‎Worrying Signs for the Anti-Corruption War

Last week, the government’s fight against corruption ‎was dealt major blows by the judiciary. In quick succession, it lost four major cases in courts. Tobi Soniyi examines the implication of this for a government which was swept into power ostensibly by  its promise to fight corruption

Whichever way you look at it, last week was a bad week for the government’s fight against corruption. As if they were programmed, four courts in quick succession gave damning rulings against government.  

On Monday, Justice Abulazeez Anka of a Federal High Court in Lagos vacated a freeze order on the account of a Senior Advocate of Nigeria, Mike Ozekhome, after initially ordering a temporary forfeiture of N75 million found in Ozekhome’s Guaranty Trust Bank account.

The Economic and Financial Crimes Commission (EFCC) had sought a freeze order on the account alleging it to be proceeds of crime.

On Tuesday, an Abuja High Court sitting at Apo District of the Federal Capital Territory struck out a six-count charge filed against a former Minister of Niger Delta Affairs, Elder Godsday Orubebe by the Independent Corrupt. Practices and Other Related Offences Commission (ICPC). Orubebe was accused of diverting N1.9billion meant for the compensation of owners of properties affected by the construction of the East-West Road in Eket, Akwa Ibom State.

On Wednesday, another High Court of the Federal Capital Territory discharged a judge of the Federal High Court in Abuja of all 18-count charges of fraud brought against him, his wife and a senior lawyer.

The judge, Adeniyi Ademola, and his wife, Olabowale, as well as amSenior Advocate of Nigeria, Joe Agi, were accused of bribery involving huge sums, ranging from local and foreign currencies, possession of firearms and involvement in illegal collection of gratification.

On Thursday, a Federal High Court in Lagos issued an order un-freezing the Skye Bank account of a former First Lady, Patience Jonathan which allegedly has $5.8 million. The EFCC had in November 2016 filed an application before the court seeking an order freezing the account. The commission had contended that the funds were reasonably suspected to be proceeds of crime. 

In what appeared to be a panic sign, the Presidency on Thursday summoned a  meeting of prosecuting agencies with the Vice President, Professor Yemi Osinbajo. The meeting was attended by the National Security Adviser, the Director General of the Department of State Security, the Attorney-General of the Federation, the Inspector General of Police, and the Acting Chairman of the EFCC.

The panic reaction did not stop there. Even when the prosecution has yet to get a copy of the judgment dismissing the charges against Justice Ademola for analysis and for the purpose of filing an appeal, a source in the Presidency issued a statement claiming that an appeal had been filed against Justice Okeke’s judgment when in reality no such appeal had been filed.

The Chairman of the Presidential Advisory Committee Against Corruption, Itse Sagay described the string of court decisions against the corruption cases as “worrying.”

Sagay said the courts’ decisions call for a deep reflection.

He said: “Definitely, I’m worried. It’s a complex matter that will need a lot of reflection. But what I can say, generally, is that all those involved in the anti-corruption struggle should not be discouraged, they should continue to do their best.”

When government loses a case on corruption, the usual reaction is that corruption is fighting back. But for an Abuja based lawyer, Mr Abdul Mohammed such a response is pedantic.

He said: “The usual reaction is that corruption is fighting back. With respect I think, those  views are pedantic, pedestrian and devoid of the actual knowledge of the circumstances leading to these turn of events.

“First I think these events indicate that the judiciary is independent and not an appendage of the executive. This should be pleasing to all lovers of constitutionalism and rule of law. Take for exampl, the Justice Ademola’s case, from a careful reading of the ruling of the court on the no case submission, it could be discerned that the prosecution witnesses admitted for instance that they are aware Justice Ademola inherited the sum of $520,000 from his late father and grand father, they admitted that a license was produced for the guns, they admitted that Joe Agi SAN did in fact get instructions from Justice Ademola’s former clients, whilst the judge was in practice, to pay the sum of $150,000 to him, as their contribution for his daughter’s wedding and these clients had no case pending before the judge and Joe Agi got rulings against his own clients at the same time. There were many other defects in the prosecution’s case as revealed from the ruling.

“What this shows is that the prosecution actually rushed to court without proper investigation of the case. 

 “On the order unfreezing the accounts of Mrs Patience Jonathan, the order is quite proper in view of the fact that the evdience before the court was that Mrs Jonathan was not a party on the records, to the suit wherein the application was made to freeze the account in the first place. She was not named as a defendant against whom the ex parte order was made. The late MKO Abiola was quoted to have said, you cannot shave a man’s head in his absences, in this case a woman, all pun intended. The EFCC, if it feels strongly about the allegation that the funds in the accounts are proceeds of crime, could apply for a freezing order with the right party stated on the face of the application. Thus this ruling cannot be considered a set back at all rather one which shows a penchant for due process of the law.

“Ditto the order unfreezing Mr. Mike Ozhekome’s account. Evidence was led to show that the funds were paid into his account after they have been unfrozen by order of court in respect of the source, being Ayo Fayose’s account.

On the withdrawal of charges against Orubebe, Mohammed said the ministry of justice should be commended.

According to him, the decision has shown that the fight against corruption was not a witch-hunt against perceived enemies.

He said:”That case  was withdrawn because the Director of Public Prosecution , by a letter advised the prosecutors that the funds thought to have been embezzled have been found in one of the accounts. Thus, this should not be considered as a set back at all. But must be taken as a case of hasty decision to prosecute and a penchant for media trial.”

He advised law enforcement agencies to be more diligent and to avoid media trial.

No one should be surprised that things are turning out this way because the signs have always been there that some of the cases were not properly investigated and that some of the decisions to prosecute were purely political and not aimed at advancing the fight against corruption.

Before now, the justice minister was forced to withdraw an incompetent charge filed against the Senate President, Bukola Saraki and his deputy, Ike Ekweremadu. They were charged with forging the Senate Rules even though there was no evidence to support the charges. It took courage to admit this unforced error.

Not long ago, a Federal High Court had to discharge the order for the forfeiture of Oil Prospecting Licence 245 (Malabu Oil and Gas case) as the order was granted without cognisance of the right of third parties.

Any discerning observer would have observed that some of the decisions to prosecute are either based on rush judgment or motivated by vendetta. The case against Saraki before the Code of Conduct Tribunal has been amended not less than five times. Although the law allows these amendments, doing so so frequently could only mean one thing: the case was rushed before the tribunal or was meant to embarrass the Senate leadership. 

The response of the AGF, Abubakar Malami, SAN to allegation by Justice Ademola that the decision to prosecute him was a result of the feud between him and Malami while he was sitting in Kano which affected Malami’s chance of becoming a Senior Advocate of Nigeria was not reassuring. The decision of the court appeared to have validated the allegation.

An author and a Senior Advocate of Nigeria, Chief Sebastine Hon beleived that the investigation against Justice Ademola was not watertight. He said: “Don’t forget that he also has a rock solid defence team. It is also possible he is entirely guiltless.”

In the case of Orubebe, the learned silk felt it was gross incompetence that was at play. He also wondered why a baseless charge would be filed against a Nigeria.”How can you charge someone and turn around to say you did it wrongly?” he asked.

He advised the agencies prosecuting to re-tool their investigation ability and strengthen the staff.

He said: “It is becoming embarrassing for the government’s fight against corruption.”

Hon also advised prosecuting agencies to be more discreet.

According to him, they leak too much information to the media and help suspects to stay one step ahead of them. In a bid to score cheap publicity and to make it look like they are working, they rush to give media too much information. They must rethink their strategy. ‎

He said: “The Federal Government should tender unrese‎rved apology to all the affected defendants.”

A judge who spoke in confidence wondered why the Executive expected the Judiciary to help it with its mission to destroy the judicial arms of government. 

He said: “Almost all the judges whose houses were raided wrote in clear terms that they were being witchaunted for refusing to do the bidding of some of the president’s ministers. What did the president do about it? You journalists should go and ask him.

“Am aware that the former Chief Justice of Nigeria, Justice Mahmud Mohammed wrote to the President stating that some members of his cabinet approached him and other justices for help in election matters. What did the president do about this?”

Apart from the letter to the president, Justice Sylvester Nqwuta who is still on trial for alleged corruption had in a letter to the former CJN said that Minister for Transport, Rotimi Amaechi and Minister for Science and Technology, Chief Ogbonaya Onu attempted to influence him and said he was being hounded because he refused to help them.

Justice Ngwuta wrote: “A few weeks after, Ayo Fayose’s case was determined in the Court of Appeal.  

“Amaechi called me by 6.45 am.  He said he had come to see me but was told I had left for my office.  When he said he would return in the evening, I demanded to know what he wanted but he would not tell me.  He did not come that evening but came the following morning when I was already prepared to go to work.   

“He begged me to ensure that Fayose’s election was set aside and another election ordered for his friend Fayemi to contest.  I told him I would not help him and that even if I am on the panel I have only my one vote.” 

In his letter dated 17th October,2016, John Nyang wrote: “My Lord, I strongly believe that this my travail is not unconnected with the verbal report I made to you on 1s, February, 2016 about the visit to my official residence by H/E, Rotomi Amaechi, former Governor of Rivers State and now Minister of Transportation. In that report, I told you My Lord, that Mr. Amaechi said that the President of Nigeria and the All Progressives Congress mandated him to inform me that they must win their election Appeals in respect of Rivers State, Akwa Ibom State and Abia State at all costs. For Akwa Ibom State, he alleged that he sponsored Mr. Umana Umana, candidate of All Progressives Congress for that election and that if he lost Akwa Ibom appeal, he would have lost a fortune. Mr. Amaechi also said that he had already visited you and that you had agreed to make me a member of the panel that would hear the appeals. He further told me that Mr. Umana would be paying me millions of Naira monthly if I co-operated with them. My response, as I told you on that date was that it does not lie within my power to grant his request and that I would do all within my power not to be in the panel for Akwa Ibom State. My Lord graciously left me out of the panel for Akwa Ibom State. That notwithstanding, the All Progressives Congress in Akwa Ibom State which lost the appeal at the Supreme Court believe that my presence in the Supreme Court made them to lose the appeal. Could I have resigned from the Supreme Court simply because people of Akwa Ibom State had a matter before it?” 

Those weighty allegations are left in abeyance and were never investigated. The implication of that is that government is only interested in fighting corruption among judges not among members of the president’s cabinet despite claim to the contrary by the Presidency. Last Thursday, the Senior Special Assistant to the President on Media and Publicity, Mr Garba Shehu still insisted that the relationship between the executive and the judiciary remains cordial. He said: “The relationship between the two arms of government has been very cordial. Nothing has happened to change the nature of the relationship.”

Unfortunately for Mr Garba Shehu, not many people in the judiciary feel the same way. Those in the bench believe that the administration of President Muhammadu Buhari is out to destroy the bench. They expressed support for the statement issued by the NJC after DSS raided the judges house. The council then described the invasion of the residences and arrest of some serving and suspended judicial officers by the DSS as a threat to the independence of the judiciary.

The council in s statement said the invasion  portended great danger to “our democracy; and also considered the action as a clear attempt by the DSS to humiliate, intimidate, denigrate and cow the Judiciary‎.” 

The council  also expressed grave concern on the invasion  and condemned the action in its entirety. 

Former Chairman of the Governing Council of the National Human Rights Commission, Professor Chidi Odinkalu said there was wisdom in allowing the National Judicial Council to deal with those judges. 

According to him, the standard of proof requires in judicial discipline procedures is balance of probabilities which is much lower than the criminal standard which is beyond reasonable doubt.