Femi Falana

By Femi Falana

Introduction

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 2nd Respondent, 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.