EFCC, politicians and corruption war

From Godwin Tsa Abuja

The Economic and Financial Crimes Commission, EFCC, is the main statutory agency that is embodied with the responsibility of fighting financial crimes in Nigeria.

By virtue of Section 7 (2) of its enabling law/Establishment Act 2004(9),  EFCC has among other functions the investigation of all financial crimes including the advance fee fraud, money laundering, counterfeiting, illegal charge transfers, futures market fraud, fraudulent encashment of negotiable instruments, computer credit fraud and contract scam.

It is also empowered to examine and investigate all reported cases of economic and financial crimes with a view to identifying individuals, corporate bodies or groups involved. It can also identify, trace, freeze, confiscate or seize proceeds derived from terrorist activities, economic and financial crime related offences or the properties the value of which corresponds to such proceeds.

This is their primary responsibility since its inception in 2004. It has targeted high level corruptions by both private and public officials with some remarkable successes recorded. Politicians and businessmen from both the private and public sectors are always on the radar of the commission for one financial crime or the other.

The commission has in the past been hailed for its initial success in bringing high profile corrupt public and private individuals to book and it was generally seen as a bold move in tackling crime and other misdemeanors that had dented the nation’s image locally and abroad.

However, lately, the commission has lost its steam and seems to have veered off its lane by the dancing steps that have called for serious concerns by the well-meaning public who are worried that the anti-corruption crusade was being hindered by political considerations.

These negative perceptions became rife given the closeness of the leadership of the organisation to successive administrations and its seeming willingness to be used as an attack dog executing vindictive wars of any sitting president.

Clearly, recent events in the country have put the commission on collision course with Nigerians.

NAIRA ABUSES

First was the arrest and subsequent conviction of popular actress, Oluwadarasimi Omoseyin in February this year,  for abuse of naira notes by spraying the currency on a public event, which was contrary to Section 12 (1) of the Central Bank Act, 2007(10).

The commission had also on April 5, 2024, secured the conviction of controversial cross-dresser, Idris Okuneye, also known as Bobrisky, on similar charges for which he was sentenced to six-month imprisonment on Friday, April 12, 2024. The judge, Abimbola Awogboro, imposed the sentence after the 31-year-old socialite pleaded guilty to the alleged offences.

This was swiftly followed by the filing of a three-count charge against popular Instagram celebrity, Pascal Okechukwu also known as Cubana Chief Priest for allegedly spraying and tampering with the naira at a social event contrary to the provisions of the Central Bank Act of 2007.

But it’s the position of vast Nigerians that there is the greater task ahead for the EFCC. That is the real war against graft and other acts of corruption.

EFCC AND YAHAYA BELLO’s SAGA

Another incident that has put the EFCC on spotlight is its hide and seek game with the immediate past Governor of Kogi State, Alhaji Yahaya Bello over a 19-count charge which he is yet to take his plea.

In its bid to arrest and prosecute the former governor on alleged N8bn money laundering related offences, heavily armed operatives from the commission had besieged his Abuja residence in a gestapo style that has attracted mixed reactions from Nigerians.

Sections 8 (1) of the Anti-Torture Act, 2017; Section 6 of Administration of Criminal Justice Act (2015); and section 35 (2) and (3) of the 1999 constitution, enjoined the fair and humane treatment of a suspect whether his/her arrest, investigation, detention pending trial and arraignment.

While the EFCC is statutorily empowered to fight economic crimes, the way and manner in which it does so must however, not portray any impunity or suggest that it’s above the law.

Having been charged before a court of law, Bello has automatically become the subject of the court which has become seized of the matter. Therefore, his availability in court to provide answers to the charges against him is controlled by the court and not through any unlawful means.

Before his Abuja residence was invaded by operatives of the EFCC, Bello who feared that his fundamental rights were being threatened or about to be threatened had secured an interim restraining order against the EFCC from arresting and detaining him.

Justice Isa Abdullahi of the Kogi State High Court, having satisfied with the reasons adduced by Bello in his exparte application, gave an interim restraining order against the commission from taking any action against Bello, pending the determination of the substantive matter, raised in his fundamental rights enforcement suit.

But the EFCC approached the Abuja division of the Court of Appeal to set aside the restraining order describing it as an attempt by Bello to escape prosecution.

While this was going on, the commission rushed to the Abuja division of the Federal High Court and secured a warrant of arrest against Bello after filling a 19-count charge of alleged money laundering related offences against him before Justice Emeka Nwite.

Meanwhile, attempts by the commission to vacate the interim orders of the Kogi State High court at the appellate court failed, forcing it to withdraw the appeal on the grounds that it has been overtaken by events.

Justice Nwite has already fixed May 10 to deliver ruling on the application by Bello’s legal team challenging the warrant of arrest.

A consortium of lawyers under the aegis of Guardians of Democracy and Rule of Law, on Friday, urged the Economic and Financial Crimes Commission, EFCC, to follow due process in its bid to prosecute the former governor.

In a statement in Abuja, the legal practitioners, decried what they termed as media trial of the defendant by the anti-graft agency.

They equally faulted the ex-parte order of arrest which they described as premature, noting that it was issued at a time there was a subsisting order from another court of the same coordinate jurisdiction.

The group, through its Director-General, Mr. Samson Osondu Abugu, said there was need to accord every defendant the right of presumption of innocence as enshrined in the 1999 Constitution, as amended.

Abugu said it was wrong for the Chairman of the EFCC, Mr. Olanipekun Olukoyade to arraign the defendant in the media during an interview he granted recently, when the matter is already pending in court.

Prof Ozekhome faults Media Trial

A Professor of law and Senior Advocate of Nigeria (SAN), Prof. Mike Ozekhome, who condemned what he described as media trial employed by the EFCC against Yahaya Bello.

Ozekhome stated that media trial can be highly dangerous and prejudicial to a fair trial for several reasons: “Media trial is an improper use of the media to tarnish the image of an accused person before, during or after a trial. It is used to dampen the resilient spirit of an accused person. The Commission used this craft greatly, especially during the tenure of Ibrahim Magu; and it greatly chipped away some nobility in its patriotic war against corruption.

He noted that central to the court’s rebuke is the condemnation of the anti-graft agency’s reliance on media sensationalism, characterized as a form of trial by public opinion. The court firmly asserted the principle that the agency’s role is not to act as both prosecutor and Judge simultaneously; but rather to present evidence within the confines of due procedure. This critique underscores the imperative of upholding the rule of law and granting individuals, including Bello, their rightful day in court devoid of extrajudicial influences.

Yahaya Bello  has been trending in the news in a manner that calls for concern with its ramification cutting across serious issues such as fundamental human rights, the rule of law, and then other matters of political significance. As far as we are aware,  Bello had obtained a court order restraining the EFCC from arresting, arraigning or prosecuting him.

EFCC in Contempt of Court

The EFCC has been accused of acting in contempt of court for violating the restraining orders against it by the Kogi State High Court.

A legal practitioner and human rights activist, Onyiku Emmanuel stated,  “even when the EFCC had appealed against the order, submitting itself to the jurisdiction of the court of appeal, it still went ahead to the house of the former governor, Bello to arrest him and meet a brick wall.

“In the face of a subsisting order against the EFCC not to arrest Bello and the subsequent move by EFCC, violating that order amounted to contempt of court.

“The remedy against an order of court is to vacate the order or to appeal the same, and most certainly not for law enforcement to thump its nose at the court and decompose into lawlessness and brigandage,” he added.

It is trite that all court orders no matter how stupid and foolish, must be obeyed to the later until set aside.

This principle is well enunciated in Rt. Hon. Michael Balonwu and It’s V. Governor of Anambra State and Ors (2007) 5NWLR (Pt.1028) pg. 488 at 564-565 Paras B-G per Denton-West JCA.

An order of court whether valid or not must be obeyed until it is set aside. An order of the court must be obeyed as long as it is subsisting by all no matter how lowly or lightly placed in the society. An act of disobedience towards an order of court can render any further act by those who have acted disobediently to sanctions from other courts because no court would want its orders flouted. This is what the rule of law is all about; hence, the courts have always stressed the need for obedience to court orders”.

When court orders are disregarded or delayed, it undermines the credibility and authority of our legal institutions, leading to a breakdown of the delicate balance of power that our democracy relies upon.

As it stands today, any action taken against Bello by the EFCC without complying with the subsisting orders of the High Court of Kogi will be unconstitutional, null and void.

Section 36(5) of the 1999 Constitution as amended confers innocence on a suspect until he/she is proven guilty by a court of competent jurisdiction, not by any prosecuting or investigating agency. The implication is that no person should be pronounced guilty or shamed for any allegation of crime until proven guilty before a court. What Olukoyede did in that media rendezvous was akin to a public parade of Bello before his trial and conviction. This matter has been settled in several court judgments including in Ndukwem Chiziri Nice v. AG, Federation & Anor. (2007) CHR 218 at 232 in which Justice Adebukola Banjoko held that ‘The act of parading him (the suspect) before the press as evidenced by the Exhibits annexed to the affidavit was uncalled for and a callous disregard for his person.’ In simple terms, it means an affront on the fundamental rights of the suspect.

Indeed, the Commission has gradually begun to be perceived by the public as an instrument of blackmail and intimidation by the government.

The result is that Nigeria is still rated among the countries with high level of corruption. By the 2023 Corruption Perception Index (CPI) released by Transparency International (TI) in January this year, Nigeria ranked 145 among 180 countries surveyed.

By its own admission,  about $20 trillion had been stolen in 2015, from the national treasury by leaders who had access to the nation’s money between 1960 and 2005.

Some of the perpetrators of the heinous acts against the country and their cronies are still in the government houses at state or federal level or other agencies. The opacity and dirty deals in the oil sector, also portray Nigeria as a country that is neck-deep in corruption.

For the anti-corruption war to have its effect and meaning and be convincing, it is not enough for the EFCC to go about raking in petty thieves, internet fraudsters or those abusing the Naira at social functions, while leaving out the brains behind huge crimes.

The EFCC may have done well in securing conviction for those trifling with the Naira. But leaving the real thieves to roam freely, casts doubts on the genuineness of its agenda.