We…call on the Federal Government to charge all suspects to court and in the process, simultaneously, name and shame them. There is no legal liability in so doing. Non-disclosure of names of looters serves only undemocratic hegemonic political calculations and provides room for the likelihood of the re-looting part of the recovered loot.
On June 4, 2016, the Federal Government published the values of recovered cash loot, various sums involved in final forfeitures, interim forfeitures in local and foreign currencies, and a list of 239 non-cash loot comprising farmlands, plots of land, vehicles, maritime vessels, completed and uncompleted buildings, between May 29, 2015 and May 25, 2016. However, the identities of persons from whom the recoveries and forfeitures were made were not disclosed, contrary to repeated promises made by the regime to name and shame former public officers who had looted public vaults.
Some persons, including professors of law, have attempted to rationalise the non-disclosure of the names of persons from whom the recoveries were made and those involved in interim and final forfeitures, arguing that premature disclosure of names would have been illegal on the ground of the likelihood of claims of damages for defamation. But none of those who share this opinion have gone ahead to cite the provisions of the law that would have been violated if Mr. President or any other arm of government named and shamed those who voluntarily made returns or have been made to suffer forfeitures.
In this short article, I argue that by statutory and judicial authorities, disclosure of names, as well as the amount returned, is not just what is legally required but also what is in the public interest. By necessary implication, suppression of the identities of those who made returns and have suffered forfeitures, interim and/or final, smacks of undue secrecy, non-transparency, a tendency to use the anti-graft agencies as tools of dispensing favours to attain political control and subjugation. Without doubt, the failure of the Federal Government of Nigeria to disclose the names of persons who voluntarily returned looted cash and those who have suffered asset forfeitures either on interim or final basis shows that the PMB/APC regime is succumbing to pressure in the fight for probity and transparency in the handling of public affairs. In the context of the fact that the identity of some other persons and the sums they allegedly looted had been disclosed before commencement and conclusion of their trials, the latest attitude of the regime amounts to double standards.
A fundamental point to first establish is that disclosure of the identity of persons who have voluntarily been making returns, as well as those who have suffered forfeitures and the value of what they return or forfeited, ought to be a product of a systematic process of investigation and prosecution through the judicial system, rather than being politicised through agencies of the executive arm of government outside the judicial process. Where arrests are made pursuant to proper investigation and suspects are promptly charged to court, disclosures ought to be made in the ordinary course of prosecution of suspects. In the process of prosecution, relevant agencies of government, as well as individuals and organisations would have the opportunity to gather empirical and verifiable information on recovered or forfeited loot based on the processes filed in the court’s Registry.
The primary function of an anti-graft agency is to conduct investigation, gather evidence and charge suspects or defendants to court, with or without the defendant making confessional statements. Indeed, the defendant may only be prosecuted and convicted based on proof by the prosecutor beyond reasonable doubt. A defendant who is accused of an offence is not obliged to answer any question in the process of investigation and interrogation. Under the EFCC Act however, the only obligation of the defendant is to disclose details of his/her assets. Even in the court, the accused is not compellable to give evidence against himself/herself. But this would not hinder such a defendant from being convicted based on the evidence placed before the court. This is the import of a community interpretation of sections 35(2), 35(4), 35(5), 35(7), 36(5), 36(6)(a)-(c) and 36(11) of the Constitution of the Federal Republic of Nigeria, CFRN, 1999, as amended; section 270(7), Administration of Criminal Justice Act (ACJA); section 27(1) of the EFCC Act; section 29 of the Police Act; Abidoye v. F.R.N (2014) 5 NWLR (Pt. 1399) 30 and Chwuemeka v. FRN (2016) 2 NWLR (Pt. 1495) 120.
However, for a suspect or defendant who is disposed to plea bargain, the Administration of Criminal Justice Act (ACJA) provides that an admission or confession upon which plea bargain agreement may be based shall bevoluntary and be expressly in writing and signed, as follows:
“(7) An agreement between the parties contemplated in subsection (3) shall be reduced to writing and shall:
(a) state that, before conclusion of the agreement, the defendant has been informed:
(i) that he has a right to remain silent;
(ii) of the consequences of not remaining silent; and
(iii) that he is not obliged to make any confession or admission that could be used in evidence against him.
(b) state fully, the terms of the agreement and any admission made; and
(c) be signed by the prosecutor, the defendant, the legal practitioner and the interpreter, as the case may be; and
(d) A copy of the agreement forwarded to the Attorney-General of the Federation.” [See ACJA, Section 270 sub (7)]
In other to strengthen the requirement of voluntariness in the drawing up of the plea bargain agreement, section 270(6), ACJA, mandatorily provides that the suspect or defendant shall be allowed to make inputs as follows:
“(6) The prosecution shall afford the victim or his representative the opportunity to make representations to the prosecutor regarding –
(a) the content of the agreement; and
(b) the inclusion in the agreement of a compensation or restitution order.”
Once it can be shown that the plea bargain agreement is the product of the voluntariness of the suspect or defendant, such an agreement would be adjudged sufficient evidence of the truth of the defendant’s guilt and the court could act upon such voluntary confessional statements.
Where a plea bargain agreement has been reached (including agreements to make returns) between the defendant and the prosecutor, the State/prosecutor/anti-graft agency lacks the discretion to delay prosecution. Section 270(9), ACJA, mandatorily provides that:
“… the prosecutor shall inform the court that the parties have reached an agreement and the presiding judge or magistrate shall then inquire from the defendant to confirm the terms of the agreement.”
By section 270(10)(a), ACJA, once satisfied that the defendant entered into the plea bargain agreement voluntarily and without undue influence, the presiding judge or magistrate is empowered to convict the defendant “in accordance with the terms of the agreement”. By section 270(11)(a), ACJA, the presiding judge or magistrate shall sentence the defendant in accordance with the terms of the plea bargain agreement where the agreed sentence is considered appropriate. However, by section 270(b)-(c), ACJA, a lesser or heavier sentence may also be imposed where the presiding judge considers the agreed sentence to be inappropriate.
The provisions of section 270(10) & (11) are a codification of judicial principles. In Ologe v. New Africa Holdings Ltd. (2013) 17 NWLR (Pt. 1384) 449 at 466, Paras. A – B, the apex court held that the court can convict an accused based solely on confessional statement, as follows:
“… A confessional statement made by an accused person, which is properly admitted in evidence is, in law, the best pointer to the truth of the role played by such accused person in the commission of the offence. Such a confessional statement can be accepted as satisfactory evidence upon which alone the accused can be convicted.”
Pursuant to the sentence passed by the presiding judge, an order could then be made “that any money, asset or property agreed to be forfeited under the plea bargain shall be transferred to and vest in the victim or his representative or any other person as may be appropriate or reasonably feasible (section 270(12). ACJA. Under the EFCC Act, forfeited assets, in appropriate cases, are vested in the Federal Government. Subsequently, the prosecutor is mandatorily empowered to “take reasonable steps to ensure that any money, asset or property agreed to be forfeited or returned by the offender under a plea bargain are transferred to or vested in the victim, his representative or other person lawfully entitled to it.” (section 270(13), ACJA). It is only within this context that “Any person who willfully and without just cause obstructs or impedes the vesting or transfer of any money, asset or property under this Act shall be guilty of an offence and liable to imprisonment for 7 years without an option of fine.” (section 270(14), ACJA).
Even within the context of the EFCC Act, the power to confiscate and declare assets of defendants forfeited is vested only in the courts, not in the EFCC. Sections 19 to 25 of the EFCC Act empower the court to make an order of forfeiture, seizure and/or confiscation of all assets and properties, real or personal that may have been acquired, obtained and/or derived, directly or indirectly, disclosed or undisclosed in Any Assets Declaration Form. The EFCC is only empowered to seize defendants’ assets in appropriate cases and then apply to court for interim orders, pending final conviction in deserving cases.
Where publication of names is done within the context of a factual report of the contents of processes filed in court in the course of proceedings, including confessional statements and terms of signed plea bargain agreements, no looter can succeed in a claim of defamatory publication or libel.
By the decisions of the apex court in a plethora of cases, including Ologe v. New Africa Holdings Ltd. (2013) 17 NWLR (Pt. 1384) 449, the law is that publication in the mass media is “not defamatory if it is an accurate and fair report of what transpired, and it needs not be verbatim or word for word. If what is stated is substantially a fair and accurate account of what is sought to be conveyed, then the statement cannot be said to be defamatory.” Therefore, publication of the facts contained in a plea bargain agreement signed voluntarily by the defendant showing that the defendant voluntarily agreed to return looted assets cannot be said to be defamatory. (See also Ekong v. Otop (2014) 11 NWLR (Pt. 1419) 549; Peterside v. Fubara (2013) 6 NWLR (Pt. 1349) 156).
From the law as established by the apex court, there is no legal liability, which the Federal Government may suffer by disclosing the identities of persons who voluntarily made returns of looted funds and non-cash loots. Indeed, in the case of looters who have been made to forfeit looted assets in final forfeiture orders, there is absolutely no legal liability for publishing such names. Similarly, publication of names of looters involved in interim forfeitures cannot be defamatory, provided the publication is factual and not false. The best tradition of a democratically elected government operating a written constitution and specific statutes governing specific areas of law is for government to charge suspects to court. In the process, the names of looters as well as the value of what they return or forfeited pursuant to any plea bargain agreements, confessional statements and/or admission of guilt would simultaneously become public knowledge.
The compelling conclusion that may be drawn is that the non-disclosure of the identities of suspected looters who have made returns is not in the public interest. It should be noted that as far as plea bargain agreements are concerned under the ACJA, until the court convicts, sentences and makes appropriate orders under section 270(10)-(12), ACJA, the defendant is permitted, under section 270 (15)(b), ACJA, to back out of the plea bargain agreement, if he/she is ready to face trial. If the defendant withdraws from the plea bargain agreement, section 16 of ACJA provides that no references shall be made to any prior admission or confession or the plea agreement. Therefore, by virtue of section 270(15)(b), ACJA, alleged recoveries made by an anti-graft agency without charging the looters to court to obtain definitive court orders is not in the best interest of fighting corruption in a transparent and non-discriminatory manner.
In the light of the foregoing analysis, public interest dictates not only full disclosure of the value of recovered loot and forfeitures but also the identities of the looters through the prosecutorial judicial system. The only caution the government may exercise in making such disclosures in official statements is that technically, in the eyes of the law, until the court convicts and sentences the looters, they remain “suspected” looters or “defendants” but not looters.
We therefore call on the Federal Government to charge all suspects to court and in the process, simultaneously, name and shame them. There is no legal liability in so doing. Non-disclosure of names of looters serves only undemocratic hegemonic political calculations and provides room for the likelihood of the re-looting part of the recovered loot.
PREMIUM TIMES
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