Special Anti-graft Court: The real issues

No doubt, the change of leadership at the national level has reignite the call for a renew effort in the war against corruption in the country, culminating into a demand for the establishment of a special Anti-corruption Court. It is stating the obvious to say that corruption in whatever form has remained the greatest threat to the country’s development.

Successive administrations since the return of civilian rule in 1999 have attempted to stem the ugly trend with little or no success. The establishment of anti-corruption agencies were seen by many as a bold and formidable step towards rooting out this cancerous monster. But after some initial success recorded by the anti-graft agencies in the aspect of conviction and loot recovery from public officers who had fleece the nation, the success story began to take a downward slide, owing to many factors that have come to draw the war back.

Evidently, the greatest problem associated with anti-corruption war is in the aspect of prosecution by anti-graft agencies in our Courts. Corruption related cases have dragged on for years in courts with virtually no meaningful progress recorded, and even those “concluded” were either summarily dismissed for want of evidence or diligent prosecution. The common believe appears to be that no high profile corruption case has ever been concluded.

MISPLACED PRIORITY
Many scholars believe that it is only the creation of a special court that would really serve as the panacea in the fight against corruption. Their assumption is premised on the fact that special court, when created, would handle corruption cases swiftly and speedily and more importantly judgment from these court would be credible and uncompromising. With due respect, we defer markedly with this submission.

We submit that it is highly unfair to put the blame of the setback on anti-corruption war squarely on the courts. It is our believe that the problem transcend the power of the courts; it is much more that of the anti-graft agencies/prosecutors, that have become largely inefficient and an obsolete Criminal rules and procedures with so many loopholes for an intelligent defence counsel to exploit, and this is why we feel that the call for the creation of a special court is at best clearly misplaced and at worst an unnecessarily surplusage.

The duty of the Judge, as we all know, is to evaluate evidence of parties and apply the law to the facts and no more. No matter how brilliant and intellect a Judge appears to be and his desire to rid the society off corruption, the Judge must strike a balance between his desire for a corruption-less society and the axiomatic principle of natural justice.

SPECIAL COURT AS NEMESIS
If we create a special court, are we going to create special Judges, special anti-graft agencies/prosecutors or special defence lawyers? Surely, this would be impossible. Experience from countries like Kenya, Pakistan and Indonesia who have established special anti-corruption courts had shown that the idea is not a one-off thing. In Indonesia for instance, the special court recorded 100% conviction rate from 2004 and 2011 when it was established but thereafter allegations of corrupt practices involving Judges of the court, leading to questionable rulings and acquittal soon rocked the court, raising questions and criticism about the courts’ integrity and sanctity.

Unless the real issue is addressed, creating special court would only institutionalised the unfortunate development. It is our contention that it is not the number of courts established or the number of judges appointed that determine speedy disposal of cases but the quality and experience of the adjudicating officer. We therefore submit that one well-grounded judge can conveniently post the performance of four average judges. If the performance of the anti-graft agencies have been less than impressive in the prosecution of cases in the regular courts, what is the assurance that they would improve in a special court? In any event, it was not a special court that convicted Ibori of corrupt charges in the UK. Even in America, it is the regular Brooklyn Court that is currently trying FIFA officials for corruption cases. So we ask why is ours different?

DEFENSE LAWYERS ARE HELPLESS
During the 2015 Annual General Conference of Nigerian Bar Association, President Buhari in his opening remarks urged Lawyers to join the anti-corruption war of his administration by exposing corrupt public officials, not minding the millions involved in the briefs. This is indeed a patriotic call from a sincere heart but the truth is that there is little lawyers can do in this regard. It is the duty of every lawyer to defend a client even when such a person pleads guilty to the crime. It is lawyers’ duty to give their client the best defence they know of within a profession they have enormous allegiance to. What the President should do is to reform the anti-graft agencies to meet international standards, sanitise the judicial system to ensure quick dispensation of justice.

LEARNING FROM EXPERIENCE
We strongly believe that it is only a versatile anti-graft agencies with impressive investigative skills and a prosecutors with unrivalled courtroom advocacy, and a special anti-corruption criminal procedure law that would address the deficiencies in our criminal justice administration. The criminal procedure law as at present promote unwholesome practices from lawyers and prosecutions, ranging from frivolous interlocutory applications and unnecessary adjournments targeted at delaying the proceedings. Election petition cases suffered similar trend until after the Electoral Act was amended in 2010 to cure the mischiefs inherent in the law and since then, disputes arising from election have been determined with impressive record and without much delay from the Tribunal to the Court of Appeal and finally to the Supreme Court.

SPECIAL ANTI-GRAFT RULES INSTEAD
These revolutionary ideas used in election petition cases can be adopted in the trial of corruption cases. We suggest that a new Anti-corruption Criminal procedure Laws should be enacted to reflect these laudable improvements. The trial court should be given not less than 164 days from the day of arraignment within which to conclude trial and deliver judgment. To achieve this the trial court should avoid delivering ruling on interlocutory applications, with the exception of bail application. Bail application is a Constitutional right grounded on the presumption of innocence.

Any other interlocutory applications – including applications challenging the jurisdiction of the trial Court – should be heard during the trial but rulings thereto should be reserved and delivered along with the judgment in the substantive matter. This would prevent unnecessary appeals arising from the rulings of the trial court, which would have delayed the substantive matter. Again an application for stay of proceedings should be expressly disallowed as was the case in the just enacted Administration of Criminal Justice Act operative in Abuja.

The Prosecutor should be giving not less than 25 days to prove its case after which the accused/defendant should be entitle to not less than 30 days to defend him/herself. At the close of hearing, the accused should have 10 days to file final written address and 6 days for the prosecution to file their address and 3 days for the accused to file his reply where necessary. Appeals from the trial court to the Court of Appeal should be determined within 60 days of the filing of the Notice of Appeal, while Appeals to the Supreme Court should be concluded within 40 days of the filing of the Notice of Appeal.

NO MORE “IMMUNITY” FROM COURTS
Another unwholesome practice that the court must address is a situation where politicians and influential personalities use the court as a shield against criminal prosecution. This is done by filing ex-parte applications at the High Court with the aim of obtaining an interim order restraining the anti-graft agencies from arresting, investigating and even inviting these big personalities.

Sadly, the courts have continue to give undeserved cover to this class of people, while at the same time declining same to the common man in the society, thereby fuelling insinuation that the symbol of justice is no more blindfolded. With this practice the courts are unwittingly setting a dangerous precedence in our jurisprudence by saying that it is Ok to shield accused persons from criminal investigation, and as such frustrating the works of anti-graft agencies. This is like giving these people immunity through the backdoor. What other personalities couldn’t get in the form of immunity from the Constitution, they are getting it from the Courts through injunctions. Haba, this is untenable!

ANTI-GRAFT AGENCY/PROSECUTION IS THE KEY
On the part of the Prosecution, we believe that credible investigation is crucial to securing conviction. There is no point for the anti-graft agencies to file frivolous charges in court without having compelling, convincing, cogent and credible legally admissible evidence to prove their case. The prosecution of corruption cases have assumed a humiliating trend, no thanks to the prosecution’s poor case management. Or how do one explain a situation where the agency file over 100 charges against an accused and at the end not a single offence would be proved? The prosecution should appreciate the fact that every offense has its ingredients that must be proved with admissible evidence without which securing conviction would be a fallacy.

If the evidence at the disposal of the agency support a single charge, then they should file a count. It doesn’t make any sense multiplying charges just to make headline in the Media. Anti-graft agencies must step up to the plate by ensuring that only experts with unparalleled investigative skills, and special prosecutors with unrivalled courtroom advocacy are saddled with the prosecution of corruption cases. Anti-graft agencies should adopt the practise of planting undercover agents in the midst of suspected criminals in order to gather useful data that would be use to thwart the commission of impending crimes, this is the practice in developed countries.

An high profile personality slammed with charges of corruption would definitely deploy all his arsenals to fight the battle of his life, including retaining the service of many brilliant but clever SANs to rubbish the case of the prosecution and also use the media to whip up sentiments in an attempt to derail his trial. What the anti-graft agency/prosecution should do is to have the stamina to withstand and confront the tactics of the accused person by also retaining the service of brilliant yet clever SANs who understand the antics and modus operandi of their colleagues in the profession.

The anti-graft agency must be able to march the accused person money for money and resources for resources. The truth is that the whole thing – trial – is a game of chess and only the most brilliant and clever would remain standing in the end. Another important thing is for the anti-graft agencies to imbibe the practice of appealing any unfavourable judgment they feel strongly of to the appellate and Supreme court. There are paucity of cases where anti-graft agencies appeal unfavourable trial courts’ judgment in our Law Reports. They must not be derailed or discouraged; they have to exhaust all available legal options before capitulating.

CORRUPTION FIGHS BACK
Corruption has a way of fighting back to haunt the anti-graft agencies and scuttle the war against corruption. This is not unexpected in a country where politicians would stop at nothing to desecrate any decent institution. This is exactly what happened in Kenya earlier in 2015 when the Chairman and the deputy Chairwoman of the country’s Ethics and Anti-Corruption Commission (EACC) were suspended by the President after the Commission had released a report accusing 175 politicians and high-ranking State officials of taking kickbacks. To avoid this the anti-graft agencies must like Caesar’s wife be above board at all time.

CONCLUSION
We strongly believe that creating special courts is entirely unnecessary; what is needed is a complete overhaul and reform of the anti-graft agencies to meet international standards, sanitise the judicial system to ensure quick dispensation of justice. On assumption of office, President Buhari set up a Presidential Advisory Committee against Corruption headed by a renowned Professor of law, Itse Sagay with the aim of advising his administration on the prosecution of anti-corruption war. This is no doubt a laudable step and we hope the committee would provide policy recommendations that would be use to root out the menace.

Alatise Taofeeq Esq., Wahab Egbewole & Co. Ilorin.