INSECURITY: URGENT NEED TO SEPARATE INVESTIGATIVE AND PROSECUTORIAL FUNCTIONS

INSECURITY: URGENT NEED TO SEPARATE INVESTIGATIVE AND PROSECUTORIAL FUNCTIONS

It is evident that the spate of insecurity has worsened over the past couple of months. Despite efforts of law enforcement agencies, kidnapping is still almost a daily occurrence. Just a few days ago, travellers were reported abducted on their way to Abuja. Kidnappers along the Abuja-Kaduna highway seem to have reorganised after a period of inactivity. It took the killing of a daughter of prominent Yoruba leader for law enforcement agencies to pay close attention to the activities of kidnappers along the Ijebu Ode-Ore-Benin- express road. In Abuja, the Police are trying their best to assure residents of their safety despite reports of a surge in robbery and kidnapping incidents. In Rivers State, a serial killer left a trail of bodies before he was finally apprehended. In response to the cry of Nigerians, the House of Representatives summoned the heads of the security agencies including the armed forces.

Without a doubt so much more can be done to nip crime in the bud and arrest criminals. However, the rising spate of insecurity also brings into focus, the role of the criminal justice system in ensuring not only that criminals are arrested, but that they are arraigned and effectively prosecuted. It appears that this is an area that many Nigerians are still unsatisfied with. Many are disenchanted with a system that appears to take forever to make criminals account for their crimes. Instance abound where persons who were even paraded on national television as having committed crimes have been released from custody following dismissal of charges against them. This is particularly true of financial crimes and other corruption related cases, which have been the the focus of the current administration in its fight against corruption as a whole. Many reasons including insufficient investigations and shoddy prosecutions have been adduced for this. Beyond these however are several other factors, the most prominent of which, in my view, is the fusion, in Nigeria, of investigative and prosecutorial powers in law enforcement agencies.

SEPARATION OF INVESTIGATIVE AND PROSECUTORIAL FUNCTIONS

In Nigeria, the Economics and Financial Crimes Commission (EFCC), its sister agency, the Independent Corrupt practices Commission (ICPC) and the Nigerian Police Force are at the forefront of prosecution of criminal offences. 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. In a similar manner, Section 6(a) of the Corrupt Practices and other related offences Act 2000 also confers investigative and prosecutorial powers on the ICPC:

The effect 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 likelihood 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 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.”

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.

As noted earlier, such a separation of the investigative and prosecutorial functions of the EFCC, ICPC, the Police and other law enforcement will ensure that the investigator does not lose objectivity in assessing cases before charging suspects to court. In addition, the following has also been acknowledged as advantages for such a separation.

a. 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.

b. 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.

c. 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.

Aare Afe Babalola, OFR, CON, SAN, LL.D