AG’s Fiat and the Faltering Anti-graft War

Since the return of democracy in 1999 and the establishment of two anti-corruption bodies (the Independent Corrupt Practices and Other Related Offences Commission and the Economic and Financial Crimes Commission) to rid the country of institutionalised corruption, interests of various forms and influences from diverse sources have thwarted the fight against graft in Nigeria.

Recently at a resumed sitting of the Katsina State High Court, where the ICPC is prosecuting three former officials of the last administration in the state, we were once again reminded that the government’s anti-corruption campaign is not insensitive to political and other socio-factorial sentiments.

The state’s Attorney General and Commissioner for Justice, Mr. Ahmed El-Marzuk, is seeking the permission of the court to take over the prosecution of indicted officials brought to the court by the ICPC. At a glance, it is curious that by the Attorney General of the Federation and Minister of Justice, Abubakar Malami, is using Katsina to vacillate the prosecution of the anti-graft war. While on the one hand he accepted fiat from the State Attorney general on the matter concerning the former governor, Ibrahim Shema, he is ceding power to the state AG on the KTHC/8c/2017 matters: FRN vs Nasir Salisu Ingawa on one hand and FRN vs the duo of AbdulAmin A. Shinkafi and Bello Bindawa, on the cases under the ICPC federal laws, to grant a purported fiat over which the presiding judge is yet to accept.

More curious is the matter because the ICPC prosecuting counsel, Mr. Nosa Omohigbo,said investigation had been concluded and the commission had established prima facie cases and had enough evidence from investigations to determine culpability on the matter and a takeover could jeopardise the chances of prosecution. Does it then not vitiate common-sense that the state as a vested party in the matter is seeking the leave of court to take a fiat to try the accused persons who are politically exposed persons and had decamped from their previous political party?

We know for a fact that the accused persons have recently switched allegiance to the Governor Bello Masari-led government, thereby validating ICPC’s claim that the prosecution could be compromised.  Indeed, a nolli prosequi could be engineered as most former branded felons have become saints after switching allegiance!

Judging by what is playing out in Katsina State, the purported fiat granted state attorneys-general to prosecute cases under federal laws, although within the prosecutorial powers of the Attorney General of the Federation, needs to be reviewed. In the words of the late Justice Kayode Eso, in defining the role of the AG when delivering a leading judgment in 1988, “This is a power vested in the Attorney-General by the common law and it is not subject to review by any court of law. It is, no doubt, a great ministerial prerogative coupled with grave responsibilities.” The “grave responsibility” the late legal luminary was referring to has to do with discretion. It is indiscretion to set up anti-corruption bodies only to strip them of their prosecutorial powers and handing same to some state prosecutors with vested interests at the risk of jeopardising the fight against corruption.

But then, the Katsina scenario is just one in many cases where personal, political, ethnic and even religious sentiments have frustrated and obstructed the fight against corruption. Former President Olusegun Obasanjo, who established ICPC and EFCC, could make a case for himself that he secured the conviction of high profile members of his government, including the then Interior Minister, Sunday Afolabi and Inspector General of Police, Tafa Balogun. However, there were the untouchables in his administration and he himself hasn’t come clean on the Halliburton bribery scandal as well as on who funded his botched third term bid.

The immediate past Goodluck Jonathan administration, if anything, was worse. At best, his was the administration which turned a blind eye to corrupt politicians more than any other based on sentiment since 1999. Many scandals involving his appointees, family members, close associate and party members were overlooked and he tried to convince Nigerians that stealing public funds wasn’t corruption.

President Muhammadu Buhari rode to power mainly on the promise to wipe out systemic corruption. True to his word, he swung into action and his anti-corruption agencies made many high-profile arrests, including beneficiaries of the Dasukigate largesse. However, the Economic and Financial Crimes Commission and the Office of the Attorney General of the Federation are yet to secure a single conviction.

Rather, courts keep discharging cases of corruption brought to them. When Senate President Bukola Saraki’s case at the Code of Conduct Tribunal (CCT) was literally trashed, one wondered why the CCT instituted the case in the first place when it knew it would discharge Saraki of all the 18-count charges of false asset declaration proffered against him by the Federal Government.

Another case in hand is the “grass cutter” corruption case against the suspended Secretary to the Government of the Federation, Babachir Lawal. President Buhari reluctantly ordered an investigation into the allegations of violations of law and due process made against Lawal in the award of contracts under the Presidential Initiative on the North East (PINE), along with the case involving the Director General of the National Intelligence Agency (NIA), Ambassador Ayo Oke.  The president directed the suspension of the SGF and DG NIA from office pending the outcome of the investigations. The investigation was led by the Vice President, Yemi Osinbajo, and had the AGF and National Security Adviser as members. Since April, the committee has practically refused to release its report.

There are the cases of mismanagement of the Paris Club loan refund levelled against Governor Addulaziz Yari of Zamfara State and the strong-worded memo from the Minister of State for Petroleum Resources, Dr. Ibe Kachikwu, to President Muhammadu Buhari on the actions of the Group Managing Director of the Nigerian National Petroleum Corporation, Dr. Maikanti Baru. Even with Yari’s immunity against prosecution and Baru’s feeble and arrogant counter-claim, shouldn’t investigations be carried out at least? After all, Ekiti State’s commissioner for finance and state accountant general were arrested and questioned by the EFCC. What could make former governor Orji Uzor Kalu be a subject of corruption investigation when he was in the PDP and become a pardoned saint once he decamped to the ruling APC?

If the fight against corruption is perceived as a witch-hunt by the majority, it would not be won. What is sauce for the goose should be sauce for the gander. And the Katsina scenario should interest us being the President’s home state.

Faskari is an Abuja-based lawyer