“Are you going to hang him anyhow and try him afterwards?—Mark Twain, 1835-1910. VANGUARD BOOK OF QUOTES, VBQ p 85.
By Dele Sobowale
Two separate events in the last week furnish good examples of what had become of my hero – Professor Sagay. The first was a judgment; the second was a controversy that might still end up in the courts. Both reflect Sagay’s increasing tendencies to prejudge issues and to use his frequent access to the media to press personal opinions, even if legal, as universal truths.
Saraki’s acquittal by the Code of Conduct Tribunal, CCT, on a no case submission by the Senate President’s lawyers was the first. The argument regarding the constitutional powers of the National Assembly, NASS, with respect to budgeting is the second. The two instances revealed Sagay in a new light – quite unfamiliar to those of us who had long admired him. Even before Sagay’s views were reported on those two occasions, I already knew what his personal verdict would be. He would stand shoulder-to-shoulder with the Federal Government by adopting selective evidence to support his pre-determined conclusions.
Permit me to reverse the substantiation of my charges against Sagay. He, among others, now serving the FG, argue, quite unconvincingly, that the NASS has no powers to alter the Executive branch’s budget as presented. Nothing can be further from the truth. The proposal a President sends to the legislators each year, called an Appropriation Bill or Budget, is nothing but the administration’s statement of intentions. The representatives of the people – the NASS – are empowered by the constitution to examine the document critically, approve, disapprove, or amend, as they find appropriate and send the result of their deliberations back to the President as the budget for the year. It is simply absurd for anybody, SAN or not, to assert that the NASS is seating there as a rubber stamp of any drivel that the Executive sends to them. It is never done.
Certainly, the NASS might in the process of amending insert elements which the President finds objectionable. But, there is another provision for that matter to be resolved. The President can refuse to sign the bill sent to him by the NASS and give his reasons openly. But, that veto power has an expiration date. Before that date, the Executive and the legislative branches would try to reach a negotiated settlement. Once reached, the budget that emerges becomes a collective responsibility. Neither the President nor the NASS can thereafter accuse the other branch of working against the interests of the people – as the self-righteous people in the Presidency are doing now – which is dangerous, very dangerous for any democracy.
If Osinbajo was sincere about the objections he raised later, then he should have vetoed it. To sign first and complain later is intellectually deceptive. So, Sagay’s assault on the NASS for altering the bill sent to them is totally misplaced. It amounts to blaming the victims of Executive high-handedness – just because Sagay now holds a position in government.
“Difficult cases make bad law.” Louis Brandeis, 1856-1941. US Jurist.
Saraki’s case with the CCT represents the sort of cases which are maddeningly frustrating. The Code of Conduct Bureau, CCB, had charged the Senate President with various violations of Assets Declaration Act. The case started shortly after Saraki emerged as Senate President against the wishes of the party leaders. The alleged violations were committed long before Saraki became Senate President and were not prosecuted by the CCB. That is a fact – which points to malice. But, that fact need not delay us here.
After a long and exhausting legal battle, reaching all the way to the Supreme Court and back to the CCT, Saraki faced trial on a case which the Federal Government and its agencies as well as sympathizers in the media had given wide media publicity. Calls had been made for Saraki to step down as Senate President based on the allegations by several people. Sagay was prominent among them. In other words, a man, never mind that he is Senate President, is asked to step down based on allegations alone. But, we operate a legal system which presumes a man innocent until proved guilty by a competent court. Sagay and other Senior Advocates of Nigeria, SAN, who wanted to impose this brand of jungle justice knew that from their first day reading Law at 100 level. Has he ever asked the Chairman, Managing Director, Executive Director of a company, the Managing Partner of a professional firm, the VC of a University, the World Wide Overseer of a religious organization, accused of heinous crimes to step down even before the case is in court? It is doubtful. And, if he did, he would have been violating the basic principle of our legal system which protects a person presumed to be innocent from punishment – including the mental torture of being portrayed as a criminal by self-righteous regular commentators.
Saraki was innocent under our laws even when he was being hounded as if he was a confirmed criminal. So, why should an innocent man step down from his post – just because his political adversaries coveted the position and wanted it through means fair or foul? At long last, the case went through trial – during which nobody questioned the integrity of the Justices. The prosecution presented its case – which instantly went viral on social media. Hysterical individuals commenting on the media leaks by government’s lawyers, and armed chair judges, including SANs, passed their judgment based on the evidence presented by the prosecutor. The principle of waiting to hear from the other side was ignored, each and every time by people imbued with jungle justice mentality. While that was excusable for those not versed in law, nothing could excuse that attitude by SANs and professors of law.
Among the things such legal luminaries are supposed to know is the fact that there are procedures to be followed in cases involving crime and for which a person could lose his freedom if convicted. Basic among the procedures was the requirement that the accused brought before a court must have been asked to make a statement once he was under investigation for crime(s) alleged to have been committed. This rule was not made by the Code of Conduct Tribunal, CCT, which had become the target of unfair vicious attack by Sagay and others. It certainly was not introduced after Saraki was arraigned. It was in force for ages. Failure to take this preliminary step had always created a possibility of no case submission. Perhaps, Sagay will explain why the prosecutor failed to adhere to the laid down procedures – virtually inviting acquittal from the start. That, to me, amounts to asking the CCT to ignore a point of law (corruption of process) just because it stood in the way of obtaining a desired judgment.
Furthermore, investigation of crime can only be undertaken by institutions appointed under the law to do so and their findings must be brought under the auspices of their units – Police, EFCC, DSS, Customs, NIA etc. The prosecution relied on the evidence of a person who represented none of these and who did not participate in the investigations. Although Sagay is known mainly as an academic lawyer and has no great track record as a trial lawyer, his outrage directed at the CCT and Saraki’s lawyers are tainted with mischief. Would he advise the CCT to admit the evidence of someone who represents none of the agencies authorized by law to conduct investigation (corruption of process again) or is he saying that the lawyers for the accused should put their client on the witness stand and risk self-indictment? Would he have accepted that from his lawyers if he was the defendant?
That brings us to another basic principle of our laws. It is the duty of the prosecution to prove its case after adhering to all the established procedures. It is not the duty of the defendant to prove his innocence. Among the elements of law available to the accused are what we all call technicalities. They were there long before Saraki was born; and they will be there almost for ever. Sagay and those railing against the judgment based on technicalities are the ones who are being insincere. Bola Tinubu was charged before the same CCT in 2011 and was discharged based on technicalities. Some media commentators in a national newspaper have conveniently for gotten that as they carpet the CCT now. Hypocrites. Yet, there is none of us, if facing a jail term and loss of job, who will not willingly escape on technicalities. So, what is Sagay’s grouse with technicalities? He knows what to do if he disapproves of them instead of complaining that somebody used them. They are there to be used.
Finally, when the Economic and Financial Crimes Commission, EFCC, charged Chief Mike Ezekhome, SAN, to court for money-laundering after “discovering” N70 million paid into his account by Governor Fayose, one expected Sagay to immediately spot the incompetence and malice of the EFCC in that case. Money-laundering is a two-part case. The accused must first be charged with obtaining the funds illegally before he can be accused of laundering it. In 2006-7, the Senate ad hoc Committee investigating the Petroleum Development Trust Fund revealed that Obasanjo paid N300 million to a law firm to register a company – galaxy Backbone. The EFCC did not investigate and had no reason to do. The money in the firm’s account was not stolen; so could not be laundered. EFCC lost the case against Ezekhome; Sagay lost his voice. He could not even condemn the EFCC for putting an innocent man through the horrors of trial and negative pre-trial publicity.