Babajide Oladipo Ogundipe October 7 2013 The struggle to investigate and prosecute crimes continues Sofunde Osakwe Ogundipe & Belgore | White Collar Crime - Nigeria Babajide Oladipo Ogundipe White Collar Crime FactsDecisionCommentA recent decision of the Court of Appeal against murder convictions demonstrates what many observers in Nigeria consider to be the two biggest obstacles to the adequate investigation and prosecution of criminal cases:lack of capacity in law enforcement agencies; andlack of political will to empower such agencies.FactsThe Lagos Court of Appeal allowed the late Sani Abacha's former chief security officer and another person to appeal their convictions for their alleged involvement in the murder of Kudirat Abiola – wife of MKO Abiola, the only Nigerian presidential candidate whose election victory was not contested by the losing opponent.Abiola was acknowledged as the victor of the Nigerian presidential election held on June 12 1993. However, before the results could be announced formally by the election governing body, then-military dictator Ibrahim Babangida announced the annulment of the election, thus preventing Abiola from becoming president.Following widespread national unrest, in August 1993 Babangida was pressured into relinquishing office and handing over to a 'transitional council', headed by businessman Ernest Shonekan. This interim government included Abacha, who was in charge of the defence portfolio. Babangida's 'stepping aside' – as he described it at the time – only served to quell protests for a short period. When the protests resumed and Shonekan proved unable to handle them, Abacha deposed him in November 1993, installed himself as president and suppressed the unrests brutally. Abiola was arrested in June 1994 and died in detention in July 1998.During Abiola's detention, the campaign to restore democracy continued, led by, among other people, Kudirat Abiola, one of his wives. She was fatally shot in Lagos in June 1996. After Abacha's death, and during the regime headed by Abdulsalami Abubakar, which ended military rule in May 1999, the military government set up a special investigation panel – a favoured tool of military governments – to conduct investigations into, among other things, Kudirat Abiola's death and attempts on the lives of other real and perceived enemies of the Abacha regime. These 'investigations' allegedly revealed that the principal gunmen were members of the army, supported by members of the police, and were part of Abacha's special security network headed by his chief security officer, Hamza al-Mustapha.Following the return of civilian governance, prosecutions were commenced against several people for involvement in crimes committed during Abacha's regime. Al-Mustapha was among the people put on trial. In the al-Mustapha trial, the prosecution case consisted mainly of the testimony of persons who had admitted to being party to the criminal behaviour. The prosecution called only four witnesses. One was a doctor, whose testimony contributed little to the prosecution case. Another was a police officer, who had taken 'confessions' from the defendants. The other two prosecution witnesses were members of the army, both of whom admitted during presentation of the prosecution case to have taken part in the murder of Kudirat Abiola. One admitted that he had shot her, while the other stated that he had driven the vehicle from which his colleague had committed the shooting. However, when questioned by the defence, both retracted these admissions, claiming that they had not been in Lagos at the time of the killing and that their confessions had been procured by way of bribery by government officials.DecisionIn spite of what was clearly a massive hole in the prosecution case, both defendants were convicted in the High Court in January 2013 and sentenced to death. Their appeals were allowed in July 2013; the Court of Appeal was particularly critical of the High Court judge for having acted on the testimony of prosecution witnesses who gave contradictory evidence. The court ultimately dismissed the allegations against the defendants. No other evidence was offered at the trial. Thus, it was unsurprising that the appeals were successful.CommentThe outcome in this case demonstrates the issues that can beset the investigation and prosecution of criminal cases in Nigeria, and provides an indication as to why the investigation and prosecution of fraud and corruption cases continue to be problematic. In the al-Mustapha case, heavy reliance was placed on investigations conducted by the special investigation panel established under Abubakar's government. Military governments frequently used bodies such as these to investigate crimes (usually attempted coups). The investigations tended to consist of interrogation of witnesses and accused persons under circumstances in which basic rights (eg, the right to remain silent and to legal counsel) were ignored, and the use of harsh interrogation techniques may have featured prominently. In effect, these were not real investigations.Investigations in Nigeria have tended to follow this pattern even after military rule ended. While the use of harsh interrogation techniques is not as common as it was under military governments, law enforcement agencies continue to conduct investigations in large part by 'inviting' investigation targets to submit themselves to questioning, usually before any probable cause has been established against them. Usually little actual investigatory work is done. As people have become increasingly aware of their constitutional rights to silence and counsel, it should come as little surprise that such techniques no longer produce the results that they did when the military ran the show.Corruption and fraud cases are acknowledged to be some of the most difficult to investigate and prosecute, and reliance on results from interrogating suspects – given the constitutional protections available – is hardly the best way to obtain evidence that can be relied on in court. After so many years of not having to conduct any real investigations, the police and other law enforcement agencies lost the capacity to do so and have been struggling since 1999 to recover that capacity. Their struggles, especially with regard to the investigation of corruption and fraud cases, have been hampered by the manner in which the political powers have trifled with specialised agencies set up to investigate and prosecute corruption and fraud cases due to a clear lack of capacity within the police.The Economic and Financial Crimes Commission (EFCC) was established in 2003 by President Obasanjo to investigate financial crimes. After four years of impressive successes, its chairman, Nuhu Ribadu, was dismissed by Obasanjo's successor and replaced by Farida Waziri – later described by Obasanjo as "not the right person for the job". The catalyst for Ribadu's removal from the post of EFCC chairman was his leadership in charging several former state governors with corruption-related offences once their eight years of constitutional immunity from prosecution had expired. The final nail in Ribadu's coffin was his temerity in moving against James Ibori, former governor of Delta State. Almost as soon as this happened, he was removed from office. His replacement, Waziri, was later dismissed by President Jonathan and replaced by the EFCC's first director of operations – but not before immense damage had been done to the commission. The EFCC continues to struggle to regain its credibility. This struggle has been compounded by the National Assembly's failure (or refusal) to fund the agency adequately. That members of the National Assembly are reportedly among the highest paid legislators anywhere in the world may have a bearing on their reluctance to support the EFCC.The Independent Corrupt Practices Commission, established in 2000 to investigate and prosecute corruption-related offences, has been similarly hampered by political interference. The National Assembly attempted to weaken the commission in 2003 by amending the statute that established it. Then-President Obasanjo refused to sign the amendment bill, resulting in the National Assembly voting to override what was considered to be a veto. In response, Obasanjo contended that he had not vetoed the bill, but had merely refused to assent to it; thus, there was no veto for the National Assembly to override. He sued the National Assembly to have the amended act invalidated. The litigation ended up in the Supreme Court after several years and has now been remitted to the High Court for a re-hearing. Its progress in the High Court has been incredibly slow, and neither the executive nor the legislature appears terribly interested in bringing it to a conclusion. Consequently, a number of prosecutions by the commission have been stalled by challenges to the validity of the actions taken on its behalf. On one hand, the commission contends that the National Assembly's overriding of Obasanjo's veto remains valid until set aside by the courts. On the other hand, the persons charged contend that they cannot be charged under the amended act. Even though the commission contends that it operates under the amended act, it does not operate under the name designated by that act – the Anti-corruption Commission.Unless and until law enforcement agencies are given an opportunity to function properly, fraud and corruption prosecutions will continue to be hampered by their lack of capacity and the absence of political will on the part of the government to build the required capacity. Critics would be justified in suggesting that truly independent and capable agencies are hardly in the interests of the politicians in charge of the executive and legislature.For further information on this topic please contact Babajide Oladipo Ogundipe at Sofunde Osakwe Ogundipe & Belgore by telephone (+234 1 462 2502), fax (+234 1 462 2501) or email ([email protected]).