The Incredible, the Comic and the Absurd

Last Week….

Nigeria seems to be a never-ending movie set, with numerous ongoing film genres like legal dramas and crime thrillers, though ours are actually true life, not fiction. Last week, as usual, we had our regular share of action, from the settlement of the minimum wage for workers at N70,000 (which the Governor of Edo State, Godwin Obaseki, has already been paying Edo State workers since May 2024); to court judgements like that which reinstated the impeached Deputy Governor of Edo State, Philip Shaibu, and the crime thriller that ensued during Mr Shaibu’s ‘triumphant entry’ into Benin and resulted in the unfortunate death of a Police Officer; to the allegation purportedly made by the Minister of Women Affairs, Uju Kennedy-Ohanenye, that she’s being victimised by some ‘Government cabals’ because of her refusal to sign off on some World Bank loan requests. 

More damning is the allegation purportedly made by the Minister, that only about 55% of the actual loan disbursed will be received by Nigeria, as she accused the World Bank Nigeria Staff of redirecting 40% of such loans under the guise of some spurious ‘Consultancy fees’, while she, the Minister, would also be entitled to 5% of the loan for appending her signature to the loan request. I sincerely hope this scandalous allegation, remains an unsubstantiated allegation, because the Minister was said to have mentioned two loan requests amounting to $600 million, meaning that, from the allegation imputed to her, only $330 million would actually come to Nigeria, as $240 million would go to so-called ‘Consultancy fees’, and $30 million would be earmarked for her for appending her signature to the requests, while Nigeria would still be responsible for the repayment of the whole $600 million! Is this the type of scam that officials who have been entrusted to facilitate the wellbeing and development of Nigeria, have been pulling against Nigeria instead? We hope not. It sounds incredible!

Minimum Wage

The fact that Nigerians are miserable, is indisputable. For most of us, our take-home pay can hardly take us to the bus stop closest our offices, let alone home. And, yet, the Government seems hellbent on taxing everything we have. In fact, someone mentioned to me the other day, that the revenue generated from taxes, allegedly appears to now surpass that which is derived from oil exports. 

However, as the saying goes, “Half a loaf is better than none”, Section 3(1) & (5) of the National Minimum Wage Act 2019 (NMWA) will be replaced with the 2024 version of N70,000, and an expiration date of three years instead of the previous five years, meaning that the minimum wage will be reviewed two years earlier than it was in the past. This is a welcome innovation. And, for those Governors who may have complained that they cannot pay the N70,000, Section 2 of the NMWA which will be regurgitated in the 2024 version of the law, provides that the law is applicable throughout Nigeria, without exception, while Section 3(3) thereof provides that any agreement for the payment of less than the national minimum wage is void, that is, any agreement by the States or companies that are eligible to pay the minimum wage, to pay less than the national minimum wage set by law, is invalid. See the case of Fasel Services Ltd & Anor v NPA & Anor (2009) LPELR-1245(SC). 

Government, both Federal and State, must keep in mind that a community reading of Sections 16, 17, 34 & 42 of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution) translates to the fact that all Nigerian workers should be paid a living wage. Poverty, unemployment and inadequate remuneration, are three primary drivers of crime in any society. The other day, my friend and I were going through some of the Government Agencies/Parastatals. Many of them are so unnecessary or inapplicable to Nigeria, it goes beyond being ludicrous. While some of the agencies appeared to be duplications, each comprising of numerous Board members, offices in choice locations, staff and other overheads, we couldn’t understand what we are doing with bodies like the National Space Research and Development Agency, when Nigerians cannot even fly out of some local airports after 6pm, because there are no facilities for night travel! I was particularly amused by the National Agency for the Great Green Wall (whose mission is easily covered by the activities of the Ministry of Agriculture, Environment and possibly Humanitarian Affairs), while my friend’s favourite is the Nigeria Atomic Energy Commission! Common electricity isn’t being generated in adequate quantities, and frequent nationwide interruptions of electricity supply in Nigeria are as normal as breathing, yet, it is atomic/nuclear energy that we are pretending to be interested in! What a crock! We came upon a National Board for Arabic & Islamic Studies, and at the same time, Nigerian Arabic Language Village. Could the latter not be a part of the former? If most of these unnecessary agencies are scrapped, Government would possibly make great savings from nonsensical expenditure, which can then be put to better use. 

The issue of insecurity and crime, is closely linked to wages. There is a school of thought that a good minimum wage/living wage results in workers’ satisfaction and happiness, higher productivity, economic growth and consequently, reduction in the crime rate.

DCP Abba Kyari: The Court of Appeal Judgement 

There was yet another interesting story that caught my attention last week; that of the decision handed down in Appeal No. CA/ABJ/CR/516/2023 by the Court of Appeal, Abuja Division per Adebukola Banjoko, JCA, refusing to quash the drug trafficking charges filed against DCP Abba Kyari aka ‘Super Cop’ and ‘Cop Puppi’. The appeal was dismissed as lacking in merit, and the learned trial Judge of the Federal High Court was directed to continue and conclude DCP Kyari’s trial. 

Well, truth be told, assuming that the Court of Appeal had erred in its judgement and decided that the charges against DCP Kyari should be quashed, and the Supreme Court upheld such an erroneous judgement, it is unlikely that DCP Kyari would go home a free man anyway, as there’s still the warrant of arrest in the American Case No. 2:21-cr-00203 USA v Abba Kyari hanging over his head, to face money laundering/wire fraud type charges. By virtue of Section 3(6)(a) of the Extradition Act 2004 (EA), DCP Kyari cannot be extradited to USA to face totally unrelated charges, until he is either discharged, acquitted of the drug charges here, or on completion of his sentence here, should he be convicted. 

In the case of DCP Kyari, both the Federal High Court and the Court of Appeal handed down the right decision, that is, not to quash the drug charges against him, particularly in the light of the video evidence etc against him and his associates, though, at the time of his arrest, sceptics found the video evidence a bit too convenient, and alleged that the drug charges may have been contrived to keep him from being extradited to USA. 

However, the interesting part of this case was the ground (at least one of the grounds) for the application that the charges against DCP Kyari be quashed – that the charges were legally defective, because the Police hadn’t completed their investigation and internal disciplinary mechanism over him before the criminal charges were filed in court. DCP Kyari also argued that the Police Service Commission (PSC) has powers over erring Police Officers, similar to those of the National Judicial Council (NJC) over erring Judicial Officers. This isn’t the correct position of the law at all. 

Indeed, the Third Schedule to the Constitution Part 1 M Police Service Commission Paragraph 30(b), gives the PSC powers to dismiss and exercise disciplinary control over all Police Officers except the Inspector General of Police, but Sections 103 & 104 of the Police Act 2020 (PA) do not support the assertion that the PSC has special powers to investigate and conclude disciplinary proceedings first, before an erring Police Officer can be charged before a court of law. Section 103 of the PA provides thus: “Nothing in this Act is to be construed to exempt a Police Officer from being proceeded against by the ordinary course of law, when accused of any offence punishable under any other Act or law”. Part of this ordinary course of law are contained in Sections 35 & 36 of the Constitution – arrest upon reasonable suspicion of committing an offence by a recognised law enforcement agency, being informed of the offence, being brought before a court of law within reasonable time, right to fair hearing and so on. 

Nothing in the PA, provides that a Police Officer must be dealt with by the PSC first. In fact, the provisions of Section 104 of the PA, clearly envisage a situation in which an erring Police Officer can first be punished by a court of law, and provides that such Officer already punished by a court of law, cannot subsequently be punished by the Police again, except for his rank to be reduced or for such individual to be dismissed from the Police. This situation is clearly different, from the position of Judicial Officers. For one, aside from the fact that the PSC isn’t listed in Section 158(1) of the Constitution as one of the bodies that, in exercising disciplinary control over persons isn’t subject to the direction or control of any other authority or person (also see the Third Schedule to the Constitution Part 1 I National Judicial Council Paragraph 21 (b) & (d)), in FRN v Nganjiwa (2022) LPELR-58066(SC) per Chima Centus Nweze, JSC, this was interpreted to mean thus: “Surely, it is the primary prerogative of the NJC to exercise primary disciplinary control over all judicial officers. Thus, the exclusion of the prior involvement of the NJC in any form of the exercise of disciplinary control (including criminal prosecution) over judicial officers, is a negation of the observance of the rule of law….Hence, without the sanction of the NJC, a serving judicial officer cannot be prosecuted for allegations of crimes, which also border on judicial misconduct, unless the said allegations are first subjected to disciplinary sanctions of the NJC, as a condition precedent for the initiation of criminal proceedings”. The attempt to stretch this interpretation for Judicial Officers to also cover Police Officers, goes beyond absurd. 

The Supreme Court didn’t appear to share the position of Abimbola Osarugue Obaseki-Adejumo, JCA in the same FRN v Nganjiwa (2017) LPELR-43391(CA) that: “if a judicial officer commits theft, fraud, murder or manslaughter, arson and the like, which are crimes committed outside the scope of the performance of his official functions, he may be arrested, interrogated and prosecuted accordingly by the State Directly, without recourse to the NJC. These classes of criminal acts are not envisaged and captured, by the provisions of Paragraph 21 Part 1 of the Third Schedule”. It appears that the Apex Court made no distinction as to whether the offence borders on judicial misconduct or a regular criminal offence – the NJC must deal first. 

Conclusion 

While it is impossible for a Lawyer to know every law and every judicial authority, it’s not too much to expect that they would undertake some basic legal research before going to court. One doesn’t have to go beyond the Constitution and the PA, to find that the ground upon which the application to quash the drug charges against DCP Kyari stands is extremely slippery ground, that is bound to make the Applicant fall! Nevertheless, no one will be shocked, if a final appeal is still lodged at the Supreme Court, as unmeritorious as it may be. In Enilobo v NPDC & Anor (2019) LPELR-49512(SC), the Supreme Court held inter alia that it is slow to interfere in concurrent findings of facts made by the lower courts, except where the findings are shown to be perverse. In the DCP Kyari case, at least, the allegation of a defective charge because the PSC hasn’t investigated and disciplined him before the charge was filed, appears to be built on quicksand, and it seems unlikely that the Apex Court will set aside this particular finding.