WHY THE NIGERIAN GOVERNMENT IS LOSING CORRUPTION CASES - Femi Falana, SAN

Femi Falana, SAN

This is text of a Keynote Address delivered at the Training of Trainer Programme under the auspices of the United Nations Development Programme (UNDP) and Human and Environmental Development Agenda (HEDA) held
at Lagos from 12-14 April, 2017.

Introduction

As a result of the loss of corruption cases last week, many civil society organisations (CSOs) appear to agree with the federal government that corruption is fighting back. However, before engaging in escapism by accusing the judiciary of compromise, it is pertinent to examine the facts and circumstances of the loss of these cases. I shall predict that the federal government stands to lose more corruption cases unless the authorities are prepared to reorganise the anti-graft agencies and review the anti-corruption policy in line with the proposals designed by the Presidential Advisory Committee Against Corruption (PACAC) on the prosecution of politically exposed persons.

Concern Over the Loss of Prosecution Cases

Following a string of court rulings against high profile corruption cases last week, the Socio-Economic Rights and Accountability Project (SERAP) has called on President Buhari to “adopt a revolutionary approach to his government’s fight against corruption by referring high-level official corruption cases to the International Criminal Court for investigation and possible prosecution”. It may interest SERAP to know that I actually submitted a petition to the office of the Special Prosecutor of the International Criminal Court in October 2015 on the same subject matter. My petition had alleged the commission of crimes against humanity by military officers and other police officers who engaged in the criminal diversion of $15 billion earmarked for the procurement of arms and ammunition, which led to the brutal killing of over 25,000 people and the displacement of two million persons by the Boko Haram sect. Even though the petition is said to be receiving attention, I have been reliably informed by a top official of the ICC that the Rome Statute does not cover large scale corruption.



Former President Olusegun Obasanjo has equally expressed concern over the loss of corruption cases by the federal government. While blaming the development on lack of proper investigation and poor prosecution, Chief Obasanjo has asked the government to rely on “ogbologbo lawyers” and stop the practice of farming out corruption cases to external lawyers. With profound respect, the “ogbologbo lawyers” that President Obasanjo has in mind are no longer easy to come by in the public service. Hence, under the Obasanjo administration, both the ICPC and EFCC led by the Honourable Justice Mustapha Akanbi (retd) and Mallam Nuhu Ribadu respectively, engaged the services of external lawyers in the prosecution of many high profile cases. In fact, Mr. Rotimi Jacobs (SAN), an external lawyer, has successfully prosecuted more corruption cases than any lawyer in the country.

Having reviewed the circumstances under which the corruption cases were lost by the federal government, I can say, without any fear of contradiction, that there is no basis for blaming the judiciary. It is also not a case of corruption fighting back. Or if corruption is truly fighting back, it is from the government. From the information at my disposal, the cases were lost due to official negligence and lack of inter agency cooperation on the part of the Federal Ministry of Justice, the anti-graft agencies and the State Security Service. In order to appreciate the basis of my submission, it is pertinent to review the facts of the cases which were lost last week.

1. FRN v Mike Ozekhome

In the course of investigating the criminal diversion of the sum of $2.1 billion from the office of National Security Adviser (NSA), the EFCC claimed that it had traced N2.3 billion to Mr. Ayo Fayose, the governor of Ekiti State. On the basis of the finding, the EFCC applied for and obtained an order ex parte from Idris J. of the Lagos judicial division of the federal high court to freeze the accounts of Mr. Fayose at Zenith Bank. The application to vacate the order filed before the Ado Ekiti judicial division of the court was granted by Taiwo J, but the EFCC also promptly appealed against the newer order.

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However, further investigation revealed that N75 million was paid as legal fee to Mr. Mike Ozekhome, the counsel to Mr. Fayose. At that juncture, the EFCC applied for and obtained an order ex parte to freeze Chief Ozekhome’s account from Anka J. of the Federal High Court sitting in Lagos. The senior counsel applied to set aside the order. In setting aside the ex parte and unfreezing Chief Ozekhome’s account, Anka J. held that he could not sit as an appellate court over Taiwo J. who had ordered that Mr. Fayose’s account be unfrozen. All hope is not lost as the EFCC has appealed to the Court of Appeal to set aside the order of Taiwo which unfroze the account of Governor Ayo Fayose.

2. FRN V Orubebe

The Defendant was charged with criminal diversion of N1.9 billion from the money earmarked for the construction of the East-West road. The ICPC was prosecuting the case. But at the resumed hearing of the matter last week, the Honourable Attorney-General of the Federation filed a nolle prosequi seeking to withdraw the case pursuant to his powers under section 174 of the Constitution. Consequently, the case was struck out while the defendants were discharged. Once the case was discontinued by the prosecution based on the instruction of the Attorney-General, the trial judge had no choice but to strike it out.

3. FRN v Mrs. Patience Jonathan

The EFCC traced the sum of $5.9 million to the account of the respondent. Convinced that the fund was a proceed of crime, the EFCC applied for an order freezing the account. The respondent filed an application to unfreeze the account. As no counter-affidavit was filed challenging the application, it was granted by Olatoregun J. last week. Instead of pursuing an appeal, the EFCC may wish to consider all available options in the circumstance. In particular, an application may be made before the same court praying that the order be set aside based on cogent reasons.



4. FRN v Justice Adeniyi Ademola & Two Ors.

Following the raid on the homes of seven judges last year, the defendants were arraigned in court on an 18-count charge. When the prosecution closed its case, the defendants filed a no case submission. In a marathon ruling delivered last week, the learned trial judge, Okeke J. upheld the no case submission struck out of the case and discharged the defendants. With respect, the learned trial judge ought not to have considered the merit of the case and the credibility of witnesses in the ruling. Having regard to the facts and circumstances of the case, coupled with relevant decided authorities on a no case submission, I am of the strong view that the government has an arguable appeal.

I suggest that the appeal already filed against the ruling of the learned trial judge by the government should be pursued with vigour. My belief in the possibility of the success of the appeal is anchored on the cases of Olawale Ajiboye v The State (1995) 8 NWLR (PT 414) 408 wherein the Supreme Court had this to say:

“It must be recognised that at the stage of a no case submission, the trial of the case is not yet concluded. At that stage, therefore, the court should not concern itself with the credibility of witnesses or the weight to their evidence even if they are accomplices. The court should also at this stage be brief in its ruling at too much might be said which at the end of the case might fetter the court’s discretion. The court should again at this stage make no observation on the facts. (See for example R. v. Ekanem (1950) 13 WACA 108, Chief Odofin Bello v. The State (1967) NMLR 1, R v. Coker & Ors. 20 NLR 62.”

Limited Capacity of Anti-graft Agencies

On a dispassionate consideration of the afore-mentioned cases, it is my submission that the courts cannot be blamed for the official negligence, as well as lack of inter agency collaboration and coordination of the investigation and prosecution of corruption cases by the federal government. On some occasions, the State Security Service has refused to produce accused persons in court without any reason whatsoever. The development has led to unnecessary delays in the prosecution of very serious corruption cases. It is obvious that the federal government wants to eat omelette without breaking eggs. It won’t work. Was it not because the accused persons had put together teams of senior and experienced lawyers that the federal government decided to set up of a national prosecution agency? But as no fund was made available to the agency, corruption cases have not been assigned to the members of the agency. With the virtual collapse of the agency, the anti-graft agencies have been left on their own.

No doubt, the lawyers of the anti-graft agencies are largely industrious and committed to the fight against corruption. With a few investigators and persecutors working under a hostile environment, the EFCC has almost performed miracles! In other words, the investigators and prosecutors are hampered by the lack of experience and exposure. They are also overstretched and overwhelmed. In spite of such shortcomings, the EFCC has secured not less than 200 convictions in the last one year. In fact, some of the convicts are politically exposed persons, including an ex-MD of NIMASA, an ex governor, four former chairmen of local government councils and some fuel subsidy importers. Funds and properties worth hundreds of millions of dollars and billions of naira have been seized and forfeited to the federal government on the orders of the federal high court.

As I did advocate in another forum last year, the military officers who diverted billions of dollars and naira earmarked for procurement of arms and armament should be charged before courts martial “for the serious offences of aiding the enemy, mutiny by impeding or sabotaging the counter insurgency operations and stealing of public funds in contravention of sections 45, 52 and 66 of the Armed Forces Act. The proposed trial before such military courts will meet the justice of the case and the expectations of the public. More so, that the Rules of Procedure applicable in courts-martial have no room for frivolous adjournments, motions for bail, interlocutory appeals and preliminary objections.” With the handling of cases of indicted military officers by experienced military police investigators and prosecutors before courts-martial, the lawyers serving in the anti-graft agencies will have more time to concentrate on other cases.

Illegal Opposition To Bail Applications By Anti-graft Agencies

One of the reasons why I have never prosecuted for the anti-graft agencies is the lackadaisical attitude of the government to the prosecution of corruption cases. I also cannot support the media trial of criminal suspects and the official policy of opposing the bail applications of criminal suspects. In Ameh Ebute V State (1994) 8 NWLR (Pt 360) 66 it was held that a suspect who submits himself to the police voluntarily is entitled to bail. In Ibori v. FRN (2009) 3 NWLR (pt 1127) 96 the Court of Appeal held that a person accused of economic crime is entitled to bail. Both decisions are binding on all authorities and persons, including all trial courts and prosecutors.

Yet, the anti-graft agencies direct lawyers to oppose all applications for bail filed by suspects who might even have been granted administrative bail by them. Why should a serious lawyer go to court to ask a judge to lock up a suspect who has been granted bail and has never interfered with the investigation or attempted to jump bail? Instead of saving precious time and resources by asking for hearing dates, prosecution counsel prefer to file copious counter-affidavits and written addresses in opposition to bail applications of accused persons.

Since bail has become automatic in the country, let the anti-graft agencies stop opposing bail applications filed by suspects unless there are genuine grounds for filing these objections. Bail should not be opposed as an official policy of a responsible government. The government should stop playing into the hands of some persons accused of criminal diversion of public funds by refusing to comply with the orders of courts admitting them to bail. For some inexplicable reasons, the government has refused to comply with the orders of the ECOWAS Court, the FCT High Court and the federal high court to the effect that the former National Security Adviser, Col. Sambo Dasuki (rtd) be admitted to bail. In a similar situation, the federal high court did not allow the government to arraign Commodore Umar Mohammed (rtd) until the order admitting him to bail was complied with.

The Buhari administration has directed the anti-graft agencies to ensure that corruption cases are not lost again. It is doubtful if the federal government is aware of the limited capacity of the anti-graft agencies. For instance, the ICPC receives an average of 100 petitions daily. The EFCC receives many more petitions from members of the public. Yet, the current EFCC leadership inherited a staff strength of 2,173. Even with the plan to engage 750 more staff, the EFCC will still have less than 3000 staff. The implication is that with such a few investigators and prosecutors, the success rate of the agency is bound to be extremely limited.

While the concern of President Buhari is appreciated, it ought to be pointed out that without adequate funding of the anti-graft agencies and motivation of investigators and prosecutors, many more corruption cases are going to be lost to accused persons who have access to well prepared and well paid teams of lawyers. The British government spent millions of pounds on the investigation and prosecution of a former state governor from Nigeria. If the government is genuinely desirous of winning corruption cases, it should be prepared to invest in the anti-graft agencies. The British government was reported to have spent about £20 million pounds on the investigation and prosecution of the said former state governor from Nigeria. As a matter of urgency, the government should immediately set aside part of the recovered loot to fund the investigation and prosecution of corruption cases.

Autonomy of Anti-graft Agencies

It was recently reported that the EFCC had submitted a report of the investigation of the criminal diversion of N19 billion from the London/Paris Club loan refund by some governors. Other reports of serious economic crimes have also been submitted to the presidency by the EFCC. It is my submission that the practice of submitting reports of the investigation of economic crimes to the presidency or any other authority should stop, as it is not provided for under the EFCC Act. It is not even in the interest of the presidency as it may give the impression that the anti-graft agencies are being used to settle political scores. In order to discharge their statutory functions effectively, the anti-graft agencies should be freed from executive control and interference.

It has been observed that the majority of the board members of the anti-graft agencies are appointed from some ministries and departments of the federal government. It is my humble opinion that the constitution of the boards makes them susceptible to government influence and control. It is therefore suggested that the boards should be composed of nominees of credible civil society organisations like the Nigerian Bar Association, International Federation of Women’s Lawyers (Nigerian Chapter), Nigerian Union of Journalists, Nigeria Labour Congress, the Nigeria Police, Institute of Chartered Accountants, Federal Executive Council and representatives of private anti-corruption organisations.

It is not in doubt that there are adequate opportunities within the system to expose and shame corrupt people. It is noteworthy that a few CSOs are taking advantage of the openings in the system to expose corruption. For instance, SERAP has obtained a court order to compel the federal government to disclose the recovery of looted wealth and asset recovered since May 1999. Similarly, LEDAP has obtained a court order to compel the National Assembly to disclose the salaries and allowances of all federal legislators. A few other CSOs have secured court orders to compel the disclosure of information on contract sums in respect of certain projects. Since the commitment of the federal government to the anti-corruption policy cannot be taken for granted, CSOs owe it a duty to mobilise the Nigerian people to take over the fight against corruption and own it.

Recovery of Looted Wealth

In a letter addressed to the minister of Finance, Mrs. Kemi Adeosun in March 2016, I pleaded with the federal government to recover about $100 billon withheld from the federation account or stolen from the public treasury by local and foreign economic saboteurs. In the letter I sent out the details of the recoverable funds. In particular, I asked that the sum of $30 billion withheld by the Nigerian National Petroleum Corporation (NNPC) be recovered and paid into the federation account. Apart from acknowledging the receipt of the letter, the government has not acceded to my request. However, in the 2016 annual report presented last week at Abuja, the National Extractive Industry Transparency Initiative (NEITI) revealed that the NNPC and NPDC have withheld the sum of $21.7 million and N316 billion from the federation account.

On that occasion, the NEITI Executive Secretary, Mr. Waziri Adio, recommended to the federal government to recover the amount due and channel it to stimulate the economy. To ensure that the report is not treated with disdain by the federal government, I am compelled to call on the Attorney-General of the Federation to initiate legal proceedings for the recovery of the fund pursuant to section 3 (f) of the NEITI Act, 2007, which imposes a duty on the government to “monitor and ensure that all payments due to the Federal government from all extractive industry companies, including taxes, royalties, dividends, bonuses, penalties, levies and such like, are duly made.”

On the eve of an anti-corruption summit in London last year, the then British Prime Minister, Mr. David Cameron described Nigeria as a “fantastically corrupt” country. President Buhari reacted by requesting the British government to return the country’s wealth which has been looted and kept in the United Kingdom. Mr. Cameron has since left office without taking up President’s Buhari’s challenge. In the same vein, the immediate past president of the United States, Mr. Barack Obama never fulfilled his promise of assisting Nigeria in the recovery of her looted wealth. As the beneficiaries of grand corruption will not assist the victims, the federal government should set up a team of lawyers to pursue to recovery of the looted wealth warehoused by Western countries and the United Arab Emirates.

Instead of embarking on the aggressive recovery of the looted wealth of the nation and the huge fund withheld from the federation account, the federal government has opted to mortgage the destiny of the nation by taking jumbo loans from China, the World Bank and the African Development Bank for infrastructural development. It has also been reported that talks have reached an advanced stage in the negotiations for a loan of $1.4 billion from the International Monetary Fund (IMF), with dangerous conditionalities, including the further devaluation of the beleaguered national currency. The CSOs should mount a vigorous campaign against the pauperisation of our people through indiscriminate external indebtedness.

Immunity for Corrupt Public Officials?

President Buhari has said that corruption is fighting back. This is not unexpected given the enormous resources in the soiled hands of the politically exposed persons who have been investigated or charged to court by the Economic and Financial Crimes Commission and the Independent and Corrupt Practices and Other Offences Commission. However, the federal government too has joined the forces of corruption by frustrating the anti-graft agencies from prosecuting indicted public officers. Even though the government has repeatedly assured the Nigerian people that there are no sacred cows in the fight against corruption, the presidency has casually dismissed serious allegations of corruption and abuse of office by certain public officers.

When a serving minister was implicated in the report of the procurement of arms and ammunition, the federal government claimed that the probe panel had not concluded its assignment. Was the panel not disbanded thereafter? When a top army officer was accused of buying properties beyond his legitimate income, did the Code of Conduct Bureau not absolve him without conducting any investigation? When the Senate indicted the secretary to the federal government, Mr. Babachir David Lawal over his involvement in the criminal diversion of about N200 million set aside to cut grass in the camps occupied by internally displaced persons in the North-East region, did the federal government not say that he was not given fair hearing!

Over six months ago, seven judges were arrested after the raid of their official quarters by operatives of the State Security Service. Only two of the judges have been charged to court even though the nation was informed by the State Security Service that the government had water tight evidence of corruption against them. If there is no evidence to back up the allegations of corruption against the judges, why have they not been cleared and allowed to resume duties? Meanwhile, the judge who was alleged to have kept a bribe $2 million in his official residence has not been subjected to any interrogation. Even though his arrest was botched by the governor who was alleged to have given the bribe, why has the judge not been questioned?

It was announced last year that the National Judicial Council has dismissed a judge of the high court of Kano sState for allegedly receiving a bribe of N197 million from a litigant and retired a Justice of the Court of Appeal for demanding a bribe of N200 million in an election petition. Why have both of them not been arraigned in court by the Attorney-General of the Federation? It is public knowledge that two Senior Advocates of Nigeria are currently standing trial in the Lagos high court for allegedly bribing four judges, including a Justice of the Court of Appeal. Why has the EFCC refused to charge the indicted judges to court for receiving bribes from both lawyers? I hope it is not true that the indicted judges are not going to be charged to court on ground of primordial considerations!

Conclusion

In x-raying the loss of corruption cases by the anti-graft agencies, it has to be realised that the ruling class did not enact anti-corruption laws out of its own volition but due to pressure from the victims of economic and financial crimes and the Financial Action Task Force (FATF), which had blacklisted the country. Because of the credibility of the EFCC under Mallam Nuhu Ribadu, a number of funding agencies in Western countries contributed to the training of the agency’s investigators and prosecutors. Unfortunately, the EFCC lost its trained and committed personnel when it was taken over by powerful criminal suspects in connivance with a former Attorney-General of the Federation. Under the pretext of fighting corruption in line with the rule of law, they castrated the EFCC. It is going to take some time to rebuild the Commission because the damage is enormous.

Finally, realising that there are powerful forces in the public service who are currently profiting maximally from corrupt practices, the government cannot be fully relied upon in the fight against the menace of corruption. However, CSOs can take advantage of the political will of the nation’s leadership to push for radical reforms in the fight against corruption. But in order to promote public accountability CSOs should link up with the labour movement and other popular forces. It is only when that has been done that the Nigerian people can frustrate the agenda of the government to shield corrupt members of the ruling class from prosecution. The mobilisation cannot afford to wait!

Femi Falana, a Senior Advocate of Nigeria (SAN), writes from Lagos.


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