OPINION: An injunction against the people

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By Felix Gbarako

 

As politicians gear up for the 2023 general elections, strange and familiar issues will be thrown into the fray by different groups to gain public attention and advantage over opponents, at state and national levels.

This time, accountability and unresolved financial indictments will be major issues straddling the political environment, especially in Rivers state.

In their recent memorandum, The Rivers Conscience Initiative, RCI, a non-partisan group sounded warning bells against foisting of questionable candidates on the state electorate.

The memo takes a tough stance on the quality of candidates selected for governorship contest by two major parties in the state. From their recent outing, RCI believes that Rivers people are short-changed, economically and socially considering the huge resources accruing to government, without corresponding impact on development indices.

RCI does not see the situation improving, especially with the court injunction obtained by a former governor in March 2007, which restrains the EFCC from arresting, detaining and arraigning him based on investigation of the state’s finances, during his tenure.

The Rivers Conscience Initiative asserts that persons with questionable records have hijacked the governorship race for 2023, largely because of this legal impediment against investigation and prosecution of state officials by EFCC.

The group sees this as worrisome and want affected governorship candidates of the PDP and the APC respectively to clear their names of allegations of corruption, as it is unacceptable for anyone with integrity deficit to seek the people’s mandate.

While throwing its support behind the current administration’s efforts in recovering misappropriated funds, and prosecuting persons alleged to have done so, RCI expresses dissatisfaction with the government’s ambivalence in shielding some persons from arrest by the EFCC while arraigning others before state high courts.

The colossal amount allegedly stolen belongs to Rivers people, and the details are already in the public domain. Besides the ongoing pranks and jostle between rival politicians regarding who stole what and who stole more, there is need to understand how Rivers state got into such a mess.

Some nagging questions to resolve include; why has the injunction prevailed until now, is it because justice was served? Did the EFCC really lose anything at that trial, or were the actual losers the people of Rivers state? Is the state the better for it…are the impoverished farmers, fishermen and petty traders recompensed by this injunction? Who are the real beneficiaries of the judgement by Justice Ibrahim Buba in March 2007? Why is it difficult for successive administrations to vacate the curious injunction for the greater benefit of Rivers people, than allow it subsist for individual and clique interest?

It is known fact that at the time the injunction was granted against the EFCC, the same agency was investigating 15 other state governors for misappropriation of funds and money laundering, amounting to N143 billion. They include Orji Uzor Kalu, Rasheed Ladoja, Alao-Akala, Turaki, Joshua Dariye and Chimaroke Nnamani, among others. They eventually faced trials, with many sentenced to prison terms.

A popular narrative suggests that an interim report put together by Mr. Nuhu Ribadu, then Chairman of the Economic and Financial Crimes Commission – EFCC, claimed that the commission had evidence of financial fraud amounting to N100bn of Rivers funds, allegedly diverted by Dr. Peter Odili.

This narrative stated that the report surfaced when Odili indicated his intention to contest the presidency under the People’s Democratic Party (PDP). While still the governor of Rivers State, Odili, on February 22, 2007, instructed the then state Attorney General and Commissioner for Justice, Odein  Ajumogobia, SAN, to challenge the powers of the EFCC to probe the (financial) affairs of the state government . He had argued that such attempt by the EFCC was “prejudicial to the smooth running of governance in Rivers state”. The narrative did not however explain why this disturbance ‘to smooth running of governance’ did not apply any other state.

According to media reports, the various parties in the suit “were fully represented by counsels.” On March 23, 2007, Justice Ibrahim Buba, then of the Federal High Court, Port Harcourt, who adjudicated on the case, granted all the declaratory and injunctive reliefs sought by Odili.

However, the media did not report whether indigenes of the state, or tax-paying residents were joined in the suit, either as plaintiffs or as defendants. Strangely, Rivers people on whose mandate Governor Odili served and whose money he allegedly diverted, and whose money paid for the legal defense, were blindsided while all these went on.

Maybe it is safe to suggest, that the owners of the money were mere onlookers, in a matter of grave importance to them. Many have wondered whether the only perspective to this matter is the judicial angle. Is not there a moral question to all of this?

Maybe, there is no point discussing the principles and distinctions between what is right and what is wrong. Nevertheless, we ought to understand the import of the injunction on Rivers state and its indigenes.

Interestingly, the state government recently filed a nine-count charge against four individuals and three corporate bodies (PHC/1818/CR/2022), bordering on conspiracy, cheating and stealing. The accused allegedly stole the sum of $274,563,599.59, among other things. Simple arithmetic will show that when converted to the current naira exchange of N680 to the dollar, we should be staring at a shocking N186.7 billion.

Meanwhile, Dr. Peter Odili’s alleged misappropriation of N100 billion from the state’s treasury when converted from the exchange rate of N125 to a dollar in 2007, to the current exchange of N680 to the dollar, the diverted funds in today’s value will be $800 million or a staggering N544 billion.

I have a sickening feeling that the ordinary man may never know the full details of what happened to these monies. Even without including the monies (N117 billion) EFCC alleges was misappropriated by officials of the current administration, it is clear that a lot of money is in contest and we need to awaken from this nightmare.

Is there any wonder that the elections into political offices in Rivers state, especially that for governorship is gladiatorial – grueling, ruthless and deadly? Can this be why decent people with required competences stay away from the rancid environment of combative politics, where barbarism counts over and above ideas and character?

There have been several reports in the media of intentions and attempts to end the curious injunction. The Senate was reportedly working to upturn the Odili’s “perpetual injunction”. According to media reports, Sen.Chukwuka Utazi Senate Committee Chair on Anti-corruption and Financial Crimes, during a 2016 tour to EFCC offices in Port Harcourt had proposed an amendment to the EFCC Act, which was to upturn the injunction.

On a request by the then regional coordinator of EFCC, Mr. Ishaq Salihu who lamented that the “perpetual injunction” obtained by Odili was affecting the morale of the operatives in prosecuting suspects in the region. Senator Utazi promised to seek an amendment to the relevant EFCC Act. Nothing has been heard since then.

Incidentally, the EFCC, under its pioneer Chairman, Nuhu Ribadu, had taken the matter to the court of Appeal in 2007. This was followed by a fresh Appeal filed by the same EFCC in 2008. Both appeals are still pending.

According to the judgement handed down in March 2007, only the State House of Assembly has the right to investigate the financial activities of the state government. Did this judgement inspire creative politicians to pocket the legislature and indulge themselves without caution?

In January 2020, the then acting Chairman of the EFCC, Ibrahim Magu, during a visit to media houses, said that the inability of the agency to prosecute former governor of Rivers State, Dr. Odili was because the Court of Appeal in Port Harcourt frustrated the effort of the commission by refusing to list its appeal since 2008.

The EFCC’s fight is understandably hinged on Section 47 of its enabling Act (2004), which mandates the agency to combat financial and economic crimes, including public, corporate and private, anywhere in the federation.

My layman’s understanding is that perpetual injunctions are ordered by High Courts, and like any High Court judgment, the injunctions can be appealed, especially where the case is not time-barred.

Some lawyers have also challenged the opinion of a perpetual injunction existing in the case of Odili versus EFCC. They argue that even when a fresh suit against the EFCC and the Attorney General of the federation seeking to bar them from any attempt to arrest the plaintiff was filed, it sought to enforce the judgment of Justice Buba by way of exparte order.

These lawyers believe that while the learned judge declined to grant the prayer in the new suit, he held that his earlier judgment of March 7,2007 was binding on all parties. This was what the EFCC erroneously calls “perpetual injunction”. For these lawyers, any claim that the Court granted Odili permanent injunction is tantamount to “twisting the truth.”

In 2009, a UK based lawyer, Osita Mba, reportedly petitioned the National Judicial Council (NJC) and sought to remove the shackle from EFCC, over Odili’s perpetual injunction granted by Justice Ibrahim Buba. Mba had asked NJC under the leadership of Justice Idris Kutigi to remove Justice Buba, because the perpetual injunction granted by Justice Buba was illegal. He described the injunction as “gross incompetence and flagrant abuse of powers amounting to judicial misconduct and violations of the code of conduct for judicial officers.”

There has been no comment from the NJC on the matter.

Is it not curious that no lawyers from Rivers state saw the need to do what Mr.Osita Mba did, nor did any Rivers lawyer follow up from where he stopped?

While delivering his N600 million judgement against the EFCC in October 2018, George Omereji, presiding Judge of Port Harcourt High Court, advised the anti-graft agency to appeal the judgment of 2007 if it was not satisfied with the injunction, rather than inviting state officials for investigation. He insisted that the EFCC should obtain a relevant court order setting aside the ruling by Justice Ibrahim Buba of the Federal High Court, before taking action on Rivers State accounts.

It is obvious that if the injunction subsists, elections to the office of governor will continue to attract political adventurers and scoundrels, and persons bent on raiding the treasury. The welfare of the average Rivers man or woman is not important for most politicians in the state. Sadly, it will remain a sordid affair during elections, with political gangs battling for keys to the state’s treasury.

I am therefore inclined to join the Rivers Conscience Initiative, to call on Governor Wike to immediately cooperate with the EFCC, and vacate the court injunction stopping the agency from investigating Rivers State finances. The governor needs to achieve this before he leaves office, and bequeath a worthy legacy to the exploited and beleaguered peoples of Rivers state.

 

  • Felix Gbarako, a security consultant, writes from Lagos.

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