Fighting Corruption: On EFCC Recoveries and the Demand for Quick Convictions
Campaigns against corruption are not new, but the President Muhammadu Buhari administration appears to be talking a lot more about it than the previous administration. To be fair to the current administration, it has adopted some new measures which are yielding some results.
The creation of the Prof Itse Sagay – led presidential committee on anti-corruption underscored the seriousness with which the administration wanted to approach its fight against corruption. That committee has at different times claimed the glory for emboldening various government agencies in the fight against corruption, and supplying new ideas.
We have for instance seen the Economic and Financial Crimes Commission (EFCC) announce several cash discoveries, recoveries and refunds to the national treasury from persons accused of corruption. EFCC is not exactly new to this. In 2016, the attorney-general of the federation, Mr Abubakar Malami SAN stated that the agency had recovered about $2 trillion over the past 12 years of its existence.
On Thursday, the agency also stated that it had secured about 1,500 convictions between 2015 and 2016. Arguably, many of those convictions had little to do with corrupt politicians and could not have attracted a lot of media attention.
The frequency of recent loot recovery efforts coupled with a lingering concern about the absence of adequate punishment for influential fraud suspects therefore awakens a latent demand: convict and sentence the big thieves!
On seeing the reports of the EFCC’s discovery of $9.8m cash at the home of a former group managing director of the Nigerian National Petroleum Corporation (NNPC), Andrew Yakubu, one notable analyst screamed (I imagine so) on Twitter that cash discoveries and recovery were not enough, and the EFCC should simply get him a conviction.
The truth however is, the EFCC cannot simply get him or anyone a conviction except one of two things happen: the suspected thieves plead guilty in court or the trial does not take place under the current criminal procedure.
For the first scenario, where a suspect pleads guilty, he can be convicted after the court confirms that he understands the charges against him and the possible consequences of being convicted. Such trial may take a total of about 3 or 4 adjourned dates and I have seen this play out in court before in a $2m fraud case prosecuted by the EFCC.
In that same court however, and at about the same time, the EFCC also initiated criminal proceedings against a former director-general of Nigeria’s maritime agency for money laundering to the tune of about N48bn. As is public knowledge, the former DG pleaded not guilty and under the circumstances, you cannot just “simply get” a conviction. You have to sweat it out.
On one court date for instance, an EFCC witness took about 30 minutes to go through many bank documents containing what you might consider compelling evidence then each of the lawyers for the former DG and his five co-defendants took between 20 to 40 minutes to question the witness (this is called cross-examination) as is their right to.
In essence, the court spent about 4 hours on that matter alone for that day hearing the testimony of only one witness who even had to return the next day as in-between her testimony, there was a legal debate about a document. Each of the 7 lawyers in court was entitled to argue back and forth on that lone issue and the court then gave a ruling on just that document before the cross-examination could continue.
The intriguing part was that the prosecution which has a more onerous duty to prove the guilt of the accused beyond reasonable doubt before it could earn the conviction of the defendant, had 6 other witnesses listed while the defendants also had about 7 witnesses listed to testify to their innocence. With each of those witnesses, the same drama as described above is bound to play out.
If the court refused the lawyers the opportunity to ask all the questions they wanted to ask or argue out a point about the admissibility of a document or otherwise, it could constitute a ground for appeal either by the prosecution or the defence at the end of the trial.
As long as there is no express admission of guilt, the criminal procedure has to be followed through and under the current system where the same court has a litany of other cases to attend to, it would always have to adjourn to convenient dates to accommodate other matters. The prosecution can therefore only determine when the case begins not when it ends. That is beside the point about the competence of the prosecutors in putting proper evidence before the court and making convincing arguments at the address stage of the trial.
One reasonable suggestion by the presidential anti-corruption panel is the establishment of a special court for corruption matters. A bill to that effect has been submitted to the National Assembly, but can one really count on the very same people who may possibly later suffer the ‘unpleasant fate’ of swift trials to ensure the passage of the bill? I am not so optimistic.
The present method of threatening some suspects and recouping a portion of their loot, as inadequate as that is, possibly presents some measure of result than having nothing recovered. Many citizens have however rightly asked what is being done with the recovered loot. In this regard, it is instructive to note that such monies cannot be spent right after seizure.
The government has to obtain a final forfeiture order from the court on each recovered sum and when the court gives its verdict, persons from whom the monies are seized have a right to appeal the judgments, up to the Supreme Court. The issue of time in court again comes to the fore so there is no telling when the money can then be fully available to be included in a budget. Nonetheless, I agree with the demand for accountability with the recovered loot.
The EFCC and the ministry of justice owe it to the public to regularly publish details of monies recovered, when and from whom they have been recovered, the current status of the forfeiture process and the stage at which the trial of the suspects are.
All of the above has been written under the assumption that there is indeed a political will to honestly fight corruption but that is not a given because personal, political and ethnic interests (among others) are sometimes so strong, even crystal-clear things become very unclear in Nigeria.