By Tonye Clinton Jaja
Yesterday, Mazi Nnamdi Kalu (MNK) had a long tirade inside the courtroom of the Federal High Court, Abuja. He abused the prosecution counsel, Asiwaju Awomolo, SAN (Chairman of the Body of Benchers), he verbally attacked the judge (Hon. Justice Binta Nyako), he verbally attacked the Chief Judge of the Federal High Court (“I had previously written to the National Judicial Council and they recused him from handling my matter”) and later his own lawyers (“shut up, when I am talking”).
In all these tirades, the only person or thing that he did not attack, which ought to be subject of his attack is the Administration of Criminal Justice Act, 2015, the Federal High Court (Civil Procedure) Rules, 2019 and other Rules of court that relate to “recusals”
Recusal is defined as “the withdrawal of a judge, prosecutor, or juror from a case on the grounds that they are unqualified to perform legal duties because of a possible conflict of interest or lack of impartiality.
“prosecutors filed a motion for her recusal in one of the cases”.
In the case of MNK, Hon. Justice Binta Nyako, had previously recused herself from the said case, and returned the case file to the Chief Judge of the Federal High Court. However, the Chief Judge of the Federal High Court wrote a MEMO re-assigning the same case to Hon. Justice Binta Nyako. It is the contention of MNK that the only way Hon. Justice Binta Nyako can continue with the trial is if the appellate courts delivers a judgment that nullifies the enrolled Order of Hon. Justice Binta Nyako wherein she recused herself from the said case.
MNK’s contention is that an official MEMO from the Chief Judge of the Federal High Court is not sufficient and cannot be the legally correct procedure for nullifying a previous recusal.
The Hon. Justice Binta Nyako then adjourned the said case sine die (indefinitely)!!
Having looked through the 58 Orders of the Federal High Court (Civil Procedure) Rules, 2019 and the 495 Sections of the Administration of Criminal Justice Act, 2015, and relevant case line, there is no explicit mention or provisions or judgments on the procedure on recusals with the set of facts as applicable to the MNK case.
Therefore, it is a novel area of law that can be settled either through litigation or through an amendment of the relevant legislation.
Interestingly, in June 2023, the Federal High Court had delivered a judgment in the lawsuit filed by Femi Falana SAN that the National Assembly ought to undertake an amendment of Section 438 of the Administration of Criminal Justice Act, 2015. According to the Federal High Court, the said Section which confers power upon the Attorney-General of the Federation (AGF) to detain certain persons constitutes a violation of Sections 35 and 36 of the Constitution of the Federal Republic of Nigeria, 1999 and Article 6 of the African Charter on Human and People’s Rights.
The rationale for regular periodic amendment of legislation is found in the words below:
“No draftsman can envisage all the circumstances which may possibly arise in the course of human conduct. From time to time, events occur which are either within the plain words of the statute or yet outside it’s evident purpose or vice versa”-Lord Millet, Construing Statutes (1999) 20 Statue Law Review, 107 at 109.
Dr. Tonye Clinton Jaja,
Executive Director,
Nigerian Law Society (NLS).
