Tinubu And Anti-Corruption Law In Lagos: Closing The Stable Door After The Horse Has Bolted

By Johnmary Chukwukasi Jideobi, Esq.

The Constitution of a nation is the fons et origo, not only of the jurisprudence but also of the legal system of the nation. It is the beginning and the end of the legal system. In Greek language, it is the alpha and the omega. It is the barometer with which all statutes are measured

Tobi, J.S.C. [of blessed memory]

PREFACE:

On or around the 19^th day of April, 2021, the Lagos State Governor, BABAJIDE SANWOLU signed the Public Complaints and Anti-Corruption Commission Bill, 2021 into law. The Bill resulting in the law is an Executive Bill. In other words, it was a law proposed by and emanated from the Executive Arm of Lagos State Government. Ever since the Governor assented to the new anti-corruption law, tongues have been wagging because of some of its provisions considered in some quarters as a red herring as against a genuine attempt at effectively wiping out corruption from the governance space of that State. This contribution is a genuine attempt at demonstrating how the Lagos State Public Complaints and Anti-Corruption Commission Law, 2021 is headed for the rocks, being constitutionally void and incapable of achieving any aim its establishment is meant to advance, whether noble or ignoble.

THE CRITICISMS OF THE LAW:

Speaking on the new law, Dennis Alamu-George, Executive Secretary of Rescue Nigerian Economy Project, a civil society organisation said Governor Sanwo-Olu is only acting the script of Tinubu to put an end to his prosecution. Hear him:

“This new law is simply a case of Tinubu and his acolytes creating their own special anti-graft law different from the one that you and I are subject to. It is his own way of pulling the rug off the feet of the APC cabal which wants to use his corruption cases to deflate his presidential campaign. This is impunity, lawlessness, traits of dictatorship and demagoguery at play. If a man could do this because he controls only one State and he goes ahead to create a law aimed at exempting him from trial, if he becomes the President, he will create laws to suit himself or punish his opponents. This is a dangerous signal. This Lagos law will asphyxiate the EFCC and ICPC. It will narrow their scope of operations because other states will emulate Lagos and create similar laws. All out-going Governors will find the laws very attractive and as a protective shield and the law will only intensify the desperation of outgoing governors to put their lackeys in office by all means as successors. EFCC and ICPC will end up with the ability to deal with only federal officers who get involved in corrupt practices. This style may be what to expect from the next APC government at federal level. Laws that are made to protect specific individuals…Now Lagos has taken it to a more dangerous height. The Lagos law states that when a case of corruption is before the State House of Assembly, the anti-corruption commission cannot look into it again. So, all government needs when it is interested in protecting a person accused of corruption is to report the matter before the LSHA and leave the matter pending there….”

On his part, a former Second Vice- President of the Nigerian Bar Association (NBA), Monday Ubani, Esq. re-echoed the sentiment thusly:

“I am worried about the EFCC handing over the cases to Lagos State Government. Do they have the powers to prosecute? Can Lagos State Government prosecute Asiwaju Bola Tinubu? We all know that Tinubu is Lagos and Lagos is Tinubu. Is it Sanwo-Olu that will prosecute Tinubu? Can Lagos State prosecute Babatunde Fashola?  Obviously, if the EFCC should hand over the cases to the Lagos state government, that will be the end of those cases…”

[Culled from https://www.independent.ng/lawyers-differ-over-sanwo-olus-attempt-to-take-over-corruption-cases-from-efcc-icpc/ ]

WHAT ARE THE IMPUGNED PROVISIONS?

The Lagos State Public Complaints and Anti-Corruption Commission Law, 2021 by its Section 13(3) states that:

“The commission shall upon the commencement of this law take over the investigation of all anti-corruption and financial crime cases involving the finances and assets of Lagos State Government being investigated by any other agency.”

Section 13(5) of the same law provides that:

“the commission shall have the power to the exclusion of any other agency or body to investigate and coordinate the investigation of corruption and financial crimes cases involving the finances and assets of the state government.”

THE LAGOS LAW AND THE DOCTRINE OF COVERING THE FILED:

What does the ‘doctrine of covering the field’ say? The gist of the “doctrine of covering the field” is to the effect that a State House of Assembly shall not make a law that challenges an Act of the National Assembly where the later has evinced and demonstrated a sufficient intention of taking care of or covering the field of the subject matter of such legislation(s). The case of Ex-Parte McLean (1930) 43 CLR 472 at 473 bears this out. This doctrine of covering the field was propounded in Australia by that famous Judge, Dixon J. in the well-known case of The State of Victoria & Ors v. Commonwealth of Australia & Ors (1937) 58 CLR 618 at 630.

It has been said that this ancient doctrine, which is now of venerable antiquity, is well entrenched in our Constitution and has equally received overwhelming endorsements of the Nigerian Supreme Court as borne out by these authorities; Lakanmi v. Attorney-General Western State (1971) 1 UILR 201 at 209; A-G Ogun of State v. A-G of the Federation (1982) 13 NSCC 1; A-G of Abia State & 35 Ors v. A-G of the Federation (2002) 3 S.C. 106 and INEC v. Musa (2003) 1 S.C. (Pt. 1) 106.

The Supreme Court [through MUNTAKA-COOMASSIE, J.S.C.] in OSUN STATE INDEPENDENT ELECTORAL COMMISSION & ANOR v. ACTION CONGRESS & ORS (2010) LPELR-2818(SC) explained the import and operation of this constitutional doctrine thusly

By the doctrine of covering the field where the National Assembly has enacted a law on a particular subject, a State House of Assembly cannot enact a law on the same subject which is in conflict or inconsistent with the provisions of the enactment of the National Assembly. And where there is such an inconsistency between the provisions of any law enacted by the National Assembly and that enacted by the House of Assembly of a State, the law enacted by the National Assembly shall prevail and the law enacted by the House of Assembly of a State shall, to the extent of the inconsistency, be null and void. This is in tune with the provisions of Section 4(5) of the 1999 Constitution which prescribes that If any law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other law shall, to the extent of the inconsistency, be void. his articulates the doctrine of covering the field referred to and relied upon by Uwais (CJN) in A.G. ABIA STATE v A.G. FEDERATION (2002) 6 NWLR (Part 763) 264 at 391.

PREVIOUS SIMILAR ATTEMPT BY THE LAGOS STATE GOVERNMENT

With the benefit of historical antecedents, the current attempt by the Lagos State Government is not the first time it has attempted to assert that it is only the Lagos State House of Assembly that has the monopoly of legislation over corruption related matters. The Supreme Court dealt with whether the National Assembly has the constitutional power to legislate on corruption, in the light of the federal arrangement in the 1999 Constitution. The issue before the court was the constitutionality of the Corrupt Practices and Other Related Offences Act 2000 in the case of Attorney-General of Ondo State v. Attorney-General of the Federation (2002) 9 NWLR (Pt.772) 222 (2002) 6 S.C (Pt.I) 1. By an originating summons filed in the Supreme Court on 16th July, 2001 for adjudication in its original jurisdiction under section 232(1) of the 1999 Constitution, the plaintiff sued the 1^st defendant (i.e. Attorney-General of the Federation), and joined the 2nd-36^th defendants as parties whose rights may be affected by the action, and asked for the following reliefs, among others:

1. A determination of the question whether or not the Corrupt Practices and Other Related Offences Act, 2000, is valid and as a law enacted by the National Assembly and in force in every state of the Federal Republic of Nigeria (including Ondo State).
2. A determination of the question whether or not the Attorney-General of the Federation (1st defendant) or any person authorised by him can lawfully initiate legal proceedings in any court of law in Ondo State in respect of any of the criminal offences created by any of the provisions of the said Corrupt Practices and Other Related Offences Act, 2000.

In analyzing the position of Lagos State Government [as advanced by Professor Osibanjo, the then Attorney-General of that State] on whether the National Assembly had powers to legislate in other to give effect to Section 15(5) of the constitution that mandates the abolition of corruption by the State, the Supreme Court [Per Ogwuegbu, J.S.C.] beautifully captured the agitations of the Lagos State Government thusly:

Professor Osinbajo, learned Attorney-General for the 25th defendant submitted that under the provisions of section 4(2) and (3) of the constitution, the National Assembly is empowered exclusively to make laws for the peace, order and good government of the federation or any part thereof with respect to any matter included in the exclusive legislative list set out in part 1 of the second schedule to the constitution and in addition to above, it has power to make laws with respect to any matter in the concurrent legislative list set out in the first column of part II of the second schedule to the constitution to the extent prescribed in the second column opposite thereto…He further submitted that … such a generalized criminal law on corruption and other related acts can only be validly enacted by a State House of Assembly and not the National Assembly.

After an in-depth analysis of the wide-ranging constitutional issues agitated by the parties, the Supreme Court, among other far-reaching pronouncements, came to the following views:

1. Going by the definitions of “State” and “Government” in section 318(1) of the 1999 Constitution, the directive under section 15(5) of the Constitution that “the State shall abolish all corrupt practices and abuse of government” applies to all the three tiers of government. In that case, the power to legislate in order to prohibit corrupt practices and abuse of power is concurrent and can be exercised by the Federal and State Governments by virtue of section 49(2), 4(4)(b) and 4(7)(c) of the Constitution
2. Although the power to legislate on the subject of corruption and abuse of office is given to the National Assembly and State House of Assembly, when both exercise the power, the legislation by the National Assembly will prevail by virtue of section 4(5) of the Constitution.

[for extra analysis, refer to: THE RULE OF LAW AND ANTI-CORRUPTION CRUSADE IN NIGERIA BY: HON. JUSTICE (PROFESSOR) NIKI TOBI (of blessed memory) published and found on http://www.nigerianlawguru.com/articles/constitutional%20law/THE%20RULE%20OF%20LAW%20AND%20THE%20ANTI%20CORRUPTION%20CRUSADE%20IN%20NIGERIA.pdf ]

The Supreme Court also considered the same issue in Chief Olafisoye v. Federal Republic of Nigeria [2004] 4 NWLR (Pt. 864) 580 and for the same reasons as in Attorney-General of Ondo State v. Attorney-General of the Federation (supra) came to the same view as that contained in Attorney-General of Ondo State v. Attorney-General of the Federation (supra).

THE GOVERNOR SPEAKS ON THE PURPOSE OF THE IMPUGNED LEGISLATION:

On the day of assenting to the Bill, the Governor made the following speech bringing to the fore the underlying intent of the anti-corruption legislation:

The bill establishing Public Complaints and Anti-Corruption Commission is an important legislation critical to the delivery of quality services to the citizens. When we came in, we had said we would be accountable and responsible in the appropriation of the State’s resources. We want to stand in front of the citizens to give account on how public funds are being spent. To give credence to this promise, the executive arm initiated the bill and sent to the Assembly for approval. We believe that this law would not only ensure accountability of public funds, responsibility of public office, but also promote dialogue among public officers to keep the trust of the people in the discharge of their duties in line with transparency. The anti-corruption commission will ensure that all approved activities are implemented in accordance with budgetary allocation

The above is found on https://lagosstate.gov.ng/blog/2021/04/19/lagos-to-establish-anti-corruption-agency-as-sanwo-olu-signs-bill-deepening-accountability-in-governance/.

ADDRESSING THE NEGATIVE INSINUATIONS:

Notwithstanding the publicly announced intention underlying the legislation by the Governor, the insinuation persists that the law was promulgated to provide a former Governor of that State, Bola Ahmed Tinubu, a shield from possible criminal prosecution by Federal Government Prosecutorial Agencies such as the Economic and Financial Crimes Commission (EFCC), Independent Corrupt Practices Commission (ICPC) and Code of Conduct Bureau (CCB) in a manner as not to deflate his rumoured presidential ambition. In an article titled: Lagos Anti-Corruption Commission Law – A Red Herring? Authored by one Bámidélé Adémólá-Olátéjú and published on: https://www.premiumtimesng.com/opinion/457862-lagos-anti-corruption-commission-law-a-red-herring-by-bamidele-ademola-olateju.html , the following strong suspicion is found:

Time will tell what this law was designed to achieve. Whatever happens, it is wrong to use, cause to use or attempt to use, the instruments of government to cover misdeeds or seek to punish some persons or groups. Legislating to suit some powerful interests is a vicious tendency. It is inappropriate and unacceptable that those who should work for common good, are finding clever ways to work against the values of accountability and responsibility.

It was Robert Greene who in his work ‘The 48 Laws of Power’ propounded Law Number 3 thereof thusly:

If you keep people off-balance and in the dark, they can’t counter your efforts. Send them down the wrong path with a red herring or create a smokescreen and by the time they realize what you’re up to, it will be too late for them to interfere.

THE ACHILLES’ HEEL OF THE LAGOS STATE ANTI-CORRUPTION LAW:

If the allegations made against the underlying legislative intent of the Lagos State anti-corruption law are taken to be true or well founded, then here is a bad news to the promoters of the law; It shall not succeed! It shall never stand! Reason? Conceded that both the National Assembly and the State Houses of Assembly have concurrent legislative powers to make anti-corruption laws, Chief Olafisoye v. Federal Republic of Nigeria (supra), where the both legislative houses make laws on the same subject matter, as here, even though that made by the State House of Assembly is valid, Lakanmi v. Attorney-General Western State (supra), it cannot become operational while that made by the National Assembly (here EFCC and ICPC Acts) still operate, Attorney-General of Ondo State v. Attorney-General of the Federation (supra). The law made by the State House of Assembly, in the circumstances, will go into abeyance, A-G of Abia State & 35 Ors v. A-G of the Federation (2002) 3 S.C. 106 and cannot operate, A-G Ogun of State v. A-G of the Federation (1982) 13 NSCC 1.

In the case of the Lagos State anti-corruption law we are dealing with, for providing that the Commission “shall have the power to the exclusion of any other agency or body to investigate and coordinate the investigation of corruption and financial crimes cases involving the finances and assets of the state government” the said law has set itself on a collision course with the Federal Laws setting up both the EFCC and ICPC and therefore void by dint of Section 4 (5) of the amended 1999 Constitution, INEC v. Musa (2003) 1 S.C. (Pt. 1) 106. Assuming, arguendo, without conceding, that the Lagos State anti-corruption law is valid and can operate we still insist that none of the past Governors of Lagos State, Lagos State Speakers or other officials of Lagos State Government accused or being accused of corrupt practices can be tried under this new law. The reason is simple. The law punched above its weight by purporting to operate to the ‘exclusion of any other agency or body’ and ‘take over the investigation of all anti-corruption and financial crime cases involving the finances and assets of Lagos State Government being investigated by any other agency’.

Being a criminal legislation, both the National Assembly and the State Houses of Assembly are altogether forbidden, by the Constitution, from making any criminal law that has retrospective or retroactive effect. In other words, all penal legislations in Nigeria must look forward (prospectively) and can never look backwards (retrospectively). This is what the Constitution says in its Section 4(9) where is lucidly spelt out thusly:

Notwithstanding the foregoing provisions of this section, the National Assembly or a House of Assembly shall not, in relation to any criminal offence whatsoever, have power to make any law which shall have retrospective effect.

CONCLUSION:

There exists a convergence of both scholastic and judicial view on the necessity of abolition of corruption in the country. For instance, no less an institution than the Supreme Court in Attorney-General of Ondo State v. Attorney-General of the Federation (supra) acknowledged this social malady, unequivocally condemned it and gave a heart-warming support for any legislation aimed at its abolition in this tasty prose of Ogwuegbu, J.S.C.:

The court is conscious of the history of corruption in Nigeria… Any legislation on corruption and abuse of power must be of concern to every Nigerian … Such an enactment like all enactment of the National Assembly will be of paramount force. I must also point out that all Nigerians except perhaps those who benefit from it are unhappy with the level of corruption in the country

In his earlier referenced article, Late Hon. Justice (Professor) Niki Tobi admirably captured it thus:

In sum, one innate and cancerous problem in Nigeria is corruption. It is one problem which virtually the whole country seems to disclaim and detest, but which unfortunately is the bane of the country. It is the issue most talked about in the country, particularly in contemporary times, and yet no solution has been found and none is in proximity or in sight. Corruption is a social malady that is fast eating up the fabrics and the dynamics of the Nigerian economy. It blinds the eyes of the corrupt persons to do the wrong thing most of the time if not all the time. It is an evil, a complete evil. It must be destroyed from the society for good of the society and mankind.

It is against the background of the foregoing that we cling to the unwavering view that the fight against corruption must not be reduced to a parody or turned into a caricature of same. All the decisions of the Supreme Courts and the ratiocinations underpinning those decisions have always been at the disposal (or ought to have been at the disposal) of the Lagos State House of Assembly, the Lagos State Executive Council and their Legal Departments which would have, out of prudence, dictated against the commission of this legislative gaffe, a rather wasteful legislative enterprise! Now that the blunder has sadly been committed, a timeous suit before the appropriate Court of Law, may become necessary to urgently clear the debris accumulated by this ill-advised legislative exercise so that it does not fester to other states of the Federation. The leprous finger of that law must be axed now and not be allowed to go gangrenous!

By the concatenation of the forgoing analysis, those who may have thought that this anti-corruption law is a perfect shield for Tinubu will begin now to realise what they are up against; swimming against the tide, the tide of the extant law! Their effort is a little too late, an exercise in futility. They are fetching water with a hollow basket, a fishing expedition in the desert! Such artifice, at this eleventh hour, cannot avail. They failed to set forth at dawn, as a result, they are now attempting to shut the stable door when unfortunately, the horse has escaped. Such a pity! The dusk is here and the journey cannot be successfully completed.

We find here a convenient place to stop.

JOHNMARY CHUKWUKASI JIDEOBI, Esq.

This author may be reached on: joannesmaria2009@yahoo.com