Kingsley Ogbonda disagrees with the recent Supreme Court ruling on Udeogu and others
Under the miasma of Covid-19, the Nigerian Supreme Court managed to dish out another questionable judgement. If their justices reached their recent decision in Ude Jones Udeogu v. Federal Republic of Nigeria & others, SC/622c/2019 under the impression that Nigerians have been discombobulated by Covid-19, they have mistaken. Majority of Nigerians are unaffected by the disease and a number have protested their latest controversial decision.
On 8 May 2020 in the case mentioned above, otherwise known as the Orji Uzo Kalu’s case, the Supreme Court quashed the conviction of Orji and his co-accused for corruption and gross abuse of power. The Supreme Court in its judgement read by Justice Ejembi Eko, held that the High Court and trial judge Justice Mohammed Idris that convicted Orji lacked jurisdiction, at the time the conviction was secured. In the Supreme Court’s opinion, the trial judge having been elevated to the position of Justice of the Court of Appeal before concluding the trial, ought not to have returned to complete the case. Perhaps, at this point it is important to state three key features of the case that incensed those criticising this judgement. First, it was the appellant, Orji’s co-accused who requested that the trial judge be given the permission to complete the case. Second, the trial judge was given the expressed permission by the president of the Court Appeal to return and conclude the case. Third, and of huge significance, the President of the Court of Appeal gave the permission to Justice Idris in reliance and in accordance with Section 396 (7) of the Administration of Criminal Justice Act, 2015. S.396 (7) of ACJA as has been copiously quoted states ‘’ Notwithstanding the provision of any other law to the contrary, a Judge of the High Court who has been elevated to the Court of Appeal shall have dispensation to continue to sit as a High Court Judge only for the purpose of concluding any part-heard criminal matter pending before him at the time of his elevation and shall conclude the same within a reasonable time: Provided that this subsection shall not prevent him from assuming duty as a Justice of the Court of Appeal ‘’.
Even for a lay mind, S.396(7) of ACJA could not have been expressed in a more succinct ordinary English language. Due to its clarity in word and intent, I urge a reader to underline every sentence in S.396(7) ACJA, 2015 to appreciate it. Yet, despite the wording and the clear purpose of that Legislative Act, the Supreme Court in its wisdom in the instant case nullified the Act. This is because of its apparent inconsistency with the Ss. 290, 252 and 253 of the Nigerian constitution 1999.
The Supreme Court said that by going back to finalise the case in the High Court, Judge Idris was wearing two hats simultaneously; that is being a Judge of the High Court and Justice of the Appeal Court to which he had been elevated to, at the same time. This assertion would be correct if, a) he was hearing two new cases at the same time – a trial in the High Court and an appeal in the Court of Appeal and/or, b) if the Orji’s case in the High Court was not almost concluded. The fact which the Supreme Court ignored is that in Nigeria, in corruption cases the accused regularly deployed dubious tactics to frustrate their trials, often with the consent of judges. It is a known fact that cases, particularly those connected to political officer holders involving huge sums of money drag on painfully slow and in most instances aborted.
The duty of the Supreme Court to strike down a legislative law that conflicts with the constitution is an established legal principle. This is to be found in an earlier case in United States of America from where Nigeria borrowed its current constitution and system of government. In the landmark case – MURBERY V. MADISON (1803), the USA Supreme Court held, that it has not only the duty to interpret the Constitution but also the power to review and strike down any contrarily section of a legislative/administrative law to the Constitution. Therefore, stating the supremacy of the Constitution over other national laws. This is what the Nigerian Supreme Court has reinforced in Orji’s case. However, what is worth noting and more relevant for this discussion is the comment of the same American Supreme Court in McCULLOCH V. MARYLAND (1819), where the Chief Justice said, ‘’a constitution that attempted to detail every aspect of its own application would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind — , its nature, therefore requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves’’. Simply put, judges should not expect that the constitution should have foreseen and captured all eventualities. The legislature has implied powers to do that which the constitution failed to do. The judges are themselves not expected to be slavish to the Constitution.
In his address to the Society of Teachers of Public law in 1972, Lord Reid, one of the past imminent law Lords of England said that the idea that judges only declared the law is ‘’ a fairy tale’’. He advised however, that in moulding the law judges should have regards to common sense, legal principle and public policy in that order. There are very good reasons for judges to be involved in moulding the law. First, they are aided by the rules of legal interpretation, each rule aimed at ensuring that justice is done in any prevailing set of circumstances. Second, imagine the lightning speed at which technology and social developments occur. It is inconceivable that a Constitution would foresee all the legal questions that would arise from these developments. In these circumstances, the judges are called upon to aid the legislatures in resolving conflicts associated with these developments to ensure order, economic, social and political progress of the society. There are ample examples in Britain of legal progressivism, the country that bequeathed Nigeria its common laws. But I am minded that Britain has a somewhat flexible constitution and so the example of USA that has a rigid constitution which Nigeria has adopted is more apt. In WADE V.ROE (1973), an abortion case, though there was no provision in the USA Constitution for the right of abortion, the Supreme Court held that the right to privacy under the Constitution extended to the right of individual to have an abortion.
In 1964 at the height of the civil rights movement, by a Presidential Order the Civil Rights (Affirmative Action) Act was passed. It required public bodies to have a quota in employment and admission into colleges for the socially and economically disadvantaged, particularly the Africa-American under-class. Many argued that it is unconstitutional as it went against the principle of equal opportunity in the constitution. A plethora of cases have gone to courts, including the American Supreme Court, arguing that the Affirmative Action is a reverse discrimination, the Supreme Court has remained strong in its view in enunciating the basic tenet of the Act. In GRUTTER V. BOLLINGER (2003), Supreme Court held that the Act promoted diversity at all levels of society. Although the initial reach of the Act has been narrowed in recent times the principle of the Affirmative Act remains firmly intact.
In Orji, the Supreme Court knows that it could have chosen the right cannon of interpretation – the purposeful rule, to give meaning to S. 396(7) ACJA 2015, to help in stemming the financial haemorrhaging the country is under. The Supreme Court cannot feign ignorance of the damage that corruption has inflected on the psych of the nation. The country has remained largely underdeveloped as a consequence of corruption – open stealing of public money.
I have been very surprised at the lack of deep appreciation of the role that judges play in shaping society by those who have defended the Supreme Court’s judgement in Orji’s case. More disturbing is their narrow interpretation of the law. They argue that Constitution is the grundnorm, full stop. Really! The few who bothered to acknowledge public policy as an important ingredient in courts’ decisions, particularly the Apex court of land, waffled in their explanations. Public interest requires that you gauge public opinion on activities that if left unrestricted will harm the general good and retard society’s progress. In Nigeria none is unaware of the harmful effect of corruption on the nation – socially, economically and politically. I dare say, including those engaged in the act, in their rare moments of sober reflections.
It has been suggested that to remedy the defect of S.396(7) Of ACJA it should incorporated into S.252 of the constitution. This would avoid future conflicts in this area of the law. Why? Should the constitution be changed every time judges are mischievous?
President Buhari’s lack of transparency in his method may have riled many and undermined his fight against corruption, but that is not a very good reason for the Courts et al, to sink the country deeper into corruption cesspit. Not that it means anything, I have suggested to few officials I have fortuitously met that all recovered stolen monies should be earmarked for public projects and recovered amounts regularly disclosed to Nigerians. This way, the fight against corruption will resonate and Nigerians will buy-in to the project.
Quoting a UK government advert, ‘’I am not sure I know what I am saying, but I am glad a have had a chat’’.
Ogbonda wrote from London, United Kingdom