Prof Itse Sagay (SAN) is a distinguished legal scholar, constitutional lawyer and rights activist. He was Dean, faculties of law at the University of Benin (UNIBEN) and the Obafemi Awolowo University (OAU), Ile-Ife. Sagay chairs the Presidential Advisory Committee Against Corruption (PACAC), a think-tank set up by President Muhammadu Buhari to drive the anti-corruption war. He tells JOSEPH JIBUEZE about PACAC’s activities, plans to establish special corruption courts, plea bargaining, why he is no longer critical of the government, and how to strengthen the Supreme Court.
what does PACAC do?
PACAC is essentially a coordinating agency of the Federal Government. It was established to coordinate the work of all the anti-corruption agencies. It operates in the form of a think- tank, thinking up ideas to promote the fight. There are two specific areas in which it is supposed to operate: intervening in the administration of criminal justice system to make it more effective; and supporting the anti-corruption agencies to make them more effective. The mandate is almost unlimited as far as it has something to do with the anti-corruption struggle. The limitation is in the area of operation. We give advice and provide support, incentives and direction. But we do not arrest, directly investigate or prosecute. We give assistance and promote the work of those who actually do it.
Can you give us some examples of such assistance?
For instance, we have published a manual on prosecution.That manual states in a step-by-step manner how to investigate an offence of corruption, at what stage you can conclude that you have enough evidence, what to look for when you’re investigating, and then when it gets to that stage, in-house committee that will be set up within these agencies involving not only the investigator but also a potential prosecutor, who will direct the investigator as to what to look for – what are the ingredients that constitute the offence, so that the investigation will be directed. The committee will determine as a team that there is sufficient evidence to bring a charge. There is no hurry to bring the charge until there is sufficient evidence.
What have you done in terms of capacity building?
We have trained 160 prosecutors on how to draft charges, so you do not have 150 counts in one case. Reduce the number of charges but make them very effective and to the point. We have also prepared a manual on plea bargaining and another one for judges on effective sentencing. We have held workshop for judges all over the country on how to deal with corruption cases. We also brought in Supreme Court and Court of Appeal judges to go through the same process. We’ve been very busy.
In what other ways do you provide support?
Apart from training and workshops, we are also effectively getting them funds. For instance, the EFCC has a very sophisticated laboratory. So, we’re getting international funding for them to improve the equipment they have and their forensic work generally. We’re trying to do the same thing for other agencies such as the Code of Conduct Bureau. They are not computerised. We’re trying to see how to get funds to computerise their work so that when you go there, with just the touch of a key, all the information about a person will come out. That means you don’t need the large space; it’ll be more efficient and centralised.
What is your reaction to claims that the anti-graft war is selective?
We’ve heard that, but it’s just a distraction. The question is: are you liable or not? If you are not liable, there is nothing anyone can do to successfully embarrass you. The case that is brought against you in the end will be dismissed. So, there is no need for anybody to worry. There’s no point saying it’s one-sided. Even if it is selective, if you are innocent, there is nothing to worry about. What they’re saying in effect is: ‘Yes, we looted, but the other man also looted’. But that is no excuse.
What do you think about calls for special courts for corruption cases?
I think there is a general consensus now that we need a special court. That’s another thing we’ve done which I forgot to mention. We have prepared a bill on a Special Crimes Court. That bill covers not only financial and economic crimes, but narcotics, kidnapping, advance fee fraud, money laundering – about six offences which are sort of related. The bill is ready.
Will the special court be part of the court system?
It’ll be an entirely separate court, separate judges and physically separate locations. There is no mixing of anything. That’s all they will be dealing on, and that will mean that not only will they concentrate, they will have fewer cases to deal with. They will gain experience apart from trainings and workshops we’ll organise for them.
Will that not involve Constitution
amendment?
For this court to come into operation, there has to be a constitution amendment which will carve it out from the other court system and establish it as a court of superior jurisdiction which can exercise all the powers a normal high court can exercise.
Is plea bargaining an option the government is considering?
Plea bargaining is an option which has to be considered in every case of corruption. Previously it could take up to 10 to 11 years to go through a prosecution process; now under the Administration of Criminal Justice Act (ACJA), it may not extend more than a year, but will be quicker if we have a successful plea bargaining process, which does not mean the person will simply return money and walk away. It doesn’t meant that. That is the wrong perception that the public has. There will still be sanction even though money is returned. And the power to determine the terms of the plea bargaining will be exclusively the court’s. You can suggest it to the judge, but you can’t sign an agreement with the accused and hand it over to the judge to pronounce as judgment, no. The judge will approve, amend and determine what the judgment should be.
Is full trial in corruption cases not preferable?
The advantage of plea bargaining is that instead of going through the whole struggle of bringing witnesses, cross-examinations, presenting evidence – the whole process which is quite complicated and lengthy – once the person admits, he may get a lesser sentence or in some cases be convicted of a lesser charge and perhaps in less than a month the case will be disposed of, leaving the government the capacity to do other cases.
The EFCC has been accused of rights abuses. How is this being addressed?
As far as I can see, nobody should worry about that. The laws are very clear, both the normal laws and constitutional law, about the protection of rights of Nigerians. So, if you feel your rights are being abused by the EFCC – usually the only manner that happens is to be kept in detention longer than is constitutionally allowed – you go to court. The judge will have no hesitation in making a pronouncement.
Is long detention justifiable?
Again there is a public misconception about some of these cases of detention. The law now allows the EFCC to arrest somebody and then go to a magistrate’s court for an order detaining the person at least for 14 days to start with, and this can be renewed while investigation is still going on. EFCC is not ready to charge yet, but may think that the person is proving to be an obstruction or an intimidating presence. In other words, his freedom is having a negative impact on investigation, so he can be kept in detention by court order. That is perfectly legitimate. But it’s not permanent. It can be renewed at interval. When it gets to third or so renewal, it cannot be further renewed.
How well do you think judges have complied with the ACJA?
They are still learning and trying to come to terms with it. Unfortunately, quite a number of them are still being influenced by the old law. When they think they’re complying, they’re mixing things up. One common area they’re still making a mistake is when someone brings an application particularly challenging jurisdiction. Some of them still think that they ought to take that application and give a ruling on the spot, which is wrong and contrary to the ACJA. What they should do is to take the application, both the applicant and prosecuting counsel will address the court, the court will note everything down, and without giving a ruling, go on with the substantive corruption matter. At the end of it all, when witnesses had been taken, the judge then gives his ruling on the issue of jurisdiction as well as his judgment. But, many of them are still under the impression that once it’s a matter that has to do with jurisdiction, they will say to themselves: ‘Without me having jurisdiction, I can’t handle this matter, so let me deliver a ruling’. No. They’re not supposed to deliver a ruling. If they do that, they’re breaching the law themselves.
In International Law, can countries be held criminally liable for receiving stolen assets?
That is sentiment. That is not reality. That’s not law at all. If somebody brings in money into another country to invest or to bank, up till now, it’s not really the duty of the receiving country to start investigating the source, unless there’s an obvious red flag which puts it on notice that something is very wrong. If someone brings money into your country, you won’t do anything about it until an issue is raised. I think what we should quarrel with is when this issue is raised and these countries are reluctant to provide assistance to the victim country. That’s when one should blame them. But as things stand, nothing compels them to refuse someone from putting money in their system.
Do you buy the idea that appointments into the appellate courts should not only be from the high courts?
Absolutely! I think there’s too much inbreeding in the judicial system. What we have now, both at the Court of Appeal and Supreme Court, is ‘turn-by-turn’, ‘you’re one year my senior, so when you’re promoted this year, I’ll be promoted next year.’ You get to the Supreme Court, if you’re the last person appointed, you calculate your age, and then calculate the ages of all those above you and how many years they came in before you, then you can determine when you are going to be the Chief Justice of Nigeria. That’s not healthy at all. Innovation, activism, courage and determination to establish a system based on justice rather than technical law – all that is affected. It reduces the capacity and the inclination of a judge to go out of his way to see that what is right is done, that the decision is based on justice rather than obeying some technical rule which will make them safe; rather than going out and making pronouncements which constitute an innovation, promotion and development of law and justice.
Why do you say so?
There is this tendency of all of them always agreeing, because they’ve been bred together and groomed together over such a long time. So, you see seven justices sitting on a case and all seven unanimously agreeing. That’s not natural. It’s because of this inbreeding. And it has affected the quality of judgments, because nobody wants to think out of the box anymore. If you bring some people from outside, they’ll bring their own radical thinking and philosophy, which they will introduce and it will buoy and develop what is already existing there and produce very positive and excellent result. Then we’re going to have situations in which five justices agree and two disagree, or four against and three dissenting judgments. It’s only when that happens that you know that a lot of work has gone into the decision making, not this robot-type of mentality that exists now where everybody has the same mind and takes the same decision. One person does the work and others say I agree. That’s not good for healthy justice.
One argument is that those appointed from ‘outside’ won’t have judging experience …
You don’t need judging experience to be in the appellate courts. All you need is a sense of justice as long as you know the law. A university lecturer, what does he do? He teaches law! He’s the same one who taught the judges in the Supreme Court and Court of Appeal, who are also applying law. Or a Senior Advocate of Nigeria who practises law. What more does he need? He doesn’t need anything, particularly at the appellate level where evidence from witnesses is not taken. All you’re going to do is analyse law and apply it to facts and then give your judgment, of course with a dash of the intention and orientation to make sure that there is justice! That is always number one. ‘This decision I’m going to take, is it based on justice?’ If you do not take that decision and you just go on like a robot, applying one technical law after the other, arriving at a decision which is thoroughly unjust, then of course you’ve wasted the time of the whole judicial system.
What is your response to claims that you were offered this job to stop you from criticising the government?
I’ve never been anti-government. That is wrong. Why should someone set out to be anti-government? I have criticised governments in the past because they took bad policy decisions and also because their orientation was really against the people, particularly Jonathan’s and Obasanjo’s administrations. I criticised them because most of the time, they were anti-people in their decisions, particularly in the last six years under Jonathan where corruption and favouratism and all sorts of negative things developed within the government and nobody cared for the country but for themselves. I was not anti-government; I was against their orientation which was one in self-service and anti-people.
Is this government different?
The present government is one that is out to serve. One, you have a President and a Vice President who have strong antipathy for corruption, who, in fact, I’ll say constitute an epitome of integrity, of uprightness, of honour, and with the added orientation of serving Nigeria and pulling us out of the state of anomie. That’s the orientation. I’m glad to be invited to participate in a world view of that sort where you want to provide service, salvage the country. You want to do it as a service, where you serve the government and not serve yourself. So, it’s the government policy, the character of those in power, their policy and orientation that attracted me. There is no other basis for my service except that I want to contribute to what they’re doing.
