Human rights lawyer Femi Falana, SAN has accused “corrupt politicians and some senior lawyers of hijacking the criminal justice system and working together to frustrate the effective prosecution of corruption cases pending in several courts.” Falana said this in a paper presented yesterday at the 2019 Law Week of the Epe Branch of the Nigerian Bar Association, Epe in Lagos State.

In the paper titled: The Danger of Unequal Criminal Justice System in Nigeria, Falana urged “progressive lawyers to team up with other patriotic forces to ensure that all defendants are treated equally under the criminal justice system.”

Falana’s paper read in part: “Apart from two former governors, namely Messrs Joshua Dariye and Jolly Nyame the list of convicted persons is made of lowly placed individuals in the society. Owing to abuse of court process, rich defendants have continued to frustrate their prosecution with the connivance of some senior lawyers.”

“By virtue of section 17 (2) (a) of the Constitution of Nigeria 1999 (as amended), every citizen shall have equality of rights, obligations and opportunities before the law. But in practice, the rich and poor defendants are not treated equally by Nigerian courts. Apart from the fact that rich litigants have the means to hire the services of the best lawyers in any area of the law the courts are manned by judges who are not neutral in the class struggle being waged daily by the Nigerian people.”

“According to media reports the Economic and Crimes Commission (EFCC) secured 312 convictions and recovered assets worth N11.5 billion in 2018. In the first quarter of this year the EFCC recorded 192 convictions and recovered assets of N117 billion. It is indisputable that the rate of convictions has increased due to the Administration of Criminal Justice Act which has provided for the acceleration of criminal cases in all federal courts.”

“Realising that the majority of economically marginalized citizens have no access to legal representation the Federal Government has set up the Legal Aid Council to provide legal services to indigent citizens. But due to the fact that it is poorly funded, each state government has established the Office of Public Defender to ensure that underprivileged citizens are provided with legal services.”

“Notwithstanding that the Economic and Financial Crimes Commission (EFCC) has been accused by the bourgeois media of engaging in Gestapo tactics with respect to the treatment of suspects it cannot be denied that the rights of influential criminal suspects are well respected by the commission. The big men and women implicated in allegations of serious economic crimes being investigated by the commission usually receive polite letters of invitation, telephone calls or text messages advising them to contact named investigators whose telephone numbers are supplied.”

“Through such arrangement, the suspects are allowed to report themselves at their own convenience. Other suspects may decide to vamoose or brief lawyers to embark on legal measures to shield them from investigation and prosecution.”

“If and whenever influential criminal suspects report themselves they are treated with utmost courtesy by the investigators. Since they are presumed innocent until they are proved guilty by the State they are never paraded before the media, regardless of the gravity of the offence committed by them. Unlike what obtains in western countries it is infra dignitate to subject big men and women to the restraint of handcuff in Nigeria. Hence, hell was let loose when a chieftain of the Peoples Democratic Party on trial for money laundering was recently handcuffed by the Kuje prison authorities.”

“A few years ago, the Olusegun Obasanjo administration apologized in writing to a former police chief who was handcuffed by the EFCC while he was on trial for money laundering and corrupt practices to the tune of N17 billion.”

“If a VIP suspect cannot be located by the commission his relatives are never arrested. He is declared wanted and may be reported to the Interpol. However, in Benedict Peters v EFCC, a high court in the federal capital territory has ruled that the commission lacks the power to declare any suspect wanted without first obtaining a court order for that purpose.”

“It is also important to know that if the commission is going to detain a big man or woman for more than 48 hours it has to obtain a remand order from a Magistrate Court in line with the provisions of section 293 of the Administration of Criminal Justice Act, 2015. Suspects always apply to be kept in the commission’s cells since they are much more comfortable than police and prison cells!”

“Owing to unequal justice that has become the hallmark of the nation’s criminal justice system the prisons and police cells are filled with the victims of our unjust socioeconomic system. On account of prison congestion due to inadequate funding, majority of the inmates who are awaiting trial are locked up with convicted prisoners. Upon their release from dehumanising prison conditions the awaiting trial inmates and convicts team up to join criminal gangs constituted by frustrated young men and women in the larger society.”

“The criminal gangs drawn from the ghettoes in the cities are fighting back on the streets in broad daylight and in the homes of the rich and not so rich people in the dead of the night. Instead of teaming up with the victims of frustration to terminate institutionalized injustice in the land, Nigerian lawyers are using the law to defend the status quo under the rule of law.”

“The Nigerian Bar Association which does not hesitate to mobilise hundreds of lawyers to defend indicted senior lawyers and judges has not deemed it fit to extend free legal services to indigent defendants facing trial for poverty related offences in the courts.”

“It is common knowledge that Nigeria operates a double criminal justice system, one for the rich and one for the poor. Majority of indigent defendants are tried in the magistrate and area courts have no access to lawyers. Because of the gravity of certain offences indigent defendants are represented by young and inexperienced lawyers assigned to them by the State.”

“As a judicial policy under the bourgeois legal system, applications for bail on behalf of poor defendants are not always granted by trial courts on the grounds that the defendants may not be able to produce reliable persons to stand sureties for them. Even if bail is granted the conditions attached to them are hardly met as they are tied to ownership of properties by sureties. Since preliminary objections are not filed by such defendants the trial courts are able to conduct criminal cases involving them expeditiously.”

“But the defence lawyers engaged by rich defendants manipulate the criminal justice system by filing preliminary objections and interlocutory appeals aimed at delaying or suspending their trials. Applications for bail are automatically granted by trial courts while bail conditions including ownership of properties located in urban centres are easily met by politically exposed persons and other rich suspects.”

“To ensure that rich defendants do not escape from the country they are asked to deposit their passports with the courts. But since the local hospitals are ill-equipped due to the criminal diversion of the funds earmarked to maintain them the applications for the release of the passports of VIPs on trial are granted to enable them to travel abroad for medical check up or treatment. Thereafter, all manners of preliminary objections and interlocutory appeals are filed to frustrate the prosecution of rich defendants.”

“These dilatory applications are invariably granted by trial or appellate courts because the defence lawyers are leaders of the legal profession. In fact, some of them are members of the National Judicial Council and Body of Benchers. Since Nigeria operates a special criminal justice system for big men and women the publication of a so-called list of looters by the Minister of Information, Mr. Lai Mohammed recently generated a needless controversy.”

“Not unexpectedly, bourgeois lawyers and media practitioners insisted that the influential criminal suspects are entitled to presumption of innocence guaranteed by section 36 of the Constitution. It is the height of hypocrisy to accuse the federal government of violating the fundamental right of the alleged looters to fair hearing by publishing their names in a country where the names of petty criminal suspects are published while they are paraded and tried in the media by the Police.”

“On a daily basis, the homes of thousands of Nigerian citizens who are accused of petty stealing and poverty related offences are invaded by the police. Without search warrants the homes of the suspects are searched for incriminating evidence. At the end of the search the suspects are arrested without a warrant of arrest. They are taken to police stations in handcuffs.”

“At the police stations they are tortured and hauled into custody. As no police station in Nigeria has beds and bedding, suspects are made to sleep on bare floor in crowded cells. Even though bail is said to be free the price fixed by the police for every bail application depends on the nature of the offence. For instance, the price for bail in offence of stealing is a percentage of the amount involved! In the prisons, rich suspects stay in “white house” cells” which are furnished by them.

“Indigent suspects whose whereabouts are unknown are not usually declared wanted by the police. In lieu of such suspects their family members including children are arrested and held hostage. The innocent family members are not granted bail until the suspects are found and arrested by the police. Lawyers who visit their clients in police custody for the purpose of giving legal advice are subjected to harassment for interfering in police investigation.”

“Since law alone cannot curb the crisis of unequal criminal justice in the country I am compelled to invite all members of the legal profession to appreciate that Nigerian cannot guarantee law and order under the peripheral capitalist system being operated by the government. In other words, the country will not know peace without economic empowerment of the people. Instead of relying on market forces as dictated by the neo-liberal elements in the government the State should empower the Nigerian people to control the economy.”

“It is my submission that the economy of the country cannot be transformed in favour of Nigeria on the basis of the dangerous prescriptions of the World Bank and International Monetary Fund. Since all capitalist governments are violent because capitalism is an ideology of violence Nigeria cannot be an exception. Therefore, Nigerian lawyers should make a strong case for the actualization of the socio-economic rights embodied in the fundamental objectives and directive principles and set out in chapter 2 of the Constitution.”

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