By Dapo Akinrefon
Mr. Olisa Agbakoba (SAN) is a former President of the Nigeria Bar Association, NBA. In this interview, the legal luminary argues that the Economic and Financial Crimes Commission (EFCC) and the police have performed abysmally in the prosecution of suspects. He also speaks on the probe initiated by government into fuel subsidy scam. Excerpts:
Your client, Mr. Seun Ogunbambo, is standing trial for subsidy fraud. Don’t you think the ground of your application to quash the case, which you referred to as “Miranda Right” is alien to our legal system? What is Miranda Right and how does it apply in this case?
Miranda Right is applicable to Nigerians. It’s a name that derives from the American decision when Miranda, a black person, was beaten to death by the police and Miranda’s family brought an action against the state of Arizona and the Supreme Court decided that the Miranda Right is entrenched in the fifth amendment of the American constitution. Now in Nigeria, the origin of Miranda Right is quite old. It is traceable to the very widely known practice of the police; to beat people to extract information, which they call confessional.
When you read the report when I was the President of the Nigerian Civil Liberties Organisation (CLO), we found out that as high as eighty percent of the people in police custody are forced to make confessions and a very sensible rule was put in place, which was called the ‘Judge’s Rule’ which requires the judge to ensure that a statement of an accused person has been responsibly taken at the police station and signed by a senior police officer. Now, that Judge’s Rule is enshrined in section 35 of the constitution akin to Miranda Right.
All it says is that a person who is going to make a statement must receive legal advice immediately upon his arrest because it is that legal advice he receives that proves to the court that his rights have not been violated and, in particular, his statement has been voluntarily made. I have studied a number of cases, and, in particular the one I’m doing, when I did not see the application of the Miranda Right, I said no, that is serious. It is a very serious issue and I felt it is important that the right be contested in court.
So Miranda Right in a nutshell is not alien to the Nigerian system and not likely to cause more trouble for your client?
No, it is not alien to Nigeria. How can it cause more trouble for my client!? Rather it would establish whether his statement was made voluntarily because the caution required in the statement was not there.
But has the Miranda law been argued in any Nigerian court before now?
This is the first time and somebody must start something. The constitution is in the interest of Nigeria, so I’m not talking to raise my voice.
What is your take on the operation mode of the EFCC in handling the subsidy probe?
Not just the subsidy probe; everything. I don’t rate EFCC highly in their prosecutorial methods. I know of some of my very good colleagues in the EFCC who have performed very well and I can mention Rotimi Jacobs (SAN). But I speak generally – we are talking whether the EFCC should be restructured. Not just the EFCC, what of the police? The police is a disgrace. Because, at least, EFCC have lawyers, but the police are not lawyers and the police can prosecute and prosecuting a crime is not an easy thing because you have to understand what you are doing and you have to be trained.
So, a lot goes on at the level of law, whether EFCC or the police because they are not trained. If as a persecutor and I’m reading the file brought by Mr. X and EFCC investigating officer says this is a file I have investigated and I feel that you, the legal officer, will make a charge. That is how it starts. It is the EFCC investigative side that first takes off the case; gather all the evidence and then says we think something should be done here. Do they do it? I challenge the EFCC to confirm or deny that they have a meeting where they say how many files do we have?
Who is the investigating officer? Did you check to see that all the elements that constitute murder are present? They don’t do that! They just say, ‘we don’t like him, put him in the jail. Go and get a witness. When you get it, collect and put it in proofs and when you put in the proofs, take him to court’. In one case in Abuja, I told the judge, ‘I can’t read this thing. I’m entitled by Section 35 (2) to provide legal representation to my client but if I cannot read the document, how can I do so?’ And I’m bringing that in this case too because they have charged the man with offences giving a bundle but when I read the bundle, they are all jumbled– disjointed– not even paginated.
So, if you say the man forged something, I cannot tell where I can find it. Because in the olden days, a statement with which a man is to be charged with an offence is a sacred document. The judge reads thoroughly. Here how many judges read the proofs before they give consent? They just pile the files in the judge’s chamber and they say ‘what do you want, consent?’
That was why Gani (Fawehinmi) challenged the principle of consent many years ago. Consent to prosecute is a serious thing. My point is that the entire chain of prosecution that begins from investigation, to prosecution, to judge’s consent is all messed up. So by the time you are in the hands of an experienced constitutional-criminal lawyer like me, they can tear it apart.
In that case, what is your position on the handling of the entire fuel subsidy crisis?
It has not been handled well because Nigerians were very disappointed. In fact, not disappointed, Nigerians were shocked to their bone marrow that this type of thing is happening. And to me, in the maritime industry, I was absolutely stunned because I never knew that this type of thing was happening. So what Nigerians seek is a vigorous campaign to recover the money. But I don’t even know how much was stolen. Today they say it is this, tomorrow they say it is that. But what the EFCC should tell us now is “so much has been recovered.”
Don’t blame defence lawyers who take advantage of EFCC’s weakness. Like Seun, because Seun is entitled to the presumption of innocence, so it is you who say he has done something that should make sure that the case is prosecuted because the matter is all being bungled, nobody has any clue about what has gone wrong. If I were the EFCC chairperson, here is what I would have done; I would have written a memo to Mr. President, I would tell him this is a highly specialised matter and I don’t have the skill to handle it. We need to retain competent private prosecutors, agree with their terms of engagement and go to court.
That is what happens in England. In England, you have what is called the Crown Prosecution Service; it is headed by the Attorney-General. It is a highly organised and proficient prosecution service. Before they go to court, the evidence must be good. Crown Prosecution Service is no child’s play, but the ministry of justice, with due respect to them because they are my friends, is not just working. So you have no result from the fuel subsidy scam because the prosecutorial skill is weak.
Do you think a good use can still be made of the House of Representatives report on the subsidy probe?
The House of Representatives report on subsidy is what informed the EFCC probe, so I think they have exhausted their own part – they have done their own bit and the names they have sent to EFCC are the ones the EFCC is now required to technically examine; so you don’t waste time prosecuting a person who turns out to be innocent.
I have also discovered from my years of experience that there is always public sentiment in everything such that while the fuel scam was a huge thing, I was shocked to be informed, even though I still don’t believe, I thought that the entire scam was as big as ninety percent, but that should have been the first thing that the EFCC should have deciphered so that we know who to concentrate on, so that there is no need to work on a large number of files if most of the files will not yield result.
Nigeria has been repeatedly ranked among most corrupt nations in the world. How do you think the Federal Government can tackle corruption?
First is the will – to have the desire inside. You must desire it from the inside. I want to be a lawyer, I must desire it. When that desire is there, then we must translate it by asking the right questions. Now, a right question will be how do we mount an effective anti–corruption campaign? What do we have as our anti-corruption campaign? My good friend, Larry Diamond, one of the world’s leading professors on this subject, when he gave a lecture on this topic; what rangs in my ear was when he said “perception”, you know perception is almost like fear.
There is a perception that if you move about in the night, you will be attacked. You may not be. So, you will say are you going out in the night? Don’t go! So there must be a perception that engaging in corrupt practices will land you in jail. In England, it is known and the thing is not to be caught, but if you are caught you are gone. But here in Nigeria, whether you are caught or not, nothing happens to you. I have seen many people – a man who is under-going trial and who is flying around in private jets.
But if the perception is right, many people facing trial, just going around at parties, entering planes and living life as if nothing happened won’t be doing that. That is the challenge, but if that perception is there, many people who have done the wrong things would actually by now be in jail and you wouldn’t even see them because they will be so ashamed. Another thing is to have the tools. If you don’t have the tools, you can’t do it. In Nigeria, there is no quest for excellence. Nobody cares. I have not seen serious attempt by the law enforcement agencies to competently prosecute offenders.
For instance, if the EFCC is competent in their operation, they will know the right court to go. The question is, why is the EFCC prosecuting in the name of the Federal Republic of Nigeria in a Lagos State court? And you may ask: did Lagos State take those who take money from the treasury to the Federal High Court in Abuja? Why should they say that they don’t have faith in the Federal High Court which is the correct court?