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Nigerian Judiciary in Ethical Free Fall

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By Emmanuel Onwubiko
The Nigerian Judiciary over the last few years have come under considerable focus in matters of corrupt enrichment by some judges who ordinarily ought to serve as unbiased and impartial arbiters and ministers in the temple of justice but who ironically have now soiled their hands with filthy lucre thrown at them by corrupt and greedy politicians facing prosecution for series of spectacular corrupt practices while in government public

offices.
In the current political dispensation however, the allegations of corrupt enrichment by judges of the various courts of law all across Nigeria have assumed disturbing trend even as the law enforcement agencies such as the Economic and Financial Crimes Commission and the Independent Corrupt practices and other offences commission that have of late become notorious for looking the other way while politicians and high profile officials of the executive, legislative and judicial arms of government embarks on an unrelenting bonanza of massive theft of government funds in their custody, have been jolted from their operational slumber even as one of them the Economic and financial Crimes Commission recently raised alarm that seven judges of the Federal High Courts all across Nigeria have become persons of interests because of some huge deposits located in their individual bank accounts suspected to be bribe money from corrupt litigants.

These seven judges that have yet to be named by the EFCC are alleged to have acquired massive choice estate  and huge financial assets from suspicious transactions related to their handling of high profile political cases just as these and many other judges of the various divisions of the Nigerian court system are suspected to have amassed huge financial resources in their off shore accounts. It is public knowledge that in these days many judges and justices of the higher courts of record have retired into life of opulence and obscene wealth which are questionable going by their legitimate earnings throughout their professional careers and in Nigeria people just wake up on the right side of their beds and secure contracts from friends and their relations in government offices and become very rich without any institution questioning how they amass such crazy wealth. Judges have joined this bandwagon and the result is that if poor litigants approach them for redress such cases get adjourned for so long just as the rich litigants get their cases disposed off on time and in accordance with their whims and caprices.

In the last few days however, the image of the Nigerian judiciary further nosedived going by the widely condemned decisions the Abuja High Court and the Supreme Court reached on two different corruption related cases involving high net individuals one of which is the chieftain of the ruling national party the Peoples Democratic Party retired Naval chief Bode George and also the former minister of the Federal Capital territory Malam Nassir ElRuffai who was cleared of alleged corrupt abuse of power while he held forth as the minister whereupon he was accused of illegally cornering public landed assets to his family embers. Nigerians raised concern because all across this same country most poor crime suspects taken to courts for less offences bordering on theft of even bread have been sentenced to serious prison terms whereas the rich also get the kind of soft landing their money can buy them.

Of these two celebrated verdicts that were given last week, that of the Supreme Court came as a rude shock to most people because the impression it created is that provided any one charged before the court of law has enough financial muscle to hire some of the most expensive lawyers, he will certainly be set free from allegations of mindless theft of public fund either by the court of first or last instance.  There have been allegations that most senior lawyers now build in into their professional fees huge financial bills from their clients as 'bribe/settlement' pay off for judges handling their cases. I have heard on good authorities that most Judges especially in Abuja are now in an open contest among themselves on who will build the choicest estate from alleged bribe money from corrupt politicians willing to pay.

The Supreme Court and the Abuja High court's verdicts given last week which exonerated two powerful and rich politicians have demonstrated that justice is for sale to the highest bidder not necessarily through bribing the judges but through choreographed manipulation of the court system and setting up some technical loopholes through which the highly suspicious Nigerian judicial officers can hide to perpetrate any illegality in the name of technicality thereby denying the nation of substantial justice.

The nation's highest court said Bode George was wrongly charged with an offence that was never an offence but the question been asked by Nigerians is what happens to the groundswell of allegations that contracts were split and probably awarded to unqualified persons meaning that Nigeria may have lost huge resources through this process or is the Supreme Court saying that money was not stolen or diverted? .

The Supreme Court last weekend in setting aside the conviction of former Chairman, Board of Directors of the Nigerian Ports Authority (NPA) Olabode George and five former members of the board, subsequently quashed their conviction, discharged and acquitted them on charges of contract splitting and fraud.

At the Lagos High Court, George, Architect Aminu Dabo, Captain Oluwasegun Abidoye, Alhaji Abdulahi Aminu Tafida, Alhaji Zanna Maidaribe and Engineer Sule Aliyu were on October 26, 2009 convicted and sentenced to 30 months imprisonment by Justice Olubunmi Oyewole of the Lagos High Court, Ikeja.

They were tried and convicted under Sections 104, 203 and 517 of the Criminal Code Laws of Lagos State 2003 for offences relating to abuse of office, disobedience to lawful order issued by constituted authority and conspiracy to commit offence. These laws were validly passed as such in Lagos criminal jurisdiction within which the public institution whereby these persons served is located so why is the Supreme court coming up with this grotesque explanation? These laws quoted in this paragraph were they manufactured by the prosecution counsels and/or the Lagos High Court judge who sentenced these persons that were charged before him?  Sadly, since the Supreme Court is the highest court of law in the land, these basic questions will not be answered but credibility question will remain indelible against the Supreme Court of Nigeria.

Specifically, George and others were in all reportedly, alleged by the prosecution to have exceeded the limit set to their authority to award contracts and contrived to bring the contracts within their limits by splitting them, while also inflating their prices, in the charge brought against them by the Economic and Financial Crimes Commission (EFCC).

But at the Supreme Court, the  five-man panel, who heard the six separate appeals filed by the appellants, were unanimous in deciding that George and others were unjustly subjected to trial and conviction which they have already served at the Kirikiri maximum security prisons in Lagos and have since regained freedom.

The Supreme court which has come under increased scrutiny because of allegations of under the table dealings and bribery by some of the justices, however held in the six separate judgements delivered last weekend, that not only did the prosecution failed to establish the quilt of the appellants, the law under which the charges were brought were unconstitutional.

The court held that the offences for which the appellants were convicted were not known to law as at when the offences were said to have been committed. So are these charges manufactured at the notorious 'oluwole' market?  The question to be asked again is how do you explain this bizarre conclusion drawn by the Supreme Court? Is it that the team of prosecution counsels including the highly respected judge of the Lagos High Court who at a time was touted to be appointed as the Chief Judge of Osun state are not good enough to have known that the charges are not sustainable? Why for instance was this not in issue but only resurfaced as the bone of contention at the Supreme Court or are their certain information in that case that was hidden from the public eyes so as to justify the now highly discredited Supreme Court's decision? Again, why did the prosecution not frame better charges against these persons who were eventually convicted and indeed served terms in the prison?

For instance, media report stated that Justice John Afolabi Fabiyi, who read the lead judgment in appeal numbered: SC/180/2012 filed by George, observed that even when the prosecution's evidence showed that all the contracts awarded were “appraised by experts employed by the authority (NPA) and that the experts recommended the contractors to which the contracts were awarded, the prosecution led by Festus Keyamo failed to either call any of the experts as witness or prosecute them.

He held that the Federal Government's circular, which the appellants were accused of disobeying “stipulates that breach of same shall be met with disciplinary action. This may be in form of administrative action against an officer, who breaches the rules.”

Justice Fabiyi held that disobeying the directives in the circular marked exhibit P3 “is not made an offence by any Act of the National Assembly or law of a state House of Assembly or even the content of exhibit P3.”

He held that section 203 of the Criminal Code of Lagos State, on which some of the charges were brought was not in tune with the provision of section 36(12) of the Constitution.

“In view of the constitutional infraction, the entire trial, conviction and sentence of the appellant remain a nullity and must be set aside,” Justice Fabiyi said. The decision in George's appeal was applied to that of others except Tafida, who raised a separate constitutional issue in his appeal.

Justice Kumai Bayang Aka'ahs, who read the lead judgment in the appeal by Tafida, marked: SC/217/2012 also faulted the trial and conviction of the appellant.

“Contract splitting, which formed the basis of the offences charged, was unknown to law at the material time. The public procurement Act, which made contract splitting an offence punishable with term of imprisonment was enacted into law by the National Assembly in 2007 long after the appellant had ceased to be members of the NPA.

“The Act was not made to take retrospective effect. Even if this was the case, it would have been contrary to section 36(8) of the Constitution. Counts 59, 60, 64, 65 and 67 (of the charge) therefore constituted a gross violation of section 36(12) of the Constitution.

Justice Aka'ahs held that it was a duplicity of charge when the prosecution charged the appellant for abuse of office and at the same time accused him of disobedience of lawful order and also found him guilty of conspiracy to disobey lawful order, which all manifested in the splitting of the contracts.

“Sections 104 and 203 of the Criminal Code are at variance with section 36(12) of the Constitution. They are therefore unconstitutional and are declared null and void.

“The interpretation of a penal legislation or any statute for that matter should not be left to the whims and caprices of the judge called upon to interpret the legislation. Any conduct which carries a sanction of imprisonment must be expressly stated in written law and not left to conjecture or inference by the court,” Justice Aka'ahs held.

He consequently nullified the trial and conviction of the appellant. The judge also set aside his conviction, quashed his sentence and set him free. My other question to the Supreme court is that if a particular village head validly appointed by the state government issues a 'circular' saying that snatching of a neighbour's wife is punishable by two stroke of the cane it will stand even when the law in that state provides for harsher punishment when convicted by the competent court of law or is the court saying that administrative sanction is now better than legal sanction provided for by a law existing in a given state?

This decision of the Supreme Court has not been well received by the citizens of Nigeria who believe that technicality ought not to have taken the better side of the approach adopted by the Supreme Court justices but the substantial justice ought to have been followed which means that the Supreme court ought not to have provided the impression that the judiciary should close her eyes to grand scale allegations of theft provided the framing of the charges do not meet up with extant charges in the laws of the land. Nigerians want to know if what the supreme court is saying is that since the said offences were committed but the law book does not contain these same offences as genuine offences punishable under the federal law therefore the money allegedly stolen in the process of committing the said offences should rightly belong to the accused who have now been freed from any record of conviction for crime by the competent court of law?

The most bizarre of these judgements is that of the Abuja High court setting the former minister free even when findings appear to show that actually government landed assets belonging to the now defunct Nigerian Electricity Company was revoked and allegedly cornered by the minister. Going by what the National Assembly's probe panel told Nigerian, is the Abuja High Court now saying that the erstwhile Abuja minister did not abuse his official privilege to have allegedly awarded the land to his two year old daughter and is the Abuja high court now given the green light to the current Abuja minister to award landed assets belonging to the Nigerian government to even his unborn children? This ethical free fall of the Nigerian judiciary must be arrested quickly to avoid compelling Nigerians to stage popular revolution against these crimes against humanity by Nigerian politicians and their cronies in the Nigerian judicial system. Again that particular judge who issued the verdict must be scrutinized to ensure that he was not externally influenced to reach such an incredible decision that defies logic.

+  Emmanuel Onwubiko; Head; Human Rights Writers Association of Nigeria       blogs at http://www.huriwa.blogspot.com;www.huriwa.org/.