Fourth, rule of law has been part and parcel of our African culture. In our villages and communities, we all know that once a person makes a report to an elder, the latter does not allow punishment to be meted out until the other party to the dispute has stated his (not gender sensitive) own side of the case.
The position of the Courts cannot be interpreted to mean anything different from that of the elder in this instance. Whenever any person seeks a Court’s intervention, it is the rule of law that he seeks, a non-violent way of redress. It should be appreciated that the Court cannot fold her arms and allow the rights and privileges being sought by that person be thwarted by the other aggrieved party when the she is yet to decide on the issue.
As such, there can be no “irresponsible” pronouncement from the Courts until all the facts are presented, argued and defended by competent lawyers and the Court still failed to be fair and just in her judgement. Even then, there are higher courts to which recourse can be made when seeking redress.
These include the Appeal and Supreme Courts. Consequently, I would want to believe that the AGF was under pressure to make such a horrible remark on a High Court when all other avenues of redress are yet to be exploited. The AGF must not buckle in the struggle to enshrine the rule of law!
Fifth, we all acknowledge that the EFCC (Establishment) Act 2004 empowers the commission to wage war on financial crimes because corruption has become endemic in our national life. It is a war that all well meaning Nigerians must support to save the nation.
Why? Mr. Ribadu gave a graphic description at the University of Ibadan when he added that “corruption not only distorts competition, hinders economic growth and endangers the stability of democratic institutions, it pulls down the moral foundation of society”.
He stressed that it was corruption that has disallowed people from benefiting “in any significant regard from the famous lingo of the moment, ‘dividends of democracy’”. I quite agree with him. Therefore, corruption must be fought. But by how, will it be violently or peacefully?
The foregoing excerpts from the speech of Mr. Ribadu also paint the picture of what type of trainings and indoctrinations the officials of the EFCC must have gone through. Who says that the EFCC cannot intimidate a suspect through the array of hefty officials holding various types of arms; from the simple handcuffs to guns and tainted vehicles while preparing for investigations and arrests?
Who says that the suspect too cannot assemble a group of touts to shield himself (not gender sensitive) from investigation and arrest? Who says that there can be no casualties in the ensuing face-off between the touts and the law enforcement officers? Definitely, none! But who says that such casualties cannot be avoided, especially where our unbiased umpire, the Courts of Justices, are involved?
Avoiding intimidation and violence makes the routing of civil and criminal cases through the judiciary a sine qua non. This is a point that the EFCC must equally note. Court pronouncements can, therefore, not be interpreted to mean obstacle to the war against corruption unless we want to deceive ourselves.
Sixth, perhaps Mr. Ribadu realized this fact. In spite of the enormity of the problem, he asserted in the speech that “However, as we always promise, we will do our best, WITHIN THE FRAMEWORK OF OUR MANDATE, but will never succumb to blackmail and intimidation”. When there is a mandate, there is bound to be a set of guidelines or laws.
What is the mandate of the EFCC regarding the war on corruption? Does the mandate place the EFCC under, at par or above the AGF? Does the mandate empower her (i.e. EFCC) to disobey court orders? We need to examine all these one by one.
The first question has been answered by the EFCC Act 2004, part ii – Functions of Commission. (See: Economic of Financial Crimes Commission (EFCC) Act 2004, Federal Republic of Nigeria Official Gazette No 50, Vol 81, 4 June 2004). The second question has been answered too by the same act, the EFCC (Establishment) Act 2004, Part VII – Miscellaneous Provisions, Clause 43.
It stated, and I quote: “The Attorney General of the Federation may make rules or regulations with respect to the exercise of any of the duties, functions or powers of the Commission under this Act”, unquote. Unfortunately, I have not heard of or read write-ups from any of our legal luminaries making reference to this very important provision in Clause 43. I cannot understand the oversight!
Apart from the express provision in the EFCC Act referenced above, the second question too has been successfully answered by the former President of the Nigerian Bar Association (NBA), Mr. Wole Olanipekun (SAN).
He posited that “the office of the AGF is created by the Constitution, vide Section 150: (i) Of all the ministers of government at the federal level and the commissioners at the state levels, it is only the office of the AGF that has been created by the Constitution and the same CONSTITUTION GOES FURTHER TO MAKE HIM THE CHIEF LAW OFFICER OF EITHER THE FEDERATION OR A STATE (capitals mine)”, unquote (See: Wale Olanipekun: Before the AGF is taken to Golgotha, the Punch newspapers, Monday, Oct. 1, 2007, pg. 43).
He added that the prosecution powers of the AGF were granted by “Section 174 of the Constitution”, and that it covers the “EFCC (Establishment) Act 2004 or any act of Parliament / National Assembly creating the ICPC, Immigration, Customs & Excise, NDLEA, NAFDAC, Police, State Security Services (SSS) etc”, unquote.
Obviously, the AGF is duly empowered to supervise the activities and operations of the EFCC. Thus the mandate of the EFCC does not place it at par or above the AGF but under the latter. In other words, the EFCC should be responsible to the AGF.
Clause 19 of the EFCC Act 2004 also empowers the State or Federal High Court to hear and speedily determine the cases brought before her as a matter of priority. It never mentioned that the EFCC should set aside any High Court pronouncements, no matter how difficult it is to accept, and then act according to her whims and caprices.
Those who want further details can go through this provision. Thus it is mandatory for the EFCC to obey Court orders. This is the only way to enshrine rule of law.
Seventh, was the EFCC unaware of the extent to which a powerful suspect can go to get freedom for himself? I think otherwise. I like to quote again from the speech of Mr. Ribadu at the University of Ibadan.
He stated and I quote: “However, the cost for standing up against the powerful and the all-mighty can be huge and you can ask us for testimonies. When we moved our searchlights from the 419ners and the thieving bank barons to the corridors of the political elites, hell was suddenly let loose”. “There are cries and screams of ‘selective justice’, of ‘Gestapo tactics’, and of all sorts of diversionary propaganda”, unquote.
Was the EFCC prepared to jettison rule of law and resort to arbitrariness in order to win the war against the powerful political class and the rich in view of the cries and screams of “selective justice”, etc? I think otherwise.
In his closing remark at the University of Ibadan, Mr. Ribadu stated and I quote: “In conclusion, I wish to announce that the EFCC has concluded plans to give a N5million ANNUAL GOVERNANCE AWARD in support of the effort of a Nigerian citizen who has made the greatest contribution in support of democracy through a COURAGEOUS PROMOTION OF RULE OF LAW and a HUMAN RIGHTS–BASED APPROACH TO GOVERNANCE (capitals mine)”, unquote.
If rule of law and human rights–based approach to governance are inimical to the activities and operations of the EFFC, why should this type of award be proposed by the same Commission? Obviously, it is in the prevalence of rule of law that the activities and operations of the EFCC becomes further facilitated, enhanced and appreciated.
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