The call for political reforms has continue to gain momentum across the country such that former Vice President, Atiku Abubakar has joined the debate in favour of the proponents. While the Federal Government seems not to be much interested in political restructuring, it has constituted a constitutional and electoral reform committee to re-jig the current electoral process to meet global standards and address the needs of the electorate. Adekunbo Okeaya-Inneh, a Senior Advocate of Nigeria (SAN), in this interview with OLUDARE RICHARDS, insists that the country is in strong need of not just political restructuring, but judicial reforms, especially in the area of criminal prosecutions.
Okeaya-Inneh is not comfortable with what he described as politicisation of some prosecutions. To forestall such development, he is of the view that it is time to revisit the enabling statutes that set up prosecutorial agencies. For him, sensational approach to investigations into the alleged corruption in the judicial sector will not augur well for the system.
On the alleged fundamental human rights violation accusations against the government in a number of cases in recent times, he said: “I think the criminal justice system needs reform; root and branch reform, right from the beginning. I think it is counter-productive to have multi-prosecutorial agencies. It is also counter-productive to have agencies that investigate and prosecute at the same time because it leads to conflicts. Constitutionally, the person responsible for prosecutions is the Director of Public Prosecution (DPP). Problems such as politicization can arise in some of these prosecutions, which is unfortunate. It might not be deliberate but it is as a result of the way these organizations are set up.
There are constitutional and human rights abuses at all levels. The judiciary also has problems because simple applications like bail have become such a difficult application to get in court. An example is this: If you are charged say in the UK or in America, bail is almost certain. There are principles and these principles are applied properly. A few days ago, terrorists were arrested in Paris and two or three were released immediately on administrative bail. I really cannot see what can be more serious than terrorism, treasonable felony etcetera. If you can grant administrative bail to such alleged offenders, one wonders why when in our own system, people are brought to court, the prosecution says, “we need time to respond to a bail application”.
“Now, we must understand that whenever a criminal trial in taking place, the liberty of an individual is at stake. The process of bail should not be a process of going to prison because you have not even started the trial; you don’t know if the person is guilty or what is going to happen at the end of the day but the courts appear to have, in my respectful view, abdicated their duties by not putting down their foot on the principles applicable to bail. So, when one applies for bail, the court adjourns for two, three weeks to give a ruling on a bail application? That is an attack on the fundamental rights provision to the constitution. These issues here are human rights
abuses indirectly; the accused might eventually get bail, but that’s not the issue. The issue is that if you postpone it, you have already more or less denied that person that right. This is why I say there need to be a reappraisal of what we are doing now. I don’t think we are doing this right at all.”
There has always been debate about the abuse of remind orders. Expressing views on the constitutionality of such practice, Okeaya-Inneh said: “There are procedural rules in both criminal and civil law. If you follow these procedural rules properly, there shouldn’t be any problem. This is why I say we have to go back and look at the enabling statutes setting up these organizations. You cannot have agencies that are investigating and prosecuting at the same time; there are conflicts that would arise. You also must have a system where the DPP is the ultimate person responsible for the prosecution of State Criminal cases. The office for the DPP doesn’t have to be one person. What this does is that it allows for a cleansing system, so when an organization investigates, that organization sends their findings to the office of the DPP who goes through the files and determines whether or not, a case can go to trial.
The AGF is the chief legal officer and is responsible for both civil and more so criminal matters. But the DPP is principally the person that should determine whether or not, a matter should go to trial. When I say DPP, this is the institution and not one person. There is a proof-laden procedure. So, we will have a situation where EFCC or ICPC will says, ‘we’ve done this investigation, you determine whether or not this matter can go to court’. I think the system that we operate now does not allow for efficiency and transparency in the process of prosecution.”
The senior advocate maintained that law enforcement agencies must not be involved in prosecution of suspects because of conflict of interest that may arise. “Another body should determine, whether or not, the evidence they have is enough. In the US, I don’t know if the Federal Bureau of Investigations (FBI) or the Central Intelligence Agency (CIA) prosecutes. In the UK, I don’t know if the MI5 OR the MI6 prosecutes. It is the Crown Prosecution Service (CPS) in Britain that prosecutes. So, all investigations are carries out and sent to that office and the office determines prosecution.
Let us not forget that tax payer’s money is involved here. For example, one of these prosecutorial agencies, at one point sometime ago, approached a Counsel and said they want him to prosecute. The Counsel looked at the proof of evidence and said, “this case cannot go to trial, there is no prima facie case”. What that means is that ‘there is no ground for us to proceed’. This agency took that case and gave it to another Counsel. They went to court and spent seven years and the accused was discharged and acquitted. Now, seven years of tax payer’s money was spent on a criminal matter that clearly had no merit. If you pay the lawyer one or N10 million, it is tax payer’s money, and that is a waste. In other parts of the world, the DPP would resign. It has happened in the UK and in other parts of the world. It is a matter of doing things right. One is not criticizing as such but that there is a need for reappraisal and reform of all our institutions dealing with criminal justice in the country, both at the Federal and State level,” he declared.
On the issue of the prosecution of Judges, here is what the lawyer thinks: “ It is unfortunate. One understands why people are shocked because the judiciary, in my view being the most important arm of government because it is the judiciary that balances out the powers of the executive and the legislature, but we must realize that as a nation, we have serious problems. We must also realize that our institutions are not staffed by people from other parts of the world. So, it would be putting it too high to expect members of the judiciary to be squeaky clean, including members of the legislature and the executive. These same people come from the same society. Having said that, I think the approach to the investigation into corruption of the judiciary should be more constructive and should take into consideration the fact that you are dealing with a very important institution of government. And when you are doing that, you must recognize the enormity and the consequences of what would happen if things are not done properly.
Your question might be, “oh, are you saying that because they are Judges, they should not be arrested, investigated or stand trial?” No one is above the law, but I think the sensationalization of this outweighs the sustainability of the process. It is sensational to have a Supreme Court Judge in the dock. Whether that would in the short and the long term deal with the very serious problem of corruption, time will tell. I personally believe in respectful institutions as a matter of convention. In law, you have constitutions, statutes and you have conventions. Conventions are not written anywhere; they are just part of what we do. I think the long-term consequences of the sensational way the authorities have gone about the issue of corruption in the judiciary, may not have a positive result.”
The learned silk also spoke about the role of arbitration in dispute resolutions. According to him, Arbitration has its merits and demerits. Arbitration, he said, is a privatization of the dispute resolution process. “Normally, the dispute resolution process is a public thing, which means you go to court.
The reason why you may go to arbitration is because you may think it could be faster and cheaper with very few technicalities. But my experience is that it is not cheaper, it is not necessarily faster and you may not have the same procedural technicalities you face in court. I think it works pretty much I commercial cases.There is a lot of money involved in commercial cases and parties need to settle. But in other cases, like in criminal matters, you cannot use arbitration. The closest thing to arbitration in criminal matters is plea bargain. Arbitration can work because both parties agree to abide by the decision of the arbitrators and there is an Arbitration Act which legalizes it, which means, you cannot go to court to re-litigate the subject matter of the arbitration. What you can go to court for are procedural things like issue with the number of arbitrators, or a breach. It doesn’t necessarily take away the jurisdiction of the normal court,” he stated.