NIGERIAN SUPREME COURT ON BODE GEORGE – THE BIGGEST FAILURE, YET THE MOST PROFOUND TRIUMPH OF JUSTICE.

NIGERIAN SUPREME COURT ON BODE GEORGE – THE BIGGEST FAILURE, YET THE MOST PROFOUND TRIUMPH OF JUSTICE.

By Emeka Ugwuonye, Esquire

December 14, 2013

Lagos, Nigeria

This year has marked a profound period in the history of the Nigerian criminal justice system. Barely months after the shocking case of Al Mustapha’s acquittal after 14 years in prison, yesterday’s Supreme Court reversal of the conviction of Bode George ought to shake the Nigerian justice system to its foundations.

In these two cases, the Nigerian system of justice twice failed colossally. And twice, the system triumphed against itself in an amazing combination of tragedy and glory. That which leaves one aghast and in utter shame is also that which leaves one cheerful and hopeful. Without a doubt, the Nigerian Supreme Court again rescued Nigeria by upholding the constitution against the odds.

Why is the victory of Bode George a tragedy, nonetheless? The reason is that Nigerians had hoped that the corrupt Nigerian leaders could he somehow held accountable in the courts of law, just like anybody else. They had looked to the case of George as an actualization of that hope. But that was wrong, unfortunately. The people are thus unsatisfied that the powerful, but corrupt, leaders of the country remain totally untouchable.

But George’s case was never set as a genuine test of justice in Nigeria. It was a travesty both in framing and prosecution, laced with ironies all the way. Explaining what happened in that case to an ordinary person is quite a challenge, without losing some nuances and intricacies that were involved.

The Lagos State High Court is largely under the firm control of the Lagos State Governor or the Executive. Even though the constitution tries to give the judges some measure of independence from the executive, the judges are left largely at the mercy and under the control of the executive arm of the state government. Through the ability to allocate lands and other resources and more, most judges would be mindful not to be in the bad books of the state executive. Also, through the ability to appoint judges and the particular manner that power has been exercised in Lagos over the years, there is no question that an average judge feels beholden to the Governor. A typical high court judge sees his happiness tied significantly to the pleasure of the Governor.

Incidentally, Lagos State was controlled by a Governor from a party in opposition to the party that ruled at the federal level. Lagos is a critical piece of political territory in Nigeria. The opposition party in control of Lagos wanted to keep Lagos at all costs, while the party at the center wanted to take Lagos. Bode George was at some point the arrowhead for achieving the ambitions of the party at the federal level over Lagos.

A perfect opportunity arose when through series of inconsistencies at the federal level George got indicted in Lagos in what was to be one of those show trials that was never intended to get anywhere. But this time, there was finally an opportunity for Lagos to achieve an outcome not even fully appreciated by the EFCC, which initiated the indictment. Convicting George and sending him to jail in Lagos was going to solve a lot of political problem for the part that ruled Lagos.

One has wondered what level of coordination existed between the Lagos Executive and the Lagos Judiciary over this case. The fact is that the Executive did not have to say even one word to the presiding trial judge for him to appreciate the significance of having George as a suspect in a jailable offense in his court. It is logical that conscious parallelism would have kicked in and everything became a fate accompli.

But there seemed to be the existence of a plot and coordination beyond mere parallelism, coincidental or concerted. The manner the charges were framed remains curious. The prosecutor escaped lightly the obligation to present any evidence of fraud or an indication that Bode George benefitted personally from all the corrupt offense he was alleged to have committed. How come that the entire effort to jail the man did not include a demonstration that he stole money or that he received even a kobo or that any of the companies that were awarded contract under his reign belonged to him? That was troubling.

The only explanation for such a dodgy and curious framing of a charge and proof of evidence was that the whole goal was to convict him in any manner least likely to raise serious appealable issues. In other words, the goal was just to get him to jail at all costs, and not to address any substantive issue of justice.

Once Bode George was at the mercy of the courts, things moved in the only direction they were designed to move. He got convicted of “anything possible”. His effort to get a stay of judgment, which ought to be well justified, given the shaky legal basis for his conviction, was denied, through what was later to be seen as the overbearing position and influence of the President of the Court of Appeal, presumed to be in sympathy with the party that controlled Lagos. And once the Court of Appeal refused George’s request for a stay, it boxed itself in – the Court of Appeal had to uphold the conviction to justify its questionable denial of stay. This conclusion, though not the only possible explanation, is logical and reasonable.

To fully understand the tragedy of this case, let’s look at the judgment of the Supreme Court and the language is used. The court pointed out that “The prosecution knew the odious phrase to demean [the accused/George]. From the word go, it must be presumed that when [George and others] were put on trial it was on the basis that there was no prima facie case which showed intention to defraud.”

The Supreme Court pointed out that the prosecuting counsel manipulated the charges with intention to malign the accused with the stigma of fraud. Yet there as no evidence for that. The case was essentially one that required evidence of fraud. Yet no such evidence existed and no such evidence was adduced. Indeed, the charge was defective and George should not have been charged to court on the basis of the allegations and the lack of evidence.

According to the Supreme Court, “Intention to defraud was made an element of the offense charged. Yet learned counsel for the respondent said evidence in respect of same was ‘neither here nor there’. “…. the case ought not to proceed to trial. Such action does not reflect well on our jurisprudence. A court of law should be weary of such practice.”

The Supreme Court then goes forward to make pronouncements that damned and ridiculed both the trial judge and the justices of the Court of Appeal, thus:

“Let me state it in passing that their Lordships of the court below, with due diffidence, did not indicate the process of reasoning by which they implied that the intention to defraud had been proved. This court has held that the trial courts must arrive at their verdicts through process of reasoning which is analytical and not only to command confidence, but is punctuated with logical thinking based on cogent and admissible evidence and in which facts leading to the conviction of the accused are clearly found and legal inference clearly drawn”.

The highest court basically stated that the lower courts did not meet the basis standard of logical reasoning in its rationalization of its verdict. They reasoned like illiterate traders in Onyingbo market, more or less. That is bad enough and that is what calls for investigation into what happened. This case was not just an ordinary judicial error within the margin of judicial discretion. It smells of a wholesale subversion of Nigeria’s criminal justice system. The Supreme Court termed the entire trial a “complete mistrial” on a case that rested “on shifting sand”.

Anyone familiar with the characteristic restraint of Supreme Court justices in referring to the conduct of lower judges and the state prosecutor will understand the extreme nature of the direct rebuke of the lower courts by the Supreme Court. There is thus a need for a complete investigation into what went wrong in this case that caused it to threaten our jurisprudence, as the Supreme Court rightly observed.

Yet, despite the huge problems posed by the development of this case and the overwhelming injustice in the trial, conviction and punishment of an innocent man, this case ended in a triumph for justice and rule of law in Nigeria. The Supreme, as was done in the case of Governor Amechi that led his becoming a governor, saved the country and vindicated justice by restoring the supremacy of the constitution. The justices are indeed the guardians of the constitution.