Femi Falana (SAN) in this paper he presented at the 2014 Law Week of the Aba Branch of the Nigerian Bar Association (NBA), Abia State
In May 2007, a number of governors completed their eight-year term of office. Having lost the immunity conferred on them by Section 308 of the Constitution, the Economic and Financial Crimes Commission (EFCC) invited them for investigation on the basis of several petitions alleging diversion of public funds running to billions of naira. Some reported for interrogation while others sought interlocutory and perpetual injunctions restraining the EFCC from arresting, investigating or prosecuting them in any manner whatsoever and howsoever.
Among those who were charged to court only two have been convicted and given light sentences. The majority of the defendants have continued to manipulate the criminal justice system to frustrate their trial. To the eternal shame of the country one of the ex-governors who got a clean bill of health by a Nigerian court was later convicted and jailed by a British court. Out of the two, who jumped bail in the United Kingdom, one is now a Senator of the Republic.
Not unexpectedly, the Nigerian people have justifiably blamed lawyers and judges for frustrating the anti-graft agencies from successfully prosecuting politically exposed persons and other members of the ruling class accused of corrupt practices and money laundering. In this presentation we shall examine how the neo-colonial legal system is regularly exploited by senior lawyers in favour of rich and powerful criminal suspects to the detriment of accountability and transparency in the society.
Judicial cover for criminal suspects
In June 2007, an ex-governor was granted leave by a state High Court to enforce his fundamental right to personal liberty and fair hearing. The leave was made to operate as a stay of action pending the determination of the application. However, upon the conclusion of investigation into the complaint of his involvement in serious economic sabotage, the ex-governor was arraigned at the Federal High Court on a 107-count charge by the EFCC. The defendant’s lawyers reported the anti-graft agency to the then Attorney-General of the Federation and Minister of Justice, Mr. Mike Aondoakaa (SAN). In his reply to the petition the Justice Minister stated that the charge filed against the ex-governor was contemptuous since leave was made to operate as a stay of action in the application for the enforcement of the latter’s fundamental rights.
Convinced that the Minister’s opinion was subversive of the rule of law I advised the EFCC to proceed with the criminal case. My advice was anchored on the case of Nzewi & Ors. v. Commissioner of Police (2002) 2 HRLRA 156 where it was held:
“It is clear that what the Court intended in that order is that the applicants should not be arrested unless there is a legal basis or justification for it. It cannot be said to mean that the order granted to the applicants a general bill of immunity or insurance from legal processes or redress in appropriate cases. The order was not meant or could not have intended to make the applicants or any of them an institution or anybody above the law. It was implicit in that order that while they carry on their lawful business peacefully and while they continue to be law abiding, their fundamental rights as enshrined in our Constitution remain inviolate and guaranteed. No court of law can make an order capable of turning a citizen into an out-law… There is nothing in the court’s order which forbids the police from performing their normal duties and no court will do that as that can lead to a state of general break down of law and order.”
Both the trial court and the Court of Appeal have dismissed the preliminary objection of the ex-governor on the ground that no contempt of court was committed by the EFCC at the trial court. The legal battle has now shifted to the Supreme Court where the interlocutory appeal may not be determined for several years to come. Such gross abuse of judicial process is encouraged under the criminal legal system when it is trite law that the police and the anti-graft agencies are not precluded from investigating even public officers who are clothed with immunity by the Constitution. The rationale for subjecting them to investigation was explained in Fawehinmi v. Inspector-General of Police (2002) 23 WRN 1 at 98 by Uwaifo JSC (as he then was) who held inter alia:
“The police clearly have a duty under section 4 of the Police Act to do all they can to investigate and preserve whatever evidence is available. The evidence or some aspect of it may be the type which might be lost forever if not preserved while it is available, and in the particular instances given it can be seen that the offences are very serious ones which the society would unlikely overlook if it had its way. The evidence may be useful for impeachment purposes if the House of Assembly may have need of it. It may no doubt be used for prosecution of the said incumbent Governor after he has left office. But to do nothing under the pretext that a Governor cannot be investigated is a disservice to the society.”
It is further submitted that the state has an unequivocal power to derogate from the fundamental rights of citizens to personal liberty where they are alleged to have committed criminal offences. As the fundamental rights guaranteed in the Constitution are not absolute there are derogations that have been recognised in the interest of public order, public safety or public morality. One of such derogations is provided for in Section 35 (1) (c ) of the 1999 Constitution which states that the right to personal liberty of any person can be justifiably violated “for the purpose of bringing him before a Court in execution of the order of a court or upon reasonable suspicion of having committed a criminal offence.” In Ekwenugo v. F.R.N. (2001) 6 NWLR (PT 708) 171 the Court of Appeal held that:
“If there is a reasonable suspicion that a person has committed an offence his liberty may be impaired temporarily. In the same vein, a person’s liberty may be tampered with so as to prevent him from committing an offence. In short it is clear that no citizen’s freedom is absolute. The freedom or liberty of a citizen ends where that of the other man starts.”
The Court of Appeal has since had cause to decry the dangerous practice of obtaining court orders to halt the investigation of criminal cases. That was in the case of the Attorney-General of Anambra State v. Chief Chris Uba (2005) 33 WRN 191 where Bulkachuwa JCA (as he then was) held that “For a person, therefore, to go to court to be shielded against criminal investigation and prosecution is an interference of powers given by the Constitution to law officers in the control of criminal investigation. The Plaintiff has no legally recognizable right to which the court can come to his aid. His claim is not one that the Court can take cognizance of for it has disclosed no cause of action. The Plaintiff cannot expect a judicial fiat preventing a law official in the exercise of his constitutional power.”
In view of the categorical pronouncements of the appellate courts on the powers of the police and the anti-graft agencies to subject all criminal suspects to investigation it is tantamount to judicial misconduct on the part of High Court judges to continue to grant orders of perpetual injunction restraining anti-graft agencies from arresting, investigating and prosecuting politically exposed persons accused of engaging in serious cases of corruption, money laundering, fraud and allied offences. Indeed, it is illogical to contend that a governor who was not immune from investigation while in office can be shielded from investigation when he/she is out of office.
Regrettably, senior lawyers have continued to approach the courts to halt the investigation and prosecution of criminal suspects. In Bukola Saraki v. Inspector-General of Police (Unreported Suit No: FHC/ABJ/CS/231/2012) the Plaintiff sought to restrain the Special Fraud Unit (SFU) of the Nigeria Police Force from investigating an allegation of N9 billion fraud levelled against him. As counsel to the defendants we challenged the competence of the suit on settled principles of law. In reaction to the objection the Plaintiff rightly withdrew the suit. Thereafter, he reported for the investigation. I have just confirmed that the suspect has filed a fresh suit at the Federal High Court with a view to stopping the police from prosecuting him having been indicted in the investigation.
In Mohammed Abacha v. Federal Republic of Nigeria (unreported) Suit No: SC.40/2006) the appellant sought to quash his trial at the Federal Capital Territory High Court on the ground that the immunity enjoyed by his father extended to the acts which constituted the offence for which he was charged. In dismissing the spurious objection the apex court held:
“The appellant tried to say that he was covered by State immunity. By the provision of section 308 of the 1999 Constitution, it was his late father – General Sani Abacha the then Head of State who had State immunity during the period that he was in office and no more than that. The appellant was not an official of the State. The immunity enjoyed by his father did not extend to him. He was not on a firm ground when he attempted to lay claim to immunity. He was not covered by any shred of immunity.”
The court ordered the appellant to return to the trial court and face the music. Notwithstanding that the case was suspended for 14 years the appellant is not precluded from raising fresh objections which may, once again, be contested up to the Supreme Court while the substantive case is further stalled. This case has confirmed the manipulation of the criminal justice system by rich criminal suspects. Apart from Nigeria I know of no other country which allows criminal suspects to have criminal cases suspended or adjourned sine die on flimsy grounds. The dangerous practice calls for an urgent review of the criminal justice system in the overall interest of the society. If the trend is not stopped other people accused of engaging in armed robbery and terrorism may soon be asking for interim, interlocutory or perpetual injunctions to stop the state from investigating or prosecuting them.
Conviction of Nigerian VIPS by foreign courts
In recent time, some Very Important Personalities and aliens, who cannot be brought to book in Nigeria for committing economic and financial crimes, have been convicted abroad. Apart from exposing the country’s legal system to ridicule before the international community such conviction is a serious indictment of the members of the legal profession. Three cases, which have recently questioned the commitment of the country to tackle the menace of corruption are reviewed below:
i. Akingbola’s Cases
Mr. Erastus Akingbola, a former Chief Executive of the Intercontinental Bank Plc had the N10 billion-charge against him pending at the Federal High Court struck out by Justice Clement Archibong (rtd.) for alleged prosecutorial irresponsibility by four- Senior Advocates of Nigeria. The trial in the sister case of N47 billion fraud filed against the defendant at the Lagos State High Court had been concluded and adjourned for judgment before the trial judge, Wale Abiru J. was promoted to the Court of Appeal. As the trial was abruptly terminated the trial of the defendant has commenced de novo.
But the defendant has challenged the jurisdiction of the same court to try him for stealing and fraud arising from the alleged manipulation of the capital market. Although, the ruling of the trial court has been fixed for May 2, 2014, the civil suit filed against the defendant in a British High Court by the Access Bank Plc. was concluded in July, 2012. In granting the reliefs sought by the Plaintiff the trial court ordered the defendant to refund the sum of N212 billion illegally diverted from the bank. The foreign judgment was registered at the Federal High Court in Lagos.
ii. Ibori Scandal
In a bid to shield Chief James Ibori, an ex-governor of Delta State from prosecution a number of judges and lawyers threw caution to the winds. Notwithstanding that his record of conviction for stealing building materials in 1995 was tampered with and destroyed, the Upper Area Court judge who jailed him gave oral testimony in a case well conducted at the High Court by the Late Chief Gani Fawehinmi (SAN). But the case was dismissed on the nebulous ground that it was not proved beyond reasonable doubt that Chief Ibori was the actual convict. The verdict was curiously upheld by both the Court of Appeal and the Supreme Court.
In the same vein, the 171-count charge of money laundering, fraud and corruption filed against Chief Ibori at the Federal High Court, Kaduna was discontinued in his favour. Following the ruling of the Court of Appeal that his trial in Kaduna was illegal the Asaba Judicial division was hurriedly set up for the trial. As there was no provision for building a court in the 2008 budget of the Federal High Court the Delta State government at the instance of the accused, donated two buildings – one to house the court and the other to house the judge!
Upon his arraignment the accused pleaded not guilty and raised a preliminary objection against the charge. The trial judge, Awokulehin J. struck out the charge and freed the defendant. However, as the Economic and Financial Crimes Commission took steps to re-arraign him, the defendant vamoosed and re-appeared in Dubai, United Arab Emirate, where he was arrested and deported to London. Following the conviction of his wife, sister, girlfriend and lawyer for aiding and abetting him in defrauding the people of Delta State the defendant pleaded guilty to the charge of fraud and money laundering. He was convicted and sentenced to 13 years’ imprisonment. It is interesting to note that Chief Ibori’s objection to the charge on the ground that he had been tried and freed of the same charges by a Nigerian judge was dismissed with an embarrassing indictment of the Nigerian judiciary.
iii. The Halliburton Case
From the reports of several investigation panels the Halliburton scandal indicted three former heads of state, a former Inspector-General of Police, former ministers, permanent secretaries and other officials of the Federal Government. Although some of the suspects indicted in the inquiry made confessional statements they were not charged to court. Some of the privies of the principal suspects, who were eventually arraigned in court, were let off the hook for want of diligent prosecution. In exasperation, the trial judge struck out the charges. The official connivance in sweeping the scandal under the carpet has since exposed the nation to underserved ridicule at home and abroad.
The national embarrassment was aggravated when it was found that Halliburton and its officials who bribed the indicted Nigerian officials pleaded guilty to the charges of bribery and corruption before criminal courts in the United States and were accordingly convicted. While Halliburton was ordered to pay fines of millions of dollars the convicted officials were sentenced to prison terms. However, the former US Vice-President, and the CEO of Halliburton at the material time who was charged before an Abuja Court by the Mrs. Farida Waziri led-EFCC for his role in the scandal was “freed” without any arraignment whatsoever.
No doubt, the decision of the Jonathan Administration to re-open the case is in the national interest. But the Attorney-General of the Federation should ensure, this time around, that the trial of all the persons involved in the scandals perpetrated by Halliburton, Wilbros, Siemens, Julius Berger, Daimler AG, Panalpina and Shell Nigeria Exploration and Production Co. Ltd. is handled by a team of incorruptible prosecutors. In the public interest the NBA should appoint some lawyers to hold a watch brief at the trial.
At the end of this paper there is a table which shows the record of convictions and payment of fines of about $2 billion in the United States by individuals and corporate bodies which bribed Nigerian officials. In the case of Nigeria none of the accused persons was convicted but the companies which were indicted were asked to pay fines of $120 million.
It is painful to note that the lawyers involved in the prosecution and defense of the cases referred to in this paper are Senior Advocates of Nigeria. The Nigerian Bar Association owes the legal profession a duty by calling lawyers who frustrate the prosecution of corruption cases to order. Trial courts are also enjoined to report such lawyers to the Disciplinary Committee of the NBA for appropriate actions.
A situation whereby the poor are daily railroaded to prison while criminals who are rich and powerful are allowed to breath the air of freedom has to stop. Judges should therefore, desist from conferring immunity or granting perpetual injunction restraining anti-graft agencies from investigating and prosecuting politically exposed persons. In a display of class solidarity with the ruling class the EFCC charges the rich accused of looting the treasury with money laundering while the poor are charged with stealing. Since the penalty for money laundering is two years or payment of fine while stealing attracts seven years imprisonment the discriminatory treatment of the two sets of criminal suspects should stop in the interest of justice and fair play.
The new practice directions of the Federal High Court, the Court of Appeal and the Supreme Court require accelerated hearing of cases pertaining to corruption and terrorism as well as appeals arising from them. For instance, the trial of such cases is required to be conducted day by day at the Federal High Court. Regrettably, the practice directions are not been adhered to by all the relevant stakeholders. Hence, corruption cases are adjourned for all manners of reasons contrary to the letter and spirit of the law. In a recent case involving an ex-governor who is facing a serious corruption case the defense counsel, a Senior Advocate of Nigeria, applied for adjournment sine die to allow the defendant contest a gubernatorial election in one of the states. The trial court rightly rejected the application.
In view of the presumption of innocence in favour of accused persons the prosecution should stop opposing applications for bail on frivolous grounds. In other words, the prosecution and the defence counsel should agree on the conditions to be attached to bail to enable the defendants to stand trial. However, where the parties are unable to reach an agreement the trial judge should impose bail conditions. The procedure will go a long way to accelerate the trial of criminal cases in our courts.
To arrest the undue delay in the prosecution of criminal cases I suggest the introduction of front loading and Pre Trial Conference. The prosecution should go beyond making available to the defendants the proof of evidence. There should be sworn statements of all witnesses which should be served on the defendants in line with the current practice in civil cases.