Unequal Criminal Justice System By Femi Falana SAN – TheNigerialawyer

The Economic and Crimes Commission (EFCC) has secured 312
convictions and recovered assets worth N11.5 billion. In the first
quarter of this year the EFCC recorded 192 convictions and
recovered assets of N117 billion.

It is indisputable that the rate of convictions has increased
due to the Administration of Criminal Justice Act which has
provided for the acceleration of criminal cases in all federal
courts. But apart from two former governors, namely Messrs Joshua
Dariye and Jolly Nyame the list of convicted persons is made of
lowly placed individuals in the society. Owing to abuse of court
process, rich defendants have continued to frustrate their
prosecution with the connivance of some senior lawyers. In this
presentation we shall examine the danger posed to the society by
unequal criminal justice system. We shall conclude the presentation
by calling on progressive lawyers to team up with other patriotic
forces to ensure that all defendants are treated equally under the
criminal justice system.

By virtue of section 17 (2) (a) of the Constitution of Nigeria,
every citizen shall have equality of rights, obligations and
opportunities before the law. But in practice, the rich and poor
defendants are not treated equally by Nigerian courts. Apart from
the fact that rich litigants have the means to hire the services of
the best lawyers in any area of the law the courts are manned by
judges who are not neutral in the class struggle being waged daily
by the Nigerian people. Realising that the majority of economically
marginalized citizens have no access to legal representation the
State has set up the Legal Aid Council to provide legal services to
indigent citizens. Owing to the fact that it is poorly funded, each
state government has established the Office of Public Defender to
ensure that underprivileged citizens are provided with legal
services.

Notwithstanding that the Economic and Financial Crimes
Commission (EFCC) has been accused by the bourgeois media of
engaging in Gestapo tactics with respect to the treatment of
suspects it cannot be denied that the rights of influential
criminal suspects are well respected by the commission. The big men
and women implicated in allegations of serious economic crimes
being investigated by the commission usually receive polite letters
of invitation, telephone calls or text messages advising them to
contact named investigators whose telephone numbers are supplied.
Through such arrangement, the suspects are allowed to report
themselves at their own convenience. Other suspects may decide to
vamoose or brief lawyers to embark on legal measures to shield them
from investigation.

If and whenever influential criminal suspects report themselves
they are treated with courtesy by the investigators. Since they are
presumed innocent until they are proved guilty by the State they
are never paraded before the media, regardless of the gravity of
the offence committed by them. Unlike what obtains in western
countries it is infra dignitate to subject big men and women to the
restraint of handcuff. Hence, hell was let loose when a chieftain
of the Peoples Democratic Party on trial for money laundering was
recently handcuffed by the Kuje prison authorities. A few years
ago, the Olusegun Obasanjo administration apologized in writing to
a former police chief who was handcuffed by the EFCC while he was
on trial for money laundering and corrupt practices to the tune of
N17 billion.

If a VIP suspect cannot be located by the commission his
relatives are never arrested. He is declared wanted and may be
reported to the Interpol. In Benedict Peters v EFCC , a high court
in the federal capital territory has ruled that the commission
lacks the power to declare any suspect wanted without a court
order. If the commission is going to detain a big man or woman for
more than 48 hours it has to obtain a remand order from a
Magistrate Court in line with the provisions of section 293 of the
Administration of Criminal Justice Act, 2015. Suspects always apply
to be kept in the commission’s cells since they are much more
comfortable than police and prison cells!

Owing to unequal justice that has become the hallmark of the
nation’s criminal justice system the prisons and police cells are
filled with the victims of our unjust socioeconomic system. On
account of prison congestion due to inadequate funding, majority of
the inmates who are awaiting trial are locked up with convicted
prisoners. Upon their release from dehumanising prison conditions
the awaiting trial inmates and convicts team up to join criminal
gangs constituted by frustrated young men and women in the larger
society. The criminal gangs drawn from the ghettoes in the cities
are fighting back on the streets in broad daylight and in the homes
of the rich and not so rich people in the dead of the night.
Instead of teaming up with the victims of frustration to terminate
institutionalized injustice in the land, Nigerian lawyers are using
the law to defend the status quo under the rule of law. The
Nigerian Bar Association which does not hesitate to mobilise
hundreds of lawyers to defend indicted senior lawyers and judges
has not deemed it fit to extend free legal services to indigent
defendants facing trial for poverty related offences in the
courts.

Double criminal justice system

It is common knowledge that Nigeria operates a double criminal
justice system, one for the rich and one for the poor. Majority of
indigent defendants are tried in the magistrate and area courts
have no access to lawyers. Because of the gravity of certain
offences indigent defendants are represented by young and
inexperienced lawyers assigned to them by the State. As a judicial
policy under the bourgeois legal system, applications for bail on
behalf of poor defendants are not always granted by trial courts on
the grounds that the defendants may not be able to produce reliable
persons to stand sureties for them. Even if bail is granted the
conditions attached to them are hardly met as they are tied to
ownership of properties by sureties. Since preliminary objections
are not filed by such defendants the trial courts are able to
conduct criminal cases involving them expeditiously.

But the defence lawyers engaged by rich defendants manipulate
the criminal justice system by filing preliminary objections and
interlocutory appeals aimed at delaying or suspending trials.
Applications for bail are automatically granted while bail
conditions including ownership of properties located in urban
centres are easily met. To ensure that they stand their trial rich
defendants are asked to deposit their passports with the courts.
But since the local hospitals are ill-equipped due to the criminal
diversion of the funds earmarked to fix them the applications for
the release of the passports of VIPs on trial are granted to enable
them to travel abroad for medical check up or treatment. All
manners of preliminary objections and interlocutory appeals are
filed to frustrate the prosecution of politically exposed persons.
These dilatory applications are invariably granted by trial or
appellate courts because the defence lawyers are leaders of the
legal profession. In fact, some of them are members of the National
Judicial Council and Body of Benchers.

Since Nigeria operates a special criminal justice system for big
men and women the publication of a so called list of looters by the
Minister of Information, Mr. Lai Mohammed recently generated a
needless controversy. Not unexpectedly, bourgeois lawyers and media
practitioners insisted that the influential criminal suspects are
entitled to presumption of innocence guaranteed by section 36 of
the Constitution. It is the height of hypocrisy to accuse the
federal government of violating the fundamental right of the
alleged looters to fair hearing by publishing their names in a
country where the names of petty criminal suspects are published
while they are paraded and tried in the media by the Police.

On a daily basis, the homes of thousands of Nigerian citizens
who are accused of petty stealing and poverty related offences are
invaded by the police. Without search warrants the homes of the
suspects are searched for incriminating evidence. At the end of the
search the suspects are arrested without a warrant of arrest. They
are taken to police stations in handcuffs. At the police stations
they are tortured and hauled into custody. As no police station in
Nigeria has beds and bedding, suspects are made to sleep on bare
floor in crowded cells. Even though bail is said to be free the
price fixed by the police for every bail application depends on the
nature of the offence. For instance, the price for bail in offence
of stealing is a percentage of the amount involved! In the prisons,
rich suspects stay in “white house” cells.

Indigent suspects whose whereabouts are unknown are not usually
declared wanted by the police. In lieu of such suspects their
family members including children are arrested and held hostage.
The hostages are not granted bail until the suspects are found and
arrested by the police. Lawyers who visit their clients in police
custody for the purpose of giving legal advice are subjected to
harassment for interfering in police investigation. The lawyers are
rudely told to go and wait in court for their clients. Applications
for bail submitted by lawyers are ignored by the police as the
suspects are asked to apply for bail through their relatives in
order to facilitate extortion.

Suspects involved in armed robbery, kidnapping and other serious
offences are subjected to horrendous torture during investigation.
Once “confessional statements” have been extracted from them they
are paraded at well attended press conferences addressed by state
commissioners of police. To corroborate the allegations contained
in the text of the press conference of the police chief the
suspects are asked incriminating questions by media representatives
where they make incriminating statements. At the end of the press
conference some of the suspects are extra judicially killed in
police custody under the pretext that they are trying to escape
while others are charged with armed robbery or kidnapping.
Notwithstanding that the suspects are presumed innocent until
proved guilty by the prosecution prejudicial stories concerning the
suspects based on information obtained from the police are
published by the media during the trial.

In order to ridicule the criminal justice system senior lawyers
allow rented crowds in colourful uniforms otherwise called “aso
ebi” to dance and sing in praise of politically exposed persons
charged with looting the treasury. Even the Nigerian Bar
Association recently carried the dangerous joke to the ridiculous
extent of directing all lawyers in the country to boycott courts in
solidarity with some influential members of the legal profession
charged with money laundering, corruption, failure to declare
assets and allied offences. By making a mockery of the criminal
justice system Nigerian lawyers hardly realize that they are
collaborating with criminal elements to subvert the rule of law and
pave way for anarchy.

However, a branch of the Nigerian Bar Association has just
passed a resolution banning lawyers in a particular state from
appearing in any court to defend persons charged with armed robbery
and kidnapping. The resolution was informed by the fact that a
number of lawyers have been victims of armed robbery and kidnapping
in that particular state. With respect, the resolution is illegal
and immoral in every material particular. It is illegal in the
sense that every person charged with a criminal offence is entitled
to legal representation by virtue of section 36 of the
Constitution. The resolution is immoral in the sense that lawyers
have not stopped defending the highly placed criminal elements who
bear responsibility for violent crimes by engaging in the criminal
diversion of public funds earmarked for the provision of
opportunities for young people to secure adequate means of
livelihood.

Indeed, the resolution will not achieve its objective as the
State is under a legal obligation to assign lawyers to indigent
citizens who are charged with armed robbery, kidnapping and other
capital offences but lack the means to engage the services of
defence counsel.

Instead of engaging in misdirected antagonism by withdrawing
services or boycotting courts to protest the atrocities of criminal
gangs the Nigerian Bar Association should release that the security
and welfare of the people is said to be the primary purpose of the
government. Therefore, the Nigerian Bar Association should mobilize
lawyers to sue the federal and state governments to refund the
ransom paid to kidnappers by victims. In Mrs Dorcas Afolalu v
Federal Government of Nigeria the Court of Justice of the Economic
Community of West African States (ECOWAS) awarded N10 million to
the plaintiff for the failure of the defendant to prevent armed
thugs from killing her husband during the post election violence
which occurred in Kaduna in April 2011.

No doubt, the blatant manipulation of the criminal justice
system is not limited to the protection of members of the ruling
class. Under the unequal criminal justice system the multinational
corporations operating in the country have been conferred with
illegal immunity. Hence, the branches of the Nigerian Bar
Association in the oil producing communities have never asked for
the prosecution of oil companies that have engaged in the pollution
and degradation of the environment in the Niger Delta region. Some
members of the legal profession who have accused the anti graft
agencies of selective prosecution of members of the opposition have
never questioned the rationale in allowing a foreign company like
Siemens to continue to corner juicy contracts after its indictment
by a German Court. Ditto for Julius Berger whose criminal
involvement in the Halliburton scandal has not had any adverse
effect on its business in Nigeria.

Unlike rich criminal suspects who are defended by hundreds of
lawyers whenever they are charged with criminal offences only a
handful of lawyers are prepared to provide pro bono services to
economically disadvantaged citizens. In a press briefing last year,
the AG of Lagos state announced that about 6, 000 Nigerian citizens
were awaiting trial in prison custody due to lack of legal
representation. But whenever senior lawyers and judges are charged
with corrupt practices they are defended by hundreds of lawyers.
The other day, a judge openly accused lawyers of intimidating her
court when 90 Senior Advocates of Nigeria and their junior
colleagues announced appearance for a senior lawyer who was charged
with money laundering and diversion of the course of justice.

Disturbed by such blatant manipulation of the criminal justice
system by senior lawyers the Supreme Court took advantage of the
case of Joshua Dariye v Federal Republic of Nigeria to caution
Nigerian lawyers to desist from resorting to time-wasting tactics
to frustrate the trial of indicted members of the ruling class. In
the leading judgment of the apex court (per Ngwuta J.S.C.) held
inter alia:

“It is not the duty of learned counsel to resort to motions
aimed principally at delaying or even scuttling the process of
determining whether or not there is substance in the charges as
laid. In my view, this motion is a disservice to the criminal
process and a contemptuous lip service to the fight against
corruption. The tactics employed here is only one of the means by
which the rich and powerful cripple the criminal process. There are
cases where the accused developed some rare illness which acts up
just before the date set for their trial. They jet out of the
country to attend to their health and the case is adjourned. If the
medical facilities are not available locally to meet their medical
needs it is only because due to corruption in high places the
country cannot build proper medical facilities equipped with the
state of the arts gadgets. There should be no clog in the process
of determining whether or not a person accused of crime is guilty
irrespective of his status in the society.”

In tracing the genesis of the gross abuse of the process of the
court to frustrate the trial of criminal cases involving rich
defendants, Rhodes-Vivour J.S.C. had this to say:

“It has been the practice since the third Republic commenced in
1999 for well to do individuals who face criminal cases, to ensure
such trials never proceed. This is done by filing in court relevant
and irrelevant applications, appeals all designed to stop the trial
from proceeding to conclusion. This is a disturbing trend that has
been allowed to fester for too long. The courts should rise and
stop this disturbing trend in our criminal justice system. Happily,
both courts below and this court have done so in this case.”

In his own contribution to the judgment, Nweze J.S.C. berated
politically exposed persons and their counsel for deliberately
delaying their criminal trial when he rightly observed thus:

“I have noticed a worrisome trend in most recent time,
particularly among politically exposed citizens of this great
country, imagining that they are above the laws of the land, have
perfected some awkward and graceless tactics of delaying their
trial when they run into conflict with our penal statutes”.

It is high time that Nigerian lawyers joined other common law
countries by preventing the rich and powerful individuals and
corporate bodies from hijacking the criminal justice system. For
instance, the independent counsel, Mr. Robert Mueller, who
investigated the alleged hacking into the 2016 Presidential
election in the United States of America, has indicted, convicted
or got pleas from 34 people and companies including top advisers to
President Trump. This would have been impossible in Nigeria as a
lawyer to one of the suspects would have applied for and obtained a
court order of perpetual injunction restraining the independent
counsel from arresting, investigating and prosecuting anyone linked
to the subject matter of the probe. In fact, all applications made
by the Independent Corrupt Practice and Other Related Offences
Commission and non state actors for the appointment of independent
counsel to probe alleged corrupt practices of some state governors
pursuant to Section 52 of the ICPC Act have been turned down by the
office of the Chief Justice of Nigeria.

The way forward

To decongest the prisons in the country the Chief Justice of
Nigeria, the Chief Judges of the states are empowered by section 1
of the Criminal Justice (Release from custody) Special Provisions
Act to visit the prisons and order the release of inmate who ought
not to be detained in prison custody. Similarly section 34 of the
Administration of Criminal Justice Act, 2015 has imposed on duty on
Chief Judges to designate Magistrates to conduct monthly visits to
all police stations in their respective areas of jurisdiction. The
Chief Judge of Lagos state, the Honourable Justice Opeyemi Oke
acceded to the request made by our law in December 2018 to
designate Magistrates to visit all police stations in Lagos state
on a monthly basis.

Owing to the success of the policy in Lagos state former Chief
Justice Walter Onnoghen directed other Chief Judges in the country
to appoint Magistrates to visit police stations with a view to
releasing illegally detained people or grant them bail. It is hoped
that the remaining 123 branches of the Nigerian Bar Association
will emulate the Ikorodu and Epe branches in Lagos state by
ensuring that Magistrates are accompanied during such prison
visits. Another initiative which ought to be embraced by Nigerian
lawyers is the Practice Direction made pursuant to the
Administration of Criminal Justice 2011 by the Honourable Oke to
address the indiscriminate imprisonment of poor people. Under the
Practice Direction the judiciary has established Criminal
Restoration Centre to serve as a mediation for the resolution of
minor criminal offences.

According to the Chief Judge of Lagos state “petty offenders
will be diverted to the Restoration Centres where non-custodial
sentences, including fines, restitution orders and community
service orders would be used as long as they are willing to take
responsibility for their actions”. In justifying the centre her
Ladyship had this to say:

“Today in Nigeria we have seen countless cases where defendants
are arrested for minor offences such as burglary and wandering;
they are locked up in our prisons for the flimsiest reasons to join
the teeming population awaiting trial inmates. In fact, the
awaiting trial inmates account for more than 75 percent of the
inmates in prisons today. They are in our prisons with hardened
criminals and by the time they come out they have been initiated
into a life of crime and are ready to spreads terror, death and
destruction in their post-prison escapades.”

Conclusion

Since law alone cannot curb the crisis of unequal criminal
justice in the country I am compelled to invite Nigerian lawyers to
appreciate that Nigerian cannot guarantee law and order under the
peripheral capitalist system being operated by the government. In
other words, the country will not know peace without economic
empowerment of the people. Instead of relying on market forces as
dictated by the neoliberal elements in the government the State
should empower the Nigerian people to control the economy. It is my
submission that the economy of the country cannot be transformed in
favour of Nigeria on the basis of the dangerous prescriptions of
the World Bank and International Monetary Fund. Since all
capitalist governments are violent because capitalism is an
ideology of violence against the people, Nigeria cannot be an
exception. Therefore, Nigerian lawyers should make a strong case
for the actualization of the socio-economic rights embodied in the
fundamental objectives and directive principles and set out in
chapter 2 of the Constitution.

Permit me to conclude this Keynote Address with the cautionary
words of the Late Akinola Aguda who once said:

“In a developing country like ours, as long as a small minority
of the citizens command an over-whelming proportion of the wealth
and the means for the acquisition of the capital of the country so
long as any hope of justice for the teeming millions will continue
to elude us. It appears clear that whilst millions of our people
are living either below or just near starvation level and thousands
are jobless, justice can only be the preserve of those few who have
the surplus capital to pursue the same.”