Mazi Afam Osigwe is the General Secretary of the Nigerian Bar Association (NBA). In this interview with EMMANUEL ONANI and AMADI NNAMDI, the former Chairman of NBA (Unity Bar), speaks on the anti-corruption stand of the EFCC and other issues of national importance. Excerpts:
The EFCC Chairman, Mr. Ibrahim Magu, recently said some prominent lawyers are facilitating crime in the country. He also said some of them are vandals in the temple of justice. What is your reaction to that allegation?
I think the press decided to give prominence to the statement of the EFCC chairman without also giving space to the response of the President of
the NBA, but I find the speech of the chairman of the EFCC very worrisome. If you take his entire speech, it is suggestive of the fact that persons who are accused of corruption are not entitled to legal representation and that is very unfortunate.
He gave the impression that the EFCC will prefer that once somebody is alleged to have been involved in corruption, that person should be allowed to be railroaded into the court and convicted. He sounded as if only the conviction will make the EFCC happy. For example when he said that lawyers take from purses of corruption, that they offer their services to corrupt persons.
It is unfortunate when the constitution has given the right of counsel to persons who are charged with criminal offence and now in certain cases, if you take cognisance of the fact that the law requires that where you have been charged to court and you don’t have a lawyer, then the trial must be stopped until you get a lawyer, then when you listen to such a statement, it’s just unfortunate.
He also gave the impression that those who are corrupt are able to get better lawyers than the EFCC, that also doesn’t look good for lawyers who give their life and time in the service of the EFCC. It appears to underrate them and make it look as if, if we lose a case, it is because this person could afford better lawyers.
I think persons in his position should be circumspect in what they say and how they say it and what perception they give to the public because more is expected of them. He should not give the impression that they must secure conviction at all cost and that nothing but a conviction will make them happy.
That is the unfortunate impression he has given, and I think he should be advised not to make such statements because they do not ennoble his office; they make his office look like a lynch mob that will only settle for blood and nothing more.
Using the N2.1 billion arms scandal as a case study, many Nigerians are of the opinion that suspects should be charged to court without necessarily throwing evidence to the public. What is your opinion on this?
In a separate chat, I had made reference to the fact that the President said the judiciary is his headache and when you take it with your question, it makes a whole lot of sense. When a president says the judiciary is his headache without giving us statistics of how many cases have been properly and conclusively investigated by the EFCC, the police, ICPC, and the DSS. How many cases have been charged to court and also to show when and where these cases were charged to court, what are the reasons they have not been concluded, for us to know whether it is his own executive branch, inclusive of these nvestigative and prosecuting agencies that are responsible and then heap the blame at the door step of the judiciary.
It becomes rather unfortunate. It gives the impression that he wants to dictate to the court. He will be happier with a situation where the courts do not grant people bail, convict people no matter the insufficiency or whatever type of evidence is presented.
It would appear to explain the president’s statement in the media chat where he said they would not allow persons who have been granted bail by the court to go because they will jump bail. It shows a mindset of “keep them in detention, convict them, don’t allow them to go. That is a military mindset if you ask me, and it doesn’t portend well for our Judiciary and society.
Do you think Mr. President’s comment could be interpreted to mean subtle intimidation of the Judiciary?
Absolutely, he wants to dictate to them, he wants to put them under his feet as if he is a headmaster. Tell them what to do and nothing but what he wants will make them happy. That is my take on this and it is not good, because the judiciary should be able to operate in atmosphere where there is no interference by the executive.
Indeed it is one of the cardinal principles of a democratic society. You must have a free and independent Judiciary, the appointment of those judges must be insulated from political interference and the execution of these judges’ constitutional duties must not in any way be susceptible to executive interference.
Or the executive should not in anyway dictate to them what to do. The executive should not try to interfere in their decision-making process. That is why also the salary of judicial officers is also protected such that the executive cannot refuse to pay them salary or try to intimidate them into giving judgement in a certain way. So I think the president’s statement can also be interpreted as a subtle attempt to intimidate the judiciary and make them look bad so that they will try to look good by doing his bidding.
This seeming harsh comment on the judiciary was not from the president alone. What is your reaction to the statement credited to the Chairman of the APC on the same subjectmatter?
I wish I didn’t have to speak about this because you would expect that political leaders should live above board, to adopt a high degree of decorum in their speech, especially in their reac- tion to u n f avourable judicial decisions. I recall that when judgements by the court were in their favour they were jubilating and very excited, praising the judiciary, I now find no hesitation in saying that they now condemn the judiciary because they lost, so it is a case of sour grapes. It is hypocrisy.
Praise them when they rule in your favour and then demonise them when the judgement goes against you. In any case, what the Supreme Court merely did was to restate the position of the law with respect to how you prove widespread rigging.
The Supreme Court has in far back as Buhari vs Yar’adua’s case stated that you cannot use evidence of what transpired in one corner of Nigeria to show that that was what happened all over Nigeria, if you recall in that case, Buhari’s witnesses sort to use what they alleged took place in Imo to overturn an election that happened all over Nigeria.
Now, talking about the card reader, it was a provision of a regulation made pursuant to the Electoral Act. The Electoral Act has in itself made specific provision about how you do accreditation, you identify the voter, then put name in the voter’s register. So the voter’s register itself is the principle proof of the number of persons that voted in a polling unit not the so-called card reader.
When you also remember that some of the INEC witnesses did testify that some of the card reader details were not uploaded. So it shows you that some card readers like most technologies are susceptible to error and cannot be reliable. If it is in-deed the intention of the legislature to elevate the card read to a level higher than the voter’s register, then the Electoral Act should be amended to make that provision but until that is done, this is the situation where we found ourselves. The card reader cannot supersede the voter’s register.
Does the EFCC have the power to keep suspects beyond 48 hours?
We have an unfortunate situation where the law is been put into wrong use. Some weeks ago, the Chief Judge of the FCT ordered magistrates to stop giving remand order to the EFCC and other agencies. The constitution requires that a person who is in detention must be charged to court within two days, if there is no court within a certain kilometre radius.
In the FCT for example, there is a court within a radius that you cannot keep a person beyond one day and when you challenged them, they tell you they have an order of remand, that is wrong, the spirit of Administration of Criminal Justice Act (ACJA) pre-supposes that if you want to get a remand order from a court, that the suspect must be taken before the Magistrate Court or the judge who gives that order so that the judge can also consider whether to grant bail at that point or even to take argument from the person’s counsel whether not to grant the bail and we have a situation where you are in detention and you don’t even know there is a remand order against you, that is unlawful, it is unconstitutional.
The whole idea of bringing about this provisions in the ACJA, is to avoid a situation where we have a holden charge, where a court that does not have the jurisdiction to try a matter remands suspect and forgets about the case and they will use that remand order to keep the suspect for prolonged period of time.
That explains why more than 60 per cent of our prison population today are persons who are awaiting trial, who have no charges pending against them in court. It is to cure this anomaly that that provision was put there and they are supposed to make that order that you are to be returned to court within a period not exceeding 14 days to know how far the investigation is progressing, to determine whether there is need to further continue to detain a suspect, so that if the court is not satisfied, there is a proper investigation going on, the court can order the release of such a suspect. So, back to your question.
The constitution requires them to charge a person to court, so if they are not ready to charge to court and are not ready to bring the person to court, where the issue of whether one can be on remand can be taken, then every action by them is unlawful, and I hope that in due course, there will be judicial pronouncements on this because going to get a remand order, ex-parte, whether in chambers or otherwise, is unlawful, it defeats the spirit and intention of the Administration of the Criminal Justice Act and indeed the constitution. So, it is unjustifiable.
Does the law permit the EFCC to seal-off a suspicious property before obtaining an order of court?
Yes, in recent times, we have been seeing “EFCC Keep Off”. I will like to believe and I hope that they are doing that pursuant to getting an exparte order of what they call “Temporary For-feiture Order” from a court, pursuant to Section 28 of the EFCC Act which allows a court to make that and then the chairman will sign, pursuant to Section 33 of the Act. But if that be not the case, then it is illegal. But I also will like us to look at the constitutionality that allows them to freeze assets whether it does not negate presumption of innocence which is provided under the constitution.
The normal practice is not to freeze assets until a person is found guilty but for it to be a consequential order of court, where the court has found a suspect guilty and has joined the property to be part of the proceeds of crime. But we have a situation where in some cases, the EFCC without proving that any account is linked to any commission of crime, is a proceed of crime, go ahead to secure court order which is never brought to the attention of the affected persons to block their bank accounts and seal their premises and I think the court should also make this order and give room for an affected person to within a specified period of time to come back to court to show why such orders should be set aside.
But the few orders that I have seen do not give that room for the affected person to come back to court to challenge it. I think in a democratic society this should be hot button topics for us to talk about in the name of fighting corruption or not fighting it because you wouldn’t want an innocent person to suffer.
Don’t you feel scandalised that Mr. President was recently quoted to have referred to Nigerians in a negative term?
If he did say that, then it is very unfortunate. I find that statement very discomfitting. I know his S.A on Media Shehu Garba came out to say: NO he didn’t, that he was taken out of context, but also yesterday I read an account by The Telegraph of UK, that they stand by their story, that the president really said that.
It won’t be nice for the president to be the person who gives that kind of impression. Somebody told me that a few days ago the Transparency International corruption perception index came out and that Nigeria has slid further down the table.
If it is indeed true, you can only attribute part of the blame to such statements when it comes from your president, because if your president says it, then he must be right and knows what he is talking about. When the Minister of Information says a few individuals have stolen over $9.billion, it should be a source of worry to all of us, especially when there are no convictions, nobody is been named and shamed, we are not being told the names of those who refunded money even if he has agreed with them that they should not be prosecuted. I think the public has the right to know.
Some of these things are not quite cool. I will like to believe the president didn’t say that. Let me give him the benefit of doubt, but if he did say that, not that he hasn’t said somethings that may have hurt the image of the country, but I think his handlers should ensure the president doesn’t say such things whenever he is on a visit outside the shores of the country.
Under which circumstance should an accused person be put in handcuffs?
That is another that has been in the fore. My understanding of the law is that an accused person is not to be put under any restraints, that is the word the law used, handcuffs, leg chains, except the accused person is violent, threatens escape or has been behaving in an unruly manner.
Where a defendant as they are now called or a suspect, has not done any of these things, it will appear to be dehumanising and the violation of the person’s right to dignity. I don’t think it will be right. It doesn’t matter whether tat person is a political office holder, a big man as we call them in Nigeria or an alleged pick-pocket. If there is no likelihood that the person will take to flight, will not try to harm himself or the officer, or do some other unruly things, it will appear to be unnecessary to subject such persons to such restraints.
Is there a better approach the EFCC could adopt in its anti-corruption fight?
Yes, Nigeria is one of the few places in the world where once there is a petition against you, you become a candidate for detention, even when no probable course has been made for it. In some countries, when they arrest you for such offences, chances of your been acquitted would be less than one out of 10, because you would have expected them to gather information, do all the forensic analysis, pile up enough evidence, that by the time you are brought in for questioning, you will find it difficult getting out of it.
But we have a situation here in Nigeria, where the petition says it all. You are brought in, it looks as if you are presumed guilty, prove to us that you are innocent. So if you are not able to explain away anything, even if when you explain away anything, they tell you that you are hereby remanded or they grant you bail and say you have to give us one Permanent Secretary, one first class chief, somebody must own a land in Abuja, just a way of saying we will grant you bail but we know you can’t meet these conditions.
I think thorough and forensic investigation of matters should precede invitation and arrest. Sometimes you will have to be on it for many months, even years. I have read some accounts of some Nigerians living in Europe who are alleged to be involved in some secret society back home in Nigeria.
Some were trafficking women, some that specialise in stealing exotic cars in the western world. I read that for months, the security agents have been on their trail gathering information until they were ready to strike. I will expect that kind of investigation if we are to make something out of it. Build up your facts, build up your evidence, do not depend on a person’s statement to secure conviction.
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