(PART TWO) WHAT YOU MUST KNOW ABOUT NIGERIA’S CRIMINAL JUSTICE: (GET WISE, STAY FREE FROM ARRESTS AND UNLAWFUL DETENTIONS IN NIGERIA) By Emeka Ugwuonye, Esquire

PART TWO

UNDERSTANDING THE BASIC STRUCTURE OF THE POWER OF THE STATE TO ARREST, DETAIN AND TRIAL A PERSON:

You must first understand the structure of the power of the state to arrest, detain and trial a person accused of committing a crime and possibly imprison him upon conviction.

The best way to understand that power system is to know that the government, which is the principal machinery for expression of the sovereign state, is divided into three arms: (a) the legislature, (b) the executive and (c) the judiciary. This is basic information we learned in elementary school, but it has a practical application in the way these critical functions of the state are performed in real terms.

Even though the legislature made the laws upon which you are being arrested, it is actually the Executive and the Judiciary that play a direct role in your arrest, detention and trial and punishment upon conviction. These two arms of government, through their respective agencies, manage and superintend the system of administration of justice, otherwise known as the criminal justice system of a country.

The challenge is whether a criminal justice system is governed by rule of law or by personal discretions of those who administer the system. The answer is that both discretions and rules apply. However, the ideal is to have less of discretions and more of rules. In more advanced countries, there is a higher level of rule of law and less of discretions. Rule of law is more conducive with justice than the executive discretions. Due process is better observed when there is rule of law than when there is discretion.

There is more discretion with decisions made by the Executive than with decisions made by the courts, even though you would often hear the term judicial discretion.

The constitution, together with the rules and the laws, has actually assigned different responsibilities to the Executive and the Judiciary in the administration of justice. The problem is that most of the time in Nigeria, the Executive does not understand the limit to its role or simply does not want to be limited to the role assigned to it by the constitution. We see these problems when the police and the EFCC, whose work is to arrest and arraign a suspect before the judge for a bail hearing, decide to detain the suspect under the pretext of continuing investigation, while trying to grant him administrative instead of a bail by the court. In some glaring cases, the EFCC and the police try to negotiate a settlement between the suspect and the complainants, rather than allow the court to hear the case on the merit. In such situation, the EFCC or the police are assuming the functions of the court.

Apart from the substantive roles assigned to each organ, the Constitution also prescribed or implied certain time frame within which the Executive should perform its role and hand over to the judiciary. In other words, the Constitution and the laws set out the manner in which various events in the administration of justice are to be sequenced and relative to themselves. We see the sequencing problem when, for instance, the police or EFCC would arrest a person before any investigation is done. The law actually requires investigation to be done before arrest is to occur in most cases. But the Nigerian police and the EFCC alter this order of events set by the law and move backward rather than forward.

Just for clarity sake, you must bear in mind that the Executive and the Judiciary depend on each other in the administration of justice. It is a system of interdependency that continues throughout the operation of the system. To illustrate this: even where the suspect has been charged to court and has been admitted to bail by the court, the court could still rely on the Executive to perform its tasks. For instance, if a person admitted to bail fails to show up for trial on the date set for trial, the court would issue a bench warrant for his arrest, which would direct the Executive (the police) to arrest the suspect and bring him to court. If the suspect is arrested, it is largely up to the discretion of the police as to where to detain him and when to take him to court. Also, even after the court has found the suspect guilty, the court would depend on the Executive (the prison authority) to punish the suspect (now the convicted person). So, bear in the back of your mind that the entire system of criminal justice requires the mutual interdependency of the Executive and the Judiciary.

The genius of justice and due process is to make sure that each arm of government is restricted to its roles and that such roles are performed in the sequence and timeframe prescribed or implied by the constitution and the laws of the land. Remember that since there is greater use of discretion in the Executive branch, a person who has been wrongly accused or who has been abusively arrested by the Executive would want his case to go the Judiciary where it would be treated in accordance with rules, and less discretion. The opposite is the case if the accused is really a bad person who has a lot of money and connection. Such a person would want his case to linger at the Executive level where there is a lot of discretion and he could easily buy the decisions of the officials in the Executive arm of government. But for the purpose of this piece, let us assume that everybody arrested wants to observe his due process rights and speedy access to the courts.

POINT OF ENTRY INTO THE JUSTICE SYSTEM: A person’s first encounter with the criminal justice system is usually when the police or the EFCC arrests him or whatever agency in the Executive is doing the arresting. But sometimes, a person may encounter the system before he gets arrested or without being arrested eventually. For instance, when the police or the EFCC invites you for an interview at their offices. You are not yet a suspect, but rather a person of interest to law enforcement.

There are other people who encounter the system without being suspects. Such people are witnesses to a criminal case and people who stood sureties for suspects on bail. These people are not suspects, but they are closely involved in a criminal case that their roles could change the outcome for the suspect. We shall leave them out of this discussion. But do not forget them, as they are very important in the process. So, let us go to that point where you encounter the criminal justice system.

YOU OR YOUR RELATIVES ARE ABOUT TO BE ARRESTED: It doesn’t really make a difference how it happened exactly. But once you are not allowed to leave the police presence and carry on with your business, you are under arrest. There are various details in the rules as to what constitutes arrest, and there is a difference between lawful arrest and unlawful arrest. But we shall leave most of those details at this pint. Let us also exclude the brief period of detention by the roadside when the policemen pull you over. A lot of the time, you are invited to the EFCC or police station because they told you they need information from you about somebody else or about an event. However, at the end of your visit to the station, you may be told that you cannot leave. If that happens, then you are under arrest. This process could be manipulated or abused where the police officers try to detain you, not because they believe you are suspect, but rather simply to force your family members to pay them money.

Once it enters into the mind of the Nigerian officer or the EFCC officer to arrest and detain you, he would immediately begin to formulate some theories and put things in paper to justify your detention. Indeed, they could falsely accuse you of a crime to justify your detention. And in most cases, he begins to set up strategies to extort money from your family members or to please the person who complained against you. They could ask you to make a written statement. They could tell you that you only need to make a statement in order for you to go home. But that is only a trick most of the time.

You should probably not make any such statement, though it is also possible that an honest police officer would be impressed that you promptly answered his questions without objection. In general, it is safer not to answer any question. And if forced to answer questions, you must let your lawyer know you were forced, and your lawyer must protest against the use of force to obtain information at the earliest opportunity; and your lawyer must let the court know in a proper and timely manner.

This is probably something many people don’t understand. They are so eager to go home, so afraid of being detained, so scared of what would happen to them; that they mistakenly assume that it is safe to make a statement at the police station or EFCC office. DON’T MAKE ANY STATEMENT. TELL THEM YOU NEED TO SPEAK WITH YOUR LAWYER FIRST. If they threaten not to release you unless you made a statement, don’t buy that. It is a trick to set you up to justify your detention. Even if they release you after you have made a statement, your statement could still justify your being re-arrested and detained later, and because you made such statements before you spoke to your lawyer, you boxed yourself in somehow.

Some people believe that they are well educated and that they could write good English and that they are innocent and have nothing to fear, therefore they could give a written statement on the spot. That is wrong. The fact is that the more innocent you are, the less prepared you are to make any statement because you have no idea what happened. You have no idea how the various people involved are connected. It may not be the person you thought was under suspicion that really is. Also, that statement you are about to make may be your real first step to plunging yourself into what you don’t know. SO PLEASE REFUSE TO MAKE ANY SUCH STATEMENT UNTIL YOU HAVE SPOKEN TO A LAWYER. If the officer chides you with the blackmailing remark: “Oh, if you are innocent, why do you need a lawyer?” don’t fall for that.

Sometimes, they tell you that you have not been arrested and that you are only a witness. Be careful here. That is a slippery slope. A person who has been arrested has more active due process rights than a person who has not been arrested. It is often the arrest that triggers your due process rights. If you look at Section 35 (2) and (3), of the Constitution of Nigeria, 1999, you would see that the due process rights stated there are meant for the arrested or detained person, and until you are arrested, you may not assert those rights. However, you should still refuse to make any statements even as a witness. Let them arrest you and then you could assert those rights.

Section 35 (2) and (3) provide as follows:

“(2) Any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice.

“(3) Any person who is arrested or detained shall be informed in writing within twenty-four hours (and in a language that he understands) of the facts and grounds for his arrest or detention.”

Note that the above provisions of the Constitution speak of any person “who is arrested or detained” and not about any person who is about to be arrested or to be detained. So knowing whether you have been arrested or detained is critical, and a lot of the times, Nigerian law enforcement agents want to keep in guessing your status.

It is probably better for you to be arrested and you assert your rights than for you to think that you have not been arrested and you give up the above due process rights. In fact, Subsections (2) and (3) of the above provision are Nigeria’s equivalent of the American Miranda rights. So you are better off refusing to make any statement on the spot. They ought not to arrest you just for refusing to make a statement. And if they arrest you, that means they would have arrested you anyway, but then armed with self-implicating statement against yourself.”

(TO BE CONTINUED)

WHAT YOU MUST KNOW ABOUT NIGERIA’S CRIMINAL JUSTICE: (GET WISE, STAY FREE OF ARRESTS AND DETENTIONS IN NIGERIA) By Emeka Ugwuonye, Esquire

PART ONE:

INTRODUCTION: The method and procedure I advanced in this thesis explain two contradictory phenomena. First: when the EFCC or the Nigerian police arrests ex-Governors or highly placed figures, none of them stays more than five days in EFCC cell before being released. Second: when they arrest ordinary or lowly placed people, they could be locked up for up to six months in detention.

The difference is that the ex-Governors could afford expensive lawyers who would normally follow the procedure I recommend here, whereas the average people, if they are able to hire lawyers, hire those lawyers that for one reason or the other fail to follow these steps.

The Governors and the other powerful people know in advance that they are going to be arrested. They see it coming. They prepare for it. They have their lawyers ready. Those lawyers are thus able to file papers immediately their privileged clients get arrested and, sometimes, even before they are arrested. Such timely or preemptive lawyering forces the EFCC or the police to follow the constitution and arraign the rich and influential clients within 24 or 48 hours after they were arrested. And the court takes over and grants bail.

Once you are able to move your case quickly from the Executive to the Judicial arm of the state, you eliminate much of the political and non-legal motivations behind your arrest and detention. The judicial outcome is predictable because it follows legal principles and procedures that are largely non-personal, whereas the outcome of executive actions or decisions is based more on a much unpredictable and highly personalized discretionary process. Thus, moving your case timely from the Executive to the Judiciary is the key to justice. And the greatest challenge in the Nigeria’s criminal justice system is being able to make that transition fast enough.

Even in cases like Speaker Dimeji Bankole’s case, where the Presidency was perceived to be the driving force, and Ifeanyi Ubah’s case, where a well-coordinated and combined corporate interests like Access Bank Plc. and Coscharis Group with significant elements of political power to back them up, drove the entire process; the suspects were able to come out of detention within a relatively short time period. What made the difference was that the suspects were rich and could afford to hire lawyers who followed the procedural steps set out in this paper.

Poor people cannot afford the same quality of legal representation. And they languish in detention needlessly. But it is not really a matter of how rich or how poor you are. My recommendations here are meant to level the playing field and even a poor person with a lawyer of average competence can avoid being locked up for a long time in detention.

Thus, this is to share with you something you need to know in order to help yourself or your friends and relatives if you were to get arrested by the police, the EFCC or the other agencies in Nigeria. And please, don’t be so naïve as to think that this does not concern you. It does. Unlike most other countries in the world, if you live in Nigeria or you are in Nigeria, you don’t really have to do something wrong in order to be arrested. Indeed, the people who do bad things in Nigeria are less likely to be arrested because the real bad people know and plan in advance how to avoid arrests. It is probably the innocent and unsuspecting people like you that get arrested in Nigeria.

WHY IS IT IMPORTANT TO TALK ABOUT THIS TOPIC?

One thing we all have in common in Nigeria, apart from death, is that any of us can be arrested, detained and tried by the State. This is an equal opportunity misfortune. That is to say; it does not matter whether you are rich or poor, educated or uneducated, connected or not connected. You can get arrested anytime in Nigeria. And when arrested, you will face the ugly side of the Nigerian criminal justice. Awolowo was arrested. Gani Fawehinmi was arrested many times. General Oladipo Diya was arrested and condemned to die. General Obasanjo was arrested and condemned to die. General Yar’adua was arrested and he died in prison. If these powerful men could get arrested, then you too could.

Some people make the mistake of thinking that they are so peaceful, so laid-back, too quiet, always at home, always minding their business, don’t drink alcohol, don’t smoke cigarette, don’t womanize; and that they would never do anything to get arrested. That’s not true. You will be deluding yourself to think that way. For instance, the Blackberry phone you are using, which you bought second-hand, has been reported stolen and the police are tracking that phone without you knowing it. Your employer has just been arrested by the EFCC and they are looking for his secretary to arrest her too, just to pressure your employer. And you happen to be that secretary. In Nigeria, the police would arrest you if they are looking for your husband, your son, your brother, your sister, your employer, your co-worker, your relatives, and cannot find them. Such an illegal detention is meant to force the person the police are looking for to turn himself in.

They can arrest a church functionary if they can’t find the Pastor. You only have to be unlucky and in a wrong place at a wrong time to be arrested. You could be set up and be arrested just because somebody else is interested in your boyfriend or in your girlfriend. If you don’t pay rent to your landlord, your landlord could report you to the police to be an armed-robber. If you don’t bribe the police and other government officials, you could get arrested on a trumped up charge. If you live in Washington, for instance, and you quarrel with the wife of the Nigerian Ambassador in Washington, you could get arrested when you visit Nigeria or your relatives could get arrested in Nigeria for that.

Even if you are so lucky never to get arrested in Nigeria, your relative may get arrested. Once arrested, you are faced with the criminal justice system. From my experience, it may not be the arrested person that worries the most when there has been an arrest. It is the relatives. It is the girlfriend. It is the wife. It is the siblings and parents. It is the friends that have to run around in confusion over what to do.

Most of the time that I got called upon to intervene as a lawyer after an arrest has occurred, it was not the arrested person that contacted me. Rather, it is the family members that do the worrying and the running around. So, you need to read what I have to say here about the criminal justice, as it may help you in the future.

If you are a lawyer, particularly the young lawyers, please pay attention to what I am about to share with you here. It would help your clients and it would make your work easy. If you are not a lawyer, that’s even better. Even if you plan to hire a lawyer, it helps if you know what I am about to share with you. Then you can know what to tell your lawyer and what to expect of him when you hire him or her.

(TO BE CONTINUED):

GOVERNOR SULLIVAN CHIME – THE FACTS, THE FICTION, AND THE STORM.

If you are a Governor of a State in Nigeria, everything about you could assume dimensions that are uncommon. And if you are Governor Chime, every rain could become a storm. This assessment is clear and present in the controversy involving the Governor of Enugu State and his wife.

It started by way of a publication by a tabloid/gossip online news website, which painted a picture of a governor’s wife in distress. According to the publication, Mrs. Chime, the First Lady of Enugu State, was in a lockdown, imprisoned in her own home by no other person than her husband, with the support of her family members, including her parents and siblings.

According to the petition allegedly written by Mrs. Chime, she has four key grievances. First, she could leave the Governor’s residence because the Governor had threatened to disown the son she had with the Governor if she left. So, presumably she stayed on in the residence against her will just in order to preserve the Governor’s paternity over their son. Second, she has not had conjugal union with her husband since 2010. Third, her husband, the Governor, does not give her pocket money, and all the money she gets is certain payment made to her as allowance to the First Lady by the State Government. Presumably, the Governor did not stop such allowance going to her. Fourth, she is not quite satisfied with her doctors because they prescribe medicine that she feels worsens her situation. Presumably, Mrs. Chime’s petition admitted that there was need for her to be attended to by physicians, only that she is not satisfied with the treatment she received from them.

On the basis of these grievances, Mrs. Chime’s alleged petition cried out to the human right community, urging it to come to her rescue. Once the alleged petition made it to the public, the rumors began to make the round that the Governor’s wife has some mental health problem. Indeed, her petition admitted that she was suffering from acute depression and she felt suicidal. The counter stories portrayed the Governor’s wife as sick and lacking in credibility. Indeed, there seems to be a consensus that she is not well, and that the reason she is presumably kept within the walls of the residence was as a result of her condition.

As would be expected, given the personalities involved, this matter has generated significant public reaction. First, it has assumed the tone of discussion of the deeply embedded gender inequality in the Nigerian society. There is a view that the Governor’s wife ought to have been sent overseas for the treatment of whatever illness she suffer. That view is particularly serious in Enugu State given that the Governor had extensive treatment overseas last year. So, why not such treatment for the wife, many are wont to ask?

There have been some further developments in this matter. First, Femi Falana, a senior lawyer in Nigeria, has announced that he would be representing Mrs. Chime as her counsel. Second, Nigeria’s usually ineffective Human Rights Commission has sent a letter to the Governor demanding to have access to his wife. Equally of importance is the fact that the Governor, flanked by Mrs. Chime and her brothers and other family members gave a press conference denying the allegations that Mrs. Chime has been imprisoned in her house. In the said press conference, Mrs. Chime made a statement, denying the petition alleged to have been written by her and openly stated that she never hired Mr. Falana to be her lawyer and that she had no intentions to hire him.

With the Foregoing position of facts and scenarios, this controversy is very much set for analysis.

As a basic point of consideration, no one can protect Mrs. Chime from her own family, given the circumstances. Even if the Governor were to let her out (if one insists she is under lock and key), she would have to look up to her family to care for her. And that is the same family that is staunchly with the Governor.

Nigeria does not have a program to care for you if all your family members reject you. Indeed, no doctor and no court would allow anybody else to make decisions for Mrs. Chime apart from her husband or relatives. And if she is so sick, she cannot be allowed to make any important decisions for herself. She would be lacking the mental capacity to retain the services of a lawyer. The only lawyer she may have would be one appointed by Chime or her family.

Can Falana represent Mrs. Chime even without being engaged by either Mrs. Chime or her legal representatives? The answer is definitely no, except in the rare event that a court appoints a guardian ad litem for her. That possibility is so unlikely it could safely be ruled out.

It is important that Nigeria’s new rules for the enforcement of constitutional rights has made away with the requirement of locus standi (an archaic rule that denies access to litigants unless they could show that that controversy involves them in some special capacity). It implies that a person seeking to enforce a fundamental right does not have to be a direct victim of the right violation.

But the significance of the changes in the rules should not be misunderstood. The fundamental right of a person to a counsel of his/her choice has not been replaced by that rule. The changes to the rule relates to the parties to litigation and their right to sue, not to the right of a lawyer to impose himself on an unwilling client. So, we must not assume that Mr. Falana could force himself on Mrs. Chime based on the new enforcement rules.

The right to a lawyer of one’s choice is so entrenched in the Constitution that it cannot be taken away by implication of a procedural rule established to enforce that right. And if we observe that rule here, the question is who excises the choice or decision-making power for Mrs. Chime? It cannot be any lawyer that wants to do so. It cannot be any government commission that wants to do so. It is she or her family.

If there is doubt as to whether she could make such decision herself or through her legal representatives, then mental capacity becomes a foundational issue to be addressed. Who determines whether she has the capacity to make that decision herself? Again it is not simply any lawyer that wants to do so or any commission that wants to do so. It is her next of kin and family members, otherwise her legal representatives. So, as long as her husband and her family are united on that, it is extremely difficult for anyone to intervene legally.

The position of the human right commission demanding access to Mrs. Chime is a fundamental mistake in law. The commission cannot have such access without first addressing the question of legal capacity. Indeed, if Mrs. Chime is suffering from mental sickness, the human right commission may not be qualified to meet her. The only competent people to meet her outside her family members are medical doctors. In such case whatever words or statements made by Mrs. Chime could only be intelligible to a competent medical officers. The idea that she could sit down with the commission or Falana to discuss anything is so inconsistent with logic and common sense.

From a human point of view, if your wife or daughter is suffering from mental sickness, the right thing to do is not to put her before a panel of journalists or lawyers and allow them to chat with her so they would determine if she is well or not. They lack the capacity to make such determination. It is right and proper from the family members of a mentally sick patient to avoid her coming in contact with strangers except for the course of such patient’s treatment.

In light of the foregoing overall, one must view the position of the Governor far more favorably than has been the case. First, the fact that the Governor and the lady's family members are united in this takes care of a lot of things because even if the woman is left on her own, it is her family members and her doctors that would determine the best place for her to be. And they think it is the Governor's residence.

Second, once Mrs. Chime is attended to by doctors, those doctors would make the best medical decision about her. They would determine what course of treatment to give her. So, all the talk of her getting medical treatment overseas is a decision only her medical doctors should help make, and not for the public to make it.

Third, it is important to note that nobody has yet complained that violence is used against Mrs. Chime.

Fourth, there is no motive on the part o the Governor to lock his wife up out of malice towards her. Indeed, it seems easier for governor to divorce his wife immediately he saw she was sick. So, it would seem that the Governor is being a good husband by sticking to his wife in health and in sickness as required by his marital vow.

The situation could change if there is an indication that a crime is being committed against Mrs. Chime in that residence. But in that case, the police would come in. If the Nigerian police believe that crime is being committed either by Mrs. Chime or against her, the police will have right to go to court obtain a warrant and gain access to the Governor's bedroom if necessary.

While we consider all these options, let us not lose sight of the state of Nigerian law, which will decide a lot of these things. As the law is today, Mrs. Chime may actually depend on her family members to enforce her rights. There is very little the Government could do to help protect her from her husband and family working together.

By the way, from all indications, I should be quick to recognize the rights o this woman, and to protect her if these rights are violated or being violated. However, I am sensitive to the various shades of argument that seem to be proceeding outside the margins of law.

On my recommendation to the Governor, if there is a medical concern, there should first be an independent medical evaluation to determine her capacity for anything. The human right commission members are not doctors. They would not even be able to make any determination regarding her capacity. There is no way the Governor would allow non-medical personnel access to his wife if she were mentally sick. If my child or wife were mentally sick, I would not allow a non-medical personnel to come and interview her.

NIGERIA’S DECISION MOMENT IS NOW

To be, or not to be! Fifty-three years after independence, it will be an understatement to describe Nigeria as a country at a crossroad. The country is better described as one that is battling with the existentialist challenge of whether it is to remain one united country, and if so, what manner of country.

From whatever angle you start the Nigerian story, it would reveal monumental and mounting failures: failures of leadership, failures of imagination, and failure of citizenship responsibility. You have seen these failures in form of the colossal corruption and mindless pillaging and plundering of the commonwealth. You have seen it in form of unprecedented degradation and total abandonment of the public infrastructure. You have seen it in the continued failure of the country to raise quality and competent people to lead it. You have seen it in the mediocrity there is everywhere across the spectrum of the present Nigerian leadership elite.

You have also seen it in the blinding poverty across the land, crimes and insecurity, and even an escalation of civil strife, militancy and insurgency that currently grip this country and tears ferociously at every joint. Of the most scandalous and pathetic of all the neglect and failure of the Nigerian leadership is the fact that since nearly four months today, the most promising of our population, the Nigerian university students, have been involuntarily forced out of the university campuses simply because the Government officials chose to divert funds meant for the running of the nation’s universities, into their private pockets. 

In the standoff between the Government and the university staff union, millions of Nigerian youth suffer untold hardship. The immediate and extended implications of this are devastating. To keep millions out of the universities for four months without end is tantamount to waging war against Nigeria. Its impact will reverberate for decades to come during which Nigeria would be placed at a competitive disadvantage among other nations by a wide margin. To cut an entire generation of our youths off from normal pace of human development and progress is an act of war against the country and its people. The fact that this is happening in a democracy is in itself a profound contradiction. Note that since the latest wars began in Iraq and Afghanistan, never have the university students of those countries stayed out of school for four months at a stretch. If countries at war could do better than Nigeria in this one area, what else do we need to show that Nigeria is a failure?

The gravity of the above crisis remains even without mentioning the dangerous conditions in our hospitals, the primitive levels of electricity supply in Nigeria, the violence, the kidnappings and killings of the innocent all over the country, etc. Every person with any modicum of conscience and courage must understand that time has come to face the leaders of Nigeria and tell them some home truth. We must say to the President of Nigeria, the legislative and judicial arm of Government, the Army, the Police, and all the political parties in the land that they failed in the most shameful manner possible. 

We must also admit that the Nigerian citizenry has its share in these failures. It is rare to find any other country where the citizens have been as docile as the Nigerians. We have a duty to challenge our government and demand that we be governed in accordance with the standards of human dignity and the constitution. We cannot fold our arms and watch as leaders of the country compromise their sacred oaths of office – among them, the oath to protect the interest of Nigerians. In the past months and weeks, members of the Nigerian leadership have been consumed by their anticipatory maneuvers calculated to give each politician an edge in the 2015 elections. In all that, no attention has been paid to the needs of the average Nigerian. Poverty widens. Apathy and indifference become the order of the day. Rancor and resentment and ethnic hatred equally abound, all the while our leaders are busy seeking only to preserve themselves in privileged positions, from where they have never helped the people.

As at this moment, the situation with Boko Haram insurgency seems to have gotten worse in the past weeks. At the same time a gladiator of the Niger Delta militancy has been issuing all manner of threats of dire consequences if the President did not win a full second term in office in 2015. These drums of war had only grown louder with each passing day. In the mean time, the average Nigerians suffer.

In view of this, I am compelled to state that the independence of Nigeria as a sovereign state would only amount to something when Nigerians are ready and willing to demand for their rights. As a lawyer, particularly as an international human right lawyer, I must challenge the President of Nigeria and other leaders in this country to live up to their oath of office and stop compromising the future of our country ever so readily.

All the social conditions and the ominous characteristics Nigeria had in the 1960s are present today in Nigeria. The only difference is that those who ruled Nigerian at independence were many times better trained and better informed than those in power today. Yet, those leaders were not able to prevent the cataclysmic events that tormented this country in the second half of 1960s. The implications of this reality are troubling. We are faced with crisis in all aspects of Nigerian life. It is a pity that our leaders have been insensitive to this dire situation. Today, instead of celebrating a country that ought to have come of age at 53, we are lamenting the senseless and preventable killings of innocent Nigerians, the mind burgling looting of our national resources, the disastrous failures of leadership and permanent tensions and threats to the survival of the country as one united country. Time has come for the citizens to rise to demand for what is due to them. If the country remains an infant, let the people at least grow up and act like adults.

Emeka Ugwuonye, Esquire 

President, ECULAW GROUP

Founder, The Due Process Advocates

THE MAKING OF THE WAR OF THE TRIBES: (A State Government Program versus the Constitution of Nigeria).

THE MAKING OF THE WAR OF THE TRIBES:

(A State Government Program versus the Constitution of Nigeria).

By Emeka Ugwuonye, Esquire August 9, 2011

 

Whether the Governor of Lagos State realized it all along or not, his government’s bizarre policy and program of deporting Nigerians from Lagos to other states have re-injured the unhealed wounds of ethnicity in Nigeria. There is no doubt that the political leadership of Lagos State has realized the enormity of its mistake on this. Despite the exterior calmness and even bravado exhibited by the Governor, he seems to understand that he has placed himself on a questionable side of history, though he still has the opportunity to reinvent himself and reset his political vision for the country.

As a lawyer, the Governor must have understood that these deportations are probably in violation of the constitution of Nigeria. You have no business forcibly removing from Lagos State somebody who has the constitutional right to return with the next bus. And if he doesn't return, it would not be for lack of legal right to return, but rather because of the physical and economic limitations the act of the State has imposed on him. Any action of the Government that so drastically guts the fundamental rights of the citizen must require a compelling necessity to survive any judicial review.

What was this compelling necessity to justify the actions of Lagos? None, really. It all boils down to the incompetence and lack of imagination on the part of the administration. Every government, be it county or municipal administration, should have a program on how to alleviate poverty and reduce destitution among the most vulnerable part of the population. Such program must involve a genuine cost and some wealth redistribution formula, however minimal. Never before has a government with any claims to responsibility resorted to removal as its choice program for poverty alleviation and prevention of destitution. It is a mark of a total lack of vision on the part of Lagos State Government.

To highlight the complete inability of Lagos to justify these removals, it is important to consider the explanations or justifications that Lagos has advanced so far. First, Lagos claimed that it notified Anambra State Government of the deportations. But the evidence shown by Lagos suggests nothing other than a confusing and irrational government program. There was a letter that spoke of 14 detainees/deportees. Yet, there was no further explanation for the deportation of 72 people to Anambra State. There was no indication that Anambra State Government concluded the confirmation process intended in the correspondence from Lagos. No indication of the date of deportations. No indication of the manner of the deportations. No indication of who would take over once the deportees were in Anambra State. No arrangement whatsoever on what would happen to the deportees beyond the River Niger Bridge. It showed a poorly considered and thoroughly dehumanizing protocol for the handling of the Nigerian poor. 

The second attempt by Lagos to justify these deportations was some equally confusing and distorted account of correspondence from Akwa Ibom State Government, concerning two metal patients rescued and treated initially in Akwa Ibom and who indicated that they had families in Lagos and who could not be left alone without care. In any event, Akwa Ibom State has openly refuted Lagos’ account of what transpired between the two states and actually went further to distance itself from the Lagos deportation program.

A third justification by Lagos was to explain away these deportations by claiming they were a form of family unification program meant to unite the deportees with their “families”. But looking at what happened to the 72 people deported to Onitsha, it was clear that there was no attempt at unifying them with their families. The handling of the Onitsha deportees was nothing other than a clear endangerment of the health and lives of the deportees. And quite troublingly, Lagos State Government defined “family” to mean nothing more than the “presumed state of origin” of a deportee.

The fourth justification by Lagos was to resort to some vague but virulent reference to the ‘legendary generosity” of Lagos to “foreigners” who live in Lagos State. The Government agents spoke of the hospitality of the Lagos people. The shift from a reckless government action to the collective will and desire of the millions of people who might, if provoked enough, attempt to trace their ancestral origins to Lagos State territories could only be alarming. It looked like a complete last resort for a government that has lost the argument.

The final justification to date was the continued deportation, this time to Osun State, to avoid any ethnic underpinnings of the deportations to Onitsha coming to the surface. The fact that the next set of deportation after the one to Onitsha had to head to Osun State was predictably disturbing and coming at a time that the government continued its argument on the generosity of Lagos people to “foreigners”.

The greatest problem emanating from all this is definitely not the pain and suffering endured by the deportees, as bad as they may be, but rather it is the fact that these events have unleashed among Nigerians the ugly monster of ethnic disunity and the hostile language of breaking up the country. In a sophisticated world, people would have resisted the temptation to slip along ethnic lines on this matter. They should have understood the wisdom of not playing the ethnic card, which an apparently misguided government has dealt them. But the people are not sophisticated or the leaders of these divisions have a different agenda altogether. Politicians and such other provocateurs have used these events as a justification to pounce on the highly inflammable sensibilities of dissatisfied Nigerians.

The first to fire a shot in response was the Governor of Anambra State, who wrote to the President of Nigeria on the matter without first a phone call to his colleague in Lagos and without any explanation why his Government did not take the matter seriously since April of 2013 when it first became aware of the program. The second person to fire a shot was former Governor Orji Uzor Kalu, who threatened legal action and escalated the ethnic argument to some obvious fanfare. Then came the most rabid of them all in the person of Chief Femi Fani-Kayode who has used these incidents as justification to unleash a deep-seated hatred and bigotry toward the Igbo people, hoping in the process to give himself some new relevance as the warrior of his tribe. 

Nigerians must deny the politicians and the provocateurs the opportunity to exploit this problem and plunge the country back into the hostilities of the 60s. The national unity that has been preached, perhaps in words only, by Nigeria is much damaged by the things said or written on both sides of the divide. The fact is that Lagos is about the largest city in Nigeria. It is also among the largest cities in the world per population. It was once the political capital of Nigeria, and presently the commercial capital of the country. Naturally, it would become the most diversified city in Nigeria where Nigerians from all parts of the country would settle and make their homes. It is in that context that Lagos could be rightly referred to a no-man’s land. 

The duty is on all sides to pull back from the precipice and reconsider their arguments. It is counter-productive to use this as a justification for waging an ethnic warfare. The whole matter could be addressed squarely from human rights point of view without reaching the ethnicity angle. Let this matter remain the policy and program of a state government versus the Constitution of Nigeria. Let no one make this a Yoruba versus Igbo affair. That would be most unfortunate and serve the interest of only those who want to divide the country for personal gains.

THE SENATE JOINT COMMITTEE’S REPORT ON EZU RIVER BODIES IS HIGHLY FLAWED AND CONSTITUTES AN ACT OF COVER-UP AND OBSTRUCTION OF JUSTICE.

The report filed recently by the Senate Joint Committee on Police Affairs and National Security and Intelligence, which charged itself with the task of investigating the discovery of the “strange dead bodies” on the Ezu River is a hopeless failure and an act of cover up. Rather than shedding light on the mystery surrounding one of the most heinous crimes in this country, the Report places the Nigerian people further in the dark over what really happened. Also, this is a disappointment for the entire people of the Eastern Nigerian, particularly the people of Anambra and Enugu States, who, more than other Nigerians, would like to know what truly happened.

The Committee could be faulted on many grounds, including, but not limited to, the following:

(1) It was not clear what the mandate of the Committee was. It seemed that this was a committee of self-appointed members of the legislature propelled by legislators from Anambra State constituencies who were either embarrassed that this sort of incident occurred in their state or who were out there for some political opportunism. With such confused and questionable motivation, it may not be any surprise that the Committee could not rise to expectations.

(2) The Committee did not communicate to the public any clear terms of reference. It was not clear what it was supposed to actually do or what investigation it was supposed to conduct. In view of the several issues at stake, it would have been better for an effective and well-purposed committee to set out in clear terms what it wanted to do. Instead, it merely engaged in a half-baked jamboree of photo-up opportunities on the riverbank, and nothing more.

(3) The limited hearing that was held was poorly done. The Committee did not publicize its hearing in advance with any plans to solicit the general public for information. The claims of MASSOB were not adequately investigated. The families of the named MASSOB victims were not exhaustively interviewed. The Committee could not guarantee witnesses protection against persecution for their testimonies. The Committee could not provide logistical support for witnesses willing to travel to Abuja to testify. The Committee did not speak with the villagers who first discovered the bodies. Instead, it relied on second-hand reports and hearsay accounts of those who claimed to have heard from those who first saw the bodies.

(4) The Committee did not mobilize inter-governmental agency support for its investigation. There was nearly a total absence of expert involvement in the investigations. The individual lawmakers involved in the committee handled the investigation directly themselves. Yet, nearly none of them is a trained forensic investigator or lawyer experienced in matters of this nature. Rather than having the investigation involve the work of experts with technical know-how in the matter, the legislators proceeded like a motley crowd of traders. There was no involvement of the Ministry of Justice, as ought to have been. Nobody was placed even on administrative leave while the investigation was on. The people under suspicion remained in control of key aspects of the facts under investigation.

With the above fundamental limitations, it would be unreasonable for anybody to expect anything seriously worthwhile to come from this Committee. Yet, the people had to take the Committee serious because it came from highly placed lawmakers who ought to appreciate the gravity of these events and the need for meaningful answers and explanation of what happened.

The Report itself can be faulted on the following, among many more, grounds:

(1) The Report could not clearly establish the number of victims. It says there are 19 victims. Yet, it has no basis for this except the words of the villagers, even though the Committee never spoke with the actual villagers that saw the bodies. Indeed, the investigation did not advance the course of truth on this point beyond what the villagers knew immediately they saw bodies in their water. It is an unfortunate reversal of logic and a terrible disappointment that the Committee Report would muddy up the facts as to the number of the bodies dumped in the river. Without some light as to the spot where the bodies were dumped in the river, the time they were dumped, the water currents at the spots or flow channels along which the bodies floated, who did the dumping, whether they were dumped with special effort to submerge them, the motive of the killers, where the victims came from; without these, it is extremely childish to come up with any firm conclusions on the number of bodies dumped in the water. This single error is enough to erase any belief that this Committee was competent or capable of meeting the demands of the public for the truth.

(2) The Committee’s Report leaves as many doubts as in the beginning as to the motives for the killings. Indeed, the Report went into a far-fetched theory of some inter-village wars involving some states, but could not offer any guidance as to the logistics of the bodies moving from the village battlefields to the river, at an identifiable spot.

(3) The Report automatically believed the denials by the prime suspects – the police. There was no investigation of the police officers likely to be involved. All that the Committee did was to ask the police if its men committed mass murder and the police of course denied it. The Report is just as ridiculous as believing that the culprits would come forward and confess. The Report could not tell why it accepted the story of the police as opposed to rejecting it or investigating further. In this respect alone, the Report is a travesty and a disgrace.

(4) The Report dwelled on irrelevances and contradicted the facts it relied upon. For instance, the Report was quick to debunk the idea that all the victims were dressed in boxers, by asserting that some were dressed in wrappers. Yet, it still entertained the village battlefield theory. Does it mean that the villager warriors were fighting dressed in wrappers while some were dressed in boxers. Also, given this battlefield possibility, how come there was nothing about the weapons used by the victims in the village war?

(5) At the beginning of this investigation, there was effort to ascertain the implication of the manner in which the government of Anambra state and the police command handled the scene of crime and the bodies, including the hasty burials of the bodies. Yet, the Report is silent on that. At least, it ought to have come out and clearly exonerate the state government or shed better light on the activities of its agents.

(6) There was a public health hazard in the dumping of dead bodies in a river that supplied drinking water to the relevant villages. The Report failed completely to address such concerns.

The Report is completely a disaster and in so far as it pretends to have exhausted the investigation and is able to proffer some explanations, it has become an obstruction of justice and cover-up in itself. Indeed, the interim report of the Commissioner of Health for Anambra State on the matter is far more coherent and logical and honest than this report, yet incomplete.

Notwithstanding the present charade called Report, the Government of Nigeria still has not explained what happened in Ezu River. The efforts of NGOS and human right organizations such as the organization I represent must continue its to seek justice and truth in this matter. It will be noted that I had personally filed a complaint with the ICC over this matter. However, out of respect and courtesy, once I learned that a Nigerian Senate Committee was investigating this matter, I stayed further action to give the Nigerian authorities an opportunity to address the problem. Now that a Report has come out, which is nothing but hogwash of a cover-up and obstruction of justice, I shall step up all alternative measures for justice. Nigerians need to know what happened. Nigerians need to know who killed those people, who they were and why they were killed. And I will do my utmost to help them get answers to these questions.

Emeka Ugwuonye, Esquire

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