By JOSEPH JIBUEZE
Civil society groups and activists have hailed the abolition of stay of proceedings in criminal trials, saying it does not violate the right of appeal. JOSEPH JIBUEZE reports.
Does the abolition of stay of proceedings violate the right of appeal? No, say senior lawyers and rights activists.
Instead, it has ended the practice of suspending trial for several years pending appeal, which to them, was abused by powerful defendants and their lawyers.
Section 305 of the Administration of Criminal Justice Act (ACJA) 2015 provides: “An application for stay of proceedings in respect of a criminal trial before the court shall not be entertained”
The Supreme Court, in a landmark judgment last June 9, upheld the section while dismissing an application for stay of proceedings filed by a former Peoples Democratic Party (PDP) National Publicity Secretary Chief Olisa Metuh.
Participants at a civil society roundtable on ACJA and abolition of stay of proceedings in criminal trials, organised by the Human and Environmental Development Agenda (HEDA Resource Centre) in Lagos hailed the Supreme Court decision.
Human rights lawyer Femi Falana (SAN), renowned prosecutor Rotimi Jacobs (SAN), Nigerian Bar Association (NBA) Second Vice President Monday Ubani and activist lawyer Jiti Ogunye faulted those who claim that the elimination of stay of proceedings circumscribes the right of appeal.
Falana recalled that under the old order, lawyers engaged in “rigmarole” by filing “frivolous” applications challenging trial venue, competence of the charge, as well as alleging bias against the judge, among other dilatory tactics.
They would then file interlocutory appeals if the judge did not rule in their favour, which took several years to resolve.
“Once they file the appeal, they will file a motion for stay before the trial court. The court may dismiss it, and they would file another one at the Court of Appeal.
“While that one is pending, automatically, the trial is suspended, so that the judge is not accused of engaging in judicial rascality so as not to present the Court of Appeal with a fait accompli. These may take 10 years because of court congestion,” he said.
Falana believes the turning point was the conviction of former Delta State Governor James Ibori abroad after he was cleared by a court in Nigeria. He said the attendant embarrassment on Nigeria forced the Goodluck Jonathan administration to enact the ACJA.
The SAN was of the view that with the “definitive” Supreme Court pronouncement, stay of proceedings “has been consigned to the dustbin of history”.
Falana said: “They (critics) are fighting back. But as far as we’re concerned, the judgment of the Supreme Court is unassailable. Anybody who is dissatisfied should not attack the bench.
“Some of my colleagues are saying the judiciary is now very timid and succumbs to the intimidation of the executive by violating the constitutional right of accused person. Which accused person? The rich alone?
“Granted, there are cases where stay of proceedings ought to have been granted. But because of the abuse of that procedure, what the country stands to gain by abolishing it is by far greater than what it is bound lose by retaining it.
“Stay of proceedings was enjoyed only by the rich and politically exposed persons, which made a mockery of the right of equality before the law. The poor are railroaded to jail and the rich who have stolen all the funds in this country are walking free? Then there’s a problem.”
Jacobs said most lawyers in Nigeria “practice law without morals,” adding that in other jurisdictions, lawyers advise their clients to plead guilty when it is obvious that they are culpable. Failure to do so, he said, results in sanctions.
“The mentality here is to get a suspect free by all means even where evidence against him is overwhelming,” he said, describing such acts as “unprofessional” and deserving of sanctions.
The leading EFCC prosecutor, who last week secured the conviction of a former governor, insisted that Section 306 of the ACJA does not breach the constitutionally guaranteed right to fair hearing.
“The prohibition of stay of proceedings is not only against the accused person; the prosecution also cannot ask for stay. It’s not a one-way traffic. I agree that it is about protection of class interest.
“None of these lawyers who are working against Section 306 are canvassing this point for the less privileged. I appeal to them to allow the ACJA to work, because we have started on a good note,” Jacobs said.
Ubani suggested that courts should issue practice directions stating that applications for stay of proceedings should not be entertained.
He also believes that stay of proceedings does not violate the right of appeal but makes justice administration efficient.
Ubani said while defendants reserved the right to hire any lawyer of their choice, the problem was with lawyers who manipulate the process and go unpunished.
“What we’re against is the manipulative tendencies and application of unethical methods by lawyers. The law imposes a duty on accused persons to be defended. But in doing that, lawyers should follow procedure.
“Don’t manipulate the system; don’t employ unethical standards and methods. If you do that, then the legal profession should come in to punish that lawyer,” Ubani said.
Ogunye urged all stakeholders to ensure that the ACJA is strengthened and that gains made in the anti-graft war were not lost.
He described the ACJA as the “game changer” which has facilitated speedy prosecution of criminal cases, noting that “some are afraid of it.”