Olabode George: Constitutional implications of S/C decision

“I will at all times faithfully serve the interest of the Federal Republic of Nigeria in the capacity of Senior Advocate of Nigeria and to that end will support and uphold the Constitution of the Federal Republic of Nigeria, 1999 [as amended]; that I will to the best of my ability assist the courts of […]

“I will at all times faithfully serve the interest of the Federal Republic of Nigeria in the capacity of Senior Advocate of Nigeria and to that end will support and uphold the Constitution of the Federal Republic of Nigeria, 1999 [as amended]; that I will to the best of my ability assist the courts of justice duly established in the Federal Republic of Nigeria in the performance of their judicial  function.”
I must at this point reiterate that it is speculative and bad practice for people to ascribe any meaning to judgments especially that of the Supreme Court without first of all thoroughly digesting the judgment. This is most misleading for Nigerians who rely mainly on the opinion of lawyers on their assessment of judicial pronouncements.
The Supreme Court in the consideration of the appeal as expected considered the issue that touches on the constitutional provision of Section 36(12) of the 1999 Constitution of the Federal Republic of Nigeria as amended and it held that contract splitting which formed the basis of the offences that the appellant was charged is unknown to law at the material time of the alleged commission of the offence.
It was also the position that contract splitting as a specific act was not mentioned in Section 104 of the Criminal Code under which the appellant was charged and that the alleged disobedience of lawful order as contained in a Federal Executive Guideline Item 2 (viii) cannot be elevated to an offence that will make the appellant criminally culpable as the breach of the said Guideline shall be met by disciplinary action which may be administrative.
The Supreme Court held that disobeying the said Guideline is not made an offence by any Act of the National Assembly or law of a State House of Assembly or even the said Guideline and the disobedience of the said Guideline is nowhere penalized in a written law and that any conduct that will lead to conviction in a criminal trial must not be left to conjecture as in the instant case.
The Supreme Court as the guardian of the Constitution of the Federal Republic of Nigeria in its usual character gave effect to the provision of the said constitution that no person no matter how loved or hated can be convicted for an offence that is not made an offence in a written law made either by the National Assembly or a State House of Assembly as provided by Section 36(12) of the 1999 Constitution. And also  that by virtue of the provision of Section 36(8) of the said constitution, no conduct can be made an offence that did not, at the time it took place, constitute such an offence and this was aptly demonstrated by the National Assembly when it passed the Public Procurement Act, 2007 on the 1st June, 2007, wherein it made contract splitting an offence while the alleged offence was committed between 2001-2003 by the appellant.
The learned and erudite Justice of the Supreme Court, Hon. John Afolabi Fabiyi held inter-alia
 “In view of the constitutional infraction, the entire trial, conviction and sentence of the appellant remain a nullity and must be set aside, anon”
From the above, it is clear that the Supreme Court has reminded everyone again that the 1999 Constitution of the Federal Republic of Nigeria is sacrosanct and any infraction of same by anybody or authority shall be condemned and set aside in its entirety as in the instant case.
It is also a confirmation that an offence is an act or omission which renders the person doing the act or making the omission liable to punishment under the code or under any other statute and not a mere Federal Executive Council guideline, at any rate, the  Federal Executive Council is not a law making body.
The Supreme Court has established that no matter the grievance or ground, no matter the height or depth of the conjecture, any criminal trial that runs contrary to the spirit and letter of the constitution will not see the light of the day and finally, may I seize this opportunity to restate that the law courts are not expected and will never be part of sentiments and semantics or the politics involved in any criminal matter brought before it.
The courts are hallowed chambers of cogent and concrete evidence backed by written law and any other issue is grossly irrelevant and of no moment as the law is no respecter of persons or authority and I dare say that it is the duty of lawyers to place this position properly before the society. I unreservedly subscribe to the judgment and state that there was absolutely no necessity for the undue publicity and media hype given to the judgment.

Akinlolu Kehinde SAN, practices law in Abuja