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ANTI-CORRUPTION: FRESH STRATEGIES NEW INITIATIVES:

“ADOPTING STRATEGIES FOR SPEEDY DISPENSATION OF CORRUPTION CASES”

BEING THE TEXT OF AN ADDRESS DELIVERED

BY

CHIEF GODWIN O. OBLA, SAN, FCIArb.

AT THE 2015 ANNUAL GENERAL CONFERENCE OF THE NIGERIAN BAR ASSOCIATION

THEME:’ LAWYERS AND NATIONAL DEVELOPMENT’

24TH AUGUST 2015

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INTRODUCTION

As members of the legal profession we are frequently confronted with some

mindboggling details of corruption that occur in our national life. This is perhaps

attributable to the fact that Nigeria is perceived as having one of the most

corrupt public service sectors (with its transparency rated at 27%). To emphasize

this sad state of affairs, in 2014, Nigeria ranked 136 out of 175 countries on the

Transparency International Global Corruption Perception Index1.

I have briefly set out below the challenges encountered in the prosecution of

corruption cases drawing from my personal experience as a prosecutor for the

EFCC and the CBN, amongst other agencies of government, and strategies I

believe will greatly assist the nation in curbing the menace of corruption and

fast track the trial process, if adopted. The reason for this is simple: there can be

no discussion of the strategies without highlighting the challenges militating

against the speedy dispensation of corruption cases.

CORRUPTION- A DEFINITION

To start with, it is important to set out an operational definition of the term

“corruption” and its meaning within Nigeria’s peculiar social and economic

milieu.

Corruption is a complex social, political and economic phenomenon2. There is

no single, universally accepted and comprehensive definition of corruption.

Attempts to develop such a definition invariably encounter legal, criminological

and, in many countries, political issues. Broadly, the following are identified as

acts of corruption: bribery, embezzlement, fraud, intimidation, extortions, and

1 < http://www.transparency.org/country#NGA> 2 (http://www.unodc.org/unodc/corruption.html)

See Types of Corruption at http://www.anticorruption.info/types_levels.htm (Accessed:

16/8/15).

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abuse of power. The rest are: conflict of interest, insider trading, receiving an

unlawful gratuity, favouritism, nepotism, illegal contributions, money laundering,

identity theft and white-collar crime.3

Corruption may however be operationally defined as the misuse of entrusted

power for private gain4.

Roberty Witgaard has summarized the key ingredients of corruption in the

following simplified formula: Corruption= Monopoly + discretion-Accountability!

In other words, the opportunity to engage in corruption increases with the

degree of control government officials and politicians have over goods or

other assets valued by the private sector and with the degree of discretion the

officials and politicians have in allocating those things5.

Cross-border corruption may be defined as corrupt practices, afflicting both the

private and public sectors, which transcend national geographical territory, in

contravention of national or transnational laws, involving individuals, body

corporate and in some cases politically, exposed persons (PEP). Examples

include: Embezzlement, nepotism, bribery, money laundering, misappropriation,

mismanagement, gratification, bid rigging, e.t.c.

This problem is however not restricted to the public sector alone. There have

been several instances of embezzlement, money laundering and other corrupt

practices in financial institutions and Oil Exploration companies, amongst others.

The World Bank introduces the private sector into its definition. By capturing the

private sector in its definition, the Bank refocuses attention on corruption on a

much larger scale. The Bank in its definition states that

3 Ibid.

4 (http://www.unodc.org/unodc/corruption.html) 5 K Elliot, “The Problem of Corruption : A Tale of Two Countries” 18 NW. J. Int.. K and Bus. 524

1997-1998 at 525.

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“Corruption involves behaviour on the part of officials in the public and

private sectors in which they [public and private officials] improperly and

unlawfully enrich themselves and/or those close to them, or induce others

to do so, by misusing the position in which they are placed”. 6

As far back as 1999, the United States Office on Drugs and Crime (UNODC) had

estimated that about $400 billion had been plundered from Nigeria’s coffers

since it obtained independence in 1960, most of which remains unrecovered.

According to Tim Daniel, Country Director of the UNODC at the time, the figure

for the amount looted from the treasury annually stood in the region of $110

billion.

It is instructive to note that not every shade of corruption attracts criminal

liability. Only the category of corruption which qualifies as crime may be

prosecuted under Nigerian law. Section 36(6)(12) of the 1999 Constitution of the

Federal Republic of Nigeria (as amended) vis-à-vis persons charged with

criminal offence states that; “ … a person shall not be convicted of a criminal

offence unless that offence is defined and the penalty therefore is prescribed in

a written law …”.

An act may be morally reprehensible but until and unless there is a law which

makes that act punishable and which goes ahead to prescribe the punishment

for it ,a Judge, any court of law is hamstrung to sentence and punish the

perpetrator . (Per Aderemi JSC in DAPIANLONG V. DARIYE (2007)8NWLR (Part

1036)SC 332 at paras. A-B)

6 See “Corruption Definition” at http://www.anticorruption.info/corr_def_alt.htm (Accessed: 12/11/07).

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PROSECUTORIAL CHALLENGES

These challenges can be found in both the Public and Private Sectors-There is

an erroneous tendency to restrict it to the Public Sector. I have summarized

some of these practical challenges as follows:

1) Lack of Political Will on the Part of Government:

“The incidence of corruption in Nigeria has increased and is still

increasing; this must be critically curtailed. This dream can only become a

reality if there is a change of heart under a new leadership by glaring

examples at all levels”

(Allison A. Ayida: ‘Rise and Fall of Nigeria’: Power without Corruption in

Nigeria...’1990, Chapter 25 page 37)

Over the years, successive administrations have failed to demonstrate the sort of

political will that is required to effectively fight corruption. Even in instances

where the agencies responsible for prosecuting allegedly corrupt persons

seemed to be alive to their responsibilities, their motives have often being

interpreted in the light of being a selective witch-hunting of political enemies of

the government of the day.

Government at all levels must muster the will required to ensure the prosecution

of its friends, allies or supporters where they breach the law and should not

interfere with the work of the law enforcement agencies or the Attorneys-

General of the Federation and States in this regard. There must be no sacred

cows or “untouchables”.

This would, in turn, make the prosecution of Politically Exposed Persons (PEPs)

much easier.

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2) Weak Mutual Legal Assistance Regimes: This may arise from the following

situations:

a) Location of the Evidence in the Criminal case in foreign jurisdiction-

Example: the SIEMENS, TSKJ cases.

b) Difficulty and in some cases unwillingness of witnesses outside jurisdiction

to return for the trial- Example: the SIEMENS, PANALPINA prosecutions.

c) Illicit proceeds moved and laundered in an international Banking system

through increasingly obscure means.

d) Slowness of the MLA process:

“As well known, the main weakness of mutual assistance in penal

matters as a tool for assets tracing and recovery is its slowness.

Even in the most cooperative jurisdiction s, it takes at least one year

until the documentary evidence relating to transfer of the proceeds

of crime is transmitted to the requesting authority. In most cases, it is

then too late to trace the assets to other jurisdiction in time to freeze

them.”7

4) Immunity against prosecution for Categories of Politically Exposed Persons:

Section 308 (1) of the 1999 Constitution of the Federal Republic of Nigeria

Section 308(1) puts restrictions on legal proceedings, arrest or imprisonment,

or the compelling of appearance by process of court, against the President,

Vice-President, Governors and Deputy Governors. (See the case of

FAWEHINMI v. I.G.P.(2002)7NWLR(Pt.767)606)

This restriction makes it impossible to arrest or prosecute these officials until

after their tenures, when the illicit funds or assets have either been dissipated

or laundered.

7 ENRICO MONFRINI: “The Abacha case” “Recovering Stolen Assets”(Mark Pieth ed Peter

Lang,Bern,2008)

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5) The legal infrastructure and the slow and laborious judicial process: Accused

persons and Counsel take advantage of every conceivable technical

loophole to prolong the prosecution subjecting the appellate process to

abuse even in interlocutory matters thereby frustrating the entire process.

“I have to put it on record that the desire of the judiciary to curb the now

notorious attitude of some legal practitioners and politicians faced with

very bad cases to employ delay tactics to either defeat the ends of

justice or postpone the evil days , needs the encouragement of all well-

meaning legal practitioners, particularly the very senior members of the

profession.(Per ONNOGHEN,JSC in Dapianlong v. Dariye (2007)8NWLR (Part

1036)332 at 415 -416,parasG-D)

Furthermore, our criminal justice system which we inherited from England and

Wales favours the accused person and puts a high burden of proof on the

accuser. No wonder our grundnorm, the 1999 Constitution, provides that:

“Every person who is charged with a criminal offence shall be

presumed to be innocent until he is proved guilty”8

The point of contention has always revolved around the question of whether,

given our peculiar socio-political circumstances, we should rely on the same

tenets of criminal justice as that of the United Kingdom with a transparency

ranking of 78%. Proving corruption cases in a country fraught with financial crime

and a dearth of accountability and data to prove paper trail and build a case

against the accused should call for a lower burden of proof.

Yet another example of the delays that afflict the system would be the

arraignment of accused persons. The Federal High Court (Civil Procedural) Rules

2009 Practice Direction provides in Section 3 (b) as follows:

8 Section 36 (5) 1999 Constitution (As Amended)

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‘On the date of the 1st arraignment the prosecutor must produce the

accused person in Court”

In trials such as the Pension Fraud cases in which I was involved as Prosecutor,

there were at least 20 accused persons (both natural and artificial persons) on a

single charge sheet, the Prosecution had to produce all those persons in Court

on the date of the 1st arraignment. This procedure, intended for the purposes of

fair hearing, creates a bottleneck when a Prosecutor needs to gather all

accused persons on the same day, and at the same time. There have been

numerous instances when arraignment has been delayed time after time due to

the inability to secure the presence of accused persons. It is practical

knowledge that accused persons would be ambivalent about their

arraignment- after all, they are not being invited to a party!

Still on the subject of securing the presence of witnesses, there are instances

where securing prosecution witnesses poses a challenge. Attempting to secure

the presence of say, bankers, sometimes is an uphill task –even when they have

been subpoenaed by the Court. A compulsory order of a court such as a

subpoena ad testificandum translates into a begging expedition – and this

inadvertently slows down the dispensation of the matters. Though the EFCC are

rather efficient and do a reasonable job of speeding up the trial process,

cooperation is needed from both ends of the table.

6) INTERLOCUTORY APPEALS AND STAY OF PROCEEDINGS

It is not uncommon to see defence lawyers filing all sorts of interlocutory appeals

and seeking a stay of proceedings in the substantive trial, for the sole purpose of

stalling a criminal trial before a lower court. This practice has been deprecated

by the Courts in a number of cases such as ALAMIEYESIEGHA v FRN (2006) 16

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NWLR (Pt. 1004) 1 and ABUBAKAR AUDU v. FRN (2013) 16 NWLR (Pt. 1004) 1, to

name a few.

In TIMPRE SYLVA v. FRN (2014) LPELR-23964 (CA) 20, paras B-G, the Court of

Appeal commented on the grant of stay of proceedings in a criminal trial

generally, as follows:

"Consequently, the court's general practice is that a stay of proceedings

should not be imposed unless the proceedings beyond all reasonable

doubt ought not to be allowed to continue.' NIKA FISHING CO. LTD. v.

LAVINA CORP. (2008) 16 NWLR (Pt.1114) 509. It is not enough in the

considered opinion of this court to merely challenge the jurisdiction of the

lower court, and hope that act in itself is enough to guarantee the grant of

the prayer to stay proceedings; a stay cannot be granted where in the

circumstances of the case doing so will offend the court's sense of justice

and probity; it this reason that this court held earlier that: "The grant of a

stay of proceedings involves a consideration of all the circumstances of

the case concerning the litigation including the conduct of the parties and

the effect of the application."

In response to the problem of stalled criminal trials as a result of the filing of

interlocutory appeals, Section 40 of the EFCC Act expressly restricts any party

from applying for a stay of proceedings until judgment is delivered. It provides:

“Subject to the provisions of the Constitution of the Federal Republic of

Nigeria, 1999, an application for stay of proceedings in respect of any

criminal matter brought by the Commission before the High Court shall not

be entertained until judgment is delivered by the High Court.

Even more importantly, the promulgation of the Administration of Criminal

Justice Act 2015 appears to have conclusively settled this vexed issue. Section

306 of the Act provides:

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“An application for stay of proceedings in respect of a criminal matter

before the court shall not be entertained.”

The sum total of the effect of the provisions cited above is that accused persons

no longer have the luxury of stalling or suspending their trials as was the case

before.

6) Legislative Inertia: Non passage of the “Non-Conviction Based Asset

Confiscation Bill” by the Nigerian National Assembly.

The power of confiscation allows police to confiscate money and assets

without having to prove any criminality. The police could apply to civil courts

to seize cash, cars, yachts, even houses, and hand them over to the treasury

merely on the suspicion that they are proceeds of crime. The test would be

on the “balance of probability” (civil standard) and not beyond “beyond

reasonable doubt” (criminal standard)9 :

7) Threats to lives of witnesses and absence of witness protection programme

According to an EFCC Report, not less than 19 key officers of EFCC have

been assassinated, as at 201310. This is hardly surprising when viewed in the

context of the high-risk, low-protection nature of their operations and the

desperation of some of the subjects of investigation.

The absence of this witness protection plan also inhibits the ability of the

prosecutors and law enforcement agencies to elicit or extract crucial

testimony from potential witnesses.

9 Confiscation of the Proceeds of Corruption; by Taiwo O. Olaleye-Orueme-Journal of financial

Crime 2000. 10 (EFCC Report{S.A.E.} 2013)

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8) Inconsistency and Uncertainty of the Judicial Process

Increasingly, the pronouncements of Courts of coordinate jurisdiction on

certain matters relating to the prosecution of corruption cases have been

inconsistent or even contradictory. This is a major problem because it

significantly complicates, prolongs or stalls criminal prosecutions.

For instance, with respect to the prosecution of Erastus Akingbola, the former

MD/CEO of the now-defunct Intercontinental Bank, before the Lagos High

Court on a charge of obtaining money by false pretenses and advanced fee

fraud running into several billions (Erastus Akingbola v. FRN (2014) LPELR)-

24258 (CA) , the Court of Appeal set aside the decision of the lower court

and struck out the Charge on the grounds that it is only the Federal High

Court that has jurisdiction to try matters relating to “capital market

transactions”, having regard to the provisions of Section 251 of the 1999

Constitution. Hear the Court:

“These facts do not support the charge of stealing simpliciter but a

much more complex multifaceted banking, financial issues

interwoven with capital and companies & allied matters law which

the lower court cannot deal with; it will be leaving its comfort zone

of jurisdiction and swimming in unknown waters.

As the Appellant rightly submitted, the purchase or non-purchase of

the shares is an integral part of the Counts against him, and the

falsity or otherwise of the alleged pretences, will depend on whether

the shares were purchased or not by the said Company on behalf of

the said Bank. These are issues that can only be verified by the

Federal High Court, and being capital market transactions are

within its exclusive jurisdiction.”

The Appellant was already standing trial at the Federal High Court

before he was taken to the State High Court to face a Charge of

stealing. In Nwosu's Case, this Court went below the surface of the

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said Counts, and excavated the roots on which the allegation of

stealing sprang from, only to find that there was nothing connecting

it to the State High Court. We have a similar situation; the case

before the lower Court is riddled with matters for which the Federal

High Court has exclusive jurisdiction, and there is no way a charge

of stealing can stand without evidence that can only be looked into

and determined solely by the Federal High Court. The long and short

of it is that the lower Court fell into serious error when it failed to

abide by the decision of this Court in Okey Nwosu's Case, and in

clear terms, this issue must be resolved in favour of the Appellant.”

It is pertinent to note that the Charge filed against Erastus Akingbola bordered

strictly on acts of stealing perpetrated by the accused person on the property

and funds of the now-defunct Intercontinetal Bank Plc and its depositors &

shareholders of several sums totaling over £10million and over N2.5 billion

respectively. The fact that this acts of stealing involved the fraudulent

manipulation of shares is immaterial and ought not to have deprived the Lagos

High Court of jurisdiction, as held by the Court of Appeal.

Still on this jurisdictional issue, in the case of EHINDERO v. F.R.N (2014) 10 NWLR (Pt.

1415) 281 decided in the same year, the same Court of Appeal (albeit the

Abuja Division) appeared to have made a complete volte-face. The appellants

in this case had been charged before the lower court on several counts of

corrupt enrichment of a sum of over N300million from a total sum of about

N550million donated by the Bayelsa State Government to the Police Force for

the purchase of equipment. A component of the charge related to the fixing of

the donated funds in interest-yielding accounts in Wema Bank Plc. The interest

on that transaction was in excess of N9million, which the prosecution alleged

was converted by the appellant to his personal use.

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Surprisingly, the Court of Appeal, in dismissing the Appeal and remitting the case

to the FCT High Court for trial, held at 304 PARAS C-D thus:

“There is no provision in section 251 of the 1999 Constitution which grants

“exclusive” jurisdiction to the Federal High Court in criminal causes or

matters.”

The question that logically arises here is: if a Charge of stealing relating to

monies fixed in Banks and the receipt of interest therefrom, subject to banking

rules, does not deprive the State High Court of jurisdiction to hear the matter as

was held in EHINDERO’s case, why would stealing relating to conversion of bank

shares and receipt of illegal credit facilities do so, as held by the Court of

Appeal in ERASTUS AKINGBOLA v. FRN (SUPRA)?

This sort of judicial inconsistency impedes the ability of the State to effectively

prosecute corruption cases and often results in the waste of public resources on

convoluted trials and appeals.

9) INADEQUATE RESOURCES: High cost of retaining the requisite team of experts

for the prosecution of persons accused of committing cross-border

corruption.

The institutions saddled with the responsibility of investigating and prosecuting

white collar crimes in Nigeria often experience a dearth of operational funds

and appear to be at a comparatively disadvantaged position to their foreign

counterparts. A classic example of this is the James Ibori Case. In 2012, the

Crown Metropolitan Police of the UK spent an estimated £14 million to

investigate and prosecute James Ibori in the UK on the basis of information

supplied by the EFCC11. By comparison, the entire budget of the EFCC for the

2012 fiscal year stood at a comparatively paltry N 15 Billion (about £47m).

11 See < http://www.punchng.com/news/iboris-conviction-cost-n4-4bn-senate/> Last Accessed

29 February 2015.

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The amount expended on the prosecution of James Ibori by the UK

Government therefore represents about 35% of the budget of the EFCC- an

Agency required by law to investigate 36 States, 774 Local Government Areas

and a host of Ministries, Departments and Agencies, in addition to the private

sector.

STRATEGIES FOR SPEEDY DISPENSATION OF CORRUPTION CASES

Having set out some of the practical challenges encountered in the fight

against corruption, I will now examine a few strategies which can assist in

mitigating these challenges.

1. STRENGTHENING THE MUTUAL LEGAL ASSISTANCE PROCESS

Mutual legal assistance is a process by which states seek and provide assistance

in gathering evidence for use in the investigation and prosecution of criminal

cases. Forms of assistance covered by MLA typically include the power to

summon witnesses, to compel the production of evidence and other relevant

documents, to issue search warrants and to serve process. Mutual legal

assistance

(MLA) has intensified in recent years in response to emerging global threats such

as terrorism, organized crime and corruption. In times of economic globalization,

criminal networks expand their activities across borders, taking advantage of

offshore centres to launder the proceeds of their crimes and seek safe haven in

foreign jurisdictions. Corruption cases often –and increasingly- involve a

transnational element as well; For example, in the case of foreign bribery,

especially in respect of transnational cases; or when corrupt officials conceal

evidence and embezzled funds abroad.

In this context, MLA is recognized as critical for effective prosecution and

deterrence of corrupt practices and a variety of agreements have been

entered into by Nigeria with several countries in recent years to facilitate

international cooperation in this area. Yet, borders remain a major obstacle for

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law enforcement authorities in Nigeria to gather evidence and bring successful

criminal proceedings as they are bound by the principle of sovereignty and

can’t conduct investigations on the territory of another State. I have already

given the example of the impediments to the successful investigation and

prosecution of persons involved in the SIEMENS, TSKJ and HALLIBURTON scandals,

principally as a result of weak mutual legal assistance between the Nigerian

authorities and the other countries involved.

In addition, Nigeria must develop and strengthen the capacity of the judiciary

and the legal infrastructure in place to effectively address transnational bribery

and money laundering issues. Many developing countries, including Nigeria, do

not have this domestic framework in place and lack basic human and financial

resources, expertise, and legal infrastructure to effectively tackle money

laundering.

In the absence of an adequate domestic framework, international cooperation

could provide an option to track illegal funds that have been transferred and

laundered in other countries. For example, MLA could be particularly useful in

the case of money flowing outward from this country to countries with

developed resources and capacity to effectively fight money laundering. In

such a case, the partner country that has stronger instruments, systems and

capacity in place to deal with money laundering can assist Nigeria and

contribute to build its capacity through the provision of MLA. The best approach

to do so effectively would be to set up an arrangement such as a joint

operation or a task force in which the stronger country can boost the weaker

one’s capacity rather than relying on the country’s weak system for MLA.

2. PLEA BARGAINING:

Plea Bargains (including synonymous arrangements like Settlement Agreements,

Negotiated Settlements and Non-Prosecution Agreements) have emerged over

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the past few decades as an integral component of the criminal justice system, in

part due to the need for speedy dispensation of justice and also to achieve the

purpose of depriving convicted criminals of the proceeds of crime. Perhaps the

greatest attractions for States seeking to enforce domestic law using these

arrangements are its speed and relative cost-effectiveness as litigation in

criminal cases typically tends to be a long and convoluted process.

Conventional criminal trials are especially cumbersome in jurisdictions where a

higher evidentiary burden is placed on the prosecution, like Nigeria.

Furthermore, while petty criminals (for want of a better expression) can scarcely

afford accomplished and highly-skilled defence lawyers, persons accused of

white collar crime often can. These defence lawyers often manipulate the

criminal justice system in favour of their clients- with cases dragging on for

months (or even years), at great expense to the State.

In addition to existing elaborate trial procedures therefore, States within the

modern legal order have evolved alternative mechanisms to punish crime. The

plea bargain is one of such alternative models. In lieu of trials, individuals

charged with crimes are offered various inducements to either confess their

crimes or plead guilty to them; with a confession generally shortening the length

of the trial and a guilty plea completely obviating the need for one. Expectedly,

this prosecutorial model has become hugely popular across several jurisdictions.

For instance, it is estimated that 95% of cases in the US are resolved by the Plea

Bargain arrangement alone12.

The practice of plea bargaining in Nigeria has however had a checkered

history. The origin and legality of the concept under Nigerian law has historically

been viewed with suspicion by the Judiciary13, as is evident in the sentiments

12

R Lippke The Ethics of Plea Bargaining (Oxford, 2011) 1 13 T Adekunle, ‘Plea bargaining and the Nigerian penal system: Giving judicial imprimatur to

corruption’ (2013) 1 New Ground Research Journal of Legal Studies Research and Essays 10-17.

Available here: <http://www.newgroundresjournals.org/journals/NGRJLSRE>

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expressed by a former Chief Justice of Nigeria, Justice Dahiru Musdapher, who

stated that:

“When I described the concept as of “dubious origin‟, I was not referring

to the original “raison d’être‟ or the judicial motive behind its conception

way back either in the United States or England in the early 19th century, I

was referring to the sneaky motive, if not, behind its introduction into our

legal system, then evidently in its fraudulent application; I have said that

our wavering disposition on the ethical standard set by your noble

profession or jeopardizes our peace, security and progress”14.

Whilst there was initially some debate within the legal profession about the

legality of this practice as it applies to Nigeria, the general attitude appears to

have changed radically and certain senior members of the profession who were

hitherto opposed to its implementation seem to have embraced it in all its

ramifications. For instance, Professor Itse Sagay SAN, who was only recently

appointed by President Muhammadu Buhari to Chair the Presidential Advisory

Committee Against Corruption, had previously aligned himself with the position

of the ex-CJN by stating, sometime in 2012, that:

“The CJN, I believe, has not said plea bargaining is bad in principle. The

way the EFCC is using it is corrupt. The CJN must have his reasons for

saying that they are using the whole concept in a corrupt manner and

that is why he (CJN) is angry with it.”15

However, Professor Sagay’s position appears to have benefitted from a change

in recent times. In the aftermath of his appointment in 2015 as Chairman of the

Committee against corruption, he was quoted as saying:

14 The Nigerian Tribune of 16 November 2011 15

http://www.vanguardngr.com/2012/03/why-plea-bargain-is-necessary-agbakoba-sagay-clarke-others/#sthash.0hp1eySV.dpuf

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“And anyone who knows that his hands are dirty, should come out and

confess. I am sure, certain lenient terms can be obtained by him, but let

them not hide under the cloak of selectivity ignoring that their hands are

deep red with guilt.”16 (Emphasis supplied)

Surely, this is a tacit endorsement of the plea bargain arrangement which has

been criticized in the past. The statement also appears to be an indication of a

paradigm shift in our legal profession away from the conventional prosecutorial

style, with all its attendant difficulties, to a system that hits at the proceeds of

corruption, whilst also securing conviction at minimal cost to the State.

*To digress a little, it is unclear what the mandate of the Presidential Advisory

Committee Against Corruption headed by Prof. Sagay is, or under what law it

was created. If its role was designed to be complementary to that of the law

enforcement agencies already established by law (i.e. the EFCC, ICPC, Police,

Code of Conduct Bureau etc.), It is difficult to see how such a role will be played,

having regard to the fact that these organizations have powers conferred on

them by law, trained personnel, and years of practical experience dealing with

matters of corruption. It appears to be, at best, an adhoc body of individuals

lacking any powers of investigation or prosecution.*

In practice, it used to be the case that as a result of the absence of any express

provision in or laws establishing the plea bargain arrangement, the relevant law

enforcement agencies relied generally on the provisions of Section 180(1) of the

Criminal Procedure Act (which generally allows a prosecutor withdraw a charge

where a conviction has been secured on another charge) and Section 14(2) of

the EFCC Act 2004 (which allows the EFCC to compound offences) which are

somewhat vague on the subject. Notwithstanding these doubts surrounding the

legality of the plea bargain arrangement, it was applied successfully in a long

16

http://newshubnigeria.com/return-stolen-funds-professor-sagay-encourages-looters/

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line of cases, prominent among them the prosecution of Bank Chiefs

undertaken by the CBN in conjunction with the EFCC.

Thankfully, this ambivalence has been expressly addressed by the express

inclusion of plea bargains in Section 270(1) of the Administration of Criminal

Justice Act 2015 passed earlier this year, which permits a prosecutor to seek a

plea deal in exchange for a guilty plea and forfeiture of assets.

Therefore, the coast is now clear for the State to use this very important tool to

shorten the duration of criminal trials and to expropriate the proceeds of crime

or illicit activity.

Very quickly, the four ingredients of settlement/plea-bargaining are as follows:

The offender is charged. In some cases, some organizations initiate

settlement moves as a prelude to being charged.

The offender pleads guilty

The offender agrees to pay monetary fines among other terms

The terms of the agreement are kept confidential, subject to

exceptions woven into the agreement.

3. THE ADMISSIBILITY OF IMPROPERLY OBTAINED EVIDENCE

Section 14 of the Evidence Act 2011 (as amended) provides for the use of

improperly obtained evidence in criminal trials.

This is an extremely important provision which would doubtlessly help in

navigating the needless technical challenges to the admissibility of electronic

and other forms of evidence because prosecutors now have a wider latitude to

tender documents obtained in the course of their investigations, whether or not

they were properly obtained.

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4. Retirement, Elevation or Death of Judges should not affect ongoing

criminal trials.

Judges’ retirement or elevation (and, in certain and consequent

commencement of trial de-novo are also reasons corruption trials are

unnecessarily prolonged. Lawyers are not to blame, however. This major

institutional drawback can be remedied with new policies for the Bench that

would favourably consider the delay of criminal trials with a view to clamping

down lengthy trials and absconding witnesses. It is suggested here that the

Practice Directions of the different courts of record be amended to include a

provision that where for any reason a Judge in charge of a criminal trial retires or

is otherwise elevated, the trial should be allowed to continue with a new Judge

upon the records and processes already before the court.

5. INVESTIGATION

Often, law enforcement agencies, in a bid to pander to public sentiments or to

assuage the public’s demand for action, hurriedly arraign persons suspected of

engaging in corruption in the full glare of the media. These rushed trials often

come at the expense of the conduct of thorough and complete investigations

by the law enforcement agencies responsible before filing of the criminal

charges as obtainable in the US, UK and other jurisdictions. As a result, majority of

the trials of politically-exposed persons are unable to sustain the required tempo

and the evidentiary burden on the prosecution becomes more difficult to

discharge.

The Federal High Court (Criminal) Practice Direction 2013 appears to have been

introduced to deal with this problem. Paragraph 3 of the said Direction provides

that:

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“a. The complainant shall not file a charge unless it is accompanied by an

affidavit stating that all investigations into the matter had been concluded

and in the opinion of the prosecutor, a prima facie case exists against the

accused person;”

How successful this provision has been in ensuring that criminal trials are not

commenced without the required depth of investigations is up for debate.

However, it is clear that the conduct of thorough investigations into a matter

before arraignment allows the State pursue the conviction of criminals and the

confiscation of their assets with more vigour and speed, which in turn

significantly minimizes the cost and duration of any resulting criminal trial.

It is suggested here that in addition to the requirement imposed by Paragraph 3

(a), the Practice Direction should also stipulate that apart from the evidence to

be frontloaded at the stage of filing the Charge, no other evidence can be

introduced by the Prosecution in the course of trial, with an exception made in

respect of facts or information that have only just come to light or could not

reasonably have been foreseen at the time of filing the Charge. This would

ensure that law enforcement agencies completely exhaust their investigations

and gather sufficient evidence to secure a conviction before filing any criminal

complaint.

Furthermore, despite the challenges stated above, the prospects of improved

prosecution of corruption cases appear to be capable of improving

considerably, if the following measures/reforms are carried through:

1) Remove the immunity clause as it relates to charges of corruption as

recommended by the Commonwealth Working Group 2005.

2) The retention of highly skilled and resourceful prosecution Counsel.

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Thankfully, the prosecutorial challenges faced by the government are being

addressed by the hiring of senior and experienced counsel from the private

sector to drive prosecution involving serious cases .E.g. Central Bank of Nigeria in

Cooperation with the EFCC retained formidable legal teams to prosecute the

Banking crises suspects while the Federal Government of Nigeria outsourced the

TSKJ, SIEMENS, Julius Berger and related prosecutions.

3) Improvement of the access of citizens to information

The passage of the Freedom of Information Act 2011 and the Proactive Judicial

disposition towards the Act has assisted Civil Society Organizations to garner

information which they act upon. However, as earlier mentioned, the

bottlenecks created by officials of the Bodies responsible for providing the

information must be urgently addressed through sensitization and strong political

will of the government.

4) The judiciary should be sensitized to place greater emphasis on substantial

justice over technicalities.

“Finally, if the Nigerian Nation has taken decision to eradicate and fight

corruption, legal technicalities should not constitute a roadblock to that

effort. For the essence of the law is to preserve, and protect the economic,

political and social well-being of the state and its citizenry. Any

interpretation ascribed to any statute that fails to conform to this value

must be ignored since that will suggest enthronement of anarchy”-Per

Galinje,J.C.A. (F.R.N.v.Fani-Kayode(2010)14NWLR(Pt.1214).481 at page

500,paras.A-F. )

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CONCLUSION

Even though the fight against corruption appears to be an uphill task, it is my

view that the eradication of this scourge is achievable with the right political will

coupled with the application of the practical strategies highlighted above.

All Nigerians, including members of the Bar, must join hands to ensure that this

fight is not left to the law enforcement agents alone.

Thank you.