Adoke, MTN and anti-corruption war

This is coming on the heels of unending ripples over the $180 million Haliburton bribery scandal, the sale of the controversial oil bloc OPL 245 to two oil firms (Malabu Oil deal) and allegations of incompetence and abuse of office.Today, the Economic and Financial Crimes Commission (EFCC) courtesy of a gazette the “EFCC (Enforcement) Regulations, […]

This is coming on the heels of unending ripples over the $180 million Haliburton bribery scandal, the sale of the controversial oil bloc OPL 245 to two oil firms (Malabu Oil deal) and allegations of incompetence and abuse of office.
Today, the Economic and Financial Crimes Commission (EFCC) courtesy of a gazette the “EFCC (Enforcement) Regulations, 2010 No.61, Vol. 97” and dated 21 December, 2010 have been brought under the full supervision of the AGF because any investigation conducted by the commission in respect of any case involving money or assets of value exceeding N50 million (high profile cases) must be referred to the office of the AGF by the anti-graft agency before prosecution.   
In a recent interview with Daily Trust, President of Public Interest Lawyers League (PILL), Barrister Abdul Mahmud said that the decision of the AGF to prosecute Farouk Lawal over the oil subsidy scam was borne out of intense pressure. Other major stake holders in the justice sector have alleged that the AGF is frustrating the anti-corruption war.
It would be recalled that such allegation of misuse of powers and abuse of office had once been levelled against a former AGF and Minister of Justice, Mr. Michael Aondoakaa, who was accused of shielding corrupt powerful Nigerians from being prosecuted.
Among the offences levelled against Aondoakaa was that he attempted to cripple other anti-corruption institution like Economic and Financial Crimes Commission and Independent Corrupt Practices and Other Related Offences Commission by directing them to forward their case files to his office for approval.
Adoke without doubt is one of President Goodluck Jonathan’s most powerful ministers and his office is created under Sections 150 (1) which provides that “There shall be an AGF who shall be the Chief Law Officer of the Federation and a minister of the government of the Federation”.
By Section 174 of the 1999 constitution, the AGF has the powers to commence and undertake, take over and continue or discontinue (nolle prosequi) any criminal proceedings against any offender.
The power of the AGF to institute criminal proceedings against any person is an absolute one. Where two or more persons commit an offence, the AGF has the discretion as to who to prosecute. This discretion is unfettered as he has no obligation to give reasons for exercising his discretion in a particular way. Because of this unfettered discretion, the courts of law do not have the power to question it.  It is exercise of his discretion according to his own judgment and the dignity of the office cannot be subject to quest.
 In fact, he is not subject to any control in so far as the exercise of his powers under Section 174 of the constitution is concerned excerpt for public opinion and the reaction of his appointer.
In a petition against the AGF by Advocacy for Societal Rights Advancement and Development Initiative (ASRADI) a Non-governmental Organisation (NGO) to President Goodluck Jonathan, the National Assembly, the EFCC, the Solicitor-General of the Federation and Permanent Secretary, Federal Ministry of Justice, a copy of which was made available to our correspondent, entitled “ refusal of the AGF to prosecute MTN Nigeria Communications Ltd for conspiracy, forgery and perversion of the course of justice as recommended by the police”, ASRADI alleged that the AGF was interested in the matter.  
Executive Director, ASRADI, Sam Ayodeji Popoola mentioned that earlier in the year, a Police Report indicted MTN for allegedly suppressing evidence it (MTN) availed law enforcement and security agencies when Justice Ayo Salami’s case went before the Special Investigative Panel set up by the National Judicial Council (NJC) to investigate allegations of corruption against the former President of the Court of Appeal.
In its report, the police alleged that MTN deliberately withheld components of the call logs it released to the National Security Adviser and the SSS, as opposed to those it earlier forwarded to “Area G” Command of the Nigerian Police.
It was alleged that MTN tampered with the call logs of Justice Ayo Salami, several  chieftains of the defunct Action Congress of Nigeria (ACN)  and the party’s legal representatives to conceal their telephone interactions while they had matters pending before the Court of Appeal. Consequently, the report recommended that MTN should be prosecuted for criminal liability.
Part of the petition reads : “We ASRADI are at a loss as to why, nearly five months after the release of the Police Report in question, the AGF and Minister of pustice has failed, refused or neglected to act on the Report’s motif: charge MTN to court.
Section 174 (3) of the 1999 Constitution (as amended) states: In exercising his powers under this section, the AGF shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.
Would the AGF be acting in the public interest, the interest of justice and the need to prevent the abuse of legal process if he fails to prosecute MTN as the Police have recommended?
One of the issues up for debate in the ongoing constitution amendment is the separation of the office of the Attorney General of the Federation (AGF) from that of the Minister of Justice.
Currently, the justice minister is also the AGF at the federal level while, the Commissioner for Justice is also the AG at the state level.
The thought of splitting the office was prominent under Olusegun Obasanjo’s administration and partly, that of the late  Umaru Musa Yar’adua where a former AGF and Minister of Justice, Michael Aondoakaa, played some ignoble roles in the polity, contrary to his dutiful role of upholding the constitution, hence the agitation had begun to gather momentum.
The implication of the diffusion is that the AGF will concentrate on directing the prosecution of the federal government cases.
Adoke who most Nigerians thought would defend the office he occupies has said that there is nothing to lose if the office is split into two.
A Senior Advocate of Nigeria, Mallam Yusuf Ali, said, “I have never supported and will never support splitting of the office of Attorney-General and Minister of Justice. As far as I am concerned you are creating more bureaucracy and spending unnecessarily.”
Chief Ladi Williams, SAN, aligned with Ali’s view, saying,  “I don’t think there is need to split the office, if you do that you are only going to create unnecessary crisis. Where will the duties of Justice Minister and the AG begin and end?”