ACJA: So Far… Not So Good

lady-justiceMore than one year after it came into being, the Administration of Criminal Justice Act (ACJA), which is designed to eliminate delays in trials, seems not to be serving its purpose. This is provoking questions on its suitability. Eric Ikhilae writes

MANY hailed the Administration of Criminal Justice Act (ACJA) as the antidote to endless trials. But over a year after its enactment, justice is still not being served speedily.

The Act, which has some innovative provisions, aimed mainly at ensuring speedy criminal trial, became effective in May, last year, shortly after it was assented to by former President Goodluck Jonathan.

Key Provisions

The ACJA has key provisions , such as those contained in Sections 15(4), 306, 376 and 396, aimed mainly at speeding up criminal trials.

Section 15 (4) provides for electronic recording (including video) of a suspect’s confessional statement. This is intended to eliminate time wasted by the court in conducting trial-within-trial, where the voluntariness of such statement becomes an issue.

Section 306 is directed at eliminating delays often occasioned by interlocutory appeals. It states: “An application for stay of proceedings in respect of a criminal matter before the court shall not be entertained.”

Section 376 stipulates the time limit for the issuance of legal advice by the Director of Public Prosecution (DPP). This is aimed at eliminating the delay caused by the inability/failure of the DPP or the office of the Attorney-General of the Federation (AGF) to issue such opinion on time.

Section 396 dictates how proceedings should be conducted from inception to conclusion, thereby eliminating every opportunity for delays. It provides, among others, time for raising certain objections, the conduct of day-to-day trial (provides alternative where not applicable) and the number of adjournments allowed within the life of a case.

 ACJA, One Year After

More than a year after the introduction of the Act, there is still concern that the ailment it was meant to cure persists.

Many reasons, observers say, account for this. Despite the innovative enactments in the ACJA, proceedings in criminal cases, particularly those involving high-profile individuals, progress at snail speed.

Observers argue that, beyond the fact that the court system is managed by humans, and as such perfection cannot be expected, the judicial system is yet to be fully weaned from the effect of external manipulations.

An example is the trial of the Senate President, Bukola Saraki, before the Code of Conduct Tribunal (CCT) on charges of false assets declaration. Although Saraki took his plea on September 22, last year, the prosecution has been unable to move beyond calling its first witness.

After months of delay, with Saraki challenging almost every step taken by the tribunal, including its jurisdiction and composition, trial eventually commenced on April 5, this year, with the calling of the first prosecution witness, Michael Wetkas.

The prosecution wasted no time as Wetkas concluded his evidence-in-chief on April 18 (within three adjournments). But it took the defence 14 adjournments, spanning over seven months, to cross-examine the first prosecution witness.

The defence team, comprising senior lawyers such as Kanu Agabi (SAN), Joseph Daudu (SAN), Paul Erokoro (SAN), Paul Usoro (SAN), Mahmud Magaji (SAN), among others, cross-examined Wetkas between April 18 and November 8, this year.

When the defence announced its conclusion of what the prosecution lawyer, Rotimi Jacobs (SAN), described it as the “longest cross-examination in the history of the nation’s criminal jurisprudence.” The tribunal also stunned all when it adjourned further proceedings from November 8 to January 11, next year.

Those who have followed proceedings in the Saraki case have argued that, beyond the fact that the defence had exploited all delay tricks in the books to their advantage, the tribunal members had not also held their ground in preventing delays.

Observers argue that beside the cross-examination that took such a long time, the tribunal, either wittingly or otherwise, contributed to the delay when it, on many occasions, took arguments on interlocutory applications and made rulings on the mere excuse that such applications touched on its jurisdiction.

Other Reasons For Delay

Another reason for delay is the failure of the investigators to comply with the provision of the Act requiring video recording of the confessional statement of a defendant. In most instances, investigators do not comply or simply engage in manipulating such procedures.

This development still accounts for why courts are still subjected to the time-wasting rigour of conducting trial-within-trial.

The trial of former Head of Service of the Federation (HOS) Stephen Oransanye, Osarenkhoe Afe and some firms before Justice Gabriel Kolawole of the Federal High Court in Abuja over an alleged N1.2 billion fraud, has been stalled since May this year.

Proceedings were stalled when the defence opposed an attempt by the prosecution to tender, through its first witness, a confessional statement purportedly made by Afe.

Afe’s lawyer Oluwole Aladedoye argued that the statement was obtained by force, a claim the prosecution denied, prompting the trial judge to order a trial-within-trial, which is yet to be concluded.

Delay also arises when the prosecution is not co-ordinated. Where the prosecution is not diligent in its duties, delay occurs in most instances. A good example of this is the trial of former Abia State Governorz Orji Uzor Kalu, his ex-aide, Jones Udeogo and the former governor’s company, Slok Nigeria Limited.

They were initially arraigned before a Federal High Court in Abuja in 2007. They took advantage of the existing situation then and stalled proceedings, appealing up to the Supreme Court on the competence of the charge.

Earlier this year, the Supreme Court dismissed their appeals and ordered them to submit themselves for trial. They were re-arraigned on September 27, before another judge of the Federal High Court, Abuja, Justice Anwuri Chikere, following the retirement of the earlier judge, Justice Adamu Bello.

The new judge granted them bail and adjourned till December 6 for the commencement of trial. However, in mid-October, the prosecuting agency, the Economic and Financial Crimes Commission (EFCC), applied for the transfer of the case to the Lagos Division of the Federal High Court.

They were re-arraigned before Justice Mohammed Idris of the Federal High Court, Lagos on October 31, thereby causing the case to start afresh in Lagos.

The apparent conflict of interests among the AGF, the EFCC and the Department of State Services (DSS) has also contributed, in no small measure, to delays in the many criminal cases pending in court.

Some of the cases affected by the perceived conflict among these agencies of government include the ones involving former National Security Adviser (NSA) Sambo Dasuki, member of the Presidential Committee investigating the procurement of arms and equipment in the Armed Forces Air Commodore Umar Mohammed and former Imo State Governor Ikedi Ohakim.

Dasuki is facing three charges, marked: FHC/ABJ/CR/319/2015, FCT/HC/CR/43/2015 and FCT/HC/CR/42/2015. In FHC/ABJ/CR/319/2015, he is charged with money laundering and illegal possession of firearms.

He is charged with former Director of Finance, office of the NSA, Shuaibu Salisu; a former Executive Director of the Nigerian National Petroleum Corporation (NNPC), Aminu Baba-Kusa, and his two companies –  Acacia Holding Limited, and Reliance Referral Hospital Limited, in FCT/HC/CR/42/2015,  for allegedly diverting public funds running into billions of naira.

Dasuki is also charged with the ex-Minister of State for Finance, Bashir Yuguda, a former Governor of Sokoto State, Attahiru Bafarawa, his son, Sagir Bafarawa and their company, Dalhatu Investment Limited for allegedly stealing about N9.2 billion from the office of the NSA, in FCT/HC/CR/43/2015.

The ex-NSA was first arraigned before Justice Adeniyi Ademola of the Federal High Court, Abuja on charge marked: FHC/ABJ/CR/319/2015 on September 1, 2015.

He and others were consequently arraigned on December 14 and 15, 2015 in relation to other charges (before Justices Hussein Baba Yusuf and Peter Affen of the High Court of the Federal Capital Territory, Abuja).

Of the three cases against Dasuki, the prosecution has only been able to commence trial in the case before Justice Ademola of the Federal High Court. Only one witness has testified in the case. He is an operative of the  DSS, Samuel Ogbu. He started his testimony on May 18 and concluded on May 19 after the defence cross examined him.

Proceedings in that case have now been halted with the invasion of Justice Ademola’s house and his arrest by the DSS.

It has been difficult for the prosecution to commence trial in the other two cases before the High Court of the FCT, owing to series of applications by the defence. The applications mainly challenged the alleged refusal by the DSS to release Dasuki from its custody, having been granted bail by all the courts.

Instances also abound where the DSS, in whose custody Dasuki is kept, simply failed to produce him in court, without the prior knowledge of the prosecution lawyer engaged by the EFCC. The court has had to adjourn in such instances owing to the DSS inability to produce the defendant in court.

Progress has also been impeded in the case involving Mohammed owing mainly to the DSS refusal to comply with court orders, granting him bail and directing his transfer to prison custody.

On November 28, this year, the second judge handling the case, Justice John Tsoho of the Federal High Court, Abuja declined the request by the state to commence trial in the case. The judge’s decision was informed by his realisation that the prosecution has refused to comply with his earlier order granting bail to the defendant

What has gradually become a habit of indiscretion on the part of the DSS has also stalled proceedings in the trail of Ohakim. He was arraigned on July 8, 2015 on a three-count charge of money laundering, to which he pleaded not guilty.

The prosecution closed its case on May 5, 2016 after calling six witnesses. Rather than open his defence, Ohakim chose to make a no-case submission and, in a ruling on June 30, the trial judge dismissed Ohakim’s no-case submission and ordered him to enter defence.

But before October 10, 2016 date fixed for Ohakim to open his defence, the DSS stormed Justice Ademola’s home and arrested him. The case may soon be reassigned to another judge for it to commence afresh.

However, those who argued that it is impossible to fully implement the provisions of the Act under the current regime of court management, pointed to the provision that criminal trials are conducted on day-to-day basis, and are impossible where the same judge is saddled with both criminal and civil cases.

They argued that even where the judge was diligent and willing to ensure swift conclusion of the criminal cases, the other cases would suffer where he devoted too much time to criminal trials.

They also noted that provisions in Section 396(4) and (5), which say that the time between one adjournment to another should not exceed 14 days and that where parties exhaust their five adjournments each, the interval should not be more than five days, have also not been practicable.

This, they attributed to the fact that aside time allocated for the court’s vacations, judges are sometimes unable to attend courts, either because they are away attending seminars/ workshops or they are sitting outside their current jurisdictions.

This in in line with with the provision that allows elevated or transferred judge to conclude his/her part-heard cases to prevent situations where such cases start afresh

Examples are the trials of former Chief of Air Staff, Alex Badeh and ex-spokesman of the Peoples Democratic Party (PDP), Olisa Metuh, before Justice Okon Abang. Although proceedings have progressed appreciably, the cases have nonetheless, experienced some unavoidable delays caused mainly by some of these factors.

Experts Speak

Law experts have also expressed concern over why the nation’s Judiciary appears reluctant to address its core malaise of delay in criminal trials by embracing, and wholeheartedly applying the many beautiful provisions of the ACJA, more than a year after its introduction.

The latest of such concerns was expressed by the Executive Secretary of the Presidential Committee against Corruption (PACAC), Prof Bolaji Owasanoye, who blamed the persistent delay in criminal trials on the court. He argued that where judges strictly comply with ACJA, high profile cases would no longer sit the court’s docket for years.

Owasanoye said: “If you do a thorough analysis of all the high profile cases that are hanging in court, they are not hanging because investigation was poor. It is because the suspects are manipulating the court system.

“If you accuse me of corruption and I have a good defence, why should I want the case to go on for 10 years? I should be the one insisting on no adjournment. I would want my case quickly concluded so I can clear my name, but that’s not what you get.

“So, while there’s need for thorough investigation, we should understand that the reason corruption fight is slow is because of the high tolerance of the courts of the shenanigans of lawyers.

“Once the judges stamp their foot and say: ‘I will not entertain an adjournment, this case must proceed,’ you will see changes. We’ve seen those situations in this country before. We need to get the narrative right,” Owasanoye said.

A retired judge, Justice Babasola Ogunade, shared the blame among three distinct players within the system – the prosecutor (who he said must be thorough), the defence lawyer (who mostly rely on delay tactics) and the judge (who, he said must be firm).

Justice Ogunade, who retired from the Ogun State Judiciary said the judge’s responsibility is to decide any case brought before him/her by applying the laws and rules.

“As a judge, I work by the rules. I work by the law. You bring a matter before me, you are the prosecutor. You are the one, who will tell me that this one that I have brought before you, the law enjoined me to do this and that to him/her. And that is what I brought before you. He has applied to you, do what you have to do.

“But, it takes two to tango. The criminal, who has a lawyer, comes and cooks up something; whether right or wrong, he might say,’ my lord, you don’t have jurisdiction to deal with this matter.’

“The moment he raises jurisdiction, he forgets the facts of the case. We deal with the issue of jurisdiction. At the end of it, I say I have jurisdiction to deal with the matter. He says, ‘I am going on appeal.’ You have no right to say he shouldn’t go on appeal.

“I was speaking with a retired justice of the Supreme Court not too long ago. And I said, why are we having so much congestion in the Supreme Court; that Supreme Court is now like the High Courts, having so many cases? He said what they are facing there are all these interlocutory appeals.

“The ACJL Act is supposed to take care of that, but lawyers will go from the High Court to the Appeal Court and to the Supreme Court. I can tell you this, it takes a bit of courage to do what you must do. A lawyer comes to you and you find that this one is being mischievous, you look at the law.

“If his argument is not right, you overrule him there and then. Let him go on appeal if he likes. They know me by the number of cases that I have done. But these days, you don’t have it because there is too much intimidation all over the place,” Justice Ogunade said.

The Executive Director of the Centre for Justice and Social Equity (CJSE), Dr. Charles Apoh, argued that the retention of the current arrangement in the management of the court system will continue to encourage delay in most cases, particularly criminal trials.

He argued that it was wrong for the country to retain a system where a judge is allowed to handle various types of cases, when he/she should have been encouraged to specialise in certain areas of law.

“Why would you assign criminal, civil, business and election matters to a single judge? This practice has its many drawbacks. Aside, the judge will not have the opportunity to specialise, he/she can never be thorough.

“We should emulate what is done in other jurisdictions. If we cannot immediately amend the Constitution to create special courts for certain criminal cases, we can work, through the various court heads, to designate some judges to handle only criminal cases, while others are assigned to election or business related matters.

“I also think we should begin to look towards providing a time frame for the conduct of criminal cases. We cannot allow people to continue to explore the weakness of the system. Look at the Saraki’s case before the CCT, where he spent over seven months cross-examining a witness.

“That is absurd. It should not be tolerated under any guise of fair hearing.  The tribunal members ought to be sanctioned for, on their own, encouraging delays and condoning all manners of tricks,” Apoh said.

Reported by:

Author: PRAWA

PRAWA is a Non-governmental organization aimed at promoting Security, Justice and Development in Africa. It was established in 1994.