THURSDAY Column with Mohammed Adamu
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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 favorable 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 ‘authorize’ a private prosecutor to prosecute on its behalf. Rather it is the query to the private prosecutor, that has demanded proof of “authorization 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 ‘authorized’ him will be sufficient ‘fiat’ to legitimize 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 authorized by the AGF; or 3, by any legal practitioner authorized 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 favor 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!