Chief EmekaNgige, a Senior Advocate of Nigeria, was called to the Nigerian Bar in 1989. He began legal practice in the Attorney-General’s Chambers in Kano State in 1990 and thereafter, worked with Legal Resources Consortium (Solicitors & Advocates) in Lagos from 1991 to 1992 before establishing the firm, Emeka Ngige & Co. Ngige speaks with LAW EDITOR, Adam Adedimeji at his Lagos’ Ikenga Chambers on the recent conviction of a former Director of Police Pension Board described by many as light sentence. He also speaks on the long absence of three state governors on health ground; judicial appointments and the slow pace of resolving cases in courts, among other legal issues. Excerpts.
An unprecedented outrage trailed the two-years sentence with an option of fine (750, 000) given to the convicted formal Director of Police Pension Board, John Yakubu Yusuf over his confession to stealing 23 billion of the police fund. Do you think people’s outrage is justified?
Well yes I think the outrage is justified because the amount involved to use the language of Oby Ezekwesili and Mr. President’s spokesman, Dr. Ruben Abati and others, the amount involves is very humongous. I think what has happened in this case is one of the indiscipline of a failing state. Nigeria is heading to a position of a failed state. So what has happened is part of the indiscipline or signal of bad sign in the polity. Because where there is a systemic failure in everything, in the executive, legislature and in the judiciary and in all process of life. So a situation where somebody conspire with others to steal to the tone of 3 billon shows that something strange is about to happen.
And when he took the fresh pleas, he pleaded guilty and there was surprise as to the punishment given though there is to be forfeiture of properties. There was anger from the people because there was supposed to be a jail term. But EFCC was taken unawares when instead of taken a jail term; he was also given an option to a pay fine of a paltry sum of N750, 000. 00. So this is part of the rot system and EFCC should be blamed. I am not blaming the judge because this is the third time to the best of my knowledge that EFCC is being outweighed by accuse persons having plea bargain with then. If you recall EFCC was taken by surprise when a former Governor of Edo state, Lucky Igbinedion who made a plea bargaining with them was given N1.5m fine out of almost N3bn, or so that was found as stolen fund of the state. He paid the money involved immediately and went home immediately. EFCC reacted angrily, but that was how the case ended. And then of second time to my recollecting, is that of Cecilia Ibru case. She surrendered properties that were illegitimately acquired from the proceeds of crime and then she had a sentence of 1-year imprisonment with effect from the day of arrest which she enjoyed in a hospital that is more hospitable than a Sheraton or Nicon Hotel. In the end, we are now hearing that there are other properties that EFCC did not know about which she is now controlling. So you can see that EFCC is equally outweighted in Cecilia Ibru case.
This is the third time and so I thought this one ought not to have happened. What should happen is that EFCC needs to have outline guidelines for entering into plea bargaining with the accuse persons. They should have template that must have the point that they must work on and one of the areas that they ought to have is on issue of the punishment and the issue of restitution. These are the critical areas. Restitution in the sense that if the accuse person is found to have stolen for example N5bn and out of N5bn that was traced to him, he had acquired properties that may be in the region of N200m or N300m, the arrangement under the pleas bargain should be that of properties should be forfeited (1) If the properties are worth N200m then out of the N5bn he stole, he should return N4.8bn. that is restitution so that for instance in this case, the poor pensioners who died every day, you know many of them died or give up while waiting for verification in offices of board pension and task forces. They will have restitution and they would have their money back, there families will collect arrears, out of the one that have been stolen. So if EFCC had made it plain that anyone found guilty will return that amount or so traced to him with the additional fine of not less than 30 to 40 per cent of the amount involved in the offence.
For example, in N5bn, that means 30% of that will be about N250m to be paid as fine, so in that situation, nobody will raise an eye brow. but EFCC went ahead by having what they call understanding with the accused person and with the judge, forgetting that you don’t do understanding with a criminal. a criminal will remain a criminal, they will outweigh you on issue of understanding, you should have an agreement in writing that you shall refund this amount, you shall forfeit that and you shall pay this sum or fine of this. Just like in the case of civil cases, where you have terms of settlement because terms of settlement in civil cases is almost the same thing as plea bargaining in criminal matters. So when you now handover the terms of the plea bargain to the judge, it will now be pronounced as judgment of the court so you will now be taken unaware by the pronouncement of the judge.
There is general consensus among Nigerians that there is something fundamentally wrong in our laws. Cheating during UTME, WAEC or other general examinations attracts 21 years jail term. They wonder how a stealing of a whopping 23 billion can only attract 2 years jail term with an option of fine?
Well, our own is different because there is no law that deals holistically with plea bargaining. we can infer plea bargaining in many of the legislation for instance the law called Failed Bank Act, Recovery of Properties Law, etc. in that failed bank law there is position there that provide that where an accused person refund or returns the amount involved in the offence, the judge or court may refrain on giving him a jail term so that is like a plea bargaining. You return the money and you don’t go to jail, then you will now be given an option of fine in addition to what you have returned.
So there is no such law in the criminal code, it is only in that new law like Failed Bank Law, or in EFCC Act or ICPC Act that you may find such issues. In America, there are adequate provisions in their law for plea bargaining. So that is what I believe National Assembly should look into. I recall that former Chief Justice of Nigeria, Justice Atahiru Musdapha once condemned the idea of plea bargaining saying that it is prone to corruption, prone to abuse. Yes, it is because they are not in express position to that law that guided the stake holders, the ministry of Justice on how to apply it.
Going by your submission, do you agree with those who said that the man shouldn’t have been charged under penal code for inadequacy of sentence?
Yes I think that the concern is well grounded. But again we must go back to EFCC. EFCC drafted the charges and with great respect to my good friend, Rotimi Jacob who is a very sound legal practitioner and whose integrity is not in doubt, I believe that charging the man under the criminal code or penal code is wrong. In the modern day reality, it was a mistake that he was charged as such. Instead the man could have been charged under money laundry law, the only thing is that you cannot take him to FCT court; you take him to Federal High Court. But I still believe that under money laundry law which I know of (2004 law) before it was reviewed, because in the new law of 2011 that was enacted, both State and Federal High Courts were given a concurrence jurisdiction to try money laundering offences. Because the way John YakubuYusuf and others acquired the money is still part of the money laundering, it is from illicit origin. The money belongs to the state, they can equally be charged under EFCC act, they can be charged under ICT act as the accused is a public/civil servant. so charging them under the criminal code which has a very lenient penalty, it was a mistake and that was why the accused person casting on it requested to take a fresh plea and as soon as they read the charges, he pleaded guilty.
Certainly our laws needs an urgent review but one thing I need to point out is that to the best of my knowledge the Nigerian Law Reform Commission has done review of our criminal law which they presented as a bill to the National Assembly through the executive but has not seen the light of the day because of lack of lobby. as you know there is no Bill that can get legislature attention unless that they are lobbied with our National Assembly. If you don’t lobby for it, that bill will just stay there and expire so I believe that’s why I am happy that the House of Representatives in one of their sittings last week condemned the saga in the issue of John Yakubu and then resolved that they will review the criminal code as within their legislative arms. You know the National Assembly cannot legislate on criminal code unless the state in the North can make review and then FCT together with House of Reps can partner with the Senate. So that is the situation the review has been done but that review has not received attention.
Going by recent events, do you think common man in Nigeria could still regard the Nigerian judiciary as the last hope of common man?
I am afraid not. There is a crisis of confidence between the Nigerian judiciary and the common man. The common man does not have his last hope in the judiciary anymore. The judiciary is no longer the last hope of the common man. The last hope of common man in Nigeria now is God. That is why you now hear the aphorism that “God dey is poor man’s prayer”. They have taken everything including their hopes and expectations to God. So until we have the right leadership at the executive, legislative and judicial arms you will not see changes and return to the good old days. That is why I am thrilled that Justice AlomaMukthar is being expected to take over as the next CJN. I have great expectations from her. The judiciary as at now is at its lowest ebb in terms of respect, in terms of acceptance and in terms of ability to inspire the common man. The tenure of Justice Musdapher is rather short and he cannot do much. He came in August, 2011 and he is going by July 2012. He is not a magician as to curing all the ills afflicting Nigerian judiciary. But Justice Mukthar is likely to spend two and half years, to me 24 months is enough to transform the judiciary.
Do you think the creation of more courts will be a solution to the perennial slow pace of resolving cases in our courts?
The major cause of the problem we have as it relates to delay in administration of justice is on the lack of the right calibre of lawyers appointed to judicial posts. If somebody was called to Bar and he joined a bank as and rose to become a company secretary, writing memos on mortgages and debentures, when he clocks 10 years, he becomes eligible to be appointed to the Bench, and you appoint him to the Bench. How do you expect him to perform miracle? Obviously, that person lacks capacity to adjudicate on the various cases that will come to the court. If you remember our courts are not that specialised. One judge will handle a human rights matter today, tomorrow he will handle land matter, another day he will do a winding up matter or shipping matter. It is like a general court. If you now bring somebody whose only knowledge of law is about mortgages and debenture to handle land or chieftaincy matter, how do you expect him to deliver a sound judgment? That is why there is delay in the justice administration; they keep adjourning cases because they don’t know what to write. Even when the written addresses have been submitted, because, the judge doesn’t have the background in that subject, it becomes difficult for him to put pen on paper and deliver a judgment. This is partly why we are having the delay. At the Court of Appeal, those that are being appointed these days, some of them are not fit to be appointed to that court. Because of the weakness in the system, they find their way to the Court of Appeal. Now as justices they are duty-bound in many cases to evaluate the record of appeal, but how would they evaluate the record of appeal when they lacked the knowledge of practice and procedure at trial courts? So, the solution lies in putting square pegs in square holes. I have canvassed the point that we have reached a situation where we should advertise vacancy for judicial appointments. Advertise it in the newspapers and those who qualify should apply. You will be screened, you will bring the judgments you have delivered if you’re a judge. If you are a lawyer, get all the cases that you’ve conducted including their briefs of argument or written addresses that you had written. A panel will evaluate them and determine your eligibility to sit at the Bench. Not the present arrangement that if I want to go to the Bench, I will go and meet my uncle who will talk to his classmate who is a judge and he will recommend me even though I have never appear before him. Then I get recommended and become a judge. That procedure is wrong. So in my view the procedure for appointment of judges must be reviewed for us to overcome all these challenges that you are talking about.
What is your take on the Supreme Court’s verdict that election petition tribunals should dispense with electoral disputes within 180 days?
Well, I must confess by saying that I benefited from that interpretation. There was an election petition by Prof Dora Akunyili against my elder brother in the Anambra Central Senatorial election. I handled the defense in that petition and took advantage of that Supreme Court decision on the interpretation of 180 days to terminate the proceedings. Prior to the termination, I had argued three times along the line of the Supreme Court interpretation before the Court of Appeal on the issue of 180 days but they overruled me. In interpreting statutes involving amendments, you must find out the mischief which the statute or the amendment of the statute sought to cure. What was the outcry? What was the complaint before the amendment came to being? The mischief was that cases were dragging on before the election tribunals. Some people were complaining that people were staying in office while cases against them were dragging on. They felt there should now be a time limit, and that was what led to the setting up of Uwais Electoral Reform Committee. The Committee recommended that the Constitution should be amended by inserting a clause that will restrict the hearing and determination of election petitions to a period not more that 180 days from the day the petition was filed.
Now, some people started twisting the law particularly at the appeal level. Here the Court of Appeal held that when a matter is remitted for re-trial you start counting the 180 days afresh. Was it in the statute?
Are the justices not amending that law to defeat the mischief intended by the lawmakers? That was why I agreed with the Supreme Court decisions that section 285 (5) & (6) of the amended Constitution is like mount Zion, that cannot be moved. No doubt It may create hardship for petitioners but I disagree that the Supreme Court decision was based on technicality. It was a decision based on pure substantive law i.e. on the constitutional provisions inserted by the lawmakers to speed up the hearing of election petitions. The lawmakers wanted it that way, so the way out is not to do an acrobatic interpretation of the law in order to subvert the intention of the legislature but to go back to the legislature and get them to amend the law. I have suggested that there should be a proviso that will state that ‘’provided that any matter remitted for re-trial by the Court Of Appeal shall attract a fresh 45 days for hearing and determination”, simple. So, the Supreme Court should not be blamed for adhering to the provision of the Constitution as demanded by the legislature.
The National Assembly is proposing for stiff penalty for offences such as kidnapping and terrorism. But why do you think they are not doing it for corruption related offences?
Well I think the reason why they are not paying attention to the issue of corruption is because of the signal they are getting from the executive arm. I can say without fear of contradiction that there is no regime that promoted corruption than current regime in Nigeria. The corruption under Jonathan administration surpasses that of Abacha and Obasanjo regimes.