RAMON OLADIMEJI writes that last Friday?s inaugural speech by the new President of the Nigerian Bar Association, Mr. Abubakar Mahmoud (SAN), suggesting that the Economic and Financial Crimes Commission should be stripped of its prosecutorial power has further fuelled the undercurrent of suspicion or mistrust that exists between the EFCC and Nigerian senior lawyers
The Economic and Financial Crimes Commission, Nigeria?s foremost anti-corruption agency, does not trust the Nigerian Bar Association, the body of all lawyers in the country.
For its poor record of conviction of high-profile treasury looters since its creation in 2003, the EFCC has remained the butt of public ridicule, and the agency?s current acting Chairman, Ibrahim Magu, prefers to blame lawyers for the agency?s failure.
The EFCC believes, as has been voiced on many occasions by Magu, that lawyers are the ones aiding treasury looters to evade justice by exploiting the loopholes in the nation?s laws to frustrate the trials of the looters.
The EFCC also believes, as expressed by Magu, that senior lawyers in the country, who are acting as counsel for alleged treasury looters, are also beneficiaries of proceeds of corruption by taking what the anti-corruption czar described as ?clearly tainted briefs?.
Magu once said, ?The society is not served when prominent members of the Bar not only take clearly tainted briefs but even facilitate the commission of crimes by knowingly supplying the technical know-how and later helping in the dispersal of proceeds of crime.?
The hard feeling that exists between these two institutions graduated last March from mere feelings to physical attack when the EFCC descended on two Senior Advocates of Nigeria, Mr. Rickey Tarfa and Dr. Joseph Nwobike, by slamming bribery charges against them.
Tarfa and Nwobike were arraigned by the EFCC for allegedly offering gratification to judges to pervert the course of justice.
And then the EFCC became too certain that it was fighting a cabal when no fewer than 38 SANs rose from across the country to lead over 90 other lawyers to defend Tarfa.
The list contained the names of many prominent members of the Nigerian Bar, led by a former President of the NBA, Chief Wole Olanipekun (SAN).
Alarmed at this show of solidarity, Magu had then declared, ?They have constituted themselves into a bloc surely to fight us back because they are beneficiaries of proceeds of corruption?
?Now, it has become a matter of concern because you now have professionals paid to fight us back?It is a solidarity against what we are doing. They are in solidarity with corruption to fight us back. And for me, I am already sold out. In fact, I prefer to die fighting corruption; that will be a great honour.?
Magu?s vow and the subsequent suspension of one of the judges caught in Tarfa?s web of alleged bribery, Justice Mohammed Yunusa, may also not be unconnected.
Justice Yunusa, to whom Tarfa allegedly gave a bribe of N225,000, was recently suspended by the National Judicial Council for granting many questionable restraining orders against the EFCC, including in the case of a former Aviation Minister, Ms. Stella Oduah, who sought the court?s protection from the EFCC prosecution over the purchase of two armoured BMW cars at an alleged questionable price of N255m in 2013.
Mahmoud, who was sworn in last Friday as the 28th President of the NBA in Port Harcourt to steer the wheel of the association for the next two years, was not unaware of the hard feeling between the EFCC and the NBA.
While campaigning to be elected the NBA President, the former Attorney-General of Kano State had begged to be voted to redeem the negative public perception of the NBA as a body of corrupt elements.
During his visit to the Ikeja branch of the association in April, Mahmoud stood before his lawyer colleagues and told them that the NBA was under public attack as a result of the public impression that lawyers were frustrating trials of treasury looters.
He said, ?In my 35 or 36 years of professional practice, I have not seen the Bar under the kind of scrutiny that it is now. There is an online survey going on, I don?t know if some of you have seen it, about what ordinary people think about the legal profession. If you haven?t seen it, please go and check. The majority of the opinion poll ? and I am talking about absolute majority, 90 per cent ?think lawyers are crooks; they think we are helping the politicians to engage in corruption and in subverting democracy and in subverting the rule of law and some of the recent things that we have seen have not helped that impression.
?Now, what it means is that we, lawyers, must rise up to the challenge. It can no longer be business as usual. We are facing a great challenge and I urge you to notice it.?
Mahmoud urged his colleagues to give him the responsibility of ?reinventing? the NBA and working to correct the negative public perception of the NBA by electing him as its next President.
He said, ?In electing me, you are electing a President who will ensure that we have a great new Bar, carefully independent and that can spearhead the reinvention ? and I am not using the word lightly ? of the legal profession as a thorough professional body.
?Already I know a number of my colleagues, very senior members of the Bar, I don?t want to mention their names, that are working very hard to look at this issue. We need to ensure that we look at our legal profession, take charge of it, reinvent ourselves, professionalise the Bar and look at the regulation of the Bar itself. If we don?t do this, somebody else is going to come and do it for us.We need to take charge of things and flush out all the bad eggs. And when I say flush out, I really do mean flush out. We must take charge of that process.?
The NBA election took place on July 30 and 31 and Mahmoud was declared winner with 3,055 votes ahead of his opponent, Chief Joe-Kyari Gadzama (SAN), who polled 2,384 votes.
Gadzama had rejected the election result and had headed for court to seek redress but Mahmoud was sworn in last Friday amidst controversy.
In his inaugural speech nearly 30 pages, Mahmoud reiterated his plan to sanitise the NBA and expose its bad eggs, he, however, courted trouble when he made a call for the stripping of the EFCC of its prosecutorial power.
He said, ?We commend the efforts of the Economic and Financial Crimes Commission for the work it is doing and for its modest achievements. However, going forward the NBA must demand the reform of the institution itself. We need to define its mandate more narrowly and more clearly. In my view, its broad operations as an investigative and prosecutorial agency should be reviewed.
?I recommend strongly that the EFCC be limited to investigation. The decision to prosecute and the conduct of the prosecution must be by an independent, highly resourced prosecution agency. In addition, the EFCC and the prosecution agency must be secured from political interference in their activities. There is absolutely no reason for it to report operationally or otherwise to the Presidency.?
But EFCC has concluded that Mahmoud?s call was motivated by his desire to shield high-profile treasury looters from being prosecuted.
In a statement through its spokesman, Wilson Uwujaren, the EFCC, in a very caustic tone, attacked the Mahmoud-led NBA, describing it as ?a Bar populated or directed by people perceived to be rogues and vultures.?
The EFCC statement read in part, ?The commission views, with concern, the call by the NBA President that the EFCC be stripped of its prosecutorial powers.
?The commission?s discomfort over this seemingly innocuous proposition, stems from the fact that Mahmoud was silent on the reason for his position. More importantly, the commission cannot comprehend how the redefinition of the EFCC?s mandate in narrow terms, ultimately whittling it down, fits into the clamour by Nigerians and the vision of the President Muhammadu Buhari administration for a vibrant and courageous anti-corruption agency.
?Instead, Mahmoud?s suggestions appears perfectly in sync with a cleverly disguised campaign by powerful forces that are uncomfortable with the reinvigorated anti-graft campaign of the EFCC and are hell-bent on emasculating the agency by stripping its of powers to a prosecute with the lame excuse that an agency that investigates cannot also prosecute.
?The question Nigerians must ask the Mahmoud-led NBA is, what is wrong with the EFCC prosecution? Mahmoud is in a position to answer this question. He was the Attorney General of the Federation?s counsel in the trial of former Delta State Governor, James Ibori, at the Federal High Court, Asaba, a case which the EFCC lost in questionable circumstances.
?But the same ingredients from that case were used to fetch Ibori a 13-year jail term in London. Mahmoud is also the commission?s counsel in the appeal against the infamous perpetual injunction from arrest and prosecution by a former Rivers State Governor, Peter Odili, which is still pending before the Court of Appeal in Port Harcourt, many years after it was filed.
?It is too much of a strange coincidence that the suggestion to strip the EFCC of its prosecutorial powers is being floated few months after the commission, in an unprecedented fashion, arraigned some senior lawyers for corruption. For the avoidance of doubt, the commission has recorded more convictions in the last one year than all the states and federal ministries of justices combined.
?Against this background, the current campaign appears to be self-serving, intended to create a cabal of untouchables who can be investigated but may never be prosecuted.?
Expectedly, the NBA did not take kindly to the EFCC describing its members as rogues.
In a statement by its General Secretary, Isiaka Olagunju, the NBA demanded a retraction of the statement by the EFCC.
Olagunju said, ?The NBA condemns in the strongest term the use of abusive and uncivil language of ?rogues and vultures? and such structures by the public authority. Name-calling and abusive language is not expected of any public institution. It is unacceptable. The NBA demands unequivocal withdrawal of this statement and an unreserved apology from the EFCC.?
Agbakoba backs Mahmoud
Mahmoud, however, has, however, said he had no regret calling for the reform of the EFCC.
Maintaining his stand, he said, ?There is no institution that should be sacrosanct in any democratic environment. Every institution should be scrutinized and its performance and responsibilities critically subjected to discussions.?
Though his call for the EFCC reform had drawn wide criticisms and declaimers, Mahmoud is not standing alone.
Standing with him is a former NBA President, Dr. Olisa Agbakoba (SAN), who in a statement on Tuesday suggested that the prosecutorial activities of the EFCC should be taken over by the National Prosecuting Coordinating Committee, recently created by the Attorney-General of the Federation, Mr. Abubakar Malami (SAN).
Agbakoba took this position on the platform of Human Rights Law Service, an organisation to which he is a senior counsel.
He said, ?Whilst we have no objection with the EFCC investigating or the courts adjudicating, we believe the powers to prosecute should be vested in an independent highly resourced prosecuting agency. We appreciate the enormous work done by the EFCC since its establishment in 2003. 13 years on, the Federal Government needs to rejig the EFCC and other crime-fighting institutions to perform optimally. We support plan by the Attorney of the Federation to establish a National Prosecuting Agency.?
Sagay, others back EFCC, knock Mahmoud
On the other hand, however, the Chairman of the Presidential Advisory Committee Against Corruption, Prof. Itse Sagay (SAN), described Mahmoud?s call to divest the EFCC of its prosecutorial power as ignorant and mischievous and one against national interest.
Sagay, in a telephone interview with our correspondent, said, ?The NBA President is either ignorant or mischievous; it cannot be any other thing; because the EFCC is the pride of the nation, which is the one institution we parade today as effectively fighting the anti-corruption war. It is the only example we can give to the whole world that we are sincerely and effectively fighting corruption. So, anyone who wants to reduce the power and the capacity of the EFCC does not mean well for this country.?
A member of the National Prosecuting Coordinating Committee, Mr. Dipo Okpeseyi (SAN), dismissed the suggestion that Malami created the NPCC to usurp the prosecutorial power of the EFCC.
He argued that in view of the volume of criminal cases in the country, the best that could be done is to further strengthened all crime-fighting agencies, including the EFCC, rather than divest them of the power to prosecute.
Okpeseyi said, ?For now, we can only complement each other, because we don?t have enough prosecutors and that is why even cases that are prosecuted in the magistrate courts are still being handled by policemen. The EFCC, to some extent, also engages some private lawyers. The major issue is that we don?t have enough prosecutors now in Nigeria and that?s why the Attorney General has taken the step to have prosecutors trained?There might not be any need for the National Prosecuting Coordinating Committee to have any matter assigned except there are exceptionally bad situations and we believe that there is a need to have a second look at them. I don?t think there will be any clash, because they are all complementing each other.?
As against the call by Mahmoud that the EFCC?s activities should be limited to only investigation while another agency should prosecute, Okpseyi believes that there would be better chances of conviction if investigators and prosecutors work closely.
?It is also common knowledge that more than 80 per cent of the cases are cases that are not well prosecuted. And at times, all that?s needed is putting the relevant evidence together. If the prosecutor and the investigator don?t understand each other very well, investigators might even keep some evidence or some documents behind, believing that they are not vital. So, that is why what the Attorney General is trying to do now, apart from training investigators, is to ensure that the prosecutors and investigators are readily in contact. When they are in contact, there is a synergy; they will better understand each other, knowing that they are working together, so they can freely discuss.
?You know, it?s human nature to want to keep things, but when they closely work together, the prosecutor can say, ?No, how about this area? Or how about skipping this? I don?t think they are relevant. Or just bring that, let?s see it?. And that might just be the key to unravel the case.
?Unlike what we have before that investigators are investigating, when they finish they just give the file to one prosecutor to go and prosecute; and then the prosecutor would be looking for the investigator and looking for the witnesses and he does not know them and the AGF wants to put an end to all of that.?
A Lagos-based lawyer, Mr. Jiti Ogunye, also differed with Mahmoud and described his call as uncalled for and misguided.
Ogunye said it was suspicious that Mahmoud singled out the EFCC out of all the other agencies that have prosecutorial power and even made the call in his inaugural address.
?Why people are angry with this call is that it doesn?t advance the anti-corruption struggle; two, this is not the first time that this call is going to be made. Why is it that the NBA, under the leadership of these seniors, is always urging that the EFCC be stripped of its prosecutorial power? In the past, under Mohammed Adoke, under Michael Aondoakaa, Bayo Ojo, these senior lawyers will always argue that it is the office of the Attorney General that can prosecute, believing that once that power is taken away from the EFCC, they will go and queue up for briefs. So, they are motivated by pecuniary interest and not national interest. And that?s why people are disclaiming this.?
Rather than concern himself with how the EFCC could be stripped of its prosecutorial power, Ogunye said what Mahmoud was expected to was to advocate how the EFCC and other agencies could employ more lawyers to address the problem of unemployment among lawyers.
Like Okpeseyi, Ogunye stressed that it would serve better purpose for prosecutors and investigators to work closely.
He added, ?As a matter of practical importance, as a prosecutor myself, we?ve been talking about the need to have lawyers stay with investigators at the time they start their investigations, because in most cases, they (investigators) won?t ask the questions they ought to ask, they won?t investigate certain things they are supposed to investigate; they won?t investigate alibi, for example. All these have implications for successful prosecution of cases. So, when the file is then given to a prosecutor to go and try, he then discovers that no proper investigation has been conducted and it is too late at that stage.
?When you have an anti-corruption agency having lawyers in-house, it becomes possible for those lawyers to work hand-in-hand with the investigators as the cases are being investigated. so that errors and mistakes at that preliminary stage could be avoided. So, for an NBA President, who says he?s been a prosecutor, not realising that and then calling for the agency to be stripped of its prosecutorial power.?