DRLI sues NBC over punitive fines against ARISE TV, Channels TV and AIT

DRLI sues NBC over punitive fines against ARISE TV, Channels TV and AIT

The lawyers’ group known Digital Rights Lawyers Initiative (DRLI) has filed a suit against the National Broadcasting Commission for the fines the agency recently imposed on three television stations namely ARISE TV, Channels TV and AIT. In the suit filed at the Federal High Court, Abuja, on Friday 30th October, 2020 and marked FHC/ABJ/1441/2020 the NGO, whose main objective is to protect and promote digital rights of citizens including freedom of expression, essentially alleges that the sanction and fine imposed on the television stations creates a chilling effect on freedom of expression and constitutes an unjustifiable interference of its members’ right to freedom of expression particularly, their right to receive ideas and information from the sanctioned television stations.
The suit, which was filed by the organization’s lawyers, Solomon Okedara and Olumide Babalola, seeks the following reliefs from the court:
i. A DECLARATION that the Respondent’s arbitrary act of sanctioning and imposing fine of Three Million Naira (N3,000,000) on each of ARISE TV, CHANNELS TV and AIT purportedly in line with Sections 5.6.3 and 5.6.9 of the Nigeria Broadcasting Code creates a chilling or stifling effect on freedom of expression and is likely to interfere with the right of the Applicant’s members to freedom of expression, particularly, their right to receive ideas and information without interference as guaranteed by section 39 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Article 9 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (Cap A9) Laws of the Federation of Nigeria, 2004.

ii. A DECLARATION that the fine of Three Million Naira (N3,000,000) imposed on each of ARISE TV, CHANNELS TV and AIT indeed constitutes an interference to the Applicant’s members’ right to freedom of expression, particularly, their right to receive ideas and information without interference guaranteed by section 39 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Article 9 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (Cap A9) Laws of the Federation of Nigeria, 2004.

iii. A DECLARATION that the respondent not being a judicial body lacks the power to impose fines on any broadcaster, including fines imposed on ARISE TV, CHANNELS TV and AIT and the imposition of such fines is null and void. 

iv. A CONSEQUENTIAL ORDER of setting aside the fine of Three Million Naira (N3,000,000) imposed on each of ARISE TV, CHANNELS TV and AIT as same was unlawfully imposed.

v. A PERPETUAL INJUNCTION restraining the Respondent, its officers, agents and/or representatives from imposing sanctions or fines or excessive, disproportionate, unlawful and indeed unconstitutional restrictions on television stations including ARISE TV, CHANNELS TV, AIT and other television or radio stations which will interfere with the Applicant’s members’ right to freedom of expression, particularly, their right to receive ideas and information without interference.

vi. AN ORDER of award of sum of One Million Naira only (N1,000,000) to the Applicant as the cost of this action.

vii. AND SUCH OTHER ORDER (S) as this honourable Court may deem fit to grant in the circumstance.

Speaking, after the suit was filed, Solomon Okedara noted that the protection of the Applicant’s members’ right to receive ideas and information is not just required for proper for their proper development in all facets of life but it is indeed a matter of their fundamental right to freedom of expression which cannot just be toyed with by any person or entity. Okedara further noted that ensuring a free and independent media is not just a matter of discretion of the government or regulatory agency but a mandatory requirement for a democratic society.

  

What You Need To Know About The World Trade Organization

What You Need To Know About The World Trade Organization

The World Trade Organization is an intergovernmental organization that is concerned with the regulation of international trade between nations. It was founded on the 1st of January, 1995 and has 165 members.

The WTO was born out of negotiations, and everything the WTO does is the result of negotiations. The bulk of the WTO’s current work comes from the 1986–94 negotiations called the Uruguay Round and earlier negotiations under the General Agreement on Tariffs and Trade (GATT). The WTO is currently the host to new negotiations, under the ‘Doha Development Agenda’ launched in 2001.

Some of its duties include;
–  It is an organization for trade opening.

– It is a forum for governments to negotiate trade agreements.

– It is a place for them to settle trade disputes.

– It operates a system of trade rules. Essentially, the WTO is a place where member governments try to sort out the trade problems they face with each other.

Nigeria has been a WTO member since 1 January 1995 and  a member of GATT since 18 November 1960. Nigeria, on 9 June 2020, nominated Dr Ngozi Okonjo-Iweala for the post of WTO Director-General to succeed the current Director-General, Mr Roberto Azevêdo, who has announced he stepped down on 31 August 2020.

The nomination period for the 2020 DG selection process ended on 8 July, with eight candidates nominated by their respective governments. On 31 July, the General Council agreed that there would be three stages of consultations with WTO members commencing on 7 September to assess their preferences and to determine which candidate is best placed to attract consensus support.

The General Council Chair announced on 18 September the results of the first round of consultations and the five candidates advancing to the next stage. On 8 October, he announced the results of the second round of consultations and the two candidates advancing to the third round.

Nigeria’s Ngozi Okonjo-Iweala is slated to be the first woman & African to lead the institution. However, the US has has refused to support her candidacy. Final outcome will now be decided Nov 9!

Security, Welfare And Legitimacy – Nonso Anyasi

Security, Welfare And Legitimacy – Nonso Anyasi

The Government of the Federal Republic of Nigeria is
guided by the fundamental objectives and directive principles of state policy
as contained in Chapter II of the Constitution of the Federal Republic of
Nigeria 1999 (as amended). The most fundamental objective and primary purpose
of any government that is founded on the Constitution shall be the security and
welfare of the people. Accordingly, the Government (including the federal and
state governments) must prioritize the security and welfare of its Citizens at
all times. This is by virtue of the provisions of Section 14(2)(b) of the
Constitution.

It is a fundamental principle of interpretation of
Statutes and the Constitution that sections/provisions of the law are not read
in isolation, but are rather read as a whole. Therefore, when trying to
understand what the drafters of the Constitution intended in Section 14(2)(b)
of the Constitution, it is important to read the said subsection together with
the provisions of the preceding Section 14(1) and 14(2)(a) of the Constitution.

Section 14(1) of the Constitution provides thus:

“Section 14(1) – The Federal
Republic of Nigeria shall be a State based on the principles of democracy and
social justice.”

Section 14(2)(a) and (b) provides thus:-

“Section 14(2) –  It is hereby, accordingly,
declared that –

(a)  sovereignty belongs to the people of Nigeria from whom government through
this Constitution derives all its powers and authority;

(b)   the security and welfare of the
people shall be the primary purpose of government; and

(c)  The participation of the people in the government shall be ensured in
accordance with the provisions of this Constitution.”

The marginal note of Section 14 of the Constitution is
termed as “the Government and the people.”
Therefore, a community reading of the entire provisions of Section 14 of the
Constitution (together with the marginal note) evinces the intention of the
framers of the Constitution to vest the sovereignty of the Federal Republic of
Nigeria in the people from which the Government is to derive all its powers and
authority through the Constitution. The importance of the provisions of Section
14(2)(a) of the Constitution is that it makes the Government directly
answerable to the people who donate sovereignty to it. Hence, a direct social
contract is created by virtue of this provision, in which the people donate
power to the Government, and in return, the Government is to perform the
various functions and responsibilities stated in the contractual document: the
Constitution. The chief responsibility of the Nigerian Government by virtue of
this Constitution is the security and welfare of the people.

The precise words of this section of the Constitution implies
that the Nigerian Government (including the federal and state governments) must
be preoccupied and concerned with the security and welfare of the citizens at
every point in time. Any Government that refuses to preoccupy itself with this
primary responsibility of prioritizing the security and welfare of the people
would therefore lack the sovereign backing of the people.

In the same vein, by virtue of the provisions of
Section 14(1) of the Constitution, the Nigerian Government (both federal and
state Governments) must be premised on the principles of democracy and social
justice at all times. Democracy as famously described by Abraham Lincoln is the
Government for the people, of the people and by the people. The intention of
the drafters of the Constitution is more pronounced when the provisions of
Section 14(1) is juxtaposed with the definition of democracy and the provisions
of Section 14(2) of the Constitution which points to the unassailable
conclusion that any Government which is not “for the people” and which cannot
provide security and welfare for its people does not qualify to be a Legitimate
Government as intended by the framers of the Constitution.

The provisions of Section 1(2) of the Constitution lends
further credence to this interpretation.
The said Section 1(2) provides thus:

“The Federal Republic of Nigeria shall
not be governed
, nor shall any person or group of persons take control of
the government of Nigeria or any part thereof, except in accordance with the
provisions of the Constitution
.”
(underlining ours).

The simple and literal meaning of this section of the
precious and organic document called our Constitution is that Nigeria shall
only be governed in accordance with the provisions of the Constitution.
Therefore, any attempt to govern any part of Nigeria in such a way that
deviates from the express words of the Constitution will amount to an
illegality and an unconstitutionality. Hence, any Government which does not pay
credence to the provisions of the Constitution is dabbling in illegality.

It is trite that sovereignty is one of the sine qua non for any legitimate
government. Any Government that does not possess or cannot trace its sovereignty
is at best, a puppet government as it lacks the autonomous quality to operate
as a State strictu sensu.  

The fulcrum of this article has been on the
interpretation of Section 14 of the Constitution of the Federal Republic of
Nigeria 1999 (as amended). However, it has been argued that the provisions of
Section 14 which falls under Chapter II of the Constitution is non-justiciable
by virtue of the provisions of Section 6(6)(c) of the Constitution which
provides thus:-

“Section 6(6) – The judicial powers
vested in accordance with the foregoing provisions of this section –

(d) Shall not, except as otherwise provided by this Constitution, extend to
any issue or question as to whether any act or omission by any authority or
person or as to whether any law or any judicial decision is in conformity with
the Fundamental objectives and Directive Principles of State Policy set out in
Chapter II of this Constitution;”

This writer submits that the non-justiciability of the
provisions of Chapter II of the Constitution does not render the entirety of
that Chapter otiose or moot. The provisions of Section 6(6)(c) of the
Constitution only serves to prevent the judiciary – the Courts – from enquiring
into the validity of any act or omission done, or not done, pursuant to the
provisions of Chapter II of the Constitution. In other words, the provisions of
that Chapter cannot be enforced or questioned in a Court of law.

However, this does not mean that the provisions of
Chapter II are hereby rendered academic and of no practical purpose. The Courts
are set up to determine civil rights and obligations of Nigerian Citizens.
(Please see Section 6(6)(b) of the Constitution). However, as earlier
established, sovereignty is vested in the people by virtue of the Constitution
and it is through this Constitution that the Government exercise all authority
and powers which it purports to have. It has also been established that
sovereignty is a fundamental element which every government must possess before
it can purport to operate as a state.

Therefore, this writer submits that any Government
which cannot confidently tick all the important boxes contained in Section 14
of the Constitution is an unconstitutional government. For the avoidance of
doubt, any Nigerian Government which cannot boast of:-

a.     being based on the principles of
democracy and social justice or which does not listen to the wishes of the
people; and

b.     placing premium on the security
of welfare of the people at all times; and

c.      allowing the people to directly
participate in the government in accordance with the provisions of the
constitution;

is an illegitimate government and one does not need
the Courts to invoke its judicial powers under Section 6 of the Constitution to
declare it as such. Another fundamental element of statehood (apart from
sovereignty) is equal recognition by other states.  A Government which purports to be an
autonomous government needs to be recognized as such by other sovereign
Governments else that Government will not be seen by the international
community as the machinery of the state through which the will of its people is
formulated. Such a Government which is not afforded sovereign status in the
international community will find it difficult protect the interests of its
people.  

Therefore, any Nigerian Government which cannot show
that it can confidently secure the lives and properties of citizens within its
territory has no business in parading itself as an autonomous government. In
addition, when such government is notorious for abusing the principles of
fundamental principles of democracy and social justice, such a government
stands the risks of losing its statehood in the international community.

 

I am Oluwanonso_Esq on Twitter.

With Only About 20 Months Left, Sign This Petition For INEC To Resume Continuous Voter Registration (CVR)  | Adedunmade Onibokun

With Only About 20 Months Left, Sign This Petition For INEC To Resume Continuous Voter Registration (CVR) | Adedunmade Onibokun


The Nigerian Electoral system is a work in
progress, and one of its challenges is voter registration and collection of
Permanent Voters Card (PVC). During the last election cycle, Continuous Voter
Registration (CVR) across the country commenced on 27th April, 2017 and ended on
the 31st of August, 2018. Though the exercise lasted for about 16
(Sixteen) months, many stakeholders and citizens called for an extension of the
exercise.

According to the Independent
National Electoral Commission (INEC), as at the 11
th of February,
2019, out of the 84,000,484 registered voters, over 11 million registered
voters were yet to collect their PVCs, a figure that represents 13.7% of the
total PVCs produced. Out of this figure, 7,817,905 PVCs were carried over from
the 2014 to 2016 registration exercises, while 3,410,677 are from the last
Continuous Voter Registration (CVR) exercise held between April 2017 and August
2018.

 

Beginning the process of voter registration
early allows INEC enough time to clean up the provisional register and print
the Permanent Voters Card (PVC) in good time for the general elections. Most
importantly, it allows citizens enough time to be duly registered and obtain
their Permanent Voters Card in order to be eligible to vote. The INEC Chairman
has stated that we are now 848 days from the 2023 Presidential Elections, which
allows INEC 27 months to plan for the election but only about 20 months to
carry out its Continuous Voter Registration, assuming it resumes the exercise
immediately.  

If 16 months was not enough time to carry out
a voter registration exercise in 2018, I believe we should be taking advantage
of the remaining 20 months. Moreso, because of the millions of voters who
reached voting age, after the 2019 Elections, and the number of voters who
were left unregistered in 2018, it is safe to assume that INEC has its work cut
out for it as we prepare for the 2023 Elections.

So why hasn’t INEC resumed the Continuous
Voters Registration exercise, despite the promises made in 2018, that the
process will resume immediately after the 2019 elections? Are we already
planning to fail at the 2023 elections?

Please sign this petition for INEC to resume Voter Registration ahead
of the 2023 General Elections http://chng.it/tkzkp2JY via
Change
.org

Adedunmade Onibokun 

Partner, AOC Legal 

dunmadeo@yahoo.com 

The #EndSARS Protest: What Next  – Adedunmde Onibokun

The #EndSARS Protest: What Next – Adedunmde Onibokun

 

 My fellow Nigerians,

The last few days have been pivotal in our desire
for a Nigeria, where justice, equity and fairness are the order of the day,
where our fundamental human rights to life, personal dignity and humane
treatment shall be respected. Our leaders, neighbours and the international
community have heard our call to action.

Our biggest achievements however are we have
shown the world our capacity for demonstrating empathy towards each other,
courage, leadership, fellowship and unity. Over the past few weeks not only did
we take responsibility for the growth of our country but we organized ourselves
in a way never before seen by young Nigerians. Most importantly, we were able
to secure the commitment and action from government and the Nigerian Police to
#EndSARS and #Endpolicebrutality in Nigeria.
 

 

However, the events of the last 48hrs has
shown us that we have not achieved our goal, the response of security forces to
the peaceful demonstration of young Nigerians show that the problem is not only
the Special Anti – Robbery Squad but also the need to reform the Nigerian
Police and promote credible and accountable leadership in Nigeria.

 

The peaceful protests are a start in the right
direction and we must ensure that the legacies of our fellow Nigerians who paid
the ultimate price in our struggle for sustainable governance in Nigeria are
not wasted. That the sacrifice of everyone who participated in the #EndSARS
campaign, sustained injuries and were subject to threats to their lives are not
for nothing.

 

To achieve this I propose the following –

 

1.    
The #EndSARS Protests

While protests is a
strong way of showing disapproval, as seen from recent events, it is not immune
to manipulation and can easily be turned into a riot. Holding a protest though
the most popular way of showing dissent is only one of the over hundred ways of
non – violent action and I urge young Nigerians to become creative in using the
peaceful protests to send clear messages. Demonstrators should become more
strategic with the protest, they must always be peaceful, organized and not
fall below the recent standards that have been applauded by everyone.

 

2.    
Political Will &
Participation

You will agree with me that political Will is needed to create the type of democracy we want,
however, the political structures of today are in the hands of career
politicians who have led this country since the 70s and 80s and have shown time
and time again that their loyalty is to themselves. It is high time young Nigerians
grab this political structures and we can achieve this by participating
actively in governance and politics. Let us register to vote in huge numbers
and join political parties so we can influence the structures from the inside.

 

3.    
Community Outreach

A lot of
misinformation has been peddled both online and offline. It is our duty to
begin to reach out to stakeholders in our communities and carry them along in
our plans for a better Nigeria. Those touts who are not engaged will be used by
unscrupulous politicians to scuttle any progress that is achieved, so it’s
important that we bring everyone on onboard as well. Like it is said, all
politics is local so we must begin to use our local contacts in asking for accountability
and governance from our leaders.

 

4.    
Facilitators

The #EndSARS movement
has no perceived leadership structure but it has leaders, we successfully crowd
sourced a leadership structure that saw everyone taking responsibility. We had
people like @fkabudu, @moechievous and @adetolaov take up the responsibility of
organizing and in the process built a national legal aid structure. We had
volunteers in teams such as legal, emergency services, security, welfare and
others.

I want to urge everyone
to continue to lead by example. We are all stakeholders in the clamour for a
better Nigeria and the victory of one is a victory for all.

 

5.    
Engagement

We cannot stop
engaging with stakeholders and government representatives as we have been doing
recently. In fact, we must increase our level of engagement at this time. Contact
any and all government representatives you know and engage them on their
respective deliverables. We must monitor and supervise the government and our
elected officials to ensure that they are carrying out their duties and
functions satisfactorily.

 

In the words of Patrick Lumumba, “The day Nigeria wakes up, Africa will never
be the same again
”.  Young Nigerians
have woken up and our struggle is not only for a better Nigeria but for a greater
Africa. The world is counting on us, our African brothers and Sisters are in
solidarity with us and it is time we show the leadership that is lacking in our
polity.

Thank you for reading. God bless the Federal Republic of Nigeria. #EndSARS 

Adedunmade is a Nigerian Lawyer, Author and
Blogger. Youcan contact him via @adedunmade on social media and via dunmadeo@yahoo.com

Why Impeachment Proceedings Should Begin Against President Buhari Immediately

Why Impeachment Proceedings Should Begin Against President Buhari Immediately

If you are a friend, visitor
or lover of Nigeria, you are definitely aware of what is going on in the
country at the moment. Young Nigerians who signified their discontent with
police brutality through the #EndSARS hashtag had been staging peaceful
protests all over the country until recently, when the process led to loss of
lives and what is now being described as a full scale massacre of innocent demonstrators,
perpetrated by state agents and security forces.

Yesterday, 20th
of October, 2020, which is now called #BlackTuesday, the Nigerian government ordered
soldiers to open fire on demonstrators, an action which has now resulted into
the loss of tens of lives and also destruction of both public and private
property. Social Media is currently awash with videos and photos of security
agents killing unharmed citizens, some while the citizens were seen fleeing for
their lives.

So why should President
Buhari be impeached? If you are familiar with the antecedents of this
government, you will agree that they have cracked down hard on dissent and have
regarded any questions from the people as a direct challenge to their
administration. Take a cue from Sowore, who called for a revolution in the country
and how his fundamental human right were breached by State Agents and the Attorney
– General of the Federation was heard in several interviews saying that any
attempt to replace the government by unconstitutional means will be met with
force. It is evident that this government is incapable of providing the kind of
leadership that this country needs going forward, for instance since the deaths
of Nigerian youths, the President has failed, refused and neglected to address
the nation, despite a call from all areas of the country and most recently by
the National Assembly. President Buhari still remains silent.

A look at our constitutional
provisions, particularly Section 143 (2) states that a President can be impeached
whenever a notice of any allegation in writing signed by not less than
one-third of the members of the National Assembly:- (a) is presented to the
President of the Senate; (b) stating that the holder of the office of President
or Vice-President is guilty of gross misconduct in the performance of the
functions of his office, detailed particulars of which shall be specified.

The above paragraph now begs
the question what can be described as “gross misconduct” under the
constitution? The Supreme Court in Inakoju
& Ors vs. Adeleke & Ors (2007) LPELR – 1510 SC
, describes it to
mean “a grave violation or breach of the provisions of the Constitution or a
misconduct of such nature, as amounts in the opinion of the National Assembly
to be a gross violation.

What has President Buhari
done that may be seen as a gross violation of the Constitution?

1.      President
Buhari breached the fundamental rights of Nigerians when he ordered the military
to shoot at citizens who were demonstrating for an end to police brutality, in
breach of Section 33 of the Constitution, which provides that; Every person has
a right to life, and no one shall be deprived intentionally of his life, save
in execution of the sentence of a court in respect of a criminal offence of
which he has been found guilty in Nigeria.

 

2.  President
Buhari breached the rights of Nigerian Citizens to lawful assembly as provided
in Section 40 of the Constitution, when he ordered security operatives to disperse
lawful and peaceful demonstrators through violence.

 

From the above, it is
evident that by President Buhari ordering and/or condoning the shooting of
unharmed demonstrators, the President has directed the very killing of the
citizens he swore to protect and if this is not an impeachable offence, I don’t
know what is.

 

Adedunmade Onibokun

Federal High Court Sets Aside N24 Billion Naira Order Against CBN

Federal High Court Sets Aside N24 Billion Naira Order Against CBN

On Tuesday, 13th October 2020, the Federal
High Court, delivered a ruling, setting aside the Garnishee Order Nisi made
against the Central Bank of Nigeria in Suit No: FHC/ABJ/CS/563/2020 between Bendu
Peter Services Nigeria Limited & Anor V. Guaranty Trust Bank Plc & Anor.

Bendu Peters Services Nigeria Limited, instituted a
suit before the High Court of the Federal Capital Territory, Abuja, challenging
the actions of the Guaranty Trust Bank in freezing, suspending and refusing to
allow cash withdrawal from her account when requested.

On the 23rd of March 2020, the High Court
delivered its judgment and amongst the declaratory reliefs and, consequential
orders granted in favour of the Plaintiff, the court also awarded a judgment
sum of N24,282,017,249.00 (Twenty-Four Billion, Two Hundred and Eighty-Two
Million, Seventeen Thousand, Two Hundred and Forty-Nine Naira) against Guaranty
Trust Bank.

In a bid to reap the fruits of the judgment gotten at
the High Court, Bendu Peters Services Nigeria Limited, instituted garnishee proceedings
at the Federal High Court, Abuja and sought for the immediate attachment of the
sum belonging to Guaranty Trust Bank Plc in the custody of the Central Bank of
Nigeria.

In compliance to the Garnishee Order Nisi, ordering
the Central Bank of Nigeria to appear in court and to disclose by evidence,
reasons why the Order Nisi should not be made absolute against it, in which
circumstance, the counsel to the Central Bank of Nigeria, O. M. Atoyebi, SAN and
other counsel in the matter now before the Federal High Court Abuja, filed all
necessary processes alongside an objection, wherein they also sought the order
of court to set aside the entire proceedings and on the part of the Bank in
particular, counsel sought the order of court to set aside the Order Nisi made
against the Bank.

 The court in
considering the application filed before it, held that the failure of the Plaintiff
now Judgment Creditor at the Federal High Court to disclose the pendency of an
application for the stay of execution of the Judgment obtained from the High
Court of the Federal Capital Territory, Abuja on the 23rd of March
2020, deprived the court of its jurisdiction to entertain the garnishee
proceedings and on that rationale, the court vacated the Order Nisi made
against the Central Bank of Nigeria and consequently dismissed the action in
its entirety.

 

 

 

The Menace Of The Nigeria Police Force Special Anti – Robbery Squad (The Group of Death): Beyond Its Existence | Debo Oladinni Esq.

The Menace Of The Nigeria Police Force Special Anti – Robbery Squad (The Group of Death): Beyond Its Existence | Debo Oladinni Esq.

                                                         

In recent days, the clamour
by Nigerians across the country that the Special
Anti-Robbery Squad (SARS)
 be proscribed due to the apparent excesses
of members of the death squad (which has reached an alarming crescendo), is
fast gathering momentum. Prior to this time, SARS, as a unit
was an elephant in the room that no one was willing to
frontally confront or demand for the curbing of the excesses of a good number
of its dare devil personnel masquerading as law enforcement officers
.

Founded in 1992SARS, was
setup as a unit under the umbrella of the Force Criminal Investigation
and Intelligence Department of the Nigeria Police Force (NPF)
 to
confront the rising cases of armed robbery and kidnapping in Lagos
State
. Sadly, like an aircraft which has overshot and skidded off the
runway in an airport in an attempt to land, SARS has
deviated/lost sight of the very essence why it was established.
Essentially, SARS has gone beyond its scope of duty, and is
fast assuming the toga of a terrorist group in the minds of well-meaning
Nigerians.

Unfortunately, a sizeable
number of men of SARS have metamorphosed into blood thirsty
rabid dogs roaming around seeking for whom to devour. How ironic that men of
this unit who are meant to protect the lives of law abiding Nigerians going
about their legitimate businesses have turned around to maim, harass, decimate
and exterminate the lives of Nigerians, whom, ordinarily, they are paid to
protect. Many families have over the years, been thrown into deep sorrow and
gnashing of their teeth, due to the loss of lives of their loved ones at the
hands of a good number of these dare devil and trigger happy angels of death
in SARS.

Paradoxically, the
acronym SARS reminds me of the deadly and life threatening
viral respiratory disease called Severe Acute Respiratory Syndrome
(SARS)
 triggered by a SARS associated coronavirus,
which was first discovered during an outbreak in China at the
tail end of the month of February 2003. To my mind, there is a thin
line of difference between SARS as a virus and SARS as
a unit  under the Force Criminal Investigation and Intelligence Department
of the Nigeria Police Force (NPF)
. Both are life threatening and indeed
snuff out lives. Indeed, the fear of SARS is fast becoming the
beginning of wisdom, as if you are unfortunate to land in the dragnet of its
personnel, life becomes short, nasty and brutish. The fundamental human
rights
 of Nigerians enshrined in section 33 (right to life),
section 34 (right to dignity of human person) section 35 (right to personal
liberty), and section 41 (right to freedom of movement)
 of the
Constitution of the Federal Republic of Nigeria 1999 (As Amended) mean
absolutely nothing to a good number of the blood thirsty and trigger happy
angels of death operating in SARS.

 

Recently, the Inspector-General
of Police, Mohammed Adamu
 issued a circular banning SARS and
other tactical squads from routine patrols, due to the public outcry against
personnel of SARS, who engage in extra-judicial killings, brutality
and extortion etc. However, a sizeable number of well-meaning Nigerians via
street protests, issuance of public statements, agitations on social media
platforms etc. are clamouring for the outright ban of SARS.

While this is a plausible
and legitimate demand, I have my serious doubt if the Government would
accede to such a demand in its entirety. Assuming without conceding that
the Government agrees to out rightly disband SARS, the
personnel of the proscribed unit would be drafted to other units of the Nigeria
Police Force
. In essence, cases of extra-judicial killings, brutality and
extortion would not still abate. Furthermore, a question that agitates my mind
at this juncture is: How often do the men of the NPF undergo mental
health/emotional evaluation to ascertain whether or not they can make use of
weapons appropriately?
 In this wise, the Government should
seriously consider partnering with psychologist/emotional therapists who would
from time to time conduct trainings/tests on the men of the NPF.
Mental health wellbeing experts like Oyinkansola Alabi (a leading
Trainer, Speaker and Founder of Emotions City),
 amongst others can be
partnered with to ensure the emotional/psychological needs of men of the NPF are
well addressed. An emotionally and mentally disturbed police officer is a
disaster waiting to happen.

Going forward, I want to
appeal to the Government and the IGP to
embark on holistic reforms which would reposition the NPF, in terms
 of the yardstick for recruitment of its personnel, welfare and other
ancillary issues to ensure the production of better trained and equipped police
officers. Nigeria as a country, is sitting on a keg of gunpowder that might
blow up anytime soon. As for men of the NPF within the system,
there is a need for periodic training. No doubt, the issues bedevilling
the NPF are a fallout of the endemic corruption that is
affected every stratum of the Nigerian society. It is hoped that the Government would
give the IGP the needed support/wherewithal to reform
the NPF in its entirety. Permit me to conclude by stating that
a nation that does not protect/safeguard the fundamental rights of its citizens
is encouraging citizens to rely on self-help, which brings to the front burner
of my mind the evergreen postulation of Nelson Mandela (former
President of South Africa and Respect World Citizen),
 who posited at
the inauguration of the Constitutional Court at Johannesburg, South
Africa, on 14th February, 1995
 that: “People
come and go. Customs, fashions and preferences change. Yet the web of
fundamental rights and justice which a nation proclaims must not be broken.”

NOTE: Shortly after I concluded
my write-up, as I rightly envisaged, IGP Mohammed Adamu, has disbanded SARS
nationwide today 11th October, 2020 at about 2:00pm vide a live
broadcast. While this is good news for agitators of the disbandment of SARS, I
still have my serious doubts that it would lead to the drastic reduction of
extra-judicial killings, brutality etc. The redeployment of this same set of
officers in SARS would not change their orientation overnight. A lot of
re-orientation, retraining etc. must be done as soon as possible.

 

Debo Oladinni, Esq.

11th October, 2020

 

Arbitral Awards As Sovereign Debt Risks: Impact Of P&Id And Eurafic Cases | OAL

Arbitral Awards As Sovereign Debt Risks: Impact Of P&Id And Eurafic Cases | OAL

 

Background

Deriving
from the sovereignty principle, sovereign 
debt literary refers to how much a country’s government owes. Often times the primary source is
through outside borrowing hence it can be defined as national or
government 
debt because
the word “sovereign” connotes national government. However, due to its
nationalistic nature and the fact that internal national borrowing is rarely
existent especially in developing economies like Nigeria, it generally refers
to how much a
country owes
to external creditors. While borrowing remains the principal source of
sovereign debts, debts also accrue from other sources and one of such is
Judgement Debt(s) from Court Cases or Arbitral Awards arising from Arbitral
proceedings in disputes involving federal government. Simply explained, it
implies what a National government owe to foreign Judgement Creditors. It is
imperative that developing nations focus on mitigation, reduction or management
of judgement debts or arbitral awards that are of such critical importance or
volume that they portend risk for a country in form of sovereign debt risk. The
reason is that huge exposure to national debts of whatever nature and form has adverse
economic and investment implications.

 

P&ID and Eurafic Power
Cases

 

In
January 2017, an ad-hoc arbitral tribunal sitting in London by a majority of
two is to one made a final award of $6.597 billion, together with interest at
the rate of 7% starting from 20 March 2013 until the payment is made, in favour
of Process and Industrial Development Limited (“P&ID”), a company based in
the British Virgin Islands and against the Federal Government of Nigerian (“FGN”).
This was following an alleged
breach of a gas supply and processing agreement (“GSPA”) between the FGN and P&ID,
which was signed on 11 January 2010, based on which, FGN was to supply natural gas to P&ID’s production facility over a
20-year period. In return, P&ID would process the wet gas by removing
natural gas liquids and return approximately 85% of the processed gas to the
government at no cost to the Nigerian government. However, according to P&ID,
FGN renounced their obligation under the agreement by failing to take any steps
to supply the wet gas to the processing facility for three years. Consequently,
in March 2013, P&ID commenced
arbitration proceedings against the FGN pursuant to Clause 20 of
the agreement and
a final award of $6.597 billion was made by the
tribunal. P&ID was granted leave to enforce the
arbitral tribunal’s final award which now stands at about $9.6 billion by the Queen’s
Bench Division of the English Commercial Court. However, on 4 September 2020,
Sir Ross Cranston of the Queen’s Bench Division of the High Court of England
granted an application made by FGN for extension of time to challenge the
award. The application was granted on the ground that there is prima facie
evidence that the award was obtained by fraud and that Nigeria ought to be
allowed time to prove the allegation of fraud.

 

Also, 28 January 2017, an arbitral tribunal sitting at the London
Court of International Arbitration (“LCIA”) awarded a combined sum of ₦1.12
billion to Eurafric Power Limited (“Eurafric Power”) against FGN for the
alleged breach of a share sale agreement between Eurafic Power and FGN over the
assets of Sapele Power Station. A High Court in United Kingdom presided over by
Justice Popple Well subsequently recognized the award as a court judgment on 15
January 2018. As at 23 October 2019, Eurafric Power has identified about 33
assets belonging to the government of Nigeria and situate in England over which
it intends to enforce the award if the Nigerian government fails to pay the
award sum.

 

These incidents generated massive public interest, accusations and
counter-accusations of professional negligence and how an execution of such
heavy judgements would affect a large chunk of Nigeria’s revenue position. The
economy is already bleeding and the Nation became wary of further economic
pillage. Expectedly, it has revived or shown the need for Nigeria to review her
arbitration policy especially as it affects to international commercial agreements
to which Nigeria is a party. This article therefore examines the impact of these
arbitral awards and the consequent enforcement proceedings commenced in foreign
jurisdictions vis-à-vis the sovereignty of Nigeria and the impact of these
debts on the nation’s economy.

 

Enforcement
of Arbitration Awards

 

Arbitration as a dispute resolution mechanism is only valuable to
the extent that parties can enforce an agreement to arbitrate and a resulting
award. Ordinarily, international law does not recognise the obligation to
arbitrate or enforce an arbitral award. However, contracting states can by
agreement impose such obligation on themselves. Therefore, where a state enters
into a bilateral treaty which provides for arbitration in the event of dispute,
the state is bound by the agreement to arbitrate and an award from such arbitration
will be enforced accordingly. This is in line with the principle of pacta sunct
servanda in international law.[1]

 

Further
to the foregoing, the New York Convention of 1958 (“the Convention”) makes
provisions for the direct recognition and enforcement of arbitral awards as
judgments of the courts of any state party, subject to review by that court on
the grounds of fairness, non-arbitrability, public policy and due process. As
at August 2020,
the New York Convention has 165 state parties. By Article III of the
Convention, these state parties have the obligation, subject to the conditions
set forth in the Convention, to recognize arbitral awards as binding and
enforce them in accordance with the rules of procedure of the territory where
the award is relied on. Thus, foreign arbitral awards are enforced by state
parties to the Convention in the same manner and without additional obligations
as domestic arbitral awards.

 

A person against
whom an arbitral award is sought to be enforced has the burden of establishing
the invalidity of the award. This burden may be discharged by proving one of
the grounds provided in Article V of
the Convention. These grounds
include: absence of a valid arbitration
agreement[2], lack of fair hearing[3], award in excess of jurisdiction
of the arbitral tribunal[4], improper composition or
procedure of the arbitral tribunal[5], award has not yet become
binding on the parties or has been set aside or suspended by a competent
authority in the country in which or under the law of the country in which it
was made[6]. In addition to the above
grounds, the court may on its own motion refuse to recognize and enforce an
arbitral award on the grounds that the subject matter of the dispute is not
arbitrable[7] and that recognition and
enforcement of the award will be contrary to the public policy of the country
of enforcement[8].

 

Generally, the courts
recognize and enforce international arbitral awards whenever possible. Thus,
application for recognition and enforcement under the New York Convention is seldom
refused.

 

Sovereign
Immunity

 

Under the doctrine
of sovereign immunity, a sovereign state may not, without its consent, be made
a defendant in the courts of another state. The policy behind this doctrine is
that national interest will be better served if disputes with parties who are related
to foreign powers are resolved through diplomatic negotiations rather than by
the compulsions of judicial proceedings. This doctrine has a number of
exceptions. The first is that where a vessel is the subject of controversy, a
claim of immunity will only succeed if the foreign government is able to show
that at the time the suit was filed, the ship was actually in its possession
and control.[9]
Secondly, foreign state-controlled corporations engaged in commercial
activities are usually subject to local jurisdiction. In addition to the
foregoing, sovereign immunity can be waived. In National City Bank v. Republic
of China
[10], the Republic of China had brought
suit to recover a bank deposit.
The bank filed a counterclaim based on defaulted treasury notes of the Republic. The plaintiff claimed sovereign
immunity as a defense to the
counterclaim. The Court held that the Republic had waived its immunity by bringing suit, and that the
counterclaim would be permitted
even though it did not arise out of the same transaction as the original claim.

 

The doctrine of
sovereign immunity has evolved over time and states have gradually shifted from
the concept of absolute immunity to the concept of restrictive immunity.
Absolute immunity is the traditional principle that a sovereign cannot be made
a defendant in the court of another state. On the other hand, restrictive
immunity makes a distinction between commercial activities and sovereign
governmental activities.[11] In many jurisdictions, a
foreign sovereign’s immunity from proceedings in local courts is recognised
with regard to sovereign or public acts (jure imperii) of the state and not
with respect to private acts (jure gestionis)[12]. Consequently, sovereign
states cannot invoke the shield of sovereign immunity for disputes arising from
or assets stemming from commercial activities. The rationale behind this is
that where the government of a sovereign engages in business activities, it is
necessary to enable persons doing business with them to have their rights
determined in court. In National City Bank v. Republic of China[13],
the majority of the court approved, in principle, the restrictive theory of sovereign immunity.

 

It must be noted
that in arbitral proceedings, arbitrators derive their powers from the
arbitration agreement. The arbitration agreement constitutes a waiver of
immunity from jurisdiction. However, in the absence of express words to that
effect, immunity from execution is not waived by entering into an arbitration agreement.
Therefore, while a sovereign may waive his immunity from being a defendant
before a foreign court, such waiver hardly applies to execution of judgments
and awards.

 

The
asset of a sovereign is usually immune from execution except where the
sovereign consents to the execution in writing or where the relevant property
is used or intended to be used for commercial purposes. In Donegal International v. Republic of Zambia[14], the English court accepted the following waiver of immunity
clause as effective consent to execution:

 

“If
proceedings are brought against it or its assets, no immunity from those
proceedings (including without limitation, suit, attachment prior to the
judgment, other attachment, the obtaining of the judgment, execution or other
enforcement) will be claimed by or on behalf of itself or with respect to its
assets.”

 

On
the other hand, in L R Avionics[15], proceedings were brought
to enforce a judgment (together with an arbitration award) against the Federal
Government of Nigeria. L R Avionics was granted permission to register the judgment
in England and it subsequently obtained a final charging order in respect of
premises located in London, which were owned by Nigeria. The London premises
were leased to a company for the purpose of providing Nigerian visa and
passport services, amongst other things. Nigeria applied to set aside the
charging order on the basis that the property was immune from enforcement. It
was accepted that the use by a state of its own premises to carry out consular
activities such as providing visa and passport services, could not be said to
be a use for commercial purposes within the meaning of Section 13(4) of the
State Immunity Act 1978. However, the Court had to consider the position if,
instead of handling the applications itself, the state had granted a lease of
the premises to a privately-owned company, to which the processing services
were outsourced. The court held that the London premises were not being used
for commercial purposes within the meaning of the State Immunity Act but were being
used for a consular activity which, even if outsourced, is only carried out on
behalf of the state.

 

In
Botas Petroleum Pipeline Corporation v.
Tepe Insaat Sanayii AS
[16], the Privy Council held
that the question of whether assets are state property is to be determined by
first considering whether the property was owned by the state or a separate
entity. Thus, the state must have some proprietary interest in the property for
immunity to be conferred. While separate entities may have close relationship
with the state, they are not covered by state immunity unless they are acting
“in exercise of sovereign authority”.

Additionally,
embassies, goods and monies held in banks account for a sovereign’s diplomatic
mission will not be generally available for enforcement.

 

A
Central Bank of a foreign sovereign is also given absolute immunity under
English law, subject to the written consent of the Central Bank. In AIC Limited v. The Federal Government of
Nigeria & Anor.
[17], the question before the court was whether funds in a bank account
in the name of the Central Bank of Nigeria were liable to execution if those
funds were used or intended for use for commercial purposes. The court held
that even where the use of the funds would be commercial, the property of a
Central Bank should not be subject to execution. This English court also considered
and applied this reasoning in Thai-Lao
Lignite (Thailand) Co. Ltd. v. Government of the Lao People’s Democratic
Republic
[18].

 

Arbitration
Awards as sovereign debt risks

 

Considering
the nature of arbitration and the minimal procedural delay in enforcing
arbitral awards, sovereign states may suffer debt risks on account of arbitral
awards made against them. First, such an arbitration award may be recognised and
enforced as a judgment of a court in any country that is a state party to the
New York Convention. Where an award is so recognised, the assets of the state
used for non-consular activities stand the risk of being attached to satisfy
the award.

 

It is
noteworthy that Eurafric Power has identified about 33 assets belonging to the
Nigerian government but situate in England, which are used for non-consular
activities and against which the company intends to enforce the arbitral award made
against the government of Nigeria. This was communicated through a letter by
the company’s counsel, Godwin Obla, SAN to the Attorney-General of the
Federation.

 

In
addition to identifying the assets a state judgment debtor and enforcing the
judgment debt against such assets,
where the award was made
by the International Centre for the Settlement of investment Disputes (“ICSID”),
being an organisation of the World Bank, the centre could utilise the capacity of
the Bank to compel compliance. It is also noteworthy that the World Bank may
aid a judgment debtor even where the award is not a product of ICSID arbitration;
in so far as the award is made against a member of the World Bank.

 

The Way
Forward

 

In the light of the foregoing, it is recommended that there is
urgent need to review all existing bilateral agreements to which Nigeria is a
party. Nigeria has over 30 Bilateral Investment Treaties (“BITs”) signed with
various foreign countries
, though only 15 of them are in force.
These BITs explicitly afford various forms of protection in cases of disputes
and provide a right of recourse to international arbitration. The BITs with
France, Germany, Korea, the Netherlands, and the United Kingdom provide
exclusively for ICSID arbitration. All the other BITs allow investors to pursue
an arbitration claim through ICSID or ad hoc arbitration in accordance with the
UNCITRAL rules or any other rules as the parties may mutually agree. It is
important to note that the seats of arbitration in these treaties are all
foreign. In any case, Nigeria is bound by these provisions of these BITs as
they have the force of law by virtue of being treaties as identified under Article
2 (1) (a) of the Vienna Convention on the Law of Treaties (VCLT), to which
Nigeria is a party.

 

However, by submitting to a foreign jurisdiction in a BIT, Nigeria
waives its sovereign immunity. Therefore, she can be made a party to
proceedings in a foreign court. The case of
Libyan American Oil Co. (LIAMCO) v. Socialist People’s Libyan Arab Jamahirya[19] illustrates this. Around 1973/1974,
Libya nationalised LIAMCO’s rights under petroleum concessions that it had
granted nearly twenty years earlier. Dissatisfied with the compensation for its
interest and equipment, LIAMCO pursued arbitration and an award was rendered in
Geneva in favour of LIAMCO. When LIAMCO tried to enforce the award in the
United States, Libya opposed it by claiming, inter alia, that the Libya is
immune from proceedings in a foreign jurisdiction. The court denied Libya’s sovereign immunity claim on the
grounds that by agreeing to arbitration governed by foreign law, Libya waived
its sovereign immunity.

 

In
the light of the foregoing, there is therefore an urgent need to review these existing
BITs and all future BITs. It is suggested that future treaties be negotiated to
include a dispute resolution provision with Nigeria as the seat. With respect
to existing BITs, it is suggested that the provisions be renegotiated with the
aim of making Nigeria the seat of arbitration. Where renegotiation is not
possible, it is further suggested that the BITs be revoked. While it may be a
concern that revocation or termination of BITs may discourage investors and
reduce the inflow of foreign direct investments (“FDI”), recent studies have
shown than investment inflows are driven by a number of facts and the presence
of BITs is clearly not a determining factor.[20]

 

For
instance, Ecuador began to terminate BITs in 2018 and as at 2018, the overall
FDI stock into Ecuador increased by 38 percent, from $13 billion to $17
billion. Notably, after Ecuador terminated its investment treaty with Uruguay
in 2008, FDI from Uruguay into Ecuador increased by 420 percent, from an annual
average of $6.3 million before termination to $32.6 million after termination.
Similar indices are seen in Bolivia, South Africa and Indonesia.

 

The
article, therefore, calls on the Federal Government of Nigeria through the
office of the Attorney-General of the Federation, the Minister for Trade and
Investment and the National Office on Trade Negotiation to set up a committee
for the review of all bilateral agreements between Nigeria and foreign
entities.

  

Furthermore,
there is need to amend relevant statutes that govern investment promotion and
arbitration in Nigeria. This will help not only to protect Nigeria’s sovereign
immunity but also to improve the arbitration framework in Nigeria and make
Nigeria an arbitration hub.

 

It
is noteworthy that some countries are already taking steps in this regard. For
instance, South Africa enacted the Protection of Investment Act (the “PIA”) in
2015. The PIA creates a framework for the resolution of investment disputes in
South Africa. Section 13 of the PIA provides that where a foreign investor is
aggrieved by an action of the government, he may request the Department of
Trade and Industry to appoint a mediator to resolve the dispute. Alternatively,
the investor may approach any competent court, independent tribunal or
statutory body within South Africa for the resolution of such an investment
dispute.

 

Taking
a cue from the foregoing, especially given that investment treaty arbitration
is statute driven, there is need to review the relevant statutes governing
investment arbitration in Nigeria. These statutes include the Nigerian Investment
Promotion Commission Act, Cap N117, Laws of the Federation of Nigeria 2004
(“NIPC Act”). Specifically, Section 26 of the NIPC Act provides that disputes
between Nigeria and foreign investors shall be determined in accordance with
the provisions in the BITs. It is suggested that the provision of this section
be amended to include a proviso that notwithstanding anything contrary contain
in the BITs, the seat of the arbitration must be Nigeria where the dispute
arises between an investor and the Government of Nigeria.

 

It
is also recommended that the provisions of Arbitration and Conciliation Act
(Cap A18, Laws of the Federation of Nigeria 2004) (“the ACA”) which defines
international arbitration in Section 57(2)(b)(i) and (d) to include an
arbitration that has its place in a foreign country and where the parties agree
that the arbitration should be treated as an international arbitration should
be amended. Section 16 of the ACA which allows the arbitral tribunal to
determine the place of arbitration deserves a review to ensure it meets demands
of current reality in terms of national policy thrust vis-à-vis international frameworks.

 

Additionally, there is need for diligence in prosecuting
arbitration cases involving Nigeria. While granting Nigeria extension of time
to challenge the award in the P&ID case, the Queen’s Bench Division of the
High Court of England per Sir Ross Cranston noted that “there is strong prima
facie
case
that (P&ID) main witness in the arbitration, Mr Quinn, gave a perjured
evidence to the Tribunal, and that contrary to that evidence, P&ID was not
in the position to perform the contract”. The judge also noted that there is
possibility that the counsel to the Nigerian government at preliminary and
jurisdiction stages of the arbitration was corrupted, in view of statements
made to the Economic and Financial Crimes Commission (“EFCC”) by the then Legal
Director of NNPC and the legal adviser to the Ministry of Justice in which both
persons admitted receiving $100,000 each from the said counsel while the
arbitral proceedings are pending.

 

Nigeria
should not merely rummage on allegations of corruption upon which it secured
its current reprieve but the consequential lack of broader policy,
institutional and professional protocols on Arbitration undertakings especially
where the Country is a party as a sovereign entity. The corruption allegations
might have buoyed up the UK Court in granting the relief sought by Nigeria for
extension of time, but the lessons should be of broader significance in terms
of fostering attitudinal change in people and procedure. For instance, a
National practice framework on international commercial arbitration and
adoption of critical principles that emphasize and guarantee sincerity,
selflessness, loyalty, conscientiousness and diligence in arbitral proceedings
to which Nigeria is a party, would be of wholesome effect. This will help to
curb the legal risks and economic implications of having an award rendered
against Nigeria.

 

 

 

Conclusion

 

Interestingly, the Honourable Attorney-General of the Federation,
Mr. Abubakar Malami has announced the Federal Government’s intention to launch
the National Arbitration Policy. Originally the brainchild of Dr. Olisa
Agbakoba, SAN, the policy is premised upon the concept that arbitration
agreements in respect of all disputes arising from contractual relationships in
Nigeria will have Nigeria as the seat of arbitration.

 

It is recognized that the implementation of this policy will
require statutory interventions and amendments, legislative advocacy, regulatory
frameworks review, policy directives and extensive stakeholders’ consultations
to ensure that the basic principles of international arbitration are upheld and
avoid the risk of engendering the Country to become an arbitration pariah state.
For instance, statutes which contain provisions on arbitration, especially
investment arbitration ought to be amended to accommodate this policy.

 

It is expected that with the implementation of the National
Arbitration Policy bearing in mind the suggestions made in this paper and other
critical opinion and contributions harmonized through series of consultations, Nigeria
would achieve a highly recognized and balanced status as an Arbitration
destination supported by systems that ensure the exposure to legal and economic
risks on account of arbitral awards rendered and enforced in foreign
jurisdictions will be greatly reduced.

 

 

Victor Akazue
Nwakasi                            Ugochukwu
Eze

Partner/Head– ADR/Arb. Group               
Associate Counsel, ADR/Arb.Group



[1] See: Fedax NV v.
Republic of Venezuela
37 ILM 1391 (1998).

[2] Article V (1) (a).

[3] Article V (1) (b).

[4] Article V (1) (c).

[5] Article V (1) (d).

[6] Article V (1) (e).

[7] Article V (2) (a). See also Libyan
American Oil Co. (LIAMCO) v. Socialist People’s Libyan Arab Jamahirya
482
F. Supp. 1175 (D.D.C. 1980), vacated without op., 684 F.2d 1032 (D.C.
Cir. 1981).

[8] Article V (2) (b). See the dictum in Transmarine
Seaways Corp. of Monrovia v. Marc Rich & Co., A.G.
480
F. Supp. 352 (S.D.N.Y. 1979).

[9] The
Roseric,
254 Fed. 154 (D.N.J. 1918), The Pesaro, 255 U.S. 216(1921), Republic
of Mexico v. Hoffman,
324 U.S. 30 (1945)
and The Beaton Park, 65 F. Supp. 211 (W.D. Wash. 1946).

[10] 348 U.S. 356 (1955).

[11] See: Ylli Dautaj,
Sovereign Immunity From Execution: Caveat Emptor
, published on Kluwer Arbitration Blog and available at
http://arbitrationblog.kluwerarbitration.com/2018/06/04/sovereign-immunity-from-execution-caveat-emptor/, last accessed on 17 September 2020.

[12] Harris & Co. Advertising v.
Republic of Cuba, 127 So.2d 687, 692 (Fla. App. 1961).

[13] Supra.

[14] [2007] EWHC 197 (Comm).

[15] [2016] EWHC 1761.

[16] [2018] UKPC 31.

[17] [2003] EWHC 1357 (QB).

[18] [2013] EWHC 2466.

[19] 482 F. Supp. 1175 (D.D.C. 1980), vacated
without op.,
684 F.2d 1032 (D.C. Cir. 1981).

[20] See: Termination
Of Bilateral Investment Treaties Has Not Negatively Affected Countries’ Foreign
Direct Investment Inflows
, published on 16 April 2018 and available at https://www.citizen.org/article/termination-of-bilateral-investment-treaties-has-not-negatively-affected-countries-foreign-direct-investment-inflows.
Last accessed on 15 September 2020.

 

The Special Anti-Roberry Squad: The Necessity For A Total Structural Overhaul | Motunrayo Olaleye ACArb

The Special Anti-Roberry Squad: The Necessity For A Total Structural Overhaul | Motunrayo Olaleye ACArb

INTRODUCTION

The
Nigerian Police (NP) is the principal law enforcement agency in Nigeria and its
functions, duties and powers are contained and regulated by the Police Act (CAP
P19 Laws of the Federation of Nigeria 2004). Additionally, Police Officers are
subject to the code of conduct for Police Officers.

The
Criminal Investigation Department is the highest criminal investigative arm of
the Nigerian Police Force. The Special Anti-Robbery Squad (commonly known as
SARS) is one of the 15 units under the Nigerian Police Criminal Investigation
and Intelligence Department. Its duties include the arrest, investigation and
prosecution of suspected armed robbers, murderers and others involved in the
commission of violent crimes. 

The
NP is an organization recognized as the custodians of security and order in
society. However, in light of current events, the SARS unit of the NP is being
touted as a violent, exploitative and oppressive system by disgruntled
citizens. This article shall consider the negative reputation of the SARS and
highlight the rule of law in relation to the powers of the NP.

NARRATIVE

The
writer will present a very familiar scenario which most Nigerians have experienced
firsthand, witnessed or been told about. 
A lot of people will affirm that this story is a familiar one.

A
young man on vacation to Nigeria is arrested while taking a leisurely stroll in
the evening. He is confused as to the reason he has been arrested but strongly
believes an explanation will be given; after all everyone is allowed to take
strolls, right? He is subsequently whisked off to an unknown police station,
and after 48 hours in detention with no communication with his family; his
belief that he cannot be arrested for no reason at all has faltered greatly. He
has of course been stripped of all his personal effects; his fancy phone
inclusive. By the time a kind person manages to contact his mother on his
behalf; his belief has taken a complete turn around and now he is certain that
there is no escape from the hell hole he exists in. This is not a place where
shouting, crying or begging achieves any results.  His mother’s joy that her only son has been
found and was not kidnapped as she previously feared is cut short; perhaps his
fate may have been better at the hands of kidnappers who merely wanted a
satisfying ransom.  This young man was
right after all; because he was killed in custody with the explanation that he
was a robbery suspect who tried to escape. Many of such people are not alive to
tell their story. They have been silenced forever; the horrors they faced not
to be discovered by anyone.

STATISTICS

According
to the PRAWA (a Non-governmental organization aimed at promoting Security,
Justice and Development in Africa)Report on Prisons Monitoring, Investigation
and Documentation of Torture Incidence in Enugu State conducted in March 2011,
The Special Anti-Robbery Squad has Police Officers who are designated to
torture crime suspects. Such Police Officers have an unofficial designation
like “OC Torture” (Officer In Charge of Torture), and they have special skills
in infringing various methods of torture on their victims; which methods
include but are not limited to prolonged detention in police custody, gunshot
wounds, severe beatings with police baton and other dangerous objects , burning
with hot objects, squeezing of testicles and inserting objects into the penis,
insertion of nails on feet, electric shock, suspension on the tree in different
positions and cutting with cutlass. (www.prawa.org).

A
series of reports have been made in the past few years with respect to the
degrading treatment and unjust harassment frequently meted out by SARS
operative; a notable report is the one made by Amnesty International in 2016 (https://www.amnesty.org/en/latest/news/2016/09/nigeria-special-police-squad-get-rich-torturing-detainees/)wherein
a press release accusing SARS officials of extortion, torture and inhumane
treatment was vehemently refuted by the Inspector General of the Nigerian
Police Force.

Irrespective
of the admittance or refusal of the allegations levied against officials of
SARS, it is no news that the motto of the NP; “Police is your friend” is very
laughable in Nigeria. Millions of people have been harassed and oppressed and
continue to be subject to dehumanizing and degrading treatment by police men
while supposedly carrying out their duties.

It
would appear that most people while not being completely ignorant of their
rights simply do not know what to do, and the few that are informed would
understandably cower in fear or have lost the will to fight for a seemingly
hopeless cause.

The
need to reiterate our basic rights cannot be over emphasized as we continue to
lend our voices as a sword till we get the desired result.

STATUS QUO

Nigerians
in their myriad of challenges forget the past, until the present reality
resurfaces buried memories. Sequel to various continuous reported and
unreported incidents of abuse, harassment, unlawful detention, extortion and
murder by officials of the Special Anti-Robbery Squad; Nigerians are yet again advocating
vigorously for the elimination of SARS on social media and the campaign against
SARS is trending. The popular hashtag ENDSARS is being used to demand for an
end to police oppression and brutality, with a plethora of videos evidencing
same resurfacing.  

Many
of us recall that a few years ago, Nigerians had in similar fashion and
severally demanded for a reform. In 2017, a Petition signed by over 10,000
people was submitted to the National Assembly calling for a total disbandment
of SARS.(thecable.ng, Ibrahim Mansur, 3/12/2017, “Trending: Nigerians say
“enough is enough”, it is time to EndSARS).

In
2018, a panel was constituted with respect to reformation of SARS after an
unfortunate murder of the only son of a Retired Superintendent of Police.  As recently as 2019, the President of the
Federal Republic of Nigeria stated that a Panel had been constituted to reform
the Special Anti Robbery Squad.  

We
note with dismay the alleged murder of a young man in Delta State Nigeria a few
days ago.  Sequel to nationwide protests,
on the 5th of October 2020, a circular signed by the Deputy
Commissioner of Police Force Pro, Abuja was disseminated and it was stated in
the said circular that the Inspector General of Police has banned amongst
others, FSARS from routine patrol, stop and search, road blocks, unauthorized
searches of mobile phones and the likes.

 The Protesters however remained dissatisfied
and refused to be silenced by some frivolous and ridiculous allegations that
those protesting are actually criminals who intend to use the protests to
surreptitiously achieve their illicit motives.

After
several days of peaceful and incessant protests, the President of the Federal
Republic of Nigeria stated on the 9th of October 2020 that he met
with the Inspector General of the Police with respect to the extra judicial
killings being carried out by SARS and ordered the Inspector General of Police
to address the excesses of the notorious police unit.

On
the 11th of October 2020, a similar circular was disseminated stating
that the Inspector General of Police has dissolved SARS and all officers
serving in the unit will be redeployed to other Units.

It
would appear that although the proposed efforts are not to be undermined,
Nigerians will only be pacified by effective, actual, transparent and glaring
solutions. The people are not placated by the IGP’s statement that SARS has
been disbanded and are demanding for more. They have taken those words with
disbelief because similar things have been said in the past only for SARS to
resurface a few months after. The disbandment of SARS also appears to be a
reconversion of the same set of people who are ingrained with brutality.            

Consequently,
it is obvious that the solution that will assuage this menace is not yet
another reformation, a statement about disbandment, but an actual and genuine
permanent disbandment, justice for victims of police brutality and a
legislative reform, amongst others. 

LEGAL PERSPECTIVE

The
various forms of infringement of our fundamental human rights in the exercise
of the powers of officials of the SARS will now be considered in tandem with
the existing legal frame work that should regulate the conduct of Police
Officers.

It
is relevant to note as a preamble that Article 5 of the Universal Declaration
of Human Rights and Article 7 of the International Covenant on Civil and
Political Rights provide that no one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment. Nigeria as a country should aim
to achieve internationally recognized standards of human rights, not only by
the mere ratification of international treaties and conventions but in the
practical demonstration that as a nation, we uphold the sanctity of life and we
view human rights as paramount.

Arrest without warrant: Section 24 of the Police Act provides that a
Police Officer can lawfully arrest without warrant for a felony, a misdemeanor,
a simple offence or for breach of peace. It would therefore appear that a
Police Officer can arrest without warrant at all times; as the definition of
what qualifies as reasonable suspicion remains non-specific
andnon-delineated.  However; Section
3(1)of the Administration of Criminal Justice Law 2011 (ACJL) provides that the
Police Officer must inform the person arrested of the cause of the arrest.
Similarly, Section 4 of the Police Act prohibits arresting a person in lieu of
a suspect; which implies that one person cannot be arrested in place of
another. Additionally, Section 3 (2) & (3) states that the person must also
be informed of his right to remain silent, the right to consult his lawyer
before making any statement and the right to free legal representation.
Furthermore, by the provisions of Section 35 (5) of the 1999 constitution  a person who is arrested without warrant must
not be detained for more than 24 hours where there is a Court of competent
jurisdiction within a radius of 40kilometres or in any other case, 48 hours or
for such longer period that the Court may consider to be reasonable. A
deviation from the provisions of the law on arrest entitles the victim to seek
enforcement of his fundamental rights, damages and a public apology.

Torture and inhumane treatment: Nigeria has ratified the International
Convention on Civil and Political Rights (ICCPR) in 1993, the Convention
against Torture (CAT) in 2001 and the Optional Protocol to the Convention
against Torture (OPCAT) in 2009. Additionally, Nigeria is a member of the
African Charter on Human and People’s rights. Irrespective of the above, the
practice of torture and ill treatment by Police Officers in general and
officials of SARS particularly remains rampant. There are countless experiences
of people who have been brutalized, ill-treated and tortured in detention.
Section 34 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as
amended) prohibits the use of torture and inhuman or degrading treatment,
therefore a person under detention who is beaten or threatened has the right to
seek legal redress for infringement of his right. 

Unlawful detention: The right to personal liberty is guaranteed
under Section 35 of the 1999 Constitution. Even though this right is not
absolute; any restraint to personal liberty must be done in accordance with a
procedure permitted by law. Unlawful detention can be defined as keeping a
person in custody without any lawful reason. 
(https://dictionary.thelaw.com).
Therefore, being detained in the custody of the Nigerian Police either with or
without the power to arrest and detain may amount to unlawful detention.  It could also be interpreted to mean being
held up at a gun point with threat of being shot if you try to move. In the
same vein, a proviso to section 35 (1) of the constitution (as amended) states
that ,“a person who is charged with an offence who has been detained in
unlawful custody awaiting trial shall not continue to be kept in such detention
for a period longer than the maximum period of imprisonment prescribed for the
offence”. A contravention of the laws guiding the right to personal liberty
will therefore amount to a breach of fundamental rights.

Inducement to give false confession: A false confession is an admission of guilt
for a crime for which the confessor is not responsible.
(en.m.wikipedia.org/wiki/false_confession). The right to dignity of human
person as contained in Section 34 of the Constitution which prohibits torture
extends to the right not to be forced by the police to make a statement under
duress. Therefore, a statement must be given voluntarily by the person making
the statement without physical coercion, torture, promise or threats. Any such
confession can be set aside in a Court of competent jurisdiction.

Extra Judicial killing: An extrajudicial killing (also known as
extrajudicial execution) is the murder of a person by governmental authorities
without the sanction of any judicial proceeding or legal process. (https://en.wikipedia.org/wiki/Extrajudicial_killing).
The relevant provision of the Constitution with respect to the right to life is
Section 33 (1) which provides that a person can only be deprived of his right
to life when he has been found guilty of a criminal offence. A person can also
be deprived of his right to life in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained. Therefore; a person who has
been unlawfully detained and is killed in custody has been illegally deprived
of the right to life. Section 36 of the Constitution provides for the right to
fair hearing and Section 36(5) provides that an accused person is deemed
innocent until proven guilty in a competent court of law.Therefore, it grossly
offends the intent of the NP as custodians of the security of the citizenry to
kill an armed robber or any other person in custody. The relatives of a victim
of extra judicial killing have a right of recourse against both the police
officers responsible for the death and the Nigerian Police as an organization.

WAY FORWARD:

It
is clear that the provisions of the Constitution with respect to human rights
are grossly violated by the NP who continually infringe on rights guaranteed
under Sections 33, 34, 35, 36 and 41 of the Constitution. Furthermore, the
power of the police to arrest and detain is indisputably wide and has created
the forum for abusive interpretation by officials of SARS, the entire police
force and other law enforcement agencies.

The
exclusive elimination of the Special Anti-Robbery Squad may not be the absolute
solution as that may lead to a change in uniform and not character. In addition
to that, there is an urgent need to contain the abuse of power and excesses of
government agencies and their personnel/officers; inclusive but not limited to
the NP in the performance of their duties.

Furthermore,
it is pertinent that checks and balances are created as well as the
implementation of proper training of all Police Officers in areas such as
safety, use of firearms, respect for human rights, treatment of suspects and
other related matters.

This
will involve the dismissal and where necessary prosecution of unqualified,
erratic or emotionally unstable police officers from the NP. 

Additionally,
there is a need to introduce a system that involves inventory and records of
detainees, investigation of all incidents of torture and extra judicial
killings, supervision of all police officers and sanctions.  

Section
36 (6) of the Constitution provides that a person who is unlawfully detained
shall be entitled to compensation and public apology. See the case of Ozide&Ors. VsEwuzie&Ors. (2015)
LPELR – 24482 CA
where it was held that damages in compensation, legally
and naturally follow every act of violation of a citizen’s fundamental right.

Additionally,
legal redress can be sought by filing an action in Court for infringement of
fundamental human rights. In the case of ANOGWIE
& ORS v. ODOM & ORS (2016) LPELR-40214(CA)
, the Court held:

“It was the need to curtail the
excesses of the men and officers of law enforcement agencies that made it
necessary to strengthen the Fundamental Human Rights (Enforcement Procedure)
Rules in Nigeria, not long ago where it was held that the Court is always
prepared and will be quick to give relief against any improper use of power or
any abuse of power by any member of the Executive, the Police or any other
person…”(emphasis mine)

 Nigerians are therefore encouraged to
challenge the breach of their constitutional rights by the Police or any other
law enforcement agencies (not during an interrogation by a seemingly trigger
happy police man but through legal redress) in a bid to curb extreme and
unrestrained violation of rights.   

 

CONCLUSION:

This
Article was first culled by the Writer about 2 years ago. It is deeply heart
wrenching that several years after, the status quo remains so, perhaps even
more deplorable. The pleas of the Nigerian people for real change have dwindled
into despondent resignation again and again until several more brothers,
sisters, children, friends or just fellow humans are killed senselessly and we
all discern, like a realization from some deep seated place in the crevices of
our memories, that this must be faced head on as a battle, because the menace
is closer to our lives than we think.  

Accountability
plays a major role. If we do not begin to learn to take responsibility for our
actions, from the petty thief to the dubious employee, the corrupt politician
or the trigger happy police man; then the change we are all advocating for will
remain chants of a frustrated people. 

Motunrayo Olaleye ACArb

Senior Associate, BA LAW LLP.

 Photo Credit – www.premiumtimes.ng