Let me quickly state this: I know that there is only so much our academic opinions can achieve. In Nigeria, the political considerations of our laws, it appears, quite disproportionately mock the full stretch of our collective intellectual opinions. When I think of how insignificant our academic debates are, I try to approximate the relevance in other jurisdictions. For instance, when the United States Supreme Court delivered a controversial decision in favour of George Bush in 2000, there were over 78 legal articles written to either criticize or commend the court in a space of two years. William Rehnquist, a favourite American SC Justice in the case, was reported to have entertained all the articles, read them and took pains to release a dissertation clarifying and re-emphasizing the purposive ratio the court adopted to reach its decision. Notwithstanding, it is important that I spell out a few things to the revered Supreme Court of Nigeria on its recent decision nullifying the trial of Senator Orji Uzor Kalu on Friday 8 May, 2020, because I believe, (and I say this with respect and in relation to anything else I will say afterwards), that the Supreme Court has not been ticking a number of boxes.
The Supreme Court invalidated the trial of Uzor Kalu, a trial that lasted over 12 years, on the grounds that the then trial judge of the Federal High Court (“FHC”) who handled the case had been elevated to the Court of Appeal (“CA”) at the time of delivery of judgment and as such, he lacked jurisdiction to have concluded the criminal matter. The court ordered a re-trial from the beginning (12 years wasted) and leaned towards the argument that section 396(7) of the Administration of Criminal Justice Act (“ACJA”) is inconsistent with the constitutional delineation of courts – and their jurisdictions – and therefore unconstitutional.
The judgment, respectfully, appears to be lacking in intellectual rigour. Before considering the full measure of the arguments, I should mention that my bias against the judgment is its nasty reliance on the very convenient argument – jurisdiction and supremacy of the constitution. Nigerian courts should have realised by now, that the concept of jurisdiction (which is often dubiously tied to the supremacy of the constitution) is really just over-emphasized legal rhetoric and it should not blindfold the court from fully conceptualising cases and reaching decisions, however radical. In this case, the Supreme Court failed to consider a number of principles, scenarios and peculiarities. I’ll point out the most relevant concerns:
- Erroneous interpretation of section 396(7) of ACJA as lacking a constitutional basis:
The best argument provided in favour of Uzor Kalu is that the FHC, by section 253 of the Constitution, must be constituted by at least one Judge of that court. Lawyers such as Awolowo SAN have argued that since the judge in the Uzor Kalu’s case was elevated to the Court of Appeal, he lacked jurisdiction to deliver a judgment in the FHC as he was no longer a judge of “that court”. The SC agreed to this argument on the grounds that section 396(7) attempted to make a judge function in two capacities since a judge of “that court” cannot at the same time be a judge of the Court of Appeal. Meanwhile, section 396(7) of the ACJA simply solves an advanced peculiarity that the constitution did not contemplate. The section says that where a judge has partly-heard a criminal matter and he is subsequently elevated to a higher court, for the purpose of that trial, and in the interest of speedy dispensation of criminal matters, such a judge should be allowed to finish that criminal matter.
I cannot seem to find what is contradictory in the foregoing provisions. They can complement each other. The constitution did not envisage a situation where a judge may have to abandon a trial half-way due to his elevation to a higher court. It did not provide for it. This absence of foresight was solved by the ACJA because this scenario presented a special nuance. What the supreme court ought to have done was to simply allow the ACJA to create an exception to the constitutional set up of courts only in this restricted circumstance. Respect for the constitutional order and delineation of courts can simply co-exist with the peculiarity of an elevated judge concluding a case he started. This is not contradictory because in terms of unconstitutionality, there is absolutely no correlation between a law that addresses a nuance not covered by the constitution, and the jurisdiction or hierarchy of federal courts; it is complementary especially when it is for the advancement of expeditious delivery of justice in criminal matters. What injustice does it do to the parties or the people? None. A provision of law cannot be unconstitutional merely because it does not seem apparent or expressly worded in a constitution entrenched decades ago. Such an interpretation is justiciably unprogressive and lacks foresight. Most painfully, it is an absence of intellectual rigour. If the court had asked a few more honest questions, they would have found answers.
This should have been the wiser resolve: the FHC must be constituted by at least one judge of that court. However, in instances where an elevated justice has not concluded a criminal trial before his elevation to a higher court, such a judge should be made to shuffle both courts ONLY in respect of the unfinished trial after all, what is required to satisfy section 253 of the constitution is at least one judge. Other judges of the FHC can satisfy the requirement of “at least one judge” without having to invalidate the trial concluded by an elevated judge. This logic makes trials quick; it does justice to Nigerians, it does justice to the constitution, it does justice to the parties. All that was required to make this law was for the SC to simply adopt a more purposive approach to finding a common ground between both legislations. But I fear that the SC chose to desperately draw a distinction and cry foul that their hands are tied. Whereas, if they had applied the logic above, it would be the law as we know today, and the sky will not fall.
Partly-heard cases are a peculiar nuance and a nuance should be treated as such. It is unintelligent for a court to assume that every extension of the provisions of the constitution is unconstitutional especially considering the difficulty in amending the constitution. The constitution did not condemn extensions, it condemned inconsistency in section 1(3). What exact inconsistency does an extensive section 396(7) of ACJA pose? A valid Act of the National Assembly should be interpreted to suit justice and not to submit to the filigree of unjust distinctions.
- Slavish obedience to the rhetoric of jurisdiction and constitutional supremacy.
Many lawyers, including the learned Awomolo SAN have argued that the intendment of the constitution in section 253 and the sections establishing the various jurisdictions of courts, was to eliminate a situation where a judge of one court could be functioning in another court, for any purpose whatsoever. He ended this argument, as expected, with the convenient statement that the constitution is supreme. I find it laughable most times when lawyers speak of the “intendment” of the constitution. Who defines this “intendment”? Whichever way one looks at it, the intendment of the constitution is, and will always be justice. Take the constitution as a piece of paper. Shred it to pieces, squeeze it and shake off every ash off of it, what you will find left and most underlying, is justice – this is what is meant by “the spirit of the law”.
Again, could the constitution have given what the SAN described as a clear intendment in a scenario that the same constitution did not contemplate? It is for the supreme court to determine the intention of a statute when it is silent on a subject and the interpretation must suit justice. It must be purposive. That is what judges are actually paid to do. It becomes lazy to simply rely on the bare letters of the constitution in a matter that the constitution did not provide for especially when there is an Act that so provides same. What then is the wisdom of our learned lords if it is mere slavish conformity with every day constitutionalism? There are many instances where our learned lords has chosen technicalities over justice (sometimes even erroneously deeming the law as inapplicable) and we have commended their judgments as valid. Can we continue to commend their lordships for simply restating constitutional supremacy in times and cases where they should be deploying their intellectualism to find a balance between law and public policy? I think not. There’s nothing spectacular about unjust constitutionalism or the idea that justice is intertwined with technicalities – such tricks should be enjoyed by undergraduate constitutional law students; not emphasized by SC justices in a system that is in dire need of either judicial activism or legislative overhaul.
I’ll make an additional point clear to the SC and the learned Awomolo SAN: the concept of jurisdiction and the slavish respect that our courts award it, is simply an over-glorification of a rhetoric. It is a figment. There is no where in the constitution where it is stated that jurisdiction can be raised at any time even on appeal, but it is the law. There is no where in the constitution where it is stated that the Attorney-General is a law unto himself who can decide whom to try and whom not to. Yet, this is the law. The same court bellyaching about supremacy and what not, has in many occasions set “unconstitutional precedents” that we now vigorously parade as the law. Need I remind you of Inakoju v Adeleke (2007) where the SC deliberately ignored section 188(10) of the constitution which ousted their jurisdiction, in order to do justice to the barbaric actions of a few Oyo state legislators? The same SC held in Inec v Musa (2003) that an Act that contradicts the constitution violates the doctrine of covering the field whereas the actual doctrine contemplated in section 4(4)(5) of the constitution was not as expansive. But that is the law today. The instances are numerous and there is nothing special about a precedent that the same SC cannot upturn for the sake of justice.
The Supreme Court failed to consider that first of all, the constitution was not intended to be perfect; what is perfect is simply what the supreme court deem it to be and what they deem it to be depends on how they choose to see it. The Nigerian constitution is as imperfect as any other constitution one would find in a constitutional democracy. For instance, the original constitution of the US was merely four (4) pages with no interpretation section. It was and has never been exhaustive. Yet, the American courts have always interpreted its provisions to serve the ends of justice at all material times. Often, when I discuss constitutional law, I refer to the American constitutional system because of its progressiveness. Indeed, the difference between these systems is simple: in the US, the constitution is regarded as the supreme law but not as untouchable. Definitely not in the face of injustice or unnecessary technicality. It would appear, however, that in Nigeria, the constitution is regarded as not only the apex law but as an impregnable piece of legislation whose provisions are meant to be consistently abidden by at all costs even when it does no justice in the circumstance. This is a warped idea of what a constitutional democracy should be about.
The problem with the way the Nigerian constitution is viewed stems partially from the fact that very early into legal studies, lawyers are meant to nearly slavishly believe that any argument that is not starkly consistent with the constitution must give way for it. While this is largely true, it is problematic because our abilities to appreciate legal problems differ. A much deeper insight may be needed to truly examine whether a legal problem is consistent with the constitution or not and we do not have this ability in same measure. The truth, however, is that the law is intended to be stable enough, but it is not to stand still. Constitutions are organic documents which must be interpreted always to align with the socio-political and socio-economic pace of the country and its people. Lawyers may enjoy the illusion that legal intelligence is in fishing out technicalities, but more should be expected of Supreme Court justices who have to consider a wider range of perspectives: public policy, justice, equity and constitutional progressiveness. It is their duty to make lawyers under that the law is larger than their momentary feelings of cunning.
Conclusion – why should the Supreme Court accept my postulations?
Because many of their judgments do not appeal to the entire polity, I fear, perhaps only to SANs. The Nigerian Supreme Court needs to understand the enormity of its powers. All it takes to either devastate a harsh legislation or instigate the National Assembly to enact or amend existing laws, is one judicial decision. Rather than slavishly draw distinctions to suit a restricted precedent, adopt a purposive approach. In the case of Uzor Kalu, funnily enough, we did not even need them to be purposive as such, we only needed them to be more intellectual because actually, there was no contradiction between both laws. The NASS does not need to amend the constitution to impute section 396(7) of the ACJA. These are procedural matters and it is rightly handled by the ACJA. We need a SC that should see it this way. But let us assume it is purposiveness that we need; the SC should also understand that it is well within its powers to be purposive, to detract from rhetoric and precedents to do justice. They seem to have forgotten this.
It is likely that many lawyers will find this paper to be about the law as it should be, not the law as it is. I entertain that sentiment without accepting it, but I cannot cast blames. In my country, lawyers confuse the intelligence of technicalities with the essence of the law, and that is fine. This is why this paper is an attempt to incline the ears of my learned justices to some boxes left unticked. And not necessarily to lawyers. All the boxes culminate in a few questions: what is the justice of invalidating a trial that spanned 12 years on account of two sets of harmonizable legal provisions? Witnesses are weary, evidence might have been lost already. Where is the justice in over-widening the possibility of an acquittal at the expense of the state and the people? Does the court still understand that, like the reluctant NASS, they too, can ‘make’ laws? Let us assume this case was even desperately about constitutional amendment, does the SC also understand that it is perfectly okay to amend the constitution by dicta for the sake of criminal justice (which includes speedy dispensation of justice) and wait till the NASS to react? It has done it before.
I want to assume that my learned lords know the true answers to the honest questions above except there are unidentified, non-legal considerations weighing on their minds. Try as I might, I remind them through this work, that those considerations already appear to have been weighing too much on their minds lately.