Monday, June 30, 2008


Right to freedom of assembly also imposes responsibility on citizens, says Ogala

Mr. Babatunde Ogala is the chairman Lagos State House of Assembly Committee on Judiciary.
A graduate of law form the University of Jos and a former General Counsel and Legal Adviser to The Guardian Press Limited, Ogala granted this interview to The Guardian Senior Judicial Correspondent Ibe Uwaleke in which he bared his mind over the recent judgment of the Court of Appeal quashing the Public order Act which entitled the Nigeria Police to grant permit to citizens before they can hold peaceful rallies or processions.

To him the verdict is a welcome development which is commendable and therefore he enjoins the police to respect the order as it is the law as of date.
But he warns that though citizens now have fight to associate and hold protests it is not an absolute freedom because such freedom imposes duties and responsibilities on those who exercise it.

It is therefore his view that while exercising such freedom one must not infringe on the right of others.

He also hints that Lagos State will soon enact a law prohibiting all social and religious activities on highways, roads and sidewalks that inhibit movement of people.

How will you describe the judgment of the Court of Appeal quashing the Public Order Act (POA)?

Very, very, laudable, it is a laudable. It is a very good judgment. It is one that has enshrined the principle of fundamental rights to freedom of association and expression. Over time this has been abused. My only prayer and hope is that this government that advocates the rule of law should impress it on the relevant agency especially the police to indeed respect the order of court.
Before now ,a Federal High Court had declared the Act illegal. This is a product of appeal of a Federal High Order which declared the said Public Order Act illegal.But notwithstanding the order of a Federal High Court, the Police insisted that people should seek permit before they can hold rallies and they have continuously barred people from rallies until this judgment of the Court of Appeal settled the doubts arising from the said Act.
The police despite the order of the Federal High Court was still attempting to enforce the Act that was declared illegal by the high court.
Lets hope that with the stand of the new government, the Attorney General of the Federation (AGF) will ensure that the order is obeyed this time around.
Do you foresee the situation where either the police or the AFG will go on appeal over the judgment of the court of Appeal?.

I do not think this present Attorney General, Mr. Michael Aondoakaa (SAN) will appeal against the judgment, judging from his pronouncement and posture. Even if the police or the AGF want to go on appeal,, they both must first obey the order of the appellate court.

Now that the second highest court in the land has granted Nigerians and indeed civil society groups freedom to associate and hold rallies. Is there any limited to freedom of association and expression?.
Your freedom or right stops where your duties begin. Of course there is a limitation to freedom. The fact that you are entitled to freedom of association, does not mean you now have to indulge in illegal act, So there is a limit to our action particularly as there are rules and legislations guiding our behaviors.
You cannot say because you now have freedom of association, you go to the highway to assemble because you feel there is no limit. Please bear in mind that there is limitation to freedom. Also bear in mind that as you have a right so you have a duty and obligation.

Hiow do you advise that rallies and processions should be carried out?
Rallies and protests or processions should follow laid down procedure. I always said that there is a limit to everything. You cannot wake up one morning gather a thousand people and take over Ikorodu (Lagos) Road just because you have been granted freedom.
You have the right to protest as long as you do not infringe on the right and passage of other people bearing in mind also that they have to exercise their own freedom to exist as individuals.
It is also wrong while exercising your right to protest or associate to stop traffic flow or stop people from getting to their offices or houses.
The court has granted freedom
Oh! Yes. Now people can have rallies or processions. But this must be done within the ambit and confines of the law. We must not in exercising our rights infringe on other people's right.

Do you have any bill at the Lagos State House of Assembly or an already passed law which guarantees free movement and association in Lagos without any molestation?

There are laws for general application. What the constitution guaranteed is applicable across the Federation .What the criminal law and the various legislation have for freedom of citizens is enough to guarantee protection of citizens wherever they are in Nigeria.

Also at the State House of Assembly, we have a committee on human rights, which is used to assist to protect the right of the citizens in the state.
Only yesterday (Thursday) we commemorated the Human Rights Day with a Human Rights lecture.
So Lagos State Assembly takes seriously the issue of human rights. We comment when appropriate including imposing sanctions within our limited powers on issues that bother on infringement of human rights.
That is the reason the committee on Human Rights of the Lagos State House of Assembly and the unit on Human Rights of the State Ministry of Justice are there.
Don't forget that there is the Office of the Public Defender and the Citizens Mediation Centre, all created for the rights of citizens. This tells you that the state government values the issue of human rights.

When we talk about freedom of movement and association should it include inhibitions introduced by certain governments to curtail such rights by forcing people to observe certain hours on particular days for Environmental Clean-up exercise... Is this not a form of infringement?

Like I said, the issues of rights is subject to laws. You cannot say because or you have the human right for freedom of movement, you just wake up of one morning and walk into my sitting room and claimed you are expressing your freedom of movement. No there are limitations. The freedom is guided by laws so if laws are made to keep our cities clean, these are substantive laws of the country. The laws did not say you cannot move around, but only stipulated the periods of no movement. I don't see this as an infringement. If the law guarantees you movement at any time of the day.

It is subject to the laws not infringing to the laws of the land you cannot say because you have freedom of movement, you now think that my sitting-room is part of where you can move through without any permission. Then you are infringing on my right.

If a rally or procession blocks or disturbs an access road or the flow of traffic is it an infringement on the rights of others entitled to use the access roads.
Of course it is an infringement of the freedom of movement of other people. Why should you block the road?
Whatever you want to advocate you have no right to disturb my right of movement.
Certainly this is not the way to implement the judgement of the Court of Appeal.

What of those who block streets, roads, and sideways for social parties or religious worshipers?
This is indeed an aberration. These are not what you see in any civilized environment.
I can confirm to you that there is a bill before theLagos State House of Assembly which intends to prohibit religious activities and all such gatherings on the highways and sideways.
The various religious bodies are doing it now.
I don't see why because I want to worship in a church or mosque then every other person must not move for the fact that the roads are completely blocked. Look at what is happening at Lagos-Ibadan Express Road when the various churches are holding their conventions.
It is wrong my religion is a personal thing to me
So Lagos State is trying to enact a law that will stop all social or religious activities on Lagos roads and sidewalks .
To do so is a criminal offence both for the organisers and invited guest.

So how do you advise the Nigerian Police on this issue of the quashing of the Public Order Act (POA) ?
Certainly the police should try and respect the order of the Court of Appeal This is not an advice, it is an obligation. They must respect it. That is the law of the land. I believe we are in a civilized environment and so whatever the police thinks is immaterial because the court's order is the law of the land as of date, and therefore must be enforced by respecting it.

Sunday, June 22, 2008



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Traditional worshippers want public holidayThe Lagos State House of Assembly is to hold a public hearing on the declaration of a public holiday to celebrate "Isese" - an African traditional religion. The House resolved to convene the hearing following a petition by the state chapter of the Association of the African Traditional Religion of Nigeria (AATREN).AATREN claimed that the government had not given traditional worshippers equal privileges with imported faiths and requested that Aug. 20 be declared work-free day annually to celebrate "Isese".The association also asked to be moved from the state ministry of Home Affairs and Culture to the ministry of Local Government and Chieftaincy Affairs for better treatment. It equally requested for budgetary allocations, which it claimed, was being enjoyed by both Christians and Muslims. The House Committee on Chieftaincy Affairs, headed by Mr Abayomi Sadiq, however, recommended that AATREN remained under Lagos State Council of Arts and Culture.The committee also recommended that the ministry of Home Affairs and Culture made budgetary provisions for AATREN, adding that the request for an Isese Day celebration on August 20 anually be granted. While debating the issue, some lawmakers argued that the state already had many public holidays and that an extra one would negatively affect the economy.Some others claimed that there were many deities whose activities and modes of worship were not transparent enough.Yet, some lawmakers suggested that "Isese" Day be harmonised with the Black Heritage Day -- an international cultural festival.Mr Babatunde Ogala, representing Ikeja 1 constituency, called for documentation of information on traditional worship groups to make their beliefs and activities more popular.He submitted that attention should be given to research on deities to promote the nation's cultural heritage. Majority of the lawmakers, however, did not support budgetary allocation to AATREN.Speaker Adeyemi Ikuforiji held that Aug. 20 had no historical significance in the state, saying that a public hearing on the matter would give the state residents the opportunity to express their views.


‘Our Grouse With FG Over Lagos Land’02.11.2008

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Hon. Babatunde Ogala was elected into the Lagos State House of Assembly in April, 2007 to represent Ikeja Constituency 1. Ogala who is Chairman, House Committee on Judiciary, in a chat with JUDE IGBANOI recently, explained the work of his committee amongst other issues and what sets the Class of ’86 of the Nigerian Law School apart
aYou apparently have abandoned the wig and gown for the agbada by leaving active legal practice for politics. What informed this switch?Let me quickly say that I see myself as a lawyer in politics. I want that to be distinguished from being a politician. I am a lawyer in politics. What informed my decision to participate in politics is simply a conviction that if wise men stay away, foolish men will make foolish laws and the wise must obey. One has observed that over time we sit down, analyse, condemn and criticise. We see politics as being dirty and I have asked the question: if politics is indeed dirty and we clean people don’t get involved, who then will clean it up? It will continue to be dirty! Having come from a background of pro-democracy struggle, especially in the Abacha era, I saw it appropriate to contribute my little quota to the survival of the democracy we fought so hard to attain. By and large, I also recognised that the constituency which I represent has a good blend of elites who also need a voice. A combination of these informed my desire to make my humble contribution.One of the complaints we often hear is that politicians have the tendency of going on their knees to canvass for votes from the electorate only to distance themselves from their constituents after getting into office. From your experience, how do you touch base with members of your constituency?I say that from my own little experience, I do not think this is totally true. We need to define who the constituents are. I for one, have a Constituency Office at 22, Kudirat Abiola Way and I have staff that man that office. I cannot see every member of my constituency. During my campaigns I did not see every member of my constituency. But I got the messages across to everyone. Don’t forget that you have elected the man for a purpose. He must also have the time to the work. We have to designate time for everything. I must attend plenary sessions. I must attend meetings. There is a lot of committee work to do. When people make this complaint of losing touch, it bothers me. We have constituency offices. We have a party structure and these are communications networks open to air complaints. So, when people say, ‘he doesn’t pick my calls’, you’ll not call a law maker at 12 noon, when he should be in plenary session. You’ll not call him when he is at a committee session. What of when he is at meetings? But you often hear that expression, ‘he doesn’t pick his calls!’ Of course, since I got into office the volume of my calls has increased to well over 1000%. How people get my phone numbers I no longer know. But I am determined not to change numbers, because there is no reason for it. So, I do not think it is totally true. But you know people like to call a dog a bad name in order to hang it. A lot of people, the moment you get into office, now claim to be your friends. I now made a decision to distinguish between my friends as Babatunde Ogala and friends of the office. You are Chairman of the Committee on Judiciary at the Lagos State House of Assembly. You are also a lawyer of many decades at the Bar. What are the functions of your Committee and what challenges have you faced so far chairing that committee?The functions of the Committee on Judiciary are well spelt out in the Rules of the House. It says, ‘The Committee shall cover annual budget estimates, administration of justice and judicial matters generally, constitutional matters, Lagos State Judiciary, State Courts and Judges, commissions and tribunals of enquiry, claims against the state, review and administration of estates and trustees, relationship with the Judicial Service Commission, Ministry of Justice, Committee on the Prerogative of Mercy, codification of state laws, etc.’ But I must say that our function includes the relationship of the state with law enforcement agencies including the holding agencies like the prisons. So, it’s a committee with very wide jurisdiction and powers. As for the challenges, they include getting the Executive and Judiciary to understand the commitments of the Committee. I had to reposition the committee when I got here. I come from a position where I recognise that there are a lot of expectations from me, especially from my colleagues at the Bar. When I was made Chairman of the Committee on Judiciary everybody said, ‘Oh, he is our own. He is a Barman!’ Of course, you know that also puts additional pressure on one in terms of expectations. But I have tried my best so far. We have tried our best to be active partners with the Executive and the Judiciary in the administration of justice in Lagos State. Let me say with all sense of modesty that we have been committed to the justice sector reform programme in the state. I have to come to realise that where I am now as a lawmaker is only a passing phase. My primary constituency is the legal profession where I will return to. My being a legal practitioner has become as consistent as my name; that I cannot wish away. Of course, the mega-courts that are being built have come with appropriation and it’s the Judiciary Committee that has to facilitate and make the House understand the need for all that. It involves a lot of lobbying and convincing our colleagues because we are talking about competing demands for scarce resources. I make bold to say that in the last budget exercise, judiciary budget was passed even without questions. The Ministry of Justice got its law on the Office of Public Defender in record time! I am committed to having a proactive committee and part of my plan is to have a totality of the House review of all the laws that have been passed in the past eight years. I have done a paper on that. We intend to have stakeholders come together on this, when the funds are available. Lagos State unarguably has the busiest Judiciary in Nigeria.In Africa!There is also the fact that Lagos is cosmopolitan and a melting-pot for various ethnic groups. This would naturally pose many challenges to criminal justice administration. Are there specific plans to review the Criminal Procedure Rules? They did for Civil Procedure.Like I said there are various committees at work in the state. I am sure you are aware that there is a committee that is reviewing the Magistrate Courts Law. There is another that is working on the Customary Courts. Then there is the committee that has done a review of the Criminal Procedure Act of Lagos State. But we must realise that we have the problem of having a federal Nigeria because the states have no control over the holding facilities like the prisons. The enforcement agencies, the state has no control over them. These are some of the contradictions in the system. If the state had its prisons, perhaps there can be a different picture. We have done a lot of work on the Criminal Procedure Code for Lagos State. Currently, the state government partners with the police to address the issue of crime. I need not say how much the state has done in assisting the police with vehicles and other logistics. The state cannot buy the police their uniforms. They have said no to this. We cannot buy them arms and ammunition. But we have tried in other areas. Then what is your take on State Police?Honestly, it’s just the solution we need. People have said that it would be misused and could be used for political victimisation. Honestly, I am of the view that let us make our mistakes and we’ll eventually get there. No responsible administration would want to misuse the state police. We can’t run away from state police. What is happening in some states now? In some of our sister states, thugs are being used to maintain law and order. State police cannot be as bad as that. They call them enforcement officers! The merit in state policing is that you cannot know my neigbour as well as I. They have talked about community policing, but what is the fate today? Abandoned! You call a state Governor the Chief Security Officer of the state. He has no control over the police, he has no control over the lowest ranking policemen. He can come to work in the morning and be told the Commissioner of Police has been transferred. Recently, the Aid-De-Camp of a state Governor was recalled behind him! It happened to Governor (Bola) Tinubu here in Lagos, where the man who was the head of Rapid Response Squad was suddenly taken away overnight. We had three Commissioners of Police within one week! If we have a state police all these would be taken care of. Who says both state and federal police cannot co-exist? I am an advocate of true federalism. The cheering news we just heard from the Lagos Judiciary is the introduction of the Fast Track Court system which came as a pleasant surprise to most legal practitioners and litigants. Does initiative have the support of your committee?That largely is for the Judiciary. I am sure structures have been put in place for its success. To the extent that it can work in Ghana and some other jurisdictions, I have no doubt in my mind that with the right attitude it can work here. Before the Chief Judge decided to introduce the Fast Track Court system he must have determined all that is necessary to make it work. I am absolutely confident that it can work here. One major feature that characterised the last political dispensation in Nigeria was the constant bickering between the Executive and the Legislature. It made governance very difficult. There were occasions where Governors and the Legislators were at daggers drawn points over inconsequential issues. It was also the same story at the federal level basically. What has been the experience in Lagos State? How would you describe the working relationship between the Executive and the Legislature?We have been very lucky in Lagos State to have had responsible leadership. Eight years past, Asiwaju Bola Ahmed Tinubu had a perfect and harmonious relationship with the Legislature. So far in over seven months here, the administration of Babatunde Fashola SAN has had a perfect working relationship with this House. This is an administration that has had constant dialogue with the House and has ensured that the House is carried along on its decisions. He has shown respect for then rule of law. Look at the National Assembly where there was constant bickering in the last administration. The reason for that was quite obvious. We had a President who did not believe anybody else had powers, either constitutionally or otherwise to check his activities. He did not believe in oversight, position or indeed separation of powers. In such circumstance you cannot but have constant bickering. Of course we know in some states legislatures, there were other political considerations which were not altruistic. These led to these constant bickering and indeed led to some very shameful and painful impeachment exercises, although most of it was orchestrated by the irresponsible leadership at the centre at the time. But in Lagos I must tell you that in the past seven months that I have been here, even before the eight years before I came here, you cannot point to any disagreement between the Executive and the Legislature. Over the past few years, there has been the constant face-off between the Lagos State Government and the Federal Government over the issue of the true ownership of land in the state. As Lagos embarks on its ambitious mega-city project, the issue has come to the fore again. What is your take on this?In the past eight years, this has thrown up legal issues and it will continue to be so. But it’s all part of our constitutional democratic development. The issue of which level of government has control over urban planning is part of our constitutional development; so also this issue of land. It is clear that all land in the state is vested in the state government. If you recall in the Second Republic when the UPN government wanted to built low-cost houses in the states, it sought lands from the various state governments. That is the reality and that is what ought to be. But because of the long military incursion into our body polity a lot of these democratic values were gradually lost. That is why I would give kudos to the Lagos State Government that it has fought on the part of the Constitution. In all the battles Lagos has come out uncrated, like in the issue of local government funds. If you recall, the military even made a law that says any land that is 100 meters from the waterfront belongs to the Federal Government. That was subsequently overturned by a court. That could have taken away most of Lagos State, because Lagos is water!The only body that can regulate urban and regional planning in a state is the state government. It is the body that is constitutionally empowered to do so. You heard recently that Federal Government properties were being sold. Yet the Land Use Act is clear and unequivocal on it. When land is acquired for overriding public interest and when there is no longer need for that purpose you revert to the original owners. In this case, our Federal Government acquired land, built the Trade Fair Complex for overriding public purpose, built Tafawa Balewa Square, 1004 and Federal Government properties in Ikoyi and Ikeja GRA. One day someone just wakes up and decides that they are going to sell all that to individuals, without reverting to the original owner. All land in a state is vested in the state. That is what the Constitution says. So, the Lagos State Government has been fighting on the part of the law. What the Federal Government is trying to do is an aberration. The Federal Government abandoned Lagos for eight years. You know what the state of Apongbon was, Ozumba Mbadiwe and many other roads. Can you imagine, the Lagos State Government woke up one morning and found Ikorodu Road being dug up by a company for the laying of pipes. The Federal Government awarded that contract without consultation with the state government! These are the kinds of situations we are complaining about. Look at the issue of Value Added Tax (VAT). It has to be challenged. Where does the Federal Government derive the power to collect VAT? In the Constitution, it is under the Residual List, it is vested in the state. There is nowhere in the world where the Federal Government collects State Tax, which is what VAT is. Then you collect VAT from a state that permits alcohol and give it to a state that forbids alcohol and does not reject the money that comes from it. It is inequitable! These are constitutional issues. I can tell you Lagos State will challenge the issue of VAT. Let the Supreme Court pronounce on it. As a lawyer, what is your take on the case of Atiku Abubakar and INEC concerning interrogatories? Professor Maurice Iwu’s response has been seen as some as perjury. He claimed that he didn’t know the company that printed the ballot papers, and many other things came up.For me, Professor Maurice Iwu has shown himself as an irresponsible umpire. He has shown himself as an irresponsible person. How can an Electoral Officer, a Returning Officer say in the interrogatories that he awarded the contract of such very sensitive documents to a company, but he does not know if that company subsequently awarded to another foreign company? That is the height of irresponsibility! Some are saying, ‘You printed in South Africa’, and he is saying he does not even know! He said, ‘I just awarded the contract to Security Printing and Minting.’ So, it could have been a printer in Somolu. It is sheer irresponsibility! I would ordinarily not want to comment on issues before the court, but I am really concerned about the morality in what the man is saying. Iwu is telling us he doesn’t even know where his ballot papers came from. The law says you must serialise these papers. Iwu said he did not serialise because the time was short. If the time was short, couldn’t he have moved the elections forward? This was the same man when he knew INEC had no such powers and the whole world told him so, he insisted on disqualifying some candidates, based on some cooked up, illogical and satanic indictments. He was playing a written script by the Obasanjo administration. That is also why I have no sympathy for Nuhu Ribadu who played the role of a hatchet-man in all of this. He got involved in politics and now they are sending him to Kuru to even go and purge himself and the press is making a lot of hue and cry over the issue. I am amazed! His promotion from Assistant Commissioner of Police to Assistant Inspector General of Police was not through due process. So, what is corruption? That was process abuse. He went through a corrupt system to be AIG. I wonder how you are comfortable with the police promoting you to AIG and yet they cannot send you on training? These are the illogical things we hear. So, Iwu was not a fit and proper person to have conducted a national election. I don’t want to comment on the outcome. The various tribunals are sitting on them and about five Governors have been removed all due to the irresponsibility of one man at great security, financial and human cost to the country. You are a member of the Class of ’86 of the Nigerian Law School and it has distinguished itself, with such a large output of Senior Advocates of Nigeria. What is it about the class that has set it apart?Yes, maybe by providence, we became the centennial set of the legal profession in Nigeria. We came out in the 100 years of the legal profession in Nigeria. But I commend my mates, Niyi Akintola SAN, Roland Otaru SAN, Chief J.K. Gadzama SAN, the Hon. Attorney General of the Federation, Aoandoakaa SAN and many others. It’s on record that we now have the highest number of SANs. I commend the initiative for the set to meet at every Bar Conference. It has become an annual event. Now, we have a set mailing list where we exchange e-mails with each other. The set is blessed and God reserved some of the very best in the legal profession in Nigeria to be called to the Bar in that year. It’s all providence. Some of the leading lawyers in this country today are members of that set. It’s a very young and humble set. Today, we about three Governors from the set, howbeit Celestine Omehia has lost his seat. It can only get better.


For Lagos Magistrates, Succour at LastBy Jude Igbanoi, 05.12.2008

The Lagos State Government has set the pace again in justice administration with the conclusion and submission of the report of the Fola Arthur-Worrey Committee on Magistracy and Justice Sector Administration. The Committee which was inaugurated on August 31, 2007, was mandated to critically examine what areas needed urgent intervention of government at the first level of justice administration in Lagos State. The 13-man committee swung into action immediately and through strenuous compilation of data from other jurisdictions, meticulous research and robust deliberations by members, the Committee concluded its work and came up with a detailed three volume report and recommendations to the government. Lagos State Attorney-General and Commissioner for Justice, Mr. Supo Shasore, SAN commended the efforts of the committee and spoke of his immense pride at being associated with the work of the committee. Introducing members of the Committee to Governor Babatunde Fashola, SAN, Committee Chairman, Mr. Fola Arthur-Worrey, explained that the report was divided into four parts covering Human Capital, Administration and Funding, Rules and Procedure and Implementation. The entire report he said, was reduced to ‘bite size implementable pieces.’Also, in his remarks, the Chief Judge of Lagos State, Augustine Adetula Alabi, had many words of praise for members of the committee. The CJ told the Governor that it had become absolutely difficult to administer and effective supervise the 144 Magistrate Courts in Lagos State. He commended the foresight of the Attorney-General and expressed optimism that if the recommendations of the committee are implemented, they would go a long way in solving the numerous problems associated with first level administration of justice in the state. The high point of the CJ’s remarks was his recommendation that a retired Judge of the Lagos High Court be appointed to supervise the Magistracy. This was understood to have received the blessing of the Governor who in fact suggested that at least five retired Judges be appointed to oversee the Magistracy. The Governor, receiving copies of the report from Arthur-Worrey, reiterated the crucial role of Magistrates in the administration of justice. He expressed optimism that the report would receive the utmost and urgent attention it deserved.The case dockets of Magistrates in Lagos State cannot be compared to any other state in Nigeria, with Magistrates having as many as 50 cases a day in their dockets. With the state government aggressively pursuing its programme of renovating and constructing new Magistrate court rooms and work nearing completion in six locations, there is no doubt that this crucial first level of justice administration would occupy its pride of place.Also present at the short but impressive ceremony were (Chief Mrs.) Bola Williams SAN, retired Justice Olorunnimbe, Babatunde Ogala, Chairman Judiciary Committee of the Lagos State House of Assembly, senior officials in the Ministry of Justice and members of the state’s Judicial Service Commission. Members of the Committee include the Chairman, Mr. Fola Arthur-Worrey, Chief R.O. Sadiq, Mr. Demola Sadik, Mrs. Oyindamola Ogala, Professor Bolaji Awosanoye, Mr. Deji Omotosho, Mrs. Toyin Bashorun, Mrs. Yetunde Pinheiro, Ms. Chuka Mbanefo, Mr. Teslim Animashaun, Mr. Femi Lijadu, with Mrs. Oyinkan Badejo-Okunsanya as Secretary and Iyabo Oshodi as Assistant Secretary.



Tuesday, April 29, 2008
Economic and Financial Crimes Commission and national development By Babatunde Ogala
BLACK'S Law Dictionary, 6th Edition, defines corruption as: "An act done with an intent to give some advantage inconsistent with official duty and the rights of others, the act of an official or fiduciary person who unlawfully and wrongfully uses his station or character to procure some benefits for himself or for another person, contrary to duty and the rights of others".
The Oxford Advanced Learner's Dictionary 6th Edition, also defines to be corrupt as: "The use of power to do dishonest or illegal things in return for money or to get an advantage; or the use of illegal or unfair methods, especially bribery, to gain advantage in business, politics, among others".
Corruption could, therefore, mean dishonest or illegal behaviour, especially of people in authority.
In Nigeria of today, corruption has become a behemoth and monster. There is large-scale corruption in the polity, which unfortunately, is perceived as a normal way of life. Corrupt practices are defended with self-seeking arguments, even by the well-informed including teachers, lawyers, politicians and youths. Corruption has reached an epidemic stage in both our public and private lives.
The incursion of the military into our politics took corruption to almost the state of an art and an acceptable way of life. Civil servants and leaders looted the public treasury impudently. Politicians, bankers, teachers, civil servants and other public office holders at various tiers of government made a serious business of treasury looting. Even student unionists joined in looting their union's funds.
The erstwhile President Olusegun Obasanjo in his inaugural speech of May 29, 1999, laid so much emphasis on the issue 'corruption as the greatest single bane of our society' and promised to tackle same with gusto.
The Economic and Financial Crimes Commission (EFCC) Act was subsequently enacted as a law of the country along with such anti-corruption legislation as the Independent Corrupt Practices and other Related Offences Commission (ICPC) Act. Before then, there have been several legislations on corrupt practices in our statute books.
Advance-Fee-Fraud and other Fraud Related Offences Act 1995, the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act 1994, as well as the Banks and Other Financial Institutions Act 1991 and Miscellaneous Offences Act are some previous legislation along with the Criminal and Penal Codes and several others embedded in various statutes.
The functions and powers of the EFCC are clearly spelt out in Part II of the Enabling Law; the Economic and Financial Crimes Commission (Establishment) Act (as amended). The powers and functions are defined in Sections 6 and 7 of the law.
The commission is, however, given very wide powers of investigation and prosecution of economic crimes in Nigeria, albeit subject to regulations and rules made for it by the Attorney-General of the Federation, further to Section 43 of the Act.
The major functions further to Part II in the enabling Act includes; but not limited to:
Enforcement and due administration of the provision of its enabling Act;
Power to investigate all financial crimes including advance-fee-fraud, money laundering, credit card fraud, contract scams, among others;
Adopting measures to identify, trace, freeze, confiscate, or seize proceeds derived from terrorist activities, economic and financial crimes related offences, or the property, the value of which correspond to such proceeds;
To facilitate rapid exchange of and technical information, as well as joint operations geared towards economic and financial crimes eradication;
Collaborating with other agencies both within and outside Nigeria in carrying out its functions;
Adopting measures to eradicate and prevent the commission of economic and financial crimes, including coordinated preventive techniques on the prevention of economic and financial crimes;
Determination of the extent of financial loss and such other losses by government, private individuals or organisations;
Dealing with matters connected with extradition, deportation and mutual legal or other assistance between Nigeria and any other country involving economic and financial crimes;
Collection of all reports relating to suspicious financial transactions, analysing and disseminating same to all relevant governments' agencies;
Maintaining liaison with the Office of the Attorney General of the Federation, Nigeria Customs Service, Immigration and Prison Service Boards, Central Bank of Nigeria, Nigerian Deposit Insurance Corporation, National Drug Law Enforcement Agency and such other financial supervisory institutions in the eradication of economic and financial crimes;
Carrying out and sustaining rigorous public enlightenment campaigns against financial crimes within and outside Nigeria;
Any other such activities as are necessary to give effect to the functions conferred on the commission under the Act.
The commission is also empowered further to Section 6 (j) (i) - (o) (vi) and (k) - (l) to do the following:
(j) collaborating with government bodies both within and outside Nigeria carrying on functions wholly or in part analogous with those of the commission concerning -
The identification, determination of the whereabouts and activities of persons suspected of being involved in economic and financial crimes;
The movement of proceeds or property derived from the commission of economic and financial and other related crimes;
The exchange of personnel or other experts;
The establishment and maintenance of a system for monitoring international economic and financial crimes in order to identify suspicious transactions and persons involved;
Maintaining data, statistics, records and reports on persons, organisations, proceeds, property, documents or other items or assets involved in economic and financial crimes;
Undertaking research and similar works with a view to determining the manifestation, extent, magnitude and effects of economic and financial crimes and advising government on appropriate intervention measures for combating same;
Taking charge of, supervising, controlling, coordinating all the responsibilities, functions and activities relating to the current investigation and prosecution of all offences connected with or relating to economic and financial crimes, in consultation with the Attorney-General of the Federation;
The co-ordination of all existing economic and financial crimes investigating units in Nigeria;
Maintaining a liaison with Office of the Attorney-General of the Federation, the Nigerian Customs Service, the Immigration and Prison Service Board, the Central Bank of Nigeria, the Nigerian Deposit Insurance Corporation, the National Drug Law Enforcement Agency, all government security and law enforcement agencies and such other financial supervisory institutions in the eradication of economic and financial crimes;
Carrying out and sustaining rigorous public and enlightenment campaign
against economic and financial crimes within and outside Nigeria; and
Carrying out such other activities are necessary or expedient for the full, discharge of all or any of the functions conferred on it under this Act.
Of special interest is section 6(i) (k) which states:"Taking charge of, supervising, controlling, coordinating all the responsibilities, functions and activities relating to the current investigation and prosecution of all offences connected with or relating to economic and financial crimes
in consultation with the Attorney-General of the Federation" (emphasis mine).
I have laid emphasis on this provision because of the recent emotional outburst that greeted the attempt by the Attorney General of the Federation to exercise this power that is conferred on him, both by the EFCC Act and the constitution.
The Attorney General of the Federation received all manner of verbal and written assaults for asking rightful questions on the activities of the commission further to the above quoted section.
It is my humble view that the makers of the law took due cognisance of the fact that the Attorney General of the Federation being the Chief Law Officer of the country ought to know and give legal advice and direction to the commission in the discharge of its functions, hence the provision of the clause.
If the commission was meant to be totally independent of the Office of the Attorney-General, I am convinced that the draftsmen would not have included this clause, as well as the Section 43 that empowers the Attorney-General to make regulations for the commission in the statute.
The Attorney General was clearly misunderstood and unfairly treated by a section of the press, of the public and some of my colleagues in the exercise of his statutory conferred relationship with the commission.
Suffice it to say that Section 174(i) of the Constitution also gives the AGF absolute powers over public prosecution including the power to discontinue any criminal proceedings in respect of an offence created by or under any Act of the National Assembly at any stage of the proceedings, but before judgment - Section 174(i)(i) of the Constitution.
Though by Section 174(3), the AGF is expected to be circumspect in exercising this power, taking cognisance of public interest, the interest of justice and prevention of abuse of process.
To my knowledge, the Attorney General of the Federation did not exercise this power at any stage before the umbrage.
In its short period of existence, the commission has, without any iota of doubt, done well in certain areas that might and should be commended including but not limited to the foregoing.
The commission, through its activities helped in recovering looted funds from the public treasury stashed away in foreign banks. Example is the recovery and repatriation of 24 million dollars and 50 million dollars of the Abacha loot through the help of Swiss authorities and banks.
The course of writing this paper, I read where the Chief of Staff of the Commission, Mr. Dapo Olorunyomi, was reported in the ThisDay and Punch Newspapers of March 11, 2008, to have said that the commission has recovered more than five billion dollars of stolen funds.
He was also reported to have said that the commission has obtained 213 convictions and currently prosecuting over 100 cases of corruption and money-laundering in various courts nationwide.
Mr. Dapo Olorunyomi is further reported to have lamented that the rate of only 213 conviction is pathetic taking into consideration the high level of corruption in the country.
The restoration of credibility to the Legislature through the on-going prosecution of a past Senate President, as well as the prosecution and conviction of a former Inspector General of Police, are well commendable.
The successful prosecution and conviction of a former state governor and the recovery of stolen funds and property from him is laudable.
Nigeria and Nigerians are now being acknowledged internationally as a country that is moving up on the corruption index.
Prior to the coming of the commission, foreigners had been swindled to the tune of N200 billion by Nigerian fraudsters, according to Tony Ede, Corporate Affairs Manager of Central Bank, as he then was. The result of which was lack of
confidence in the Nigerian economy. Investors were reluctant to do business while Nigeria and Nigerians were scorned by other foreign nationals.
The commission has helped in sanitising the tax agencies, petroleum companies, federal, state and local government administration, as well as corporate organizations.
The commission has also successfully prosecuted several cases of advance-fee-fraud, including the cases involving the Brazilian Bank, the Egyptian General, the German widow which involved such people as a major shareholder in one of the big banks, a notorious lawyer and a flamboyant socialite, as well as a member of the National Assembly, but who died in the course of his trial.
The activities of the commission have also helped in reducing drastically the infamous practice of electronic advance-fee-fraud through the use of the internet by those commonly referred to as the Yahoo boys and girls. Many of them, mostly youths, have been successfully prosecuted while others have taken flight or engaged in meaningful employment.
As I speak to you, we all must also acknowledge that the commission is currently prosecuting six past state governors, two of whom are also serving senators for sundry offences under its enabling Act which they purportedly perpetrated while at the helm of affairs in their various states.
It should be commended for so doing. This will also act as a check on others still in office.
The commission has through its activities, seminars, workshops, collaboration, as well as its enlightenment campaigns and website brought the ills and evil of corruption to the front burner in our national discourse and through that created a lot of awareness and education on the issue of corruption in our body polity.
It is not uncommon to hear people say to another "I will take you to EFCC" and that of course, instills the fear of the law on corruption in the people.
The mere mention of the commission acts as deterrent to people who want to engage in corrupt practices. This is a plus for the commission.
Today, to the credit of the commission, Nigeria has a better credit rating than it hitherto had prior to its coming. Foreign businesses and business people are more willing to do business with and in Nigeria with Nigerians with the assurance of dealing honestly. Examples abound of direct foreign investors, suppliers and even companies and institutions now offering credit facilities to Nigerians including banks, suppliers of raw materials and finished products and even credit card companies as: MasterCard and Visa.
In all of these laudable achievements of the commission, one cannot but comment on areas in which it has fallen short of expectations.
The major militating and debilitating factor that has affected the commission and has drawn scorn to it, especially in the past couple of years, has been its incursion into partisan politics.
In the build-up to the last general elections, the commission and its then chairman made itself available as a willing tool in the hands of politicians to settle personal and partisan political scores.
The commission played very despicable roles in the impeachment exercise of the then governors of Plateau, Bayelsa and Ekiti states.
The style of the EFCC then was to arrest lawmakers in the various Houses of Assembly, put them in detention on sundry charges, force them to sign impeachment notices and thereafter transport them from its custody to their various states from custody to effect the impeachment of the governors in return for freedom and exclusion from prosecution.
We can also not but mention its rather shameless role in the purported indictment of perceived political opponents of the then President and subsequent attempts to exclude them from participating in the last elections. Examples abound. But of particular interest is the case of then Vice President, Alhaji Atiku Abubakar, whose purported indictment was based on a report on the Petroleum Trust Development Fund (PTDF) submitted to the former President by the commission, albeit against the dictates of the statute setting it up.
There is also the case of former Kogi State governor, Alhaji Abubakar Audu, AC Candidate for governorship in Adamawa State, Ibrahim Bapetel, among others. The current governor of Rivers State was also purportedly indicted by EFCC, but for his tenacity and the courts, his nomination that purportedly had K-leg would not have been restored.
But for the Judiciary, which has since overruled and set aside the purported indictments, albeit at great cost of tax-payers' money, man hours and colossal damage to our national psyche, the commission would have been successfully used to deprive them of their rights to contest elections.
Most ridiculous was the purported indictment of ANPP Senatorial candidate in Ogun Central, Lanre Tejuosho, whose opponent was the then president's daughter, allegedly based on the commission's report even when he was never questioned by the commission.
Further to the foregoing, the commission has also been variously accused and perhaps rightly too of selective and partial justice and investigations.
It has to date refused or failed to apply the same zeal, enthusiasm and vigour with which it investigated and publicised the PTDF to the allegations of monumental corruption in the Nigerian Ports Authority, which was headed by a top chieftain of the ruling party and a close confidant of the then President.
Rather, its then chairman turned himself to the defence counsel of the party chief by telling the public that the man as chairman was not the chief executive of the authority.
Its delayed investigations into the allegations of impersonation and corruption against a senator with filial affiliation to the immediate past President by a Swedish company, also leaves a sour taste.
The commission, I must say also left a lot to be desired in its manner of over-publicising its investigations even before it commences such. It was the practice to go to press and gleefully announce to the world its impending investigation of certain public officers and infractors, thereby leaving room for the infractors to cover up their tracks before the arrival of its operatives.
I am of the view that the commission could be more circumspect and discreet in its operations like its counterparts in other climes like the Scotland Yard in England and FBI in the USA, amongst others.
The comments of its then chairman on, a then deputy governor, now governor of a state in the South West, as well as an acclaimed strongman of the state politics at a lecture at the University of Ibadan, is rather fresh. The commission, after the widely published comments of its chairman, is yet to do anything to investigate or prosecute either of them.
The chairman had declared both corrupt and unfit to hold office, but thereafter did nothing to put them to book - for obvious reasons.
You will recall that the strongman even admitted on National Television that he was entitled to a 25 per cent share of the state's monthly security vote.
I will refrain from discussing its role in the politically motivated freezing of Lagos State government's bank accounts on the eve of the last elections.
Human rights and rule of law are very fundamental rights enshrined in our constitution and indeed universally accepted as cardinal to democratic process and our lives.
But with the commission, people's rights were freely abused by its habit of keeping people for indefinite periods in its detention facilities even when courts of the land have ordered otherwise.
This was a prevalent practice, while the commission in its reaction continuously displayed its scant regards for the orders of court by its reactions to such orders, as well as its continuous and never ending castigation and show of disrespect for the courts of the land.
This is not to mention the cases of persons who were held by the commission for sundry offences outside its competence to handle by the provisions of its enabling statutes.
The commission became so paranoid of the courts that it recklessly branded the courts corrupt, when its bidding were not done by the courts.
The immediate past chairman of the commission in his crusade, made the commission look like a personal fiefdom and built a personality cult around himself.
Whilst not taking away or deriding his modest accomplishment as the head of the commission, he created a personality cult around himself and made it look like the commission could not operate without his person.
This was largely responsible for the avoidable, and in my view, unnecessary controversies and misrepresentations that greeted his nomination for a career enhancing and most sought after capacity building training at the National Institute for Policy and Strategic Studies.
Lest, I be accused of being uncharitable, I will refrain from discussing the manner of appointment and rapid promotions of its erstwhile chairman by the former President.
In the few years of its operations, the commission may have done its bit creditably well in fighting corruption and repositioning the country, but I think it also has to embark on a house cleaning exercise.
It is not enough to re-deploy its officials who engage in bribe taking and other corrupt practices back to the Police, from where they were seconded to the commission. It ought to have shown example by prosecuting those of its officials and operatives who are found to be corrupt. It never did.
In concluding this piece, I wish to submit that the Economic and Financial Crimes Commission has done creditably well in restoring our pride as a nation and imbued fiscal discipline in our body polity.
It can do better if it takes criticisms in good faith and desists from engaging in politics.
It will also do well in the light of current revelations to immediately commence a holistic investigation of the immediate past administration of Gen. Olusegun Obasanjo and possibly those before him and Gen. Sani Abacha. Such exercise would help unburden it of the luggage of being labeled a hunting dog of the immediate past administration and its attendant negativism.
The Economic and Financial Crimes Commission will also be doing its image and public rating a great service by respecting the orders of courts, the rule of law and the rights of people it investigates.
Circumspection is recommended as a virtue that the commission must espouse in its activities, while also being covert rather than overt in its investigation until it gets results.
The commission must submit itself to scrutiny by constituted authority and the general public by publishing its annual reports, which should include its audited account as a show of transparency.
There are certainly officials of the commission who engage in untoward activities and corrupt practices. Rather than re-deploy or simply lay off such officials, it must put them through the process of investigations and prosecution to convince the public that it is not just grandstanding whilst shielding its own.
The much discussed and alleged corruption infested Nigerian Ports Authority must be revisited and convincingly scrutinised with prosecution of persons found wanting.
The commission must be less combative of its critics, but should rather sieve through and take out for its use, the fine points of the criticisms.
The leadership of the commission and its officials should be more concerned with building an enduring institution that would be a pride of the nation and be globally accepted and respected.
More focus should be on the activities of the commission and not a personality cult being built around its leadership. Though I acknowledge that they may be inseparable, efforts must be made to gain public confidence in all officials of the commission and not in a few individual(s).
The commission should embark on more public enlightenment exercise and education of the public on the ills of corruption.
I will advise the commission to submit itself to constituted authority, co-operate with other governmental agencies, while resisting interference in its activities as enshrined in its enabling law.
It must ensure due process in the appointment of its leadership. Its leadership must possess the required qualification for the positions and be appointed in accordance with the dictates of the law.
The foregoing are my thoughts on the Economic and Financial Crimes Commission and its role in nation-building.
Babatunde Ogala, is the chairman, Committee on Judiciary, Lagos State House of Assembly.

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Lawyers fault Gani on EFCC

Lawyers disagree with Fawehinmi’s call for Aondoakaa’s sack• Saturday, Sep 22, 2007
Lawyers in Lagos on Monday disagreed with Chief Gani Fawehinmi’s call on President Umaru Yar’Adua to sack Justice Minister Michael Aondoakaa (SAN).
Mrs. Abimbo1a Williams (SAN) told newsmen that the Attorney-General’ s position was a statutory one, with well-enunciated roles in the constitution.
“I, therefore, disagree with Chief Fawehinmi that the Attorney-General should resign his office”, she said.
The Lagos State Chairman of the Committee on Judicial Matters, Mr. Babatunde Ogala, said Fawehinmi was only being emotional and prejudiced on the issue.
“The Attorney-General has not done anything to warrant such statement from Fawehinmi and as a senior colleague, I think he ought to have been more cautious in making such a ridiculous statement,” he said.
Mr Adesina Ogunlana, a senior lawyer in the Lagos State Ministry of Justice said the Attorney-General should be left to concentrate on his official duties, rather than being distracted by Fawehinmi.
He said: “Gani Fawehinmi has become known for his character. Once he does not like one’s face, he puts up a fight”.

Lawyers fault Gani on EFCC

Lawyers fault Gani Fawehinmi By ADESINA AIYEKOTI and RAZAQ BAMIDELETuesday, September 18, 2007
•Chief Gani Fawehinmi, (SAN)Photo: Sun News Publishing
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Lagos lawyer, Chief Gani Fawehinmi, (SAN) on Monday came under fire from members of Inner and Outer bar, for calling on President Umaru Yar’Adua to immediately remove the Attorney General of the Federation and Minister of Justice, Mr Mike Aondoakaa (SAN) from office.Chief Fawehinmi had anchored his call on the ground that the Attorney-General had constituted himself into a stumbling block in the war against corruption in the country.Among the top legal luminaries that countered Fawehinmi’s stance were professor Itsey Sagay (SAN) Mr Kemi Pinheiro (SAN), Mrs Abimbola Williams (SAN) Mrs Hairat Balogun, as well as Barristers Benson Ndakara, Adesina Ogunlana and Babatunde Ogala, chairman, Lagos State House of Assembly committee on judicial matters.Throwing his weight behind all the steps so far taken by the Federal Attorney General, Professor Sagay said the Minister had not gone outside the provisions of the 1999 Nigerian Constitution to warrant his sack by the President.Making reference to the decision taken by the Minister of Justice to take over the trial of former Governor Orji Kalu, Professor Sagay said the step was based on "the bedrock of this administration, which is the supremacy of the rule of law."Also countering Fawehinmi’s argument, Lagos based lawyer, Mr Kemi Pinheiro (SAN) said the fight against graft should not be left for the attorney general alone but that all Nigerians must join hands, adding: "I know the Attorney-General of the Federation as a fighter of corruption. All his actions have been constitutional and guided by law. Gani differs in opinion and strategy, there is no basis to call for his sack." Also, Mrs Hairat Balogun, former Attorney-General of Lagos State and a life bencher said nobody should call on the Federal Attorney General to resign his appointment or be sacked by the President. "He can resign on his own if he is convinced that he has done something unconstitutional," she said.Declaring that Chief Fawehinmi was expressing his opinion, Mrs Balogun, however, appealed to her colleagues to tread softly in order not to confuse the issue on hand.Mrs Abimbola Williams (SAN) described the call by Fawehinmi as unacceptable, saying nobody could ask the president to sack the attorney general without any justifiable reason. "The constitution created that office," she added.Asking the radical lawyer to leave the Attorney General alone, Benson Ndakara argued that Fawehinmi’s condemnation of the Justice Minister was highly misplaced. "Gani does not see anything wrong with the method of the EFCC and that is why he must be present at any EFCC gathering."He does not see anything wrong in selective justice being done by the commission. Today, some of the governors are facing trial, while some are walking the street with stolen money."Also condemning Fawehinmi’s call, a law journal publisher, Barrister Adeshina Ogunlana said he was not surprised that Chief Fawehinmi was criticising the attorney general because "as far as Gani is concerned, EFCC is an angel and they have no fault whatsoever."I think what the Attorney-General is trying to do now is to bring sanity to the whole system."Speaking further Ogunlana, argued that "calling for the sack of the Attorney General is very unfair. Gani Fawehinmi is patriotic, just as he is an example of extremism. And extremism should not be supported. You cannot be a democrat and be an impatient person."Babatunde Ogala in his view noted that Fawehinmi was being emotional on the issue. He described the call for Aondoakaa’s sack as prejudiced.