Can Tambuwal Declare His Own Seat Vacant?

If, by some tragic stroke of misfortune, President Goodluck Jonathan, Vice-President Namadi Sambo and Senate President David Mark all died today, Aminu Tambuwal, Speaker of the Federal House of Representatives, would be sworn in as President of Nigeria. Yet, in response to his defection to the APC, Tambuwal’s security detail has been withdrawn.

 

The Inspector General of the Nigerian Police, in the attempt to justify his withdrawal of the security detail of the Speaker of the Federal House of Representatives, cited the following section of the constitution:

 

 

Section 68(1): A member of the Senate or of the House of Representatives shall vacate his seat in the House of which he is a member if – (g) being a person whose election to the House was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that House was elected; Provided that his membership of the latter political party is not as a result of a division in the political party of which he was previously a member or of a merger of two or more political parties or factions by one of which he was previously sponsored.

 

As far as the IG is concerned, it would seem that Aminu Tambuwal is not merely just no longer the Speaker – he isn’t even a legislator anymore. While former principal officers of the State still have state-provided security attached to them (and therefore cessation of office should not automatically mean withdrawal of security), the focus of this piece is the little constitutional crisis we have on our hands.

 

According to section 68(2), edited slightly for relevance, “the Speaker of the House of Representatives shall give effect to the provisions of subsection (1) of this section, so however that the Speaker or a member shall first present evidence satisfactory to the House that any of the provisions of that subsection has become applicable in respect of that member.”

 

Thus, Tambuwal is required to declare Tambuwal’s seat vacant, in the absence of evidence that there is a division in the PDP.

 

Since the events at the PDP’s convention last year led to several prominent members leaving the party for the APC, it has been the contention of the PDP that the legislative seats of those who crossed over to the APC be declared vacant, going by the provisions of Section 68(1)(g). According to them, as there is no division in the PDP, all legislative defectors must lose their seats. Should they?

 

The courts have not been very helpful with the interpretation of this section. In all the recent defection cases, even where splinter groups have held parallel congresses and elected their own officials, the courts have ruled that no division existed. They have however refused to describe what situation or circumstances they would see as constituting a division. And that remains the central issue.

 

However, even if there was a division in the PDP 12 months ago, there is also the question whether or not such division still exists. The dust has pretty much settled and everyone has gotten on with life in the new party. Or does the fact that the court’s final decision on the legislative defections so far mean that the “division” (if it is eventually ruled to exist) is a continuing one? We wait to see what the court will say.

 

To complicate matters for the PDP, who have asked Tambuwal to resign his office, the constitution is quite clear on how the Speaker may leave the office. Section 50(2) says –

 

The Speaker the House of Representatives shall vacate his office –

  1. if he ceases to be a member of the House of Representatives otherwise than by reason of a dissolution of the Senate or the House of Representatives; or

  2. when the House of which he was a member first sits after any dissolution of that House; or

  3. if he is removed from office by a resolution of the House of Representatives, by the votes of not less than two-thirds majority of the members of that House.

 

In other words, pending the final decision of the courts, Tambuwal has to declare Tambuwal’s seat vacant or the House has to impeach him, otherwise he remains in office. PDP does not have the required numbers to carry out the impeachment. Stalemate, for now.

 

Tambuwal ought to resign. It is the moral, honourable and statesmanlike thing to do. But he is not under any legal compulsion to do so. If he is as shrewd as is reputed however, he must have prepared for the very dirty fight ahead.

BARbaric Grading System

Olanrewaju Adesola Onadeko Esq, DG Nigerian Law School

Olanrewaju Adesola Onadeko Esq, DG Nigerian Law School

First of all, there wasn’t a 71% fail rate at the last Bar Finals. The Council of Legal Education has provided a comprehensive breakdown of the results here. The truth is closer to a 50/50 split. Given that this rumoured fail rate was what led to the outcry and a call from several corners for the grading system at the Nigerian Law School to be reviewed, perhaps that should simply be the end of the matter.

 

However, as a corollary to the argument that high failure rates warrant a review of the system (or perhaps in conflation of the issues), there have also been arguments against the grading system that is supposedly used for the Nigerian Bar exams. I am tempted to call the system an urban legend because you won’t find it written anywhere. However, several tutors at the various law school campuses over the years have explained that a student’s final grade is usually the lowest score in any of the 6 exams written to qualify. In simpler terms, if the student is graded a 1st Class in 5 papers but scores a Pass in the 6th, the School will award him a Pass degree certificate. Allegedly. But we will assume that is the case for the purpose of this discussion.

 

Many have argued that this system is unfair, including my learned friend Orji Uka, here. I disagree, for the reasons that follow.

 

The sum of most of the disagreement seems to be that the system is unfair because it is unfair. How can it be fair to grade a student on the basis of his worst paper? Others have gone on to say that an average grading system is more reflective of the student’s ability, and that no other jurisdiction appears to grade law school students the Nigeria does. Mr. Uka’s article also echoes the sentiment that the exams put way too much pressure on students, with many not replicating the good grades they got at university (I dispute that, by the way).

 

Well, boo frickin’ hoo!

 

My take is that it’s a professional exam, for a profession in which people’s lives and futures are in your hands, where competence is the difference between a conviction for murder and one for unlawful homicide. I’d rather view the grading system as a quality assurance method for employers, separating the cream of the cream from the rest. If the system truly exists, then everyone who’s ever gotten a first class certificate at the Law School deserves immense respect. I also had a boss, Senior Advocate, who used to admonish “you’re only as good as your last mistake”. The real world is unforgiving and mistakes can be costly.

 

Secondly, again assuming the system exists, I don’t understand how a system that has been defined by a body of professionals and applied uniformly to the vast majority of the professional body can be unfair. Who is it unfair to? All law students past and present, those who passed and otherwise? At any rate, everyone learns about the grading system very early into the session, most even before the session resumes. You knew what you were signing up for.

 

Thirdly, the Council of Legal Education publishes a compendium of past questions and model answers. This is the most legal “expo” in the world!!! I bet very few of the foreign jurisdictions we’re comparing ourselves to do this. Furthermore, a large majority of the questions are repeated year on year. If you start with the compendium early enough, attend your classes and take notes, it should take sickness or personal tragedy to throw you completely off your game.

 

Fourthly, I do not think that the system disrupts university results to any degree of significance. I am fairly confident that most that leave the Law School with a first class were awarded either a first or a 2:1 at university. There are also some 2:2 university graduates that earn a 2:1 at Law School. However, very few 2:2s if any go on to earn firsts at Law School. I would say, from the evidence from my set and those immediately preceding and following, that people generally maintain their university standards at the Law School.

 

Fifth, the truth is that many get to the Law School and either lose their way, or think that university methods will work for them one last time. At university, there is the fallback of continuous assessment to rely on – and your exam would only count for 60% of your final grade. So, many could afford to leave studying until the month before exams. Anyone who tries this at the Law School is destined to fail. The work is more voluminous at the latter and the exams are stacked 6 days in a row. You simply cannot afford to leave serious studying till late, trysts at Amudolak Hotel notwithstanding. *Bwari Campus people know what I’m talking about.*

 

Finally, as long as we’re having a conversation, we might also want to talk about the standard of [legal] education in Nigeria. The reason why lawyers used to be called “The Law” with reverence , was because lawyers were renowned for speaking and writing proper English all the time, being widely read and knowledgeable, possessing impeccable manners and noble carriage, they were discreet and generally being better than allayou… (apologies to DavidO).

 

This is clearly no longer the case. When I was at the Law School, the civil procedure lecturer told how they had also included grammar in the marking scheme for the previous year, but had to ditch it because of it’s impact on pass rates. I would later find out that she was not exaggerating. Letters come in from the law offices of the more boisterous senior lawyers, and you simply wonder. I see many of my colleagues on social media trading barbs and descending into roforofo with other people online. These are all not good enough.

 

To conclude, I do not think a year of an unusually high failure rate should warrant revamping the whole system. I think the students should look inwards and urge anyone who is convinced they could not have failed to recall their scripts. If you go back to the statistics released by the Council of Legal Education, I think the fact that the bulk of the failures came from those taking either one paper or the entire exam again, supports my point of view.

 

Plateful of Odd

 

 

In 2012, I started the most oddball thing ever – I started taking pictures of vanity plates and posting them in an album on Facebook. It started pretty randomly but I knew I wasn’t totally nuts when people not only commented on the pictures but sent me a couple of the more interesting ones they had come across as well.

Here’s the collection to date. Picture quality varies depending on the phone, the windscreen and how stable the car was at the time. Hope you enjoy. Seemed apt to share on Lagos State’s #NoHornDay.

14424_10152246260265061_1640988683_n 19183_10152446419940061_1250678331_n 163426_10150349164905061_5372801_n 163945_10150353803255061_3943654_n 165641_10150360252350061_605348_n 166802_10150349157945061_1851029_n 167193_10150353984935061_71760_n 167994_10150384049580061_6570285_n 180825_10150381393375061_144500_n 183596_10150420098265061_857793_n 183779_10150420098795061_1239840_n 184610_10150420098655061_3278258_n 188564_10150420097750061_2878802_n 190003_10150420098430061_2067376_n 190149_10150420097195061_2687654_n 190674_10150420097955061_7126854_n 198080_10150420097640061_1874821_n 206871_10150554548650061_5648786_n 207453_10150554548170061_4780864_n 207509_10150554546905061_4546448_n 207852_10150554546535061_5608502_n Bz_-yORIgAAjmIe.jpg-large208386_10150554547470061_1306549_n 208736_10150554549075061_7941186_n 217190_10150554550305061_504181_n 221685_10150554553040061_1368738_n 224107_10150556782015061_5628632_n 270469_10152246262485061_1426004274_n 297709_10150934691155061_854066307_n 300326_10150813543960061_1118927358_n 302952_10150788398925061_6133482_n 317107_10150806405185061_246745844_n 319694_10150936526495061_914679676_n 379108_10150946739020061_904706327_n 425183_10151357761655061_1721452379_n 480969_10152294105155061_651940504_n 486262_10152253664320061_1193122444_n 559483_10153499011690061_1282304564_n 599197_10152246346050061_1154725183_n 1380648_10153499018130061_1145553040_n 1393698_10153499009870061_713619982_n 1396042_10153499016815061_1034531588_n 1451537_10153593986110061_1423558473_n 1452306_10153499015980061_1931052051_n 1463035_10153499017400061_1671092000_n 1466124_10153499013260061_998495476_n 1796601_10153894149280061_2115375433_n 1797950_10154704655095061_8092707928085191939_n 10253856_10154186143520061_2334113748046928077_n 10310620_10154200487230061_6624420687971387841_n 10672243_10154697234310061_5870700106772308141_n 10702169_10154756605545061_6791914685027988625_n

 

 

GUEST POST: Kayode Adegbola (@KayodeA) – Do Commissioners Really Need to Resign Before Contesting Gubers?

With a view to resolving the issue of whether there is any legal requirement for Commissioners to resign their position before they can contest for the offices of Governor of a Nigerian State, I conducted a review of The Constitution of the Federal Republic of Nigeria, 1999 (Constitution”); The Electoral Act 2010, as amended (“Electoral Act”), as well as additional documents which include but are not limited to the constitutions of the major Nigerian Political Parties – People’s Democratic Party (“PDP”) and All Progressives Congress (“APC”).

 

The Constitution provides the following as requirements for a person to be qualified for election to the office of Governor of a State[1]:

 

  1. Citizenship of Nigeria by birth;
  2. Attainment of the age of thirty-five years;
  3. Membership of a political party and sponsorship by that political party; and
  4. Education up to at least School Certificate level or its equivalent.

 

In addition, the Constitution confers the following freedom on all persons:

 

Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests.[2]

 

This freedom as stated above may be restricted by “any law that is reasonably justifiable in a democratic society a) in the interest of defence, public safety, public order, public morality or public health; or b) for the purpose of protecting the rights and freedoms of other persons[3]”.

 

However, and quite importantly, according to the Constitution, no person shall be qualified for election to the office of Governor of a State if “being a person employed in the public service of the Federation or of any State, he has not resigned, withdrawn or retired from the employment at least thirty days to the date of the election”[4]. In addition, the Interpretation, Citation and Commencement Section of the Constitution defines “public service of a State” as follows[5]:

 

“public service of a State’ means the service of the State in any capacity in respect of the Government of the State (emphasis mine) and includes service as:

(a) Clerk or other staff of the House of Assembly;

(b) member of staff of the High Court, the Sharia court of Appeal, the Customary Court of Appeal; or other courts established for a State by this Constitution or by a Law of a House of Assembly;

(c) member or staff of any commission or authority established for the State by this Constitution or by a Law of a House of Assembly;

(d) staff of any local government council;

(e) staff of any statutory corporation established by a Law of a House of Assembly;

(f) staff of any educational institution established or financed principally by a government of a State; and

(g) staff of any company or enterprise in which the government of a State or its agency holds controlling shares or interest;

It is not clear whether in drafting the Constitution, a Commissioner was envisaged to fall within the purview of being a member of “public service of a State”, however the sentence “the service of the State in any capacity in respect of the Government of the State” could be read to mean so.

 

The Electoral Act makes no stipulations with regard to the subject of this opinion, and neither do the constitutions of the PDP and the APC. The APC Constitution only requires a candidate for Governorship to satisfy the requirements for elections under the Constitution[6], however I am aware that it is conventional for political parties to release guidelines that may require candidates to resign any public office ahead of primary elections.

 

In my considered view, there is no law in Nigeria which expressly states that a Commissioner must resign from his office in order to contest for the office of Governor of a State; however, if at all, in consideration of the provision of Section 318 (1) as mentioned above, such resignation will not be required until thirty (30) days before the Governorship Election.

 

So, for any Commissioner who is currently in service in any State in Nigeria and seeking to run for Governorship of the State (as is quite common), it remains safe to not resign until at least 30 days before the next Governorship Election scheduled for 28th February 2015. However, I am aware that State Governors often either sack or require Commissioners in their Cabinets to resign their positions in order to prevent the distraction of campaigning as against their service to the State.

 

NOTE: This blog post does not constitute legal advice, but rather is an opinion of the writer on the state of the law regarding the topic. For specific advice, please contact your lawyer.

Follow Kayode Adegbola on Twitter: @kayodea

 

ENDNOTES

[1] Section 177

[2] Section 40

[3] Section 45

[4] Section 182(1)(g)

[5] Section 318(1)

[6] Article 20(2)(ii)(b)

Copyright Protection: The Exceptions

One of the benefits of recent events bordering on blogging and plagiarism is that everyone got a crash course on intellectual property and copyright. Most know now that you need the author’s permission to use literary, musical and artistic works, as well as films, sound recordings and broadcasts. This is a good thing. Intellectual property law however is more shades of grey than columns of black and white. The slight concern (for me) is that this is mostly being bandied as an absolute rule and that any unauthorised use whatsoever is immediately plagiarism or copyright infringement. This is not the case – absolute monopolies of use are not created. The reason for this is rooted in the [jurisprudential] basis for copyright protection.

 

Copyright, does not exist solely for the benefit of the content creator and most countries generally declare a justification for their system of copyright protection. For example, in the world’s first ever copyright legislation, the English Statute of Anne, it was stated that the purpose was to “encourage learning”. Similarly, the American Constitution states that the purpose of copyright is “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

 

Copyright protection exists more therefore in the interests of the public good than the interests of the private individual. The competing need to balance economic benefits to rights holders and the public interest of users of the protected works is the reason that there are circumstances in which the works may be used without authorization.

 

One of the easier exceptions to exclusivity is that copyright protection does not last forever. See here for a breakdown of copyright duration.

 

 

Secondly, some laws provided a list of activities that will not be caught by usual copyright restrictions. One if Fair Dealing, which is discussed below, but several others listed in the Nigerian Act include the following:

  • reproducing the work by way of parody, pastiche or caricature (e.g. BuniTV’s Drunk in Love);
  • reproducing and distributing copies of an artistic work permanently situated in a place where it can be viewed by the public;
  • inclusion in a collection of literary or musical work which includes not more than two excerpts from the work, if the collection bears a statement that it is for educational use and includes an acknowledgement of the title and authorship of the work;
  • incidentally including an artistic work in a film or broadcast

 

 

The final exception or limitation for this piece is Fair Use. Under the Nigerian Copyright Act, the concept is referred to as “Fair Dealing” and is described as follows:

 

“The right conferred in Section 6… does not include the right to control (a) the doing of any of the acts mentioned in the said Section 6 by way of fair dealing for purposes of research, private use, criticism or review or the reporting of current events, subject to the condition that if the use is public, it shall be accompanied by an acknowledgement of the title of the work and its authorship except where the work is incidentally included in a broadcast.”

 

In other words, as long as I refer to the title of your work and acknowledge your authorship, I can use snippets of it in a subsequent work doing any of the highlighted activities in the preceding paragraph.

 

In America, there’s a slightly more robust test for determining Fair Use. See the excerpt below from the Copyright Clearance Centre’s website:

 

“Section 107 of the United States Copyright Act lists four factors to help judges determine, and therefore to help you predict, when content usage may be considered “fair use.”

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. If a particular usage is intended to help you or your organization to derive financial or other business-related benefits from the copyright material, then that is probably not fair use.
  2. The nature of the copyrighted work. Use of a purely factual work is more likely to be considered fair use than use of someone’s creative work.
  3. The amount and substantiality of the portion used in relation to the copyright protected work as a whole. There are no set page counts or percentages that define the boundaries of fair use. Courts exercise common-sense judgment about whether what is being used is too much of — or so important to — the original overall work as to be beyond the scope of fair use.
  4. The effect of the use on the potential market for or value of the copyright protected work. This factor looks at whether the nature of the use competes with or diminishes the potential market for the form of use that the copyright holder is already employing, or can reasonably be expected soon to employ, in order to make money for itself through licensing.

 

What does this mean for blogging? It means you need permission to use photos still under copyright. It means you can use excerpts (a few paragraphs – depending on the total length of the essay) from other people’s work in your own without asking their permission first, as long as you acknowledge the original work by title and author. As for tweets, because it is a requirement of eligibility for copyright that “sufficient effort has been expended on making the work to give it an original character”, very few would be eligible for protection and the great majority can be used without the handle owner’s permission. It’s always nicer to ask, though.

 

The Chronicles of Chill – Episode IV: (Me)Linda Gate(s)

After the seasons of the Throne of Ekitilopia and the Tword of Prophet TRappatoni, came a festival of peace in the land of Twilistia and Social Mediana. Brother cleaved unto brother, sister unto sister and many a-brother did verily entereth into the DMs and setteth P with the sisters.

 

In this time of peace, the Chief Priestess of Gossipotamia made it known unto all the men and women of Social Mediana, that once had her plea gone unto her father and twice he had heard her word and yea, had he now finally acquiesced to her desire to take for herself a new chariot. And her name was Melinda the Second. And her new chariot was a Roving Ranger of the finest Valyrian steel. And Melinda said she dipped into her vast coffers and gave Cosmas the Chariot Seller a mere 24 million shekels for the chariot. And it was a beautiful chariot to behold.

 

Melinda was a great Chief Priestess of Gossipotamia, probably the greatest the people of Social Mediana had ever seen. And she was also a chronicler of the sayings and doings of the people of Celebritine. And daily, hordes and throngs of people from Social Mediana, Gossipotamia and beyond came to worship at her temple and read her chronicles.

 

But a word was said against Melinda. First it was in a mild whisper from Nathan the scribe, that she had taken his engraving and put it on display at her temple. And neither did she seek his consent nor obtain his blessing. And the whisper grew into a rumbling that many of the ornaments in Melinda’s temple were taken from others and that her prophecies and chronicles were not hers. But the Chief Priestess scoffed at the suggestions.

 

Finally, shortly after the arrival of her 24 million shekel Valyrian Steel Roving Ranger Chariot, an obscure man appeared unto the people of Twilistia and Social Mediana and bellowed that Melinda had also taken his engraving, claiming it as hers.

 

This man, Aydeeveedov, appeared to be a chronicler himself of the demise of the Haramites in North Easteros, and his wrath was incurred against the Chief Priestess of Gossipotamia and her temple. And lo, waving his staff in Twislistia Square, did he proclaim:

 

“Priestess Melinda, if ye will not peaceably yield to me my engraving of the conquest of the Haramites, and if ye will not desist from this mendacious path, then takest thou notice and knowest thou, beyond a shadow of a doubt, that I will call upon the High god Googlam, and he will answer by fire. And your temple will become a memory. Yea, shall no engraving or chronicle rest upon another.”

 

And Melinda was silent. But her silence was the calm before the storm because the people of the land heard the cry of Aydeeveedov, and joined their cry unto his and lo, THERE WAS ABSOLUTELY NOT AN IOTA OF CHILL IN THE LAND!

 

For 5 days and 5 nights, over the feast of Eid, did the Twilistines and Social Medianites make pontification and supplication to the Chief Priestess. And there arose from absolutely nowhere an army of Pharisees deeply versed and intensely steeped, it seemed, in the ways of Googlam and engraving theft.

 

Repent Melinda, said many, for the kingdom of Googlam is at hand.

 

Away, said others. The hands of the Chief Priestess are no dirtier than the hands of other temple custodians.

 

Be gone, said yet others, and remove the envy of the Chief Priestess Melinda from your hearts. Knowest thou not that she is the first Priestess of Gossipotamia to acquire a Valyrian Steel Ranging Rover of 24 million shekels??!!??

 

Then the spirit of the Tword came upon Melinda and she spake. Not of remorse, repentance or restitution, but of the folly and jealousness of Aydeeveedov and his followers. And there was even more unchill.

 

And at this time, the Prophetess, the scandal and the furore came to be known as Melinda Gates. But this part of the revelation was obscure, so rely on it at your own peril.

 

And lo, Melinda had a sister, Lauratidyn, who was full of fury and yea, did Lauratidyn speak fire unto Ayedeeveedov and High Priest Nobblatum of the temple of Nobs. And Lauratidyn descended on Chxta of Greece, for having dined with Melinda and asking Melinda to send some worshippers to his own temple, before he became of fame.

 

And there was unchill, the likes of which had never ever been seen.

 

And then the unchill began to wane and diminish, until worshippers approached the Temple of Melinda in Gossipotamia and beheld the magnificence of its vanishment.

 

The words of Aydeeveedov had come to pass, for Googlam had heard his supplication. But Aydeeveedov merely unlooked. And the spirit of the demon schadenfreude swept through Social Mediana and Twilistia, as many were filled with glee.

 

And a final word of prophecy came from Chief Priestess Melinda – I will be back.