JUSTICE: LOSS OF PUBLIC CONFIDENCE-NEED TO SEPARATE OF INVESTIGATIVE AND PROSECUTORIAL FUNCTIONS OF EFCC AND ICPC (7)

“Where there is a separation of the duties of investigation and prosecution, there will be increased likelihood of fairness to an accused who will by this development be shielded from unfair persecution or even prosecution”.

Over the course of several weeks I discussed the loss of public confidence in the justice delivery system in Nigeria and why lawyers alone should not be blamed but before I could complete my discussion the decision of government to appoint new vice chancellors for some Federal universities attracted national attention necessitating my comment on that matter. I therefore shelved further discussion on the need to separate the investigative and prosecutorial functions of EFCC and ICPC.

As noted earlier, such a separation of the investigative and prosecutorial functions of the EFCC, ICPC and other law enforcement bodies separation of function will ensure that the investigator does not loose objectivity in assessing cases before charging suspects to court. In addition, the following has also been acknowledged as advantages for such a separation.

a.Accountability – Separating the two functions and investing them in different bodies will bring about accountability in the system as this will ensure a system of checks and balances in the process of investigation, indictment, prosecution and conviction.

b.Fairness to the accused – Where there is a separation of the duties of investigation and prosecution, there will be increased likelihood of fairness to an accused who will by this development be shielded from unfair persecution or even prosecution.

c.Efficiency – There will be increased efficiency in the overall administration of criminal justice.

NEED TO CULTIVATE DEDICATED POOL OF PUBLIC PROSECUTORS
Nigeria has at the Federal level the office of the Director of Public Prosecutions. This is also replicated in the Ministries of Justice of all the states with their own Directorates of Public Prosecution. Furthermore, EFCC and the ICPC also have their own prosecution units. However, experience has shown that the EFCC and the ICPC occasionally instruct private legal practitioners to conduct prosecution. While I do not doubt the competence of such private legal practitioners, I believe that if left unchecked the practice may deny prosecutors being paid by tax payers the opportunity of honing their prosecutorial skills. Prosecution of financial crimes including money laundering requires expertise not just to investigate but also to prosecute. Such expertise can only be best acquired through constant involvement in prosecution. I therefore advocate intensive training of a dedicated pool of public prosecutors to handle prosecution of matters bothering on the Economic and Financial Crimes Commission Act and the Independent and Corrupt Practices and Other related offences Act. This is indeed the practice in most other jurisdiction in which public prosecutors are given adequate training in specialized areas of the law such as organized crime, human trafficking, sexual abuse etc.

CIVIL MATTERS
The complaint of poor delivery of justice also stems from the time it takes between the institution of an action in court to hearing and conclusion of the matter. I have highlighted several factors which contribute to this including the attitude of litigants themselves. However, I know from experience that some delays are occasioned by the decision of parties to take full advantage of the rules of procedure of the court. For example, matters such as amendment of pleadings and challenges to the jurisdiction of the court provided opportunities for recalcitrant defendants to unduly delay hearings. However, to meet the challenge there have been changes to the various rules of court beginning from the innovation brought about by the High Court of Lagos Civil Procedure Rules in 2004 which introduced the following amongst others:

1.Frontloading of Witness Statement on Oath - By this, parties are required to file along with their claims statements of their witnesses already reduced to writing and sworn before a Commissioner for Oath. This obviates the need for long examination in chief, a process which used to take hours if not days.

2.Frontloading of documents - By this, parties are also required to file alongside their originating processes, copies of documents they intend to rely upon at the trial. This also saves time during trial.

3.Limitation on Amendments – There was also introduced a limitation on a number of times a party could amend his pleadings during trial proper.

The above provisions were replicated in a number of rules of several courts. In 2009, the Federal High Court Rules took matters a step further by expressly regulating the time within which a defendant could file an application to challenge the jurisdiction of the court and also permitting the Judge in some instances, to hear such objections together with the merit of the case. These and similar provisions were also adapted for use in the hearing of the various election petition and together with a constitutional limitation on the period of hearing of such petitions brought about expeditious hearing of same.

However, there can be further improvement and one such area I believe can still be positively impacted upon is the manner in which matters are listed or adjourned. At the present moment, matters are not adjourned and heard from day to day and are often adjourned to permit parties take certain steps in the matters such as amendments and joinder of parties etc. I however advocate a system whereby the trial of matters is fixed for hearing on a day to day basis after conclusion of all preliminary matters. In such a system, a Judge need not list 30 matters on his cause list. He may limit himself to perhaps two of three matters a day with the knowledge and conviction that those matters must proceed to hearing as planned and must not be adjourned save for extreme reasons. This can be applied to both criminal and civil matters. In the United States, matters may take a year or even two to get to hearing, but once hearing commences it is hardly ever adjourned until conclusion. Thus high profile cases such as the trial of Michael Jackson and OJ Simpson proceeded on a day to day basis.

Next week, I will consider whether or not judges are to blame for loss of public confidence in our justice delivery system.