It has been a string of losses in court for the Federal Government on the prosecution of corruption cases. What is the problem? How can the losses be stopped? Eric Ikhilae writes.
Last Wednesday, the Code of Conduct Tribunal (CCT) discharged and acquitted Senate President Bukola Saraki of the 18-count false assets declaration brought against him by the Code of Conduct Bureau (CCB).
In his lead ruling, which second member of the tribunal – Williams Atedze Agwadza – concurred with Umar, found that the evidence led by the prosecution through its four witnesses and 48 exhibits, was inadequate to secure a conviction.
Umar said: “From the testimony of the first prosecution witness, he repeatedly stated that his team has never invited the defendant. In other words, their investigation was more of intelligence gathering than conventional investigation known to all.
“Where a person is being investigated, especially by a commission like EFCC (the Economic and Financial Crimes Commission), it behoves on the commission to invite the defendant so that the truth of the matter can be established.
“PWII, who is the Head of Funds Transfer Unit in GTB, in his testimony, stated that there was a fire incident that engulfed the entire unit of Guaranty Trust Bank Funds Transfer, and so, many documents were lost.
“PWIII, in his own testimony, stated that the Chairman of the CCB gave him an oral instruction to go and join the team of investigators from the EFCC to investigate the defendant and he also stated that after completing their investigation, he (PWII) came back to his Chairman at CCB and gave his oral report of the investigation.
“This is absurd. The tribunal finds it difficult to accept the seriousness of this kind of investigation at all. It is the belief of this tribunal that all the testimonies of the prosecution witnesses adduced in this trial have been so discredited as a result of cross examination and is manifestly unreliable that, no reasonable tribunal could safely convict on it.
“The tribunal equally observed that the evidence adduced by the prosecution is far from proving essential elements in the alleged offences against the defendant. In the light of the foregoing, the tribunal has nothing to do other than to discharge and acquit the defendant.”
Two hours after the Saraki trial ended, the Court of Appeal delivered judgment in the case involving former Minister of Niger Delta Affiars, Godsday Orubebe.
A three-man panel led by Justice Abdu Aboki set aside the October 4, 2016 conviction of Orubebe by the CCT on a charge of false asset declaration.
Both decisions extended the growing list of corruption- related cases involving prominent Nigerians, which the Federal Government recently lost.
On April 4, the Independent Corrupt Practices and other related offences Commission (ICPC), in a controversial manner, withdrew a N1.97billion fraud charge it filed against Orubebe and some others before the High Court of the Federal Capital Territory (FCT).
The ICPC which had earlier told the court that it was set for trial, confounded all when it later applied to withdraw the case by tendering a letter dated December 16, 2016 from the Attorney-General of the Federation (AGF) and Minister of Justice, Abubakar Malami (SAN).
According to the letter written on behalf of the AGF by the Director of Public Prosecution of the Federation (DPPF), to Chairman of the ICPC, with Ref No. DPPA/MNDA/345/16, there was no basis for the trial.
It said the N1,965,576,153.46, which Orubebe and others were accused of diverting, “has not been expended, but is awaiting further contract decisions and directives from the Ministry of Niger-Delta Affairs.
“In view of the above, the basis for the prosecution of the accused persons for misappropriation does not exist and thus, further prosecution cannot be justified,” the letter said.
Justice Olukayode Adeniyi proceeded to strike out the charge.
The next day, on April 5, 2017, Justice Jude Okeke, also of the High Court of the FCT discharged and acquitted Justice Adeniyi Ademola (of the Federal High Court), the judge’s wife, Olabowale and a lawyer friend, Joe Agi (SAN) arraigned on corruption charges.
In upholding the no-case submission by Justice Ademola and others, Justice Okeke dismissed the 18-count charge brought against them and held that the prosecution, which called over 10 witnesses, did not establish a prima facie case against the defendants.
There is a disagreement between the office of the AGF and the National Judicial Council (NJC) as to whether there is a pending valid appeal by the government against the decision in the Justice Ademola and others case.
Another recent prominent case in which the Federal Government suffered a loss was the one involving Chief Mike Ozekhome (SAN).
Last December the EFCC obtained an interim order from a Federal High Court in Lagos freezing Ozekhome’s account, alleging among others, that it traced proceeds of crime to it.
A few weeks later, Justice Abdulaziz Anka lifted the order and upheld Ozekhome’s explanation that the N75million in the account was part of the professional fee he got from a client.
Observers have attributed the frequency with which the government is losing corruption cases involving prominent individuals to a variety of reasons.
First is what they described as the ‘poor leadership’ exhibited by the incumbent AGF, a development they blamed on the seeming lack of coordination and strategy among relevant government agencies involved in the fight against corruption.
They cited the contradictory roles played by the Department of State Services (DSS) and the AGF’s office in the trials of former National Security Adviser (NSA), Sambo Dasuki and Orubebe.
Proceedings in the EFCC’s cases against Dasuki were postponed unceremoniously several times because the DSS, in whose custody he is kept, refused to produce him in court, without pre-informing the EFCC.
In the N1.97b case involving Orubebe, the office of the AGF waited for the ICPC to charge the case to court before issuing a letter contradicting the allegation raised in the charge filed against the ex-minister.
Observers wonder why the AGF, as was the case in the past, is not directly involved in the prosecution of some of these high profile cases. Malami’s involvement they argued, would have shown government’s seriousness in prosecuting these cases.
They noted that while the late Chief Bola Ige was the AGF, he personally led the prosecution of some drug-related cases to prove a point that the government of the day was serious about prosecuting such cases.
They also cited the personal appearance in court of former AGF Mohammed Adoke in the trial of some petroleum subsidy cases.
Observers noted that the contrary is the case under this AGF, who, they argue, is hardly seen in court despite being urged by the former Chief Justice of Nigeria (CJN), Justice Mahmud Mohammed to lead the anti-corruption fight in court.
The former CJN had, while receiving Malami in his office on November 24, 2015, noted among others that the lacklustre attitude of government towards the prosecution of criminal cases, “especially those involving politically exposed persons or political party family members,” was a major factor hindering success in the prosecution of such cases.
Justice Mohammed particularly charged Malami to take the lead when he said: “I would likewise wish to encourage you (AGF) to display a greater resolve than your predecessors in tackling outstanding cases before the courts.
“In times past, the Attorney-General of the Federation would often lead teams of legal counsel in high profile cases so as to demonstrate the resolve of the government to enshrine the rule of law. Sadly, recent Attorneys-General have become less inclined to do this.
“I would certainly like to see you, as the Attorney-General, appear before us especially in cases of important national purport. There is the need for seasoned prosecutors to prepare and file charges before courts of competent jurisdiction so that criminal matters are timeously determined.”
Quality of investigation, evidence
Another likely reason why the prosecution has consistently failed could be the quality of investigation and evidence tendered in court. To carry out qualitative investigation and procure relevant evidence require funds and expertise.
Observers are of the view that a situation where investigating agencies are poorly funded and their personnel poorly remunerated will make them amenable to tempting offers from these criminals, who have amassed sufficient public wealth.
Are prosecutors the problem?
There is also the problem of inadequacy of hands at the disposal of the prosecution. In most instances, where the prosecution announces a list of two or five lawyers, most of who are young lawyers, the defence parades a minimum of 40 lawyers with, at least, five Senior Advocates.
Handling of judges’ arrests
Many are also of the view that the perceived hostility to the anti-corruption war by the Judiciary may have been informed by the Executive’s handling of the arrest and trial of some judges, which was seen as assuming a selective bent.
They noted that the experience has left many judges disenchanted, particularly because, while the DSS claimed to have investigated about seven judges, only three – Justices Sylvester Ngwuta, Rita Ofili-Ajumogobia and Ademola – were eventually charged to court as at June 2 when the NJC lifted their suspension.
Some observers argued that, beyond the realisation that the raid on judges’ houses was intended to intimidate the Judiciary, the AGF’s decision to withdraw the N2.2b funds diversion charge against the then Chief Registrar of the Supreme Court, Ahmed Saleh, Mohammed Sharif and Rilwanu Lawal (who are all from northern states) lend credence to the suspicion that there was more to the investigation of the judges.
Observers are of the view however, that for the Executive to make a headway in its prosecution of corruption cases, it needs to urgently reassess its mode of operation, re-examine its strategy and tighten all identified loopholes before taking any further steps.
They wonder why nothing is heard of the National Prosecution Coordination Committee (NPCC), populated by seasoned lawyers, which an initiative of the AGF, inaugurated on May 27, 2016 and charged with “the responsibility to exercise prosecutorial power independently and without any direction except of course from the learned Attorney-General who is the constitutional and prosecutorial authority in the country.”
Observers suggest that the Executive should take a second look at the advice of Justice Mohammed, who during the November 24, 2015 meeting with Malami urged government to strengthen its prosecutorial agencies if it wishes to achieve success.
Justice Mohammed said:“The quality of prosecutions presented in courts by our prosecutorial agencies must be improved upon, as they are sometimes of a standard that will never find a conviction in any court anywhere, yet, a well prepared prosecution can see to the determination of a criminal matter within a month.
“Of course, no competent prosecutor, who has filed valid charges would permit an accused to mount an interlocutory appeal, to the extent of going forth and back, sometimes twice or more to the Supreme Court, since such lapses could be injurious to the dispensation of justice.”
In a similar vein, the President of the Centre for Socio-Legal Studies (CSLS), Professor, Yemi Akinseye-George (SAN) said: “In the justice system, the output very much depends on the input. You cannot be putting in pittance in support of your prosecutorial agencies and expect that you get the desired result. The prosecutors are doing their best within the available resources, but there is limit to what they can do.
“They need support and they need to be able to protect their witnesses. So, government needs to rethink their attitude towards resourcing the anti-corruption agencies. And it is in the interest of government to do this because if you put in more resources in the anti-corruption agencies, you will be able to recover more of the looted funds.
“It is not just about throwing money there, it is also about organising the prosecutors, providing technical support for them, monitoring what they are doing and generally strengthening their capacity.”
Another Senior Advocate, Femi Falana also blamed the recent losses on poor funding of the prosecuting agencies and lack of inter-agencies synergy.
“Having reviewed the circumstances under which the corruption cases were lost by the Federal Government, I can say, without any fear of contradiction, that there is no basis for blaming the judiciary.
“It is also not a case of corruption fighting back. As far as I am concerned, the cases were lost due to official negligence and lack of inter-agency cooperation by the Federal Ministry of Justice, the anti-graft agencies and the State Security Service.
“It is obvious that the Federal Government wants to eat omelette without breaking eggs. It won’t work. Was it not because the accused persons had put together teams of senior and experienced lawyers that the government decided to set up a national prosecution agency? But, as no fund was made available to the agency, corruption cases have not been assigned to the members of the agency. With the virtual collapse of the agency, the anti-graft agencies have been left on their own,” Falana said.
An Abuja based lawyer, Abubakar Sani, faulted the CCT’s decision in the Saraki case. Sani advised Saraki not to jubilate yet, because the Court of Appeal could decide otherwise. He urged the prosecuting agencies to test these decisions in the appellate courts.
On the Saraki case, Sani said: “in my view, the most detached and impartial observer cannot but be puzzled that not even the charge of multiple payments allegedly made on a daily basis by Dr. Saraki (as many as 150 times, it is alleged) into his account with Guaranty Trust Bank was not deemed by the Tribunal to deserve at least some explanation from him.
“In my respectful view, the tribunal appeared to have observed the rules applicable to no-case submissions in the breach. This is because it not only undertook a legally inappropriate evaluation of the evidence, it went ahead to discountenance same as hearsay and to hold that the non-availability of Dr. Saraki’s statement and the investigation report were fatal. This is wrong.
“At the stage of ruling on the no-case submission, for the tribunal to have discountenanced any piece of evidence solely on the ground of general ban against hearsay evidence, was completely misconceived. This is because, Sections 37 & 38 of the Evidence Act which make that provision are not absolute, but are expressed as being qualified by any other provision, either of the Act, or any other law.
“The tribunal should have confined itself at that stage to simply determining whether or not a prima facie had been made out. I suspect that the Tribunal was swayed by the prevailing political tension in the country to render what is, to all intents and purposes, a verdict dictated more by political expediency than anything else. As a result, in my view, it bent over backwards to rely on technicalities to anchor its findings,” Sani said.