By Wahab Shittu, Counsel to Ibrahim Magu
MAGU’S LAWYER FAULTS SALAMI PANEL’S BID TO OUST POLICE FROM EFCC INSISTS RECOMMENDATION OUTSIDE PANEL’S MANDATE SAYS PANEL DESPERATE TO NAIL MAGU WITH INVITATION OF WITNESSES AFTER CONCLUSION OF HIS EVIDENCE.
Our attention has been drawn to a media reportage in one of the national newspapers where it was reported that the Justice Isa Salami led Commission of Enquiry would recommend that the head of the EFCC should no longer come from the Nigeria Police. It was also reported that the panel would recommend that policemen should no longer be operatives of the EFCC.
We were further alarmed with the media report when it stated thus “If the plan to remove the police from the EFCC is approved, it will foreclose the recall of Acting Chairman Ibrahim Magu.”
We had waited patiently for a rebuttal of this story. Unfortunately, the story has not been retracted forcing us again to respond to the misleading report.
As counsel of choice to Magu, our immediate reaction is one of shock that the panel could contemplate what is clearly outside its mandate for undisclosed reasons. Clearly, we are unable to understand how a Judicial Commission of Enquiry constituted by law will arrogate to itself powers outside its statutory mandate including taking over the functions of the National Assembly to amend the EFCC Act 2004. Our client, who is incorruptible and remains innocent of all the allegations levelled against him by his accusers, was appointed by President Muhammadu Buhari in line with the EFCC Act.
We wish to state with high sense of responsibility that if the media report on the matter is true, it is dead on arrival as the appointment of the EFCC boss is clearly spelt out in section 2(1)(a)(i-ii) of the EFCC Act 2004.
For the avoidance of doubt, the said section states as follows –
“(1) The Commission shall consist of the following members-
(a) A Chairman, who shall-
(i) Be the chief executive and accounting officer of the Commission;
(ii) Be a serving or retired member of any government security or law enforcement agency not below the rank of Assistant Commissioner of Police or equivalent.”
This is the position of the law guiding the operations EFCC as at today until the National Assembly amends the act. This will appear to be what the Salami Judicial Commission of Enquiry is setting out to do contrary to the terms of reference of the Commission which state as follows:
“The Judicial Commission shall inquire into-
(1) The Extent of Mis-management and Diversion of recovered Assets and Funds:
(a) Investigate, verify and review the recommendations of the Presidential Committee on Audit of Recovered Assets as it relates to the EFCC, with a view to ascertaining the complicity or otherwise of the Ag. Chairman, Ibrahim Magu in the mismanagement of the assets recovered by the Commission;
(b) Identify avenues through which the recovered assets are dissipated and seized, recovered, forfeited (Interim and Final) assets are valued, managed, disposed or mismanaged with a view to ascertain compliance or otherwise with extant laws, regulations, processes and procedure;
(c) Review the existing procedures on the management of the seized, recovered and forfeited assets (interim and final) and proffer Standard Operational Procedures for the management of seized, recovered and forfeited assets;
(d) To determine whether moveable or immoveable assets including funds or cash recovered during his tenure, whether locally in Nigeria or abroad are being kept safely in a manner as to preserve their original value;
(i) Identify the location of all moveable or immoveable assets, funds or cash that are under interim or final forfeiture based on administrative or orders of the courts; and
(ii) Identify the Bank accounts to which recovered funds or cash were paid into and whether generated interest from the recovered funds or cash were properly accounted for.
(e) Whether all the assets could be properly accounted for by the Ag. Chairman and take measures to –
(i) Confirm, if any, of the assets has been diverted to the benefit of the Ag. Chairman, his family, relation, friends or favoured staff; and
(ii) Recover any of such diverted assets, funds or cash, if any and recommend, if the funds should be returned back to the EFCC or appropriate government agency, entities or individuals.
(2) Investigation into the Abuse of Office and Non-Compliance with Official Directives
To investigate and report on the existence or otherwise of dereliction of duty and abuse of processes and procedure against the Ag. Chairman as it relates to his conduct on the following matters:
(i) Investigation of P&ID and determine what happened when the case was first referred to him in 2016 and high profile local and international cases inclusive of the case of Dieziani Alison Madueke and others;
(ii) Complaints by the UK National Crime Agency (NCA) in London;
(iii) Complaints of non-compliance with Court Order;
(iv) Complaints of non-compliance with procurement and financial management laws; and
(v) Non-compliance with Presidential and Ministerial directives.
(3) Audit the Account of EFCC as a Legal Entity in line with Public Service Rules, EFCC Act and other Extant laws. Audit the Assets and Finances of the EFCC as a legal entity from 2015 – 2020, with a view to ascertaining compliance or otherwise with procurement procedures of the EFCC in line with the provisions of the Procurement Act.
(4) Investigation into Personal Enrichment with the Assets Recovered
(a) To investigate and report on corruption and money laundering allegations involving the Ag. Chairman and Bureau De Change operators, as well as some of his associates; as per the intelligence reports and petitions.
(b) Work with any other persons, organization or corporate entity to achieve the objectives of the Terms of Reference and make any other observation and recommendations as may be necessary”.
We also understand from reports reaching us that the panel has continued to invite witnesses, about six weeks after our client has closed his defence. The invitation of witnesses (who have cases to answer and those who are being prosecuted by the EFCC) to testify behind my client and the verification of assets in his absence are patently illegal and offend the principle of fair hearing.
We are also raising serious objection to the panel’s desire to ask questions from the EFCC officials on the pretext that the EFCC under the watch of our client is usurping the functions of the Nigeria Financial Intelligence Unit (NFIU).
We wish to state for the records that the setting up of Anti-Money Laundering and Countering the Financing the Terrorism (AML/CFT) Unit by our client is to aid the work of the commission and not to usurp the functions of any agency.
We further wish to state that the AML/CFT unit was set up to aid and support the EFCC investigations and to be proactive in intelligence gathering, taking into consideration the constant allegations that the EFCC engages suspects without prior intelligence which affects and hampers proper investigation of cases.
We wish to state that this unit does not in anyway carry out the functions of the NFIU which is to receive information, analyse the information and disseminate the information to other law enforcement agencies. For the avoidance of doubt, the AML/CFT Unit does not collect suspicious transaction reports from banks but only collects threshold transaction reports as done by other law enforcement agencies like DSS, FIRS, CBN and the ICPC.
What the Egmont group frowns about is suspicious transactions which are the exclusive reserve of the NFIU to collect.
It is therefore misplaced to say that a law enforcement agency like the EFCC, having the sole mandate to investigate and prosecute money laundering and terrorist financing should not have access to financial information of suspects.
< br>We submit that anything to the contrary will only be diminishing the operations of the EFCC.
We wish to state that the setting up of the AML/CFT Unit is one of the strategies that Magu has put in place to enhance the operations of the EFCC.
We therefore state that our client should rather be commended and not castigated.
It is instructive to state that the AML/CFT Unit does not inspect nor regulate the banks and has never done anything with the banks to suffice the same.
It is also important to state that the NCA in the UK in 2019, under its program to support anti-corruption agencies in Nigeria, trained 45 officials of the EFCC at a cost of 4000 pounds per official.
It was the idea of NCA that this unit be set up to give support to the EFCC investigations department.
If the operations of the unit will work contrary to the protocols of the Egmont group or FATE, there is no way the UK government would have advised the EFCC to establish this unit talk less of training officers to work in the department.
Ahead of the submission of the panel’s report to the President and against the background of deliberate leakage of some of its recommendations to the press in a determined effort to nail our client at all cost, we raise the following concerns:
▪︎First, why will the panel sit in private when the instrument signed by the president specified public sitting?
▪︎Why will the panel take evidence from witnesses without oath when the instrument specified that all witnesses must be sworn on oath?
▪︎Why will the panel undertake verification of recovered assets Nationwide in the absence of Magu, the main subject of enquiry?
▪︎Why will the panel refuse to give copies of allegations to Magu inspite of repeated demands by counsel?
▪︎Why would Magu be excluded from some of the proceedings of the panel?
▪︎Why was Magu detained for 11 days when he had not been indicted?
▪︎Who ordered the detention of Magu when Salami said he was not responsible for Magu’s detention?
▪︎Why was he sitting there when it was obvious he had no control over the proceedings?
▪︎Why will a panel that started first as investigative committee suddenly graduate into a panel and later a judicial commission of inquiry without any instrument to back up the change in nomenclature?
▪︎Why will Magu be forced to answer to anonymous petitions, copies of which were not served on Magu by the panel?
▪︎Why will the panel, an inferior Tribunal, entertain cases pending before the Federal High Court, Court of Appeal and the Supreme Court when it lacked powers to sit as an Appellate Court?
These are some of the illegalities of the panel that are incurable. We had also raised consistently other concerns about the operations of the panel.
1. Manner of Arrest
2. On the 9th of August 2020, I had cause to write to the Salami-led panel as follows
“We note that the terms of reference do not authorize the detention of our client who was taken into custody for ten days after his appearance before the Judicial Commission of Inquiry on 6th July 2020.
We observe that the chairman had clarified that the detention was not at the instance of the judicial commission of inquiry. We urge this distinguished commission to note this infraction of our client’s fundamental right to liberty and make appropriate recommendations deprecating this development to the appointing authority”.
3. Lack of access to documents
4. The circumstances surrounding the detention of Mr. Ibrahim Magu did not allow him the opportunity to prepare and access documents in defence of the allegations against him, and this you will agree with me, Your Excellency, negates the principle of fair hearing and constitute a gross violation of our client’s fundamental human rights.
5. The commission had consistently denied ordering the detention of our client and maintaining that such detention was without its authority. The damage unleashed on our client by this development can better be described than imagined.
6. Denial of Copies Of Allegations
7. We observe that our client is the principal subject of the judicial commission of inquiry not only in relation to his person but also connected to the office he occupied at the time of the inquiry and thereby making our client the principal suspect in the proceedings. In the circumstances, our client is entitled to be served with the copies of the allegations against him or at best a copy of the terms of reference of the judicial commission of inquiry immediately upon the commencement of this proceedings or timeously upon his appearance before this judicial commission of inquiry on the 6th of July 2020. In spite of the repeated request by our client and his counsel, the instrument embodying the terms of reference was not served on our client until 8th of August 2020 (35 days) after the sitting of the judicial commission of inquiry. Thus:
8. Our client has been denied the opportunity of timeously raising objection to and challenging the composition of the commission membership, assuming he would have had any.
9. Our client’s constitutional right of being afforded adequate opportunity of preparing for his defence to those allegations has been violated.
10. Delayed service of Terms of Reference
11. The terms of reference of Hon Justice Salami judicial commission of inquiry were not served on our client until 35 days after the commencement of sittings by the judicial commission of inquiry. The panel started sitting without the knowledge of my client (Ibrahim Magu). My client was arrested and ushered before the panel on Monday 6th July 2020 while the instrument establishing the panel was made available to our client on Saturday 8th of August 2020.
12. Exclusion of Our Client From Initial Stages Of The Proceedings Of The Panel
13. Notwithstanding that our client was the subject of inquiry, our client was denied participation in the initial stages of the proceedings during which period the panel took evidence from several witnesses and admitted several exhibits in his absence in violation of constitutional provisions. Our client was only allowed participation in the proceedings a few days after his release from unauthorized detention. This contention is verifiable from the records of proceedings of the judicial commission of inquiry. Specifically, our client and his counsel were excluded from the proceedings of 11th, 12th, and 13th of July 2020 amongst others in spite of presence at the venue of the sitting. In all the days of exclusion from the proceedings of the judicial commission of inquiry, witnesses were called, testified, interrogated and documents tendered and admitted in the proceedings in the absence of our client and his counsel.
It should be emphasized that the nature of allegations against our client is a criminal. Consequently, his right under the Constitution to fair hearing ought not to have been crassly violated in the circumstances so far demonstrated by the Commission
14. Non- Affirmation of Witnesses On Oath
15. The other issue critical as provided by the Tribunal of Inquiry Act 2004 and the nature of these proceedings being one of Judicial Commission of inquiry is mandatorily to administer oath on witnesses before evidence of such witnesses are taken in the proceedings.
16. Section 5(b) of the TRIBUNAL OF INQUIRY ACT 2004 provides as follows “THE POWER TO REQUIRE SUCH EVIDENCE TO BE GIVEN ON OATH AS IS REQUIRED OF A WITNESS TESTIFYING BEFORE A MAGISTRATE’S COURT.
17. We observed that oaths were not administered on all the witnesses who gave evidence before the judicial commission of inquiry throughout its sittings.
18. Entertainment Of Pending Cases Before Superior Courts
19. Contrary to the status of the inquiry as an inferior tribunal, this commission entertained cases pending before superior courts of record and took testimonies from witness es accused of corruption and currently standing trial before various courts in Nigeria.
20. Failure to Issue Subpoenas By the Judicial Commission Of Inquiry
21. In spite of valid requests for the issuance of subpoena on material witnesses by our client, the judicial commission of inquiry refused blatantly to issue such subpoenas on the affected witnesses thereby denying our client fair hearing in the course of his defence in the proceedings.
22. Our client had to close his defence without being allowed to call material witnesses in support of his case as all witnesses listed in the subpoena made by our client to the judicial commission of inquiry were either refused by the judicial commission of inquiry or failed to appear in the case of HAGF and the Chairman of PCARA respectively.
23. Lack of Access to Case Files and Petitions against our client
24. Our client was denied the opportunity of accessing material case files and petitions against him throughout the proceedings
25. Our client was only allowed to access exhibits tendered in the proceedings few days to the commencement of his defence.
26. Biased Constitution of The Judicial Commission Of Inquiry
27. As admitted by the Honourable Attorney General of the Federation Mr. Abubakar Malami, the allegations leading to the establishment of the judicial commission of inquiry, was as a result of reports from law enforcement and security agency. Notwithstanding the above membership of the judicial commission of inquiry was constituted mainly by our client’s accusers including membership of the office of the Honourable Attorney General of the Federation, thereby raising significant issues of fair hearing against our client.
28. Refusal of HAGF Mr. Abubakar Malami SAN And Chairman Of PCARA Mr. Mohammed Nami To Testify In Spite Of Issuance Of Subpoena By The Judicial Commission Of Inquiry. This implies:
29. Failure of HAGF to Justify Allegations against Magu
30. Refusal of Chairman PCARA to appear
31. Similarly the Chairman of Presidential Committee on Audit of Recovered Assets (PCARA) Mr. Mohammed Nami also defied the subpoena issued by the judicial commission of inquiry in spite of service of same on him by the judicial commission of inquiry.
32. Based on the foregoing, the foundation upon which the allegations against our client rested collapsed because the main accusers refused to appear to justify the wild allegations against our client.
33. Role of Magu and suspended EFCC staff in the P&ID case
34. Contrary to the impression given to His Excellency, Magu and some of the suspended key staff of EFCC played commendable role in the investigation of the P&ID case.
35. This has been confirmed by the recent UK judgement.
We are particularly alarmed about recent developments. About six weeks ago, our client concluded his defence. Between that time and now, a lot has happened. First, the panel embarked on verification of assets nationwide in the absence of our client. Verification of assets is part of evidence gathering and can be likened to a visit to locus-in-quo.
Section 207(2) of the CPA provides that “The accused shall be present at the view”. The accused must be present at the locus. If an inspection of the locus is undertaken and the accused person is absent, this is an irregularity. If the accused suffered miscarriage of justice as a result of this irregularity, an appeal court will set aside a conviction…” see identical provisions contained in CPC, s. 243 and proviso (ii) to Evidence Act Sec. 76.
Secondly, there are also reports that the panel continues to call witnesses and take evidence even when our client had concluded his defence and in the absence of our client without being given the opportunity to confront and challenge the veracity of such evidence.
Based on the foregoing, the fundamental principle of fair hearing to which our client is entitled to has been crassly and fundamentally violated.
The foregoing are for the attention of the appointing authority and the Nigerian public.
Magu’s lawyer questions credibility of Justice Ayo Salami’s panel, listing allegations similar to those Magu was always accused of