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‘Court of Appeal judgment on EFCC conflicts with established jurisprudence’

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Daramola SAN

The recent Court of Appeal judgment which held that the Economic and Financial Crimes Commission (EFCC), cannot try sitting judicial officers generated a lot of controversy as lawyers either applauded or criticized the decision.

A Lagos based Senior Advocate of Nigeria and Managing Partner, Afe Babalola Chambers, Olu Daramola is among those who criticized the decision. According to him, the judgment is against the established jurisprudence. He also said in arriving at the decision, the Court of Appeal has unduly stressed the concept of separation of powers.
The senior lawyer also said, there is no country in the world where the three arms of government exist in watertight compartments.

His words: “I view the judgment with some reservations. For me the judgment appears to be in conflict with established jurisprudence that only the courts can deal with criminal issues. Nobody is disputing the fact that the National Judicial Council (NJC) is vested with disciplinary powers over judicial officers. The only area of dispute is whether NJC must exercise its disciplinary powers before a Judge can be prosecuted in court for an alleged criminal offence committed in the course of his duty as a judicial officer.”

He pointed out that since the NJC has no power to try any criminal offence alleged against a judicial officer, there is no need for a prosecutorial agency such as the EFCC, ICPC or even the Attorney General to wait for the completion of the NJC disciplinary procedure before commencing criminal action.

“NJC’s power is limited to recommendation for appointment or dismissal of judicial officers to the President or the governor as the case may be and the exercise of disciplinary control over such officers. This explains why the power to appoint and remove Judges is vested in the President or the Governor. The concept of checks and balances is designed to prevent any arm of the Government from being a law unto itself,” he stated.

However, Daramola opined that the only consolation is that the judgment of the Court of Appeal can still be tested in the Supreme Court.

At best, the disciplinary procedure of the NJC is quasi-judicial and administrative, he noted, adding that it is not necessary for
agencies of government that have prosecutorial powers to wait for the completion of any administrative procedure before exercising their statutory or constitutional powers.

Daramola further stated that the argument that the immunity is to ensure that they are not distracted only begs the question. He said there is no reason why a public officer who embezzled public funds should be allowed to continue in office on the basis of immunity.

“Immunity breeds impunity. To win the war against corruption there must be no sacred cow. Whilst there is no limitation of time in the prosecution of criminal offences, we must recognise that any delay in prosecuting offences gives the accused or the offender the opportunity to tamper with evidence and witnesses and thereby frustrate any criminal proceedings that may later be instituted against him. Just recently, a bank officer came to court to give evidence that the bank document relating to the accused person got burnt. We have also seen instances where a witness volunteered a statement to EFCC only to come to court someyears after to allege that he was forced to make the statement. The case of the murder of Kudirat Abiola is still fresh in the memory. It is better for an offender to be prosecuted as soon as the offence was committed than to wait till when the evidence and witnesses might have disappeared.”

Also responding to question on the alleged imbalance in the appointment of judges to Court of Appeal, he said there must be caution before jumping into such conclusion because there are process involved in such appointment.

“Looking at the list, one is tempted to say straightaway that it is lopsided in favour of the North. We must resist the temptation of jumping into such conclusion without examining the facts. The best way to look at it is to consider the numbers of the Justices of the Court of Appeal including those newly appointed in the list. We can then look at appointment from each State or geopolitical Zone to determine whether or not it is fairly distributed. We also need to consider whether the appointments were made to fill vacancies arising from retirement of some Justices of the Court. For instance if there is a vacancy in the Court of Appeal as a result of the retirement of a Justice from Abia or the South East Geopolitical Zone, it is only fair that any appointment to fill the vacancy should come from the Zone”.

Daramola also described the feud between the EFCC and DSS as national embarrassment, which may scuttled the fight against corruption. “It’s strange that an agency of Government can prevent its operatives accused of crime from being arrested. There is no law that insulated DSS or NIA operatives from being arrested or prosecuted for any crime. I am indeed worried that the Presidency has kept mum over this issue which is capable of rubbishing the image of the country in the International Community. You would recall that DSS was alleged to have written the reports relied upon by the Senate to reject the nomination of Ibrahim Magu as EFCC Chairman.

“Considering the fact that the nomination was made by the President and that the two agencies report to him is Inconceivable, that the President was not aware of the report at the time of making the nomination. The question is: if he was aware of the report why did he not act on it?”.

On what he thinks about Maina, who said he has information to help government save billions of naira, the senior advocate said: “Maina issue is a serious embarrassment to the country. Unless properly handled it may give the impression that the Government is not serious about its anti-corruption campaign. If Maina has any information that can help the country to retrieve looted pension funds, he needs not engage in any drama before giving such information to the relevant agencies. He does not need any presidential invitation. The issue is that he himself has been accused of involvement in the looting of the pension fund.”

Reacting to the Hijab controversy at the call to Bar Ceremony, he said the controversy is unnecessary. To him, every profession has its own rules including dressing code.

“It’s inconceivable that a doctor will go to the theatre to perform operation in a flowing agbada. When you decide to join a group or a professional association, you cannot complain of their internal rules. The body of Benchers has done the right thing in enforcing the dressing code for the call to Bar Ceremony. The issue has been settled in decided cases including the case of Chinwo v Owhonda (2008) 3NWLR (1074) 341.

“The question to ask is this? Was she aware of the rules when she applied to the law School? She cannot deny knowledge because she like all other candidates signed application Form for admission into the law school and completed another form for the Call to Bar Ceremony. The dressing code is prescribed by law and ignorance of law does not excuse any person not to talk of a lawyer. Many commentators made reference to other countries where lawyers were allowed to dress in all manners permitted by their religions.

“Before you compare them with Nigeria, you need to look at their law. If their law permits it so be it. But until the Nigerian law is changed or amended, it is wrong to refer to what happens in other countries as a reason for condemning the action of the Body of Benchers in refusing to admit to the Bar any person who refuses to conform to the dressing code prescribed in the Legal Practitioners’ Act.”

On whether he supports the call for the scrapping of the Special Anti Robbery Squad (SARS), a special unit in police force, the senior lawyer said: “It will not solve the problem. The proper thing is to flush out the bad eggs in the system and give clear guidelines on their operations. The police must recognize that they need the support of the people to succeed. The present situation where people are scared of having any dealing with the police is not good for the image of the police and the security of the country. Police must be civil in their conduct.”

Daramola also suggested that the easiest way to decongest the prison is to give ‘suspended sentence in respect of minor and nonviolent offences’.

He said: “There is also the need to address the issue of delay in the administration of justice. One of the major reasons for the congestions are those held in prisons as awaiting trials. The court should be strengthened and provided with necessary infrastructure for the speedy and efficient delivery of justice. There is no reason why an accused person should remain in prison for more than three years before his case is decided.

“Just like Femi Falana (SAN), rightly pointed out few days ago the Chief Magistrates of all States should rise up to their duties of monthly inspection of all Police Stations and Detention Centers in their States to prevent and forestall illegal and prolonged detention of awaiting trial persons. Section 34(1), (2) and (3) of the Administration of Criminal Justice Act 2015 is clear on this. Doing this will go a long way in decongesting our police cells and prisons of awaiting trial persons and also decongest courts of abandoned criminal matters.”


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