Mr Inibehe Effiong is a legal practitioner, an advocate of the masses and Convener of the Coalition of Human Rights Defenders (COHRD). He was granted interview on Tuesday June 7, 2016 by a private radio station, Blaze 91.5 FM on the legal implications of publishing names of looters by President Muhammadu Buhari’s administration. We present the excerpts from the interview session.
There is this debate on whether the Federal Government was right not to have disclose the identity of the looters, what is your take on this?
The issue is very simple. The President himself had promised that the names of those that funds have been recovered from will be published and that the amount that the federal government has recovered so far will also be made public. However, it appears that some forces may have prevailed on the President to renege on that promise. There are two sides to the argument, the first is that the government will prejudice investigation if names are published and that this may also discourage others who may want to voluntarily surrender funds and assets they acquired illicitly to the government and make them to be more reluctant. The Nigerian political class, the persons who are involved would not love to have their names in the media. But the other argument is that this government is founded on a promise of accountability and fighting of corruption and that it will be in the best interest of the country if the names are made public because these funds were actually recovered from human beings and not from ghosts, hence, it is important for the public to know who surrendered what?. That is basically what the arguments are and I favour the latter. I favour the argument that the Federal government should publish the names.
Are you aware of any legal implication that may arise from publishing the names?
There is no legal constraint. Some lawyers are of the opinion that only a court can convict, there is no dispute about that. Section 36 (5) of the Nigerian Constitution guarantees presumption of innocence and states that every person is presumed innocent until proved guilty, that is true, but the issue is not about conviction because no one is being convicted by the federal government, only a court of competent jurisdiction can convict. What I am saying in essence is that if some persons have willingly surrendered funds which they acquired unlawfully to the government coffers, their names should be made public. There is no inhibition, there is law restraining the government from doing that. It is not an infringement on the right to presumption of innocence because they are not being convicted or sent to prison. Even if the government decides to press charges in court, of course the names will still be made public. So eventually the names will be made public. Perhaps it is just a question of time.
You know in our society, we have this way of classifying people as very corrupt once their names are associated with anything that has to do with crime. So what if they are not found guilty eventually?
I agree with you but the big question is: how did you make the money? If the issue is about the source of the money, the public deserves to know who surrendered what, that is the point. What the government is doing is not even plea bargain because for there to be a plea bargain, a charge must have been preferred or an information must have been filed and someone must have been formally arraigned and a plea taken, that is when you can talk about plea bargain under Section 270 of the Administration of Criminal Justice Act 2015. Plea bargain must be after charges have been filed and that can only be a question of mitigation of sentence. So to my mind, what the government is doing is not plea bargain. If these funds are being recovered as exhibits or evidence preparatory to arraignment, why shouldn’t the government release the names? If there is an agreement with the government to the effect that if you return this money, we are not going to charge you, the public deserves to know, so which ever way you look at it, the names have to be made public. There is no way the government will not disclose the names, the money recovered came from sources.
Is it the duty of the state to find someone guilty or that of the court of law?
The issue is not about guilt. If a suspect is arrested, investigation will take place. It is after investigation that the prosecution or the government will consider the weight of the evidence and then determine whether there is basis to press charges or not. It is for the court to determine if the offence is proved beyond reasonable doubt. It is only the court that can convict, it is only the court that can make a finding of guilt or otherwise.
Can publishing the names expose the government to litigation?
(Cuts in) What litigation? What litigation? What some people are saying is that someone can go to court and sue the government for defamation of character. Certainly not. The government can raise the defense of justification and fair comment. If the publication is true, then there is no defamation. There is no litigation that can arise from that because they willingly surrendered these funds, the government has not lied. Hence, there is nothing defamatory. It can only be defamatory if what the government is saying is false. For instance, if the federal government says Inibehe Effiong surrendered 300 million from the money he looted from the Nigerian state, and it is false, then I can sue the government, litigation can arise, but if it is true that Inibehe actually surrendered that sum, then there is no cause of action. There is nothing defamatory. The only argument that seems persuasive is that if the government goes ahead to release these names now, other persons who have stolen from the Nigerian people may be discouraged from returning the funds. But this is also a question of consequence because the government is determined to recover these funds and if the government have to go the whole hog by pressing charges, the court can equally order a refund even after conviction. The law allows it.
How would you like the government to handle these looters, for those who voluntarily surrendered the looted funds would you like the government to still prosecute them?
Definitely. While we are interested in having the money back, there has to be deterrence. As I have said, the law recognises what we call plea bargain under Section 270 of the Administration of Criminal Justice Acts (ACJA). This can only take place when the prosecution has commenced his case after arraignment. This means that these persons who are being tried for corruption, they can have a discussion with the prosecutor saying that they are going to plead guilty for particular count (s), then the sentence can be looked into. That can mean lesser sentence. But for you to say that you are not going to charge them, there is no way because these monies were stolen, except there is no evidence. That is another consideration. If there is no evidence to arraign them the government might not consider that option. If there is no evidence that the funds were stolen, the government can just recover the funds, but if there is evidence that these monies were stolen, why not? They have to be arraigned.
So there is a possibility that the cases might be treated differently, while those who surrendered willingly may be treated with kid gloves, those who were forced to do so may be given a tougher treatment?
Obviously that is what we are seeing, like in the case of the immediate past National Publicity Secretary of PDP, Olisa Metuh, where he had hesitated. He had bluffed the efforts of the government for him to make refund at the initial stage, perhaps he had refused to disclose the people he shared the money with, about 400 million, of course the government went ahead to press charges. On the other hand, we have also seen cases of people who willingly surrendered money like Raymond Dokpesi and others and the government has not charged them. There is what we call prosecutorial discretion in law, this is the right of the prosecutor to determine who to charge and who not to charge, the Attorney General of the Federation under Section 174 of the Constitution has that right. He has the power under the law to say I am going to charge or I am not going to charge. It is for the government to determine, but what is important is that these monies have to be recovered and there have to be clear deterrence, so that someone will not steal in the future believing that he can always return the money if caught.