Maina: Malami did not act in public interest, By Jiti Ogunye

Following the public outcry and condemnation that have trailed the revelation that the attorney general of the federation, Abubakar Malami, SAN (AGF) was the authority in the Federal Government of Nigeria who initiated and instigated the administrative processes that led to the reinstatement and promotion of Mr. Abdulrasheed Abdullahi Maina, the pension scam fugitive, the AGF, in breaking his deafening silence, was reported to have said in his own defence, that he acted in the public interest. Since then a number of Nigerians have come to the defence of the AGF. In doing so, they relied on the reports that there were two subsisting, valid and yet to be appealed “judgments of the courts”, in favour of Maina, which the AGF was merely rendering legal advice on. According to the AGF’s sympathisers now dotting the social media and cyber space, if Maina had obtained court orders which the EFCC did not appeal against, what could have been the good reason for the federal government to flout the orders, and why should the AGF be crucified for advising the government to obey the orders, being the chief law officer of the federation?
In this intervention, we wish to provide clarifications on the “court judgments” that were won by Maina, and argue that the imports of the “judgments” do not support the legal advice and directive issued to the Federal Civil Service Commission (FCSC), Office of the Head of Civil Service of the Federation (OHCSF), and Ministry of Interior to make them recall Maina and reinstate him into the Civil Service of the Federation. The AGF, in our humble view, acted illegally, immorally, and improperly. He misled the above mentioned institutions and the Federal Government of Nigeria. Whether he did so, conspiratorially and deliberately, in concert with these institutions, in order to pervert the cause of justice, as a result of corrupt practices, or whether he did so inadvertently (or capriciously), owing to a lack of sound legal knowledge from his team of lawyers, may not be known at this point. But there can be no doubt that the AGF acted without legal justification. Having so acted, the least he can do is to accept responsibility instead of trying, through proxies, to wriggle out of the Maina mess by engaging in sophistry and spin. The AGF did not act in the public interest.
The truth is that there were no two judgments that were secured by Maina.. He only secured a judgment of a high court and a ruling of a magistrate court in Abuja. When the Seventh Senate directed in 2013 that a warrant of arrest be issued against Maina upon his refusal to heed the summons of Senate Committees to appear for a hearing, Maina filed an action for the enforcement of his fundamental rights (to liberty and fair hearing) before a Federal High Court, Abuja, presided over by Hon. Justice Adamu Bello of the Abuja Division of the Federal High Court.
In its judgment on March 27, 2013, the court quashed the warrant of arrest that was issued against Maina. Justice Adamu Bello did not absolve Maina of any criminal allegations that were pending against him, and from being investigated by the Economic and Financial Crimes Commission (EFCC). The judgment, which was delivered on March 27, 2013, did not determine, and could not have decided the charges that were later filed in 2015 against Maina by the EFCC, before Hon. Justice Kolawole of the Federal High Court. It should be noted also that the warrant of arrest issued and procured by the Police, which was nullified by Hon. Justice Adamu Bello was different and separate from the warrant for the arrest of Maina, which was later procured by the EFCC from a magistrate court in 2015.
In a separate criminal action, Maina was on July 21, 2015 charged by the EFCC, alongside Stephen Oronsaye, Osarenkhoe Afe and Fredrick Hamilton Global Services Limited, before Hon. Justice Gabriel Kolowole of the Federal High Court, Abuja in a 24-count charge bordering on procurement fraud and obtaining property by false pretences. While Stephen Oronsaye and the two others were in Court, Maina was not, for he was at large, although he was represented by counsel, Esther Uzoma. Since he was not produced in Court, the charge could not be prosecuted against him. Since the law does not permit that he be tried in absentia, he was not prosecuted and was neither discharged nor found guilty.. It is, therefore, erroneous for anyone to argue that since Maina still enjoys the presumption of innocence until he is found guilty, he is entitled to be reinstated as a public servant.
It should be noted that all charges instituted by the EFCC are initiated and commenced in the name of the Federal Republic of Nigeria – FRN – and are deemed to be so instituted under the power of public prosecution donated to the AGF by Section 174 of the Constitution, meaning that the AGF is deemed, in a sense, to have initiated such charges and he is presumed to know that such charges are brought. Thus, the AGF ought to have ensured, upon Maina’s re-emergence and appearance, that he was made to face his prosecution, instead of assuming the role of his advocate and solicitor, insistently demanding for his reinstatement in the public service.
When he was dismissed from service, Maina did not challenge his dismissal by filing a court action in the Federal High Court or in the National Industrial Court, following the Third Alteration of the Constitution, which by Section 254C now vests exclusive jurisdiction in all labour and employment matters in the National Industrial Court. If there had been any such action leading to a judgment favourable to Maina, certainly that judgment nullifying the dismissal of Maina from the civil service would have been the fulcrum of the AGF’s recommendation of Maina for reinstatement. If such a judgment quashing Maina’s dismissal exists, let the AGF produce it to the Nigerian public.
The judgment that the Hon. AGF relied upon to direct the reinstatement of Maina did not determine the issue of Maina’s employment. It was, therefore wrong for the Hon. AGF to twist the effect of that judgment to secure Maina’s reinstatement.

Ogunye, lawyer, writes from Abuja

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