Will Jury Trial Enhance Nigeria’s Anti-Corruption War?
By Ibrahim Dan-Halilu
A bill to incorporate the jury system into the nation’s Criminal Justice System has generated a fresh debate on the desirability or otherwise of adopting the jury trial as a panacea to delay in the prosecution of the country’s war against corruption.
Jury trial is not a new phenomenon to Nigeria’s justice system, as it has been adopted as late as 1976 before it was abolished by the Murtala Mohammed-led military junta after receiving series of complaints of massive corruption and nepotism in the administration of the jury system.
Leading the call for the adoption of jury trial in a wider scale is a Lagos-based non-profit group, Jury Justice and Rectitude Advocacy Initiative [Jury Movement], which has already presented a draft bill to some seventy selected stake holders recently in Abuja under the auspices of the Presidential Advisory Committee Against Corruption [PACAC].
The one-day event was PACAC’s attempt at giving the stake holders a chance to review the draft bill so that they can highlight grey areas before it’s passed to the Executive for consideration. Among the stake holders who attended the one-day roundtable were representatives of the Minister of Justice and Attorney General of the Federation, Chairman of the Economic and Financial Crimes Commission [EFCC], and Independent Corrupt Practices and Other Related Offences Commission [ICPC], the Executive Secretary of the National Judicial Council, Chairman of the Senate Committee on Financial Crimes, Special Adviser to the President on Judicial Matters, Nigerian Bar Association, and civil society.
The review process was led by the Director of Public Prosecution of the Federation [DPPF], Mrs. O.O. Fatunde who raised some pertinent concerns regarding the adoption of the jury trial at a time when Nigeria is just few years into the implementation of the Administration of Criminal Justice Act 2015 that was designed to address the major challenges that cause delay in the administration of justice.
“The stage we are at the moment is we are implementing the ACJA and we have made tremendous progress in the administration of justice in Nigeria. Since the passage of the ACJA in 2015, there had been tremendous improvement in the judicial process especially with regard to unnecessary adjournment of cases by judges,” the DPPF informed the audience.
According to the DPPF, before the implementation of ACJA some cases were taking several years to dispense but today the situation has changed as the Act stipulates 42 working days within which prosecutors must argue their cases before a judge. The ACJA allows three adjournments of 14 days each, after which no extension may be granted except on genuine reasons to do so.
The DPPF cautioned against jettisoning the judicial process in substitute for jury trial whose members would be Nigerians with similar corruption tendencies and ethno-religious sentiments that may hamper effective implementation of the jury trial.
“What is needed at the moment is support from Nigerians to sensitize the judges to key into the reforms brought about by the ACJA instead of a new law that seems to declare a vote of no-confidence on the judiciary,” the DPPF emphasized.
The proposal might be borne out of the assumption that the judges are the major impediment to the successful prosecution of the war against corruption as illustrated by the Chairman of PACAC and several other discussants.
But the jury system itself might have its own setbacks as highlighted by Mrs. Fatunde, prominent among which is the fact that the jurors too will be Nigerians who might be susceptible to corruption, have their own religious and ethnic biases.
Perhaps, that is why Mrs. Fatunde asked a rhetorical question during the roundtable thus: “If you cannot control the greed of one man who is a judge, how can you control that of several persons who will serve as jurors?”
Besides the human factor, the DPPF also faulted the selection process which has set some criteria that may be difficult to measure, such as integrity, non-conviction, and insolvency. Nigerians may not be unaware of the allegations of shoddy screening process against the Department of State Services [DSS] who have been accused of giving clearance to people with corruption cases.
Another challenge noted is the difficulty in locating prospective jurors to deliver letters of appointments or summon to their residences because of paucity of data. Many residential homes in Nigeria have no identifiable street addresses, others have wrong house numbers.
Mrs. Fatunde further argued most Nigerians especially in the rural areas have no internet access, where the internet may be available there is no regular supply of electricity to power the computers, which makes the three day ultimatum to fill in the jury application form unrealistic.
Another equally important issue raised by those against the jury trial system is the cost implication of establishing the jury service as outlined in the new bill. One of the key structures would be offices in the 36 states and Federal Capital Territory where the jury system will be administered, staffing, vehicles and equipment, all of which will cost the government several billions that can be put to better use.
The critics of the jury system posited that the government provide more funding to the judiciary to address infrastructural deficits and other issues than creating a new department whose viability cannot be guaranteed.
But PACAC in its response said the jury trial might not be perfect but in the circumstances that Nigeria finds itself, jury trial needs to be given a chance. The Chairman of PACAC, professor Itsey Sagay in his opening remarks said he personally supported the abolition of the jury system in Lagos for various reasons, and the number one being that he believed the layman could easily be influenced to take instructions but that a judge being learned in law would resist any attempt to persuade him or her and uphold the integrity of the judicial system.
He confessed that his earlier view became redundant when he saw that corruption in the judiciary was so rampant that he no longer believes that a judge can be relied upon to uphold the integrity of the judicial system. He lamented that technical knowledge has become a barrier to the administration of the law.
“Personally, I was initially not convinced that we needed the jury trial after it was abolished in Lagos State. I believed that a judge could preside over a case, look at the evidences presented before him and apply the law to pass his judgment. But few incidents happened that made me change my mind about it.
“The first which is the most staggering, is the one in which the defendant was a judge who appeared before another judge. Some of the facts in the case were very interesting. Thirty million Naira was paid by the defense counsel into the account of the presiding judge’s wife when the case was going on. That same defense counsel, a SAN also bought a car for the son of the accused judge. And then several other accounts up to about half a billion Naira.
“Recounting the reasons for his change of mind about the jury trial, Prof. Sagay further narrated:
“We expected that the presiding judge will ask the accused how he acquired all those moneys and property, and explain how a counsel appearing before him should pay 30 million into his wife’s account, and why the car for his son. Shockingly, the judge said that the 30 million Naira paid into the wife’s account was not the judge’s own account, so there was no conspiracy.
”He explained that the money was a contribution for his daughter’s wedding. And for the car bought for his son, he said well, it was the son that the car was bought for, not him. And then for all the other money found in the accused judge’s account, the presiding judge said the judge was from a wealthy family, he inherited property, he travelled abroad for courses and received “estacode” which he might have been saving. He turned into a defense counsel for the accused judge.
“That case made me realize that judges cannot be relied upon to give fair judgment in cases which they have personal interest. So the idea of having a group of people who are not judges, randomly selected based on certain criteria, have no any connection with the accused person, who represent the interest of the common man in the society to listen to the arguments of a case based on facts presented before the judge struck me. I feel that instead of allowing one person – a judge – presides over a case and deliver judgment, let’s have citizens listen to all sides of a case, get the facts, and pass their own verdict,” Prof Sagay upheld.
Besides using technicalities as a barrier to administration of justice, there is the issue of awarding ridiculous sentences or fine that are not commensurate with the gravity of the offence to which Professor Sagay cited a case involving a former governor charged for looting about one billion Naira at a High Court where the presiding judge awarded a fine of seven million Naira which the accused paid and walked away with his loot.
The rationale behind the new bill is that ordinary Nigerians who have no knowledge of the law should be involved in the trial of corruption cases where they will listen to the arguments of both prosecution and defense counsels and give their verdict based on facts which will direct the judgement of the presiding judge who will apply the principles of law to give his ruling on a case. The logic behind this innovation is that the ordinary citizens are the major victims of corruption and will set aside every sentiment detrimental to the anti-corruption fight and sentence the accused to appropriate jail term or fine as the case may be which will serve the cause of fair, equitable and speedy administration of justice.
Elder statesman and retired federal Permanent Secretary, Chief Philip Asiodu whose representative delivered the keynote address gave a tacit support to the new bill as he told the participants that “the proposed new bill is aim to enhance fair, transparent and equitable dispensation and increase citizen’s participation in governance and judicial processes.” Chief Asiodu expressed the hope “that the proposed new law will help to send positive signals regarding the feasibility of real change in our dear country.”
The Executive Secretary of PACAC, Prof. Sadiq Radda while delivering his welcome address noted that contrary to popular adage, too many approaches are needed to win the fight against corruption because of the magnitude of the problem.
“The more approaches we adopt, the better for the country because of the magnitude of the problem. As you can see, as efforts are being made on a daily basis by government and its agencies to fight corruption more discoveries, confiscations, and recoveries are being achieved. Therefore, the more efforts we made as a country and people, the better for the fight against corruption, the Executive Secretary said at the opening of the roundtable.
Several other discussants endorsed the idea of incorporating a system that will give room for citizen’s participation in the trial of special cases of corruption, while noting that a threshold should be set to determine which cases should be presented to the jury trial and which should be left to the bench.
While all the concerns the DPPF and other discussants raised against the adoption of the jury system may be cogent, Nigeria is currently at the crossroads as far as the prosecution of the war against corruption is concerned. The executive under President Muhammadu Buhari had made a promise to Nigerians in 2015 to clean Nigeria of graft, and had gone ahead to make some far-reaching reforms that would strengthen the judiciary and the anti-corruption agencies.
PACAC is an upshot of that rekindled determination to fight graft to a halt as it was established to fast track previous anti-corruption policies and programs, and advice the president on the measures or steps to take to move the war to a whole new level.
Under PACAC several bills had been drafted and submitted to the National Assembly for passage but most of these bills, like the Assets Recovery Management Bill and the Special Courts to Try Corruption Cases Bill are still in the coolers of the red chamber.
Last year, the National Assembly co-sponsored a two day workshop where experts from across the world converged in Abuja to discuss the challenges of fighting corruption and recovery of stolen assets in Africa. Many Nigerians thought that the National Assembly would take advantage of that August event to fast-track and pass those bills into law. Unfortunately, the impasse between the leadership of the then Senate and some members of the president’s cabal did not allow that to happen until the Eighth National Assembly finally closed shop.
In his second term, the President wanted to prove to the Doubting Thomas especially members of the opposition that the war against corruption is still on course and making headway. No doubt, both the Economic and Financial Crimes Commission [EFCC] and the Independent Corrupt Practices and other Related Offences Commission [ICPC] have had more convictions than ever before. But they have lost several high profile cases to poor prosecution while many others have remained untouched.
PACAC and several other bodies have pointed accusing fingers at the judges and some Senior Advocates of Nigeria [SANs] for the delay in dispensing several corruption cases, or disrupting the cause of justice, and rightly so. Nigerians are not unaware of the scandalous case of some senior judges whose residences were raided by operatives of the EFCC and made huge recoveries in millions of U.S. dollars believed to be far above their legitimate income. The immediate past Chief Justice of Nigeria, Justice Samuel Nkanu Onnoghen himself is a victim of the judicial clean up as he lost his position over allegation of corruption .
Allegations of corruption against judges and SANs have become a common feature of Nigeria’s judiciary which no serious person can wish away or pretend does not exist. But are judges really the only impediment to a successful prosecution of the anti-corruption war in Nigeria?
What about the anti-corruption agencies whose investigators too have been accused of receiving bribe from persons under investigation to destroy evidences or enter into unauthorized plea bargains? It will be recalled that a couple of years ago, the Chairman of EFCC, Ibrahim Magu dismissed some of the commission’s staff over serious cases of sleaze. Can we say the rotten eggs have completely been wiped off? There may still be remnants waiting in the wing for a new regime to resume their stock in trade.
Over the years, the EFCC has been accused by some judges and defense counsels of incomplete investigation and poor prosecution which resulted in the loss of many high profile cases. The judges had complained that the prosecutors would come to court with multiple charges that would take years for a judge, no matter how efficient, to examine but expect a verdict of guilt to be pronounced on the suspects without evidence tendered.
This lack of due diligence had on many occasions compelled the anti-corruption agencies to seek adjournment in order to amend charges or add new witnesses, which in effect had presented the anti-corruption agencies as incompetent.
Therefore, much as the Jury trial is desirable, the anti-corruption agencies also need to strengthen their capacity to thoroughly investigate and prosecute cases to avoid recourse to adjournments that will misrepresent them as unprofessional and eventually put the judges on the defensive.
There is no doubt that the jury trial would be a great innovation that may reduce the frequency of adjournment of cases on technical grounds and flimsy excuses like absence of witnesses or false sickness claim by defense counsels. It may also address the issue of undesirable collaboration between presiding judges and defense counsels to set corrupt persons free based on the weakness of the case or act of omission by the anti-corruption agencies.
One of the discussants who is a member of the PACAC Governing Board, Professor Alayemeka ade a suggestion for streamlining corruption cases that should go for jury trial instead of muddling up all criminal cases into the bill. He advised that a threshold be set for the amount that should be involved before a case is assigned to the jury trial.
Several other participants made a suggestion for identifying credible community leaders, members of professional and interest groups to serve as jurors instead of opening up the space for every interested Nigerian, noting that those category of people already have identifiable residential or office addresses, and majority of them have working emails.
On the issue of inclusion, several suggestions have been proffered, which include adopting a language that is widely spoken in the area for the jury trial, and removing clauses that exclude some categories of physically challenged and pregnant women from serving as jurors.
The general consensus at the roundtable was that corruption cases need special treatment different from the conventional but no attempt should be made to create a parallel institution to try corruption cases. If the jury system is to be adopted, it must be part of the existing structure of the judiciary.
With the endorsement of the proposed bill by the presidential anti-corruption think tank, the way forward is for the Jury Movement to fine-tune the bill, make it concise, clear, and reflective of all the observations made by discussants. It’s a job that will involve other professionals and experts to produce a clean bill for submission to the presidency.
The pertinent question is whether the National Assembly will pass it into law or keep it in the coolers like other previous bills. Nigerians may rely on the assurance of the Chairman of the Senate Committee on Financial Crimes and Money Laundering who said at the roundtable that the bill would receive a speedy hearing at the Senate and be passed into law when it finally reached the red chamber. One hopes this time the Ninth Senate will shame the devil and pass any bill that will enhance the prosecution of the anti-corruption war.
By Ibrahim Dan-Halilu, a media consultant and public affairs analyst writes from Abuja. He can be reached at [email protected]