Preamble!
It doesn't take rocket science to investigate fraudulent conduct and embezzlement of Public Funds in Nigeria. They are open secrets. The problem lies not exclusively with the Bench but in the apprehension and successful prosecution of the culprits by the State. The Court or the Judiciary cannot, by itself, frustrate the dispensation of purposeful justice in a vibrant society like Nigeria. It takes the willing collaboration of those appointed to dispense justice in Nigeria with the accused and with the Bench to be able to frustrate purposeful justice. Sadly, though, the inability of the State to mobilise the resources at its disposal and litigate competitively against the defence team is not gaining adequate coverage in the news media. What must we do differently to maximise effort in the recovery of all the millions of Dollars and Pounds stolen from the National Treasury is the focus of this essay. It is a verifiable fact that the State Prosecutors (EFCC and ICPC) lack the manoeuvring skills necessary to outperform the defence team in their perfection and deployment of legal and non-legal strategies in the defence of their clients.
Considering the innumerable defeats that the State has suffered over the years in clear-cut cases of fraud and embezzlement-related crimes on the ground of legal technicalities and jurisdictional questions, one is at a loss to wonder at the nature of the preparation available at these government agencies before filing a suit in the court of law.
Take, for instance, the recent case of the Senate President, Dr. Bukola Saraki, at the Code of Conduct Bureau. This case went to the Court of Appeal and to the Supreme Court back and forth, not necessarily on the substance of the case (false assets declaration), but on a procedural issue - the failure of the Code of Conduct Tribunal to sit three Judges at the commencement of the hearing as the law requires. That the case was later dismissed following a no-case submission by the counsel for the accused is not the issue here. The time and resources wasted by Malam Danladi, the Chairman of the Tribunal, on a procedural question - sitting of two Judges, instead of three as the law requires in clear terms, should be of serious concern to Nigerians. It is similar to stories at EFCC - jurisdictional questions of law and competency of the court.
Be that as it may, not in all cases has the State and the EFCC been found wanting on procedural issues, even though they still suffer defeat. It is my humble proposal that in clear-cut cases of fraud and embezzlement of public funds, like those of the bogus Petroleum Marketers, the former Minister of Petroleum Resources (Diezani Alison-Madueke), and the former Chief of Defence, Air Marshal Alex Badeh, the State Prosecutors (EFCC and ICPC) should develop an aggressive narrative calculated to discredit them and impugn their integrity. The same approach should apply to lawyers and judges, and all the witnesses aiding and abetting mistrial and victory on convoluted questions of law.
As a prosecutor, you must be ready and willing to point accusing fingers, taking your case to the media. You must be consistently and unapologetically accusatory. You must never stop telling Nigerians how this and that named lawyer or how this and that named Judge is frustrating your investigation, frustrating the trial, and impeding the recovery of the fruits of the crime. It is that simple. He who comes into equity must come with clean hands. If you do the crime, don't come to a court near me; be prepared to do the time and forfeit your spoils of office to the State. Justice is not for looters. That should be the attitude.
Analysis!
Indeed, lawyering is a gentleman's game, but you don't have to maintain silence in the face of perversion of justice - debased litigation process unrepentantly perpetuated by defence lawyers as a winning strategy. You must not confine the trial process to the inside of the courtroom. Take the fight straight to the street and to the TV Cameras (the media), detailing and repeating the facts of the case at the end of every proceeding.
Strategically speaking, you cannot continue to brandish AK47, when the man in possession of your property is mobilizing Air-to-Surface Missiles, supported by a Battalion of fierce looking Infantry Brigade ready to demobilize you and render you motionless; inflicting serious emotional harms and bodily injuries on your next of kin, thereby rendering your next generations inherently, materially and perpetually pulverized. In Economics, it is called the "Poverty Cycle."
But we must be wise, and, if the need be, embrace extraordinary measures to surmount the man-made systems that facilitate the poverty cycle. That's why this essay is written. After all, it takes a young David one slingshot to bring down the mighty Goliath.
This time, I am not proposing a slingshot or an arsenal of sophisticated weapons. But by word of mouth, using the media, persistent and consistent narratives, persuasive in content and aggressive in delivery, tailored to discredit the culprits and make them enemies of the people before the judgment.
Granted, most Nigerian communities are reputed for rallying to the support of their rogue sons and daughters facing fraud and embezzlement-related criminal trials. Nevertheless, the Prosecutors must not relent in taking his or her grievances (the crime committed) to the group, the community of sympathisers. Reminding them that their so-called worthy son or daughter did not benefit them with his stolen wealth. It was all about him, his luxurious living and paying for expensive colleges and universities for his children overseas. It is about the narrative.
Again, granted that it is the decision of the court that matters, but don't forget that the Nigerian thief is a stupid thief who doesn't care about being caught in the act. He is supremely confident of his financial muscles; confident about buying favourable justice and working out free, aided by a highly compromised trial and verdict.
In Nigeria, the proof beyond a reasonable doubt standard is not difficult to attain in the embezzlement of public fund cases, because the law is clear and the facts are self-evident. However, victory is difficult to attain because you are likely not to be in a position to mobilise the law and the facts to establish a case for guilt, due to questionable adjournments, injunctions, and legal technicalities. Knowing these as the bedrock of the trouble with the Nigerian criminal justice system, I entertain no scruples or nurse any feeling of guilt or a break with legal ethics, developing this street style, discrediting approach. It is another way of saying, we have the facts and we know the laws; defence counsel and the trial Judge, you are now on public notice.
If, for instance, an accused was paid 12.5 Million US Dollars as a down payment by the Nigerian Port Authority for a dredging job that was not done, and the accused later came over to the NPA, making demands for the outstanding payment, when the NPA and the law enforcement agencies have it on records that indeed the purpose of the contract was never fulfilled, what stops the Prosecutor from taking his case to the public via TV camera the moment the suit is filed? This is a more pragmatic approach to disarming the highly remunerated defence counsels who have perfected the craft of marshalling every undecipherable legal mumbo jumbo in frustrating proper proceedings and securing victory on convoluted technical premises.
In addition, if an adjournment is unconscionable, unreasonable or not supported by facts or laws, come to the camera at the close of business and tell the public why the adjournment does not enjoy any support in law. If the defence counsel is playing a game with time (delay tactics), come out and tell Nigerians the history of the case and the necessary procedural issues, and whether the waiting period is legally plausible. In other words, make it a public trial. No law says you shouldn't talk to the press after a hearing, if you stick to the facts of the case, adhere to the applicable legal ethics and tell credible stories after each proceeding.
Conclusion
In sum, the Media Approach or Character-Focused Approach should only come to play in criminal proceedings like those of the bogus Petroleum Marketers, Madam Diezani, and the former Chief of Defense, Air Marshal Alex Badeh who was imperturbable, paying himself Millions of Naira every month as the Defense Chief, and allegedly spending N320 of the Air-force Funds to buy a house for his 28 years old son at Abuja. If you cannot adopt Summary Judgment in the face of mounting evidence, you can at least resort to talking to the camera.
Educate Nigerians on how much they embezzled; how the embezzlement was consummated, and what the law says about the crime. You repeat these lines each time you make an appearance before the court.
Call it Character Assassination if you wish, but I call it Character Prosecution through the media. Don't do the crime if you can't stand the humiliation that it engenders. If you knowingly defraud the State (Nigeria), and in complete disregard of the penalty or repercussions of your conduct, don't come to a court near me. That should be the attitude of the EFCC, the ICPC, and the Attorney General. It is not too much of a scourge for the stupendous griefs purposefully imposed on a people God created and resourcefully endowed to be happy. I beg to move.
My name is Ehi Aidaghese, and I endorse this message.
An Addendum:
"Competency of the Court" and "Jurisdictional Questions of Law" as used in the last sentence of the second paragraph.
What you are about to read may sound simplistic or jurisprudentially elementary; nevertheless, EFCC and their Lawyers have bungled some high-profile cases on issues relating to the competency of the court or of a court. Remember the Judge who awarded about N75,000.00 against an accused who was convicted of embezzling Millions of Naira over the years, as well as having ownership of extensive landed property all over Abuja and his native state. Though the judge is now dismissed from the Bench, the reason he gave for the decision was the competency of his court. As you can see, it takes the collaboration, knowingly or unknowingly, of the Prosecutors for the Bench to frustrate real justice.
For the benefit of those of you who are not lawyers and reading this essay right now, "jurisdictional questions" and "Competency of the court" are closely related. It is referred to as the hierarchy of court systems in a particular jurisdiction, country, or state. They define the power/competence of each court in the system/hierarchy; the nature of the case or cases that a court can entertain or hear, based on the amount of money involved, stolen or in dispute; the geographical location (where the crime was committed or the transactions took place); and the fine or sentencing that the trial judge can impose at the end of the trial. It is a First-Year Law Class in Civil Procedure or Nigerian Legal System/Procedure.
You must comply with these procedural requirements before filing your case. One, the Judge was not competent, legally speaking, to award more than that amount of money in damages, and two, he was not competent to litigate over such a colossal sum of money the accused was indicted in his court. He went ahead with the trial, nevertheless. Yet, we continue to rely upon and continue to remunerate these EFCC Lawyers and their rented high-profile Counsels who knowingly participate in the frustration of real justice in our law courts via the filing of cases in the wrong courts.
