POLITICAL KILLINGS AND SLOW JUSTICE IN NIGERIA

 

CHAPTER ONE

                                                            INTRODUCTION

1.1        Background to the Study

Nigeria’s Police chief, Sunday Ehindero, alerted the National Assembly of the alarming security situation in Nigeria just before the 2007 elections;

“Now coming down to the security situation in the country in relation to the 2007 elections, I have to inform you that we have arms in large quantities in our society; proliferation of arms and ammunitions in our society…There is a big threat of proliferation of arms and ammunitions in this country. Some politicians do carry arms during rallies. Students have been caught with arms and ammunitions on their way to conventions, armed robbers carry sophisticated arms more than ever before. Cultism is rampant in our colleges, polytechnics and universities; some students’ cultists have turned to armed robbers; some have been turned into tools in the hands of some politicians. From May 1, 2005 to August 22, 2006, over 1, 265 armed robbery suspects were arrested, 724 arms recovered and 27, 825 ammunitions were also recovered. It is a truism that election plays an important role in our democracy; in fact, without election, there cannot be democracy. However, elections since the 1960s have had their own problems of violence and acrimony. As we approach the 2007 elections, there appears to be a spate of political violence. Politics is about competition for power and of all the criteria of development, be it social, economic or cultural; it is the political criterion that takes the lead particularly in our own system. This is because the stakes are high. That is why all methods are used to achieve political power, including violence. There ought to be a fundamental moral base in politics and the Machiavellian principle of the ends justify the means may not be acceptable”. ⁱ

Writing in a similar vein during the same period, Edwin Madunagu stated “Of all the political developments that currently bother me, the one most difficult for me to analyze and comprehend appears be the new regime of political assassination in the south-east zone of Nigeria. General Sani Abacha's junta first professionalized political assassination, and then developed it into a systematic method of fighting the "enemies" of the state in general and the supporters of Chief MoshoodAbiola in particular. After the death of the general and the inauguration of Obasanjo's government, the nation enjoyed a brief assassination-free period. Then the evil regime returned- thus confirming the thesis that a political weapon, once it emerges out of historical circumstances, does not simply disappear, and is not withdrawn at will… I can, without being cynical, advise a Nigerian politician who is scared by the specter of political assassination to disengage publicly from politics, and be seen to have done so… Whereas before Olusegun Obasanjo became president, the struggle was not altogether a do-or-die affair, it has now become so”ⁱⁱ

A magazine columnist in Nigeria once wrote “If you want to die, join Peoples Death Party (PDP)”. He was actually making reference to the spate of killings, although not exclusively, but more rampant within the ruling People’s Democratic Party (PDP) in Nigeria. The killing of two gubernatorial aspirants in the Southwestern States of Lagos and Ekiti, both PDP gubernatorial aspirants, within three weeks of July and August 2006 further brought to the front burners the bane political assassination has brought to Nigeria’s fledgling democracy. Since the 4^th Republic political took off in 1999, there have been many unresolved assassinations believed to be politically motivated. This development has again brought into focus the unfolding dangerous trend in politicking in Nigeria. High profile political killings are gradually becoming a potent tool used by Nigerian politicians to settle political scores. The list of persons who fell to the bullets of the assassins or narrowly escaped such includes Chief Bola Ige, Harry Marshall, Alfred Dikibo, Andrew Agom, Funsho Williams, Ayo Daramola and so on. In the period under review, the struggle for power went beyond mere politicking and assassination became a “continuation of politics by other means”. This paper will not focus on other cases of political violence that have become almost a daily occurrence in Nigeria. It focuses rather on cases of political assassination between 1999 and 2007.

Nigeria, like many other countries of the world usually undertake legal and judicial reforms as efforts geared towards their overall development programs. The reason for this is also quite obvious. Nigeria finds herself in a situation where her judiciary advance inconsistent case law and carry a large backlog of cases. The resulting implication is the eroding of individual and property rights and by implication, the stifling of the private sector and its growth. There is ultimately also, violation of human rights. Delay in justice delivery affects fairness and the efficiency of the judicial system.  This is also acting as an impediment to the public's access to courts, which, in effect, weakens democracy, the rule of law and the ability to enforce human rights or even economic interest.

One of the ways of evaluating an effective justice delivery system is by the number of cases that it manages to dispose off and the time taken and even the process involved. The Nigerian judiciary reputed to be the last hope of the common man, crumbles under the weight of a heavy caseload. The criminal justice system in the country endures prolonged delay in the administration of justice. There is also the congestion of courts with inadequate infrastructure, the congestion of prisons with daily influx of either accused persons or suspects awaiting trial with several instances of arrest and detention for unduly lengths of time even before trial or conviction. A cardinal principle of justice under the

Nigerian legal system is the presumption that a person accused of any crime is innocent until proven guilty^[1] . However, the continued incarceration of an accused person without speedy trial questions the claims to observance of fundamental rights of liberty and fair hearing^[2] .

In the context of judicial reform programs, some measures have been taken to reduce the duration of the litigation process by identifying avoidable sources of delay, which tend to slow down and even halt proceedings unnecessarily. Such reform include repealing or amending some laws that have probably lost touch with present reality and enacting of new ones that can meet the needs of the ever-changing socio-economic conditions. It is true that there have been some reforms in the Nigerian judiciary. This for example had led to some changes in the Civil Procedure Rules of most courts, passing into law of the new Administration of Criminal Justice Act 2015 and Evidence Act 2011.

The necessity of such reforms is obvious. The truth is that no combat against corruption for instance or crimes such as terrorism, now plaguing the nation can be said to be credible or complete without an effective and robust judicial system that is to be relied on. It is only such properly administered judicial system with speedy capability of guaranteeing individual rights and freedoms, as well as protecting victims from the arbitrary exercise of power while punishing criminals, that is an essential catalyst for good governance and uplifting the socio-economic wellbeing of the nation and her citizens. Everyone, everywhere in Nigeria should enjoy the equal, but also speedy protection of the law if there is to be both justice for all and meaningful development.

 

1.2        Statement of Problem

It is a fact well known that the issue afflicting the judiciary is the problem of undue delay in determining cases. In Nigeria, like some other developing countries, the legal processes are usually very slow and complex. In the course of the trial process when it eventually starts, it is not unusual in Nigeria to find a matter (civil or criminal) lingering for up to fifteen years, leaving concerned parties frustrated. In Ariori v. Elemo^[3] for instance it took about 23 years before final determination of the case at the Supreme Court. Union Bank

Nigeria Plc v. Ayodare and Sons (Nig.) Limited^[4] was instituted at the State High Court in 1989 but was not finally disposed off by the Supreme Court until 2007 – a period of 18 years. The trial court gave judgment in Adisa v. Oyinwola^[5] in 1985 while the appeal was not determined by the Supreme Court until year 2000 – the appeal lasted for 15 years from the Court of Appeal to the Supreme Court. In addition, in Abayomi Babatunde v. Pan Atlantic Shipping And Transport Agencies Ltd &ors, ^[6] a matter that began at the High Court in Lagos on 18^th April, 1988, was finally settled at the Supreme Court on the 20th day of April 2007.

The very negative effect of this type of situation is appreciated more when one realizes that it is now a fact that foreign investors are attracted to legal systems that are effective in dispensing justice speedily. Therefore, the effectiveness and speed of a judicial system also determine the economic performance of the country. Without an effective justice administrative system, development in all its ramifications, including meaningful legal protection of human rights will remain a wish. An effective justice delivery system is a non-negotiable necessity. It is a condition precedent not just for affluent and economically advanced societies and economies, but also of any developing society and economy like Nigeria.

1.3        Aims and Objectives of the Study

The main aim and objective of the research is to evaluate the factors responsible for political killings and slow justice administration in Nigeria.

1.4        Justification for the Study

Not many people are aware of the innovative and positive contribution of the new

Administration of Criminal Justice Act 20015 and its implication for criminal trials in Nigeria. There is a need to create such awareness. In addition to this fact, with other reforms that have been made towards an effective justice administration in Nigeria, such as the passing into law of the Evidence Act 2011, there is a need to know how much have, or can really be achieved with such reforms, especially since they are both key to trials in court, whether criminal or civil.

As it relates to the Evidence Act 2011, although it has been in force for over four years, it is sometimes surprising to see legal practitioners and even members of the bench cite the repealed Evidence Act^[7] as the applicable law of evidence in our courts. For example, in the judgment delivered by the Rivers State Governorship Election Petition Tribunal sitting in Abuja on 24^th October 2015,  in Petition No. EPT/RV/GOV/04/2015 (Hon. Dr. DakukuAdolPeterside& Anor v. Independent National Electoral Commission (INEC) &Ors) (unreported), the tribunal consistently cited provisions of the repealed Evidence Act. There is therefore the need for consistent and focused study of its provisions by all persons involved in the justice sector in order to ensure its smooth application. Furthermore, it is the researcher‟s opinion that policy makers and members of the legislature have a positive duty to evaluate the effectiveness of reforms made so far. This should be done in order to see if the ideal behind such reforms has been actualized.

1.5       Scope of the Research

It is a fact that several factors outside the judiciary at the end of the day determine the effectiveness of a justice administrative system. The constraints or limitations preventing people from enjoying an effective justice delivery system are both within the formal justice system and outside it. It is the combined results of such constraints that affect the efficiency of justice administration in Nigeria. However, this research is limited to looking at the innovative provision and reforms of specific legislation and how they tend to actualize speedy dispensation of justice or efficient justice administration. The focus will include innovative provisions in The Administration of Criminal Justice Act (ACJA) 2015 and Evidence Act 2011. These reforms have specific and direct bearing to the pace, speed, or efficiency of trials before the courts, whether criminal or civil. Discussion is limited only to innovations contained in these identified reforms.

 

 

1.6       Research Methodology

The research will adopt a doctrinal approach to research. Primary source of data analyzed for this purpose will include statutes like the Constitution of the Federal Republic of

Nigeria 1999 (as amended), the Administration of Criminal Justice Act (ACJA) 2015, the Evidence Act 2011, as well as judgments of superior courts of record. Secondary source of data will include opinions and suggestions of experts in the area of research as expressed in textbooks, journals, paper presentations, and other platforms. The research will also adopt a teleological approach to research where as a researcher, personal experience is used to proffer or arrive at definite findings because of the researcher‟s personal experience as a legal practitioner.

1.7       Literature Review

The researcher had identified the concept of Legal Pluralism as a major challenge affecting the effectiveness of the justice administrative system in Nigeria. This exists because of the introduction of British laws into Nigeria to co-exist with the indigenous systems of customary and Islamic Laws, which has produced a tripartite system of law. Aguda, in his book titled “The Challenge for Nigerian Law and the Nigerian Lawyer in the Twenty-First Century”,^[8] in proffering solution to this identified challenge, called for the teaching of Customary Law and Islamic Law in all our universities as part of subjects offered for basic degree in law (i.e. LL.B). The researcher disagrees with this position. There are several customary law practices of various communities, so how many of these should a lawyer or law student grasp? Even the Sharia or Islamic Law is administered in some jurisdictions as a variant of customary law, and in some other jurisdictions, as a distinct and separate system, while at the same time, almost completely ignored in other jurisdictions or ethnic groups. The researcher is of the opinion that a better approach is exploring the possibility of integrating the tripartite system of law and unifying the diverse systems of court. This by the way is long overdue.

The researcher had amongst other things in the research, highlighted on innovations and the changes brought by the Evidence Act 2011. In their article titled “The Evidence Act, 2011: Closing the window for the application of common law rules of evidence”, as published in the Journal of Contemporary Law, Arishe&Oriakogba^[9] had posited that based on section 3 of the Evidence Act 2011, “the window for the application of common law rules of evidence in Nigerian courts has been closed and that our law of evidence is now strictly statutory.” Their position is because Section 5(a) of the repealed Evidence Act provided that, “Nothing in this Act shall prejudice the admissibility of any evidence which would apart from the provisions of this Act be admissible.” According to them, Section 3 on the other hand of the Evidence Act 2011 provides that “Nothing in this Act shall prejudice the admissibility of any evidence that is made admissible by any other legislation validly in force in Nigeria.”

The researcher disagrees with the position of the said authors. In the researcher‟s opinion, there is indeed the need to make explicit provision as to the power of the court to resort to common law rules of evidence in determining the admissibility of a piece of evidence that is not specifically dealt with in the Act. However, such silence in the said Act cannot be bases for the position that “the window for the application of common law rules of evidence in Nigerian courts has been closed”. It is indeed therefore very doubtful if the law maker intended to completely exclude the application of the common law rules of evidence on matters of admissibility of evidence especially when it does not contradict the Act, or where the Act is silent. In fact, in view of this silence, the decision of the apex court in Queen v. Itule^[10] and Rex v. Onitiri^[11] remains valid. The position of the court in these two cases is to the effect that Nigerian court could rely on such common law rules to admit a piece of evidence where the Evidence Act was silent on a particular subject-matter provided that there was nothing in the Act that explicitly rendered such evidence inadmissible.

In discussing some of the improvements or innovations of the Evidence Act 2011, the researcher had made comparisons of the implications of section 26 and 196 of the

Evidence Act 2011 and section 25 of the repealed Evidence Act. Section 192 of the

Evidence Act 2011 provides that “A statement in any document marked “without prejudice” made in the course of negotiation for settlement of a dispute out of court shall not be given in evidence in any civil proceeding in proof of the matter stated in it”. In his paper presentation titled “The Evidence Act 2011-An Appraisal”^[12] , Hon. Justice Akinyemi noted that the well-established common law principle that a document marked „without prejudice‟ made in the course of negotiation or settlement of dispute shall not be admissible as evidence between the parties, has now being codified by Section 196 of the new Act.

This position is not entirely correct. From a literal interpretation of this section 196 of the Evidence Act 2011, the exclusionary rule will apply here only to statements contained in documents marked “without prejudice” made in the course of negotiation for a settlement of a dispute out of court. The implication here is that a document marked “without prejudice” which was not made in the course of negotiation for a settlement of a dispute out of court cannot be excluded pursuant to section 196 of the Evidence Act. Section 196 of the Evidence Act, 2011 has a limited application than both section 25 of the repealed Evidence Act and section 26 of the Evidence Act 2011 which both provides that “In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given or in circumstances from which the court can infer that the parties agreed together that evidence of it should not be given.”  In any case, pursuant to section 26 of the Evidence Act 2011 (and even section 25 of the repealed Act), a document marked or not marked “without prejudice” would still be inadmissible in civil cases. This is because “In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given or in circumstances from which the court can infer that the parties agreed together that evidence of it should not be given.” Therefore, once the court can infer that the parties agreed together that evidence of it should not be given, or there is an express condition that evidence of it is not to be given, then it will be inadmissible. Marking a document “without prejudice” is not the only means to achieve this.

Similarly, the researcher had discussed the prospects of Information and Communication

Technology (I.C.T) in enhancing the effectiveness of the justice administrative system in Nigeria. Patrick, (Senior Advocate of Nigeria), in his presentation titled „Speedy Administration of Justice, Which Way Forward‟^[13] , made a very good case for the inclusion of technology in the judicial process as a means of ensuring speedy administration of justice in Nigeria. However, he did not elaborate on what specific type or types of technology can, or should be deployed. He also did not state how, or the areas of the judicial administrative process where such can be deployed. The researcher does justice to this aspect especially in analyzing the type of technology, the ways, and the specific areas in the justice administrative system in which such technologies can actually be deployed.

Finally, the researcher had also appraised the importance and contributions of The Administration of Criminal Justice Act (A.C.J.A) 2015, towards an effective justice administrative system in Nigeria. In his paper titled “Summary of Some of The Innovative

Provisions of The Administration of Criminal Justice Act (A.C.J.A) 2015”^[14] , Professor Akinseye-George, (Senior Advocate of Nigeria) , described as novel and commendable the provision of section 296 of the Administration of Criminal Justice Act (A.C.J.A) 2015.

According to him, it will address the problem of „holding charge‟. The researcher, with all due respect to the professor and Senior Advocate totally disagree with this position. As a matter of fact, the combined effect of section 293 to 296 of the said Act is nothing more than the given of statutory flavour to the ugly holding charge syndrome under the guise of “Applications for Remand”.

By virtue of these provisions, a suspect arrested for an offence which a Magistrate Court has no jurisdiction to try shall within a reasonable time of arrest be brought before a Magistrate Court for remand. The Court is then authorized to remand the suspect in prison custody if the Court is satisfied that there is probable cause to remand the suspect pending the receipt of a copy of the legal advice from the Attorney-General of the Federation and arraignment of the suspect before the appropriate court. The remand order shall be for a period not exceeding fourteen days in the first instance, and the case shall be returnable within the same period.

Such order can be renewed for a further period of fourteen days on application in writing with good cause shown. After this period of 28 days and the suspect is still in custody, the Court may grant the suspect bail. However, the court may instead of granting the suspect bail, issue hearing notices on any of the authorities in Section 296(4) of the Administration of Criminal Justice Act, 2015, and adjourn the matter for a period not exceeding fourteen days with the suspect still remanded. At the return date, if the authority concerned requests for and shows good cause to another remand, the Court may remand the suspect for a final period not exceeding fourteen days for the suspect to be arraigned for trial before an appropriate court. At the end of this final period or if good cause is not shown by the said authority, the suspect shall be immediately released from custody.

In the researcher‟s opinion, this is a big step back in the fight for the protection of rights and a truly worrying inclusion. The continued incarceration of a suspect under this circumstance is absolutely unacceptable in a democratic society. One may argue that a suspect could be in custody for about 56 days by virtue of the above provisions. Whether such provision enhances fairness or the presumption of innocence as a fundamental principle of the criminal justice system as guaranteed in the constitution is very doubtful

 

[1] Section 36 (5) 1999 Constitution of the Federal Republic of Nigeria Cap. C 23 Laws of the Federation of Nigeria (L.F.N) 2004

[2] as expressed in section 36 (1) of the said 1999 constitution.

[3] Ariori v. Elemo, Supreme Court of Nigeria, (1983) 1 SC 13

[4] Union Bank Nigeria Plc v. Ayodare and Sons (Nig.) Limited [2007] 13 NWLR (Pt. 1052) 567

[5] Adisa v Oyinwola [2000] 10 NWLR (Pt.674) 116

[6] AbayomiBabatunde V. Pan Atlantic Shipping And Transport Agencies Ltd &ors, Supreme Court of Nigeria, S.C. 154/2002

[7] Cap E14, Laws of the Federation of Nigeria 2004

[8] Aguda, T.A. (1988) the Challenge for Nigerian Law and the Nigerian Lawyer in the Twenty-First Century,Federal Government Printers.

[9] Arishe, G.O. &Oriakogba, D.O “The Evidence Act, 2011: Closing the window for the application of common law rules of evidence” (2013-June 2014) 2 Journal of Contemporary Law 151, 152.

[10] [1961] 1 ANLR 481

 

[11] [1946-1949] 12 WACA 58.

 

[12] Hon. Justice Akinyemi, A. “The Evidence Act 2011: An Appraisal”, being a paper presented at the Ogun

State Bar and Bench Forum, on Thursday, 11th July, 2013 at the June 12 Cultural Centre, Abeokuta. pp 27 - 28

[13] Patrick, I.N. (Senior Advocate of Nigeria), “Speedy Administration of Justice, Which Way Forward!!.” being a paper presentation at the Nigerian Bar Annual General Conference, held at The Civic Centre, Port Harcourt, Rivers State, From 21st To 27th, August 2011.

 

[14] Professor Akinseye-George, Y. (Senior Advocate of Nigeria). “Summary of Some of the Innovative Provisions of the Administration of Criminal Justice Act (A.C.J.A) 2015” (unpublished).

 

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