RECOVERED PROCEEDS: RIGHT TO KNOW..... CHRIS UCHE SAN

Chris Uche SAN

It is not every Senior Advocate of Nigeria you listen to, Chris Uche makes sense he asks pertinent questions – what happens to recovered proceeds?

He does not want SAN rank abolished he says we should make a prima facie case because SAN who err are errant. He has a point there. He said not enough reason “discrimination” . But the rank is no longer valid in Ghana, Liberia etc never applied in US we’ll address it. He says SAN is a tonic for hard work. Splendid but where huge corruption sets in, it becomes a ‘scrapable’ subject.

Observe “Ben Nwabueze Centre for Studies in Constitutional Law and Related Subjects” inauguration, he signed his paper “no SAN” suffice. BAN catching up. I am actually one of the egg heads (pardon please)Prof Nwabueze asked to do a paper on section 174 CFRN etc

Date: Thursday 24^th Marvch 2016

Time; 9am

Venue: NIIA V/Island Lagos

You don’t have to be a SAN to be intellectually approved by the Patriarch, Africa’s Intellectual Giant you know.

To the germane question of where the recovered proceeds are and to what use its being put to?. I agree with Chief Chris Uche SAN that we ought to know.

Thanks

Best professional regards

CA

 

‘Nigerians Have a Right to Know What Happens to Recovered Proceeds of Corruption’

March 22, 2016

Chris Uche

The anti-corruption fight of the Buhari administration is slowly yielding some results but just as important as discovering these misappropriated funds is transparency in the management of recovered assets. Nigerians have a right to know how much has been recovered and what is happening to the funds now returned to the Government. While it is imperative that the Government continues to pursue stolen public assets and those involved with looting them, Chief Chris Uche SAN shares his views on how to build on the gains recorded, the role of the Rule of Law in succeeding in that fight and several other crucial national issues in this interview with May Agbamuche-Mbu, Jude Igbanoi and Tobi Soniyi.

How will you assess the government’s fight against corruption and compliance with the Rule of Law? Do you think the government has been able to strike a balance between upholding the Rule of Law and preserving the rights of persons accused of corruption-related offences?

I must begin by stating that the fight against corruption is one every true Nigerian must support. The devastating effect of corruption over the years on the Nation’s economy and the well-being of Nigerians cannot be over-emphasised. Corruption has become a way of life in this country, and is manifest in every facet of our public life. Indeed every aspect of counting in this Country has been corrupted; we cannot count our population; we cannot count our votes and we cannot count our money! Corruption is clearly the cause of bad governance.

Rightly, we are all angered and indignant at the rapacious devastation of corruption on our commonwealth. No one is happy when billions of Naira that would have been used in the provision of roads, electricity, water and security for citizens (being the basic and elementary responsibilities of Government) are embezzled. We are all victims of the deprivation caused by bad governance and corruption. We are also in agreement that the perpetrators of such offences, when proven guilty, must be brought to book as a deterrent and where possible for purposes of restitution to the society, the ultimate victim.

However, since we have collectively adopted constitutional democracy as our system of government, and have given ourselves a Constitution and set of criminal justice laws, no matter how angry we may be, the Government’s anti-corruption crusade must be prosecuted within the ambits of the Constitution and within the precincts of the Rule of Law. This principle is not just for the benefit or protection of the suspected offenders, but as a safeguard against abuse, arbitrariness or victimisation of an otherwise innocent person because of the imperfection of any human system of justice. It is therefore not for nothing that the principle of law over the centuries was established that it is better for nine guilty persons to go scot-free than one innocent person to be hanged or condemned.

It will certainly amount to a dangerous proposition of law to assume or conclude that anyone arraigned for corruption by any anti-corruption agency is guilty before trial. In fact, it will amount to the anti-corruption agencies usurping the function of the Courts, and the Courts abdicating their constitutionally-assigned responsibilities to such agencies, thereby turning the anti-corruption agency into the complainant, the investigator, the prosecutor and the Judge, all in one. That may sound good for those who have the instruments of coercion today, but my three-and-a-half decade sojourn in this profession has taught me that tables do turn, and the accuser today may be the accused tomorrow. It could be anyone, and that is why it is necessary for us as a country to have uniform standards, and that is what the rule of law is about. Let those accused of corruption-related offences have their day in court, let their rights as enshrined in the Constitution be respected pending their conviction.

We can still get good results if the fight against corruption is fought constitutionally and not dramatised and militarised.

Notably, there is an ongoing debate on whether government should mitigate the punishment for persons accused of corruption if they return misappropriated funds and proceeds of their offences. On its part, the EFCC states that notwithstanding any returns it will still prosecute accused persons. Other stakeholders suggest that there might be a “soft-landing” for them. What do you regard as the most effective and just approach to this dilemma?

Before the enactment of the Administration of Criminal Justice Act 2015, the Economic and Financial Crimes Commission Act (section 14) allowed for compounding of offences, which is a precursor to a plea bargain. Now, the ACJA Act 2015 (section 270) has institutionalised plea bargaining.

In the fight against corruption, both prosecution and refund of proceeds of crime are relevant, and the decision to take depends on the evidence available to the Commission. In some of these corruption-related offences, you discover that most of the recipients of the proceeds of corruption are NOT in a position to have knowledge of the source of the funds or any criminality attached to its origin. No payee queries the payer as to the genealogy of the money.

If the Commission has sufficient evidence against the principal offender, there will be need to prosecute in order to deter, and again to avoid creating the impression that if caught, refund obliterates liability.

However, for me, what matters most is transparency in the management of recovered assets. Nigerians do not know what has happened or is happening to all the recovered funds. Are they paid into the Federation Account? Are they returned in cases of State Government funds, to the States? The Government says some suspects are returning money but the deals are not made open. Nobody knows how much is returned or how much is forgiven. Transparency is the most vital ingredient in the fight against corruption.

One of the benefits of the current fight against corruption is that it is opening our eyes to hitherto unknown loopholes through which the Nation’s treasury has been bleeding. We need more openness and more accountability so that recovered funds are not subjected to a fresh cycle of corruption.

The Bar has been accused of encouraging corruption in the Judiciary by fostering lawyers that compromise Judges and employing dilatory tactics. What role should senior lawyers play in the fight against corruption?

For me, lawyers are the best partners the anti-corruption agencies can have in the fight against corruption. Unknown to many, the legal profession is the greatest ally to have in the fight against corruption, but the opportunity is missed because of the penchant for excessiveness and arbitrariness, borne out of, with due respect, ignorance and misconceptions. There is great need for interaction between the major stakeholders in the fight to ensure understanding and co-operation.

It is unfortunate that some persons think lawyers are not relevant in the fight against corruption and view them as obstacles simply because they defend persons charged to court for corruption. It is amazing that the most elementary aspect of the duties of defence lawyers is yet to be understood. There is indeed a lot of misconception of the role of lawyers in the fight against corruption.

Lawyers are the prosecutors the EFCC requires to prosecute its cases, both in-house lawyers and the external Counsel it retains. There is need to understand the tripod structure of administration of justice and trial by courts of law. The Judge presides; a lawyer (prosecutor for the complainant) prosecutes while a lawyer (defence Counsel) represents the accused or defendant. At the end of the day, it is the Judge that decides, based upon the presentation of evidence by the two sides. It is strange to suggest that once a person is brought to Court, he is guilty and he should not be represented by a lawyer and should be railroaded straight to prison. In that case, there is no need to bring the suspect to the Court in the first place; they might as well simply take the suspect straight to prison, and keep him in jail for as long as they think is good enough for the offence alleged. I think rather what such agencies should do is to invest resources in developing the capacity of their in-house Counsel to prosecute offences in court.

This is not to say that there are no bad eggs in the Judiciary or the legal profession or even among the senior lawyers. Amongst any twelve, it is said that there could be a Judas. However, it is unfair to make blanket accusations against the Bar of corrupting Judges. There are many Judges and lawyers out there, doing their work with integrity, uprightness, transparency and honesty. The profession itself is one of honour and dignity, and you can excel by being honest, reliable, dependable and diligent.

No lawyer in practice worth his onions will bribe a Judge, because it diminishes both your professional proficiency, capacity and even finances. You will definitely not earn a good fee if the client is paying someone else for your job. You do not need to bribe any Judge to win a case. The Constitution has put in place a hierarchy of courts, from the High Court to the Supreme Court. If you do a good job at the court of first instance, your client will know, and you can challenge any adverse decision up to the Supreme Court to get justice.

Senior lawyers must lead by examples by staying away from any conduct likely to bring the high position they occupy into disrepute. The profession must begin an in-house cleansing exercise; we need to retain the purity of the highest echelons of the profession if we must retain our dignity.

Recently, a section of the Nigerian polity including the Presidency criticised the Justices of the Supreme Court with regards to the judgments they delivered in some electoral appeals. What does it portend for our democracy when the apex court comes openly under criticism by another arm of government?

This is a very sad development which the legal profession must address. The decision of the Supreme Court as the highest court of the land is final, and whatever it has decided remains the law, unless the law is amended by a subsequent Act of Parliament. The Judiciary is an arm of Government but not a branch of the Government. Each arm is independent of the other, and the Executive cannot expect the Judiciary to give judgments in any particular way. The Supreme Court should not be made the scapegoat.

I must say that what all the arms of Government need is co-operation in the fight against corruption. Delay in service delivery is not the monopoly of any particular arm of government. Just as there may be delay in justice delivery, likewise there is delay by the Executive in service delivery, e.g recovery of the economy, improvement in electricity, provision of roads e.t.c, availability of petrol in our filing stations etc. Likewise there is delay by the Legislative arm in the passage of bills, making of laws, amending the Constitution etc. There is no reason for blanket condemnation of any arm of the government by any other arm; they are all parts of the same body, with each performing duties assigned to it by the Constitution.

Nowadays it has become quite fashionable for some sections of the public to bash the judiciary, including the Supreme Court. This is because some desperate politicians did not get the results they expected from the Supreme Court’s interventions in some electoral matters. Sometimes too, some of these accusations are mere pre-emptive strategies to blackmail Judges handling controversial cases, especially political matters. Sometimes when parties unsuccessfully attempt to bribe a Judge or a set of Judges and they are rebuffed or unable to make a headway, and/or when they lose, they turn around to claim that the other side had bribed the Judge or Judges. Nigerian politicians are known for extremes! They take pages of newspaper advertorials under the cover of one non-existent “concerned group” or “concerned citizens” to write all kinds of trash against the Judiciary. But when they win, ah! the Judiciary is toasted as “the last hope of the common man.” This is not fair, and because the Judges cannot go to the Press and join issues with these persons, this dangerous trend continues. To make matters worse, some lawyers who should know better have become willing tools in the hands of desperate and unconscionable politicians. This is very worrisome and must not only be condemned but must be stopped.

I think this is actually where the Nigerian Bar Association must rise to the occasion to defend the Judiciary against this onslaught. No one is saying that there may not be instances here and there of some misconduct, but there are in-built mechanisms for dealing with them, because if the Judiciary is destroyed, democracy is gone.

The Nigerian politician would still grumble, even if his case is decided by God himself. The governorship election appeals used to terminate at the Court of Appeal, but with the complaints of politicians, it was extended to the Supreme Court. Now, even after the Supreme Court has decided a matter, they will still want to return to Supreme Court to reverse itself, and I am sure if the International Court of Justice at the Hague had an office in Nigeria, Nigerian politicians would want to file appeals there against decisions of the Supreme Court!

We must respect institutions that have been established by the Constitution for the safeguard of the Rule of Law. To criticise judgments of the Supreme Court in the manner that is being done nowadays is a trend that is dangerous for the survival of our nascent democracy.

The People’s Democratic Party (PDP) for the first time since we began the new democratic dispensation finds itself in the position of opposition party at the Federal Government level. However it would appear that the shift is taking a toll on the party as a number of recorded litigations begin to make headlines. One particular litigation that has gone all the way to the Supreme Court is the suit between the contending parties of the Anambra State Executive Committee of the PDP, the Ejike Oguebego and Ken Emeakayi controversy is threatening to do away with the legitimacy of sitting members of the National Assembly. Perhaps in spite of itself the party’s troubles do not appear to be resolved anytime soon. What is your analysis of the current crisis in the PDP Anambra’s leadership?

The Supreme Court has entered final judgment in that matter, and that must be final. Like I said earlier, the decision of the Supreme Court is not open to debate; it is final, and that is what it should be. I will therefore be unable to discuss it.

And to answer your question with respect to the new status of the Peoples’ Democratic Party (PDP) as an opposition party, the challenges are to be expected. It would be the same for any other political party in Nigeria, and this is because we do not have political parties in their true sense of the word. We only have platforms and vehicles for seeking elective offices. That is why the political parties lack ideologies and have no manifestoes properly so-called. And because it is all about offices, that is why there is lack of internal democracy in the political parties that are supposed to midwife democracy.

The structure of the political party reflects the federal structure of the country, requiring parties to have national, state and ward levels. The selection of candidates for elective offices proceeds through the pyramid of congresses from the ward level. To have one or two national officers compile and send lists of candidates without nominees on such lists having emerged through the federal-structured process will continue to turn the process into a commercial auction.

You have previously advocated for a constitutional court to deal with pre-election and post-election matters because of the temporary nature of ad-hoc Electoral Tribunals. Can you explain in greater detail what benefits this would have on the resolution of electoral matters?

Thank you. It has always been my position because of the place electoral and constitutional litigation have come to take in our national life, it has become necessary to have a full-fledged court system to deal with electoral and constitutional disputes, rather than ad hoc Election Tribunals.

To begin with, every litigator will confirm to you that regular civil matters in all tiers of courts have suffered severely since the return of constitutional democracy because of the upsurge in pre-election and post-election matters and other constitutional cases, which by law and their nature, enjoy precedence over other civil matters. Moreover, the growth in pre-election and post-election disputes have been tremendous since such disputes drag on and last from one election to another election, keeping the courts busy all through the four-year cycle of elections.

Again, Judges are pulled out from their various jurisdictions to form panels, and the pending civil cases in the Courts suffer enormous delay and have to await the return of the Judges from national duties. The same is applicable to the various divisions of the Court of Appeal, from where Justices are drawn to compose Appeal Panels.

Thirdly, because of the ad hoc nature of the panels, the experience garnered in previous exercises is not deployed into proper human capacity development as the Judges return to their divisions, and could be recalled or not for future empanelling.

Since we have not yet learnt how to conduct free and fair elections, we will still have electoral disputes to contend with. We will still have intra-party disputes and litigation because of the absence of internal democracy. We will have constitutional disputes to contend with. Perhaps it is all part of the democratic development trajectory. Let us now think of something permanent; let us go for Constitutional Courts to deal with pre-election, post-election and constitutional matters. Let us build, develop and strengthen such a specialised institution to deal with these matters which have come to dominate our national life. They could be test-run on a zonal basis and later expanded to State levels. This is how the concept of the establishment of the National Industrial Court began, and today, it is a reality.

The coming of the constitutional courts will remove the intense pressure our Judges have come under in trying to comply with the statutory time limit imposed on them by law for determining election petitions, 180 days at Tribunal and 60 days on appeals. This year, the Supreme Court had to sit till late hours of the night to accommodate cases of this nature.

Do you think our electoral laws create a balanced framework for just and timely resolution of electoral disputes?

Speaking about electoral litigation, I strongly recommend a wholesale restructuring of the philosophy of our electoral jurisprudence, to be a little more petitioner-friendly. I have had the benefit over several years starting from the era of the transition to civil rule of handling several election petitions representing either the Petitioner or the Respondent, and I have come to see that the scale is heavily weighted against the Petitioner, which makes politicians desperate to win first and let the other party go to the Tribunal, making elections a do-or-die affair. For instance, the role of INEC in election petitions must be re-examined in order to create a level playing field for the Petitioner and the Respondent. If INEC must defend the result declared by it, then the law must place on it a burden of proof to justify the result, and we must reconsider and restructure the presumption of official correctness of results and doctrine of substantial compliance, creating exemptions and exceptions. We may even begin to think of limiting the role of INEC in election petitions to that of being subpoenaed as witnesses or a mere nominal party, so that the contest is squarely between the combatants.

Electoral corruption is the mother of all corruption, and until we rid the process of electoral corruption, manipulation and arbitrariness, we will continue to suffer from other manifestations of corruption.

Severe delay of cases in courts by unnecessary applications and interlocutory appeals have been identified as a major setback in the administration of justice in Nigeria. There have been suggestions that interlocutory appeals should be concluded at the court of appeal. What is your opinion on this suggestion? What further steps can be taken to tackle delay in the courts?

Yes, I subscribe to the view that interlocutory applications should terminate at the Court of Appeal. The Supreme Court has been inundated with several interlocutory applications that have proved to be nothing but a clog in the wheels of speedy administration of justice. Very many of these interlocutory appeals can be subsumed in the main appeal, because when allowed, they create congestion in both the lower court where the matter is pending and the Supreme Court when the interlocutory appeal has been lodged. The Supreme Court being the final Court, litigants should, in one case, have only one opportunity of getting there, that is, the main appeal; and not become a place for frequent visits and casual excursions by a single case. The Supreme Court is the policy Court of the land and must be final in every sense of that word.

More specifically, the delay in criminal proceedings greatly affects the perception of justice delivery by the average Nigerian and it is harmful to the overall image of the Judiciary. In your opinion what can be done to reform the administration of criminal justice in Nigeria?

Delay is not peculiar to criminal proceedings; there is delay in all proceedings in Nigerian courts, and the reasons for the delay are legion. However, it is heart-warming to know that the Judiciary has taken bold steps to deal with the some of these bottlenecks. As you know, the new legal framework, the Administration of Criminal Justice Act, 2015 has come with a whole lot of mechanisms for speedy trials, including abolition of stay of proceedings in interlocutory appeals. Besides, the Federal High Court, the Court of Appeal and the Supreme Court all have practice directions for speedy disposal of criminal matters, particularly corruption matters. Recently, the Administration of Criminal Justice Monitoring Committee was inaugurated by the President of the Court of Appeal, with the Chief Judge of the FCT as the Chairman. These are all commendable measures to reform the administration of criminal justice in Nigeria.

You have held various positions in the NBA, including the positions of Publicity Secretary, and Member of the NBA National Executive Committee. You have also previously demonstrated interest in the leadership of the NBA. If you are elected the NBA president, what changes will you introduce in the NBA?

That was 10 years ago; in 2006 when I ran for the office of President of the Nigerian Bar Association. Now, I am content to remain in the background as a Bar leader or Bar Elder and make suggestions to those in charge to bring the required changes. I still remain steadfast in my belief that the Bar Association is not and must not be run as a political party but purely as a professional association. We are still copying the Nigerian politicians rather than becoming an example for them to emulate.

You once chaired the Ethics and Conduct Committee of the NBA Abuja Branch. What practical suggestions can you give for promoting the discipline of lawyers at the branch level?

The problem with the legal profession is that we have sold the soul of the profession to mercantilism and sacrificed the spirit of the profession on the altar of commercialism because of the pressures of a depressing economy. A profession that ought to be an honourable one, where only fit and proper persons are called into it, and persons who would view it as a calling, has now become an all-comers affair because people are unable to find jobs in places where their hearts truly are. Therefore, ethics and good conduct have been thrown overboard, and integrity and honour have become history. Discipline is now a total stranger while respect for seniority, which is the foundation pillar of the profession has become a relic of the past.

We need to return to the basics; we need to return to the honour and dignity that the profession was known for in those old days. At the Branch level, we need monthly orientation and reorientation of our members on professional ethics and conduct. Our disciplinary mechanisms are quite functional and many erring lawyers have been disciplined, but I believe that prevention is better than cure. Let us keep sounding and resounding these principles in the minds of our members as often as possible as a deterrent.

There are arguments for the abolition of the rank of Senior Advocate of Nigeria because it has been adjudged to be discriminatory and it has been alleged that certain SANs are not living up to expectations. Will you support the abolition of the rank of SAN?

Instructively, those clamouring for its abolition have not made out any prima facie case at all. Would you abolish the rank of Generals in the Army because it is discriminatory or because one or two Generals have not lived up to expectation? Luckily the rank of SAN has self-sanitising mechanisms that address cases of abuse and indiscipline where found.

A rank that is designed to be the hallmark of distinction and recognition of excellence in the profession can only be a privilege, and not a right common to all. There is need to have something to aspire to; it is a tonic for hard work. In fact, defending and sustaining the rank is hard work in itself. You have a duty to live and lead by example.

In these days when everything is fast losing its value in this country, to abolish or destroy the only rank of excellence we have will be to draw the final curtain on the last days of the glory of the legal profession.Generally speaking, it will be sad for my generation to helplessly watch the passing away of the tradition of excellence, the tradition of dignity and the tradition of honour of the profession handed over to us that we are expected to bequeath to the next generation.