In two years under Ibrahim Magu’s watch, the Economic and Financial Crimes Commission (EFCC) has recovered huge sums of money and properties. It is prosecuting many politically-exposed persons for alleged corruption. Yet, the Senate has refused to confirm him as EFCC chairman. What is the matter? How long can he continue as acting chairman following a recent court judgment on his status? ROBERT EGBE asks.
The woman arrived at the building carrying big bags. She looked haggard, out of place in the luxury environment.
There were two swimming pools on the property, a health and fitness centre, sauna, massage pavilion, squash court, club house, video door entry telephone, Closed Circuit Television (CCTV), and 24-hour security.
In 2011, it won the International Residential Award for the Best Residential Property Interior in Africa. The price for an apartment in the high-rise began at $120,000 per annum.
There was no way the woman could be a tenant, they thought. Perhaps she had missed her way. But they watched in surprise as the guards let her in.
She walked with confidence to the lobby, rode the elevator to the seventh floor, stepped across the landing to Flat 7B, unlocked the armoured door and went in. About two hours later, she emerged, rode the elevator to the ground floor and walked out of the premises. She had to be a domestic help to the occupant of the flat, they thought. The woman repeated the visit to Flat 7B, Osborne Towers, 16, Osborne Road, Ikoyi, Lagos on several occasions.
Last April 12, when some Economic and Financial Crimes Commission (EFCC) operatives finally completed their surveillance of the building and swooped on flat 7B, they made an incredible haul: stacks and stacks of mint-fresh $100 bills, $43,449,947 (about N13 billion). There were also N23,218,000 and £27,800 (about N10.6 million) cash.
In the words of columnist and journalism professor, Olatunji Dare, it was “without question the greatest fortune any person or institution ever chanced upon since Shell Darcy struck oil in Nigeria in Oloibiri, in present-day Bayelsa State, in 1956.”
The recovery of this and other huge cash and property has been the EFCC’s trademark since November 9, 2015 when President Muhammadu Buhari appointed Mr Ibrahim Magu as Acting Chairman.
Achievements
According to a 2016 Federal Government report, between May 2015 and May 2016, the EFCC recovered N78.3 billion, $185,119, 584.61; 3,508,355.46 pounds, and 11,250 Euros.
Funds recovered under interim forfeiture included N126.6 billion, $9,090,243,920.15; 2,484,441.55 pounds and 303,399.17 Euros.
Funds awaiting return from foreign jurisdictions included $321,316,726.1; 6,900,000 pounds and 11,826.11 Euros.
Non-cash recoveries include 22 farm lands, 182 completed buildings, and five maritime vessels, among others.
On October 25, 2016, Magu said the EFCC had recovered more funds in his tenure than since its establishment in 2003.
He spoke at the commission’s headquarters while hosting a team of participants of the Pakistani National School of Policy (NSP).
Last Thursday, Magu revealed that in 2017, the EFCC recovered N473 billion, $98,258,124.97, £294,851.82, 7,247,363.75 Euro, 443,400 Dirham and 70,500 Rand.
According to him, the commission succeeded in securing the forfeiture of N32 billion and $5 million recovered from former Petroleum Resources Minister, Mrs Diezani Allison-Madueke, and N449 million discovered at Legico Plaza on Victoria Island, Lagos, among others.
The commission also secured the forfeiture of $153 million, N23.4 billion, $5 million as well as $40 million (the naira equivalent is N9.08 billion) allegedly belonging to Allison-Madueke, among others.
This is aside several properties, including 56 houses seized from Allison-Madueke.
Success in loot recovery has also been followed by success in the courts. Last June, the agency said it had secured 340 convictions for various offences.
However, Magu has often been criticised for the EFCC’s failure to secure the conviction of high-profile or politically-exposed persons.
The ‘General’
For those close to him, Magu’s appointment to head the agency was no surprise. They consider him a diligent, strict, incorruptible police officer, fashioned in the image of his former boss and pioneer EFCC chairman Nuhu Ribadu.
Ribadu had such faith in Magu that he entrusted him with the prosecution of several high-profile suspects, including current Ekiti State Governor Ayodele Fayose, and the investigation of former Plateau State Governor Joshua Dariye.
Magu also investigated former Nasarawa State Governor Abdullahi Adamu and Korean Yo Jim for the Farin Ruwa Hydro Electric Dam which became a white elephant project.
He charged former Sokoto State Governor Attahiru Baffarawa on the alleged diversion of public funds, and similarly spearheaded the case against Boni Haruna, the former governor of Adamawa State.
One of his most famous cases has been the prosecution of and securing a subsequent jail term for his boss, Inspector-General of Police (IGP) Tafa Balogun.
Another equally high-profile case was that of Prince Abubakar Audu, the then-governor of Kogi State, who was charged with diverting N10 billion to purchase real estate assets abroad.
All these cases and Magu’s famed no-nonsense mien earned him the appellation “the General” from his colleagues and subordinates at the anti-graft agency.
‘Most effective govt agency’
Approval for Magu’s work at the EFCC has come from far and wide.
A survey conducted by the United Nations Office on Drugs and Crime (UNODC) indicated that as far as Nigerians are concerned, the EFCC remains the most-effective government agency in the country.
The report of the survey, which was published in the UNODC’s July 2017 publication, titled: Corruption in Nigeria. Bribery: Public Experience and Response, was based on data collated in a survey of 33,067 households on corruption conducted in the 36 states and FCT.
In the same month, an opinion poll conducted by the United Kingdom-based Global Peace Movement International revealed Magu got endorsements from respondents in 25 countries.
According to the report, the EFCC chairman secured more than 96 per cent endorsements in the United States, United Kingdom, France, Germany, Russia, Canada, China and Belgium.
Last June 8, in recognition of the EFCC’s work, Magu was named the vice chairman of the heads of anti-corruption agencies in Commonwealth Africa.
The agency has also received endorsement from foreign governments and anti-graft organisations, including Interpol, which recommended the EFCC as a model for the African Continent in the anti-corruption war.
Rejection by the Senate
Magu’s nomination as EFCC chairman has twice been rejected by the Senate, sparking a debate about the legality or otherwise of his status.
Last March 15, the Senate rejected Magu based on an unsavoury report on him by the Department of State Service (DSS).
The rejection was the second, after the first in December 2016, for the same reason of security.
DSS reports
In the DSS report, Magu was accused of living in a N40 million mansion paid for by one Umar Mohammed, a retired air commodore, who was suspected of being corrupt.
He was also accused of illegally holding onto sensitive EFCC documents and of having “a penchant for air travels” in private jet belonging to Mr. Umar, among others.
In his response to the Senate, Magu admitted official documents relating to cases under investigation were found in his private home when raided “on the order of Farida Waziri when she succeeded Mallam Nuhu Ribadu as chairman of the EFCC.”
But, he said at the time, he had not formally handed over to Umar Sanda, his successor, as head of Economic Governance Unit, and that carrying out his duty at the time was impossible without working from home.
Following the raid on his home, Magu was suspended without pay for 20 months during which the police investigated the matter.
“In the end, I was reprimanded, recalled and promoted to Assistant Commissioner of Police.
“Some of us that worked closely with Ribadu were victimised after his exit. And my ordeal was orchestrated as punishment for being the chief investigative officer for most of the high profile cases involving politically exposed persons some of whom became very influential in government at the time,” Magu responded.
On DSS’ claim on Magu’s residence, he said: “The entire cost for both two-year rent and the furnishing of the house is N39.628 million.
“Details of the transaction are contained in the contract award letter and payment schedule which are attached to this letter.”
Magu denied having a “penchant for air travels” in private jet belonging to Mr. Umar, but admitted he flew the said aircraft on two occasions: one, offer of ride from Kano to Abuja after an official assignment with two EFCC directors; two, when he was traveling to Maiduguri to see his sick mother.
“These, for me, were harmless gesture as we were both members of the presidential investigative committee on arms procurement. At the time I had no knowledge that he was under investigation for any alleged crimes,” he said.
He also challenged the DSS to expose any EFCC operative “working closely with me” who is found to have indulged in unethical practices or living beyond legitimate means.
Who could Magu’s confirmation hurt?
A significant number of Senators have been investigated or are standing trial on account of investigations conducted and orchestrated by EFCC under Magus leadership.
According to legal expert, Wahab Shittu, they include former Akwa Ibom State Senator Godswill Akpabio was investigated for alleged abuse of office, diversion of public funds and alleged embezzlement.
Former Plateau State Governor, Senator Jonah Jang, is under investigation over allegations that he allegedly awarded contracts running into several billions of naira without due process. He was also alleged to have diverted N2 billion SME-CBN loan.
Senator Aliyu Wamako is under probe for alleged abuse of office, misappropriation of public funds and money laundering while serving as Governor of Sokoto State.
Senator Stella Oduah is also under investigation in respect of contract awarded by the Ministry of Aviation under her watch to I-Sec Securities Nigeria Ltd for N9.4 billion, as well as alleged diversion of money to various companies where the Senator has interest.
Senator Theodore A. Orji and others are under investigation for alleged misappropriation of N10 billion loan from First Bank Plc for rural infrastructural development. The former Abia Governor is also being probed for alleged misappropriation of N2 billion SME-CBN loan for rural dwellers since 2015.
Senator Rabiu Musa Kwankwaso is standing trial (since 2013) for alleged abuse of office and misappropriation of public funds.
Senator Danjuma Goje is also standing trial with others and at the Federal High Court in Jos and for alleged corruption.
Senate President Bukola Saraki is standing trial at the Code of Conduct Tribunal in respect of allegations in which EFCC played a significant role during investigations.
However, the Lagos lawyer and University of Lagos (UNILAG) law teacher said he was not implying that the Senators under investigation or standing trial are culpable.
He noted that the presumption of innocence of every suspect is guaranteed by the constitution, adding that it is for the court to determine the guilt or innocence of anyone standing trial in any criminal proceedings.
Shittu said it would be difficult for the Senate, under its current President Bukola Saraki, who has been a subject of EFCC investigation, to clear Magu.
To him, such Senators should not be part of Magu’s screening.
How long can Magu act?
Following Magu’s rejection, questions have been raised about how long he can lead the EFCC in an acting capacity?
The EFCC Establishment Act 2004 is silent on the appointment of the chairman in acting capacity.
It expressly provides that the chairman has to be confirmed by the Senate.
Section 2(3) of the EFCC Establishment Act 2004 provides: “Chairman and members of the Commission other than ex-officio members shall be appointed by the President and appointment shall be subject to the confirmation of the Senate.
Lagos lawyer, Sylva Ogwemoh (SAN), confirmed that there is no provision in the EFCC Act for the office of an acting Chairman as the head of the Commission
Ogwemoh said: “The power of the President under the EFCC (Establishment) Act, to appoint a Chairman for the EFCC is not absolute. The President’s appointment is subject to confirmation by the Senate.
“What this means in effect is that the President cannot under any circumstance act alone in the appointment of a Chairman for the EFCC, without the confirmation of the Senate, and where the Senate has refused confirmation as in the case of Magu, that matter ends there.
“This is because there is no provision in the EFCC Act for the office of an acting Chairman as the head of the Commission. The office created by the Act is that of a Chairman who shall be the Chief Executive and Accounting Officer of the Commission.”
What Section 171 (1) says
Other lawyers, relying on Section 171 of the Constitution, insist that there is no time limit to Magu’s stay as Acting EFCC Chairman.
Section 171 (1) says: “Power to appoint persons to hold or act in the offices to which this section applies and to remove persons so appointed from any such office shall vest in the President.
“The offices to which this section applies are, namely, (a) Secretary to the Government of the Federation; (b)Head of the Civil Service of the Federation; (c)Ambassador, High Commissioner or other Principal Representative of Nigeria abroad; (d) Permanent Secretary in any Ministry or Head of any Extra-Ministerial Department of the Federation howsoever designated; and (e) any office on the personal staff of the President.”
Rights activist Femi Falana (SAN) said the President is empowered by the Constitution to appoint Magu as acting EFCC chairman for as long as possible.
Falana said according to Section 171 of the Constitution, the President does not need to ask for confirmation of some appointments.
He explained that the Senate could only confirm ambassadors and heads of foreign mission as provided for in section 171 subsection 2 of the Constitution.
“Section 171 of the Constitution has vested the power in the president to appoint any person to that office or act in that office and the duration is not specified.
“Of all the positions listed there, positions to be occupied by public officers without any reference to the senate – secretary to the government of the federation, permanent secretaries, head of service and heads of extra-ministerial departments like the EFCC and the ICPC.
“With profound respect, in sending the letter to the senate for confirmation, the president relied on section 2(3) of the EFCC Act but that section has to be read subject to the constitution.
“So if you do that, Section 171 takes precedence over Section 2(3) of the EFCC Act. So, does the president need to ask for confirmation? No.”
A similar view was expressed human rights lawyer Festus Keyamo (SAN), who noted that the law does not prescribe a time limit for Magu to remain in an acting capacity.
Keyamo said: “The fact that the law has not circumscribed the amount of time or the time period that someone can act as the head of an agency, it would mean, therefore, that I see no legal problem at all in Magu continuing to act as the EFCC chairman. There is no legal impediment at all.”
Implications of Justice Tsoho’s judgment
On January 15, the Federal High Court, Abuja held that the Senate acted within the law when it rejected President Buhari’s nomination of Magu as EFCC chairman.
Justice John Tsoho gave the ruling in a suit filed by a lawyer, Oluwatosin Ojaomo.
Ojaomo urged the court to determine whether the Senate had powers to reject the President’s candidate for the position of EFCC chairman; and whether the Senate was not bound by the provisions of Section 2(3) of the EFCC Act to confirm any candidate nominated by the president for the said position.
The judge held that the Senate was not a rubber stamp to affirm any decision of the presidency, adding that the lawmakers had powers to either affirm or reject a nominee for EFCC chairmanship.
However, the court struck out the suit after noting that the applicant had no “locus standi” to file the application in the first instance. Locus standi is the right to bring an action or to appear in a court.
Following the ruling, the Senate through its spokesman, Sabi Abdullahi, urged the President to sack Magu.
He said: “We are pleased with this judgment and salute the judiciary for rising to the occasion. With this, the Senate expects the executive to be guided by the court decision and do the needful by forwarding name of any credible Nigerian for the EFCC office.
‘’There is nothing personal in the whole thing. The court has ruled and all parties concerned must obey.”
He advised President Buhari to pick another credible candidate “from the 180 million Nigerians”.
Similarly, Nigerian Bar Association (NBA) Second Vice President Monday Ubani said the Federal Government had no choice but to obey Justice Tsoho’s ruling.
He said unless the executive secures a contrary judgment from the appellate courts, the position of the law is that the EFCC chairman must be confirmed by the Senate.
Ubani said: “The position, therefore, is that the law of the land with regards to confirmation of the chairman of EFCC is that the Senate must be involved in the confirmation of the position of the Chairman of that body as prescribed by the Act creating it, notwithstanding the provisions of the Constitution which was enacted earlier than the EFCC Act.
“It may well have been that the Constitution never contemplated the provisions of the EFCC Act that makes such confirmation compulsory,” he stated.
But, Presidential Advisory Committee Against Corruption (PACAC) Chairman Prof Itse Sagay (SAN) disagreed with the senate.
Sagay said: “I think the Senate spokesman totally went overboard about the implications of the judgment, because the main thing was that the application was struck out because the applicant had no locus standi. That is the main thing, that the action was struck out.
“But the judge then made a statement which we call Obiter Dictum, that is a statement not directly related to the reason for the judgment.
“In fact, you can say it’s an extraneous statement, having no relationship with the basis of the judgment in a case. Usually it is ignored as a source of law.
“It carries no weight except where the Supreme Court engages in Obiter Dicta that it is taken seriously, not in a High Court.
“So, what the judge said is that from the provisions of the EFCC Act, before the Chairman is made substantive, it has to get the approval of Senate.
“Now, that is relying on the EFCC Act, but there is a superior law to the EFCC Act which was not discussed and that is the Constitution.
“I believe Section 171 of the Constitution gives the President direct authority to appoint the heads of these agencies.
“It wasn’t brought before the judge and if it had been brought before him, I doubt if he would have even made the statement he did.
“So, he was very specific in his analysis, he was referring to the EFCC Act, but the Constitution, of course, is superior to the EFCC Act. In conclusion, it has no impact on Mr Magu’s tenure.”
According to Falana the other part of the judgment which bordered on “locus standi” was held higher by the court than its opinion on the Senate’s position about Magu.
Falana said: “The case of the plaintiff was struck out by the Federal High Court for want of locus standi.
“It is trite law that once a case is dismissed or struck out by a court for any reason whatsoever, it cannot be relied upon to assert any right or exercise any power.”
Why Magu?
But, considering all the controversy surrounding his status at the EFCC, why is the Presidency still so keen on Magu? Why doesn’t President Buhari just appoint someone else?
Sagay said: “They are sure of his integrity. They are sure he is unbribable. They are sure of his courage. They are sure he cannot be intimidated. They are sure he is committed. They are sure he is ready to make sacrifices.
“When you have a man like Magu, it’s exceptional, that’s the point. So, we are not going to listen to that rubbish of getting rid of who we are sure of, and then start looking for some other person.”
