Notable stakeholders in the criminal justice system gathered
in Lagos recently to brainstorm on protracted high-profile
corruption cases and how they can be resolved, OLADIMEJI
RAMON reports
Concerned about many unresolved high-profile criminal cases
littering the courts across the country, stakeholders in the
justice sector recently converged on Lagos for a round-table
discussion aimed at dissecting the issues and finding possible
solutions.
The round-table discussion was tagged, “Strategies and
approaches for successful completion and effective prosecution of
abandoned or unresolved high-profile cases of corruption in
Nigeria.”
It was organised by a human rights advocacy group,
Socio-Economic Rights and Accountability Project, in collaboration
with Trust Africa.
Present were the Attorney General of the Federation and Minister
of Justice, Mr. Abubakar Malami (SAN), who was represented by the
Special Assistant to President Muhammadu Buhari on Prosecution, Mr.
Okoi Obono-Obla; and the acting Chairman of the Economic and
Financial Crimes Commission, who was represented by the Head of
Legal Department, EFCC, Mr. G.K. Latona.
Among the others were the Chairman of the Presidential Advisory
Committee Against Corruption, Prof. Itse Sagay (SAN); and the
President of the Centre for Socio-Legal Studies, Prof. Yemi
Akinseye-George (SAN), who delivered the lead paper during the
discussion.
Akinseye-George pointed out that most of the high-profile
corruption cases that had remained unresolved for about a decade
involve mainly politically-exposed persons or public
office-holders, both serving and retired, including ministers,
governors, legislators and judges.
He recalled that among such cases is the N5bn alleged fraud case
of a former governor of Enugu State, Chimaroke Nnamani, which began
in May 2007 but has yet to be concluded and seemed to have been
swept under the carpet since 2015.
Another example of such cases, where charges were filed and the
case was never decided one way or the other by the court, was that
of a former Chairman of the Senate Committee on Health, Iyabo
Obasanjo-Bello, who the EFCC accused of illegally taking N10m from
the N300m unspent funds in the 2007 budget of the federal
Ministry of Health.
Though it is nine years after the EFCC filed the charges in
court, the ex-President’s daughter has neither been pronounced
guilty nor innocent. The case just fizzled out.
Akinseye-George said courts across the country are littered with
such unresolved high-profile corruption cases, but due to lack of
proper record, the problem has not been appropriately
estimated.
He recommended, therefore, that the first steps in tackling
these protracted cases would be creation of a database for all
corruption cases and also to improve case tracking by journalists
and civil society organisations, so as to keep them on the front
burner and to make it difficult for them to be swept under the
carpet.
Akinseye-George said, “Without such a database of all such
cases, resolved and unresolved, plea bargained and ongoing, and
their outcomes, we cannot conduct a meaningful assessment of the
fight against corruption.”
He advised that the Federal Government, through the AGF, should
take steps to “collate all the unresolved cases; obtain the record
of proceedings; review the charges; conduct an assessment of the
status of each case (case-by-case analysis) and where there is
evidence, relaunch the cases.”
Unresolved high-profile corruption cases have special
pathway
Akinseye-George said there is an observed pattern or course that
high-profile corruption cases take to get protracted and become
unresolved.
He noted that the arrest and arraignment of such persons usually
generate frenzy in the media, but soon after that the defendants,
through their lawyers, would raise preliminary objections,
challenging the competence of the charges and the jurisdiction of
the court to entertain their cases.
The judge would rule, dismissing such preliminary objections in
most cases, after which the defendants would file an appeal and ask
for stay of proceedings to await the outcome of the appeal.
While proceedings have been suspended, the appeal would travel
for many years up to the Supreme Court, which would then, in most
cases, dismiss the appeal and ask the defendants to go back to the
trial court for the case to be re-opened.
Akinseye-George said this scenario perfectly described the cases
of former governors of Plateau and Abia states, Joshua Dariye and
Orji Uzor Kalu, respectively, where the Supreme Court decried
dilatory tactics by accused persons.
ACJA intervention
The passage of the Administration of Criminal Justice Act 2015
by ex-President Goodluck Jonathan marked the dawn of a new era in
the Nigerian criminal justice system, as the law, among many other
radical provisions, abolished stay of proceedings.
But Akinseye-George said it is not yet Uhuru as defence lawyers
have started to deploy other tricks, which were not envisaged by
the ACJA, to delay criminal cases and keep them perpetually in
court.
Among such new dilatory tricks, according to Akinseye-George,
are long cross-examination of witnesses by defence lawyers;
intimidation of judges through petitions and complaints of alleged
bias; filing of no-case submission and constant resort to appeal as
exemplified by the ongoing N400m alleged fraud case of a former
Publicity Secretary of the Peoples Democratic Party, Olisa
Metuh.
Therefore, Sagay advocated “stiff punishment for counsel,
particularly Senior Advocates, who have turned obstruction and
frustration of proceedings in high-profile corruption cases into an
art.”
He said such punishment for SANs must include denial of right of
appearance in such high-profile and grand corruption cases.
He challenged the prosecutors to always insist on the full
application of Sections 306 and 396 of the Administration of
Criminal Justice Act on abolition of stay of proceedings.
Sagay said the prosecutors must also insist on Section 396(3)
and (4) of the ACJA which stipulate that “hearings shall be on a
daily basis, but in exceptional cases, while adjournments, not to
be in excess of 14 working days, may be granted, but such
adjournments must not exceed five in any proceedings.”
What must be done
Akinseye-George said the solution to the problem of unresolved
high-profile cases would take no less than institutional reforms,
stressing that the three arms of government must be willing to come
together and show equal commitment to achieving genuine
results.
He said citizens and individuals should not be left out of the
task too.
On the part of the executive arm of government, Akinseye-George
said there should be a commitment to overhaul the entire
anti-corruption apparatus.
He said, “Conduct a performance appraisal of each staff of the
anti-corruption agencies and remove the bad eggs. Those who are
found worthy should be retained to form the nucleus of the reformed
anti-graft bodies and set up an attractive package to attract the
best available personnel.”
The don noted that investigators and prosecutors of high-profile
corruption cases face uncommon challenges, which have to be
understood by the policymakers in order to adequately equip and
empower them for success.
He said due to the clandestine nature of financial crimes, they
are difficult to track and where they are tracked, the
investigators are susceptible to being compromised through
bribery.
He said, “Conscious and deliberate efforts should be made to
understand the challenges facing investigators of high-profile
corruption and financial crimes. There should be early engagement
between investigators and prosecutors.”
He added that efforts should be made to provide the
investigators and prosecutors with “better tools, pay them better,
provide better protection for them, reward them, weed out
non-performers and celebrate outstanding personnel.”
Why the public must buy in
Akinseye-George said corruption has become endemic and the jobs
of investigators and prosecutors have become more difficult due to
toleration and celebration of corrupt people by the people.
He noted that notorious clichés like ‘Public money is nobody’s
money’; ‘Chop make I chop’ and ‘Why are they witch-hunting (sic)
the opposition?’, have become rife, underscoring public apathy to
the anti-graft war.
To inspire the people’s confidence and get them enlisted in the
struggle to beat corruption, therefore, according to
Akinseye-George, remains a task for the government.
Banking reforms
But he observes that efforts at finding a lasting solution to
the problem of corruption would be incomplete without institutional
reforms in the banking sector.
He said, “Discourage cash transactions; abolish cash
transactions nationwide! And leverage on financial
intelligence.”
Role of judiciary
He said the judiciary must take steps to address “the general
impression that the judiciary is lenient towards high-profile
corrupt persons.”
While advocating improved funding and better welfare for judges
as well as respect for them by the executive and legislature,
Akinseye-George said the National Judicial Council too must “deal
with issues of corruption within its fold.”
Burden of proof must be shifted to
defendants
Akinseye-George said the constitutional presumption of innocence
makes it extremely difficult to prove allegations of corruption in
an adversarial system that Nigeria operates. He said except this is
reversed, conviction of high-profile corrupt persons will remain a
mirage.
He said, “X, a public officer, is on a salary of N9m a
year. He has in his possession about N150m that year. Who else can
explain how the officer came by the N150m?
“If a person is found with some money or property that cannot be
correlated with his verifiable earnings, let him prove it.”
He stressed, “We must place the burden on suspects of HPCC to
justify the funds and properties found in their possession or under
their control.”
The professor of Law said contrary to assumption within the
judiciary, shifting the burden of proof from the prosecution to the
defendants does not require an amendment to the constitution.
Akinseye-George said, “Our judges can use the provisions of
Section 36(5) and 36(11) of the Constitution and Section
167(d) of the Evidence Act to place the evidential burden on
individuals suspected to be living above their justifiable
income.”
Role of legislature
For the legislature, the task is to show commitment to the
passage of all outstanding laws aimed at tackling corruption.
Akinseye-George said the lawmakers must do this task not minding
that some members of the National Assembly have corruption cases
hanging on their necks.
One of the anti-corruption laws begging for the attention of the
legislators, Akinseye-George said, is “the Proceeds of Crime
Act.”
He explained, “The Proceeds of Crime Act provides legal backing
for civil standards in assets confiscation cases. But it may not be
passed because of the strained relationship between the National
Assembly and the executive and also due to lack of proactive
support for POCA by civil society organizations.”
AGF urged to implement suggestions
SERAP, in a letter dated September 15, 2017, by its Executive
Director, Adetokinbo Mumuni, to the AGF, called for the
implementation of the recommendations that came from the
round-table deliberations.
Mumumi said, “We would like to urge you to use your good offices
and leadership to secure the full and effective implementation by
your ministry of the key recommendations culled from the media
round-table.”
Culled: Punch
Notable stakeholders in the criminal justice system gathered
in Lagos recently to brainstorm on protracted high-profile
corruption cases and how they can be resolved, OLADIMEJI
RAMON reports
Concerned about many unresolved high-profile criminal cases
littering the courts across the country, stakeholders in the
justice sector recently converged on Lagos for a round-table
discussion aimed at dissecting the issues and finding possible
solutions.
The round-table discussion was tagged, “Strategies and
approaches for successful completion and effective prosecution of
abandoned or unresolved high-profile cases of corruption in
Nigeria.”
It was organised by a human rights advocacy group,
Socio-Economic Rights and Accountability Project, in collaboration
with Trust Africa.
Present were the Attorney General of the Federation and Minister
of Justice, Mr. Abubakar Malami (SAN), who was represented by the
Special Assistant to President Muhammadu Buhari on Prosecution, Mr.
Okoi Obono-Obla; and the acting Chairman of the Economic and
Financial Crimes Commission, who was represented by the Head of
Legal Department, EFCC, Mr. G.K. Latona.
Among the others were the Chairman of the Presidential Advisory
Committee Against Corruption, Prof. Itse Sagay (SAN); and the
President of the Centre for Socio-Legal Studies, Prof. Yemi
Akinseye-George (SAN), who delivered the lead paper during the
discussion.
Akinseye-George pointed out that most of the high-profile
corruption cases that had remained unresolved for about a decade
involve mainly politically-exposed persons or public
office-holders, both serving and retired, including ministers,
governors, legislators and judges.
He recalled that among such cases is the N5bn alleged fraud case
of a former governor of Enugu State, Chimaroke Nnamani, which began
in May 2007 but has yet to be concluded and seemed to have been
swept under the carpet since 2015.
Another example of such cases, where charges were filed and the
case was never decided one way or the other by the court, was that
of a former Chairman of the Senate Committee on Health, Iyabo
Obasanjo-Bello, who the EFCC accused of illegally taking N10m from
the N300m unspent funds in the 2007 budget of the federal
Ministry of Health.
Though it is nine years after the EFCC filed the charges in
court, the ex-President’s daughter has neither been pronounced
guilty nor innocent. The case just fizzled out.
Akinseye-George said courts across the country are littered with
such unresolved high-profile corruption cases, but due to lack of
proper record, the problem has not been appropriately
estimated.
He recommended, therefore, that the first steps in tackling
these protracted cases would be creation of a database for all
corruption cases and also to improve case tracking by journalists
and civil society organisations, so as to keep them on the front
burner and to make it difficult for them to be swept under the
carpet.
Akinseye-George said, “Without such a database of all such
cases, resolved and unresolved, plea bargained and ongoing, and
their outcomes, we cannot conduct a meaningful assessment of the
fight against corruption.”
He advised that the Federal Government, through the AGF, should
take steps to “collate all the unresolved cases; obtain the record
of proceedings; review the charges; conduct an assessment of the
status of each case (case-by-case analysis) and where there is
evidence, relaunch the cases.”
Unresolved high-profile corruption cases have special
pathway
Akinseye-George said there is an observed pattern or course that
high-profile corruption cases take to get protracted and become
unresolved.
He noted that the arrest and arraignment of such persons usually
generate frenzy in the media, but soon after that the defendants,
through their lawyers, would raise preliminary objections,
challenging the competence of the charges and the jurisdiction of
the court to entertain their cases.
The judge would rule, dismissing such preliminary objections in
most cases, after which the defendants would file an appeal and ask
for stay of proceedings to await the outcome of the appeal.
While proceedings have been suspended, the appeal would travel
for many years up to the Supreme Court, which would then, in most
cases, dismiss the appeal and ask the defendants to go back to the
trial court for the case to be re-opened.
Akinseye-George said this scenario perfectly described the cases
of former governors of Plateau and Abia states, Joshua Dariye and
Orji Uzor Kalu, respectively, where the Supreme Court decried
dilatory tactics by accused persons.
ACJA intervention
The passage of the Administration of Criminal Justice Act 2015
by ex-President Goodluck Jonathan marked the dawn of a new era in
the Nigerian criminal justice system, as the law, among many other
radical provisions, abolished stay of proceedings.
But Akinseye-George said it is not yet Uhuru as defence lawyers
have started to deploy other tricks, which were not envisaged by
the ACJA, to delay criminal cases and keep them perpetually in
court.
Among such new dilatory tricks, according to Akinseye-George,
are long cross-examination of witnesses by defence lawyers;
intimidation of judges through petitions and complaints of alleged
bias; filing of no-case submission and constant resort to appeal as
exemplified by the ongoing N400m alleged fraud case of a former
Publicity Secretary of the Peoples Democratic Party, Olisa
Metuh.
Therefore, Sagay advocated “stiff punishment for counsel,
particularly Senior Advocates, who have turned obstruction and
frustration of proceedings in high-profile corruption cases into an
art.”
He said such punishment for SANs must include denial of right of
appearance in such high-profile and grand corruption cases.
He challenged the prosecutors to always insist on the full
application of Sections 306 and 396 of the Administration of
Criminal Justice Act on abolition of stay of proceedings.
Sagay said the prosecutors must also insist on Section 396(3)
and (4) of the ACJA which stipulate that “hearings shall be on a
daily basis, but in exceptional cases, while adjournments, not to
be in excess of 14 working days, may be granted, but such
adjournments must not exceed five in any proceedings.”
What must be done
Akinseye-George said the solution to the problem of unresolved
high-profile cases would take no less than institutional reforms,
stressing that the three arms of government must be willing to come
together and show equal commitment to achieving genuine
results.
He said citizens and individuals should not be left out of the
task too.
On the part of the executive arm of government, Akinseye-George
said there should be a commitment to overhaul the entire
anti-corruption apparatus.
He said, “Conduct a performance appraisal of each staff of the
anti-corruption agencies and remove the bad eggs. Those who are
found worthy should be retained to form the nucleus of the reformed
anti-graft bodies and set up an attractive package to attract the
best available personnel.”
The don noted that investigators and prosecutors of high-profile
corruption cases face uncommon challenges, which have to be
understood by the policymakers in order to adequately equip and
empower them for success.
He said due to the clandestine nature of financial crimes, they
are difficult to track and where they are tracked, the
investigators are susceptible to being compromised through
bribery.
He said, “Conscious and deliberate efforts should be made to
understand the challenges facing investigators of high-profile
corruption and financial crimes. There should be early engagement
between investigators and prosecutors.”
He added that efforts should be made to provide the
investigators and prosecutors with “better tools, pay them better,
provide better protection for them, reward them, weed out
non-performers and celebrate outstanding personnel.”
Why the public must buy in
Akinseye-George said corruption has become endemic and the jobs
of investigators and prosecutors have become more difficult due to
toleration and celebration of corrupt people by the people.
He noted that notorious clichés like ‘Public money is nobody’s
money’; ‘Chop make I chop’ and ‘Why are they witch-hunting (sic)
the opposition?’, have become rife, underscoring public apathy to
the anti-graft war.
To inspire the people’s confidence and get them enlisted in the
struggle to beat corruption, therefore, according to
Akinseye-George, remains a task for the government.
Banking reforms
But he observes that efforts at finding a lasting solution to
the problem of corruption would be incomplete without institutional
reforms in the banking sector.
He said, “Discourage cash transactions; abolish cash
transactions nationwide! And leverage on financial
intelligence.”
Role of judiciary
He said the judiciary must take steps to address “the general
impression that the judiciary is lenient towards high-profile
corrupt persons.”
While advocating improved funding and better welfare for judges
as well as respect for them by the executive and legislature,
Akinseye-George said the National Judicial Council too must “deal
with issues of corruption within its fold.”
Burden of proof must be shifted to
defendants
Akinseye-George said the constitutional presumption of innocence
makes it extremely difficult to prove allegations of corruption in
an adversarial system that Nigeria operates. He said except this is
reversed, conviction of high-profile corrupt persons will remain a
mirage.
He said, “X, a public officer, is on a salary of N9m a
year. He has in his possession about N150m that year. Who else can
explain how the officer came by the N150m?
“If a person is found with some money or property that cannot be
correlated with his verifiable earnings, let him prove it.”
He stressed, “We must place the burden on suspects of HPCC to
justify the funds and properties found in their possession or under
their control.”
The professor of Law said contrary to assumption within the
judiciary, shifting the burden of proof from the prosecution to the
defendants does not require an amendment to the constitution.
Akinseye-George said, “Our judges can use the provisions of
Section 36(5) and 36(11) of the Constitution and Section
167(d) of the Evidence Act to place the evidential burden on
individuals suspected to be living above their justifiable
income.”
Role of legislature
For the legislature, the task is to show commitment to the
passage of all outstanding laws aimed at tackling corruption.
Akinseye-George said the lawmakers must do this task not minding
that some members of the National Assembly have corruption cases
hanging on their necks.
One of the anti-corruption laws begging for the attention of the
legislators, Akinseye-George said, is “the Proceeds of Crime
Act.”
He explained, “The Proceeds of Crime Act provides legal backing
for civil standards in assets confiscation cases. But it may not be
passed because of the strained relationship between the National
Assembly and the executive and also due to lack of proactive
support for POCA by civil society organizations.”
AGF urged to implement suggestions
SERAP, in a letter dated September 15, 2017, by its Executive
Director, Adetokinbo Mumuni, to the AGF, called for the
implementation of the recommendations that came from the
round-table deliberations.
Mumumi said, “We would like to urge you to use your good offices
and leadership to secure the full and effective implementation by
your ministry of the key recommendations culled from the media
round-table.”
Culled: Punch
Read more https://www.nairalaw.com/tackling-unresolved-high-profile-corruption-cases/