by Femi Falana

Corruption manifests itself in numerous and varied ways. It could be petty or incidental, involving small-scale embezzlement, misappropriation, bribes, favouritism or discrimination. Corruption can also be more systematic and include bribes and kickbacks by private and public actors, large-scale embezzlement and misappropriation of funds and economic privileges accorded to special interests. The causes of corruption are numerous and interrelated. They consist primarily of a socio-economic system that is built on ruthless exploitation and diversion of public wealth. The second cause is the illegal action of a few individuals and their insatiable ambition for political and economic power in clear and direct detriment of the common good.

Therefore, uprooting the systemic, entrenched official corruption that has plagued the country for many years requires a long-term, multifaceted strategy, but a key component of this approach must be an effective criminal prosecution.

The main international and regional legally binding treaties applicable to Nigeria on the role of prosecutors in criminal justice system and in the fight against corruption include: the United Nations International Covenant on Civil and Political Rights; the United Nations Convention Against Corruption; the African Union Convention on Preventing and Combating Corruption and the African Charter on Human and People’s Rights. There is also “soft law” such as the United Nations guidelines on the role of prosecutors.

Given the important role the prosecutor plays in the fight against corruption, it is trite that prosecution agencies must be fully independent.

Thus, in addition to budgetary independence, the decision whether to prosecute or not should be for the prosecution office alone and not the executive or the legislature match.

While broad structural measures addressing the root causes of corruption must be the core of sustainable reform, the day-to-day presence and pressure of credible, effective criminal law enforcement is what stimulates and sustains the momentum of an anti-corruption campaign.
Criminal convictions make the most visible statement that corruption will not be tolerated. Effective law enforcement and prosecution agencies can supply short-term political capital necessary to sustain public support for long-term corruption reduction actions, while a failure to deliver can sap public support, allowing anti-corruption campaigns to atrophy.

The Attorney-General of the Federation is empowered to institute and undertake criminal proceedings against any person before any court of law in Nigeria in respect of any offence under an Act of the National Assembly; to take over and continue or discontinue any criminal proceedings that may have been instituted by any other authority or person and to discontinue at any stage before judgement is delivered any such criminal proceedings.   However, in exercising the aforesaid powers, the Attorney General shall have regard to “the public interest, the interest of justice and the need to prevent abuse of legal process”. In the same vein, it is the constitutional responsibility of the attorneys-general of the states of the federation to prosecute persons who contravene the penal laws enacted by the Houses of Assembly of such states.

Instead of exercising their powers, many state attorneys general have given fiats to the anti-graft agencies to prosecute ex governors and other persons indicted for looting the treasury of state governments. In fact, no form of assistance is rendered by the directors of prosecution to the anti-graft agencies in the recovery of public funds stolen from state and local governments. Notwithstanding the enormous powers of the Attorney General over the prosecution of federal offences, the prosecution units of the Independent Corrupt Practices and Other Related Offences Commission (ICPC) and Economic and Financial Crimes Commission (EFCC) are at liberty to institute criminal proceedings without the consent or authority of any authority. This submission is anchored on the case of Comptroller General, Nigerian Prisons Service v. Dr. Femi Adekanye & Ors. Where the Supreme Court held:

“It is clear from the provisions of Section 160 of the 1979 Constitution that the Attorney General’s powers of public prosecution is not exclusive; the ‘any other authority or person’ in subsection (1) can institute and undertake criminal proceedings. The Central Bank of Nigeria and Nigerian Deposit Insurance Corporation are also authorities that can institute criminal proceedings under Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree, 1994. (See section 24 thereof). The Attorney-General can institute and undertake criminal proceedings in any court in Nigeria, other than a court martial in respect of any offence and can take over or discontinue any such proceedings instituted by any other authority or person.”

Based on section 174(1) of the 1999 Constitution and the decision of the Supreme Court in Comptroller-General, Nigeria Prison Service v. Adekanye (supra), it is submitted that the anti-graft agencies can undertake and institute criminal proceedings provided that the Attorney General of the Federation can take over and continue or discontinue them in the public interest. In the prosecution of economic and financial crimes including corruption, the anti-graft agencies are not subject to the control or interference from the executive prosecutors and should ensure that the government and powerful defendants do not hijack the criminal justice system. The recent discontinuance of the corruption case brought against Mr. Mohammed Abacha by the Attorney General of the Federation, Mr. Mohammed Adoke, the Transparency International criticised SAN. In justifying his action, the justice minister stated that the withdrawal was in the public interest as it was designed to facilitate the repatriation of hundreds of millions of dollars stolen by the late military head of state, General Sani Abacha, but tied down in litigation in many countries. No doubt, Nigeria is ahead of other nations in the recovery of such stolen wealth, it is however hoped that the federal government will account for the over $3 billion recovered so far from the loot.

A couple of days ago, the EFCC discontinued a N6 billion corruption case pending at the federal high court against a former minister. Although no reason was adduced for the withdrawal, the case was accordingly struck out. It is however if the EFCC could withdraw a part heard criminal case without presenting to the trial court a nolle prosequi signed by the Attorney General of the Federation. In the prosecution of corruption cases, prosecutors should ensure that preliminary objections are speedily dealt with by trial courts and prevent delay of cases through motions for stay of proceedings filed by accused persons. Section 40 of the Economic and Financial Crimes Commission Act has prohibited the suspension of the trial of cases on the basis of interlocutory appeals filed by defendants. The constitutional validity of the provision has been upheld by the Court of Appeal in the case of Ajiboye V. F.R.N (2013) 17 W.R.N 127 at 142 where it was held:

“The provision, section 40 of the Act, exhibits all the elements/incidence of ouster clause. It has clearly made this specie of application for a stay of proceedings with regard to criminal matters initiated by the Commission non-justiciable. In clear terms, the provision has divested the court of the requisite jurisdiction to adjudicate over any application for stay of proceedings germinating from a criminal trial being prosecuted by the Commission.”

In order to fast track the hearing of cases pertaining to offences of terrorism, rape, kidnapping, corruption, money laundering and human trafficking and appeal arising therefrom, the Supreme Court, Court of Appeal and the Federal High Court have issued Practice Directions to ensure. Curiously, counsel representing the anti-graft agencies has not taken advantage of the said Practice Directions by praying the courts to accord priority to corruption cases.

Contrary to the provisions of the Mutual Legal Assistance Agreement, which exists between Nigeria and the United Kingdom, a former Attorney General of Nigeria, Mr. Michael Aandoaka (SAN), attempted to frustrate the investigation and prosecution of Chief James Ibori, an ex-governor of Delta State. But in spite of his desperate moves, the ex-governor was eventually tried and convicted in the United Kingdom where he is currently serving a 13-year jail term. Embarrassingly, he had been freed by the Federal High Court in a mock trial in which the accused rejected the prosecutor appointed by the EFCC and chose his own prosecutor as well as the defence counsel!

Having not learnt any lesson from the disgraceful case of Chief Ibori, the federal government is currently embroiled in an unnecessary controversy with South Africa over the arrest of two Nigerians and an Israeli for smuggling the sum of $9.3 million into that country.  The three suspects are alleged to have contravened the provisions of Section 30 of the Financial Intelligence Centre Act NO 38 of 2001 of South Africa which stipulates that a person intending to convey an amount of cash in excess of the prescribed sum of $10,000.00 to or from South Africa “must report the prescribed particulars concerning that conveyance to a person authorised by the Minister for this purpose”. The centre applied for an order of interim forfeiture from a High Court for seizure of the fund. In granting the application, the court ordered that the fund be kept in the Reserve Bank for 90 days. Within that period, the suspects are at liberty to convince the court why the fund was not declared. Otherwise, a final order will be made for the confiscation of the money.

As the said sum of $9.3 million was not declared at the Nnamdi Azikiwe International Airport Abuja, the suspects equally breached Section 1 of the Money Laundering Act 2011 of Nigeria which provides that the “transportation of cash or negotiable instruments in excess of $10,000.00 or its equivalent by an individual in or out of the country shall be declared for the Nigeria Custom Service” which shall report same to the Central Bank of Nigeria (CBN) and the EFCC. Instead of allowing the suspects to hire lawyers to contest the seizure of the said sum of $9.3 million in the South African court, the federal government has said that the huge cash was meant for the purchase of arms. So far, the South African Government has rejected the explanations adduced by Nigeria for not declaring the money.

Relying on diplomatic resolution of the money laundering case by Nigeria will not yield any result. In a country where President Jacob Zuma was investigated and recently cleared over the pricey upgrades to his sprawling private residence at Nkandla in the Kwazulu-Natal Province, the government of South Africa will not interfere in the pending case of the seizure of the $9.3 million. Unlike here where the suspects might have been granted amnesty leading to the release of the funds, the legal system in South Africa requires that the matter be heard and determined by the court without any political interference whatsoever.

The President of the Christian Association of Nigeria (CAN), Pastor Ayo Oritsejafor, whose private jet was used to ferry the money to South Africa, has denounced those who have dared to challenge the involvement of a plane bought for evangelism in the alleged smuggling of laundered money. In spite of the diversionary statement of CAN, the influential pastor cannot dismiss the scandal with a wave of the hand. With respect, the explanation by CAN that the jet was leased to another company is an admission of the breach of the law.

A jet registered for the facilitation of evangelism cannot be leased to another company for commercial purposes as churches are registered under part C of the Company and Allied Matters Act as non-profit making organisations. In recent times, some of our pastors have been indicted in the United Kingdom for investing church funds in business in violation of the Charity Act. If Pastor Oritsejafor is lucky that he is not prosecuted for breaching the CAMA, he owes Nigerians a public apology. The CAN leadership cannot afford to engage in attacking its political opponents in a matter pertaining to the breach of the law.

The Senate has said that the money in question belongs to the federal government. That is merely begging the question. Assuming the federal government owns the fund, why was it not declared at the Nnamdi Azikwe International Airport, Abuja and at the Oliver Tambo Airport in Johannesburg as required by the money laundering laws of both countries? The fact that the businessmen were awarded a contract for the purchase of arms by the federal government does not indict the latter or make it vicariously liable for the alleged criminal action of the contractors.

Therefore, the federal government should stop embarrassing the country by justifying the brazen impunity of the three suspects. If and when they return to Nigeria, they should be arrested by the EFCC and prosecuted for the blatant violation of Section 1 of the Money Laundering Act, 2011 which provided that the payment of the sum of $9.3 million to them by the federal government is not a defence under the law. After all, Mr. Aminu Lamido, the son of the governor of Jigawa State was recently prosecuted for not declaring $40,000 while travelling out of the country.

Although the EFCC and the ICPC are independent institutions, the Executive has overbearing influence on them. Public officers and members of the ruling party largely constitute the boards of both agencies. It is common knowledge that both the Code of Conduct Bureau and the Code of Conduct Tribunal are departments in the Presidency! Indeed the prosecution of cases before the Code of Conduct Tribunal is the exclusive preserve of the Attorney General of the Federation. Since the anti-graft agencies are not independent of the Executive, the independence and impartiality of the prosecutors of the anti-graft institutions cannot be guaranteed.

In order to stop political interference in the investigation and prosecution of criminal offences including corruption cases, the federal and state governments ought to adopt the recommendation of the recently concluded National Conference that the office of the Attorney General be separated from that of the Minister of Justice in a way that the two offices are not held by the same person. This is the current practice in the United Kingdom and in 10 out of the 15-member states of the Economic Community of West African States (ECOWAS). Under that arrangement, the minister or the commissioner for justice will be a cabinet member, while the Attorney General will be independent of the Executive and prosecute all indictable offences in the public interest.

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Op-ed pieces and contributions are the opinions of the writers only and do not represent the opinions of Y!/YNaija.