Malami (SAN), who is also the Minister of Justice, is under fire for the action, which senior lawyers and rights activists described as illegal.
Their argument: only the Economic and Financial Crimes Commission (EFCC) which recovered the loot is legally empowered to sell them off according to the Act setting up the anti-graft agency.
But Senior Advocate of Nigeria (SAN) Seyi Sowemimo differed. He reasoned that from the wording of the law, the AGF may “technically” be acting within his powers.
The 21-man panel, whose members were inaugurated on Monday, is expected to sell off all assets forfeited in favour of the Federal Government within six months.
Malami said President Muhammadu Buhari approved the constitution of the committee, which is chaired by the Solicitor-General of the Federation and Permanent Secretary, Federal Ministry of Justice, Mr Dayo Apata (SAN).
Its members include the representatives of the Office of the Chief of Staff to the President; the Federal Ministry of Justice; Federal Ministry of Finance; Federal Ministry of Works and Housing, Auditor-General of the Federation, Economic and Financial Crimes Commission, Independent Corrupt Practices (and other related offences) Commission.
They also include the representatives of Nigerian Army, Nigerian Navy Nigeria Police, Nigeria Security Civil Defence Corps, Nigerian Maritime Administration and Safety Agency, Department of State Security, National Drug Law Enforcement Agency, Department of Petroleum Resources, National Oil Spillage, Detection and Response Agency, Bureau of Public Procurement, and the Civil Society Organisation.
The rest are the representatives of the youth, the media, and any other Nigerian with exceptional expertise that could add value to the Committee as deemed fit by the Attorney General of the Federation.
Some law experts said the Economic and Financial Crimes Commission (EFCC) Act 2004 empowers the EFCC to engage in such disposal of forfeited assets.
They also argued that it was wrong for the Minister to appear hasty in disposing of those forfeited assets when the issue formed part of the allegations in a petition he (the AGF) wrote against suspended EFCC chair, Ibrahim Magu, which is being considered by the Justice Isa Ayo Salami Judicial panel.
One of the experts argued: “For the avoidance of doubt, Section 31: (1) and subsections (2), (3), (4) and (5) on Final Disposal of Forfeited Property of the EFCC (Establishment), Act 2004, are very clear and unambiguous on how forfeited properties can be sold.
Section 31 (1) states as follows: “A copy of every final order forfeiting the assets and property of a person convicted under this act shall be forwarded to the Commission.
(2) Upon receipt of the final order pursuant to this section, the Secretary to the Commission SHALL (emphasis mine) take steps to dispose of the property concerned by sale or otherwise and where the property is sold, the proceeds thereof shall be paid into the Consolidated Revenue Fund of the Federation.
(3) Where any part of the property included in a final order is money in a bank account or in the possession of any person, the Commission shall cause of a copy of the order to be produced and served on the manager or any person in control of the head office or branch of the bank concerned and that manager or person shall forthwith pay over the money to the Commission without any further assurance than this Act and the Commission shall pay the money received into the Consolidated Fund of the Federation.
(4) The Attorney-General of the Federation may make rules or regulations for the disposal or sale of any property or assets forfeited pursuant to this Act.
(5) Any person who, without due authorisation by the Commission, deals with, sells or otherwise disposes of any property or assets which is the subject of an attachment, interim order or final order commits an offence and is liable on conviction to imprisonment for a term of five years without option of a fine.”
When contacted yesterday, Special Assistant to the AGF on Media, Dr. Umar Gwandu promised to address the issues raised. But he never got back.
Among those who spoke were: Constitutional lawyer Jiti Ogunye, Abuja-based lawyers, Mr Oluwatosin Ojaomo and Mr A. Wisdom, Socio-economic Rights and Accountability Project Executiive Director Adetokunbo Mumuni and CACOL Executive Director Debo Adeniran.
Sowemimo noted that under S.31(4) The Attorney-General of the Federation may make rules or regulations for the disposal or sale of any property or assets forfeited pursuant to this Act.
“So, if he makes a regulation that the property should be disposed by a 21-man panel, that may be in compliance with the Act.
“Technically, he may be acting within his powers and then such a large panel now gives me the impression that he wants to have a panel whereby he can say that ‘look, these people are from diverse interest groups and they’re not under my absolute control.”
Sowemimo also observed that if part of the properties to be disposed of by the committee are also under consideration by the Justice Salami Panel investigating Magu, “they have to be careful to address whatever concerns he raised before disposing of the assets.”
For Ogunye, the matter is straightforward: the minister acted beyond his powers.
With specific regard to disposal of forfeited property, Ogunye argued relying on section 31, in particular subsection (2) and (4) that “It is our considered view that as the law stands today, the Secretary to the Commission is the appropriate authority that shall superintend over sale and disposal of forfeited properties and the deposit of the proceeds thereof into the consolidated funds of the Federation. So, it is the duty of the secretary. And it stands to reason; the secretary, secretary-general of an organisation is in charge of a secretariat and is the one that has the power to keep chattel of the association and have a list of inventory of that association etc.
“That power of the AGF to make this regulation cannot subvert the categorical power donated by the statute to the secretary. In other words, any regulation that the AGF makes will be like a subsidiary legislation or a regulation made under the Act, It is the law that such regulation cannot override the clear provisions of the Act. There is no regulation that the AGF can make to take over the functions or powers as donated by the Act,” He said such action by the AGF would be “null and void” in the context Of Section 31 (1,2 & 3).
My view therefore is that what the AGF has done is fraught with illegality.”
Jiti reasoned further that there is another cloud over the AGF’s panel because part of the issues submitted to the Justice Ayo Salami panel concerned
“We know that there is a panel of inquiry set up by the President regarding the activities of the Commission and in particular the conduct of its former Acting Chairman and part of the issues submitted to that panel therefore is the issue of handling and disposal of assets, forfeited to the Federal Government of Nigeria. As we know, the panel is yet to submit its report to Mr President. There could have been reports that there was an interim report, but interim reports … are neither here nor there. A panel of inquiry under the Tribunal of Inquiry Act, is expected to submit a final report which will attract government consideration and determination of the issues that are recommended and government will then generate a white paper…
Can a presidential order take precedence over an extant law? I think, there is need to put this in the public domain.
Ojaomo’s views were similar. He said: “The AGF has no power to use a regulation to sell assets recovered by the EFCC. It has statutory implications; whoever buys it will be taking a risk.
“The action of Malami setting up a committee to dispose assets forfeited to the FG through the EFCC is a clear violation of the EFCC Act and it carries a very serious penalty under the EFCC Act. The law is bigger than anyone. No matter how big a person is, the law is bigger.”
SERAP Executive Director Adetokunbo Mumuni advised that it was proper to follow the law as enacted by the legislators, in the spirit of democracy.
“Whatever we must do as the government of Nigeria, we must do it according to law. If there is a law setting up the EFCC, whatever you must do, saying you want to act for the EFCC, you must act according to the EFCC Act. So, if there is a law that says EFCC assets can only be disposed of by the EFCC Secretary, I wonder what basis the AGF will have to act contrary to law. Remember the AGF is supposed to be the chief law officer of Nigeria and it will not be proper for the AGF to now be the major violator of the law.
Coalition Against Corrupt Leaders (CACOL) Chairman Debo Adeniran said the AGF appeared to be “jumping the gun. This is the wrong time to dispose of assets.
“The AGF has accused someone of disposing of seized assets without authorisation and there have been counter accusations that he has taken interest in some of the assets and their disposal. I believe that the President is being too slow in intervening in issues like this, otherwise the AGF should also be on leave just like Magu has been on suspension. After all, it was on the basis of a mere allegation that the President suspended Magu.” (The Nation)
