Tuesday, 10 November 2015

As Corruption Fights Back, By Femi Falana

The Lions International founded in 1917 by Melvin Jones in Chicago, Illinois, United States has grown into a global body of volunteers. With its membership of over 1.4 million people in 210 countries it is unarguably one of the largest non-governmental organisations in the world. Like its counterparts in other countries, the Nigerian chapter of the Lions Club provides assistance to the needy and other underprivileged citizens. Realising the limitation of non-state actors in addressing the socio-economic situation of the people, the Lions Club has pledged to the promote the“principle of good government and good citizenship”.

In addition to the provision of financial assistance to the needy, the Lions Club should join the campaign for the establishment of a social security scheme funded by the government to provide for all indigent citizens. More importantly, the club should mobilise the people to demand for the protection of their basic rights by the government. Since the Buhari administration has undertaken to save funds for the overall development of the country by fighting corruption and stopping leakages in the system, the prosecution of certain corruption cases by the government ought to be reviewed as corruption is fighting back in a ferocious manner.

The duty of the State to Abolish Corruption
Pursuant to section 15 (5) of the Constitution, the State is obligated to “abolish all corrupt practices and abuse of power”. To that extent, the anti-corruption policy of the Buhari administration is justified by the Constitution. However, the administration believes that corruption is the root cause of the country’s socio-economic malaise. Hence, the President has cautioned that “if we don’t kill corruption, corruption will kill us.” While it cannot be disputed that corruption has stultified growth and development of the nation, it should be pointed out that it is a manifestation of the predatory and dependent capitalist state run by the parasitic ruling class.
The menace of corruption is compounded by the impunity of the ruling class in a neo-colonial state like Nigeria, whereas it is controlled by an effective criminal justice system under the rule of rule of law which operates in western countries. To wage a meaningful battle against corruption, the economy has to be freed from the tiny grip of imperialism and its local lackeys and managed in such manner as to secure the maximum welfare, security and happiness of every citizen. To achieve that objective, the government has to harness the enormous resources of the country and redistribute them to serve the common good. Furthermore, the culture of impunity has to be replaced by the rule of law. In view of the lack of political will on the part of the ruling class to end impunity, the Nigerian people have a critical role to play in the fight against corruption and abuse of power.
Expectedly, the policy of the Muhammadu Buhari Administration to fight corruption and end impunity is under serious attack by powerful vested interests. The Peoples Democratic Party (PDP) has alleged the persecution of its members who have been dragged to court for diverting huge public funds. While not denying the involvement of the accused persons in corrupt practices, the PDP has accused the administration of selective prosecution for not charging the corrupt members of the ruling All Progressives Congress (APC) to court. The senate president, Dr. Bukola Saraki, a leading member of the APC, has alleged that his trial before the Code of Conduct Tribunal for false declaration of assets is politically motivated.

The National Council for Peace has pleaded with President Buhari to respect the human rights of former ministers accused of corruption since President Goodluck Jonathan ensured a peaceful transfer of power. A number of senior lawyers have obtained interim or perpetual injunctions from judges which have restrained the police and anti-graft agencies from arresting, investigating and prosecuting certain politically exposed persons alleged to have engaged in the criminal diversion of public funds. In spite of the abolition of stay of proceedings or suspension of criminal trials by the Administration of Criminal Justice Act 2015, senior lawyers and judges manning criminal courts have continued to subject corruption cases to frivolous preliminary objections.
However, while every indictable offence should be prosecuted, it should be pointed out that even in advanced liberal democracies the allegation of politically motivated prosecution is not uncommon. But in western countries, anyone who is alleged to have breached what Professor Akin Oyebode calls the eleventh commandment of the bourgeoisie (i.e thou shall not be caught) will be brought to book regardless of the political affiliation. If the case is dismissed the person may sue the State to pay reparation if there is evidence of malicious prosecution.
Soliciting for Corruption
Although the government is yet to define the scope and nature of its anti-corruption policy, it is pertinent to join issues with the lawyers who are being used to hijack the battle and confuse the people. No doubt, the Nigerian Bar Association (NBA) has consistently condemned corruption in the bar and the bench. Thus, at the valedictory service held by the Supreme Court on February 17, 2012 in honour of the late Justice Anthony Aniagolu, the then NBA President, Mr. Daudu (SAN) pointed accusing fingers at some retired judicial officers and senior lawyers who were acting as bribe couriers between politicians and judges in election petition tribunals. To halt the dangerous trend, he announced that the NBA had set up an Anti-Corruption Commission to identify members of the legal profession involved in promoting corruption within the justice system. But neither the NBA anti-corruption commission nor the Disciplinary Committee currently headed by Mr. Daudu has been able to identify the corrupt members of the legal profession. Indeed, it is public knowledge that some senior lawyers have since been recruited to frustrate the prosecution of corrupt elements in the society.
During the induction ceremony for the 2014/2015 set of Senior Advocates of Nigeria, the NBA President, Mr. Austin Aleghe (SAN) reiterated the resolve of the law society to fight corruption. On that occasion the NBA leader expressed concern over the rampant allegations of sleaze in the judiciary. Convinced that the leadership of the bar was characteristically playing to the gallery, the Chief Justice of Nigeria, the Honourable Justice Mohammed Mahmud was compelled to challenge the NBA President to name the corrupt members of the bench. Up till now, the NBA has not plucked up the courage to take up the challenge due to the involvement of a number of senior lawyers in the menace.
At the opening ceremony of the 2015 Annual General Conference of the NBA at Abuja on August 23, 2015 President Muhammedu Buhari urged Nigerian lawyers to see corruption as a gross violation of peoples’ rights, because pervasive corruption has continued to deny the people access to basic needs. In urging Nigerian lawyers and judges to back his administration’s fight against corruption and impunity, the President said that “ the ability to manipulate and frustrate the system is the crowning glory of the corrupt and, as may be expected, this has left many legal practitioners and law courts tainted in an ugly way.” (See Buhari to Lawyers: Join fight against crooks – The Nation, August 24, 2015). The appeal has since fallen on deaf ears as some senior lawyers are determined to frustrate the trial of corruption cases to the detriment of the society. This has been amply demonstrated in some of the cases pending at the trial courts and the appellate courts.
Immunity for Corrupt Public Officers
In the last three months, several interim and interlocutory orders have been issued by the federal and state high courts which have prevented the anti-graft agencies from prosecuting certain highly placed individuals accused of involvement in corrupt practices and other economic and financial crimes. In fact, a judge in the Federal High Court has granted not less than 10 of such orders. I also know of a State High Court judge who has ordered the police not to charge some indicted murder suspects to court. From the information at my disposal, the illegal orders were procured by some senior lawyers contrary to the settled position of the law on the matter. In other words, the granting of interlocutory injunctions by judges to restrain the police or anti-graft agencies from investigating allegations of corruption and other criminal offences is illegal and unconstitutional as no court has the power to turn any person into an outlaw in a country which operates under the rule of law. In Fajemirokun v. CCB Nig. Ltd. (2009) 21 WRN 10 the Supreme Court held:
“In view of section 35(1)(c)(2)(3)(4)(5) and (6) and Section 36(1)-(12) of the 1999 Constitution which provide adequate safeguard for the arrest of any person suspected of having committed an offence, investigation of the allegation, and the prosecution of the offender, no person has the constitutional right to be shielded against criminal investigation by a judicial fiat or order.”
In the same vein in the case of Dododo v. Economic and Financial Crimes Commission & Ors. (2013) 1 NWLR ( PT 1336) 468 at 510 the Court of Appeal held:
“The EFCC and the ICPC enjoy the status of the powers vested in the police which encompasses the duty to examine a complaint or petition, investigate and prosecute if necessary and that when a petition or complaint is made the statutory body, their duty to look at the complaint cannot be suppressed.”
In spite of the clear pronouncements of the appellate courts to the effect that no court can confer immunity on criminal suspects, high court judges have continued to frustrate the anti-graft agencies from arresting, investigating and prosecuting influential persons accused of involvement in serious cases of corruption, fraud and other economic crimes. No doubt, the lawyers involved in the charade are promoting corruption and subverting the rule of law under the guise of protecting the fundamental rights of their clients to personal liberty and fair hearing. However, I must not fail to appreciate and acknowledge the very many lawyers who have sworn to shun corruption. It is high time that such concerned patriots spoke out against lawyers and judges who are promoting corruption under the guise of performing their professional role as defence counsel to criminal suspects.
Dr. Bukola Saraki’s Trial
The senate president, Dr. Bukola Saraki has been charged with false declaration of assets before the Code of Conduct Tribunal sitting in Abuja. Incidentally, the senator was a member of the Seventh session of the National Assembly which enacted the Administration of Criminal Justice Act, 2015. Section 306 thereof provides that “An application for stay of proceedings in respect of a criminal matter before the court shall not be entertained.” For the avoidance of doubt, section 396 (2) of the Act further provides that “After the plea has been taken, the defendant may raise any objection to the validity of the charge or the information at any time before judgment provided that such objection shall only be considered along with the substantive issues and a ruling thereon made at the time of delivery of judgment.”
Notwithstanding the abolition of stay of proceedings by the Act and the incorporation of preliminary objections in the substantive case, Dr. Saraki’s lawyers have filed a notice of preliminary objection at the Code of Conduct Tribunal. When the objection was overruled, the defendant filed applications for stay of proceedings at the Conduct of Conduct Tribunal. Similar applications were filed at Court of Appeal and the Supreme Court. The defendant has also engaged in forum shopping in the Lagos and Abuja divisions of the Federal High Court. At the resumed hearing of the case at the Code of Conduct Tribunal last Thursday, the senior advocates involved in the legal gymnastics accused the judges of engaging in “judicial rascality” for daring to rely on the relevant provisions of the Administration of Criminal Justice Act, 2015.
In Mohammed v Olawunmi (1993) 4 NWLR (PT 287) at Page 254 the Supreme Court held that it is an attitude which borders on judicial pertinence on the part of a trial court to foist an appellate court with a fait accompli by proceeding with a hearing of a matter when a motion of stay of proceedings is pending at an appellate court. With respect, that case which was relied upon by the defence counsel no longer represents the current state of the law in all federal courts in the country. To that extent, the decision of the Code of Conduct Tribunal to proceed with the hearing of the substantive matter was perfectly in order.
In view of the unambiguous provision of the Administration of Criminal Justice Act on the suspension of all objections and the abolition of stay of proceedings and other dilatory tactics the tribunal did not exhibit any act of judicial rascality. Indeed, it was the senior lawyers who displayed professional rascality by subjecting the judges to scurrilous attacks after walking out of the Tribunal. Although the senior had protested the hearing of the case on the ground that they had filed a motion for stay of proceedings in the Supreme Court, it was reported that barely 24 hours later Senator Saraki’s lawyers appeared at the federal high court in Lagos to seek a similar redress for their client. However, the suit in Lagos was dismissed by the Honourable Justice Mohammed Buba who held that the Code of Conduct Tribunal has exclusive jurisdiction over the issue of asset declaration.
In condemning the conduct of Senator Saraki’s lawyers, the Socio-Economic and Accountability Project (SERAP) has called on the NBA to “urgently investigate what exactly happened and to punish any professional misconduct that may have occurred.” I am one with the SERAP in view of Rule 30 of the Rules of Professional Conducts for Legal Practitioners 2007, which provides that “A lawyer is an officer of the Court and, accordingly, he shall not do any act or conduct himself in any manner that may obstruct, delay or adversely affect the administration of justice.” But the NBA President has peremptorily dismissed any allegation of professional misconduct on the part of the defence counsel!
Solidarity Appearance at the Code of Conduct Tribunal by Senators
In a rare display of impunity, the Senate President has caused the senate to adjourn sittings to allow members to show solidarity with him whenever his case is fixed for hearing at the Code of Conduct Tribunal. Apart from questioning the political will of the Buhari Administration to fight corruption and impunity in the country, the Senate has continued to assault our collective national morality. Since the policy of “no work no pay” is applicable in the federal public service, the senators who abandon their constitutional duties to attend court proceedings are not entitled to be remunerated for wanton indolence in the circumstance. If the morally despicable behaviour is not halted the distinguished senators may soon resolve to appear in the various courts in the country in solidarity with other members who are facing terrorism and corruption charges. After all, what is good for the goose is equally good for the gander.
As the senate president Dr. Bukola is required to preside over the affairs of the legislative house in the discharge of its constitutional duty of making laws for the country. Attendance of court sittings in solidarity with any criminal suspect is certainly not part of the constitutional responsibilities of the senate. By insisting on the suspension of senate sittings to enable him to attend court sittings in the company of fellow senators, the Senate President has violated paragraph 1 of the Code of Conduct for Public Officers which states that “A public officer shall not put himself in a position where his personal interest conflicts with his duties and responsibilities.”
Exception to Presumption of Innocence of Corrupt Persons
Some lawyers have continued to argue that persons accused of unbridled corruption or unjust enrichment are presumed innocent and therefore qualified to occupy positions of authority until they are found guilty by a competent court of law. Curiously, the ruling party has adopted the dubious legal argument. Hence, it is fielding two governorship candidates who are standing trial for corruption while some persons accused of fraud and corruption have been appointed to positions of authority by the APC-led government. It ought to be pointed out that presumption of innocence which inures in favour of criminal suspects is not an immutable doctrine under the Nigerian criminal law.
Hence, Section 36(5) of the Constitution specifically provides that “nothing in this section shall invalidate any law by reason only that the law imposes upon such person the burden of proving particular facts.” Accordingly, under Section 145 of Evidence Act 2011 there is a dichotomy between presumption of law and presumption of fact. Hence, while criminal suspects are presumed innocent until the contrary is proved by the prosecution in a criminal trial, any person who is in possession of stolen goods soon after the theft is either the thief or has received stolen goods knowing them to have been stolen, unless he/she can account for the possession. See R v. Braimoh (1943) WACA 197.
Under the current criminal law regime, if a public officer cannot account for his/her stupendous wealth the onus is on him/her to explain the source of the wealth. Indeed, by virtue of section 7 of the Economic and Financial Crimes Commission Act the Commission is empowered to cause investigation to be conducted into the properties of any person “if it appears to the Commission that the person’s life style and extent of the properties are not justified by his source of income.” In such a situation, the onus rests on the suspect to explain that the assets in question have been acquired legitimately.
Furthermore, contrary to the misleading impression that public officers accused of corruption cannot be asked to step aside and clear their names, paragraph 303404 of the Federal Government Public Service Rules (Corrected Version 2008) stipulates that when a public officer is charged to court with a criminal offence, he/she shall be interdicted and cease to report for duty until the determination of the case. During the period of interdiction, the public officer concerned shall be entitled to 50 percent of his/her entitlements provided that if he/she is discharged or acquitted the officer shall be immediately reinstated and receive his/her full entitlements which have been denied him/her during the period of interdiction.
Paragraph 030406 of the Rules further provides that where the officer has not been charged to court, he/she may be suspended pending investigation into the allegation of malfesance or misconduct against him/her. It has been held by the Supreme Court in a number of decided cases that such interdiction or suspension does not violate the fundamental rights of the officers involved. Therefore, it is misleading on the part of lawyers to insist that public officers who cannot explain their sources of wealth are presumed innocent until the contrary is established against them by a court of competent jurisdiction.
Some members of the ruling party and the opposition have accused the anti-graft agencies of engaging in selective prosecution of corrupt people in the country. The allegation should be investigated by the government with a view to ensuring that every corrupt person is charged to court. In the words of Professor Wole Soyinka, “A crime is a crime, but let that crime be spelt out fairly and the accused given an opportunity to defend him/herself. That is the only form of justice that lays a viable foundation for society, otherwise we are all reduced to a state of jungle justice.”(See The Republic of Liars). Let the anti-graft agencies proceed with the investigation of every public officer who is alleged to have embezzled public funds. If any of them is indicted let him/her be charged to court. Otherwise, the Government may lose the moral right to prosecute other corrupt elements in the society.
Femi Falana (SAN) writes from Lagos.
This address was delivered at the investiture of Mr. Dare Oseni as the 2015/2016 President of the International Association of Lions Club, Lagos Isolo Lions Club at Samkoll Graden Idimu, Lagos State on November 8, 2015.

No comments:

Post a Comment