OAL Wig of the Month – Dr. Olisa Agbakoba SAN

INTRODUCTION

The OAL wig of the month, Dr. Agbakoba studied at the University of Nigeria, Nsukka (1973-1977), London School of Economics and Political Science (1979-1980), and the University of London (1980). Before founding Olisa Agbakoba Legal | OAL formerly Olisa Agbakoba and Associates (OA&A) in 1983, he was a Research Fellow at the Institute of International Affairs (1981) and Guest Lecturer at the Military and Command School, Jaji (1981). He is a Senior Advocate of Nigeria (equivalent of Queens Counsel).

Dr. Agbakoba is an active champion of human rights, democracy, and the rule of law in Nigeria and Africa. He was President of the Nigerian Bar Association (2006-2008) and in 1987 had founded the Civil Liberties Organisation (CLO), of which he was president from 1987 to 1995. He was in that capacity in the forefront of the long struggle for democracy in Nigeria from 1989 through 2001, during which period he also led the United Action for Democracy as Convener (1998 to 2001).

Dr. Agbakoba is the Senior Counsel of the Human Rights Law Service and a member of numerous human rights organisations, including the Human Rights Institute of the International Bar Association, International Centre for the Protection of Cultural Diversity and Human Rights in Africa, and the Nigerian Episcopal Commission for Justice and Peace.

Dr. Agbakoba has served in various appointive governmental positions and is at present a member of the Presidential Task Force on Petroleum Revenue Management.

INTERVIEW:

1. The current administration has re-iterated its zero-tolerance for corruption. With your vast experience in debt recovery, commercial, criminal litigation and development law, what practical advice would you give on how to curb the menace?

The fight against corruption should not be personal but institutional. It should not be based on the integrity of the President. Currently, the fight rests on the integrity of President Buhari as seen in the Dasuki case where the President personally ordered the arrest of the former National Security Adviser. The President has no right to order an arrest under any circumstance. The necessary institutions must be put in place to fight the menace of corruption. It is also necessary to secure the independence of all law enforcement and anti-graft agencies.

2. Institutional pathway has been identified as the most effective way of confronting corruption in an emerging democracy, what do you think can be done to improve the effectiveness of the two anti-graft institutional agencies (EFCC) and (ICPC)?

This question follows from the answer to the first one, given earlier.

There is need to review the anti-corruption landscape. The functions of both anti-graft institutions have been confused. EFFC is expected to handle cases relating to financial malpractice while ICPC should deal with corrupt public officers. As at today, EFCC has usurped the role of ICPC and paralyzed it. There is also the issue of the use of wrong laws. I am of the view that three things need to be done urgently;

-Uphold the independence of both anti-graft agencies

-Ensure that the proper functions are outlined and they carry out these functions

-Determine whether the duties of investigation and prosecution can be effectively handled by these institutions.

I do not think the EFCC and ICPC can investigate and prosecute at the same time. Their functions should be restricted to investigation alone. The UK model where these roles are distinctly separated is a good example for Nigeria to follow. In UK they have the Serious Fraud Office, The Crown Prosecution, Scotland Yard and others, all with clearly defined roles. In Nigeria there is a need to delink the Office of the DPP from The Ministry of Justice for greater effectiveness.

3. There have been so many corruption cases and very few convictions. What, in your view, is the reason for this and what can be done?

As mentioned earlier the problem is one of weak institutions, interference of the Executive in the judicial process and poor funding. Also, the corruption crusade has been largely politicized.

4. It could be said that corruption has become internationalized as the stolen funds are often stashed extra-territorially. Do you consider ‘Mutual Legal Assistance’ as an adequate strategy for the recovery of stolen funds stashed abroad by former corrupt leaders?

Absolutely, Nigeria is a signatory to important international treaties including the one entered into with South Africa. Being signatories to these treaties gives us the power assistance from other countries to request stolen funds to be repatriated and to institute criminal proceedings. But for this to be effective, Nigeria has to create the right institutions and the enabling laws. This will help to ensure that court proceedings are concluded.

All proceeds of crime are laundered and so the country needs to establish a national money-laundering office, while strengthening its criminal justice system. The necessary investigative skills need to be put in place. Failure to secure a conviction locally in the James Ibori matter was due largely to prosecutorial lapses. The prosecution failed to plead, how much more establish the underlying crime of stealing and subsequently money laundering. Principal persons such as Nuhu Ribadu were not called as witnesses in this case.

5. As an expert in these matters, could you please explain what checks need to be put in place to ensure that the stolen funds recovered are properly accounted for and actually employed for development purposes?

Following from 4 above, there is need to strengthen EFCC and other relevant institutions and to ensure the independence of the judiciary while promoting competent and forthright persons.

6. The Ibori’s trial and successful conviction in London is a veiled indictment on the reliability/effectiveness of our criminal adjudicatory system. Could you please explain how the Nigerian government can ensure that these criminal trials are concluded locally and in such a professional manner that they are enforceable abroad?

The answer to this question flows from the earlier two questions.

7. What is your view on the proposal to introduce special courts to handle corruption-related cases? Do you think these special courts would be better placed to more effectively apply the ‘speed of justice principles’ as proffered and articulated into your Firm’s speed of justice program?

There is no need for special courts. We must deal with the problem from the root. Instituting special courts will just amount to transferring the problem that the judiciary is already battling with. In spite of the constitutional guarantees which the judiciary enjoys, it is not as free and independent as perceived. For instance, the consent of the governor is needed at the state level before a judge can be appointed. Though Executive interference is not as strong as is the case with institutions such as the EFCC, the Nigerian judiciary is still fraught with the challenges of insufficient funding, poor pay structure for judicial personnel (particularly judges). Appointment procedures are also skewed because of factors such as quota system, therefore the best hands are often not appointed to the bench. Becoming a judge is tantamount to social suicide, judges need to be adequately remunerated for the jobs they do.

In order to guarantee a judges independence, you must appoint the best quality hands, pay them well and train them adequately. An example should be taken from the UK model where the judiciary has been made attractive.

8. Often times, in the event that corruption cases are prosecuted and a conviction obtained; the stolen funds are largely not recovered or recoverable. We understand that some foreign jurisdictions go the extent of setting up ‘Trust Funds’ with these unrecovered funds. What do you think about the justice and morality of this practice of separating recovered funds from their real owners? Do you see a viable solution to this problem?

There is the problem of lack of skill in the recovery process. Any competent Attorney-General should understand that it is in the interest of the west not to repatriate these stolen funds due to the hypocrisy of the West. It is unfortunate that we do not have the necessary protocols in house for repatriating these stolen funds. In order to get our money back, we need to do what we need to do. The wake-up call is to get our institutions right by getting into the brain of the western powers.

9. As a former President of the Nigerian Bar Association, do you think we have enough lawyers with expertise in asset-tracing and recovery in corruption cases? What ways do you think lawyers could assist in ensuring that ‘Mutual Legal Assistance’ and similar bilateral and multi-lateral programmes are not skewed against developing countries like Nigeria?

There is absolutely no expertise in this area, coupled with the fact that there are few lawyers in the system. There is also a general decline in standards. The general sense of hustle in the economy makes hard work and true professional development unattractive. That can do spirit is nonexistent. The fact that there is no national thinking has affected the legal profession and all other professions including medicine.

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