THEME: THE NIGERIA OF OUR DREAMS
BEING PAPER PRESENTATION BY LAYI BABATUNDE, SAN; AT THE ALAO AKA BASHORUN MEMORIAL LECTURE AS PART OF THE NIGERIAN BAR ASSOCIATION, IKEJA BRANCH LAW WEEK 2021.
TOPIC: OUR ROLE IN THE EFFECTIVE OF NIGERIA’s ANTI-CORRUPTION LAWS.
“Your laws are ineffective, when declared. Why? Because no system of control will work as long as most of those administering the law against an evil have more than a finger dipped into it themselves.”- Han Suyin, Chinese physician and writer Destination Chungking (1942)
Late Alao Aka Bashorun, Legal prodigy and president (1987-1989) of the Nigerian Bar Association (NBA) deserves every accolade and every avenue designed to celebrate his times and momory.
Alao Aka Bashorun went beyond body language in standing tall against corruption He fought against impunity and Corruption which the military indulged in almost as of right. His Heart was with the masses of our people epitomizing the call of one of our founding fathers on us, late Christopher Alexandar Sapara Williams, who was reputed to have declared:
“The Legal Practitioner lives for the direction of his people and the advancement of the cause of his country”
Alao Aka Bashorun, our Legal icon not only did just that, he died for it. His greatest weapon, was his moral authority which made the Bar respect his views and honoured his leadership through co-operation. The NBA secretariat on Adeola Hopewell rightly named after him, was built under his watch on contractor – Finance basis, thereby solving a long standing challenge to the Bar at minimal cost to it.
“When we say a patriot is one who loves one’s country” ran the voice of Justice Windom “What kind of love do we mean? A love we can throw on a scale and see how much it weighs? A love we can take apart and see how it ticks? A love where with a yard stick we record how long, high, wide it is? Or is a patriot’s love of country a thing invisible, a quality, a human shade and breath, beyond all reckoning and measurement? These are questions. They are as old as the time of man. And the answer to this, we know in part. For we know when a nation goes down and never comes back when a society or a civilization perishes, one condition may always be found. They forgot where they came from. They lost sight of what brought them along. The hard beginnings were forgotten and the struggles farther along. They became satisfied with themselves. Unity and common understanding there had been, enough to overcome rot and dissolution, enough to break through their obstacles. But the mockers came. And the deniers were heard. And vision and hope faded. And the custom of greeting became “What’s the use?” And men whose forefathers would go anywhere, holding nothing impossible in the genius of man, joined the mockers and the deniers. They lost sight of what brought them along. You may bury the bones of men and after dig them up to find they have mouldered into a thin white ash that crumbles in your fingers. But their ideas won. Their visions came through. They ought not to be forgotten – the dead who held in their clenched hands that which became the heritage of us the living”.
Being called upon to deliver a paper, at this event, as part of the activities marking the NBA Ikeja Branch 2021 Law Week activities is both an honour and a challenge given the Topic I have been asked to speak upon. The issue of corruption is as old as our country. We have never being short of seminars symposia and several forums of discussion on the debilitating subject of corruption and the incalculable harm it has done and continues to do to our country. Indeed, when the military first intervened in our country’s political affairs, the consequences which we still suffer from, their justification for the coup was captured thus:
“Our enemies are the political profiteers, the swindlers, the men in high and low places that seek bribes and demand 10 percent; those that seek to keep the country divided permanently so that they can remain in office as ministers or VIPs at least, the tribalists, the nepotists, those that make the country look big for nothing before international circles, those that have corrupted our society and put the Nigerian political calendar back by their words and deeds.
2.2.2 Indeed, one of the earliest attempts to checkmate corruption through Legislation in Nigeria is the Northern Nigeria Customary Presents order 1955. This is the precursor to S. 6(3) of the Code of Conduct for public officers contained in the First Schedule to the 1999 Constitution (as altered). The Section provides:
6. (1) A public officer shall not ask for or accept property or benefits of any kind for himself or any other person on account of anything done or omitted to be done by him in the discharge of his duties.
(3) A public officer shall only accept personal gifts or benefits from relatives or personal friends to such extent and on such occasions as are recognised by custom:
Provided that any gift or donation to a public officer on any public or ceremonial occasion shall be treated as a gift to the appropriate institution represented by the public officer, and accordingly, the mere acceptance or receipt of any such gift shall not be treated as a contravention of this provision.
So its obvious that the battle against corruption has been long drawn and in some cases bloody in Nigeria.
2.2.3 Corruption Defined:
The Home page of ICPC contains this troubling reminder:
“Corruption in Nigeria undermines democratic institutions, retards economic development and contributes to government instability. Corruption attacks the foundation of democratic institutions by distorting electoral processes, perverting the rule of law, and creating bureaucratic quagmires whose only reason for existence is the soliciting of bribes.”
According to the authors of “Corruption and misuse of public office”:
The word ‘corruption’ is derived from the Latin word ‘corruptus’ meaning to break. Its derivation emphasizes the destructive effect of corruption on the fabric of society and the fact that its popular meaning encompasses all those situations where agents and public officers break the confidence entrusted to them.
Chijioke Kelechi Iwuamadi offers this explanation on corruption and its debilitating effect
“corruption has a significant negative impact on economic growth in Nigeria; it undermines the prospects for economic investment. By offering bribes to secure business, national and international companies undercut legitimate economic competition, distort economic growth and reinforce inequalities. Although the business (and the corrupt official) may gain in the short run, the bribe payment shifts money away from potentially productive investments. These noneconomic transaction costs keep the level of enterprise development low relative to those enterprises that are able to invest in growing their business. To generate national economic growth, businesses must use their capital resources productively. When capital is drawn away into non-economic transactions, this negatively affects enterprise growth as well as the marketplace in general. Corruption distorts growth incentives also by forcing out potentially better producers of goods or services. Since the majority of businesses in Nigeria are small and medium size enterprises (SMEs) who employ more than 90% of the workforce”. It is therefore not out of place to conclude that the large population of our unemployed, particularly the youths bears a direct correlation to our endemic corruption.
2.2.4 Legislations on corruption
1) The Economic and Financial Crimes Commission (Establishment) Act, 2004.
2) The Constitution of the Federal Republic of Nigeria, 1999.
3) Independent Corrupt Practices and other Related Offences Act.
4) Money Laundering Act 2004.
5) Money Laundering (Prohibition) Amendment Act, 2012.
6) Code of Conduct Act.
7) Nigerian Extractive Industries Transparency Initiative Act.
8) Freedom of Information Act, 2011.
9) Fiscal Responsibilities Act, 2010.
10) Penal Code, Laws of the Federation of Nigeria 2004.
11) Criminal Code, Laws of the Federation of Nigeria 2004.
12) Administration of Criminal Justice Act, 2015.
13) Public Procurement Act, 2007.
14) Advance Fee Fraud and other related offences Act, 1995.
15) Failed Banks (Recovery of debts) and Financial malpractices in Banks Act
16) Miscellaneous offences Act.
A brief comment on some of these Legislations, relative to the role of the Legal Practitioner will suffice. The most prominent of these legislations; are the Economic and Financial Crimes Commission Establishment Act and the Corrupt Practices and Related Offences Act. We will focus more on these two.
2.2.5 Economic and Financial Crime Commission (Establishment Act, 2004)
The EFCC Act was first enacted in 2002, re-enacted in 2004. The Bill for the 2004 version was passed into law on the 23rd March, 2004 by both the House of Representatives and the Senate. The then president, Chief Olusegun Obasanjo assented to the bill on the 4th day of June 2004, thereby culminating into the enactment of the Bill into an Act of the national Assembly. It was consolidated along with other enactments in the 2004 and 2010 editions of the Laws of Nigeria.
The Act has 47 (forty-seven) sections, divided into seven parts. The seven parts covers the following topics:
1) The Establishment of the Economic and Financial Crimes Commission Etc., (sections 1-5);
2) Functions of the Commission (Sections 6-7);
3) Staff of the Commission, (sections 8-13);
4) Offences (Sections 14-27);
5) Forfeiture of Assets of Persons Arrested under this Act (Sections 27-34);
6) Financial Provisions (Sections 35-37); and
7) Miscellaneous provisions (Sections 38-47).
The Act provides for the establishment of the economic and financial crimes commission charged with the responsibility for the enforcement of all economic and financial crimes laws in Nigeria, among others. Section 7(2) vests the commission with the power to coordinate the enforcement of the following legislation:
a) Money Laundering Act, 1995
b) Advance Fee Fraud and other related offences Act, 1995
c) Failed Banks (Recovery of Debts) and Financial Malpractices in banks Act,
d) Banks and other Financial Institutions Act, 1991, 2007
e) Any other law or regulation relating to economic and financial crimes including the Criminal and Penal Code.
In summary, the Act provides for the establishment of the Economic and Financial Crimes Commission charged with the responsibility for the enforcement of all economic and financial crimes laws, among others. The offences created by the Act form the basis for the fight against official corruption by successive regimes at the federal level. The offences include terrorism financing, false information in financial crimes, economic and financial crimes. Penalties are also clearly specified. The Federal High Court exercises sole jurisdiction in relation to the provisions of the Act. And there are provisions for all the offences including forfeiture provisions.
The Act also provides for the establishment of special units, etc., Special duties of the Units, Offences relating to Financial Malpractices, Offences in relation to terrorism, Offences relating to false information, Retention of proceeds of a criminal conduct, Offences in relation to economic and financial crime and penalties, and Jurisdiction and special powers of the Court.
The Act makes comprehensive provisions for forfeiture of assets illegally acquired with proceeds of crime. These provisions are: Forfeiture of property, Foreign assets, Forfeiture of passports, Property subject to forfeiture, provisions at the forfeiture of property and Seizure of property. Others are: Disclosure of assets and properties by an arrested person, etc., Investigation of assets and properties of a person arrested for an offence under this Act etc., Interim forfeiture order, Final order, Final disposal of forfeited property, Offences in relation to forfeiture orders, Consequences of an acquittal in respect of assets and properties, Freezing order on banks or other financial institutions, Funds of the Commission, Accounts and audit, Annual report. Other provisions covers: Power to receive information without hindrance, etc., Protecting informants and information, etc. and penalty for false information, Appeals against interlocutory rulings, etc., Immunities, General savings, Interpretation, Short title, Regulations, Schedules and Repeal of Act No. 5, 2002.
2.2.6 Corrupt Practices and other related Offences Act
This Act was first enacted on 13th June 2000 as Act No. 5 of 2002, though subsequently amended and consolidated. It is an Act to prohibit and prescribe punishment for corrupt practices, and related offences. (see the Long Title to the Act).
The Act is structured into seventy-one sections divided into eight main divisions. The Divisions are:
1) Short Title and Interpretation
2) Establishment of ICPC
3) Offences and Penalties
4) Investigation, Search, Seizure and Arrest
5) Provisions Relating to Chairman of the Commission
7) Prosecution and Trial of Offences
The Act established the Independent Corrupt Practices and other Related Offences Commission (ICPC) and vested it with duties relating
(a) Prosecuting corrupt public officers;
(b) Developing Procedures for Prevention of Corruption in the public sector;
(c) Rendering advisory role on reduction of corruption in government agencies
(d) Providing advice to heads of government agencies on reduction of corruption
(e) Enlisting and fostering public support in combating corruption.
Sections 8-26 provide for offences and penalties. Most of the offences revolve around abuse and misuse of public offices and corrupt influences on public officers by private citizens. Sections 27-42 provide for investigation, search, seizure and arrest of suspects of corrupt practices. The office of the chairman takes sections 43-52. Evidential matters are contained under section 53-60. Prosecution, Trial and related procedural matters are provided for under sections 61-64, while sections 65-71 provide for what the drafter described as “General”.
The contents of the Act further outlined under the arrangement of sections as follows: The ICPC Act contains the following provisions: Short Title, and Interpretation.
2.2.7 Establishments of Commission, Appointments and Powers provisions
The provisions relating to institutional frame and administrative structure under the Act are clear. They are: Establishment of the independent Corrupt Practices and other Related offences Commission and Appointment of Chairman and members of the Commission, Appointment of other officers of the Commission, Powers and immunities of officers of the commission, Duties of Officers of the commission, and Standing Orders.
2.2.8 Offences and Penalties under the Acts
The Act provides for a long list of offences. It is important to have an idea of them. they are: Offence of accepting gratification, Corrupt offers to public officers; Corrupt demand by persons; Counselling offences relating to corruption; Fraudulent acquisition of property; Fraudulent receipt of property; Penalty for offences committed through postal system; Deliberate frustration of investigation by the Commission; Making false statements or return; Gratification by and through agents and definition of agents; Bribery of public officers; Using office of or position for gratification; Forfeiture of gratification and other penalties; Bribery in relation to auctions; Bribery for giving assistance, etc., in regard to contracts; Duty to report bribery transactions; Dealing with property acquired through gratification; Making false or misleading statements to the Commission; and Attempts, conspiracy punishable as offences.
2.2.9 Investigation, Search, Seizure and Arrest are also provided for under
The procedure for initiation of an anti-corruption action against a suspect are outlined: Power to investigate reports and enquire into information; Power to examine persons; Power to summon persons for examination; Form and endorsement of summons; Service of summons; Substituted service; Acknowledgement of service; Punishment for evasion of service; Failure to appear after receipt of summons; Authority to issue warrant and to search premises; Seizure of property; Custody of seized property; Disclosure of otherwise privileged information; Legal obligation to give information; Obstruction of inspection and search; Bail of offenders and release of property.
2.3 Provisions Relating to Chairman of the Commission
The office of the chairman is pivotal to the success of the commission. The Act makes the following provision in that respect: Investigation of share accounts and property, etc., Chairman’s Powers to obtain information; Seizure of movable property in bank; Prohibition of dealing with property outside Nigeria; Forfeiture of property upon prosecution for an offence; Forfeiture of property where there is no prosecution or an offence; Dealing with property after seizure to be null and void; Surrender of travel documents; Chairman’s powers to amend or revoke any order or notice; and Independent counsel to investigate the President, Vice-President, etc. The Honoree of today was befittingly the first Chairman of the Commission. ”.
2.3.1 Evidence and relevant procedural issues
The evidence and relevant procedural issues are also provided for. They cover: Presumption in certain offences; Evidence of corroboration; Evidence of accomplice and agent provocateur; Admissibility of statements of accused persons; Admissibility of statements and documents of persons who are dead or cannot be traced, etc., Presumption in favour of admissibility of certificate issue by principal or employer; Admissibility of translation of documents; and Evidence of custom or convention inadmissible.
2.3.2 Prosecution and Trial of offences
The Act clearly provides for the procedural steps for the prosecution of offenders. These include: Prosecution of offences; Joinder of offences; Certificate of indemnity in favour of full disclosure; and Protection of informers and information. Indemnity of officers of the Commission; Liability for offences committed outside Nigeria; General application to any other offence; General penalty section for any other offence; Notice of any prosecution under the Act to be served on the Commission; Powers of the Chairman to make rules; Right of appeal.
2.3.3 Some of the other provisions of the Act, relevant particularly to the Legal Practitioner, are the following:
S. 23(2) & (3) provides:
(2)Any person from whom gratification has been solicited or obtained, or from whom an attempt has been made to obtain such gratification, in contravention of any provision of this Act, shall, at the earliest opportunity thereafter, report such soliciting or obtaining, or attempt to obtain the gratification together with the name, if known, or a true and full description of the person who solicited, or obtained, or attempted to obtain the gratification from him, to the nearest officer of the commission or police officer.
(3) Any person who fails, without reasonable excuse, to comply with sub-sections (1) and (2) shall be guilty of an offence and shall on conviction be liable to a fine not exceeding one hundred thousand naira or to imprisonment for a term not exceeding two years or to both fine and imprisonment.
S. 39 provides:
notwithstanding the provisions of the any other written law, a judge of the high court may, on application made to him in relation to an investigation into any offence under this Act or any other law prohibiting Corruption, order a legal practitioner to disclose information available to him in respect of any transactions or dealing relating to any property which is liable to seizure under this Act provided that no court shall require an advocate or solicitors to disclose any privileged information or communication which came to his knowledge for the purpose of prosecuting any pending proceeding.
This provision should be taken along with S. 192 Evidence Act, 2011 which provides:
(1) No legal practitioner shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such legal practitioner by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment or to disclose any advice given by him to his client in the course and for the purpose of such employment:
Provided that nothing in this section shall protect from disclosure –
(a) any such communication made in furtherance of any illegal purpose; or
(b) Any fact observed by any legal practitioner in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.
(2) It is immaterial whether the attention of such legal practitioner was or was not directed to such fact by or on behalf of his client.
(3) The obligation stated in this section continues after the employment has ceased.
Section 52 provides:
(1) When an allegation of corruption or anything purporting to contravene any provision of this Act is made against the President or the Vice-President of Nigeria or against any State Government or Deputy Governor, the Chief justice of the Federation shall, if satisfied that sufficient cause has been shown upon an application on notice supported by an affidavit setting out the Facts on which the allegation is based, authorize an independent counsel (who shall be a legal practitioner of not less than fifteen years standing) to investigate the allegation and make a report of his findings to the National Assembly in the case of the president or Vice-president and to the relevant state House of Assembly in the case of the state Government or the Deputy Governor.
(2) The Commission shall be enjoined to fully cooperate with such independent counsel and provide all facilities necessary for such independent counsel to carry out his functions.”
2.4 Money Laundering Act
The Money Laundering Act was first enacted in 2004 and re-enacted in 2011. The Act makes comprehensive provisions to prohibit the financing of terrorism, the laundering of the proceeds of a crime, or illegal acts. It also provides appropriate penalties and expands the scope of supervisory and regulatory authorities so as to address the challenges faced in the implementation of the anti-money laundering regime in Nigeria.
Section 14 creates a number of money laundering offences. These include: (1) Conversion or transfer of property derived from illicit traffic in narcotics, drugs etc. with the crime of concealing or disgusting their origin S. 14. (2) Collaboration in concealing or disguising the genuine nature, location, disposition, movement or ownership of the resources, property or rights thereto forum illicit tragic in narcotics drugs or any crime or illegal act S. 14(2) ML(P) Act, each attract penalties of 2-3 years. (3) A Director or employee of financial institutions is also liable where he:
(a) Warns owners of prohibited funds; (b) Destroys or remove prescribed register; (c) Carries out or attempts under a false identity any of the transactions under Section 1-5 i.e.
Other offences relating to many laundering include:
(i) Making or accepting cash payment of 0.5m and 2.0m from individuals and corporate bodies respectively; (ii) Not reporting international transfer of funds and securities of $10,000 or more to the CBN; (iii) Not duly complying to Over the Counter Regulation on exchanging transactions which include proper licensing by CBN, documentation of transaction exceeding $5,000 and profiling and keeping recording customers for at least 10 years – Penalties for (i) – (iii) are N25,000 for individual, N1.0m for financial institution and revocation of license by the CBN. See S. 3
Furthermore, Casinos are to verify and record identity of customers see S. 4. Verification of customer’s identity by financial institutions by original valid documents and photographs and supporting documents: (i) Individuals by personal document; (ii) Certificate of incorporation by companied; (iii) Power of Attorney by company representative; (iv) Casual customer by document; (v) Those suspected of proceed of crime to do proper documentation; (vi) Identify of the principal be sought in appropriate agency cases. See section 5.
Financial institutions are also mandated by the Act to: (1) Place Special Surveillance on certain suspicious transactions. S. 6. (2) Preserve Records of Customers identify and transactions. S. 7 for at least 10 years. (3) Communication of such identities and transactions to the CBN, NDLEA, Judicial authorities, customer and published in Gazette S. 8 (4) Arousing awareness among.
2.5 Who is a Legal Practitioner in Nigeria?
Who is a Legal Practitioner in Nigeria is a question of law. The Legal Practitioners Act defines a “legal practitioner” as follows:
“a person entitled in accordance with the provisions of this Decree to practice as a barrister or as a barrister and solicitor, either generally or for the purpose of any particular office or proceedings.”
The Act provides the following three ways in which a person may become entitled to practice as a barrister and solicitor.
(1) By having his name on the roll; or
(2) By a grant of warrant by the Chief Justice; or
(3) By virtue of being Law officer.
3.0 LEGAL PRACTITIONERS’ ROLE AND THE RULES OF PROFESSIONAL CONDUCT
It is important to preface this, with the relevant provisions of 1999 Constitution (as amended)
S. 15(5) provides:
(5) The State shall abolish all corrupt practices and abuse of power.
While S. 24 provides:
It shall be the duty of every citizen to –
(a) abide by this Constitution, respect its ideals and its institutions, the National Flag, the National Anthem, the National Pledge, and legitimate authorities;
(b) help to enhance the power, prestige and good name of Nigeria, defend Nigeria and render such national service as may be required;
(c) respect the dignity of other citizens and the rights and legitimate interests of others and live in unity and harmony and in the spirit of common brotherhood;
(d) make positive and useful contribution to the advancement, progress and well-being of the community where he resides;
(e) render assistance to appropriate and lawful agencies in the maintenance of law and order; and
(f) declare his income honestly to appropriate and lawful agencies and pay his tax promptly.
The legal profession is well regulated not only by legislation, but also by Rules of Professional Conduct. In this respect, one of the subsidiary legislation to the Legal Practitioners Act is the Rules of professional Conduct for Legal Practitioners. The current Rules were made on 2nd January 2007 by the then Attorney-General of the Federation and Minister of Justice / Chairman General Council of the Bar. This was made pursuant to section 12(4) of Legal Practitioners Act, 1990.
The Rules contain fifty-seven (57) Rules structured into seven major areas of the practitioners’ roles. They are:
1) Practice as a Legal Practitioner.
2) Relation with clients.
3) Relation with other lawyers.
4) Relations with the Court.
5) Improper Attraction of Business.
6) Remuneration and fees.
The Rules contain more than enough provisions to guide Legal Practitioners in navigating their ways against the corruptive virus of our time. We will select few of these Rules to illustrate this point. Rules 1, 14, 15, 16, 30, 31 and 37 are particularly attractive for our purpose. These Rules are on general responsibility of a lawyer; dedication and devotion to the cause of the client; representing client within the bound of the law; representing client competently; lawyer as officer of court; duty of lawyers to court and conduct in court; and employment in criminal cases.
3.1 General responsibility of a lawyer
A lawyer shall uphold and observe the rule of law, promote and foster the cause of justice, maintain a high standard of professional conduct, and shall not engage in any conduct which is unbecoming of a legal practitioner.
3.2 Dedication and devotion to the cause of the client
It is the duty of a lawyer to devote his attention, energy and expertise to the service of his client and, subject to any rule of law, to act in a manner consistent with the best interest of the client.
3.3 Representing client within the bounds of the law
In his representation of a client, a lawyer may refuse to aid or participate in conduct that he believes to be unlawful even though there is some support for an argument that the conduct is legal. In his representation of his client, a lawyer shall:
(a) keep strictly within the law notwithstanding any contrary instruction by his client and, if the client insists on a breach of the law, the lawyer shall withdraw his service;
(b) use his best endeavours to restrain and prevent his client from committing misconduct or breach of the law with particular reference to judicial officers, witnesses and litigants and if the client persists in his action or conduct, the lawyer shall terminate their relations.
Having regards to SS 23 and 39 ICPC Act and S. 192 Evidence Ct, 2011; a Legal Practitioner obviously, should not be a partaker in corruption schemes or endeavours, but instead report such crimes to the appropriate authority.
3.4 Representing client competently
A lawyer shall not –
(a) handle a legal matter which he knows or ought to know that he is not competent to handle, without associating with him a lawyer who is competent to handle it, unless the client objects;
(b) handle a legal matter without adequate preparation;
(c) neglect a legal matter entrusted to him; or
(d) attempt to exonerate himself from or limit his liability of his client for his personal malpractice or professional misconduct.
3.5 Lawyer as officer of court
A lawyer is an officer of the Court and accordingly, he shall not do any act or conduct himself in any manner that may obstruct, delay or adversely affect the administration of justice.
3.6 Duty of Lawyers to Court and Conduct in Court
A lawyer shall always treat the Court with respect, dignity and honour. Where the lawyer has a proper ground for complaint against a judicial officer, he shall make his complaint to the appropriate authorities. A lawyer who fails to comply with any undertaking given by him either personally or on behalf of his client to a court is prima facie guilty of professional misconduct. Except where the opposing lawyer fails or refuses to attend and the Judge is advised of the circumstances, a lawyer shall not discuss a pending case with a Judge trying the case unless the opposing lawyer is present. Except provided by a rule of order or court, a lawyer shall not deliver to the Judge any letter, memorandum, brief or other written communication without concurrently delivering a copy to the opposing lawyer.
3.7 Employment in Criminal Cases
Rule 37 is particularly relevant to us as lawyers where we have the misfortune of handling corruption cases. I recommend Rule 37 as a guide. It says:
(1) Where a lawyer undertakes the defence of a person accused of a crime, he shall exert himself, by all fair and honourable means, to put before the Court all matters that are necessary in the interest of justice, but he shall not stand bail for a person for whom he or a person in his law firm is appearing.
(2) Where the lawyer accepts a brief for the defence in a murder trial, he shall be deemed to have given a solemn undertaking, subject to any sufficient unforeseen circumstances, that he will personally conduct the defence provided his fee is paid.
(3) Where an accused person discloses facts which clearly and credibly show his guilt, the lawyer shall not present any evidence inconsistent with those facts and shall not offer any testimony which he knows to be false.
(4) The primary duty of a lawyer engaged in public prosecution is not to convict but to see that justice is done.
(5) A public prosecutor shall not institute or cause to be instituted a criminal charge if he knows or ought reasonably to know that the charge is not supported by the probable evidence.
(6) A lawyer engaged in public prosecution shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused person, but he think make timely disclosure to the lawyer for the defendant, or to the defendant if he has no counsel, of the existence of evidence known to the prosecution or other government lawyer that tends to negate the guilt of the accused, mitigate the degree of the offence or reduce the punishment.
4.0 LEGAL PRACTITIONER’S ROLE PLAYING IN ANTI-CORRUPTION LAWS IMPLEMENTATION
4.1 Leadership Role
Leadership is all about service, selfless service. Lawyers are privileged to have been tutored in several areas of knowledge. They even hold the key to legal issues. So we must lead others in ensuring that Nigeria is not drowned by corruption. In 1979, Justice J. Ola Orojo advised us as lawyers on our role as leaders: his words:
Nigerian legal practitioners must be able not only to perform their traditional functions of catering for the professional needs of the citizens, of administering justice and manning the various legal institutions of the state, but they must also be involved in social change; they must strive to ensure a strict adherence to the rule of law and, among other things, ensure that the newly acquired political power is carefully watched and controlled so that it is not used to protect or perpetuate the status quo or class domination. As the watchdog of the people, they must, through their independence and total commitment to social justice, provide the necessary support to sustain an equally independent and fearless judiciary, the last hope of man for law and order, peace and progress.
4.2 As a law teacher/Researcher
The law relating to corruption in Nigeria is presently at its evolutionary stage. Statutes, cases and rules are emerging. The lawyer is therefore expected to know the law, even where they are yet to be certain. So he plays the roles of a teacher and researcher. Specifically, the lawyers who are in the academics, particularly criminal law teachers and researchers are expected to extend their role of teaching and researching the law to the emerging area of law of corruption.
Therefore, the relevance of legal research to the fight against corruption cannot be under-estimated. The effective exploitation of information contained in any legal collection can always be attained by means of “Legal research”. The ability to perform legal research is one of the basic skills of a lawyer. Legal research and ability to “find the law” is a most useful weapon without which any given lawyer could survive and thrive in such an advertorial judicial system as practiced in Nigeria. Chief Theophilus Olakunle Dada, one time Librarian Nigerian Institute of Advanced Legal Studies noted in his Valedictory Lecture that:
The legal profession invariably requires certain basic skills such as the power of expression, the effective use of language coupled with dexterity in the art of advocacy. However, these vital attributes may not be fully attained without a proven mastery of the use of the tools of the trade as represented by law books, law reports, journals and periodicals. This in effect means that all members of the legal profession including the law teachers, law school students, post-graduate students and, most importantly, members of the Bar and the Bench should be involved in legal research as a matter of routine.
4.3 Policy Making and Administration
Legal Practitioners are generally not directly involved in policy conception, formulation and policy making. However, in some critical situations lawyers are either directly involved or form part of a team in government policy formulation.
Where legal practitioners are involved in policy making on corruption, it is important that they bring their legal knowledge to bear on such policy. One area that readily comes to mind is the complex subject of modern criminology. For instance, it may not be enough to make policy to fight corruption, it may also be necessary to understand the underlying factors in the crime of corruption. Thus, a legal practitioner with the knowledge of criminology may guide the policy making team on such issues as: physical and constitutional factors; mental factors in crime; psychology explanations of crime; personality theories about crime; social and cultural factors; the identification and measurement of crime, profiling of offenders; discretion in criminal justice process, and crime and community.
Similarly, lawyers involved in the administration of anti-corruption laws and institutions must be seen to be competent and above board in the assignments.
4.4 Advisory Role
Legal Practitioners serve as advisers to individuals, companies, governments and other entities. Where their advisory role relate to legal issues on corruption, lawyers must be guided by knowledge, wisdom, diligence and morals.
4.5 Prosecutorial Role
The prosecutor has a fundamental role of diligent perusing the case file before giving advice, drafting a charge, filing his case and commencing trials.
The power of the prosecutor is well-documented in the 1999 Constitution, the Administration of Justice Act 2011 and the decided cases.
We can only add a moral note. He must not be a persecutor. He must also not soil his hands by compromising his case.
4.6 Defence Counsel Role
The defence counsel in corruption cases must be guided primarily by Rules 14, 15 and 32, Rules of Conduct for Legal Practitioners in Nigeria. These Rules put emphasis on devotion to duty; strong respect for and compliance to all relevant legal principles and laws; and fair play and honourable means of achieving his aim of giving the best service to his client.
At this stage, it is apposite to refer to an opinion expressed by a Lawyer in Indonesia , which I share that:
“In the fight against corruption lawyers are an important instrument because they are the key actors in our legal system, which is apparently not functioning properly. It is the lawyers who can contribute greatly to liberating our nation from corruption.
All the government’s efforts in the battle against corruption will fail if the majority of lawyers take an opposing stance or act as onlookers…
…lawyers should stand up and share the responsibility for combating corruption.”
Morality naturally comes to play here.
5.0 Types of Corruption
The United Nations, at a special conference held in Berlin, Germany on Countering Corruption as a prerequisite for reducing poverty, attempted to define corruption. In addition, the conference noted that there are variants of corruption. The major types identified are listed below.
a) Grand Corruption
Grand Corruption is an act of corruption at high levels of government that distorts policies and the functioning of a state. It enables high ranking officials to exploit the general public for personal profit.
b) Petty Corruption
Petty Corruption refers to the corruption of mid- and low-level officials in their interactions with a citizen. These citizens are often attempting to access goods and basic services such as schools, hospitals, and police departments.
Collusion is a cooperation or secret agreement for a deceitful and illegal purpose.
d) Tied Aid
Tied Aid is aid, usually of financial nature, given to an individual or party under the condition that all or part of the aid is used to purchase goods for the person or party.
Coercion is the act of making an individual or party comply with demands by using threats or force.
f) Institutional Corruption
Institutional corruption is essentially official corruption. This is because it is the corruption committed by officials of government institutions like ministries, departments and agencies. This type of corruption is fueled by lack of strict supervision and control over public officials entrusted with providing services to members of the public. The officials exploit the weak system of control to swindle those they are meant to serve by asking for gratification for services or by making services and public amenities unreachable unless their hands are greased. Those who indulge in this type of corruption, range from junior, middle level and senior officials. Having tasted the forbidden fruit, such officials pray and wait for opportunity to be appointed or promoted to the headship of ministries, departments, parastatals or agencies to upgrade to grand corruption
g) Systemic Corruption
Systemic corruption describes a situation where corruption and corrupt way of life have become entrenched in the socio-economic and political fabrics of the society or a nation. In systemic corruption, the practice has reached a routine way of life and so does not generate adverse reaction on those on whom it is practised. Under systemic corruption, all other types of corruption are rife and competes in ascendancy and pervasiveness. According to Robinson, under this system corruption is “routinized and accepted as a means of conducting everyday transaction” His Excellency, Prof. Yemi Osinbajo appears to be referring to the systemic corruption in Nigeria when he observed that “the main purpose of governance seems to be corruption”.
It is common knowledge that corruption has become a way of life in Nigeria, and that even the least officer in a public office can hold a person to ransom in order to achieve a corrupt end. Also, corruption has become institutionalized to the extent that non receipted phony fees are demanded and collected from prospective applicants shamefully including students, by several government agencies. This troubling scenario has created a vast field of partakers and victims of corrupt practices, high and low alike.
5.1 ILLUSTRATIONS OF TYPES, PATTERNS AND AVENUES OF CORRUPTION IN NIGERIA
(i) A dismissed/terminated/forcefully-retired Civil Servant is appointed Chairman or Director of an organisation owned by the same government that “punished” the civil servant
(ii) A business man” sets up a company in Kano and another “firm” in London, New York or Hamburg, imports from and exports to himself non-existent goods to transfer currency out of the country.
(iii) Electoral commissioners or officers are either unavailable for the filing of nomination papers by papers by particular candidates or they provide an insufficient number of voter-registration cards to particular constituencies.
(iv) Subsidiaries of multi-national companies declare huge profits to their metropolitan headquarters while publicly proclaiming losses in Nigeria.
(v) A Town Planning Authority routes a road through a political opponents landed property.
(vi) “Federal Character” is actualized by patronage to unqualified and incompetent cronies from various, sections of the Federation.
(vii) A Lawyer takes a fee from a convicted prisoner to appeal his case but neither files for the appeal nor return to the prison to see his “client” until the expiration of the sentence.
(viii) A medical doctor performs an illegal abortion for a young girl in his private clinic but rushes the dead body to his colleagues in the General Hospital and a non-incriminating death certificate is produced.
(ix) Another medical doctor issues, for a fee, a “sick-leave” for a very healthy employee to be excused from work for two weeks.
(x) The National Assembly deletes, from the enabling Acts, a clause that empowers the Code of Conduct Bureau to investigate/probe questionable declaration of assets.
(xi) Refrigerators, generators, furniture electric-kettles, etc “officially” purchased for the office are taken away for house-use.
(xii) A lecturer has the letter-heads of the Editors of major journals in his field of specialization and writes himself letters of acceptance of manuscripts for publication.
(xiii) External-examiners/assessors, for thesis-examination or promotion, are “suggested” by the candidates to be examined or assessed respectively.
(xiv) A printer gets an extremely over-inflated contract to supply stationery to an Hotels Management Board with the “understanding” that everyone, from the manager to the accounts clerk, will get his share of the “extra”.
(xv) Chairmen or Chief Executives of government institutions/ organisations/Departments approve the renting of their own houses to their institutions/ organisations/Departments at exorbitant rates.
(xvi) The market woman adulterates her yam-flower with cassava flower and pushes the bottom of the measuring tin inside to give the customer less than paid for.
(xvii) A Vice-Chancellor and the Chairman of the University Press has an arrangement whereby the Press “publishes” whatever he writes and the Chairman goes abroad on estacode allowance to see to the technicalities of the publication.
(xviii) To get your case called for hearing in Court, you must “see” the court-clerk; otherwise, you will be going to the court everyday without any hope of hearing.
The list is endless! Suffice to say, that the above list were compiled in 1983!
7.1 Advisory Role in light of Nigeria of our dream :
One area of our role as Legal Practitioners, that I wish to emphasize is our Advisory Role as conscience of the Society and custodians of the Rule of Law.
At the NBA Ikeja Branch, we walk our talk, so please permit me to offer these advisory, with a view to assisting Nigeria’s anti-corruption bodies fulfill their mandate:
7.2.1 The EFCC Act vide S.6 enumerates the functions of the commission, one of which under S.6(e) and(f) provides as follows:
S.6(e) the adoption of measures to eradicate the Commission of Economic and Financial Crimes;
6(f) the adoption of measures which includes coordinated preventive and regulatory activities, introduction and maintenance of investigative and control techniques on the prevention of economic and financial related crimes;
6(p) carrying out and sustaining rigorous public enlightenment campagn against economic and financial crimes within and outside Nigeria
7.3.1 Under and by virtue of S. 6(b) of the ICPC Act the Commission is empowered: To examine the practices, system and procedures of public bodies and where, in the opinion of the commission, such practice, system or procedure aid or facilitate fraud or corruption, to direct and Supervise a review of the practice
6(C) To instruct, advise and assist any officer, agency or parastatals on ways by which fraud, corruption may be eliminated or minimized by such officer, Agency or Parastatal
6(e) To educate the public on and against bribery, corruption and related offences; and
6(f) To enlist and foster public support in combating corruption.
7.4.1 S. 3 of the National Orientation Agency Act which provides for the functions of the Agency provide inter alia:
3(h) Orientate the populace about power, its use and the proper role of the Federal Government in serving the collective interest of Nigerians;
3(l) Sensitize, induct and equip all Nigerians to fight against all forms of internal and external domination of resources by a few individuals or groups.
8.0 Now, with the above legislative background, I invite our anti-corruption Agencies to focus, not only on the people that the Government is serving but also on the Government serving the people.
8.1 One major area of concern concerning the activities of some Federal Government Agencies is their penchant, to visit heads of Federal Courts soliciting for assistance on the disposal of their cases pending before the courts or to be filed.
8.2 With all due respect this is a prototype of systemic corruption which should not be encouraged, no matter the level of self righteousness of the cause of the practitioners of such despicable model of road to seeking Justice. This practice eats at the root of justice Adminitration in Nigeria having regards to S.36 (1) of 1999 constitution ( as altered )I therefore ask the ICPC to invoke its powers under S.6(c) of its establishment Act; to redirect the efforts of such Agencies particularly AMCON, who has on several occasions flaunted in National dailies the Pictures of its Chief Executive visiting Heads of Courts soliciting such assistance, capable of compromising and polluting the streams of Justice. That will be the day when Bank debtors will also form themselves into an Association visiting Heads of Court soliciting assistance on how their cases should be handled. Thankfully the courts have on a number of occasions resisted this patronizing and sometimes arm twisting approach to Justice Administration.
9.0 We should realize that the era of the king can do no wrong is long gone and has no place in our Constitutional Democracy. To that extent, I believe it will help the attainment of the goals of our anti-corruption agencies to make amends, where they have found themselves on the wrong side of the Law. For instance, the Supreme Court has held that the EFCC has no business getting involved in Debt recovery disputes – See: DIAMOND BANK PLC V. OPARA & 2 ORS. (2018) 3 S.C (PT. II) 50 @ 77 para. 5-20 where the Supreme Court held that the EFCC, the Police and other security Agencies are not debt recovery Agencies. The Rule of Law presupposes, that no one is above the Law and perverting Justice is in itself corruption. Lawyers who petition the EFCC and other Security Agencies over Simple debts matters with no Criminal content such as forgery should themselves desist from the practice which gives the Bar and those Agencies a bad name.
10.0 Part of the problem making things seemingly unworkable in Nigeria is the failure, reluctance or unwillingness of public officers to discharge their duties as required by Law. Imagine for a moment if the NOA has been alive to its duties relative to its functions stated earlier particularly under SS. 3(h) & (l) (Supra). All the agitations in some parts of the Country on marginalization cry, perhaps could have been greatly minimized.
11.0 Another kind of sting operation – I will strongly recommend a different kind of “sting operation” to our anti-corruption Agencies particularly the EFCC and the ICPC. The sting operation I will recommend is one that is converse from what presently operates. Fish out good public officers and honor them publicly as a matter of routine. It is important we show the world that not all Nigerians are corrupt.
The somewhat prevalent feeling for instance, that all Government officials are corrupt need to be disabused to encourage more buy into in who the anti-corruption war.
12.0 Anti-Corruption is a war to be fought by all – See: S.6(f) of the ICPC Act and 6(p) of EFCC Act.
13.0 To the Bar – since charity begins at home, we as Legal Practitioners must seriously work at putting our house in order. That is the only way we can be an example to the larger community. The NBA Politics is fast mimicking all the vices that beset our National Politics – money and Ethnic politics. The Bar to secure her independence must work at financial independence instead of relying on donations by Government and politician. We should stop making financial demands on aspirants to NBA elective position.
13.1 These are vices that swell corruption of the worst kind which perhaps explains why our politics especially at the National level is almost becoming a venture for the rich. Too much financial demand is being placed on the contestants which often turn out to be counter-productive. If a contestant for the office of National president, for an example, is expected to sponsor every branch law week, this will result in a huge overhead, which should be avoided. If we continue in this manner, we would have lost our independence, which is a mandatory requirement for fighting corruption.
I wish to end this paper with these two Quotations on the Judge and the Lawyer.
Oputa, JSC (of blessed memory) on the Judge:
Conscience comprehends honesty and moral rectitude. Both virtues should form the badge of a good Judge. They should be his uniform. It is a calamity to have a corrupt Judge. Money they say is the root of evils. The Judiciary is not a place to make money. There is no doubt the salary structure and conditions of service in our Judiciary both need complete and total overhaul. Our judges deserve the minimum of comfort to enable them perform their arduous duties attaching and pertaining to the judicial officer. But the poor conditions of service are no excuse for any Judge to be corrupt and dishonest, for one thing, no one is forced to go to the Bench. And no one should go to the Bench to amass wealth, for money corrupts and pollutes not only the channels of justice but also the very stream itself. It is thus a calamity to have a corrupt judge. The passing away of a great Advocate does not pose such public danger as the appearance of a corrupt Judge on the bench, for in the later instance, the public interest is bound to suffer and elegant justice is mocked, debased, depreciated and auctioned. When justice is thus bought and sold then, there is no more hope for society. What our society needs is an honest, trusted, and trust worthy judiciary.
Prof. Itse Sajay, SAN on the Lawyer:
A heavy responsibility devolves on a legal practitioner by virtue of his profession. He is not only an officer of the court who assists in the administration of justice; he is also the defender of the rights of the citizens and custodian of their confidence. In the course of his duties, he risks coming into conflict with the state and even sometimes with the court. He must maintain the rule of law and avoid putting himself in a position where his personal interest will conflict with that of his clients. He must act honourably, for the profession is “the honourable” profession.
LAYI BABATUNDE, SAN
15TH JULY, 2021