By Joseph Jibueze
After losing strings of high-profile cases bothering on corruption, the Federal Government is banking on appeal to keep the cases alive. But several factors are responsible for the losses. JOSEPH JIBUEZE examines the losses and writes that there must be thorough investigation, diligent prosecution and committed judiciary for Nigeria to win the anti-corruption war.
The war against corruption has had mixed results. The leading anti-graft agency – the Economic and Financial Crimes Commission (EFCC) – has recorded some successes with the recovery of looted assets. It has also lost some cases in recent times.
Several factors are responsible for the loss of the cases, among which is the lack of water-tight evidence arising from poor investigations.
Experts have blamed the trend on lack of thorough investigation, diligent prosecution and committed judiciary as primary reasons for the loss of some of the cases.
Activist-lawyer Mr. Femi Falana (SAN), believes some of the cases were lost due to official negligence and lack of inter-agency cooperation.
To him, if the anti-graft and security agencies collaborated well, they would help one another with the needed evidence to successfully prosecute cases.
“Having reviewed the circumstances under which the corruption cases were lost by the Federal Government, I can say, without any fear of contradiction, that there is no basis for blaming the judiciary. It is also not a case of corruption fighting back.
“As far as I am concerned, the cases were lost due to official negligence and lack of inter-agency cooperation by the Federal Ministry of Justice, the anti-graft agencies and the Department of State Servicea (DSS)” , Falana said.
One of the major high profile cases that the government lost recently is that involving Justice Adeniyi Ademola of the Federal High Court, his wife Olubowale and a Senior Advocate of Nigeria (SAN), Mr. Joe Agi.
On April 5, a High Court of the Federal Capital Territory in Maitama, Abuja, dismissed all the 18 counts brought against them, including gratification charges.
Justice Jude Okeke discharged and acquitted the three defendants in a ruling, upholding their no-case submissions.
The prosecution had accused Justice Ademola of receiving, through his wife, gratification running into N30 million from Agi in April 2015.
Justice Ademola also allegedly received through his son, Ademide, a BMW car with a market value of N8.5 million from Agi in January 2015.
Justice Okeke held that the prosecution failed to make out a prima facie case against the defendants, in spite of calling 19 witnesses and tendering a load of exhibits marked A to ZZZ.
Worried by the increasing loss of anti-graft cases, a civil society coalition, One Voice, said besides inter-agency rivalry, deficiencies in prosecution was contributory a factor.
One Voice is a coalition of civil rights organisations, including the Human Rights Law Service (HURILAWS), the Socio-Economic Rights and Accountability Project (SERAP), the Centre for Constitutional Governance (CCG), the Access to Justice (A2J), the Independent Advocacy Project (IAP), the Network on Police Reform in Nigeria (NOPRIN), among others.
One Voice, through IAP’s Director, Pastor Adedeji Adeleye, said the coalition was worried by the discrepancy in what criminal suspects pay defence lawyers and what the government pays prosecutors.
It called for a review of fees paid external counsel who prosecute corruption cases.
The group said the government may lose more corruption cases if lawyers representing its interest government are not well trained, motivated and remunerated.
One Voice urged the EFCC to desist from “media trial”, but to strengthen its capacity and conduct more thorough investigation so as to have water-tight evidence that can nail suspects in court.
Is EFCC’s prosecution capacity overstretched?
The EFCC’s prosecution department appears to be overstretched. Nearly all high-profile cases being handled by the commission in Lagos courts are prosecuted by an in-house counsel, Mr. Rotimi Iseoluwa Oyedepo.
Analysts believe corruption cases will be determined more quickly where prosecutors limit themselves to a few cases and handle them efficiently.
To them, EFCC needs more strong hands to support Oyedepo, who many believe is “overworked”.
Sometimes some high-profile cases have been stalled due to Oyedepo’s inability to handle all them due to other commitments.
On March 30, Oyedepo’s absence stalled the trial of a Federal High Court judge, Justice Rita Ofili-Ajumogobia and a Senior Advocate of Nigeria (SAN), Godwin Obla, at the Lagos High Court, Ikeja.
Oyedepo was said to be simultaneously handling another case at the Court of Appeal, Lagos Division.
Obla’s counsel, Ifedayo Adedipe (SAN), expressed disappointment at the absence of the EFCC prosecutor, noting that Oyedepo failed to serve the defence with any letter explaining his absence.
“My Lord, we came here this morning to be confronted with a letter from the prosecution, stating that he could not be present in court because he is presently handling a case at the Court of Appeal. I am surprised that the prosecution did not deem it fit to serve the defense with a copy of the letter”, Adedipe said.
On May 10, Oyedepo’s absence stalled the trial of former Senior Special Assistant to ex-President Gooluck Jonathan on Domestic Affairs Waripamo-Owei Dudafa and others.
Oyedepo had written a letter seeking for an adjournment. The letter stated that the prosecutor was on a national assignment outside the court’s jurisdiction.
Dudafa’s counsel, Mr. Gboyega Oyewole, said it was an “unfortunate situation” for the defendants.
Another defence counsel, Mr. Ige Asemudara, said he was surprised that the prosecutor would not be in court because of a “national assignment” which was not well explained.
On May 16, the trial of Chief Rickey Tarfa, SAN, was stalled due to Oyedepo’s absence.
Tarfa is standing trial on a 27-count charge of, among others, age falsification and offering of gratification to a public officer, pressed against him by the anti-graft agency.
Defence counsel Abiodun Owonikoko (SAN), said: “I am taken aback by the prosecution’s absence. No letter was given to the defence to explain their absence.
“I can confirm that yesterday, I was in court with Mr Oyedepo for another matter and there was nothing to indicate that he would not be in court. Since that time, I have been to Kaduna and back. It is not fair on the defendant.”
Other high profile cases being handled by Oyedepo are those of former President Goodluck Jonathan’s wife, Dame Patience, former Nigerian Maritime Administration and Safety Agency (NIMASA) Director-General, Dr. Patrick Akpobolokemi and former Nigerian Airspace Management Agency (NAMA) Managing Director/Chief Executive Ibrahim Abdulsalam.
Others are: former Chief of Air Staff (CAS), Air Marshal Adesola Amosu (rtd), Permanent Secretary in the Ministry of Labour & Productivity, Dr. Illoh Clement, Independent National Electoral Electoral Commission (INEC) staff Christian Nwosu and Tijani Bashir, among others.
Need for diligent prosecution
Presidential Advisory Committee against Corruption (PACAC) chairman Prof Itse Sagay (SAN) said the body has designed guidelines for prosecutors.
He said: “PACAC has produced a manual on prosecution. It essentially recommends teams for prosecution rather than individuals.
“When a case arises for investigation, there is an investigator who looks for evidence. He works with lawyers and experts who will guide him on what constitutes the evidence required to prove the offence. The team of five or six meets to determine if there is sufficient evidence to go court.
“The idea is to do team work, conduct comprehensive and exhaustive investigation to establish a strong case in order to achieve efficient prosecution and speedy adjudication”, Sagay said.
Lawyers have called for the strengthening of the prosecuting arms of anti-graft agencies if the war against corruption must be won.
A SAN, Dr. Wale Babalakin, said prosecutors can only win well-investigated cases.
He said: “Prosecution of criminal cases should only take place after a very thorough investigation and review of the evidence by very seasoned legal practitioners. Poor prosecution of cases has considerable negative effect on the legal system.
“It gives an impression that there is an undisclosed agenda in the institution of criminal cases. It does not appear that the focus is to achieve conviction in accordance with law.
“The idea that the prosecution would seek to adjourn the trial of criminal cases because it requires more time to adduce or compile evidence must be very strange to those who are familiar with the operation of the common law in prosecution of criminal cases.”
A former United Nations (UN) International Criminal prosecutor, Charles Adeogun-Phillips, reiterated the fact that proper investigation and commitment are key to winning cases.
“As a prosecutor, you must always remember that your case is only as good as your evidence. And you need proper investigations in order to generate sound evidence capable of assisting you in discharging the burden of proof which, only you, as a prosecutor, must carry.
“As a prosecutor or an investigator, you must also understand that you cannot build cases based on or around your emotions, suspicion or even intuition that a crime has been committed. You build criminal cases based on evidence and sound evidence at that.
“As a prosecutor you are not allowed to shift the burden of proof on the defendant to show why he or she is not guilty of the crime you have charged. The defendant has no burden to discharge,” he said.
Adeogun-Phillips urged the government to equip the anti-graft agencies and provide them with the wherewithal.
He said: “I am appalled at the conditions in which some of my colleagues in law enforcement agencies work. They have little or no facilities to carry out their functions.
“There are no proper interview rooms, talk less of the ability for the investigators to obtain a contemporaneous record of what is being said at the interview, either by way of audio or video recording.
“All you have are these confessional statements which are obtained in the most cohesive of circumstances. That is extremely dangerous when you are confronted with a defence counsel who is experienced at dealing with evidential issues.
“And that is chiefly why these cases fail and not because prosecutors or investigators have been compromised as is being widely and unfairly speculated.
“They are way too open to challenges by the defence and I will know, after all I have acted on both sides of the divide – prosecution and defence. The time has come when there must be at least audio recording of interviews. Of course, video recordings would be better.”
On what is expected of prosecutors, he said: “The prosecutor should lead the investigator and not the other way round. What you currently find is that the investigators work in isolation and then dump the case file on the prosecutor when they are done and expect him or her to proceed to trial.
“To achieve water-tight cases, you need a prosecutor, who is aware of what he needs to prove at trial to direct you the investigator. This way you are able to provide him with the evidence he or she needs to discharge the burden of proving the case – a burden which can never be shifted on to the defendant to prove his or her innocence, as is often the case here.”
A professor of law, Prof Yemi Akinseye-George (SAN), urged the government to adequately fund anti-graft agencies well.
“In the justice system, the output very much depends on the input. You cannot be putting in pittance in support of your prosecutorial agencies and expect that you get the desired result. The prosecutors are doing their best within the available resources but there is limit to what they can do.
“They need support and they need to be able to protect their witnesses. So, government needs to rethink their attitude towards resourcing the anti-corruption agencies.
“And it is in the interest of government to do this because if you put in more resources in the anti-corruption agencies, you will be able to recover more of the looted funds.
“It is not just about throwing money there, it is also about organising the prosecutors, providing technical support for them, monitoring what they are doing and generally strengthening their capacity.”