Category: Law

Like in the past, three former governors were paraded in court last week for alleged corruption and money laundering. Nearly 10 years ago, some former governors were in the same boat. Not all the cases have been decided.Will things be different this time around?  Should specialised courts or tribunals be created to handle these cases? Some think so, writes Eric Ikhilae.

The nation has witnessed it all before – the arraignment of former governors for alleged embezzlement and related offences. Last week, two former governors were taken to court for alleged corruption, provoking comments on what will become of their cases since similar cases in the past either ended dramatically or are still pending in court.

How will the cases of former Imo, Adamawa and Jigawa states governors Ikedi Ohakim, Murtala Nyako and Sule Lamido, who were arraigned last week but pleaded not guilty, end?

Corruption, experts say, has thrived due to the unwillingness of past administrations to confront it headlong.

The situation is made worse where identified cases of corruption are either not punished or culprits are given a slap on the wrist, a practice that has nurtured the vice to its pandemic height. The situation is not also helped where corruption cases taken to court linger for years, and, in the process, evidences are either contaminated or destroyed, thereby allowing culprits to walk away free.

Many have argued that, while it is impossible to eradicate corruption in every society, the vice could be reduced significantly in a country where the leadership do not condone acts of corruption (no matter the status of the culprit) combined with an effectual criminal justice system.

With the resolve of the government, led by President Muhammadu Buhari, to confront corruption headlong, the next step is to position the criminal justice system to effectively play its part.

Every criminal justice system consists of three core elements; the first being the investigative process (involving the investigating agencies), the second is the trial process (the court system), while the third is the prison system.

The officials mostly fingered for the frequent failure recorded in the prosecution of corruption cases are the investigative agencies and the court system, who are blamed for poor investigation and delayed trial. Instances abound where  cases of corruption failed to yield conviction at trial, owing to weak evidences from poor quality of investigation.

Often times, the investigating agencies – the Nigeria Police Force (NPF), the Economic and Financial Crimes Commission (EFCC), the Independent Corrupt Practices and other related offences Commission (ICPC), among others – blame their inability to provide iron-cast evidence to paucity of funds, as was the case under the immediate past administration of President Goodluck Jonathan.

It has also been argued, however, that where such agencies were well-funded in the past, some of the funds were mostly misapplied, thereby denying the agencies the capacity to acquire the requisite tools and training for their personnel.

Today, most investigative agencies, particularly the NPF, do not have a functional forensic laboratory, and, as such, cannot conduct scientific investigation. This is despite the huge sums it has received over the years as budgetary allocations. Police investigators rely on confessional statements (which are mostly induced) and circumstantial evidence to secure conviction in criminal cases.

A former Chief Justice of Nigeria (CJN), Justice Aloma Mukhtar, was once compelled to express her displeasure over this practice, which she argued also accounted for congestion in the prisons.

Speaking at the event marking the commencement of the 2013/2014 legal year in September 2013, Justice Muktar noted: “It is common knowledge that our security agencies usually rush to the courts with suspects before looking for evidence to prosecute them.

“The persistent use of the ‘Holden Charge’ by these agencies to detain awaiting trial suspects is a major contributor to the high number of cases pending in our courts.

”This procedure is a far cry from what obtains in other democracies, where discrete surveillance is placed on crime suspects who are painstakingly stalked by security agents, until such a time when enough evidence would have been obtained for their arrest, arraignment and prosecution.

“But in Nigeria, suspects are promptly arrested and often times arraigned in court, even when no evidence for prosecution has been gathered. The backlash from such failure of proper investigation by our security agencies is the resultant hike in the number of cases pending in the courts.”

The court system is not any better. Cases linger for years due to archaic procedural rules and practices that allow for undue delay. Aside that, court rules allow for the hearing of any application once filed, makes provision for interlocutory appeal that results in the stay of proceedings at trial court. Some practices by trial judges also aid delay. Some judges still adjourn cases solely for mention.

Where most courts claim to have spent huge sums in procuring Information and Communications Technology (ICT) tools, they still operate manually. From the Supreme Court, through the Court of Appeal, the Federal High Court to the various state High Courts, processes are still filed manually, while hearing notices  and other information are passed to parties manually, in spite of the requirement that lawyers, in every case, include his/her contact information, including e-mail address on every process filed.

Again, Justice Mukhtar also, in the speech she delivered at the same event, expressed displeasure over the delay and the slow pace of  the process of justice administration in the country.

She attributed this to archaic judicial practices, noting that the process of interlocutory appeals aggravates the situation to the extent that, by the time the Supreme Court decides that hearing be continued in trial court, most of the witnesses might have died or alive but senile, with documents no longer traceable.

She advocated an overhaul of the criminal laws, which she described as “archaic and culturally irrelevant. She observed that “to exhaust complete remedy in a case today, that is from trial court to Supreme Court, could take up to 20 years with the original litigants dead and substituted and, in some cases, the substitutes also dead and substituted.”

Justice Muktar’s successor, Justice Mahmud Mohammed, argued that the failure to ensure a functional justice administration system accounted for the growing impunity in the land.

He noted that,  despite that the world accepts the intangible, yet, strong link between law and order, and development of the society, Nigeria struggles to provide an efficient, fair and effective system of justice that is able to ensure that everyone, regardless of station or status, can access quality justice that is administered quickly.

“The reality paints a sobering picture. The number of cases pending before the courts has reached critical proportions and we must use all appropriate means to stop it from spiraling out of control. At the Supreme Court, there were over 800 appeals filed in 2014 alone with another 10 appeals filed already in 2015 alone. The court registry is burdened with over 5000 appeals, and the panel of Justices are still hearing appeals filed in 2005.

“As of the third quarter of 2014, there were 38, 307 cases pending in the Federal Courts alone. If one considers the number of cases pending in State High Courts and other courts of record, you will all agree with me that the situation is indeed disturbing and sobering,” Justice Mohammed said.

As a way out, many have argued that a combination of effects on the part of the investigating and prosecuting agencies on the one hand, and the Judiciary, on the other, will help record the desired success in this administration’s resolve to fight corruption.

Justice Mukhtar provided similar argument in 2012 while speaking at the event marking the commencement of 2012/2013 legal year, when she contended that “the administration of justice is not confined to the courts; it encompasses officers of the law and others whose duties are necessary to ensure that the courts function effectively.

“The constitution provides that the Attorney General and Minister of Justice, as the Chief law officer of the federation, has the power to institute, undertake, take-over, continue or discontinue criminal proceedings before the courts of law in Nigeria in respect of offences created under any Act of the National Assembly.

“It therefore, follows that the courts cannot on their own, prosecute criminal cases. There must be the willingness of all prosecuting agencies to prosecute cases brought before our courts, especially high profile cases of corruption and all others.”

The expectation that the nation’s criminal justice system operates effectively to deter, and in most cases punish acts of corruption has led many to suggest the creation of a separate court or tribunal to try corruption cases speedily as is the case with the National Industrial Court (NIC), with exclusive jurisdiction on labour-related disputes and the Election Tribunals, with sole jurisdiction on election disputes.

This suggestion has, however, ignited debate as to whether it was necessary or not the country needs a special court for corruption cases before to address the delay currently associated with the trial of corruption cases.

While those in favour of the creation of a separate court argue that it will aid prompt determination of such cases, those against called for the review of existing court rules and practice procedures as a better and cheaper way out.

Senior lawyers, including Sebastine Hon, Joseph Nwobike, Mahmud Magaji and Ade Adedeji (all Senior Advocates of Nigeria), also expressed divergent views on the issue. While Hon and Magaji are in support of the creation of a separate court to handle corruption cases, Nwobike and Adedeji do not.

Hon supported the creation of separate courts manned by High Court judges or persons of equal standing in law to handle corruption cases. He advocated that such courts should also be superior courts of record.

“If we can have the National Industrial Court, specifically for industrial/employment related matters, the Federal High Court for federal related causes, by and large, and then, we also have the Election Tribunals to handle election matters, there is nothing stopping us from having a specialised court to handle corruption cases.

This is because corruption is hydra-headed and monstrous. It is better we take it serious. And that will, to a very reasonable extent, eradicate the delays experienced when these matters go to the regular courts, which handle other matters. They have the discretion to adjourn cases at will.

“In addition, the Constitution should also be amended to provide timeline within which such criminal trials should be conducted and concluded. This should apply to the trial court and the appellate courts, as is the case with election petitions.

“Now, it is difficult for you, in election matters to exceed the 300 days provided in election matters. You have 180 days allocated to proceedings at the tribunal, 60 days at the Court of Appeal and another 60 days at the Supreme Court. So, what stops us from also having such constitutional arrangement in for corruption matters? I support the call for specialsed courts for corruption cases and the amendment of the Constitution to allow timelines for the trial of corruption cases,” Hon said.

Magaji also said he subscribes to have a separate court or an anti-corruption tribunal. He advocated that such a court or tribunal should be headed by Justices, particularly retired Justices of the Supreme Court.

“If we do not have separate court, there will be the problem of overlapping of jurisdiction. The best thing is for us to create anti-corruption tribunal that will have similar powers with those of the state High Court, and appeals can go from there to the Court of Appeal, and then, the Supreme Court.

“This will allow prompt determination of these cases. For instance, a Federal High Court sitting in Abuja has up to 20 cases on its list every day. The situation is made difficult when there are a number of Senior Advocates in court, whose cases, by tradition, are taken first.

“But when you have a separate court, whose e responsibility is to hear just corruption cases, proceeding in such cases will move fast. We can start by way of tribunals, before the Constitution is amended to allow for the creation of such a specialised court,” Magaji said.

Nwobike argued that the creation of special court for corruption cases will not serve any useful purpose. He contended that while creation of specialised courts for corruption is not prudent, the country should be vary in its quest for speedy justice in order not to sacrifice justice at the altar of speed.

“What I also know is that the various courts, that is the Federal High Court, the Court of Appeal and the Supreme Court have developed practice directions aimed at ensuring that criminal and corruption related cases are speedily determined. That, to me, is sufficient.

“We cannot afford to create special court for everything. Experience has shown that it is the same manpower, the same judges, the same lawyers and the same litigants will attend the specialised court. So, this attitude, responsible for delays in the regular courts, will also affect the specialised court.

“There is no justification for the creation of special courts. What I will suggest is that the various practice directions and others measures to aid speedy administration of justice should be given due attention at all levels.

“We must remember that when we talk about speed in the determination of criminal cases, we have to be very careful so that we do not sacrifice justice at the altar of speed. If we emphasise speed as against justice, the court may end up convicting innocent people and, in the process, let criminals go scot-free. That is not the intention of the law and criminal justice system,”Nwobike said.

Adedeji also disagreed with the argument that the country needs to have a different court to corruption cases. He argued that the country currently has enough courts to dispense justice in most of these cases.

“The problem has to do with abuse of processes by counsel. There is need for effective and more pragmatic rules to ensure that cases are expeditiously determined. So, in my view, it all comes down to abuse of processes. If a specialised court is provided to try some of these cases, we will still have the same problem.

“Essentially, it comes down to deliberate abuse of court processes, coupled with the fact that we need to be more aggressive in ensuring frequent reforms of our rules. In my view, a combination of these processes (preventing process abuse and ensuring frequent reform of court’s rules) will deal with these issues we are complaining about,” Adedeji said.

Despite the lack of consensus yet on the desirability or otherwise of a specialised court for corruption cases, the position remains that the current arrangement needs to be tinkered with for corruption cases to be determined expeditiously.