The ruling All Progressives Congress (APC) could not have asked for more. With a majority in the National Assembly, getting what it wants from the legislature should not be a problem. So, many thought. But rather than work together, the Presidency and the Senate, especially, have been working at cross-purposes. 12 of the 109-member Senate are either being tried or investigated by the Economic and Financial Crimes Commission (EFCC) and other anti-graft agencies. Senate President Bukola Saraki is being tried by the Code of Conduct Tribunal (CCT) for alleged false assets declaration. The Senate’s rejection of Ibrahim Magu as EFCC Chairman, for the second time last month, has raised a question of how fair the upper chamber was to him. Can the Senate be trusted to help President Muhammadu Buhari in the ongoing anti-corruption war? ERIC IKHILAE sought lawyers’ views.
ALMOST two years in the saddle, the Muhammadu Buhari-led government, whose policy thrust is anchored on the elimination of corruption has yet to make major breakthroughs and many are blaming the Senate for this.
The government is finding it difficult to establish a robust legal framework to drive its anti-corruption efforts. Today, many bills sent to the Senate in this regard have been left unattended to.
The executive resorted to an administrative policy when the Senate did not pass the Whistle-Blowing Bill, intended to provide legal backing for whistle-blowers and also protect them.
Attorney-General of the Federation (AGF) and Minister of Justice Abubakar Malami (SAN), in a television programme, expressed the executive’s frustration with the Legislature’s posture.
Malami said the National Assembly’s failure to pass the Proceed of Crime Act (POCA) Bill pending before it accounts for the Federal Government’s inability to establish a body to manage recovered assets. He said: “If Proceed of Crimes Act had been promulgated, we would have had in place an agency that would formulate policy on the management of recovered loot”.
There are many other similar bills pending before the Senate, some of which are the Mutual Legal Assistance in Criminal Matters Bill and Money Laundering (Prohibition and Prevention) Bill.
To many, the Senate’s posture did not come as a surprise, because it has from inception, evinced traits that portray it as an institution averse to the Buhari government’s anti-corruption policy.
This school of thought is quick to cite the Senate’s amendment of the Code of Conduct Bureau (CCB) and Code of Conduct Tribunal (CCT) Act amid the trial of its president Bukola Saraki.
By the amendment, the Senate sought to subject the CCB/CCT to the control of the legislature and not of the Executive.
The Senate ignored the agitation of all, including the CCT and the Judiciary, that, for effectiveness and independence, the CCT, in particular, must be severed from the executive and retained with the Judiciary.
They also cited the Senate’s refusal to confirm the nomination of Ibrahim Magu as Economic and Financial Crimes Commission (EFCC) Chairman as another proof that it is working against the government.
The Senate, observers noted, crossed the line, when its members asked the Federal Government to discontinue Saraki’s trial before the CCT, as a condition for it’s support for the government’s policies, including the war against corruption.
How we got here
Watchers believe that two factors are responsible for all this. First, they noted, was the process leading to the emergence of the Senate leadership. Second is the composition of the Senate.
They argued that President Buhari’s seeming lack of interest in the choice of leadership of the Senate accounts for why the legislature and the executive now appear to be working apart.
According to observers, the president should from the onset have shown interest in who leads the Senate, to ensure the success of the anti-corruption war.
It may be difficult getting the Senate to key into the war because some of its members are either being tried or investigated for alleged corruption.
Senators on trial or under probe for alleged corruption
Investigation by The Nation revealed that major players in the 8th Senate are either being tried or investigated for corruption-related offences.
Some of these senators were named in a suit marked: FHC/ABJ/CS/102/2017 instituted at the Federal High Court, Abuja by businessman, Raji Oyewumi. According to Oyewunmi, they include the following:
Saraki
Oyewumi in a supporting affidavit, noted that Senate President Dr Bukola Saraki is being tried before the CCT on false assets declaration charges,
Godswill Akpabio
Senator Godswill Akpabio is being investigated on allegations of diversion and embezzlement of public funds while in office as Akwa Ibom State governor.
Aliyu Wammako
Senator Aliyu Wammako, he said, is being investigated by the EFCC in relation to alleged abuse of office, misappropriation of public funds and money laundering while in office as Sokoto State governor.
Danjuma Goje
Senator Danjuma Goje, a former governor of Gombe State, Oyewumi noted, is being tried by the EFCC for charges relating to corrupt practices and money laundering before a Federal High Court in Gombe, in a charge marked: FHC/GM/CR/33C)2011.
Joshua Dariye
Senator Joshua Dariye, Oyewumi said, is being tried by the EFCC on a charge marked: FCT/HC/81/2007 before Justice Bukola Banjoko of the High Court of the Federal Capital Territory (FCT) in Gudu. He is accused of embezzling public funds while in office as Plateau State governor.
Adamu Abdullahi
Senator Adamu Abdullahi, Oyewumi noted, is being prosecuted in charge No: FHC/LF/CR/8/2010 before the Federal High Court in Lafia, for alleged corrupt practices offences while in office as governor of Nasarawa State.
Abdul-Aziz Nyako
Senator Abdul-Aziz Nyako is being tried before the Federal High Court, Abuja, with his father, Murtala Nyako (a former governor of Adamawa State) on a 37-count charge of criminal conspiracy, stealing, abuse of office and money laundering to the tune of N29b.
Jonah Jang
Senator Jonah Jang, according to Oyewumi, is being investigated by the EFCC in relation to his activities as governor of Plateau State, particularly his handling of N2billion Small and Medium Enterprises (SME) loan given to the state by the Central Bank of Nigeria (CBN).
Rabiu Kwankwaso
Senator Rabiu Kwankwaso, Oyewumi noted, is being prosecuted by the EFCC on charges related to abuse of office and misappropriation of public funds during his tenure as governor of Kano State.
Stella Oduah
Senator Stella Oduah, he stated, is being investigated by the EFCC for a contract awarded while she was Aviation Minister to I-SEC Securities Nigeria Ltd, where public funds were allegedly diverted, according to a petition by Ken Asogwa.
In October last year, Justice Adamu Kafarati of the Federal High Court, Abuja rejected Oduah’s prayer for among others, an order restraining the EFCC and other investigative agencies from arresting and prosecuting her over the controversial purchase of two armoured BMW vehicles at the cost of N255 million by the Nigerian Civil Aviation Authority (NCC) under her watch as the Aviation Minister in 2013.
Theodore Orji
Senator Theodore Orji is, according to Oyewumi, is being investigated by the EFCC in relation to the alleged misappropriation of public funds while he served as Abia State governor, including the N2 billion SME loan from CBN, as contained in a petition of a group, Save Abia Initiative for Change.
Ahmed Sani
Senator Ahmed Sani, Oyewumi stated, is being investigated by the EFCC in relation to allegations of abuse of office and misappropriation of public funds while in office as Zamfara State governor.
Beyond the question marks sorrounding the financial dealings of these lawmakers in those transactions, observers argued that the 8th Senate, since its inauguration in 2015, can hardly be associated with any noble deed.
They noted that with the Senate, it has been one scandal or the other. The latest of such scandals, observers said, is the alleged importation of a bullet proof Sport Utility Vehicle (SUV) for the Senate President with forged documents.
Lawyers, including Wahab Shittu, Abubakar Sani, Tosin Ojaomo, Dan Ikechukwu are worried by the Senate’s posture to the government’s anti-corruption efforts, particularly in relation to Magu’s confirmation.
Senate, Magu and the courts
At the last count, about three cases have been filed, challenging the Senate’s handling of the confirmation of Magu.
In his suit marked: FHC/ABJ/CS/59/2017 filed on January 24, 2017 Ojaomo is contending, in the main, that the Senate President (by extension, the Senate) is without the powers to reject a nomination made by the President under Section 2(3) of the EFCC Act 2004.
Ojaomo said his suit is intended mainly to shed light on the actual role of the Senate in the confirmation of a person appointed by the President as EFCC Chairman, argued that the Senate exceeded its powers when it rejected Magu’s appointment.
“The only ground on which the Senate can reject a person appearing before it is when the person is nominated and recommended to the Senate for screening, vetting and subsequent confirmation, like a ministerial nominee.
“In the instant case, the Senate is to confirm the qualification of the appointee as sent by the President. And, where the Senate is of the view that it requires additional information in accordance with the statutory requirements stipulated by the Act, with respect to the qualification of the appointee, it can refer to the President for further clarification, but not to reject a statutory appointment validly made by the President.
“The role of the Senate in the confirmation of the appointment of a Chairman validly appointed by the President for the EFCC, according to the Act that created the commission, is to ensure that the requirements stipulated in Section 2(1)(a)(i)(ii)(iii) of the Act are duly complied with by the President in making the appointment,” Ojaomo said.
The Act, in Section 2(1)(a) (i)(ii)(iii), provides: (I) The Commission shall consist of the following members (a) a Chairman, who shall (i) be the chief executive and accounting officer of the Commission; (ii) be a serving or retired member of any government security or law enforcement agency not below the rank of Assistant Commissioner of Police or equivalent; and (iii) possess not less than 15 years’ cognate experience.
Ojaomo argued that, where the necessary requirements were complied with, “the Senate is statute barred from rejecting the nominee for the office of the Chairman of the EFCC in the said Act or any law.”
He contended that the Senate erred in law when it held a plenary session and decided to reject a valid nomination made by the President pursuant to his powers under a valid law.
Ojaomo added that it was only the President that could decide who to appoint as the EFCC Chairman and not the Senate.
He argued that, the President, having exercised his powers under the EFCC Act to appoint a qualified person for the office of the EFCC Chairman, in compliance with the provisions in sections 2(1)(a)(i)(ii)(iii) and 2(3) of the Act, the Senate has no further say on the choice of a person so appointed.
Ojaomo wants the court to declare that the Senate has confirmed Magu’s appointment in accordance with the provisions of the EFCC Act 2004. He also seeks a declaration that the Senate lacks the statutory power to reject Magu’s appointment as the EFCC Chairman.
He also wants an order, activating its statutory powers for the interpretation of the provisions of sections 2(1)(a)(i)(ii)(iii) and 2(3) of the EFCC Act in relation to appointment of EFCC Chairman and Senate’s confirmation of such appointment, within the dictates of the law.
Infuriated by the Senate’s handling of Magu’ case case, Abuja-based lawyer, Abubakar Sani has asked the Federal High Court to nullify the provision under Section 2(3) of the Economic and Financial Crimes Commission (EFCC) Act subjecting the nomination of the President for the Chairman of the EFCC to the confirmation of the Senate.
In his suit marked: FHC/ABJ/CS/278/2017, filed on April 4, 2017 in Abuja, Sani wants the court to declare that, to the extent that Section 2(3) of the EFCC Act purports to subject the appointment of the EFCC Chair, by the President, to the confirmation of the Senate, the provision in the EFFC Act is ultra vires and invalid, on the ground that it is inconsistent with the spirit and intendment of the Constitution in Section 216 (2).
Sani argued that the intention of the provision of Section 216(2) of the Constitution was to give the President a free hand in appointing the heads of law enforcement agencies, without such appointment being subject to confirmation by any person/authority.
Oyewumi, in his suit filed on February 13, queried the moral standing of Saraki and other senators being investigated and tried for alleged corruption related offences as it relates to issues concerning the decision on whether or not to confirm Magu.
The plaintiff’s contention is that, since the Senators are either being tried or investigated for economic and financial crimes by the EFCC, Magu will not be afforded fair hearing by the Senate.
Shittu, a legal practitioner and Law teacher at the University of Lagos, noted that although the senators being investigated and prosecuted are presumed innocent until the contrary is proved, it is naturally impossible for Magu to receive fair hearing before the Senate headed by Saraki and composed of others being similarly tried and investigated.
The solution
A lawyer, Joel Chukwuma, argued that President Buhari possesses the capacity to overcome the challenge currently posed by the Senate to the success of his anti -graft war.
“If the President is serious about achieving success in his fight against corruption, he needs to act. He cannot just sit there and pretend things will fall in place. In politics, particularly under our clime where it is seen as a game of life and death, things do not fall in place on their own.
“Honestly, I am disappointed in the turn of events. It betrays the president’s political naivety. How did President Buhari expect a Senate, led by someone (whose name is associated in almost everything negative) and populated by individuals (who are either being probed or prosecuted) to support him in fighting corruption?
“It is either the President learn to act appropriately, by taking the necessary measures, which I believe he knows, or we forget about the ant-graft war,” Chulwuma said
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