In promoting the interest of his benefactor and choice, Prof. Yemi Osinbajo, Ajulo wrote like an uninformed and rusty lawyer. Rt. Hon. Chibuike Rotimi Amaechi remains the man to beat, not only in the APC primary election, but also in general election.
The Supreme Court in CHIBUIKE ROTIMI AMAECHI VS INEC & ORS (2008) LPELR-446(SC), made it abundantly clear and put that issue beyond peradventure that the Report of a Judicial Commission of Inquiry or Commission of Inquiry or howsoever called is not enough to deprive a citizen of Nigeria of the eligibility to contest an election. For ease of reference, here is a major pronouncement of the Court on the issue.
“In Action Congress & Anor. v. Independent National Electoral Commission (2007) 6 S.C. (Pt. II) 212 at pages 229 to 231; (2007) 12 NWLR (Pt. 1048) 220, this court per Katstina-Alu, J.S.C observed:
“It was also contended for the defendant that the ground of disqualification in section 137(1) is self-executing. I am not impressed by this contention. I think a dispassionate reading of the provision will reveal that it is not self-executing. To invoke against any candidate the disqualification therein provided would require an inquiry as to whether the tribunal or administrative panel that made the indictment is of the nature or kind contemplated by section 137(i) read together with other relevant provisions of the Constitution in (i) particular section 36(i), which provides that:-
“in the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality”
as well as the provision in subsection of section36 that –
“every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”
The disqualification in section 137(1)(i) clearly involves a deprivation of right and a presumption of guilt for embezzlement or fraud in derogation of the safeguards in section 36(1) and of the Constitution. The trial and conviction by a court is the only constitutionally permitted way to prove guilt and therefore the only ground for the imposition of criminal punishment or penalty for the criminal offences of embezzlement or fraud. Clearly, the imposition of the penalty of disqualification for embezzlement or fraud solely on the basis of an indictment for these offences by an administrative panel of inquiry implies a presumption of guilt, contrary to section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999. I say again that convictions for offences and imposition of penalties and punishments are matters appertaining exclusively to judicial power. See Sofekun v. Akinyemi (1980)5-7 SC (Reprint) 1; (1981) 1 NCLR 135; Garbav. University of Maiduguri (1986) 1 NWLR (Pt.18) 550.”
An indictment is no more than an accusation: In Sokefunv. Akinyemi (supra) this court per Fatayi-Williams, CJN saidat page 146 as follows:-
“It seems to me that once a person is accused of a criminal offence, he must be tried in a court of law’ where the complaints of his accusers can be ventilated in public and where he would be sure of getting a fair hearing … No other Tribunal, Investigating Panel or Committee will do …. If regulations such as those under attack in this appeal were valid, the judicial power could be wholly absorbed by the Commission (one of the organs of the Executive Branch of the State Government) and taken out of the hands of the magistrates and Judges… judicial power will certainly be eroded … The jurisdiction and authority of the courts of this country cannot be usurped by either the Executive or the Legislative branch of the Federal or State Government under any guise or pretext whatsoever.”
The indictment of a candidate aspiring to the office of Governor is governed by section 182(1)(i) of the 1999Constitution which provides:-
“182(1) No person shall be qualified for election to the office of Governor of a State if –
He has been indicted for embezzlement or fraud by a Judicial Commission of Inquiry or an Administrative Panel of Inquiry or a Tribunal set up under the Tribunals of Inquiry Act, a Tribunal of Inquiry Law or any other law by the Federal or State Government which indictment has been accepted by the Federal or State(i)Government …”
Section 182(1)(i) above is in the Constitution in order to ensure that only persons of impeccable character and integrity are eligible for the office of a Governor of a State. It is to ensure transparency and high standard of probity in governance. It is not to be used as an instrument by politicians to hinder the emergence of their opponents or adversaries as Governors. Regrettably, the said provision has been used to witch-hunt and victimize. It is a provision which in its application must be read and construed along with other provisions of the 1999 Constitution in section 36 (1), (2), (3), and which provide:-
“36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.
(2) Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person (2) if such law –
(a) provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority
(b) before that authority makes the decision affecting that person; and contains no provision making the determination of the administering(b)authority final and conclusive.
(3) The proceedings of a court or the proceedings of any tribunal relating to the matters mentioned in subsection of this section (including the announcement of the decisions of the court or(3)tribunal) shall be held in public.
(4) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal …
(5) Every person who is charged with a criminal offence shall be presumed to be innocent until(5)he is proved guilty:
Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.”
It is not a simple matter to find a citizen of Nigeria guilty of a criminal offence without first ensuring that he is given fair trial before a court of law. A judicial commission of inquiry or an administrative panel is not the same thing as a court of law or its equivalent. Because a court of law operates within a judicial hierarchy any person wrongly convicted is enabled to contest his conviction to the Supreme Court of Nigeria. This is a right granted by the Constitution of Nigeria. It has not been curtailed or abridged by section 182(1)(i)above. It seems to me that section 182(1)(i) only enables a Judicial Commission of Inquiry or administrative tribunal to determine the culpability of a citizen where it is alleged that such citizen has been in breach of the standards of behaviour expected in public life. Where such Inquiry or tribunal finds a citizen liable or culpable of a conduct bordering on criminality, and the Federal or State Government accepts such report through a published white paper, it is still not good enough to deny a citizen eligibility to the office of Governor unless and until he is afterwards prosecuted in a court of law and found guilty. This approach in my view is buttressed by section 182(2) of the 1999 Constitution which provides:-
“182(2) Where in respect of any person who has been:
(a)adjudged to be a lunatic;
(b)declared to be of unsound mind;
(c)sentenced to death or imprisonment; or
(d)adjudged or declared bankrupt,
an appeal against the decision is pending in any court of law in accordance with any law in force in Nigeria, subsection of this section shall not apply during a period beginning from the date when such appeal is lodged and ending on the date when the appeal is finally determined or, as the case may be, the appeal lapses or is abandoned, whichever is earlier.”
It is simply impermissible under a civilized system of law to find a person guilty of a criminal offence without first affording him the opportunity of a trial before a court of law in the country. See also article 7(1)(a) of the African Charter on Human Rights, Cap. 10, Laws of the Federation. The court below would appear not to have paid heed or attention to the reasoning of this court in Action Congress & Anor. independent National Electoral Commission (INEC) (supra) incoming to the conclusion that Amaechi was indicted. Indeed, Amaechi needed not have asked his supposed indictment to be set aside by Kuewumi, J., since the same was not in any case cognizable under the law. No court of law ought to pay any iota of regard to such alleged indictment.
Another matter deserves to be mentioned here. The EFCC is a statutory body created under the Laws of Nigeria. Its duties include the investigation and prosecution of a class of criminal offences. In essence, once its investigation has shown prima facie that a person has committed a criminal offence, the duty of EFCC is to have such offender prosecuted in a court of law. I know of no provision of the law which enables EFCC upon the conclusion of investigation in a criminal case to send the report or case file to either the Federal or State Government. I am surprised therefore to see that INEC pleaded that Amaechi was indicted by EFCC and that the report on the indictment was accepted by the Federal Government. That procedure is not backed by any law in force. Indeed, it is a subversion of the law and an unconcealed attempt to politicize the investigation and prosecution of criminal offences.”
Dear Delegates remain focused. Do not let them deceive you.
