Plea bargain has no legal backing —Prof Osunbor

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FOrmer governor of Edo State, Prof  Oserheimen Osunbor, is the head of the Nigeria Law Reform Commission, NLRC.  In this interview, he speaks on  the activities  of  the commission and its challenges since he took over in January this year, bills proposed to reform the country’s criminal justice system, as well as related issues. Excerpts.

By Dayo Benson and Emman Ovuakporie

Senator Osunbor

Senator Osunbor

AS the Chairman of the Nigerian Law Reforms Commission, can you take us through the mandate of the Commission, the challenges and prospect?
The work is a very familiar one. It is essentially about reviewing, reforming and updating our laws. It should be very familiar to anybody, who has been a Professor of law. My background as a Professor of law has also been enriched by my experiences as a Senator, who has had a lot of legislative experience in the process of law making. And what we do in the Commission is law review and reform.

Our job stops when a draft bill or proposal is formulated and sent to the legislators for enactment. The process of lawmaking is that of a legislator. Sometimes, it is necessary to make these distinctions. But we play an essential role in that process. Other than the bill that originate from the Commission or are referred to the Commission from the Office of the Attorney General of the Federation, we also have bills that are referred to us either by individual members of the National Assembly, who are sponsoring bills or by relevant Committees of the Senate or the House of Representatives.

When we finish, the bills will be published as a prelude to the conduct of a public hearing. So that engages the Commission quite a lot. We also work on bills from members of the National Assembly or Committees of the National Assembly, in addition to working on bills initiated by the Commission. As I said, it’s a process that is not strange to me as a lawyer, because to get to the position of a Professor, you must have done a lot of research, lots of review and proposed reforms.

From your experience as a lawyer and now the Chairman of  Law Reform Commission, which aspects of our laws do you think are due for reform, especially  in our criminal justice system?
That’s indeed one area that we are working on. The administration of criminal justice bill is a major innovation in criminal justice system in Nigeria. But let me say that the bill did not originate in its entirety from the Commission. What I understand about that bill is that the Office of the Attorney General of the Federation constituted a task force to work on the matter. So, it is the draft bill that they now sent to the Nigeria Law Reform Commission. But there is an aspect of the bill which is entirely a product of the Commission.

And that aspect deals with Plea-bargaining. Plea bargaining has been a topical issue within the general subject of the administration of Nigeria’s criminal justice system. We at the Commission discovered that even though, it was being said that Nigeria operates plea bargaining, there was nothing in our laws that provided for plea bargaining.  So, the law enforcement agencies, be it Economic and Financial Crimes Commission, EFCC or their like that are purporting to be using plea bargaining as a way of administering criminal justice in the system and they really have no legal basis. There’s no legal provision in our laws which allows that. Except that plea bargaining is a very useful tool in the criminal justice system.

So what other laws have undergone such reforms?
Of course, there are other bills that we’ve worked on. Like the Trustee Investment Act, which seeks to update the old Act which has become outdated. It spells out investments in which Trustees can hold investment in a trust fund. In what kind of investment can a trustee holds fund. We have examples such as the Nigerian Coal Corporation, the Nigerian Railway Corporation among others. So, we have tried to modernise it and expanded the scope of areas where trustees can hold trust. And also introduce provisions for remuneration. Under the old law, trustees are not entitled to remuneration. And also provisions for penalty for trustees, who mismanaged trust.

Penalty for trustees
This is an area outside criminal laws, areas where we have made efforts at reforming. We are working on two very critical things that would help the nation’s criminal justice system. One: Sexual harassment. Not rape, because the law in Nigeria has no provision for sexual harassment. For instance, for a man to continually harass a lady, stalking a lady all over the place. Or for a superior officer abusing a lady and indecently pressurizing and threatening her with all kinds of actions. In our governments and educational institutions, things like these are really going on. So, we are trying to introduce these laws so that peoples’ rights can be protected.

And we are also looking at the introduction of sentencing guideline. Because you find a situation where an offender for the same kind of offence gets 15 years in one court, and in another court, he gets less or even more and in some other cases, the judge may just fine the offender, and the offender would pay the fine and go away. This is not justice. So, we deemed it necessary to set out certain guidelines for judges as to the things to consider when they are passing sentences on offenders.

And to separate the two processes, Nigerian law now with regard to criminal procedure, and even the Evidence Act emphasize the process leading up to the conviction of the accused. But not enough time is devoted to the process and procedure between the conviction and the punishment. So, there are a lot of issues that can arise from the point of view of the judge saying, ‘I hereby find you guilty as charged.’ Because what punishment to be imposed will depend on whether the accused is a first offender, or a serial offender or whether the offence was against children or the elderly, his willingness to show remorse, or is he likely to go back to such crimes? What do witnesses have to say about his character?

Maybe the witnesses that were called to testify; whether he actually committed the offence, whether he was innocent or guilty. But these witnesses you are calling now are not coming to testify as to the guilt or innocence of the offender, but as to the kind of sentence the judge should issue on the accused based on what they know about him. Has he been somebody who has done so much for society?

Is he somebody who has been so very religious, and what he did, was it due to social influence of friends? It’s necessary for a judge to avail himself of all these information, so as to be seen to be just. So, we’re developing these kinds of guidelines. We are proposing the setting up of a Sentencing Guideline Council under the headship of Chief Justice of Nigeria.  From time to time, the bill if successful will ensure that sentences match the offences committed.

We are also looking at sentencing of children (juvenile cases) depending on the provisions of the Child Rights Act. While you can call an adult a convict, you shouldn’t be calling a child a convict. Where as an adult you went through a real trial, a child went through adjudication. These are some of the expressions that can stain the character of a child. What kind of punishment should a child suffer? The idea is that except in very rare cases, a child should not be given a custodian sentence.

There are so many other alternative punishments for children. We are doing all these in conjunction with the United Nations Office for Drugs Narcotics and Financial Crime. We are working hand-in-hand to guide judges and Magistrates as to how to handle children.

Looking at some of the sections of this law, it appears to be gender bias because it places too much emphasis on the male, whereas the offence can also be committed by a female. What is your reaction to this?
That’s an interesting question. But the answer is a very simple one. We have what we call, Interpretation Act in Nigeria which spells out how to interpret laws. And it says that reference to he, also includes she. But there’s also a bill which we’ve just worked on, sponsored by Sen. Chris Anyanwu. It deals with rape and other sexual offences against women. In one of the provisions that was debated and modified from the original that was submitted to us, it says that for an offence of rape to be committed, there has to be penetration. But there are cases now where the victim has nothing to penetrate or is forced to penetrate.

In a case involving a man being forced to penetrate, can he sue for redress?
Yes he can. In this case, we say that the victim was forced to penetrate, so it’s whether the victim was forcibly penetrated, or the offender forced the victim to penetrate her which is against his will. Either way, there is an offence. And in fact, there’s a story in a foreign newspaper some days ago. Somebody, a bugler went into a shop to burgle. But the woman is a karate specialist. She tackled the bugler, took him to a place and kept him there for four days, having sex with him. So, she will be convicted for raping the man.

What of the laws that have their origin in the pre, and colonial periods?
Well, a lot of them have been reformed now. The commission worked on those I think in 1990 and 1998 that some reforms were made. What has happened is that many states of the federation is that they have domesticated their own versions, the same thing at the federal level. The ones that remain now at the federal level may not be more than four or five.

One of the importance of such laws is that its operation may just be in the Federal Capital Territory, FCT for instance, and not in the whole country. Like the Sale of Goods Act between a buyer and a seller. If you buy a car and its not working well, the law that will govern that transaction is the Sale of Good Act of 1893.   But if you go to Lagos State, they won’t be using the same Act of 1893. They would use a different one for similar objective.

Interstate commerce
The commission is also working on the Sale of Goods Act in order that we can have a law for the FCT, because the National Assembly serves as the House of Assembly for the FCT. And then we will have a law which will govern inter state commerce, because if you have inter state commerce covering Lagos, Benue, Kaduna, Kano among others, which law will apply in such a situation. So, we now have to look at the federal law because it should take precedence.

The expression, domestication has two meanings. The real meaning of domestication has popular international dimension with respect to treaties. In any of the treaties Nigeria signed, they do not automatically have effects on Nigeria unless they become domesticated.  We passed those treaties as Laws of the Federation or Act of the National Assembly. Those are the ways through which they are domesticated. Where the matter falls within the concurrent legislative list, the National Assembly cannot legislate for the states.

But one thing with international treaties, once you have signed, you are under obligation to legislate exactly what you have signed as a law governing your country in that area. In matters of treaty as they apply to a purely federal state, legislative houses of all the tiers of government should have legislative competence for domestication. Once all the tiers start exercising their rights as enshrined in the constitution, then we will have a satisfactory federalism.

Since you assume office, what were the challenges you have had and how have you overcome them?
The most serious of the challenges we are facing right now, and you would say that it’s not peculiar to the Nigerian Law Reform Commission is the issue of paucity of fund. You know that the budget for this year was not signed on time, and the releases have not started coming as we would expect.  As a government body, without money, there is very little we can do.

We have projects that had been approved under our budget for this year. But we have not been able to do much on those projects because the money to embark on them has not been released.  There is a lot the commission is trying very hard to achieve within the shortest period, but we hope we are able to cover much ground before the end of the current financial year. So, we are bracing ourselves up to be able to work at a very fast pace.

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