SPECIAL COURTS NOT NEEDED.

Recently, the chairperson of the Economic and Financial Crimes Commission, EFCC was reported in the media as demanding for special courts for the prosecution of Economic Crimes. Madam Farida Waziri was quoted as lamenting the failure of the Agency to secure necessary convictions of accused persons as being due to the absence of special courts to try economic and financial crimes.

This type of advocacy and corresponding lamentation is of course not new having been around with us for quite a while.

In fact, it was prevalent in the military era, where any one in government or close to government could influence the promulgation of a Decree to set up a court, popularly called tribunal to deal with specific situations, ie Rent Tribunal, Armed Robbery Tribunal, even Failed Banks Tribunal, so if more than 10 years into constitutional democracy, there is still a lingering thirst for tribunals and special courts, that is very understandable.

However, beyond this romantic nostalgia, the reasons for the demand by the EFCC helmsman for a special court need to be closely examined in the face of the existing constitution, legal and even practical frame work- Mrs. Waziri is quoted to have said that complicated Court procedure is in the way of prompt and successful prosecution of accused persons particularly of high profile cases. How much of this is factual, legally valid or merely sentimental?

While it is natural under certain conditions to call for radical solutions including special courts for special situations after all as Shakespeare said “unnatural situations doth breed unnatural thoughts" and the problem of corruption and abuse of office in Nigeria constitutes a special situation that must be fought in a peculiar manner, yet we must not lose sight of the fact that we are under a constitution which is supreme and all actions must be guided by the constitution and law. Thus there can never be a resort to illegal means to achieve a legal end, as fighting corruption with illegal means is corruption in itself- A quagmire which the immediate past helmsman. Mallam Nuhu Ribadu fell into, driven by his revolutionary zeal to fight corruption lie constantly resorted to extra- legal means which alienated him from a cross-section of the more objective citizenry who though impressed by his passion to tackle corruption headlong, disapproved of his tactics. He was to experience first hand what it means to be a victim of extra-legal tactics when he was removed from EFCC, demoted in rank and eventually booted out of the police. Having himself been an Apostle of extra-legal means most Nigerians except those who benefited from his rampaging tactics could not sympathize with him. Many felt he deserved what he got.

The point being made here is that the commission and indeed, every agency of government must strictly follow the path of due process and rule of law laid down in the constitution, by conducting its affairs, investigations, arrests and prosecution before the courts known to law, i.e. the Federal High Court and the State High Courts.

The EFCC in particular has the advantage of a number of statutes such as the EFCC (Establishment) Act 2004 the Money Laundering Act, the Advanced Fee Fraud Act and a Few other legislations to support its activities. In addition a number of hardworking and diligent judges have been assigned to determine EFCC matters expeditiously. Several of the provisions of these laws arc radical compared to the old laws; seizure and forfeiture of Assets, obtaining of evidence; etc all aimed at facilitating the work of the Agency.

Thus the question to be asked at this time, is what else does the EFCC need to effectively discharge its duties? Perhaps the agency, will only feel confident to do its work diligently, when it does not need to lift a finger to get a conviction, when the accused persons are denied the presumption of innocence, are not entitled to counsel of their choice, are not entitled to challenge the admissibility of evidence even in the case of tutored and contrived evidence. May be then the clamour for special courts will cease and the lamentation about failed prosecution will no longer arise. But then not only will we need to amend our constitution but then the very essence of our judicial system will have to change from being adversarial to being in the nature of a Spanish inquisition. The truth of the matter is that the EFCC is probably its own worst enemy. Where mere investigation are being conducted into the activities of high profile Nigerians, routine invitations of prominent Nigerians by the commissions is deliberately leaked to the press (presumably to assure the public that the agency is up and doing), when the concerned individuals are arraigned, the arraignment takes front page in National Newspapers, with the executive accused persons escorted by a retinue of security aides as if a Mafia Don or Drug Baron was on trial. After the accused plea is taken in respect of a ridiculous number of charges at times 100, 120, 150 and even more, the celebrated accused person is then driven off Gestapo-style.

The lawyers add to the drama by granting press interviews arguing their cases even more brilliantly than they did in court for media consumption and the court of public opinion. With this grand display the public is primed to believe that the accused is a goner with no hope of escape .except that after the initial grand- standing the prosecution soon becomes lethargic, the prosecution might abandon the prosecution or becomes guilty of indolent prosecution such as tendering uncertified statements of accounts under the Evidence Act on the ground that computer generated evidence being a new innovation in evidence which requires no certification, which results in court based on settled principles rejecting the said evidence. An error for which the agency rather than admit its fault instead goes to the press to blackmail the judge for "Frustrating the war on corruption" after all it is the court of public opinion that will eventual decide the case, is it not? This resort to extra legal means of course is bound to boomerang, as the public is not always as gullible as some imagine. In the particular instance, assuming the learned trial judge was wrong, which is quite debatable in the face of a long list of Supreme Court decisions, all the agency needed to do as to go on appeal.

But perhaps the agency's greatest undoing is the resort to the highly controversial plea bargaining, a legal concept of American origin, it is note- worthy that even in its country of origin it has a well laid out procedure which is strictly applied. Furthermore, certain, classes of felonies are not subject to plea bargain.

But under the EFCC, very serious corruption cases of over 120 counts that would have seen public officers facing "200 years" in prison apart from forfeiting Billions of Naira of stolen funds to the Nigerian State are bargained away that at the end of the day the high profile accused person is found guilty of only one of the over 100 counts and is given the option of paying a meager N1 million out of the over N1 billion involved in the corruption charge, the Igbinedion case is a classic illustration. When to the list of compromised and bungled prosecutions is added the inconclusive prosecutions of several high profile Nigerians whose arraignment was celebrated with funfair like, Prof. Grange, Prof Borishade and Mr. Femi Fani/ Kayode. The public is bound to react negatively to the activities of the commission . And for this sad state of affairs the commission has no one but itself to blame. Not the laws, many of which were made to assist the agency, not the courts who have a duty to do justice according to law not sentiments or public opinion and certainly not by blackmailing defence counsel by accusing them of sabotaging the war on corruption. Defence counsel's duty as ministers in the temple of justice does not include assisting the prosecution in securing conviction against his client even if the same is the nation's worst criminal. In fact such conduct is highly unprofessional.

The EFCC rather than engage in self-pity and seeking undue advantage of special courts, should brace up to the challenge of fighting corruption pro-actively. This can be done by de-emphasizing media publicity for cases, but investing in the best investigative methods, retraining and training of officers, engaging the best prosecutors even seasoned legal practitioners including SAN's who can be encouraged to take up a certain a number of anti-corruption prosecutions either pro-bono or for subsidized fee as part of the proposed re-certification scheme for lawyers, de-emphasize plea bargaining and prosecuting to logical conclusion of cases particularly all high profile cases. While this will not always end in convictions but the inevitable convictions even in a few cases will go a long way to emphasize the commitment of the agency to fight corruption to a stand still.

It is such systematic albeit slow approach rather than the unfair and unconstitutional advantage to be derived from special courts than can guarantee success in the long run for what is a marathon crusade, not sprint, against corruption.