Jurisprudential Conundrum

Economic and Financial Crimes Commission

Economic and Financial Crimes Commission (Photo credit: Wikipedia)

Jurisprudence is probably the most important subject of study for would-be lawyers and anyone trying to understand how legal systems work. Jurisprudence provides the “back-story”, if you will, to why we have the laws and legal principles we have today. Theories of state and government have led to laws guaranteeing the separation of powers of government, as well as representation in government by virtue of a people’s assembly. Similarly, the evolution of thought over time on what constitutes justice has also impacted on how different societies punish crime differently. This is why, for instance, amputation as a punishment for stealing and execution for murder are acceptable in some countries and not in others.

Our legal system, including our criminal jurisprudence, like most countries in the Commonwealth, was handed down to us by the British while Nigeria was a colony. This system of law is generally referred to as “Common Law” and countries that practice it are referred to as Common Law jurisdictions. Now, for most CLJs, crimes are punished to achieve the following purposes:

  • Retribution – that punishment must be the convict’s “just desserts” for committing a crime. In other words, the punishment meted out to the convict should be commensurate with the offence committed.
  • Deterrence – that punishment should discourage the convict from repeating the offence, and also serve as a disincentive to the community at large
  • Rehabilitation – that a component of punishment should be attempting to give the convict a different philosophy to life, such that he does not even want to commit the offence again.
  • Incapacitation – that, in appropriate cases, offenders who are too dangerous be removed from society, ostensibly to the benefit of the society.

According to the Judicial Commission of New South Wales (Australia is a member of the Commonwealth), the following are the reasons for which a court may impose a sentence on an offender:

  1. to ensure that the offender is adequately punished for the offence,
  2. to prevent crime by deterring the offender and other persons from committing similar offences,
  3. to protect the community from the offender,
  4. to promote the rehabilitation of the offender,
  5. to make the offender accountable for his or her actions,
  6. to denounce the conduct of the offender,
  7. to recognise the harm done to the victim of the crime and to the community.

(See here and here for enlightening discussions on justifications for punishment).

In its Strategic Plan for 2008-2011, the UK’s Office for Criminal Justice reform said

The fundamental test of any justice system is its effectiveness in bringing offences to justice. This means that the prosecution is well-managed, the guilty convicted and the innocent freed in a way that meets the needs of victims and treats all sections of the community fairly…It means criminal justice helping to deter crime because offenders know that be caught and punished and ensuring that, when caught, they do not reoffend…The public needs confidence that offenders are being punished and that crime does not pay.”

This background is necessary for a fuller understanding of what happened yesterday, in the prosecution of one Mr. John Yakubu Yusufu (formerly (??) of the Police Pensions Office), for his role in the theft of N39bn of Police Pension Funds. Yusufu, in court before Justice Abubakar Talba yesterday, admitted his role in the theft of roughly N23bn of the stolen funds, in connivance with others. He was charged under section 308 of the Penal Code (of 1959) and was sentenced under section 309 of the same law. Consequent to his admission of guilt on 3 counts and allocutus on his behalf by his lawyer, Justice Talba sentenced Yusufu to 2 years imprisonment on each count (to run concurrently, ie cumulatively, only two years) with an option of a N250,000 fine on each count, forfeiture of 13 houses and the sum of N325m. Public indignation at the proceedings has been torrid.

Section 308 of the Penal Code says “Whoever dishonestly misappropriates or converts to his own use any moveable property, commits criminal misappropriation.” Section 309 says “Whoever commits criminal misappropriation shall be punished with imprisonment for a term which may extend to two years or with a fine or both.” Thus, while a 2-year sentence on each count is what the law prescribes, the use of the judge’s discretion to rule that the sentences run concurrently and then give Yusufu the option of a fine is probably what has confounded most observers.

If we look again at the purposes or justification for sentencing, it would be extremely hard to say that Yusufu was adequately punished or that his punishment will serve as a deterrent to other public servants. Rotimi Jacobs (SAN), the EFCC’s counsel is reported to have complained to Justice Abubakar Talba that the sentence makes a mockery of the EFCC and the Federal Government’s fight against corruption.

I am not sure the EFCC is without blame, however. A cursory glance through the same Penal Code also contains Criminal Breach of Trust offences. Section 311 says “Whoever, being in any manner entrusted with property or with any dominion over property, dishonestly misappropriates or converts that property to his own use or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits criminal breach of trust.Section 312 says “Whoever commits criminal breach of trust shall be punished with imprisonment for a term which may extend to seven years or with fine or with both.

Of even greater relevance is section 315, which says “Whoever, being in any manner entrusted with property or with any dominion over property in his capacity as a public servant or in the way of his business as a banker, factor, broker, legal practitioner or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for a term which may extend to fourteen years and shall also be liable to a fine.

Unless my understanding is wrong and a pension fund accountant is not one “entrusted with” the funds, I am at a loss as to why conviction was not sought additionally under these sections.

Perhaps a final mention should be given to Yusufu’s allocutus (his plea for leniency after his admission of guit). I am reproducing it, as reported by PMNews, in full –

Yusufu’s lawyer, Mr. Maiyaki Theodore Bala, in his submission after his client pleaded guilty, told the court that the conduct of his client had demonstrated remorse to the court and to Nigeria as a nation for breaching its laws.

 

According to him, ”By pleading guilty, the convict has shown respect to this court and have saved precious time of the court. The court will also find that he is a first time offender without any previous record of conviction, furthermore, he is the head of a family of four, a wife and 3 children, two of who are university students while one is a primary school pupil. These people depend on him for their survival and well being, including the payment of school fees. It is also pertinent to note that he has a chronic heart condition which has aggravated to a serious case of high blood pressure, a condition that requires frequent medical attention. His aged parents are still alive and due to old age, have attendant medical complications which require regular medical attention and both depend on him to deal with these.”

 

The lawyer also told the court that Mr. Yusufu had grown to become a community leader with a number of students depending on him for scholarships, these Nigerian children, according to him, will loose (sic) the opportunity if justice is not tempered by mercy.

 

Continuing in his plea for leniency for his client, Maiyaki told the court that going by the application for complete forfeiture of the assets and properties confiscated from his client, that the EFCC had taken everything from his client and he is left with nothing. He urged the court to exercise the discretionary powers granted it under section 309 of the Penal Code in favour of the convict and give him an option of fine so as to serve as incentive to the other accused persons to take the courage of coming forward to admit their guilt where one exists.

Now, while the primary purpose of allocution is to mitigate the sentence for the offence to which one has just pleaded guilty, is its purpose simply to get accused persons the most lenient sentence possible? Surely not. A child kills his parents but begs for mercy because he is now an orphan? Given the tragic history of pensions and pensioners in Nigeria, the unending tales of pensioners fainting (dying, even) on queues to collect their pensions, the anti-corruption rhetoric of the current federal administration and the huge injustice in N35bn of public funds simply vanishing, should any allocution (even if it were from the lips of the late Rotimi Williams himself) absolve any Nigerian pension thief of jail time?

The fight against corruption needs to grow some mean teeth. The prosecution must push for the most severe punishment available and the brotherhood of judges must censure their colleagues who pervert the course of justice. Our criminal laws, especially as they relate to graft in public office, need periodic reviewing. If, truly, the most severe punishment available for stealing public money is a 2-year jail term commutable to a fine of N250,000, do not be surprised if the queue to confess suddenly elongates, with these criminals smiling all the way back to their banks.

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4 thoughts on “Jurisprudential Conundrum

  1. That was nice to read.
    Indeed the anti-corruption fight must grow mean teeth.

    I totally agree that the EFCC deserves a fair share of the blame here. I remember reading that the charges were amended. Charging him under sec.308/309 instead of sec.315 (which is on all fours with this case & attracts stiffer sanction, hints towards plea bargain, as was reported). The EFCC paved the way with their ‘kid glove’ charge.

    As per the judgment itself, everyone wants a jail term, understandably. However, the health condition raised in the allocutus cannot be overlooked, IMO. The criminal justice system is not designed for people to die in jail, especially where needed healthcare cannot be guaranteed.

    Like

  2. Pingback: Abati, Our Sophisticated Ignorance & A Dollop of History | TexTheLaw

  3. This is very interesting. Our curruption laws must step up to meet the contemporary society because the society has gone far from our archiac laws.

    Like

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