Guardian

AS observed above, Section 309 of the Penal Code under which the trial court acted in the instant case gives the court a wide latitude or discretion to exercise. This the Honourable court exercised as it deemed fit.

The law is trite that once a court, which has discretion to exercise, does so as it deems fit, appellate courts do not normally question or disturb such discretions unless there are good reasons to do so. In all cases, the onus is on whoever alleges the contrary to show why a discretion duly exercised by a court of competent jurisdiction should be questioned or disturbed.

It is equally important to point out that if the trial court in the instant case had exceeded the maximum limit of two years’ imprisonment stipulated by the law, the court would have acted ultra vires (beyond its powers) and would, therefore, have been in breach of the clear provisions of Section 36(8) of the 1999 constitution (as amended) which inter alia provides no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed.

Against the background of this constitutional provision, it can easily be seen that those who are criticizing Hon. Justice Talba for handing out what they see as light sentence are only exhibiting their ignorance of this constitutional provision. They can now see that there is no way the court could have exceeded the two years’ limit stipulated by Section 309 of the Penal Code.

If the court had done this, it would have been a good ground of appeal for the convict who would quickly have approached the court of appeal to complain that the trial court had breached section 36(8) of the constitution. in that case, one needs no soothsayer to know that the court of appeal would have unhesitatingly quashed the conviction. the trial conducted by the lower court would have been an exercise in futility.

The EFCC was widely reported to have kicked against the sentence of two years or fine of N750, 000 passed by the court.

By this act, the EFCC only succeeded in exhibiting a crass ignorance of the extant constitutional provision cited above. The EFCC should, therefore, be ashamed of itself because it ought to know better. As far as I am concerned, the reaction of the EFCC amounted to shedding crocodile tears. This is because the EFCC has never done what it ought to have done first viz to push for the reform or review of the relevant laws. How can the EFCC, in all honesty expect a court, which knows its onions, to act outside the law?

Long before now, the EFCC ought to have taken a critical look at the laws under which it operates and made a case for review, reform or repeal where necessary. This, the EFCC, woefully failed to do.

The crocodile tears that the EFCC shed in the aftermath of the judgment of the court in the instant case was aimed at covering its inadequacies. It was also aimed at whipping up unnecessary sentiments against the judiciary so that the public would see the judiciary as the greatest impediment in the fight against corruption in Nigeria. But nothing can be farther from the truth.

If one goes through the Penal Code and the Criminal Code, it is not difficult to see that they are grossly inadequate to combat the magnitude of corruption starring Nigeria in the face today.

In fact, it can be rightly argued that the sections of those laws dealing with fraud, corruption, stealing etc were made with petty criminals and thieves in contemplation. They were not made with the type of gargantuan fraud and corruption we are witnessing in Nigeria today in view. As far as the ugly situation we have in Nigeria today is concerned, the Penal and Criminal Codes have become utterly anachronistic and therefore, need urgent review. Rather than shed crocodile tears and engage in buck passing, the EFCC should focus squarely in this direction if it must deliver on its mandate.

It would be recalled that Nigeria changed from Pounds sterling to Naira on or about the 22nd day of April, 1972 (over 40 years ago). It is, however startling that our statute books still reflect the old currency of pounds and shillings.

In order to make the anti -graft war more meaningful, there is need for stakeholders to ensure that anticorruption laws are made stiffer. This is because the crime itself has become more rampant and more sophisticated.

It would be good to start by making corruption, fraud and related offences strict liability offences.

By definition, a strict liability offence is one whose elements do not contain the need for criminal intent or mens rea.

According to the Black’s Law Dictionary, (6th edition) these are usually crimes that jeopardize public welfare.

In such cases, all the prosecution needs prove is the fact that the alleged crime was committed (i.e. the actus reus).

It is evident in Nigeria today that corruption is the greatest crime that jeopardizes public welfare. This is because funds meant for infrastructural and economic development are siphoned into private pockets. The result is that abject poverty holds sway in the entire country.

It would be recalled that owing to the negative impact of the activities of smugglers on the economy, offences under the customs and excise management act laws of the federation of Nigeria 2004 were made strict liability offences.

I am of the candid view that corruption has continued to thrive in Nigeria because of the kid gloves with which offenders are being treated. This must stop if corruption must be reduced to the barest minimum.

To however punish a judge who did his job in accordance with relevant laws is to say the least most objectionable as this amounts to using him as a scapegoat.

This is because no allegation of misconduct or breach of code of conduct was made against the judge. If any such allegation was made, it was not shown to be proved.

According to the NJC, the Honourable Justice Talba was punished for improper exercise of judicial discretion. With utmost humility, I submit that this is a most nebulous phrase that the NJC needs to clearly define. Failure to do this may leave people like me with the impression that the judge was victimized for reasons that are being hidden from the public.

Assuming without conceding that the judge improperly exercised his discretion, the worst the NJC should have done in the circumstances of this case was to reprimand the judge in writing. Even then, this should not have been publicized.

So suspend the judge for a year without salary for merely exercising his discretion improperly amounts to killing a fly with a sledgehammer. Clearly, the punishment, which the NJC meted to the judge, is totally out of proportion with the offence he allegedly committed.

In my humble opinion, Hon. Justice Talba was humiliated for no just cause and this is not healthy for the judiciary at all.

As a legal practitioner and therefore, a stakeholder in the justice sector, I am in total support of whatever the NJC will do to ensure that our judges maintain the path of rectitude in the discharge of their duties. It (NJC) must, however, avoid playing to the gallery as it has done in this case.

A judge should be punished only when a case of misconduct has been clearly and evidently established against him. Anything short of this is absolutely unacceptable.

My candid advice to the NJC is that it should immediately recall Justice Talba from suspension and possibly apologise to him. This is because being a body made up of human beings the NJC is not infallible. Whenever it makes a mistake, therefore, (as in the instant case), it should be courageous and humble enough not only to admit but also to rectify same.

• Maraizu is an Abuja-based lawyer