Posted by: Prince Ahmed Hassan (TOHA)

BY: PROF. MIKE A. A. OZEKHOME, SAN, CON , OFR, FCIArb, LL.M, Ph.D, LL.D, D.Litt, D.SC, DA, DHL

INTRODUCTION

Last week we commenced this series with some operational definitions, today we shall continue and conclude on the definitions and take a critical look at some cases – their good attributes, deficiencies and worst case scenarios. Read on.  

DEFINITION OF TERMS (CONTINUES).

During the colonial and military regimes, the Executive always attempted to undermine the Judiciary, erode its independence and powers of coercion and have a field day with illegality and impunity.  On those occasions, the Judiciary always stood up courageously to uphold the rule of law.  In Eshugbayi Eleko Vs. Government of Nigeria the Judicial Committee of the Privy Council declared null and void and of no effect whatsoever the deportation of the Oba of Lagos from his domain to an entirely different part of Nigeria on the ground, inter alia, that the Governor had no such power inspite of the fact that the Governor was then vested with both executive and legislative powers. It held:

“No member of the executive can interfere with the liberty or property of a subject except on the condition that he can support the legality of his action before a court of justice.”

In Lakanmi & Another Vs. A-G, Western State, the Supreme Court courageously declared null and void Edict No. 5 of 1967 promulgated by the Western State Government and Decree No, 48 and 45 of 1968 promulgated by the Federal Military Government, on the ground that they were ad hominem legislations.  The legislations dealt with forfeiture of assets.  The Supreme Court held that the 1963 Constitution clearly provided for separation of powers between the Judicial and the Executive and that Decree No. 45 of 1968 was a clear usurpation of the Judicial powers of the courts.  Chief Rotimi Williams had then argued that the Decree which named specific people and confiscated their property were ad hominem and unconstitutional.  The Supreme Court held that the legislations amounted to judicial rather than legislative acts and struck them down.  In reply, the Federal Military Government of General Yakubu Gown promulgated Decree No. 28 of 1970 to undermine the Judiciary.  The Decree was audacious and even brutal in its title:  “The Federal Military Government (Supremacy and Enforcement of Powers Decree No. 28 of 1970.”  The Decree restated the sacredness and unquestionability of any Decree or Edict promulgated or purported to be promulgated by the military government.  But the Adetokunbo Ademola-led Supreme Court at the time was not intimidated.

In Governor of Lagos State Vs. Ojukwu Kayode Eso,JSC emphatically declared that:

“Under the Constitution of the Federal Republic of Nigeria, 1979, the Executive, the Legislature (while it lasts) and the Judiciary are equal partners in the running of a successful government. The powers granted by the constitution to these organs by Section 4 (Legislative Powers), Section 5 (Executive Powers) and Section 6 (Judicial Powers) are classified under an omnibus umbrella known under part II to the Constitution as Powers of the Federal Republic of Nigeria’. The organs wield those powers and one must never exist in sabotage of the other or else there is chaos, Indeed there will be no federal government. I think, for one organ, and more especially the Executive, which holds all the physical powers, to put up itself in sabotage or deliberate contempt of the other is to stage an executive subversion of the constitution it is to uphold. Executive lawlessness tantamount to a deliberate violation of the Constitution.” 

There are many  cases decided during the military era and under democratic environment that underscore the relentless efforts by other arms  of government, especially the Executive to erode  the independence and vibrancy of the Judiciary as a way  of expanding their own frontiers of influence, unquesitonability and impunity.

Since the Executive has considerable (if not total) influence over the wealth of the State and over the appointment of Judges, it continuously seeks to make the Judiciary dependent by starving it of funds and by influencing the enthronement of mediocrity  on the Bench.  Issues in independence of the Judiciary may thus be broadly classified into three, viz, political independence, economic independence and intellectual independence.  Before looking at these issues in detail, we may take a look at the face of Nigeria’s Judiciary so that the issues can simultaneously be matched with the ease.

The Case (The Good, The Bad, The Ugly)

“Since I made the order of the remand of the accused person last Thursday and up till about 10 minuets before I sat this morning, I have been under untold pressure and threat from many quarters urging me to arrive at a particular decision ever before I listen to the accused.  Let me make it that as a Muslin, the teaching of my religion is clear about death being the ultimate.  I am therefore not bothered about any such threat.  I am, however, worried about the untold pressure coming, as it were, from unexpected quarters…  To continue with this case will…..be a breach of the solemn pledge I made when I became a judge (i.e) to administer justice without fear or favour and without ill-will or affection.  In view of the foregoing, I hereby remit this case file to the honourable chief judge for re-assignment to another judge.” 

In this way,  Honourable Justice Mashood Abass of the Oyo State High Court washed his hands off, like Pontius Pilate, of the trial of Otunba Iyiola Omisore and other accused persons standing trial for the murder of Late Chief Bola Ige, SAN (Slain Attorney-general of the Federation).  After the controversial withdrawal of the judge, allegations of undue pressure, bribery, arm-twisting tactics, threats and promises directed against the judge inundated the media. 

Before, the breaking of this unpalatable story, a sordid allegation of bribery had been trailing the Election Tribunal that sat in Akwa Ibom State over the petition of Dr. Imeh Umanah, against the election of the then incumbent governor, Obong Victor Attah.

In Enugu State, matters came to a head when an Election Tribunal had to relocate to Abuja to complete its job after alleging that Enugu State was no longer safe for its honourable members.  These are bad times for the Judiciary!.

But in Anambra State,  the State Chief Judge, Honourable Justice C. J. Okoli proved to be a pride of the Judiciary when he smartly ‘made himself unavailable’ during the July 10, 2003, abduction of the governor of Anambra State,  Dr. Chris Ngige by his political enemies.  The House of Assembly had passed a motion asking the Chief Judge to swear in the Deputy Governor as incumbent governor, but the Chief Judge was not available to carry out the resolution.  By that act, his lordship saved the Judiciary from being enmeshed in the dirty politics of the state, which almost consumed the other arms of government.

More than any other factor, the abuse of ex-parte injunction by some judges has immensely contributed to the erosion of public confidence in the Judiciary under this democratic dispensation.  Most of the ex parte orders granted under controversial circumstances involved situations where the Executive was either the direct beneficiary or had an interest which the public believed (rightly or wrongly) the Judiciary merely ‘co-operated’ to protect.  This perception is a dangerous omen for independence of the Judiciary, because the Justice must not only be done but must be manifestly seen to have been done.

During this democratic dispensation, an Abuja High Court granted an ex parte order stopping the national convention which of the All Nigeria Peoples Party (ANPP) when preparation for the convention had already gulped millions of naira and party members had already converged at the venue in Abuja.  Most Nigerians did not believe that the Judge was not acting in the interest of the rival ruling Peoples Democratic Party (PDP) given the controversial and damaging circumstances under which the order was made.  The resulting outrage cost the judge his job.

Another, Abuja High Court made an order restraining the National Assembly from further deliberating on a bill before it to amend the Independent Corrupt Practices and other Related Offences Act 2000.  The Executive was interested in killing the bill. The order was made in defiance of the trite principle of the doctrine of separation of powers which precludes the courts from assuming jurisdiction over a bill that has not become law.  In articulating the position of the Court of Appeal on the question of Judicial interference in the law making process purportedly under section 4(8) of the 1999 Constitution, Hon. Justice Mamman Nasir, P. said:

“though the courts have been given very wide powers under the subsection, the intention is not to authorize the Judiciary to interfere with the legitimate exercise of the powers of the legislature or the procedure to be followed in such exercise at power given to the courts comes into action after the legislature has enacted the law…”.

A similar controversy trailed the ex parte order given by the same Abuja Federal High Court which directed the Independent National Electoral Commission (INEC) to issue a certificate of return to Chief Adolphus Wabara (PDP) as Senator representing the Abia South Senatorial Zone.  INEC complied (apparently reluctantly) and Wabara became the president of the senate the next day.   The source of the controversy was that INEC had earlier declared Elder Dan Imo (ANPP) as the winner of the seat.  As Ogbham-Emeka, a Counsel in Mike Ozekhome’s Chambers observed about the controversy in ThisDay Law,

“The question of how the Abuja Federal High Court assumed jurisdiction over the matter and how the issue became one suitable for an ex parte order raked up a lot of dust. When the dust subsided not a few people concluded that it was the court and not the electorate that gave Senator Wabara the Abia South Senatorial ‘mandate’.  But that was not to be the end of the regime of such demonstrable judicial anarchy that force litigants to choose which court order to obey and which not to obey, a situation that spells doom for a regime of law and order”. (To be continued).

Thought for the Week

“A functioning, robust democracy requires a healthy, educated, participatory followership and an educated, morally grounded leadership”. (Chinua Achebe). 

LAST LINE

God bless my numerous global readers for always keeping faith with the Sunday Sermon on the Mount of the Nigerian Project, by humble me, Prof Mike Ozekhome, SAN, CON, OFR, FCIArb., LL.M, Ph.D, LL.D, D.Litt, D.Sc. kindly, come with me to next week’s exciting dissertation.

The post THE INDEPENDENCE OF THE JUDICIARY IN A DEMOCRATIC DISPENSATION (PART 2) appeared first on Mike Ozekhome’s Chambers.

Posted by: Prince Ahmed Hassan (TOHA)

BY: PROF. MIKE A. A. OZEKHOME, SAN, CON , OFR, FCIArb, LL.M, Ph.D, LL.D, D.Litt, D.SC, DA, DHL

INTRODUCTION

We commenced this series last week with a detailed introduction of the subject matter, later we took a look at the history of oil exploration in Nigeria, where oil theft is carried out in Nigeria and those involved in oil theft in Nigeria. Today, we shall continue to x-ray the involvement of the military and other security forces, resident oil companies and the local populace. We shall also try to find out why and how oil theft is being carried out and later the cost of oil theft in Nigeria. Please read on.

MILITARY AND OTHER SECURITY FORCES (CONTINUES)

MILITANT ORGANIZATIONS

According to former Nigerian president Olusegun Obasanjo, militant organizations have often been used by “political godfathers” in the oil sector regions to cause disturbances in regional stability. These ales the whole process to enjoy less supervision by the government. This is disturbing, and considering the poverty rate of citizens according to the World Bank Index, joining any of these groups would mean a breakthrough and great deal as the reward is juicy. These groups primarily serve as armed escorts for the property of the political elite or function as the sabotage mechanism that is necessary for cold-tapping operations.

Due to the large success of the Niger Delta militant operations, Nigeria’s annual output of crude oil decreased from its potential capacity of 2.2 million barrels per day to 1.4. As a consequence of the high influx of oil pipeline sabotage in the Niger Delta, oil spills “devastated mangroves, contaminated soil and groundwater, destroyed the fish habitat, and posed a serious threat to public health.” Buhari failed in his fight against corruption, it was a selective fight.

RESIDENT OIL COMPANIES

Resident oil companies have also been fully involved in oil theft. The means of oil theft – hot and cold tapping – being very complex and dangerous, demands expert knowledge to implement same successfully. Resident oil authorities from multinational oil corporation stationed in oil sectors regions of Nigeria play key roles in facilitating this theft.  In addition to providing technical expertise and managing oil withdrawal operations, oil experts offer inside knowledge on the schedule of corporate inspection operations on the pipelines. This is critical for ensuring that illegal secondary pipelines stay intact and that the location of fueling operations are not revealed to Nigerian security forces and multinational corporate authorities.

THE LOCAL POPULACE

It is pitiable and regrettable that the local populace that surrounds the variety of oil pipelines throughout Nigeria often facilitates the local creation and sale of illegally refined oil products as means of alleviating their impoverished condition. Same unscrupulous citizens make use of small-scale oil tapping to collect crude products. Their methods of extraction have contributed largely to pollution in Nigeria. This is due to their lack of technical expertise. In addition to oil pipeline leakages from small-scale tapping, the JTF’s anti-refinery and illegal oil market operations have led to uncontrolled destruction of illegal crude oil reserves. Due to the simple construction of bush refineries and their placement in isolated locations, all efforts by the JTF to mitigate the illegal refinement of oil products have largely been futile. In September 2018, the unemployment rate in Nigeria had reached 23%. 

Consequently, in tandem with the high unemployment rate, the pollution of waterways and the contamination of local fish populations forced many young Nigerians to partake in oil theft and illegal refinery activities.

 WHY DO THEY STEAL NIGERIA BLIND?

The why of oil theft is so elementary that it can be excused for – why do people steal? The answer is obvious. Theft generally may be as a result of lust, greed, avarice, wickedness, etc. People engage in stealing for diverse reasons. It may even be retaliation or set up. But as regards oil theft, a theft that involves so much expenses to embark on, a theft that involves the conglomeration of human and mechanical know-how, why would a wealthy man invest in oil theft? The reasons may not be farfetched. It may be for increase of wealth; control of economic power; societal recognition; etc. But have you ever thought that, it may be for “political power”? Some of the moguls involve in oil theft do that for political power and protection; and to get international illegal gains. Religious and ethnic sentiments may also be a reason for oil theft; but this is a different and more advanced rationale. 

HOW IS THE OIL THEFT CARRIED OUT?

There are different means and methods of oil theft. There are both simple and sophisticated means, but for purposes of this discourse, we shall consider hot tapping, cold tapping and terminal and transportation theft. 

Hot-tapping and cold-tapping are extremely sophisticated methods of oil theft and are primarily used in large-scale operations during the crude oil stage. Terminal and vehicle transportation theft involves the re-appropriation of both crude and refined oil products from storage facilities during the process of export transportation. 

According to Mr. Mele Kyari, the Group Managing Director (GMD) of NNPCL, the illegal pipeline taps are so sophisticated now that in some cases, they run for 3-4 kilometers and would have involved cranes, and at least 40 workers to build. In fact, to your dismay, an illegal line alone which measures less than 200km, had not less than 295 illegal connections. He also revealed that the rate of theft forced the shutdown of two production fields. 

Let’s proceed with the discourse. 

HOT – TAPPING

Hot – tapping involved the attachment of an illegal secondary pipeline belonging to oil theft criminals to a high-pressure primary pipeline belonging to a multinational corporation. Thereafter, oil is diverted from the pipeline into to mobile oil bunkering facilities that are attached to the secondary pipeline. This process is normally difficult to discover because, the gradual withdrawal of small amounts of the oil normalizes the high-pressure from the primary pipeline. The process although gradual, is capable of withdrawing oil to fill thousands of metric tons in few hours. The process is very complex and dangerous, and has led to many disastrous events. 

COLD TAPPING

Here, a portion of a pipeline is blown up, then a secondary pipeline is attached to the shut-down primary pipeline. It is also difficult to discover this kind of tapping, because, after the primary pipeline is repaired, the flow and pressure still remains same. This process is less dangerous. 

TERMINAL AND VIHECULAR TRANSPORTION THEFT

Oil theft is common in the production states. However, it is easier and more rampant at port terminals. Transportation of crude oil at terminals awaiting shipments to international locations are met with serious diversion. During this process, siphoning is facilitated by the corporation of administrators and security agencies.  There are reserved into criminal fuel trucks, and then, the trucks are used to transport illegal oil products for sales in neighboring African countries where prices are higher with or without subsidy. The lack of oil meters at the source of production and physical presence only at export facilities by oil corporations, is a lacuna, and thus disrupts the oversights in managing and accounting for the initial value of oil produce an – initio. 

THE HUGE COST OF OIL THEFT IN NIGERIA.

In the third quarter of 2022, operators of the Trans Niger pipeline and the Forcados export terminal closed their facilities for repairs. The closures triggered a sharp drop in Nigeria’s crude oil output from 1.1 million barrels per day (b/d) in the second quarter to below 1 million b/d in the third quarter. Nigeria’s production recovered by the beginning of 2023; but an oil workers’ strike disrupted production again in April, 2023. Crude oil production in Nigeria fell to slightly more than 1 million b/d in April of this year, dropping below Angola’s production, which was estimated at 1.1 million b/d that month.

Nigeria lost about 13.21 million barrels of crude oil with an estimated worth of N603.64bn between January and August this year, an analysis of the monthly reports of the country’s crude oil and condensate production showed.

Against the 1.69 million barrels per day oil production benchmark in the 2023 budget, Nigeria recorded an output deficit of about 23.7 million barrels of crude oil production in January and February 2023, valued at about N920 billion at the official exchange rate of N460/$; and about # 1.840 Trillion at the black market rate.

According to an analysis of the data from the Nigerian Upstream Petroleum Regulatory Commission (NUPRC) in August, Nigeria’s total oil production shortfall hit 94.5 million barrels in the first half of 2023. When converted to money, the output slump would be an estimated gross revenue loss of $7.1 billion at an average oil price of $75 per barrel during the period between January to June this year.

Nigeria is at the moment, desperately in need of foreign exchange as currently reflected in the weakening value of the naira to the dollar and inability of foreign investors, especially airlines to repatriate funds to their countries of origin.

Few weeks ago, OPEC slashed Nigeria’s production baseline to 1.38 million barrels per day for 2024, due to the prolonged inability of the country to consistently meet its quota for the commodity. And, Nigeria gets over 90 per cent of its foreign exchange earnings from the export of the commodity. (To be continued).

THOUGHT FOR THE WEEK

“A century ago, petroleum – what we call oil – was just an obscure commodity; today it is almost as vital to human existence as water”. (James Buchan).

LAST LINE

God bless my numerous global readers for always keeping faith with the Sunday Sermon on the Mount of the Nigerian Project, by humble me, Prof Mike Ozekhome, SAN, CON, OFR, FCIArb., LL.M, Ph.D, LL.D, D.Litt, D.Sc. kindly, come with me to next week’s exciting dissertation.

The post HOW NIGERIA IS BLEDDING FROM OIL THEFT (Part 2) appeared first on Mike Ozekhome’s Chambers.

Posted by: Prince Ahmed Hassan (TOHA)

BY: PROF MIKE OZEKHOME SAN, CON, OFR, FCIArb, LL.M, Ph.D., LL.D., D.Litt, D.Sc.

INTRODUCTION

The nation has been agog with news of the ongoing face-off between the EFCC and the immediate past Governor of Kogi State, Alhaji Yahaya Bello and the others over the (EFCC)’s attempt to arrest Bello in connection with alleged official corruption involving the sum of 80.2 billion naira which he allegedly misappropriated while in office for eight years as Kogi State Governor.

Accusations and counter-accusations have raged back and forth between both camps (with not a few officious by-standers proffering gratuitous, ill-informed advice in the guise of opinions). As usual, the truth is always the first casualty. In this case, it is worsened by the fact that the matter is the subject of on-going litigation before at least two different courts: a High Court in the former Governor’s home State of Kogi and the Federal High Court in Abuja. The situation has been compounded by the order of injunction granted by a Kogi State High Court restraining the Commission from arresting or attempting to arrest the former Governor. The alleged breach of the order so irked the judge who issued it that he apparently had no option but to cite the EFCC boss for contempt. That order has been stayed by the Court of Appeal. Because these proceedings are ongoing, no more will be said on them.

Let me stress here that I am neither on the side of Yahaya Bello, nor that of the EFCC, or the Government of Kogi State whose funds are allegedly at the heart of the dispute. I will not cry more than the bereaved. My intervention here is limited to the legal ramifications and propriety of the steps taken so far by both sides of the divide.

BACKGROUND

Before Bello’s Abuja house was raided in a gestapo-like manner on April 17, 2024, Bello had, believing that his fundamental human rights were being threatened, approached a Kogi State High Court seeking an interim restraining order against the EFCC (Commission) pending the determination of a substantive suit before the court.

Justice Isa Abdullahi (presiding), who was satisfied with the grounds upon which the relief was sought, on February 9, 2024, gave an interim restraining order against the EFCC from taking any action against Bello, pending the determination of the substantive matter.

The Commission, dissatisfied, approached the Court of Appeal, Abuja, on March 11, 2024, requesting the appellate court to set aside the interim restraining order. It argued that the lower court lacked the requisite jurisdiction to assist Bello escape his deserved justice. It also argued that Bello could not stop the Commission from carrying out its statutory duties, nor use the lower court to escape its invitation, investigation and possible prosecution as the court’s order directed.

The Appeal Court adjourned hearing to April 22, 2024, while refusing to hear EFCC’s application for a stay of the order of interim injunction.  In further affirming its earlier interim orders, the Kogi State High Court on April 17, 2024, delivered judgment in the substantive suit and directed the Commission to first seek the leave of the Court of Appeal before taking further steps against Bello. It granted some injunctive reliefs against the Commission “from continuing to harass, threaten to arrest or detain Bello”. The court directed the Commission to file a charge against Bello in an appropriate court if it had some reason to do so. The Commission later obtained a warrant of arrest against Bello from the Federal High Court presided over by Justice Emeka Nwite. On April 22, the anti-graft agency filed a notice of withdrawal of its appeal, predicating it on the ground that events had overtaken the appeal; while admitting that the appeal was filed out of time.

Bello’s team promptly challenged the arrest warrant by the Federal High Court and Justice Emeka Nwite has adjourned for his ruling on the propriety of his warrant of arrest against Bello.

WHEN AND HOW TO SUMMON A SUSPECT FOR INVESTIGATION BY LAW ENFORCEMENT AGENCIES

I condemn any brute and sensational arrest of a suspect such as Bello. It does not matter the station of life of such suspect, whether high or low. Hooded DSS operatives once did it to some Justices of the Supreme Court and other Judges on 8^th October, 2016, when they viciously and savagely broke into their homes in the wee hours of the morning. I had condemned it in very strong words. (See https://www.bellanaija.com/2016/10/falana-ozekhome-melaye-react-to-arrest-of-judges-by-dss/) (October 10, 2016). Some of the victims like Justice Sylvester Ngwuta, JSC (of blessed memory) never recovered from the shock. He later died. Others took early premature retirement. Was the Commission therefore right in attempting to arrest Bello in the manner it did as some commentators have approved in their writeups? I think not. The relevant provisions of the law such as Sections 8(1) of the Anti-Torture Act, 2017; Section 6 of the Administration of Criminal Justice Act (ACJA) 2015 (applicable in Abuja, the FCT); and Section 35(2)&(3) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, the sum total of which enjoin the fair and humane treatment of a suspect whether during his /her arrest, investigation, detention pending trial and arraignment. Was a bench warrant necessary against a suspect on whom charges had not been served as in the Bello scenario? I think not. Let us look at some decided cases on this.

In USANI V. DUKE [2006] 17 NWLR (Pt.1009)610 the Court of Appeal held thus:

“A bench warrant is a discretionary power of a court invoked to secure the attendance as in this case of an unwilling witness under the threat of contempt of court to give evidence on any area of a suit within his knowledge. It is not a discretion which is exercised as a matter of course. The court has to be satisfied that there is absolute necessity to procure the appearance of the witness in court. The lower tribunal based its refusal to issue bench warrant on non-compliance with section 229(2) of the Evidence Act.” Per ADEKEYE, J.C.A. (P. 38, paras. B-E)”.

In APUGO V. FRN (2017) LPELR-41643 CA, the Court of Appeal eruditely held that:

“Section 382 (4) and (5) of the ACJA provides for how to serve a Charge and notice of trial on a Defendant, who is not in custody, … In this case, the Respondent had filed a motion exparte under section 382(5) of the ACJA 2015 to serve Appellant by substituted means. That motion was not argued, but the trial court jumped the gun and ordered for the bench warrant to arrest the Appellant: and when it found out that that was wrong, it suspended the implementation of the bench warrant (instead of setting it aside) the trial court yet still ordered the Appellant to appear on the next adjourned date to answer to the Charge against him, pursuant to section 87 of the ACJA 2015. As earlier discussed and held above, I do not think the trial court had the vires to make such order, in the circumstances as I think it went beyond its role as impartial adjudicator, to that of the Prosecutor or Police or EFCC to forcefully produce the Accused person, without serving him with any charge or notice of trial. See NWADIKE v. State (2015) LPELR- 24550 (CA), Ededet v. State (2008) 14 NWLR (Pt 1106) 52. I do not think section 87 of the ACJA 2015, can apply without recourse to section 382 of the same Act which requires a Defendant to be served personally or by substituted means with the charge or information and notice of trial.  I believe it is upon compliance with section 382 (3) (4) and (5) of the Act where there is a pending charge, that the trial court can have the powers to apply the section 87 of the Act which says: “ A court has authority to compel the attendance before it of a suspect who is within the jurisdiction and is charged with an offence committed within the state Federal or the Federal Capital Territory, Abuja, as the case may be or which according to law may be dealt as if the offence had been committed within jurisdiction and to deal with the suspect according to law”. Per MBABA J.C.A  J.C.A (Pp. 46-48, paras. F-F)’’.

See also sections 113, 131, 394, 398 and 399 of the Administration of Criminal Justice Act 2015.

These domestic laws are reinforced by a regional (in fact, continental) statute – the African Charter on Human and Peoples Rights – Article 7 of which obliges the State (and all other persons) to respect the rights of every individual to have his (or her) cause heard. This right encompasses the following, inter alia:

• The right to appeal to competent national organs against violating his fundamental rights;
• The right to be presumed innocent until proven guilty by a competent tribunal;
• The right to defence including by Counsel of one’s choice;
• The right to be tried within a reasonable time by an impartial court or tribunal.

The importance of this statute is often overlooked by many Nigerians because, apart from the Constitution, it is superior to virtually every local or municipal law – including the EFCC (Establishment) Act itself. See ABACHA VS FAWEHINMI (2000) 6 NWLR part 660, pg 228, where the Supreme Court held that the Charter possesses “greater vigour and strength than any other domestic statute… (accordingly if there is a conflict between it and another statute its provisions will prevail over those of the other Statute”)

It is in this context that I believe the Commission’s tactics in attempting to arrest Bello ought to be situated. While no one quarrels with the Commission’s full mandate to tackle economic crimes, the way and manner in which it does so must however, not portray any impunity or suggest that it is above the law. After all, the Commission’s motto is “No one is above the Law”. To that extent, the fact that the person at the centre of the present controversy is a former Governor is irrelevant: it merely hugs the headlines for that reason. Afterall, he has since lost his immunity under section 308 of the 1999 Constitution, upon vacating office. However, once a person has been charged to court as Bello has, he becomes the subject of the court which becomes seized of the matter. His availability in court is thereafter controlled by the trial court, and not another through a bench warrant.

Many a time, it is argued that the court cannot restrain government agencies from arresting, investigating or prosecuting suspects. This is far from the truth as it depends on the facts of each case. For example, the Court of Appeal in OKEKE v. IGP & Ors (2022) LPELR-58476(CA) 1 at Pp. 9 paras. A, Per NWOSU-IHEME, J.C.A (as she then was), relied on a decision of the same Court to hold that the Police can be restrained from the improper use of its powers. In the unreported case of LUNA V. COMMISSIONER OF POLICE RIVER STATE POLICE COMMAND in Appeal No CA/PH/216/2004, the Port-Harcourt Division of the intermediate court held:

“… Notwithstanding the power of the Police as spelt out in Sections 4 and 24 of the Police Act, where this Power is improperly used, the Court can stop the use of the power for that improper purpose, as that would no longer be covered by Section 35(1) (c) of the 1999 Constitution. In other words, an order restraining the Police from arresting on some particular occasion or for some particular improper purpose may be made by the Court.”

THE EVILS OF MEDIA TRIAL

The Yahaya Bello case evinces a clear case of media trial which should never be. The notion “Media Trial” or “Trial by Media” got its name in the United States of America during the period of 19th Century and became familiar with the Indian legal system in the famous, case of K.M Nanavati v. State of Maharashtra AIR 1962 SC 605.

I have, on my part, always kicked against media trial, for it presumes a person guilty even before his trial in open court. At the first National Anti-Corruption Stakeholders’ Summit held in 2017 with the theme, “Building national anti-corruption consensus in a multi-agency Environment”, which was organised by the Commission at the EFCC Academy, Karu, Abuja, I made the following remarks:

“…. All my life that is what I have done. I take it very seriously when we talk about the issue of rule of law. I do not believe in media trial. For example, a case is being investigated in EFCC, the suspect is being interrogated, tomorrow it is in a particular newspaper as to the statement made by that suspect. That suspect may never be tried. Even if he is arraigned and tried, he may never be found guilty but you have destroyed his image, his reputation. We should run away from that, it is not good. There is the need in this anti-corruption war to make an example; just one example with one person in government. I am aware of many, many petitions against people in this government”. See Nigerian Tribune edition of 28^th March, 2017. (https://tribuneonlineng.com/stop-media-trial-suspects-ozekhome-tells-efcc/).

I had also in 2017, written to the Commission and presented a paper at CACOL Roundtable, titled “The A-Z and 24 “Dos” and “Don’ts” of how to fight corruption”. (See Daily Times of 24th April, 2017 – https//issuu.com/dailytimes. ng/docs/dtn-24-04-17/19). This paper is still relevant today, as it represents my contribution to the fight against corruption which I personally believe in. But, such war must be within the confines of the law. At the time of my lecture, the Commission under Ibrahim Magu had not made any attempt to try government functionaries; and I challenged it to do so. I do not know, whether it was my wakeup call that made the Commission to finally start charging people in government, especially Governors and Ministers, to court. Or, do you? I had also clashed with the former Chairman, Magu, on this sore issue on 19^th December, 2017, at the Federal High Court, Abuja, at its end of year event. (See: https://www.vanguardngr.com/2017/12/anti-graft-war-magu-ozekhome-clash-fhc-end-year-event/)

THE DANGER INHERENT IN MEDIA TRIAL

Media trial which has become the order of the day in Nigeria is simply the act of using media coverage to vilify and portray a suspect or an accused person as a criminal, even without trial. In the context of Nigerian jurisprudence, a trial is an avenue to challenge the innocence of an accused person. A Media trial is an improper use of the media to tarnish the image of an accused person before, during or after a trial. It is used to dampen the resilient spirit of an accused person. The Commission used this craft greatly, especially during the tenure of Ibrahim Magu; and it greatly chipped away some nobility in its patriotic war against corruption.

The public applauds media trial. The downtrodden guffaws when the rich also cry. With this, there are more media convictions than actual convictions in the courtroom. Unfortunately, Yahaya Bello, has become the latest victim of  media trial. If he is eventually acquitted, people will attribute his non-conviction to “a complicit judiciary”, (the whipping orphan).

Bello’s present ordeal may have undoubtedly brought some people immense joy. This submission has been tacitly corroborated by the Commission’s Chairman, very hard working and dedicated Mr Olanipekun Olukoyede, who stated, in a now-viral video, that the former Governor of Kogi State declined to come to the agency’s office because he complained that a female Senator had allegedly gathered journalists together to humiliate him anytime he appeared in the office of the agency for interrogation. Obviously, Bello was scared of media trial; so he avoided it. The evils of media trial are galore.

Media trials, especially in places like Nigeria, can be highly dangerous and prejudicial to a fair trial for several reasons:

1. Presumption of Innocence: Under the provisions of Section 36(5) of the 1999 Constitution, every accused person is presumed innocent until he is found guilty. Media trials often disregard the principle of “innocent until proven guilty.” When suspects are portrayed as guilty before they have had a fair trial, it can prejudice public opinion and undermine the legal process. The Muhammadu Buhari government specialised in this Goebel’s propaganda style under its “Name-and-shame” mantra. Such removes the Anglo-Saxon accusatorial system we operate and whimsically substitutes it with the French inquisitorial system.

By the provisions of section 36(5) of the 1999 Constitution, every person who is charged with a criminal offence shall be presumed to be innocent until proven guilty. This is unequivocally the position of the law, and has not changed. Article 7(1) (b) of the African Charter on Human and Peoples’ Rights 1981, also guarantees the presumption of innocence when it states as follows: every individual shall have the right to fair-hearing, that is; to have his cause heard including a right to an appeal, to be presumed innocent until proven guilty by a competent court or tribunal, and also the right to defence, including the right to be defended by Counsel of his choice. These are provisions that guide the trial of any person suspected to have committed a crime. It further extends to the right to be tried within a reasonable time by an impartial court or tribunal Thus, the presumption of innocence is the legal principle in criminal cases that one is considered innocent until proven guilty. This therefore means that until a judicial pronouncement is made, a suspect or defendant as the case may be should be treated with dignity as an innocent citizen. Anything to contrary would amount to a breach of the fundamental rights of the individual. See the cases of Tosin .v. State (2023) LPELR-59635 (CA); Onyeka .v. State (2023) LPELR-60520 (CA) and OLALERE .V. STATE (2022) LPELR-58103 (CA).

• Mob Mentality: Inflamed by sensationalized media coverage, the public can form strong opinions and even resort to mob justice. This can lead to violence, whether against the accused or others associated with them.

• Interference with Legal Proceedings: Judges do not live on the island, Venus, Moon, Neptune or Mars. They live on earth and interact with members of the society. Media attention can influence judges, potentially leading to unfair trials. It can be difficult for a defendant to receive a fair trial when public opinion has been heavily influenced against him by biased media coverage. In the case of Rajendra Jawanmal Gandhi v. State of Maharashtra, (1997) 8 SCC 386, the Supreme Court of India noted that a trial by press, electronic media, or public agitation is the exact opposite of the rule of law. It held further that Judges should protect themselves from such pressure and scrupulously adhere to the rule of law since failure to do so could result in a miscarriage of justice. Parties are entitled by the Constitution to a fair trial in a court of law by an unbiased tribunal that is not swayed by popular culture or media coverage.

• Violation of Privacy and Dignity: Suspects, especially those who are later found innocent, can suffer irreversible and irreparable damage to their reputation, mental health, and livelihood due to intrusive media coverage. See section 37 of the 1999 Constitution.

• Impact on Investigation: Media trials can jeopardize investigations by prematurely revealing sensitive information or influencing potential witnesses or suspects.

• Undermining Trust in the Justice System: When the public perceives that justice is being served through media sensationalism rather than through fair legal processes, it can erode public confidence and trust in the judiciary and law enforcement agencies. This is the situation our judiciary has found itself. When a wealthy man who is accused of looting the state treasury is acquitted of corruption-related charges, some members of the public readily accuse the judiciary of complicity. Because some Nigerians do not trust the judiciary, they believe, courtesy of media trial, that the judiciary is a tool of the ruling class to consolidate or legitimize their hold on power and the society.

• Political Manipulation: In some cases, media trials may be used as a tool by powerful interests to manipulate public opinion, discredit political opponents, or distract from other issues. The ongoing trial of the former CBN Governor, Mr. Godwin Emefiele, is a perfect example. Virtually all the bad economic policies of the President Buhari government have been attributed to the leadership of the apex bank under Emefiele and the Bank Managing Directors. Was this really the case? Was Buhari not in charge?

There are many instances when suspects who had been subjected to needless media trial were later vindicated by courts of law. Let us see some examples:

• The siege and break-in through the roof on the residence, ‘abduction’ and subsequent arrest and arraignment by the EFCC in a clearly orchestrated media trial of former Governor Rochas Okorocha of Imo State. He was later discharged and acquitted.
• The trial and subsequent discharge and acquittal, only last month, by the Federal High Court sitting in Lagos, of the former Director-General of NIMASA, Mr Patrick Akpobolokemi, after over eight years on trumped up charges of conspiracy, stealing and fraudulent conversion involving the sum of ₦8.5billion. The court, coram, Justice Ayokunle Faji, upheld his Counsel’s no-case submission that the Commission had failed to make a prima facie case requiring him to enter his defence in respect of four out of six charges laid against him by the Commission. This was after eight years of gruesome trial and media hype, with Akpobolokemi, being physically dragged on the ground in one instance.

The discharge and acquittal earlier this year of the erstwhile Attorney-General of the Federation and Minister of Justice under the Administration of the former President Goodluck Jonathan, Mr Mohammed Bello Adoke and some companies by the Federal High Court, Abuja (Ekwo, J) and the High Court of the FCT (Kutigi J), on charges of money laundering and abuse of office after  over four years of hyped media trial which the latter court strongly condemned and for which it excoriated the Commission for the slip-shod manner in which it undertook what, to all intents and purposes, was a persecution rather than precaution. The investigation into the alleged offences was anything but diligent, forcing the Commission’s own Counsel (to his credit) to throw in the towel and admit that he could not, in all honesty, support their continuing trial. I had gotten vacated and set aside the Bench warrant earlier issued against Adoke by Danlami Zama Senchi (now of the Court of Appeal). I was the one who also argued Adoke’s bail applications before Justices Inyang Ekwo and Idris Legbo Kutigi.

Also apposite are the nasty experiences of former Senator Dino Melaye whose cases I also handled; and that of the Supreme Court Justices way back in 2016 (even though the latter was perpetrated by a sister agency, the DSS) .

What about late High Chief Aleogho Raymond Dokpesi? He was later discharged on a no case submission after over eight years of horrid trial in which I secured his bail in 2015!  The cases of Col. Sambo Dasuki, El Zakzaky and Elder Godsday Orube are well too known to enlist elucidation here.

The Commission surely had full knowledge of the ex-parte order made by the Kogi State High Court which had restrained the Commission from arresting Yahaya Bello. Yet, it laid a siege on Bello’s Abuja residence. The entire drama (which played out in the full glare of television cameras) was nothing short of disdain for the rule of law and the sanctity of court orders. It is trite law that, until a valid and duly issued court order is set aside either by the same or another court of superior or co-ordinate jurisdiction, it must be obeyed and complied with to the hilt.

The proper remedy open to the Commission which disagreed with the order was to challenge it and seek its reversal at the appellate court as it later did, and certainly not to flout or disobey it under any disguise. Needless to say that disobedience to court orders is a feature of self-help only in a society where anything goes; where life is poor, solitary, nasty, brutish and short, to quote the English Philosopher, Thomas John Hobbes. We must never allow Nigeria to degenerate to such a nadir state where government institutions disobey court orders with impunity. That is a ready recipe for organized disenchantment.

Indeed, so important is obedience of court order that it is given constitutional imprimatur in Section 287 of the 1999 Constitution.

In this regard, in FCDA V KORIPAMO-AGARY (2010) LPELR-4148 (CA), Mary Ukaego Peter-Odili, J.C.A (as he then was) held that:

“The Court frowns at disobedience of its orders; particularly by the executive branch of government and has used rather harsh language such as ‘executive lawlessness’, in describing such acts of disobedience. On the application of an aggrieved party, the Court has in appropriate cases, not hesitated to exercise its coercive power to set aside such acts done in disobedience of its order and restore the parties to the position they were before such disobedience. The rationale for this course of action by the Court is to ensure the enthronement of the rule of law rather than acquiesce in resorting to self-help by a party. The Court also has the power of sequestration and committal against persons disobeying its orders. It is an overgeneralization and therefore wrong to say that an act done in disobedience of a Court order is an illegality”.

See also ALL PROGRESSIVE CONGRESS & 2 ORS V HON DANLADI IDRIS KARFI & 2 ORS [2018] 6 NWLR (Pt 1616) 479, 493 SC and EZEKIEL-HART V EZEKIEL-HART [1990] NWLR (pt 126) 276. where the Supreme Court upheld the same principle.

By the same token, it is also settled that once the court is seised of a matter, it becomes dominus litis (master of the proceedings) and no party is allowed to take any step that will either overreach the court or the other party or present the court with a situation of fait accompli or complete helplessness in which whatever orders it makes might either be rendered nugatory or unenforceable. Such will be an affront on the court. See Ojukwu v. Governor of Lagos State (1986) 3NWLR (Pt 26) 39.

CONCLUSION

The judgment delivered by the High Court of Kogi State on April 17, 2024, finally vindicated Yahaya Bello on this issue as the court pointedly held:

“Thus, the serial action of the Respondent, dating back to 2021, right up to 2024, targeted against the applicant, has corroded their legitimate statutory duties of investigation and prosecution of financial crimes. These collective infractions on the rights of the applicant border on infringement of his fundamental right from discrimination”.

Central to the court’s rebuke is the condemnation of the anti-graft agency’s reliance on media sensationalism, characterized as a form of trial by public opinion. The court firmly asserted the principle that the agency’s role is not to act as both prosecutor and Judge simultaneously; but rather to present evidence within the confines of due procedure. This critique underscores the imperative of upholding the rule of law and granting individuals, including Bello, their rightful day in court devoid of extrajudicial influences.

Beyond the specifics of Bello’s case, there is need for a paradigm shift whereby agencies such as the EFCC, Police, ICPC, DSS et al, adopt a more public-friendly stance akin to their counterparts in advanced jurisdictions such as the United States, the United Kingdom and many European states. The importance of viewing law enforcement as a Service rather than as a Force, underscores the necessity of cultivating public trust and confidence through transparent, law-abiding practices. I hereby emphasize and advocate (as I have always done), strong institutions; not strong men.

We must, therefore, strike a balance between reporting matters that are of public interest and respect for the dignity of persons. In India, the Law Commission in its 200th report, “Trial by Media: Free Speech versus Fair Trial under Criminal Procedure (Amendments to the Contempt of Courts Act, 1971)”, has recommended a law to debar the media from reporting anything prejudicial to the rights of the accused in criminal cases, from the time of arrest to investigation and trial.

No individual, regardless of his position or authority, is above the law. There is no exception in the sense that even those who are protected from prosecution by the immunity clause in section 308 of the 1999 Constitution of the Federal Republic of Nigeria, as amended, will after vacating the office be answerable like all other citizens and subject themselves willingly or unwillingly to the law. By holding both governmental and non-governmental actors accountable to the law, a commitment to fostering a culture of accountability and respect for individual rights is built and maintained.

Be that as it may, the laid down procedures must be followed accordingly. Where such laid down procedures are not tenaciously complied with, it will become an agency of government dictating its own rules, procedures and modus operandi. This is only typical of an autocratic, despotic and dictatorial government which we do not operate. It is in the light of this that the Commission and all other agencies established by laws must ensure that they conduct their operations within the ambit of the laws that established them. The concept of rule of law entails that all actions of government must be carried out as spelt out by the law without any form of self-help. In an ideal society where everyone, the leaders, the followers and the law enforcement agencies follow the law, a pattern develops where there can be a reasonable expectation of what will occur in any given situation. And ultimately, this provides security and safety as people do not need to panic out of uncertainty or feel worried about any situation since what will happen is readily  predictable.

In the light of these considerations, there is need for a reevaluation of law enforcement practices and a renewed dedication to upholding the rule of law. There must be a balance of the imperatives of justice with the protection of individual rights, particularly in the face of media scrutiny and public pressure.

For now, citizen Yahaya Bello wears the toga of victimhood and not of aggression. He should be allowed to have his fair day in court without the present needless ruckus and brouhaha.

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Posted by: Prince Ahmed Hassan (TOHA)

By: Prof Mike Ozekhome, SAN, CON, OFR, FCIArb, Ph.D, LL.D, D.Litt, D.Sc.

A WRITE UP ALLEDELY made me, Mike Ozekhome SAN
THIS IS A LIE FROM THE PIT OF HELL.

My attention has just been drawn to the above disturbing and shocking piece of trash allegedly authored by me. I DID NOT,NEVER DID, NOR WILL I EVER CONTEMPLATE SPEWING OUT SUCH ODIOUS INANITY AND BANAL STATEMENT DEVOID OF COMMON SENSE AND REASONING The above writeup ascribed to me is a LIE FROM the PIT OF HELL. How can I, Matawalle’s friend and lawyer of many years,utter such nonsense? How could I be linked with a statement suggesting meddling into a matter that is subjudice; or media trial, ad homine application of laws; or conviction before trial,when the whole world knows me for preaching and writing human rights, due process democracy and good governance for over four decades? I hereby WHOLLY DENOUNCE the writeup. I also hereby humbly urge MEMBERS OF THE PUBLIC TO IGNORE the statement and its banner headline,all of which are utterly false,baseless, unfounded and which are simply idiotic. They constitue nothing but hallucinations from the fertile imagination of the writer. Such statements are spewed by faceless idle internet crawlers that nobel laureate, Prof Wole Soyinka, once historically described as “millipedes of the internet”.
It is apposite to note here that the issue of me being the author can not even arise because the faceless author still quoted an alleged earlier statement purportedly made by me of I defeating the EFCC 11 times.I couldn’t have been authoring a statement, yet quoting myself, saying, “No wonder the renowned senior advocate, Mike Ozekhome described the anti graft agency with the following statement.EFCC is a paper tiger, i have taken them to court eleven times and defeated them – Mike Ozekhome SAN”. Please, ignore the statement and consign it to the trashcan of history where it rightly belongs.

The post Why Has EFCC Not Arrested Yari and Mattawale Bello Despite Similar Court Order,? By Mike Ozekhome SAN appeared first on Mike Ozekhome’s Chambers.

Posted by: Prince Ahmed Hassan (TOHA)

BY: PROF. MIKE OZEKHOME, SAN, CON, OFR, FCIArb, LL.M, Ph.D, LL.D, D.LITT, D.Sc.

This title of Michael Mann movie (released in 1992) and an earlier novel of the same name (released in 1826) is most apposite for our celebrant. As the title suggests, Chief Ayo Adebanjo is a member of the fast dwindling tribe of heroes. One of the very few last men standing. Yes, of a fast-depleting breed of nationalists and ideologues, committed and principled politicians who refuse to compromise or bend in tune with the latest fad – or the dictates of personal, parochial, ethnic or self-interest.

His likes are, indeed, very hard to find in today’s Nigeria – a country of never ending oddities. Little wonder the encomiums which have been poured (and continue to be showered) on him on the occasion of his 96th birthday a few days ago – on the 10th of April, to be precise. That makes him a nonagenarian. Accordingly, this is as good an occasion as any to take stock and reflect on a life less ordinary: the remarkable times of a man of the world, who both defined and was defined by it. Here is a man who stood up to be counted. Here is a man of rare courage – a man of principle. A man for all seasons.

Given all of these, does the man, Chief Ayo Adebanjo really need any introduction? What can be said about him that has not already been said – or, has he not said of himself in his biography “Tell It As It Is”?. What? Little, if anything, to be honest. Accordingly, I will only dwell briefly on Chief’s glittering past and illustrious antecedents. Chief Ayo Adebanjo made his earthly debut on the 10th of April, 1928, in Ijebu-Igbo, in the South-West of Nigeria. His early life showed the promise of what was to come when he slapped a British colonial officer reportedly for lacking in manners, retorting audaciously: “Is that how you say ‘good morning’ in your country?”. That singular act of courage (some might call it foolhardiness) and his refusal to apologize cost Chief his job in the colonial civil service; and this has defined him ever since.

Chief Adebanjo started life as a journalist with a regional newspaper before the lure of politics (his first love) beckoned. It was not difficult for him to pitch his camp with the foremost progressive politician of our time, Chief Obafemi Awolowo, under whose tutelage, Chief Adebanjo thrived and blossomed, becoming an effective grass-roots mobilizer. His political career was only interrupted by his legal studies in the UK, which he successfully completed, after which he was called to the English Bar in 1961. Back home in Nigeria, he continued his sojourn with Chief Awolowo – this time in the latter’s law firm.

Their relationship continued into the tumultuous politics of the First Republic, which saw both men face criminal trial for treason leading to the incarceration of Chief Awolowo. With such an ominous fate befalling his leader, Chief Adebanjo needed no prompting to seek refuge in Ghana. This was unfortunately short-lived, as the new military government in that country promptly rounded him and his co-exiles up and bundled them back to Nigeria. Fortunately for Chief Adebanjo, and other political prisoners in Nigeria, they benefitted from the magnanimity of the government of Gen. Yakubu Gowon which after seizing power in July, 1966, freed them

The onset of the 2nd Republic in 1978 saw Chief Adebanjo becoming part of the Constituent Assembly which ushered in democracy under a new Constitution in 1979. Once again, Chief Adebanjo found a natural platform under Chief Obafemi Awolowo and, together, they made a clean sweep of the seats they contested for in the South-West – including Lagos. Chief Adebanjo was an integral part of that success – something he repeated 20 years later, in 1999, under another progressive platform – this time without Chief Awolowo, who had transitioned to the Great Beyond in 1987.

In the intervening period, Chief Adebanjo has remained consistent in championing the cause of good governance, social justice, political restructuring and devolution of powers along the lines of the autonomy which the sub-national entities (the regions) had enjoyed in the First Republic. Even though his Yoruba ethnic base was Chief Adebanjo’s original platform, it would be uncharitable to say that he is an ethnic jingoist or tribalist. Far from it. Chief’s record has shown that he’s a detribalised Nigerian who does not hesitate to speak truth to power – no matter whose ox is gored – sometimes at great personal risk and cost.

This was amply demonstrated during the struggle to validate the results of the presidential elections held on June 12, 1993, which were annulled by the military government at the time – and more recently, the last presidential elections in 2023. The latter saw Chief Adebanjo (and the Pan-Yoruba pressure group which he leads, Afenifere) take the courageous position to back the Igbo candidate of the Labour Party, Peter Obi, against one of their own, incumbent President Bola Ahmed Tinubu. Many a commentator has since opined that this singular act might be counted among Chief Adebanjo’s greatest legacies. I agree.

Indeed, if there is one word which defines Chief Adebanjo, it is courage – raw courage; daring bravado. The kind that looks fear in the eye and does not blink. Courage in the face of adversity. Courage to speak his mind without mincing words: to tell it as it is (pun intended!). Little wonder, then, that Chief Adebanjo was and is always at home in the trenches. I recall one incident in 1998. General Abacha who had torpedoed the short-lived interim government of Ernest Shonekan, had released his goons to arrest and detain us at an anti-military campaign rally held in the Ajao, Surulere residence of Chief Supo Shonibare, a distinguished patriot and one of the leaders of the June 12 struggle. I led my Universal Defenders of Democracy (UDD). Present at the protest rally were Chief Gani Fawehinmi, our fearless leader in the struggle; Walter Carrington, the then American Ambassador to Nigeria; his wife, Arese (a Delta, Nigerian lady); Chief Ayo Adebanjo, the intrepid gadfly; Chief Ayo Opadokun, General Secretary of the National Democratic Coalition (NADECO); and other patriots and Nationalists who participated. I still have the picture taken of the brutal invasion of our peaceful rally made by fully armed military and Police personnel who insisted that the rally must break up. We refused and beat their tight security network by dispersing and secretly escaping. Unknown to them, we had used sign language to agree to meet at Chief Ayo Adebanjo’s then residence at Aguda, Surulere, Lagos. By the time they got wind of our plans and arrived at the new venue, we had concluded our successful rally. Those were the locust days that tried men’s souls.

Chief Adebanjo is at his best when he engages in one hot-button issue or the other – either discussing it enthusiastically or otherwise articulating it in his usual characteristic pugnacious way. No. Chief Adebanjo does not shy away from controversy. In fact, you could say that controversy is his second name. Many who have dared to lock horns with him have lived to regret it.

Only on 18th March, 2024, at the Patriots’ Colloquium organized in honour of late Prof Ben Nwabueze, Chief Adebanjo, in ringing baritone voice only perhaps matched by another living legend, Chief E.K. Clark, called for a new autochthonous people’s Constitution. He had maintained this position over the years. He is a consistent man – always as constant as the Northern Star. Perhaps, Emperor Julius Caesar had Chief Adebanjo in mind when he said, in “Julius Caesar”, by William Shakespare (Act III Scene i): “But I am constant as the northern star, Of whose true-fixed and resting quality There is no fellow in the firmament. The skies are painted with unnumbered sparks. They are all fire and every one doth shine, But there’s but one in all doth hold his place. So in the world.
‘Tis furnished well with men, And men are flesh and blood, and apprehensive, Yet in the number I do know but one That unassailable holds on his rank, Unshaked of motion. And that I am he Let me a little show it even in this That I was constant Cimber should be banished, And constant do remain to keep him So”.

Thus, he continues to be engaged even at an age when he is just 4 years shy of a century. His energy and stamina are truly amazing, something men young enough to be his grand-sons can only marvel at – which they can never dream of matching. What is his secret? Perhaps his genes (his father lived to be 105). But, part of it must surely be his Spartan, disciplined lifestyle, marked by a daily exercise regime which he has faithfully observed for as long as he cares to remember.

CONCLUSION.
To say that Chief Ayo Adebanjo is one of Nigeria’s few surviving nationalists is to merely state the obvious. He has transcended his origins and regional roots to become, today, a National icon, a colossus of progressive, populist and people-oriented politics. He is a pan- Nigerian politician in the mould of the late Herbert Macaulay and Dr Nnamdi Azikiwe. Indeed, he follows rigidly, the footsteps of his mentor and leader, Chief Obafemi Awolowo, who was described by the irrepressible Chief Odumegwu Ojukwu as “the greatest president Nigeria ever had”. While both Awo, Ojukwu and other contemporaries of Chief Adebanjo have since transitioned to the great beyond, Adebanjo remains strong and stoically struggles on with all his faculties intact. He is truly one of the very last of the Mohicans – the last men standing. Here’s wishing and praying that he outlives his father and continues well beyond his 100 year anniversary in good health, fine cheer, and peace that passeth all understanding. All for the benefit of Nigeria and Nigerians. We desire to continue to drink from and draw from his inexhaustible wealth of experience, wisdom and sagacity and to keep being inspired by his life of courage and achievements. Many happy returns Chief! God bless you, papa.

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Posted by: Prince Ahmed Hassan (TOHA)

Prof Mike Ozekhome, SAN, CON, OFR, FCIArb., LL.M, Ph.D, LL.D, D.Litt, D.Sc.

Introduction

There is no doubt that the fundamental attribute of law is its ability to curtail excessive behaviours of man. In the absence of law in any society, anarchy and survival by strength become inevitable. The purpose of law is to produce either of two things: (a) an idealistic society or (b) a practical society, more tolerable than what has been labeled by some philosophers as ‘the state of nature’, in which there are no formal ties between mankind, and no civil or statutory law. The importance of law is such that it is difficult or impossible for a society to exist without law.

The force of law is a major requirement for maintaining social order and preventing chaos in a society. It is thus difficult to imagine the existence of a community without law. Lending credence to this is the view of Thomas Hobbs to the effect that, life outside society and law would be ‘solitary, poor, nasty, brutish and short’.

It is as a result of this that mankind saw the need to come together and entrust power to a group of people to implement policies and laws for the good of all, and this was how ‘government’ came to be.

In a democratic setting, the role of law in maintaining sanity and preventing impunity is enormous and indeed cannot be overemphasized. In absence of law, rule by whims and caprices of those in authority, or what I may rightly describe as “strongmanism”, becomes the order of the day. In fact, there can be no democratic setting in absence of rule of law, governing the system and limiting the powers of those in charge. Thus, it has opined that the essential characteristic of the liberal theory of the State is the idea that the authority and power of the State are limited. 

It is against this background that this article seeks to X-ray the role of law in maintaining sanity and preventing impunity under a democratic dispensation.

Definition of Key Terms

The key terms that require definition for the purpose of clarity in this work are “Law”, “impunity” and “Democratic Setting”.

Meaning of Law

Law being a complex phenomenon, any good definition of it must be complex. Thus, aptness must not necessarily be the important criterion.

Although there is no universally accepted definition of law, law in more loose sense as against its specialized meaning is that which is laid down, ordained, or established. A rule or method according to which phenomena or actions coexist or follow each other expansively. It has been said that law represent a system of principles and rules of human conduct, being the aggregate of those commandments and principles which are either prescribed or recognized by the governing power in an organized jural society as its will in relation to the conduct of the members of such society and which it undertakes to maintain and sanction and to use as criteria of the actions of such laws. In other words, law is an accepted code of conduct which has been formulated and endorsed by organs empowered to generate such code of conduct to be generally applicable and binding on all class members of the society so as to guarantee the protection of the weak and strongly regulate the over bearing influence of the mighty in the society.

Put differently, law consists basically of a body of rules of human conduct which are binding on all, both the lad and the leaders. Law is a body of rules in a society at any given time, considered binding and which a breach is met by a sanction. It is a set of formalized or codified rules stipulating the rights and duties of individual, powers and obligations of authorities, with their limitations and remedies as well as the manner of redress in any case of breach. When rules involve the idea of obligation, they become law, but when they merely represent the notions of good and bad behaviour, they are mere rules of morality. Mere coincidence of patterns of behaviour does not indicate the existence of law; habits must thus be distinguished from obligatory rules.

Some people consider law as a command and some rules of law are couched in terms of command given by an authority and directed to an individual or a group. Most laws or legal rules however are not in that form, but are rather normative in character as it prescribes the norms of conduct-what people ought to do. It is imperative in character, that is, law states what people no matter their status or position, must do and what they must not do. Thus, the exercise of power by a leader or leaders, must be done in accordance with the limits provided by law. The practice of one arm of the government interfering with or undermining the powers of other arms breeds impunity and should not be allowed.

Practically, obedience to the law is secured by sanction and sanction serves the purpose of protecting the general community against persons of deviant behaviour. Without sanction, the continued existence of the society would be in danger and society would ultimately disintegrate.

Generally however, the term “law” is used to mean three things:

First, it is used to mean “legal order”. It represents the regime of adjusting relations, and ordering conduct by the systematic application of the force of organized political society.

Secondly, law means the whole body of legal precepts which exists in a politically organized society.

Thirdly, law is used to mean all official control in a politically organized society. Law in its narrowest or strict sense is the civil law or the law of the land.

Evolution of Law and Government

Behaviour rules have developed and evolved along with the evolution of human communities, changing into social norms of cohabitation, organization and behaviour. The evolution of the community brought about the evolution of penalties applied to individuals who disobeyed or broke those rules. Thus, the first forms of human community used the death penalty (blood revenge) as means of punishment for serious violation of the rules of coexistence. Later on, death penalty was replaced by the individual’s expulsion from the community and as communities evolved, material redemption was used instead of expulsion. The first judicial norms (the germs of law) developed among these social cohabitation, organization and behaviour rules. Judicial norms differed from other rules due to their compulsory character and by appeal to the coercive force of the community when they were broken by certain individuals. The change of social, customized norms into judicial norms and the emergence of law as independent entity take place along with the occurrence of state and public power rooted in the Greek – Roman Antiquity. It has been said that law is a social phenomenon incidental to human society; thus, Romans have expressed this statement through the phrase: “ubi societas, ubi jus”, namely law occurs along with the society.

Impunity

One term that has gained prominence within the Nigerian democratic setting is “impunity”. Its overreaching influence holds sway on almost all facets of its democratic setting and institutions. The word —impunity derives from the Latin word —impunitas, which literally means “without punishment or exemption from punishment”. However, there is no consensus as to the meaning of impunity. Hence, diverse definitions of impunity abound, with each definition reflecting the perception of the respective writer. Despite these divergences in definition, impunity is nevertheless, often associated with the outright disregard for law or the rule of law, violation of human rights and the abuse of legal-social power

Impunity has been held to mean freedom from punishment or from unpleasant results of something that has been done that is wrong or illegal. The term “impunity” originates from the Latin word “impunitas” which translates to mean freedom or exemption from punishment, penalty or harm. It also means immunity from punishment. The height of impunity in any given society reflects the decadence of morality and consciencelessness of that society.

As Louis Joinet (United Nations Special Rapporteur) observed, impunity is a consequence of the —failure of states to meet their obligations, investigate violations and take appropriate measures (against) perpetrators, particularly in the area of justice, to ensure that they are prosecuted, tried and duly punished; to provide the victims with effective remedies and reparation for the injuries suffered, and to take steps to prevent any recurrence of such violation. It is thus evident, that the failure of a State to enforce the rule of law by meting out appropriate punishment to offenders and providing requisite remedies for victims is what ushers in a culture of impunity.

Democratic Setting

There is no consensus among scholars on the exact definition of democracy. Democracy is a Greek word which in its simplest form literally means “rule of the people”. Before Abraham Lincoln ever defined democracy as “a government of the people, by the people and for the people” different scholars has attempted to proffer definition to the subject matter. Though there is no consensus among scholars as to a generally acceptable definition of the term “democracy”, I shall however attempt to state a few of the definitions so far offered by different scholars in this write-up.

Rousseau sees democracy as the government of the people, for the general will of the people. Euripides, a Greek philosopher long before Plato, shared the above view when he described a democratic State as one governed by people’s representatives and for the many who have neither property nor birth. Plato, another Greek philosopher, had a similar view of democracy when he defined a democratic state in his book, the Republic, as a State governed by the philosopher kings, who neither marry nor have personal property, but live together in the barracks (that is, equivalent to government house today) and enunciate policies for the general welfare of the people. However, Plato, in his second and third books, the Statesman and the Laws, respectively modified his definition when he defined democracy as the government of the people in which law is supreme, ruler and subjects alike being subject to it.

Thought for the week

“At his best, man is the noblest of all animals; separated from law and justice he is the worst.” (Aristotle).

The post The Role Of Law In Maintaining Sanity And Preventing Impunity In A Democratic Setting (Part 1) appeared first on Mike Ozekhome’s Chambers.

Posted by: Prince Ahmed Hassan (TOHA)

Prof Mike Ozekhome, SAN, CON, OFR, FCIArb., LL.M, Ph.D, LL.D, D.Litt, D.Sc.

INTRODUCTION

We debuted this treatise with an exploration of the link between party defections and stomach infrastructure. This was followed by three posers: ‘What is politics?’, ‘Multi or Single-Party: Quo Vadis Nigeria?’ and ‘What are Political Parties?’. We, then, examined ‘Different Party Systems’, focusing on One-Party System – particularly it’s advantages.

Today, we shall x-ray it’s disadvantages after which we examine the other option: Multi-Party Democracy – it’s advantages and disadvantages. Enjoy.

DISADVANTAGES OF A ONE-PARTY-SYSTEM

The following are the reasons why a one-party system should be avoided in favour of more liberal or democratic ones as will be discussed anon. They include:

• Prone to Dictatorship: In a one-party system, the ruling party sees itself as the state (L’Etat, c’est moi – I am the state – by Kind Louis XIV of France, 13^th April, 1655). It acts and reacts arbitrarily and whimsically without much consideration to external interests, rights or suggestions. Any form of opposition is seen as treasonable, and must be crushed. Tolerance is obfuscated. There is no supremacy of the law but of the leaders. Political debate is stifled and the words of the leader of government become the law of the land.
• Breeds unbridled Corruption in Governance: It is said of power that it corrupts, and absolute power corrupts absolutely (Lord Acton). A one-party system of government could engender so much corruption as there is no opposition to criticize or speak against it. Nepotism, favouritism, prebendalism, sectionalism, tribalism, and other negative “isms” thrive in this government set-up.
• Lack of Accountability: In a one-partysystem where the government is not answerable to anybody but itself the government acts according to its whims and caprices. There are no checks and balances as the government has a blank cheque to do and undo as it pleases.
• Undemocratic: As the government is but a select class of the populace, the vast majority of the people are shut out of participation in the administration of their government. Democracy is stifled and the aspirations of the people asphyxiated.
• No Freedom of Choice: In a one-party system, imposition of leadership is the order of the day. The most unpopular, clueless candidate could be imposed on the nation without the opportunity given for his screening. Elections, if any, are conducted as a mere formality to rubber stamp the anointed.
• Hinders Development: A one-party system inhibits social development because important governmental policies, programmes and decisions are taken without consulting widely and subjecting same to constructive debate, criticisms and input. The progress of the leader of government is often equated with the progress of the society. Rather than developing the country, the government spends taxpayers’ moneys in stockpiling very costly military hardware which they then use to harass and intimidate the masses of the people in order to maintain their iron grip on power.
• Citizens are reckoned as objects of the state and all social freedoms and liberties are crushed and their rights curtailed. Personal growth and innovation are hindered; and there is mutual distrust between the government and the governed.
• Breeds civil unrest and culminates in such social vices as armed banditry, kidnapping, armed robbery, insurgency, terrorism and bloody insurrections, revolutions and overthrows.  There are usually pent-up grievances, bad blood and sour emotions against the leadership class from the lot of the masses. Peace is enforced; no loyalty is real.
• The laws of the land could be amended at any time to serve the needs or ends of the government at the expense of the governed. Tenure elongation and other unconstitutional vices are committed with impunity.
• Civil rights are often abrogated. In these political enclaves, citizens exist rather than live. Fear hangs in the air, as the Big Brother might be watching, hearing and seeing!

MULTI-PARTY SYSTEM OF GOVERNMENT

In his Gettysburg Address, delivered on the afternoon of 19^th November, 1863, during the American Civil War, Abraham Lincoln, 16^th president of the United States of America, defined democracy as “government of the people, by the people, for the people”. This definition has come to become the hanger from which to assess liberalism and/or authoritarianism in the enterprise of government or governance. In it is contained all the hallmarks of free, popular and untrammelled participation in governance or the political process, which is effectively achieved through the instrumentality of multiple political parties vying for political power, during periodic elections.

Multi-party system is that system of political participation that encourages the full and adequate participation of the people in politics, nay governance, through political parties or units of their own choosing. Countries that practise multi-party system include Nigeria, South Africa, the UK, the United States of America, Argentina, Belgium, Brazil, Germany, Norway, Sweden, Tunisia, Ukraine, Turkey, India, Cameroon, Israel, Kenya, Ghana, Rwanda, etc.

ADVANTAGES OF A MULTI-PARTY SYSTEM.

The following are some of the reasons why nations choose the multiple party system.

• Full Citizens’ Participation in Governance: The multi-party system encourages citizens from all walks of life to participate in the government of their country and contribute in the overall development of their society.
• Encourages Liberalism and Opposition: In a multi-party system, citizens are not gagged or caged; opposition is welcome and the ruling government is kept always on its toes by the timely constructive checks on the activities of Government. In Africa, the opposition is more active in South Africa, where the Economic Freedom Fighters, have held the ruling ANC to accountability since 2013.
• Prevents Despotism and Tyranny: The multi-party system does not guarantee a stronghold on government for too long. Periodically, elections are held and positions open to all to contest. Bad leaders are often booted out of office through the ballot and those who are elected into office rule with the constant reminder in their minds that only excellent service can guarantee them security in office.
• Allays Fears of the Minority: There are minority groups in every society. In a multi-party system where politics is free for all, minority groups can form themselves into parties, or form alliances with other minorities or parties to participate in governance. These reduce the resentment that festers in a system that restricts or restrains popular participation in governance or the electoral process.
• Helps in the Facilitation of Peaceful Change of Government: In a multi-party system of government, the process of changing government is always easy, as elections are held periodically and the electorate votes in the government of their own choosing. This allows for peaceful change of government.
• Encourages Voter Participation: Multi-party system ensures voter participation is usually high, because the electorate has the power to elect their leaders and have a strong say in the outcome of the elections that throw up their leaders. They feel valued and this encourages active participation in the electoral process. It makes representation more real and public life more honest.
• Breeds a ready alternative force to displace and replace a non-performing government.
• Reduces the incidence of corruption in governance: Incidence of corruption is reduced because of the abundance of a watchful civil society community that follows up on the activities and programmes of government officials to make sure that the right thing is done always. Through them, many shady deals have been unearthed, exposed and the affected government officials named and shamed.
• Shared Responsibility: In a multi-party system governance, there is a shared responsibility. It is not the exclusive preserve of a few privileged and powerful lot. For this reason, the interest of the common good is put over and above personal considerations. Citizens view the government as their common patrimony and do everything to preserve and improve on it as patriotically as possible.
• Openness and transparency in government: In a multi-party system the resentment that festers amongst citizens when their voices are muffled by the ruling class in a one-party system is removed, and citizens express their grievances in more democratic ways instead of resorting to criminality, intrigues, subterfuge, insurrection, sabotage, vandalism, and vicious class struggle.
• Fear of the Electorate: The fear of what the electorate would do come next election makes the government to channel governmental presence by way of infrastructural development and provision of vital social amenities to every part of the country.

DISADVANTAGES OF A MULTI-PARTY SYSTEM

The following are some of the reasons why nations choose the multiple party system.

• Political Instability as a Result of Party Rivalry: As a result of the multiplicity of parties vying for the ultimate goal of ruling the country, it often degenerates into vicious and unhealthy rivalries amongst the various parties. The aim of politics then only becomes the securing of personal, sectional or partisan benefits rather than carrying out a programme of public policy. In the words of Alexander Pope, party politics becomes “the madness of the many for the gain of the few.”
• Encourages Division in the Polity: In climes like Africa where religion, tribalism, ethnicity and other primordial consideration inform the formation of political parties, the political parties are always at loggerheads with one another. This often leads to disagreements that invariably degenerates into bloody civil unrests and ethnic cleansing.
• Expensive and Corruption Prone: It is very expensive to operate and may engender official corruption. A multi-party system is usually very expensive to operate. Because many political parties are vying for power, they put so much money and other resources into the electioneering, with the hope that all expenses would we recouped once they win and take over government. This system of “investment politics” thus engenders high-octane official corruption and waste of the nation’s resources. In some countries, the cost of running elections are higher than the annual budgets! Many take bank loans and others sell landed properties to contest elections – they invest to reap.
• Confusion as to the Choice of credible Leaders: In a multi-party system where the parties are many and the candidates are surplus, the electorate could get confused in the choice that they make. Many factors could lead to this, namely, monetization of the electoral process, vote-buying, bribery, fake promises, lack of a single/national political ideology, and selfish interests.
• Leads to Compromise of Political Values: In a multi-party political system, it is may be very difficult for one political party to win election and control the government. In that wise, parties enter into alliances or coalitions to enable them achieve their goals. When such a government borne out of diverse political attitudes, cultures and values band together there is always bound to be clashes and conflicts of interest (centripetal and centrifugal), unhealthy compromises which have very negative impacts on the programmes of the government and the society.
• Creates Room for Electoral Malpractices.
• Retards national growth and development because of the need for the majority of the parties to agree before critical governmental decisions are made and implemented. And this inter-party consensus may always be difficult to arrive at.
• Engenders factional hatred which invariably lead to mutual distrust that defeats the purpose of government, which is the molding of national unity and consensus as well as the conditions essential to the development of the nation. 

CONCLUSION

“Let us hear the conclusion of the whole matter”- Ecclesiastes 12: 13.

All men desire happiness. States exist for the purpose of bringing about the greatest happiness of the greatest number of its citizens. Government is the instrument the State employs for the actualization of this goal; and political parties are the routes or vehicles to government. Therefore, parties are necessary for the formulation of government and a popular government is the delight of the masses. The success of the State and the respect it gets from the masses of its people is judged by the efforts it makes to give their rights—nay their lives—increasing meaning.

We have exhaustively discussed the system of attaining political power in a democracy with the searchlight beamed across the globe. We have discussed the one-party system and the multi-party system. They have their advantages as well as their disadvantage, duly appraised and objectively construed. Only after one has gone through these two party systems of government with some objectivity would one realize the dilemma one is cut in in choosing one from the other. But the litmus test of “the greatest happiness of the greatest number of its citizens” becomes our barometer (to measure or show the changes that happen in the economy, society or political space whether the system is run on one-partysm or multi-partysm), because the State exists for the sole good of the citizen. On this journey, therefore, the State is the means and the citizen the end.

If democracy is “government of the people, by the people, for the people” for the attainment of the “the greatest happiness of the greatest number of its citizens”, then it should leave wide open the Ark of politics for its multitude to enter in order that they may be rescued from the flood of tyranny of one man or one party calling the shots, for better or for worse.

It is on the basis of the above purpose of the State that this writer prefers the multi-party system, which seeks to accommodate and harmonize different interests and represents the interest of the majority and minority for the good of all; indeed that system which allows all men to join in the roaring chorus of democracy accompanied by the different percussion of its players (Concluded).

Thought for the week

LAST LINE

God bless my numerous global readers for always keeping faith with the Sunday Sermon on the Mount of the Nigerian Project, by humble me, Prof Mike Ozekhome, SAN, CON, OFR, FCIArb., LL.M, Ph.D, LL.D, D.Litt, D.Sc. kindly, come with me to next week’s exciting dissertation.

The post IS NIGERIA SLIDING TOWARDS A ONE-PARTY STATE? (Part 2) appeared first on Mike Ozekhome’s Chambers.

Posted by: Prince Ahmed Hassan (TOHA)

Prof Mike Ozekhome, SAN, CON, OFR, FCIArb., LL.M, Ph.D, LL.D, D.Litt, D.Sc.

Introduction

In last week’s episode, we reviewed the modalities for judicial appointments, the training and re-training of judges, the importance of the rule of law generally, and in a democratic setting. In today’s installment we shall conclude our discussion of the role of the rule of law, and then we shall draw a perfect conclusion of this interesting treatise. Come with me.

The Role of the Rule of Law in a Democratic Setting (continues)

In other words, a constitutional government is a government according to rules, i.e. institutional government.  It is an impersonal system of rules and office that effectively binds the conduct of individuals involved in them.  Contrary to our experience in Nigeria, government being impersonal should not have a temper. By way of contrast, government in a regime of personal rule is uncertain and problematic because it is largely contingent on men, upon their interests, ambitions, desires and aversion, their hopes and fears and all other predisposition’s that the political animal is capable of exhibiting and projecting upon his political life.

Whereas, in a constitutional democracy where there is a pre-eminence of the rule of law, where there is absolute Supremacy” of the constitution, the government has no more powers than are granted to it, either expressly or impliedly, but the constitution, and any exercise by it of power not so granted or which is prohibited to it is unconstitutional, null and void.

Conclusion

The Judiciary has an important role to play in this democratic dispensation. But, we have seen from the foregoing that its independence (which is necessary for the effective discharge of the role) cannot be merely assumed, from the mere fact of existence of democratically elected government. All governments, be they military or civilian seek to water down the effectiveness of the Judiciary, one way or the other.

Democracy involves the institutionalization of the Rule of Law and guarantee of human rights. There must therefore be a concerted effort to hold the balance between the traverses of power and instill the spirit of liberty, democracy and social justice in the people. This is where the judicial power conferred on the Judiciary under section 6 of the constitution becomes very vital.

The Judiciary is the soothing balm in the face of frictions accessioned by new expeditions in balancing of power in a nascent democracy like ours. The Supreme Court  has demonstrated this important role in the manner it judicially resolved burning national issues like the so-called ‘resource  control’ suit, the Local Government Law conflict, the registration of political parties face off, the Anti-Corruption Act case, to name a few.

The Judiciary, in a democracy, is a pacifist par excellence! The imperatives for an independent Judiciary are therefore more urgent in this dispensation than at any other time. Justice must not just be done, but manifestly seen to be done. Nigerians must have implicit confidence in the Judiciary. We have demonstrated that the viciousness of the judicial fangs would depend on the level of its independence as perceived by the people.  Commenting  on the maxim, “de fide et officio non recipitur quaestio,  sed de sicentia  sirve error juris  facti”  (the honesty and integrity  of a  judge  cannot  be questioned, but  his decision may be impugned for error, either of law or fact), Ogham-Emeka Counsels:

“The option before a person who perceives that an order was wrongly made against him is to obey and expeditiously move to set it aside. But there is so much the judiciary must do if the people would not soon sneer at this time honoured principle and accuse lawyers of merely dressing a long rotten  apple with lousy  Latin and grammatical saccharin. And may the day never come!” 

The Judiciary, in a democracy, is a pacifist par excellence! The imperatives for an independent Judiciary are therefore more urgent in this dispensation than at any other time. Justice must not just be done, but manifestly seen to be done. Nigerians must have implicit confidence in the Judiciary. We have demonstrated that the viciousness of the judicial fangs would depend on the level of its independence as perceived by the people.  Commenting  on the maxim, “de fide et officio non recipitur quaestio,  sed de sicentia  sirve error juris  facti”  (the honesty and integrity  of a  judge  cannot  be questioned, but  his decision may be impugned for error, either of law or fact), Ogham-Emeka counsels:

“The option before a person who perceives that an order was wrongly made against him is to obey and expeditiously move to set it aside. But there is so much the judiciary must do if the people would not soon sneer at this time honoured principle and accused lawyers of merely dressing a long rotten  apple with lousy  Latin and grammatical saccharin. And may the day never come!”

Accordingly, we all have the challenge to do all that is in our power to maintain the integrity of the court which in turn would uphold the hallowed principles of the Rule of law.  The importance of an independent Judiciary in a democracy cannot be down played.

“No institution carries with it the responsibility for democracy’s survival as does the Judiciary.  In the inevitable confrontation between the State and citizens, between tiers of government and between all manners of political actors, it is the Judiciary that is the last hope for the resolution of disputes.” 

It would be appropriate to end this paper by borrowing what would be a present challenge to the Judiciary, indeed a tasking of its independence in this democratic dispensation.  We see the constitutional role of the Judiciary in this democratic dispensation as follows:

“To call both the legislature and the executive to order when they are going wrong.  They should stop dancing as if they are appendage of the legislature or the executive.  The Judiciary should act independently.  It should come down heavily on the side of justice, of the masses of the Nigerian people.” 

If we do not stand up for the independence of the Judiciary now, when do we do it?  When there is no more government?  Or when chaos and anarchy set in?  Or when there is no more Nigeria?  It is better now than never! (The end).

Thoughts for the week

“The judiciary perpetuates a breath of state structure. If it fails to purify and justify itself; consequently, all of its systems, evince a collapse. Indeed, it embraces only the destruction.”
(Ehsan Sehgal).

“The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are blowing.” (Caroline Kennedy).

The post The Independence of the Judiciary in A Democratic Dispensation (Part 6) appeared first on Mike Ozekhome’s Chambers.

Posted by: Prince Ahmed Hassan (TOHA)

INTRODUCTION

  “I like the noise of democracy.” 

James Buchanan Jr.

The lie that Nigeria is operating a multi-party system of politics or government, with a whopping 18 legally registered political parties (see: INEC, 2023), is daily being perforated by the actual practice of politics (realpolitik, as the Germans call it) in the country; a classic example of appearance being way different from reality.

The body language of Nigerian politicians—and the atmosphere of its political trajectory—has always been tilted in favour of at best a two-party and at worst, a one-party set-up. This could be traced back to the First Republic, during the clash of the alliances between the Nigerian National Alliance (NNA) and the United Progressive Grand Alliance (UPGA), well into the Second Republic when the dominant ruling National Party of Nigeria (NPN) sought to smother into oblivion any voice of dissent or opposition but rather foist on the opposition, the Hobson’s choice of choosing between either entering the Big Tent of the NPN,  or facing a well-oiled witch-hunt. This is usually climaxed either in having some opposition actors being hacked to death by the assassin’s axe or being rammed into distant goals (better described as ‘dissenters centres’) from their habitats, on various trumped-up charges. A bad precedent was thus set; and it came to become one which would be so faithfully followed for much of the past sixty-three years, by whichever set of its disciples made a majority in the Government of the day, otherwise called ‘the ruling party’.

DEFECTIONS AND STOMACH INFRASTRUCTURE: THE LINK

The ruling party syndrome (or ‘party spirit’, as George Washington, America’s first and greatest president, once termed it), has continued to plague and foul the Nigerian political space with its corrosive stifling and depletion of opposition or alternative voices, so much so that since the return of democracy in 1999, Nigeria continues to totter precariously on the precipice of one-party politics or government. The situation has got to its worst nadir since the last general elections of 2023. With the spate of defections (or decampments), anti-party activities, and spineless opposition at the federal and state legislature levels of late, the All Progressives Congress (APC) has since emerged the behemoth winner, clawing at the foundations of the nation’s democracy like a leviathan. And its ever-yawning jaws are closing in on the rest of the other seventeen (17) registered political parties. The death of Opposition is nigh and the fate of democracy in Nigeria is benighted against a bleak socio-political one-party future. 

It makes one wonder what politics Nigeria is really operating. A co-operative for people-oriented service or a trusteeship for egotistic personal vendetta? The reality appears to be a woeful weave of the two. My OZEKPEDIA neologism either coined or rephrased this genre of politics as “Akpu”, or “Edikang ikon”, “tuwo shinkafa”, or politics of “omisaghue and amato”. Ozekpedia has also termed it “come-and-chop”, or “chop-I-chop” politics. Maverick politician ang great achiever, Ayodele Fayose (Peter the Rock), former governor of Ekiti State, once called it “stomach infrastructure” politics. Before Fayose, colourful Nigerians such as Busari Adelakun (Eruobodo) and Lamidi Adelabu had coined “Amala” or “Gbegiri” politics. All refers to the sorry non-ideological stance of Nigerian politicians (sorry, “Politricians” according to OZEKPEDIA) where over 90% of leading lights and major players in the APC today were once the controllers of the PDP (now a mere shadow opposition). 

WHAT IS POLITICS?

This simple question of what the essence of politics is all about has agitated great minds for centuries. No definition is quite exhaustive. A few shed some directive light. One was so brief or flippant it acquired a universal notoriety. It is “who gets what, when and how”. This was by Harold Dwight Lasswell, a leading American political Scientist, Communications theorists and Law Professor at Yale University. The question that comes to mind then becomes, “Who gets what?” The answer to this poser could be found in the etymology of the word politics, which is the Greek word ‘politiká’, meaning “affairs of the cities”. Without undue resort to polemics devoid of practicality, it is our submission that power is the search result of politics. So, the question “Who gets what, when and how?” acquires the reply POLITICAL POWER. Now, politics is the ways and means of acquiring political power, which is the power an individual requires to partake in the politics of his country for the formulation and implementation of positive policies directed towards the welfare of the country. A. Appadorai defines politics simply as “the science concerned with the State and of the conditions essential to its existence and development”: see The Substance of Politics (1975) 11^th ed., p. 4. Put in homely metaphor, politics is therefore the avenue through which the venue for the consecration of the “affairs of the cities” is routed. And nations have blazed and failed on the effect of their politics! 

MULTI OR ONE PARTY- QUO VADIS, NIGERIA?

The looming spectre appears to be a gradual gravitation towards a one-party system of Government. How? Of Nigeria’s 36 States, APC, the ruling party, controls a majority of 20 states. PDP trails behind with 13 states; while the Labour Party (LP), All Progressives Grand Alliance (APGA) and the New Nigeria People’s Party (NNPP) clutches on to one state a piece. For APC to override any decision of the entire Governor’s forum (if we go by two-third majority vote), all it needs to do is to pluck out four governors from PDP, APGA, LP and NNPP. Sikena! Opoo!!

Coming to the National Assembly (NASS), the APC is also dominant. Of the 109 Senators in the Upper Red Chambers of the NASS, APC tops with 60; PDP 37; LP 8; SDP 2; and APGA 1. Two-thirds of 109 Senators is 73.80, for APC to have its way through in the Upper Chamber on matters that requite two-third majority votes, all it needs to do is to lobby and get additional 13 Senators from the other parties – a mere piece of cake, based on the non-ideological “come-and-chop” politrics we presently operate in Nigeria. The same is the story in the 360-member Chambers of the House of Representatives (the Green Chambers).

Is this movement towards a one-party state good for Nigeria? does it allow for plurality of ideas and strong democratic precepts? We shall now look at the gamut of all these.

WHAT ARE POLITICAL PARTIES?

A political party is a vehicle for the attainment of political power. This vehicle usually contains a group of citizens who act together as a political unit and seek to obtain control of the Government or take part in it. Political parties articulate the desires of the masses they represent. They give life to politics, educate the electorate and help in carrying on elections. They may act as watchdogs of Government depending on the system of party politics in practice in the polity.

DIFFERENT TYPES OF PARTY SYSTEM

A party system is the adopted way by which the Government of a country allows political participation through political parties. It is the system of government by political parties in a democratic state. There are various types of party system practised all over the world. The most common are:

1. One-party system;
2. Multi-party system.

ONE-PARTY SYSTEM OF GOVERNMENT

As the name implies, in a one-party system of government, the train of political power or politics travels on a monorail. Only one political party is legally eligible to vie for power. All other parties aside the ruling party are banned. Although they may exist in closets; they must remain closeted to all political intents and purposes. It is a case of Either,—no Or! In the world today, countries that practise one-party system of government include Russia, China, Bulgaria, Rumania, Finland, Yugoslavia, North Korea, Cuba, and Czechoslovakia. They are usually Communist countries, with the Communist Party as the one and only recognized political party. A one-party system is characterized by the presence of only one legally recognized political party, absence of an official opposition, absence of opposition parties during elections, limitation in the scope of political education, sameness of the state and the ruling political party and presence of only one political ideology, if any. A one-party system has its advantages and disadvantages. It is to these we now turn.

ADVANTAGES OF A ONE-PARTY SYSTEM

The following are the reasons why a one-party system is preferred by all the countries that practise it. They include:

1. Political Stability:  a one-party system of government is characterized by political stability as there is usually a long-term security of tenure or a life-tenure into the bargain. The incidence of deadly power struggle amongst political parties with the attendant orgy of blood, arson, pains and pangs is removed. Divisive tendencies are eliminated or nipped in the bud. 
2. Speedy Decision-making: Socio-political decisions are reached much more quickly and easily because there are no much nay-sayers in the absolutist system. The decision of the party is always right. And because of this centralized decision-making process, the decisions made are more focused, direct and result-oriented.
3. Less Expensive: A one-party system is easy to run because it is usually shorn of all the heavy expenditure that is required to run a multi-party government. There are usually fewer avenues for the wasting of scarce national and individual resources.
4. Ensures National Integration: A one-party system promotes national unity because every step of the government is taken or seen to be taken in the best interest of the nation, not the leaders. Political, cultural, religious, ethnic or tribal fears are allayed, because they are hardly allowed to rear their ugly heads in the first place. There is a reduction or outright absence of sectionalism, favouritism, prebendalism, tribalism or ethnic and religious bigotry.
5. Ensures continuous Economic Development: In a one-party system, the incidence of tenure-based development as happens in a multi-party system where elections could be easily won by any political party than the ruling party and thus government changed unexpectedly from time to time as happened in Nigeria in 2015, is totally removed or drastically reduced. Here, the government’s security of tenure gives it time to plan and execute developmental programmes on a long-term basis for the benefit of the people. 
6. Useful in Times of National Emergencies: A one-party government is always together and speaks with one voice in times of national emergencies. The interest of the country as represented by the ruling party is always ensured and protected. 

In a one-party system of government, no much time is wasted or dissipated in unnecessary media war, criticism, squabbles, and high-powered political propaganda. Every member of the society has a stake or is made to believe they have a stake in the government and works to build rather than pull it down. The usual centripetal and … (To be continued).

The post IS NIGERIA SLIDING TOWARDS A ONE-PARTY STATE? (Part 1) appeared first on Mike Ozekhome’s Chambers.

Posted by: Prince Ahmed Hassan (TOHA)

Prof Mike Ozekhome, SAN, CON, OFR, FCIArb., LL.M, Ph.D, LL.D, D.Litt, D.Sc.

Introduction

In our last discourse, we considered the notion of political independence in the judicial process and the imperatives of insulating the judiciary from such pressures. We also took a look at the importance of economic/fiscal and intellectual independence for judges, as well as how to sanitize the process of their appointment. This week, we shall continue and conclude the process of appointment and then move on to the training and re-training of judges and the role and importance of the rule of law in a democracy. Enjoy. 

Appointment

By virtue of section 250(3), 256(3) and 271(3) Constitution of the Federal Republic of Nigeria 1999, a person shall not be qualified to hold office of Chief judge or a judge of the Federal High Court, Chief Judge or a judge of the High court of the Federal Capital Territory and a judge of a High Court of a state, respectively:

“Unless he is qualified to practise as legal practitioner in Nigeria and has been so qualified for a period of not less than ten years”.

We are not really concerned here about the procedure for appointment of High Court judges. What has threatened  the system with collapse is the  bare assumption in these constitutional provisions that tends  to imply that once a person has spent ten years on earth since he/she was called to the Bar,  the person automatically has all the intellectual capability to be appointed a judge.

More than anything else, judicial incompetence (encompassing law intellectually, law productively etc) has contributed to rob the Judiciary the necessary intellectual freedom it needs to assert and guard its independence. According to Schewart:

“The quality of justice….depends more upon the quality of the men who administer the law then on the content of the law they administer.” ⁴¹ 

In his keynote address at the recent Bar Conference at Enugu, Chief Afe Babalola, SAN, observed on the constitutional qualification for appointment as a judge as follows:

“This allows great latitude for the appointment of ‘any lawyer’ who has met the ten years requirement regardless of where he is prior to his appointment. This explains why a new  wig from the Nigerian Law School who, immediately after his call (and probably Youth Service) went  straight to work in a company, multinationals and the life without any experience whatsoever in practice  could be and are being appointed as High Court Judge”.

At the swearing in of the new Senior Advocates of Nigeria on Monday, September 8, 2003, the Honourable Attorney-General of the Federation and Minister of Justice, Chief Akin Olujinmi, SAN hinted that more stringent criteria for appointment of judges would be introduced. According to the Chief Law Officer of the Federation:

“We will propose that only those who can furnish evidence of contentious cases they handled  in the Supreme Court, Court of Appeal and the High Court within, say, three years preceding their application should be considered for appointment. By so doing, it will be possible to select only seasoned practitioners to occupy positions on the Bench.”

The plan is absolutely welcome! It has been suggested that the list of proposed judges should be made public to enable members of the public who know the prospective judges to object to a proposal with ‘proven documents’. Our only concern here is the yard stick for determining the competence of lower court magistrates and Area Courts who do not practise law. We suggest that a certain number of highly contentious cases they handled with analytical judgments delivered therein be used as a yardstick.

Training and Re-Training

Also critical to the issue of intellectual independence of the Judiciary, is the assurance of training and continued training. This because the National Judicial Institute takes the issue of continued judicial training even more seriously, the high toll on the nation as a result of the blunders of ignorant judges can only be imagined. It manifests in the erosion of public confidence in the Judiciary. As Professor Oluyede rightly observed.

“A gullible public is too ready to jump to the wrong conclusion that a bad judgment delivered by an innocuous judge who has done little or no research must have been influenced by an overbearing Executive.” 

in his recently published “Agenda For Justice Sector Reform”, the Honourable Attorney-General of the Federation hinted at plans to make constitutional provisions for an independent body to be known as, Judicial Performance Commission to monitor the work and activities of the entire  judicial system. This plan is in the right direction because it has the potential to improve the depth of intellectual independence of Judiciary and ultimately to enhance the realization of an independent and impartial Judiciary.

The Rule of Law

The rule of law means ‘the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power.  It excludes the existence of arbitrariness, or prerogative or even discretionary authority on the part of government.  According to A.V Dicey, renowned cerebral professor of English Law, we must be ruled by law and law alone.  He went further to categorize the doctrine into three aspects.  The first aspect, according to him, means.

“The absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, or prerogative or even of wide discretionary authority on the part of government..”

The second of aspect of Dicey’s theory may be summarized as meaning “equality before the law”, and that law is no respecter of person, rank or status.  He wrote thus:

“Equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts; the rule of law in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals”.

Finally, the third meaning of the rule of law, according to Dicey, is expressed as follows:

“a formula for expressing the fact that with us the law of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals as defined and enforced by the courts.”

The rule of law thus envisages the existence of the constitution or some sort of law which shall be bestowed with absolute supremacy overall persons, whether governor or governed.  The Supreme Court of Nigeria, in simple prosaic terms, expressed this doctrine in the case of Governor of Lagos State V Ojukwu when it held that:

“The law is no respecter of persons, principalities, governments or powers and the courts stand between the citizens and the government alert to see that the state or government is bound by law and respects the law”.

The Role of the Rule of Law in a Democratic Setting

In our contemporary world, the term “Rule of law” is now a convenient short hand for the full complement of our civil and political rights.  That term now denotes the minimum condition of existence in a free, open, humane, civilized and democratic society.  It encompasses the following:

1. The supremacy of the law including judicial decisions over all persons and authority in a state
2. The supremacy of the constitution 
3. Independence of the judiciary
4. The right to personal liberty
5. Observance of democratic values and practices including’ the freedom of speech, thought, association and the press and regular, free and fair elections as the basis for assuming power in government.

Democracy, which is the indispensable Siamese twin of the rule, is based on two key principles:

1. Popular control over collective decision making and decision makers; and 
2. An equal right to share in the control, i.e. political equality.  

However, those key principles require in the modern State, a distinctive set of social components for their realization.  They are:

1. Free and fair elections, to provide the platform for popular control over government; 
2. Open and accountable government, guaranteeing continuous public accountability;
3. Sanctity of the rule of law, upheld by independent courts;
4. Civil and political rights and freedoms, enabling citizens to associate freely with others, to express divergent or unpopular views and to find their own solutions to collective problems;
5. A democratic society, or societal conditions for democracy:

• Agreement on nationhood within the current national or state boundaries.
• Independent and accountable institutions of civil society.
• A democratic culture.

From the above, it is indubitable that democracy without rule of law is tantamount to wholesale arbitrariness.  This much was admirably captured by Professor Nwabueze when he subjected the concepts of constitutional democracy and arbitrary rule to considerable thoughts. According to him:

“Constitutional government recognizes the necessity for government but insists upon a limitation being placed upon its powers.  It connotes in essence therefore a limitation on government; it is the antithesis of arbitrary rule, its opposite is despotic government, the government of will instead of law”.

In Nwabueze’s view, a constitutional, popular government connotes not just a government under constitution, but rather government under a constitution which has force of a supreme, overriding law, and which imposes limitations upon it.  He went further to conclude that. “in practical terms, constitutionalism, democracy and the rule of law are practised in a country where the government is genuinely accountable to an entity or organ distinct from itself, where elections are freely held on a wide franchise at frequent intervals, where political groups are free to organize in opposition to the government in office and where there are effective legal guarantees of fundamental civil liberties enforced by an independent judiciary.

Thought for the Week

 “The judicial wheel is rounded with equality, oiled with honour and functions smoothly with honesty – principally when both members of the Bench and Bar shoulder their responsibilities seriously”. (Munindra Misra).

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