Sagay’s gobbledygook By Sufuyan Ojeifo

I read the news report credited to the Chairman, Presidential Advisory Committee against Corruption, Professor Itse Sagay (SAN), wherein he called for stiff punishment for counsels, particularly senior advocates, who have, in his opinion, routinely obstructed and frustrated proceedings in high-profile corruption cases in the country.

The professor of law reportedly made the call at a media roundtable, organised by the Socio-Economic Rights and Accountability Projects (SERAP), last week in Lagos, which essential theme was: “Strategies and Approaches for the Successful Completion and Effective Prosecution of Abandoned and Unresolved High-Profile Cases of Corruption: Combating Grand Corruption and Impunity in Nigeria.”

Although, Sagay proffered quite a number of recommendations in a paper he sent to the gathering, the one that caught my attention was that such senior lawyers should be denied right of appearance in such high-profile and grand corruption cases.

The recommendation is a piece of gobbledygook, which all Nigerians must scorn. I am shocked on account of Sagay’s mind-boggling thesis; and, I am sure many Nigerians, more especially his colleagues – learned silks and junior lawyers – are. They must be very dismayed by the beyond-the-pale attack on them by one of their own, who is an advisor to the federal government on the anti-corruption war.

How, on earth, will counsels be denied appearances in high-level corruption cases or in any cases, at all, for that matter, just because the prosecuting government agencies are finding it difficult to secure convictions? It is obvious that the defence counsels to the accused persons are doing damn good jobs for their clients, which is why Sagay is, probably, exasperated.

If Sagay’s advisories to the government are not working, that should not be enough reason for him to commit the profanity of seeking punishment for Senior Advocates of Nigeria (SANs) who defend those who are charged with corruption or money laundering offences. Is the learned professor, by any stretch of imagination, suggesting a situation where the accused persons should be arraigned in court without the benefit of defence counsels?

Has he forgotten that accused persons are innocent until proven guilty? The prosecuting counsels, the defence counsels and the judges should be allowed to do their jobs on the basis of available facts and body of evidence before the courts. If Sagay expects that the prosecuting agencies should win all corruption cases in court, then he is mistaken. That may not be possible, except where the prosecutions are able to prove their cases.

To do that, it is not going to be one-sided appearances in court; otherwise, such proceedings will, prima facie, violate the fundamental principle of audi alteram patem: hear the other side. In an ideal society, not Sagay’s idea of a “new Nigeria” under President Muhammadu Buhari, in which corruption must be relentlessly fought without the accused persons putting up a defence, such egregious abuse of the fundamental rights should amply benefit from the exercise of judicial review by the courts.

There is no doubt that Sagay taught law to a good number of these SANs at the University of Benin. What did he teach his students on the principle of “innocent until proven guilty”? I doubt if he taught them this strange theory and practice of legal monocracy when confronted with the situation that he is now dealing with in the practicality of the law. He must have grounded his prescription of the rule of law on the observance of due process and such fair hearing principles as audi alteram patem and nemo judex in causa sua: rule against bias.

I do not sympathise with Sagay nor do I identify with the anti-corruption fight in the manner that the learned professor and the Economic and Financial Crimes Commission (EFCC) are pursuing it. Media trial is different from judicial intercession. The EFCC and its advisor may have thrived in the use of the media to oppress, suppress, overwhelm and immolate their victims, but why are they pretending not to know that the judiciary does not act on the basis of media sentiments? The successful prosecution of corruption cases is not achieved by use of bully tactics, which largely crumble like a pack of cards in the face of the law. I expect that Sagay should advise the EFCC to learn from how the Department of Justice, USA, did a discreet investigation into oil swap deals involving some Nigerians before bringing such to the public?

The truth is that the anti-corruption fight in Nigeria is in a mess. The fight has since lost its integrity capital as a dispassionate and apolitical process, given the nature of its hesitant shape and texture in not covering the entire socio-economic and political field. If it had done so, many leaders of the ruling All Progressives Congress (APC) should, by now, be having their days in court. As a matter of fact, the administration would not have appointed them into the federal cabinet and other government positions in the first instance.

Now, the impression I get each time I examine this recent intervention by Sagay is that of wobbly, uncoordinated, poorly-investigated and ill-advised prosecutions of so-called grand corruption cases. Such wishy-washy prosecutions can only breed one definite result: failure to secure convictions in courts. Sagay’s prescription to solve the recurring mischief of lost cases is bizarre. If he were to have his way, those charged with grand corruption cases should be singing their Nunc-Dimittis because they will be perceived as guilty even before they are charged to court.

And, where they are entitled to defence counsels, Sagay would be comfortable with only junior and inexperienced lawyers handling their briefs so that they would easily be defeated in court and the EFCC, like a conquistador, would secure assets and money forfeitures to the federal government. Truth is, I support the idea of our stolen patrimony being recovered, but the strategy Sagay would wish to adopt can only work under Buhari’s 1983-85 military dictatorship, not under his current democratic government.

Sagay must be distraught that his wish cannot fly. Prosecution and defence counsels –senior and junior lawyers – will appear for parties in high-profile and other low-profile corruption cases. The courts will hear them out. The judges will painstakingly consider the merit of both the prosecuting and defence counsels’ written addresses and arguments.
If the EFCC wants to win high-profile corruption cases, Sagay should give the Commission the right pieces of advice. In case he has not been doing so, let me advise that the Commission should do proper investigations of cases, dispassionately ground cases against accused persons, argue the same with relevant authorities and prove the case(s) beyond reasonable doubt. If these are done, I am sure that justice will be served in accordance.

But if Sagay thinks that banal sentiments of an anti-corruption war that is being fought by the federal government, headed by an acclaimed anti-corruption tsar, will sway popular support for the EFCC and the government without the corresponding investment of due diligence in the Commission’s prosecutorial responsibility, then Sagay has got a big think coming.

Mr Ojeifo contributed this piece from Abuja via ojwonderngr@yahoo.com