Gov. Ganduje vs. Emir Sanusi II: The fire this time

News that the Kano State Government, under Governor Abdullahi Ganduje, has decided to resurrect the probe into the finances of the Kano Emirate Council under Emir Sanusi is only dwarfed by the reported break-up of the Emirate into five with the Gazetting of the law which created four additional Emirates out of the once monolithic Kano Emirate. Apparently aimed at spiting Emir Sanusi, it was achieved by upgrading four districts which were hitherto part of his domain and under his sovereignty to First Class Emirate status.

As for the probe, in reviving it, the Government appears to have dusted up the charge of misappropriation of funds laid against the Emir the last time out. Just like on that occasion, the Government’s ‘attack dog’ is the State Public Complaints and Anti-Corruption Commission. By virtue of Section 15(1)(a) of the enabling law which established this Commission (in 2008), it is charged with investigating “allegations of corrupt practices against any person”. I believe that given the similarities between the remit of this commission and other relevant provisions of this law and the Independent Corrupt Practices and Other Related Offences Act 2000 enacted by the National Assembly, the latter has covered the field and accordingly, the former is otiose and inoperative, if not outrightly inconsistent with the latter.

The side-notes to Sections 9(1),(3), 22, 23, 24, 25, 26, 27 & 28 of this Law read thus: “corrupt offers to public officers”; “obstruction of investigation”; “making false statements or returns”; “gratification by and through agents”; and “bribery and giving assistance in regards to contracts”. They spell out the remit of the Commission. In this regard, Section 26 of the Law appears to confer it with the requisite remit vis-à-vis the presumed allegations against Emir Sanusi. It provides that “any person who being an officer charged with the receipt, custody, use or management of any part of the state or local government’s revenue or property knowingly uses any part of the revenue or uses or mismanages or furnishes any false statement or return in respect of any money received by him or entrusted to his care or any balance of any money in his possession or under his is guilty of an offence and shall on conviction be sentenced to imprisonment for a period of not less than two (2) years”.

A close look the provisions of the ICPC Act and the Kano State Anti-Corruption Law will show a striking similarity between the provisions of Sections 12, 13, 18, 19, 20 and 25(1) of the former and those of Sections 22, 23, 24, 25, 26, 27 and 28 of the latter, as aforesaid. Indeed, it can safely be said that to the extent that the State Law post-dates the Federal Act (having been enacted in 2008 and 2000, respectively),it can safely

be said that Kano State copied, verbatim, the salient provisions of the Federal Law. Even though imitation is said to be the best form of flattery, in juridical terms, it is nothing short of heresy.

This is because, under a Federal Constitution (such as the type we operate in Nigeria) which has clearly spelt out the different roles of the federating units, where a federal legislature has covered a particular legislative field, no regional or state government is permitted to legislate on the same field previously legislated upon by the federal government. If such a legislation is enacted by a State Government, it is invalid and inoperative: ATT-GEN. OF ABIA STATE vs. ATT-GEN. OF THE FED. (2006) All FWLR pt. 338 pg. 604 @ 710H. In other words, the ICPC, and not the State Anti-Corruption Commission, is the competent authority to investigate the allegations against Emir Sanusi.

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.

To the extent that a budget is a law, any allegation that public funds have been misappropriated is simply short-hand for saying that, based on the reports of both the Auditor-General and Accountant-General of the State, the Public Accounts Committee of the State House of Assembly believes that reasonable grounds exist to presume that funds approved by the Assembly 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 leveled against the Emir is, in my view, illmotivated.

I believe that the provisions of Section11 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 out of sync with the words, if not the intention, of Section 121(1)&(2) of the 1999 Constitution, which confers the power of approving State budgets (including those of 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.

Section 36(12) of the 1999 Constitution provides that “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 so far 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 vs. THE STATE (1988) 2 S.C. pt. II pg. 139. In UMOERA vs C.O.P. (1977) 7 S.C. 12, the Supreme Court held that that this legal requirement manifests in the following ways: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

Under the law, misappropriation of public funds, per se, 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 Kano State House of Assembly, it must be established that a written law unambiguously penalizes (not merely prohibits) that conduct. In my view, both the Kano Emirate Council Special Fund Law and Section 120(3) & (4) of the Constitution fail this test.

At any rate, as we seen, the legality of the renewed probe of the finances of the Kano Emirate Council/Emir Sanusi wholly depends on the validity of the enabling law which established the investigating Kano State Public Complaints and AntiCorruption Commission. Under the Constitution, the power to establish Anti-Corruption Commissions vests exclusively in the National Assembly. See Section 15(5) of the 1999 Constitution, which provides that the State shall abolish all corrupt practices and abuse of power. See also ATT-GEN. OF ONDO STATE vs. ATT-GEN. OF THE FEDERATION (2000). Accordingly, the Commission ought to discontinue the said probe forthwith while the Commission itself should be quietly scrapped. Anything short of this and the public will be left with a feeling that both the probe and the newly-created Emirates were simply contrived to settle scores with the Emir. If that is the case, it would be a political vendetta taken too far.

Sani, Esq wrote this piece from Kano