*Durante bene placito (at the pleasure of the president)

*Discordant tunes over style of Justice Salami’s panel 

When the presidential committee investigating the alleged mismanagement of the Economic and Financial Crimes Commission (EFCC) by its suspended acting chairman, Ibrahim Magu chose to detain him and conduct its 10 days affairs underground and hoard information from the public, the media helped itself by snooping. While the committee seemed to enjoy the prying, the embattled Magu and his lawyer, Mr. Wahab Shittu are quite upset over the development.

Consequently, Shittu on the instruction of his client wrote to the panel chairman, retired Justice Ayo Salami, detailing news reports, which he claimed were untrue and did not represent what transpired behind the closed doors. He said the publications were prejudicial to the proceedings of the panel and lamented that Magu was not given a copy of the allegations against him to enable him respond to them.

While this is not intended to look into the merit of his claims or that of the panel, it is important to state that the reason for the speculative publications is because Nigerians want to know what was going on with the supposedly anti-graft czar. When the statutory purveyors of such public information were kept in the dark, they helped themselves. This brings to question; the legality of a presidential panel conducting its investigative affairs in secret when Section 36 (3) of the 1999 constitution declares that courts of law must conduct its affair in public. 

Section 36 (3) states: “The proceedings of a court or proceedings of a tribunal relating to matters mentioned in subsection 1 of this section (including the announcement of the decisions of a court or tribunal) shall be held in public. Subsection 4 of this section also declares that whenever anyone is charged with a criminal offence, he shall, unless the charge is withdrawn be entitled to a fair hearing in public. Subsection one talks about the determination of civil rights and obligations and the issue of fair hearing within a reasonable time.

Has the panel complied with these provisions, which relate to even more constitutionally recognised bodies? While some lawyers think the committee acted in order, others believe the contrary.

Professor and former Dean, Faculty of Law, Imo State University, Owerri, Nnamdi Obiaraeri said the panel’s action is procedurally correct and consistent with one of the twin pillars of justice- audi alteram partem, meaning hear both sides.

 

His words: “The Justice Salami presidential committee is an administrative stop-gap measure for unraveling things or a fact finding committee. The committee is not a court, which must conduct its sittings in the open. Nigerians should therefore be patient to allow the said committee time to turn in its report containing their findings and recommendations first to Mr. President that set it up.”

According to him, after handing in its report to the president, any further development(s) on the matter would be made public by the Presidency except the committee is expressly authorised to go public with its findings and recommendations.

Similarly, the former attorney general and commissioner for Justice, Abia State, Chief Awa Kalu (SAN) said the constitutional protection for defendants is about trial in public. According to him, investigation can be quietly done as long as defendants get an opportunity to respond to allegations at the earliest opportunity. “But for the avoidance of doubt, the Salami panel is conducting an investigation into allegations leveled against Magu. Take note that the EFCC thrives on media trial, which enables the public to accept hypothesis as theory,” he said.

Also, vocal lawyer, Chief Goddy Uwazuruike said the panel has not infringed on any law by going secret. He explained that Nigerians are entitled to know what has been going on, but noted that the panel is an administrative hearing and not a judicial one. “The purpose of administrative hearing is for internal decision making. The decision can be quashed in court if there is no fair hearing. There is no deviation from democratic norms by the panel. This is because an administrative body can always investigate any issue within its competence,” he stated.

Uwazuruike stated that Magu, as acting public officer, had unsecured tenure. “It means that he has no claim to tenure. He could be relieved of his position without any reason. Ordinarily, an acting position lasts for a maximum of six months. He has been there for five years and twice the Senate rejected his tenure. In other words, the Senate did not find him worthy of the seat,” he said.

Referring to the speculative publications, the lawyer explained that from what Magu’s lawyer wrote in his letter to the panel, the suspended EFCC acting chairman has been given access to his lawyer at the hearing. To that extent, the hearing, he said, is good and pointed out that EFCC detainees did not have that luxury of access to lawyers under Magu.

He said: “The speculation, which I classify as media trial is a consistent and devilish method perfected by EFCC to demonize suspects. Magu is at the receiving end of his hatchet style. He now knows how his detainees have been feeling.

“Can Magu go to court to challenge his suspension? No. This is because he has no tenured appointment. His appointment in law is durante bene placito. In other words, it is at the pleasure of the crown (president).

“The Magu saga is instructive and a lesson to all office holders. Do unto others, as you will want others to do you. The acts of yours today will be your undoing tomorrow. Magu was not known for obedience to court orders. Bar. Monday Ubani languished in detention even after the court had ordered his release. There were numerous cases of supremacy struggles with DSS. I am yet to read of the trial of any EFCC officer for human rights violation.”

 

But the chairman, Nigeria Bar Association (NBA) young lawyers forum, Ikeja Branch, Yusuf Nurudeen explained that Magu was a public servant who had presided over affairs of the state, hence everything about his probe must be done in public within the meaning of section 36(1) and (3) of the 1999 Constitution of Nigeria. It is trite that a public place, he noted is where persons have the right to freely enter into and exit. This, Nurudeen said is the essence of fair hearing.

“It is the essence of justice that not only should it be done but that it should actually be seen to be done. Any act of secrecy, however desirable it might seem, detracts from the aura of impartiality, independence, publicity and unqualified respect, which enshrouds justice given without fear or favour.

“Again, for the fact that Magu is being queried for how he handled the public trust and commonwealth of Nigerians, we are entitled to know. It is our fundamental right to know how the power reposed in Magu has been used in line with Section 22 of the Constitution. Some Nigerians may be willing to render assistance appropriate to the Presidential probe panel in line with Section 24(e) of the 1999 Constitution,” he stated.

According to him, the best comparable democratic norms are that Magu should be presumed innocent until found guilty and that his trial should not be shrouded by superfluous media trial. Emphasising that rule of law entails due process, he stated that all activities relating to his trial must conform with the due process established by law. “He should be made to enjoy all the constitutional safeguards guaranteed by the constitution, including his right to be informed of his offence in writing, right to the counsel of his choice, bail, the right to prepare for his trial, to mention a few even if the EFCC under him violated these provisions of our laws.

“Lastly, he must be made to enjoy all the indices of fair hearing, including the right to cross-examine all witnesses called by the panel/tribunal either by himself or through his counsel, all documents/exhibits sought to be tendered against him must be first frontloaded for him to examine and prepare his defence. Also, he must be given adequate time to prepare for his trial. There is no need to be in a hurry because justice rushed is justice crushed,” he declared.

Decrying the development, Kano based lawyer, Bar. Abubakar Sani, said 21 years after the end of military dictatorship and the return to democracy, it appears the country is yet to wean of  ‘military’ mind-set, especially within the ruling elite. “For me, that is the only possible explanation for the way the civil liberties of suspects have continued to be trampled upon in Nigeria.

“Yes, Magu may have been guilty of the same ‘atrocities’ while he held sway at the EFCC, but two wrongs don’t make a right. The government ought to have validated his detention beyond the constitutionally permitted period of 48 hours through a court order. Detaining him for 10 days without formally accusing or charging him to court is a travesty.

“As for what transpired during the period of his detention, it appears that, under the constitution, only the proceedings of a court of law are required to be conducted in public. The Tribunals of Inquiry Act (under which the Salami Panel was set up), contains no such provision. However, what really matters is not so much the secrecy or otherwise of its proceedings as whether natural justice or fair hearing was meted out to him,” Sani stated.

Immediate past president of the Campaign for the Defence of Human Rights (CDHR), Bar. Malachy Ugwummadu said the concerns about secret proceedings underline the “present malfeasance.” According to him, the mode of arrest or “adoption” was abhorrent, while his incarceration for about 10 days without an order of court was illegal and unconstitutional, considering that sections 35 and 40 of the 1999 constitution guarantee Mr. Magu’s fundamental rights to personal liberty and movement respectively.

He said that the counter position of Magu’s counsel that his client had neither been questioned nor availed the particulars of the allegations against him contrary to media speculation, confirmed the irregular process and procedure adopted in his matter.

“Those who argue that he also adopted the same style in dealing with his suspects should also inquire into the volume of damages that the Commission has been paying and obligated to pay for violating people’s fundamental rights, including life actions instituted by some of us against the Commission. The State commits twice the same offence if it has no better-civilised way of dealing with a particular transgression other than what it is complained about,” he explained.

 

Therefore, Ugwummadu stated that the behaviour of the government on Magu’s matter completely undermines its fight against corruption locally and even internationally. “Yet it remains the only appeal that this government showcases to the people since we are doing badly with both the economy, job creation and security, he said, urging Magu to file a very strong fundamental rights action against the investigating panel, Inspector General of Police (IGP) and of course the Attorney General of the Federation (AGF) because his probe and trial can go simultaneously with such right enforcement action.