EFCC, Courts and Prosecution of Corrupt Politicians

At a 2006 plenary session of the Senate, Nuhu Ribadu, then Chairman of the Economic and Financial Crimes Commission, EFCC, appeared to answer questions on why the agency had failed to submit the annual report of its activities to the Senate as stipulated by the act establishing it. Noble as the reason given for Ribadu’s invitation seemed, many Nigerians suspected that the Senate’s call for accountability in the EFCC was provoked by the fear of Ribadu who, in the opinion of many of the senators, had become a monster. By then, the EFCC under Ribadu had not only abetted the impeachment of at least two state governors, but had successfully prosecuted and secured the conviction of Tafa Balogun, an Inspector-General of Police, whose tenure was blighted by greed.

alt

Ribadu told the senators that the EFCC had investigated many sitting governors and dug up dirt on them, but the Commission could not move against them because of constitutional immunity. The senators pressured Ribadu to reveal the names of the governors being investigated as well as their alleged offences. “Abia is number one, not because it is number one alphabetically, but because we have one of the biggest established cases of stealing, money laundering, diversion of funds against Governor (Orji) Kalu,” said Ribadu, who explained that 31 governors were being investigated for various forms of corrupt practices.

On 27 July 2007, Kalu was arraigned before an Abuja High court on a 107-count charge of money laundering, official corruption and criminal diversion of public funds in excess of N5 billion. Specifically, EFCC accused Kalu of transfering billions of naira belonging to the Abia State government to his Slok Airlines. He was accused of transferring the funds over a period of time from the defunct Manny Bank (now part of Fidelity Bank) to Slok’s account at Inland Bank. He was also alleged to have, between 1999 and 2007, moved various sums of government money into Slok Investment, Slok Nigeria Limited, Slok Incorporated and other companies owned by him.

Kalu pleaded not guilty to the charges and his counsel asked the court for bail. But the court, presided over by Justice Binta Murtala Nyako, ordered his detention at Kuje Prison in Abuja, even as she fixed the date for the argument for bail. Kalu regained his freedom four days later. However, the EFCC obtained a court order to freeze his key assets, which would be handed over to Abia State government if Kalu was unable to prove that the funds used to establish his companies were not proceeds of graft. Five years after, with the charges still hanging around his neck, the former governor is touting himself as a possible candidate in the next presidential election. More ironically, Kalu, in a recent interview, announced his plan to establish a non-governmental organisation devoted to the fight against corruption!

He contested the presidency on the PPA platform in 2007 and for a senatorial seat in 2011. Recently, the party called on the appropriate authorities to get serious about the trial of Kalu. “If the EFCC had put him through diligent trial, Orji Uzor Kalu should have been in jail by now rather than on the soap box canvassing for votes,” said PPA National Chairman, Ken Gbalokoma.

Similarly, Theodore Orji, Kalu’s successor as governor, recently said his administration will soon launch a probe into the N29 billion debt he inherited from Kalu’s administration. In a press statement, Ugochukwu Umezue, Chief Press Secretary to Orji, said a key area of the proposed probe will be Kalu’s handling of the Abia State Infrastructural Fund. He also challenged Kalu to explain to Nigerians how he suddenly acquired his multi-billion naira mansion in Potomac, which has been put up for sale, as well as those in Houston, Miami, Atlanta, all in the United States of America. Umezue is also demanding explanation on the acquisition of Slok Airlines, banks and other businesses, which became linked to Kalu while in office. Kalu and his aides continue to describe the allegation of yoking the state with debt as a wild tale. “I didn’t need to steal Abia State funds when I was in government because I was already a fulfilled person before going into government. My sole aim of going into government was to render service to the people of Abia State, and which I did to the best of my ability,” Kalu said through his media aide, Emeka Obasi. In a recent interview, Kalu claimed that what he spent was security vote. “I applied it to the police and they were happy with what I did with the money. I am the only governor that is being prosecuted for spending security vote,” he said.

Despite his claim of innocence, analysts believe that the former governor is largely responsible for the slow pace of his trial, which he would have used to dispel his presumed guilt. With the arrest of Orji and the EFCC’s already advertised view of him as a suspect, Kalu started using the judiciary to stop the agency from moving against him before he left office. On 31 May 2007, two days after he left office, he got the Abia State High Court to issue an ex-parte motion against EFCC, indicating that the Federal High Court lacked jurisdiction to try him on the corruption allegations. This did not stop the EFCC from arresting and arraigning him in court. Soon after his bail, Kalu’s lawyers applied for the charges brought against him to be quashed. The trial court declined to grant the application and held that there is prima facie evidence linking him to the alleged crimes. Kalu scooted to the Court of Appeal, Abuja Division, where he accused the trial court of miscarriage of justice on account of the lower court’s refusal to quash the charges. The appellate court also dismissed his appeal and held that it was satisfied that the EFCC had successfully established a prima facie case that would warrant his trial. Kalu moved to the Supreme Court to further challenge the competence of the charges against him and also contended that the Appeal Court miscarried justice by giving the EFCC the nod to prosecute him over allegations he claimed were baseless.

While his adventure to the apex court was pending, the trial court presided over by Justice Adamu Bello, in line with the subsisting order of the appellate court, resumed Kalu’s trial. The former governor vehemently opposed this procedure and urged the court to await the decision of the apex court on his pending application to quash his charges. He argued that since the apex court was already in possession of the facts of the case, the trial court, in accordance with the principle of judicial hierarchy, ought to stay the proceedings before it. The court obliged him and the trial was consequently stalled pending when the Supreme Court would hear and decide on Kalu’s appeal.

Even as he was trying to use legal means to stop the courts from beaming the searchlight on his tenure, Kalu has also twice appealed to the Presidency to directly intervene and stop the EFCC from continuing with his trial. On 5 August 2007, he wrote to the late President Umaru Yar’Adua, urging him to order the EFCC to discontinue the trial. He complained that the Commission failed to obey a 31 May 2007 Abia State High Court order for stay of proceedings pending the determination of a motion before it. The request was ignored by Yar’Adua. Again, on 9 April 2010, the former governor–in a letter– made reference to the nolle prosequi entered for Ribadu on his asset declaration trial by the Federal Government and asked that he should be allowed the same opportunity. The letter, which was signed by his lawyer, was addressed to the then acting President Goodluck Jonathan and copied to the Attorney-General of the Federation. As in the first instance, the request was also ignored. The former governor’s invitations to the Presidency to intervene continue to make the public wonder if he will ever allow the court to consider the allegations against him on their merit.

When the Kalu was detained in prison, he had three of his former colleagues for company. They are Reverend Jolly Nyame, former governor of Taraba State; Joshua Chibi Dariye, former governor of Plateau State; and Saminu Turaki, former governor of Jigawa State. Dariye, despite the allegations brought against him, won a senatorial seat in the 2011 polls. In July 2007, he was arraigned before an Abuja High Court on a 23-count charge involving the sum of N700 million. He pleaded not guilty to all the charges and was subsequently granted bail. Following the now familiar pattern adopted by former governors facing trial for corruption, Dariye challenged the jurisdiction of the court to try him. He contended that the alleged offence committed by him took place in Plateau State. He also contended that the funds involved belonged to Plateau State and argued that his trial ought to take place in the state, not in Abuja.

The judge dismissed his objections. Dariye approached the Court of Appeal with the same application, but the appellate court threw it out and ordered him to go and face his trial. The case is still pending before the court and has suffered series of adjournments, mostly at the former governor’s instance.

Turaki was docked on a 32-count charge, on allegations that he stole about N36 billion from the treasury over an eight-year period. He was charged along with three companies he was accused of using to siphon the funds as well as an accomplice. The three companies are INC Natural Resources Limited, Arkel Construction Nigeria Limited, Wildcat Construction Limited and Ahmed Mohammed, an accomplice said to be at large. After a brief detention, Turaki was granted bail in the sum N100 million on 27 July 2007 by Justice Binta Murtala Nyako. His bail was vigorously contested by the EFCC, which accused the former governor of possessing multiple nationality and capable of easily jumping bail if granted. But the court noted that his crimes were bailable offences and ordered Turaki to swear to an affidavit concerning all the countries which citizenship he holds. Soon after securing his bail, Turaki, who was a senator between 2007 and 2011, successfully secured the transfer of his trial to his home state. The case was transferred to a Federal High Court now sitting in the state.

Former Enugu State governor, Chimaroke Nnamani, who spent four years in the Senate after leaving office in 2007, was arraigned before a Federal High Court siting in Lagos on a 105-count charge for allegedly stealing the sum of N5.3 billion. He pleaded not guilty and was subsequently granted bail.

Nyame was also docked on a 41-count charge in July 2007. He was alleged to have embezzled the sum of N1.3 billion. At his trial, a graphic illustration was given by Mr. Dennis Orkuma Nev, a Permanent Secretary at the Taraba State Government House, of how the former governor pillaged the state. The witness told the court how Nyame directed him to raise the sum of N100 million being an amount proposed for preparations for the visit of former President Olusegun Obasanjo to the state in 2006. He also told the court that he used his discretion and raised three different memos to the former governor in which he requested for N 32.3 million, N27 million and N42 million respectively. He listed vehicle maintenance, overhaul of power generating sets, security arrangements, general facelift of the capital city (Jalingo), sanitation, civil works, souvenirs and honorarium as the purposes for which the money was to be used. Nev told the court that upon the receipt of the three memos, Nyame approved release of the funds and ordered him to bring the monies to him in his office, an order he complied with. He added that the funds were never used for the purposes for which they were approved.

Part of the allegations against Nyame was that he collected N180 million from USAB International Nigeria Limited. The money was a kick-back from a N250 million contract awarded to the company for the supply of stationery to the state government between January and February 2005. Nyame, in his statement, said he approved the said contract and promised to refund whatever bribe was given to him. “On the issue of my share of N180 million, I must confess; I must contact the government officials, who allegedly gave me the money. Whatever is my share, I will refund,” he said in his statement in response to the allegation. However, he claimed that the amount attributed to him by the EFCC was far above what he took. This in itself is an admission that the allegations against him were not entirely false and should normally have led to a faster trial of the case.

Lucky Igbinedion, former governor of Edo State, is so far the only former governor that has paid back money into state coffers through a plea bargain. In 2008, Igbinedion was arraigned by EFCC before the Federal High Court, Enugu on a 191- count charge of corruption, money laundering and embezzlement of N2.9b. In a plea bargain arrangement, the EFCC through its counsel Mr. Rotimi Jacob, reduced the 191- count charge to one-count charge. The single charge read: “That you, Lucky Igbinedion (former Governor of Edo State) on or about January 21, 2008 within the Jurisdiction of this honourable court neglected to make a declaration of your interest in account No. 41240113983110 with GTB in the declaration of assets form of the EFCC and you thereby committed an offence punishable under section 27 (3) of the EFCC Act 2004” Part of the terms of the plea bargain were that Lucky Igbinedion would refund N500m, three properties and plead guilty to the one-count charge. He agreed to the terms, paid up and subsequently was released.

However, last February, the EFCC appealed the judgment, asking for stiffer sanctions. Igbinedion will now face a N25 billion fraud trial at the Federal High Court in Benin, a development some observers have described as politically motivated.

Boni Haruna, former governor of Adamawa State, was also arraigned before a Federal High Court sitting in Abuja on an amended 28-count charge of embezzling the sum of N161 million. He pleaded not guilty to the alleged crimes and secured bail from the court and soon after, applied for the release of his travel documents to enable him honour a medical appointment in the US. The court granted his request and he made the trip. Upon his return, he gave back his travel document to the court and has been attending his trial. The case is still going on. Abubakar Audu, former governor of Kogi State from 1999 to 2003, was originally arraigned on 30 November 2006 on an 80-count charge of fraud and embezzlement of over N4 billion. The charge has suffered several setbacks, as he had thrice approached the Supreme Court and returned to the Kogi State High Court, where his trial is going on before Justice Saidu Tanko Husseini.

In April, EFCC docked former Governor Gbenga Daniel of Ogun State at the Ogun State High Court, Abeokuta, on a 38-count charge of fraudulent conversion of land, failure to declare assets, stealing and corruptly obtaining properties.

His counsel, Professor Tayo Oyetibo, SAN, said that he had filed a reply to the counter-affidavit filed by the EFCC opposing the application. However, Daniel lost the N20 million case he instituted against EFCC at an Abeokuta High Court for unlawful arrest and detention. His case is still on.

Dimeji Bankole, a former Speaker, House of Representatives, was, on 8 June 2011, docked by EFCC over a 16-count charge relating to contract inflation. On 13 June 2011, EFCC dragged him and Usman Bayero Nafada, his deputy, to court over a 17-count charge of alleged misappropriation of a N10 billion loan borrowed while they were in office. But the case was thrown out on 31 January 2012. However, the N9 billion contract scam hanging on his neck is still ongoing at the Federal High Court, Abuja.

Iyabo Obasanjo, former Chairman, Senate Committee on Health and daughter of former president, Chief Olusegun Obasanjo, was dragged to court by the EFCC on a 56-count charge of N10 million unspent budget of the Federal Ministry of Health. But the court threw the case out.

Ndudi Elumelu, a member of the House of Representatives from Delta State and former chairman of the House of Representatives Committee on Power, was docked at the Federal High Court sitting in Abuja over N5.2 billion fraud charges brought against him by EFCC. But the presiding judge, Justice Garba Umar, ruled that he had no“no case to answer”. However, the same case is still pending at the FCT High Court, before Justice Adebukola Banjoko.

But why do cases against former governors and other politically exposed persons not go beyond the plea stage, some for as long as six years after first arraignment in court? Some analysts have blamed the EFCC’s shoddy investigation of cases it filed for trial for the delays. A chief judge of the Federal High Court once complained of the penchant of the anti-graft agency to repeatedly file for amendment of charges against accused persons after their arraignment. Lawyers to the accused persons always seize the opportunity of the demand for the amendments of the charges to ask for adjournments to enable them study and respond to the new charges.

A perfect example of this was the dismissal of the case filed against three persons – Alhaji Ibrahim Aliyu, a former Permanent Secretary in the Office of the Head of Service; Air Vice-Marshal Abdullahi Bello (retd.) and Mohammed Bakari – over the Halliburton bribery scandal by an Abuja Court earlier this year. The EFCC, which had filed a nine-count charge bordering on corruption, alleged that the accused persons used their companies to benefit from the $7.5m bribe. One year after it filed the case against the accused, EFCC, to the chagrin of Justice Abubakar Umar, failed to arraign the suspects and produce witnesses. The commission kept asking for adjournments any time the case was listed for hearing. After one year of repeated request for adjournments, the judge got fed up. On 26 March 2012, Justice Umar said: “It has been over a year now and still the EFCC is coming up with excuses. The EFCC should know that if it is not ready to prosecute and bring cases to conclusion, it should not apply for leave of court to arraign anybody. The EFCC should know that I am answerable to the National Judicial Council and what will I say is the reason why this case has been at arraignment stage for the past one year? I therefore strike out the suit for want of diligent prosecution,” Umar said while dismissing the case.

Earlier in the year, Justice Charles Archibong of Federal High Court, Lagos, dismissed the amended 26-count preferred against Erastus Akingbola, former Managing Director and Chief Executive Officer of Intercontinental Bank plc (now Access Bank) over what he described as “serious and professional incompetence” of the prosecution team made up of five Senior Advocates of Nigeria.

Non-appearance in court, unending demands for adjournments and amendments of corruption charges by lawyers engaged by EFCC have contributed to the delays experienced in prosecuting its cases. There are even suspicions that many of the lawyers hired by EFCC for prosecution of cases may be conniving with the defence team for elongation of cases, especially those involving highly placed persons, for their mutual benefit.

Sources within the anti-corruption agencies have also accused some members of the judiciary and senior lawyers of colluding with the accused in frustrating the trial of high profile corrupt persons. They cited the ease with which persons accused of crimes like possession of fake currency are prosecuted and convicted within few weeks, while endless delays are granted to the accused in high profile corruption cases–at the behest of the lawyers– as evidence of this.

EFCC sources argued that the adjournment of cases sine-die pending the outcome of appeal on interlocutory injunctions is against the provisions of Section 40 of the EFCC Establishment Act, which clearly states that subject to the provisions of the Constitution of the Federal Republic of Nigeria 1999, an application for stay of proceedings in respect of any criminal matter brought by the Commission before the High Court shall not be entertained until judgment is delivered by the High Court. Also, Section 19 (2) of the Act, states: “The court shall have power, notwithstanding anything to the contrary in any other enactment; (b) to ensure that all matters brought before the court by the commission shall be conducted with dispatch and given accelerated hearing; (c) the court shall adopt all legal measures necessary to avoid unnecessary delays and abuse in the conduct of matters brought by the commission (EFCC), before it or against any person, body or authority.”

One instance cited by the source is the case of Abdullahi Adamu, former governor of Nassarawa State, who was arraigned in court on 3 March 2010 alongside 18 others on a 149-count charge of fraud involving over N15 billion. The case began to suffer delay right from the beginning, with the transfer of the presiding judge to the Asaba Division of Federal High Court. Justice Marcel Awokulehin, who earned notoriety over his handling of the case involving James Ibori, the former governor of Delta State, was asked to take over the trial of the case. However, Adamu’s trial also suffered another setback, as Awokulehin, on 27 April 2010, voluntarily withdrew from from the case, citing personal reasons and “in conformity with his conscience”.

Eventually, Justice David Okorowa took over the case. But the accused persons immediately filed for a motion asking the court to quash the case against them for lack of jurisdiction. Their excuse was that the funds they were alleged to have embezzled belonged to the people of Nasarawa State and therefore the crime does not fall under the purview of federal government and by extension, the EFCC’s. Okorowa, however, ruled that the former governor has a case to answer and urged him to be ready to face trial. Just like the other governors, Adamu and his co-accused appealed the ruling and also served the lower court with a stay of proceedings motion.

The EFCC filed a 15-paragraph counter- affidavit opposing the application for stay of proceedings. The case suffered four adjournments between 24 May and 28 September 2011. When he eventually heard the motion, Justice Okorowa agreed to adjourn the case against sine-die pending the outcome of the appeal. This, EFCC sources said, is in spite of the provisions of Section 40 of the EFCC Establishment Act. The case against Adamu and his co-accused is now at the Makurdi Division of the Court of Appeal, where it has also suffered four adjournments. When the case came up for hearing at the Court of Appeal on 5 June, only one of the three justices was on seat, thus necessitating another adjournment. Adamu and the other accused persons are being represented by four Senior Advocates of Nigeria.

Indeed, there is no better reflection of the determination of some lawyers to ensure that the cases against their clients were not decided on their merits than the argument of Mike Ozekhome, SAN, the defence counsel to Audu, who is being prosecuted by the EFCC at the Kogi State High Court. Ozekhome argued that his client is at liberty to proceed to the Supreme Court as many times as he chooses on any of the allegations against him. And true to that argument, Audu had in the course of his trial, approached the Supreme Court a record three times on different interlocutory injunctions though the case has not entered the trial stage.

An EFCC source also claimed that the senior lawyers are too attracted to money to be made from defending highly corrupt persons that some of them are now totally without inhibition. He cited the an incident in which six Senior Advocates of Nigeria at an Abuja High Court were scrambling to appear for six suspects arraigned on 29 March before an Abuja High Court on a 16-count charge of stealing N32.8 billion.

He also cited the case of a top lawyer, who was EFCC prosecution counsel in the case of former governor Adamu, who went to take a brief to defend former governor Danjuma Goje of Gombe State. Goje was arraigned on 20 October 2011 on allegations of milking his state to the tune of N52 billion. EFCC has already asked the lawyer to return Adamu’s file due to what the agency perceived as conflict of interest.

To overcome the various problems standing on its way to achieve successful prosecution and bringing the corrupt to justice, EFCC has over the years canvassed for various forms of legislative reforms. Ribadu, for instance, unsuccessfully canvassed for the removal of the immunity clause as contained in Section 308 of the constitution. Rather, the legislators toyed with the idea of extending the immunity clause to themselves as contained in a bill sponsored by Henry Seriake-Dickson, now governor of Bayelsa State.

The National Assembly also threw out the Civil Asset Forfeiture Bill, which would have enabled EFCC to seize assets from public office holders who cannot explain how they acquired them. Some commentators said it will be difficult for the EFCC to obtain the support of the National Assembly for legislations that will enhance its work because for some members, that would be like signing their own death warrant.

Members of the National Assembly being tried for corruption by EFCC include Senator Hosea Ayoola Agboola, who is facing trial at the Oyo State High Court. He was charged alongside former governor Adebayo Alao-Akala. Former governors Adamu, Goje and George Akume of Benue State are in the Senate. Akume is the Senate Minority Leader. A clear demonstration of support for the war against corruption by President Goodluck Jonathan, analysts contended, will put even the EFCC on its toes. There is also the issue of funding, with the EFCC complaining that it is not getting enough funds to embark on investigations of its cases.



Please register before you can make new comment