Immunity Clause doesn't Shield Serving Govs, President from Investigation

Prof. Taiwo Osipitan, SAN

Aside from sitting on the board of a number of blue chip companies in Nigeria, Professor Taiwo Osipitan, a seasoned Senior Advocate of Nigeria (SAN) teaches Criminal and Constitutional Law, as well as Law of Evidence at the University of Lagos. He is the head of department of Public Law at the university as well. In this interview with STEPHEN UBIMAGO, he discusses the poor adaptability of legislative instruments in Nigeria to ever increasing new developments, saying the National Assembly should be blamed for the trend. He also touched on the controversial subject of immunity clause...

What do law reforms really entail?

Law reforms involve periodic review of the law. It is an acknowledgement of the fact that the law will need to respond to developments in society. That is, a law that is good for society some twenty years ago may become outdated because of developments in society. For example, when we began with the Evidence Act and Criminal Code, nobody knew about electronic typewriter, as they were non-existent then; nobody knew about the email; what we had then was the telegraph. Nobody knew about e-contract, e-evidence, etc. But suddenly, computer and electronic devices came into being. By the time those laws were enacted, the makers of the law hardly contemplated those developments. These developments necessitate the need to go back to the drawing board, and see how the law could be amended to respond to developments in society.

Are state institutions proactive enough in adapting Nigeria’s laws to new developments?

No. My experience has been that our laws are not responding quickly enough to developments in society. Our laws have most of the time trailed behind. We are left behind such that we do not know whether to argue that judges should embark on judicial activism aimed at ensuring that there are no lacunae in the laws.

Respecting tardiness in adapting the laws to new developments, which institutions of state may be blamed?

The lawmakers, of course. There are three arms of government: the executive, the lawmaking body and the judiciary. It is the duty of the lawmakers to enact laws; the executive execute laws; and of course, maybe the executive should share in the blame in the sense that the executive can identify areas where reforms are needed and sponsor bills, called executive bills, to the National Assembly. But since the primary duty of lawmaking is that of the National Assembly, we expect them to review the law periodically.

What about the Nigerian Law Reforms Commission (NLRC)

Yes, that’s why I said the executive should also share in the blame. The Law Reforms Commission has the responsibility of researching into our laws, and seeing the areas reforms are needed. But I tell you something, they are also handicapped. I know, for example, that there was a bill for insurance law reform, which was more or less sponsored by the National Insurance Commission (NICOM), the regulatory body of insurance practice in Nigeria. They sponsored the bill based on researches, and debates here and there on how to have an all inclusive insurance law that will address the challenges of the insurance industry and business in Nigeria. I believe it has been there for three years now before the National Assembly; yet they’ve not been able to pass the bill into law. Again, I’m aware that ICAN had also had cause to see how they can amend the ICAN Law. And indeed there was a public hearing on it some four years ago. We have yet to see the bill. So I am saying that the lawmaking arm of government at the central level is not responding as quickly as possible. Or maybe what they really need is a sub-committee of the National Assembly devoted entirely to the subject of law reforms. So if you have them in place, it will become their duty to push out these reforms as sponsored by the executive, etc. Perhaps we need such a committee to drive the said reforms with greater ease.

Despite the cache of anti-corruption legislations, namely, ICPC and the EFCC Acts, the Money Laundering and Forfeiture Acts, Criminal and Penal Codes, among others, Nigeria’s leading challenge as a state still remains corruption. Where are we not getting it right?

The laws are there, I always say to people. But the ability to administer justice without fear or favour is where the problem lies. For example, the judges will only condemn or sentence people who are brought before them and against whom you have evidence. But if you look at it today, we have not even prosecuted one-hundredth of the people who are involved in corruption. Along the line, you have other people who are either not caught or who have compromised. Take it or leave it, corruption has become a cancer in the Nigerian society, such that those people who are not corrupt are seen as abnormal. So there is need for us to have change of attitude. The issue, therefore, is not about the law, but about the human beings who either apply the law or are governed by it.

Is the judiciary also corrupt?

Unfortunately, they are not immune. The cancer that is plaguing the country does not respect the judiciary. Yet I believe there are many in the bench who are not corrupt; many of them have pedigree, and are able to hold their heads above water. But unfortunately, in some courts, right from the head to the bottom, it is corruption galore. And those who are not corrupt among them, are victimised and posted to the bush indiscriminately. Once the head, for example, the chief judge of a state is corrupt, it is not difficult for corruption to trickle down; and those who are not corrupt there are victimised. And it is so bad in some states that there is no difference between the chief judge, the judiciary and the executive. There is so much unholy romance between the judiciary in some states and the executive such that people seem to have lost confidence in such state courts, and they now have cause to start looking for how to take their cases to either the Federal High Court or outside the state. But by and large majority of the judges in the country are okay. The very few corrupt ones are the ones giving the judiciary a bad name.

We learn there are certain gaps in the criminal procedure rules, which defence lawyers manipulate to frustrate trial lawyers. What are these gaps, and how can we plug them in the light of law reforms?

Well there are no laws that are completely gap-free. We are, however, obligated to plug the gaps should they prove to be hindering the cause of justice. Take interlocutory appeals and stay of proceeding, for example. Somebody applies to quash a charge, and it is refused. It would appear that the EFCC Act had taken care of it. But really the Act is talking about offences under the EFCC Act for which there can be no stay of proceeding. Indeed offences under the Act are there; they do not extend to the Criminal Code and others. Then again, the right of appeal is a right given under the Constitution. The EFCC Act is an existing law; therefore, if there is a provision like that, which tends to limit, affect or hinder the full exercise of the constitutional right of appeal, it’s null and void, except we go back to the Constitution and insert that provision there outlawing interlocutory appeals. Or if it’s not outlawed, such provision should state that upon an interlocutory appeal, there will be no stay of proceeding. Until you do that, there is a problem. There is also a gap from the viewpoint of defence lawyers. They can’t trust some of the judges that preside over criminal trials. Some of them are timid such that they are swayed by public opinion. There are some convictions that ought not to take place at all. But people have been convicted simply because they’d already been convicted in the court of public opinion. Judges are now afraid of what the public will say.

Is that not also the problem of law?

Not really. Note, members of the public, with due respect, did not study law. They don’t know anything about burden and standard of proof, that is, proof beyond reasonable doubt. That is the exclusive area of lawyers. I don’t know how a surgeon, for example, can be afraid to perform an operation, because he will be criticised by the public. I don’t know how an estate surveyor will be afraid of doing evaluation because of what the public will say. But it does appear that some of our judges are afraid of what the public will say. Yet they are learned, but the public is not learned in the area of law. When did it devolve on the public to decide who is guilty or not guilty? So defence lawyers are also being very cautious, since they cannot be too sure that decisions are based on the evidence before the court, but on prior condemnation by the public. So at every opportunity available defence lawyers go on appeal.

Let’s connect your last comment to the recent Abuja High Court judgment in which a two-year jail term with an option of N800,000 fine was passed on one John Yakubu Yusuf who is said to have stolen N27 billion belonging to the Police Pensions Fund

Well that is most unfortunate in the sense that the sentence, from my own point of view, is light. He was found guilty the way the public wanted him to be found guilty. Maybe the judge really didn’t believe, based on the evidence before him, that the man should be found guilty. But perhaps the fear of public anger made him convict him of the offence. The judgement seems like he was only providing him a window of escape.

He was tried under the Penal Code. Could he not have been tried under a far more stiff provision of a graver legislation, say, EFCC Act?

I think the Penal Code provided for seven years imprisonment. If twelve or ten or seven years jail term appears in a criminal legislation that can only mean the maximum. Meaning you cannot sentence him beyond that maximum, but you can go below. So the judge has discretion in this respect. But one will expect that the discretion should be exercised judicially and judiciously in accordance with settled principles of law. But members of the public don’t know; and indeed not many lawyers know about the principle of maximum and minimum sentencing. Perhaps he would be right if he says the offence of stealing shall attract a minimum of seven years imprisonment without option of fine. If that is the case, then we can now say, yes, he has done something very, very outrageous. But we know the sentencing policy that legally he’s covered. But obviously, though covered, what may be faulted if the judge is exercising his discretion in this regard.

It has been argued that the immunity clause under s. 308 of the Constitution provides cover for governors to pursue corrupt self-enrichment. That section is anachronistic. Isn’t it?

Well, like I’ve said, everybody in Nigeria now is a lawyer, both trained and untrained. And everything is debated and settled on the pages of newspapers, which is very unfortunate. You have to look at the history behind the immunity clause. The art of governance is a superior issue. And that you do not want a situation where a governor, whilst he’s there, is looking behind him and saying, ‘I’m going to court to testify.’ So the immunity clause is not limited to criminal cases. It also applies to civil cases. Why are we singling out criminal cases? Do you want the clause also to be removed from civil cases in which case your governor is in and out of court on daily basis? What time will he have to settle down to governance? A case is fixed for Monday, which is Exco Day in Lagos State. Do you expect Governor Fashola to go and testify in court in a civil matter in which he has been sued, or in which a subpoena has been issued against him? Once you have a subpoena, you must go to court. So, for example, Governor Fashola, will then have to go to court on Exco Day – maybe two or three Excos in a quarter. Meaning he has to step down other pressing state functions, because he must give preference to the court, otherwise a case of contempt of court may arise against him. For this reason, they need one hundred per cent concentration and attention. There is a Fawehinmi’s case involving Tinubu whereby he got an order of court declaring that immunity does not extend to investigation. Thus you don’t have to wait for a governor to finish his term of office before commencing investigation on him. You can collect your evidence whilst he’s in office. And once he’s out of office, you can prosecute him.

Wouldn’t the governor use his high office to obstruct investigation?

I don’t think so. The governors are endangered species. They have more enemies in government than friends. The document they need for prosecuting them can be produced by civil servants who are aggrieved. The civil servants are the most aggrieved set of human beings around. And for no cause at all, they will bring out the evidence on demand. So you can do your investigation discretely whilst the governor is in office. It is not a perpetual immunity. But what do you find? Nobody investigates them until they leave office; by then the evidence had disappeared. There is still power to investigate. There is no immunity against investigation. They can gather the evidence when it is fresh, and wait for him. You don’t have to interrogate him. When he’s finished his office then you can proceed. But what obtains in Nigeria is that they will even arrest the person before they begin to gather evidence against him. That itself is breach of the person’s right to personal liberty. You don’t arrest until you are ready to take the person to court.  But the EFCC and other agencies, would rather first arrest, make noise on pages of newspapers before they start interrogating witnesses. That is wrong. There is no immunity against investigation. So why are they not investigating the governors?

Former Governor Peter Odili of Rivers State is said to have obtained a perpetual injunction against his appearing before a court for trial respecting his time in office. Can you throw light on this?

It’s unfortunate that such a decision can come out. But what has the prosecution done? Have they appealed the injunction? Or have they prosecuted the appeal diligently. Judges are entitled at High Court level to take decisions. It you find a decision unpalatable, the next thing to do is to go on appeal and set it aside. Not just shouting that it is unpalatable. I expect the prosecution to go ahead and appeal the decision. And that kind of decision, even if it comes before another judge, it is not binding on him; he can refuse to follow it. So it is not a precedent binding on courts of coordinate jurisdiction. It is just an isolated case.

Would you agree with the view that acts of terrorism has remained unchecked owing to inadequate laws for dealing with the menace?

I don’t think so. For example, the EFCC Act makes the work of the EFCC to include investigation and prosecution of terrorism and terrorists. In the Penal and Criminal Code, there is also provision to tackle acts of kidnapping and terrorism. A crime may not be committed if the criminal knows that if he is caught, he’ll be dealt with decisively. But what do you have? How many of them have been caught and prosecuted based on empirical evidence? In fact many of them have reportedly escaped custody. Intelligence gathering is very key.

         

Rev. King v. State: Death Penalty under renewed searchlight

Embattled Emeka Ezeugo, aka Rev. King

By STEPHEN UBIMAGO

If ever the Supreme Court reaches a decision to uphold the judgment of the Lagos Court of Appeal, which on February 1 had affirmed the death sentence passed by a trial court on Chukwuemeka Ezeugo, a.k.a. Rev. King, of the Christian Praying Assembly, he then will be one of the latest cases of convicted felons in the country whom the hangman’s noose will be dispatching to the great beyond as punishment for his offence under s. 319 of the Criminal Code that prescribes death penalty.

On January 11, 2007, Justice Joseph Oyewole, then of the Criminal Division of the Lagos High Court, Ikeja, but currently chief judge of Osun State, had sentenced King to death by hanging on six count charges of the murder of one Ann Uzoh and the attempted murder of five other devotees of his church. The judgement was upheld by the Court of Appeal sitting in Lagos on February 1.

However, once the appellate court affirmed the trial court’s verdict, Barrister Olalekan Ojo, counsel to Ezeugo, did not mince words in impugning the grounds of the affirmation of the judgment, against which he promptly indicated the determination of the defence to appeal at the Supreme Court; thereby taking advantage of the residue legal corridor left to save the life of his infamous client.

Ojo filed five grounds of notice of appeal.

In the said grounds of appeal, Ojo said the appellate court erred in law in refusing the convict’s application to call additional witnesses to tender reports of forensic experts so as to show that there is no way the man, allegedly Rev. King, who ignited the matches that burnt the deceased to death, couldn’t have been torched since she was said to have been soaked in petrol, a highly inflammable matter.

Ojo maintained that the appellate court erred yet again, considering that the reason it gave in its judgment for refusing to grant the application for leave to call more witnesses was merely because the report of the forensic experts had not earlier been tendered in evidence at the trial court.

On another ground, according to him, it was wrong not to have treated the statement of the deceased as “Dying Declaration,” which is admissible in evidence under the Evidence Act as an exception to the “Hearsay Rule” to the effect that Rev. King neither bathed her with petrol nor did he ignite the matches that ended up consuming the said Ann in flames. On the contrary, the deceased maintained, the burns she sustained were from a generator explosion.

But watchers haven’t ceased to express doubts as to whether the move by the defence to find absolution for King at the apex court will achieve its objective, saying it seems an effort in futility given the antecedents of Justice Oyewole for thoroughness.

According to Ibrahim Lawal, senior special assistant to Governor Rauf Aregbesola of Osun State on Legal and Judicial Reform, “Most of Oyewole’s judgments have been affirmed on appeal and even the few ones that had been sent back for retrial, were eventually decided the same way he had initially adjudged them.”

If Lawal’s observation is anything to go by, then the Supreme Court’s affirmation of the judgment passed at the trial, and upheld at the appellate, court could inevitably be a fait accompli.

Rev. King’s fate may have been decided. He may indeed be destined to die by hanging!

But the voices pushing for the abolition of the death penalty as a punitive measure of criminal justice are growing and winning traction the world over.

Among members of the human rights community, especially, it is maintained that capital punishment is a violation of fundamental rights.

“The death penalty is the ultimate denial of human rights. It is the premeditated and cold-blooded killing of a human being by the state. This cruel, inhuman and degrading punishment is done in the name of justice,” says Amnesty International, a global NGO with over 3 million membership focused on human rights.

“It violates the right to life as proclaimed in the Universal Declaration of Human Rights. AI opposes the death penalty in all cases without exception regardless of the nature of the crime, the characteristics of the offender, or the method used by the state to kill the prisoner.”

The United Nations (UN) has also voiced its disavowal of the death penalty. It has continued to call on States that maintain the death penalty to establish a moratorium on the use of capital punishment with a view to abolition, and in the meantime, to restrict the number of offences which it punishes and to respect the rights of those on death row. It has also called on States that have abolished the death penalty not to reintroduce it.

Interestingly, October 10, 2010 was declared the World Day against the Death Penalty. The World Coalition to Abolish the Death Penalty, a coalition of 108 NGOs from around the world, had set that date as the 8th World Day against the Death Penalty.

According to the abolition advocates, the justice system can never be mistake-free; hence it is inevitable that an error will be made in a capital case and an innocent person will unduly end up being executed.

Speaking in this connection, Innocence Project, a US-based litigation and public policy organisation dedicated to exonerating wrongfully convicted individuals through DNA evidence, indicated that the innocence of at least 17 death-row inmates has been demonstrated since 1993.

According to them, one such exoneree, who had served 11 years in prison, came within five days of execution; while another exoneree, who had spent 17 years in prison, came within nine days of execution before receiving a stay.

Still in the US, application of the death penalty show a pattern of bias for race and class.

Blacks and Latinos are said to make up more than 55 percent of the current death row population, despite comprising only about 25 percent of the U.S. population. Besides, the vast majority of people on death row are poor.

The abolition advocates have also argued that the death penalty is not an effective deterrent, insisting that life imprisonment will protect the public from repeat offenders.

In sum, capital punishment as it is applied in the United States is racist, arbitrary, and fallible. It doesn't work to deter crime either, the abolition advocates maintain.

But there is a more fundamental contention, which has been canvassed to reinforce the position of supporters of abolition.

In the aftermath of World War II, an "international bill of rights" was drafted under the UN charter called the Universal Declaration of Human Rights (UDHR).

According to the abolition advocates, since Article 3 of the UDHR – a provision that is replicated in other multilateral instruments like the African Charter on Human and Peoples Rights (ACHPR), which has been domesticated into the country’s body of laws – provides that “Everyone has the right to life, liberty and security of person,” the death penalty may no longer enure without offending that provision.

For one, it makes right to life the most fundamental human right, since it constitutes the basis of access to other rights, which may be enjoyed by man.

By implication, it extinguishes the state’s right to take the life of any of its citizen for whatever reason, the “abolitionists” maintain, stressing that capital punishment also retain the additional disadvantage of being permanent or irrevocable.

Opponents of the abolition school of thought, however, have hit back to say that since members of the school have deliberately shut their eyes from the broader picture, they inevitably have sunk into the fatal error of claiming that the right to life is absolute.

They also maintain that advocates of abolition have arrogantly refused to accept that no right meant to be enjoyed by man is absolute; and that any law worth obliging compliance would allow for a derogation clause to that effect.

Thus s. 33 (1) of the 1999 Constitution, they say, rightly 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.”

In this connection, an Abuja-based lawyer Garba Irunoje, has accused the “abolitionists” of being fixated on the corrective object of the penal justice system, forgetting that it also makes allowance for retributive measure in terms of the “Just Desert Theory.”

According to the “Just Desert Doctrine,” guilty people deserve to be punished in proportion to the severity of their crime.

Capturing this argument succinctly, Jesus Christ, founder of the Christian faith says, “He who lives by the sword, shall die by the sword,” to the extent that no pontificating on justice can be more meaningful to a religious mind or an ordinary reasonable man than that he who wilfully takes another’s life, must have his own life denied him as well.

Irunoje puts it thus: “Retribution, and the penal measure aimed at approximating it by a sentencing court, seems to me as more akin to justice than the corrective object of punishment, which forms the heart of the arguments of advocates of abolition. And our courts are regarded as temples of justice, not merely vehicles for applying correction.”

He maintains further that “It is ironic that societies with laws that allow private citizens to own guns for self-defence, the basis of which thousands of its citizens are killed on a daily basis, are the ones seeking to deny the state the right to apply the death penalty to the deserving.”

Besides, the argument goes that by executing convicted murderers, capital punishment could serve as deterrence to potential murderers from wantonly killing people. And that deterrence is most effective when the punishment happens soon after the crime. A child, for example, learns not to put his finger in the fire, because the consequence is instant pain.

For the level of cultural refinement attained by most members of the Nigerian society, which of course is rather low, it has been said that the death penalty is warrantable for practical reasons.

For example, killing with abandon is so prevalent in many parts of the country that it appears, for many, human life in Nigeria retains no inherent value higher than that of cattle.

Hence the death penalty is a fitting answer for the murderous tendency that abounds in the country. Indeed nothing could be more offensive than the grant of a mere prison term, be it life or otherwise, to a cold-blooded serial killer, a measure the likes of Barrister Ironoje deems as rewarding criminality.

According to Fola Jesse Ojeme, a lawyer and coordinator of Justice Warehouse, an advocacy group, “A clear example of how little regard is paid to human life in Nigeria is the latest clamour, especially from the North, that amnesty (absolute pardon) should be granted Boko Haram, the deadly Islamist terror group.

“It speaks volumes that rather than frontally visit the full weight of an efficient justice system on the Islamist sect, whose terror acts, which falls within the statutory definition of murder and high treason for ostensibly levying war against the state, which has led to the death of thousands of Nigerians, the government of President Goodluck Jonathan appears to be yielding to pressure to grant the said amnesty.”

There is however a sense of cautionary note sounded in the argument by the “abolitionists” that the death penalty is irrevocable.

However, instead of deeming this as enough reason to abolish capital punishment, its supporters contend that it only makes sense to limit its application to cases of murder pursuant to s. 319 and high treason pursuant to s. 37 and 38 of the Criminal Code.

Besides, the inherent safeguards that protect the defendant from judicial arbitrariness in the adversarial system being practiced in Nigeria that says an accused person is prima facie innocent until proven guilty by a competence court after the prosecution has painstakingly discharged the burden of proving his offence beyond reasonable doubt, must be applied exhaustively.

Moreover, the fair hearing principles of nemo judex in causa sua and audi alterem partem as codified in s. 36 of the 1999 Constitution also finds extensive application in Nigerian courts, the object being to protect the defendant from being badly tried and unduly convicted.

This is complemented by the fact that the Nigerian judicature is made up of a hierarchy of courts designed to guarantee that justice is done; for in case the defendant is dissatisfied with the ruling of a trial court, redress could be sought in a higher, appellate court.

Indeed this is the route currently being taken by Rev. King as a way of meticulously engaging the corridors of justice open to him in Nigeria.

Given these safeguards in the country’s penal justice system, supporters of the death penalty say the cautionary note as sounded in the abolitionists’ refrain that death penalty is irrevocable has in fact been adequately taken care of by the nation’s justice system.

Of course, the possibility that a person could suffer conviction for an offence he or she did not commit cannot be completely ruled out, since no human institution, least of all the criminal justice system of any nation, is perfect, as it is always a work in progress.

However, it will be unrealistic to say that since there are no absolute safeguards against the conviction of an innocent person, then the death penalty should be totally abolished.

It therefore goes without saying that such a contention may be tantamount to expecting the country’s criminal justice system to miraculously rise above the ken of human limitations and become a perfectly running machine.

Presidency, NASS’ standoff on Oteh: Who does law side over budget impasse?

By STEPHEN UBIMAGO 

Oteh in the eye of the storm

The refusal by President Goodluck Jonathan to sign the appropriation bill into law, which had since been passed by the House of Representatives on December 20, last year, was reportedly founded on three grounds of dissent.  

Aside from the disagreement over the issue of oil benchmark, which the federal lawmakers had raised from $75 to $79 p.b., and the question of appropriation for constituency projects, resulting in the injection of an additional N63 billion to the N4.924 trillion originally proposed by the presidency, there was also the thorny issue of zero allocation for the Securities and Exchange Commission (SEC).

Whereas some compromise had ostensibly been achieved on the first two areas of disagreement, the problem of zero allocation to SEC has however, remained practically unresolved.

Recently, the House of Representatives gave the indication that as long as President Jonathan obdurately stuck to his guns of keeping Ms. Aruma Oteh as the director general of SEC, despite a resolution of the House to the contrary, so long will it maintain its position of zero allocation to the Commission.

A motion sponsored by the House’s Deputy Minority Whip Garba Datti, under Matters of Urgent Public Importance, had said this much. “The motion urging the removal of Ms. Arunma Oteh is hinged on the fact that her appointment as director-general of the SEC was a gross violation of the Commission’s Act as she does not possess the minimum professional qualification prescribed for appointment to that position,” the motion read. “Once again we urge Mr. President to implement the resolution of the hallowed chambers by removing Ms. Arunma  Oteh.”

This latest move against Oteh came barely 48 hours after the House received a request for an amendment to the 2013 budget from President Jonathan.

It will be recalled that the Ad Hoc Committee on the Investigation of Near Collapse of the Nigerian Capital Market, chaired by Hon. Ibrahim Tukur El-Sudi, for whom Hon. Herman Hembe was substituted as chair following Oteh’s bribery allegation against the latter, had last year passed a resolution urging President Jonathan to remove the SEC DG from office over incompetence. Her want of the statutorily prescribed professional qualification for the office formed the basis of the House’s contention that the woman was lacking in ability.

However, President Jonathan has remained unfazed, scarcely looking eager to show Oteh the way out; and not infrequently saying through his spokesperson Dr. Reuben Abati that the House resolution is merely advisory. In fact he has left no one in doubt of his displeasure over the House’s stance, declaring it’s frustrating the operations of SEC.

But the question to be asked is: ‘Has the president infracted any extant law in respect of its treatment of the House resolution concerning Oteh as only advisory?’ It is doubtful. Nor, on its part, does it seem the House has acted ultra vires for declining to make appropriation for SEC in the 2013 budget, irrespective of the pet object.

According to section 80 (3) of the 1999 Constitution (as amended) : “No moneys shall be withdrawn from any public fund of the Federation, other than the Consolidated Revenue Fund of the Federation, unless the issue of those moneys has been authorised by an Act of the National Assembly.”

Also driving home the point, s. 80 (4) states: “No moneys shall be withdrawn from the Consolidated Revenue Fund or any other public fund of the Federation, except in the manner prescribed by the National Assembly.”

From the above constitutional provisions, it goes without saying that no moneys may be appropriated for any purpose, which has not been so prescribed by the National Assembly in an Act of parliament.

Thus the federal lawmakers have the constitutional power to withhold funds for the operation of SEC.

To yet bolster the point, House Minority Leader Mr. Femi Gbajabiamila is said to have referred the president to Section 21 of the Fiscal Responsibility Act, which, according to him, empowers the National Assembly to appropriate funds to SEC. “The Act is very clear on this. It clearly says that the minister (finance) shall present the budget of SEC for appropriation by the National Assembly,” he stated.

According to the said s. 21 subsections (2) and (3) of the Fiscal Responsibility Act: 

(2) “Each of the bodies (SEC inclusive) referred to in subsection (1) of this section shall submit to the Minister not later than the end of August in each financial year: (a) An annual budget derived from the estimates submitted in pursuance of subsection (1) of this section; and (b) Projected operating surplus which shall be prepared in line with acceptable accounting practices.

(3) “The Minister shall cause the estimates submitted in pursuance of subsection (2) of this section to be attached as part of the Appropriation Bill to be submitted to the National Assembly.”

Arising from the above is an affirmation of the point that no appropriation of moneys, within any fiscal year, for the operations of any government agency as identified in the schedule to s.21 of the Act (referred to as “the Corporations”)  can be done devoid of the authorization of the National Assembly.

While the federal legislators, following their probe of the capital market, seemed to have zeroed on Oteh as the major problem, or rather a critical part of the problem, in the light of her alleged incompetence or lack of professional qualification as statutorily prescribed; the presidency seems to be saying, ‘the Investment and Securities Act (ISA), which grants it power to hire and fire the SEC director-general, provides for the warranting conditions and the rules as to how the SEC DG may be removed from office.

While s. 3 (1)(b) of the ISA provides for the Commission a Board to be comprised, among others, of the director-general as chief executive and accounting officer; s. 8 (1) provides that: “A member of the Board shall cease to hold office if he (a) becomes of unsound mind; (b) becomes bankrupt or makes a compromise with creditors; (c) is convicted of a felony or any offence involving dishonesty; (d) is guilty of serious misconduct in relation to his duties; or (e) is a person who has a professional qualification, and is disqualified or suspended (other than at his own request) from practicing his profession in any part of Nigeria by the order of any competent authority made in respect of him personally.”

From the foregoing provisions, it may safely be submitted that the question of “competence or professional qualification pursuant to s. 3(2) (a) of the ISA” does not prima facie feature among the conditions that could warrant dangling the guillotine over the neck of a SEC DG.

Besides, it is provided in s. 8 (2) ISA that “The President may at any time and upon the recommendation of the Minister remove a person to whom subsection (1) of this section applies: Provided no full time member of the Board of the Commission shall be removed from office without the approval of the Senate.”

A literal statutory construction of the foregoing provision is to the effect that, one, only the minister of finance, not the National Assembly, has the statutory power to recommend the removal of the Commission’s director-general.

Two, the only power statutorily granted the National Assembly in respect of a director-general’s removal is that of assent or approval or endorsement. In other words, unless and until the parliament approves the removal of a SEC DG, his/her removal cannot be perfected.

However, the argument has also been canvassed that the “and,” which appears in the phrase in s. 8 (2) to wit, “The president may at any time ‘AND’ upon the recommendation of the Minister remove...,” may indeed be construed as a disjunction, that is, an “AND/OR,” and not just a conjunction, that is simply “AND.”

In other words, the proper construction of the provision furnishes us two interpretative possibilities.

1. Either “The President may at any time remove the DG...;” or

2. “The President may at any time remove the DG upon the recommendation of the minister of finance...”

While the implication flowing from the second arm of the disjunction has been dealt with in the preceding analysis; it does seem that the plausible construction that may be afforded the second arm of the disjunction is that the president, without recourse to ministerial recommendation, may suo motu take action against a SEC DG if he’s satisfied that by virtue of the provisions of s. 8 (1), he/she is good for disengagement.

Head or tail, therefore, the National Assembly is in no place within the perimeters of the ISA to recommend to the president the sack of Arunma Oteh. It can only act when or after the job (of sacking) has been done by way of giving or staying assent.

However, the construction of s.8 (2) so as to pass as a disjunction, which, under its first arm, empowers the president to act suo motu pursuant to s.8 (1), can also mean he is at liberty to take non-obligatory advice from any quarter, including the National Assembly.

Nevertheless, members of the House may be right as it is a question of fact and not of law that based on parameters as provided in s. 3(2) (a) of the ISA, Ms. Oteh was at no time qualified for the office of SEC’s director general.

According to the said s. 3(2)(a), a candidate for the post of SEC’s DG must, aside from possessing a university degree, boast not less than 15 years cognate experience in capital market operations, a statutory qualification Oteh obviously lacks.

But such sudden discovery of the true state of affairs is apparently tendentious as it is belated, a crying over spilt milk.

It is a fact that Oteh was, on the floor of the National Assembly, cleared, being found fit and proper to assume the post of SEC’s DG when in 2010 late President Umaru Musa Yar’Adua, pursuant to s. 5(1), put her up for confirmation before the Senate.

Interestingly, the same parliament that had once found her fit and properly, having done its due diligence, would turn around to impugn her qualification.

The charge may therefore be apt that the lawmakers are at once approbating and reprobating over the competence of Oteh. And if the doctrine of estoppel is anything to go by, the parliament should be deemed estopped from further parading the woman as unfit having once confirmed her as competent by way of her clearance on its floor.

Clearly, whereas parliament has no power to recommend the sack of Oteh, it does obviously have the constitutional power to withhold budgetary allocation to Oteh’s SEC. The goal of using the move to muscle the president to sack her is by the way.

Nonetheless it is expected that in the exercise of their statutory powers, public officers in the country must act bona fide, judiciously and judicially, as any further delay in passing the appropriation bill into law may further hurt the national economy adversely.