Kayode Oladele

Kayode Oladele

 

Kayode Oladele is a Nigerian-born; U.S based international lawyer, human rights and democracy activist, public policy attorney and development journalist. He is one of the attorneys in the United States handling major international human rights violation cases. He is best known for representing the plaintiffs in the international human rights violation case brought by a group of Nigerians including the mover of the Nigerian self –independence motion in 1956, Chief Anthony Enahoro and Hafsat Abiola-Costello, daughter of the presumed winner of the 1993 presidential election in Nigeria, Chief M.K.O Abiola against a former military ruler in Nigeria, Gen. Abdusalami Abubakar. The case, which was initially filed at the U.S District Court, Eastern District of Michigan in February 2001 and later transferred to the U.S District Court, Northern District of Illinois, Chicago, has made significant contributions to the field of international human rights law most notably in relation to the connection between the Alien Tort Statute, 28 U.S.C. § 1350, (a.k.a Alien Tort Claims Act) and the Torture Victim Protection Act (TVPA) of 1991. Oladele represented the family of Osamuyia Aikpitanhi (b. c.1984, a Nigerian national who was forcefully put on an Iberia aircraft, left with a restraining gag over his mouth and died on an Iberia flight while being deported from Spain to Nigeria on the 9th of June, 2007) in a torture and wrongful death complaint against the Iberia Airlines at the U.S District Court for the Eastern district of Michigan. He also represented the Aikpitanhi family in an international human rights violation suit against Spain before the European Court of Human Rights inStrasbourg, France. He is also a  co-counsel with the former President of West African Bar Association (WABA) Mr. Femi Falana in a similar suit against the Iberia Airlines currently pending before the Federal High Court, Lagos, Nigeria while he is currently the lead counsel representing the Ogale community in Eleme Local Government Area of Rivers State in a major environmental pollution case against the oil giant, Royal Dutch Shell before a US federal Court.

 

As a development journalist, Oladele focuses on the endemic problems of the society, the needs of the people and emphasizes effective participation of people in development planning alongside with the government. Guided by the relationship between Journalism and Development Initiative and journalistic principles of ensuring nation-building, national unity and social cohesion, Oladele propounds action-oriented approach to help overcome challenges like poverty, illiteracy, democracy, rule of law and socio-economic problems in developing countries

 

Oladele is one of the pioneers of contemporary prodemocracy, human rights and civil society movement in Nigeria. As the Executive Director of the Movement for Social and Economic Justice (MOSEJ) and member of the Committee for the Defense of Human Rights (CDHR), the Campaign for Democracy (CD), the National Democratic Coalition (NADECO), United Democratic Front of Nigeria (UDFN), the Nigerian Prodemocracy Network (NPDN), the Nigerian Advocacy Group for Democracy and Human Rights (NAG-DHR) where he teamed up with its president, Maureen Idehen to operate an anti-military short wave radio, "Save Nigeria Broadcasting Service", in Boston, Massachusetts, USA, between 1997 and 1999, he played a pivotal role (both nationally and internationally) in the Nigerian democratic movement and agitation for civil rule that eventually led to the collapse of military dictatorship in Nigeria in 1999.

 

He holds a Bachelor of laws [LLB (Hons)] degree from the University of Lagos,Nigeria, Master of Laws [LLM] degree from the Wayne State University Law School, Detroit, Michigan and Barrister -at-law [BL] from the Nigerian Law School, Victoria Island, Lagos. He also attended the Nigerian Institute of Journalism, Lagos, Nigeria. He is an attorney and counselor -at-law of the Supreme Courts of the United States of America and Nigeria respectively. Oladele, who is the vice-chairman of the Advisory Board of the Institute for Oil and Gas Law (IOGL) Abuja, Nigeria is admitted to practice before the US Courts of Appeals for the Armed Forces, Third, Fourth, Sixth, Seventh and Federal Circuits respectively and the US Court of International Trade, U.S District Courts for the Eastern District of Michigan, Northern District of Illinois and District of (Washington) D.C etc. He is a member of several professional Associations including the Chartered Institute of Arbitrators, (CIArb) UK, Association for International Arbitration (AIA), the International Nuclear Law Association (INLA), the State Bar of Michigan, the American Bar Association (ABA) and the Nigerian Bar Association (NBA).

The international community has finally appreciated and come to terms with the reality of the “cancer of corruption” and its ubiquitous nature; hence, we are all in agreement that being a persistent feature of human existence worldwide, its solution lies in the collective action of key global institutions with organized international joint efforts against corruption. These efforts have produced a lot of anti-corruption measures including bi-lateral and multilateral agreements, enactment of national anti-corruption laws such as the Nigeria’s Economic and Financial Crimes Commission Act, 2004, the designing of international framework and strategies for the prevention of corruption and the making of an all important United Nations Convention Against Corruption which has now become the reference point for anti-corruption fight all over the world.

Nonetheless, the need to study corruption and anti-corruption has continued to generate passionate commentaries and academic interests. While it is obvious that this interest has made the subject matter better understood to an extent, the hundreds of information being incorporated into its study, research data and the diversity of some of the findings have sometimes established some levels of complications too. Apart from the fact that some have attempted to mischaracterize corruption as a tool for development under such labels as “grease the wheels” arguments or the “efficiency grease”, the question still persists, for instance, on how corruption should be situated, whether within the context of the “moralists,” “developmentalists,” or “functionalists” definitions.  More directly, should the definition be public-office centred, market-centred or public-interest centred?

Meanwhile, the definition of corruption becomes more complicated when viewed in terms of such classification as supportive corruption, transactional corruption, extortive corruption, defensive corruption, investive corruption, personal and institutional corruption, traditional and modern corruption, local, national or international corruption, or representational corruption, grand and petty corruption. Or simply put, should corruption be viewed as corruption and nothing more? Many questions continue to arise in our experience and engagement of corruption and corrupt practices.

To this extent and with a focus on the activities of the Economic and Financial Crimes Commission (EFCC) in Nigeria, this presentation engages two questions: What are the causes and consequences of corruption in Nigeria and how has EFCC responded to the scourge? To engage these questions, the rest of this paper is divided into four parts that involve the causes of corruption in Nigeria, its consequences, the role of the EFCC and a conclusion laced with a recommendation that focus on the need for a Special Anti-corruption Court.    

What are the Causes of Corruption in Nigeria?

The causes of corruption are multiple and have been discussed by scholars under numerous headings but I will briefly discuss some of the major causes that we have identified as investigators as some of the common causes of corruption in a political economy.

First, we have identified weak institutions as a major cause of corruption. Corruption has a high propensity to thrive when legal and political institutions are weak and government policies generate economic rents. In most climes, there are so many incentives in the public sector, particular administrative and legal institutions that leave public officials with wide unrestricted authority and powers to create avenues for unjust enrichment or use the discretionary powers at their disposal to manipulate the system.  According to the World Bank Report; “the normal motivation of public sector employees to work productively may be undermined by many factors, including low and declining civil service salaries and promotion unconnected to performance. Dysfunctional government budgets, inadequate supplies and equipment, delays in the release of budget funds (including pay), and a loss of organizational purpose also may demoralize staff. The motivation to remain honest may be further weakened if senior officials and political leaders use public office for private gain or if those who resist corruption lack protection. Or the public service may have long been dominated by patron-client relationships, in which the sharing of bribes and favours has become entrenched. In some countries pay levels may always have been low, with the informal understanding that staff will find their own ways to supplement inadequate pay. Sometimes these conditions are exacerbated by closed political systems dominated by narrow vested interests and by international sources of corruption associated with major projects or equipment purchases”.

Closely related to the issue of weak institutions is the role of formal rules and the criminal justice system. There is hardly any country where corruption is legalized; to the contrary, there are several formal rules and laws prohibiting corruption and corrupt practices with appropriate sanctions and punishments. In addition to organic laws, several public institutions such as the Police, Customs and Immigration, Road Safety Corps, Fire Marshals, the Armed Forces ,  internal revenue agents, and other institutions including the judiciary have comprehensive codes of conduct to regulate their behaviours which also prohibit the receiving or accepting of bribes, gifts, gratifications etc.  However, in a political economy that is laced with corruption, such formal rules are usually supplanted by informal rules or customs that allow corruption to flourish. For instance, the law may criminalize the giving and taking of bribes but in practice, one can hardly get anything done without gratification or in Nigerian parlance, “settling” someone. In Nigeria until the establishment of the EFCC, the laws were hardly enforced and the informal rules prevailed. The EFCC was thus established to strengthen the institutions and to shift emphasis back to the recognition and enforcement of formal rules. In addition to the formation of the EFCC, the government of Nigeria, recognizing the need to have a strong formal rules, had also enacted various other laws such as The Money Laundering Act, the Advance Free Fraud Related Offences Act and the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act and several other appropriate legal frameworks to control corruption and strengthen the legal and economic institutions including the criminal justice administration. The Act also made the EFCC the designated Financial Intelligence Unit (FIU) in Nigeria, which is charged with the responsibility of co-coordinating the various institutions involved in the fight against money laundering and enforcement of all laws dealing with economic and financial crimes in Nigeria.  Essentially however, the incentive to engage in corruption and corrupt practice is stronger where the probability of being discovered or prosecuted is remote or non-existent. 

Another cause of corruption is public perception. Corruption is supported when some/few societal culture promotes corruption. Why should a convicted corrupt individual be offered a chieftaincy title by traditional rulers? Why do governors, some of whom have been fingered in corruption be given awards or be elected into the senate? There are also other instances where religious institutions have ordained corrupt public officials and sometimes organized thanksgiving services for corrupt ex-convicts who are just being release from prisons.

The nature of the economy is also a crucial factor. It has been argued that rent-seeking or rent-based systems tend to promote corruption. If this view holds, then, because the Nigerian economy is based on rents from crude oil and gas, it follows that there would be a number of “leakages” that would allow for the easy flow of cash and favours, sometimes in illegal ways.  Until recently in Nigeria, public officers would deliberately delay the implementation of national budget with the hope that at the end of the financial year, any unspent budget would become largesse to be shared by the senior civil servants. This is why it is often said by experts that for corruption in public sector to flourish, public officials must possess “the authority to design or administer regulations and policies in a discretionary manner”. However, with the passage of new government policies which have made it mandatory for any unspent budget heads at the end of the financial year to be returned to the federation account and the passage of the Freedom of Information Act which is aimed at promoting transparency and accountability in government finance among others, this practice has also become a thing of the past in Nigeria.  

Other identified causes of corruption in Nigeria include poverty, poor remuneration or incentive system.

Consequences of Corruption in Nigeria

The consequences of corruption are universal even if there could be variations in the level of state and non-state responses to these consequences. Simply put: massive corruption in the Nigeria has reduced the amount of money needed for development just as it does in any other political economy.

 First, corruption promotes poverty. A simple example could be made with the corruption in the management of pension funds in Nigeria. The theft of pensions means that retired Nigerians would not have access to their pensions as at when due. This means that those that have dependants to care for would be deprived of the needed funds. Some pensioners eventually died because of the rising expectations that often end in frustrations sometimes occasioned by standing for hours on long queues. What happens to the dependants of a pensioner when he or she is deprived of his pensions? Will such dependants be able to attend qualitative schools or will they be forced out of schools to fend for themselves? If education remains one of the main routes leading to a good life and national development, without education, what would be the future of these dependants and the country?

Another consequence of corruption is that it creates the condition for political instability. This is because unrestricted corruption makes the state an unlimited allocator of wealth to individuals and groups. This character of the state makes it possible for the politics of do-or-die to take root, with politicians struggling to out-compete one another sometimes in violent manner. It must be recalled that the various military regimes that took over power from democratically elected representatives of the people had always justified their intervention on the ground of grand corruption and looting of state treasury by political state actors

Third, corruption contributes to the blanket criminalisation of Nigerians, especially the youths.  With its capacity to generate poverty and instability, the youth have been systematically hijacked for selfish ends by unscrupulous politicians and ideologues. Some of those that were not ‘hijacked’ have found interest in advanced fee fraud popularly referred to as Yahoo-yahoo or 419 in local parlance. While corruption cannot, and should not, be the singular cause of this systematic criminalisation, it contributes to it.

Four, corruption promotes the existence of underground/illegal economy. The possibility of bribes infiltrating the security systems have made it easy for underground economies in counterfeit, adulterated and substandard products, especially drugs. Though these underground economies worth billions of dollars, the government do not benefit from taxes nor are the people benefiting from the dangerous effects of adulterated drugs.

Five, corruption also has other social costs apart from poverty.  As rightly noted by Myint (2000: 50), in “any society, there are laws and regulations to serve social objectives and to protect the public interest, such as building codes, environmental controls, traffic laws and prudential banking regulations. Violating these laws for economic gain through corrupt means can cause serious social harm.” The frequent use of substandard materials and violation of building regulations have led to several buildings collapsing and killing innocent occupiers have become a recurrent decimal in Nigeria while large scale oil spills with catastrophic effects have continued in some part of the country.


Lastly, and consequent upon the aforementioned is that corruption is antidevelopment to the extent that it reduces the amount of funds available to be used for developmental purposes. Monies that should have been used to better education, health, infrastructure and other items needed to encourage a good life of Nigerians are stolen by a microscopic few. But how has the EFCC responded? What has been done so far?

The EFCC and Anti-corruption

In discussing the responses of the EFCC to corruption in Nigeria, it is pertinent to briefly have a grasp of what the agency represents and its origin. The emergence of the country’s Fourth Republic was marked with the election of retired General Olusegun Obasanjo, a former military ruler between 1976 and 1979 as Nigeria’s President on May 29 1999. Prior to that time, it had been estimated that about US$400 billion was stolen between 1960 and 1999. Based on his conviction that corruption remains a major challenge of the country, two distinct anti-corruption agencies were created: the EFCC and the Independent Corrupt Practices and Other Related Offences Commission (ICPC).

The EFCC was created and empowered to prevent, investigate and prosecute economic and financial crimes as entailed in the Banks and Financial Institutions Act 1991, Miscellaneous Offences Act, the Money Laundering Act 1995, the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act 1994, the Advance Fee Fraud and Other Fraud Related Offences Act 1995, the Economic and Financial Crimes Commission Act (2004), and the Money Laundering and (Prohibition) Act 2004.

A lot has changed in Nigeria since the establishment of the Commission ten years ago. Increasingly, accountability is gaining centre stage in our governance system as senior government officials are now being called upon to give account of public resources under their watch.  Several public officers who are found wanting have been indicted and many are today facing criminal trials on allegation of corruption and breach of trust.  The same goes for the private sector; chief executives of Banks have been investigated, prosecuted and convicted with assets worth billions of Naira forfeited to the government and other victims of crime.

In 2012 for instance, a total of 7,737 petitions were received and processed by the Commission. This represents 6% increase over petitions received in the preceding year. Out of these, 2,606 were assigned for investigation, 2,385 were referred to other security agencies for necessary action and 2,746 were rejected for lack of merit. A total of 97 criminal convictions bordering on money laundering, illegal oil bunkering, pipeline vandalism, bank fraud, forgery and criminal breach of trust, etc. were also secured.

In the same way, a combined total asset worth N 9,755,924,635.69 was also recovered and forfeited to various victims of crimes which included government agencies and departments, private individuals, institutions and organisations. This is besides the recovery of a total of the over $170million between 2010 and 2011 made through settlements (jointly with the Honourable Attorney General of the Federation and Minister of Justice) from foreign multinationals involved in the Halliburton bribery scandal and custom duty violation, etc.

In addition, in the first quarter of 2013, the Commission recorded 33 convictions. Five of the convictions were on illegal transportation of foreign currency contrary to the Money Laundering (Prohibition) Act. The sum of $144,214.5 and N2, 705,000.00 were ordered forfeited to the Federal Government of Nigeria treasury. The remaining 28 were convictions for offences of obtaining money by false pretence, forgery, illegal dealing on petroleum products etc.  Similarly within the same period, the Commission filed a total of 108 criminal charges. The Commission has also secured five interim forfeiture Orders and 3 freezing Orders.

Moreover, within the same period, the Commission assisted the Metropolitan Police in the investigation, prosecution, conviction and sentencing of Mr. James Ibori, a former governor of Delta state by the Crown Court at Southwark. London on February 27, 2012, to 13 years imprison for money laundering and fraud. The same goes for the case involving the former Managing Director of Intercontinental Bank PLC, Mr. Ereastus Akingbola before the Royal Commercial Court in London on 31 July 2012 in which the Court ordered the forfeiture of a total sum of approximately N165billion in favour of Access Bank plc (formerly Intercontinental Bank plc). The EFCC played a vital role in the prosecution of the case providing the UK authorities with critical assistance during the course of the investigation. The EFCC’s partnership with the UK authorities in these cases represents best practices in international cooperation as provided by the United Nations Convention against Corruption (UNCAC).

The criminal prosecution of top Politically Exposed Person (PEPs) also continues to receive priority attention of the Commission. This is consistent with its top - down approach to combating corruption. To this effect, five former state governors and a former speaker of House of Representatives including a cabinet Minister were accordingly charged to court between 2011 and 2012 for corrupt practices bordering on contract fraud and/or abuse of office. The trials of these cases are pending and will be concluded soon.

Likewise, in what perhaps can be described as one of the biggest public sector frauds in Nigerian history, some dishonest marketers of petroleum products swindled the Federal government of over N1.71 trillion under the petroleum Support Fund (PSE) Scheme. The sheer magnitude of this monumental fraud ignited and fuelled national protests led by labour unions and civil society organization in January 2012 against the federal government’s proposal to completely remove the fuel subsidy scheme. Even though, further investigation continues, the EFCC has so far investigated and arraigned 13 companies including their management staff and directors in court with a combined sum of N12.4 billion involved. Of this amount, the Commission has so far recovered over N3 billion. 

With the efforts of the Commission and its partners, Nigeria was delisted from the infamous list of non cooperative nations in the fight against corruption and money laundering by the Financial Action Task Force (FATF), the organization responsible for combating money laundering and financing of terrorism.

However, while the EFCC does not have all the powers to eliminate all the conditions that cause corruption, it has been involved in activities that would help eliminate some of the conditions for causing corruption. Apart from its declared goal of arresting and prosecuting corrupt individuals, the current leadership of the Commission aims to expand the fight against corruption beyond the EFCC to what can be described as the “private sphere,” though with normal interface with the public sphere.

Three such areas are worth mentioning. First are the Commission efforts at public enlightenment of youths and young adults. Considering that one of the focal principles of the current leadership of the EFCC is that the fight against corruption can only be won when the society becomes a partner, the Commission has become active in schools to encourage youths to shun corrupt activities.  Second is a periodic engagement with the media with the aim of publicising some of the achievements of the EFCC and its challenges. The Commission, with the help of its Directorate for Media and Public Affairs, is currently in the process of fine-tuning a system that would encourage a continuous reportage of corruption and its manifestations in the Nigerian Press. A good number of journalists have been key to the fight against corruption and have been agents of anti-corruption beyond the rituals of reporting the activities of the Commission alone. Third is its partnership with other key actors in society such the bureaucracy, religious institutions and other private organisations.

At this juncture however, I would like to use this opportunity to discuss a fallacy that has continued to be a feature of the critique of the EFCC by some national and a few international actors in the anti-corruption struggles. It is sometimes assumed that the success of the EFCC should be located only in terms of the number of individuals serving jail terms. This is true and logical but it assumes that the EFCC is the only agency that would determine the incarceration of corrupt individuals. For instance, in spite of the fact that the EFCC did all in its powers to prosecute a former governor of Delta State in Nigeria, Mr. James Ibori in a Nigerian Court, the Commission’s  efforts were  frustrated by the inherent weakness in the Nigerian criminal justice administration and the Nigerian legal system  Fortunately, the EFCC shares the victory with the London court in the prosecution and imprisonment of Mr. Ibori who is now serving jail term in UK owing to the partnership of the Commission with the UK authorities in the case within the context of the best practices espoused in international cooperation provided for by the United Nations Convention against Corruption (UNCAC). Ipso facto, even when the Commission would have preferred to jail corrupt individuals to long prison terms for their crimes against humanity, in the final analysis, it is the judiciary that has the ultimate powers to determine such punishment and conviction.

Concluding Remark: Towards Supporting EFCC’s Anti-corruption War

Anti-corruption should not be the preserve of one agency. It is a societal responsibility and it is this understanding that has propelled the new approach of the EFCC in advocating for more action by the civil society in the fight against corruption in Nigeria. While the EFCC is determined to continue to pursue its goals and objectives, it would simultaneously push the anti-corruption agenda on Nigerians through its current programmes and emerging partnership with key players, particularly the judiciary, the civil society organizations and the media. There must be informal rules to discourage corruption and the building of public awareness on the need to prevent corruption. This would mean more monitoring and evaluation function, educational function, media support and active participation of the public in the creation of anti-corruption environment.

However, the support of the judiciary is particularly important to the work of the Commission. It is also in this context that the establishment of anti-corruption Courts becomes very germane in order to expedite the trial and effective prosecution of corruption cases. Relevant laws should also be passed to limit or prohibit interlocutory appeals that tend to unduly delay the trial of substantive cases. For instance, according to Section 40 of the EFCC Act, an application for stay of proceedings in respect of any criminal matter brought by the Commission before the High Court shall not be entertained until judgment is delivered by the High Court.  Unfortunately, several Judges have refused to uphold this law but instead have continued to grant stay of proceedings of criminal cases which on many occasions have led to frustrate witnesses and speedy trial of cases.

The development of public interest litigation as an integral part of democracy and the functioning of a municipal legal system is perhaps one of the fundamental gains of democratization process that swept through Africa in the beginning of the twentieth century. There is marked increase in judicial activism and a corresponding rise in public interest litigation as issues of social justice and public accountability continue to engage the Courts. Human rights lawyers, particularly, those who tackled the collapsed military dictatorships and non-governmental organizations frequently seek judicial review of executive actions and wrongs committed by public officials or government agencies with a view to protecting human and peoples’ rights and enhancing public liberty, social justice, integrity and good governance.  

According to Black’s Law Dictionary, "Public Interest Litigation means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected." In public interest cases, the right which an individual seeks to enforce may not necessarily flow from a legal wrong and injury suffered by the litigant or a contravention of that person’s individual rights, but in most cases, the litigations are aimed at protecting and promoting collective legitimate human rights and public policy which may be a subject of government violation. Usually, there are no personal gains or private motives for initiating public interest litigation; hence, as a social engineering, the success of public interest litigation is not usually hinged on winning a particular cause of action, but in bringing attention to the violation, sensitizing the public, helping to initiate law reforms while also expanding old rights and creating new ones because the Courts are forced to review and comment on laws and government policies and give appropriate contextual interpretations to them. A government official entrusted with power and public resources has an obligation to be accountable. 

Protection of human rights and the improvement of social and economic rights of the vulnerable people as a critical part of social contract is one of the cardinal and historical objectives of public interest litigation. Public interest litigation is not a new phenomenon even though in Africa, lack of public awareness and opportunity for the enforcement of rights violation, paucity of funds for organizations involved in the defense of human rights and decades of military dictatorship that hounded the judiciary from developing this jurisprudence accounted for its slow pace of development particularly in mid and latter part of the Nineteenth century when most of the African States became independent from their colonial masters. In many parts of Europe and North America for instance, Courts have for centuries, routinely served as an institution, that not only provide legal redress to the citizens but also as an instrument of social change formulating policies and suggesting law reforms for the States. 

 Apart from the municipal Courts who routinely review executive actions on normative human rights, contracting Parties to the European Convention on Human Rights have long incorporated the Convention into their own national legal orders, either through constitutional provision, subsidiary legislation or judicial pronouncements.  The European Convention on Human Rights is an international treaty under which the member States of the Council of Europe promise to secure fundamental civil and political rights, not only to their own citizens but also to everyone within their jurisdiction. The Convention, which was signed on 4 November 1950 in Rome, entered into force in 1953. 

To underscore the importance attached to human rights, the Council of Europe  also established the European Court of Human Rights as a supra- national institution  in 1959 with its location in Strasbourg, France. The Court has jurisdiction to hear cases brought before it by private individuals or State parties alleging violations of the civil and political rights set out in the European Convention on Human Rights. According to the information supplied  by the Court, since its inception as an institution set up  primarily to monitor respect for the human rights of 800 million Europeans in the 47 Council of Europe member States that have ratified the Convention, “the Court has delivered more than 10,000 judgments. These are binding on the countries concerned and have led governments to alter their legislation and administrative practice in a wide range of areas. The Court’s case-law makes the Convention a powerful living instrument for meeting new challenges and consolidating the rule of law and democracy in Europe”.  The court is not part of the European Union and under Protocol no.11 of the Convention. And effective November 1, 1998, the Court became full-time while the European Commission of Human Rights was subsequently abolished. 

Perhaps, it was in an attempt to replicate and create an African version of the Court that the African Union set up the African Court on Human and Peoples' Rights as a continental court to ensure protection of human and peoples’ rights in Africa. Unlike the European Court whose full operation led to the abolishment of the European Commission of Human Rights, the African Court complements and reinforces the functions of the African Commission on Human and Peoples' Rights. According to the information provided y the Court, it  “was  established by virtue of Article 1 of the Rights, which was adopted by Member States of the then Organization of African Unity (OAU) in Ouagadougou, Burkina Faso, in June 1998. The Protocol came into force on 25 January 2004 after it was ratified by more than 15 countries. The Court has jurisdiction over all cases and disputes submitted to it concerning the interpretation and application of the African Charter on Human and Peoples' Rights, the (the Charter), the Protocol and any other relevant human rights instrument ratified by the States concerned”. The Court which started its operations in 2006 and delivered its first decision in 2007 has received about twenty four applications and concluded about eight cases. 

According to the Protocol (Article 5) and the Rules (Rule 33), the African Court may receive complaints and/or applications submitted to it either by the African Commission of Human and Peoples’ Rights or State parties to the Protocol or African Intergovernmental Organizations. 

However, one very unsettling aspect of the African Court is that only Non-Governmental Organizations with observer status before the African Commission on Human and Peoples’ Rights and individuals from States which have made a Declaration accepting the jurisdiction of the Court can also institute cases directly before the Court.. The effect of this is that even if a member State has ratified the Protocol, ratification alone cannot give direct right of access to litigants from that State unless that ratifying State has gone a step further to made a Declaration accepting the jurisdiction of the Court. There is also a super-added pre-requisite of exhaustion of local remedies in the member state’s national Court which is also one of the prerequisites for the European Court to assume jurisdiction. Unfortunately, to date, only five member States have made such Declaration out of fifty –four African member States effectively shutting out its door against millions of citizens from forty-nine States including states. 

It is in the light of this seemingly bizarre and uncanny state of affairs for the enforcement of rights which has made the dream of attaining legal redress for rights violation in the supra-national court in Africa illusionary, deceptive, unobtainable and elusive that Mr. Femi Falana, a Nigerian renowned civil rights leader and former President of West African Bar Association (WABA) dragged the African Union before the African Court in February 2011 to challenge the validity of Article 34(6) of the Protocol which bars individuals and Non-Governmental organizations (NGOs) from accessing this Court, except where a respondent state has made a special declaration accepting to be cited by an individual or an NGO as being in conflict with the certain provision of the African Charter on Human and Peoples' Rights.  Being a senior lawyer and a civil rights lawyer in Nigeria, Falana obviously has clients who would like to approach the Court but he is unable to discharge his duties to them because of the requirement of Article 34(6) of the Protocol.  

However, as can be seen from the case, which is briefed below, the issues presented provided the African Court with an opportunity to address some of the nagging jurisdictional problems that have confronted the operation of the Court since inception and proffer recommendations for reform in order to make the Court more accessible to the vulnerable and disadvantaged peoples of Africa who are supposed to be the ultimate beneficiaries of the Court’s jurisdiction. Regrettably, the Court by a majority decision took a rather parochial and narrow view of the broad issues involved and failed to take advantage of the conundrum presented in the matter of Re: Femi Falana –v- The African Union, Application NO. 001/2011, African Court On Human And Peoples’ Rights, to push for reforms in the jurisprudence.

The issues presented for the African Court ’s resolution in  Re Falana were whether the Court could declare Article 34(6) of the Protocol inconsistent with Articles 1, 2, 7, 13, 26 and 66 of the African Charter on Human and Peoples' Rights, whether the requirement for a State to make a declaration to allow access to the Court by individuals and Non-governmental Organizations was a violation of his rights to freedom from discrimination, fair hearing and equal treatment, as well as his right to be heard and whether the African Court could annul a provision of the Protocol, in particular, Article 34(6) of the Protocol for being inconsistent with the Provisions of the African Charter.

The issues presented for the African Court ’s resolution in  Re Falana were whether the Court could declare Article 34(6) of the Protocol inconsistent with Articles 1, 2, 7, 13, 26 and 66 of the African Charter on Human and Peoples' Rights, whether the requirement for a State to make a declaration to allow access to the Court by individuals and Non-governmental Organizations was a violation of his rights to freedom from discrimination, fair hearing and equal treatment, as well as his right to be heard and whether the African Court could annul a provision of the Protocol, in particular, Article 34(6) of the Protocol for being inconsistent with the Provisions of the African Charter. 

By an application dated 14 February 2011, Femi Falana, human rights lawyer, and former president of the West African Bar Association (WABA) filed a suit against the African Union before the African Court of Peoples  and Human Rights alleging inter alia, that he had made several attempts to get the Federal Republic of Nigeria to deposit the declaration required under Article 34 (6) of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights to no avail. He also alleged that he had been denied access to the Court because of the failure or refusal of Nigeria to make the declaration to accept the competence of the Court in line with Article 34(6) of the Protocol. He further submitted in his action that since his efforts to have Nigeria make the declaration had failed, he decided to file a lawsuit against the African Union as a representative of its 54 Member States. 

Lastly,  Falana, , sought amongst others,  a declaration that Article 34(6) of the Protocol on the Establishment of the African Court is illegal, null and void as it was inconsistent with Articles I, 2, 7, 13, 26 and 66 of the African Charter on Human and Peoples' Rights; a declaration that he was entitled to file human rights complaints before the African Court by virtue of Article 7 of the African Charter on Human and Peoples' Rights and an Order of the African Court  annulling Article 34(6) of the Protocol for its inconsistency with the provisions of the African Charter on Human and Peoples' Rights.

The Respondent, African Union, in its preliminary objection opposing the jurisdiction of the Court maintained that it was not a party to the African Charter, nor to the Protocol and that therefore, no case could be brought against it for obligations of Member States under the Charter and the Protocol, in its corporate capacity. The African Union also argued amongst others, while urging the Court to uphold its preliminary objection and dismiss the case, that the Protocol was not adopted by the African Union but by its Member States, as evidenced in the preamble to the Protocol, that the African Union is not a party to the Protocol and that the Protocol in Article 34(6) talks about a State, and the African Union not being a state, could not ratify the Protocol.

The African Union also argued that the ratification of treaties by Member States of the African Union has never been ceded to the African Union by its Member States and that the African Union could not be held liable for failure by the Member States to ratify the Protocol or to make the requisite declaration, and therefore, no case could be brought against it for obligations of Member States under the Charter and the Protocol in its corporate capacity stating further that the African Union could not assume obligations of sovereign Member States which have sovereign rights when ratifying the Protocol and making the declaration.

 In a split decision of seven to three, majority of the Court did not answer any of the questions but held, dismissing the case, that in terms of Articles 5(3) and 34(6) of the Protocol, read together, the Court had no jurisdiction to hear the case instituted by Femi Falana against the African Union.

In arriving at its decision, the Court undertook a brief and tapered analysis of public international law without attempting to answer any of the questions presented for determination, to wit: whether the Court could declare Article 34(6) of the Protocol inconsistent with Articles 1, 2, 7, 13, 26 and 66 of the African Charter on Human and Peoples' Rights, whether the requirement for a State to make a declaration to allow access to the Court by individuals and Non-governmental Organizations was a violation of his rights to freedom from discrimination, fair hearing and equal treatment and whether the African Court could annul a provision of the Protocol, in particular, Article 34(6) of the Protocol for being inconsistent with the Provisions of the African Charter.

Rather, the Court while acknowledging that the African Union is a subject of international law and capable of possessing international rights and duties concluded that in principle, international obligations arising from a treaty cannot be imposed on an international organization, unless it is a party to such a treaty or it is subject to such obligations by any other means recognized under international law. That as far as an international organization is not a party to a treaty; it cannot be subject to legal obligations arising from that treaty quoting Article 34 of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations.

The minority opinion disagreed with the reasoning of the majority and reasoned, though dismissing the case for another reason, that by reason of the African Union having been empowered, and charged with the obligation by Member States to administer, apply and enforce the Charter and the Protocol, both of which form the subject matter of this case, the African Union has in any case a material and direct interest in the case and therefore had to be cited.

On the relationship between the Charter and the Protocol, the minority Court adopted a wider approach to the question reasoned, very correctly that the Charter ranks higher than the Protocol and held the provision of the Protocol inconsistent with the enabling Charter. The minority Court agreed with Falana that “to the extent that Article 34(6) denies individuals direct access to the Court, which access the Charter does not deny, the Article, far from being a supplementary measure towards the enhancement of the protection of human rights, as envisaged by Article 66 of the Charter, does the very opposite. It is at odds with the objective, language and spirit of the Charter as it disables the Court from hearing applications brought by individuals against a state which has not made the declaration, even when the protection of human rights entrenched in the Charter, is at stake. We therefore hold that it is inconsistent with the Charter. We do so well aware of Article 30 of the Vienna Convention on the Law of Treaties regarding the application of successive treaties relating to the same subject matter. It is our view that this Article finds no application in the case before us”

Finally, the minority Court held that the Court has jurisdiction to hear Falana’s application and that Article 34(6) of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights is inconsistent with the African Charter on Human and Peoples' Rights. The minority Court however, denied Falana’s prayer that the Court declared Article 34(6) null and void in the hope that the problems created by the Article would receive appropriate remedy from the African Union.

The African Court in Re: Falana failed to take advantage of the expansive issues presented to write an advisory Opinion which would have ignited public debate about the future of the Court and form the basis for jurisprudential reform. This way, the problems raised by Article 34(6) could have received public attention and probably appropriate remedial consideration. For instance, one of the questions that will continue to beg for answer before the Court is the relationship between a Protocol and Charter and in the event of the two contradicting one another on the same subject matter as is the case with the African Charter and its Protocol, which one prevails? Albeit, it is trite in international law that a Protocol is subservient to a Charter.

The least the majority Court could have done was to determine whether or not Article 34(6) is inconsistent with the Charter. This is a matter of interpretation which the Court is competent to do in terms of Article 3(1) of the Protocol. In municipal law, where the constitution is the supreme law, any law inconsistent with the Constitution would be declared null and void by the Courts because the Courts derives their power to do so from the Constitution which is the ultimate law of a state. If an article of a Protocol is inconsistent with a similar provision of the Charter, the Court should treat it the same way without violating the principles of public international law; but the African Court was reluctant to declare Article 34(6) of the Protocol null and void and or to set it aside presumably because the Court itself, being a creation of the Protocol could go on a voyage of self extinct by so doing having been entrapped in the jurisprudential web.

In addition, the provision of Article 34(6) of the Protocol which bars individuals and Non-Governmental organizations (NGOs) from accessing this Court, except where a respondent state has made a special declaration accepting to be cited by an individual or an NGO is not only inconsistent with the African Charter of Peoples’ and Human Rights, but it is also repugnant to natural justice, equity and good conscience because the article calls for the state who may be the potential respondent in a rights violation application with legal consequences to declare to be bound by the decision of the Court which might end up being unfavorable to the state.  The state has the cake and the knife as far as Article 34(6) of the Protocol is concerned.

Ratification by a member state should have been the only requirement for binding the state just as it is the practice at the European Court of Human Rights. A treaty becomes part of the municipal law of a nation only when the treaty has been ratified and no further steps are necessary for the enforcement of the treaty in the municipal Court.  Further, the protection of human rights is too important to be consigned into the whims of the political class or entrusted to the care of public officials who are the potential torturers and expect them to make a declaration to be bound by the decision of the Court. Such an assumption is not only presumptive and preposterous; it also makes the whole essence of establishing the Court non-justiciable, idealistic and impracticable. 

Nigeria for instance, has ratified both the Charter and the Protocol and domesticated the Charter as a municipal law enforceable and binding in Nigeria, but because Nigerian government has not made a declaration to be bound by the decision of the African Court, the Court cannot open its doors to victims of human rights violation in Nigeria and Nigerians involved in public interest litigation to advance the cause of human rights before the Court. As noted in this paper, only five States out of fifty four have made the declaration thereby making the Court out of bound to citizens of forty-nine African States which in effect, would also lead to judicial redundancy and idleness by the Court personnel in the face of wanton rights violations going on in Africa. The implantation of Article 34(6) into the Protocol is therefore a Trojan horse for making the enforcement of fundamental rights in the African court a whimsical fantasy.

Unfortunately, the African Court has no appellate jurisdiction, so the matter as it were, has reached its finality as the Court has failed to leave its door ajar for free access to justice. Conversely, the novel challenges posed by the Decision in Re: Falana are far from being over unless the African Union is not fully committed to the guarantee of fundamental rights for all in Africa.

On June 19, 2012, the House of Representatives passed a simple resolution condemning the regular occurrence of violence and persistent suicide bombings in some parts of Nigeria which have created an atmosphere of fear and general insecurity across the country. Specifically, the House condemned the recent deadly clashes between Boko Haram and security operatives in some parts of the North and finally, in the same resolution, it invited President Goodluck Jonathan to appear before it in his capacity as the Chief Security Officer of the country together with the National Security Adviser. All heads of security agencies in the country were requested to present a report to the House on the prevailing security challenges and what the National Security Council has been doing to combat them.

Generally speaking, resolution is a law introduced in either the House of Representatives or the Senate, but unlike bills, they may be limited in effect to the National Assembly or either of both chambers. There are three types of resolutions namely, Simple resolution, Concurrent resolution and Joint resolution. A simple resolution, by its very nature, deals with the operation, rules or opinions of either the House of Representatives or the Senate alone and it is considered only by the chamber in which it was introduced. Simple resolutions are non-binding in nature and do not require the approval of the other chamber. Upon adoption, simple resolutions are attested to by the Clerk of the House of Representatives or the Senate and published in the official gazette. A concurrent resolution relates to the operations of the National Assembly affecting both chambers, and the collective opinion of both chambers on public policy issues or any matter of national importance.

A joint resolution unlike the simple and concurrent resolution is a law mutually or collectively passed by both chambers even though it can originate from either chambers of the National Assembly. A piece of legislation introduced as a bill can be amended by a joint resolution of both chambers of the National Assembly. Under the presidential system, all joint resolutions must be signed by the President except in the United States where a joint resolution to amend the Constitution does not require the assent of the President but it is submitted to the Archivist of the United States for presentment to the component states for ratification by the legislatures of three-fourths of the states.

However, the issue involved in the resolution passed by the House of Representatives and the question presented for legal consideration are not the power of the House to pass resolutions; rather, the question is whether the House has constitutional power to invite the President and his security chiefs to the floor of the House for the purpose of addressing the security challenges affecting lives and property in the country.

To start with, it is a fact that violent crime remains one of the biggest challenges in Nigeria. This has escalated to an unparalleled level in recent times. The inability of the appropriate authority to arrest and bring criminals to justice has added incentive to crime perpetration and criminal behavior. According to a concerned writer in the Nigerian Tribune of October 21, 2011, “There is no doubt that the development of any society is largely hinged on the extent of the security of lives and properties of its citizenry. While a thoroughly secure atmosphere breeds intellectual minds that are great assets to nation-building, it also allows an enduring environment for the growth of infrastructural development. Nigeria’s current security system cannot but be porous, given its state. Security agencies in any advanced country are not run the way we run ours”.

The national security concern was also corroborated by the 2011 United States State Department Human Rights Report on Nigeria where it lamented, inter alia, that, “the most serious human rights problems during the year were the abuses committed by the militant sect known as Boko Haram, which was responsible for killings, bombings, and other attacks throughout the country, resulting in numerous deaths, injuries, and the widespread destruction of property; abuses committed by the security services with impunity, including killings, beatings, arbitrary detention, and destruction of property; and societal violence, including ethnic, regional, and religious violence. Boko Haram increased its attacks on police and security forces, banks, bars and restaurants, religious sites, and government buildings in the north and Abuja. Shootings and bombings in Maiduguri, Borno State, occurred on a weekly–and sometimes daily–basis throughout the year, and violence spread to neighboring Yobe, Bauchi, and Adamawa states by year’s end. Targeted attacks on key institutions and buildings in Abuja contributed to an increase in the overall level of violence”.

The Report further accused the security operatives of ineptitude, incompetence, high-handedness and extra-judicial killings. It stated that military personnel and the Mobile Police Unit carried out summary executions, assaults, and other abuses across the country. The Police, the army, and other security forces, it stated, committed extra-judicial killings and used lethal and excessive force to apprehend criminals and suspects, as well as to disperse protesters while authorities generally did not hold police accountable for the use of excessive or deadly force or for the deaths of persons in custody. It also accused the Police of operating with impunity in the illegal apprehension, detention, and sometimes execution of suspects and the reports of state or federal panels of inquiry investigating suspicious deaths remained unpublished.

Ostensibly worried by this worsening security situation in the country, the House of Representatives passed the resolution in question. Unfortunately, the resolution which is legally within the competence of the House is now being regarded in some quarters, particularly by those who take an expansive view of the presidential powers, as an extra-constitutional move “against the doctrine of separation of powers, checks and balances, which strengthen the 1999 Constitution”.

As a rule, no President wants to appear before the National Assembly even in the most advanced democracies other than presenting the Appropriation Bill or presenting a ceremonial address before the joint sitting of both chambers of the National Assembly. The fact, however, is that there is nothing extra-constitutional about the House or any of its committees inviting the President to appear before it in his capacity as the chief security officer of the country as a further step towards assuring the country and foreign investors of his efforts at combating crime and making the country safe for all to live in.

While there is no doubt that the President can keep certain matters to himself and he is not required by law to share all information at his disposal with the National Assembly or its committees, however, when such information concerns the safety and security of the nation or any information that can affect the corporate existence of the country as a whole, the President should disclose it to the National Assembly in the interest and the well-being of the nation. Politically, this is essential for the following reasons: The House has a representative function and as the elected delegates of the people, it is its duty to frequently examine the state of the nation and give effect to the wishes and aspirations of the people through debates, motions, resolutions and the enactment of requisite laws. In addition, the House is the principal instrument of government that represents geographic, economic, religious, ethnic, cultural and other public interests and it is responsible for sensing, determining, balancing, harmonizing and satisfying a vast number and variety of often competing and conflicting demands.

Constitutionally, it is the duty of the legislature to act as a check and balance over the Executive including the judiciary. They ought to constantly review, evaluate, monitor, supervise, query and where necessary censor executive activities. It is also the constitutional duty of the House to ensure that state resources are being deployed by the executive efficiently and in the most effective manner possible. Conventional separation-of-powers concerns would not carry the day and cannot occupy the field in an oversight matter because the Constitution specifically envisages that the legislative branch performs oversight functions over the executive. A broad reading of Section 88 of the 1999 Constitution will support this proposition. In a nutshell, Section 88 of the 1999 Constitution gives each House of the National Assembly the power to conduct investigation on any matter or thing with respect to which it has power to make laws and conduct affairs of any person, authority, ministry or government department charged or intended to be charged with the responsibility for executing or administering laws enacted by the National Assembly and disbursing or administering funds appropriated or to be appropriated by the National Assembly.

Under the presidential system of government, the executive arm is unipersonal. The President is both the head of government and commander-in-chief of the armed forces. All ministers and heads of other agencies of government serve at his pleasure and must carry out the policy and vision of the President. While ministers and other appointees of the President can be fired or reshuffled at any time before the expiration of the term or tenure of the President, the President is the only one that holds a fixed or specific term and cannot be replaced before the expiration of his term unless impeached by the National Assembly in accordance with the provisions of the Constitution. The President is a constant figure and the symbol of the executive and perhaps also the only one with the repository of knowledge and information regarding all the ministries, departments and agencies under the executive branch. However, due to the doctrines of checks and balances and separation of powers, it is the National Assembly that controls the power of the purse through authorizing legislation and appropriation of federal spending to carry out government activities.

The oversight power of the House of Representatives or the Senate is therefore an essential check in monitoring the Presidency, holding the President accountable and controlling public policy. If the drafters of the 1999 Constitution had intended to exclude the President from the ambit of oversight functions of the House under Section 88, they would have done so expressly, but instead, the drafters unequivocally included all and “any person, authority, ministry or government department charged or intended to be charged with the responsibility for executing or administering laws……and disbursing or administering monies appropriated or to be appropriated by the National Assembly” under the oversight functions of the House”.

The wordings of Section 88 of the 1999 constitution are all inclusive and encompassing. It did not exempt the President as the chief executive unless the President can establish that he does not disburse money appropriated by the House of Representatives or the National Assembly as a whole for the defense and security of the country even though it is a fact that a major percentage of the national budget is set aside each year by the National Assembly as security votes to be spent on national security and other relevant sub-heads by the President. Interestingly, Section 80 (1)-(4) is unambiguous on the infinite authority and power of the National Assembly to pass the Appropriation Bill. Section 81(1) stipulates that “the President shall cause to be prepared and laid before each chamber of the National Assembly at any time in each year estimates of the revenues and expenditures of the Federation for the next following financial year.” It is clear that it is the President that initiates the annual budget, which goes through the National Assembly appropriation processes.

No other officer in the executive arm can perform this constitutional function and if any officer who is just an agent of the President can be invited to the parliament and be held accountable for the disbursement of funds or the execution of laws passed by the National Assembly, there is no reason why the President, being the principal, cannot face a similar treatment as the chief accounting officer. It is therefore, not within the contemplation of Section 88 of the 1999 Constitution to exempt the President from oversight function. And the Constitution under Section 308 did not grant the President any such immunity either. Hence, the House of Representatives oversight functions can take any form including having informal meetings with the President to discuss the security challenges or formal consultations with and receiving security reports or briefings from him.

The oversight functions of the National Assembly protect civil liberties and individual rights; ensure executive compliance with the law; gather information for making laws, educate the public; and evaluate executive performance. Most importantly, they apply to ministries, departments, agencies, commissions and the Presidency as well.

It is also very pertinent to note that the National Assembly and the President have a shared responsibility for national security and the well-being of the nation. Defense and national security are on the exclusive legislative list. According to Section 4 (2) of the 1999 Constitution, “The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution”, and in Section 305, the Constitution provides that: Subject to the provisions of the Constitution, (1) “the President may by instrument published in the Official Gazette of the Government of the Federation issue a Proclamation of a state of emergency in the Federation or any part thereof. (2) The President shall immediately after the publication, transmit copies of the Official -Gazette of the Government of the Federation containing the proclamation including the details of the emergency to the President of the Senate and the Speaker of the House of Representatives, each of whom shall forthwith convene or arrange for a meeting of the chamber of which he/she is President or Speaker, as the case may be, to consider the situation and decide whether or not to pass a resolution approving the Proclamation”. Thus, the President being the commander-in-chief is in possession of the national security information and general principles of oversight and accountability underlying the separation of powers which require that the House of Representatives and the Senate be fully informed or briefed concerning such information.

The authority of the House of Representatives to obtain information from the President therefore, stems from the explicit constitutional provisions of authority to the House such as the power to legislate and to appropriate all funds for the maintenance of security, law and order in the country. This power requires information in the possession and knowledge of the presidency. In addition, general principles of oversight and accountability underlying the separation of powers also require that the National Assembly be fully informed concerning such information. Hence, the House of Representatives cannot be left in the dark on security matters and it is the duty of the President to inform it either formally or informally depending on the mode the House prefers. While nobody will contest the fact that information regarding the national security has to be protected and classified, it is important to state that the National Assembly has the right to be informed by the President on the state of the national security and measures being put in place to address the security problems to avert a national disaster. And the President can be required to do this personally or by sending his security chiefs to address the House on the matter.

Proponents of the expansive powers of the President may advise him to resist the invitation of the House which might impair the image of the President answering no-hold back questions in the belly of the hallowed chamber and the explosive nature of such a high-stake unscripted encounter. The truth, however, is that the House of Representatives or its Security or Armed Forces Committee can summon the President as the chief security officer of the country. This is not a new phenomenon under the presidential system of government; even in the United States of America, there were occasions in the past when US Presidents attended House hearings on invitation or summons.

According to the US Senate Historical Office, two presidents and one vice-president testified before congressional committees prior to Gerald Ford. President Abraham Lincoln appeared before the House Judiciary Committee on February 13, 1862, to testify on the premature publication in the New York Herald newspaper of a portion of his Annual Message to Congress on the same morning that it was sent to Capitol Hill. A correspondent for the newspaper was a close friend of Mary Todd Lincoln, and many assumed that the first lady was the source of the leak. Lincoln assured committee members that no member of his family was involved.

Ulysses S. Grant’s vice-president, Schuyler Colfax, testified before the House Select Committee to Investigate the Crédit Mobilier scandal in January 1873. President Woodrow Wilson testified at the White House before members of the Senate Foreign Relations Committee on August 19, 1919, concerning the Treaty of Peace with Germany and establishment of the League of Nations. According to the Senate record, the president opened by reading a statement and then answered questions for three-and-a-half hours, after which he invited committee members for lunch. Despite Wilson’s efforts, the Senate twice rejected the Treaty of Versailles, and the United States never joined the League. President Bill Clinton also testified at his Senate impeachment trial where he was decisively acquitted having been previously impeached by the House of Representatives.

Wednesday, 30 May 2012 12:53

Salami: Overcoming The Arbsurdity

The non-implementation of the decision of the National Judicial Council (NJC) to recall the suspended President of the Court of Appeals, Justice Ayo Salami underscores the appalling intersection between politics and rule of law and the influence (or superiority?) of the former over the latter. Politics protects interest while the rule of law protects rights and it is generally believed that in the realm of things, a man would fight harder to protect his interest than he would to defend his rights. Therefore, when there is a clash between both, it is always accompanied by a host of paradoxes guided by parochial and insular tendencies.

To start with, there is no hope for the promotion of rule of law in Nigeria if law is not invoked automatically without political considerations or if the interpretation of law is made a subject of political expediency or group convenience. Therefore, from legal and constitutional standpoint, the controversy surrounding Justice Salami's suspension and eventual reinstatement stems from the gravely erroneous assumption  and absurdities created by the political interference in the work of the judiciary and the administration of justice in Nigeria. Hence, the only body to resolve the absurdity which has become one of the most vexed contemporary issues in Nigeria today is the NJC.

The absurdity does not arise from the Constitution because the Constitutional provision is very clear and unambiguous on the powers of the NJC to suspend a judicial officer.  The reason, for this is simple:  the framers of the Constitution in their bid to ensure the independence of the judiciary limits the powers of the president only to appointment and removal while creating special procedures for both. For instance, when the President wants to remove a judge on the recommendation of the NJC, he would send the request to the Senate for approval, the same way he would do for the confirmation of a judge. The framers of the Constitution knew that if the president has to be involved in everyday summary discipline of judges, the judiciary will become an appendage of the executive in addition to the fact that the President may have his own extra-judicial priorities and interests which can weigh very heavily in his decisions and ultimately impact judicial independence, obstruct justice and rule of law.

The power to suspend a judge under the 1999 Constitution (as amended) is vested on the NJC, not the President. The Constitution in the Third Schedule, Part 1 par 21 states that : " the National Judicial Council shall have power- (b) to recommend to the president the removal from office of the judicial officers specified in sub-paragraph (a) of this paragraph, AND TO EXERCISE DISCIPLINARY CONTROL OVER SUCH OFFICERS " (emphasis added).

What this boils down to mean is that the NJC does not have to involve the president in its decision to suspend or reinstate a judicial officer, beyond asking the president to appoint an acting President of the Court of Appeal ( if the judicial officer is the Chief Judge of the Federal high court, the President of the  Court of Appeals  like Justice Salami or  the Chief Justice of the Federation) and formally  notifying the President  (the appointing authority) of its decision to reinstate for the purpose of stopping any further appointment in acting capacity bearing in mind that it is the same NJC that would also make the recommendation to the President  for the continuity of the person so acting after the expiration of the initial period of 3o days in acting capacity if the judicial officer is still under suspension.

 The legislature is aware that a person not occupying the position in substantive capacity does so temporarily, hence, makes such appointment renewable every ninety days in the hope that the suspension of the substantive holder will not constitute a permanent action.  From that analysis, it is clear that the NJC enjoys a measure of independence and it is at liberty to make certain determinations including the discipline of judicial officers without notifying the President for his approval and it has done so for several years without executive intervention. So what the NJC did in the case of Justice Salami was to communicate its decision to the President who had already appointed someone t o act as the President of the Court of Appeals and to put the President on notice that renewal of the appointment of the acting President is no longer necessary. Otherwise, if Justice Salami had been a judicial officer not holding the position of the President of the Court of Appeals, the Chief Judge of the Federal High Court or the Chief Justice of the Federation, the NJC would not have been required to intimate the President of its routine disciplinary action.

What is therefore, happening now, that the President must approve the decision of the NJC to reinstate a judicial officer is not within the contemplation of the 1999 Constitution (as amended). Such an interpretation would amount to a brazen violation of the Constitution because the President does not have powers to do so under the principle of memo dat quon non habet . No one gives what he does not have and all acts, whether by the executive, legislature or judiciary must be in accordance with the law, not beyond their powers, to be legitimate and validly executed.

Unfortunately, the Presidency through the office of the Attorney-General of the Federation has given various reasons why the President would not “approve” the recommendation citing rule of law, subjudice and pending court cases challenging the NJC's .action thus creating an impression that the NJC’s power of discipline of judicial officers under the 1999 Constitution (as amended) is subject to the approval of the President. If that position is true, where then is the separation of powers?  With due respect, the Attorney-General’s position is preposterous without any legal support. Even assuming arguendo, that the President processes such powers, the pending cases are either moot and have become merely academic because there is longer  an actual  controversy for the Courts to determine by virtue of the reinstatement action by the NJC (if they were filed by Justice Salami himself) or of no consequence to the decision by the NJC to reinstate Salami pursuant to the powers conferred on it by the Constitution (if filed by interlopers and people without “locus standi” under the law).

According to Femi Falana, former President of West African Bar Association (WABA) while responding to this controversy in an interview with The Nation, one of the country’s leading newspapers: “If you look at the powers of the NJC; the NJC is empowered to investigate judges and exercise disciplinary control over them. But when it comes to removal or dismissal, it is the appointing authorities that can do that. It is like the Civil Service, if you are being investigated, you are interdicted and once the investigation is completed and nothing is found against you, that is the end of the matter. If he had been indicted, then the President would have been asked to remove him. It is the sole responsibility of the NJC and that is why I’m saying it has never happened in the history of Nigeria”. 

Government must adhere to the provisions of the law if our claim to be a country governed by the rule of law is to be taken with any modicum of sincerity and respect by the international community. We cannot invent a Nigerian brand of rule of law and clog our judiciary with political actions and expect the world not to laugh at us. According to Prof. Emmanuel Omo Esiemokhai in his Article, “The Rule of Law in Nigeria”, “the rule of law is a shield against discrimination, xenophobia and other reactionary minded tendencies. Due process hinders those who want to cut corners in order to reap where they did not sow" quoting from the late justice Taylor in Olayori's case, (1969), 2 All.N.L.R p.308 that " if we are to have our actions guided and restrained in certain ways, for the benefit of the society in general and individual members in particular, then whatever status, whatever position we hold, we must succumb to the rule of law. The alternative is anarchy and chaos...".  That is what will make Nigeria a decent country (not a society of jesters) where the rule of law is sacrosanct. As the late Chief Justice Sir Adetokunbo Ademola would say, "as soon as you accept that man is governed by law and not by whims of man, it is the rule of law".

The way forward?  The United States v. Kirby, 74 U.S. 482 (1868)[, was a case in which the Supreme Court of the United States held that statutes must be construed reasonably and interpretations that promote absurdity must be avoided in order to avoid injustice and oppression. The Justices of the US Supreme Court held in the case “that all laws should receive a sensible construction," and that literal interpretations which "lead to injustice, oppression, or an absurd consequence" should be avoided. The Court further held that  “the  common sense of man approves the judgment mentioned by Puffendorf, that the Bolognian law which enacted, "that whoever drew blood in the streets should be punished with the utmost severity," did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit. The same common sense accepts the ruling, cited by Plowden, that the statute of 1st Edward II, which enacts that a prisoner who breaks prison shall be guilty of felony, does not extend to a prisoner who breaks out when the prison is on fire - "for he is not to be hanged because he would not stay to be burnt." That is an absurdity defined and how to resolve an absurdity in a nutshell.

However, as I noted earlier, there is no absurdity in the 1999 Constitution regarding the disciplinary powers of the NJC over judicial officers. The NJC in accordance with the Constitution had disciplined Justice Salami and invoking the same Constitutional provision, the NJC has decided to recall him. Technically speaking, Justice Salami has been recalled having concluded that the provision of the Constitution giving the NJC power to discipline a judicial officer is not subservient to the whims of the President and the NJC has exercised its power of recall. There is no absurdity in the NJC’s decision to notify the President, who is the appointing authority (of the President of the Court of Appeal) that it has recalled Justice Salami; the only absurdity, as I said earlier, being the misinterpretation of the NJC’s action by the political class. Once the NJC has decided to recall a suspended judicial officer in exercise of its powers under the Constitution that is the end of the matter and no further action is required to effect its decision.

The powers of the NJC in this regard have never been a subject of controversy until now when the political class have seen an opportunity to mucky the water for the NJC. Just like Femi Falana said, supra, “when there is a recommendation for removal of a judge, that is when the President or governor comes in because they are the appointing authorities. But with respect to investigation, it is the responsibility of the NJC to suspend and return a Judge if no indictment. ….. I have challenged any lawyer in Nigeria to show the provision of the Constitution that empowers the President to interfere or intervene in the investigation of a judge. There has not been a single instance where the President or the governor endorses suspension is established”.  Falana’s position has not only been endorsed by the Nigerian Bar Association, the former Chief Justice of Nigeria, Hon.  Justice Uwais, (Rtd),  also stated in a recent interview with the Channels TV that “ the Chief Justice of Nigeria way back last year (2011) appointed a committee on Judicial Reform. I was the chairman and the committee recommended the reinstatement of Justice Salami and that is my position….from legal point of view, the suspension of a Judge, the power to do so is given to the National Judicial Council not the President…..once the NJC decides he should be recalled, then he should be recalled by the NJC, not the President”.

 In conclusion, the NJC must take a principled approach with regard to the manifold stalemate being created by the political class and assert its power under the Constitution by sending a formal letter of reinstatement to Justice Salami directing him to resume his duties as the President of the Court of Appeals without any further delay. This is not only the Constitutional route and the intendment of the legislation, it is also just, fair and equitable. The controversy is not helping the image of Nigeria and any further delay in the implementation of its decision or anything done to give the coloration of executive approval of its disciplinary powers will demonstrate clear and blatant disregard for the concept of the independence of the judiciary and the rule of law in Nigeria.

A Federal High Court in Lagos, Nigeria recently dismissed the corruption charges filed by country’s anti-graft Agency, the Economic and Financial Crimes Commission (EFCC) against the former Managing Director of Intercontinental Bank, Erastus Akingbola for lack of diligent prosecution and discharged the accused on all the charges before his Court. In the same vein, the trial judge, Justice Charles Archibong sanctioned the prosecuting attorneys led by five Senior Advocates including the President of the Nigerian Bar Association (NBA) and directed the Attorney-General of the Federation and Minister of Justice, Mohammed Adoke, to disband them accordingly while describing them as a drain in the public purse. Other Senior Advocates involved in the prosecution of the case are Emmanuel Ukala, Konyinsola Ajayi, Kola Awodein, and Damien Dodo.

 Every defendant in a criminal case has the right to a speedy trial and the right arises from the time the government has arrested, indicted or formally filed a criminal complaint against a person. The speedy trial right is "an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibility that long delay will impair the ability of an accused to defend himself." Dickey v. Florida, 398 U.S. 30, 37–38 (1970).   In addition, if a trial is delayed for a long time, it may cause prejudice to the defendant; witnesses may become weary or start to disappear, memories may begin to fade or entirely lost thereby affecting the ability of witnesses to recall evidence as passage of time “may blur the memories of the witnesses leading to an unjust verdict”, death or insanity or other mental disability of key witnesses after a long delay. Crucial evidence may also be lost or destroyed in the process.

Even though, the right that is being protected is the defendant's right not to have a prolonged wait between arrest or indictment and the trial, the right to a speedy trial is also in the best interest the prosecutor and the general public as it reduces the cost of prosecution - defendants in government custody must be supported at considerable public expense. 

Courts look for certain factors when deciding whether a defendant’s rights to a speedy trial have been violated.  In Barker v. Wingo, 407 U.S. 514 (1972), the U.S Supreme Court laid down a  four-part case-by-case balancing test for determining whether the defendant's speedy trial right has been violated in the case. The four factors are: Length of delay: a delay of a year or more from the date on which the speedy trial right attaches  was termed "presumptively prejudicial," but the Court has never explicitly ruled that any absolute time limit applies;  reason for the delay: the prosecution may not excessively delay the trial for its own advantage, but a trial may be delayed to secure the presence of an absent witness or other practical considerations; time and manner in which the defendant has asserted his right: if a defendant agrees to the delay when it works to his own benefit, he cannot later claim that he has been unduly delayed and lastly, the degree of prejudice to the defendant which the delay has caused.

However, on the length of delay, there is really no clear or absolute time limit that is considered too long of a delay. Generally, it is presumed that a defendant is denied a speedy trial if there is a delay of a year or more from the date of indictment or arrest. The government may overcome this presumption by giving showing a good cause for the delay as long as the prosecutor has not been negligent in the prosecution of the case. In addition, if the defendant is out of custody then, his trial may take a much longer time as the Attorney General may require additional time to make a filing decision.  For instance, in most serious high profile cases particularly, where the defendants are out of custody, prosecution may last several months or even more than a year because the interest of both the public and the defendant in obtaining a speedy trial is outweighed by the need to insure adequate time to properly gather, review and act upon the extensive evidence, documents and other discovery materials which may be located around the world. Under such circumstances, a long delay from the indictment to the trial of the defendant would be excludable or excusable delay for purposes of determining whether or not the defendant’s right to a speedy trial has been violated.

In some jurisdictions, the following delays are also excusable and are  excluded in computing the time within which trial must commence:  any period of delay resulting from other proceedings concerning the accused, including but not limited to: delay resulting from an examination of the physical and mental condition of the accused,  delay resulting from proceedings with respect to other criminal charges against the accused,  delay resulting from extraordinary remedies against interlocutory orders, delay resulting from pre-trial proceedings and any period of delay resulting from the absence or unavailability of an essential witness. Under the U.S Speedy Trial Act, 18 U.S.C. § 3161(h)(1)(F), 1974, certain pretrial delays are automatically excluded from the Act's time limits, such as delays caused by pretrial motions. In Henderson v. United States, 476 U.S. 321, 330 (1986), the U.S Supreme Court held that the  Speedy Trial Act excludes "all time between the filing of a motion and the conclusion of the hearing on that motion, whether or not a delay in holding that hearing is 'reasonably necessary.”

In addition, the defendant’s own action such as filing frivolous motions or requesting prolonged adjournments to delay his trial and extend the pretrial phase of his case cannot be used in computing the length of delay for the purposes of determining whether his right to a speedy trial has been violated because a defendant may not and cannot benefit from his own delinquency or aggregate wrongdoing.

By and large, for a defendant to benefit from his right to a speedy trial, the defendant must be proactive in asserting his speedy trial rights at the initial stage of the pretrial proceedings; otherwise, he may presumptively waive his rights. He should not accept prolonged adjournments or agree to several pretrial delays by the prosecution or even the Court and later come back to complain against the violation of his right. Even though, in many jurisdictions, the right to a speedy trial is statutory and may not be directly waived, a defendant’s conduct, larches and acquiescence and filing frivolous pretrial motions can be very crucial in determining whether speedy trial rights have been violated by the prosecution. In most cases, these conducts are regarded as a waiver of a defendant’s speedy trial rights.

Even though the defendant is not required by law to assert his speedy trial right before trial, it is advisable to do so as failure to make such an affirmative request may affect his motion challenging the violation of his rights.  Flowing from above, it presupposes that dismissal for violation of speedy trial rights must be based upon a motion by the defendant, not by the court Suo motu (on its own motion) just because the judge was in a way annoyed with the slow speed of the prosecution. The Court in dismissing a case for violation of speedy trial rights of the defendant must consider whether such violation has prejudiced the defendant.  In United States v. Loud Hawk, 474 U.S. 302 (1986), the Court held that a 90-month delay occasioned by interlocutory appeals did not weigh against the prosecution for the purpose of speedy trial rights of the defendant. The US Supreme Court further held that the possibility of prejudice occasioned by the delay was not sufficient to establish a Sixth Amendment speedy trial violation. Moreover, the courts of appeals routinely reject Sixth Amendment speedy trial challenges in the absence of a showing of prejudice to the Defendant.  Even where the Judge is inclined to dismiss a case pursuant to the speedy trial violation, the Judge must consider various factors in determining whether to dismiss with prejudice or without prejudice. One of the factors includes the seriousness of the offense, the circumstances leading to dismissal, and the impact that a new prosecution would have on the administration of justice and the criminal justice system.

A defendant's right to a speedy trial has constitutional and statutory foundation. Unfortunately, under the Nigerian legal system, there is no Constitutional provision that guarantees a defendant’s right to speedy trial or provides for specific time limits for the set specific time limits for initiation of trial  or computation of time within which a criminal trial must occur unlike in other jurisdictions such as the United States where the Sixth Amendment to the Constitution and the Speedy Trial Act set forth rights related to criminal prosecutions. The Sixth Amendment to the U.S Constitution stipulates that  in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committee”  while the Speedy Trial Act of 1974  establishes time limits for completing the various stages of a federal criminal prosecution.  All the US states also have similar statutory provisions which provide for very specific time limits criminal trials.

 To the contrary, there is no statute to determine the computation of time in Nigeria; so who determines when the speedy trial period would run and expire?  Therefore, criminal trials in Nigeria can take several years to conclude due to the defendants taking undue advantage of “motion conundrum”; that is the pretrial period for filing pretrial motions which in many cases can delay a criminal trial by several years.  Most of the delay during the “motion conundrum” is usually at the instance of the defense who may not want the case to proceed to trial for the reason that the defendant may not want the Court to pronounce his guilt.  Again, in very serious crimes, speedy trial is not always beneficial to the defendant as he may not be able to prepare adequately for the trial and it is usually regarded as an invitation to guaranteed conviction in the face of a formidable prosecution and overwhelming evidence.  For example, after about 159 months (over twelve years) of trial, Major Hamza Al-Mustapha, the former Chief Security Officer to the late Head of State General Sani Abacha and Lateef Shofolahan was on January 30, 2012, sentenced to death by hanging by a Lagos High Court over the murder of Kudirat Abiola, wife of the acclaimed winner of the June 12, 1993 Presidential election, Chief Moshood Abiola.

In Akingbola’s case, it is evidently clear from the ruling and the history of the case that the Judge was dissatisfied with the conduct of the prosecution team; hence, the learned trial Judge dismissed the case with sanctions for what he described as abuse of Court process and violation of the defendant’s right to a speedy trial.

Abuse of court process and violation of the Defendant’s speedy trial rights are too weighty allegations which are today, some of the banes of the rule of law in Nigeria and one should applaud the judge for his fearlessness in dismissing the case and meting out appropriate sanctions to the erring prosecution team in this regard.

The rule of law and abuse of court process cannot co-exist symmetrically in the same legal system as both are intrinsically contradictory in terms having different properties and relationships. According to the observation of Lord Goldsmith:  The rule of law is not simply about rule by law; such a proposition would be satisfied whatever the law and however unfair, unjust or contrary to fundamental principles, provided only that it was applied to all. The rule of law comprehends some statement of values which are universal and ought to be respected as the basis of a free society”.

However, while  analyzing the negative effect of the doctrine of abuse of process on the rule of law in  the Brooks case, Sir Roger Ormrod held inter alia that: It may be an abuse of process if: “the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality, or on the balance of probability the defendant has been or will be prejudiced in the preparation or conduct of his defense”.

The abuse of court process in Nigeria has in most cases led to situations where judicial decisions are influenced by extraneous considerations such as political equations and relationships, economic factors and power structures. Hence, even the most brilliant legal analysts may not be able to predict the outcomes of any case no matter how well cut and dry it is, thereby tinkering with the doctrine of predictability and fairness which the rule of law imposes. The presence of abuse of legal process in any legal system also makes the operation of the rule of law very vulnerable, subjective, permeable and outcomes largely biddable and commercialized. Instead of being an integral part of the success of democracy, abuse of court process can easily turn the judiciary into an institutional obstacle and constraint to democracy.

To this effect, both the dismissal of the case against Akingbola and the sanctions against the prosecuting attorneys may be justified even though, the Judge’s motive for his action and his criteria for the computation of time in the absence of statutory or constitutional provision may also be put on a searchlight.  However, Judges have very wide powers when it comes to sanctioning of erring lawyers. Only recently, a New York appeals court suspended a lawyer from law practice for two years after a federal grievance committee found he had submitted briefs of “shockingly poor quality.”  Another lawyer was sectioned by the same Court for ‘frivolous, outrageous and unprofessional deposition behavior”.  At the deposition, the lawyer who has been practicing meritoriously for forty years, “repeatedly interrupted the questioning and made improper objections and lengthy speeches that had no merit”; but the New York Appeals Court imposed a $10,000.00 sanction on him for his behavior while he was also ordered to pay attorney fees to the opposing side for the costs of pursuing the sanctions motion.  Be that as it may, it is doubtful whether a Judge can disband a prosecuting team as part of his sanctions without usurping the functions and powers of the Attorney General of the Federation who appointed the prosecutors.

Nonetheless, can Judge Achibong’s order represent the fruit of the poisonous or forbidden tree or can his order serve the interest of justice? Did he overreact or has he not thrown the baby away with the bath water all in a bid to give the baby a through clean shower?

 A cursory examination of the entire proceedings on that day and the historical background of the proceedings before the trial judge might taint and stigmatize the motive behind the Judge’s order of dismissal and sanction. We are told from the records that the prosecuting team had earlier filed a motion requesting the judge to disqualify himself from the case which he denied as a result of which the prosecuting team filed an appeal. We are also told from the records that after hearing the prosecution argument, the judge rose and went into his chamber to write his ruling on the prosecution’s  motion to stay further proceedings in the matter pending an appeal against his refusal to recuse himself; again, we are told that minutes later, the Judge came back into the courtroom and delivered the far reaching order dismissing the case and sanctioning the lawyers thereby rendering the appeal against  his  refusal to recuse himself moot. Finally, records available to the public indicate that the Judge made the far reaching orders sua sponte without a formal application or prior motion or request to that effect by the defendant.

Arguably, the Judge should not have sat on the case after a motion for recusal had been filed and argued against him even if he had denied the motion as he did in the instant case; otherwise, his decisions and rulings might be tainted with bias and retaliation. Writing on a paper, “Deciding Recusal Motion: Who Judges the Judges? Prof. Leslie W. Abramson posits that “judicial impartiality is a significant element of justice. Judges should decide legal disputes free of any personal bias or prejudice. As a result of a conflict of interest, a judge may be unable to maintain impartiality in a case and thus should be disqualified”.   Public confidence in a legal system and the ability of the judges to discharge their duties fairly without bias is crucial to the effective dispensation of justice. A legal system that does not enjoy public confidence in its ability to dispense justice fairly and speedily, will ultimately collapse; hence, the foundation of democracy and rule of law.

Even though, the decision whether or not to withdraw from a case rests squarely on the discretion and good conscience of the presiding judge, the general standard for disqualification is that a judge should disqualify himself  in a proceeding in which the  judge's "impartiality might reasonably be questioned."  In addition, it is doubtful whether Akingbola’s case is the only criminal action before Judge Achibong that had been pending for more than two years; if that is the case, his impartiality might reasonably be questioned for not satisfying the appearance of justice. In rule of law and judges’ disqualification, what matters is not the reality of bias or prejudice but its appearance or a scintilla of it.

Lastly, while the Judge had chided the prosecution for tardiness, by far the worst culprit for the protracted tempo of criminal trials in Nigeria is the outdated, behind the times and tedious nature of the Nigerian criminal justice system and the administration of justice which require a total overhauling, remodeling and new legislation.  Case management is very crucial to the criminal justice system and lack of it can be very vital to effective administration of justice.  Currently in Nigeria, our criminal procedure does not have a place for pretrial conferences and in most cases; judges do not take active roles in ensuring compliance with speedy trials and effective administration of justice.  In most jurisdictions, it is the duty of the trial judge to schedule a trial management conference to discuss administrative aspects of the case, such as scheduling and other  pretrial matters. 

Pretrial conferences which are also being been conducted in civil cases in several jurisdictions including Nigeria to formulate and simplify the issues in the case, eliminate frivolous claims or defenses,  obtain admissions of fact and documents to avoid unnecessary proof, identify witnesses and documents, make schedules for the submission of pretrial briefs and motions,  make rulings on motions submitted before the conference,  set dates for further conferences, discuss the possibility of a settlement, and discuss the consolidation or management of large, complex cases can also be introduced in criminal cases as well  in order to make trial judges more proactive and effective  in the  administration of justice  and to decide matters that do not go into the core of the case such as whether the defendant is guilty or not.   A pretrial conference in criminal cases can be conducted to expedite disposition of the case, help the court establish managerial control over the case, discourage wasteful pretrial activities and improve the quality of the trial with thorough preparation. The Judges can also use the pretrial conferences to admonish a tardy prosecutor and put him back on fast track.  For instance in the US, Under rule 17.1 of the Federal Rules of Criminal Procedure, pretrial conferences for criminal cases may be conducted to promote a fair and expeditious trial which in  practice,  include  a decision on such preliminary matters as what evidence will be excluded from trial and what witnesses will be allowed to testify at trial.

Nigerian Courts are always congested and crowded by the day, therefore, the use of pretrial conferences in criminal cases to narrow down issue for trial will help to decongest the Court system and assist in the prompt and effective delivery of the criminal justice system. Pretrial conferences can save valuable time for courts by narrowing the focus of the trial and resolving preliminary matters.

For now however, it remains contentious whether Judge Achibong’s conduct is yet another classical scenario of judicial activism by the bench or has met the ends of justice. Be that as it may, judges have a vital role to play in the administration of justice and the criminal justice system. They must not only be seen to be impartial, they must also avoid conducts and actions that betray their emotions and refrain from taking actions that suggest they have made up their minds well in advance. At all times, they must remember that judges are not only accountable; they also fall under several observations and scrutinies.

Kayode Oladele is a U.S based international lawyer and can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.

Sunday, 19 February 2012 05:49

The Future of Poverty In Africa

The Millennium Development Goals (MDGS) were declared and made “compulsory” social policy option for third world countries. About the same time the United Nations adopted these goals as a palliative “arrest” option for the third world, the World Bank came up with a huge document on African, entitled “Can Africa Reclaim the Twenty first Century?” Without anybody saying so, both the UN and the World Bank held very pessimistic view about Africa ’s capacity to meet up to its social challenges, to reach or accomplish the limited and tentative targets set for it, but they did say so in too many words.

The World Bank, on a different note had complained about the quality of labor produced in Africa, the bad training received by students in tertiary institutions and the general decay in infrastructure. At a point, the World Bank said that Africa no longer needed universities, all it needed was mid level manpower training for its youth, and this could be acquired at the mono- and polytechnics. Many people were angry and vexed by this recommendation from the external agencies and financial cartels. However, what did they do internally to revamp African universities? Nothing. Even appointment to the post of Vice Chancellorship remains heavily politicized like partisan politics, appointees often do not have nuanced experience of the system neither did they command the respect of colleagues; and many cannot carry the entire community along. These are the calibre of people often appointed Vice-Chancellors-their commitment is more to the state rather than to their communities.

The social diary reads as follows: many people remained unemployed, young graduates from most tertiary institutions will go out to swell the queue of those who have been there for close to two decades without jobs, with access to micro-credit and without the privilege of unemployment benefit. Many young applicants will not have access to tertiary institutions while some who apply to private institutions will never be able to afford the tuition and cost of sustenance. This is because they are self-sponsored, their parents are either retired or cannot afford the tuition; they are from humble backgrounds; the biting economic crisis has made even feeding a rare privileged. There are not enough kind-hearted philanthropists to come it the rescue and the state has abdicated its social responsibility to the citizens.

It is a theory of “fend-for-thyself”. This is a theory that has not worked in Europe and America, and it cannot work in Africa either, where we claim to be our brothers and sisters keepers and live a communitarian life. I challenge the view that communitarian life is still a dominant social feature in Africa: increasing urbanization, marketization and individualized based on the ideology of competition and reforms have systematically undermined our social values. Everybody is more concerned with the nuclear rather than extended family system, some for selfish reasons and others because of the harsh reality of the times.

Poverty, as I have repeatedly stated or noted is growing in Africa and this has been caused by at least ten factors that I know of namely: bad leadership, visionlessness, wrong policies, external dependence on loans and investment (Foreign Direct Investment), obsession with the market economy, lack of focus or understanding of what constitutes development, the destruction of social infrastructure, bad training received at schools resulting in malformed and badly trained graduates, this takes place at all levels in public schools. Many private schools are in bad physical shape, managed by quacks and with semi-quacks as teachers, such teachers are underpaid and malnourished. In a word, there is no quality assurance or quality control in both public and private schools in Nigeria . Lastly but not least, is the weak nature of the private sector which has resulted in low capacity of the sector. This has had negative impact on employment profile of private employers. The consequences have been devastating for young job seekers.

All over Africa , people are displaced whether internally through internal displacement or external displacement resulting in the refugee crisis. In some cases, these African refugees, just like the Palestinians in South Lebanon , are denied the “right of return”. In such cases, they are engaged in internal contestation for leadership. Such is the case in DR Congo and in other cases; they are engaged in a forcible case of irredentism or ungovernability, as is the case of Somalia and Somaliland, the crisis inside and across, Sudan , Zimbabwe , Botswana , Chad and Rwanda .

Africa is afflicted with the crisis of what I called the Seven Ds: Divestiture, Debt, Desertification, Drought, Deforestation, De-vegetation De-democratization, which sometimes combined with famine and war to wrought havoc on social life in Africa. The seven Ds are crucial to understanding poverty in Africa . For instance, long wars have displaced many families in Africa.For close to 15 years, children of school age were unable to attend school in Liberia and Rwanda, the same thing happened in Somalia and Sierra Leone.

What are the social consequences of this for Africa in the next twenty years? Nobody is bordered about that. Many of those who have been fighting in the numerous wars across Africa have always used child soldiers from Angola to Rwanda to Dr Congo to Liberia and Sierra Leone. The lives of these children have virtually been destroyed because in the post-conflict or what is called reconstruction and integration era and the DDR process, nobody remembers the youth; because in the first case, the AU and UN laws criminalize the concept of child soldier, but in criminalizing them, they also excluded them from the rehabilitation processes. The children who fought and carried guns were not allowed to submit their guns in return/exchange for US dollars, instead it was the adults that collected the guns from the children and fronted to collect the dollars, without giving these children the money. This is increasing tension in Liberia and Sierra Leone and it is one core reason why President Koroma won the presidential election in Sierra Leone because many of the youth were disenchanted and disillusioned with the corruption, greed and alienation that had overwhelmed politicians in Sierra Leone .

Poverty level in Africa is high because African leaders have no clue about how to strategically address poverty. They believe that poverty is better addressed through the same mechanisms and policies that plunged African economies into crisis-reliance on external masters and forces; they feel that mere palliatives such as NAPEP in Nigeria and GEAR in South Africa can address poverty. However, they all miss the point. The irony of Africa is that over 67% of the population is youth, able-bodied and therefore potentially a huge asset. However, the youth have been turned by African governments into a wasting asset and a liability. In Europe and America, they are worried about the increasingly aging and gerontocratic population and how much will be expended for their upkeep, while in Africa the reverse is the case, nobody cares about the youth, there are no Borstals, few juvenile homes, parenting has given way to the crass pursuit of money. In the name of being professionals, more and more parents are abandoning their children to nannies and housemaids. This is wrong.

Employment generation anywhere in the world is always often based on the potentials of the people, on the opportunities that can be created in the economy. In Many countries of Africa , both those that are well endowed and those that are less endowed, the only opportunities created are those for corruption and not those for gainful employment and development. Even where agencies and structures are created for mitigating poverty, they also become spaces for further corruption, greed and avarice.

We can solve the problem of poverty in Africa only when we take five core steps, first recognize that the state has a fundamental role to play in the social and economic development of a country, second when there is a humanist theory of society upon which development and social progress is designed and measured, third when there is accountability and inclusive political system, fourth when there is a proper monitoring and evaluation of state programs, and last but not least, when the goal of the state is to serve the public good and the public purpose. The moment we lose track of that notion, we would have stripped ourselves of our humanity and the essence of living. We would have left the future of our youth to chances, we would have mortgaged the future of the yet unborn, we would have betrayed our forebears who laboured hard to win Nigeria independence, and we would have also betrayed our own generational responsibility as a people.

Life is not all about money only, it is not all about “self”, the purpose of life is about “service” and about “others”. The day we feel or think others do not matter, or that they are external to us; the moment we feel that the next neighbour’s child is not my problem but his/her parent’s problem, that day we have compromised our humanity, sacrificed our future and endangered our security. A child that is not collectively trained and told the values of life is bound to grow a bad and ill brought up child, he is likely to be the robber next door and he may end up in prison. In the process a soul may have been destroyed for life; even if he/she is rehabilitated, he/she cannot may go and live in the ghetto, and have contempt for education or school. That is what we risk as a people, as a neigbourhood, as a collective and as a society or country. As a result, those who have, the wealthy must also think about how to create employment opportunities, educational opportunities through scholarships and endowments, they must endorse/embrace the concept of public private partnership in a genuine and concerted manner. That is the way to grow.

Above all, confidence and hope must be restored in the poor, they must be educated to know that not all is lost, that others care and that lives could be better if they cooperate and work in certain ways. They must be treated as citizens and granted equal entitlements and privileges as others; they should not be seen and treated as the “wretched of the earth”. No matter what we do about poverty or how we treat the poor, the moment they feel that they are being segregated, humiliated and treated with contempt, they will never appreciate what is done for them and they will prefer to live in poverty with their dignity and freedom, rather than being uplifted into wealth and losing their self-respect and dignity. This is akin to what late President Sekou Toure of Guinea Conakry told the departing French colonial masters that his people would prefer freedom in poverty rather than wealth in bondage.

The African poor want a better life, but they do not want to be humiliated or treated with contempt and indignity. Instead, they will prefer to remain in their poverty. However, we all know the social and political consequences of this. What becomes of poverty in Africa depends on us and not on external donors and philanthropists and African leaders must stop ridiculing our poor with the patronizing policies they have put in place, policies which simply do not and cannot work.

TODAY, January 30, 2012, a   Lagos High Court, after a protracted trial occasioned by several delays largely by the Defendants, sentenced to death by hanging, Major Hamza Al-Mustapha, the Chief Security Officer to the late Nigerian dictator, Gen. Sani Abacha and one Lateef Shofohan. They had been standing trial   for the murder of Mrs. Kudirat Abiola, pro-democracy activist and wife of the late Chief MKO Abiola, the acclaimed winner of the June 12, 1993 presidential election in Nigeria. In reaching this verdict, the trial Judge concluded that the evidence against the two Defendants was “so weighty that the court” had “no doubts” and therefore, found the Defendants “guilty as charged”. The judge described Al-Mustapha’s evidence as substantially self-serving and full of intimidation. “The light shines in darkness and darkness comprehends it not. Those who shed blood are those who fear death most. The defendants are accordingly sentenced to death by hanging until they are proved dead,’’ the judge further held. ”

The Kudirat Abiola’s Murder trial is one of the longest criminal trials ever experienced in Nigerian legal system lasting more than twelve years and passing through five successive judges during which time the accused persons were held in jail.

The judgment is no doubt, a welcome development as both the prosecution and the defence had ample time to prepare and argue their cases. It also represents, yet, another defining moment in Nigerian criminal justice system while putting a logical conclusion to the long years of courtroom   drama, intimidation and blackmail.

In spite of the fact that the Nigerian criminal justice system is slow and the case lasted several years, it is not unusual for a complex case of this nature to take a very long time to complete. Be that as it may, I have no doubt that the judgment has met the ends of justice, due administration of justice and interest of justice. Justice is the end of government, it is the end of every society, it has always been and it will continue to be until it is obtained. Everybody receives from justice in accordance with the works of our hands.

Therefore, Al Mustapha and Lateef Shofolahan have been made to receive their dues from justice; the crimes they committed demanded that justice be done in accordance with the law of the land and the weight of evidence against them. It is just unfortunate that human memory is very short; otherwise, I don't see how anybody would wish that they be set free from their criminal enterprise and the heinous crimes they had committed against humanity.

The lesson from this is that nobody is immune from the law and the era of sacred cow is over.

January 30, 2012.

Nigeria Democratic Liberty Forum (NDLF)

Press Release: "OCCUPY NIGERIA" RALLY IN NEW YORK

New York, New York.

Nigerians under the auspices of the Nigerian Democratic Liberty Forum (NDLF) would be rallying in solidarity with the suffering masses of Nigeria over the government's cruel increase in prices of petroleum products.

This ill advised, inhuman and sadistic 117% increase in price of fuel exposes the determination of the government to annihilate the poor Nigerian masses who are groaning under very deplorable conditions of living. A government that is incapable of rescuing its people from the abyss of economic ruins should not exacerbate the hapless situation of the suffering masses.

To this end, Nigerians in the US would express solidarity with the Nigerian people:

Date: Tuesday January 10th 2012

Venue: The Nigerian Consulate, New York

Address:

828 2nd Avenue New York, NY 10017-4300

Corner of 44th street and 2nd Avenue

Time: 12noon

Speakers would include: Okey Ndibe, Laolu Akande, Kayode Oladele, Sowore Omoyele, Adegboyega Dada, Rudolf Okonkwo, Bunmi Aborishade, Willie Nwiido and others.

We demand;

1. That the Nigerian government revert to the old prices.

2. That the government institute a panel of inquiry that includes representatives of Labour, Civil society, professional bodies etc to investigate the practices of petroleum products importation, distribution and payments over the past 13 years.

3. That the report of this inquiry should form a basis for the prosecution of those individuals, companies and their collaborators who have defrauded the country through sharp practices associated with importation of petroleum products.

4. That the government ensures the four Nigerian refineries operate at installed capacities within the next 12months.

5. That the government unveil a Petrol Production and Distribution (PPD) policy that is aimed at 100% local production of petroleum products within the next 12-36months.

6. That the government audit and make public the Nigerian daily crude oil production, royalties paid by foreign oil companies, accurate local consumption inventory rather than the conflicting numbers released by various government agencies.

7. That corruption in the oil sector and other areas should be confronted and perpetrators brought to book. The poor masses should not be made to pay for the incompetence and corruption of government officials.

8. That the government should not underestimate the people's ability and resolve to protest the continuous rape of the country by friends and cronies of government.

Join us as we express solidarity with our people at home.

Signed

Bukola Oreofe

Executive Director

NDLF

Thursday, 12 January 2012 21:51

The Voice Of The People Is The Voice Of God

Being the text of the Solidarity Message delivered by Kayode Oladele at the "OCCUPY NIGERIA" Rally in New York

I want to thank the Nigerian Democratic Liberty Forum (NDLF) for organizing this rally in New York to express solidarity with our oppressed and marginalized toiling people who have answered the clarion call to stand up for justice and oppose the removal of oil subsidy with its untold consequences on the socio-economic fabrics of the nation and in order not to worsen their long years of debilitating poverty, long years of suffering and long years of neglect in the midst of plenty.

For once, the government is putting too much pressure where it really hurts!!

What is currently unfolding in Nigeria is therefore, a battle against endemic corruption, a crusade against economic recession and a war against widespread unemployment. It is a struggle for survival. In the words of my brother, Lasisi Olagunju, the protests are "merely outlets for people's hitherto unvented spleen on a nation and its poisonous system".

This is indeed; a period to be a Nigerian, a period to identify with our people and a period to demonstrate that real power belongs to the people. And like the late great Dr. Martin Luther King Jr., would say; "let us (therefore) rise up.....with a greater readiness. Let us stand with a greater determination. And let us move on in these powerful days, these days of challenge" to make Nigeria a better nation.

Something is really happening in Nigeria at the moment, something that reminds me of another great period in the political history of Nigeria- the great and historic protests that greeted the annulment of the 1993 presidential elections which was adjudged then by the international community as the freest, fairest and most peaceful elections ever conducted in the history of Nigeria. Between July and August 1993, Nigerians of all ages from all walks of life, male and female, young and old with the backing of the organized labor, the Nigerian Labor congress (NLC), the Petroleum and Natural Gas Senior Staff Association of Nigeria, (PENGASSAN) etc and the coalition of civil society organizations under the auspices of the Campaign for Democracy (CD) embarked on massive protests and sit-at-home actions all over the country that crippled the nation's economic activities which eventually forced the then military leadership of Gen. Ibrahim Babangida to step aside.

In the same way; something is happening at this moment in the history of our country Nigeria; the trumpet has summoned us again, we feel an urgent sense of duty. Our people have yet been called upon to do what they know how to do best in times like this-to express their disapproval of government's actions by means of mass peaceful protests across the nation in opposition to the removal of the oil subsidy. And in response to this clarion call, our people are protesting in Lagos, Abuja, Kano, Ibadan, Port Harcourt, Jos, Maiduguri, Abeokuta, Benin City, Enugu, Calabar, Kaduna, Minna, Ondo, Ado-Ekiti, Markurdi, Onitsha, Osogbo and everywhere including small towns, villages and hinterlands. Their demand is one and the same: They are opposed to the removal of oil subsidy under whatever guise and therefore, want the federal government to reverse its decision.

I don't think this is a big request to make of our President and I don't think the President would be inclined to deny the people's request. According to Abraham Lincoln, the great US President, it is the duty of government to render prompt justice against itself in favor of the citizens as it is to administer the same between private individuals.

The President must listen and I believe he is listening. He must listen because there are far several security challenges in the country now that make his decision to remove the subsidy at this auspicious period ill timed. We are confronted everyday with the threats of Boko Haram in the North that are spreading fast to the south, kidnappings in the South-East and South-South, tribal and religious insurgencies in Bauchi in the North- East and Plateau State in the Middle Belt, possibility of resumed militant activity in the South-South and erratic power supply from North to South and from West to East all of which should have been strong enough headaches for a government that just got elected and about settling down to the arduous task and business of governance to contend with for starters.

To think that Nigerians have to begin their New Year with a "celebration" of yet another supper-added yoke is undoubtedly, one quinine too bitter for Nigerians to swallow, at least, at this moment when poverty and want have taken over many homes across the country particularly, when there are no provisions by the government to cushion the unpalatable effects of oil subsidy removal as we have elsewhere where subsidy had been removed.

While the government has maintained that the decision is in the interest of the nation because there is a cabal of the rich feeding fat on the subsidy on oil, the decision not to remove the subsidy is also in the interest of the nation because nobody wants to preside over a nation in crises due to abject squalor and poverty. We must listen to ourselves.

I have no doubt that the President is listening and I hope he does not want to rock the boat as the captain of the Ship. I hope the President will hearken to the voice of the people knowing full well that the voice of the people is the voice of God (Vox populi, vox dei).

Let unity in action hasten the dawn of freedom.

Thank you.

January 10, 2012.

I have been following the controversy and the looming diplomatic crisis between the US and Nigeria over the proposed prohibition and criminalization of same sex marriage by Nigeria with keen interest and it is my sincere opinion as a human rights lawyer that the issue is being over emphasized by either side to the extent that both countries are losing sight of more important areas that promote mutually beneficial relationship between them. For instance, the past one and a half years have witnessed positive developments in the relationship between the US and Nigeria. Both countries have agreed among others, to set up a Bi-National Commission for management of bilateral relations and to develop stronger ties, friendship and partnership with each other.

When you consider the issue of same sex marriage in the US, it is not as if all the states recognize it even though they may not criminalize it as Nigeria has proposed which I think, is the gravamen, the most important part and substance of the face-off, and I also know for sure that the US federal law does not recognize same sex marriage either.

There are fifty states in the U.S with a strong federal system out of which only about six, namely, Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont, plus Washington, D.C. currently grant same sex marriage licenses. Some years ago, same sex marriage was recognized in California but as a result of Proposition 8 which called for the elimination of same sex couples to marry among other things, the new Section 7.5 of Declaration of Rights which was passed in November 2008 amended the state constitution to provide that "only marriage between a man and a woman is valid or recognized in California." By limiting the recognition of marriage to opposite-sex couples, the new provision repealed the California Supreme Court's ruling of In re Marriage Cases that recognized the constitutionality of same-sex marriage.

It is also imperative to note that in the US, out of twenty eight states where constitutional amendments that define marriage as the union of a man and a woman were proposed in referenda, voters in all the twenty eight states voted overwhelmingly to approve such constitutional amendments to the point that as at today, several states have constitutional provisions restricting marriage to one man and one woman, while at least, a dozen others have laws prohibiting same sex marriage and "restricting marriage to one man and one woman only.

The story is not any different at the federal level in the US as recognition of same sex marriage is unequivocally barred by law. According to the Defense of Marriage Act (DOMA) which is a United States federal statute signed into law by President Clinton on September 1, 1996, the US Government defines marriage as a legal union between one man and one woman. Under the federal legislation, no U.S. state may be required to recognize as a marriage, a same-sex relationship considered a marriage in another state. This means that sates are not bound to give full faith and inter-state credit recognition to same sex marriage laws.

Section 3 of the Defense of Marriage Act (DOMA) does not recognize same-sex marriage for all federal purposes, which include family insurance benefits for employees of the US government, survivors' benefits from Social Security, and joint tax filings. Even though, some state courts in Massachusetts and California have declared this section as unconstitutional, however, there are reports that these decisions are still subject of appeal and the courts have granted a stay. I must also say that the current administration of President Obama is not comfortable with some provisions of DOMA which his administration feels are unconstitutional. Hence, the US Department of Justice has stopped defending the Defense of Marriage Act in accordance with President Obama and Attorney General Eric Holder's decision that that Section 3 of the Act –the federal definition of marriage is unconstitutional. According to the Department of Justice in one of its briefs attacking the provision of the DOMA, "[T]he official legislative record makes plain that DOMA Section 3 was motivated in substantial part by animus toward gay and lesbian individuals and their intimate relationships, and Congress identified no other interest that is materially advanced by Section 3. Section 3 of DOMA is therefore unconstitutional." In the same vein, efforts to make the Congress repeal the law have not been successful as "the backbone is not there in the Congress" and the risk of filibuster which may delay such repeal particularly in the Senate is also very high. However, in the absence of the Congress repealing the federal law, or the Courts declaring the law unconstitutional, DOMA is the controlling law in the US today.

While I admit that the issue is not yet settled in the US and the debate still rages on across the states, I would like to remind President Obama that his current sympathy for same sex marriage runs sharply contrary to his personal views on the same matter at least during his campaign days when he was running for President even though he has said recently according to a publication by the Washington Post of January 5, 2011 that his current position is "evolving", literally meaning it is neither here nor there thereby placing his position between two extremes - the devil and the deep blue sea which will remain a recurring sticky situation for most part of this election year.

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