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Reasons Why Senate Committees’ Report On El-Rufai Cannot Stand By Aloy Ejimakor
Recently, two separate senate committees on El-Rufai/FCT made public disclosures of their findings and conclusions from hearings and investigations of the past several weeks on El-Rufai’s handling of affairs of the FCT when he was minister. The committees also made some recommendations in the master interim Report they submitted to the full senate for debate and adoption. In the main, the Report held El-Rufai to have abused his office in the sale of government houses, allocations of land, failure to account for funds accruing to the FCT and disobedience of court orders. The Report also recommended that El-Rufai be prosecuted and (permanently?) barred from holding public office. Below are some of the many reasons why the Report cannot stand.
Contrary to the assertions of the committees, El-Rufai is entitled, just like any other able and willing Nigerian citizen, to purchase the house at issue. The notion that El-Rufai ‘cannot sell an item to himself’ or that he cannot be the lessor and lessee all at once is a fallacy because, at law, he was neither the legal nor the equitable seller (or lessor). Federal Government held all the rights and thus was the sole seller (lessor). El-Rufai was merely the public officer executing the Government mandate to sell/lease, in which case he was entitled as of right to stand as a buyer/lessor in one and the same transaction. And nothing in the extant black letter laws of the Federation of Nigeria and the regulations governing the sale of the houses at issue explicitly prohibited El-Rufai or any other FCT official from being qualified to purchase. Infact, the opposite is true because Federal Government officials were accorded the first right of refusal in many cases or the Government openly favored them over the rest of the citizens. So, why would an El-Rufai, who himself was also a government official, be indicted for taking advantage of an auction/sale that was open to the entire Nigerian public? That the Report made allusions to conflict of interest is to say that El-Rufai was some kind of a judicial officer that was supposed to recuse himself as if the transaction suddenly turned a self-involving judicial proceeding of some sort. Ethicists might be offended by such ‘troubling deals’ but that is as far as anyone can go in taking issues with a practice that remains clearly legal to date. If it were not so, then we must do a time travel to the past to reverse all similar transactions occurring from when FCT came into being.
Regarding the case made on his disobedience of court order(s), that issue is now moot as it has been dealt with or countermanded at the time by the court(s) issuing the order said to have been disobeyed. I recall one instance when El-Rufai had to appear in court under compulsion for a similar infraction. At common law, disobedience of a civil court order is a quasi-criminal offense (a misdemeanor, not even a felony) against that very court (exclusively). It is neither a crime against the state or Nigerian citizens as a whole. Therefore, it cannot be punished by an uninvolved court or in new proceedings brought before another forum – be it a court of law or a legislative chamber. In other words, sole privity is between the disobeyed court and the individual that disobeyed its order. That means that neither the state (including the senate) possesses the clear standing to prosecute the offense, especially after the fact. If at all it is deemed serious enough, the disobeyed court can contemporaneously bring contempt proceedings or take other actions at censure. Most importantly, disobedience of a court order is one of the few petty offenses that either lapses or becomes moot by passage of time or by other supervening events, like judicial condonation. Thus, the senate committees that took these positions should have checked with their attorneys before going public with a recommendation as sweeping and damning as calling for El-Rufai’s prosecution.
Further, the committees are ultra vires in going as far as holding El-Rufai unfit for public office and even suggesting that it apply retroactively. I am sure this issue did not form part of their terms of reference. But even if it did, the conditions for denying a Nigerian citizen the right to hold public office are clearly specified in the constitution. For matters like these, the constitution contemplates an indictment (after due process) by an Administrative Panel/Commission of Inquiry, acceptance of same by government and publication in a white paper. And the indictment has to be for one of the malfeasance enumerated in the constitution. Three of the major issues raised against El-Rufai (contempt of court, time-barred allocations and buying a government-owned house) are not amongst those recognizable as indictable misconducts under the constitution, unless it is finally determined, pursuant to due process by the proper forum, that the actions were in clear breach of the black letter laws on point. The fourth issue – failure to account for some odd 32 billion naira, if found to be credible, needs to be referred to any of the federal agencies (EFCC or ICPC) charged under law with dealing matters of such nature.
Regarding the allocations said to have been made by El-Rufai after the FEC was 'dissolved', the senate needs to keep in mind that El-Rufai, like other ministers, continued to function in acting capacity and thus was in order in continuing to discharge all the powers of an FCT minister - including the power to execute instruments of offers of allocation of land. Further, the dissolution was but a ceremonial event that was never meant to have force of law. If the senate holds otherwise, then we must be prepared to reverse all official actions taken by all ministers of government or members of the FEC after May 15, 2007. And you can even stretch that to include any action taken by President Obasanjo himself because he too was a member of the FEC. If the said dissolution of the FEC on May 15 by OBJ meant legal or constitutional termination of the tenure of all ministers (including El-Rufai), why was it then necessary for President Yar'Adua to again make formal announcement of end of El-Rufai's tenure after he (Yar'Adua) assumed office? And why were some of the ministers, including El-Rufai, allowed to continue for some time after President Yar’Adua was sworn into office? If you accept the committees’ logic, then you must also accept the broader postulate that the official actions of all of OBJ’s ministers who continued to act as such after Yar’Adua was sworn were extra-constitutional - at best; and nugatory - at worst.
Therefore, the committees should have rechecked the pertinent facts and read up on the laws of the Federation of Nigeria before making recommendations that threaten the property interest of thousands of innocent Nigerians, not to talk of taking the extraordinary and punitive step of barring El-Rufai from holding public office.
Aloy Ejimakor is of Law Group, Washington DC alloylaw@yahoo.com
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