Thursday, 19 November 2009
I am very grateful to the National Judicial Institute for the honour and privilege to interface with Honourable Justices, Judges and Kadis of the Superior Courts of Record. It is rare to have so many judges gathered in one room. It therefore affords me the opportunity of not just rubbing minds on germane issues of law but also sharing thoughts on mutual expectations of each other on the very important work of combating corruption and other economic crimes.
CORRUPTION AND ECONOMIC CRIMES: THE CHALLENGES BEFORE JUDICIAL OFFICERS
CHIEF (MRS.) FARIDA WAZIRI (AIG RTD)
EXECUTIVE CHAIRMAN, EFCC
BEING A PAPER DELIVERED
AT THE 2009 ALL NIGERIA JUDGES CONFERENCE ON 18TH NOVEMBER 2009
My initial brief from the National Judicial Institute was to speak on the challenges of judicial officers when adjudicating on Cyber crime cases. I have taken the liberty of extending the scope to cover not just cybercrime but all cases of corruption and economic crimes. Please indulge me.
The judiciary has played a commendable role in not just the entrenching democratic governance in Nigeria but also in stabilising democracy. Time and time again, the judiciary has intervened positively in crucial political practices and actions that would have adversely affected democratic governance in Nigeria. This has concurrently led to a renewed belief by the populace in the judiciary as indeed the last hope of the common man.
While it is commonly agreed that the economic development of a country and the entrenchment of democratic governance is largely a function of key indices such as:
1. Free and fair elections
2. Entrenchment of the rule of law
3. The provision of enabling critical infrastructures such as roads, energy, education, health, etc,
The ability of public officials to judiciously utilize public funds and resources cannot be understated. The absence of transparency and accountability in the utilization of public funds impacts governance negatively and affect the delivery of democratic dividends and overall economic development to the populace.
It is in recognition of these challenges that institutions such as the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices (and other Related Offences) Commission (ICPC) were created. These agencies are interventionist in nature since the Penal Code and the Criminal Code do have extensive provisions on corruption that were hardly ever enforced.
Distinguished Judges do allow me to reiterate once again that under my watch, the EFCC works and will continue to work within the ambit of the rule of law. Judicial structures and procedures will be respected. Accused persons will be presumed to be innocent until they are tried and convicted by a competent court of law. I say this because working within the rule of law has delivered startling positive results. These results prove conclusively that it is possible to fight corruption and economic crimes within the rule of law. I deliberately use the word “startling” because most people assume that the Nigerian situation is so bad that one must use extra-judicial measures in order to get results. I do not agree. I am of the strong conviction that working within the rule of law produce results that are sustainable and respected by all. Media trials and convictions and violation of human rights in desperation to satisfy the public are not only unconstitutional but put the whole fight against corruption in jeopardy on the long run. I therefore do not subscribe to such illicit methods. I testify to the efficacy of the rule law in fighting corruption given the results recorded by the Commission within the very short time since I assumed office as Chairman of the Commission.
The Commission has achieved the following milestones in the last 16 months:
1. Secured the high profile Conviction of Bode George through the normal judicial process. This case from the start to conviction took about 15 months and it is a testimony to the fact that the judiciary can work.
2. Recovered over N240 billion Naira. The bulk of this recovery came as a result of the strategic intervention of the Commission in the banking sector.
3. Secured over 70 convictions.
Please permit me to use this opportunity to explain the basis of the intervention of the Commission in the banking sector. Much furore has been generated in certain quarters and the opinion has been proffered that the Commission has no business with debt recovery. I agree with that line of arguement if the only objective of the Commission’s intervention in the banks was purely to recover debts. That is not the case. I need to point out that our involvement devolved around the investigation of debts that have a criminal flavour. We must not forget that the Commission under its enabling Act of 2004 is an Agency charged with the enforcement of the provisions of the following key legislation:
1. The Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act 1994.
2. The Banks and other Financial Institutions Act (BOFIA) 1991 as amended
All the loan facilities that the EFCC has recovered have been loans that were either used for insider trading, money laundering, granted in breach of relevant laws or guidelines of the Central Bank or that have some other underlying form of criminality. We must not loose sight of the fact that besides the recoveries, the Commission has filed charges against bank Chief Executives and the Managing Director of a stockbroking firm.
I will now turn to the discussion on the expectations from Judicial Officers when determining cases of corruption and economic crimes. I believe and rightly so, that judicial officers are partners of the Commission in overpowering those I call “barbarians within the gates” of the system. These are the corrupt individuals that stand in the way of economic progress of the country and will at all times corrupt the system for their selfish needs and greed. Judicial officers must help this country because so much hope is reposed in them. I believe that the proper, judicious, courageous and innovative use of judicial powers can achieve results.
I earlier cited the case of Bode George where a conviction was secured within 15 months or so and will want to contrast it with other equally important cases which were filed and have been pending for over 4 years not moving beyond the plea stage. I believe that the only difference lies in the innovative and judicious use of the powers of the courts. The courts can deny the corrupt the comfort of enjoying their ill gotten loot by ensuring that they do not abuse basic remedies provided in law for good cause.
1. I speak of the grant of exparte injunctions which undermine investigations. At the moment, we are battling with several court orders restraining the Commission from ever investigating certain individuals and corporate bodies. We are yet to understand the legal reasoning behind a High court restraining the Commission from carrying out its statutory duties particularly in the face of notable pronouncements on this point to the contrary by the highest court of the land.
2. I speak of perpetual injunctions which in some cases have become permanent immunity to some people who are under investigation even where they have lost their constitutional immunity.
This again may be the forum for me to raise again the desirability of special courts with special rules of procedure. It is beyond cavil that the issues Nigeria faces with corruption are analogous to the issues of terrorism in other jurisdictions. Special problems require special solutions and it is absolutely necessary that there be special courts to try cases of corruption and economic crimes. I urge judicial officers to lend their strong voice to the call for the creation of special courts for the trial of corruption cases. It may be necessary that my position is properly understood. I have not lost faith in the conventional structures of the court system. However, we face a situation where unscrupulous accused persons have perfected the art of delaying justice by utilizing the technicalities of procedure of the conventional courts. In several judgments, you yourselves have condemned delay of cases occasioned by deliberate antics of some counsel. In spite of this, nothing seems to have changed. In many jurisdictions such counsel are now punished through imposition of heavy fines and sometimes suspension from practice. That is not yet happening in Nigeria and so counsel continue to take liberty. Perhaps, special courts will help address this problem.
For a Commission charged with the responsibility of combating corruption and other economic crimes, special courts are advocated for the following reasons:
1. It is frustrating for the prosecutor and the investigator to see an accused person walking the streets and flaunting his suspected ill gotten wealth while the slow process of justice unwinds. The impression created is that the system tolerates corrupt practices. If justice must not only be done but must be seen to be done, then it is necessary that there must be special courts to ensure speedy trial of cases and an interim restraint of tainted assets during the trial. Assets are difficult to recover and if not preserved pending trial, suspects will dissipate them and leave the state with nothing to recover at the end of the trial if convicted
2. Protracted trials lead to witness fatigue. A witness may die, loose his memory regarding material issues or just get fed up with the slow pace of trial and decide not to give evidence again. It must also be understood that corruption trials are usually fraught with challenges of witness protection arising from threats by suspects. No witness will therefore want to be exposed to prolonged dangers particularly when he has no direct benefits to take if the suspect is convicted.
3. Where a trial judge is elevated or retires, the case must start de novo and this can be avoided by having special courts with special rules of procedure for speedy trials.
Countries like Philippines, Indonesia, Pakistan, Kenya, Ghana and South Africa have resorted to special courts to try corruption cases and we may do well to learn from them.
We must also understand that the war against corruption is not that of the Commission alone. It is a value chain that involves several agencies in the three tiers of government and the key component in that value chain are judicial officers. No amount of good investigation and prosecution will deliver desired results if judicial officers are the weak link in that value chain. Judicial Officers make the difference in the administration of justice and they must stand up to be counted.
As we have seen, Nigerians have a highly developed sense of justice and decisions which favour the campaign against corruption have been received with popular acclaim. This serves as an encouragement to all of us in this exercise.
Specifically on cyber crimes, please allow me to inform you that we have changed our approach to investigating such cases. Because of the prevalence of these crimes and their potential damage to the country’s image we have initiated the process of fighting cybercrime through the smart use of technology. We have also set up the Transaction Clearing Platform (TCP) which will perform free basic due diligence for parties that receive any form of business correspondence from Nigeria.
Key components of the Transaction Clearing Platform are:
1. The platform will be staffed by dedicated officers of the EFCC
2. It is informed by the need to do conduct preliminary due diligence before consummating a business transaction.
3. At a basic level, it will verify for investors the veracity of business proposal from Nigeria.
4. The verification will be basic and parties will be advised to do further due diligence.
5. The platform will disseminate advisory emails to victims and potential victims of 419 using emails addresses extracted from the platform.
Once the service is fully functional, only the person that ignores it will loose money to Nigerian fraudsters. The TCP can be accessed from www.efccnigeria.org and we will appreciate your thoughts on the matter.
The change in approach is dictated by the fact that cybercrimes and the styles of criminals keep on changing and we must change to keep up. Judicial Officers also have to update themselves on cybercrimes to effectively discharge their obligations. To start with, the methodology of crimes committed on the internet poses technological challenges to the investigator. The judicial officer must therefore also be abreast of the changes in technology to properly adjudicate on the issues.
Allied to the above issue is the challenge of the admissibility of computer generated evidence. Cybercrime is a function of the internet and the computer and proof of most transactions must be generated from a computer and we hope that the current amendments to the Evidence Act will put these issues to rest. But even before the amendments, judicial officers cannot afford to turn a blind eye to transactions consummated in the cyberspace in the face of a world that today functions substantially through the use of technology.
Let me conclude these remarks by acknowledging once more the good job that the judiciary is doing. However, the challenge of combating corruption is so huge that we need to do much more to contend the problem. Nigeria will never be able to attain its vision of a developed country if high level corruption is not addressed in a more fundamental manner. The judiciary really hold the ace in this regard. The international community will never take us seriously or accord us the respect we all crave for if corruption continues to dominate our public affairs.
Once again, I appreciate the kind gesture extended to me by the National Judicial Institute and look forward to more of such interactive sessions with you.
Thank you and God bless.
Chief Mrs.) Farida Waziri (AIG RTD)
Executive Chairman, Economic and Financial Crimes Commission
Source: The Economic and Financial Crimes Commission (EFCC)