Time limit of 180 days for election petitions inadequate, says Akpedeye
JUST few days to the general election in the country, tensions are so high. Some groups are already clamoring for postponement while some are kicking against it, insisting that the Independent National Electoral Commission (INEC) must conduct the elections as scheduled.
In the last few weeks, Nigerians have witnessed reign of impunity including destruction of vehicles belonging to political parties, harrasment of political opponents, brutal attacks of innocent people at party congress and primary elections, assault on political leaders,throwing stones at leaders and top political leaders making inciting statements that could provoke ethno-religious riot and so on.
One thing reassuring in all these is that they are adequate and elaborate provisions in the Constitution of Federal Republic of Nigeria which deals with various issues or problems or litigations that may emanate from the coming elections.
Legal practitioner and Senior Advocate of Nigeria, Dafe Akpedeye is concerned that the 180 days limit within which to hear election petition stipulated by the constitution is insufficient.
He said: “I can see the draftsman intent in limiting the time for prosecuting election petitions. Because our politicians perceived the Nigerian type of democracy as a means to an end. They would do anything to get to power, including rigging elections, snatching ballot boxes, employment of killer squads, assassination, maiming, kidnapping etc. It is as a result of all these that election petitions litter our courts and tribunals have now become the albatross of the Nigerian Judiciary.
“As a result of the experience whereby election petitions took up to four years before being finally resolved, leading to the disruption of the political equilibrium in the country, the 1999 Constitution was amended to limit and delineate the periods within which election cases should be filed, tried and concluded, including the appeal proceedings.
“The niggling problem about Nigerian politics in particular and Nigeria in general is that, in an attempt to solve one problem, we often create, either advertently or inadvertently, other multi-faceted problems. It has now dawned on us that for any petitioner challenging a governorship or presidential election return, the period of 180 days limitation is manifestly inadequate”.
On the Separation of the Office of the Attorney General from the Commissioner for Justice, Akpedeye who is a Chartered Arbitrator and Mediator said the thought of splitting the office has been an ongoing debate. According to him, the main reason for the recommendation to split the office of the AGF is to enhance the administration of justice and to ensure the independence of the office of the Attorney-General from political influence.
“Over the years the corruption level of public officers has risen tremendously resulting in flagrant abuses of office, which I believe has led to the agitation of lawyers, activists and human rights groups for the separation of the office of the Attorney- General as the AGF is considered a part of the Executive and therefore cannot be said to exercise his powers independently and freely, most especially in the prosecution of corrupt public officers.
“Bearing this fact in mind, one begs to ask the question, will the clamour for its separation curb the perceived meddling being sought to be curtailed? I do not think so.
“Advocates for the separation of the office often point to the potential for abuse of power by the AGF, citing cases where certain corrupt public officers should have been prosecuted for their offences but have gone scot-free. There are also those who are of the opinion that separation is not the answer, believing as they do that the ‘status quo’ will remain because of the manner in which governments operate so that even though the AGF is tenured, he/ she would still face political pressures in the performance of his/her duties. I am therefore of the view that a career Attorney General may statutorily not offer the Eldorado being sought”, he declared.
He pointed out that the Speakers of the Houses of Assembly of the 36 states of the federation in December 2014 returned their adopted version of the constitutional amendments to the National Assembly with a major highlight of the document being the granting of approval by the state legislatures for the separation of the Office of the Attorney-General from that of the Minister/Commissioner for Justice. “I hope that this does not create its own set of problems for the country”, he stressed.
On activities of EFCC in last four years, the revered lawyer said, the EFCC has over time garnered a reputation for itself as a financial enforcer that has engaged in the investigation of financial improprieties in the country. “I think the present leadership of EFCC appears to believe in not advertising themselves. They have not fared too badly. Their apparent low rating to my mind stems largely from the fact that they have not sensitized the public enough on their gains especially so when it is not on big political cases.
“You will agree with me that the negative image that was the lot of Nigeria a couple of years back has tremendously reduced. The impunity with which public office holders helped themselves to public funds has equally reduced and that could not have happened without EFCC’s contribution. Having said that I still believe that war on crime is a continuing process and they have a lot of room for improvement”, he stated.
On parading of suspect by Nigerian Police, he said: “Nigeria is a country of absurdities. A country where anything can happen and things do in fact happen on a daily basis. Parading of suspects by the Police before the public prior to their being charged to court, tried, found guilty and convicted is an aberration. It is unconstitutional and makes nonsense of the doctrine of the presumption of innocence until found guilty enshrined in our constitution. It amounts to gross violation of the suspect’s fundamental human right to fair hearing. By virtue of Section 36(5)&(6) CFRN 1999, an accused person is presumed innocent until the contrary is proved.
“Nowhere in our statutes can a provision be found empowering the police or any other law enforcement agency to first humiliate a suspect, thoroughly shamed and disgraced before passing him over to a law court for his trial.
“The only instance where the police are allowed by law to parade a suspect is where there is need for the identification of the suspect by a witness who claims to have seen the suspect commit the alleged offence. In this case, the suspect is lined up amidst other people while the witness attempts to point him out from the crowd. This is called identification parade and it does not take place before the press.
“Parading suspected criminals in the media is already convicting the person in the court of public opinion. There is no way you can ensure that a person has a free and fair trial if you have already given the public a bad impression about the person. There is no doubt that the single most important reason while the police engage in this practice is for publicity to call attention to itself and make the public believe that it is actually fighting crime. But it is a poor approach in wining back the confidence of the public that has long lost faith in the ability of the Nigerian police to protect it in the face of the current, unprecedented upsurge in scale of violent crimes across the land.
“And for this publicity, the police are willing to do anything to get it, including parading animals and toddlers as robbery or criminal suspects. In 2009, the entire nation was bewildered and for some of us who can still be shocked by the events in this country embarrassed when the Nigeria police, Kwara State Command, paraded a goat as an arm robbery suspect. The goat suspect was detained over an alleged attempt to steal a Mazda car.”
On criminal justice system, he said the importance of the criminal justice system to the smooth running of any society cannot be over emphasized. Accordint o him, a sound criminal justice system in any nation is a precursor to economic growth, political stability and social equilibrium. He pointed out that indeed an effective criminal justice system is fundamental to the maintenance of law and order, regreting that in Nigeria, widespread corruption and disregard for due process and the rule of law continued to blot Nigeria’s criminal justice system. His words: “Many people are arbitrarily arrested and detained for months without charge. Police continued to ask people to pay money for their release from detention. Many detainees were kept on remand in prison for lengthy periods and in harsh conditions. Court processes remained slow and largely distrusted. A criminal justice system that is inefficient, inadequate, corrupt, infrastructurally deficient, under-financed, undermanned and prone to abuse such as the present Nigerian Criminal Justice System is a threat to the Rule of law and all other indices of democracy and good governance.
“A lot of work needs to be done particularly in the areas of delay in the trial of cases, coordination amongst agencies of the criminal justice reform; sentencing guidelines; prison decongestion and alternatives to imprisonment. What is certain however is that the general consequence of these problems has been a non-performing criminal justice system leading to a denial of justice either to the defendant or the victim.”
In his views, the question of whether Section 308 of the 1999 Constitution which provides immunity for certain public office holders encourage corruption borders on agreement or denial. Our laws, he said envisaged a situation whereby the chief executive of either a state or the nation would be inundated with unnecessary litigation. He said: “I can understand why the draftsman inserted the immunity clause in our grundnorm, but as with the case with human systems, that reason will naturally be subject to abuse sometimes.
“It is for the same reason you cannot sue a judge for acts emanating from his judicial functions. You will agree with me that if the immunity clause is totally expunged, it may lead to the derailment of the ship of state. This would in effect distract their performance of their statutory role of governance. Thus this, provision was meant to be a shield and not necessarily a sword.”
Akpedeye, SAN, OFR had his legal education at University of Lagos, Lagos, Nigeria; Nigeria Law School, Lagos, Nigeria and Harvard Law School, Cambridge, MA, USA.
He was called to the Nigeria Bar in March 1984 and elevated to the rank of Senior Advocate of Nigeria (SAN) in September, 2004. His educational qualifications include Bachelor of Laws (LL.B), Second Class Honours, Upper Division, University of Lagos (1983); Barrister-at-law (BL), Nigeria Law School, Lagos (1984); and Master of Laws (LL.M), Harvard Law School, Cambridge, MA, USA (1985).
In 1999, he was appointed Notary Public of Nigeria in. He has been a Fellow of the Chartered Institute of Arbitrators (UK) since 1999; Chartered Arbitrator of the Chartered Institute of Arbitrators (UK) since 2004 and Fellow, Institute of Construction Industry Arbitrators. He became a Chartered Mediator in 2009 and honoured with National Honours of Officer of the Order of the Federal Republic (OFR) in 2014.
He is a member of several professional bodies and organizations including the International Bar Association (IBA), Nigeria Bar Association (NBA) NBA National Executive Committee (NEC), Academic Staff Union of Universities (ASUU), National Association of Law Teachers and the Council of Legal Education. He is also a member of the Body of Benchers (Nigeria) and is a Lecturer at the Faculty of Law, Delta State University, Oleh Campus, Delta State, Nigeria.
Akpedeye SAN, OFR served as the Honourable Attorney-General and Commissioner for Justice, Delta State between August 2007 to August 2009. He is the Founder and Principal Partner of Compos Mentis Chambers. The Firms practice spans Oil and Gas, Banking, Communication, Immigration, Mediation and Arbitration. He represented The Nigerian Bar Association as co-chair of Project Swift Count during the 2011 General Elections and is three times chairman of the NBA Election Working Group.
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