No conflict in powers of Attorney-General and EFCC to prosecute

No conflict in powers of Attorney-General and EFCC to prosecute

Thursday, September 8, 2016 9:22 am



Lawyer and renowned anti-corruption campaigner, Okoi Obono-Obla is the Special Assistant to President Muhammadu Buhari on Prosecution in the office of the Attorney-General of the Federation and member, National Prosecution Coordination Committee. In this interview with NKRUMAH BANKONG-OBI, Obono-Obla weighs-in on the bickering between the President of the Nigerian Bar Association and the Economic and Financial Crimes Commission, and the fight against graft by the present administration.

Mr. A.B Mahmud, the new President of the Nigerian Bar Association in his inaugural address delivered at the Port Harcourt conference of the guild, said he will seek the reform of the Economic and Financial crimes Commission, limiting its powers to investigation. What is your view, given that you are a legal practitioner yourself and a holder of a key office in the present campaign against corruption in the country?

Well, the NBA President has the right to free speech. He has the right to freedom of expression. He has the right to hold an opinion and the NBA is the umbrella body of legal practitioners in Nigeria. One of the objectives of the NBA is to support law reform in the country. So, in that wise, the President of the NBA has the right to express his opinion, to say ‘okay, I support law reform, I support calling for a review of the law or the Act establishing the EFCC to take away the powers of prosecution, that EFCC should restrict itself to investigation’. He has the right to say so on behalf of the association.

Be that as it may, the chief prosecutor of the Federation is the Attorney-General of the Federation. If you look at Section 174(1a) of the constitution that is the supreme law of the country, that section says the A-G can initiate, can undertake criminal proceedings against anybody in Nigeria, in respect of an offence created by Acts of the National Assembly. So, despite the fact that Section 12 of the Economic and Financial Crimes Commission establishment Act 2014 vests power on the EFCC to prosecute, that power is still subject to the powers of the Attorney-General of the Federation. By the doctrine of the supremacy of the constitution, the powers of the EFCC to prosecute are still subject to the powers of the Attorney-General who is the chief law officer. The A-G is empowered by section 3 to withdraw any criminal case filed by anybody, be it the police, EFCC, ICPC or any Federal organisation. So, you can see the powers of the Attorney-General. He is still the overall as far as prosecution is concerned.

The NBA President maybe pushing for some form of autonomy…Who needs the autonomy?

If he wants the EFCC to be weaned from the supervision of the Attorney-General, for example
I think it is wrong to talk of autonomy. Autonomy of whom from who?

There have been complains in the past that the EFCC and other agencies have come under the influence of the executive and sometimes corruption cases are not effectively pursued?

These anti-graft agencies are all part of the executive. The EFCC is a part of the executive branch of government. All other prosecuting agencies are part of the executive branch of government. You know that the executive implements the law as passed the national Assembly while the judiciary interprets the law by virtue of the doctrine of separation of powers. If you talk about autonomy, the EFCC is autonomous. But the A-G exercises supervisory power on the EFCC. If you look at section 43 of the EFCC Act, the A-G has powers to make rules and regulations for EFCC. What I’m saying is that, notwithstanding the powers vested on the EFCC, the overall authority, as far as Federal criminal prosecution is concerned is resides with the Attorney-General of the federation.

What happens then, if you have conflict of interest between the EFCC and the supervisory authority?
I have not seen any conflict in the powers of the Attorney-General and the powers of the EFCC to prosecute. I mentioned that the A-G has the power to withdraw any charge filed by the EFCC and others if it is found that such cases amount to abuse of court or legal process. Also, in the administration of Criminal Justice Act, if you look at section 144, it is states that the A-G can withdraw any charge. It is known as the power of nolleprosecui. The attorney-General in most countries is vested with that power. So, I do not see any conflict. If what the NBA is advocating for is that the EFCC should restrict itself to prosecution, then we have to look into that, to see how that can work. But on the whole, I think there should be no controversy over this issue. The law as it is that the EFCC still has the powers to prosecute.

The law has not been amended. If he is calling for an amendment, that law is not going to be amended without inputs from the NBA, the EFCC, all the stakeholders in the Justice Criminal sector before the National Assembly would pass it into law. So, it is premature for people to overreact to the call by the NBA President that the power of prosecution be taken from the EFCC. If that is to be done, it is the executive branch of government that will initiate that process.

Let’s look at your office and the war against corruption led by President Buhari. How far have you gone?

Well, I can score the government B+ as far as the war against corruption is concerned. The government has done very well. I can see that corruption has reduced very drastically in the country. Before we took over, it was cancerous. So, we are now trying to administer chemotherapy, radiotherapy and other forms of cancer treatment to solve the problem. The impunity we used to see has reduced. But there is no society where you don’t find corruption just that the level of it in Nigeria was pandemic. It is now being reduced. The government has fought very well. A lot of people have been charged to court, a lot of people have been investigated, and some have returned money. You remember that when the President marked his one year anniversary in office, the Minister of Information and Culture gave figures of what has been recovered and the property seized. And it is an ongoing process.

Then, if you look at the loopholes, there were lots of leakages through which money was being siphoned from the country. To that extent, we don’t have the level of corruption we had when we took over in 2015. The loopholes have been blocked through TSA. Previously, the Federal Government didn’t know the number of its accounts. We had accounts in so many banks that the government didn’t know about and so many people were in custody of these accounts. But now, the Federal government has made it possible for its account with the Central Bank of Nigeria to be known. Nobody can go to the CBN to withdraw money without the permission of the federal government or the governor of the CBN. We also had the case of somebody in the Air force who was highly-placed. He was arrested. He now said ‘okay, I can help the federal government block the loopholes through which money is being siphoned.

Our salary is 5billion naira but in actuality, we spend 3billion naira. At the end of every month, we have 2billion naira which we used to share. You know the Air force is a small arm, compared to the Army and the Navy. I can help the Federal government block the loophole through which 80billion is taken out of the government every year through salary of the Armed forces.’ We took the advice. The Minister of Finance was asked to intervene and a committee was set up to audit the salary accounts of the Armed forces. This fight against corruption is not all about sending people to prison. It is also about financial discipline and then having the will to punish to those who cross the line.



What is being done, in terms of building independent institutions so that in the future, it doesn’t have to take a President Buhari to jerk the EFCC which has been around for more than a decade, to wake up to its responsibilities?

How many of our institutions are strong? The Nigerian elite don’t want the institutions to function. That is why they were compromised. That is one of the challenges – to create strong institutions that would stand the test of time. We will get to that level eventually, if we continue to have a government that has the will to fight corruption, have the will to charge people who cross the line, have the will not to interfere in those institutions, I think we can have strong institutions. This can happen if we continue to have government that is transparent, accountable; we are going to have our institutions developed with time. What this government is doing is to ensure that if tomorrow there is no President Buhari, the person who takes over from him would not derail because the institutions should be there. It is because these institutions were weak that we had the problem left by the previous administration. I think it is president Obama who said Africa must build strong institutions not strong men. So, if we can have an EFFC that is institutionalised, that can even resist political interference.

That is why I pointed out the role of the Attorney-General and his influence on bodies like the EFCC?
You know that even in America, the Attorney-General is very important. By common law or tradition, the Attorney-General is always the chief law officer. He is always the chief legal officer. The Attorney-General is not expected to work as a politician when he is doing his job. He is working as a professional law officer. He is expected to function as such, unless he doesn’t have integrity. I can tell you that in this government, the Attorney-General is an embodiment of integrity. He has been very professional. The next A-G will want to follow what the current one is doing. I don’t see any problem in the Attorney-general supervising all these prosecution agencies because he is the chief prosecutor.

The writers of the constitution were not stupid when they vested power on the Attorney-General to withdraw criminal charges, when they made the Attorney the chief law officer, chief legal adviser. He should always show integrity. Even in America, the Attorney-General is appointed from the executive. If we continue have people who believe in doing the right thing, who do things correctly, are seen not to manifest lawlessness or impunity, then we will have an institution that will project the system and maintain integrity.

If we juxtapose the fight against corruption against the economic situation in the country, you find that some Nigerians are even asking for status quo to be maintained. ‘Some say bring back our corruption’. How do you feel when you hear comments like that?

You can see that some people are cynical. Sometimes you begin to wonder, ‘what do we really want in this country?’ people are complaining of hardship. Every country will always pass through hardship in its evolutionary process. Even in America, a civil war fought there. America also went through depression. People were selling their properties, some even committed suicide. Then Roosevelt came in and redeemed the country with the New Deal. So, America has passed through many phases. What of Germany? Germany was levelled to the ground after the Second World War, Japan was levelled to the ground after the Second World War, and Great Britain was affected. It was a painful period. It took some time. But they were able to rebuild their countries. So, this period is nothing unusual.

We shouldn’t complain because it is a passing phase. We didn’t do well in the past 50 years. We didn’t save for the rainy day. So, we just have to swallow some pain and work so that our country will be rebuilt. We must show some maturity of character, be resilient. You see, some Nigerians are too narrow-minded. It is because of corruption that we don’t have institutions. It is because of corruption that we have a huge army of unemployed people. You can imagine the money the PDP-government made. They had over 58trillion naira but roads were not constructed. In Cross River State where I come from, there is no single Federal road there that is passable. And during this period when PDP was in power, they made so much money more than the government made from 1914 when Nigeria was amalgamated to 2007. You cannot bring back corruption because the government has blocked loopholes for slush and illicit funds to go out. That is why people are shouting. We had situations where people used to take their girlfriends to Dubai, they used to take 20, 40, 50 girls to Dubai for birthday and wedding parties. They would pay a girl 1million naira. They will hire an aircraft or charter private jets and go to Dubai to go and waste money, hard currency.

Is that the kind of system we want? How many ordinary Nigerians were benefitting from that system? But now, it is convenient for them to cry, even when they were at the receiving end of that wastefulness. I think it is lack of awareness and lack of education. That is what the government should look at. There should be a programme of mental re-orientation and nation-building. That is what we are doing. Government should tell Nigerians that to think that this government that has come in to reform the country is making you to suffer and then people advocate for a return to a system anything went, is wrongly.

But if you look at cases coming from lower courts like customary and magistrates court, you hear of people stealing food from their neighbours’ kitchens and pots. These are ordinary people who have never been or felt anything from the government. These people are suffering.

Give me indices of the crime rate now

But the newspaper reports are there. I follow the media. Petty crimes are on the increase?

There is no society where there is no petty crime. Even in the United Kingdom, there was a time that a Queen was arrested for stealing. Some people are just given to stealing. It is in their blood, it is in their gene. They will steal no matter how much they have. You cannot tell me that you steal because of hardship. People will always steal. Even if the economy is buoyant, those who want to steal will steal even those who have the means steal. Some of our big men steal and they are very rich. They still steal. So, there is something called kleptomania.



Some people suffer it; they just want to steal not because they are in need but because they just want to steal. So, I do not think that people are stealing now because there is too much hardship. This hardship is a propaganda thing. There is a lot of food. I go to the countryside; there is a lot of food. Nigerians are not starving. The hunger they are talking about is the money to waste because Nigerians believe in conspicuous consumption. This is a period for us to re-orient ourselves from the culture of waste to the culture of frugality, saving, cutting our cloth according to our sizes.

Do you handle only economic cases or other matters as well?

We handle high profile cases. These are cases against politically-exposed people. These are former governors, former presidents, former ministers, high-ranking politicians. We also look at economic crimes like pipeline vandalisation, illegal oil bunkering, human trafficking and so on. So, we handle economic crimes that amounts of money involved counts in hundreds of millions of naira or dollars.

So, you don’t handle cases of assassinations? I remember that only recently President Buhari asked the police to revisit the case of Chief Bola Ige and A.K. Dikibo

No, we don’t handle those. But we handle cases of terrorism which is quite a challenge.

That brings me to the theme of the speech that you gave at the NBA conference in Port Harcourt. Awareness on terrorism and cybercrime legislations is very low in the Nigerian public space. The case of the journalist who was arrested by the EFCC for stalking its chairman is still fresh in memory. I didn’t know that there was a basis for his apprehension until I read your paper? What is the government doing to create this awareness?

You know ignorance of the law is not an excuse. If you are arrested for cyber stalking, spelt out in section 24 of the Cyber Crime Prohibition Prevention of 2015, if you are arrested for that offence, you cannot go to court and raise a defence that you are ignorant of the law. That law has been there. It was passed last year and was signed into law by former President Goodluck Jonathan. I think it became law on the 13th of May, 2015. So, that law is there. I will urge Nigerians to look for it and educate themselves, particularly those who operate on the cyberspace. Bloggers who are not aware of the provisions of the law need to read it. That law does not infringe on the right to freedom o0f speech. There is no absolute freedom, though. Freedom must be exercised with of responsibility. Don’t slander, don’t libel because if you do, you are liable to pay damages or you must be ready to go to prison for criminal libel.

So, that law was made for users of the internet to be responsible, not to infringe on the rights of others. Just as you have the right to freedom of speech, I also have the right to protect my integrity. If you infringe on my right to personal integrity in the cause of exercising your right to freedom of speech, then you must be ready to pay for it. If you go on the internet, you will see that that medium is being used in such an irresponsible manner. There is a lot of falsehood on the internet. There are lots of fabricated stories by people trying to undermine national security, trying to instigate ethnic disharmony, trying to instigate religious crisis in Nigeria. Those people are irresponsible. These are the people this law is targeting. It is not for people who use the internet in a very responsible manner. I have a personal example to share with you. There is a group of politicians in Cross River State who feel threatened by my activism, sponsored people who defame me, to slander me on the internet. Recently, they wrote that i went to Calabar and I was spraying people millions of naira.

This is completely false. What happened was that we had a social gathering in the hotel. As I came out from Transcorp, a group of dancers from Benue who were invited came and were dancing around me. I wasn’t even having money on me, so I asked Paul Ifere who was nearby to give me some money. So, he gave me five thousand naira and i threw the money to them. These bloggers went and wrote that I was spraying money and that before I came into government, I had nothing. That was just about a week after I took this appointment as Special Assistant to the president on Prosecution. Recently, after the President appointed me as Non-Executive member of the NCC, they went and wrote that the President sacked me because I was corrupt. And it was all over the net, people were calling me from across the world.

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