Research papers on gender and corruption

In each article, the goal is to illustrate potential paths for reformers to take in each policy area: legislative proposals, policy campaigns, monitoring, reporting, and a shift from gender-sensitive program design to gender-transitioned program design.

 

 

 

CREDIT; Transparency International

ICC MATERIALS

International Criminal Court CORE TEXTS

 

 

Rome Statute of the International Criminal Court (Statute)

The international treaty establishing the International Criminal Court is the Rome Statute of the International Criminal Court. It sets out the administrative framework for the court and consists of a preamble and 13 parts. This law was adopted by the Rome Conference on July 17, 1998 and entered into force on July 1, 2002, thereby establishing the International Criminal Court.

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Rules of Procedure and Evidence (Rules)T

They are subordinate to statutes and regulate the composition and operation of courts.

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Elements of Crimes

The Elements of Crimes were developed to assist the Court in interpreting and applying the crimes outlined in articles 6-8bis of the Statute. These elements establish the necessary conditions for someone to be held criminally responsible and liable for punishment. They cover jurisdiction, material aspects, and the mental state required for each crime.

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Regulations of the Court

The Court Regulations outline the court’s structure, administration, proceedings, legal assistance, victim participation, detention, cooperation, enforcement, removal, and disciplinary measures.

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Regulations of the Office of the Prosecutor

 

The Regulations of the Office of the Prosecutor, like the Registry’s Regulations, are governed by the Statute, Rules, and Court Regulations, governing its management, administration, handling of information, and investigations.

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Regulations of the Registry

The Registry’s Regulations, governed by the Statute, Rules, and Court Regulations, outline its organization and management, administrative duties, legal representation, assistance, victim and witness matters, and detention matters, subject to the Statute, Rules, and Court Regulations.

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Code of Professional Conduct for counsel

The Code of Professional Conduct for counsel, adopted by the Assembly of States Parties, governs the conduct of counsel in their representation of clients, relations with the Court, other counsel, unrepresented individuals, and victims and witnesses, and establishes a disciplinary regime for misconduct.

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Code of Conduct for the Office of the Prosecutor

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Prosecuting Terrorism in Nigeria and the International Criminal Legal Framework

Prosecuting Terrorism in Nigeria and the International Criminal Legal Framework

by

Adejoke O. Adediran

Senior Research Fellow, NIALS

The prosecution of persons alleged to have committed terrorist acts in Nigeria is mandated by the Terrorism (Prevention and Prohibition) Act 2022 (TPA) among others.

In spite of the extant laws, the prosecution of members of the Boko Haram terrorist group who have committed terrorist acts has been criticized as ineffective. While the offenders are being prosecuted for the offence of terrorism, the Boko Haram terrorist group has indeed committed war crimes and crimes against humanity which are international crimes. An effective prosecution regime should therefore encompass international crimes.

International crimes are provided for in the Rome Statute of the International Criminal Court 1998 (Rome Statute). As Nigeria is a party to the Rome Statute, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) received communications from the period 10 November 2005 to 30 September 2012 on the armed conflict between the State forces and the Boko Haram terrorist group. The OTP in its 2012 Preliminary report subsequently declared that the non-international armed conflict between the State forces and the Boko Haram sect falls within the jurisdiction of the ICC. On 12 November 2015, on the basis of an updated subject-matter assessment, the OTP identified eight potential cases involving the commission of crimes against humanity and war crimes under Articles 7 and 8 of the Rome Statute.

The Rome Statute established the International Criminal Court (ICC) to prosecute and try individuals accused of committing international crimes of genocide, crimes against humanity, war crimes and the crime of aggression. The Statute recognizes that States have the first responsibility and right to prosecute international crimes. The ICC may only exercise jurisdiction where national legal systems fail to do so, including where they purport to act but in reality are unwilling or unable to genuinely carry out investigation and prosecute the perpetrators. Efforts were made by the Nigerian government to enable the prosecution of perpetrators of terrorist acts in Nigeria. The TPA was enacted in 2011 and amended in 2013 to facilitate the trial and punishment of terrorism offences. There was prosecution of members of the Boko Haram terrorist group but concerns were raised by lawyers and Civil Society Organisations (CSOs) over the effectiveness of the trials.

In conducting its preliminary examination to determine whether there is a reasonable basis to proceed with an investigation into the situation, the OTP identified the existence of several national cases against Boko Haram members. However, it found that the cases did not create potential conflict of jurisdiction with the ICC because they did not cover the same alleged conduct. While some cases covered same or similar conduct, they were against low level perpetrators. This is contrary to the OTP’s policy which focuses on those who appear to bear the greatest responsibility for the most serious crimes. The OTP also disclosed that there were no relevant proceedings in respect of the national security forces and there were no ascertained steps by the authorities to address the allegations of members of the national security forces. The OTP consequently concluded in its 2020 report that the criteria to proceed with an investigation are met with respect to subject-matter, admissibility, and the interests of justice.

It is noteworthy that African Union (AU) states members have not wholly cooperated with the ICC in the past. In 2009, the AU passed a resolution of non-cooperation with the ICC on the arrest and surrender of the President Omar Hassan Ahmad Al-Bashir, the then President of Sudan who was accused of genocide and other crimes. African States were of the opinion that they were being witch hunted and that the ICC was only after African leaders. Some African leaders who are state parties to the Rome Statute threatened to withdraw from the Court. When the ICC issued warrants of arrests for Al Bashir in 2009 and 2010 respectively, he failed to honour the warrant. He was later arrested in 2019 however, he visited Nigeria in 2013 during the time he was at large despite the arrest warrant issued by the ICC against him. Antecedents have also shown that States would rather prosecute international crimes within their jurisdiction themselves than to have an investigation opened by the ICC. This means that States must be able to effectively prosecute those crimes themselves.

Effective prosecution of Boko Haram members in Nigeria for international crimes requires the domestication of the Rome Statute. Nigeria ratified the Rome Statute on 27 September 2001 but is yet to domesticate it in accordance with section 12 of the 1999 Constitution. Domestication will however be challenging because of certain provisions in the 1999 Constitution. Section 308 of the Constitution grants immunity from criminal trial to the president, vice president, governors and deputy governors. This is contrary to the provisions of Article 27 of the Rome Statute which provides that there shall be no exemption of government officials such as head of states or governments from criminal responsibility under the Statute and there shall be no reduction of sentences on such grounds. It is therefore necessary to amend the provisions of Section 308 of the 1999 Constitution to provide for exclusion of the crimes under the Rome Statute.

The Powers of the Attorney General of the Federation under Section 105 of the Administration of Criminal Justice Act, 2015.

The Powers of the Attorney General of the Federation under Section 105 of the Administration of Criminal Justice Act, 2015.

By

Queenetta K. Bassey Esq.

Introduction

When Owelle Rochas Okorocha was charged to court by the Economic and Financial Crimes Commission (EFCC) on allegations bordering on 2.9 billion Naira fraud, the public was filled with expectations about the possible outcomes, bearing in mind that he was a former governor of the same political party that controlled the federal government. On the 6th of February 2023, Justice Iyang Ekwo of the Federal High Court Abuja struck out the case on the ground that the prosecution flouted the provisions of Section 105(3) of the Administration of Criminal Justice Act 2015 (ACJA), when it failed to honor the directive by the Attorney General of the Federation to submit to his office the case file for review.

Power of Attorney-General to Review Case Files

Section 105 of ACJA provides:

  1.  The Attorney-General of the Federation may issue legal advice or such other directive to the police or any other law enforcement agency in respect of an offense created by an Act of the National Assembly.
  2.  Where any proceeding is pending in respect of the offense for which legal advice or other direction referred to in subsection (1) of this section is given, a copy of the legal direction shall be forwarded by the Attorney General of the Federation or director of Public Prosecutions to the court before whom the proceeding is pending.
  3.  The Attorney-General of the Federation may request from the Police or any other agency for the case file in any matter in respect of an offense created by an Act of the National Assembly and the Police or any other agency shall immediately send the case file as requested.

Section 105 ACJA acknowledges and re-emphasizes the supervisory and ultimate powers of the Attorney General of the Federation with respect to the prosecution of federal crimes. The ACJA is not an isolated legislation on this topic. Section 174 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) spells out the powers of the Attorney General of the Federation as follows:

1. The Attorney General of the Federation shall have power-

(a). to institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court-martial, in respect of any offense created under any Act of the National Assembly;

(b) to take over any and continue any such criminal proceedings that may have been by any other authority or person; and

(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person .

2. The powers conferred on the Attorney General of the Federation under this sub-section (1) of this section may be exercised by him in person or through officers of his department.

3. In exercising his powers under this section, the Attorney General of the Federation shall have regard to the public interest, the interest of justice, and the need to prevent abuse of the legal process.

Section 105 of ACJA reaffirms the powers vested in the Attorney General in section 174 of the Constitution. It creates a window of opportunity for the Attorney General of the Federation to intervene in the course of a criminal proceeding without necessarily invoking the powers under section 174 of the Constitution to terminate the process via a nolle prosequi. It enables supervisory administrative intervention without the added burden of having to commence the process de novo. This fits in well with the fundamental objectives of ACJA to improve and promote the effective implementation and dispensation of criminal justice in Federal Courts, guide against the abuse of power, and protect the fundamental rights of defendants.

Mandatory Compliance of Federal Prosecutors with the Attorney General’s Directives

Any person or authority prosecuting a federal crime exercises that power by the express or implied delegated powers of the Attorney General of the Federation and all federal prosecutions are subject to the power of review under section 105 of the ACJA. The issuance and compliance with the directives under section 105 should ordinarily be administrative. A combined reading of section 174 of the Constitution and section 105 of ACJA imposes a responsibility of compliance on all agencies prosecuting offenses created by an act of the National Assembly, to hand over case files for review. It should not require a judicial order before any person or authority complies with the directive issued under section 105. The court should only be informed that section 105 has been activated and appropriate steps will be taken by the court in each given circumstance.

Balance of Interests and Checks on the Powers of the Attorney-General

The Constitution and the courts place a heavy moral burden on the occupier of the Office of the Attorney General to be circumspect in the exercise of these enormous powers. Section 174 (3) of the Constitution expressly provides that “in exercising his powers under this section, the Attorney General of the Federation shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.”

In State V. Ilori, the Supreme Court expressed the view that any Attorney-General, be of the Federation or of a State, is answerable for his actions not only to his appointor but also to the National or State Assembly as the case may be. He is, of course, also subject to the comments, favorable or otherwise, of the members of the legal profes­sion and to the glaring scrutiny of public opinion. It may not be out of place to record, in this context, the public’s general aversion to mixing politics with the enforcement of criminal law. The supreme impor­tance of maintaining the independence of the Attorney-General when discharging his responsibility, inherent in his office, for the proper admin­istration of the criminal law, must therefore be emphasized.

Conclusion

Whether the Honorable Justice of the Federal High Court Abuja in Rochas Okorocha’s case should have adjourned the case pending the outcome of the review process or strike the case out, is an open question. Since there are no constraints on the timing for the exercise of powers under section 105, it might be the preferable option for the court to adjourn within the permissible ACJA limits. It is the public’s expectation that in spite of the fact that the Attorney General is a political appointee of the President, the power granted under section 105, a great ministerial prerogative coupled with grave responsibilities, will be exercised with sobriety and in the larger interest of justice. As observed by Fatayi-Williams CJN in State v. Ilori, it is of paramount importance that when an Attorney-General is being appoin­ted, the appointor should, at all times, bear in mind the integrity, ability, experience, and maturity required of the person holding this high and important office. He should be a person who, in the discharge of his duties, will always “have regard to the public interest, the interest of justice, and to the need to prevent any abuse of legal process.”

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