‘Lawyers mustn’t aid corruption’
Until last week, Charles Adeogun-Phillips represented the Federal Government in the trial of Supreme Court Justice Sylvester Ngwuta. His sudden withdrawal from the case has been subject of media speculations. But he declines to speak on the issue for the sake of client-counsel relationship. At 35 in March 2001, Adeogun-Phillips was appointed a senior trial attorney and lead counsel at the United Nations International Criminal Tribunal for Rwanda, leading teams of international lawyers in the prosecution of persons involved in the 1994 Rwandan genocide in which about 800,000 civilians were killed. In this interview with Senior Correspondent JOSEPH JIBUEZE, he speaks on the anti-corruption war, appointment of Chief Justice of Nigeria, judicial reforms, why there is low conviction in high profile cases, Southern Kaduna killings and genocide.
From your experience from multiple jurisdictions, could you highlight the areas of criminal justice administration that need urgent reform?
As stakeholders in the administration of justice system, I guess the first question we should ask ourselves is: who is best placed to superintend over the proper administration of a court? We need to employ proper court administrators who do not have to be lawyers, but who are experienced at running institutions. Essentially, we need to introduce a central case management system that runs across the courts. More importantly, there is a need to create more judges. In England & Wales, they have a system of hiring part-time judges from the Bar, who are called Recorders. This category of judges can be tasked to undertake a certain level of cases leaving full-time High Court judges to take control of the heavier caseload. That said, there is a need to improve the quality of judges. They should consider appointing some of them who have distinguished themselves in their careers in legal practice.
Cases that are set down for trial should be given realistic length of trial estimates and then all trials should run on consecutive days until the conclusion of the evidence. Timetables can then be set for closing addresses and the judgment of the court. I have often wondered why a judge would be required to read an entire judgment in court, instead of a summary of the said judgment following which certified copies of the said judgment could be distributed to the parties thereafter. An average judgment in a case before an international court is typically approximately 400 pages. I cannot imagine any judge in those courts having to read the entire text in a hearing; it is simply a waste of time and resources. The same should be done with interlocutory rulings.
In addition, I have always wondered why I, as a party in a case, have to apply for a copy of the judgment in my own case. Doesn’t that go without saying? I see no reason why that should be necessary. The fees for obtaining a certified copy of a judgment can be charged by the court upfront when the filing of the court processes occur and the judgment should be delivered in summary and copies given to the parties right there in the court. This would save valuable time.
What other observations have you?
Another major challenge I have in litigating cases in this jurisdiction is the inability of judges to observe the demeanour of witnesses who testify before them because they are busy recording the proceedings by hand. This is further compounded by the fact that there are no video recordings of court proceedings which the judges could refer to if necessary to observe the demeanour of the witnesses that appeared in the case. In that regard, courts should be equipped with court reporters and/or a transcription service to allow judges take their own notes only when necessary. This would speed up trials and court proceedings and would also create a new cadre of court professionals known as judicial or court reporters, who could either be internally sourced or outsourced to companies that can provide the service. The cost will be borne by the parties who could apply for such transcripts at a reasonable cost.
Another aspect that I have found strange in this jurisdiction is that judges would, on their own, seek to re-schedule cases where the parties have not turned up in court and have not provided any prior written communication to the court for their absence. Such cases should simply be struck out but without prejudice to the parties to reinstate them at their own cost. This will help unclog the court docket.
What role should lawyers play?
Lawyers representing parties in criminal matters should be required to: (i) set out the issues in the cases; (ii) Anything that is not in issue should (if absolutely necessary) be put into written admissions that are agreed by both sides; (iii) the defence should, following a prosecution case summary, submit a defence case statement setting out in broad terms what the accused persons defence to the charge is and what parts of a witness statement is challenged. Lawyers should be discouraged from raising points of law that have absolutely no merit and are merely used as a way of delaying trials – points of law should be raised and adjudicated on were possible before the trial commences.
You were among lawyers leading President Muhammadu Buhari’s anti-corruption fight. How can the war against corruption be won?
There are broadly two kinds of corruption – that driven by greed and that driven by need. For an effective war against each of these forms of corruption, different measures will be required. For acts of corruption driven by greed, which is more limited in occurrence, there should not be untouchables. This will serve the dual purpose of setting a clear sense of purpose, and deterring future conduct.
To fight corruption driven by need, there must be a clear sense of purpose. In that regard, the government must provide basic amenities and satisfy basic necessities of life, including jobs, education, health, infrastructure and others. There must be a zero tolerance for corruption and they must prosecute the people who are arrested for alleged acts of corruption, without fear or favour. There has to be a genuine intention to deal with the war against corruption from the government – the critical players in the war – the Federal Attorney General and his colleagues at the Ministry of Justice, the Judiciary and the Bar have to sing from the same hymn sheet.
Once the case has been handed to a prosecuting team to prosecute on behalf of the Federal Government then such a case must be devoid of interference from the Ministry of Justice and/or the Government itself. Above all, the law enforcement agencies or institutions need to be cleansed of any bad eggs that are found to exist therein. That said, there is also need for financial and other incentives to encourage those therein that are seen to have performed well.
How do you assess prosecutors preparation of cases?
Their preparation of cases has its shortcomings. It is important that a prosecutor understands all the facts of his case and has the ability to present them in a clear and logical sequence so the court can follow it. Issues of disclosure are not dealt with in the way that one would expect — such issues are fundamental to the fairness of any proceedings — where there is evidence in the prosecution’s possession that undermines its case against the accused that information must be disclosed to the accused’s team. At the Magistrate’s Court level the police are the prosecutors and do not have the knowledge and/or training to be a prosecutor. They are not governed by the rules of professional conduct.
What makes a great prosecutor?
Prosecuting is much like designing a house. You have to be able to conceive and design a strategy. That strategy must be fit for the purpose. It must be realistic, yet focused. A great prosecutor does not need many counts in a charge to prove his or her case. A great prosecutor does not embark on a fishing expedition. A great prosecutor does not ambush his opponent and must be confident enough to lay his or her case against the defendant out right from the onset. A great prosecutor is one who knows when to quit if he has no credible evidence. A great prosecutor has respect for the rule of law, fair trial and human rights of the defendant.
Why do you think the rate of conviction in high profile cases is low?
A combination of factors really. I believe that vested interests and corruption play a major part in this regard. Legally, the prosecution of complex “white-collar” crime require some sophistication, commercial or business acumen, exposure and skill. As a prosecutor you must always remember that your case is only as good as your evidence. And you need proper investigations in order to generate sound evidence capable of assisting you in discharging the burden of proof which, only you, as a prosecutor, must carry. As a prosecutor or investigator you must also understand that you cannot build cases based on or around your emotions, suspicion or even intuition that a crime has been committed. You build criminal cases based on evidence and sound evidence at that. As a prosecutor you are not allowed to shift the burden of proof on the defendant to show why he or she is not guilty of the crime you have charged. The defendant has no burden to discharge.
In dealing with corruption cases which are a type of “white-collar” crime, as an investigator or prosecutor, you simply cannot apply the same technique that you apply in dealing with common criminals to an individual charged with a “white-collar” or financial crime. These cases involve professionals who are accomplished in their own right, such as accountants, lawyers, businessmen, bankers and high-level government administrators. But those who investigate these crimes, through no fault of theirs, do not possess sophisticated personal or professional attributes and so they are easily out-manoeuvred by the defendants who are able to retain some of the most-experienced and skilled professionals to represent them.
How equipped are law enforcement agencies?
I am appalled at the conditions in which some of my colleagues in law enforcement agencies work. They have little or no facilities to carry out their functions. There are no proper interview rooms, talk less of the ability for the investigators to obtain a contemporaneous record of what is being said at the interview, either by way of audio or video recording. All you have are these confessional statements which are obtained in the most cohesive of circumstances. That is extremely dangerous when you are confronted with a defence counsel who is experienced at dealing with evidential issues. And that is chiefly why these cases fail and not because prosecutors or investigators have been compromised as is being widely and unfairly speculated. They are way too open to challenges by the defence and I will know, after all I have acted on both sides of the divide – prosecution and defence. The time has come when there must be at least audio recording of interviews. Of course, video recordings would be better.
Finally, as I have always said, the prosecutor should lead the investigator and not the other way round. What you currently find is that the investigators work in isolation and then dump the case file on the prosecutor when they are done and expect him or her to proceed to trial. To achieve water-tight cases, you need a prosecutor, who is aware of what he needs to prove at trial to direct you the investigator. This way you are able to provide him with the evidence he or she needs to discharge the burden of proving the case – a burden which can never be shifted on to the defendant to prove his or her innocence, as is often the case here.
Do the Southern Kaduna killings qualify as genocide, and when should the International Criminal Court intervene?
The answer to this question can take an entire day and ought to be the subject of a separate interview. The simple answer is that, it does not. It is extremely difficult to prove the crime of genocide which is often referred to as the: “crime of crimes”. The essential elements of this crime are extremely academic and technical. In short, you have to be able to demonstrate to the Court, that in perpetrating the killings, the perpetrator possessed what is referred to as a “genocidal intent” – that is – the intention on the part of that individual perpetrator, to act as part of a larger widespread, systematic and sustained attack designed to destroy, in whole or in part, members of a national, ethnic, racial or religious group.
So in order words, a single act of killing an individual can constitute genocide, provided you can demonstrate that it was done as part of a wider genocidal plan to destroy the members of any of the groups.
Therefore, an isolated mindless explosion of communal hatred in a particular locality such as that which occurred in Southern Kaduna cannot constitute genocide, as it has to be a lot more targeted at a particular group and its occurrence must be wider in scope. In addition, given the magnitude of such crimes, it is virtually impossible for genocide to be committed without some direct or indirect involvement on the part of the State – as in, the central government authority and you are required to prove that also.
And, yes, the ICC can intervene. First by way of a preliminary fact finding enquiry and later by a formal referral either by Nigeria itself in its capacity as a State Party to the Rome Statue of the ICC or at the instance of the ICC Prosecutor herself. In very limited circumstances, the referral can also be by way a Resolution of the UN Security Council, pursuant to its powers under Chapter VII of the UN Charter.
What, in your view, fuels genocide? Is Nigeria at risk?
Deep ethnic and/or religious division. Every country can be at risk of this. Remember I was also involved in the prosecutions following the conflict in the former Yugoslavia which was more of a religious than an ethnic conflict. In contrast that of Rwanda was purely ethnic, whilst that of Sierra Leone was largely political.
As a former genocide and war crimes prosecutor, could you share with us your most challenging experience?
My first was in 1999, when I had to make a decision whether or not to present as a key witness in my case a lady who was a victim of multiple rapes, had lost her entire family and who, having re-married several years thereafter, had started to rebuild her life, but had concealed from her new husband, the fact that she had been raped during the genocide, for fear of the cultural stigma and shame it would bring.
At one of my pre-trial meetings with her, this lady wanted me to guarantee her that if she agreed to testify in my case, her husband would not find out about that aspect of her testimony in court through the media. Although I could have applied to the court for stringent witness protection measures to be imposed which would have sought to conceal her identity, I had to choose between my role as a prosecutor who needed to prove his case against the defendant, and my role as a human being who was holding the future of this woman, who had managed to rebuild her life in my hands. Humanity prevailed and sadly, I had to drop her as a key witness in my case.
My second was one which not only challenged me professionally, but also my faith as a Christian. In 2001, I was appointed by my then boss, Ms. Carla Del Ponte, the Chief UN Prosecutor and former Attorney-General of Switzerland, to lead the joint trial of the first member of the Clergy ever to be convicted in the world of the crime of genocide by an International Court. It was the joint trial of Pastor Elizaphan Ntakirutimana and his son, Dr Gérard Ntakirutimana who after a yearlong trial, were convicted for luring and participating in the massacre of over 5,000 fellow Adventist men, women and children who sought refuge at the Seventh Day Adventist Church and hospital Complex in Rwanda. That trial later became the subject of the book written by famed and award winning American journalist, Philip Gourevitch entitled “We wish to inform you that tomorrow we will be killed with our families” It was professionally challenging because I was barely 35 years old and with just a little over 10 years post call experience at the bar.
What would you likely have been if you were not a lawyer? And how did you end up being a lawyer?
As a young boy, I wanted to be a pilot because I wanted to travel the world but then, I was hopeless at Physics. At 16, while at school in England, I formed a Reggae band with my friend and fellow classmate, Ibrahim Dikko, who is now a Director at Etisalat and I was certain at the time that I wanted to pursue a career in music. I recall that Ibrahim was a lot more certain that he wanted to study law and when the time came for us to complete our application forms for university places, he entered law as his first choice and I guess I just followed suit. I eventually ended up at Warwick University studying law but I will have you know that my worst subject at university was criminal law because I didn’t understand it. I recall that I even failed the criminal procedure course at the Nigerian Law School. It is therefore ironic that I ended up as an international criminal lawyer.
Why did you withdraw from the prosecution of Justice Sylvester Ngwuta?
I was waiting for that question. However, I have consistently refrained from making any public statements in this regard to preserve Lawyer-Client Privilege – (that is between myself and the Federal Government of Nigeria) and of equal importance, so as not to prejudice the ongoing high profile corruption trials in which I have played an integral part. This is a professional obligation which I feel I owe to them as my clients and which I am duty bound to uphold. That said, I am also all too aware that my failure to speak on the issue may have given rise to great speculation in the media and the public at large as to the reasons that may have led to this decision as I have read in some of the reports out there. I regret that I am unable to say anything more on this issue as to do so would be ethically incorrect. I will, however, remain grateful to Justice Tsoho and Chief Kanu Agabi (SAN) for their kind and generous words of encouragement having heard news of my withdrawal from the case. Frankly, I literally found myself struggling to retain my composure in court that morning as I sat listening to Chief Agabi (SAN), who I had opposed in court so vigorously for over three months, saying those kind things about me. Thankfully, that is all in the past now.
What role can lawyers play in curbing judicial corruption?
Are you trying to set me up? Well, in my view, we must strive to resist the temptation of acting as deliberate conduits to aid judicial corruption. Having said that, a clear distinction must be drawn between those guilty of committing the outright crime of aiding or offering gratification to judicial officers in order to influence the outcome of a matter before them and those whose lack of proper judgement in giving an innocent gift, amounts to a professional misconduct. This is where the need for proper ethics and regulation in our profession comes in.
Do you support the idea that a CJN can be appointed from outside the Supreme Court?
Yes, I do. The late Justice Taslim Olawale Elias is a good example of that fact.
You mentioned the need to discourage lawyers from filing frivolous applications. Are you satisfied with the cost system? Is it deterrent enough?
No, I am not. If it costs a defendant defending him or herself against a frivolous action brought by a claimant N1million in fees to enable his or her lawyer to defend the action, it cannot be said to be a deterrent to such frivolous claims when costs of only N50,000 are awarded to the opposing party. Surely, that cannot be right.
Do you remember your first day in court? What was it like?
Yes, I do. It was before a Magistrate Court in London, defending someone charged with a drink driving offence. I waffled so much my client was banned from driving for five years. At the time I was working for an outstanding Nigerian lawyer, Mr. Ned Nwoko. We were the largest black law firm in the City of London and I was a foundation staff member at the firm. Ned challenged me a lot. He enhanced and developed my interest in criminal law and I owe a lot of my success as a criminal lawyer to his tutelage.
Why do some corruption cases still drag despite the ACJAs provisions for daily trials and no stay of proceedings? How can the law be better enforced?
The ACJA is a relatively new piece of legislation and it will take time for the relevant stakeholders in the criminal justice system to change their old ways. I have great faith that the system will improve with time. The fast pace at which Justice Okeke of the High Court of the FCT is proceeding with the Ademola joint trial is a case in point. I think he has heard about 12 witnesses over about nine sitting days. That is an excellent achievement and an indication that things can improve and progress rapidly.