Last Thursday, Arise TV‘s Morning Show hosts, Reuben Abati, Tundun Abiola, and Rufai Oseni interviewed Inibehe Effiong, a human rights lawyer, and Dele Ogun, a lawyer and ‘brother’ of Nigeria’s former finance minister, Kemi Adeosun, on the ruling of the Federal High Court, Abuja. The court held that Mrs Adeosun did not breach any law by being appointed a minister in 2015 without participating in the National Youth Service Corps scheme. Below is the interview as transcribed by PREMIUM TIMES’ Ifeoluwa Adeniran.
Reuben Abati: What are the big issues in this matter with regards to what looks like the vindication of former minister of finance, Kemi Adeosun, and then with regards also to the relevant provision of the 1979 Constitution, the 1999 Constitution, and also, I think Section 13(2) of the NYSC Act?
Inibehe Effiong: I want Nigerians to appreciate the issues very clearly. The first submission I want to make to you is that cases are determined based on the pleadings before the court, based on the averment made before a judge. Cases are not determined necessarily based on public perception.
I am saying that to make the point that, to the best of my knowledge, the issues submitted for determination before Hon. Justice Taiwo Taiwo of the Federal High Court in Abuja was whether or not Kemi Adeosun was required to possess a National Youth Service Certificate or an exemption letter as it were to make her eligible to occupy a ministerial position. And also whether, given that she was not a Nigerian citizen at the material time, whether she was even eligible to enrol in the NYSC.
But the saga, the conundrum, the controversy and the scandal that surrounded the NYSC certificate as it relates to Kemi Adeosun was that there was allegation reported by a credible media organisation that she forged an exemption certificate, which is a criminal offence.
But the case before the federal high court was not to determine whether indeed she committed forgery or not. That question remains undermined because the Attorney-General of the Federation, for reasons best known to him, exercised his prosecutorial discretion by deciding not to charge the former minister for forgery. So let that point be understood clearly.
And I’m saying that because you asked the question whether this was a vindication and I submit to you that I do not see the judgment of the Federal High Court as a vindication because what was material, what led to her resignation, was allegation of forgery, which has not been determined, which she has not been tried for, which no evidence has been adduced because the AGF has decided not to prosecute her.
My reaction is that we will have to look at this judgment in the light of the fact. To begin with, when you look at Section 2 of the NYSC Act Cap N84 (2004), the requirement for calling up corps members is statutorily provided, including that one has to be less than 30 years at the point of graduation either in Nigeria or abroad.
Now, you must also go further to look at Section 11 of the NYSC Act, which provides that anybody that had enrolled in the Service has to be issued a certificate of participation.
You go further to Section 12, which provides that any person seeking employment must be required by the employer to produce his NYSC certificate. Again, you take it to Section 13 that prescribes for certain offences and penalties, including forgery of certificates under the Act, which is the issue that relates to Kemi Adeosun.
Lastly, I refer you to Section 17 of the NYSC Act, on exemption from participation from the scheme. And, of course, a candidate is required to make application to the national security council through the national directorate to be exempted and when that determination is made, that person will be issued what is called certificate of exemption.
The issue is this, Kemi Adeosun made a point that she submitted her certificate during her ministerial screening to the SSS, to the National Assembly, nothing was found wanting. That she didn’t believe she had forged it. But do not forget, that in her resignation letter to the President, she did concede, she did make an admission that her certificate was found not to be genuine. So, to that extent, I think with profound respect to the former minister, it is an insult on the sensibilities of Nigerians for her to now come today that she has been vindicated.
Because as I have clarified, the issue before the court was not forgery, because the AGF in exercising his prosecutorial discretion decided not to prosecute her.
Now, let me take you to the Constitution, what is the requirement for a person to be made a minister? Again, I refer you to Section 147 of the Constitution that has essentially three conditions. The person must be 25 years of age; the person must be sponsored by a political party, which he must also be a member; the person must be appointed by the president; and must also have, at least, SSCE or its equivalent.
Those requirements are not expressly stated, but Section 147 says you can only be a minister if you are eligible to contest for the position of the House of Representatives.
Now Section 65 of the Constitution states the requirements to be a member of the House, which is what I have highlighted.
To that extent, the court is right in saying that she did not need NYSC certificate to be a minister because a political position is not really governed by labour law, it is not an employer-employee relationship. It is an elective or appointive position.
Abati: I get the point that you have made but, you also know, as an officer in the temple of justice that a court of law does not necessarily go on a voyage of discovery. It will deal with matters that are presented before it, and I think you have already made that point.
What was before the court was Kemi Adeosun trying to protect her reputation and if you look at Section 26 of the 1979 Constitution, at the time, the case was that as at that time she was not a citizen of Nigeria, she had British citizenship. By 1989, when she graduated at the age of 22, she was still not a Nigerian citizen.
You go to the 1999 Constitution, Section 25 states how you can be a citizen of Nigeria. But by the time she returned to Nigeria, after taking visas and all of that, the law has changed. But at the time she graduated, she was not a citizen of Nigeria. That was the position that the court talked about.
Dele Ogun:First of all let me make a disclosure, Kemi is my junior sister. So I put that on the record, but that doesn’t affect the legal issues that we are considering.
What the court clearly determined was that the NYSC law did not apply to her at the relevant time, so she was exempt from the law as a matter of fact and as a matter of law. That is very relevant to the issue of forgery because motive is a consideration.
Now, let’s move to the allegation of forgery which was made by the Premium Times and it was repeated by them even in this coverage of this judgment which they said “although Mrs Adeosun forged her NYSC certificate to be appointed as minister, the issue of forgery was not brought before the court as the federal government has refused to prosecute her.”
The simple reason why the government has not charged her or prosecuted her for forgery is that there was no forgery.
Now, let’s break it down for the members of the public, the starting point is this, she was entitled to the exemption certificate. The second point is this and that is what the judgment established. Vanguard Newspaper, 9th of July 2018, confirmed, they reported a statement issued by NYSC that Kemi did apply to them for an exemption certificate. So she was entitled and she applied for what she was entitled to.
Next fact, the certificate was procured for her by the Office of the Governor of Ogun State who, at the time, were looking to engage her services as the Commissioner of Finance for that state.
Next fact, the certificate was cleared by the State House of Assembly, the National Assembly and the Department of State Security prior to her employment at state and federal levels.
Now, coming to the issue of the basis of the allegation of forgery. Was there an investigation? Now, in her resignation letter, she said ‘I have today become privy to the findings of the investigation into the allegation made in an online medium that the certificate of exemption from the National Youth Service Corps that I had presented was not genuine.’ The reality was that that is what she was told at a meeting in the Vice President’s office that there had been an investigation and that the investigation found that her certificate was not genuine.
Was she issued with an investigation report? No, she was not. Has anyone seen that investigation report? No one has seen it. So, she was told orally that there had been an investigation and the finding was unfavourable. And it was in response to that statement, which she had no reason to doubt, that she decided that the honourable thing was to resign. But where is that investigation? It does not exist. And I can confirm that it does not exist because I acted for her when the Institute of Chartered Accountants of England and Wales decided to investigate the matter. Because, obviously, they heard allegation that a member of their institute had forged a document. These facts that I have presented to you are the very facts that I presented to them. They were surprised to hear that there was no written investigation.
Suffice to say that as we speak, Kemi Adeosun is still a proud member of Institute of Chartered Accountants, England and Wales. She would not have been such if they were not satisfied with the explanation that had been presented that there was no forgery.
Clearly, there are questions to be answered by the government. What happened to that investigation report, where is it? Given that it was confirmed that NYSC did receive an application from her for the exemption certificate, which this judgment just confirmed, that she was entitled to as matter of law and as matter of fact. What happened to that application? It does not make sense that somebody had submitted an application to the rightful body for an exemption certificate and that she received an exemption certificate through the office of the governor of a responsible state government and then it is said that it was forged. Absolute nonsense.
So, the government, I’m afraid, does have a case to answer. Let’s see the investigation report if it exists. But our evidence is that there was no investigation report.
Secondly, Premium Times definitely have a case to answer because if forgery is alleged, and it is a serious allegation, then it rests on the person making the allegation to substantiate that allegation. And the standard of the burden of proof, as my learned friend will know, is not on the balance of probabilities but beyond reasonable doubt. That is our case.
Tundun Abiola: Thank you Mr Ogun, and Kemi Adeosun resignation was honourable indeed. I have to ask you at this point that will she be bringing an action against Premium Times based on what you’ve said?
Ogun (Cuts in) Absolutely!
Abiola: My second question is for both of you, will you please sound a note of caution with regards to this court decision that was made in favour of Kemi Adeosun, lest we have Nigerians with dual nationality thinking that it applies to them as well. Some people might err in this regard. So I’d like you to please stress that, the both of you. But, first Mr Ogun, please answer the question with regards to the possibility of bringing an action against Premium Times.
Ogun: You could be assured that if an organisation, as I understand, they claim to be Nigeria’s leading newspaper for reliable breaking news and deep investigative reports about Nigeria. We’ve got to get away from this practice of trial by newspaper and media reports. Allegations must be substantiated and they have the responsibility now to substantiate the allegation which they’ve repeated that she forged a document.
Abiola: With regards to those who might err in thinking that this court judgment that applies specifically to the facts of Mrs Adeosun’s case might apply to them because they hold a dual nationality, I’d like you to address those people.
Ogun: The explanation to them is this: many were affected by these changes in the definition of who is a Nigerian citizen? The real detail is this, that she was a Nigerian citizen at birth, but she was striped of that Nigerian citizenship by virtue of the 1979 Constitution which prohibited dual citizenship unless you took the positive step within one year of attaining the age of 21 to surrender your foreign citizenship. She did not surrender her British citizenship and I suspect many of our diasporan people were in the same situation probably did not know about the change of the law and they certainly did not take the step of surrendering their British and American citizenships to keep the Nigerian one. And so, the same principle applies to them, they were similarly exempt from the NYSC law and they would have committed a criminal offence had they actually participated in the NYSC in circumstances where they were not eligible to do so. So, the principle is of general application.
Effiong: Let me just highlight who a citizen of Nigeria is by birth, I think that point needs to be made under the current constitutional arrangement. I’ll refer you to Section 25 of the Constitution that defines citizenship by birth under three heads. The first is that any person born in Nigeria before the date of independence, either of whose parents or grandparents were indigenous to any of the areas indigenous to Nigeria.
The second, if any person born after independence, that is after October 1st 1960, either of whose parents or whose grandparents were a citizen of Nigeria.
The third is any person born outside Nigeria either of whose parents is a citizen of Nigeria.
But I understand the point my learned friend has made regarding the definition of citizenship under the 1979 Constitution.
Now, here is the point, the NYSC Act came into existence, the commencement date for NYSC is June 1993 when it came into force. I do agree that by virtue of the judgment, the law has now been clarified to the point that those who were not citizens of Nigeria under the 1979 Constitution, who are in the same position with Kemi Adeosun may not necessarily be required, in fact, are not required to participate in the scheme.
But again, I will also advise and challenge media organisations, including Premium Times, to go to the Federal High Court, file an application to obtain the certified true copy of the processes filed, the originating summons filed by Kemi Adeosun and of course the counter-affidavit of the Attorney General of the Federation. Because the point my learned friend has made is important and I think Nigeria as a country deserves answers to the questions he has raised. Where is the investigation report?
If I understood what he is saying, he is saying that Kemi Adeosun applied for certificate of exemption, possibly based on a wrong advice, because the court has said she didn’t have to apply, but that what was eventually given to her was not a genuine certificate. In other words, somebody in between Kemi Adeosun and the NYSC forged and concocted a forged certificate. Who is that person? Because the brother also disclosed, thankfully, that the document was procured through the Ogun State government. Who is the official in the Ogun State government that forged or that procured this forged document for and on behalf of Kemi Adeosun?
If this is a government that fights corruption, if this is a government that pretends to have integrity, I challenge the Attorney General of the Federation, I challenge the Vice President because his office has also been mentioned, they have a responsibility to disclose to Nigerians who actually obtained that document and handed it over to Kemi Adeosun and tell us why that person is not on trial.
But let me also caution, that under Section 17 of the NYSC Act, exemption certificate is personal. The law does not give allowance for that certificate to be obtained by proxy. I do not agree entirely that Kemi Adeosun had no question whatsoever to answer. But I understand the point that has been made that she may have been misled, I do get that point. But whether she should sue Premium Times, my humble advice, free advice as a lawyer, is that I will advise her not to take that course of action. Because I believe strongly so that Premium Times will be availed by the defence of justification in the sense that what was published was true, the certificate has been shown not to be genuine. The question as to the investigation report. She actually resigned, in her resignation she conceded that she has been told the certificate was not genuine. And I want the brother to tell us, has Kemi Adeosun applied officially for a copy of that investigation report? She has a responsibility to apply for it. Let him also disclose to us, have they applied for that report as at today?
Rufai Oseni: Inibehe, two things. Number one, when we started this conversation you brought the case of forgery but when Dele Ogun spoke he’d been able to debunk that… It’s a little bit hazy for me now because if this passed through the Ogun State government, the House of Assembly in Ogun State, passed through our National Assembly, because she was screened. And passed through the screening of the DSS and none of these checklines discovered the fact that her certificate was forged, then there is something that more than meets the eyes.
Inibehe: I don’t think Nigerians should be surprised. The SSS, the police and the National Assembly have over time proven to Nigerians beyond reasonable doubt that they are more of political institutions than legitimate law enforcement agencies and I say that with all sense of responsibility. You couldn’t have had this not uncovered during their investigation, when they did fact checking, during their security clearance. What is the point of the security clerance? So it is not surprising. I think this is an embarrassment that they have to admit to, this is a shame that they have to own up to, because somebody has to take responsibility. But the crisis that we have in the country is that the policy of punishment, the policy of responsibility is not there. Nobody is being penalized, those who screened her have not been questioned, those who looked at that document have not been fired. Because we do not have a government today in this country that is genuinely interested in accountability, in transparency, and fighting corruption. That is my reaction to the issue and I hope they will own this embarrassment and own this failure on their part.
Oseni: Mr Ogun, did she (Kemi Adeosun) work anywhere in Nigeria before she picked up that appointment with Ogun State government as commissioner. And what were the terms? Was this NYSC exemption certificate required then? Secondly, there’ve been talks in some quarters that this is just political Italian job being done here, just to get her out of office. What’s your reaction? Because with this judgement, she can come back to become anything she wants to become in this country.
Dele Ogun: Let me quickly say, my learned friend keeps committing the fundamental error of saying that the document was forged. It is a plain fact, forgery has not been proved, it has not been established at all. It was never alleged by the government, it was alleged by Premium Times. There is no charge sheet alleging forgery and Premium Times reported that the certificate has been forged. And what I said to you is that various tiers have gone through the checking process, the state House of Assembly, the National Assembly, the Department of State Security. They would not have missed forgery if it was in fact forgery.
The explanation is this, the responsible department that should have confirmed they issued that certificate in response to the application. They admitted that they received an application for a certificate of exemption. What did they do with that application? Where is it? What happened to it? Because if you then have a certificate that emerges that looks authentic, when it comes from the office of the governor of one of our 36 states, there is no reason to doubt it.
So the allegation is completely baseless and my learned friend should desist from confusing the public in assuming that forgery has been admitted or established. What she said in her resignation statement was that she was told that there had been an investigation and that the certificate was not genuine. And what I have tabled for the audience, the public is this, if there was such an investigation that they did make that finding, I presume there was a forensic examination of the said document. The public are entitled to see it, it does not exist. And anybody who is said to have alleged forgery must prove it, you can’t put it at allegation alone and trial by media. There was no forgery. If there was forgery, she would not be, as we speak, a member of the Institute of Chartered Accountants of England and Wales.
Coming to your point about whether she had any employment before becoming Commissioner for Finance. Yes, she did. She did work in Nigeria. It was the responsibility of the employer to ask for the certificate of exemption.
One final point, because the responsibility rest on the employer to ask for NYSC certificate, in the circumstance where somebody is exempt, they will similarly ask for a certificate for exemption. So the reason she applied was that although she knew she was exempt from the law, the law did not apply to her. By virtue of that obligation on the employer to ask for the NYSC certificate or certificate of exemption, that’s why the application was submitted and the certificate then emerged.
So all the allegation of forgery is all nonsense. It will be bad enough if they said she presented a forged certificate, no, they’ve gone so far to say she herself forged it. Let’s get that clear, she herself forged it, not that she presented a forged one, because you can present something innocently assuming that it’s forged, but it’s not. NYSC simply have not come clean to say they issued that certificate in response to her application.
Abati: Dele Ogun, will you agree that we probably may not have seen the end of this matter, Folakemi Adeosun vs the Attorney General of the Federation. Are we likely to see a possibility where the AGF will go on appeal and perhaps some other resolutions may be provided at the end of that appeal process? However, what has been established is that she has a right to defend her reputation and she has been quoted in the papers as saying she would take consequential steps to further protect her reputation. As her brother, what are those consequential steps likely to be?
Dele Ogun: Well, Premium Times will find out very very soon indeed. As for the government, it is really for them to take their share of the responsibility and tell the public what the public is entitled to hear. But certainly Premium Times that have repeated the allegations of forgery should expect a very interesting communication very soon.