Nigeria, without any iota of doubt, has some of the brightest legal minds in the world. Both at home and in the diaspora, Nigerian Lawyers have distinguished themselves with expertise in diverse areas of law. Dr Charles Adeogun-Phillips is one such shining stars; a former Prosecutor/Senior Counsel at the United Nations’ International Criminal Court who recently received an honorary Doctor of Laws degree from the University of Warwick, has done outstanding work in international criminal prosecutions, chasing ‘bad guys’ all over the world, with a view to bringing them to justice, whether for crimes against humanity and war crimes, or financial misdeeds. He has done so, with a good measure of success. He told Onikepo Braithwaite and Jude Igbanoi in a chat last week, how most of his prosecutorial work has helped to set the much-needed precedents where they didn’t exist. He has also demonstrated his willingness to help in the home front, while firmly advocating that Nigeria needs more Judges and better conditions of service for them
Congratulations on your Conferment of LLD by your alma mata, Warwick University. Tell us briefly about how you ended up as a pioneer lead Genocide and War Crimes Prosecutor at the United Nations? You were a lead Prosecutor at the UN International Criminal Tribunal for Rwanda. The case of Mikaeli Muhimana, Councillor of Gishyita Sector for crimes against humanity, rape and genocide, in which he was convicted and sentenced to life imprisonment, was one of the 12 precedent-setting international cases you prosecuted. Many have referred to the 2020 incident at the Lekki Toll Plaza as a massacre, crime against humanity etc. In the light of your experience with such matters, does it qualify to be called that?
Thank you. It was indeed, a great privilege and honour to be invited to receive an honorary Doctor of Laws degree from the University of Warwick, and be placed in such distinguished ranks as those of past honourees such as President Nelson Mandela, who received a similar honour in 1996. I however, do not take it for granted. I hope to continue to be a worthy advocate for the University, and a standard bearer for the legal profession.
My work with the United Nations and in the area of international criminal law in particular, remains a significant milestone in both my career and life. With the genocide convention of 1948 having only existed on paper, and the trials of major war criminals before the International Military Tribunal at Nuremberg in 1945 serving as my only precedent, my work as a Lead Prosecutor at the UN, fighting for justice on behalf of over 800,000 victims of the worst crimes ever known to mankind for well over a decade, placed me in the forefront of several pioneering developments in the field of international criminal law. Sadly, I also gained first-hand experience of the extent of man’s inhumanity to man.
So aged 31, I joined the Office of the Prosecutor (OTP) at the United Nations International Criminal Tribunal for Rwanda (UN-ICTR) in January 1998, from private practice in the United Kingdom having been appointed to that position by the then Chief UN Prosecutor, H.E Justice Louise Arbour (former Justice of the Supreme Court of Canada and later UN High Commissioner for Human Rights). What I had initially thought would be a short-term sabbatical from the rigours of practice as a “white-collar” criminal defence solicitor in London and an opportunity to engage in precedent setting international human-rights work, eventually lasted well over a decade.
For over a decade, between January 1998 and June 2010, I prosecuted, with great success, 12 precedent-setting and complex international trials of those responsible for the 1994 Rwandan genocide, 10 of which I led as lead prosecution counsel, making me arguably one of the most experienced and successful genocide prosecutors in history. My elevation in 2001, to the rank of Senior Counsel before an international court at the age of 35, by the then Chief UN Prosecutor, H.E Ms. Carla Del Ponte (former Attorney-General of Switzerland), was equally unrivalled. Between 2007 and 2008, I also served as the Head of Special Investigations, under the leadership of the then Chief UN Prosecutor H.E. Justice Hassan Jallow, (former Judge of the Special Court for Sierra-Leone and now the current Chief Justice of The Gambia).
In leading the prosecution of these genocide cases before the UN court, I was involved in historic and ground-breaking international legal practice in what was soon to become, the fastest growing and emerging area of public international law, cumulating in my citation in the maiden edition of Creswell’s “Who’s Who in Public International Law” in 2007, and in the International Yearbook and Statesmen’s Who’s Who in 2011.
This precedent-setting work involved tackling several novel substantive and procedural issues never addressed before in international law. The jurisprudence engendered in these international trials contributed to the development of international criminal law which hitherto, only existed on paper and has helped strengthen and preserve this emerging system of transitional justice. Indeed, this was the first time the scope of international law was extended beyond governing the relationship between countries, to making individuals accountable for violations of international law and norms. It was indeed, a watershed moment in public international law.
There were challenges both in terms of the substantive and the procedural law. For example, only the crime of genocide was codified. Even at that, it only existed on paper as of 1997. Unlike the genocide convention, the law of crimes against humanity are not codified in an international convention, but has primarily been developed through the evolution of customary international law derived from the cases we were prosecuting.
As you have rightly observed, I led the trial of serial rapist Mikaeli Muhimana, involving charges of sexual violence and cruelty against women, between 2004 and 2005. I think that was actually my fifth international trial. The Muhimana case not only clarified, but developed the jurisprudence of the international criminal law on the legal elements and definition of the crime of rape in the context of large scale and widespread international crimes. This is a clear example of what I mean when I say that, we developed the law through the cases we prosecuted.
Procedurally, international trials are very protracted. Because of the widespread nature of such crimes, they involve hundreds of factual witnesses, a handful for experts including historians and forensic scientists, with documentary exhibits often running into thousands of pages. And, because we were pioneers with simply no precedent to follow, we simply had to make up most of the procedural rules as we went along, quite a bit like what happened during Covid in 2020.
Because trials before international courts are expensive and lengthy, they are often reserved for ‘ring-leaders’ and not ‘foot soldiers. One of the main challenges we encountered was developing a criterion to determine those persons who bear the greatest responsibility for the crimes. International crimes are often complex and political in nature, in the sense that they often stem from political differences and therefore, involve complex ideological issues. Many of those being investigated would, at some stage, have been part of the State apparatus. Naturally, investigating crimes allegedly committed by such persons is bound to be challenging.
With regard to your question as to whether the 2020 incident at the Lekki Toll Plaza would qualify as a crime against humanity, let me say this; Crimes against humanity are certain acts that are purposefully committed by a State, or on behalf of a State, as part of a widespread or systematic policy, typically directed against civilians, in times of war or peace. The violent nature of such acts is considered a severe breach of human rights, hence the name. Crimes against humanity differ from war crimes, because they are not isolated acts or sporadic events committed by individual soldiers, but rather, are acts committed in furtherance of a State or a government policy or of a widespread practice of atrocities tolerated or condoned by a government or a de facto authority.
Like I pointed out earlier, unlike the genocide convention, the law of crimes against humanity is not codified in an international convention, but has primarily been developed through the evolution of customary international law. So, while it is as clear as night follows day that the 2020 incident at the Lekki Toll Plaza was directed against civilian protesters, was perpetrated by individuals drawn from the Nigerian Armed Forces, and were purposefully committed on behalf of the Nigerian State, it would, in my view, be hard to demonstrate that those acts were committed by those individuals, as part of a widespread or systematic policy of the Nigerian State. That said, the mere fact that the said acts were committed either in furtherance of a State or a government policy, or that such atrocities were tolerated or condoned by the Government would render them capable of meeting the threshold required for them to be considered as a crime against humanity.
The International Criminal Court, in the view of many, has failed to justify its very creation and existence. Some are of the view that its focus is mainly on Africa and third world countries. That for example, those who falsely claimed that Saddam Hussein had nuclear weapons and thereafter, invaded Iraq and murdered Saddam Hussein, had no questions to answer because it involved first world countries like America. That there are two different standards – one for third world countries and one for first world countries. In any event, America and many European countries are not even members of the ICC. What do you have to say about this? With over $2b in budget in 20 years, the ICC purportedly has less than 10 convictions. Kindly, share your views on this?
It is not entirely the ICC’s fault that it has not been that busy, since it was established in 2002. This is so, for a myriad of reasons. Before I go into those reasons, let me start by saying that it is generally accepted as is outlined in the preamble of the Rome Statute of the ICC that “the most serious crimes of concern to the international community as a whole, must not go unpunished”.
Despite this preamble, it must be noted that, the ICC is not a substitute for national courts. Rather, it complements them. This is known as the Principle of Complementarity, under which priority is given to national systems. This is a major feature of the jurisdiction of the ICC.
What this means in plain language is that, the ICC’s jurisdiction is only activated only when a State Party is genuinely unable or unwilling to investigate and/or prosecute a crime under the jurisdiction of the court. Therefore, it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes. The ICC can only intervene where a State is unable or unwilling genuinely to carry out the investigation, and prosecute the perpetrators. That in and off itself places a limitation on the ICC’s operations, and very few people understand that.
But, beyond the issue of principle of complementarity, there are several other limitations to the effect of the exercise of the ICC’s jurisdiction, which, in my view, further emphasises the need for National jurisdictions to exercise jurisdiction over crimes committed in their territories.
For example, the ICC’s jurisdiction is limited to events that took place after 1 July, 2002. This is what is known as the Temporal Jurisdiction of the court. The Court also has no jurisdiction with respect to any person who was under the age of 18, when the crimes concerned were committed. Another limitation of the court is that, it only has jurisdiction over the investigation and prosecution of four international crimes, namely, genocide, crimes against humanity, war crimes and more recently, the crime of aggression. This is known as the subject-matter jurisdiction of the court.
But, even where the ICC has both the temporal and subject-matter jurisdiction over a situation, it will not necessarily act. Why? Well, because the principle of “complementarity” provides that certain cases will be “inadmissible”, even though the Court can exercise jurisdiction over them. In general, a case will be inadmissible if it has been or is being investigated or prosecuted by a State with jurisdiction. In addition, a case will be inadmissible if it is not of sufficient gravity to justify further action by the Court. A case may however, be admissible before the court if the investigating or prosecuting State is unwilling or unable to genuinely to carry out the investigation or prosecution. For instance, a case would be admissible if national proceedings were undertaken for the purpose of shielding the person from criminal responsibility. For example, in the case of Nigeria, the ICC Prosecutor has announced its intention to exercise jurisdiction over certain crimes alleged to have occurred in Nigeria. Now, Nigeria’s main challenge would consist of the fact that, those cases are not admissible before the ICC because they are being actively investigated and/or prosecuted by the Armed Forces and/or the Nigerian Government.
But, even if one were to overcome all the institutional challenges to the jurisdiction of the court, there remains the political challenges to the court’s jurisdiction. Some of which you have rightly pointed out in your question concerning those responsible for the invasion of Iraq, and the possibility of United States citizens being held accountable before the ICC with respect to the US invasion of Iraq. Now, let me tell you what the problem with that is.
You will recall that by virtue of the American Service Members’ Protection Act, the United States has sought to guarantee that its citizens will be immune from prosecution at the ICC. In furtherance of this Act, the United States Government then went ahead and concluded Bilateral Immunity Agreements (BIAs) with several countries. Those agreements were aimed at guaranteeing US citizens immunity from the ICC’s jurisdiction, wherein they threaten to cut off US aid to country that did not agree. So, therein lies the challenge. In essence, a resolution of the Security Council would be required before any US citizen can be brought before the ICC, and the US will veto such a move. The practical effect of this is that as the ICC has no law enforcement powers of its own, it depends on the cooperation of members countries to conduct its investigations. In that regard, my sense is that the US would simply have exerted pressure on countries that have signed BIA with it to oppose the ICC and not cooperate with the court. So, for example, if US citizens are in such a country, that country will refuse to hand those citizens over to the ICC which has no law enforcement powers of its own. So, you can clearly see where the problem lies.
But, moving away from Iraq and/or Saddam Hussein and the allegation of the existence of nuclear weapons as a justification to invade Iraq, let me provide you with a more recent and practical example of such a political challenge which might resonate with you and your audience more readily. It is as clear as night follows day, that there have serious violations of international humanitarian law by the Russian military and/or its leadership in the territory of Ukraine. Now, can the ICC render President Putin accountable over his invasion of Ukraine? In theory, yes. In practice, no. Even though Ukraine is not a party to the Rome Statute of the ICC, it had previously accepted the court’s jurisdiction in 2014 in connection with the Russian invasion of Crimea, and then also went on to accept the ICC’s jurisdiction on an open-ended basis, and so, in principle, the ICC has both the subject-matter and temporal jurisdiction over these set of events as war crimes and/or crimes against humanity under international law. But, as a permanent member of the Security Council, Russia will mostly likely exercise its veto powers to prevent a referral of the Ukraine situation to the ICC.
President Putin’s actions in targeting civilians in Ukraine constitute war crimes and/or crimes against humanity under international law. In addition, his actions in invading Ukraine also constitute the crime of aggression under international law. So, on the face of it, proving that Russia has committed the crime of aggression would appear straightforward. But, again, as a permanent member of the Security Council, Russia will exercise its veto powers. So, this again will never happen. So, this a typical example of the some of the political limitations that affect the operation of the ICC.
But, you have also raised other aspects regarding the operation of the ICC which I would also like to deal with. Now, you have raised the issue of whether the ICC has targeted or focused unfairly on African countries. Having served as the International Criminal Court Bar Association’s focal point for Nigeria for over five years now, I am unable to subscribe to that view, and I will explain why.
The ICC was established by treaty in 2002. I started prosecuting international crimes at the UN in January 1998 – four years before the ICC itself was established. What that suggests to you is that, I was fully aware of the negotiations amongst various countries that led to the establishment of the Court, and I can tell you for free that African countries made great contributions to the establishment of the Court and influenced the decision to have an independent Office of the Prosecutor. The Southern African Development Community (SADC) was very active in supporting the proposed Court, and its declaration on the matter was endorsed in February 1998, by the participants of the African Conference meeting in Dakar, Senegal, through the “Declaration on the Establishment of the International Criminal Court”.
At the Rome Conference itself in 2000, the most meaningful declarations about the Court were made by Africans. Without African support the Rome Statute might never have been adopted. In fact, Africa is the most heavily represented region in the Court’s membership. The trust and support come not only from the governments, but also from civil society organisations. The Court has also benefited from the professional experience of Africans, and several Africans have occupied high-level positions in all organs of the Court. The former President of the Court was from Africa, as was the former Chief Prosecutor of the Court.
In addition, I will have you know that majority of ICC investigations were opened at the request of or after consultation with African governments. Other investigations were opened following a referral by the United Nations Security Council, where African governments are also represented. So, in my view, it completely unfair for anyone to suggest that the ICC targets only Africans or third world countries.
Finally, moving on to your comments about the high cost of funding the ICC, let me start by saying that International criminal tribunals and courts, be they UN and/or donor funded, do not come cheap. That said, I agree that even though the quest for securing justice for the victims and survivors of widespread international crimes is the cardinal aim of the transitional system of justice, the costs incurred in the pursuit of justice cannot be open ended. This in my view, is especially so, when one considers that the cost of running some of these international trials before these institutions, is perhaps, almost equal to the Gross Domestic Product (GDP) of many of the countries where such widespread atrocities occurred. In fact, the cost of prosecuting one international crime could well outstrip the annual budget of the entire judiciary of many African States. For example, the cost of prosecuting former Liberian president, Charles Taylor at the UN, stood at a whopping US$50 million, while the annual budget of the entire Sierra Leonean justice sector was about US$13 million.
The high cost of international criminal prosecutions, derives mainly from the excruciating evidentiary processes associated with criminal prosecutions. Proving a case beyond reasonable doubt – the evidentiary standard of criminal prosecution – involves an investment of huge financial and time resources, comprehensive and expensive investigations, and above all, the exhaustive examination of extensive materials.
In summary, as a pioneering and founding member of this unique area of public international law, let me end our discussions on this section by stating that to my mind, charting the course ahead essentially means that national jurisdictions must position themselves to take maximum advantage of the limited jurisdiction of the International Criminal Court. But, there are legal and procedural obstacles that States are bound to encounter in this regard. What are these obstacles and how can they overcome them? Well, the first is that States must first incorporate international crimes into their domestic legislation. This is what is called domestication. This legal and legislative process, is what confers jurisdiction on local courts over the prosecution of international crimes.
Once that has been achieved, then the procedural obstacles are triggered, chief of which is the issue of capacity. Do States have the capacity to investigate and/or prosecutes complex international crimes? Do these States need to reform their penal law that provide for the death penalty for capital offences? Do they have the material resources to deal effectively with complex international and/or transnational crimes? Do they have the human and technical resources to deal effectively with complex international and/or transnational crimes? These are questions that we need to reflect over, and which can form the basis of further discussions on this particular topic in future.
What is your assessment of the EFCC prosecutions? Many are of the view that their success rate is poor, and most of their cases have been bungled. What, in your view, may they not be doing right? What kind of message do you think the pardoning of ex- Governors Jolly Nyame and Joshua Dariye convicted and imprisoned for corruption, sends to the world about Nigeria’s so-called fight against corruption?
I started my professional life as a specialist “white-collar” criminal defence Lawyer in the UK, and since leaving the UN and returning to private practice in 2010, that area of practice accounts for about half of my domestic and cross-border work. You will of course, also recall that I was deeply involved in the precedent-setting prosecution of very senior Federal judicial officers in Nigeria between 2016 and 2017, and we all know how that ended! I am also currently instructed in what can aptly be described as the largest fraud case ever brought before an English court by a Sovereign State. Closely linked to my expertise in white-collar criminal litigation, is my cross-border asset tracing and recovery practice. Since 2017, I have been retained by an agency of government to investigate, trace and recover over 14 billion US Dollars, currently owed to a Sovereign State, following its acquisition of non-performing loans from some of the country’s ailing commercial banks. More recently, I have been involved in the drafting of the Statute for the proposed International Anti-Corruption Court at The Hague. So, I guess “white-collar” crime is simply in my DNA, and this would perhaps, place my comments in some perspective.
The most prevalent type of white-collar crime, often the subject of criminal investigation and/or prosecution in Nigeria consists of allegations of corruption, breach of public trust by PEPs (Politically Exposed Persons) and/or outright theft or fraud within the public and banking sectors. Sadly, however, corruption has gone from a mere act of accepting bribes to “make ends meet” to one that is simply driven by sheer greed – perhaps, even a sense of entitlement from people in positions of authority. Corruption has become a complete state of mind and a way of life. After all, as it is often said in Pidgin English; “na for where man dey work, na em e go chop”.
Now coming to your question about the EFCC, despite the fact that these white collar criminals almost brought our country’s economy to its knees, our complex criminal justice system, in spite the ACJA of 2015, is almost powerless to deal with them effectively. Why? Because these category of Defendants practically escape justice, mainly not because of their singular and/or collective might, but primarily because it has been so difficult for our law enforcement and anti-graft agencies to establish that a crime has taken place.
Indeed, most white-collar crime goes undetected, unprosecuted, and unpunished. White-collar criminals, are rarely jailed. For the most part, prosecutors really only look at white-collar crime as a property crime, so it gives the perception that there’s not as much damage, when in fact the damage is often greater than a common street crime. That said, some of us “white-collar” crime Lawyers will argue that there is no useful purpose served in sending white-collar criminals to jail, simply because it’s harder for them to repay money they have stolen from behind bars!! Frankly, if we incarcerate every man or woman who has diverted and/or stolen N10 million, then we might just end up having more people in jail for such crimes than we would for those who have committed acts of sexual violence against women! This simply is the reality of the problem. So, why is it so difficult to prosecute white-collar criminal cases?
Speaking generally, I believe that vested interests and corruption play a major part in this regard. Speaking legally, the prosecution of complex “white-collar” crime requires some sophistication, commercial or business acumen, exposure and professional skill. Prosecutors must remember that, their case is only as good as their evidence. Consequently, they need proper investigations in order to generate sound evidence capable of assisting them in discharging the burden of proof which, only they as prosecutors must carry.
White-collar offences are often far more complex than blue-collar offences. This means that identifying that a crime has taken place is a lot more difficult, as these crimes are committed by more sophisticated defendants who are more likely to eliminate the evidential trail. To this end, investigators and/or prosecutors cannot apply the same technique that they apply to dealing with common criminals to an individual charged with a “white-collar” or financial crime. These cases involve professionals who are accomplished, such as Accountants, Lawyers, businessmen and high-level government administrators. But, those who investigate these crimes, through no fault of their own, do not possess these sophisticated personal or professional attributes, and so they are easily outmanoeuvred by the defendants who are able to retain some of the most experienced and skilled professionals to represent them.
White Collar cases tend to take years, as it can take several years for each side to investigate and present evidence for or against a defendant. In addition, politics very often plays a major role in high profile corruption cases. There is a lot of back and forth between bureaucrats and/or politicians about how to proceed with prosecuting such crimes, how much of a role the government should play, and what the penalties should be. The result – resolution takes months, if not years, because of the administrative/bureaucratic gridlock. It is the combination of these factors that has given rise, in recent years, to the use of plea-bargaining in white-collar crime cases.
What is your view on Plea Bargain as is used in Nigeria? Should it be retained? Some believe that it is just a way of getting high profile offenders off the hook as lightly as possible
The challenges outlined in my answer to your last question would suggest that a more effective way of dealing with white-collar crimes, will be for prosecutors/courts to encourage the use of plea bargaining and/or negotiation techniques as a tool in these sorts of cases, in order to get them moving to save time and very limited resources.
The process of plea bargaining which is provided for in Section 270 of the ACJA, is prevalent for several practical reasons. For example, defendants can avoid the time and cost of defending themselves at trial, the risk of harsher punishment, and the publicity a trial could involve. In the same vein, the prosecution saves the time and expense of a lengthy trial. More importantly, because we operate an adversarial system of criminal justice which is based essentially on the ability of the prosecution to prove its case beyond reasonable doubt, both sides, are spared the uncertainty of going to trial. Finally, the administration of criminal justice system, which is already lacking in resources, is saved the burden of conducting criminal trials for every crime charged, thereby reducing the caseload on a system which is already completely stretched and/or overburdened.
Although plea-bargaining is essentially a private process between the prosecution and the defendant/defence Lawyer, it encompasses the need to address the needs and concerns of other stakeholders in the criminal justice process, namely the victims of the crime charged and/or the wider public. Plea bargaining must be in the overall public interest, the interest of justice, must not give rise to the appearance of an abuse of the legal process, must reflect the gravity of the offence charged, the level of offending and must deliver justice to all the stakeholders in the administration of criminal justice process.
I guess the question we need to ask ourselves is this – Is the existing legal framework in Nigeria adequate for plea-bargaining? Sadly, in my view, despite the obvious benefits of the plea-bargaining process outlined above, the existing legal framework for plea-bargaining in Nigeria as outlined at Section 270 of the ACJA 2015 is completely flawed and perhaps, even deficient in its current form.
In that regard, the provisions of the ACJA suggest that plea negotiation should only be considered where there exists “insufficient” evidence to prove the offences charged. That then provokes the following question; why would any defendant enter into any plea negotiations, when he or she knows that the prosecution cannot prove its case against him or her? In any event, one would have thought that the rules of professional ethics would effectively bar a prosecutor from proceeding to file charges in criminal cases where there is insufficient evidence. For example, Rule 37(5) Rules of Professional Conduct suggests that a prosecutor shall not institute a charge where he knows the charge is not supported by evidence. Isn’t that what it says?
In this regard, whilst it is always the prerogative of the prosecutor to select the charge he/she wants to prosecute, Sections 236 and 237 of the ACJA itself encourages prosecutors to only select and frame charges that the available evidence can sustain, and in considering accepting pleas to a lesser offence or fewer charges. Common-sense would dictate that the thing to do in such circumstances, would be to withdraw the charges levelled against the defendant for lack of sufficient evidence, would it?
In practical terms, I am of the view that prosecutors must be trained to assess a multiplicity of factors. For example, it is not always true that a defendant who pleads guilty will receive a lenient sentence. Prosecutors must be mindful of the fact that public policy considerations may require that a lengthy sentence be imposed on a defendant even after a plea. This should be the case when the defendant was placed in a position of public trust, and is in breach of such trust. The Administration of Criminal Justice Act 2015 needs urgency review, to take cognisance of these facts in the context of white-collar criminal trials.
Having had the benefit of operating in more advanced jurisdictions and in Nigeria, what key things do you think Nigeria should do to bring our Judiciary up to speed and ensure its independence? For one, the Nigerian Judiciary is world famous for being one of the busiest in the world, with the judicial officers being one of the most poorly paid
As stakeholders in the administration of justice system, I guess the first question we should ask ourselves is; who is best placed to superintend over the proper administration of a court? In my opinion, we need to employ proper court administrators who do not necessarily have to be Lawyers, but who are experienced in the running of institutions.
Essentially, we need to introduce a central case management system that runs across all the courts. More importantly, there is a need to create more Judges. In England & Wales, they have a system of hiring part- time Judges who are taken from the Bar, who are known as Recorders. These categories of Judges can be tasked to undertake a certain level of cases, leaving the full-time High Court Judges to take control of the heavier caseload. That said, there is need to improve the quality of Judges, they should consider appointing some of them who have distinguished themselves in their careers in legal practice.
Cases that are set down for trial should be given realistic length of trial estimates, and then all trials should run on consecutive days until the conclusion of the evidence. Timetables can then be set for closing addresses and the judgement of the court. I have often wondered why a Judge would be required to read an entire judgement in court, instead of a summary of the said judgement, following which certified copies of the said judgement can be distributed to the parties thereafter. An average judgement in a case before an international court, is typically approximately 400 pages. I cannot imagine any Judge in those courts having to read the entire text in a hearing; it is simply a waste of time and resources. The same should be done with interlocutory rulings.
In addition, I have always wondered why I, as a party in a case, have to apply for a copy of the judgement in my own case. Doesn’t that go without saying? I see no reason why that should be necessary. The fees for obtaining a certified copy of a judgement can be charged by the court upfront when the filing of the court processes occur, and the judgement should be delivered in summary and copies given to the parties right there in the court. This would save valuable time.
Another major challenge I have in litigating cases in this jurisdiction, concerns the inability of Judges to observe the demeanour of witnesses who testify before them because they are busy recording the proceedings by hand. This is further complicated by the fact that there are no video recordings of court proceedings which the Judges can refer to if necessary, to observe the demeanour of the witnesses that appeared in the case. In that regard, courts should be equipped with court reporters and/or a transcription service, in order to allow the Judges take their own notes only when necessary. This would speed up trials and court proceedings generally, and would also create a new cadre of court professionals known as judicial or court reporters which can either be internally sourced or outsourced to companies that can provide this service and cost will be borne by the parties who can apply for such transcripts at a reasonable cost. This is being done in the High Court within the Lagos State Judiciary, and I hope that it will be extended to the lower courts in that jurisdiction, soon.
Lawyers representing the parties in criminal matters should be required to (i) set out the issues in the cases; (ii) Anything that is not in issue should (if absolutely necessary) be put into written admissions that are agreed by both sides; (iii) the defence should, following a prosecution case summary, submit a defence case statement setting out in broad terms what the accused persons defence to the charge is and what parts of a witness statement is challenged.
Lawyers should be discouraged from raising points of law that have absolutely no merit and are merely used as a way of delaying trials – points of law should be raised and adjudicated on were possible before the trial commences. Lawyers need to be trained in how to prosecute and defend in criminal trials – reminded of the duty a defence Lawyer has to the court, or that as prosecution counsel you are not prosecuting to achieve a conviction at all costs. I am also of the view that there is need to create civil and criminal courts, instead of what currently obtains were most courts hear all types of cases. The present system inherently creates delay, and is simply inimical to effective administration of criminal justice.
With regard to the functioning of the Appellate Courts, especially the Supreme Court, it has become rather apparent to anyone who has litigated a case before the Apex Court this year, that the Justices are becoming increasingly overwhelmed by the sheer volume of work before the court. It is in this regard that I wonder whether the Supreme Court in Nigeria can borrow the practice of the US Supreme Court whose task is limited to interpreting the meaning of a law, to decide whether a law is relevant to a particular set of facts, or to rule on how a law should be applied. To that end, in almost all instances, the Supreme Court does not hear appeals as of right; instead, parties must petition the Court for a writ of certiorari.
It is the Court’s custom and practice to “grant cert” if four of the nine Justices decide that they should hear the case. Of the approximately 7,500 requests for certiorari filed each year, the Court usually grants cert to fewer than 150. These are typically cases that the Court considers sufficiently important to require their review; a common example is the occasion when two or more of the federal courts of appeals have ruled differently on the same question of federal law.
It is my suggestion that we need to adopt such a system whereby the Supreme Court would be able to reject cases on an Appellant’s preliminary brief, say of no more than seven pages, wherein the fault of the lower court is outlined. So, once a panel of three Justices reject your preliminary brief, the matter ends there. Like the American system, a motivating factor for the Justices in accepting to hear such an appeal, will be the possibility of conflicting Court of Appeal authorities. It is my belief that such a system will go a long way in reducing the burden of cases sent to the Apex Court as of right.
Finally, needless to state that I am grossly appalled at the poor remuneration of judicial officers in Nigeria. High Court Judges in the UK in some instances, earn a lot more than the Prime Minister. I believe that concerted efforts should be made to enhance the remuneration of judicial officers, as this would attract the best quality candidates to the Bench.
Well apart from your precedent-setting international trials before the UN courts, you have also been very active in ligating landmark human rights cases, before the African Court on Human and People’s Rights, can you please talk to us briefly about your work in the area of international human rights?
Between 2013 and 2014, following my departure from the UN, I achieved another first before the African Court on Human and People’s Rights, where I successfully represented the late Rev Christopher Mtikila, the outspoken Tanzanian opposition politician, in a landmark and precedent-setting case against the Government of the United Republic of Tanzania, wherein I successfully challenged the constitutional prohibition against independent candidature for election into public office, as a violation the African Charter on Human and People’s Rights, the International Convention of Civil and Political Rights, and the Universal Declaration on Human Rights. The Mtikila v Tanzania case was a watershed moment in International Human Rights in Africa, as it was the first case to be heard by the African Court on Human and People’s Rights on its merits since its inception in 2004. It was also the first case to be decided by the Court in favour of the Applicant, and the first case before the Court on the issue of reparations.
Holding charges have become so contentious in Nigeria. Some are of the view that it has outlived its usefulness, while some think its continuous retention is necessary. On which side of the divide are you?
A holding charge involves law enforcement agencies arraigning suspects before inferior courts, which clearly lack the jurisdiction to try the offences charged. The goal is to buy time for further investigation or for the receipt of the legal advice of the DPP on the appropriate charges and the appropriate court to file them. Holding charge is used to avoid the constitutional prohibition against detention beyond a period of 24 or 48 hours without producing the suspect before a court of law, as provided in Section 35(4) of the Constitution.
So, this is how it works in practice. Suspect A is arrested on suspicion of having committed manslaughter. He is arrested and charged before a Magistrates’ Court which clearly has no jurisdiction over such an offence, following which he is remanded in prison by the said court having taken a plea to the said offence, pending the time that the Police conclude their investigations into the offence or the legal advice of the Attorney-General.
In Nigeria, holding charges are often brought under the guise of “remand proceedings”. Although used interchangeably, both concepts are completely different. A remand order is the consequential order of the court to detain a suspect in custody, pending further investigations in a criminal trial. In remand proceedings, charges are not filed, and the suspect is therefore, never arraigned. If the court is satisfied that there is reasonable suspicion of a crime, the suspect is detained for a short period of time, usually 14 days, subject to the court’s discretion to extend such detention time. The total detention time may not usually exceed 60 days in total, and this can only happen through extension.
What is contemplated in Section 35(4) and (5) of the Constitution is that the person be brought before a court, not necessarily arraigned. This is what makes remand proceedings constitutional. In fact, Section 35(5)(b) of the Constitution contemplates the possibility of detention for a longer time than 45 hours.
Therefore, criminal procedure laws like the Administration of Criminal Justice Law (ACJL) in Lagos and Administration of Criminal Justice Act (ACJA) at the Federal level, provide for remand proceedings. Remand orders are granted ex-parte, and the Court has the discretion to set conditions of bail whether the suspect applies for bail or not during such a proceeding. The suspect is not released until the bail conditions are fulfilled and/ or varied by the same court or a higher court, and then fulfilled.
To that end, detaining a suspect pursuant to a remand order fulfils the constitutional requirements in Section 35(1)(c) of the Constitution, and there will likely be no question of unlawful detention at all. In fact, both the former Criminal Procedure Act and the Criminal Procedure Code Act provide for remand proceedings. So, the ACJL did not introduce it for the first time.
Unlike holding charges, remand proceedings are deemed completely constitutional and supported by the provisions of Section 35(1) of the Constitution. In addition, the Supreme Court, in Lufadeju & Anor v Johnson (2007) LPELR-1795(SC), has held that the pre-trial detention of the suspect on remand is constitutional and valid, and by so doing, laid to rest the controversy between the two concepts.
So, in truth, the concept of a holding charge is completely unknown to Nigerian law. In addition, the concept of a holding charge constitutes a violation of the provisions of Section 35(4)(a)(b) of the Constitution. It also violates Articles 6 and 7 of the African Charter on Human and People’s Rights which provides for a person’s right to liberty, freedom from arbitrary detention, and to be heard within a reasonable time before a court of competent jurisdiction.
In terms of the jurisprudence of Nigerian Criminal law, the concept of a holding charge has over several years, been subjected to judicial review, wherein several superior courts in Nigeria have declared such practice unlawful and/or unconstitutional. See Olawoye v Commissioner of Police; Enwere v C.O.P; Shagari v Commissioner of Police; Jimoh v C.O.P; Ogori v Kolawole; Onagoruwa v State; Oshinaya v C.O.P; and, in Anaekwe v C.O.P.
The practice of holding charge raises quite several fundamental issues including the role of judicial officers and law enforcement agencies in abusing the court process, and by so doing infringing on the fair trial rights of suspects.
On a different stretch, the law mandates the judicial officer before whom a holding charge suit is brought to decline jurisdiction, and direct the FIR or Complaint to the proper court clothed with jurisdiction. The different provisions make this mandatory, and do not require either the alleged offender, the Accused, or his counsel to raise a written or oral preliminary objection before this is recognised.
It is unlawful, then, for a court with no jurisdiction over a matter to take cognisance of the matter, as has become the practice of inferior court judges today. A mere adherence to the requirements of the law will help throw this unconstitutional practice to the confines of extinction, which will ultimately dissuade prosecutors from instituting matters untimely and at the wrong places.
Do you support the criminalisation of ransom payments to kidnappers?
Let me say that criminal laws are intended as a limitation to constitutionally guaranteed human rights, especially, the right to life in the case of the death penalty; the rights to personal liberty and freedom of movement in the case of imprisonment; and the right to own property in the case of fines and forfeiture.
For any limitation placed on the fundamental rights of citizens to be legitimate, it must fulfil three constitutional requirements. Three boxes must be ticked. First, it must be specified by law; second, it must be reasonably justifiable in a democratic society; and third, it must be in the interest of defence, public order, public safety, public morality, public health or to protect the rights and freedoms of others.
The question therefore is this; does the criminalisation of the payment of ransoms to kidnappers (including terrorists and bandits) fulfil these three conditions?
Based on our own circumstances here in Nigeria, criminalising the payment of ransom is an unjustifiable limitation on fundamental rights of Nigerians. Why do I say so? Well, because two things are certain in kidnapping cases in Nigeria. The first is that if you are “a nobody” in Nigeria and you are kidnapped, then you are completely on your own. We all know that our law enforcement brothers and sisters will do little or nothing about your case in good time, even if you “mobilise” them. Secondly, if you fail to pay the ransom demanded, it is almost certain that the detained victim will be killed. That said, I accept that this also happens sometimes even when the ransom is paid. But, the odds are that the detained victim would be released on payment of the ransom. So, you are in a race against time to secure the life of the victim, who is in most cases your loved one.
Self-preservation is an innate instinct of humans. We do all we can, to protect ourselves and our loved ones from harm. Criminalising ransom is tantamount to asking a woman not to save the life of her dying child because the taste of the medicine is bitter, and that the pharmaceutical company will not cease producing that type of medicine unless it is boycotted. Until there are sweet-tasting alternatives, it makes no sense to boycott the bitter one.
The rationale for criminalising the payment of ransom is that it encourages more kidnappings, and serves as a source of funding for the kidnappers. To be honest with ourselves, law enforcement agencies in Nigeria know exactly who the real sponsors of these criminals are. In fact, they have admitted repeatedly they know who they are. But, how many of these people have been brought to justice to date?
It is my humble view that, the payment of ransom is not what encourages kidnapping in Nigeria. What encourages kidnapping in Nigeria from all indications, is a deliberate policy of the State to allow it to fester by failing to tighten the borders, utilise crucial intelligence and impliedly protecting the sponsors of such criminals. Even Nations who have a policy of not negotiating with terrorists pay ransoms, but just try to be discrete about it. You will recall that only recently, the US proposed exchanging prisoners with the Taliban.
So, punishing payment of ransom with imprisonment, fines, the death penalty etc., especially in the Nigerian context, would constitute an unjustifiable limitation of the fundamental rights to life, personal liberty, freedom of movement and ownership of property as guaranteed by the Constitution. That a law is enacted, does not make it valid. It can be struck down for unconstitutionality. We have seen that in the case of the Public Order Act in IGP v ANPP (2007) JELR 33842 (CA).
Finally, I note that the criminalisation of paying ransom as reported in the media would be contained in the Terrorism (Prevention) Act 2013 (Amendment) Bill, 2022, which had its third reading on 27 April, 2022. However, the Terrorism (Prevention and Prohibition) Act, 2022 repealed and replaced the Terrorism (Prevention) Act, No. 10, 2011 which was amended in 2013. It appears the said 2022 Act which came into force on 12 May, 2022, does not contain any provision criminalising payment of ransom. What is criminalised in Section 24 of the 2022 Act is demanding ransom, among other things. This is just like the provisions in various criminal laws in the country.
What is your opinion about the ongoing Nnamdi Kanu case, his extraordinary rendition, and the Court of Appeal judgement discharging him. Would you say that the Nigerian Government has followed due process? Is his continued detention lawful? If not, what are the proper steps that should have been taken?
I have not had the privilege of reading the full judgement of the Court of Appeal. However, from the excerpts of the final orders made by the Court of Appeal as reported in the media, it appears Mr Kanu has not been acquitted of the charges levelled against him. The practical effect of the Court of Appeal’s decision, is simply that the correct procedure was not followed in filing those charges, and that until such a defect has been corrected, those charges cannot be sustained against him.
To that end, it must be said that there is a marked difference between a defendant in a criminal trial being discharged, and a defendant in a criminal trial being acquitted. When a defendant is discharged, that presupposes that the question of whether that defendant has been adjudged as guilty, or not has not been answered at all. A discharge simply means the charges preferred against the defendant have been struck out. In order words, the practical effect of a discharge, is that the charges can be refiled when the defect has been corrected or remedied.
The practical effect of an acquittal on the other hand, is that the question of whether the accused person is guilty of the charges has not only been answered but also decided in the defendant’s favour, following a trial on the merits. The main difference is that acquittal is pursuant to a trial on the merits, while discharge is in the absence of a trial on the merits.
In addition, a discharge does not prevent the application of the double-jeopardy principle (the non bis in idem principle), as the said principle is not applicable without a trial on the merits. The double-jeopardy principle is only applicable to a case which has been tried before a court of competent jurisdiction. In this regard, a discharge by a court on procedural grounds, does not constitute an acquittal of a defendant in criminal proceedings. Accordingly, the defendant who has been discharged cannot invoke the double-jeopardy principle to prevent his subsequent trial on the charges which formed the basis of his discharge.
The Attorney-General of the Federation can refile the charges against Mr Kanu, provided he has cured the procedural defect which led to his discharge in the first place. Alternatively, he can appeal the decision ordering the discharge, on the basis that there were no procedural defects necessitating such discharge. I am not sure if that is what is being done now, as I am not privy to the proceedings. Besides, if the Supreme Court is now seised of the matter, pursuant to an appeal brought by the Federal Government, then, of course, there is a limit to which public comments can be made thereof.
Thank you Dr Adeogun-Phillips.
