Is Ibrahim Magu, Acting Chairman of the Economic and Financial Crimes Commission, EFCC, undermining the office of the Attorney-General of the Federation and Minster of Justice, Abubakar Malami SAN? Is Magu working at cross purposes with Abubakar Malami, the Chief Law Officer of the country? Who is working against the interest of Nigeria and Nigerians?
There is little doubt that these and many more such posers must be agitating the minds of discerning Nigerians since the letter written to the Presidency and the EFCC by Malami on how to proceed with the Malabu oil scandal was leaked to the press, allegedly by Magu. The mischievous slant given to the leaked letter by the press makes these questions even more imperative.
As a recap, Malami’s letter was an advisory to the EFCC to reconsider its charges against the parties involved in the $1.1 billion Malabu oil field scandal, with a view to securing a successful prosecution as the proof of evidence relied upon by the anti-graft agency was not strong enough to get the court to convict the accused. Of course this was mischievously interpreted as asking the EFCC to discontinue the case.
It has become imperative that the EFCC acting chairman be reminded that engaging in soapbox antics is unhealthy and goes against the grain of established rules concerning his office and its relationship with the Office of the AGF. It is important to remind Mr. Magu like Janet Reno, one-time Attorney General of the U.S said; “while I’m the Attorney General, we will address each issue with one question: What’s the right thing to do?”
It is about time Magu be reminded that he is not in position to determine which case to pursue or not, rather that of the AGF as constitutionally laid down. Therefore, the EFCC’s insistence to advance the prosecution without heeding the advice of Mr. Malami SAN is curious and a clear undermining of the former’s powers as the chief prosecutor for the Federal Government.
Anyone familiar with the Malabu block saga will agree that it is that drawn lots of controversies since the days of ex-President Olusegun Obasanjo and former President Goodluck Jonathan’s. Records show that it became more heated during Jonathan’s as he authorized Malabu Oil and Gas Ltd to sell the OPL 245 oil block to Shell and Agip-Eni in 2011.
The deal, which led to Shell and Agip’s procurement of the oil field at $1.1 billion, had former Petroleum Minister, Diezani Alison-Madueke, and former Attorney-General Mohammed Bello Adoke, as government representatives in the sale. Mr Dan Etete, a former Petroleum Minister and key subject in the scandal, had allegedly acquired the OPL 245 under dubious circumstances in 1998 during the dictatorship of late General Sani Abacha.
The parties involved in the deal had been accused of connivance and bribery and were consequently charged for criminal conspiracy and fraud by the EFCC.
But there was a new narrative to the whole matter when Malami, in a letter dated September 15, 2017, called the attention of President Muhammadu Buhari to “the civil and criminal aspects of the case.”
The Attorney General, perhaps leveraging on his vast experience and good judgement, had observed that the entire Malabu chronicle requires deep and careful treatment.
In his letter to the President, Malami noted the civil aspects of the case as bothering on “the skirmishes between the Directors of the company [Malabu Oil and Gas Ltd] which led to the claims that shares of some directors were divested without their consent thereby taking over their interest.”
The AGF also noted that the aggrieved directors had approached the courts and equally petitioned the EFCC against the Directors of Malabu Oil and Gas for allegedly divesting their investments in the company as well as depriving them of their benefits when the OPL 45 was eventually sold.
It was on the premise that the Federal Government’s pursuit of EFCC’s charges may amount to sub-judice that Malami sought President Buhari’s approval for government to “await the outcome of the cases” filed by the aggrieved directors. The AGF had in separate letters to the President and the EFCC noted that the criminal charges being pressed by the Magu-led anti-graft agency “may most likely not succeed against the parties” involved in the Malabu scandal.
Malami’s first letter to the EFFC dated September 20, 2017, noted amongst other reasons that the anti-graft agency’s charges may never fly because “there is nothing to show that the parties as constituted were at all times working together and having a ‘meeting of mind’ to wit; to forge CAC document and use it for the purpose of divesting the shares of the complainants and thereafter, enter into a settlement with FGN and other parties to take delivery of the proceedings of sale of the OPL 245.”
The AGF’s letter noted that the anti-graft agency’s investigation and proof of evidence against the parties barely reveals the case of fraud.
The AGF stated that “The Public Protection Act CAP P41, Laws of the Federation of Nigeria, 2004 limits liability of Public Officers to a period of months.” As such, Malami advised that unless the EFCC conducts thorough investigation and consolidates on its charges, the government may lose its suit against the parties.
The Attorney General had equally asked the EFCC to substantiate its claims against Mr. Etete and others that the $1.1 billion as filed in the suit was ill-gotten.
It however took another letter of reminder on December 19, 2017, by the Director of Public Prosecutions in the Federal Ministry, Mohammed U.E., before Mr Magu could respond to the AGF’s letter that was dispatched on September 20th.
It was surprising that when Magu responded, in what has become his bellicose attitude, he intimated that the agency was proceeding with the prosecution despite a directive from his supervising ministry.
Extracts from Magu’s response read: “The Commission’s Prosecutors are of the view that the injury to the Nigerian state in the OPL 245 transaction is a continuous one (i.e. in the form of loss of revenue occasioned by prima facie criminal conducts) which brings it under the exception provided in section 2 (a) of the Public Officers Protection Act, Cap p41, LFN, 2004 (as updated).”
Asked to clarify what Magu’s response to the AGF’s meant, an Abuja based lawyer, Tony Ogbulafor, told THE WHISTLER that: “all prosecutions of criminal cases in the federation relating to federal offences are done on behalf of the Attorney General of the Federation (AGF). The AGF has the powers under the constitution to commence and stop any criminal prosecution. And he does not have recourse to anybody.
“Once he says stop, it stops. He (Malami) was trying to be very lenient or accommodating to the EFCC Chairman. He can go to court and file what is called ‘nolle prosequi’ which means don’t prosecute or I don’t want to prosecute.
“So, if the EFCC files a criminal suit against anybody in Nigeria and the AGF feels it wasn’t done right, he can without recourse to anybody or the EFCC Chairman go to court and file a ‘nolle prosecution’ and that is the end. Once ‘nolle prosequi’ is received in court that is the end of the case.
Ogbulafor specifically stated that “Right now, the EFCC acting chairman is legally overstepping his bounds as far as I am concerned. Because the chief prosecutor of the federation is the Attorney General and he has powers under the constitution to say prosecute or don’t prosecute. And if he says that, so be it.”
Another Lagos based lawyer, Jemisenia Imisioluwa, who equally spoke to THE WHISTLER on the matter, said “the Constitution of the Federal Republic of Nigeria (as amended in 2011) makes provision for public prosecutions and vests enormous powers in the AGF. Notably, section 174 (1) (b) of the Constitution vests power in the AGF to take over and continue any such criminal proceedings that may have been instituted by ANY other authority or person.”
Imisioluwa added that “the AGF is empowered by the Constitution to take over and continue any criminal proceedings, including matters such as the matter under reference, which may have been instituted by the EFCC.
“The AGF may exercise his power to take over if he deems it to be in the interest of the public, justice and the need to prevent abuse of legal process,” he added.
From his antagonistic position, it seems the EFCC has gone rogue under Magu as it continues to flagrantly undermine the authority of the AGF. But for how long will this continue?
Disclaimer: The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the official policy or position of The Whistler NG