Thursday, September 13, 2007
The Attorney General's Agenda
By Kunle Sanyaolu
AGAINST the backdrop of legal and constitutional reforms proposed by the Attorney General of the Federation (AGF) and Minister of Justice, Mr. Michael Kause Aondoakaa (SAN), the recent government's takeover of the trial of former Abia State Governor, Orji Uzor Kalu is interesting. The incident reportedly caused a drama at the Federal High Court Abuja, as lawyers from the Economic and Financial Crimes Commission (EFCC) traded words with the Director of Public Prosecution (DPP) who represented the attorney-general. A curiosity thus raised is whether the proceedings is any pointer to the reservation earlier expressed by some citizens about government's policy to supervise the prosecution responsibility of crime-fighting agencies such as the EFCC, the Independent Corrupt Practices Commission (ICPC) and the Code of Conduct Bureau. The Federal Government had relied on certain rules in the EFCC laws and those of the other agencies' empowering the federal attorney general to oversee them. This was in addition to the attorney general's power, under section 174 of the 1999 Constitution, to initiate, take over or discontinue criminal proceedings against any person, in the public interest. The power to discontinue such proceedings at any stage of proceedings is otherwise called the power to enter nolle prosecui. The AGF had seemingly given the advice on alleged premise that the agencies, particularly the EFCC, were abusing their authority. That policy came on stream at a time the EFCC was strenuously trying to prosecute about four former governors alleged to have corruptly enriched themselves and laundered public money. However, the policy provoked a public uproar, following perception that the ex-governors were seeking to undermine the EFCC and evade trial. Naturally, people remembered that before he became the justice minister, Aondoakaa was in the legal team of prominent politicians and public office holders. The public uproar was so much that government retracted within 24 hours, saying it had no intention of stifling EFCC's work, despite section 174.
Coming only a couple of weeks after the approbation and reprobation, the AGF's intervention in Kalu's trial is bound to rekindle previous suspicion. According to news reports, lawyers from the EFCC, led by Mr. Adebisi Adeniyi, dutifully announced their presence as prosecutors, as they had done in previous sessions in the case. They were surprised when the DPP in the person of Mr. Salihu Aliyu announced representation for the AGF also as prosecutor. Adeniyi complained that the EFCC had no prior notice of the attorney general's take over bid; and that the manner of the take over in open court was untidy. The DPP would have none of the complaints, as he posited that not only was the Federal Government a party in the case, the AGF is undisputedly the number one law officer in every criminal case. By virtue of that and section 174 of the Constitution, he emphasised, he could come into any criminal case at any stage. The exchange was hot enough for Mr. Justice Babs Kuewumi, the sitting judge, to stand the case down for 10 minutes to allow cooling of temper. The EFCC lawyers withdrew. But Aliyu's subsequent explanation to the News Agency of Nigeria (NAN), that the AGF was not taking over the case and that he only came to clarify some grey areas probably compounded his action and perhaps reinforced public reservation. Aliyu said his action was based on a petition by Kalu's lawyer, Chief Livy Uzoukwu to President Umaru Musa Yar'Adua to the effect that the EFCC was prosecuting in disregard of a subsisting order of an Abia High Court restraining the commission from arresting,, detaining and prosecuting Kalu.
Considering the comprehensive provisions of the EFCC Act, it is curious in the first place that a court could issue an order stopping it from arresting, detaining and prosecuting anybody. That order was reportedly issued on May 31, when obviously Kalu no longer had immunity under section 308 from prosecution. The functions of arresting, detaining and prosecuting form the kernel of EFCC's legal existence. The EFCC of course can be called to order or restrained from carrying out any act, if the court considers that the commission has in any way exceeded its legal bound. But the AGF's intervention in Kalu's case stands the risk of being interpreted as an attempt to assume judicial authority. Ordinarily, court issues orders to be complied with, not in vain. But the court should be in a position to enforce its order and compel compliance. In the Kalu case, we can take cognizance that the EFCC is a powerful organisation that may not easily be compelled. But it is not above the law, and in fact should be seen to respect judicial order. If the EFCC falls short of this, there are probably ways to bring it to order. One, the President can direct the commission's attention to the order with a view to complying. This will not require the AGF to come to court and bully the EFCC. The commission may in fact appeal. Besides, Kalu, through his lawyers, can bring the EFCC's alleged disobedience of court order to the judge, who will then prescribe appropriate sanction.
The AGF or his representative, the DPP did not indicate readiness to continue Kalu's case, even though they gave no specific indication of discontinuance. Kalu's subsequent applications for discharge and vacation of bail terms stand adjourned following the absence of the DPP's counter affidavit. One hopes that the development will not occasion undue delay in trial, as such can also constitute a violation of the right to fair trial. The AGF should have pressured the EFCC to observe fair hearing rather than taking over a case and then fail to respond firmly and quickly. That attitude can also strengthen the belief that the AGF has ulterior motive over his interest in the trial of former governors. Why for instance hasn't the AGF reacted similarly to thousands of criminal cases pending and for which accused persons are being inordinately detained? Is it because the persons involved are ordinary Nigerians without the clout of former governors? Nigerian laws make no distinction between a former governor and other citizens. The AGF therefore needs be careful in applying the law, else he lays himself open to accusation of being discriminatory. Moreover, the AGF should recognise that Nigerians are not enthused with government's professed anti-corruption campaign, where this does not lead to arrest and prosecution of erring officers. Neither are they impressed that public officers convicted for looting public treasury are let off after spending a few weeks in jail. Before May 29, the EFCC had issued statements indicting as many as 29 of 36 governors for alleged financial crime and corruption. Several months later, only three or four have been charged. Nigerians expect the AGF to be in the vanguard of prosecuting as many ex-governors as possible, not to be the agent to stall their trial. If indeed the AGF is interested in anti-corruption, shouldn't he be filing fresh charges, even in collaboration with EFCC? So far, the AGF hasn't filed any charge.
Certainly, the AGF needs to exercise some circumspection. It is not a good omen for him that he started on a controversial note, particularly with the EFCC. The commission had been overbearing, and probably exceeded permissible bounds in discharging its duties. The AGF should not, in attempting to correct that misdemeanor, kill the concept of anti-corruption drive particularly against public officers who abused their offices. Mr. Aondoakaa has set a critical agenda for himself in the areas of enforcement of fundamental human rights, protection of all law-abiding citizens, obtaining redress for injustice, prison reforms, loss of faith in the legal system and anti-corruption. He will need more than rhetoric to succeed, because a lot of his desire cannot be achieved without drastic reform and re-orientation of many agencies and government parastatals that are not directly within his control. More than that, he cannot afford to permit actions or statements that appear to be at cross purposes either with his desire as AGF or with public policy.
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