The Executive Director, Civil Society Legislative Advocacy Centre, Auwal Ibrahim Musa Rafsanjani, and Director, Centre for Social Justice, Eze Onyekpere, Tuesday, backed the court nullification of all sales and disposals of assets made by the Attorney-General of the Federation, Abubakar Malami.
The Federal High Court sitting in Lagos State had nullified the Asset Tracing Recovery, and Management Regulations, 2019 for being “an invalid statutory instrument”. The court nullified all sales and disposals of assets by Malami and held that the 2019 regulations were “ultra vires the office and powers” of the AGF.
Reacting to the ruling in separate telephone interviews with our correspondent, Rafsanjani and Onyekpere described the judgment as a “welcome development”.
Onyekpere said, “It is a welcome development because I don’t even find any legal authority to what they are doing in the first place. There was supposed to be an asset recovery agency like the Economic and Financial Crimes Commission and an asset management agency that will handle the proceeds of crime, account for them in a way and manner that follows due process, and hand over the proceeds back to the nation’s treasury for onward sharing among the three tiers of governments.
“So, as I said earlier, it is a welcome development to the extent that it allows a due process to be introduced and followed.”
Also speaking, Rafsanjani said, “First and foremost, we are worried and concerned that the issues of asset recovery both domestic and international recoveries have no legal framework on how to manage the recovered assets. And you know the inability to coordinate the confiscation of the assets, return of the assets by the various government agencies from police to the EFCC, ICPC, and others that are involved in asset recovery is a serious concern to us.
“The development has created a lacuna for the possibility for those involved do wrong in the process of dispatching the assets particularly when there is no portal to give an account or adequate records of all assets confiscated by the agencies of the Federal Government to ensure Nigerians can see and monitor how transparent the process is.
“So, what the Minister of Justice has done is not efficient and has no public involvement in what he had done. That is why many Nigerians are worried and concerned about the AGF’s style and approach. You will recall that the former EFCC chairman was accused of wrongful disposal of assets and it is also now on public records that the situation has not changed with what the minister of justice is doing.
“So, I think we need to have a better legal framework that will clearly define the roles and responsibilities of all agencies and ministries involved in the disposal of recovered assets. Otherwise, the possibility for the process to be abused is very much in place.”
The AGF had on November 9, 2020, inaugurated the Inter-Ministerial Committee on the disposal of assets forfeited to the Federal Government.
This, according to the minister, was in accordance with the President’s directive in October 2018 following recommendations of the Presidential Audit Committee on Recovery and Management of Stolen Assets and a need for efficient management of the assets.
But HEDA, through its counsel, Omotayo Olatubosun, challenged the AGF’s power to set up the committee.
It argued that the Regulations conflicted with the Economic and Financial Crimes Commission Act, Trafficking in Persons (Prohibition) Enforcement and Administrative Act, 2015, National Drug Law Enforcement Agency Act, 2004 and Independent Corrupt Practices Commission Act, 2000, among others, on the matter of disposal of final forfeited assets.
The plaintiff sought nine reliefs, including the nullification of all disposals of assets by the AGF’s Committee. The prayers were contained in suit FHC/L/CS/40/2021 filed by the plaintiff – Incorporated Trustees of HEDA Resource Centre – against the AGF as the sole defendant.
In its judgment on Monday, the presiding judge, Justice Ambrose Lewis-Allagoa, dismissed the AGF’s preliminary objection argued by its counsel, Tolu Mokunolu, and granted all of HEDA’s reliefs as prayed on the motion paper.
Justice Lewis-Allagoa held: “It is pertinent to state that the powers of the Attorney-General of the Federation do not override the provisions of the enabling statutes stabilising the powers of the law enforcement agencies and anti-corruption agencies and consequently the powers referred to in the commencement clause of the regulations merely are to be exercised in accordance with the Acts not to usurp the mandatory powers vested in the law enforcement agencies and the anti-corruption agencies.
“I am therefore in agreement with counsel for the plaintiff that the executive orders or any other forms of definition can be issued pursuant to Section 315 of the Constitution. However, they are limited to enactments predating the 1999 Constitution.
“The Acts under consideration in this instant suit were enacted after the 1999 Constitution and do not fall within the ambit of Section 315 of the 1999 Constitution.
“In all and for the reasons hereinbefore given in this judgment, the questions put for determination in the originating summons are answered in favour of the plaintiff, and all the reliefs sought are granted as prayed. This is the judgment of the court read in the open court”
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