Summary of EFCC'S reply to Bankole`s objection to his trial
The EFCC today replied former Speaker, Dimeji Bankole on his objection challenging his trial by the Commission at the FCT High Court, Abuja . Briefly put Bankole has asked the Court to quash the charge of illegally obtaining loans to the tune of about N40billion naira to pay enhanced running costs and allowances of members on the following grounds:
1.That by virtue of the Legislative Houses (Powers and Privileges) Act, no court of law can try him.
2.That the EFCC did not obtain the fiat of the Attorney-General of the Federation to file a charge because there was no Attorney-General of the Federation at the time of filing the Charge.
3.That there is no evidence linking Bankole personally with the alleged offences since he only gave effect to the decision of the whole House.
4.That he has already been scandalized by the Press and the EFCC so he would not get a fair trial. EFCC'S REPLY:
In an 80-page reply filed today at the FCT High Court, EFCC thoroughly addressed each of these issues. In the first place, the Commission asked the court to be wary at this stage of delving into the main case. The Commission submitted as follows: 'This court runs the risk of making far reaching pronouncements at this stage in respect of the proof of evidence if the court allows itself to be carried away by the arguments of the Accused/Applicant. The court should bear in mind at all times that trial has not started and should refrain from going into the substantive issues. The law is that the court must never consider whether there is prima facie evidence at this stage, must should only consider whether there is a prima facie case. This means the court should only consider whether the name of the Accused/Applicant has been linked with any of the counts in the charge to call upon the prosecution to elaborate further and not whether the evidence is sufficient to convict or not. That can be at the stage of a no-case submission or final address.'
On the first issue, that is, that by virtue of the Legislative Houses (Powers and Privileges) Act, no court of law can try him, the Commission submitted in respect of Section 3 and 30 of the Legislative Houses (Powers and Privileges) Act as follows: 'We submit that a close scrutiny of the above sections indicate that the protection offered only relates to Legislators acting in discharge of their legislative functions. They cannot be stretched to include Legislators acting in other capacities. In any case, we have submitted above that the Accused/Applicant was charged, not as a Speaker or a Legislator, but as a member or the Head of the Body of Principal Officers, and as such he was charged in exercise of his administrative functions not legislative functions…. We therefore submit that Sections 3 and 30 of the Legislative Houses (Powers and Privileges) Act, are inapplicable in this case. In addition to the above argument, it is clear that from the Head Note of Section 3 of the said law, which is 'Freedom of Speech', the intention of the Legislature is only to protect free speech during debate in the House by the said Section. It is not and cannot be a blanket protection for all criminal acts. Similarly, it is also obvious from both Sections 3 and 30 quoted above that both sections only contemplate the application of the immunity clause only when the officers are acting on matters within the scope of their powers and authority, hence the use of the phrase 'in respect of the exercise of any power conferred on or vested in him by or under….' used in Section 30. It cannot be the case that those sections apply when the Legislators are acting on matters clearly outside the scope of their authority or powers. If, for instance, the Speaker or members, during sitting in the House or a Committee, take a joint decision to go and commit murder, clearly that matter is not within the scope of their powers or authority and they cannot plead the so-called immunity if they are arrested and charged with conspiracy to commit murder. One more angle to section 3 and 30 of the Legislative Houses (Powers and Privileges) Act: Those sections appear to confer immunity on the members of the National Assembly and the Speaker and Senate President in certain circumstances. To that extent, we submit that both sections are unconstitutional…….In this case, the Constitution has already stated instances where certain offices are immune from prosecution. By the doctrine of 'covering the field', no other law can seek to add or remove from the list of those immune……We submit that the Constitution has covered the field in respect of those immune from civil or criminal proceedings, as such the provisions of the Legislative Houses (Powers and Privileges) Act, that seeks to expand that field are null and void to the extent of their inconsistency with provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and we urge this Honorable Court to so hold.'
On the second issue, that the EFCC did not obtain the fiat of the Attorney-General of the Federation to file a charge because there was no Attorney-General of the Federation at the time of filing the Charge, the Commission, through its counsel, Mr. Festus Keyamo, submitted thus: 'The law is that the Economic and Financial Crimes Commission and other law enforcement agencies can, indeed, directly initiate criminal prosecution against anyone without the fiat or permission of the Honourable Attorney-General of the Federation, only subject to his powers to take over and/or discontinue such proceedings.' The Commission also deposed in its counter-affidavit as follows:
'That apart from the direct powers and mandate of the Economic and Financial Crimes Commission to institute and undertake criminal proceedings and to brief private lawyers in that regard without reference to the office of the Attorney-General of the Federation, that the Economic and Financial Crimes Commission, since its establishment, has been given general permission by the office of the Attorney-general of the Federation to institute prosecutions against persons in the name of the Federal Republic of Nigeria and the State and to brief private legal practitioners to so do.'
The Commission submitted that with the above facts, the door is firmly closed against Bankole to raise issues about the authority of the prosecution. This is because the burden is on the Accused/Applicant to show that the Economic and Financial Crimes Commission did not have the permission of the Attorney-General of the Federation to prosecute them and to brief a private legal practitioner in that regard. It is not the other way round for the Economic and Financial Crimes Commission to show that it had the authority of the Attorney-General of the Federation to prosecute the Accused/Applicant. It relied on many Supreme Court decisions in this regard. The Commission went on to submit that if the sum total of the contention of the Accused/Applicant means that Mr. Festus Keyamo was not briefed to prosecute this matter, the simple reply is that the only person who can challenge the authority of Mr. Keyamo to appear is the Attorney-General of the Federation himself. The Commission submitted further: 'In fact, the fallacy of the arguments of counsel to the Accused/Applicant in this regard is hinged entirely on the false and empty foundation and assumption that the E.F.C.C was bound to seek permission from the Attorney-General of the Federation only immediately before the charge was filed before this court, and that since there was no person occupying the office of the Attorney-General of the Federation at the time the charge was filed, then it automatically means no authority exist….As a result of the above and with our deposition that E.F.C.C has since obtained a general permission from the Attorney-General of the Federation in respect of prosecutions, it does not lie in the mouth of the Accused/Applicant to question that authority.' The Commission concluded this leg of the arguments by stating thus:
(1) There is no duty on the prosecution to display that fiat at the beginning of trial, as the fiat must not be in a particular format. A deposition, like we have done, that such authority exists, will suffice.
(2) Only the Attorney-General of the Federation can appear in this court to deny the authority of the Prosecution.
(3) The Accused/Applicant has no locus, or right to question the appearance of the Prosecution.
(4) The court cannot even open an inquiry over authority of counsel for prosecution.
On the third ground of objection, that is, that there is no evidence linking Bankole personally with the alleged offences since he only gave effect to the decision of the whole House, the Commission submitted that there are enough evidence in the Proof of Evidence linking Bankole with the offences of criminal breach of trust and stealing and that without his final approval, none of these acts would have been committed. The Commission submitted further: 'The question as to whether the Accused/Applicant acted dishonestly can easily be ascertained by his conduct. The Rules and Regulations which he violated in approving those unauthorized sums were not made for fun. They were made to check endemic cases of corruption in our country. As a result, a violation of those rules and Regulations will lead to the clear inference that the person is acting dishonestly……..The other argument as to separating the person of the Accused/Applicant from his position cannot hold water. This is because in cases of corporate fraud, the directing minds of the corporate body shall be held criminally liable for deliberate infractions of the law. This was also laid to rest in Bode George's case.
On the issue raised that the House merely shared money belonging to themselves, the Commission submitted as follows: 'My Lord, there is a grave and fundamental misconception here. Even though the loans were illegally obtained (that is without following guidelines) once they were paid into the account of House of Representatives, which is an arm of Government, the money was already standing to the credit of Government, not the personal funds/account of the Accused/Applicant or the members of the House of Representatives. To bring this example home, now the Accused/Applicant has left office as Speaker of the House of Representatives. Is he the one that will now pay back those loans? Of course not! The mess he has left behind will be cleared by Government and not himself or his family. There is no better way to prove this point than to quote the statement of M.A Sani Omolori at page 12A of the Proof of Evidence where he stated as follows: 'It was agreed, after discussions at the level of the Hon. Speaker, and the two Chairman of the appropriation committees to loan the total of N4b and reflect them appropriately in the 2011 budget together with what was outstanding with the Bank. This prompted the memo dated 4th November, 2010. The two Chairmen gave the commitment in writing to reflect the payment in 2011 budget. The Hon. Speaker approved the process of the loan from UBA.' We can now clearly see that the loans are going to be paid back by the Federal Government and yet the Accused/Applicant wants this court to believe that the money is not property of the Federal Government.'
On the fourth issue, that is, that he has already been scandalized by the Press and the EFCC so he would not get a fair trial, The Commission submitted: 'We are at a complete loss as to the purport or reason for this objection. It smacks of nothing but trying to turn this trial into a political arena and this court will resist that. Firstly, the Economic and Financial Crimes Commission has statutory powers of arrest, detention and prosecution, like that of the Police. This objection is nothing but playing to the gallery. It should be dismissed instantly…..The Accused/Applicant has alleged in paragraphs 10, 13 and 16 of the Affidavit in support of the Application that the Economic and Financial Crimes Commission and the prosecutor indicted, vilified and filmed the Applicant as a criminal. This allegation has been denied in paragraphs 4 (q), (r) and (s) of the counter affidavit. In any case, the law is that newspaper reports are not admissible as evidence of the facts recorded therein. Again, how was the Accused/Applicant 'harassed', 'intimidated' or 'humiliated'? We see none. The Accused/Applicant was simply arrested, detained briefly, interrogated and charged to court like every other Nigerian. The truth of the matter is that he sees himself as being above the law and feels indignant that anyone dares to arrest him. It is this attitude of the Accused/Applicant that deserves serious condemnation and reprimand by this court and not the EFCC and we urge this court to do so.
Again, the proper procedure for the Accused/Applicant to redress any wrong done to him in the manner of his arrest and detention is to proceed to court to enforce his fundamental human right. The procedure for doing this has been clearly stated in the 1999 Constitution of the Federal Republic of Nigeria (as amended) and the Fundamental Rights (Enforcement Procedure) Rules 2009 made thereunder. The law is that when a particular mode has been spelt out by the law for seeking redress, it is that mode that must be followed.'
The EFCC concluded its arguments as follows: 'In the final analyses, we urge this court to thoroughly dismiss the Preliminary Objection of the Accused/Applicant and allow the prosecution to prove its case. The war against corruption cannot be halted by flimsy legal technicalities, seemingly clever subterfuge and dodgy arguments.'
The case comes up on the 19th of July, 2011 at the FCT High Court, Apo, Abuja , before Justice Belgore.