Selekeowei Larry
The negative effects of the exploration activities of foreign oil companies in the Niger-Delta region has made many ask whether the discovery of crude oil at Oloibiri on January 15, 1956 was a blessing or a curse. Communities in the region have suffered untold hardship, including health hazards and loss of livelihood resulting from devastation of their environment. Mr. Selekeowei Larry SAN an indigene of the region instituted a court action against the government on behalf of 53 communities in Delta State in one claim that resulted in N99.9b award by the Federal High Court. In a discourse with May Agbamuche-Mbu, Jude Igbanoi and Tobi Soniyi, he says, the Federal Government has neither appealed the judgment nor paid the judgment sum. He spoke on a wide range of other national issues.
On the 27th of January 2016, the Supreme Court upheld the election of Mr. Nyesom Wike as the Governor of Rivers State. The main contention before the court was whether the election conducted on April 11th 2015 was valid because of the absence of card readers. What are your comments on the electoral process in Rivers state? What areas would you suggest require reform?
It is always very difficult to fault or applaud elections on the basis of what you see on television or read in newspapers about the way a particular election was conducted. This is because no one person can really be everywhere on an election day. This perhaps is the reason behind the law that if you allege non-compliance, you must prove that the non-compliance substantially affected the result of the election. In the Rivers Gubernatorial Election of 11th April, 2015, many were of the opinion that the election was marred by irregularities, violence etc… People expressed diverse views in the court of public opinion. It is therefore natural that there are many, including eminent lawyers who are not happy with the Supreme Court reversing the concurrent decisions of the Tribunal and the Court of Appeal to affirm Nyesom Wike as the duly elected Governor of Rivers State.
On the position of the Supreme Court on the card reader, let me say
that it is the latest addition to our electoral jurisprudence which one
would have thought that the courts below, particularly, the Court of
Appeal should have availed itself of, in view of the Agbaje/Ambode Case
where the Apex Court had decided on the position of the card reader in
the light, I believe of sections 49 and 138(1) & (2) of the
Electoral Act. Unquestionably, the state of the law today is that, the
card reader not being recognised by sections 49 and 138 of the
Electoral Act cannot be and is not a ground for questioning the validity
of an election. That is the law, and I agree with it.
However, I suggest that the baby should not be thrown with the bath
water. The card reader is a step in the direction of our attaining
better credible elections even though from what we saw of it, the goal
is still in the realm of aspirations. The card readers failed woefully
in most places in the last election.
My suggestion therefore, is that, INEC perfects the card readers so
that we can take the full benefit of them as instruments of a level
playing field for all. And more importantly, cause an amendment to be
effected on the Electoral Act to accommodate the use of the card
reader. Perhaps, this would be the starting point for the introduction
of electronics in our electoral process for better efficiency.
Turning our minds specifically to the complexities of election
petitions. Do you believe the 180-day limitation period for filing is
sufficient time for resolving an election petition?
You see election cases are not like normal everyday cases. They are
special, and are often described as sui generis because they are
peculiar. They are also very sensitive, in that, they convey questions
as to whether or not a person is validly elected or validly occupying an
office to the pleasure or displeasure of the people. Often times there
is tension on every side until such cases are finally determined. In
this wise, even though it was not the character of our jurisprudence in
the past to stipulate time limits for proceedings, experience has shown
that time limitation is expedient if not imperative particularly, as
smart lawyers took advantage of our weak procedures to delay election
cases for unreasonable lengths of time, hence the introduction of
section 285(6) of the Constitution. Now, whether 180 days is enough
depends on the circumstances of each case. However, what I dare to say
is that, the burden on the petitioner is enormous. I wish INEC were the
party to bear the burden of proving that, it conducted a proper
election. The process of gathering evidence to upturn an election
result is herculean and many times, a petitioner may not even obtain the
necessary co-operation from INEC, particularly, in view of the time
constraint. My conclusion on this one is that, cumbersome as it is, if
lawyers do not put their hands in all pies and INEC would co-operate, as
they ought to, 180 days is good timing. I must say this, no matter the
length of time, if the system is left loose, cases can last as long as
some smart lawyers would want them to.
The Judiciary in Rivers state has been faced with a lot of challenges
in recent years, issues ranging from the impasse in the appointment of
the Chief Judge, to the JUSUN strike. In your opinion what practical
steps can be taken to safeguard the independence of the Judiciary in
Rivers state specifically?
What happened to the Rivers State Judiciary in terms of the appointment
of the Chief Judge of the State was clearly avoidable. It was a
question of respecting the various stages and bodies in charge of each
stage. Paragraph 21(c) of the Third Schedule Part I of the Constitution
is clear on this. It is the responsibility of the State Judicial
Service Commission to submit a list of Judges or candidates to the
National Judicial Service Commission whose responsibility is to
recommend to the Governor who should be appointed, and it is the
responsibility of the Governor to appoint. This is why I say the
impasse was avoidable; yet, the courts were locked for all that length
of time, regrettably. Worse still, things degenerated to the level of
non-payment of salaries of judicial workers culminating in the strikes
by the Rivers State JUSUN.
On steps to be taken to safeguard the independence of the Rivers state
Judiciary in particular, apart from the seeming infiltration of politics
in the Rivers situation, the problems of independence of the judiciary
are the same all over Nigeria. It is only spoken of , and not fully
addressed. But to answer your question, the judiciary should be
properly funded, as unfortunately, the funding of the judiciary has
progressively been on a nose dive over the years. In addition, the
welfare of judges in terms of court infrastructure and their comfort
should be given attention; and more importantly, politicians should not
drag the judiciary into politics; they should truly respect the
judiciary as a leveler in the scheme of things.
The case of the Code of Conduct Tribunal v Saraki has led to a legal
controversy regarding the jurisdiction and constitution of the code of
conduct tribunal. In your opinion does the quorum of the code of conduct
tribunal affect the validity of its decision?
The Supreme Court has held that the Chairman of the Code of Conduct
Tribunal sitting with a member constitutes a valid quorum for the
tribunal to adjudicate upon cases over which it has jurisdiction. That
is final. Every contrary opinion goes to naught.
Recently the Niger-Delta region has been witnessing some restiveness
from militant youths. What in your view could have precipitated this
round of violence with oil pipelines being blown up resulting in the
grounding of the only two functional refineries?
Let me first of all say that, as a person from the Niger Delta, I
roundly condemn the recent attacks on oil installation, and I do so
because it is a wrong thing to do particularly, at this time that the
country is going through serious economic crisis. No reason in my view
is also good enough to warrant or justify it.
Having said that, I must say that I have keenly followed the events in
the Niger Delta, and I can smell the tension that is traceable to
different issues ranging from the increasing population of uneducated
and unemployable youths to youths claiming to be excluded from the
Amnesty programme to Tompolo being declared wanted to threats of the
Maritime University, Okerenkoko being cancelled to the Federal
Government failing to settle Gbaramatu’s 99.9 billion naira judgment
debt to people who are regretting that they are being disrespected or
ignored because they had been law abiding seeing that those who were
militants are now the respected in society and in some cases, elevated
to the level of being emperors. Unwittingly, those who disrespect the
law in those areas are now role models. There is therefore, need to
change the narrative by deliberate efforts of opening up those interior
areas of the Niger- Delta with roads, schools, hospitals etc., so that
life would cease to be gloomy for the law abiding. Back to the recent
attacks on oil and gas installations, I have keenly followed the story
to know who claims responsibility and I have not heard any, so it is
difficult really to tie it to a particular issue, nonetheless the is
tension is palpable.
There have been palliative measures introduced over the years, such as
the Amnesty Programme, the Niger Delta Development Commission (NDDC) and
others. Yet the issue of youth restiveness seems to defy any permanent
solution. In addition to these palliative measures what else can the
government do at all levels as a lasting panacea?
I had earlier said that the Niger Delta needs to be opened up. What I
mean is that those very difficult terrains characterised by mangrove
forests, brackish water, muddy water etc which do not seem to be part of
Nigeria, in that, you do not even see the presence of government, no
schools, no hospitals, no roads not even police posts, need to be
incorporated into the Nigerian society. Let me burst your bubble, more
Niger – Delta children are raised in those environments than in Port
Harcourt, Warri and so on.
In effect, whatever the NDDC does, if it does not translate into taking
development to those inaccessible places, it is merely scratching the
surface. Look at the Amnesty Programme, a lot of youths are agitating
that they are excluded and if you take an audit of how much money has
gone into that programme and who has benefitted from it, there will be
problems. I can tell you that a lot of nepotism was also at play. On
the way forward, it cannot be over-emphasised that enlightenment which
would stem from development and lead to better livelihood should be the
emphasis of government at all levels.
There has also been the issue of environmental degradation and health
hazards resulting from gas flaring and oil exploration in the region to
what extent has the law been deployed to address these anomalies by
International Oil Companies in the region?
I know that environmental degradation and the hazards of gas flaring
have more or less become the lot of the people of the Niger- Delta. The
result is that the entire environment is polluted so that fishing,
raffia palm tapping and canoe making being the occupation of the
inhabitants of the interior Niger – Delta have become illusory. The law
has not been strong in terms of sanctions. I know as a fact that,
since 1999 there have been attempts at legislating in this regard by way
of private member bills but none has seen the lime light. We all know
the back and forth even of the PIB which should be an executive bill.
Even the law of tort is incapable of dealing with the technological
advancement in this regard; negligence, nuisance or the rule in Rylands
and Fletcher are hardly of much help to victims. So, there is need to
strengthen the laws in this regard in terms of sanctions. For now, it
looks like the IOCs are just having a good time.
The most significant damage to the environment in the Niger-Delta is
through oil spills resulting from the sabotage of oil pipelines and
facilities. What are your views on the current legal regime for the
liability for oil spills in Nigeria?
I think the law is clear that if the spill is caused by sabotage the
IOC’s are not liable and I think that is Ok, if I understand you.
It was reported that you obtained a judgment against the Federal
Government on behalf of 53 communities in the Niger Delta where the
court awarded the sum of N99 billions as damages in favour of the
communities. Can you give us a brief insight into this case? What
efforts are you making to get the government to pay the judgment debt
especially in the face of rising tension in the Delta region?
Yes indeed, on the 5th of December, 2013, I, leading Chief Fedude
Zimughan on behalf of 53 Communities in the Gbaramatu Kingdom of Warri
South West Local Government Area of Delta State obtained judgment in the
sum of N99.9 billion against the Federal Government of Nigeria at the
Federal High Court, Asaba in the case of CHIEF NELSON OGELEGBANWEI &
52 ORS. v THE PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA & 2ORS.
Each of the 53 plaintiffs sued for himself, and on behalf of his
Community. The defendants were the President of Nigeria, the
Attorney-General of the Federation and General Sarkin Yaki Bello for
himself and on behalf of the Military Joint Task Force in Delta State.
Now you may recall that on or about 13th May, 2009, the Federal
Government through the JTF bombarded these 53 Communities by air, land
and water in the name of searching for militants who were in camps and
locations far away from these Communities where innocent law abiding
citizens live. The result was that they scampered for their lives with
many living in the mangrove forests for weeks, many died, many maimed,
children and women living in sub-human conditions, their houses, boats,
canoes, household wares etc were destroyed, and for those who were able
to escape, they were displaced and were in a concentration camp for at
least three (3) months and their children of school age were out of
school. Aggrieved by this, they did not take laws into their hands.
They rather filed the action culminating in this judgment on 22nd June,
2009. Now, I must tell you the irony of the situation. While the so
called militants were granted amnesty and were enjoying, the people of
these communities who have painstakingly gone through the process of
court to seek remedy, have not been compensated even when they have a
valid judgment which was not appealed against. Let me tell you that, the
judgment and the judgment order was served on the then Attorney –
General of the Federation, Mohammed Bello Adoke, SAN. I formally also
wrote two letters to Attorney- General, one on 9th January, 2014 and a
second one on 3rd June, 2014, and even tried to make contact with him
yet, up till today, I have heard nothing. You can imagine the impunity.
Now because of the sensitive nature of the judgment debtors, I did not
tell them what problems I was having with the office of the Attorney-
General, rather I have just been in the business of managing them to
avoid any crisis. Still to avoid crisis, there came the idea of
registering the judgment in the U.K. for enforcement against assets of
the judgment debtors. That was explored also and was successfully done
on 18th January, 2016 by a judgment of Mr. Justice Holroyde of the High
Court of Justice, Queen’s Bench Division, London. This opens the door
for a number of options at the international stage obviously, and I must
tell you, I am tempted to explore them. Now because of the
implications this would have on the country’s reputation in terms of
respect for human rights and the rule of law and particularly, because
all the wrong things were done by different administrations, I wrote a
letter to the President on 19th January, 2016 to apprise him of the
situation. I have not heard a thing about it. I believe he would do
something but if he does not, I will do everything within the law to
ensure that attention is drawn to the judgment and the plight of the
people. It is a judgment debt, not an appeal fund. The rule of law
must prevail. In the meantime, take it from me that Chief Zimughan and I
would continue to do our best to douse the tension in the Communities.
Currently, the insecurity in Rivers state has reached worrying levels
with cases of assassinations, kidnapping and cult clashes. Considering
this level of insecurity would the adoption of the state police be a
possible solution?
The security situation in Rivers State is really alarming. I had
earlier inferred that there are a lot of idle hands which are ready for
all kinds of inglorious use. These idle and frustrated elements live
amongst the people in their Communities and are therefore known by
them. It follows therefore that, if policing is taken to the community
level, it would yield better results. In that sense, I support
Community Policing.
In the past few weeks there has been a face-off between the Presidency
and the Judiciary over comments by President Buhari that the
anti-corruption crusade of his administration is being undermined by the
Judiciary. What does this portend for our democracy, against the
doctrine of separation of powers?
Well, the President is a human being, and a Nigerian and so under our
laws, he is entitled to his opinion. No explanation has been given as
to what he means by “the judiciary undermining” his anti-corruption
crusade. As to what that portends for our democracy and separation of
powers, I will say, nothing. He has not been heard to have a showdown
with any judge for not taking directives from him. In fact, he has not
even been accused of having tried to influence or intimidate any
judicial officer, so perhaps that isolated statement is not enough to
conclude that the President is out to disrespect the doctrine of
separation of powers as regards the judiciary. On the other hand, we
must not forget how orders restraining investigations were flying at the
inception of this administration.
The Acting Chairman of the Economic and Financial Crimes Commission,
Ibrahim Magu has alleged that some senior lawyers frustrate the War
against Corruption. What are your views on this allegation?
Well he said some senior lawyers. Who are they? What do they do? Or
what are they doing? I am however aware that a certain senior lawyer is
currently standing trial for allegations in that similitude. The end of
the trial would tell. Let us wait and see. But the point must be made
that allowing lawyers to robustly play their defensive role without
hindrance would give the fight against corruption a toga of better
credibility.
Arguably, the use of plea bargaining allows individuals accused of
corruption related offences escape the full consequences of their
actions. In your opinion is plea bargaining a useful tool in the
prosecution of corruption cases?
Plea bargaining is part of our criminal jurisprudence now by virtue of
section 270 of the Administration of Criminal Justice Act, 2015. Its
application does not necessarily mean that a criminal would be grossly
under punished. Rather, it affords the state the advantage of recouping
the whole or where impossible, at least part of the booty or loot of a
corrupt accused person. In effect, such a person does not only get
punished but also returns something to the state. Time and cost are
also saved thereby. To answer your question, yes, plea bargaining is a
useful tool in the prosecution of corruption cases but in my view, the
law on it is unnecessarily complex.
There have been complaints about the quality of lawyers that graduate
from the Nigerian law school. How can senior lawyers assist younger
lawyers in their professional development?
The downward trend in the quality of education in Nigeria is a general
thing and so Nigerian legal education cannot be any different. But
what senior lawyers can do to assist younger lawyers in their
development is to give them the opportunity to understudy them and be
trained. In so doing, senior lawyers have to make the sacrifice of
paying stipends to them for the training. And if I may suggest, the
Nigerian Law School should think about ways to engage seasoned lawyers
in full time practice and where possible retired but not tired judges
and justices to teach, rather than engaging teachers who themselves need
to understudy practitioners just because they are qualified to teach in
the Universities.
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