September 6, 2007
The Federal Government of Nigeria recently set in motion, plans to probe serving top government functionaries by the Independent Corrupt Practices and other Related Offences Commission (ICPC). According to a statement credited to the Chairman of the ICPC, Justice Ayoola, such probe will be handled by the office of the Independent Council (OIC) which shall be appointed in accordance with Section 52 of the ICPC Act. In a nutshell, Section 52 of the ICPC Act provides that when an allegation of corruption is made against a public officer covered by immunity clause, it will be forwarded to the Office of the Chief Justice of Nigeria (CJN).
The CJN shall, after satisfying that a prima facie case has been established against the person, appoint an Independent Counsel to further investigate the allegation and submit a report. The Independent Counsel, a legal practitioner of not less than 15 years standing, will forward the report to the National Assembly in case of the President or the Vice-President or to the State House of Assembly in case of a State Governor or his deputy. While the report may be used as a basis for initiating impeachment proceedings against such an indicted public officer, the ICPC shall have the authority to prosecute the functionary. This procedure as laudable as it sounds is burdened with overlapping powers of the Economic and Financial Crimes Commission (EFCC) whose duty it is to investigate cases that deal with good governance, transparency and accountability including abuse of Office, official corruption, bribery of government officials, diversion of public funds through fraudulent award of contracts, corruption in land allocation, tax fraud, money laundering etc. Even though, Section 52 of the ICPC Act gives the Chief Justice of Nigeria the power to appoint an independent counsel, the National Assembly must seriously consider a review of this Law for the purpose of repealing that provision which might soon become very controversial while bringing our law in conformity with current practice in addition to avoiding possible duplication of investigative and prosecutorial powers of the Economic and Financial Crimes Commission (EFCC). Already, many of such duplications abound in our legal system. In addition, there is a need to insulate the CJN from such responsibilities as Independent Counsel Process may be politicized. The idea of an Independent Counsel originated from the United States (Office of the Independent Counsel) even though its powers were limited to individuals holding or formerly holding certain high positions in the federal government and in national Presidential election campaign organizations. In addition, the practice was allowed to expire (a sunset clause provided that the entire chapter of the U.S. code dealing with the Independent Counsel expired within a certain time frame) in the U.S due to several reasons one of which was that the independent counsel had too much power and resources for investigating the target, thus leading to long and involved inquiries which were expensive for the target of the investigation even if no wrongdoing was found thus overburdening the tax payers resources. Therefore, the experiment about to be implemented in Nigeria by the ICPC had been tried fruitlessly and discarded in its country of origin. However, the Office of the Independent Counsel is not to be confused with the U.S. Office of Special Counsel (OSC) which is a permanent independent federal investigative and prosecutorial agency whose basic legislative authority comes from three federal statutes, the Civil Service Reform Act, the Whistle Blowers Protection Act and the Hatch Act respectively. It should also not be confused with the "independent counsel" who is appointed by the Attorney General pursuant to Department of Justice regulations. 28 Code of Federal Regulations 600.1. Be that as it may, the United States Office of Independent Counsel was terminated in 1999 and replaced with the U.S Department of Justice Office of Special Counsel. One of the questions that led to the establishment of the office of the Independent Counsel in the United States was whether the general public could trust the executive branch of government, the President and his appointed officials, including the Attorney General to investigate itself fully and fairly. After the so-called “Saturday Night Massacre” during the Watergate scandal where Attorney General Richardson and his deputy, William Ruckelshaus resigned rather than carry out President Richard Nixon's demand that the special prosecutor Archibald Cox be fired, Congress was convinced the executive branch could not be trusted to impartially investigate its own. The president had ordered Attorney General Richardson to fire Special Prosecutor Cox, who had continued to press for full release of the President's secret Oval Office tapes. Neither Richardson nor Deputy Attorney General William Ruckelshaus acceded to the President's demand to fire the special prosecutor. After their resignation, the next in command, Solicitor General Robert Bork, removed Cox. The resignation of the two high ranking government officials and subsequent firing of Cox generated a lot of public objection and condemnation which forced the Congress to initiate impeachment proceedings and began searching for ways to appoint a new prosecutor with greater independence.
The CJN shall, after satisfying that a prima facie case has been established against the person, appoint an Independent Counsel to further investigate the allegation and submit a report. The Independent Counsel, a legal practitioner of not less than 15 years standing, will forward the report to the National Assembly in case of the President or the Vice-President or to the State House of Assembly in case of a State Governor or his deputy. While the report may be used as a basis for initiating impeachment proceedings against such an indicted public officer, the ICPC shall have the authority to prosecute the functionary. This procedure as laudable as it sounds is burdened with overlapping powers of the Economic and Financial Crimes Commission (EFCC) whose duty it is to investigate cases that deal with good governance, transparency and accountability including abuse of Office, official corruption, bribery of government officials, diversion of public funds through fraudulent award of contracts, corruption in land allocation, tax fraud, money laundering etc. Even though, Section 52 of the ICPC Act gives the Chief Justice of Nigeria the power to appoint an independent counsel, the National Assembly must seriously consider a review of this Law for the purpose of repealing that provision which might soon become very controversial while bringing our law in conformity with current practice in addition to avoiding possible duplication of investigative and prosecutorial powers of the Economic and Financial Crimes Commission (EFCC). Already, many of such duplications abound in our legal system. In addition, there is a need to insulate the CJN from such responsibilities as Independent Counsel Process may be politicized. The idea of an Independent Counsel originated from the United States (Office of the Independent Counsel) even though its powers were limited to individuals holding or formerly holding certain high positions in the federal government and in national Presidential election campaign organizations. In addition, the practice was allowed to expire (a sunset clause provided that the entire chapter of the U.S. code dealing with the Independent Counsel expired within a certain time frame) in the U.S due to several reasons one of which was that the independent counsel had too much power and resources for investigating the target, thus leading to long and involved inquiries which were expensive for the target of the investigation even if no wrongdoing was found thus overburdening the tax payers resources. Therefore, the experiment about to be implemented in Nigeria by the ICPC had been tried fruitlessly and discarded in its country of origin. However, the Office of the Independent Counsel is not to be confused with the U.S. Office of Special Counsel (OSC) which is a permanent independent federal investigative and prosecutorial agency whose basic legislative authority comes from three federal statutes, the Civil Service Reform Act, the Whistle Blowers Protection Act and the Hatch Act respectively. It should also not be confused with the "independent counsel" who is appointed by the Attorney General pursuant to Department of Justice regulations. 28 Code of Federal Regulations 600.1. Be that as it may, the United States Office of Independent Counsel was terminated in 1999 and replaced with the U.S Department of Justice Office of Special Counsel. One of the questions that led to the establishment of the office of the Independent Counsel in the United States was whether the general public could trust the executive branch of government, the President and his appointed officials, including the Attorney General to investigate itself fully and fairly. After the so-called “Saturday Night Massacre” during the Watergate scandal where Attorney General Richardson and his deputy, William Ruckelshaus resigned rather than carry out President Richard Nixon's demand that the special prosecutor Archibald Cox be fired, Congress was convinced the executive branch could not be trusted to impartially investigate its own. The president had ordered Attorney General Richardson to fire Special Prosecutor Cox, who had continued to press for full release of the President's secret Oval Office tapes. Neither Richardson nor Deputy Attorney General William Ruckelshaus acceded to the President's demand to fire the special prosecutor. After their resignation, the next in command, Solicitor General Robert Bork, removed Cox. The resignation of the two high ranking government officials and subsequent firing of Cox generated a lot of public objection and condemnation which forced the Congress to initiate impeachment proceedings and began searching for ways to appoint a new prosecutor with greater independence.
However, President Nixon himself, having realized the implications of his actions and in his bid to relax the tension he had created, appointed Leon Jaworski to Cox's position, with the proviso that Jaworski could not be fired without the consent of a majority of the Senate Judiciary Committee. By the time Nixon resigned on August 9, 1974, Archibald Cox and his successor Leon Jaworski had carved out a new space in the public mind for the special prosecutor's role in reining in official corruption.
The office of Independent Counsel, which was therefore, a child of necessity, borne out of the Watergate Scandal was thus created to handle politically sensitive investigations and prosecutions involving the U.S highest government officials. Jim Mokhiber in his article, A brief History of Independent Counsel Law States: “As the investigation of the 1972 break-in of the Democratic National Committee's Watergate offices began to reveal a deeper level of corruption including political sabotage, obstruction of justice, and campaign finance irregularities….many in Congress pushed for the appointment of a special prosecutor. After his top aides and Attorney General either resigned or were dismissed in April 1973, President Richard Nixon himself suggested he might allow a new Attorney General to name a special prosecutor to investigate the scandal. The Senate held the administration's feet to the fire by threatening to delay Attorney General-designate Elliot Richardson's confirmation unless he agreed to appoint a special prosecutor. Richardson responded by naming Harvard University law professor Archibald Cox to the position, and publicly guaranteeing him the Justice Department would not interfere in his case. This promise was put to the test in October 1973 during the so-called "Saturday Night Massacre," when Nixon ordered Attorney General Richardson to fire Special Prosecutor Cox, who had continued to press for full release of the President's secret Oval Office tapes. Neither Richardson nor Deputy Attorney General William Ruckelshaus acceded to the President's demand to fire the special prosecutor, and instead resigned”. Historically in the United States, concerns of this kind have led Presidents to appoint special prosecutors charged with rooting out high-level official corruption. Special prosecutors were appointed to investigate such notorious cases as the 1920's Teapot Dome bribery and corruption affair and the tax scandals of the early 1950's. However it was the wide-ranging investigation of Watergate and the Nixon administration which convinced the public of the need for someone independent of the executive branch to lead an investigation of the government's upper echelons. In the U.S the Watergate experienced had revealed that investigators within the executive branch could not truly be independent. There was a general perception that a federal prosecutor who was independent of the usual appointment process and who could undertake impartial and nonpartisan investigations of high government officials was needed to promote public confidence by avoiding the conflicts of interest that many saw during the Watergate scandal. "After Watergate, we decided that we wanted to have someone independent, someone to come in on horseback and solve our problems for us, someone outside the system," Sen. Fred Thompson (R-Tennessee) explained in an interview with the CNN on June 29, 1999. The Ethics in Government Act of 1978 authorized the appointment of Independent Counsels to investigate whether specified crimes or impeachable conduct may have been committed by certain high government officials. This enactment was codified under the Independent Counsel Reauthorization Act of 1994. The Independent Counsel is a federal prosecutor, subject to federal laws and rules of practice. He or she undertakes an investigation, may convene a grand jury, and may summon witnesses to testify before the grand jury. The referral clause of the independent counsel statute provided, "An independent counsel shall advise the House of Representatives of any substantial and credible information which such independent counsel receives, in carrying out the independent counsel’s responsibilities under this chapter, that may constitute grounds for an impeachment.” The objective behind the creation of office of the independent Counsel in the United States was amply stated by the U.S Senate Committee on Governmental Affairs when faced with the first reauthorization of the law in 1982 at which time also the name was changed from “Special Prosecutor” to “Independent Counsel”. The Committee, in its report recommending reauthorization stated: “Prompted by the events of Watergate, Congress recognized that actual or perceived conflicts of interest may exist when the Attorney General is called on to investigated alleged criminal activities by high-level government officials. When conflicts exist, or when the public believes there are conflicts, public confidence in the prosecutorial decisions is eroded, if not totally lost. Thus, a statutory mechanism providing for a temporary special prosecutor is necessary to insulate the Attorney General from making decisions in these instances”. A main difference between the Independent Counsel and other U.S. Justice Department prosecutors is that the Independent Counsel operates pursuant to a charge from the special appellate court panel and the Independent Counsel must report to the panel about the investigation at its conclusion. Also the Independent Counsel may "advise the House of Representatives of any substantial and credible information that may constitute grounds for impeachment." The Independent Counsel operated under the laws and rules of the U.S. Department of Justice with some level of flexibility due to the nature of its operations. The statutory authority of the Independence Counsel Statute was not permanent. The Statute must be re-authorized to remain in effect. The last reauthorization was done in 1994 for a five-year term and since then, the Independent Counsel Law has gone into the oblivion have failed to garner enough Congressional support for its re-authorization in 1999. In opposing the renewal of the statute, many critics including a one time Independent Counsel, Kenneth Starr concluded that the law was well-intentioned but fatally flawed. There were several reasons why the U.S Congress did not renew the Independent Counsel Law. According to the statement of U.S Senator Carl Levin during the hearing by the Committee on Governmental Affairs on the Future of the Independent Counsel Act on Wednesday, February 24, 1998; “recent developments have shaken the foundations of the independent counsel law. What they tell us is that the integrity and effectiveness of the independent counsel law depends at its core on the good judgment and common sense of the individuals appointed to serve. Several independent counsels in the last number of years have exhibited neither good judgment nor common sense, and their investigations have caused many to lose faith in the independent counsel system. Another problem is the politicization of the independent counsel process. Instead of insulating the investigation of top officials from politics as the law was meant to do, the law has too often become a political weapon offering repeated political flashpoints”.One other fundamental reason why the Independent Counsel Law was not renewed in the United States was the fact that the Independent Counsels could not justify the tremendous amount of money being spent on them by the government. For instance, independent counsel Kenneth Starr, spent 4-1/2 years in office and over $40 million investigating President Bill Clinton despite the fact that less than 25% of the Americans had confidence in Starr himself; another Independent Counsel that investigated President Reagan's Secretary of HUD spent almost $30 million only to announced later that there would be no indictment of the Secretary while another Independent Counsel who was appointed to investigate gifts to the Secretary of Agriculture spent over $17 million to do so after which the jury rejected his verdict. In all of these, the taxpayers suffered the most.
When the Independent Counsel Law expired in the United States in 1999, the Justice Department took over the job of appointing special prosecutors invoking the long-established powers to name a special prosecutor, an outside figure charged with conducting a specific investigation but still answering directly to the Justice Department. As stated above, the whole idea behind the establishment of an Independent Counsel was to create a process of impartial and nonpartisan investigation of high government officials which was needed to promote public confidence by avoiding the conflicts of interest. The Attorney-General and head of the Justice Department being a political appointee was considered not to be someone independent of the executive branch to lead an investigation of the government's upper echelons. In the United States, there is no independent and autonomous anti-graft institution charged with such duties similar to those performed by the Economic and Financial Crimes Commission (EFCC) in Nigeria; therefore, one could understand the need for the creation of the office of Independent Counsel, which understandably is now obsolete. This is why with the Office of the U.S office of Independent Counsel gone, the U.S Attorney-General currently has the authority to appoint and remove special counsel to investigate top government officials and the Special Counsel is accountable only to him. The Attorney-General also exercises power over indictments and other prosecutorial actions and he can take any steps he deems appropriate in any given situation. In Nigeria, the EFCC exercises power over indictments and other prosecutorial actions. The anti-graft Agency investigates and prosecutes cases that deal with good governance, transparency and accountability including abuse of Office, official corruption, bribery of government officials, diversion of public funds through fraudulent award of contracts, corruption in land allocation, tax fraud, money laundering etc. A cursory look at the relevant law that established the EFCC reveals that the anti-graft Commission is not only autonomous but possesses all the attributes of an Independent Counsel, having been investigating and prosecuting high ranking officials since its inception. The independence and autonomy of the EFCC was made abundantly clear under Section 6(m) and (n) of the EFCC Act of 2004 wherein it is provided that the EFCC shall be responsible for “taking charge of supervising, controlling, coordinating all the responsibilities, functions and activities relating to the current investigation and prosecution of all offenses connected with or relating to economic and financial crimes” as well as “ the coordination of all existing economic and financial crimes units in Nigeria”. This clearly repealed the provisions of Section 5(K) of the EFCC Act of 2002 wherein the EFCC was required to engage in the prosecution of all offenses connected with or relating to economic and financial crimes “in consultation with the Attorney-General of the Federation”. As an Independent Institution, the EFCC is however, required by Section 6(o) of the EFCC Act 2004 to maintain “a liaison with office of the Attorney-General of the Federation…..all government security and law enforcement agencies and such other financial supervisory institutions in the eradication of economic and financial crimes.” The power conferred on the AGF by section 43 of the EFFC Act 2004 to make rules or regulations to aid the statutory functions of the Commission has not reduced the EFFC to the status of the National Drug Law Enforcement Agency to whom the AGF is empowered to give “general policy guidelines” by virtue of Section 9(1) of the NDLEA Act. In order to ensure that the EFCC is not controlled by the executive arm of government, the Commission is mandatorily required pursuant to section 37 of the EFFC Act to submit to the National Assembly, a report of its activities not later than 30th September in each year. What this boils down to mean is that the EFCC is an independent Agency whose functions and powers are detached from the office of the Attorney-General of the Federation as a result of which is best suited to continue with the investigation and prosecution of public officers in accordance with the EFFC Act 2004. In the case of Attorney-General of Abia state v. AGF (2007) 6 NWLR (PT 1029) 200, the Supreme Court of Nigeria stated, ex abundanti, that the Attorney-General of the Federation cannot be held vicariously liable for the actions of the EFCC. No doubt, the Attorney-General of the Federation has the power to take over or discontinue any pending criminal case at any stage of the proceedings pursuant to the powers conferred on him by Section 174(3) of the 1999 Constitution. However, it has been held in plethora of cases that in exercising the powers to take over or discontinue any criminal case, the AGF “shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process”. The ICPC Act just like the EFCC Act is a very critical Act except that the provisions dealing with the appointment of an Independent Counsel is an aberration, obsolete, unnecessary and therefore, should be repealed. As stated above, although the U.S. Supreme Court upheld the independent counsel statute in Morrison v. Olson (1988), the position had always been highly controversial, a situation that ultimately led to its elimination from the U.S legal system in 1999. Because the law conferred on the independent counsel very broad prosecutorial powers and a virtually unlimited budget, there was general consensus that the prosecutor would have to be a person of unquestioned integrity and sound judgment, not driven by a partisan or political agenda. In U.S, two independent counsels became controversial while in office as a result of their conduct: Lawrence E. Walsh that investigated the handling of the Iran-Contra Affair by members of the administration of President Ronald Reagan, and Kenneth Starr who headed the Whitewater inquiry from 1994 to 1999. Starr's investigation led to the unsuccessful impeachment trial of Clinton and became the longest and most expensive independent counsel investigation in history.googletag.cmd.push(function() { googletag.display('content1'); });
In addition, from1978 through 1999, twenty independent counsels were appointed and their investigations cost several millions of U.S Dollars. Unfortunately, they only produced few indictments despite the huge cost to the tax payers. Suffice it to say that even in advanced democracy like the U.S, the office of Independence Counsel suffered colossal failure. To this effect, there is no assurance that the Office of the Independent Counsel (OIC) about to be created in Nigeria with powers and duties equivalent to those performed by the expired U.S Office of Independent Counsel in Nigeria will produce a better result giving our own peculiar situation. “Instead of insulating the investigation of top officials from politics” as the Independent Counsel is meant to do, the office might become a political weapon offering repeated political flashpoints and reprisals while gulping enormous amount of resources. Too much cook, as the saying goes, spoils the broth.
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