The DSS Arrest and Proposed Prosecution of the Judicial Officers For Criminal Offences: Is NJC The Appropriate Road to Golgotha?


THE DSS ARREST AND PROPOSED PROSECUTION OF THE JUDICIAL OFFICERS FOR CRIMINAL OFFENCES: IS NJC THE APPROPRIATE ROAD TO GOLGOTHA?

Bolaji Ramos, Esq.

It is no longer news that the 7th October 2016 arrest of two of the Justices of the Supreme Court of Nigeria and five State and Federal High Court Judges by the Department of State Services (DSS) has thrown a lot of dust in the air and generated heated debates between legal practitioners, human rights activists, NGOs, socio-political commentators and other stakeholders.

From the overall reactions of the commentators, a lot of moral, political and legal issues have evolved. There has been the issue as to whether the DSS, in the first place, has powers under its enabling law to carry out such arrests. Closely related to this is the issue of whether serving judicial officers can be arrested and prosecuted by a crime control agency without the recommendation of or going through the National Judicial Council (NJC) to whom, as argued by the NBA and SERAP respectively, power to discipline judicial officers is exclusively vested under the 1999 Constitution (as amended). Other issues include the legality of the Gestapo manner and the time in which the arrests were made; existence or otherwise of arrest warrants, among others.

In the instant write-up, I wish to particularly address two core legal issues which are (a.) whether the DSS, in the first place, has powers under its enabling law to carry out such arrest; and (b.) whether under the 1999 Constitution, judicial officers cannot be tried by a court of first instance unless and until petitions have been written against such judicial officers and same have been forwarded to the NJC, and the NJC has appropriately exercise disciplinary jurisdiction over the issue with its verdict given concerning the judicial officers.

Like many commentators, the NBA President (Mr. Abubakar Mahmoud (SAN) ) in his official briefing of journalists on Saturday 8th October, 2016 at the Eko Hotel, Victoria Island, Lagos and during the Supreme Court valedictory service for Justice Suleiman Galadima, JSC on 10th October, 2016 stated categorically that it was not the responsibility of the DSS  to arrest judges and that the law provides procedure for handling judicial officers. By a letter dated 9th October, 2016 addressed to the President Muhammad Buhari, SERAP also held the view that the DSS acted outside the scope of its powers which was said to threaten the independence of the judiciary.

I must quickly point out that by reference to the law enabling DSS, these commentators will appear to mean the law enabling the State Security Service (SSS), and not the DSS so to say. While the DSS is being run by the SSS, the DSS is presently not a creation of any known statute in Nigeria. It is merely a department under the Presidency. On the contrary, the SSS is the recognized statutory body established under section 2(3) of the National Security Agencies Act LFN 2004 (NSAA), and empowered under the Act to exercise certain powers.  Moving forward, therefore, reference to SSS in this write-up should be deemed as reference to DSS.

 

Power of DSS To Arrest The Judicial Officers on Corruption Allegation

The prevailing view on the arrest of the judicial officers on the allegation of corruption (among others) is that the SSS does not, by virtue of its enabling law, have the power to arrest any person for corruption, not to talk of the judicial officers. The commentators who held this view argued that the SSS’s power of arrest is limited to crime against the internal security of Nigeria which must be non-military classified. This is the view also vigorously expressed and reiterated by Mr. Abubakar Mahmud (SAN) on behalf of the NBA. The disciples of this view have based their reasoning on the provision of section 2(3) of the NSAA which empowers the SSS to detect and prevent any crime against the internal security of Nigeria, which is non-military classified . Yes, this is settled.

However, one disservice that the disciples of this view are doing to themselves and the unsuspecting Nigerians who have not taken time to thoroughly look at the NSAA is that they have either failed or refused to do a holistic, wholesale reading of all the sections of the NSAA with a view to discovering the extent of powers the SSS may exercise under the NSAA. Singular reliance on section 2(3) will only amount to an erroneous or misconceived result. The relevant provision of the NSAA through which the SSS acted and effected the arrest does not appear to me to be section 2(3).

There is an unnoticed section 6 of the NSAA that these commentators are overlooking. Section 6 is very instructive in determining the scope of powers of the SSS. Under this section, the President of Federal Republic of Nigeria is empowered to, by instrument under his hand, do the following: (a.) make provisions on how (inter alia) the SSS may be structured; (b.) the manner in which the powers of the SSS may be exercised and conferment of powers of superior police officers on specified officers of the SSS; and (c.) anything concerning or incidental to any matters mentioned in NSAA. The provisions of section 6 give the President a wide range of powers that transcends the provisions of section 2(3) of the NSAA. The following can be deduced from section 6:

  1. The President has power to structure how the SSS will be run. This unarguably brings about the use of the founding of the DSS;

 

  1. The President has power to determine how the SSS will exercise its powers;

 

  1. The President has powers to confer on SSS or DSS officers all powers that superior police officers can exercise.

 

  1. The President has powers to do anything incidental to (inter alia) points (1) to (3) mentioned above.

 

Particular attention should be given to points (3) and (4) mentioned above. One curious question that comes to mind is: what are the powers of superior police officers? The answer to this poser is not far-fetched. Section 2 of the Police Act LFN 2004 defines superior police officers as officers that are above the rank of a cadet assistant superintendent of police (ASP). These include the Inspector General of Police (IGP), the Deputy IGPs, the Assistant IGPs Superior police officers, Commissioners of Police and others above the rank of cadet ASP. Superior police officers (just like other police officers) have the mandate to prevent and detect any crime under section 4 of the Act, and this surely includes allegation of corrupt practices such as bribery and corruption. In the same vein, any person reasonably suspected to have committed a crime or about to commit a crime can be arrested (even without a warrant) by a superior police officer under sections 24 and 29 of the Act. With all these in view and by the strength of section 6 of NSAA, SSS officers (in addition to its powers under section 2(3) of the NSAA) who have been empowered by the President can indeed look into allegation or cases of corruption or any other crimes the same way superior police officers can.

 

It is also instructive to know that a thorough look at the relevant provisions of the Economic and Financial Crimes Commission Act LFN 2004  and Corrupt Practices and Related Offences Act LFN 2004 shows that there is no preclusion of other law enforcement agencies or bodies such as the Police and SSS from detection and prevention of economic and financial crimes or crimes emanating from corrupt practices such as the ones the judicial officers are alleged to have committed. To cap it all, it is a misconception to hold that the powers of SSS are limited to prevention of crimes against internal security of Nigeria or that the SSS cannot arrest the judicial officers for crimes emanating from corrupt practices, provided it has been empowered by the President through an instrument under his hand.

 

The Appropriate Adjudicatory Forum For Judicial Officers Accused of Committing Crimes  

 

The NBA, through its President, joined the other commentators that hold the view that by virtue of Paragraph 21 of the Third Schedule to the 1999 Constitution (as amended) the appropriate forum to deal with any misconduct of judicial officers is the NJC. The proponents argued that it is after the NJC has one way or the other determined the petitions that must been written against these judicial officers that they can be prosecuted before the regular court.  With utmost respect, there is no legal basis for this argument in our present law as it. It is misconceived.

 

About five sections of the Constitutions are pertinent to the resolution of this issue— sections154, 158 and 292 as they relate to the NJC and sections 6 and 272 as they relate to the regular court.

 

As they relate to the NJC

 

Section 154 established the NJC and refers to the Third Schedule to the Constitution for its power and composition. Paragraph 21 of the Third Schedule provides that the NJC shall have power to exercise disciplinary control over judicial officers and recommend them to the President for removal. On its own part, section 158 confers independence on the NJC in respect of appointment and exercise of disciplinary control over judicial officers. Section 292(1)(b) gives instances that can lead to recommendation of judicial officers by the NJC to the President for removal and restricts such instances to: (a.) inability to discharge the functions of the office due to infirmity of mind or body and  (b.) misconduct or contravention of the code of conduct.

 

As they relate to the regular court—   

 

Section 6(6)(a) vests all judicial powers in courts which extend to application of inherent powers and sanctions of law on any person or authority while section 272 gives a State High Court jurisdiction to hear all criminal cases involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.

 

Analysis of Appropriate Adjudicatory Forum

 

One huge distinction that commentators who have argued that the NJC is the appropriate or first adjudicatory forum that the judicial officers should be subjected to fail to understand is the difference between professional misconduct or breach of ethical code of conduct by a judicial officer on the one hand  and commission of crime(s) by a judicial officer on the other hand. A thorough community reading of Paragraph 21 of Third Schedule, section 158 and section 292(1)(b) of the Constitution clearly shows two things:

 

  1. The possible adjudicatory power of the NJC is limited to exercise of disciplinary control on judicial officers for breach of ethical or professional code of conduct; and

 

  1. There is no preclusion of law enforcement agencies from arresting and prosecuting of judicial officers before the High Court of a State or the Federal High Court as the case maybe where there have been allegations of crimes against such judicial officers.

 

While there are instances where a breach of a judicial code of conduct may be criminal in nature, there is still no supporting legal or constitutional basis for the argument that the NJC is the only and appropriate forum to deal with such instances. What is clear and undisputable is that section 272 gives the High Court the jurisdiction over all criminal matters involving any person, and by construction, “any person” include judicial officers. Section 308 of the Constitution is clear on the only persons in Nigeria that have immunity against prosecution—the President, the Vice President, the Governor and the Vice Governor. Judicial officers are not included, and they need not be removed from their offices before they can be prosecuted for criminal offences.

 

Conclusion

 

The SSS has power under its enabling law and other relevant laws to arrest the judicial officers for corrupt practices, provided the President has empowered it in that regard. Also, judicial officers can be appropriately (and without any recommendation of the NJC) prosecuted before a regular court— the High Court or the Federal High Court, as the case may be.

 

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SAILING THE HEAVEN


SAILING THE HEAVEN’S GATE

Let me make my heaven in your amorous laps
My eternal abode in your feminine wraps
The peeping clit amidst the heaven’s gate,
Let me make it the determiner of my eternal fate.

Let me pestle the rhythm down the bushy barricade
My Moses’ staff that can strike a rock to water facade
Let it till a tilting tiny touch in thy flowery shower
Till I enter the depth of your divided Red Sea’s tower.

Let me row my boat down the heaven’s passage
My middle finger down your closed cottage
The blackish scrubs that grow about your paradise
Let me graze through them since now I have the franchise.

Let me traverse the geography of your heaven
That my single voyage may reap up to seven
The convergence of my urgence and your contingence
Let it forever blossom as I sail heaven’s existence.

The heaven’s gate is my way to duplicity
The heaven’s gate is my way to multiplicity
The heaven’s gate is my way to eternity
The heaven’s gate is my way to immortality

– Bolaji St.Ramos
(copyright 9/7/16)

LITTLE BY LITTLE


A POEM WRITTEN BY ME FOR ME ON MY BIRTHDAY, DEDICATED TO MYSELF AND ALL THAT HAVE WISHED ME HAPPY BIRTHDAY SO FAR

LITTLE BY LITTLE
(A poem from me to me on my birthday)

Little by little
This quaint whistle
That I blow in my castle
Now mews like a tiring throttle.

I am getting old, do you not see?

Little by little
Time is taking its turn
On the candles that I burn.
Whispers of long-lingering dreams
Threaten my solitude with biting screams.

I had a million dreams last night!
Hopes of yester-years still hanging in limbo,
Yearned and yelled at me with hands akimbo
Over….
A hanging pumpkin that is yet to drop
A dangling pendulum that is yet to stop
A blinking breakthrough that is yet to crop
A rejuvenating ray that is yet to top.

Aspirations still wombed in my mental ignition
Tortured my dreams with beams of commotion

Yet, I am a Ramos
Not a doubting Thomas,
Coffined by sight, foresight and insight.
I am a Ramos
Ever-rejuvenating like the undying phoenix
Even in the pang of certain uncertainties .

If there is still salt in the sea
And there is sugar in the cane
And there is blood in the body,
And there is oil in the spoil of war and our toil,
Sure shall I harvest the many fruits of patience.

-Bolaji St.Ramos

Copyright
29/01/2016

The Plea of the Lost Poet


This is a poem written in February 2016 within 25 minutes. One thing very noticeable about the poem is the use of a stand-alone chorus immediately after the first and second quatrain stanzas. The poem captures the invocations of a poet to a heavenly spiritual being for deliverance. Each verse of the two quatrains in the poem starts  with chronological alphabets, for example the first stanza has A,B,C,D while the second stanza has H,I,JK. Enjoy the poem.

 

THE PLEA OF THE LOST POET

 

Arch angels in the abode up high

Borrow me thy wings to swing to the sky

Convey me from here to where the stars lie

Deliver my plea to He that hears my cry

 

Shield me away from my journey astray!

 

Heavenly doves as white as snow

Impregnable winds that at evenings blow

Jamboree Jabiru that sings as the Crow

Kindly catapults my plea with your bow and arrow.

 

Shield me away from my journey astray.

 

  • Bolaji St.Ramos

ARTICLE 2


                 THE RHETORIC OF SHARIANIZATION

                                                                                 

                                             BOLAJI RAMOS

                                               Faculty of Law,

                                            University of Lagos

                                                      LLB V

 

Introduction:

 

Following the introduction of the legal regime of Sharia Criminal Law in Nigeria in the year 2000, a bundle of criticisms were showered on it as to its likely nature of conflicting with the Fundamental Human Rights recognized under the 1999 Constitution of Federal Republic of Nigeria. The aim of this paper is to lay bare some provisions of the Sharia Penal Code which have always been the subject of bone of contention between Sharia protagonists and Sharia antagonists. The sections will be placed side by side with some of the provisions of the rights in Chapter IV of the Constitution, and some international instruments which Nigeria has ratified through conventions. This paper will, briefly but concisely, look at the origin of the Sharia Criminal Law, its constitutionality, its unconstitutionality and its bindingness.

 

 

 The Origin:

The Sharia Civil Law could unarguably be said to be as old as the time Islam was introduced in the North. It reached its zenith after the Fulani conquest of the North and the Islamization of the region by Uthman Dan Fodio[1] and his followers in the early 19th century. The Sharia Criminal Law, on the other side of the coin, is a recent initiative[2], firstly passed by the Legislative House of the then Northern Region in 1959[3] and blessed by the then Premier of Northern region.

 

Some decades later, especially towards the end of the 90’s arguments were championed by some northern States with respect to the adoption of the Sharia Criminal Law, having rigorously contended that the existing Panel Code did not meet the strict test of Islamic Law[4]. And that a mere amendment of it could not heal the wounds caused to it by the Common Law[5]. Consequently, Zamfara State took a giant step in 2000, and blazed the trail when it passed the Sharia Panel Code and the Sharia Criminal Procedure Code Law. Since the year 2000, twelve northern Nigeria states have introduced Sharia[6].

 

 

Constitutionality:

Pertinent to take cognizance of is the fact that different text-writers, legal icons, political activists, human rights activists and human rights NGO’s have passionately submitted their views in respect of the constitutionality of the Sharia Law.[7] Yet, there is something that has to be borne in mind and be placed emphasis on when testing this constitutionality. The definition of the term constitutionality is that thing, the reason being that it may have more than a meaning because of its ‘slippery’ nature.

 

If this term is viewed to mean recognition by the constitution or emanation from the constitution, the meaning the term will take will be different from the meaning it will assume, if it is seen to mean non-violation of any of the provisions of the constitution in all respect. The effect of the interpretation given to the former is that an act will be said to be unconstitutional once ‘it is not made mention of by the Constitution’. Here, the Constitution must fail to mention it or provide for it to the extent that nothing in the Constitution is even incidental or traceable to it. The effect of the latter must be that an act will be said to be unconstitutional once ‘it violates any of the provision of the Constitution.’

 

 

Standing by the former, the Constitution recognizes the Sharia Courts in Section 6(5) (f)&(g)[8] – although, only Sharia Courts of Appeal are expressly provided for here. Section. 6 (5) (k) further provides that a State may establish a court to exercise jurisdiction at first instance. Consequent to this provision, Sharia Courts of first instance were established to listen to and adjudicate on both civil and criminal matters. It can therefore be said that Section 6 of the 1999 Constitution crowns the Sharia Law with constitutionality.

 

As to the second definition which could be given to the term `constitutionality’ as defined above, it is worthy to know that nothing in the Sharia Panel Code should violate the provisions of the parent statute, i.e. the constitution, for it to gain constitutionality. This second meaning tends to be more all-encompassing. The implication of this is that for Sharia Law, especially the criminal aspect of it, to be constitutional, none of its provisions should violate any of the provisions of the grundnorm[9]. This is, of course, a statement of impossibility as shall be seen below.

 

 

Unconstitutionality:

Without much ado, the term ‘unconstitutionality’ simply means ‘non-accordance with the provisions of the constitution or inconsistency with the provisions of the constitution’. The effect of this inconsistency or unconstitutionality is that the subject matter cannot hold water when juxtaposed with the supremacy provision in the constitution embedded in section 1 (3).

 

It is an inevitable truth that the constitution, as demonstrated above, is the enabling law for the Sharia Criminal Law, yet some aspects of it convincingly seem a violation of some of the constitutional provisions under Chapter IV of the Constitution. To start with the punishments, offences such as adultery, rape, incest and sodomy[10] attract a death penalty, in which the ‘criminal’ is to be stoned to death. The greatest concern that comes with this form of death penalty is the process of execution which has been said to be derogatory of human dignity[11]. The punishment is a tortuous, gradual process which undoubtedly ‘sins’ against the right to dignity of the human person recognized in section 34 of the constitution.

 

Also, non-recognition of this form of death penalty in the Penal Code, from where the Sharia Criminal law directly originates and the Constitution which is its enabling law[12], brings a doubt to the mind as to the constitutionality of this form of death sentence. The form of death sentence is alien to the fons et origo and the grundnorm. One cannot afford to be unmindful of the decision in the case of Peter Nemi v. State[13]where the Supreme Court held, inter alia, that the Nigerian Legal system only recognized two forms of death sentence, namely death sentence by hanging and death sentence by facing firing squad. One will, therefore, not err in law to make bold and say that any other form of death penalty apart from these two is illegal, null and void. And as such, stoning a person to death as a form of death penalty is unconstitutional, illegal and null and void.

 

Furthermore, the amputation and removal of the eye of offenders who have been found guilty of stealing and blinding another person respectively are other punishments under the Sharia Penal Code that abuse and taint the sacred nature of the right under section 34 of the Constitution. Like stoning to death, the Sharia Criminal Procedure Code Law provides for the execution of sentence of the offence of stealing by way of amputating the offender, and that of blinding a person by removing the offender’s eye. These sentences have been manifested by some Sharia States in the Northern part of Nigeria. For example, an Islamic court in Katsina State in May 2007 ordered the removal of the left eye of one Ahmed Tijani, who was found guilty of partially blinding a friend during an argument. Two months later in Birnin-Kebbi, a Sharia court ordered 15 year-old Abubakar Aliyu’s hand amputated for stealing the equivalent of $300.[14]

 

These are nothing but clear cases of gross human rights violation which unforgivably offend fundamental right to human dignity of those offenders. It only stands to reason to say that these punishments, apart from violating human rights grossly, remind us of the Mosaic period when the concept of justice was an eye for an eye. This, however, cannot stand side by side with modern standards of civilized countries[15]. While many criminologists agree that the purposes of punishing offenders should majorly be for rehabilitation and deterrence, amputation and blinding of the offender fall short of these.

 

 

Worthy to mention is the provision of Section 92 of the Sharia Penal Code of Zamfara State which is in violation of Section 36 (12) of the Constitution. The section of the constitution provides that a person cannot be punished for any criminal offence that is not specifically mentioned in a written law in Nigeria. Conversely, the section of the Sharia Penal Code provides that a person can be punished for an offence that is not specifically mentioned in a written law, once the Quran or the Hadith recognizes it. This is nothing but a display of high level of unconstitutionality. One can only imagine that a person will be made to face a criminal charge emanating from an offence merely written or provided for in the Holy Quran. Neither the Quran nor the Hadith is a written law in Nigeria.

 

The Sharia Criminal Law also infringes some human rights provisions in some of the international instruments that have been already ratified by Nigeria. For example, it runs foul of Articles 5 of the African charter on Human and peoples’ Rights which provide that ‘every individual shall have the right to the respect of the dignity inherent in a human being’. Also, there is a similar provision in Universal Declaration of Human Rights. By Virtue of Section 12 of the Constitution, these treaties form part and parcel of the Nigerian Law once ratifie.

 

 

Bindingness:

The utmost fear that preoccupied the minds of non-Muslims during the late 1990’s in respect of the passionate readiness to codify the Sharia Criminal Law, especially in Zamfara State, was the likelihood of making it binding on everybody in the State, irrespective of their religion or beliefs. Consequently, there was a sea of diverse arguments by Sharia protagonists and its antagonists[16]. A scholar, trying to express his fear, concluded that the enactment of the Sharia Criminal Law would be ‘an indelible taint of unconstitutionality.’[17]

 

 

Ordinarily, the law is legally supposed to be binding on all people who are within the territory of its operation like laws of other States of the Federation, but the religious nature of the law, which whole-heartedly centers on Islam, limits its bindingness to certain categories of people. Any attempt to extend this by way of making it binding on everybody within the region of its operation would have, ab initio, violated Sections 10 and 38 of the Constitution.

 

 

Good enough, the Sharia Penal Code of Zamfara State, as well as those of other States, has by virtue of Section 3 provided for two categories of people who are liable to  the punishments under it. This has, to a considerable extent, settled most of the controversies and criticisms levied against it at the initial stage of it establishment.

 

The two categories of people who are subjected to punishments under the law are:

(i)                            every person who professes the Islamic faith; and

(ii)             every other person who voluntarily consents to the exercise of the jurisdiction of any of the Sharia Courts.

 

The second category, as seen above, is very straight-forward, and does not raise controversial questions because it remains a matter of choice. For example, a Christian of any ethnic origin may submit him/herself voluntarily to the jurisdiction of the Sharia Court. But the direct implication of the literal interpretation of the first category may breed arguments.

 

This is because it covers not only the indigenes of the Sharia State who are Muslims, but also non-indigene residents who are Muslims, and visitors to the Sharia state who are also Muslims.[18] While category one lays a solid foundation of the fact that it applies only to Muslim faithfuls, category two applies to non-Muslims, provided that they have submitted themselves to the jurisdiction of the Sharia courts.

 

From the provision of the afore-mentioned section, it can be inferred that the Sharia Penal code is not applicable to the following categories of people:

(i)                Indigenes who are not Muslims – e.g. Christians, traditional believers and free thinkers;

(ii)             Non-indigenes who are not Muslims; and

(iii)           Visitors in the Sharia State who are not Muslims.

 

 

Conclusion:

Historically, the two Sharia Codes[19] have been passed to modify the Penal Code which was applicable to everybody then – Muslims, non-Muslims, residents or visitors, in the Northern part of Nigeria. Since the Sharianization of Zamfara and other Sharia States, the Penal Code becomes the applicable law to the above three groups who are not bound by the Sharia Criminal Law, and therefore not under the jurisdiction of the Sharia Criminal Court. Those who profess Islam and those who submit themselves to Sharia are, however, governed by the Sharia Penal Code Laws of all the Northern States that are practicing Sharia.

 

Since it was said that the aim of this Sharianization is to spread justice, modesty and peaceful co-existence[20], one wonders if the purpose can ever live up to expectation in the light of its gross violation of fundamental human rights in the Constitution. In the words of Chief Rotimi Williams:

 

‘It is necessary to observe that outside Saudi Arabia and Afghanistan, there is hardly any modern Islamic State where the Sharia is enforced without some modification in the administration of the law.’[21]

 

Hardly will anyone hesitate to subscribe to this observation. This is because it captures not only the reality of Nigerian which is not a theocratic State like Saudi Arabia, Afghanistan and Algeria, but also an element of a working suggestion. Since Nigeria, unlike these three States, is an heterogeneous State, it stands to reason that Sharia Criminal Law should be taken through  substantial modifications as it also applies to visitors (whether Nigerians or not) who are within the region at a particular point in time.

 

The Sharia States in Nigeria cannot claim, as at today, to be applying all the rules of Sharia as stated originally in the Holy Quran and the Hadith of Prophet Muhammad (S.A.W). For example, apostasy which originally attracts death penalty was excluded in the code. It is hereby suggested that there should be further re-examination of some of the offences and penalties provided for in the Sharia Penal Code Laws of the Sharia States. Should this not be done and the present position is allowed to persevere, then I do not think the court will hesitate to declare the offending provisions inconsistent with the Constitution, therefore null and void to the extent of their inconsistency.     

 

     

                 

                                                                              

                                               

 


[1] Uthman Dan Fodio was the religious and spiritual leader of the Fulani jihadists. His success after the religious war was the real genesis of the Sharia Civil Law which was responsible for guiding commercial transactions and marital arrangements.

[2] It does not mean that there was no law governing criminal acts. Criminal justice was dispensed according to Quranic injunctions immediately after the Fulani Jihad.

[3] This was known as the Penal Code, CAP 105, LFN 1990

[4] See the introductory note to the Sharia Penal Code by Ahmed Bello Mahmud for further details.

[5] The provisions of the Penal Code were grossly influenced by the Colonial Government. Some injunctions in the Quran, for example, death penalty for apostasy and adultery, were removed to mitigate the ‘harshness’ of the law.

[6] Reported by Human Right Watch. Go to http://www.hrw.org.

[7] The book titled “The Sharia Issue” comprises articles solely on the Sharia law

[8] Dr. Abdul Lateef Adegbite in his article “Sharia in the context of Nigeria” published in “The Sharia Issues” has argued that this section makes Sharia Law constitutional in Nigeria.

[9] This is used to refer to the Constitution even though Kelsen envisages something supernatural which is higher than the Constitution.

[10] See generally Sections 126/127 (Adultery), Sections 128/129 (rape), Sections 132/133 (incest) and sections 130/131 (sodomy) – of the Sharia Panel Code, Zamfara.

[11] The phrase ‘derogatory of human dignity’ was used by Prof. Nwabueze to describe the Sharia punishments in his article The Constitutional Problem of Shariah published in The Shariah Issue by Committee of Concern Citizens.

[12] The Criminal Procedure (Northern States) Act does not also make any provision for this form of death sentence.

[13] FHC/L/CP/63/97

[14] Visit www.freedomhouse.org/religion for more details

[15] The phrase ‘civilized countries’ is not used to mean the USA or Britain. It is used generally to mean countries whose punishment of offenders is not just for retribution or whose punishments are not below universally accepted standards.

[16] The Sharia Issue, ibid

[17] Prof. Nwabueze in his article ‘Constitutional Problems of Sharia’ published in The Sharia Issue.

[18] The case of visitors could be very funny and unjust if a situation below arises. If A and B who are good friends traveled from Lagos to Zamfara, and having arrived there, they both slept in a hotel with two prostitutes. If A was a Muslim, he would be stoned to death if he was a married man. B on the other hand would not be guilty of any offence under this law if he was a Christian and was married at the time of the act.

[19] That is, the Sharia Penal Code and the Sharia Criminal Procedure Code Law.

[20] Ahmed Bello Mahmud, the then Attorney-General and Commissioner for Justice, Zamfara State, contended in the introductory note to the Sharia Penal Code that one of the reasons for Sharianization is to fill the gaps which common Law had failed to do.

[21] In his article The Sharia Controversy published in The Sharia Issue, p.31.

ARTICLE


THE DEVELOPMENT AREAS

IN LAGOS STATE

 AND

 THE ELECTORAL LAWS.

Bolaji Ramos,

University of Lagos,

Faculty of Lagos

 

Following  the  supreme  court decision  in  Attorney  General  Of  Lagos  State  v.Att.Gen. of  the  Federation(2004)   which,inter alia, is to the effect  that the 57 local  government councils created by Lagos State House of Assembly was inchoate and not  operational until  returns be made to the National Assembly, the Lagos State Government decided to retain the former local  government councils and convert  37 of the newly created councils to local council development area (LCDAS).This  was done by amending the LASIEC Law, and now under section 13 of the LASIEC Law 2008,signed into law by Governor Fashola in 2nd June, ‘elections shall be held in all the 20 local government councils and 37 local council development areas in the state.’

It is crystal clear that the step taken by the Lagos State Government in legally creating the 37 LCDAS and empowering the chairman of LASIEC to conduct elections into the same is unusual, being the first of its kind in the whole of the Nigerian Federation. One is not unmindful of the fact that under the doctrine of the Local Government System, it is the government of a state that can legislate on local government issues, subject to the provisions of our electoral laws. Though the constitution and the Electoral Act envince an intention that local government matters should be within the legislative province of the state, where the state exceeds the provisions of these two laws or goes against the provisions relating to local government councils, such power exercise will be null and void. It is therefore necessary to consider the legality or otherwise of the creation of the LCDAs on one hand and whether, even if they are created, elections can be lawfully conducted into them, on the other hand.

To consider the first issue which relates to the creation of the LCDAs by the Lagos State House of Assembly, it is logical to trace the origins of both the Local Government Councils and the LCDAs, which are recognized by the Lagos state Independent Electoral Commission Law 2008. An issue of this nature ought to be carefully looked into, and the exercise should be restricted to  LASIEC’s enabling laws. I dare to say that throughout the constitutional and the Electoral Act upon which the LASIEC Law 2008 derives its validity, there is no single portion where states are expressly given powers to enact a law on the LCDAs apart from local Government councils.

A careful look-through of the two mother-laws has betrayed that the term ‘local council development area’ is not traceable to neither of the Constitution nor the Electoral Act. The origin of the LCDAs is therefore the LASIEC law 2008 which can only stand a test of validity if it complies with the Constitution and the Electoral Act. For example, section 7[1], item 4 [a] of part 11 of the third schedule and item 22 of the second schedule to the constitution use the term ‘local government councils’ throughout, not LCDA.In the same vein, section 91 of the Electoral Act does the same.

Despite the absence of the term in these two enabling electoral laws, the Lagos state House of Assembly can still justify its stand if reliance is placed on the provisions  of section 4[7] of the 1999 constitution. This states three different instances in which the State House of Assembly can make law for the peace, order and good government of that state or any of the parts thereof:

 

(a)                Any matter not included in the exclusive legislative list;

 

(b)               Any matter included in the con current legislative list;

 

(c)                Any matter with respect to which it is empowered to make laws in accordance with the provision of the constitution.

 

Paragraph (b) and (c) above are not relevant in the instant argument, since power to legislate on or to create LCDAs are not in the concurrent legislative list and the state House      of Assembly has also not been empowered to make law on LCDAs. Interestingly, however, paragraph(c) is wide enough to accommodate the power exercised by the Lagos State House of Assembly in creating the LCDAs.The reason being that the matter is not included in the Exclusive Legislative List, and the provision says that a law can be made on such matter if it is for the peace, order and good government of the state. The provisions in the LASIEC law 2008 relating to the LCDAs could be said to have been made in other to foster the peace, order and good government in Lagos state.

To answer the second question raised above as to whether elections can be lawfully conducted into the 37 LCDAs in Lagos State as recently created by the LASIEC Law 2008, one cannot attempt to be unmindful of the provisions of the constitution and Electoral Act on election. As a result of this, it will be good to quote the two most important areas in the constitution that provided for local government election in extenso. The first part is section 7(1) and the second is item 4(a) of part 11 of the Third schedule.

Section 7(1) ‘The system of local government by democratically elected local government council is under this constitution guaranteed, and accordingly, the Government of every state shall…, ensure their existence under a Law which provides for the establishment, structure, composition, finance and functions of such councils.’

Item 4(a) provides that “the commission (LASIEC, in this case) shall have power to organise, undertake and supervise all elections to local government council within the State.”

Equally, section 91(1) of the Electoral Act provides “Election to all the Local Government councils in the country shall be held on the same day”.

The conclusion from the generality of the above provisions is that, in respect of election, LASIEC’s enabling laws do not recognized LCDAs but local government councils alone, let alone conducting elections into the areas. These provisions are compelling and binding on LASIEC law. According to item 4(a), LASIEC shall conduct election into the local government councils alone. It is therefore beyond dispute that section 13 of the LASIEC LAW 2008 runs foul of the constitution and the Electoral Act.

It is also contended that section 13 which empowers LASIEC chairman to conduct elections into the development areas is a rude violation of the constitutionally-guaranteed interests of all the political parties in Lagos State, apart from the Action Congress which masterminded it. It would be recalled that in September 2008, less than a month before the local government polls, the Lagos State Peoples’ Democratic Party alleged that its list of names of candidates contesting for the L.G polls was rejected by LASIEC on the grounds that the party submitted names for only the 20 local government councils and not for the 37 LCDAs.

Since the posts in the LCDAs are not recognized by the enabling electoral laws, they can never be elective posts but only appointive ones. And if Lagos State Government truly believe in a democratic government, other political parties who are like stakeholders ought to have been invited for deliberation on making the posts in the LCDAs elective ones, since up to 95% percent of the members of the Lagos State House of Assembly are members of the Action Congress.

Even with something as mature as this in place, any self-decision by Lagos state to empower the chairman of LASIEC to conduct elections into the development areas, will still, perhaps for now, continue to be a violation of our electoral laws.

 

                                                                                                – Bolaji Ramos,

                                                                                                  Faculty of Law,

                                                                                                  University of Lagos.

                                                                                                  16-10-2008.  

ARTICLE


THE DEVELOPMENT AREAS

IN LAGOS STATE

 AND

 THE ELECTORAL LAWS.

Bolaji Ramos,

University of Lagos,

Faculty of Lagos

 

Following  the  supreme  court decision  in  Attorney  General  Of  Lagos  State  v.Att.Gen. of  the  Federation(2004)   which,inter alia, is to the effect  that the 57 local  government councils created by Lagos State House of Assembly was inchoate and not  operational until  returns be made to the National Assembly, the Lagos State Government decided to retain the former local  government councils and convert  37 of the newly created councils to local council development area (LCDAS).This  was done by amending the LASIEC Law, and now under section 13 of the LASIEC Law 2008,signed into law by Governor Fashola in 2nd June, ‘elections shall be held in all the 20 local government councils and 37 local council development areas in the state.’

It is crystal clear that the step taken by the Lagos State Government in legally creating the 37 LCDAS and empowering the chairman of LASIEC to conduct elections into the same is unusual, being the first of its kind in the whole of the Nigerian Federation. One is not unmindful of the fact that under the doctrine of the Local Government System, it is the government of a state that can legislate on local government issues, subject to the provisions of our electoral laws. Though the constitution and the Electoral Act envince an intention that local government matters should be within the legislative province of the state, where the state exceeds the provisions of these two laws or goes against the provisions relating to local government councils, such power exercise will be null and void. It is therefore necessary to consider the legality or otherwise of the creation of the LCDAs on one hand and whether, even if they are created, elections can be lawfully conducted into them, on the other hand.

To consider the first issue which relates to the creation of the LCDAs by the Lagos State House of Assembly, it is logical to trace the origins of both the Local Government Councils and the LCDAs, which are recognized by the Lagos state Independent Electoral Commission Law 2008. An issue of this nature ought to be carefully looked into, and the exercise should be restricted to  LASIEC’s enabling laws. I dare to say that throughout the constitutional and the Electoral Act upon which the LASIEC Law 2008 derives its validity, there is no single portion where states are expressly given powers to enact a law on the LCDAs apart from local Government councils.

A careful look-through of the two mother-laws has betrayed that the term ‘local council development area’ is not traceable to neither of the Constitution nor the Electoral Act. The origin of the LCDAs is therefore the LASIEC law 2008 which can only stand a test of validity if it complies with the Constitution and the Electoral Act. For example, section 7[1], item 4 [a] of part 11 of the third schedule and item 22 of the second schedule to the constitution use the term ‘local government councils’ throughout, not LCDA.In the same vein, section 91 of the Electoral Act does the same.

Despite the absence of the term in these two enabling electoral laws, the Lagos state House of Assembly can still justify its stand if reliance is placed on the provisions  of section 4[7] of the 1999 constitution. This states three different instances in which the State House of Assembly can make law for the peace, order and good government of that state or any of the parts thereof:

 

(a)                Any matter not included in the exclusive legislative list;

 

(b)               Any matter included in the con current legislative list;

 

(c)                Any matter with respect to which it is empowered to make laws in accordance with the provision of the constitution.

 

Paragraph (b) and (c) above are not relevant in the instant argument, since power to legislate on or to create LCDAs are not in the concurrent legislative list and the state House      of Assembly has also not been empowered to make law on LCDAs. Interestingly, however, paragraph(c) is wide enough to accommodate the power exercised by the Lagos State House of Assembly in creating the LCDAs.The reason being that the matter is not included in the Exclusive Legislative List, and the provision says that a law can be made on such matter if it is for the peace, order and good government of the state. The provisions in the LASIEC law 2008 relating to the LCDAs could be said to have been made in other to foster the peace, order and good government in Lagos state.

To answer the second question raised above as to whether elections can be lawfully conducted into the 37 LCDAs in Lagos State as recently created by the LASIEC Law 2008, one cannot attempt to be unmindful of the provisions of the constitution and Electoral Act on election. As a result of this, it will be good to quote the two most important areas in the constitution that provided for local government election in extenso. The first part is section 7(1) and the second is item 4(a) of part 11 of the Third schedule.

Section 7(1) ‘The system of local government by democratically elected local government council is under this constitution guaranteed, and accordingly, the Government of every state shall…, ensure their existence under a Law which provides for the establishment, structure, composition, finance and functions of such councils.’

Item 4(a) provides that “the commission (LASIEC, in this case) shall have power to organise, undertake and supervise all elections to local government council within the State.”

Equally, section 91(1) of the Electoral Act provides “Election to all the Local Government councils in the country shall be held on the same day”.

The conclusion from the generality of the above provisions is that, in respect of election, LASIEC’s enabling laws do not recognized LCDAs but local government councils alone, let alone conducting elections into the areas. These provisions are compelling and binding on LASIEC law. According to item 4(a), LASIEC shall conduct election into the local government councils alone. It is therefore beyond dispute that section 13 of the LASIEC LAW 2008 runs foul of the constitution and the Electoral Act.

It is also contended that section 13 which empowers LASIEC chairman to conduct elections into the development areas is a rude violation of the constitutionally-guaranteed interests of all the political parties in Lagos State, apart from the Action Congress which masterminded it. It would be recalled that in September 2008, less than a month before the local government polls, the Lagos State Peoples’ Democratic Party alleged that its list of names of candidates contesting for the L.G polls was rejected by LASIEC on the grounds that the party submitted names for only the 20 local government councils and not for the 37 LCDAs.

Since the posts in the LCDAs are not recognized by the enabling electoral laws, they can never be elective posts but only appointive ones. And if Lagos State Government truly believe in a democratic government, other political parties who are like stakeholders ought to have been invited for deliberation on making the posts in the LCDAs elective ones, since up to 95% percent of the members of the Lagos State House of Assembly are members of the Action Congress.

Even with something as mature as this in place, any self-decision by Lagos state to empower the chairman of LASIEC to conduct elections into the development areas, will still, perhaps for now, continue to be a violation of our electoral laws.

 

                                                                                                – Bolaji Ramos,

                                                                                                  Faculty of Law,

                                                                                                  University of Lagos.

                                                                                                  16-10-2008.  

ARTICLE


THE DEVELOPMENT AREAS

IN LAGOS STATE

 AND

 THE ELECTORAL LAWS.

Bolaji Ramos,

University of Lagos,

Faculty of Lagos

 

Following  the  supreme  court decision  in  Attorney  General  Of  Lagos  State  v.Att.Gen. of  the  Federation(2004)   which,inter alia, is to the effect  that the 57 local  government councils created by Lagos State House of Assembly was inchoate and not  operational until  returns be made to the National Assembly, the Lagos State Government decided to retain the former local  government councils and convert  37 of the newly created councils to local council development area (LCDAS).This  was done by amending the LASIEC Law, and now under section 13 of the LASIEC Law 2008,signed into law by Governor Fashola in 2nd June, ‘elections shall be held in all the 20 local government councils and 37 local council development areas in the state.’

It is crystal clear that the step taken by the Lagos State Government in legally creating the 37 LCDAS and empowering the chairman of LASIEC to conduct elections into the same is unusual, being the first of its kind in the whole of the Nigerian Federation. One is not unmindful of the fact that under the doctrine of the Local Government System, it is the government of a state that can legislate on local government issues, subject to the provisions of our electoral laws. Though the constitution and the Electoral Act envince an intention that local government matters should be within the legislative province of the state, where the state exceeds the provisions of these two laws or goes against the provisions relating to local government councils, such power exercise will be null and void. It is therefore necessary to consider the legality or otherwise of the creation of the LCDAs on one hand and whether, even if they are created, elections can be lawfully conducted into them, on the other hand.

To consider the first issue which relates to the creation of the LCDAs by the Lagos State House of Assembly, it is logical to trace the origins of both the Local Government Councils and the LCDAs, which are recognized by the Lagos state Independent Electoral Commission Law 2008. An issue of this nature ought to be carefully looked into, and the exercise should be restricted to  LASIEC’s enabling laws. I dare to say that throughout the constitutional and the Electoral Act upon which the LASIEC Law 2008 derives its validity, there is no single portion where states are expressly given powers to enact a law on the LCDAs apart from local Government councils.

A careful look-through of the two mother-laws has betrayed that the term ‘local council development area’ is not traceable to neither of the Constitution nor the Electoral Act. The origin of the LCDAs is therefore the LASIEC law 2008 which can only stand a test of validity if it complies with the Constitution and the Electoral Act. For example, section 7[1], item 4 [a] of part 11 of the third schedule and item 22 of the second schedule to the constitution use the term ‘local government councils’ throughout, not LCDA.In the same vein, section 91 of the Electoral Act does the same.

Despite the absence of the term in these two enabling electoral laws, the Lagos state House of Assembly can still justify its stand if reliance is placed on the provisions  of section 4[7] of the 1999 constitution. This states three different instances in which the State House of Assembly can make law for the peace, order and good government of that state or any of the parts thereof:

 

(a)                Any matter not included in the exclusive legislative list;

 

(b)               Any matter included in the con current legislative list;

 

(c)                Any matter with respect to which it is empowered to make laws in accordance with the provision of the constitution.

 

Paragraph (b) and (c) above are not relevant in the instant argument, since power to legislate on or to create LCDAs are not in the concurrent legislative list and the state House      of Assembly has also not been empowered to make law on LCDAs. Interestingly, however, paragraph(c) is wide enough to accommodate the power exercised by the Lagos State House of Assembly in creating the LCDAs.The reason being that the matter is not included in the Exclusive Legislative List, and the provision says that a law can be made on such matter if it is for the peace, order and good government of the state. The provisions in the LASIEC law 2008 relating to the LCDAs could be said to have been made in other to foster the peace, order and good government in Lagos state.

To answer the second question raised above as to whether elections can be lawfully conducted into the 37 LCDAs in Lagos State as recently created by the LASIEC Law 2008, one cannot attempt to be unmindful of the provisions of the constitution and Electoral Act on election. As a result of this, it will be good to quote the two most important areas in the constitution that provided for local government election in extenso. The first part is section 7(1) and the second is item 4(a) of part 11 of the Third schedule.

Section 7(1) ‘The system of local government by democratically elected local government council is under this constitution guaranteed, and accordingly, the Government of every state shall…, ensure their existence under a Law which provides for the establishment, structure, composition, finance and functions of such councils.’

Item 4(a) provides that “the commission (LASIEC, in this case) shall have power to organise, undertake and supervise all elections to local government council within the State.”

Equally, section 91(1) of the Electoral Act provides “Election to all the Local Government councils in the country shall be held on the same day”.

The conclusion from the generality of the above provisions is that, in respect of election, LASIEC’s enabling laws do not recognized LCDAs but local government councils alone, let alone conducting elections into the areas. These provisions are compelling and binding on LASIEC law. According to item 4(a), LASIEC shall conduct election into the local government councils alone. It is therefore beyond dispute that section 13 of the LASIEC LAW 2008 runs foul of the constitution and the Electoral Act.

It is also contended that section 13 which empowers LASIEC chairman to conduct elections into the development areas is a rude violation of the constitutionally-guaranteed interests of all the political parties in Lagos State, apart from the Action Congress which masterminded it. It would be recalled that in September 2008, less than a month before the local government polls, the Lagos State Peoples’ Democratic Party alleged that its list of names of candidates contesting for the L.G polls was rejected by LASIEC on the grounds that the party submitted names for only the 20 local government councils and not for the 37 LCDAs.

Since the posts in the LCDAs are not recognized by the enabling electoral laws, they can never be elective posts but only appointive ones. And if Lagos State Government truly believe in a democratic government, other political parties who are like stakeholders ought to have been invited for deliberation on making the posts in the LCDAs elective ones, since up to 95% percent of the members of the Lagos State House of Assembly are members of the Action Congress.

Even with something as mature as this in place, any self-decision by Lagos state to empower the chairman of LASIEC to conduct elections into the development areas, will still, perhaps for now, continue to be a violation of our electoral laws.

 

                                                                                                – Bolaji Ramos,

                                                                                                  Faculty of Law,

                                                                                                  University of Lagos.

                                                                                                  16-10-2008.  

OBIAGELI


*OBIAGELI

The mammoth’s ever-white tusk
The ostrich potent racing legs
The sky’s sol; moon and thunder
The lion’s tearing teeth and cutting claws
Obiageli
The porter at the Heavengate
The goddess of colours and creativity
The soaring wings of the Dodo
The artifacts of the Living Dead.
Obiageli
The glowing glory of the gone or going
The goddess of succor at the Labyrinths
The dearing daughter of the dead or dying
The silent secret of the soil’s captive,
Obiageli
Could you colour my consciousness, curious,
With the clamouring colours of the clouds?
Could you clothe me, cuddle me, carry me
Clothecuddlecarry me, carrycuddleclothe me,
To the 1967 field of love of life of laughter
Where some Angel took advantage
Of a mere flying foolish bullet of blood.
Obiageli
Let me! Please do let me!
Let me be arrested by calling curls
Of your eyelashes daughter of the lion.
Let me be cuddled curiously, catered for
By the fragrant warmth of your tales
Let me be swallowed in thy hollow mouth,
With it mouthing to me tale-before-my-light.
Obiageli
Let my love be bathed with the tears
Of the azure sky
Let my love be pacifically purified
By Her watery Excellency, Mother Idoto
Let my love be laid hands on by thee,
Thee my lover, thee daughter of my lover.
Obiageli
I have fallen in love of memory
With the cubs rocking in caves,
For the horrible hunter has shot the lion.
I have emphatically embraced the wings
Of the bright beautiful butterfly
For the wall gecko has swallowed the butterfly.
I have fallen in with you,
For I cannot fall in love with Death
Or fall in love with the dead.

Bolaji St.Ramos
copyright 2012

*Obiageli is the only daughter of one of Nigeria’s foremost first generation modern poets, Christopher Okigbo, who died in 1967 in the Nigerian Civil War.