PERPETUAL HEARINGS AND DELAYED JUSTICE IN CORRUPTION CASES IN NIGERIA: CAUSES, EFFECTS AND WAY FORWARD
INTRODUCTION
Permit me to thank
the leadership of the Centre for
Anti-Corruption and Open Leadership, CACOL, for inviting me to share ideas
on the all important theme of today’s discourse – perpetual hearings and delayed justice on corruption cases in Nigeria:
Causes, effects and ways forward.
The topic, it must
be admitted, is very wide in scope. A meaningful discussion can be undertaken
only if the individual discussant restricts his/her inputs to a small aspect of
the topic. For this reason, I have chosen to examine the topic, using the suits
involving some bank workers (in CBN and six other banks) as a case study. The
suits involving these bank workers are usually reported in the media under
various captions such as “CBN Currency mutilation scam/fraud”.
THE BASIC FACTS IN THE SUITS
Sometime in May 2015,
some twenty-two (22) accused persons were charged for various offences,
consisting of one hundred and eight (108) counts, in seven (7) different suits.
The suits are:
- FHC/IB/31C/2015
- FHC/IB/32C/2015
- FHC/IB/33C/2015
- FHC/IB/34C/2015
- FHC/IB/35C/2015
- FHC/IB/36C/2015
- FHC/IB/37C/2015
The Defendants
The accused
persons in the above suits are:
(1) Kolawole Babalola
(2)
Olaniran Muniru Adeola
(3)
Toogun Kayode Philip
(4)
Isiaq Akano
(5)
Ayodele Festus Adeyemi
(6)
Oyebamiji Akeem
(7) Ayodeji Aleshe
(8)
Ajiwe Sunday Adegoke
(9)
Ajunwa Bolade
(10) Samuel Ogbeide
(11) Oni Ademola Dolapo
(12) Afolabi Esther Olunike
(13) Ademola Ebenezer Adewale
(14) Kehinde Atokun
(15) Olukunle Sijuade
(16) Tope Akintade
(17) Salami Ibrahim
(18) Oddiah Emmanuel
(19) Patience Okoro Eye
(20) Afolabi Olufemi Johnson
(21) Ilori Adekunle Sunday
(22) Fatai Adedokun Yusuf
The Banks Involved
Apart from the
CBN, six (6) other banks were involved. They are:
- First Bank
- Wema Bank
- FCMB
- Zenith Bank
- Sterling Bank/Equitorial Trust, and
- ECO Bank.
The Central Charge
The central
charge/allegation in all the suits is that the CBN was induced to credit each
of the banks involved with sums of money in excess of the actual amount of
mutilated currencies, which were to be replaced.
The monetary value of the excess amount by which the
CBN was allegedly induced to credit the six banks involved in all the suits is
about N7.4bn (precisely N7,412,341,590)
as the attached tabulated analysis of the charges show.
However, apart
from the N7.4bn, there is Suit No. FHC/IB/36C/2015 in which the defendants were
alleged to have:
“abused
their office by destroying a box marked ‘counted
audited dirty’ filled with
newspapers in place of a box containing N10, 000,000 (ten million Naira) of
N1,000 denomination”.
Altogether
therefore, as the attached tabulated analysis shows, the total value of money involved in the seven suits is about N7.5bn.
Plea Bargain
About four (4) of
the defendants entered into plea bargain agreement with the Prosecution,
pursuant to the provisions of the Administration
of Criminal Justice Act (ACJA) 2015..
Two of the
defendants who entered into plea bargain agreement have been left off the hook
and released from prison custody. However, by the judgment of Hon. Justice J.
O. Abdulmalik delivered on 22nd March 2017, another two of the defendants who entered into
plea bargain agreement (Toogun Kayode Phillip and Afolabi Esther Olunike) were
convicted and sentenced to three years imprisonment, apart from forfeiting
various assets to the Federal Government of Nigeria.
Perpetual Hearings and Delayed Justice
Majority of the defendants however remain in Agodi
Prisons, Ibadan as their trial is yet to be concluded. The big question, which
is relevant to this “CACOL
Occasional Roundtable Discourse, CORD” is
why the delay?
The pending trial of majority of the
accused persons in the “CBN Currency mutilation scam” is difficult to
understand, particularly at the background of section 396 sub sections (3) & (4) of the Administration of
Criminal Justice Act (ACJA) 2015..
Section 396(3), ACJA, provides that:
“Upon arraignment,
the trial of the defendant shall proceed from day-to-day until the conclusion
of the trial”.
Section 396(4), ACJA, provides that:
“Where day-to-day
trial is impracticable after arraignment, no the party shall be entitled to
more than five adjournments from arraignment to final judgment: provided that
the interval between each adjournment shall not exceed 14 working days.”
IMPLICATION OF ACJA ON DURATION OF CRIMINAL TRIAL
The implication of
the provisions of section 396 (3) & (4) of ACJA reproduced above
on the duration of a criminal trial is that, on the average, proceedings in a
criminal trial, upon arraignment of the defendant, should be within ten (10)
months, inclusive of the constitutional 90 days allowed for delivery of
judgment, after final addresses, under section
294(1) of the Constitution of the Federal Republic of Nigeria, 1999, as
amended.
This is because,
under ACJA, as quoted above, about 70 working days (5 adjourned multiplied by
14 days allowed interval) are permitted for the maximum number of adjournments,
each, for the Prosecution and the defendant. This means a total of 140 working
days (or 7 months) for both the Prosecution and the Defendant. The Constitution
provides for judgment to be delivered within 90 days after adoption of final
written addresses by the Prosecution and the Defendant.
Considering that
corruption cases, by nature, are usually documentary
and that the Constitution, by
sections 35(2) and 36(11) does not generally envisage an arrest before
conclusion of investigation, it remains abnormal for proceedings in corruption
cases to be stalled, or continue indefinitely or to be adjourned sine die, even
though, the adjournment sine die may not be formally pronounced.
For the avoidance
of any doubt, section 35(2) of the Constitution of the Federal Republic of
Nigeria (CFRN) 1999, as amended, provides that:
“35. (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.”
Similarly, section
36(11), CFRN, 1999, as amended, provides:
36. (11) No person
who is tried for a criminal offence shall be compelled to give evidence at the
trial.”
THE CAUSE OF PERPETUAL HEARINGS AND DELAYED JUSTICE
The cause of
perpetual hearings and delayed justice is not something that should be
speculated upon. It is an issue that requires empirical and scientific
investigation.
One of the
critical roles, which the Presidential
Advisory Committee on Corruption ought to be playing is to cause scientific
investigations into the causes of indefinite or stalled hearings and delayed
justice in corruption cases. This may require interviewing broad sections of
stakeholders, prosecutors, defendants, and so on.
The Presidential Advisory Committee on
Corruption should be interested more in studying the system and subsystems in the processes of investigation and trial
proceedings in court in order to be satisfied that the fight against
corruption is not being transformed into a lucrative industry, which benefits
certain forces who occupy strategic positions in the processes, at the expense
of the larger society.
Applying this
principle to our case study, it may not be too much for the Presidential Advisory Committee on
Corruption to inquire into the cause of stalled proceedings in the cases
involving CBN and other bank workers who are being detained at Agodi Prisons on account of pending
trial after the defendants had being charged since 2015, and despite the fact
that the proof of evidence in the suits has been filed.
EFFECTS OF PERPETUAL HEARINGS AND DELAYED JUSTICE
The effects of perpetual
hearings and delayed justice are multifaceted.
First, it may
actually be a reflection of a
compromised system, either in the interest of the prosecution or the
defendants. Whatever the case may be, it means defeat for the publicly declared goal of “the fight against
corruption”.
Where perpetual hearings and delayed justice
occur at the instance of the prosecution, particularly where defendants are not
the politically exposed persons, the
implication is that the fight against
corruption is being conducted in violation of the constitutional guarantees of
the right to personal liberty (where the defendants are incarcerated) and the
right to presumption of innocence, until the contrary is proved beyond
reasonable doubt.
For the avoidance
of any doubt, Section 36(5), CFRN, 1999,
as amended, provides:
“36. (5) Every person who is charged with a criminal offence
shall be presumed to be innocent until he is proved guilty;
Provided that nothing in this section
shall invalidate any law by reason only that the law imposes upon any such
person the burden of proving particular facts.”
In the same vein,
section 35(4) & (5) provides
that any person who is arrested and detained shall have the right to be brought
to a court of law for trial within a reasonable period. Reasonable period within
which the person is to be brought to court is defined as one day where there is
a court of competent jurisdiction within a radius of forty kilometers and a
longer period the court may allow where there is no court within the prescribed
radius. Indeed, the constitution provides for unconditional or conditional
release from incarceration if a person is not tried within two months, from the date of his/her arrest or detention for the
person who is in detention or who is not entitled to bail. The constitution
also provides for unconditional or conditional release of a person who has been
released on bail, where the person is not tried within three months, without
prejudice to his or her standing trial for the alleged offence whenever the
prosecuting agency is ready to commence trial.
For the avoidance
of any doubt, the constitutional provisions (in sections 35(4) & (5)
guaranteeing freedom for a person accused of having committed a criminal
offence but who is not timeously tried are reproduced below:
35. (4):
Any person who is arrested or detained in accordance with subsection (1) (c) of
this section shall be brought before a court of law within a reasonable time,
and if he is not tried within a period of -
(a) two
months from the date of his arrest or detention in the case of a person who is
in custody or is not entitled to bail; or
(b) three
months from the date of his arrest or detention in the case of a person who has
been released on bail, he shall (without prejudice to any further proceedings
that may be brought against him) be released either unconditionally or upon
such conditions as are reasonably necessary to ensure that he appears for trial
at a later date.
35. (5)
In subsection (4) of this section, the expression "a reasonable time"
means –
(a) in
the case of an arrest or detention in any place where there is a court of
competent jurisdiction within a radius of forty kilometres, a period of one
day; and
(b) in any other case, a period of two
days or such longer period as in the circumstances may be considered by the
court to be reasonable.
THE NEED FOR PARADIGM SHIFT IN THE LEGAL FRAMEWORK IN
CRIMINAL PROSECUTION OF PERSONS ACCUSED OF CORRUPT PRACTICES
Currently,
the constitutional provision in section 36(5) is that a criminally accused
person is presumed innocent until his/her guilt is proved. Unless and until
this legal principle is altered, the fight against corruption can only be waged
within the established legal framework, in the interest of preventing arbitrariness,
impunity, whims and caprices in governance.
I however advocate that a paradigm shift
in the law governing criminal prosecution such that as far as allegations of
corruption alone are concerned, the suspect should be presumed guilty until
he/she proves otherwise beyond reasonable doubt. In other words, it is the
accused public officer/former public officer who should discharge the burden of
proving that his/her possessions and assets are not products of illicit acts.
THE WAY FORWARD
The way forward,
as far as perpetual hearings and delayed justice are concerned, appears to be
intrinsically connected to the abandonment of the collective good of the larger
society by the State (government) and the competitive individualistic struggles
to survive in the increasing harsh economic realities of life, which have
created palpable fear in broad segments of the population.
Unless the State
assumes its pre-1986 state-interventionist policies and abandons the
neo-liberal phase; unless the state (rather than the private sector) is
regarded as the engine of economic growth, the fight against corruption would
continue to suffer various types of defeats as exemplified in perpetual
hearings and delayed justice.
Within the
suggested conceptualization of the required paradigm shift in the role of the
state in socio-economic development, corruption
would have to be broadly redefined beyond stealing of cash and the attendant
judicial corruption.
Privatization would have to be seen as a crime against
humanity, beyond simply naming it corruption.
Contractocracy (rather than employment of direct labour
and empowerment of ministries of government to perform their statutory
mandates) would have to be perceived as corruption.
Medical tourism by top public officers without disclosing
the amount of money expended in such acts would have to be treated as
corruption which has to be severely punished.
Ostentatious living by public officers (whose payslips
show a monthly salary of about N500,000) would have to be treated as corruption.
The way forward
for a genuine and objective fight against corruption would involve all former
and current to public officers
justifying their assets against their legitimate monthly salaries. Anyone
who cannot justify his or her assets from earnings from public office should
forfeit such to a Trust Fund.
The fight against
corruption, to be meaningful, must involve establishment
of a Trust Fund into which would be paid all recoveries in order to avoid recovery for relooting.
Finally, as
Abubakar Mahmood, SAN advocated at the NBA 2016 General Conference, the policy
of concentrating investigative and prosecutorial powers in anti-graft agencies
may have to be relooked in the light of perpetual hearings and delayed justice.
Currently, in
Nigeria, institutions such as the Nigeria Police Force, ICPC and EFCC combine
both investigative and prosecutorial powers, subject to the constitutional
powers of the Attorney General under section 174(1) of the 1999 Constitution
(and section 211(1) in the case of Attorney General of the State) to institute
and undertake, take over and continue and discontinue criminal proceedings
against any person and in any court of law, other than court-martial.
On an international
basis, two major approaches define the relationship between criminal
investigation and prosecution. These are the
Legality principle (in the inquisitorial systems in countries such as in
Germany, Italy, Japan, etc) and the
Opportunity Principle (in the adversarial common law tradition in countries
such as England & Wales, Ireland, Northern Ireland, Australia, New Zealand,
Canada, etc).
Under the Legality principle associated with the
Inquisitorial system, the Prosecutor is
separate from the investigator but the Prosecutor is in control and in fact
directs investigation, including pre-trial investigation. In principle, once there is adequate evidence of commission of a crime by a suspect,
the person has to be brought to court for prosecution.
Under the Opportunity principle, which
characterizes the policy and practice in the common law tradition, prosecutors
are separate from investigators but they offer advice to the police
investigators. Under this system, the
police have discretionary powers in deciding whether or not to prosecute, on
the consideration of factors such as public interests, the gravity of the
offence, availability of resources to prosecute, etc.
Femi Aborisade
[1]
Being paper delivered at the ‘CACOL
Occasional Roundtable Discourse, CORD’ held at the Social Justice Centre,
Falana & Falana’s Chambers, 25, Adekunle Fajuyi Way, GRA, Ikeja Lagos on 19
April 2017.
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