Comment on the ruling of the Supreme Court on Senator Orji Uzor Kalu's case

Introduction

On May 8, 2020, the Supreme Court nullified the conviction of Senator Orji Uzor Kalu; on grounds of jurisdiction and constitutional supremacy amongst others. There have been lots of legal debates and discourses, on the propriety or otherwise of the apex court's ruling.

While some are at home with the stance and ratio of the SC, some are not. Those who oppose the unanimous ruling of the SC, are of the view, that the ancient cloak of jurisdictions and constitutional supremacy would have been adjusted- to at least, embrace the new developments and realities embedded in the provision of section 396(7) of the Administration of Criminal Justice Act(ACJA). Which the SC made redundant and inapplicable by the virtue of their ruling in Senator OUK's case.

In defense of the Supreme Court

The SC on May 8, 2020, made a unanimous ruling, invalidating and nullifying all orders and rulings of Justice M. B. Idris, including the conviction of Senator Orji Uzor Kalu. The apex court gave its reason for giving out such ruling, which is mainly hinged on jurisdiction and the supremacy of the Constitution over other laws.

It is no gainsaying that jurisdiction remains the life wire of every litigation process in our legal system. It is a fundamental concept, that goes to the root of every matter in any court of law. It is mostly predicted on either the qualification of a judge or the subject matter before the court or the fulfillment of any condition precedent before any matter in court. There is no iota of doubt, that the first two constituents of jurisdiction, is founded in the 1999 Constitution. Hence, the Constitution is a haven for their protection against any violation.

The SC could not imagine where the provision of section 396(7) of ACJA, would displace the provisions of the Grundnorm. That provision of ACJA empowers elevated judges to the Court of Appeal, to have the leave to entertain part criminal trial, in the lower court which was not concluded by them before their elevation. The panel was rattled by the idea of creating a hybrid jurisdiction, which would hide on the cloak of the assured progressive provision of section 396(7) of ACJA to be an affront on the provisions of the Constitution.

I believe that SC made this pronouncement, to avoid the creation of hybrid jurisdiction in our legal system. A creation that will disrupt the whole legal system which of course is unconstitutional. So, the SC tried avoiding serving as the midwife, to such unconstitutional birth. The panel as well, could not fathom a situation where a Judge/Justice in question is seen as the proverbial "bat", which does not either belong to the air or land. According to the SC, the intent of that ACJA provision is to create that hybrid jurisdiction which is unacceptable and unconstitutional.

Moreso, the Justice M. B. Idris had taken the oath of office as a Justice of the Court of Appeal under the seventh schedule of the Constitution. It then follows, that he has left the office as a Federal High Court Judge, and has forfeited every power thereof, which includes jurisdiction. He now acts as a JCA. In the eyes of the law, he is a Court of Appeal Justice. If so, the law presumes he was acting as such under section 247 of the Constitution. Then he alone cannot constitute the court in hearing the case of Senator OUK in the Federal High Court. Also, it is pertinent to note as well, that the Court of Appeal is not a court of the first instance, to the subject matter Justice M. B. Idris handled as the Justice of the Court of Appeal acting on the provision of section 396(7) of ACJA. That was in total affront with section 239 of the Constitution, which was explicit on the provision of the appellate court's original jurisdiction.

Even if the SC turned a blind eye on the provisions of the Constitution and jurisdiction, would it still overlook due process? My answer will be on the negative. Justice M. B. Idris was given the fiat to go ahead to conclude the part hearing of the criminal trial of Senator OUK before his elevation by the then President of the Court of Appeal (the head of the Court of Appeal). If at all, the provision of section 396(7) of the ACJA was to be invoked, that power has to be confined and residual on the Chief Judge of the Federal High Court. The combined reading of sections 1(2)(a), 17, and 19 of the Federal High Court Act empower the CJ of the Federal High Court to be the supervisor and controller of the Federal High Court, which includes the assigning of cases to judges. Hence, the purported fiat given by the former President of the Court of Appeal is invalid, as the PCA acted in substantive ultra vires.

It would have been endured if the fiat was given on the strength of a valid law. The PCA in granting the purported fiat did so by citing and acting on a non-existent law. It is on record that the memo granting the leave bore section 396(7) of the Criminal Justice Act (underlining mine). It shows one thing, that the Justice M. B. Idris acted on a non-existent law which has no potency nor validity. It could be likened to as having acted on nothing, as no fiat was granted ab initio.

The SC believes in the total demarcation of both courts, as espoused by the provision of the Constitution. The SC did not only protect the provision of the Constitution, but it also averted the possibility and indeed, the probability of a court usurping the power of another court, on the strength of a law- which is not envisaged or intended by our constitution. Hence, the SC hinged their unanimous decision on these grounds.

On the other hand...

Those in opposition to this ruling, are of the view that the SC did not submerge itself on the intellectual rigors in considering section 396(7) of ACJA. According to them, the SC would have taken a step in the right direction, especially in giving profound precedence. This will help drive home the possible actualization of section 1 of the ACJA, which is centered on the effectiveness of the administration of the criminal justice system in Nigeria.

It is also worthy of note, that it seems the SC did not aver its mind, to the mischief section 396(7) of ACJA was meant to cure, in our criminal legal system. The mischief is to curb scenarios where matters are started de novo when a judge is elevated to a higher court. Unfortunately, this would have been been a turning point in our criminal legal system, to avoid the rate of prolonged criminal cases on the ground of Judges' elevation to higher courts. 

The proponents of this idea, are ardent adherents to Lord Denning's profound dictum, that where we fail to create precedents, then the whole world will move on, while the law stands still. It is indubitable, that our criminal justice system needs a whole lot to embrace, at least to accommodate the innovative ideas of the lawmakers in incorporating the controversial section 396(7) of the ACJA. But then, the SC decided to look the other way to protect the Constitution and uphold the sanctity of jurisdiction by making this provision in ACJA redundant and inapplicable.

Conclusion

The supremacy of the Constitution cannot be overridden by any form of submission or law, no matter how brilliant. Section 1(3) of the Constitution will always be a legal sword in the hands of the court, to render such law asunder. The same applies to jurisdiction, as the SC vehemently opposed the idea of a hybrid jurisdiction which is most probable, to be created by the express application of section 396(7) of ACJA.

There is however a pressing need for constitutional amendments, by our lawmakers. This will help capture some innovations and realities embedded in some novel laws and provisions, that are against the letters of the Constitution. Just as we have in the ACJA via section 396(7). 

I believe opportunities will avail themselves in the nearest future, where the perceived wrongs of the SC would be corrected, especially on this subject matter. Until then, the Constitution is sacrosanct, so are the provisions. If so, the provisions can never be sacrificed on the altar of any law, no matter the mischief it intends to cure- unless the needful is done.

Ogbu Ekeoma Solomon, SM-CIArb is a final year student at Nnamdi Azikiwe University. He has a knack for taxation law, labor and employment, and ADR. He seeks to leverage on them to help push the legal industry to the next level of relevance.