-Lawyers, Activist Itemise Loopholes
Both the Economic and Financial Crimes (EFCC) and the Independent Corrupt Practices and other related offences Commission (ICPC) are bodies charged with the responsibility of bringing corrupt offenders to book – regardless of their social or financial status; besides, nobody is above the law!
But unfortunately, these bodies have fallen shy of expectations, failing to make certain corrupt individuals – especially highly placed ones face the consequences of their actions as prescribed by law. The list of their failures when they come up against personalities with financial mien is a long one indeed.
ENCOMIUM Weekly sought the thought of lawyers and rights activist on this worrying trend…
‘They are not prepared to pay the price of fighting corruption‘ -Malachy Ugwumadu, Legal practitioner
Broadly speaking, there is a huge contradiction when you expect government institutions to successfully engage or execute the war on corruption reliant on government. It is supposed to be a process independent of government itself – from formation, to appointment, to the modalities of operation, to capacity building and prosecution. But what we’ve had, being a pilot exercise, is that it is the same government against whom these agencies are supposed to engage that set up the same agencies.
Specifically, I have had the privilege of sitting in meetings involving the leadership of these bodies, and there are two reasons that EFCC, ICPC and other agencies set up to fight corruption cannot work; it is either the leadership and those driving the process are not prepared to pay the price of fighting corruption in a totally flawed society like ours; or there is the issue of compromise even on their part.
Another reason is the extraneous factors that are not within their total control and that’s the judiciary. If the judiciary as a body and arm of government is also not in tune or not properly wired to support the campaign against corruption, chances are that all the efforts at executive level and legislative would be frustrated.
It is for this reason that the present debate regarding whether it is proper for a stay of prosecution to continue to be even when the law itself, that is the Administration of Criminal Justice Act 2015
(section 306 and section 396, sub section 2), prohibits it. It is for these reasons that those provisions were enacted in that legislation. Yet, we have seen the Supreme Court ignore it, declaring that stay of
prosecution can continue. What it does is that it strengthens the arm of politically-exposed
persons, in the sense that, they can now bring an application stalling the proceedings of the court and to seek an appeal where they would spend more than 10, 11 years. The Al-Mustapha case took 12 years
before it was decided because of interlocutory application. The Abacha case took more than 12 years. As I speak to you, the trial of Chimaroke Nnamani is still going on, Ndume, Farouk Lawan, all of them on trial, yet you can’t jail any. Those are the extraneous factors beyond the control of the agencies saddled with the fight against corruption.
Again, the quality of the investigation is another point.
The case can be won or lost at the level of investigation, but if the investigation is poorly conducted, there’s nothing you can do. It would be easy for the defence to wriggle out of it.
I’m sure you could see that in the James Ibori case, and even Diezani’s.
‘They are not serious and are lackadaisical in their approach’ -Jonathan Iyieke, Legal practitioner
It’s a technical issue. I say technical because to convict someone who is alleged to have stolen some money or committed other crimes, the prosecution must prove its case beyond all reasonable doubt.
My worry is that most times, they create a loophole which allows the person to go free. But a serious prosecutor would ensure that he does all that is necessary to bring the defendant to book, but in a situation where the EFCC which is the agent charged with this does not have sufficient evidence, or what we call prima facie evidence such evidence that would lead to the conviction of the defendant.
We are lackadaisical in our approach to issues, we are not serious! Failing to secure conviction after gathering evidence from different quarters is a sign that you are not even sure of yourself and your case. So, I would say the EFCC is not serious.
But on the flip side, I would reconsider that stance because none of these people who they have taken to court has filed a suit against them for malicious prosecution. The law is that if you allege that somebody committed an offence, it is the duty of the prosecution to prove their case beyond reasonable doubt, but when they fail, the onus is on the defendant to seek a redress, asking the court to award him a compensation as his name has been rubbed in the mud. But since that is not the case, it implies that the person probably committed the offence, but maybe due to lapses in the criminal proceedings, the person went scot-free.
Take Saraki’s case for example, the composition of the tribunal sitting on the matter can be questioned constitutionally. And I don’t believe that whoever is sitting on the matter does not know that constitutionally, the panel must have been composed completely before they can sit on such matters. When a constitutional issue is to be, a panel of five must sit, while at the Supreme Court, a panel of seven must sit. But where a panel short of five at the Appeal Court is sitting, then they are making mockery of the constitution which gave the right to sit in the first place. So, I am of the opinion that the EFCC or any other such agency are not serious with the prosecution of the matters, otherwise they would have secured conviction against most of the high profile personalities in Nigeria.
On whether plea bargaining is the way forward, actually, I have gone that way myself. It is a situation where the defendant forfeits what he has stolen for a lesser penalty, say six months instead of three years imprisonment. If what the person has forfeited is genuine, whollistic and frank with nothing hidden, I’m not against plea bargain, it can be allowed.
‘Trials are won and lost on the quality of evidence a prosecution is able to stark against a defendant’ -John Itodo, Legal Practitioner
Criminal cases involving high profile individuals demand a lot to be able to secure a conviction and no amount of media trial as has been the case lately in Nigeria will take the place of credible evidence and savvy advocacy.
Five factors can be considered responsible for the failure of the EFCC and ICPC to secure conviction on high profile individuals. Although, we must acknowledge the fact that Tafa Balogun, Bode George, amongst other high profile individuals were convicted under the EFCC, but those were ages ago.
The factors are: (1) incompetence, (2) corruption, (3) fear of intimidation and threats, (4) political settlements and the fate of a whistle blower and or a star witness and (5) the failure of the masses to ask critical questions or demand accountability.
Let me start by saying that trials are won and lost on the quality of evidence a prosecution is able to stark against a defendant in a criminal matter and not public opinions or the media.
From the little I have said, you will agree with me that a lot depends on the prosecution and not even the judge or justices as the case may be. Mind you the judge or justice represents justice and as you know, justice is blind and I dare say even deaf, so she does not see or hear all the razzmatazz in the media or public opinion. She only feels the weight of evidence in her hands, and act according to the weight of evidence, period! That’s why my heart bleeds each time a judge takes the stick when a high profile case is thrown out and the judge is labelled as corrupt, without asking what were the prosecution and his witnesses able to present to the court and how the prosecution witnesses fared under cross examination, these are critical questions.
Let me say that I’m not suggesting that every judge in Nigeria is a saint but it is difficult to bribe a judge to help your cause when the prosecutor and or those on his side have failed to adduce credible evidence to secure conviction.
Back to competence that I mentioned, there are probably as many genres of crime as they are human beings. Every crime is unique and has its dynamics and the prosecution must prove those dynamics to secure conviction.
Because the core actors -Investigators, prosecutors, and the court have not been allowed to develop core competence and expertise in a particular area or aspect of criminal law practice, you find out that they become Jack of all trades, Master of none. For us to achieve maximum impact in our criminal judicial system, we need to have specific people for specific crimes, that way they would develop core competence and it will be difficult for the defence counsel to fault the prosecution and create doubts in the mind of the judge which will be resolved in favour of the defendant.
This should also be replicated in the investigating and prosecuting teams marching each team with area of his/her core competence. Closely related to this, is corruption. This is simple. Criminal prosecution lies on the prosecuting team (prosecutor, investigators and prosecution witnesses) if the defendant can infiltrate (let’s keep it simple, bribe) any member of the prosecuting team, then that case, no matter how beautiful, is dead on arrival. Mind you, everything rises and falls on evidence. If the investigator took bribe and refused to properly investigate or turn a blind eye to germane facts he could have unearthed in the course of his investigation, tell me how well the prosecutor will fare at trial. And what do you expect the judge to do. Some time, the Investigator did his work thoroughly and the accused is flat on his face with long jail term starring him in the face but no witness or the witness comes but ‘mis-yarns'(please permit me to be colloquial here) in court, what can the prosecutor or the court do. Another reason why high profile cases seem to almost always go scot free is threat or fear of intimidation, death, molestation, etc.
The prosecution needs his investigators to do a thorough job and for his witnesses to turn up in court. Where an investigator or a witness is threatened or even killed, what do you think will be the fate of the matter. It may not even be threat or other malaise but the fact that the oga being tried now was good and generous to his subordinates while in office from the loots and the staff who should volunteer accurate
information to the investigator are subtly not yielding. What can the prosecution team do.
Another factor is political settlement. Imagine if I opened the lid to a can of worms and at the end of the day the culprit politically settles the matter and even gets a pat on the back with an important appointment at the federal level, what do you think will be the fate of the whistle blower or witness. Don’t forget that witnesses give evidence and cases are lost and won on evidence. In advance climes, you have independent prosecutors/investigators to help the state, e.g Ken Starr in Clinton/Lewinsky’s case but here in Nigeria it is not so.
Finally, the masses should ask questions and follow through on matters, irrespective of political affiliations. For example, a certain Australian negotiator indicted Gen. Iheajiraka (Former CAS under GEJ) as the sponsor of Boko Haram and the noise was all over the place then, even APC said things then. Now they are in power and they are busy looking for Boko Haram sponsors and this man they said a lot about is free out there, the masses are silent on it. These are some of the ills plaguing criminal cases involving high profiled individuals and the solutions are not farfetched. Do the opposite of what I identified and we are good to go.
On plea bargaining, while the concept is good, which is to save valuable judicial time and energy by trading off a possible long jail term for shorter one if the accused can own up and return his loots. In Nigeria however, as it is with our social strata, give one mile and the person will take a million. Here, people now loot x10 of what they originally set out to loot with the hope that when the long arm of the law catches up, they will plea bargain, give up a chunk of their loots and unjust enrichment and as it is typical, they will go their way to enjoy the remaining loot.
Sometimes some ‘smart’ trials may be arranged and conducted where persons are discharged and acquitted (which means he cannot again be charged with similar offence) and their acquittal become a reference point against any commentary against them in the future.
’The bar is not helping matters’ -Sulaimon Arigbabu, Rights activist
The first challenge is the lack of political will to combat corruption. That is why in the past, the anti-graft agencies had to be looking at the body language of the government of the day before deciding on who to pursue or not. Also, we have seen situations in the past where the attorney general would file for an non linon in a matter of national importance against so-called sacred cows. Another thing is that security of tenure does not exist. In fact, they are kind of tied to the appendage of the executive. Also, our laws make it difficult to properly charge people who are guilty of corruption.
For instance, if somebody is guilty of stealing, such person may get seven years or more depending on what the person has stolen. But some of the other issues under which corruption cases are tried, say misappropriation, they carry life sentence. So, sometimes, in an attempt to find a way to make sure that the person serves, you find the anti-corruption agency filing 100 or 300-count charges, and by the time you knock off one, the others will come crumbling down. It also means that the investigative and prosecution capacity is called to question.
Another thing is that most of the time, those that are charged with anti-corruption will have the opportunity of having the best legal minds with them. The bar has also not helped. You find senior lawyers filing frivolous objections and frustrating the pace of the criminal justice system.
These are some of the issues that need to be addressed. We need to have some people in the administration of justice system board; we need to have reform in the practice itself, we need to give security of tenure to these people so that they are not afraid that the president can just remove them if they fall on his wrong side.
Also, provisions like the Freedom of Information (FoI) Act are still not given life. Most government agencies still do not respond favourably to requests that come under the FoI Act. Perhaps, addressing all these might also lead to the separating of the office of the attorney general from that of the minister of justice. These are some of the critical concerns.
A few of the failed/pending cases in the political circle
Erstwhile Delta state governor, James Ibori was arraigned on 170 state counts in a N9.2b case. His lawyer challenged Kaduna Federal Court jurisdiction, he lost at the trial court but won at Appeal Court. The case was re-assigned by Chief Justice to Asaba Federal High Court. Without taking plea, suspect applied to quash charges, prosecution opposed application but trial judge eventually quashed the charges. Long story short, he was found guilty of the same charges in the United Kingdom (UK).
Chimaroke Nnamani, former Enugu state governor, was arraigned on 105 state counts in a N5.3b case. Plea already taken but case is stalled as defence lawyer filed to transfer case to another judge on allegation of bias against trial judge even as counsel has again filed to challenge court jurisdiction.
Orji Uzor Kalu, after more than eight years, since he left office as Abia state governor, still has a pending case. He was arraigned on 107 state counts in a N5b case. Plea already taken at Federal High Court, Maitama, Abuja but defence lawyer raised preliminary objection against charges. Lost at trial court but has gone on appeal to stay trial.
Outside the government circle
The ICPC filed a six-count charge against Sunday Ehindero, ex-Inspector General of Police and John Obaniyi, the suspended Commissioner of Police-in-charge of Budget at the Force Headquarters at the High Court, sitting in Abuja.
Former CEO of the defunct Bank PHB, Francis Atuche, was arraigned at the Federal High Court, Ikoyi, Lagos, on a 26-count charge. Plea taken, but suspect challenged charges. Matter is set for trial as court upholds charges.
Former boss of the now-defunct Intercontinental Bank, Erastus Akingbola and his business associate, Mr. Bayo Dada were arraigned at the Lagos High Court, Ikeja, Lagos, on 22-count of stealing N47.1bn belonging to the bank.