A legal practitioner and prosecuting counsel
for the Economic and Financial Crimes Commission, Mr. Festus Keyamo, has
sent a proposal to the National Assembly to amend the Constitution and allow for speedy dispensation of criminal trials.
The lawyer said the proposal became necessary because the “delays in the administration of criminal justice in Nigeria, especially corruption-related cases, have become a notorious fact.”
Mr. Keyamo is proposing that the National Assembly inserts a clause in the Constitution which is similar to section 40 of the EFCC Act which states: “Subject to the provision of the Constitution of the Federal Republic of Nigeria 1999, an application for stay of proceedings in respect of any criminal matter brought by the Commission before the High Court shall not be entertained until judgment is delivered by the High Court.”
He urged the National Assembly to insert this clause after section 248 and should read thus:
“1. Notwithstanding anything contained in this Constitution, including Chapter IV of this Constitution, any person who exercises any right of appeal under this Constitution in criminal matters shall not be entitled to a stay of proceedings pending the determination of the appeal.”
See the complete proposal that Mr. Kayemo sent to the National Assembly below:
The delays in the administration of criminal justice in Nigeria, especially corruption-related cases, have become a notorious fact. Well-meaning Nigerians have consistently raised alarm about this issue. And it is a well-known fact that justice delayed is justice denied. Justice is denied to the generality of the people of Nigeria when those who are alleged to have committed heinous crimes against the State make nonsense of the law and delay their trials by clever tricks and continue to walk the streets and work their way into public offices to perpetrate more crimes whilst their criminal cases are pending in different courts. At the end of the day, the cases are lost because of the death of witnesses, loss of memory by witnesses, loss of exhibits, loss of interest and zeal by prosecutors and the aggrieved by effluxion of time, the compromise of witnesses by the accused, e.t.c.
Various suggestions have been proffered in the past to address this issue, but none has resolved the problem of delay.
Having prosecuted and defended various high profile criminal cases in various courts in Nigeria, I find myself in a vantage position to humbly proffer the following suggestions that would resolve, once and for all, the problem of delay in criminal trials in Nigeria.
PREVAILING CIRCUMSTANCES
In all criminal trials in Nigeria, especially the corruption-related cases, no matter how good the case of the prosecution is, the accused persons, through their lawyers, have now devised a common scheme or strategy to delay the trials and invariably thwart the whole legal process; they simply raise all manners of PRELIMINARY OBJECTIONS to either the Charge, or the proof of evidence, or the appearance of counsel or relating to jurisdiction of the court. They may also wait for the prosecution to lead evidence and then make a no-case submission.
Once they are overruled, (which happens in most cases as most of the Courts find those applications or submissions frivolous) the Accused persons immediately file interlocutory appeals to higher courts and would always request the lower courts to stay trials pending the appeals. Once the trials are stayed by the lower courts, the appeals take a number of years to get to the Supreme Court before they are referred back to the courts of first instance to begin the proper trial. And take note that there is nothing stopping the defence lawyers from raising another fresh preliminary issue again that they may warrant them going on appeal again and asking for a stay of proceedings again. And this kind of game can go on and on.
To drive home the point, (but without meaning to be particular) a few days ago, the Supreme Court held that the former Senate President, Adolphus Wabara and one Fabian Osuji have a case to answer and referred the case back to the court of first instance for the case to begin afresh. Recall that this case was instituted in 2005 (eight years ago) and trial is just about to begin! Many of us have even forgotten all about that case.
Surely, this situation does not augur well for both the accused and the prosecution because even the accused person has a right to have his fate decided as quickly as possible.
THE PRESENT STATE OF THE LAW
In drafting the Economic and Financial Crimes Commission Act, the National Assembly anticipated the possibility of this syndrome and proactively inserted a section in the Act to curtail it. Section 40 of the Act provides;
“Subject to the provision of the constitution of the Federal Republic of Nigeria 1999, an application for stay of proceedings in respect of any criminal matter brought by the commission before the High Court shall not be entertained until judgment is delivered by the High Court”.
Similarly Section 273 of the Administration of Criminal Justice Law of Lagos State, 2011, took a clue from the EFCC Act and provides as follows:
“Subject to the Provisions of the Constitution of the Federal Republic of Nigeria, an application for stay of proceedings in respect of any criminal matter brought before the High and Magistrates’ court shall not be entertained until judgment is delivered.”
However, all other Criminal Procedure Codes or Acts of other States have no such provision.
One interesting aspect of these provisions quoted above is the fact that they are made “subject to the provisions of the Constitution”. As a result many Courts still consider and grant applications for stay of proceedings because the defence lawyers have always argued that since the sections are made “subject to the constitution”, they cannot override the constitution which gives the accused person a right of appeal. Essentially sections 233, 240, 241, 243, 244, 245, 246 of the Constitution deal with the right of appeal.
They always argue that the right of appeal, includes the right to stay proceedings pending that appeal. And it is a well known fact that any provision of any law that is inconsistent with the provisions of the Constitution will be null and void to the extent of the inconsistency. Section 1 (3) of the Constitution provides:
“If any other law is inconsistent, the constitution shall prevail and that other law shall to the extent of the inconsistency be void”.
Whether this argument is right or not, it has always been an escape route for most judges to stay proceedings and wash their hands off the cases. And then the game of delay begins.
WHAT SHOULD BE DONE
It is very clear, therefore, that what needs to be done is to give constitutional flavour to a provision like section 40 of the EFCC Act quoted above which prohibits stay of proceedings in criminal matters. Once such a provision is supreme, no other law can defeat it.
It is, therefore, my proposal that the Constitution be amended to include a provision like section 40 of the EFCC Act. This section should be inserted after section 248 and should read thus:
“1. Notwithstanding anything contained in this Constitution, including Chapter IV of this Constitution, any person who exercises any right of appeal under this Constitution in criminal matters shall not be entitled to a stay of proceedings pending the determination of the appeal.”
Some people may query the rationale for inserting procedural issues in the constitution. However, it is equally a matter of fact that the constitution contains both substantive and adjudicatory (procedural) provisions. Take for instance, the detailed provisions of the constitution in sections 241 and 242 regarding appeals with leave and without leave. Therefore, there is nothing extraordinary in inserting a provision like the above in the Constitution.
PROTECTION FOR THE ACCUSED
Essentially, this is intended to look at the right of the accused to fair hearing, including hearing of his appeal. The question is, what if the accused has a good reason to appeal at an interlocutory stage? And what happens to the accused person if his interlocutory appeal is still pending when the trial court concludes his trial and he is found guilty? Would he spend many years in jail before, in some cases, the Supreme Court would rule that he ought not to have been tried in the first place for one reason or the other?
The solution to this is two-fold:
(1) There is abundance of case law relating to bail pending appeal in criminal cases. As a result, the accused person may take advantage of this and apply for bail pending his appeal. Therefore, the National Assembly need not worry about this.
(2) Secondly, the National Assembly may decide to intervene by introducing the principle of suspended sentencing in the constitution. Here the sentencing of the accused, after he is found guilty and convicted may be suspended pending the outcome of any interlocutory appeal. If the appeal succeeds, the Charge is quashed but if it fails, the trial court or the Appellate Court may then go on to pronounce the sentence. By so doing, criminal justice is guaranteed.
If the National Assembly decides to introduce suspended sentencing, then a proviso should be inserted after the suggested section above prohibiting stay of proceedings to read thus:
“1. Provided that the court shall have powers to suspend imposing a sentence on any person found guilty and convicted while a valid Interlocutory Appeal is pending at any of the Appellate Courts established by this Constitution until the determination of the Appeal.
2. In any case where the interlocutory appeal by the accused person fails, the Appellate Court in question may impose the sentence.
It is also suggested that to drive home the seriousness of the National Assembly to clear backlog of such cases pending in our courts and to speed up the trials the following provisions should also be inserted:
3. Notwithstanding anything contained in this Constitution, including Chapter IV of this Constitution any such Criminal Case that had been stayed before the coming into effect of this section shall abate.
4. All criminal trials are deemed adjourned from day to day except the Court otherwise directs.”
ADVANTAGES OF THESE PROVISIONS IN THE CONSTITUTION:
If these amendments are inserted in our constitution, the advantages would be numerous. Some of the advantages would be:
(a) The controversies surrounding plea bargaining would be over. Prosecutors are often forced to go into plea bargaining because of the frightening prospect of delayed trials that may take several years to conclude as a result of interlocutory appeals and stay of proceedings.
(b) It is the most cost-effective way to tackle delay in criminal trials for now. Setting up special courts and procuring recording devices for all courts would cost the government a fortune for now and they cannot take care of the problem of stay of proceedings.
(c) It puts the prosecution and the defence on their toes. The prosecution and the defence would be anxious to prosecute their appeals. Appeals shall no longer be a tool for delaying cases. On the part of the prosecutor, he would be anxious to see a convict fully serve his sentence, and as such, would want the Appeal determined expeditiously, whilst the Accused, with a clog of conviction on his neck would anxiously prosecute the Appeal to ensure that his conviction is set aside.
(d) We will no longer be assailed with the present eye-sore of those accused of crimes contesting for and occupying public offices under the pretext that they have not been found guilty and remaining in such offices throughout the length of their trials.
CONCLUSION
EXCEPT we can summon the political courage to amend the Constitution to reflect these suggested provisions, the much desired reforms in the administration of criminal justice and fight against corruption would remain elusive.
As mentioned earlier, the National Assembly had earlier recognized this fact and made provisions in the EFCC Act to forestall stay of proceedings, but its effort has been frustrated by the superiority of the provisions of the Constitution over that Act. The National Assembly should therefore show its patriotism and sincerity by inserting the suggested provisions in the Constitution and deal a final blow on this menace of delay in the administration of criminal justice.
Thank you.
FESTUS KEYAMO, ESQ.,
Private Legal Practitioner and
Prosecuting Counsel for EFCC
The lawyer said the proposal became necessary because the “delays in the administration of criminal justice in Nigeria, especially corruption-related cases, have become a notorious fact.”
Mr. Keyamo is proposing that the National Assembly inserts a clause in the Constitution which is similar to section 40 of the EFCC Act which states: “Subject to the provision of the Constitution of the Federal Republic of Nigeria 1999, an application for stay of proceedings in respect of any criminal matter brought by the Commission before the High Court shall not be entertained until judgment is delivered by the High Court.”
He urged the National Assembly to insert this clause after section 248 and should read thus:
“1. Notwithstanding anything contained in this Constitution, including Chapter IV of this Constitution, any person who exercises any right of appeal under this Constitution in criminal matters shall not be entitled to a stay of proceedings pending the determination of the appeal.”
See the complete proposal that Mr. Kayemo sent to the National Assembly below:
PROPOSAL FOR CONSTITUTIONAL AMENDMENT TO ADDRESS THE DELAY IN CRIMINAL TRIALS IN NIGERIA
SUBMITTED BY:
FESTUS KEYAMO, ESQ
TO:
NATIONAL ASSEMBLY, FEDERAL REPUBLIC OF NIGERIA
INTRODUCTIONThe delays in the administration of criminal justice in Nigeria, especially corruption-related cases, have become a notorious fact. Well-meaning Nigerians have consistently raised alarm about this issue. And it is a well-known fact that justice delayed is justice denied. Justice is denied to the generality of the people of Nigeria when those who are alleged to have committed heinous crimes against the State make nonsense of the law and delay their trials by clever tricks and continue to walk the streets and work their way into public offices to perpetrate more crimes whilst their criminal cases are pending in different courts. At the end of the day, the cases are lost because of the death of witnesses, loss of memory by witnesses, loss of exhibits, loss of interest and zeal by prosecutors and the aggrieved by effluxion of time, the compromise of witnesses by the accused, e.t.c.
Various suggestions have been proffered in the past to address this issue, but none has resolved the problem of delay.
Having prosecuted and defended various high profile criminal cases in various courts in Nigeria, I find myself in a vantage position to humbly proffer the following suggestions that would resolve, once and for all, the problem of delay in criminal trials in Nigeria.
PREVAILING CIRCUMSTANCES
In all criminal trials in Nigeria, especially the corruption-related cases, no matter how good the case of the prosecution is, the accused persons, through their lawyers, have now devised a common scheme or strategy to delay the trials and invariably thwart the whole legal process; they simply raise all manners of PRELIMINARY OBJECTIONS to either the Charge, or the proof of evidence, or the appearance of counsel or relating to jurisdiction of the court. They may also wait for the prosecution to lead evidence and then make a no-case submission.
Once they are overruled, (which happens in most cases as most of the Courts find those applications or submissions frivolous) the Accused persons immediately file interlocutory appeals to higher courts and would always request the lower courts to stay trials pending the appeals. Once the trials are stayed by the lower courts, the appeals take a number of years to get to the Supreme Court before they are referred back to the courts of first instance to begin the proper trial. And take note that there is nothing stopping the defence lawyers from raising another fresh preliminary issue again that they may warrant them going on appeal again and asking for a stay of proceedings again. And this kind of game can go on and on.
To drive home the point, (but without meaning to be particular) a few days ago, the Supreme Court held that the former Senate President, Adolphus Wabara and one Fabian Osuji have a case to answer and referred the case back to the court of first instance for the case to begin afresh. Recall that this case was instituted in 2005 (eight years ago) and trial is just about to begin! Many of us have even forgotten all about that case.
Surely, this situation does not augur well for both the accused and the prosecution because even the accused person has a right to have his fate decided as quickly as possible.
THE PRESENT STATE OF THE LAW
In drafting the Economic and Financial Crimes Commission Act, the National Assembly anticipated the possibility of this syndrome and proactively inserted a section in the Act to curtail it. Section 40 of the Act provides;
“Subject to the provision of the constitution of the Federal Republic of Nigeria 1999, an application for stay of proceedings in respect of any criminal matter brought by the commission before the High Court shall not be entertained until judgment is delivered by the High Court”.
Similarly Section 273 of the Administration of Criminal Justice Law of Lagos State, 2011, took a clue from the EFCC Act and provides as follows:
“Subject to the Provisions of the Constitution of the Federal Republic of Nigeria, an application for stay of proceedings in respect of any criminal matter brought before the High and Magistrates’ court shall not be entertained until judgment is delivered.”
However, all other Criminal Procedure Codes or Acts of other States have no such provision.
One interesting aspect of these provisions quoted above is the fact that they are made “subject to the provisions of the Constitution”. As a result many Courts still consider and grant applications for stay of proceedings because the defence lawyers have always argued that since the sections are made “subject to the constitution”, they cannot override the constitution which gives the accused person a right of appeal. Essentially sections 233, 240, 241, 243, 244, 245, 246 of the Constitution deal with the right of appeal.
They always argue that the right of appeal, includes the right to stay proceedings pending that appeal. And it is a well known fact that any provision of any law that is inconsistent with the provisions of the Constitution will be null and void to the extent of the inconsistency. Section 1 (3) of the Constitution provides:
“If any other law is inconsistent, the constitution shall prevail and that other law shall to the extent of the inconsistency be void”.
Whether this argument is right or not, it has always been an escape route for most judges to stay proceedings and wash their hands off the cases. And then the game of delay begins.
WHAT SHOULD BE DONE
It is very clear, therefore, that what needs to be done is to give constitutional flavour to a provision like section 40 of the EFCC Act quoted above which prohibits stay of proceedings in criminal matters. Once such a provision is supreme, no other law can defeat it.
It is, therefore, my proposal that the Constitution be amended to include a provision like section 40 of the EFCC Act. This section should be inserted after section 248 and should read thus:
“1. Notwithstanding anything contained in this Constitution, including Chapter IV of this Constitution, any person who exercises any right of appeal under this Constitution in criminal matters shall not be entitled to a stay of proceedings pending the determination of the appeal.”
Some people may query the rationale for inserting procedural issues in the constitution. However, it is equally a matter of fact that the constitution contains both substantive and adjudicatory (procedural) provisions. Take for instance, the detailed provisions of the constitution in sections 241 and 242 regarding appeals with leave and without leave. Therefore, there is nothing extraordinary in inserting a provision like the above in the Constitution.
PROTECTION FOR THE ACCUSED
Essentially, this is intended to look at the right of the accused to fair hearing, including hearing of his appeal. The question is, what if the accused has a good reason to appeal at an interlocutory stage? And what happens to the accused person if his interlocutory appeal is still pending when the trial court concludes his trial and he is found guilty? Would he spend many years in jail before, in some cases, the Supreme Court would rule that he ought not to have been tried in the first place for one reason or the other?
The solution to this is two-fold:
(1) There is abundance of case law relating to bail pending appeal in criminal cases. As a result, the accused person may take advantage of this and apply for bail pending his appeal. Therefore, the National Assembly need not worry about this.
(2) Secondly, the National Assembly may decide to intervene by introducing the principle of suspended sentencing in the constitution. Here the sentencing of the accused, after he is found guilty and convicted may be suspended pending the outcome of any interlocutory appeal. If the appeal succeeds, the Charge is quashed but if it fails, the trial court or the Appellate Court may then go on to pronounce the sentence. By so doing, criminal justice is guaranteed.
If the National Assembly decides to introduce suspended sentencing, then a proviso should be inserted after the suggested section above prohibiting stay of proceedings to read thus:
“1. Provided that the court shall have powers to suspend imposing a sentence on any person found guilty and convicted while a valid Interlocutory Appeal is pending at any of the Appellate Courts established by this Constitution until the determination of the Appeal.
2. In any case where the interlocutory appeal by the accused person fails, the Appellate Court in question may impose the sentence.
It is also suggested that to drive home the seriousness of the National Assembly to clear backlog of such cases pending in our courts and to speed up the trials the following provisions should also be inserted:
3. Notwithstanding anything contained in this Constitution, including Chapter IV of this Constitution any such Criminal Case that had been stayed before the coming into effect of this section shall abate.
4. All criminal trials are deemed adjourned from day to day except the Court otherwise directs.”
ADVANTAGES OF THESE PROVISIONS IN THE CONSTITUTION:
If these amendments are inserted in our constitution, the advantages would be numerous. Some of the advantages would be:
(a) The controversies surrounding plea bargaining would be over. Prosecutors are often forced to go into plea bargaining because of the frightening prospect of delayed trials that may take several years to conclude as a result of interlocutory appeals and stay of proceedings.
(b) It is the most cost-effective way to tackle delay in criminal trials for now. Setting up special courts and procuring recording devices for all courts would cost the government a fortune for now and they cannot take care of the problem of stay of proceedings.
(c) It puts the prosecution and the defence on their toes. The prosecution and the defence would be anxious to prosecute their appeals. Appeals shall no longer be a tool for delaying cases. On the part of the prosecutor, he would be anxious to see a convict fully serve his sentence, and as such, would want the Appeal determined expeditiously, whilst the Accused, with a clog of conviction on his neck would anxiously prosecute the Appeal to ensure that his conviction is set aside.
(d) We will no longer be assailed with the present eye-sore of those accused of crimes contesting for and occupying public offices under the pretext that they have not been found guilty and remaining in such offices throughout the length of their trials.
CONCLUSION
EXCEPT we can summon the political courage to amend the Constitution to reflect these suggested provisions, the much desired reforms in the administration of criminal justice and fight against corruption would remain elusive.
As mentioned earlier, the National Assembly had earlier recognized this fact and made provisions in the EFCC Act to forestall stay of proceedings, but its effort has been frustrated by the superiority of the provisions of the Constitution over that Act. The National Assembly should therefore show its patriotism and sincerity by inserting the suggested provisions in the Constitution and deal a final blow on this menace of delay in the administration of criminal justice.
Thank you.
FESTUS KEYAMO, ESQ.,
Private Legal Practitioner and
Prosecuting Counsel for EFCC
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