It is meant to curb delays, but the Administration of Criminal Justice Act (ACJA) 2015 appears, so far, ineffective. By employing the age-old tactic of interlocutory appeals, defendants still succeed in compelling courts to stay proceedings. In this report by ERIC IKHILAE, lawyers suggest ways to sanitise the process.
On March 18, the Supreme Court ordered former Abia State governor Orji Uzoh Kalu and the ex-Director of Finance in the State House, Udeh Jones Udeogu, to submit themselves for trial in relation to the N5.6 billion fraud charge brought against them in 2007 by the Economic and Financial Crimes Commission (EFCC).
Kalu, his company, Slok Nigeria Limited, and Udeogu were arraigned before the Federal High Court, Abuja on July 27, 2007. They were able to stall proceedings in the case by exploiting the interlocutory appeal in the criminal justice system.
In January, 2007, the EFCC issued a report on the management of Rivers State’s funds while Peter Odili was governor. The report alleged that Odili and other state officials diverted over N100 billion.
Before the anti-graft agency could proceed against Odili and others in court, the state’s Attorney-General challenged the commission’s power to probe the state’s affairs. The trial judge in the case, Justice Ibrahim Buba of the Federal High Court, consequently, issued an order of perpetual injunction, restraining the EFCC from, among others, prosecuting Odili and others named in the report.
Today, according to the Acting Chairman of the EFCC, Ibrahim Magu, the injunction is still being kept alive by the alleged refusal of the Court of Appeal to list for hearing, the appeal his agency lodged against Justice Buba’s injunction.
The Kalu and Odili cases are classic examples of how the criminal justice system can be legally subdued to frustrate trial.
However, efforts by stakeholders to eliminate the menace of unending delay in cases informed the enactment of the Administration of Criminal Justice Act (ACJA) 2015.
The ACJA seeks to regulate criminal proceedings in courts. It is expected that states will enact similar laws.
Prior to the ACJA, heads of the Supreme Court, the Court of Appeal and Federal High Court had issued practice directions aimed at fast-tracking trials and appeals on criminal cases.
For instance, Order 7 Rule 1 of the Supreme Court (Criminal Appeals) Practice Directions 2013 states: “In the determination of appeals arising from interlocutory decisions in the Court of Appeal in all criminal appeals, relating to the offences of terrorism, rape, kidnapping, corruption, money laundering and human trafficking, the court shall give priority to those matters and, where possible, hear such matters on a day-to-day basis until final determination.”
Order 7 Rule 2 allows the court to refuse to hear appeals arising from interlocutory decisions or criminal appeals relating to the offences of terrorism, rape, kidnapping, corruption, money laundering and human trafficking, where the court is of the opinion that the issues raised in such appeals could be conveniently dealt with in appeals arising from the judgment on the substantive matter.
However, the makers of ACJA, in improving on the provisions in the various courts’ Practice Directions (on criminal cases), made salient provisions in Sections 306 and 396, which many, including the Attorney-General of the Federation (AGF) and Minister of Justice, Abubakar Malami (SAN) and Professor Yemi Akinseye-George of the Centre for Socio-Legal Studies (CSLS), have hailed.
Section 306 of ACJA states: “An application for stay of proceedings in respect of a criminal matter before the court shall not be entertained.”
Section 396(2) states: “After the plea has been taken, the defendant may raise any objection to the validity of the charge or the information at any time before judgment, provided that such objection shall only be considered along with the substantive issues and a ruling thereon made at the time of delivery of judgment.”
Malami, at a workshop on ACJA, said the Act in general and Sections 306 and 396, have “succeeded in challenging certain stereotypes about the criminal prosecution regime in Nigeria; and, in the process, introduced innovations, which are not only modernistic and forward-looking, but are designed to make our criminal justice system more humane, efficient and transparent.”
Akinseye-George, also at the workshop on ACJA in Abuja, addressed the apprehension expressed by some legal practitioners on the provisions of Section 306 and 396 of ACJA in relation to the right of appeal and the right to raise objection on jurisdiction.
He argued that the provisions do not hamper the right of appeal guaranteed under the Constitution, but only allows appeals upon the delivery of judgment, by which time, the substantive issues would have been determined and proceedings concluded.
Akinseye-George noted that similar provisions exist under Order 8 Rule 4 of the Fundamental Rights Enforcement Procedure Rules where objections are to be taken with the substantive application.
“The same benefit should not be denied the state in criminal trial cases by allowing objections by defendants to stall trials indefinitely.
“It is akin to robbing Peter to pay Paul when defendants, who insist on staying their trials on the basis of interlocutory objections, happily enjoy the ban on separate hearing of interlocutory objections by the state in human rights cases,” he said.
Despite the provisions, instances still exist where judges create room for interlocutory appeals by making interlocutory pronouncements.
One of such cases is during the trial of Senate President, Bukola Saraki, before the Code of Conduct Tribunal (CCT) on false assets declaration.
Despite the clear provisions of Sections 306 and 396(2) of the ACJ, CCT Chairman, Danladi Umar has given two rulings, on which basis Saraki had appealed. The first was in September last year, when Saraki challenged among others, the composition of the tribunal and the competence of the charge.
Saraki’s appeal against the September ruling by Umar stayed proceedings in the case until February 5, this year, when the Supreme Court dismissed the appeal for lacking in merit and ordered the Senate President to submit himself for trial.
Although the Supreme Court, in its February 5 judgment, held that the ACJA was applicable to the CCT, Umar, again, on March 24 this year made another interlocutory ruling on Saraki’s motion, challenging the CCT’s jurisdiction.
Saraki has again appealed this ruling and has requested the Court of Appeal to order stay of proceedings at the CCT pending the determination of his appeal.
Perhaps, such delays was why President Mohammadu Buhari described the Judiciary as a threat to his administration’s anti-corruption efforts.
Observers are, however, of the view that the President ought to exploit the existing inter-governmental relationship to ensure that the judiciary buys into his dream of ensuring an ideal system, which routinely provides adequate access to justice, ensures timely and impartial delivery of justice and upholds the rule of law.
They identified core features of such an ideal judicial system to include transparency, accountability, independence, integrity and efficiency.
Experts are of the view that notwithstanding the President’s apprehension a lot has been achieved since the introduction of the ACJA.
They argued that but for the ACJA, most of the cases commenced under this administration, including the trial of former Chief of Defence Staff, Alex Badeh, former Defence Minister, Haliru Bello and his son, Abbah, and the case involving the spokesperson of the Peoples Democratic Party (PDP), Olisa Metuh, would have been stalled at the preliminary stage like the Kalu and Odili cases.
Observers, however, noted that, despite the pledge by the Chief Justice of Nigeria (CJN), Justice Mahmud Mohammed, to entrench discipline on the Bench and penalise indolence and unethical conduct, he has remained soft on judicial officers, against whom cases of misconduct have been established.
They cited the case of Justice Rita Ofili-Ajumogobia ( of the Federal High Court, Lagos) who was only given a slap on the wrist when a case of misconduct was established against her by the National Judicial Council (NJC).
The NJC, in a statement by its Acting Driector, Information, Soji Oye, on March 2, this year, said if found Justice Ofili-Ajumogobia guilty of misconduct, and warned her (the judge) and placed her on its “watch list” for the next four years.
It said she will not be considered for elevation or included in any ad-hoc judicial appointment till her retirement from the Bench. The penalties are to take immediate effect.
The NJC’s decision, taken at its meeting on February 24 and 25, was informed by its findings that the judge was found to have been involved in misconduct and act of injustice by failing to deliver judgement in a pre-election case and delaying her decision until the expiration of the tenure of the person whose qualification for election was being challenged.
It said: “The Hon. Judge will also not be considered for any elevation to the Court of Appeal or any ad-hoc judicial appointment till her retirement from the Bench.
“The decision was sequel to the petition written against her by one Victoria Ayeni, alleging misconduct and injustice on the part of Hon. Justice Ofili-Ajumogobia for failing to deliver judgment in Suit No FHC/AB/CS/31/2011, a pre-election matter between Victoria A. A. Ayeni and Olusola Sonuga and 2 Ors.
“She was also alleged to have adjourned the pre-election matter severally until the termination of the life span of the Ogun State House of Assembly.
The decision of the Council on Hon. Justice Ofili-Ajumogobia is with immediate effect.”
Many have argued that the NJC’s decision on the Justice Ofili-Ajumogobia case, which has been the only judge sanctioned since Justice Mohammed became the CJN over a year ago, was like leaving a wounded snake on the Bench.
They argued that rather than deter her, the penalty has the potential of propelling her into engaging in more heinous misconduct, knowing that she has nothing else to lose.
Observers are, however of the view that an effective review of the Judiciary must be holistic and must include all stakeholders, but with the Judiciary providing the lead. They advised that such review measures should also aim at fast tracking proceedings in civil cases too.
Lawyers including Femi Falana (SAN), Prof Akinseye-George, Joseph Otteh and Dr. Abdulazeez Abubakar are of the view that an effective reform process in the Judiciary should be strategic and long lasting.
Falana, in a recent presentation, argued that in reforming the judiciary, effort must be directed at reviewing the process of appointing judicial officers.
“Efforts should therefore be intensified by the National Judicial Council to review the procedure for recommending candidates for appointment to the higher bench, the removal of corrupt judges from the bench and the amendments of the rules of practice and procedure of the high courts and the appellate courts.
“In the past, the country benefited immensely from the appointment of distinguished legal practitioners and law teachers as justices of the appellate courts.
“Even some Chief Judges were elevated to the Supreme Court Bench without going through the Court of Appeal. Such jurists added value to the quality of the decisions of the courts and enhanced the integrity of the judiciary.
“But without any justifiable basis the NJC has turned such appointment into a promotion exercise among serving judges. The on-going judicial reform should return the judiciary to the glorious past when judges were selected among the best in the legal profession,” Falana said.
Akinseye-George suggested, among others, a measure where the Constitution is amended to ensure that all interlocutory appeals terminate at the Court of Appeal.
“Further, it is suggested that the provisions of Section 306 of the ACJA be incorporated by amendment to the Constitution so that the criminal justice sector could be saved from unnecessary delays perpetuated through the abuse of interlocutory appeals.
“Meanwhile, the courts, and the Supreme Court in particular, should give effect to the intendment of the law makers by interpreting the Act in a manner that would promote speedy determination of cases without undue distraction and delay by interlocutory appeals,” he said.
Otteh, who noted that past reform measures have not been sustained because they were individual driven, suggested a systematic approach that will be enduring.
“The foundations on which to anchor our long-term change hopes must be stronger and more enduring; it should go beyond the credentials of a strong individual and should rather seek to build robust systems that emerge from wide stakeholder consensus.
“This means that while we see the urgency of wide-ranging reforms in the judicial system, we must rethink the approaches we have adopted to meeting the need.
“What needs to be done, at both federal and state levels, is to set out a strategic multi-year plan for reforms; say a four or five year plan, that has been developed collectively with stakeholders in the “justice” sector and then mobilise efforts to implement the plan.
“At this time, we have, as it were, not agreed or set out a vision for the Judiciary. It’s nearly a case of every leader has his (or her) own take. That approach is unsystematic and cannot deliver sustainable results over the long term,” Otteh said.
Abubakar argued that it was not enough for Buhari to complain, but that he should take steps to ensure the judiciary is well funded, and avoid violating the constitutional provision of financial autonomy of the judiciary.
“Rather than impugning, publicly, the integrity of another arm of government, the President, as the head of the Executive arm, should explore existing internal collaboration mechanisms that exists among the arms of government to facilitate the workings of government.
“President Buhari, while observing the principle of separation of powers, can bring to the attention of the CJN, areas he feels requires attention,” Abubakar said.
