3rd May, 2012
A Federal High Court in Lagos, Nigeria recently dismissed the corruption charges filed by the country’s anti-graft agency, the Economic and Financial Crimes Commission (EFCC) against the former Managing Director of Intercontinental Bank, Erastus Akingbola, for lack of diligent prosecution and discharged the accused on all the charges before his Court. In the same vein, the trial judge, Justice Charles Archibong sanctioned the prosecuting attorneys led by five Senior Advocates including the President of the Nigerian Bar Association (NBA) and directed the Attorney-General of the Federation and Minister of Justice, Mohammed Adoke, to disband them accordingly while describing them as a drain in the public purse. Other Senior Advocates involved in the prosecution of the case are Emmanuel Ukala, Konyinsola Ajayi, Kola Awodein, and Damien Dodo.
Every defendant in a criminal case has the right to a speedy trial and the right arises from the time the government has arrested, indicted or formally filed a criminal complaint against a person. The speedy trial right is “an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimise anxiety and concern accompanying public accusation and to limit the possibility that long delay will impair the ability of an accused to defend himself.” Dickey v. Florida, 398 U.S. 30, 37–38 (1970). In addition, if a trial is delayed for a long time, it may cause prejudice to the defendant; witnesses may become weary or start to disappear, memories may begin to fade or entirely lost thereby affecting the ability of witnesses to recall evidence as passage of time “may blur the memories of the witnesses leading to an unjust verdict”, death or insanity or other mental disability of key witnesses after a long delay. Crucial evidence may also be lost or destroyed in the process.
Eventhough the right that is being protected is the defendant’s right not to have a prolonged wait between arrest or indictment and the trial, the right to a speedy trial is also in the best interest of the prosecutor and the general public as it reduces the cost of prosecution – defendants in government custody must be supported at considerable public expense.
Courts look for certain factors when deciding whether a defendant’s rights to a speedy trial have been violated. In Barker v. Wingo, 407 U.S. 514 (1972), the U.S. Supreme Court laid down a four-part case-by-case balancing test for determining whether the defendant’s speedy trial right has been violated in the case. The four factors are: Length of delay: a delay of a year or more from the date on which the speedy trial right attaches was termed “presumptively prejudicial,” but the Court has never explicitly ruled that any absolute time limit applies; reason for the delay: the prosecution may not excessively delay the trial for its own advantage, but a trial may be delayed to secure the presence of an absent witness or other practical considerations; time and manner in which the defendant has asserted his right: if a defendant agrees to the delay when it works to his own benefit, he cannot later claim that he has been unduly delayed and lastly, the degree of prejudice to the defendant which the delay has caused.
However, on the length of delay, there is really no clear or absolute time limit that is considered too long of a delay. Generally, it is presumed that a defendant is denied a speedy trial if there is a delay of a year or more from the date of indictment or arrest. The government may overcome this presumption by giving showing a good cause for the delay as long as the prosecutor has not been negligent in the prosecution of the case. In addition, if the defendant is out of custody then, his trial may take a much longer time as the Attorney General may require additional time to make a filing decision. For instance, in most serious high profile cases particularly, where the defendants are out of custody, prosecution may last several months or even more than a year because the interest of both the public and the defendant in obtaining a speedy trial is outweighed by the need to allow for adequate time to properly gather, review and act upon the extensive evidence, documents and other discovery materials which may be located around the world. Under such circumstances, a long delay from the indictment to the trial of the defendant would be excusable or excusable delay for purposes of determining whether or not the defendant’s right to a speedy trial has been violated. In some jurisdictions, the following delays are also excusable and are excluded in computing the time within which trial must commence: any period of delay resulting from other proceedings concerning the accused, including but not limited to: delay resulting from an examination of the physical and mental condition of the accused, delay resulting from proceedings with respect to other criminal charges against the accused, delay resulting from extraordinary remedies against interlocutory orders, delay resulting from pre-trial proceedings and any period of delay resulting from the absence or unavailability of an essential witness. Under the U.S. Speedy Trial Act, 18 U.S.C. § 3161(h)(1)(F), 1974, certain pretrial delays are automatically excluded from the Act’s time limits, such as delays caused by pretrial motions. In Henderson v. United States, 476 U.S. 321, 330 (1986), the U.S. Supreme Court held that the Speedy Trial Act excludes “all time between the filing of a motion and the conclusion of the hearing on that motion, whether or not a delay in holding that hearing is reasonably necessary.”
In addition, the defendant’s own action such as filing frivolous motions or requesting prolonged adjournments to delay his trial and extend the pretrial phase of his case cannot be used in computing the length of delay for the purposes of determining whether his right to a speedy trial has been violated because a defendant may not and cannot benefit from his own delinquency or aggregate wrongdoing.
By and large, for a defendant to benefit from his right to a speedy trial, the defendant must be proactive in asserting his speedy trial rights at the initial stage of the pretrial proceedings; otherwise, he may presumptively waive his rights. He should not accept prolonged adjournments or agree to several pretrial delays by the prosecution or even the Court and later come back to complain against the violation of his right. Even though, in many jurisdictions, the right to a speedy trial is statutory and may not be directly waived, a defendant’s conduct, larches and acquiescence and filing frivolous pretrial motions can be very crucial in determining whether speedy trial rights have been violated by the prosecution. In most cases, these conducts are regarded as a waiver of a defendant’s speedy trial rights.
Even though the defendant is not required by law to assert his speedy trial right before trial, it is advisable to do so as failure to make such an affirmative request may affect his motion challenging the violation of his rights. Flowing from above, it presupposes that dismissal for violation of speedy trial rights must be based upon a motion by the defendant, not by the court Suo motu (on its own motion) just because the judge was in a way annoyed with the slow speed of the prosecution. The Court in dismissing a case for violation of speedy trial rights of the defendant must consider whether such violation has prejudiced the defendant. In United States v. Loud Hawk, 474 U.S. 302 (1986), the Court held that a 90-month delay occasioned by interlocutory appeals did not weigh against the prosecution for the purpose of speedy trial rights of the defendant. The US Supreme Court further held that the possibility of prejudice occasioned by the delay was not sufficient to establish a Sixth Amendment speedy trial violation. Moreover, the court of appeal routinely rejects Sixth Amendment speedy trial challenges in the absence of a showing of prejudice to the Defendant. Even where the Judge is inclined to dismiss a case pursuant to the speedy trial violation, the Judge must consider various factors in determining whether to dismiss with prejudice or without prejudice. One of the factors includes the seriousness of the offense, the circumstances leading to dismissal, and the impact that a new prosecution would have on the administration of justice and the criminal justice system.
A defendant’s right to a speedy trial has constitutional and statutory foundation. Unfortunately, under the Nigerian legal system, there is no Constitutional provision that guarantees a defendant’s right to speedy trial or provides for specific time limits for the set specific time limits for initiation of trial or computation of time within which a criminal trial must occur unlike in other jurisdictions such as the United States where the Sixth Amendment to the Constitution and the Speedy Trial Act set forth rights related to criminal prosecutions. The Sixth Amendment to the U.S. Constitution stipulates that “ in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committee” while the Speedy Trial Act of 1974 establishes time limits for completing the various stages of a federal criminal prosecution. All the US states also have similar statutory provisions which provide for very specific time limits criminal trials.
To the contrary, there is no statute to determine the computation of time in Nigeria; so who determines when the speedy trial period would run and expire? Therefore, criminal trials in Nigeria can take several years to conclude due to the defendants taking undue advantage of “motion conundrum”; that is the pretrial period for filing pretrial motions which in many cases can delay a criminal trial by several years. Most of the delay during the “motion conundrum” is usually at the instance of the defence who may not want the case to proceed to trial for the reason that the defendant may not want the Court to pronounce his guilt. Again, in very serious crimes, speedy trial is not always beneficial to the defendant as he may not be able to prepare adequately for the trial and it is usually regarded as an invitation to guaranteed conviction in the face of a formidable prosecution and overwhelming evidence. For example, after about 159 months (over twelve years) of trial, Major Hamza Al-Mustapha, the former Chief Security Officer to the late Head of State General Sani Abacha and Lateef Shofolahan was on January 30, 2012, sentenced to death by hanging by a Lagos High Court over the murder of Kudirat Abiola, wife of the acclaimed winner of the June 12, 1993 Presidential election, Chief Moshood Abiola..
In Akingbola’s case, it is evidently clear from the ruling and the history of the case that the Judge was dissatisfied with the conduct of the prosecution team; hence, the learned trial Judge dismissed the case with sanctions for what he described as abuse of Court process and violation of the defendant’s right to a speedy trial.
Abuse of court process and violation of the Defendant’s speedy trial rights are too weighty allegations which are today, some of the banes of the rule of law in Nigeria and one should applaud the judge for his fearlessness in dismissing the case and meting out appropriate sanctions to the erring prosecution team in this regard.
The rule of law and abuse of court process cannot co-exist symmetrically in the same legal system as both are intrinsically contradictory in terms having different properties and relationships. According to the observation of Lord Goldsmith: “The rule of law is not simply about rule by law; such a proposition would be satisfied whatever the law and however unfair, unjust or contrary to fundamental principles, provided only that it was applied to all. The rule of law comprehends some statement of values which are universal and ought to be respected as the basis of a free society”.
However, while analysing the negative effect of the doctrine of abuse of process on the rule of law in the Brooks case, Sir Roger Ormrod held inter alia that: It may be an abuse of process if: “the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality, or on the balance of probability the defendant has been or will be prejudiced in the preparation or conduct of his defence”.
The abuse of court process in Nigeria has in most cases led to situations where judicial decisions are influenced by extraneous considerations such as political equations and relationships, economic factors and power structures. Hence, even the most brilliant legal analysts may not be able to predict the outcomes of any case no matter how well cut and dry it is, thereby tinkering with the doctrine of predictability and fairness which the rule of law imposes. The presence of abuse of legal process in any legal system also makes the operation of the rule of law very vulnerable, subjective, permeable and outcomes largely biddable and commercialized. Instead of being an integral part of the success of democracy, abuse of court process can easily turn the judiciary into an institutional obstacle and constraint to democracy.
To this effect, both the dismissal of the case against Akingbola and the sanctions against the prosecuting attorneys may be justified even though, the Judge’s motive for his action and his criteria for the computation of time in the absence of statutory or constitutional provision may also be put on a searchlight. However, Judges have very wide powers when it comes to sanctioning of erring lawyers. Only recently, a New York appeals court suspended a lawyer from law practice for two years after a federal grievance committee found he had submitted briefs of “shockingly poor quality.” Another lawyer was sectioned by the same Court for ‘frivolous, outrageous and unprofessional deposition behaviour”. At the deposition, the lawyer who has been practicing meritoriously for forty years, “repeatedly interrupted the questioning and made improper objections and lengthy speeches that had no merit”; but the New York Appeals Court imposed a $10,000.00 sanction on him for his behaviour while he was also ordered to pay attorney fees to the opposing side for the costs of pursuing the sanctions motion. Be that as it may, it is doubtful whether a Judge can disband a prosecuting team as part of his sanctions without usurping the functions and powers of the Attorney General of the Federation who appointed the prosecutors.
Nonetheless, can Judge Achibong’s order represent the fruit of the poisonous or forbidden tree or can his order serve the interest of justice? Did he overreact or has he not thrown the baby away with the bath water all in a bid to give the baby a through clean shower?
A cursory examination of the entire proceedings on that day and the historical background of the proceedings before the trial judge might taint and stigmatize the motive behind the Judge’s order of dismissal and sanction. We are told from the records that the prosecuting team had earlier filed a motion requesting the judge to disqualify himself from the case which he denied as a result of which the prosecuting team filed an appeal. We are also told from the records that after hearing the prosecution argument, the judge rose and went into his chamber to write his ruling on the prosecution’s motion to stay further proceedings in the matter pending an appeal against his refusal to recuse himself; again, we are told that minutes later, the Judge came back into the courtroom and delivered the far reaching order dismissing the case and sanctioning the lawyers thereby rendering the appeal against his refusal to recuse himself moot. Finally, records available to the public indicate that the Judge made the far reaching orders sua sponte without a formal application or prior motion or request to that effect by the defendant.
Arguably, the Judge should not have sat on the case after a motion for recusal had been filed and argued against him even if he had denied the motion as he did in the instant case; otherwise, his decisions and rulings might be tainted with bias and retaliation. Writing on a paper, “Deciding Recusal Motion: Who Judges the Judges? Prof. Leslie W. Abramson posits that “judicial impartiality is a significant element of justice. Judges should decide legal disputes free of any personal bias or prejudice. As a result of a conflict of interest, a judge may be unable to maintain impartiality in a case and thus should be disqualified”. Public confidence in a legal system and the ability of the judges to discharge their duties fairly without bias is crucial to the effective dispensation of justice. A legal system that does not enjoy public confidence in its ability to dispense justice fairly and speedily, will ultimately collapse; hence, the foundation of democracy and rule of law.
Even though, the decision whether or not to withdraw from a case rests squarely on the discretion and good conscience of the presiding judge, the general standard for disqualification is that a judge should disqualify himself in a proceeding in which the judge’s “impartiality might reasonably be questioned.” In addition, it is doubtful whether Akingbola’s case is the only criminal action before Judge Achibong that had been pending for more than two years; if that is the case, his impartiality might reasonably be questioned for not satisfying the appearance of justice. In rule of law and judges’ disqualification, what matters is not the reality of bias or prejudice but its appearance or a scintilla of it.
Lastly, while the Judge had chided the prosecution for tardiness, by far the worst culprit for the protracted tempo of criminal trials in Nigeria is the outdated, behind the times and tedious nature of the Nigerian criminal justice system and the administration of justice which require a total overhauling, remodelling and new legislation. Case management is very crucial to the criminal justice system and lack of it can be very vital to effective administration of justice. Currently in Nigeria, our criminal procedure does not have a place for pretrial conferences and in most cases; judges do not take active roles in ensuring compliance with speedy trials and effective administration of justice. In most jurisdictions, it is the duty of the trial judge to schedule a trial management conference to discuss administrative aspects of the case, such as scheduling and other pretrial matters.
Pretrial conferences which are also being been conducted in civil cases in several jurisdictions including Nigeria to formulate and simplify the issues in the case, eliminate frivolous claims or defences, obtain admissions of fact and documents to avoid unnecessary proof, identify witnesses and documents, make schedules for the submission of pretrial briefs and motions, make rulings on motions submitted before the conference, set dates for further conferences, discuss the possibility of a settlement, and discuss the consolidation or management of large, complex cases can also be introduced in criminal cases as well in order to make trial judges more proactive and effective in the administration of justice and to decide matters that do not go into the core of the case such as whether the defendant is guilty or not. A pretrial conference in criminal cases can be conducted to expedite disposition of the case, help the court establish managerial control over the case, discourage wasteful pretrial activities and improve the quality of the trial with thorough preparation. The Judges can also use the pretrial conferences to admonish a tardy prosecutor and put him back on fast track. For instance in the US, Under rule 17.1 of the Federal Rules of Criminal Procedure, pretrial conferences for criminal cases may be conducted to promote a fair and expeditious trial which in practice, include a decision on such preliminary matters as what evidence will be excluded from trial and what witnesses will be allowed to testify at trial.
Nigerian Courts are always congested and crowded by the day, therefore, the use of pretrial conferences in criminal cases to narrow down issue for trial will help to decongest the Court system and assist in the prompt and effective delivery of the criminal justice system. Pretrial conferences can save valuable time for courts by narrowing the focus of the trial and resolving preliminary matters.
For now, however, it remains contentious whether Judge Achibong’s conduct is yet another classical scenario of judicial activism by the bench or has met the ends of justice. Be that as it may, judges have a vital role to play in the administration of justice and the criminal justice system. They must not only be seen to be impartial, they must also avoid conducts and actions that betray their emotions and refrain from taking actions that suggest they have made up their minds well in advance. At all times, they must remember that judges are not only accountable, they also fall under several observations and scrutinies.
•Oladele wrote in from Lagos