Ikemesit Effiong
There has been an inexhaustible volume of reporting and commentary on the recent decision by a London jury finding former petroleum minister Diezani Alison-Madueke not guilty of six bribery charges brought against her by UK prosecutors, bringing to an end an 11-year investigation by the UK’s National Crime Agency (NCA). This piece will inevitably add to that growing volume. The reporting and commentary have largely centred on its implications for tackling corruption in Nigeria, the difficulty of securing criminal convictions against foreign Politically Exposed Persons, the inability of Nigerian anti-graft agencies to pull their own weight in the face of anaemic political will, and even the implications of this case for British anti-graft institutions.
A passing look at the reactions from senior lawyers, civil rights activists and political commentators offers three insights: that the UK decision is that of a foreign court and not applicable under Nigerian law, the NCA did not do a great job linking a lavish lifestyle to gifts alleged to have been received by the former minister and the assumption that a Nigerian court of law will reach a substantially different conclusion. An examination of these arguments is important for setting public expectations about how Nigeria can clean up its governance.
Much of the chatter in the public sphere and on social media hinges on one key question: Can the former petroleum minister be tried again by a Nigerian court on substantially similar charges? Answering this requires one to wrestle with the legal concept of double jeopardy. At its most basic, double jeopardy, rooted in the Latin maxims nemo debet bis vexari pro una et eadem causa (no one should be twice vexed for the same cause) and autrefois acquit (formerly acquitted) or autrefois convict (formerly convicted), is an age-old common law principle that prevents a person from being tried again for the same offence after a final acquittal or conviction. Fundamentally, it prevents the State from repeatedly prosecuting or punishing an individual for the same criminal conduct once a competent court has finally determined the case.
Considering the two countries involved, it is also useful to contrast how double jeopardy operates under contemporary English and Nigerian law, despite their shared ancestry in English common law. In Nigeria, the doctrine is an ironclad fundamental right under section 36(9) of the Constitution. Under it, no person who has been tried by a court or tribunal of competent jurisdiction for a criminal offence and either convicted or acquitted shall again be tried for that offence, or an offence having the same ingredients, except upon the order of a superior court. Nigerian courts have repeatedly affirmed this as a “protectionist clause” against injustice and abuse of power. The rule is, however, not absolute; for example, the Code of Conduct Tribunal regime allows, in some circumstances, a person tried by the Tribunal to still face proceedings in a regular court where a “distinct criminal element” is involved, sparking debate in legal circles as to whether this offends double jeopardy.
In the UK, the rule against double jeopardy has existed in English law for over 800 years and historically operated as an absolute bar to re‑prosecution after acquittal. Traditionally, once a person was acquitted by a court of competent jurisdiction, they could plead autrefois acquit to prevent any future indictment for the same offence. This strict rule was partially abolished by the Criminal Justice Act 2003 for England and Wales (with similar reforms in Northern Ireland, and separate legislation in Scotland). The 2003 Act permits the Court of Appeal, in narrowly defined circumstances involving serious offences such as murder and rape, to quash an acquittal and order a retrial if there is “new and compelling” evidence. This retrial must be conducted with the personal consent of the Director of Public Prosecutions and in accordance with a prescribed special procedure. Commentators have noted that the new exception has been used rarely because of the demanding nature of proving “new and compelling evidence” and the requirement that a retrial remain in the public interest and be compatible with a fair trial. In other words, both in England and Nigeria, double jeopardy is a very firm bar to state-enabled lawfare and prosecutorial harassment.
Now, it is true that the just concluded trial pertained to alleged gifts received by Alison-Madueke in England and the Economic and Financial Crimes Commission (EFCC) is understood to have allegations against her concerning acts made in Nigeria – a clear case of jurisdictional demarcation. Despite a high conviction rate, the EFCC may need to be reminded that a guilty verdict is never guaranteed, as the NCA and the English state found out this month.
Furthermore, English case judgements, while not binding on Nigerian courts and forming clear precedent for Nigerian judges, could persuasively sway them, particularly on similar principles of law, because of our shared legal history. In addition, the ability to prove causation in determining the mens rea or criminal intent to commit a criminal act or actus rea will be crucial – it is fundamentally why the prosecution failed to prove its case in the Diezani case. Finally, and this is critical to mention, the former minister is presumed innocent until proven guilty in Nigeria and has been found not guilty of allegations made against her in England. The mischaracterisation by many in the media, including lawyers, of her presumed guilt despite a subsisting jury decision to the contrary is not only disappointing but also distorts public discourse about how the judicial process (and possible outcome) in Nigeria is likely to unfold.
In essence, these legal doctrines – the presumption of innocence, double jeopardy and cross-border judicial precedence doctrine – give us a sense of how a legal system reconciles finality with fairness. Particularly on double jeopardy, Nigeria’s constitutional insulation of acquittals reflects a deep distrust of state power and a premium on finality, while the UK’s calibrated exception reflects a modern willingness to subordinate finality to truth in the most grave cases. The danger we face as a society is expecting legal principles and the courts to work the same way as the ‘court’ of public opinion. Merely charging a person to court or spouting accusations in the media should not be treated as equivalent to, or predictive of, a conviction. The big lesson with the Alison-Madueke case is that most observers presumed her guilty as soon as the allegations were made. The law and the courts have given us another reminder that the presumption of innocence is a protection enjoyed by everyone – including those you may not like – and that it requires serious work to shake off.
•Ikemesit Effiong is a lawyer based in Lagos