By Emmanuel Onwubiko

“If your desire is for good, the people will be good”- Confucius  (551-479 ACE)

Law making in any modern and even ancient democracy is key to guaranteeing good governance and the assurance of sustainable development in human society.

Scholars of modern law theories say that there are many purposes served by the law. Out of these,  the main four are to maintain order; establishing standards; protecting liberties; and lastly, resolving disputes.

Additionally, law is in place to protect individual rights and liberties. To become a significant law maker can therefore be compared to description made by Confucius thus: “He who governs by the means of his virtue is like the pole star: it remains in its lesser place  while all the star do homage  to it.”

Conversely, lawyer and educator by name Lloyd Duhaime  defines law  as “conduct approved and enforced by the government and over a certain territory. McGill university law teacher and author Wendy Adams defines law as  “a mechanism for facilitating and regulating interaction between autonomous entities”.

“Law is used to refer to legislation- for example, the civil Rights Act of 1964 and other anti- discrimination legislation.

Common law is described as “Judge-made law” since it is based on precedent or prior court rulings”.

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The simple reason for this reflection is to point out that what makes a person significant  is the value such a person adds  to the collective interests and public good of the society. This is moreso very significant in the context of Nigeria which is the largest black democracy in the World. 

Nigeria as I write is not in the best of times due largely to crass lawlessness by a whole lot of persons in both governmental and non governmental status. Lawlessness amongst supposed law enforcers is the reason for the breakdown of law and order witnessed during the nationwide protests by Young Nigerians who advocated the abrogation of certain unlawful practices of the police including the use of extrajudicial execution of suspects and brutality that is adopted by police operatives in carrying out their duties.

It is for the wanton breach of good governance standards by public office holders majorly as embedded in the procurement laws, that corruption has become a very disturbing phenomenon.

Therefore, the place of law making machinery in Nigeria is of the highest essence and to attain the lofty heights put in place by the Grund Norm regarding the duties of law making bodies such as the State and national Assemblies, Nigeria needs to have elected legislators of significance who would embrace their national assignment as inviolable and sacred.

Nigeria’s currebt session of the NATIONAL Assembly which is the ninth is not without some Senators of significance just like previous sessions when Nigeria saw the likes of Senators Joseph Wayas, Chuba Okadigbo, Anyim Pius Anyim, Ken Nnamani, Bukola Saraki amongst others. 

The subject matter of our reflection today however is the Senate’s Chief whip and the representative of the good people of Abia North Senatorial Zone of Abia State who was for eight years the governor of Abia State -Senator Orji Uzor Kalu. 

Senator Orji Uzor Kalu reminds me of the illustrious lawmaker called Solon, the Athenian politician and lawmaker: Solon (638-558 BC) was an Athenian politician, lawmaker and poet. He is considered as the first innovative lawmaker that set the ground for the creation of democracy, the governmental system that made Athens powerful and granted the city its fame all over the centuries. Although his reforms lasted for short in his time, he laid the foundations for the economic, cultural and military development of the town.

Solon was born into a noble family in 638 B.C. He was a merchant by profession and a poet. In 594 BC, he was elected an Archon, kind of governor, in ancient Athens. That time, the society of Athens was facing an economic and moral depression due to an agricultural crisis. Farmers could not repay their debts to the wealthy landowners and in return they were sold as slaves, including their wives and children.

He, Senator Orji Uzor Kalu has often been described as a Senator of  signicance by leading political stakeholders including the Senate president senator Ahmed Lawan who rejected all the pressures mounted on him to declare the seat of Orji Uzor Kalu vacant during his six months of illegal incarceration by the Federal High Court which was voided by the Supreme Court of Nigeria. 

The Senate President said the vacant seat and position reserved for Orji Uzor Kalu’s during his time in jail was defended by Senate President, Dr. Ahmad Lawan thus demonstrating how significant Senator Orji Uzor Kalu is to the overall law making machinery of Nigeria. 

Lawan told Abia State leaders about the fact that the Senate’s efforts to preserve Kalu’s seat and position were not unusual.
At the National Assembly in Abuja the delegation of thought leaders appreciated the Senate and its leadership for demonstrating their concerns about Kalu during his prison term.

Kalu was the Senate Chief Whip when a Lagos court convicted him of fraud committed between 1999 and 2007, and sentenced him to 12 years in prison in December 2019.

Kalu spent six months in jail until he eventually returned to the Senate following the judgment of the Supreme Court, which overturned his conviction on the grounds that the trial judge lacked competence.
Lawan said, “There was no way anyone in the Senate could convince us that someone should sit in Abia North because it was not vacant.”

He (Kalu) was in many appeals and this seat remained his seat until he had exhausted all possible opportunities.
We didn’t even name an acting Chief Whip, like the Chief Whip. Until he was released, Deputy Chief Whip continued to play that role.

Naturally, we came under pressure. Nevertheless, we felt that the best thing to do was to hold his position, before his decision was reached.

Its seat vacancy or position would have been premature, unfair and unfair because it was in that situation.

So, we really did nothing unusual. We’ve done what’s right, just, what’s needed.
The Senate President praised the leaders for their union and understanding amongst them and their support in his speech on the bi-partite composition of the group.
I have not seen or heard for a long time the kind of unity, understanding.

Our people need us to show leadership to them. You need good governance from us. You want better life and you have a lot of business people, particularly in the state of Abia. We want their companies to expand and do well.

If the members are aligned, it makes the following much easier to remain together and cooperative, so that it is very possible to hit the promise land, “said Lawan.
Senator Chris Adighije, head of the delegation, said that the visit would benefit the senate and lead the ex-Governor in his concerns.

Ndighije said, “We want to thank the Senate for that. It’s something that is greatly appreciated by the entire Abia State and the South East Indeed.”

Senator Orji Uzor Kalu immediately went to work and made significant contributions to many debates in the Senate which are all aimed at building a nation where justice, peace and progress will reign supreme.

He has also presented a significant bill to make Administration of Criminal Justice much more humane and lawful. 

A bill seeking to amend the Administration of Criminal Justice Act (ACJA) has already passed second reading at the senate.

“The bill sponsored by Orji Uzor Kalu, senate chief whip, is seeking to make the law more “effective and more humane”.

The bill passed first reading at the upper legislative chamber in July 2020 about a month after he was released from prison.

The former governor of Abia state was released from the Kuje Correctional Centre on June 2, 2020. He had spent five months in prison.

In December 2019, a federal high court in Lagos convicted the chief whip of money laundering to the tune of N7.1 billion. This judgment was built on mischief. 

No wonder, on May 8, 2020, the supreme court nullified the conviction of Kalu on the grounds that Mohammed Idris, the trial judge, did not have jurisdiction to hear the matter since he had been elevated to the court of appeal.

While leading a debate on the legislation, the senator said there are sections in the Act that contradict the principles of fair hearing and court jurisdiction as provided for in the constitution.

He said: ”That section 8 (4) of the principal act which provides ‘the arraignment and trial of a suspect for a crime shall be in accordance with the provision of this act unless otherwise stated in this act be amended by deleting ‘unless otherwise stated in this act’ by inserting ‘and the constitution of the federal republic of Nigeria.’

“The constitution should be read together on provisions with establishment, composition and jurisdiction of courts.

“We can still set lofty goals for ourselves. I hope we can agree that, with this amendment, we aspire to create a criminal justice administration legislation that is both more effective and more humane.

“By ‘more humane’ I mean we should respond to crime in ways that recognise the humanity of those victimised by crime, those arrested and convicted of crime, and others who experience the ripple effects of crime and our justice system.”

On his part, Gabriel Suswam, senator representing Benue north-east, said many states are yet to domesticate the ACJA.

“When the judges had a conference here recently, some came to see me. And their complaint was about the ACJA,” he said.
“Most of the states have not domesticated the act.”

The bill passed second reading after it was put to a voice vote by Senate President Ahmad Lawan.

Relatedly, the bill for the amendment of the Administration of Criminal Justice Act (ACJA) to create a criminal justice administration legislation that is more effective and humane has been commended by stakeholders, including government agencies and civil rights organisations, among others.

The bill is sponsored by Chief Whip of the Senate, Dr Orji Uzor Kalu. While applauding the motive of the bill and its sponsor, stakeholders at Wednesday’s public hearing also presented their recommendations to some provisions of sections of the proposed amendment of the Criminal Justice Act.

The public hearing of the bill entitled, ‘Administration of Criminal Justice Act 2015 (Amendment) Bill, 2020 (SB: 465) organised by the Senate Committee on Judiciary, Human Rights and Legal Matters; and Anti-Corruption and Financial Crimes, had several Federal Government security agencies in attendance. They include the Nigerian Correctional Services (NCS), the Nigerian Navy, National Security Adviser (NSA), Nigerian Immigration Services (NIS), Nigerian Air Force (NAF), the Economic and Financial Crimes Commission (EFCC) and others.

In his presentation on the legislative proposals, Chief of Army Staff, Lieutenant General Faruk Yahaya commended the motive. He however sought the replacement of some words in Section 14 (3) of the ACJA. General Yahaya who was represented by the Nigerian Army’s Director of Legal Services, Major Mahmood Wambai, suggested that the words “shall be done in the presence of” in Section 14(3) of ACJA should be replaced with “may be done within the sighting distance of.

He stressed that this would give the detaining officer the power to determine the circumstances to permit unrestricted communication between the detainee and any other person.

He added that it would also aid the use of eavesdropping devices during such communications.

He said: “The circumstances here could include the nature of the allegation against the detainee, his/her criminal history and the status of the visitor.”

On the amendment to Section 17, subsection 3, the Army opposed the inclusion of a new paragraph which reads “such an interpreter shall be at the instance and choice of the suspect held in custody.

The Army held that it is always the constitutional responsibility of the state to provide an interpreter in all proceedings where a suspect does not understand the language of the court, stressing that the responsibility should not be shifted to the suspect who could end up choosing an interpreter that may do his/her bidding.

Making further recommendations the Nigerian Army also sought another inclusion to the proposed amendment to Section 172 of ACJA which seeks to add the words; “either orally or by a motion on notice “ before the words; “on application to court “. The Army suggested that the following words could be added; “subject to the discretion of the Judge” after the proposed amendment. 

This according to the COAS will confer on the judge the powers to direct that such application shall be on notice in appropriate cases.

Lauding the initiative to amend the ACJA, the office of the National Security Adviser (NSA), Gen Babagana Monguno described the amendment as a welcome development. He was represented by his spokesperson, Zakari Usman.

The Nigerian Correctional Service in a submission by its Controller-General, Haliru Nababa applauded the proposed legislative amendment to the ACJA. In its submission the NCS agreed with the amendments Sections 8(4), 14, 17, and 162.

Haliru, who was represented by a top official of the NCS at the public hearing, however opposed the amendments to Sections 223 and Section 229. He maintained that the section does not infringe on the principle of fair hearing. 

He said: “It does not in any way make the hearing time unreasonable, and has not interfered with the independence and impartiality of a court or other tribunal established by law.”
On its part, the Nigerian Navy disagreed with the deletion of Paragraph 6 section 223 and 229.

Chief of Naval Staff , Vice Admiral AZ Gambo, who was represented by Navy’s Director of Admin, Rear Admiral Kennedy Egbuchulam stated that the section of the ACJA proposed to be deleted has similar provisions in Sections 226(6) and 142 of the Penal Code Act and Armed Forces Act Laws of the Federation of Nigeria respectively.

The paragraph 6 of the bill is seeking to delete the provisions of Sections 223 and 229 of the Administration of the Criminal Justice Act (ACJA) 2015.

It reads that: “Where a defendant is charged with one offence and it appears in evidence that he committed a similar offence with which he might have been charged under the provisions of this Act, he may be convicted of the offence, which he is shown to have committed, although he was not charged with it,” and “where a defendant is charged with an offence relating to property and the evidence establishes the commission by him with respect to the same property of another offence, he may be convicted of that other offence although he was not charged with it.”

According to the Nigerian Navy, the intention of the above provisions is that an accused person can be convicted for similar or kindred offences based on evidence on record. Gambo said the extant provisions of the ACJA which was being proposed for deletion do not constitute a breach of the right of fair hearing of an accused person.

 
Rendering special commendations to the bill’s sponsor, Senator Orji Uzor Kalu, Centre for Socio-Legal Studies described the proposed amendments sought by the bill as highly laudable and commendable.

In a speech read by the centre’s President, Prof Yemi Akinseye – George (SAN), he said the bill’s amendment would address the emerging developments and judicial pronouncements on some of the provisions of the extant Act “as it is intended to address the aspect of concern noticed in the course of implementing the Administration of Criminal Justice Act 2015.”.

Earlier in his remarks, sponsor of the bill and Chief Whip of the Senate, Orji Uzor Kalu, said the legislative proposal seeks to amend in the Administration of Criminal Justice Act of 2015, the sections contradicting the principles of fair hearing and court jurisdiction as provided in the Constitution. This, he said, is to avert some loggerheads between the Administration of Criminal Justice Act and the constitution.

Kalu, who was represented at the event by Senator Abdu Kwari, maintained that the nation’s constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.

Kalu emphasised that in line with the provision of the constitution, all authorities in Nigeria shall conform to the constitutional provision.

“Therefore the Administration of Criminal Justice Act shall conform with the supreme provision of the 1999 Constitution as amended.
 

“Each legal norm of the society derives its validity from the basic norm. Any other law that is inconsistent with the provisions of the constitution must give way or abate.”

“The court has also held that- ‘The constitution of a nation is the ‘fons et origo’ not only of the jurisprudence but also of the legal system,” Kalu said.

The former governor of Abia State said the various High Court Rules and Court of Appeal Rules have provisions with regards to the position of pending cases when judges are elevated, adding that more often the position is for the matter to start de novo.

He added that although the constitution says in Section 252(2) that the National Assembly will by law make provision conferring upon the Federal High Court additional powers to those conferred by the Constitution, there exists a lacuna in respect of the position of an elevated judge from the High Court to the Court of Appeal (that is there is a gap that needs to be filled).

Said he: “It will be advisable that the Act be amended to expressly handle the gap created when judges are elevated to the next bench, by being given the right or powers to conclude part-heard cases before moving to the next level.

“Our judicial system recognizes and applies the rule of stare decisis, meaning rules of precedent and hierarchy of courts. More so, our courts are classified according to the constitution and other extant laws. We should clearly demarcate or clearly spell out jurisdiction of court to avoid contradiction and uncertainty.”

Explaining further, the Senate Chief Whip reiterated the aspiration of the legislative amendment to create a criminal justice administration legislation that is both more effective and more humane.

His words: “By ‘more effective,’ I mean that we should respond to crime in ways that produce socially desirable results—greater safety, less fear, less suffering, greater respect for the rule of law and less injustice—and that we do so efficiently, investing our precious financial and human resources in ways that maximize the results we desire.

“By ‘more humane,’ I mean we should respond to crime in ways that recognize the humanity of those victimized by crime, those arrested and convicted of crime, and others who experience the ripple effects of crime and our justice system.

“This affirmation of humanity, as I see it, incorporates values we hold dear in our democracy, such as equal protection of the laws, access to the rights guaranteed by our constitution, and our fundamental belief in the dignity of the individual.”

The ACJA Amendment Bill passed First Reading on June 30 2020. It also passed the Second Reading on December 8 2020.

In conclusion, the significance of Senator Orji Uzor Kalu’s significant proposal on the Administration of Criminal Justice Act, is so the constitutional democracy in Nigeria can be strengthened and so the best global practices are observed in law enforcement. 

The action of Senator Orji Uzor Kalu is reminiscent  of the profound thoughts of a leading thinker in history who wrote thus: “No free man shall be seized, imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”

Implicit in the barons’ demands was the Concept of habeas corpus. This requires that a person under arrest be brought before a court and protects individuals from arbitrary abuse of power.” (By Barons of King John (Early 13th Century).

 
*Emmanuel Onwubiko is a political and media strategist based in Abuja, Nigeria.

Siurce: StreetReporters.ng