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Criminal justice administration in Nigeria: motion without movement

By Joseph Onyekwere
01 December 2020   |   3:04 am
The Court of Appeal is unhappy. Its unhappiness stems from the inability to dispense justice in several cases clogging its dockets over the years.

Ibrahim Mohammad Tanko

The Court of Appeal is unhappy. Its unhappiness stems from the inability to dispense justice in several cases clogging its dockets over the years. As a result, it has just set up seven special panels to decongest the backlog of appeals in the court.

The president of the court, Justice Monica Dongban-Mensem, said the special panels would sit in two sessions daily for three days to dispose of over 100 motions. This has become necessary in view of lingering appeals, which Justice Dongban-Mensem described as the unwillingness of some litigants who go into deep slumber without filing complete processes.

“The Court of Appeal cannot be used as a tool in the hands of these litigants who go into a deep slumber. All notices of appeal filed without being followed with other processes to ensure quick prosecution and disposal of the appeal should be shown the way out. We have sufficient provisions in our rules, which are backed by Constitutional provision for the disposal of matters in court,” she said.

The court of appeal is not alone in this ordeal. All levels of courts ranging from the magistracy to the Supreme Court face similar challenges for both civil and criminal matters. However, the most worrisome is the high courts, where the majority of the trials emanate. Trials linger endlessly at the court of the first instance before judgment is obtained. In some cases, disputed decisions on interlocutory applications migrate up to the apex court, while the substantial matter is pending at the lower courts.

Ironically, the mischief, which the Administration of Criminal Justice Act (ACJA), 2015 intended to cure by ensuring that cases are dispensed faster is now endangered. Earlier this year, the Supreme Court in the case of Udeogu Jones Vs the Federal Republic of Nigeria (FRN) and others, voided section 396(7) of the Act and described it as unconstitutional. Section 396(7) of the ACJA, was enacted to ensure trials are not restarted when judges are elevated. It empowers judges elevated to an appellate court to conclude any matter being heard by them as of the time of the elevation. The implication of this decision by the apex court is the retrial for instance, of previously convicted defendants in the corruption case of former governor of Abia State, Senator Orji Uzor Kalu, his firms and Udeogu Jones was ordered, after over five years of prosecution.

Worried by this development, President Muhammadu Buhari, during the first virtual general conference of the Nigerian Bar Association (NBA) held in August canvassed a time frame within which to dispose of all criminal matters as obtainable in election petition cases.

The president said: “I believe we need to step forward and resolve some of the emerging problems of our system of administration of justice. Reform is urgent because the fabric of our society is stitched together by our system of justice and law enforcement.

“We cannot afford to have the stitches come undone. The first issue I would like to commend to your consideration is the terribly slow pace of trial in our courts. I’m not a lawyer, but I have been a beneficiary of the judicial process.”

The president, who spoke through his vice, Prof. Yemi Osinbajo (SAN) lamented the times he spent at the election tribunals, trying to challenge the electoral victory of his opponents. He expressed happiness that the law has changed to limit the time frame for electoral matters to eight months.

He wondered why the time limit is not applied to other cases as it is done in election petitions. “Why can’t we put in place rules that would say that a criminal matter all the way to the Supreme Court must not exceed 12 months in duration? Why can’t we do the same for civil cases? Even if we say that civil cases must not go beyond between 12 and 15 months, I think that for me would be stepping forward,” he declared in reference to the theme of the conference, which was “step forward.”

According to him, in the context of a competitive global economy, the speed of legal processes must match up with the global pace of transactions. Inability to match up, he noted, has a negative implication to the country’s efforts to promote the ease of doing business and position Nigeria as the favoured investment destination.

In the Federal High Court, Lagos, so many criminal cases have continued to suffer setbacks for various reasons. The most bizarre is charges, where the accused are yet to surface in court to take their plea one year after. A case in point is that of the FRN Vs Kenneth Ndubuisi Amadi and Idid Nigeria Limited. Slammed with 5 counts bordering on N2.9 billion alleged fraud, forgery, suppression of data, and conversion without authority on October 2, 2019, the defendants are yet to come to court to take their plea. And there has not been any consequence for this.

In FRN Vs Patrick Ziadeke Akpobolokemi & others, the trial started before Justice Ibrahim Buba who was sitting in Lagos in March 2016, but the judge was transferred from Lagos to Enugu state in 2018. Justice Ayokunle Faji took over the case, which is still ongoing to date. The Economic and Financial Crimes Commission (EFCC) charged Akpobokemi, a former Nigerian Maritime Administration Safety Agency (NIMASA) boss, and others to court on allegations of N22.7 billion fraud. The defendants were accused of converting over N22.7 billion stolen from NIMASA to their personal use between December 12, 2014, and April 10, 2015.

Trial in FRN Vs Baba Jauro & others started in 2016 and concluded before Justice Mojisola Olatoregun sitting in Lagos. But at the stage to adopt the final written addresses after the prosecution has called 16 witnesses and defence called five, the trial judge proceeded on retirement in November 2019. As a result, a fresh arraignment took place before Justice Chuka Obiozor on November 10, 2020, after four years of fruitless trial before Justice Olatoregun. Jauro was also a former NIMASA boss who succeeded Akpolokemi on an interim basis. He was charged by EFCC too.

The story is the same in the matter between the FRN and Air Vice Marshal Adesola Amosun & others. The trial started in 2016 before Justice Mohammed Idris who was elevated to the court of Appeal in 2018. Consequently, the trial started afresh before Justice Chukwujekwu Aneke to date. Amosun, a former chief of Air Staff was charged to court by EFCC. He and his co-accused are facing trial for alleged diversion of N21.4billion budgeted for security operations.

Also, the matter between FRN and Femi Fani Kayode, Nenadi Usman & others, which started in 2017, is still unresolved. The trial started before Justice Muslim Hassan in 2017 but later reassigned to Justice Rilwan Aikawa, following objections raised by Fani-Kayode to the effect that Justice Hassan had once been a staff of EFCC as the Head of Legal unit, who signed the charge, which the agency preferred against him when he was tried before Justice Rita Ofili-Ajumogobia. The trial is still ongoing.

Another interesting case, which has lingered is that of the former speaker of the Lagos State House of Assembly, Adeyemi Ikuforiji.

Alongside one of his aides, the former speaker’s trial started in 2012 before Justice Ibrahim Buba sitting in Lagos. The judge later discharged the defendants in 2014, following their “no case submission” application after the prosecution had closed its case. Dissatisfied with the development, the EFCC appealed against Justice Buba’s ruling up to the Supreme Court and the apex court reversed the ruling in November 2018 and directed that the case be taken to another judge at the high court. Consequently, the trial started afresh before Justice Mohammed Liman in 2020 and is still on.

Suggesting ways of improving the speed of criminal trials without compromising the principles of fair hearing, Professor of law and former dean, faculty of law, Abia State University (ABSU), Uturu, Sampson Erugo said several challenges must be tackled before the desired improvement can be achieved.

“These challenges abound in all the criminal justice institutions – the Police and other security agencies, the Courts (including lawyers), and the Correctional Services. In the case of Police, an unbiased critical assessment will reveal that the Police are underfunded, lack vital tools, starved of funds for investigation and prosecution of cases, and generally handicapped in attending to prosecute cases. These challenges are in addition to clear issues of corruption, incompetence, and other unethical conducts on the part of some officers and men.

“Without the active, quick, and competent participation or cooperation of the Police and other security agencies involved, criminal cases cannot be prosecuted as desired. Of course, these factors will need to be addressed to improve the speed and conduct of criminal trials,” he said.

Regarding the courts, Prof Erugo stated that besides the unacceptable infrastructural deficit, there are also issues of incompetent, bad, lazy, and unethical Judges and Magistrates. Particularly worrisome and probably the most critical challenge, he noted, has to do with ethics and values.

According to him, there are many dimensions to the issue of ethical competence of both lawyers and Judges involved in criminal trials. “Most lawyers unethically feel the easiest way to defend a client who is seriously implicated as a defendant in a criminal trial is to use every tactic to delay the trial. This is unethical, and the Judge should be able to control his/her court to ensure there is no undue delay.

“But the Judge/Magistrate must be competent, transparent, ethically conscious, and knowledgeable to be in control. The Bar should be ready to check the unethical and unprofessional conduct of members in criminal trials; just like the court should be ready to report such unethical conduct to the Bar. A lawyer’s delay tactics in criminal trials offend several Rules of Professional Conduct, and of course, conflict lawyer’s role in society generally. It could equally hurt the lawyer directly or indirectly as a member of society,” he suggested.

The don said the Correctional Service is also implicated in causing delays in criminal trials, particularly in producing remanded prisoners to court. According to him, the challenge borders on the lack of operational vehicles and funds. Adequate provision, he said, is required to make the Service efficient and responsive.

His words: “Generally, in addition to the solutions proffered under the preceding paragraphs, my humble suggestion is that the listed institutions should work in synergy or collaborate to make Rules that will ensure that criminal trials must be concluded within a specific timeline after the arraignment. Periodic reports of monitoring should be published to show which institutions are frustrating the arraignments.”

The Convener, Access to Justice (A2J), Mr. Joseph Otteh recalled that there have been efforts to improve criminal trials by Federal and State governments through the passage of Administration of Criminal Justice legislation across the country, and the list of states that have so far passed such laws is extensive- nearly all of them.

“Have the legislations produced the targeted results and improved the delivery of criminal justice?” He asked. Under past criminal procedure laws, he noted, due process rights were significantly crushed under the weight of dysfunctional procedures, such as the holding charge system.

“But the current system of remand has considerably ameliorated that situation by giving courts more active roles in supervising administrative or pre-trial detention. Also, the new legislation has broadened the powers of the court to prevent abuses of the trial system and improve the efficiency of the trial process.

“However, many important goals are yet unachieved. Criminal trials still take too long to complete, and this has not helped foster a sense of justice and accountability for many serious offences, particularly corruption-related crimes. Therefore, at least in this respect, reforms made to improve the timeliness of criminal adjudication are still (largely) drawing a blank. In a COVID-19 pandemic era, the situation worsened, given that many criminal trials had to be suspended, making it even harder to achieve the goals of speedy disposition of cases. These are important lessons in the learning curve,” he said.

Otteh stated that some of the states that passed early criminal justice reform legislation are beginning to review those legislations, to improve justice delivery. “Hopefully the new legislation will be shaped by the exigencies of creating better system versatility, enabling them to respond to a range of both foreseeable and not-so-predictable circumstances, and, for this purpose, finding better technology solutions for many of the system’s processes and problems.

“Further reform of criminal trial legislation must do better at eliminating the margin of obnoxious and abusive prosecutions clogging criminal court dockets, and ensuring that only people who have genuine cases to answer are taken through the rigours of a trial. This will significantly reduce the size of criminal dockets and enable criminal courts to focus better on adjudicating bona fide accusations. Reforms must explore the forms by which alternative dispute resolution and restorative justice can be enhanced, in ways that bring better credibility to the justice system, while preserving the system’s core values and philosophy,” he submitted.

For Dr. Jerome Okoro, the elaborate investigation is the foundation of diligent, expedited, and fruitful criminal prosecution. When a suspect is arraigned with poor quality of evidence, he noted, the prosecution would often make desperate moves in the course of the trial to rebuild the case and improve the evidence. According to him, greater costs and attention should be committed to an investigation by adequate provision of essential modern investigation equipment to the law enforcement agencies, and building expertise in areas like a fingerprint, tracking, and forensics through internal training and external procurement.

His words: “It is more ideal that investigation is lengthened for the prosecution to be shortened. Then re-orientation of lawyers against delay tactics is a crusade that the NBA and other lawyers’ bodies should embark on or intensify. Trivial objections and interlocutory applications and appeals constitute a huge clog in the wheel of speedy trial. Such, except if fundamental like those bordering on court’s jurisdiction should be relentlessly discouraged by statutory provisions and judicial pronouncements.”

Describing specialization of courts as the most strategic of interventions, Dr. Okoro argued that if within a division of a court, like Federal High Court, Lagos, there is a specific sub-division saddled exclusively with criminal matters, there would be much difference.