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Is there a war against corruption? (3)

By Awa Kalu, SAN

In the previous installments of this article, we gave a background of what brought about the renewed war against corruption. We raised a few eyebrows on how the war has been prosecuted, and we made a comment or two about the continued detention of Col. Sambo Dasuki (retd), erstwhile, National Security Adviser, as well as a good number of other detainees. We dilated on the ongoing and current travails of the Senate President, Bukola Saraki, whose foray into the corridors mapped by the war against corruption, has unquestionably hampered the relationship between the legislative branch and the executive branch at the national level.

•Kalu, SAN

Lest we forget, the friction between the Legislature and the Executive at federal level has not been occasioned by Senator Saraki’s woes alone. The discerning reader may ask, what of Senator Dino Melaye? Let it be recalled that Senator Dino Melaye has also been harassed by law enforcement agencies, for reasons that have since been obscured by the drama often accompanying his arrest, detention, arraignment and so on.

The pedestrian may wonder why Senator Melaye has been dragged into the consciousness of many Nigerians. Time will tell.

On the other hand, the admirers of the weapons deployed in favour of the war on corruption were grateful when, on May 30, 2018, Rev Jolly T. Nyame, was jailed for several years on a charge which indicted him for receiving gratification, obtaining public funds without due consideration and for criminal breach of trust.

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A couple of weeks after, Rev. Nyame’s judge, the Justice Adebukola Banjoko of the High Court of the Federal Capital Territory Abuja, sentenced the former Plateau State Governor, Senator Joshua Dariye to another long term of imprisonment after he was found guilty of criminal breach of trust and diversion of an amount in excess of a billion naira from the ecological funds of Plateau State. It was a major triumph for the war against corruption, for which some public affairs analysts, lampooned Rev. Jolly Nyame as “a man of God who toyed with public funds.”

Quite recently, the political heat which had risen by several centigrades was further turned up when from the blues (at least in the minds of the public), a charge was filed at the Code of Conduct Tribunal, CCT, against the occupant of the highest Judicial office in the land-. Justice W. S. N. Onnoghen. The charge, which is still pending at the Code of Conduct Tribunal alleges that the learned Chief Justice failed to declare his assets, not before assuming office as a Judge of the High court or before discharging the functions of his office as such Judge; not before assuming office as a justice of the Court of Appeal; nor before discharging the functions of the office of a Justice of the Court of Appeal; not before assuming office as a Justice of the Supreme Court, nor before discharging his functions as a Justice of the Supreme Court; and certainly, not before assuming the functions of his office as the Chief Justice of Nigeria, nor discharging the functions of his office as the Justice in that capacity.

This observation is interesting, having regard to the provisions of section 290(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). That section provides that a person affected by that section”…shall not begin to perform the functions of that office until he has declared his assets and liabilities as prescribed under this Constitution, and has subsequently taken and subscribed the oath of allegiance and the judicial oath prescribed in the 7th schedule to this Constitution.”

Essentially, what the Constitution forbids, is functioning in a judicial capacity without declaration of assets, taking and subscribing the oath of allegiance, and the judicial oath.

All the offences stipulated in the Code of Conduct Bureau and Tribunal Act, are to be tested under the canopy of section 290 of the Constitution in a general sense.

The specific offences contained in the charge filed against the Justice Onnoghen, the Chief Justice of Nigeria, are not within the purview of this article, in order to avoid exacerbating the unrestrained trial in the press, arising from the war against corruption. By the way, nobody, except a person put on trial, can estimate or quantify the damage done to the criminal justice system, especially the presumption of innocence, and the privilege against self-incrimination which constitutionally inure for the benefit of each person charged with a crime.

Trial in the media may put the courts under pressure and may also put an accused person under pressure, and may either force a person under trial or the Judge before whom he is being tried, to make a mistake, either of law or of facts, and or force a compromise.

This writer, being of the conservative ilk, has never been in favour of gathering a lynch mob (which can be done by media trial or creating false impressions in the minds of persons not attuned to the workings of the criminal justice system).

Any defendant, in our view, who takes advantage of the law either procedurally or substantively, cannot be accused of impertinence, but in the prosecution of the war against corruption, it does seem rather incongruous that the public is impatient when a defendant seeks to take advantage of even provisions of the Constitution stipulated for the purpose of avoiding a miscarriage of justice.

It appears to us to be unfair when it is thought that a person charged with an offence alleging corruption, is not entitled to be defended by counsel.

How for instance, can the Constitution provide that a person charged with a crime should be allowed adequate time and facilities for his Defence, but the Administration of Criminal Justice Act 2015 directs a judge to hold the trial from day to day? Can it for instance, be within the contemplation of the Administration of Criminal Justice Act, that any court can sit from day to day even when the defendant is ill or the court itself is incapacitated for one reason or the other, especially for lack of power in the court room, lack of ventilation or absence of other critical infrastructure, such as verbatim recording? What if in the course of a trial a defendant requires the services of an interpreter but the interpreter is not available, et cetera?

The pressure brought on the criminal justice system by improper application of the Administration of Criminal Justice Act, has on some occasions induced some judges to order defendants who claim to be ill, to be brought to court on stretchers for the purpose of taking their trial. It must be emphasized that illness is part of the experience of mankind, which cannot be wished away on the altar of speedy trial.

For the avoidance of doubt, the late Socrates of the Supreme Court, Justice Chukwudifu Akunna Oputa, counselled that justice is not only for the state, but also for the public, as well as for the defendant in a criminal trial. An inevitable corollary, of this wise counsel, is that when the Criminal Justice System is wittingly or unwittingly railroaded into a system of justice only for the State, doom may be the long-term result.

This interrogation of the dimensions of our criminal justice system, will continue in the next instalment.

 


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