The Nigerian justice system is known for throwing up a surprise of a gargantuan, earth-shaking, epoch-making magnitude every now and then. One was the Supreme Court judgement which handed victory to the National Party of Nigeria in 1979, in the election petitions appeal: Chief Obafemi Awolowo (Unity Party of Nigeria) vs Alhaji Shehu Shagari (National Party of Nigeria) over whether the latter could be deemed duly elected despite not having satisfied the stipulated provision of wins in two-thirds of the then 19 states comprising the federation. It was argued that the two-thirds formula prescribed in the electoral law was not a mathematical exactitude, but one of legal construction. As long as the winning candidate had “substantially complied” with the stated provision of the law, the court should oblige him. So, instead of ordering a re-run of the election, the Supreme Court agreed with the defence counsel, and ruled in favour of Shagari (with the caveat that the judgement be not cited as a precedent in future cases). That decision changed the course of Nigerian democracy for the worst for two generations, as the winning party, the NPN, literally went on the rampage for the entire term in office; pillaging and siphoning money from the national vault with reckless abandon, throwing cash around like confetti, and brazenly rigging the subsequent election to retain power four years later, before the administration was kicked out in a popular coup d’etat led by none other than the current President, Major-General Muhammadu Buhari (retd.) in 1983.
The consequences of the infamous two-thirds verdict left a devastating and utterly paralysing legacy not only for the judiciary, but also for the Nigerian economy. Nigeria’s foreign reserves were in surplus by $45bn when Shagari assumed office in 1979. It was frittered away on import of all sorts, and the administration started piling up unsustainable debts, from which the country has not recovered to this day. It also set back Nigeria’s attempt at creating a viable democracy for decades, the consequences of which are still with us today. The submission here is that another such colossal judgement is the Orji Uzor Kalu’s Supreme Court appeal decision of May 8, 2020 quashing his conviction. The Economic and Financial Crimes Commission had spent years investigating the former Abia State Governor and Senate Majority Chief Whip in the current All Progressives Congress-led National Assembly. They had done a good job of amassing a water-tight evidence to secure the conviction and a 12-year jail sentence for Kalu.
As it happens, for once, the higher courts could not fault the evidence adduced by the prosecution so, the search for a different exit route for “distinguished” Senator Kalu was urgently needed.
The Supreme Court did not disappoint. And, like a jolt from a thunderbolt, it found one. The judge who had found him guilty as charged at the Federal High Court, Lagos, Justice Mohammed Idris, in December 2019, had been elevated onto the Court of Appeal before the conclusion of the case, and had to be recalled and given a “fiat” by the President of the Court of Appeal to conclude and reach a verdict. Consequently, he was already donning his freshly cut toga of a Justice of the Federal Court of Appeal when he pronounced the sentence on Kalu from the benches of the Federal High Court of which he was no longer a member. But, wait a minute, is there not a law, an Act of the National Assembly, which authorises such anomalies? Of course, there is. So, what exactly is the problem? The plot thickens…
It used to be quite normal in Nigeria for a judge to spend years presiding over a particular case, which in all likelihood has been stymied by the actions of both the prosecuting and defence lawyers themselves. It is not uncommon for an average case to drag on for two, five, 10 and even 15 years before its final resolution. The common practice was to re-assign such a case to another judge if the presiding judge had, in all likelihood, moved on through promotion, retirement or death. This became a massive loophole (or lacunae in legal parlance) which defence lawyers were constantly milking for the benefit of their clients, especially in corruption cases. Prolongation of a legal case in the system allows for a fight to a standstill on many occasions, with case files staying in permanent abeyance, while the accused walks free unperturbed and unencumbered by any adverse judicial pronouncements. The game was always worth the candle as everyone came to understand. After many years of wrangling about this and under international pressure, the Administration of Criminal Justice Act was enacted into law in 2015. Section 396 (7) makes provision for and legitimises the recall of a judge to conclude that which he or she had started, especially the ones deemed very close to a conclusion. Common sense. Case closed you might think? No, not in Nigeria.
In its wisdom, the Supreme Court of Nigeria saw fit to override the clear provision of the law in the ACJA last Friday, on the grounds that it was “unconstitutional”. Remember, the ACJA was debated and deliberated upon for several years throughout the length and breadth of the judiciary before passing through the National Assembly and being enacted into law. All of that has been an exercise in futility? The clear provision allowing for a recall of a judge to finish an otherwise abandoned job has now been declared a “nullity” by the judgement of the Supreme Court. Where were these learned Justices when the ACJA bill was passing through the National Assembly? What makes it even more intriguing is the fact that it was Kalu’s defence team who originally applied and fought for Justice Idris to be recalled to finish the job.
This was done in the expectation of a favourable verdict for their client, of course. Once the judgement became unfavourable, however, the same defence lawyers rushed another application to the court asking for it to nullify the judgement on the basis that the same Justice had no right to preside over it! Hope you are still following? You beckon a thief to come and steal from a farm, and immediately call the farm owner to come and apprehend him. Let us be clear and unambiguous, the Supreme Court judgement as held by their Lordships is an affront to the rule of law. It has undermined public confidence in the judiciary to serve the cause of justice. More tellingly, if not quickly rectified (and that is easier said than done), it could cripple the country’s ability to hold public officials to account for a generation.
That said, only the EFCC would be surprised by the turn of events. And only its leadership would be foolhardy enough to think it is worth going through another trial. This column has argued several times for the EFCC to move away from criminal to tougher civil remedy options in official corruption cases. Upon Kalu’s conviction in December 2019, this column had warned: “Far from the pronounced term of imprisonment being upheld, or served, we are likely to see it being reduced to the equivalent of a slap on the wrist for the politician. So much for the prison sentence then”. This assertion remains valid even in view of the new trial and its likely outcome. (See, “Why Kalu’s prison sentence falls short”, The PUNCH, December 10, 2019). Kalu, of course, did better than having a slap on the wrist, he extracted a golden handshake from the system. Let the anti-graft lawyers read the content of the write-up in the above reference, and the detailed legal argument around the tougher civil remedy options being suggested, then act accordingly, before embarking upon another wild goose chase.