Since the Buhari Administration was inaugurated 10 months ago there has been a wave of arrests of many alleged looters of the commonwealth. The thorough investigations conducted by the Economic and Financial Crimes Commission and the Presidential Panel on Arms Procurement have exposed mind-boggling revelations of criminal diversion of public funds. However, not a single corruption case has been concluded by any of the courts. President Buhari recently expressed his frustration and displeasure over the negative role of the courts in the prosecution of corruption cases. The situation is not likely to improve as the government has not demonstrated its capacity to confront corruption headlong in any sustained manner. As far as the forces of corruption are concerned, it is business as usual.
No doubt, scores of alleged looters have been exposed. In fact, some of the suspects have been charged to court. But having regard to the usual manipulation of the criminal justice system by influential criminal suspects there is no indication that a substantial number of the cases will be concluded before 2019. To avoid a situation whereby the trial of the alleged looters is suspended indefinitely, the criminal justice system has to be reviewed as a matter of urgency. As the anti-corruption battle cannot be won through the regular courts, we are going to make a strong case for the immediate establishment of a Special Court for the trial of economic and financial crimes, including corruption.
Public accountability and the Nigerian people
The media, the Bar and certain vested interests have accused the Buhari administration of subverting the rule of law and violating the fundamental rights of suspects in prosecuting the anti-corruption agenda. In particular, the EFCC has been taken to task for daring to indict some corrupt lawyers and judges. The Body of Senior Advocates of Nigeria (BOSAN) has urged the government to fight corruption under the rule of law. On its own part, the NBA has censored the federal government for violating the fundamental rights of certain suspects involved in corruption cases. But neither the BOSAN nor the NBA has deemed it fit to call the members of the legal profession who are determined to frustrate the prosecution of corruption cases to order. As far as both bodies are concerned, human rights are the exclusive preserve of the bourgeoisie. Hence, the tenets of rule of law are only invoked when the trial of a VIP is involved, while human rights are only violated in Nigeria when the looters of the treasury are arrested and detained for a few days without trial.
Both bodies have never been bothered that about 40,000 out of 52,000 prison inmates are awaiting trial under dehumanising conditions in the prisons. To them human rights were not violated when 70 soldiers were recently tried in camera, convicted and sentenced to death for demanding for weapons to fight well armed terrorists. But the lawyers have accused the administration of engaging in egregious human rights abuse for asking a handful of military officers to account for stealing hundreds of billions of naira earmarked for the procurement of arms and armament for counter-insurgency operations. When the Chief Judge of the federal capital territory, the Honourable Justice Ishaq Bello gave a directive that magistrates should not order the detention of criminal suspects, the national body of lawyers did not speak up. Only Mr. Hon SAN and I joined issues with his lordship over the illegality of the directive. In a country where petty criminal suspects are handcuffed and leg-chained from prison to court rooms, the media cried foul the other day when a big man who is accused of stealing N400 million was handcuffed.
The Nigerian people should no longer allow the lawyers, the media and other defenders of the status quo to continue to defend the human rights of the alleged looters without speaking for the millions of victims of corruption. In particular, lawyers should be challenged for hiding under the rule of law to shield politically exposed persons from arrest and prosecution. No doubt, some overzealous anti-graft, police and military officers have continued to violate the human rights of some innocent citizens. The duty of lawyers is to ensure that such law enforcement officers are fished out, isolated and sanctioned, while the State should be made to pay reparation in appropriate cases. As far as I am concerned, the few cases of human rights abuse that have been recorded should not used to rubbish or discredit the anti-corruption policy of the federal government.
Having regard to the role of some professionals like lawyers, accountants, bankers etc in the fight against corruption, the relevant professional bodies are enjoined to deal with cases of misconduct involving their members. Since the Attorney-General of the Federation has once again been vested with the power to discipline erring lawyers, he should set the engine in motion for bringing to book the members of the legal profession who are determined to frustrate the prosecution of corruption cases. At the same time the police and the anti-graft agencies should not hesitate to arrest and prosecute lawyers and other professionals who engage in corruption and other criminal practices.
Frustration of corruption cases by politically exposed persons
According to the Financial Action Task Force (FATF), a politically exposed person is an individual who is or has been entrusted with a prominent public function. Due to their position and influence, it is recognised that many PEPs are in positions that potentially can be abused for the purpose of committing money laundering (ML) offences and related predicate offences, including corruption and bribery, as well as conducting activity related to terrorist financing (TF). The federal government has enacted the Money Laundering Act, Terrorism Prevention Act, Advanced Free Fraud Act etc to combat the offences of corruption and money laundering which are usually committed by politically exposed persons.
It is common knowledge that politically exposed persons are given special treatment in Nigeria. Upon arrest for stealing billions of naira, they are granted bail in self-recognition or other liberal terms, notwithstanding the gravity of the offences alleged against them. Experience has shown that once granted bail in corruption cases, suspects adopt all manners of dilatory tactics to frustrate trial. It has just been disclosed by the Minister of Information, Mr. Lai Mohammed, that 55 ex-public officers standing trial for allegedly stealing N1.3 trillion have had their cases subjected to interminable delay. The trial of such politically exposed persons which commenced in 2007 has not been concluded till now. Apart from two of the ex-governors who opted for plea bargain, the cases of others have been stalled through preliminary objections and stay of proceedings filed by the defendants and lavishly granted by either the trial or appellate courts.
In the same vein, bank executives who are alleged to have stolen about N500 billion have successfully stalled their trials. The Lagos High Court rightly insisted that it has the jurisdictional competence to try the case of the stealing of depositors’ funds and the manipulation of the capital market. But the Court of Appeal demurred and overruled the Lagos High Court. According to the Justices of the Court of Appeal, since the main offence pertains to stealing in the capital market, the defendants ought to have been charged at the Federal High Court. The federal government promptly filed an appeal against the decision of the Court of Appeal to the Supreme Court. As the appeal has not been expeditiously determined by the apex court, the cases of the bank executives have also been suspended sine die.
The practice of manipulating the legal system to suspend the hearing of corruption cases involving politically exposed persons was condemned by the Supreme Court in Joshua Dariye v FRN (2015) 10 NWLR (1267)…. In that case, the appellant who was charged with the stealing of N1.2 billion ecological funds while he was governor of Plateau State filed a preliminary objection against the jurisdiction of the Federal Capital Territory High Court to try the case. Although the application was dismissed by both the trial court and the Court of Appeal, the trial was suspended for eight years. In dismissing the appeal, the Supreme Court (per Ngwuta JSC) condemned the delay tactics as “a sad commentary on our fight against corruption.” In his contribution to the judgment, Nweze JSC had this to say: “I have noticed a worrisome trend in most recent time, particularly among politically exposed citizens of this great country, (who) imagining that they are above the laws of the land, have perfected some dubious tactics of delaying their trial when they run into conflict with the law.”
By stealing the funds set aside for job creation, corrupt politically exposed persons are responsible for the majority of armed robbery and kidnapping committed by unemployed youths. By stealing the fund earmarked for building hospitals and roads, the looters are responsible for many avoidable deaths and the spread of dangerous diseases. By cornering the funds provided for building schools, the looters are responsible for promoting illiteracy and ignorance in the society. The public officers who diverted ecological funds of billions of naira to buy choice properties in Dubai in the United Arab Emirates are responsible for the flood that has caused tragic death of people and displacement of others, as well as the destruction of the properties of the victims. In any country where the rule of law operates, criminal suspects who are liable for such crimes against humanity cannot hide under human rights to avoid prosecution.
The need to review automatic bail for alleged looters
Since the victims of grand corruption, including armed robbery and kidnap suspects, are not usually admitted to bail, those who are charged with looting the treasury should no longer be granted bail. Once politically exposed persons standing trial apply for bail, judges no longer place any premium on some of the well known factors militating against the grant of bail which include the nature and gravity of the offence alleged against a defendant; the character of the evidence; the probability of guilt; the likelihood of interference with the witnesses of the prosecution etc. Not too long ago, a few criminal elements who were duping Nigerians and foreigners alike through the crime of advanced free fraud, otherwise known as “419”, dragged the country’s image through the mud and caused untold embarrassment to law abiding citizens outside the country. Even though the alleged fraudsters who were charged to court were presumed innocent until proved guilty by the prosecution, they were denied bail by the trial courts and the appellate courts. Politically exposed persons who were charged to court from 2003-2007 were equally denied bail by the courts. It was because the VIPs were denied bail that they resorted to plea bargain.
The rationale for the progressive judicial policy of refusing bail to suspects in corruption cases was explained by the Court of Appeal in the case of Ekwenugo v. Federal Republic of Nigeria (2001) 6 NWLR (PT 708) 171 where Fabiyi J.C.A. (as he then was) observed that “Nigerian judges do not operate in utopia. We operate in Nigeria. And no Nigerian judge can rightly claim he has not heard that Transparency International rates our nation-state as the most corrupt in the whole universe in the year 2000. This is ear-aching.”
The judicial policy of denying bail to politically exposed persons had contributed to the speedy hearing of corruption cases. However, the policy was jettisoned when the EFCC charged a number of ex-governors to court with the offences of corruption and money laundering in 2007. Specifically, the policy was abandoned in the case of Chief James Ibori, a former governor of Delta State. Notwithstanding the unchallenged affidavit evidence of the prosecution that the 1st respondent had been convicted for stealing twice in the United Kingdom, the federal high court admitted him to bail but ordered him to deposit his passport in court. But the Court of Appeal varied the bail conditions in Ibori v Federal Republic of Nigeria (2009) 3 N.W.L.R. (Pt 1127) 94 by directing that the passport be released to him to enable him to travel to attend to his medical needs and other personal matters pending the conclusion of the trial. In justifying the decision, the Justices of the Court of Appeal waxed eloquent in defending the civil liberties of the suspect and thereby gave the impression that suspects charged with corruption were automatically entitled to bail and the release of their passports.


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