Tag: Justice

JOSEPH JIBUEZE, in this concluding part of his series on how justice tilts in favour of the rich, highlights government’s efforts to reversing the situation through the new Federal Sentencing Guidelines and the Plea Bargain Manual. 

Justice Ademola and his wife Olabowale, in a 15-count charge filed against them by the Federal Government, were accused of “corruptly” receiving N248, 101,300 and $520, 000 as gratifications from law firms and others between 2013 and this year.
In counts one and two, they were accused of “criminal conspiracy to receive and/or obtain gratification contrary to sections 8(1) and 26(1) (c) of the Independent Corrupt Practices Commission Act, 2011 and punishable under Sections 8(1) (iii) of the same law”.
The wife was accused in counts four to seven of “receiving gratification for other person, contrary to Section 8 of the Independent Corrupt Practices and other Related Offences Commission Act 2011 and punishable under the same law.”
In counts eight to 15, Justice Ademola was accused of receiving a total of N248,101,300 and $520,000 as gratifications other than his “lawful remuneration, a motive or reward for doing an official act and/or in the exercise of your official functions as judge of the Federal High Court.”
Justice Ngwuta was arraigned for allegedly transferring N505 million “denominated in naira and United States (U.S.) dollars” to a building contractor, Nwamba Linus Chukwuebuka, between January and May 2016. The N505 million was alleged to be part of proceeds of Ngwuta’s “unlawful” activities.
He was also accused of instructing a relative to remove some exotic cars from his house in Ebonyi while he was under investigation in violation of the provisions of Section 18(1)(b) of the EFCC Act.
He was also accused of retaining huge amounts of money in local and foreign currencies which were alleged to be proceeds of his unlawful act contrary to the provisions of the Money Laundering Act. The prosecution also accused Ngwuta of concealing the origin of sums of money which were said to have been found at his home during the raid on his house by the operatives of the Department of State Services (DSS) between October 7 and 8.
For Justice Okoro, who is yet to be charged, his claim that there was a bid to influence his judgment in a high profile political confirmed the belief that justice was for sale.
Justice Okoro alleged that Transport Minister Rotimi Amaechi and All Progressives Congress (APC) governorship candidate in Akwa Ibom State Umana Umana, tried on separate occasions to bribe him in order for him to invalidate the outcome of the 2015 governorship election in Akwa Ibom.
In a letter to the Chief Justice of Nigeria (CJN), the justice wrote: “Mr. Amaechi also said that he had already visited you (CJN) and that you had agreed to make me a member of the panel that would hear the appeals. He further told me that Mr. Umana would be paying me millions of naira monthly if I co-operated with them.” Amaechi and Umana denied the allegations.
Justice Rita Ofili-Ajumogobia was also arraigned for allegedly collecting N5 million gratification from a Senior Advocate of Nigeria (SAN), Chief Godwin Obla. She had earlier been barred from elevation to the appellate court for gross misconduct.
She and Obla were arraigned on a 30-count charge at the Lagos High Court for allegedly conspiring to pervert the course of justice on May 21. EFCC said Obla transferred N5 million to Nigel & Colive Ltd, a company the judge is a sole signatory to. The judge and Obla pleaded not guilty.

Experts decry unjust
system, proffer solutions

Otteh, who has spent years fighting injustices in the judiciary, including illegal detentions, decried a system that insulates the rich from prison.
He said: “There is no question that the criminal justice system, as we practise it now, is institutionally biased against poor and under-privileged people. In fact, it is often a snare to peaceful, ordinary people, right from the point where the system begins to run, to the point it terminates.
“Poor people are likely to be those picked up arbitrarily from the streets, and extorted of bail money, or face risks of trumped up charges of armed conspiracies and robberies.
Otteh also believes the poor get the rough end verdicts.
He said: “The poor too, are very likely to receive harsher sentences in court than rich people. A judge, who is currently being prosecuted by the EFCC, once sentenced a first time convict, a cannabis dealer Lawrence Alagu, a homeless man who lived under a Lagos bridge, to life imprisonment! Meanwhile, a former state governor who was accused of looting billions of naira got away with a fine after a plea bargain.
“The Nigerian criminal justice system is in very many respects an unequal, overtly biased system, that often suffocates poor people when they are processed through it. The rich can manipulate that system to good advantage.”
Ridding the criminal justice system of corruption, experts say, is key. Otteh called for “audit” of judges lifestyle. Listing tasks before the CJN, he said: “The Chief Justice should further ensure that complaints of misconduct against judges trigger investigations that explore whether elements of criminal behaviour are present within, or are tie in with the alleged misconduct; where such elements are present, criminal investigations can be launched by crime agencies.
“The NJC should also develop a financial disclosure reporting system (used in some jurisdictions where all extra-judicial payments to judges are self-reported, and judges submit periodic financial disclosure reports) and develop a lifestyle-triggered audit mechanism for judges where living standards appear unmatched by wages as was done in Kenya.”
A former Nigerian Bar Association (NBA) president Augustine Alegeh (SAN), said: “It is indeed very worrisome that certain judicial officers still engage in rendering judgments for a fee. Instances abound where judicial officers have resorted to turning the law on its head and making pronouncements which are at variance with the provisions of the law.
“A few others have formed the bad habit of ignoring judicial precedents even when such authorities are brought to their attention by counsel. This trend is quite injurious and erodes the confidence reposed in the judiciary by the society.”
A former judge of the Ogun State High Court, Justice Babasola Ogunade, believes judges found guilty of corruption should not be spared.
His words: “I say that any judge who is adjudged to have taken bribe should be sent to jail. They should be sent to jail like any other person and dealt with as criminals because these days, I don’t see any reason for it. The service condition has improved and some states really went out of their way to make them (judges) really comfortable.
“So, why should any judge start taking bribe. What for? Except you are a greedy man or you have no fear of God. You take bribe, a person is wrong and you say he is right. Remember you will appear before a judge (God) where you don’t need any advocate, at the end of your days on earth, you won’t need an advocate before Him.”
Revered professor of International Law and Jurisprudence, Akin Oyebode, said judges occupy elevated social positions such that nothing less than uprightness is expected of them. Those who deviate, he said, must not be spared.
He said: “If you look at the judicial oath when you appoint somebody to the bench, he swears to do justice to all manners of person without fears, affection or ill-will. They even have the power to sentence persons to death. They are like representatives of God on earth.
“If you look at the architecture of the courtroom, the judge’s position is higher than that of every other person in the court. They are select persons. But when they fall short of expectations of their high office, they are not spared. They drink the hemlock or they are burnt at the stake. It’s as simple as that.
“Corruption is pervasive in Nigeria and it affects all facets of human endeavour. So, in the case of judges, if they are found to have committed acts of malfeasance or acts unbecoming of their high office, we burn them at the stakes.”
Lagos Court of Arbitration (LCA) President, Mr Yemi Candide-Johnson (SAN), shares Justice Ogunade’s and Oyebode’s views.
“I believe that there is nothing uglier or more dangerous than a corrupt judge. A judge accepts an oath to administer justice without fear or favour, it is a trust and practically a holy obligation. Corruption at this level poisons public confidence in the entire system of government and threatens the peace and stability of our entire community.
“It is shameful and a disgrace to the memory of generations who built the Nigerian legal profession. It is vital that examples are made and I would like to see corrupt judges shackled and on their way to long prison sentences,” he said.
There is also need for judges to stop indulging the rich and powerful. Executive Secretary of the Presidential Committee against Corruption (PACAC), Prof Bolaji Owasanoye, blamed the persistent delay in high profile criminal trials on some judges court.
He argued that where judges strictly comply with ACJA, high profile cases would no longer sit in the court’s docket for years.
Owasanoye said: “If you do a thorough analysis of all the high profile cases that are hanging in court, they are not hanging because investigation was poor. It is because the suspects are manipulating the court system. We should understand that the reason corruption fight is slow is because of the high tolerance of the courts of the shenanigans of lawyers.
“Once the judges stamp their foot and say: ‘I will not entertain an adjournment, this case must proceed,’ you will see changes,” Owasanoye said.

Reforms urgently needed

There is no doubt that the judiciary needs urgent reforms, especially in its regulatory policies. Analysts believe that a clear-cut regulatory policy will limit the discretion of individuals and agencies, or otherwise compel certain types of behaviour. Experts say policies are generally best applied when good behaviour can be easily defined and bad behaviour easily regulated and punished.

Procedure

The current rules of procedure, lawyers say, dwell too much on technicalities that are exploited by the rich and powerful. They must be reviewed. Rather than argue the substance of a case, lawyers spend time on arguments over due adherence to procedure, wasting precious time.
A good case can also be rendered invalid if certain motions were served without a court’s leave, or certain documents were not signed, among others. This is an area requiring a clear-cut policy guideline.
“Nigerian law is excessively and destructively procedural. What it reminds you is 18th, 19th Century jurisprudence. There is no way we can make progress with a law that is as procedural as we have,” Prof Fidelis Oditah (SAN, QC) said.

Sort out jurisdictional logjam

The case law, based on judicial decisions, provides that a court’s jurisdiction can be challenged at any stage during a proceeding. This, experts say, is subject to abuse and constitutes a clog in the wheel of justice.
“The issue of jurisdiction can be raised at any stage. You see lawyers arguing that it is the livewire of a case and nothing can be built on nothing, in a case that is at an advanced stage. How can you curb corruption when you have built up such obstacles?” Oditah asked.

Improve case management

An overly full docket is major cause of delay. Some judges have tens of cases listed for a day. Sometimes, cases are adjourned because the list could not be exhausted.
It is also not unusual to see a judge asking a prosecutor during a trial to hurry up or to conclude so that other cases could be heard. It is easy for judges to adjourn cases involving “poor” criminal suspects than high profile cases.

Review cost regime

Legal observers believe there should be a policy on the award of cost. To them, a situation where N5, 000 cost is awarded for a case that has lasted for over a year is unacceptable. The ACJA also provides for punitive cost where a party delays trial through dilatory tactics.
In some other jurisdictions, an application for costs will need to clearly demonstrate how any alleged unreasonable behaviour has resulted in unnecessary or wasted expense. This could be the expense of the entire court case or appeal.
Experts say costs ought to include time spent by litigants and counsel, travel expenses, the use of consultants to provide detailed technical advice, expert and other witnesses.
According to Duhaime’s Law Dictionary, cost is defined as “a court order that the losing party in litigation must pay the successful party’s expenses plus an additional allowance, the latter as a contribution towards the winner’s legal fees”.
A senior advocate, Mr Kunle Ogunba, said: “The cost that is being awarded, such as N2, 000 or N5, 000 in this day and age is not realistic. With all due respect, some of the judges are a bit timid. It’s only a few judges that will award N100,000 against a counsel that frustrates a case.
“We can come up with a strategy in which N1 million is awarded for frivolous adjournments. And if you lose a case in the long run, what costs are awarded? You hear N20, 000 for a case that has taken about five years. There should be a way to penalise people who deliberately abuse the system by filing frivolous cases. There should be a guideline.
“It can be called Cost Implementation Rules or Cost Awarding Process and Rules. The cost awarding system is obsolete. It is not in tandem with reality.”

Appointment process

Legal experts have harped on the need to make judges’ appointment transparent rather than shrouding the process in secrecy. A professor of law, Oba Nsugbe (QC, SAN), said: “We need to make greater effort to completely demystify the system of judicial appointments in Nigeria from the beginning to the end…Uncovering information about how to go about it, upcoming vacancies, criteria for appointment, and the process of appointment was painstakingly difficult.”
The National Judicial Council (NJC), in 2014, released guidelines that provide for call for expression of interest by suitable candidates, who wish to be appointed judges, including an advertorial to be placed on the website of state judicial service commissions, notice boards of courts and at NBA branches. But AJ alleged that the appointment of 25 new Federal High Court judges did not follow the guidelines.
“This rule was clearly not followed in the current recruitment process. Our investigation revealed that no such call for expression of interest by suitable candidates was made,” the group said.
Erring lawyers
Experts say there is the need to strengthen the disciplinary procedure. Chief Anthony Idigbe (SAN), believes there should be an external regulator for the profession. According to him, self-regulation has failed.
“We need an independent regulator for the legal profession,” he said, while urging the judiciary “to fight for” statutory regulation. Idigbe argued that the Legal Practitioners Disciplinary Committee (LPDC), for instance, may not be independent enough to impose sanctions on highly-placed lawyers because it is made up of jurists who may have vested interests or against whom a complaint is made.
NBA President Abubakar Mahmoud has however vowed to address the issue of indiscipline among lawyers.
He said: “We need more rigorous and effective framework for establishing professional and ethical standards, reining in erring unethical lawyers and rebuilding confidence in the legal profession.”

The NJC

The fact that the CJN also heads the NJC has been criticised. Justice Salami recommended splitting the two positions to avoid abuse. He said: “It is only the NJC that has a serving head of the institution as its head and who has amply demonstrated how the arrangement could be thoroughly abused.
“In the circumstance, serious consideration should be given to separating the two positions as is the case with the police and the civil service.”
According to him, it is difficult to ease out a CJN who fouls his seat while doubling as chairman of the Council.
“The patronage the non-statutory members derive from him, such as appointment into the council and extension of their tenure makes them vulnerable and feel obliged to him and not to the body they are appointed to serve and are invariably prepared to kowtow,” Justice Salami said.

Interlocutory Appeals

Experts believe interlocutory appeals should terminate at the Court of Appeal. Vice President Yemi Osinbajo, a senior advocate, said in a paper: “There is need also to be a clear and definitive intervention by the Supreme Court on notorious and recondite issues frequently deployed to delay trials.
“Issues of jurisdiction require one clear Supreme Court decision, which lays down the principles and the law. Some disciplinary actions may be required with the full backing of our courts to check counsels who in the face of clear authorities delay trials by raising such issues.”

Wanted: Stronger laws

Legal experts have called for stiffer laws to that give no room for discretions that are in favour of the rich. Chief E. L. Akpofure (SAN), said: “You cannot lay the blame on the table of the judges; it is a matter of what the law says.
“If the law has given a particular window limit within which they can impose the sentence, they cannot go outside that window. The best that can be done is the amendment of that particular law by the National Assembly. It is not the fault of their lordships; it’s not at all.”
Another SAN, Adeyinka Olumide-Fusika, said: “The judges are guided by the law, not by the sentiment of the public. The law that creates an offence prescribes the appropriate punishment for it.
“Normally, the law, in prescribing punishment, will give certain maximum number of years in jail or a jail term of not less than certain number of years; so, the judge has a leeway between the minimum and the maximum punishment. The members of the public are angry and they want the person lynched but the judge will have to apply the law.”
Ogunode recommended: “There is the need for criminal justice administration database and the establishment of Fast Track Courts that will utilise special rules of procedure in justice delivery system in the country. Perhaps, due to the imperative of criminal justice reforms, the Federal Government should set up a Criminal Law Reform Committee to embark on holistic review of the criminal justice administration in the country.
“The subversion of the instrument of justice by the rich and connected individuals in Nigeria at the expense of the less-privileged Nigerians, who are rotting away in the many poorly-funded Nigeria prisons mostly for crimes they knew nothing about must be urgently looked into and necessary measures taken to allow for equity and fairness in the dispensing of justice in the country.
“The judiciary as expected everywhere across the world is and always expected to stand out as the conscience of the society and the hope of the common man.”

Towards uniformity
in verdicts

Adetola-Kazeem believes having a clearly defined sentencing guideline will ensure that everyone gets the same terms of imprisonment upon conviction.
“A way out is to have a clearly defined sentencing guideline which will be strictly followed irrespective of the social standing of the accused person.
“There should also be in place clear plea bargaining regulation which will be applicable to all irrespective of financial or social standing,” he said.
Already, PACAC, Federal Government’s anti-corruption think-tank, has Launched Federal Sentencing Guidelines for Corruption and Other Related Economic Offences. It also produced the Plea Manual.
The Sentencing Guideline states that a sentence must be proportionate to the seriousness of the offence, which is determinable by (a) its nature; (b) quantum of punishment specified by the legislature for the offence; (c) degree of culpability of the offender; and (d) harm occasioned.
It adds: “A sentence imposed for an offence shall be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”
According to the guidelines, once one’s culpability is determined, the judge must consider whether the offender: (a) had the intention to cause harm when an offence is planned; (b) was reckless as to whether harm is caused; (c) had knowledge of the specific risks entailed by his actions even though he does not intend to cause the harm that results; or (d) was guilty of negligence.
In sentencing, the judge will consider the following: (a) motivation for the offence especially where motivation is expectation of substantial financial, commercial or political gain; and (b) whether the offence was planned or spontaneous and the sophistication of the planning, if any.
The judge will also consider (c) whether the offender abused a position of public trust or significant responsibility; (d) whether the offender played a leading or peripheral role in the offending; (e) whether the offender involved others in the offending through undue pressure and influence; (f) whether the offender intended the corruption (directly or indirectly) of a senior official performing a public function or of a law enforcement officer; or (g) whether offending was endemic activity taking place over sustained period of time;
A judge is also to consider the harm occasioned by the crime in handing out a sentence. According to the guidelines, in assessing harm arising from an offence, the court shall consider: (a) whether there was actual harm or there was only a risk of harm; (b) whether or not such harm is done to an individual person or to the community, provided that where only a risk of harm is present, it shall not be relevant that harm is not actually suffered by any individual or the community.
The guidelines provides that a court sentencing for corruption and related economic offences shall have the power to order restitution and compensation as required by the circumstances of the case.
A judge is also to consider aggravating factors. The guidelines says: “The following shall be treated aggravating factors: (a) the offender, in committing the offence, abused a position of trust or authority or significant responsibility; (b) the offence results in personal benefit to the offender; (c) in committing the offence, the offender took advantage of the high regard in which he was held in the community.”
The guildelines provides an eight-step matrix of the sentencing process. The first step is determining the offence category in terms of high, medium or lesser culpability. “Harm is assessed in relation to any impact caused by the offending (whether to identifiable victims or in a wider context) and the actual or intended gain to the offender,” it says.
It further provides that for high culpability offences, the starting point is 20 years where the custody is between 18-20 years. For medium culpability offences, the starting point is 18 years custody while less culpability is 15 years imprisonment.
PACAC, however, noted that some fines are not commensurate with the offences, urging judges to exercise discretion.
It said: “It is important to ensure that the laws creating the relevant offences adequately provide for financial penalties that are commensurate to the level of offences. Unfortunately, this is not the case presently.
“The amounts imposed by legislation as fines for offences and the scheme of monetary jurisdiction for the lower courts make it difficult for the courts to adequately sentence using the fine.
“The inadequate provisions relating to other ancillary financial measures limit the prospect for effectively using these measures.”

‘Plea bargaining
in public interest’

The Plea Bargain Manual, also produced by PACAC, seeks to ensure that high profile criminals do not just get “a slap on the wrist”.
PACAC says: “Not every criminal case should be prosecuted to finality through a trial if it can be resolved by alternative means. These guidelines set out the procedure by which a prosecutor may conduct discussions with a suspect or defendant or their legal representative. It is also to serve as a guide to all presiding judges who are presented with plea bargain agreements.
“The aim of plea-bargaining is usually for the defendant to enter into an arrangement or plead guilty in exchange for concessions by the prosecution, which may take the form of the offer of a plea by the defendant to some of the charges, a different offence or less serious charge or to one of multiple charges.
“Hence, these guidelines are to ensure that when decisions are to be considered or made about alternative means of disposing a case, those decisions will have integrity, accountability, credibility and transparency embedded in them.”
According to the manual, plea bargain must be based on the core principles of transparency, accountability, integrity, consistency, predictability and credibility.
The procedures followed should command public and judicial confidence; that any agreement reached is reasonable, fair and just; that there are safeguards to ensure that defendants are not under improper pressure to make admissions; and that there are proper records of discussions that have taken place.
The manual states that a corrupt person who pleads guilty must forfeit all they stole.
“Consideration of a plea bargain or alternative method of disposal must be premised on the suspect or defendant forfeiting all the proceeds of his crime and/or all property not reasonably account for as been acquired by legitimate means.
“Prosecutors shall only enter plea bargain or alternative method of disposal agreements in the public interest of delivering justice and never for the purpose of reducing punitive measures on the accused.”

‘All hands must be on deck’

A former NBA President and senior advocate, Chief Wole Olanipekun, said all hands must be on deck to ensure the criminal justice system functions effectively. He, however, does not believe any law is designed to favour the rich.
He said: “Any law or legislation or, if you like, call it statute should be uniformly applied and enforced, without any discrimination between the rich and the poor. To my mind, I’ve not seen any of the criminal legislations in Nigeria that appears skewed in favour of the rich, against the poor.
“Anyone who holds a contrary view should bring or point out specific laws or penal codes to support his contention. The wordings of most criminal legislations in Nigeria start with: ‘any person who …’; and the punishment section is to the effect that ‘… He will be liable on conviction …’ Where then does the discrimination arise?
“To my mind, most criminal legislations, particularly those in relation to corruption and public office holders are even directed against the rich and not the poor.
“Rather than faking any imaginary discrimination, I think attention should be focused on how to make the criminal justice system work; and in this regard, all hands must be on deck, starting from the investigators who have to do a thorough job, through to the prosecutors who must be thorough bred professionals.”
Olanipekun chided those he said play to the gallery and only entertain the public rather than assisting the courts to arrive at the justice of criminal trials.
He also rose in defence of judges, saying some of them are blamed even when they follow the law.
“We expect the judges to perform magic from these dirty and sardine parked demarcations labelled courtrooms in Nigeria? What of cases which should ordinarily and professionally not proceed to criminal trial but are being fancifully and loudly pursued because a political point must be willy-nilly scored from prosecution, and if the unfortunate accused is eventually discharged and acquitted for lack of evidence, we then shout blue murder against the judge.
“We must make up our mind whether in our quest to attain justice in the criminal sector, we are ready to keep on confusing prosecution with persecution, whether in some cases or at all.
“Above all other considerations, our judges must be above board, and under no condition or circumstance should any of them dance to the tune or succumb to the dictates of either the state that is prosecuting, or to the defence.
“Aligned to this is the imperative that neither the prosecution nor the defence should dictate or influence any particular judex who sits on, or handles any criminal matter. On no account should we, either by act of commission or omission, punish and convict any innocent person through the instrumentality of mob or media trial.
“Rather, we should stick to the agelong principle guiding and regulating criminal trials – that it’s better for 99 assumed guilty persons to be set free if the cases against them aren’t proven beyond reasonable doubt, than to allow one innocent person to be unjustly convicted.”

In Nigeria, the law applies differently to the rich and the poor. The noble idea of equality before the law is hardly a reality. From the pre-trial state to judgment, everything works against the poor. JOSEPH JIBUEZE examines how Nigeria’s criminal justice system favours the rich and the migthy to the detriment of the poor.

Nigeria’s criminal justice system is full of contradictions. It is as if the law applies differently to the rich and the poor contrary to the principle of equality before the law. If strictly applied, all citizens, no matter how highly placed, are subject to the same laws of justice.
The 1999 Constitution recognises the supremacy of the law. Section 1 (1) says: “This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.”
However, due to a corrupt criminal justice system, a citizen who has no money to ‘buy’ justice, or not well-connected, may suffer behind bars for crimes he may not have committed. The rich would commit the same offence and walk the streets free.
This state of affairs cuts across the entire system of law enforcement that is directly involved in apprehending, prosecuting, defending, sentencing and punishing those who are suspected of or convicted of criminal offences.

The poor and pre-trial stage

What has been termed “the Nigerian factor”, a euphemism for corruption, ensures that nothing is done right. This seems to have become the accepted norm in contemporary Nigeria where those with money, power and connections get what they want. The “Nigerian factor” is seen as a weapon through which justice can be manipulated to suit individuals.
The criminal justice system works against the poor from the point of arrest by security agencies. According to a university don and social scientist, Sunday Ogunode, the police are especially culpable for giving preferential treatment to the rich and powerful suspects.
When a complaint is lodged at a police station, the seriousness accorded the complaint depends on who the complainant is. If it involves a rich person, or a member of the elite, the swiftness with which investigators swing into action is usually different from the treatment given to a complaint by an indigent person. An ‘ordinary’ citizen may never be attended to.
Sometimes, whether a complaint is treated depends on the complainant’s ability to ‘mobilise’ the officers with money, or provide funds for fueling the patrol vehicle. Where a complainant is either so poor or unwilling to part with any reasonable sum of money, investigation may never be initiated.
Where an arrest is made, every suspect ought to be presumed innocent until proven guilty. It is for this reason that there is provision for bail, which ought to be free.
However, many, who are not able to afford certain amounts of money for bail are kept in unhealthy detention facilities at police stations. Only those who can afford to buy ‘bail’ are allowed to go home. This is in violation of Section 35 (4) of the 1999 Constitution which states: “Any person who is arrested or detained…shall be brought before a court of law within a reasonable time.”
Section 35 (4) (a) provides that a person who commits a capital offence and therefore not entitled to bail, must not remain in custody for more than two months, and must be released unconditionally if not charged to court.
For non-capital offences, Section 5 (a) provides that a person must not be detained for more than 24 hours where there is a court of competent jurisdiction within a radius of 40 kilometers. However, these provisions, in most cases, are observed in the breach.
In some police stations, bail ranges from N2,000 to N10,000 or more, depending on the gravity of the alleged offence and the willingness of the suspect or his relations to pay.
A former student unionist and executive director of a non-governmental organisation, African Network on Environment and Economic Justice (ANEEJ), Revd David Ugolor, was detained in connection with the murder of former Edo Governor Adams Aliyu Oshiomhole’s Principal Private Secretary, the late Comrade Olaitan Oyerinde.
In detention, he had a raw experience of what the poor go through in the hands of law enforcers. Ugolor was fortunate to be charged to court because he could afford a lawyer. He was eventually acquitted.
He said: “It is almost impossible to get justice in Nigeria. I am saying this because after the court acquitted and discharged me, after the Ministry of Justice found me not involved and even after the court awarded me cost, the police, in their usual tradition of not admitting their errors insisted on proceeding with their allegation.
“You can imagine a poor tax payer in Nigeria fighting the police, an institution, with all their resources and budget, with which they can afford to delay the wheel of justice. The High Court awarded me the cost of N5 million for my illegal detention. The police went to the Appeal Court. The Appeal Court ruled unanimously that they should deposit the N5 million first. Now, they have gone to the Supreme Court.
“Today in Nigeria, almost 60-70 per cent of Nigerians live below one dollar a day. You can imagine what it means if it was a poor Nigerian who has no means of support that found himself in my situation. How could he have survived? What it means is that about 60-70 per cent of Nigerians that are not in my position would not be able to demand justice. This means justice is for sale in the country.
“In reality, it is only a few, less than one per cent of Nigerians that could actually secure justice. Otherwise, where do you think a poor man would get the money to go to the extent of the Supreme Court, all because of illegal detention cost of N5 million that has just been awarded?
“This is not good for Nigeria. Importantly too, it means that with the way the Nigerian justice system is structured, over 60-70 per cent of Nigerians do not have access to justice. Compare their situation to that of the politicians—the rich politicians, the rich civil servants and others, who can pursue justice because they can contract the services of Senior Advocates of Nigeria (SANs). That, for instance, is why the police can afford to trample on the rights of common citizens and go scot-free.”
There are also situations where a complainant becomes the suspect. This happens where the suspect is wealthier than the complainant and is able to buy the police over. The pretrial process, it appears, works mainly against the poor.

Flawed trial process

The trial process seems to work against the poor. Once a rich person is charged to court, they hire ‘smart’ lawyers who instantly file “preliminary objections” to challenge the charge. In several instances, when a court dismisses such objections, an appeal follows.
A former Lagos Branch chairman of the Nigerian Bar Association (NBA), Mr Alex Muoka, said: “The criminal justice system appears to favour the rich. It is wealthy criminal defendants who can afford the hefty fees of brilliant defence attorneys or exploit loopholes in the law and get their clients off the hook, or at least secure for them lighter sentences or negotiate plea bargains. Not much can be done to change that.”
Prior to the enactment of the Administration of Criminal Justice Act (ACJA) of 2015, proceedings were stayed in several high profile cases which were on interlocutory appeals.
Despite the ACJA, lawyers handling high profile cases still manipulate the law to stall cases, applying dilatory tactics, sometimes aides by the inadequacies of prosecuting agencies.
Some judges also tend to indulge the senior lawyers who represent the rich. They grant long and frivolous adjournments that they would otherwise refuse where the defendant is of low class.
A judge of a court in Lagos was overheard by her support staff, saying: “Let them go and eat watery beans in prison”. She was referring to poor suspects whom she had refused bail for bailable offences.

Sentencing that
favour the rich

There have been several rulings on corruption cases that have drawn criticisms for favouring the rich and the migthy who got what appeared to be light penalties for serious offences.
For instance, the Economic and Financial Crimes Commission (EFCC) accused a former Caretaker Chairman of the Ogori/Mangogo Local Government Area of Kogi State, Gabriel Daudu, of laundering N1.4 billion.
He was accused of conniving with a former Commissioner for Agriculture, Albert Adesina, to launder the money between January and July 2008.
After six years of trial during which the EFCC called 13 witnesses, Justice Inyang Ekwo, delivered judgment on April 25.
He discharged and acquitted Adesina but convicted Daudu on 77 out of the 208 counts having found him guilty of laundering N98 million.
What came as a shock to many was that the judge sentenced Daudu to two years imprisonment on each of the 77 counts, which would run concurrently, meaning he would spend less than two years in jail.
Another verdict which caused uproar was that by Justice Abubakar Liman of the Federal High Court in Benin in the case of Michael Igbinedion, the younger brother of former Edo State Governor Lucky Igbinedion. The younger Igbinedion allegedly laundered N25 billion.
At the end of the trial that lasted four years, Justice Liman found Michael guilty on counts 79, 80 and 81 of the 81 counts and sentenced him two years imprisonment on each count, with an option of N1 million fine for each. The young Igbinedion reportedly paid.
Meanwhile, a former aide of Governor Igbinedion, Patrick Eboigbodin, who was charged along with Michael, was found guilty on 10 counts and was sentenced to 20 years.
The judgment was widely criticised. A commentator said: “How do you deter corruption by setting a fine of only N3 million for a graft involving N25 billion? And why does the assistant bag a jail term of 20 years without the option of not serving a jail term as was offered the principal offender?”
There was also the case of 14 foreigners, who the EFCC accused of illegally dealing in 1,738.087 metric tons of petroleum products. The 14 foreigners, from Russia, Ukraine, Philippine and Japan, were sentenced to two years imprisonment with effect from last March 27 when they were arrested by the Nigerian Navy.
Justice Ibrahim Buba of the Federal High Court shocked many when he also gave them an option of N5 million fine for people who allegedly stole Nigeria’s crude oil.
There was a sharp contradiction when seven Nigerians were charged of similar offences before Justice Okon Abang of the same court.
They were convicted for dealing unlawfully in 1,459 metric tonnes of petrol. They were sentenced to 10 years imprisonment without an option of fine. Critics wondered why “richer” foreigners got lesser terms of imprisonment than their Nigerian counterparts.
There are also other cases of unfair verdicts. Justice Rita Ofili-Ajumogobia of the Federal High Court sentenced a 32-year-old man, Lawrence Alaugu, who was caught with 200 grammes of Indian hemp, to life imprisonment.
Alaugu was a caught selling Indian Hemp under a bridge in Lagos. Those close to him said poverty drove him into selling the substance. Judges hardly imposed such maximum sentences for even more serious offences.
Faulting the verdict, Executive Director of Nigeria’s judicial watchdog and rights group, the Access to Justice (AJ), Joseph Otteh, described it a miscarriage of justice.
He said: “The judiciary disproportionately makes the poor people more victims of crime than people of means, while the judiciary allows ostentatious plea bargains for the rich and they are let off with just a slap on the wrist.”
Alaugu’s life sentence stands in sharp contrast to the sentence handed three Bolivians who were convicted for producing and selling banned and dangerous substances – Ephedrine and Methamphetamine.
On December 6, they were sentenced to six years imprisonment. Justice Oluremi Oguntoyibo of the Federal High Court in Lagos convicted them after they were found guilty of the crime.
The National Drug Law Enforcement Agency (NDLEA) charged the convicts – Reuben Jorge, Yhugo Moreno and Yerko Dorado – on two counts illicit drug dealing.
The convicts were allegedly housed by their Nigerian accomplices between November 2011 and February 2012 from where they were producing the dangerous drugs before their arrest. The offence violated Section 22 (a) of the NDLEA Act and attracts life imprisonment or a minimum of 25 years. But they got only six years.

History of ‘spurious’ verdicts

Many could still remember two judgments in 2013 delivered within a week which buttressed the point that justice is for the rich.
An Abeokuta Magistrate’s Court sentenced 49-year-old Mustapha Adesina to two years in prison for stealing vegetables valued at N5, 000. He was reportedly given an option of N10, 000, which is twice the value of what he stole. Reports said Adesina could not pay the fine. He was jailed.
A few days later, a former director of the Police Pension Board, Yakubu Yusuf, who admitted stealing N32.8 billion, was also sentenced to two years imprisonment, but with an option of N750, 000 fine.
The judgment generated outcry and condemnation, resulting in Justice Abubakar Talba of the FCT High Court, who adjudicated the case being suspended for one year.
Former Edo State Governor Lucky Igbinedion was found guilty of stealing N9 billion. He was fined N3 million after a “plea bargain” with the prosecution and he never spent a day in prison.
Former Oceanic Bank Managing Director Mrs Cecilia Ibru, who was accused of stealing over N190 billion, also entered a plea bargain with the prosecution. She was sentenced on October 8, 2010 after being convicted on 25 counts of fraud and ordered to refund N1.29 billion.
Ibru was found to have extended credit facilities of N16 billion to a company without collateral. After her conviction, she served six months in prison, part of which she allegedly spent in a highbrow hospital.
Former Inspector-General of Police (IGP) Tafa Balogun and the late Bayelsa State Governor Dieprieye Alamiesigha are examples of other high profile individuals who were convicted but never served jail terms.
Ogunode believes plea bargain is hardly contemplated for the low class. He said: “The whole purport of plea bargain is to serve the interest of justice as swiftly as possible; however, it has been hijacked to serve the interest of the rich while the poor, who constitute the largest percentage of the population languish in our over-congested prisons.”
According to the scholar, it was unjust that “the big thief receives a light sentence, while the common petty thieves receive the full weight of the law. It is not fair to the poor and the less-privileged of the society.”

Laws that favour the rich

Some legal experts have faulted the provision of financial penalties in some laws.
For instance, Section 15(b) of the Money Laundering (Prohibition) Act 2004 stipulates as punishment “a fine of not less than N250, 000 or more than N1 million, or a term of imprisonment of not less than two years or to both fine and imprisonment.”
To observers, impliedly, those engaging in money laundering could simply pay the fines and walk away and petty thieves charged under the stricter sections of the Criminal Code rot in jails.

Post-conviction
bail for the rich

In some instances, where the rich have successfully been convicted of crime and sentenced to prison terms, they still manage to get themselves out of prison. This privilege is never extended to the poor.
For instance, Justice Rita Ofili-Ajumogobia, on June 6, granted a post-conviction bail to former Nigerian Maritime Administration and Safety Agency (NIMASA) Director-General Raymond Temisan Omatseye, who was sentenced to five years imprisonment on May 20.
Omatseye was convicted over a contract scam involving about N1.5 billion. The EFCC accused him of bid rigging and award of contract above his threshold.
Omatseye, who appealed his sentence, applied for post-conviction bail through his lawyer Olusina Sofola (SAN). He sought to stay out of prison until his appeal was determined.
According to him, given the number of years it takes to prosecute appeals, it was likely that he could have finished serving the prison term by the time the appeal is determined.
Besides, Omatseye said he was a father of four children, one of whom was very ill and suffering from “severe medical conditions of epilepsy, atypical hypertrophic cardiomyopathy with mitral regurgitation, artrial fibrillation, enuresis, severe learning difficulties and development delays…”
He said his wife stayed full time in London with the sick child, and that in his wife’s absence, he had the responsibility of providing parental care to the remaining three children in Nigeria.
Granting the post-conviction bail application, Justice Ofili-Ajumogobia said it was for the “single consideration” of Omatseye being a parent with a sick child.
He granted him bail for N500,000 with two sureties in like sum. One of the sureties must be a civil servant no below grade level 16. The judge directed Omatseye to deposit his international passport with the court. It was learnt that the judge later reviewed the sum to N10 million following public condemnation of the verdict.
Those who faulted the post-conviction bail argue that had Omatseye not been a member of the elite but an ordinary citizen, he would certainly not have succeeded with his post-conviction application.
Another instance is the post-conviction bail granted a former beauty queen and actress Ibinabo Fiberesima.
Justice Deborah Oluwayemi of the Lagos State High Court, Igbosere, on February 20, 2009, sentenced Fiberesima to five years imprisonment for manslaughter. She was convicted for reckless driving which caused the death of a medical doctor, Mr. Suraj Giwa.
The case began at a Chief Magistrate’s Court which first convicted Fiberesima but granted her an option of N100, 000 fine. But the Lagos State government appealed to the High Court.
Delivering judgment in the appeal, Justice Oluwayemi held that the N100,000 fine imposed by the lower court on Fiberesima was tantamount to “judicial recklessness.”
According to the judge, it was unreasonable for a magistrate to give an option of N100, 000 fine to someone who had taken a life through dangerous driving under the influence of alcohol.
The judge added that Section 28 of the Road Traffic Law, Cap R10 Laws of Lagos State 2003 on which the convict was found guilty, did not give an option of fine.
Despite her criticism of the Magistrate’s Court’s verdict, Justice Olawayemi, on May 13, 2009, granted Fiberesima a post-conviction bail pending the determination of her appeal against the five-year jail sentence.
Critics said the post-conviction bail made nonsense of the five-year jail term imposed by the judge. In effect, Fiberesima pursued her appeal from the comfort of her home rather than from the prison.
On March 11, the Court of Appeal dismissed her appeal and upheld the five-year jail term. Fiberesima promptly appealed the verdict to the Supreme Court.
Again, she applied for a post-conviction bail. The Court of Appeal granted Fiberesima N2 million post-conviction bail.
Justice Samuel Oseji, who read the lead judgment, said he was inclined to exercise discretion in Fiberesima’s favour due to her health and because there was no record that she had jumped bail in the past.
But, a third member of the panel, Justice Y.B. Nimpar, dissented. He said the ground of ill-health upon which Fiberesima anchored her application for bail was untenable.
He noted there was no record before the court that Fiberesima suffered any complications since she underwent surgery for breast cancer in February. Besides, Justice Nimpar said there were adequate medical facilities in the prisons to cater to her health needs, adding that she could be referred to a hospital with better facilities outside the prison.
Following the Court of Appeal ruling granting Fiberesima another post-conviction bail, many Nigerians took to the social media to condemn the “injustice of it”.
A commentator said: “The reason there is rule of law is that people do not seek justice for themselves. Victims of crimes let the government seek justice on their behalf. The judiciary should realise that if they go against natural justice, it may result in situations where victims’ families resort to self-help.”
Another commentator, Olumide Soneye, said: “All animals are equal but…Of all the Nigerian prisoners, none of them has the same health issues like Fibreseima?”
Another reader, Kolawole Awosan said: “Such bail would be seen as unjust and unfair to the spirit and family members of the victim of her recklessness on the highway. She was supposed to pay for the crime.”
According to Ogunode, the criminal justice system reflects a pattern of bias: it deals ruthlessly with poor criminals even though the crime of the rich poses greater danger to the society.
“Our criminal justice system treats the poor as criminals and tends to overlook the more costly criminal and dangerous acts of the wealthy and powerful,” he said.
Ogunode, in an article in the journal: Humanities and Social Sciences review, compared the situation to the title of a book by Jeffrey H. Reiman: The Rich Get Richer and The Poor Get Prison.

‘Only the poor are paraded’

It is not uncommon to see the police parade criminals before camera for certain offences. Observers believe when children of the rich are involved in such crime, they are usually shielded.
Otteh said: “It is poor people who first face a public trial and condemnation before they are charged to court, when they are paraded in front of the media with various ‘recovered’ arms and ammunition placed in front of them. Those alleged to have plundered our national resources are not paraded prejudicially in front of anyone.”

When prisons
are full of the poor

The rich and powerful who committed serious offences walk free on the streets but the prisons are full of the poor, many of whom have been detained for years without trial.
According to the Prisoners’ Rights Advocacy Initiatives (PRAI), a non-governmental organisation fighting for the rights of prisoners, there are currently 7,364 inmates in Lagos prisons.
Relying on figures from prison authorities, PRAI said 5,991 of the inmates are awaiting trial. The convicts are 1,107; those on death row are 185, and those on life imprisonment are 81.
PRAI’s Director Ahmed Adetola-Kazeem said many of the awaiting trial inmates have spent at least two years or more. Several of them, he said, are either poor and therefore cannot “buy” their freedom, or have no one to help “facilitate” their release from incarceration.
“I can say almost categorically that very many of them have spent over four years awaiting trial or experiencing delayed trial sometimes for minor offences,” he said.
PRAI secure the release of Tairu Mohammed, who was freed after seven years in detention without trial. The group filed a Habeas Corpus application against the police and the Lagos State Attorney-General at the High Court in Ikeja. PRAI sought an order for Mohammed’s release.
The suspect was arrested on allegation of armed robbery. The Directorate of Public Prosecution (DPP), after scrutinising the evidence, was of the opinion that Mohammed should be tried for receiving stolen property, which had a penalty of six months imprisonment.
Either due to negligence or Mohammed’s inability to defend his rights or hire a lawyer, he remained in prison custody since 2009 despite a favourable legal advice. The advice was sent to the police in 2009, but nothing was done until PRAI filed the suit. On December 17, Justice Lateefat Okunnu ordered Mohammed’s release.
Adetola-Kazeem thinks Mohammed’s case was just an example of how the criminal justice system works against the poor and less-privileged.
He said: “It is true that the criminal justice system favours the rich and the statistics are there for everyone to see. Many influential persons who have fleeced the nation of billions of dollars walk freely today, some occupying political offices.
“In the case of the poor, a number of them have been in the prison for offences they know nothing about or are serving long prison terms for committing minor offences.
“In 2013 the Lagos State Environmental and Special Offences court sentenced about 160 people among whom were underaged persons to 390 days imprisonment for obstruction of peace without the opportunity to be represented by counsel or a clear understanding of what transpired in court. They alleged they were coerced to plead guilty.
“Whereas, many rich people who confess to stealing billions of dollars are giving a pat on the back or handed ridiculous sentences after entering into ‘dubious’ plea bargaining agreement with the prosecuting agencies. An example is Mrs Ibru, who was sentenced to six months imprisonment for stealing billions of naira. More ridiculous is that she spent the sentence in a hospital.
“Despite confessing to stealing billions, there have been deafening silence on the status of the trial of some politically exposed persons who have returned a little fraction of what was stolen. This privilege is not always open to the underprivileged.”
In 2014, a committee set up by the Interior Minister reported that Nigerian Prisons were congested because they housed more than a triple of the number of inmates specified. The committee concluded that Nigerian prisons were unfit for human habitation as most detainees were usually ill because they were kept under inhuman conditions, shackled and manacled like condemned dangerous criminals!
These awaiting-trial detainees are the poor masses, as no rich man or woman ever waited for any trial.

When justice is “bought”

No fewer than three servicing judges are on trial for corruption. The judges were accused of possessing multi-million naira worth of assets. Some allegedly adopted unconventional methods, such as accepting Value Cards and PIN numbers from criminal litigants, who approached them for favourable rulings in order to beat the various anti-corruption agencies.
A former Court of Appeal President Justice Ayo Salami, speaking at the 10th Gani Fawehinmi annual lecture in Lagos, said: “Another major point the problem with the judiciary will remain unresolved or even compounded for a long time is that Nigerians do not naturally want the truth to be told. Whoever dares to tell the truth is marked for destruction,” Salami said at the event organised by the Ikeja chapter of the NBA.
“You members of the Bar often tell sordid stories or tales of certain high ranking serving or retired judicial officers who act as ‘arrangees’ or couriers of bribe. That is, such are engaged at a fee to reach out to judges to influence or ‘purchase’ justice in certain sensitive cases.”
The Department of State Services (DSS) said it recovered over N270 million from the houses of the judges it raided in a sting operation on October 7 and in the early hours of October 8.
Those arrested in the wake of the raid were Justices Sylvester Ngwuta and Inyang Okoro both of the Supreme Court , the suspended Presiding Justice of the Court of Appeal, Ilorin Division, Justice Mohammed Ladan Tsamiya, Justice Kabiru Auta of Kano State High Court and Justice Adeniyi Ademola of the Federal High Court, Abuja.
A senior officer of the security agency, Mr. Abdullahi Garba, said: “The DSS action is in line with its core mandate, as we have been monitoring the expensive and luxurious lifestyle of some of the judges, as well as complaints from the concerned public over judgments obtained fraudulently and on the basis of money paid.”
The summary of monies recovered from some of the justices are as follows: Justice Ademola – N54 million, $171, 779.00, £80.00, 1,010.00 rupees, and €4,400.00; Justice Ngwuta – N35, 208,000, $319,475, £25,890, €280 , 380 UAE, 420 Gambia Dalais, four Argentine Notes, and 20 Ghana Cedis; Justice Okoro: N4, 350,000, $38, 833, £25,890, and €1,000.00.
They include: $530,087, £25,970, €5,680, N93, 558, 000.00, 1,000 rupees, 380 UAE, 430 Gambia Dallalis, four Argentine notes and 20 Ghana Cedis.
Some of the judges have been arraigned. They pleaded not guilty to the charges.