Forfeited assets and illegality of Malami’s committee

BY THOMAS AGBOOLA

It’s no longer news that the Attorney General of the Federation (AGF) and Minister of Justice, Abubakar Malami (SAN) has composed and inaugurated a 22-man interministerial committee to dispose of assets forfeited to the federal government through anti-graft agencies, especially the Economic and Financial Crimes Commission(EFCC), the main agency in the fight against corruption.

In composing the committee, Malami, SAN, said he relied on the order of President Muhammadu Buhari, to dispose of the assets, essentially obtained by the former owners as proceeds of crimes, having been so established by the EFCC.

The committee headed by Mr Dayo Apata, Solicitor-General of the Federation and Permanent Secretary Ministry of Justice, has up to six months to dispose of the assets whose sales are meant to generate more income into the coffers of the Federal Government.

Yes, it is good the FG is looking beyond crude oil sales to generate more income especially given the fact that the country is not financially buoyant at the moment, which is partly blamed on the months-long lockdown occasioned by the COVID-19 pandemic.

However, in looking for more revenue beyond oil and tax, it is instructive to let the Federal Government know that it can’t perpetuate Illegality in doing so. Our current democracy is built on the rule of law which imposes it on all government functionaries, to as a matter of necessity, always play by the provisions, spirit and letter of the Constitution (as amended).

Unambiguously, it’s the statutory responsibility of the EFCC as codified in its EFCC (Establishment) Act 2004, a creation of the National Assembly, to carry out the actual disposal of all forfeited assets it must have legally secured through the courts or any other means known to the law.

For the avoidance of doubt, Section  31: (1) and subsections (2), (3), (4) and (5) on Final Disposal of Forfeited Property of the EFCC (Establishment), Act 2004, are very clear and unambiguous on how forfeited properties can be sold.

Section 31 (1) states as follows: “A copy of every final order forfeiting the assets and property of a person convicted under this act shall be forwarded to the Commission.

(2) Upon receipt of the final order pursuant to this section, the Secretary to the Commission SHALL (emphasis mine) take steps to dispose of the property concerned by sale or otherwise and where the property is sold, the proceeds thereof shall be paid into the Consolidated Revenue Fund of the Federation.

(3) Where any part of the property included in a final order is money in a bank account or in the possession of any person, the Commission shall cause of a copy of the order to be produced and served on the manager or any person in control of the head office or branch of the bank concerned and that manager or person shall forthwith pay over the money to the Commission without any further assurance than this Act and the Commission shall pay the money received into the Consolidated Fund of the Federation.

(4) The Attorney-General of the Federation MAY (emphasis mine) make rules or regulations for the disposal or sale of any property or assets forfeited pursuant to this Act.

(5) Any person who, without due authorization by the Commission, deals with, sells or otherwise disposes of any property or assets which is the subject of an attachment, interim order or final order commits an offence and is liable on conviction to imprisonment for a term of five years without option of a fine.”

The interpretation of the above is that no any other committee relying on whatever extra-judicial order can carry out the actual disposal. Which presupposes that the Dayo Apata-led Committee is a nullity in the eyes of the law. It is also unassumingly correct that whoever buys any of the assets from the illegal committee is deemed in the eyes of the law to have wasted his fortune doing so. It is going to be a toxic risk no one should take.

For oversight functions on the actual disposal of forfeited or seized assets, the office of the AGF can only regulate the actions of the anti-graft agency without undue interference in the actual disposal of the assets.

It is clearly a thing of shame that Malami and other arrowheads in this infamous act, relying on the lack of knowledge of the President in matters of law, have decided to play a fast one on the President to hoodwink him into giving a blanket presidential declaration to allow the Minister dispose of the seized assets.

It’s elementary law that a presidential directive cannot supplant or override an extant provision of the law. Anyday a directive of the President overrides a clear provision of the law is the day the country should begin to bid farewell to democracy and constitutionalism.

In any case, one of the accusations of Malami against the suspended Acting Chairman of the EFCC, Ibrahim Magu, before the Ayo Salami-led Commission of Enquiry, is that the latter had allegedly sold off forfeited assets to his cronies and allies using proxies, an allegation that has thoroughly been shredded to a tissue of lies it has always been abinitio.

One of the issues before the Salami panel which is to prove the twin allegations of fraud and insubordination levelled against Magu by Malami is the sale of forfeited assets.

Going by some reports, the panel is expected to turn in its recommendations to the President this week. It is pertinent to then ask why the AGF is in a hurry to dispose of the seized assets when the panel is yet to submit its report?

Is it possible that Malami has had a glimpse of the report which should ordinarily cede the powers to sell the forfeited assets to the EFCC as Magu has consistently said, which is the actual provision of the law as codified in the EFCC Act?

Why is Malami eager to bring the Buhari-led administration into further disrepute and ignominy by carrying out an act that is completely a constitutional aberration?  Who will tell the President that it is materially beyond his powers to grant an order to Malami to usurp the powers of the EFCC?

One take away from the hastiness of Malam, in this case, is that one of the running battles he has had with Magu is the sale of the forfeited assets. While Malami will stop at nothing to direct the actual sales of the assets, Magu has been saying consistently that it is the constitutional responsibility of the EFCC to do so regardless of who the chairman of the anti-graft agency is at any particular time.

Without prejudice to the Salami panel and whatever outcome it may generate which will be laid bare before the public in the next few days or weeks, one thing that gives every anti-corruption campaigner in the country a thing of joy is the way and manner Magu has dismissed all the allegations levelled against him by Malami, who is unapologetically anything anti-Magu, by clearly marshalling his points with credible evidence before the panel.

When a good man leads an organization, the productivity of such an agency will not be hidden under the table. Has anyone noticed the near absence of EFCC in the past months since the suspension of Magu by the President? Such was the commanding presence of Magu on the leadership of the anti-graft agency. Truth, no matter the suppression by agents of darkness, will always prevail in the long run. Time will tell as Nigerians patiently await the verdict of Salami on Magu

Thomas Agboola is a Lagos-based public analyst