Mr. Femi Falana (SAN) was a guest on Channelstv programme, Sunrise Daily on Wednesday where he faulted the statement made by the newly elected President of the Nigerian Bar Association (NBA), Mr. Abubakar Mahmoud calling for the restructuring of the EFCC.
The NBA President, Abubakar Mahmoud recently read a speech calling for the EFCC to be stripped of prosecutorial powers and focus on investigating alone. What is your position on this?
I think I should correct this impression. It is not the position of the Nigerian lawyers. It is the position of the new President of the Nigerian Bar Association. Even though I wasn’t in Port Harcourt for the conference of the Bar, from the reports I have gathered, it was not a resolution adopted by the conference. Because as far back as 2008, this controversy was laid to rest when the NBA leadership at that time misled the then Attorney-General, Mr. Mike Aodoankaa (SAN), particularly for some lack of experience to issue a directive to the effect that all the anti-graft agencies, though EFCC was the prime target, should no longer prosecute without his authorization. I think I was in Dakar, Senegal chairing a meeting and I had to quickly remind the government that there was a decision of the Supreme Court on the matter of Sir Osahon and the Federal Republic of Nigeria that any statutory agency plated with prosecutorial powers can initiate criminal proceedings subject to the overriding power of the Attorney-General either with the view to continue or discontinue but you cannot say that a statutory body cannot prosecute.
Is it the same thing with this one?
Of course; it is the same argument now through another means because it is all designed to strip the EFCC of prosecutorial powers. That was the plan then. Of course, late President (Umaru) Yar’Adua in fairness to him had to challenge the Attorney- General then, Mr. Aodoankaa asking him if he not aware of the judgment of the Supreme Court? At that stage, the president directed that the directive be reversed. In 2011, madam (Farida) Waziri, the then EFCC chairperson, was again misled by the Bar to give these cases to Senior Advocates of Nigeria. Some of them were given the cases, but unfortunately, it was a disaster. In fact, I do recall that a Federal High Court in Lagos actually prohibited four of them, including the then President of the NBA, Mr. J.B. Daodu from ever handling any prosecution for the government because of the allegation that the case of one of the bank executives was messed up. That is where we are again.
Will one be wrong if one is to say EFCC should focus on investigation alone while another body should prosecute?
Why EFCC alone? Are you not aware that this morning, the police will be taking thousands of people to magistrate courts, area courts all over the country today? The Nigerian Customs service prosecutes, NDLEA prosecutes, and NAFDAC prosecutes. Even as a private person, I can apply for fiat to prosecute. Why are you singling out the EFCC?
The AGF once attended a conference where he said the police will also be stripped of prosecutorial powers. Are you aware of that?
Under the administration of Criminal Justice Act, lawyers are going to be prosecuting. But right now, the police are still prosecuting. You would have elevated the quality of your argument if Mr. Mahmoud (SAN) had said we are campaigning that henceforth, all agencies of government that investigate cases should not be allowed to prosecute. But why are you singling out the EFCC? Nobody is talking of ICPC.
Do you have some other reasons why you think the EFCC is being singled out?
No, I don’t want to engage in speculations and conjectures. I have my own idea. I am challenging my colleagues to tell the world why the EFCC is being singled out. The ICPC is an anti-graft agency, so is the Code of Conduct Bureau. Why are you not asking that this should be a general position?
Do you agree with the school of thought that says that it is actually either the Attorney- General or the state that should focus primarily on prosecution because most lawyers, including SAN may not be good on prosecution?
I think there is a challenge for the office of the Attorney General at the federal state levels, in fact, so much attention is given to the EFCC and I have challenged those who are talking of restructuring the country, the state must on their own take up responsibilities allotted to them by the constitution. If I were a governor, why will I allow EFCC to come to my state to prosecute those who engaged in corruption when the law allows the Attorney-General to prosecute? I am saying the expertise is not there on the part of Attorney Generals in the states. The Attorney General of the federation, Mr. Abubakar Malami (SAN) recently disclosed that his office has 8,000 files from the police to prosecute. The NBA leadership has its job cut out for it. They can go for those ones and experiment what they are preaching. But for those who are making efforts, all we can do is to encourage them; but I am saying that the experience of any honest Attorney-General in Nigeria is to the effect that it is very difficult going around looking for investigators when you do not warehouse the prosecution and investigation department in the same office. It is very difficult and it has not helped the country. For instance, I am handling a criminal case in Calabar now. The police officer who investigated the matter has been posted to Kano. Though he has handed over the file but he has to give evidence. Now to get him to come from Kano to give evidence in Calabar, the system will not give him money. You have to go through the Commissioner of Police in Kano to the IGP in Abuja to the Commissioner of Police in Calabar to get him to be authorized to give evidence and that will take ages.
Does this same thing happen to prosecution if they have to be moved?
That is the point I am making. They even have both the prosecution and investigation departments in the same office. We don’t experience such difficulties and it is the same thing with those asking that external lawyers be brought in to prosecute. It is difficult. Many senior lawyers cannot draft charges because they have never handled prosecution of criminal cases before. Most of us have expertise in the area of defending accused persons. So, you can’t experiments by asking me to go and draft charges in high-profile cases. You have to be trained and that is why those who have been trained in the system or those who have left the system and out there, you don’t have to go and look for them if you have to engage in serious prosecution. You can’t experiment with a lawyer who is specialised in land matter to come and handle criminal cases.