The anti-graft war is very dear to President Muhammadu Buhari. He does not want anything to stand in its way. Last Monday, he charged the judiciary to buckle up in its handling of corruption cases, which he described as slow. This is not the first time the President has hit the judiciary over corruption cases. But is the delay entirely the judiciary’s? ADEBISI ONANUGA reports.
THE judiciary was put on the spot again last Monday by President Muhammadu Buhari who blamed it for the slow pace of corruption cases.
Speaking at a workshop in Abuja on the “Role of the judiciary in the fight against corruption”, organised by the Presidential Advisory Committee Against Corruption in collaboration with the National Judicial Institute (NJI), Commonwealth Secretariat and United Nations Office on Drugs and Crimes (UNODC), the President accused some defence lawyers and prosecutors of delay tactics, which are frustrating his administration’s anti-corruption crusade.
Corruption cases, he said, were not progressing as speedily as they should despite the Administration of Criminal Justice Act (ACJA) 2015. According to him, the courts allow some lawyers to frustrate the reforms introduced in the new law.
Buhari said public expectations were yet to be met by the judiciary because of what he called its toleration of delay tactics by lawyers. According to him, when cases are not concluded, the impression is given that crime pays.
He said an efficient judiciary, whose job is to provide fundamental checks on public institutions, is key to the success of all anti-corruption initiatives.
The President said: “Now, in carrying out its role in the fight against corruption, the judiciary must remain impartial and, most importantly, be seen to be impartial.
“It is incumbent on the judiciary to analyse facts based on the applicable law without prejudice and penchant regarding the case they are dealing with, and without acting in any way that would favour the interests of any of the parties.
“Where judicial corruption occurs, the damage can be pervasive and extremely difficult to reverse. Such situation undermines citizens’ morale, violates their human rights, harms national development and depletes the quality of governance.”
Buhari urged judges to hear cases without any external pressure either from the state, or by their hierarchical superiors, stakeholders or interest groups.
“The Judiciary must take steps to ensure that it is not seen as partisan. Hence, judicial officers and other members of this profession must always demonstrate manifest integrity,’’ he added.
The President urged the judiciary to be in the forefront of efforts to develop rights based jurisprudence as an element in the multi-disciplinary approach advocated in the fight against corruption, insisting that it has a role to play in the fight against corruption by enforcing the laws and ensuring that criminal justice administration is not delayed.
“The judiciary must fight delay of cases in court as well as fight corruption in its own ranks, perceived or otherwise. We expect to see less tolerance for delay tactics used by defense lawyers or even the prosecution in taking cases to conclusion,’’ he said.
Chief Justice of Nigeria (CJN), Justice Mahmud Mohammed, said the judiciary would no longer dismiss corruption cases against high-profile persons without trial.
Justice Mohammed added that the judiciary had stopped giving verdicts that exonerated high-profile citizens accused of corruption without undergoing trial.
Stakeholders, however, viewed the President’s claim in a different light. While some believe that judges are doing their best to reduce delays, some argued that lawyers are to be held liable because, when they are boxed into a corner by prosecutors, they deploy various tactics, including filing of frivolous applications and feigning ill health to delay matters in court. There are also those who put the blame on investigating and prosecution agencies, who are in the habit of arresting a suspect before investigations are conducted. To this group, if the prosecutors did their homework, trial will be concluded within record time.
Others, however, argued that the nation’s criminal laws contain a lot of loop holes, which counsels often employ to their advantage to delay proceedings in court. They listed some of them to include: The Corrupt Practices and Other Related Offences Act Cap C31, Laws of the Federation of Nigeria 2004; The Economic and Financial Crimes Commission Act 2002 (LFN 2004); The Money laundering Act; The Advanced Fee Fraud and Other Related Offences Act; The Failed Banks (Recovery of Debt and Financial Malpractices in Banks) Act; The Banks and other Financial Institutions Act; Miscellaneous Offences Act and any other law or regulation relating to economic and financial crimes including the Criminal Code and Penal Code.
But a retired judge of the High Court of Lagos State, Justice Ebenezer Adebajo, argued that the President should not blame judges for delays in prosecuting criminal matters. “There is no fault in the judiciary. The judiciary can only interfere in matters that are brought before it. In our system of administration of justice, the judge has a limited space for pro-activity. He can only be pro-active to some extent, not in all extent. It is only the issue that is brought before the court that the judge can decide on”, he said.
Justice Adebajo remarked that any judge will do his best to give everybody a fair chance, noting: “If a lawyer says I have headache, I would not be coming to court and he has written a polite letter, the judge would just say, well, may be the best thing is to allow him to have the day off and treat everything on the same level.”
Justice Adebajo said judges have to keep a balance between their work and be seen not to be biased, emphasising that if they take any harsh step, the next thing is accusation of bias.
He argued that delays in administration of justice weighed heavily on ethics and stressed that, that should be the work of the Nigerian Bar Association (NBA). “When lawyers purposely delay cases in court, I think it is a matter of professional ethics. It is not for the judge. If as a judge, I find that the lawyer is delaying the case in my court, what am I to do? In Britain, the judge will write to the Bar Association and that will lead to a disciplinary action. But in Nigeria, where do we write to? So, what do you do? The bar association should be the body that is maintaining ethical discipline among the lawyers. But there is no ethical discipline in Nigeria”, Justice Adebajo lamented.
But how can the judiciary redeem itself from the negative tag of frustrating the fight against corruption? How can the courts ensure speedier and effective prosecution of suspects? Will the establishment of special court rid the country of corruption?
Lawyers react
Lawyers, who reacted to the speech of President Buhari included Constitutional lawyer and author, Sebastine Hon (SAN), a member of the Ogun State Judiciary Service Commission, Abayomi Omoyinmi, former Welfare Secretary, NBA Ikeja Branch, Samson Omodara, Richard Komolafe and Emeka Nwadioke.
According to Hon, judges handling corruption related matters should always be firm in their resolve to uphold the constitutional mandate in Section 36(4) of the Constitution that criminal trials should be concluded within a reasonable time. He said no amount of dilatory tactics by defense lawyers should be allowed to rubbish this constitutional mandate.
Omoyinmi said the president may be right about the fact that some lawyers used delay tactics in the ongoing corruption cases, which consequently led to the delay in conclusion of such matters in spite of ACJL. According to him, the ACJL is a new law with the purpose of eradicating some of the delays occasioned in criminal matters . He believed with time the delay will come to past.
Omodara, however, was not totally in agreement with the President that defense Lawyers are the cogs in the wheel of justice in prosecuting alleged corrupt cases, no matter how ostensible the alleged. Omodara argued that in corrupt cases, the accused (defendants) are still presumed innocent and are constitutionally entitled to defense. He said it is an axiom in legal parlance not to allow the conviction of an innocent in all criminal trials. He said: “The prosecution should do its home work in the investigations and the judges should also do justice ultimately in disallowing frivolous interlocutory applications in tandem with the Administration of Criminal Justice Act”.
Komolafe said the fact that not much success has been recorded in the prosecution of corruption cases is a pointer that the nation’s administration of criminal justice is in a comatose. To him, the structural challenges mitigating effective prosecution of corruption cases have to do with over centralized of our judicature system. He said the nation’s justice system need restructuring, which mean devolving judicial authority from centre to states. He believed this will have a positive impact on the speed with which corruption cases will be tried and justice will be attained. He, however, supported the establishment of a special court that is well equipped, to handle corruption cases, coupled with special and well trained prosecutor.
But for Nwadioke, it is not all a gloomy picture contrary to what the president painted in view of reports that some accused persons now negotiate plea bargain deals in some matters that commenced a few weeks ago. That, to him, is a reflection of the progress in the prosecution of corruption matters; that the work of the Presidential Advisory Committee on Corruption was yielding fruit. He said it is doubtful whether the Executive has any moral authority to lampoon the Judiciary in the light of consistently declining funding of that long-suffering arm of government, adding that this is where the Executive can also help the process through adequate funding of the Judiciary.
He also noted that some judges tend to indulge counsels almost to an ingratiating extent, invariably leading to delays. Firmness and fairness must remain the watchwords. He said Judges’ hands may be tied if the delay tactics by defense counsel are fed by statutes.
Way out
Hon said the advantages of establishing special courts are numerous. “First, trial of suspects will be more consistent and timely. Secondly, both Judges and lawyers involved in practice before those courts will acquire specialist skills that are not available generally. Thirdly, decisions handed down by those courts, given that they will be speedily handed down, will act as crucial guides to the anti-corruption and other security agencies in their investigation of corruption and related cases,” he said.
He said beyond the establishment of such courts, the Constitution should be amended to provide timelines for the beginning and conclusion of criminal trials, especially corruption matters. Similar amendments have successfully been introduced for the hearing and determination of electoral matters.
Another fundamental amendment to be introduced in the Constitution, he said, is the strict prohibition of stay of proceedings in corruption trials. He noted that a similar innovative step was included in the 2010 Electoral Act; and this again worked well.
“I wish to add that even without amending the Constitution or the various State Laws; existing courts can be designated for this purpose-to avoid the tortuous journey of constitutional or statutory amendment. A good example of this is Lagos State, where some Judges have been specifically designated to handle criminal matters,” he said.
Omoyinmi supported the establishment of a special court for corruption cases. “I honestly will support the creation of special court for all manner of criminal cases not only corruption matters, just like what operates in the United Kingdom (UK) where the crown courts are special courts for criminal matters and also in the court of appeal, criminal division.
“Once the courts are established in this form couple with the ACJL, I think we would have a speedier and effective prosecution of not only corruption cases, but other criminal matters in our courts,” he said.
Nwadioke warned that “with the president’s continued chastising, the judiciary may unwittingly put judges under undue pressure as to occasion miscarriage of justice.”
He argued that courts can ensure speedier and more effective prosecution of cases with judges taking effectual control of their courts. He said, however, that delays that are occasioned by arguing trite aspects of law through frivolous applications must be sanctioned to act as deterrent to others. This may yet be the major handicap of the ACJL. The NBA, he said, must be alive to its duties in this regard, and must not be seen to shield such defaulters.
He remarked that the prosecuting agencies at times lacked basic tools for the humongous task at hand, while prosecutors were burdened. He said if more time is spent in proper investigation and in developing a well-knit prosecution strategy, less time will be deployed in the courts.
Nwadioke, however, is doubtful that special courts are what the present administration needs to speedily prosecute corruption cases in view of established commercial courts, which deal with similar cases. He, however, canvassed the need for specialised judges that are well versed in the nuances of corruption cases. “Accordingly, dedicated judges with specialist training through refresher courses may just get the job done,” he argued.
