- By operation of law, Senator Orji Uzor Kalu is now a convict having come under the sentence of a court of competent jurisdiction for sundry criminal offences.
As a convict, he has lost the right of presumption of innocence guaranteed under section 36 of the 1999 Constitution as amended.
- The sentence term has started running meaning also that he has lost his cherished right to liberty and freedom of movement as a free citizen and will be bound by the rules and regulations of the Correctional Services facility where he is serving sentence as an inmate.
- Under the current ACJA, he can not apply for stay of execution but is entitled to apply for bail pending hearing of his appeal which may or may not be granted. Such stop gap applications are not made as of right as he has lost the right to presumption of innocence and such applications are usually seldom granted on very stringent conditions upon good and sufficient reason like failing health.
- However, he is entitled to appeal the sentence as of right to the Court of Appeal and even up to the Supreme Court of Nigeria.
If the Court of Appeal upholds his appeal against the sentence and conviction in the Federal High Court, he regains his freedom and the conviction stands quashed in the eyes of the law. If the Court of Appeal dismisses his appeal, he continues to serve the sentence and is also entitled to proceed upstairs on a further appeal to the Supreme Court.
- As it stands, his seat as Senator remains unencumbered until he exhausts his right of appeal probably at the Supreme Court.
- He can only lose his Senate seat in any of these three circumstances clearly delineated under the law namely-
(i) if he dies while serving the sentence and before the expiration of the term of the 9th Senate imto which he was elected.
(i) If under the circumstances clearly prescribed in section 69 of the 1999 Constitution of Nigeria as amended, he is recalled as a Senator by his constituents. A recall process is tedious anyway but but it is a legal option.
(ii) If under section 68(f) of the 1999 Constitution as amended, his seat as Senator is declared vacant by the Senate President on the ground that he is unable to attend legislative sittings for a minimum period allowed by the Nigerian constitution. In invoking this power, the Senate President must be mindful of the caveat erected under section 68(3) of the 1999 Constitution as amended dealing with absence “without just cause.”
- If on a final appeal to the Supreme Court, the apex court quashes the conviction and sentence, he stands discharged in the matter but if it confirms the conviction and sentence, he stands convicted and will serve the sentence as already imposed or may be varied and will be disqualified from contesting for any future political office until after 10 years after serving.
- Regarding his present position as Chief Whip of the Senate, his political party being APC and the Senate Leadership is at liberty to divest him of such office immediately because he will be unavailable to discharge the functions of that high office and moreso it is an internal affair of the ruling political party and this decision, if taken, will not raise any remarkable legal rucus.
- Finally, the legal reality and political implication of Senator Orji Uzor Kalu’s present travail is that the Senatorial District he is supposed to be representing will remain unrepresented throughout the period of his incaceraton as a prisoner until the matter is resolved in any of the ways outlined above.
Don’t do the crime, if you can’t do the time.
•Obiaraeri is a professor of law