Home Opinion Imo AJCL Law And Vexatious Clause Of ‘Governor’s Pleasure’

Imo AJCL Law And Vexatious Clause Of ‘Governor’s Pleasure’

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For the past few weeks, the Imo State Administration of Criminal Justice Law, Law No. 2 of 2020 has dominated discourse and generated controversies among concerned individuals, including legal practitioners, human rights activists, civil society groups, within the state and beyond.

Particular attention was on section 484 of the law, which provides that the governor can detain anyone at his pleasure. The section says: “Where any person is ordered to be detained during the governor’s pleasure, he shall notwithstanding anything in this law or in any other written law be liable to be detained in such place and under such conditions as the governor may direct and whilst so detained shall be deemed to be in legal custody”.

Also, section 485 provides: (1) A person detained during the governor’s pleasure may at any time be discharged by the governor on license. (2) A license under subsection (1) of this section may be in such form and may contain such conditions as the Governor may direct. (3) A license under this section may at any time be revoked or varied by the governor and where license has been revoked, the person to whom the license relates shall proceed to such place as the governor may direct and if he fails to do so, may be arrested without a warrant and taken to such place.

Many people have given different interpretations to the above sections and have spoken for or against the chief proponents of the law, in this case, the state House of Assembly and the governor.

Observers say the most ridiculous of the words used in framing the law is expressed in the phrase, “governor’s pleasure”. Some have also questioned the legality of the law because it permits the governor to detain people at his pleasure against the provisions of the 1999 Constitution of Nigeria that guarantees fundamental rights to citizens.

A former commissioner for information and Professor of Law, Nnamdi Obiaraeri, while delivering a lecture as part of the 2020 assizes legal year in Owerri recently, described both sections of the law as draconian, stressing that they vested too much power on the governor to order and detain anyone.

The two sections of the law, to some persons, equally imply that the governor can detain a suspect at will and direct the custody in which such a person is to be kept. The Guardian learned that a member representing Oguta in the state, Frank Ugboma, sponsored the bill that birthed the law. Governor Hope Uzodimma signed the law on March 11, 2020, after it had passed all the due processes.

However, Ugboma who is also the Deputy Minority leader of the Assembly has in a recent press statement denied knowledge of the controversial sections of the law.

 

He insisted that the sections were not part of the bill he presented and sponsored, nor were they deliberated on the floor of the House as expected.

He further stated that both sections must have been smuggled into the law by unknown people. “It is the hand of Esau,” he quipped and described it as “an evil manipulation to throw Imo people into the dungeon.”

The statement reads: “As the chief sponsor of the bill, I have had cause to search through all the documents that cumulated into the bill. I have done this repeatedly and have equally taken further pains in reaching out to my colleagues in the House. I must admit that they have each expressed shock over the sudden obnoxious sections of the Law, more particularly section 484 of the said ACJL of Imo State.

“For the avoidance of doubt, the bill I presented had about a total of 372 sections. How and where it was amended, recreated, and reshaped into 484 Sections and beyond remains a mystery and a legislative wonder of our time, as what I presented and circulated to my colleagues during plenary, both in the first and second readings did not contain such obnoxious and embarrassing section 484. Neither was it deliberated in the House Committee of the whole. It indeed never existed in the House.

“No one has been able to explain to the members of the 9th House how and at what stage the said section 484 was inserted into the bill. It smacks of evil manipulation to throw Imo people into the dungeon.

“As a lawyer, I have had cause to fight against such obnoxious laws and as an activist, there is no way this section would have scaled through the plenary in the 9th House, which I am part of. All of us are already potential victims of these obnoxious sections. Not even those who planted this calculated affront on the Constitution are exempted.”

According to him, the provision is a nullity ab initio in view of the unambiguous provisions of sections 1(1), (3), 4,5,6, and 36 of the 1999 Constitution of Nigeria (as amended). Describing it as appalling, Ugboma explained that when he searched to ascertain those who perpetuated the anomaly, his attention was drawn to a list said to be the names of Imo people that facilitated the domestication of the law in the state.

He expressed sadness over the incident and stated that there is no record that such an obnoxious contribution was presented to the House for consideration. “There is no record anywhere that such contributions were laid and/or circulated to members during plenary.

“I have requested that my colleagues constitute a committee to ascertain how such a horrendous act was practiced on this ordinarily good legislation. Its outcome, I believe would interest all lovers of democracy and enable future legislative vigilance. This was not the bill I presented and sponsored.

“In the manuscripts that I received after each hearing and which I have today compared with that given to my colleagues, there is no hand of Esau. This has informed my view and I have today forwarded a bill for the immediate amendment of those offensive and draconian sections,” he declared.

But in a swift reaction, a political analyst, Chinedu Igbokwe accused Ugboma of being economical with the truth about the bill cum law. He wondered why Ugboma would choose to raise alarm on the content of a law six months after it was passed.

He said: “You sponsored a bill. It was signed into law. You are entitled to a copy of the bill that was assented to, which you received, or refused to ask for one. You did not care to review the bill that was signed and possibly raise the alarm of any criminal manipulations on the bill if there were any. Six months later, the content of your bill was analysed and found obnoxious. You wrote a press release shouting that it was doctored.

“It is negligence on the part of a lawmaker not to have monitored the bill he sponsored until it was signed into law. It is laziness and carelessness from him not to have discovered an alteration on his bill until six months after. Such carelessness and negligence could endanger the lives of Imo people. In a working clime, the process of recalling Ugboma would have been initiated yesterday by the good people of Oguta.”

Igbokwe affirmed that sections 484 and 485 of the Imo State Administration of Criminal Justice Law No. 2 of 2020 is anachronistic, draconian, and savagely incompatible with the provisions of the 1999 constitution.

 

Such sections, he said ought not to find their way into the laws in the first place.

Another member of the House representing Mbaitoli, Mr. Okey Onyekanma in his reaction affirmed that the sections were never inherent in the bill, which he joined his colleagues to deliberate on and passed, stressing that some of the sections were strange to him.

He said: “These stipulations were not in any shape or form part of the draft bill, which was passed by the Imo State House of Assembly, where I am an active and punctual member. The bill did not contain such a phrase as ‘the pleasure’ of the governor.

“The injection of the toxic clauses into the ACJL is the height of absurdity. It intends to create a climate of terror in the state and make Imo a desert of totalitarianism in an oasis of democracy. The obnoxious clauses have rendered the so-called law unacceptable. It cannot stand.”

Also, Onwuasonya Jones, factional state Publicity Secretary of the All Progressives Congress (APC) in the state, believes that the law is allowed to exist would spell doom for the state. He argued that those sections did not mention any of the known law enforcement agencies as the arresting authority, but made a vague provision that someone may be detained at the pleasure of the governor.

According to him, those sections imply that anyone could actually be empowered by the governor to affect that arrest. It could be any thug or aide who the governor feels can carry out that assignment. “The obnoxious provision goes further to say that the detained person may be kept in any place and under any condition which the governor directs. You could be picked up anywhere, anytime, and kept in any place or in any condition.

“The law did not even provide for what infractions the governor may at his pleasure order someone’s detention. It could be for anything as bad as asking that the governor pay civil servants their entitlements. The vacuousness of these sections of the law is further accentuated by the provision that a detainee may be released only by getting a licence from the governor. This licence may be likened to paying ransom for a kidnapped victim. And by that provision, the license will be provisional and could be revoked at any time,” he stated.

Jones explained that by such power, the governor’s hostages would never be free. The license, he continued, would contain some provisions that would eternally deprive such victims of basic rights to freedom. “So, once detained at the governor’s pleasure, you remain a slave to the governor, perpetually. And there is also another provision that authorises the governor to banish such individuals should they default on the terms of their ‘release licences.’

 

“I do not know why and how a governor in this 21st Century could imagine that such an anachronistic law could be implemented in Imo of all places. This is most disrespectful to the sensibilities of average Imolites, renowned for their intellectualism, political awareness, stubbornness, and exposure,” he said.

However, the Deputy Speaker in the State Assembly, Amara Iwuanyanwu has no problem with those provisions. He debunked any foul play in the process of asserting the bill into law, adding that every section of it was formulated in the general interest of the people and state.

He said: “Detaining someone at the governor’s pleasure is not new to the Nigerian law; it has always been part of the criminal procedure law and the penal code. Check section 303 and 319 of the Criminal Procedure Act (CPA).”

He insisted that there is nothing tyrannical or draconic about the controversial sections of the law, adding that the Assembly should instead be commended for thinking about the citizens who would be protected by the law.

According to him, section 484 was a reproduction of the 401 of the criminal procedure law, which has been in existence since 1960. “The said section only gives directions with respect to section 230, 235, 328, and 368 of the criminal procedural act.

 

“These provisions apply when a person is arrested on the ground of insanity, (section 230) or cannot understand the proceedings, though not insane (section 328) or an offender has not attained the age of 17 or 18 (as the case may be) as at the time he or she is found guilty of a capital offence.

“If Ugboma feigns ignorance of these provisions of the law, it is obvious he is playing to the gallery of the other political divide he belongs to. This is because if a bill is sponsored, it is deliberated in the House. There is room for public input, which in this case happened under the leadership of the immediate past Chief Judge of Imo State, with technical support from the Legal Defence and Assistance Project (LEDAP). Those erudite lawyers, professors, and human rights advocates could not have supported this law if indeed it was draconian and oppressive,” he declared.

Iwuanyanwu also exonerated Governor Uzodimma from any wrongdoing regarding the signing of the bill into law, saying, “for emphasis, the law in question was not an executive bill. What more? It has been in existence for six months now and there is absolutely no evidence of executive abuse. Those making a mountain out of a molehill should advise themselves accordingly. Leave governor Hope Uzodimma out of this attempt to score cheap popularity.”

Senior Special Assistant on Print Media to Governor Uzodimma, Mr. Modestus Nwamkpa, in his reaction accused the opposition of heating up the polity and trying to instigate the people against the governor with the law.

He said: “Remember, this bill, from what we were told, was passed six months ago. Expectedly, however, the opposition has been cashing in on this to make their usual mountain out of a molehill, apparently trying to smear the integrity of the governor.

“Is Uzodimma a member of the State Assembly? Is that bill an executive bill or private bill? If it was a private bill, was the governor part of the originators of the bill? Was Uzodimma’s opinion sought before the bill was proposed in the first place? Did he participate in the debate leading to the passage of the bill by the House before the governor eventually assented to it?

“Does it mean that the House can send to the governor for assent, a bill they never collectively cross-checked? Does it mean that the proposers of the bill did not make an effort to see its final draft before it was finally taken to the governor for assent?”

He argued that the governor only assented to the bill, which emanated from the legislature. Nwamkpa reiterated that the paperwork of any bill is usually done by the legislature, including the debate and its passage. “What the governor does is only to put pen on paper and even the House legally has the right to override the governor in case he refuses to sign any bill within a stipulated time.

“So, I don’t know why the blame is on the governor for merely performing his constitutional role. This is even an indictment on the state legislature, particularly the sponsors of the said bill,” he declared, questioning the alertness of the internal review mechanism of the lawmakers.

Also speaking, Willie Amadi, a lawyer and a Federal Commissioner representing Imo in the Public Complaints Commission (PCC), said the controversial sections were in conformity with provisions of the constitution of the land.

He said: “I have taken time to dissect, analyse and discuss sections 484 and 485 of the ACJI. It is contrary to the widely held views that the provisions are inconsistent with the provisions of the 1999 Constitution (as amended). It is rather a provision specifically and deliberately designed to protect offenders below the age of criminal responsibility and persons of unsound mind.

“The ‘any person’ drafting clause is, therefore, an inelegant drafting delivery, which in my humble opinion, created ambiguity in its understanding. ‘Any person’ should have read ‘Persons of unsound mind’ and or ‘Persons under the age of 17.’

“Recall that detaining someone at the governor’s pleasure is not a novel development; it has always been in our criminal procedure law and other states of the federation have a similar law in their criminal administration law.”

He explained that there are categories of persons in respect of whom the courts can make such orders. Persons falling under this category, he added are usually specified, i.e. persons bereft of the requisite sanity to face trials and juveniles that are condemned by the courts, but cannot be sent to prison because of their age.

Citing sections 319 of the Criminal Code, which provides that when a child is below the age of 17, the court cannot sentence him/her to death, but will be detained at the governor’s pleasure and chapter 44 of the Criminal Procedure law, he argued that those sections empowered the court to order detention at governor’s pleasure.

He finally admonished that it is important to read sections 484 and 485 with clear legal understanding, rather than with the belief and or suspicion that the provision is applicable to normal citizens, which may be prone to abuse by the governor. “Commentaries, including the House of Assembly and other stakeholders, should not just shake the table for political mischief, but for the security, welfare and good governance of the state,” he said.

Similarly, Bertram Faotu, an Abia State-based lawyer agrees with him. He believes that there is nothing new about the said Section 484. He noted that it is simply a reproduction of Section 401 of the Criminal Procedure Law, which has been in existence for ages. The only difference, he said, is the substitution of the word “president” with “governor”.

His words: “The said section only gives directions in respect of sections 230, 235, 328 and 368 of the said CPA. These provisions apply when a person is acquitted on the grounds of insanity (Section 230) or cannot understand the proceedings though not insane (Section 328) or an offender has not attained the age of 17 or 18 years (as the case may be) at the time he is found guilty of capital offence.

“Some states or region’s laws provide that in such circumstances, the accused person may be detained at the governor’s pleasure or the president’s pleasure. We were all taught about this in Law School.

 

“I am quite amazed at the outcry by lawyers, some seasoned, who are making a great hue as if the said provision was being heard for the first time in our jurisprudence.

“Assuming but not conceding that it was even new, I would still be surprised at the amount of noise it has generated, knowing that all lawyers are aware that it is only a procedural law. No part of the said law states that the governor shall have the power to detain any person. It starts by saying, “when any person is ordered to be detained…” That clearly and without any ambiguity implies that there must first be an order for a person to be detained before the governor can apply the provisions of the said Section 484 of the Imo State ACJL.”

He insisted that there is nowhere in the law where it is written that the governor can wake up and simply order that somebody is detained at his pleasure. “Let us read properly before we criticize,” he advised.

Also, the state Attorney General and Commissioner for Justice, Cyprian Akaolisa, and House Committee Chairman on Information and Judiciary, Dominic Ezerioha in their separate reactions on the matter, insisted that neither the Assembly members nor the governor committed any wrongdoing by bringing the law to life.

According to them, both parties performed their statutory roles in the best interest of the state and her people and should be encouraged and supported to do more.

Meanwhile, after several legal threats from various concerned groups to compel the state governor to push for amendment, an Abuja based lawyer, Maxwell Opara has approached the High Court, Owerri judicial division seeking for the expulsion of the controversial sections.

In the suit no: How/746/2020 dated September 21, 2020, the plaintiff argued that the sections are repugnant to the right of fair hearing, equity, and good conscience as well as violates section 35 of the 1999 Constitution of Nigeria as amended.

The case has Governor Uzodimma as the first defendant and the Attorney General of the state as the second defendant.

He asked the court to determine among other things, “whether the powers conferred on the 1st defendant under section 484 and 485 of the Imo State Administration of Criminal Justice Law, Law No. 2 of 2020 are not an affront and inconsistent to the clear provisions of Sections 34 (1) and 35 (4) and (5) of the 1999 Constitution and as such void to the extent of its inconsistency?”

He also argued that both sections equally, “usurp and oust the powers of the judiciary as entrenched in sections 6 (6) of the 1999 Constitution.

Opara finally argued that the expulsion of the sections would be in the best interest of justice and would further strengthen the fundamental rights of citizens of Nigeria as guaranteed and protected under the 1999 Constitution.

“That I honestly believe that the grant of this application would be in the greater interest of rule of law and that the defendant would not in any way be prejudiced,” Opara averred.

 

At this point, only time will tell whether the legislature would amend the law or allow the court to make a decision on the matter.

 

By 

Collins Osuji

 

THE GUARDIAN NG

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