Category: Uncategorized

MY TAKE ON THE ALLEGED PROSCRIPTION OF IPOD

Much has been said about the alleged proscription of Indigenous People of Biafra (IPOB). No less a personality than the President of the Nigerian Senate, Dr. Bukola Saraki, has also weighed in on this issue. The issue has therefore become very controversial with divided opinions.

The governing law on proscription of organisation engaged in terrorism is Terrorism (Prevention) Act 2011 (as amended). Section 1(1) of the Act prohibits terrorism while 1 (2) defines activities that are classified as acts of terrorism. Section 2 provides for the process for proscribing organisations involved in acts of terrorism.

Two pronouncements from government authorities on Friday 15th September have led to the swell of opinions on the status of IPOB and legality or otherwise of those pronouncements.

Firstly, the Nigerian army in a statement by Maj.-Gen. John Enenche, the Director, Defence Information (DDI), said that the IPOB posed security challenge and had been metamorphosing from one stage to another and concluded by confirming that IPOB was a terrorist organisation. Quoting from the statement, it reads “After due professional analysis and recent developments, it has become expedient to notify the general public that the claim by IPOB actors that the organisation is non-violent is not true. Hence, the need to bring to public awareness the true and current state of IPOB. In this regard, some of their actions, clandestinely and actively, that have been terrorising the general public include: The formation of a Biafra Secret Service, claimed formation of Biafra National Guard, unauthorised blocking of public access roads and extortion of money from innocent civilians at illegal road blocks. Militant possession and use of weapons (stones, molotov cocktails, machetes and broken bottles, among others) on a military patrol on Sept. 10, 2017. Physical confrontation of troops by Nnamdi Kanu and other IPOB actors at a check point on Sept. 11, 2017 and also attempt to snatch their rifles. Attack by IPOB members on a military check point on Sept. 12, 2017, at Isialangwa, where one IPOB actor attempted to snatch a female soldier’s rifle. From the foregoing, the Armed Forces of Nigeria wish to confirm to the general public that IPOB from all intent, plan and purpose as analysed, is a militant terrorist organisation’’. Note, nowhere was the phrase “declare” or “proscribe” used.

Shortly after this, the governors of the South- east zone of the country rose from a meeting and announced that they have proscribed the “activities of IPOB”. In their communiqué, they announced that: “In view of the prevailing security situation in the South-East and its attendant consequences, the South-East Governors hereby resolved as follows:

“All the activities of IPOB are hereby proscribed. IPOB and all other aggrieved groups are advised to articulate their position on National issues and submit to the committee of Governors, Ohanaeze Ndigbo and National Assembly members from the South-East zone through the Chairman of South-East Governors Forum”. (emphasis mine).

It should be noted that neither the statement from the army nor the communiqué of the governors proscribed IPOB. While the governors merely proscribed the activities of IPOB, it did not proscribe IPOB. In similar vein, the army statement did not use the word “proscribe” or “declare”. It merely warned the public that, going by the activities that IPOB started carrying out; it was a militant terrorist organization. That being the case, the controversy generated by the alleged proscription is needless.

On legal steps for proscribing organisations involved in acts of terrorism, Section 2 of the Terrorism (prevention) Act, clearly provides:

(1). Where two or more persons associate for the purpose of or where an organization engages in –

(a) Participating or collaborating in an act of terrorism;

(b) Promoting, encouraging or exhorting others to commit an act of terrorism; or

(c) Setting up or pursuing acts of terrorism, the judge in Chambers may on an application made by the Attorney General, National Security Adviser or Inspector General of Police on the approval of the President; declare any entity to be a proscribed organization and the notice should be published in official gazette.

(2) An order made under sub-section (1) of this section shall be published in the official gazette, in two National newspapers and at such other places as the judge in Chambers may determine.

It is conceded that the pronouncement from the army and the governors did not follow this process. However, since the statements did not claim to be proscribing the organization called IPOB, the issue of their compliance with Section 2 is irrelevant. That discussion is merely an academic exercise. What they did at best was to proscribe activities of IPOB, not IPOB itself. In fact, the army has come up with a new announcement that they did not declare IPOB as a terrorist organization.

In my view, what happened was a coordinated effort by the authorities (the army and the governors) to stem the tide of violence and lawlessness going on in the region. It was to preempt a break down in law and order, that was dangerously degenerating into inter-tribal attacks and killings, similar to what happened in Rwanda some years ago. I think the authority could ill-afford the possible delay and lack of surprise element that following the constitutional process of proscription will engender. The scenario the army and governors tried to prevent can be likened to the following anecdote from my good friend, Obinna Anaba:

I employ my gateman, Umaru. I pay Umaru to guard my house. I even arm Umaru with whistle, bow, arrows and small jazz to make him effective – sight, catch and eliminate any thief man! Then this Saturday, agile Umaru sights a man scaling my fence and dutifully goes after the intruder blowing his whistle and setting his bow and arrow for the kill! Yours truly suddenly jumps out of bed. No No No Umaru. You can’t do that. You don’t have the powers to declare the intruder a thief. No! I have to convene a meeting of my household in the morning and we will determine whether or not he is a thief. Then we can allow you go after him.

Subtext: Umaru has resigned. His reason. My Oga, that’s me, is a very stupid man.

From the analysis above, what the army and the governors did, in my view, did not amount to acting illegally or unconstitutionally, as they did not proscribe IPOB. Rather, they did what any responsible government will do to safeguard lives and properties, giving the fast degenerating situation. They were able to douse the tension and fear created and stopped the wanton destruction of lives and properties that was already taking place in the south east and possible reprisal attacks in the northern part of the country. To back up the action taken, it is being speculated in the news media, at the time of writing this article, that the Nigerian President, General Muhammadu Buhari, has now given approval to the Attorney-General to take action to formally proscribe IPOB, in line with the provision of the Terrorism (Prevention Act).

NIGERIA’S CORPORATE EXISTENCE UNDER CHALLENGE

Nigeria’s corporate existence as a nation is under serious challenge, especially with two major events from two major ethnic groups. We have agitation for secession from the east, sometimes accompanied with hate messages for those from the other parts of the country and threats of violence/war. From the north, there has come a quit notice to the easterners to leave. One may wonder whether if those leading this face-off are actually speaking the minds of those they claim to represent.
The twin events of angry outbursts mentioned above have precipitated urgent efforts to enhance unity and peaceful coexistence, which is especially being led by the acting President, Yemi Osinbajo.
The question being asked is what has led us to where we have now found ourselves. The common answer of many is: injustice and absence of equitable treatment. This relate mainly to share of common resources and availability of opportunities.
Like it should be expected, the situation has sparked off discussions around the country. In all these, three major threads have emerged on how to ensure peaceful coexistence.
– One is a call for referendum to be included in our laws to enable people to exercise their right of self-determination.
– Another is a call for restructuring of our federal system of government, including fiscal federalism – essentially to devolve more powers and resources to the units and make the central government to handle only few issues that are central in nature such as external affairs, currency, armed forces.
– Yet another view is that secession or restructuring without more will not solve our problem. The main solution is good governance by those in authority. To some, with good leadership and accountability, the demand for secession and restructuring will die down. Good governance can only be achieved if every citizen get involved, especially in calling to account those we have chosen to lead us.
Whichever way forward we choose, it is important that we have peace in navigating this challenge.
Sesan Akinsanya
www.bonitassolicitors.com
https://www.linkedin.com/in/sesanakinsanya

OVERCOMING LEGAL CHALLENGES DURING RECESSION

It is official. Nigeria is now in recession. Recession is a technical term used in describing a period of temporary economic decline during which trade, economic and industrial activities are reduced, generally identified by a fall in GDP in two successive quarters. According to the Nigeria Bureau of Statistics (NBS) gross domestic product (GDP) report for the second quarter of 2016, Nigeria’s economy contracted by 2.06 percent to record its lowest growth rate in three decades. In the first quarter of 2016, the NBS said the economy shrank by 0.36 percent to hit its lowest point in 25 years, hence the official confirmation of recession.

It has always been obvious that Nigeria has been in recession before official confirmation. Even when Nigeria rebased the economy and celebrated being the leading African economy, overtaking South Africa in the process, the impact could not be seen on the average man on the street. Our years of economic mismanagement and directionless governance have finally caught up with us.

The present recession situation is a culmination of persistent and consistent misrule by our former leaders. The unbridled looting of treasury, inconsistent policies, unfocused governance all combined together to get us to where we are today. All these have been exacerbated by the falling oil prices and oil production disruption by the Niger Delta militants, which a mono product economy like Nigeria can ill-afford.

Faced with this dire situation, businesses and individuals have to devise new strategies for survival. For businesses, there are key legal issues that are related to a period of recession that they will have to deal with. In recession, broad areas of focus are cost reduction and possible increase in revenue. In doing this, business relationships and stakeholder interests are invariably impacted. Many of these impact and relationships disruption have legal implications for the business. We will examine some of these and how they can be managed.

One main issue during recession period is non-willingness of parties to abide to the terms of a contract they freely entered into when the going was good. Breaches of contract terms go northward. It is important that actions businesses take in response to such breaches do not lead to further throwing away scarce resources in chasing hopeless situation. Such breaches can involve any contractual relationship, including contracts with suppliers, customers and other service providers. To get optimal solution in such situations, businesses will need to work closely with their professional advisers, particularly lawyers and accountants. A stitch in time saves nine. Early involvement of your lawyer would help in managing scarce business resources in the most prudent way.

One key option during recession is re-negotiating contracts terms, in the face of new reality confronting contract parties. Contract entered into in the period of boom may not be suitable in a period of recession. Parties therefore need to engage each other to renegotiate contract terms in a way that is mutually beneficial. During such renegotiation, you need the support of your lawyer to ensure that you do not sell yourself short.

Recession often comes with the forced need to embark on cost cutting. Typically, some areas targeted for cost reduction impact on staff take-home and welfare. Discussion around this often lead to conflicts and disputes because of interests differences. This need not be, if well managed. Involving your legal team can help smoothen the process. Proper legal advise can help in preventing dispute or where dispute arises, can go a long way in resolving it amicably.

During recession, purchasing power generally goes down due to accompanying inflation. Generally, people are desperate to make ends meet. Crime and other social vices go on the increase. Communities in business operational areas become more restive. In such situations, lawyers who are savvy in dispute resolution can help with appropriate legal support and advice to enable businesses navigate through the rough times without suffering further depletion of resources.

Other areas that a good legal support can provide succour include management of receivables, regulators relationship management, corporate governance practice and ethics.

The main key to effective management of legal issues arising during recession is early involvement of your lawyer. Prevention is better than cure. That saying is more relevant during the challenging times of recession. Therefore, early involvement of your lawyer is essential. Resources are scarce and therefore need to be optimally managed. A good legal support and advice will surely help in doing this. When you involve your lawyer early, you spend less and can prevent huge and higher cost that may arise when the damage has been done, when you may now have to endure expensive dispute, which may include litigation.

HOW DO YOU SEE YOUR LAWYER – ANGEL OR DEVIL?

 

Do you see your lawyer as a dear friend that you can approach to seek comfort when you are facing difficult challenges? Or you see your lawyer as a necessary evil that you will avoid like a plague, if you are not compelled by circumstances? Has he become, as in the eyes of many, a mere necessary evil rather than a force for positive change.

Is your lawyer the trusted ally that you confidently involve and rely on to see you through important decisions? Or do you see him as someone not to be involved in your decision-making because involving him makes decision-making more complicated and cumbersome?

Do you see your lawyer as that knowledgeable and learned professional to be relied on for wise counsel? Or do you regard his claim to being the ‘learned’ one as undeserved and your reference to him as the learned one is with tongue in cheek?

Below are some jokes about lawyers. Though they are supposed to be jokes, listening to them, one cannot escape the feeling that the society has a negative and wrong perception of who a lawyer ought to be.

Joke 1

During the mid-1980s dairy farmers decided there was too much cheap milk at the supermarket. So the government bought and slaughtered 1.6 million cows. How come the government never does anything like this with lawyers? – P.J. O’Rourke

Joke 2

Lorenzo Dow, a 19th century evangelist, was on a preaching tour when he came to a small town one cold winter night. At the local general store he saw the town’s lawyers gathered around the potbellied stove.

Dow told the men about a recent vision in which he had been given a tour of hell, much like the traveler in Dante’s Inferno. One of the lawyers asked what he had seen.

“Very much what I see here,” Dow said. “All of the lawyers gathered in the hottest place.”

Joke 3

Curious, a pedestrian approached the man. “The first hearse carries my ex-wife’s lawyer,” the man explained. “My dog bit him and he died two days later. The second hearse has a lawyer who opposed me in some business litigation. He met the same fate.”

The pedestrian thought for a moment, and then asked, “Could I borrow your dog?”

“Okay be me, but you’re going to have to wait your turn like these other people.”

Worryingly, all the jokes above concluded with evil wishes for lawyers. It is also not unusual to hear the phrase “lawyers are liars” being dropped casually in friendly conversations between lawyers and non-lawyers. All over the world, there is this general seeming hostility towards lawyers. The question arises, therefore, why this seeming general dislike for lawyers? Do conducts of lawyers contribute to this hostility? What role do lawyers play in contributing to societal enhancement? Are lawyers role positive or negative? Do we really need lawyers?

Not less a personality than the President of Nigeria, Mohammadu Buhari, has expressed frustration about lawyers and the judiciary, especially regarding the anti-corruption crusade of the federal government in Nigeria. Not long ago, while declaring open the 2015 All Nigeria Judges’ Conference in Abuja, Buhari accused corrupt lawyers and judges of sabotaging his efforts to recover stolen assets. In his address to the judges, Buhari lamented: “As my lords are undoubtedly aware, corruption transfers from public coffers to private pockets, resources required to deliver social and economic justice.

“Government’s attempts to recover such assets in accordance with the law are often faced with dilatory tactics by lawyers sometimes with the apparent collusion of judges.

“These tactics are often not directed at reaching any conclusion or affirming innocence or guilt, but at stalling trials indefinitely, thus denying the state and the accused person the opportunity of a judicial verdict. I wish to echo the sentiments of the vast majority of Nigerians in saying that we cannot afford to continue on this path.

“Unfortunately, our justice system currently has a reputation for delays, usually occasioned by a combination of endless adjournments, incessant interlocutory applications and overwhelming caseloads. This situation is a huge disincentive for businesses.

“It is not surprising, therefore, that Nigeria ranks near bottom on the ease of doing business index”.

Similar sentiments have been expressed by the generality of Nigerians, especially, on cases involving elections and corruption allegations. Lawyers and judges have been accused of being deeply involved in bribery and corruption.

Common complaints about lawyers include use of dilatory tactics and technicalities in stifling smooth trial of cases, use of injunctions to delay trials, use of frivolous arguments to frustrate trials; preparation of false documentation, charging excessive fees, conversion of clients’ money, among others. These complaints, as serious as they are, should not be the basis of passing blanket judgment on all lawyers. If anything, these are conducts that the legal profession stands against and for which lawyers engaged in them are regarded as renegades. The acts of the few bad eggs, is therefore not enough and should not be generalized to tar all lawyers as enemies of the society.

In any society, lawyer’s roles are important and positive. The lawyer is the guardian and promoter of the rule of law, justice, fairness and equality of all before the law. This role is especially important in the developing countries where the law has the potential to become the great levelers between the powerful and the less so. Lawyer’s obligation is not limited to his client, but goes further to include the court, the public in order to secure proper administration of justice in the society.

There are many other roles, which the lawyers play in the society. In a dispute situation or trial, a lawyer is like a spokesperson hired to speak for a client to settle a conflict. A lawyer can often communicate more effectively than the client because the
lawyer is not emotionally involved in the dispute and has been trained to look for ways to settle a dispute by using the legal knowledge he or she has gained.

Beyond representing clients in disputes, a lawyer sometimes perform the role of advisor or counselor to help clients with personal or business problems such as divorce, relationships between parents and children, drafting wills, drafting contracts and other matters. In this role, the lawyer must seek to meet the desires of the client while providing practical advice to accomplish their goal.

Often, the lawyer serves as a negotiator working with the client as well as the opposing side to find the best way to settle a conflict. This is a difficult role, as the lawyer must be able to find compromises and to know the right moment to present these to reach the best settlement for the client. Negotiation is a skill that requires experience and patience on the part of the lawyer.

There is a common and popular misconception of lawyers as mainly those only to be consulted when you are involved in litigation. Many people wrongly see lawyers as those only to be involved when you are initiating a case in court or you are being sued. Litigation is only a part, albeit the most popular, of the legal profession. Lawyers are advisors and counsel in all spheres of life. Law practice, both litigation and advisory, covers so many areas, hence we have so many practice specialties. Examples include Business Law, Commercial Law, Shipping and Maritime Law, Aviation Law, Oil and Gas Law, Family Law, International Law, Arbitration and Alternative Dispute Resolution, to mention just a few. Any wonder then why lawyers are referred to as the learned gentlemen.

The profession of law is still the noble profession. Just like there are deviants in any group or society, there are lawyers whose conducts may be contrary to the ethics of their profession, which should not be seen as what the profession stands for. As observed earlier, many of the allegations of misconduct against lawyers happen in litigation practice but there are the bigger majority of lawyers, many of whose areas of practice are different from litigation and who are not focus of these allegations. Many are in-house counsel while many others are involved in commercial and corporate practice. Domestically and globally, many lawyers are known to have made indelible contribution to societal growth. Global names such as Abraham Lincoln, Nelson Mandela and Indira Ghandi are good examples of lawyers known for great contribution to humanity, while in Nigeria we have great names such as Obafemi Awolowo and Rotimi Williams for their positive role.

While the legal profession is always striving to cleanse itself of the few bad eggs, the vast majority of lawyers uphold the value and ethics of the profession. The noble profession of the ‘learned friends and gentlemen’ still remains the honourable profession and the defender of the weak in the society.

 

By SESAN AKINSANYA, LL. B., FCIS, FCA, FCIArb, MCIPS, MIoD

SesanAkinsanya@BonitasSolicitors.com, 08037402564.