Legal pundits have
continued to express dismay over the recent Supreme Court’s acquittal
of a chieftain of the Peoples Democratic Party (PDP), Chief Bode George.
FEMI FALANA writes.
In criticising the lack of
commitment of the Goodluck Jonathan Administration to the
anti-corruption crusade commentators have often failed to pay sufficient
attention to the penchant of Nigerian courts to dismiss corruption
cases on the alter of technicalities. It is on record that many
corruption cases filed against members of the ruling class by the anti
graft agencies have been dismissed in the last few weeks on flimsy
grounds. On the contrary, the courts have had no difficulty in
convicting petty criminals and sentencing to long terms of imprisonment
for stealing telephone handsets, bush meat, tubers of yam etc on account
of poverty. In reviewing the anti corruption war therefore the class
character of the nation’s neo-colonial legal system should always be
taken into consideration.
Last month, the case
involving the missing hundreds of millions of naira from the Universal
Basic Education Fund was struck out by the Federal High Court. A
fortnight ago, the Lagos Division of the Court of Appeal struck out the
criminal case filed against some bank chiefs by the EFCC on the ground
that the Lagos State High Court lacks the jurisdiction to try them for
allegedly stealing billions of Naira through the manipulation of the
capital market. On December 13, 2013 the Federal Capital Territory High
Court struck out the charge of stealing land filed by the EFCC against
Mr. Nasir El-Rufai when it upheld his no case submission while the
Supreme Court discharged and acquitted Chief Olabode George and other
former members of the Nigeria Ports Authority on the ground that the
offence of contract splitting was unknown to law at the material time.
This review is limited to
the case of Chief Olabode George & co. for two reasons. Firstly, the
EFCC has decided to challenge the other cases at the appellate courts.
Secondly, the verdict of the Supreme Court has serious implications for
the nation’s criminal law jurisprudence. More so, that the finding of
the apex court that the appellants were tried and convicted for
contract splitting is not borne out of the records of the trial court
and the Court of Appeal. In other words, the Lagos High Court had
convicted them of the offences of abuse of powers and disobedience of
lawful order contrary to sections 104 and 203 of the Lagos State
Criminal Code. However, while congratulating the appellants for removing
the stigma of infamy from their names it cannot be denied that the
outcome of the case has serious implications for the anti corruption
crusade.
How The Supreme Court Erred
Before one is accused of
committing contempt of court for commenting on the controversial
judgment it is pertinent to point out that the right to criticize the
judgments of courts is part of the fundamental right of every citizen to
freedom of expression guaranteed by section 39 of the Constitution.
Accordingly, the Supreme Court has always welcomed a constructive
critique of its decisions having regard their finality and their overall
impact on the nation’s legal system. In Adegoke Motors v Adesanya
(1989) 3 N.W.L.R. (Pt 109) 250 at 274-275, the reverred Chukwudifu Oputa
J.S.C alluded to the finality of the decisions of the Supreme Court
when he said that “we are final not because we are infallible, rather
we are infallible because we are final. Justices of this Court are human
beings capable of erring. It will be shortsighted arrogance not to
accept this obvious truth”.
In the same vein, the late
Justice Kayode Eso said in the case of Adigun v Governor of Oyo State
(No 2) 2 N.W.R (Pt 56) 197 at 214-215 that “the decision of the Supreme
Court is final. Final in the sense of real finality in so far as the
particular case before it is concerned. It is final forever, except
there is legislation to the contrary, and it has to be a legislation ad
hominem”. In recognition of the enormous powers of the apex court
Justice Eso was of the view that “It is such dread powers that must
necessitate great care in the calibre of the Court and such dread that
must necessitate pungent and constructive analytical criticism of every
judgment of the Court in the law journals and similar fora”. In
reaction to the view of some judges and lawyers that it is contemptuous
to subject decisions of courts to criticism Justice Eso stated that “the
judgment of a court should not be treated with sacred sanctity, once it
gets to the right critical forum”.
In the case of Chief Bode
George & co. the appellants were tried, convicted and sentenced to
various prison terms by the Lagos High Court on October 26, 2009 for
abuse of powers and disobedience of lawful orders. Completely displeased
with the verdict the appellants challenged it on appeal. In its
considered judgment delivered on January 21, 2011 the Court of Appeal
affirmed the judgment of the learned trial judge, Olubunmi Oyewole J.
Still dissatisfied the appellants further appealed to the Supreme Court.
In its judgment handed down a fortnight ago the Supreme Court set aside
the concurrent findings of both the Lagos High Court and the Court of
Appeal with respect to the conviction of the appellants.
In discharging and
acquitting them the apex court held that the offence of contract
splitting was unknown to law at the time the appellants were tried and
convicted by the Lagos High Court. In his leading judgment the
Honourable Justice John Afolabi Fabiyi held inter alia “It occurred to
me that section 203 of the Criminal Code is not in tune with the dictate
of section 36(12) of the 1999 Constitution. That being the position,
the charges filed under section 203 of the said Code ostensibly for
splitting contract in disobedience of lawful order by constituted
authority cannot stand…I say it with utmost confidence that the same
position applies to the provision of section 104 of the said Criminal
Code. Acts said to have constituted arbitrary acts resulting in abuse of
office are splitting of contracts which were not offences known to law
at the material time.”
It is submitted, without
any fear of contradiction, that the appellants were not charged for
contract splitting by the Economic and Financial Commission but for
“abuse of powers” and “disobedience to lawful order” contrary to
sections 104 and 203 of the Criminal Code of Lagos State respectively.
Since both sections have been part of the Criminal Code as far back as
1914 it is unbelievable that the Supreme Court held that the appellants
were charged under an unknown law. The crime of disobedience to lawful
order by splitting contracts was not unknown before the enactment of the
Public Procurement Act, 2007. In this case, contract splitting was a
particular of the offence and not the offence alleged against the
appellants. But for some inexplicable reasons, the apex court
substituted the particular for the offence and arrived at a wrong
conclusion. The Court of Appeal had rightly held that the appellants
violated sections 104 and 203 of the Criminal Code when they awarded
contracts beyond their approval limits which was “borne out by evidence
from all the witnesses on both sides”.
The most curious aspect of
the case was that the Supreme Court annulled two provisions of the
Criminal Code of Lagos without hearing from the Attorney-General of
Lagos State in line with established practice. With profound respect to
their Lordships there is no legal justification for declaring sections
104 and 203 of the Criminal Code illegal and unconstitutional. No doubt,
the attention of the apex court was not drawn to the undeniable fact
that section 104 of the Criminal Code is in pari materia with section 9
of the Code of Conduct for Public Officers set out in Part 1 of the
Fifth Schedule to the Constitution which has created the offence of
abuse of power. Therefore, section 104 of the Criminal Code cannot be
said to be unconstitutional since the same Constitution has created the
offence of “abuse of powers”.
Conclusion
As the verdict of the apex
court was based on wrong legal foundation its validity remains
questionable. Although the appellants have been exculpated it is hoped
that the Supreme Court will soon have another opportunity to reverse the
highly erroneous judgment so as to restore sections 104 and 203 of the
Lagos State Criminal Code which were struck down for no justifiable
legal reasons. The case of Chief Bode George & co. should not be
treated in isolation as the decision of the Supreme Court is an
expression of class solidarity. Perhaps, majority of Nigerians are not
aware of the fact that out of the over 400 convictions which the EFCC
has secured in the 10 years of its existence only four members of the
political class have been successfully prosecuted through dubious plea
bargain deals. Therefore, instead of wasting the meagre resources
allocated to the anti graft agencies on securing convictions which are
going to be set aside in favour of members of the ruling class it is
high time the Federal Government stopped harassing petty criminals who
are usually railroaded to jail by Nigerian courts.
Falana is a Senior Advocate of Nigeria
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