The actions of Nigeria’s Attorney-General and Minister of Justice,
Abubakar Malami, has culminated in a Katsina State High Court
terminating the corruption trial of three former officials of the
Katsina State government.
The three former officials — Nasiru
Ingawa (former special adviser on Sure-P to former Governor Ibrahim
Shema), Abdulazeez Shinkafi (former director of finance and account at
the Katsina State Sure-P department) and Bello Bindawa (former chief
store officer in the Katsina State civil service) were prosecuted for
allegedly mismanaging N5.7 billion Sure-P funds.
SURE-P, acronym
for Subsidy Reinvestment and Empowerment Programme, was established in
January 2012 by the administration of former President Goodluck Jonathan
to reinvest savings from fuel subsidy removal on critical
infrastructure projects and social safety net programmes with direct
impact on ordinary Nigerians. Billions of naira were given to state
governments for the purpose.
The officials, who were directly in
charge of spending the money sent to Katsina, were investigated and
charged by the Independent Corrupt Practices and other Related Offences
Commission (ICPC), which accused them of fraud, and of contravening
sections 12,19 and 26 of the Corrupt Practices and other Related
Offences Act 2000.
But on November 27, Justice Maikaita Bako of
the Katsina State High Court terminated the case and discharged the
accused persons due to poor prosecution of the case by the Katsina State
Government to which Mr. Malami curiously handed over the matter for
prosecution.
THE CASE AND THE TWISTS
In October 2017, the
ICPC, on behalf of the federal government, filed a 17-count charge
bordering on fraudulent mismanagement of Katsina State SURE-P fund
against Messrs Ingawa, Shinkafi and Bindawa and arraigned them before
Katsina State High Court 3.
However, on October 25, 2017, the Katsina
State Attorney General, Ahmed El-Marzuqat, notified the court that the
state government was taking over the prosecution of the accused persons
from the ICPC.
Mr. El-Marzugat further informed the court that Mr.
Malami had already given his office a fiat to take over the prosecution
of the case.
The federal attorney-general apparently did not
inform the ICPC before shoving the anti-graft agency aside and handing
over prosecution of the case to the Katsina government, which has a
political interest in the matter.
At the October 25, 2017
hearing, ICPC’s prosecuting lawyer, Nosa Omohigbo, resisted the attempt
by the Katsina State government to take over the case.
ICPC Head
Office.He told the court that the ICPC had already concluded
investigation and that the Commission had established prima facie cases
against the accused and that handing it over to Katsina would jeopardise
prosecution and negatively affect the fight against corruption.
The ICPC lawyer said the commission had enough evidence from its investigations to establish culpability of the accused person.
Mr
Omohigbo further said it was improper for the Katsina State government
that has political interest in the matter to seek fiats to try the
accused persons, who he described as politically exposed persons who
jumped ship from their previous political party, the opposition Peoples
Democratic Party, to the ruling All Progressives Congress.
MR MALAMI’S FIAT
In
taking over the case, the Katsina State government relied on a generic
authorisation granted it by Mr. Malami to assume prosecutorial powers
over federal offences commited within its jurisdiction.
The
authorisation is dated July 7, 2017, but some critics believed the
document was backdated to create the impression that it had no
relationship with the corruption case involving Mr. Ingawa and his
co-accused which began in October that year.
The justice minister
said in the letter to the Katsina State Attorney-General that he was
granting the fiat in exercise of the powers conferred on him by Section
174 (1) of the Constitution (as amended).
Section 174 of the Nigerian Constitution empowers the Attorney-General of the Federation to:
(a)
institute and undertake criminal proceedings against any person before
any court of law in Nigeria, other than a court-martial, in respect of
any offence created by or under any Act of the National Assembly; (b)
take over and continue any such criminal proceedings that may have been
instituted by any other authority or person; and
(c) discontinue at
any stage before judgement is delivered any such criminal proceedings
instituted or undertaken by him or any other authority or person.
Authorisation under section 174 of the constitution of Fed Rep of
Nigeria 1999.The section also provides that “The powers conferred upon
the Attorney-General of the Federation under subsection (1) of this
section may be exercised by him in person or through officers of his
department” and that “In exercising his powers under this section, the
Attorney-General of the Federation shall have regard to the public
interest, the interest of justice and the need to prevent abuse of legal
process.”
Lagos-based lawyer, Jiti Ogunye, believes the handing
over of a case commenced by the ICPC to the Katsina government is an
abuse of prosecutorial powers.
Authorisation under section 174 of the constitution of Fed Rep of Nigeria 1999.
“The
ICPC ought not to be robbed of its prosecutorial powers before the
court,” Mr. Ogunye said. “The ICPC is an agency of the federal
government established by law and charged with the powers to investigate
and prosecute cases. It is more familiar with the evidences to be
tendered before the court.
“So I find it abnormal that the case
was handed over to the Katsina government which had no commitment to
successfully prosecute the case right from the beginning.”
A FIAT AND THE RESULTANT POWERPLAY
Based
on the fiat obtained from Attorney General Malami, the Katsina State
government launched an elaborate scheme to terminate the case and free
the accused persons who had earlier defected from the PDP to the APC.
The
state government adopted two tactics to frustrate the case – poor
prosecution through repeated requests for adjournments and the desperate
search for another fiat to terminate the case.Initially, the matter
dragged on in court for almost a year over the disagreement between the
ICPC and Katsina government on who between them should prosecute.
But
when the matter was heard on October 23, the state’s Solicitor-General,
Abdulsalam Sabiu, told the court that the office of the Attorney
General had directed the release of necessary legal documents from the
office of the ICPC to the Katsina State government. He said the ICPC
complied with the directive and released all the documents to the office
of the AGF on October 18.
Mr Sabiu added, however, that at the
point of releasing the documents to the state government, Mr Malami
travelled out of Nigeria on official assignment. Based on this
development, the Solicitor-General asked for adjournment.
Justice
Bako then adjourned the case to November 27 for continuation of trial.
But when the case resumed on that day, a counsel to the state
government, Aminu Ibrahim, told the court the state government could not
continue with the case because it had still not obtained the case file.
He, therefore, appealed for an indefinite adjournment.
Responding,
the judge, apparently frustrated by the seemingly unending adjournments
repeatedly sought by the state government (prosecution), simply
delivered a short ruling terminating the case and discharging the
accused persons.
Reporters in court during the hearing said
Katsina officials beamed with smiles and nodded in satisfaction as
Justice Bako delivered her ruling, suggesting that was the kind of
outcome they desired. One reporter said he overheard the accused persons
thanking the prosecution for the good job they did in freeing them.
Meanwhile, the Katsina Attorney-General had also pursued a second option to terminate the case.
In
an August 28, 2018 letter to Mr Malami, Mr El-Marzuq requested a fiat
“to discontinue criminal proceedings against the accused persons and
turn them to state witnesses in respect of charge No.
FHC/KT/26C/2017
FRN Vs Ibrahim Shema.” Mr Shema is a former governor of Katsina, and
the state government, as part of its political battle with the
politician, has instigated several cases against him. Mr Ingama and his
colleagues are now to be deployed as prosecution witnesses against Mr
Shema.
Former governor of the state, Ibrahim Shema [Photo: pulse.ng]
Mr
El-Marzuq had to request permission to discontinue the ICPC case
against Mr Ingawa and his colleagues because the initial fiat that
empowered him to take over prosecution of the case also forbade him from
discontinuing it without express approval from the Attorney-General of
the Federation.
But despite knowing that Katsina was plotting to
discontinue the matter or provoke the judge to strike it out, Mr. Malami
failed to act to halt the slide. He failed to respond to the August 28
letter written to him by the state government despite being reminded
through another letter dated October 30.
Justice Bako struck out
the case on November 27 for want of diligent prosecution. Two days
later, November 29, Mr Malami wrote the Katsina attorney-general saying
the ICPC should be allowed to continue the prosecution of the case. But
that was after the damage had been done — the case had been terminated
and the accused persons freed. Yet Mr. Malami claimed his role in the
matter was misrepresented.
Olubusola Olawale, an aide to former
Governor Shema, described the federal attorney general’s belated letter
as “an afterthought, a cover-up to create a false impression that he was
not part of the judicial charade shamelessly executed by the Katsina
State government.”
Governor Aminu Masari of Katsina State
Mr.
Ogunye, the Lagos lawyer, summed up what played out in Katsina as a
“deliberate mismanagement of the case to ensure it fails.” He advised
the ICPC to appeal Justice Bako’s ruling and push for a restart of the
case at the high court.
The spokesperson of the ICPC, Rasheedat Okoduwa, did not answer or return calls over two days when our reporter sought to enquire from her if the anti-graft agency would push to refile the case.
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