Category: BLOG

The illegalities of Executive Order 6 and Travel Ban (1)

SOME few weeks ago, Nigerians woke up to learn about a certain Executive Order No. 6 of 2018, on the preservation of suspicious assets connected with corruption and other relevant offences. By this Order, it is expected that persons affected thereby will be denied access to any sum of money that is suspected to be a proceed of crime. The president, in signing this order, placed heavy reliance upon Section 5 of the Constitution of the Federal Republic of Nigeria, 1999 as amended.

The general purport of Executive Order No 6 of 2018 is to place a general restriction upon dealings connected with suspicious assets subject to corruption related investigation or inquiries, in order to preserve same. It then listed in its schedule several cases already filed in court, against certain named individuals.

By simple logic, the target of the president in signing this Order is suspicious assets, not persons. Also, these suspicious assets are deemed to be subject of ongoing investigations or inquiries, meaning clearly that they are outside the purview of ongoing prosecution or existing court proceedings. Executive Order No.6 in its schedule would, however, proceed to list a number of pending cases which have already been filed in court with extant charge numbers, taking order away from suspicious assets. So, from the outset, the schedule is fighting against the order itself.

An asset or a person is under investigation when it or he has not been subject of any court proceedings, as once a charge or information has been filed before a court of law, it is outside the province of investigation or inquiry; what is left is immediate prosecution. The logic here is that the prosecution will not prefer a charge against any person unless investigation has been concluded and a prima facie case has been established, necessitating the need to file an information against the suspect, in court. So, you cannot arraign a person before a court and at the same be claiming to be investigating the same person; it’s a huge contradiction, both in law and in fact. Thus, the locus classicus case of Ogor v. Kolawole (1983) 1 NCR 342, is very instructive on this point. In that case, the applicants had applied for a declaration that the orders remanding them in custody were unconstitutional and applied for the quashing of the orders. The magistrate had, in a charge against the applicants, refused the applicant’s bail in order to afford the police more time to conduct their investigation without interference and remanded the applicants in custody. Ayorinde J, (as he then was), in quashing the said remand order, gave a most logic and sound dictum as follows: “The reason given by the first respondent suggests that he was under the impression that the police had not completed their investigation of the offences supposed to have been committed by the applicants before the latter were brought to court.” His Lordship further went on to hold that by virtue of section 18 of the Criminal Procedure Ordinance (which has been replicated as section 31 of the ACJA), “it may be said that a police officer is expected to release a suspect in a criminal complaint on bail where investigations into the complaint have not be completed.”

The High Court judge therefore, in relying on Section 32(4) of the 1979 Constitution of Nigeria (now section 35(4) of the 1999 Constitution) held that it will be wrong in law and unconstitutional to incarcerate or keep an accused in custody, pending the completion of investigations into the complaint against him… It should be assumed that criminal cases when taken to court are ripe for hearing, not for further investigation, and that they are not there on mere suspicion, which cannot be regarded as reasonable suspicion as required under Section 32 (1)(c) of the Constitution (now 35(1)(c) of the 1999 Constitution).

It is, therefore, manifestly clear, that the executive arm of government cannot reasonably rely upon Section 5 of the Constitution to distrain assets of citizens that are subject of criminal prosecution in a court of law. It is a contradiction of the absurd. The prosecution, either through the police, the EFCC, ICPC, Customs, NAPTIP, etc, is part and parcel of the executive arm of government. The powers to be exercised by these agencies on behalf of the executive over suspects and their assets is limited in law, to when they are still under investigation. And that is why Section 31(1) and (2) of ACJA has granted wide powers to the executive to deal with this. However, once a person has been arraigned before a court of law, he leaves the realm of suspicion or investigation by the executive.

Section 5 (1) (a) and (b) of the 1999 Constitution provides as follows:

“Subject to the provisions of this Constitution, the executive powers of the Federation –

  1. Shall be vested in the President and may, subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of Government of the Federation or officers in the public service of the Federation; and
  2. Shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly to all matters with respect to which the National Assembly has, for the time being, power to make laws.”

It is trite that the constitution is seen as a body of fundamental principles or established precedents according to which the state and all its agencies are acknowledged to be governed. It is a charter, social code, canon, body of laws, rules and regulations which guarantees inalienable fundamental rights to certain freedoms inherent in human beings. However, executive orders as apparently seen in the current administration seems to negate from these basic principles, tenets of law and governance, as enshrined and guaranteed under the 1999 Constitution.

In the whole gamut of Executive Order No 6, there is nowhere reference is made to any law or regulation that the executive seeks to maintain, through this order, save to seek to preserve assets subject of criminal prosecution before the court. Section 5 does not confer any power on the executive to maintain or preserve pending court cases.

Just in the same way that Section 5 of the Constitution vests executive powers in the president, so also has section 4 thereof vest upon the legislature, the power of law making. That power is deemed to have been exercised for the promulgation of the 1999 Constitution which, in its sections 35 and 41 respectively, has granted the right to personal liberty and freedom of movement, to all citizens. These sections can be altered, either by amending the Constitution, or through judicial intervention, by the court, but surely the executive arm of the realm cannot rely upon Executive Order No. 6 of 2018 as the basis of tinkering with constitutional provisions. The liberty of a citizen is as sacrosanct as the right to life, it shouldn’t be toyed with or threatened just by the fiat of the executive arm. Ditto the freedom of movement.

The same Constitution has also empowered the courts, in Section 6 thereof, with the power of adjudication, in respect of all disputes. So, if the executive, either through the regular police force or specialised agencies such as EFCC or ICPC, has raised certain allegations against a citizen through an information filed in court, it becomes a dispute, which has entered the realm of judicial powers, taking such dispute completely away from the executive.

In this regard, it will be a constitutional aberration for the executive to submit a dispute before the court through an information already filed and entered in the court, and at the same time seek to regulate, take over or monitor the assets of persons already charged to court as defendants. That surely is not the purport of Section 5 of the Constitution, as the same document cannot be read to be fighting itself, to give powers to the courts and then at the same time empower the executive to steal those powers, through Executive Orders.

The doctrine of separation of powers, therefore, means that the three arms of government must function independently and without interference from another arm, save in situations of checks and balances, for the ultimate good of the state and the citizens.

In Executive Order No 6 of 2018, the executive arm is combining the power of legislation along with the power of adjudication, leading to a situation of dictatorship, conflict of interest and totalitarianism. That should not and cannot happen in a constitutional democracy. So, in this regard, resort to examples in Britain and other jurisdictions are unhelpful to interpret the express provisions of our own unique Constitution.

Indeed, there are other extant legislations, such as the EFCC Act, which contain ample provisions, for the interim or permanent forfeiture of assets subject of criminal prosecution, as to totally make Executive Order No 6 of 2018, unnecessary.

Executive Order 6 becomes manifestly illegal, the moment it listed several criminal cases already filed and pending before various courts, in its First Schedule, altogether numbering about 155. The executive arm cannot be dragging the issue of jurisdiction with a court properly created by the constitution, as courts are always mindful to guard their jurisdiction, jealously. Consequently, the courts should find no difficulty in striking down Executive Order No 6.

There Is Need For Judges To Avoid Ex parte Orders That Can Truncate Democratic Processes — Onyekachi Umah

MAY WE KNOW YOU, SIR?

My name is Onyekachi Umah.

WHO IS ONYEKACHI UMAH, ESQ IN DETAILS?

Onyekachi Umah is a husband and a private legal practitioner with amazing experience in intellectual property, transaction and regulation advisory, corporate, commercial and investment law and energy law as well as litigation and arbitration arising from them. He is a certified arbitrator both in Nigeria and the United Kingdom. He is a member of the Chartered Institute of Arbitrators (UK) and a Certified Conflict Management Practitioner. He is a member of prestigious “Young ICSID” of International Centre for Settlement of Investment Disputes (ICSID), Washington DC. Among other, he has a certificate in Law of Contract from a program of Harvard University, a certificate in International Environmental Negotiation from United Nations Institute for Training and Research, Geneva and recently, a certificate in Conflict Management from United States Institute of Peace, Washington, D.C. He also holds a master of laws degree from University of Jos.

He is the managing partner of a leading law firm; Bezaleel Chambers International. He is the founder and President of a free law awareness platform known as www.LearnNigerianLaws.com that promotes awareness and understanding of rights and laws of Nigeria (#SabiLaw) and offers free daily law tips (#DailyLawTips). Understanding the challenges of Administration of Criminal Justice in Nigeria, he dedicates his daily law tips every Mondays to promoting Criminal Justice (#CriminalJusticeMonday). Recently, he started a new series on Election Laws tagged (#SabiElectionLaws) to increase legal awareness on elections laws, policies and regulations in Nigeria. He is the convener of the Sabi Law Lecture Series (#SabiLawLectureSeries), travelling around Nigeria delivering free law awareness lectures. He also organises and sponsors a quarterly competition, titled “Sabi Law Video Challenge” (#SabiLawVideoChallenge) were Nigerians win money (over $130.00 per winner) for making videos of themselves talking on any law or right as a way to promote law awareness and have fun. To further promote legal awareness among Nigerians across the world, he started a law awareness show titled “Sabi Law With Onyekachi Umah, Esq” (#SabiLawWithOnyekachiUmahEsq) showing on social media platforms via @LearnNigerianLaws.

Mr. Umah has written over Three Hundred (300) free to access articles and materials on law with a desire to enlighten the public. He is also the Assistant Secretary of Nigerian Bar Association, Capital Bar, Abuja and a member of the Rotary Club of Abuja, Metro (RCAM), District 9125. Among others, he is serving as a member of the Advisory Committee for Law Clinics Partnership for Reforming Pre-trial Detention in Kuje Prison Project funded by the United States Department Bureau for International Narcotics and Law Enforcement. He has been featured as the Legal Personality of the Week by This Day Newspaper (a leading national newspaper) on its September 11, 2018 edition and has also won several awards for his innovative legal practise across the world.

HOW LONG HAVE YOU BEEN IN LAW PRACTICE?

I have been practicing law in Nigeria for about 8 years.

ARE YOU THE AUTHOR OF “DAILY LAW TIPS”.

Yes, I am the author of “Daily Law Tips” published on www.TheNigerianLawyer.com and  www.LearnNigerianLaws.com

 HOW DID “DAILY LAW TIPS” START?

Well, since my days as a student, I have had people calling for advices and tips on their rights. As a practicing lawyer, I receive numerous calls from clients, strangers, fellow lawyers and friends, asking for clarifications, tips, “how-Tos” and “What-To-Dos” on rights, duties, laws and policies affecting them, their families and business. Majority of the questions are on human rights, employment, tenancy, family, criminal, business regulation, justice administration, immigration, probate, tax and commercial law.  Often times, questions are repeated and my answers are undocumented considering the means of communication and as such they cannot not easily be stored and passed on to another person in need.

Bum, an idea came in December 2017, when Nigerian police was harassing Nigerians on use of Christmas fireworks without any legislative authority. I recorded my tips on the subject matter and shared it on social media to ensure people are not intimidated by police and punished for no offence. Since it was a season for settlement of family and traditional land disputes across villages in Nigeria, I wrote a lot of tips on the subject matter and shared freely. The response from my family, friends and fans were amazing and encouraging. So, I stopped repeating myself, since I could easily refer people to my earlier answers to their questions. I started writing my responses to questions as “Daily Law Tips”, sharing same for free across the world. As at today, we have published over 220 daily law tips on numerous areas of Nigerian laws and regulations, shared on Facebook, Instagram, Twitter, LinkedIn, Google+, MyBusiness and WhatsApp for free with over 11 Million views.

WHAT IS THE MOTIVATION BEHIND YOUR “DAILY LAW TIPS”.

First of all, out of experience, most cases in Nigeria are avoidable with due diligence. Stereotypes, religion, poor educational level, poor legal literacy, disregard for formal agreement and lack of trust in judiciary have increased disagreement and disputes in Nigeria. Apart from pre-election and election petitions, majority of civil cases are mere small claims that can be avoided by a little understanding of rights, simple agreement and due diligence (background checks). Hence, my motivation is to freely offer my experience, knowledge and understanding of law to all Nigerians across the world via “#DailyLawTips” as a means to increase access to justice, increase understanding of law and demand for rule of law in Nigeria.

WHAT CHALLENGES DO YOU FACE IN PUBLISHING YOUR “DAILY LAW TIPS”.

To run a daily publication, requires special grace, hard work and perseverance in order to keep up with delivery time and maintain standards. As a Nigerian residing in Nigeria, I battle with unreliable electricity supply and internet services. To combat them, I generate and supply my own electric power and since I cannot do same for internet, I have existing subscription with four (4) telecommunication companies at all times. Considering the nature of my work as a practicing lawyer, I travel a lot and there are no internet services in most airports except in their VIP lounges. Worse still, in Enugu Airport, there has been no internet in the VIP lounge maintained by government and I still get to pay same service fee any time I stay in the VIP lounge. So, to research and publish on the go like I do, it quite expensive in Nigeria. Time is the most expensive assets I put into the project, having in mind alternative forgone.

AS A PRACTICING LAWYER, WHAT ADVICE DO YOU HAVE FOR THE JUDICIARY.

Among the three arms of government, Judiciary is the less respected and funded. There is need for absolute separation of power and rule of law for our democracy to deepen. The executives must respect court orders. Elections are around, there is need for judges to avoid ex parte orders that can truncate democratic processes. Bribery and corruption should not be sighted in our judiciary rather impartiality and wisdom. For us, the practicing lawyers, we waste a lot of time waiting for judges who may be sick or out on administrative engagements. I advice that judges’ calendars should be consulted before fixing courtesy calls, parades and appointments that take them off court.

I look forward to a judicial system, where lawyers need not come to court before 9:00am only to be heard by 3:23pm after a long wait and loss of other businesses. Cases should be adjourned to clear dates and times, so that lawyers come in to do their cases about 10 minutes before the commencement time, to avoid waste and increase productivity. Often times at the Court of Appeal and Supreme Court in Abuja, I wait for over five (5) hours only to be heard to do my case for the day for 25 minutes. Still on the Court of Appeal, there is need to offer three microphones to all members of a panel instead of only to the presiding judge since all members get to talk and the microphone is stationed.

DO YOU SUPPORT THE CONFERMENT OF THE TITLE OF SENIOR ADVOCATE OF NIGERIA ON OUTSTANDING LAWYERS?

Yes, I do. Life progresses where there is a motivation and hard work must be appreciated. Apart from win smiles of clients, touching lives and making monies the next inspiring factor for young lawyers in Nigeria is the title of Senior Advocate of Nigeria. Some lawyers are sane and upright not because of training alone, eagle eye of disciplinary committee but because they want the blessing of our Legal Practitioners Privileges Committee. So, it has a way of holding our ethics and identifying mentors for younger professionals. I support the title and I desire it.

IS THERE A BRIGHT FUTURE FOR NIGERIAN LAWYERS IN NIGERIA?

There is a very bright future for lawyers in Nigeria and many more to come. Going by statistics, there are 16 Federal faculties of law, 20 State faculties of law and 19 private faculties of Law. There are only 6 Law School Campuses in Nigeria and 1,550 candidates were called to bar in July, 2018 while 4, 633 candidates will be called to bar by this November, 2018. From a reliable source, there are not up to 100, 000 lawyers in Nigeria. Nigeria has a population of 197,403,529 as at October 27, 2018, based on the latest United Nations estimates. Hence, roughly a single lawyer in Nigeria has more than about 1,974 Nigerians to engage his services. Also remember that the population of Nigeria is growing uncontrollably while the graduation of lawyers is controlled. The natural resources of Nigeria and economic potentials will keep increasing Nigeria’s foreign direct investment, thereby increase number of foreigners and business in need of lawyers and their legal services. Above all, foreign lawyers are not authorized to practice in Nigeria, so Nigerian lawyers are immune from the annoying importation appetite of Nigerians. I am not unaware of some dubious foreign businesses here in Nigeria, secretly engaging foreign lawyers on Nigerian soil. So, Nigeria is a wonderful country to practice law and there is a geometric growth of legal literacy among Nigerians, thereby increasing demand for rule of law and access to justice.

WHAT ADVICE DO YOU HAVE FOR YOUNG LAWYERS?

Legal practice is for lawyers that are dedicated to hard work! Nothing good comes easy and nothing is magical here. You need to prove yourself, think out of the box and fly with technological advancements. Ensure you use To-do lists and consciously time your day and activities to ensure maximum productivity. If you want quick money, please don’t practice law!

It Is An Offence To Make Tribal Marks Or Tattoos On A Child In Nigeria

by Onyekachi Umah,Esq.

“IT IS AN OFFENCE TO MAKE TRIBAL MARKS OR TATTOOS ON A CHILD IN NIGERIA”

It is a criminal offence to make any tattoo or marks including tribal marks on a child in Nigeria. It is punishable with a fine of not more than N5000 or and a month imprisonment.

My authorities are sections 24 and 278 of Child Rights Act, 2003.

 

NOTE: Sharing or modifying or publishing this publication without giving credit to Onyekachi Umah, Esq. and “LearnNigerianLaws.com” is a criminal breach of copyright and will be prosecuted. Please share this publication till it gets to those that need it most. Save a Nigerian today!

CROCODILES ARE NOT COMEDIANS, THEY DON’T SMILE

The Nigerian Army on November 1, flagged off   “Operation Crocodile Smile Three 2018”  in  Bayelsa  State while that of Delta  State was launched the next day. The ‘Operation’ is in the Niger Delta which has experienced decades of repression, abandonment, neglect,  pollution and deepening poverty despite producing oil, the  country’s  mono-culture.

The General Officer Commanding (GOC) 6 Division Nigerian Army, Port Harcourt, Maj.-Gen. Jamil Sarham, who launched the operation on behalf of  the Chief of Army Staff (CAS), Lt.-Gen. Tukur Buratai  claimed that: “It is aimed at riding communities from (sic)  crimes and basically to safeguard lives and properties.”

This is the third “Operation Crocodile Smile” in the Niger Delta and nothing in the last two operations has taught the army that rather than intimidate, it needs the support of the people.  First, the code name of the operation is offensive and connotes negativity and unfriendly intentions.

The people are   riverine, so they fully understand the nature of crocodiles. In the over  7,000 years some of them have lived in those ancestral lands, they know that the crocodile is not a comedian; so it does not smile. A true smile conveys warmth, friendliness and good intentions. But the smile of the crocodile is deceptive; it masks evil intentions and thoughts. The smile of the croc is sinister; it is more of a smirk, a sneer. The people know that the  smile of a croc, hides a dark secret. They are aware that when the croc smiles, it is thinking of its next meal; how to kill its next victim. It is very much like crocodile tears which is exaggerated sorrow to mask its true feelings. Croc tears  are fake or tears of joy because the crocodile sheds tears when it is eating and enjoying its victims.

As we know amongst humans, crocodile smile, is the smile of crooks, phony friends and cunning politicians   who fake their real intentions and are deceitful and untrustworthy.

So why would the Nigerian Army code name its operations amongst the long suffering people of the Niger Delta, ‘Crocodile  Smile’? Is this  its true intention or the army leadership suffers from lack of understanding the English language and expressions?

Secondly, the stated objectives of the army are normal police duties, not military. We have the Nigeria Police Force (NPF) whose primary duty and responsibility is to fight crime and keep our communities safe, while that of the army is to protect our territorial integrity. So why should we continue the  negative tradition which started with the December 1983 coup when the military began  performing   civilians duties including community policing?  Why should we allow soldiers to run through our communities when they are not trained to maintain law and order amongst the civil populace? The army, after days of gunning down Shitte protesters in Abuja, cockily pronounced that it does not have rubber bullets to control a riotous situation, it has only live bullets. So why should our political and military leaders send out soldiers armed only with live bullets to contain public protests, which by the way, is the constitutional and fundamental right of all Nigerians?

The Nigerian Army simply launches so called operations, like Crocodile Smile, without reporting back to the public the outcome. So it is difficult to assess the success or failure of such naked display and use of fire power. However,   we have the report of the victims of Operation Crocodile Smile I and II.

The Ijaw Youth Council (IYC), the umbrella organization  of Ijaw youths in the Niger Delta  in opposing “Operation Crocodile Smile Three 2018” stated that:  “The only success stories it can boast of in the previous exercises was the human rights abuses occasioned by the criminal invasion and destruction of Ijaw communities without provocation.”

The IYC in its Report signed by its National President, Pereotubo Oweilaemi claimed that: “When it first launched the exercise in 2016, the military used the peaceful Gbaramatu Kingdom in Warri South West LGA of Delta State as its theater of war, thereby maiming and harassing innocent citizens which culminated in the sacrilegious invasion and looting of the sacred Gbaraun Egbesu Shrine…while innocent Oporoza youths numbering about twenty, were arrested and dumped in its dungeon without trial for more than a year before they were released courtesy of public outcry”.

The IYC  also reported  that in that 2016 Operation, the military terrorized other Niger Delta communities adding: “Ajapa, Safarogbo and Igangbo in Ondo State were completely burnt down by the marauding Joint Task Force.”

The youths association further reported that: “Its second coming in 2017 was another horrible experience for the  Ijaw people in the Niger Delta. In the name of carrying out mop-up operations, the said trigger-happy and gun-wielding military Joint Task Force invaded and destroyed Ajakurama Community in Egbema Kingdom in Edo State, while some innocent communities were terrorized in Nembe Kingdom and environs in Bayelsa State in the name of searching for pipeline vandals. In Bennet Island in Ogbe-IIjoh Warri Kingdom, the experience was the same.”

While I cannot verify  that the IYC Report is entirely true, most  of the incidents it referred to were covered by the mass media. Secondly, the army has neither refuted the Report nor released its own to the public.

Also, the Army  Command displays a high sense of insensitivity   by its choice of personnel to run such an operation;  none of the officers publicly identified with ‘Operation Crocodile Smile Three 2018’ is from the Niger Delta or its environs. The News Agency of Nigeria (NAN) report identified the top military brass connected as the said Maj.-Gen. Sarham, and the Commander, Sector 1, Operation Delta Safe (OPDS), Col. Alhassan Grema, and  Commanding Officer 3 Battalion, Effurun, Maj. Salim Hassan. Of course,  there  is  Lt.-Gen. Tukur Buratai (CAS) who sent them to the Niger Delta. So how can the Niger  Delta people feel safe or comfortable?  Indeed, how can Nigerians feel safe or comfortable with an army which evokes   fear rather than radiate   love?

The military had displayed a similar lack of tact when it unleased  ‘Operation Python Dance’ (Egwu Eke) on the Eastern part of the country. The people know that the python is not a disco dancer; that it neither dances the Blues nor tango. Rather, they know the python as a deadly snake which while not venomous, kills its prey by slowly squeezing it to death. Today ‘Operation Python Dance’ is in its Third Season. In Season II, it carried out a quite bloody repression of   the Indigenous People of Biafra, IPOB. To-date, Nigerians have not been told the number of people killed or injured in that operation. It is time to streamline   the role of our armed forces and security agencies with democratic principles.

Written by Owei Lakemfa.

Is Industrial court bound by Sheriffs and Civil Process Act?

There is currently a legal logjam as to whether the Sheriffs and Civil Process Act, specifically Section 97, applies to a writ issued by the National Industrial Court of Nigeria.

As of today, the National Industrial Court of Nigeria, which was created pursuant to the Constitution of the Federal Republic of Nigeria (Third Alteration Act, 2015), has about 15 divisions in about 15 states of the federation.

The National Industrial Court of Nigeria is a superior court of record by virtue of the Constitution of the Federal Republic of Nigeria (Third Alteration Act, 2010). The Alteration Act amended sections 6, 84, 240, 243, 254A-F, 287, 289, 292, 294, 295, 316 and 318 of the Constitution of the Federal Republic of Nigeria 1999 and its 3rd and 7th Schedule.

There is currently a legal logjam as to whether the Sheriffs and Civil Process Act, specifically Section 97, applies to a writ issued by the National Industrial Court of Nigeria.

As of today, the National Industrial Court of Nigeria, which was created pursuant to the Constitution of the Federal Republic of Nigeria (Third Alteration Act, 2015), has about 15 divisions in about 15 states of the federation.

The National Industrial Court of Nigeria is a superior court of record by virtue of the Constitution of the Federal Republic of Nigeria (Third Alteration Act, 2010). The Alteration Act amended sections 6, 84, 240, 243, 254A-F, 287, 289, 292, 294, 295, 316 and 318 of the Constitution of the Federal Republic of Nigeria 1999 and its 3rd and 7th Schedule.

The National Industrial Court of Nigeria is a court of coordinate jurisdiction with the Federal High Court, High Court of the Federal Capital Territory and state high courts. The National Industrial Court is not, by its specialised nature, superior to other courts, neither is it above compliance with the Act of National Assembly for the time being in force.

The emphasis of the Court of Appeal in the judgment, which dwelt on the dichotomy of the former and the latter provisions of the Act or the idea of “special and general provision of the Act”, defeats the purpose of the law. The Act was enacted with the commencement date of June 1, 1945. No one would have thought in 1945 that there would be a Federal High Court, the National Industrial Court of Nigeria or the Federal Capital Territory High Court. The provisions of sections 4 and 315 of the Constitution of Federal Republic of Nigeria 1999, obliterate any ambiguity arising from a narrow definition of the law made in the 1945 Laws of the Federation.

The National Industrial Court is a high court to which Part VII applies because the concern of the part is the issuance and service of court processes in any state of the federation or the Federal Capital Territory. The provision of the National Industrial Court (Civil Procedure) Rules is a subsidiary legislation and cannot be substituted for or override an Act of the National Assembly. The compliance with the Rules of the court without the Act of the National Assembly would not save the process and service of the court process that violates the Act of the National Assembly from being invalid, null and void.

Unfortunately, the Court of Appeal, by reason of Section 243(4) of the Constitution is the final court in appeals emanating from decisions of the National Industrial Court. This judgment of the Court of Appeal is bound to apply and be followed by the Justices of the National Industrial Court of Nigeria until it is reviewed.

Awomolo, a Senior Advocate of Nigeria, wrote from Abuja

 

 

 

 

Read original article here

CHARLY BOY

Court Orders Police to Pay Charly Boy N50m Damages

The Federal High Court in Abuja on Monday ordered the Nigeria Police Force to pay to the popular entertainer, Mr Charles Oputa, also known as Charly Boy, the sum of N50m as compensation for violation of his rights during the ‘Resume or Resign’ protest which he convened on August 8, 2018.

Charly Boy had convened the protest to ask President Muhammadu Buhari, who was then on a protracted medical vacation in London, the United Kingdom, to either resume or resign from office.

Alleging that the police violated his rights during the protest, Charly Boy said policemen used tear gas canisters, water cannon and wild police dogs to harass and disperse him and his fellow protesters during the peaceful demonstration at the Unity Fountain in Maitama, Abuja.

He said he collapsed and was rushed to the hospital after the alleged harassment by the police.

Oputa, through his lawyer, Mr  Inibehe Effiong, filed the fundamental human rights enforcement suit against the police in March 2018, urging the court to hold that the treatment meted out to him was unjustifiable, illegal, and unconstitutional.

He urged the court to hold that the treatment by the police constituted a breach of his fundamental human rights to the dignity of the human person, freedom of expression, peaceful assembly and association and contrary to Sections 34, 39 and 40 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

He maintained that it also violated his rights as enshrined under Articles 5, 9, 10 and 11 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Cap. A9, Laws of the Federation of Nigeria, 2004.”

Delivering judgment in the suit on Monday, Justice John Tsoho ordered the Nigeria Police Force, along with the Inspector-General of Police, Mr Ibrahim Idris, and the Commissioner of Police, the Federal Capital Territory Command, to pay the sum of N50m to Oputa and apologise to him in two national newspapers.

The judge held that there was no evidence that miscreants hijacked the premises of the protest as alleged by the police.

He ruled that the applicant was entitled to stage the protest which he ruled was his constitutionally guaranteed right provided it was a peaceful procession.

The judge added even if miscreants were on the scene to hijack the protest, the police should have deployed the appropriate security measures to dislodge such persons and maintain law and order.

The judge ruled, “Relief 4 is granted and the respondents are ordered to publish an apology to the applicant in two national newspapers for violating his fundamental rights.

“The sum of N50m is awarded against the respondents as general and exemplary damages.’’

The court also ordered a perpetual injunction restraining the respondents from violating the fundamental rights to dignity of the human person, freedom of expression and peaceful assembly and association.

NEWSLETTER 8TH-12TH OCTOBER 2018

 

HELLO,
Welcome to another edition LEDAP Nigeria’s Weekly Newsletter which keeps you up to date on the latest Human Rights News and updates in the law, What we are up to and Upcoming Events.
8th-12th October 2018

“Knowledge makes a man unfit to be a slave.”

— Frederick Douglass

NEWS

Defection: Court summons Saraki, Dogara, Akpabio, 52 others

The court, in a suit initiated by an advocacy group—the Legal Defence and Assistance Project (LEDAP) said Saraki and 55 others must appear before it to explain why they would not forfeit their seats in accordance with Section 68 following their defection to other political parties. Read more

Nigeria’s 100-Year-Old Death-Row Inmate Seeking Pardon

Death-row inmate Celestine Egbunuche has been dubbed Nigeria’s “oldest prisoner” amid a campaign calling for his release. He is 100-years-old and has spent 18 years in jail after being found guilty of organising a murder. Read more

Nigerian lawyer, Adeola Oyinlade, wins International Bar Association’s Human Rights Award 2018

A Nigerian human rights lawyer, Mr. Adeola Austin Oyinlade, has been declared winner of the International Bar Association’s Award for Outstanding Contribution by a Legal Practitioner to Human Rights for 2018. This was contained in a press statement by Constitutional Rights Nigeria, CRALI. Read more

Human rights violation getting worse in Nigeria, others – CSOs

Human rights violation in Nigeria and other African countries is not abating, rather perpetrators have become more daring as they violate the rights of citizens, civil society organisations from West and Central African countries have said. Read more

No More Justification for Death Sentence in Nigeria – Group

An advocacy group, Human Rights Law Service (HURILAWS) has said there is no longer any justification for Nigerian judges to continue to pass death sentence on convicts in the country. Read more

Nigeria Not Practising Women Equality-Prof. Ezeilo

Prof. Joy Ezeilo, says Nigeria is not practicing women equality in terms of justice and opportunity as stipulated in the Universal Declaration of Human Rights (UDHR 1948). Ezeilo, the Dean of the Faculty of Law, University of Nigeria, made the disclosure in Enugu on Thursday while delivering the 144th Inaugural Lecture of the University. Read more

Probe of Rights Abuses in Nigeria Ends Soon, Says ICC
The International Criminal Court (ICC) has said its investigation of human rights violation in Nigeria would end soon.
It stated that investigators would in no time submit their findings on the inquiries initiated against the country over alleged gross abuse of citizens’ rights. Read more

Group Seeks Ends to Death Penalty

A Lagos-based human rights group, Legal Defence & Assistance Project (LEDAP), yesterday urged the federal and state governments to put an end to death penalty in the country. In statement signed by its Senior Legal Officer, Pamela Okoroigwe, to commemorate the 16th World Day against the Use of the Death Penalty Read more

Group Decries Incessant Violation of Human Rights in Nigeria

A Pan-African group, PANAF has decried incessant abuse of human rights in the country and Africa at large. The Coordinator, PANAF Project on Consolidating Civil Society Participation in translating African Human Rights Standards to Practice, Prof. Solomon Ebobrah, said undue detention of people despite court orders have been on increase. Read more

NHRC Expresses Concerns Over Lack of Awareness on Freedom of Information Act

The National Human Rights Commission (NHRC) has raised concern over lack of awareness on the Freedom of Information Act (FOIA) among Nigerians. Mr Tony Ojukwu, Executive Secretary of the commission said this on Monday in Abuja, when he received the visiting AU envoy and Special Rapporteur on Freedom of Expression and Access to Information, Mr Lawrence Mute in Abuja. Read more

Nigeria: Rights Commission to Check Violation in 2019 Elections
The National Human Rights Commission (NHRC) is partnering with Human Rights Advancement and Advocacy Centre, an NGO to check human rights violations before, during and after the 2019 general elections. Read more

OPINION

Is Education a Future Investment?
Education was adopted as a basic human right since the 1948 Universal Declaration of Human Right (UDHR). In Nigeria, education policies and operations are overseen by the Ministry of Education. The state of the education in a given country is a determinant of growth Read more

Addressing The Culture Of Impunity In Nigeria

The observation made recently by the Chief Justice of Nigeria, CJN, Justice Walter Onoghen, that it would be impossible to stage a successful anti-corruption war in the country without a corresponding fight against the culture of impunity is alarming. Read more

The Need to Reform the Justice Sector in Nigeria

Stakeholders present at the CLEEN foundation 1st Kaduna State quarterly working group meeting on the Administration of Criminal Justice on 25th of September, 2018 unanimously agreed that the provisions of the Administration of Criminal Justice indeed intends to fasten up criminal proceedings in Nigeria… Read more

Judiciary Still in Search of Solution to Delayed Justice
As shown by the statistics supplied annually by various courts, the best efforts of the judges can hardly reduce the backlog of court cases which continues to impede speedy and effective justice administration in Nigeria and prepare the ground for judicial corruption. Read more

LEDAP@WORK

LEDAP to Nigerian Government: Abolish Death Penalty Now!

Over the years, LEDAP has consistently campaigned for the abolition of the death penalty by providing direct free legal assistance to death row inmates, supporting legislative enactment on moratorium, conducting public poll survey on the use of death penalty and the inhumane living conditions of death row inmates. Read more

LEDAP Sues Saraki, Others for Defecting to PDP

The Legal Defence and Assistance Project (LEDAP), has sued Senate President Bukola Saraki and other lawmakers who defected to the Peoples Democratic Party (PDP). It is praying the Federal High Court in Abuja to declare that they are no longer members of the National Assembly by virtue of their defections from the political parties that sponsored their election. Read more

LEDAP Holds Interactive Session on Twitter to Commemorate World Day Against The Death Penalty

On 10 October 2018, LEDAP held a live, interactive chat on twitter with Collins Okeke, Senior Legal Officer at HURILAWS, in commemoration of the 16th World Day Against The Death Penalty. The theme of this year’s World Day Against the Death Penalty is Dignity For All: Living Conditions of Death Row Inmates. Click here to view the conversation.

 

Invitation to Stakeholders Round Table Dialogue against Torture

The Legal Defence and Assistance Project (LEDAP) in partnership with the United Nations Democracy Fund (UNDEF) and National Committee against Torture (NCOT) invites stakeholders to a round-table dialogue aimed at reducing the incidences of Torture and improving redress for victims of torture and ill treatment which will be taking place in Abuja. For live updates on the Anti-Torture Project follow the project on Twitter, Facebook Instagram & blog page and follow the conversation using #stoptorturein9ja on all social media platforms.

LEDAP, National Judicial Institute, and AfricaLii commence Nigeria Legal Information Institute(NigeriaLii)

Nigeria Legal Information Institute(NigeriaLii) is aimed at bringing legal materials, all laws and case decisions in Nigeria free of charge to the public. The official launch is coming up soon but the NigeriaLii portal currently contains several thousands of case decisions, statutes, rules of court, and other legal materials. Visit the NigeriaLii website here to read the most recent court judgments.

From LEDAP’s Archives

One-Day Strategic Roundtable And Training On The Moratorium Of The Death Penalty In Nigeria

group asaba

Nigeria anti-Death Penalty Group (NDEPELG) held a one-day strategic roundtable on evaluating and revising the punitive aspects of justice administration in Delta State on the 12th of November 2015. LEDAP, a member of the group, has in the past 10years implemented projects on improvement of criminal justice administration in Nigeria through trainings and introduction of good practices in criminal case management. Read more

Workshop For the Magistracy on the Effective Implementation of the Lagos State Administration of Criminal Justice Law, 2011
LEDAP, in conjunction with the Lagos State Ministry of Justice, organized a workshop for the Magistracy on the effective implementation of the Lagos State Administration of Criminal Justice Law, 2011 at the Nigerian Institute of Advanced Legal Studies, University of Lagos, Akoka on Friday 17 June, 2016. Read more

LEDAP Commends President Goodluck Jonathan For Signing The Administration Of Criminal Justice Bill (ACJ Bill) To Law
Goodluck-Jonathan2999

LEDAP today May 27, 2015, laud the President’s landmark act of signing the Administration of Criminal Justice Bill (ACJ Bill) into law. The Law will no doubt significantly tackle the challenges in our Criminal Justice Administration in Nigeria. Read more

PeepIntoTheLaw

Agreements in Nigeria Do Not Require Signatures of Notaries Public or Magistrates or Court Staff to be Legal and Binding

Legality of agreement is not based on stamping or singing of agreement by a court staff magistrate Notary Public. Agreement will be legal where parties who are adults and sane have agreed on a lawful transaction. Even where there is an illiterate in the agreement the person writing the agreement can state so and does not need to go to court for Magistrate or any court staff. Read more

Court strikes out suit against Buhari, others over Judges’ arrest

The Federal High Court in Abuja on Thursday struck out the suit filed against President Muhammadu Buhari and five others, challenging the October 8, 2016, arrest and detention of two Justices of the Supreme Court and four others by the operatives of the Department of State Security (DSS). Read more

Court Sentences Man to 10 Years for Stabbing Brother to Death

Justice Raliat Adebiyi sentenced the convict after finding him guilty of a one count charge of involuntary manslaughter, stabbing his younger brother, Chibuke Abakwe to death. The convict was arraigned in 2013 for murder and he pleaded not guilty to the charge brought against him by the state government. Read more

Court Rules That NBA’s Consent Is Not Necessary To Register A Lawyers’ Association At The CAC
Justice Babs O. Kuewunmi of the Federal High Court sitting in Lagos state has declared that consent of the Nigerian Bar Association is not a constitutional condition precedent to the formation of an association of specialist lawyers in Nigeria. Read more

Renewal of Writ: Michael Kolawole v Pezzani Alberto (1989) 1 NWLR (Pt.98). 2

The Supreme Court held in the famous case of Kolawole v Alberto that a writ can renewed even after its expiration.
Want to read the full case? Click
here to read the full case on the Nigerialii website.

EVENTS

ICJ Annual Jurist Conference 2018

The Annual Jurist Conference powered by International Criminal Justice (ICJ) Kenya is scheduled to hold from 20 – 24 November 2018 in Cape Town, South Africa. The theme of this year is “The State of Judicial Independence in Africa: Threats, Challenges and Opportunities”. You can register here and click here fore more information.

Invitation to 2nd session of the Forum on Human Rights, Democracy and the Rule of Law

The second session of the Forum on Human Rights, Democracy and the Rule of Law will hold at Palais des Nations Room XVII, Geneva, Switzerland from 22 to 23 November 2018 with the theme “Parliaments as promoters of human rights, democracy and the rule of law” Register here. Deadline is 16 November, 2018. Click here for more information.

Tenth Session of Ad Hoc Committee of the Human Rights Council on the Elaboration of Complementary Standards Postponed

The 10th session of the committee has been rescheduled. It will now take place from 8 – 19 April 2019 at the Palais des Nations in Geneva. Register by email registry@ohchr.org Click here for more information

World Peace Initiative: Community Awareness Grant for Young Leaders and Entrepreneurs

The World Peace Initiative Foundation (WPI) has announced its Community Awareness Grant for Young Leaders and Entrepreneurs to support projects that bring positive change in society and promote mindfulness and meditation as tools to improve the quality of life of people. Deadline for submission is 20 October, 2018. Click here for more information

Call for Proposal: Voice’s Empower Beyond Borders! Global Empowerment Grant

Voice is now accepting proposals with “out of the box” project ideas that promote cross-country learning and focus on underrepresented groups within several voice focus region for empowerment grants. These grants are available from €5.000 to € 75.000 for minimum of 12 to maximum of 24 months. Closing date is 9 November, 2018. Click here for more information

Invitation to the International Society for the Reform of Criminal Law Conference 2019
Invitations are open to the International Society for the Reform of Criminal Law 2019 conference themed Bribery & Corruption: Modern Approaches to an Eternal Problem. The conference will be held in Brisbane, Australia from 9-12 July 2019. Click here for more information.

2018 Nigerian Education Innovation Summit (NEDIS IV)
Registration is ongoing for the 2018 Nigerian Education Innovation Summit (NEDIS IV). The two-day conference themed “Accountability & Transparency in the Education Sector: Issues Challenges and Opportunities” is scheduled to hold on Thursday 18th & Friday 19th October 2018 in Lagos, Nigeria. Register here or send an email to nedis@tepcentre.com. Click here for more information


Voice Beyond the Incident: Nigeria Sudden Opportunity Grant

Are there sudden manifestations or situation of injustice against person/persons/community? If your answer is yes, apply for the Sudden Opportunity Grant to voice beyond the incident. Deadline for application is 31 December 2018. Click here to find out more

To get your human rights and law related news and events in the LEDAP Newsletter, or to send us your comments and feedback send us an email at info@ledapnigeria.org

Judicial and Institutional Developments in Nigeria against Atrocity Crimes and the Protection of Victims – Chino Obiagwu

 The context

Since 2012, nearly the entire northeast Nigeria, comprising one-sixth of Nigeria’s 170 million people, has been under severe decimation by Boko Haram terrorists and counter-terrorism by the Nigerian Military. The destructive impart of the armed conflict is huge and tragic:

  • Over 15,000 civilians non-combatants have been killed;
  • Nearly 3m civilians are internally displaced or forced across borders as refugees;
  • More than 6 billion Dollars have been expended in the war without end;
  • Over 75% of children of school age are out of schools as most schools are either destroyed or closed.

The severity of violation of human rights and humanitarian laws are massive.

Boko Haram, a lethal group

Boko Haram is undoubtedly the deadliest terror group in the world. In April 2016, their leader announced its affiliation to ISIS, making it more political and IT driven. They are receiving ISIS assistance that has increased their capacity to roll out propaganda messages, and monitor movements of Nigerian military and civilian populations. They recruit children as young as 8 years and psycho-drill them into suicide bombers, with capacity to monitor their movements when being trained or sent on terror missions. The rate of child soldiers engaged in combat in the northeast for Boko Haram is higher than any other armed group in human history. The sophistication of Boko Haram’s armory, and the precision of their attacks on targets when they strike, suggest considerable military professionalism, which smack of mercenary support.

Cutting out funding to Boko Haram has been a strategy Nigeria has failed to mobilize world’s support.

Violations by the military

At the same time, the Nigerian military have responded with high-handed violence, leading to death of thousands of innocent civilians. The ordinary Nigerians who live outside the northeast could justify military excessive use of force as ‘necessary in the war’ but reports show that both sides of the conflict are committing atrocity crimes, especially war crimes and crimes against humanity.

A recent post on the blog of Coalition for the International Criminal Court (CICC), the parent coalition of Nigerian Coalition for the International Criminal Court (NCICC), clearly depicts the dire situation of massive violations of humanitarian laws and very high rate of impunity. It also shows the near-impossible expectation of ICC’s intervention to investigate and prosecute war crimes committed by both sides.

Despite compelling evidence, no-one has been held accountable for these war crimes [committed since 2013 by Boko Haram and Nigerian military]. This incident [a 2014 killing of 600+ suspected members or supporters of Boko Haram by the Nigerian military and government-backed Civilian Joint Task Force in broad day light in Bama Borno State] sheds light on an under-reported pattern in Nigeria’s fight against Boko Haram. Security forces have committed serious violations of humanitarian law throughout the conflict. These crimes have not been investigated and their perpetrators remain unpunished. War crimes and crimes against humanity committed by Nigeria – a party to the Rome Statute – fall within the International Criminal Court’s (ICC’s) jurisdiction. The ICC Prosecutor has opened a preliminary examination into atrocities committed by both sides, but is rightly waiting to see whether Nigeria will begin domestic investigations. In this context, could the ICC’s involvement galvanize Nigerian politicians to hold their own accountable?

The evidence is mixed. A Rome Statute domestication bill intended to punish perpetrators of war crimes and crimes against humanity continues to be debated. During his first week in office, Nigeria’s President Buhari pledged to investigate the military’s crimes. However, in the 18 months that have elapsed since that promise was made, the government has provided no information on how or when these investigations will be conducted. In the absence of genuine national proceedings, the ICC Prosecutor must decide whether to open her own investigations. [But she is in a dilemma]. At a time when the African Union has backed a “strategy for collective withdrawal” from the Rome Statute, the Prosecutor will be loath to open investigations into one of the ICC’s most reliable supporters.[1] Yet anyone hoping that the Prosecutor will be spared this decision must contend with three obstacles to domestic proceedings: the extent of the crimes will stretch Nigeria’s criminal justice system; investigations that are likely to expose how the military could have, but failed to stop Boko Haram; and investigations that may lead prosecutors to some of the most powerful individuals in the country. These practical and political roadblocks should put the Prosecutor on notice: the interests of justice and the interests of the ICC are likely to diverge

The Extent of the Crimes

The ICC’s preliminary examinations are based on evidence of mass arrests, torture, and summary executions committed systematically and repeatedly by security forces, resulting in thousands of deaths and disappearances. A UN report found evidence that detainees in military custody were denied food and water and, as a result, died on a daily basis. Research by Amnesty International reported that more than 7,000 men and boys died in military detention between 2011 and 2015 due to this abhorrent treatment.

The ICC Prosecutor will only open investigations if Nigeria is unwilling or unable to do so domestically. The scale of the crimes alone will test the ability of Nigeria’s criminal justice system, which already struggles to ensure due process. According to the National Human Rights Commission, 35,889 people in prison are awaiting trial, or 70% of the prison population. These figures do not include thousands of suspected Boko Haram fighters, who are detained by the military. Nigeria’s international partners have pledged their assistance to help investigate and prosecute these suspects, but military violations do not appear to be on the agenda. Nigeria would need to devote significant resources to investigating military crimes committed over several years, across three states, when witnesses are likely to be among 2.3 million displaced people. The chances of the justice system being able to handle such investigations in the near- to medium-term are slim.

The Military’s Failures

The second problem is that investigations will force a re-assessment of the military’s crimes. The horror inspired by Boko Haram’s abuses has led some to rationalize military violations as the ‘excesses’ of over-zealous soldiers, doing ‘whatever it takes’ to defeat an existential threat. But the military’s violations are not an unfortunate and unintended consequence of its determination to win the war. Such euphemisms are deeply misleading. They call to mind soldiers, in the heat of battle, using disproportionate force in a firefight. In fact, the crimes being considered by the ICC occurred outside of battle, when there was no threat to person or property

Current framework for judicial action

The current judicial framework in Nigeria to address atrocity crimes and redress to victims can be discussed under the following headings: the current laws, institutional structure, investigation and prosecution capacity, courts and capacity to adjudicate, and political challenges

a. Current Laws

 Outdated penal laws without atrocity crimes

Nigeria is yet to domesticate the Rome Statute on the International Criminal Court[2]. Being a dualist state, international crimes are not part of its domestic penal laws. The current applicable laws are the Criminal Code (enacted in 1945 and applicable in southern states) and the Penal Code (enacted in 1924 and applicable in northern states including the northeastern states). These Codes provide for the offences of murder punishable by death as well as treason or waging war against Nigerian State, also punishable by death. No crime of war crimes, genocide[3] or crime against humanity is provided. Many of the cases of killings by suspected Boko Haram members are charged under the Penal Code, or sometimes the Criminal Code depending on the location of the assault.

New anti-terrorism law did not go far with atrocity crimes

In 2011, Nigeria enacted the Prevention of Terrorism Act, (amended in 2013) which punishes the crime of terrorism as well as the offences of supporting, financing, encouraging and supplying materials to terrorists.  The Act is strong in criminalizing support to Boko Haram, but it is weak as a tool to attack terrorism because it has very broad definitions of elements of the offences it created. Thus, apart from the conviction and sentence to life imprisonment of Kabiru Sokoto and his co-accused, who masterminded the 2013 Christmas day bombing near Abuja, no other notable terrorist has been successfully prosecuted and convicted under PTA. Activists have criticized[4] the Act for containing provisions that contradict the provisions of the Nigerian Constitution. In particular, the Act suspends the rights of suspects to access to their lawyers, relations and independent medical treatment. In 2014, NCICC commenced a suit at the Federal High Court to strike down provisions of the Act that offend the Constitutional provisions. The case is pending at the Court of Appeal (NCICC v Attorney General of the Federation.).

New SGBV crimes created 

Another legislation that regulates atrocity crimes and redress to victims is the Violence against Persons Prohibition Act, which punishes violence targeted at women and children, or group of vulnerable people. Assaults or mistreatment of IDPs fall within these provisions.

Challenging procedures of the courts

The procedures to enforce these laws had, before 2015, been the Criminal Procedure Code (enacted in 1924) and the Criminal Procedure Act (enacted in 1945 for enforcing the Criminal Code). These laws are too obsolete to meet the challenges of 21st century terrorism crimes.

Happily in 2015, the Administration of Criminal Justice Act was passed, aimed at improving the investigation and prosecution of crimes in the country. Laudable provisions are contained in the new Act to reduce delays and empower the investigators, prosecutors, defence and courts. One of such is section 232, which provides that the court must protect witnesses in terrorism and other violent or sex crimes, and where necessary, evidence of witnesses may be taken in chambers, shielded in screen, voice-disguised or by video link. Also identities of witnesses and victims should be protected in terrorism trials. So also the provision in the Act that victims can be compensated in the criminal proceedings and that criminal trial should not be paused or stayed because a party intends to appeal against any decision taken by the court within the proceedings, called interlocutory appeals. This has been the main cause of delay in criminal trials in the country.

Not yet impactful reforms

Despite these innovations, there has been little progress in investigating and prosecuting atrocity crimes. The situation of high violence, low prosecution and gross impunity remains. E.g.

  • In 2015, State Security Services reported that over five thousand suspected members of Boko Haram are in their custody. Only a handful have been charged and prosecuted since then. As many more are daily arrested in the renewed onslaught on the terrorists, the detention population of the terror suspect must have doubled by March 2017[5].
  • On March 14 2014, Boko Haram fighters attacked Giwa military barracks in Maiduguri and released about 650 men detained there on suspicion of being members of Boko Haram. In retaliation, the military was alleged to have rounded up and extra-judicially killed the re-arrested escapees in several hundreds. Their mass graves were widely reported by CSOs. To date, no soldier or commander has been held to account for this crime, report of investigation of the allegations made public.
  • Amnesty International reported in 2017[6] that hundreds of men, women and children are holed up in dire custodial conditions in many detention place including in 7 Battalion, a new military facility purpose-built to deal with Boko Haram menace. Similar military custodial facilities exist across the country with little or no civil oversight.
  • We can safely say that over ten thousand suspects are in custody waiting to be tried, and only a few are put to trial. Such high state of lack of capacity and commitment to prosecute suspects fuels dissent, and contributes in radicalization of those who otherwise were innocent.

There is no stronger basis for ICC’s intervention than the apparent inability or unwillingness of Nigeria’s national judicial system to deal with such massive atrocity crimes committed on both sides of the armed conflict.

b. Institutional structure

Police and the military

The institutions for investigating atrocity crimes are the Police set up under the Police Act 1945; the State Security Services and the Nigerian Intelligence Agency set up under the Nigerian Security Agencies Act 1992, (formerly Nigerian Security Organization Act 1978).

The military set up under the Armed Forces Act has responsibility only to investigate military offences committed by persons under service law. They are not authorized to deal with investigation and prosecution of crimes or engage in civil policing. They are not even authorized to keep custody of crime suspects, including suspected war criminals and terrorists. At the moment, the military’s involvement in policing has resulted in distorting its role, and negating its standard operational guide for engaging with non-combatants in armed conflict.

The Nigerian government has also set up special anti-terrorism forces, including the Joint Task Force, and anti-terrorism unit of the military and police, which are tasked with tracking terrorists and their supporters/financials.

Special counter-terrorism initiatives

In order to control funding of terrorism, the government has enacted the Money Laundering (Prohibition) Act 2011, as well as the Nigerian Financial Intelligence Unit, which are aimed at tracking movement of illicit funds in the formal sector, combating money laundering and financing terrorism. The Prevention of Terrorism Act punishes concealment of suspected terror-fund by banks and financial institutions. However, without international cooperation, policing terror funding within Nigeria’s weak bank tracking system remains futile.

Redress to victims – promises not kept

With respect to redress to victims, the government set up in 2014 the Presidential Task Force on the Northeast[7] and the Foundation for the Support of Victims of Terrorism[8]. The Trust Fund has attracted over 15 billion in pledges from the private sector as at December 2016, and nearly half of those pledges have been paid to the Fund. In reality, most victims, especially the IDPs are not resettled, even to return to communities already cleared of terrorists.

NCICC is currently in court in a class action on behalf of over three thousands IDPs for judicial orders forcing the Trust Fund to rehabilitate them and account for use of collected funds.

 Safe School Initiative (SSI)

There is also the Safe School Initiative[9], aimed at returning children to schools and taking those in most endangered areas to other states schools. Again, accountability for this laudable programme has remained unreported. CSOs need to play active role to see that these initiatives achieve their purposes.

Other institutional structure that have supported victims of terrorism in Nigeria, and addressed the effect of terrorism include:

  • National Emergency Management Agency, which has done greatly in managing nearly daily incidents of bombings, displacements, destructions of communities, etc
  • National Refugee Commission, that has mandate to handle displaced persons and refugees, and has contributed in setting the policy for state and federal government
  • National Human Rights Commission, whose mandate is to monitor and protect human rights of citizens, including victims of terrorism and of other forms of human rights violations.
  • Other executive initiatives exists, such as the offices of the special assistants or advisers to the President of humanitarian services, on IDPs, on the northeast; the Office of the National Security Adviser, among others.

c. Investigation and prosecution capacity

The police, State Security Service, and the special anti terrorism agencies have responsibility to investigate crimes committed in the country including terrorism crimes. The military have responsibility to investigate its officers and soldiers who are alleged to have committed crimes in their work. The Attorney General of the Federation and Attorney-General of the State have the ultimate responsibility for prosecution of offences in the country (federal or state offences respectively). Before 2016, the prosecution of terrorism offences was carried out solely by legal officers in the office of the AG of the Federation, and few times, external lawyers were briefed. In 2016, the AG of the Federation set up the National Prosecutions Team, made up of senior lawyers from the private bar as well as lawyers in the ministry of justice. The goal is to increase the number of cases prosecuted in order to clear the backlog. There is no doubt that with the huge case backlog in the courts, it will take a medium and long terms to see the impact of the team.

Prosecution of terrorism offences have not been progressing. Worst still, the investigation and prosecution of crimes allegedly committed by military are not known or reported. The impunity rates are very high, underscoring the need for the ICC to re-evaluate its reluctance to open investigations in to atrocity crimes in the country.

d. Courts and capacity to adjudicate,

The Nigerian courts are overworked, and suffer from huge case docket. An average day in a high court will involve up to 20 cases for a judge, and the judge takes notes of proceedings in long hand. This slows down the proceedings. And with nearly an hour spent for part-hearing of each of the listed cases, it is not practicable to attend to half of the cases on the court’s list. The result is continuously increasing backlog of cases. Unless drastic measure is taken, there is simple no feasible way the courts can take on the several hundreds of persons awaiting trial for terrorism charges, as well as the over 35 thousand awaiting trial in the prisons for ordinary crimes. The capacity of the courts are overstretched, and though the government have introduced the Administration of Criminal Justice Act 2015 and a new National Judicial Policy, all geared towards reducing delays in criminal proceedings, it will take considerable investments in infrastructure of the courts and the recruitment of new personnel to see significant breakthrough in reducing the rate of impunity for atrocity crimes. There is also need for government to increase its political will to investigate and prosecute crimes committed by the military, police and other agencies as well as by the government-backed Civilian JTF.

 e.  Political challenges,

 Poor political commitment to end impunity for the military

Many observers may seem to agree that there is slow political will for government to investigate crimes committed by its own forces in the northeast. It is argued that these violations are necessary fall out of the war, but Nigeria is state party to all relevant treaties regulating armed conflict, even in context of non-conventional armed conflict as is taking place in the country. There is responsibility to see that members of the armed forces who are alleged to commit crimes are investigated and prosecuted to the highest level of command.

Army Human Rights Office

The military set up in 2016 a Human Rights Complaint Office, aimed at improving civilian redress system. The progress on this laudable initiative has not yet been reported, but it shows the military’s internal willingness to engage with the civil society and the community to improve on its rules and practices of engagement. The CSOs should build on such initiative as window for larger engagement in respecting human rights and humanitarian laws.

Role of the ICC in Nigeria

The ICC prosecutor has the responsibility to step in where the Nigerian government is unwilling and unable to prosecute these crimes. Whether the ICC can risk opening another situation in Africa in face of the blackmail by AU that it is targeting African is left to be seen, but the civil society must continue to put pressure on Nigeria to strengthen its national judicial system for investigation and prosecution and for the ICC to undertake the necessary prosecution where the national system fails. The ultimate goal is the protection of, and justice for the victims. Without adequate redress, Nigeria’s numerous victims continue to suffer double-jeopardy, which Nigeria government and the ICC must address in coming months.

 

6th March 2018

Chino Obiagwu

Chair, Nigerian Coalition for the International Criminal Court (NCICC).

[1] http://www.premiumtimesng.com/news/top-news/214461-nigeria-pledges-remain-icc.html.

[2] The bill is pending at the National Assembly. The same bill has been passed by previous assembly and but then president, Olusegun Obasanjo, refused to sign it in 2007. There appear reluctance in the political society to tackle atrocity crimes with the efficiency and commitment it deserved. After all, only very poor people suffer most from the terror carnage.

[3] Nigeria has domesticated the Genocide Convention which prohibits genocide, but not being a penal statute, is not a common basis for criminal charges among prosecutors.

[4] See C.J. Dakas SAN & Chino Obiagwu in ‘A critique of the Prevention of Terrorism Act 2011 as amended’, 2013 NCICC publication.

[5] http://dailypost.ng/2017/02/02/boko-haram-3332-suspects-currently-custody/

[6] https://www.amnesty.org/en/countries/africa/nigeria/report-nigeria/

[7] https://www.today.ng/news/nigeria/186237/establishes-inter-ministerial-task-force-north-east

[8] http://victimssupportfundng.org/

[9] http://theirworld.org/news/safe-schools-initiative-launched-after-kidnappings-in-nigeria