Based on the morally appalling and highly objectionable facts of Mohammed Abacha’s and Mustapha’s cases referred to by Mr. Femi Falana, there is nobody who is in love with moral decency and the need to brutally end the era of impunity that will not support the philosophical and historical rationalities behind sections 306 and 369 of the Administration of Criminal Justice Act.
But the question is, must the sections be made to apply to all criminal cases or only to corruption cases? Honestly, I think the applicability of ACJA should be limited to corruption related cases. As to do otherwise will be to throw away the baby with the bath water. Otherwise, the no-stay principle becomes an albatross on the statutory, appellate and supervisory jurisdiction of our superior courts. This particularly affects the power of the appellate Court to correct errors (latent and apparent) on the face of the records of the lower courts particularly those lower courts’ proceedings that are inflicted with jurisdictional and fair hearing viruses.
Furthermore, can anything in ACJA oust the clear constitutional and judicial powers under sections 6 and 36 of the constitution? Come to think of it, are sections 306 and 369 of ACJA not an affront on section 4(8) of the 1999 Constitution as amended, a section which categorically forbade the National Assembly from passing any legislation that bars the courts from exercising their constitutional jurisdiction. In other words, the collective constitutional purposes of sections 4(8), 6 and 36 of the constitution is not only to serve as a barometer against any legislative excesses but a frontal check on the powers of the legislature in Nigeria. Hence, the Principle of Judicialism is not a load the legislature can lightly toy with except it wants its fingers burnt.
The inherent powers of the superior court, nay appellate courts, to do justice cannot be subsumed or watered down by an inferior legislation like the ACJA, otherwise, the discretionary powers, as an adjunct of judicial powers constitutionally guaranteed becomes meaningless.
Way out? Rather than blame the Supreme Court by shedding crocodile tears over a stay or no stay, we should stop putting the cart (sections 306 and 369 of ACJA) before the horse (sections 6 and 36 of the constitution). Let our jobless National Assembly members who are busy embarking on personal aggrandisement of constitutional amendment remember to amend sections 6 and 36 of the constitution to include the loudly proclaimed objectives intended by sections 306 and 369 of ACJA.
In other words, the National Assembly should do what it did in respect of electoral matters wherein the Supreme Court was constitutionally (I repeat, constitutionally) barred from entertaining appeals from the Court of Appeal in respect of election matters. Anything short of this will not only amount to more crocodile tears, social misery but an exercise in constitutional futilities. Refer Musa v INEC (2003) & Kolawole J in Fresh Democratic Party V INEC (2013)
PUNCH
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