Bail Conditions of Mr Deji Adeyanju; Daniel Abobama and Boma Williams - How The Courts Of Law Contribute To Impunity!

A Karshi Magistrate Court, Abuja, has remanded an activist and Convener, Concerned Nigerians, Deji Adeyanju;  Daniel Abobama and Boma Williams in Keffi prisons, Nasarawa State, for protesting against alleged partisanship by the police.

The three accused persons had led a protest to the Force headquarters, Abuja, on Wednesday, against the police for sealing the Akwa Ibom State House of Assembly on Tuesday, when they were picked up and hastily arraigned in court.

The men were charged with criminal conspiracy, public nuisance, disturbance of public peace, and threat to public security and safety, criminal defamatory and derogatory conduct against constituted authority and breach of law and order under Sections 96, 113, 114, 152, 183 and 391 of Penal Code.

The accused persons were, however, granted bail by the presiding Magistrate, Aliu Kagarko, but they could not immediately meets the conditions which included two sureties one of whom must be a level 14 civil servant with a cover letter from his superior, and also a businessman with a verified address.

They were subsequently taken to Keffi prisons by the police after they failed to provide the sureties .

I however find the actions of the Nigerian Police rather distasteful,and more worrisome is the bail conditions granted to the protesters  by the court of law .

The Right To Protest.

The right to protest remains a fundermental right as the 1999 ,Nigerian constitution(as amended) in Section 39 & 40 which provides for the right to Freedom of Expression and Peaceful Assembly & Association.This rights are also enshrined in Article 11 of the African Charter on Human and Peoples’ Rights.,which provides thus ; 

" Every individual shall have the right to assemble freely with others. The exercise of this right shall ONLY be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others."

The Court have also often times upheld this right and same was even settled in the case of Inspector-General of Police. V. All Nigeria Peoples Party (2008) 12 WRN 65 wherein the Court of Appeal had declared that the requirement of police permit for public protests was illegal and unconstitutional.

It should be noted that the Police have no powers to disrupt the peaceful protest of the Nigerian Citizenry EXCEPT they obtain an injunctive relief in a competent court of law against such protest,if there are fears that it may lead to break down of law and order.

It must also be noted that the ONLY exception to the fundermental right to protest is provided in  section 45 of the Constitution, in which case there must be a state of emergency properly declared before these rights can be violated.”

Protest against constituted authorities are  recognised by law and same are not treasonable acts/crimes.

The Magistrate  Court in Karshi Abuja is therefore mandated  to call for a review of its bail conditions as same is inimaical to the tenants of the rule of law and the tenets of the Nigerian Constitution.The Supreme Court have often enjoined that bail condituons should not be oneerous or excessive to one who the court as already granted bail,as same would be tantamount to a denial.

In conclusion ,Nigeria as a nation which prides itself on democratic tenets of the rule of law ,must continually work to uphold and observe the right to  freedom of expression, the right of Nigerians to hold protests, marches, rallies and demonstrations for or against the government  and same should no longer be enjoyed at the whims and caprices of the ruling class.

Umoru Theophilus Iko-Ojo Esq is the Principal Partner & Head of Chambers of the Emmanuel Attorneys & Solicitors Law Chambers.

*emmanuelattorneys&solicitors@gmail.com
*+234-810-2160-864

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Gov. Abdullahi Ganduje: Court Can Not Stop Investigation of A Sitting Governor By The House of Assembly: Umoru Theophilus Iko-Ojo Esq

My attention as been rudely drawn to recent events in the Nigerian state ,and most specifically the series of recent scandalous videos been published appearing to show Governor Umar Ganduje,the Executive Governor of Kano State, pocketing vast wads of American dollars in what was said to be bribe payments from public works contractors.

In the said clips provided by  online-based Daily Nigerian and authenticated by PREMIUM TIMES’ the State governor could be seen collecting wads of dollars which were said to be "kickbacks" from contractors  doing projects for the kano state government before rolling them into his white dress, “babanriga,” in one of a series of questionable deals allegedly struck over a span of several months. The following events prompted an Investigation by the Kano State House of Assembly who invited the Kano State Governor to come and testify.

I have however been gravely alarmed by the audacity of the Kano state government who have branded such obvious acts of corruption as "nothing more than the usual" and in fact gone further to threaten legal actions against the perceived "whistle-blower",more shameful is the recent position of respected silk Itse Sagay(SAN), who quipped that the Kano State House of Assembly is not " properly" equipped to investigate the affairs of the Governor but  carry out oversight functions and not    investigate state executives. According to him,  " Oversight functions don’t include that sort of thing. Oversight functions only involve monies that have been approved in their budget and then oversight is done on how such monies that were approved which have gone through the budget system are being expended.

“That is where their oversight functions are limited to. This allegation is about somebody from outside giving the governor some money. It is not part of the House of Assembly’s responsibilities.”

Respectfully,I totally disagree with the above position of the Most Respected Silk.

The House of Assembly of the various states in Nigeria is clothed with wide powers of investigation as provided in the  1999, Constitution of the Federal Republic of Nigeria and by virtue of Section 128 (1) Subject to the provisions of this Constitution, a House of Assembly shall have power by resolution published in its journal or in the Office Gazette of the Government of the State to direct or cause to be directed an inquiry or investigation into -

(a) any matter or thing with respect to which it has power to make laws; and

(b) the conduct of affairs of any person, authority, ministry or government department charged, or intended to be charged, with the duty of or responsibility for -

(i) executing or administering laws enacted by that House of Assembly, and

(ii) disbursing or administering moneys appropriated or to be appropriated by such House.

(2) The powers conferred on a House of Assembly under the provisions of this section are exercisable only for the purpose of enabling the House to -

(a) make laws with respect to any matter within its legislative competence and correct any defects in existing laws; and

(b) expose corruption, inefficiency of waste in the execution or administration of laws within its legislative competence and in the disbursement or administration of funds appropriated by it.

129. (1) For the purposes of any investigation under section 128 of this Constitution, and subject to the provisions thereof, a House of Assembly or a committee appointed in accordance with section 103 of this Constitution shall have power to -

(a) procure all such evidence, written or oral, direct or circumstantial, as it may think necessary or desirable, and examine all persons as witnesses whose evidence may be material or relevant to the subject matter;

(b) require such evidence to be given on oath;

(c) summon any person in Nigeria to give evidence at any place or produce any document or other thing in his possession or under his control, and examine him as a witness and require him to produce any document or other thing in his possession or under his control, subject to all just exceptions; and

(d) issue a warrant to compel the attendance of any person who, after having been summoned to attend, fails, refuses or neglects to do so and does not excuse such failure, refusal or neglect to the satisfaction of the House of Assembly or the committee, and order him to pay all costs which may have been occasioned in compelling his attendance or by reason of his failure, refusal or neglect to obey the summons and also to impose such fine as may be prescribed for any such failure, refusal or neglect; and any fine so imposed shall be recoverable in the same manner as a fine imposed by a court of law.

(2) A summons or warrant issued under this section may be served or executed by any member of the Nigeria Police Force or by any person authorised in that behalf by the Speaker of the House of Assembly of the State.

       By virtue of this position, the House of Assembly of various states are clothed with ample powers to investigate the affairs of the executives, and without mincing words expose corruption! Though the golden tenants of separation of power preaches that there must be clear cut separation of powers  between arms of government and one must not interfere with the other yet arms of  government must not act as  "water tight compartments' ,    but rather serve as a check on the affairs of each other.                I am also aware of the recent suit by                Barr Mohammed Zubair, the National Coordinator of Lawyers for Sustainable Democracy in Nigeria seeking to stop the investigations of Governor.Abdullahi Ganduje, by the Kano State House of Assembly at the Kano State High Court,while I respect the recent order of His Lordship that parties should maintain status quo,i respectfully submit in disagreement that any attempt to defeat the ends of justice through the machinery of a court of law must be discouraged by the Courts of the land and on no occasion must our court stop investigations into an alleged corruption indictment  on any individual be he so powerful!

Despite being jealously clothed with immunity by virtue of  Section 308 of the Nigerian Constitution , the Kano State Governor is not so immuned from Investigations.Section 188(10) of the Constitution also oust the Jurisdiction of our Courts with regards to proceedings by state houses of Assembly in matters relating to affairs of an Executive Governor,I again submit with respect that the court is ONLY clothed with Jurisdiction if the end result of such  investigations doesn't follow the due process of law.

I submit! Therefore! Let Gov.Abdullahi Ganduje face his accusers or resign!

Umoru Theophilus Iko-Ojo Esq is a Lagos based Legal Practitioner.

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PART II: President Buhari Ineligible To Contest 2019 Elections In Nigeria.

My Legal Position:

Mr Buhari is seeking reelection under the flag of the All Progressives Congress (APC), but like in 2015 has failed to submit his credentials to INEC, claiming the documents are in the custody of the Nigerian Army,he also deposed to an Affidavit in that regard.

It was also reported that the Nigerian President joined the army in 1961 as a cadet officer and rose to the rank of major general but left service in 1985 as Nigerian Head of State after he was toppled in a palace coup.

Notable Legal Practitioners have hinged Buhari's eligibility on the fact that having served in the Nigerian Army as a cadet officer and rose to the rank of Major General ,he is qualified and as fulfilled the requirements in Sections 131(d) 1999,CFRN.Other Notable Practitoners like Taiwo Osipitan (SAN)  have also hinged their position on the premise that the requirments of Section 318(1) of the 1999 CFRN ,didn't require the President to submit any school leaving certificate and an affidavit stating that Mr President as reached or fulfilled Section 131(d) would suffice  and even so his eligibility is solely at the satisfaction or discretion of the Independent National Electoral Commission(INEC).This arguments to me with all due respect is gravely faulty.

Firstly.,the Requirements of Section 131(d) of the Constitution that persons seeking to vie for the position of the Presidency must have been educated up to at least School Certificate Level or is equivalent was further elucidated in the Interpretation Section of the Constitution viz-a-viz Section 318 of the Nigerian Constitution as outlined in the first part of this Article.

Part   A: Provides that School Certificate or its equivalent means  a Secondary School Certificate or it equivalent or Grade II Teacher's Certificate among others.

PART B: Provides that same means "education up to SecondarybSchool Certificate Level or;

PART C: (c) Primary Six School Leaving Certificate or its equivalent and-

(i)  service in the public or private sector in the Federation in any capacity acceptable to the Independent National Electoral Commission for a minimum of ten years, and

(ii) attendance at courses and training in such institutions as may be acceptable to the Independent National Electoral Commission for periods totalling up to a minimum of one year, and

(iii) the ability to read, write, understand and communicate in the English language to the satisfaction of the Independent National Electoral Commission; and

(d) any other qualification acceptable by the Independent National Electoral Commission;”

It should be noted that the words AND used in part  C (1) ,(II) and (III)  implies an addition ,in other words before before INEC can exercise its discretion or satisfaction with respect to a candidate who seeks to vie for the Presidency such candidate must have fulfilled the requirements in PART C(I)-(III) of the School Certificate or its equivalent Section in Section 318 of the Constitution.

The Presumption that Mr Muhammadu Buhari having served to the level of Major General in the Nigerian Army is also presumed to have have fulfilled the requirements in Section 318 holds no water ,as Section 131(d) CFRN implies he must show proof of same.

Mr President has instead sworn to an affidavit merely stating were such relevant  credentials are and whose custody they have been.   An Affidavit with all due respect and as explained by Ruud in ,The Nigerian Law of Evidence ,p 222 is defined to be a statement of fact which the maker or deponent swears to be true to the best of his knowledge  , information or belief,same can not pass as being equivalent to the documents ,neither is it tantamout to the documents refered and enutiated in Section 318 of the Nigerian Constitution.

 Most Respected Silk,Taiwo Osiptian (SAN) also hinged his position on Estopel and that  INEC CANNOT reject Mr Buhari's candidacy with the All Progressive Congress having accept it on 4 occasions with the ANPP,CPC respectively.

However it should be recalled that sometime in January 2015 ,the Nigerian Army spoke on the issue of the controversial certificate.

The position of Service was made known by the then Director of Army Public Relations, Brigadier General Olajide Laleye, who was retired after the assumption of office by Buhari.

Laleye said the Army does not have the original or Certified True Copy of President Buhari’s West African Examination Council certificate.

He equally said there was no statement of result in his file.

Laleye’s statement to the press on January 20, 2015, reads in full: “I will begin with the Major General Muhammadu Buhari certificate controversy. Gentlemen, let me state clearly that the Nigerian Army holds the retired senior officer in very high esteem and respect and would not be a party to any controversy surrounding his eligibility for any political office. Suffice to state that Major General Buhari rose steadily to the enviable rank of Major General before becoming the Head of State of our dear country in December 1983.

“The media hype on retired Major General Muhammadu Buhari’s credentials as well as the numerous requests made by individuals and corporate bodies to the Nigerian Army on this issue have necessitated that we provide the facts as contained in the retired senior officer’s service record. Records available indicate that Major General M. Buhari applied to join the military as a Form Six student of the Provincial Secondary School, Katsina on October 18, 1961.

“His application was duly endorsed by the Principal of the school, who also wrote a report on him and recommended him to be suitable for military commission.

It is a practice in the Nigerian Army that before candidates are shortlisted for commissioning into the officers’ cadre of the Service, the Selection Board verifies the original copies of credentials that are presented. However, there is no available record to show that this process was followed in the 1960s.

“Nevertheless, the entry made on the NA Form 199A at the point of documentation after commission as an officer indicated that the former Head of State obtained the West African School Certificate in 1961 with credits in relevant subjects: English Language, Geography, History, Health Science, Hausa and a pass in English Literature. However, neither the original copy, Certified True Copy nor statement of result of Major General Muhammadu Buhari’s WASC result is in his personal file.

“I hope this explanation will put to rest the raging controversy surrounding the secondary school credentials of Major General Mohammed Buhari as it affects the Nigerian Army.”

The claim by Mr Buhari having been debunked by the Nigerian Army , creates a presumption that his often bandied claim of his credentials are seemingly false.Therefore his candidacy for the postion of the presidency having been accepted by INEC on 4 occasions on false grounds /claims can not be a bar if the Independent National Electotal Commission  chooses to disqualify him having failed time and again to present relevant credentials.That is to say,the issue of Estopel can not be used to aid an individual who has benefitted wrongly on false grounds/claim,as it is a settled principal of law that  a party can not benefit from his wrong.Mr Buhari has failed to fulfill entirely the Provision of 318(1) of the Nigerian Constitution and so his candidacy be rejected by INEC.

While Our Team of Lawyers prepare to challenge the eligibility of Buhari's candidacy in court ,we urge the All Progressive Congress and Mr Buhari's teaming supporters to make further attempts to urge the army authorities to provide the supposed credentials of Mr President.

Umoru Theophilus Iko-Ojo is a Lagos based Legal Practitioner.

Emmanuellawattorneys@gmail.com

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President Muhammadu Buhari is Ineligible To Contest The 2019 Elections In Nigeria:Umoru Theophilus Iko-Ojo Esq

As the General Elections approach , I have been perturbed by incessant calls over the past few days by Nigerians on the recent discus on the failure of the Nigerian President ,Mr Muhammadu Buhari to sufficiently show proof of relevant school leaving certificates to the Independent National  Electoral Commission (INEC) ,as required by law.I have also seen various views of distinguished  learned counsel most respectably ,Ebun Adegboruwa Esq and Okutepa (SAN) who have both espoused reasons why Mr President is legally qualified to contest as the Presidential candidate in the 2019 Elections under the All Progressive Congress .Of Note however  ,is the view of Mr Taiwo Osipitan (SAN). Having read through their various Articles ,I'm afraid I gravely go contrary to the similar views exposed by this learned gentlemen.I infact maintain that President Muhammadu Buhari having failed to present or show sufficient proof of  relevant school leaving  certificates to INEC is not eligible to contest the 2019 elections.

The Constitution as the grundnorm provides for the law with respect to eligibility into the position of the President and other elective positions such as the position of the Governor, Senators and members of the National and State Assemblies. Section 130 of the 1999 Constitution provides thus that “there shall be for the Federation, a President” and such “President shall be the Head of State, the Chief Executive of the Federation and Commander- In –Chief of the Armed Forces of the Federation”.

Qualification to the position of the President is provided for in Section 131(a-d), states that – A person shall be qualified for election to the office of President if –
a.he is a citizen of Nigeria by birth;
b.he has attained the age of forty – years.
c.he is a member of a political party and is sponsored by that political party;
and
d.he has been educated up to at least School Certificate level or its
equivalent.

The emphasis of this piece is centered on whether a Presidential candidate can vie for the position of the exalted office of the  President of the Federal Republic of Nigeria without showing proof of being educated up to at least School Certificate level or its equivalent and or as provided in Sections 131(d) of the Constitution . When the above provision is construed in its literal grammatical meaning, persons seeking to vie  for the position of the Presidency who do not possess the Secondary School Leaving Certificate or its equivalent are not qualified to contest election to the office of President. In other words, upon a cursory reading of the provision of Section 131(d), it is evident that unless a person possesses the Secondary School Leaving Certificate or its equivalent (Grade II Teacher’s Certificate, the City and Guilds Certificate), he or she is ordinarily not eligible to contest election to the office of the President of Nigeria.Well ,before stating my candid position of the law in this regards ,I would briefly give a rundown on the contrary but brilliant position of Taiwo Osipitan (SAN).

TAIWO OSIPITAN(SAN).

Notable Constitutional Lawyer, Taiwo Osipitan (SAN) position on the above issues is to the effect that the above Section 131(d) CFRN must be read along with Section 318(1) of the Nigerian constitution, which is the Interpretation Section of the Nigerian Constitution. According to him , upon a careful reading of the said Interpretation Section, that even persons whose educational qualifications are below the Secondary School Leaving Certificate/level and its equivalent are still qualified to contest election, if they possess the Primary Six School Leaving Certificate or its equivalent along with the other requirements listed under the said definition Section (Section 318(1))."

For the avoidance of doubt, Section 318(1) provides:
“School Certificate or its equivalent” means -
(a)      a Secondary School Certificate or its equivalent, or Grade II Teacher’s Certificate, the City and Guilds Certificate; or
(b)      education up to Secondary School Certificate level; or
(c)      Primary Six School Leaving Certificate or its equivalent and-
(i)       service in the public or private sector in the Federation in any capacity acceptable to the Independent National Electoral Commission for a minimum of ten years, and
(ii)      attendance at courses and training in such institutions as may be acceptable to the Independent National Electoral Commission for periods totalling up to a minimum of one year, and
(iii)     the ability to read, write, understand and communicate in the English language to the satisfaction of the Independent National Electoral Commission; and
(d) any other qualification acceptable by the Independent National Electoral Commission;”

The learned Silk stressed the point that there  is the need to acknowledge the trite rule of interpretation of Statutes which is to the effect that a Section of a Statute should not be construed in isolation. According to him all sections in a Statute must be interpreted conjunctively, especially where the Statute has a definition Section, as it is the case with the 1999 Constitution (as amended).Section 131(d) according to him,must therefore be construed in conjunction with Section 318(1) of the constitution which defines the words “School Certificate or its equivalent.”

He firmly pointed out that, it  is evident from the above definition Section of the Constitution (Section 318(1)), that the meaning of “School Certificate or its equivalent”, for the purpose of Section 131(d) of the Constitution, is very liberal and accommodating. He stressed that the above provision accommodates persons with the Primary School Leaving Certificate coupled with private or public sector experience and who have attended courses and training for periods totalling up to a minimum of one year and that such primary school certificate holders must also demonstrate ability to read, write, understand and communicate in the English language to the satisfaction of INEC. He further explained that the  definition of “School Certificate or its equivalent” also includes candidates who are educated up to the Secondary School Certificate level and that candidates need not produce certificates evidencing that they passed secondary school examination and instead what they must produce is evidence of being educated up to the secondary school level. He further stated that this is unlike the other requirement of Secondary School Certificate or its equivalent or Grade II Teachers Certificate, or City and Guilds Certificateunder Paragraphs(a) of the definition. The difference between (a) and (b)above is that under (a), production of a Certificate is mandatory. In (b), what is required is evidence of “education up to Secondary School Certificate level”. While it may well be that production of a Certificate is evidence which proves(b), it is not the only mode of proving(b). Testimonials, Reference Letters and Affidavits are legitimate vehicles of proof that a candidate has been “educated up to Secondary School Certificate level.“As a matter of fact, the (d)part of the above definition is much more elastic and accommodating. It recognizes “any other qualification acceptable to the Independent National Electoral Commission as a qualification to contest election to the office of President and other elective posts. It suffices to state that a candidate who relies on (c) must also produce his/her primary school leaving certificate.

He further stated that the provision of Section 318(1) was construed by the Court of Appeal in the case of BAYO v. NJIDDA (2004) 8 NWLR (Pt. 876) page 544 at 629H-630D, where Ogbuagu, J.C.A (as he then was) held: “The above provisions, are conjunctive and they qualify or mean “school certificate or its equivalent.” So, if any one of them is not present/ available, then, the candidate is out. Therefore, even if (i), (ii), (iii) and (d) are acceptable by or satisfactory to INEC and therefore, cannot be questioned in a tribunal as being final, the absence of (c), also disqualifies the candidate.
In the case of (c), he must in the first instance possess, primary six school leaving certificate or its equivalent, (in some states there used to be primary 7 as the final class in Primary school), and in addition evidence of (i), (ii) and (iii) above all together AND that it follows that a person who is not educated up to school certificate or its equivalent, may still qualify for election to the House of Assembly of a state if he has primary six school leaving certificate plus evidence or fulfilling every one of the conditions in (i), (ii) and (iii). If the person possesses primary six certificate but fails to provide evidence of any of the above (i), (ii) or (iii), he does not qualify.

The Learned Silk futher quipped that the definition Section (Section 318(1)) also vests INEC with powers to determine a candidate’s literacy level. Under Paragraph (b), the capacity in which a candidate served in the private or public sector must be acceptable to INEC.  The courses and training attended by a candidate must also be in Institutions acceptable to INEC. Finally, a candidate’s ability to read, write, understand and communicate in the English language must also be to the satisfaction of INEC.

He also submitted that the key words in the definition Section are “acceptable”to and “satisfaction” of INEC. These words are subjective in the sense that where INEC is satisfied with a candidates training and qualifications or where the qualifications of a candidate are acceptable to INEC, it is doubtful if the decision of INEC can be challenged successfully by a candidate’s opponent. The words “to the satisfaction of” and“acceptable to”, in their ordinary grammatical meanings, acknowledge subjectivity on the part of INEC. The word acceptable is synonymous with being in agreement with, approval, not very good  but good enough, welcoming,  pleasing, satisfactory, adequate or worth accepting. Satisfaction means a state of being satisfied, that which satisfies, content or pleasing.

From the Angle of Law of Estoppel,the Learned silk further submitted that where INEC has previously been satisfied with or accepted a candidate’s educational qualifications in previous Elections, and allows such a candidate to contest election(s) the same INEC would be estopped from disqualifying the same candidate in future Elections on the ground of lack of educational qualification.

He further submitted that Estoppel prevents a person from blowing hot and cold, approbating and reprobating on an issue. Therefore, where a person makes a representation expecting it to be acted upon, and another person acts on that representation, the former is estopped from resiling from his/her representation.   He cited the positions of the law in :

1.Ude v Nwara (1993) 2 NWLR (Pt. 278) Pg. 638 at 662, Para.G -PerNnaemeka-Agu J.S.C:where the court held. that “By operation of the rule of estoppel a man is not allowed to blow hot and cold, to affirm at one time and deny at the other, or, as it is said, to approbate and reprobate. He cannot be allowed to mislead another person into believing in a state of affairs and then turning round to say to that person’s disadvantage that the state of affairs which he had represented does not exist at all or as represented by him.”

2. Jadesimi v Okotie-Eboh; In Re Lessey (1989) 4 NWLR Pt 113 Pg 113 at 125, Para. B – Per Akpata J.C.A.: “A party cannot be heard to approbate or reprobate. He will not be allowed to base his action or defence, whether by pleadings or affidavit evidence, on a set of facts then depart from the set of facts on which issues had been joined to meet the case of the other side.”

He further concluded that It is evident from Section 131 (d), read along with Section 318 (1) of the Constitution, that a candidate need not produce a Secondary School Certificate or its equivalent Certificate in order to be qualified to contest election into the office of the President of the Federal Republic of Nigeria or any other elective post. Candidates who are educated up to Secondary School Certificate level are qualified to contest Elections under the 1999 Constitution. Persons with Primary Six School Leaving Certificate or its equivalent, provided they satisfy the other requirements listed under Paragraph (c)(i), (ii), and (iii) of the definition of “School Certificate or its equivalent” in Section 318 (1), are also qualified to contest election into elective offices, including that of the President and that persons with “any other qualification acceptable to the Independent National Electoral Commission” are also qualified to contest election under Paragraph (d) of the definition Sectionset out above.

In Conclusion on his position ,he submitted that the elasticity of the definition of “School Certificate or its equivalent” in Section 318 (1) of the Constitution may be questioned against the backdrop of providing a Platform for candidates who lack sound educational background to aspire to elective offices, in a Nation which prides itself with aspirants with sound educational qualifications.The said provision can also be questioned on the ground of the enormous power vested in INEC with regard to being satisfied with a candidate’s educational qualification or the educational institutions/qualifications being acceptable to INEC.

(to be continued shortly....)

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POLICE, EFCC LACKS POWERS TO DECLARE A NIGERIAN CITIZEN WANTED WITHOUT AN ORDER OF A COMPETENT COURT

Over the years ,the country's topmost security agency ,the Nigerian Police Force and in fact other security agencies have seemingly been in the habit of declaring persons/citizens wanted on reasons bothering on various allegations. More recently  are the recent cases of persons like Mr Kassim Afegbua, spokesperson for the former military president,Ibrahim Babangida who was declared wanted by the Nigerian Police Force and Department of State Security Service (DSS) over a purported statement by him unbehalf of his Boss, asking President Buhari not to run for the 2019 elections.

Another instance is the case the of Chief Executive Officer of AITEO Group, Benedict Peters,who was declared wanted by the Economic and Financial Crimes Commission in relation to charges bothering on  his alleged involvement in $115m allegedly used by agents of the past administration to bribe officials of the Independent National Electoral Commission during the 2015 election.Though both parties have gone on to challenge the legality of such declarations by these law enforcement agencies,but the topmost question is not whether  these agencies can  declare a person wanted under our laws in exercise of their constitutional duties ?

-The Legal Perspective-

The law is settled that the Police can not arrogate unto itself powers to prosecute and pass a sentence by way of declaring a citizen wanted.Article 9 of the United Nations Declaration of Human Right to which Nigeria is signatory to provides that no one shall be subjected to arbitrary arrest, detention or exile. This provision is also domesticated in Section 35  of the 1999 Constitution of Nigeria, and guarantees that the dignity of all Nigerians must enjoy safeguards against arbitariness whether official or non official.In other words, the Police CANNOT on its  own declare a nigerian citizen WANTED as it can not be the complainant, the investigator and also the one to declare such citizens wanted thereby overriding judicial powers.

The law demands that before making a wanted declaration of a Nigerian Citizen on a Public Platform or any other platform , the police ought to obtain a warrant arrest duly signed and endorsed by a competent court. The said warrant must also be presented at the point of arrest and it in the particulars of arrest ought to be spelt out. Where a person sought to be arrested makes a run or evades same ,then a declaration informing the public of the accused person's status may be made but same must follow the due process of law by getting a competent order of court.

In the said case of Benedict Peters, in the suit marked, FCT/HC/CV/23/2017, the Applicant accused EFCC of declaring him wanted on its website without following due process.The EFCC and the Attorney-General  of  the Federation were the respondents to the above suit.

The plaintiff, through his lawyer, Mike Ozekhome (SAN), contended that his client was declared wanted by the  EFCC without a pending charge against him or a valid court order to that effect but merely on the basis of a purported bench warrant and same was a violation of his fundamental rights ,But Justice Musa, in his judgment, noted that there were discrepancies in the dates in a copy of the bench warrant tendered by the EFCC.

He said it was wrong for the EFCC to declare Peters wanted on the basis of the bench warrant, which he noted, did not contain any instruction to that effect.The judge held that EFCC’s decision to declare Peters wanted, without first obtaining a court order to that effect or filing a charge against him in court, was a violation of his fundamental rights, particularly the right to freedom of movement.

Lastly, the implication of declaring a person wanted is to the effect that such persons declared wanted is seen by the public or  is assumed by the public that such a person is not just a wanted criminal, but also a potentially dangerous one.  Note that, the serious implication of such above presumptions makes any deviation from the above process by law agencies in question an abrogation of lawful processes, a clear indicator that the said agency in question seeks to appropriate to itself powers vested singularly in the courts and also a gross disrespect of the accused person’s dignity of self, especially where he or she is neither on the run, in hiding nor knowing of the summon, invitation or intended arrest.”

Security agencies in the exercise of their lawful duties are therefore mandated to follow the due process of law.

Umoru Theophilus Iko-Ojo is a Legal Practitioner based in Lagos.

Contact@emmanuellawattorneys@gmail.com

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Anti-Social Media Bill:The Nigerian Senate Lack Powers to Criminalize The Freedom of Expression.:By Umoru Theophilus Iko-Ojo Esq.

I was awashed with several calls in the past few days by various learned gentle men of the honourable bar in respect of a purported bill by the 8th Nigerian Senate at sanctioning or regulating the criticisms against Public officers by Nigerians.The proposed law as I was informed sets out heavy sanctions for people who “falsely” criticise public officials or institutions.

The bill, which is also reported to have been sponsored by Bala Ibn Na’allah, a member of the ruling All Progressives Congress fromKebbi State,has been widely criticised,and is seen as not only a significant clampdown on freedom of speech, but a deliberate targeting of critics of federal lawmakers and the National Assembly.The bill states that, “Notwithstanding anything contained in any law, it shall be unlawful to submit any petition, statement intended to report the conduct of any person for the purpose of an investigation, inquiry and or inquest without a duly sworn affidavit in the High Court of a state or the Federal High Court confirming the content to be true and correct and in accordance with the Oaths Act.

“Any petition and or complains not accompanied by a sworn affidavit shall be incompetent and shall not be used by any government institution, agency or bodies established by any law for the time being enforced in Nigeria.

Any person who unlawfully uses, publishes or cause to be published, any petition, complaint not supported by a duly sworn affidavit, shall be deemed to have committed an offence and upon conviction, shall be liable to an imprisonment for six months without an option of fine.”

It continues: “Any person who acts, uses, or cause to be used any petition or complaints not accompanied by duly sworn affidavit shall be deemed to have committed an offence and upon conviction, shall be liable to an imprisonment for a term of two years or a fine of N200,000.00 or both.”

It also states that, “Where any person in order to circumvent this law makes any allegation and or publish any statement, petition in any paper, radio, or any medium of whatever description, with malicious intent to discredit or set the public against any person or group of persons, institutions of government, he shall be guilty of an offence and upon conviction, shall be liable to an imprisonment term of two years or a fine of N4,000,000.00.”

The social media  bill further provides, “Where any person through text message, tweets, WhatsApp or through any social media posts any abusive statement knowing same to be false with intent to set the public against any person and group of persons, an institution of government or such other bodies established by law shall be guilty of an offence and upon conviction, shall be liable to an imprisonment for two years or a fine of N2,000,000.00 or both fine and imprisonment.”

However Nigerians have clamped against the supposed bill which have suspiciously received a rather speedy or unusually rapid attention at the senate, with two readings made within two weeks of its introduction.

The Illegality of the Purported Bill:An Attempt to Criminalize The Right to Freedom of Expression.  

Well, having watched the actions of the Nigerian Senate ,I was rather amused at the desperate attempts by the nation's topmost lawmaking arm to grossly contravene the Nigerian Constitution by criminalising the divinely ordained right of the Nigerian citizenry.Without the task of repetition ,Section 39 of the constitution of the Federal Republic of Nigeria provides for the Right to freedom of expression ,which include the right of a citizen to hold his or her own personal opinions,which is ordinarily availed to every citizen of Nigeria in a democratic system, not just in Nigeria but in various countries of the world.Nigeria can therefore not be an exception .Need I mention that similar provisions are provided in Article 9 of the African Banjul Charter to which Nigeria is signatory to and Article 19 of the UN Charter respectively.

It is also pertinent to remind the 8th Nigerian Senate  that, as far back as 1983, the right of the Nigerian people to criticise public officers without any sanctions whatever was upheld by the Court of Appeal which annulled the offence of sedition in the case of Arthur Nwankwo v. The State (1985) 6 NCLR 228. In that case, Olatawura JCA (as he then was) of blessed memory had this to say:

“Those who occupy sensitive posts must be prepared to face public criticisms in respect of their office so as to ensure that they are accountable to the electorate. They should not be made to feel they live in an Ivory Tower and therefore belong to a different class. They must develop thick skin and where possible plug their ears with cotton wool if they feel too sensitive or irascible. They are within their constitutional rights to sue for defamation but they should not use the machinery of government to invoke criminal proceedings to gag their opponents as the freedom of speech guaranteed by our constitution will be meaningless.”,

The actions of the Nigerian Senate is thus grossly irresponsible and a desperate attempt to curb and criminalize the voices of the poor Nigerian masses and yes, the purported bill if passed into law will be challenged by myself and other members of my legal team in the Federal High Court Abuja, as same grossly contravenes Section 1(3) of the Nigerian Constitution as it is inconsistent and void abinito.

Futher more the offence of criminal libel and sedition (Criminal libel means the offence of making a malicious defamatory statement in a permanent form,Sedition means conduct or speech inciting people to rebel against the authority of a state or monarch)  provided in the Criminal Code as been long held to be inconsistent with the constitution of Federal Republic of Nigeria. It is pertinent to also note that the land mark decision in Auther Nwankwo v The State supra as delivered by Olatawura JCA is binding on all authorities and persons in Nigeria,speaking for the Court of Appeal,

 Olatawura JCA held inter alia:

“We are no longer the illiterates or the mob society our colonial masters had mind when the law was promulgated…To retain S. 51 of the Criminal Code, in its present form, that is even if not inconsistent with the freedom of expression guaranteed by our Constitution will be a deadly weapon to be used at will by a corrupt government or a tyrant…Let us not diminish from the freedom gained from our colonial masters by resorting to laws enacted by them to suit their purpose.” 

It is therefore submitted that the resort to criminal libel and sedition by public officers to settle scores with critics and or political opponents is illegal in every sense. Public officers who feel offended by any defamatory publication have been rightly advised by the Court of Appeal to defend their reputation and bruised ego by suing for libel in a civil court.

Nigerians like other citizens of the world have a fundermental ,divine right to hold their leaders accountable ,such rights are first endorsed by God and can not be surreptiously curtained by the scandal ridden bandwagon of the 8th Nigerian Senate.

Umoru Theophilus Iko-Ojo is a legal Practitioner based in Lagos State Nigeria.

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MARITAL RAPE UNDER NIGERIAN LAW & SALIENT ISSUES BY UMORU THEOPHILUS IKO-OJO ESQ

It is no secret  that under Nigerian Law a Husband CANNOT be accused of RAPING his wife , the criminal code and penal code excludes and excuses married couples from the crime of rape.

The Nigerian Criminal Code in Section 357 states that, “Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of harm, or by means of false and fraudulent representation as to the nature of the act, or, in the case of a married woman, by personating her husband, is guilty of an offence which is called rape.

Section 6 of the Criminal Code defines unlawful carnal knowledge as that which takes place otherwise than between husband and wife; and the offence is complete upon penetration. In other words, marital rape is not an offence in Nigeria. A husband cannot rape his wife. It is assumed that the wife gives implied general consent to sexual intercourse with her husband upon entering the marriage contract.” In his book, History of the Pleas of the Crown (1736), Sir Matthew Hale wrote, “But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract.”

In the Penal Code, Section 281(1) provides that: “A man is said to commit rape who… has sexual intercourse with a woman in any of the following circumstances – (a) against her will; (b) without her consent; (c) with her consent, when her consent has been obtained by putting her in fear of death or of hurt; (d) with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married; (e) with or without her consent, when she is under fourteen years of age or of unsound mind.

Similarly, under the Penal Code, there is no offence of marital rape, provided the wife has attained the age of puberty.

There have been various criticisms of the Criminal and Penal Code majorly on three (3) grounds;

(a) the offence of rape is gender specific,only men can commit the offence of rape.
(b) the act amounting to rape is limited to penile penetration of the vagina – anal or oral sex or penetration using objects or other parts of the body such as the tongue or finger, do not constitute sexual intercourse for the offence of rape; and
(c) marital rape – both codes provide (with certain exceptions) that sexual intercourse between a husband and wife cannot constitute the offence of rape.

In other words ,it is settled that by virtue of a woman consenting to lawful marriage ,she has consented to sexual intercourse by her lawful wedded Husband(I said lawful wedded please),however the country's legal system fail woefully to see the danger in this lacuna(loopholes).

Married women do get raped every day and it is pitiable that Nigerian lawmakers have turned blind eye to this Truth! Little wonder an attempt to criminalize Marital Rape in Nigeria in 2013 via the SEXUAL OFFENCE ACT was never assented to by the then President and the National Assembly never thought of pushing same after Mr President withheld his consent. The bill expanded the definition of rape to cover both genders; in other words, under the bill a woman is capable of committing the offence of rape. It also provided for a sexual assault offence for non-genital penetration, i.e., penetration with mechanical objects or other parts of the body like the finger or tongue. There was some controversy surrounding the bill particularly over the age of sexual consent.     The provisions in section 7 of the bill were misinterpreted as reducing the age of sexual consent to age 11 and the entire bill was resisted. This may have informed the President’s reluctance to give his assent and sign it into law.

The VIOLENCE AGAINST PERSONS(PROHIBITION) ACT 2015,which is only applicable in Abuja only recognises the fact that RAPE can be committed by both genders but didn't address the issue of MARITAL RAPE.  In other words a woman can commit the offence of rape .

Neither the Sexual Offences Bill nor VAPPA addresses concerns about marital rape. However, Lagos State has a domestic violence law that takes sexual offences beyond unlawful “carnal knowledge” and, in my thinking, prepares the ground for future prosecution of marital rape in Lagos State. This Lagos State law [The Protection Against Domestic Violence Law (2007)] was enacted to “provide protection against domestic violence and for connected purposes.

It is obvious that the so called loopholes in our SEXUAL OFFENCE LAWS are  obviously very intentional and not just an oversight.

It should be noted that under our laws a husband can be liable of raping his wife IF both of them are not in amity.When however they are in amity ,a husband depending on the circumstances can be charged for assault on his wife despite penetration and funny enough not the offence of rape against his wife !

However though,

Married women do get raped in their matrimonial homes  and the rape laws in Nigeria must take cognisance of that fact !

to be continued.......

Umoru Theophilus Iko-Ojo Esq is a Lagos based legal practitioner .
phylumoru@yahoo.com

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Adegboruwa’s Argument That IPOB Cannot Be proscribed Because It Is Not Registered Is Not Tenable - Okoi Obono Obla Esq

On Wednesday, September 20, 2017 the Federal High Court of Nigeria, Abuja division presided over by the Acting Chief Judge, The Honourable Justice Abdul Kafarati granted the application of the Honourable Attorney General of the Federation on behalf of the Federal Government of Nigeria on an order declaring the Indigenous People of Biafra illegal and proscribing it as a terrorist organization. Following the order, there have been reactions from a section of the public and civil society that the order proscribing IPOB is unconstitutional because IPOB is not a registered body in Nigeria. Okoi Obono-Obla, and Chairman Special Presidential Panel for the Recovery of Public Property, supports the order of the court on its declaration that IPOB is a terrorist organization and says the purpose of this treatise is to correct the impression that the order is unconstitutional.

According to him “The Terrorism (Prevention) Act did not stipulate that a body must be registered in Nigeria or elsewhere before it can be proscribed, within the contemplation of the provisions of Section 2 subsection 1 of the Act. Indeed Section 1 subsection (a-h) of the Terrorism (Prevention) Amendment Act, 2013 provide as follows thus:

A person or body corporate who knowingly in or outside Nigeria directly or indirectly willingly:
does, attempts or threatens any act of terrorism,
commits an act preparatory to or in furtherance of an act of terrorism,
omits to do anything that is reasonably necessary to prevent an act of terrorism,
assists or facilitates the activities of persons engaged in an act of terrorism or is an accessory to any offence under this Act,
participates as an accomplice in or contributes to the commission of any act of terrorism or offences under this Act,
assists, facilitates, organizes or directs the activities of persons or organizations engaged in any act of terrorism,
is an accessory to any act of terrorism, or
incites, promises or induces any other person by any means whatsoever to commit any act of terrorism or any of the offences referred to in this Act, commits an offence under this Act and is liable on conviction to maximum of death sentence.

Section 2 of the Terrorism (Prevention) Act provides that where two or more persons associate for the purpose of or where an organization engages in-

Participating or collaborating in an act of terrorism,
Promoting, encouraging or exhorting others to commit an act of terrorism, or
Setting up or pursing acts of terrorism, the judge in chambers may on an application made by the Attorney General of the Federation, National Security Adviser or Inspector General of Police on the approval of the President, declare any entity to be a proscribed organization and the notice shall be published in official gazette.”

He went further to say that “From the foregoing, by virtue of the provisions of Section 2 (1) (a) (b) & (c) of the Terrorism (Prevention) Act (supra), the argument that the so-called Indigenous People of Biafra (IPOB) cannot be proscribed because it is not registered in the Federal Republic of Nigeria is not tenable.”

Obono Obla also stated that Similarly, the argument that the proscription of IPOB is tantamount to an infringement of the right of freedom of association as enshrined by Section 40 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which provides that every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interest does not hold in this instance.

The Constitution in Section 45 (1) (a) & (b) thereof provides thus:(1) Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society (a) in the interest of defence, public safety, public order, public morality or public health; or

(b) for the purpose of protecting the rights and freedom or other persons.

“It follows that it is perfectly in order for the Federal Government of Nigeria in view of the terrorism unleashed by IPOB on those who do not subscribe to its separatist and violent ideology which threatens the fundamental rights of Nigerians and threatens national security, corporate and territorial integrity of the country to proscribed it in view of the provisions of Section 45 (1) (a) & (b) of the Constitution.Despite the right of freedom of association secured by Section 40 of the Constitution, Section 62 (2) of the Criminal Code prohibits unlawful society such as IPOB,” he said.

Section 62 (2) of the Criminal Code defines a society as unlawful:

(i) if formed for any of the following purposes‐

(a) levying war or encouraging or assisting any person to levy war on the Government or the inhabitants of any part of Nigeria; or

(b) killing or injuring or encouraging the killing or injuring of any person; or

(c) destroying or injuring or encouraging the destruction or injuring of any property; or

(d) subverting or promoting the subversion of the Government or of its officials; or

(e) committing or inciting to acts of violence or intimidation; or

(f) interfering with, or resisting, or encouraging interference with or resistance to the administration of the law; or

(g) disturbing or encouraging the disturbance of peace and order in any part of Nigeria; or

(ii) if declared by an order of the President to be a society dangerous to the good government of Nigeria or of any part thereof.

Undoubtedly, IPOB is an unlawful society within the contemplation of Section 62 (2) of the Criminal Code. Also, the President is vested with power by Section 62A of Criminal Code.

Section 62A of the Criminal Code provide that without prejudice to the provisions of section 62 of this Code, a society is an unlawful society if it is declared by an order of the President to be a society dangerous to the good government of Nigeria or of any part thereof, and for such purpose the consent of the Attorney-General of the Federation referred to in section 65 of this Code shall be construed as a reference to the consent of the Attorney‐General of the State.

It follows that the proscription order granted by Justice Kafarati is lawful, constitutional and proper.

speaking further, the Senior Special Assistant to The President on Prosecution said “It beats me as to how the argument put forward by Ebun-Olu Adegboruwa, an experienced and tested Legal Practitioner of many years standing, could use the principles of law designed and applicable to Civil Proceedings to argue that the order of proscription of IPOB is faulty because the body is not registered in Nigeria and therefore cannot sue or be sued.”

“It is beyond argument that the application for an order proscribing IPOB was brought pursuant to the Terrorism (Prevention) Act which to all intents and purposes a criminal legislation. It is well settled that the rules of procedure that regulates criminal proceedings in the Federal High Courts and the High Court of the Federal Capital Territory, Abuja, is the Administration of Criminal Justice Act,2015 (not the Federal High Court (Civil Procedure) Rules or the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004,” he said.
Obono-Obla said “It is clear the entire submission of Ebun-Olu Adegboruwa is premised on principles of law based on the construction and interpretation of the Rules of Practice and Procedure relating to civil proceedings. It is therefore non-sequitor.”

“It goes without saying that the order of proscription of IPOB is not in any way faulty in law as submitted by Ebun-Olu Adegboruwa,” says Obono-Obla.

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IPOB BAN :Buhari's Government,Judiciary Goofed ,Got it wrong!! By Umoru Theophilus Iko-ojo Esq

I have followed with keen attention the various happenings of the past few weeks in the Nigerian Nation,first the secession agitation, the recent deployment of the Military to the South-East by the Federal Government and the subsequent ban by the Military on the IPOB group and of course i would want to  in my usual fashion put certain things in proper perspective. This work' main focus is the the recent ban of the 'Independent People of Biafra' .

First,the TERRORISM (PREVENTION)ACT 2013, defines a terrorist as " a person who knowingly does ,attempts or threatens to do an act preparatory to or in furtherance of an act of terrorism........"(see Section 1)

It buttresses the "act of terrorism" , as an act which is deliberately done in malice  ,afterthought and which may seriously harm or damage a country or an international organisation.

However, if we are to focus on the reasons given by the Defence Headquarters ,the most relevant subsection that justifies the Declaration of the Independence of the People of Biafra (IPOB) as a "terrorist organisation" are under Part 1, which defines acts of terrorism to include that which "(I) duly compel a government or international organisation to perform or abstain from performing any act(II) Seriously intimidating a population (III) Seriously destabilizing or destroying the fundamental ,political ,constitutional ,economic or social structure of a country or  an international organisation;or (IV)Otherwise influence such government   or International organisation by intimidation or coercion ."

Subsection(c) includes an act "that involves or causes ,as the case may be ,an attack upon a person's life which may cause serious bodily harm or death"
Such acts include (ii) kidnapping of a person; (iii)destruction of government or public facility... "
Under Subsection (3) ,they also include "An act which disrupts a service but is committed in pursuance of a protest..."

Now,having stated the law as it is ,I am well amused as to the various opinions in support of the ban on  the Independent People of Biafra ,and i aver with utmost respect that under the anti -terrorism law ,the Military is not the appropriate body to declare the  Independent People Of Biafra ,a "terrorist organisation"!  The Law in Section 2 of the Terrorism Act provides thus;

"(1). Where two or more persons associate for the purpose of or where an organization engages
in—
(a) Participating or collaborating in an act of terrorism;
(b) promoting, encouraging or exhorting others to commit an act of terrorism; or
(c) setting up or pursuing acts of terrorism, the judge in Chambers may on an application made by the Attorney General, National Security Adviser or Inspector General of Police on the approval
of the President; declare any entity to be a proscribed organization and the notice should be published in official gazette.
(2). An order made under sub-section (1) of this section shall be published in the official gazette, in two National newspapers and at such other places as the judge in Chambers may determine.
(3). A publication made under sub-section (2) of this section shall contain such relevant particulars as the judge in Chambers may specify:
(i)a person who belongs or professes to belong to a proscribed organization commits an offence under this Act and shall on conviction be liable to imprisonment for a maximum term of 20 years;........."

The above section nullifies what ever "ban" was placed on the Independent People of Biafra (IPOB) ,and the insistence by the federal  government or South- Eastern Governors to further proscribe the IPOB is a desperate attempt to "demonize" the people of Biafra , as even the Federal Government can not on its own strength  proscribe the IPOB!

Secondly the Independent People of Biafra (IPOB) can not fall under the classification/definition  in Section 1 of the Terrorism Act ,as they have over the past few years of agitation engaged in peaceful protest for secession. They have not acted in any manner or form as to constitute "act of terrorism." 

The Role of the Courts.

      - Lets me state very particularly that a Court Order declaring a group a terrorist organisation should be exercised with caution and same should be exercised judicially and judiciously . First,before a court can pronounce a body a "terrorist organisation",such body must have;
(a) Participating or collaborating in an act of terrorism;
(b) promoting, encouraging or exhorting others to commit an act of terrorism; or
(c) setting up or pursuing acts of terrorism......, (see Section 2 of the Terrorism Act) .That body must also fit into  the entirety Section 1 of the of the Terrorism Act.

The recent Federal High Court Order declaring the IPOB a terrorist organisation is laughable and  smacks of bad faith and same should therefore  be discountenanced forthwith!  I would kindly advise the people of the IPOB to challenge same within the confines the law.

The Right of Secession of the IPOB.

    -Section 2 of the Nigerian Constitution provides thus:

"Nigeria is one indivisible and indissoluble sovereign state to be known by the name of Federal Republic of Nigeria"

Under our laws the act of secession by a section of the country is not an offence and there are no criminal consequences for same,in fact there is no record of any country in the world were secession is criminalised. Having said that, it is pertinent to note that the recent charge against Mr Nnamdi Kanu is grossly incompetent! It can be rightly recalled that Mr Kanu was charged under Section  41 of the Criminal Code Act,the section when closely read doesn't criminalise secession in any manner or form,it only criminalizes attempts(plan or intention) to overthrow a government. With all due respect,the agitation of the IPOB leader is majorly centered on  a particular section of Nigeria breaking away from the nation and its no way an attempt to overthrow a government!

Under International law,the right to self determination is recognised.
   - Article 20 of the African Charter (The African Charter like other international instruments have been domesticated into our laws by virtue of Section 12  of the Nigerian Constitution) ,provides more particularly for the secession of a marginalized and victimized ethnic group within a country to exist on its own and form its own government.  This is called the right to remedial secession under the International law ,this played out in Eritrea which seceded Ethiopia, Kosovo from Serbia, South Sudan from Sudan and the  list could go on. These countries however only seceded after many years of victimization and war from their parent countries .

The Failure of the Nigerian Leadership.

    - The fact that we have a failed leadership in the Nigerian Nation is no more news , while the Igbos can not be singled out  for persecution and human right abuses as this is also prevalent in other ethnic groups,however though,the constant years of leadership failure in Nigeria as led to the existence of many agitating groups like the bokoharam, Niger militants,Massob among others.

It is my candid view that the unity and co-existence of the Nigerian Nation should be brought to the front-burner and the Government should do more than  just fight the "Biafra" agitators when they have continually failed woefully in governance. Failure in governance breeds discontent among its people and that is what a responsible government should focus on - good governance.

It could be rightly recalled that former NBA President ,Mr Olisa Agbakoba , a Senior Advocate of Nigeria and an Igbo filed a fundamental right class action against the federal government for himself and behalf of the people of Eastern Nigeria ,the basis of the said suit is majorly the reason the IPOB is agitating for secession .

RE : Deployment of Troops to Eastern Nigeria.

     - The Constitution of the Federal Republic of Nigeria by virtue of Section 215(3) vest exclusively in the police the powers to maintain and secure public safety and public order in the country. The deployment of troops to any region of the Nation are only on such grounds as provided in Section 217(2) of the1999 Constitution provides thus;
          "The Federation shall,subject to an Act of the National
            Assembly made in that behalf,equip and maintain the
            armed forces as may be considered adequate and effe-
           ctive for the purposes of,          
   (a) defending Nigeria from external aggression,
   (b) maintaining its territorial integrity and securing its borders from  violation on land,sea or air,
   (c)suppressing insurrection and acting in aid of civil authorities to restore order when called upon to do so by the President,but subject to such conditions as may be prescribed by the Act of the National Assembly."

In other words ,the deployment of troops to the eastern part of the nation was done without proper consultation with the National Assembly.  Such powers CANNOT be exercised whimsically or "headlong" by Mr President ! The onslaught against the Igbo people is rather crude and Mr President's action is impeachable to say the least.

I advise the Federal Government to therefore take a civil approach to the IPOB agitation with the reasonable compassion to all concerned. The efforts of the Federal Government should be  centered on providing satisfaction to the citizenry through good governance , justice and equal redistribution of the collective wealth of the nation.

                        *******to be continued.

Umoru Theophilus Iko-Ojo is a Lagos based Legal Practitioner .

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SENATE REJECTION OF MAGU--WAY FORWARD BY FEMI FALANA (SAN)

Lagos lawyer and human rights activist, Mr Femi Falana, SAN has suggested three options for President Muhammadu Buhari following the refusal of the Senate to confirm his nominee, Mr. Ibrahim Magu as the substantive Chairman of the Economic and Financial Crimes Commission (EFCC).

Falana in a statement issued on Wednesday appealed to the president to ensure that the fight against corruption is not derailed by highly placed corrupt elements who have enlisted the support of fifth columnists and reactionary forces in the government.

The lawyer described Senate’s rejection of Magu as Chairman of the EFCC on the basis of a security report compiled by the State Security Service, as the height of official ridicule of the office of the President.

”It is high time the State Security Service was restrained by President Buhari from sabotaging the fight against corruption by the federal government.

The three options highlighted by Falana to the president are:

1. Mr. Magu’s nomination may be re-presented to the Senate if and when the Federal Government decides to put its house in order

2. Alternatively, the President may allow Mr. Magu to remain the Acting Chairman of the EFCC since he was appointed in that capacity pursuant to section 171 of the Constitution.

3.If the President is not satisfied with Mr. Magu’s performance he is at liberty to appoint another person whose nomination will be forwarded to the Senate in accordance with section 2 (3) of the EFCC Act, 2004.

Read Falana’s full statement below:

Rejection of Magu’s nomination by the Senate: options open to President Buhari

The rejection of the nomination of Mr. Ibrahim Magu as the Chairman of the Economic and Financial Crimes Commission (EFCC) this afternoon by the Senate on the basis of a security report compiled by the State Security Service is the height of official ridicule of the office of the President. It is high time the State Security Service was restrained by President Buhari from sabotaging the fight against corruption by the federal government

With respect to the Senate the confirmation hearing hurriedly conducted today is illegal in every material particular. The participation of many senators who are either under investigation or being prosecuted by the EFCC has vitiated the entire proceedings of the Senate on ground of conflict of interest. It is also a contravention of the Rules of the Senate which stipulates that matters which are sub judice shall not be discussed by the Senate.

However, notwithstanding the rejection of the nomination of Mr. Magu by the Senate the options open to President are clear and straight forward. They are as follows:

1. Mr. Magu’s nomination may be re-presented to the Senate if and when the Federal Government decides to put its house in order

2. Alternatively, the President may allow Mr. Magu to remain the Acting Chairman of the EFCC since he was appointed in that capacity pursuant to section 171 of the Constitution.
3. But if the President is not satisfied with Mr. Magu’s performance he is at liberty to appoint another person whose nomination will be forwarded to the Senate in accordance with section 2 (3) of the EFCC Act, 2004.

In the light of the foregoing, President Buhari is enjoined to ensure that the fight against corruption is not derailed by highly placed corrupt elements who have enlisted the support of fifth columnists and reactionary forces in the government.

Femi Falana (SAN) is a Lagos based Legal Practitioner.

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Legal Implications Of The Senate’s Rejection Of Magu’s Nomination By Inibehe Effiong ESQ

On Thursday December 15, 2016 the Senate of the Federal Republic of Nigeria held an executive session during which it rejected the nomination of Mr. Ibrahim Magu as the Chairman of the Economic and Financial Crimes Commission (EFCC) by President Muhammadu Buhari based on an adverse ‘’security report’’ authored by the State Security Service (SSS).

Unsurprisingly, the decision of the Senate has triggered controversy on whether Mr. Magu can validly continue in his capacity as the Acting Chairman of the EFCC in the light of the disapproving decision of the Senate. This intervention seeks to offer clarification on the issue based on the enabling and relevant legal authorities.

On the mode of appointing the Chairman of the Commission, the relevant statutory provision is Section 2(3) of the Economic and Financial Crimes Commission (Establishment) Act Cap. E17 LFN , 2004. It provides thus:

‘’The Chairman and members of the Commission other than ex-officio members shall be appointed by the President and the appointment shall be subject to the confirmation of the Senate.’’

The above provision subjects the appointment of the Chairman of the Commission by the President to the concurrence and confirmation of the Senate. We submit that the EFCC (Establishment) Act does not expressly provide for the position of an Acting Chairman of the Commission, it only provides for a substantive Chairman.

Flowing from the above, two issues necessarily arise for determination:

Where does the President derive the power to appoint an Acting Chairman of the Commission?; and
Can Magu continue to act as the Acting Chairman of the Commission despite the rejection of his nomination, having regards to Section 2(3) of the EFCC (Establishment) Act quoted above?

In resolving the twin issues formulated supra (above), the provisions of Section 11 of the Interpretation Act Cap. 123, Vol. 8, LFN, 2004 are apposite. For clarity and ease of reference, the said provisions are wholly reproduced infra (below):

11. Appointment

(1) Where an enactment confers a power to appoint a person either to an office or to exercise any functions, whether for a specified period or not, the power includes−

(a) power to appoint a person by name or to appoint the holder from time to time of a particular office;

(b) power to remove or suspend him;

(c) power, exercisable in the manner and subject to the limitations and conditions (if any) applicable to the power to appoint−

(i) to reappoint or reinstate him;

(ii) to appoint a person to act in his place, either generally or in regard to specified functions, during such time as is considered expedient by the authority in whom the power of appointment in question is vested.

(2) A reference in an enactment to the holder of an office shall be construed as including a reference to a person for the time being appointed to act in his place, either as respects the functions of the office generally or the functions in regard to which he is appointed, as the case may be.

Before proceeding to examine the ramifications and effect of the elaborate provisions above, it should be borne in mind that the Interpretation Act is a special piece of legislation that gives direction on the meaning of words, expressions and interpretation of the provisions of all other laws enacted by the legislature. Where there is an interpretative lacuna or controversy in a statute regarding the meaning and application of certain words, expressions and or provisions, the Interpretation Act is usually resorted to by the courts for succor.

It is our firm contention that the President has the requisite vires (powers) to appoint an Acting Chairman of the EFCC. We reference Section 11(1)(c)(ii) of the Interpretation Act in support. The said provision has clothed the President with the authority to appoint another person to act in the place of a substantive Chairman of the EFCC. Unlike the appointment of a substantive Chairman which requires the confirmation of the Senate, the President does not need the confirmation of the Senate to appoint an Acting Chairman of the Commission.

On the second issue, we submit that the decision of the Senate to reject the nomination of Magu for the position of substantive Chairman of the EFCC has no upsetting consequence in law on his earlier appointment as the Acting Chairman of the EFCC by President Buhari on November 9, 2015.

The Interpretation Act does not specify the term of office or period for which the acting chairmanship is to subsist. Section 11(1)(c)(ii) of the Interpretation Act seems to give the appointing authority the discretion to determine how long the acting or temporary appointee is to serve. This reasoning appears inevitable given the use of the expression ‘’during such time as is considered expedient by the authority in whom the power of appointment in question is vested’’ in the cited provision.

It is an elementary principle of statutory interpretation that where the words and expressions used in a statute are clear and unambiguous, they must be given their natural and ordinary meanings unless to do so would lead to absurdity or inconsistency with the rest of the statute. See the recent decision of the Supreme Court in Okoye v. C.O.P. (2015) 17 NWLR (Pt. 1488) 276 at 320. The expression ‘’during such time as is considered expedient by the authority in whom the power of appointment in question is vested’’ is clear and unambiguous.

In the instant case, the President is the appointing authority under Section 2(3) of the EFCC (Establishment) Act. He is the person vested with power under Section 11 of the Interpretation Act to appoint an Acting Chairman in lieu (in the absence of) of a substantive chairman. Accordingly, Mr. Magu will continue to act as the chairman of the EFCC if his retention is considered expedient by President Buhari. It does not lie in the mouth of the Senate to say what is expedient in the circumstance. The parameters for determining the expediency of Magu’s continued acting leadership of the EFCC belongs to President Buhari.

However, we submit that there are two identifiable limitations or exceptions to the power of the appointing authority under Section 11 of the Interpretation Act to determine the duration or tenure of a person appointed in an acting capacity based on what is considered expedient by the appointing authority. These exceptions will be shown using the present case of Ibrahim Magu.

First, we submit that Magu cannot legally serve in an acting capacity BEYOND the term permissible for a substantive chairman of the Commission. Section 3(1) of the EFCC (Establishment) Act states that ‘’the Chairman and members of the Commission other than ex-officio members shall hold office for a period of four years and may be re-appointed for a further term of four years and no more.’’ It would be absurd for anyone to suggest that a person who is appointed in an acting capacity can serve in that capacity beyond the statutorily allowable tenure for the substantive appointee. The President’s power to appoint an Acting Chairman of the EFCC under Section 11 of the Interpretation Act is derivable from and only incidental to his power to appoint a substantive Chairman under Section 2(3) of the EFCC (Establishment) Act. Therefore, Magu cannot continue in his acting capacity beyond the four years term (in the first instance) allowed for a substantive Chairman.

Second, it is our humble view that Magu’s tenure as the Acting Chairman of the Commission MUST BE LESS THAN the four years period stipulated for a substantive Chairman. The gravamen of this contention is that the words ‘act’ and ‘acting’ when used in relation to a position, by their ordinary grammatical and juristic meaning presupposes a state or status of temporariness as opposed to permanency. Few dictionary definitions will suffice. The Interpretation Act does not define ‘act’ or ‘acting’. The Oxford Advanced Learners Dictionary, 6th edition, page 11 defines ‘acting’ as ‘’Doing the work of another person for a short time…’’. Law Guide, (www.thelaw.com) an online legal source, defines ‘acting’ as ‘’Temporary performance. Frequently referring to a temporary position performing and carrying out the duties of an office without actually holding the position.’’ Lastly, the Merriam-Webster Dictionary, online version, variously defines ‘acting’ as ‘’performing a job for a short time’’ and ‘’holding a temporary rank or position’’.

Does the law give recognition and effect to dictionary definition of words in the interpretation of statutes? The answer is in the affirmative. Reference is made to a recent decision of the Court of Appeal in Alechenu v. University of Jos (2015) 1 NWLR (Pt. 1440) 333 at 361, paras. C-D, where the appellate court, per BDLIYA, J.C.A., held inter alia: ‘’Where words used in a Statute are not defined therein, a resort to the dictionary meaning of such words is permissible…’’

The totality of the above exposition is that a person who is appointed into a position in an acting capacity cannot exhaust or complete the full term of that office or position. A person can either be appointed in an acting capacity to complete the remainder term of the substantive appointee whose office has become vacant either by reason of death, resignation, removal or for other cause OR to occupy the position temporarily pending when a substantive appointment is made. Anything other than this is legally indefensible.

The legal implications of the two exceptions espoused above are that Mr. Magu can continue in his position as the Acting Chairman of the EFCC at the pleasure of President Buhari. However, the President in deciding the expediency for the continued retention of Mr. Magu in an acting capacity must ensure that Magu’s acting tenure does not exceed, but is actually less than the four years period stipulated in Section 3(1) of the EFCC (Establishment) Act.

As a postscript, the President is at liberty to re-submit Magu’s name to the Senate for re-consideration and possible confirmation. The Senate’s decision whether to accept or reject the nomination is absolute, provided same is done in conformity with the constitutional requirement for quorum and the Standing Orders of the Senate.

The fight against corruption in Nigeria is being trivialized. President Buhari should bear in mind that if he fails in his anti-corruption campaign, he has failed in everything. It is indeed a tragic irony that the very infamous Senator Bukola Saraki-led Senate, with all its scandals and embarrassing pedigree, is lecturing President Buhari on corruption.

The fact that the alleged indicting security report which formed the fulcrum upon which the Senate acted in rejecting Magu’s nomination was authored by the SSS, an agency under the presidency, loudly evinces the apparent lack of coordination and effective leadership in the country. It is either President Buhari is not in charge of his government or he is trying to use corruption to fight corruption.

The troubling message from this unsettling scenario is that Nigeria is far from being salvaged. We can only hope that the evil forces in the corridors of power will not completely pollute and destroy our nation.

Thank you.

Inibehe Effiong is a Lagos based Legal Practitioner and Convener of the Coalition of Human Rights Defenders (COHRD) and can be reached at: inibehe.effiong@gmail.co

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