Having been charged under the Penal Code, the EFCC comfortably tied the hands of Justice Talba. The judge could have even decided to sentence the felon to 3 days in prison if he so desired or give him the full two years or an option of a fine.
The Yoruba, like other typical African tribes, love to preserve wisdom in beautifully woven words. The average Yoruba person would be familiar with ‘ètè àti làpálàpá’. Ètè and làpálàpá are the Yoruba words for leprosy and ringworm respectively. There are many ways the ètè’ and ‘làpálàpá combination could be used. One which came to me recently is the extended version that introduced a third element – ‘iroré’. Now, iroré is the Yoruba word for pimple. It was one of my big egbons (brothers) that used to combine the three. He would say “bi gòngòsú bá f’ètè sílè pa làpálàpá tán, áwá k’áramó iroré pípa”. Translated loosely; a fool that expends crucial energy on curing ringworm when the affliction was leprosy would soon focus greater energy on the treatment of pimple while his leprosy festers. The “iroré pípa” portion is the way I have come to understand the unending cycle of reactions of Nigerians, particularly from those who ought to know better, but who chose to sensationalize, or in the least, treat mere symptoms rather concentrate energy on our core maladies.
A case in point is the recent judgment on January 29 of a Federal High Court, Abuja, presided over by Justice Abubakar Talba, in the corruption case filed by the Economic and Financial Crimes Commission (EFCC) against John Yakubu Yusuf, a former assistant director at the Police Pension Office, who connived with others to steal N27.2 billion police pension funds. As we like to do in science, my first reaction was to get all the facts (at least those ones in the public domain) so as to be well informed and in order not to follow the multitude to commit the folly of misinformation. According to various reports, the amount the EFCC traced to Yusuf and for which he pleaded guilty was N3.3billion described “as his share of the loot” (Please see the Punch Editorial, February 6, 2013). His fellow travellers are being tried for their various shares of the N27.2bn loot. In the judgement, Justice Talba ordered the forfeiture of all choice properties, 32 houses in all, traced to Yusuf in Abuja which were considered the proceeds of his crime as well as a sum of N325million traced to bank accounts owned by him. The judge then pronounced him guilty (Yusuf so pleaded anyway) and sentenced him to 2 years concurrent prison terms for the three offenses with an option of a fine of N750, 000.
The reactions that followed were predictable. The judge has been blamed for the judgment and has been called names. A protest was quickly put together by Hon. Dino Melaye to compel the Chief Justice of the Federation to intervene and ensure ‘the injustice was corrected’ while one report by the International Centre for Investigative Reporting (ICIR) was even titled “How Judge Tricked EFCC To Free $203 Million Pension Fund Thief” effectively casting the judge as the mastermind. The facts however violently disagree with the position of these individuals and groups. It is even credible to surmise that the story is deliberately being told this way, taking advantage of the predictable mood of the people, in order to hide the real culprits. Unfortunately for judges, nobody tells their stories – especially in a judicial system that we all know is hardly independent or designed for justice.
Section 309 of the Nigerian Penal Code under which the EFCC elected to try Yusuf states: “Whoever commits criminal misappropriation shall be punished with imprisonment for a term which may extend to two years or with a fine or with both.” Having been charged under the Penal Code, the EFCC comfortably tied the hands of Justice Talba. The judge could have even decided to sentence the felon to 3 days in prison if he so desired or give him the full two years or an option of a fine. It is thus elementary that the judgment was legitimate i.e., it is not a miscarriage of justice within the meaning, letters and intent of the laws of Nigeria. Whether our laws should be like this is however a different issue entirely and I have reserved that for the latter part of this essay. That the judge ordered a confiscation of all choice properties traceable to Yusuf, 32 houses in all, indicates that he already retrieved for the pensioners the portion of their money stolen by the convict.
Curious Nigerians can only continue to speculate on why the EFCC decided to prosecute the then accused person under the Penal Code as against the EFCC Act. In a country where ‘nothing goes for nothing,’ such speculations and conjectures would be appropriate and sensible. The Punch newspaper in that 6th of February editorial rhetorically asked “What prompted the EFCC to opt for a plea bargain in the first place when the case was an open-and-shut one? The paper trail of the N27.2 billion was well documented, requiring no extraordinary detective work to prove.” Having claimed that it had smoking gun evidence against the culprit, it is commonsensical to expect that the EFCC would bring its full weight upon the culprit. It cannot claim it opted for the Penal Code because it was saving money for the federation since the agency is not known to return unspent money to the purse of the Federal Government. Also, the EFCC cannot claim that the judge breeched a prior plea bargain deal because the current rule on plea bargain requires the authority of the Attorney General of the Federation which has been reported to be absent in this instance. So, the EFCC, for reasons best known to it, hobnobbed with the felon, set up a deal and approached the Judge on its own freewill with the plea to amend its charges. The ICIR report confirms this when it says “Our source disclosed that when the two parties (EFCC and Yusuf) reached an agreement on the details of the deal, they approached Justice Talba.”
Judges are humans. If the prosecuting agency is begging a judge that it wanted less penalties not more than two years or an option of a fine (this is the correct and non-emotional interpretation of the EFCC action when it chose to try the accused under the penal code), then the worst the judge could do was to order a seizure of all that Yusuf made from the money stolen from pensioners, if only to secure justice for those pensioners. Perhaps if other previous convicts who took refuge under the ‘arranged in the dead of the night plea-bargain deals’ were made to forfeit all they acquired as Justice Talba ordered in this case, they would not have mansions in South Africa where they could continue to host top government functionaries.
A leprous justice system
The law is often said to be an ass. It is however my opinion that the real ass is the entire Nigerian justice system. By the justice system, I mean the judiciary, the executive’s role in making of rules and the legislature’s duty of lawmaking – and not just the judiciary. The judiciary is a reflection of what the Executive and Legislative arms of government have made of it. Ours is a judicial system that is only suitable for the Stone Age. The laws the judges are expected to work with are laden with so many contradictions that a judge is forced to rely on his wit most of the time. In saner climes, the laws are designed in such a way that the rules are applicable across the board equitably. It is because the Nigerian justice system is such an ass that an agency like the EFCC can decide on its whim to try culprits as it deems fit using double standard based upon the ability of each suspect to negotiate a deal. What happens to accused persons that do not have the right connection or ability to negotiate? By tacitly begging the judge to tone down justice against the culprit when it sought a trial under the penal code which only empowered the judge to convict the culprit for a few days (if he so desired) or fine him, the EFCC set the judge up from the beginning – creating a ceiling or limit of justice for the Nigerian people.
Attempts by the EFCC to distance itself after the judgment were mere well calculated high wire PR stunts targeted at deceiving the people and cast the judge as the villain in a script where the EFCC is unquestionably the bad guy. This agrees with the position of Jibrin Okutepa SAN who said those who arraigned Yusuf under that law should be blamed and stressed that “it was not possible for the judge to use his discretion in passing judgment… No judge, however powerful, is allowed, under the law, to substitute his feelings for the provisions of the law in sentencing and convicting an accused person. If it was a Magistrates’ Court, you won’t have more than a fine of N20,000 under the same law that Yusuf was convicted by Justice Talba in the High Court.”
However, like I implied at the opening, even the EFCC would never be my object of intense condemnation. The agency is only the ‘lapalapa’ (ringworm) in the rotten mess of a leprous justice system. The real denunciation should be targeted at leaders of the various arms of government who refuse to put in place a justice system that can truly serve the interest of the Nigerian people.
The most well-informed view on this subject is the one expressed by the Socio-Economic Rights and Accountability Project (SERAP) that the government and not the judge should “be blamed for putting unregulated plea bargaining procedure at the heart of its fight against corruption while at the same time ignoring to establish sound legal framework to regulate the practice so that our courts are able to deliver true justice for the victims of large-scale corruption in the country… An important element of justice is missing when the accused and the government believe a plea bargain is fair while judges lack the necessary legal tool and mandatory guidelines upon which to decide and render true justice. Once the legal framework is there, judges will have to live up to citizens’ expectation that the courts will apply and interpret the law reasonably and consistently”.
Even if there are a few exceptions, there is no basis to generalise that Nigerian judges will not rise to the occasion if the rules were equitable and the framework without ambiguities. One can remember for instance that Justice Abubakar Talba it was who ruled against a sitting President Umar Yar’ Adua in the wake of the latter’s effort to gag the media from reporting the state of his health in 2009 (See Yar’Adua versus Leadership).
An outsider who has never been an organic part of the Nigerian society may be tempted to conclude that the most vocal of the people agitating for a better Nigeria are in fact working hands in glove with those who have sworn to ensure the nation never thrive. This is the only available explanation for the tendency to pander to sensationalism when we should be canvassing for the need to uproot and overhaul the entire criminal justice system that is being taking advantage of by law enforcement agencies and accused persons. This is the way to protect our judges and ensure they are properly shielded from agencies or persons that may seek to use them as pun in the sophisticated game of corruption blame casting. A case to watch is the recent re-arraignment of a former minister, Femi Fani-Kayode. My basis for bringing this up is not to comment on the merit of the case as I am incompetent to do so (the former minister has variously maintained his innocence). However, according to Ben Ezeamalu of PREMIUM TIMES and Ade Adesomoju of PUNCH, the trial judge, Justice Rita Ofili-Ajumogobia, warned the EFCC that its “charges were not properly drafted and may need to be amended” – an advice the EFCC immediately rejected insisting that there was nothing wrong with the charges it filed against the ex-minister (See PREMIUM TIMES, February 11 2013 and PUNCH, February 12 2013). One does not need an Ouija disc to know that another Nigerian judge is again being set up as the baddy.
Tunji is a policy chair with the NDi.