Professor Bankole Sodipo is a former Dean, Faculty of Law, Babcock University, Ilisan Remo, Ogun State. In this interview with AKEEM NAFIU, he speaks on why the National Assembly should initiate impeachment proceedings against President Muhammadu Buhari, insecurity, June 12 declaration as Democracy Day, Administration of Criminal Justice Act (ACJA) 2015, and sundry issues
With the unending killings going on in the country and the general security challenge, will you be surprised if the National Assembly invoke Section 143 of the Constitution to remove the president from office?
By insecurity, I guess you mean the wanton killings and kidnappings particularly by insurgents such as Boko Haram and people around the riverine area by the herdsmen who have cows which are not worth more than one million naira but are carrying guns worth more than four million naira to protect the cows of one million naira.
The insecurity is worrisome particularly because the president is an owner of herds and cattle. He is a stakeholder even in the association of owners of cattle and he has made some pronouncements that make people feel that he supports the reckless, illegal and unconstitutional act of the herdsmen.
Section 143(11) defines gross misconduct which you ask me as a grave violation of the Constitution or a misconduct of such nature as amounts to opinion to the National Assembly to gross misconduct. So, breach of the constitution is a grave misconduct if the National Assembly says we feel this is gross misconduct of the constitution.
The Constitution in Section 130 empowers office of the President to be the Chief Security Officer, he is the Head of State, Commander- in-Chief and it means that the security apparatus of Nigeria is controlled by him. Therefore, not attending promptly, not ensuring that the persons who are doing these things are arrested, prosecuted, imprisoned, charged to court, sentenced, fined, not ensuring that the guns are seized, not setting up tribunals that will quickly deal with this matters, could be said to be a breach of the Constitution. As such, I will be calling on the president to deal with this situation otherwise, he may open up himself for the National Assembly moving to impeach him.
I pray and I hope that the National Assembly will not do this, but I urge the president to do his duty. I end with a note of caution.
The International Criminal Court can pick him up, charge him and imprison him after he leaves office, even when he is in office, if he doesn’t deal with the security situation. Even if he is not worried about the National Assembly in the sense that, in case it is controlled by his party machinery, the ICC can come after him. I did allude to his meeting with Trump, remember Trump said he is not happy about the killings going on. So, there are many people watching internationally and it is only friends of the president like myself that can warn him about this. They are setting him up big time. He needs to sort that out otherwise, anything can happen.
What is the legal implication for June 12 declaration as democracy day?
Has the President made June 12 a public holiday? Or he has merely pronounced June 12 as democracy day? There’s a law that governs public holidays. So, the president must comply with the law that governs public holidays. To make a pronouncement would not be sufficient. The president, although has powers to sign laws, it is the National Assembly that make laws.
What I imagine is that yes, a declaration can be made and then he can push the legal machinery through the National Assembly. Until that is done, it remains a declaration.
The other legal implications too maybe on whether May 29 has been annulled as democracy day? Are we going to have two democracy days? The president needs to clarify that. The president must be mindful of the fact that he should not be adding to his number of days as president.
He took over power on May 29, is he not going to hand over power on May 29 and if he is not, should there not be a law that backs or changes that tradition? That is the problem that I see. If that is what he wants to do, then let him do it in a way backed by law because it has implications.
In what way would you say the abolition of technicalities in Administration of Criminal Justice Act (ACJA) 2015 has enhanced justice system in the country?
The Administration of Criminal Justice Act (ACJA) 2015 is a wonderful piece of legislation because it aimed to do a lot. It is not yet seen whether it will achieve all that it is aimed to do.
The Supreme Court per Niki Tobi has said stay of proceedings is a serious, grave and fundamental interruption on the right of a party to conduct his litigation on the basis of merit of his case. So, stay of proceedings is not something that should be treated lightly.
However, the law as established by the cases is that once you approach a trial court and the trial court says I’m not staying proceedings and you have appealed with the papers transmitted to the Court of Appeal and entered, the trial court does not have powers to continue. What the Administration of Criminal Justice Act has done in Section 306 categorically is that it says an application for stay of proceedings in respect of a criminal matter before the courts shall not be entertained which suggest that the court should not entertain any application for stay of proceedings in any criminal trial.
You will recall some criminal trials that took about 14 years when we came back to democratically elected governance in 1999, Al-Mustapha in particular. Those kinds of things cannot happen again. We cannot use interlocutory appeals to delay matters. Now, some judges would say yes, there is a statute but then the Supreme Court has held that once an appeal has been entered, I should hands off, they may not be bold enough, we will need to see the Supreme Court interpret that to say yes, last year or previously we have said that this is the law, but because of this Act, it is no longer the law.
Many judges may not be bold enough and they may be rightfully say, sorry, the Supreme Court has already said it even though the law has been passed, let the Supreme Court reverse and authorize me to continue proceedings rather than to continue and then it goes on appeal and they would say that’s judicial rascality. Hopefully, stay of proceedings will no longer be used in criminal trials particularly in federal capital territory courts where this law was immediately enforced upon enactment.
Can the Supreme Court reverse itself on any matter it had already made pronouncement?
Of course, the Supreme Court has the powers to reverse itself and it has done so previously. When I say the Supreme Court reverses itself on this matter, the Supreme Court, like I said on tenure of cases is that once an appeal has been entered at the Court of Appeal even though the trial court has said it is not going to stay proceedings, it must stopped because it no longer has jurisdiction otherwise, the issue to be adjudicated upon at the Court of Appeal, the trial court could make nonsense of it and destroy the ‘res’. That is, the main essence of the case can be destroyed. Once it has gone to the higher courts, just hands off. That is the principle the Supreme Court established.
Now, this Act now says that application for stay shall not be entertained. The point I’m making is that some judges could just say that the Act has changed the law, but I am bound by authority of the Supreme Court. Unless the Supreme Court interprets it and say in criminal trials, all we have said before which is the law, is no longer the law because it has been changed by this Act, then there can be a problem.
The dust generated by the police invitation of the Senate’s President, Dr. Bukola Saraki over the Offa robbery incident is yet to settle. How do you view the whole drama?
Well, it is rather unfortunate. Allegations of crime can be made against anybody but this does not mean the person has committed the crime. The Constitution is very clear on that and so care must be taken when such allegations are made particularly on a very highly revered citizen of Nigeria.
However, nobody is above the law, although the Constitution seeks to protect some people, and so the Constitution in protecting some people, specifically remove some people from possible litigation. The Constitution itself that does this is specific in the sense that it does not list the senate president as one of those that has immunity.
Section 308 of the Constitution says no civil or criminal proceedings will be instituted against the persons who are listed and the persons listed in Section 308 are the president, the vice president, the governor or deputy governor when they are in office. It does not mean you can’t proceed against them, it means that we want to protect that office but when they leave office you can proceed against them.
So, unfortunately the Constitution does not list the senate president as one of those who enjoys immunity. However, the Legislative Powers and Privileges Act, gives immunity to the members of the National Assembly. The immunity is for things that happen in the National Assembly. It says no civil or criminal proceedings will be instituted against the members of the National Assembly for the words spoken in the National Assembly.
If for instance, a member of the National Assembly steals in the National Assembly, that immunity does not protect him. They only have immunity in doing their functions so that they can make laws, say things freely like freedom of expression in the National Assembly for resolution, bills, motions and so on. Unless the senate president quickly passes a law that he has immunity and if he is going to pass a law, the president must sign it. It is doubtful the president will sign such a law.
The police have power to investigate, they have powers to arrest but I’m concerned that the IGP too is not above the law. It’s been reported, maybe falsely but it’s been reported that he too does not want to come to the National Assembly to answer questions but he wants to prosecute the senate president. I don’t know whether it’s a set up or not.
I think nobody is above the law. The senate president should submit himself to interrogation and the IGP should submit himself to the National Assembly when he is called upon, otherwise, we will make a mockery of the whole system and once we make a mockery of the whole system then the whole system will fall apart and that’s my worry. I’m seeing the strands of mockery, signs of a tsunami against the whole system and people are toying with fire, toying with the existence of Nigeria. I called on the IGP to submit himself to the National Assembly. I also call on the senate president to submit himself to the police. However, if there is no proof, let the matter go quickly so that we save ourselves from embarrassment and save the national polity from this grave incident that is occurring.
Media parade of suspects by the police before trial is becoming the norm in the country. Would you say it is lawful? We do a lot of things which we think we should do in doing our work, sometimes when we’re challenged, we then discover maybe it is not right. Police shoot, maim and beat up people, but when they are challenged, they now see they are not supposed to. There’s presumption of innocence and because of presumption of innocence, unless you’ve been tried, it is not right to be parading people. You parade them today as suspects if you try them tomorrow and you’re not able to establish, either because they have smart lawyers and raise technical points or, because you didn’t do your homework well as police, not that they didn’t do what was wrong or whether they did not do it, do you now parade them again and say these people were wrongly paraded?
If you do that, do you also pay them because people have seen the names, they have seen the faces and they have been ridiculed publicly? That’s why in foreign reports, they blocked eyes and the faces of people. That’s what we need to do in Nigeria. It’s just in a bid to play to the gallery that this has been done and it’s not right, it is unconstitutional.
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