WELCOME TO 2014: MESSAGE TO DPA MEMBERS

WELCOME TO 2014: MESSAGE TO DPA MEMBERS

“CONGRATULATIONS” is the word most appropriate for the members of the DPA as the first year of the group’s existence comes to an end, and a new year begins. DPA was established in February of 2013. Within ten months in the first year, the group has grown from a few members to 11,200 members. No other group in the social media or any virtual community has grown that fast, given our circumstances. That in itself is enough for every member of DPA to feel proud. From the bottom of my heart, and I speak for all our admin members as well, I thank all members of DPA for their continued support and relentless effort toward the growth of the group. Too many of you have done so much for the group that it would be hard to mention names. However, I would make an exception and mention Emma KcChinedu Amucha for the extraordinary support and services he has rendered so tirelessly to DPA. We are grateful. The New Year is going to be a watershed and a defining period for our group. Though it is clear that we have made some landmark progress in establishing ourselves as a serious, diverse and professional group, we still have a number of attainable challenges ahead of us. The performance of our group so far only speaks to our collective passion and commitment to justice, liberty, due process and human development and progress. Our strength comes form our diversity and sense of equality amongst ourselves and in our perception of others. We maintain our principle of equality of all humans regardless of gender, ethnicity, language, religion, nationality, age, disability or life style. We shall continue to build our membership and we expect to reach 50,000 members by the end of 2014. We shall also continue to rework and upgrade our governance and administrative structures to reflect our diversity and democracy in the group. The task for DPA and the challenges we face are enormous. It is impossible for one person to handle them. I can assure you that we have a team. As we go into 2014, there is already a plan, in advanced stage, to wean the group away from my direct and detailed management and supervision. Indeed, it could not be otherwise. We need a strong team of professionals to help. We need money to run the group. We need management and organizational expertise to manage the needs of our members. We need project development personnel to fashion and develop programs of action for the group. So, inevitably, it would be impossible for one person to run DPA. And besides, DPA is a participatory group. We expect in 2014 to carry out a number of projects aimed at upgrading the Nigerian criminal justice system and the legal system as a whole in order to deliver justice to thousands of people currently deprived. Legal education and information sharing remain important source of empowerment for our members and the general public. We expect to initiate a number of programs aimed at continuous education of members and the public on various legal issues and concerns. This would be consistent with our motto: “If you don’t know your rights, you may as well not have them”. We want to give our members and the general public greater awareness and knowledge about their rights and how to protect those rights in case of threats that undermine their liberties. Again, I congratulate our members and I assure you of a great year ahead of us. Ephraim Emeka Ugwuonye, Esquire
President, ECULAW GROUP
Founder and Principal Administrator, DPA.

THE CASE OF A NIGERIAN-BORN DOCTOR CHARGED WITH RAPE OF HIS PATIENT IN HARTFORD, CONNECTICUT – LESSONS TO LEARN. By Emeka Ugwonye, Esquire

THE CASE OF A NIGERIAN-BORN DOCTOR CHARGED WITH RAPE OF HIS PATIENT IN HARTFORD, CONNECTICUT – LESSONS TO LEARN.

In 2012, the state board that disciplines doctors in the State of Connecticut cited "overwhelming'' forensic evidence on Tuesday as it revoked the license of Dr. Edwin Njoku of East Hartford, charged with rape of his female patience.

Dr, Njoku’s lawyer, Mr. Richard Brown, argued for the Medical Examining Board to postpone action until after the criminal case – but board members said Njoku never formally invoked his right to ask for a postponement. Instead, the board noted, Njoku went ahead with a hearing. In other words, the Board relied on a technicality – that the doctor never “formally” invoked his right to ask for a postponement. Also, the board spoke of overwhelming forensic evidence, which might have just been a matter of opinion for a board that had made up its mind. If it ended here, this would have been a simple case of another Nigerian doctor found to have violated the rules of medical profession and probably acted stupidly too. But the case has another twist to it.

In August of 2013, the court acquitted Dr. Njoku of rape, but found him guilty of lesser offenses. That means that the board might have been hasty and rushed to reach its findings of “overwhelming” forensic evidence. Note hat they did not find his sperms inside her, as the woman’s allegations might have suggested.

It is important to note that given the fact that the board’s decision is based on a lower standard of proof (clear and convince evidence) rather that the standard for criminal conviction (beyond reasonable doubt), it is possible for the board to find him guilty, even though the criminal court would not.

Yet something remains disturbing about this case. The Board's decision most likely affected his criminal trial. He was acquitted of the rape charge, which the Board based its decision on. Doctor's fluids and DNA are easily transferable to their patients. It is likely that great injustice was done to this doctor. It is that he had something going with the woman. He probably jilted her and she cried rape. Note that his semen was never found inside of her.

Note that her testimony was disproved by science. "During a seven-day trial that included tears, angry words and sexually graphic dialogue, the patient testified that Njoku got on top of her as she lay on an examination table and raped her." But his sperms were not found in her. And if she lied in key area, why would the jury believe her? This was a trial with many twists. “The verdict suggested that jurors believed that Njoku put his mouth on the woman's breast in an East Hartford exam room on Oct. 22, 2011.” Dr. Njoku “testified that it was the woman who made sexual advances, reaching into his pants and grabbing him”. His lawyers “painted a picture of an accuser with mental problems and a drug dependency”. “Njoku's DNA was in dried saliva found on the woman. His DNA also was found in semen stains on the jeans the woman was wearing, but none was found inside her body”.

The trial and verdict were further complicated by the rules of evidence that apply in the State of Connecticut. "And it was very difficult to explain to [Dr. Njoku] why the state was permitted to bring in [other] accusers of his but why he couldn't bring up other facts and factoids about the alleged victim in this case," according to his lawyer. “Another hurdle for the defense was a state law that prohibits the jury from hearing information about other people with whom the patient might have had sex before the alleged rape. The DNA of at least two people besides Njoku was found on the woman, Pattis said in court when the jury wasn't in the room.” The trial was also full of some drama and theatrics. For instance, the lawyer to the doctor had to lie on the table and the floor of the courtroom to demonstrate to the jury that the story of the rape victim could not have been possible. Also, there is a lesson to learn – obstruction of justice could be a serious charge. There was evidence that the doctor send a pastor to talk to the victim for her to drop the charges. So, normally, an accused person may not communicate with the complainant once a charge has been filed. But the bigger lesson here is the wisdom and ethics of doctors avoiding all forms of sexual contact with their patients. If a patient grabs you, make a big issue out of it. Report to the police immediately before she does. Also note that once the jury read the verdict, the judge increased the bail bond of the doctor, meaning that he was taken back into custody until he would pay the new bail bond. For lawyers reading this report, I would explain that. The bail set before the trial was low and designed to make sure that the doctor would not be in detention during his trial in accordance with the presumption of innocence. But once found guilty, though not sentenced, two things occurred in the process. First, the risk that he would flee is greater. Second, having been convicted, he is no longer presumed innocent and his detention henceforth would not offend the presumption of innocence.

PRESIDENT JONATHAN SHOULD ANSWER THE ALLEGATIONS OF PRESIDENT OBASANJO.

Against any position to the contrary, President Jonathan has a moral, political and even legal obligation to respond to the allegations made by President Obasanjo in the latter’s open letter. Jonathan’s delay or refusal to respond is suspicious and dangerous. Worse, it makes the allegations seem admitted as true.

Obasanjo’s open letter allegations, from whatever angle you view them and notwithstanding that those allegations are probably self-serving, are weighty and ominous. All the issues raised in that letter constitute the heart and soul of the controversy facing Nigeria today and directing its future. They touch on the essence of the Nigerian State, the relationship between government and the governed, and between the various segments of the Nigerian society. It is to the Nigerian people that President Jonathan owes the obligation to respond, and not necessarily to Obasanjo.

President Jonathan’s refusal or delay in responding has already led to some awkward events. For instance, the letter alleged to have been written by Obasanjo’s daughter to her father, would not have assumed the significance it did were it not that some people sympathetic to President Jonathan had mistakenly assumed it was a victory to Jonathan. They believed that Ms. Obasanjo’s letter had taken the place of President Jonathan’s response. But no position could be more misguided than that. Iyabo Obasanjo is not President Jonathan. She has no public obligation to respond in place of the President. And clearly she did not really respond. At the best, she only aired her anger toward her father, albeit on maters that are partly of political import. Ms. Obasanjo’s letter only impugns the motive and dispositions of Obasanjo without addressing the specific allegations made against this President.

Also, it is natural to conclude that the President’s silence over the matter has made it easy for Ms. Obasanjo to deny that she ever wrote the letter, which immediately cast suspicion on the President and his men as to who could have authored that letter, if indeed it was not Ms. Obasanjo. In any event, it is quite belittling of the President for it to be said that the Nigerian President was saved from these allegations by the fortuitous actions of Iyabo Obasanjo. Such would be the kind of position the President would avoid being in.

So, President Jonathan must respond. He should have the capacity to respond. He should have the resources and opportunity to respond. Above all he owes it to the Nigerian people to respond. One way he could respond is to allow a press interview where the journalists would be free to ask him questions on the allegations made by President Obasanjo. And the best time to respond is now, not much later.

One issue on the minds of many over these things has been in connection with Obasanjo’s motives and methods. If Obasanjo had set out to present himself as an honest Nigerian statesman who wished Nigeria well or who was genuinely concerned about Nigeria’s interest, it is clear that he failed. Obasanjo is not perceived favorably for several reasons. And it could be said that he has hurt his image more by his letter to President Jonathan.

First and foremost, Obasanjo did worse than any other President in Nigeria’s history, given the extraordinary opportunities he had. Second, Obasanjo, as a President, was extremely corrupt and he left office one of the richest men in Africa, all based on illegal and shameful accumulation of wealth. Also, Obasanjo was a brutal dictator, who supplanted the constitution and rule of law at every opportunity. On fighting corruption, Obasanjo was no better than Jonathan has been, except perhaps that Obasanjo lied better about his anti-corruption policies. The EFCC that Obasanjo established was merely an excuse to have his own private strike force for dealing with political opponents. Even today, Obasanjo’s collusive relationship with the EFCC probably remains strong. And the effort to blackmail President Jonathan over his anti-corruption effort is probably something initiated by the leadership of the EFCC in order to force Jonathan to release funds to the EFCC, which is understandably broke.

As I began, I end by I reiterating that the President of Nigerian has a solemn obligation to respond publicly to the allegations made against him by his predecessor President. He cannot stay quiet. That would serve him badly and that would be a betrayal of his compact with the people of Nigeria.

ME AND THE EFCC - I STILL REMEMBER

ME AND THE EFCC - I STILL REMEMBER 

Two years ago today, I was detained at the EFCC cell in Lagos, which was the second round of my detention. I was detained the first time because a Nigerian Ambassador in Washington promised to help Mrs. Farida Waziri, the then head of the EFCC improve her dwindling image in Washington. And he asked a favor of her - to detain me over a dispute between my law firm in Washington and the Embassy of Nigeria. They detained me in Abuja. 

I fought them from within their cells for 3 months. They disobeyed the court order that ordered for me to be set free. But after three months of such unlawful detention, they ran out of tricks. I was released. But I did not stop fighting them. They thought I would just go away. But they didn't know me well enough. 

I fought them from within their cells for 3 months. They disobeyed the court order that ordered for me to be set free. But after three months of such unlawful detention, they ran out of tricks. I was released. But I did not stop fighting them. They thought I would just go away. But they didn't know me well enough.

As I continued the fight against the EFCC leadership for corruption and abuse of the rights of Nigerians, they plotted again to detain me. On October 26, 2011, they detained me again, this time in Lagos. Again, they played every trick in their dirty books to delay my release, even after the court in Lagos ordered for me to be released.

Two years after, I look back at the EFCC and notice that every prediction I have made about that commission is coming true. The EFCC leadership and offers are the most corrupt Nigerians ever. They are 10 times worse that the people they claim to be arresting. I recall below certain encounters I had with them as a detainee.

Most Nigerians would never understand how really dump the EFCC leaders are. Do you know that on one occasion Mrs. Farida Waziri decided to lock up her driver and bodyguard in the same cell where I was. I will never forget that day. First and foremost, all the inmates were very respectful to me and they treated me with a lot of difference. They made me their leader and spokesman immediately I got there. The inmates were all eager to help me, to be nice to me, etc. Most of them believed I would be in a position to help them get out of the detention or even help them with their cases. They had never seen anybody before look the EFCC leaders in the eyes and chastise them.

The EFCC senior staff were afraid to come to the cell because I would always question them and castigate them and demand for better treatment of the inmates and the release of some of them who have been either ill or too manifestly abused. At some point, it seemed I was no longer interested in my own freedom, as I spent time and money helping the other inmates instead. The inmates really loved me. I saw how even poor people tried to share their things with me, and I had to fight hard to stop them. They knew I couldn't eat their food or drink the sachet water they drank. They made effort to make sure I was okay. But I also made sure I never became a burden to any of them. I stayed cheerful all the time. I teased them. I encouraged those who were down in spirit. I told them stories about life in America. I listened to stories about their families. I helped them understand their cases and the sort of defenses they had. I advised them on how to deal with the EFCC officers, etc.

They wanted to wash my clothes and do everything for me. But I didn't let them. I insisted on washing my own clothes. Even when the EFCC leaders stupidly placed me in the female section of the cell (so I would stop "brainwashing" the men), just to punish me, the ladies were so so eager to help me. They all loved me too. Indeed, the ladies wanted to wash my clothes. The ladies were unstoppable. I realized from that how much difficult it is stop determined women. Once a woman makes up her mind, you are wasting your time trying to stop. The ladies insisted on assisting me in every way they could. I would tell them I was okay and that I didn't need anything. But they would insist that I should have coffee or tea or stuff, even some Nigerian food that really made me sick because I hadn't been eating them for over 20 years. And the ladies were really very happy when I shared personal stories with them. Otherwise, when we talked, it was mostly about their cases. And something else too. The ladies were so happy to act couriers for smuggling out my prison notes (which will be published soon). It was much easier with ladies as couriers because they were not searched as strictly as the men couriers of my writings.

Back to the main story: Farida Waziri locked up her driver and bodyguards in the cell for insubordination. What did the men do? They had worked for a whole day and came home, only to be given no food. (They lived in her household and they ate there with all the other personal staff). The two men mildly voiced their unhappiness. They were thrown into the cell because they dared to ask why they were not given food for the day after a hard day labor.

I remember that evening, when one of the inmates came to me in the cell and said: "Barrister, Barrister, we have some important inmates you might be interested in knowing about". He was referring to Farida Waziri's driver and bodyguard. I advised him to make sure they were well settled down and to make sure they had some food from any food around, and if not, they should take money from me to send for food for them. In fact, when I heard their story, I arranged for them to have food so much as they could eat.

The next morning, the men were ready to be interviewed by me. I interviewed every inmate that came into the cell while I was there, once he settled down. Upon interviewing these men, I was able to obtain a treasure of information about Mrs. Farida Waziri's personal life and how she ran the EFCC. I already had a good idea how she ran the Commission. I needed information about her personal life. And the men were most helpful. First, I had to make sure they were sufficiently indignant for the way they were treated by Mrs. Farida Waziri. And I had to make sure that I got just the truth about her life, without exaggerations. And as a lawyer, I know how to examine a witness and be able to extract useful and accurate information. The men were police officers and they really didn't have to exaggerate anything, as the truth was weird enough to shock the conscience.

In the three day period the men spent in the cell, I knew every guesthouse and location where Mrs. Farida Waziri had sex with any of her three steady boyfriends (all married men), where those men work etc. (Note she is a married woman). I also knew that her husband, Senator Waziri, was suffering from advanced prostate. I learned she was a heavy drinker and used drugs. I learned where her children worked and how they got the jobs. It was a gold mine of information. I also knew through Mrs. Waziri's activities who was doing what in the EFCC, and I knew about the few younger male staff of the EFCC she was sleeping with. She had this young-boys scout around her whom she used for sexual pleasures. I would have wondered how a woman at her age could manage such high libido. But when you assess the effect of alcohol and drugs on the body, you would understand the possibilities.

I know a lot about the EFCC, the psychology of the officers and the dispositions of the agency. That made it possible for me to say things about the EFCC and be right down the line. I made extensive notes about my detention experience. I am working on a book that would expose all of them.

NIGERIAN SUPREME COURT ON BODE GEORGE – THE BIGGEST FAILURE, YET THE MOST PROFOUND TRIUMPH OF JUSTICE.

NIGERIAN SUPREME COURT ON BODE GEORGE – THE BIGGEST FAILURE, YET THE MOST PROFOUND TRIUMPH OF JUSTICE.

By Emeka Ugwuonye, Esquire

December 14, 2013

Lagos, Nigeria

This year has marked a profound period in the history of the Nigerian criminal justice system. Barely months after the shocking case of Al Mustapha’s acquittal after 14 years in prison, yesterday’s Supreme Court reversal of the conviction of Bode George ought to shake the Nigerian justice system to its foundations.

In these two cases, the Nigerian system of justice twice failed colossally. And twice, the system triumphed against itself in an amazing combination of tragedy and glory. That which leaves one aghast and in utter shame is also that which leaves one cheerful and hopeful. Without a doubt, the Nigerian Supreme Court again rescued Nigeria by upholding the constitution against the odds.

Why is the victory of Bode George a tragedy, nonetheless? The reason is that Nigerians had hoped that the corrupt Nigerian leaders could he somehow held accountable in the courts of law, just like anybody else. They had looked to the case of George as an actualization of that hope. But that was wrong, unfortunately. The people are thus unsatisfied that the powerful, but corrupt, leaders of the country remain totally untouchable.

But George’s case was never set as a genuine test of justice in Nigeria. It was a travesty both in framing and prosecution, laced with ironies all the way. Explaining what happened in that case to an ordinary person is quite a challenge, without losing some nuances and intricacies that were involved.

The Lagos State High Court is largely under the firm control of the Lagos State Governor or the Executive. Even though the constitution tries to give the judges some measure of independence from the executive, the judges are left largely at the mercy and under the control of the executive arm of the state government. Through the ability to allocate lands and other resources and more, most judges would be mindful not to be in the bad books of the state executive. Also, through the ability to appoint judges and the particular manner that power has been exercised in Lagos over the years, there is no question that an average judge feels beholden to the Governor. A typical high court judge sees his happiness tied significantly to the pleasure of the Governor.

Incidentally, Lagos State was controlled by a Governor from a party in opposition to the party that ruled at the federal level. Lagos is a critical piece of political territory in Nigeria. The opposition party in control of Lagos wanted to keep Lagos at all costs, while the party at the center wanted to take Lagos. Bode George was at some point the arrowhead for achieving the ambitions of the party at the federal level over Lagos.

A perfect opportunity arose when through series of inconsistencies at the federal level George got indicted in Lagos in what was to be one of those show trials that was never intended to get anywhere. But this time, there was finally an opportunity for Lagos to achieve an outcome not even fully appreciated by the EFCC, which initiated the indictment. Convicting George and sending him to jail in Lagos was going to solve a lot of political problem for the part that ruled Lagos.

One has wondered what level of coordination existed between the Lagos Executive and the Lagos Judiciary over this case. The fact is that the Executive did not have to say even one word to the presiding trial judge for him to appreciate the significance of having George as a suspect in a jailable offense in his court. It is logical that conscious parallelism would have kicked in and everything became a fate accompli.

But there seemed to be the existence of a plot and coordination beyond mere parallelism, coincidental or concerted. The manner the charges were framed remains curious. The prosecutor escaped lightly the obligation to present any evidence of fraud or an indication that Bode George benefitted personally from all the corrupt offense he was alleged to have committed. How come that the entire effort to jail the man did not include a demonstration that he stole money or that he received even a kobo or that any of the companies that were awarded contract under his reign belonged to him? That was troubling.

The only explanation for such a dodgy and curious framing of a charge and proof of evidence was that the whole goal was to convict him in any manner least likely to raise serious appealable issues. In other words, the goal was just to get him to jail at all costs, and not to address any substantive issue of justice.

Once Bode George was at the mercy of the courts, things moved in the only direction they were designed to move. He got convicted of “anything possible”. His effort to get a stay of judgment, which ought to be well justified, given the shaky legal basis for his conviction, was denied, through what was later to be seen as the overbearing position and influence of the President of the Court of Appeal, presumed to be in sympathy with the party that controlled Lagos. And once the Court of Appeal refused George’s request for a stay, it boxed itself in – the Court of Appeal had to uphold the conviction to justify its questionable denial of stay. This conclusion, though not the only possible explanation, is logical and reasonable.

To fully understand the tragedy of this case, let’s look at the judgment of the Supreme Court and the language is used. The court pointed out that “The prosecution knew the odious phrase to demean [the accused/George]. From the word go, it must be presumed that when [George and others] were put on trial it was on the basis that there was no prima facie case which showed intention to defraud.”

The Supreme Court pointed out that the prosecuting counsel manipulated the charges with intention to malign the accused with the stigma of fraud. Yet there as no evidence for that. The case was essentially one that required evidence of fraud. Yet no such evidence existed and no such evidence was adduced. Indeed, the charge was defective and George should not have been charged to court on the basis of the allegations and the lack of evidence.

According to the Supreme Court, “Intention to defraud was made an element of the offense charged. Yet learned counsel for the respondent said evidence in respect of same was ‘neither here nor there’. “…. the case ought not to proceed to trial. Such action does not reflect well on our jurisprudence. A court of law should be weary of such practice.”

The Supreme Court then goes forward to make pronouncements that damned and ridiculed both the trial judge and the justices of the Court of Appeal, thus:

“Let me state it in passing that their Lordships of the court below, with due diffidence, did not indicate the process of reasoning by which they implied that the intention to defraud had been proved. This court has held that the trial courts must arrive at their verdicts through process of reasoning which is analytical and not only to command confidence, but is punctuated with logical thinking based on cogent and admissible evidence and in which facts leading to the conviction of the accused are clearly found and legal inference clearly drawn”.

The highest court basically stated that the lower courts did not meet the basis standard of logical reasoning in its rationalization of its verdict. They reasoned like illiterate traders in Onyingbo market, more or less. That is bad enough and that is what calls for investigation into what happened. This case was not just an ordinary judicial error within the margin of judicial discretion. It smells of a wholesale subversion of Nigeria’s criminal justice system. The Supreme Court termed the entire trial a “complete mistrial” on a case that rested “on shifting sand”.

Anyone familiar with the characteristic restraint of Supreme Court justices in referring to the conduct of lower judges and the state prosecutor will understand the extreme nature of the direct rebuke of the lower courts by the Supreme Court. There is thus a need for a complete investigation into what went wrong in this case that caused it to threaten our jurisprudence, as the Supreme Court rightly observed.

Yet, despite the huge problems posed by the development of this case and the overwhelming injustice in the trial, conviction and punishment of an innocent man, this case ended in a triumph for justice and rule of law in Nigeria. The Supreme, as was done in the case of Governor Amechi that led his becoming a governor, saved the country and vindicated justice by restoring the supremacy of the constitution. The justices are indeed the guardians of the constitution.

NIGERIAN COURT OF APPEAL RULED AND SENATOR BODE OLA FLOORED THE EFCC YET AGAIN.

Beneath the gaze of the Nigerian public, there has been raging a fierce battle of nerves and principles between the Nigeria’s Economic and Financial Crimes Commission (EFCC) and Senator Festus Olabode Ola in the court of law since the past five years. It has been a cat and mouse, brute force on the part of the EFCC versus intelligence and determination on the part of Senator Ola.

It started in March of 2008, when the EFCC made that fateful decision to arrest Senator Ola. It continued through November 26, 2013, when the Court of Appeal sitting in Jos affirmed the judgment of the lower court awarding millions to Senator Ola. Within that period, it has been a struggle between justice and injustice. Justice prevailed and Senator Ola won again against the EFCC, now in the case, which shall be making the law reports as EFCC vs. Friendly Hotels Limited and Festus Olabode Ola, Appeal No. CA/145/2012.

As a background to this, in 2008, while Senator Ola was in court fighting to claim his electoral mandate to represent Ekiti State at Senate, the political opponents of the Senator induced some officers of the EFCC to pursue Senator Ola with a view to eliminating him as a political contender. In what was a blatant manipulation of outcome in an electoral dispute, the EFCC officers swooped into the Friendly Hotels, in Ado Ekiti, owned by the Senator. The officers disrupted normal hotel business, carted away the computers at the hotel’s business center and arrested the Senator. Their pretext for such a naked show of crude force was that they suspected that cyber scammers were using the hotel’s business center. No single such scammer was ever arrested.

In the 2008 incident, no crime was ever established against the Senator. It was just that he and the manager of the hotel were arrested, ruffled and supposedly scared by the EFCC officers. No crime was ever alleged. Their reason was just to silence him politically. None of the computers taken away from his hotel was found with any incriminating evidence. Indeed, the reversible and inconsistent EFCC wrote him a letter acknowledging that nothing was found on the hotel’s compuetrs. Yet, the EFCC refused to return the computers or to apologize for such a blatant abuse of police power. Despite his mild and gentle qualities, the Senator could not accept such indignity and humiliation unchallenged.

The Senator filed a petition at the Federal High Court to enforce his fundamental rights against the EFCC.

In 2010, the Federal High Court sitting in Jos granted judgment to Senator Ola, finding that the rights of the Senator were blatantly violated by the EFCC. The court awarded Senator Ola a judgment of 50 million naira against the EFCC. That remains the biggest judgment any Nigerian court has awarded against the EFCC for violation of rights. And the arrogant and power-drunk EFCC was not going to take that without retaliating.

The EFCC management and staff took three drastic retaliatory steps against Senator Ola for defeating them in a court of law. Before anything else, the EFCC simply refused to honor the judgment. They refused to pay Senator Olo. As the Senator tried to garnishee the accounts of the EFCC, the officers made the first retaliatory move.

On November 24, 2011, Mr. Lamorde, then the Head of Operations of the EFCC, invited Senator Ola for discussions for the purpose of making payment to him as per the judgment. When the Senator arrived with his Personal Assistant for the meeting as requested by Lamorde, the officers of the EFCC arrested him. They maltreated him. They humiliated him. They denied him his medication. They bundled him into a vehicle and drove him right from the EFCC Abuja office to the airport and flew him to Lagos where they detained him in a cell in their cell. It was in this cell that Senator Ola met me, while I was also detained.

After two weeks of unlawful detention, the EFCC filed false criminal charges against the Senator. After a brief trial, the charges were dismissed by the court in the most devastating judgment ever. The judge declared in unmistakable words that the EFCC had persecuted Senator Ola and suppressed his rights. As a lawyer of over 20 years standing in the bar, I have never directly observed a judgment in which the judge, while delivering a judgment, paused and posed the question: “Why did you charge this man to court when you knew there was absolutely no case against him?” The judge went further to answer his own question, thus: “In my opinion, the only reason is to persecute him and to suppress him”.

While the EFCC officers were tormenting Senator Ola through the criminal justice system, they also went after the judge that delivered judgment in favor of the Senator. They threatened him and filed a petition against him before the National Judicial Council, falsely accusing the judge of bias and prejudice. At the same time the EFCC made the mistake of appealing against the excellent and well-reasoned judgment.

All these measures failed one after another. The criminal charges the EFCC field against the Senator were dismissed preliminarily in a damning judgment against the EFCC. Also, Senator Ola has filed a suit for malicious prosecution against the EFCC and its officers. Further, EFCC’s petition against the judge is baseless and will not get anywhere. It remained the last measure by the EFCC, and that was the appeal it filed against the judgment awarding millions against it. On November 26, 2013, the Court of Appeal upheld the judgment of the lower court. Now the EFCC has to cough up millions to pay Senator Ola.

What happened in these cases is a clear proof that the EFCC is a failed agency. It is dysfunctional and corrupt. In a relentless demonstration of arrogance and impunity, it pursued an innocent man with emotion-laden sense of vendetta and vengeance. In the process, it stumbled and fell at every stage. For instance, if the EFCC had not gone after the Senator with those false charges, it would not have made itself amenable to malicious prosecution suite, which it may lose. And by appealing against a judgment purely out of emotions and sentiments, the EFCC officers have worsened the position of the Commission in this country.

If they had left that judgment at the level of the High Court, the judgment would have amounted to much less in Nigerian legal history. Whereas a judgment of the High Court is not binding on other High Courts, the judgment of the Court of Appeal is binding on all High Courts in Nigeria. Senator Ola’s newly won victory in the Court of Appeal has now set a standard which other high courts must follow, and would now be on law reports with all the adverse record against the EFCC. This is the first time a Nigerian High Court would award such amount in damages against the EFCC. And this is the first time that sort of judgment would be upheld by the Court of Appeal against the EFCC.

There is no doubt that a floodgate has now been opened against the EFCC and their camp would be flooded soon. Many Nigerians have suffered untold hardship in the hands of the EFCC. All these victims can now ride on the solid judgment in the Ola’s case to make claims against the EFCC. In that sense, Senator Ola has indeed made important contributions to the rule of law and justice.

(PART TWO) WHAT YOU MUST KNOW ABOUT NIGERIA’S CRIMINAL JUSTICE: (GET WISE, STAY FREE FROM ARRESTS AND UNLAWFUL DETENTIONS IN NIGERIA) By Emeka Ugwuonye, Esquire

PART TWO

UNDERSTANDING THE BASIC STRUCTURE OF THE POWER OF THE STATE TO ARREST, DETAIN AND TRIAL A PERSON:

You must first understand the structure of the power of the state to arrest, detain and trial a person accused of committing a crime and possibly imprison him upon conviction.

The best way to understand that power system is to know that the government, which is the principal machinery for expression of the sovereign state, is divided into three arms: (a) the legislature, (b) the executive and (c) the judiciary. This is basic information we learned in elementary school, but it has a practical application in the way these critical functions of the state are performed in real terms.

Even though the legislature made the laws upon which you are being arrested, it is actually the Executive and the Judiciary that play a direct role in your arrest, detention and trial and punishment upon conviction. These two arms of government, through their respective agencies, manage and superintend the system of administration of justice, otherwise known as the criminal justice system of a country.

The challenge is whether a criminal justice system is governed by rule of law or by personal discretions of those who administer the system. The answer is that both discretions and rules apply. However, the ideal is to have less of discretions and more of rules. In more advanced countries, there is a higher level of rule of law and less of discretions. Rule of law is more conducive with justice than the executive discretions. Due process is better observed when there is rule of law than when there is discretion.

There is more discretion with decisions made by the Executive than with decisions made by the courts, even though you would often hear the term judicial discretion.

The constitution, together with the rules and the laws, has actually assigned different responsibilities to the Executive and the Judiciary in the administration of justice. The problem is that most of the time in Nigeria, the Executive does not understand the limit to its role or simply does not want to be limited to the role assigned to it by the constitution. We see these problems when the police and the EFCC, whose work is to arrest and arraign a suspect before the judge for a bail hearing, decide to detain the suspect under the pretext of continuing investigation, while trying to grant him administrative instead of a bail by the court. In some glaring cases, the EFCC and the police try to negotiate a settlement between the suspect and the complainants, rather than allow the court to hear the case on the merit. In such situation, the EFCC or the police are assuming the functions of the court.

Apart from the substantive roles assigned to each organ, the Constitution also prescribed or implied certain time frame within which the Executive should perform its role and hand over to the judiciary. In other words, the Constitution and the laws set out the manner in which various events in the administration of justice are to be sequenced and relative to themselves. We see the sequencing problem when, for instance, the police or EFCC would arrest a person before any investigation is done. The law actually requires investigation to be done before arrest is to occur in most cases. But the Nigerian police and the EFCC alter this order of events set by the law and move backward rather than forward.

Just for clarity sake, you must bear in mind that the Executive and the Judiciary depend on each other in the administration of justice. It is a system of interdependency that continues throughout the operation of the system. To illustrate this: even where the suspect has been charged to court and has been admitted to bail by the court, the court could still rely on the Executive to perform its tasks. For instance, if a person admitted to bail fails to show up for trial on the date set for trial, the court would issue a bench warrant for his arrest, which would direct the Executive (the police) to arrest the suspect and bring him to court. If the suspect is arrested, it is largely up to the discretion of the police as to where to detain him and when to take him to court. Also, even after the court has found the suspect guilty, the court would depend on the Executive (the prison authority) to punish the suspect (now the convicted person). So, bear in the back of your mind that the entire system of criminal justice requires the mutual interdependency of the Executive and the Judiciary.

The genius of justice and due process is to make sure that each arm of government is restricted to its roles and that such roles are performed in the sequence and timeframe prescribed or implied by the constitution and the laws of the land. Remember that since there is greater use of discretion in the Executive branch, a person who has been wrongly accused or who has been abusively arrested by the Executive would want his case to go the Judiciary where it would be treated in accordance with rules, and less discretion. The opposite is the case if the accused is really a bad person who has a lot of money and connection. Such a person would want his case to linger at the Executive level where there is a lot of discretion and he could easily buy the decisions of the officials in the Executive arm of government. But for the purpose of this piece, let us assume that everybody arrested wants to observe his due process rights and speedy access to the courts.

POINT OF ENTRY INTO THE JUSTICE SYSTEM: A person’s first encounter with the criminal justice system is usually when the police or the EFCC arrests him or whatever agency in the Executive is doing the arresting. But sometimes, a person may encounter the system before he gets arrested or without being arrested eventually. For instance, when the police or the EFCC invites you for an interview at their offices. You are not yet a suspect, but rather a person of interest to law enforcement.

There are other people who encounter the system without being suspects. Such people are witnesses to a criminal case and people who stood sureties for suspects on bail. These people are not suspects, but they are closely involved in a criminal case that their roles could change the outcome for the suspect. We shall leave them out of this discussion. But do not forget them, as they are very important in the process. So, let us go to that point where you encounter the criminal justice system.

YOU OR YOUR RELATIVES ARE ABOUT TO BE ARRESTED: It doesn’t really make a difference how it happened exactly. But once you are not allowed to leave the police presence and carry on with your business, you are under arrest. There are various details in the rules as to what constitutes arrest, and there is a difference between lawful arrest and unlawful arrest. But we shall leave most of those details at this pint. Let us also exclude the brief period of detention by the roadside when the policemen pull you over. A lot of the time, you are invited to the EFCC or police station because they told you they need information from you about somebody else or about an event. However, at the end of your visit to the station, you may be told that you cannot leave. If that happens, then you are under arrest. This process could be manipulated or abused where the police officers try to detain you, not because they believe you are suspect, but rather simply to force your family members to pay them money.

Once it enters into the mind of the Nigerian officer or the EFCC officer to arrest and detain you, he would immediately begin to formulate some theories and put things in paper to justify your detention. Indeed, they could falsely accuse you of a crime to justify your detention. And in most cases, he begins to set up strategies to extort money from your family members or to please the person who complained against you. They could ask you to make a written statement. They could tell you that you only need to make a statement in order for you to go home. But that is only a trick most of the time.

You should probably not make any such statement, though it is also possible that an honest police officer would be impressed that you promptly answered his questions without objection. In general, it is safer not to answer any question. And if forced to answer questions, you must let your lawyer know you were forced, and your lawyer must protest against the use of force to obtain information at the earliest opportunity; and your lawyer must let the court know in a proper and timely manner.

This is probably something many people don’t understand. They are so eager to go home, so afraid of being detained, so scared of what would happen to them; that they mistakenly assume that it is safe to make a statement at the police station or EFCC office. DON’T MAKE ANY STATEMENT. TELL THEM YOU NEED TO SPEAK WITH YOUR LAWYER FIRST. If they threaten not to release you unless you made a statement, don’t buy that. It is a trick to set you up to justify your detention. Even if they release you after you have made a statement, your statement could still justify your being re-arrested and detained later, and because you made such statements before you spoke to your lawyer, you boxed yourself in somehow.

Some people believe that they are well educated and that they could write good English and that they are innocent and have nothing to fear, therefore they could give a written statement on the spot. That is wrong. The fact is that the more innocent you are, the less prepared you are to make any statement because you have no idea what happened. You have no idea how the various people involved are connected. It may not be the person you thought was under suspicion that really is. Also, that statement you are about to make may be your real first step to plunging yourself into what you don’t know. SO PLEASE REFUSE TO MAKE ANY SUCH STATEMENT UNTIL YOU HAVE SPOKEN TO A LAWYER. If the officer chides you with the blackmailing remark: “Oh, if you are innocent, why do you need a lawyer?” don’t fall for that.

Sometimes, they tell you that you have not been arrested and that you are only a witness. Be careful here. That is a slippery slope. A person who has been arrested has more active due process rights than a person who has not been arrested. It is often the arrest that triggers your due process rights. If you look at Section 35 (2) and (3), of the Constitution of Nigeria, 1999, you would see that the due process rights stated there are meant for the arrested or detained person, and until you are arrested, you may not assert those rights. However, you should still refuse to make any statements even as a witness. Let them arrest you and then you could assert those rights.

Section 35 (2) and (3) provide as follows:

“(2) Any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice.

“(3) Any person who is arrested or detained shall be informed in writing within twenty-four hours (and in a language that he understands) of the facts and grounds for his arrest or detention.”

Note that the above provisions of the Constitution speak of any person “who is arrested or detained” and not about any person who is about to be arrested or to be detained. So knowing whether you have been arrested or detained is critical, and a lot of the times, Nigerian law enforcement agents want to keep in guessing your status.

It is probably better for you to be arrested and you assert your rights than for you to think that you have not been arrested and you give up the above due process rights. In fact, Subsections (2) and (3) of the above provision are Nigeria’s equivalent of the American Miranda rights. So you are better off refusing to make any statement on the spot. They ought not to arrest you just for refusing to make a statement. And if they arrest you, that means they would have arrested you anyway, but then armed with self-implicating statement against yourself.”

(TO BE CONTINUED)

WHAT YOU MUST KNOW ABOUT NIGERIA’S CRIMINAL JUSTICE: (GET WISE, STAY FREE OF ARRESTS AND DETENTIONS IN NIGERIA) By Emeka Ugwuonye, Esquire

PART ONE:

INTRODUCTION: The method and procedure I advanced in this thesis explain two contradictory phenomena. First: when the EFCC or the Nigerian police arrests ex-Governors or highly placed figures, none of them stays more than five days in EFCC cell before being released. Second: when they arrest ordinary or lowly placed people, they could be locked up for up to six months in detention.

The difference is that the ex-Governors could afford expensive lawyers who would normally follow the procedure I recommend here, whereas the average people, if they are able to hire lawyers, hire those lawyers that for one reason or the other fail to follow these steps.

The Governors and the other powerful people know in advance that they are going to be arrested. They see it coming. They prepare for it. They have their lawyers ready. Those lawyers are thus able to file papers immediately their privileged clients get arrested and, sometimes, even before they are arrested. Such timely or preemptive lawyering forces the EFCC or the police to follow the constitution and arraign the rich and influential clients within 24 or 48 hours after they were arrested. And the court takes over and grants bail.

Once you are able to move your case quickly from the Executive to the Judicial arm of the state, you eliminate much of the political and non-legal motivations behind your arrest and detention. The judicial outcome is predictable because it follows legal principles and procedures that are largely non-personal, whereas the outcome of executive actions or decisions is based more on a much unpredictable and highly personalized discretionary process. Thus, moving your case timely from the Executive to the Judiciary is the key to justice. And the greatest challenge in the Nigeria’s criminal justice system is being able to make that transition fast enough.

Even in cases like Speaker Dimeji Bankole’s case, where the Presidency was perceived to be the driving force, and Ifeanyi Ubah’s case, where a well-coordinated and combined corporate interests like Access Bank Plc. and Coscharis Group with significant elements of political power to back them up, drove the entire process; the suspects were able to come out of detention within a relatively short time period. What made the difference was that the suspects were rich and could afford to hire lawyers who followed the procedural steps set out in this paper.

Poor people cannot afford the same quality of legal representation. And they languish in detention needlessly. But it is not really a matter of how rich or how poor you are. My recommendations here are meant to level the playing field and even a poor person with a lawyer of average competence can avoid being locked up for a long time in detention.

Thus, this is to share with you something you need to know in order to help yourself or your friends and relatives if you were to get arrested by the police, the EFCC or the other agencies in Nigeria. And please, don’t be so naïve as to think that this does not concern you. It does. Unlike most other countries in the world, if you live in Nigeria or you are in Nigeria, you don’t really have to do something wrong in order to be arrested. Indeed, the people who do bad things in Nigeria are less likely to be arrested because the real bad people know and plan in advance how to avoid arrests. It is probably the innocent and unsuspecting people like you that get arrested in Nigeria.

WHY IS IT IMPORTANT TO TALK ABOUT THIS TOPIC?

One thing we all have in common in Nigeria, apart from death, is that any of us can be arrested, detained and tried by the State. This is an equal opportunity misfortune. That is to say; it does not matter whether you are rich or poor, educated or uneducated, connected or not connected. You can get arrested anytime in Nigeria. And when arrested, you will face the ugly side of the Nigerian criminal justice. Awolowo was arrested. Gani Fawehinmi was arrested many times. General Oladipo Diya was arrested and condemned to die. General Obasanjo was arrested and condemned to die. General Yar’adua was arrested and he died in prison. If these powerful men could get arrested, then you too could.

Some people make the mistake of thinking that they are so peaceful, so laid-back, too quiet, always at home, always minding their business, don’t drink alcohol, don’t smoke cigarette, don’t womanize; and that they would never do anything to get arrested. That’s not true. You will be deluding yourself to think that way. For instance, the Blackberry phone you are using, which you bought second-hand, has been reported stolen and the police are tracking that phone without you knowing it. Your employer has just been arrested by the EFCC and they are looking for his secretary to arrest her too, just to pressure your employer. And you happen to be that secretary. In Nigeria, the police would arrest you if they are looking for your husband, your son, your brother, your sister, your employer, your co-worker, your relatives, and cannot find them. Such an illegal detention is meant to force the person the police are looking for to turn himself in.

They can arrest a church functionary if they can’t find the Pastor. You only have to be unlucky and in a wrong place at a wrong time to be arrested. You could be set up and be arrested just because somebody else is interested in your boyfriend or in your girlfriend. If you don’t pay rent to your landlord, your landlord could report you to the police to be an armed-robber. If you don’t bribe the police and other government officials, you could get arrested on a trumped up charge. If you live in Washington, for instance, and you quarrel with the wife of the Nigerian Ambassador in Washington, you could get arrested when you visit Nigeria or your relatives could get arrested in Nigeria for that.

Even if you are so lucky never to get arrested in Nigeria, your relative may get arrested. Once arrested, you are faced with the criminal justice system. From my experience, it may not be the arrested person that worries the most when there has been an arrest. It is the relatives. It is the girlfriend. It is the wife. It is the siblings and parents. It is the friends that have to run around in confusion over what to do.

Most of the time that I got called upon to intervene as a lawyer after an arrest has occurred, it was not the arrested person that contacted me. Rather, it is the family members that do the worrying and the running around. So, you need to read what I have to say here about the criminal justice, as it may help you in the future.

If you are a lawyer, particularly the young lawyers, please pay attention to what I am about to share with you here. It would help your clients and it would make your work easy. If you are not a lawyer, that’s even better. Even if you plan to hire a lawyer, it helps if you know what I am about to share with you. Then you can know what to tell your lawyer and what to expect of him when you hire him or her.

(TO BE CONTINUED):

GOVERNOR SULLIVAN CHIME – THE FACTS, THE FICTION, AND THE STORM.

If you are a Governor of a State in Nigeria, everything about you could assume dimensions that are uncommon. And if you are Governor Chime, every rain could become a storm. This assessment is clear and present in the controversy involving the Governor of Enugu State and his wife.

It started by way of a publication by a tabloid/gossip online news website, which painted a picture of a governor’s wife in distress. According to the publication, Mrs. Chime, the First Lady of Enugu State, was in a lockdown, imprisoned in her own home by no other person than her husband, with the support of her family members, including her parents and siblings.

According to the petition allegedly written by Mrs. Chime, she has four key grievances. First, she could leave the Governor’s residence because the Governor had threatened to disown the son she had with the Governor if she left. So, presumably she stayed on in the residence against her will just in order to preserve the Governor’s paternity over their son. Second, she has not had conjugal union with her husband since 2010. Third, her husband, the Governor, does not give her pocket money, and all the money she gets is certain payment made to her as allowance to the First Lady by the State Government. Presumably, the Governor did not stop such allowance going to her. Fourth, she is not quite satisfied with her doctors because they prescribe medicine that she feels worsens her situation. Presumably, Mrs. Chime’s petition admitted that there was need for her to be attended to by physicians, only that she is not satisfied with the treatment she received from them.

On the basis of these grievances, Mrs. Chime’s alleged petition cried out to the human right community, urging it to come to her rescue. Once the alleged petition made it to the public, the rumors began to make the round that the Governor’s wife has some mental health problem. Indeed, her petition admitted that she was suffering from acute depression and she felt suicidal. The counter stories portrayed the Governor’s wife as sick and lacking in credibility. Indeed, there seems to be a consensus that she is not well, and that the reason she is presumably kept within the walls of the residence was as a result of her condition.

As would be expected, given the personalities involved, this matter has generated significant public reaction. First, it has assumed the tone of discussion of the deeply embedded gender inequality in the Nigerian society. There is a view that the Governor’s wife ought to have been sent overseas for the treatment of whatever illness she suffer. That view is particularly serious in Enugu State given that the Governor had extensive treatment overseas last year. So, why not such treatment for the wife, many are wont to ask?

There have been some further developments in this matter. First, Femi Falana, a senior lawyer in Nigeria, has announced that he would be representing Mrs. Chime as her counsel. Second, Nigeria’s usually ineffective Human Rights Commission has sent a letter to the Governor demanding to have access to his wife. Equally of importance is the fact that the Governor, flanked by Mrs. Chime and her brothers and other family members gave a press conference denying the allegations that Mrs. Chime has been imprisoned in her house. In the said press conference, Mrs. Chime made a statement, denying the petition alleged to have been written by her and openly stated that she never hired Mr. Falana to be her lawyer and that she had no intentions to hire him.

With the Foregoing position of facts and scenarios, this controversy is very much set for analysis.

As a basic point of consideration, no one can protect Mrs. Chime from her own family, given the circumstances. Even if the Governor were to let her out (if one insists she is under lock and key), she would have to look up to her family to care for her. And that is the same family that is staunchly with the Governor.

Nigeria does not have a program to care for you if all your family members reject you. Indeed, no doctor and no court would allow anybody else to make decisions for Mrs. Chime apart from her husband or relatives. And if she is so sick, she cannot be allowed to make any important decisions for herself. She would be lacking the mental capacity to retain the services of a lawyer. The only lawyer she may have would be one appointed by Chime or her family.

Can Falana represent Mrs. Chime even without being engaged by either Mrs. Chime or her legal representatives? The answer is definitely no, except in the rare event that a court appoints a guardian ad litem for her. That possibility is so unlikely it could safely be ruled out.

It is important that Nigeria’s new rules for the enforcement of constitutional rights has made away with the requirement of locus standi (an archaic rule that denies access to litigants unless they could show that that controversy involves them in some special capacity). It implies that a person seeking to enforce a fundamental right does not have to be a direct victim of the right violation.

But the significance of the changes in the rules should not be misunderstood. The fundamental right of a person to a counsel of his/her choice has not been replaced by that rule. The changes to the rule relates to the parties to litigation and their right to sue, not to the right of a lawyer to impose himself on an unwilling client. So, we must not assume that Mr. Falana could force himself on Mrs. Chime based on the new enforcement rules.

The right to a lawyer of one’s choice is so entrenched in the Constitution that it cannot be taken away by implication of a procedural rule established to enforce that right. And if we observe that rule here, the question is who excises the choice or decision-making power for Mrs. Chime? It cannot be any lawyer that wants to do so. It cannot be any government commission that wants to do so. It is she or her family.

If there is doubt as to whether she could make such decision herself or through her legal representatives, then mental capacity becomes a foundational issue to be addressed. Who determines whether she has the capacity to make that decision herself? Again it is not simply any lawyer that wants to do so or any commission that wants to do so. It is her next of kin and family members, otherwise her legal representatives. So, as long as her husband and her family are united on that, it is extremely difficult for anyone to intervene legally.

The position of the human right commission demanding access to Mrs. Chime is a fundamental mistake in law. The commission cannot have such access without first addressing the question of legal capacity. Indeed, if Mrs. Chime is suffering from mental sickness, the human right commission may not be qualified to meet her. The only competent people to meet her outside her family members are medical doctors. In such case whatever words or statements made by Mrs. Chime could only be intelligible to a competent medical officers. The idea that she could sit down with the commission or Falana to discuss anything is so inconsistent with logic and common sense.

From a human point of view, if your wife or daughter is suffering from mental sickness, the right thing to do is not to put her before a panel of journalists or lawyers and allow them to chat with her so they would determine if she is well or not. They lack the capacity to make such determination. It is right and proper from the family members of a mentally sick patient to avoid her coming in contact with strangers except for the course of such patient’s treatment.

In light of the foregoing overall, one must view the position of the Governor far more favorably than has been the case. First, the fact that the Governor and the lady's family members are united in this takes care of a lot of things because even if the woman is left on her own, it is her family members and her doctors that would determine the best place for her to be. And they think it is the Governor's residence.

Second, once Mrs. Chime is attended to by doctors, those doctors would make the best medical decision about her. They would determine what course of treatment to give her. So, all the talk of her getting medical treatment overseas is a decision only her medical doctors should help make, and not for the public to make it.

Third, it is important to note that nobody has yet complained that violence is used against Mrs. Chime.

Fourth, there is no motive on the part o the Governor to lock his wife up out of malice towards her. Indeed, it seems easier for governor to divorce his wife immediately he saw she was sick. So, it would seem that the Governor is being a good husband by sticking to his wife in health and in sickness as required by his marital vow.

The situation could change if there is an indication that a crime is being committed against Mrs. Chime in that residence. But in that case, the police would come in. If the Nigerian police believe that crime is being committed either by Mrs. Chime or against her, the police will have right to go to court obtain a warrant and gain access to the Governor's bedroom if necessary.

While we consider all these options, let us not lose sight of the state of Nigerian law, which will decide a lot of these things. As the law is today, Mrs. Chime may actually depend on her family members to enforce her rights. There is very little the Government could do to help protect her from her husband and family working together.

By the way, from all indications, I should be quick to recognize the rights o this woman, and to protect her if these rights are violated or being violated. However, I am sensitive to the various shades of argument that seem to be proceeding outside the margins of law.

On my recommendation to the Governor, if there is a medical concern, there should first be an independent medical evaluation to determine her capacity for anything. The human right commission members are not doctors. They would not even be able to make any determination regarding her capacity. There is no way the Governor would allow non-medical personnel access to his wife if she were mentally sick. If my child or wife were mentally sick, I would not allow a non-medical personnel to come and interview her.

NIGERIA’S DECISION MOMENT IS NOW

To be, or not to be! Fifty-three years after independence, it will be an understatement to describe Nigeria as a country at a crossroad. The country is better described as one that is battling with the existentialist challenge of whether it is to remain one united country, and if so, what manner of country.

From whatever angle you start the Nigerian story, it would reveal monumental and mounting failures: failures of leadership, failures of imagination, and failure of citizenship responsibility. You have seen these failures in form of the colossal corruption and mindless pillaging and plundering of the commonwealth. You have seen it in form of unprecedented degradation and total abandonment of the public infrastructure. You have seen it in the continued failure of the country to raise quality and competent people to lead it. You have seen it in the mediocrity there is everywhere across the spectrum of the present Nigerian leadership elite.

You have also seen it in the blinding poverty across the land, crimes and insecurity, and even an escalation of civil strife, militancy and insurgency that currently grip this country and tears ferociously at every joint. Of the most scandalous and pathetic of all the neglect and failure of the Nigerian leadership is the fact that since nearly four months today, the most promising of our population, the Nigerian university students, have been involuntarily forced out of the university campuses simply because the Government officials chose to divert funds meant for the running of the nation’s universities, into their private pockets. 

In the standoff between the Government and the university staff union, millions of Nigerian youth suffer untold hardship. The immediate and extended implications of this are devastating. To keep millions out of the universities for four months without end is tantamount to waging war against Nigeria. Its impact will reverberate for decades to come during which Nigeria would be placed at a competitive disadvantage among other nations by a wide margin. To cut an entire generation of our youths off from normal pace of human development and progress is an act of war against the country and its people. The fact that this is happening in a democracy is in itself a profound contradiction. Note that since the latest wars began in Iraq and Afghanistan, never have the university students of those countries stayed out of school for four months at a stretch. If countries at war could do better than Nigeria in this one area, what else do we need to show that Nigeria is a failure?

The gravity of the above crisis remains even without mentioning the dangerous conditions in our hospitals, the primitive levels of electricity supply in Nigeria, the violence, the kidnappings and killings of the innocent all over the country, etc. Every person with any modicum of conscience and courage must understand that time has come to face the leaders of Nigeria and tell them some home truth. We must say to the President of Nigeria, the legislative and judicial arm of Government, the Army, the Police, and all the political parties in the land that they failed in the most shameful manner possible. 

We must also admit that the Nigerian citizenry has its share in these failures. It is rare to find any other country where the citizens have been as docile as the Nigerians. We have a duty to challenge our government and demand that we be governed in accordance with the standards of human dignity and the constitution. We cannot fold our arms and watch as leaders of the country compromise their sacred oaths of office – among them, the oath to protect the interest of Nigerians. In the past months and weeks, members of the Nigerian leadership have been consumed by their anticipatory maneuvers calculated to give each politician an edge in the 2015 elections. In all that, no attention has been paid to the needs of the average Nigerian. Poverty widens. Apathy and indifference become the order of the day. Rancor and resentment and ethnic hatred equally abound, all the while our leaders are busy seeking only to preserve themselves in privileged positions, from where they have never helped the people.

As at this moment, the situation with Boko Haram insurgency seems to have gotten worse in the past weeks. At the same time a gladiator of the Niger Delta militancy has been issuing all manner of threats of dire consequences if the President did not win a full second term in office in 2015. These drums of war had only grown louder with each passing day. In the mean time, the average Nigerians suffer.

In view of this, I am compelled to state that the independence of Nigeria as a sovereign state would only amount to something when Nigerians are ready and willing to demand for their rights. As a lawyer, particularly as an international human right lawyer, I must challenge the President of Nigeria and other leaders in this country to live up to their oath of office and stop compromising the future of our country ever so readily.

All the social conditions and the ominous characteristics Nigeria had in the 1960s are present today in Nigeria. The only difference is that those who ruled Nigerian at independence were many times better trained and better informed than those in power today. Yet, those leaders were not able to prevent the cataclysmic events that tormented this country in the second half of 1960s. The implications of this reality are troubling. We are faced with crisis in all aspects of Nigerian life. It is a pity that our leaders have been insensitive to this dire situation. Today, instead of celebrating a country that ought to have come of age at 53, we are lamenting the senseless and preventable killings of innocent Nigerians, the mind burgling looting of our national resources, the disastrous failures of leadership and permanent tensions and threats to the survival of the country as one united country. Time has come for the citizens to rise to demand for what is due to them. If the country remains an infant, let the people at least grow up and act like adults.

Emeka Ugwuonye, Esquire 

President, ECULAW GROUP

Founder, The Due Process Advocates

THE MAKING OF THE WAR OF THE TRIBES: (A State Government Program versus the Constitution of Nigeria).

THE MAKING OF THE WAR OF THE TRIBES:

(A State Government Program versus the Constitution of Nigeria).

By Emeka Ugwuonye, Esquire August 9, 2011

 

Whether the Governor of Lagos State realized it all along or not, his government’s bizarre policy and program of deporting Nigerians from Lagos to other states have re-injured the unhealed wounds of ethnicity in Nigeria. There is no doubt that the political leadership of Lagos State has realized the enormity of its mistake on this. Despite the exterior calmness and even bravado exhibited by the Governor, he seems to understand that he has placed himself on a questionable side of history, though he still has the opportunity to reinvent himself and reset his political vision for the country.

As a lawyer, the Governor must have understood that these deportations are probably in violation of the constitution of Nigeria. You have no business forcibly removing from Lagos State somebody who has the constitutional right to return with the next bus. And if he doesn't return, it would not be for lack of legal right to return, but rather because of the physical and economic limitations the act of the State has imposed on him. Any action of the Government that so drastically guts the fundamental rights of the citizen must require a compelling necessity to survive any judicial review.

What was this compelling necessity to justify the actions of Lagos? None, really. It all boils down to the incompetence and lack of imagination on the part of the administration. Every government, be it county or municipal administration, should have a program on how to alleviate poverty and reduce destitution among the most vulnerable part of the population. Such program must involve a genuine cost and some wealth redistribution formula, however minimal. Never before has a government with any claims to responsibility resorted to removal as its choice program for poverty alleviation and prevention of destitution. It is a mark of a total lack of vision on the part of Lagos State Government.

To highlight the complete inability of Lagos to justify these removals, it is important to consider the explanations or justifications that Lagos has advanced so far. First, Lagos claimed that it notified Anambra State Government of the deportations. But the evidence shown by Lagos suggests nothing other than a confusing and irrational government program. There was a letter that spoke of 14 detainees/deportees. Yet, there was no further explanation for the deportation of 72 people to Anambra State. There was no indication that Anambra State Government concluded the confirmation process intended in the correspondence from Lagos. No indication of the date of deportations. No indication of the manner of the deportations. No indication of who would take over once the deportees were in Anambra State. No arrangement whatsoever on what would happen to the deportees beyond the River Niger Bridge. It showed a poorly considered and thoroughly dehumanizing protocol for the handling of the Nigerian poor. 

The second attempt by Lagos to justify these deportations was some equally confusing and distorted account of correspondence from Akwa Ibom State Government, concerning two metal patients rescued and treated initially in Akwa Ibom and who indicated that they had families in Lagos and who could not be left alone without care. In any event, Akwa Ibom State has openly refuted Lagos’ account of what transpired between the two states and actually went further to distance itself from the Lagos deportation program.

A third justification by Lagos was to explain away these deportations by claiming they were a form of family unification program meant to unite the deportees with their “families”. But looking at what happened to the 72 people deported to Onitsha, it was clear that there was no attempt at unifying them with their families. The handling of the Onitsha deportees was nothing other than a clear endangerment of the health and lives of the deportees. And quite troublingly, Lagos State Government defined “family” to mean nothing more than the “presumed state of origin” of a deportee.

The fourth justification by Lagos was to resort to some vague but virulent reference to the ‘legendary generosity” of Lagos to “foreigners” who live in Lagos State. The Government agents spoke of the hospitality of the Lagos people. The shift from a reckless government action to the collective will and desire of the millions of people who might, if provoked enough, attempt to trace their ancestral origins to Lagos State territories could only be alarming. It looked like a complete last resort for a government that has lost the argument.

The final justification to date was the continued deportation, this time to Osun State, to avoid any ethnic underpinnings of the deportations to Onitsha coming to the surface. The fact that the next set of deportation after the one to Onitsha had to head to Osun State was predictably disturbing and coming at a time that the government continued its argument on the generosity of Lagos people to “foreigners”.

The greatest problem emanating from all this is definitely not the pain and suffering endured by the deportees, as bad as they may be, but rather it is the fact that these events have unleashed among Nigerians the ugly monster of ethnic disunity and the hostile language of breaking up the country. In a sophisticated world, people would have resisted the temptation to slip along ethnic lines on this matter. They should have understood the wisdom of not playing the ethnic card, which an apparently misguided government has dealt them. But the people are not sophisticated or the leaders of these divisions have a different agenda altogether. Politicians and such other provocateurs have used these events as a justification to pounce on the highly inflammable sensibilities of dissatisfied Nigerians.

The first to fire a shot in response was the Governor of Anambra State, who wrote to the President of Nigeria on the matter without first a phone call to his colleague in Lagos and without any explanation why his Government did not take the matter seriously since April of 2013 when it first became aware of the program. The second person to fire a shot was former Governor Orji Uzor Kalu, who threatened legal action and escalated the ethnic argument to some obvious fanfare. Then came the most rabid of them all in the person of Chief Femi Fani-Kayode who has used these incidents as justification to unleash a deep-seated hatred and bigotry toward the Igbo people, hoping in the process to give himself some new relevance as the warrior of his tribe. 

Nigerians must deny the politicians and the provocateurs the opportunity to exploit this problem and plunge the country back into the hostilities of the 60s. The national unity that has been preached, perhaps in words only, by Nigeria is much damaged by the things said or written on both sides of the divide. The fact is that Lagos is about the largest city in Nigeria. It is also among the largest cities in the world per population. It was once the political capital of Nigeria, and presently the commercial capital of the country. Naturally, it would become the most diversified city in Nigeria where Nigerians from all parts of the country would settle and make their homes. It is in that context that Lagos could be rightly referred to a no-man’s land. 

The duty is on all sides to pull back from the precipice and reconsider their arguments. It is counter-productive to use this as a justification for waging an ethnic warfare. The whole matter could be addressed squarely from human rights point of view without reaching the ethnicity angle. Let this matter remain the policy and program of a state government versus the Constitution of Nigeria. Let no one make this a Yoruba versus Igbo affair. That would be most unfortunate and serve the interest of only those who want to divide the country for personal gains.

THE SENATE JOINT COMMITTEE’S REPORT ON EZU RIVER BODIES IS HIGHLY FLAWED AND CONSTITUTES AN ACT OF COVER-UP AND OBSTRUCTION OF JUSTICE.

The report filed recently by the Senate Joint Committee on Police Affairs and National Security and Intelligence, which charged itself with the task of investigating the discovery of the “strange dead bodies” on the Ezu River is a hopeless failure and an act of cover up. Rather than shedding light on the mystery surrounding one of the most heinous crimes in this country, the Report places the Nigerian people further in the dark over what really happened. Also, this is a disappointment for the entire people of the Eastern Nigerian, particularly the people of Anambra and Enugu States, who, more than other Nigerians, would like to know what truly happened.

The Committee could be faulted on many grounds, including, but not limited to, the following:

(1) It was not clear what the mandate of the Committee was. It seemed that this was a committee of self-appointed members of the legislature propelled by legislators from Anambra State constituencies who were either embarrassed that this sort of incident occurred in their state or who were out there for some political opportunism. With such confused and questionable motivation, it may not be any surprise that the Committee could not rise to expectations.

(2) The Committee did not communicate to the public any clear terms of reference. It was not clear what it was supposed to actually do or what investigation it was supposed to conduct. In view of the several issues at stake, it would have been better for an effective and well-purposed committee to set out in clear terms what it wanted to do. Instead, it merely engaged in a half-baked jamboree of photo-up opportunities on the riverbank, and nothing more.

(3) The limited hearing that was held was poorly done. The Committee did not publicize its hearing in advance with any plans to solicit the general public for information. The claims of MASSOB were not adequately investigated. The families of the named MASSOB victims were not exhaustively interviewed. The Committee could not guarantee witnesses protection against persecution for their testimonies. The Committee could not provide logistical support for witnesses willing to travel to Abuja to testify. The Committee did not speak with the villagers who first discovered the bodies. Instead, it relied on second-hand reports and hearsay accounts of those who claimed to have heard from those who first saw the bodies.

(4) The Committee did not mobilize inter-governmental agency support for its investigation. There was nearly a total absence of expert involvement in the investigations. The individual lawmakers involved in the committee handled the investigation directly themselves. Yet, nearly none of them is a trained forensic investigator or lawyer experienced in matters of this nature. Rather than having the investigation involve the work of experts with technical know-how in the matter, the legislators proceeded like a motley crowd of traders. There was no involvement of the Ministry of Justice, as ought to have been. Nobody was placed even on administrative leave while the investigation was on. The people under suspicion remained in control of key aspects of the facts under investigation.

With the above fundamental limitations, it would be unreasonable for anybody to expect anything seriously worthwhile to come from this Committee. Yet, the people had to take the Committee serious because it came from highly placed lawmakers who ought to appreciate the gravity of these events and the need for meaningful answers and explanation of what happened.

The Report itself can be faulted on the following, among many more, grounds:

(1) The Report could not clearly establish the number of victims. It says there are 19 victims. Yet, it has no basis for this except the words of the villagers, even though the Committee never spoke with the actual villagers that saw the bodies. Indeed, the investigation did not advance the course of truth on this point beyond what the villagers knew immediately they saw bodies in their water. It is an unfortunate reversal of logic and a terrible disappointment that the Committee Report would muddy up the facts as to the number of the bodies dumped in the river. Without some light as to the spot where the bodies were dumped in the river, the time they were dumped, the water currents at the spots or flow channels along which the bodies floated, who did the dumping, whether they were dumped with special effort to submerge them, the motive of the killers, where the victims came from; without these, it is extremely childish to come up with any firm conclusions on the number of bodies dumped in the water. This single error is enough to erase any belief that this Committee was competent or capable of meeting the demands of the public for the truth.

(2) The Committee’s Report leaves as many doubts as in the beginning as to the motives for the killings. Indeed, the Report went into a far-fetched theory of some inter-village wars involving some states, but could not offer any guidance as to the logistics of the bodies moving from the village battlefields to the river, at an identifiable spot.

(3) The Report automatically believed the denials by the prime suspects – the police. There was no investigation of the police officers likely to be involved. All that the Committee did was to ask the police if its men committed mass murder and the police of course denied it. The Report is just as ridiculous as believing that the culprits would come forward and confess. The Report could not tell why it accepted the story of the police as opposed to rejecting it or investigating further. In this respect alone, the Report is a travesty and a disgrace.

(4) The Report dwelled on irrelevances and contradicted the facts it relied upon. For instance, the Report was quick to debunk the idea that all the victims were dressed in boxers, by asserting that some were dressed in wrappers. Yet, it still entertained the village battlefield theory. Does it mean that the villager warriors were fighting dressed in wrappers while some were dressed in boxers. Also, given this battlefield possibility, how come there was nothing about the weapons used by the victims in the village war?

(5) At the beginning of this investigation, there was effort to ascertain the implication of the manner in which the government of Anambra state and the police command handled the scene of crime and the bodies, including the hasty burials of the bodies. Yet, the Report is silent on that. At least, it ought to have come out and clearly exonerate the state government or shed better light on the activities of its agents.

(6) There was a public health hazard in the dumping of dead bodies in a river that supplied drinking water to the relevant villages. The Report failed completely to address such concerns.

The Report is completely a disaster and in so far as it pretends to have exhausted the investigation and is able to proffer some explanations, it has become an obstruction of justice and cover-up in itself. Indeed, the interim report of the Commissioner of Health for Anambra State on the matter is far more coherent and logical and honest than this report, yet incomplete.

Notwithstanding the present charade called Report, the Government of Nigeria still has not explained what happened in Ezu River. The efforts of NGOS and human right organizations such as the organization I represent must continue its to seek justice and truth in this matter. It will be noted that I had personally filed a complaint with the ICC over this matter. However, out of respect and courtesy, once I learned that a Nigerian Senate Committee was investigating this matter, I stayed further action to give the Nigerian authorities an opportunity to address the problem. Now that a Report has come out, which is nothing but hogwash of a cover-up and obstruction of justice, I shall step up all alternative measures for justice. Nigerians need to know what happened. Nigerians need to know who killed those people, who they were and why they were killed. And I will do my utmost to help them get answers to these questions.

Emeka Ugwuonye, Esquire