By Bolaji O. Akinyemi
The beauty of law is in its practice, the strength of law is it learning. Little wonder lawyers refer to each other as learned colleague.
Professor Yemi Osibajo stands not just out, but shoulder high among many both in the teaching of, and practice of law. Personal interests however, is a factor when opinions are sought on legal matters. The RCCG factor will not allow me to lean on the erudite law teacher and immediate past Vice President of the federal Republic of Nigeria on this.
I had promised my readers a peep into the EFCC files to see how Olukoyede will fair having been both staff and accused of the Commission. His appointment to Chair the Commission on behalf of Bola Ahmed Tinubu led Administration for our inevitable fight against corruption must start with the EFCC and him without compromise, if this country must survive.
The opinion of two lawyers will guide us at making ours in this piece, one is a respected man of legal practice, a Senior Advocate of Nigeria, leading voice on constitutional law. To my Egbon, in Yoruba nativity, but astute portrait of federal character, Chief Femi Falana, I refer. The second is a teacher of law, a public educator on law and human rights activist, Mr Chidi Odinkalu.
Before we ascend to the height of reasoning from the abyss of primordial tribal and religious hamlets of our dwellings where Tinubu met us and will want us to remain, let us establish our knowledge of democracy and what the leadership of a democrat in power should represent, from which the President is failing, if he is indeed a democrat.
We have records of impunity in appointments in the past due to leadership of a “converted” or “repented” Democratic. One would have thought that, now, that a democrat is in the saddle, it will be time to build this country on the rule of law and absolute respect for our constitution.
We can’t in view of this allow rampaging recklessness of anyone in power. The Executive should be compelled to show respect to the laws and its custodian (NASS) by keeping them on their toes to the detailed demand of our constitution. This synergy must be formed by the people, their Senators and Representatives at the National Assembly. This is what informed our project; Legislative Revolution Network of the Project Victory Call Initiative AKA PVC Naija. The aim of which is to be the constitutional conscience of our nation for healthy democratic development.
Under a converted Democrat; The Investment and Securities Act (ISA) that stipulates that for anyone to be appointed to be DG of Securities and Exchange Commission, the person must have worked in the capital market for 15 years, GoodLuck Jonathan contravened by his appointment of Arunma Oteh from the African Development Bank where she worked for 17 years. She read Computer Science and didn’t have direct capital market experience, that Oteh gave a good account of herself which no reasonable person will deny doesn’t make that appointment right.
The current DG of SEC was appointed by our “repented Democrat”, apologies to Bola Ahmed Tinubu who in defence of Muhammadu Buhari before 2015 election ascribed this to our alleged tyrant famous for his high-handedness in the country during his military days. A man who fell short of democratic values, true to his type pushed for the appointment of a Director in Central Bank who has no direct capital market knowledge.
Same man contested with Godwin Emefiele for CBN Governorship and lost. He had to retire. Buhari pulled him out of retirement and appointed him SEC DG, this, as inconsequential as it may look to sentiments of tribe and religion. It is a serious abuse of the constitution. We can’t build a country on habitual attitude of contravention of the constitution at will.
Relevant in intent or not, the law, once stated must guide everything we do.
A friend and a brother, Olanrewaju Osho, believes that the new EFCC boss qualifies for the job more than any of the people earlier cited as examples of Executive contravention. For me all democrats must be up on the beat with the National Assembly to ensure our nation is from now built on the constitution. The responsibility to ensure that is done rests on the Nation Assembly in particular and in this case, the Senate of the Federal Republic of Nigeria.
Senators must know that we look to them in this and the world is observing how responsible or not they will be to the core duty of making laws and overseeing that it is adhered by the Executive.
Let’s begin with Chidi Odinkalu’s public law class to take a lesson on a case in point. He writes on the Disappearance of Abdulrasheed Bawa:
“Around 6 February 2005, John Githongo, Permanent Secretary in Kenya’s Presidency responsible for Governance and Ethics, resigned after only two years in the role. As Michaela Wrong narrates in her vicarious memoir of Githongo’s tenure, his resignation letter was transmitted from an anonymous grocer’s shop in London at the beginning of what turned out to be a three-year-long exile. He had fled the job “fearing he could be murdered.”
When he took up the position in 2003, Githongo had arrived with energy and ideas from a senior role in global corruption watch-dog, Transparency International. Corruption, he told Ms. Wrong, “could only be fought from the top.” The main lesson from his two years on the job, instead, appeared to be that fighting corruption was also most usually frustrated from the top.
Ngozi Okonjo-Iweala, who had her own run-ins with trying to keep the country on the tarmac as Finance Minister, titled her memoirs on public finance reforms: Fighting Corruption is Dangerous. The New York Times described Githongo’s experience as “a cautionary tale about the dangers of challenging a thoroughly corrupted system.” Such tales have become the staple of a succession of bedraggled tenures of chief executives of Nigeria’s leading anti-corruption institution, the Economic and Financial Crimes Commission, EFCC.
By some coincidence, the EFCC’s first Chairman, Nuhu Ribadu, took his job in the same year that President Mwai Kibaki appointed John Githongo to his position as the presumptive Czar of anti-corruption in the country. The year after his appointment, Ribadu reached an agreement with the Nigeria Police College, Ikeja, to train cadets for the EFCC. Among the graduates from the Course 1 Cadet cohort in 2004 was one Abdulrasheed Bawa.
The brief of the EFCC, meanwhile, ran up against constitutional design and cynical politics. Although the Commission is empowered primarily to ensure accountability through criminal prosecutions, ultimate control of that function under Nigeria’s constitution lies not with the Chairman of the EFCC but with the Attorney-General of the Federation and Minister of Justice, who sits in Cabinet, where the EFCC Chair does not. What the president gives to the EFCC Chair, he can take away by sleight of hand, a nod, or a wink in the direction of his Attorney-General.
Within two years at the beginning of the Millennium, Nigeria had created two anti-corruption institutions where one would easily have served. In 2000, President Olusegun Obasanjo first established the Independent Corrupt Practices and Other Related Offences Commission, better known as the ICPC, to fight routine bureaucratic malefaction…”
Odinkalu continues thus on the woes of erstwhile EFFC bosses:
“Successive Chairs of the Commission have ended all up tarnished and hounded.
Nuhu Ribadu was a dashing 40-year old police officer and lawyer who came to national prominence at the turn of the millennium representing his employers before the Human Rights Violations Investigation Commission headed by Justice Chukwudifu Oputa. He brought that gusto to his role as the pioneer chair of the EFCC where he seemed to command considerable bandwidth with then president, Olusegun Obasanjo to the point of holding sway in decisions over who was eliminated from the line of succession as Obasanjo’s tenure wound to a close.
A 2006 US Embassy Cable disclosed by Wikileaks feared that the work of fighting corruption under him was “widely perceived to be nothing more than a political witch hunt by President Obasanjo”. Human Rights Watch famously criticized him as preoccupied with the pursuit of “more headlines than convictions.” As Githongo made his way back to Nairobi from three years in exile in 2008, Ribadu was headed out to his own exile of about the same duration after suffering multiple humiliations and exposure to worse at the hands of Obasanjo’s successors.
The tenure of Farida Waziri, the retired Assistant Inspector-General of Police, who succeeded Ribadu at the EFCC, seemed ill-fated from the beginning. According to another cable also disclosed by Wikileaks, Mrs. Waziri was a client of the same politicians whom she was supposed to investigate and her every step seemed to be dogged by suspicion and controversy. A few months into his elected tenure in November 2011, President Goodluck Jonathan mercifully relieved Mrs. Waziri of her position citing “national interest.”
Ibrahim Lamorde, who replaced Mrs. Waziri in 2011, was sacked in November 2015, barraged by allegations by the National Assembly very much redolent of the kind that he should have been investigating against those who were hounding him.
His successor, Ibrahim Magu, had the distinction of serving his tenure without Senate confirmation. On 6 July 2020, operatives of the State Security Service (SSS), arrested Mr. Magu and detained him for interrogation in connection with allegations of corruption.
Abdulrasheed Bawa was the first Chairman of the EFCC who was not a Police Officer. A lifelong staff of the Commission, Bawa was barely 40 when he was appointed to the role in February 2021 in somewhat controversial circumstances. On 14 June, 2023, the presidency announced his suspension from office for opaque reasons given as “weighty allegations of abuse of office”. More than 120 days later, Bawa remains disappeared, reportedly an unacknowledged hostage of the SSS, his location unknown and undisclosed.”
Odinkalu goes on to draw attention to three areas of interest in this case:
“At least three aspects of Bawa’s fate merit attention. First, a government that claims democratic legitimacy should not be in the business of disappearing citizens, irrespective of what they are accused of. Whatever the allegations against Mr. Bawa are, they cannot justify putting him beneath the constitution.
Second, Nigeria’s constitution prohibits administrative detention, which is exactly what has become Mr. Bawa’s fate. Nigerians did not suffer that silently from military dictators. An administration led by those who claim to have resisted the abuses of military rule should not be caught now replaying the playbook that they reviled. If there are serious allegations against Mr. Bawa, he deserves to be brought to account administratively in line with the service regulations of his employers or before a court of law. Neither option warrants his indefinite disappearance.
Third, established under the National Security Agencies Act, the powers of the SSS are limited to investigation and enforcement of crimes “against the internal security of Nigeria.” Allegations of “abuse of power”, which the presidency claims to be the reason for Bawa’s suspension, would appear to be outside the scope of the SSS.
The standard response to this is that Mr. Bawa is receiving a taste of the medicine of institutional caprice that his EFCC meted out to suspects. The shortcomings of the EFCC under successive leaderships since its inception, including its investigation and detainee management protocols, are well documented. However, the habit of terminating successive leaders of the institution into political persecution is independent of that pattern.
Ironically restored under the current regime to public service as National Security Adviser, Nuhu Ribadu, who bears indelible scars from being hounded into exile as pioneer chair of the EFCC, today supervises the disappearance of Abdulrasheed Bawa in complicit silence.
Nigeria’s politicians may be interested only in co-opting the language of fighting corruption but citizens have a duty to care that corruption is not enabled with official impunity. The disappearance of Mohammed Bawa is not merely a violation of the standards of Nigeria’s laws and constitution; it also ensures that the job of fighting impunity for grand corruption in Nigeria does not stand any chance of success”.
Coming out of Odinkalu’s public law class, I chanced on the written report by Sahara Reporters of the recording of Chief Femi Falana, SAN, on Channels Television:
“Olukoyede Is Eminently Qualified To Head Nigerian Anti-Graft Commission, EFCC —Falana”.
That was the headline that screamed at me and got my attention. The news continued;
“A Senior Advocate of Nigeria, Femi Falana, has said that those who are challenging the appointment of Ola Olukoyede, as the Chairman of the Economic and Financial Crimes Commission (EFCC) have not acquainted themselves with the provisions of the law.
Falana, who said this on Monday while featuring on Channels Television’s Sunrise Daily programme said that Olukoyede who has served as the Chief of Staff to the former EFCC Chairman and as Secretary of the commission is eminently qualified to head the anti-graft commission as he has acquired enough cognate experience to head the agency.
When asked if there is an issue with the appointment of Olukoyede as the EFCC chairman, following controversies that have trailed his appointment, Falana said there was no issue, except that the federal government must consider adherence to the provisions of the Federal Character Commission Act.
“I am not comfortable with the fact that as of today, the heads of the EFCC and the ICPC are from the same zone. Apart from that, Mr Olukayode is eminently qualified to head the EFCC.”
He said that when the former EFCC Chairman, Abdulrasheed Bawa, was appointed, people challenged the appointment and said the position was for police officers, “but we said no. If you have served in a law enforcement agency and you have acquired enough experience, you are qualified to head the EFCC.”
According to Falana, Mr. Olukoyede had been the Chief of Staff to the Chairman of the EFCC and had also been a secretary of the commission, and a board member by virtue of his position as a secretary of the commission.
Falana said that while people are saying that Olukoyede has not acquired the necessary cognate experience for the position, “the law does not say the cognate experience must be in that agency”.
He continued, “So if you have a gentleman who is said to be a regulatory compliance consultant who has also worked in the detection of crimes or fraud, an accomplished expert in those areas, you cannot say he hasn’t acquired the cognate experience because cognate experience actually means your acquisition of the skills in the area we are talking about, and it does not mean it must be in EFCC.
“For instance, I know a lawyer, Rotimi Jacobs (SAN), who has been prosecuting for the EFCC since 2004 when the body took off. There is no way you can say that such a lawyer who has prosecuted the majority of the cases investigated by the EFCC has not acquired cognate experience.
“So if you have a lawyer of 22 years who has spent the better part of his practice detection of crimes, detection of fraud-related crimes and who has acquired the knowledge both home and abroad, who has worked with international anti-fraud agencies like FBI, the Fraud office in the UK and more, it is difficult to question his competence.
“The only area the government will have to go back to the drawing table is also to ensure that the anti-graft agencies in the country are not headed by people from one region.”
Falana’s allusion to federal character raised my inquisitiveness, prying into EFCC, I got a voice of the federal character implementation of the commission, though the voice preferred to be anonymous. Responding to me he said; where is the federal character in EFCC?
As at 2017, the North East had over 62 percent of Staff at junior, middle and management cadres and we had to deliberately scale down on their recruitment and appointments between 2017 and 2020 to accommodate geopolitical areas of the Country that had less than 20″.
The contravention of the federal character requirement by the commission I believe was founded at the Commission by Nuhu Ribadu.
In conclusion, if corruption can only be fought from the top and the ‘topest’ of our top is the Presidency, how then does Olukoyede, once a victim of the fight at the top between Malami and Tinubu, shielded and saved for today give hope of transparency of investigation we are waiting for on Malami and several others?
Fighting corruption according to our public law teacher Odinkalu, is usually frustrated from the top, is Olukoyede’s appointment an attempt to frustrate files generated from Tinubu’s activities while Bawa was manning the Lagos office of the commission?
“The New York Times described Githongo’s experience as a cautionary tale about the danger of challenging a thoroughly corrupted System”. This in Odinkalu’s conclusion of such tales are the staple of a succession of bedraggled tenures of Chief Executives of Nigeria’s leading anti-corruption institution, the Economic and Financial Crimes Commission, EFCC.
If Nuhu Ribadu’s assessment of Tinubu, which I believe was the outcome of his Investigative work, placed on record before the Institution of the Senate while testifying on its floor is anything to go by, then the Senate must be reminded of its record and the public of files with EFCC kept since the day of Ribadu and enriched by the tenure of Bawa.
Nuhu Ribadu’s silence on whereabout of Bawa is no longer noble. As the Security Adviser to the President, the security of Bawa as a citizen should be of interest to him and his Principal.
We all must ask, where is Bawa, and his handover notes and files that Olukoyede or the next EFCC Chairman will receive for effectiveness of the fight we must now start against corruption.
