2, Our system of criminal justice is adversarial and accusatorial not inquisitorial or inquisitional? The major object of the adversarial processes is to give every bit of benefit of the doubt to any person or persons suspected of or accused but not yet convicted. It is only in this way that we can be sure that only the guilty is punished. Hence the prosecutor or accuser must necessarily establish the guilt of the accused person by credible evidence independently and freely secured.

3. The 1999 Constitution insists that an accused person must not be made to suffer any infraction to/of his personal liberty unless and until his guilt is established through due process before a court of law? Note for example section 35. (1) (a)&(b) of CFRN, 1999, as amended): “Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law – (a) in execution of the sentence or order of a court in respect of a criminal offence of which he has been found guilty; (b) by reason of his failure to comply with the order of a court or in order to secure the fulfilment of any obligation imposed upon him by law;”

See the ratio and legal principles established in clear terms by the Supreme Court in the case of CHIBUIKE AMAECHI v. INEC (2008) 5 NWLR (Pt 1080) where the Apex Court (per George Adesola Oguntade, J.S.C) had declared as follows? “I say again that convictions for offences and imposition of penalties and punishments are matters appertaining exclusively to judicial power…. An indictment is no more than an accusation… once a person is accused of a criminal offence, he must be tried in a court of law or other tribunal where the complaints of his accusers can be ventilated in public and where he would be sure of getting a fair hearing. …The jurisdiction and authority of the courts of this country cannot be usurped by either the Executive or the Legislative branch of the Federal or State Government under any guise or pretext whatsoever…. It is not a simple matter to find a citizen of Nigeria guilty of a criminal offence without first ensuring that he is given a fair trial before a Court of Law….It is simply impermissible under a civilized system of law to find a person guilty of a criminal offence without first affording him the opportunity of a trial before a court of law in the country. Even during the trial the burden to prove his guilt beyond reasonable doubt is on the accuser Indeed, it is a subversion of the law and an unconcealed attempt to politicize the investigation and prosecution of criminal offences to hold otherwise.” 5⃣ Article 4 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, CAP A9, LFN, 2004 to the effect that “no one may be arbitrarily deprived of this right?”

6. Note the effect of Article 7(1)(b) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, CAP A9, LFN, 2004 that “every individual shall have the right to have his cause heard without prejudice? Does this not comprise, as Article 7 states, the right to be presumed innocent until proven guilty by a competent court or tribunal?

8. Further, a major part of the cardinal duties of the state or prosecutor in criminal proceedings as reinforced in the case of *Enahoro v. The State (1965)* 1 All NLR 125 is to be just, impartial and fair and to not persecute or victimize accused persons to achieve illegal ends. The prosecutor has an added duty to refrain from trying to obtain conviction at all cost. Hence in R.  Sugarman (1936) 25 Cr. App. R. 109, the Criminal Appeal Court (UK) had warned that “the business of the state counsel is fairly and impartially to exhibit all the facts to the jury. The crown has no interest in procuring a conviction but that the right person be convicted..” Put differently, the function of the state or the prosecutor under the Constitution is not to tack as many skins of victims as possible against the wall; it is rather to vindicate the rights of the people as expressed in the laws and to give those accused of crime a fair trial (Hon JUSTICE WILLIAMS ORVILLE DOUGLAS). Justice, though due to the accuser and the society, is due to the accused also. The concept of fairness cannot be strained till it is narrowed down to a filament; we are to keep our balance true (HON JUSTICE BENJAMIN CARDOZO in Snyder v. Massachusetts, 291 U.S. 97, 122 (1934).

9. The import of all these is that punishment for breach of any law must be done in line with procedures and processes set down by law. Therein lies the indispensability of the supremacy and applicability of rule of law. Anything short of this takes us back to the age of “might is right,” which would usher in an end to constitutionalism and decency, civility and order. It might as well be an end to the existence of an organized state.

10. The accused person does not have any statutory burden/duty of proving his innocence; else we all, one and all, would be at the mercy of the state and the individual whims of the state leaders.

11. The greatest and safest way to civility and progress for any society is for the society to embrace rule of law as its inviolable creed, to which both the leaders and the led are subject. Any action of the people, the leaders and anyone, however well intentioned, if it runs contrary to the dictates of rule of law is an anathema and constitutes a grave threat to the foundation of society, being  an invitation to chaos. A society that ignores rule of law welcomes rule by arbitrariness and the subjective predilections of people in authority. Rule of law is the basis for any functional democracy. And without rule of law in a democracy, chaos becomes the norm. As Mahmoud Abbas once declared, we cannot build the foundations of a state without rule of law. Perhaps, the wise words of one-time American army general, statesman and 34th President of the USA, Dwight D. Eisenhower (1890-1969) would help to drive this point securely home: “the clearest way to show what the rule of law means to us in our everyday life is to recall what could happen when there is no rule of law.”

12. Finally on this, the rule of law establishes principles that constrain the power of governments and public bodies, obliging each to conduct himself/herself/itself according to a series of prescribed and publicly known rules. This is why Obaseki, JSC, stated in the Military Governor of Lagos State vs. Ojukwu (2001) FWLR (Part 50) 1779 at 1802, para B-E, “the Nigerian Constitution is founded on the rule of law, the primary meaning of which is that everything must be done according to law.” .

13. What more can I say on this? It is a truism already that evidence of suspicion no matter how strong and/or evidence of the opportunity to commit the offence charged does not and cannot replace legal proof of the commission of the criminal allegation against the person charged with the offence (see Abieke and Anor. v. State (1975) N.S.C.C. 404 at 408; (1975) LPELR-8042(SC). This position is reinforced in the case of Samuel Bozin v. The State (1985) 7 SC 450 where the supreme court had declared that “suspicion, however grave does not amount to legal proof.”

14. Finally, in another Supreme Court case, Osarodion Okoro v. The Sate (1988) SC (Part II) 83, it was held that “the protection of the accused person who is presumed to be innocent cannot be curtailed by the strength of the case founded on suspicion, however strong. A conviction must be founded on evidence establishing the guilt of an accused beyond reasonable doubt.”

15. It is however unfortunate that all I hear in Nigeria is pretty much of people’s calling out to punish the guilty with only very few concerned to clear the innocent. This becomes much more worrisome when such emanates from legal practitioners who are expected themselves to be custodians and advocates of rule of law and due process, irrespective of their political or sectional leanings. The lawyer is not just a mere citizen, but a minister of justice, a member of an honourable,  learned profession and as such is expected by Rule 1 of the Rules of Professional Conduct for Legal Practitioners in Nigeria (2007) to always to uphold and observe the rule of law and to promote and foster the cause of justice. By the very special nature of their calling, lawyers have an added responsibility to educate the public on the core demands of law of evidence, due process, and rule of law. Specifically, the lawyer has a duty to accentuate the difference between a mere “accusation/speculation,” and verified information or statement. These duties and functions lay on the lawyer a variety of legal and moral obligations towards the public for whom the existence of a free and independent profession itself is an essential means of safeguarding human rights in face of the awesome power of the state and other interests in society (Balin Hazarika: 2012). If Nigerian lawyers for whatever reasons fail in these core duties, our hope of building, sustaining and advancing true democracy and constitutionalism would become a mirage.”*

Having not rebutted the said statement credited to him, one would be right to take it that Prof Ojukwu indeed made the Statement. For the records, Prof Ojukwu came distant third in the last NBA Election and he is not contesting the outcome of the said Election in any Court in Nigeria. He is therefore deemed to have accepted the outcome of the said election. Prof Ojukwu’s comment that he was ‘rigged out of the NBA Election’ underscores his ill-motive and desperation which manifest in the pull-him-down campaign he has mounted against Mr. Usoro since the latter assumed office as the NBA President. How can you assert that you were rigged out in an election which outcome you accepted and did not contest in a Court of Law. How much more unprofessorial can a professor of law be with such a careless statement?

Whichever way one views Prof Ojukwu’s statement, it is neither supported by law nor logic and his recourse to the doctrine of necessity only demonstrates his helplessness and frustration. Prof Ojukwu reminds me of Dr Odinkalu and it is not a surprise that both of them have been working together giving credence to the saying that birds of the same feather flock together. For the discerning minds, Ojukwu’s call for Mr. Usoro’s step aside or resignation reveals the deep hypocrisy that pervades our society today where lawyers thwart the settled principle of law to suit their selfish needs.

First, Ojukwu from his statement refused to even acknowledge the Constitutional presumption of innocence provided under *_Section 36(5) of the 1999 Constitution_* which enures in Mr Usoro’s favour. Ojukwu knows of this Constitutional provision and must have tutored his teaming students on the sanctity of the presumption of innocence. He must have argued before various Judges on the need to uphold this hallowed principle in defence of his Clients. He didn’t not even make any feeble attempt to distinguish its applicability in Mr. Usoro’s case before finding shelter in his contrived doctrine of necessity.

Prof Ojukwu acknowledged that at the moment, Mr. Usoro has neither been served with any charge nor arraigned before any Court. It follows that, he, Ojukwu has not even seen a copy of the Charge in question let alone the proof of evidence, other than on social media. On what basis did he premise his call that once Mr. Usoro is arraigned, he will call or write him to step down. Is it not possible that the Charge is bereft of any merit which explains why Prof Ojukwu should have been circumspect and avoid making baseless statement as this, at least until he sees the proof of evidence?

Clearly, there is no doubt that Ojukwu is one of those orchestrating the malicious charge against Mr Usoro in a bid to pull him down.

People don’t just resign from office becuase they are accused of a crime. If it were not so, all that it would take to have a Governor or President resign from office is to cook up some charges against him and then ask him to resign. Mr Usoro’s only crime is that he worked for Akwa Ibom State and Governor Udom Emmanuel and received his professional fees. It is on this basis that Prof Ojukwu is calling on him to take a leave avoiding to use the exact word “resign” which according to Ojukwu is not necessary under the circumstances.

Just recently, Senate President Bukola Saraki had charges filed against him for offences allegedly committed before he became Senate President. A lot of people including Senior lawyers rallied around Saraki on the ground that the Charge was politically motivated. Some of these same lawyers who insisted that Saraki must not resign as the Senate President are among the ones now asking Mr. Usoro to resign or go on a sabbatical leave. This is just one out of many similar instances. If this is not a hypocrisy of the highest order, what then is? In the same Saraki’s case, even his Party wanted him to resign by all means. The same sore losers in the last NBA Elections are the ones calling on Mr. Usoro to resign his position just because he collected his professional fees.

The call for Mr. Usoro to resign is even laughable when one considers the peculiar circumstances of the Charge. As acknowledged by Ojukwu, the Offences with which Mr. Usoro is charged are not directly connected with the office of President of NBA. This again further justifies the frivolity of the call for Mr. Usoro to resign.

Second, and as the learned Prof acknowledged, the NBA constitution does not provide that an officer of the NBA would have to step aside when a charge is brought against him.

How then would anyone, and of all people, the learned prof Ojukwu, call for Mr. Usoro’s stepping aside or resignation. What is the constitutional basis? What is this hastily contrived doctrine of necessity our dear Prof speaks of? Can’t we for once look before we leap?

I would have expected Prof Ojukwu to use himself as an example to tell us what he would have done if he were in Mr. Usoro’s shoes so we can hold him by his words and not to wake up to call out for Mr. Usoro to step aside. He ingeniously dodged this line of reasoning that he should have towed. It is quite unfortunate that the professor would singlehandedly, without even sampling the opinions of principal members of the Association, invoke the ‘doctrine of necessity’. It is nothing but a jaundiced view of an embittered and disgruntled loser.

There were a lot of stories making the rounds back then about the character issues that bedevilled the learned Prof while he was a lecturer at the Nigerian Law School. There were allusions to the reasons for the learned Prof’s exit from the Nigerian Law School connected to his inability to cling to the position of the Director General of the NLS, after he had attained the position of a DDG. These issues, if true are those that should preoccupy the mind of the Prof, and not to come out to call for the resignation of the NBA President. Would Prof be happy to be assessed and judged on the basis of all the negative stories about him?

Prof must put an end to this unhealthy and infantile campaign of calumny that has characterized most of his utterances from when Mr. Usoro first declared his intention to run, to this present day. It is childish, unprofessional and demeaning of someone of his status.

The truth is that any lawyer can be prosecuted and charged to court in the manner that Mr. Usoro has been charged, even when as in Mr. Usoro’s instance, it is clear that the lawyer is innocent and that the charges are frivolous and bound to fail.

If we continue to subscribe to this shout of resign and clear your name campaign, we would be creating a monster that would consume sooner than later, its proponents. It is better to err on the side of caution.

 Ogaga Emoghwanre