NIGERIA: A CRIMINAL JUSTICE SYSTEM IN STATE OF CRISIS By Emeka Ugwuonye, Esq.

NIGERIA: A CRIMINAL JUSTICE SYSTEM IN STATE OF CRISIS

By Emeka Ugwuonye, Esquire

President, Eculaw Group

(Dedicated to The Due Process Advocates Group)

DELIVERED AT THE 3RD ANNUAL MEETING / CONFERENCE OF AFRICAN FUTURE FOUNDATION. 

Date: May 30, 2013

Venue: Nigerian Institute of International Affairs, 13/15 Kofo Abayomi Street, Victoria Island, Lagos, Nigeria.

INTRODUCTION: It is a most daunting task to be placed in a position where one has to explain the Nigerian legal system, especially that part that deals with the administration of criminal justice, i.e., the processes for punishing those who commit crimes, protecting the victims of crimes while preserving the rule of law. From this modest and simplistic description of the administration of criminal justice, it is clear that we need to have a correct and comprehensive view of what the criminal justice system is and what it ought to be.

Without seeking to exhaust all the theoretical and analytical attributes of the system, it will do if only we acknowledge the following factors. The first attribute is the clear delineation of conducts that are forbidden as crimes and the consequences of engaging in those conducts. Such conducts are called crimes or offences and those who engage in them are amenable to prosecution by the State and punishment upon conviction. It must also reflect a consistent and genuine commitment to the protection of actual and potential victims of crimes. And finally, it must be done in accordance with procedures that are transparent, predictable, general and non-discriminatory and efficient in application.

The question before us is whether we have in Nigeria a criminal justice system that measure up to these attributes. And the purpose of my paper is to evaluate in some fashion the realities on the ground and then attempt to answer that principal question. And without meaning to preempt myself, I would state that Nigeria fails to measure up to the acceptable standards, and that failure has reached a crisis stage. Hence the caption of this paper.

Delineation of Criminal Conduct:

Early in the development of our legal system, Nigerian inherited a body of laws that were applicable as criminal law of Britain, but not without some major difference to reflect some core values of the Nigerian society. We ended up with two major strands of criminal law – one for the Southern Nigeria and the other for the Northern Nigeria. The important point is that Nigeria, like other countries, had set out to establish a criminal law system that would clearly delineate what is a crime and what is not, and what punishment would go with each crime. The general view is to condemn criminal conducts and to view negatively those who engage in such conducts.

What no one wanted was a situation where criminals or people who commit crimes could be viewed as heroes. However, this was what actually ended up happening over time. Criminals became heroes and statesmen. It is not difficult to remember, even if we cannot explain, that we ended up in such a situation. But one can run a list of instances on one’s fingertips. Treason, for instance, is a crime that ought to send a person to jail if not to execution. But in Nigeria, starting from 1966, rather than go to jail for treason, treasonable conducts produced the most notable among Nigerian statesmen. Whether one is willing to admit it or not, we ended up with a situation where a criminal by conduct became a statesman by law. Thus began the systematic blurring of the lines that delineated crime as a bad thing.

Years after 1966, we have had continued pervasive blurring of nearly all the lines that separate crime from legitimate activities. For instance, the process of winning elections in Nigeria and holding public office is corrupt and inherently criminal almost across the board. The process of appointing public officials is corrupt and inherently criminal. The process of awarding government contracts is corrupt and inherently criminal. The process of allocation of oil blocks, which remains the single most significant means of allocation of economic wealth in Nigeria, is terribly corrupt and inherently criminal. The process of allocation of land or real estate in Nigeria, particularly in the metropolis is corrupt and inherently criminal. The process of formulating and implementing basic government policies and programs such as the construction of roads, hospital and other public infrastructure is corrupt and inherently criminal. It therefore means that if you are a successful Nigerian elite today, you have probably engaged in corruption somehow and you are probably inherently a criminal.

This is a particularly troubling conclusion or finding because it forces us to begin to redefine our understanding of criminality and the essence of the state. We simply do not agree, by our conducts, on what is a crime most of the time. And we cannot agree on who is a criminal anymore. How then can you effectively deploy the criminal systems system for the betterment of the Nigerian society, for the protection of the vulnerable victims of criminal conduct and for the good heath of the state? This is the first step and Nigeria failed it woefully.

Protection of the Victims of Criminal Conduct:

The fact that Nigerians tend to become confused on what conduct is criminal and what is not, the fact is that we still can see everywhere the victims of criminal conducts. If the reason the roads are not constructed was because of the crime of corruption, then every road user, particularly those who lost their lives and those who could not afford helicopters and private jets are victims of the underlying criminal conduct. If the reason our hospitals are not equipped is because of corruption, then we have many Nigerians who have not been treated as victims, particularly those who could afford to travel overseas for medical treatment. If you look at it really, we have millions of Nigerians as victims of the criminality of those in leadership and privileged positions.

An important objective behind a country’s criminal justice system is to protect the victims of crimes. The degree to which this objective is implemented would explain the difference between extreme cases of corruption where the public official embezzle 100% of the funds designated for public works and cases where they embezzle only 10 to 20%.

The danger inherent is that the failure of the state to protect the victims of crime tends to lead to a rapid increase in crime and the worsening of the crisis of the administration of justice. Why is it today that you cannot see the Nigerian elites ride in convertible automobiles in the Nigerian streets? Why is it that Nigeria is marked as the fastest growing market for bulletproof vehicles? All are signs of the worsening state of violent crimes in Nigeria. Whereas the elite focus more on non-violent crimes like corruption, the expanding list of the victims of those non-violent but extremely dangerous crimes focus more on violent crimes.

At the bottom of the list of victims of crimes are the very truly vulnerable members of the society who are incapable of resorting to crime to survive or who are caught in what could be described as responsive criminality. For example, a young girl that is forced into prostitution because the crimes of her leaders have denied her employment and education, though also a criminal is so because of the higher crimes of others. Another aspect of such responsive criminality is that such crimes exist to further the crimes of the elite, who have money to pay for the services of prostitutes, for instance. The young prostitutes and lesser criminals fall prey either with their dead bodies found in ditches or cut up by ritualists and merchants in human body parts. Just as criminality scales down from the elite to the ultimate victims, a government policy that aims to protect the victims tends to push back on crime from bottom toward the top where crimes originate the most in a society like ours.

Nigeria’s inability to protect the victims of crime is glaring and troubling, and marks another indicator of the crisis in the system.

Fair and transparent procedure for the prosecution of criminals:

Central to the administration of criminal justice is the question of due process safeguards and general fairness. All modern jurisdictions have rules and procedures that govern the process through which a criminal suspect is apprehended, prosecuted and punished if found guilty after trial.

These rules of procedure tend to have certain features in common. First, they must be transparent, meaning that all decisions in the direction of prosecution of a suspect are based on rules that are easily understandable and general in application. You do not have certain rules for certain people and a different set of rules for others. This is what has been variously described as the selective prosecution of the Economic and Financial Crimes Commission (EFCC).

The Nigerian constitution has set forth a number of the due process standards to ensure that our administration of justice reflects rule of law and fairness. These constitutional standards include the provisions of the constitution dealing with fair hearing. Nobody is to be convicted of a crime except for crimes that have been clearly established by law and in existence before the time the act constituting the offence occurred. Part of that standard includes the requirement that a person arrested by the police (a term that includes all the law enforcement agencies such as EFCC, NDLEA, Customs, ICPC, SSS, etc.) must be taken to a judge within 24 hours or 48 hours, as the case might be. The effective position of the constitution on this is that a person cannot be detained more than 48 hours without a court order. It wants that decision to be a judicial and judicious, and not an executive one. There is a constitutional requirement that the accused person could not be forced to testify in his trial, but would have the opportunity to confront witness against him and to controvert the evidence of the state against him. Also, the accused person must be presumed innocent until proven guilty. And further, the accused shall have the right to be defended by counsel of his own choice. These standards exist in the Constitution. The only problem is that they are not followed in practice. This becomes clearly understandable by looking at our prison statistics.

The Prison Statistics:

In 2011, it was published in some Nigerian newspapers that over 90% of the total inmates of all Nigerian prisons were not convicted of any crimes yet. While many of the inmates of Nigerian prisons are undergoing trials while in detention, many others are in various states where there is no active trial going on in their cases. In most of these cases, the accused persons in detention have spent as much time as (or longer than) the maximum jail term prescribed by law for the offences they are charged with.

When I read this in 2011, I thought the story could not be true. But I thought I should investigate a bit. I found out to my greatest shock that the report was indeed true. Over 90% of those in Nigeria’s prisons all over the country are actually innocent. One must immediately find such situation intolerable.

THE PROBLEM: There is no way the overwhelming majority of prison inmates could be innocent and this country continues as if all is well. As I tried to explore fully the pattern of this abnormality that has clearly grown into a crisis, I discovered a criminal justice system that is dysfunctional and totally broken down. Indeed, there is a huge disaster that has been long overdue.

Many factors led to this situation. First, there is a highly corrupt police authority, which harbors policemen that focus on bribes and various forms of corrupt enrichment in the processing of criminal cases in matters such as arrests, detentions, charging of suspects and even prosecution of criminal cases. Second, there is a court system that is dysfunctional and which has some corrupt and incompetent judges and other court officials who lack the rigor and professional commitment it takes to process cases in an efficient manner. Third, you have a perennial shortage of resources and funding that would have been needed to equip the courts and adequately staff them to ensure speedy and efficient dispensation of justice. The Government of Nigeria and the States fail to make sufficient budgetary allocations for the efficient running of the courts. As a result, the courts lack basic amenities that they need to function even minimally.

In addition to the above causes, you have incomplete and outdated laws and rules relating to the administration of justice. These laws are not adequately modernized to ensure a smooth and efficient court process. These rules in the books impose extreme impediments for those caught in the webs of our criminal justice. An obvious example is the constant, but unjustified, position of most Nigerian judges that demand a written bail application in criminal cases. Even though a bail application can be made orally in an open court, most Nigerian judges these days insist on a written bail application. And the law had remained equivocal on the issue. Once a judge demands a written bail application, that could easily cause a suspect to spend two months in detention before the bail application is disposed of.

Another factor that speaks to judicial incompetence is the tendency of the judges to take long adjournments to rule on bail applications. Even though these applications are routine and the legal issues involved are relatively straightforward and the factual issues are easy to determine, it is common for Nigerian judges to adjourn for weeks and months just to rule on a bail application that has been argued before them. During the period of such adjournments the accused remains in custody without trial. There is also the astonishing tendency by Nigerian judges to deny bail on flimsy excuses. The most common excuse given for denying bail comes in form of a promise by the judge to endure a speedy trial. However, the so-called speedy trials take years to complete.

The crisis is further compounded by the existence of a weak and highly disorganized and undisciplined bar. The Nigerian bar groups have repeatedly failed to rise as a body to challenge the nasty situation where 90% of the people in prison (many of whom are their clients) remain in prison for years while awaiting trial even for minor offences. The failure of the Nigerian Bar Associations, as a body, to address this crisis in any meaningful way sticks out as an open wound in the organization’s development.

As this crisis built up, Nigeria has no meaningful way to redress it, either by reforming the criminal justice system to reduce the inflow of suspects and accused persons into the category of those trapped in prison for years awaiting trial; or to find a way for providing speedy trials for the cases of inmates awaiting trial in the prisons. What has happened over the years is the token gesture of the few prisoners pardoned by the President or Governors each festivity period. The problem with such feeble gestures is that it only applies to convicted prisoners, who are very few in number, rather than to the most deserving of freedom – the unconvicted and the yet-to-be-tried prisoners.

The most troubling of the solutions to getting these people out of detention has been the EFCC’s questionable and bizarre program of plea-bargaining. By a collusion of the EFCC and some courts, accused person who have been denied bail and left to spend as much time in jail as if they were convicted and had received the maximum sentence, were placed in the position where they had to choose between the opportunity to defend the charges leveled against them or to plead guilty for offences they did not commit, just for them to be able to get out of prison. And without such a desperate option, an accused person could serve double the length of time prescribed for the offense he denies committing. Even the plea bargain process is too tedious and clumsily executed such that it would never be a meaningful solution to our dangerous prison statistics.

Efficiency in the Administration of Justice: 

Every aspect of government, including the areas relating to law enforcement and administration of justice, could be subject to a test of efficiency. There is cost to the administration of justice. That cost has several dimensions to it. There is a financial dimension, comprising of the actual money spent by the state in maintaining the judges and paying the salaries of court officials, the operating costs of running the court, the cost of feeding the detainees in the prisons.

There is also the hidden cost of miscarriage of justice. A person who has been maliciously prosecuted or unlawfully detained could turn around and sue the state and seek damage award against the state. Even the costs of defending such suit are costs that relate to the administration of justice. Then there is the opportunity cost to all of this. For instance, a young man that has been detailed for 10 months before he is presented to a judge who then admits him to bail, has a cost not only to the man, but also to the society. How do we capture that cost? Where the resources of the state have been misdirected, it leaves huge and hidden costs in other areas. Where it took 14 years to try one criminal suspect for murder, it raises question as to the balance of cost and benefit of such trial. And where at least 7 ex-governors have been facing trial without conviction for over six years, it raises similar questions.

In a place where there has been pervasive criminality, the state probably had to adopt more creative approaches to prosecutions and issues of justice for the wrong done. One thing that could be recommended in such a situation is amnesty, carefully and intelligently utilized. South Africa, for instance, finding that it would be impossible to prosecute all those who committed Apartheid-based crimes, decided to combine confession and reconciliation programs with amnesty and compensation of victims. With a situation where nearly every Nigeria official is guilty of corruption, a creative program that extracts full confession and cooperation from the culpable people plus restitution and compensation to victims might be a more efficient way forward. In one funny occasion, the former head of the EFCC came forward and announced that 32 out of the 36 Governors were all corrupt and would be prosecuted once they left office. Once he made that statement, it became clear that he was either bragging or failing to understand a critical aspect of law enforcement, which is that you need resources to counter the resources of the opponents. 32 Governors combined would be too powerful even against whatever remains of the state. So, there was no way he could attempt what he threatened. And that raises and entirely different question as to what was his true understanding of his role as a law enforcer or crime fighter.

To appreciate in some details the problems and challenges at hand, we ought to look at certain cases in the past 15 years, the practices of the EFCC and the office of the Attorney-General of the Federation.

The EFCC:

This is an agency that took on a domineering role in the criminal justice system of Nigeria, not because it was created specially or empowered in a special way, but rather because of the personality of its founding chairman and the unique marriage of convenience between the personal ambitions of the founding chairman and the quest for political control by the then President. Make no mistake about it; the law that created the EFCC is not any more special than the law that created the ICPC. Also, the EFCC law did not confer on it more powers than are vested by the Constitution and other laws in the Nigerian Police Force. So, each time you think about it, the EFCC does not have greater legal authority than the Nigerian police. Yet, there has been so much activity by the EFCC. Most of it, unfortunately, is as a result of massive abuse of power and arrogation of authority. In fact, still on this topic, even though EFCC has been so active in its public statements about corruption, its proper domain is not really in anti-corruption areas, but rather in economic and financial crimes. Indeed, if the EFCC were charged with combating corruption, there would have been no need to create the ICPC.

Till date, there remain uncertainties in the powers of the EFCC and its relationship with other agencies or organs of government. First, it is not clear the true relationship between the EFCC and the Nigerian police. Most of the top officers of the EFCC are from the police and would probably return to the police force. Also, the EFCC relies on the police for field operations and raids. In that respect, the EFCC could be said to be practically under the police force. Further, the relationship between the EFCC and the Presidency is not clear. We read of situations where, for instance, the Minister of Petroleum invited the EFCC to investigate the oil marketers, as if such invitation was necessary in order for the EFCC, which actually has had a department on oil and gas, to act.

Finally, it is not clear the relationship between the EFCC and the office of the Attorney-General of the Federation. Section 39 of the EFCC Act empowered the Attorney-General of Nigeria to make regulations for the EFCC on all aspects of their operations. This would have been the best opportunity for the Attorney-General of Nigeria to harmonize the operations of the EFCC with the constitution. Surprisingly, the Attorney-General of Nigerian could not take up this responsibility even during the well-publicized rift between Mrs. Farida Waziri, the former Chairman of the EFCC, and the present Attorney-General. Instead, as shown below, the Attorney-General preferred to complain publicly about the abuses committed by the EFCC.

Another inexplicable practice by the EFCC that raises questions about the relationship between the EFCC and the office of the Attorney-General of the Federation is the EFCC’s questionable reliance on private lawyers (in private practice) for the purpose of prosecuting its suspects. The constitution confers on the Attorney-General of the Federation the final authority on the prosecution of cases in the name of the Federal Republic of Nigeria. Also, the office of the Attorney-General (i.e., the Ministry of Justice) is staffed with lawyers who have been trained to prosecuted cases in the name of the federation. These lawyers are experts in this fiend, as far as Nigeria is concerned. They also have the orientation for these types of cases. They are exclusively Government lawyers and do not take off time to engage in private practice while in their employment. They are the best Nigeria has for prosecution of crimes.

However, rather than resort to these lawyers, which would require the EFCC to work closely with the office of the Attorney-General, as is intended by the Constitution and the laws, the EFCC prefers to use private lawyers, who charge 20 times more than would have been necessary to cover the cost and salaries of the Government lawyers. And from the evidence on the ground, the private lawyers have been extremely miserable in terms of the results they have produced. They simply are not good for that task and yet they bill more. The absurdity of this practice leaves one with the conclusion that these private lawyers are merely there to be used to extract kick-backs for the EFCC managers. Otherwise, it would be meaningless to use them instead of the lawyers in the ministry of justice.

Another source of considerable confusion and curiosity is in the relationship between the EFCC and the courts. There ought not to be an issue here. However, the EFCC’s consistent desire to resist the constitutional strictures that ought to limit its powers has constantly placed it in conflict with the courts. The Constitution has a duty to ensure that the Constitutional standards of due process are preserved or maintained. The EFCC find these, unfortunately, as a constraint on its powers and tend to resist it so fiercely.

Over time, the EFCC has been seen to appear to blackmail the courts and accuse the courts of aiding criminals. This is particularly unfortunate. It is clear from several cases that the EFCC had been impatient and unwilling to observe the constitutional standards of due process and transparency or fairness in criminal prosecutions. Saddled with the emerging evidence of failure and the increasingly ineffective propaganda, the EFCC had to find alternative ways to explain its failures. And the courts have been assailed upon by the EFCC for that purpose. At the same time, the EFCC clamored for special courts for its cases, a measure that would have permanently set this country back to the stone age as far as the administration of justice is concerned.

Despite notable resistance by the courts, many judges have been successfully intimidated and even blackmailed to favor the EFCC in cases before them. We see this mostly in magistrate courts and some of the Lagos State and Abuja High Courts.

EFCC Methodology and the Constitution:

(1) The EFCC relies unduly on the tactics of shaming its opponents or suspects under its custody. For this purpose, they resort to media campaign, which serves three purposes. First, it puts the suspect under pressure to cooperate in order to avoid further public humiliation. Second, it gives satisfaction to whomever it is that is sponsoring the EFCC operation in that case. And thirdly, it creates false public impression that EFCC is active and effective in fighting corruption. All these are wrong and unlawful tactics in law enforcement. Rather than achieve any tangible result in the end, it undermines investigation and prosecutions.

(2) The EFCC operatives are not well trained for the job. They detain suspects in violation of the constitutional standards of due process and they seek to coerce detainees into making false confessionary statements. These tend to backfire and ultimately result in failed prosecutions.

(3) The EFCC lawyers oppose bail in circumstances where indeed, it is not in the interest of administration of justice that a suspect be detained while trial is dragged out. It causes needless pain and hardship in violation of the presumption of innocence.

(4) The EFCC uses the plea bargain protocols in abusive manner to extract conviction from people who could not afford lawyers or were denied bail.

(5) The EFCC engages in vindictive prosecution. Suspects who move to enforce their fundamental rights against unlawful detentions get prosecuted with additional charges.

(6) The EFCC officers are corrupt and they routinely demand bribes from suspects and their relatives. This is a problem that cuts across the entire spectrum of the EFCC staff.

(7) Above all, the EFCC flagrantly seeks ways to circumvent the constitution. In one case involving Senator Bode Ola, the Senator while in custody for 10 days already without a remand order, filed an application to enforce his fundamental rights against unlawful detention. The judge fixed December 2, 2011 for a ruling. On December 1, 2011, the EFCC operatives rushed the Senator to a magistrate court in Ikeja to get a remand order to detain him. When that failed, they rushed him to magistrate court in Ebute Metta to get a remand order. All this was to get an order in Lagos that would preempt the judgment the court was going to give on December 2 in Abuja.

The Office of the Attorney-General:

Even a casual glance at Section 174 of the Constitution would show that the Attorney-General has tremendous powers over prosecution of criminal suspects in the country. He has power to override any other prosecutorial authority in the land, including the Attorneys-General of the State Governments. But what have we seen from the office of the Attorney General in recent years? It is saddening to point that the Attorney-General of Nigeria has been an abysmal failure. This point will be better illustrated as follows:

I submit that the position of the Attorney-General is a serious position that carries with it, among other things, the duty to defend and protect the rights of Nigerian citizens, and the duty to enforce the provisions of the Constitution of the Federal Republic of Nigeria, particularly as they related to the Fundamental Rights of Nigerians as enshrined in the Constitution. The office of the Attorney-General should not be simply an opportunity for chop-chop or other frivolities, but rather a solemn obligation to give force, practical meaning and content to our constitutional ideals of liberty, individual freedoms and rule of law.

I further submit that the duty of the Attorney-General to enforce the law and protect the rights of Nigerians is a duty he owes to all Nigerians however big or small, and not only for the Halliburton-type case or for the rich. The laws of this land and the Constitution embody various provisions that demand and authorize the Attorney-General to step in whenever it is to ensure justice in prosecutorial situations.

Some of the legal expressions to the Attorney-Generals duties are contained in the following parts of our laws:

The Constitution of the Federal Republic of Nigeria provides:

“174. (1) The Attorney-General of the Federation shall have power-

(a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court-martial, in respect of any offence created by or under any Act of the National Assembly;

(b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and

(c) to discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.

(2) The powers conferred upon the Attorney-General of the Federation under subsection (1) of this section may be exercised by him in person or through officers of his department.

(3) In exercising his powers under this section, the Attorney-General of the Federation shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.”

Also, the Economic and Financial Crimes Commission (Establishment) Act, 2002, as amended, provides as follows:

“39. The Attorney-General of the Federation may make rules or regulation with respect to the exercise of any of the duties, functions or powers of the Commission under this Act.”

Section 39 of the EFCC Act expanded the mandate of the Attorney-General to avoid or prevent the type of abuses committed by the EFCC Respondents in this case. In addition to the massive intervention powers which the Constitution established for the Attorney-General through the prosecutorial process, the EFCC Act further expanded those powers to rule-making for the EFCC. 

At this point, Subsection (3) of Section 174 of the Constitution comes into focus. That Subsection sets forth the only legitimate purpose for the exercise of the powers granted to the Attorney-General regarding instituting, taking over or discontinuing a criminal prosecution. The Attorney-General must have “regard to the public interest, the interest of justice and the need to prevent abuse of legal process”.

This Attorney-General has previously been known to invoke his powers in cases like Halliburton and those other cases involving the powerful. We urge the Court to note the following instances in the words of this Attorney-General:

Exercising his powers in the case of Kenny Martins, this particular Attorney-General said it thus:

“The second one was the case of Kenny Martins which was grossly misrepresented by members of the Press and certain members of the Human Rights community. When we came in, there was this case involving Kenny Martins in respect of the police equipment funds. There was a ruling of the court to the effect that the Lawyer that was prosecuting Kenny Martins ought not to have been given the fiat that was given to him by the immediate past Attorney-General, because he was the complainant in that case. In the view of the court, the fiat given to Festus Keyamo was oppressive and undesirable, and therefore the Attorney-General was asked to withdraw that fiat.

“What I did was to withdraw the fiat from the lawyer and to brief the current President of the Nigerian Bar Association Mr. Joseph Daudu to take over the Prosecution of that trial…” Pages 103 and 104, Record of Senate Proceedings in respect of the Senate Confirmation Hearing for the Attorney General of Nigeria, Mr. Mohammed Adoke, SAN; (7th National Assembly, First Session; Senate of the Federal Republic of Nigeria; Votes and Proceedings; Thursday, 30th June, 2011).

Exercising his powers in the case of VASWANI Brothers, this Attorney-General said it thus:

“In the case of the VASWANI Brothers which created a lot of confusion in this country, as far back as November/December 2009 there had been a judgement of the court to the effect that the deportation of the VASWANI Brothers was wrongful, illegal and of no effect. When I came into office there were series of cases both at their instance and at the instance of the EFCC. All the cases filed by the EFCC against the VASWANI Brothers were dismissed in Court. In fact, one of the Courts awarded damages in favour of the VASWANI Brothers to the tune of N10 Million for malicious prosecution.

“What I did was merely to ask that the Regulatory Agencies fighting corruption should obey the Court orders. I think that this hallowed Chamber will agree with me that respect for the Rule of Law is one cardinal policies of this government, including the National Assembly” (Page 104 Record of Senate Proceedings supra).

Exercising his powers in the case of the powerful Halliburton and Julius Berger, this Attorney-General said it thus:

“The other case that came up again which they said I withdrew from court has to do with Halliburton’s Case. The Halliburton’s case has been on for a number of years in this country; a lot of our high profile personalities have been diminished by allegations and counter allegations against their names as being involved in one form of bribery scandal in the Halliburton’s case or not. I decided to confront the issue once and for all. I called for all the Reports, went through the Report and saw that there were no sufficient evidence linking any of our past leaders in respect of the said Halliburton’s scandal. Those of them that we could identify involving Halliburton himself (sic), Julius Berger and all of them; we decided to look at the evidence against them, to look at the position of our law and evaluate the weaknesses involved in our law. At the end of the day, in line with the global best practices, we opted to settle with them….

“In my judgment as Attorney-General, I felt that it will be irresponsible to spend so much money running into millions to prosecute Halliburton, Julius Berger and others to get N1 million for the government. It was against this background that I opted to settle and we made them pay substantial amount of money to the Federal Government of Nigeria. So it is not correct that I settle cases against high profile Nigerians.

“The last but not the least has to do with the issue involving the officials of the Nigeria Electricity and Regulatory Commission. In the case of these officials, they were wrongly charged to court. They are Nigerians; they were humiliated simply because some class of people have scores to settle with them. I felt that having sworn to an Oath of Office to protect Nigerians that I owe it a duty to protect these people as well because they are presumed innocent until they were found guilty”. (Page 104, Record of Senate Proceedings supra).

Describing his powers in favour of a Minister of the government that he liked, this Attorney-General said it thus:

“You would found (sic) out that it was in this same country that somebody like Architect Gabriel Adoke was arrested and put to trial; he lost his Ministerial appointment and at the end of the day, the Court found that he was not guilty. But he was so scandalized, so traumatized and his family humiliated that no amount of money can compensate them. I think very sincerely that this class of Nigerians that were humiliated deserve our sympathies and the apology of government and compensation where necessary.

“I am not unmindful that the office of the Attorney General is not a popularity contest and I am prepared to be sanctioned for doing the right thing rather than helping to victimize any Nigerian. This is because as a lawyer, I am told that we are not persecutors, we are prosecutors and if we do not have any good cause to prosecute, we should be sincere with ourselves to refrain from prosecuting just because we want to play to the gallery” (Page 105, Record of Senate Proceedings supra.)

Describing his powers relative to the EFCC, this Attorney-General said it thus:

“The Deputy Senate President asked me whether or not it is desirable to merge the EFCC and the ICP. In the first place, I would say that there is a clear dichotomy between the functions of the EFCC and the ICPC. First and foremost, Sir, the ICPC is supposed to, by the Act creating the ICPC, fight official corruption while by the Act creating the EFCC it is supposed fight economic crime and money laundering. But regrettably, the operators of these two systems of agencies have not properly understood the extent of their powers or their statutory mandates. Therefore, they have been overlapping. When we at the Ministry of Justice tried to guide them, they see it as interference. We do not see it as interference but they see it as interference. So, it would be appropriate to merge these two agencies together tor purposes of effective fight in the war against corruption. (Page106, Record of Senate Proceedings supra).

From the foregoing instances, it is clear that the Attorney-General of Nigeria fully understood his powers under the Constitution and under the EFCC Act, but had placed under a selective mode of existence where it is used only to protect selected people.

The Doctrine of Estoppel as to the Attorney-General: Faced with an obvious selectivity and discrimination in the administration of justice, Senator Bode Ola, in his case against the EFCC and the Attorney-General attempts to hold the Attorney-General bound to his expressed understanding of his duties during his confirmation hearing. He argued that the:

“Constitution requires that the Presidential nominee for that post must be confirmed by the Senate of the Federal Republic of Nigeria before he could be sworn into that office. This constitutional process is not just a mere cosmetic design, but rather a key conditionality for our constitutional democracy and notions of a limited government. It is a key element of our representative governance that the people’s representatives in their parliament must give their confirmation before the Attorney-General would act as the Attorney-General. While the Attorney-General spoke to the Senators, he was deemed to be speaking to the Nigerian people. When he made promises to the Senators, he was deemed to be making promises to the Nigerian people. When he described his duties and responsibilities to the Nigerian Senate, he was deemed to be addressing the Nigerian people. When he said that he would uphold his Oath of Office and defend the rights of the people of Nigeria, whether rich or poor, whether powerful or weak, whether old or young, against oppression and persecution, he made a solemn promise to the Nigerian people. This Attorney-General is estopped from backing away from those promises and pledges that he made. Also, as a matter of public policy, a government official who secured a senatorial confirmation based on promises and assurances he made to the Senators during a public confirmation hearing cannot be allowed to later deny the duties and responsibilities he promised the people. Public service and sense of duties shall be devoid of meaning if government officials are allowed to play such a Russian roulette with the Nigerian people.”

Outrageous Conduct: Part of Senator Ola’s contention was that the behavior of the Attorney-General in these matters was outrageous, amounting to a deliberate abdication of duty, which directly resulted in the violation of his rights or continued violation of his rights.

Where the Courts Stand in the Matter:

The Nigerian courts have been the most resilient organ of the Nigerian Government throughout history. It is at the center of the administration of justice. The courts have a critical role to play in the in the current crisis. The courts are faced with the following shortcomings and challenges:

(1) The Courts are understaffed and underfunded. The Nigerian courts do not have sufficient modern technic and equipment to function effectively. Not only do judges still take long hand notes of proceedings in court, which bugs down proceedings at snail speed, also basic amenities such as microphones and ventilation facilities are mostly lacking. Retrieval of documents from courts remains an uphill task. Similarly, the courts need more efficient, better qualified and better and more remunerated support staff in order for them to discharge their duties effectively and efficiently.

(2) Increasingly, there has been a sharp decline in the quality of lawyers that are appointed as judges, Rather than the finest jurists that the country is capable of, there have been all manner of political interventions that lead to the appointment of connected people rather than qualified and competent people into the bench across the country.

Example of recent cases:

Governor DSP Alamieyeseigha:

This much celebrated victory for the EFCC in this case might actually have been a disgrace and massive abuse of the Nigeria’s legal system. The political interference in this case led to the courts denying Alamieyeseigha bail and keeping him in detention for years. In the end, there was a deal for him to plead guilty. And the guilty plea was nothing but a travesty in itself. At the end of it all, after pleading guilty, the Governor asked to make a statement. He basically told the court that he only pled guilty because he was forced to do so due to the extreme detention conditions he faced. He said his health was endangered, his family suffering and that he was getting older. He made it clear that if it were not for all this hardship and pre-trial punishment meted to him, he would have defended the case rather than plead guilty.

The consequence of the remarks of the Governor while pleading guilty is clear in law. His guilty plea was not voluntary. It was induced. It was not because he believed he was guilty. It ought not to have been entered as a guilty plea. To compound and confirm the problem, the judge said that he would not record his comments. The fact was that taken seriously, the guilty plea was not voluntary and should not have been accepted.

The manner in which he was granted a pardon and issues emanating from that further confirm that all was not well with the process. The story of Alamieyeseigha is not yet over, and will not be until we understand more about the circumstances surrounding the Presidential grant of pardon to him and the aftermath.

Mrs. Cecilia Ibru’s Case:

Another highly celebrated victory for the EFCC, which came again by way of a plea. The interesting thing was that this plea lacked all the elements of plea bargain. It lacked the transparency that ought to serve the aim of law enforcement and justice. Indeed, the secrecy with which the EFCC concluded the case further confirms that the EFCC uses the media only for the purpose of punishing victims and not for the purpose of informing the public. Not only did Mrs. Ibru not serve actual jail term (not that she must), nothing is publicly known about the assets she was to forfeit or those she was to retain. In the end, that case did not advance our laws even an inch forward.

The Case of Bode George:

I don’t want to speak too much about this case. But I can comfortably predict that the Supreme Court of Nigeria will reverse the conviction of Bode George anytime from now. And that opens my questions on that case. How come that the Nigerian Courts allowed him to serve his sentence when it was possible that his conviction could be reversed? The answer lies in the political interference that motivated much of the case at the trial stage.

While the EFCC propaganda induced the euphoria of success in that case, the case has cost Nigeria tremendous headache. It was part of the events and circumstances that led to the worst judicial scandal in Nigerian history involving the standoff between Justice Salami, then President of the Court of Appeals, and the former Chief Justice of Nigeria. Never before in our history did a Justice of the Court of Appeal decline a promotion to become a Justice of the Supreme Court. It was like a colonel in the Army rejecting a promotion to the rank of General, simply because he would lose his present command post.

While the political party in the South West, which played a key role in the travails of George celebrated his emasculation and demise, which were engineered by their closeness to Salami, the PDP was not unaware of what had happened. Hence the intrigue that led to the unceremonious ouster of Salami. It is terrible that all this occurred, but they have explanation and they involve an unfinished drama.

The Cases of the Ex-Governors:

Since of the past 6 years, the EFCC has had had pending criminal indictments against about 7 ex-Governors: (Abia, Enugu, Edo, Taraba, Ogun, Plateau, Kogi, Bayelsa, etc.). Apart from the case of the Governor of Edo, which is still mired in controversies and uncertainties, none of these cases have advanced in any measurable way. Very soon, some of the ex-Governors would be facing trials along with their successors who actually provided the information that assisted in their arrests and indictments.

So much money has been pumped into the prosecution of these cases and yet nothing has been shown for all that expense. The only people that have benefited from these cases are the EFCC officers, who are believed to have been amply enriched through bribes from these ex-Governors, as well as the private lawyers used by the EFCC to prosecute these cases. Nigeria is losing and will continue to lose on all the aspects of the benefits of successful law enforcement.

The Halliburton Case:

In 2008, Albert "Jack" Stanley, a former chief executive of construction firm, KBR Inc., a subsidiary of Halliburton, pleaded guilty to bribing Nigerian officials from 1995 to 2004. Under his plea agreement, Stanley, 65, faced a sentence of several years in jail and payment of $10.8 million in restitution. Also, a French executive was similarly convicted in 2012 for bribing Nigerian officials in the same set of transactions. The conviction of Mr. Stanley was based on a guilty plea, which the American court accepted. That meant that sufficient materials were put forth to conclusively demonstrated that corruption actually took place. Indeed, based on the evidence put forth in the American and French courts, Nigeria would have had no problem in securing convictions in Nigeria against those Nigerians that received those bribes. But as has been cited above, the Attorney General of Nigeria and the Nigerian authorities swept this golden opportunity under the carpet.

More Areas to Consider for Future Discussions:

There are new areas for consideration for those that are interested in pursuing this matter further. Those areas would include:

(1) The international dimensions to Nigeria’s criminal justice system: How does the world take Nigeria when it comes to the country’s ability to fight crimes? Note the very troubling trends whereby Nigeria would rather export its criminal suspects or outsource its prosecutorial authority to foreign countries. Two examples stand out. The Case of Governor James Ibori and that of Henry Okah are on point. These men were convicted in foreign lands for crimes committed either in Nigeria or with some impact on Nigeria, in circumstance where it has been shown that if tried in Nigeria, they would not have been convicted. The question on the minds of all should be: what is it about the Nigerian justice system that would have made convictions unlikely in these cases if tried in Nigeria? If we can answer that question honestly, we shall have identified the problem we have and the sources of the crisis we face.

(2) What is going to remain the status of our young men and women who are locked up without trials in the various prisons in Nigeria? It is clear that our constitution did not intend for them to be locked up in such a manner.

Conclusion:

I thank you for the opportunity to share my thoughts on these matters with you. It is not my goal just to apportion blame, and nothing more. Rather, I have hoped that by opening up on these issues, I would have engaged your thoughts in some proactive fashion and to challenge you to join hands in some pragmatic search for solutions. It is too early to give up hope that Nigeria would get its acts together. Indeed, my familiarity with historical examples of other nations of the world tends to encourage the belief that we would get it right if we apply ourselves seriously to the challenges we face in this area.

END