The actions of Nigeria’s Attorney-General and Minister of Justice, Abubakar Malami, has culminated in a Katsina State High Court terminating the corruption trial of three former officials of the Katsina State government.
The three former officials — Nasiru Ingawa (former special adviser on Sure-P to former Governor Ibrahim Shema), Abdulazeez Shinkafi (former director of finance and account at the Katsina State Sure-P department) and Bello Bindawa (former chief store officer in the Katsina State civil service) were prosecuted for allegedly mismanaging N5.7 billion Sure-P funds.
SURE-P, acronym for Subsidy Reinvestment and Empowerment Programme, was established in January 2012 by the administration of former President Goodluck Jonathan to reinvest savings from fuel subsidy removal on critical infrastructure projects and social safety net programmes with direct impact on ordinary Nigerians. Billions of naira were given to state governments for the purpose.
The officials, who were directly in charge of spending the money sent to Katsina, were investigated and charged by the Independent Corrupt Practices and other Related Offences Commission (ICPC), which accused them of fraud, and of contravening sections 12,19 and 26 of the Corrupt Practices and other Related Offences Act 2000.
But on November 27, Justice Maikaita Bako of the Katsina State High Court terminated the case and discharged the accused persons due to poor prosecution of the case by the Katsina State Government to which Mr. Malami curiously handed over the matter for prosecution.
THE CASE AND THE TWISTS
In October 2017, the ICPC, on behalf of the federal government, filed a 17-count charge bordering on fraudulent mismanagement of Katsina State SURE-P fund against Messrs Ingawa, Shinkafi and Bindawa and arraigned them before Katsina State High Court 3.
However, on October 25, 2017, the Katsina State Attorney General, Ahmed El-Marzuqat, notified the court that the state government was taking over the prosecution of the accused persons from the ICPC.
Mr. El-Marzugat further informed the court that Mr. Malami had already given his office a fiat to take over the prosecution of the case.
The federal attorney-general apparently did not inform the ICPC before shoving the anti-graft agency aside and handing over prosecution of the case to the Katsina government, which has a political interest in the matter.
At the October 25, 2017 hearing, ICPC’s prosecuting lawyer, Nosa Omohigbo, resisted the attempt by the Katsina State government to take over the case.
He told the court that the ICPC had already concluded investigation and that the Commission had established prima facie cases against the accused and that handing it over to Katsina would jeopardise prosecution and negatively affect the fight against corruption.
The ICPC lawyer said the commission had enough evidence from its investigations to establish culpability of the accused person.
Mr Omohigbo further said it was improper for the Katsina State government that has political interest in the matter to seek fiats to try the accused persons, who he described as politically exposed persons who jumped ship from their previous political party, the opposition Peoples Democratic Party, to the ruling All Progressives Congress.
MR MALAMI’S FIAT
In taking over the case, the Katsina State government relied on a generic authorisation granted it by Mr. Malami to assume prosecutorial powers over federal offences commited within its jurisdiction.
The authorisation is dated July 7, 2017, but some critics believed the document was backdated to create the impression that it had no relationship with the corruption case involving Mr. Ingawa and his co-accused which began in October that year.
The justice minister said in the letter to the Katsina State Attorney-General that he was granting the fiat in exercise of the powers conferred on him by Section 174 (1) of the Constitution (as amended).
Section 174 of the Nigerian Constitution empowers the Attorney-General of the Federation to: (a) institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court-martial, in respect of any offence created by or under any Act of the National Assembly; (b) take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and (c) discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.
The section also provides that “The powers conferred upon the Attorney-General of the Federation under subsection (1) of this section may be exercised by him in person or through officers of his department” and that “In exercising his powers under this section, the Attorney-General of the Federation shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.”
Lagos-based lawyer, Jiti Ogunye, believes the handing over of a case commenced by the ICPC to the Katsina government is an abuse of prosecutorial powers.
“The ICPC ought not to be robbed of its prosecutorial powers before the court,” Mr. Ogunye said. “The ICPC is an agency of the federal government established by law and charged with the powers to investigate and prosecute cases. It is more familiar with the evidences to be tendered before the court.
“So I find it abnormal that the case was handed over to the Katsina government which had no commitment to successfully prosecute the case right from the beginning.”
A FIAT AND THE RESULTANT POWERPLAY
Based on the fiat obtained from Attorney General Malami, the Katsina State government launched an elaborate scheme to terminate the case and free the accused persons who had earlier defected from the PDP to the APC.
The state government adopted two tactics to frustrate the case – poor prosecution through repeated requests for adjournments and the desperate search for another fiat to terminate the case.
Initially, the matter dragged on in court for almost a year over the disagreement between the ICPC and Katsina government on who between them should prosecute.
But when the matter was heard on October 23, the state’s Solicitor-General, Abdulsalam Sabiu, told the court that the office of the Attorney General had directed the release of necessary legal documents from the office of the ICPC to the Katsina State government. He said the ICPC complied with the directive and released all the documents to the office of the AGF on October 18.
Mr Sabiu added, however, that at the point of releasing the documents to the state government, Mr Malami travelled out of Nigeria on official assignment. Based on this development, the Solicitor-General asked for adjournment.
Justice Bako then adjourned the case to November 27 for continuation of trial. But when the case resumed on that day, a counsel to the state government, Aminu Ibrahim, told the court the state government could not continue with the case because it had still not obtained the case file. He, therefore, appealed for an indefinite adjournment.
Responding, the judge, apparently frustrated by the seemingly unending adjournments repeatedly sought by the state government (prosecution), simply delivered a short ruling terminating the case and discharging the accused persons.
Reporters in court during the hearing said Katsina officials beamed with smiles and nodded in satisfaction as Justice Bako delivered her ruling, suggesting that was the kind of outcome they desired. One reporter said he overheard the accused persons thanking the prosecution for the good job they did in freeing them.
Meanwhile, the Katsina Attorney-General had also pursued a second option to terminate the case.
In an August 28, 2018 letter to Mr Malami, Mr El-Marzuq requested a fiat “to discontinue criminal proceedings against the accused persons and turn them to state witnesses in respect of charge No. FHC/KT/26C/2017 FRN Vs Ibrahim Shema.” Mr Shema is a former governor of Katsina, and the state government, as part of its political battle with the politician, has instigated several cases against him. Mr Ingama and his colleagues are now to be deployed as prosecution witnesses against Mr Shema.
Mr El-Marzuq had to request permission to discontinue the ICPC case against Mr Ingawa and his colleagues because the initial fiat that empowered him to take over prosecution of the case also forbade him from discontinuing it without express approval from the Attorney-General of the Federation.
But despite knowing that Katsina was plotting to discontinue the matter or provoke the judge to strike it out, Mr. Malami failed to act to halt the slide. He failed to respond to the August 28 letter written to him by the state government despite being reminded through another letter dated October 30.
Justice Bako struck out the case on November 27 for want of diligent prosecution. Two days later, November 29, Mr Malami wrote the Katsina attorney-general saying the ICPC should be allowed to continue the prosecution of the case. But that was after the damage had been done — the case had been terminated and the accused persons freed. Yet Mr. Malami claimed his role in the matter was misrepresented.
Olubusola Olawale, an aide to former Governor Shema, described the federal attorney general’s belated letter as “an afterthought, a cover-up to create a false impression that he was not part of the judicial charade shamelessly executed by the Katsina State government.”
Mr. Ogunye, the Lagos lawyer, summed up what played out in Katsina as a “deliberate mismanagement of the case to ensure it fails.” He advised the ICPC to appeal Justice Bako’s ruling and push for a restart of the case at the high court.
The spokesperson of the ICPC, Rasheedat Okoduwa, did not answer or return calls over two days when our reporter sought to enquire from her if the anti-graft agency would push to refile the case.