The Administration of Criminal Justice Act, 2015, is a piece of legislation that is meant to cure the mischief of unending criminal cases in Nigerian courts, but its implementation has turn lawyers apart. AMEH EJEKWONYILO writes.
Last Friday, a meeting of legal minds was convened by a former President of the Nigerian Bar Association, Joseph Boderin Daudu (SAN), to ruminate on the seeming conflict between some provisions of the ACJA and the 1999 Constitution, with a view to addressing the issue.
The issue in focus was a ruling of the Supreme Court in the ongoing criminal trial of a former spokesman of the Peoples Democratic Party, Mr. Olisa Metuh, where the apex court declined to stay proceedings in the matter.
The ex-spokesperson for the PDP, who with his company, Destra Investment Limited, is being prosecuted by the Economic and Financial Crimes Commission for the N400m he allegedly received fraudulently from the Office of the National Security Adviser in 2014, had had his appeal for stay of proceedings refused by the Supreme Court.
It was Daudu who fired the first salvo while trying to set the tone for the day’s discussion. Speaking at the seminar Daudu co-organised with some Senior Advocates of Nigeria who were drawn from both the prosecution and defence team to review the Supreme Court’s ruling in Metuh’s appeal against the Federal Government at the weekend in Abuja, the erstwhile NBA President strongly condemned the leadership of the Nigerian judiciary for surrendering its constitutional powers to both the executive and legislative arms of government.
Daudu who is a member of the Corruption and Financial Crimes Cases Trial Monitoring Committee (COTRIMCO), which was set up by the National Judicial Council, accused the judiciary of turning itself into the mouthpiece of the Federal Government’s anti-corrption fight.
Specifically, he carpeted the Chief Justice of Nigeria, Justice Walter Onnoghen, for his recent solidarity visit to President Muhammadu Buhari at the Aso Rock Villa, Abuja.
The CJN had in a recent courtesy visit led other heads of superior courts of records to the President, where he declared the judiciary’s commitment to the anti-graft war being wagged by the Federal Government.
“The judiciary should not be the mouthpiece of the executive arm of government in the anti-corruption fight. The judiciary should defend everybody; the defendants, because they have a presumption of innocence, the prosecution and even the state.
“But to take holistically the side of the executive; to go on and visit the President to reaffirm to him that, ‘we are with you in your anti-corruption fight’, disqualifies a lot of courts from hearing corruption cases.”
“The present day judiciary seems to have taken a step closer towards the state and distant itself from the defence.”
He lamented that the time-tested principles of separation of powers, had been breached under the country’s current political dispensation, adding that democracy is on the precipice in Nigeria.
“In what appears to be a flagrant breach of the Principles of Separation of Powers, the Executive Arm of Government of the Federation has invaded the sacred temple of our judiciary in ways many would never have expected even under totalitarian regimes.
“Our young democracy seems to be on the verge of a complete collapse especially as our judiciary renowned as the last hope of the common man appears defenceless and exposed to oppression by political actors who have continued to act with endless impunity to the detriment of the overall welfare of the State.”
The erstwhile NBA President explained that Nigeria’s Criminal justice system which took its roots from the Common Law jurisprudence, has been adversarial; which allows the court to play the role of an impartial arbiter, while the state and the defence submit to its jurisdiction.
“The adversarial system is in contrast with the inquisitorial system where the court is actively involved in the investigation of a criminal complaint. The underlying sentiment os the adversary jurisprudence being that – it is better that ten guilty persons escape than that one innocent suffer.
“Therefore, in adversarial jurisdictions like Nigeria, the presumption of innocence is not only cardinal but constitutional and unassailable.
“However, in recent times, it appears that the Nigerian judiciary is consciously drifting from adversarial to inquisitorial system of criminal justice. This drift is apparent in what appears to be a misconception of the application of our laws to wit; the conflict and supremacy of Nigerian Criminal Laws. The advent of the ACJA, 2015, seems to have been received as a complete abolition of our basic constitutional principles,” Daudu observed.
The SAN further observed that Nigerians are living in an “era where you see a lot of political witch-hunting in the name of criminal trials.”
“Today, the Nigerian judiciary has no hesitation limiting the constitutional rights of citizens in the face of any criminal allegation no matter how little.
“The state seems to have gone amok with criminal prosecution since the requirement of the existence of a prima facie case was withdrawn from our criminal procedure rules.
“Presently, defendants stand trial for baseless criminal indictments while others suffer severe breaches of their right to fair a hearing.”
In reviewing the decision of the apex court in Metuh’s appeal, Daudu picked holes in Section 306 of the Administration of Criminal Justice Act, 2015, which he said violated Metuh’s right to fair hearing as enshrined in Section 36 (4) of the 1999 Constitution.
Daudu lamented that the ACJA as a ‘lesser” law is super-imposing itself on the constitution, a situation he described as “intolerable.”
However, two SANs, Oladipo Okpeseyi and Prof. Akinseye George, who were discussants at the event, disagreed with Daudu’s position on the issue.
In his strong opposition, Okpeseyi argued that Section 306 does not take away the right of the defendant to fair-hearing, saying there is no conflict between the provision and Section36 (4) of the Constitution.
“Because of the inordiante delays we have experienced, the society is losing confidence in the judiciary. It is not because the judges are incompetent.
“If the Supreme Court sees a conflict, it will strike it down. Section 306 is only designed to cure the mischief of long criminal trials in Nigeria.
“The reality of the matter is that people are beginning to lose confidence in our own area of business (the judiciary).”
While parting ways with Daudu, Akinseye-George, noted that what the Supreme Court had done in Methuh’s case was to say, “enough of the contraption of the delay tactics.”
“The noble justices of the apex court upheld the provision of Section 306, because the judges cannot be oblivious of the challenges confronting society, where Nigerians are abused and harassed abroad on account of systemic corruption in the country.”
The Professor of Law, opined that judicial evolution is taking place in the nation, commending the judiciary for rising up to the ocassion.
“Mischievous defendants do not want their cases to end. This is the mischief that Section 306 is intended to cure.
“The ruling of the Supreme Court in Metuh has restored the dignity, integrity and agility of the Nigerian criminal justice system. The apex court has rightly upheld section 306 of the ACJA as a veritable instrument for curbing the abuse of Stay of Proceedings and interlocutory criminal appeals. The ruling is well-founded in law and logic. It suppresses the notorious mischief of delay of criminal proceedings while advancing the objects of the ACJA 2015: to ensure that the system of administration of criminal justice in Nigeria promotes efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crime and protection of the rights and interests of the suspect, the defendant, and the victim.” Akinseye-George submitted.