Legal Nigeria

Abubakar Malami, AGF

When President Muhammadu Buhari conceived the idea of a Presidential Advisory Committee against Corruption (PACAC) in 2015, his intention was to have a body to advise his administration on the prosecution of the war against graft and the implementation of required reforms in Nigeria’s criminal justice system.

Consequently, the president found Professor Itse Sagay, a seasoned law teacher and an acclaimed civil rights activist as the suitable person to chair the body. Other members of the Committee, which was also expected to develop comprehensive interventions for achieving recommended reforms, were the late Prof. Femi Odekunle, a Professor of Criminology, Ahmadu Bello University; Dr. (Mrs) Benedicta Daudu, Associate Professor of International Law, University of Jos; Prof. E. Alemika, Professor of Sociology, University of Jos; Prof. Sadiq Radda, Professor of Criminology, Bayero University, Kano; Hadiza Bala Usman, a civil society activist, who was later appointed the Managing Director of the Nigerian Ports Authority (NPA) and Prof. Bolaji Owasanoye, who was in the Nigerian Institute of Advanced Legal Studies (NIALS) as the Executive Secretary of the Committee. Owasanoye has since been appointed to chair the Independent Corrupt Practices and other Related Offences Commission (ICPC).
In support of the government’s efforts, three international development partners, namely the Ford Foundation, MacArthur Foundation, and Open Society Foundation, established a $5million Anti-Corruption and Criminal Justice Reform Fund. The fund was to assist the implementation of key components of the Action Plan and the work of the Presidential Advisory Committee and was billed to be managed by Trust Africa, an international development Civil Society Organisation with programme presence in more than 25 African countries.

Whether the Committee has delivered on its mandate is now a subject of debate. Six years into the work of the Committee, its relevance has been put to question, following some of its position when it comes to the fight against graft and citizens rights.

Some Nigerians and indeed the attorney general of the federation, Abubakar Malami (SAN) have asked for the disbandment of the body, for allegedly overstaying its relevance. Malami was recently reported to have urged President Buhari to disband the Committee as he did with the Special Presidential Investigation Panel for the Recovery of Public Property (SPIP) formerly under the supervision of Okoi Obo­no-Obla on the ground that it is no longer relevant to the fight against corruption. But when asked if he has submitted any memo in respect of the call to the president on national television last week, Malami said he has not done so yet. When The Guardian sought to get details of the AGF’s view on the matter, his Senior Special Assistant on Media and Publicity, Dr Umar Gwandu said: “ It was a presidential committee established by the Presidency long before the appointment of Malami as the Attorney General of the Federation and Minister of Justice and his assumption into office in 2015. The fate of the existence or otherwise of the committee is the exclusive preserve of the Presidency regardless of whether it outlives its usefulness or not.”
However, prior to the call for the disbandment by the AGF, human rights activist, Chief Mike Ozekhome (SAN) had since 2017 called for the scrapping of the Committee. According to Ozekhome, the Body is irrelevant to the anti-corruption war. He told The Guardian that the Body has rather become a major cog in the wheel of progress of the fight against graft in Nigeria.

He said: “The AGF is not the original author of the proposition that PACAC should be scrapped. I am the original author that that body should be scrapped for being irrelevant to the anti-corruption war. If you Google, you will discover that as far back as 2017 when I defeated the Economic and Financial Crimes Commission (EFCC) in a matter after they seized my N75million professional fee duly paid to me by the then Governor Ayo Fayose of Ekiti state, I made the call. 

“I went to court against the EFCC to defroze the account. We argued the matter from February to April 2017 and I won the case. When I came out of the court, I prostrated and thanked God for the victory. And I made a statement that PACAC has since outlived its usefulness; that this was a Committee that was set up to serve as a think-tank for the anti-corruption war, to generate ideas, to retool the instruments of fighting corruption, but that the body and its leadership have become more political than the politicians.    
“They were not generating any ideas. They were descending into the fray of defending every action of the government of the day. PACAC, which is supposed to be an ideologically inclined body like the philosopher-king that should be seen but not heard, was so cacophonous in its noise-making, defending government positions even more than Lai Mohammed, Femi Adesina, and Garba Shehu. In fact, one of the PACAC members, who is now late, even said on one occasion that when people are accused of corruption, they should not even be tried at all, that they should be shot at the stakes.

“I could not believe my eyes because this was a man that we all rose to defend that he must be presumed innocent when the government of Sani Abacha manacled and shackled him with Gen. Oladipo Diya and wanted to kill him. PACAC defended Kemi Adeosun in her certificate saga. When Nigerians said she should go because there was evidence that she had lied concerning her NYSC certificate, PACAC leadership came out and defended her, that the president should not sack her, that she is one of the greatest assets of the government; that it was out of jealousy that people wanted the woman sacked when she was a damn good minister of finance.”

The senior lawyer recalled that PACAC supported and encouraged the removal of then acting chairman of the EFCC, Ibrahim Magu when he (Magu) called all lawyers “vultures and predators.” PACAC, he further recalled, also supported the government when it (government) said it was starting a policy of naming and shaming of persons suspected of having committed corruption, even when there are no evidence to prosecute the fellow. “PACAC said it was good so that that stigma would stick to such persons forever. PACAC was there when the EFCC would be interrogating suspects and the interrogation would be published verbatim the following day in a particular newspaper and would be rendered in a particular television owned by their friends. PACAC was there when the anti-corruption war was being fought selectively, instead of holistically. They were there defending all atrocities that were being committed against the people of this country. They defended the barging in, into the homes and offices of judicial officers in the wee hours of the morning,” he regretted.  
Reeling out the alleged “sins” of the Committee further, Ozekhome said: “The Committee defended all acts of illegalities and disobedience to court orders and breaches of citizen’s fundamental rights and rule of law. Such a body was actually an added problem to the baggage of problems this clueless and compass-less government is currently carrying. Rather than being a part of the solution, it actually became a very weighty major problem that was bringing down the anti-corruption war instead of raising it up. So, it should be scrapped immediately and consigned into the vehicle of historical oblivion. PACAC is a sad commentary on this country and it should be scrapped and buried in the same sad way it has buried the anti-corruption war in Nigeria.”

Also, activist lawyer, Dr Kayode Ajulo argued that PACAC is an adhoc administrative arrangement, in which its existence discounts constitutional creations. According to him, PACAC is unconstitutional and its existence impedes other duly constituted institutions and the work of anti-graft agencies saddled with the fight against corruption. Sentiments, he argued, cannot take the place of law no matter how idealistic it is, as the law is the law.

He said: “You cannot rule against the law, so you cannot rule with people’s whims and caprices by setting up an unknown body to the law in the quest of wanting to fight corruption. Violation of the law itself is corruption. Any action taken by the President before constituting PACAC must follow the law. The President could not have fought corruption with an Adhoc Committee like PACAC.
“Setting up the body without the requisite law is null and void.  Such action in itself is a ground for corruption. There is the need for immediate disbandment of PACAC, as I challenge Prof. Sagay to name what he had achieved since they were set up in the last five years. Their job is Adhoc. Any issue of criminality stops with the AGF, who is the chief legal officer of the federation and under whose office there is Solicitor-General of the federation, Director of Public Prosecution, and other offices and institutions to ensure the maintenance of law and order. What are the basis for the Adhoc Committee against corruption and they are there for five years perpetually,” he asked.

For the legal scholar, Dr Jerome Okoro, the call for the disbandment of PACAC has reopened the longstanding debate on building strong institutions, rather than strong men. Institutions, he noted, outlive men while strong institutions make a strong society by naturally impinging on the character and competence of men who drive the institution and men who are subject to its authority.

He said: “PACAC was set up as a presidential advisory body to guide the Federal Government on the anti-corruption fight. The AGF now calls for its disbandment on the alleged ground that it has outlived its usefulness, while the anti-corruption fight is still ongoing. At what point then did the Body lose its usefulness? Was it at a point where Prof. Sagay might have failed the expectations of somebody or some people? This is exactly a mix up of the essence of an institution and the scorecard of the men running its affairs.”

According to Okoro, whatever Nigerian’s perceive of the performance of the Committee does not detract from the usefulness of the institution. A vehicle, he argued, is not adjudged useless because the driver has lost or is perceived to have lost his skills or no longer drives excellently or satisfactorily. “Prof. Sagay can be assessed on his performance as the pilot of PACAC, but wherever the assessment settles him on the scale, does not determine the continued usefulness or otherwise of PACAC,” he reasoned.

But Darlington Onyekwere, Abuja-based lawyer, is of the view that PACAC is not unconstitutional. According to him, the AGF may have genuine reasons for his recommendation for the disbandment of the Committee, which is well within his powers as the chief law officer of the federation, it is left for the President to approve the recommendation if he finds merit in the reasons advanced by the AGF or reject it as only the President that set up the Committee can disband it.

“I do not subscribe to the view that PACAC is unconstitutional. Saying something is unconstitutional means that it is in violation of the Constitution. Something can be said to be unconstitutional if it is such that the Constitution forbids, prohibits, and/or is contrary to any of its provisions. It is conceded that PACAC is not provided for in the Constitution, but that does not ipso facto make the Committee unconstitutional as suggested in some quarters.

“No doubt, the President is empowered to set up Ad-hoc or interim Committees and Panels in appropriate circumstances, which of course by their nature cannot be expected to be provided for in the Constitution. Such Committees/Panels validly set up by the President, including PACAC, in exercise of Presidential powers are legal, except there is a violation of the Constitution or any other extant statute. Bearing in mind the mandate of PACAC and the circumstances under which it was set up, I do not agree that it is unconstitutional and/or illegal,” he argued.

Onyekwere recalled that Nigerian presidents had in the past set up other Committees/Panels, including the Presidential Committee to review the report of the Justice Ayo Salami–led Judicial panel of inquiry, Presidential Committee to study and address the expanded United States visa ban list, Presidential Committee on 2014 National Conference (under President Goodluck Jonathan), 2013 Presidential Committee on Dialogue and Peaceful Resolution of Security Challenges in the North which were all set up in the exercise of presidential powers.
The lawyer said: “I hold the view that there may actually be reasons to retain the PACAC. According to the State House official website, its mandate is to promote the reform agenda of the government on the anti-corruption effort and to advise the present administration in the prosecution of the war against corruption and implementation of reforms in Nigeria’s criminal justice system. Judging from its mandate, its duties do not conflict and/or overlap with the statutory functions of anti-corruption agencies like the EFCC and ICPC.  

“Majorly, the role of PACAC is advisory and to that extent, the Committee can be retained provided that there is a mechanism to ensure that it does not act outside its mandate.  This is more so as the constitution of PACAC does not appear to be in violation of the Constitution or any extant law. The fight against corruption is a serious collective fight and no effort or resources deployed, within the confines of the law, can be said to be too much in the advancement of this fight provided that all persons involved are guided by the rule of law. Bearing in mind the mandate of PACAC highlighted above and the circumstances under which the president set it up, I think it will not be out of place to retain it to function in line with a defined mandate.”

Certainly, the buck stops at the table of Mr president. Nigerians now await his decision on the recommendation of the AGF and that of other Nigerians and until he acts in consonance with such demands, the Committee remains to the chagrin of its detractors.

Source: Guardian Newspaper

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