SUIT TO REMOVE IBRAHIM MAGU: LESSONS IN PUBLIC INTEREST LITIGATION FOR CITIZEN JOE IGBOKWE by Johnmary Jideobi, Esq.

Background Fact:

On the 1^st of July, 2017, a journalist-friend with one of our national dailies drew my attention to the write-up by Chief Joe Igbokwe [of APC, Lagos] on his facebook wall which drew a lot of diverse response and reactions [mostly rancorous and hostile] from his readers.  The said post erroneously insinuated that the court action seeking to terminate the acting chairmanship of Mr. Ibrahim Magu was/is aimed at truncating the political apple cart by the Igbos in a manner that would end up depriving them the opportunity of having a shot at the presidency. There is no doubt that by the said post, Chief Joe Igbokwe is more interested in the messenger and not the message which the suit challenging the continuous stay of Magu at the Economic and Financial Crimes Commission [henceforth in this piece called EFCC] is meant to deliver. That is not good and fair enough. Concededly, it is entirely correct [as Chief Joe Igbokwe observed] that the Lawyer who instituted the suit at the Federal High Court, Abuja, seeking to end the acting chairmanship tenure of Mr. Ibrahim Magu at EFCC is of Igbo extraction. In fact the said lawyer happens to be the present writer.

The Objective of This Exercise:

There is no doubt that the suit [by way of Originating Summons] commenced against Mr. Ibrahim Mustapha Magu [before the Hon. Justice Quadri of the Federal High Court] by my humble self has understandably drawn all manner of reactions from the Nigerian public especially the political class. A section of the Nigerian public has misconstrued the essence of the suit as being a ballistic missile launched by the “corruption-fighting-back-sponsors” or some other “adverse political interests” as it were to dislodge the purported “fight against corruption” of the present administration. The present article is therefore a veritable tool for winnowing solid truth from windy falsehoods which the likes of Chief Joe Igbokwe are vainly seeking to [mischievously] weave around this very important suit aimed at ending the culture of executive lawlessness and scandalous impunity in the system which have all conspired to hobble the rule of law and exiled constitutionalism. Contrary to the impression being projected by Chief Igbokwe, Mr.Ibrahim Magu is not the only person sued as the Defendant in the suit. The said suit has four defendants and Magu is even the 4^th Defendant. The 1^st, 2^nd and 3^rd Defendants are the Senate of the Federal Republic of Nigeria, the Attorney-General of the Federation and the Economic and Finanial Crimes Commission respectively.

The Essence of The Suit:

A peep into the affidavit evidence deposed to and filed before the Court by this writer would reveal the most noble and reformative drive that impelled the institution of the suit. It reads in part:

13. I know as fact that the 3^rd Defendant was established by a Statute spelling out the modalities of the appointment and tenure of its Chairman.

14. I know as a fact that the decision of the 1^st Defendant rejecting the nomination of the 4^th Defendant as the Chairman of the 3^rd Defendant is binding on all the 2^nd, 3^rd and 4^th Defendants herein.

15. I know as a fact that ever since the 4^th Defendant was rejected by the 1^st Defendant as the Chairman of the 3^rd Defendant on the 15^th December, 2016, the 4^th Defendant has not vacated his position in the office of the 3^rd Defendant despite the bindingness of the 1^st Defendant’s decision on him. The persistent refusal of the 4^th Defendant to bow to the constitutional authority of the Nigerian Senate is scandalously spiteful and scornful of the Nigerian Constitution and capable of weakening the potency of the laws of the land in a manner that will precipitate anarchy and crash our democratic system.

16. I know as a fact that despite the rejection by the 1^st Defendant of the nomination of the 4^th Defendant as the Chairman of the 3^rd Defendant, the 4^th Defendant has continued to exercise the powers and functions of an Acting Chairman of the 3^rd Defendant in defiance of the decision of the Nigerian Senate rejecting him which constitutes a grave affront to the Constitutional authority of the Nigerian Senate and gravely threatens the established Constitutional Order of Nigeria.

17. I know as a fact that on the 17^th January, 2017, the President of the Federal Republic of Nigerian wrote a letter addressed to the President of the 1^st Defendant re-nominating the 4^th Defendant herein as the Chairman of the 3^rd Defendant.

18. I know as a fact that ever since the re-nomination of the 4^th Defendant as the Chairman of the 3^rd Defendant, the 1st Defendant has never considered and ratified the 4^th Defendant as the Chairman of the 3^rd Defendant.

20. I know as a fact that in considering the nomination of the 4^th Defendant and rejecting him on the 15^th December, 2016, the 1^st Defendant has found the 4^th Defendant wanting and grossly unfit to be appointed to the Office of the Chairman of the 3^rd Defendant.

21. I know as a fact that despite the grave allegations leveled against the 4^th Defendant by the State Security Service (otherwise called the DSS) in its letter to the 1^st Defendant, the basis upon which the 4^th Defendant’s nomination was rejected by the 1^st Defendant, the 4^th Defendant has not been arraigned before any court of competent jurisdiction for the purposes of the determination of his guilt or otherwise of the grave allegations dangling over his head like the sword of Damocles.

A dispassionate and intimate reading of the excerpts of the depositions of the Plaintiff in his affidavit evidence above [especially paragraph 15] would amply reveal the greatest inspiration of the plaintiff [in presenting the matter] as nothing but the protection of our democracy and constitutional order. These salient facts verging on the unfortunate abuse of our constitution reveals how much the rule of law has suffered in the hands of our political elites. Indeed, it has been said of old that a patriot should always stand ready to defend his country against his government. If there are still vestiges of doubt regarding the intention of this writer in challenging the impunity of Mr. Ibrahim Mustapha Magu, they would quickly give way to these unanswerable submissions found in the plaintiff’s written address now before the Court which are hereby reproduced;

“2.05: The Plaintiff being of the considered view that the persistent refusal of the 4^th Defendant to bow to the constitutional authority of the Nigerian Senate is scandalously spiteful and scornful of the Nigerian Constitution and capable of weakening the potency of the laws of the land in a manner that will precipitate anarchy and crash our democratic system, he has approached this Honourable Court with a view to vindicating the sanctity and strength of the law.

2.06: The Plaintiff is of the further considered view that, like the Ceasar’s wife, those who seek to preside over the institutions of the State charged with the sacred duties of cleaning the Augean stable of corruption (in the mode of the 3^rd Defendant), ought to live above board and should be seen as such. The Plaintiff is deeply worried that ever since the damning security report of the DSS on the 4^th Defendant was acted upon by the Nigerian Senate, the 4^th Defendant has never deemed it fit to submit himself for proper trial by a court of competent jurisdiction with a view to ascertaining his innocence or guilt. This is particularly compelling given the scandalous nature of the said allegations and the image burden they have foisted on the 4^th Defendant. These background facts in their aggregate propelled the institution of the present suit so that large-scale impunity would not be consecrated and accepted in our 21^st century Nigeria as a new normal.”

Paramountcy of Rule of Law:

There is no argument that our country operates a constitutional democracy. There is equally no argument as to the supremacy of our constitution and its pervading bindingness on all authorities and persons throughout the Federal Republic of Nigeria. It is extremely difficult to reject the argument that the future of every country’s democracy rests on the shoulders of lawyers. A lawyer lives to enlighten his society. Talking about the rule of law, I start by reminding Chief Joe Igbokwe that as a Nigerian Legal Practitioner, I am held bound and glued to the provisions of the Rules of Professional Conduct for Legal Practitioners, 2007 [henceforth herein called RPC]. Under the Rules, Rule one (1) imposes general responsibility on all legal practitioners in these lucid words;

1.     A lawyer shall uphold and observe the rule of law, promote and foster the course of justice, maintain a high standard of professional conduct, and shall not engage in any conduct which is unbecoming of a legal practitioner.

It follows from the foregoing therefore that it is a duty imposed on every Nigerian admitted to the Nigerian Bar to “uphold the rule of law.” The enactment fully evinces its undoubted intention of making this duty obligatory by deploying the compulsive word “shall”. There is equally a pre-supposition that all incidental power necessary to discharge the duty is amply donated. This position is re-enforced by Section 10 (1) and (2) of the Interpretation Act which expressly provide as follows;

(1)Where an enactment confers a power or imposes a duty, the power may be exercised and the duty shall be performed from time to time as occasion requires.

(2)     An enactment which confers power to do any act shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it.

Upholding the rule of law requires first the knowledge of the concept of rule of law. We need not wander far afield in search of the meaning of Rule of Law. The doctrine of Rule of Law engaged the wisdom of the Nigerian Supreme Court in the highly celebrated case of The Military Governor OF Lagos State & Ors. v. Chief Emeka Odumegwu Ojukwu & Anor. (1986) LPELR-3186(SC). In that often cited case, the ever-indomitable and renowned jurist, Eso, J.S.C [of blessed memory] taught us this;

“The Nigerian Constitution is founded on the rule of law the primary meaning of which is that everything must be done according to law. It means also that government should be conducted within the frame-work of recognized rules and principles which restrict discretionary power which Coke colourfully spoke of as 'golden and straight met wand of law as opposed to the uncertain and crooked cord of discretion' (see 4 Inst. 41).”. (emphasis supplied by us)

Since the primary meaning of rule of law [according to the Supreme Court] is that everything must be done according to law, then, plainly, a Nigerian legal practitioner charged with the duty of upholding the rule of law already has his work clearly cut out for him. Certainly, this end cannot meaningfully be achieved if the same lawyer cannot approach the Courts of the land with a request to upturn an unlawful act of a government or any of its servants with a view to ensuring that everything is “conducted within the frame-work of recognized rules and principles”. Since the Rules of Professional Conduct, 2007 empowers the Plaintiff to “uphold the rule of law”, then, it equally connotes and “shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it.” in the words of Section 10 (2) of the Interpretation Act. The capacity to institute an action in court to challenge illegal/unconstitutional acts of impunity threatening the nation’s constitutional order cannot be excluded from the powers as reasonably necessary to enable the duty of upholding the rule of law discharged as the present occasion has warranted.

Promoting Good Governance:

Beyond being a Lawyer charged with the duty of promoting the rule of law, I here remind Chief Joe Igbokwe that under Article 13 of the African Charter on Human and Peoples Rights, I have the right [just like every other Nigerian] to participate directly in the governance of my country. Now, here this:

“Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.”

I have chosen to exercise my unquestionable statutory right as a citizen of this country to “participate in the government of my country directly.” To directly participate in the government of one’s country could take different shapes and forms. It could be in form of advocacy of different shades, and by no stretch of imagination can it be said that bringing an action to challenge impunity by the government or any of its officials is outside the scope or contemplation of participating in the governance of the country. What is more, our Supreme Court has affirmed that “The Charter gives to citizens of member states...rights and obligations, which rights and obligations are to be enforced by our Courts, if they must have any meaning”[see Abacha vs. Fawehinmi (2000) 6 NWLR 228, at 289, paras. B-E.]

Summation:

In all of this, Chief Joe Igbokwe must begin to accept the democratic truth that every Nigerian is an equal stakeholder in this all-important Nigerian project. It is never the exclusive preserve of the privileged few. To the extent that this is correct, it should, in consequence, be accepted that my views and actions should carry as much weight as that of every other Nigerian [including Chief Joe Igbokwe and his paymasters]. Let me make it unequivocally clear that no one man [from any quarters] has ever approached me or made any donation in sponsorship of the present suit seeking to end the acting chairmanship of Mr. Ibrahim Magu at the EFCC. I note in passing that for daring to institute this very suit, my own life has constantly been under threat by daredevil agents of dark forces in high places who run this country with dark conscience. I laid this very complaint before the court hearing the matter on the last adjourned date. True indeed, I have received calls warning me that if I fail to withdraw this very suit, I would not live to hear the judgment of the court in the matter. I am not shaken because it is Our God Almighty that has the final say over my life. The catalogue of tribulations is indeed endless all in a bid to run me out of steam and out of town and possibly take the wind off my sail. My God will overcome them all. Our laws can keep us if only we keep our laws. Our democracy can keep us if only we keep our democracy. By continuing to remain and act as the Acting Chairman of the EFCC despite his resounding rejection by the Senate, Mr. Ibrahim Mustapha Magu is rumpling the Nigerian Constitution. Has he got the powers to do that? The answer is a loud no.  Persons who are desirous of presiding over the agencies of government established by law cannot afford to be spiteful of the law and where they are found to be riding roughshod on the Rule of Law, a civilized society ought not to entrust them with a position of responsibility otherwise by their gargantuan impunity and abuse of democratic ethos, an organized society may come to a sad end. Mr. Ibrahim Magu should get this message in the clearest of language. Let me use the rare altitude of this publication to say it loudly that I owe Chief Igbokwe no loyalty neither do I owe same to his paymaster or his cause. My loyalty is to the law and the law alone. This is because the law is my only constituency. In the end, the live issue before the court still remains:

Whether the conduct of the President by sending the name of Mr. Ibrahim Magu to the Senate for confirmation as the substantive Chairman of the EFCC has not ended the expediency of the EFCC being headed by an Acting Chairman thereby ending the stay of Mr. Ibrahim Magu as the Acting Chairman of the Commission?

The above question posed for the determination of the court most aptly captures the public interest nature of the suit. Public interest litigation [PIL] is defined as the use of litigation, or legal action, which seeks to advance the cause of minority or disadvantaged groups or individuals, or which raises issues of broad public concern. It is a way of using the law strategically to effect social change [https://www.pilsni.org/about-public-interest-litigation]. Public interest litigation has been defined a legal action initiated in a court of law for the enforcement of public interest in which the public or class of community have pecuniary interest or some interest by which their legal rights or liabilities are affected. This class of litigation is mainly aimed at wiping out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or political motive or any recondite or oblique consideration. It is in the light of this lucid definition that the suit challenging the continuous stay of Mr. Ibrahim Mustapha Magu as the Acting Chairman of the EFCC must be seen and understood. I am always at one with the great Apostle of the pen, Thomas Pain, in asserting that “if there must be trouble, let it be in my own day so that my child may have peace”. I choose to stop here.

Johnmary Chukwukasi Jideobi, Esq. is a criminal defence attorney and a human rights activist based in Abuja, Nigeria and could be reached through: [email protected]