A former President of the Niigerian Bar Association, (NBA) Mr. Joseph Daudu (SAN), in this interview bares his mind on the Federal Government’s anti-corruption fight and also expressed reservations with some of the provisions of the Administration of Criminal Justice Act, KUNLE OLASANMI brings the excerpts..
What informed your decision to start a seminar to review decision of the Supreme Court?
We started this seminar because the topic of the seminar is rooted in strict legal issues which affects the contributions of both the Bar and the Bench and public institutions that have to deal with the administration of criminal justice. We felt instead of using the Rule of Law Development Foundation, the office should call our colleagues both from the Bar and the Bench and other institutions and brainstorm on this issue. And judging from the success it will appear that it will be a more frequent exercise.
What is your position on Sections 306 and 364 of the ACJA and the 1999 Constitution as amended?
Our position is that the Supreme Court may in due course be called upon to review its position in Olisa Metuh’s case, because we are seeing the effect of not staying proceedings interlocutory appeals. We would have had no problem, if instead of hearing the motion for stay of proceedings, it dealt with the substantive appeal on no-case-submission and sent him back to court, if he was overruled. However, the fact that courts jettisoned their power willingly which has been given by the constitution to be able to stay proceedings in deserving cases, the fact that they do so embolden trial courts to think that they can no longer be corrected by the corrective powers of the appellate courts, and because of the fact that the maturity in trial courts may not be as high as the maturity in the Appeal Court and the Supreme Court due to long association with the law, you would find that injustice may be perpetrated in cases where the people have nothing to do with corruption or other similar issues. Hence it is not a one cap fits all. It’s really something that the courts should go back to their original position where a stay of proceedings is a matter of discretion, and because it is a matter of discretion, no one case is similar to the other and no one is authority on the other. If the legislature says you cannot bring a stay of proceedings, what it is saying is that every case is similar and therefore it is a blanket ban. But the judges themselves have recognised for over 300 years that in matters of discretion no one case is similar to the other, no one case is precedent. So, on the strength of this reasoning alone, very respectfully the Supreme Court is wrong.
In your view, what are some of the negative effects of not staying proceedings in criminal matters when there is an interlocutory appeal?
It is only one. It is that the horse would have bolted the stable by the time the Supreme Court realises that the trial ought not to have continued. Take for instance, we are in an era where a lot of political witch-hunting in the name of criminal trials; people have been walking free for the past three years, merely because they announced intention to vie for a particular office, they are bundled and charged to court. Now, if you do bring an application in the circumstances to say that the charges are baseless and should be quashed, invariably the proof of evidence does not support the allegations that are being made, because it is extremely difficult to pinpoint a Chief Executive of a state with any corrupt practices because he doesn’t physically touch money. He gives instructions, things are carried out. So, if you say he’s money laundering, you won’t find any money in his account, and those are vital ingredients. So, if you bring an application to say that the charges should be quashed, the Administration of Criminal Justice Act, 2015, already tells you that, ‘no, judgment will be given on that application under Section 396 at the end of the proceedings. These are things put in that act to defeat the rights of the defendant, and that is the same thing with Section 306.
The similarity between Sections 396 and 306 are that they are all matters that come under the inherent powers of the court which are guaranteed by Section 6 (6) A and B of the 1999 Constitution as amended. So, when you have a situation where a lesser law is super-imposing itself on the grundnorm, that is, the constitution, that is an intolerable situation. And the judiciary should not be the mouthpiece of the executive in the anti-corruption fight. The judiciary should defend everybody; the defendant, the people accused 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 and to reaffirm to him that we are with you in your anti-corruption fight, disqualifies a lot of the courts from hearing corruption cases.
Nigerians and the government have become emotional over corruption matters, aren’t there things that can be done constitutionally and statutorily to help the emotional state of Nigerians who want to fight graft?
You see, do not misunderstand me. I am an advocate of an anti-corruption regime. We do not like the fact that our whole system, our reputation internationally and locally is riddled with defamatory comments on good Nigerians who may not have participated in corruption. So, we want a government and I support President Buhari in at least talking about corruption. Where I part company with him is when it is used to witch-hunt political opponents. When you put people in incarceration and the court says, ‘release them on bail,’ and they are there for three years and you do nothing about it. When election is coming, 450 people are charged; people who want to pick up tickets. It should not come to you as a matter of surprise that some people will be in prison and they will go and attend their swearing-in and acquire immunity from that point. That would happen, that would be a slap on the whole anti-corruption process.
We want an anti-corruption fight that does not have corruption embedded in itself. Because when we talk now, they say, ‘corruption is fighting back.’ But where do you draw the line? But they don’t say corruption is fighting when you defend murder cases, they don’t say corruption is fighting back when you defend Customs cases; it’s only when the issue of political interest comes in. The social media which is heavily manipulated comes into the picture to support government because that is the new type of thing.
So, to answer your question briefly, I will support a genuine fight against corruption and the people of Nigeria will support that, because when you do that you would see roads, you would have power, water, you would have education and have all sorts of good things which are not lying dormant in the bank accounts of the privileged. One thing that intrigues me is that if you have been corruption of people between 1999 and 2015, have been accused of being corrupt, and most of them are being charged to court, what is happening between 2015 and now where people are in power we have not seen any difference, it’s going worse and nobody is being charged for corruption.
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