The Fight Against Anti-Corruption Agencies By NBA By Femi Falana
The theme for the 56th annual general conference of the Nigerian Bar Association (NBA) which held in Port Harcourt, Rivers State from August 21 – 26, 2016 was “Democracy and Economic Development.” In the communiqué issued at the end of the conference the NBA commended the battle against corruption but urged the Buhari administration to execute the battle “within the ambit of the law to enhance economic development.” However, during his inaugural address the newly elected President of the NBA, Mr. A. B. Mahmoud SAN demanded that the Economic and Financial Crimes Commission (EFCC) be stripped of prosecutorial powers and limited to investigation. He also called for the setting up of an independent prosecution agency to prosecute cases investigated by the EFCC.
Instead of joining issues with Mr. Mahmoud who had expressed his personal opinion on a matter of public interest the EFCC reacted in a rather knee jack manner and subjected the entirety of Nigerian lawyers to undeserved spurious attack. Notwithstanding that the EFCC goofed Mr. Mahmoud’s call has attracted suspicion in view of the campaign hitherto spearheaded by the NBA leadership to weaken the EFCC and thereby promote the culture of impunity on the part of a ruling class that has stolen the country dry. As defenders of a distorted version of the bourgeois concept of the rule of law senior lawyers have clashed with the EFCC which has attempted to challenge the status quo by humiliating members of the ruling class. Unlike other anti-graft bodies the EFCC has consistently opposed the bail applications of rich and influential criminal suspects and thereby caused them to be briefly locked up in prison custody. In this intervention, I intend to situate the clash between the NBA and EFCC within historical context and review the several cases in which senior lawyers have consistently waged legal and ideological battle against the anti-corruption crusade by challenging the existence and relevance of the anti-graft agencies.
Challenge of legal validity of anti-graft agencies
In shielding politically exposed persons and other members of the ruling class from prosecution for corrupt practices senior lawyers have audaciously challenged the legal validity of the anti-corruption laws and the competence of anti-corruption agencies to discharge their statutory functions. The NBA had kicked against the Recovery of Public Property (Special Provisions) Decree no 3 of 1984 promulgated by the Buhari military junta to set up special military tribunals in 1984 for the trial of alleged corrupt politicians of the second republic. In a purported defence of the rule of law the NBA directed all lawyers to boycott the special military tribunals as they were constituted by military officers without any legal training. Convinced that lawyers were hiding under the doctrine of rule of law to promote corruption the late Chief Gani Fawehinmi SAN accused the NBA of hypocrisy by allowing its members to appear before courts-martial equally constituted by military personnel. The radical lawyer defied the NBA and defended some accused persons charged before the special military tribunals. Angered by Chief Fawehinmi’s defiance the NBA entered his name in a so called black book. The name was not restored until 1988 under the progressive NBA leadership of the late Mr. Alao-Aka Bashorun.
As corruption became fully institutionalized under the military junta headed by Generals Ibrahim Babangida and Sani Abacha, Nigeria was rated as one of the most corrupt countries in the world by Transparency International. Consequently, Nigeria was blacklisted by the Financial Action Task Force for condoning corruption and other serious economic crimes. But upon the restoration of civil rule in May 1999 the Olusegun Obasanjo administration decided to redeem the image of the country by enacting the Independent Corrupt Practices and Other Related Offences Commission Act, 2000. The commission established by the Act was assigned the responsibility to investigate and prosecute corrupt people in the society. A few years later, another commission was set up under the Economic and Financial Crimes Act, 2004 to deal with advanced fee fraud, money laundering and other economic and financial crimes.
But as soon as some officials of the Ondo State government who were accused of corrupt practices were invited for interrogation the constitutional validity of the Act was questioned by the plaintiff in Attorney-General of Ondo State v. Attorney-General of the Federation (2002) 27 WRN 1. In dismissing the suit the Supreme Court held that “The Act is meant to make justiciable by legislation a declared state policy to abolish corrupt practices and abuse of power…It is not in any way an attempt to embark on a general criminal law legislative jurisdiction. The eradication of corrupt practices and abuse of power will enure to the good government of Nigeria.”
Another vigorous attempt was made to nullify the Independent Corrupt Practices and Other Related Offences Commission Act in Olafisoye v. Federal Republic of Nigeria (2005) 52 WRN 51 where the appellant contended that the enactment of the ICPC Act was ultra vires the National Assembly. In rejecting the argument the apex court held that “In most nations, including Nigeria, the masses abhor corruption and that is one reason. Though not the most important reason, why the ICPC Act was enacted. A Government which embarks upon a large scheme to stop corruption will certainly be regarded by its people as a good government as it responds to the economic needs of the people. Such governmental action will certainly vindicate section 15(5) of the Constitution.”
Having lost the battle to demolish the ICPC the EFCC Act was vigorously challenged by the plaintiff in Attorney-General of Abia State v. Attorney-General of the Federation (2007) 6 NWLR (PT 1029) 200. which prayed the Supreme Court to declare the EFCC Act 2004 illegal, null and void for inconsistency with the Constitution. In striking out the case in limine the court held that the plaintiff ought to have instituted the action at the federal high court. Shortly thereafter, in Hassan v. Economic and Financial Crimes Commission (2014) 1 NWLR (PT 1389) 607 the Court of Appeal refused the relief for perpetual injunction to restrain the Commission from further arresting or disturbing the appellant on the ground “no court has the power to stop the investigative powers of the Police or EFCC or any agency reasonable suspicion of commission of a crime or ample evidence of commission of an offence by a suspect.”
Furthermore, in Kalu v. Federal Republic of Nigeria (2014) 1 NWLR (PT 1389) 479, the locus standi of the EFCC to prefer charges against the appellants was taken up by the appellants. In dismissing the appeal the Court of Appeal held that the argument of the Appellants was rooted in the fallacious ground that “the funds allegedly stolen and paid into the account of Slok Nigeria Limited was from the Security Votes of Abia State that were managed by the 2ndRespondent, as the Governor of Abia State, and that the said Security Votes are ‘unaccountable and unretireable’. The argument does not say, and it cannot be further stretched to mean, that because the funds from Security Votes are ‘unaccountable and unretireable’ they are ‘stealable’ or and can be pilfered with impunity.” The Supreme Court has since upheld the decision of the Court of Appeal and directed the appellants to stand trial at the federal high court.
The battle ground shifted to the Code of Conduct Tribunal last year in the celebrated case of Dr. Olubukola Saraki v. Federal Republic of Nigeria (2016) 3 NWLR (PT 1500) 531 where the appellant, the current Senate President, was charged with false declaration of assets while he was the governor of Kwara State. The several objections raised against the trial were dismissed by both the Tribunal and the Court of Appeal. The further appeal to the Supreme Court was equally dismissed on the ground that the Tribunal was properly constituted by the Chairman and at least another member. The competence of the charge was also validated on the ground that the powers of the Attorney-General to file criminal charges are not exclusive to the holder of the office as any other authority or person can institute and undertake criminal prosecution without the authority of the Attorney-General.
Aside the legal battles which have been relentlessly waged against the anti corruption crusade by senior lawyers the NBA has kicked against the decision of the National Human Rights Commission (NHRC) to publish the list of criminal suspects who allegedly committed electoral malfeasance during the 2011 and 2015 general elections. Even though the list of the indicted individuals was largely compiled from the judgments of the various election petition tribunals and the courts the NBA has called on the Attorney-General of the Federation to call the commission to order for usurping the functions of other statutory agencies! It is hoped that the Attorney-General will draw the attention of the NBA leadership to articles 13 and 20 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (Cap A9) Laws of the Federation of Nigeria 2004 which have guaranteed the human rights of the Nigerian to participatory government either directly or through chosen representatives.
It is rather unfortunate that the NBA has suddenly become the defender of electoral offenders when the reports compiled by its own election monitoring team had confirmed the violations of the Electoral Act 2010 by political thugs and other enemies of democracy in several parts of the country. In fact, the NBA had cooperated with the Professor Jega-led Independent National Electoral Commission in the prosecution of a number of electoral offenders in many states of the federation after the 2011 general election. Having been asked by the NBA to coordinate the prosecution team at the material time I have since dissociated myself from the baseless attack of the NHRC by the NBA. Convinced that the NHRC has rightly taken up the challenge of protecting the democratic rights of the Nigerian people I have directed my law firm to defend the NHRC pro bono publico if it is sued by any of the indicted electoral offenders.
Campaign to weaken the EFCC
As soon as the EFCC was established in 2004 it pounced on the kingpins of advanced fee fraud otherwise called “419” who had dragged the nation’s name through the mud. Like other concerned Nigerians the lawyers were pleased with the successful prosecution of such economic parasites. But senior lawyers parted ways with the EFCC when it began to expose members of the ruling class to ridicule by taking some highly corrupt public persons to court in handcuffs. It was at that stage that lawyers began to accuse the EFCC of engaging in human rights abuse even though they had never complained that petty criminal suspects are taken to court in handcuffs and leg chains. At the 2006 annual conference of the NBA which held in Port Harcourt, the NBA leadership called for the removal of Mr. Nuhu Ribadu as EFCC chairman. The call was however defeated and jettisoned as it was vehemently opposed by the majority of the conference participants.
Sometime in 2007, former NBA President, Olisa Agbakoba (SAN) led a delegation of bar leaders to pay a courtesy call on the then Minister of Justice and Attorney-General of the Federation, Mike Aondoakaa (SAN). On that occasion the NBA leadership requested the federal government to divest the EFCC of prosecutorial powers. Apparently goaded by such “professional advice” and reported pressures from the tribe of politically exposed persons the Attorney-general requested former President Umoru Yaradua to direct the EFCC and other anti graft agencies to obtain his written approval before instituting any criminal case in court. The request was hastily granted by the President.
Not unexpectedly, the NBA hurriedly commended the Federal government for clipping the wings of the EFCC. According to Mr. Agbakoba, “the EFCC has no right to prosecute; it is the AGF. The directive simply sends the EFCC back to where it belongs.” Since the position of the AGF and the NBA did not reflect the correct state of the law I was compelled to draw the attention of the Federal Government to the case of the Federal Republic of Nigeria v. Osahon (2006) 24 WRN 1 wherein the Supreme Court had held that the police and other law enforcement agencies clothed with prosecutorial powers are competent to initiate criminal proceedings without the authorization of the AGF.
As soon as it became clear that the federal government had been totally misled by the NBA the directive was immediately withdrawn. Notwithstanding the commendable decision of the Government to return to the status quo the NBA leadership turned round to incite the Attorney-General to take over the prosecution of all cases which had been investigated by the EFCC. But the attempt to take over the cases from the EFCC was dropped when it was revealed in the media that the Attorney-General was, before his appointment part of the defence teams of some of the two of the politically exposed persons. At that juncture, the NBA leadership demanded for the involvement of Senior Advocates of Nigeria in the prosecution of corruption cases. Based on such pressures the EFCC actually firmed out a number of corruption cases to some members of the inner bar in 2008. While some of the senior counsel returned the case files assigned to them on the ground that the fees were inadequate the EFCC was compelled to withdraw many others as they were not pursued with the vigour and urgency required in the prosecution of corruption cases.
At the same time the NBA leadership accused the EFCC of acting ultra vires by usurping the powers of the Attorney-General in collaborating with the Metropolitan Police in the investigation of Chief James Ibori, ex-governor of Delta state. When Chief Ibori was eventually charged with money laundering by the EFCC at the federal high court, Awokulehin J. (as he then was) upheld the preliminary objections of the defence team led by Messrs J. B. Daudu SAN and Austin Aleghe SAN and struck out the 170-count charge. Even though he was given a clean bill of health by the federal high court Chief Ibori was later convicted and jailed by a British court on the basis of the same evidence. Despite the fact that the handling of the case exposed the Nigerian judiciary to gargantuan embarrassment the NBA never challenged senior lawyers who have continued to frustrate the prosecution of corruption cases through frivolous objections, interlocutory appeals and stay of appeals as well as orders of interlocutory or perpetual injunctions in favour of treasury looters.
In advanced capitalist societies, lawyers are duty bound to ensure that the law is higher than everyone, no matter how highly placed. But in a peripheral capitalist society like Nigeria, lawyers have placed rich and powerful individuals above the law. In recent time, many senior lawyers have shown proclivity for manipulating the criminal justice system to detriment of the society by lending their expertise to clients outside the bounds of law in contravention of paragraph 15 (2) of the Rules of Professional Conduct in the Legal Professional which stipulates that “In his representation of his client, a lawyer shall keep strictly within the law notwithstanding any contrary instruction by his client and if the client insists on a breach of the law the lawyer shall withdraw his service.”
The prosecutorial powers of the State
Having regard to sections 174 and 211 of the 1999 Constitution it is indisputable that the Attorney-General of the Federation and the State Attorneys-General are empowered to initiate, take over or discontinue any pending criminal proceeding. The controversy over the power of statutory bodies clothed with prosecutorial powers to investigate and prosecute criminal cases has been settled by the Supreme Court in Federal Republic of Nigeria v. Osahon (supra) where Pats-Acholonu JSC (of blessed memory) stated that “The implication of the intendment of section 174(1) of aforesaid of the Constitution is that the office of the Attorney-General does not have the monopoly of prosecution though it has the power to take over any case in any court and decide whether to go on with it or not.”
In Nigeria, the federal and state ministries of justice prosecute cases which have been investigated by the police. But in the prosecution of such cases it is always a herculean task to secure the attendance of police prosecutors as they may have been transferred when they are required to give evidence in criminal courts. Owing to the difficulty in ensuring the attendance of investigating police officers in trial courts many serious cases are usually struck out for want of diligent prosecution. Based on the frustrations encountered by the various ministries of justice the parliament decided to warehouse the investigation and prosecution departments of several government agencies including the EFCC. Since the EFCC has secured more convictions than the other agencies which combine investigative and prosecutorial powers the campaign to have it divested of prosecutorial powers is essentially designed to weaken it.
Otherwise the campaign would have been extended to other agencies clothed with powers to investigate and prosecute criminal cases like the Independent Corrupt Practices and other Related Offences Commission, Nigeria Police Force, the Armed Forces, Economic and Financial Crimes Commission, National Food and Drugs Administration Commission, National Agency for the Prohibition of Trafficking in Persons, Nigeria Customs Service, Federal Road Safety Commission, National Deposit Insurance Corporation and Nigeria Drug Law Enforcement Agency. The renewed campaign against the EFCC is not unconnected with its temerity to charge some senior counsel to court for corrupt practices. In a demonstration of solidarity the NBA has mobilized scores of lawyers to defend the accused persons .
However, section 106 of the Administration of Criminal Justice Act, 2015 has stripped lay police officers of the power to prosecute criminal cases in all courts in Nigeria. According to the Attorney-General of the Federation Malami SAN, the Federal Ministry of Justice has received about 8,000 case files from the Nigeria Police Force. Apart from enhancing the quality of justice at the lower courts it will lead to the employment of hundreds of lawyers or firming out of thousands of criminal cases to private legal practitioners. It is hoped that the NBA leadership will ensure that cases in all area and magistrate courts throughout the country are prosecuted by lawyers in accordance with the provisions of ACJA. However, it ought to be noted that the ACJA has not stripped the Nigeria Police Force of prosecutorial powers as legal practitioners in its legal department are empowered to prosecute criminal cases on behalf of the Attorney-General of the Federation.
Executive and parliamentary supervision of the EFCC
Since the combination of investigative and prosecutorial powers by several federal agencies has reduced delay in the prosecution of criminal cases the EFCC should not be stripped of the power to prosecute cases of corruption and other economic crimes in any manner whatsoever. The fear that the prosecutorial powers of the EFCC may be abused is completely groundless. It is on record that out of the over 1000 convictions secured so far by the EFCC none has been questioned or set aside on ground of malicious prosecution. But despite the success of the EFCC it has its shortcomings. On many occasions, it has been indicted by courts for infringing on the fundamental rights of suspects to personal liberty and fair hearing.
However, it is pertinent to observe that the EFCC does not operate without control as the system has put in place constitutional and statutory mechanism for monitoring the exercise of its powers. To prevent the abuse of prosecutorial powers the Attorneys-General are empowered to take corruption cases being prosecuted by the EFCC. The Attorney-General of the Federation is also vested with the power by Section 43 of the EFCC Act 2004 to make “rules or regulations with respect to any of the duties, functions or powers of the Commission under this Act.” Apart from exercising oversight powers over the EFCC the National Assembly is expected to consider the reports of the commission which shall be submitted not later than30th September of each year pursuant to section 37 of the EFCC Act.
In Attorney-General of Ondo State v Attorney-General of the Federation(supra) the Supreme Court that the federal, state and local governments have joint responsibility to fight the menace of corruption and abuse of office. But it is common knowledge that the state and local governments have never involved themselves in the fight against corruption. Indeed, the state governments do not even assist the EFCC ICPc in the investigation and prosecution of public officers and contractors who are alleged to have stolen public funds belonging to state and local governments. Although the fight against corruption is one of the cardinal programmes of the ruling political party the 21 state governments controlled by it have not deemed it fit to team up with the federal government in fighting corruption
President Buhari has questioned the seeming reluctance of Nigerian judges to play a critical role in the fight against corruption. Even from the legal profession many have criticized the helplessness of the courts in dealing with grand corruption associated with politically exposed persons. While the concerns expressed are understandable it has to be realized that the predatory and peripheral capitalism operated in Nigeria has created a peculiar legal system for its sustenance and survival. Hence, Professor Biodun Jeyifo has rightly observed that “our criminal justice system, with regard to the unjustly rich and powerful, is one of the most unjust and irrational criminal justice systems in the world precisely because capitalism Nigerian is one of the worst forms of capitalism in the world.” (The Nation, September 11, 2016).
While the anti-graft agencies and the Attorneys-General should work together in the prosecution of all economic and financial crimes the NBA ought to prevent lawyers from further frustrating the prosecution of corruption cases in the courts. Although the ACJA has substantially addressed the crisis of delay in the prosecution of criminal cases it should be noted that the application of the law is limited to federal courts. Apart from Lagos state and a couple of other states which have reformed their criminal justice system the other state governments have not jettisoned the colonial criminal procedure laws. The NBA may wish to pressurize such state governments to adopt the ACJA in order to fast track the trial of criminal cases in the state courts.
To save the NBA from self inflicted destruction the progressive extraction of the legal profession should ensure restrain bar leaders from giving the dangerous impression that Nigerian lawyers are comfortable with the large scale corruption in the country. As a matter of urgency, the NBA should be retrieved from the overbearing influence of a cabal of lawyers trying desperately to use it to frustrate the prosecution of criminal elements who have willfully inflicted eternal agony on the masses through the criminal diversion of the commonwealth. All patriotic lawyers should ensure that the anti-graft agencies have the autonomy to operate without intrusion from public institutions and private bodies. As corruption will always fight back to protect some vested interests the anti graft agencies should be prepared to collaborate with the trade unions and other mass organisations in the fight against corruption.
Finally, since the ACJA has done away with stay of proceedings and other delay tactics hitherto employed by senior lawyers to stall the prosecution of corrupt people trial courts are enjoined to prevent unending cross examination of witnesses and frivolous adjournments by lawyers. Instead of campaigning for whittling the powers of the EFCC the NBA is urged to join civil society organizations like the Socio-Economic and Rights Accountability Project in monitoring the trial of the mega looters of public treasury. I fully concur with Professor Akin Oyebode that “as priests in the temple of justice, our legal practitioners should live above board and no longer feel comfortable that some of the less than virtuous among them occupy critical and sensitive positions dealing with sanctions and preferment within the Bar.”