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‘If all attention is to prosecute and jail people, corruption war will not work’


 Ferdinand Orbih, SAN

Ferdinand Orbih, SAN

Lawyers are very critical in the fight against corruption. Hate them or love them, they are indispensable in the anti-graft war. Members of the Bar as they are referred to have by the nature of the job they do, exposed themselves to a lot of criticisms. The perception is that they are corrupt themselves and self-serving. But an – Abuja based Senior Advocate of Nigeria, Ferdinand Orbih in this interview with JOSEPH ONYEKWERE said the perception is unfortunate. According to him, if all the attention is to prosecute and jail people, the war against corruption will not work.

Do you think that the anti-corruption war would be better waged if a different entity is prosecuting suspects?
I believe that things can be done differently nothing from the way they are being done now. Let me inform you that I am a defence counsel for one of those being prosecuted by the EFCC. Having said that, I believe that all the bodies that are involved in the investigation of crime should be separated from the business of prosecution and that things would be better that way. Once you are involved, sometimes, the level of your involvement can raise a cloud of dusts that can cover your eyes. Even things that should ordinarily appear to you will disappear from view because your vision is now clouded by your interest.

As we say in law, a man should not be a judge over his own case. Those who are saying there should be a separation of the two have a strong case. Secondly, it creates an avenue for filtration and further refinement of whatever an investigator has come up with. Sometimes, because of one reason or the other, you may be bent on sending someone to jail, the evidence that may not even be sufficient to prosecute may be put forward before the court. So, if the court insists that there is nothing to be prosecuted, you may go away with the impression that the courts are your problem. But the court is not your problem at all, the court is only passing its judgment based on what was presented before it. You maybe surprise that sometimes, you may submit your report to those who are supposed to find out whether there is need to proceed with prosecution and they find out that there is a gap somewhere in the investigation. I believe that at the end of the day, it may have a ventilating effect on the war against corruption. Nobody likes corruption, I don’t! But there seems to be this unfortunate view that when you as a lawyer is engaged by somebody accused of corruption, you are also in favour of corruption. Those assumptions are wrong.

How do you dis-abuse the mind of the people on this issue since there are members of the inner bar undergoing corruption trial?
I don’t want to talk on matters that are subjudice.

We are talking about the perception that lawyers are aiding and abetting corruption.
That perception unfortunately, are being propagated by those who are supposed to be fighting corruption. When things come from authorities, giving the level of education of the general public, they tend to believe them. I would say that they will fight the war against corruption better if they stop propagating such falsehood.

The fact that I have accused someone of corruption does not mean that he is guilty. Otherwise, what I need to do is to stamp the allegations against him and take him to prison. Why do you take him to court? You do that for two reasons. One, you want the prosecution to have an opportunity to prove those allegations. Two, you want the accused person to have the opportunity to defend himself by disproving those allegations. It is after both sides have stated their respective cases that the courts would now make a pronouncement.

Above all, you have to remember that those who framed our constitution and also created the legal framework for the existence of the anti-corrupt agencies are not mad. As it is usually said, it is better for 100 guilty persons to escape justice than for one innocent man to suffer. Anything otherwise will lead to anarchy and chaos in the society. Any man could wake up one morning, if he does not like your face, he will make any of the agencies to start an allegation of corruption against you.

They will handcuff and go and imprison you. I don’t think that is the kind of society we want to live in in 2016. The world has moved far beyond that. So, there is need for proper re-orientation. I don’t want to believe that the people who are feeding the public with this wrong perceptions do not know the proper thing, they know. If all the attention is to prosecute and jail people, the war against corruption will not work. We have to put a machinery in place to prevent people from being corrupt. There has to be institutional check in place and societal value change. We glorify anybody that has a little money in his pocket. Nobody bothers to find out where you got your money from. Even within the system, there has to be check and balances to prevent corruption. A have a friend who used to say ‘thou should not tempt anybody’. According to him, it would never be said that his driver stole his money because he will not put it where the driver will have access to it and steal it. So, the war against corruption is not all about convicting people and sending them to Prison. It is a vital aspect of it, but there are more to it. Even our Prisons have limited capacity. So we must prevent corruption. All these are part of the mandate of the EFCC.

They have a lot to do; organising seminars for institutions, for civil servants. So it is not just EFCC will catch you, it is more than that. After all, they say prevention is better than cure, even in medicine. It is better to prevent an ailment than to look for something to cure it. Why should it be possible for one person to steal N34 Billion or for one man to steal N7 Billion in another institution of government? Why should somebody have access to that type of money, not to talk of stealing it? There is something wrong in the system. There must be things put in place to stop those from happening. And I will recommend this to the presidential committee on anti-corruption.

There seems to be a whole lot of propaganda and publicity given to this aspect. Another aspect is the attitude of chasing everybody that stole one Naira. If we are going to do that, it is like fighting too many battles. A general will tell you to be focus and choose the battles you can fight and win and inflict maximum impact on your enemy. You can’t fight everybody. In picking your battles, pick the prominent ones and make example of them, so that everybody will know that impunity does not pay and there are consequences when you misbehave. Those are some of my suggestions for those who are saddled with the responsibility of fighting corruption. Nobody should denigrate the lawyers defending accused persons because it is corruption to jail an innocent man. And those who help to ensure that innocent persons are not sent to jail under the guise of fighting corruption are also fighting corruption.

Of recent, there have been conflicting decisions from courts of concurrent jurisdiction on the People’s Democratic Party (PDP) issue. How can we arrest them?
Again I confess to you that I’m handling some of these cases. I’m in the legal team that is defending the senator Ahmed Makarfi led national caretaker committee.

So you will be biased in your opinion?
It is not that I will be bias in my comment, but it is good I tell you. If I don’t tell you, people who know might dismiss my views on the face value. Everybody who loves the judiciary of this country must be disturbed by what is going on generally. A situation where you have conflicting decisions of the courts in respect of the same subject matter, is undesirable. If care is not taken, it would undermine the machinery of administration of justice in this country. It will lead to loss of faith by the common man on the judiciary. Whatever is the reason, it has to be put to check. That is the much I can say because I’m involved and the matters are still in court.

Can’t there be a mechanism to check the trend?
It requires the cooperation of everybody involved in the administration of justice – the lawyers and the judges. As a lawyer, it would not reflect well on me to know that a case is pending in one court but because of one reason or the other, I feel that the decision will not favour me, then go and file an identical action in a sister court. That is where the lawyers role comes in. Even if a lawyer does that, there is what is called abuse of court process, which is a strong principle of our jurisprudence.

It says that the law will not permit you to engage in multiplicity of actions to annoy your adversary. All the subsequent ones to the original action will be regarded as a gross abuse of the judicial process and the law has the power to strike them out. So the courts too have a role to play. If a counsel bring to your notice that there is a similar matter in another court, then the judge has a role to play at that time. The system itself, also has its own role to play, in the sense that they should not even wait for a lawyer to inform the judge that there is a similar action in another court. There should be a way to disseminate information regarding rulings and judgments churned out in different courts in far flung places in this country. It is possible that if a ruling is given by a Lagos division of the federal high court today, before the end of the day, at the worst, that ruling should be circulated to all the judges of the federal high court, who will have a duty to see what their brother judge has said about certain cases. Everybody has a role to play to eliminate this. If you are a judge and it is brought to your notice that a matter is pending in another court, you have a role to play by striking the matter out immediately.

Would you support the idea of creating special courts for the trial of suspects accused of corruption?
Instead of creating special courts, I will rather that we make the present system more efficacious. If we create special courts to try certain categories of Nigerians accused of peculiar offences, rightly or wrongly, you are setting up courts that will do your bidding.

What exactly do you think can be done to make the existing courts more efficacious?
A lot can be done. We talk about delays in the justice delivery system. We have to praise all the judge’s because they still do hand recording of proceedings. It is tedious and time wasting. You will save so much time, if we get verbatim recording devices for our courts. It is done elsewhere, so why is it not possible here? You will be surprise that proceedings that should ordinarily take five hours will end in 30 minutes and by the following days, the records are made available to all the parties involved. So there will not the argument about ‘I made this submission but the court did not record me’.

There will be transcribers just as we have in parliament. That is why it is possible for an arbitrator in UK to schedule an arbitration for five days, day to day and all the evidences are taken within that period of time. That can be done. Judge’s also will need research assistants to provide the materials that they need. The administration of justice act luckily for us has taken care of some of those things that are causing delays. But like everything that is new, it takes time for us to refine the process of implementation.

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