JUSTICE: LOSS OF PUBLIC CONFIDENCE- SEPARATION OF INVESTIGATIVE AND PROSECUTORIAL FUNCTIONS (6)
“Both the ICPC and the EFCC have powers not only to investigate but also to prosecute.
…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 have in the last five articles of this series identified reasons why lawyers and judges should not take the blame alone in what many see as the slow pace of justice delivery particularly in relation to criminal cases in Nigeria.
This week I intend to identify steps which can be taken by government to improve justice delivery rather blaming lawyers and the judiciary alone.
SEPERATION OF INVESTIGATIVE AND PROSECUTORIAL FUNCTIONS
The first problem which I have identified is in the fusion of investigative and prosecutorial powers in both the EFCC and the Independent Corrupt Practices Commission (ICPC). 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 said Section reads as follows:
“(2) The Legal and Prosecution Unit shall be charged with the responsibility for –
(a) Prosecuting offenders under this Act;
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 –
(a) 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. It was this very consideration 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:
(i) 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.
(ii) Different police forces around the country used different standards to decide whether to prosecute.
(iii) 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 crimesas money laundering havegained 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.
Next week I will discuss more measures that can be adopted including the establishment of a dedicated body of Public Prosecutors.
To be continued…
Aare Afe Babalola, OFR, CON, SAN, LL.D