Need to separate investigative and prosecutorial functions

President Buhari’s call for effective prosecution of corruption cases: Need to separate investigative and prosecutorial functions

By Afe Babalola

RECENTLY the prosecution of some corruption cases suffered setbacks with the discharge or acquittal of the accused persons. This development has attracted comments and criticism from various quarters. Osinbajo, Magu, Daura and Idris While opinion is obviously divided on the correctness of the specific judicial verdicts, there appears to be a consensus of sorts on the need for improvement in the prosecution of criminal cases by Law enforcement agencies. Indeed the President is reported to have directed the Vice President to impress upon all agencies concerned a need to improve their prosecutorial capabilities. The Vice President in turn called a meeting attended by the National Security Adviser, Babagana Monguno; Attorney General of the Federation, Abubakar Malami (SAN); Director General of the Department of State Services, Lawal Daura; the Inspector General of Police, Ibrahim Idris; acting Chairman of the Economic and Financial Crimes Commission, Ibrahim Magu; and the Chairman of the Independent Corrupt Practices and Other Related Offences Commission, Ekpo Nta where the matter was reported to have been extensively discussed. Inter agency  cooperation Many reasons have been given for the poor showing of the prosecution in several high profile cases. While a prominent Legal Practitioner identified official negligence and lack of inter agency cooperation by the federal ministry of justice, the anti-graft agencies and the State Security Service as a cause, a former President, Chief Olusegun Obasanjo blamed the development on the failure of the EFCC and other agencies to hire seasoned lawyers to handle the prosecution of their cases. Without a doubt these are strong arguments. However in my view there is a fundamental problem underlying the poor results being experienced by law enforcement agencies in the sphere of prosecution and this simply is the fusion of investigative and prosecutorial powers. Seperation of investigative and prosecutorial functions Section 12 of the EFCC Act Cap E1 provides for the establishment of special units of the Commission including the Legal and Prosecution Unit. By virtue of Section 13(2), the said Legal and Prosecution Unit is saddled with the power of prosecution of offenders under the Act. For the avoidance of doubt the Section reads as follows: “(2)      The Legal and Prosecution Unit shall be charged with the responsibility for – Prosecuting offenders under this Act; xxxxxxxxx xxxxxxxxx xxxxxxxxx In a similar manner, Section 6(a) of the Corrupt Practices and other related offences Act 2000 in the following words also confers investigative and prosecutorial powers on the ICPC: “6. It shall be the duty of the Commission – 1.Where reasonable grounds exist for suspecting that any person has conspired to commit or has attempted to commit or has committed an offence under this Act or any other law prohibiting corruption, to receive and investigate any report of the conspiracy to commit, attempt to commit or the commission of such offence and, in appropriate cases, to prosecute the offenders; The effect of the above is that both the ICPC and the EFCC have powers not only to investigate but also to prosecute. However, it is a well-documented fact that the powers of investigation and prosecution do not always go well together. Where an investigator is also expected to prosecute, there is a danger that he may not be objective in his investigation and that his eventual decision to prosecute may not be the product of a well thought out process. The need to appear to be working and thereby prosecute at all costs may outweigh considerations such as the adequacy of investigations and evidence garnered against a suspect. In recent times, the EFCC in particular has been criticised for its seeming hurry to announce the discovery of huge amounts of cash without proper investigation as to the identity of those who hid the cash where they were found. Critics argue that the EFCC should have continued a surveillance of the site and wait for anyone either bringing more money to the location or attempting to move the money. It has therefore been argued that pressure on the EFCC to deliver on the anti corruption drive of the government may actually be leading it to making critical mistakes thereby jeopardising the chances of effective prosecutions. It was considerations such as the above that led to the establishment of the Crown Prosecution Service in England. In 1978, faced with problems not too dissimilar from those being encountered by Nigeria at the moment, a Royal Commission of Criminal Procedure was set up in England. The reports of the Commission published in 1981 came up with three main criticisms of the system at that time. These were: 1.The Police should not investigate offences and decide whether to prosecute. The officer who investigated the case could not be relied on to make a fair decision whether to prosecute. 2.Different police forces around the country used different standards to decide whether to prosecute. 3.The Police were allowing too many weak cases to come to court. This led to a high percentage of Judge directed acquittals. Explaining the rationale behind the findings of the Commission, Dr. Destina Kyprianou in an article titled ‘Comparative Analysis of Prosecution System (Part II): The Role of Prosecution Services in Investigation and Prosecution Principles and Polices” stated as follows: “The maintenance of an investigator-prosecutor divide was central to the report which led to the establishment of the Crown Prosecution Service…The investigator-prosecutor divide was premised on the belief that if the prosecutor becomes involved in the investigation of a case, then the prosecutor may become committed to a particular line of inquiry and loose objectivity in assessing that case.” I believe the criticism made by the Royal Commission in England are also applicable to Nigeria. Whilst Nigeria has one Police force in theory, the reality of the matter is that the functions of that Force have been greatly eroded by several law enforcement agencies such as the EFCC, ICPC, NDLEA, FRSC to name a few. Therefore, the situation of different police forces using different standards to prosecute is also now applicable to Nigeria. By fusing investigative and prosecutorial powers in the EFCC and the ICPC, the lawmaker has in my view placed an unnecessary burden on both bodies. In stating this I am not unmindful of the fact that by the provisions of Section 12(1)(a) of the EFCC Act that the General and Assets Investigation Unit is also created separate from the Legal and Prosecution Unit. However, by the general provisions of the Act, both units are still under the Commission and are subject to the control and direction of the Chairman of the Commission. I believe a system in which the law enforcement agencies are limited to investigative duties will greatly aid the performance of their roles in the criminal justice system. A system can be developed in which they will seek guidance from the office of the public prosecutor at any stage of the investigation where such advice or guidance is needed. This is particularly more so in modern times where the commission of such crimes as money laundering have gained much sophistication as to require legal advice in the investigation of persons suspected to have committed them. This explains why the Federal Bureau of Investigations (FBI) in the United States of America does not prosecute persons suspected to have committed crimes. A statement on its website reads as follows: Although the FBI is responsible for investigating possible violations of federal law, the FBI does not give an opinion or decide if an individual will be prosecuted. The federal prosecutors employed by the Department of Justice or the U.S. Attorneys offices are responsible for making this decision and for conducting the prosecution of the case. If a possible violation of federal law under the jurisdiction of the FBI has occurred, the Bureau will conduct an investigation. The information and evidence gathered in the course of that investigation are then presented to the appropriate U.S. Attorney or Department of Justice official, who will determine whether or not prosecution or further action is warranted. Depending on the outcome of the investigation, evidence is either returned or retained for court.” I believe that Nigeria can adopt a similar system. To make it effective, the government can increase the offices of the Federal Directorate of Public Prosecution to cover existing police and law enforcement boundaries as exist in Nigeria at the moment. In addition to the efficiency which this would bring to the investigative duties of agencies such as EFCC and ICPC, it will also create more job opportunities for Nigerians. Furthermore a separation of functions 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. 1.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. 2.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. 3.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.