FALANA: Re-engineer Code of Conduct Tribunal For Effective Anti-Graft War
Femi Falana (SAN) is an anti-corruption crusader and human rights lawyer. In this interview with ABIODUN FANORO, he noted that the Code of Conduct Tribunal is an effective anti-corruption agency, which, however, has been questionably under-utilised.
President Muhammadu Buhari has said he would establish special courts for corruption cases. Do you share this position?
WITH respect, there is an anti corruption tribunal in place established by law, but which is under utilised. I mean the Code of Conduct Tribunal, which has the power to order forfeiture of ill-gotten wealth and ban any corrupt public officers from participating in politics for upwards of 10 years. A new anti corruption court may be unnecessary in the circumstance. In other words, the government should take urgent steps to amend the law setting up the tribunal, with a view to increasing its jurisdictional mandate to try offences like corruption and other economic and financial crimes.
How would a mere change in the designation of courts do the magic of achieving speedy trials?
It goes beyond mere change of nomenclature. Under the present arrangement, the regular courts are congested with cases of land, chieftaincy, divorce etc., which make it difficult to concentrate on corruption cases. A newly designed anti-corruption court or tribunal will handle all corruption and terrorism cases.
This is not going to be the first time attempts have been made to speed up corruption trials. There used to be dedicated courts, why are they no longer useful?
The failed banks tribunals worked. Judges were selected and pulled out of the regular courts to man them. Special tribunals handle election petitions and they are working. Courts-martial created to try members of the armed forces are working. Family courts are working. So, the special courts to deal with corruption cases can be made to work if the government can muster the political will.
Close to the above, is the issue of the ICPC Act, which provides for one anti-corruption court per state. Why is this not being explored, instead of trying a virgin experiment?
That is misleading. The ICPC Act has not established any court. It is the nature and character of offences that determine the jurisdiction of courts. For instance, cases of money laundering, illegal possession of firearms and advance fee fraud are triable in the Federal High Court, while fraud, forgery, stealing etc., can only be tried by State High Courts.
Former President Goodluck Jonathan had once mooted the idea of special courts, but it did not fly, why suddenly is the idea gaining support from Nigerians?
The suggestion was opposed by the judiciary, which insisted that the status quo be retained, but with a commitment to improve the situation. Consequently, the heads of the federal courts enacted practice directions to accelerate the prosecution of cases of corruption and terrorism and the appeals arising from them, but the Practice Directions were ignored.
Some people are worried that special courts, which would come with deadlines could end up infringing on fair hearing; how should the courts go about this while guaranteeing suspects’ constitutional rights to fair hearing?
That is a diversionary contention. In order to stop dragging of election petitions in courts for years, Section 285 of the Nigerian Constitution was amended to provide for the determination of election petitions within180 days, while the appeals arising from them are to be concluded within 120 days. The provision is in order, but the Supreme Court misinterpreted the provision to the detriment of petitioners, by including the period of interlocutory appeals in the 180-period. But once parties are given equal opportunities to present their cases before a court or tribunal, the allegation of breach of fair hearing cannot be sustained. Fixing of deadline for hearing of cases is not illegal or unconstitutional. Indeed, by virtue of the provisions of the Administration Criminal Justice Act, 2015, corruption and other criminal cases shall be heard day-by-day.
How in your view should the agenda take care of investigation and prosecutors who are key factors in achieving speedy trials?
Under the new legal regime the investigation of cases has to be completed before charges are filed in court, because once the plea of the defendant is taken the trial shall commence and be heard, until concluded, without disruptions. Adjournments will be avoided, and if granted, they shall not go beyond 14 days.
The law has completely abolished the practice of staying proceedings or stalling trials through interlocutory appeals. Preliminary objections shall be considered with the substantive case.
What unique advantages are likely to be inherent in these planned special courts?
The main advantage is that the special courts will handle only cases of economic and financial crimes, including corruption. No more, no less.
Even if corruption cases could be concluded at record time at the special courts, what of when they go on appeals, at the last two most senior level of our courts?
There is no cause for concern. Under the Practice Directions of both the Court of Appeal and the Supreme Court, appeals arising from corruption cases shall take precedence over other matters. The Practice Directions were promulgated in 2013. The office of the Attorney General has to ensure that the system is made to work in the interest of the society.
If speedy trials could not be guaranteed at these two tiers, has the whole objective of special courts not been defeated?
With the overhaul of the criminal justice system the speedy dispensation of justice is guaranteed. But the political will to make the system work has to be provided by the government.