Saturday, 18 May 2013
Is It Time To Outsource Nigeria’s Criminal Justice System? By Adebayo Kareem
Within the last 10 months, two of Nigeria’s most infamous crooks were finally brought to justice and convicted of their various criminal acts against the people of Nigeria. James Ibori is currently a long-term tenant in one of Her Majesty’s prisons after being sentenced to 13 years imprisonment for various money laundering offences by a London Court in April 2012 whilst Henry Okah has now been convicted of masterminding the October 1 2010 bombing that took place in Abuja in which many people were killed.
The tragedy for our country’s Criminal Justice System (CJS) however is that, rather than beating its chest in celebratory achievement for performing its routine statutory mandate, it has to look askance as foreign prosecuting agencies, in foreign countries took centre stages in meticulously bringing to justice Nigerian crooks who committed grave crimes on Nigerian soil.
How have we come to this? Why has a country with long history of excellence in the legal profession suddenly become a haven for criminals where white collar crooks saunter around brazenly- blatantly assaulting our collective sight with the proceeds of their crimes? Why is Nigeria- a country which has in the past exported prosecutors, judges and Chief Justices to many other countries and produced president of the World Court; and a country which still has so many excellent lawyers with sharp, forensic legal minds advancing the course of Criminal Justice in the UK, US, and all the various International Criminal Tribunals, now finds itself in a situation where criminals now realise that as long as they remain within the shores of Nigeria, they can rely on the prosecuting agencies and our Courts to help them in proving their innocence beyond reasonable doubt?
The answer of course lies squarely on the shoulders of those saddled with the responsibility of formulating our Criminal Justice policy. We continue to use 19th Century legal frameworks to prosecute 21st Century crimes and criminals. Save for Lagos state, our Criminal Procedural Regimes (at federal and state levels) are archaic and patently unfit for purpose. The Federal Attorney-General and his various state counterparts should make reforming our CJS, particularly our procedural regimes- both criminal and civil- their top priorities. For the constraint of space, this writer will focus on two areas in need of very urgent reform.
i. Lack of strict Case Management Regimes-
Countries which are serious about fighting crimes have always found a formula which blend fairness with speed in the dispensation of criminal justice. This they do by establishing robust and necessarily rigid Case Management System (CMS) which brooks no undue delay on the parts of either the prosecution or the defence. Parties must disclose their cases, evidence and witness list to the Court and other party within designated timeframe. There are usually grave consequences for non- compliance. Subsequently, with the help of the disclosures by the parties which would have revealed the amount of witnesses required and documents to be considered as exhibits during the trial, the Courts will then fix the trial timetable and nothing short of serious injury or death or other such serious unanticipated occurrence that might adversely impact on the fairness of the trial will make the Court extend the trial beyond the fixed trial time table. However in Nigeria, if there is any semblance of ad-hoc CMS at all, parties feel free to treat it with contempt. Recent comment attributed to Festus Keyamo, a well-known advocate, underlines the lackadaisical attitude of Nigeria’s lawyers to the imperative of a robust and time-bound CMS.
Keyamo has issued a press statement condemning the conviction of Henry Okah by the South Africa’s Court, saying the conviction was politically motivated. Mr Keyamo, who is defending Henry Okah’s brother’s Charles who is charged with identical offences and is being tried by an Abuja Court, states that two weeks ago he wrote to the South African Court that some of Charles witnesses in Nigeria wanted to testify for Henry in the Johannesburg trial. Keyamo is angry that the South African Court disregarded his application and proceeded to deliver judgment on the case. On this basis, Mr Keyamo condemned the trial even though it is unclear what would have been his locus in the South African trial and whether Henry’s counsel actually shared Keyamo’s decision to proffer additional witnesses in South Africa.
Henry Okah has been in detention since October 2010. Case management hearings would have been conducted in which Henry would have provided the Court with list of his witnesses. Why did Keyamo wait until two weeks ago to notify the South African Court of these witnesses? Curiously, Keyamo stated that some of these witnesses are Nigeria’s own government officials and the question immediately arises- why would government officials be willing to give (presumably) positive evidence in support of Okah in a trial being effectively prosecuted by South African government on behalf of Nigerian government?
If Nigerian government officials are Charles Okah’s witnesses, why are we going through the charade of prosecuting Charles in Abuja then? On the face of it, it does not make any sense to this writer and the South African Court probably took the view that the application was frivolous and calculated to unduly delay the proceedings. It is tactics like this which also explains why the EFCC struggles to bring to conclusion prosecution of Politically Exposed Persons and why the EFCC has not been able to secure conviction against any of the ex-governors, ministers and government officials it arrested with fanfare in 2011.
ii. Antiquated procedural regimes and frivolous interlocutory appeals.
Our criminal procedural regimes are simply unfit for purpose. We are still using colonial era criminal procedural rules, designed in the 19th Century for criminal prosecutions in the 21st Century. Although section 19(2)(b) of the EFCC Act explicitly provides that trials brought to Courts by the EFCC should be ‘conducted with dispatch and given accelerated hearing’, our unreformed 19th Century procedural regimes, coupled with appalling working environment of the various state High Courts (in most states judges still take notes in long hands), have meant that despite the best interest of the promulgators of the EFCC Act, the agency has not been able to fully take advantage of this provision. Another area of abuse is the use of frivolous interlocutory appeal to delay the course of justice.
Every so often, defendants dissatisfied with the decision of a trial Court, appealed such decision to the Appellate Court and request such interlocutory appeal to, ipso facto serve as a stay on the substantive matter at the trial Court. The interlocutory appeals inevitably subsequently drag on for months or years leaving the substantive matter in the cold. A good example of the abuse of interlocutory injunction relates to the case of Joshua Dariye. In 2007 after he lost his gubernatorial immunity, the EFCC charged Dariye to Court on 14 counts of money laundering. Once he was arraigned, Dariye’s lawyers invited the Court to quash all the allegations against him. The trial judge, Justice Adebukola Banjoko dismissed the motion but Dariye’s counsel appealed her decision and the trial was halted pending the determination of the interlocutory appeal. The appeal was later dismissed by the Supreme Court in June 2010- three years later, by which time Joshua Dariye has become a Senator. The trial proper of senator Dariye is yet to commence, almost 6 years after being charged.
Defence lawyers typically take advantage of this situation to milk the system and ensure that trials proper never really take place. In a Human Rights Watch publication titled ‘Nigeria- Corruption on Trial?’ and published in August 2011, the HRW quoted Ricky Tarfa a prominent defence lawyer as saying-
‘The laws are skewed in favour of an accused person…Once he is granted bail he can drag out his trial forever. This is compounded by the fact that judges are bombarded with work, have no modern facilities, and no good assistance’.
Therein lays the crux of the matter. The system is rotten and is designed to be toothless and unworkable. The Executive knows it. The Legislatures knows it. But it appears it suits them both for the continuation of the status quo –after all, it is not, for example, in the interest of Senator Dariye to support a bill calling for the reform of our Criminal Justice System. And sadly for the Nigerian people, the National Assemblies contain many Dariyes!
Our prosecuting agencies and the Courts have been getting the flaks of the Nigerian people for their perceived incompetence and culpability in bringing justice to high profile government officials accused of corruption. The statistics are indeed dire for the EFCC. Since its inception in 2003, the EFCC has arraigned about 50 prominent politicians for various offences of fraud and money laundering running into billions of US Dollars, but has secured conviction on only four of them. Indeed of the four convictions, three were in fact settled by way of Plea Bargaining and only Olabode George was convicted after full trial. The trials of all the governors, ministers, prominent government officials, including the ex -speaker of the House of Representatives that were arrested in 2011 have remained stunted- no single witness has been called on any of them almost two years later.
However in the opinion of this writer, the real culprit is not the EFCC, ICPC or the Judiciary- the real culprits are the Executive and Legislative arms of the government which have chosen to make the works of the prosecuting agencies impossible. In the Presidential system of government which we pretend to operate in Nigeria, prosecutors or Courts cannot make laws. The acts of initiating the making of laws and passing of laws often lie in collaboration between the Executive and the Legislatures. It is high time the Executive and Legislative arms of our government reformed our antiquated Criminal Justice System. Until this is done, this writer hereby humbly suggest that all the case files involving all former governors, ministers, high profile government officials, including the Lawan-Otedola files, should promptly be outsourced to England and South Africa!
Adebayo Kareem works as a Legal Officer with the African Union. He is contactable at firstname.lastname@example.org.
The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of SaharaReporters