“It’s like the Defence Ministry outsourcing hiring of soldiers to protect the country.”.
Inside a crowded court room at Ikoyi, Lagos, a furious judge vented his anger at the Economic and Financial Crimes Commission, EFCC, for frustrating the trial of the Speaker of the Lagos State House of Assembly.
Justice Okechukwu Okeke, wondered why the commission would “deliberately act” to delay the trial of Adeyemi Ikuforiji after 13 months.
The judge, who retired on May 18, adjourned the trial indefinitely.
“Whenever the prosecution is ready to diligently handle their case, hearing notices will be issued,” Mr. Okeke said.
The EFCC’s handling of the Lagos Speaker’s trial elicited concerns from analysts who question the federal government’s continued use of private lawyers to prosecute cases at the court.
The use of private counsels gained its roots during the military era when the military rulers sought to buy private lawyers to their side by “throwing juicy briefs at them” according to Jiti Ogunye, a Lagos based lawyer.
“It is inappropriate. It is tantamount to abuse of office,” Mr. Ogunye said.
The trial of Mr. Ikuforiji began in March 2012; but a series of – and sometimes frivolous – adjournments dogged the trial.
Last November, Godwin Obla, the lead prosecution counsel, forced the judge to adjourn twice after he failed to appear on the scheduled dates.
One year after Mr. Ikuforiji’s trial, the prosecution had called just one witness.
The judge, knowing that his retirement was at hand, fixed about 10 consecutive trial days, a move that saw Mr. Obla withdrawing from the case citing his commitment in other courts.
The Department of Public Prosecution, DPP, of the Federal Ministry of Justice is saddled with, among other functions, public prosecution of accused persons in all court of competent jurisdiction.
The department, headed by a director, is also expected to give legal advice to the Nigerian Police and other law enforcement agencies, ministries, and extra-ministerial departments.
Mr. Ogunye said that the DPP is supposed to handle litigation cases of the federal government.
“The practice (of using private lawyers) is, in itself, undermining the institutional capacity of the Federal Ministry of Justice who have offices with lawyers who are supposed to horn their skills,” he said.
On February 22, Justice Mohammed Idris of the Federal High Court, Lagos, compelled the Attorney General of the Federation, AGF, to disclose the list of criminal prosecutions carried out by the Ministry of Justice through private lawyers.
Chuks Nwachukwu, who represented the Progressive Shareholders Association of Nigeria, who sought the information at the court, said that the danger of the AGF’s practice of using private counsels is that the country loses public competence in the prosecution of crimes.
“Our officers are sitting idle while prosecutions are being given to private legal practitioners,” said Mr. Nwachukwu.
“And mind you, it is unconstitutional, it is immoral. Many lawyers do not understand…., they say it’s a brief, it’s Attorney General’s fiat.
“But that is not Attorney General’s fiat according to the Common Law. It’s an abuse of that power which the Attorney General has under the Common Law to empower a private person to prosecute a crime on behalf of the public,” Mr. Nwachukwu said.
Mr. Nwachukwu added that the power does not mean that the Attorney General is hiring a counsel to do his job.
“The power is that the Attorney General is empowering a private person who otherwise has no locus in law to prosecute an offence which is deemed against the state and not against him as a private person; but he is interested in fighting a public cause,” said Mr. Nwachukwu.
“So the Attorney General now lends him his name for him to be able to have the standing to prosecute that cause which he feels passionate about. So the expense of prosecution is borne by him. It’s not borne by the state.
“But what they are doing now is the Attorney General hires counsel and pays him outrageous sums of money from the public purse for him to do the job that the public has hired the Attorney General to do. That is corruption,” Mr. Nwachukwu added.
Bamidele Aturu, a lawyer, noted that private lawyers commonly appearing in public cases at the Supreme Court seem to have endorsed the practice.
“The truth of the matter is that nothing in the law that forbids the office of the AGF to prosecute cases using private lawyers,” said Mr. Aturu.
In addition to demanding that the list of private lawyer be made public, Justice Idris also ruled that the AGF disclose the reason for using private lawyers as well as the cost of hiring them.
Since the judge’s ruling three months ago, the AGF has remained silent on the directive.
Critics say the AGF uses the practice to reward his cronies and friends.
“It is not helping us. If the AGF does not have the expertise, it should be clear,” Mr. Aturu said.
“The practice has been long, but not as rampant as this. Every mundane case now is outsourced to cronies and friends of the AGF,” he added.
Phone calls and text messages to Ambrose Momoh, the AGF’s Spokesperson, were neither responded to nor replied.
Mr. Ogunye said that the Ministry of Justice could pay a private counsel “as much as N50 million” to prosecute a case.
“Outside their salary they have a budget for hiring lawyers. It’s like the Defence Ministry outsourcing hiring of soldiers to protect the country,” said Mr. Ogunye.
PUTTING AN END
While Mr. Aturu called on the Supreme Court for clarification, Mr. Ogunye blamed the leadership of the bar for allowing the practice to thrive.
“Those who can stop it are those who are benefiting from it most, that’s the leadership of the bar. It’s for the bar to say that this is killing the Ministry of Justice,” said Mr. Ogunye.
Monday Ubani, Chairman of the Ikeja branch of the Nigeria Bar Association, disagreed with Mr. Ogunye, arguing that it is a lawful practice.
“The constitution empowers the Attorney General to initiate and carry out criminal cases against suspected offenders. He can do this personally or through public or private lawyers,” said Mr. Ubani.
“But is it healthy especially in the light of several government lawyers who are idling away while private lawyers are kept busy by the office of the Attorney General? My answer is that it is not healthy,” Mr. Ubani added.
While Mr. Ubani admitted that the use of the private lawyers by the AGF have not been justified in terms of the success of prosecuted cases.
“I do not know whether the leadership of the bar allows it because they are benefiting from it. I do not have my facts on that. But I think that the bar should speak up and on time too concerning this practice that has not benefited the country,” he said.