Kesiena I. Oghoghorie argues that the supreme court ruling on Ude Jones Udeogu and others may be a blessing in disguise

The Supreme Court decision in the case of Ude Jones Udeogu, Orji Uzor Kalu & Another, brought to the fore the constitutionality of Section 396(7) of the Administration of Criminal Justice Act 2015 (ACJA), leaving in its wake residue of issues in the legal space. Section 396(7) allows a High Court Judge, upon elevation to the Court of Appeal, to continue as a High Court Judge for the purpose of concluding a part heard criminal matter. The constitutional impropriety of the provision hinged on its conflict with Section 253 of the 1999 Constitution (as amended), which provides that a properly constituted Federal High Court shall consist of at least one Judge of that Court.

In this case the presiding Judge, who was elevated to the Court of Appeal, proceeded, relying on the Section 396(7) ACJA provision, to complete the proceedings at the Federal High Court. The Supreme Court unanimously held that the court was, in the circumstance, not properly constituted, ordering that the case be remitted to the Chief Judge of the Federal High Court for the trial to start de novo (from the beginning).

Yet beneath the Supreme Court’s decision lies a silver lining, in the form of it being a springboard from where to dive into the deep waters to dredge some of Nigeria’s judicial and legislative-making processes, with a view to setting out a road map on the way forward.

First up is the Supreme Court’s order that the matter be remitted to the Chief Judge of the Federal High Court for the trial to start de novo. De novo, according to the Black’s Law Dictionary, connotes a new trial on the entire case, covering questions of fact and issues of law.

Yet the de novo rule, as perceived in some quarters, is a clog in the wheel of justice and, from the Supreme Court decision, a judgment and not justice. The negative perception of starting the matter de novo is viewed through the lenses of the challenges involved, not least a feeble prosecution ensuing from the possible death of witnesses, the possible reluctance of witnesses to testify, the likely unavailability and memory loss of witnesses. There are also issues around the compromise of documentary evidence, the extra financial cost, resources of litigation, extra time, energy, among others.

There is, therefore, the need for the strengthening of the criminal justice system by redrawing the long-established practice of laying down tracks as the train is speeding down them. It has always been a survival strategy. There is now the need to establish a long-term strategy on where the track is heading.

There would therefore be need, as part of the on-going Constitutional Review process by the National Assembly, for Section 396(7) of the ACJA to be incorporated as a proviso to Section 253 of the 1999 Constitution (as amended), as this would help to cure the defect in the decision of the Supreme Court, as well as help to achieve a major objective of the ACJA, which is for the quick dispensation of criminal matters.

Further, the Supreme Court decision should be seen as an avenue to herald a new wave of technological innovation and confidence in the criminal justice system by discarding the frosty old approach to the dispensation of justice. Section 84 of the Evidence Act 2011 already allows for computer generated evidence, while Section 364(1) of the ACJA provides for verbatim electronic recording of court proceedings, with the certification or authentication by the trial Judge of the transcript at the end of each day’s proceedings.

It is noted that Section 364(1) of the ACJA only provides for proceedings to be recorded electronically, without clarification as to whether the recording should be by video and/or audio. It is therefore suggested, moving forward, for amendment to be effected to the Section 364(1) ACJA provision so as to make such recordings mandatory for both video and audio recordings, with the proceedings to be signed and attested to by the prosecution, defense counsel(s), the parties and the presiding judge.

Such move, in addition to Section 364 (2) of the ACJA which provides for the taking of notes in writing in a book form to be signed at the conclusion of each proceeding, would help to address the issue of de novo hearing, as the video and audio recordings, and the notes would constitute the court’s record and aid the new trial judge to have direct observation of the witnesses, the evidence, and reach an informed decision.

The Supreme Court’s decision could also be used as a tool to wrench the wheel of legislative drafting to more favorable judicial territory. Legislative drafting is, generally, an essential instrument in the development of legal rules and regulations. It is vital as an aid in the ordering of rules of conduct in the society and crucial to socio-economic development.

Yet, the inconsistency between the Section 396(7) ACJA provisions and Section 253 of the Constitution has clearly exposed the fault lines in the legislative drafting process in Nigeria. Wise old birds will however murmur that we have been here before, such as the voiding of Section 140(2) of the 2010 Electoral Act by the Federal High Court in the 2011 case between the Labour Party v INEC & Another, for being inconsistent with the Constitution.

There is therefore the need for the strengthening of the legislative drafting process, and avoid leaving the door ajar for any uncertainty. Such move would require a holistic approach to comprehensive research into any proposed legislation so as to identify any possible implications and conflict with any extant legislation(s) that may impede its implementation. This approach would ensure that however benevolent a proposed legislation may be, it would not be elevated above the content of any extant law.

Finally, proper coordination of the different strands salient to the legislative process would need to be enthroned. This would involve cooperation by all relevant agencies connected to any proposed legislation, as a candle loses nothing by lighting another candle.

Thus the ACJA, at its formative stage, should have had a well-coordinated coalition of agencies in the drafting process, including the Law Reform Commission, the Nigerian Bar Association, etc. These bodies should, moving forward, be considered, as partners in the overall legislative drafting process, as Knights in armour linking arms in cooperation to achieve a sustainable and enduring legislative agenda in Nigeria.

Oghoghorie wrote from

Nigerian Law School, Enugu Campus