“Halt Two Criminal Justice Systems ” Falana Tasks Nigerian Lawyers

Human rights lawyer Femi Falana, SAN has accused “corrupt
politicians and some senior lawyers of hijacking the criminal
justice system and working together to frustrate the effective
prosecution of corruption cases pending in several courts.” Falana
said this in a paper presented yesterday at the 2019 Law Week of
the Epe Branch of the Nigerian Bar Association, Epe in Lagos
State.

In the paper titled: The Danger of Unequal Criminal Justice
System in Nigeria, Falana urged “progressive lawyers to
team up with other patriotic forces to ensure that all defendants
are treated equally under the criminal justice
system.”

Falana’s paper read in part: “Apart from two former governors,
namely Messrs Joshua Dariye and Jolly Nyame the list of convicted
persons is made of lowly placed individuals in the society. Owing
to abuse of court process, rich defendants have continued to
frustrate their prosecution with the connivance of some senior
lawyers.”

“By virtue of section 17 (2) (a) of the Constitution of Nigeria
1999 (as amended), every citizen shall have equality of rights,
obligations and opportunities before the law. But in practice, the
rich and poor defendants are not treated equally by Nigerian
courts. Apart from the fact that rich litigants have the means to
hire the services of the best lawyers in any area of the law the
courts are manned by judges who are not neutral in the class
struggle being waged daily by the Nigerian people.”

“According to media reports the Economic and Crimes Commission
(EFCC) secured 312 convictions and recovered assets worth N11.5
billion in 2018. In the first quarter of this year the EFCC
recorded 192 convictions and recovered assets of N117 billion. It
is indisputable that the rate of convictions has increased due to
the Administration of Criminal Justice Act which has provided for
the acceleration of criminal cases in all federal courts.”

“Realising that the majority of economically marginalized
citizens have no access to legal representation the Federal
Government has set up the Legal Aid Council to provide legal
services to indigent citizens. But due to the fact that it is
poorly funded, each state government has established the Office of
Public Defender to ensure that underprivileged citizens are
provided with legal services.”

“Notwithstanding that the Economic and Financial Crimes
Commission (EFCC) has been accused by the bourgeois media of
engaging in Gestapo tactics with respect to the treatment of
suspects it cannot be denied that the rights of influential
criminal suspects are well respected by the commission. The big men
and women implicated in allegations of serious economic crimes
being investigated by the commission usually receive polite letters
of invitation, telephone calls or text messages advising them to
contact named investigators whose telephone numbers are
supplied.”

“Through such arrangement, the suspects are allowed to report
themselves at their own convenience. Other suspects may decide to
vamoose or brief lawyers to embark on legal measures to shield them
from investigation and prosecution.”

“If and whenever influential criminal suspects report themselves
they are treated with utmost courtesy by the investigators. Since
they are presumed innocent until they are proved guilty by the
State they are never paraded before the media, regardless of the
gravity of the offence committed by them. Unlike what obtains in
western countries it is infra dignitate to subject big men and
women to the restraint of handcuff in Nigeria. Hence, hell was let
loose when a chieftain of the Peoples Democratic Party on trial for
money laundering was recently handcuffed by the Kuje prison
authorities.”

“A few years ago, the Olusegun Obasanjo administration
apologized in writing to a former police chief who was handcuffed
by the EFCC while he was on trial for money laundering and corrupt
practices to the tune of N17 billion.”

“If a VIP suspect cannot be located by the commission his
relatives are never arrested. He is declared wanted and may be
reported to the Interpol. However, in Benedict Peters v EFCC, a
high court in the federal capital territory has ruled that the
commission lacks the power to declare any suspect wanted without
first obtaining a court order for that purpose.”

“It is also important to know that if the commission is going to
detain a big man or woman for more than 48 hours it has to obtain a
remand order from a Magistrate Court in line with the provisions of
section 293 of the Administration of Criminal Justice Act, 2015.
Suspects always apply to be kept in the commission’s cells since
they are much more comfortable than police and prison cells!”

“Owing to unequal justice that has become the hallmark of the
nation’s criminal justice system the prisons and police cells are
filled with the victims of our unjust socioeconomic system. On
account of prison congestion due to inadequate funding, majority of
the inmates who are awaiting trial are locked up with convicted
prisoners. Upon their release from dehumanising prison conditions
the awaiting trial inmates and convicts team up to join criminal
gangs constituted by frustrated young men and women in the larger
society.”

“The criminal gangs drawn from the ghettoes in the cities are
fighting back on the streets in broad daylight and in the homes of
the rich and not so rich people in the dead of the night. Instead
of teaming up with the victims of frustration to terminate
institutionalized injustice in the land, Nigerian lawyers are using
the law to defend the status quo under the rule of law.”

“The Nigerian Bar Association which does not hesitate to
mobilise hundreds of lawyers to defend indicted senior lawyers and
judges has not deemed it fit to extend free legal services to
indigent defendants facing trial for poverty related offences in
the courts.”

“It is common knowledge that Nigeria operates a double criminal
justice system, one for the rich and one for the poor. Majority of
indigent defendants are tried in the magistrate and area courts
have no access to lawyers. Because of the gravity of certain
offences indigent defendants are represented by young and
inexperienced lawyers assigned to them by the State.”

“As a judicial policy under the bourgeois legal system,
applications for bail on behalf of poor defendants are not always
granted by trial courts on the grounds that the defendants may not
be able to produce reliable persons to stand sureties for them.
Even if bail is granted the conditions attached to them are hardly
met as they are tied to ownership of properties by sureties. Since
preliminary objections are not filed by such defendants the trial
courts are able to conduct criminal cases involving them
expeditiously.”

“But the defence lawyers engaged by rich defendants manipulate
the criminal justice system by filing preliminary objections and
interlocutory appeals aimed at delaying or suspending their trials.
Applications for bail are automatically granted by trial courts
while bail conditions including ownership of properties located in
urban centres are easily met by politically exposed persons and
other rich suspects.”

“To ensure that rich defendants do not escape from the country
they are asked to deposit their passports with the courts. But
since the local hospitals are ill-equipped due to the criminal
diversion of the funds earmarked to maintain them the applications
for the release of the passports of VIPs on trial are granted to
enable them to travel abroad for medical check up or treatment.
Thereafter, all manners of preliminary objections and interlocutory
appeals are filed to frustrate the prosecution of rich
defendants.”

“These dilatory applications are invariably granted by trial or
appellate courts because the defence lawyers are leaders of the
legal profession. In fact, some of them are members of the National
Judicial Council and Body of Benchers. Since Nigeria operates a
special criminal justice system for big men and women the
publication of a so-called list of looters by the Minister of
Information, Mr. Lai Mohammed recently generated a needless
controversy.”

“Not unexpectedly, bourgeois lawyers and media practitioners
insisted that the influential criminal suspects are entitled to
presumption of innocence guaranteed by section 36 of the
Constitution. It is the height of hypocrisy to accuse the federal
government of violating the fundamental right of the alleged
looters to fair hearing by publishing their names in a country
where the names of petty criminal suspects are published while they
are paraded and tried in the media by the Police.”

“On a daily basis, the homes of thousands of Nigerian citizens
who are accused of petty stealing and poverty related offences are
invaded by the police. Without search warrants the homes of the
suspects are searched for incriminating evidence. At the end of the
search the suspects are arrested without a warrant of arrest. They
are taken to police stations in handcuffs.”

“At the police stations they are tortured and hauled into
custody. As no police station in Nigeria has beds and bedding,
suspects are made to sleep on bare floor in crowded cells. Even
though bail is said to be free the price fixed by the police for
every bail application depends on the nature of the offence. For
instance, the price for bail in offence of stealing is a percentage
of the amount involved! In the prisons, rich suspects stay in
“white house” cells” which are furnished by them.

“Indigent suspects whose whereabouts are unknown are not usually
declared wanted by the police. In lieu of such suspects their
family members including children are arrested and held hostage.
The innocent family members are not granted bail until the suspects
are found and arrested by the police. Lawyers who visit their
clients in police custody for the purpose of giving legal advice
are subjected to harassment for interfering in police
investigation.”

“Since law alone cannot curb the crisis of unequal criminal
justice in the country I am compelled to invite all members of the
legal profession to appreciate that Nigerian cannot guarantee law
and order under the peripheral capitalist system being operated by
the government. In other words, the country will not know peace
without economic empowerment of the people. Instead of relying on
market forces as dictated by the neo-liberal elements in the
government the State should empower the Nigerian people to control
the economy.”

“It is my submission that the economy of the country cannot be
transformed in favour of Nigeria on the basis of the dangerous
prescriptions of the World Bank and International Monetary Fund.
Since all capitalist governments are violent because capitalism is
an ideology of violence Nigeria cannot be an exception. Therefore,
Nigerian lawyers should make a strong case for the actualization of
the socio-economic rights embodied in the fundamental objectives
and directive principles and set out in chapter 2 of the
Constitution.”

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