Opinion: How Saraki escaped 10 year ban, forfeiture of assets.By Yusuph Olaniyonu
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 then 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 organised 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 were 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 paid 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.
Olaniyonu is Special Adviser (Media and Publicity) to the Senate President.