A clearly orchestrated tirade against the Supreme Court of Nigeria in respect of its acceptance of an undertaking by the counsel to the Respondent in the\u00a0Saraki\u00a0Appeal has come to my attention following two days of consistent bashing of the Court for daring to do the unthinkable by scuttling the politically motivated stampede to remove\u00a0Bukola\u00a0Saraki\u00a0from his position as Senate President through a wholly unconstitutional trial at the Code of Conduct Tribunal.<\/p>\n
Concerning my submission that the Code of\u00a0Conduct Tribunal\u2019s\u00a0trial of\u00a0Bukola\u00a0Saraki\u00a0is unconstitutional I will address that in another forum. For now I wish to respond to the clearly misconceived notion that the Administration of Criminal Justice Act can be used to oust the power of the courts to grant stay of proceedings in criminal trials.<\/p>\n
The issue as formulated by the leader of the charge goes as follows:<\/p>\n
\u201cIt is unfathomable that the Supreme Court decided to return the country to the status quo ante in a rather brazen and\u00a0bizzare\u00a0manner. Given the ouster clause contained in section 306 of the\u00a0AJCS(sic), the Code of Conduct Tribunal ought not to have delivered its ruling in respect of the preliminary objections filed by Dr.\u00a0Saraki\u201d<\/em><\/strong>\u2013Femi\u00a0Falana\u00a0(SAN)<\/p>\n Highly respected Professor\u00a0Itse\u00a0Sagay\u00a0(SAN) was also quoted by the media as having said that\u00a0\u201cThe new Administration of Criminal Justice Act has completely eliminated any application or grant of stay of actions or proceedings in criminal trials; it prohibits it. So, what the Supreme Court has done is illegal and it is shocking that the Supreme Court would indulge in illegalities\u201d.<\/em><\/strong><\/p>\n Both eminent lawyers are intolerably wrong and thus give the impression that their\u00a0per\u00a0incuriam<\/em><\/strong>\u00a0opinions could only have been motivated by prejudice and not by their well known life long struggle for the public good.<\/p>\n Indeed the manner in which their respected opinions have rabble-roused a surge of\u00a0public opinion against the\u00a0apex court in respect of an issue which is still sub-judice\u00a0smacks, in my humble opinion, of criminal\u00a0contempt.<\/p>\n It is in this context that I join issues with them on the matter as follows:<\/p>\n 1.1\u00a0Ayoola\u00a0JCA (as he then was) in NNPC V\u00a0Fawehinmi\u00a0[1998] 7NWLR (PART 559) 598 at 612E-H echoed an age old principle of separation of powers when he said\u00a0\u201cOther than in consonance with the constitution itself, legislative provisions which preclude the judiciary from exercising judicial powers violate the separation of powers principle enshrined in section 6 of the Constitution\u201d<\/em><\/strong><\/p>\n 1.2\u00a0Relying on the above\u00a0dictum \u00a0Omoleye\u00a0JCA in\u00a0Njikoye\u00a0V MTN [2008] 9 NWLR (part 1092) 339 at 369 F-H also stated that\u00a0\u201c..the\u00a0courts would disregard any statute that seeks to regulate and obliterate their judicial powers conferred on them by the express provisions of the Constitution, the supreme and\u00a0grund\u00a0norm\u00a0of Nigeria. \u2026..\u00a0An enactment will therefore be considered opposed to the constitutional provisions vesting judicial powers in a court if: it \u2026 purported to remove judicial powers vested in the court or redefine it in a way as to whittle it or limit the extent of the power\u00a0vested or conferred on the court by the Constitution.\u201d<\/em><\/strong><\/p>\n 1.3\u00a0What this means is that no legislature in Nigeria has the power to enact legislation that limits the exercise of judicial power or (as\u00a0Falana\u00a0states in his submission) constitute an\u00a0\u201couster clause<\/em><\/strong>\u201d.<\/p>\n 1.4\u00a0With regard to ouster clauses (although I do not agree that section 306 is one) Section 4(8) of the Constitution expressly forbids it and disempowers the legislature from making any such law.<\/p>\n 1.5\u00a0To do so the legislature would have to amend the Constitution and that procedure is not the same as\u00a0the\u00a0mere passing of a bill into law as was done with the ACJA.<\/p>\n 1.6\u00a0It is therefore more strange and bizarre that any lawyer would castigate the apex court or any court for that matter for ignoring the so called \u201couster clause\u201d constituted by Section 306 of the ACJA especially as it expressly conflicts with the powers donated to the judiciary by the constitution, part of which is the power to order stay of any proceedings.<\/p>\n 1.7\u00a0In this regard the\u00a0Fundamental Rights Enforcement Procedure Rules 2009\u00a0<\/strong>expressly provide\u00a0in Order 4 Rule 4(iv)<\/strong>\u00a0that the Civil Rights Court may\u00a0\u201cGrant injunction restraining the Respondent from taking further steps in connection with the matter or maintaining status quo or staying all actions pending the determination of\u00a0<\/em><\/strong>[a Fundamental Rights]Application\u201d<\/em><\/strong><\/p>\n 1.8\u00a0In Order XI of the same rules it is provided that the Civil Rights Court may \u00a0\u201cAt the hearing of any [fundamental\u00a0right]s\u00a0application, under these rules, \u2026. Make such orders, issue such writs and give such directions as it may consider just or appropriate for the purpose of enforcing or securing the enforcement of any of the Fundamental Rights provided for in the Constitution or African Charter on Human and Peoples Rights (Ratification and Enforcement) Act to which the applicant may be entitled\u201d\u00a0<\/em><\/strong><\/p>\n 1.9\u00a0Katsina\u00a0Alu\u00a0JCA (as he then was)\u00a0in the case of\u00a0Abia\u00a0State University V\u00a0Anyaibe\u00a0[1996] 3 NWLR (PART 439) 646 at 661\u00a0E-F said of the Fundamental Rights Enforcement Procedure Rules as follows:\u00a0\u201cSince the Rules have the force of law as the Constitution itself, it overrides the provisions of any other enactment which seeks to provide \u2018an alternative\u2019\u201d<\/em><\/strong><\/p>\n 1.10\u00a0Therefore in my humble submission it is erroneous for anyone to state that it is illegal to grant a stay of proceedings in criminal proceedings.<\/p>\n 1.11\u00a0The criminal court may ignore the provisions of section 306 in so far as it limits its ability to do justice in any worthy case and certainly an appellate court that perceives that something is wrong with any criminal proceedings may order its stay not withstanding the provisions of section 306 of the ACJA and if it becomes an issue may\u00a0infact\u00a0set aside the section as invalid null and void.<\/p>\n 1.12\u00a0Furthermore a Civil Rights court before whom a complaint is made that a criminal proceedings\u00a0infringes on any of the fundamental right in chapter iv of the Constitution certainly has the power donated expressly by the constitution to intervene and the provisions of section 306 of the ACJA would not be of any moment in that circumstance given the superiority of the Constitution to the ACJA.<\/p>\n 2.1\u00a0Whereas everyone agrees that it is necessary to root out the plague of corruption from this country the method by which that is to be done must not be at the expense of the integrity of the institutions of democracy. The idea to limit the power of the courts to grant stay of proceedings in criminal trials is apparently rooted in the perception that judges cannot be trusted to do the right thing in Nigeria because of corruption this cannot be the appropriate way to root out the corruption in the judiciary. It is equivalent to enacting a law forbidding the President from approving expenditure because we believe that politicians are corrupt. That would only bring governance to a halt. The hue and cry about the efficacy of section 306 today is because those who\u00a0favour\u00a0it are not themselves judges. If they were, they probably would frown on a law that already labels them as incompetent to rightly exercise discretion or corrupt before they had a chance to show their mettle.<\/p>\n 2.2\u00a0It must be borne in mind that the fight against corruption is a\u00a0worldwide\u00a0fight as evidenced by the United Nations Convention against Corruption 2003 and the ECOWAS protocol on the fight against corruption 1993\u00a0both of which Nigeria is signatory to. The methods are stated in those conventions and they include a strengthening of the institutions of democracy and not the whittling down of their efficacy, authority or powers. I wonder why Nigeria\u2019s case is always negatively different.<\/p>\n 2.3\u00a0Furthermore abuse of office and the illegal instigation of criminal\u00a0processes are\u00a0required by Articles 17 and 25 of the UN Convention to be criminalized by signatories as corrupt practices. If the Supreme Court perceives that the criminal proceedings against Senator\u00a0Saraki\u00a0might have been improperly instigated for any reason it is obliged to join in the fight against corruption by stopping it completely and to this end may properly stay proceedings until it is satisfied that its perception is wrong.<\/p>\n I congratulate the Supreme Court for braving the mob\u00a0hysteria which\u00a0appears to be the hallmark of this new fight against corruption to do the right thing.<\/p>\n A clearly orchestrated tirade against the Supreme Court of Nigeria in respect of its acceptance of an undertaking by the counsel to the Respondent in the\u00a0Saraki\u00a0Appeal has come to my…<\/p>\n","protected":false},"author":1,"featured_media":43966,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","footnotes":""},"categories":[7],"tags":[],"class_list":["post-43961","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-articles-opinions"],"yoast_head":"\n\n
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\nAjibola Oluyede, Nigeria\u2019s foremost tough litigator wrote from Lagos<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"