Posted by By ATTORNEY ALOY EJIMAKOR on
That's right; because whether Orji Kalu poses a flight risk or not is the only material or legal question that determines whether or not he should be granted leave to travel, and not the purely speculative reason adduced by the EFCC, without record evidence, that Kalu's true intention is to bring delay to his trial. Lurking behind this argument is the other speculation that he will deliberately go ‘awol' and overstay the date (yet) to be set for his trial to commence.
That's right; because whether Orji Kalu poses a flight risk or not is the only material or legal question that determines whether or not he should be granted leave to travel, and not the purely speculative reason adduced by the EFCC, without record evidence, that Kalu's true intention is to bring delay to his trial. Lurking behind this argument is the other speculation that he will deliberately go ‘awol' and overstay the date (yet) to be set for his trial to commence.
To me and most probably to the court, that's like saying that Kalu is a flight risk without appearing to be saying so. Nigerian superior courts are known to frown at all manners of speculations waxed to look like evidence; and one like this, with nothing to corroborate it except for bare argument of counsel, is prone to be dead on arrival. Thus, EFCC's imputation of dilatory intent to Kalu and the other reason - that Nigeria boasts adequate treatment for his medical condition - are both untenable in law and logic; and here is why.
Since this case began with his arrest back in July last year, Dr. Kalu has not engaged in any dilatory tactics and he has not demonstrated any single tendency to make himself unavailable in court. And no one has accused him of not complying with the conditions of his bond - which were many and onerous. When the EFCC investigation of him got to the point where taking him into custody was imminent and public knowledge, he traveled back to Nigeria from the United States on his own freewill. It was reported then that his closest associates, convinced that the charges levied against him stemmed from a carried-over political witch-hunt, had advised him to stay put in the US but Kalu would have none of that.
Recall that EFCC didn't have to file any extradition requests with the US government or take any other coercive action that could be said to have been responsible for forcing his return - which was why his dramatic arrest at the Nnamdi Azikiwe International was considered by many to be in bad taste. Every modern criminal justice system employs liberal bail conditions to reward a defendant who surrenders voluntarily - like Kalu did. The right to travel (within and without) is but a very minimum pay-back such a defendant should expect, especially an Orji Kalu that unarguably possesses personal recognizance of an international scale. Thus, traveling abroad for medical reasons should be an exception to the general travel restrictions that came with his bond. And his strong ties to the homeland are also a huge plus, not counting his prodigious prestige and stature amongst the people of Nigeria - generally, and Igbos - in particular.
The only action Kalu took that can, by some stretch, be said to have thrown a wrench into the proceedings, was to file preliminary objections to his arraignment on the tenor of an un-vacated and competent order of a High Court that barred his prosecution. Under our adversarial system of justice, Kalu is well within his procedural and substantive rights to file that objection; and for good measure, AG Andoakaa concurred publicly at the time and even waxed overtly aggressive on it. It is standard practice for a defendant to bring any motions that he reasonably believes will assist in his defense; and should his lawyers have advised him against filing the objection, that would have been considered ineffective assistance of counsel by any standard.
Pointing to such a routine defensive maneuver to establish dilatory intent sounds like a brazen attempt at misplaced retaliation, and that cannot stand at law.
How can Kalu cause delay in a process that he does not control? Kalu possesses neither the docket control nor the prosecutorial fiat. He is not the one that sets the calendar call for the case. And once trial is set and he fails to return to Nigeria, the judge reserves the discretion to proceed in absentia, revoke his bond, declare him a federal fugitive, and the government can commence extradition proceedings against him. In other words, the consequence of failure to appear (FTA) is virtually nil for the EFCC but legion for Kalu. FTA will make the whole case a lot easier for the EFCC - in the sense that it offers the agency the golden opportunity to prevail on a default judgment of conviction. And when you begin to imagine Dr. Orji Uzor Kalu - the maestro and international business mogul extraordinaire - as a fugitive from justice, fleeing from a nation he intends to lead in the future, it just doesn't fit. Believe me; it doesn't, by any stretch.
Recall that it was not Kalu but the EFCC that has been lax in bringing the case to trial or closure, if you will. What with the messy spat between the EFCC and Andoakaa over matters of policy and process, all the drag that issued from the first amendment of charges, Ribadu's controversial and delay-causing deployment to Kuru, the time lag for all the swirling dust to settle, and then finally, another midstream amendment of charges just weeks ago that will again bring opportunities for new motions, new pleas, new preliminary hearings, new objections and their counters. And if EFCC can point to any white-collar case of this complexity and high political drama that it has concluded in less than six months, I will be the first fan to be impressed by its fears that Kalu's travel will bring gridlock.
It would have made more sense if EFCC argued that it was ready to try Kalu on the charges coming out of the initial arraignment. But that is not the case here. The trial the EFCC claims Kalu's travel will delay is actually de novo and will have to be conducted on the particulars of the fresh charges preferred as recently as less than some few weeks ago.
So, are we now supposed to buy the hard sale that EFCC has suddenly mustered the prosecutorial efficacy to bring trials to an end in less than the two months or even less that Kalu's medical travel would require? Add the fact that the court is yet to set a firm date for trial to commence, and this is not because Kalu moved for any continuances. It is because the EFCC has not yet moved that it is ready to go to trial; and even when moved, the final gavel will fall on the discretion and convenience of the court. That means that the trial being bandied around as if it is imminent is still, in reality, a tall order.
Taking on the other reason for EFCC's objections - that there are physicians and medications in Nigeria that can treat Kalu's medical condition may even be less complex because, upon closer scrutiny, you begin to see that it is a position that can hardly hold water. Much as it is easy for the EFCC to make such bare assertions, the legalities of whether Kalu is entitled to have his request granted or not will turn on the following equities or lack thereof. First, it is a universal rule of the thumb that an ailing individual alone possesses the unfettered right to consult a physician of his choice.
The exception that comes to mind is where the person lacks the legal or mental capacity to make an informed choice as a result of being a minor or was in such a state that medical decisions for him must be taken by third parties. The other exception can be found in where such a person is convicted and confined to a penitentiary, and thus can be said to have lost the liberty of exercising his own free choice. Kalu remains merely charged and arraigned but as yet un-convicted. This anchors his right to choose his own physician on a stronger pedestal and thus countervails everything else claimed to the contrary.
Second, the seriousness of the medical condition comes into play. Here, everyone who reads newspapers knows that Kalu is asthmatic. And credible people who are close to him both in Nigeria and here in the United States have confirmed that he is on constant medication he fills on the prescription of his US-based physician(s) and that he uses some kind of a patented inhaler to inhibit attacks. In the US, federal law generally prohibits prescription of certain non-generic drugs/invasive devices without the patient being physically present before the attending physician. It is also on record that, on account of his ailment, Kalu avoids dusty places, is wary of pollens, and cannot tolerate places that are suffused with smoke, either of the automobile exhaust variety or even from a smoker of cigarettes.
Dust is commonplace in Nigeria but pollen is not, except during this time of the year when it erupts and persists for some three months from seasonal transformations in our vegetations and climate. This might explain why Kalu's physicians time his annual checkups in the US to occur anywhere between May and August in order to harness the therapeutic effects of exposing him to a less pollen-infested environment. Recall that it was also during the same period last year that Kalu traveled to the US to receive treatment. Thus, a medical condition with that many triggers doesn't sound like the common cold - which is not a serious ailment. According to respected medical journals, asthma is a complex and very serious terminal condition.
Third, you weigh the merits of EFCC's argument that treatment for asthma exists in Nigeria. Well, that is a truism and also dicey to rebut because any opposite postulate may sound like defamation of Nigeria. Yet, the point must be made that the dispositive question is not local availability of treatment per se but how cutting-edge and confidence-inducing the treatment is; and whether the mere availability of treatment locally should override an innocent citizen's right to choose the locale and quality of his medical care. Yes, Nigerian doctors are well trained, like other doctors from around the world, to treat all illnesses including the one ailing our President Yar'Adua, yet folks still find cause to seek treatment for the same aliments overseas. Kalu's should not be the exception.
Add the additional fact that Kalu, according to credible accounts, has always had his medical condition managed in the US for well over a decade before he came under pain of the present prosecution. That means that his choice to go abroad to receive treatment is long vested and thus cannot be said to be an afterthought motivated by his present circumstances. Allopathic physicians will tell you that the treatment and medications they give you will work far better when you believe that they do. Kalu believes in the physicians already treating him and may not believe in any new ones that might be forced on him regardless of how competent they are. That's partly why Atiku had to put his campaign stumps on hold to rush abroad to treat a bad knee.
Finally, we must recall the consequences of EFCC's successful objections to prior requests by others for leave to seek treatment abroad. Consequence number one was fatal and that was late Hon. Maurice Ibekwe, whose desperate pleas were denied on a similar argument now being advanced by the EFCC against Kalu. Consequence number two was a near-miss and that was DS. A Alamieyesiegha, who nearly lost his life for the same reason. As it turned out, both incidents were PR disasters for an agency that thrives on public goodwill. Keeping these in mind, it might be better for the EFCC to dispense with the travel restrictions now by mutual stipulation instead of having to deal with it after trial has picked up steam. This is a point to ponder in the count down to May 22.
• Ejimakor is of Law Group, Washington DC alloylaw@yahoo.com