UNDERSTANDING THE VIOLENCE AGAINST PERSONS (PROHIBITION) ACT, 2015

 

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During the Nigeria Bar Association Law week, my lecturer Professor Alphonsus Okoh  Aluba delivered a lecture on the new “Violence Against Persons Prohibition Act 2015″ which gave me first insight into this new legislation that seeks to prohibit any violence against persons in Nigeria.

On May 25th 2015 the immediate past President of Nigeria, Goodluck Ebele Jonathan recorded a milestone when he signed into Law the Violence Against Persons Prohibition Act, 2015. This has brought to a successful conclusion the 14-year-long social and legislative advocacy championed by women’s groups and gender activists towards the passage of this law that will protect women and girls from all forms of violence. This Act, according to its long title, is aimed to eliminate violence in private and public life, prohibit all forms of violence, including physical, sexual, psychological, domestic, harmful traditional practices; discrimination against persons and to provide maximum protection and effective remedies for victims and punishment of offenders.

This Act commendably covers most of the prevalent forms of violence that could be categorized into: Physical violence; Psychological violence; Sexual violence; Harmful traditional practices; and Socio-economic violence. Specifically, The VAPP Act comprehensively deal twith one of the most vexed forms of sexual violence, rape, from which existing penal laws protected only females and limited to vaginal penetration .
It has expanded the scope of rape to protect males and to include anal and oral sex as well as protect the identity of rape victims.
The following are offences punishable under the Act: Rape, Inflicting
Physical Injury on a Person, Female Circumcision or Genital Mutilation, Forceful Ejection from Home, Depriving a Person of His/Her Liberty, Forced Financial Dependence or Economic Abuse, Forced Isolation or Separation from Family and Friends, Emotional Verbal and Psychological Abuse, Harmful Widowhood Practices, Abandonment of Spouse, Children and Other Dependent without Sustenance, Spousal/Partner Battery, Indecent exposure, Harmful Traditional Practices, Political Violence, and Violence by State Actors.

The law begins in Section 1 by defining rape as the intentional penetration of the vagina, anus or mouth of another person if such person does not consent to the said penetration or if the consent is obtained by force or means of threat or intimidation. It also recognises that women can commit rape as well. Section 2 states that a person if found guilty of rape will be liable to imprisonment for life except where the offender is less than 14 years in which such person will be liable to a maximum of 12 years in prison, however, in other cases such person can only be sentenced to a minimum of 12 years in prison. If the rape is however committed by a group of persons, the offenders are liable jointly to a maximum of 20 years imprisonment without option of fine and the court shall also award compensation to the victim. The law also states that a register of convicted sex offenders shall be maintained and accessible to the public.

The new law also provides that anyone who willfully causes or inflicts physical injury on another commits an offence and is liable on conviction to a jail term not exceeding 5 years in prison or a fine not exceeding N100, 000 or both.

Also anyone who incites, aids, abets or counsels another person to commit an act of violence is liable on conviction to a term of imprisonment not exceeding 3 years or a fine not exceeding N200, 000 or both. The court may also award compensation to the victim.

Furthermore, according to the law, coercing another to engage in acts that are detrimental to the person’s physical or psychological well being is an offence and a person is liable on conviction to imprisonment for 3 years. Anyone who also willfully places a person in fear of physical injury commits an offence and is liable on conviction to a term of imprisonment not exceeding 1 year to a fine not exceeding of N100, 000.

Compelling another to commit an act either sexual or otherwise, to the detriment of the victim’s physical or psychological well being is an offence and a guilty party is liable on conviction to a jail term not exceeding 2years.

It is worthy to note that the law prohibits female circumcision and offenders will be liable to imprisonment for a term not exceeding 4 years or to a fine not exceeding N200, 000 or both. An attempt to commit the act also attracts a jail term not exceeding 2 years and a fine not exceeding N100,000 or both.

The law also provides for forceful ejection from the home wherein a person who forcefully evicts a spouse or refuses them access commits an offence and liable to a jail term not exceeding 2 years or a fine not exceeding N300,000 or both. The law also states that depriving another of his or her liberty without a court order is an offence and a person convicted is liable to a jail term not exceeding two years or a fine not exceeding N500, 000.

Causing mischief or destruction of property with intent to case distress is also an offence and a guilty party will be liable to jail term not exceeding two years in prison or a fine not exceeding N300, 000.  Another offence is also forcefully isolating a person from friends and family and a guilty person on conviction will be liable to imprisonment for a term not exceeding 6 months or a fine not exceeding N100, 000 or both.

Importantly, the Act contained provisions on effective remedies,
including the rights of victims to assistance. According to section 38,
“Every victim is entitled to receive the necessary materials, comprehensive  medical, psychological, social and legal assistance through governmental agencies and/or non-governmental agencies providing such assistance.” Victims are entitled to be informed of the availability of legal, health and social services and other relevant assistance and be readily afforded access to them. Furthermore, it provides that: “Victims are entitled to rehabilitation and re-integration programme of the State to enable victims to acquire, where applicable and necessary, pre-requisite skills in any vocation of the victim’s choice and also in necessary formal education or access to micro credit facilities.”
This Act, long overdue in coming, will unarguably bring succor and effective remedies to millions of victims who have suffered in silence without recourse to justice or rehabilitative-psycho-social support for their recovery and reintegration. The Act affords access and better services  for victims/survivors of violence, such as hotlines, shelters, legal advice, access to justice, counselling, police protection, and comprehensive health services.
The only drawback in relation to this law is its limited application to the
Federal Capital Territory, Abuja. This is as a result of the nature of Nigeria’s federal structure and constitutional distribution of powers between the Federal Government and States of the Federation. It is expected that 36 states of Nigeria will take immediate and necessary action to adopt and enact similar law on Violence against persons.
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Corruption in our judiciary

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i read a piece by on Daily Trust titled “Corrupt Judges: Does our Chief Justice need help?” published on 27th September 2015 which elaborate the extent of corruption in our judiciary and the need for adequate solution in order to address it. Last Monday, Justice Mahmud Mohammed, the Chief Justice of Nigeria (CJN) admonished senior lawyers in the country to stop making “unguarded” utterances about corruption in the judiciary without identifying the corrupt judges. Somehow, the CJN sounded as though he himself does not know his judges that are corrupt. I just hope I misunderstood his Lordship. While waiting for more comments that could illuminate the subject, I reached out to two small pamphlets in my personal library dealing with statements on corruption in the Nigerian judiciary. After reading over some of the statements, I opted to make today’s article a simple literature review of the pamphlets so as to remind us all of some relevant stories most of which are credited to judges themselves. 

In 1993, Justice Bassey Ikpeme of the Abuja high Court ruled in favour of the unregistered Association for Better Nigeria (ABN) that the famous June 12 Presidential election should not hold. The Judge breached the relevant law of the time that court proceedings were not “to affect the date, time or the holding of the election or the performance by the electoral commission of any of its functions.” It remains instructive that the ruling took place at midnight on the eve of the election. Three days later, the then Chief Judge of Abuja, Justice Dahiru Saleh issued a bench warrant for the arrest of the then Chairman of the Electoral Commission, Professor Humphrey Nwosu for non-compliance with the ruling of Justice Ikpeme. Saleh discountenanced the decision of a superior Justice Oguntade then of the Court of Appeal that: “where a court makes an order in contravention of a statutory provision which forbids it from making such order, the order so made is null and void and no appeal need be filed against the order.”

Five years later, when the judiciary had opportunity to determine election petitions in respect of the local government elections of 1998, government was forced to disband the election tribunals because as the then Chief of General Staff, General Oladipo Diya told the nation, “petitions, allegations of bribe taking and even confessional statements by some members of the election tribunals threatened to undermine the credibility of the judicial process.” Justice Kayode Esho a retired Justice of the Supreme Court was probably more apt when he opined that “the election tribunals were turning judges into billionaires.” His learned brother, Justice Chukwudifu Oputa at a point stated on national television that there are dishonest lawyers “who after charging their normal fees, charge extra for the judge. If so, which judges are involved? The initial belief that corruption in the judiciary was limited to the lower courts was dispelled by Justice Samson Uwaifo of the Supreme Court who at his valedictory session, in 2005, revealed that corruption “had gradually crawled to the high courts and would appear to have had a foothold among a noticeable number of judicial officers there.” This seems to explain why the work of the Kayode Esho panel, reviewed by another committee headed by Justice Bolarinwa Babalakin, also a former justice of the Supreme Court, saw to the sack of as many as 28 serving judicial officers.
No one could have felt a greater pain than our current President Muhammadu Buhari when Wikileaks revealed that the court victory secured by his opponent concerning the 2007 election was purchased.  The only stories that came thereafter had to do with numerous ex-parte orders restraining INEC from recognizing some candidates nominated for elections by their political parties in 2011. With more election cases to contend with than the election itself, the then chairman of the commission, Prof Attahiru Jega had to formally draw the CJN’s attention to what he called an “emerging trend in the political process where ex-parte orders are granted at the top of a hat by judges”.  No wonder, a report titled: “Department of State’s Country report on Human Rights practices for 2011”, which was submitted to US Congress by the then Secretary of State, Mrs. Hillary Clinton, said that “Nigerian judges frequently failed to appear for trials, often because they were pursuing other sources of income. This appears to explain why the Court of Appeal in 2012, went to sleep for months till a few hours before the deadline for handling the Adamawa governorship election petition.  Then, on the last day, the court arrived in Yola, sat, wrote and delivered a judgment in a manner akin to how decisions affecting some local communities are made and pronounced by their Igwes in the famous African magic series.
It was thus an interesting valedictory speech one year later, when, a retiring Justice of the Supreme Court, Justice Stanley Shenko Alagoa, admitted that some judges collect bribe from politicians and traditional rulers to pervert the course of justice. Alagoa disclosed that politicians often resort to intimidation and harassment in their uncanny bid “to influence judges to depart from their sacred oath of office and the path of honour and rectitude.” His learned colleague Justice Olufunmilayo Adekeye made perhaps the same case which seems to colour the roles of judges in the matter as passive. Interestingly, with all the allegations about politicians attempting to induce judges, we are yet to hear of any judge who ordered the arrest of anyone seeking to offer him bribe, which is itself an offence.
Now that the CJN wants senior lawyers to name corrupt judges so that they can be dealt with by the National Judicial Council, we, ordinary citizens are yet to appreciate how the NJC deals with cases. For instance, who exactly did that body deal with over the squabbles at the very top associated with the Sokoto governorship election petition? A clear answer to this type of question can do two things. First, it can make people have more confidence in the judiciary. Second and more importantly, it can establish that the judiciary, like every human organization has its bad eggs who are not necessarily more than the large number of men and women of proven integrity that should deservedly be honoured all the time.

The judiciary’s worrisome burden

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After reading Daily trust’s editorial of Monday 9th march 2015 with the above title, I understood better some of the issues that are bedeviling our judiciary and as an aspiring member of this noble profession,I believe our judicial system is dire need of reforms. We must do our best to sanitize and reform the system for the betterment of the country.

The Chief Justice of Nigeria (CJN), Justice Mahmud Mohammed, recently expressed concern that the Supreme Court was burdened with a huge number of cases. He lamented that 5,000 appeals were pending before the apex court; some instituted in 2005.
Speaking at a forum organised by the Nigeria Bar Association (NBA), the CJN said over 800 cases were filed at the Supreme Court in 2014 and 10 appeals have already been filed this year.
Painting a worrisome picture of our criminal justice system, Justice Mohammed said that 38,000 cases were before federal courts alone. Obviously, the number in state high courts and other courts of records would be much higher.
“The current reality paints a sobering picture. The number of cases pending before courts has reached critical proportions and we must use all appropriate means to stop it from spiralling out of control,” the CJN said.
Some of the cases have been going on for decades, with the litigants nowhere near getting a closure anytime soon; some have died while awaiting resolution. For instance, the Supreme Court gave a ruling  on February 13, 2015, in a case instituted at a lower court in 1984 over a chieftaincy stool in Pankshin local government area of Plateau State, long after all the disputants had died.
The regrettable state of Nigeria’s justice system is a result of decades of neglect by successive administrations to grant financial autonomy to the third arm of government, in spite of the principle of separation of powers enshrined in our constitution.
There is no gainsaying the urgent need to reform the criminal justice system to enhance the rule of law, curb impunity and abuse of human rights. The archaic substantive and procedural criminal laws need to be reviewed and overhauled because as the dictum says, ‘justice delayed is justice denied.’
Justice Mohammed is in a position to fast-track the justice delivery system as his tenure will be defined by what he does in significantly improving the situation.
A starting point would be the setting up of new but effective and reliable Alternative Dispute Resolution (ADR) courts, like India did when it was faced with an even direr situation between 2001 and 2012, leading to the resolution of over two million cases. Several European countries have embraced the ADR option and freed the judiciaries from the heavy burden.
Mohammed also has to urgently tackle indolence among judges. His predecessor, Justice Mariam Aloma-Muktar, noted in 2013 that some judges did not deliver up to four judgments in a year, and would not start sitting by 9 am. Some even travelled abroad without permission, the retired CJN added. This scourge of indiscipline and slothfulness among judicial has to be arrested hence the need for a periodic appraisal of judges to ensure they are performing.
The rising incidence of corruption among personnel is another issue that has to be dealt with. The system is highly compromised, resulting in judges often granting frivolous injunctions. Judges who have soiled their robes are not fit to be part of the Bench.
Judges and other judicial staff need continuous retraining to handle difficult and complex cases. Provision of infrastructure is also critical to enhance performance. With the advances in information and communication technology, courts worldwide now operate with ease and efficiency to deliver quality rulings on time.
The National Assembly should speed up the passage of the Administration of Criminal Justice bill (2013), which seeks, among other issues, to limit the adjournment of cases to a maximum of five times with not more than 14 days interval, which is pending in the two chambers along with 14 other justice sector reform bills.
Amendment to relevant portions of the Constitution should be done to make some cases, like governorship and legislative elections petitions, terminate at the Court of Appeal. This will lessen the burden of the apex court.
Effective justice administration is key to the growth of democracy and economic development, hence the need to strengthen the system. In collaboration with the bench, the NBA should institute a system to punish lawyers who deliberately frustrate the judiciary; this way the association would be paving way to a faster regime.

The illegality and return of Bar. Bala Ngilari as Governor of Adamawa State

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Yesterday a new chapter to the ongoing melodrama in Adamawa politics was flipped when the court sacked Alh. Umaru Ahmed Fintiri as the acting governor of Adamawa state and declared the former deputy governor of Adamawa state Bar. Bala Ngilari as the substantive governor of the State. This was three months after he was ousted out together with his boss and former Governor Murtala Nyako.

The erstwhile Deputy Governor had filled a suit before the Federal High court in Abuja, seeking an order compelling his swearing in as the governor of the state. He had asked the court to declare his resignation letter dated July 24, 2014 and addressed to the Speaker of the House of Assembly as invalid, null and void. In his suit marked FHC/ABJ/CS/545/14, the plaintiff argued that his resignation was in breach of section 306 (1), (2) and (5) of the 1999 constitution of Federal Republic of Nigeria (as amended) because it was addressed to the Speaker and acted upon by the House of Assembly. Those sections in the constitution states thus;

  1. 306(1): Save as otherwise provided in this section, any person who is appointed, elected or otherwise selected to any office established by this Constitution may resign from that office by writing under his hand addressed to the authority or person by whom he was appointed, elected or selected.
  2. 306 (2) The resignation of any person from any office established by this Constitution shall take effect when the writing signifying the resignation is received by the authority or person to whom it is addressed or by any person authorised by that authority or person to receive it.
  3. 306 (5) The notice of resignation of the Governor and of the Deputy Governor of a State shall respectively be addressed to the Speaker of the House of Assembly and the Governor of the State.

Justice Adeniyi Ademola, while delivering his judgment, ruled that Ngilari’s letter was written at a time when Nyako had not been been removed, thus implying that the letter ought to have gone through as then governor which it did not, thus rendering it null and void. He also therefore ruled that Ngilari be sworn in as the substantive governor of the state.

Personally, I align myself with the judgment of his lordship because to my mind, there was a breach of legislative procedure when the House of Assembly sat and approved the resignation of the then deputy governor when the governor was still in office. It was afterwards that Nyako was impeached. Since at the time the purported resignation letter was sent, Nyako  was still the governor of the state, the letter should have been address to him who in turn should forward it to the House of Assembly for due consideration. I hold this view because any breach of legislative procedure by the National Assembly or the State House of Assembly in exercising their legislative duties must be frowned at and declared illegal, null and void. The court in plethora of cases have stressed out this emphatically that any breach of legislative procedure by legislative is illegal and is declared null void. This can be seen in the case of Dariye v. Dapialong. Also in the case of A.G Federation v. Abubakar Atiku and a host of other cases. The court has proved once again as the protector of our young democracy.

This is not the end of this melodrama because the former governor Murtala Nyako’s suit challenging his impeachment is still pending in court and also the former Acting governor Umaru Fintiri has also promised to appeal his sack by the court. From my ends, my hands are crossed as we all await the next episode of this political tussle.

The Misconstruction of the word “Impeachment” under the 1999 Constitution of the Federal Republic on Nigeria

Every democratic society has mechanism that checkmates its leaders from becoming autocratic. This is in consonance with the words of Lord Acton that “Power corrupts, absolute power corrupts absolutely”. Nigeria, like most democratic societies, has one of such mechanisms and this is known as “Impeachment or removal”. This piece is aimed at ascertaining the real meaning of the word “Impeachment”.

The Black’s law dictionary (9th edition) defines Impeachment as “The act (by a legislature) of calling for removal from office of a public official, accomplished by presenting a writing charge of the official’s misconduct; for example a written accusation of the House of Representatives of the United States to the Senate of the United States against the President, Vice President, or an officer of the United States, including federal judges”. Wikipedia defined Impeachment as “a formal process in which an official is accused of unlawful activity, the outcome of which, depending on the country, may include the removal of that official from office as well as criminal or civil punishment”.

The 1999 Constitution of the Federal Republic of Nigeria was copied from the constitution of the United States of America and Impeachment under their constitution means to formally accuse a public official of a crime. In the United States, it is only the House of Representatives that have the power to impeach the President. The next procedure after impeachment is trial and then removal or acquittal. In the United States, only the Senate has the power to try and remove or acquit a President who has been impeached (by the House of Representatives). Only two Presidents have been impeached in America’s history, and both were acquitted by the Senate. They are President Andrew Johnson (America’s 17th President who was acquitted by just one vote) and President Bill Clinton (America’s 42nd President).

Our Courts, Legal practitioners, Legal scholars, Law students, newspapers and the populace interchange “impeachment” with “removal” because they are copying the drafters of the 1999 Constitution of Federal Republic of Nigeria who with all humility and respect misinterpreted or misused the word “impeachment”.

In the only two passages in which in the constitution that the word “impeachment” appears it is used as if it meant “removal”. In Section 146 which states that:

Section 146 (1); The Vice-President shall hold the office of President if the office of President becomes vacant by reason of death or resignation, impeachment, permanent incapacity or the removal of the President from office for any other reason in accordance with section 143 of this Constitution.

Section 146 (3) (a); Where the office of Vice-President becomes vacant:-

  • By reason of death or resignation, impeachment, permanent incapacity or removal in accordance with section 143 or 144 of this Constitution…;

Again, in section 191 of the constitution which also states;

  1. (1) The Deputy Governor of a State shall hold the office of Governor of the State if the office of Governor becomes vacant by reason of death, resignation, impeachment, permanent incapacity or removal of the governor from office for any other reason in accordance with section 188 or 189 of this constitution.

Section 191(3) (a); Where the office of the Deputy Governor becomes vacant –

  • By reason of death, resignation, impeachment, permanent incapacity or removal in accordance with section 188 or 189 of this Constitution;

While the impeachment clauses in the United States constitutions states thus;

Article 1, section 2, Clause 5: The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.

Article 1, Section 3, Clause 6: The Senate Shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on Oath or Affirmation. When the President of the United States is tried the Chief Justice shall preside; and no person shall be convicted without the concurrence of two thirds of the Member present.

Article 1, Section 3, Clause 7: Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold or enjoy any Office of honour, trust or profit under the United States…

Article 2, Section 4: The President, Vice President and all the Civil Officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

Well, an office can’t possibly become vacant by reason of “impeachment” as stated in the Nigerian constitution. Just like people don’t go to prison simply because they have been accused of an offence, a Vice President or Deputy Governor’s office can’t become vacant simply because he or she has been impeached. That would be a perversion of justice.

The attitude of our courts in using the words “impeachment” and “removal” interchangeable can be seen in the case of Dapianlong v. Dariye SC. 39/2007 where the Supreme Court stated that “It should  be  noted that section 188 which  deals with the removal or impeachment of a Governor or Deputy Governor from office talks of “members” and “all members” in different subsections and while describing the function or duties of the members of the House in relation to the removal of the Governor or Deputy Governor there under…”

The Supreme Court in the case of Inakoju v. Adeleke (2007) 4 NWLR (pt, 1025) 423 at 611 – 618, where Justice Niki Tobi JSC (as he then was) in his leading judgment tried to distinguish the difference between “impeachment” and “removal” when he said;

The point I have been struggling to make is clear from the above relief. Section 188(1) and (2) does not provide for the word ‘impeachment”. The appropriate word is removal, although section 188(1) contains the verb “removed”. In the circumstances, the first relief should have used the word ‘removal’ in the place of ‘impeachment’.

 What is the meaning of impeachment? .Black’s Law Dictionary defines the word as follows:

 ‘A criminal proceeding against a public officer, before a quasi-political court, instituted by a written accusation called articles of impeachment; for example a written accusation of the House of Representatives of the United States to the Senate of the United States against the President, Vice President, or an officer of the United States, including federal judges.’

 This definition, with a slant for the United States Constitution, does not totally reflect the content of section 188 of the Constitution, as it conveys so much element of criminality. Section 188 is not so worded. The section covers both civil and criminal conduct. I am not saying that the definition vindicates the totality of the impeachment provision of the United States Constitution. It is my view that the word should not be used as a substitute to the removal provisions of section 188. We should call spade its correct name of spade and not a machete because it is not one. The analogy here is that we should call the section 188 procedure one for the removal of Governor or Deputy Governor, not of impeachment.”

Curiously, under the Nigerian constitution never uses the word “impeachment” in relation to the President and State Governors; it instead talks of the procedures for “removal” of the President and Governors from office. Impeachment was used only in referring to the offices of the Vice President and Deputy State Governors.

Some may argue that “impeachment” and “removal” can be used interchangeable because Corpus juris Nigeria is different from Corpus juris Secundum(America). But it’s still my humble submission that a legislative amendment to our 1999 Constitution be made to correct this manifest error because from the wordings of our constitution, the intent of the drafters was “removal” and not “impeachment”.