The Chronicles of Chill: Episode VI – Lost Gods of Lavatoria

 

 

“Delegates are the principal thing. Get delegates. And in all thy getting, get nominated. Even if the votes surpass the number of delegates in the land. For this is the will of the LOL concerning you.” – Ancient Mediana Scrolls

 

 

 

From the time of the proclamation of Moozes, wherein he averred that half of Gideria shitteth publicly, chill departed from the land. The people of Twilistia, in Elite Gideria and Naijasteros did brace themselves for a season of unchill for there remaineth no gaddem way that chill would return to the land until Jegatronix pronounced an end to the season of electoralis.

 

And yea, all over Naijasteros were there held electoralis minora. In the North Easteros region of Naijastros was a man named Nuhum. Nuhum desired in his heart that he would be King of Adamantium. Though he had been persecuted by Gejoshaphat and the house of Padipalia, he pledged fealty and his sword to them and was named their champion for electoralis majora.

 

In Gideria, King Fasholam, who reigned in the stead of his forbear Shiwajun, was not in accord with him. As has been foretold, Ambsalom found favour with Shiwajun and it pleased Shiwajun greatly for Ambsalom to rule in Fasholam’s stead at the end of the quadrannum. But Fasholam favoureth Shoopor of Mumbai and lo, were there tense moments in the Giderian house of Apicuria.

 

Fasholam stood with Shoopor and impresseth upon the delegatus to name Shoopor their champion for electoralis majora. But the hearts of the delegatus were hardened towards and Fasholam and endeared to Shiwajun. And they took no heed of the Tword that Ambsalom was of Ondonia, not Gideria, and did name him their champion for electoralis majora.

 

And all was well in the Giderian house of Apicuria. And lo, did Shiwajun make proclamation after the vanquishment of Shoopor, saying, “Knowest all ye of Gideria and beyond, and takest thou heed of my words, that no divide stands between Fasholam and myself!” Yea, did a number Twilistines, Social Medianites and Digital Perusites yinmu-eth at Shiwajun, but all was largely well.

 

And it came to pass shortly afterwards, that it was time for Giderian Padipalians to hold electoralis minora for Moozes, Jimothy and Boganus, who shewed himself an Expendable on the day.

 

It was said of Moozes, by the Elders of Giderian Padipalia, that he was uncouth and of inferior breeding to Jimothy. Neither man being an animal of domestication, Moozes made bold to declare that the true man of majora would be known at the end of electoralis, and that it would not be the meister who had done nothing useful with his life beyond dispensing medicaments from a corner shop in the village square.

 

And from the moment Giderian Padipalia began electoralis minora, there was not a modicum, nay an iota, nay further a speculum of gaddem chill across the length and breadth of the venue.

 

The forces of Moozes clashed with the forces of Jimothy and yea, could Moozes not part them. And Boganus arrived electoralis wearing chain mail armor for he was fearful for his life, yet his men wore none, for they were expendable – with a small E.

 

Ayedeevedov and Himaza continued their vigil for Moozes, desirous of his coronation as king at electoralis majora. Indeed, there were assured that the gods of porcelania and lavatoria, of whose gospel Moozes was an Apostle, would grant him favour.

 

And lo, was this electoralis the longest the Twilistines had seen, for even unto the 14th hour of the day was there a census of the delegates, and yea was it determined that they were 5 gross 4 score and six in number. And then did the delegates vote.

 

It came to pass that when the delegates had finished casting their votes, Boganus in his chain armor cried out to the Centurions and Sentinels at electoralis, “Defend ye this day the votes which the delegates have cast. Suffer them not to be moved, removed or altered. Preserve ye the sanctity of electoralis, as thou and this chain armour upon my chest protecteth my life.” And lo, the Centurions and Sentinels formed a ring of fire around the ballots, that no one might impugn them.

 

When the elders of Giderian Padipalia counted the votes of the delegates, a befuddling wonderment had taken place. The votes had increased in number by2 score and 17, to six gross less 1. This miracle took place before all men at electoralis minora and none could explain it. And Ayedeevedov, who until then maintaineth good cheer, imbimbed the spirit of the Tword and he began to prophesy, though it was said that this prophecy was more akin to lamentation.

 

Upon counting, the elders declared Jimothy the Meister champion of Giderian Padipalia at electoralis majora, where he would do battle with Ambsalom of Apicuria.

 

And lo, was there scornful rejoicing in the land, with joyful derision and subsidious subotomy spaken to Himaza, Ayedeevedov, and all those who had trusted in the gods of porcelania and lavatoria. Chill had long since departed…

 

 

 

 

 

 

 

 

The Chronicles of Chill – Episode V: Fecum Providentia

 After the time of the unchill of the season of (Me)Linda Gate(s), a season of chill came upon the lands of Twilistia and Social Mediana. Ayedeeveedov, who was thought to be a Prophet of Googlam, did not continue in the ways of Googlam and took upon himself the garb of a scribe, and yea did he pontificate upon matters of war, of peace and of the koronation of a coming king.

And lo was there chill. But the chill was lukewarm and not chilled and unpervasive, and very soon was spat out. And yea, were there reasons for the unchilling of chill.

High Priest of Saxophonia, Fematicus, went unto and knew his wife over five seasons. And she bore five children but lo, did he drive the first two away from his household, for they were the son and daughter of Adulteram. And Adulteram was not of the house of Saxophonia.

High Priestess Melinda of Gossipotamia received a vision of the exodus of the children of Adulteram but the god of Saxophonia was at least 96 moons ahead of the gods of Gossipotamia. And Fematicus demanded of Melinda that the engravings of the sons of Saxophonia be removed from her temple; and yea, was there a very fleeting peace. In truth, there was no peace.

In those days, Jegatronix, a Gaul from the House of Necolas, was chief elector in the land. The time was nigh, upon which King Gejoshaphat and the lesser kings of Naijasteros would either depart from the thrones and be replaced by others, or return in triumph for a further quadrannum of time. And Jeganotrix had proclaimed the season of electoralis.

In the kingdom of Gideria, King Fasholam, a good and upright king was nearing the completion of his second quadrannum on the throne, and lo, was it forbidden for him to return for a third quadrannum. For only one King had tried to break the sacred law of the quadrannum, and yea did it end in opprobrium and infamy for King Shegolas of Owurutas.

From the House of PaDiPalia there emerged two sons, whose desire it was to receive the people’s anointing and be declared by Jegatronix as King in Fasholam’s stead. The first was a meister, known to men as Jimothy. The second was a courtesan of King Gejosphat, having served as sub-centurion of Gejoshaphat’s armies. His name was Moozes.

Moozes and Jimothy were known to Fahsolam, for they had set their heads against his for the crown of Gideria in previous quadrannia, and even against Shiwajun, in whose stead Fahsolam had taken the throne. And yea did Moozes contend time upon time that Shiwajun was not of the kingdom of Gideria (but of Oshunlonica), and yea did he so contend in vain.

In the house of APiCuriam, from whence Shiwajun and Fahsolam came, was there a man named Shoopor of Mumbai. He was a Pharisee, like Fasholam and also wished to be king. Ambsalom, a tax collector, also from the house of APiCuriam, was himself desirous of the throne as well. Ambsalom presented himself as a son of Eperati, in the kingdom of Gideria, but lo did his enemies divine of the scribes of Jamboree and yea was it first recorded that Ambsalom was from the kingdom of Ondonia.

But the hand of Shiwajun was upon Ambsalom and it ceased to be counted against him that he originateth from Ondonia, for it was said that Ambsalom’s mother came from the town of Eperati and that sufficeth.

And it came to pass that Moozes and Jimothy made their own desires known to the people of Gideria on the same day. Moozes spoke in the town square of Gideria, while Jimothy spake only to the Giderians of Social Mediana and the Digital Perusi, for the PaDiPalians could not have the Town Square on the same day.

And while, Moozes spakes from the Town Square, the tword of Moozes was relayed to the Twillistines by a young man named Himaza, who was Moozes’ squire. And yea, was this the tword of Moozes as it came to the tweeple.

“People of Gideria, behold, a time of greatness is upon thee! If thou crownest me king, then will I build infirmaries all over our kingdom! For 7 times out of 10 when thou fallest ill, it is mosquitosis. And yea, shall we banish it from the land!”

The people of Gideria cheered but the Twillistines and Social Medianites continued to regard Moozes and Himaza his squire in silence. Moozes continued.

“Behold, people of Gideria, if thou wouldest crown me thy king, your children would be of greater learning, with 60 billion shekels! It is a thing of great sadness that only 2 out of 100 of our places of study are comparable to the standards of Babylonia. Marvel, as I create a teacheropolis for the rabbis who instruct as well!”

And yea, was there further acclamation in Gideria but only a mild murmur in Twilistia. And yet did Moozes proceed to speak further.

“Hear me, good people of Gideria! Behold, if I were king over thee and thine households, yea would I strew the streets of Gideria and Lagoslopolis with lavatories, for 47 out of 100 of you defecate publicly.”

And lo, were the ears of the chronicler deafened, for there erupted a riotous roar and there was no longer a gaddem modicum of chill in the gaddem land!!!

The Judgment Banning Tolling on the Lekki-Ikoyi Bridge

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On the 27th of March 2014, the Federal High Court, sitting in Lagos, held that “there was no existing law in Lagos State, permitting the collection of toll on the newly constructed Lekki-Ikoyi Suspension Bridge in Lagos.” Now, lawyers are usually wary about commenting on a judgment that they have not read in its entirety, but various newspapers quoted the judge’s ratio (i.e. the thinking behind the court’s ruling) extensively. This commentary will be based on the quoted excerpts and the provisions of the Lagos State Public Private Partnership Law of 2011.

 

The PPPL establishes an Office of Public Private Partnerships and gives it powers and responsibilities. It sets the framework for entering into Concession Agreements and states that they must be ratified by the House of Assembly before implementation. Good, so far? Okay then. Let us return to the court’s judgement briefly.

 

Justice Saidu is reported to have held as follows:

“The third respondent [i.e. the Attorney-General of Lagos State] tried to justify the collection of such toll in paragraph 26 of their counter affidavit, by stating that when the bridge is erected, its proceeds will be applied to the consolidated revenue fund of the LASG.

“The question now is, has the LASG made the appropriate law to enable her collect such toll on the bridge? The third respondent only cited sections 27, 28, and 29 of the Lagos State Public Private Partnership Law 2011 as making provision for the collection of revenue. There is nothing before me to show that the subject matter in this case was as a result of any Public Private Partnership law, to enable the law of 2011 be extended.”

 

–       (See more at: http://www.vanguardngr.com/2014/03/lekki-ikoyi-link-bridge-law-backs-tolling-says-court/#sthash.iy4mkUCe.dpuf)

 

The thrust of His Lordship’s judgement therefore appears to be that toll cannot be collected on the bridge pursuant to a provision in the PPPL because the bridge was constructed with funds from the public purse and is therefore not a PPP project.

 

Is this a correct position to hold? Does the title of a law limit the scope of the law? Let us examine the referenced sections of the PPPL and then discuss the rudiments of statutory interpretation.

 

Section 27: Notwithstanding the provisions of any Law [of Lagos State], the [Governing] Board [of the Office of PPP] may designate any public infrastructure or public asset, any road, bridge or highway within the State as public infrastructure[i] or public assets[ii] with respect to which user fee or toll shall be payable for the purpose of this Law subject to the approval of the House of Assembly.

 

Section 28: Notwithstanding the provisions of any Law, the Board may in the relevant concession or other agreement, authorise any person, in return for undertaking such obligations as may be specified in a concession or project agreement with respect to the design, construction, maintenance, operation, improvement or financing of public infrastructure or public assets, to enjoy specific rights as may be stated in the concession or project agreement including the right to levy, collect and retain service charges, user fees or tolls in respect of the use of the public infrastructure or public assets.

 

Section 29 is long and boring but can be summarised as providing for regulating tolls and conditions under which the public will access the infrastructure. You can view the full PPPL here.

 

In simpler English, section 27 says that regardless of what any other Lagos law says, the PPP Board has the power to designate public infrastructure or assets for tolling, subject to the approval of the state’s House of Assembly. Section 28 says that a person/company can be authorised to levy and collect tolls in return for fulfilling its (i.e. the authorised person’s) obligations under a concession agreement or other agreement, regardless of what any other law of Lagos State says.

 

Bearing the foregoing in mind, was the judge correct to hold that public infrastructure and assets may only be designated for tolling under PPPs? I would respectfully disagree with the honourable judge for the reasons that follow.

 

1. Long Title: Laws generally have a long title at the beginning, as well as a short title at the end. Both are aids for interpreting laws. The short title of the law we’re considering is The Lagos State Public Private Partnership Law. This might lead readers to think the law only legislates on PPPs but I think the long title suggests otherwise – A Law To Provide For Public Private Partnerships, Establish the Office of Public Private Partnerships, Enhance Infrastructure and Service Development in Lagos State and for Connected Purposes. The purpose of the law is four-fold, one of which is enhancing infrastructure and service development in Lagos State. It is not solely concerned with PPPs. My learning friends at the Law School would probably support me if I went further to say that the phrase “and for connected purposes” is added to the long title of every law specifically to avoid being put in a straight-jacket as the Federal High Court did here.

 

2. Sections 27 & 28: Even if the law were held to only apply to PPPs, sections 27 & 28 begin with the words ‘notwithstanding the provisions of any Law’. This expression recognises that laws overlap each other in practice, even if this is not the intention of the House of Assembly; laws do not exist in isolation to each other. This means that unless expressly excluded (as done here), other laws can impact on the PPPL. The inference is also thus that unless sections 27 and 28 limited their application to PPPs, courts should not impute this restriction unless not to do so would lead to an absurdity.

 

3. Section 27, again: Section 27 gives the power to designate public infrastructure and public assets for tolling. ‘Public Infrastructure’ and ‘Public Assets’ as defined by the PPL (and reproduced below) have not been defined as assets/infrastructure that were built/developed under PPPs. Now, it might scare us to know that the government can wake up and decide to toll any public facility or amenity but ratification by the House of Assembly has been inserted as a check on the executive (we know they’re more often than not the rubber-stamp of the executive but the principle can’t be faulted).

 

MATTERS ARISING

The Lagos State Government has filed an appeal against the judgement, though it continues to collect tolls in the interim. Did they apply for a stay of execution and if yes, was it granted? [UPDATE: I’ve just been informed that the hearing for the application for a stay of execution is fixed for April 25. With Senior Advocates of Nigeria as Governor and Attorney-General, it is somewhat surprising that toll collection continues.] The lawyer who brought the action against the government claims to have been the target of assassins. We pray for his continued safety and well-being.

 

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ENDNOTES

[i]Public Infrastructure is defined by the PPPL to include ‘public facilities and amenities including roads, bridges, highways, rail lines, water transportation facility, public water works, housing, electric power stations, hospitals, recreational parks, motor parks, waste disposal facility, amusement centres and any other infrastructure or amenities for public use.’

[ii]Public Asset is defined by the PPPL to include ‘the right of use of any property or economic opportunity of a public nature arising from the use of public property.’

The Shiny Roads & Bridges Will Not Build Themselves

A few weeks ago, I was at a lawyers’ mini confab on infrastructure and cross-border investments in Africa and learnt about Mauritius, the Netherlands and the UK being some of the most favourable countries through which to route your investment to Nigeria.

 

After the polite nattering was done and most of those in attendance, with sensitive stomachs had left, I was privileged to have drinks with some fine lawyers and one or two people representing heavy investments in PPP infrastructure in Nigeria. Experience has shown that the greatest benefit (and knowledge sharing) at these summits arise when the cameras have been turned off, the taps of the world’s greatest social lubricant, alcohol, have been turned on and people are free to speak and curse as they like. Coincidentally, the Lekki bridge judgement had just been announced, so it naturally featured in our conversation.

 

The following are some of the golden nuggets shared by the prestigious gathering. It’s all anecdotal, so it’s probably unsafe to quote any of this outside your watering hole.

 

There is a local demand for infrastructure that Nigeria on its own cannot afford to build. This is widely accepted amongst industry analysts and is the justification for public-private partnerships with the various levels of Nigeria’s government. The roads, bridges, tunnels, power stations, water and drainage networks, houses, hospitals, etc., that government should provide as basic amenities will need significant funding from private (and, usually, foreign) parties to happen.

 

The Government is sending out mixed messages on its vision for PPP. The first problem here, and this is my personal opinion, is that not enough of the decision makers know enough about the structure of PPPs, to not bungle it. The concessionaire for MMA2, for example, was frequently summoned by various committees to come and account for the money he was spending during construction! They would typically order work to stop and he would fly to Abuja at his own expense to explain that government did not give him a penny. The general aviation terminal was also supposed to be shut down and there was to be no further airport development within Lagos State. We all know how Arik refused to vacate the GAT and that a new airport will be built in Lekki. His lenders are circling.

 

Same with Lagos State and the Lekki-Ikoyi bridge. Everyone present at our soiree agreed that it was infrastructure that was needed, that it was world class and that it was properly delivered. The issue is that under the concession agreement with the Lekki Concession Company (of the Lekki-Epe toll road), reportedly, no further alternative route is to be built within 300 metres of the toll road.

 

Why the fuss? Well, when you approach lenders for project financing, it is understood that loan repayment comes from revenues generated by the project. The revenue projections determine the conditions for lending and even the slightest default could trigger significant penalties. It is estimated that 25,000 vehicles go through the Lekki-Ikoyi bridge daily and that traffic at the LCC Admiralty Toll dropped to 75,000 vehicles daily from about 90,000 after the bridge became operational. A 15,000 vehicle hit on your daily bottom line is not insignificant.

 

There are hoardes of potential investors at the gates. This conversation was had before our glorious week of rebasing, so it was not yet known for sure that we were twice as large an economy as had previously been thought. However, even with the old GDP figures, there were many people out there itching to come and invest. The snag is that most of the intended projects are not bankable. The issue with bankability is not that a healthy ROI does not exist – it is that political and local community risks are way too high. See for example, how the Chevron toll is yet to become active, then go back to the principle that a funded project repays its own debt. What happens to the deficit in actual revenue versus projected? Think also to how things can go pear-shaped if a different party/regime comes into office. We have the old Buhari and railways project as a reminder here too.

 

The Fix? The government has to decide whether it needs PPP help or not. If yes, then it should be doing all it can to boost confidence in the Nigerian PPP. Politicians and policy makers need to stop being so twitchy. Nigerians also need to decide if they’re happy with the status quo or want these new shiny roads and bridges. Yes, we pay taxes but if the 24% unemployment and 60% youth unemployment figures are to be believed, coupled with huge numbers of people either underpaying or not paying taxes at all, then it may be erroneous to think that the taxes and national income are enough to do everything.

 

There was debate on the propriety or otherwise of the Lekki-Ikoyi bridge judgement too, but that’s gist for another blog post.

How the New Law Affects the Lagosian Smoker

cigarette smoking

The Lagos State House of Assembly has forwarded a bill for the Governor’s assent, to regulate smoking in public places. Coincidentally, the Governor is said to be a nicotine man himself but, of course, this is not expected to have any bearing on the bill becoming law. If you’re a smoker and live in Lagos, here are some of the things you need to be aware of.

What is Smoking?

The Law defines smoking as –

  • the carrying or holding of any lighted pipe, cigar, cigarette of any kind (think electronic), or any other lighted smoking equipment (think hookah);
  • the lighting, inhaling or exhaling  of smoke from a pipe, cigar or cigarette of any kind; or
  • being in possession of any other lit substance in a form in which it could be smoked.

Smoking is prohibited in all public places as from the commencement of the law, and such places shall be known as No Smoking Areas

What is a Public Place?

Deep breath…

“Public Place” means –

  • Libraries, Museums, Galleries, Public Toilets, Hospitals, Creches, Nurseries, Day Care Centres, Kindergartens, Nursery/Primary/Secondary Schools, Public Telephone Kiosk or Call Centres, Public Transportation Vehicles, Private Vehicles which have more than one person inside, School buses, restaurants, Cinemas, Theatres, Concert Halls, Conference Centres, Exhibition Halls, Shopping Centres, Retails Shops, Factories and other non-domestic premises in which one or more persons work, Work premises, Lifts, Common Parts of Plats and Communal accommodation, any structure that is enclosed or substantially enclosed and is open to the public.

Exhale….

Smoker Silhouette

That’s right. Your car becomes a public place once you’re carrying a passenger.

“Public Places” also includes tertiary institutions, bars and nightclubs and hotels.

You are however free to smoke on streets, roads, highways, etc.

What is the duty of the Owner/Occupier of a Public Place?

  • Ensure that “No Smoking” signs are displayed conspicuously at each entrance and in prominent locations throughout the premises;
  • Ensure that all No Smoking Areas are fixed with smoke detectors;
  • Ensure that smoking outside the premises does not occur within 10 metres of the entrance of the premises;
  • Cause a person smoking in a No Smoking Area to stop smoking

1194984910238730787no_smoking_sign_domas_jo_01.svg.med

However, a section not exceeding 10% of the premises in tertiary institutions, bars, nightclubs and hotels may be designated as a “Smoking Area”.

 

What’s the Punishment?

  • Smoking Contrary to Provisions of the Law: N10,000 – N15,000 fine, or 1 – 3 months imprisonment, or both, or other non-custodial punishment the Judge may deem fit.
  • Owner/Occupier Default in Putting Signs Up/Installing Smoke Detectors/Stop People Smoking From Smoking:  N100,000 fine, or 6 months imprisonment or both, or other non-custodial punishment the Judge may deem fit.
  • If Owner/Occupier is a Corporate: Directors, Managers, Partners, Secretary or other person in Management personally liable to N250,000 each.
  • Repeat offenders liable to N100,000 fine, or 6 months imprisonment, or both, or such other non-custodial punishment the Judge may deem fit.

What Else?

Smoking in the presence of a child under the age of 18 in such a way that exposes the child to any form of smoke or in any other way injurious to the child, makes the offender liable on conviction to a N15,000 fine or 1 month in prison or other non-custodial punishment the Judge may deem fit. Repeat offender liable to N100,000 fine or 1 year in prison, or both.

Who are the Enforcers?

LASEPA – the Lagos State Environmental Protection Agency. Hopefully, this means the police can’t go round sneaking up on people to extort them, but we’ll see.

 

UPDATE: Governor Fashola signed the bill into law on Monday, 17th February 2014.

The APC-nPDP “Merger”: 5 Things

Although it’s a bit of a misnomer, as the “New PDP” neither ever acquired a distinct corporate personality nor was recognised as an actual political party, but a “merger” with the All Progressives Congress (APC) was announced today. As the news spread on Twitter, a hitherto latent pragmatism also spread with it.  Suspicions about the leanings and probity credentials of the APC leaders gave way to acceptance that Nigeria isn’t yet ripe enough to be led by a party of saints. There was palpable excitement at the notion that a party that didn’t exist a year ago now has 18 governors (and numerous federal legislators) in its fold. What are the implications of this merger, though? Here are a few naïve thoughts from my de-tribalised, de-politicised, de-everythinged mind

1. An Epic Clash Awaits in 2014/15

Forget for a second, if you will, about the potential presidential candidates. Lick your chomps instead at the prospect of the mother of all muscle-flexing between Federal and State might. Incumbents typically do not lose elections in Africa. In Nigeria, the ruling PDP’s candidate has won every presidential election since our then (and still?) nascent democracy was born in 1999. The PDP has wielded control over the fabled “machinery” of elections since then. However, it was overwhelmingly the largest party in the past and its majority has now been halved. Federal Machinery is no more than an agglutination of Municipal Machineries. With Municipal (i.e. State) Machinery no longer aligned with Federal purpose the outcome may remain unknown for now, but it is sure that the jostling will be the busiest, rowdiest, most legendary election campaign (and spending, let’s be honest) that us 45’s and under have ever seen.

2. Shine Ya Eye

My twitter bio has been updated, to indicate my availability to provide electioneering services that cater to the vanities of elite Nigeria. I am not a ballot-stuffer and I have never brandished a weapon against a fellow human in all my life. To be honest, I want nothing to do with that side of our peculiar electoral process. However, I can do and coordinate the fancy stuff that we, the electoral minority, like. After all, a credible campaign consists of serving the illiterate masses empty platitudes and attempting to beguile the elite with concrete policy. If the epic spending predicted in point 1 above proves true, then there is going to be a big “mahkate” for consultants. Get your consultancy on.

3. Jagabanism is Next to Progressivenessism

Slate the Jagaban Borgu all you like but dismiss him at your own peril. This dismissiveness I speak of is not just in the context of the opposition parties (as the political calculations suggest a South-Westerner is unlikely to be a popular presidential candidate for another 20 years or so) but even with the APC aficionados. Sure, he is building a family dynasty, with the good lady senator senating and the Iyaloja General doing whatever it is Iyalojas do, but perhaps the Tinubus will be the Kennedys or the Bushes of Yorubaland – with due apologies to FFK. With the opinion most people express about him online, I think, given his astute succession planning in Lagos State, it is either he gets an unduly bad rap or Governor Fashola simply is not the saint we imagine him to be. Lagos has progressed unquestionably under their watch however, so it is clear that the man knows a thing or two about developmental spending.

4. Dry Bones Will Live Again

It was said recently, citing sources from within the Economic and Financial Crimes Commission, that the reason for its poor record of enforcement recently was  a lack of funds. No money to chase stealers of money; the sad irony.  We can rest assured, however, that this hitherto missing money or a good Executive substitute for it will be delivered to the EFCC and they will begin to pursue their statutory mandate with renewed vigour and unprecedented fervour. That the scope of their sights is set on members of the burgeoning APC will be a minor footnote in the quest to kick corruption out of government. Never mind the fact that the N255m armoured car scandal refuses to go away, even with the feeble Wag-The-Dog tactics of an attack on an empty ministerial car by unknown gunmen. But I digress.

5. Plus Ca Change…

Asari Dokubo and co will no doubt, in the wake of the moves to unseat their “Jesus Christ on earth”, remind us that it is Niger Delta oil that is running through all our veins and that removing the incumbent president would be akin to ripping each of our hearts out of our bodies. It will be of no consequence, should this president be removed by a popular vote. It is “their turn”. Then, as elections draw closer, and the president begins to lie down before men of God for prayers, religion will also join tribalism as an honoured guest at the electoral feast. General Buhari, did not lie prostrate before the archbishop of Canterbury during his recent visit, so GEJ is well ahead in the picture polls. Pictures from the Jerusalem walkabout will resurface and Buhari will have to defend why he contracted the Mossad to abduct Umaru Dikko. Allegedly. Then the president will reduce the barriers for accessing the Nollywood World Bank Fund. So those ones will come out and act and sing for him again. Then North will be awash with “Sai Buhari” posters. Then the polity will be unbelievably heated up, in spite of the tepid warnings from the presidency…

Can Fashola Deport Non-Lagosian Nigerians?

“Gentrification” – the transformation of a run-down neighbourhood into a more prosperous one – is a word that one comes across much more frequently these days, in discussions about the government of Lagos State. While the state government, under the leadership of Governor Fashola, regularly receives plaudits for its approach to infrastructural development and the restoration of law and order, it seems that the side-effect is that Lagos is no country for broke(n) men.

In addition to banning commercial motorcycles (“okada”), rickshaws (“Keke Marwa”) and destitute persons from many parts of Lagos, the government has gone further on least 2 occasions to barrack some of these people into buses and forcibly transport them to other parts of the country. The most recent deportation/repatriation took place on the 24th of July 2013, with the “dumping” of 72 persons forcibly transported from Lagos at the Iweka Bridge, Onitsha. Naturally, the reactions have been of deep concern and outrage.

Governor Fashola’s Special Adviser on Youth & Social Development, Dr. Enitan Dolapo Badru, has gone on record in defence of the administration to claim, amongst other things, that the operation was not a repatriation, but the facilitation of a reunion between the destitute persons and their families. Apart from the confirmation that

“…at least 1,708 beggars and destitute have been expelled from Lagos to their various States and countries since January 2013, in government’s bid to rid the streets of beggars and the mentally challenged … the international standard requires the State to reunite them with their families…The end result is to reunite them back with their families. We are not repatriating them out of Lagos, we are reuniting them with their families because once we rescue them, we cannot as a government, hold a child under the age of 18 in custody without parental or guardian’s consent. We found out that a lot of children on the streets of Lagos come from outside the state thinking that Lagos is an Eldorado. It is unfortunate that many of them are underage and very vulnerable because they can be introduced to so many vices.”

“When we rescue them, we try as much as possible to carry out social investigation to know where they actually come from and why they absconded in the first place. And this takes time, because most of them don’t usually tell the truth since they don’t want to go back home. Once we have them in our custody, we must take a Court Order to keep them since the law provides for that and we cannot keep them indefinitely, so we still need to send them back to their parents. And our practice is to get in touch with the social welfare services of their respective states, which would in turn get in touch with the families.

“In the last one year, a total number of 3,114 beggars, destitute and mentally-challenged have been rescued in day and night operations and 2,695 were taken to the Rehabilitation and Training Centre, Owutu, Ikorodu, where the state government has made provisions for facilities to help in turning their lives around, while the mentally-unstable are given medical attention.”

It is necessary to quote him as extensively as done here because of the implications and ramifications of what the government of Lagos State is doing here.

The SA appears to be implying that only those under the age of 18 are carted away on these family reunion projects, the reason being that Lagos State cannot indefinitely hold minors in its custody without parental consent. His statement implies further that the mentally infirm are not repatriated but looked after in state-run facilities. If this is the case, the constitution would appear to justify the government of Lagos State.

Section 35(1) of the 1999 constitution provides that “[E]very person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law: …(d) in the case of a person who has not attained the age of eighteen years, for the purpose of his education or welfare; (e) in the case of a person suffering from infections or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the community…”

What this means is that while everyone is entitled to personal liberty, government is allowed to deprive under-18s and the mentally challenged of this liberty, for the stated purposes.

However, it is doubtful that only under-18s are deported, given the statements that have been made by some of the Iweka 72 and the fact that none of the political leaders of that geopolitical zone has commented on the deportees being children. And, in any event, that section of the constitution does not justify forcible removal from Lagos.

There is also the question of the basis on which the government determines that these minors have parents and whether it repatriates such people regardless of whether or not they are orphans. What measures does it take to ensure that minors are actually reunited with their parents rather than merely exchanging Carter Bridge for Upper Iweka Bridge? If indeed, the government of Lagos State merely dumped 72 minors at Iweka Bridge, has it not breached its obligation of security and social welfare to these minors, as guaranteed by Section 14(2)(b) of the constitution?

Furthermore, if the government of Lagos State is sifting through destitute persons within its territory, on the basis of states of origin, to determine who would be entitled to social welfare, there is a clear question of whether or not such a process is discriminatory. I would in fact argue that it is discriminatory, given that it is highly unlikely that these repatriated/deported persons were actually reunited with any family as the government would have us believe.

Section 42(1) of the constitution says “A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person – (a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex religions or political opinions are not made subject;…”

Section 41(1) of the constitution states that “[E]very citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen shall be expelled from Nigeria or refused entry thereto or exit therefrom.

Taking these two sections of the constitution together, a citizen of Nigeria is entitled to move freely within Nigeria and live in any location of his choice and has the right not to be discriminated against on the basis of his place of origin.

Indeed, there would be implications for the “indivisibility” of Nigeria (Section 2(1) of the constitution) if every state began deciding who would be entitled to its services on the basis of their places of origin.

I would suggest that the government of Lagos State reevaluate its strategy for the gentrification of the mega city. The mega city, no matter how mega or giga or even tetra it may become, will only be a city within a state, within a federation. Unless, of course, the deportations are a declaration of secession…and we have been down that road before, have we not?

A Judicious Judiciary

Professor Charles Debatista, in his Carriage of Goods and International Trade classes, would always remind us that the wheel on which all trade, domestic and international, turns is the principle of pacta sunt servanda – that promises must be kept. If I do not have the confidence that you will uphold your end of a bargain, or that there is a reasonably quick recourse for me in the event of your default, there is no logical reason why I should enter into a commercial relationship with you.

One of the very first questions intending international investors or their lawyers ask in pre-incorporation due diligence is “Do Nigerian courts uphold agreements freely entered into by Nigerians with non-Nigerian parties?” Typically, the question that would follow is “If yes, how long does it take, on the average, for lawsuits for the enforcement of contracts to be concluded?” It was very easy then, to casually respond that the average lifespan of a suit at the court of first instance is 3-5 years, with appeals to the Court of Appeal and the Supreme Court lasting another 2-3 years each, on the average. The math is hard to ignore, however. You could very easily be in court for 10 years trying to get someone to keep his end of a bargain. And even if you had 10 years to fritter away, there are no guarantees that you would be able to afford to keep paying your lawyer for that long.

The negative consequences of a judiciary with this speed of enforcing contracts are quite a few. I have previously retold here how an employer dared his expatriate employees to go to court to claim the 6 months’ arrears of salary he was owing them. Even though they had fixed contracts for 2 years, on the basis of which these workers relocated to Nigeria, this employer called their bluff. Unable to afford the cost or time of a trial, one by one they slunk back to their respective countries. However, this was even on a relatively small scale. An investor bringing in, say, $300million dollars wants to know how quickly he can cut or recoup his losses in the event that his Nigerian partners default on their obligations.

In addition to anecdotal evidence of the consequences of a slightly sluggish judiciary, empirical studies, as reported here (Doing Business – Enforcing Contracts 2013) and here, show that a judiciary that resolves commercial disputes in a timely and cost efficient manner is crucial to a healthy economy. The studies suggest that “countries with slower judicial systems, on the average, have less bank financing for new investment” and that “financial intermediates are likely to reduce the amount of lending if the ability to collect on debts is no longer given or obtaining control over property as collateral to secure loans is denied.” The latter part of the preceding sentence is evident here in Nigeria, where the consensus amongst small business owners is that it is extremely difficult to obtain affordable finance or credit from banks for their businesses.

Table culled from the Doing Business Report

Speeding up the judicial process will also be critical to resolving at least 2 current front-burner issues – corruption in government and the lack of respect for the Rule of Law. The chairman of the Economic and Financial Crimes Commission was recently reported to have expressed frustration with the ability of high profile (political/government) suspects to delay their trials. His lack of faith in the country’s judiciary is shared by the millions who would rather exact summary justice on suspected robbers or rapists than hand them over to the authorities to be investigated and charged.

Nigeria is ranked 87th out of 185 countries in ease of enforcing contracts and 8th most improved since 2005

Speedier prosecutions would lead to many positives. Wrongly accused persons would no longer waste half their lives away in police and prison cells awaiting trial. Public officials would be deterred from stealing public funds because there would be less time to manipulate (or be perceived to be manipulating the system).  The confidence of citizens in the judiciary would also be restored.

So how do we accelerate the dispensation of justice? Let us take a look at Singapore, ranked the easiest country in the world in which to enforce contracts (download data here and sort in descending order) and, coincidentally, also the best country for doing business. In this speech by one of its Justices of the Supreme Court in 2009, the history of the country’s judicial system is recounted, along with the steps taken to reform it and expedite the resolution of civil cases. To summarise, Singapore did the following:

  • Appointed more judges
  • Changed rules of court to empower courts to be more proactive in the management of cases
  • Denied adjournments
  • Gave hearing dates to moribund cases
  • Expanded jurisdiction of subordinate courts (e.g., in the Nigerian context, magistrate and customary courts) in terms of subject matter and size of monetary claims
  • Set and maintained target timelines and benchmarks, for example –
    • Seek to dispose of all cases within 18 months of filing
    • Seek to dispose of more cases than are filed every year, disposing of a number equivalent to 104% of cases filed in 2007)

In Nigeria, Lagos State is easily at the forefront of judicial reform, especially with the appointment of judges and the expansion of the jurisdiction of subordinate courts. Lagos State judges are also mandated by current civil procedure rules to encourage parties to a dispute to settle prior to a full hearing. However, courts in Lagos are still very congested, indicating that there still might not be enough judges. We are provided with an idea of what would be an acceptable ratio of judges to the population in this article on litigation and delays in the Indian judiciary. The article reports that as far back as 1987, the country’s Law Commission had recommended a ratio of 107 judges per million citizens. It is instructive that while India was planning (in 1987) to achieve this target by 2000, the USA had already achieved it in 1981. Another piece, also from India, compares India’s judges per 100,000 to the ratio in “well-administered” countries. The information is reproduced in the table below.

Country No. of Judges/100,000
USA 11
Sweden 13
China 17
Belgium 23
Germany 25
Slovenia 39
India 1.2

What, then, is the current ratio of judges to Nigerian citizens? I spent over an hour trawling through various judiciary websites and even the site of the National Statistics Bureau, with no luck finding out the number of judges (including customary court judges and magistrates) that we currently have in Nigeria. But, making assumptions, on the premises explained below, I reckon we have about 4,000 -5,000 “judges” at the very maximum.

The Supreme Court currently has fewer than 15 justices out of a constitutional maximum of 21 but let us assume a full court. There are currently roughly 70 justices of the court of the court of appeal but let us assume a bloated estimate of 100 judges for both courts. There are also roughly 70 judges of the Federal High Court. Each state has a State High Court. If we use Lagos as a benchmark, with roughly 50 judges per State (an unreasonably high estimate given that there will be several States nowhere near as busy as Lagos, but you’ll soon see where I’m going with this), that is 1850 state High Court judges for all the states and Abuja. This gives a total figure of 2,020 judges. If we then doubled the figure to accommodate judges of the National Industrial Court, judges of the customary court and the customary court of appeal, as well as magistrates, we would have an estimate of roughly 4,000. Thus, even if we assumed a figure of 5,000 judges for a population of 160 million people, the ratio is 31 judges per million individuals (or 3.1 per 100,000), approximately a third of the Indian and American ‘optimum’. The argument for more judges however, needs to be counter-balanced with the need to ensure that the integrity (not in the context of ‘honesty’ – see speech here where the former Chief Judge of Nigeria remarks that expanding the size of the Court of Appeal has led to conflicting judgements) of the system isn’t compromised or lost.

I realise that the references from which my conclusions concerning the judiciary have been drawn were primarily focused on civil proceedings but I see no reason why the same measures cannot be applied to the congestion in the criminal justice system as well. I realise too, however, that the criminal justice system also includes the police. On police reforms, I will again refer readers to the most comprehensive discussion of which I’m aware on the subject, here.

The government has taken many measures to convince foreign investors that Nigeria is a good destination for their money. The Minister of Trade has introduced accelerated the process for obtaining business visas, while the Minister of Aviation also recently announced an investment road-show. The government can give as many assurances as it wishes but it is clear that reducing the speed at which the wheels of the judiciary roll will be one of the most significant steps that will be taken.