To do otherwise would have been assault on constitution, says Fagbemi

• HURIWA Lauds Judgment

A Senior Advocate of Nigeria (SAN), Chief Lateef Fagbemi, said the Supreme Court’s nullification of the conviction of Senator Orji Uzor Kalu was in order.

Speaking with The Guardian in Ibadan, Fagbemi said to do otherwise would have been an assault on the constitution, saying which noted takes precedent over any other laws.

Fagbemi said: “The Supreme Court has come out boldly to say they a Judge cannot wear two caps. It is either you are a Judge of High Court or that of Court of Appeal. You cannot, in one capacity, function as the Judge of High Court and in another capacity, function as a Justice of Court of Appeal.

“In this case, that the Justices of the Court of Appeal who went back to the High Court under the provision of the Administration of Criminal Justice Act were wrong. So, we are happy. The order is that they should go back to the Federal High Court for the case to be assigned to another Judge for hearing.

“The implication is that once you are promoted to a higher court, you leave the file and go and face the activities or duties of the appellate court.”

On the implications of the judgment on the ACJA, Fagbemi said: “If the National Assembly wants, they can amend the constitution to bring this one in. It is the constitution that needs to be amended in this regard, not the Administration of Criminal Justice Act. The tail cannot wag the head; it is the head that wags the tail. In this case, the constitution is the head.”

Regarding Kalu’s Senate seat, the senior lawyer said: “He would continue in the senate, because the question is that the judgment, which convicted him, has been nullified. As it stands, there is no conviction against him and the law is that even though the allegation may be pending, until he is proved guilty, he is deemed innocent.

“At the same time, they have restored to him, his office. It is not a question of sentiment; it is the question of what the law says.”

Meanwhile, the Human Rights Writers Association of Nigeria (HURIWA) has commended the decision of the court.

In a statement signed by its National Coordinator, Emmanuel Onwubiko, in Abuja, HURIWA said: “The constitution of a court is a jurisdictional issue and fundamental to the whole trial, so much so that a breach of it during a proceeding makes such proceeding void as one that never happened.”