THE Attorney General of the Federation, AGF, and Minister for
Justice Mr. Abubakar Malami recently issued a query to the Acting
Chairman of the Economic and Financial Crimes Commission, EFCC, Mr.
Ibrahim Magu asking the latter to explain why the Commission filed
corruption charges against the Chairman of the Code of Conduct
Tribunal, CCT, Justice Danladi Umar, after the same Commission
under Magu had twice, previously, given the man clean bill of
health in the N10 million bribery allegation against him.
Reportedly also the AGF in a separate letter to a private
Lagos-based EFCC lawyer Festus Keyamo, demanded to know by whose
authority the Senior Advocate of Nigeria, SAN filed the said
corruption charge at an FCT High Court in Abuja. And the question
is asked, is there a ‘motive’ -or what the Black’s Law Dictionary
describes as ‘ulterior intent’- to the EFCC’s volte-face, or have
fresh facts suddenly emerged that required the EFCC to withdraw the
clean bill of health it had earlier given Justice Umar?
When, months back, the Senate President Bukola Saraki was
arraigned by EFCC at the Code of Conduct Tribunal, CCT, on the
allegation of false declaration of assets, the man had insisted
that the presiding Judge, Danladi Umar, should excuse himself since
he too was implicated in a separate N10 million bribery allegation
which, incidentally was also prosecuted by the EFCC. Saraki’s
counsel had, justifiably, feared the possibility of bias by Justice
Umar who could have convicted the Senate President as some form of
judicial backhander which could, in turn, fetch him a favourable
prosecution by the EFCC in the bribery case in which he (Justice
Umar) was implicated.
Twice as this demand by Saraki’s counsels would rancorously
dominate proceedings at the Tribunal, twice also the EFCC had
repeatedly insisted that Justice Umar had no case to answer in the
N10 million bribery case. Eventually, and against all expectations,
the CCT was to discharge and acquit the Senate President in the
‘false asset declaration’ case –an outcome many now believe is what
feeds a discreet EFCC grudge and its sudden determination to review
its earlier decision not to prosecute Justice Umar in the bribery
allegation case. Without expressly stating it, the Attorney-General
of the Federation, AGF Malami’s query, as indeed the perception of
the general public, all point to one direction: namely that the
EFCC may be embarking on what in law is referred to as ‘malicious
prosecution’ –the institution of legal proceedings against a person
for other than the ‘motive’ to do justice’; or the institution of
legal proceedings ‘maliciously and without reasonable and or
probable cause’.
And this is what the AGF’s query to Magu appears to be
demanding: that the EFCC Acting Chairman should show ‘reasonable
and or probable cause’ for his newfound determination to prosecute
Justice Umar –so that proving which or failing which the AGF may
either ‘rule out’ or ‘confirm’ the presence of ‘malice’ in the said
EFCC prosecution. Curiously, the AGF’s query to Magu has not asked
for the agency’s proof of “authority” to ‘authorise’ a private
prosecutor to prosecute on its behalf. Rather, it is the query to
the private prosecutor, that has demanded proof of “authorisation
upon which (the SAN) instituted the case under reference”.
It is thus safe to conclude that a proof by Keyamo that it was
the EFCC that ‘authorised’ him will be sufficient ‘fiat’ to
legitimise the filing of his action, since the EFCC, being one of
the statutory agencies that have ‘special prosecutorial powers’, is
deemed at all time to posses the ‘fiat’ either of the AGF, or the
implied ‘fiat’ contained in the very Statute that established it.
And so although the AGF as the Chief Law Officer of the Federation
is said to be the ‘be-all-and-end-all’ when it comes to
prosecution, in actual fact prosecutorial powers are exercised in
threefold: 1, by the AGF or by any Law Officer in his Ministry or
Department, of which the Nigeria Police is part; or 2, by any legal
practitioner authorised by the AGF; or 3, by any legal practitioner
authorised to prosecute by any Act of the National Assembly –namely
those Acts that established bodies with ‘special prosecutorial
powers’, like the EFCC, Custom and Excise, ICPC, Immigration,
NDLEA, NAFDAC, etc. Besides, any private person also -whether or
not he is a victim of an offence- may institute a criminal case,
provided he complies with some requirement of law.
Thus, the awesomeness of the powers of the AGF does not lie in
the exclusive power to initiate proceedings, as much as it does in
the exclusive’ power to ‘take over or discontinue any such
proceedings commenced even by others. His powers lie also
exclusively in the right to decide whether or not to prosecute in
certain circumstances and whether, when he decides to prosecute, to
do so against ‘all’ or just ‘some’ of the accused persons where
they are many. Plus the awesome power of the AGF is evidenced also
by fact that his right to discontinue any criminal proceedings
(which is invoked by the entering of nolle prosequi), cannot be
questioned by any authority –including the courts. The only check
on these vast powers lies in Section 174 (3) of the Constitution
which says that “In exercising his powers…, the Attorney-General…
shall have regards to the public interest, the interest of justice
and the need to prevent abuse of legal process.”
It goes without saying that all other agencies of government
with ‘special prosecutorial powers’ including the EFCC, must also
have regards to the ‘public interest’, the ‘interest of justice’
and the need to ‘prevent abuse of legal process’, whenever they
initiate criminal proceedings. And so what will be the ‘public
interest’ and the ‘interest of justice’ in the instant case of
bribery allegation against Justice Umar other than that the CCT
Chairman should be made to come clean only through the due judicial
process? The only thing we do not know in this case and may not
know until a court of competent jurisdiction determines, is whether
or not the attempt by EFCC to prosecute Justice Umar, after the
agency had previously given him a clean bill of health, constitutes
an ‘abuse of legal process’.
But Section 238 of the Administration of Criminal Justice Act,
ACJA is explicit on that: only defendants that have either been
convicted or acquitted before, on a particular charge are not to be
tried again for the same or kindred offences. At any point the AGF
‘discontinues’ or any prosecutor –either by himself or on the
instruction of the AGF- ‘withdraws’ from any criminal proceedings
against any accused person, “the discharge of (such) a suspect” Sec
107 (4) of ACJA says “shall not operate as a bar to any subsequent
proceedings against him”. The EFCC is not hamstrung by any law not
to reconsider its earlier stand not to prosecute Justice Umar,
especially if its change of mind is in the light of fresh facts now
available to it. But suppose those fresh facts have been dug up
with a ‘malicious motive’ in aid of an ‘intention’ to persecute
Justice Umar, as many Nigerians believe, the question will arise:
‘who other than a court of law, is competent to prove that
‘malicious motive’? Or who other than a court can determine that
Magu has or has not ‘reasonable and or probable cause’ to
reconsider his earlier decision not to prosecute Justice Umar?
Only when Magu’s alleged ‘malicious prosecution’ in the N10
million bribery case, is eventually resolved by court in favour of
Justice Umar can the CCT Chairman sue for tort damages –resulting
from proof by him that there was indeed ‘malice’ in the
‘prosecution’. Conversely, if the EFCC proves its case against the
CCT Chairman in the bribery case, it will be sufficient proof that
the agency had no malicious motive abinitio –even if it may have
had. But let the bribery case go on. Head or tail, it’ll enrich our
legal system!
THE Attorney General of the Federation, AGF, and Minister for
Justice Mr. Abubakar Malami recently issued a query to the Acting
Chairman of the Economic and Financial Crimes Commission, EFCC, Mr.
Ibrahim Magu asking the latter to explain why the Commission filed
corruption charges against the Chairman of the Code of Conduct
Tribunal, CCT, Justice Danladi Umar, after the same Commission
under Magu had twice, previously, given the man clean bill of
health in the N10 million bribery allegation against him.
Reportedly also the AGF in a separate letter to a private
Lagos-based EFCC lawyer Festus Keyamo, demanded to know by whose
authority the Senior Advocate of Nigeria, SAN filed the said
corruption charge at an FCT High Court in Abuja. And the question
is asked, is there a ‘motive’ -or what the Black’s Law Dictionary
describes as ‘ulterior intent’- to the EFCC’s volte-face, or have
fresh facts suddenly emerged that required the EFCC to withdraw the
clean bill of health it had earlier given Justice Umar?
When, months back, the Senate President Bukola Saraki was
arraigned by EFCC at the Code of Conduct Tribunal, CCT, on the
allegation of false declaration of assets, the man had insisted
that the presiding Judge, Danladi Umar, should excuse himself since
he too was implicated in a separate N10 million bribery allegation
which, incidentally was also prosecuted by the EFCC. Saraki’s
counsel had, justifiably, feared the possibility of bias by Justice
Umar who could have convicted the Senate President as some form of
judicial backhander which could, in turn, fetch him a favourable
prosecution by the EFCC in the bribery case in which he (Justice
Umar) was implicated.
Twice as this demand by Saraki’s counsels would rancorously
dominate proceedings at the Tribunal, twice also the EFCC had
repeatedly insisted that Justice Umar had no case to answer in the
N10 million bribery case. Eventually, and against all expectations,
the CCT was to discharge and acquit the Senate President in the
‘false asset declaration’ case –an outcome many now believe is what
feeds a discreet EFCC grudge and its sudden determination to review
its earlier decision not to prosecute Justice Umar in the bribery
allegation case. Without expressly stating it, the Attorney-General
of the Federation, AGF Malami’s query, as indeed the perception of
the general public, all point to one direction: namely that the
EFCC may be embarking on what in law is referred to as ‘malicious
prosecution’ –the institution of legal proceedings against a person
for other than the ‘motive’ to do justice’; or the institution of
legal proceedings ‘maliciously and without reasonable and or
probable cause’.
And this is what the AGF’s query to Magu appears to be
demanding: that the EFCC Acting Chairman should show ‘reasonable
and or probable cause’ for his newfound determination to prosecute
Justice Umar –so that proving which or failing which the AGF may
either ‘rule out’ or ‘confirm’ the presence of ‘malice’ in the said
EFCC prosecution. Curiously, the AGF’s query to Magu has not asked
for the agency’s proof of “authority” to ‘authorise’ a private
prosecutor to prosecute on its behalf. Rather, it is the query to
the private prosecutor, that has demanded proof of “authorisation
upon which (the SAN) instituted the case under reference”.
It is thus safe to conclude that a proof by Keyamo that it was
the EFCC that ‘authorised’ him will be sufficient ‘fiat’ to
legitimise the filing of his action, since the EFCC, being one of
the statutory agencies that have ‘special prosecutorial powers’, is
deemed at all time to posses the ‘fiat’ either of the AGF, or the
implied ‘fiat’ contained in the very Statute that established it.
And so although the AGF as the Chief Law Officer of the Federation
is said to be the ‘be-all-and-end-all’ when it comes to
prosecution, in actual fact prosecutorial powers are exercised in
threefold: 1, by the AGF or by any Law Officer in his Ministry or
Department, of which the Nigeria Police is part; or 2, by any legal
practitioner authorised by the AGF; or 3, by any legal practitioner
authorised to prosecute by any Act of the National Assembly –namely
those Acts that established bodies with ‘special prosecutorial
powers’, like the EFCC, Custom and Excise, ICPC, Immigration,
NDLEA, NAFDAC, etc. Besides, any private person also -whether or
not he is a victim of an offence- may institute a criminal case,
provided he complies with some requirement of law.
Thus, the awesomeness of the powers of the AGF does not lie in
the exclusive power to initiate proceedings, as much as it does in
the exclusive’ power to ‘take over or discontinue any such
proceedings commenced even by others. His powers lie also
exclusively in the right to decide whether or not to prosecute in
certain circumstances and whether, when he decides to prosecute, to
do so against ‘all’ or just ‘some’ of the accused persons where
they are many. Plus the awesome power of the AGF is evidenced also
by fact that his right to discontinue any criminal proceedings
(which is invoked by the entering of nolle prosequi), cannot be
questioned by any authority –including the courts. The only check
on these vast powers lies in Section 174 (3) of the Constitution
which says that “In exercising his powers…, the Attorney-General…
shall have regards to the public interest, the interest of justice
and the need to prevent abuse of legal process.”
It goes without saying that all other agencies of government
with ‘special prosecutorial powers’ including the EFCC, must also
have regards to the ‘public interest’, the ‘interest of justice’
and the need to ‘prevent abuse of legal process’, whenever they
initiate criminal proceedings. And so what will be the ‘public
interest’ and the ‘interest of justice’ in the instant case of
bribery allegation against Justice Umar other than that the CCT
Chairman should be made to come clean only through the due judicial
process? The only thing we do not know in this case and may not
know until a court of competent jurisdiction determines, is whether
or not the attempt by EFCC to prosecute Justice Umar, after the
agency had previously given him a clean bill of health, constitutes
an ‘abuse of legal process’.
But Section 238 of the Administration of Criminal Justice Act,
ACJA is explicit on that: only defendants that have either been
convicted or acquitted before, on a particular charge are not to be
tried again for the same or kindred offences. At any point the AGF
‘discontinues’ or any prosecutor –either by himself or on the
instruction of the AGF- ‘withdraws’ from any criminal proceedings
against any accused person, “the discharge of (such) a suspect” Sec
107 (4) of ACJA says “shall not operate as a bar to any subsequent
proceedings against him”. The EFCC is not hamstrung by any law not
to reconsider its earlier stand not to prosecute Justice Umar,
especially if its change of mind is in the light of fresh facts now
available to it. But suppose those fresh facts have been dug up
with a ‘malicious motive’ in aid of an ‘intention’ to persecute
Justice Umar, as many Nigerians believe, the question will arise:
‘who other than a court of law, is competent to prove that
‘malicious motive’? Or who other than a court can determine that
Magu has or has not ‘reasonable and or probable cause’ to
reconsider his earlier decision not to prosecute Justice Umar?
Only when Magu’s alleged ‘malicious prosecution’ in the N10
million bribery case, is eventually resolved by court in favour of
Justice Umar can the CCT Chairman sue for tort damages –resulting
from proof by him that there was indeed ‘malice’ in the
‘prosecution’. Conversely, if the EFCC proves its case against the
CCT Chairman in the bribery case, it will be sufficient proof that
the agency had no malicious motive abinitio –even if it may have
had. But let the bribery case go on. Head or tail, it’ll enrich our
legal system!
Read more https://nairalaw.com/on-efccs-magu-and-the-cct-chair/