestionable integrity, not being members of any public service, legislative house or political party, to investigate the allegation as provided in this section’.

    ‘’It is important to point out to the desperate lawmakers that the key words in that section is that the Chief Judge must appoint persons WHO IN HIS OPINION (emphasis ours) are of unquestionable integrity. At this juncture, it is neither the opinion of the Speaker nor that of the legislators that counts, it is the opinion of the Chief Judge.

    ‘’Therefore, neither the Speaker, the lawmakers nor the Chief Judge can dissolve the panel at this stage, and none of them can stop the impeachment process. Once the Chief Judge has appointed the panel under section 188 (5), he becomes ‘functus officio’, that is he has no further powers on the matter. This is the situation of things at present and the lawmakers can only await the report of the panel,’’ it said.

    The APC said, however, that it was not surprised by the unwarranted and illegal call for the dissolution of the panel by the PDP members of the Nasarawa legislature, because that call falls within the realm of the runaway impunity for which the PDP and the Jonathan Administration have become infamous.

    ‘’The Jonathan Administration, for one, is always scoring a first in the area of impunity. This is the first time in the history of our democracy that a House of Assembly is seeking to dissolve the panel of seven judges it requested to be set up. This is unacceptable and it will not fly.

    ‘’What the House is suffering from now is called boomerang. Against sound advice, it went ahead to initiate the impeachment process. Well, it must now follow it to its logical conclusion. The Chief Judge cannot be made to dissolve the seven-man panel because he simply lacks the power to so do,’’ the party said.

  • Deploying soldiers for elections is unconstitutional, says Falana

    Deploying soldiers for elections is unconstitutional, says Falana

    Lagos lawyer Mr. Femi Falana (SAN) has said it is illegal and ultra vires for the President to deploy armed forces to maintain law and order during elections.

    In a statement yesterday in Lagos, titled, Illegal Involvement of Soldiers in Election Duties, Falanasaid Sections 215 and 217 of the Constitution stipulates that the power of the President to deploy Armed Forces for internal security is limited to the suppression of insurrection, including insurgency and aiding the police to restore order when it has broken down.

    The frontline lawyer said instead of using soldiers during elections, the President should strengthen the police to ensure internal security while the Armed Forces should be restricted to defend the nation’s territorial integrity.

    He stressed that under the current constitution, the President lacks the power to involve soldiers in maintaining law and order during elections.

    Falana said: “Even in the Northeast, a state of emergency had to be declared by the President to justify the deployment of the Armed Forces as part of the extraordinary measures he was required to take to restore law and order pursuant to Section 305 of the Constitution. Even then, the President had to seek and obtain the approval of the National Assembly for the deployment for a specific period of time.”

    The lawyer described as “misleading apologia for the militarisation of the recent governorship election in Ekiti State” an article by Bashorun Akin Osuntokun on the “militarisation and other fallacies” published in his weekly column in ThisDay of July 11.

    According to him, Osuntokun, in hailing the soldiers for displaying professionalism, “was curiously silent on the infringement of the fundamental right of Governor Rotimi Amaechi’s freedom of movement, which occurred at Iju-Itagbolu in Ondo State, contrary to Section 41 of the Constitution”.

    He added: “The governor, who was billed to attend a political rally at Ado-Ekiti on June 19, 2014, was crudely turned back by the soldiers who claimed that they were acting on ‘orders from above’.

    “Mr. Osuntokun was equally silent on the illegal curfew imposed on Ekiti State by the army. Or, was any curfew declared by the relevant authorities that was not announced? A client, Mr. Bayo Fajimi, who was going home from Akure, Ondo State (his place of residence), was disenfranchised as he was prevented by the soldiers from entering Ekiti State at 6.30pm on June 20 because of the illegal curfew! Is the Bashorun not aware that the soldiers subjected every hotel in Ado-Ekiti to a search without warrant between 10pm and 2am for the sole purpose of ejecting all those who could not give ‘satisfactory’ explanation of their business in Ekiti State? Yet, while all ‘illegal aliens’, like Governor Amaechi and others suspected to be All Progressives Congress (APC) members were harassed and expelled from the state by the army, some non-indigenes, who are chieftains of the Peoples Democratic Party (PDP), including two serving ministers and an influential thug from Anambra State, were allowed to ‘monitor’ the election. Indeed, they were fully protected by the armed Gendarmes.

    “Even though the Bashorun admitted that he was ‘struck and inconvenienced by the rigour and saturation of the security blanket’ on account of repeated security check points, he dismissed the complaints of the militarisation of the election. As far as he is concerned, the United States Embassy had endorsed the militarisation by issuing a statement to the effect that ‘the security forces collaborated effectively and provided a safe and secure environment free of major incidents’…”

  • ACN condemns ‘unconstitutional’ change of govt in Egypt

    ACN condemns ‘unconstitutional’ change of govt in Egypt

    The Action Congress of Nigeria (ACN) yesterday described as a blow to democracy last week’s “unconstitutional” change of government in Egypt.

    In a statement in Lagos by its National Publicity Secretary, Alhaji Lai Mohammed, the party said it does not matter how popular the public protests that led the military to make the change was, what happened in Egypt was a coup d’etat which must be condemned.

    “Democracy remains the best form of government known to man, and in order to grow it, it must be nurtured. But if every time there are protests in a democracy, the military moves in to effect a change of government, then democracy will never grow.

    “Democracy has some universal tenets, which include the fact that free and fair election is the only means of getting to power and the only way of losing it. This means that even if people make a wrong choice, they are stuck with it until the next elections, unless in countries where you have a recall mechanism. Some may describe this as a drawback, but there can be no other way if democracy is to be properly practised,” it said.

    ACN said while many Britons and Americans disagreed with their governments over the Iraq war and held several public protests to vent their disappointment, that did not cause the military in both countries to push their democratically-elected governments out of power, as was the case in Egypt.

    It also recalled that during former President Umaru Musa Yar’Adua’s illness, the party (ACN) and a number of civil society groups insisted that the constitution must be followed, as many in Yar’Adua’s inner caucus plotted endlessly for him to hold on to power, even when it became clear that he could no longer function effectively.

    The party said while many in Egypt may not like the Muslim Brotherhood or be happy with the government of President Mohammed Morsi, the fact remains that they both won an election that was globally adjudged to be free and fair.

    ACN hailed the African Union (AU) for suspending Egypt’s membership of the continental body in the wake of the coup, saying it shows that it (AU) is serious about the adherence to its Constitutive Act, which prohibits an unconstitutional change of government.

    The party also said the Nigerian government did the right thing by promptly condemning the action of the Egyptian military and calling for the immediate restoration of democracy in the North African country.

  • Lawyer: Kaadi Igbeayo is unconstitutional

    Activist lawyer Charles Titiloye yesterday described the residency card, tagged: ‘Kaadi Igbeayo’, which was recently inaugurated by the Ondo State Governor, Dr. Olusegun Mimiko’s administration, as “a constitutional illegality and waste of public funds”.

    He said matters pertaining to census are on the exclusive list of the Federal Government and it is unconstitutional for a state government to carry out the legislative function of the Federal Government.

    Titiloye said: “Census, as defined in the exclusive legislative list under the second schedule of the constitution, includes the establishment and maintenance of machinery for continuous and universal registration of births and deaths in Nigeria.”

    He said Kaadi Igbeayo contains records and information that monitor the birth, health and death of residents.

    Titiloye said: “It is shameful that the Minister of Information, Labaran Maku, abandoned his constitutional responsibilities to participate in the illegal ceremony of an unconstitutional project called Kaadi Igbeayo.

    “The minister knows that the late Chief Obafemi Awolowo, who he compared Mimiko with, never violated the Nigerian Constitution.

    “More worrisome is the silent complicity and collaboration of the Federal Government in this illegality. One would have expected the Attorney-General of the Federation to declare a legal dispute at the Supreme Court against the Ondo State Government.

    “It is unfortunate that Mimiko spent million of precious tax payers’ money on Kaadi Igbeayo, which is not backed up by any law in the state or the constitution.”