5 Reasons Why The New Lekki-Ikoyi Bridge Should be Left Alone

lekki-ikoyi-bridge

Yesterday, I went on the newly-opened Lekki-Ikoyi bridge for the very first time. Yes, the N250 toll was more than double what I would have paid on the Lekki-Epe toll road but my journey time was more than halved. Many have kicked against tolling infrastructure that was built with taxpayers’ money and there may well be some merit in that argument. A suit has been filed against the Lagos State Government in this regard and we will have a judicial pronouncement on the matter soon enough. In the meantime, here are 5 reasons why I think the road should be tolled.

1.    The Location

Apart from revenue, tolling also serves to control drivers’ behavior. Take the Congestion Charge in Central London, for instance. More than anything else, the toll was introduced to reduce the number of people driving themselves into London’s central business district. Call this elitist if you like, but we can’t have the whole world driving through the primest of the prime real estate in South-Western Nigeria. The toll is low enough to be practical for the residents of the newly connected vicinities yet high enough to prevent it from becoming the world’s thoroughfare.

2.    The Lekki-Epe Concession

The Government of Lagos State is led by a Senior Advocate of Nigeria. Now, yes, this is an ad hominem but the chances are that pacta sunt servanda will mean a whole lot more to them than the Federal Government. Unlike the unlearned Federal Government, which has failed to honour most of its obligations under the BiCourtney airport concession (e.g. closing down the general terminal and moving all domestic operators to the Concessionaire-operated wing), Lagos State will be keen not to create another alternative route to the Admiralty Toll Plaza. I haven’t seen the Lekki-Epe Concession Agreement but any lawyer worth their money (and intent on protect his client’s money) would have protected his client by restricting the creation of more than one alternative route.

3.    Journey Time

If you live in Lekki, you can now get to the Third Mainland Bridge in less than 10 minutes. Even Vin Diesel would struggle to do that with a souped up car on the Ozumba route, given the toll plaza, the traffic lights, the numerous intersections etc. And that’s even on a Sunday morning with little or no traffic. Time is still money in 2013, right?

4.    Have You Been on the Bridge at Night?

No really, have you? The bridge is a work of art. I overheard someone describe the drive at night as “almost sexual”.  Now I don’t know anything about that, but I guarantee that a few marriage proposals (as well as many ulterior ones) will be sealed with a walk or a drive on that bridge.

5.    Property Rates

This is more wishful thinking than anything else, but if Lekki is now only 3 minutes away from Ikoyi, should Ikoyi rentals still have a 50% (or more) markup on similar housing units in Lekki? I think not. Then again, with all the empty houses in Lekki, should there be a 40% (or more markup) on Agungi downwards? No? So what was my fifth point again?

 

What’s A State of Emergency Anyway?

On the 15th of May 2013, President Goodluck Jonathan declared a State of Emergency in 3 states in the northern region of Nigeria. Apart from the debate on the propriety or otherwise of the declaration (or “proclamation” as the constitution calls it), a lot of debate has also been had on whether or not a state of emergency can be declared with the Governors of the affected states remaining in office. With all the “sacred” opinions flying about, perhaps it is time to take an academic look at what a State of Emergency is.

What Is A State of Emergency?

A state of emergency is a proclamation by the government of a country suspending certain judicial, legislative or executive functions, or suspending certain rights guaranteed by the constitution, during times of civil unrest or natural disasters. The concept of the need for the state to have emergency powers can be traced back to 5th Century Rome, when the constitution at the time empowered the Senate to appoint a dictator for a period of 6 months, to quickly take decisions and implement strategies for victory at war. Basically, declaring a state of emergency enables the government to override usual administrative controls or circumvent usual checks and balances in order to provide the speedy, effective response a national crisis requires.

When Can A State of Emergency Be Declared?

Generally, an emergency can be declared when circumstances arise that cannot be dealt with quickly or efficiently enough under the rule of law, or under normal constitutional circumstances. Specifically, under the Nigerian constitution, the President has the power to declare a state of emergency when:

a. The Federation is at war;

b. The Federation is in imminent danger of invasion or involvement in a state of war;

c. There is actual breakdown of public order and public safety in the Federation or any part thereof, to such extent as to require extraordinary measures to restore peace and security;

d. There is a clear and present danger of actual breakdown of public order and public safety in the Federation or any part thereof requiring extraordinary measures to avert such danger;

e. There is an occurrence or imminent danger, or the occurrence of any disaster or natural calamity affecting the community or a section of the community in the Federation;

f. There is clearly a public danger which clearly constitutes a threat to the existence of the Federation; or

g. The President receives a request from a State Governor to do so.

What is the Order of Events to be Followed in Declaring a State of Emergency?

1. The President issues a proclamation of a state of emergency and publishes it in the Official Gazette.

2. Immediately after the proclamation is published in the Official Gazette, the President transmits copies to the Senate President and the Speaker of the House of Representatives.

3. The Senate President and the Speaker immediately arrange for meetings of their respective houses of legislature to consider the situation and decide whether or not to pass a resolution approving the proclamation of the state of emergency.

4. The proclamation of the state of emergency ceases to have effect –

a. If it is revoked by the President;

b. If the National Assembly fails to ratify it in each House (resolution supported by two-thirds majority) within 2 days (when the Assembly is in session) or within 10 days (when the Assembly is on recess) after the publication of the proclamation.

c. After a period of 6 months has elapsed since the proclamation came into force (the National Assembly can extend the period of the state of emergency for further periods of 6 months, as it deems fit).

d. At any time after ratification by the National Assembly, when each House of the National Assembly revokes the proclamation.

Must Governors be Suspended During States of Emergency?

While historically, Governors have always been suspended during periods of emergency, there is nothing in the Nigerian constitution that makes their suspension compulsory. The following question then is, how is military intervention in a State compatible with Governors remaining in office for the duration of the state of emergency? My answer to this (but this is not backed by any constitutional provision) is that the two are compatible in the instant situation for the following reasons:

1. The President has deployed soldiers to restore security to the various States. Security is not the only function of a State Governor. In fact, it is arguable (and perhaps even likely) that the Governor performs more administrative than security functions. Unless the affected States have completely ground to a halt, I do not see a reason why the Governor cannot continue to perform all his other functions outside security.

2. The militancy/insurgency is not taking place in every single square mile or local government area of the affected States. Many parts of the affected States continue to enjoy relative peace and normalcy. Should they be neglected because the army is fighting insurgents in pockets of the State? Should the delivery of governance to relatively unaffected areas not continue?

3. Consider that no American Governor has been suspended during periods of emergency. Not even during the manhunt for the bombers of the Boston Marathon.

4. Given that a Governor could request the President to declare a state of emergency in his State, it is unlikely (in this event) that the framers of the constitution conceived that a Governor would believe his suspension from office would be one of the outcomes of him making such a request.

Final Constitutional Question

There is the further question of whether it is even constitutional at all for Governors to be suspended during periods of emergency. Senior lawyers with much more constitutional knowledge and experience than me appear to believe that it is indeed unconstitutional; that a Governor may only be removed from office by impeachment, resignation, or on grounds of infirmity. I have a contradictory hypothesis (emphasis on hypothesis).

I would suggest, that while it is true that a Governor may only be PERMANENTLY removed by the previously-listed means, suspension from office while the period of emergency lasts is valid if ratified by the National Assembly. If a state of emergency is in effect a suspension of the constitutional order because of emergency circumstances, and the only restraint placed on the President in the constitution is that the details of the emergency rule must be ratified by the National Assembly, I think a case can be made for the validity of the temporary removal of an affected Governor from office. It remains a theory however – as is that of my renowned, most esteemed, learned seniors – until the courts are given the opportunity to rule on the question one way or the other.

The Google Lawsuit and Online Defamation in Nigeria

Image representing Google as depicted in Crunc...

Image via CrunchBase

It recently made the news, in Nigeria, that Google has been sued, along with a blogger, for an allegedly libellous post on a blog. If the suit progresses to judgement (it could either be eventually abandoned or settled out of court), it would present a wonderful opportunity for the judiciary to consider if or how the traditional principles of defamation apply to electronic publications. Interesting, as electronic (computer-generated) evidence became admissible in court only in 2011.

WHAT IS DEFAMATION?

Libel (written), together with Slander (it’s oral cousin) together make up the tort referred to as ‘defamation’. People sue for libel or slander when they believe that a statement that has been publicly made about them has injured their reputation. Suits for defamation are the counterfoil to the constitutional guarantee of free speech. Thus, while you can say whatever you like about anyone, that person is entitled to seek compensation against you if you damage his good name and reputation, or lower him in the estimation of right-thinking members of society.

WHAT ARE THE GENERAL PRINCIPLES OF DEFAMATION?

Several cases have been decided on this topic. The following is a collage of how the courts have answered this:

In any action for defamation, it is necessary for the plaintiff to prove the following:

  • Publication of the statement to at least one other person than the plaintiff;
  • That the statement referred to, or by implication referred to the plaintiff; and
  • That the statement was defamatory (injurious to reputation and good name).

“Publication” is the making known of the defamatory matter to some person other than the person of whom it was written (e.g. blogging).

A statement must be false and without lawful justification to be defamatory. Justification means that all the words published and any imputations thereto are true.

In addition to truth/justification, “fair comment” is also a defence to defamation. To successfully invoke “fair comment”, the defendant must prove:

  • The published statement must be based on facts truly stated;
  • It must the honest expression of the writer’s real opinion; and
  • It must not contain insinuations of corrupt or dishonourable motives on the person whose conduct or work is criticised, except the facts warrant such imputations.

Damages for libel are by way of monetary compensation. The court considers the following factors in awarding damages:

  • The conduct of the defendant;
  • The plaintiff’s position and standing in society;
  • The nature of the libel;
  • The mode and extent of the publication; and
  • The absence or refusal of a retraction or apology.

 

E-LIBEL

This would be our first strictly e-libel case, if it went to court, so we have no precedents in Nigerian law. When this happens, it is the practice to look to leading commonwealth jurisdictions such as Britain, Australia and America for guidance.

The UK actually has a Defamation Act, which was passed in 1996 (an even more recent one was just passed by the House of Lords and awaits passage at the House of Commons), which states in its very first section:

“1(1) In defamation proceedings a person has a defence if he shows that –

(a)    he was not the author, editor or publisher of the statement complained of;

(b)   he took reasonable care in relation to its publication; and

(c)    he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.”

“1(3) A person shall not be considered the author, editor or publisher of a statement if he is only involved  – (e) as the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control.”

It would seem from Section 1(3)(e), just quoted, that this would mean that “hosts” such as Google would have no liability for defamatory material published by users of its services. Indeed, this appears to be the position in the USA. However, in this English decision, the courts decided that the host was jointly liable, though ultimately, not simply for hosting, but for refusing to take the post down after the Plaintiff notified them of the offensive material. The position of liability after being asked to take down offensive posts was recently reinforced in Tamiz vs Google. See this blog post for a more extensive explanation.

 

ARE NIGERIAN COURTS LIKELY TO HOLD GOOGLE LIABLE?

The position of the law (abroad, at least) appears to be that a web host will be liable if it refuses to block access to or take down libellous material after it has been notified and required to do so. If this principle were to be followed, then a plaintiff would need to show that he notified Google (or whoever the host is) and that Google allowed the material to continue to be viewed in spite of the notification.

The Convention

*This piece is a work of fiction and the ribbing is intended to be in good humour.*

 

This story cannot begin without me telling how I got into the business; how I became a surgeon of destinies. Well, I am only in my first year or practice, so perhaps I’m still a resident or trainee surgeon but well on the way to being a consultant. Forgive the medical metaphors, I probably watch a little too much Grey’s Anatomy in my ever-shrinking windows of spare time. I’ve become much busier these days. And I digress.

One Sunday, at Church, rather than have a conventional sermon, the preacher invited a motivational speaker to talk to us about fixing all aspects of our lives, especially our marriages and careers and getting everything back on track. I was spellbound. I had just lost my job in the aftermath of the bursting of the banking sector bubble and had been trying to figure out the next phase of my life. After I heard the man who would later become my mentor speak, I knew what I wanted to do. I made sure I met the speaker after the sermon and spent the next 3 weeks begging him to let me be his personal assistant. I was well-educated enough and I was willing to work for absolutely nothing. Soon enough, I was taught the basics of the trade.

“First of all”, he said, “you have to dress and sound like the archetypical dream husband. You must be immaculately groomed. Low haircut, chiselled hairline, bespoke suits and a high-sounding but not too evangelical lilt to your voice.”

So I invested some of my bank severance money in 2 expensive suits, a killer pair of black leather shoes (the plan was to expand my shoe options once I got onto the speaking circuit), and cufflinks. My banker’s shirts had always been well cut, so no problem there.

“Next”, he said, “you must develop the ability to make the most mundane things sound unbelievably profound. The simpler the concept ostensibly sounds, the more profundity you can inject into it. Especially, most especially, if you rhyme.”

“Rhyme?” I asked. “Oh yes”, he replied, “to make it in the big time, you gotta learn to rhyme a rhyme.”

Fast learner that I am, I retorted, “You mean to win the bingo, I have to learn the lingo?”

“Precisely”, he said, laughing heartily. “You’re catching on very quickly.”

“What else must I learn in order to earn?” I asked eagerly.

“Calm down now”, he cautioned, “a gig isn’t a day at the crèche. Not too much rhyming. Remember, profound. There’s a thin line between profound and cheesy. A great Life Coach never crosses that line. Okay?” I nodded.

“You also need a treasure trove of scripture to buttress metaphors of increase and promotion. We are in the business of selling hope. Hope that if a person truly believes it, he can achieve it. Now, if you can garnish the hope with scripture, legitimise it so it doesn’t sound like being greedy or covetous, you cannot go wrong.

“For instance, the scripture says ‘Beloved, I wish above all things that you may prosper and be in health, even as your soul prospers’. This clearly supports the aspiration to ‘go higher’, to ‘be better’. Our message is, if you hold on to God, it’s okay to also want prosperity.”

I nodded again, soaking it all in.

“Now, to the imagery. Again, it has to be crisp, catchy and validative of improvement in personal circumstances. So, lots of ladders…”

“You have to empty your bladder to climb that ladder?”

“Bladder, sha?” he asked, looking confused.

“Well, if you take the bladder as an organ that removes harmful things from our blood, the statement could be symbolic of purging oneself of the harmful things in one’s life – vices like smoking, excessive drinking, womanising…”

“You know what?” said my mentor, “let’s forget the ladders. How about mountains?”

“There’s a fountain beyond that mountain?”

“Dude, calm down. That’s not profound enough.”

“I respectfully disagree, sir. Finding a fountain after a mountain symbolises a reward, perhaps a divine one even, after the struggle of, well, surmounting the mountain. In  fact, how about ‘surmount the mount to reach the fount’?”

“No, no, no, no! Forget mountains, then.” For some reason, my mentor seemed upset. “Let’s think altitude, you know, a variable height.”

“Someone’s already done that. Your attitude determines your altitude? Haven’t you heard that one before? Aspire to go higher? Acquire the fire? Perspiration determines your elevation?”

“You know what?” my mentor said, taking in a deep breath as if to calm himself, “there’s a Life Coaches convention in Abuja next week. Newbies like you can attend the 2-day course and become Associate Members of the Chartered Institute of Motivational Speaking and Life Coaching. More than anything else, there’s a chance to meet other mentors. Much greater coaches than myself. Perhaps they might be able to show you an even better way.”

So here I am at the convention in Abuja. It was during the flight that I decided that I wasn’t going to be a mere life coach – I was going to be a surgeon of destinies. It sounded profound enough. I had also started working on a mantra that I wanted to run by the coaches at the institute, but I won’t bore with you with it.

As I enter the convention auditorium, I hear an attendee ask his colleague if he would like a coke. The colleague replied, “Not for me. A coke will make you choke, but a Fanta is made for banter.”

Ah, I say to myself. I am in the right place.

Where Is The Outrage? Take Action Now!

Change AIN’T gon’ come…

Olorungemstone

WHERE IS THE OUTRAGE?!

I am quite vexed this morning. I have been following EiE’s petition for Alams especially, to be banned from travelling and I am very disappointed that there have only been less than 1,500 signatures. A thousand five hundred signatures!!!

Really?!

So where are all the people who were making noise and ranting on twitter and facebook about Alams and all those other terrible people being pardoned? Where are you all? Where are all those people who were berating other Nigerians for throwing around #OgaAtTheTop jokes instead of slapping GEJ? C’mon! Surely we can do better than 1,445? Surely! I don send message to facebook friends so tay facebook blocked me from accessing my account. Let us all play a part here. Sign this petition.

 

1,000 signatures and counting!

Ex Justice Minister, Mike Aondoakaa, sues US for visa revocation. Ex IGP, Hafiz Ringim, seeks asylum…

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THE LOGIC OF AMNESTY

First, they had no spokesperson and their demands were unknown. Then, they were ghosts and the government was not going to put itself through the indignity of negotiating through psychic mediums, spiritualists and marabouts. Now, it seems somebody’s called the Ghostbusters, told them that their services will never be needed and an amnesty committee has been constituted to make recommendations concerning Boko Haram.

 

This follows hot on the heels of what many might consider a pre-emptive strike, with the Federal Government said to have awarded yet another dodgy security contract, this time in the South-Western region of the country, to yet another leader of a local militia. The contract is said to be worth N2.4bn a month and it is unclear what the duration is. Southern Nigeria is now crawling with guerrilla warlords who have been rewarded for their mutinous behaviour with “juicy” government work. Let’s ignore the fact that we have several security agencies and reasonably-sized armed forces. Let me not say that government is outsourcing the performance of what the constitution describes as its “primary purpose”, when my ogamost oga at the top is clearly saying something else.

My “Ogamost” Oga At The Top

THISDAY reports that the president “bowed to pressure” to shift ground on amnesty for Boko Haram. This pressure came from many elder statesmen and even a branch of the Nigerian Bar Association. The logic behind the pressure is that amnesty worked in the Niger Delta (although this post empirically questions the correlation between the amnesty programme and increased output in the Niger Delta), therefore amnesty will quell every uprising Nigeria will ever have. Alright, so I have laced it with a healthy dose of cynicism but this clearly is untenable not only from a policy position but also from that of logic.

Granted, there is the solitary similarity between Boko Haram and the Movement for the Emancipation of The Niger Delta (MEND) – they are both militant groups with tribal/sectional origins. But that must be where the similarity ends. MEND was ostensibly fighting for the diversion of a greater portion of the region’s mineral wealth to its own people and remediation of all the damage to their farming land and fishing waters. When the government commenced its amnesty programme there, it first of all admitted that it had wronged the people of the Niger Delta. There was some logic to the government saying, in that instance, “your fight is an honourable one; we have wronged you; lay down your arms, come back into decent society and not only will we not punish your insurgency, we will restore all that the cankerworm has eaten.” Or words to that effect, anyway.

On the other hand is Boko Haram, whose cause no one has been able to successfully articulate AND rationalise. “Rationalise”, for me, is the key part of that sentence. Were they formed for an aim that rational society should accommodate? Can any of their demands be met rationally? Is there anything rational in all that they have said or done since they stepped into the international spotlight? If the answer to all these is a resounding ‘NO’, what then is the rationale for granting them amnesty? What has led the government to believe it can reason with them? Above all, what part of their behaviour or rhetoric suggests that amnesty would even be a useful tool? Lest we forget, the predominant MO for MEND was to kidnap oil workers and sabotage oil infrastructure. Boko Haram are suicide bombers.

Now, I fully understand that Borno and Kano have been ravaged by the sect and the people just want peace. But is peace at any price really peace? Boko Haram wants less of an interaction with western civilisation and the implementation of Sharia law nationwide. How do you begin such negotiations? Ok, we’ll ban western education in Borno and Kano States but you have to leave the rest of the country alone? You get to have Sharia in a maximum of 10 northern states and that’s it? And if they renege and pick up their arms again tomorrow, do we show more flexibility on where ‘Boko’ will be ‘Haram’ and how far Sharia will be allowed to spread? Only recently, a splinter group, Ansaru, has been reported to be even more deadly than the original Boko Haram. Should they be offered amnesty too? Is amnesty for Boko Haram justice?

 

 

Location of the four cities in north eastern N...

Location of the four cities in north eastern Nigeria where the Boko Haram conflict took place. (Photo credit: Wikipedia)

 

The message from the government is also quite clear. Arm yourselves, disrupt activity within the nation with as much violence as you can muster. We will reward you from the abundance of our treasury. You will be rich beyond your wildest dreams. Unlike your peers who are busy acquiring an education or struggling to build a career. They would be dead to us, if not for the taxes we need them to pay.

Abati, Our Sophisticated Ignorance & A Dollop of History

Reuben Abati recently outperformed the 2-man (or 1-man/1-woman) interview panel at Channels TV for the second consecutive time. Either his mind was too nimble for theirs or, in the face of attacks of “unprofessionalism” over the oga at the top saga, they chose to be extremely professional with him. In either event, he got away with justifying the presidential pardon of a convicted looter of public funds, someone who, rather conveniently or coincidentally or both, the president has referred to as his political benefactor. Dr. Abati also accused us, who are disgusted by the pardon, of “sophisticated ignorance”. Thankfully, Simon Kolawole has since pointed out Abati’s “sophisticated amnesia” but that isn’t the focus of this piece. I am curious about this business of presidential pardons and eager to cure my ignorance, sophisticated or otherwise.

Anyone familiar with my writing will know by now that I have a penchant for querying the propriety of administrative acts from the perspective of the jurisprudence behind the law that empowered the acts (Abati even ventured into the jurisprudence of punishment in his interview, a topic I previously visited here and to which we shall return presently). So, pardons, where did they come from?

The origins of the presidential pardon lie in the Prerogative of Mercy of the English monarch, being recorded in law as early as 668 AD. Initially, the King’s power to pardon was unfettered but by the reign of King Charles II, parliament excluded impeachments from the previously unlimited scope of offences that could be pardoned by the Crown. At a time the King, upon the declaration of war, as a ploy to swell the number of his troops, would pardon everyone who had committed a homicide or a felony, on the condition that they served a year for free in the army. However, over the centuries, it was obvious that the power was open to abuse, particular in relation to the wealthy or connected members of society, and parliament tried many times to curtail it. They only succeeded in the time of Charles the II because he pardoned the Treasurer/Chief Minister (today’s ‘Chancellor/Prime Minister’?), the Earl of Danby, who was about to be impeached. Parliament declared the pardon illegal but Danby himself resigned shortly afterwards, to avert a constitutional crisis.  Forgive the history lesson; on to America, whose constitution we adapted.

In this commentary on the constitutional history of the prerogative of mercy, the writers note that when the power to pardon first evolved, the punishments for many crimes was death, making the power not only useful, but necessary. By the time the American constitution was being framed, things were not so dire. However, it was still thought that the power to pardon was necessary for those exceptional circumstances in which the legal system failed to yield a morally or politically acceptable result. This paper here says the following about the positive use of the power to pardon, by American presidents:

“Pardon proved its practicality right away, in helping the president deal with a series of rebellions and invasions in the early years of the Republic: “The pardon could bring rebels back into the fold, or it could repopulate the army by restoring deserters to service.”  President Lincoln issued pardons throughout the Civil War to deal with desertion and draft evasion on the Union side, and to undercut the rebellion in the Border States. Presidents Johnson and Grant used the power to clean up afterwards, as did Presidents Theodore Roosevelt, Coolidge, Harding and Truman in connection with later wars.  More recently, Presidents Ford and Carter both issued amnesties to draft law violators and military deserters from the Vietnam era. Like the Nixon pardon, these amnesties represent classic uses of the power to reconcile national differences.

So, we see a picture emerging. Show grace where the outcome at the courts is clearly unconscionable, readmit a class of outlaws or outcasts in furtherance of national healing. Furthermore, since 1898, when President McKinley signed the Clemency Rules, applications for clemency (or pardon) have been made to the Justice Department’s pardon attorney and, with only very few exceptions, presidential pardons have been granted on the recommendation of pardon attorney (said recommendations being signed by the attorney-general).

Alright, enough of the history. Let us compare the sections of law that grant the president the power to pardon. Section 175(1)(a) of the Nigerian constitution says:

(1)    “The President may –

  1. Grant any person concerned with or convicted of any offence created by an Act of the National Assembly a pardon, either free or subject to lawful conditions;”

Article II Section 2 of the US constitution says, with relevance to the prerogative of mercy: “[The President] shall have power to grant Reprieves and Pardons for offenses against the United States, except in the case of impeachment.”

Thus, while in the United States the president cannot pardon anyone who has been impeached by Congress, in Nigeria, contrary to the position in our judicial forbears, the president’s power to pardon is without limit. Impeachments are fairly rare, however, so perhaps not much should be read into this.

In his paymasters’ defence, Abati rightly points out that pardons are always controversial (see here for a list of controversial pardons) and cites President Clinton’s controversial last-day-in-office pardons in support of his argument. However, unlike Abati’s principal, who has chosen to hide behind media aides, President Clinton published an extensive explanation of those considered the most controversial of the pardons. Clinton points out that the recipients had to agree to be fined in a similar fashion to others similarly accused, in the event that prosecutors found similar circumstances to apply.

Abati says that the convicted looter pleaded guilty, served time, forfeited property and was therefore worthy of being pardoned. He omitted to say that the looter jumped bail in London in 2005 and is still wanted there to respond to money-laundering charges. Or that he was impeached from office, which would be red flag in the UK and the US. We may be sophisticatedly ignorant but we are very clearly not stupid.

The crux of it all is this: given the jurisprudence of the presidential power to pardon, the severity of the offences for which the convicted looter was punished, our country’s much vaunted war on corruption and language with which Abati himself described the looter in 2005, can a charge of sophisticated ignorance be substantiated? One can try, as Abati did, but only very disingenuously. Perhaps sophisticatedly so, even.

“Rome Wasn’t Built In A Day”; Who’s asking for Rome?

A London Underground roundel at one of the ent...

A London Underground roundel at one of the entrances to Piccadilly Circus tube station. Piccadilly Circus itself is in the background. (Photo credit: Wikipedia)

When the government recently announced the completion of (the refurbishment of) the Lagos-Kano rail line, the government’s own media people congratulated their principals and assured the rest of the country that if we were patient, we would continue to see the country being transformed, that after all,  Rome was not built in a day. This is a defence used very often by the PDP since 1999 but more so since the inauguration of the incumbent head of state, first as acting president and then after the elections of 2011. The Roman Empire took several centuries to build, our civilisation remains nascent, so bear with us. America’s democracy is nearly 300 years old, we are barely 14 years into ours, so forgive our occasional buffoonery wobble along the way.

“Rome Was Not Built in a Day” might just be the biggest political fallacy of our time. The crux of the argument there is that empires take several years to build and as such we should not expect overnight change. The truth however, is that no one is asking for an empire to be built. And even if we were, would it not be foolish to expect it to take the same length of time today as it took to establish Rome from 27 BC onwards? If the resources and technology available to us today were available to the ancient Romans, would the expression “Rome wasn’t built in a day” even be in existence? Perhaps we should look at rail transport in one of its oldest forms and how it was implemented in another country more recently.

The history of rapid transit (by rail) began in London with the opening of the Metropolitan Railway which now forms a part of the London Underground network. This happened in 1863, with the idea being to reduce the congestion on the roads and to provide working class people with cheap transportation so that they could live in the districts adjacent to (ie the suburbs of) the central business area. In 1864, a patent was obtained by Peter William Barlow for the method/process of digging tunnels using a wrought iron shield. The first subway tunnel (410m long) was dug in 1869 and went into use from 1870. By 1890, the first proper “tube” line was constructed, in twin tunnels, stretching initially over 5.4km. Today, the London Underground (which recently celebrated its 150th anniversary) has 270 stations and is 402km in length.

Fast-forward to 1983 in Singapore, when the first-phase of the metro began. It cost an initial $5bn and, in 1987, the first section (over 6km long, serving 5 stations) opened. By 1988 a further 15 stations had opened and yet another 21 stations were added to the system by 1990, with the project being completed 2 years ahead of schedule. Today, Singapore’s Mass rapid Transit serves over 100 stations, with nearly 150km of lines in operation.

In 1983 (when the Singapore construction started), the London Underground was already 120 years old!! However, there is no comparing the first 20 years of the London Underground with even the first 5 of Singapore’s. Singapore also built the world’s first automated metro system. Rome was not built in a day but imagine if the Romans had today’s technology.

On the 21st of December 2012, after the sum of N24.3bn had been spent by the Federal Government (although the Obasanjo government awarded an $8.3bn contract in respect of the same project, so some clarification needs to be sought on that), the Lagos-Kano railway line was reopened to passengers after about 10 years. The passenger service operates only once a week and lasts 30 hours. Now, from the viewpoint of there not being a service at all for the past 10 years (and at all at all na hin bad pass) this can be termed progress. Rome wasn’t built in a day, but this is 2013. Lagos to Kano is about 1200km with travel time of 30 hours. London to Dundee, nearly 800km, will take you a maximum of 7 hours by train. A rail journey from Penn Station in New York to Chicago Union Station, a journey of nearly 1,300km takes only 19 hours. And, before the reader despairs at the comparison of Nigeria with the US/UK, it should not be forgotten that Nigeria plans to be one of the world’s leading 20 economies in only 7 years’ time – if we do not compare ourselves with the countries currently in that league, how will we know how much ground we have left to make up?

Defenders of the government (“Doreneuben Omokubati”) will probably categorise this piece under the “never see anything good in government” articles but we can no longer be satisfied with merely the slightest improvements on the key things on which our development as a country turns. Even if all the old rail lines were to be resurrected, without an improvement in journey times (from what they were in the 80s) and even in the carriages and coaches themselves, I say we continue to demand more.  If travel by rail is not making enough sense as to take cars (i.e. car owners who would ordinarily drive) off the corresponding road journey, what are we celebrating? 30 hours to travel from Lagos to Kano? In 2013? Are we still in the days of Eze Goes To School? Hercule Poirot needed only half this time to solve the murder on the orient express. Rome was truly not built in a day but imagine, if you can, what the Romans would achieve with our current resources.

First published on thescoopng.com 

Jurisprudential Conundrum

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.