The Landmark Judgment And Atiku's Political Future

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.