Before the dismantling of the EFCC and dispersal of its actors by the Yar’Adua Administration in 2008, the elite circles of the legal profession, some sections of the media, politicians and their sympathisers were up in arms against the EFCC and the ICPC for allegedly violating the human rights of politically exposed persons facing corruption charges, including their detention and trial rights. The anti-corruption agencies were accused of selective justice, trying and defaming accused persons in the media, and mishandling the anti-corruption cases. Many senior lawyers, including the NBA Leadership of that era, actively instigated the then AGF, Michael Aondoakaa, (later to be stripped of his SAN Rank and judicially certified as unfit and unworthy to hold public office), to take over the prosecutorial powers of the anti-corruption agencies. Their contention was that the EFCC, in particular, was abusing its prosecution powers. Their real agenda, however, was to emasculate the anti-corruption agencies and render them impotent in the prosecution of anti-corruption cases.
Just as it was the case in 2007 and 2008, a section of the media has started raising concerns about the way the “EFCC is conducting the anti-corruption cases”. Allegations of media trial, re-arrest after the grant of bail, selective prosecution, and political persecution are being re-echoed. Below is an article we contributed to the law pages of The Guardian newspaper in April 2008, wherein we decried the conspiracy against the prosecution of anti-corruption cases. The article is strikingly apt in the prevailing atmosphere of the “self-rediscovery and redemptive” anti-corruption effort of the EFCC. The article is being republished in full.
The members of the elite circle in the legal profession who are intervening or playing technical litigation pranks to forestall the trial of the ex-political office holders are, as we state above, shortsighted. They ought to realise that enlightened self-interest or rule of self-interest dictates that lawyers should be at the forefront of those crusading for the trial of these ex-public officers.
By the Oath of Office and the Judicial Oath contained in the Seventh Schedule to the Constitution of the Federal Republic of Nigeria, 1999, Executive, Legislative and Judicial Office holders at both the Federal and State levels solemnly pledge to do or refrain from doing many things, including not allowing personal interest to influence official conduct or official decisions. This bit of the Oath, it must be noted, does not fail to acknowledge that public office holders do have personal interests. It only commits them not to allow such personal interests to influence official conduct or decisions. In contemporary governance in Nigeria, it has become apparent that this part of the Oath is difficult to keep in the Justice arena, where the Attorney General is not only the Chief Law Officer of the State but also the Minister of Justice. This is partly because the Attorney General is an appointee of the party or a coalition of the political parties in power.
But even when it is realised that an Attorney General of the Federation and Minister of Justice (AGF) is a person who, in truth, may be fired by the pursuit of a narrow interest of personal accomplishment or instigated by partisan political calculations to occupy a public office, he is not expected to actualise this interest or calculations without having regard to the sworn commitment to preserve, protect and defend the Constitution. It is also not expected that an AGF will, in the pursuit of this interest or calculations, undermine the rule of law, while deceptively phrase-mongering or sloganeering about fidelity to the rule of law. If this is being done by an AGF, as it is the case at the Federal level in Nigeria today, a robust challenge to such conduct ought to be mounted by members of the legal profession: from the Bar, through legal debates, and from the Bench, through generous dicta in judgments, when litigation presents an opportunity to so do, and the occasion warrants that this be done.
Unfortunately, an elite circle of lawyers, in shortsighted pursuit of self-interest, insatiably thirsting for expansion of territory of professional briefs, social influence and economic power, has arisen in the legal profession to join the Attorney General of the Federation (AGF) to distort the concept of the rule of law, in order to justify, defend and promote the exercise of power of the AGF to institute, take over or discontinue criminal proceedings relating to anti-corruption cases, filed by the EFCC, ICPC and CCB or yet to be filed by these bodies. It is being argued by these elite corp of lawyers that the EFCC has been operating largely outside the rule of law and that the powers of enforcement of all economic and financial crimes in Nigeria, granted it by an Act of the National Assembly, impinge on the power of the AGF and the Police Force under the Constitution. This view has, therefore, made it very urgent to examine the concept of the rule of law, as it relates to the exercise of statutory functions of these anti-graft bodies.
The Black’s Law Dictionary (Seventh Edition) at page 1322 defines rule of law as “a substantive legal principle; the supremacy of regular as opposed to arbitrary power; the doctrine that everybody is subject to the ordinary law within the jurisdiction; the doctrine that general constitutional principles are the result of judicial decisions determining the rights of private individuals in the Courts; and, loosely a legal ruling, a ruling on a point of law” From this definition, it is plain that the meaning of the rule of law is not cast in ideological or moral terms. Thus, it is open to distortion, misleading commentary or mischievous manipulation.
Driven by agencies that are relatively young, whose operational excesses, rights invasion or constitutional infractions are curable by judicial intervention, the anti-corruption law in our country today is being enforced within the ambit of the rule of law, contrary to the nihilistic campaigns of subverts of the anti-corruption effort. Progressively, this judicial intervention will yield a large volume of case law, which will dilute the statute-created “government control” and understandable juvenility of these agencies or expose the fault lines in their statutes for future legislative remedy.
The ICPC and the EFCC might have been conceived in the womb of complex, local and international politics (for instance the EFCC, following the global pressure to freeze rogue money worldwide after September 11), but it can no longer be doubted that their birth, growth and current existence have given fillip to the fight against official graft in Nigeria. The ICPC, EFCC and the CCB function specifically within the framework of their respective enabling statutes and generally pursuant to the dictates of the Constitution (the Corrupt Practices and Other Related Offences Act; Economic and Financial Crimes Commission Act; and Code of Conduct Bureau and Tribunal Act). They are vested with broad investigative and prosecutorial powers. The fact that the ICPC and the EFCC are not listed in the Constitution and the Police, Army, Navy, and Air Force are, does not imply that the anti-graft bodies do not have and that they cannot exercise coercive, law enforcement powers. The State Security Service, the National Intelligence Agency, the Directorate of Military Intelligence, NAFDAC, NDLEA, the Customs and Excise, the Immigrations, and the Prisons are either not named in or vested with powers under the Constitution. Yet, no person can seriously argue that they lack coercive, law enforcement powers.
Under the rule of law, the anti-corruption agencies, legislatively or by executive orders, cannot be imbued with, permitted to claim or allowed to exercise arbitrary, irregular or unconstitutional powers. If the law establishing them undermines the rule of law, wholly or in part, the Court will certainly invalidate such law, wholly or in part, as indeed it was the case with the ICPC, in the case of AG, Ondo State v. AG Federation (2002) 9 N.W.L.R) Part 772, 222 where the Supreme Court resorted to the blue pencil rule in nullifying certain provisions of the then freshly passed Corrupt Practices and Other Related Offences Act, 2000. Section 26(3) of the Act had prescribed that prosecution under the Act be concluded and judgment delivered within 90 working days of commencement of prosecution, while Section 35 of the Act had empowered the ICPC to arrest and detain a person who failed to comply with a summons indefinitely until he complied with the summons. The Court held that these provisions were unconstitutional, null and void, in that they infringed on the principles of separation of powers, by which the legislature could not time the duration for the delivery of justice; and the fundamental right to liberty guaranteed by Section 35 of the Constitution. Of course, the legislature must have thought that it was providing for the expeditious determination of trial by inserting the 90 day time frame; for, as it is often said, justice delayed is justice denied. But the Judiciary felt differently. To the Supreme Court, festinatio justitiae est noverca infortunii (the hurrying of justice is the step-mother of misfortune)
The reasoning of the Supreme Court in the AG, Ondo State v. AG, Federation Case might have led the Legislature to tread more carefully in carrying out its duty in the enactment of the EFCC Act that followed the ICPC Act. Rather than provide a time frame for disposition of cases, as it was the case under the ICPC Act, before the said judicial intervention, the Legislature only went as far as enacting under Section 19 (2&4) of the EFCC Act that “the court shall have power, notwithstanding anything to the contrary in any other enactment…. to ensure that all matters brought before the court by the Commission against any person, body or authority shall be concluded with dispatch and given accelerated hearing; adopt all legal measures necessary to avoid unnecessary delays and abuse in the conduct of matters brought by the Commission before it or against any person, body or authority; a court or judge designated by the chief judge to determine cases under the EFCC Act or other related offences under the Act shall give such matters priority over other matters pending before it”. But does this legislative care in Section 19 imply that the EFCC Act is perfect? No. The EFCC Act needs reworking in the areas of composition of the Commission, which tilts heavily on the side of government appointees, thereby undermining the independence of the Commission and predisposing it to undesirable presidential control; mode of appointment of the members; removal of the members, which can be done by the President without the Senate’s ratification, thereby making the members vulnerable and lacking in security of tenure; and enumeration of the AGF’s powers to make rules and regulations for the Commission, thereby foreclosing ministerial mischief and abuse. There are other areas. For example, the Supreme Court may also find it necessary to examine the constitutionality of Section 40 of the EFCC Act, which provides that subject to the provisions of the 1999 Constitution, an application for any stay of proceedings in respect of any criminal matter brought by the Commission before the high court shall not be entertained until judgment is delivered by the high court. The Supreme Court may wish to consider whether this provision does not amount to legislative interference and an undermining of the independence of the Judiciary.
What the Supreme Court did in the AG, Ondo v. AG, Federation case (supra) was to demonstrate that the Judiciary is vested with the power to interpret the law and review exercise of executive powers and administrative decisions. In discharging their duties (including investigating, arresting, detaining, charging or prosecuting any citizen), if the EFCC, ICPC, and CCB or T violate the fundamental rights of any citizen enshrined in the Constitution, including the right to liberty and fair hearing, or violate the rule of law concerning any citizen, such a citizen in entitled to seek judicial remedy in accordance with the provisions of Section 6 (6) b of the Constitution, Section 46 of the Constitution and other provisions in our civil and criminal procedures; and the court is empowered to intervene.
In criminal proceedings, there are steps a criminal defendant could take to put an end to a charge, an arraignment or a prosecution. A criminal defendant could challenge the jurisdiction of a trial court, object to his charge and move to dismiss same for not disclosing a prima facie case, or for being frivolous, oppressive, vindictive and vexatious or for being an abuse of court process. After the end of the case of the Prosecution at the trial, the criminal defendant could make a no-case submission; and even when he is convicted and sentenced, he has a constitutional appellate remedy. If the Prosecution fails to secure a conviction, the criminal defendant could institute a “payback” civil action to recover damages for malicious prosecution.
Therefore, in criminal proceedings and civil litigation, there are abundant remedies against arbitrary or irregular exercise of investigative, charge-preferment or prosecutorial powers of the ICPC, EFCC, and CCB(T). The Court is the institution that is empowered to stop alleged arbitrary exercise of statutory power in the criminal law enforcement chain: from investigation to judgment, and criminal appeals; certainly not the AGF. Once a law enforcement agency comes to a conclusion that a crime has been committed and a trial is paramount, save in appropriate cases where the legal advice of the Director of Public Prosecution or the Office of the AGF is sought, the judicial forum should be the determinant of the reasonableness of that conclusion. And the EFCC and ICPC are not required by law to seek legal advice from the office of the AGF. The AGF is not a court in the executive branch of government, and should not be permitted to put an end to a public prosecution, based on his self-made allegation or ministerial conclusion that in the exercise of its prosecutorial mandate, a criminal law enforcement body is acting arbitrarily. The AGF may be an espouser of the rule of law, but he is not a judicial arbiter on the rule of law.
While the mechanism for checkmating arbitrary exercise of statutory power by law enforcement agencies is inherent in criminal justice administration and is available in civil litigation, the unequal treatment of persons, suspected or accused of infracting the criminal law, by government or law enforcement agencies cannot be easily redressed by crime victims and the public at large. Equality of all before the law, in this instance the criminal law, is as important as supremacy of regular power as opposed to arbitrary power under the rule of law. In spite of the legion of legal maxims and principles underscoring equality of all before the law, making sure that the law treats everybody equally remains an objective, which no human society has fully attained. This is where, in the prevailing circumstances of anti-corruption law enforcement in Nigeria, the AGF ought to concentrate his energy to see to it that every person who has been investigated for corrupt practices and who has a prima facie case to answer, is brought to a fair and expeditious trial, in accordance with the rule of law.
Ensuring that the rich and powerful are brought to justice when they are accused of committing crimes has been a fierce battle in Nigeria. For example, in the eighties, Chief Gani Fawehinmi fought relentlessly to bring those whom he believed are the murderers of his client and friend, Dele Giwa, to justice. The history of that grueling fight, in which many legal principles were refined and redefined, litters many Parts of Nigeria Weekly Law Reports. Sadly, in spite of the effort of Chief Fawehinmi, the murderers of Dele Giwa have not been brought to justice.
However, Nigeria’s Criminal justice history has not always been that of investigative and prosecutorial impotence in the face of riches, authority and power. There were many instances in the past and even recently when the wheel of criminal justice was made to grind against many prominent persons, with varying degrees of charge or trial outcomes. A High Court Judge, Senior Advocates of Nigeria (at the last count, four of them), a former Senate President, Ministers in the Federal Government, a permanent secretary, an Inspector General of Police, Bank Directors, Deputy Governors, Governors, Pastors, an Attorney General (Ondo State), and Commissioners have been charged, tried, discharged or convicted and sentenced in connection with various offences, including murder, in this Country. Heaven did not fall. A former Chief of Army Staff, Commissioner of Police, et al currently are undergoing trial for murder. There should be no reason, therefore, to fear that if former governors or presidents are charged, tried, acquitted or convicted, the heavens will come crashing down.
The members of the elite circle in the legal profession who are intervening or playing technical litigation pranks to forestall the trial of the ex-political office holders are, as we state above, shortsighted. They ought to realise that enlightened self-interest or rule of self-interest dictates that lawyers should be at the forefront of those crusading for the trial of these ex-public officers. In terms of material benefits and growth of practice experience, we stand to gain more if all these ex-public officers are put on trial. With the indicted thirty-two ex-governors list, an indeterminate number of ex-ministers and commissioners, several special assistants, legislators, and local government chairs, there will be a large pool of potential criminal defendants with fat-pockets, who will be ready to pay hefty legal fees to escape convictions and jail terms. So, by opposing these charges and trials, we are militating against a boom period in our trade. We draw attention to this promising revenue earner because if the Yar’Adua Administration makes good its “threat” to fix the electoral process, as it has “threatened” to do, the current election petition briefs may be the last set of such briefs for a long time. And thus, the cash cow of legal practice in Nigeria would have been slaughtered. This is the more reason why lawyers, especially the elite cadre, ought to see the ICPC, EFCC, CBB(T) as allies. These bodies ought to be encouraged to continue to perform their statutory duties, so that more “desperate briefs” can come lawyers’ way.
Sarcasm apart, may we posit that in a constitutional democracy (that we wish Nigeria were) rule of law is not, and cannot be entrenched by a mere escapist resort to media propaganda against alleged violation of the rule of law, by government or its agencies. Rule of law, in the main, is effectively entrenched by confronting government and its law enforcement apparatus in civil and criminal litigations to ensure that the dictates of the rule of law prevail. Any person accused of committing a crime must be willing to dare government or its agencies to establish his guilt, failing which his innocence will become manifest. After all, clear conscience, it is said, fears no accusation. We ridicule our Judiciary when, in trying to avoid charge or trial, we convert it to a theatre for the adjudication of peripheral skirmishes between the state and a criminal defendant, when the real criminal prosecution is held in abeyance.
Corruption in our public life is the clearest, present danger to the corporate existence and well being of our Country today. All “legal” hands must be on deck to fight it. In this connection, we sincerely urge the Body of Senior Advocates of Nigeria to engage the anti-corruption agencies with the aim of volunteering to render legal services, pro bono, to them as prosecutors. This should be easy, given the fact that the chair of the ICPC and EFCC are of the wig fraternity. It was good seeing Chief Debo Akande, SAN (of blessed memory) prosecuting Chief Iyiola Omisore for the murder of Chief Bola Ige, SAN (the slain former AGF and Minister of Justice) and to see another Senior Advocate of Nigeria, on the other side, defending him. A situation where batteries of senior lawyers, argue in court, (as they have the right to do under Rule 7 in the Rules of Professional Conduct in the Legal Profession) against trials of ex-public officers, under the shibboleth of the rule of law, or defend those being tried for anti-corruption cases, while any is hardly seen on the side of the Prosecution is not a good publicity for the legal profession. Wittingly or unwittingly, it gives the impression that the noblest, the best, the most privileged, the most celebrated and respected lawyers in the land are “advocates of the corrupt”; to the consternation of the Middle and Junior Advocates of Nigeria (MANs and JANs), and bewilderment of other Nigerians.
Jiti Ogunye, lawyer, legal commentator, author, and essayist, is the Legal adviser of Premium Times.