Last Wednesday, a self-acclaimed pension fund thief, Mr. Yakubu Yusuf was grandly ushered into the infamous Country Club of Corruption. This time around, a Nigerian court was the usher! In a bizarre judgment totally bereft of shame, logic and good conscience, a man who pleaded guilty to stealing a whopping N23 Billion Naira ($203 million) was given a two year prison sentence, with an option to pay a N750,000 ( $1,500) fine in lieu of the sentence. So brazenly, Justice Talba Abubakar Mahmud of the High Court of the Federal Capital Territory, Abuja spewed out a shiny incentive to loot, and loot, and loot according to one’s power and official might. So cruelly disgorged into the nation’s judicial annals is a precedent legitimizing the rape of public treasury provided the lootee is willing to pay a tiny tithe offering – called “fine” – to evade punishment!
Unsurprisingly, unprecedented outrage greeted the ruling. With one voice, Nigerians chorused their rejection of this barefaced descent into anarchy. From the Nigerian Bar Association (NBA) to the National Association of Nigerian Students (NANS), the civil society, the local media, up to the National Assembly, including even the veteran heavy-weight champions in political thievery and lootology have all shaken their heads in disgust. For once, commentators on Nigeria’s heavily polarized social media spaces agree on one issue: This judgment MUST NOT stand!
In a hurried after-thought venture to save itself from the shame of a dishonorable act it deliberately and masterfully engineered, the Economic and Financial Crimes Commission (EFFC) promptly re-arrested the freed pension thief, and pressed even more ridiculous charges brought under an obsolete penal code. To make matters worse, both amateur and expert legal analysts are reeling out inane conjectures in defense of an inherently bad judgment and poor discretion. Their goal is to shift the blame away from the judge to the weak penalties stipulated under the penal code, arguing that a judge cannot exceed the maximum sentence set down by the law. Really?
First off, in passing sentences under criminal statutes that provide a maximum or minimum penalty with an option of fine, or both, a court has the inherent jurisdictional powers to impose a sentence not exceeding the prescribed limit, with or without the fine option. In exercising that discretion, nothing estops the judge from imposing the maximum sentence and withholding the offer to pay fine, consistent with the gravity of the case at hand, in the interest of justice. For justice to be manifestly and undoubtedly seen to be done, the judge must act in good faith, using the law as an instrument (of justice), to protect the society from harm, especially the marginalized and downtrodden sections of society. An extremely lenient sentence to a public officer who admitted to conniving with others to rob poor dying pensioners of their entitlements, including thousands that have already died in penury, clearly contrasts with the principles of natural justice, equity and good conscience. The absurdity of this judgment fuels suggestions that the decision was influenced by extraneous considerations and other untoward inducements.
There are ample reasons to believe that the outrage that greeted the pension thief decision would have been different if the option to pay a N750,000 fine had been withheld. In a similar case of misdemeanor involving Bode George, the EFCC characteristically slammed contract-splitting charges against him, punishable with two years imprisonment with an option of fine or both. Having carefully considered the evidence brought before him against the weight of the charges, Justice Joseph Olubunmi Oyewole of the High Court of Lagos State, rightly exercised his judicial discretion by imposing the maximum sentence without an option of fine. For the first time ever, a Nigerian judge stood firm against the powers and principalities of corruption, in the interest of furthering the administration of justice. That celebrated decision was upheld even up to the Supreme Court, basically on the premise of upholding respect for the degree of flexibility of judicial discretion, and with the objective of fostering public confidence in the integrity of the court system.
The gravity of the offence is most stark in this pension case because of the offender’s admission of guilt. The accused pleaded guilty to the charges and forfeited over 25 properties valued at N325 million. Why would Justice Talba snub a strong precedent laid down by Justice Oyewole in Bode George’s case, which in my view is a glaring debasement of the concept of stare decisis. Disregarding a well-founded precedent without declaring such precedent mistaken is equally indecorous, as it causes even greater confusion for both scholars and spectators seeking an understanding of the intricacies and nuances of the justice system.
Again, there is no principle of law or statutory prescription requiring that sentences in multiple criminal counts MUST run concurrently. In other words, assuming the penalties stipulated by the penal code were too lenient, too outdated and too indulgent, there was nothing – no legal principle, no statutory directive – precluding the judge from sanctioning the pension thief’s jail terms for the three counts to run consecutively. A conscientious judge determined to support the country’s anti-graft war would use his discretion to pass stiffer sentences in order to deter future violations. By allowing the sentences for the various admitted crimes to run concurrently, Justice Talba Abubakar took leniency to abhorrent heights. As if that was not enough, the option to pay a fine of N750,000 fine further smacks of scant regard for the weight of the offence, and a brazen disdain for the war against corruption.
This is not the first time popular opinion has differed from a judicial verdict and obviously, this case won’t be the last. This latest decision adds to the list of slap-on-the-wrist judgments handed down by Nigerian courts in high-profile corruption cases. We have seen a perpetual injunction prohibiting further judicial scrutiny of the missing billions of Naira that disappeared from the Rivers State treasury under ex-governor Peter Odili’s watch. Another steal-big-and-go-free judgment convicted Lucky Igbinedion for corruption, but yet, imposed a peck-on-the-cheek fine option in lieu of imprisonment. James Ibori was found guilty and jailed by a Southwark Crown Court in London months after a Nigerian court had issued a not-guilty verdict.
That such ridiculous go-and-sin-more rulings were handed down by Nigerian judges in the same country where four students of the University of Port Harcourt were roasted alive for allegedly stealing blackberry phones and laptops makes total mockery of the rule of law and justice delivery. If the public can’t see justice being done, then the entire legal system becomes little more than a cozy club that easily provides an easy escape route for pen robbers, big thieves and their lackeys from the web of justice, leaving only the poor and hungry to get entangled in its farcical might.
Just as this case has jolted the Nigerian parliament from complacency towards considering an amendment of the penal code provisions, the Nigerian judiciary also needs to address concerns about having sentencing guidelines for judges. This may go some way in helping judges to encourage discretionary propriety through supervisory rules, as well as answering outstanding questions of balancing the advancement of social goals against obsolete legislative instruments. Aside from yet again undermining public confidence in the EFCC, this case has highlighted quite clearly how an improper exercise of judicial discretion in criminal adjudication as well as how recurrent judicial blunders can shake citizens’ faith in the justice system. As the popular legal maxim goes, it is not enough for justice to be done, it has to be seen to be done. This judgment MUST NOT stand!