TWO weeks ago I began an analysis of the bribery allegations involving Mr Femi Otedola and Honourable Farouk Lawan of the House of Representatives. Last week I explained the dynamics of what is known in Police and Law Enforcement circles as “Agent Provocateur” and “Sting Operations”. These became relevant in view of the contrasting claims of the parties about who as between the two originated the bribery offer and what the motive was for so doing. Whilst Mr Otedola claims that the bribe demand came from Hon Lawan and that he informed officers of the Department of State Services otherwise called “SSS” who in turn prepared a sting operation to ensnare Lawan, the latter claims that it was the other way round. Lawan’s story is that Otedola offered the bribe and that he (Lawan) only collected the money so as to expose Otedola.

These claims are currently the subject of ongoing Police Investigations and may ultimately become the subject of criminal and/or civil proceedings. Therefore I intend only to appraise both claims in the light of what has already been discussed regarding the position of the Law and the facts which are not in dispute between the Parties.

FEMI OTEDOLA’S CLAIMS
Mr Otedola claims that Hon Farouk Lawan demanded the bribe from him and that the Department of State Securities was informed. He claims that he and officials of the said Department made separate video recordings of the handover of the money at his residence.

These claims have reasonably attracted some level of curiosity and skepticism. Some of the questions raised by Nigerians are:

(1)    Why did Mr Otedola chose to go to the Department of State Services (SSS) rather than the Nigeria Police who have the Constitutional duty of prevention and detection of day to day crimes or even the Independent and Corrupt Practices Commission which is saddled with investigation of cases of official corruption?

(2)    Was Mr Otedola’s choice of the said SSS informed by other factors rather than the claimed desire to bring a bribery allegation to the knowledge of Law Enforcement Authorities?

(3)    Why did Officials of the SSS in particular, being very much aware of their limited statutory roles and function fail to refer the report made to them by Mr Otedola to the Nigeria Police?

(4)    Why was Hon Lawan not arrested at the point of the handover of the money? After if it was a sting operation to catch him in the act of receiving marked money as claimed, an arrest should have been made at the said handover.

(5)    Why did the allegation only become Public knowledge after the name of Mr Otedola’s company had been removed from the list of Companies indicted by the Committee of the House?   

SPECIAL ROLE OF THE DEPARTMENT OF STATE SERVICES (SSS)
The Department of State Services is not the everyday law enforcement agency. It is a specialized body set up to attend to matters of state security. It cannot therefore dabble into maters which are outside of its statutory purview. I doubt whether the current bribery allegations can be classified as touching on state security. Surely this position should not have been lost on the agency itself as the Court of Appeal in Tawakalitu v.F.R.N (2011) All FWLR (Pt. 561) 1413 made clear pronouncements about the statutory role of the Department of State Services. The Court stated as follows:

“…it is clear that the powers conferred on the police are wider that those of the State Security Services which are confined to detection of crimes against internal security of Nigeria; preservation of all non-military classified matters concerning the internal responsibilities affecting internal security of the Nigeria State and the National Assembly or President may deem necessary to assign to the service.

With the greatest respect, examination malpractices and/or certificate forgery is not one of those crimes relating to or contemplated by the National Security Act on internal security of Nigeria so as to confer the State Security Service with the powers to arrest, detain, investigate and arraign the accused persons in that respect.  Ordinarily, as State Security operatives or citizens of this country, they have powers to apprehend any criminal caught committing an offence but in line with sections 9 and 39 of the Criminal Procedure Act and Code respectively, the accused persons/appellants ought to have been taken before a police station and handed over to police officers who are statutorily charged with the responsibility of investigating crimes of the nature with which the appellants were charged which State Security Service officers in this case failed to do.  In essence, they usurped the powers of the police as provided under the Police Act as earlier cited.”

With the above in mind, one would have expected the officers concerned to have, from the outset, referred Mr Otedola’s complaint to the appropriate body saddled with the responsibility of investigating such which from the facts of the case would have been the Nigeria Police.

It also would have helped if Hon Lawan had been arrested at the handover of the money. After all the offence of bribery was complete the moment he received the allegedly marked notes. The failure to make the arrest has contributed to the controversy surrounding the whereabouts of the said marked notes. After weeks of speculation, the Police were recently quoted to have stated that the bribe money had been spent. Some have therefore questioned the ability of the Police to successfully prosecute Hon Lawan or anybody involved in the bribery scandal without the money allegedly collected as bribe. However it must be noted that there are instances where for operational and investigative reasons, immediate arrests are not usually made in the course of a successful sting operation. 

An example of such is when undercover Police Officers buy small amounts of drugs from a drug dealer in the hope that the cumulative amount of drugs eventually bought will over a long period of time be sufficient to attract a higher prison sentence to the said drug dealer. In such a scenario, each drug buy would be enough ground for the arrest of the dealer, after which he would be arraigned, prosecuted, convicted and probably sentenced to some month’s jail time. However it would make more sense to hold on till such a time when the cumulative amounts sold by him would attract a much longer term of imprisonment. It could therefore be argued that similar considerations informed the failure of officials of the Department of State Services who allegedly witnessed and recorded the handover of the bribe money to arrest Hon Lawan on the spot. They may have decided to wait for further acts of self-incrimination on the part of the Lawmaker before making a move to arrest him and he may just have provided such an act when he rose on the floor of the House to move the motion for the amendment of the Report of his Committee by the removal of the names of Mr Otedola’s company from the list of companies indicted and recommended for prosecution.

Do the facts as stated by Mr Otedola therefore suggest collusion by him with some unnamed powers that be to ensnare Hon Lawan in bribery allegations with a view to discrediting the leadership of the House of Representatives and also to save Mr Otedola and his company from prosecution? Do the said facts themselves disclose grounds for the prosecution of Mr Otedola for bribery? As events are still unfolding it may be impossible to give a definite answer to these closely related questions at this point in time. However it suffices to state that:

(1)    Mr Otedola had a duty, as a citizen to report the intended or actual commission of a crime, including demand of bribe to the appropriate authorities.

(2)    Mr Otedola’s motive in reporting the crime is irrelevant to the guilt of those accused of planning to commit the crime. Thus it is immaterial to Hon Lawan’s guilt (if grounds for such exist) whether he (Otedola) was motivated by a sense of patriotism to his country or a desire to discredit the report of the Committee with a view to avoiding prosecution of his company. Such a motive may only become relevant if Hon Lawan is eventually arraigned, tried and acquitted of all charges and he decides to sue Mr Otedola for malicious prosecution.

(3)    The involvement of the Department of State Services though inappropriate may not in strict legal terms affect the admissibility of any investigative material they garnered whilst their investigation of the allegation lasted. Under Nigerian Law, illegally procured evidence is not for that reason alone inadmissible.

(4)    Grounds would only exist for the prosecution of Mr Otedola if the facts eventually reveal that he was either the initiator or a joint initiator of the bribe offer and only squealed on his co-conspirators to cloak himself with a garb of innocence when it became apparent that the scandal might eventually become public knowledge. 

I will in the next edition discuss the facts as presented by Hon Farouk Lawan.
To be continued.

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