Justice Mohammed’ Idris’ recent order, revoking the bail earlier granted a former governor of Abia State, Orji Kalu, in a corruption case might have been ill-conceived, writes Tunde Salami
A judge of the Federal High Court, Lagos, Justice Mohammed Idris, courted an avoidable controversy last week, when he revoked the bail earlier granted a former Governor of Abia State, Orji Uzor Kalu, who is standing trial after he was arraigned by the Economic and Financial Crimes Commission (EFCC) for an alleged fraud of N7.65billion, in 2007, for allegedly flouting his order.
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He went on to give Kalu a seven-day ultimatum to return from Germany, where is currently recuperating after a major operation to face his trial. The judge gave this order when Kalu’s lawyer, Prof Awa Kalu (SAN), told the court that his client was away in Germany for surgical operation, and that the former governor had been advised by his doctors to remain in Germany for some time to recuperate.
He also told the court that the counsel for the EFCC, Mr. Rotimi Jacobs (SAN), was aware of the development, and therefore urged Justice Idris to further adjourn the case.
Kalu’s counsel was stunned when the EFCC prosecutor, Jacobs, said he was surprised at Kalu’s absence from court, adding that he did not know if or when the ex-governor obtained the court’s permission to travel out. He noted that having submitted his passport to the court as part of his bail conditions, Kalu must always apply to the court for the passport whenever he wished to travel, urging the judge to interpret Kalu’s absence to mean that he had jumped bail.
Ruling on both submissions, Idris, who knocked off the position of Kalu’s counsel, agreed it was true that the matter was adjourned indefinitely on September 27, 2018, but maintained that Kalu was on November 2, served with a hearing notice that the case had been scheduled for that Monday.
The judge further noted that the court actually received a mail confirming Kalu’s treatment arrangement, but said the defence counsel failed to attach any medical report to guide the court as to Kalu’s post-surgery treatment.
In the circumstance, he said he would in the interest of justice, adjourn the case for the last time, stressing that Kalu must return from Germany within seven days and appear before the court – a man who could still barely walk since after his surgery.
“I have always stated that every citizen of this country is entitled to and has the right to seek medical treatment abroad. This right is guaranteed by the constitution, the African Charter on Human and Peoples Rights, the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights. It is an inalienable right.
“However, this right has exceptions. Therefore, in exercising this right, due regard must be had for the law and due process. Apart from the mail confirming the treatment arrangement of the first defendant, the defence counsel should have obtained a medical report on the condition of the first defendant post-surgery. This would have properly guided the court in the proceedings of today.
“However, in the light of the entirety of this case and in the interest of justice, I am prepared to grant to the first defendant a final adjournment in respect of this matter. In the light of the provisions of the ACJA, I shall not adjourn for more than seven days from today. It is, therefore, hereby directed that the first defendant shall return to the country within seven days from today’s date for the hearing of this matter.”
The matter was therefore adjourned for a continuation of the trial. But when the case came up for hearing this time, Kalu was not in court. This made the judge to order that he should surrender his travel documents to the EFCC within 24 hours of his return, failure of which he would be arrested.
“Due to the circumstances, I am constrained to revoke the bail granted to the first defendant (Kalu). The first defendant is, however, permitted to continue with his medical treatment abroad without any harassment by law enforcement agencies.
“Upon the first defendant’s return to the country, he shall at the point of entry surrender his passport and other relevant documents to the EFCC. He shall also submit himself to the EFCC within 24 hours of his return, failing which he shall be arrested and detained by the EFCC,” he said.
Whilst it may appear that the judge was somewhat magnanimous in his ruling especially, that he consented to Kalu completing his treatment without harassment, the manner he revoked his bail made nonsense of his seeming kindness to the former governor.
First, he admitted that that matter had been adjourned indefinitely before a sudden rescheduling of the hearing, which notice he claimed was sent to the former governor. He also claimed to have received a mail about his medical treatment but frowned at the fact that he was not updated with the post-surgery situation report, which does not sit well within the law of common sense except of course the judge has an axe to grind with the former governor.
To think that Kalu is not one to willfully jump bail, given his status in the country and beyond, rushing to revoke his bail speaks more to personalising the trial than fairly adjudicating on the grounds of what was before him. The former governor is not one to run away from challenges; the very reason the judge should have exercised restraints in revoking the bail, because jumping bail does him no good.
Besides, the whole situation could also elicit suspicion that a judge, who had been elevated to the appellate court, would recall a matter from its indefinite suspension, sit on it at the high court and dispense such order with such colouration that is inconceivable.
To think that Kalu did not sneak out of town and the processes of his operation as well as recovery have been regularly put in the media, a situation that could guarantee him more leverage on personal recognistion is worthy of note. But the judge would rather put his elevation on hold, because there is an unfinished business in the matter involving Kalu and they descend evidently into the arena.
He granted on the one had that he should be left to recuperate without harassment and on the other hand, revoked his bail, which compelled him to report to the EFCC within 24 hours of returning to the country. What was wrong with letting the matter take its course and the judge reporting at his new post? What was the haste to revoke his bail about or is there more to it?
Could he have traveled at that level and given what is on the ground without fully satisfying what the law says or upholding extant rules? Has he ever jumped bail? Was there any time the court or the EFCC demanded of him and he failed to show up? So, why embarrass him by revoking his bail even when the judge knew he was still recovering? Did the judge consider the psychological implication of such an order on his health?
It is pertinent to underscore that the court had been reasonably patient in terms of the amount of time it had conceded to Kalu on this particular case, but being magnanimous one more time would not hurt either the court or Kalu especially, that the story of his operation is out there. Truth is that it is only the living that can stand trial else if he dies today, neither the court nor the judge would be exonerated from the cause of his death.
It therefore goes without saying that the judge might have been needlessly emotional about the order he last gave against the former governor and it was to say the least, worrisome even though it is within his judicial prerogative to do so. But, in the final analysis, it amounts to nothing but an abuse of such a privilege at the risk of someone else’s wellbeing and right. Discretion could be said to be clearly missing here and it was because the judge chose to travel the emotional route.
*Salami wrote from Lagos