[caption id="attachment_27531" align="aligncenter" width="283"] Femi Falana[/caption] In the following essay, Femi Falana, a Senior Advocate of Nigeria, looks at the cases exhumed by the Economic and Financial Crimes Commission, its plan to concentrate only on the Goodluck Jonathan administration and other related issues: FEMI FALANA The Nigerian Economy and the Nigerian people The right to development is a fundamental right by virtue of which every human person and all peoples are entitled to participate in, contribute to and enjoy economic, social and cultural development. It is a right which includes the exercise of full sovereignty over national resources, self determination, popular participation in development and equality of opportunity. Accordingly, the Nigerian State shall direct its policy towards ensuring the promotion of a planned and balanced economic development and ensure that the economic system is not operated in such a manner as to permit the concentration of wealth or the mean of production and exchange in the hands of a few individuals or of a group. Having ratified the African Charter on Human and Peoples' Rights, Nigeria is under a duty to ensure the exercise of the right to development and respect the economic, social and cultural rights of the people with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind. Apart from ensuring that the nation’s material resources are harnessed and distributed to serve the common good the State shall ensure that suitable and adequate shelter, suitable and adequate food, old age care and pension, sick benefits and welfare of the disabled are provided for all citizens. A key component of the economic objectives of the State is the “control of the national economy in such manner as to secure the maximum welfare, freedom and happiness of every citizen on the basis of social justice and equality of status." Therefore, the State shall prevent the “exploitation of human and natural resources in any form whatsoever for reasons, other than the good of the community”. Hence, the entire property in and control of all natural resources vested in the Government of the Federation shall be managed in such manner as may be prescribed by the National Assembly. In order to establish a welfare system in the country the Constitution has imposed a duty on the State to direct its policy towards ensuring that "the material resources of the nation are harnessed and distributed as best as possible to serve the common good and that the economic system is not operated in such a manner as to permit the concentration of wealth or the means of production and exchange in the hands of few individuals or of a group. But with the hijack and control of the economy by imperialism and its local lackeys the commonwealth has been completely concentrated in the hands of a few people. The demand for the control of the country's natural resources was a component element in the struggle for independence from the British colonial regime. But upon the attainment of self rule the status quo was allowed to remain in the economic front. Realizing that the socio-economic rights of the people could not be meaningfully guaranteed without the control of the natural resources a duty has been imposed on the member states of the African Union to freely dispose of the commonwealth in the exclusive interest of the people. No doubt, the domination of the Nigerian economy by market forces has stultified the development and growth of an efficient, dynamic and self-reliant economy in Nigeria. The adoption of neo-liberal economic policies by the Federal Government has continued to promote poverty among the generality of Nigerians . Despite the abundant resources of the nation, the Vice President, Professor Yemi Osinbajo has disclosed that "over 100 million Nigerians live below the poverty line." I am not unmindful of the commitment of the Buhari Administration to fight corruption. It ought to be pointed out that corruption is not the root cause of our poverty but one of the manifestations of the peripheral capitalist economy which is anchored on ruthless exploitation. Instead of striving by means of appropriate regulations "for the minimization of exploitation and the concentration of wealth in a few hands, the securing of adequate means of livelihood and employment opportunities, suitable and adequate shelter, reasonable minimum living wage, old age care and pensions, unemployment and sick benefits etc” the State begun the systematic promotion of poverty through the implementation of the Structural Adjustment Programme imposed on the country under the Ibrahim Babangida junta. Contrary to the economic objectives of the nation, the State has stopped the planning of the economy, refused to harness the resources of the country and failed to address grand corruption and abuse of office. But in view of the debilitating effects of corruption on the society the State has adopted some measures to promote transparency and accountability in governance. In addition to the penal and criminal codes which have provided for stringent penalties for fraud, embezzlement, stealing, conversion etc other laws which are designed to promote good governance are the Independent Corrupt Practices and Other Related Offences Commission Act, Economic and Financial Crimes Commission Act, Code of Conduct Act, Public Procurement Act, and Fiscal Responsibility Act. In demonstration of its resolve to combat corruption the Government has ratified the United Nations Convention on Corruption and the African Union Convention on Corruption. Aside the collaboration with some countries to tackle corruption through Mutual Legal Assistance the Federal Government has enacted a number of laws for encouraging ethical standards and promoting good governance. Notwithstanding the corpus of anti-graft laws and the establishment of anti corruption agencies, official corruption has stultified growth and development and exposed the country to ridicule before the comity of nations. This is not unexpected given the nature of the country's neo-colonial capitalist economy compounded by impunity on the part of the ruling class. Constitutionality of anti-graft agencies Upon the promulgation of the Independent Corrupt Practices and Other Related Offences Commission Act by the National Assembly, its constitutional validity was taken up in the case of Attorney-General of Ondo State v. Attorney-General of the Federation. In rejecting the request of the Plaintiff to declare the Independent Corrupt Practice and Other Related Offences Commission Act, 2000 illegal and unconstitutional, the Supreme Court said that “The Act is meant to make justiciable by legislation a declared state policy to abolish corrupt practices and abuse of power; it is to hearken to national and international concerns over corruption it is to give a national leadership and impetus to the crusade while not standing in the way of the states; it seeks, among other things, to deal with and punish specific offences on corrupt practices even including those committed outside Nigeria by citizens and persons granted permanent residence in Nigeria; see section 66. It is not in any way an attempt to embark on a general criminal law legislative jurisdiction. The eradication of corrupt practices and abuse of power will enure to the good government of Nigeria.” The constitutional validity of the Economic and Financial Crimes Commission Act, 2004 was equally questioned in Hassan v. Economic and Financial Crimes Commission where the Court of Appeal held that the commission had been duly established by an Act of the National Assembly with the responsibility of investigating and prosecuting economic and financial crimes. In refusing the relief for perpetual injunction to restrain the Commission from further arresting or disturbing the Appellant in any manner whatsoever the Court held that “no court has the power to stop the investigative powers of the Police or EFCC or any agency reasonable suspicion of commission of a crime or ample evidence of commission of an offence by a suspect.” Furthermore, the locus standi of the EFCC to charge the appellants was challenged In Kalu v. Federal Republic of Nigeria by the Appellants challenged the locus standi of the EFCC to prefer against them on the ground that the funds allegedly stolen belonged to the Abia State Government and not the Federal Government. In dismissing the objection the Court of Appeal (per Eko JCA) held that the argument of the Appellants was rooted in the fallacious ground that "the funds allegedly stolen and paid into the account of Slok Nigeria Limited was from the Security Votes of Abia State that were managed by the 2nd Respondent, as the Governor of Abia State, and that the said Security Votes are 'unaccountable and unretireable'. The argument does not say, and it cannot be further stretched to mean, that because the funds from Security Votes are 'unaccountable and unretireable' they are 'stealable' or and can be pilfered with impunity.” Kola Olaniyan has contended that “corruption cannot be effectively combated by reliance only on the criminal and law enforcement approach, and a comprehensive and multi-disciplinary approach which incorporates human rights law will be required to adequately and effectively deal with the problem and effects on human rights”. With respect, corruption cannot be effectively dealt with without challenging the political economy of the postcolonial capitalist states in Africa. In view of Article 21 of the African Charter on Human and Peoples’ Rights which has imposed a duty on all African countries to “undertake to eliminate all forms of foreign economic exploitation particularly that practiced by international monopolies so as to enable their people to fully benefit from the advantages derived from their national resources” the expropriation of the commonwealth by a few persons including foreigners is untenable. Duty of Nigerian citizens to fight corruption The duty conferred on citizens "to render assistance to appropriate and lawful agencies in the maintenance of law and order” has been said to include the duty to expose corruption by reporting allegations of corrupt practices to the anti-graft agencies. In Fawehinmi v. Inspector-General of Police the Supreme Court held that notwithstanding the immunity conferred on heads of government by section 308 of the Constitution, criminal allegations against them may be investigated by the police during their term of office. The view of the apex court was captured by Justice Uwaifo when he said that “The evidence or some aspect of it may be the type which might be lost forever if not preserved while it is available, and in the particular instances given it can be seen that the offences are very serious ones which the society would be unlikely to overlook if it had its way... It may no doubt be used for prosecution of the said incumbent Governor after he has left office. But to do nothing under the pretext that a Governor cannot be investigated is a disservice to the society.” The Court however turned round to hold that the police could not be compelled to investigate or prosecute any criminal complaint on ground of public policy. With respect, the Supreme Court missed the point as it failed to take cognizance of the relevant provisions of the Constitution. In other words, the discretion of the anti graft agencies to decide whether or not to investigate or prosecute allegations of corruption cannot override the fundamental right of citizens to freedom of information coupled with the duty placed on them to render lawful assistance to law enforcement agencies in the discharge of their duties. Convinced that they have discretion to investigate or prosecute allegations of corruption the anti graft agencies have often pick and choose which cases to investigate or prosecute. The latitude given to the police and other agencies clothed with prosecutorial powers was taken up in Alhaji Sani Dododo v. Economic & Financial Crimes Commission and Ors. (supra). Having submitted petitions to the anti graft agencies alleging corruption against a former governor of Sokoto State, Senator Muhammed Adama Aliero which were not investigated by the respondents the Appellant approached the Federal High Court for judicial review by filing a writ of mandamus. In striking out the case for want of locus standi on the part of the Appellant the federal high court held that the Respondents could not be compelled to investigate or prosecute the suspect. The appeal against the verdict was also dismissed by the Court of Appeal. But the locus standi of the Appellant to institute the case was recognized when the Court (per Nwodo JCA) held that "the traditional and narrow view set out in Adesanya’s case will not attain justice in the realm of public right in the light of the Nigerian cases earlier set out on issue of locus... the African Charter provision encompassing public rights should be so construed broadly to vest locus on a tax payer who is interested in good governance and shows such interest by writing a statutory body to complain on misappropriation of public funds. Such act is disclosure of sufficient interest.” In recognising the constitutional duty imposed on citizens to report allegations of corrupt practices by public officers to the anti graft agencies the Court of appeal said that “the Appellant, has some duty under section 24 of the Constitution 1999 to abide by the Constitution and respect its deals. He also has duty, by dint of section 24(e) of the same Constitution ‘to render assistance to appropriate and lawful agencies in the maintenance of law and order’. It is in the spirit of section 24 of the Constitution, read together with section 15(5) of the same Constitution that enjoins the state agencies to ‘abolish all corrupt practices and abuse of power’ that the appellant made his complaint of corrupt practices against the 4th respondent to the 1st and 2nd Respondents, who are no doubt lawful agencies of the Federal Government charged with police powers to investigate allegations of corrupt practices and financial crimes and prosecute the offenders.” In the fight against corruption, the Court rightly held that aggrieved citizens who submit petitions alleging corrupt practices against public officers are entitled to the report of the investigation carried out by the police and anti graft agencies. It was the solid view of the Court that "the appellant is entitled to the investigation report on his right as the complainant. See Article 9 of the African Charter. The generality of the public are not entitled to that information until the person suspected is arraigned before a competent court for trial." In view of the categorical pronouncements of the appellate courts in the cases of Fawehinmi v. The President (supra) and Alhaji Dododo v. Economic and Financial Crimes Commission (supra) it can no longer be said that a tax payer has no locus standi in demanding for the investigation or prosecution of a public officer suspected to have engaged in corrupt practices. To that extent, the Federal High Court (per Kolawole J.) fell into error when it struck the case of Socio-Economic Rights Accountability Project & Ors. v. Attorney-General of the Federation & Anor. on the ground that the Plaintiffs, a group of human rights bodies, lacked the locus standi to demand for an account of the $12.4 billion which was allegedly mismanaged by the Ibrahim Babangida junta. Since the members of the Plaintiffs have a duty to render assistance to law enforcement agencies the doctrine of locus standi was improperly invoked and wrongly applied by the trial court. I Indeed, the trial court ran into contradictions when it turned down the request of the Defendants for the ward of costs. Even though the court had struck out the case for want of locus standi it proceeded to say Plaintiffs could not be said to be "busybodies" when it held that "It will be uncharitable for anybody to describe or christen them as ‘busy-bodies’. They are not, rather, I see them as patriotic ‘corporate citizens’ of Nigeria who in my view, are driven purely by a desire to use the judicial instruments to effectuate in practical terms, the ‘fundamental objectives’ expressed in section 14(1) of the CFRN, 1999 as amended that ‘the Federal Republic of Nigeria shall be based on the principles of democracy and social justice’.... These Applicants are not busy-bodies but patriotic corporate citizens (regardless of the status of the 2nd and 3rd Applicants who did not sue through their registered trustees) whose courage to bring this action against all odds, must be commended." In Bamidele Aturu v. Honourable Minister of Petroleum & Ors. The legal validity of the decision of the Federal Government to deregulate the downstream sector of the petroleum industry by allowing market forces to fix the prices of petroleum products was successfully challenged at the Federal High Court by the plaintiff. In rejecting the contention of the defendant that the action was not justiciable the learned trial judge said that "the decision to deregulate the downstream sector of the petroleum industry by not fixing prices of petroleum products will not only be counter- productive, but will be a negation of that objective and a violation of the provision of the Constitution. I say this, not unmindful of the argument put forward by the 3rd Defendant that the Plaintiff cannot enforce the provision of section 16(1) (b) because it is not justiciable. ...It is my considered view therefore that any decision by the government of Nigeria to deregulate the downstream sector of the petroleum industry in the face of the extant laws copiously referred to, will not only be unlawful, illegal but unconstitutional as well and therefore, null and void.” Campaign against anti graft agencies by the ruling class Based on the avowed commitment of President Mohammadu Buhari to fight the menace of corruption the members of the ruling class have begun to wage a campaign of calumny against the EFCC and other anti graft agencies. An influential newspaper has, without any shred of evidence, accused the EFCC leadership of wallowing in corruption while a rented crowd has "stormed" Abuja to demand for the removal of the EFCC chairman. Even some members of the ruling party have not spared the EFCC. For daring to ask certain people to account for public funds the EFCC has been accused of allowing itself to be used to settle political scores. On its own part, the Peoples Democratic Party has alleged that the anti corruption agenda of the Buhari Administration is deliberately designed to humiliate and party and embarrass the Goodluck Jonathan Administration. The other day, the immediate National Security Adviser, Col Sambo Dasuki (rtd) had his residence searched by officials of the State Security Service based on a search warrant issued by a Magistrate. Without considering the fact that the search was carried out in line with the rule of law the SSS was accused by a section of the media of embarrassing Col. Dasuki for leading the soldiers who arrested General Buhari during the palace coup of 1985! In the same vein, police investigation into the alleged forgery of the Standing Rules of the Senate by a top national assembly staff is being politicised. Even a mere invitation extended to some persons to react to allegations linking them with multi billion naira fraud is now said to be a political vendetta. Since the allegations of bias or persecution being leveled against the EFCC are deliberately designed to discredit the renewed fight against corruption and shield looters from prosecution it is high time that the attention of Nigerians was drawn to the fact that corruption is fighting back. It is indeed embarrassing that some members of a regime that promised to fight corruption are involved in the dubious campaign to sustain impunity in the country. Having closely monitored the recent activities of the EFCC since it was established over 10 years ago, I can say, without any fear of contradiction, that the Buhari Administration has not gone beyond granting autonomy to the commission to discharge its statutory duties. It may interest Nigerians to know that majority of the petitions which formed the basis of the ongoing investigation by the EFCC were submitted before the emergence of the Buhari Administration. I have confirmed that the petition against the cabal of fuel importers was submitted to the EFCC sometime in January 2012 by the immediate past Minister of Petroleum Resources, Mrs. Deziani Alison-Madueke on the directive of President Jonathan. Even the petition against those who duped the nation of hundrerds of millions of dollars through the oil swap scam was also submitted to the EFCC by her after the 2015 presidential election. With respect to the ex-governors of the APC and PDP who are currently standing trial, the petitions which triggered the investigations were written and submitted to the anti graft agency by concerned citizens and anti-corruption bodies. The kwara state chapter of the PDP has owned up that it authored the petition alleging fraud against the spouse of a public figure. It should be pointed out that the EFCC and other anti graft agencies are being inundated with petitions by Nigerians and foreigners alike who believe that the Buhari Administration will not shield corrupt people from investigation and prosecution. To that extent, the decision of the federal government to limit the investigation of corruption cases to the Jonathan Administration cannot be justified in law. As there is no statute of limitation with respect to corruption cases aggrieved Nigerian citizens cannot be restrained from exposing corrupt practices of successive regimes. More so, that President Buhari has requested the Obama Administration to assist in the recovery and repatriation of $150 billion stolen from Nigerian in the past decade. CONCLUSION In the light of the foregoing, the renewed war against corruption should be supported by the Nigerian people. It is indisputable that an enabling environment currently exists to promote public accountability in the country. Apart from respecting the autonomy of the anti graft bodies the government should ensure that they are adequately funded. The anti graft bodies should take advantage of the Administration of Criminal Justice, 2015 to speed up the prosecution of corruption cases. If the prosecution units of the relevant bodies are prepared, the cases which have been in the docket for years may be concluded within the next six months in line with the provisions of the Act. Nigerians who are desirous to expose corruption are advised to invoke the provisions of the Freedom of Information Act and the Fiscal Responsibility Act. It has to be realized by the Government that unless the anti corruption is owned by the Nigerian people it cannot succeed. In fighting official corruption the Fiscal Responsibility Act, 2007 has turned the Nigerian people into whistle blowers. The law has granted unhindered access to concerned citizens to approach the court to enforce compliance with the law. For the avoidance of doubt section 51 of the Act stipulates that "a person shall have the legal capacity to enforce the provisions of this Act by obtaining prerogative orders or other remedies at the Federal High Court without having to show any special and particular interest." With the enactment of the Whistle Blowers Bill and the Witness Protection Bill by the National Assembly the Nigerian people have been further empowered to expose and fight corruption. (Being the keynote address delivered by Femi Falana SAN at the public presentation of Dr Musa Babayo's book on "Economic Diplomacy and Nigeria’s Foreign Policy" at Abuja on Monday 27, 2015)