Delay in EFCC trials: Who is to blame?

Delay in EFCC trials: Who is to blame?

By Felix Adewumi

Background

To some public office holders, the fear of the Economic and Financial Crimes Commission (EFCC) is the beginning of wisdom. This has been the case when former President Olusegun Obasanjo saddled Mr Nuhu Ribadu with the EFCC duty.

The uproar that followed the arrest and subsequent arraignment of former Inspector general of Police, Mr Tafa Balogun after Ribadu brought him to the court in handcuff showed the resolve of the anti graft commission to track down corrupt public office holder.

Perhaps more interesting was the rate at which the anti graft commission clampdown on some former governors where Dr Ayo Fayose of Ekiti, Chimaroke Nnamani, (Enugu), Orji Kalu (Abia), Rashidi Ladoja (Oyo), Chief Lucky Igbinedion and Joshua Dariye (Plateau) were all arraigned.

However, following the removal of Ribadu as the EFCC boss and the subsequent replacement of his position with Mrs Farida Waziri, the commission experience little lull in which the commission concentrated on the arraignment and subsequent sentencing of Chief Olabode George, a PDP chieftain while the Femi Fani Kayode suit drag on to the Court of Appeal.

EFCC finally had another field day when they were made to arrest and arraign some bank chiefs affected by the Sanusi’s restructuring exercise.

With this renewed sense of responsibility, the commission started a manhunt for some of the bank chiefs, while some surrendered (Cecelia Ibru, Francis Atuche, Charles Ojo and others); Erastus Akingbola of Intercontinental Bank took to his heel only to later surrender himself to EFCC 11 months after.

Convictions and recovery

Since the emergence of Mrs. Farida Waziri as EFCC chairman, in addition to the high profile cases she inherited from her predecessor. Ribadu, her commission has recorded reasonable success in high profile arrests of top politicians, captains of industries, Directors-General of federal institutions. Her only constrain is that there has not been any tangible conviction to show for it due to manipulations and frustration of the cases by those arraigned when they are granted bail.

At a media chat once, Mr Femi Babafemi, EFCC spokesman pointed out that about 25 persons have so far been convicted just within the short duration of Waziri’s stay in office and not less than N3 billion naira had been recovered by the commission.

The EFCC spokesman pointed out that some high public office holders like Senator Iyabo Obasanjo-Bello, Chief Kenny martins, Bode George, Femi Fani-Kayode, Chief Bablola Aborishade and other members of the Petroleum Equipment Foundation who are considered as untouchables, had been charged for corrupt enrichment by the commission.

According to the EFCC spokesman, Mr. Femi Babafemi, not only has the trial of some governors continued in the courts, the recent arraignment of former governors, Michael Boatmang and Boni Haruna, was a clear testimony that the bar of the anti-corruption has been raised.

However, with the celebrity status of these arrests and arraignment of these men and women of power for corruption and money laundering by the EFCC, the fears that there is the possibility of manipulations and frustration of their trials and the subsequent long court adjournments, many Nigerians are wondering if this is not the end of the some of those cases.

The fears of these Nigerians have their roots in the country’s recent history, before the end of the last administration, several EFCC and ICPC reports had indicted a number of ex-governors. The amount of funds the EFCC traced to the former governors was mind-blowing. In 2006, the commission claimed to have recovered more than $5billion.

Apart from stealing from monthly allocations, some of the governors reportedly compounded their states’ financial crises by taking questionable loans from banks.

But over two years after some of these former governors were charged to court by the anti-graft agency and granted bail by the courts, they still walk the streets freely and travel abroad unencumbered and given their clout, they have the capacity to manipulate and frustrate their trials.

To this end, these Nigerians are worried that the bail granted the bank chiefs may have spelled doom for the case. They also wonder if the Justice Dan Abutu-led Federal High Court and the EFCC will record any tangible conviction from the charges preferred against them.

EFCC as a cog in the wheel of the trial?

Perhaps one very important facts is that EFCC had not also helped matter in some of those cases as they tends to bring about the delay thus allowing the matter to delay unnecessarily

A clear example was the Fani- Kayode’s matter which the EFCC once celebrated. No sooner as Fani –Kayode got his bail, that EFCC sought to tender computer printouts of statements of accounts belonging to the former minister to prove that the former minister committed financial crimes.

This moved was opposed by Fani-Kayode’s lawyer arguing that computer printouts are not admissible in evidence and Justice Ramat Mohammed, the presiding judge ruled that the computer printout is not admissible in evidence.

However, not satisfied with the ruling of the Federal High Court, the EFCC appealed and in June 2009, Justice Ramat adjourned the N230 million money laundering trial involving Fani-Kayode indefinitely to allow for the determination of the appeal.

After almost a year, the Appellate Court overturned the decision of the lower court and upheld the appeal of the Economic and Financial Crimes Commission, EFCC, by declaring that computer printout is admissible in evidence.

With this decision, everyone thought the coast is now clear for the continuation of the trial of Fani-Kayode, but the decision only gave him another tool to fight with and he headed for the Supreme Court to argue his case, thus the Fani-Kayode matter has spent close to two years without real trial even beginning.

Another situation is the way in which most of the cases are being handled with EFCC made to look like a disjointed group on numerous occasions.

Mr Olalekan Ojo, a Lagos Lawyer passed the buck of the blame on EFCC, according to him, in most cases, like during the trial of Nnamani, Fayose, Fani-Kayode, Bode George and others, EFCC came to court to inform the court that they are not ready to go on either because their witness is not around, their lead counsel is not available, they need to file a reply to an application or they need to file for extension of time.

Ojo, who famously defended Lateef Shofolahan, a former aide to the late Mrs Kudirat Abiola said it will not be correct to blame lawyers and judges in this situation.

“There are situations where adjournments were brought about by the absence of witnesses, I know of a case which suffered adjournment more than eight times due to the absence of just one witness” he said

However, Mr Foluso Fayokun, former Lagos Nigerian Bar Association (NBA) chairman, think lawyers have not really helped matters in this situation

“These days, lawyers are involved in all sorts of tricks. That have not helped the integrity of the legal profession, you find lawyers filing applications that the trials should not go on just to frustrate the suit.

According to him, lawyers file stay of proceedings, application for bail, challenge the charge itself and if they are ruled out, they go to the appellate court.

He pointed out that a lawyer duty is to ensure that his client’s case is resolved as quickly as possible so that it can be determined whether he is guilty or not and if he is guilty he should quickly serve his term and go about with his life.

“But most time what we find is lawyers who try to frustrate the hearing of the matter and that will not serve the best interest of the clients and even the legal profession. It does not give the profession a good name and shows that we don’t really know what we are doing” he said

Referring to Major General Ishaya Bamaiyi’s matter which suffers many adjournments because of the lawyers, Fayokun however faulted the judges for not talking their stands when it comes to treating frivolous applications.

“The judges are supposed to manage their courts and not allow flimsy application. If a lawyer is not willing to go on with his matter, the judge can proceed; there is no rule which says he can’t proceed if a lawyer refused to file his application.

On the part of the EFCC, he said if they are not ready with their case and failed to produce their witnesses or file the necessary papers; the judge should just strike out the matter and tell them to come back when they are ready.

“As far as I am concern it is the duty of the judge to say when they are ready they should bring the accused back. The court should not just be congested with cases, the lawyers should manage their courts in a way that they don’t waste their time on frivolities, if the lawyers want to engage in rigmarole exercises, the judge should not condone it, it is the duty of the judge to make sure that he does not grant unnecessary indulgence” he said

Need for Special Courts on Corruption?

Recently, the EFCC boss had at a public hearing on the Bill to amend the EFCC Act to empower it to refer cases to special courts on corruption, said the delay in the trial of suspects charged for corruption in the law courts was frustrating the operations of the commission.

She advocated the establishment of a special court to try corrupt officials to facilitate the commissions' operations. According to her the slow judicial process in the regular courts was a major challenge to the commission.

According to her in most cases, people are arrested and arraigned before the court only to be released the next day on bail.

“Honestly, we are getting frustrated because the man you picked up looks you in the face and tells you that you are wasting your time” Waziri admitted.

Waziri blamed the slow judicial processes Nigerian courts are known for and the bureaucratic and legalistic bottlenecks of the judicial system of this country for the main reason behind the setback in the quick arraignment and conviction of some of the suspects.

According to her, “the legal process takes quite a lot of money, energy, time, and deployment of personnel to get a single conviction. To speed up prosecution of our cases, the National Assembly should begin the process of creating special courts with the requisite jurisdiction bringing to book, public and private officials involved in corrupt acts", Waziri declared.

She has not failed to tell all that cares to listen that the court is responsible for the delay in the trial of some former governors and other corrupt officials her commission had arraigned.

She had argued that the judiciary was slowing down the anti-graft war, as the rulings and other processes used by the accused persons to escape prosecution gives the impression that the EFCC is not living up to expectation.

“You know very well that their cases are in courts very many of them, about 12 of them. I have been crying out that the cases are being stalled in courts. They get lawyers and pay them heavily. They use the judicial system that is slow by nature to thwart the cases because they first of all challenge the jurisdiction of the high court and then go to the Court of Appeal to ask for stay of execution and then it is neither here nor there”. She said at a recent forum.

According to her, even cases that Ribadu took to court were still there, adding that it was worrisome.

Scoring her commission high, Waziri said, “Those people who do not like my face will say EFCC is not working. I cannot investigate, take the witnesses to court, exhibits are tendered, and the cases are adjourned. I cannot do anything more than I have done. A special court for EFCC-related offences will take us away from the undue legalities that many brilliant lawyers have capitalized on to twist the hand of the courts and the commission”.

However, Justice Abutu, chief Judge of Federal High Court, during his screening before the Senate Committee on Judiciary, Human Rights and Legal Matters faulted Waziri’s request for the establishment of a special court to try corrupt officials in the country.

Abutu argued that setting up special courts to try corruption and financial crimes cases would neither solve the problem of delayed justice nor boost the crusade against corruption in the country. Instead, he said the solution lies in the amendment of the provisions of the 1999 Constitution to reduce delays in the trial of cases.

“A solution cannot be found in creating a new court for EFCC. A solution can be found to the amendment of the provisions of the constitution to reduce delays in the trial of cases". He said

Instead, Abutu blamed delay in the trials to the various applications for interlocutory injunctions and stay of execution of court judgments, calling for the need to amend these provisions in the constitution that cause these delays.

“Even if the special court is established and it decides on a case, what will you do if an application for stay of execution is granted? There are too many interlocutory injunctions in the country" he argued.

one cannot forget the role played by the Federal Government too when Michael Aondoakaa, former Attorney general of the federation (AGF) deliberately or inadvertently, equivocating on sensitive issues which have enabled those charged and arraigned by the EFCC, including the former governors to capitalise on.

There was an occasion when the AGF directed the commission to always obtain clearance from his Ministry before prosecuting any accused persons in court.

Conclusion

Many EFCC cases are still pending at the court while the commission hope to still arraign more (Prof Ndi Onyuike, former NSE boss) when the green light is given, but there is the real need to address issue of delay in the trials if the commission hope ot achieve meaningful progress.