Emir Sanusi: Alleged Misappropriation and a Dethronement That Never Was
IIntroduction t is no longer news that the probe launched by the Kano State House of Assembly into the alleged misappropriation of the sum of N6billion, inter alia, by the Emir of Kano, His Royal Highness Muhammad Sanusi II, has been dropped at the instance of the State Governor, Dr. Abdullahi Ganduje. This was reportedly sequel to the intervention of well-meaning Nigerians, including Acting President Yemi Osinbajo, the Sultan of Sokoto, Alhaji Aliko Dangote, former President Ibrahim Babangida and others.
Notwithstanding this obviously welcome development, I believe that it will not be out of place to interrogate the merits or otherwise of the charge of misappropriation, in particular, levelled against the His Royal Highness, not least because the Emir’s legendary irrepressibility might yet ensure that the suspension of the probe turns out, in the not too distant future, to be but a temporary truce -a lull in the fighting - before the resumption of full-scale hostilities. And this time, the outcome might not be so favourable for at least one, if not all, the combatants
Appropriation and Misappropriation
But, first, what is “appropriation”? It is defined as “a legislative body’s act of setting aside a sum of money for a public purpose” - see BLACK’S LAW DICTIONARY, 8th edition. Page 110. Accordingly, to misappropriate funds is to spend or utilise public funds for a purpose, or to an extent which is different from or greater than that for which it was intended or authorised by the appropriating authority.
Public funds are appropriated in what is commonly referred to as ‘a budget’. A budget is, in fact, a law - called an Appropriation Law - which is passed by the National or a State House of Assembly. See Sections 120 – 123 of the 1999 Constitution. Section 10(2) – (4) of the Kano Emirate Council Special Fund Law 2004 provides that the accounts of the Emirate shall audited by an auditor approved by the Auditor-General, who shall submit a report thereon to the Emirate Council, which shall, in turn, submit same to the State Governor.
This provision appears to be inconsistent with Section 125(3)(b) and (5) of the Constitution which authorises the State Auditor-General:
i. To comment on the annual accounts of the council and the report of the external auditor thereon; and
ii. Within 90 days of his receipt of the Accountant-General’s financial statement and annual accounts of the State, to submit his report thereon to the State House of Assembly, upon which the House shall cause the report to be considered by the House Committee on Public Accounts.
Allegation Against Emir: IllMotivated
To the extent that a budget is a law, an allegation that public funds have been misappropriated is simply shorthand for saying that, based on the reports of both the Auditor-General and Accountant-General of the State, the House Public Accounts Committee believes that reasonable grounds exist, to presume that funds approved by the House for the Emirate Council in an Appropriation Law, were applied in a manner that was inconsistent with that Law. Accordingly, in the absence of any ‘red-flag’ or ‘flags’ in either the Auditor-General/ Accountant-General’s report(s), or that of the House Public Accounts Committee, the allegation levelled against the Emir is, in my view, ill-motivated.
Assuming, without conceding, that those reports, or any of them, indicted the Emir, that is by no means conclusive, as the all-important question is, whether there is divergence or inconsistency between the purpose and quantum of funds appropriated in a budget passed by the House, and the actual expenditure profile of the Emirate. Obviously, if no such divergence exists - or, indeed, if no such appropriation was made – no law has been violated, and this charge is untenable.
I believe that the provisions of Section 11 of the Emirate Council Special Fund Law which require the expenses of the Emirate to be backed by a budget approved by the Governor are anomalous, because they are somewhat out of sync with Section 121(1) & (2) of the 1999 Constitution, which confers the power of approv- ing State budgets (including those of its organs like the Emirate Council) on the State House of Assembly; the Governor’s role in this regard is merely to prepare and lay the budgetary estimates before the State Assembly.
More importantly, in my view, that provision of the Law is merely directory and not mandatory, notwithstanding the word ‘shall’ used therein. This is because the Supreme Court has consistently held that, there is no general rule for determining when that word implies either a peremptory or a directory mandate; in every case, what is paramount, is the object of the statute, which is to be construed as a whole. See SPEAKER, BENDEL HOUSE OF ASSEMBLY v OLOYO (1983) 7 S.C. 85 @ 225, per Nnamani, JSC. The same applies to Section 120(3) & (4) of the Constitution which provides as follows:
“(3) No moneys shall be withdrawn from any public fund of the State, other than the Consolidated Revenue Fund of the State, unless the issue of those moneys has been authorised by a Law of the House of Assembly of the State;
“(4) No money shall be withdrawn from the Consolidated Revenue Fund of the State or other public fund of the State except n the manner prescribed by the House of Assembly”.
The position of the Supreme Court on the import of the word ‘shall’ used in an enactment, was somewhat modified in IFEZUE v MBADUGHA (1984) 1 S.C.N.L.R 327 @ 349, where the court held, per Eso, JSC, as follows:
“Whenever a statute creates a duty, the first primary question for judicial decision is what is the sanction that has been provided for its breach. No statute creates an obligation without anticipating a breach. Is there any sanction? If there is, then it is mandatory. It is absolute. Where the court cannot interfere to compel performance, or indeed, punish the breach of duty, the Act is directory.”
This principle was followed in N.E.W. Ltd. v DENAP Ltd (1994) NWLR pt. 338, and was codified in Section 36(12) of the 1999 Constitution thus:
“No one may be convicted of a criminal offence unless that offence is defined and the penalty therefor prescribed in a written law. See also Article 7(2) of the African Charter on Human and Peoples Rights. To the best of my knowledge, no such statute has been invoked against the Emir in relation to the charge of misappropriation of the funds of the Emirate.
Assuming, without conceding, that such a law exists, it must – like all penal statutes – be strictly construed for the benefit of His Royal Highness: OHUKA v THE STATE (1988) 2 S.C. pt. II pg. 139. In UMOERA v C.O.P.(1977) 7 S.C. 12, the Supreme Court held that that this legal requirement manifests in four ways, viz:
i. that express language is required for the creation of the offences alleged;
ii. that words describing the elements of the offence should be strictly interpreted;
iii. that any statutory conditions precedent to the infliction of punishment should be fulfilled to the letter; and
iv. that all technical provisions should strictly be observed
Conclusion While spending funds which have not been appropriated may be legally inappropriate, it is neither illegal nor does it amount, without more, to corruption. Under the law, misappropriation of public funds, per se, it is not a strict liability offence; there must be something more – an element of moral turpitude – which taints such expenditure and strongly hints at corrupt enrichment on the part of the affected public official. Above all, such conduct must be clearly expressed to be punishable as a criminal offence under the provisions of a penal statute.
In order to sustain the charge of spending funds appropriated for the Emirate contrary to the provisions of an Appropriation Law enacted by the State House of Assembly, it must be established that a written law unambiguously penalises – not merely prohibits – that conduct. Both the Emirate Council Special Fund Law and Section 120(3) & (4) of the Constitution fail this test.
In a nutshell, therefore, if there is any ambiguity in the terms of the statute(s) which His Royal Highness is alleged to have contravened in respect of the allegation of misappropriation of funds, or reasonable doubt that any offence at all was committed, it must be resolved in the Emir's favour, leading, inevitably, in law, to the collapse of any further investigation or even trial.
"ACCORDINGLY, IN THE ABSENCE OF ANY ‘RED-FLAG’ OR ‘FLAGS’ IN EITHER THE AUDITORGENERAL/ACCOUNTANT-GENERAL’S REPORT(S), OR THAT OF THE HOUSE PUBLIC ACCOUNTS COMMITTEE, THE ALLEGATION LEVELLED AGAINST THE EMIR IS, IN MY VIEW, ILL-MOTIVATED"