Looters’ trial: Is Lagos leading a mutiny against FG?

LANRE ADEWOLE seeks all angles to the Lagos anti-graft law and the vexed issues surrounding it.

On Monday, April 19, 2021, Lagos State Governor, Babajide Sanwoolu, signed into law, the state anti-corruption law, joining a motley of states already operating such law through their anti-corruption commissions or agencies with little or no noise, mainly due to the non-interference of their work, with the statutory functions and responsibilities of federal government-controlled anti-graft bodies like the Economic and Financial Crimes Commission, Independent Corrupt Practices and Other Related Offences Commission, the Code of Conduct Bureau and expectedly, including the newest in sight, the Proceeds of Crime Recovery and Management Agency.

Attorney General of the Federation and Minister of Justice, Abubakar Malami, a Senior Advocate of Nigeria, while unveiling the proposed body said its central objective would be better management of properties and proceeds of crime forfeited to the Federal Government, a function EFCC was undertaking before the travails of the commission’s erstwhile chairman, Ibrahim Magu, brought to the fore, allegations of mismanagement of such forfeited assets.

Malami’s dream of a better coordinated anti-corruption war which he promised would undergo a retooling, following the appointment of youthful Andulrasheed Bawa as the new EFCC chair, is now in danger of being bifurcated if certain controversial provisions of the Lagos State law stand.

Though spokesperson to the governor had claimed in a statement heralding the new Act that the state commission would complement similar existing departments in the police and Federal Government, including EFCC, what has come to be seen as an ouster clause in the Act is raising dust, amid renewed clamour by a couple of other states like Bauchi, to follow in the footstep of Lagos.

Apart from empowering its new anti-corruption agency to demand and retrieve from EFCC and others, case files of state actors from Lagos under investigation, the commission is also skewed to be practically absolute in authority and execution, save for its in-built inferiority to the state House of Assembly and the state Executive Council, the two bodies which created it.

Expectedly, the ouster provision has been generating a lot of concern as it is being primarily read as a move to shield Sanwoolu’s predecessors-in-office from federal probe.

Already, three former governors of the state, Senator Bola Tinubu, Babatunde Fashola and Akinwunmi Ambode are being investigated by the Economic and Financial Crimes Commission, so also, is the incumbent Speaker of the state assembly, Right Honourable Mudashiru Obasa, for alleged fraud.

Obasa’s predecessor-in-office, Adeyemi Ikuforiji, is also being prosecuted by the anti-graft commission, while many local government chairmen in the state have been guests of EFCC at different times over alleged mismanagement of public funds.

Also on record, Tinubu, was once prosecuted by the Code of Conduct Tribunal, for alleged operation of foreign accounts as governor, contrary to the law of the land, but was let off the hook, by the Tribunal.

Apart from the most noisome of the controversial insertions in the Lagos law, there are others that have also been giving rights activists concerns.

Some of the provisions considered controversial in the new law include, barring the new anti-corruption commission from investigating cases before the state assembly and state executive council, being termed as state control.

The power granted the commission to investigate income with doubtful sources, is also seen as arbitrary and open to abuse, by state officials.

Though the commission’s power is being limited in relation to the authority of the Governor as the head of the state executive council and that of the legislature, another provision expressly states that it can’t be controlled by any authority.

 

For goose, for gander?

There are also political worries that the same law, which can be used to shield Lagos state-actors from federal probe, can also be used against unwanted former public officials by those currently controlling power levers in the state. Specific mention is being made of former Governors Babatunde Fashola and Akinwunmi Ambode and their no-love lost relationship with the power centres in the state; Tinubu’s Bourdillion and Sanwoolu’s Alausa government seat.

It is being rumoured that future political aspirations of both Fashola, the incumbent Minister of Works and Housing and Ambode, who is trying to stage a return to relevance without Tinubu, could be jeopardised using the law, by convicting them of alleged corrupt practices, while in office.

Though the 1999 Constitution as currently run precludes ex-convicts from seeking elective office in Nigeria, an amendment has been proposed to allow certain category of convicted former public office holders to seek office again.

The exceptions coming into it now are; “where convict is under a death sentence, where less than 10 years before the date of election, he has been convicted and sentenced for an offence involving “dishonesty” and if he is found guilty of contravening the Code of conduct for public officers.”

Though the alterations are to affect the combination of Sections 137, 182, 66, 107 of the 1999 Constitution, the Lagos law could still be an effective weapon against opposition elements, who once occupied public offices, if convicted for “dishonesty” or contravention of public office code.

Fashola has been mentioned in the 2023 presidential race projection, in which his former boss, now political foe, Senator Bola Tinubu, is regarded as a front-runner. Ambode was primarily denied second term in office by Asiwaju political group, with the incumbent Sanwo-Olu, being, the main beneficiary of the political battle between the erstwhile buddies. The one-term governor, is seeking a return to relevance through Abuja, the political capital of Nigeria and Lagos, under Tinubu, may be compelled to block his planned reemergence from political wilderness.

 

Deafening silence from Abuja?

Whatever is playing out in Lagos is already catching the attention of the Federal Government, whose signature anti-corruption project could land in further disarray if the Lagos law stays. Apart from being forced to hand over major alleged corruption cases to the state commission, the domino effect on other states could simply render the federal anti-corruption agencies almost useless, since nearly all the states, would want to seek “political” cover under such controversial ouster provisions, including those who are already operating anti-corruption laws, considered to be tempered, moderate and complementary to what EFCC and others, are doing.

In an exclusive conversation, Malami, through his Special Assistant on Media and Public Relations, Dr Umar Jibril Gwandu, disclosed that the Lagos law was under scrutiny by the Ministry of Justice, signaling a possible repeat of the Supreme Court battle between Ondo State under now late Adebayo Adefarati and Olusegun Obasanjo-led Federal Government, between 2001 and 2002 over the constitutionality of ICPC, probing state spending. Ondo lost.

According to Gwandu, “We are studying the document. We will come out with our position soon.”

 

NBA confab summons Lagos Speaker

In the NBA, there are three Sections to which the over 140,000 members of the Association belong. They are Section on Legal Practice, Section on Business Law and Section on Public Interest and Development Law, popularly known as SPIDEL. The activities of the NBA are structured through these Sections, with SPIDEL being the most popular, with members of the public, due to its public-orientation.

Incidentally, as the controversy over the Lagos anti-graft set-up, rages, SPIDEL is preparing for its conference in Ibadan, the capital of Oyo State, which in itself, has also set up an anti-graft agency, similar to what Lagos did.  However, while Oyo’s, is considered is a fine example of workable “camaraderie” between state commission and federal agencies, probing and prosecuting alleged financial crimes, Lagos agency is being seen as a hatchet job even by many lawyers. Friday afternoon, Sunday Tribune gathered that the Speaker of the Lagos State House of Assembly, Hon. Mudashiru Obasa, himself a lawyer, has been summoned by the conference to come and address the perceived lacuna in the passage of the Bill that transformed into the contentious anti-graft Act.

A former second Vice President  of the Association, Barrister Monday Onyekachi Ubani, a major participant at the conference, expected to run from May 23 to May 26, 2021, told Sunday Tribune that Obasa had been invited to come and explain the rationale behind the passage of the controversial law when there are federal agencies already in place, probing alleged corrupt practices. He said Obasa accepted the challenge.

Speakers already confirmed for the conference are leading rights lawyer, Mr Femi Falana, SAN, activist Aisha Yesufu, former Senator Dino Melaye, Governor Seyi Makinde of Oyo State, Governor Rotimi Akeredolu of Ondo State, former chairman of National Human Rights Commission, Professor Chidi Odinkalu, Senate Minority Leader, Enyinnaya Abaribe and Chief Mike Ozekhome, SAN. Vice President Yemi Osinbajo, is attending the conference.

When asked his opinion of the controversial Lagos law, Ubani said, “well, it is already passed into law and that is why we have invited the Speaker to come and explain the need for a state anti-corruption law when there are existing federal agencies doing the same thing Lagos is trying to do and this is a state where the state apparatus and political leadership are almost one. Are they saying they would be able to probe Tinubu if they take over his case file from EFCC, since EFCC is said to be probing him? That is why we have called on him to come and explain what they are actually doing and he has accepted to be at the conference.”

Oyo State anti-corruption law fashioned by Makinde’s administration is likely not attracting condemnation from stakeholders, primarily because it clearly did not position itself as an alternative to existing federal agencies.

A provision of the Oyo law says, “It gives power to the agency (anti-graft commission) to collaborate and synergise with any law enforcement agency within the state in questioning, investigating or interrogating any person whose conduct or affairs are under investigation and to partner with the federal anti-corruption agencies such as EFCC and ICPC in tracking corruption cases in the state and training the agency›s staff on anti-corruption related matters.»

Ozekhome, however, disagreed sharply with Ubani. He is of the opinion that the Lagos State law is valid and has ousted the jurisdiction of EFCC so to say. Punch first reported him as saying that corruption and crime are not on the exclusive legislative list and as such, the Lagos House of Assembly has more powers to create such law for the benefit of the state than the National Assembly, which created the EFCC and the ICPC.

Ozekhome further argued that since the House of Assembly was in charge of making laws regarding taxation, charges and finances of Lagos State, the Assembly also has superior powers regarding diversion of such funds.

He said, “It follows that anyone who commits a crime concerning such charges, fees or taxes is subject to the House of Assembly and that amounts to what is called an economic crime. It is therefore the House of Assembly that has the jurisdiction to deal with economic crime within its own jurisdiction, not the Federal Government through the National Assembly like a principal controlling its pupils.

“Therefore, the law made by the Lagos Assembly regarding financial crimes is a valid law in line with Section 4 of the constitution and the Second Schedule Part 1 and 2 of the exclusive and concurrent legislative list. There is nothing contrary to the EFCC law at the federal level.

“If the EFCC wants to enforce its Act, it should go to other states except Lagos because Lagos now has its own law. It is the same way the Federal High Court has rules guiding it.”

 

The Ondo challenge

In the early life of the running dispensation, a former Ondo governor, Adebayo Adefarati, had challenged the constitutionality of ICPC probing his state finances, arguing that only the state assembly which appropriated funds, could ask questions regarding the spending.

He dragged the administration of President Olusegun Obasanjo to the Supreme Court, insisting that true federalism would not allow for a federal agency interloping in the affairs of a sub-national entity like Ondo State.

Ondo’s argument came short at the apex court and the request to declare the ICPC Act illegal and unconstitutional was rejected.

The apex court also turned down the demand to have the power of the then-new body, limited, to federal officials and spending alone.

Other states were joined as co-defendants in the historic suit. Setting a precedent in Attorney General of Ondo State Vs Attorney General of the Federation and 36 Others (2002), the Supreme Court held that ICPC had a statutory duty to investigate allegations of corrupt practices made against any person or authority in Nigeria.

In Ondo State’s case, there was no creation of an alternative body, just a challenge to the perceived omnibus power of the ICPC.

The Lagos State law is going to present a new challenge to the judiciary in resolving the imminent confrontation with EFCC and ICPC, especially on the vexed issue of the Lagos law being primed to be retroactive.

 

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