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Orji Kalu and S.396 (7) of the administration of Criminal Justice Act – loophole or ingenious escape hatch? By Raphael Christopher



Raphael Christopher

The news today from The Supreme Court of Nigeria that the Federal High Court in Lagos acted without jurisdiction when it convicted Ex- Governor Kalu, has divided the nation.

Some commentators believe that this decision is untenable and cites this as an example of the justification of their belief in the corruption they claim is endemic in our judicial system.

Others believe that this decision is a triumph for the due process of law and a blow for their views that proper judicial process ought to be followed in every matter before the court.

There is, however, a common unity in both views – that common unity is the provisions and unintended consequences of Section 396(7) of the Administration of Criminal Justice Act. 2015 as amended.

The text of this provision reads:

“… (7) Notwithstanding the provision of any other law to the contrary, a Judge of the High Court who has been elevated to the Court of Appeal shall have dispensation to continue to sit as a High Court Judge only for the purpose of concluding any part- heard criminal matter pending before him at the time of his elevation and shall conclude the same within a reasonable time: Provided that this subsection shall not prevent him from assuming duty as a Justice of the Court of Appeal…”

It would appear that in Ex-Governor Kalu’s trial, one of the Federal High Court Judges Justice Mohammed Liman who tried his case in the High Court became elevated to the position of a Justice of the Federal Court of Appeal and thereafter returned to sit as a High Court Judge in the trial of the Ex-Governor.

The history of the section 396(7) began from complaints made by numerous prosecutors that when judges of the high court hearing their cases were elevated to the Court of Appeal, their cases were never concluded and new judges of the High Court had to take over the cases afresh and have to hear the cases again from the beginning.

This state of events regularly frustrated both prosecutors and their witnesses and resulted in huge expenses and costs with
resultant costs wastages and attendant logistic nightmares for prosecutors in organising witnesses again and again only for the cases to be part heard and justice was seen to be very very slow!

It was then suggested that since the Judges who were elevated held a higher status, perhaps they could be allowed to come back to complete any part-heard hearings and deliver judgements. This step, it was felt, would be beneficial to all. For one, it would allow the Judge who already has full knowledge of the case, to continue and deliver judgement in that case. This reasoning was of great merit because as most cases have tons and tons of paperwork, documents, exhibits and evidences, and the judge hearing the matter has already read them and is acquainted with them and has heard the witnesses – that judge, incontrovertibly is in a better position to deliver judgement at the conclusion of the hearing.

The alternative was not beneficial in that a new judge or judges has to take time to go through the evidence, reading the mountains of documents, hear the witnesses again!

It was felt that against the backdrop of Justice must not be delayed, and saving the court time and costs, the second alternative, which was the current position obtainable at that time, was clearly unsuitable.

Viola! a bill for the Administration of Criminal Justice Act, amending the Criminal Procedure Act and the Criminal Procedure Code, was presented and thus Section 396(7) of the ACJA was born!

But is there problems??

Sensu Stricto, Sections 249-254 of our constitution, grants all judicial officers appointed and properly sworn in, judicial power to use their powers under Sections 251 -252 of our constitution to discharge their functions only in their constitutionally assigned jurisdiction.

This jurisdiction is limited to be exercised in the courts under the Constitution of the Federal Republic of Nigeria, 1999 where the judge is elevated to and sits.

Now, the constitution envisages that every judge holds one position only at any particular time. A judge of the High Court cannot be a judge of the Supreme Court and vice versa.

Or is that strictly so?

Well, according to section 396(7) of the criminal justice Act, a judge can hold two positions simultaneously in two different constituted courts!

Is that right?

Well, No. a judge cannot hold two positions simultaneously in two differently constituted courts of different jurisdictions.

Let’s be clear, Section 9 of our constitution does not permit any other act or legislation to triumph over it unless that legislation is enacted as a constitutional provision following the due process and is an Act of the National Assembly with the agreement of two-thirds of the states.

Therefore, how can section 396(7) seek to introduce a situation not permitted by our constitution?

This, is the crux of the issue.

The Justice Liman was a judge of the Federal Court of Appeal and was sworn in to exercise his judicial powers in and in only the Federal Court of Appeal. By his accepting his elevation, he ceased to be a judge of the Federal High Court. He ceased to be able to exercise his judicial powers in the Federal High Court.

Furthermore, the language, descriptions and the duties assigned to a Judge of the Federal High Court and to the Judge of the Federal Court
of Appeal are different and are governed by the relevant sections of the constitution and are to be sensu strictu interpreted.

Oh, but what about the case of the Ex-Governor? Well, since the judge who gave decision in his case was wrongly holding two different judicial positions simultaneously, Ex-Governor case was therefore wrongly decided and he was wrongly convicted and therefore that conviction is unsafe and therefore a new retrial is the right result, therefore he and his associates are in the eyes of the law – innocent until a new trial is convened.

But is that not a travesty of justice? some would say? when clearly he is shown to be guilty – actually no. This is a triumph of the provisions of our sacred constitution.

Plus has anyone considered the other side of this? If the constitution prohibits the amendment of it by any legislation not being an Act of the National Assembly with the concurrence of two-thirds of the states of the federation, then any act done under the provisions of section 396(7) of the criminal justice act is illegal and unconstitutional.

Yes, we understand the reasons and the merits and the good that section 396(7) is meant to achieve however, it cannot usurp the shining sword of our constitution.

What then is the solution?

More judges needs to be appointed to ease the workload and ensure that this situation does not happen again.

Will that happen? I don’t know.

Do you?

– Christopher wrote from Enugu State, Nigeria

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