By Awa Kalu, SAN
In the first part of this article, published on 31st January 2019, we drew attention to the fact that according to various sources and particularly the Black’s Law Dictionary, corruption is symptomatic of depravity, perversion or taint and may suggest an impairment of integrity, virtue or moral principle, especially the impairment of a public officer’s duty by bribery. What this wide ranging definition means is that the war against corruption itself must be faithfully fought with some transparency and visible humaneness. Innocent bystanders may not be unanimous in deciding whether or not the war against corruption has been purposeful, transparent and even-handed in its prosecution.
This war ought not to be interpreted in the likeness of the African proverb concerning; “arming the tortoise with a knife and providing a tuber of yam, expecting the tortoise to be equitable in cutting the yam and distributing it.” A survey of a few events in the past few years would give the reader an indication of what the proverbial tortoise has done with the tuber of yam.
Sometime in 2015, the former National Security Adviser, Colonel Sambo Dasuki (rtd) was charged with the unlawful possession of firearms and was remanded in custody. Dasuki, according to facts in the public domain, has by order made by courts of competent jurisdiction been granted bail on terms which he has reportedly met. However, the Federal Government has failed, neglected or refused to obey any of the orders. The prosecution of any person who allegedly has committed an offence, against either the laws made by the Federal Government or by any State for that matter, places a burden on the prosecution as well as on the defence to obey all such orders as are made by the court, in order to smoothen the playing field for the administration of criminal justice.
It seems to us that it will not augur well for the war against corruption, for any government to arraign before a court any person who has allegedly committed an offence, and then to hold that person captive after an order for bail has been granted. Its wider implication is that the prosecution for a crime is a license to take a person’s personal liberty, which is guaranteed by the extant Constitution, away without due process of law. To eat one’s cake and still have it, is a fiction unknown to mankind. Accordingly, once the government, a corporation or private individual, resorts to a court of law and surrenders to its jurisdiction, what the rule of law requires is unbridled acquiescence to orders made in the course of judicial administration of justice.
Fidelity to law is an undisguised element in the successful prosecution of the war against corruption. What has posed a challenge for the war against corruption is the pretence that the bigger the animal that the hunter catches, the more potent and successful the hunter would become. Our experience of arresting and arraigning only big ‘animals’ is the extreme heat that such arrest has often generated. For the better part of the year 2017, the country watched the drama of an attempt to bring the Senate President, Bukola Saraki to book, for an alleged failure to declare his assets.
What the records show, is that on each occasion when the Senate president was to appear at the Code of Conduct Tribunal, CCT, legislative business at the Senate of the National Assembly came to a standstill, and political watchers as well as commentators, came to the conclusion that Saraki’s arraignment was a political war in disguise. It is for this reason that it was said that, the decision to prosecute, which is made by a prosecutor, such as the Attorney-General, is not an easy one. Sir Elwyn Jones, one time Attorney-General in Britain stated with emphasis that:”the decision when to prosecute, as you may imagine, is not an easy one. It is by no means in every case where the law officer considers that a conviction ought to be obtained that it is thought desirable to prosecute. Sometimes, there are reasons of public policy which make it undesirable to prosecute the case.
Perhaps, the wrongdoer has already suffered enough. Perhaps, the prosecution may enable him present himself as a martyr. Or perhaps, he is too ill to stand his trial without great risk to his health or even to his life. All these factors enter into the consideration.” The exercise of the discretion on whether or not to prosecute is one that goes on from time to time.
In a great debate in the British House of Commons, Sir Hartley Shawcross noted that: “the truth is that the exercise of a decision in a quasi-judicial way as to whether or when I must take steps to enforce the criminal law is exactly one of the duties of the office of the Attorney-General. …It has never been the rule in this country – I hope it never will be – that suspected criminal offences automatically be the subject of prosecution.
The public interest…is the dominant consideration.” Elaborating on that theme, the former Attorney-General emphasized that:”It is not always in the public interest to go through the whole process of the criminal law if, at the end of the day, perhaps because of mitigating circumstances, perhaps because of what the defendant has already suffered, only a nominal penalty is likely to be imposed….
It is the duty of an Attorney-General in deciding whether or not to authorise a prosecution to acquaint himself with all the relevant facts, including for instance, the effect which the prosecution, successful or unsuccessful as the case may be, would have upon public morale and order.”
What lends credence to the suspicion that the Senate President was being harassed for political reasons, was the subsequent allegation that he either aided or abetted a bank robbery in Offa, Kwara State. The police, who chose to try the Senate President in the media was not totally convincing in providing facts that cleared the impression that the entire operation was calculated to “pull him down.” Prosecution, for the purpose of pulling any person down is not one that may be justified in the public interest.