Chief (Mrs.) Victoria Awomolo is one of the 20 female Senior Advocates of Nigeria (SAN) since inception of the title in 1975. She is also a Fellow of the Chartered Institute of Arbitrators, Nigeria. In this interview, she speaks on plea bargain, the anti-corruption bill and why arbitration is not fully embraced in Nigeria, among others.
Some senior lawyers recently suggested that government should consider adopting civil rather than criminal litigation of corruption cases so as to achieve more success. What is your reaction to this?
I will approach it this way. Where the charges are criminal in nature, suspected corrupt persons are given the opportunity to defend themselves under our law. However, the Administration of Criminal Justice Act (ACJA) has made provision for the concept of plea bargain that a defendant may offer to plea-bargain or the prosecutor may offer a plea bargain to the defendant. When this is done, the prosecutor may give the defendant a lesser charge and invariably a watered-down sentencing at the end of the trial. Advantage of this is that the state would have been able to get a substantial part of whatever must have been looted in the case of corruption. That will also shorten the length of the trial.
But if we go through the whole hog of trial and the defendant is convicted at the end, the victim can then charge him to court under civil litigation to recover whatever he thought the convict had taken from him. But you cannot say there is a crime committed and go through civil litigation where conviction has not been achieved, when the defendant has the right to defend himself. This will create more problems for the system. But plea bargain that has been provided for in Section 270 of ACJA is a very laudable provision that if we exploit in many of these criminal litigations we would be able to get a lot out of it.
If plea bargain is adopted in almost all criminal litigations, do you think this will serve as enough deterrence?
Plea bargain does not mean that the defendant will not serve any sentence. Even if you put somebody in jail for one day; that record, that indictment is there forever. It is only in this part of the world that we think that because someone was given three or six months imprisonment, that is not enough. It is enough shame to make someone a castaway forever. After conviction, even if the jail term is for two days, when such comes out, he is already an ex-convict.
For the state to be able to recover some of the looted funds and still secure conviction of the defendant, even if for a day, is enough.
The process of investigation that the prosecuting authorities have adopted in the last few years has not helped matters a lot. This is why some of these criminal cases are lost because investigations are not deep enough; the loopholes are not tightened and when trial begins the accused persons become wiser after so many adjournments. It doesn’t profit anyone (apart from the accused) when trial goes on forever and nothing is gotten out of it at the end. Tax payers’ money is being used to prosecute these cases.
In the news last week, the Senate passed President Buhari’s anti-corruption bill, though it is still pending in the House of Representatives; what do you think of this development vis-à-vis the anti-graft crusade?
This is a very laudable step by the Senate and I wish the House of Representatives will follow suit because we need adequate laws to deal with corruption issues in Nigeria. It is endemic. It has eaten too deeply into the system. And I remember the president said when he came on board that; ‘if we don’t kill corruption, corruption will kill us.’ So, as many laws for anti-corruption that we can get the better for our system: for example, the ACJA has broadened the pathway of prosecution and defence under the criminal justice.
If we have specific laws on specific acts of corruption, this will be good. In the United Kingdom, there are anti-corruption laws on almost every offence. Once any offence is committed, there is a law that deals directly with that offence. So, it is easier for them and once the ingredients are complete, they go to trial. That is why it is difficult for an accused person who really committed that offence to get out scot-free in the UK.
So our anti-corruption laws need to be updated, upgraded and we need as many as we can get so that this scourge can be taken off our system.
How well do you think the judiciary is playing its role in the anti-corruption war?
The judiciary is really up and doing and playing its role adequately. It seems that most Nigerians have been ‘brainwashed’ to think that once you take an accused person to court, whether he pleads guilty or not guilty, you just throw him into jail. But that is not how our system works. Under the constitution and other criminal justice laws, an accused person is entitled to defend himself and he is presumed innocent until prosecution proves him otherwise beyond reasonable doubt by presenting credible evidence.
In many of the jurisdictions, they now have certain judges that handle criminal cases; some handle corruption cases. So they are up to the task.
Recently, I heard in the news the number of convictions that the Economic and Financial Crimes Commission (EFCC) had gotten in the space of about two years and I was surprised and asked myself why they were castigating the courts. If they are getting these much convictions in so short a time, then the courts must be doing well. But even Mr. President was at one point misled to think the courts are not supportive of the anti-corruption drive.
On the convictions, some people have been commenting that it is always the little fish that are caught in the net while when the same net catches the bigger fish, they are given soft landing. Looking at the high-profile cases, only few have been successfully concluded, what do you make of this?
A lot of factors are involved: the prosecution, the defence lawyers, the courts and even the system and society. Where the prosecution did not do a thorough investigation, they may run into problems even quite early in the trial. Or where the defence lawyers begin to bring in different applications, but this have been curtailed by the ACJA. Even interlocutory applications have been curtailed by the Court of Appeal and the Supreme Court; ‘go back and finish the trial’ is now the rule.
I will not subscribe to that school of thought that only small fries are convicted while the bigger ones are let off the hook. What happen is that when cases get too long in courts, they become wiser.
Arbitration and Alternative Dispute Resolution (ADR) have long been given constitutional backing as a means of settling disputes, yet courts are still littered with cases they could have handled. What do you think is responsible for this?
It is our usual approach in Nigeria; we just want to go to court. It is even in the rules of court, once arbitration is provided for in an agreement, the courts will hands off and ask them to go for arbitration. But lawyers will get to arbitration and still want to argue as if they are in court and prolong issues. When any award is reached, we still want to go back to court to contest it. Whereas, arbitration is not practiced by lawyers alone, anyone with the requisite training can be an arbitrator, but lawyers will go there and be arguing back and forth and simple process that should be settled will now have to go to court. It seems our people like to go to court. Lawyers will still earn their fee if the matter goes to arbitration and it saves time and cuts down on animosity between parties. In Yoruba, they say no two people go to court and come back as friends. But arbitration is not like that, you can still do businesses together.
Even in some of our civil matters, the courts are now suggesting for settlements out of court. But you will now take a long adjournment and lawyers will not even call one meeting for the settlement and at the end of the day, they will go back to court to say ‘we could not settle, we are prepared to go on with the trial.’ So, at the end of the day, nothing is achieved.
Arbitration by its very nature is the shortest way to justice where parties can sit down in a relaxed atmosphere and discuss their issues with an arbitrator(s) who will midwife and settle after negotiation. That for me is a laudable process in our administration of justice system.