The government, it appears, has found the will to fight corruption and impunity, which have held Nigeria back––no thanks to intractable delays in bringing culprits to justice, especially in high profile criminal cases. The Administration of Criminal Justice Act 2015 has been hailed as a revolutionary intervention. Despite the law’s noble objectives, other factors, including archaic procedure, weak institutions and regulatory failure, can prove debilitating to the anti-corruption crusade if not quickly addressed. JOSEPH JIBUEZE writes that the judiciary is still in dire need of fundamental reforms.
Vice-President Yemi Osinbajo (SAN) is not unaware of the fact that Nigeria ranks low in all development, transparency and governance surveys and indexes due to systemic corruption and impunity. This is why he is bothered that since the Economic and Financial Crimes Commission (EFCC) was established in 2002, only eight high profile cases have been successfully concluded, in spite of the monumental sleaze cripping the system. Of the eight cases, one was overturned by the Supreme Court on technical grounds, meaning only seven major convictions have been secured after trial in 13 years. “We must do more,” was the Vice-President’s conclusion.
The Administration of Criminal Justice Act, signed into law on May 13, has, therefore, been hailed as a revolutionary intervention to end delays in criminal trials. But the judiciary is still bedeviled by other debilitating issues that can frustrate the law’s successful implementation.
Osinbajo, speaking at a workshop on Sections 306 and 396 of the ACJA and Delay of Corruption Cases, organised by the Centre for Socio-Legal Studies (CSLS) and the Presidential Advisory Committee on Corruption (PAAC) in Abuja, identified breach of ethical rules by lawyers, overcrowded courts, compromised judicial officers, ill-equipped investigators and prosecutors, among others, as factors that can frustrate the Act. Represented by PAAC chairman Prof Itsay Sagay (SAN), the Vice-President said the ACJA has provisions which ensure that impunity of public officials, private profiteers and others who rob the nation of its wealth is brought to an end. That is, if the law is effectively implemented.
How corruption cases are frustrated
According to PAAC’s Executive Secretary Prof. Bolaji Owasanoye, prior to the enactment of the ACJA, frustration of high profile cases followed a similar script. A grand arrest of a politically exposed person is made, accompanied by wide media coverage and outrage. The person is arraigned by a law enforcement agency. Usually, a long list of charges is preferred against the accused in multiple counts. Bail is automatically requested and is usually granted. The court will order that the accused person’s International Passport be seized.
Whether or not bail succeeds, the defence counsel will challenge the court’s jurisdiction to adjudicate the case. If the judge assumes jurisdiction, the defence will appeal and ask for a stay of proceedings. Where the judge refuses to grant a stay, the defence counsel will accuse the judge of bias and write a petition demanding that the case be transferred to another judge. An accused can also change counsel, and the new lawyer will ask for an adjournment to enable him study the casefile having just received it.
After a while, the accused will apply for the release of his International Passport to enable him travel abroad for medical treatmentafter presenting medical “evidence” that he suffers from a chronic ailment. Having obtained the leave, he may not travel immediately, until a few days to the day the case is to come up for hearing. Due to his absence, there inevitably will be an adjournment. Once free the accused begins a campaign of political persecution, while defense counsel continues with dilatory tactics to delay case.
With time, witnesses become disillusioned, scared, uncooperative or unavailable. The prosecution gets fatigued or become distracted by new cases. Public and media apathy follow as the case goes into hibernation. The trial judge may retire, transferred to another division or elevated to a higher court, deliberately or coincidentally, and the accused persons will be re-arraigned before another judge.
The process of bail and challenge of jurisdiction will be repeated. Eventually case may be struck out for want of prosecution, or a pliant judge may grant stay of proceedings pending outcome of an interlocutory appeal which may go up to the Supreme Court. Thus, the case hangs in abeyance for close to 10 years, by which time evidence must have been muddled up and witnesses no longer available. In the meantime, the accused could have won an election and assumed a new public office.
Some ‘frustrated’ cases
Some high profile cases have been stalled through injunctions. The case of former Rivers State Governor, Dr. Peter Odili, stands out because unlike others, he was never arraigned. In March 2007, he obtained a remarkable Federal High Court injunction restraining the Economic and Financial Crimes Commission (EFCC) from investigating his tenure. Soon after he left office, he secured a “perpetual injunction” that permanently restrained the EFCC from “arresting, detaining and arraigning” him on the basis of his tenure as governor. Justice Ibrahim Buba of the Federal High Court, who made the order, added that the EFCC had no power “in any manner, howsoever, to investigate the account or financial affairs of a state government”. In March 2008, “for the avoidance of doubt”, Justice Buba issued an order that the EFCC could not “arrest, detain, arraign and/or prosecute (Odili) on the basis of its alleged investigations into the affairs of Rivers State” during Odili’s tenure. The judge declared that the “purported findings” of the EFCC’s investigations were “invalid, unlawful, unconstitutional, null and void.”
There is also the recent case of former Aviation Minister, Princess Stella Oduah. Justice Mohammed Yunusa of the Federal High Court in Lagos, on August 26, restrained anti-graft agencies, including the EFCC, from questioning or arresting her over the purchase of two BMW bulletproof vehicles for N255million by the Nigeria Civil Aviation Authority (NCAA), until her suit is determined.
In September 2004, British authorities in London arrested one-time Plateau State Governor Joshua Dariye on allegations of money laundering and seized about £90,000 in cash from him. Dariye allegedly skipped bail and returned to Nigeria to resume office. An English court sentenced Dariye’s associate to three years in prison in April 2007 for laundering more than £1.4 million of public funds found to have allegedly been stolen by the governor. At the expiration of Dariye’s tenure, the EFCC charged him with 14 counts of money laundering. But more than seven years after he left office, the case is still pending.
A Nasarawa State governor, Senator Abdullahi Adamu, was arrested in February 2010 by the EFCC for alleged embezzlement of public funds. On March 3, 2010, he was arraigned along with 18 others on a 149-count charge of fraud involving over N15 billion, but the case has been stalled due to an interlocutory appeal.
Former Gombe State Governor, Senator Danjuma Goje and four others, were first arraigned on October 17, 2011 on alleged conspiracy, fraud and money laundering charges. He allegedly embezzled N52 billion public funds. The case is still pending.
Prior to his current trial at the Code of Conduct Tribunal (CCT), Senate President Bukola Saraki had been a subject of investigations by the Special Fraud Unit of the Police, following allegations of a loan scam. The loans were allegedly secured by Saraki between 2004 and 2009 when he was Kwara State governor. Saraki had sued the Inspector-General of Police. In the suit marked FHC/ABJ/CS/231/, he sought to restrain the SFU from investigating an allegation of N9 billion fraud leveled against him. He subsequently filed a fresh suit seeking to stop the police from prosecuting him, which is still pending.
On July 27, 2007, a former Abia State governor Orji Uzor Kalu was arraigned before an Abuja High Court on a 107-count charge of money laundering, official corruption and criminal diversion of public funds in excess of N5 billion to Slok Airlines. Kalu pleaded not guilty to the charges. An interlocutory appeal has stalled the case.
In July 2007, former Taraba State Governor Rev Jolly Nyame was arraigned on a 41-court charge. He was alleged to have embezzled N1.3 billion. Trial commenced in his case, but is yet to be concluded eight years down the line.
Former Jigawa State Governor Saminu Turaki was arraigned on a 32-count charge of stealing about N36 billion over an eight-year period. The case was reportedly transferred to his home state and is said to be pending at a Federal High Court in Jigawa.
A former Adamawa governor Boni Haruna was arraigned before a Federal High court sitting in Abuja on an amended 28-count charge of embezzling the sum of N16million. The case is still pending.
A former Ogun State Governor, Gbenga Daniel, was charged by the EFCC with mismanaging state funds. The commission docked him at the Ogun State High Court, Abeokuta, on a 38-count charge of fraudulent conversion of land, failure to declare assets, stealing and corruptly acquiring properties. In September 2013, a principal prosecution witness in the trial, Tunde Oladunjoye, withdrew from testifying in the case after allegedly accusing the EFCC of shoddy prosecution. The case has not been decided.
A former Chairman of the House of Representatives Ad-hoc Committee on Fuel Subsidy, Farouk Lawan and its Secretary Boniface Emenalo, were charged with collecting $620,000 as bribe from oil magnate Femi Otedola. They were arraigned on February 1, 2013 at the Federal Capital Territory High Court in Gudu, Abuja. Their trial started under Justice Mudasiru Oniyangi, who was soon elevated to the Court of Appeal. After the loss of several months, the case was re-assigned to Justice Adebukola Banjoko on June 11 to begin afresh. On November 18, Justice Banjoko withdrew from the case, which is still pending.
A former Chairman of House Committee on Power, Ndudi Elumelu, and 29 others were charged by the EFCC before the Abuja Federal High Court over allegation of defrauding the Federal Government of N5.2 billion earmarked for rural electricity projects. The case is still pending.
Shortly after his impeachment in 2006, Ekiti State governor, Mr. Peter Fayose, was charged over allegations of financial misappropriation between 2003 and 2006. Contrary to reports, the EFCC said it has not dropped the case, which the anti-graft agency said, will resume after the governor’s tour of duty.
Section 396 (2) provides that any objection shall only be considered along with the substantive issues and a ruling thereon made at the time of delivery of judgment. It provides in sub-section three that trial shall proceed from day to day until the conclusion of the trial. No party is entitled to more than five adjournments, and the interval between each adjournment shall not exceed 14 working days.
The Act empowers the judge to sanction any who causes undue delays. Sub-section six provides: In all circumstances, the court may award reasonable costs in order to discourage frivolous adjournments.
If a judge is elevated to the Court of Appeal, he must first conclude the trial. Sub-section seven says: A judge of the High Court who has been elevated to the Court of Appeal shall have dispensation to continue to sit as a High Court judge only for the purpose of concluding any part-heard criminal matter pending before him at the time of his elevation and shall conclude the same within a reasonable time.
“These two sections are quite apt and will help us in reducing delays in trial of high profile cases,” says Justice Abubakar Talba of the Federal Capital Territory High Court.
A professor of law and President, Centre for Socio-Legal Studies, Yemi Akinseye-George (SAN), whose organisation played a key role in developing ACJA’s innovative provisions and in the advocacy that saw the legislation become law, said the ACJA responds to Nigeria’s dire need for a new legislation that will transform the criminal justice system.
According to Akinseye-George, before the ACJA was enacted, criminal procedure was governed by the Criminal Procedure Act (CPA) and the Criminal Procedure Code (CPC). The ACJA merges the two principal legislations and is intended to apply uniformly in all federal courts. All states are expected to domesticate the Act.
The main purposes of the ACJA, he said, include to promote efficient management of criminal justice institutions and speedy dispensation of justice, protect the society from crime, and protect the rights and defendants’ and victims’ interests. It has provisions on unlawful arrests, notification of cause of arrest, humane treatment of an arrested person and prohibition of arrest over civil cases, recording of arrest, establishment of a Police Central Criminal Registry, electronic recording of confessional statements, monthly report by police to supervising magistrate, quarterly report of arrests to the Attorney-General of the Federation (AGF), oral bail application in non-capital cases, women as sureties, only lawyers as prosecutors and professional bondspersons.
The Act provides for an Administration of Criminal Justice Monitoring Committee with powers to consider all returns made to the Chief Judge for the purpose of ensuring expeditious disposal of cases. Section 376 provides a time limit for the issuance of legal advice by the Directorate of Public Prosecution (DPP), which before now was not done promptly. It states that the AGF shall, within 14 days of receiving a case file, issue and serve a legal advice indicating whether or not there is a prima facie case against a defendant. There are provisions on witness protection. Section 232 of the Act permits witnesses in some offences to give evidence in camera, such as rape, terrorism, offences relating to Economic and Financial Crimes, trafficking in persons, among others.
Section 319 empowers a court to order the convict to pay compensation to a crime victim. The court may also order the defendant to defray expenses incurred in the prosecution. An innocent purchaser who gives up stolen property also deserves compensation under the Act. A convict will also be ordered to pay medical expenses of an victim.
Not all convicts end up in prison under the ACJA. Sections 453, 460 and 468 provide for suspended sentence, community service, parole and probation so as to reduce prison congestion and prevent those who committed certain offences from mixing with hardened, coldblooded criminals.
A law teacher, Wahab Shittu, described the ACJA as “a revolutionary intervention in our justice delivery system that would impact on the quality of justice and avoid delays in the adjudicatory process in Nigeria.”
He added: “It can be said with justification that the ACJA is the hottest law in the country right now…Delay is one of the key objectives the Act seeks to address and it has resolved it, in principle at least. Thus, prolonged delays of trial may remain a thing of the past. It can be said with sufficient measure of justification that the ACJA is a bold and innovative intervention in the administration of criminal justice system which raises hope of speedy disposal of criminal cases by the judiciary, thereby forestalling a prospect of jungle justice and pervasive impunity which now rules the land.”
Activist-lawyer Femi Falana (SAN) described the Supreme Court ruling as “controversial” and “erroneous”. His words: “It is unfathomable that the Supreme Court decided to return the country to the status quo ante in a rather brazen and bizarre manner. In view of the ouster clause contained in section 306 of the AJCA, the CCT ought not to have delivered its ruling in respect of the preliminary objections filed by Dr. Saraki. The ruling should have been read together with the judgment after the conclusion of the trial. It was the premature ruling of the Tribunal which led to the filing of an interlocutory appeal in the matter.
“Instead of declining jurisdiction to entertain the interlocutory appeal which has been abolished by the AJCA, the Court of Appeal ordered a suspension of the trial at the CCT to await its decision. Although the Court of Appeal eventually dismissed the appeal, the trial of the substantive case at the CCT has been further halted by the Supreme Court which has granted another stay of proceedings pending the hearing of the interlocutory appeal filed before it by the accused person.
“However, it is sad to note that in granting the order of stay of proceedings, the Supreme Court ignored the provisions of sections 306 and 396 of the ACJA . It was not a case of oversight or lack of knowledge of the existence of the AJCA on the part of the Court, but a deliberate judicial decision to turn back the hand of the clock in the ongoing battle against corruption and impunity in the land.”
Prof Sagay and other senior lawyers, including Chief Adegboyega Awomolo (SAN), first female SAN, Chief Folake Solanke, said the Supreme Court should have allowed the case to go on.
Sagay said: “The new Administration of Criminal Justice Act 2015 has completely eliminated any application or grant of stay of actions or proceedings in criminal trials; it prohibits it. So, what the Supreme Court has done is illegal and it is shocking that the Supreme Court would indulge in illegalities.”
Awomolo said: “I would have preferred that the Supreme Court allowed the trial to go to conclusion because the law has provided that all preliminary objections shall be taken and decided together in the judgment of the court.” Solanke said: “I am in agreement with Mr. Femi Falana. I am on the same page with Mr. Femi Falana.”
However, activist lawyer Chief Mike Ozekhome (SAN) said Section 306 of the ACJA applies only to the trial court, and not to appellate courts. “What is before the apex court is an appeal from the decision of the Court of Appeal in respect of the jurisdiction of the CCT. From the plain wording of section 306, the ACJA does not apply to the Supreme Court or any other appellate court for that matter, but to the CCT,” he stated.
To the make the ACJA effective, it was resolved at the PAAC/CSLS workshop that the Act must be given purposive interpretation and application by the courts so that cases are adjudicated with the urgency required.
Chief Judge of FCT High Court, Justice Ishaq Bello, who chaired the committee that drafted the ACJA, said not granting stay of proceedings will eliminate frivolous applications. According to him, a judge ordinarily should not entertain applications seeking to quash a charge before an arraignment, because “a judge is seized of a charge only after plea has been taken.” He added: “A judge cannot rule on the quashing of a charge without plea, because without it the case is still at the gate.”
The courts were enjoined to give literal interpretation and full effect to sections 306 and 396 to avoid unnecessary and frivolous interlocutory applications, and to adopt the wasted costs mechanism to deter counsel from seeking frivolous adjournments.
Legal experts recommended that the judiciary should develop a strong national judicial policy which should prohibit the abuse of interlocutory applications and injunctions, while appellate courts must not entertain interlocutory appeals in defiance of the clear provisions of the ACJA. They said the ACJA needs to be amended include sanctions for non-compliance with its provisions. They urged the Federal Government to initiate an amendment of the 1999 Constitution to incorporate the provisions of Section 306 of the ACJA. The resolution, signed by Prof Akinseye-George, recommended that all stakeholders must collaborate to implement the ACJA in order to restore the lost glory of the criminal justice system. Still, the judiciary needs further reform.
Other factors, if not urgently addressed, can make the ACJA’s implementation ineffective. These include: negative role of defense counsel and use of other delay tactics such as abuse of bail and requests for adjournment through false medical requests; and the fact that the judicial process tolerates influential accused persons to endlessly rigmarole the criminal justice system. According to Prof Owasanoye, some lawyers and judges “conspire” to frustrate, rather than advance criminal justice administration. Poor funding of law enforcement agencies, as well as operational weakness must also be addressed.