Reflection On Adoke, MTN And Litigation
A famous quotation by a political philosopher states that “Statesmen think of good governance and well being of the society, but politicians think of the next election.”
To a significant extent, most politicians in Nigeria fits the above description by the hugely intelligent philosopher whose name I cannot vividly recall at this moment.
Most Nigerian politicians do actually view their engagement in partisan politics as a huge business and so these sets of 'political investors' see election periods as some of the best opportunities to let their formidable financial might speak for them and the best way to achieve ownership of the mainstream of political governance is to either position themselves for political offices or sponsor surrogates who would be loyal to them. Control of political power in Nigeria is presumed to be the fastest route to the control and domination of the financial resources of Nigeria which is rated as one of the most resource endowed nations on the planet earth but whose populations are some of the most impoverished and poverty -stricken members of the human race. Political historians have therefore found a fitting description for Nigeria as a paradox of a land flowing with milk and honey but whose inhabitants are substantially living from hands to mouths.
The Nigerian political firmament is indeed like a war front whereby the supposed Independent arbiter known as the independent National electoral commission [INEC] cannot institutionally govern the process of election creditably to a transparent extent aimed at ensuring that money bags or what Karl Marx would call owners of means of production [Bourgeoisie] do not own the electoral process but to institutionally allow the electorate own the process.
The electoral commission is Independent on paper by virtue of the fact that the Nigerian Constitution in section 158(1) grants it Independence in matters of appointment and exercise of disciplinary control over its staff. But the fact remains that since 1999 till date, the electoral commission has found it increasingly difficult to exorcise itself of the ghost of corruption and bribery to an extent that key officials of this body have over the past elections been fingered for corruptly undermining the sanctity of the electoral process. The failure and weakness of the electoral body to let the ordinary people become the owners of the electoral process has therefore breached the constitutional recognition of the people as the real owners of the sovereignty of Nigeria from whom holders of political offices ought to draw legitimacy and authority.
Because of the overwhelming adverse consequences of official corruption, the nation's judiciary relying on constitutional provision (section 6) have severally intervened to settle bitter political litigation that have resulted from past elections. But the judiciary like all other institutions in Nigeria have come under increasing focus for the alleged and proven violations of ethical codes of conduct for judiciary officers which absolutely prohibits them from compromising their standing as independent arbiters and ministers in the 'Temple' of justice.
Even as a litany of allegations and proven cases of corruption by judiciary officers have continued to dominate public discuss, still from North to South, the election tribunals since 1999 have had to confront trailer-load of cases filed before them by aggrieved politicians and controversy bordering on corruption have also trailed some of these bitter political cases especially since after the 2007 election.
In the South West whereby two governors hitherto sworn in under the platform of the ruling Peoples Democratic Party were dethroned at the election appeal tribunal and candidates of the then Action Congress of Nigeria Inaugurated as their replacements, those who lost out are still waging unrelenting legal battle to reclaim what they lost.
Ekiti and Osun State used to be under Peoples Democratic Party but the Appeal Tribunal which presided over appeals resulting from the 2007 elections returned candidates of the defunct Action Congress of Nigeria as duly elected even as same political platform [ACN] also defeated the PDP at the Appeal Tribunal in Edo State.
But the former Osun State governor Olagunsoye Oyinlola, a former combatant soldier has since demonstrated that he is willing to use all legal processes to reclaim his mandate which was retrieved and given to his political rival. He has successfully read law and also called to the Nigerian Bar during this intervening period of his grueling political litigation.
The controversy which continues to trail the political cases in Osun and Ekiti has already resulted in public spat between Olagunsoye Oyinlola on one hand and a leading private telecommunications firm-MTN Nigerian Communications over allegation that the telecom firm failed to release the call log concerning conversation that took place between the leader of the then Action Congress of Nigeria Chief Bola Tinubu and the then President of Court of Appeal justice Ayo Salami.
Olagunsoye Oyinlola specifically accused the now retired President of the Court of Appeal of unduly influencing the Appeal Tribunal which nullified his election because in his words, Justice Salami and Chief Tinubu engaged in frantic communication to allegedly scuttle his stay in office as Osun State Governor.
Oyinlola also followed it up with petitions both to the National Judicial Council and the Inspector General of police and according to news report in the ever vibrant Nigerian media, the Inspector General of police was quoted to have concluded that MTN Communication limited failed to release the call log to the National Judicial Council which was investigating the petition former governor Oyinlola filed against the President of the Court of Appeal Justice Ayo Salami. On October 21st 2013, it was reported that Mr. Oyinlola had asked the federal Attorney General Mr. Mohammed Bello Adoke (SAN) to file criminal charges against MTN Communications limited for alleged perversion of course of Justice.
The former governor made the demand in a six-page petition filed through his counsel, Mr. Adebisi Raimi, noting the AGF's refusal to take legal action against MTN Nigeria and its directors simply “represents not just a breach of the constitutional right of the petitioner but that of Nigerians as a whole.”
Oyinlola, therefore, explained that the refusal of the AGF “to take appropriate legal action against MTN Nigeria and its directors simply represents a breach of the constitutional right of Nigerians as a whole” even after the Nigeria Police had conducted fresh investigation and recommended that MTN be prosecuted.
He urged the AGF “to exercise his power of public prosecution entrenched in Section 174 (1) and (2) of the 1999 Constitution by initiating legal action against MTN Nigeria Limited and its directors so that public interest and the interest of justice enshrined under section 174 (3) could be duly served.
But the former governor alleged that MTN Nigeria and its directors did not submit complete call logs, which he said, the Judicial council directed them to furnish between September 2010 and January 2011.
According to him, the NJC set up a Special Investigative Panel in 2011 to determine the culpability or otherwise of certain judicial officers with respect to allegations of corruption that rocked the judiciary.
“During the course of investigations carried out by the Nigeria Police requested that MTN Nigeria furnished it with information on telephone subscriber numbers 08034004887 and 08034010700, belonging to Justice Isa Ayo Salami and Chief Tunji Ijaiye respectively – the principal characters fingered in the communication between Salami and chieftain of the defunct ACN.
“MTN Nigeria furnished the Area “G” Police Command Office the call data records of the two numbers aforementioned between September 2010 and January 2011. The call data records referred to were submitted to the council; urging it to investigate and take necessary disciplinary action.
“In order to assist the council, requests were made to all the mobile telephony and ancillary service providers in the country to furnish the Special Investigative Panel with call data records of certain subscribers. The providers include Glo, Airtel and Etisalat cooperated fully with the council Panel and availed the latter of call data records; spanning, in some cases, six calendar months.
“MTN Nigeria on its own part deliberately frustrated the work of the panel by providing inadequate and incomplete call data records to the law enforcement and security agencies, which, the latter, in turn, transmitted to the Special Investigative Panel of the NJC and thus manipulated same.”
Oyinlola through his lawyer added that the NJC, which investigated alleged corruption against the judicial officers, declared that the call logs earlier released by MTN Nigeria lacked authenticity and as such, of no evidential value.
Oyinlola and his loyalists brought immense political pressure on the office and person of the Federal Attorney General and minister of Justice to Press criminal charges against MTN Communication limited for months, but all to no avail.
In the thinking of the Federal Attorney General, there was nothing before him to show that the telecommunication firm broke any law and so his office decided to err on the side of caution by not collapsing under the unprecedented political pressure to press criminal charges against the telecommunication giant that has so far provided over one million jobs to Nigerians both in the formal and informal sectors of the economy.
But certain political forces allegedly loyal to Oyinlola have coalesced into a civil society group and has began waging war of attrition against the person of the current holder of the office of Federal Attorney General, accusing him of being a shareholder in MTN and therefore has failed to discharge his official obligation to file charges against MTN over the past few months, this persistent pattern of campaign targeted against the Justice minister seems to have taken a turn for the worst when these amorphous groups alleged without providing credible evidential proof on the public domain, that Mr. Mohammed Bello Adoke, the minister of Justice is a shareholder in MTN. The minister is known to have challenged his accusers to provide evidence even as he denied their allegations.
The angst of these anti-Adoke groups is that he failed to file charges against MTN because he believed that the telecom firm complied with Nigeria's statutory provision on telecommunication data retention which is put at the benchmark of not less than three months.
Because of the complexities involved in the disclosure of personal data by telecommunication companies, the relevant agency of government–Nigerian Communications Commission have introduced a number of legal frameworks to guide this process so as not to breach the universal Declarations of human rights and other national legal provisions that safeguards privacy of citizens. As a diligent lawyer, the current Federal Attorney General is said to have reached the decision of not proceeding with criminal charges against MTN because of formidably body of evidence placed before him to show that there was no merit in that direction. He is said to have exercised his discretion as guaranteed under section 174(1) of the constitution.
This section aforementioned empowers the Justice Minister to institute and undertake criminal proceedings and to discontinue at any stage even before delivery of judgment.
Besides, section 174(3) provides 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”.
This writer has it on good authority that the current Attorney General of the federation anchored his decision on the tenets and principles of the above cited constitutional provisions. The political fireworks directed against his person based on a claim of conflict of interest in falling to charge MTN for alleged perversion of the course of justice does not carry any weight since there remains before the public domain no concrete, verifiable and reasonable body of evidence to show that Mr. Mohammed Bello Adoke (SAN) is a share holder in MTN.
Now on the vexed issue of whether the justice minister was right not to charge MTN because the firm complied with extant provision on data retention, protection and disclosure, it is germane to note that this area of telecommunication law is such a delicate matter that due diligence must be taken not to breach the constitutionally guaranteed fundamental rights to privacy.
From Ademola Adeniyi's law journal published in www.adeadeniyi.wordpress.comwe have a working idea of how complex data protection in Nigeria remains.
Ademola Adeniyi observed that due to the increasing public outcry on the need to protect personal data of subscribers of telephone services in Nigeria, the Nigerian Communications Commission (NCC) has revised and amended the Sim Card Registration Regulation of 2010.
This legal luminary observed that section 11 of the new Registration of telephone subscribers Regulation (RTS) 2011 is titled data protection and a salient provision therein stated thus; "in furtherance of the rights guaranteed by virtue of section 37 of the Constitution of the Federal Republic of Nigeria 1999 and subject to any reasonable guidelines, terms and conditions that may from time to time be issued by either the Commission or Licensee , any Subscriber whose Personal Information is stored in the Central Database , shall be entitled to view the said information and to request updates and amendments thereto..".
Wikipedia is not left out of those institutions and scholars that have expressed strong view on the need to protect the integrity of telecommunications data. Writing under the title of “telecommunication data retention”, writers of Wikipedia stated for instance that governments ought to be wary of unduly invading the privacy of their citizens.
The debate around the issue of whether MTN Nigerian Telecommunications limited perverted the course of Justice in the political case involving erstwhile Osun state governor must be grounded in law and not on conjectures, hearsay or unsubstantiated allegations particularly since this gentleman Olagunsoye Oyinlola has not only served in different capacities as both military and civilian governor but he has also capped his intellectual pursuits with a degree in law and upon completion of the academic requirements of the Nigerian Law School has also been called to the prestigious Nigerian Bar as a solicitor and advocate of the Supreme Court of Nigeria.
Since in law it is generally agreed that he who asserts must prove, it is imperative on those who alleged conflict of interest against Mr. Adoke the Federal Attorney General to prove beyond the shadow of doubt that indeed he is a share holder in MTN. It does not take rocket science to unravel the veracity or otherwise of that claim of being a shareholder. If this basic factual ingredient of evidential law is found wanting, then rational observers will dismiss the allegation as wild and politically-motivated.
Emmanuel Onwubiko; Head; HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA; [email protected];www.huriwa.org.