© 2018 - International Centre for Investigative Reporting
How Nigeria’s Attorney General Works Against Anti-Corruption War
By Yekeen Nurudeen
Many lawyers see the recent rash of withdrawal of high profile cases from court by Attorney General of the Federation as jeopardizing the campaign against corruption
In the space of four days, the government has lost several high profile corruption cases in the courts, some because the prosecution withdrew the charges and others due to lack of diligent prosecution or inability to establish a prima facie case..
One of the most embarrassing losses is the case against former Minister of Niger Delta, Godsday Orubebe, who was charged with a N2 billion fraud in the contract for the dualization of East West road Section IV Eket Urban, in Eket Local Government of Akwa Ibom state.
The Independent Corrupt Practices Commission, ICPC, had charged the former minister and others, including Gitto Construction Limited, before the Federal High Court Territory, FCT, High Court for their role in the alleged contract scam.
Others that were charged alongside Orubebe in the case were an assistant director at the ministry of Niger-Delta Affairs, Oludare Davis Alaba, and the director of contracts, Gitto Costruzioni Generali Nig Ltd, Ephraim Towede Zari.
Orubebe has celebrated his victory in the media berating the ICPC for cooking up charges against him to the embarrassment of the federal government. But the truth is that the law court was never allowed to hear the matter as the AGF curiously withdrew the case in spite of the fact that Gitto accepted that it collected the money allegedly misappropriated.
The federal government had, through the Niger Delta Ministry, awarded the road contract and was supposed to also pay a compensation of N2.3 billion compensation to the people whose properties were marked for demolition. But neither was the compensation paid nor the dualisation of the road done even though about N37 billion was released by the federal government.
The case against Orubebe appeared to be water-tight, much to the joy of the people of Eket who hoped for justice on the matter. But on April 4, 2017, their joy turned to anger when Justice Olukayode Adeniyi of the FCT High Court discharged and acquitted Orubebe and the others of all the six count charges based on a withdrawal of charges by the ICPC. It was a shocking volte-face, and one that clearly undermines the anti-corruption fight of the Buhari administration.
This website learnt that the withdrawal of charges was at the instance of the Attorney General of the Federation and Minister of Justice, Abubakar Malami who in a letter to the chairman of ICPC stated that the N1,965,576,153.46, which Orubebe allegedly diverted, had not been touched, “but is awaiting further contract decisions and directives from the Ministry of Niger-Delta Affairs.”
The basis on which the case was struck out has been condemned by people of Eket local government who felt that the AGF has been frustrating the administration of criminal justice in the country with some of his recent actions and directives.
In the AGF’s letter to the ICPC chairman signed by the Director of Public Prosecution, DPP and dated December 16, 2016, which was obtained in court, the state said that “the basis for the prosecution of the accused persons for misappropriation does not exist and thus, further prosecution cannot be justified.”
The charge was withdrawn same day the court asked the ICPC to produce its witnesses to establish that Orubebe actually diverted funds meant for the compensation of owners of properties on Eket urban section of the East-West Road.
“We are not happy and we won’t relent until the road is constructed”, said a furious Udoeno Akpensien, a youth activist in the community.
Akpensien who had led the campaign for justice against Orubebe and the contractor said the people are disappointed that the case was struck out.
“They are forcing us to react illegally as our brothers in the Niger Delta region. The Minister of Justice is taking the peaceful nature of people of Eket and Ubong for granted,” he warned.
“The AGF should be summoned and questioned on all these numerous letters raised by him to anti-graft agencies which have bedeviled the war against corruption”, he added.
Many lawyers had expressed misgivings last year when the AGF directed that all prosecutorial agencies should compile all high profile cases they were handling and forward the files to his office.
Our reporter gathered that the Director of Prosecution in the AGF’s office has since that directive been writing to the anti-graft agencies requesting for files of high profile cases.
In one of such letters obtained by icirnigeria.org which has just three paragraphs, the DPP wrote “I’m to request you to forward the case file to this office to enable this office make an informed decision”.
According to a lawyer prosecuting one of the high profile cases, what “informed decision” connotes in the letter is unclear..
The withdrawal of Orubebe’s case from court and the eventual acquittal of the former minister and those charged alongside him have raised concerns among Nigerians and given clear meaning to the ‘informed decision’ being referred to in the letters from the AGF’s office.
Besides the Orubebe case, the forgery allegation case against the Senate President, Bukola Saraki and his Deputy, Ike Ekweremadu, has also been withdrawn by the federal government. This, analysts think, is a red flag for an administration that gained international attention through war against corruption.
But apart from high profile cases, worryingly, the AGF is also requesting for files on common criminal cases, leaving many tongues wagging as to why he is interested in such cases.
For example, investigations show that the DPP has written to request for files on the corruption cases against principal officers of the Federal Polytechnic, Oko as well as the one against one Bello Raufu Akano, being prosecuted by the ICPC.
There is suspicion that Akano, who has evaded prosecution by failing to appear in court, might have used his influence to initiate the takeover of the case, prelude to the withdrawal the charges against him.
Akano, who claims to be a travel agent, is facing criminal charges relating to visa procurement scam at the Federal Capital Territory High Court, Abuja. He was arraigned on November 30, 2015 on a seven-count charge of possession of forged documents contrary to Section 368 of the Penal Code Act and making false statement to a public officer contrary to Section 25(1)(a) of the Corrupt Practices and Other Related Offences Act 2000.
The case had suffered several adjournments because Akano failed to show up in court, forcing the trial judge, Justice U.P Kekemeke, of the Federal Capital Territory, FCT, High Court, to order the ICPC to arrest and produce him in court.
However, to the utmost surprise of many lawyers, including the prosecutor and the judge, when the case came up for hearing on May 12, 2016, M.C. Obilor, a senior counsel who represented the AGF, told the court that the chief law officer of the nation was taking over the prosecution of the case.
Obilor said that the AGF had written to the ICPC to handover Akano’s case file to the ministry and hands off. Appearing for the ICPC, Isaac Jiya, confirmed to the court that the AGF had, indeed, written the commission asking it to hand over the case file.
The development got many tongues wagging as some lawyers said it was curious that the Attorney General would be interested in this kind of criminal case, particularly as it involves diplomatic relations with foreign countries. To strengthen suspicion, the office of the AGF has discontinued with the case,
Like Adoke, like Malami
Malami is not the first AGF to initiate take-over of corruption cases from prosecuting agencies. His immediate predecessor, Mohammed Adoke, also had a penchant for this same show of prosecutorial authority.
Adoke was criticized for his alleged penchant for dumping high profile criminal charges against very privileged persons and Politically Exposed Persons, PEP. But the former minister always argued that he took charge of some of the cases handled by EFCC and ICPC because they had prosecutorial defects. This is the same ground Malami has used to take over cases of PEP under the current administration.
The withdrawal of the case against the Anosike brothers (Fidelis and Noel) received a lot of flak from observers. This was so because the presiding judge, Patricia Ajoku, rejected Adoke’s request to drop all charges against the Anosikes.
The Anosikes were dragged before Ajoku for conspiracy and stealing of over N3 billion worth of properties belonging to Daily Times of Nigeria. Justice Ajoku held that while it is true that the Attorney General has power to withdraw a criminal charge against any person under Section 174 (1and 2) of the 1999 Constitution, that power under sub section 3, must be exercised in public interest and to prevent abuse of legal powers. Apparently Ajoku was of the view that Adoke’s application was not in the ‘public interest’.
Within the last eight months of his tenure, Adoke reportedly withdrew about 25 high profile cases eliciting criticisms from the human rights community.
Notably among these cases are the Halliburton bribe scandal, the National Electricity Regulatory Commissioners’ scandal, the trial of Kenny Martins over Police Equipment Fund cash, the Siemens scandal and others.
He cited series of anomalies in cases handled by the EFCC and the ICPC as reasons why the Ministry of Justice and the office of the Attorney General decided to take over most of the high profile criminal cases.
He stated that he was particularly prompted by a petition written by Chief Kanu Agabi, a former Attorney General and Minister for Justice alleging flagrant abuse of due process by the EFCC in the case involving the Vaswani Brothers and other employees of the Stallion Group. Interestingly, Agabi was instrumental to the establishment of the EFCC.
Making Mockery of war against corruption
The withdrawal of and dismissal of corruption charges against some persons and the failure of the Buhari administration to deal with alleged corrupt aides have exposed the administration’s anti-corruption fight to ridicule.
Reno Omokri, an aide of former President Goodluck Jonathan who would not spare anything to castigate the Buhari administration took to Facebook celebrating the court clearance of Orubebe and Justice Ademola, and taunting the government for shielding Secretary to the Government of the Federation, SGF, Babachir Lawal, who was said to have violated public service rules by awarding contracts to his company.
In a Facebook Post, Omokri wrote, “First Orubebe, now Justice Ademola. The courts are dismissing these trumped up charges. Until Babachir is charged, the anti-corruption war is a sham!
“How can the President wine and dine with Babachir Lawal, a man caught red handed in corruption and unleash the EFCC on opposition figures like Orubebe and the judge trying his certificate scandal?
“Perhaps President Buhari will now instruct EFCC to charge Kola Awodein, one of the 13 SANs defending him from showing his WASSCE certificate. After all, Awodein admitted giving Ademola a ‘gift’ of ₦500k while President Buhari’s matter was before Justice Ademola”.
Last Wednesday, Buhari suspended Babachir Lawal and constituted a committee headed by Vice President Yemi Osinbajo to probe him and Ayodele Oke, the Director General of the National Intelligence Agency, NIA, who was also suspended from office over the discovery of huge cash in a house in Ikoyi Lagos which he claimed belonged to NIA.
Although the war against corruption gained momentum when President Buhari took over power almost two years ago, particularly with the arrest of a number of prominent Nigerians over allegations of corruption, the war is however fast losing steam.
While inaugurating the National Prosecution Coordination Committee, NPCC, Malami had said that the aim is “to ensure effective investigation and prosecution of high profile criminal cases in Nigeria.”
Even when his action generated concern in many circles, Malami argued that the decision was intended to facilitate synergy between the prosecuting agencies and the office of the AGF in the handling of cases. He emphasized the fact that the agencies lack adequate manpower to handle the cases.
But his decision unsettled not a few prosecutors in those agencies; they were frustrated and expressed reservations on the possibility that the AGF might want to use the NPCC to free some of his political allies who are being investigated.
Mahmud Abdul, a legal practitioner and President of the Public Interest lawyers League, PILL, also expressed the same fears.. Abdul, an expert in constitutional law described the decision of the AGF as one that portends danger for the anti-corruption war. Though he admitted that the Attorney General has the constitutional power to prosecute and discontinue any case, he stressed that the directive that all prosecutorial agencies should hand over cases considered high profile might let criminals off the hook.
Citing the case of N2.2billion bribery allegation against the Registrar of the Supreme Court, Ahmed Saleh, Mahmud argued that Saleh who has been cleared of the charge on the ground that he might be used as a state witness in the case against the Supreme Court judges who were accused of corruption may eventually walk away with the charge without even standing as a witness in any case.
“In the aftermath of the swoop on judges of the Supreme Court and judges of the Federal High Court, don’t forget that the DSS alleged that they had a fishy arrangement with the Supreme Court.
“That Ahmed Saleh was the go between the Justices and those who are bribing the Judges of the Supreme Court. They also alleged that a sum of N2.2billion was also found in his account or alleged to have been stolen by him. He was charged to court in November. Late January, a nolle prosecue was entered by the Attorney General, quashing the charge, withdrawing the charge, let him go free.”.
“When questions were asked, lawyers in anti-corruption agencies however expressed surprise by the action of the AGF but they also said that it could be a tactic by the AGF to use Saleh as a star witness in a subsequent case.
“That was what the lawyer who represented the AGF in court told the media. That he would be used as a state witness. But even this excuse is not legally tenable, as a plea bargain cannot be used to mask criminal responsibility.”
Reacting to the setting up of the NPCC by the AGF to handle high profile cases, Mahmud also faulted the committee which he described as a “shoddy committee” arguing that the “AGF Bar” often referred to as “Public Bar” is the biggest “Law Bar” in the country with adequate manpower.
In essence, he argued that the AGF had enough lawyers in his “chambers” to prosecute all the cases his office might have to handle and that setting up the committee was unnecessary.
There are fears also that the indiscriminate request for take-over of corruption cases by the AGF and the subsequent withdrawal of charges or loss of case will kill the eal and enthusiasm of the anti-corruption agencies. This much was evident when the icirnigeria.org interviewed staff of these agencies.
“Do you think our operatives, who carry out painstaking investigations, and others who work assiduously to draft charges, will be happy that this is happening?” asked one of the lawyers in EFCC.
He observed that instead of taking over cases from these agencies, the AGF should have devised ways to strengthen them to be more effective.
Mahmud agrees: “So if the present AGF truly has interest in the expedition of corrupt cases, what he should have done is to effectively increase the manpower of each department and of the DPP’s office. And each department and DPP’s office will now coordinate the Police, NDLEA, Customs, ICPC, EFCC, Code of Conduct and the Nigerian Civil Defence.
“These are seven statutory bodies allowed by law to make arrest and bring prosecution and which invariably means that they can also charge people for corruption matters. We just need an AGF that would increase the effectiveness of these agencies across the board.”
But in the opinion of a former chairman, Governing Council of National Human Rights Commission, NHRC, Chidi Odinkalu, there must be routine coordination between the agencies and the office of the Attorney General of the Federation in the handling of high profile corruption cases.
He, however, cautioned that there must also be a mechanism to ensure that constitutional power of the AGF to prosecute and discontinue any prosecution does not extend to meddling in the work of the agencies for political purposes.
“I know there have been credible allegations that this has sadly happened in previous administrations. My view is that this calls for attention to the quality of occupants of the office of the AGF” said Odinkalu,.
Femi Falana, lawyer and human rights activist, argued that since the combination of investigative and prosecutorial powers by several federal agencies has reduced delay in the prosecution of criminal cases, the Economic and Financial Crimes Commission, EFCC and other agencies 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.” He said
Falana, who has always campaigned against striping EFCC and other agencies of their prosecutorial powers, had warned in the past that such action could shield those who plundered Nigeria’s commonwealth.
He noted also that despite the provisions of Sections 174 and 211 of the 1999 Constitution that empower the AGF to initiate, take over and discontinue any criminal proceedings, he does not have the monopoly of such powers.
The human rights lawyer said that 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 Vs Osahon (supra) when Pats Acholonu stated that “the implication of the intendment of Section 174 (1) of aforesaid of the Constitution is that the Office of the Attorney General of the Federation 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 with it or not”
In Defence of Malami
Rather than the reservations and misgivings that trailed the setting up of NPCC, Malami’s Special Assistant on Media, Salihu Isah, says he deserves commendation.
He explained that the NPCC was initiated by the Attorney General to support his constitutional duties, especially with regards to handling of high profile cases.
The committee comprises of 20 members out of which 12 are ex-officio members while the minister is the Solicitor General and the Permanent Secretary is the Vice Chairman, the Director of Public Prosecution is also a member and then we have Special Assistants who are also members. So there are 12 ex-officio members and eight from outside; some of whom are consultants within and outside Nigeria.
In his reaction to the issue, Slvester Imhanobe, Special Assistant to the President on Research and Special Projects and Secretary of NPCC said the main mandate of the committee is to look at high profile cases.
“We generally advice the AGF on the discharge of prosecutorial powers and along this line, so far, we have handled three,” he said
The committee, he noted, has handled the much talked about senate forgery case against Senate President Bukola Saraki and his deputy, Ike Ekweremadu, adding that the case was withdrawn because some of the matters predate the current administration.
“We handled the Senate forgery case. That was our first case. We also are handling the prosecution of the judges. The Ademola case was handled by one of our teams; it was led by Segun Jegede and we are also handling the prosecution of Justice Sylvester Oguta.
“Be that as it may, one thing that has come out of our prosecution which the public must applaud is that we have shown that a prosecutor is not a persecutor.. Part of code of conduct for prosecutors is that a prosecutor is not a persecutor. That is one thing that we must take from this new system to the public realm.
Imhanobe who admitted that the government was not comfortable with the way prosecutors with anti-corruption agencies were handling cases, noted that the capacity of prosecutors to handle cases is one of the challenges facing the committee.
“What we are doing now is that we are profiling these cases. There are a lot of documents to go through, some of them we have sent them back for further investigation because you could see a file, if you look at the former system by now we would have been seeing all those they are charging. Ibori was having 156 counts.”
Under the new system, he said that the AGF though, the chairman of NPCC, does not interfere with cases, rather, teams under the Committee handle each case.
“The AGF is the chairman of the committee quite well; he totally leaves everything to the private person who heads that team. The in-house person does not have any control over cases. It is led by external member. When we find out that a member or a prosecutor is not fit to continue may be for conflict of interest or whatever, we stop him and remove such a person from the team”.
But Nigerians are watching keenly how the AGF would ensure that the cases taken over are handled in the public, and not personal interest, as the constitution stipulates.