Tuesday, May 10, 2016 10.07PM / by Sofunde Osakwe Ogundipe & Belgore
The media continues to be dominated by stories relating to the prosecution of prominent politicians in former President Goodluck Jonathan's administration. The most prominent cases have involved the former national security adviser and persons alleged to have improperly received funds from him that were intended for security purposes. Another case receiving significant media attention concerns the senate president, who was elected without the full support of the majority party in the upper house. Instead, he relied on the support of the opposition party – to which he had previously belonged – and the majority party is believed to have taken retributive action against him by laying charges before the Code of Conduct Tribunal for allegedly making false declarations relating to his assets.
Aside from the fact that these cases all include members of the political party that lost the 2015 election, collectively they also demonstrate that the coming into force of the Criminal Justice Administration Act in May 2015 has, at least until recently, had no significant effect on the use of interlocutory applications to delay the progress of a case – an issue that has plagued both the criminal and civil courts.
Criminal Justice Administration Act Criminal Trial Delays
The Criminal Justice Administration Act was intended to introduce a criminal justice system that "promoted efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crimes and protection of the rights and interest[s] of… the defendant and victims". The act covers arrests, searches and bail and introduced provisions relating to plea bargains and the compensation of victims of crime with property recovered from convicted persons.
Section 306 of the Criminal Justice Administration Act was designed to address delays to criminal trials caused by interlocutory applications and appeals arising from such applications. Section 306 prescribes, in somewhat stark terms, that "an application for [a] stay of proceedings in respect of a criminal matter before the court shall not be entertained". The definition of 'court' includes federal courts.
Criminal Justice Administration Act
Criminal Trial Delays
Despite this clear provision, federal courts faced with applications for a stay of proceedings pending appeal following the dismissal of an interlocutory challenge have tended to consider such applications, and some have been granted. Where such applications have been refused and appeals have been made to the Court of Appeal, it too has heard the applications. Even the Supreme Court, in an appeal filed on behalf of the senate president seeking to stay his trial before the Code of Conduct Tribunal, entertained an application for a stay of proceedings. The court suggested to the prosecution that as the appeal in support of which the stay of proceedings was sought could be heard in the following week, it should agree not to insist on the trial continuing until after it had heard the pending appeal. While many commentators pointed out that this appeared to be a clear violation of Section 306, nothing could be done. The Supreme Court is the highest court and, although it can overrule previous decisions, it rarely exercises this power.
However, it appears that the courts have started to apply Section 306, as the Court of Appeal recently struck out a number of applications brought on behalf of defendants being prosecuted in cases involving the former national security adviser, perhaps signalling a change of approach. It remains to be seen whether this change of approach will be seen in the trial courts, where the pattern seems to be that the applications are heard, but generally refused. Where applications have been granted, prosecutions that were commenced as far back as 2003 remain pending in 2016.
The Criminal Justice Administration Act also addressed the issue of plea bargaining. The act contains fairly extensive provisions relating to plea bargains for the first time in Nigerian law (although a Lagos State law had made some cursory provisions in this regard). Similarly, these provisions seem to be honoured by their disregard, rather than their application, which is likely due to the fact that the legislation is so new.
The introduction of these provisions is welcome, as they will likely avoid the repetition of situations such as that witnessed in December 2008, when a former state governor was convicted on corruption charges and sentenced to a fine equivalent to less than $25,000 as the result of a plea bargain. He reportedly took the money out of his car, paid the fine and left the court. There was no formal structure for plea bargains at the time, and the case is an example of the types of abuse that were witnessed.
It is hoped that the authorities will hopefully publish guidelines to assist in the application of these new provisions.
Other Developments in the Capital Markets
Other Developments in the Capital Markets
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2. Offering of financial instruments – a major change of direction - Switzerland - ABR Avocats
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4. OJK issues regulation on exemption from reporting and announcement obligations - Indonesia - Ali Budiardjo, Nugroho, Reksodiputro