Association, NBA. In this interview, the legal luminary argues that
the Economic and Financial Crimes Commission (EFCC) and the police
have performed abysmally in the prosecution of suspects. He also
speaks on the probe initiated by government into fuel subsidy scam.
Excerpts:
Your client, Mr. Seun Ogunbambo, is standing trial for subsidy fraud.
Don't you think the ground of your application to quash the case,
which you referred to as "Miranda Right" is alien to our legal system?
What is Miranda Right and how does it apply in this case?
Miranda Right is applicable to Nigerians. It's a name that derives
from the American decision when Miranda, a black person, was beaten to
deathby the police and Miranda's family brought an action against the
state ofArizona and the Supreme Court decided that the Miranda Right
is entrenched in the fifth amendment of the American constitution. Now
in Nigeria, the origin of Miranda Right is quite old. It is traceable
to the very widely known practice of the police; to beat people to
extract information, which they call confessional.
When you read the report when I was the President of the Nigerian
Civil Liberties Organisation (CLO), we found out that as high as
eighty percentof the people in police custody are forced to make
confessions and a very sensible rule was put in place, which was
called the 'Judge's Rule' which requires the judge to ensure that a
statement of an accused person has been responsibly taken at the
police station and signed by a senior policeofficer. Now, that Judge's
Rule is enshrined in section 35 of the constitution akin to Miranda
Right.
All it says is that a person who is going to make a statement must
receive legal advice immediately upon his arrest because it is that
legal advice he receives that proves to the court that his rights have
not been violated and, in particular, his statement has been
voluntarily made. I have studied a number of cases, and, in particular
the one I'm doing, whenI did not see the application of the Miranda
Right, I said no, that is serious. It is a very serious issue and I
felt it is important that the right be contested in court.
So Miranda Right in a nutshell is not alien to the Nigerian system and
not likely to cause more trouble for your client?
No, it is not alien to Nigeria. How can it cause more trouble for my
client!? Rather it would establish whether his statement was made
voluntarily because the caution required in the statement was not
there.
But has the Miranda law been argued in any Nigerian court before now?
This is the first time and somebody must start something. The
constitution is in the interest of Nigeria, so I'm not talking to
raise my voice.
What is your take on the operation mode of the EFCC in handling the
subsidy probe?
Not just the subsidy probe; everything. I don't rate EFCC highly in
their prosecutorial methods. I know of some of my very good colleagues
in the EFCC who have performed very well and I can mention Rotimi
Jacobs (SAN). But I speak generally – we are talking whether the EFCC
shouldbe restructured. Not just the EFCC, what of the police? The
police is a disgrace. Because, at least, EFCC have lawyers, but the
police are not lawyers and the police can prosecute and prosecuting a
crime is not an easy thing because you have to understand what you are
doing and you have to be trained.
So, a lot goes on at the level of law, whether EFCC or the police
because they are not trained. If as a persecutor and I'm reading the
file brought by Mr. X and EFCC investigating officer says this is a
file I have investigated and I feel that you, the legal officer, will
make a charge. That is how it starts. It is the EFCC investigative
side that first takes offthe case; gather all the evidence and then
says we think something should be done here. Do they do it? I
challenge the EFCC to confirm or deny that they have a meeting where
they say how many files do we have?
Who is the investigating officer? Did you check to see that all the
elements that constitute murder are present? They don't do that! They
just say, 'we don't like him, put him in the jail. Go and get a
witness. When you get it, collect and put it in proofs and when you
put in the proofs, take him to court'. In one case in Abuja, I told
the judge, 'I can't read this thing. I'm entitled by Section 35 (2) to
provide legal representation to my client but if I cannot read the
document, how can I do so?' And I'm bringing that in this case too
because they have charged the man with offences giving a bundle but
when I read the bundle, they are all jumbled– disjointed– not even
paginated.
So, if you say the man forged something, I cannot tell where I can
find it. Because in the olden days, a statement with which a man is to
be charged with an offence is a sacred document. The judge reads
thoroughly. Here how many judges read the proofs before they give
consent? They just pile the files in the judge's chamber and they say
'what do you want, consent?'
That was why Gani (Fawehinmi) challenged the principle of consent many
years ago. Consent to prosecute is a serious thing. My point is
thatthe entire chain of prosecution that begins from investigation, to
prosecution, to judge's consent is all messed up. So by the time you
are in the hands of an experienced constitutional-criminal lawyer like
me, they can tear it apart.
In that case, what is your position on the handling of the entire fuel
subsidy crisis?
It has not been handled well because Nigerians were very disappointed.
Infact, not disappointed, Nigerians were shocked to their bone marrow
that this type of thing is happening. And to me, in the maritime
industry, I wasabsolutely stunned because I never knew that this type
of thing was happening. So what Nigerians seek is a vigorous campaign
to recover themoney. But I don't even know how much was stolen. Today
they say it is this, tomorrow they say it is that. But what the EFCC
should tell us now is "so much has been recovered."
Don't blame defence lawyers who take advantage of EFCC's weakness.
Like Seun, because Seun is entitled to the presumption of innocence,
so itis you who say he has done something that should make sure that
the case is prosecuted because the matter is all being bungled, nobody
has any clue about what has gone wrong. If I were the EFCC
chairperson, here is what I would have done; I would have written a
memo to Mr. President, I would tell him this is a highly specialised
matter and I don't have the skill to handle it. We need to retain
competent private prosecutors, agree with their terms of engagement
and go to court.
That is what happens in England. In England, you have what is called
the Crown Prosecution Service; it is headed by the Attorney-General.
It isa highly organised and proficient prosecution service. Before
they go to court, the evidence must be good. Crown Prosecution
Service is no child'splay, but the ministry of justice, with due
respect to them because they are my friends, is not just working. So
you have no result from the fuel subsidy scam because the
prosecutorial skill is weak.
Do you think a good use can still be made of the House of
Representatives report on the subsidy probe?
The House of Representatives report on subsidy is what informed the
EFCC probe, so I think they have exhausted their own part – they have
done their own bit and the names they have sent to EFCC are the ones
the EFCC is now required to technically examine; so you don't waste
timeprosecuting a person who turns out to be innocent.
I have also discovered from my years of experience that there is
always public sentiment in everything such that while the fuel scam
was a huge thing, I was shocked to be informed, even though I still
don't believe, I thought that the entire scam was as big as ninety
percent, but that should have been the first thing that the EFCC
should have deciphered so that we know who to concentrate on, so that
there is no need to work ona large number of files if most of the
files will not yield result.
Nigeria has been repeatedly ranked among most corrupt nations in the
world. How do you think the Federal Government can tackle corruption?
First is the will – to have the desire inside. You must desire it from
the inside. I want to be a lawyer, I must desire it. When that desire
is there, then we must translate it by asking the right questions.
Now, a right question will be how do we mount an effective
anti–corruption campaign? What do we have as our anti-corruption
campaign? My good friend, LarryDiamond, one of the world's leading
professors on this subject, when he gave a lecture on this topic; what
rangs in my ear was when he said "perception", you know perception is
almost like fear.
There is a perception that if you move about in the night, you will be
attacked. You may not be. So, you will say are you going out in the
night? Don't go! So there must be a perception that engaging in
corrupt practices will land you in jail. In England, it is known and
the thing is not to be caught, but if you are caught you are gone.
But here in Nigeria,whether you are caught or not, nothing happens to
you. I have seen many people – a man who is under-going trial and who
is flying around in private jets.
But if the perception is right, many people facing trial, just going
around at parties, entering planes and living life as if nothing
happened won't be doing that. That is the challenge, but if that
perception is there, many people who have done the wrong things would
actually by now be in jail and you wouldn't even see them because they
will be so ashamed. Anotherthing is to have the tools. If you don't
have the tools, you can't do it. In Nigeria, there is no quest for
excellence. Nobody cares. I have not seen serious attempt by the law
enforcement agencies to competently prosecuteoffenders.
For instance, if the EFCC is competent in their operation, they will
know the right court to go. The question is, why is the EFCC
prosecuting in thename of the Federal Republic of Nigeria in a Lagos
State court? And you may ask: did Lagos State take those who take
money from the treasury to the Federal High Court in Abuja? Why should
they say that they don't have faith in the Federal High Court which is
the correct court?
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