Continued from part 1. (How the Supreme Court wrongly freed Bode George & co. 1)
It is submitted, without any fear of contradiction, that the appellants were not charged for contract splitting by the Economic and Financial Commission but for “abuse of powers” and “disobedience of lawful order” contrary to sections 104 and 203 of the Criminal Code of Lagos State respectively. In summarising the unassailable judgment of the learned trial judge, Clara Ogunbiyi JCA (as she then was) had, in her lead judgment, said that the appellants were arraigned “on 68 counts of offences bordering on inflation of contracts, conspiracy to disobey lawful orders and abuse of office…”
Since both Sections 104 and 203 have been part of the Criminal Code as far back as 1914, it is unbelievable that the Supreme Court held that the appellants were charged under an unknown law. The crime of disobedience to lawful order by splitting contracts was not unknown before the enactment of the Public Procurement Act, 2007. In the instant case, contract splitting was a particular of the offence and not the offence alleged against the appellants. But for some inexplicable reasons, the apex court substituted the particular for the offence and arrived at a wrong conclusion. Curiously, the Supreme Court conveniently ignored the finding of the Court of Appeal that the appellants violated Sections 104 and 203 of the Criminal Code when they awarded contracts beyond their approval limits which was “borne out by evidence from all the witnesses on both sides.”
Although it has been established in a plethora of cases decided by the Supreme Court that an appellate court has no power to disturb the finding of a lower court which is not challenged on appeal, for reasons best known to the apex court, it decided to depart from the settled principle of law in discharging and acquitting the appellants. From the record of appeal, it is indisputable that the Court of Appeal had unanimously agreed with the prosecution that the intention to defraud the nation was proved beyond reasonable doubt by the conduct of the appellants who consistently approved contracts of several billions of naira beyond their approval limit. There was not a single ground of appeal that attacked that particular crucial finding of the lower court. Yet, the Supreme Court decided, albeit illegally, to tamper with the finding of the court below and proceeded to hold that the prosecution failed to prove the guilt of the appellants.
The most embarrassing aspect of the judgment was that the Supreme Court annulled two provisions of the Criminal Code of Lagos without hearing from the Attorney-General of Lagos State in line with established practice. With profound respect to their Lordships, there is no legal justification whatsoever for declaring Sections 104 and 203 of the Criminal Code illegal and unconstitutional. No doubt, the attention of the apex court was not drawn to the undeniable fact that Section 104 of the Criminal Code is in pari materia with Section 9 of the Code of Conduct for Public Officers set out in Part 1 of the Fifth Schedule to the constitution which has created the offence of abuse of power. Therefore, Section 104 of the Criminal Code cannot be said to be unconstitutional since the same constitution has created the offence of “abuse of powers”.
As the verdict of the apex court was based on wrong legal foundations, its validity remains questionable. Although the appellants have been exculpated, it is hoped that the Supreme Court will soon have another opportunity to reverse the highly erroneous judgment so as to restore Sections 104 and 203 of the Lagos State Criminal Code which were struck down for no justifiable legal reasons. However, the case of George & co. should not be treated in isolation as it is now the trend to strike out or dismiss charges filed against members of the bourgeoisie. To that extent, the decision of the Supreme Court should be seen as an audacious expression of class solidarity.
Perhaps, majority of Nigerians are not aware of the fact that out of the over 400 convictions which the EFCC has secured in the 10 years of its existence, only four members of the political class have been successfully prosecuted through dubious plea bargain deals. In the circumstance, instead of wasting the meagre resources allocated to the anti-graft agencies on securing convictions which are going to be set aside in favour of members of the ruling class, it is high time the Federal Government stopped charging politically exposed persons and other influential criminal suspects to court. Given the pervading atmosphere of impunity in the land, judges should also stop the immoral practice of railroading petty criminals to jail.
Concluded.
•Falana, SAN, is a Lagos-based human rights lawyer
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