Judiciary: A Wholesome Strategy to Tackling Graft

With the new strategies unveiled for the speedy trial of graft case by the Chief Justice of Nigeria (CJN), Justice Walter Onnoghen, penultimate Monday, Davidson Iriekpen writes that the ball has now shifted to the anti-corruption agencies to up the ante in their investigative and prosecutorial prowess

As part of efforts to step up the anti-corruption fight by the judiciary, the Chief Justice of Nigeria (CJN), Justice Walter Onnoghen, penultimate Monday ordered the setting up of special courts to fight the cankerworm. At a special session of the Supreme Court, where he administered oath on 29 new Senior Advocates of Nigeria (SAN), he ordered the heads of courts to designate at least one court in their various jurisdictions as special courts solely for the purpose of hearing and speedily determining corruption and financial crime cases.

To ensure the effectiveness of this new measures, Justice Onnoghen gave marching orders to all heads of courts to clamp down on both the prosecution and the defence counsel, who indulge in unethical practice of deploying delay tactics to stall criminal trials.
To this effect, the heads of courts will henceforth report cases of unnecessary delays to the National Judicial Council (NJC), which in turn, would transmit them to the Legal Practitioners Privileges Committee (LPPC), in the case of SANs, and the Legal Practitioners Disciplinary Committee (LPDC), in the case of other legal practitioners.

In the event where such cases come on appeal to the Court of Appeal or the Supreme Court, the CJN directed the relevant departments to fix special dates solely for hearing and determining such appeals.
To properly monitor and effectively enforce the new policy, Justice Onnoghen announced that the NJC would constitute an Anti-Corruption Cases Trial Monitoring Committee (ACTMC) at its 88th meeting to be saddled with the responsibility of ensuring that both the trial and the appellate courts handling corruption and financial crime cases key into and abide by the renewed efforts at ridding the country of the cankerworm of corruption.

He said with pre-election appeals cases now out of the way, the Supreme Court would henceforth channel its energy towards clearing as many of the corruption and financial crime cases as possible.
“Heads of courts are now to report such cases to the NJC, which in turn, would transmit them to the Legal Practitioners Privileges Committee, in the case of Senior Advocates, and Legal Practitioners Disciplinary Committee in the case of other Legal Practitioners. Heads of courts have been directed to designate in their various jurisdictions, one or more Courts, depending on the volume of such cases, as special courts solely for the purpose of hearing and speedily determining corruption and financial crime cases.

“Where such cases come on appeal, to either the Court of Appeal or the Supreme Court, Special Dates on each week, shall be fixed solely for hearing and determining such appeals. We are under no illusion that the fight against corruption would be an easy one, as we are already aware that when you fight corruption, corruption fights back but we are determined to win it. We require all hands to be on deck to fight this monster. We in the Supreme Court, having reduced the pre-election appeals in the course of the Third Term of the last Legal year, will devote much of this First Term in dealing, by way of task work, with the identified 18 EFCC, ICPC, and economic crime cases alongside the normal civil, criminal, and political cases,” he said.

Today, most analysts believe that corruption is the greatest problem confronting the nation. Those, who seek change for a better Nigeria, have been calling on the judiciary to come to the country’s rescue. They have often argued that the general lack of political will of the government and the insufficient capacity of the judiciary to deal with the complex and time-consuming proceedings were the reason corruption was on the rise in the country.

There is also the allegation that the inability to deal with corruption inside the judiciary and the need to strengthen its integrity was an integral part of the overall corruption problem.
Section 40 of the EFCC Establishment Act, 2004 frowns at unnecessary delay of cases filed by the anti-graft agency and stay of proceeding should the defendant(s) appeal any application. The section states that, “Subject to the provisions of the 1999 Constitution, 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.”

But judges handling corruption cases have often ignored this section. Not only do they allow defendants to get away with long adjournments, they also grant stay of proceedings at the slightest appeal and also frequently granted bail and permissions to defendants to travel abroad for medical check-ups each time they file application to that effect.
This, perhaps, among other reasons, have often made successive chairmen of the commission to blame the judiciary for not cooperating with anti-graft agencies to tackle corruption head-on.

As laudable as the new idea by Justice Onnoghen might seem, many observers feel it is not practicable. For instance, during his brief tenure as CJN, Justice Dahiru Musdapher, as part of his efforts to correct the general impression that the judiciary was not performing its constitutional role of tackling corruption in the country, issued a practice directive to judges handling corruption cases to ensure that they conclude trial within six months or dispose of them if the prosecution is not willing to prosecute the matter diligently.

Justice Musdapher, a few weeks after, directed that specially selected judges be dedicated and designated to handle corruption and economic crime-related cases. All these came to naught when these measures could not generate convictions from the high profile corruption cases in courts.
Against the backdrop of allegations that the anti-graft agencies themselves were responsible for the lack of conviction in corruption cases, many analysts are therefore wondering how they would leverage on the new idea by Justice Onnoghen to put their houses in order since it is what they have been agitating for a long time.

For instance, at the heat of the allegations that the judges of his court were not cooperating with anti-corruption agencies to tackle corruption in the country, the immediate past Chief Judge of the Federal High Court, Justice Ibrahim Auta, was forced to put the blame on the agencies.
During a courtesy visit on a chairman of the commission, he explained that rather than always blame the court for not doing enough on the corruption cases before them, the judges were often helpless because the commission in their cases make quick dispensation of the cases not easy either.

Auta not only berated the commission for poor investigation of corruption cases, but faulted a situation, where the commission will file about 150 to 200 count-charges in court against a suspect when just three or four count charges can send the suspect to prison. He also faulted the frequent amendment of charge sheets, which according to him always makes the case to start afresh each time this is done. He added that incessant amendments to charges filed by the commission and too many charges in one case for the accused to take a plea, among other such actions, amount to “dancing in one spot.”

The CJ further stated that when prosecution lawyers object to charges and the judge adjourns for further hearing, he is faced with a request to amend the charge sheet or the challenge of the EFCC refusing to produce witnesses on the adjourned dates. All these, according to him, add to the length of prosecution time. He reprimanded the commission for lacking investigative and the prowess to prosecute corruption cases. He stated that bogus count charges, frequent amendment of charges and the rush to arrest a suspect without investigation were a problem for the commission.

As a way out, the CJ suggested that in cases, where the charges against a suspect are numerous, the key ones should be used while the less important ones should be dropped in order to save time on hearing the cases. He also suggested that the EFCC should endeavour to conclude investigations before arraigning suspects in courts so as to avoid a situation, where charges would have to be amended. This way, he said corruption cases could be concluded in good time.
“Another challenge that the judiciary faces with EFCC is the amendment of charges. When charges number up to 150 and in the process of hearing, EFCC comes up with amendments, the process would have to begin all over again,” adding that these factors contributed to dragging corruption cases in courts.

A former Chief Judge of Lagos State, Justice Ayotunde Phillips had cause to lambast anti-corruption agencies for always rushing to arrest suspects without evidence. The judge held that it was imperative that security agencies such as the EFCC, first establish reasonable suspicion against a suspect before putting effect to his or her arrest.
The judge, who urged men of the nation’s law enforcement agencies to learn from their counterparts abroad, cautioned them against being in a hurry to arrest suspects when they are yet to complete investigation and arm themselves with enough facts and evidence to secure conviction.

Also, a renowned international prosecutor, who does not want his name in print, recently delivered a damning verdict on the anti-corruption agencies and bemoaned their capacity to properly investigate and prosecute economic crimes in the country. He added that improper investigation and poor prosecution were the bane of their inability to get conviction.

“Most of our anti-corruption agencies lack the capacity to do thorough investigations. They lack capacity to collate evidence to sustain a charge and secure conviction in court and until we properly reform these agencies, we will continue to experience the problems we are experiencing today. More often than not, people are arrested before they are investigated; they are arrested even before there is evidence.

“They traumatise them and the people are dramatically tried on the pages of newspapers and at the end of the day, when they are unable to prove their case, they end up blaming the courts. When we as the Ministry of Justice try to guide these agencies, they complain of interference. It will be appropriate to merge these agencies together so that they can effectively fight corruption.”
A Lagos-based lawyer, Samson Aderemi while reacting to the new strategy of the Justice Onnoghen, said in as much as it is a good move, experience with the failed banks tribunal in the General Sani Abacha years shows that when courts are established to handle corruption cases, they become vehicle for corruption.

“Good moves by his lordship the CJN. However, I strongly advise against designating a court as corruption cases’ court. Experience with the failed banks tribunal in the Abacha years shows that when you establish a court to handle corruption cases, that court itself becomes vehicle for corruption. The chief judge and whoever he makes judge over the special court becomes actively involved in corruption themselves and could be heavily bribed by accused persons.”

QUOTE: Section 40 of the EFCC Establishment Act, 2004 frowns at unnecessary delay of cases filed by the anti-graft agency and stay of proceeding should the defendant(s) appeal any application… But judges handling corruption cases have often ignored this section. Not only do they allow defendants to get away with long adjournments, they also grant stay of proceedings at the slightest appeal and also frequently granted bail and permissions to defendants to travel abroad for medical check-ups each time they file application to that effect. This, perhaps, among other reasons, have often made successive chairmen of the commission to blame the judiciary for not cooperating with anti-graft agencies to tackle corruption head-on