The Economic and Crimes Commission (EFCC) has secured 312 convictions and recovered assets worth N11.5 billion. 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. But 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. In this presentation we shall examine the danger posed to the society by unequal criminal justice system. We shall conclude the presentation by calling on progressive lawyers to team up with other patriotic forces to ensure that all defendants are treated equally under the criminal justice system.
By virtue of section 17 (2) (a) of the Constitution of Nigeria, 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. Realising that the majority of economically marginalized citizens have no access to legal representation the State has set up the Legal Aid Council to provide legal services to indigent citizens. Owing 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.
If and whenever influential criminal suspects report themselves they are treated with 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. 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. 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 a court order. 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.
Double criminal justice system
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 trials. Applications for bail are automatically granted while bail conditions including ownership of properties located in urban centres are easily met. To ensure that they stand their trial rich defendants 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 fix 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. All manners of preliminary objections and interlocutory appeals are filed to frustrate the prosecution of politically exposed persons. 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.
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 hostages 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. The lawyers are rudely told to go and wait in court for their clients. Applications for bail submitted by lawyers are ignored by the police as the suspects are asked to apply for bail through their relatives in order to facilitate extortion.
Suspects involved in armed robbery, kidnapping and other serious offences are subjected to horrendous torture during investigation. Once “confessional statements” have been extracted from them they are paraded at well attended press conferences addressed by state commissioners of police. To corroborate the allegations contained in the text of the press conference of the police chief the suspects are asked incriminating questions by media representatives where they make incriminating statements. At the end of the press conference some of the suspects are extra judicially killed in police custody under the pretext that they are trying to escape while others are charged with armed robbery or kidnapping. Notwithstanding that the suspects are presumed innocent until proved guilty by the prosecution prejudicial stories concerning the suspects based on information obtained from the police are published by the media during the trial.
In order to ridicule the criminal justice system senior lawyers allow rented crowds in colourful uniforms otherwise called “aso ebi” to dance and sing in praise of politically exposed persons charged with looting the treasury. Even the Nigerian Bar Association recently carried the dangerous joke to the ridiculous extent of directing all lawyers in the country to boycott courts in solidarity with some influential members of the legal profession charged with money laundering, corruption, failure to declare assets and allied offences. By making a mockery of the criminal justice system Nigerian lawyers hardly realize that they are collaborating with criminal elements to subvert the rule of law and pave way for anarchy.
However, a branch of the Nigerian Bar Association has just passed a resolution banning lawyers in a particular state from appearing in any court to defend persons charged with armed robbery and kidnapping. The resolution was informed by the fact that a number of lawyers have been victims of armed robbery and kidnapping in that particular state. With respect, the resolution is illegal and immoral in every material particular. It is illegal in the sense that every person charged with a criminal offence is entitled to legal representation by virtue of section 36 of the Constitution. The resolution is immoral in the sense that lawyers have not stopped defending the highly placed criminal elements who bear responsibility for violent crimes by engaging in the criminal diversion of public funds earmarked for the provision of opportunities for young people to secure adequate means of livelihood.
Indeed, the resolution will not achieve its objective as the State is under a legal obligation to assign lawyers to indigent citizens who are charged with armed robbery, kidnapping and other capital offences but lack the means to engage the services of defence counsel.
Instead of engaging in misdirected antagonism by withdrawing services or boycotting courts to protest the atrocities of criminal gangs the Nigerian Bar Association should release that the security and welfare of the people is said to be the primary purpose of the government. Therefore, the Nigerian Bar Association should mobilize lawyers to sue the federal and state governments to refund the ransom paid to kidnappers by victims. In Mrs Dorcas Afolalu v Federal Government of Nigeria the Court of Justice of the Economic Community of West African States (ECOWAS) awarded N10 million to the plaintiff for the failure of the defendant to prevent armed thugs from killing her husband during the post election violence which occurred in Kaduna in April 2011.
No doubt, the blatant manipulation of the criminal justice system is not limited to the protection of members of the ruling class. Under the unequal criminal justice system the multinational corporations operating in the country have been conferred with illegal immunity. Hence, the branches of the Nigerian Bar Association in the oil producing communities have never asked for the prosecution of oil companies that have engaged in the pollution and degradation of the environment in the Niger Delta region. Some members of the legal profession who have accused the anti graft agencies of selective prosecution of members of the opposition have never questioned the rationale in allowing a foreign company like Siemens to continue to corner juicy contracts after its indictment by a German Court. Ditto for Julius Berger whose criminal involvement in the Halliburton scandal has not had any adverse effect on its business in Nigeria.
Unlike rich criminal suspects who are defended by hundreds of lawyers whenever they are charged with criminal offences only a handful of lawyers are prepared to provide pro bono services to economically disadvantaged citizens. In a press briefing last year, the AG of Lagos state announced that about 6, 000 Nigerian citizens were awaiting trial in prison custody due to lack of legal representation. But whenever senior lawyers and judges are charged with corrupt practices they are defended by hundreds of lawyers. The other day, a judge openly accused lawyers of intimidating her court when 90 Senior Advocates of Nigeria and their junior colleagues announced appearance for a senior lawyer who was charged with money laundering and diversion of the course of justice.
Disturbed by such blatant manipulation of the criminal justice system by senior lawyers the Supreme Court took advantage of the case of Joshua Dariye v Federal Republic of Nigeria to caution Nigerian lawyers to desist from resorting to time-wasting tactics to frustrate the trial of indicted members of the ruling class. In the leading judgment of the apex court (per Ngwuta J.S.C.) held inter alia:
“It is not the duty of learned counsel to resort to motions aimed principally at delaying or even scuttling the process of determining whether or not there is substance in the charges as laid. In my view, this motion is a disservice to the criminal process and a contemptuous lip service to the fight against corruption. The tactics employed here is only one of the means by which the rich and powerful cripple the criminal process. There are cases where the accused developed some rare illness which acts up just before the date set for their trial. They jet out of the country to attend to their health and the case is adjourned. If the medical facilities are not available locally to meet their medical needs it is only because due to corruption in high places the country cannot build proper medical facilities equipped with the state of the arts gadgets. There should be no clog in the process of determining whether or not a person accused of crime is guilty irrespective of his status in the society.”
In tracing the genesis of the gross abuse of the process of the court to frustrate the trial of criminal cases involving rich defendants, Rhodes-Vivour J.S.C. had this to say:
“It has been the practice since the third Republic commenced in 1999 for well to do individuals who face criminal cases, to ensure such trials never proceed. This is done by filing in court relevant and irrelevant applications, appeals all designed to stop the trial from proceeding to conclusion. This is a disturbing trend that has been allowed to fester for too long. The courts should rise and stop this disturbing trend in our criminal justice system. Happily, both courts below and this court have done so in this case.”
In his own contribution to the judgment, Nweze J.S.C. berated politically exposed persons and their counsel for deliberately delaying their criminal trial when he rightly observed thus:
“I have noticed a worrisome trend in most recent time, particularly among politically exposed citizens of this great country, imagining that they are above the laws of the land, have perfected some awkward and graceless tactics of delaying their trial when they run into conflict with our penal statutes”.
It is high time that Nigerian lawyers joined other common law countries by preventing the rich and powerful individuals and corporate bodies from hijacking the criminal justice system. For instance, the independent counsel, Mr. Robert Mueller, who investigated the alleged hacking into the 2016 Presidential election in the United States of America, has indicted, convicted or got pleas from 34 people and companies including top advisers to President Trump. This would have been impossible in Nigeria as a lawyer to one of the suspects would have applied for and obtained a court order of perpetual injunction restraining the independent counsel from arresting, investigating and prosecuting anyone linked to the subject matter of the probe. In fact, all applications made by the Independent Corrupt Practice and Other Related Offences Commission and non state actors for the appointment of independent counsel to probe alleged corrupt practices of some state governors pursuant to Section 52 of the ICPC Act have been turned down by the office of the Chief Justice of Nigeria.
The way forward
To decongest the prisons in the country the Chief Justice of Nigeria, the Chief Judges of the states are empowered by section 1 of the Criminal Justice (Release from custody) Special Provisions Act to visit the prisons and order the release of inmate who ought not to be detained in prison custody. Similarly section 34 of the Administration of Criminal Justice Act, 2015 has imposed on duty on Chief Judges to designate Magistrates to conduct monthly visits to all police stations in their respective areas of jurisdiction. The Chief Judge of Lagos state, the Honourable Justice Opeyemi Oke acceded to the request made by our law in December 2018 to designate Magistrates to visit all police stations in Lagos state on a monthly basis.
Owing to the success of the policy in Lagos state former Chief Justice Walter Onnoghen directed other Chief Judges in the country to appoint Magistrates to visit police stations with a view to releasing illegally detained people or grant them bail. It is hoped that the remaining 123 branches of the Nigerian Bar Association will emulate the Ikorodu and Epe branches in Lagos state by ensuring that Magistrates are accompanied during such prison visits. Another initiative which ought to be embraced by Nigerian lawyers is the Practice Direction made pursuant to the Administration of Criminal Justice 2011 by the Honourable Oke to address the indiscriminate imprisonment of poor people. Under the Practice Direction the judiciary has established Criminal Restoration Centre to serve as a mediation for the resolution of minor criminal offences.
According to the Chief Judge of Lagos state “petty offenders will be diverted to the Restoration Centres where non-custodial sentences, including fines, restitution orders and community service orders would be used as long as they are willing to take responsibility for their actions”. In justifying the centre her Ladyship had this to say:
“Today in Nigeria we have seen countless cases where defendants are arrested for minor offences such as burglary and wandering; they are locked up in our prisons for the flimsiest reasons to join the teeming population awaiting trial inmates. In fact, the awaiting trial inmates account for more than 75 percent of the inmates in prisons today. They are in our prisons with hardened criminals and by the time they come out they have been initiated into a life of crime and are ready to spreads terror, death and destruction in their post-prison escapades.”
Since law alone cannot curb the crisis of unequal criminal justice in the country I am compelled to invite Nigerian lawyers 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 neoliberal 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 against the people, 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.
Permit me to conclude this Keynote Address with the cautionary words of the Late Akinola Aguda who once said:
“In a developing country like ours, as long as a small minority of the citizens command an over-whelming proportion of the wealth and the means for the acquisition of the capital of the country so long as any hope of justice for the teeming millions will continue to elude us. It appears clear that whilst millions of our people are living either below or just near starvation level and thousands are jobless, justice can only be the preserve of those few who have the surplus capital to pursue the same.”
Practical Considerations to Negotiate an Enforceable Joint Operating Agreement in Civil Law Jurisdictions (Netherlands: Kluwer Law International, 2020) By Professor Damilola S. Olawuyi, LL. B (1st Class), BL (1st Class), LL.M (Calgary), LL.M (Harvard), DPhil (Oxford), Professor of Law and Deputy Vice-Chancellor, Afe Babalola University, Ado Ekiti, Nigeria, www.damilolaolawuyi.com. & Professor Eduardo G. Pereira, LL. B (Brazil), LL.M (Aberdeen), PhD (Aberdeen),www.eduardogpereira.com
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