By Dr. Alex Ter Adum
Hon. Ehiozuwa Agbonayinma is entitled to petition the Economic and Financial Crimes Commission (EFCC). What he cannot do is turn a political petition into a prosecutorial command, or transform historical allegations into present criminal liability merely by repeating them.
His reported demand that the EFCC should, within fourteen days, reopen and prosecute former Vice-President Atiku Abubakar over allegations dating back almost two decades raises a basic legal question:
What presently prosecutable Nigerian offence has been established, on what admissible evidence, and what law requires the EFCC to prosecute it within fourteen days?
That question has not been answered.
An investigation is not a conviction
The historical record establishes that Atiku was investigated by the EFCC while he was Vice-President and that the allegations subsequently became the subject of an administrative investigative process.
But an investigation is not a criminal conviction.
That distinction was central to Action Congress (AC) & Anor v Independent National Electoral Commission (INEC), SC 69/2007 . The Supreme Court rejected the attempt to use an administrative indictment against Atiku as the basis for preventing him from contesting the 2007 presidential election.
The judgment should be stated accurately. The Supreme Court rejected the attempt to treat an administrative indictment as sufficient legal basis for imposing the constitutional consequence of electoral disqualification.
The decision is decisive:
An investigative report is not a judgment. An administrative indictment is not a criminal conviction. An allegation is not proof beyond reasonable doubt.
Immunity did not prevent investigation
The treatment of Atiku’s constitutional immunity is similarly important.
Section 308 of the Constitution protected the Vice-President against the institution or continuation of civil or criminal proceedings during his tenure. In Atiku Abubakar v Attorney-General of the Federation (2007) 3 NWLR (Pt. 1022) 601, the Court of Appeal held that this constitutional protection could not simply be circumvented through the Code of Conduct Tribunal.
But immunity did not prevent investigation.
Atiku was investigated while he was Vice-President, because he personally waived that immunity and submitted himself to investigation willingly.
The Supreme Court’s own record confirms that investigative history.
Thus, the accurate proposition is that immunity protected against the institution of proceedings during tenure; it did not prevent scrutiny. The allegations were investigated. The expiration of immunity did not, by itself, transform the historical investigation into an automatic obligation to prosecute when it produced no prima facie evidence of wrong doing.
The Obasanjo-era litigation matters
The allegations must also be understood against the extraordinary constitutional conflict between President Olusegun Obasanjo and his Vice-President regarding the latter’s opposition to the former’s Third Term Agenda.
In Attorney-General of the Federation & Ors v Alhaji Atiku Abubakar & Ors, SC 31/2007, the Supreme Court dealt with the attempt to declare Atiku’s office vacant.
That case was not an acquittal on corruption allegations. But Its significance is that the courts enforced constitutional limits during an intense political confrontation between the President and the Vice President.
Similarly, Action Congress v INEC (supra) prevented an administrative indictment from becoming a substitute for the judicial determination required before electoral disqualification.
Those judgments do not place Atiku beyond investigation today. They do, however, demonstrate why historical allegations cannot simply be converted into predetermined criminal liability.
A purported US Senate Report that did not indict Atiku is also not a Nigerian conviction.
The reliance on the 2010 United States Senate Report, granted but not conceding that it indicted Atiku does not cure the problem.
The EFCC may examine foreign investigative material if it considers it relevant. But a legislative report is not a Nigerian criminal judgment and does not, by itself, establish the ingredients of any offence. Moreover, the said report did not specifically indict Atiku of any wrong doing even if his name appears on the record. If the mere appearance of his name in the report contained any allegations of wrong doing, the US Senate would have invited him to appear and defend himself before reaching such a conclusions. The principle is called Audi alteram partem hear the other side. Justice does not permit a man to be condemned, judged or punished in his absence. You cannot shave a man’s head behind his back and then call the baldness evidence of his guilt. Before the razor falls, the accused must be heard. Nothing on the record, however, indicates that Atiku was ever invited nor appeared before the US Senate with respect to the report.
The questions remain:
What then is the offence? What transaction? What evidence? What nexus to Atiku? What is genuinely new?
Those are evidential questions, not political ones.
The 2023 Keyamo case.
In 2023, Festus Keyamo brought proceedings seeking to compel the relevant anti-corruption agencies to investigate and prosecute Atiku over allegations concerning his tenure as Vice-President.
The Federal High Court dismissed the suit in FHC/ABJ/CS/84/2023 , including on the basis that the relevant agencies had not first been afforded the opportunity to investigate the allegations.
That judgment was not an acquittal and did not grant Atiku perpetual immunity from investigation.
Its relevance is narrower but important: prosecution cannot be dictated by private litigants; the competent agencies must independently assess the allegations and evidence.
The 14-day deadline has no demonstrated legal force
Agbonayinma may petition the EFCC. He may challenge unlawful conduct by the agency where the law permits.
But a privately imposed fourteen-day deadline does not create a statutory obligation upon the EFCC to prosecute a particular person.
The EFCC’s duty is to the law and the evidence, not to a petitioner’s political timetable.
The question is therefore not:
“Why has the EFCC failed to obey Agbonayinma?”
It is:
“What provision of Nigerian law requires the EFCC to prosecute Atiku within fourteen days?”
No such provision has been identified.
Put the evidence on trial before putting Atiku on trial
The most important issue is evidence.
Before prosecution can properly be contemplated, there must be a specific offence, a specific transaction or act, evidence connecting Atiku personally to it, and admissible documentary, financial, electronic or testimonial evidence capable of proving its essential ingredients.
After almost twenty years, one further question becomes unavoidable:
What is genuinely new?
An old report can point investigators towards evidence. It cannot substitute for the evidence itself.
A foreign legislative finding can justify inquiry. It cannot substitute for proof before a Nigerian court.
A political assertion can trigger a petition.
It cannot constitute proof.
Ultimately, the prosecution must establish guilt beyond reasonable doubt.
Where is the unlawful transaction?
Where is the money trail?
Where is the evidence of the specific criminal act?
Where is the nexus to Atiku?
Where are the admissible documents and witnesses?
What evidence survives the passage of nearly two decades?
Those are the questions a serious prosecution must answer.
Conclusion
This is not an argument that Atiku is above the law. He is not.
It is an argument that he is entitled to the same law that protects every Nigerian citizen.
If fresh, credible and admissible evidence establishes a Nigerian criminal offence, the EFCC should investigate and prosecute without fear or favour.
But if what is being demanded is simply the resurrection of historical allegations, accompanied by a fourteen-day political ultimatum, then the demand confuses advocacy with criminal process.
Agbonayinma can demand investigation.
He cannot dictate prosecution.
He can produce allegations.
He cannot manufacture proof.
He can cite reports.
He cannot turn them into convictions.
The law requires the evidence to come first.
Identify the offence. Produce the evidence. Establish the nexus. Prove the ingredients. Meet the criminal standard. Then prosecute.
Anything else reverses the logic of criminal justice by demanding prosecution first and leaving the evidence to catch up afterwards.
A fourteen-day ultimatum may create headlines.
It cannot create evidence.
And without evidence capable of proving a specific criminal offence beyond reasonable doubt, there is no legal basis for turning an old political controversy into a predetermined prosecution.
AA MOVEMENT FOR NIGERIA
