By Emeka Okeke

It is no longer a news that the Economic and Financial Crimes Commission (EFCC) is allegedly planning to arraign two staff of NBA Sarah Omeigha Ajibola and John Ozovehe Demide whom they claimed rigged the 2018 general elections.

The 14 counts charge has allegedly been pressed against duo before the Lagos Federal High Court.

For clarity of purpose, permit me to reproduce Counts 1 & 2 as reported:

COUNT-1

“That you, Sarah Omeigha Ajibola and John Ozovehe Demide sometime in August 2018, within the Jurisdiction of this Honourable Court conspired amongst yourselves to knowingly alter the email addresses and phone numbers of about 1004 (One Thousand and Four) eligible voters of the Nigerian Bar Association 2018 elections with the intention that such inauthentic data will be acted upon as genuine during the said election and you think thereby committed an offence contrary to Section 27 (1)(b) of the Cybercrime ( Prohibition, Prevention etc) Act, 2015 and punishable under Section 13 of the same Act.”

COUNT-2

“That you, Sarah Omeigha Ajibola and John Ozovehe Demide sometime in August 2018, within the Jurisdiction of the Honourable Court aided the commission of an offence to wit: to knowingly alter the email addresses and phone numbers of about 1004(One Thousand and Four) eligible voters of the Nigerian Bar Association 2018 National elections with the intention that such inauthentic data will be acted upon as genuine during the said election and you thereby committed an offence contrary to Section 27 (1)(b)of the Cybercrime (Prohibition, Prevention etc) Act 2015 and punishable under Section 13 of the same Act.”

The charge was reportedly filed on 5th day of May, 2020 by the suspended EFCC’s prosecutor, Rotimi Oyedepo and some other persons.

It is of course a laudable step in the right direction when efforts are being taken with a view to instilling sanity in Nigerian Bar Association’s (NBA) electoral system. This is because the NBA as a professional platform is expected at all times to be above board and like Caesar’s wife or Thesaurus of untainted goodness.

However, the situation has elicited mixed reactions amongst lawyers leading to several questions. Has EFCC the right to prosecute election rigging? Assuming EFCC has such power, why were the Defendants not charged along with the company that conducted the elections As well as the 2018 Election Committee Chairman, the former president and the Registered Trustees of the Nigerian Bar Association? Why is the charge coming now?

POWER OF EFCC TO PROSECUTE PERSONS FOR THE ALLEGED RIGGING OF NBA ELECTIONS

It is not enough to pursue a right course, same must be done within the ambit of the law, else, it will suffer defeat. Hence, the question: Has EFCC the vires to prosecute election rigging of the Nigerian Bar Association?

The EFCC is an institution established by virtue of the EFCC Act, 2003. It therefore means that any action of the institution must be tied to its enabling Act. The Defendants are charged under the Cybercrime (Prohibition, Prevention) Act, 2015.

Section 7(2) of the EFCC Act lists the categories of enactments the Commission can enforce: Money Laundering Act, Advance Fee Fraud Act, Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act 1994, as amended; The Banks and other Financial Institutions Act 1991, as amended; and Miscellaneous Offences Act. Cybercrimes Act is obviously missing here.

Door is not closed yet, there is still an option. Section 7(2)(f) provides that EFCC can enforce “Any other law or regulations relating to economic and financial crimes, including the Criminal code of penal code”

By the above provision, Cybercrime Act can ordinarily fall within the ambience of “any other law or regulations”. The difficulty however is the leg that limits the any other law or regulations to “economic and financial crimes”?

EFCC Act defines the term ‘economic and financial crimes’ to mean the “non-violent criminal and illicit activity committed with the objectives of earning wealth illegally either individually or in a group or organized manner thereby violating existing legislation governing economic activities of the government and its administration and includes any form of fraud, narcotic drug trafficking, money laundering, embezzlement, bribery, looting and any form of corrupt malpractices, illegal arms deal, smuggling, human trafficking and child labour, illegal oil bunkering and illegal mining, foreign exchange malpractices including counterfeiting of currency, theft of intellectual property and piracy, open market abuse, dumping of toxic wastes and prohibited goods etc” (Section 46 of the EFCC Act).

In this situation, is allegedly rigging 2018 NBA Elections (specifically alter the email addresses and phone numbers of about 1004(One Thousand and Four) eligible voters) an “economic and financial crimes”? It is submitted that the Nigerian Police Force or Attorney General of the Federation should be the appropriate institution to prosecute actions such as this.

EFCC cannot exercise a power that is not granted by its enabling Act. The often quoted dictum of Lord Dennig in Macfoy v. U.A.C. (1962) AC 158 says you cannot put something on nothing and expect it to stay there, it will collapse. Hon. Justice Niki Tobi echoed the same suggestion in OWNERS VS ADENIJI (1993)2 NWLR(pt 274) that:

“One can add something to something, but one cannot add something to nothing because there will be nothing to receive the something. The something which will have nothing to support it will fall away, following Newton’s law of gravity or gravitation”

It is therefore submitted that EFCC had no right under the law to act beyond the powers granted to it by law. In PSYCHIATRIC HOSPITAL MANAGEMENT BOARD V. EJITAGHA (2000) LPELR-2930(SC), Supreme Court of held ad follows:

“It is well settled that a public body invested with statutory powers such as those conferred upon the corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably.” Per Uwaifo, JSC. (P.15, Paras.G-A)

EFCC seems to have forgotten that it was the same overzealousness that led to the quashing of charges it filed against a Justice of the Court of Appeal. See Justice Hyeladzira Anita Nganjiwa v. FRN (2017) LPELR-43391(CA)

WHY WERE THE DEFENDANTS NOT CHARGES ALONG WITH THE COMPANY THAT CONDUCTED THE ELECTION

Assuming EFCC has the power to prosecute those that allegedly rigged the 2018 NBA elections, why they failed, refuse and or neglected to charge them along with the company that conducted the election and others involved in it, is a mystery.

It is my view that all those involved should have been charged to court as well. It is not a matter of necessity though, but a matter of a bystander perceiving Justice in the circumstance.

I should not be misconstrued as indicating the company and others. Besides, by the authority of Idiok v. State All FWLR (2008) (Pt. 421) 797 at P. 821, paras A -B, prosecution has discretionary power to determine whom to charge for an offence.

I am therefore not in a position to question them. The benefit of doubt is that, Perhaps, investigation did not link the company and others to the offence. I will not say more on this

WHY THE CHARGE WHEN NBA ELECTION IS APPROACHING

Another question that begs for swift answer is: why is the charges coming now? The NBA National Elections is just few days away, it is in my view suspicious to press charges at this time of the day.

To give a benefit of doubt, EFCC has been investigating for the past two years? Well, a logical reply would perhaps be appreciated, if any.

Furthermore, it would be recalled that suspended Rotimi Oyedepo, EFCC Prosecutor, once upon a time vehemently urged the Court to remand the incumbent NBA President when he was facing charges pressed against him. I hope the recent statement issued by the wife of NBA President is still fresh in our memories?

Similarly, the same Rotimi Oyedepo before his suspension was the one that led the EFCC team to press the present charges before his suspension.

A community marriage of all these circumstances, to my view, leads to a resounding suspicion. The EFCC is empowered by a legal framework to act, to restate the obvious.

Well, if the Law allows me, I would have alleged bad faith but the intention of the Law makers are presumably pure. I am reminded by the words of the Supreme Court in the famous case of EGBE vs. ALHAJI (1989) 1 NWLR (PT.128) 546 thus:

“It is also a rule of interpretation to assume that, the legislature mean what they have actually expressed…there is no bad faith or good faith contained therein expressly.”

Whilst we continue to keep our fingers crossed to see how the event unfolds, it is my unalloyed position that it is a right step to always sanitize our electoral system but to quickly add that he who seeks to sanitize should do so with sanity and not actuated by a vendetta mission.

Emeka Okeke, Writes From Dallas, US