“So to give him 13 years is savage and malicious. It looks as if the British government is taking it personal. He is going to return all the assets in question. I am not saying he shouldn’t be punished, but there should human face in the punishment.”
Professor Itse Sagay (SAN)
One of the perennial and perpetual conflicts in the world of legal jurisprudence is the evident chasm between law and morality, the harsh dictates of applying the cause of justice versus the graceful compassion of an erudite sitting judge. Indeed, for the British and more specifically English, such conflicts in the dispensation of the rule of law, led to the separation and eventual formation of the Courts of Equity, as a distinct temple of justice, apart from the original Common Law Courts, the idea being the insertion of human element in the austere provisions of law, as against the normal application of timeless legislative postulations.
For every student of the Nigerian legal system, with sufficient familiarity in our law of contract, the name of Itse Sagay is synonymous with the intricate principles of a Legal Binding Agreements, the fundamental ethos of which is the honorable resolve of a gentlemen adhering to a signed and sealed promise. Thus, when such an individual, despite all the universal acclamation of the judgment, condemned the sentencing of James Ibori, as an exercise in premeditated travesty of justice, the world, and indeed the nation needs to listen, even more so as he is a favored member of the silk shirts, otherwise called the Senior Advocates of Nigeria.
As Justice Marcel Idowu Awokulehin, the judge who acquitted Chief James Onanefe Ibori would wont to say, under our distinctive territorial jurisdiction, the essential demands of satisfying the burden of proof are quite different, for while an accused in Nigeria must be proven to have committed an infraction of the law beyond reasonable doubt, under the British system of the administration of justice, all that is required to be proven is essentially the probable commission of an offence.
Indeed one of the apparent confusion with the judgment, and technically with the accompanied condemnations of the sentencing, is the presumption of an attempt to severe the umbilical cord between the Nigerian legal system and its common law progenitor, since, as we all know, the historical source of Nigerian laws are the norms of common English tradition.
Thus, in a circumstance which compels the application of different legal facts, people are expectedly pondering whether the right course of justice has been diligently followed, more so as the Nigerian has the dubious image of a corruption society notorious for subverting the rule of law. This is further compounded by the fact that the original crime was committed within the jurisdictional confines of Nigerian state despite the fact that the huge and unaccountable money transfers breeched the existing monetary laws of the United Kingdom. In a manner of speaking, therefore, the context of the crime remained singularly against the Nigerian people.
The jurisprudential difference exhibited from the case aside, the points of convergence between the unsuccessful execution of the process in Nigeria, and the successful interdiction in Britain are as follows: the evidence presented before the judge, the personality standing trial, and the inferred motive of a crime against the Nigerian people. To be sure there are interesting points and lessons. For instance, while the Economic and Financial Crimes Commission of Nigeria, built the core of its case theft and fraudulent stealing of government funds, the British premised their conviction on attempted money laundering offense. Obviously, proving the act of criminal stealing is a much tougher take. For one, it requires not only the proof of the removal of such funds from its legitimate accountable place of abode, but the prosecutor must also show that the intention of movement of the funds was with criminal motive of fraud.
In the case of the British charge of money laundering, no such tedious requirement is needed, in so far as the funds in question were moved to the British banks and the accused individual in question, cannot validly account for the funds under the expectation of his or her legal income. Simply put, an individual on an annual income of less than a million dollars, cannot legally launder hundreds of millions of dollars without showing cause as to how he came into ownership of such funds. To this extent, therefore, the burden of proof shifts to the defense, as against the Nigerian norm where it is the prosecution that is burdened with the obligation of prove.
Thus taking the case on the premises of its facts, which is purely amoney laundering conviction that was obtained on the basis of a pleadeal upon a convict that has accepted guilt, and by so doing has saved the court the hardship of a long and costly trial, the sentencing of 13 years is certainly not justifiable. Further, as a trial court is not only a temple of affirming the moral ethos of the society, but an avenue and a platform to deliver justice according to the proportion of an offense, which in these instant case is not really an act of theft, but an illegal transfer of unaccountable funds.