By Madu Onuorah
Can any of the institutions of the Nigerian State rightly act against or above the Constitution through either flouting the laws, disobeying Court orders or acting without regard to due process or procedures especially in cases before the courts? This has come to the fore based on the drama unfolding between the EFCC (Economic and Financial Crimes Commission) and Lieutenant General Kenneth Tobiah Josiah Minimah, Nigeria’s former Chief of Army Staff.
It is worrying that democratic institutions created by law, are manifesting brashness reminiscent of the dark days of military dictatorship. And it is surprising that such democratic structures are not even sparing the Armed Forces of Nigeria and its personnel.
The EFCC is part of the institutions created by the administration of former President, Olusegun Obasanjo, in 2003. And it derives its existence and powers from the 1999 Constitution (as amended). Yet in many instances, it seems that the EFCC acts as if it is above the constitution.
Take a look at this. The EFCC has filed criminal charges against General Minimah and others over alleged diversion of N13 billion meant for procurement of arms. The other two listed as defendants in the charge before a High Court of the Federal Capital Territory (FCT) are a one-time Chief of Accounts and Budget of the Nigerian Army, Major General A. O. Adetayo; and a former Director, Finance and Accounts of the Nigerian Army, Brigadier General. R. I. Odi.
The EFCC, in processes filed in Court, said it had on August 15, 2016, received a report by the Committee on the Audit of Defence Equipment Procurement in the Nigerian Armed Forces (CADEP) from 2007- 2015, chaired by AVM John Ode (rtd) alleging that between 2010 and 2015, “several billions of Naira were received by the Nigerian Army from the Federal Government for procurement of Military hard-wares and were discovered to have been misappropriated by senior army officers.”
The Commission then proceeded to request the Military authorities to release the affected officers to face prosecution.
As law abiding citizens, the affected officers went to a Federal High Court to challenge the suit, especially the procedure, seeking whether the court was competent to try them as military officers. The EFCC was duly served on this suit. The Federal High Court had fixed the hearing of the suit by Minimah & Co. for December 9.
But in a show of brashness never even witnessed during the days of military rule in the country, EFCC simply ignored the suit and went ahead, on the eve of the hearing of the suit, to announce to the media that it had charged the affected senior officers to court.
It is not only the brazenness of the commission that is worrying. But the EFCC is trying to stunt a beautiful court case that could have had a serious impact and enrich the country’s legal and judicial system. The grounds of the case instituted by Minimah & co are exciting and look like a new dimension in Nigeria’s legal jurisprudence.
Through their lawyer, Mahmud Magaji, SAN, General Minimah & 2 Others, are arguing that the audit committee on alleged misappropriation of procurement of military hardware, “only referred the case to the 2nd defendant (EFCC) for further investigation and not to proceed to file criminal charges against the plaintiffs.”
The Generals are insisting that they are still subject to Service law, that is, the Armed Forces Act and that, if any military officer under the Service law of the Nigerian Army commits an offence, it is reported in form of a charge to the Commanding Officer of the accused person for investigation and trial, if necessary.
“That Nigeria Army has its rules and statutory mechanisms for the administration of Criminal Justice.
“That military officer under the service law can only be prosecuted in the Court Martial.
“That the Court Martial is a special court specifically made for prosecution of persons in the Nigerian Armed forces.”
The plaintiffs contended too, that EFCC does not have powers to arraign them “with respect to offences allegedly committed in the course of their official duties,” insisting that the charge against them “is unknown to law.
“That the 2nd defendant (EFCC) is bent on subjecting the plaintiffs to criminal prosecution regardless of the extant statutory provisions that have stipulated the mode of prosecuting military officers.”
The court gave all the parties 21 days to file their pleadings.
But it is the fact that EFCC, knowing that there is a court order barring it from arraigning General Minimah and the two others and still went ahead to do so that makes their adherence to rule of law suspect. A judgment to this effect was delivered on December 6, 2020 by Justice I. E. Ekwo of Federal High Court in suit number FHC/ABJ/CS/1595/2020 between Lt Gen K.T.J. Minimah (rtd), Maj Gen A. O. Adetayo and Brig. Gen R. I. Odi as plantiffs/applicants and Attorney General of the Federation and Minister of Justice and Economic and Financial Crimes Commission (EFCC) as defendants/respondents.
They had, through the ex-parte dated and filed on December 3, 2020 sought an order of interim injunction restraining first and second defendants/respondents, their agents, privies, assigns, servants however so called from charging, arranging, and or prosecuting the plaintiffs for any alleged offences or misconduct pending the hearing and determination of the Motion on Notice.
Alternately an order directing all parties to the suit to maintain status quo ante bellum, pending the hearing and determination of the Motion on Notice.
Ruling, Justice Ekwo ordered that all parties in the suit to maintain status quo ante bellum, pending the hearing and final determination of the Motion on Notice. According to the Judge, the Plaintiffs/Applicants are hereby ordered to serve the Defendants/Respondents with all processes in this matter within 2 days of this Order while the case was adjourned to December 17, 2020 for Motion on Notice.
Now, the big question: Why would EFCC not obey the above court order? What is the rush to leak its case arraigning the same people the court barred them from doing? Why couldn’t the EFCC wait for the case challenging the competence of a civil court to try the senior Army officers for their activities while in service to come to an end or go to the Court of Appeal to vacate the order of the High Court?
The judgment in this case, whichever way it goes, is novel and could have enriching contributions to Nigeria’s jurisprudence. Or, is the EFCC dancing to the tunes of those who are afraid of General Minimah and are looking for a way to get at him without coming personally or frontally? Or, is the commission displaying its well-known penchant for playing to the gallery through media trials? Of course, EFCC’s notoriety for media trial is well documented and has become a big cause of irritation to the populace.
In 2020, the Senate Committee on Anti-Corruption and Financial Crimes, headed by Senator Suleiman Kwari, urged the EFCC to stop media trials if it wants to achieve desired results, insisting that 90 per cent of investigations should be done before an arrest is effected. “Media hype must stop. If you want to be effective, forget the media, do the work and let your work speak for you,” the senator admonished the Commission.
Lately, activities of the EFCC, which was established to fight financial and economic crimes like advance fee fraud, money laundering, and terrorism financing, among others, have given cause to many States and individuals, who are victims of their media ambush and trials, to seek that they take them to trial instead of resorting to leaking select information just to tarnish their names and image.
These might have been the modus operandi of EFCC in its early years. But it must face the reality that latching on to pent-up emotions from the Nigerian public which has been disappointed in many leaders, would not give the EFCC the respect and attention it desires. What it needs is diligent investigations and prosecution and winning cases through the courts.
What is clear is that the current suit by EFCC against General Minimah and the two other Generals is preemptive as their own suit against the anti-graft body was already slated for hearing on December 9. And the EFCC suit, as usual, was leaked on the eve of the court hearing to determine the competence of civil courts to try military personnel.
The EFCC’s pre-emptive strike casts doubt on its genuine intentions as far the Minimah & Co case is concerned. Apart from robbing the nation the benefit of robust legal debate and decisions, it has once again gone to show that the anti-graft agency is simply engaging in damaging any of the people they zero in on, an action that bothers on more of character assassination. It is still baffling why EFCC couldn’t wait for the General Minimah suit to be decided before it embarks on any other action, as is required in a proper judicial process. Or is there anything they have to fear from the retired Chief of Army Staff who served Nigeria meritoriously?
▪︎Onuorah wrote from Abuja