To be frank, I am one of those who supported Ibrahim Magu, Acting Chairman of the Economic and Financial Crimes Commission, EFCC, against the Nigerian Senate when the later failed to confirm him substantive Chairman over alleged ‘security’ report that emanated from the State Security Services, SSS last year. But after what has transpired since then, and especially how the EFCC has handled the Malabu oil scandal, I must admit that I am having a rethink about the competence of the man at the helm of Buhari’s anti-graft agency.
At first when I read in the news that Abubakar Malami, the Attorney-General and Minister of Justice, in a letter to President Muhammadu Buhari and to Magu advised that the case against the accused persons in the Malabu oil deal be dropped, I was shocked beyond words. How could the AGF of an administration that came to power on the promise to fight corruption advise the EFCC to drop prosecution in what is unarguably the most scandalous oil deal Nigeria has seen.
But after careful and more meticulous scrutiny of the exchanges between the AGF and the EFCC, I felt scandalised that the EFCC could fault the AGF’s argument on the strength of its case against the people it is holding as the accuse in the scandal. How can the EFCC ignore such sound legal opinion from the AGF? I had agonised to rationalise the EFCC’s decision to ignore Malami’s legal advisory without coming up with much. The only explanation I found handy is that Magu is on an ego contest with the AGF!
In the letter to Magu , the AGF states that having fully examined the entire case file forwarded to hs office by the EFCC, he requested that the anti-graft agency “reconsider the charge in relation to the composition of the parties, the offences, the proof of evidence and the case summary in view of the fact that nothing in the proof of evidence appear to have directly linked the parties to the offences as charged.”
The AGF went further to argue that the proof of evidence is unlikely to support the charge of fraud, conspiracy and money laundering against the accused in the case. Reasons being that there is nothing to show that the parties charged were at all times working together to forge CAC documents and use same for the purpose of divesting the shares of the complainants, and thereafter enter into settlement agreement with the FGN and other parties to take delivery of the proceeds of sale of OPL 245.
The AGF also argues that there was nothing in the proof of evidence to support the critical charge of money laundering against the accused. This, in his opinion, makes it unrealistic for the prosecution to prove the elements which include illicit funds, attempt to conceal/concealment of illicit funds, transfer of such funds through various channels to introduce same as legitimate funds in financial institutions. It is the view of the Senior Advocate of Nigeria that without the express proof of these elements, the charge of money laundering may be unsustainable.
Malami also queried the reason why some persons critical to the case were not charged. One of such persons was the Company Secretary of Malabu Oil and Gas Limited(name withheld), who was instrumental in the filings of all CAC forms that fraudulently changed the Directors and the share structure of the company.
The EFCC was also asked to note the AGF’s view that the Public Officer Protection Act CAP P41, Laws of the Federation of Nigeria,2004 limits liability of public officers to a period of 3 months following the acts which are complained of unless if the acts were not within the mandate of the functions of the public officer. And in view of the claim by the accused that the acts were authorised by the 3 presidents before the current administration, the AGF suggested the EFCC should cover such eventualities in its investigations.
I did not see anywhere in the letters where the AGF said the EFCC should drop the case. Rather, the concluding part of the letter to the EFCC states that “On the above grounds, I am of the considered view that there is the need to consolidate on the charges and the matter be thoroughly investigated especially regarding the allegations of wrong-doing in connection with the $1.1 billion in order to satisfy the constituent elements of offences. You are also to take steps to urgently file an application for a worldwide mareva injunction and or the forfeiture of the assets of the beneficiaries of the $1.1 billion pending the conclusion of your investigation in the areas above stated.”
In fairness to Magu, he admitted in his reply that the AGF’s observations and recommendations on the need to strengthen the evidence in support of the charge were valid, and that the prosecution would act as advised. But that appeared to be a way of just waving off the AGF and shutting him up. The case has continued with the staus-quo.
And on the persons not charged along with the accused, Magu says the company secretary of Malabu was not charged because he agreed to be used as a prosecution witness while the other ones could not be traced.
Magu’s defence on the AGF’s view on Public Officers Protection Act with regard to the case was also weak. You don’t have to be a lawyer to understand how the defence who could use that provision to evade charges. But Magu states that 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 in under the exception provided in section 2(a) of the Public Officers Protection Act.
This provision, in my view, offers very thin support to the prosecution’s case. The view of the AGF that EFCC’s investigations should have covered all eventualities that may arise is to me a more acceptable and reasonable legal argument.
If the EFCC does not want to bungle this case the way it had bungled other corruption cases, it must defer to the AGF, which is actually the chief prosecution officer of the Federal Republic of Nigeria.