Early last month, the federal government, with the prompting of the Attorney-General and Minister of Justice, Michael Kaase Aondoakaa, a Senior Advocate of Nigeria, took a decision that could have put the Economic and Financial Crimes Commission, EFCC, in a straitjacket. The government directed the EFCC and other anti-corruption agencies to seek the approval of the Attorney-General before embarking on the prosecution of suspected violators of the country’s anti-corruption laws. Many Nigerians wondered what could have prompted the action. To them, the reason was as complex as the spelling and pronunciation of the Attorney-General’s name.
There is no need, however, for people to continue scratching their heads and staring at the ceiling. There is documentary evidence to prove that Aondoakaa has an axe to grind with the EFCC and its Executive Chairman, Malam Nuhu Ribadu. This is revealed in a case registered as SC 179/2006, instituted at the Supreme Court, Abuja by the Benue State Government in 2006, with Aondoakaa as the lead counsel.
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Aondoakaa has a moral dilemma in this case. He was a lead counsel in that case against the EFCC and the Attorney-General of the Federation, which is his present office. The implication of this is that in the case which is coming up in October this year, Aondoakaa will be the defendant and, at the same time, lawyer to the plaintiff!
According to the court papers, the Benue State Government took that step because, on 25 July 2006, about 50 heavily armed officers and men of the EFCC stormed the offices of the Secretary to the State Government, Commissioner for Water Resources and other places. The EFCC men allegedly forcefully arrested Mr. Terna Ahua, Permanent Secretary, Ministry of Water Resources and Environment; Mr. Peter Pa, a deputy director in the Accountant-General’s office; Mrs. Ruth Ijir, a director-general in the Monitoring and Inspectorate Division of the Ministry of Local Government and Chieftaincy Affairs and Mr. Williams Itodo, Director of Administration and Finance in the Ministry of Local Government and Chieftaincy Affairs.
Benue State in its Brief of Argument, submitted by Wole Olanipekun, Professor Ben Nwabueze, D.O. Dodo, B.I. Hon and Aondoakaa, all senior advocates, argued that EFCC officers did not have any prior consultation with either the Governor of the state who is the Chief Law Officer or any functionary of the state government before the arrests. The entire activities of the affected ministries were, as the counsel argued, paralysed.
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Dr. George Akume, as contained in the brief, had to personally go to the Benue State Police Command to demand explanation for their arrest and detention. But the officials of the Commission did not give any reason, except to arrogantly tell the Governor that they were acting under the powers and jurisdiction conferred on them by the EFCC Act, the lawyers said.
They further claimed that it was after much pleas and admonition by Akume to the effect that Nigeria is operating a federal system of government, with Benue as an independent government within the Federation, that the EFCC officials "grudgingly and reluctantly released the said officials and some of the government files and documents already impounded".
But EFCC later wrote to the Benue State Police Commissioner, directing him to ask the state government to bring to the EFCC on or before 8 August 2006, the officials. The commission accused them of "criminal conspiracy, abuse of office, corrupt practices, diversion of pubic funds etc". A copy of the letter was endorsed to the Secretary to the State Government by the Police Commissioner, directing the state government to comply.
Benue State government, to which Aondoakaa was lead counsel, accused EFCC of commanding the affected officials to bring along with them sensitive government documents dealing, among other things, with the utilisation of the Ecological funds received by the state from 1999; particulars of all contracts, the contractors that handled the jobs, locations of such projects and funds allocated to them.
In its argument, the state government pointed out that EFCC was not even in existence between 1999 and 2002 when some of the contracts were awarded. Moreover, it said, the Constitution of the Federal Republic of Nigeria vests in the state House of Assembly the power to direct any inquiry or investigation into matters like the one being handled by the anti-corruption agency.
The argument went further that under the Penal Code that is in operation in Northern Nigeria, of which Benue is a part, elaborate provisions are made for criminal offences such as conspiracy, abuse of office and corrupt practices, for which the EFCC was harassing the officials.
The lawyers drew attention to Section 128 of the 1999 Constitution, which vests in the state House of Assembly the powers to direct any enquiry or investigation into such matters. They also claimed that Section 214 (1) says there is only one Police Force in Nigeria, and this prohibits the establishment of any other police force in the Federation.
Embarrassed by what it called the actions of the EFCC, the Benue State government instituted the action with a view to "seeking definitive pronouncements... to nullify, correct, remedy and/or attenuate the anomalies or injustices that ostensibly have been occasioned on the people, officials and government of Benue State…"
Seven matters were tabled by Benue State government before the Supreme Court for determination.
First, was whether or not the National Assembly acted ultra vires and unconstitutional by enacting the EFCC Act 2004 to exclude, remove, jettison and interfere with the powers constitutionally vested in the Attorney-General of Benue State.
The Supreme Court was also asked to determine whether the National Assembly had not acted against the spirit of Section 214 (1) of the same constitution (establishing the Nigeria Police and forbidding the setting up of any parallel organ in the federation) by setting up the EFCC. That is, given the fact that the commission has broader powers and functions than the Nigeria Police.
Benue State wanted the apex court to declare whether the National Assembly did not act illegally by vesting jurisdiction in EFCC, respect criminal matters which are within the constitutional competence of the state government.
Given the fact that the EFCC Act is stated to have taken effect from 4 June 2004, the Supreme Court was requested to make a declaration on whether or not the National Assembly breached the constitution by vesting on EFCC retroactive powers and functions in respect of criminal matters.
Also requested to be ironed out was whether the EFCC has the power or jurisdiction to conduct any oversight function on the affairs of Benue State (a constitutional unit of the federation), or to arrest and detain any of its officials for alleged corruption. In other words, is the EFCC Act 2004 not strictly a federal legislation applicable only to federal officers.
Finally, the state government wanted the entire EFCC Act to be set aside, claiming that many of its actions are unconstitutional.
The lawyers cited several precedents to buttress their position. For example, on the retroactive Act of the EFCC, the lawyers cited FRN Vs Ifegwu (2003), where the Supreme Court stated that no legislation is entitled to "promote retroactivity of criminality and every legislation providing for crimes ought to look at the present and future by talking of referring only to what the culprit engages in doing but not what he had done before the commencement of the act or legislation".
On how territories must be respected in a federal structure, the lawyers referred to another case, Attorney-General of Abia State and others Vs Attorney-General of the Federation, where Justice Niki Tobi of the Supreme Court said : "Federation as a legal and political concept, generally connotes an association of states; formed for certain common purposes, but the states retain a large measure of their original independence or autonomy …" He added that Federalism, as a viable concept of organising a pluralistic society such as Nigeria, for governance, does not encourage so much concentration of powers in the centre, which is the federal government. Tobi argued further that in federalism, the component states "do not play the role of errand boys".
Analysts believe it was not surprising, therefore, when Aondoakka came out smoking when he was appointed Attorney-General. In their view, it was an extension of the above court duel between Benue State government, for which Aondoakaa was lead counsel, and EFCC.
In August, the federal government, through the President’s Special Adviser on Communication, Mr. Segun Adeniyi, gave a directive that EFCC, Independent Corruption Practices Commission (ICPC) and other anti-corruption bodies must seek the approval of the Attorney-General of the Federation before embarking on the prosecution of suspected corrupt individuals. Adeniyi said it was to "instil discipline, transparency, respect for the rule of law and due process in the conduct of government business".
Before this public statement, Aondoakaa had requested that he be made to exercise the powers conferred on him to make rules and regulations with regards to the functions and powers of EFCC.
The move, based on Aondoakaa’s position paper to President Umar Yar’ Adua, generated reactions for and against it. The Nigerian Bar Association (NBA) President, Olisa Agbakoba, said the AGF is the Chief Law Officer who has the power to prosecute offenders. He revealed that in a discussion he had with the AGF, both of them were in agreement that the historic powers of the AGF to prosecute cases had been distorted and that there was need for a restoration of the powers. "The development means the day of lawlessness of the EFCC is all over," Agbakoba said, adding that it was a "welcome development and the NBA is delighted by it. We are not saying the EFCC or the ICPC should not do their jobs, but they should be supervised. The AGF should exercise supervisory role on their functions."
Itse Sagay, SAN, also supported Aondoakaa. He argued that the decision to put the EFCC under the Federal Ministry of Justice was a welcome development. As Sagay put it, the power granted the EFCC to prosecute is illegal.
But the nay sayers shredded the arguments of Sagay and company.
Mr. Femi Falana, citing Osahon Vs the Federal Government, said the move should be seen as "an attempt to shield some sacred cows from prosecution." He urged the agencies to fight any attempt to render them impotent. State House Counsel, Ahmed Gafai who also delivered a position paper, citing Osahon Vs The Federal Government, faulted the stand of the Attorney-General. The case which Falana and Gafai cited was between the Federal Government as appellant and George Osahon and seven others as respondents in respect of various offences allegedly committed by the respondents under the Miscellaneous Offences Decree (Act ) of 1984. Justice Modibbo Alfa Belgore delivered the lead judgment.
Also, Mrs. Funke Adekoya, Chairman of the Legal Education Review Committee, reasoned that the development was not a good signal for the administration of justice. She added that the Attorney-General is a politician "appointed into the office by the Executive and he may withhold his consent" to prosecution based on political considerations.
Taiwo Osipitan, a Senior Advocate, submitted that EFCC and ICPC do not need the authority of the AGF to prosecute offenders. He added that the laws setting up the two agencies empower them to institute criminal action, either in the name of the AGF or on behalf of the federal government. Citing Olusemewo Vs Commissioner of Police and Adekanju Vs Comptroller of Prisons, he said: "If anti-corruption agencies seek the permission of the AGF, it is just a matter of courtesy.
The British High Commissioner to Nigeria, Mr. Richard Gozney, met with Aondoakaa to seek clarification on the matter. At the meeting which took place at the Ministry of Justice in Abuja, Gozney, TheNEWS gathered, said the take-over of the functions of EFCC and other anti-corruption agencies stood the risk of being construed as a move to shield some untouchables, especially in view of the current investigation in the United Kingdom of Nigerian politicians like James Ibori, two-term governor of Delta State, on allegations of money laundering and illegal possession of real estate. Also, the EFCC, ICPC, NDLEA and other anti-corruption agencies are funded directly by some global anti-corruption groups. Naturally, he said, they had expressed concern over the decision of the federal government to remove the powers to prosecute offenders from the agencies.
The State House Counsel, Ahmed Gafai, however, convinced the President that he should have engaged in wider consultation before taking the decision. In his paper entitled Constitutionality of Criminal Prosecution Under Other Laws presented to the President, the State House counsel put in proper perspective the powers of the Attorney-General. While admitting that it is a fact that Section 174 of the 1999 Constitution and Section 215 of the Criminal Procedure, Cap 80, Laws of the Federal Republic of Nigeria confer power and control of prosecution on the AGF, such powers, Gafai argued, are not absolute. Rather, what appears to be the AGF’s prerogative under these laws is the power "to take over, continue or discontinue or delegate such powers to any person (legal practitioner) in or outside his department to prosecute as it is currently being done."
With the cacophony of criticisms against the move and the protest by Ribadu to the President, the federal government reversed the decision. Aondoakaa told journalists in Abuja that the anti-corruption agencies could prosecute offenders independent of him or his ministry, but that his own role would be supervisory. "I have examined the relevant laws of the EFCC and other related agencies. The powers vested in them to initiate and continue prosecutions will continue...without referring to me in consonance with the relevant powers granted them by creating them."
Not a few Nigerians believed that Aondoakaa was playing politics with the anti-corruption agencies. Apart from acting as lawyer to former Vice President Atiku Abubakar, and the former Benue State Governor, George Akume, it is believed that he wanted the Benue State case with the EFCC swept under the carpet.
But Sagay, in an interview with TheNEWS after the reversal, argued that the Attorney-General’s directive to the EFCC and all other anti-corruption agencies was in line with the spirit of the 1999 Constitution. "As the chief law officer, the AGF is in charge of all prosecutions. He supervises all the agencies and can ask them to discontinue or stop any prosecution if the process flouts the constitution. He can on his own initiate prosecutions," Sagay said.
Nigerians, according to him, should not see Aondoakaa’s position from a political point of view because his directive was in line with the law of the land. "It is not correct to say the AGF is trying to protect his former clients who have cases to answer with the EFCC...I think the interest of the AGF today is to ensure that the EFCC and other agencies comply with the constitution and he should be commended and not crucified. In the past eight years, EFCC held the nation by the scruff of the neck and this is what the AGF wants to correct," he added.
Bamidele Aturu, a Lagos-based lawyer and civil rights activist, told TheNEWS that there is nothing wrong in being appointed Attorney-General, notwithstanding his legal position in the past. "What is important is that he should not act to influence the direction of the case" he argued.
But Falana holds a different position. "You see, Aondoakaa is the defendant and the lawyer to the plaintiff!" He believes there is a conflict of interest which is against the first rule of the Code of Conduct. The other terrible aspect of the drama, according to Falana, is that Aondoakaa did not inform the President that he was a party to a case against the EFCC before becoming Attorney-General and came up with the directive. Given this see-saw, other critics advised Aondoakaa to resign.
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