Law News
High profile cases: Lawyers divided over AGF’s letter to EFCC

Senior lawyers in the country have expressed divergent views over a letter from the office of the Attorney General of the Federation AGF and Minister of Justice, Abubakar Malami, SAN, directing the Economic and Financial Crimes Commission (EFCC) to forward 35 case files of ex- governors and other high profile corruption cases the agency is handling or prosecuting to his office for vetting and further directive.

While some senior lawyers agreed that the AGF is the chief law officer of the country and ought to approve cases for prosecution, others see the letter as unnecessarily exerting authority of the office by demanding for case files of matters filed as far back as 2010.

The lawyers spoke in separate interviews with our correspondents in Abuja on Wednesday. A senior lawyer, Chief Mike Ozekhome, SAN, while condemning EFCC’s refusal to comply with the directives of Malami, said it is unfortunate that the anti-graft agency has turned itself into a demi-god. Ozekhome said the Acting Chairman of the EFCC Mr. Ibrahim Magu, should be conscious of the laws of the land to ensure that section 10 of the EFCC Regulations, 2010, is not breached.

According to Ozekhome, to refuse the request of the AGF would mean the EFCC seeking an amendment to the 1999 Constitution (as amended). “To continue to defy the AGF, the EFCC must first amend the 1999 Constitution to enable it usurp and appropriate the powers of the AGF clearly spelt out in in section 174 of the 1999 Constitution. According to Ozekhome, section 174 empowers the AGF to institute, take over or discontinue any criminal proceedings in Nigeria, subject to certain constitutional imperatives which do not however concern the EFCC. “The EFCC which is clearly under the supervisory jurisdiction of the office AGF does not possess such powers,” he added.

Another senior lawyer, Mr Ahmed Raji, SAN, agreed with Ozekhome that the AGF is the chief law officer of the country. He however argued that that the AGF should work in synergy with the EFCC, ICPC and other law enforcement agencies in the country. He said, “I expect the AGF and the law enforcement agencies to have a certain level of understanding and cooperation; that is my view.” But a constitutional lawyer, Mr Jiti Ogunye, has faulted the directive of the AGF that the EFCC should forward case files of high profile cases of 35 ex governors and senators to the office of the AGF for review . According to him, the directive is very worrisome.

He also argued that he is surprised and genuinely wonder whether the AGF is not bothered that many Nigerians are likely to perceive this call for surrender of the files as the executive variant or version of the ongoing legislative traducement of the EFCC and its leadership . Ogunye said, “Here is an EFCC and its leadership on which a war is currently being waged by the Senate. Only recently , the Senate, in its continued bid to emsnsculate the EFCC and liquidate its leadership, hurried a bill through the legislative process to remove the NFIU from under the control of the EFCC . “The Senate pretended that it is poised to grant the NFIU independent existence in order to strengthen it.

The truth however is that the gambit of the Senate is to castrate the EFCC and make financial intelligence a subject of political trafficking that will be available to be shared amongst corrupt politicians under investigations and prosecutions. “So, the timing of the AGF’ s call for files, a call that appears to synchronise with the mischief at the Senate, is ominous . The question is, is the AGF wittingly or unwittingly coordinating and cooperating with the Senate against the EFCC? “Aside the issue of timing , the law does not favour the position of the AGF .

As clearly shared in the case of Osahon. V .FRN , the police and law enforcement agencies in Nigeria have powers of prosecution , independently of the office of the AGF. “While the AGF is granted supervisory powers over the EFCC under section 43 of the EFCC Establishment Act under which power the office of the AGF rolled out its Enforcement Regulations, and the touted Section 10 thereof, it is our humble opinion that the AGF cannot constrain or subvert the independent prosecutorial powers of the EFCC by calling for case files of csses that are undergoing prosecution in the guise of intent to review those case files .

“The EFCC prosecuted cases on the basis of legal advice provided by its legal department, upon conclusion of investigations. The EFCC does not prosecute on the basis of legal advice of the AGF or the Federal Director of Public Prosecutions. Thus, the issue of withdrawing the files of EFCC cases for a so called review by the office of the AGF does not arise .

“Under Section 174 of the 1999 Constitution, the AGF has the power to take over or discontinue all public prosecutions at the Federal level , even when those prosecutions were not initiated by the AGF. If this is what the AGF wants to do, and there is good ground for this step, the AGF can exercise the powers without calling for files of csses his office did not initiate or commence in the first place . “The AGF’ s action is not tenable . We recall that the action of the AGF is reminiscent of the action Chief Michael Andoakaa, erstwhile AGF and ex SAN , who , before the dispersal of the Ribadu headed EFCC, was insisting on the surrender of the case files of ex governors tp him . Andoakaa waged a relentless war on EFCC. That was in 2007 and 2008.

Of course many SANS supported him. Eventually, EFCC was dispersed. “We are in 2017. The big question is , is EFCC facing a coordinated attack again? Another lawyer, Mr. Wahab Shittu, has also aligned himself with the argument of Ogunye, saying that the powers of the AGF to take over is sacrosanct but it is quite worrisome if the AGF will be asking for the case files of matters that are already in court. He said: “If the AGF feels strongly and believes that his action is in line with Section 174(3) of the constitution, then he can enter any matter to either continue or discontinue the case.

There is no point in asking for case files of cases already in court, which are being delayed on technicalities and other sundry issues that are contrary to the Administration of Criminal Justice Act”. It was not certain on Wednesday for which purpose the AGF needs the case files even as Okoi Obono-Obla, special assistant to the president on prosecutions, had last week threatened that Malami would report Magu and former ICPC boss, Mr Ekpo Nta, who was redeployed on Tuesday as chairman of the ICPC to the presidency for breaching the rules.

Obono-Obla had accused the agencies of withholding the case files of more than 35 former governors and senators from the AGF. He also said the failure to forward the files to the AGF since July 2016 when the request was made had caused a setback to the anti-graft war, blaming the strings of losses recorded in high-profile cases on the “breach”. He blamed EFCC and ICPC uncooperative attitude with Malami, as having led to the loss of some high-profile corruption cases. But the EFCC’s head of Legal department, Mr G Latona, has since denied claims of not cooperating with the AGF, arguing that “we are not working at cross purposes with the office of the AGF; we are cooperating with them.

We have a wide range of corruption cases in concert with state agencies.” He also said the AGF’s office has the right to initiate new high-profile corruption cases and investigate them without waiting for cases initiated by the EFCC. But Section 174 of the 1999 constitution is explicit on the powers of the AGF, thus: “(a) The AGF is to institute and undertake Criminal proceedings against any person before any court of law in Nigeria, other than a court- martial, in respect of any offence created by or under any act of the National Assembly.

“(b) To take over or continue any such criminal proceedings that may have been instituted by any other authority or person and; “(c) To discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaking by him or any other authority of person. “(2) the powers conferred upon the AGF under subsection (1) of this section may be exercised by him in person or through officers of his department. “(3) In exercising his powers under this section, the AGF shall have regards to the public interest, interest of justice or the need to prevent abuse of legal processes”. Tony Amokeodo.

 Andrew Orolua and Francesca Iwambe, Abuja
The Newtelegraph News

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