INTERVIEW: EFCC shouldn’t act in ways that show it’s above the law, says Ozekhome

Mike Ozekhome, a human rights lawyer and senior advocate of Nigeria (SAN), in this interview with TheCable’s TEMIDAYO AKINSUYI, shares his thoughts on the hide-and-seek game between Yahaya Bello, former Kogi state governor, and the Economic and Financial Crimes Commission (EFCC).

TheCable: The EFCC has charged Yahaya Bello, the former Kogi state governor, with 19 counts of money laundering involving over N80 billion at the federal high court in Abuja. However, there has been a back-and-forth between the anti-graft agency and Bello over his refusal to attend court proceedings. What is your take on the issue?

Ozekhome: The law is that once a matter has been submitted to court between two warring parties, neither of the parties is legally allowed to take any steps in the matter, which is already subjudice. That was what the supreme court said in Ojukwu vs Lagos State Governor case. It said that even if an injunction has not been granted, no party in a matter must take the laws into his own hands because that will be overreaching his opponent.

Now, if a court of law has already granted an injunction restraining the EFCC or any other person from arresting Yahaya Bello, that injunction stays until it is vacated by a superior court or by the same court with an argument that the injunction was obtained on the basis of wrong information or misrepresentation of fact. Apart from that, the EFCC will not be legally able to declare Yahaya Bello wanted, given that a court intervened. More significant is the fact that the EFCC itself said it has already filed charges against Yahaya Bello. If it has, then he becomes the subject of a court of law. He should, therefore, be allowed to come to the court and answer the charges. He shouldn’t be hounded and assaulted again. It is not legally justifiable. It is not right, and it is not constitutionally defensible.

The hoopla and ruckus generated by this needless arrest and detention brouhaha is unnecessary because it detracts from the critical matter concerning a beleaguered country like Nigeria, and it has made us a laughing stock in international circles. We must be seen to operate within the confines of the rule of law. The EFCC’s motto is ‘Nobody is above the law’. So, the EFCC must operate in a way that shows that it is not acting above the law.

TheCable: The EFCC also justified its barricade of the former governor’s residence in Abuja, saying it did so after he (Bello) failed to honour several invitations. The EFCC chairman said he called Bello and asked him to come to his office, but he refused to show up. Don’t you think the actions of the EFCC are justified?

Ozekhome: There shouldn’t be any need to hurry. A trial can last for years. If Yahaya Bello has been charged in court, let him go to court in a dignified manner. He should be treated with dignity, not because he was a former governor, but for the simple reason that he is a citizen of Nigeria and the law is equal among all parties. He should go and answer the charges, and it will now be for the EFCC to prosecute him and prove their case against him beyond reasonable doubt.

When they get to a court of law, his lawyer will now apply for bail because the matter at stake is a bailable offence, even if they say he stole N100 billion. He is presumed innocent until it is proven that he is guilty, as stipulated under section 36 of the 1999 constitution. The Nigerian criminal justice system is accusatorial. That means the innocence of a person is presumed, not his guilt. It is Anglo-Saxon based and different from the French model, which is inquisitorial. In the French model, it is your guilt that is presumed, and you don’t have to prove your innocence. But here in Nigeria, we do not operate that in our criminal justice system.

So, I believe that the EFCC should be patient. They should tarry awhile. Let Yahaya Bello come to court in a dignified manner and answer the charges against him. The EFCC shouldn’t break into his house or waylay him like a common criminal. That was the same thing that was done to Rochas Okorocha years ago under the injurious reign of Ibrahim Magu as EFCC chairman. It was the operational modus operandi of Magu that made me fight him at the EFCC throughout. The new chairman, Olukoyede, who appeared to be a more intelligent and vigorous young man, should not fall into the mistakes of his predecessors, who had always ruined their jobs and their reputations.

TheCable: Some Nigerians have faulted the press briefing by the EFCC chairman and accused the agency of engaging in a media trial. Do you agree with that sentiment?

Ozekhome: Yes, I agree with those sharing that view. The EFCC should, as much as possible, avoid media trials. There is no need to put all these things in the public domain. When a person is abroad, you first investigate the person carefully.

In the United States of America, when a person is being charged in court, you know that the prosecutors have done their jobs thoroughly and tightened their case. So, when they go to court, they are ready to prove their case. That is how things should be done. We should not make it a case of name and shame here in Nigeria, such as ‘let us first embarrass him; let us first disgrace him before the world’. They shouldn’t use a tainted brush of shame, odium, and opprobrium to taint his image. That, to me, is not necessary. I do not believe in media trials, and I have never encouraged them. I will always kick against it.

I have always said that security agencies and anti-corruption agencies should do their jobs quietly. They should charge the person in court quietly and then let the person defend himself. I think the EFCC should take it easy and ensure that Yahaya Bello is charged in court. He should be given his day in court and allowed a fair playing field to defend himself. That is what I believe should happen in this matter.

There is no need for this needless controversy. To me, the controversy over the arrest of Yahaya Bello is unnecessary. If he were not a former governor who had enjoyed immunity under section 308 of the 1999 constitution, if he were a common man, let’s say a truck pusher, driver, vulcanizer or bricklayer, would this issue have been so escalated? I do not think so.

TheCable: How do you think the judiciary has fared among the three arms of government in upholding democracy in Nigeria?

Ozekhome: The judiciary remains the best of the three arms of government in terms of upholding democracy, deepening, and widening the plenitude and the amplitude of democracy.

For instance, during the military junta years, we had the executive, which combined the legislative function by churning out decrees and edicts. At the time, it was the absence of the legislature that made people say that there was no democracy because the judiciary always remained with the executive, while the executive usually annexed the functions of the legislature by churning out decrees and edicts. But even under the said military juntas, the Nigerian judiciary refused to blow a muted trumpet.

We saw that in great cases like Ojukwu Vs the Governor of Lagos state when he was thrown out of his lodge in Ikoyi and the court insisted that he must first be brought back to his house mandatorily before the court would listen to the prayers of the Lagos state government asking for a stay of execution or to go on with the main case.

I have rated the judiciary higher than the two other arms of the government because the executive, the legislature, and the judiciary constitute the three arms of government in the tripartite doctrine of separation of power famously popularised by the great French philosopher, Baron De Montesquieu in 1748. That is not to say that the judiciary does not have its problems, systemic problems, problems that afflict its performance, and problems that question its integrity in the eye of the average common man in terms of its dispensation of justice.

For instance, not a few Nigerians believe that justice can only be bought and sold to the highest bidders in terms of people with deep pockets. Not a few Nigerians believe, particularly, in election petition matters. They believe that the judiciary is up for grabs in terms of where the pendulum swings during electoral contestation. Many people believe that on some occasions, some judges even fight frantically to be included in election petition tribunals/panels because of what many people believe will be the money that will accrue from it.

So, such a perception is dangerous for the effective dispensation of justice. It may not be wholly true. It may also not be wholly false. But we must be careful because perception is reality. And like we always say in local parlance, there is no smoke without fire, and there is no fire without smoke. It is therefore left for the judiciary to do everything possible to wipe out from the minds of the public this ugly, odious perception that justice is being sold to the highest bidders. The judiciary must run away at top speed from what Alexander Hamilton once said about the judiciary in his Federalist Paper No. 78, when he said, “Of the three arms of the government, the judiciary is the weakest. It has neither purse nor sword to effect its judgment.”

When an arm of government is already weakened by the system itself, suffocating under the bullish executive and a strangulating legislature, and decides again to self-immolate and self-destruct by embarking on a specious gamble or doing those things that, in the eyes of the common man and woman on the street, do not endear it to them, then, there is a problem. That problem must be solved immediately by no other person than the judiciary.

TheCable: How best do you think democracy can be deepened in Nigeria?

Ozekhome: I think that it is high time for the Justice Mohammed Uwais Electoral Committee Reform report and the Senator Ken Nnamani Electoral Committee report to be dusted up by the federal government to rejig and reinvent the wheel of our electoral process. Otherwise, what we are practising today is not necessarily democracy, which is the government of the people, by the people, and for the people, as stated by Abraham Lincoln in his 1863 Gettysburg Declaration, but the government of the powerful, by the few, and of the ruthless. That is not good for us as a nation.