Posted by By NKEMJIKA on
The Chairman of the Economic and Financial Crimes Commission (EFCC), Mallam Nuhu Ribadu, is reported to have been boasting of how he would humiliatingly arrest, detain and prosecute most state governors who will lose their gubernatorial immunity on May 29, 2007.
• The Orji Kalu case
The Chairman of the Economic and Financial Crimes Commission (EFCC), Mallam Nuhu Ribadu, is reported to have been boasting of how he would humiliatingly arrest, detain and prosecute most state governors who will lose their gubernatorial immunity on May 29, 2007. One of those Ribadu is said to have vowed to bring to the courts in chains, in the name of fighting corruption, is Chief Orji Uzor Kalu, the out-going governor of Abia State. While this essay supports the arraignment in court of any corrupt governor through the due process of law, it is difficult to see how any rational mind could include the name of Orji Kalu in any EFCC corruption list of public officials.
In the first place, the EFCC does not have the powers, under the 1999 constitution, to investigate the public accounts of Abia State Government. Section 128(2b) of the constitution is quite clear that 'a State House of Assembly shall have powers to direct or cause to be directed an inquiry or investigation into… any matter or thing to… expose corruption, inefficiency or waste in the disbursement or administration of funds appropriated by it." Unless words no longer have their true meanings, there is no situation in the use of the English language where 'EFCC" is synonymous with or can be taken to mean the same thing as 'State House of Assembly."
In any case, Section 7(1) of the EFCC Act, 2004 is quite clear that the 'Commission (EFCC) has power (only) to cause investigations to be conducted as to whether any person, corporate body or organization has committed an offence under this Act or other law relating to economic and financial crimes."
Of course, Abia State Government, headed by Orji Kalu, is not a person or corporate body or organization. Abia State government does not need a Certificate of Incorporation to establish its existence, as any corporate body or organization is required to do by law. The Abia State Government that Orji Kalu heads today is a group of people who control or direct the affairs of the state. It is therefore a clear usurpation of the powers of the Abia State House of Assembly for the EFCC to purport to have investigated the public accounts of the State on the basis of which Nuhu Ribadu is said to be warming up to drag Orji Kalu to court.
As far as the 1999 constitution is concerned, it is the Auditor-General of Abia State who has the power to look into the public accounts of the State, and submit his report to the State House of Assembly, which has the powers to initiate investigations as to whether Governor Kalu mismanaged public funds. Section 125(2) of the constitution says 'the public accounts of a State and all the offices and courts of the State shall be audited by the Auditor-General for the State… who shall submit his report to the House of Assembly of the State concerned, and for that purpose the Auditor-General shall have access to all the books, records, returns and other documents relating to those accounts." Given the position of the constitution on this matter, can anybody point to any investigative report by the Abia State House of Assembly that indicted Orji Kalu over his management of public funds?
More importantly is that it is even the ICPC, not the EFCC, that has been set up by law to fight corruption in pursuance of Section 15(5) of the constitution which demands that 'the State shall abolish all corrupt practices and abuse of power." The Corrupt Practices and other Related Offences Act, 2000 was enacted to prohibit and prescribe punishment for corrupt practices and other related offences.
The Independent Corrupt Practices and other Related Offences Commission (ICPC) is therefore vested with the responsibility for the investigation and prosecution of offenders. Since Section 125 and 128 of the constitution have not been amended, and the ICPC Act, 2000 has not been repealed, where did EFCC derive the powers to look into the public accounts of Abia State on the basis of which Ribadu is said to be wringing his hands to legally strangulate Orji Kalu after May 29, 2007?
Nigeria is not a lawless society.
It is the legal and legitimate duty of the ICPC, not the EFCC, to fight corruption even in high places or quarters. Section 52(1) of the ICPC Act, 2000 says 'when an allegation of corruption or anything purporting to contravene any provisions of this Act is made against the President or the Vice-President of Nigeria or against any State Governor or Deputy Governor, the Chief Justice of the Federation shall, if satisfied that sufficient cause has been shown upon an application on notice supported by an affidavit setting out the facts on which the allegation is based, authorize an Independent Counsel (who shall be a legal practitioner of not less than fifteen years standing) to investigate the allegation and make a report of his findings to the National Assembly in the case of the President or Vice-President and to the relevant State House of Assembly in the case of the State Governor or Deputy Governor.
" What this means is that on the issue of investigating Governor Kalu over allegations of corruption, it is the ICPC, through an Independent Counsel appointed by the Chief Justice of Nigeria, (not the EFCC), that has the powers to do so. As at this moment of writing, Nuhu Ribadu is not the chairman of ICPC.
The truth is that there is no law in Nigeria today that has given Ribadu's EFCC the powers to question the financial activities of Orji Kalu as the governor of Abia State . Section 5(2a) of the constitution says 'Subject to the provisions of this constitution, the executive powers of a State - shall be vested in the Governor of that State and may, subject as aforesaid and to the provisions of any law made by a House of Assembly, be exercised by him either directly or through the Deputy Governor and Commissioners of the Government……." What this means is that as governor of Abia State , Orji Kalu has the final say on all matters relating to the cost of contracts and the expenditure and movement of public funds approved in the Budget by the State House of Assembly. In effect, apart from the Auditor-General of Abia State, the State Assembly and an Independent Counsel appointed under the ICPC Act, no other person or institution, including Ribadu and his EFCC, has the powers to question the financial decisions and activities taken by Orji Kalu as governor of Abia State.
No doubt, Orji Uzor Kalu, after May 29, 2007, can be legally arrested and constitutionally prosecuted on the basis of the investigative reports of any Independent Counsel appointed in pursuance of the ICPC Act, but not in respect of any reports produced by the EFCC.
There is no law in Nigeria today that has empowered Nuhu Ribadu, or the EFCC to question or sit in judgment over Orji Kalu's practical expression of his 'executive powers" guaranteed in Section 5(2a) of the constitution. Therefore, any attempt by Ribadu to arrest, detain and prosecute Orji Kalu after May 29, 2007, on the basis of an illegal and unconstitutional EFCC report purporting to have investigated and unearthed the
mismanagement of Abia State funds will amount to a vicious assault on the 1999 constitution. No law abiding citizen will allow Nuhu Ribadu get away with such illegal acts because he is not above the law.
• Nkemjika is a co-author of the book, 'oil exploration in northern Nigeria: problems and prospects".