AGF

AGF, EFCC, And The Rule Of Law

Max Gbanite

New Jersey, USA.

“The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power.”

~ Alexander Hamilton, 1775.

The rule of law is perhaps the most important stabilizing link to the establishment of true democracy. Rule of law does not protect or project any particular ethnic group, the rich or the poor; instead, it guarantees to protect the rights of the offender as well as that of the defender, and any individual’s right to fairness.

As a non-lawyer, but one who intends to defend his rights as enshrined in the constitution of Nigeria, or that any country I live in, I am compelled to state emphatically that I find the recent attack of the Attorney General of the Federation and Minister of Justice (AGF), Chief Michael Kaase Aondoakaa (SAN), by Chief Falana, the President of West African Bar Association, to be in bad taste.

About two years ago, Mr. Falana argued for the plaintiff in a case involving a daughter of Chief MKO Abiola, Chief Tony Enahoro and Dr. Arthur Nwankwo (plaintiffs) vs. General Abdulsalam Abubakar (defendant) in a United States’ circuit court. He posited that the court should allow the case to be tried in the United States, not in Nigeria, because in his view the plaintiffs will not get justice due to “lack of Rule of Law.”

He was probably correct then in his assessment of ‘rule of law,’ as practiced under former President Obasanjo and given that he is an articulate lawyer and a Senior Advocate of Nigeria (SAN)-in-waiting who understands the tenets of the laws of Nigeria. Why now ridicule the AGF on an issue he has already argued and stood for in the United States? It does not make legal sense.

We all agree that Nigeria needs a vibrant and purposeful organization to tackle the menace of corruption and reduce it to the barest minimum. However, such an organization must not be seen to constrict and abduct the rights of the citizens on one hand and obliterate the rule of law and the constitution on the other.

Mr. Nuhu Ribadu as head of EFCC, though a lawyer and policeman by training, has done more harm to the Constitution of Nigeria than the military. I say this without equivocating. Whereas the military could be pardoned -- after all, theirs is government by decree -- Mr. Ribadu should not be forgiven because he is operating under a democratic setup where the rule of law is essential.

In 1999, then defence minister General T.Y. Danjuma, GCON, discovered that President Obasanjo’s nephew, Mr. Makonjuola, was a kleptomaniac who stole well over 400 million naira, he handed him over to the police for prosecution. This novel case of corruption fell on Nuhu Ribadu’s desk in the DPP’s office. Mr. Ribadu prepared almost a 15-count case against the accused. Unfortunately for Nigeria, either for lack of legal knowledge, legal errors or inexperience, and youthful exuberance, Ribadu lost all counts in court. It was said that he went back to prepare another 22 count, but the AGF, after the embarrassment and having seen the legal incompetence displayed and being suffocated by pressure from the presidency, declared the case ‘nolle prosequi’ as a way out.

After the case was discharged, President Obasanjo probably noticed that Ribadu, while short in legal prowess, will make a good cop. Therefore, when EFCC was created Obasanjo appointed Ribadu to head it.

Let us look back at some of the illegalities that Obasanjo in collaboration with EFCC, the police, and SSS brought upon Nigerians and which almost destroyed the same nascent democracy that we are building. His actions so brutalized the psyche of the people and sowed the seed for starvation of democracy.

· The abduction of elected legislative assembly members of Bayelsa State by EFCC: They were taken to Lagos against their will and forced to impeach the elected governor, who was alleged to be corrupt but who was against the third-term ambition of the president. The constitutional requirements for such an impeachment were disregarded. Clearly the rule of law was severely abused.

· The kidnapping of elected legislative assembly members of Plateau State, by EFCC: They were moved to an unknown location against their will and coerced under duress to impeach an elected governor, again without the quorum required under the Constitution. Though alleged to be corrupt and an acolyte of the then Vice President Atiku Abubakar, and equally against third-term agenda, the process was devoid of due process or the rule of law.

· The intrusion by security agencies and the then AGF, Mr. Bayo Ojo, (SAN) in the affairs of Oyo State, resulting in the illegal impeachment of the elected governor without constitutional quorum: The illegality was approved by then AGF Bayo Ojo; his interpretation of the Constitution was so warped and at variance with the reality that I went to the African Independent Television (AIT) to discuss the matter. I called his interpretation ‘an elevated jungle law of justice.’ In this case the rule of law was garrisoned by PDP’s elder-statesman-thug, Chief Adedibu.

· Obasanjo, the state security services, the police, and EFCC were again implicated in the execution of an illegal operation tagged ‘Get Ayo Fayose’ in Ekiti State. The elected governor was again impeached without quorum. Some members of the legislative assembly were kidnapped and moved to a secret hideout, where they carried out the impeachment. Yes, he was alleged to be corrupt, but he claimed that he was impeached because he built a large chicken farm for the state, and this farm was to challenge Otta Farms (owned by Obasanjo). What happened to due process or the rule of law?

· In Anambra State, the police, led by the late AIG Ige, acting on what he (Ige) called orders from above (in this case, Aso Rock villa), and in collaboration with one of the Uba brothers and some shameless Anambra indigenes, abducted a sitting state governor, Dr. Chris Ngige, forced him to sign a forged letter of resignation, and wrecked havoc on the state. The devastation on the people of the state, coupled with the destruction of properties, could only equal that wrought by the 1^st and 2^nd Division of the Nigerian Army during the civil war of 1967-1970. After the attacks, President Obasanjo said nothing and did nothing. Again, the rule of law became a ‘PDP-family-affair’.

· Hon. Morris Ibekwe, a serving member of the Federal House of Assembly, was arrested by EFCC for financial crimes (419), committed against a German national. He was denied bail. He subsequently died in custody. His wife and children were stripped of his assets, and the German--who was equally a crime partner -- was let free. Mr. Ibekwe was denied his human rights protection as dictated by the Constitution, and EFCC erred in denying a serving member of the national assembly bail. I pray that his family will institute a suit for unlawful death against EFCC. They simply killed and buried the man with the wrong arm of law, not the rule of rule.

· Hon. Mrs. Bagge, the chief registrar of FCT courts, was abducted by EFCC based on illegal accusation from her male predecessor. Her rights were abused as EFCC refused to grant her bail, though a lower court had ruled in her favor. It took a higher court’s affirmation to get EFCC to conform to the rule of law. EFCC ultimately lost the case because of lack of preparation and proper investigations. Had they investigated the allegations in the first place, they would have found that the charges against Mrs. Bagge were false. Thank God, she is back to her seat and doing her job with due diligence. The court has since ruled that all her assets and property confiscated by EFCC be returned to her immediately. However, as of the time of writing this piece, it is not clear if EFCC has complied with the order of the courts.

There are many more examples. While these illegalities were going on, the same critics of the new AGF and rule of law were crying foul against EFCC, police, and the SSS on the manner with which EFCC abrogated the rule of law. Have we forgotten the numerous occasions that the SSS, under Colonel Are, invaded media houses, especially Leadership Newspapers without warrants from the courts? On other occasions, they did not obey court orders to release detainees.

Is our memory so bad that we have forgotten how the former Minister of FCT, Malam El-Rufai approved the demolition of houses and structures against court orders? Yes, whilst Mr. Rufai deserves praise for his focused attention in restoring the city, he and his office blatantly flaunted the rule of law and was very rascal in his interpretations of same.

Now, obtaining of court orders does not end a case; instead, it means that the other party needs to apply to a higher court to overturn the earlier order in order to continue with the case. These are the wonderful blessings of democracy.

One might argue that some laws are antiquated and need to be reviewed and reformed, but that is up to the National Judiciary Council, the Body of Benchers, and Nigerian Bar Association. They need to refine the laws, lobby the members of the National Assembly through their chairs of the judiciary committees. Most importantly, lawyers must be cautioned to stop filing frivolous lawsuits which clog the wheel of justice in their attempts to frustrate a case.

Section 36 (1) of the 1999 Constitution stipulates: “In the determination of his civil rights and obligations, including any question by or against any government or authority, a person shall be entitled to fair hearing within a reasonable time by court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”

Simply put and according to The Guardian editorial of September 6^th 2007, “In decoding the expression ‘reasonable time’ the Constitution states that in the case of an arrest or detention in any place where there is a court of competent jurisdiction within a radius of 40 kilometers, ‘reasonable time’ means a period of one day (or 24 hours); and in any other case, a period of two days (or 48 hours), or such longer period as in the circumstances may be considered by the court to be reasonable. If any arrested or detained person, who is not entitled to bail, is not tried within a period of two months or, where he has been released on bail, he is not tried within a period of three months from the date of his arrest or detention he “shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.”

The SSS did not follow the above when they arrested my friend Mr. Gbenga Arulegba of AIT for simply restating what he read in the newspapers regarding the Presidential jet being a used aircraft and not a new one, though President Obasanjo was alleged to have paid for a new plane. The case is still in court, and the government knows that at the end of the day, it will be embarrassed, and that is why they are stalling.

The absence of the practice of rule of law during the eight years of President Obasanjo gave the security agencies the impetus to invade an ANPP political rally in Kano and attack their leaders with tear gas; the inhalation of that nauseous gas by Dr. Chuba Okadigbo, former Senate President, and ANPP vice-presidential candidate, led to his untimely death a few days later.

If the rule of law had been in place, the security agencies would not have stopped the anti-third-term meeting, organized by elected members of the national assembly, some state governors, and the former Vice President Atiku Abubakar, scheduled to be held at Sheraton Hotels, Abuja, and forced the organizers to move the meeting to Niger State government guesthouse.

As a nation clamoring for true democracy, we cannot jettison the very essence of democracy embedded in the rule of law because we are in a hurry to prosecute and jail corrupt offenders. We are all against corruption, and we truly hail Mr. Ribadu and EFCC for his efforts. We must also caution Ribadu not to personalize the affairs of EFCC so that the agency will live on after he is replaced by someone else. This can be accomplished quickly by restoring the rule of law.

The fact that EFCC and other government agencies are asked by the AGF to abide by the rule of law in the pursuit and prosecution of their cases should not be interpreted to suggest that the AGF is meddling in the cases against corrupt officials. Quite the contrary, as a matter of fact, these agencies should see this as a new challenge, a challenge that brings docility to the polity; a challenge that if nurtured and implanted in the psyche of the citizens will go a long way to saving democracy, and give dignity to man, especially now that ‘the animal called man’ has left the stage.

We must band together and encourage President Yar’Adua and his AGF to pursue this matter of rule of law relentlessly until it becomes embedded in our system of thought and operation. After all, democracy without the practice and implementation of the rule of law is tantamount to civil rule by military decree.

The existence of the rule of law in our daily lives guarantees proper elections; it gives the citizens the right to challenge the government in courts when their basic rights are trampled upon. The rule of law allows us all the opportunity to choose our representatives in government, and it eliminates the selection process currently practiced by all the political parties. On the other hand, the rule of law also enables EFCC, ICPC, and other related agencies to do their jobs with due diligence by carrying the population along. Finally, the rule of law is indeed the embodiment of civilization and encapsulation of true democracy.

It is all about issues, not individuals.

Long live Federal Republic of Nigeria.