I prosecuted Fela as a national duty – Philip Okala

Can you remember some of the cases you prosecuted at the Special Investigation Panel? Lawyers do not look at cases they only succeeded in, lawyers look at how they handled cases to the admiration of the ordinary man, because even if I am prosecuting, I am still a minister of justice. I am not supposed […]

Can you remember some of the cases you prosecuted at the Special Investigation Panel?
Lawyers do not look at cases they only succeeded in, lawyers look at how they handled cases to the admiration of the ordinary man, because even if I am prosecuting, I am still a minister of justice. I am not supposed to mislead any authority. As we go along I will tell you what I did. We even confronted the federal government on certain issues.
I prosecuted many cases especially those who returned from Saudi without declaring money. Some of them were to get down at Kano Airport but because of the Decree 7 that prohibited people from importing money, the aircraft took them to Lagos and at the airport, a lot  of the people who went to Saudi were illiterate, they did not know what we were talking about. So those of them who had money and did not declare were arrested but what was important to us was if the people actually understand the position of the law. Or were they aware that such law existed because it was while they were there that we started the prosecution, but a lot of them really went for Hajj.
 So these are people who did not even understand what Decree 7 was all about although people will say ignorance of the law is no excuse. But then if you look at the issues, at times you say that this person should be pardoned. Those were issues we faced and when we advised the federal government, the government agreed with us. Someone who came in with $25 and did not declare it, yes it is an offence, although law and morality do not go together you will see that you can forgive such people even if they are tried. That is why there is room for allocutus.

Could you tell us about Fela Anikulapo’s case which you prosecuted?
One celebrated case which I saw as a national duty was to prosecute my own friend, that was Fela Anikulapo Kuti. I went to Lagos in 1964 and we young men were following Fela from Kakadu Hotel. I lived in Surulere, so I became his fan because a lot of people admired him. In 1984 national duty bounced on me when Fela (who was travelling with members of his band) was said to have committed an offence under Decree 7 when he was traveling to UK with his band.
He was invited to UK to entertain his fans. He did not declare the foreign currencies found on him and so I was directed to prosecute him. When Fela was prosecuted we succeeded in establishing our case because when we took up Fela in cross examination, one question we asked him was: “That you Fela you are so popular and traveling to UK,  you have been to UK, USA and several other countries,  are you in a hurry that you cannot declare the foreign currencies?  He said yes. That was how l closed my case.
This case took me three months to prosecute because they were first asking of bail and I opposed it because he himself made a mistake in his affidavit when he said that he has been arrested by the police over 112 times and nobody refused him bail. I used one book, “Criminal Law in Action” where the author says that if you are a perpetual trouble maker, it is a good ground to refuse you bail. Because when they release you, you will go and commit another offence, so the best thing, according to the author is to keep you there. Again during the prosecution I tried to praise him for that.
We were not malicious in our prosecution because when the case was on, Fela sent people to Barclays Bank, London to come with his statement of account and he had so much money in that account, so all he needed was some money to take him from Heathrow Airport to town. Probably that was why he had that money on him but his offence was that he failed to declare.
When the statement of account came, the military said that we should increase the charges for keeping foreign account. It was  hectic for me but I stood my ground as the prosecutor. Buhari was Head of State, Idiagbon was Deputy, so we held a meeting. Buhari was not in that meeting but Idiagbon was there because he was the one supervising us.
 I said that this man voluntarily brought his statement of account, our own National Security Officer (NSO) should have done the job, he should have interrogated him in detention. I said that they should count me out of anything that could lead to persecution so I told them I was not going to add to the charges, even Ofodile, the then AGF came for that meeting because the military felt that it was an embarrassment to them for bringing his own account. So the issue of a prosecutor duplicating charges to me as a prosecutor and a lawyer, was an embarrassment.
Okoro Udogu who was the judge in that case went to Maiduguri prison and apologized to Fela. Why did Okoro Udogu apologize? When the judge pronounced Fela guilty, I expected Komi Osobu, Fela’s lawyer who was assisted by Falana, my good friend to plead allocutus, an allocutus in law is the pleading by a defence counsel to mitigate punishment. Like saying Fela is important to the society and that his fans will miss him etc.

But Osobu got angry and insulted the judge, so there was a big quarrel in court.
The judge should not have gone to transfer that annoyance from counsel to Fela. Because trial was not complete without allocutus. He should have asked Falana who was still then a very young lawyer, to take over. Because Komi Osobu and the judge were angry at the same time. If the allocutus was announced, the judge can acquit an accused person looking at the circumstances or recommend acquittal looking at his position in the society.
So after that judgment l had interaction with the judge and he realized that the trial was not complete without allocutus because of Fela’s position. That is why when he saw Fela at Maiduguri, he had to apologize to him because of his conscience. Then when IBB overthrew Buhari, Fela was released from prison and the judge was removed, saying that it was unethical to beg Fela in prison.
Buhari should have equally released Fela if proper allocutus were made or if the judge had recommended it.
I prosecuted my friend because it was a national duty and I disagreed that the charges should be increased.
The government of those days was not only Idiagbon, because Buhari himself took responsibilities for anything that happened. He was involved in everything. Now what Buhari is doing, is it Idiagbon that is assisting him? Two of them were serious, they meant well for this country and those of us that prosecuted also did our best. They associated themselves with what we did.

Apart from Fela’s case, which other celebrated case did you handle?
There was an opinion I also gave in the case of Mohammed Goni, former governor of Borno State  who was in Saudi when Buhari took over government. He said that he was coming back home because he did not commit any offence.
 He landed at Murtala Mohammed International Airport, Lagos, immediately the aircraft touched ground, our security men stormed the craft because they had the names of all the ministers and VIPs at that time under Shagari’s government. The security men took him from the aircraft and the next thing was that he found himself in Ikoyi prison for the same offence of non-declaration of currency.
 At Ikoyi prison he was accused of coming into Nigeria with various foreign currencies, so the next thing they thought was to prosecute him. At that time what was important was that we were giving legal opinion before prosecution and we don’t just rush people to court. So when they sent the file to me, my opinion was that the man did not commit any offence. The man was found in the aircraft and he was not a Nigerian yet, per se, secondly Decree 7 says failure to declare and when do you fail to declare? It is when you pass Customs Desk. If you pass Customs Desk and you do not declare, then they can arrest you, not when you lose your freedom. The man lost his freedom right from the aircraft. They did not allow him to pass through the Customs check point. So I said that the man did not commit any offence.
Those who were not prosecuting with us went wild. I said that the man was not in Nigeria and that is why I said he was not a Nigerian then.  But then Buhari and Idiagbon listened, because they said we had superior legal reasoning and their own was military. The man was immediately released. The NSO group was too nervous, why didn’t they follow him to the Customs Desk. If he had failed to declare, yes they would have arrested him there and there would be a prima facie case then. But this man was arrested right from the aircraft.