Even if the judge was present at the transaction that resulted in the crime, he/she cannot attempt to give evidence or add material except that which has been provided by the parties. A judge can only convict on the strength of the case and nothing more.
I have read with interest the opinions and emotions arising from the judgment delivered by Justice Abubakar Talba at the FCT High Court, Abuja on the 28th January 2013. Most Nigerians are calling for Talba’s head and demanding a re-trial or simply cursing him outright.
Did Justice Talba err in his judgment? I think not!
We have seen several prominent Nigerians get what we the laymen will call lighter sentences. The likes of Cecilia Ibru, Diepreye Alamiesegha, Bode George, Tafa Balogun and hief Lucky Igbinedion. Is the judiciary corrupt? Hmmnnnn maybe…
Though I am not holding brief for EFCC, NBA, NJC or Justice Talba himself, I wish to correct a few fallacies.
1. The judgment delivered by Justice Talba was the maximum sentence prescribed by the Penal Code for Criminal misappropriation which was the crime that the Pension Scam boss in the person of Mr. John Yusuf was charged for. The EFCC proffered a charge under Section 308 & 309 of the Penal Code (Northern States) Federal provisions Act Cap 345 LFN 1990. Section 309 being the punishment section clearly states
“Whoever commits a crime of misappropriation shall be punished with an imprisonment term which may be extended to two years or with fine or both”
The questions that are left to ask are the following;
a. Why did the EFCC bring a charge of criminal misappropriation? There are elements of fraud, conspiracy to defraud, obtaining by false pretences, administrative mismanagement, stealing and the list goes on that could have nailed the culprits in separate counts and push for consecutive sentences which would have been at the discretion of the judge.
b. Why did the EFCC go to the FCT High Court? The Federal High Court has the capacity to entertain the charges I have listed above firstly as a result of the charge and secondly as a result of the parties involved in the crime. By going to the Federal High Court, the Criminal Code would have been applicable and available for more offences to tie up the culprits with higher sentences.
2. There has been this fallacy that the EFCC Act provides 25 years for the crime that the culprits were charged for, this is a blatant lie. Section 14 through 18 of the EFCC Act does not make any such provisions. The maximum punishment in the EFCC Act is Three (3) Years.
3. There has been this fallacy that it is the duty of the Judge to mete out severe punishments to culprits. Let me put it this way, the burden of proof for any crime is ‘beyond reasonable doubt’. A prosecutor should not leave loopholes for an accused person to wriggle free. Make use of the allowed law with the maximum punishment available. It is trite law that a judge cannot descend into the court arena. Even if the judge was present at the transaction that resulted in the crime, he/she cannot attempt to give evidence or add material except that which has been provided by the parties. A judge can only convict on the strength of the case and nothing more. Where a judge chooses to give additional information at a trial, he becomes a witness and steps down from the bench while the case is transferred to another Judge. This is based on the principle of ‘nemo judex in causa sua’.
So pray, with the above information, what would the judge have done? The common idea in Nigeria is that once a case is ruined, it is the judge. I submit that we have corrupt judges but then let us not sacrifice reasoning on the altar of ignorance. The prosecution was either too lazy to nail the coffin of the culprits tightly or they exchanged the bodies in this coffin for cash.
Catch up with Nana Nwachukwu on Twitter, as @purehaire
Op-ed pieces and contributions are the opinions of the writers only and do not represent the opinions of Y!/YNaija.