Immunity Revisited: How to Defeat the Nigerian Thief

Politicians With Pending Corruption Cases Still At Plea Stages After Five Years | Sahara Reporters

A Review of Section 308 of the 1999 Constitution of the Federal Republic of Nigeria versus the Abuse of Discretionary power by our High Court Judges: A Road-map to Surmounting the Procedural Rigmarole in our Criminal Justice System.

A Synopsis:

In spite of the numerous clear cases of perversion of justice (abuse of discretionary order/power by trial judges) and the time-wasting tactics and procedural rigmarole ceaselessly deployed by highly respected legal luminaries that cumulatively imperils prosecution of high-profile thieves in Nigeria, most Nigerians continue to argue that the Immunity Clause in Section 308 of the 1999 Constitution of the Federal Republic of Nigeria is to blame for it. The attached articles by The Coalition Against Corrupt Leaders (CACOL) provide details and a chronological account of how clear-cut cases of fraud against prominent and not-so-prominent Nigerians died a premature death at the discovery stage. 

What is so revealing is that none of the felons mentioned in the attached piece is under any form of immunity protection from arrest, trial, and prosecution. The same story is true of the fraudulent petroleum marketers ousted by the House of Representatives Ad-hoc Committee on Fuel Subsidy last year. Some people were subsequently indicted by the Aig-Imoukhuede Committee based on facts and evidence that were proven beyond every reasonable doubt. In spite of the indictment, these rogues are on the loose, living large, and enjoying the fruits of their fraudulent enrichment unperturbed. 

Thus lending credence to our position in one of our most popular essays on this Blog, "IMMUNITY: THE SCOPE AND EXTENT OF SECTION 308 OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, posted June 4, 2012. The piece by CACOL put a lie to the generally held view that immunity is responsible for corruption in high places in Nigeria. As things stand now in our criminal justice system, the earlier the legal community rises up in unison and speaks in one voice towards finding lasting solutions to the gross prosecutorial lapses and judicial misconduct wrecking our criminal justice system the better it is for every one of us. 

This piece is my own contribution to the road map that I demanded of other Nigerians.

Abuse of Discretionary Power and Other Issues:

In "IMMUNITY: THE SCOPE AND EXTENT OF SECTION 308 OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA", we argued fervently that the Immunity Clause in Section 308 of the 1999 Constitution is not the cause of corruption and embezzlement of public funds by political leaders in Nigeria and that it should be left intact.  

We firmly positioned then, and still hold today that repealing the section would result in a total breakdown of law and order following an upsurge in frivolous and un-meritorious lawsuits against a sitting President or State Governor as the case may be. 

We argued further that the inability of those vested with regulatory and anti-corruption power to live up to the demands and expectations of their respective offices (arrest, trial, and conviction) is responsible for the disturbing scale of official corruption rampant in Nigeria. 

Above all, we believe that that problem (prosecutorial weakness) is compounded by the brazen abuse of interlocutory application by defense counsels (injunction) in cahoots with spineless judges who willingly demean their discretionary power via questionable rulings on interim applications. That is the most effective tool in the hands of fraudulent Nigerians in their war against our criminal justice system. That is what this article is all about, and the very reason we attached the above article by CACOL for your perusal. 

Granting injunctive reliefs on flimsy excuses in the face of egregious malfeasance, without even a modicum of legal reasoning, or the slightest deference to ethical considerations or the need to serve substantive justice as understood by the reasonable man is tantamount to aiding and abetting the charged offense. Most often, clear-cut cases of stealing and embezzlement of public funds are adjourned indefinitely, while EFCC stands by and watches helplessly. See the attached article.

You steal, you steal. Period. If your hands are clean then be willing to take the stand and clear your name against all charges instead of resorting to time-wasting and procedural legal mumble jumble at the expense of substantive defense. What is missing right now is the organization, followed by strategy and tactics. It has nothing to do with hiring first-class lawyers and senior advocates to argue your cases. It requires a fundamental understanding or the ability to read the minds of those indicted of fraudulent enrichment. It involves knowing how to do the same (mob) dance they have perfected so well over the years.

Understanding the Nigerian High Profile Thief:

First and foremost, the thieving Nigerians do not want real justice as understood by reasonable people all around the world – they love the good life, the affluence, and the luxury that stolen wealth engenders.  Therefore, delay tactics, no matter at what cost, is the game they play with a view to frustrating EFCC to abdicate its prosecutorial responsibilities.

Second point: financing the trial is no big deal – they have already amassed substantial savings of our money required to hire and retained the best lawyers in town to effect the procedural delay and keep them out of prison.

Thirdly, remember, they do not labor to earn a dime they offload to finance their trial and prosecution. It is your money, our money. There is enough of it to go around to everyone intent on cashing in on the massive flow of free money at their (the rogues) command to buy justice.

Finally, showing up in court once in a while is just a picture - a routine exercise. After all, they have their mansions, their cars, international passport, and of course, their highly visible and highly influential lawyers to ensure their release once again after another successful motion for adjournment, and onto the waiting embrace and comfort of their buddies, loved ones, and family members.

That, my friend, is the working of the mind of the Nigerian high-profile criminal. Like it or not, it will remain so in Nigeria until we are willing to adopt the nuclear option described here. By doing nothing, we risk a Jerry Rawlings insurgency, which the Nigerian power elite groups know very well, but seem to have forgotten presently.

Granted, the indicted felons, especially the ex-Governors whose cases have not been fully litigated or dismissed on merit, have millions of dollars budgeted to write off litigation expenses, but they never, anticipate the likelihood of continuing arrest, harassment, or the possibility of being ferried from one jailhouse to another in handcuffs and the added risk of contracting the deadly disease while in detention. And that is the nuclear option. It is an outright seizure, forfeiture, and deprivation of freedom until his guilt or innocence is proven by either party. 

The Nuclear Option - Approaches and Tactics

Now is the time for EFCC to take the fight to their bedrooms - continuing harassment and detention. As Sapele/Warri English would have it, "the pikin wey say ‘im Mama no go sleep, ‘im too no go sleep." This line of reasoning may sound simplistic, but don't forget the Nigerian thief loves the good life, living large and living big. He cherishes globetrotting and the comfort and company of his buddies and family members. But he resents prison, arrest, and detention. 

Therefore, ceaseless harassment, arrest, and detention by law enforcement agencies will take all that privileges away. Thus, rendering fraudulent endeavors a total fiasco. Yes, this approach should be in the same proportion; mirroring the magnitude, manner, and style of their modus operandi.

This is war, Nigeria! This is war! Demanding that we take the fight to their bedrooms is not novel or impracticable. It is analogous to the drone strikes strategy being deployed of late by the US security agencies in their war against terrorism. And it has been very successful. Yes, take the fight to where they least expected - their living room or parlor as we know it in Nigeria. They should be the ones begging for justice and demanding the application of rule of law, not the state (prosecutors).

Until the Supreme Court gives its final ruling on a specific case, such a case is not moot, except by statute of limitation with respect to the particular offense charged. You don't give up prosecuting rogue politicians and their likes in the public sector simply on the basis of ex parte interim relief granted by a High Court. It is the Supreme Court that has the final say. That is where organization comes in.

Worst case scenario, if EFCC cannot appeal a particular injunctive order granted to a particular accused by a particular court to a higher court, that is not the end of the road. EFCC should resort to the nuclear option discussed above: arrest the accused again and again on another count at a different court in a different jurisdiction and lock them away from civilization until they are willing to surrender and forfeit their loot and spoils of office to the people. Besides, you don't need a new warrant to execute the latest arrest - the arrest is continuing.

In addition, EFCC should set up a unit with a specific mandate to monitor the development in every case they filed. And position this unit with the financial and logistic wherewithal to be able to effect new arrests and new charges as soon as the accused is stepping out of court. 'Gbab' them again and again and take them away to unknown destinations until the money is no longer of any value or meaning to them. Call it jungle justice, but I call it strategy and tactics. It is the game they play since the demise of the second republic with devastating impacts on our national treasury.

There is no doubt that I am against capital punishment and the death penalty, but continuing arrest, harassment, deprivation of freedom, and humiliating treatment of the indicted felons would send a sober message to family members and friends as well as potential thieves in public places. We just want our money back. Period.

Conclusion:

No doubt some of you would argue that, but for the presence and protection of the Immunity Clause, the indicted Governors in the attached article would not have been so reckless with public funds the way they did while they were in office. There is a sense in that assumption, though, but it is still a mere conjecture. The truth is that these rogues, in their perverted thinking, believe that as long as they have a substantial portion of the stolen money set aside to buy justice and their freedom, all will be well in the end. As history has shown, that has always been the case due to our inability to prosecute them as they did to James Ibori in Great Britain. 

The new approach should be seizure and forfeiture, followed by lifetime imprisonment, without the possibility of parole. Banning them from politics or from holding public sector jobs as most people have suggested will not alter one bit our innate drive to steal and live largely. They will never change until the majority of them start dying in prison. 

Amending Section 308 or expunging it from our constitution as some people have suggested is a shortcut that will not lead to the intended goal. It will create a complete breakdown of law and order and paralyze our growing democracy. Law and order aside, if you cannot prosecute and convict one fraudulent ex-Governor out of the many living free and living large today on stolen wealth, and, if you cannot prosecute, convict, and recoup our stolen wealth from bogus petroleum marketers and rogue bankers (neither of whom enjoy any form of immunity), then tell me how you will prosecute and convict a serving Governor or President on fraudulent charges with all the influence and machinery of state at his disposal. 

Thank you.

February 15, 2013