Femi Falana

As soon as it became clear that the federal government had been totally misled by the NBA the directive was immediately withdrawn. Notwithstanding the commendable decision of the Government to return to the status quo the NBA leadership turned round to incite the Attorney-General to take over the prosecution of all cases which had been investigated by the EFCC. But the attempt to take over the cases from the EFCC was dropped when it was revealed in the media that the Attorney-General was, before his appointment part of the defence teams of some of the two of the politically exposed persons. At that juncture, the NBA leadership demanded for the involvement of Senior Advocates of Nigeria in the prosecution of corruption cases. Based on such pressures the EFCC actually firmed out a number of corruption cases to some members of the inner bar in 2008. While some of the senior counsel returned the case files assigned to them on the ground that the fees were inadequate the EFCC was compelled to withdraw many others as they were not pursued with the vigour and urgency required in the prosecution of corruption cases.

At the same time the NBA leadership accused the EFCC of acting ultra vires by usurping the powers of the Attorney-General in collaborating with the Metropolitan Police in the investigation of Chief James Ibori, ex-governor of Delta state. When Chief Ibori was eventually charged with money laundering by the EFCC at the federal high court, Awokulehin J. (as he then was) upheld the preliminary objections of the defence team led by Messrs J. B. Daudu SAN and Austin Aleghe SAN and struck out the 170-count charge. Even though he was given a clean bill of health by the federal high court Chief Ibori was later convicted and jailed by a British court on the basis of the same evidence. Despite the fact that the handling of the case exposed the Nigerian judiciary to gargantuan embarrassment the NBA never challenged senior lawyers who have continued to frustrate the prosecution of corruption cases through frivolous objections, interlocutory appeals and stay of appeals as well as orders of interlocutory or perpetual injunctions in favour of treasury looters.

In advanced capitalist societies, lawyers are duty bound to ensure that the law is higher than everyone, no matter how highly placed. But in a peripheral capitalist society like Nigeria, lawyers have placed rich and powerful individuals above the law. In recent time, many senior lawyers have shown proclivity for manipulating the criminal justice system to detriment of the society by lending their expertise to clients outside the bounds of law in contravention of paragraph 15 (2) of the Rules of Professional Conduct in the Legal Professional which stipulates that “In his representation of his client, a lawyer shall keep strictly within the law notwithstanding any contrary instruction by his client and if the client insists on a breach of the law the lawyer shall withdraw his service.”

The prosecutorial powers of the State
Having regard to sections 174 and 211 of the 1999 Constitution it is indisputable that the Attorney-General of the Federation and the State Attorneys-General are empowered to initiate, take over or discontinue any pending criminal proceeding. The controversy over the power of statutory bodies clothed with prosecutorial powers to investigate and prosecute criminal cases has been settled by the Supreme Court in Federal Republic of Nigeria v. Osahon (supra) where Pats-Acholonu JSC (of blessed memory) stated that “The implication of the intendment of section 174(1) of aforesaid of the Constitution is that the office of the Attorney-General does not have the monopoly of prosecution though it has the power to take over any case in any court and decide whether to go on with it or not.”

In Nigeria, the federal and state ministries of justice prosecute cases which have been investigated by the police. But in the prosecution of such cases it is always a herculean task to secure the attendance of police prosecutors as they may have been transferred when they are required to give evidence in criminal courts. Owing to the difficulty in ensuring the attendance of investigating police officers in trial courts many serious cases are usually struck out for want of diligent prosecution. Based on the  frustrations encountered by the various ministries of justice the parliament decided to warehouse the investigation and prosecution departments  of several government agencies including the EFCC. Since the EFCC has secured more convictions than the other agencies which combine investigative and prosecutorial powers the campaign to have it divested of prosecutorial powers is essentially designed to weaken it.

Otherwise the campaign would have been extended to other agencies clothed with powers to investigate and prosecute criminal cases like the Independent Corrupt Practices and other Related Offences Commission, Nigeria Police Force, the Armed Forces, Economic and Financial Crimes Commission, National Food and Drugs Administration Commission, National Agency for the Prohibition of Trafficking in Persons, Nigeria Customs Service, Federal Road Safety Commission, National Deposit Insurance Corporation and Nigeria Drug Law Enforcement Agency. The renewed campaign against the EFCC is not unconnected with its temerity to charge some senior counsel to court for corrupt practices. In a demonstration of solidarity the NBA has mobilized scores of lawyers to defend the accused persons .

However, section 106 of the Administration of Criminal Justice Act, 2015 has stripped lay police officers of the power to prosecute criminal cases in all courts in Nigeria. According to the Attorney-General of the Federation Malami SAN, the Federal Ministry of Justice has received about 8,000 case files from the Nigeria Police Force. Apart from enhancing the quality of justice at the lower courts it will lead to the employment of hundreds of lawyers or firming out of thousands of criminal cases to private legal practitioners. It is hoped that the NBA leadership will ensure that cases in all area and magistrate courts throughout the country are prosecuted by lawyers in accordance with the provisions of ACJA. However, it ought to be noted that the ACJA has not stripped the Nigeria Police Force of prosecutorial powers as legal practitioners in its legal department are empowered to prosecute criminal cases on behalf of the Attorney-General of the Federation.

Executive and parliamentary supervision of the EFCC
Since the combination of investigative and prosecutorial powers by several federal agencies has reduced delay in the prosecution of criminal cases the EFCC should not be stripped of the power to prosecute cases of corruption and other economic crimes in any manner whatsoever. The fear that the prosecutorial powers of the EFCC may be abused is completely groundless. It is on record that out of the over 1000 convictions secured so far by the EFCC none has been questioned or set aside on ground of malicious prosecution. But despite the success of the EFCC it has its shortcomings. On many occasions, it has been indicted by courts for infringing on the fundamental rights of suspects to personal liberty and fair hearing.