Mr Joseph Daudu, SAN, is a former President of the Nigerian Bar Association, NBA. Daudu is noted for his no-nonsense issues and speaks his mind on issues not minding whose ox is gored. In this interview, he posits that those castigating the Supreme Court over Senator Bukola Saraki’s asset declaration matter were trying to intimidate the apex court, a development he noted should not be encouraged for the better functioning of the society.
He also faulted the haste with which the Attorney General of the Federation, AGF, gave directive to the Independent National Electoral Commission, INEC, in the inconclusive Kogi poll, according to him, compromising the independence of the electoral body. He also spoke on other issues. Excerpt:
By Innocent Anaba
WHAT is your assessment of the performance of the election tribunals so far?
NBA President Joseph Daudu
Mr. Joseph Daudu, SAN
By and large, the primary tribunals’ i. e those ones that have adjudicated over disputes at Governorship and Legislative Houses level should by now have concluded their assignments arising from the April general elections. I did not participate in election petitions at trial levels in this current dispensation. Consequently, my assessment is based on rulings and judgments that I have read and war stories from learned friends that took active part in the process.
Substantial volume
The result or assessment is not encouraging as (i) a substantial volume of the decisions were strange and not in line with electoral jurisprudence as we know it to be, suggesting that there was extra-ordinary recourse to technicality; (b) there is a lot of hue and cry that corruption played a great role in the outcome of the judgments.
Whatever may have happened; we are waiting with baited breath for the decision of the appellate courts, which we hope will right the wrongs alleged against the trial tribunal. In light of these expressions of dissatisfaction commencing with how the Tribunals were constituted by the President of the Court of Appeal, to frequent alleged unjustifiable disbandment of Tribunals, unprecedented judgments and allegations of corruption, it is necessary to identify a forum where those complaints can be submitted to, investigated and solutions and remedies proffered.
Does an appeal filed at the appellate court serve as a stay of proceedings at the lower court?
Ordinarily the answer is “No” but there are some statutes i. e penal legislations that statutorily provide that an appeal operates as a stay of execution or proceedings. This is so because a person sentenced to death does not need to file an application for stay before the processes for execution are stayed. Apart from these specific situations, a notice of appeal does not eo ipso operate as a stay of proceedings or execution of a judgment.
What is your reaction to the Supreme Court decision staying the trial of the Senate President, Bukola Saraki, before the Code of Conduct Tribunal over allegation of false declaration of assets more so as the Administration of Criminal Justice Act states that no court can stop or stay criminal trial at the Tribunal?
Before answering this question, I must enter a caveat that I am lead Counsel in the matter. In answer to your question, the provision of the law is quite easy to understand and interpret. Section 306 of the ACJA, which you referred to provides; “An application for stay of proceedings in respect of a criminal matter before the court shall not be entertained.” The “Court” in issue is the Code of Conduct Tribunal.
That is the only court that perhaps cannot stay its own proceedings in the event of an appeal against its decision. This provision does not apply to appellate courts such as the Court of Appeal and Supreme Court to which appeals lie from the CCT.
It is only applicable to the trial court. The rationale is simple. This is because appeals to the Court of Appeal and Supreme Court are creatures of the Constitution. The right of appeal in the circumstances being a constitutional right cannot take a back seat or be rendered ineffectual by a subordinate legislation like the Administration of Criminal Justice Act.
It ought be noted that courts do not act in vain, consequently, where the issue of jurisdiction is the substratum or basis of an interlocutory appeal and the appeal is on-going, it will amount to a travesty of justice for the court whose jurisdiction is being challenged, to continue unperturbed with its activities or purported trial at the same time or concurrently with the appeal.
Political witchhunt
What will happen if the appeal on jurisdiction is upheld and the trial had gone on to cause irreparable harm to the Defendant and indeed to the entire judicial system? It must be understood that rights in the criminal justice system are not created to inure in favour of the State or Prosecution alone.
Rights are created to ensure that a defendant is not made to go through a needless political witch-hunt by politicians who think that our courts are there to be manipulated for their own political benefits or profit.
Jurisprudence has consistently stated that an unjust trial ought to be quickly shut down as it does not add value to any system to be associated with political vendetta in the name of a criminal trial.
The focus by our leaders should not be on playing to the political gallery but to genuine justice sector reforms.
It does not profit any one for new comers to governance having taken over the reins of power to commence by condemning everything that have been achieved in the past 50 years.
Some lawyers have argued that the Supreme Court violated an Act of National Assembly by staying Saraki’s prosecution. Do you agree, if not why?
I do not agree for the reasons stated above. Whilst the right to expression is guaranteed by the 1999 Constitution, these rights like every other human right have its limitations and exceptions. There is one flaw in our legal system and this is that lawyers do not specialize in different branches of the law.
It is unseemly for lawyers who rely on their 200 level recollection of criminal law and procedure to seek to make informed commentary on serious legal issues taking place at a serious forum such as the Supreme Court.
Seriousforum
The worst category of critics are those lawyers who are in reality politicians or direct agents and associates of politicians, who criticize the system merely as a matter of political expediency and nothing else.
You issued a statement last week warning lawyers that they risk Contempt of Court by their criticism of the Supreme Court for staying the Saraki trial. Are you forgetting that such persons enjoy liberty of freedom of speech, more so when they argue that their comments are predicated on what the law says about staying of criminal proceedings at the Code of Conduct Tribunal?
Those that I addressed as possible candidates for contempt of court know that I did not have in mind their exercise of the right to free speech or right to critic the judgment of a court. What they were doing by accusing the Supreme Court of “illegality” and other mundane epithets in such an aggressive manner was to seek to intimidate the Court, pitch it against skewed or manipulated public opinion and thereby prejudice the final outcome of the appeal.
Certainly, we will not sit idly by and watch such an exalted institution in this country be taken to the cleaners, merely because the Court and its Justices have a tradition rooted in dignity and perseverance of not responding to taunts and insults. The pattern was clear to me that there was a campaign of calumny designed by the formentors to cause the Supreme Court to tow their own line.
Final decisionof the court
Happily, the Supreme Court cannot be and should not be intimidated. But as I said we cannot take the risk and remain silent while efforts are being made to prejudice the final decision of the court.
Is the Administration of Criminal Justice Act consistent with the rules of fair hearing and natural justice if it purports to oust from an appellate the power to stay trial at the Code of Conduct Tribunal.
Since even if the tribunal overrules a defendant on such issues such as jurisdiction and others, the trial will continue even though the defendant has a right of appeal to the appellate courts?
Where a criminal court lacks jurisdiction, it is not conducting a trial, what it is engaged in is a sham and a mockery of the whole system. A criminal trial is not conducted as if it is a football match which is for the benefit and satisfaction of the audience. It is a very serious business, where the reputation and livelihood of persons are at risk and jeopardy. Consequently, a trial without jurisdiction is a nullity and a no-show.
That is why, when there is a strong appeal challenging the jurisdiction of the court, the inferior tribunal that is conducting such a void trial is expected under the extant law to stay proceedings until the superior appellate courts have rendered their decision on jurisdiction.
What is your assessment of President Muhammadu Buhari’s anti-corruption war so far?
It is still too early to make a pronouncement one way or the other. But it must be stated that the fight against corruption in today’s Nigeria is a battle that must be engaged in without compromise.
Fightingcorruption
In fighting corruption, there must be due regard and scrupulous observance for due process and the Rule of law. The fight against corruption if engaged outside the bounds of due process and constitutionality will fail.
Some have argued that the anti-corruption war is one sided and in most cases against perceived enemies of the government?
It appears so.
President Buhari inaugurated his cabinet about six months after being sworn in. Is the delay justified?
In all sincerity, only the President will be able to answer the question. But one point which the President, no doubt succeeded in making is that he probably does not need ministers to administer the country. These ministers are therefore just settling down. In the fullness of time, we shall be in a position to answer the question.
What is your reaction to the Ministers that were assigned portfolios? It appears that some have far more work that others, is that fair?
This question with respect does not arise at this point in time. The buck stops on the President’s table. He will be in a position to assess his ministers in due course.
Some rights activists are expressing worries over what they allege is the gradual return to impunity by security agencies, particularly the Department of State Security, DSS, which still holds on to accused persons, even when they have been granted bail by a court of law or which refuses to produce such accused persons in court, even when ordered to do so by the court?
Again, I must be cautious in answering this part of the interview for obvious reasons including fact that they are live issues and my comments could be interpreted as an attempt to prejudice the Courts. Our Judiciary has in the past survived the worst forms of tyranny and abuse of due process and the rule of law by way of ouster clauses, disobedience of court orders, shift or inversion of the presumption of innocence etc under military rule and we survived. We will overcome this episode too. The only regret is that history has not taught us any lessons.
Was the Attorney-General of the Federation right in dictating a solution to INEC on the aftermath of the death of Prince Abubakar Audu the late APC governorship candidate?
I do not want to be involved in the correctness or otherwise of his solution to the apparent legal impasse that has occurred after the demise of the APC governorship candidate that was leading in the stalled elections being conducted by INEC.
Level ofresearch
That would be probably a matter that would be resolved by the courts and I do not or have not conducted the level of research that would make it easy to reach a tolerable legal conclusion. But one thing is apparent and it is that the Attorney-General of the Federation had no business speaking before or to INEC on the way forward in the matter.
The AGF is not Attorney General of the executive arm of the Government or Attorney General of the APC. He is Attorney General of the Federation and an experienced Attorney-General would not have intervened in the way and manner he did, which clearly eroded the much talked about independence of the electoral body.
The decision of INEC should have been left to INEC to determine in the spirit of its ‘independence’.
The AGF speaking on the issue before INEC, dealt a great blow to the perceived independence of INEC and the neutrality of the federal government in such matters.
Vanguard