Utum Eteng
Utum Eteng|28 August 2016
Yomi Odunuga, a columnist (Knucklehead) writing with the above caption in THE NATION/SATURDAY/AUGUST 20, 2016 page 11 made caustic remarks about the person of Abubakar Malami SAN as Attorney General and Minister of Justice vis-a-vis his prosecutorial powers in corruption cases.
He commenced his attack with a snappy and unrealistic assessment of the performance of some Ministers in the Buhari administration but dwelt extensively on Malami (SAN) of the Justice Ministry. He rationalized thus “I admit that a few (Ministers) are making some noises here and there” whilst positing that some of them are still grabbing the headlines for their actions and inaction. That “they pop up occasionally to remind us that they superintend over their ministries…”
The cat was let out of the bag when he named Malami and said “one such person is the Minister of Justice and Attorney General of the Federation, Abubakar Malami (SAN) who huffs and puffs occasionally.” It is sad that a columnist of Odunuga’s repute could degenerate to the sad level of employing vulgar adjectives to describe Abubakar Malami (SAN), the AGF.
As a demonstration of ignorance of the powers of the AGF in Section 174 of the 1999 Constitution as amended, he posited that “fresh from his altercation with the Senate… Malami must have thought he would be doing Buhari a world of good by directing officials in his Ministry to take over decades of long high profile cases from the relevant anti-graft agencies.” That he specifically, “named the National Prosecution Coordination Committee thinking that they could be the answer to the epileptic pace at which high profile criminal cases drag on at the various courts.”
Ordinarily, one would not have bothered to join issues with his assessment of the AGF but not for the sensitive matters raised which must be put in the right public perspective. Certainly, Odunuga cannot claim ignorance that before Malami was appointed, the office of the Vice President held sway important legal matters like the NPCC. Odunuga can also not claim ignorance that before Malami, President Buhari appointed one of the best legal brains in Nigeria, Prof. Itsey Sagay to work with the Presidency to pungently come forth with a blue print on how to synergize the handling of corruption related cases in Nigeria. Why Malami should be picked on to be so directly condemned is yet to be understood by any objective person. The NPCC is indeed not a bad policy of the Federal Government.
Odunuga failed to properly inform the public that the Malami SAN as the AGF and Minister of Justice inherited the NPCC package knowing that the Buhari administration attaches seriousness in the pursuit of corruption related cases in the system.
Though, the President appointed Malami AGF, Odunuga knows as a fact that the President has no power to direct the AGF in matters of his prosecutorial powers. The office of the AGF is specially created by Section 150(1) of the Constitution and Malami as it occupant has unlimited discretions on who and who not to prosecute in the interest of the public. He alone decides the cases he takes over from the anti-graft body or discontinues. He has the power to categorize corruption cases into high profile without breaching the law. It is common knowledge that most of the corruption suspects are those in high places who corruptly stole public funds entrusted in their hands. The AGF may describe their stealing habits as high profile thieves for ease of reference and should not warrants condemnation. Apart from the use of the phrase profile crimes by the AGF, it is known that the debt management department describe some of the huge debts as high profile debts depending on the amount owed because it is not Malami, there is nothing wrong about that.
Odunuga is in no doubt aware that before Malami was appointed AGF, the Ibrahim Larmorde, led EFCC was thought to be an extension of the PDP Federal Government. Many of the high profile cases Odunuga is now referring to were reluctantly filed only to justify righteousness. The governors and others in high places involved frustrated every attempt vide vexatious and scandalous applications in court to stud progress. Can Odunuga claim ignorance of the fact that a Federal High Court in Port Harcourt then made an order restraining an ex-governor Peter Odili of Rivers State from being prosecuted? If the AGF in his wisdom and constitutionally given powers decides to exhume these manner of cases with a view to ascertain the actual position in law, should he be damned? In our criminal justice system except otherwise stated, there is no time limit for a criminal case to be prosecuted and concluded. Appointing additional hands to assist the Federal Government prosecute the present overwhelming backlog of graft cases could not by any stretch of imagination be described as a “crafty way of legalizing the job-for-the-boys”. After all, the powers of EFCC to prosecute are only exercised without “prejudice to Section 174 of the 1999 Constitution” as admonished in Section 13(2) of the EFCC Act, 2004. By that Section, it is only the AGF who has the constitutional powers to “continue or discontinue or take over criminal proceedings against any person charged by the EFCC in any court of law.” The same goes for the ICPC Act, Police Act Section 23, FIRS Act, Custom Act and others. The Federal Ministry of Justice could prosecute graft cases using private lawyers as prosecutors with fiat.
Whilst Odunuga in one breath condemns Malami for setting up the NPCC, in another he prays that “it should at best be set up as an advisory body with the responsibility of fast-trading the current graft cases handled by the Nigerian Police Force, (DSS, EFCC, ICPC and FIRS).” Though Odunuga may not be easily suspected of having a special purpose to serve in this matter, but his anxiety for the old unproductive status quo to be maintained leaves one in great doubt. It is not a virtue for one to blow hot and cold or approbate and reprobate. It smacks of consistency.
It is important to pungently point it out to Odunuga that, Malami by his zeal is not in any “way playing to the gallery to impress anybody” as alleged. He has a mission, a clear vision and a realistic destination. The powers to prosecute by the anti-grafts bodies are expressly limited as admitted when he opine thus “why is Malami keen on taking that privilege from these bodies in his new quest?” As one calls his attention to Section 174(b)(c) of the 1999 Constitution, it is also important to inform him that a right created by the Constitution is superior to the privilege he talked about even if such is created by a statute. A statute cannot be superior to the Constitution. The Constitution is supreme.
The language in Section 174 of the 1999 Constitution is clear, simple to understand, all embracing, unambiguous and not subject to extraneous interpretations.
The legitimate actions of Malami cannot therefore in any way be seen “as ominous signs of arbitrary interference” Malami’s mission in creating a common pool for the proper coordination of corruptions cases earlier filed by anti-graft agencies, with privileged prosecutorial powers to arraign suspects is in good faith.
Odunuga is hereby challenged to explain to the Nigeria public whether he knows of any suit where the EFCC, ICPC, DSS, the police or FIRS is sued for wrongful prosecution without the office of the AGF on behalf of the FGN not made a party? One still questions whether Odunuga’s piece is not meant to serve particular interest in so far as he knows that the privileged prosecutorial powers of the anti-graft agencies is subject to the overriding public right of the AGF to prosecute as guaranteed by the Constitution.
If corruption must be tackled effectively, all hands must be on deck and the AGF must be encouraged to do his legitimate work without distractions or hiccups.
The gimmicks by some of these big time corruption infested leaders who have perfected the art of using the courts to slow their prosecution to recover the huge stolen funds in their hands must be condemned.
The Nigerian Judiciary must as well rise up to the challenge and show concern on the sorry state corruption has eaten into the fabric of our system by boldly removing every liberate obstacle inhibiting the successful prosecution of high profile cases involving billions allegedly stolen. No blame game would save us as a nation at the brink of being suffocated by corruption.
Chief (Barr) Utum Eteng & Utum Eteng
Private Legal Practitioner, Calabar
08034008723, 09050032600
