Why Government Loses Corruption Cases By Femi Falana

Introduction: Following the loss of corruption cases last week many Civil Society Organizations (CSOs) agree with the Federal Government that corruption is fighting back. However, before pointing accusing fingers at the judiciary it is pertinent to examine the facts and circumstances of the loss of such cases. In sharing my findings with the representatives of the CSOs gathered here I shall predict that the government stands to lose more corruption cases unless the federal government is prepared to reorganize the anti-graft agencies and review the anti-corruption policy in line with the proposals designed by the Presidential Advisory Committee Against Corruption.

Concern over loss of prosecution cases

Following a string of court rulings against high-profile corruption cases last week, CSOs have expressed the view that corruption is fighting back. On its own part, the Socio-Economic Rights & Accountability Project (SERAP) has called on President Buhari to “adopt a revolutionary approach to his government’s fight against corruption by referring high-level official corruption cases to the International Criminal Court for investigation and possible prosecution”. It may interest SERAP to know that I actually submitted a petition to the office of the Special Prosecutor of the International Criminal Court in October 2015 on the same subject matter. My petition had alleged the commission of a crime against humanity by military officers and other police officers who engaged in the criminal diversion of $15 billion earmarked for the procurement of arms and ammunition which led to the brutal killing of over 25,000 people and the displacement of two million people by the Boko Haram sect.

Former President has also expressed concern over the loss of corruption cases by the Federal government. While blaming the development on lack of proper investigation and poor prosecution Chief Obasanjo has asked the government to rely on “ ogbologbo lawyers” and stop the practice of farming out corruption cases to external lawyers. With profound respect, the “ogbologbo lawyers” that President Obasanjo has in mind are no longer easy to come by Hence, under the Obasanjo administration both the ICPC and EFCC led by the Honourable Justice Mustapha Akanbi (rtd) and Mallam Nuhu Ribadu respectively engaged the services of external lawyers in the prosecution of many high profile cases. In fact, Mr. Rotimi Jacobs SAN who has successfully prosecuted more corruption cases than any lawyer in Nigeria is an external lawyer.

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 interagency cooperation by the federal ministry of justice, the anti-graft agencies and the State Security Service. In order to appreciate the basis of my conclusion, it is pertinent to review the facts of the cases which were lost last week.

FRN v MIKE OZEKHOME

In the course of investigating the criminal diversion of the sum of $2.1 billion from the office of NSA the EFCC claimed that it had traced N2.3 billion to Mr. Ayo Fayose, the governor of Ekiti state. On the basis of the finding, the EFCC applied for and obtained an order ex parte from Idris J. of the Lagos judicial division of the federal high court to freeze the accounts of Mr. Fayose’s account at the Zenith Bank. But the application to vacate the order filed before the Ado Ekiti judicial division of the court was granted by Taiwo J. The EFCC promptly appealed against the order.

However, further investigation revealed that N75 million was paid as a legal fee to Mr. Mike Ozekhome, the counsel to Mr. Fayose. At that juncture, the EFCC applied for and obtained an order ex parte to freeze Chief Ozekhome’s account from Anka J. of the Federal High Court sitting in Lagos. The senior counsel applied to set aside the order. In setting aside the ex parte and unfreezing Chief Ozekhome’s account Anka J. held that he could not sit as an appellate court over Taiwo J. who had order that Mr. Fayose’s account be unfrozen. The EFCC has filed an appeal against the order. All hope is not lost as the EFCC has appealed to the Court of Appeal to set aside the order of Taiwo which unfroze the account of Governor Ayo Fayose.

FRN V ORUBEBE

The Defendant was charged with criminal diversion of N1.9 billion from the money earmarked for the construction of the east-west road. The ICPC was prosecuting the case. But at the resumed hearing of the matter last week the Honourable Attorney-General of the Federation filed a nolle prosequi seeking to withdraw the case pursuant to his powers under section 174 of the Constitution. Consequently, the case was struck out while the defendants were discharged. Once the case was discontinued by the Prosecution based on the instruction of the Attorney-General the trial judge had no choice but to strike it out.

FRN v MRS. PATIENCE JONATHAN

The EFCC traced the sum of $5.9 million to the account of the respondent. Convinced that the fund was a proceed of crime the EFCC applied for an order freezing the account. The respondent filed an application to unfreeze the account. As no counter-affidavit was filed challenging the application it was granted by Olatoregun J. last week. Instead of pursuing an appeal the EFCC may wish to consider all available options in the circumstance. In particular, an application may be made before the same court praying that the order be set aside based on cogent reasons.

FRN v JUSTICE ADENIYI ADEMOLA & 2 ORS.

Following the raid on the homes of seven judges last year the defendants were arraigned in court on an 18-count charge. When the prosecution closed its case the defendants filed a no case submission. In a marathon ruling delivered last week the learned trial judge, Okeke J. upheld the no-case submission struck out the case and discharged the defendants. With respect, the learned trial judge ought not to have considered the merit of the case and the credibility of witnesses in the ruling. Having regard to the facts and circumstances of the case coupled with relevant decided authorities on no case submission I am of the strong view that the government has an arguable appeal.

I suggest that the appeal already filed against the ruling of the learned trial judge by the government should be pursued with vigor. My belief in the possibility of the success of the appeal is anchored on the cases of Olawale Ajiboye v The State (1995) 8 NWLR (PT 414) 408 wherein the Supreme Court had this to say:

“It must be recognized that at the stage of a no case submission, the trial of the case is not yet concluded. At that stage, therefore, the court should not concern itself with the credibility of witnesses or the weight of their evidence even if they are accomplices. The court should also at this stage be brief in its ruling at too much might be said which at the end of the case might falter the court’s discretion. The court should again at this stage make no observation on the facts. (See for example R. v. Ekanem (1950) 13 WACA 108, Chief Odofin Bello v. The State (1967) NMLR 1, R v. Coker & Ors. 20 NLR 62.”

Limited capacity of anti-graft agencies

On a dispassionate consideration of the aforementioned cases, it is my submission that the courts cannot be blamed for the official negligence as well as the lack of interagency collaboration and coordination of the investigation and prosecution of corruption cases by the federal government. On some occasions, the State Security Service has refused to produce accused persons in court without any reason whatsoever. The development has led to the unnecessary delay in the prosecution of very serious corruption cases. It is obvious that the federal government wants to eat omelet without breaking eggs. It won’t work. Was it not because the accused persons had put together teams of senior and experienced lawyers that the federal government decided to set up of a national prosecution agency? But as no fund was made available to the agency corruption cases have not been assigned to the members of the agency. With the virtual collapse of the agency, the anti-graft agencies have been left on their own.

No doubt, the lawyers of the anti-graft agencies are largely industrious and committed to the fight against corruption. With a few investigators and persecutors working under a hostile environment, the EFCC has almost performed miracles! In other words, the investigators and prosecutors are hampered by a lack of experience and exposure. They are also overstretched and overwhelmed. In spite of such shortcomings, the EFCC has secured not less than 200 convictions in the last one year. In fact, some of the convicts are politically exposed persons including an ex-MD of NIMASA, an ex-governor, former chairman of local government councils and fuel subsidy fraudsters. Funds and properties worth hundreds of millions of dollars and billions of Naira have been seized and forfeited to the federal government.

As I did advocate in another forum last year, the military officers who diverted billions of dollars and naira earmarked for procurement of arms and armament should be charged before courts martial “for the serious offences of aiding the enemy, mutiny by impeding or sabotaging the counter-insurgency operations and stealing of public funds in contravention of sections 45, 52 and 66 of the Armed Forces Act. The proposed trial before such military courts will meet the justice of the case and the expectations of the public. More so, that the Rules of Procedure applicable in courts-martial have no room for frivolous adjournments, motions for bail, interlocutory appeals and preliminary objections.” With the handling of cases of indicted military officers by experienced military police investigators and prosecutors before courts-martial, the lawyers serving in the anti-graft agencies will have more time to concentrate on other cases.

Illegal opposition to bail applications by anti-graft agencies

One of the reasons why I have never prosecuted for the anti-graft agencies is the lackadaisical attitude of the government to the prosecution of corruption cases. I also cannot support the media trial of criminal suspects and the official policy of opposing the bail applications of criminal suspects. In Ameh Ebute V State (1994) 8 NWLR (Pt 360) 66 it was held that a suspect himself to the Police voluntarily is entitled to bail. In Ibori v. FRN (2009) 3 NWLR (pt 1127) 96 the Court of Appeal held that a person accused of economic crime is entitled to bail. Both decisions are binding on our courts and all authorities and persons.

Yet, the anti-graft agencies send lawyers to court to waste precious time on opposing the bail applications of suspects who might even have been granted administrative bail by them. Why should a serious lawyer go to court to ask a judge to lock up a suspect who has been granted bail and has never interfered with the investigation or attempted to jump bail? Instead of saving time and resources by asking for hearing dates prosecution counsel prefer to file copious counter-affidavits and written addresses in opposition to bail applications of accused persons.

Since bail has become automatic in the country let anti-graft agencies stop opposing bail application filed by suspects unless there are genuine grounds for filing objections. Bail should not be opposed as an official policy of a government. The government should stop playing into the hands of some persons accused of criminal diversion of public funds by refusing to comply with the orders of courts admitting them to bail. For some inexplicable reasons, the government has refused to comply with the orders of the ECOWAS Court, the FCT High Court and the federal high court to the effect that former National Security Adviser, Col Sambo Dasuki (rtd) be admitted to bail. In a similar situation, the federal high court did not allow the government to arraign retired Commodore Umar Mohammed until the order admitting him to bail was complied with.

The Buhari administration has directed the anti-graft agencies to ensure that corruption cases are not lost again. It is doubtful if the federal government is aware of the limited capacity of the anti-graft agencies. For instance, the ICPC receives an average of 100 petitions daily. The EFCC receives many more petitions from members of the public. Yet, the current EFCC leadership inherited a staff strength of 2,173. Even with the plan to engage 750 more staff, the EFCC will still have less than 3000 staff. The implication is that with such a few investigators and prosecutors the success rate of the agency is bound to be extremely limited.

While the concern of President Buhari is appreciated it ought to be pointed out that without adequate funding of the anti-graft agencies and motivation of investigators and prosecutors many more corruption cases are going to be lost to accused persons who have access to a well-prepared and well-paid team of lawyers. The British government spent millions of pounds on the investigation and prosecution of a former governor in Nigeria. If the government is genuinely desirous to win corruption cases it should be prepared to invest in the anti-graft agencies. The British government was reported to have spent about £20 million pounds on the investigation and prosecution of a former governor in Nigeria. As a matter of urgency, the government should immediately set aside part of the recovered loot to fund the investigation and prosecution of corruption cases.