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Lawyers Must Use The Legal Profession For Development


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The Interview Magazine

26

Activism runs in Chief Mike Ozekhome’s blood. Whether it is student union activism, or fighting in the trenches to remove the military from national governance alongside the likes of the late Gani Fawehinmi and Beko Ransome Kuti, or defending the defenceless to reclaim their rights free of charge, this legal giant knows his onions when it comes to fighting for the common cause. But this time, he is fighting his own battle; he is daggers drawn with the anti-graft body, EFCC, which he accuses of acting with impunity.  

Ozekhome also discusses corruption in the legal profession among other issues.

 

A Lagos High Court sometime ago unfroze the N75 million legal fees paid into your account by the Ekiti State Governor Ayodele Fayose, though an appeal has been filed against the ruling; how did you feel on that day?

 

I felt very honoured and appreciative of God Almighty, because it is God that defends the defenceless.

 It is on this note that I want to view the decision of Justice Abdullaziz Anka where I defeated the EFCC. And you could see from television footages where I knelt down for God, then I prostrated flat on my tummy, glorifying him and giving him full adoration because only He can do it.

I have defeated EFCC eight times in 12 months and I am not aware of any Nigerian, living or dead, that has been able to accomplish that feat. It is not by my power; it is by the grace of God.

Now, coming to the facts of the case, Justice Abdullaziz Anka actually described the action of EFCC as diabolical. EFCC has frozen the account of Governor Fayose, a sitting governor covered by immunity in section 308 of the 1999 constitution. You know, of course, EFCC can easily be predicted; once they want to rope you in, they must tie the money to Dasuki Gate. According to them, the money was proceeds of crime from Dasuki Gate. Of course, Fayose, as a sitting governor, has not been arraigned in any court because he has immunity. He has not been prosecuted; he has not been convicted by any court of law in Nigeria. Governor Fayose hired my services and I went to the Federal High Court, Ekiti, before Justice Taiwo O. Taiwo, and the judge listened to my argument against the EFCC, represented by Rotimi Oyedepo. In fact, each of us submitted for three hours, and it's there in the 54-page document that we each submitted for three hours, and I told the court to set aside the exparte order by Justice M.I.D. Idris freezing Fayose's account because it was based on massive suppression of material facts. What were the material facts? The EFCC,in freezing Fayose's account, only exhibited an account number without naming who owned the account because they knew that if they showed that the account belonged to a governor, Justice Idris would not have touched it. So, they hid the owner of the account and just wrote the number of the account as if it was an orphan - just like the orphan money they are discovering every day. Every day now, they are discovering money that has no parents – orphan money. So, I was able to show that the owner of an account is the owner of the account; that Zenith Bank which was made the defendant was just a custodian of the account and you cannot sue a custodian of an account by proxy because the money belongs to Fayose, not Zenith Bank. I gave more than ten instances how they made infractions on the rights of Fayose, particularly the right to fair hearing. You have no right to freeze anybody’s account or to attack anybody's property as EFCC has been doing in Nigeria without giving that person the opportunity to be heard. That is section 36 of the constitution, section 37 of the constitution and sections 43/44 of the constitution – the right to own property. It says that if anybody takes over your property, he should give you an opportunity to look at the property and determine your interest in it for the purpose of compensation to be paid to you. The EFCC has been going around like a drunkard, freezing a sitting governor's account with exparte order, attacking Nigerians’ properties in the name of fighting corruption. The judge agreed with me and unfroze the account. Meanwhile, I charged Fayose for eight cases and for his friends like Agbele, Fani Kayode, amongst others, and he couldn't pay. Eight cases! Some in High court, some in Federal High Court, some in Court of Appeal, some in Abuja, some in Lagos, some in Ado Ekiti. And he told me, ‘Sir, I cannot pay you now because I don't have money, and I can't pay you from state's funds because it is a personal case. Anytime I get money, I will pay you.'

 So, when the accounts were unfrozen, I said, ‘Sir, I have got your account unfrozen, can you now pay me?’ Fayose took the order certified from the Federal High Court, Ado Ekiti, to the second defendant in that matter, the Zenith Bank, which was also in court when I defeated the EFCC. He withdrew N5 million for himself; Nigerians saw it when Fayose displayed the money on television and newspapers that he had been paid because the account was unfrozen. It was during the same transaction and he sent the N75 million into my GTB account. And what did the EFCC do? He sent me the money on the 15th of December, 2016; on the 11th of February - more than 50 days later - EFCC went surreptitiously, like a thief, before another judge, Justice Abullaziz Anka, and got an exparte order again to freeze my account. But as God would have it (not many Nigerians know this, although I have said it in the press), I had withdrawn and used up the money before then. So they only froze about N25,000.

In their vindictive bid to humiliate me, and deprive me of the fruits of my labour, notwithstanding that even the holy Bible and the holy Qur’an say that a labourer deserves his wages, they did not even check the account to know if there was money there. It was in their counter-affidavit that they said that the money was no longer there, that I must have guessed ahead that in future they may freeze my account, so I deflected the money and used it. Of course, I had used my money because it was paid to me from a legally, court-ordered unfrozen account. There was no encumbrance. There was no judgement that it was not Fayose's money. Meanwhile, they have appealed at the court of appeal and their motion for stay of execution was from the same Justice Taiwo O. Taiwo. While the motion was still pending in the court of appeal (you know EFCC for forum shopping), they went surreptitiously before Justice Anka - in a forum shopping manner - to freeze my account again.

 What they said was that they were trying to preserve the Rex, the subject matter, before a court of appeal. Court of Appeal rule says that once a matter has appeared in a court of appeal and the appeal has been entered, no court has jurisdiction over that matter. So, I filed a motion before Justice Anka to unfreeze the account. I said, ‘My Lord, like in the first instance when EFCC misled Justice Idris to freeze Fayose's account, EFCC has come again to mislead you to freeze my account. For 120 days, they didn't tell you, sir, that they lost that case to me and that the money was paid to me from an unfrozen account; there was no encumbrance. They didn't even tell you that there was no money any longer in that account. They sued Chief Mike Ozekhome, instead of describing me as Mike Ozekhome trading under Mike Ozekhome Chambers. The money was paid to Mike Ozekhome Chambers, not to me, but they thought they could humiliate me. They sued Chief Mike Ozekhome; unfreeze this account because it was not proceeds of crime, because it does not involve money laundering.’ We went to court up to four times and, on the fifth occasion, the judge delivered judgement and described their action as diabolical. The judge lambasted EFCC.

In fact, out of the eight cases I defeated them (EFCC), the judge took time to lambast them. Justice Yusuf Halilu described their action as that which can only happen in a society of dictatorship. In another case I defeated them; that was the case of Nicholas Achinze and the Army. I defeated them again in the case of Barrister Okpetu, a practising lawyer who they had gone to abduct from his office in Warri and brought him to Abuja and detained him for six days. I went to court and won the case. Justice Adeniji ruled and awarded the cost of N5 million damages against the EFCC and N3 million against Julius Berger which had reported the matter falsely. Julius Berger had since paid that money. Of course, trust EFCC, they don't obey court orders; they have not paid. They just quickly file a funny appeal and file a motion for stay of execution which, till today, they have never pursued; they just hang it there. In so many other cases like that, I defeated them and the judge described their action as diabolical.

 

 But many think the money is too much for a fee?

 For a lawyer of my standing and with my kind of experience? No. I work hard for my money. I work till 7pm and I still have to write my articles. Sometimes, I and the lawyers working with me stay up until 10pm. I write two newspaper columns every week, the back page of The Sun and Sunday Telegraph. I don't know how many Nigerians write two columns, even journalists, yet I write two columns every week despite my busy legal schedule - cases at the Supreme Court, appeal court, high courts and my having to write briefs, with my habit to write books. I have trained lawyers, I have trained professors, and I have trained Senior Advocates of Nigeria. The former Senate president and secretary to the government of the federation (SGF), Senator Pius Anyim, worked under my chamber. I have many of them like that, that have passed through my chamber. I have delivered six lectures already this year alone. So I work very hard. I work for every kobo I earn. I don't do any contract with any government. I have no government appointment, and I have never had any. I do not have godfathers because I do not need godfathers since I have God the Father.

 That is why under Mike Ozekhome Foundation, I give life to the lifeless, to the walking corpses, the sleeping dead and power to the poor peasants, women traders, poor farmers, and I give scholarship to indigent students year in, year out. I empower the youth in many ways and I give grants to uplift them, because having been born into a poor family, I know what it is to be poor. That is why a lot of the cases I handle are pro bono.

 

 As a senior advocate of Nigeria (SAN) and a Bar man to the core, are you not bothered about the recent court verdict that nullified the NBA Amendment Act under which the Abubakar Mahmood-led NBA leadership emerged?

 

 I am not bothered because the court should do their job. What it simply means is that, in law we say ‘from nothing comes nothing.’ Lord Vonni would put it, in the case of Mcfoil vs UAC In 1862: you cannot build something upon nothing and expect it to stay; it will collapse. So an edifice that has no foundation will collapse no matter how beautiful it is. So, what that judgement simply means is to remove the mat from the feet of the present executive. I learnt they have appealed but the court will decide, because if an election was held on a non-existent constitution - the last three constitutions, the court says they never existed - which means that no election was held. It would have been pursuing trifles, which means everything will come to nothing. It means that the NBA would go back and use the old constitution, which is valid, and call for a fresh election. Therefore, I am not bothered. I don't see any worry in it.

 

 Does that not amount to serious mistake? Are you suggesting that the Abubakar Mahmood-led executive should step down?

 

Well, they have the right of appeal and I think they have appealed and have filed a motion for stay of execution. A right of appeal lies with a person who has lost a case, and even the constitution provides for the right of appeal. The matter is not decided until the Supreme Court, which is the highest court in the land, has finally decided it. In fact, the Supreme Court, in the case of Nyesome vs Sanusi in 1983, The Nigeria Law Report, said the right of appeal is a constitutional right; the right is not extinguished until it has finally been exercised and carried out. So it is the right of the NBA led by A.B. Mahmood to appeal to the court of appeal, and even if they lose, they can still appeal to the Supreme Court. If they finally lose there, then they will know that the game is up.

 

 Is it not ridiculous that an association comprising the best in the profession, including erudite lawyers like your humble self, failed a simple task of registering the NBA Amendment Act with the Corporate Affairs Commission (CAC) until a Lagos- based lawyer, Mr Olasupo Ojo, went to court and got the court to declare the amendment null and void?

 

It is most embarrassing, self-immolatory, self-destructive and self-inclusive. It is very embarrassing because we are supposed to be the guardian angels of law. We are supposed to be the sentinel at the doorsteps of the breaches of rights, of breaches of due process and of breaches of the rule of law. And it became a case of physician heal thyself. If we cannot remove the log from our own eyes, why are we asking the other persons to remove little moles from their own eyes? It is self-contradictory; it doesn't make sense. I think what it means is that we didn't do proper housekeeping. It means we were minding the affairs of others without minding our own affairs. It is one of the most embarrassing moments in the legal profession in this country, and it means that we should never take anything for granted. This took a member, Olasupo Ojo, to go to court to say: this is your mirror; see thyself in the mirror. Looking at ourselves in the mirror, we discovered for the first time that we were naked, that we had been dancing naked in the market.

 

 Some stakeholders have alleged that corruption is actually thriving in the legal practice, citing a situation whereby junior lawyers are being paid peanuts while the senior lawyers who own the chambers smile to banks with millions of naira/dollars. How do you react to this allegation?

 

That is a stupid allegation. I don’t remember the last time I read that there is any lawyer in Nigeria that engages in slave trade. I am not aware of that. I think what a lawyer pays his juniors depends on the contractual agreement between the senior and the junior. You must also know that some junior lawyers, immediately after their law school, want to wear the kind of shoes you wear. They want to drive the kind of car you drive. And that is why some of them don't practise; they quickly leave the chamber. I know many juniors who come to me, after practising for 10 years, they now come back and say, ‘Sir, we want to join you,’ because they had been doing charge and bail and they realized they couldn't make the money they thought they would make, forgetting that you have passed through a lot of turbulence before becoming what you are. I worked with Chief Gani Fawehinmi. I rose gradually from junior counsel to senior counsel. From there I became his deputy head of chambers in 1985. My salary under Gani Fawehinmi's chamber was N400. He started me with N300 in 1983 and increased it to N400. When he promoted me to deputy head of chambers, he increased it to N500. But Gani Fawehinmi was giving scholarships to many students every year and had a fleet of cars.

 However, I can't remember any junior being tied, or being shackled in the leg, or being manacled on the hand to say ‘you must work here’. I am aware of other juniors that have left me for other chambers and I am also aware of other juniors that have left other chambers to my own, maybe based on better services. But I normally make sure I call the chamber that he is leaving to know under which circumstances he is leaving. Many times I discover that the junior leaves because, maybe, he has a problem with the senior lawyer, and, of course, I will never take such a junior. But if the senior said, 'We disagreed over salary and I cannot pay more than that', I can now consider what to pay. It depends on the arrangement. In some chambers, some seniors give some juniors money when a case has been successfully prosecuted. That is the style I engage myself in. When I bring that money, I give to juniors and I say, ‘Oh, a client just paid, take X amount and share among yourselves’, both the legal and paralegal staff. But on no account should the junior now see it as a right that I have to share my professional fees with him or her, because he is on salary and on prerequisite of office which we had agreed on. But then, I use my discretion. If I feel, for example, that some juniors had gone out of their way and worked till late hours on a case, I give money to them. I do it now and again, at times almost on a daily basis. If I feel that some juniors have to travel for a case, I give them out-of-station allowance. I make sure they stay in the best hotel. Every year I sponsor them, for example, to NBA conferences. I pay their hotel bills, transport allowances and everything.

 

The stakeholders are further raising issues over a practice where senior lawyers corner fat briefs, charge humongous legal fees, acquire exotic cars and properties in highbrow areas, whereas the junior lawyers who are actually doing the job are earning ridiculously low salaries. What is your take on this?

 

That is why I said it depends on the chamber. So I can't speak for other lawyers; I am speaking for myself. I know some lawyers, who are even senior to me or who are wealthier, even do better than me. I know some lawyers even do better than me because we do compare notes. I also know that some can't meet my standard. But it also depends on the senior: how many briefs is he getting? If you are not getting briefs, for example, even though you are a SAN, you can't go and steal to ingratiate a junior. I also know that we charge different amounts. Some Nigerians are funny, saying how could they pay a lawyer N75 million for a case. What they don’t know is that I am actually handling eight cases for Fayose, his friends and his aides, and that the N75 million is actually part payment of the bill I gave him. So, let us even assume, for the purpose of argument, that Fayose paid me N75 million for one case, which is not true, it would have been based on an agreement between me and Fayose - a very brilliant and intelligent sitting governor. I wouldn't have to force him; it is a contractual matter.

I have never regretted that decision because that was the foundation of my legal profession. But then, at Ife, I was a journalist and a human rights activist. We were those moving the campus. I was one of the best debaters, with people like Edore Agba and others. I led the Ife delegation in January 1980 to the University of Benin where we passed a new NANS (National Association of Nigerian Students) constitution when it was changed to NONS after the Okeowe, Ali-Must-Go crisis of 1978.  Femi Falana and others were in our delegation. At Ife, I moved a motion for the impeachment of the then Speaker by throwing up the legal maxim: that you cannot be a judge in your own case. We were discussing something and I raised a point of order - that he could not preside over a case in which he was being accused. So, my motion was carried and the Speaker was removed and I was appointed the Speaker pro-tempore. I then presided over the proceedings to choose another Speaker and the executives. So, at Ife we were holding the authorities responsible to the students. I passed through people like Prof Agodi Onwumuchile, Tunji Abolade. I was a journalist at Ife; that is why I still write articles today. I was editor of X-ray Club. I founded, together with one Tony Ekore, the National Association of Nigerian Unity (NANU). I was the editor of NANU Voice. I was later chairman of X-ray Club. I was also writing serious articles. I remember one article I wrote which I now regret, ‘The Coming to Power of Robert Mugabe’, in 1980. I wrote that article because he had fought his way to power to remove a dictator, but as I am talking to you 30 years later, Mugabe is still in power. So, I was a students’ union activist par excellence.  We invited all the notable Nigerians to come and give us lectures at Ife, people like Chief Bola Ige, Gani Fawehinmi, Chris Okolie, Dr Tai Solarin, Prof Omafunmi Onode, Comrade Ola Oni, Dr Olu Onagoruwa, Shola Oshobu. We were bringing in these titans to come and give us lectures. So, my human rights activism started long, long ago; I didn't just jump into it. I had been there before we went into the successive military era. Olisa Agbakoba and I, Richard Akinola, Emmanuel Erakpotobo - six of us - founded the first human rights activist group in Nigeria: we founded the Civil Liberties Organization (CLO) on the 15 of October, 1987. It was CLO that gave birth to other human rights bodies that you see today. In 1992, I launched the Universal Defenders of Democracy (UDD). It was launched by Justice Akinola Aguda in April 1992. The former deputy Speaker, Emeka Ihedioha, was my director of publicity and I was the president. Okoli Okoronkwo, who is now with the NNPC, was my director of legal services. We were those in the trenches, on the streets, fighting successive military governments. At my last count, I was detained about eleven times. We were teargased, beaten, dehumanized and imprisoned. I used the platform of UDD to launch a campaign against the detention of the Kuje 5 - Gani Fawehinmi, Baba Omojola, Beko Ransome Kuti, Femi Falana and Segun Mayegun. I actually got an order in Lagos High Court stopping their trial. I was the one who also used the platform of UDD to stop the execution of General Zamani Lekwot who had been sentenced to death by the Babangida regime. I went before Justice Onolaja and I got the death sentence stayed. By 1998 we decided to form JACON, the Joint Action Committee of Nigeria. Gani Fawehinmi was the chairman and I was the vice chairman, publicity, and it was with JACON that we finally pushed out the military.

So, I have been in the trenches; I am still in the trenches. I didn't start it yesterday and I am not doing it for self aggrandizement. My defence of the common man is ingrained in me; it's part of me and you cannot separate it from me. An attempt to separate it from me is an attempt to separate Hamlet from the Prince of Denmark. It will be an attempt to argue that six is different from half a dozen; you cannot separate us. It's a part of me and it will remain a part of me. That is why I look at issues critically and I say it as it is without fear without favour. If a government does well, I praise it. If the government does badly, I give suggestion; I don't just criticize for the sake of it. I criticize and I give alternative idea what the panacea should be. So my advice, therefore, comes from the combination of my personal experience, because experience is the best teacher. For other lawyers who want to succeed, for the legal profession to succeed, we must hold our loft, the banner of honesty, of hard work, dedication, of seeing and using law, in the words of Prof Dean Rosko Pound,  as an instrument of social engineering. But I have gone beyond that stage. I now use law as an instrument of socio-economic, political and cultural engineering, to uplift the common man and woman. That is why a lot of the cases I handle are pro bono. That is why under Mike Ozekhome Foundation I give life to the lifeless, the walking corpses, the sleeping dead. I empower the poor peasants, illiterate women traders, poor farmers, indigent students. I give them scholarships. I empower the youth; I give them motorcycles and I do it year in, year out.

 

 With the benefit of hindsight and your knowledge of the law, is there any Act or legislation by the National Assembly that is greater or supreme to the 1999 Constitution (as amended)?

 

 Let me tell you, the people bandying about that argument are using it as a red herring. They are standing logic on its head. They know that there is no conflict whatsoever; that there is no contradiction whatsoever between section 2 subsection 3 of the EFCC Establishment Act, Law no. 1, Laws of the Federation of Nigeria 2004, and section 171 subsection 2 of the 1999 constitution. They know there is no conflict whatsoever, but they use that section 171 to throw woe on the faces of people who do not know or understand the law. I am going to explain it so that you will see there is no conflict whatsoever. The constitution of Nigeria was passed in 1999 and the EFCC Act came into being in 2004 - five years later; so the Nigerian constitution never envisaged an EFCC coming into being. That is number one point. I am aware that, by virtue of section 1 subsection 1 of the 1999 constitution, the constitution is supreme, and if any other law, including the EFCC Act, is inconsistent with the constitution, that other law would be null and void. It's there in section 1 subsection 1, then section 1 subsection 3. What did the provision of section 1 subsection 2 say? It simply says that the president shall have the power to appoint and dismiss or put in acting position the following positions: secretary to the government of the federation, head of the Civil Service of the Federation, ambassadors and high commissioners, personal staff of Mr President, permanent secretaries and heads of extra-ministerial departments. We are going to go into that very soon. You would see that ministers are not even mentioned in that section; rather, ministers and deputies are mentioned section 147. For ministers to be appointed, the president must go to the Senate. For these people mentioned in section 171, which does not include the Economic and Financial Crimes Commission at all, the president can appoint them, dismiss them, put them in acting position without going to the Senate; EFCC was not there.

 Next question, what about the heads of extra-ministerial departments? You would see that they put them side-by-side with permanent secretaries. The rule of interpretation means you must interpret things according to their likes. So, when you are mentioning goat, dog, cow, horse, donkey, you cannot begin to mention fowl, duck, bird, turkey, together in the same class. So, section 171 subsection two says permanent secretaries and heads of extra-ministerial departments, because permanent secretaries do not require Senate confirmation - the president can decide to appoint 500 permanent secretaries as he likes; he can also decide to reduce the number of permanent secretaries in Nigeria to five; it doesn't require the Senate to do so. An example of extra-ministerial department is Ecological Fund Office which is directly under the presidency; it doesn't need Senate confirmation because it is his prerogative.

The Debt Management Office (DMO) was an extra-ministerial office, so the president could appoint him anytime and dismiss him anytime without recourse to the Senate, but the DMO has now been given power through an Act by the National Assembly. So, from that day the Act was signed, it ceased to be an extra-ministerial department. The NNPC is governed by the NNPC Act; the Central Bank of Nigeria (CBN) is governed by the CBN Act; the EFCC is governed by the EFCC Act. Once a law governs the appointment of the head, then such head must be subject to confirmation by the Senate even though he or she is appointed by Mr President. Such agency is no longer under the supervision of Mr President and no longer falls under section 171. There is, therefore, no conflict whatsoever at all.

Now, the next question: what does the EFCC Act say? The EFCC Act simply made it clear and unambiguous, without any lacuna; it says that the chairman and members of the Commission, except ex-officio, shall be appointed by Mr President, but the appointment shall be subject to confirmation by the Senate. It's so clear; is there any ambiguity in it? Now the question is, can there be EFCC without the EFCC Act? It was this Act that breathed the oxygen of life, of existence into the EFCC as a body. It is this Act, in sections 6 and 7, 28, 32, 45, that gives the EFCC powers which they are using clandestinely to freeze citizens’ accounts using exparte orders. It is this same Act and sections that give them the power to attack citizens' properties the way and manner I already described using exparte orders, without giving them fair hearing. What these people are telling us is that we should use one section of the Act that gives them power to carry out their duties, but the very sections 2 and 3 that show how the executive chairman of this Commission should be appointed - subject to confirmation by the Senate, that we should ignore it and sweep it under the carpet because it is not convenient for them. A law should be used wholly or you throw away the whole law. You want to use some portions of the EFCC Act then throw away the portion that does not please you? That is self-contradiction. Instead, we should abolish the EFCC. But if you must use the portions that give the EFCC powers to act, then you must use the portion that shows how the EFCC chairman and other executives must emerge. You say you do not like the section of the EFCC which deals with the appointment of the very head of the Commission, and you say we should disregard section 171 which never envisaged the EFCC five years ahead, but you say we should use the same EFCC to harass and intimidate the citizens of the country; it does not work that way.

For example, a lot of Nigerians do not know that it is because of the failure of institutions that we are talking about EFCC and discussing Ibrahim Magu as if they are the same six and half a dozen. If we build strong institutions and not strong individuals, we should talk less about Magu when we talk about the EFCC. How many Nigerians know, for example, that there is supposed to be an EFCC Board? And that the EFCC Board is supposed to comprise the following: the heads or representatives of ministries of Foreign Affairs, Justice, Finance; directors-general of NIA, CBN, DSS, NDLEA, CAC, SEC, NDIC, Nigerian Communications Commission; the postmaster-general, comptrollers-general of Customs and of Immigration, inspector-general of police, and four other prominent Nigerians with cognate experience in law, banking and accounting, with the secretary of the EFCC as the head of administration. Do you know why they bring up these areas? It is to make sure that when the EFCC has anything to do with money, the member representing CBN will take it up immediately. If it has to do with drug trafficking or money laundering, the NDLEA will swiftly take it up from there. If it has to do with a matter of internal espionage, the DSS will take action. If it is a matter that has to do with external intelligence, then you quickly contact the representative of the NIA. That’s why the Board was created. It is because of the lack of inter-agency cooperation that you see rivalry amongst the agencies.

 

Is section 2 (3) of the EFCC (Establishment) Act 2004 on Senate confirmation of the EFCC chairman greater or superior to the power of the president to appoint, as contained in section 171 of the 1999 Constitution (as amended)? We ask these questions in view of the ongoing controversy over the power of President Muhammadu Buhari to retain Mr Ibrahim Magu as the EFCC boss despite his rejection by the Senate twice? It is a common knowledge that you have taken sides on the matter. We want to know why you insist on this argument in spite of disagreement from some of your colleagues.

 

People do not also know that it is not only a police officer that can head the EFCC, but we have had police heading the EFCC so far. Before Ibrahim Magu, there was Ibrahim Lamurde, Farida Waziri, Nuhu Ribadu. After Nuhu Ribadu, there was Farida Waziri, an assistant inspector-general of police under whom Ibrahim Lamurde and Ibrahim Magu were working at Special Force Unit (SFU) in Lagos. After Ibrahim Magu there would always be another person; soldier come, soldier go. How many people know, for example, that under section 2 subsection 1, it is not only a police officer that can head the EFCC but any serving or retired member of any government security or law enforcement agency? It says the person must have not less than 15 years cognate experience and he must not be below the rank of assistant commissioner of police; that is just the qualification. It means that any member who is not below the rank of assistant commissioner of police or its equivalent in following security agencies can act as the chairman of the EFCC: the Army, Navy, Air Force, Prison, Customs, Immigration, Civil Defence, NIA, DSS, DIA, even Fire Service and Traffic Police, because quite some of them are government security agencies while others are law enforcement agencies.

 So, we need to educate the country so that these intellectual revisionists do not put us in a mess. For example, from section 153 to 159 of the constitution, certain federal commissions and councils are dealt with and how they are appointed, how the appointment of their chairmen and members are all dealt with, i.e. the Code of Conduct Bureau, National Judicial Council, INEC, Federal Judicial Service Commission, National Population Commission, Nigeria Police Service Commision, Revenue Mobilization and Fiscal Commission, Federal Character Commission, Federal Civil Service Commission, National Defence Council, National Economic Council. Except for the ex-officio members, the chairmen and members of these commissions and councils are appointed by Mr President subject to confirmation by the Senate, like in the case of the EFCC. But no confirmation is required for the appointment of members of Council of State, National Defence Council and National Security Council because of their sensitivity. But for INEC, NJC, NEC, the president shall consult the Council of State. And then, to remove the chairmen of INEC, NJC, CCB, FCC, FCSC, NPC, Revenue Mobilization, you must need two-thirds vote of the Senate. And all the offices I have mentioned above, they are to appoint members and discipline their members without recourse to any other authority and persons so as to give them authority. So the question at hand is, when the president sends names for ministers to be made ministers and ambassadors to be made ambassadors, and the Senate rejects, can the president appoint them as acting ministers or acting ambassadors? Have you ever heard of acting minister or acting ambassadors? So, how can we have an acting chairman of the EFCC after he has been rejected by the Senate twice? These are people that are standing the law and logic on their heads because of what they can get, but they are destroying the body corpus of our law. An acting capacity is a stop-gap measure; an acting capacity is not to last forever; it is to last till you do a certain thing and the certain thing is to take a step towards the confirmation, and the Senate on two occasions said we are not confirming. The honourable thing to do is to withdraw his name quietly and put another person there; the heavens will not fall.

 

 But some lawyers and public analysts are saying that your argument on certain national issues are not altruistic on the grounds that some of your clients, who you defended vociferously on the same issues in the past, are now in the opposition. They further argue that you are not consistent on these issues as they claim that you once backed what you are now opposing. They cite the controversial suspension of the former CBN Governor Lamido Sanusi (now Emir of Kano) and the power of the Senate to summon - the invitation of the former minister of petroleum resources, Mrs Diezani Alison-Madueke, and others. How do you react to this?

 

It is not true. Let me first start by disagreeing with Prof Osinbajo and the other people on that side. I have already given you reasons why I am disagreeing with them and I will still take you to America later where we borrowed our presidential system, and we must see how it is done there. When we borrowed our presidential system from America in 1979 through the Obasanjo Constitution which Shagari first used, we must note that we discarded the West Minster parliamentary system of government. So, we must know how they do it in America. But before then, it is important to state that Prof Osinbajo and other people that are arguing in that line are totally wrong for the reasons I have given. I have given the law, the provision of the constitution, section 2 subsection 3 of the EFCC Act. Let me tell you, the principle of interpretation is that what is not included is excluded. That means since what is included in section 2 subsection 3 of the EFCC Act is executive chairman - not acting chairman whose confirmation has been rejected twice by the Senate, the moment they presented his name to the Senate as acting chairman and the Senate rejected his name, then he stops acting. What the government is doing today is utter derision of our laws. It amounts to impunity and it’s a stab in the back of the institution - which is the Senate, and it is a stab on the hallowed doctrine of the separation of powers which people like Plato, Aristotle, John Cavage, Jean Jack Russell expounded and which was heavily popularized in 1748 by Barron de Montesquieu, a French philosopher who postulated that there ought to be separation of powers between the three arms of government, that they must each check and balance the other so that there would be no absolutism, authoritarianism or dictatorship. What they are doing is what you could have in military dictatorship, what you could have in Louise de XIV of France when he would say ‘I am the state’. What they are doing amounts to illegality, unconstitutionality and that is clear impunity. That doctrine of separation of powers has been encapsulated in sections 4,5 and 6 of the 1999 constitution, which provide for the separation of powers among the executive, legislature and the judiciary, and hold that they must check and balance each other. It's to prevent a situation, for example, where the president would appoint a particular person, maybe he wants to use the person for a particular purpose - which appears to be so in this case now, or maybe to appoint his son or wife and say, ‘You are the chairman of EFCC’. That is why the framers of section 2 subsection 3 say you must go through the Senate to confirm or reject. And once the Senate has rejected, that ends the matter.

Now, to the question that you asked, on the CBN matter, you would see why the facts and issues are different. It's people who don't want to listen or pretend to be asleep, and when a man pretends to be asleep, you can never wake him up because he is actually not sleeping. So, there are people who have decided to remain impervious to reason. All you need to do is to explain your own side and go, because with such people, there is nothing you can do.

 In the case of Lamido Sanusi, he was governor of Central Bank and he was in government. He was appointed by the president under section 5 of the Central Bank Act, and the provision of section 5 of the CBN Act is quite different from section 2 subsection 3 of the EFCC Act. Section 2 subsection 3 of the EFCC Act simply says, ‘President, you can appoint, subject to confirmation by the Senate. But the Central Bank Act went further to say, ‘President, you can appoint the governor of the Central Bank subject to confirmation by the Senate, but you can also dismiss the Central Bank governor subject to two-thirds of the majority vote of the Senate. The issue of dismissal in Magu’s case in section 2 subsection 3 doesn't even arise ab initio, not to talk of dismissal. In the case of the CBN governor, a damning report was written against him, just as a damning report was written against Magu by the secret police, which the government, unfortunately and without shame, is now denigrating - its own secret police, the same secret police they praised when they invaded the houses of judges and justices between the ungodly hours of midnight and 5am and they clapped at that time. They said, ‘Oh it is fighting corruption’ but they didn't look at the ACJA (Administration of Criminal Justice Act) to know that under sections 5 and 7, you have to treat people with human dignity; you must not denigrate them. How can Mr President look at the humongous allegations in the report sent by the his own secret police and say he did not agree with them. That means he has failed the integrity test; just the same way the presidency disagreed with the court for releasing Dasuki after the court granted him bail. They want absolutism; they want fascism; they want to be the Supreme Court; they want to be the secret police; they want to be the Senate. They move against the Senate when the Senate is not doing their bidding. They move against judges when they are not doing their bidding. But let me tell you: this country would never turn to that. It's too late for Nigeria to turn into a banana or fascist country.

On Sanusi’s case, in February 2014, I was at Channels TV, and I argued that the president could suspend Sanusi. Do you know why? That is where the Interpretation Act comes in, which they are trying to drag in. Interpretation Act comes in when there is no provision on a particular thing or when there is lacuna; when there is a void, you now resort to Interpretation Act to find out what to do. But there is no lacuna in the case of section 2 subsection 3 of the EFCC Act. It simply says the president shall appoint the chairman of the EFCC subject to confirmation by the Senate; so where is the lacuna? And Senate has rejected; where is the lacuna? Why are they now using the Interpretation Act to say he (Magu) can now act?

In the case of Sanusi, section 5 of the CBN Act says the president can appoint him subject to confirmation by the Senate and the president can dismiss him subject to two-thirds of vote of the Senate. There was no provision for suspension. Then I brought in section 11 of the Interpretation Act, and it says he who can appoint can also dismiss and can also suspend. That was my argument, so there was no contradiction between my argument then and my argument now. That was how section 11 of the Interpretation Act came in. We have seen that President Jonathan can hire and fire, going by the Interpretation Act; it's a case of employer-employee or master-servant relationship. There is no contradiction at all; I am not a self-revisionist. I cannot contradict myself. I know myself. I have been consistent since the last 36 years and I still stand by the same argument.

Contrary to what some people say, it was not me that went to court in the case of Sanusi; rather Sanusi went to court himself to challenge the action. And the then attorney-general, Mohammed Adoke, having seen my argument and my line of thinking, hired me to defend the attorney-general of the federation, hired Dr Fabian Ajogu (SAN) to defend President Jonathan and hired Solomon Umoh (SAN) to defend the CBN, because he (Sanusi) sued President Jonathan, CBN and the attorney-general of the federation. These two persons defended Jonathan and CBN but I defended the attorney-general of the federation; I defended the federal government of Nigeria. The attorney-general of the federation is the first chief law officer of Nigeria, so I was actually defending Nigeria; Jonathan was and is different from Nigeria. We put this argument forward before Justice Gabriel Kolawole, filed a notice of primary objection and said he who can hire and fire can suspend. So the suspension is right and that, in any case, it was a matter of master and servant relationship; that this matter should not have come to the federal high court at all; it should have gone to the National Industrial Court. And I won the case. He actually went to the National Industrial Court and later withdrew the case.


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