A Senior Advocate of Nigeria, Maduabuchi, SAN, has said that President Bola Tinubu ought to have directed the Attorney-General of the Federation to procure the withdrawal of the order freezing the Osun State Government’s account rather than issuing a public directive under his own signature, describing the public route as a step taken to score a political point.
Speaking in a television interview with Charles on Thursday, the senior lawyer said that while the President has no power in law to control the anti-corruption agencies, the discretion available to public officers, and the peculiar circumstances of an imminent election, made his intervention understandable, even as he faulted the manner in which it was done.
Asked whether the President’s insistence that he has always respected the independence of the EFCC could be reconciled with a public directive to the Commission to return to court and vacate an order it lawfully obtained, the senior advocate was categorical.
“In the first place, the President does not have the power under any law to control the ICPC or the EFCC. None of them,” he said.
He explained the rationale: “They are supposed to be the dogs that fight corruption, and the people that do corruption are members of the executive, national assembly and all that. So it would be wrong for us to say here that the person you are supposed to chase has powers to direct you how to chase him.”
The senior advocate, however, said the matter could not be resolved by strict legality alone, pointing to the discretionary latitude enjoyed by public officers.
“But you see, even in law there’s something called discretion. Discretion is not found in any law. It is that power given to a public officer — judges, presidents and all public officers generally — to do what, in the opinion given certain peculiar circumstances prevalent at that point, [is necessary],” he said.
He added that perception drives public reaction more than fact. “So if, in the circumstances, what the President did, it might be pardonable, because perception is deeper than truth. How people see things is worse than what actually is.”
He illustrated the point with the suspicion already in circulation. “So if people begin to say the President asked the EFCC to go and seal the account of Osun State Government so that they won’t have money to prosecute [the election] — whether the President did or not, whether he knew about it or not, has been denied, will be immaterial. What is important is what you hear in every marketplace: ‘You see, we told you.’ That is why law allows public officers to have a discretion to act the way they feel is necessary, provided it is just in the circumstances.”
Asked whether the episode amounted to executive interference in an independent statutory agency or the legitimate exercise of supervisory authority within the executive branch, the senior advocate said the President’s quarrel was with timing alone.
“Let us look at what the President said. The timing was what he quarrelled with. He never said don’t investigate, don’t close accounts. He said the way you did it is wrong. Remove it now. After the elections, go back and continue your work. I don’t look at it as being unnecessary interference.”
Pressed on whether directing an agency to withdraw a matter already before a competent court raises concerns about respect for judicial processes, he answered: “No. No. Given the circumstances that we find ourselves in, he couldn’t allow that post-no-debit to continue with respect to the accounts of Osun State Government. How the public has seen it — it caused a big uproar. Even me, when I heard it, I said, ‘How can?’”
He continued: “So when he stepped in and said, ‘Please hold your fire, let us finish our elections,’ then you go back and continue your work. If he had said don’t investigate, that’s a different thing. But when he says, ‘Please, I’m the President, I don’t want people to feel I’m interfering with you or the electoral process, please wait; the moment we finish elections, if you like, go and arrest [whoever]’ — to me, the President acted like a statesman. He acted like a statesman in the circumstance.”
The senior advocate agreed, however, that the President would have been better served by quiet consultation than by a public directive bearing his personal signature.
“I agree with you, Charles. You see, nobody advises Tinubu more than IBB, but you don’t hear it on television. He doesn’t write letters,” he said, referring to former military President Ibrahim Babangida. “If he wants to tell the President anything, he knows how to tell him. He knows how to see him.”
He then stated his central objection: “The President, in my opinion, ought to have asked the Attorney General to do it — and not he himself. But you know politicians; he wants to score a political point, that when they did this the President came out and said so.”
He said the public route carried an unavoidable implication. “Just like you said, it depicted interference, or possibility of interference, or it simply established that the man does it whenever he likes or when it suits his own purposes. And that is why you have an Attorney General, who supervises the EFCC.”
He set out how the matter ought to have been handled: “You just tell the Attorney General, ‘Mr. So-and-so, I don’t think I like this, especially given the proximity to an election. See what you can tell them to do.’ Then silently they will ask one lawyer, go and file a motion; somebody tells the judge, take it the next day. They take it the next day and publicise that it has been discharged, because it got too close to an election. We would have had the same effect. But, well, if I would say, maybe they wanted a political point.”
Asked whether the President may have unintentionally created a precedent for future administrations to intervene whenever the actions of investigative agencies become politically inconvenient, the senior advocate said interference is not new, only that it is usually kept out of sight.
“Well, I wouldn’t tell you a lie. We know that once in a while the President’s top officials do interfere with the anti-corruption agencies. We know that. It is simply that this one blew up in the open. He made it public. Otherwise they intentionally made it public, like I said, to get some political point.”
He noted the reaction from supporters of the government. “Everybody knows, just like a pastor said he was very happy when the President said so. And that’s a political point. That’s what the President wants — the opposition to him now praising the President. That was just why they did it.”
Describing what he called the proper route once more, he said: “Otherwise the proper thing is, ‘Mr. [Attorney General], are you hearing what I’m hearing? Please ask them to do this.’ And he calls the chairman and says, ‘How could you be embarrassing everybody?’ Then the director of legal services will go and discontinue the case, and that’s all. And that is the order.”
He said the practice extends beyond the anti-graft agencies. “I am not an ostrich. I don’t pretend. Presidents do interfere with the activities of anti-corruption agencies. Police yes, they do. When a superintendent of police says, ‘I got orders from above’ where is above? Heaven? So it’s not heaven. I don’t know, unless you know the telephone number of heaven.”
Asked to place the political calculation in context, the senior advocate pointed to perceptions about the President’s stake in the state.
“You see, Osun State has a special connection with the President perceived; that’s what people think. Some people say he wants to win Osun State by all means. So many things are being said about that. So when this issue arose, the first thing people thought was that the President wants to muscle [the state] so that he does not lose that state, that is special to him.”
He said the public intervention was designed to rebut that impression. “So for him to show people, ‘Look, it is not true,’ he came and did it publicly. Otherwise, more serious things have been done by [aides]. There are people who would ordinarily [speak]. But when the President comes out, you see the weight, the punch in it, because it is the President himself who came out to do it. That is why I said it is because of scoring a point; otherwise it had no business. It was just a phone call, and it will be removed.”
Invited to state the principle that should drive the Commission’s work, the senior advocate agreed that it must be evidence rather than timing, but said discretion still governs execution.
“Assuming we find that a governor did something very, very wrong four days to his election will we leave him? You don’t leave him. You begin the investigation. The only thing is, like I said, because of the discretionary powers public officers have, they might investigate and leave the man and be watching him closely.”
He cited a familiar pattern. “Just like there are some governors who, when they hand over power, are arrested at the airport. It is because somebody has been monitoring them. That is the kind of thing one will expect them to do. Look, we can’t touch this man now, but we have to monitor him. We know he did this, but let’s monitor him, because if we touch him now they will say the EFCC is working for the President. That is the kind of discretion I had expected the chairman of the EFCC to [exercise].”
On whether there should be a legal convention barring anti-corruption agencies from taking major action immediately before elections except where national security or public safety is at stake, he was dismissive.
“No, no, no. You can’t make such a law. One, how do you define what is a major issue before an election? Anything can be a major issue — that you scratched my car could be that you wanted to kill me, and it is a major issue.”
He said the answer lies in how discretion is exercised. “Discretionary powers given by convention to public officers should be used the way they are meant to be — which is, for judges, judicially and judiciously; for public officers, with a high sense of justice and responsibility. Once they are able to do that, you find there would be none [of this].”
He drew the distinction with an example. “It’s only when the chairman of a local government whose population is very high you arrest him two days to election so that he doesn’t know what happens at the election that is when people begin to complain. But if you are suspecting that somebody embezzled money and it’s three days to election and you have evidence, why would you [not] arrest him?”
Turning to the effect of the restriction on ordinary workers, the senior advocate said the Commission had been insufficiently circumspect.
“But then, if you freeze the account of Osun State, the messenger in the office whose salary you have frozen did not embezzle any money,” he said. “These are things you must be very circumspect about.”
He argued that the Commission had targeted the wrong money. “If you like, you say 11 billion. Those monies went to company accounts, from what I read. Catch those accounts. If they sent it to Maduabuchi and [you] hold the account ‘Mr. Somebody, would you come and tell me what this money is doing here?’ and if I cannot explain, they hold the money, because I didn’t bring it in [lawfully]. That is what we mean by non-conviction-based forfeiture, and it will be forfeited to the government.”
He continued: “But coming to hold [an entire] state under this President is not proper, in my opinion. What they should have done, since they said the monies were being sent to companies and so on, is go after [those]. Leave Osun State. The one that is in the account is not missing. Go after the one that has left the account of Osun State and make sure that they are not dissipated. But you leave those ones that have been removed from the account and you pretend that you want to protect the one that everybody is looking at.”
Asked what should worry Nigerians more through the lens of constitutional law the Commission’s decision to freeze the account days before an election, or the President’s decision to order it reversed the senior advocate said both.
“Both of them. You see, the EFCC showed a large measure of indiscretion. They behaved as if it didn’t matter, as if people don’t matter. Like I said, a messenger will need a salary at the end of the month, and you go and put a PND on it. What did he do? He couldn’t have frittered the billions you are talking about. So that was a large measure of indiscretion.”
Reminded that the restriction came through an order of court, he replied: “Yes. But it is the EFCC that went to court and said, ‘Give me this permission.’ If they didn’t ask the court, the court would not make the order. So why do it now, when you know that the repercussion will be terrible, monumental?”
He returned to the President’s role. “Like I said earlier, it is the President that exacerbated the whole thing. He needed not have made the statement. He needed to have people who work for him to have made that statement, and you don’t need to say it publicly. It is a question of calling somebody. Call somebody, and the next day you make sure that all the newspapers are there. And when they set aside the order, you make sure that all the television stations are there and the lawyer says, ‘We have looked at it and we think it is wrong to do this at this point because of the election, so we have vacated the order but that does not mean the end of our investigation.’ Short and simple. That would have saved us all this political point, interference and all that.”
In his closing assessment, the senior advocate located the controversy in a deficit of public trust.
“But the major thing, Charles, is that Nigerians do not trust their rulers. They don’t trust them. Otherwise, if Donald Trump says, ‘I didn’t know about it,’ Americans will believe him. Ordinarily, if an American president says something, the majority of Americans will believe him. If a Nigerian president says something regarding an election and politics, the majority of Nigerians will disbelieve you.”
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