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Objection to corruption trial: EFCC replies Bankole
Newsdiaryonline
Thur July 7,2011
The EFCC today replied former Speaker, Dimeji Bankole on his
objection challenging
his trial by the Commission at the FCT High Court, Abuja .
Briefly put Bankole has
asked the Court to quash the charge of illegally obtaining loans
to the tune of about
N40billion naira to pay enhanced running costs and
allowances of members on
the following grounds:
1.
That by virtue of the Legislative Houses (Powers and
Privileges) Act, no
court of law can try him.
2.
That the EFCC did not obtain the fiat of the
Attorney-General of the
Federation to file a charge because there was no
Attorney-General of the Federation
at the time of filing the Charge.
3.
That there is no evidence linking Bankole personally with
the alleged offences
since he only gave effect to the decision of the whole House.
4.
That he has already been scandalized by the Press and the
EFCC so he would not get
a fair trial.
EFCC’S REPLY:
In an 80-page reply filed today at the FCT High Court, EFCC
thoroughly addressed each of these issues.
In the first place, the Commission asked the court to be wary at
this stage of delving
into the main case. The Commission submitted as follows: “This
court runs the risk of
making far reaching pronouncements at this stage in respect of
the proof of evidence if
the court allows itself to be carried away by the
arguments of the
Accused/Applicant. The court should bear in mind at all times
that trial has not
started and should refrain from going into the substantive
issues. The law is that
the court must never consider whether there is prima
facie evidence
at this stage, must should only consider whether there is
a prima facie case. This
means the court should only consider whether the name of
the Accused/Applicant
has been linked with any of the
counts in the charge to call
upon the prosecution to elaborate further and not whether the
evidence is sufficient
to convict or not. That can be at the stage of a no-case
submission or final
address.”
On the first issue, that is, that by virtue of the Legislative
Houses (Powers and
Privileges) Act, no court of law can try him, the Commission
submitted in respect of
Section 3 and 30 of the Legislative Houses (Powers and
Privileges) Act as
follows: “We submit that a close scrutiny of the above sections
indicate that the
protection offered only relates to Legislators acting in
discharge of their
legislative functions. They cannot be stretched to include
Legislators acting in
other capacities. In any case, we have submitted above that the
Accused/Applicant was charged, not as a Speaker or a Legislator,
but as a member or the
Head of the Body of Principal Officers, and as such he was
charged in exercise of
his administrative functions not legislative
functions…. We therefore
submit that Sections 3 and 30 of the Legislative Houses (Powers
and Privileges) Act, are
inapplicable in this case.
In addition to the above
argument, it is clear that from the Head Note of Section
3 of the said law, which
is “Freedom of Speech”, the intention of the Legislature is only
to protect free speech
during debate in the House by the said Section. It is not
and cannot be a blanket
protection for all criminal acts.
Similarly, it is also obvious
from both Sections 3 and 30 quoted above that both sections only
contemplate the application of the immunity clause only when the
officers are acting on
matters within the scope of their powers and authority, hence
the use of the phrase
“in respect of the exercise of any power conferred on or vested
in him by or under….” used in Section 30. It cannot be the
case that those sections apply
when the Legislators are acting on matters
clearly outside the scope of
their authority or
powers. If, for instance, the Speaker or members, during
sitting in the House or
a Committee, take a joint decision to go and commit
murder, clearly that
matter is not within the scope of their powers or authority
and they cannot plead
the so-called immunity if they are arrested and charged
with conspiracy to
commit murder. One
more angle to section 3 and 30 of the Legislative Houses
(Powers and Privileges) Act: Those sections appear to confer
immunity on the members
of the National Assembly and the Speaker and Senate
President in certain
circumstances. To that extent, we submit that both sections
are
unconstitutional…….In this case, the Constitution has already
stated instances where
certain offices are immune from prosecution. By the doctrine of
“covering the field”, no
other law can seek to add or remove from the list of
those immune……We submit
that the Constitution has
covered the field in respect
of those immune from
civil or criminal proceedings, as such the provisions of
the Legislative Houses
(Powers and Privileges) Act, that seeks to expand that
field are null and void
to the extent of their inconsistency with provisions of
the 1999 Constitution of
the Federal Republic of Nigeria (as amended) and we
urge this Honorable
Court to so hold.”
On the second issue, that the EFCC did not obtain the fiat of
the Attorney-General of
the Federation to file a charge because there was no
Attorney-General of the
Federation at the time of filing the Charge, the
Commission, through its
counsel, Mr. Festus Keyamo, submitted thus: “The law is
that the Economic and
Financial Crimes Commission and other law enforcement
agencies can, indeed,
directly initiate criminal prosecution against anyone without
the fiat or permission of the Honourable Attorney-General of the
Federation, only subject
to his powers to take over and/or discontinue such
proceedings.” The
Commission also deposed in its counter-affidavit as follows:
“That apart from the direct powers and mandate of the Economic
and Financial Crimes
Commission to institute and undertake criminal proceedings and
to brief private lawyers
in that regard without reference to the office of the
Attorney-General of the
Federation, that the Economic and Financial Crimes
Commission, since its
establishment, has been given general permission by the
office of the
Attorney-general of the Federation to institute prosecutions
against persons in the name of the Federal Republic of Nigeria
and the State and to
brief private legal practitioners to so do.”
The Commission submitted that with the above facts, the door is
firmly closed against
Bankole to raise issues about the authority of the prosecution.
This is because the
burden is on the Accused/Applicant to show that the Economic and
Financial Crimes
Commission did not have the permission of the Attorney-General
of the Federation to
prosecute them and to brief a private legal practitioner in
that regard. It is not
the other way round for the Economic and Financial Crimes
Commission to show that
it had the authority of the Attorney-General of the
Federation to prosecute
the Accused/Applicant. It relied on many Supreme Court
decisions in this regard.The Commission went on to submit that
if the sum total of the
contention of the Accused/Applicant means that Mr. Festus Keyamo
was not briefed to
prosecute this matter, the simple reply is that the only person
who can challenge the
authority of Mr. Keyamo to appear is the Attorney-General of
the Federation
himself.The Commission submitted further:“In fact, the fallacy
of the arguments of
counsel to the Accused/Applicant in this regard is hinged
entirely on the false
and empty foundation and assumption that the E.F.C.C was
bound to seek permission
from the Attorney-General of the Federation only
immediately before the
charge was filed before this court, and that
since there was
no person occupying the office of the Attorney-General of the
Federation at the time the charge was filed, then it
automatically means no authority
exist….As a result of the above and with our deposition
that E.F.C.C has since obtained
a general permission from the Attorney-General of the Federation
in respect of
prosecutions, it does not lie in the mouth of the
Accused/Applicant to
question that authority.” The Commission concluded this leg of
the arguments by stating
thus:
(1) There is no duty on the prosecution to display that fiat at
the beginning of trial,
as the fiat must not be in a particular format. A deposition,
like we have done, that
such authority exists, will suffice.
(2) Only the
Attorney-General of the Federation can appear in this court to
deny the authority of
the Prosecution.
(3) The Accused/Applicant has no locus, or right to question the
appearance of the
Prosecution.
(4) The court
cannot even open an inquiry over authority of counsel for
prosecution.
On the third ground of objection, that is, that there is no
evidence linking Bankole
personally with the alleged offences since he only gave effect
to the decision of the
whole House, the Commission submitted that there are enough
evidence in the Proof of
Evidence linking Bankole with the offences of criminal
breach of trust and
stealing and that without his final approval, none of these
acts would have been
committed. The Commission submitted further: “The question
as to whether the
Accused/Applicant acted dishonestly can easily be ascertained
by his conduct. The
Rules and Regulations which he violated in approving those
unauthorized sums were not made for fun. They were made to check
endemic cases of
corruption in our country. As a result, a violation of
those rules and Regulations
will lead to the clear inference that the person is acting
dishonestly……..The other
argument as to separating the person of the
Accused/Applicant from
his position cannot hold water. This is because in cases
of corporate fraud, the
directing minds of the corporate body shall be held criminally
liable for deliberate infractions of the law. This was also laid
to rest in Bode George’s
case.
On the issue raised that the House merely shared money belonging
to themselves, the
Commission submitted as follows: “My Lord, there is a grave and
fundamental misconception here. Even though the loans were
illegally obtained (that is without
following guidelines) once they were paid into the account of
House of Representatives,
which is an arm of Government, the money was already standing
to the credit of
Government, not the personal funds/account of the
Accused/Applicant or the
members of the House of Representatives. To bring this
example home, now the
Accused/Applicant has left office as Speaker of the House
of Representatives. Is
he the one that will now pay back those loans? Of course
not! The mess he has
left behind will be cleared by Government and not himself
or his family.
There is no better way to prove this point than to quote the
statement of M.A Sani
Omolori at page 12A of the Proof of Evidence where he
stated as follows: “It
was agreed, after discussions at the level of the Hon.
Speaker, and the two
Chairman of the appropriation committees to loan the total
of N4b and reflect them
appropriately in the 2011 budget together with what was
outstanding with the
Bank. This prompted the memo dated 4th November, 2010. The
two Chairmen gave the
commitment in writing to reflect the payment in 2011
budget. The Hon. Speaker
approved the process of the loan from UBA.” We can now
clearly see that the
loans are going to be paid back by the Federal Government
and yet the Accused/Applicant wants this court to believe that
the money is not property
of the Federal Government.”
On the fourth issue, that is, that he has already been
scandalized by the Press and
the EFCC so he would not get a fair trial, The Commission
submitted: “We are at a
complete loss as to the purport or reason for this objection. It
smacks of nothing but
trying to turn this trial into a political arena and this court
will resist that.
Firstly, the Economic and Financial Crimes Commission has
statutory powers of
arrest, detention and prosecution, like that of the Police. This
objection is nothing but
playing to the gallery. It should be dismissed
instantly…..The
Accused/Applicant has alleged in paragraphs 10, 13 and 16 of the
Affidavit in support of
the Application that the Economic and Financial Crimes
Commission and the
prosecutor indicted, vilified and
filmed the Applicant as a
criminal. This allegation has been denied in paragraphs
4 (q), (r) and (s) of the
counter affidavit. In any case, the law is that newspaper
reports are not admissible
as evidence of the facts recorded therein. Again, how was the
Accused/Applicant “harassed”, “intimidated” or “humiliated”? We
see none. The Accused/Applicant was simply arrested, detained
briefly, interrogated and charged
to court like every other Nigerian. The truth of the matter is
that he sees himself as
being above the law and feels indignant that anyone dares to
arrest him. It is this
attitude of the Accused/Applicant that deserves serious
condemnation and
reprimand by this court and not the EFCC and we urge this court
to do so.
Again, the proper procedure for the Accused/Applicant to redress
any wrong done to him in
the manner of his arrest and detention is to proceed to court to
enforce his fundamental
human right. The procedure for doing this has been
clearly stated in the
1999 Constitution of the Federal Republic of Nigeria (as
amended) and the
Fundamental Rights (Enforcement Procedure) Rules 2009 made
thereunder. The law is
that when a particular mode has been spelt out by the law
for seeking redress, it
is that mode that must be followed.”
The EFCC concluded its arguments as follows: “In the final
analyses, we urge this
court to thoroughly dismiss the Preliminary Objection of the
Accused/Applicant and
allow the prosecution to prove its case. The war against
corruption cannot be
halted by flimsy legal technicalities, seemingly clever
subterfuge and dodgy
arguments.”
The case comes up on the 19th of July, 2011 at the FCT High
Court, Apo, Abuja , before Justice Belgore.
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