Fighting Criminality With Illegality Equals Injustice

By Owei Lakemfa

I have a soft spot for the Economic and Financial Crimes Commission, EFCC, mainly because I was present at its birth. Nigeria had transited from  long years of unaccountable military regimes that made little distinction between the national purse and private pockets. So corruption was rampant when the civilian administration of President Olusegun Obasanjo  came into office in 1999. EFCC Following  local and international pressures, the administration sought to fight corruption with specialised agencies. To set these up, stakeholders were invited to  meetings which I attended as the representative of the  Nigeria Labour Congress, NLC.

However, the EFCC was a rascal  using uncomely methods like breaking down doors, finding suspects guilty by  media trials, disregarding court orders and making outlandish claims like stating before the Senate that 31 of the serving 36  governors were corrupt, but having little to show after the men left  office and no longer had immunity. Worse still, the body swarm comfortably in political waters; engineering the removal of political office holders including elected governors. The worst case, was using six Plateau State legislators it had captured, to impeach Governor Joshua Dariye  when the constitutional number required was a minimum sixteen. The EFCC began operating  like  a weather forecast  station issuing  intermittent statements about people arrested,  stages of investigation or even its intentions. It chairmen who ordinarily were public servants; in fact, serving police officers – except Mrs. Farida  Mzamber Waziri, a retired police officer – became Czars.

The agency has been severally accused of doing the bidding of whoever is in power and restricting its investigative prowess to those in opposition. While there is a lot of truth in this, personally, I think it is good for the country; if even a few looters are brought to book, that will send a strong message  that people will be held to account even after leaving public office. I must also admit that the EFCC has brought some bite into the anti-corruption war; we have witnessed governors, bank chief executives and even an Inspector General of Police prosecuted and convicted. But this is no excuse to fight criminality with illegality. I believe public agencies like the EFCC and Directorate of State Security,DSS, can be effective even if they employ  legal and civilised procedures.

This will be in line with the EFCC’s vision of being “An agency operating to best international standards…” Unfortunately, at 13, the EFCC has not shed its toga of rascality and know-it-all attitude. Nothing typifies this better  than its uncultured response to the inaugural speech by the President of the Nigeria Bar Association, NBA, Abubakar Balarabe Mahmoud. I had known Mahmoud in the early ‘80s as a quiet, soft-spoken  gentleman who tries to convince on the basis of logic rather than  be pedantic and flamboyant like some of his colleagues. He and  many  of us in our generation had admiration  for the late Alao Aka-Bashorun the principled NBA President who brought activism to the Bar. Aka-Bashorun believed that law must serve the people and that service to the citizenry is the basis of legitimacy  for any government.

I was not surprised that Mahmoud in his inaugural speech emphasised some of these themes such as  “A clean  judiciary that will deliver consistent and predictable outcomes” and “No to corruption, whether in the Executive, Legislative or Judicial branch of government”  He warned that  “for the legal profession in Nigerian, it can no longer be business as usual” and that “there cannot be rich lawyers in a poor country.”

His message that “the fight against corruption can only be achieved if we do so within the frame work of the rule of law and by strong institutions” did  not seem appealing to the EFCC, a body which he commended for its modest achievements. His suggestion that the EFCC be reformed by limiting it to an  investigative agency while  “the conduct of the prosecution must be by an independent highly resourced prosecution agency” infuriated the EFCC.   Rather than respond to Mahmoud’s arguments, the Agency resorted to insults.

 The en-fant terrible retorted that: “A Bar populated or directed by people perceived to be rogues and vultures cannot play the role of priests in the temple of justice.” It accused the NBA President of being part of “ a cleverly disguised campaign by powerful forces that are uncomfortable with the reinvigorated anti-graft campaign of the EFCC and are hell-bent on emasculating the agency by stripping it of powers to prosecute with the  lame excuse that an agency that investigates cannot also prosecute.” In a little veiled indictment of Mahmoud for alleged corruption, the EFCC accused him of being the “Federation’s counsel in the trial of former Delta State governor, James Ibori at the Federal High Court, Asaba, a case which EFCC lost in questionable circumstances.” Mahmoud denied he was counsel.

 In its usual style of making outlandish and unsubstantiated claims, the Commission claimed to have “recorded more convictions in the last one year than all the states and federal ministries of justices combined.” The EFCC concluded that the NBA’s  “ current campaign  appears to be self-serving (and) intended to create a cabal of untouchables who can be investigated but may never be prosecuted.” The arrogance of the EFCC knows no bounds; it sees itself as a religion; if you disagree with it, you must be a sinner deserving to be publicly chastised with scorpions. For it, suggestions that it be reformed can only be made by ‘rogues’ and “vultures”. Yet, it is a public institution funded by the people; so how can it seek to outlaw debates?

The EFCC might have thought that it will get away with its usual rascality; it might not have bargained for the reaction of Mahmoud, the NBA and the general public who see nothing wrong in a debate on the status of a public institution. And the EFCC is not faring well in the ensuing debate. Mahmoud’s suggestion reminds me of the 1975 case of then Head of State, General Murtala Mohammed who was accused of corruption by University of Lagos Law lecturer, Dr. Obarogie Ohonbamu. Understandably, Mohammed, his  government and security agencies were livid and thought Ohonbamu must be jailed. But the then  Director of Public Prosecution in Lagos State, Akintola Olufemi Ejiwunmi, later of the Supreme Court, thought there should be no prosecution.

A shocked Murtala sent for Ejiwunmi, who explained that in case of prosecution, Ohonbamu’s lawyer will ask him to a come to court where he will have no immunity against a potentially unfriendly cross-examination. As a journalist, I believe that even the best writers need an editor; a brilliant EFCC needs an independent agency to decide whether based on the facts before it, prosecution is necessary. I rest my case.  

 *Owei Lakemfa is a commentator on public issues