Evelyn Okakwu
In a recent reaction to government’s disobedience of court orders for the release of former National Security Adviser, Sambo Dasuki, some lawyers berated the Minister of Justice and Attorney-General of the Federation, Abubakar Malami, demanding that he be de-robed.
According to the lawyers, Mr Malami’s comments justifying government’s disobedience of the orders was inimical to President Muhammadu Buhari administration’s claim of fighting corruption and an insult to the AGF’s position as the chief law officer of Nigeria.
However, Mr Malami’s submission supporting the illegal detention of Mr Dasuki is not the only instance he has acted in obvious negation of his constitutional responsibility as the number one law officer of the nation.
The controversial role of Mr Malami in the equally contentious reinstatement of fugitive former pension boss, Abdulrasheed Maina, his questionable request for payment of $17 million to two lawyers for performing an already completed role in the return of $321 Abacha loot, as well as his controversial advice for the federal government to discontinue the trial of suspects in the $1.1 billion Malabu scandal are some other cases where the AGF appeared to be taking a different direction from that expected of a Justice Minister.
This report therefore highlights Mr Malami’s emergence as AGF and his controversial regard for constitutional provisions.
EMERGENCE
Mr Malami was the national legal adviser for the defunct Congress for Progressives Change (CPC), a party founded by Mr Buhari in 2010. CPC was one of the opposition parties which fused into the All Progressives Congress (APC) on which platform Mr Buhari won the presidential election in 2015.
Following his appointment as minister in November 2015, Mr Malami became an officer expected to champion the cause of justice in a government that pledged a war against corruption.
As stated among the list of his responsibilities in section 174 (3) of the Constitution: “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”.
But how well has the AGF fared in his constitutional role especially in this tripartite responsibilities of ensuring ‘public interest, ‘interest of justice’ and compliance to ‘legal process’?
PUBLIC INTEREST?
At the beginning of the current dispensation of democratic rule in Nigeria in 1999, the federal government under former President Olusegun Obasanjo began steps to ensure the repatriation of $321 million carted away from Nigeria’s treasury by former military dictator, Sani Abacha.
The government employed the services of a Swiss lawyer, Enrico Monfrini, to supervise the processes for the return of the money.
After over a decade, Mr Monfrini’s firm completed the Luxemburg part of the job in 2014 and the looted funds were domiciled with the Attorney-General of Switzerland, pending the signing of a Memorandum of Understanding between Nigeria and that country.
The MoU was to serve as a pledge that the funds would be properly utilised.
Mr Monfrini had also been paid his fees by the Nigerian government. As explained by the Swiss lawyer in a reported communication with the Cable online newspaper, his payment was approved long before Mr Malami’s era because he (Monfrini) completed everything needed to be done by a lawyer regarding the said recovery.
“All that was left after the signing of the MoU was a government-to-government communication for the money to be repatriated to Nigeria.
“It’s a matter which is normally dealt with by government and which doesn’t entail the engagement of lawyers,” Mr Monfrini was quoted as saying by the newspaper.
However, following his appointment in 2015, Mr Malami curiously employed the services of two lawyers to perform the same responsibilities reportedly completed by Mr Monfrini’s law firm.
He also demanded the payment of $16.9 million for the services of the two lawyers, an amount far higher than what Mr Monfrini was reported to have been paid in the original contract.
The two controversially employed lawyers, Oladipo Okpeseyi and Temitope Adebayo, were reportedly both former colleagues of Mr Malami at the defunct CPC.
Reacting to the reported controversies trailing the appointment of the lawyers and a law suit instituted after repeated Freedom of Information Requests on the matter by the Cable Foundation, Mr Malami claimed the fresh contract was created because Mr Monfrini charged Nigeria 20 per cent of the recovered sum as against the expected five per cent for the execution of the return.
That claim was however debunked by Mr Monfrini as a blatant lie.
“I never had the audacity to claim for additional fees. This figure of 20 per cent is simply invented,” Mr Monfrini was quoted as saying.
Speaking on the controversial appointment of the lawyers, the Chief Executive Officer of the Cable Foundation, Simon Kolawole, said although his company has filed a suit against the AGF on the matter, another court case would be instituted if the government goes ahead with the controversial payment.
“Monfrini was not forthcoming with responses to our inquiries. That was why we sent an FOI request to the AGF to get a copy of the agreement.
“It was when AGF media consultants started lying against Monfrini that he eventually opened up. Actually he had finished the job. There was no need for lawyers again. All that was required was for the AGF to write to the Swiss AG to ask for the money. For this our own AGF engaged lawyers for $16.9 million!
“We found this appalling. Our position is that the lawyers should not be paid. We will see this to a logical conclusion. We are already in court seeking an order of mandamus to force the AGF to make the agreement public. If the government goes ahead and pays the lawyers, we will file another case. At the foundation, we are ready to see this to the very end. Justice has to be done,” Mr Kolawole said.
‘ABUSE OF LEGAL PROCESS’
In another controversial development, Mr Malami was caught in the middle of the widely condemned reinstatement of suspended former boss of the Nigeria Pension Task Force, Abdulrasheed Maina.
Mr Maina, a fugitive, was briefly reinstated into the Nigerian Civil Service and promoted in September 2017 in a series of secret events that were ‘officially’ spearheaded by Mr Malami.
Following his alleged involvement in an alleged fraud in 2012, amounting to N100 billion, Mr Maina was declared wanted by anti-graft agency; the Economic and Financial Crimes Commission.
Subsequently, Mr Maina went into hiding and was eventually sacked by the Head of Civil Service of the Federation in 2013 for absconding from duty.
In a dramatic twist, however, Mr Maina was secretly reinstated and promoted from the rank of an assistant director of the interior ministry to the position of a director, following series of letters authored by Mr Malami.
His reinstatement stirred widespread condemnation resulting in a frantic suspension of his appointment by President Buhari and a probe into the controversial reinstatement by the Senate.
Speaking at the Senate chambers on his alleged role in the saga, Mr Malami denied complicity, claiming the controversial reinstatement could not have emanated from his office.
According to the AGF, his last communication on the matter, before Mr Maina’s second appointment, was via a letter dated January 19, 2017, which was meant to ‘draw attention to the situation involving Mr Maina.’
That claim was however controverted by the Head of Civil Service of the Federation, Winifred Oyo-Ita, who maintained that Mr Malami’s January 19, 2017 letter did not only demand the reinstatement of Mr Maina, but that the accused former pension boss was in fact reinstated following instructions by Mr Malami and the Interior Minister, Abdulrahman Dambazau.
Mr Maina himself confessed having several meetings with the AGF, while he was still hiding as a man wanted by the law.
Following that disclosure by Mrs Oyo-Ita, the Senate requested more time to properly analyse the controversial development and Mr Malami reacted to the Senate’s request by approaching the court to stop the Senate committee from carrying out its assignment on the matter.
Mr Malami’s request to suspend the Senate’s investigation was turned down by the court, while Mr Maina’s case, instituted by the EFCC, was re-opened at the same court.
The fugitive former pension boss has still refused to appear for his trial while the AGF’s office has remained silent about the situation.
A Senior Advocate of Nigeria, Chijioke Okoli, said the development does not only send a wrong signal about the AGF, but also about the Buhari-administration, as a whole.
“There is a fundamental problem; in the sense that when people who are perceived to be close to the president are allowed to go unpunished, the right message is not being sent to anybody. Where is Maina? Maina was declared wanted; then he was allowed to come in and assume office. Note that Maina has gone, the ministers and those who are involved have not been sacked and you think Nigerians are fools?”
DISTORTING INTEREST OF JUSTICE
Similarly, despite the series of court documents, linking former AGF, Mohammed Adoke, his counterpart in the petroleum ministry, Dan Etete and others in the controversial Malabu $1.1 billion oil deal, Mr Malami wrote the President in February seeking suspension of the case of fraud brought against some principal players in the said transaction.
In 2011, under former President Goodluck Jonathan, the Nigerian government ordered the transfer of one of Nigeria’s richest oil wells, OPL 245, to Malabu, a company then controlled by Dan Etete, even though the company was officially non-existent.
Through various middlemen, the former minister approached oil giants, Shell and ENI, to buy the block. Knowing Mr Etete’s history, including the fact that he had been convicted in France for money laundering, the oil firms preferred not to deal directly, but through a legally recognised mediator.
That mediator turned out to be the Nigerian government, represented by Mr Adoke.
The agreements that were sealed led to Shell and ENI paying the $1.1 billion into a Nigerian government account in JP Morgan Chase in London. The money was then transferred to Malabu accounts controlled by Mr Etete.
Although Shell and ENI repeatedly claimed they did not know the money was going to end up with Malabu, investigations in Nigeria and Italy, as well as leaked documents revealed that claim to be false.
The alleged fraud resulted in a series of investigations and charges in Italy, the United States as well as in Nigeria.
Also the office of the AGF under Mr Malami had sued the United States’ banking giant, JP Morgan, in December 2017 for allowing the transfer of $875 million dollars, as part of the illegal transaction.
In a curious reversal of the government’s stance however, Mr Malami asked President Buhari to stop the ongoing trial of suspects in the alleged fraud, claiming that the continuation of the matter would have an adverse effect on Nigeria’s relationship with international investors.
In another curious development, the same group of lawyers who had represented Mr Malami in his case against the Senate were employed by Mr Adoke to challenge his trial in court.
And although the case of fraud against Mr Adoke was instituted by the EFCC, the former AGF failed to include the commission in his suit but ensured that only Mr Malami appeared as a respondent in the matter.
That suit resulted in a declaration by the court that Mr Adoke could not be held liable, for his official role in the scandal.
Reacting to the letter written by Mr Malami to the President on the Malabu scandal; the coordinator, Civil Society Network Against Corruption, Olanrewaju Suraj, said the actions of the AGF was a disservice to Nigeria’s democracy.
“The greatest disservice anybody can do to the country is what Malami is doing to the anti-corruption fight; to the government and Nigeria as a whole.
“Malabu’s case is being tried in the Netherlands. There is a conviction and an order that was secured in the UK and the EFCC has collaborated (collated) these facts to investigate those matters that led to the prosecution that we are talking about.
“So, for an Attorney-General to now issue a letter to the president, alleging that there were insufficient documents to proceed with the prosecution; it is most unfortunate, most disastrous and ridiculous,” the activist said.
“There seems to be a kind of conspiracy between former AGF Malami and former AGF, Adoke. The lawyer who represented Adoke in that matter, was the same lawyer who represented Malami in his action against the Senate. So they both drink or share from the same cup. That letter was supposed to have been a confidential letter; that letter was pleaded in court by that lawyer.
“Malami has appeared and represented Nigeria in the London court, where the office of the Attorney-General declared that contract as a subject of corruption. So if he had gone to London to say one thing and then coming back to Nigeria to say another thing; that is very very unfortunate.”
DASUKI
Despite repeated court orders for the release of Mr Dasuki, Mr Malami addressed the media on the matter, explaining government’s position. According to Mr Malami, “the repeated court orders for respect of Mr Dasuki’s right to freedom did not supersede the rights of Nigerians killed by the actions of Mr Dasuki.”
The former NSA was arrested in 2015 for alleged fraud and unlawful possession of firearms.
He has been in detention since his arrest, despite the orders of local and international courts for his release.
Mr Dasuki is facing multiple trials for the alleged offences and has been granted bail by the same courts where all the charges against him were taken.
Despite meeting the various bail conditions, the Nigerian government has refused to release the former NSA.
Following the failure of government to comply with the latest court order on July 2, Mr Malami said the rights of Mr Dasuki cannot supersede that of the generality of Nigerians in whose interest, the former NSA was been detained.
“What I want you to know is that issues concerning law and order under Muhammadu Buhari are sacrosanct and obeying court order is compulsory,” he said.
“However, you should also know that there is a general consensus world over that where the dispute is only between individuals, then you can consider the issue based on the instant situation. But if the dispute is about an issue that affects an entire nation, then you have to remember that government is about the people not for only an individual.
“So you have to look at it from this perspective. If the issue about an individual coincides with that which affects the people of a nation and you are now saying the government did not obey a court order that infringes on a single person’s rights. Remember we are talking about a person who was instrumental to the deaths of over one hundred thousand people. Are you saying that the rights of one person is more important than that of 100,000 who lost their lives?”
In a reaction to Mr Malami’s submissions about government’s disobedience of the court order, a Senior Advocate of Nigeria, Chijioke Okoli, said Mr Malami and the government cannot constitute themselves into a court of law.
“The government and the Attorney-General cannot be the court. This government came into power by acts of law. And if it chooses to disregard court orders, that is lawlessness and it is an invitation to anarchy.
“If he has been given bail and there is no appeal nor stay, then the natural thing is for the people holding him to release him on bail. Anything to the contrary will amount to trampling on the rule of law. And it won’t be good for the society,” Mr Okoli said.
PROTECTING ALLEGED KILLER COP
Arguably one of the worst activities of Mr Malami is his handling of the murder trial of suspects involved in the Apo Six killings.
The Apo Six case centred on the extra-judicial killing of five young traders and a woman, by police officers on the night of June 7, 2005.
The victims, Ekene Isaac Mgbe, Ifeanyi Ozor, Chinedu Meniru, Paulinus Ogbonna, Anthony Nwokike, and Augustina Arebu, were returning from a night club when they were stopped at a police checkpoint.
According to the report of the panel of inquiry, the victims were at a nightclub located at Gimbiya Street, Area 11, in Abuja that night when they had a face-off with Ibrahim Danjuma, then a deputy commissioner of police, after the female victim, Ms Arebu, allegedly turned down romantic advances of the police officer.
Mr Danjuma had allegedly stormed out of the night club to a police checkpoint at the end of the street and told the officers on duty that he had “sighted a group of armed robbers in the area”.
According to the report, which formed the part of the evidence in court, when the six unwary young people later arrived at the checkpoint in their car, Mr Ibrahim allegedly had the car blocked and ordered the officers to shoot at the occupants after an argument.
Four of the occupants of the car died on the spot, but two of them, Mr Nwokike and Ms Arebu, survived the onslaught.
They were later allegedly finished off by the two police officers in the early hours of June 8, 2005 on the grounds that “they attempted to escape from custody”.
Twelve years later, on March 9 this year, two of the officers were convicted and sentenced to death, but the FCT High Court presiding judge, Ishaq Bello, said there was no evidence to convict Mr Danjuma and two others.
Although the trial started before Mr Malami was appointed, it was during his tenure that the judgement was delivered.
The victims’ families criedfoul, after all, even the police officers found guilty confirmed they were acting under Mr Danjuma’s directives.
They wanted to appeal, but to do so, they would require a fiat from Mr Malami’s office as required by law.
