Prosecution of Criminal cases especially corruption and related offenses lives much to be desired as Nigerians are losing confidence in the Judiciary.
In an exclusive interview with a Nigerian lawyer and the Principal Partner, F.N Ajuebor & Associates Barrister Favour Ajuebor, throws more light into the why and how the prosecution of criminal cases and the Criminal justice system are being delayed, factors responsible and the way forward as well as issues bothering on the Constitution of the Federal Republic of Nigeria. He spoke to Time Africa’s Chidipeters Okorie, from Asaba, South-South – Nigeria
Excerpts:
Can we meet you?
My name is Barrister Favour Ajuebor. I am the Principal Partner of F.N Ajuebor & Associates; one of the leading Law Firms in Asaba metropolis and we’re majorly into Corporate practice, property management and Litigation. We consult for government, individuals, corporate entities, companies and agencies. That’s basically what we do.
Prosecution of Criminal cases especially corruption and related offenses lives much to be desired as Nigerians are losing confidence in the Judiciary. What is your assessment of the state of our public justice system?
There is something you must understand about information with respect to Criminal Proceedings. First, the way the Media disseminate information sometimes can be very different from how it is or how it should be. What we experience today is Media Trial. And the way facts are being presented to the public sometimes differ from the way facts are being presented on paper before a Judge. That’s one of the areas we need to look into. So, there are huge distinctions between Court processes and newspaper or information at the media house.
Another thing again is when it comes to Criminal Adjudication there are Principles. Those principles go beyond emotions, personal opinion, disposition, and the way you see information. And that is why Law is not common sense. Law is hinged on principles and enacted laws. And when it comes to Criminal Adjudication, it’s in two folds. We have the Substantive Law – which is the Criminal Code Law and every other laws that prescribe the offenses and we have the Procedural Law – which is used by the Court to apply the Substantive Law. For some time now, the Procedural Law have not been doing efficiently what the Justice system is required. And that is why some years back they resorted to what we call Administration of Criminal Justice Act and various states replicated same by enacting their Laws to have the Administration of Criminal Justice Law as well and there were lots of improvement in the system.
First of all, it prescribed time limit for the adjudication of criminal matters. And it didn’t just prescribe time limit, it also corrected a lot of abnormalities that hindered the efficiency and effective dissemination of justice.
If you look at the Criminal Adjudication you will discover that crimes are being presented to the public in a manner that requires Emotional Expected Outcome. But you have forgotten that every accused person is entitled to presumption of innocence and sometimes the reason why cases delay could even be at the instance of the Prosecutors. The same people that initiated the arrest, the same people that charged the person to Court may be the same people delaying cases in Court. They keep bringing amendments, for instance, in the case of Nnamdi Kalu where they amended their charges countless and multiple times and each time you amend you give the Defence another opportunity to put himself together to be able to defend the accused person. Sometimes if there are delays, those delays could be as a result of the delay at the instance of the Prosecution, it could emanate from the Defendant who bring in so many excuses, countless adjournments but trust me I can assure you that criminal matters have a different approach now. Even in criminal appeal there is a time limit that is given to Judges to ensure that the case is dispensed with. Because custody is an issue, Someone cannot be in custody and you keep accommodating adjournment that’s why in criminal matters you can’t take an adjournment that exceeds two weeks. With the advent of the Criminal Justice Law lengthy adjournment is being cautioned.
Today the Criminal Justice system is wired in a way that if all the parties including the Prosecution is up and doing there would be no way you have miscarriage or delay in having Justice being mete out. If you look at the Buhari’s government I don’t think any high profile cases that afforded them conviction are more than three. Till now Nnamdi Kalu have not been convicted, even if he jumped bail.
On Justice Administration which have to see that there’s no delay in Criminal Justice, yet we keep having such experiences where Justice is delayed and of course you have lots of cases and people standing trial for several years, yet can’t find justice.
If you look at those people that have been standing trial for several years you discover that there are political undertone. Because if you look at those conventional cases in Court, they would start their cases today and after some time you would hear that the person has been convicted or discharged and acquitted as the case may be. But the ones that are very popular have political undertone. It could be security issues – having the defendant being produced in Court that could be a factor; it could be other factors like change of Counsel. Sometimes when the government is prosecuting at the Ministry of Justice level, they begin to see the weight of the Defence Counsel, you know most high profile cases they would hire a SAN to come and defend; sometimes some persons get intimidated even if they would not admit.
Don’t you see that as a crooked way by the prosecutors or by the government to delay justice where you have to change Counsel or re-apply for the amendment of charges? Don’t you think it’s a tactical delay?
The Court cannot stop you from changing Counsel. Even if you want to change Counsels multiple times the Judge would not stop you. Certainly, these are factors that could lead to delays. Change of Counsel, amendment of charges, countless adjournments, inability to reproduce the suspect in Court, it could also be factors like public holiday or the Court can be indisposed. When we talk about the Court it’s a human being. The Court can be indisposed, the Judge can be sick, his life may even be threatened and you will see him trying to disassociate himself from the case.
There are lots of factors, it’s not just a one way thing, its multiple ways traffic where many persons are contributing. Even if we’re being guided by a law that says Adjournment should not exceed two weeks, as a matter of fact, in Criminal law there’s what we call Accelerated Hearing. I have a case that was given accelerated hearing since 2013, some of the defendants have not even entered the witness box. The Judge granted accelerated hearing since 2013 that is more than 10 years ago now. Let me tell you how those cases suffered for 10 years, a case that started 2003, that’s 20 years now. Many Magistrates have retired in the case. And you know when a Judge or a Magistrate retires, the case starts afresh. But if anything happens to a Lawyer you continue from where the Lawyer stopped.
Once anything happens to a Judge in the course of the adjudication of the case that case starts afresh. That’s one of the delays too. So when you see a Judge who has two years to retire and he’s handling a high profile criminal case when you know there are bound to be loopholes for lengthy adjournments or excuses or when you know there is bound to be series of amendments and other factors and the Judge has just two years to retire, know that that case must start afresh. So, why assign such case to the Judge? Most times the Federal Government, state government and every other security agencies charge matters to court without proper investigation. At the long run they discover that they have not investigated even when the matter is already in court, they start doing investigation. What happens to the case? They have to amend their charge and bring in additional evidence.
These are lacunas
Not necessarily lacuna but factors that delay speedy dispensation of Criminal justice.
Now compare our Justice system and what can be obtained in England or what can be obtained in America where dispensation of justice is as speedy as a bullet train.
First, if you want to compare our justice system with that in the UK, in UK there is nothing like media trial. Media trial results to anticipation and high expectation. Sometimes it even pre-empts. When a Judge gets home and puts on Channels TV and he begins to see a lot of things, the Judge would be forced to exercise precautionary measures because they are human beings.But in UK they don’t do media trial, in short, when a case is in court you’re prohibited from media trial. But in Nigeria, when a matter is in Court that is when a Lawyer grants interview on a matter that is in Court but jealously guard some issues and talks on the peripheral level. And unconsciously too you see them delving into such sensitive areas even if they can defend it. So the Justice system in UK, because there are no anticipations, no enthusiasm and because everybody is busy there are less issues in delivering justice. It’s not like theirs is better because we copied ours from them but theirs is better. For instance when you develop interest in Highlander car you start seeing Highlander. If you have interest in black Highlander you would notice it’s plenty in town. You just start noticing it in every interval. But before you develop the interest you hardly find black Highlander. That’s what UK does. Because there are no media trials hence, the issue of anticipation and expectation are being watered down.
The issue of media trial yo talkef about are becoming a bane in our justice system. The Legislators are not doing anything towards that. There could be a law guiding prejudice and such laws have not been applied. In high profile cases you find a SAN coming to the media to discuss about that. So, what do you think is the best approach to stop or curtail as the case may be media trial?
There is already an existing law that limits you from talking about a case that is already in Court even at the peripheral level. Once a matter has been subjected to Judicial Adjudication there’s no need talking about it. But because there’s no frame work that cautions it there’s nothing you can do. There’s no constitutional provision or enactment that is been put in place to caution that kind of practice. At this point there’s nothing you can do. Trying to stop them is infringing on their freedom of expression.
Let’s talk about Court Orders which is also part of delays in the Justice system where Mr A would go to Kotangora to obtain court order and injunction on a matter that happened in Calabar. Another one will go to Sokoto or Maiduguri to obtain Retrained Order over a matter in Anambra. Isn’t Court Order and Counter Court Orders ways of delay in Justice dispensation?
It’s a very big default for want of practice direction because this is what practice direction can cure. For instance, all the Federal High Courts in every states are under the Chief Judge of the Federal High Court in Abuja. All the State High Courts are under the Chief Judge,this is what practice direction can stop this time that thing has been cautioned. If you noticed it didn’t play out so much in this dispensation because the various Chief Judges took it upon themselves to ensure that practice direction becomes very effective and as such any political matter well filed must be assigned, even if it’s filed from another Division, it must be sent to the Headquarters. It’s just for them to be firm to avoid decisions from Court of coordinate jurisdiction. You see a Federal High Court in Maiduguri countering an order from Calabar.
Another thing again is you look at the subject matter, for instance, matrimonial cases can be filed In any court in Nigeria. It’s one jurisdiction. If you marry in Delta you can go to Sokoto to file, nobody stops you. Then, any infringement of fundamental rights in any state you can file in Abuja. All you just need to do is join the necessary parties like the Inspector General of Police and he gives you jurisdiction to file in Abuja for something that happened in Zamfara State. You see the technicalities; it’s helping and also spoiling things.
Technicality has been condemned by the preservers of authority where it is said that it amounts to killing justice on the author of technicality. So you don’t kill justice because of technicality but at the same time you can still have a way through technicality. Technicalities are enabled by law. It could be loopholes, it could be lacuna, it could be interpretation. Law is all about interpretation and when you come to interpretation, there’s what we call cannon of interpretation, literary rule, mischief and there’s what we call golden rule. I’ve said it before and I will say it again when a Judge sees a lacuna in any given provision of the law, what the Judge is duty bound is to construe statute that would do better justice because legislation carries on his face what we call characteristics human imperfect quality. These legislations are being made by illiterates most times. And there’s bound to be lacunas.
The problem is not even making laws the problem is interpreting law. That’s why it requires more professional acumen when it comes to interpretation. Interpretation is the nitigrity or bulk of law,It’s not making law. The ingredient or colour of law is based on interpretation. And that’s why it requires professional expertise. Anybody can make law even a school certificate holder can sit in his chamber and make law. But that law can be given a different interpretation because the Judge would say this is not the original intention of the Legislator, looking at the theories of law, its jurisprudence and the cannon of interpretation. So interpretation is the main nitigrity, the bulk of law and judicial precedence takes pre-eminence over legislative enactment.
Drawing reference from what you have just said that interpretation of the law is the bulk of law making, looking at the just concluded 2023 Presidential elections, we hear you must get 25% votes in 24 states and the FCT to become the winner of the Presidential election. Can you just explain what it really meant by 24 states and the FCT? For instance, Mike Ozekhome SAN said, “invite 24 persons plus Paul making it 25 persons and you invite 25 persons without Paul, have you invited the complete persons required? Can you tell us what we should know about that statement?
This issue of 24 states and FCT has been decided by the Court before now. I think it was in 2003 between Buhari and Jonathan. It has been decided when the issue came up but one thing you need to understand is that the Supreme Court would always tell you that ‘we’re infallible because we’re final’. And some other times they would tell you that ‘we are not infallible’. They will give you reasons why they decided what they decided as at that time and why they now differ. As a matter of fact, even when the Supreme Court has given a Judgment they can still do what we call Judicial review to review their judgment and look at it again, giving it a second eye. So, when it comes to interpretation it can never come to an end even when it has been interpreted. These are privileged information that I want to sharpen your horizon.
When it comes to interpretation you will be surprised that the interpretation that would be given to FCT which is very glaring looking at the provision of the Electoral Act and the Constitution, FCT is a State. I agree with my Learned SAN but who knows what may paly out? That’s why anywhere they say this is how the interpretation should be we start following that principle. We leave the one we know before and follow that new sequence but only God knows where they would base their interpretation because every interpretation have basis. You must give reasons why you arrived at where you arrived. In my own opinion and looking at the provisions of the Constitution FCT is a State for the purpose of the Election. FCT is not a state pa say but for the purpose of election. If you look at the interpretation as enshrine in that provision of the law in the Electoral Act and in the Constitution FCT is a State.
People talked about the appointment of the Chief Judge of the Federation by the Executive. People argued that why can’t it independent where the Bar and the Bench elect, select or appoint Chief Judges, that will enabl proper dispensation of Justice. They feel allowing the Executive to do that means sometimes trying to see how to compensate your master. What’s your opinion about that?
That’s a very dicey area. If I may come in what they would tell you is that the word appointment does not mean selection. You’re being appointed means you are in a position to ratify not that you pick them from the cradle. These people are being recommended by the National Judicial Council (NJC) and after being appointed, for the Chief Judge it must be confirmed by the Senate. After confirmation comes appointment. The person must be recommended by NJC, confirmed by the Senate and appointed by the Executive.
We also have a situation whereby the body of Bar and Bench by nomination, like you said, are also being influenced by the Executive.
The Executive has been wired to have the yam and the cutlass. When you have all these that why it’s called power. The reason why it’s called power is because you have the gun and you have the resources, that’s why you are in power…
It’s affecting the dispensation of justice that I’m talking about.
How can a man have yam and the knife and you are saying he should be supervised? Can you supervise a man that has the gun and resources? That’s they are saying if the Judiciary can have financial autonomy it would go a long way to caution these excesses. Definitely the Executive arm influences the Judiciary including the Legislative arm. That’s why a Governor can decide to unseat a Speaker. That’s why the President can use an Experte Order influence a rubber stamp order to unseat a sitting Chief Justice (CJ). That’s why under Buhari’s government a sitting CJ entered the dock, a Senate President entered the dock. They all stood criminal trial even when they were still in power. How can they supervise one another?
What’s the difference between an Executive Order and a Constitution?
Executive Order is an enablement that has been given to the President to act. Because sometimes before you can get an Order from the Court, it has to go through the judicial process to get an order. But Executive Order is an enablement by law that empowers the President or the Executive Administrator to act based on circumstances. But that power is subject to judicial review, that power is subject to the law because the supremacy of the Constitution is that the Constitution is supreme and it shall gain supremacy over any law. And any law that is inconsistent with the provision of the constitution shall be rendered null and void to the extent of its inconsistency. The Constitution is not a law, it’s a grand norm, its supreme. It takes precedence over the Act of the National Assembly. The Act of the National Assembly takes precedence over the law of the various states. The law of the various states takes precedence over the law of the local government bylaw and it is these laws that gives them the enablement to make policies. You cannot make policy without a law. There must be a law that enables the policy. Every policy is resting on the provision of the law. When you make any policy that is inconsistent with the provision of the law that policy would be set aside if you challenge it. Like this naira redesign policy, you saw the way it was challenged by the APC governors. There’s no law that empowers the naira redesign in the way and manner they enforced it. But you can do naira redesign and give ample time. Look at Section 20 of the CBN Act you will be properly guided. And because the enforcement differed from the provision of the law it was set aside. So that policy is questionable.
The Federal laws supersedes State Governments, why is it that the State Governments are dragging Local Government to collect their money?
It’s a Constitutional problem because the law that regulates Local Government is the law of the state. The Local Government has a law of the State House of Assembly. It alters any bylaw. There is no law that gives the local government autonomy. The law that gave the local government autonomy is true but its at the discretion of the Governor. Just like Section 1 of the Land Use Act that says every land must be held in trust by the Governor. And this Land Use Act of 1979 cannot be easily amended. You have to go through very rigorous processes to amend it. That’s why we’re still using the Land use Act of 1979.
The President signed an Executive Order granting Judicial Autonomy. Is it in force?
That’s why I said any law that says “you are free to go but this man will open the door for you”, has that law done justice? It’s a Constitutional problem. That is also why I said our Constitution is a fraud. Most times when you look at our Constitution you jump at having your way but when you look at the Clauses attached to it you discover that the enforcement is fraud. There’s a law that says Judicial Autonomy but the same Judicial Autonomy the Governors have to implement. What if the Governor refused to implement? You say Local Government Autonomy but Governors should implement. If the Governor refuse to implement are they going to contempt him? What if the Governor has immunity? That was why when Buhari made a national broadcast a sitting Governor made a parallel national broadcast again to counter what the Commander-in-Chief have done and that’s treasonable and that’s what Nnamdi Kalu is suffering today. When you disobey a court order it is contempt of Court. But contempt of court are being enforced in a way and manner wherein the person who disobeyed the court order is being brought to court. Via 48 you are called to come and show cause, then from 49 send him to prison. We call it committal proceedings. When you disobey court order they send you to prison. But how come the Federal Government have been disobeying court order and Buhari has not been sent to prison or Governors disobeying court orders and not sent to prison. It’s because of immunity. That’s why everything borders on our Constitution. The problem is not putting measures on ground to cure these abnormalities but having cured the abnormality (infection) and there are obstacles on its way out, won’t there be abnormalities again? For instance, you are curing someone with infection inside this room and having cured him of his infection here he goes through an infectious door out, while going out won’t he be infected again at the door? So the Constitution is fraud in itself. We can go on and on according to Peter Obi to analyse the defaults of the Constitution. The Constitution has to correct all these errors. Once these errors are corrected, things would start falling in place.