As the Bar battles EFCC over prosecutorial power by Jide Oluwajuyitan


Yakubu Maikyau was sworn in as the 31st NBA president last Friday, August 25. Like most of his predecessors, he was conscious of the critical role of the judiciary without which a society descends into a state of anarchy where it ‘is the war of all against all’. Reading the mood of the nation correctly during his inaugural speech, just as he did during his first appearance on national television after his inauguration, he had expressed his concern for “terrorized, traumatized and pauperized Nigeria and Nigerians”. He went on to remind members of his noble profession of the need to protect the ‘voice of the legal profession’, which according to him “must speak against the terror in the land and the hardship that has taken over the lives of our people”.

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Unfortunately, just as his predecessors did, the voice which he claimed “remains what is left of this country which cannot be emasculated” was misdirected into fighting a needless battle to whittle down the power of the Economic and Financial Crimes Commission (EFCC) by restricting it to investigative duties while the prosecutorial function is ceded to the bar or to another new body entirely.

Successive presidents of the Bar as well as past attorneys-general have adopted various strategies to emasculate EFCC despite the fact it can only be as independent as the supervising minister who has the last say on who to be prosecuted, wanted it to be. It was on account of this open hostility of the Bar that EFCC in its statement of August 2016 took us on a journey through memory. Back in 2005, Lanre Odogiyan as NBA president had called for outright scrapping of the EFCC during the Bar’s conference in Port Harcourt. That reactionary proposal was killed by some respected social crusaders including Chief Gani Fawehinmi who was present at the conference. But Attorney General Michael Aondoakaa’s (Justice Minister 2007-2010) waged a silent war against EFCC.

The battle was again brought to the open by Abubakar Mahmoud who during his inauguration in Port Harcourt, Rivers State, on August 26, 2016 as the Bar president called for reforms in the operations of the EFCC. He suggested that the anti-graft commission be made to only investigate while an independent agency carries out prosecution.

His crusade was hailed by another former NBA president, Chief O.C.J. Okocha (SAN). “The principle that the BAR is trying to pursue”, according to him is that “with thousands of lawyers looking for jobs, these legal practitioners should be employed to act as prosecutors at all levels of prosecution instead of police”. In other words for a Bar whose responsibility is first to the Bar according to Chief Idowu Sofola, one time Secretary General of the Bar, and its president (1980-82), it is a matter of jobs for the boys.

Of course other senior members of the Bar seem to share the same mind-set. Only last week, August 24, Olisa Agbakoba, another former NBA president regarded as one of the pillars behind EFCC’s recorded success in its anti-corruption war suddenly remembered that EFCC as a ‘federal establishment by virtue of being a creation of the National Assembly, cannot prosecute state offences and should not interfere in the affairs of state governors’. He has therefore urged the new Attorney General of Federation (AGF) and Minister of Justice, Lateef Fagbemi, to ‘unbundle’ the Economic and Financial Crimes Commission (EFCC) and restrict it to investigations while a new National Prosecution Agency should be established.

But the word ‘unbundle’ has only one familiar ring in the ears of Nigerians – ‘corruption’ They have not forgotten how PHCN was ‘unbundled’ after government’s injection of between $8b-$16b and sold at give-away price of just a little over $2b to clients of senior members of the Bar.
Unfortunately, some of the arguments brought up by the Bar to support their needless war fly in the face of available facts. First, EFCC is convinced that the war against is “a cleverly disguised campaign by powerful forces”, and so called attention to Section 6 (m) of the EFCC Establishment Act, 2004, which clearly spelt out the powers of the commission as including: “taking charge of, supervising, controlling, coordinating all the responsibilities, functions and activities relating to the current investigation and prosecution of all offences connected with or relating to economic and financial crimes.”

The anti-corruption body also wondered whether it was “not a strange coincidence that the suggestion to strip the EFCC of its prosecutorial powers is being floated few months after EFCC arraigned some senior lawyers for corruption?”

Besides accusing many senior members of the Bar of accepting “tainted briefs” to aid looters by providing them with technicalities on how to avoid prosecution and conviction, EFCC also believes government cases given to some senior members of the Bar for prosecution were deliberately bungled. It cited two examples. Abubakar Mahmoud as “the federal government-appointed prosecuting counsel in the trial of ex-Delta State governor, James Ibori, at the Federal High Court, Asaba. EFCC lost the case in questionable circumstances while the same ingredients from that case were used to fetch Ibori a 13-year jail term in London”.

Mahmoud according to the anti-corruption body was also the EFCC’s counsel in the appeal against the infamous ‘perpetual injunction from arrest and prosecution’ by former Rivers State governor, Peter Odili, which was still pending before the Court of Appeal in Port Harcourt’, eight years after it was first filed.

Finally, Mahmoud was also reminded that of the over 200 fraudulent bankers responsible for the collapse of the banking sector, only four were brought to justice in a period spanning eight years when the brief were given to senior members of the Bar.

Besides, the body wondered why the Bar that has not lived up to expectation wanted to change a winning team that has in one year recorded more convictions than all the states and federal ministries of justices combined. And it was for this reason EFCC anti-corruption lawyer Rotimi Jacobs (SAN) believes NBA president’s comment borders on ‘corruption fighting back’ especially after pointing out that of about 20 agencies authorized by the constitution to investigate and prosecute, only the EFCC is more prominent having secured over 1000 convictions since inception in 2004 which involved former governors, public servants and businessmen.

Precisely because EFCC believes there are some rogue elements in the Nigerian Bar Association giving the Bar bad name” which the Bar unfortunately have been unable to tame, it was of the opinion 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 is apparent that even with EFCC holding prosecutorial powers, most of the briefs will still have to go to the senior members of the Bar. The only control it has and which the Bar wants to take away is its power to decide in the interest of Nigeria which of those ‘celebrated’ rogue elements in the Nigerian Bar Association, giving the Bar a bad name and that must be left out because of their notoriety for ‘tainted briefs from well-known fraudsters or for betraying the very essence of law which is the pursuit of justice.

This is why the joke today is on the Bar which must invalidate EFCC’s thesis that “the current self-serving campaign is intended to create a cabal of untouchables who can be investigated but may never be prosecuted.”

Naija247news is an investigative news platform that tracks news on Nigerian Economy, Business, Politics, Financial and Africa and Global Economy.

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