The fundamental concern of this piece however is the discernible irony in the entire saga that it took a mere crown court in a foreign country to bring these fellows to book in relation to grave felonies that were essentially committed in Nigeria after it became almost clear that the fabled long arm of the law in our country would be unable to hold these fellows to any account in relation to their heinous crimes. They were tried and convicted within a space of two years for the ancillary offences of false age declaration and daring to internationalize their criminality by way of money laundering whereas the Nigerian authorities and judicial system have for almost 10 years been helpless and sometimes complicit in relation to the principal and substantive crimes of perjury, stealing, treasury looting and corruption against these persons.
The irony is particularly underscored when one recalls the summary discharge of the same Ibori by the Federal High Court first sitting at Kaduna and then Asaba in relation to 170 counts charge of corruption, embezzlement and financial pillaging brought against Ibori by the EFCC upon the expiration of his second term in 2007. It was partly the acquittal Orders from these courts that Ibori through the now suspended SAN, and former AG Aondoakaa sought to employ as a bar whilst investigations were on-going in the UK.
By the conviction, the Southwark’s court, using the very ‘best evidence’ (confessional statement and admission in court from the felon himself ) would appear to have given an embarrassing lie to all the important decisions and verdicts of our own courts even at the highest level in relation to Mr Ibori’s proper status with the law, the criminal law inclusive. Mr Sasha Wass, the prosecutor was on point when he declared that Ibori has accepted that he was involved in : ‘wide-scale theft, fraud and corruption when he was governor of Delta State… Mr ibori tricked his way into public office. He had tricked the Nigerian Authorities and the Nigerian voters…’
Therefore assurances by the Nigerian Authorities soon after the conviction that Ibori would be made to face trial in Nigeria in relation to the principal offences after serving his term in the UK come across as a feeble afterthought and must ring hollow in the ears and minds the discerning. The Authorities will do well to demonstrate sufficient earnestness in the prosecution and conviction of the tens of the other Iboris still strutting our terrain whilst flaunting their ill-gotten wealth.
The issues arising from this saga are as varied as they are mind-blowing and troubling.
The anti-graft bodies and lately the NBA itself have severally been heard to lament the perceived collaborative and even conspiratorial roles of prominent lawyers and some judicial personnel in frustrating the prosecution and conviction of thieving officials.
These come in diverse forms: in the distressingly slow pace in which these matters are handled, the collaborative role of defence counsel in stalling these trials most times on mere technicality , the unjustifiably indulgent role of a judiciary that is yet to come to terms with the modern jurisprudential philosophy of discarding the form once the substance is clear and lately we hear of ‘consultants’(mostly senior lawyers and retired judges) whose specialty is to act as conduits for transfer of bribe money from litigants to presiding judges.
The sum total of this malaise is a near-total collapse of the subsector in relation to the quality of justice dispensed especially in corruption cases. A system that would spend billions of funds every year taking care of its legislators and other stakeholders at all levels in the guise of making and enforcing laws for ‘the peace, order and good government of the federation’ but is unable to concretely punish incorrigible but powerful felons who flout these costly and expensive laws with the rudest of impunity is a system that is certainly on a time bomb.
Every lawyer knows that even though the law is not common sense or even logic, the courts habitually employ the metaphor of ‘a reasonable man’s test’ in arriving at decisions. For it would be a sad day indeed when the law starts being at variance with common sense.
Therefore, if we take a cursory look at recent corruptions cases in our courts can we honestly declare to ourselves as dispassionate observers and using the self-same ‘reasonable man’s test’ that justice had been done or is being done or will even be done in 90% of these cases using the parameters of speed/delays, dubious plea bargains, use of technicalities, judicial indulgence etc.?
In this context we recall that even though the principal and substantive crimes in the Halliburton, Siemens and Securency scandals were perpetuated in Nigeria and whilst we are still shielding the powerful Nigerians that perpetuated them, the ancillary and inchoate offences have since been thoroughly prosecuted and culprits severely dealt with in the US, UK, Germany and Australia respectively.
We are similarly not likely to forget in a hurry the spectacular case of the ex-governor of Rivers state, (whom we are obliged to presume innocent by the combined effect of both our substantive and adjectival laws) who approached the courts soon after his tenure ended, asked for a perpetual injunction to restrain law enforcement agencies from investigating him under any guise or disguise. Strange as it seemed, a court in the land granted it. Thenceforth a law enforcement agent would only come near him on pains of standing in contempt of that court!
If a system cannot punish then obviously it cannot deter. If it cannot deter then it would certainly breed a culture of impunity. Certainty of punishment and not necessarily the severity is what deters. Where there is a culture of impunity especially in relation to official corruption most other remedial measures no matter how well- intentioned including the endless call on the masses of the people to make their sacrifices available for the good of all like the recent removal of petroleum subsidy would amount to ‘all labour lost’. Impunity would only give rise to many more Iboris who would syphon any real or imaginary gains of any such sacrifices to their private purposes . A society that allows its criminals to get away with their deeds is a society that lives to fight another day. For sooner or later it would take its toll on us all.
THE goal of every proceedings in a court of law is to achieve substantial justice in a tripartite whole, justice being in fact a holistic concept: justice for the accused, justice for the complainant and justice for the society/victims of crime. Hiding under long- discredited legal technicalities and other ill-motives to allow known criminals walk the street freely whilst depriving millions of fellow citizens their own right to life, meaningful life is certainly an out-moded notion of justice, if it ever qualified to be so called.
Consequently, some stakeholders notably the erstwhile Chair of the anti-graft body Farida Waziri, have posited that the best way out of the logjam is to remove graft cases from the regular courts where they must of necessity take their turns in courts that are already overcrowded and case-weary and file these cases in courts that are specially created for that purpose. The envisage salutary results would be speed, bite, specialization and overall efficiency. Indeed everywhere one turns, specialization seems to be the norm: the Federal Revenue Courts in time past, the refurbished National Industrial court, the Armed Robbery Tribunals, the present Election Petition Tribunals, the Rent Tribunals/courts, in some jurisdictions like south Africa, the Constitutional Courts and even the ICC established by the Rome statute of 1998 to specially try cases of genocide, war crimes and crimes against humanity.
We endlessly talk about creating ‘an enabling investment climate’. An investment climate can only exist within a proper legal framework where good laws are not only made but respected and enforced across board.
Again opinions are rift that Ibori found himself in this pickle precisely because there emerged a ‘pharaoh on the thrown who did not know Joseph’ and that if the late president who is rumoured to have been substantially bankrolled into office by Ibori had not died and Aondoakaa had tarried, the convict would still be walking this land a free man whilst flaunting with every swagger at his disposal his ill-gotten wealth. He therefore found himself in this predicament because he is simply not on the same page with the present powers that be.
A practice that has recently taken the toga of a subculture in this clime is that on rare occasions when courage has been demonstrated and some of these high profile suspects are arraigned on grave corruption charges, the next macabre spectacle you behold is a horde of ethnic, political and other loyalists storming the court’s premises in aso-ebi to protest their son’s/godfather’s/mentor’s innocence even before any opening speech by the prosecutor! One can indeed imagine the threat to the person of the judge or even orchestrated protests on the street/court premises if the proceedings at the Southwark court had occurred in Oghara or Asaba or Abuja or even elsewhere in the country.
Our reforms must start today if our goals of launching ourselves in the league of serious nations must be realized. The malaise is no doubt a systemic one and a bye product of failure of the entire governance mechanism in the country. The reforms must therefore be fundamental and structural. All pending Bills relating to the justice sector must be passed without further delay. White papers from commissions of Inquiry in relation to the justice subsector must be released and implemented. The EFCC must be overhauled. Creation of special courts to try corruption cases must by now be obvious to all as an idea whose time has come for purposes of speed, transparency, bite and efficiency.
Giving the grim reality it may well be in place to take a second and critical look at section 308 of the constitution. That nebulous section of doubtful constitutional/social value that shields certain office holders like the president his vice, governors and their deputies from prosecution whilst in office. Did anybody really have to wait for an Ibori to pillage the treasury and conceal his loots in all nooks, corners and crannies of the globe for 8 long years before moving in on him? It pretty looks like shutting the stable after the horse has bolted.
The NBA ought to be tired of shouting itself hoarse over influential colleagues who are known to have compromised its ethics in such fundamental and highly prejudicial ways as to bring the profession to ridicule and infamy. The NBA and indeed the legal profession cannot continue to act the toothless bull dog in relation to grave professional infractions by senior, well-connected and powerful colleagues only to be quick to wield the big stick against small fries in relation to trifling and inconsequential professional infractions. The NBA should go beyond sanctimonious platitudes and take precipitate and concrete steps against all its members involved in this unsavoury development in the justice subsector. The rules and extant statutes more than provide for what must be done.
As for the judiciary one can only commend the words of that pre-eminent jurist, Chukwudifu Oputa to the powers that be when he declared in his Magnum Opus In The Eyes Of The Law at page 12 that:
‘ ..Honesty and judicial rectitude are therefore the very minimal requirements of the judicial office. Less than that, no disciplined and responsible judiciary should accept; and less than that, no disciplined society should tolerate.’
Justice and the ability to do justice to all manner of men irrespective of position, political connections or stature remain the bedrock of countries we sometimes hate to love. A justice delivery system that is perceived as weak, corrupt and incompetent is anathema to progress and growth.
In recent times, the health subsector of the economy has been practically outsourced to well- equipped medical facilities in South Africa, Egypt, India, Saudi Arabia, the US and the UK especially for privileged Nigerians who can afford it. Brain drain from the academia is a byword amongst teaching staff. Nigerians would prefer to send their children abroad where they are sure of facilities and the quality of staff. The Ibori case may well signal the beginning of outsourcing our justice delivery to other countries to help prosecute and send to jail our powerful criminals on grounds that our justice delivery system is too weak, too compromised, too corrupt and therefore too unreliable to deal with our own criminals. Outsourcing our justice delivery system as we have done in the Ibori’s case is but a short step from outsourcing our law-making powers, the ultimate sign-post of sovereignty. There cannot possibly be a greater conspiracy against ourselves and a clearer evidence of a failed state than that. A time for action is clearly now if only to avert an evil prophesy that is already hovering over us like a sword of Damocles.
•Ehiwele is a Lagos-based legal practitioner
Source: guardiannews; by Barth Ehiwele
THE goal of every proceedings in a court of law is to achieve substantial justice in a tripartite whole, justice being in fact a holistic concept: justice for the accused, justice for the complainant and justice for the society/victims of crime. Hiding under long- discredited legal technicalities and other ill-motives to allow known criminals walk the street freely whilst depriving millions of fellow citizens their own right to life, meaningful life is certainly an out-moded notion of justice, if it ever qualified to be so called.
Consequently, some stakeholders notably the erstwhile Chair of the anti-graft body Farida Waziri, have posited that the best way out of the logjam is to remove graft cases from the regular courts where they must of necessity take their turns in courts that are already overcrowded and case-weary and file these cases in courts that are specially created for that purpose. The envisage salutary results would be speed, bite, specialization and overall efficiency. Indeed everywhere one turns, specialization seems to be the norm: the Federal Revenue Courts in time past, the refurbished National Industrial court, the Armed Robbery Tribunals, the present Election Petition Tribunals, the Rent Tribunals/courts, in some jurisdictions like south Africa, the Constitutional Courts and even the ICC established by the Rome statute of 1998 to specially try cases of genocide, war crimes and crimes against humanity.
We endlessly talk about creating ‘an enabling investment climate’. An investment climate can only exist within a proper legal framework where good laws are not only made but respected and enforced across board.
Again opinions are rift that Ibori found himself in this pickle precisely because there emerged a ‘pharaoh on the thrown who did not know Joseph’ and that if the late president who is rumoured to have been substantially bankrolled into office by Ibori had not died and Aondoakaa had tarried, the convict would still be walking this land a free man whilst flaunting with every swagger at his disposal his ill-gotten wealth. He therefore found himself in this predicament because he is simply not on the same page with the present powers that be.
A practice that has recently taken the toga of a subculture in this clime is that on rare occasions when courage has been demonstrated and some of these high profile suspects are arraigned on grave corruption charges, the next macabre spectacle you behold is a horde of ethnic, political and other loyalists storming the court’s premises in aso-ebi to protest their son’s/godfather’s/mentor’s innocence even before any opening speech by the prosecutor! One can indeed imagine the threat to the person of the judge or even orchestrated protests on the street/court premises if the proceedings at the Southwark court had occurred in Oghara or Asaba or Abuja or even elsewhere in the country.
Our reforms must start today if our goals of launching ourselves in the league of serious nations must be realized. The malaise is no doubt a systemic one and a bye product of failure of the entire governance mechanism in the country. The reforms must therefore be fundamental and structural. All pending Bills relating to the justice sector must be passed without further delay. White papers from commissions of Inquiry in relation to the justice subsector must be released and implemented. The EFCC must be overhauled. Creation of special courts to try corruption cases must by now be obvious to all as an idea whose time has come for purposes of speed, transparency, bite and efficiency.
Giving the grim reality it may well be in place to take a second and critical look at section 308 of the constitution. That nebulous section of doubtful constitutional/social value that shields certain office holders like the president his vice, governors and their deputies from prosecution whilst in office. Did anybody really have to wait for an Ibori to pillage the treasury and conceal his loots in all nooks, corners and crannies of the globe for 8 long years before moving in on him? It pretty looks like shutting the stable after the horse has bolted.
The NBA ought to be tired of shouting itself hoarse over influential colleagues who are known to have compromised its ethics in such fundamental and highly prejudicial ways as to bring the profession to ridicule and infamy. The NBA and indeed the legal profession cannot continue to act the toothless bull dog in relation to grave professional infractions by senior, well-connected and powerful colleagues only to be quick to wield the big stick against small fries in relation to trifling and inconsequential professional infractions. The NBA should go beyond sanctimonious platitudes and take precipitate and concrete steps against all its members involved in this unsavoury development in the justice subsector. The rules and extant statutes more than provide for what must be done.
As for the judiciary one can only commend the words of that pre-eminent jurist, Chukwudifu Oputa to the powers that be when he declared in his Magnum Opus In The Eyes Of The Law at page 12 that:
‘ ..Honesty and judicial rectitude are therefore the very minimal requirements of the judicial office. Less than that, no disciplined and responsible judiciary should accept; and less than that, no disciplined society should tolerate.’
Justice and the ability to do justice to all manner of men irrespective of position, political connections or stature remain the bedrock of countries we sometimes hate to love. A justice delivery system that is perceived as weak, corrupt and incompetent is anathema to progress and growth.
In recent times, the health subsector of the economy has been practically outsourced to well- equipped medical facilities in South Africa, Egypt, India, Saudi Arabia, the US and the UK especially for privileged Nigerians who can afford it. Brain drain from the academia is a byword amongst teaching staff. Nigerians would prefer to send their children abroad where they are sure of facilities and the quality of staff. The Ibori case may well signal the beginning of outsourcing our justice delivery to other countries to help prosecute and send to jail our powerful criminals on grounds that our justice delivery system is too weak, too compromised, too corrupt and therefore too unreliable to deal with our own criminals. Outsourcing our justice delivery system as we have done in the Ibori’s case is but a short step from outsourcing our law-making powers, the ultimate sign-post of sovereignty. There cannot possibly be a greater conspiracy against ourselves and a clearer evidence of a failed state than that. A time for action is clearly now if only to avert an evil prophesy that is already hovering over us like a sword of Damocles.
•Ehiwele is a Lagos-based legal practitioner
Source: guardiannews; by Barth Ehiwele
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