Law

Olatunji: We’ll not allow self-centred individuals to destroy NBA

‘FG must sanction actors in  Chinese loan agreement’

 

Abiodun Adediran Olatunji (SAN) in this interview speaks on penalty for rapist, NBA crisis, Nigeria’s rising debt profile, Correctional Service and CAMA Acts and sundry issues. Foluso Ogunmodede reports

 

 

Days after Chief Afe Babalola (SAN) called for castration of rapists, the Kaduna Assembly has also passed a law for the castration of perpetrator of the dastardly act. Will castration enough punishment to deter offenders?

 

Rape is a social malaise. It is a criminal conduct that is very brutal. There is no depth to the sense of outrage and revulsion that one feels when one reads reports of rape and the subsequent murder of the victims by murderous gangs who indulge in this inhuman conduct.

 

However, I am of the opinion that rather than a knee-jerk reaction to this problem, what the society needs is a resurgence of solidarity geared towards the protection of the most vulnerable. No single mode prevention, solution and or punishment will suffice.

 

For me, the enormity of this crime simply deserves any form of punishment no matter how extreme. Castration, you know is the ‘surgical removal of a man’s testicles or his treatment with drugs to lower his testosterone and consequently his libido.

 

This may be part of the solution. Some medical studies have shown that castrated criminals have lower recidivism rates than those who did not receive the procedure. In some countries where the crime is endemic, castration is an option that is now being forcefully pushed. In many of the federating states in the United States such as California, Florida, Iowa, Louisiana, Montana, Texas castration may be required of a repeat offender.

 

India, a nation that has been on the global spotlight for brutal rape cases recently proposed chemical castration of rapists, South Korea also of recent decided to castrate a serial rapist.

 

Women parliamentarians in Zimbabwe are pushing for severe punishment for rapists which include life term or castration. I do believe that such measure if adopted where the rape incident does not result in the physical disability or any life threatening injury or death of the victim, may help deter those who indulge in this heinous and brutish violence against women.

 

Where, however, the devious acts of rapists result in death of the victim, the penalty should be bullet to the head of the rapist.

 

Apart from the recently marred NBA election, threatening the unity of the lawyers’ umbrella body, there’s also the controversial withdrawal of the invitation letter extended to Kaduna state governor as guest speaker in the just concluded AGC. Do you see the center ever hold again for the NBA?

 

The election of members of the National Executive Committee of the Nigerian Bar Association has been conducted and a winner declared. The winners have been sworn in. Mr. Olumide Akpata who won election into the office of the President has been sworn in and is now performing his duties as the President of the NBA.

 

The interesting thing for me is that the candidate, who came second during the contest immediately conceded defeat, congratulated the winner and urged all members to rally round the new President to achieve his set goals for the association. That is the kind of leadership contest that we all desire for the NBA. A contest in which the winner claims victory with grace and the loser accepts defeat with equal grace.

 

Those who disagreed with the outcome of the elections have the rights to disagree and ventilate their grievance [if any] at the appropriate venue. What we should not condone is any attempt by anybody no matter highly placed to pull the association down simply because the individual lost an election.

 

The NBA is an umbrella body of all lawyers in Nigeria; it is the largest gathering of lawyers in the whole of Africa. The association is bigger than any individual and its interest is superior to every individual member’s interest.

 

On the El-Rufai dis-invite saga and its aftermath, let me say straightforward that the attempts by some members to wrap the whole issue in an ethno-religious garb is rather unfortunate and uncalled for. The National Executive Committee of the NBA issued a statement on this issue.

 

In the statement the NEC made it clear that the decision to dis-invite Mallam Nasir El-Rufai, the Governor of Kaduna State as a Speaker in one of the Panel Sessions of the just concluded NBA 2020 Annual General Conference was based on its judgment that it was not in the best interest of the association to be engulfed in the controversy that trailed the invitation.

 

You would recall that a group of lawyers had launched an online petition against the decision to invite the Governor as a Speaker at the NBA 2020 AGC and called for the withdrawal of the invitation.

 

The petition within days had secured thousands of signatures before the NBANEC took the decision to dis-invite the Governor. The former NBA President, Paul Usoro tendered an unreserved apology to the Governor and explained the circumstance which necessitated the withdrawal of the invitation. The NBA-NEC also did a letter to the Governor to explain the circumstance of the dis-invite and also offered an apology to him.

 

The NBA-NEC made it clear that it did not by the dis-invite pass any judgment on the Governor as there was no basis for such. Contrary to the religious and ethnic sentiments being whipped up by some members, the NBA and its NEC does not represent the religious or ethnic view of any group or persons; it’s an umbrella body of all lawyers in Nigeria irrespective of religion or ethnic bias.

 

The unfortunate move of some members to form a parallel association and thus create crisis within the association must be condemned by all. The NBA is the conscience of the Nation. A strong and united bar is a bulwark against government interference in the administration of justice, infringement on citizens’ fundamental rights, disrespect for the rule of law and executive lawlessness.

 

If the NBA is divided there will be no Association to speak truth to the throne, there will be nobody to hold our leaders to account thus our nation and our people will be at risk. It is therefore not in anyone’s interest to allow any form of religious schism or ethnic sentiment to develop within the NBA.

 

What is your view on Nigeria’s rising foreign debt profile?  Would you also say due process was followed if the House of Representatives position that Nigeria is losing its sovereignty to China due to the increasing debt profile is anything to go by?

 

The government’s position as articulated by the Minister of Transport, the Minister of Finance and the Minister of Information is that the loans especially the Chinese ones are required to develop and upgrade critical national infrastructures such as roads, railways, power and others which have been left unattended to by previous administrations. These infrastructures are critical to the nation’s economic development.

 

As long as the loans are judiciously applied to develop these infrastructures, I think ultimately it will help spark economic activities which will result in improvements in citizens’ economic power.

 

 

On whether due process was followed in the way and manner the Chinese loan wasnegotiated, Iwillsay, whathasemerged from the House of Representatives’ probe into the Chinese loan is the lack of discipline, failure to pay attention to details and lack of patriotism on the part of the Nigerian team that negotiated the loan deal. It emerged from the public hearing that the Nigerian negotiators did not know or even bothered to find out the Terms of the Agreement before they signed it.

It has been reported that under Article 8[5] of the Agreement; Nigeria irrevocably waives any immunity on grounds of sovereignty or otherwise for herself or her property in connection with any arbitration proceedings except for her military assets and diplomatic assets.

 

 

This is quite worrisome for me. The country is still battling with P & ID over the latter’s threat to attach the nation’s assets abroad to satisfy its disputed $9.6billion judgement debt. Signing away the country’s sovereignty just like that is ridiculous.

 

We have laws in this country that regulates everything we do both as a government and people. By Section 6(i)(h) of The Debt Management Office [Establishment] Act 2003, the Debt Management Office shall advise the Minister – the Minister of Finance – on the terms and conditions on which monies whether in the currency of Nigeria or in any other currency are to be borrowed.

 

Interestingly, the Debt Management Office has a supervisory Board which has as its Chairman, the Vice- President of Nigeria and consists of other members as the Minister of Finance, the Attorney- General of the Federation, the Chief Economic Adviser to the President, the Governor of the Central Bank of Nigeria, the Accountant-General of the Federation and the Director-General of the Office.

 

 

By the provisions of Section 21 of the Act, no external loans shall be approved or obtained by the Minister unless its terms and conditions shall have been laid before the National Assembly and approved by its resolution.

 

The question that agitates my mind at this point in time is: “Was the Terms and Conditions of the Chinese loan laid before the National Assembly and same approved by its resolution before the Minister of Finance proceeded to obtain the loan on behalf of the Government of the Federation?

 

Another question is, did the Minister of Finance or any other person designated by her for that purpose by virtue of the provision of Section 20 of the Act, scrutinize the loan agreement before executing same on behalf of the Federal Government of Nigeria?

 

I think those who failed to do their jobs or who failed to do it diligently as expected of them and have by their failures exposed the country to a potentially embarrassing situation should be sanctioned to the full extent of the law.

 

What is your assessment of EFCC, ICPC in graft war?

 

This administration was voted into power on the basis of its promise to stamp out corruption from our national life. Nigerians saw in the person of the President an incorruptible and fearless leader determined to match his words with actions. They were convinced based on the antecedents of Mr. President. But to fight corruption in this country we need more than a strong leader. We need strong and truly independent anti-graft institutions.

 

The two major anti-corruption agencies in the country i.e. the EFCC and the ICPC – need to be strengthened and immune from executive interferences. Executive interference is the bane of a successful anti-corruption war in this country.

 

The EFCC which is the most visible of the two major anti-graft agencies is at the moment embroiled in corruption as its suspended Acting Chairman is currently being investigated on very weighty allegations bothering on corrupt practices raised by no other person than the Attorney-General of the Federation and Minister of Justice who has direct supervision of the EFCC.

 

While the allegations against the suspended Acting Chairman of the EFCC remain an allegation until his guilt is established, the revelations that have been made so far on how recovered loot had not been properly accounted for and how the agency had consistently and flagrantly disobeyed court orders and undermined the rule of law and a whole lot of other abuses, it is not out of place to say that the EFCC has fallen short of the expectations of Nigerians.

 

The ICPC on the other hand has been less visible although it has been able to secure convictions in a number of cases instituted in court. In general, I think the two agencies need to be strengthened for them to be able to deliver on their set objectives.

 

What is your take on process for judges’ appointment into the Bench?

 

The Constitution in Sections 231, 238, 250, 254B, 256, 261 and 266 provide for the appointing authority and mode of appointment of judges in all courts established for the Federation. While Sections 271, 276 and 281 provide for the appointing authority and mode of appointment of judges for all courts established for the states of the Federation.

 

Judges of all Federal Courts i.e. the Supreme Court, Court of Appeal, the Federal High Court, the National Industrial Court, the High Court of the FCT, the Sharia Court of Appeal of the FCT and the Customary Court of Appeal of the FCT are appointed by the President on the recommendations of the National Judicial Council.

 

The Head of all these courts are also appointed by the President subject to confirmation by the Senate. Justices of the Supreme Court are appointed by the President subject to confirmation by the Senate. At the state levels, Judges of the High Court, Sharia Court of Appeal and the Customary Court of Appeal are appointed by the Governor of each State on the recommendations of the National Judicial Council.

 

The head of these courts are also appointed by the Governors but subject to confirmation by each State’s House of Assembly. It is obvious that the executive arm of government plays a major role in the appointment of judges.

 

Interestingly, the National Judicial Council which recommendsjudgestotheExecutivearmof Government for appointment depends on the advice and list of persons submitted to it by Federal Executive and State Executive bodies established by Sections 153 and 197 of the Constitution respectively.

 

The National Judicial Council can only recommend persons from the list of persons submitted to it by the relevant Judicial Service Commission. It cannot go outside the list to make any recommendation. It can only recommend but the President or the Governor is not bound to accept the recommendations and make the appointment. We have seen this played out in real time in the backlog of recommendations pending before the President for appointment as Justices of the Supreme Court. Appointment of Judges has now become more of political patronage rather than a call to sacred duty.

 

The Constitution has given too much power and influence to the Executive arm in the appointment of Judges, thisneedtobelookedintothrough the lens of an amendment focused solely oninsulating thejudiciaryfromthecrushing weight of the Executive. I think the National Judicial Council should be more involved than merely making recommendations to the Executive arm of Government especially when considers the fact that the recommendations are based on the advice and list of persons received from other Executive bodies under the control and direction of the appointing authority.

 

Given the composition of the NJC, it is my humble opinion that the Council should be the appointing authority subject to confirmation by the Senate in the case of CJN, JSC, PCA, Chief Judge of the Federal High Court, Chief Judge of the High Court of the FCT, Grand Khadi of the Sharia Court of Appeal for the FCT and President of the Customary Court of Appeal for the FCT.

 

At the state level, the Council should also be the appointing authority subject to confirmation of the House of Assembly only in respect of the Chief Judge, the Grand Khadi of the Sharia Court of Appeal of the State and the President of the Customary Court of Appeal of the State.

 

The role of the Executive should be limited to the relevant executive body i.e. FederalJudicialServiceCommissionand the State Judicial Service Commission – advising and submitting list of persons to be appointed as Judges to the NJC.

 

The Correctional Service Act was signed into law in August 2019 with the objective of focusing on reformation, rehabilitation and reintegration of offenders. Would you say this Act has achieved its objective in the last one year?

 

The Correctional Service Act 2019 contains a lot of progressive innovations designed to redress the poor living conditions and improve the well-being – both physically and mentally of inmates. The provisions of the Act changed the citizens’ perception of prison as a center of retribution and breeding ground for hardened criminals to one now perceived as focused on reformation, rehabilitation and reintegration of those who indulge in criminal infractions.

 

The Act provides for medical, psychological and spiritual counseling for inmates. It also provides for the deployment of educational and vocational skill training programme.

 

There are a whole lot of provisions of the Act that are designed to radically change the public perception of the prison system in Nigeria and if well implemented, at the end of an inmate’s term, the inmate should rejoin the society a better person. I think it is too early to make a judgment on whether the Act has achieved the objectives for which the law was enacted. As you are aware, the COVID-19 pandemic berthed in Nigeria in March this year and since then things have not been the same.

 

The pandemic affected every aspect of life. The correctional centers were particularly of high risk of infection and spread of the virus. To prevent the spread of the disease within the facilities, the CJN sometimes in May this year directed the Chief Judge of all the states to decongest the correctional facilitieswithintheirjurisdictionbyreleasing certain categories of inmates.

 

That directive led to the release of thousands of inmates from correctional centers. From available records, the population of inmates across all the correctional facilities in the country is about 73,995 out of which 50,427 are awaiting trial inmates and 23,568 convicted.

 

This is according to a report by the then Nigeria Prison Service published sometime in July 2019. Of this figure, 1489 are female while 72,504 are male. In the coming years, we shall begin to see the impact of the Act.

 

CAMA bill accented to by the President has generated controversy. Can religious bodies or organisations go to court over the bill that has become law?

 

The Companies and Allied Matters Act, 2020 has elicited mixed reactions from Nigerians. It has been hailed by the business community as good for the economy as it has been seen as facilitating the ease of doing business in Nigeria while on the other hand some religious bodies or organizations and some non-governmental organisations – NGOs have condemned some Sections of the Act. Section 839 of the Act has been the most criticized of the provisions of the Act.

 

Section 839 of CAMA 2020 empowers the Corporate Affairs Commission to suspend trustees of an Association and appoint Interim Managers to manage the affairs of the Association where the Commission reasonably believes that there has been misconduct or mismanagement in the administration of the Association or where it is necessary or desirable for the purpose of protecting the property of the Association or securing a proper application of the property of the Association or in the public interest or the affairs of the Association are being run fraudulently.

 

Some religious leaders and others have called on the President to revoke his assent. With all due respect, once the President has assented to a bill duly passed by both Chambers of the National Assembly, the bill becomes law and can only be changed by way of an amendment which must also go through the whole process of law making.

 

If there is any provision of the Act which is inconsistent with the Constitution that provision will be struck down by a competent Court of law as null and void to the extent of its inconsistency. If the organizations and stakeholders thathavethreatened togotocourtcanshow that the provisions of Section 839 conflicts with any of the Sections of the Constitution, the court will intervene on the side of the supremacy of the Constitution.

 

In the absence of any such conflict or inconsistency with the Constitution, CAMA 2020 remains the law of the land.

 

 

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