Prosecutorial misconduct: Lessons from Italy

Prosecutors play a vital role in society that demands respect and recognition. They represent the State in criminal matters, presenting the necessary evidence to establish the guilt of the defendant. In discharging this responsibility, they make crucial decisions such as whether to file charges, what charges to file, and when to plea bargain. This heavy responsibility is guided by ethical considerations considered fundamental in all civilised societies. They include but are not limited to focusing on the objective of prosecution, which is to achieve justice and not merely to convict at all costs.

Justice is three-way traffic- Justice for the victim, society, and the accused person. This requires prosecutors to be impartial and unbiased, as well as uphold legal procedures and safeguard the rights of the defendant. A breach of this duty can prove disastrous to the defendant and society at large. Hence, the reason civilised societies hold their prosecutors to the highest ethical standards, and whenever there is a breach, sanctions are promptly applied to serve as deterrence. This was what played out last week when it was widely reported in the media that “An Italian court sentenced two Milan prosecutors, Fabio De Pasquale and Sergio Spadaro, to eight months in prison on Tuesday for failing to file documents that could have supported Eni’s defense in an alleged corruption case involving a $1.3 billion oilfield in Nigeria. The case, involving Eni and Shell, centred around the $1.3 billion acquisition of a Nigerian oilfield and was regarded as one of the energy industry’s most significant corruption trials. The court noted that De Pasquale and Spadaro had omitted key evidence, including a video from a former Eni external lawyer that could have been favourable to the defence.” The sanctioning of the prosecutors in Milan affirms the ethical standards required of their calling. It will be recalled that the Supreme Court of Nigeria had, as far back as 1966, in the case of Chief Odofin Bello  V. State  ( 1966) LPELR-25291(SC), reiterated the time-tested duty of the prosecution to disclose all facts in the following words: “We cannot do better than remind counsel that the prosecution must put all the facts at its disposal before the Court and not to hide any fact. Anything short of this is an attempt to conceal from the Court any evidence favourable to the accused.” Per Ademola, JSC (P. 16, paras. C-D)

The Guidelines for Federal Prosecutors issued by the Attorney General of the Federation, which applies to all prosecutorial agencies and private prosecutors prosecuting on behalf of the State, also provide direction to prosecutors that “the essence of criminal prosecution is not to obtain conviction at all cost. It is to lay before the court what the prosecutor considers to be credible evidence relevant to the allegation of a crime”. Regarding fairness, the Guidelines require the prosecutor to “inform the defence and the court of directions, warning or authorities which may be appropriate in the circumstances of the case, even where unfavourable to the prosecution”. Prosecutors are further enjoined to weigh the strength of the evidence before embarking on the prosecution that: “no prosecution should be undertaken where essential evidence if the basic elements of the offence are lacking…it is not in the public interest to use public resources on the prosecution of a case which has no reasonable prospect of success”. To do otherwise may amount to an abuse of legal process and loss of public confidence in the criminal justice system, especially where the prosecution results in an acquittal.

Despite these Guidelines and the locus classicus of Bello v. State, prosecutorial agencies such as the EFCC continue to run roughshod over defendants’ rights without appropriate sanctions. Embolden by the apparent lack of accountability, they routinely file charges that they cannot substantiate just to satisfy their ego and that of their Bosses, intimidate accused persons to make implicating admissions, pressure witnesses to lie and conceal evidence favourable to the defence all in an attempt to secure a conviction at all costs.  Such was my experience in the hands of the EFCC, where the EFCC prosecutors filed similar charges against me before the High Court of the Federal Capital Territory and the Federal High Court, Abuja, ostensibly to overwhelm me. Apart from concealing that the FHC, Abuja Coram Binta Nyako J, had delivered a judgment absolving me of any blame in the implementation of the Settlement Agreement of 2006 between Malabu Oil and Gas Limited and the Federal Government of Nigeria, the EFCC proceeded to file bogus charges against me on the same transaction.

It is on record that the High Court of the FCT roundly deprecated the conduct of Mr Bala Sanga, one of the EFCC prosecutors for pressurising one of the witnesses to lie against me. Apart from filing unsubstantiated charges against me, it took the prosecution over four years to call their witnesses, after which the Court came to a reasoned ruling that I had no case to answer. Hon. Justice Kutigi, J expressed his disapproval thus: “As I round up and because of the rather unfortunate narrative relating to the length of time of nearly four (4) years for the prosecution to produce all their witnesses in proof of this case, it appears to me imperative to call on learned prosecuting counsel to show more circumspection in filing charges of this nature…  A charge must, therefore, not be filed for the simple sake of doing so or to soothe the ego of any person or institution”.

The conviction and sentencing of the prosecutors in Italy for breaching their professional duty and ethics should serve as a lesson to their counterparts in Nigeria. It is a wakeup call for stakeholders in the justice sector, particularly the Attorney General of the Federation and Minister of Justice, the Nigerian Bar Association, the Legal Practitioners Disciplinary Committee (LPDC), the Legal Practitioners Privileges Committee (LPPC), the Judiciary, and civil society. Urgent steps need to be taken to hold prosecutors accountable for any breach of their sacred duty of prosecution. This is crucial to maintaining the ethical standards that are fundamental to the justice system.

Adoke SAN was attorney-general of the federation and minister of justice from 2010 to 2015.