Creating financial crimes division better than establishing new courts, say Nigerian lawyers
President Muhammadu Buhari during the election campaign, pledged to fight corruption to a standstill. Since he assumed office, he has underscored his determination to tackle financial crimes, though critics say his anti-graft campaign is not total. But the president had raised concern about the role of lawyers and the judiciary in the trial process. He is of the view that the regular courts might not be able to determine corruption-related cases promptly. The fallout of this line of thinking is the increasing call for the establishment of special courts for corruption cases. JOSEPH ONYEKWERE and BRIDGET CHIEDU ONOCHIE report that in weighing the implications of establishing them, lawyers favour the creation of financial crimes divisions in the existing courts.
One of the advocates for special courts with limited jurisdiction is the Chairman, Presidential Advisory Committee on Anti-Corruption, Professor Itse Sagay (SAN).
Sagay, who is using his anti-corruption committee as a platform to further push for the special courts, has suggested that the new courts, which would operate under new template, would equip investigators with the step-to-step approach towards efficient and effective prosecution of special cases, especially financial crimes.
Beyond special courts, he hinted that special judges would also be appointed to drive the courts, if and when established.
The committee, just as the president, may have been frustrated by the fact that none of the so-called high profile cases have been successfully completed. Nigerians were yet to see any of the alleged financial rogues convicted and sent to jail.
“There is justifiable frustration in this country about the apparent ineffectiveness of the prosecution of corruption cases. People will cite the fact that cases that started since 2007 have not been concluded,” he had said at a forum in Lagos.
But there are those who think differently. They evisaged the return of jungle justice, a situation where government, with its power of conviction will hijack judicial process by bequeathing absolute powers on investigators and prosecutors.
Other considerations include, financial implications and legislative procedures, which take into consideration, the time required for amendment of the Constitution and enactment of the law, establishing such courts by the National and State Assemblies.
A senior advocate of Nigeria, Mr Joe Agi, is of the opinion that such funds should be channeled towards the training of investigators, instead.
“My view on the issue is that the creation of special courts for financial crimes is not a bad idea, but we should also know that courts are set up by law and not by fiat. It takes the National Assembly to establish new courts. It is not something that is created by the executive arm of government.
“The National Assembly must pass that law and it has to be assented to, by the President before it can become a valid court. So, it is not so easy as that. Secondly, it has its financial implications because if you are going to establish special courts, you are going to appoint the judges and build houses for them. You are also going to employ staff , in addition to providing everything that is required for a normal court to function. As expected, it is not going to be an ad-hoc court, but a permanent court because corruption is not seasonal.
“If you ask me, I will say that they should strengthen the regular courts and then, like I have always said consistently in all my interviews, they should retrain the investigators, the Economic and Financial Crimes Commission (EFCC), The Police and Independent Corrupt Practices and other related offences Commission (ICPC) to know what to do and how to carry out investigations.
Agi believes that if investigators do their job properly, the trial becomes a walk-over, but when they do not carry out proper investigation or do not even understand what they are doing, the trial becomes a proplem. “There are objections here and there and at the end, they will say it is the judiciary that is dissapointing them. It is not so, they dissapointed themselves because they do not know what to do or how to go about it,” he declared.
According to him, the funds that would be earmarked for the establishment of special courts should be spent to retrain investigators and buy equipments for them. He said because investigators have the power of conviction, they bundle people into cell on mere suspicion, force them to make statements and when they come to court, they will explain that they did not make the statement willingly.
“Agitating for special courts is tantamount to saying we want jungle justice, that the investigators should just arrest somebody, throw him into prison. No, that is not our judicial system,” Agi stated.
The lawyer insisted that if not checked, someday, we will be talking about special courts for murder, rape, divorce, maltreatment of children and for maltreatment of wives.
In other jurisdictions, he said, investigators would follow a suspect for three, four years, get all the relevant information without even arresting the suspect. “By the time they conclude investigation, they will come after the person and confront him or her with facts. He will own up instead of coming to argue. There are times people are charged to court when they are not supposed to be charged to court because investigators don’t know who should be charged and who should not be charged.
“Special courts will not give answers to the problem they want to address. It is not about high profile cases, it is about a wealthy person, charged to court and he gets the best of lawyers. And the best of lawyers will put in the best of their abilities to make sure that he is set free. It happens all over the world. Once you do your job well as an investigator and prosecutor, get the best lawyers, the facts will speak for themselves. They will be so bare that the defence counsel will rather call for settlement or compromise. But what lawyers do is to take advantage of the inadequacies of the investigators and the prosecutors. And they will tag it that lawyers are frustrating criminal trials. No, it is the job the lawyers are paid to do. It is their training,” Agi declared.
Also, Chief Adegboyega Awomolo (SAN) queried why financial crimes are so important to warrant such status.
“Why is financial crime so important that you want to create a special court for it? How about murder? How about rape? How about kidnapping? I don’t agree that we should have special courts for corruption and the rest of them.
“But I subscribe to specialized courts. This is not an issue of semantic. If you have special courts, you will devote a particular court for financial crimes, another court for murder and so on.
“If you look at the Federal High Court structure, it started as revenue court, but later, it developed into a Federal court and all federal offences go to that court. Federal High Court has both criminal and civil jurisdiction. All the criminal jurisdictions of the Federal High Court could be brought under a division, so we can make it a criminal jurisdiction of the Federal High Court. In other words, make it a specialized court that will handle corruption cases. By so doing, you save cost of infrastructure and so many other things.
He maintained that the best way to go is to establish specialized courts within the Federal High Court structure, noting that it is cheaper and more flexible. “If by the grace of God we are able to wipe out everything called corruption within the next 10 years, which is my dream, what will the special courts be doing after that time? The judges will not have matters to handle? But if we call them specialized courts, they will handle crimes of every nature such as breach of trust, stealing, rape, treasonable felony and kidnapping.
“People are looking at the special tribunal we had during the military days, where we go and within two weeks to one month, you are already convicted and sentenced. No, our constitution does not allow that. By the time you allow that, you are breeding another group of monsters, who will be corrupted eventually.
“Look at when we had failed bank tribunal, at a point in time, they became so powerful that they no longer cared about the rule of law and at the Court of Appeal, most of their decisions were set aside. We need to learn a lesson from the past. There was a time we had Armed Robbery Tribunal, most of their decisions were also set aside by the court of Appeal, because they turned themselves into almighty. They were doing well initially but along the way, they got corrupted,”Awomolo said.
He stressed that it is better to maintain a structure that is already established; that can be monitored and supervised. He also pointed out that there is a constitutional problem confronting the creation of special courts.
“There would be requirements to amend the Constitution. For instance, when we had the National Industrial Court, even though the laws of the National Assembly said it shall be a court of record, that was not fair. The National Assembly cannot on its own amend the constitution without involving all the States and the situation we are now, to amend the constitution is not an issue of six months. It takes a normal process and it is not going to be easy,” he suggested.
A Lagos-based lawyer, Mr Seni Adio said appropriate statutory framework has to be put in place. He explained that it would require constitutional amendment, if the proposal has to do with establishing new courts, but if it is about creating divisions in the existing high courts, then it would just be akin to what we already have.
His words: “We have to wait and see if they are talking of establishing a new court or just creating of divisions in the existing courts. Then, it would be akin to what we have in certain states such as fast track, commercial, land, criminal, civil, probate divisions and so on. All we need to do is to appoint judges who were perhaps, prosecutors when they were members of the Bar because of their special disposition concerning such matters, to adjudicate on those cases fairly expeditiously.”