Prosecution Of Corruption Cases: The Judiciary As An Arbiter —Femi Falana

INTRODUCTION

In line with their statutory duties the anti-graft agencies have charged many high profile cases involving former governors, former ministers, serving legislators and other politically exposed persons to Court. But as soon as the suspects are arraigned in Court they are remanded in custody for a few days. Once they are granted bail in liberal terms, they apply for their passports to enable them to travel abroad either to visit members of their families or to honour medical appointments.

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Thereafter, interlocutory applications challenging the competence of the charge or the jurisdiction of the Court are filed. The decision of trial court may be challenged by either party. In the interim applications for stay of proceedings are filed and taken by the trial court or the appellate courts. In the process many cases are allowed to drag on in courts for several years. By the time the interlocutory appeals are concluded which may range from 5-10 years the complainant has lost interest, the witnesses may no longer be around while the trial judge may have retired or elevated to the Court of Appeal. This has been the terrible experience of the ICPC. Those who do not appreciate this disturbing development have continued to blame the ICPC for lack of performance.

However, ordinary Nigerians who are charged with fraud, stealing, obtaining money by false pretences and other economic and financial crimes are promptly tried, convicted or acquitted as the case may be. Apart from a few which take place in the High Courts majority of such matters are tried in the Magistrates Courts, Area Courts and Sharia Courts. The accused persons are hardly granted bail. Even when bail is granted to them they are hardly able to meet the conditions which are usually tied to property. In the process such defendants remain behind bar while awaiting their trial.

The anti-graft agencies are currently prosecuting many high profile cases in the various High Courts in the country. But as a result of frustration encountered in the prosecution of such cases the Honourable Mr. Emmanuel Ayoola, the Chairman of the ICPC has, advocated the suspension of the fundamental rights of accused persons in the trial of corruption cases. On her part Mrs. Farida Waziri, the chairperson of the EFCC is seriously campaigning for the establishment of Special Courts to try corruption cases.

Although my brief in this paper is limited to the role of the judiciary in the prosecution of corruption cases I have taken the liberty to examine the implications of how the lack of commitment of the Umaru Musa Yar’Adua administration has impacted negatively on the work of the corruption agencies. Unless we embark on such critical examination of the anti-corruption policy of the Federal Government, we may not appreciate the apparent lull in the prosecution of corruption cases.

The Political Will to Enforce Anti-Corruption Laws

Right from the colonial era Nigeria has always had anti-corruption laws. But due to lack of political will successive governments have not confronted the menace of corruption headlong. Apart from the military regimes headed by General Murtala Mohammed and Mohammadu Buhari which adopted some draconian measures to combat official corruption other regimes paid lip service to the promotion of accountability in government. Indeed, the Ibrahim Babangida junta made corruption the directive principle of State Policy and engaged in the systematic destruction of cherished national morality and integrity.

The attempt by the Sani Abacha junta to arrest the shameless development through the enactment of the Advanced Fee Fraud Decree, Failed Banks Decree etc failed as the Head of State and other highly placed government officials virtually stole the country dry. It was against this background that the Olusegun Obasanjo administration enacted the Independent Corrupt Practices and Other Related Offences Commission Act 2000. Even though the law made adequate provisions for dealing with corruption and corrupt practices its enforcement was put in abeyance for about two years as the constitutional validityy of the Act was challenged in Court. (See Attorney-General, Ondo State v. Attorney-General of the Federation (2002) 27 WRN 1).

In that case the Ondo State Governments had challenged the power of the ICPC to investigate and prosecute its officials for corruption. In its judgment the Supreme Court held that the law was validly enacted by the National Assembly. However, as the law was deficient in many respects the Economic and Financial Crimes Commission (Establishment) Act 2002 was enacted. The Commission set up under the Act was given extensive powers to deal with all economic and financial crimes. In addition the Commission has been empowered to enforce the provisions of the Advance Fee Frauds and other Related Offences Act 1995, the Money Laundering Act 2004, the Failed Bank (Recovery of Debt and Financial Malpractices in Banks) Act 1984 and the Banks and Other Financial Institutions Act 1991, the Miscellaneous Offences Act 1984 and any other law relating to economic and financial crimes including the Criminal Code and the Penal Code. (See Section 7(2) of the EFCC Act 2004).

From the foregoing, it is indisputable that there are enough laws in the statute book to stamp out the menace of corruption. But the enforcement of those laws depends on the political will of the governing class coupled with the creation of an enabling environment for a corrupt free society. Under the present political dispensation, the mantra of Rule of Law has been invoked from time to time to frustrate the investigation or prosecution of some sacred cows who are close to the establishment.

The Role of the Judiciary in the Prosecution of Corruption Cases

Judiciary is a term used collectively to refer to judges, magistrates and other adjudicators who are assigned the task of resolving conflicts and disputes in accordance with the law in a given state. It is an important organ of government in a democratic society. In any country where there is separation of powers it is the responsibility of the judiciary to interpret the constitution and other laws in order to maintain law and order. According to Aguda:

“It is almost axiomatic that the judiciary plays a pre-eminent role in any democratic dispensation. Indeed a political system can be considered as on the basis of the extent to which the judicial arms is permitted to hold the scale of justice over and above the other arms of government. The source of authority of the judiciary for exercising this critical function is of cause, the constitution which fact captures in a rather poignant fashion, the interplay of the judiciary, constitutionalism and democracy. For if good governance has become a modern day requirement, human ingenuity is yet to devise a means of preventing arbitrariness and ensuring social wellbeing than of separation of power due process of law or rule of law and independence of the judiciary which taken together constitute the hallmark of a well functioning democracy”

My submission is that the judiciary, like the law, is not neutral as judges are biased on the side of the bourgeoisie. Hence, they resort to technicalities in the interpretation of anti-corruption laws. While the promoters and beneficiaries of corruption are allowed to go scot free, its victims – armed robbery suspects, militants, kidnappers, drug couriers etc are paraded as the “enemies of the society” in the eye of the law.

It is common knowledge that public officers who violate the provisions of the Constitution by engaging in corrupt practices turn round to invoke the rule of law to shield themselves from prosecution. In the case of Attorney-General of Ondo State v. Attorney – General of the Federation Ors. (2002) 27 WRN 1 at 130 the Plaintiff had challenged the constitutional validity of the ICPC Act on the ground that it violated the principle of federalism. In dismissing the case the Supreme Court (per Katsina-Alu JSC) observed inter alia:

“Corrupt practices and abuse of power spread across and eat into every segment of the society. These vices are not limited only to entertain sections of the society. It is lame argument to say that private individuals or persons do not corrupt officials or get them to abuse their power. It is good sense that everyone involved in corrupt practices and abuse of power should be made to face the law in our effort to eradicate this cankerworm”.

But in actuality members of the governing class have not been made to face the law on the grounds of class solidarity. Judges being part and parcel of the society have always responded to the policies of the government. Notwithstanding the contradictions inherent in the anti-corruption crusade of the Obasanjo regime, the Judiciary, to a large extent contributed to the success recorded in the prosecution of cases by the anti-graft agencies. Thus, between 2003 and 2007 the EFCC concluded about 250 cases. In one of such cases, the speed with which the funds stolen from a Brazilian Bank were recovered went a long way to convince the international community that Nigeria was indeed committed to the eradication of economic and financial crimes in all their ramifications. In that case and several others, the judiciary played a prominent role in the success recorded by the anti-graft agencies.

However, there were instances when the judiciary can be said to have given judgments that tended to undermine the anti-corruption crusade. In Ohwovoriole SAN v. FRN (2003) 15 WRN 1 the High Court and the Court of Appeal dismissed the appellants’ preliminary objection on the ground that he had a case to answer. But the Supreme Court held otherwise. According to their Lordships:

“Therefore, if on the 22nd of May, 2001, when the learned trial judge granted leave to prefer the charge against the appellant, the evidence per paragraphs 4 and 5 of the counter affidavit of Mr. Obuotor was not available or placed before the trial court, what was before him would be insufficient, in my view, to link the appellant with the offence and give ground for proceeding against him. It is not the duty of the Court of Appeal to fish or scuttle around for evidence or to go to the extent of presuming the same when a party fails to produce it”.

In Abacha v. State (2002) 32 WRN 1 the Appellant was jointly charged along with three others before the Lagos State High Court on a 4-count information of conspiracy and murder. The last two counts charged the Appellant alone by accusing him of assisting two persons to murder Mrs. Kudirat Abiola and later providing them with money with intent to facilitate their escape from justice. From the statement of the Appellant he readily admitted that he gave $10,000 to each of the two accused persons to flee the country.

The preliminary objection of the Appellant which sought to quash the charge on the ground that it disclosed no offence against him was dismissed by the trial court and the Court of Appeal which held that a prima facie case had been established against him. In setting aside the decision of the two lower courts the Supreme Court (per Belgore JSC) held that the “giving of money to these two persons has not amounted to screening them from justice on the facts in the proof of evidence attached to the information”. 

As if that was not enough his lordship cautioned the prosecution to be “wary of being accused of persecution rather than prosecution”. In his minority judgment Ejiwunmi JSC refused to submit to what he called “the tyranny of the majority in its capricious interpretations of settled principles laid down in Ikomi v. State(supra) “. He therefore upheld the decisions of the two lower courts that the Appellant be called upon to put in his defence to the charge.

In the same vein, in Umana v. Attah (2004) 7 NWLR (PT 871) 63 the Appellant had sought to have the Respondent disqualified on the ground that he had been indicted by the Code of Conduct Tribunal. The petition was dismissed by the Election Petition Tribunal. On appeal the Court of Appeal held:

The purported indictment of the 1st Respondent before the Code of Conduct Tribunal when he was the Governor of Akwa Ibom State is one singular odd that weighted against the grotesque argument of the Appellant about the disqualification of the 1st Respondent as the provisions of sub-section 308(1)(b) & (c ) impliedly rendered null and void any charge or indictment against that Respondent; indeed, every process originating the arraignment before the Code of Conduct Tribunal that sounds stranger than a fiction. That point is exemplified by the decision of this court in Tinubu v. IMB Securities Ltd. (2001) 8 NWLR (PT 714) 197-198, (2001) FWLR (PT 71) 1003, 1025-1026. That in, sum, rendered nugatory the indictment before the Code of Conduct Tribunal if one was ever proffered in the technical sense of that expression, a mode of arraignment against which serious doubts have been cast by the election tribunal with which view I am in absolute agreement.”

In the case of Alhaji Atiku Abubakar v. Code of Conduct Tribunal the Court of Appeal held that the use of the word “charge” in the complaint laid before the Code of Conduct Tribunal suggested that it was a criminal proceeding contrary to the provisions of section 308 of the Constitution. In taking that stand the Court of Appeal did not advert its mind to the decision of the Supreme Court in Okeke v. LPDC (2005) 15 NWLR (PT 949) 532 where the word “charge” was defined to mean:

“In legal parlance what indeed is a charge. It is indeed a denouncement by which an authorized person or body invested by statute could lay a complaint against someone tending to show that an offence or some form of breach of law or ethics of the profession has been committed. It equally imports some elements of delinquency or inappropriate act which stigmatizes and renders one liable to be disciplined if proved. The characteristics or feature of a charge do not lie in procedural formalism but rather in the contents of the unrighteous act being brought to the knowledge of the person indicted in good lucid and readily understandable English as in the present case. 

In the case before us now the charge or as I choose to call it, the denouncement was couched in a simple prose and he was requested to appear before the peers of his profession. It is not an indictment wearing a criminal garb. The issue before us is as to whether the act of the appellant constituted a gross misconduct to affect his status in the profession of the Bar. Therefore, to latch or clutch on the defence of improper charge laid, shows the inability of the appellant to fully grasp the nuances associated with the procedure in handling his case by the Respondents”.

A critical look at the contraventions enumerated in the Code of Conduct for Public Officers show that they are not criminal offences but violations which are in the nature of moral wrongs like conflict of interest, abuse of office, failure to declare assets, operation of foreign accounts etc. Hence it was held in Anago-Amanze v. Onwudiwe (1985) 6 NCLR 620 at 640 that:

“…it is only the Code of Conduct Tribunal that can go into any complaint against any, public officer including the Governor for contravention of the Code of Conduct. The court cannot assume jurisdiction in a matter that calls for enquiry the issue of the contravention of the Code of Conduct by the Governor or any public officer for that matter.”

Furthermore, the punishment which the Code of Conduct Tribunal can impose is limited to an order for the vacation of office or seat in a legislative house, forfeiture of assets or prohibition from holding public office for a number of years. However, where the alleged contravention is also a criminal offence it is stated that the sanction imposed for the breach of the Code of Conduct “shall be without prejudice to the penalties that may also be imposed by any law”. In other words the trial of a public officer by the Code of Conduct Tribunal shall not prevent his/her prosecution where the conduct also constitutes a criminal offence. (See paragraph 18(3) & (6) of Part 1 of the 5th Schedule to the Constitution).

On the basis of the decisions of the appellate courts in the cases of Umana v. Attah (supra) and Atiku v. AGF (supra) the Code of Conduct Tribunal has had to strike out all pending cases against sitting governors. With profound respect, this is wrong in view of Second Schedule to the Code of Conduct Bureau and Tribunal Act and Part II of the 5th Schedule of the Constitution which have listed the President, Vice President, Governors and Deputy Governors among public officers for the purpose of the Code of Conduct. 

I am not aware of the case of Audu v. F.R.N. where the Court of Appeal held that ex governors could be tried by the Code of Conduct Tribunal after his term of office. It is however submitted that there is no provision for the trial of former public officers under the law. Otherwise the law would not have clothed the Code of Conduct Tribunal with the power to order the removal of a public officer from office or a legislator to vacate his/her seat.
The Yar’Adua Administration and the Anti-Corruption Crusade

Upon the inauguration of his administration on May 29th, 2007, President Umaru Musa Yar’Adua stated that he was going to fight the menace of corruption under the rule of law. Since he also announced that he had zero-tolerance for corruption, the Nigerian people genuinely believed that he was going to address the short-comings of the anti-graft agencies. More so, that he declared his assets and sent his asset declaration forms to the media. But his failure to ensure that other government officials follow suit created doubts in the minds of Nigerians on the commitment of the government to fight corruption head on.

If anybody was in doubt as to the position of the government on official corruption, the Honourable Attorney-General and Minister of Justice demonstrated, in words and deeds that it was going to be business as usual. In order to usurp the statutory functions of the anti-graft agencies, he directed them to forward every case file to his office for vetting before filing in court. But the EFCC and the ICPC rightly protested the illegal directive. In my reaction to the misleading stance of the Honourable Minister, I drew the attention of the Federal Government to the case of Osahon V FGN.

Incidentally, it was Mr Nuhu RIbadu, who as a police prosecutor had filed a case at the Federal High Court against the accused persons for stealing an oil block. The charge was challenged on the ground that the police officer could not file such a charge without the express authorization of the Attorney-General. In upholding the dismissal of the objection by the trial Court, the Supreme Court held that agencies of government empowered to prosecute cases could initiate criminal proceedings on their own provided that the Attorney-General could take over or discontinue them.

Although the government retraced its steps by dropping the illegal directive, the office of the Attorney-General has regularly interfered in the investigation of cases apart from the gross abuse of the powers of nolle prosequi in corruption cases. In the notorious case of Siemens, the ICPC had commenced investigations into the allegation of the involvement of some top government officials in the multi-million dollar bribe for which the company had been convicted by a German Court. The ICPC was still in the process of obtaining statements from the indicted Nigerian officials when the Federal Government was reported to have ordered the EFCC to take over the investigation.

The directive was totally illegal as it violated Section 3 of the ICPC Act which states that, the Commission shall not be subject to the directive of any other authority or person. Unfortunately, the ICPC did not protest the illegal interference in the discharge of his statutory duties. However, Nigerians were later informed that Siemens which had been blacklisted by the Federal Government for its corrupt practices had won another juicy contract worth billions of naira. In an embarrassing defence of the award of the contract, President Yar’Adua claimed that the German Chancellor, Angela Markel made a case for Siemens. It is submitted that the President has no powers whatsoever to grant pardon to a criminal suspect who has not been tried by a competent court in Nigeria.

Not only has Siemens been left of the hook, but also their Nigerian accomplices involved in the bribery saga have been “granted amnesty” without any investigation or prosecution. There are strong indications that the Halliburton case may also go the way of Siemens. The request made to the US Government by the Attorney-General for the list of indicted Nigerian officials who where bribed with the sum of US$180million is totally diversionary. From the information at my disposal, both the EFCC and a Committee of the House of Representatives had made substantial progress in the investigation of the scandal. In fact, it is from the report of such investigations that the Mike Okiro led panel obtained preliminary information that led to the arrest and interrogation of several suspects. The sum of N50m has just been approved by the FGN for a wild goose chase by the panel.

There is no doubt that Halliburton violated the provisions of the ICPC Act by bribing Nigerian officials in order to secure the NLNG contract. Instead of charging the American company to a Nigerian court where it would have disclosed the names of its accomplices as it did in a US Court, the Attorney-General of the Federation threatened to sue for libel. When he discovered that that was not the proper course of action, he applied to the US for cooperation under the Mutual Legal Assistance agreement between Nigeria and the United States. Not unexpectedly, the request was rejected. I have since confirmed that the rejection of the request was based on refusal of the office of the Attorney-General to honour several requests which had been made by several anti-graft agencies in Western countries.

As far as the Honourable Attorney-General is concerned, Nigeria would not sacrifice its sovereignty by collaborating with foreign countries to put Nigerians on trial abroad. Hence, the Honourable Attorney-General once challenged the French government for jailing a former Minister of the Federal Republic of Nigeria. On another occasion, the office held a world press conference to celebrate the lifting of the order on the assets of a former Nigerian Governor when a British Court rejected the documents submitted to the Metropolitan Police by the EFCC. It is interesting to note that the position of the Attorney-General is not in consonance with Section 6 of the EFCC Act 2004 which has conferred powers on the EFCC to relate directly with similar anti-graft agencies abroad with respect to money laundering offences.

Apart from direct interference by the Executive in the work of the anti-graft agencies there has been self censorship on the part of officials of anti graft agencies. Worse still, some of the persons whose cases are under investigation or who have been charged to Court have used their positions to influence the reorganization of the anti-graft agencies or redeployment of their officials. Such manipulation and interference have led to the perception that the anti-corruption war have been completely taken over by anti-social forces.

In the light of the foregoing, Nigerians have found it difficult to believe that the Federal Government, under the Presidency of Alhaji Umaru Musa Yar’Adua, is committed to the anti-corruption crusade. A situation where some of those who are standing trial for serious corruption offences are reported from time to time to take part in policy formulation and execution, the prosecution of cases involving such persons can hardly be pursued diligently. In the circumstances, the judiciary cannot be held responsible for the contradictions confronting the anti-corruption policy of the government.
Bail for Accused Persons in Corruption Cases

Although equality before the law is one of the basic ingredients of the rule of law, accused persons who have been charged with treason as a result of official corruption and criminal neglect of the Niger Delta have had their bail applications rejected. See Henry Imomotimi Okah v. F.R.N (Charge No: FHC/ABJ/CR/178/2007). Notwithstanding the presumption of innocence that inures in favour of accused persons the Courts have continued to deny bail to persons charged with treason on account of their alleged involvement in civil disturbances. In Dokubo Asari v. F.R.N (2007) 30 WRN 1 at 38 the Supreme Court held:

“Where national security is threatened or there is the real likelihood of it being threatened human rights or the individual right of those responsible take second place. Human rights or individual rights must be suspended until national security can be protected or well taken case of. This is not anything new. The corporate existence of Nigeria as a united, harmonious, indivisible and indissoluble sovereign nation, is certainly greater than any citizen’s liberty or right. Once the security of this nation is in jeopardy and it survives in pieces rather than in peace, the individual’s liberty or right may not even exist”.

See also the cases of Faseun v. A.G.F. (2007) 11 WRN 87 and Gani Adams v. AGF (2006) 44 WRN 46. But when it comes to cases of economic and financial crimes involving grand corruption these days the Courts have been waxing eloquent in defending the fundamental rights of accused persons to fair hearing. Not only have they been admitted to bail in liberal terms the passports of such influential accused persons have been released to facilitate the enjoyment of their fundamental right to freedom of movement. In Ibori v. F.R.N. (2009) 3 NWLR (PT 1127) 94 at 104-105 the Court of Appeal held:

“The scenario painted by the 1st Respondent is better appreciated if the Applicant was still in prison custody, but he is not; he was admitted to bail on the 11th of February 2008, and has since been treading the Nigerian soil and breathing the Nigerian air as free as any innocent man – See Saidu v. State (1982) 1 NCR 89; (1982) 4 SC 41. If we buy into the 1st Respondent’s argument, it would mean that an accused person, who is on bail and presumed innocent, is still confined to the prison of Nigeria. 

He would then wear the tag and toga of a criminal, who should never leave the country for fear that he would be arrested in another country. How preposterous; the applicant is already on bail, and merely wants his passports released to him so that he can travel and see to his health and other personal matters, and I do not see why he should be denied.”

The attitude of the Courts was totally different under the Olusegun Obasanjo regime when the bail applications of those who were standing trial for serious economic and financial crimes were denied. See Nwude v. F.G.N, (2004) 41 WRN 124; Ofulue v. F.R.N (2006) EFCLR 100; Anajemba v. F.R.N. (2004) 13 NWLR (PT 890) 267 and Ajidua v. F.R.N (2006) EFCLR 1. The refusal of bail in those cases accelerated the trial as accused persons were anxious of know their fate.

Unlike the ICPC whose cases are bogged down due to order of stay of proceedings the EFCC has been able to conclude close to 300 cases. The success recorded in this regard is traceable to Section 40 of the Economic and Financial Crimes Commission Act which provides:

“Subject to the provisions of the Constitution of the Federal Republic of Nigeria 1999 an application for stay of proceedings in respect of any criminal matter brought by the Commission before the High Court shall not be entertained until judgment is delivered by the High Court”.

In Nwude v. FRN (2006) EFCLR 149 at 161 the constitutionality of the above provision was challenged by the defence counsel. In dismissing the objection Oyewole J. held:

“The provisions of the said section in my view only seek to further give life to section 36 of the Constitution and the intention of the legislature in this instance is to remove impediments in the way of the administration of justice. It is not directed against the accused alone for it is not just the accused person alone that makes interlocutory appeals and seeks to stay proceedings as could be seen in the case of State v. Ajayi (supra) where stay was actually sought by the prosecution”.

Harassment of Prosecutors In some of the corruption cases, prosecutors have been attacked by thugs of accused persons. The police have always turned the other eye. In exercise of their fundamental rights under the rule of law, it is not uncommon these days for rented crowds to sing in praise of persons standing trial for serious cases of corruption. 

Though those rallies which are usually staged at Court premises are allowed by the police, rallies convened to protest the rigging of election by the government are usually dispersed with teargas and live bullets by the police under the pretext of maintaining law and order. Recently, some human rights activists were arrested at Osogbo for their peaceful protest against official corruption in Osun State. They were brutalized by the Police and charged with unlawful assembly and breach of the peace before the Chief Magistrates Court. 

Following the refusal of the bail application of the accused persons they were remanded in prison custody! Granting Injunction Against Anti-Graft Agencies In line with the rule of law policy of the current administration criminal suspects now rush to court to enforce their fundamental rights to liberty whenever they are invited to respond to serious allegation bordering on economic and financial crimes. When this trend assumed a dangerous dimension recently I cautioned that armed robbery suspects and other dangerous criminal suspects might soon apply for ex parte orders to restrain the police from investigating them. Since then the nation has witnessed the indiscriminate granting of ex parte orders restraining the anti-graft agencies from carrying out their statutory duties. 

There was even a case where a High Court judge granted a perpetual injunction preventing the Economic and Financial Crimes Commission from arresting, detaining, interrogating or prosecuting a former governor with respect to any economic or financial crime committed while he was in office. Thus, by a judicial fiat the immunity conferred on the ex-governors while in office has been extended to last throughout his life time. In another case involving a foreign company it was discovered that the Federal High Court granted 10 ex parte orders in two years which restrained the customs service from collecting legitimate duties on importation of vehicles into the country by the company. The Intervention of Independent Counsel In spite of the clear provisions of the Constitution, the ICPC Act and the EFCC Act both law enforcement agencies have continued to give the misleading impression that they are hampered by Section 308 in exposing wanton corruption on the part of those who are protected by the immunity clause. With respect, the situation is not as hopeless. 

By virtue of section 52 of the ICPC Act the Chief Justice of Nigeria is empowered to appoint an Independent Counsel (who shall be a legal practitioner of not less than 15 years standing) to investigate any allegation of corruption against the President, Vice President Governor or Deputy Governor. At the end of such investigation the Independent Counsel is required to make a report of the findings to the National Assembly or the House of Assembly of a State as the case may be. The ICPC has had cause to submit over 20 applications to the Chief Justice of Nigeria for the appointment of Independent Counsel to investigate sitting governors. Instead of applying for an order of mandamus to compel the Chief Justice to carry out his statutory functions under the ICPC Act the case files were reportedly withdrawn by the ICPC. Thus, section 52 of the ICPC Act has not been tested for the past 9 years. 

The Way Forward The on-going move to amend the anti-graft laws by the National Assembly should be supported by the anti-graft agencies in particular and Nigerians in general. In order to strengthen the EFCC and ICPC to perform their statutory functions without interference the Nigerian people must earn the confidence of both institutions. The general perception now is that the anti-corruption battle has been lost to the rule of law policy of the Federal Government. 

The proposed amendment of the anti-graft agencies ought to take cognizance of the input of Nigerians in the fight against corruption. In particular, the National Assembly should ensure that the appointment and the removal of the heads and board members of anti-graft agencies are ratified by the Senate. It has been observed that the board members of the anti-graft agencies are appointed from the various statutory bodies or government departments. It is my humble opinion that the constitution of the board makes it susceptible to government influence and control. 

It has therefore been suggested that the board should be composed of nominees of the Nigerian Bar Association, Nigerian Union of Journalists, Nigeria Labour Congress, the Nigeria Police, Institute of Chartered Accountants, Federal Executive Council, International Federation of Women’s Lawyers (Nigerian Chapter) or any other relevant women’s group. 

The ICPC has close to 200 cases pending in the various High Courts and appellate courts. Unless the law is amended to eliminate or reduce interlocutory appeals many of those cases will never be concluded in the near future. The law of evidence should be completely overhauled to accommodate new trends in science and developments in law. 

A situation whereby computer print out of bank statement is rejected by a trial court cannot be accepted. In the recent case of Amadi v. FRN (2009) 9 WRN 36 the Supreme Court endorsed the finding of the trial Court to the effect that the e-mail address of the accused was properly admitted in evidence. Having regards to the experience of Nigerians in the fight against corruption, it is hoped that the National Assembly will consider the proposed amendments and pass them without any further delay so as to reinforce the powers of the anti-corruption agencies in the discharge of their statutory functions. In particular, both the ICPC and EFCC should be empowered to submit quarterly reports of their activities. Apart from debating such report the National Assembly should subject them to public hearing. The anti-graft agencies particularly the ICPC which is headed by a retired Supreme Court Judge should organize seminars and workshops for judges on the menace and consequences of corruption. 

The media should highlight the judgment of courts and interrogate judges who hand down decisions that tend to support corruption, election malpractice and other heinous crimes. Imposing a little fine on a person who pleads guilty to a charge of multi billion fraud is a mockery of the criminal justice system. Any society whose criminal justice system is controlled by barons cannot guarantee political stability. In view of the increasing personalization of the State by the officials of government many countries including the United Kingdom have separated the office of the Attorney-General and the Minister of Justice. 

Today, 10 out of the 15 member states of the Economic Community of West African States (ECOWAS) have carved out the office of the Attorney-General from the office of the Attorney –General & Ministers of Justice. It is therefore suggested that the on-going review of the Constitution should ensure that the same person does not combine the position of the Attorney-General with that of the Minister of Justice. Conclusion In bringing this paper to rest, kindly permit me to refer to the statement I made at the commencement of the anti-corruption crusade of the Obasanjo regime in 2000. 

I had stated then that: “… The Nigerian State ought to create an enabling environment for accountability and transparency in governance by ensuring that the fundamental objectives outlined in Chapter II of the 1999 Constitution are made justiciable. 

A society which cannot establish a social security scheme to provide adequate shelter, sufficient food, old-age care, pension and gratuity, unemployment and sick benefits and welfare for the disabled cannot meaningfully tackle corruption and promote accountability in government”. —(Being the Text of the Paper Presented by Femi Falana at the 2009 National Conference of Anti-Corruption Committees in Nigerian Legislatures and Heads of Anti-Corruption Units in Government Establishments Organized by the Independent Corrupt Practices and Other Related Offences Commission (ICPC) in Conjunction with the National Assembly Committees on Anti-Corruption held at Akure, Ondo State from June 16-18, 2009
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