The Landmark
Judgment And Atiku's Political Future
By
Ladi Ibrahim
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November 30, 2006
Vice President
Atiku Abubakar appeared the major winner in a Lagos State High Court ruling
dismissing the report of the Administrative Panel of Enquiry into the Petroleum
Training Development Fund (PTDF) which had also indicted former presidential
confidante and friend, Otunba Oyewole Fasawe. If the ruling stands, the Vice
President could legally contest next year’s presidential election which
President Olusegun Obasanjo from whom he is estranged had strenuously sought to
stop him. In a case brought by Fasawe against the Economic and Financial Crimes
Commission (EFCC) whose report formed the basis of the indictment of the Vice
President and Fasawe, Justice Inumidun Akande said the work of the panel set up
by President Obasanjo and headed by Attorney-General and Minister of Justice,
Chief Bayo Ojo amounted to an infringement of the powers of the judiciary and
the principle of separation of powers. It said the panel’s report amounted to a
gross abuse of executive powers.
The administrative
panel report which was immediately gazetted indicted the vice president who
suspected that it was a ploy to stop him from contesting the presidential
election and then went to court to challenge its validity. The ruling by Lagos
court appeared to have dealt a serious blow to the attempts to stop the Vice
President from contesting the election. The EFCC also received some hard knocks
as the judge ordered that it should stop harassing, arresting or detaining.
N5million cost was awarded to Fasawe. Justice Akande in the ruling dug into the
stature books, emphasizing the roles, duties and the laws governing EFCC which
she said the body had grossly violated.
Fasawe’s travails
began on September 29, 2005 when he was arrested and taken to Abuja. He was
incarcerated and detained until December 17, 2005. He was accused of obtaining
some banking facilities from Trans-International, Ibadan without sufficient
collateral. On June 10, 2006, Fasawe was again arrested by the EFCC and taken to
the police headquarters in Abuja where he was detained. He was allowed some
fresh air on July 17, 2006, but was again arrested on August 23, 2006 at his
residence in Lagos with an order that he should be locked up at SSS office at
Shangisha. This time, he was accused of illegally using funds from the Petroleum
Technology Development Trust Funds (PTDF). His companies Netlink Digital
Television and Mofas Shipping were also indicted. The administrative panel of
inquiry set up President Olusegun Obasanjo and headed by Attorney-General of the
Federation; Chief Bayo Ojo, on September 5, 2006 indicted Otunba Fasawe and
accused him of embezzling and mismanaging PTDF funds, and said he should be
prosecuted. The report was subsequently ratified by the Federal Executive
Council meeting presided over by President Obasanjo on September 6, 2006.
Protesting his
indictment, Fasawe went to the Lagos High Court seeking redress, and urged the
court to order the EFCC to stop arresting him and to release his cars and title
documents. He also asked for N500million as exemplary and aggravated damages.
Justice Akande
noted that the action of EFCC in arresting and detaining Otunba Fasawe for
several days was grossly unconstitutional as the body was only saddled with the
responsibility of arresting and not detaining accused persons. “The chairman of
the EFCC has no statutory power under the EFCC Act 2004 to submit a report to
the president of Nigeria. This makes the act of his a null act. The president
has no statutory power under the EFCC Act to receive the report from EFCC”.
According to
Justice Akande, the EFCC showed that it was dependent and partial by submitting
its report to the president, adding that the action of both the president and
the EFCC breached the provision of section 36 of the constitution of Nigeria.
The judge also tongue-lashed the president together with his chief law officer,
Chief Bayo Ojo and chief security officer, Sunday Ehindero for usurping the role
of the judiciary, an action which she emphasized contravenes the principles of
separation of powers. According to her, “the president has probative value under
the EFCC Act to receive reports from the EFCC. EFCC Act does not include power
to prepare reports and submit same to the president. In other words, EFCC only
has the power to investigate and charge whosoever to the High Court. So the
submission of the report to the president instead of filing a charge at the High
Court against the applicant wherein amounts to usurpation of power of the
judiciary which has power to try and convict any person found to have committed
any offence”.
Justice Akande
pointed out that since it was the duty of the court to guard the constitutional
rights of citizen, the court must never uphold legislations which derogate from
the constitutional rights of the citizens. Hence, “the court will not allow any
departure from the procedure. It is my view that preparation of the report and
its submission to the president instead of filing charges for prosecution
including its investigation is a complete departure from the prescribed
statutory procedure. It therefore makes the report ultra vires”. Furthermore,
the act of the president in setting up an administrative panel headed by
Attorney-General and the act of Attorney-general submitting report to the
president amounted to the erosion of judicial powers by the executive arm of
government which is grossly unconstitutional. If they are allowed to get away
with it judicial powers will certainly be eroded. There is no doubt that the
reports can best be described as a gross abuse of executive powers under the
separation of powers”
Subsequently , the
judge held that Fasawe was never invited to defend the allegations made against
him before the panel submitted its report to the president and ruled as follows,
one, an order setting aside the EFCC’s order titled “alleged conspiracy,
fraudulent conversion of fund, corrupt practices and money laundering” dated
August 24, 2006. two, an order setting aside the report of the administrative
panel of inquiry headed by Chief Bayo Ojo dated September 5, 2006 and titled
“the administrative panel of inquiry on the EFCC investigation report dated
August 24, 2006 of alleged conspiracy, fraudulent conversion of funds, corrupt
practices and money laundering by some public officers and other persons,”
together with any other recommendations/approval now contained in the Federal
Government gazette dated September 6, 2006. three, an order of perpetual
injunction restraining the respondents from further arresting, detaining,
harassing or threatening the applicant and carrying out the recommendations
contained in EFCC’S report dated August 24, 2006 and the report of the
administrative panel of inquiry headed by the Attorney-General dated September
5, 2006. Four, an order compelling the EFCC to release Fasawe’s international
passport, Peugeot 607 salon car with registration number AG 757 WWW and title
documents of applicant’s sureties.
Justice Akande went
on to award the sum of N5million against respondents jointly and severally for
aggravated damages as well as a declaration that the indictment of the applicant
by EFCC and panel of inquiry headed by Attorney-General is unconstitutional,
illegal and in violation of applicant’s right to fair hearing as guaranteed by
section 36 of the 1999 constitution of the Federal Republic of Nigeria.
This has once again
brought to the fore the fact the judiciary is still the last bastion of hope for
the masses, Justice Akande has demonstrated an uncommon courage and
forerightness in delivering such a landmark judgment that is predicated on the
rule of law, justice, constitutionalism and the truth. It will also be recalled
that, some years back under the military jackboot, Justice Dolapo Akinsanya also
of the Lagos State High Court equally delivered a milestone judgment, which she
aptly ruled that the Interim National Government was illegal. There is no doubt
whatsoever that, these justices will occupy a place of pride in Nigeria’s
history. This means that Nigeria Still has committed, reasonable, truthful and
incorruptible judges that the country can also count on, in times of need.
Again, vice president Atiku Abubakar can therefore contest for the 2007
presidency without any inhibition, and the bottom line in all this is that, no
matter how long lies prevails, the truth will be revealed at the end of the day.
