On
4th June 2016, the Federal Government published the values of
recovered cash loot, various sums involved in final forfeitures, interim
forfeitures in local and foreign currencies and a list of 239 non-cash loot comprising
farmlands, plots of land, vehicles, maritime vessels, completed and uncompleted
buildings, between 29 May 2015 and 25 May 2016. However, the identities of
persons from whom the recoveries and forfeitures were made were not disclosed,
contrary to repeated promises made by the regime to name and shame former public
officers who had looted public vaults.
Some
persons, including Professors of law, have attempted to rationalize the
non-disclosure of the names of persons from whom the recoveries were made and
those involved in interim and final forfeitures, arguing that premature
disclosure of names would have been illegal on the ground of likelihood of
claims of damages for defamation. But none of those who share this opinion have
gone ahead to cite the provisions of the law that would have been violated if
Mr. President or any other arm of government named and shamed those who
voluntarily made returns or have been made to suffer forfeitures.
In
this short article, I argue that by statutory and judicial authorities,
disclosure of names as well as the amount returned is not just what is legally required
but it is also what is in the public interest. By necessary implication,
suppression of the identities of those who made returns and have suffered
forfeitures, interim and/or final, smacks of undue secrecy, non-transparency, a
tendency to use the anti-graft agencies as tools of dispensing favours to
attain political control and subjugation. Without doubt, the failure of the
Federal Government of Nigeria to disclose the names of persons who voluntarily
returned looted cash and those who have suffered asset forfeitures either on
interim or final basis shows that the PMB/APC regime is succumbing to pressure
in the fight for probity and transparency in the handling of public affairs. In
the context of the fact that the identity of some other persons and the sums
they allegedly looted had been disclosed before commencement and conclusion of
their trials, the latest attitude of the regime amounts to double standards.
A
fundamental point to first establish is that disclosure of the identity of
persons who have voluntarily been making returns as well as those who have
suffered forfeitures and the value of what they return or forfeited ought to be
a product of a systematic process of investigation and prosecution through the
judicial system rather than being politicized through agencies of the executive
arm of government outside the judicial process. Where arrests are made pursuant
to proper investigation and suspects are promptly charged to court, disclosures ought to be made in the ordinary
course of prosecution of suspects. In the process of prosecution, relevant
agencies of government as well as individuals and organizations would have the
opportunity to gather empirical and verifiable information on recovered or
forfeited loot based on the processes
filed in the court’s Registry.
The
primary function of an anti-graft agency is to conduct investigation, gather
evidence and charge suspects or defendants to court, with or without the
defendant making confessional statements. Indeed, the defendant may only be prosecuted
and convicted based on proof by the prosecutor beyond reasonable doubt. A
defendant who is accused of an offence is not obliged to answer any question in
the process of investigation and interrogation. Under the EFCC Act however, the
only obligation of the defendant is to disclose details of his/her assets. Even
in the court, the accused is not compellable to give evidence against
himself/herself. But this would not hinder such a defendant from being
convicted based on the evidence placed before the court. This is the import of
a community interpretation of sections
35(2), 35(4), 35(5), 35(7), 36(5), 36(6)(a)-(c) and 36(11) of the Constitution
of the Federal Republic of Nigeria, CFRN, 1999, as amended, section 270(7), Administration
of Criminal Justice Act (ACJA); section 27(1) of the EFCC Act; section 29 of
the Police Act; Abidoye v. F.R.N
(2014) 5 NWLR (Pt. 1399) 30 and Chwuemeka
v. FRN (2016) 2 NWLR (Pt. 1495) 120.
However,
for a suspect or defendant who is disposed to plea bargain, the Administration
of Criminal Justice Act (ACJA) provides that an admission or confession upon
which plea bargain agreement may be based shall be voluntary and be expressly in
writing and signed, as follows:
“(7) An agreement between the parties contemplated
in subsection (3) shall be reduced to
writing and shall:
(a) state that, before conclusion of the agreement, the
defendant has been informed:
(i) that
he has a right to remain silent;
(ii) of
the consequences of not remaining silent; and
(iii) that
he is not obliged to make any confession or admission that could be used in
evidence against him.
(b) state
fully, the terms of the agreement and any admission made; and
(c) be
signed by the prosecutor, the
defendant, the legal practitioner and the interpreter, as the case may
be; and
(d) A copy of the agreement forwarded to the
Attorney-General of the Federation.” [See ACJA, Section 270 sub (7)]
In
other to strengthen the requirement of voluntariness in the drawing up of the
plea bargain agreement, section 270(6), ACJA, mandatorily provides that the
suspect or defendant shall be allowed to make inputs as follows:
“(6) The prosecution shall afford the victim or his
representative the opportunity to make representations to the prosecutor
regarding –
(a) the content of the agreement; and
(b) the
inclusion in the agreement of a compensation or restitution order.”
Once
it can be shown that the plea bargain agreement is the product of the
voluntariness of the suspect or defendant, such an agreement would be adjudged sufficient
evidence of the truth of the defendant’s guilt and the court could act upon
such voluntary confessional statements.
Where
a plea bargain agreement has been reached (including agreements to make
returns) between the defendant and the prosecutor, the
State/prosecutor/anti-graft agency lacks the discretion to delay prosecution.
Section 270(9), ACJA, mandatorily provides that:
“… the prosecutor shall inform the court that the parties have reached an agreement
and the presiding judge or magistrate shall then inquire from the defendant to
confirm the terms of the agreement.”
By
section 270(10)(a), ACJA, once satisfied that the defendant entered into the
plea bargain agreement voluntarily and without undue influence, the presiding
judge or magistrate is empowered to convict the defendant “in accordance with the terms of the agreement”. By section
270(11)(a), ACJA, the presiding judge or magistrate shall sentence the
defendant in accordance with the terms of the plea bargain agreement where the
agreed sentence is considered appropriate. However, by section 270(b)-(c), ACJA,
a lesser or heavier sentence may also be imposed where the presiding judge
considers the agreed sentence to be inappropriate.
The
provisions of section 270(10) & (11) are a codification of judicial
principles. In Ologe v. New Africa Holdings Ltd. (2013) 17 NWLR (Pt. 1384) 449 at 466, Paras. A – B, the apex court
held that the court can convict an accused based solely on confessional
statement, as follows:
“… A confessional statement made by an
accused person, which is properly admitted in evidence is, in law, the best
pointer to the truth of the role played by such accused person in the
commission of the offence. Such a confessional statement can be accepted as
satisfactory evidence upon which alone the accused can be convicted.”
Pursuant
to the sentence passed by the presiding judge, an order could then be made
“that any money, asset or property agreed to be forfeited under the plea
bargain shall be transferred to and vest in the victim or his representative or
any other person as may be appropriate or reasonably feasible (section 270(12).
ACJA. Under the EFCC Act, forfeited assets, in appropriate cases, are vested in
the Federal Government. Subsequently, the prosecutor is mandatorily empowered
to “take reasonable steps to ensure that any
money, asset or property agreed to be forfeited or returned by the offender
under a plea bargain are transferred to or vested in the victim, his
representative or other person lawfully entitled to it.” (section 270(13), ACJA).
It is only within this context that “Any
person who willfully and without just cause obstructs or impedes the vesting or
transfer of any money, asset or property under this Act shall be guilty of an
offence and liable to imprisonment for 7 years without an option of fine.” (section 270(14), ACJA).
Even
within the context of the EFCC Act, the power to confiscate and declare assets
of defendants forfeited is vested only in the courts, not in the EFCC. Sections 19 to 25 of the EFCC Act
empower the court to make an order of forfeiture, seizure and/or confiscation
of all assets and properties, real or personal that may have been acquired,
obtained and/or derived, directly or indirectly, disclosed or undisclosed in
Any Assets Declaration Form. The EFCC is only empowered to seize defendants’
assets in appropriate cases and then apply to court for interim orders, pending
final conviction in deserving cases.
Where publication of names is done
within the context of a factual report of the contents of processes filed in
court in the course of proceedings, including confessional statements and terms
of signed plea bargain agreements, no looter can succeed in a claim of defamatory
publication or libel.
By the decisions of the apex court
in plethora of cases, including Ologe
v. New Africa Holdings Ltd. (2013) 17 NWLR (Pt. 1384)
449, the law is that publication in
the mass media is “not defamatory if it
is an accurate and fair report of what transpired, and it needs not be verbatim
or word for word. If what is stated is substantially a fair and accurate
account of what is sought to be conveyed, then the statement cannot be said to
be defamatory.” Therefore, publication of the facts contained in a plea
bargain agreement signed voluntarily by the defendant showing that the
defendant voluntarily agreed to return looted assets cannot be said to be
defamatory. (See also Ekong v. Otop
(2014) 11 NWLR (Pt. 1419) 549; Peterside
v. Fubara (2013) 6 NWLR (Pt. 1349) 156).
From
the law as established by the apex court, there
is no legal liability, which the Federal Government may suffer by disclosing
the identities of persons who voluntarily made returns of looted funds and
non-cash loots. Indeed, in the case of looters who have been made to forfeit
looted assets in final forfeiture orders, there is absolutely no legal
liability for publishing such names. Similarly, publication of names of looters
involved in interim forfeitures cannot be defamatory, provided the publication
is factual and not false. The best tradition of a democratically elected
government operating a written constitution and specific statutes governing
specific areas of law is for government to charge suspects to court. In the
process, the names of looters as well as the value of what they return or
forfeited pursuant to any plea bargain agreements, confessional statements
and/or admission of guilt would simultaneously become public knowledge.
The compelling conclusion that may
be drawn is that the non-disclosure of the identities of suspected looters who
have made returns is not in the public interest. It should be noted that as far as
plea bargain agreements are concerned under the ACJA, until the court convicts, sentences and makes
appropriate orders under section 270(10)-(12), ACJA, the defendant is
permitted, under section 270 (15)(b), ACJA, to back out of the plea bargain
agreement, if he/she is ready to face trial. If the defendant withdraws from
the plea bargain agreement, section 16 of ACJA provides that no references shall be made to any prior admission or
confession or the plea agreement. Therefore, by virtue of section 270(15)(b), ACJA,
alleged recoveries made by an anti-graft agency without charging the looters to
court to obtain definitive court orders is not in the best interest of fighting
corruption in a transparent and non-discriminatory manner.
In the light of the foregoing
analysis, public interest dictates full disclosure of the value of recovered
loot and forfeitures but also the identities of the looters through the prosecutorial
judicial system. The only caution the Government may exercise in making such
disclosures in official statements is that technically, in the eyes of the law,
until the court convicts and sentences the looters, they remain “suspected”
looters or “defendants” but not looters.
We therefore call on the Federal
Government to charge all suspects to court and in the process, simultaneously, name
and shame them. There is no legal liability in so doing. Non-disclosure of
names of looters serves only undemocratic hegemonic political calculations and
provides room for the likelihood of re-looting part of the recovered loot.
Femi Aborisade, Esq.
6th June 2016.
Comments
Post a Comment