EFCC greater than any individual

Tongues have waggled on what ought to be in the case of the Economic and Financial Crimes Commission(EFCC), Mallam Nuhu Ribadu's attending a course for senoir public officers at NIPSS, kuru. Tribunelaw was able to get Adeniyi Akintola (SAN)'s view on the issue. Excerpts:

Writing on Ribadu’s furore and the police routine order on him to proceed on a course at the NIPSS Kuru reminds one of a seminar on the ‘’Land Use Act and its implementation in Nigeria,” which was held in Lagos in 1981. In his opening address at the said seminar, the then civilian governor of Lagos State, Alhaji Lateef Kayode Jakande declared: ‘Let every speaker, participant and contributor at this seminar declare his or her interest on land transaction in Nigeria before this gathering, so that the general participants at this seminar will not be prejudiced by the jaundiced and self-serving opinions of interested speakers”. That statement made by Alhaji Jakande in 1981 to my mind is still very much germane and relevant to the present hula baloo and unnecessary media hype that has taken over the political landscape of Nigeria in recent times over Ribadu.

As one of the lead counsels in the various cases instituted by Alhaji Atiku Abubakar and the Action Congress against the most despicable electoral commission ever established in the anals of this country.I defended the interest of my client against the Economic and Financial Crimes Commission (EFCC) and crossed legal swords with the commission.

Also, I had cause to defend Mallam Nuhu Ribadu against the onslaught of some corrupt politicians over Alamaseigha’s escape from London. May I also confess that Mallam Nuhu Ribadu is my good friend with whom I share very many mutual friends. That notwithstanding, I had cause to disagree with him over a number of issues, ranging from his penchant to slander people, make unguarded and unsubstantiated allegations, including baseless allegations against members of the judiciary. His major weapon was blackmail, using the media in an unprecedented manner. Nigerians tolerated these infractions until he became a tool and instrument for settling political scores. Those of us who handled cases for Atiku, Boni Haruna, Ngige, Pariya, Akume, etc have tones of documents to show that between 2006 and 2007, Ribadu’s activities as chairman of EFCC were certainly not in the public interest. The verdicts of the various election tribunals on excluded candidates during the last elections have shown that the attacks on Mr. President over Ribadu’s redeployment to Kuru were unjustified and unwarranted. As a matter of fact, a strict constructionist President or Attorney General would have invoked the provisions of section 3(2) of the EFCC Act to remove Ribadu and indeed all the members of the commission long ago.Our disagreements which of course are legion, prompted members of the bar at the Port-Harcourt conference in 2006 to move that Mallam Ribadu be sanctioned. To many members of the public who are not aware of the facts at the disposal of serious minded members of the Bar, their outrage against the Nigeria Bar Association is excusable. But to serious minded members of the Bar who have access to frivolous petitions and political statements from Ribadu, the steps taken by the Bar in Port-Harcourt was a welcome development. Justices Buba, Federal High Court Port-Harcourt, Auta, Ade-Alabi, C.J Lagos State and scores of other justices throughout the country, including very eminent lawyers who had allegations against them investigated by the appropriate authorities and were exonerated would not forget Ribadu’s outrageous and idle allegations against the individuals in a hurry. Like many members of the Bar,I stand by our President,Olisa Agbakoba SAN, and the Nigerian Bar Association on this issue.

Ribadu at one time declared the entire judges of the Federal High Court as corrupt and that was after approaching some of these judges privately in their chambers to breach the sacred oath of office they took. These were reports made available by Justices Buba, Ade-Alabi and many more.

The Professor Ayua’s administrative commission of enquiry report and the EFCC report on PTDF, as well as the commission’s reports on political office holders which indicted many people, including non public office holders such as Dr. Lanre Tejuosho actually pitched many friends and sympathizers of Ribadu against his commission. A publication of all the aforementioned EFCC reports and administrative commission of enquiry reports by the Nigerian media will go a long way to enable the Nigerian populace appreciate how a noble cause could be bastardised and destroyed at the shrine of a tin god who believes in playing god over ordinary mortals like himself. Thus, the nobility of the Economic and Financial Crimes Commission and the credibility of a brilliant, courageous and talented young man (Mallam Nuhu Ribadu) was put on the line by an Emperor-ruler who must destroy every other person’s credibility in an attempt to fight and destroy his political opponents.

My advice to Nuhu Ribadu in private about the danger inherent in playing the role of Jehu in the biblical history, who was used to destroy the Omride dynasty in the Nigerian context. I drew his attention to the fate of a one time vibrant police officer, Mr. Alex Ogbugbuaja, who took the Nigerian crime scene by storm in the early 80’s. To my knowledge, very many eminent Nigerians at the Bar, the Media, the security forces warned our friend against the Emperor to no avail. Our fear was for Ribadu and the good job he has done between 2003 and 2005. And we were so passionate and proud of his achievements that nothing was too much to do to preserve the beautiful legacy. Some of our mutual friends advised Ribadu to ask for redeployment when it became apparent that his beautiful works and achievements were being used to launder the image of a failed Emperor and also turned the EFCC into a political tool in the hands of a vengeful ruler.

On Ribadu’s NIPSS course
Mallam Nuhu Ribadu is an officer of the Nigerian Police, in fact a superior officer at that. The Nigerian Police is a creation of the constitution and as a matter of fact, the Nigerian Police Council and the Police Service Commission are creations of section 153 of the 1999 Constitution, under the Federal Executive bodies. Similarly, section 214 of the Constitution of the Federal Republic of Nigeria 1999 established the Nigerian Police Force while section 215(2) thereto places the rank and file of the police, that is, from the Deputy Inspector General of Police to the last recruit under the command and control of the Inspector General of Police.The Inspector General of Police in turn is subject only to the control of the President of the Federal Republic of Nigeria. The far-reaching implication of the above provision of the constitution is that Mallam Nuhu Ribadu, a superior officer of the Nigerian police is subject to the control, command and directive of Mr. Okiro, the Inspector General of Police, for as long as he retains his commission with the Nigerian Police. The EFCC Establishment Act 2004 which many have been touting in favour of their argument against the redeployment, removal or sending on course of Mr. Ribadu is an existing law by virtue of section 315 of the Constitution of the Federal Republic of Nigeria 1999. To that extent, the EFCC Act is a subordinate statutory provision to the constitution of the Federal Republic of Nigeria. In fact, the EFCC Establishment Act 2004 is an existing law that shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of the constitution. It is, therefore, necessary to appreciate the fact that the powers conferred on the Inspector General of Police by the provision of section 215(2) of the 1999 Constitution over the rank and file of the police, (Ribadu inclusive), in the areas of posting, command, control, redeployment, including sending on course, is superior to the so-called power of tenure of EFCC chairman of its members otherwise known a section 3(1) and(2) of the EFCC Establishment Act 2004.

Assuming but without conceding that section 3(2) of the EFCC Establishment Act 2004 guarantees the tenure of a member of EFCC against arbitrary removal, it is submitted that nothing is sacrosanct about sub-section 2 of that section,vis-à-vis the power of the president of Nigeria to remove any member of that commission for reasons or no reasons at all.

A careful reading of section 3(2) of EFCC Establishment Act 2004 shows that the wordings of that provision were laced with the word ‘or’ which is a disjunctive word in every material particular. For instance, sub- section 2 reads: ‘a member of the commission may at anytime be removed by the president for inability to discharge the functions of his office whether arising from infirmity of mind or body or any other cause or for misconduct or if the president is satisfied that it is not in the interest of the commission or in the interest of the public that the member should continue in office’.

It is instructive to note that the above provision is not only permissive; it is also loose with very wide discretionary powers given to Mr. President. The word ‘may’ there is permissive, the sentence ‘at any time’ is non restrictive, the sentence ‘or any other cause’ is not only loose and permissive but also endowed Mr. President with wide discretionary powers on the issue of removal of any member of the commission, its chairman inclusive. What constitutes misconduct by any member of the commission is also not defined by section 46 of the EFCC Establishment Act 2004 which is the interpretation section of the Act. As if the aforementioned discretionary powers of Mr. President are not enough, the sub-section also provides that, ‘’if the president is satisfied that it is not in the interest of the commission or the interest of the public,” he may remove any member of the commission. The satisfaction or otherwise of Mr. President is a subjective issue. It is not open to any person, yours truly inclusive, to know or question what the satisfaction or otherwise of Mr. President is. This is a situation that is akin to the popular provision in the 1963 Republican Constitution of the Federal Republic of Nigeria with the phrase “if it appears to the Governor General” which was interpreted by the privy council in the popular case of Adegbenro V Akintola of the first republic.

In order to erase all doubts as to the power of Mr. President to remove Mr. Nuhu Ribadu if he so wishes at any time, with or without any reason, it is important to stress here that the EFCC Act is not a creation of the constitution but a creation of the National Assembly.

The commission was established by the executive through an Act of the National Assembly and to that extent every officer of the commission is a public officer. By virtue of the provision of section 171(1) and (2) (d) of the 1999 Constitution of Nigeria, the power to appoint any person to hold or act and remove such person from offices such as permanent secretary, or head of any extra-ministerial department of government of the federation however designated is vested in the President, and he need not give any reason or explanation for such appointment or removal. It is submitted therefore that the EFCC falls under the category of extra-ministerial department of the federation, the name given to it not withstanding.

As rightly pointed out by a retired Justice of the Supreme Court and the ICPC Chairman, Hon. Justice Yinka Ayoola, it is laughable and diversionary to say that a mere routine matter of institutional, administrative assignment has been elevated to the point of national debate to the extent of casting aspersion on the personality of the I.G.,the President and any other person who holds contrary views from that of the ill-informed and disco commentators. Like in disco music, they listen only to themselves. Equally disturbing is the personalization of any institution with a noble goal. Yes, leadership matters in every organisation and a good leader surely gives directions for a noble cause. That notwithstanding however, Nigerians must not underplay the patriotic roles of other men and women in the EFCC such as Mr. Lamorde, Mr. Akomaye, Mr. Babangida and Mr. Manasara,to mention but a few who made things happen positively too in EFCC.

Fighting corruption and economic crime should be an institutional thing and not cult personality. Personalizing an institution like the EFCC will only destroy it. A lot of people are getting unnecessarily emotional over Ribadu. Oftentimes they allow emotion to get the better part of their judgments. They stand logic on its head, refer to no justiciable provision of the Constitution and repealed enactments to ventilate their ill-informed views.

In the words of Hon. Justice Yinka Ayoola, the ICPC Chairman, they comment on issues they know little or nothing about.

During the raging controversy between the Honourable Attorney General and Minister of Justice against Ribadu which was most unnecessary, ill-informed commentators misled the public so much that many forgot that the position of the Attorney General of Federation and Minister of Justice is a creation of the Constitution by virtue of the provision of S150 of the 1999 Constitution. They also forgot that the power to institute and undertake criminal proceedings against any persons before any court of law in Nigeria other than a court martial in respect of any offence created by or under any Act of the National Assembly, take over and continue any such criminal proceedings that may have been instituted by any other authority or person and to discontinue same at any stage belongs to the Attorney General of the Federation. S 174(1)(2)(3) of the 1999 constitution. Little wonder the Supreme Court of Nigeria describes an Attorney General in the case of Ilodibe V. The State as ‘’a master unto himself”. In civilized countries the world over, the Attorneys General and Ministers of Justice are the most powerful persons in every government, apart from the president himself. The Attorney General advises the government in practically all matters of governance since all government activities are guided by laws.

In the United States of America, no contract or bilateral treaty is entered into without passing through the Department of Justice. Anybody in doubt as to the enormous power of the Attorney General should revisit the Watergate scandal that consumed ex-president Richard Nixon and his government. It is therefore unthinkable that supposedly educated elements in Nigeria tried so hard to elevate Nuhu Ribadu beyond the Attorney General and Minister of Justice when in actual fact, a letter signed by any legal officer from the office of the Attorney-General of the Federation can put an end to any act of prosecution of an offence by EFCC and the police. Not even the Inspector General of Police can question the authority of the Attorney General of the Federation. Even the provision of section 22(2) and section 30(4) of the EFCC Establishment Act 2004 gives so much power and control of the EFCC activities to the Honourable Attorney General and Minister of Justice. Section 22(2) empowers the Attorney General of the Federation only to ensure that forfeited assets of corrupt persons are effectively transferred and vested in the Federal Government. The question is how many of such forfeited properties and assets have been vested in the federal government through the Attorney General of the Federation? Also section 30(4) of the same Act empowers the Attorney General of the Federation to make rules and regulations for the disposal or sale of any property or assets forfeited pursuant to the Act. Some of the commentators who are pretending to be supporting Ribadu are not doing him any good. rather they are preparing grounds for a vengeful Attorney General of the Federation to nail Ribadu. A proper application of the EFCC Act in that respect by the Attorney General will certainly not be funny for Ribadu.

Rather than dissipate energy on unnecessary controversy over the power of the Inspector General of Police to redeploy his officers or send them on course, or personalise the fight against corruption, what should occupy the minds of serious-minded Nigerians is how to harmonise and create a synergy between the various anti-corruption laws in our statutes, especially the EFCC Establishment Act 2004, the Money Laundering Prohibition Act 2004, the ICPC Act, the Criminal Procedure Act, the NDLEA Act and the Customs and Excise Act 1990 laws of the federation. We should focus our attention as concerned Nigerians on the need to have a functional, credible and durable anti-corruption laws which will empower all Nigerians, irrespective of their social status to expose and fight corruption in all ramifications. A fight against corruption should not be a one man show. Officials of anti-corruption agencies must be apolitical, mature and patriotic enough to appreciate the fact that public office should not be used to settle scores or instigate indiscipline in national institution. Nigeria is greater than every individual.

To underscore and appreciate the enormous responsibilities imposed on us as citizens of this great country we must individually and collectively be ready to have a second look at our anti corruption laws and the constitution of the Federal Republic of Nigeria. A careful reading of all these laws will show bundle of contradictions, overlapping, duplications of functions and patently unconstitutional provisions which cannot stand the test of judicial scrutiny. As rightly submitted by Mr. Femi Falana, a lot of sections in the 1999 Constitution have been whittled down by judicial pronouncements. For instance, the power to do and undo by political parties and the commencement of the tenure of governors as well as the provisions of Sections 182(1)(j) of the Constitution Federal Republic of Nigeria 1999 has been subjected to judicial surgery. What is needed now is for the office of the Attorney General of the Federation, the National Assembly and indeed the general public to put in place the brightest legal minds so as to create a conducive atmosphere for the purpose of preparing an enduring, realistic and constitutional anti corruption bills before the National Assembly. The said bills should eliminate areas of duplications, contradictions and unconstitutional provisions in our anti corruption laws.

Fortunately, the EFCC was represented at a seminar on Economic and Money Laundry in Singapore by Mr. Akomaye in October 2007. This writer was present at that seminar in company with one other Nigerian. The papers presented at that seminar by the various speakers in relation to hamonisation of the various anti corruption, economic crimes, terrorism laws vis-a-vis the rights and obligations of the citizens the world over would be of help in this direction.

The federal government of Nigeria must be ready and willing to fund the code of bureau and code of conduct tribunal properly. Provisions should be made for the code of conduct tribunal in the national budget to engage the services of professionals such as media consultants, quantity surveyors, legal practitioners, accountants, estate valuers and tax consultants, for the purpose of verifying the bogus claims of our public office holders in their asset declaration forms. All the anticipatory and mind-boggling declarations should be tied to the taxes being paid by such public officers. The Board of Inland Revenue should play a role in the fight against corruption. By this approach most of the thieving public officers will end up in jail, either as a result of perjury, tax evasion, tax avoidance or outright corruption

Enough of emotional outburst over the redeployment of Mallam Nuhu Ribadu by his employer. Being a man of my generation, I appeal to him to proceed on the Kuru course, obey constituted authority and discourage unnecessary media hype over his assignment and duties. `