By Ben Nwabueze
There is no doubt that Nuhu Ribadu displayed courage and fearlessness in the prosecution of the War Against Corruption, but the harm he, by his reckless subversions of the Constitution, did to the credibility of the EFCC as an agency of government and to that of the War Against Corruption far out-weighed, indeed almost neutralised, whatever good he accomplished by his display of courage and fearlessness. Besides, his display of courage and fearlessness is, as will be shown later below partial, insincere and false, and constituted state terrorism.
The details are too many and staggering, but it would suffice for present purposes to mention only a few. Nuhu Ribadu had turned the EFCC into an instrument for selective vendetta and witch-hunting, victimization and persecution to satisfy the spite and whims of himself and his master, former President Olusegun Obasanjo. And to accomplish that purpose, he subverted the constitutional limitations designed to keep in check the exercise of state power, and whose avowed purpose of safeguarding the legitimate interests of opponents of government. He is not exonerated because he acted under the orders of a superior, the President. He is likely to make himself amenable to be so used again whoever might be his master, or if he becomes the master himself.
Now, subversion of a country’s constitution for whatever purpose is bad enough in itself, but it becomes utterly condemnable when it is done knowingly and deliberately for a purpose as despicable as the persecution of a citizen by the wanton deprivation and repression of his rights and interests under the Constitution. Such was the nature of the subversion perpetrated by Nuhu Ribadu in the name of the war against corruption. The subversion was perpetrated in various ways and forms, viz
- The prosecution of Governors Joshua Dariye of Plateau State and Orji Uzor Kalu of Abia State by the EFCC before the Federal High Court (FHC) and the Code of Conduct Tribunal (CCT) for corruption in clear and deliberate violation of their immunity under section 308 of the Constitution. If there was a possible, if untenable, argument as to whether the immunity under section 308 covers the processes of, and proceedings before, the CCT, no doubt whatsoever exists that an incumbent President, Vice-President, Governor or Deputy Deputy Governor is immune from the processes and proceedings of a court, including the FHC. Paradoxically, President Obasanjo himself pleaded the immunity and got the FHC to dismiss on that ground, the action brought against him by Gani Fawehinmi for breach of the Code of Conduct: see Chief Gani Fawehinmi v. President of the Federal Republic of Nigeria (General Olusegun Obasanjo) & Ors, Suit No. FHC/ABJ/CS/283/2006, ruling delivered on 12 October 2006). The object of this obviously deliberate subversion of the Constitution was simply to secure the conviction and imprisonment of the two Governors as a way to get them removed from office because of their opposition to President Obasanjo. Happily the prosecution failed in both cases.
- The abortive attempt by the EFCC to get the Speaker of the Plateau State of House of Assembly, Simon Lalong, recalled by his constituency because he was considered by the EFCC as constituting an obstacle to Governor Dariye’s impeachment and removal from office is another case of a flagrant and deliberate subversion of the Constitution and the rights of Speaker Lalong under it. It was a move so thoroughly discredited by the object sought to be achieved by it, by the fraudulent means used and by its utter disregard of the constitutional provisions regulating and circumscribing the recall device – a wicked move motivated, not by the objectives of the war against corruption, but by the design of President Obasanjo’s personal vendetta to settle scores with Governor Dariye. The details are abominable. Happily, it too failed.
- Nuhu Ribadu’s subversions of the Constitution assumed perhaps the most pernicious form in the subversion of the provisions of the Constitution regulating the removal of a State Governor by impeachment. The forms such subversions took affected nearly all the aspects of the impeachment process, viz
(i) Deliberate non-compliance or interference with the procedural requirements for impeachment under section 188 of the Constitution. A most blatant case of such non-compliance or interference was the taking of members of the Bayelsa House of Assembly by the EFCC from the state capital, Yenagoa, to the Commission’s offices in Lagos to sign an impeachment notice prepared by it, which was then given to the Speaker there, instead of a formal presentation of it on the floor of the House, as envisaged by the Constitution.
More blatant perhaps was the non-compliance or interference in Ekiti State. In his letter to the National Assembly, which was carried in The Guardian newspaper of 27 October, 2006, President Obasanjo had said: “After the Economic and Financial Crimes Commission (EFCC) had submitted its report on Governor Ayo Fayose’s proven corrupt acts……. we made him to understand that he had to face up to EFCC’s follow-up actions” (emphasis supplied).
EFCC’s follow-up action was of course impeachment by the Ekiti State House of Assembly. The EFCC report was forwarded to the Assembly for that purpose. Sending the report to the Assembly was not merely a suggestion, it was an instigation, indeed a direction, that it should impeach the governor. The EFCC Act clothes the Commission and its controlling authority, President Obasanjo, with no power to give such direction even to an organ of an autonomous government of a state in a federal system.
The EFCC did not stop at that. It went further to coerce the Ekiti State House of Assembly members, by blackmail and intimidation, to carry out its instigation and direction. The EFCC invited them for interrogation more than six times. The Speaker and Deputy Speaker were detained once while the first set of five members arrested spent five nights in EFCC’s custody. Finally, on 27 September, 2006 all 26 Assembly members were picked up by EFCC operatives and taken to an unknown destination where, their spirit of resistance now broken, they were forced to sign an EFCC – prepared impeachment notice against Governor Fayose. Incredible as it may sound, the members were still being kept at this unknown address in Lagos during the impeachment proceedings, from where they were driven in EFCC vans to Ado Ekiti, the state capital, to attend meetings of the House.
“At this stage”, President Obasanjo continued in his letter to the National Assembly, “to save the state from the agonising experience of impeachment of some leaders of the party at state and national levels counseled Ayo Fayose to resign but he decided to see the impeachment process through”, the process having already been initiated by the Assembly members signing an EFCC-prepared impeachment notice. It may be that the Peoples Democratic Party (PDP), as the party that sponsored Fayose’s election as state governor has the moral authority to “counsel” him to resign, but President Obasanjo was acting in the matter more as President of the Federal Republic of Nigeria and Chief Executive of the Federal Government than as party leader.
The prejudice and injustice of President Obasanjo’s stance in this whole affair is revealed by the fact that his mind was already made up that the “corrupt acts” alleged against Governor Fayose in EFCC’s report had been “proven”. Governor Fayose had been found guilty without a hearing on mere accusations made against him in a report by the EFCC, a Federal Government agency controlled and directed by President Obasanjo. The President and the EFCC had thus constituted themselves the accuser and judge of Governor Fayose’s guilt for the “corrupt acts” alleged against him; by asking him to resign, they had pronounced him guilty of corruption.
That clearly is a perversion of the fundamental principle of justice enshrined in section 36(5) of our Constitution which provides that “every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty”. Had Fayose submitted to the coercion and blackmail by resigning, his resignation would be an implied admission of guilt, which would have left him at the mercy of President Obasanjo and the EFCC. Shorn of his constitutional immunity, he would have been immediately clamped into prison under chains, as was done to former Governor Alamieyeseigha of Bayelsa State after he was forced out of office by a patently illegal impeachment.
Having refused to resign, quite rightly in our view, Governor Fayose had to face impeachment by the State House of Assembly acting at the instigation, or on the direction, of the EFCC and President Obasanjo. It is a travesty, a carricature of federalism that an agency of the Federal government should be enabled to investigate the management of the financial affairs of a supposedly autonomous state government by its Governor and submit its report to the Chief Executive of the Federal Government who, accepting as “proven”, the allegations of “corrupt acts” contained in the report, then asked the state governor to resign or face impeachment by the State House of Assembly already under a direction to carry it out. This blatant mockery of federalism is made more a mockery because a State Governor is not armed with a reciprocal weapon which he can apply against the Chief Executive of the Federal Government in a case of “proven” acts of corruption committed by him, such as are alleged against President Obasanjo.
Governor Fayose must be applauded for standing by the principles of federalism and refusing to succumb to blackmail and intimidation. The Governors of the other states, who for so long have acquiesced in these acts of subversion of the federal system under the Constitution by the President and the EFCC, now feel sufficiently outraged to warn, in an advertorial in the Daily Independent newspaper of 27 October, 2006, that “a situation where impeachment process has been transformed into a frivolous instrument of blackmail and intimidation is against the spirit of democracy and is therefore totally unacceptable.” They condemn in “very strong unequivocal terms the sustained onslaught on the rule of law and constitutional process as evidenced by recent and on-going political developments especially in Ekiti, Anambra and Plateau states” which, they say, “constitute a systemic undermining of the institutions and structures of democratic governance” and a threat to “the peace, stability and continued corporate existence of our dear nation.”
Lest we be misunderstood, the issue is not whether or not Governor Fayose should have been impeached for the “corrupt acts” of which he was accused. A State Governor who embezzles huge amounts of money belonging to the State Government or who commits other grievous acts of corruption or abuse of office should certainly be impeached for “gross misconduct” but the decision whether or not to do so, based on proof of the truth of the allegations of gross misconduct, is that of the State House of Assembly, to be taken in its own free will without interference, dictation or coercion by the Federal Government. An ordinary federal law, like the EFCC Act 2004, which authorises such interference, dictation or coercion is unconstitutional, null and void as a subversion of the federal system instituted by the Constitution for the government of the country, and the President who initiated or sponsored such legislation and who enforces it or directs its enforcement is also guilty of subversion of the Constitution. That is the dictate of the federal system established by our Constitution.
The effect of President Obasanjo’s and the EFCC’s interference in Governor Fayose’s impeachment – in the form of instigation and dictation as well as the duress exerted on the Assembly members by means of blackmail, intimidation and physical beating and other forms of torture while they were in detention in EFCC’s insalubrious cells – is to render the impeachment unconstitutional, null and void, because the interference is a grievous violation of the autonomy of the Ekiti State Government which is a “bedrock” of the federal system established by our Constitution.
(ii) The use of undue or corrupt influence to induce members of the State House of Assembly to support the impeachment of the State Governor, as by giving them money for projects in their constituencies; N100 million each was given to the members of the Bayelsa House of Assembly.
(iii) The use of physical restraint or coercion on Assembly members for the same purpose, as by putting them under restriction for days in the insalubrious detention cells of the EFCC in Abuja, as happened, for example, in Ondo State.
(iv) The illegal arrest and detention of the Assembly members for refusing to comply with EFCC’s directive and instigation to impeach and remove the State Governor, as happened in Plateau State.
(v) The use of physical force and violence on Assembly members to get them to pass the impeachment motion in the House, as by the use of the police, drafted as EFCC operatives, to lay a siege on the meeting place of the Assembly. The siege laid on the meeting place of the Plateau State House of Assembly, on 5 October, 2006 has been described for us in graphic language by Chief Solomon Lar, the pioneer chairman of the ruling Peoples Democratic Party (PDP) and an indigene of the State,
“In the early hours of that day [he wrote], the Police in Jos surrounded the House of Assembly and blocked all roads leading to it. Later in the day, the EFCC arrived with seven of the legislators in its custody at Abuja under heavy police guard. They were marched into the House of Assembly where they were ordered to rehearse some actions which the public was later told was the removal of the Speaker of the State Assembly by six of the members. The two who disagreed and attempted to move out were ordered back into the hall at gun point. The legislators were later herded into a bus and driven back to Abuja from whence they came – all under the supervision of the EFCC accompanied by well armed Policemen.”
Among the seven legislators brought from EFCC’s custody at Abuja was Michael Dapianlong, EFCC’s principal collaborator in the plot. The eight dissident legislators at the meeting purportedly adopted and signed a notice of impeachment prepared for them by the EFCC. The two members who disagreed, Pam Dongs and Peter Azi, later wrote a letter, dated the same 5th October, to Speaker Lalong, through their lawyers, completely dissociating themselves “from the entire kangaroo sitting of 5th October 2006 and everything purportedly discussed or resolved thereat.” They also renounced “any documents purporting to bear their signatures”. Such was the physical beating and other deprivations of rights they suffered at the hands of EFCC that on 16 October, 2006 they filed an application in the Federal High Court Jos for the enforcement of the fundamental rights guaranteed to them by sections 35 (personal liberty), 36 (fair hearing) and 41 (freedom of movement).
On 13 October, 2006, seven of the eight legislators (Pam Dongs was replaced by Emmanuel Juyul) were brought again to Jos to adopt a resolution that the allegations of gross misconduct against Governor Dariye be investigated. They met with resistance by youths massed in front of the Assembly building and blocked entry into it by the police and the eight dissident legislators. In a the confrontation that ensued the police shot into the crowd and killed two of the youths, who then moved to the house of the Deputy Senate President, Senator Ibrahim Mantu, one of those behind the plot, and burnt it down. Again one of the legislators, Nandang Bako, forced to take part in the meeting of 13 October, wrote a letter to Speaker Lalong, dated 16 October, stating “categorically and without any fear of contradiction that the inclusion of my name and signature is a clear act of forgery and should, therefore, be discountenanced”, and that he was “still recuperating from my ill health and consequently unable to report to the EFCC”. The inclusion of the name of Peter Azi, who had earlier dissociated himself from the entire plot, as one of those who adopted the resolution to investigate the allegation of gross misconduct against the Governor, means that the plotters were only six in number.
It was the six, with Dapianlong as self-appointed Speaker pro tempore, that illegally passed the so-called impeachment motion removing Dariye from office as Governor of Plateau State. Dapianlong’s unilateral installation of himself as Speaker pro tempore is a violation of section 92(1) of the Constitution which provides that “there shall be a Speaker and a Deputy Speaker of the House of Assembly who shall be elected by the members of the House from among themselves” (emphasis supplies). How the membership of the House was said to have reduced to ten, so as to constitute the six who passed the impeachment motion a two-thirds majority of the House, is a perverse and illegal manipulation by Dapianlong, backed by EFCC, but we need not go into that here.
It is necessary to state that, with the exception of Dapianlong and his five cohorts, all the other members of the House are solidly behind Simon Lalong as Speaker of the House. In two emergency meetings of the House which he convened on 5 and 18 October respectively, with 16 members, who were not in EFCC custody, in attendance, the meetings not only “deprecate the actions of Hon Michael Dapianlong and his cohort of 5”, but also “reaffirm our total confidence in the leadership….. of the Speaker of the House, Rt Hon. Simon Bako Lalong,” and their “earlier resolution demanding the immediate withdrawal of officers of the Nigeria Police from the Plateau State House of Assembly Complex.” The resolutions were signed by all 16 members in attendance.
- Nuhu Ribadu disgraced and degraded the high office of the Governor of a State by having the Governor of Bayelsa State arrested and handcuffed inside an aircraft in London in the view of other passengers as he landed there from Germany, and again had him handcuffed as he was marched to prison in Lagos, when such action was not warranted by the offence of money laundering which he was alleged to have committed. Handcuffing a person in public view for a non-violent offence, like money laundering, is certainly a degrading treatment outlawed by section 34(1) of the Constitution. The handcuffing could not have been for any other reason than to disgrace or humiliate him to satisfy the vengefulness and spite of the power that be. What was involved was not just the arrest and handcuffing of an individual; it was, in a symbolic sense, the arrest and handcuffing in a foreign country of part of the sovereignty of Nigeria embodied or incarnated by the Governor.
- In the whole scenario of acts of victimization and vendetta by the EFCC under Nuhu Ribadu, perhaps no other such act is more punitive or subversive of the Rule of Law than the freezing by the Commission on 13 January, 2006 of all the bank accounts, 23 altogether, of the Plateau State Government in four named banks for the offence of corruption allegedly committed, not by the Government or any of its agencies, but by Governor Dariye as an individual. The EFCC freezing order was made purportedly pursuant to section 34(1) of the EFCC Act which clearly does not authorise the making of such order. The freezing of the accounts was thus a brazen exhibition of extreme lawlessness.
The object intended to be achieved by the freezing order was to paralyse the entire operations and activities of the Plateau State Government and all its agencies. The purpose was to coerce Governor Dariye to quit office by creating disaffection and revolt against his Government by reason of its inability to pay the salaries and other emoluments of its workers and pensioners and to meet its obligations to the people of the State. He got a judge of the Federal High Court Lagos to bestow judicial authority on his action, and it took a petition to the National Judicial Council (NJC) to get the judge to reverse his own action.
Comparable to the freezing of the bank accounts of the Plateau State Government was the seizure, four days before the impeachment of the Governor Bayelsa State, of the State’s allocation from the Federation Account for the month of November 2005. The State Government had, in a press statement, denounced the seizure as amounting to “the trampling upon the rights of the hard-working civil populace, and a clear travesty of justice.” The statement further protested that “the closure of the Bayelsa Broadcasting Corporation by the federal government is a clear and undisguised attempt to appropriate the corporate will of our people, and compel us to conform to an undemocratic ethos.”
The lawless activities of the EFCC under Nuhu Ribadu, aimed at subverting the autonomy of the State Governments were increasingly assuming terroristic proportions. Its armed men terrorised State after State – Bayelsa, Plateau, Jigawa, Benue – rendering the terrorised State a helpless captive. From time to time reports appeared in the newspapers of state government offices being deserted and of commissioners and other functionaries fleeing in fear generated by the visit of an invading force of EFCC armed operatives.
.Prof Nwabueze is a Lagos-based constitutional lawyer.