The Un­for­get­table 1018 Days Drama

THISDAY - - PERSPECTIVE - Yusuph Olaniy­onu ––Olaniy­onu is Spe­cial Ad­viser (Me­dia and Pub­lic­ity) to the Se­nate Pres­i­dent.

Simon Ko­la­wole, the founder of Ca­ble On­line news­pa­per is usu­ally a jovial and jolly good fel­low. He is ca­pa­ble of mak­ing jokes out of the most se­ri­ous is­sues. As Ed­i­tor of THISDAY where I also edited the Sun­day news­pa­per, Simon would walk into my of­fice and say, “Al­haji, Al­haji, Al­haji, how many times have you been to Saudi Ara­bia so that I can know the num­ber of pre­fix I will put be­fore your name?”. By that time, I will be at alert to know what news story he had to share with me. If it is news about my state, Ogun, Simon will add that “I am al­ways re­as­sured that you peo­ple from Ogun State are the prob­lem of Nige­ria”. If it was a le­gal is­sue he wanted us to dis­cuss, he would be­gin by say­ing “we need to kill all lawyers in this coun­try for us to de­velop”. Then, he will later go into the sub­stan­tial mat­ter.

How­ever, when Simon in a phone con­ver­sa­tion some­time in July 2015, joked about a plot to “deal” with my prin­ci­pal, Dr. Abubakar Bukola Saraki, the then newly elected Pres­i­dent of the Eighth Se­nate, “for dis­obey­ing us and get­ting a po­si­tion that we re­served for some­body else”, I knew there was trou­ble. Simon is not a politi­cian or an es­tab­lish­ment man, and may never be. In fact, in that ex­pen­sive joke, he was pass­ing an im­por­tant mes­sage to me with­out giv­ing away too much in­for­ma­tion.

Im­me­di­ately, I in­formed my boss. Though he was op­posed to our rais­ing the alarm on this new threat, with the ben­e­fit of hind­sight, I re­al­ized he knew what was go­ing on but had a dif­fer­ent ap­proach to the is­sue. Early Septem­ber 2015, when he re­turned from a for­eign trip and I raised the is­sue with him at the air­port, he was not sur­prised and it ap­peared I was telling him a stale news.

The Code of Con­duct Tribunal Act re­mains the most dan­ger­ous le­gal in­stru­ment to deal with a po­lit­i­cal en­emy be­cause the pro­vi­sions of its Sec­tion 2, sub-Sec­tion 2 clearly spell it out that any­body con­victed un­der it will va­cate his cur­rent po­si­tion, for­feit the prop­erty said to be un­de­clared and get a ban of 10 years from hold­ing any elec­tive or ap­pointive po­si­tion. It was in­ge­nious for the strate­gists of the Buhari ad­min­is­tra­tion to come up with charges against Saraki un­der this law. More im­por­tantly, our re­search in­di­cated that the Eco­nomic and Fi­nan­cial Crimes Com­mis­sion (EFCC) had a hold on the CCT chair­man, Mal­lam Dan­ladi Umar and was ready to ma­nip­u­late him to get judge­ment against Saraki.

The first sig­nal that the ex­pected case would have a lot of twists and turns was when on Septem­ber 11 2015, a Wed­nes­day, we read the 13-count charge on an on­line news­pa­per, Sa­hara Re­porters, even be­fore the de­fen­dant was served. By The fol­low­ing day, while we were all study­ing the charges as printed from the on­line medium, we heard of an at­tempt to serve the process through the then Chief of Staff to the Se­nate Pres­i­dent, Sen. Isa Galaudu. This was a time when the Se­nate it­self was on re­cess. On Septem­ber 14, the case came up at the Code of Con­duct Tribunal, Utako, with the Tribunal chair­man, Mr. Umar, threat­en­ing fire and brim­stone. He ac­tu­ally is­sued an ar­rest war­rant against the Se­nate Pres­i­dent.

The de­fen­dant had less than 24 hours to as­sem­ble a le­gal team or study the charges. It was as a re­sult of the lat­ter con­sid­er­a­tion that many of his sup­port­ers and friends ad­vised that the Se­nate Pres­i­dent should not make ap­pear­ance in the Tribunal on that first day in the Tribunal.

By that time, the Se­nate Pres­i­dent had re­lo­cated to his guest house which shared a wall with the of­fi­cial res­i­dence of the Inspector Gen­eral of Po­lice, Mr. Solomon Arase. The re­lo­ca­tion hap­pened as a re­sult of the fire in­ci­dent in the pri­vate res­i­dence of the Sarakis. The new location and the ar­rest war­rant from Mr. Umar height­ened the ten­sion around the Se­nate Pres­i­dent. Many of his friends, as­so­ci­ates and sup­port­ers were afraid he could be ar­rested as the IGP was now his next door neigh­bour. How­ever, Arase, a fine, bril­liant and gen­tle­man of­fi­cer, re­fused to get in­volved in the politics of the CCT trial.

Un­fazed, Saraki put to­gether a le­gal team headed by for­mer Pres­i­dent of the Nige­rian Bar As­so­ci­a­tion (NBA), Mr. Joseph Daudu, SAN. Be­fore the first ap­pear­ance of the Se­nate Pres­i­dent on Septem­ber 22, 2015 at the Tribunal, a top source in gov­ern­ment had boasted to me that Saraki would not be on the seat of the Se­nate Pres­i­dent when the red cham­ber of the Na­tional As­sem­bly would be hold­ing con­fir­ma­tion hear­ing for min­is­ters-des­ig­nate. What be­came a con­fir­ma­tion of the thick­en­ing plot came from the first ad­dress of the pros­e­cu­tor in the CCT case, Mr. Ro­timi Ja­cob, SAN. Ja­cob told the Tribunal that he was sure the case could be dis­pensed off in less than three weeks.

Ac­cord­ing to Ja­cob, he needed three days to prove his case while the de­fence could take five days to make their sub­mis­sion. He said the Tribunal should just take the next one week to con­sider the sub­mis­sions of the two par­ties and give its ver­dict.

This cal­cu­la­tion by Ja­cob clearly in­di­cated that the plan was to quickly con­vict Saraki, get him off the Se­nate Pres­i­dent’s seat and prove that the es­tab­lish­ment had once again taught a re­cal­ci­trant mem­ber a bit­ter les­son. The un­der­stand­ing of this plot must have led to the de­ci­sion by Saraki’s le­gal team to challenge the va­lid­ity and ap­pro­pri­ate­ness of the trial in other courts. And that led to the mat­ter trav­el­ing from the Fed­eral High Court through the Court of Ap­peal up to the Supreme Court.

Many thought the de­ci­sion to challenge the case in dif­fer­ent courts amounted to evad­ing trial and that only a guilty man would not sub­ject him­self to due process. How­ever, like a com­men­ta­tor wrote, there is no way a cock­roach can be in­no­cent in a trial or­ga­nized by the hens. In any case, there were se­ri­ous con­sti­tu­tional is­sues that had em­anated from the trial which re­quired higher courts to de­ter­mine.

One of such is­sues aris­ing from the pro­vi­sion of the Code of Con­duct Bureau and Tribunal Act gave those of us in Saraki’s team some mea­sure of con­fi­dence that the charges were filed in vi­o­la­tion of its Sec­tion 3 (d). The sec­tion states that be­fore a case is filed against any de­fen­dant, his at­ten­tion must have been called by the Bureau to the in­con­sis­ten­cies in his as­set dec­la­ra­tion form and he must have been given the op­por­tu­nity to make nec­es­sary corrections. It is only if he in­sists on the cor­rect­ness of the en­try that he can be brought be­fore the Tribunal.

This pro­vi­sion had been ap­plied in the Bola Ahmed Tin­ubu case when the de­fen­dant even be­longed to an op­po­si­tion party to the gov­ern­ment in power. The Tribunal had in the Tin­ubu case ruled that “...On Sec­tion 3 (d), I feel com­pelled by the argument of the learned SAN for the ac­cused. It is a con­di­tion prece­dent for re­fer­ring a charge to this Tribunal that the ac­cused ought to have been in­vited to ei­ther deny or ad­mit the al­le­ga­tions against him. This is miss­ing in this case as the com­plainant has no such ev­i­dence of a prior in­vi­ta­tion”. In that case, Sen­a­tor Tin­ubu was dis­charged on this ground by the same judge and the same Tribunal han­dling the Saraki case. The Saraki le­gal team also be­lieved that the is­sue of two mem­bers sit­ting in a three-mem­ber Tribunal raised a con­sti­tu­tional point on whether the Tribunal was prop­erly con­sti­tuted. The ques­tion to be an­swered here was: if there is a dis­agree­ment among the two mem­bers, what hap­pens?

Even­tu­ally, the apex court gave a rul­ing which con­ferred un­prece­dented pow­ers on the CCT. The Tribunal now has crim­i­nal ju­ris­dic­tion and could use the pro­vi­sions of Ad­min­is­tra­tion of Crim­i­nal Jus­tice Act. Also, it was de­cided that two out of a three-mem­ber Tribunal is a proper quo­rum. To­day, Saraki is be­ing praised for pa­tiently and con­sis­tently go­ing through the en­tire ju­di­cial ar­chi­tec­ture to prove his in­no­cence. Thank God that he did not lis­ten to the cease­less flak com­ing from the mob on his de­sire to demon­strate faith in the na­tion’s ju­di­cial process.

From the be­gin­ning, the Se­nate Pres­i­dent in his ini­tial ad­dress to the court had made it clear that the case was po­lit­i­cally mo­ti­vated and that he was be­ing per­se­cuted for emerg­ing as Se­nate Pres­i­dent against the wishes of some prin­ci­pal­i­ties in his party. He also said he be­lieves in the abil­ity of the ju­di­ciary to give jus­tice to the or­di­nary per­son.

The trial proper had been an eye opener. Hav­ing wit­nessed the en­tire trial from the be­gin­ning to the end, in­clud­ing some­times fol­low­ing up on dis­cus­sions by the le­gal team or par­tic­i­pat­ing fully in other talks con­cern­ing the case, one will say that the Saraki case has on its own be­come a lo­cus clas­si­cus case on the is­sue of as­set dec­la­ra­tion and an ex­am­ple of how not to pros­e­cute a case. Through­out the trial, I was al­ways won­der­ing how the gov­ern­ment hoped to get con­vic­tion with the shoddy in­ves­ti­ga­tion, un­re­li­able ev­i­dence, miss­ing gaps in its sub­mis­sion and the over­all dis­re­gard for due process.

Two in­stances will suf­fice here. The gov­ern­ment ac­cused Saraki of an­tic­i­pa­tory dec­la­ra­tion of a prop­erty which he had owned and bought two clear years be­fore he be­came Gov­er­nor, just be­cause a ri­val politi­cian in what now ap­peared a loose talk, claimed he knew that the sale, in 2005, of all the gov­ern­ment houses in the area where the prop­erty in ques­tion was lo­cated and that the prop­erty could not have been cor­rectly filled by Saraki in a 2003 as­set dec­la­ra­tion form. The star pros­e­cu­tion wit­ness was asked dur­ing cross-ex­am­i­na­tion if in the cause of in­ves­ti­ga­tions, he con­ducted a search on the said prop­erty lo­cated in Ikoyi at the Land Registry. He an­swered that he did in the La­gos State Land Registry in Alausa. He was fur­ther asked if he knew about the Fed­eral Land Registry, Ikoyi, where details of prop­er­ties owned by the Fed­eral Gov­ern­ment are domi­ciled. He drew blank. He ap­peared not to have ever heard of the Fed­eral Land Registry in Ikoyi. As it was even­tu­ally proved, the Fed­eral Gov­ern­ment sold the prop­erty in ques­tion to an in­di­vid­ual when Maj, Gen. Ab­dulka­rim Adisa was Min­is­ter. The fel­low sold it to Saraki in 2001 and Saraki be­came Gov­er­nor in 2003. Yet, the pros­e­cu­tion had made so much noise about the prop­erty be­ing sub­ject of an­tic­i­pa­tory dec­la­ra­tion,

Also, there was so much pro­pa­ganda about Saraki col­lect­ing double salary from Kwara State and Na­tional As­sem­bly. Yet, through­out the trial, the pros­e­cu­tor did not call any wit­ness in sup­port of the claim. It is the same way, that for over two years af­ter the com­mence­ment of the trial, the in­ves­ti­ga­tors never vis­ited all the prop­erty of the defendants be­ing cited in the case. At ev­ery point, it showed that the pros­e­cu­tion ob­vi­ously did not hope to get con­vic­tion based on dili­gent ef­forts to prove their case in the trial room. It re­lied on out­side the court means to con­vict the de­fen­dant. Per­haps, the plan was to just hu­mil­i­ate the Se­nate Pres­i­dent, use the case to in­cite Sen­a­tors against him so that he could be im­peached, dam­age his po­lit­i­cal fu­ture or rush him into a pre-de­ter­mined ju­di­cial out­come.

The rev­e­la­tions from the Saraki case showed that the anti-graft agen­cies need to be over­hauled. Its in­ves­ti­ga­tors re­quire com­pre­hen­sive train­ing, home and abroad. There is need for dili­gent pros­e­cu­tion and so the agen­cies should not be rush­ing to court with­out be­ing sure of their facts, case and wit­nesses. More ef­forts should be put into dili­gent pros­e­cu­tion in­stead of me­dia trial and need­less pro­pa­ganda.

There should also be a plan to de­velop a body of ex­pert prose­cu­tors within the sys­tem who are em­ploy­ees and well mo­ti­vated to do the need­ful in de­feat­ing the best de­fence lawyers. More im­por­tantly, the sys­tem should avoid get­ting into ma­li­cious pros­e­cu­tion and per­se­cu­tion.

On a per­sonal level, I learnt the les­son that a man should al­ways per­se­vere, dogged and fo­cused, par­tic­u­larly when you are sure of your case. Dr. Saraki’s case thought me about the need to re­main calm in the mid­dle of a storm and to al­ways keep your gaze fixed on the ball. Through­out the pe­riod of the trial, the man never lost his cool. He would al­ways look be­yond the case. Some­times, when we are strug­gling to con­tain the dam­age from the trial, he would in­struct the me­dia team to fo­cus more at­ten­tion on pub­li­ciz­ing the good works com­ing from the Se­nate and sug­gest more ideas on what the Se­nate can do to ad­dress the prob­lems con­fronting or­di­nary Nige­ri­ans.

He gives the same charge to all in­di­vid­u­als, or­ga­ni­za­tions, cor­po­rate bod­ies and gov­ern­men­tal in­sti­tu­tions whose rep­re­sen­ta­tives pay him of­fi­cial cour­tesy calls in his of­fice. His con­sis­tent call is: Give us ideas, pro­pos­als and sug­ges­tions on how to ad­dress the is­sues you have raised here. He would tell me and my col­leagues that we should not al­low this trial to de­fine his ten­ure as it was a pass­ing phase. “What will be per­ma­nent”, he said, “is the pos­i­tive con­tri­bu­tions we make in terms of im­proved leg­is­la­tions, cred­i­ble over­sight and prob­lem-solv­ing, pro­gres­sive and pos­i­tive in­ter­ven­tions that we make as an in­sti­tu­tion and as an in­di­vid­ual”.

From what I wit­nessed in this just con­cluded and rested case, very soon, as we have the Saraki Ver­sus Ko­toye case as a lo­cus clas­si­cus case in com­mer­cial law, the Saraki Ver­sus FRN case will soon be a sub­ject of study in the law school and fac­ul­ties of law in the univer­si­ties in the area of con­sti­tu­tional law, com­mer­cial law and crim­i­nal law, just as it will be cited for many years to come in court rooms.

Saraki

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