YAR'ADUA AND THE FAILED PRESIDENCY, BY AUSTIN MAMEDU

My Law Society of England & Wales fortnightly gazette for 20 September featured an advertisement by the Financial Services Regulatory Authority of England (FSA) at page 65. It reads; “The FSA is a world-class regulator. Our mission is to ensure that UK financial markets operate fairly, consistently and transparently. The FSA’s Enforcement Division investigates and prosecutes breaches of the law, so protecting consumers and maintaining market confidence. We have extensive powers which include imposing unlimited fines, banning firms and individuals from the industry, obtaining injunctions and prosecuting criminal offences. Our lawyers are recognised as a centre of excellence, highly respected for the way in which they exercise their powers in the field of financial services and regulation – and you can make a huge contribution…..”

My mind did a comparison of the FSA with our EFCC with whom the Attorney General presently does battle.

The past regime of Olusegun Obasanjo has been taken down for many things; the ill-advised third term project, the ill-timed VAT increase and fuel price increase, etc. Two things stand out of that regime positively; EFCC and the likes of Nuhu Ribadu could operate and survive under Obasanjo. (Do you remember the travails of Tam David-West and his wrist watch?) A debt profile hung on the country for over twenty years was wiped clean. I always knew that the test for a new regime will be on those two matters; what happens to EFCC and Nuhu Ribadu after Obasanjo? Will the debt profile grow up again? We clap in a new government and boo out that same government after a couple of years to clap in a new one again and in a few years starts to adore the one we booed out. My prediction? In four years we will think of Obasanjo like we thought of Idiagbon only after he was removed and we will wish we had allowed him a third term.

At a campaign meeting held in London, I pointedly asked one of the contestants for the office of president, Jerry Gana the question; what will your Regime do with Nuhu Ribadu? He as Umaru Yar’Adua now does stated his anti corruption objective and promised to strengthen the war on corruption. It is written; “By their deeds you shall know them” Gana did not get there; Yar’Adua did. Yar’Adua’s regime has unleashed on EFCC the Attorney General whose actions has unruffled the entire international community who has held so much hopes for Nigeria on the basis of the actions of one man, Nuhu Ribadu. President Yar’Adua has a record of prudent management of resources in Katsina State it is said. Nigerians must remember Shehu Shagari. He apparently lived clean. We do not hear of a 50 bedroom house built as a step-aside gift by a construction giant for him but he had the types of Umaru Dikko, Alhaji Abubakar Alhaji, and Adisa Akinloye who had choice champagnes branded in his name for an ‘owambe’.

As did Shagari, so it now seems Yar’Adua proceeds. The guy does not seem to have a program. The party PDP never had a program; at least not one that is as well known as UPN’s frees and NPN’s food, shelter, and housing which I still remember after several years. Want of a party program is the only reason a PDP president will hand over government to another PDP government and all the new government has done in over 100 days is reversals of the previous administration’s projects besides receiving delegation after delegation of “stakeholders” and well wishers. I was especially worried about the cement policy reversal. A policy is put in place banning importation of cement so as to develop local capacity and grow employment and exploitation of local resources in that sector. The World Bank supports it and grants million dollar loans. Other investors as the Chinese take advantage of it and factories are springing up every where. Some Uche Ibeto whose re bagging warehouse was closed as a result of the policy writes a petition to the new government; straight to the president! As is usual in Nigeria, a favourable Ministerial memorandum is prearranged (and paid for?). Suddenly the non importation policy of the previous regime is seen as a policy to support a friend, Aliko Dangote and is thrown out the window. Mr Uche now says he will flood the market with cheap cement. I read in the online edition of Nigeria’s papers that his “factory” has re-opened. The re bagging warehouse has now become a factory under President Yar’Adua! And the resulting flood will knock us all out.

Across England, Scotland, Wales and Ireland, closest to the source of cement floods than Nigeria, houses are almost all finished in burnt bricks. Through planning policies, use of local material is enforced. The Local Authorities specify type of materials for construction of homes. Nigerian leaders and other visitors to London sure notice that practically all homes here have brick faces. No Uche will be permitted to flood the market with cheap cement so as to knock off the employment of thousands in the local bricks factories and no Uche can write to Gordon Brown to reverse that law and policy. A Local Authority Councillor will stop Brown on his tracks! I pitifully remember the poor cottage bricks producers along the Airport Road in Abuja whom no one patronises because Government abandons them to flood producers like Uche Ibeto. A Government that has no clue how to provide jobs for its youths.

To return to the powers of prosecution as fought between EFCC and the Federal Attorney General. The international perception of the Yar’Adua government will to a large measure depend on how the scale is weighed in this matter. What does the AG seek to achieve in gathering these powers to enter into and discontinue any prosecution? He says he is Mr Anti corruption himself but he has already demonstrated his intent; to protect fellow politicians such as Mr Kalu. Can the AG’s action in seeking discontinuance of the Kalu trial be in furtherance of the anti-corruption war? Any one can hide under the guise of rule of law which meaning is bastardised for the protection of common thieves in Nigeria. What does Nuhu Ribadu and his EFCC seek to achieve? To continue to hunt anti third term politicians? Not likely. To rid Nigeria of corruption? More likely. This is my perception and my view. Yar’Adua and the Legislature must support which ever of these perceptions seem correct in their conscience but judgment awaits everyone as they decide.

I hope in a subsequent article to address the subject of the rule of law. We must carefully consider it so we do not apply the rule of man in the guise of the rule of law. Locton (formerly Alexander Forbes) is a provider of professional indemnity insurance. Their currently running print advertisement is titled “Insurance Curiosities #01 Cigar Scam and reads;

“A debonair City gent, having purchased 24 very rare, very expensive hand-rolled Havana cigars from his suppliers in Belgravia, decided to insure them.

Within a month, he had smoked the entire contents of his humidor, despite the fact that the bill for his extravagance has had yet to arrive. Our gent then proceeded to file a claim against the insurance company, stating the cigars were lost “in a series of small” fires.

Naturally enough, the insurance company refused to pay, citing that the cigars had been consumed in the normal way. However, our gent sued his insurance company and, incredibly, won.

In delivering the ruling, the judge, while agreeing that the claim was completely frivolous, nevertheless stated that the man held a policy from the company in which it declared the cigars were insurable and also guaranteed that it would insure them against fire, without defining what it considered to be “unacceptable fire”, and was therefore obligated to pay the claim. Rather than endure a lengthy and costly appeal process, the insurance company duly accepted the ruling and paid the man £8,000 for the cigars he lost in “the fires” in an out of court settlement.

However, shortly after our gent cashed his settlement cheque, the insurance company had him arrested on 24 separate arson charges. With his own insurance claim and using his testimony against him, the man was convicted of intentionally burning his own insured property and sentenced to two years in prison and a £12,000 fine!

A lot of archaic legal principles are retained in Nigeria. Such principles as hearsay evidence, the rule against double jeopardy, presumption of innocence, and the power of the Attorney General to withdraw a suit from court (better known to lawyers who do not prefer to adopt simple English as “nolle prosequi”) have either been dumped or drastically whittled down in effect. Proceedings practically fly through the courts because 60% of the matters which Nigerian judges dwell on are determined by Registrars without a formal hearing. A matter will not go before a judge until all the technical details we like to tackle for ages such as jurisdiction, disclosure of a cause of action, etc have been sorted by trained and experienced Registrars or Masters without the need to even bring the matter to the attention of the other party at that stage. In Nigeria, if you want to change “is” to “was” in your statement of claim, you have to bring a written application to the court to be heard by the Judge. The AG will do well to focus on a necessary review of Nigeria’s stone-age laws or he may choose to be remembered as the AG who was a shield for common high place thieves.

It appears that the AG has adopted a literal interpretation of his own powers in the Nigerian Constitution. He claims the power as the chief law officer of the country to simply go into any court and discontinue any criminal proceedings. This may well be the plain and basic meaning of the provision. But is that the purpose the law maker sought to achieve? For example, could the AG have gone into the recent prosecution of traffic law offenders before a Lagos Magistrate Court to discontinue the proceedings? In my opinion; no. The wide latitude and likelihood of abuse of such power points to an interpretation that the purpose of the makers of the constitution could not have been to allow the AG such unbridled powers. Modern Legislatures worldwide provide a framework for prosecution of a wide range of offences through Acts of the Legislature. I have recited the advert placement of the UK’s FSA above. Criminal prosecutions are instituted under the provisions of the law. It stands to reason that a chief law officer must act in accordance with the provisions of the law. If a prosecution is instituted in accordance with the provisions of the law, a chief law officer will be acting outside the law and illegally if he seeks to discontinue the prosecution. And it is not within his powers to seek to act outside the law. The AG’s powers to discontinue must be limited to prosecutions not properly instituted in accordance with the law and the court must be in a position to make a final decision on that issue should the AG make such application.

Article 30 of the Constitution of Ireland provide in part as follows;

1. There shall be an Attorney General who shall be the adviser of the Government in matters of law and legal opinion, and shall exercise and perform all such powers, functions and duties as are conferred or imposed on him by this Constitution or by law.

3. All crimes and offences prosecuted in any court constituted under Article 34 of this Constitution other than a court of summary jurisdiction shall be prosecuted in the name of the People and at the suit of the Attorney General or some other person authorised in accordance with law to act for that purpose.

The Constitution of Ireland therefore limits the powers of the AG to that of legal adviser to the Government and the employment of his name as the prosecutor in criminal actions in certain courts only. Other persons and agencies equally enjoy the power to be named as prosecutor.

An amazing development is the increasing practice of the courts granting orders prohibiting the arrest of persons trailed by the EFCC. This is a “Nigerian wonder” in the exercise of judicial powers internationally. In my view the power of arrest is necessarily an executive function in a federal democracy operating the separation of powers principle. The courts may be guilty of unconstitutional interference with executive functions here. Granting such orders preventing feared arrest can only have the effect of emboldening corrupt officials and turning the law and the judiciary into a shield for thieves. Fighting crime can only be hampered by such court orders. I am searching databases of criminal cases and cannot locate such orders outside of Nigeria. An honourable man who fears an arrest turns himself in to the police not rush to court to stop an arrest. The need to go to court only arises after an arrest in order to secure bail or get the arrest declared unlawful.

To give another view to our judges of how their colleagues overseas view and deal with cases of corruption, I will give a gist of the Irish case of Gilligan v. Criminal Assets Bureau [1998]. The appellant challenged the constitutionality of the Proceeds of Crime Act 1996 (POCA) which provided for the forfeiture of property over a certain value, where the court is satisfied on a civil standard of proof that such property was obtained as a result of criminal activity. (Note that under the UK version of the Proceeds of Crime Act, simply not paying your tax is criminal activity) The Act is enforced by the Criminal Assets Bureau (CAB). A conviction is not required before the confiscation of any property. Upon challenge by Gilligan, the Supreme Court upheld the constitutionality of the POCA. It was argued by Gilligan’s counsel that his right to trial under the rule of law as provided for by the Constitution had been infringed on the basis that the proceedings under POCA were of a criminal nature and that the application of the civil standard of proof was a clear violation of his Constitutional right to a fair trial.

The Supreme Court rejected the argument on the reasoning that the POCA provisions complained of applied to property and not to individuals. Gilligan had also argued that Section 1(1) of the Act was unconstitutional on the basis that it had operated retrospectively, contrary to Article 15 of the Constitution, which prohibits the enactment of such legislation. The section reads; “in this Act, save where the context otherwise requires – ‘proceeds of crime’ means any property obtained or received at any time (whether before or after the passing of this Act) by or as a result of or in connection with the commission of an offence …” The Supreme Court also rejected this argument on the ground that as the possession of unlawfully obtained property had not been lawful before the passing of the Act, it could not be argued that the Act had retrospectively criminalised conduct that had been lawful.

Augustine Mamedu

Partner, GM Solicitors
London, Longford, Dublin and Lagos
austin.mamedu@gmsolicitors.com