Findings by ADE ADESOMOJU reveal that judges of the Federal High Court impose light sentences in violation of clear provisions of the law on drug-related offences
Twenty-two-year-old Shedrack Odugbona was arrested by the operatives of the National Drugs Law Enforcement Agency with 127.9grammes of cocaine and 27.8grammes of heroin on May 28, 2013.
He was subsequently charged before Justice Okon Abang of a Federal High Court in Lagos and at the end of about less than a year trial he was sentenced to just one year imprisonment on February 10, 2014.
But 42-year-old Oluwaseun Oladipupo, who was arrested with 300grammes of cocaine on June 8, 2015, about a month after Odugbona was apprehended, was not that lucky.
On February 18, 2014, Justice Rita Ofili-Ajumogobia, another judge of the Federal High Court in Lagos, slammed a guilty verdict on Oladipupo with a punishment of five years imprisonment.
One would have expected a lighter sentence for Ismaila Isah who was apprehended with 0.2grammes of cocaine at Opolo area of Yenagoa, the capital of Bayelsa State, in the South-South region of the country.
But by the time Justice E.I. Ekwo handed down the judgment of the Yenagoa Division of the Federal High Court on May 16, 2014, the accused had to grapple with the reality of spending the next five years of his life behind bars.
In yet another state in the South-South geo-political zone, Justice Mojisola Olatoregun of the Federal High Court in Asaba, Delta State, on October 27, 2014, sentenced Egwu Okolie, 39, to one year imprisonment with an option of N500,000 fine for being in possession of 3.5grammes of cocaine.
Two days after Justice Olatoregun sentenced Okolie to 1 year imprisonment with N500,000 fine option, Justice Abubakar Shittu of the division of the Federal High Court in Warri, another part of Delta State, on October 29, sentenced Ibru Akemu to one year imprisonment for being in possession of 25 1.3kg cannabis sativa.
Meanwhile, earlier on June 9, 2014 at the Kano Division of the Federal High Court, 29-year-old Joseph Omozokpia, who was charged with four counts of trafficking/transporting, conspiracy, exportation and conspiracy for dealing in 616 kilogrammes of cannabis sativa, only got away with six months imprisonment on each of the counts. It could not be ascertained whether the sentencing was concurrent or not.
Same court, same law, different lopsided sentencing
The Federal High Court with 35 divisions spread across Nigeria’s 35 out of the 36 states of the federation has exclusive jurisdiction to try persons accused of drug-related offences.
“The Federal High Court shall have exclusive jurisdiction to try offences under this Act,” reads section 26(1) of the NDLEA Act.
The Nigeria’s anti-narcotics agency, established by Decree No. 48 of 1989 (now an Act), prosecutes suspects in the court using the NDLEA Act.
Though established in 1989 as an autonomous body to coordinate the enforcement of all drugs and drug-related laws, it started operations in 1990.
The law establishing the agency incorporates most of the offences created in other local legislations and international protocols and Conventions that were in existence before it.
In its Part II under sections 11 to 25, it creates the various categories of offences and imposes prison terms of not less than 15 years, including life imprisonment for majority of the offences including the most rampant in Nigeria, unlawful possession of cocaine and others.
“Any person who, without lawful authority, knowingly possesses the drugs popularly known as cocaine, LSD, heroin or any other similar drugs shall be guilty of an offence under this Act and liable on conviction to be sentenced to imprisonment for a term not less than 15 years and not exceeding 25 years,” Section 19 of the NDLEA Act reads.
Other offences like manufacturing, production, processing, cultivation, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transportation and exportation of any narcotic drug or any psychotropic substance contrary to the provisions (under section 11 and 20) attract life imprisonment or a jail term of “not less than 15 years and not exceeding 25 years”.
Conspiracy (under section 14) also attracts a jail term of “not less than 15 years and not exceeding 25 years”.
The NDLEA’s record of convictions for 2014 obtained by our correspondent showed lopsided sentencing of guilty suspects for offences for which punishments are clearly stipulated in the law.
Apart from flouting the law, the sentences imposed by the court show that the judges concerned gave consideration to the nature of drugs and the quantity that the suspects were prosecuted for.
Semblance of respect for the law
From available records, none of the 35 divisions of the Federal High Court imposed up to 10 years imprisonment for offences which clearly attract between 15 years imprisonment and life jail term.
The NDLEA’s Director of Public Affairs, Mr. Mitchell Ofoyeju, confirmed to our correspondent that the agency secured 2,051 convictions in 2014. No other prosecuting agencies in the country records as high number of conviction as that.
There is probably only one case that had semblance of due regard for the provisions of the law.
In the judgment of the Federal High Court, whose division could not be ascertained due to some omissions in the record, Aneke. A. Innocent, who was arrested with 19.5kg of cocaine on July 25, 2014, was, three months later, on October 24, sentenced to 15 years imprisonment, the minimum stipulated by the law, but got N250,000 fine option which the legislation does not provide for.
Serial offender got less than minimum 15 years sentence
Mohammed Rabiu (also known as Babajo), who was arrested in Kaduna in 2013 for a drug-related offence and convicted by the Kaduna Division of the court in the case numbered, FHC/KD/47C/2013, was again caught by the long arm of the law in the neighbouring Kano State in 2014.
The record did not show the particular offence for which he was convicted and how long he was sentenced in Kaduna.
However, on June 27, 2014, he was convicted for dealing in cannabis sativa (arrested with 2.2kg of the drug)and sentenced to five years imprisonment (still lower than the minimum prescribed by the law).
Exceptions to the minimum 15 years imprisonment
The NDLEA Act has not given the discretion which judges exercise in the majority of the drug-related cases.
Some of the few offences, which attract less than minimum 15 years imprisonment or for which judges technically have a measure of discretion to impose punishment, include “occupying or unlawfully permitting use of premises to be used for the purpose of storing, concealing, processing or dealing in the drug popularly known as cocaine, LSD (Lysergic acid diethylamide), heroin or any other similar drug”.
The law, in section 12, provides that persons guilty of such an offence on conviction will be liable to “imprisonment for a term not exceeding 25 years.”
Under section 15, the law prescribes a jail term “not exceeding 10 years” for “unlawful assumption of character of officer of the agency”.
Under section 16, it provides for imprisonment “not exceeding 25 years” for any person found guilty of unlawfully removing, concealing, destroying or in any way tampering with the drug popularly known as cocaine, LSD, heroin, or any other similar drug seized from any person or otherwise in the possession of agency or authorised person”.
Also, the law in section 17 prescribes a jail term “not exceeding seven years” for any person convicted of escaping or aiding the escape of other person in “lawful custody” and in section 18 it provides for the same terms of punishment for a suspect found guilty of preventing or attempting to prevent a summoned witness from attending court.
Offence of exportation of narcotic drugs under section 22 attracts punishment of a jail term of “five years without an option of a fine and his assets and properties shall be liable to forfeiture as provided under this Act”.
Other offences which fall under this category are offences committed by “bodies corporate” and failure of commercial carriers to “take reasonable precaution” to ensure among others that “its means of transport are not used in the commission offences under this Act”.
The law under section 24 prescribes prosecution of the body corporate which committed the offence and its official or agent found to be responsible for the alleged crime according to the provisions of the Act and that the court “may” order the winding up of such body corporate if convicted and the forfeiture of its assets to the Federal Government.
Section 25 prescribes upon conviction a fine “not exceeding N100,000” in addition to “any other penalty provided in any other Act or enactment” for such body corporate (owner of the commercial carrier) and “every person who at the time of the commission of the offence was a proprietor, director, general manager, secretary or other similar officer, servant or agent of the body corporate”.
An offence such as “attempts” under section 23 could attract punishment prescribed for the actual offence.
We are sensitive to public outcry
Judges are under judicial oath not to speak to the press.
But one belonging to the Lagos Division of the Federal High Court confided in our correspondent sometime in 2014 that he and another judge in the same division were being criticised by their colleagues and the public in general for imposing life imprisonment even when the law gave the court no other option. The judge mentioned the colleague’s name but the name is withheld.
The judge had received our correspondent in his chamber some days after convicting and sentencing a suspect who dealt in cocaine to five years imprisonment instead of the minimum provided for by law.
“I have stopped imposing life imprisonment because of criticism from the public and even some of our colleagues. We (the judge and another of his colleague in Lagos) used to impose jail terms ranging from 15 years to life. But we had to stop that because of the outcry.”
It’s an abuse of judicial powers
But Yemi Akinseye-George, a professor of Law and a Senior Advocate of Nigeria, disagreed with the judge and described the imposition of jail terms which were below what the law stipulated as an abuse of judicial powers.
Akinseye-George is the President of the Centre for Socio-Legal Studies, a non-governmental organisation, which played key roles in the drafting and passage of the new Administration of Criminal Justice Act 2015 and other laws in the country.
The ACJ Act 2015 has been described as revolutionary in terms of the reforms it seeks to bring to the ineffective criminal justice system that often sees criminal trials lingering in court for as long as a decade.
Akinseye-George explained that a judge could only have discretion when the word “minimum” or “not less than” is not used in the law.
“When a statutory provision stipulates the minimum sentence that can be applied in the case of conviction, judges are bound by that minimum; they cannot impose a sentence in violation of the statutory minimum sentence. However, where the word minimum does not apply, the judge has a measure of discretion as to the number of years even though the statute specifically mentions a certain number of years without indicating the minimum as the permissible sentence.
“That is judicial abuse of office; where the law stipulates the minimum, judges are bound (by it) unless minimum is not present. Some statutes may stipulate that when these conditions are met, then the minimum applies. But when they are not met, the judge is not bound to apply the minimum. So it depends on the legislation.”
He added that to prevent abuse of discretion, modern drafters of the law now use simple words that clearly indicate their intentions.
He said, “In modern legislation, the principle is say what you mean, that is, be as simple as possible and do not leave room for doubt. Where it is the intention of the lawmaker to disallow sentence below any particular term, maybe number of years, the provision should use the expression minimum or ‘not less than’ and that is what the National Assembly has done in Trafficking in Persons Act, that is the NAPTIP Act which was enacted in 2015.
“That Act stipulates a minimum of two years imprisonment for some offences. For some other offences it stipulates five years. In that circumstance, any judge that goes below the minimum prescribed by the legislature will be acting in violation of the law.”
An industry of corruption
The administration and enforcement of drug laws as well as the prosecution and defence of offenders are enmeshed in a cesspool of corruption.
It will not be surprising if both the prosecution and defence are happy with the tap-in-the-wrist punishment that drug convicts get away with.
In February 2014, Justice Okon Abang of a Federal High Court in Lagos sentenced Emmanuel Obiora to five years imprisonment for dealing in 8.2kg of cocaine and also ordered the forfeiture of N14m proceeds of the crime to the Federal Government.
But in the judgment, the judge accused the defence and the prosecution of colluding to conceal the accused persons’ confessional statement that could have easily secured his (Obiora’s) conviction.
More rots involving the agency’s officials are contained in the report by Justice Gilbert Obayan (retd.)-led National Committee for the Reform of NDLEA issued in February 2007, which catalogued various sharp practices engaged in by lawyers and other officers of the agency.
The Obayan panel had Mr. Tunji Alapini (then an Assistant Inspector General of Police), Chief J. I. Ojeh, Hassan Liman, Otunba Funsho Owoyemi,Mr. Bernard Hom (SAN) and Prince Ben Ikani, as members.
Part of the major findings of the panel was connivance of some NDLEA officers with some prison officials to allow over 100 drug convicts to escape without serving their jail terms.
The committee, which was set up by the then Attorney-General of the Federation, Chief Bayo Ojo (SAN), on October 20, 2006, indicted some named officials of the agency, including prosecutors, and recommended some of them, in certain instances, for dismissal or redeployment from their stations to other parts of the country.
But many of the officials remain in the agency, where they have been more than eight years after the report was issued.
‘Allegations of fraud not established’
When contacted by our correspondent, the NDLEA’s Director of Public Affairs, Mr. Mitchell Ofoyeju, dismissed the allegation of likely connivance between the agency’s lawyers and the defence and even sometimes judges, to achieve light sentences for culprits.
Though he expressed concern about the sentences, he however attributed the problem to the law, and the inability of the agency to appeal the court verdicts because of lean resources.
He said, “NDLEA has the highest number of criminal convictions in Nigeria and you know, following up cases involves money. So, we don’t have enough resources to start appealing every case.
“Last year we had 2,054 cases won. But the issue is that there is a remarkable development; it used to be lower than what it is. Over the years, there has been increased awareness on the part of the judiciary. So, we hope to see further improvement in that regard.”
While dismissing the allegation of likely fraudulent collaboration between prosecutors and defence lawyers in drug cases, he said judges were exercising their discretion according to the law.
Ofoyeju said, “I wouldn’t subscribe to that because one needs to have the fact before you start insinuating. The truth is that judges have discretionary powers, in passing sentences unless we get the Act (the NDLEA Act) amended.
“We have made previous attempts to amend the Act, particularly during the first tenure of President Olusegun Obasanjo. But during the two tenures of President Obasanjo, the amendment did not sail through. So, we are hoping to come up with another amendment process.
“I don’t want to put a benchmark but I don’t want to pre-empt the work of the committee but we are looking at a situation whereby there will be a minimum benchmark that the discretionary power cannot go below. That is what will put a final stop to the issue of light sentences.”
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