This whole episode of the
arrest of alleged corrupt judges to me boils down to the thinking to the President
that the Judiciary and lawyers who represent persons being tried for corruption
related offences are frustrating his fight against corruption. Thus as recent
as July, 2016 the President speaking on the role of the Judiciary in the fight against corruption at an international workshop at the National Judicial
Institute (NJI), Abuja said:
“It (the Judiciary) does have a role to play in the fight against
corruption by enforcing the applicable laws. Critically important also,
is the sacred duty of the judiciary to ensure that criminal justice
administration is not delayed. I am worried that the expectation of the public
is yet to be met by the Judiciary with regard to the removal of delay and the toleration
of delay tactics by lawyers. When cases are not concluded the negative
impression is given that crime pays.
So
far, the corruption cases filed by government are not progressing as speedily
as they should in spite of the Administration of Criminal Justice Act of 2015
essentially because the courts allow some lawyers to frustrate the reforms
introduced by law. This certainly needs to change if we are to make success
in our collective effort in the fight against corruption…the Judiciary is under
a duty to keep its house in order and to ensure that the public, which it
serves, sees this. Thus, we cannot expect to make any gains in the war against
corruption in our society when the Judiciary is seen as being distant from the
crusade…The Judiciary must fight delay of cases in court as well as it fights
corruption in its own ranks, perceived or otherwise. We expect to see less
tolerance to delay tactics used by defense lawyers or even the prosecution in
taking cases to conclusion”. (underlining mine)
This thinking of the
President appears to be in accord with the thoughts of the former chairman of
the EFCC, Nuhu Ribadu. Ribadu in a paper
titled; Obstacles To Effective Prosecution Of Corrupt Practices And FinancialCrime Cases In Nigeria, presented at the
1st Stakeholders Summit
On Corrupt Practices And
Financial Crimes In
Nigeria organized by the
House Of
Representatives Committee On
Anti-Corruption, National Ethics
And Values, at the
International Conference Centre, Trade Fair Complex, Kaduna, 23rd – 25th
November, 2004, said:
“It is important
to state here
that the fundamental
rights of citizens guaranteed
by the Constitution
are meant to
protect those citizens who
themselves are law
abiding and have
not infracted the provisions
of the Constitution
itself. It is
indeed inequitable to violate the fundamental law and turn around to
seek its
protection of your
own right without
simultaneously atoning for your wrongs.
On the other
hand, there are
some provisions of the
Constitution which seem to have over protected the accused against the
state. Section 35(2)
gives a right
to any person arrested or
detained to remain silent or avoid answering any
question until after
consultation with his/her
lawyers. Section 36(11) also
provides that any person tried for a criminal offence shall not be compelled to
give evidence at the trial. When
these rights are
claimed, they, many
a times, lead
to over protection of
the accused person
while restricting the means
of protecting the
rest of the
society in the
sense of making it difficult to
prove a case against them”. (underlining mine)
With due respect to
Ribadu, how many arrested persons are aware of or where aware of are allowed to
enjoy the right in section 35(2) referred to when it is public knowledge that
the law enforcement agencies in Nigeria use torture to extract statements or
confessional statements from accused persons. Insisting on the enjoyment of
that right may be an invitation for torture by law enforcement agencies.
Ibrahim Magu, acting
Chairman of the EFCC also shares the same view with that of the President
quoted above. According to Magu:
“We must tell ourselves the truth: there are lawyers within
the fold of the NBA who ought not to be among your noble ranks. Those people
are not fit to be called ministers; rather, they are vandals of the temple of
justice…One of the big challenges we have in the effective prosecution of the
war on corruption is that of very senior lawyers who Nigeria has been very kind
to; those who went to good schools here when Nigeria was good, many of them on
government scholarship; those who Nigeria has given so much opportunity. When
we have corruption cases, cases of people who have stolen food from the mouths
of our children; when we have cases of people who have stolen money meant to
build hospitals and buy drugs; when we have cases of people who have stolen all
the money meant to buy guns for our soldiers to fight Boko Haram, when we have
all these cases of wicked people who have stolen Nigeria’s money, they run to
these same senior lawyers, give them part of the stolen money and mobilise them
to fight us, to delay us in court and to deny Nigerians of justice.
These are the people who do not want justice for the common man.”(underlining mine)
It is clear from Magu's comments that he expects that once the EFCC charges an alleged looter to court, such a person should NOT be entitled to legal representation and the courts should find the person automatically guilty.
It is worthy to note here that the President was also a beneficiary of this delay tactics which he, Ibrahim Magu and others have now suddenly realized is an impediment to trial of government cases against alleged looters. No less a personality than that of Wole Olanipekun SAN, who represented the President and APC pro bono in the run up to general elections of 2015 disclosed this in a recent interview he granted to Gbenro Adeoye of the Punch Newspaper, published on its website on 8th October, 2016. Olanipekun described how the legal team “employed all the tactics available, employable and allowable in the legal profession” and concluded that but for those tactics the election which produced the President won’t have held. It is poignant to quote Olanikepun thus:
“Would Buhari have
been President if we had not done that (employed all the tactics available,
employable and allowable in the legal profession)? What could be more technical
than that? They filed action against Buhari, we looked at it; we raised objections
and we were dragging that. Is that not technicality? And some people will now
accuse me when I do it for other people that I’m defending looters. But when
you do it for them, it is right; that is double standard. And what baffles me
is that some high lawyers, who should know better, also accuse some
lawyers of defending looters?”(underlining mine)
Chief Godwin Obla SAN,
who disagrees with the President’s remarks at an international workshop at the
National Judicial Institute (NJI), Abuja quoted above said:
“I do not think that his (the President’s) opinion as to whether time is
wasted or time is not wasted reflects the true position of the law. The truth
of the matter is that there are procedural challenges in our laws and some of
us have repeatedly spoken about it…The fact that someone is facing trial
does not mean that we’d abridge their right to actually defend themselves. They
have the right to defend themselves; and at times in the course of doing so
they rely on unorthodox techniques of delaying trial, but it is within their
right and it is within the confines of the law…Mr. President cannot indict the
judiciary, just as he is complaining that it is actually taking long for
criminal cases to be decided, Nigerians are also saying that it is taking too
long for the promises that he made to be fulfilled. It is not a one-way
traffic. The law does not work in the way it works in the military. This is a
democracy. The courts have tried, they’ve brought out certain practice
directions, they are making certain levels of progress but it is not overnight.
If we want to make substantial progress we must invest in practical amendment
to our procedural rule of the court.” (underlining mine)
It must be noted that I
am not ignorant of the fact that there are certain corrupt elements in the
legal profession and the Judiciary; both of which are situated within the
larger corrupt Nigerian society. To that extent I agree with the thinking of
the President and Ibrahim Magu but it is the
suggestion and insistence by the President and Ibrahim Magu through
their utterances that any person defending within the boundaries of the law, a
person accused of looting our commonwealth is corrupt or a beneficiary of the
corrupt wealth or that such accused persons should not be entitled to legal
representation and when the Judiciary insists on the enforcement of the rights
of accused looters, they(the Judiciary) are frustrating the corruption fight, that
irks me. We are not in a military administration for goodness sake.
In view of the foregoing
I have concluded that it is the opinion of the President and his anti-corruption
czars, Ibrahim Magu of EFCC, the DSS, majority of Nigerians including many
lawyers through their utterances in the media and elsewhere that corruption
(economic and financial crimes) especially by politically exposed persons and
high ranking government officials or appointees cannot be fought in Nigeria
within the limits of the law or by following the rule of law or principles of
democracy as provided by Nigeria’s Constitution.
Therefore, it is my suggestion that the President having received such overwhelming support by the majority of Nigerians for his corruption fight as it seems, should without delay initiate the process of amending section 36(5) of the 1999 Constitution (as amended) which provides that EVERY PERSON WHO IS CHARGED WITH A CRIMINAL OFFENCE SHALL BE PRESUMED TO BE INNOCENT UNTIL HE IS PROVED GUILTY. The section should be amended to the effect that any person accused of corruption should be PRESUMED GUILTY UNTIL HE IS PROVED INNOCENT BY MILITARY TRIBUNAL. Military tribunals set up by the President and not the courts should try corruption cases!
The President may also
wish to amend Section 36(6)(c) which provides that every person who is charged
with a criminal offence shall be entitled to defend himself in person or by
legal practitioners of his own choice. In this regard the section will be
amended to the effect that every person charged with a corruption related
offence SHALL NOT BE ENTITLED TO BE DEFENDED BY A LEGAL PRACTITIONER BUT SHALL
DEFEND HIMSELF IN PERSON BEFORE A MILITARY TRIBUNAL SET UP BY THE PRESIDENT.
I have earlier quoted
the President as saying “… (the
Judiciary) does have a role to play in the fight against corruption by enforcing
the applicable laws.” Sections 36(5) and 36(6)(c) of the Constitution are
applicable laws in Nigeria which the Judiciary and lawyers insist that they
should be applied even in trial of alleged looters but since such insistence is
inferred as frustrating the corruption fight and such has been sold to
Nigerians who have bought it hook, line and sinker, I do not think it would be difficult
for the President to achieve the amendment of the Constitution to do away with
those sections of the Constitution.
Although the process for amending the 1999 Constitution (as amended) may seem cumbersome but having received the support of teeming Nigerians for his corruption fight methinks even the legislature who are supposedly representing the people will not waste time in doing the necessary that will ensure the amendment since it is now the wish of the majority of Nigerians who they claim to represent.
However, until these
amendments are done, the President and his DSS, EFCC and other law enforcement
agencies should comply with the existing APPLICABLE laws and should not see
anybody (e.g. judges who berate the DSS or EFCC for disobeying court orders,
lawyers representing persons accused of corruption related offences etc.) who
insist that the existing applicable laws be obeyed as supporting corruption or
frustrating the acclaimed fight against corruption.
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