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ARE YAR’ARDUA’S GOVERNMENT & OTHERS REALLY SERIOUS ABOUT THE WAR AGAINST ARMED ROBBERY & KIDNAPPING IN NIGERIA ? The Nnewi “Test Case” in Anambra State
By Benjamin Anosike, Ph.D.
 Published
September 23rd, 2009
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Unprecedented, Wide Spread, Incidence of Armed Robbery &
Kidnapping in Parts of Nigeria , one Critical Index of
“failed State” Status of Nigeria .
Nigeria has in recent times been called everything from
a country in “descent into the dark,” to a “country
beset with insecurity across the land,” to a “failed
state.” And worst! Only recently, in its publication of
the Failed State Index of 2009, the Fund for
Peace, the well-respected Washington-based
think-tank one of whose founder is Prof. Susan Rice,
U.S. President Obama’s current Ambassador to the United
States , squarely placed Nigeria as among the 15 most
vulnerable nations on the globe. What is worse, for
Nigeria , this has been the fourth year that the country
had consecutively declined! Further more, a similar
security assessment made by the U.S. Central
Intelligence Agency (CIA) in 2001, had even gone as far
as predicting that the country would cease to exist in
its present form within 15 years.
In the Nigeria context, experts contend that perhaps one
of the most gruesome and crippling indices accounting
for its “failed state” status in most recent times, has
been the unprecedented, wide spread and growing
incidence of mass armed robbery and human kidnapping and
extortion in many states across the nation. Pervasive
armed robbery and kidnapping are especially crippling to
a society, expert assert, because of the special toll
they take on the core psyche of a people, as it is often
tantamount in the minds of the people to the humiliation
of the main symbols and institutions of national
security, the police and the armed forces, and further
underlines how easy it is to terrorize the country.
Consequently, experts say, the widespread occurrence of
armed robbery and kidnapping in the society, such as has
become commonplace lately in many parts of Nigeria, has
the most potential to undermine the peace and security
of the Nigerian people, disrupt economic activities,
paralyze industry and economic development and progress,
and lead to greater unemployment, and in general, to the
immobilization of government and society.
THE CURRENT STATE OF INSECURITY, ARMED ROBBERY &
KIDNAPPING IN EASTERN STATES.
For Nigeria today, armed robbery and extortionist
kidnapping are easily the most serious, Number #1
domestic security problem today for the country. It is a
national problem that is prevalent all across the
country. According to a report released by Ibrahim
Yakubu Lame, the Police Affairs Minister, in July 2009,
Nigeria has recorded a total of
512
kidnappings from January 2008 to June 2009, with 30 of
such persons involved losing their lives in the process.
However, the eastern states top the list of kidnap
incidents. In deed, it is now a common fact acknowledged
by all, that in virtually all the eastern states,
gruesome incidents of mass armed robbery and kidnapping
have become common occurrence. Where the robbers are not
maiming and looting, kidnappers are targeting local
moneybags and unfortunate expatriates like the Chinese
nationals executing building contracts for indigenous
businessmen.
According to the said police report released in July
2009, Abia State tops all states with a total of 110
kidnap incidents, and 3 53
cases and three deaths in 2008. This is followed by
other eastern states: Imo (58
recorded kidnaps, 109 arrests, 41 prosecutions, and 1
killed), Delta (44 kidnappings, 43 released, 27 arrests,
31 prosecutions, 1 killed), Akwa Ibom (40 kidnappings,
40 released, 18 arrests, 11 prosecutions), and Anambra
State .
In response to the massive challenge on security in the
eastern front, for example, many states, ranging from
Abia to Anambra and Enugu , having become greatly
alarmed by the wave of kidnappings, have revamped their
methods and strategies on stemming the menace. They have
convened, at the states’ Government Houses, countless
number of meetings of their security teams (the State
governors, Commissioners of Police, directors of the
State Security Service (SSS), representatives of the
Nigerian Army, Air Force, Security and Defense Corps,
the traditional rulers, etc) on effective measures and
strategies. They have beefed up their funding on
security matters, and provided more equipments, more
communication gear, vehicles, and other tools of
policing, to the state police command. They have even
set up anew, in some states, vigilante groups, or
revamped an existing one or augmented it. And some among
the states have gone as far as passing laws prescribing
the death sentence for offenders caught, prosecuted and
convicted.
THE PIVOTAL ROLE OF THE POLICE & JUDGES, IF ORGANIZED
INSECURITY PROBLEM IS EVER TO BE LICKED. CORRUPTION
WITH POLICE & JUDICIAL AUTHORITIES?
Yet, in spite of all these efforts (and others), the
upward tide of the twin menace of armed robbery and
kidnapping in those states in the country where they’re
endemic, has largely continued unarrested. Clearly, a
crucial curious question is: WHY?
One major school of thought among security experts,
investigators and operatives, lays the problem squarely
at the foot of the corrupt and corrupting role of the
police and the courts and judiciary in the whole
security combating process, and contend that these two
institutions play the key, even determinative, role
under the Nigerian system in how much success is
attained, if any, in combating those violent crimes.
The assertion is often made, for example, by crime
investigators and security experts, that the men and
women of the Nigerian Police, are pathologically corrupt
players, that they are themselves often a “partner in
crime” with the armed robbers and violent criminals, and
often, would either tip off the perpetrating armed
robber or kidnapper in advance of an arrest or police
operation to enable the robber’s escape, or would
release him upon the most dubious of reasons the sooner
he is arrested. A similar portrayal is often made about
the role of the courts and the judges involved in the
handling of armed robbery and kidnapping cases. In terms
of the courts and the judges, many security experts and
investigators contend that, though as a body the
Nigerian judiciary may not nearly be equated at the same
level of corruption as the Nigerian police, the
prevalence of corruption among a handful of unscrupulous
judges in the judiciary constitute a major obstacle to
making any substantial or permanent gains in the war
against the current menace of armed robbery and
kidnapping.
In recent years, for example, the widely respected
German–based anti–corruption watch dog, the Transparency
International, has rated the Nigerian Police force and
the Nigerian judiciary as the number one and number four
most corrupt institutions in the country, respectively.
In deed, even the Chief Justice of Nigeria, Justice
Idris Legbo Kutigi, has expressed some misgivings
concerning the common impression often held that the
Nigerian court system is seriously infested with
corruption. Speaking at the inauguration of new Federal
High Court judges in July 2009, Justice Kutigo asserted:
“I advise you to shun corruption and corrupt practices,
.as judicial officials, you are to live above board like
Ceaser’s wife,” as he threatened henceforth to invite
Nigeria’s anti–corruption agencies to prosecute any
corrupt judges.
THE GRAND DADDY OF KIDNAPPING CASES: THE “INNOSON THREE”
CASE OF NNEWI, ANAMBRA STATE
Perhaps, the critical “litmus test” that will be hugely
determinative of how these two central national
institutions of security, namely, the Police and the
courts and the prosecutors, will perform in the battle
against the national menace of armed robbery and
kidnapping, is likely to be played out in a now famous
kidnapping case that long originated in Nnewi, Anambra
State, and still remains pending today at Awka, its
state capital. Considered by many to be the “grand
daddy” of criminal kidnapping and extortion cases in
Nigeria, for its international angle and its long
duration and the uncommon array of twists and turns it
has gone through in its history, among other factors,
this case, commonly known as the “Innoson three” case,
is best known for being a case involving one Mr. Pius
O. Ogbuawa, a prominent, well connected, super wealthy
Nnewi–based businessman. Mr. Ogbuawa’s involvement in
the case borders on the fact that he has been variously
arrested and released, then re–arrested and released,
going back and forth, since about April 2007 to date ,
upon the serious criminal charge that he had been the
financial mastermind who bankrolled the abduction of two
Chinese industrial experts, one of whom was later to be
found to have died while in the kidnappers’ custody,
and one Nigerian, on the staff of the Innoson Company,
a company owned by an Nnewi industrialist and business
rival – an alleged involvement which has now become
even more pivotal in recent months when, on May 29,
2009, the notorious gang leader of the criminal
kidnapping gang, one Innocent Orji, which had been the
abductors of the Innoson group, was finally captured by
the police, and who then had further implicated Pius
Ogbuawa in the said Innoson kidnap incident.
THE NNEWI CASE, THE TEST CASE OF FUTURE DIRECTION IN
SUCH CASES
Popularly known as the “Innoson three kidnapping”
incident, this case has been tabbed the “test case” that
experts look to as the broad barometric measure of how
the kidnapping cases of the future are likely to fare in
the nation, and with that, the level of national
seriousness and commitment of the Nigerian governments
and law enforcement authorities in combating these most
serious of violent crimes. As one lawyer familiar with
the case put it, “As the Innoson case goes, especially
as it relates to Ogbuawa, so goes, so will go, the
future cases of any kidnapping case that come before the
police and the courts.”
Simply stated, fundamentally, the public worry about
this case centers around the feeling that, but for Mr.
Pius Ogbuawa’s formidable financial fortune, the Innoson
kidnapping case, which has dragged on and on for over 2
years now, with so many odd twists and turns, would have
long been over, with Ogbuawa, many conclude, long put
behind bars as a deserving accomplice in the brutal
kidnap incident. In deed, even worse, that Ogbuawa’s
financial war chest seems ominously poised not only to
keep him out of prosecution and out of prison, but to
free him permanently pretty soon, from any
responsibility whatsoever in the case. At the heart of
concern, is the long history of this case and the “many
strange lives” that the case has lived, in the words of
one newspaper report, much of it said to be essentially
related to the fact that a man bearing the name PUIS
OGBUAWA, is connected with the case. Mr. Ogbuawa, a
flamboyant, mega wealthy Nnewi business man, was first
arrested and held in detention in 2007 by the Nnewi
Police upon a complaint brought by a fellow Nnewi
business magnet, Mr. Innocent Chikwuma, the owner of a
local manufacturing and trading company, Innoson
Technical Co. Ltd, alleging that Puis Ogbuawa had
something to do with the kidnapping of three members of
his staff (two Chinese and one Nigerian) on 17th
of March 2007. Thereupon, the police investigations
turned up Mr. Ogbuawa, who himself had been a previous
recent kidnap victim who reportedly had to pay his
kidnappers some N20 million ransom to be released, as
the man who had maintained close links with a militant
group that abducted the victims. And Ogbuawa was then
immediately arrested and detained.
The fundamental difference, however, has been that,
while most cases like the Ogbuawa case which possess
anything even remotely close to the high level of
evidence that the current Ogbuawa case already has, have
usually breezed through at least the police processing
and judicial prosecution phases of a case, the Ogbuawa
case has, on the other hand, been repeated stalled,
stopped, then restarted, again and again and again, and
thus has been excruciatingly prolonged and dragged out
almost to no end – a situation which, almost all
observers have attributed to the formidable fortune that
the super wealth Nnewi multi–millionaire has deployed in
defense of himself in the case.
First, while being held in detention the first time,
Ogbuawa employed his high prized battery of lawyers to
petition an Nnewi High Court for a declaratory judgment
and an injunction to restrain the police from further
detaining him, upon the ground that his arrest and
detention, which he claimed was at the instigation of
Mr. Innocent Chukwuma, was an unwarranted infringement
of his fundamental rights under Chapter 4 of the
Nigerian Constitution, and for compensatory damages
award for the arrest and detention. Furthermore,
according to averments filed with the Nnewi Court by the
police commissioners and the investigators in the case,
just when the preliminary police investigation was
almost concluded, the Ogbuawa lawyers severally
petitioned the police Assistant Inspector General of
Zone 9, Umuahia, and the Federal High Court there, to
take over the investigation or hearing of the case,
alleging bias with the Nnewi authorities.
Then, when the case of Ogbuwa’s petition before the
Nnewi court came up for hearing, the trial judge,
Justice Paul A.C. Obidigwe, however, roundly rejected
the petition in his ruling of June 11the 2007 and
sustained the detention, as he held that the facts and
evidence presented before him were overwhelmingly
compelling, such that Ogbuawa ought to be detained and
not be granted bail. Thereupon, Ogbuawa was again
remanded in the custody of the police and held in police
detention at Abuja pending further investigations of the
allegations. Next, later in June 2007, a certain police
officer, Mr. Kerian Dudari, the senior police officer at
the Force CID headquarters, Abuja, in charge of the
case, in a move that raised considerable public outcry
and suspicion of police graft and probable
“compensation” of the police by Ogbuawa, suddenly
released Mr. Ogbuawa from detention and freed him from
any prosecution, as he claimed that, according to him,
after having critically examined the evidence in the
case, he had found that Mr. Ogbuawa “has no case to
answer on the issue, and so, there was no point keeping
him there.” Police authorities at Nnewi and Abuja loudly
wondered how the Abuja senior police officer, Mr. Kerian
Dudari, could have said that Ogbuawa had no case to
answer despite the mountain of evidence in police and
court files existing against him, and particularly the
clear contradiction of that statement by Justice
Obidigwe’s strong judgment. Thereupon, the next two
years that have followed since then can best be said to
have essentially been devoted by the Nnewi police to
endless series of legal maneuvers and technicalities in
a bid to counter the Ogbuawa lawyers and try keep the
case for prosecuting Ogbuawa in the matter alive.
The Ogbuawa case, and the uncommon legal maneuverings
attendant to it, have clearly been a source of public
misgivings and discomforting jitters within many civil
society and legal, judicial and criminal law enforcement
circles, to say the least. “Our worry is that this
dastardly act and those behind it may be swept under the
carpet,” declared Rev. Father Anthony Amarube, the
Director of the Centre for Victims of Extra–Judicial
Killings and Torture (CVEKT), a major Nigerian civil
society organization, in a July 2009 address.
Apparently alluding to the fact that of the 21 persons
on the police list of the accused on the case, Mr.
Ogbuawa has been the lone person who was not in police
custody at the time, Amaribe added that such concern is
heightened by the fact that, “given that between 2007
and now, some of the people directly and indirectly
involved in the commission of the crime are still
working the streets [as] free men even as there seems to
be sustained efforts to hijack this weighty criminal
case..” According to the CVEKT Director, “Even charging
those arrested by the police to court was reluctantly
done, and the pace of the dispensation can better be
described as snail pace.”
The Ogbuawa strategy seems to be quite simple: merely
employ, from that fateful day of his arrest and
detention, every legal technicality known to man “that
money can buy,” to stall, defeat and prolong the case,
until, perhaps, some miracle might descend from heaven
and the prosecution of the case is eventually
frustrated, derailed and stopped – eventualities such
as, perhaps, coming upon a compromised representative of
the Attorney General’s office or judge who could rule
accordingly in his favor, or of a key witness in the
case, or perhaps the sudden “disappearance” of the key
evidence in police files, or of even the death of a key
witness, or whatever. Who knows – just whatever!
THE LATEST ROUND OF HIGH STAKES LEGAL, JUDICIAL DRAMA IN
THE OGBUAWA CASE: THE FEDERAL ATTORNEY GENERAL
INTERVENES IN OGBUAWA’S FAVOR!
The latest cause to provoke public misgivings and alarm,
is the rather dramatic intervention of the federal
might, by way of the Federal Attorney General’s Office,
in the case, in a sudden legal maneuver far late in the
processing of the case – a maneuver in favor of Mr.
Ogbuawa, that was so sudden and unexpected in this
particular case, given the mountain of evidence already
in police files confronting him, that even two separate
prosecuting counsels, one from the Federal Attorney
General’s (FAG) office, and the other from the Anambra
Police command, vehemently clashed and disagreed over
the legal procedure ignited by the FAG intervention.
Briefly summarized, after all these months and even
years of agonizing legal maneuverings whose sum effect
has been to keep Ogbuawa out of court and out of
criminal prosecution by the police, the police
ultimately prevailed (the court, in a ruling by the
Nnewi High Court presided over by Justice Obidigwe, had
finally vacated an earlier interim order that had been
granted Ogbuawa for him to enforce his fundamental
rights, thus clearing the ground finally for Ogbuawa to
be arraigned in court), and had thereby promptly moved
to proceed to the prosecution of the case finally. The
Police prosecutors were all prepared, and on March 8,
2009, ASP B. Obiora Ejiofor, Esq. of the Police
Headquarters, Abuja , arraigned Pius P. Ogbuawa (and 20
other suspects) at the Federal High Court, Awka, before
Justice P.F. Olayiwola, on three criminal counts –
conspiracy to commit treason, treason and concealment
of treason. The Judge then adjourned the case.
However, lo and behold, on the next day, a lawyer from
the Director of Public Prosecution (DPP) office, Abuja,
Mr. S. Aliyu, representing the Federal Ministry of
Justice and Federal Attorney General’s (FAG’s) office,
Abuja, suddenly appeared before Justice Olayiwola and
announced that, upon the request of Ogbuawa, he was now
taking over the prosecution of the charge from the
Police prosecuting attorney, Mr. B. Obiora Ejiofor, who
had been handling it, and would be handling all matters
relating to the case from then on. Ogbuawa, it was
learned, had complained to the FAG of Nigeria that,
according to him, there was no evidence linking him with
the Innoson kidnapping crime. (Aliyu was later to hand
over the case for direct day–to–day handling of the case
at the Awka Federal HC, to Emeka Nwokolo of the DPP
office, Enugu branch). In deed, the said DPP Aliyu,
himself, had been the same Federal law officer who had
appeared personally in an earlier case at the State High
Court,
Nnewi,
before Justice Obidigwe, and applied for the withdrawal
of the charge against Ogbuawa when it was then pending
before that court.
WHAT WAS DPP ALIYU'S LEGAL BASIS FOR FEDERAL TAKE OVER
OF THE CASE?
In his written (and oral) application to the court later
while taking over the prosecution of the case, DPP Aliyu
requested the Federal High Court, Awka (to whom the case
had now been transferred and was now pending at that
time) for additional time in order for him to study the
case file and records to determine whether there was
sufficient evidence and legal basis to charge the case
for prosecution. But that was not all, however! Even
more worrisome in terms of the whole fate of this long -persisting
case, a clearly pivotal test case in the potential
direction of the future prosecution and punishment of
ferocious criminals involved today in the heinous menace
of kidnapping in Nigeria , were the following facts.
First, that in his earlier application to the court (the
one preceding this one, which had earlier held at the
Anambra State High Court, Nnewi), Aliyu had requested
the court, as well, to have the whole case entirely
struck down and dropped, and the accused persons
completely discharged and freed; and second, is that he
had requested that the accused persons should not only
be discharged and be freed, but should NOT again be
re–arrested!
It is a huge understatement to say that those
applications by DPP Aliyu, particularly the last one,
immediately send tremors of trepidation through the
spines of the Anambra public, as well as the civil
society community and police and law enforcement
authorities. The concern was: WHAT IF THIS JUDGE WERE A
COMPROMISED JUDGE, AND HE WERE TO GRANT THESE REQUESTS!?
That would have effectively removed Ogbuawa’s name (and
probably those of his fellow 20 other accused persons,
as well) from the charge sheet and ended any charge
against him in the matter ever again for all intents and
purposes!
Ironically, the Police (the Nnewi police), which had
generally been maligned (for valid reasons or otherwise)
as the far more corrupt institution and the greater
obstacle to crime fighting, was the one which stood
firmer and seemed more serious in this instance against
the DPP intrusion in favor of non criminal prosecution
of Ogbuawa! Fortunately for them, however, pursuant to
the DPP Aliyu’s application, the presiding judge in that
case, Justice Obidigwe, known to be a jurist with a wide
reputation for judicial integrity and incorruptibility,
refused to make an order of discharge of the accused
persons or an order that the accused persons not again
be re -arrested.
He only granted an order, however, permitting only that
the charge be struck out for the moment. Thus permitting
the police to continue with their investigation, and for
them to arraign later the accused persons in the case,
including P. O. Ogbuawa, at the Federal High Court,
Awka, presided over by Justice P.F. Olayiwola.
Thereupon, with the case now transferred to the Federal
High Court at Awka (under Nigerian law, the crime of
treason, which is one of the counts against the accused
in this case, is classified as a federal offense), DPP
Mr. S. Aliyu merely requested of Justice Olayiwola that
he needed time for him to study and review the case file
to make his own independent determination as to whether
or not to charge the case. The case was then adjourned
by the Awka court to October
5,
2009.
When does the DPP office which is supposedly studying
the case report his finding or decision that will
finally seal the FATE of the notorious Innoson criminal
kidnapping case, one way or the other? There is no
specific time limit set on the matter within which the
DPP is supposed to inform or notify the court of his
decision. However, given the length of time already
granted for the review (some 7 months, from March 9th
to October
5th
2009), and the critical urgency of this case in the
scheme of the whole national fight against criminal
kidnapping (among other reasons), simple reason would
suggest an expectation that by the next adjourned date
of the case, namely October
5,
2009, the DPP would have had his report ready and would
inform the court of the position of his office on the
matter, one way or the other.
DOES THERE EXISTA “PRIMA FACIE” EVIDENCE IN THIS CASE
FOR THE DPP TO CHARGE OGBUAWA & OTHER ACCUSED PERSONS TO
COURT?
Of great worry and concern, of course, and of great
speculation, is what is likely to be the decision by the
DPP upon his said review of the case files? To be sure,
there are wide misgivings especially within the Anambra
State government and public, and the civil society, the
Nnewi and Anambra Police, and others, that the basic aim
of taking over the case by Mr. Aliyu and his DPP law
officers at Enugu and Abuja, is precisely to try remove
Ogbuawa’s name from the crime charge sheet and thereby
effectively end any legal liability or accountability
whatsoever ever for Ogbuawa. To be sure, it is true,
that deriving from the Nigerian Constitution, under
Section 174 thereof, the Attorney General of the
Federation (AGF), represented here by the DPP, has the
power to take over or to discontinue any criminal
matter pending before any court, and in deed, at least
in theoretical terms, this awesome power – more commonly
known by lawyers as the nolie prosequi powers –
may be exercised by the AG under any guise or for any
reason whatsoever, notwithstanding the evidence, and
that it is not subject to any judicial review. Clearly,
as a practical matter, it is possible – just possible –
that the Federal AG, meaning his agent, the DPP office
of Mr. Emeka Nwokolo and Mr. Silas Amon, of the Federal
Ministry of Justice office Enugu, who are currently
directly in charge of the case at Awka, or Mr. S. Aliyu
of the DPP office of the Federal Ministry of Justice,
Abuja, who is the superior of the Enugu DPP team, just
might conceivably exercise the nolie prosequi,
and decide that they’d rather discontinue or terminate
the case come the adjournment date of the case,
October
5,
2009.
Quite possibly conceivable! However, I must
respectfully venture to assert that, given all the
unusual, in deed, unique, set of facts and circumstances
involved in this case, such outcome is, in my humble
assessment, patently quite unlikely. Certainly, it would
be the most perplexing, if shocking, thing to most
people familiar with the case, if that were to happen!
THERE'S A MOUNTAIN OF EVIDENCE ALREADY AVAILABLE, AND
STILL MOUNTING
To begin with, there’s simply an unusually uncommon
mountain of evidence already amassed in the case against
the accused persons, all strongly favoring, even crying,
for the prosecution of the case. HERE, THIS IS A MOST
IMPORTANT POINT OF LAW YOU MUST FIRST UNDERSTAND: bear
in mind that what is at issue here, is NOT whether
Ogbuawa or any single one of the other 20 accused
persons in this case is deserving of being convicted or
should be found guilty. It is NOT whether these persons
(each or any one of them) have sufficient evidence
against them such that they now ought to be adjudged or
pronounced “guilty,” or even “innocent,” in the case.
Rather, the only matter at issue here right now in this
stage of the case, is whether, based on the evidence
currently in the court and police files, such evidence
is enough such that it reasonably warrants that these
accused persons ought then to go before a judge right
now, and be legally examined and judicially TRIED on the
basis of whatever other evidence that might be available
on the case to then determine, in this “trial,” their
guilt or innocence in the charge. Put another way, in a
criminal case of this nature, there are essentially TWO
phases: the first phase is the ARRAIGNMENT phase (this
is the current phase confronting the DPP), and the
second phase, is the TRIAL phase.
Under the law, in the arraignment phase of the case (the
phase that the DPP and others are involved in right
now), the “burden of proof” (that is, the amount
or standard of evidence) that is required of the
criminal investigator or prosecutor (say, the DPP
officers, in this case) to meet, which would immediately
be considered to be sufficient, legally, to warrant
charging a case to court for a trial, is said to require
a “low threshold.” It is, basically, the standard of
evidence akin to what is called in criminal law
terminology, the “prima facie” standard of
evidence. The term “prima facie” is a Latin expression
which means “on its first appearance,“ or “by first
instance,” which is common in common–law jurisdictions
(such as Britain , and through it, Nigeria ), and
basically denotes evidence which, if not rebutted, is
deemed immediately sufficient to prove a particular
position or fact. But, here’s the relevant point
about this: the “threshold” required for the
criminal investigator or investigator to meet this
standard of proof or evidence, is VERY LOW and readily
easy to meet. In a “prima facie” standard, the evidence
need not be conclusive or irrefutable, and any evidence
rebutting the case, if any, need not necessarily be
considered in assessing the overall evidence. In fact,
the standard of proof called for here, is very similar
to that which falls under the rubric of “probable
cause” standard used under the United States
jurisprudence used by grand juries merely to determine
whether to issue an indictment against an accused or a
suspect – meaning whether to charge (as in the matter
presently confronting the DPP in the Innoson case) an
accusation to court for trial. In the American criminal
context, the U.S. Supreme Court in the United States v.
Sokolow, 90 U.S. 1 (1989), determined that the PROBABLE
CAUSE standard only requires “a fair probability that
contraband or evidence of a crime will be found.” And
just to give you an idea of just how LOW this standard
of evidence really is, though the U.S. courts vary in
how they determine what constitutes a “fair
probability,” many use 30 percent, others 40 percent,
and others
51
percent!
HERE IS THE CENTRAL POINT TO BEAR IN MIND HERE: that,
it is ONLY this very standard – this ludicrously very
LOWLY standard or threshold – of “prima facie“ or
“probable cause” evidence, that the DPP is required to
meet in the pending instant case in order to warrant his
charging the Ogbuawa case to court and allowing a trial
of the case before an impartial judge to occur right
away!
Given the above extremely LOW “threshold” standard of
evidence required, under law, to warrant institution of
the criminal arraignment of a suspect or an accused, the
question that immediately comes to mind for me, is WHY,
AT ALL, WAS IT EVEN NECESSARY OR WARRANTED THAT THE DPP
Mr. ALIYU AND HIS COLLEAGUES WOULD EVEN SEEK ANOTHER
FRESH “REVIEW” OF THIS CASE? A case that had already
gone through the excruciating scrutiny of an uncommon
array of “reviews,” in so many jurisdictions all across
the country, and which had, at long last, been finally
passed for arraignment by another team of criminal
prosecutors from the Nigerian Police, as well as by the
Anambra State Attorney General, and even by duly
constituted courts of law of the State of Anambra?
OVERWHELMING EVIDENCE TO ARRAIGN OR INDICT ALREADY IN
POLICE POSSESSION ON SUSPECTS
In deed, in point of fact, a close but objective review
of the records and history of this matter by this
writer, clearly shows that the LOWLY standard of “prima
facie” evidence of probable involvement in a crime
required under any civilized system of jurisprudence to
warrant permitting an arraignment of a case to go for a
trial before a judge, has already been more than met and
even surpassed in the instant case in question. That, in
deed, the evidences that have been amassed and are
already on the police and court records for the benefit
of the police prosecutors, or for the Abuja DPP’s Mr.
Aliyu or Messrs Emeka Okolo and Silas Amon of the Enugu
DPP office, are already so huge and vast, that they are
in deed far superior to what the average prosecutor
would be happy to have in a case even to win an outright
conviction in an actual trial, and not simply in an
arraignment. That there is, in fact, ALREADY, an
overwhelming mountain of credible evidence already
sitting in police and court files far sufficient to
warrant the mere arraignment (indictment) of the Ogbuwa
suspects in this case under any civilized system of
jurisprudence. Remember the basic, charge against Mr.
Ogbuawa? That he has been, or might have been, involved
as a mastermind, directly or indirectly, in the
kidnapping of some three persons abducted in the March
2007 Innoson kidnapping case. And that’s all!
Certainly, since that fateful March 2007 event, hasn’t
the record been rather overwhelming that the
investigations by the police have turned up an array of
evidence, much of it quite direct and incriminating,
linking Ogbuawa to the incident and to the criminals who
perpetrated the abduction? Just take a brief look, for a
little idea, at the various pieces of hard evidence long
in the police files and in previous court proceedings.
In the case before an Nnewi High Court judge, for
example, the following had been established, among
others. 1) A print– out from Mobile phone company
showing a trend of telephone communications between Mr.
Ogbuawa and the kidnappers shortly before, as well as
after, the victims were abducted; 2) evidence that
Ogbuawa, who is a major motorcycle importer, made a
donation of
5 brand new
motorcycles to the kidnappers, a move which Ogbuawa
himself directly admitted but claimed was part of the
condition for his release by the kidnappers after his
own abduction.
And, directly from the ruling of Justice P.A.C.
Obidigwe of the Nnewi State High Court of June 11th
2007, we find, already, that Ogbuawa “admitted or did
not deny” a great deal of incriminating evidence.
Evidence such as the following: a) that the Innoson
kidnappers “dressed in military uniforms visited him
with a Mitsubishi L 300 bus in his home at Nnewi,” b)
that his “in law, one Mr. Okechukwu, was one of those
who kidnapped” the Innoson kidnap victims;
c) that Ogbuawa
advised Sylvester Unigwe’s (one of the Innoson kidnap
victims) wife to phone the Innoson Director and ask
that he gave the kidnappers any amount they demanded;
and
d) that he was the one who had given the name Ugochukwu
Iloka, a prominent local businessman, to the kidnappers
as a good prospect for them to abduct and/or demand
ransom from, among others.
Clearly, even with just this amount of evidence only,
could the foregoing be more damning or more formidable
evidence, against a suspect in a case? And clearly, how
could any credible prosecutor realistically contend, in
any degree of good faith, even in the face of such a
mountain of evidence ALREADY well–tested and verified,
and ALREADY on the record, after well over two years of
close judicial scrutiny of all aspects of it, that it
does not already meet or exceed the lowly standard of
“prima facie” evidence required to warrant a simple
matter of court arraignment?
THEN, THE NEWEST EVIDENCE FURTHER NAILS THE CASE EVEN
BEYOND OVERWHELMING PROPORTIONS!
Still, all of the foregoing evidences, ALREADY
overwhelming for purposes of arraignment (or even
conviction) by any civilized standards, were all
accumulated and on the police and court records BEFORE
the latest major development in the case, however! But
even since then, however, there has developed yet
another momentous event whose net result has been to
produce yet another new explosion of a bonanza of
evidence on the case. In particular, on May 29th
2009, the fearsome leader of the criminal gang that
kidnapped the “Innoson three,” who goes by the name
Innocent Orji, was finally apprehended by the police,
finally ending a 2 years and 2 months state and regional
police man hunt. In terms of its significance to the
Ogbuawa case at hand, simply suffice it to say that
virtually nothing could have done more as to further
catapult the quantum of evidence already in police files
against the accused persons to a new stratospheric, even
unassailable, level, or done more in further
corroborating the preexisting evidence and cementing its
credibility for prosecutorial purposes. From several
press accounts on the matter, most of which are well
confirmed, since capture gang leader Innocent Orji has
already made many damning confessions and bombshell
revelations (most, if not all, of them on tape and
video) of Obguawa’s direct role and involvement in the
whole Innoson three kidnap event, roundly corroborating
key elements of the allegations and evidences
pre–existing on the official record against him. He
directly implicates Mr. PIUS O. OGBUAWA, and links him
to the gang’s financing and actions in the Innoson three
kidnap incident. He has confirmed, directly, as a
principal in the events, many of the matters that
previously were merely allegations and charges, even if
strong ones, and has vitally “filled in the holes” in
the pre–existing body of evidence on certain key details
in the kidnapping or the alleged Ogbuawa involvement –
that his gang was, in deed, the group that was
responsible for the kidnap of the now famous “Innoson
three,” that the second Chinese victim of the kidnap had
died in their custody, and where exactly he had been
buried, that Ogbuawa was, in deed, a major financial
patron of his gang, and had, in deed, at one time
provided his gang a list of 7 other
fellow–multi–millionaire businessmen in Nnewi (which
included the Chairman of the Innoson company, among
others) that he advised them to abduct, that his
criminal gang was in fact the group that had the entire
South–east of Nigeria under virtual criminal siege in
the last 2 years in the orgy of criminal kidnapping and
extortion that then prevailed, that Mr. Ikechukwu
(Nwachukwu), Mr. Ogbuawa’s in–law, was in fact a member
of his extortion gang, etc., etc
CONCLUSION
What emerges, upon reasonable examination of the facts,
is that, in fact, the evidence is clear and unambiguous
that there is far, far more than sufficient evidence
amassed and ALREADY sitting in the police and court
files at least to arraign (indict) Ogbuawa and his
follow suspects for a trial on the charge. That, in
deed, that question (the issue of sufficiency of
evidence to warrant a charge of the case to arraignment)
has not really been the issue in earnest in this whole
case. That, in fact, as one keen observer of the case,
an Anambra columnist who has followed this case very
closely for long, Mr. Mike Okongwu, summed it up, the
real issue has probably been: “With all these damning
allegations against him, if Ogbuawa was a man of little
means, would he be walking about so freely [today].
Does the law apply differently for different folks.”?
Are the Nigerian authorities, from President Umaru
Yar’Ardua, to Attorney General Michael Aondoaka, and
Police boss Ogbonna Onovo, really, really honest and
SERIOUS about fighting the Number One violent crime of
Nigeria of today – the brutal menace of armed robbery,
kidnapping and extortion? The recent lamentation in July
2009 of Farida Waziri, the Chairman of Nigeria’s
Economic and Financial Crimes Commission (EFCC), about
the slow impact of the work of her office on the war
against corruption in Nigeria, and the fact that the
existence of a considerable dose of corruption in the
Nigerian judiciary seems to be a major factor in not
recording dramatic improvements in the nation’s
corruption situation, seems immediately to fit so well
here. “The effect [of the kind of efforts that an agency
like the EFCC makes] is felt only when a man has been
sentenced and you see him being taken into prison and he
gets to prison and people see it,” Waziri says. But,
Waziri adds, in stead, what you often see, though, in
Nigeria are “people taken to court and they are smiling
and waving as if they are political heroes. Meanwhile
they are being arraigned for criminal cases and they are
waiving like Mandela.”
In summary, true, as a practical and constitutional
matter, the DPPs and the Federal AG office involved in
the current Ogbuawa case technically have the power
under the constitutional doctrine of nolie presequi,
possibly to discontinue the current Innoson kidnapping
case. So the letter and text of the Constitution reads
under Section 174 thereof! However, properly put in its
proper context, this must be clearly but emphatically
noted, too. That, a major PROVISO of that clause,
under subsection (3) therein, is that the Attorney
General, “in exercising his powers under this section, …shall
have regard to the public interest, the interest of
justice and the need to prevent abuse of legal process.”
(underlining by the writer).
THE ULTIMATE NIGERIAN "TEST CASE" –
ARE THE NIGERIAN AUTHORITIES REALLY SERIOUS, SINCERE?
To be sure, nationally, the Yar’Ardua
Administration has severally signaled that seriously
combating the grave twin crimes of armed robbery and
kidnapping, whether by the militants in the
Niger Delta, or by professional armed robbers in Anambra
state or other states,
are its top present national security priority.
As for this humble writer, I want, respectfully, to
believe, as a patriotic and genuinely interested
Nigerian who wants to believe in the current Nigerian
leadership, ranging from Umaru Yar’Ardua, to Federal
Attorney General Michael Aondoaka, and the new Police
Inspector General Ogbonna Onovo, and others, that all
actual “public officers” of the Nigerian nation, such as
Mr. S. Aliyu of the Abuja DPP office, and Messrs Emeka
Okolo and Silas Amon of the Enugu DPP office, or any
others in like position in Nigeria, are brutally
genuine and serious when they proclaim that they are
actually serious about combating, and actually
defeating, this most devastating of all violent crimes,
the menace of armed robbery and kidnapping. I want to
believe that these men (and women) of the DPP office,
will work dedicatedly in this case only in a way that
would give due “regard to the public interest, the
interest of justice and the need to prevent abuse of
legal process,” of the Anambra and Nigerian public, as
commanded by the Nigerian Constitution!
We shall await the October
5th 2009 date.
That is the next adjourned court date, at the Federal
High Court, Awka, in Anambra State, before Justice P.F.
Olayiwola. The men of the Nigerian Attorney General’s
office, through its DPP office of Messrs S. Aliyu at
Abuja, and of Emeka Nwokolo and Silas Amon at Enugu,
will finally tell Nigeria, as well as the much menaced
anxious Anambra population, and the world, particularly
the Chinese nation (two of whose nationals had been
among the victims of the kidnap, one of whom had died in
the kidnappers custody), what EXACTLY they’ve decided
about the fate of the infamous “Innoson three”
kidnapping case.
Benjamin Anosike,
Ph.D.
The
writer, who writes from New York, USA, is the prolific
author of some three dozens of legal texts mostly on
topics of American law (and literally a countless number
of articles), and an acclaimed legal scholar and expert,
frequent writer and commentator on political, economic,
social and legal issues. The hallmark of Anosike's
works, is presentation of "difficult" technical concepts
in simple, elementary constructs readily understandable
by the layman and the non–expert.
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