How Court of Appeal affirmed our powers to investigate – Obono-Obla

Okoi Obono-Obla is the chairman, Special Presidential Investigation Panel on Recovery of Public Property (SPIP). In this interview, he explained, among other things, how the Court of Appeal affirmed the panel’s powers to investigate rather than strip it of prosecutorial powers. Excerpt: There was a court decision that reportedly stripped the SPIP of prosecutorial powers. […]

Okoi Obono-Obla is the chairman, Special Presidential Investigation Panel on Recovery of Public Property (SPIP). In this interview, he explained, among other things, how the Court of Appeal affirmed the panel’s powers to investigate rather than strip it of prosecutorial powers. Excerpt:

There was a court decision that reportedly stripped the SPIP of prosecutorial powers. What has been done concerning this?

 The judgment of the Court of Appeal in the case of Tijjani Musa Tumsah vs Federal Republic of Nigeria and Ibrahim Musa Tumsah delivered on the 5th November, 2018 never stripped the panel of prosecutorial powers.

The presiding judge, Honourable Justice Hussein Mukhtar, resolved the three issues in favour of the appellant (the Tumsahs) and set aside both decisions of the High Court of the Federal Capital Territory Abuja made on 6 December, 2017 and the ruling delivered on 27 February 2018.

All the other judges who sat in the panel of the Court of Appeal agreed with the lead judgment. One of them made a passing remark that the panel under the EFCC Act lacks prosecutorial power to initiate interim forfeiture proceedings in the High Court of the Federal Capital Territory, Abuja.

In jurisprudence, judges in the course of writing of judgments make passing comments which is not relevant to the issue they have been asked to determine. The comment by one of the judges that by reason of Section 28 and 29 of the EFCC Act and Section 1, 2, 3 and 4 of the Recovery of Public Property (Special Provisions) Act, 2004, read together, ‘the panel lacks prosecutorial powers to initiate proceedings for forfeiture for assets or properties vested in the citizen in the FCT High Court is what we call an obiter in law. It is not the reason for the decision. It is not the position of the Court of Appeal in the case.

The decision only says that the FCT High Court does not have the jurisdiction to grant an application for interim forfeiture of the assets of somebody that the panel is investigating. The decision rather affirmed that the panel has the power to investigate.

The panel has appealed some aspects of the decision which it feels the Court of Appeal erred in order to develop the law in that aspect of the case.

Accordingly, on June 3, 2019, Honourable Justice John Tsoho of the Federal High Court, Abuja in a case filed by the panel against Senator Albert Bassey Akpan ruled that the panel has prosecutorial powers and does not require the consent of the Honourable Attorney General of the Federation and Minister of Justice before it can file charges against anybody. You can see that Justice Tsoho did apply or follow the decision of the Court of Appeal in Tumsah’s case because it is not the authority that the panel cannot prosecute.

Some people say the SPIP is a duplication of function of other anti-corruption agencies. Is there any rivalry with other agencies?

Those people who suggested that the panel is a duplication of other anti-corruption agencies, are with due respect, ignorant. They are absolutely wrong. The panel is not a duplication of any sort. Look at the powers the panel has created by Section 2 of the Recovery of Public Property (Special Provisions) Act. The panel has power to investigate the assets of public officers who have corruptly enriched themselves or have acquired assets beyond their legitimate earnings or who have abused their office or who have violated the Code of Conduct provisions of the Constitution or who have contributed towards the economic adversity of the Federal Republic of Nigeria. The panel has power to investigate assets of private people who are fronts of public officers or who have allowed themselves to be used as fronts by corrupt public officers to conceal assets.

Look at the EFCC and ICPC establishment Acts, you would discover that the panel doesn’t conflict with their functions or amounts to a duplication.

It is not a crime for laws to sometimes overlap. When we experience overlap of cases we swiftly and carefully sort that out and transfer to the appropriate agencies.

In any case, the United Nations Convention Against Corruption has encouraged countries like Nigeria which have problem with corruption to establish multiplicity of agencies to address it. Brazil (a country with so much socio-economic similarities) has used the model suggested by the United Nations Convention Against Corruption to fight corruption. The panel plays a complementary role to other anti-corruption agencies.

The law establishing the SPIP seems to be a very old law. How come it was after your panel was set up that there was awareness and action?

The Recovery of Public Property (Special Provisions) Act is the oldest anti-corruption legislation in the country. It was enacted on the 31st December 1983 when the then Major General Muhammadu Buhari took over power in a military coup. That is the law that General Buhari used to fight corruption squarely, resolutely and drastically till he was toppled by some reactionaries on 26 August 1985. Thereafter, successive administrations left the law in the limbo because they did not have the will to fight corruption. But in August 2017, President Buhari exhumed the law and constituted the panel.

So, the fact that the Act is addressed as the Recovery of Public Property (Special Provisions) Act 2004 does not mean that it was enacted in 2004. It simply means that in 2004 the law was re-enacted. The law has been there since 1983. It was there when Babangida, Abdulsalami, President Obasanjo, Yaradua, and Jonathan were there. But President Buhari has the gut, the will to fight corruption squarely, so he went and exhumed it.

What impact has the panel been able to make since its inauguration especially vis-a-vis the Change Agenda and now the Next Level Agenda?

The work of the panel is impactful and is heavily felt. This is why a lot of people are jittery or have a phobia for the panel and used all manner of chicanery to kill the panel.

You recall how the last session of the National Assembly tried to kill the panel. The House of Representatives even went to the extent of passing a resolution that the president should disband the panel. It even witch-hunted me by purporting to investigate me personally and mounted a smear campaign against me. If the panel is not working and has not made any impact, nobody will feel discomfiture about the work it is doing.

What are some of the major challenges of the panel and how do you plan to overcome them?

When we started there was virtually no structure on ground for the panel to do its work. So, we had to start from scratch. This is because the last time the panel existed was way back 1984 to 26 August 1985. So, for close to about 32 years or so, the panel was never used to fight corruption. We did not have a structure; no administrative structure no financial structure. We had to source for staff from the Nigeria Deposit Insurance Corporation (NDIC), the police, ICPC, and the National Intelligence Agency (NIA) etc.

We didn’t have money. But we have achieved the modest we have achieved because of our dedication and commitment. We have not completely overcome some of the challenges the panel has faced; including attempts to interfere with our work, and trying to use the bureaucracy to frustrate us; trying to starve us of money.

Gladly, President Buhari has a policy of non-interference. It has encouraged us to brush aside spirited efforts or attempts by some people to frustrate us because of our independence and courageous approach to fighting corruption.

There were reports that you were suspended in 2017 by the Vice President. Yet, you have remained active ever since.

My answer is capital NO. It was all the handiwork of mischievous people using a section of the media to distort or misrepresent facts. Some people are uncomfortable with my independence and courage. Nobody has ever suspended me. The president has never suspended me. The vice president has never suspended me since I was appointed in July 2017 because I have done nothing to warrant suspension.