By Nkereuwem Anana

An erstwhile prosecutor for the EFCC, Mr Nkereuwem Anana, has described the proposed amendment of the Administration of Criminal Justice Act as unconstitutional. The proposal by the senate will deem convicted persons innocent of crime until their appeal has been concluded. He also described the amendment as dead on arrival.

Recall that the Senate had on Wednesday December 7 2022, began moves to amend the ACJA to allow persons convicted by the lower court to be presumed innocent until conclusion of appeal.

The bill sponsored by senator Chukwuka Utazi (PDP Enugu North) seeks to avert possible sufferings which convicted persons would have undergone between the period the persons were sentenced by a lower court and when set free by the appellant Court.

Senator Utazi had said that bail is a fundamental principle of criminal justice system in every civilized society adding that a situation where a person is convicted, sentenced and committed to prison custody and serves out his term but is eventually acquitted by the apex court, will amount to breaching the rights of the citizen.

However, this proposed amendment has been greeted with mixed reactions from a cross section of the nation, with some calling for a second look at the proposal.

Meanwhile, the author of this piece, Mr Nkereuwem Anana who recently exited service as a prosecutor for the EFCC, puts his thoughts on the issue succinctly while stating :

“There are so many things we do not need to embark on as a country because of the far reaching consequences and so as not to make us more miserable before other nations. If this was to succeed, the psychological impact on prosecutory agencies, individual prosecutors and the judges cannot be remedied. Nigeria would be the first country of the world where no act is criminalized.”

“No Act of the National Assembly can amend the Constitution of the Federal Republic of Nigeria or any of its sections. Section 4 (8) of the Constitution of the Federal Republic of Nigeria states:
Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law.

“The said contemplated legislation seems to oust the jurisdiction of court in criminal matters. All this is happening because 2 senators have been convicted and currently serving prison terms. Nigerian Laws are basically for the poor and not for the rich. This is a country where a court will order a person to appear before it but because the individual is greater than the court, he will refuse to appear and no consequences attached to such impunity.

Section 35(1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law in execution of the sentence or order of a court in respect of a criminal offence of which he has been found guilty;

Section 36 (5) states (5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty;

The Constitution without equivocation has stated the circumstances wherein a person shall be convicted which is not on appeal. It is only in football where a goal scored is not celebrated in some circumstances until the verdict of the VAR. That system cannot be adopted into the Nigerian legal system to wait for the appeal court before the conviction is celebrated by the prosecution. The shameless efforts to amend the Constitution of the Federal Republic of Nigeria by way of an enactment is a nullity and shall not stand. Without a clear amendment of the Constitution itself, our legislators who embark on the journey of using an enactment to amend our Constitution become the authorities contemplated by Section 1 (1) of the same Constitution.

The court has powers where a statute is enacted in breach of the Constitution which is to declare such statute illegal and unconstitutional. See the case of NWOKEDI v. ANAMBRA STATE GOVT & ANOR (2022) LPELR-57033(SC)

Nkereuwem Anana is a legal practitioner and former prosecutor of the Economic And Financial Crimes Commission (EFCC).

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