Law News
How to make anti-graft war more effective

The rate at which the Economic and Financial Crimes Commission is closing its cases in courts these days is enough to worry any Nigerian who is interested in the war against graft.

In fact, foreigners who want to do business are worried at the level of graft in the country and the inability of the EFCC and the Independent Corrupt Practices and other related offences Commission to secure reasonable conviction in court.

The EFCC and the ICPC, as extensions of the police formation, are expectedly under Section 4 of the Police Act and under their enabling laws entrusted with the statutory duties of detection, investigations and prosecution of graft-related offences. The EFCC enabling laws, particularly sections 12 and 13, emphasise the functions of the various specialised units of the commission, and these include general and assets investigation; legal and prosecution; research; administration and training.

Furthermore, the commission’s special units, especially its general and assets investigation unit, are further charged with the duty of prevention and detection of offences that violate the EFCC Act, whilst the legal and prosecution unit are responsible for the prosecution of offenders and giving legal advice and assistance to investigators.

Hence, a careful perusal of the EFCC Act will show the importance, statutorily, placed on detection, investigation and prosecution as functions of the commission.

Of the three functions enumerated above, the most significant are detection and investigation. And this is expectedly so, since there cannot be investigation or prosecution unless there is a comprehensive detection of crime.

Therefore, the role(s) of detection of crime to warrant an effective investigation and then prosecution cannot be over-emphasised in criminal justice administration. In fact, the success of any effective prosecution is inextricably tied to good detection and investigation. In the chain of detection-investigation-prosecution, one cannot overlook the need for good investigation and the need to tie those who have committed the offence of graft with witnesses that would come out of the investigation. Hence, most cases, if not 90 per cent of the criminal cases bothering on the crime of graft, are lost in court due to shoddy investigations.

And even in other cases, where detection and investigation (with all available witnesses) are almost perfect, the trial could still be hampered by incompetent prosecution. This is an area where a lot of work is required to be done. Hence the roles of our anti-graft agencies’ prosecutorial team, starting with the investigating police officers, witnesses and their lawyers, must be subjected to scrutiny, in the interest of the public, since these officers are being paid from the public coffers.

Anti-graft lawyers

The anti-graft agencies must do away with lawyers who are more interested in collecting huge fees without showing adequate interest or seriousness towards getting conviction in criminal trials. There are lawyers on the payroll of the EFCC and the ICPC who are only after the collection of “fat briefs” rather securing conviction in criminal trials. To merit his pay, a prosecutor for the anti-graft agency should be able to convict an accused on 10 counts where such an accused had been arraigned on between 48 and 50 counts. Failing to achieve this, unless there is a sinister motive, the question should not arise on whether to dismiss or still retain such a prosecutor in the services of the anti-graft agency.

Surgical amendment of section 36 of the 1999 constitution

Since defence lawyers in the country have now perfected the art moving judges to admit accused persons, who are facing charges of graft, to bail, with the accused persons walking freely or some even winning election into public offices while their criminal trial drag for years, there is the need for a review of Section 36 of the constitution. The provision of this section of the constitution needs to be reviewed if the judiciary is to be able to prevent defendants facing graft charges from being reintroduced into public office to continue looting the national treasury. No society craving for social-economic justice can ever grow where fraudulent lifestyle is brazenly embraced.

Section 36 of the constitution should be amended such that all graft-related offences are categorised as strict liability offences. By this approach in criminal law jurisprudence, the onus of proof is reversed. Instead of the state proving the guilt of the accused person beyond the often-mouthed “reasonable doubt”, it will be for the accused person to prove his own innocence. For example, an accused person on a salary grade of Level 15 or less should be made to prove that about N2bn in his bank account, houses and cars scattered in Lagos, Abuja and in his village are proceeds of a legitimate venture.

The suggested amendment of Section 36(5) of the constitution, which contemplates that an accused is innocent until proven guilty, should be reviewed, such that the accused is charged with the duty of proving his own innocence beyond reasonable doubts after being charged with a criminal offence.

Furthermore, to fully benefit from the suggested amendment, sections 131 to 135 of the Evidence Act,2011, which put the onus of proof on those asserting, should now be made to exclude graft offences in which case, the suspect will be asked to explain his source of “overnight wealth”.

It will also go a long way in curbing graft, if all graft-related offences are categorised as capital offences, where the accused has no right to bail but can only be released on bail at the discretion of the trial judge. With this approach, all accused persons, who upon being granted bail resort to all forms of technicalities to delay trial, will now be forced to “unilaterally” and without “coercion” seek “accelerated” or “fast-tracked” trial as their liberty would be at stake. Nothing in the suggested amendment has violated the concept of the fundamental human rights (which itself is not absolute) as some may want to argue, after all, public funds must also be protected from heartless looters. And Nigeria may as well consider attaching capital punishment to the offence of graft as it is being done in some advanced clime, where apart from graft cases being treated as “capital” in nature, they also carry death penalty upon conviction.

To actualise the various suggestions herein made, President Muhammadu Buhari, in his bid to fight corruption within the ambit of the rule of law, must urgently sponsor a bill to amend Section 36 of the 1999, Section 135 of the Evidence Act, 2011, and the relevant provisions of our penal laws. The states, which have already adopted the Administration of Criminal Justice Laws must effect similar amendment in their laws relating to the onus of proof in graft-related cases. Anything short of this suggested recommendation would amount to a cosmetic fight against corruption.

Just as Nigerians are calling for the total overhauling of the managerial staff of the EFCC and the ICPC, the same cleansing must be extended to the prosecutorial department of the two anti-graft bodies.

Agbaje, a legal practitioner, wrote from Lagos

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