After spending some months in prison, Senator Orji Uzor Kalu is now free again; at least for now.
Senator Kalu, a former governor of Abia state, had been sentenced to 12 years in prison in December 2019. The Federal High Court in Lagos found him guilty of N7.65billion ($19.6m) fraud.
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He was said to have misappropriated the public fund while he was the governor of Abia between 1999 and 2007, through his company, Slok Nigeria Limited.
His conviction in 2019 was celebrated as one of the high profile cases successfully prosecuted by the Economic and Financial Crimes Commission (EFCC).
While in prison, Senator Kalu, who was representing Abia North in the Senate before his conviction, appealed the sentence. He lost at the appeal court and subsequently proceeded to the Supreme Court, Nigeria's apex court.
On Friday, May 8, Senator Kalu got a favourable judgement that took him out of the prison, at least for the meantime.
The Supreme Court set aside the court judgment that sentenced him to 12 years in prison. The decision of the apex court which nullified the conviction was unanimous: all the Supreme Court justices on the seven-man panel agreed to nullify Kalu's conviction.
The panel was led by Justice Amina Augie.
How did this happen? Why did the Supreme Court nullify Kalu's conviction?
The simple answer is lack of jurisdiction. So, it is another case of placing technicality over merit.
According to the apex court, the judge who convicted Senator Kalu lacked the power to do so.
Who was the judge and why did he lack the power to sentence the former governor?
Justice Mohammed Idris was the one who convicted Kalu.
Note that the trial of Kalu had stalled for many years.
Thus, Justice Idris who was hearing the suit as a judge of the Federal High Court had been elevated to the Court of Appeal while the trial was still dragging.
Having been elevated to the appeal court, Justice Idris ought to have dropped the suit as he lacked jurisdiction to continue the trial at the Federal High Court.
However, the president of the Court of Appeal issued fiat to Justice Idris to continue to hear the suit.
This is where the Supreme Court came in: Justice Idris lacked the constitutional power to hear the hear case. This is the main reason why the conviction was declared null and void.
What of the fiat issued by the president of the Court of Appeal?
Nigeria's constitutional lawyer and human rights activist, Inibehe Effiong, explained that "Section 396 of the Administration of Criminal Justice Act (ACJA) that empowered the President of the Court of Appeal to give fiat to elevated federal judges to continue to hear and determine part-heard cases is in conflict with the Constitution."
Effiong explained that the hierarchy of courts was created by the constitution.
"The moment Justice Idris subscribed to his oath of office as a Justice of the Court of Appeal, his office/former oath as a judge of the Federal High Court became extinct in law. A judicial officer can't function in two courts," the lawyer explained.
Inibehe submitted that by the ruling, the Supreme Court affirmed the supremacy of the constitution.
Simply put, since Justice Idris has been elevated to the Court of Appeal, he lacked the constitutional power to continue to sit over cases at the Federal High Court.
This is why his verdict was declared null and void.
The way forward: Retrial
After nullifying the verdict, the apex court ordered a trial of Senator Kalu.
What this means is that the prosecution, the EFCC, will have to begin the trial afresh under a judge who has jurisdiction.
In conclusion, Senator Kalu and the EFCC are back again in court. If the EFCC is able to secure a conviction again, the former Abia governor will still proceed to prison to spend whatever terms specified by the judge.
If the EFCC fails to secure a conviction, Senator Kalu becomes free from the corruption allegations.
Kalu reacts to his (temporary) victory
Senator Kalu has described his Supreme Court victory as justice for truth. He said his victory indicated that there is trust in the judiciary.
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