By Prof. Tony Anyanwu
The Economic and Financial Crimes Commission (EFCC) on Friday , July 2 at the Federal High Court Abuja nailed itself by failing to point out to the court where Supreme Court ordered retrial of former Abia State Governor, Senator Orji Uzor Kalu
EFCC through it’s Counsel Rotimi Jacobs (SAN) earlier claimed that the Supreme Court of Nigeria in its May 8, 2020 judgment ordered that Senator Orji Uzor Kalu be retried.
However, on the contrary, the Supreme Court did not make any such order. Instead, the apex court was very specific in the language of its order and the reassignment of the case on appeal and retrial thereof were as regards to “the Appellant” (not Orji Uzor Kalu, who was never an Appellant on that appeal) and “the Second Defendant” in the case at trial, (which was not Orji Uzor Kalu).
Indeed, the Supreme judgment, did not refer to Orji Uzor Kalu in its language or proceedings. Orji Uzor Kalu is simply one of many Nigerians who benefited from a Supreme Court judgment that declared the true position of the law as regards certain important provisions of the Constitution, which in that came to the conclusion that Orji Uzor Kalu was among several Nigerians wrongly convicted by courts that lacked jurisdiction to try them.
It is unfortunate that Rotimi Jacobs that claims to have 20 years practicing experience would so blatantly and intentionally misquote obvious judicial facts. Leaving his earlier position that the Apex Court had ordered for retrial of Kalu on Friday . Rotimi Jacobs submitted and accepted that the judgment, which led to release of Kalu, was declared a nullity by the Supreme Court, adding that the court only ordered the retrial of the appellant( one Mr Jones Udeogu)
He later abandoned rule of law and went emotive, arguing that since the Supreme Court order benefitted Kalu, he must bear the burden that arose from the apex court verdict.
For a full perspective on the matter, a person can only be convicted in accordance with the Constitution and the laws, and by a court of competent jurisdiction. Any purported conviction by any court that lacks jurisdiction to try the case amounts to nothing. It is no different than an outcome of a trial by any idler on the street. So any purported conviction of Orji Uzor Kalu by Justice Mohammed Idris amounted to nothing as far as the legal meaning and consequences of a conviction go. The failure of Rotimi Jacobs to realize this basic logic is tendentious and quite troubling.
Further, it is the basic function of the Supreme Court to declare the position of the law, ie, what the law means or the intendment of the law. Also, the Supreme Court has the second function of resolving any legal controversy presented to it. This means that there is no room to speculate on an alternative position of the law to that declared by the Supreme Court. The Nigerian Supreme Court performed both functions on May 8, 2020 in respect of the appeal filed by Mr. Jones Udeogu. It is a pleasure to remind EFCC that on that appeal, the apex Court determined that Justice Mohammed Idris lacked the authority to preside in judgment over the case in which Senator Kalu was purportedly convicted.
The Supreme Court judgment connotes that the judgment of Justice Idris amounted to an exercise in futility. EFCC also acknowledged that basic truth when it’s counsel Rotimi Jacobs (SAN) told Orji Uzor Kalu’s counsel , Prof Awa Kalu (SAN) shortly after Justice Idris’ judgment in Lagos that the judgement was unconstitutional. He confided in Kalu (SAN) that their major interest was to get Senator Kalu jailed notwithstanding the route taken . This revelation was openly made before Justice Inyang Ekwo and Rotimi Jacobs himself by Professor Awa Kalu (SAN) on Friday, July 2 at Court 5, Federal High Court Abuja.
It is also pertinent to recall that Supreme Court did not order the release of Orji Uzor Kalu, and that it took additional proceedings before Justice Liman of the Federal High Court in Lagos for Kalu to be released.
The Supreme Court did not order the release of Kalu because Kalu was not a party to the appeal under consideration and the Supreme Court felt it had no basis to make any order (whether to release or to retry) specific to Kalu. Therefore, suggesting that the Supreme Court ordered a retrial of Kalu is totally incorrect. Even a rushed or casual reading of the Supreme Court judgment would not lead anyone to the conclusions expressed or insinuated by the EFCC .
When Kalu was released from detention on June 5, 2020 because of an outcome of proceedings conducted by Justice Liman, who found that there was no legal basis (no valid trial or conviction) to justify the incarceration of Kalu. The EFCC duly participated in the proceedings before Justice Liman. The EFCC did not raise any issue before Justice Liman to attempt to preserve any right to retry Orji Uzor Kalu. To suggest that in the circumstances a person could be prosecuted twice on the same indictment will amount to toying with the Constitution.
What are then the options of the EFCC? It is not in my place to advise the Commission on what to do. They have worked assiduously to bury Orji Kalu but as a seed with grace, he continues to grow .
While Kalu was being tried in Justice Idris’ court, 19 witnesses were called upon by the EFCC and none of the 19 indicted Kalu . Justice Idris however went ahead not to only convict Kalu but declared him guilty of the entire 39 count charges leveled against him .
With the revelation on the EFCC’s acceptance that Kalu’s conviction was unconstitutional, one need not be told that Justice Mohammed Idris must have been intimidated to deliver the weird judgment. The forces fighting Kalu need to study Kalu very well and understand that he is a cat with nine lives . He is not a meat to chew and swallow in peace. If these group of conspirators continue to fight and drag him because of his purported Presidential ambition, they may end up setting him up to become the President they don’t want him to be.
However, Nigerians expect that the EFCC desists from intimidating judges to buy judgment. They stole the first judgement because Justice Idris failed to stand firm in what is right but they are unlucky this time around. During Friday proceedings, Rotimi Jacobs dropped names , shouted, and displayed several abracadabra to intimidate Justice Inyang Ekwo . But the reverend judge was very calm, unassuming, experienced and controlled his court .
We therefore expect that the Commission respects the laws of the land, including that of the apex court whose judgment on Kalu was unambiguous. Humility is accepting what you cannot change and it’s time EFCC accept that Kalu is ahead of them, their co-conspirators and his enemies. There is no where in the Nigeria law and constitution that power to retry Kalu can be derived. The constitution can not be reversed and abused to accommodate EFCC’s insatiable desire to nail Kalu. The stipulation of Section 36 (9) of the 1999 constitution completely exonerates Kalu .
Anyanwu , Professor of Law , University of Ilorin writes from Ilorin .