Anti-corruption war: Falana is wrong by Charlie Agbo

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Charlie Agbo
Charlie Agbo

Femi Falana’s opinion article entitled ‘As Corruption Fights Back’ published in a national newspaper (not The Easterner) dated 11 November 2015 was a direct affront on the constitutionally-guaranteed rights of three Nigerians whose identities are not contained, in line with his innuendo, in the body of this piece. In a surprising mix of law, facts and imprecise assumptions, Falana dealt an unfair cut to these Nigerians, one of whom is dead, the other a candidate in the just concluded governorship election in his state, while the third is a minister in President Muhammadu Buhari’s cabinet.

In the said piece, Falana contended, that ‘Some lawyers have continued to argue that persons accused of unbridled corruption or unjust enrichment are presumed innocent and therefore qualified to occupy positions of authority until they are found guilty by a competent court of law’. He continued by further stating that ‘Curiously, the ruling party, APC, has adopted the dubious legal argument. Hence it is fielding two governorship candidates who are standing trial for corruption while some persons accused of fraud and corruption have been appointed to positions of authority by the APC-led government’.

As a lawyer of considerable ranking at the bar, I have subjected this opinion to several legal, academic and jurisprudential interrogations and my verdict is that it is antithetical to the letter and spirit of the safeguards encapsulated in section 36(5) of the 1999 constitution to protect citizens undergoing criminal trials.

Falana further posited that ‘presumption of innocence, which inures in favour of criminal suspects, is not an immutable doctrine under the Nigerian criminal law…. Hence, Section 36(5) of the Constitution specifically provides that “nothing in this section shall invalidate any law by reason only that the law imposes upon such person the burden of proving particular facts.”

The proof of ‘particular facts’ is the reason several Nigerians including those alluded to above are in various courts and tribunals. In my view, therefore, Falana’s interpretation of this proviso does not shed any shred of weight off  the vitality, import, fundamentality and immutability of  section 36 (5). What the proviso is saying is that the accused has not been awarded a licence by this safeguard, nor has he been shielded from any law in consonance with the section. In effect, he is protected only to the extent that he respects all statutory inquisitions and has no right to choose which law he will respect in the proof of ‘particular facts’ in so far no such law is presuming him guilty.

In furtherance of the above, I hold that any act, no matter how well intentioned or ‘patriotic’ that prejudices an accused in a matter in court which carries the grave possibility of abridging his fundamental right to freedom of movement by way of conviction and imprisonment is in derogation of the express intendment of section 36(5).

The rule of law is beyond a funky catch phrase. And Falana knows this more than most Nigerians living or dead. It is both a command and an attitude that nations nurture and laboriously wait upon. Hence, in its effort not to mangle the innocent, the machine of justice sometimes risks allowing the guilty go free. That is why it is slow.

There is a haunting sense of déjà vu in Falana’s proposition. In 1984 when the Nigerian Bar Association boycotted military tribunals because they were perceived to be arbitrary, Gani Fawehinmi broke ranks with the association because he saw an opportunity to nail those whose cases he felt could not wait for the law. But Gani was wrong and the NBA was right. Several years after, Falana is betraying his own frustration with the law, the very tool he has deployed in the service of the people for the better part of his life.

And very unfortunately, In the foregoing regard, he is now prepared to allow a rejig of section 36(5) of the constitution to instrumentalise his desire, just like Fawehinmi before him to fast track the law even if it implies redacting obvious provisions of the constitution and substituting them with subsidiary legislations which imports are subject to questionable applications.

But matters of fundamental rights and the rights to fair hearing under our constitution are for first, second, habitual and perpetual offenders of the law. They are also for alleged murderers, rapists, terrorists, politicians, alleged looters of public treasury and above all for those caught in awkward circumstances that could predispose them to suspicions of guilt, when the opposite is probably the case. Therefore, the constitution has offered everyone a safeguard on an even, standard, neutral and immutable kiln to mount the scale of justice.

In celebrating the foregoing opinion, which has long received international flavour, Professor Wechsler, while enunciating his neutral principle (in constitutional law) postulates that it consists of two elements: content generality and equal applicability which he asserts, rest on “reasons quite transcending the immediate result that is achieved,” and applying to all parties equally, “whether a labor union or a taxpayer, a negro or a segregationist, a corporation or a communist.” And I dare add, a member of PDP, APC, APGA, LP, NUT, NLC, IPOB, and OPC etc. Postulated in 1959, this opinion is as potent today as it was several years ago.

The questions are, for Gani Fawehinmi: (the reader should note his immortality), did his decision to appear before military tribunals transcend the immediate that he intended to achieve, which was to nail the worst cases of corrupt officials? The answer in my view is no. And for Femi Falana: is his desire to abridge the rights of two gubernatorial candidates and a ministerial appointee facing corruption charges by having their party drop them transcending the immediate result that can be achieved? My answer is no.

The antecedent of indictments by political adversaries, particularly those that have undergone judicial review, is compelling enough to give any indictee the benefit of doubt in law, fact and true conscience in line with section 36 (5) until the law takes its course.
The reader should note that in 2007, a commission of inquiry set up by the Abia State government indicted 23 serving and former public officers. They were among others, then president Olusegun Obasanjo, Umaru Musa Yar’Adua, Dr Goodluck Jonathan etc. If the Falana prescription were applied by the PDP, none of these persons (with the exception of Obasanjo who was not contesting) would have been fielded for election.

Again, Godswill Akpabio, was recently invited by the EFCC on account of a petition by a lawyer in his state. Hate him or love him, Akpabio defined in Akwa Ibom what gubernatorial power could do with state resources. With his theatrics and oversize sense of drama, he has without a doubt altered the architectural geographics of the earth space known as Akwa Ibom forever. Yet if we go by Falana’s prescription, this democratic activist should not be availed of the safeguards provided by the constitution. He should step down as a senator to address the allegations against him!

Falana further betrayed his frustration with the pace of the law when he wrote that ‘the NBA had set up an Anti-Corruption Commission to identify members of the legal profession involved in promoting corruption within the justice system. But neither the NBA Anti-corruption commission nor the Disciplinary Committee currently headed by Mr. Daoudu has been able to identify the corrupt members of the legal profession. Indeed, it is public knowledge that some senior lawyers have since been recruited to frustrate the prosecution of corrupt elements in the society’. (Emphasis mine).

But what is ‘public knowledge’ or ‘common knowledge’, and what are their evidential values? This mindset is at the heart of the issue I have with Falana. In my opinion under the title ‘Still on NBA’s Misplaced Priorities’ published at the back page of Thisday, Friday, March 11, 2011, I had written that ’..Justice Samson Uwaifo had admonished the legal community to find a solution to problems associated with common knowledge. In throwing this challenge, His Lordship was not unmindful of the associated risk. He knew more than most of us that the law has long left the realm of the arts and humanities for the sciences. Yet science, art or religion, it is acknowledged that some information, true in several respects, reside both in public and judicial domains, yet the law stairs helplessly and naively at them’.

But does the foregoing situation, regrettable as it is, encourage arbitrary solutions? It is an offence for anybody let alone a senior lawyer to be ‘recruited to frustrate the prosecution of corrupt elements in the society’.  It is also an offence to omit to report a crime to the law enforcement authorities. Falana’s dilemma stems from the fact that public or common knowledge is a grotesque basis for prosecution in Nigeria and indeed anywhere else. Otherwise, why has he not reported at least one of such lawyers to the police for prosecution? Why must it be the exclusive duty of the NBA to do so?

Falana does not need the NBA, nor does he need the special cooperation of the enforcement authorities. He has obtained more fiats than most of his colleagues at the bar. But can he dare dock his colleagues on the strength of ‘public knowledge’? This question is as good for the lawyers as it is for those in whose interest this rejoinder was written.

* Agbo, a lawyer and Chief Executive Officer, Legislative Competencies, wrote from Abuja.

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