It has taken 12 years to conclusively prosecute a simple case of stealing. This should make us ask WHY? In 2007, shortly after Orji Uzor Kalu had concluded his 8-year tenure as Abia state governor, the legal battle in this case began.
Our criminal justice system is apparently very slow in dispensing justice. Even though the EFCC’s poor investigative skills and politicization often contribute to this, the executive and legislative branches of government need to do something to amend the criminal code such that there will be zero room for unnecessary delays during a criminal prosecution.
On the 31st day of May 2007, barely 48 hours after leaving office as governor, Kalu secured an order from both the Umuahia High Court as well as the Abia State High Court restraining the EFCC from arresting or detaining him. The exact words of the court were “That the leave so granted shall operate as a stay of all actions or matters relating to or connected with the complaint hereof until the determination of the motion on Notice.” The complaint being referred to was the case which the EFCC had charged him for at the Federal High Court, Lagos.
This order was further relied on by Kalu before the trial Federal High Court and later the Court of Appeal to argue that he could no longer be prosecuted pending the hearing and determination of his motion on Notice. He also prayed the court to quash the charges against him on the ground that no prima facie case was disclosed in the entire proof of evidence.
In a nutshell, from the 31st of May, 2007, Kalu started a litany of legal battles in multiple courts, trying to stop his prosecution. He went from the High Courts to the Court of Appeal, and finally, on 18th March 2016, the Supreme Court gave a final ruling on the appeal filed by him to stop his prosecution.
The Supreme Court nullified his appeal against his prosecution at the Federal High Court, effectively giving the green light for the trial to go ahead in earnest. At this time, nine (9) whole years had been spent on needless legal foot-dragging occasioned by loopholes in our criminal justice system which allows these multiple needless appeals, or at least does not make them time-bound. For example, after Kalu’s counsel filed his brief in their appeal at the Supreme Court on the 12th of April, 2013 (according to court documents), it took the prosecuting counsel two (2) whole years to file a reply brief on the 12th of April, 2015. Two years wasted for nothing, while Abians waited for justice to be served.
In fact, in its 18th March 2016 judgment, the Supreme Court said “For a person to rush to court to place a clog or shield against criminal investigation and prosecution is a clear interference with the powers given by law and the constitution to EFCC in the conduct of criminal investigation and prosecution.
It is clearly an abuse of due process of the law.” Yet, to me, this abuse of the due process of law continued thereafter because, after that Supreme Court Judgment which cleared the way for his trial to proceed unhindered at the Federal High Court, it has taken 3years and 11months for the Federal High Court to conclude the prosecution of a simple case of stealing!
Even though the Goodluck Jonathan administration did something in this area by writing and getting the Administration of Criminal Justice Act passed by the then-National Assembly in order to introduce controls within our criminal justice system aimed at limiting the duration of cases in court, there is apparently so much more that needs to be done in that regard.
Having said these, something tells me that the prosecution of high-profile criminal cases in Nigeria has largely been politicized since 1999 to date. I feel that the dispensing of many of these cases are often used to serve political interests more than serving the cause of justice. This is one of the plausible reasons why there is often a lot of delay in concluding many of these cases.
Orji Uzor Kalu’s case was started in 2007. It has passed through the Yaradua, Jonathan and now the Buhari administrations over the span of 12 years. Within this period, Kalu was an active politician. Did politics play a role in this?
On the 31st of October, 2016, the EFCC brought amended charges against Kalu at the FHC Lagos following the earlier Supreme Court judgment in March 2016 giving them the leeway to do so. However, sometime later, the trial judge, Justice Mohammed Idris was elevated to the Court of Appeal alongside 11 others, but a special waiver was granted him to continue to preside over Kalu’s case.
During one of the adjournment dates in November 2018, Kalu was absent from court, and his counsel informed the court that he had travelled to Germany for medical purposes. The court was however displeased that the accused person left the country without first seeking and obtaining permission from the court, and consequently revoked his bail, and also ordered him to present himself to the EFCC upon return to the country. Among the general public, many people wondered why Kalu who was on bail at the time still had his travel documents in his possession instead of the same being in the court’s possession.
To make matters worse, when he finally returned to the country, rather than surrender himself to the EFCC in line with the court order, he was seen taking an active part in the presidential re-election campaign of the All Progressives Congress (APC), even as a member of its high-profile campaign council.
The funny thing was that at the resumed hearing in January, 2019, after that initial adjournment in November 2018, counsel to the EFCC, Mr. Rotimi Jacobs rightly pointed out to the court that Kalu who had returned to the country at the time had failed to present himself to the EFCC as earlier ordered by the court. But then, he urged the court to proceed with the business of the day and call the defense counsel to open its defense regardless of the accused person’s absence.
Many among the public wondered why Kalu was not arrested by the police upon his return to the country since his bail had already been revoked by the court. The police could have arrested him since he literally jumped bail by leaving the country and then handed him over to the EFCC. Also, EFCC could have arrested him after he did not present himself to them in line with the court order. But none of these happened.
However, Justice Idris said he could not continue with the case as the authorization he had to preside over the trial had expired. He explained that he received fresh fiats with respect to some other cases before him, but that the Kalu case was not one of them. He said, “I should not proceed further, otherwise, I will be acting without authority. So, in the circumstance, I am of the view that further proceedings shouldn’t go on until I receive further instructions”.
I think it is fair to ask who was giving Justice Idris these fiats and why. The answer to that will surely offer us some more insight into the behind-the-scene events that were occurring, especially whether or not Kalu’s political orientation or those of others around him played a role in his trial and to what extent they did, if they did.
While this court ruling sentencing him to prison should be applauded as a significant victory in the fight against corruption, I hope that Nigerians can also pause for a moment to ask why it took so long to get to this conviction.
Did the EFCC have no case from the beginning? Did they have a case but were stifled by the court and criminal justice systems? Were there external political (or other) influences on both the EFCC and the court system which caused the delay? Beyond the applause, I believe that these are pertinent questions that need to be asked by investigative journalists, and indeed all Nigerians in order to forge a better system going forward.
Chukwubuikem Paul Anunaso is a civil/structural engineer who is keen on good governance.