Magu in a handshake with Buhari

As the federal government and its agencies regroup to strategise on the fight against corruption following losses recorded penultimate week in the law court, the doubt on whether or not there could be any remarkable difference is still present. Davidson Iriekpen writes

 

Justice  Ibrahim Ndahi Auta once reprimanded the Economic and Financial Crimes Commission (EFCC) for lacking thorough investigative and prosecutorial prowess to pursue corruption cases. He reckoned that the bogus charges, frequent amendment to charges and the rush to arrest a suspect and the resort to media trial without diligent investigation were some of the problems facing the commission.

Thus, after losing a string of anti-corruption cases, the federal government last week called on Nigerians not to be discouraged by the recent setbacks in the war against corruption, promising that the serial negative outcome of corruption cases that were recorded at the high court level would not dampen the anti-graft battle.

The Minister of Information and Culture, Alhaji Lai Mohammed, who gave the reassurance on behalf of the government, said government had appealed all the negative decisions, and would vigorously canvass its case at the level of the Court of Appeal.

He also disclosed that all the judgments are being rigorously reviewed “to determine whether there were errors on our part or whether the government is the victim of mischief…The war against corruption is going to be long, tough and arduous, but this administration is equipped, physically, mentally and intellectually, for the long haul. We must win this war because the law is on our side, the people are on our side and God is on our side. This is only the beginning, so any setback will not deter or discourage us.”

He appealed to Nigerians to continue to identify with what he described as a titanic struggle, noting: “This is not Buhari’s war. It is Nigeria’s war of liberation from poverty, misery, sickness and wretchedness,” adding that Nigeria could not afford unnecessary technicalities as far as the war against corruption is concerned, especially because of the adverse and devastating consequences of corruption on the polity. Nigerians will appreciate more the grave and dire consequences of corruption, when they consider that the $9.2 million found in a village house in Southern Kaduna could finance the construction of one health centre in each of the 774 local governments in Nigeria and fund them for one year.

“Against this background, one can therefore imagine what Nigeria could have achieved with the $20 billion that was estimated to have been looted in the last three years of the immediate past administration, either in the areas of job creation or infrastructure development.

“The government is therefore more determined than ever to recover as much of this plundered funds as possible and use them to put our youths back to work, fix our roads and other infrastructure, equip our hospitals and universities and invest in electricity in order to bring our industries back to life and bring back some level of comfort to our homes and offices,” he said.

Penultimate Tuesday, an Abuja High Court sitting at Apo District struck out a six-count charge filed against a former Minister of Niger Delta Affairs, Godsday Orubebe, by the Independent Corrupt Practices and Other Related Offences Commission (ICPC). Orubebe was alleged to be involved in a N1.97billion contract scam as minister under the Goodluck Jonathan administration.

However, when Justice Olukayode Adeniyi gave the anti-graft agency time to produce its witnesses to establish that Orubebe diverted funds meant for the compensation of owners of property on Eket Urban section of the East-West Road in Eket, Akwa Ibom State, they could not. They later applied to withdraw the charge, making Justice Adeniyi to discharge and acquit the defendants.

Orubebe in 2015 held up proceedings for about 30 minutes during the announcement of the presidential results. But a few days later, he apologised, saying he regretted that he allowed his emotion to betray him. But rather than ignore him, government filed sundry charges against him. At the end, it could not produce witnesses, which is a sine qua non in criminal trial for his prosecution.

 This was closely followed by the acquittal of Justice Adeniyi Ademola, his wife, Olabowale, and a Senior Advocate of Nigeria, Joe Agi. They were accused in an 18-count charge of fraud brought against them for abuse of office and bribery, involving huge sums, ranging from local and foreign currencies, possession of firearms and involvement in illegal collection of gratification. But ruling on their no-case submission, Justice Jude Okeke, who heard the case said the prosecution could not establish a prima facie case against them. He consequently acquitted them

Also, 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.

As if these were not enough, a Federal High Court in Lagos unfroze the GTBank account of a human rights lawyer, Mr. Mike Ozhekome (SAN), containing N75million. The EFCC had alleged that funds were paid into the account by the Ekiti State governor, Ayo Fayose.

Investigation revealed that the four rulings had seriously jolted the federal government. Most shocking to it, it was gathered, was the acquittal of Justice Ademola, his wife and Joe Agi.

Having hit a panic button because of the implications of the rulings on the ant-graft war, the presidency quickly summoned a meeting of the prosecuting agencies with the Vice-President, Professor Yemi Osinbajo, presiding. The meeting, which was attended by the National Security Adviser, the Director General of the Department of State Services, Attorney-General of the Federation, the Inspector General of Police, and the Acting Chairman of the EFCC was aimed at re-strategising on the war against corruption.

While the government sees the losses as corruption fighting back, many analysts believe that corruption cases have not been properly investigated and prosecuted by the agencies and that some of the decisions to prosecute were purely political and not aimed at genuinely advancing the fight against corruption. They have also argued that some of the decisions to prosecute are either based on rash judgment or motivated by vendetta.

For instance, the case against the Senate President, Dr. Bukola Saraki, before the Code of Conduct Tribunal has been amended not less than five times. Though they believe that the law allows these amendments, they argue that doing so frequently only means the case was rushed before the tribunal or was meant to embarrass him.

Before then, Malami was forced to withdraw an incompetent charge filed against 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.

The same scenario played out in the case of Justice Ademola, who had alleged 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. The end result, of course, was his acquittal.

Before the present management of the EFCC was put in place, successive chairmen of the commission had often attributed different reasons the agency under them could not perform optimally or secure high profile conviction. While the first chairman of the commission, Nuhu Ribadu, attributed his non-performance to lack of enabling laws to drive the anti-graft war, his successor, Farida Waziri, held the judiciary (judges) responsible for her non-performance,.

On his part, Ibrahim Lamorde held the executive arm of government responsible for his own failure to successfully prosecute the war against corruption. But over time, it became clear to Nigerians that the anti-graft agencies were the ones undermining themselves with either shoddy investigation or lack of diligent prosecution or both. Most analysts believe that if the agencies put as much efforts as they put in media trial of accused persons, in the investigation and prosecution process, huge achievements would be recorded.

In 2013, for instance, following the heat the judges of his court were receiving for frustrating the anti-graft agency in its fight against corruption, the Chief Judge of the Federal High Court, Justice Ibrahim Auta, was forced to pay a courtesy visit on the chairman of the commission, where he explained that rather than always blame the court for not doing enough on the corruption cases before them, the judges were often helpless as the commission in their prosecution make quick dispensation of the cases uneasy.

Auta, who described the visit “to show the world that we are ready to work with EFCC with respect to the law and to see that due process is followed always,” advised the commission to be thorough in their investigation before charging any suspect to court.

Auta reprimanded the commission for lacking investigative and prosecution prowess in their fight against corruption, stating that bogus charges, frequent amendment of charges and the rush to arrest a suspect without investigation were the problems facing the commission.

According to him, a situation where the charges against a suspect are up to 125, and judges are bound to hear all of them, was unnecessary and cumbersome. He added that incessant amendments to charges filed by the commission and too many charges in one case for the accused to take a plea, among other such actions, amount to “dancing in one spot.”

The CJ further stated that when a prosecution lawyer objects to charges and the judge adjourns for further hearing, the next thing he would see would be a request to amend the charge sheet. He also accused the EFCC of always refusing to produce witnesses on the adjourned dates. All these, according to him, add to the length of prosecution time.

As a way out, the CJ suggested that in cases, where the charges against a suspect are numerous, the key ones should be used while the less important ones should be dropped in order to save time on the hearing of the cases. He also suggested that the EFCC should endeavour to conclude investigations before arraigning suspects in courts so as to avoid a situation, where charges would have to be amended. This way, he said corruption cases could be concluded in good time.

Also delivering judgment in the fundamental rights enforcement suit instituted by the former Director General of the Nigerian Stock Exchange (NSE), Prof Ndi Okereke-Onyuike, against the EFCC recently, the former Chief Judge of Lagos State, Justice Ayotunde Phillips, lambasted the agency for always rushing to arrest suspects without evidence. The judge held that it was imperative that security agencies such as the EFCC, must first establish reasonable suspicion against a suspect before arresting him or her.

The Judge, who urged men of the nation’s law enforcement agencies to learn from their counterparts abroad, cautioned them against being in a hurry to arrest suspects when they are yet to complete investigation and arm themselves with enough facts and evidence to secure conviction.

A senior advocate, who spoke with THISDAY on the condition of anonymity, said until the federal government puts its house in order, it should not expect anything meaningful to come out of the war against corruption. He warned the government to resist malice, vendetta and political consideration in charging any suspect to court.  He advised it also to always ensure that detailed and proper investigation is carried out before charging a suspect to court.

 “What this government does not know is that it is not in all cases that you charge a suspect to court. How can you charge a case to court without watertight evidence, solid witnesses and strong prosecutors?

“In the case against Justice Ademola, for instance, did you see the contradictory evidence from the so-called witnesses lined up by the government? How can you have 19 witnesses yet nothing to show? It is a shame! Ask yourself: can anything good come out of any corruption war with malice, vendetta and poor investigation?” said another lawyer, who did not want to be named.

 Generally, while the commitment of the federal government to stamping out corruption is evident, there is no debating the fact that the modus operandi of the relevant agencies saddled with the task is defective. The recent string of losses is instructive and should ginger government and its relevant agencies to start to do things properly, if they want to win the war against graft.