ATSUWETE: Traditional Courts Lack Capacity To handle Corruption Cases
Ken Atsuwete is a Port Harcourt-based human rights consultant. In this interview with KELVIN EBIRI, he says the endemic nature of corruption in Nigeria and failure of the traditional State High Courts to assign specific judges to matters that fall within the purview of the EFCC Act to tackle corruption, makes it imperative that special court be established to handle such cases.
Does Nigeria really need special courts to fight corruption?
NIGERIA needs such a special court to fight corruption, and that is, because the traditional court as established by Section 6 subsection 6 of the Constitution, are overburdened and seriously inundated with cases that have been on for as long as 20 years, that are yet to be decided. The judges and staff are inundated. It is also true that the structure within our judiciary in Nigeria, as it is today is completely laden with challenges that cannot be overcome in not too distant time. And this, to my mind, and to quite a number of Nigerians, legal practitioners particularly, are indications that if we want to fight corruption or anything related to corruption in our traditional courts today as they are, very little or nothing would be achieved.
If we recall very well, when the EFCC Act was enacted and there was a need to carve out special court that will entertain EFCC matters, State High Courts were mandated to assign specific judges to matters that fall within the purview of the EFCC Act that was done. Till today, we are yet to see substantive justice, actions taken, concluded, vis-à-vis EFCC complaints. And in my mind, if that did not work, can we therefore resort to same process that has not worked in the course of prosecuting matters that fall within the purview of corruption?
The answer is no. Our traditional courts cannot come out with anything substantial that will help us address corruption with finality. That is why there is need for special court and also a need for special personnel. There should be a need for special procedure that will accelerate the process of hearing all of these cases that will be filed and prosecuted. Unless we get that right and get that in place, to be honest, any fight that the federal, state and local governments will want to wage or even individuals will want to wage against corruption, will achieve little or nothing.
How feasible is it to create such a special court?
It is simple. The presidency or the state governors can draw up bills and send to the floor of the National Assembly or the State Houses of Assembly. These bills are deliberated upon within the course of legislative processes. And then legislators who would be convinced that there is need for such, who would be convinced that such could be sustained with genuine intent and purpose, will proceed to pass such a bill. And when the president assents to it, it becomes law and that is where we should start from. It is not something the government will want to do outside the law because this is a democratic system of government.
Remember we have the three arms of government and they must be seen to play out their completely in the course of establishing special court in these circumstances. That is why the principal role lies with the legislator. The president draws up the bill and then sends to the National Assembly. If the National Assembly deems it fit, the bill is passed. And when it is passed and assented to, it becomes an Act of the Federal Republic of Nigeria. When it becomes a law, then the structures can begin the process of being established. And the funds to do that would be in compliance with the provision of the law. With this kind of process in place, I am very confident that the issue of corruption can be addressed with finality if the will power remains with this government and any other government that comes after now.
Rather that create special courts, can government not reform the judiciary and designate credible judges to deal with matters of corruption?
The judiciary as it is right now is inundated and judges are carrying more cases than they can physically handle. And that is why we find delays of one year, two years, five, ten, twenty years. A judge might be handling one matter and then sends it to another judge and he starts pro-bono, this means that the judges are already inundated. Now, how can you go and add a burden such as fighting corruption to the burden that these judges are already handling? They don’t have the capacity. And if we do that, it means that the circumstance and situation will be worse than we find today. Do not forget that most of judges today already have questionable characters. Petitions have been written against them and we also know that the National Judicial Council (NJC) is investigating some judges. Is it now that you have such circumstances that you want to inundate them with more issues that will bring about more controversy? No, the best is to appoint legal professionals of repute after investigation have been made and do not end it there, make sure that they are also trained in the way and manner that will meet the challenges of fighting corruption at that the judicial level. That is the best way to handle this matter. Going to the judges as they are today, going to our courts as they are today, will be a far cry if we intend to get success.
Is lack of thorough investigation and untidy prosecution by the police and EFCC for instance, not an obstacle to the fight against corruption?
We are in an era where the police is under authority and that it is only when the presidency or governor says police move, and you see them move with genuine speed and result delivered overnight in most cases. Now, it takes the will power of the president, the will power of the governor to move the police to work. We are in an era where if the president says police investigate this matter, the result will be given over night. I am very sure that the president knows he can move the police and they can give him result at the shortest possible time. But the only place where he has challenge is the court of law, because that is not within his purview, as it is under the judiciary which is the third arm of government. And the president cannot dovetail into the judiciary. Otherwise, the principle of separation of power will be breached.
But instances abound where people have been arraigned in court for corruption, but due to shoddy investigation, are set free?
If the police are mandated to do that which is genuine investigation, the evidences are always there. But what we find is that these policemen who are mandated to investigate matters usually compromise their cases and evidence. Now, if we have a circumstance where the Inspector General of Police, Commissioner of Police and whosoever is in charge of a department is held responsible for any deliberate error, they will wake up and stand up to their responsibility, we will find results. And who can do that? It is only the president who can do that. If the president can do that, it means the president can make them work if he wants them to work. If the president does not want them to work, the president may well sit back and not say anything to them. And if you don’t say anything to them, they will follow their traditional system that has failed us in the past. That is why we are advocating that the president will have to ensure that the police are monitored. If the police are not monitored, we will not get results. Like you said, it does not just end in going to court, proper investigation and diligent prosecution is crucial.
How can we get credible judges to man this special court amidst allegation of corruption in the judiciary?
If you recall, I said legal practitioners will have to be trained. Legal practitioners of ten years and beyond; the constitution says can be appointed as judges. Now, if we have such provisions in the constitution, let us explore it. When you appoint such legal practitioners, take them through the rigorous process of training. Such legal practitioners must be persons of integrity, which means security checks and screening will have to be done to ensure that legal practitioners who are appointed are not such who are already tainted and are not connected with corrupt tendencies. With that, we will be able to get the right persons that will man the courts that will be adjudicating upon such matters. Do not forget that we are in the era when legal practitioners who have questionable characters are being punished by the Nigerian Bar Association disciplinary committee. Visit the Nigerian Bar Association and its disciplinary committee, details and information concerning any legal practitioner who has been conducting his service in questionable manner would be provided. And what do you do with such names, you thrown them into the dustbin. You don’t consider them for appointment. With this process, we can get genuine judges who can adjudicate on matters of corruption and they will do so speedily and Nigerians will get justice.
The Nigerian political class is deemed to be pathologically corrupt; are you not concerned that any legislation sent by the president to the National Assembly for the establishment of a special court might be distorted?
It is true that politicians are the ones representing us in the National Assembly and quite a number of them have been fingered by their own people, and suspected to have misappropriated one fund or the other. Let that not be a hindrance. If we do not do what is needful, that will amount to taking the cart before the horse. The horse should go before the cart. Merely suspecting members of the National Assembly to my mind before sending such a bill to the National Assembly will be putting the cart before the horse and subjecting ourselves to defeatist propositions before taking a step. If we fall into that trap, we will not fight corruption. That means therefore that it is for our failings that the fight against corruption remains on paper. It is not one genuinely fought. Let us take a bill to National Assembly and see what happens there. Allow things to play out first before we begin to make propositions that will make the bill to fail before it lands. So, let us not kill it before we see it. Let’s produce it, send to the National Assembly, allow them to deliberate on it and we will know what should be done if we notice any failings.
President Goodluck Jonathan administration considered having similar court but there seem to have been resistance against it within the judiciary; can you say that the circumstance has changed?
There is a new government in place that has made strong commitment towards fighting corruption. The Goodluck Jonathan administration made statements and utterances at different times, none was done with commitment and willpower to ensure that what needs to be done is done. Now we have a government that is saying we will do what needs to be done in the way it should be done. I think that so far, we can hold them to their words. Nigerians should give this government benefit of doubt. They have said let us proceed to make the laws that will enable the process of fighting corruption a reality. Let us proceed to establish court that will be separate from traditional court to adjudicate on matters that boarder on corruption. The best we can do in this circumstance is to give this government, the National Assembly and then all the agencies like the police, the benefit of doubt. The best we can do is to support the federal government and the president in the fight against corruption. The best we can to do is to ensure that we are convinced that we can all down tools if the need arise to ensure that corruption is wiped out. The president has said it that if we do not kill corruption, corruption will kill Nigeria. Do we want to be killed? Do we think that it will be proper for corruption to kill this hard earned democracy? We cannot allow corruption to kill Nigeria. Corruption touches every sphere of Nigeria today and we must fight it now and ensure it gets out of our way if we must continue with proper development.
Are you not concerned by the investigation of the EFCC chairman for corruption by the Senate?
It is an allegation and we are yet to get the outcome of the investigation. Let us be bold to state that everybody in this country can be suspected of anything; not that we are exculpating Ibrahim Lamorde. We are not saying he may not be connected with the allegations made, but we should give those investigating this matter the leverage to conduct proper investigation. And if that is what we expect, the peace that is required in this circumstance must be engaged towards ensuring that Lamorde is effectively investigated. The noise that we make and opinion that we raise have a way of whittling down the investigation that is being conducted.
The best I think for us all is for the outcome of the investigation to give us concrete facts with which the federal government can run, with which actions can be taken, with which prosecution can be instilled. That is the best Nigeria can patiently await and that will be one that will augur well for us in Nigeria.