Exclusive: Why I Dragged Dasuki, Okonjo-Iweala to ICC-Falana Opens Up!

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Femi Falana, lawyer and human rights activist, 53, was born in Ilawe, Ekiti State. He was educated at St. Michael’s Primary School, Ilawe, 1963-1968; Sacred  Heart Catholic Seminary, 1971-1975; University of Ife, now Obafemi Awolowo University, Ile-Ife, 1977-1981; Nigeria Law School, Lagos, 1981-1982. He was former President, National Association of Democratic Lawyers. He has been head of Femi Falana Chambers since 1991. He was the chairman, West African Bar Association, WABA. He contested the governorship election of Ekiti State in 2007, under the platform of the National Conscience Party, NCP whose founder and national chairman was the late Chief Gani Fawehinmi. Falana is one of the legal advisers of the Socio-Economic Rights and Accountability Project, SERAP, which has other very distinguished lawyers and academics of international repute on its board. Falana has employed the legal profession as a formidable tool of social engineering, keeping successive governments on their toes much in the manner of his mentor, the late Fawehinmi. Falana has a devil-take-the-hindmost penchant for diving head-long into legal tussle.  He has been in the forefront of defending several military officers and soldiers who were charged before court-martials for demanding weapons to fight the Boko Haram terrorists. He is also in the thick of the legal fireworks raging over the Kogi State governorship. Recently, Falana sent an application to the Special Prosecutor of the International Criminal Court (ICC), requesting, investigation into the allegations of crimes against humanity committed by serving and retired military officers and their civilian accomplices. Having diverted over $8 billion earmarked for the procurement of arms and armament for counter insurgency operations, the suspects who aided and abetted the dreaded Boko Haram sect in the barbaric killing of over 25,000 soldiers and civilians (including children and the displacement of 2 million people), Falana argued, ought to be prosecuted at the ICC for crimes against humanity. The petition has drawn the ire of erstwhile Finance minister, Dr. Ngozi Okonjo-Iweala , who was listed by Falana, among those who ought to be prosecuted for allowing such heinous crimes under her supervision. Okonjo-Iweala’s attack was ascerbic, but fiery Falana, has roared into battle raining canons of facts and figures on enemy positions… In this interview with The New Diplomat, Falana comments on the ICC issue, Ekitigate, electoral offences, the ongoing anti-graft war and sundry legal matters.

Will it be correct to see your petition to the ICC as a reflection of your lack of confidence in the ability of Nigeria’s justice system to deal adequately and expeditiously with the high-profile arms deal cases?
It has nothing to do with loss of confidence in the Nigerian criminal justice system. Indeed, the Administration of Criminal Justice Act has provided for expeditious trial of criminal cases in federal courts.  But whereas the economic and Financial Crime Commission, EFCC, is investigating complaints of criminal diversion of public funds by a former NSA, Col. Sambo Dasuki and some ex-service chiefs as well as their civilian accomplices,  my petition to the special prosecutor of the International Criminal Court, ICC, pertains to allegations of crimes against humanity. The Nigerian criminal code has not criminalised genocide and crimes against humanity. The bill for the domestication of the Rome Statute which is pending in the National Assembly has not been passed into law. I do hope that my petition will inspire the National Assembly to pass the law without any further delay.
But for now, it is only the ICC which can deal with the offence disclosed in my petition which has to do with encouraging terrorism by stealing $8 billion earmarked to procure arms and ammunition. In the process, over 25,000 people were brutally massacred, 2 million displaced while women and school girls were abducted and sexually assaulted by the insurgents. Apart from the atrocities committed by the terrorists, the ex-service chiefs engaged in genocidal acts by allowing the terrorists to slaughter our soldiers who were forced to fight without weapons. Article 7 of the Rome Statute provides for the trial of persons who bear responsibility for such gross human rights abuse. In the alternative, I have suggested that the indicted serving and retired military personnel be tried for mutiny in courts-martial because mutiny under Section 52 of the Armed Forces Act includes any act that impedes the performance of the Nigerian Army against the enemy. In this case, there is abundant evidence to prove that the military high command deliberately sabotaged and impeded the performance of our soldiers and allowed the terrorists to overawe our people in the North East region.

Any acknowledgement /response yet from the ICC?

The petition has been acknowledged by the office of the Special Prosecutor. A decision will be taken on it at the appropriate time.   By the way, the ICC had, before my petition, opened investigation into the atrocities perpetrated by the Boko Haram sect and some military officers. All I have asked for is that the inquiry be expanded to include the involvement of serving and retired military officers and civilian collaborators who aided and abetted the insurgents through corrupt practices. Can you imagine that the Nigeria Air Force authorities went to the extent of buying tokunbo (second –hand) planes at outrageously exorbitant prices? Even though they were not in serviceable conditions, they tricked some officers to fly them and they crashed and lost their lives. Such criminality transcends the terrain of criminal diversion of public funds. It is a crime against humanity per se.

What has been the Military’s response to your call for the review of the sentences slammed on soldiers who mutinied /deserted Boko Haram battles apparently over poor weaponry?
I did not defend any soldier who deserted the army. All our clients fought gallantly, but they were frustrated by the military high command at the material time. Because they were smiling to the bank, they facilitated the continuation of the war on terror. For that reason, they neither equipped nor motivated the soldiers. As our clients did not join the army to commit suicide we challenged the trial on solid legal grounds. Their legitimate demand for equipment to fight the well- equipped Boko Haram members was portrayed as mutiny by the ex-service chiefs in a bid to divert attention from the looting of the security fund. So far, 3,002 dismissed soldiers have been reinstated. Out of the 70 who were sentenced to death, 66 have had their death sentences commuted to 10 years. We have reminded the Chief of Army Staff of the remaining four condemned soldiers. We have equally appealed to President Buhari to pardon all the convicted officers and soldiers in view of the damning evidence that the huge fund set aside for the purchase of arms was diverted. At the same time, we have concluded arrangements to file appeals at the Court of Appeal praying that the convictions and sentences be quashed because the trials at the courts-martial were marred by gross miscarriage of justice. With respect to Brigadier-General Enitan Ransome-kuti, we are awaiting the decision of the Army Council on our representation made on his behalf following his unjust conviction by a special court-martial.

What’s your take on the Kogi State debacle and the Supreme Court verdict on the River State governorship?
I am involved as a counsel in the resolution of the Kogi State legal debacle. To that extent, I cannot comment on it as the matter is sub judice. With respect to Rivers State governorship election petition, the Supreme Court has not adduced reasons for its judgment. For that reason I am not in a position to subject the judgment to any form of critical analysis for now. In other words, it is better to keep our fingers crossed while we await the reasons for the judgment which will be handed down on February 12, 2016.

Ekiti gate: What are your views on the new “revelations”. Can the court be persuaded to resit on the governorship case? Curiously, the court order to arrest Aluko for perjury implies an admission by the court that Aluko’s “revelations” are true.
The Ekitigate is an unfolding drama of shame. Already, the panel of inquiry instituted by the military authorities to investigate the illegal militarization of the 2014 governorship elections in Ekiti and Osun states has confirmed the criminal use of armed soldiers to rig the elections. Some officers have been recommended for outright removal while others have been referred to the EFCC for investigation and possible prosecution for receiving money to intimidate voters and manipulate the electoral process. Dr. T. K. Aluko has only revealed to the Nigerian people what had been confirmed by the military authorities.
If the emerging evidence is sufficiently compelling, the court can revisit the case. In other words,  if the final report of the military authorities and the EFCC confirm that what took place in Ekiti State was a military coup and not an election the petition of the APC against Mr. Ayodele Fayose’ election as governor can be revisited.
I have not seen a copy of the warrant of arrest issued by the magistrate court in Ado Ekiti for the arrest of Dr. Aluko for his expose, but it is doubtful if a magistrate court sitting in Ekiti can order the arrest of a man who is accused of committing perjury in Lagos. In other words, he is being accused of addressing the press in Lagos contrary to his testimony before the election petition tribunal which sat in Ado Ekiti. It would have been a different matter if the press conference had occurred in Ekiti State.
When Captain Koli exposed the Ekitigate there was an initial denial by Mr. Fayose. But when confronted with concrete evidence of his involvement in the malfeasance he admitted that he appeared in the video recording.  Aluko has merely confirmed Captain Koli’s revelations.

President Buhari reportedly said the judiciary was his major headache in the anti-graft war. What is your interpretation of this? And what’s your reaction to it?
With respect, I do not share the view of President Buhari on the matter. I would rather blame the neo-colonial legal system which allows the rich to exploit loopholes to avoid prosecution for heinous offences. The frustrations of the President are understandable, but he cannot afford to throw up his hands in utter helplessness. As I have repeatedly maintained, our courts are congested with other matters which are competing with corruption cases. Whenever we had problems with crimes which threaten national stability or economic prosperity we have always set up special courts. To regulate trade unions and avoid paralytic strikes, the National Industrial Court was set up. To deal with bank fraud which threatened the banking sector, the failed bank tribunals were created. To deal with communal crises and other civil disturbances, judicial commissions of enquiry are set up from time to time. To stop electoral fraud, the election petition tribunals have been established with specific mandate to hear and determine election petitions within 180 days. These ad hoc courts and tribunals are set up because the regular courts cannot cope with the urgency required in dealing with the specific problems. Instead of blaming judges for frustrating corruption cases, President Buhari should forward a bill to the National Assembly for the establishment of an anti-corruption court or a Financial Crimes Court.

What’s your take on the AU’s threat to withdraw from the ICC over alleged targeting of African leaders? Neither Bush jnr nor his accomplice, Blair, has been tried over the falsification of documents to invade Iraq —against UN resolution .Thousands of lives were lost.
The threat of African leaders and rulers to pull out of the ICC cannot stop African dictators who commit genocidal acts and other crimes against humanity from facing Justice. The African Union has conveniently forgotten that majority of the cases from Africa were referred to the ICC by African governments. They have equally forgotten that President Charles Taylor was not jailed by the ICC but by the Special Court for Sierra Leone set up by the Security Council at the instance of the sovereign state of Sierra Leone.
Under the doctrine of universal jurisdiction which is recognized in many countries, a warrant of arrest can be issued and executed on any ex-dictator. In the case of Former President Augusto Pinochet, it was a Spanish magistrate that ordered his arrest while undergoing medical treatment  in the UK. He was to have been tried for the killing over 3,000 people while he was a military ruler in Chile. In the same vein, the arrest of ex-President Hasne Habre was ordered by a Court in Belgium. When the African leaders could not shield President Habre from prosecution the African Union asked Senegal to try him for the disappearance of over 4,000 people when he was the military head of state of Chad.
President George Bush cannot be tried by the ICC because the United States government refused to ratify the Rome Statute. But unlike ex-President Clinton, Mr. Bush cannot travel to many countries for fear of possible arrest and prosecution for the atrocities perpetrated by him in Iraq and Afghanistan. Ditto for Tony Blair.  So, no dictator is immune from prosecution.

What’s your take on plea bargaining. Does it not encourage potential criminals/ looters to steal big — as a way of qualifying for that “special treatment”
A former chief justice, the Honourable Justice Dahiru Musdapher, described plea bargain as a concept of dubious origin. With respect, I disagree with his lordship’s position. Plea bargain is captured in Section 14 of the EFCC Act. Plea bargain is usually resorted to when a criminal suspect decides to plead guilty to a lesser offence or charge in a way that a full-scale trial is dispensed with. When a suspect does not waste the time of the court and the resources of the State, the trial judge will normally take that into consideration in imposing a sentence after conviction. It is the practice in all common law countries.
The convictions of ex-IGP Tafa Balogun, ex-governor DSP Alamieyeseigha, ex-governor Lucky Igbinedion, ex-MD of Oceanic Bank, Mrs Cecilia Ibru and other VIPs were secured through plea bargain. What is unacceptable is the practice of limiting it to cases of politically exposed persons and the sentence of ridiculously low fines imposed on convicts — like  they are given a pat on the back. That was why Nigerians cried out when Mr. John Yakubu Yusuf who was convicted of Police pension fraud (of about N32billion) was fined N750,000 or 6 months imprisonment. He brought out his cheque book and paid the money in the court premises. Since properties and money forfeited by him were valued at just over N1 billion, the sentence was not commensurate with the severity of the offence. But in the case of the Banco Bank of Brazil that was duped of $250million through advance free fraud the trial judge, Justice Olubunmi Oyewole, sentenced the convicts to five years imprisonment and ordered the forfeiture of all the proceeds of crime traceable to them. So, it is the abuse of plea bargain that should be stopped. In any case, Section 270 of the Administration of Criminal Justice Act has incorporated the concept and set out the conditions under which it can be applied in a criminal trial.
What exactly is the primary duty of the lawyer — to ensure the cause of justice is served OR to ensure the most favourable judgement for his client?
According to the late Justice Chukwudifu Oputa, justice in a criminal case of murder is a three-way traffic, i.e justice for the accused person, justice for the deceased who is crying for vengeance and justice for the society whose moral ethos has been assaulted as a result of the heinous crime. In a class society, rich criminal suspects have access to the best lawyers who can manipulate the loopholes in the system to get them out of trouble. But a poor person has no means to secure the services of lawyers. As lawyers are now required to render pro bono services, they should not reject the briefs of poor people on the ground of impecuniosity. However, as a minister in the temple of justice, the duty of a lawyer is to balance the competing interests. If a client’s case is bad, the lawyer must be honest and say so. While a lawyer tries to secure judgment for a client, it must be done in the best tradition of the bar without sacrificing the cause of justice.

How do we stem electoral offences? Offenders seem to be getting more brazen.
Section 150 of the Electoral Act empowers the EFCC to prosecute electoral offenders. Although the Independent National Electoral Commision, INEC, has prosecuted a few electoral offenders, the impact has not been felt because the number of persons convicted for electoral malfeasance under the current political dispensation is rather negligible. The election petition tribunals and the courts have failed to discharge the duty imposed on them by law to recommend the trial of electoral offenders. It is common knowledge that candidates who are indicted by the election petition tribunals for rigging elections are allowed to take part in rerun elections instead of banning them from further soiling the electoral process. On a number of occasions, state attorneys-general have filed nolle prosequi to terminate cases of election malpractice involving members of the ruling parties.  It was on account of such official connivance that the Justice Mohammed Uwais Electoral Committee recommended the establishment of an electoral offences tribunal. This was also recommended by the Sheik Ahmed Lemu presidential panel on electoral violence in the northern states and Akwa Ibom State. The recommendation was accepted by the Goodluck Jonathan Administration which directed the federal attorney-general to put the engine in motion for setting up the tribunal. But the directive was not carried out. Since the Buhari Administration has undertaken to end impunity in the electoral process, it should not hesitate to set up the tribunal.     Indeed, the special court being suggested to try corruption cases and other financial crimes may also be given the mandate to deal with electoral offences. Unless electoral offenders and their sponsors are severely sanctioned, the electoral process will continue to be polluted by criminally minded anti-democratic forces.

How would you rate the Buhari Govt on compliance with the rule of law so far?
The question is loaded as ‘rule of law’ is a controversial concept. Karl Marx once said that the ideas of the ruling class are the prevailing ideas in any historical epoch. The rule of law in any class society means the rule of law made by the ruling class. In Nigeria, petite bourgeois public commentators wax so eloquent about rule of law when members of the ruling class are occasionally rough-handled by any of the security agencies.  The fact that the fundamental rights of the majority of poor people are violated by the security agencies on a daily basis is irrelevant to the media and many public commentators on account of class bias. Can you imagine the recent hue and cry over the hand-cuffing of a big man in a country where lowly placed criminal suspects are regularly hand-cuffed and leg-chained? No doubt, the state security service has refused to obey the court order admitting a former NSA, Col. Sambo Dasuki, to bail on the ground that he has committed other offences.  Ideally, he ought to have been released before re-arresting him for the other offences. As far as I am concerned, you cannot use the case of Col. Dasuki to measure the commitment of the government to the rule of law. If the lawyers of Dasuki have evidence that the order has been willfully disobeyed, they should embark on contempt proceedings. In the case of Nnamdi Kanu, the federal high court has ordered his detention upon the refusal of his bail application. Notwithstanding the gravity of the offences committed by the several persons accused of criminal diversion of public funds, the Buhari administration has operated within the ambit of the law. The suspects are given the opportunity to challenge the allegations against them. Cases which have been investigated are speedily charged to court while the courts have taken up the challenge of ensuring that the matters are expeditiously tried in line with the tenets of the rule of law.

Is it true, as some claim, that things have been so “schemed” that no southerner will get to be Chief Justice of Nigeria for more years to come?
No, the claim is not correct. It is not a scheme of some northern power mongers. On the contrary, through selfishness, some persons ensured that the slots of southerners in the apex court are filled by very old judges. We had situations in the past whereby chief judges from the South who had a few months to retire as judicial officers influenced their appointment as Supreme Court justices while young judges from the North were appointed to the court. Logically, the young justices stay longer with prospects of rising to the apogee of their professional carrier. But over the years, all zones have learnt to send young justices of the court of appeal to the Supreme Court.
Hence, the Honourable Justice Walter Onnoghen, a southerner, is going to be the next Chief Justice of Nigeria Deo volente.

What reforms would you like to see in the country’s justice system?
The law school curriculum requires a radical review. Law has to be taught in a way that students are made to understand its class character. Terms like ‘equality before the law’, ‘rule of law’ are myths which have to be explained to law students in a honest manner. Human rights should be explained as products of the collective struggle of oppressed people all over the world and not as inalienable and universal phenomena. In particular, Nigerian law students should be made to know that the human rights of the African people were abused during the slave trade which lasted for 400 years and colonialism of a century. It should no longer be said that English law was received by our forefathers, it was imposed on our forefathers by force. Having been made to understand the class character of law, students should appreciate that upon becoming lawyers they have a commitment to render services to the poor and downtrodden people in the society.

With proper grounding, newly qualified lawyers will leave the law school with a commitment to practicing law as “social engineers” in the words of the late Justice Teslim Elias.
Since judges are appointed from the bar, the Nigerian Bar Association, NBA, should recommend its members who want to go to the bench. Upon appointment, the NBA should monitor the performance of judges instead of leaving such evaluation to the National Judicial Council alone. The independence of the judiciary, including financial autonomy guaranteed by the Constitution, should be respected by the Executive arm of government. Court rooms and libraries should be built in all the states of the federation. More specialized courts should handle certain matters.
Our justice system has been taken over by rules of procedure and technicalities at the expense of Justice. Why should judges nullify court processes because they were not properly signed by lawyers? Why should originating processes be set aside because they were not properly endorsed by lawyers?  Why should genuine documents be rejected in evidence because they have not come from proper custody? Why should we waste so much time and energy on frivolous objections in the course of trials? The Administration of Criminal Justice Act 2015 has modernized and humanised the criminal justice system. It has taken away criminal trials from the grip of highly-placed criminal suspects and their lawyers.    By banning stay of proceedings and other dilatory procedures, the law has paved way for expeditious trials. Being a federal law, it is not applicable in the states which have not adopted it. Because it is a progressive law, it ought to be of general application throughout the country. Another area of concern is the abuse of the arbitration law.
The inclusion of arbitration clauses in commercial agreements is designed to ensure that disputes are expeditiously resolved outside courts. But in a situation where every award made by arbitrators is fought up to the Supreme Court for over 20 years, the purpose of arbitration is completely defeated. I have therefore suggested that appeal chambers of arbitration centres be established to deal with appeals arising from arbitral awards.

 

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