Following controversies over the recently-recovered Abacha loot, Ikenna Anyanwu examines the legal implications of the war of words between the Economic and Financial Crimes Commission (EFCC) and American Senator

 Some senior Nigerian lawyers have weighed-in on the recent altercation between the Economic and Financial Crimes Commission (EFCC), and a prominent United States of America (USA) Senator, Charles Grassley, who is the Chairman of the U.S. Senate Committee on Finance.They expressed serious concerns at the exchanges of words in strong language between the duo.

Grassley reportedly wrote a letter to the Chairman of the Money Laundering and Asset Recovery Section of the U.S. Department of Justice calling for the stoppage of the repatriation of all funds running into over $300million recovered from bank accounts said to be connected to Nigeria’s late Military Head of State, General Sani Abacha.

The senator accused the EFCC and its acting Chairman, Mr Ibrahim Magu, and Attorney-General of the Federation (AGF), Mr Abubakar Malami, SAN, of being biased against critics and political opponents of the incumbent administration of President Muhammadu Buhari in the fight against corruption and of being “agents of oppression.”

The EFCC, in its response by its acting Spokesperson, Mr Tony Orilade, in its defence, insisted that there was no iota of bias in the commission’s handling of criminal cases under Magu, particularly corruption cases & that anti-corruption battle being fought by the Commission has been “impartial, objective and non-discriminatory.”

Malami, on his part, dismissed the U.S. Senator’s assertions as baseless.A senior lawyer, Mr Martin Okpaleke, who is the proprietor of a Victoria Island, Lagos law firm, Gerald-Martin & Company, called for the de-escalation of the apparent tension by toning down of the rhetoric by both sides.

Okpaleke added that it was important that attention should be on the totality of EFCC’s work in combating economic,specialised and sophisticated crimes and not be unfairly and narrowly focused on corruption cases involving politically exposed persons.

He contended that any fair-minded person will score the Commission’s performance under Magu creditably well based on publicly available information about the commission’s work.

He expressed disappointment that EFCC’s work in combating crime appears to be suffering from what he described as “a mostly politically induced negative perception of the Commission’s efforts as being unfairly targeted at critics and political opponents of the incumbent administration of President Muhammadu Buhari.”

He contended that such perception is not borne out by the facts when one considers that politicians of the current ruling party as well as its supporters have been investigated and are still being investigated by the Commission over various alleged offences, with some already prosecuted and convictions obtained by the Commission from the courts while several others are currently being prosecuted.

He suggested that attention should be refocused by the public, including the Senator, U.S. and other governments such as the U.K. government, and the European Union, EU, on other areas of EFCC’s work of combating crimes such as money laundering, sophisticated frauds and financial crimes and cyber crimes, areas in which he said  the Commission has excelled and attained the highest global standards under Magu and is currently cooperating with the U.S.A. Federal Bureau of Investigation, FBI.

Okpaleke said that he felt that such model of cooperation between EFCC and the U.S.A. FBI should have been one of the areas of focus by the U.S Senator and in respect of which he ought to encourage greater cooperation between the U.S. government and its agencies and the Nigerian government and its agencies.

He said that handling of corruption cases involving politicians by law enforcement agencies world-wide in partisan democratic environments tends to be inherently controversial, emotive and sensational and that it was never easy for law enforcement agencies to navigate such politically charged terrains without facing accusations of bias and partisanship from one or more sides.

On the issue raised by Grassley that the Commission and its Acting Chairman are “agents of oppression”, Okpaleke condemned such characterisation, contending that it is wrong personalising such matters to the extent of defining and reducing the actions of a corporate law enforcement entity to the person of the leading member of its management no matter how tempting that might be.

But he called on the EFCC to be more open to plea bargains by suspects or defendants and to work more closely with the courts in appropriate cases, utilising the plea bargain innovation in the Administration of Criminal Justice Act, as amended.

He further suggested that the Commission should also respect the informal classification of offences into what he said could be loosely termed as “process” or “administrative” crimes and “substantive” crimes.

According to him, Process or Administrative crimes include unwitting flouting of the KYC (Know Your Customer/Client) requirements of money laundering statutes by defendants other than banks and financial and allied institutions, where it is apparent that such defendants inherently lack all the paraphernalia and wherewithal to consistently conduct the necessary due diligence in financial transactions.

Substantive crimes, on the other hand, include obtaining money under false pretexts, money laundering, stealing, bank frauds, etc in which he contended that there are invariably actual victims unlike process or administrative type crimes where there is usually only a nominal victim, usually the State.

He suggested that such approaches would help negate or completely avoid any impression or perception that the Commission seeks the destruction and not just the punishment and reform of those it prosecutes.Publicly available information and investigations by reporters seem to support some of Okpaleke’s observations.

Courts, particularly the Federal High Court, appear to have generally tended to approve most plea bargain agreements entered into by the EFCC and defendants being prosecuted by it, with such defendants being convicted but sentenced to lesser punishment, suggesting that the “oppressive” tag foisted on the EFCC and its Acting Chairman by Senator Grassley may after all be ill-informed.Some courts have even recommended plea bargaining to both the Commission and defendants facing trial.

Outside the terrain of plea bargains involving public officials or former public officials and politically exposed persons, is the plea bargain arrangements in EFCC’s case against Saeed Hussain at the Federal High Court, Lagos, Nigeria.

The offence for which he was charged by the Commission in Suit No.FHC/L/CS/94A/2019 was a count of violation of KYC(Know Your Customer/Client) requirements of the Money Laundering (Prohibition)Act,2011(as amended) in the course of  monetary transaction with one of his customers.

This particular Defendant who had no prior criminal record and cooperated throughout with the Commission in its investigations, succumbed to ill health in the course of his arrest, detention, and prosecution but eventually submitted to a plea bargain arrangement, pleaded guilty to the charge and was convicted by the court and was sentenced to a fine in a sum of money which involved a very substantial part of the money in the transaction, and to an undertaking to the Federal Government of Nigeria concerning future lawful conduct of his business and that of his companies.

The terms of the court’s judgment in that example was subsequently satisfied by the Defendant with the payment of the fine and issuance of the guarantee, after which his lawyers applied to the Commission for the release of his international passport and other property seized by the court, all of which the Commission promptly released, enabling him to seek further medical attention.

That particular Defendant, from all available information, has since remained law-abiding and kept to the terms of the undertaking given, having experienced the sobering effect of being subjected to the criminal justice system and processes, while EFCC on its part has kept to the agreement reached with him by withdrawing against him the other charges arising from the same transaction before other judges of the Federal High Court, Justice Oguntoyinbo.

Contrary to the U.S. Senator’s generalised imputation of bad faith to EFCC’s efforts, the striking out of the other charges against Hussain by the Federal High Court at the instance of the Commission due to the Defendant’s earlier conviction by another judge of the court under the plea bargain, speaks well of the Commission’s good faith and integrity under Magu.

Another instance is the case of Peoples Democratic Party, PDP, former spokesman, Chief Olisa Metuh, who was prosecuted by EFCC before the Federal High Court, Abuja, and ultimately convicted and sentenced to custodial punishment.

In the course of delivery of the judgment of the court, the Presiding Judge, Honorable Justice Abang, actually appeared to suggest that Metuh could have explored settlement (plea bargain) with the Commission and had opportunity of doing so but for his pride.

The senator accused the EFCC and its acting Chairman, Mr Ibrahim Magu, and Attorney-General of the Federation (AGF), Mr Abubakar Malami, SAN, of being biased against critics and political opponents of the incumbent administration of President Muhammadu Buhari in the fight against corruption and of being “agents of oppression.”