ANALYSIS: Broken justice sector, failing anti-corruption war, other things new AGF Fagbemi must fix

It is a new chapter in Nigeria’s justice sector with the emergence of the 24th Attorney-General of the Federation and Minister of Justice, Lateef Fagbemi.

He acknowledged the high expectations of the public and the enormity of the challenges ahead on assuming office at the Federal Ministry of Justice in Abuja, shortly after President Bola Tinubu inaugurated him and 44 other ministers on Monday.

His double-fold roles as the coordinator of the administration of justice and the chief legal adviser to the federal government and the federation permeate all sectors – economy, security, and others.

The 64-year-old has a towering profile from indelible imprints on the Nigerian legal landscape.

The jurist, who hails from Kwara State, was 37 years old when he became the youngest lawyer, then, to earn the coveted Senior Advocate of Nigerian (SAN) rank. He was exactly 10 years old at the bar at the time.

Reputed for his legal brilliance, Mr Fagbemi espoused the legal principle that gave a surprising court victory to the future Minister of Transport, Rotimi Amaechi, paving the way for him to be Rivers State governor without taking part in the general election in 2007.

“He is an extremely brilliant lawyer. If you are looking for a reform-minded lawyer with all-round exposure to all facets of legal practice as the AGF, then President Tinubu has made the right choice,” Olanrewaju Akinsola, a lawyer, who has worked closely with the new AGF for years, said.

The Rector of the Yaba College of Technology, Lagos, Adedotun Abdul, also spoke of how various crises of the institutions were resolved and sanity restored through the reforms driven by Mr Fagbemi when he chaired the college’s governing council.

However, the daunting challenges of Nigeria’s justice sector and other sectors, including the economy, and security that depend on it require more than courtroom brilliance to make a difference as Nigeria’s attorney-general.

Long-existing problems that haunt the system include a broken judiciary and justice administration, a befuddled anti-corruption war, a lack of political will to enforce the law and act in the public interest, human rights abuses and rule of law somersaults.

The problems ingrained in the system are delicately interwoven and interdependent: success or failure in one area largely determines the outcome in others. It ultimately will determine how far the Tinubu administration will go in other sectors, including security and the economy.

Anti-corruption

Mr Fagbemi must learn from the failures of the anti-corruption war of the President Muhammadu Buhari era.

The war failed from the office of the AGF, apart from the fact that Mr Buhari’s vow to fight corruption was not matched with sufficient will.

The then AGF, Abubakar Malami, the supposed anchor for the anti-corruption project of the government, was unable to coordinate and rally relevant agencies towards the administration’s goal.

In his memoir, titled, ‘Traversing the Thorny Terrain of Nigeria’s Justice Sector: My Travails and Triumphs,’ which he released weeks to the end of his tenure in office, Mr Malami documented his hostility with key anti-corruption figures in the government and how they derailed some of his anti-corruption initiatives.

They include the Ibrahim Magu-led Economic and Financial Crimes Commission (EFCC) on one hand, and the the Presidential Advisory Committee Against Corruption (PACAC), a body of President Buhari’s top anti-corruption advisers led by Itse Sagay, a Law professor and SAN, on the other. He blamed the failure of his initiative – the National Prosecution Coordination Committee (NPCC) set up to handle high-profile corruption cases on PACAC’s antagonism.

He and Mr Buhari at various times also blamed the judiciary. Mr Malami blamed the judiciary for the delays of high-profile anti-corruption cases in court, while Mr Buhari specifically attacked the Supreme Court under the leadership of former Chief Justice of Nigeria (CJN), Walter Onnoghen, of serially freeing persons accused of “the most dire acts of corruption” even when such persons had been convicted by the lower courts.

But while the administration heaped the blame on the judiciary, the government, based on the recommendations of a presidential committee headed by Mr Malami, pardoned two convicted former governors while they were still serving their jail terms, undoing the most profound successes of the anti-corruption war in the history of the country.

Mr Malami also terminated corruption and other high-profile criminal cases, not minding the severity of the crimes that were involved and the public interest.

Prosecution of corruption cases floundered, while the Buhari administration went on appointing high-profile corruption suspects to top positions.

The outcome is that Nigeria remains in the bottom 30 on the list of 180 countries and territories of the world on the Corruption Perception Index (CPI), the Transparency International (TI)’s tool for measuring levels of public sector corruption.

This implies, according to TI, that Nigeria and other poorly performing countries are “failing to stop corruption”.

When corruption is unchecked, proceeds of corrupt activities leak into the system and make the rounds to foul the stream of justice. The ICPC, in 2021, reported that the judiciary had the highest corruption index with “bribe for judgment” as “one of the most egregious forms of grand corruption” undermining “the very essence of judicial dispute resolution”.

Mr Fagbemi, during his screening by the Senate, laid out a broad plan on how to fight corruption. He emphasised, among other measures, the need to invest heavily in investigations by the anti-corruption agencies as a key priority. A number of corruption cases filed in court under the previous administrations failed on the basis of poor investigations, although unethical practices also sometimes tainted some court decisions.

A far-reaching proposal he also hinted at is redesigning the anti-corruption agencies to focus only on investigations. Investigations and prosecution “should not be handled by the same body,” Mr Fagbemi said.

The proposition appears to sit well with many senior lawyers, including a former President of the Nigerian Bar Association (NBA), Olisa Agbakoba, who called on the new AGF in a statement on Monday “to unbundle EFCC and restrict them to investigation only while a new National Prosecution Agency ought to be established.”

Another SAN, Adegboyega Awomolo, told PREMIUM TIMES that “it is not proper for the same body to investigate and prosecute. It is incongruous. The EFCC, ICPC and the police should do the investigations, the Attorney-General of the Federation through the Department of Public Prosecutions should control the prosecution,” he said.

But Olanrewaju Suraju, the chair of anti-corruption non-profit organisation, Human and Environmental Development Agenda (HEDA), disagreed, saying their propositions may be a pipe dream. “As a defence lawyer for many years, he may think it can work out that way. It is hardly as easy as he thinks it is.”

Even if the plan succeeds, Mr Suraju said, it may create unintended consequences, including delays like police cases usually suffer at the office of the Department of Public Prosecutions (DPP) in the federal and state ministries of justice.

“You can imagine what happens to the files sent to the DPP suffering undue delay and sometimes total negligence,” he added.

Mr Suraju rather suggested that the AGF should support the anti-corruption agencies and ensure “they enjoy as much independence as possible to do their job.”

Mr Fagbemi, who had a stint as an ICPC prosecutor, had been more devoted to the defence of high-profile corruption suspects than prosecution. Now as the AGF, his commitment to ridding Nigeria of corruption must supersede the loyalty and interests he may have for clients facing corruption investigations or prosecution. He must be able to take impartial and definite actions on corruption cases no matter where his sympathy lies.

Mr Suraju also advised the new AGF to incorporate anti-corruption into the broad agenda of the Tinubu administration, which is currently deficient in that regard.

He also called on Mr Fagbemi to work with the judiciary to ensure the effective implementation of purpose-designation of courts to handle solely financial and corruption cases.

Also, Mr Agbakoba advised Mr Fagbemi to urgently embark on major reforms of the criminal justice system “with particular reference to the utter confusion in the duplicated work of our law enforcement agencies, in particular EFCC and ICPC.”

Human rights lawyer Femi Falana, also a SAN, recommended to the new AGF to refile the corruption cases Mr Malami withdrew in disregard for the public interest.

The prosecution of many anti-corruption cases, including those involving the alleged diversion of arms procurement funds, which the Buhari administration, in its early days, made a hue and cry about, have lost steam.

Mr Falana urged Mr Fagbemi to lead prosecution teams in court in important corruption cases to emphasise the seriousness of the cases.

Mr Fagbemi also needs to revamp the docile Code of Conduct Bureau (CCB), a key anti-corruption agency with exclusive jurisdiction to enforce the code of conduct for public officers. The body, with its sister institution, the Code of Conduct Tribunal (CCT), has over the years remained a tool in the hands of successive administrations for fighting their perceived adversaries.

Human rights, rule of law

Nigeria’s human rights profile is “very bad” and “worse than [the] average in sub-Saharan Africa,” according to a report released in June by the Human Rights Measurement Initiative (HRMI), a New Zealand-based organisation measuring the human rights performance of countries.

Mr Falana attributed Nigeria’s poor human records to a lack of strong will on the part of the AGF office to enforce the laws.

He said Nigeria has “one of the most robust human rights regimes in the world” given the array of legislations that are in place to safeguard the rights of citizens.

“All the attorney-general needs to do is to read the riot act for respect of the rights to officials and agencies of government,” Mr Falana said.

The wide scope of rights abuses in Nigeria includes failure to bring perpetrators to book. The AGF’s office has not shown commitment towards implementing the report of a public enquiry recommending the prosecution of police officers for extra-judicial killings and other criminal abuse of citizens’ rights.

Uju Agomoh, the executive director of Prisoners’ Rehabilitation And Welfare Action (PRAWA), in an 11-point agenda she set for the AGF, called for the prosecution of the erring police officers and the implementation of other salient recommendations of the report of the public enquiry. The panel was set up by the NHRC in the aftermath of the October 2020 #EndSARS protests over the inhuman activities of its operatives of the now-defunct police unit, the Special Anti-Robbery Squad (SARS).

Ms Agomoh, who was a member of the panel of enquiry, versions of which were also set up in states of the federation, urged Mr Fagbemi to ensure public apologies are given to victims of torture, cruel, inhuman and degrading treatment and all other human rights violations.

She urged the new AGF to “make a public commitment to the observance of human rights, zero tolerance to corruption and to taking all necessary steps to redress all abnormalities and to ensure that Nigeria commits fully to the observance of rule of law.”

Many have also encouraged Mr Fagbemi to make real his promise during his screening by the Senate to ensure strict obedience to court decisions by the government.

“Nothing else brings infamy to any government more than disobedience to court orders. It was rampant during the last administration of Buhari,” Mr Awomolo said.

Mr Awomolo, who prosecuted Farouk Lawan, a former member of the House of Representatives jailed for receiving a bribe while leading a legislative enquiry into the fuel subsidy regime in 2012, said Mr Fagbemi must bring law enforcement agencies which are guilty of disobeying court orders under his control.

In June 2021, Mr Malami gloated about the arrest of the leader of the proscribed Indigenous People of Biafra (IPOB), Nnamdi Kanu, from Kenya, unmindful of the implication of the arbitrariness and breach of international laws in the manner he was brought to Nigeria for his trial.

The federal government lost the case against Mr Kanu at the Court of Appeal on the grounds of the illegal manner of his transfer to Nigeria. Mr Fagbemi inherits the conundrum of Mr Kanu’s case.

Ms Agomoh called for the release of Mr Kanu to “rebuild public confidence” in the government.

Criminal justice and security

Thousands of Boko Haram suspects remain locked up in military detentions in different parts of the country. In regular prisons, almost 70 per cent of inmates are awaiting trial.

Unable to bring perpetrators to book, Nigeria’s criminal justice system encourages wrongdoers – including, terrorists, kidnappers, and other violent crime perpetrators – to continue with their crimes.

The Buhari administration, through Mr Malami, repeatedly promised to prosecute thousands of suspected members of Boko Haram (a terrorist organisation that has waged a relentless devastating war in the North-east for over 10 years) held in military detentions.

Mr Malami, in 2021, announced the arrest and plan to prosecute some terrorism financiers. But he not only rebuffed requests by the public to expose the suspects, he also failed to bring them to trial as he vowed, strengthening an allegation that some unnamed top officials of the Buhari government had compromised the case.

Nigeria’s criminal justice system is plagued by lengthy pretrial detentions, multiple adjournments resulting in years-long delays, shortage of trial judges, trial backlogs, endemic corruption, bureaucratic inertia, and undue political influence hampering judicial processes, says a report by the Department of State of the United States.

Ms Agomoh called on the AGF to ensure strict compliance with the provisions of the Administration of Criminal Justice Act (2015), Nigerian Correctional Service Act (2019), Anti Torture Act 2017, Child Rights Act, and VAPP Act, among other laws aimed at improving Nigeria’s criminal justice system.

She also called for the establishment of mechanisms to promote effective coordination and resolution of inter-agency conflicts between government institutions.

Mr Agbakoba called on the AGF to push for major reforms of “the criminal justice system with particular reference to the utter confusion in the duplicated work of our law enforcement agencies in particular EFCC and ICPC”.

Economy

Foreign loans, which are part of the burdens on the Nigerian economy today, during Mr Buhari’s administration, tripled the combined figure recorded by the three previous administrations since 1999. The loans had the imprimatur of Mr Malami who served as the AGF during the period.

Mr Malami wrote in his memoir how he succumbed to pressure to give tacit support to the waiver of Nigeria’s sovereign immunity to secure some Chinese loans.

According to his account, Mr Malami initially aligned with the position taken by the previous Goodluck Jonathan administration in 2014, arguing in a letter to his cabinet colleague, the Minister of Finance, that a sovereign state like Nigeria “cannot be compelled to submit to the jurisdiction of another state and no enforcement proceedings can be brought against the properties of a sovereign in the courts of another country.”

But despite his strong cautionary advice to the Minister of Finance, he succumbed to the pressure from his colleagues, including the ministers of finance, aviation, works and housing, and interior, who were in desperate need of funds to complete their legacy projects. Mr Malami said he had to cede the responsibility of taking a decision on matters to the Federal Executive Council (FEC).

“It was therefore a collective decision by the Council,” the former minister said of the directive given to him by the FEC in October 2022 to give effect to the “outstanding loans and development financing facilities with Chinese Exim Bank”.

Mr Malami also described the vetting and legal perfection of commercial agreements and other forms of agreements involving the federal government as one of the potent legal interventions of the AGF office in economic matters.

He wrote that there were “a number of interested insider agents” always working to insert “hidden dangers of beneficial clauses targeted at defrauding the government or exploiting the innocent citizens of Nigeria”. The nation, as a result, incurs humongous liabilities. The P&ID agreement which led to as much as a $9.6 billion arbitral award against Nigeria is a typical case.

Although Mr Malami’s revelation did not include his efforts to expose and bring such economic saboteurs to book, it provides profound insights into an issue Mr Fagbemi must take seriously.

Mr Falana told PREMIUM TIMES the AGF must know his onions and should never pass the buck when it is necessary to take a firm stand.

Another area Mr Fagbemi must pay attention to is oil theft and its perpetrators.

Amid Nigeria’s dwindling revenues, pipeline vandalism and oil theft remain a major drain on the economy that successive AGFs have ignored. Nigeria lost as much as $10 billion to oil theft within seven months last year.

It is a criminal enterprise that is said to involve powerful and influential persons. In one of the rare cases where some high-profile suspects were caught and charged, the Malami-led Federal Ministry of Justice, last year, entered into a “dirty plea agreement”, enabling the oil thieves and the vessel with which they stole about N200 million worth of crude oil to walk free after paying paltry fines.

Mr Falana urged Mr Fagbemi to show more than cursory interest in cases of huge economic importance whether criminal or civil in nature.

The new AGF must also build on the successes the Buhari administration recorded in repatriating looted assets from foreign nations but should be more accountable in using them.

Judiciary

The courts, crucial to the success of the diverse activities of the AGF office, are clogged and inefficient.

“It’s a crying shame it takes upwards of 15 years to conclude cases from the high court to the Supreme Court,” Mr Agbakoba lamented on Monday.

The devastating delays of cases are only symptoms of deeper problems. Perverse court decisions, such as the one spotlighted by the Supreme Court in a former bank chief, Francis Atuche’s fraud case, are also a fallout of a systemic failure across Nigeria’s court hierarchy. Conflicting decisions of courts of concurrent jurisdictions are another.

The causes of these are deeper issues of ethical collapse, questionable appointment process, poor budgetary allocations to the judiciary coupled with corruption and lack of accountability by the managers of the arm of government.

Amid the free-fall in values, disciplinary actions of the National Judicial Council (NJC) have dwindled under the leadership of the incumbent CJN, Olukayode Ariwoola, and his predecessor, Tanko Muhammad.

On the watch of the two CJNs, the NJC sank to a new low of reversing its disciplinary decision against a judge, capitalising on Mr Buhari’s tardiness in approving the body’s earlier recommendations.

This year has also recorded an upsurge in the recall of judges who were removed from office over corruption trials or acts of judicial misconduct, a sign of a lack of consensus on ethical standards in the legal profession.

The NBA, under the leadership of its president, Yakubu Maikyau, and his predecessor, Olumide Akpata, has repeatedly lamented that public confidence in the judiciary and the legal profession generally has reached an all-time low.

The judiciary is a separate arm of government over which the AGF lacks the power to control, yet Mr Fagbemi needs it to function effectively to make any difference in the justice sector and other concerns of his ministry including security and recovery of looted assets.

Mr Falana said there are windows of opportunities Mr Fagbemi can explore.

As he acknowledged during his screening by the Senate, Mr Fagbemi can play a pivotal role in sanitising the bar, which is usually the supply end of unethical practices in the judiciary and the entire legal profession, through robust and impartial enforcement of the disciplinary regime of the bar.

Mr Falana urged Mr Fagbemi to use the justice platforms he shares with the leadership of the judiciary at various levels to hold robust engagement with the judiciary on issues such as appointments to the bench and the internal disciplinary mechanisms of the judiciary.

Mr Agbakoba urged the new AGF to engage with the judiciary on how to create sector-specific dispute resolution agencies to free up the utterly cluttered dockets of the regular courts.

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He also advised Mr Fagbemi to embark on a “major revamp” of “outdated laws” in the hope of enhancing justice administration in the country.

On her part, Ms Agomoh advised the new AGF to help push for the implementation of the NJC’s National Judicial Policy, broadly covering all issues of ethics, discipline and appointment of judges.

Mr Fagbemi also needs to ensure the upward review of the remuneration of judges which the Buhari administration promised but could not implement.

He also has to work with the CJN to ensure the Supreme Court, which currently suffers the brunt of a severely depleted bench, gets its full complement of 21 justices as soon as possible.

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