Justice for the rich (1)
In Nigeria, the law applies differently to the rich and the poor. The noble idea of equality before the law is hardly a reality. From the pre-trial state to judgment, everything works against the poor. JOSEPH JIBUEZE examines how Nigeria’s criminal justice system favours the rich and the migthy to the detriment of the poor.
Nigeria’s criminal justice system is full of contradictions. It is as if the law applies differently to the rich and the poor contrary to the principle of equality before the law. If strictly applied, all citizens, no matter how highly placed, are subject to the same laws of justice.
The 1999 Constitution recognises the supremacy of the law. Section 1 (1) says: “This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.”
However, due to a corrupt criminal justice system, a citizen who has no money to ‘buy’ justice, or not well-connected, may suffer behind bars for crimes he may not have committed. The rich would commit the same offence and walk the streets free.
This state of affairs cuts across the entire system of law enforcement that is directly involved in apprehending, prosecuting, defending, sentencing and punishing those who are suspected of or convicted of criminal offences.
The poor and pre-trial stage
What has been termed “the Nigerian factor”, a euphemism for corruption, ensures that nothing is done right. This seems to have become the accepted norm in contemporary Nigeria where those with money, power and connections get what they want. The “Nigerian factor” is seen as a weapon through which justice can be manipulated to suit individuals.
The criminal justice system works against the poor from the point of arrest by security agencies. According to a university don and social scientist, Sunday Ogunode, the police are especially culpable for giving preferential treatment to the rich and powerful suspects.
When a complaint is lodged at a police station, the seriousness accorded the complaint depends on who the complainant is. If it involves a rich person, or a member of the elite, the swiftness with which investigators swing into action is usually different from the treatment given to a complaint by an indigent person. An ‘ordinary’ citizen may never be attended to.
Sometimes, whether a complaint is treated depends on the complainant’s ability to ‘mobilise’ the officers with money, or provide funds for fueling the patrol vehicle. Where a complainant is either so poor or unwilling to part with any reasonable sum of money, investigation may never be initiated.
Where an arrest is made, every suspect ought to be presumed innocent until proven guilty. It is for this reason that there is provision for bail, which ought to be free.
However, many, who are not able to afford certain amounts of money for bail are kept in unhealthy detention facilities at police stations. Only those who can afford to buy ‘bail’ are allowed to go home. This is in violation of Section 35 (4) of the 1999 Constitution which states: “Any person who is arrested or detained…shall be brought before a court of law within a reasonable time.”
Section 35 (4) (a) provides that a person who commits a capital offence and therefore not entitled to bail, must not remain in custody for more than two months, and must be released unconditionally if not charged to court.
For non-capital offences, Section 5 (a) provides that a person must not be detained for more than 24 hours where there is a court of competent jurisdiction within a radius of 40 kilometers. However, these provisions, in most cases, are observed in the breach.
In some police stations, bail ranges from N2,000 to N10,000 or more, depending on the gravity of the alleged offence and the willingness of the suspect or his relations to pay.
A former student unionist and executive director of a non-governmental organisation, African Network on Environment and Economic Justice (ANEEJ), Revd David Ugolor, was detained in connection with the murder of former Edo Governor Adams Aliyu Oshiomhole’s Principal Private Secretary, the late Comrade Olaitan Oyerinde.
In detention, he had a raw experience of what the poor go through in the hands of law enforcers. Ugolor was fortunate to be charged to court because he could afford a lawyer. He was eventually acquitted.
He said: “It is almost impossible to get justice in Nigeria. I am saying this because after the court acquitted and discharged me, after the Ministry of Justice found me not involved and even after the court awarded me cost, the police, in their usual tradition of not admitting their errors insisted on proceeding with their allegation.
“You can imagine a poor tax payer in Nigeria fighting the police, an institution, with all their resources and budget, with which they can afford to delay the wheel of justice. The High Court awarded me the cost of N5 million for my illegal detention. The police went to the Appeal Court. The Appeal Court ruled unanimously that they should deposit the N5 million first. Now, they have gone to the Supreme Court.
“Today in Nigeria, almost 60-70 per cent of Nigerians live below one dollar a day. You can imagine what it means if it was a poor Nigerian who has no means of support that found himself in my situation. How could he have survived? What it means is that about 60-70 per cent of Nigerians that are not in my position would not be able to demand justice. This means justice is for sale in the country.
“In reality, it is only a few, less than one per cent of Nigerians that could actually secure justice. Otherwise, where do you think a poor man would get the money to go to the extent of the Supreme Court, all because of illegal detention cost of N5 million that has just been awarded?
“This is not good for Nigeria. Importantly too, it means that with the way the Nigerian justice system is structured, over 60-70 per cent of Nigerians do not have access to justice. Compare their situation to that of the politicians—the rich politicians, the rich civil servants and others, who can pursue justice because they can contract the services of Senior Advocates of Nigeria (SANs). That, for instance, is why the police can afford to trample on the rights of common citizens and go scot-free.”
There are also situations where a complainant becomes the suspect. This happens where the suspect is wealthier than the complainant and is able to buy the police over. The pretrial process, it appears, works mainly against the poor.
Flawed trial process
The trial process seems to work against the poor. Once a rich person is charged to court, they hire ‘smart’ lawyers who instantly file “preliminary objections” to challenge the charge. In several instances, when a court dismisses such objections, an appeal follows.
A former Lagos Branch chairman of the Nigerian Bar Association (NBA), Mr Alex Muoka, said: “The criminal justice system appears to favour the rich. It is wealthy criminal defendants who can afford the hefty fees of brilliant defence attorneys or exploit loopholes in the law and get their clients off the hook, or at least secure for them lighter sentences or negotiate plea bargains. Not much can be done to change that.”
Prior to the enactment of the Administration of Criminal Justice Act (ACJA) of 2015, proceedings were stayed in several high profile cases which were on interlocutory appeals.
Despite the ACJA, lawyers handling high profile cases still manipulate the law to stall cases, applying dilatory tactics, sometimes aides by the inadequacies of prosecuting agencies.
Some judges also tend to indulge the senior lawyers who represent the rich. They grant long and frivolous adjournments that they would otherwise refuse where the defendant is of low class.
A judge of a court in Lagos was overheard by her support staff, saying: “Let them go and eat watery beans in prison”. She was referring to poor suspects whom she had refused bail for bailable offences.
Sentencing that
favour the rich
There have been several rulings on corruption cases that have drawn criticisms for favouring the rich and the migthy who got what appeared to be light penalties for serious offences.
For instance, the Economic and Financial Crimes Commission (EFCC) accused a former Caretaker Chairman of the Ogori/Mangogo Local Government Area of Kogi State, Gabriel Daudu, of laundering N1.4 billion.
He was accused of conniving with a former Commissioner for Agriculture, Albert Adesina, to launder the money between January and July 2008.
After six years of trial during which the EFCC called 13 witnesses, Justice Inyang Ekwo, delivered judgment on April 25.
He discharged and acquitted Adesina but convicted Daudu on 77 out of the 208 counts having found him guilty of laundering N98 million.
What came as a shock to many was that the judge sentenced Daudu to two years imprisonment on each of the 77 counts, which would run concurrently, meaning he would spend less than two years in jail.
Another verdict which caused uproar was that by Justice Abubakar Liman of the Federal High Court in Benin in the case of Michael Igbinedion, the younger brother of former Edo State Governor Lucky Igbinedion. The younger Igbinedion allegedly laundered N25 billion.
At the end of the trial that lasted four years, Justice Liman found Michael guilty on counts 79, 80 and 81 of the 81 counts and sentenced him two years imprisonment on each count, with an option of N1 million fine for each. The young Igbinedion reportedly paid.
Meanwhile, a former aide of Governor Igbinedion, Patrick Eboigbodin, who was charged along with Michael, was found guilty on 10 counts and was sentenced to 20 years.
The judgment was widely criticised. A commentator said: “How do you deter corruption by setting a fine of only N3 million for a graft involving N25 billion? And why does the assistant bag a jail term of 20 years without the option of not serving a jail term as was offered the principal offender?”
There was also the case of 14 foreigners, who the EFCC accused of illegally dealing in 1,738.087 metric tons of petroleum products. The 14 foreigners, from Russia, Ukraine, Philippine and Japan, were sentenced to two years imprisonment with effect from last March 27 when they were arrested by the Nigerian Navy.
Justice Ibrahim Buba of the Federal High Court shocked many when he also gave them an option of N5 million fine for people who allegedly stole Nigeria’s crude oil.
There was a sharp contradiction when seven Nigerians were charged of similar offences before Justice Okon Abang of the same court.
They were convicted for dealing unlawfully in 1,459 metric tonnes of petrol. They were sentenced to 10 years imprisonment without an option of fine. Critics wondered why “richer” foreigners got lesser terms of imprisonment than their Nigerian counterparts.
There are also other cases of unfair verdicts. Justice Rita Ofili-Ajumogobia of the Federal High Court sentenced a 32-year-old man, Lawrence Alaugu, who was caught with 200 grammes of Indian hemp, to life imprisonment.
Alaugu was a caught selling Indian Hemp under a bridge in Lagos. Those close to him said poverty drove him into selling the substance. Judges hardly imposed such maximum sentences for even more serious offences.
Faulting the verdict, Executive Director of Nigeria’s judicial watchdog and rights group, the Access to Justice (AJ), Joseph Otteh, described it a miscarriage of justice.
He said: “The judiciary disproportionately makes the poor people more victims of crime than people of means, while the judiciary allows ostentatious plea bargains for the rich and they are let off with just a slap on the wrist.”
Alaugu’s life sentence stands in sharp contrast to the sentence handed three Bolivians who were convicted for producing and selling banned and dangerous substances – Ephedrine and Methamphetamine.
On December 6, they were sentenced to six years imprisonment. Justice Oluremi Oguntoyibo of the Federal High Court in Lagos convicted them after they were found guilty of the crime.
The National Drug Law Enforcement Agency (NDLEA) charged the convicts – Reuben Jorge, Yhugo Moreno and Yerko Dorado – on two counts illicit drug dealing.
The convicts were allegedly housed by their Nigerian accomplices between November 2011 and February 2012 from where they were producing the dangerous drugs before their arrest. The offence violated Section 22 (a) of the NDLEA Act and attracts life imprisonment or a minimum of 25 years. But they got only six years.
History of ‘spurious’ verdicts
Many could still remember two judgments in 2013 delivered within a week which buttressed the point that justice is for the rich.
An Abeokuta Magistrate’s Court sentenced 49-year-old Mustapha Adesina to two years in prison for stealing vegetables valued at N5, 000. He was reportedly given an option of N10, 000, which is twice the value of what he stole. Reports said Adesina could not pay the fine. He was jailed.
A few days later, a former director of the Police Pension Board, Yakubu Yusuf, who admitted stealing N32.8 billion, was also sentenced to two years imprisonment, but with an option of N750, 000 fine.
The judgment generated outcry and condemnation, resulting in Justice Abubakar Talba of the FCT High Court, who adjudicated the case being suspended for one year.
Former Edo State Governor Lucky Igbinedion was found guilty of stealing N9 billion. He was fined N3 million after a “plea bargain” with the prosecution and he never spent a day in prison.
Former Oceanic Bank Managing Director Mrs Cecilia Ibru, who was accused of stealing over N190 billion, also entered a plea bargain with the prosecution. She was sentenced on October 8, 2010 after being convicted on 25 counts of fraud and ordered to refund N1.29 billion.
Ibru was found to have extended credit facilities of N16 billion to a company without collateral. After her conviction, she served six months in prison, part of which she allegedly spent in a highbrow hospital.
Former Inspector-General of Police (IGP) Tafa Balogun and the late Bayelsa State Governor Dieprieye Alamiesigha are examples of other high profile individuals who were convicted but never served jail terms.
Ogunode believes plea bargain is hardly contemplated for the low class. He said: “The whole purport of plea bargain is to serve the interest of justice as swiftly as possible; however, it has been hijacked to serve the interest of the rich while the poor, who constitute the largest percentage of the population languish in our over-congested prisons.”
According to the scholar, it was unjust that “the big thief receives a light sentence, while the common petty thieves receive the full weight of the law. It is not fair to the poor and the less-privileged of the society.”
Laws that favour the rich
Some legal experts have faulted the provision of financial penalties in some laws.
For instance, Section 15(b) of the Money Laundering (Prohibition) Act 2004 stipulates as punishment “a fine of not less than N250, 000 or more than N1 million, or a term of imprisonment of not less than two years or to both fine and imprisonment.”
To observers, impliedly, those engaging in money laundering could simply pay the fines and walk away and petty thieves charged under the stricter sections of the Criminal Code rot in jails.
Post-conviction
bail for the rich
In some instances, where the rich have successfully been convicted of crime and sentenced to prison terms, they still manage to get themselves out of prison. This privilege is never extended to the poor.
For instance, Justice Rita Ofili-Ajumogobia, on June 6, granted a post-conviction bail to former Nigerian Maritime Administration and Safety Agency (NIMASA) Director-General Raymond Temisan Omatseye, who was sentenced to five years imprisonment on May 20.
Omatseye was convicted over a contract scam involving about N1.5 billion. The EFCC accused him of bid rigging and award of contract above his threshold.
Omatseye, who appealed his sentence, applied for post-conviction bail through his lawyer Olusina Sofola (SAN). He sought to stay out of prison until his appeal was determined.
According to him, given the number of years it takes to prosecute appeals, it was likely that he could have finished serving the prison term by the time the appeal is determined.
Besides, Omatseye said he was a father of four children, one of whom was very ill and suffering from “severe medical conditions of epilepsy, atypical hypertrophic cardiomyopathy with mitral regurgitation, artrial fibrillation, enuresis, severe learning difficulties and development delays…”
He said his wife stayed full time in London with the sick child, and that in his wife’s absence, he had the responsibility of providing parental care to the remaining three children in Nigeria.
Granting the post-conviction bail application, Justice Ofili-Ajumogobia said it was for the “single consideration” of Omatseye being a parent with a sick child.
He granted him bail for N500,000 with two sureties in like sum. One of the sureties must be a civil servant no below grade level 16. The judge directed Omatseye to deposit his international passport with the court. It was learnt that the judge later reviewed the sum to N10 million following public condemnation of the verdict.
Those who faulted the post-conviction bail argue that had Omatseye not been a member of the elite but an ordinary citizen, he would certainly not have succeeded with his post-conviction application.
Another instance is the post-conviction bail granted a former beauty queen and actress Ibinabo Fiberesima.
Justice Deborah Oluwayemi of the Lagos State High Court, Igbosere, on February 20, 2009, sentenced Fiberesima to five years imprisonment for manslaughter. She was convicted for reckless driving which caused the death of a medical doctor, Mr. Suraj Giwa.
The case began at a Chief Magistrate’s Court which first convicted Fiberesima but granted her an option of N100, 000 fine. But the Lagos State government appealed to the High Court.
Delivering judgment in the appeal, Justice Oluwayemi held that the N100,000 fine imposed by the lower court on Fiberesima was tantamount to “judicial recklessness.”
According to the judge, it was unreasonable for a magistrate to give an option of N100, 000 fine to someone who had taken a life through dangerous driving under the influence of alcohol.
The judge added that Section 28 of the Road Traffic Law, Cap R10 Laws of Lagos State 2003 on which the convict was found guilty, did not give an option of fine.
Despite her criticism of the Magistrate’s Court’s verdict, Justice Olawayemi, on May 13, 2009, granted Fiberesima a post-conviction bail pending the determination of her appeal against the five-year jail sentence.
Critics said the post-conviction bail made nonsense of the five-year jail term imposed by the judge. In effect, Fiberesima pursued her appeal from the comfort of her home rather than from the prison.
On March 11, the Court of Appeal dismissed her appeal and upheld the five-year jail term. Fiberesima promptly appealed the verdict to the Supreme Court.
Again, she applied for a post-conviction bail. The Court of Appeal granted Fiberesima N2 million post-conviction bail.
Justice Samuel Oseji, who read the lead judgment, said he was inclined to exercise discretion in Fiberesima’s favour due to her health and because there was no record that she had jumped bail in the past.
But, a third member of the panel, Justice Y.B. Nimpar, dissented. He said the ground of ill-health upon which Fiberesima anchored her application for bail was untenable.
He noted there was no record before the court that Fiberesima suffered any complications since she underwent surgery for breast cancer in February. Besides, Justice Nimpar said there were adequate medical facilities in the prisons to cater to her health needs, adding that she could be referred to a hospital with better facilities outside the prison.
Following the Court of Appeal ruling granting Fiberesima another post-conviction bail, many Nigerians took to the social media to condemn the “injustice of it”.
A commentator said: “The reason there is rule of law is that people do not seek justice for themselves. Victims of crimes let the government seek justice on their behalf. The judiciary should realise that if they go against natural justice, it may result in situations where victims’ families resort to self-help.”
Another commentator, Olumide Soneye, said: “All animals are equal but…Of all the Nigerian prisoners, none of them has the same health issues like Fibreseima?”
Another reader, Kolawole Awosan said: “Such bail would be seen as unjust and unfair to the spirit and family members of the victim of her recklessness on the highway. She was supposed to pay for the crime.”
According to Ogunode, the criminal justice system reflects a pattern of bias: it deals ruthlessly with poor criminals even though the crime of the rich poses greater danger to the society.
“Our criminal justice system treats the poor as criminals and tends to overlook the more costly criminal and dangerous acts of the wealthy and powerful,” he said.
Ogunode, in an article in the journal: Humanities and Social Sciences review, compared the situation to the title of a book by Jeffrey H. Reiman: The Rich Get Richer and The Poor Get Prison.
‘Only the poor are paraded’
It is not uncommon to see the police parade criminals before camera for certain offences. Observers believe when children of the rich are involved in such crime, they are usually shielded.
Otteh said: “It is poor people who first face a public trial and condemnation before they are charged to court, when they are paraded in front of the media with various ‘recovered’ arms and ammunition placed in front of them. Those alleged to have plundered our national resources are not paraded prejudicially in front of anyone.”
When prisons
are full of the poor
The rich and powerful who committed serious offences walk free on the streets but the prisons are full of the poor, many of whom have been detained for years without trial.
According to the Prisoners’ Rights Advocacy Initiatives (PRAI), a non-governmental organisation fighting for the rights of prisoners, there are currently 7,364 inmates in Lagos prisons.
Relying on figures from prison authorities, PRAI said 5,991 of the inmates are awaiting trial. The convicts are 1,107; those on death row are 185, and those on life imprisonment are 81.
PRAI’s Director Ahmed Adetola-Kazeem said many of the awaiting trial inmates have spent at least two years or more. Several of them, he said, are either poor and therefore cannot “buy” their freedom, or have no one to help “facilitate” their release from incarceration.
“I can say almost categorically that very many of them have spent over four years awaiting trial or experiencing delayed trial sometimes for minor offences,” he said.
PRAI secure the release of Tairu Mohammed, who was freed after seven years in detention without trial. The group filed a Habeas Corpus application against the police and the Lagos State Attorney-General at the High Court in Ikeja. PRAI sought an order for Mohammed’s release.
The suspect was arrested on allegation of armed robbery. The Directorate of Public Prosecution (DPP), after scrutinising the evidence, was of the opinion that Mohammed should be tried for receiving stolen property, which had a penalty of six months imprisonment.
Either due to negligence or Mohammed’s inability to defend his rights or hire a lawyer, he remained in prison custody since 2009 despite a favourable legal advice. The advice was sent to the police in 2009, but nothing was done until PRAI filed the suit. On December 17, Justice Lateefat Okunnu ordered Mohammed’s release.
Adetola-Kazeem thinks Mohammed’s case was just an example of how the criminal justice system works against the poor and less-privileged.
He said: “It is true that the criminal justice system favours the rich and the statistics are there for everyone to see. Many influential persons who have fleeced the nation of billions of dollars walk freely today, some occupying political offices.
“In the case of the poor, a number of them have been in the prison for offences they know nothing about or are serving long prison terms for committing minor offences.
“In 2013 the Lagos State Environmental and Special Offences court sentenced about 160 people among whom were underaged persons to 390 days imprisonment for obstruction of peace without the opportunity to be represented by counsel or a clear understanding of what transpired in court. They alleged they were coerced to plead guilty.
“Whereas, many rich people who confess to stealing billions of dollars are giving a pat on the back or handed ridiculous sentences after entering into ‘dubious’ plea bargaining agreement with the prosecuting agencies. An example is Mrs Ibru, who was sentenced to six months imprisonment for stealing billions of naira. More ridiculous is that she spent the sentence in a hospital.
“Despite confessing to stealing billions, there have been deafening silence on the status of the trial of some politically exposed persons who have returned a little fraction of what was stolen. This privilege is not always open to the underprivileged.”
In 2014, a committee set up by the Interior Minister reported that Nigerian Prisons were congested because they housed more than a triple of the number of inmates specified. The committee concluded that Nigerian prisons were unfit for human habitation as most detainees were usually ill because they were kept under inhuman conditions, shackled and manacled like condemned dangerous criminals!
These awaiting-trial detainees are the poor masses, as no rich man or woman ever waited for any trial.
When justice is “bought”
No fewer than three servicing judges are on trial for corruption. The judges were accused of possessing multi-million naira worth of assets. Some allegedly adopted unconventional methods, such as accepting Value Cards and PIN numbers from criminal litigants, who approached them for favourable rulings in order to beat the various anti-corruption agencies.
A former Court of Appeal President Justice Ayo Salami, speaking at the 10th Gani Fawehinmi annual lecture in Lagos, said: “Another major point the problem with the judiciary will remain unresolved or even compounded for a long time is that Nigerians do not naturally want the truth to be told. Whoever dares to tell the truth is marked for destruction,” Salami said at the event organised by the Ikeja chapter of the NBA.
“You members of the Bar often tell sordid stories or tales of certain high ranking serving or retired judicial officers who act as ‘arrangees’ or couriers of bribe. That is, such are engaged at a fee to reach out to judges to influence or ‘purchase’ justice in certain sensitive cases.”
The Department of State Services (DSS) said it recovered over N270 million from the houses of the judges it raided in a sting operation on October 7 and in the early hours of October 8.
Those arrested in the wake of the raid were Justices Sylvester Ngwuta and Inyang Okoro both of the Supreme Court , the suspended Presiding Justice of the Court of Appeal, Ilorin Division, Justice Mohammed Ladan Tsamiya, Justice Kabiru Auta of Kano State High Court and Justice Adeniyi Ademola of the Federal High Court, Abuja.
A senior officer of the security agency, Mr. Abdullahi Garba, said: “The DSS action is in line with its core mandate, as we have been monitoring the expensive and luxurious lifestyle of some of the judges, as well as complaints from the concerned public over judgments obtained fraudulently and on the basis of money paid.”
The summary of monies recovered from some of the justices are as follows: Justice Ademola – N54 million, $171, 779.00, £80.00, 1,010.00 rupees, and €4,400.00; Justice Ngwuta – N35, 208,000, $319,475, £25,890, €280 , 380 UAE, 420 Gambia Dalais, four Argentine Notes, and 20 Ghana Cedis; Justice Okoro: N4, 350,000, $38, 833, £25,890, and €1,000.00.
They include: $530,087, £25,970, €5,680, N93, 558, 000.00, 1,000 rupees, 380 UAE, 430 Gambia Dallalis, four Argentine notes and 20 Ghana Cedis.
Some of the judges have been arraigned. They pleaded not guilty to the charges.