By CrossRiverWatch Admin
BEING A PAPER PRESENTED AT THE NIGERIAN BAR ASSOCIATION ANNUAL CONFERENCE, HOLDING IN PORT HARCOURT, RIVERS STATE ON WEDNESDAY THE 24TH AUGUST, 2016
I thank you for this great privilege to share my insight with you my learned friends and colleagues. I am delighted to have the opportunity to speak on this important topic captioned “Effective Prosecution of Terrorism, Economic and other Organized Crimes.
Reflecting on this year’s annual theme, I commend the organizers of this conference on the focus of our gathering here, which conform to the emerging trends in the country today. I must state assuredly that the government remains fully committed to tackling Terrorism and Financial Crimes as well as other organized crimes such as drug trafficking, cybercrimes, oil bunkering, inflated contracts just to mention a few that have being prevalent in our democratic system.
WHAT ARE ECONOMIC CRIMES?
Economic crimes refer to illegal acts committed by an individual or a group of individuals or corporate entities to obtain a financial or professional advantage. In such crimes, the offender’s principal motive is economic gain. Economic crimes are sometimes refer to as white collar crimes. They are one of the most insidious and predatory of offences.
Section 46 of the Economic and Financial Crimes Commission (Establishment, etc.) Act defines economic and financial crimes thus:
“Economic and Financial Crimes” means the non-violent criminal and illicit activity committed with the objectives of earning wealth illegally either individually or in a group or organized manner thereby violating existing legislation governing the economic activities of government and its administration and includes any form of fraud, narcotic drug trafficking, money laundering, embezzlement, bribery, looting and any form of corrupt malpractices, illegal arms deal, smuggling, human trafficking and child labour, illegal oil bunkering and illegal mining, tax evasion, foreign exchange malpractices including counterfeiting of currency, theft of intellectual property and piracy, open market abuse, dumping of toxic wastes and prohibited goods, etc. ‘’
Economic crimes are undoubtedly a serious threat to national development and advancement. It threatens even national security. Scholars and public commentators alike have blamed the underdevelopment of the country and the prevalent poverty on the prevalence of economic crimes especially in the public sector.
There are different types and forms of economic crimes which include advance fee fraud, fraud, embezzlement of government funds, credit card fraud, and money laundering in general.
WHAT IS TERRORISM?
Terrorism is, in its broadest sense, the use or threatened use of violence (terror) in order to achieve a political, religious, or ideological aim. It is classified as fourth generation warfare and as a violent crime. According to the Federal Bureau of Investigation of the United States of America, Terrorism is the unlawful use of force and violence to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.
Also Section 46 of the Economic and Financial Crimes Commission (Establishment etc.) Act (supra) defines terrorism thus:
‘’ (a) Any act which is a violation of the Criminal Code or the Penal Code and which may endanger the life, physical integrity or freedom of, or cause serious injury or death to, any person, any number or group of persons or causes or may cause damage to public property, natural resources, environmental or cultural heritage and is calculated or intended to
(i) Intimidate, put in fear, force, coerce, or induce any government, body, institution, the general public or any segment thereof, to do or abstain from doing any act or to adopt or abandon a particular standpoint, or to act according to certain principles, or
(ii) Disrupt any public service, the delivery of any essential service to the public or to create a public emergency, or
(iii) Create general insurrection in a state;
(b) Any promotion, sponsorship of, contribution to, command, aid incitement, encouragement, attempt threat, conspiracy, organization or procurement of any person, with the intent to commit any act referred to in paragraph (a) (i), (ii) and (iii)’’
Terrorism is one of the organized crimes that has plagued Nigeria in recent times. Terrorism perpetrated by Boko Haram has killed more than 15, 000 Nigerians and led to the displacement of more than 2.6 Million people in the North Eastern Region of the country. Nigeria is now ranked third of the 162 countries of the world that have been worst hit by terrorist attacks, according to the Global Terrorism Index. Going by the latest ranking Nigeria is only better than Iraq and Afghanistan.
Terrorism of the Niger Delta Avengers and other groups in the Niger Delta have led to a near shutting down of crude oil export and production with devastating effect on the national economy.
WHAT IS ORGANISED CRIME?
There is no generally accepted definition of Organized Crime. However, going by the definition given by the United Nations Office on Drugs and Crimes (UNODC);
‘‘Organized crime threatens peace and human security, violates human rights and undermines economic, social, cultural, political and civil development of societies around the world.’’
A number of attributes have been identified by the law enforcement agencies and researchers as indicative of the phenomenon. Klaus Von Lampe in his research on organized crime, said that Organized Crime has no political goals; it is hierarchical; has limited or exclusive membership; constitutes a unique subculture; perpetrates itself; exhibits a willingness to use illegal violence; it is monopolistic and; is governed by explicit rules and regulations.
According to FBI, the face of organized crime has changed and the threat is broader and more complex than ever, with an estimated $1 trillion illegal profit per year. FBI listed Nigeria as one of the countries emitting the new fashion of organized crime across the world.
Nigerian organized crime is known for human trafficking, arms trafficking, prostitution, drug trafficking, contract killing, illegal diamond smuggling, robbery, money laundering, kidnapping and extortion.
Another dimension to the activities of organized crime groups is that, they act as beneficiaries of cash rewards for executing hits. Meaning that there exist some individuals or groups paying for their services. A state rife with social inequality, social injustice and economic impoverishment, coupled with the absence of the rule of law, is a fertile ground for organized crime.
Murder by organized crime is prevalent in societies where corruption thrives, where checkmating the interest of corrupt individuals and groups is met by stiff opposition which results in calculated assassinations of incorruptible officials. It would be in the interest of the state to connect the dots.
Nigeria is a signatory to relevant international treaties on combating organized crime and human trafficking but there is still so much left to be done in terms of implementation and domesticating such treaties. Organized crime poses a serious threat to our existence as one nation. There are no straight forward solutions to the challenges of organized crime and murders, however, cardinal reforms must be carried out in our judiciary while the rule of law becomes the order of the day as a necessary first step towards combatting organized crime.
The pertinent question is how effective has the prosecution of those who carry out terrorism, economic and other organized crimes in the country?
At any given time, fighting crime has never been an easy feat to accomplish and the unfortunate reality is that crime will exist for as long as society exists. But there are several institutionalized methodologies and procedures set in place to curb these incidences of crimes, reducing it to the barest minimum and total elimination where possible. One potent tool necessary for the reduction and elimination of crime is the procedure and efficacy of prosecution.
Evidently, there are different approaches to tackling the challenges of economic and other organized crimes but the focus of this paper will be hinged on the prosecutorial approach in combating Terrorism, Economic and other organized crimes.
WHAT IS PROSECUTION?
Prosecution is simply the process of trying to prove in a court of competent jurisdiction that somebody is guilty of a crime for which he/she has been duly charged. The success or otherwise of prosecution will depend on several factors amongst which are:
- Cooperation from persons/institutions who should furnish relevant information;
- The quality of evidence gathered at the investigation stage;
- The transparency of investigation of the case itself;
- The prosecutorial competencies of the prosecuting counsel;
- The transparency and fairness of the presiding judge in the trail; and,
- Lacunas or gaps in the law guiding prosecution.
A prosecutor should not invidiously discriminate against or favour any person on the basis of race, religion, gender or ethnicity in exercising discretion to investigate or to prosecute; and proper considerations should be taken in exercising such discretion.
WHAT AMOUNTS TO EFFECTIVE PROSECUTION?
Effective prosecution may be summarized as a timely response to major changes within the Criminal Justice System which requires the collaboration of investigating and prosecuting authorities. The success or otherwise of prosecution is dependent on several factors such as:
The quality and content of evidence obtained at the investigation stage.
Maximum synergy and cooperation between prosecuting and investigating institutions
The authenticity and transparency of the investigation process.
The intellectual and practical capacity of prosecutors and investigators.
The independence and fairness of the presiding judge in the trial.
Setbacks and inadequacies in legislation guiding prosecution processes.
FACTORS MILITATING AGAINST EFFECTIVE PROSECUTION OF TERRORISM, ECONOMIC AND ORGANISED CRIMES IN NIGERIA
Before we delved into the ways and manner to bring about effective prosecution of terrorism, economic and organized crimes in Nigeria, it is pertinent that I dwell on the factors militating against effective prosecution of terrorism, economic and organized crimes in the country.
I shall proceed to take these one after the other.
- COOPERATION FROM THOSE WHO SHOULD FURNISH RELEVANT INFORMATION
Terrorism, economic and other organized crimes are serious crimes and most often organized by well-heeled, sophisticated criminal gangs and syndicates who try as much as possible to conceal them from prying eyes of investigators. Most often the perpetrators of these crimes are hundreds of miles away from law enforcement agents who always lack the technical know-how and skills to investigate in order to fish out the planners and executors.
Under these circumstances, either the information/evidence is destroyed or watered down in such a manner that it will not be useful to law enforcement Agencies. It is often the case that whole files containing incriminating materials disappear or relevant parts of them. The first obstacle therefore to successfully prosecute is to be able to obtain the cooperation from those persons who should provide the relevant evidence that will enable successful prosecution.
- TRANSPARENCY OF INVESTIGATION
Even where the source(s) are available and ready to cooperate, is the investigator competent enough to handle the case assigned to him? Terrorism, economic and organized crimes cases are usually very complex and complicated. Some involve documents or subjects that are very technical, requiring a well-schooled investigator to unravel.
Is he or she honest and patriotic enough not to be compromised? It is well settled that an otherwise competent investigator can sell his competence in order to weaken the evidence that will be eventually presented in court. If that happens, the case has failed even before it started. It is not uncommon to find prosecutors filing charges that have no bearing whatsoever with the proofs of evidence. A judge in that case will not have any difficulty in striking out the charges against the accused.
- COMPETENCY OF COUNSEL
It is well established that an otherwise good case can be destroyed by the incompetence of a prosecuting counsel, who either is professionally incompetent or again, has compromised himself in order to defeat the trial. Criminal trials entail diligence, quick wittedness and industry on the part of prosecuting counsel.
The defense resort to all sorts of legal trickery and stratagems to frustrate the trail or to weaken the evidence presented to make it look manifestly unsupportable. A prosecuting counsel must be well conversant and indeed know the law and the criminal procedure to be able to effectively counter those antics of defense counsel. He must not fall into their snare. He must call only relevant witnesses and lead evidence only on facts that are relevant to the prosecution. A prosecuting counsel who is devoid of these qualities has himself become an obstacle to the successful prosecution of his case.
There is need therefore to properly remunerate and provide adequate resources for the continuing legal education of prosecuting counsel. They should also be availed the tools to do their work effectively. Their libraries must be stocked at all times with relevant research books, law reports and journals.
This becomes even more important when you realize that prosecuting counsel in many of these cases is confronting a defense team comprising several Senior Advocates who are well paid by the accused.
Prosecuting Counsel must appreciate the fact that their responsibility is to do justice and not to free criminals even when it is apparent that they are guilty. Crime dislocates the social fabric of our society and they share in the responsibility of the restoration of that equilibrium. It does not matter if such a culprit is a client. As ministers of Justice both the prosecuting and defense Counsel all have a responsibility to fight crime, particularly terrorism, economic and organized crimes which affect our lives and those of generations unborn.
Surely legal practitioners also contribute to the ineffectiveness of the prosecution of these cases, especially the defense Lawyers, through the filing of fictitious and frivolous applications in the form of motion ex parte, adjournments, appeals, etc., as a delay tactics which is done especially when a counsel knows that the evidence against his client is overwhelming and that to defend such may be difficult, hence adopting some delay tactics, to frustrate the administration of justice. We all know that Justice delayed is Justice denied.
The frustration of trials through incessant interlocutory appeals by legal practitioners on every issue which could conveniently be taken holistically on appeal remains a major obstacle to criminal prosecution even with the coming into force of the Administration of Criminal Justice Act, 2015 which prohibits staying of proceedings.
- THE TRIAL JUDGE
The judge who holds the balance between the prosecution, defense and the accused really holds the ace to the success or otherwise of the prosecution. It is to him that the evidence is adduced. It is him who decides which of the arguments is more persuasive and whether the prosecution has discharged the burden of proof as prescribed by law.
The greatest tragedy to any prosecution is when a judge has even before taking and analyzing evidence has made up his mind that the accused is not guilty as charged. This sometimes occurs when the judge has compromised the case. In some cases, the judge may be ignorant of the law or he may deliberately misdirect himself on the facts and the law.
Corruption and financial crimes most often involve huge sums of money. Those who are beneficiaries of the crimes are willing to share a little percentage of the proceeds with the judges. Once the judge takes the bait, the case fails ab initio. No evidence presented will sway him to the side of the prosecution. The evidential burden of proof beyond reasonable doubt is stretched to read “proof beyond every shadow of doubt” contrary to the long line of decided cases by the apex court, the Supreme Court.
- LACUNAS IN THE LAW
It is important to state here that the fundamental rights of citizens guaranteed by the Constitution are meant to protect those citizens who themselves are law abiding and have not infracted the provisions of the Constitution itself. It is indeed inequitable to violate the fundamental law and turn around to seek its protection of your own right without simultaneously atoning for your wrongs. On the other hand, there are some provisions of the Constitution which seem to have over protected the accused against the state.
Section 35(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) gives a right to any person arrested or detained to remain silent or avoid answering any question until after consultation with his/her lawyers.
Section 36 (2) of the Constitution of the Federal Republic of Nigeria (supra) also provides that any person tried for a criminal offence shall not be compelled to give evidence at the trial. When these rights are claimed, they, many a time, lead to over protection of the accused person while restricting the means of protecting the rest of the society in the sense of making it difficult to prove a case against them.
Again, it is almost impracticable to conclude investigations and charge arrested persons to court for terrorism, economic and financial crimes committed, often times in an organized manner, straddling several countries and financial institutions. No investigation can be so thorough or any incriminating evidence obtained to sustain a charge within such a short time.
- THE DIFFICULTY OF PROSECUTING THE NIGERIAN BIGMAN
The super and political elites in this country have the mind-set that they are above the law and should never be brought to account for their wrongs. They are stupendously rich and influential and whenever they are call to account they devised all manners of tricks to frustrate the State using mindboggling corrupt officials in the country.
These super and political elites include Businessmen, governors, ministers, occupants of all political positions, civil servants etc. Where an ex-governor or minister and such like are being prosecuted, because they have amassed a lot of wealth, they can easily afford to engage the services of the best of lawyers and Senior Advocates. Some of these Big Men have been seen to engage about 10 Senior Advocates to face only one Judge in just a case.
Apart from money, the caliber of persons involved in this high profile cases are persons that can influence anybody, hence, the hands of the prosecutorial officers are mostly tied, as these persons can influence anyone.
The Nigerian Big man has the mindset that the criminal justice system in the country is meant only for the poor, dispossessed and the underprivileged. When a Nigerian big man loots the treasury he does not expect to be answerable to the law; when he is called to account, he whips up sentiments and emotions such as: I am being witch hunted because I am a Christian or Muslim, Hausa or Igbo or Ejagham! He will suggest that the government is selective in prosecution of cases but we do not hear all these emotive outbursts when a poor man is put to trial! Can we have two standards of criminal justice system in the same country?
The saddest thing is that even the poor masses that have been looted blind by such Big Men join in propagating such sentiments of leave our brother alone, is he the only one that stole? Leave our sister alone, is she the only thief in Nigeria?
Despite the elaborate and comprehensive procedure laid down in Section 396 subsections 1, 2, 3, 4, 5 & 6 of the Administration of Criminal Justice Act, 2015 to quicken the hearing and determination of criminal cases , we still seen a lot of underhand tactics being deployed and employed by defense Counsel to frustrate it application.
Section 396 subsections 1, 2, 3, 4, 5 & 6 of the Administration of Criminal Justice Act provide thus:
- (1) The defendant to be tried on an information or charge shall be arraigned in accordance with the provisions of this Act relating to the taking of pleas and the procedure on it.
(2) After the plea has been taken, the defendant may raise any objection to the validity of the charge or the information at any time before judgment provided that such objection shall only be considered along with the substantive issues and a ruling thereon made at the time of delivery of judgment.
(3) Upon arraignment, the trial of the defendant shall proceed from day-to-day until the conclusion of the trial.
(4) Where day-to-day trial is impracticable after arraignment, no party shall be entitled to more than five adjournments from arraignment to final judgment provided that the interval between each adjournment shall not exceed 14 working days.
(5) Where it is impracticable to conclude a criminal proceeding after the parties have exhausted their five adjournments each, the interval between one adjournment to Time for raising certain objections, day-to-day trial and adjournments another shall not exceed seven days inclusive of weekends
(6) In all circumstances, the court may award reasonable costs in order to discourage frivolous adjournments.
(7) Notwithstanding the provision of any other law to the contrary, a Judge of the High Court who has been elevated to the Court of Appeal shall have dispensation to continue to sit as a High Court Judge only for the purpose of concluding any part-heard criminal matter pending before him at the time of his elevation and shall conclude the same within a reasonable time:
Provided that this subsection shall not prevent him from assuming duty as a Justice of the Court of Appeal.
- JURISDICTIONAL PROBLEMS: Jurisdictional problems are a major setback in certain organized crimes such as internet fraud or cybercrimes. Legal experts often disagree on matters relating to the territorial jurisdiction for the trial of such offences, a situation that makes the investigation and prosecution of such organized crimes really cumbersome.
- HIGH COST OF INVESTIGATION AND PROSECUTION:
The high cost of investigation and prosecution is often a factor that stalls the progress of trial. Most of these very high profile cases that may require quite a number of evidence and witnesses are indeed very costly and lack of proper funding of such matters prevents the smooth running of trials.
HOW CAN YOU HAVE EFFECTIVE PROSECUTION OF TERRORISM, ECONOMIC, AND ORGANISED CRIMES IN NIGERIA
In other to achieve an effective prosecution of economic, financial and organized crimes, lawyers need to be re-orientated. The current practice, which is to make as much money as possible not minding how the money comes must be checked.
A Lawyer should keep a good legacy, because the evil that men do, lives after them. A Lawyer’s wealth isn’t measured by the amount of money amassed during his life time; it is measured by the level of his integrity and his upholding of the course of Justice.
There should be improved synergy between law enforcement agencies and security intelligence officials. In some cases, vital evidence is withheld for a plethora of reasons which has the capacity to mar a prosecutor’s case.
Interstate and inter border cooperation amongst law enforcement agencies should be encouraged and facilitated.
There should be enhanced capacity building for prosecutors, just as we have in other jurisdictions, there should be specifically trained prosecutors in the field of terrorism in order to effectively prosecute terrorism cases.
Development of national counter terrorism strategies for prosecutors that seek to prevent acts of terrorism and prosecute those responsible for terrorist acts.
Creation of Special Courts, specifically for financial crimes and organized crimes. The courts are congested with cases; it leads to the delay in prosecution of economic, financial and organized crimes. Hence, the fast tracking of cases and lessening of the work load of Judges is encouraged.
REFORMS PUT IN PLACE TO ENSURE EFFECTIVE PROSECUTION OF TERRORISM, ECONOMIC AND ORGANISED CRIMES IN NIGERIA
The Honourable Attorney General of the Federation and Minister of Justice, Abubakar Malami (SAN) in his reform agenda and in conjunction with the Presidential Advisory Committee against Corruption will soon lay before the National Assembly an executive bill for the establishment of a Special Criminal Court to hear and determine expeditiously economic, financial, terrorism and other organized crimes in the country.
In the interim, the Honourable Attorney General of the Federation in exercise of his prosecutorial powers vested on him by Section 174 (1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) has constituted a National Prosecution Coordinating Committee to prosecute financial, economic, corruption, terrorism and other organized criminal case in the country with dispatch devoid of bureaucratic bottlenecks. The objective of NPCC is to-
Co-ordinate efficient, effective and result oriented investigation and prosecution of High Profile Criminal Cases in Nigeria;
Ensure early contact and synergy between investigators and the prosecutors of High Profile Criminal Cases in Nigeria;
Manage information to the public on High Profile Criminal Cases;
Ensure strict compliance with the Administration of Criminal Justice Act, 2015 (‘‘the Act).
The National Prosecution Co-ordination Committee is a body comprising of nineteen (19) members; twelve (12) ex officio members and seven (7) external lawyers experienced in administration of criminal justice in Nigeria and other commonwealth jurisdictions. All members of the Committee shall be paid sitting allowances as may be determined by the Honourable Attorney-General of the Federation and Minister of Justice.
The terms of reference of the NPCC include to-
Advice the Honourable Attorney-General of the Federation and Minister of Justice (HAGF) on the exercise of his prosecutorial powers in section 150 and 174 of the 1999 Constitution;
Prepare the policy strategy document for the co-ordination of investigation and prosecution of High Profile Criminal Cases in Nigeria;
Collect the list of High Profile Criminal Cases in Nigeria and assign the cases to prosecution teams;
Scrutinize the proof of evidence and charges in High Profile Criminal Cases in Nigeria before arraignment;
Coordinate investigation activities of High Profile Criminal Cases in Nigeria
Receive and analyze reports from the investigation and prosecution teams engaged to handle High Profile Cases in Nigeria;
Prepare and submit to the HAGF monthly report of High Profile Criminal Cases supervised by the committee;
Serve as liaison between the HAGF and the investigation and prosecution teams engaged to handle High Profile Criminal Cases in Nigeria;
Sensitize the public on the conduct of High Profile Criminal Cases in Nigeria;
Make rules for its proceedings;
Carry out any other directives issued by the HAGF;
To undertake any other matter incidental to the achievement of the objective of the Committee as approved by the HAGF.
Since the National Prosecution Coordinating Committee is an ad hoc body, the Honourable Attorney General of the Federation as part of his strategic plan is working on an executive bill to table before the National Assembly for the establishment of a National Prosecution Authority. The objectives of the proposed National Prosecution Authority will include thus:
- Advises the Police and other investigative agencies of the Federal Government of Nigeria on criminal cases for possible prosecution;
- Review cases submitted by the Police and other investigative agencies of the Federal Government of Nigeria for prosecution;
- Where the decision to prosecute, determines the change in the more serious and complex cases;
- Prepare cases for court;
- Present those cases at Court.
Also a strategic plan from 2014 to 2019 has been developed concerning prosecution of criminal cases. It is the first of its kind in the country. The vision of the strategic plan on prosecution is that on behalf of the society and in the public interest, ensures that there is justice in an efficient manner through effective performance of prosecution duties, taking into account the values of impartiality, professionalism and integrity.
Thirdly, there is the need for capacity building for an effective prosecution of these crimes. There should be proper training of Justices and Lawyers specifically for handling economic, financial and organized crimes.
In this wise, the Conference of the Body of Attorneys Generals in the Country recently in its meeting in Abuja adopted the National Policy on Prosecution; the Code of Conduct for Prosecutors and a Guidelines for Prosecutors developed by the Honourable Attorney General of the Federation which are designed to improve prosecution of criminal cases in the country.
The Money Laundering Bill, 2016 and Proceeds of Crimes Bill, 2016 are also on the offing and will soon be laid before the National Assembly for passage into law.
Also the Administration of Criminal Justice Monitoring Committee which is established by Section 470 of the Administration of Criminal Justice Act, 2015 was inaugurated on the 29th February 2016. Essentially the work of the Committee is to ensure criminal cases are speedily heard and determine and also ensure there are no congestion of criminal cases in the Court system.
Undoubtedly, no effort propelled to stem the tide of terrorism, economic and organized crimes with its monumental and disastrous consequences in the country will be too great.
The country will, to her peril, neglect to face the challenges of modern crime and criminality.
A political system that allows criminals free reign will not attract the much needed foreign investment necessary for all-round development.
To ensure peace, tranquility and a globally secured life, the modern world must take the issue of organized crimes, and the national will in combating them, very seriously.
Finally, current financial crisis has brought the issue of economic and other organized crimes to the forefront and there are undoubtedly real challenges in confronting and tackling the threats presented by these crimes.
But there are a lot of legal review and reforms being undertaken in the justice sector to handle these shortcomings associated in dealing effectively in the prosecution of crimes.
The key to an effective response is mutual cooperation between investigators, prosecutors, lawyers, judges, and all other institutions responsible for maintaining law and order in the society.
Gladly this is one of the primary objectives of the Administration of the Criminal Justice Act, 2015.
Okoi Ofem Obono-Obla is the special assistant on prosecution to President Muhammadu Buhari in the office of the honourable attorney general and minister of justice
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