‘Amendment of Investment Security Act will resolve jurisdiction conundrum’

The Federal Government has begun the process of amending the Investment and Security Act (2007) to bring it in tandem with the provisions of the constitution especially as it relates to the jurisdiction of the Investment and Securities Tribunal (IST) created by the Act.

The Attorney General of the Federation and Minister of Justice, Abubakar Malami (SAN) and the Chairman of the Nigerian Law Reform Commission (NLRC), Kefas Magaji, made this known yesterday in Abuja at a one-day workshop on the reform of the IST under the ISA organized by the NLRC.

Represented by Hamza Tahir, the Director, Legal Drafting at the Federal Ministry of Justice, Malami said the workshop was aimed at trying to bring in tandem the ISA and the constitution because some of the provisions are seen to be in direct conflict with the constitution.

“The only way to remove this quagmire is to have a forum where it is discussed with jurists and other stakeholders so that investors in Nigeria can have confidence in having a robust law that will govern their investments. This is especially looking at the drive of the Federal Government in trying to provide an environment for ease of doing business as well as diversify the economy from mono to other areas,” he said.

He added that the government’s desire can only be achieved with a strong legal framework that will give investors confidence in investing in the country.

Explaining the grey areas, Magaji said, “it appears there are some conflicts between some provisions of the ISA and the provisions of the constitution which deal with the jurisdiction of the Federal High Court (FHC). The jurisdiction of the IST by the ISA appears to have vested exclusive jurisdiction on the IST and the constitution has vested exclusive jurisdiction on the FHC. The question that has thus been raging over time is ‘which is the appropriate forum? Is it the FHC or the IST?”

He said from the laws that empower and regulate the IST, it is supposed to be an inferior tribunal that should resolve some of the disputes within three months. “One of the challenges we have expressed is that the IST sees itself as though it is equivalent to the FHC” because its remuneration package is same with that of FHC.

Another aspect, according to Magaji, that brought about the conflict is that the decisions of the IST go on appeal to the Court of Appeal same as those of the FHC. “So, they seem to see themselves as though they are equivalent to FHC and that is why the conflict arises,” he added.

He said the proposal in the amendment is thus that members of the tribunal and its chairman must realize that a tribunal remains inferior to the court and that the decisions of the tribunal should therefore go on appeal to the FHC and not to the Court of Appeal.

“It is always difficult to amend the constitution but it is easier to amend other laws; and the constitution is clear that where there is a conflict in the provision of the constitution and provisions in other laws, the provisions of the other laws become a nullity.

“Thus, what we are saying is that in order to avoid anything that may appear as a conflict with the provisions of the constitution, it is to come up with a proposal for the amendment of the ISA so that it can be in tandem with the provisions of the constitution,” he said.