Orji Kalu has a compelling case to BE GRANTED LEAVE TO TRAVEL
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By: Attorney Aloy Ejimakor
05: 16: 08
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That’s right;
because whether Orji 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 Orji’s true intention is to bring delay to his trial. Lurking
behind this argument is the other speculation that Orji 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 Orji 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 Orji and the
other reason - that Nigeria boasts adequate treatment for Orji’s 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 Orji’s 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 Orji 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 Alamesiegha, 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
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