Month: January 2013

Jurisprudential Conundrum

/ Scribe of the Tword / 4 Comments
Economic and Financial Crimes Commission

Economic and Financial Crimes Commission (Photo credit: Wikipedia)

Jurisprudence is probably the most important subject of study for would-be lawyers and anyone trying to understand how legal systems work. Jurisprudence provides the “back-story”, if you will, to why we have the laws and legal principles we have today. Theories of state and government have led to laws guaranteeing the separation of powers of government, as well as representation in government by virtue of a people’s assembly. Similarly, the evolution of thought over time on what constitutes justice has also impacted on how different societies punish crime differently. This is why, for instance, amputation as a punishment for stealing and execution for murder are acceptable in some countries and not in others.

Our legal system, including our criminal jurisprudence, like most countries in the Commonwealth, was handed down to us by the British while Nigeria was a colony. This system of law is generally referred to as “Common Law” and countries that practice it are referred to as Common Law jurisdictions. Now, for most CLJs, crimes are punished to achieve the following purposes:

  • Retribution – that punishment must be the convict’s “just desserts” for committing a crime. In other words, the punishment meted out to the convict should be commensurate with the offence committed.
  • Deterrence – that punishment should discourage the convict from repeating the offence, and also serve as a disincentive to the community at large
  • Rehabilitation – that a component of punishment should be attempting to give the convict a different philosophy to life, such that he does not even want to commit the offence again.
  • Incapacitation – that, in appropriate cases, offenders who are too dangerous be removed from society, ostensibly to the benefit of the society.

According to the Judicial Commission of New South Wales (Australia is a member of the Commonwealth), the following are the reasons for which a court may impose a sentence on an offender:

  1. to ensure that the offender is adequately punished for the offence,
  2. to prevent crime by deterring the offender and other persons from committing similar offences,
  3. to protect the community from the offender,
  4. to promote the rehabilitation of the offender,
  5. to make the offender accountable for his or her actions,
  6. to denounce the conduct of the offender,
  7. to recognise the harm done to the victim of the crime and to the community.

(See here and here for enlightening discussions on justifications for punishment).

In its Strategic Plan for 2008-2011, the UK’s Office for Criminal Justice reform said

“The fundamental test of any justice system is its effectiveness in bringing offences to justice. This means that the prosecution is well-managed, the guilty convicted and the innocent freed in a way that meets the needs of victims and treats all sections of the community fairly…It means criminal justice helping to deter crime because offenders know that be caught and punished and ensuring that, when caught, they do not reoffend…The public needs confidence that offenders are being punished and that crime does not pay.”

This background is necessary for a fuller understanding of what happened yesterday, in the prosecution of one Mr. John Yakubu Yusufu (formerly (??) of the Police Pensions Office), for his role in the theft of N39bn of Police Pension Funds. Yusufu, in court before Justice Abubakar Talba yesterday, admitted his role in the theft of roughly N23bn of the stolen funds, in connivance with others. He was charged under section 308 of the Penal Code (of 1959) and was sentenced under section 309 of the same law. Consequent to his admission of guilt on 3 counts and allocutus on his behalf by his lawyer, Justice Talba sentenced Yusufu to 2 years imprisonment on each count (to run concurrently, ie cumulatively, only two years) with an option of a N250,000 fine on each count, forfeiture of 13 houses and the sum of N325m. Public indignation at the proceedings has been torrid.

Section 308 of the Penal Code says “Whoever dishonestly misappropriates or converts to his own use any moveable property, commits criminal misappropriation.” Section 309 says “Whoever commits criminal misappropriation shall be punished with imprisonment for a term which may extend to two years or with a fine or both.” Thus, while a 2-year sentence on each count is what the law prescribes, the use of the judge’s discretion to rule that the sentences run concurrently and then give Yusufu the option of a fine is probably what has confounded most observers.

If we look again at the purposes or justification for sentencing, it would be extremely hard to say that Yusufu was adequately punished or that his punishment will serve as a deterrent to other public servants. Rotimi Jacobs (SAN), the EFCC’s counsel is reported to have complained to Justice Abubakar Talba that the sentence makes a mockery of the EFCC and the Federal Government’s fight against corruption.

I am not sure the EFCC is without blame, however. A cursory glance through the same Penal Code also contains Criminal Breach of Trust offences. Section 311 says “Whoever, being in any manner entrusted with property or with any dominion over property, dishonestly misappropriates or converts that property to his own use or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits criminal breach of trust.” Section 312 says “Whoever commits criminal breach of trust shall be punished with imprisonment for a term which may extend to seven years or with fine or with both.”

Of even greater relevance is section 315, which says “Whoever, being in any manner entrusted with property or with any dominion over property in his capacity as a public servant or in the way of his business as a banker, factor, broker, legal practitioner or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for a term which may extend to fourteen years and shall also be liable to a fine.”

Unless my understanding is wrong and a pension fund accountant is not one “entrusted with” the funds, I am at a loss as to why conviction was not sought additionally under these sections.

Perhaps a final mention should be given to Yusufu’s allocutus (his plea for leniency after his admission of guit). I am reproducing it, as reported by PMNews, in full –

Yusufu’s lawyer, Mr. Maiyaki Theodore Bala, in his submission after his client pleaded guilty, told the court that the conduct of his client had demonstrated remorse to the court and to Nigeria as a nation for breaching its laws.

 

According to him, ”By pleading guilty, the convict has shown respect to this court and have saved precious time of the court. The court will also find that he is a first time offender without any previous record of conviction, furthermore, he is the head of a family of four, a wife and 3 children, two of who are university students while one is a primary school pupil. These people depend on him for their survival and well being, including the payment of school fees. It is also pertinent to note that he has a chronic heart condition which has aggravated to a serious case of high blood pressure, a condition that requires frequent medical attention. His aged parents are still alive and due to old age, have attendant medical complications which require regular medical attention and both depend on him to deal with these.”

 

The lawyer also told the court that Mr. Yusufu had grown to become a community leader with a number of students depending on him for scholarships, these Nigerian children, according to him, will loose (sic) the opportunity if justice is not tempered by mercy.

 

Continuing in his plea for leniency for his client, Maiyaki told the court that going by the application for complete forfeiture of the assets and properties confiscated from his client, that the EFCC had taken everything from his client and he is left with nothing. He urged the court to exercise the discretionary powers granted it under section 309 of the Penal Code in favour of the convict and give him an option of fine so as to serve as incentive to the other accused persons to take the courage of coming forward to admit their guilt where one exists.

Now, while the primary purpose of allocution is to mitigate the sentence for the offence to which one has just pleaded guilty, is its purpose simply to get accused persons the most lenient sentence possible? Surely not. A child kills his parents but begs for mercy because he is now an orphan? Given the tragic history of pensions and pensioners in Nigeria, the unending tales of pensioners fainting (dying, even) on queues to collect their pensions, the anti-corruption rhetoric of the current federal administration and the huge injustice in N35bn of public funds simply vanishing, should any allocution (even if it were from the lips of the late Rotimi Williams himself) absolve any Nigerian pension thief of jail time?

The fight against corruption needs to grow some mean teeth. The prosecution must push for the most severe punishment available and the brotherhood of judges must censure their colleagues who pervert the course of justice. Our criminal laws, especially as they relate to graft in public office, need periodic reviewing. If, truly, the most severe punishment available for stealing public money is a 2-year jail term commutable to a fine of N250,000, do not be surprised if the queue to confess suddenly elongates, with these criminals smiling all the way back to their banks.

Trademarks 101

/ Scribe of the Tword / 4 Comments

WHAT IS A TRADEMARK?

A trademark is a logo or a combination of words (or even words plus logo) that distinguishes the goods and services of one person from those of another. Trademarks, over time, also assure consumers of the origin and quality in the goods being purchased and can therefore be very valuable to a business or a proprietor. A registered trademark confers on its owner the right to exclusive use.

 

IS THERE A SYSTEM FOR REGISTERING TRADEMARKS?

Trademarks are registered in respect of distinct classes of goods and services, according to what is known as the Nice Classification. The class in which a trademark is registered depends on the goods or service in connection with which the proprietor intends to use it. As a result, trademarks can be registered in respect of more than one class of goods and/or services. For instance, a business that produces clothes, perfumes and printed material would need to register its trademark in three separate classes.

 

IS EVERY TRADEMARK REGISTRABLE?

No. Marks that are offensive or contrary to public policy are likely to be rejected. In addition, marks that are descriptive or generic are also not registrable. An example of a descriptive or generic trademark is “PURE WATER” in respect of bottled water. Because the trademark describes the product, it cannot be said to be distinctive and distinctiveness is the underlying principle here. Permitting “PURE WATER” to be registered as a trademark in this class would also be unfair to other manufacturers of bottled water, as they would not be able to use the words on their labelling.

 

WHAT IS THE PROCESS OF REGISTRATION?

The trademark to be registered is submitted to the Trademarks Registry (‘the registry’), with application forms and an application fee. The registry acknowledges the application with a ‘Notice of Acknowledgement’ and assigns the application a (temporary) application number. The registry then conducts a search on its register to ensure that the application is not confusingly similar to an existing trademark. If it is determined that the application is too similar or there happen to be other grounds for rejecting the application, a ‘Notice of Refusal’ is issued, stating the registry’s reasons. Otherwise, a ‘Notice of Acceptance’ is issued. If the application is refused and the applicant  is dissatisfied with the grounds of refusal, he can write a letter to the Registrar of Trademarks, requesting a review of the registry’s decision.

 

Once the application is accepted, the next stage is publication in the trademarks journal. The purpose of the journal is to give existing owners of registered trademarks the opportunity to oppose any application they feel is confusingly similar to their mark. They must do this within 2 months from the date the journal is published. If the application is opposed, opposition proceedings in the form of a mini trial are held to determine whether or not the application should be registered. If the application is not opposed within the stipulated time-frame, the owner can apply (with forms and application fee) for the certificate of registration to be issued.

 

HOW LONG DOES REGISTRATION LAST?

Registration is valid, in the first instance, for 7 years. Upon renewal, it is thereafter valid for periods of 14 years in perpetuity (i.e. for as long as the owner wishes).

 

 

WHAT CAN A TRADEMARK OWNER DO IF HE SUSPECTS HIS MARK IS BEING INFRINGED?

Trademark infringement is a very serious matter. The whole point of intellectual property protection is to ensure that owners enjoy the fruit of their mental exertions. Trademark infringement is effectively making use of (or stealing, actually) the goodwill the public attaches to a trademark in the delivery of the infringer’s goods or services. Examples of infringement abound; Sunny Electronics, for instance, or MackBerry phones.

 

If an owner suspects another’s infringement, it’s probably best to get in touch with a lawyer as soon as possible. The lawyer will assist the owner with investigating the infringement, gathering evidence of the infringing goods on the market and establishing their source. Then, depending on the nature, gravity or the scale of the infringement, the lawyer will decide if the best strategy would be a mere cease and desist letter or whether instituting legal action, obtaining court orders or conducting a seizure raid with the help of the police is the best line of action.

 

If a court action is successful, one of the orders the court can make is that the infringer hand over all the profits from the infringing goods to the rightful owner of the trademark, in addition to requiring him to destroy any remaining stocks.

 

IS EVERY TRADEMARK WORTH REGISTERING?

Technically, this isn’t a yes or no question – it depends on one’s long-term strategy for the company or business. If your product is going to be a “one-off” or isn’t in your primary line of work, then you would have to weigh registration costs against (realistic) projected earnings. If, on the other hand, the product or service to be trademarked is the thrust of the business, or you’re running a multifaceted business but want to ensure that consumers realise that the various products are from the same origin, then it is well worth registering one’s trademarks.

 

Perhaps what should also be borne in mind is that if an owner’s trademark isn’t registered, the owner can only sue the “infringer” for ‘passing off’ and not for infringement, and the remedies for infringement exceed those for passing off.

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(IL)LITERACY IN LEADERSHIP

/ Scribe of the Tword / 1 Comment

 

The Nigerian quest for leadership continues and, unfortunately for progressives, zoning and entitlement to others standing down so that a particular region can enjoy its turn to produce the next president is the current preoccupation of the ruling elite and the chasing pack. The pro-zoning argument is mostly that it corrects marginalisation and encourages “a feeling of belonging”. As there is a gaping lack of evidence that any region has benefitted from being the sitting president’s home-region, one must question what exactly those who protest it are being marginalised from?

 

The North (I use these geo-political groupings only very nominally) has produced the majority of the country’s heads of government post-Independence. The consensus is however that it is largely the region lacking the most in infrastructure, education and several other key development indices. The South-West had its own turn but no one can point to the exclusive benefit this conferred on the region during those eight years. The incumbent is from the South-South and it would also be hard to point to anything that has accrued to that region specifically. What then can the accusation of marginalisation be in reference to, if the regions do not enjoy special benefits for producing the president? This zoning argument also scales down to politics at the state level, where the governorship “must” be rotated between the different regions that comprise the states. Marginalisation apparently also exists at the state and local government levels too. The majority of the country must therefore be suffering from this malaise of marginalisation at every point in time.

 

My guess is that it is not the benefits that would accrue to the region that these marginalisation politicians refer to. It is more than likely to be the benefits that accrue to the members of the office-holder’s circle of trust and their hangers-on – the ability to influence appointments (and accumulate political capital), the potential to increase their own personal wealth and [in the tiniest of whispers] the opportunity to assist with how looted funds, if any, will be laundered.. If the President or Governor emerges from your region, you can expect a handsome personal reward depending on how close a friend you are or how prominent a role you played in his election. The cry of marginalisation cannot have very much to do with the progress of the officer-producing region.

 

It is extremely idealistic but I am hopeful that one day, marginalisation will cease to be the motivation or justification for a candidate’s eligibility, and the most important factor in our choices at the ballot will be the quality of the candidate’s learning and the strength of his character. I have often wondered whether the prosperity of the world’s richest nations has anything to do with how well-educated their leaders are. I finally did some digging this week and the results are in the table that follows. The table tries as much as is possible to either go as far back into time as 1980 or, where the information was not readily available, to list the last four heads of government. The table omits schools outside the US and the UK, as most of us (Nigerian readers) are unlikely to be familiar with their pedigree.

 

Name of Head of Government

Profession/Education

  
UNITED KINGDOM  

David Cameron

 Oxford University, 1st Class in Philosophy Politics & Economics  

Gordon Brown

 1st class History

University of Edinburgh, PhD History

  

Tony Blair

 Oxford, 2nd Class BA Arts, later became a barrister  

John Major

 O-Levels, Correspondence course in banking  

Margaret Thatcher

 Oxford, 2nd Class Honours BSc Chemistry, later became a barrister

 

  
UNITED STATES OF AMERICA  

Barack Obama

Columbia University (Political Science, International Relations); Harvard Law School

  

George W. Bush

Yale University (History), Harvard Business School (MBA)

  

Bill Clinton

Georgetown University (BSc Foreign Service); Oxford (Philosophy, Politics & Economics); Yale Law School

  

George H. W. Bush

Yale University, BA Economics

  

Ronald Reagan

Eureka College, BA Economics

  
GERMANY  

Angela Merkel

PhD, Physical Chemistry

  

Gerhardt Schroeder

Law

  

Helmut Kohl

History & Political Science

  

Helmut Schmidt

Army conscript

  
FRANCE  

Francois Hollande

Political Studies

  

Nicolas Sarkozy

Law

  

Jacques Chiraq

Political Studies

  

Francois Mitterand

Political Science

  
JAPAN  
Shinzo Abe Political Science, Public policy  
Yoshihiko Noda Political Sciences & Economics  
Naoto Kan Patent Attorney  
Yukio Hatoyama PhD, Industrial Engineering  
Junichiro Koizumi Economics  
SWEDEN  
Fredrik Reinfeldt Business & Economics  
Göran Persson Social & Political Sciences (didn’t graduate)  
Ingvar Carlsson

 

 Diploma in Business Economics, BSc in political science  
AUSTRALIA  
Julia Gillard BA, Law
Kevin Rudd BA Arts, Asian Studies
John Howard BA, Law
Paul Keating (No higher education)
Bob Hawke BA Arts, Oxford
SINGAPORE
Tony Tan BSc Physics (1st Class)

MSc, MIT

PhD Applied Mathematics

  
S R Nathan Social Studies  
Ong Teng Cheong Architecture  
Wee Kim Wee Journalist (Political Features)  

 

There is a preponderance of degrees in political science, law, business, economics and arts (with Singapore throwing its own unique party). Leaders educated in the science of statehood, jurisprudence, commerce and humanities. Of course, this is incomplete, almost half-arsed, data and not much can be gleaned from it. For instance, we do not know from this table if the citizens of these countries prefer leaders with this sort of education or whether it is each country’s political infrastructure that ensures that the cream rises to the top. The table does not examine the presidents’ cabinets and the quality of the team they are surrounded with. We cannot tell if the countries are rich because their leaders are well-educated or whether the leaders are well-educated because the countries are rich.

Regardless, there does appear to be a correlation between the level to which a country’s leaders over time have been educated and how prosperous the country is. This is more so when Sub-Saharan Africa (in which a huge number of the world’s poorest countries are located) is examined in a similar vein and we see several countries that have been pillaged [mostly] by soldiers in the period under review. The soldiers that have usurped civilian rule have also mostly not been of the senior ilk – coups are rarely planned by generals. Many of these countries have also endured long stretches during with the same head of government. Imagine a first-year medical student performing heart surgeries, and answerable to no one for the inevitable cock-ups.

Going forward, while I realise that the “masses” probably do not care much for what university the president went to nor, indeed, if he even went at all, the nature of candidates’ education must be taken into greater consideration. It should come as no surprise, for instance, when people who know nothing of the theories of state get onto our television screens and spout heresies. How can we expect such people to be aware of their own responsibilities in the social contract? When merit is perpetually sacrificed on the altar of marginalisation, how can we expect progress or growth? Perhaps our change advocacy needs to make much more of an issue of this.

 

 

Before We Abolish the Senate

/ Scribe of the Tword / 1 Comment

In recent discussions on the need to cut down the size of government and its expenses, many have questioned whether it is necessary to have two federal houses of parliament. After all, goes the argument, they are virtually never in disagreement with each other. The ruling party controls both chambers and thus, any notion of one operating as a checks and balances mechanism against the other is mere fiction – one set of lawmakers is clearly redundant.

It is tempting, in the red mist of revolutionary fervour, to align oneself with this position and demand, on the singular basis of unnecessary expenditure, that one of the legislative chambers be abolished.

However, we know from basic economics that apart from cash cost, there is also an opportunity cost to be considered when allocating scarce resources.

To ascertain the opportunity cost of moving to a unicameral legislative system, one must first understand the thinking behind designing legislatures to consist of two chambers. My research suggests that there are at least two cogent reasons for it – philosophy and representation.

On the underlying philosophy, NYU law professor, Jeremy Waldron, in a very informative paperwhich I urge every “change agent” to read, begins his discussion with an interesting anecdote, which I have reproduced in full: ‘Herodotus and Tacitus report that the ancient Goths of Germany, when they had to decide anything important – like going to war, or moving their settlements or entering into a treaty – they would debate it not once but twice. The first time, they would debate the issue drunk, the second time they would debate the issue sober. Drunk – to give a bit of vigour and spirit to their deliberations; sober, to add a dimension of prudence and discretion.’

These ancients believed in the wisdom of two different approaches to considering an issue, almost in the style of two-heads-are-better-than-one, with the expected consensus hopefully being somewhere in the middle of the two ‘ideological’ extremes. The idea was also to guard against the likely tyranny of a legislature with no checks.

There is also a less politically correct thesis, which in spite of its inherent classism still rings true.

The fact is if true democracy is really practised, it would result in the supremacy of the will of the masses/the mob (as the majority) over that of the minority elite. Even for the rigid idealists, it is clear that the affairs and policies of state cannot be left exclusively to the will of the majority.

The history of the US Congress provides an excellent example of how bicameralism serves to ease fears of lopsided representation in the legislature. At the constitutional convention, delegates from smaller states were fearful of having no voice in government and advocated representation on an equal basis regardless of the size of the state. Larger states insisted on representation based on population and the convention seemed headed towards gridlock. The bicameral system solved both problems. Each state got an equal number of senators, with the number of lower house representatives being determined by population.

To recap, therefore, bicameralism guarantees against the subjugation of smaller constituent members (population wise) and should also serve as a wiser, calmer counterfoil to the effervescence of the will of the people.

If, in the quest to reform the legislature, we were to opt for a unicameral assembly, what would we be gaining apart from the expected savings in salaries and emoluments?

Currently, we would not be losing much. The president’s party, the PDP, has the majority of the seats in both houses and is therefore the party from which the speaker and the senate president are drawn. Apart from the dispute, a few years ago, over which house was the ‘lower’ house, the two houses have taken identical positions and reached identical conclusions on the issues and laws they have considered.

The senate can hardly be said to have been a calming, more enlightened voice on the house of representatives. The house of representatives itself can hardly be said to be the voice of the masses, there being very little difference in the ilk of members of both houses and the distance between the electorate and those who have represented them so far in this dispensation.

Taken with the relatively insignificant number of laws that would facilitate development and the huge amounts spent on legislators’ remuneration (which embarrasses them to anger each time they’re reminded),  bicameralism does not appear to have demonstrated any of its touted benefits in Nigeria, since the current democratic dispensation began in 1999.

But democracy and reform should be about building enduring institutions. We should be working towards the answer we want, rather than away from what we find undesirable. The distinction between the two is very fine but it exists nonetheless. If each manoeuvre we make seeks to neutralise what we perceive as bad rather than establish the good we desire, we run the risk of ‘playing’ what Arsene Wenger refers to as ‘anti-football’ and establishing an ‘anti-democracy’ – establishing democratic institutions that are primarily designed to handicap government rather than a system for the ages.

Our discussion must therefore not simply be about the financial cost. There are undoubted benefits to bicameralism.

Rather than jettisoning bicameralism, could we think instead of maybe tweaking the version we currently practice to bring it closer to what would be best for us?

Could the constitution be amended such that the Speaker and the Senate President never come from the same party?

Can there be a default number of people-sponsored bills that must be debated each year in default of which the bills pass as presented?

To truly make the senate a bedrock of wisdom, can we work towards minimum educational/experience requirements for would-be senators?

Are there other measures we can employ to ensure that allowances and sham investigations are not all our legislators are preoccupied with? If the answer to all these questions is a resounding no, then perhaps there truly would be no further point to two legislative houses and our dialogue can then move on to creating the best unicameral legislature possible.

 

This piece was first published in TheScoop.

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