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Dilemma Of President Buhari’s Anti-Corruption War (Part 2)



Critical Pitfalls of the Administration of Criminal Justice Act (ACJA) 2015 Criminal Procedure in Nigeria was until May 2015 when the Administration of Criminal Justice Act (ACJA) 2015 was enacted governed by two principal legislations; i.e. the Criminal Procedure Act (CPA) and the Criminal Procedure Code (CPC).
It has been obvious that Criminal Procedure Act came into being as ordinance N0. 42 of 1945 and the Criminal Procedure Code which was enacted by the Northern Nigeria in 1960 were too timeworn to check the rising waves of crime, speedily bring criminals to book and protect the victims of crime.
The ACJA merges the main provisions of the two principal legislations, CPA and CPC into one principal federal Act which is intended to apply uniformly in all federal courts across the Federation. Although it preserves some criminal procedure systems but it introduces some innovative provisions aimed at enhancing the efficiency of the justice system.
Section 353(7) of the ACJA attempts to tackle the problem of delay caused by the so-called trial de novo phenomenon, by insisting that a Judge of the High Court who has been elevated to the Court of Appeal shall be coming to sit on the criminal matter until it is determined.
But this provision failed to make case for the high court judges that retires or give ghosts. For instance, the Supreme Court on May 18, 2018 ordered a former Managing Director of the defunct Intercontinental Bank Plc, Dr. Erastus Akingbola, to return to the Federal High Court in Lagos to face his trial on N5bn fraud charges. The trial was prematurely terminated in April 2012 by Justice Charles Archibong, whose decision in the case later earned him a compulsory retirement from the bench. The apex court however ordered that the case be remitted to the Federal High Court and handled by another judge in the Lagos Division and be given “expeditious trial”. In other words, the case will start de novo when many witnesses and evidence are lost

Section 306 of the ACJA, like the 2013 Practice Direction of the Federal High Court in Criminal Matters attempts to address the problem posed by interlocutory appeals. This Section 306 states without reservation that, “an application for a stay of proceedings in respect of a criminal matter before the court shall not be granted”. It is similar to Section 40 of the EFCC Act, 2004, which states, “Subject to the provisions of the 1999 Constitution, an application for stay of proceedings in respect of any criminal matter brought before the High Court shall not be entertained until judgment is delivered by the High Court.” This provision have been observed more in default than in obeisance.
But some legal pundits have argued that ‘’the Law remains that an accused’s right of appeal is a constitutional right, which cannot be abated, compromised whittled down, or nimble at. While Section 233 (2) (a) of the 1999 Constitution provides that an appeal shall lie from the decisions of the Court of Appeal to Supreme Court as of right where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal, section 241 (1) (a) provides for similar provisions in respect of appeal from the Federal High Court, National Industrial Court, High Court of a State, High Court of the FCT, Abuja, Sharia Court of Appeal, etc. an appeal under the Constitution could therefore be interlocutory or substantive’’,
On November 12, 2015, the Supreme Court however granted an order halting the trial of the Senate President, Bukola Saraki, for alleged false assets declaration before the Code of Conduct Tribunal (CCT).

The five-man panel of the apex court led by Justice John Fabiyi (retd.), made the order of stay of proceedings in an appeal filed by Saraki challenging the jurisdiction of the CCT to try him.
In a unanimous decision read by Justice Fabiyi, the apex court ordered the tribunal, which had fixed November 19, 2015 for the commencement of Saraki’s trial, “to tarry awhile” pending the hearing and determination of Sataki’s appeal.
The Supreme Court which suffered image-hemorrhage from Justice Fabiyi’s ruling got an opportunity ascertain its integrity when Olisa Metuh relied on Saraki’s case to seek a stay of proceedings in his trial for alleged N400m fraud before Justice Okon Abang of the Federal High Court in Abuja.

The apex court reverse self on June 9, 2017 when it validated the provisions of Section 306 of the ACJA and Section 40 of the EFCC (Establishment) Act, 2004, both of which prohibit courts from granting an order of stay of proceedings in an ongoing criminal trial.
The 5-man panel led by Justice Dattijo Muhammed unanimously held in its ruling that by virtue of the provisions of both laws, no Nigerian court, including the Supreme Court, had the power to stay proceedings in a criminal case.
Justice Clara Ogunbiyi (rtd), in her lead ruling of the apex court, faulted the claim by some lawyers that section 306 of the ACJA and section 40 of EFCC Act violated citizens’ right of appeal. She held that the provisions of both laws were in agreement with section 36(4) of the constitution which provided that any person charged with a criminal offence “shall be…entitled to fair hearing in public within a reasonable time.”
“The appellant/applicant’s motion for stay of proceedings is violently in conflict with the provisions of section 36(4) of the 1999 Constitution (as amended), section 306 of the ACJA and section 40 of the EFCC (Establishment) Act, 2004 as well as the plethora of case law authorities cited’’, Justice Ogunbiyi held.
This decision of the apex court, though highly plausible have only succeeded in playing to the gallery, avoiding the public anger and invectives that greeted Justice Fabiyi’s unassuming legal/constitutional position in his ruling in Saraki’s case.
The Supreme Court had earlier warned in the case of Eyesan v. Sanusi (1984) LPELR-1185 (SC), that the “right of appeal to the Court of Appeal is a constitutional right exercisable by a party in a civil case.
Professor Yemi Akinseye-George (SAN), had warned that ‘’by far the most important recommendation one can offer for improving criminal justice administration is for the amendment of the Constitution to the effect that ‘Notwithstanding anything to the contrary contained in the Constitution or any other law an application for stay of proceedings in any criminal matter brought before any court or Tribunal shall not be entertained until judgment is delivered by the court’’.
Lastly, one other critical problem with the stalled corruption cases which were put on hold for eight years awaiting the decision of the apex court on one interlocutory appeal or the other is the trial under Administration of Criminal Justice Act for corruption charges filed under Criminal Procedure Act and the Criminal Procedure Code. The anti-graft agencies would need to refile these cases under the Administration of Criminal Justice Act to avoid suffering some legal casualties along the line.

Want of Diligent Prosecution –Abandoned Judicial Views
Again, let us do a little recap. Shortly after his inauguration on November 11, 2015 as the AGF, Abubakar Malami (SAN) paid a courtesy visit on November 24, 2015 to the then CJN, Justice Mahmud Mohammed and other justices of the Supreme Court.
The ex-CJN told Malami without mincing words that the lack of political will to prosecute high profile corruption cases, especially those involving politically exposed persons or political party family members as being among the major reasons why corruption trials were often stalled.
Beside other justices of the Supreme Court in attendance are heads of court including the Chief Judges of the Federal High Court, Justice Ibrahim Auta (rtd) and Federal Capital Territory High Court, Justice Ishaq Bello, the President of National Industrial Court, Justice Babatunde Adejumo and that of the Customary Court of Appeal (FCT), Justice Moses Bello (rtd).
‘’Experience within the Judiciary shows that there is abject lack of political will to prosecute some of the cases pending before our various courts almost a decade in some instances. It is not because there are no special courts, but mostly for reasons of political expedience and other ancillary considerations’’, ex-CJN said.
“I would likewise wish to encourage you (AGF) to display a greater resolve than your predecessors in tackling outstanding cases before the courts. In times past, the Attorney General of the Federation would often lead teams of legal counsel in high profile cases so as to demonstrate the resolve of the Government to enshrine the Rule of Law. Sadly, recent Attorney Generals have become less inclined to do this. I would certainly like to see you, as the Attorney General, appear before us especially in cases of important national purport’’.
‘’There is the need for seasoned prosecutors to prepare and file charges before courts of competent jurisdiction so that convictions are timeously secured. The quality of prosecutions presented in courts by our prosecutorial agencies must be improved upon, as they are sometimes of a standard that will never found a conviction in any court anywhere; yet, a well prepared prosecution can see to the determination of criminal matter within a month. Of course, no competent prosecutor who has filed valid charges would permit an accused to mount an interlocutory appeal, to the extent of going forth and back, sometimes twice or more to the Supreme Court, since such a thing could be injurious to the dispensation of justice’’.
The CJN also advised the Minister of Justice to recruit more lawyers who should be adequately trained to handle more cases on behalf of the State. He remarked that this would create a reservoir of highly trained, public spirited lawyers to feed the Bench and the Bar; and also to act in the stead of private firms, who often charge higher fees at the expense of the public purse.
His lordship counseled the executive to actively reform and revamp the justice sector, which his Lordship noted, includes strengthening the capacity of investigation units with such facilities as well equipped forensic and ballistics laboratories throughout Nigeria, so as to help with better evidence gathering and reduce trial times.
Justice Mohammed urged the AGF to endeavor to attend meetings of judicial bodies such as the Body of Benchers, Legal Practitioners Privileges’ Committee (LPPC), Board of Governors of the National Judicial Institute and others of which he is a member by statutory provisions as this will allow him to keep abreast of developments within the Judiciary and the legal profession in general. Thus, as his Lordship noted, “the AGF can adequately brief the Federal Government with facts on issues in the Judiciary rather than press coverage and opinions of some lawyers often echoed at public events’’.
In his response, Malami promised the judiciary some dividends; which includes a proposal to set up an ‘’Interface Committee’’ comprising of members of the Executive and the Judiciary for the purpose of preparing Executive Bills for Constitution amendment, drawing up workable policies and proposing reforms that will be jointly pursued by the executive and judiciary arms of government.
Malami promised to publicly support the Judiciary and ensure that legislation against false accusation of judicial officers is put in place; except that barely a year later, precisely on the night of October 5, 2016, the operatives of the Department of State Services (DSS) raided houses of seven judges including two justices of the same Supreme Court.

Want of Diligent Prosecution (continued)
On March 26, 2012, Justice Abubakar Sadiq Umar of an Abuja High Court struck out a suit filed by the Economic and Financial Crimes Commission (EFCC) against three persons named in the Halliburton bribery scandal.
The EFCC is charging a former Permanent Secretary in the Office of the Head of Service, Ibrahim Aliyu, Abdullahi Bello, and Mohammed Bakari of the Urban Shelter Ltd including four companies for serving as conduits and receiving bribes in hard currency to facilitate natural gas contracts between 1994 and 2005.
Aliyu, was at the time chairman of contract award committee of the Bonny Liquefied Natural Gas, which awarded the contracts. The four companies are Urban Shelter Ltd, Intercellular Nigeria Ltd, Sherwood Petroleum Ltd and Tri-Star Investment Ltd.
Justice Umar struck out the suit after the EFCC Counsel, Kauna Pindam, prayed the court to grant the commission another adjournment to enable it to arraign the accused persons.
In his ruling, Justice Abubakar Sadiq Umar said the prosecution has failed to diligently prosecute the case. “The court has the duty to discharge its duties diligently; court business is a very serious business. Court should not be turned into a warehouse of keeping moribund cases,” the judge said.
“It has been over a year now and still the EFCC is coming up with excuses; the EFCC should know that if it is not ready to prosecute and bring cases to conclusion, it should not apply for leave of court to arraign anybody,” he added.
Justice Umar warned the EFCC not to expose the judiciary to ridicule. “I have checked my records and in the past one year, since February 17, 2011 when I granted leave to the prosecution to arraign the accused; they have not done so.
“The EFCC should know that I am answerable to the National Judicial Council and what will I say is the reason why this case has been at arraignment stage for the past one year? “I therefore strike out the suit for want of diligent prosecution,” the judge said
The Halliburton bribery case involved the funneling of $180 million in bribes to Nigerian government officials to facilitate natural gas contracts valued at $6 billion.
In 2009, former Halliburton subsidiary, Kellogg Brown & Root (KBR), pleaded guilty and admitted that it paid $180 million in bribes to Nigerian officials to win the $6 billion contracts. Partner companies from Italy, France and Japan were also involved.
In the interim report the Corruption and Financial Crime Cases Trial Monitoring Committee (COTRIMCO) forwarded to the National Judicial Council’s recent 86th meeting, the committee chairman, Justice Suleiman Galadima (rtd) identified prosecution as one of the causes of delay in the trial of corruption cases
‘’That offenders are charged to Court before proper investigations of the charges are done, and afterwards, expecting the Court to detain such alleged offenders till conclusion of their investigation; inadequate funding of prosecution Agencies to carry out thorough investigation of the corruption cases with attendant low quality prosecution cases; and frequent requests for adjournment by the Prosecutors’’.