A15 Other findings and recommendations with regards to other public officers mentioned in the two reports are not relevant here because we are dealing with the constitutional implications of the Reports of the Economic and Financial Crimes Commission and the Administrative Panel of inquiry as regard the Vice President only.

CONSTITUTIONAL ISSUE ONE

• Can the Vice President be probed or investigated at all?

  There is no Constitutional provision which grants immunity to either the President or the Vice President from criminal or any investigation.

  Consequently the Vice President is not immuned from any probe or investigation whether such probe or investigation is criminal in nature.

  Therefore Section 308 of the Constitution of the Federal Republic of Nigeria, 1999 under which immunity is provided against prosecution or arrest of the President, Vice President, Governor or Deputy Governor, does not extend to investigation or probe whether such probe or investigation is criminal in nature. The above represent the decision of the highest court of the land, the Supreme Court in the case of Chief Gani Fawehinmi v. Inspector General of Police which was decided by the Full Supreme Court on Friday 10th May, 2002 and reported in (2002) 7 NWLR (Pt. 767) 606.

  In this case, I requested the Inspector-General of Police to investigate criminal offences allegedly committed by the Governor of Lagos State, Bola Ahmed Tinubu. The Inspector-General of Police declined the request on the ground that he had no power to investigate the alleged criminal offences committed by the Governor.

  In this epochal judgment, Hon. Justice Uwaifo at page 682 paras B-H gave three instances to drive home his point that there is no immunity against probe or investigation as follows:

  "That a person protected under section 308 of the 1999 Constitution, going by its provisions, can be investigated by the police for an alleged crime or offence is, in my view, beyond dispute. To hold otherwise is to create a monstrous situation whose manifestation may not be fully appreciated until illustrated. I shall give three possible instances:

• Suppose it is alleged that a Governor, in the course of driving his personal car, recklessly ran over a man, in killing him; he sends the car to a workshop for the repairs of the dented or damaged part or parts.

• Or that he used a pistol to shoot a man dead and threw the gun into a nearby bush.

• Or that he stole public money and kept it in a particular bank or used it to acquire property.

It is therefore wrong for anybody to say that the Vice-President enjoys immunity and should not submit himself to investigation.

He has no immunity against investigation.

CONSTITUTIONAL ISSUE TWO

2. In view of the facts, findings and the conclusions of both the Economic and Financial Crimes Commission and the Administrative Panel of Inquiry Reports, can the Vice President be disqualified from contesting the 2007 General Elections in view of the provisions of the Constitution of the Federal Republic of Nigeria, 1999.

The matter of qualification or disqualification of the Vice President to contest the 2007 General Elections is governed in this respect by Section 137 of the Constitution of the Federal Republic of Nigeria, 1999.

Section 137(1)(i) of the Constitution of the Federal Republic of Nigeria, 1999 provides as follows:-

"137(1) A person shall not be qualified for election of the office of the President if:

(i) he has been indicted for embezzlement or fraud by a Judicial Commission of Inquiry or an Administrative Panel of Inquiry or a Tribunal set up under the Tribunals of Inquiry Act, a Tribunal of Inquiry Law or any other law by the Federal or State Government which indictment has been accepted by the Federal or State government respectively."

The Administrative Panel of Inquiry comprising of Mr. Bayo Ojo, Attorney-General of the Federation and Minister of Justice as Chairman; Otunba Bamidele Dada, Minister of State, Agriculture as member; Major-General Abdullahi Sarki Mukhtar (Rtd), National Security Adviser as member; Mallam Nasir El-Rufai, Minister of the Federal Capital Territory as member and Mrs. Obiageli Ezekwesili, Minister of Education as member qualifies as the Administrative Panel of Inquiry within Section 137(1)(i) of the Constitution of the Federal Republic of Nigeria, 1999 quoted above.

The Administrative Panel of Inquiry indicted the Vice President in the following words:

• We are of the view that His Excellency, Vice President Atiku Abubakar (hereinafter referred to as the VP) abused his office and position by diverting funds approved for the PTDF operations to placements in ETB and TIB Plc instead of implementing the projects budgeted for. The funds were deposited in the two banks at below-market rates over a period of time

• Indeed, the projects are only being approved for implementation in 2006 which raises the question why the funds were withdrawn from the Treasury in the first place, so many years ago. It is the view of the Panel that these actions benefited private business interests and those of the VP's friends and associates like Otunba Fasawe and Chief Mike Adenuga rather than the public interest of accelerated implementation of the projects.

• We also find that the VP's action in unilaterally approving the disbursement of the sum of US$20m (without the approval of the President and the Federal Executive Council as was done for the initial US$125m), violated the Constitution and amounted to a conduct unbecoming of the VP's high office.

• We view the VP's explanation to the Panel that he thought the President and FEC's global approval of the sum of US$125m covered him on this subsequent approval as untenable.

i. On the basis of the findings above, the VP should be indicted and held accountable for the various acts of embezzlement and fraud that took place in PTDF with his approval and under his supervision.

ii. In view of the VP's constitutional immunity, the matter should be referred to the Code of Conduct Bureau for necessary action."

The above indictments have been accepted by the Federal Government. Consequently, when the time comes for the screening of candidates for the election to the Office of the President of Nigeria for the 2007 General Elections, the Vice President, Atiku Abubakar, stands disqualified.

It must be appreciated that the acceptance of the Reports of both the Economic and Financial Crimes Commission and the Administrative Panel of Inquiry by the Federal Executive Council is the acceptance by the Federal Government of Nigeria in view of the meaning of government in Section 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 which provides as follows:-

"Government includes the government of the Federation or of any state or of a local government council or any person who exercises power or authority on its behalf."

Consequently, there is no need for any white paper, red paper, green paper or blue paper as such is not contained in the provision of Section 137(1)(i) of the Constitution of the Federal Republic of Nigeria, 1999.

Let the public be aware that this is the first time in the constitutional history of Nigeria that we are having Section 137(1)(i) in the 1999 Constitution. It was not in the 1960 Independence Constitution. We did not have it in the 1963 Republican Constitution. Ironically, it was not in the 1979 Presidential Constitution.

It must also be noted that what is required is not conviction of the person accused because there is a separate provision for that in Section 137(1)(e) of the Constitution of the Federal Republic of Nigeria, 1999 which provides as follows:-

"137(1) A person shall not be qualified for election to the office of President if - (e) Within a period of less than ten years before the date of the election to the office of President he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of the contravention of the Code of Conduct."

The disqualification of Atiku Abubakar to contest the 2007 presidential election can be based on Section 137(1)(i) of the Constitution of the Federal Republic of Nigeria, 1999 with regards to the findings and recommendations of the Administrative Panel of Inquiry. This is an innovation which can only be found in the 1999 Constitution.

Under Section 137(1)(i), there is no need for trial in any court of law unlike under Section 137(1)(e) as stated above.

CONSTITUTIONAL ISSUE THREE

3. Do the facts, findings and the conclusions of both the Economic and Financial Crimes Commission and the Administrative Panel of Inquiry Reports amount to gross misconduct for which the Vice President can be impeached under the 1999 Constitution?

The Vice President can be impeached for gross misconduct under Section 143 of the Constitution of the Federal Republic of Nigeria, 1999. That section deals with the process of the machinery for indicting the President or the Vice President as the case may be if there are acts of gross misconduct.

The phrase "gross misconduct" has been defined in Section 143(11) as follows:-

(11) In this Section-

"Gross misconduct" means a grave violation or breach of the provisions of this Constitution or a misconduct of such nature as amounts in the opinion of the National Assembly to gross misconduct."

The question is: Do the facts disclosed by the Economic and Financial Crimes Commission probe and the Administrative Panel of Inquiry set up by the Federal Government amount to gross misconduct?

If the Economic and Financial Crimes Commission and the Administrative Panel of Inquiry could come to the conclusion that the Vice President has not only abused his power but has corrupted his office, nothing more can amount to gross misconduct.

The facts, findings and conclusions against the Vice President showed that the Vice President not only violated Section 15(5) of the Constitution of the Federal Republic of Nigeria, 1999 which provides that the "State shall abolish all corrupt practices and abuse of power" but also violated the Code of Conduct as well as his oath of office in the Constitution.

The facts of corruption against Atiku Abubakar are so serious that no sane Nigerian can say that these facts cannot amount to gross misconduct deserving of impeachment under Section 143 of the Constitution of the Federal Republic of Nigeria, 1999.

CONSTITUTIONAL ISSUE FOUR

4. If the Vice President is impeached, can he be thereafter tried in the appropriate court of law for criminal offences flowing from the facts, findings and conclusions of both Economic and Financial Crimes Commission and the Administrative Panel of Inquiry Reports?

Once the Vice-President is out of office, he can be arraigned before the Court for corruption, embezzlement and fraud related offences under the Economic and Financial Crimes Commission Act, 2004.

The case of Spiro Theodore Agnew, a one time powerful Vice-President in the United States of America is very instructive here.

Agnew, a Greek-American won election as Vice President under President Richard Milhous Nixon in 1972 on the Platform of the Republican Party.

In 1973, Federal Officials began to investigate charges that Agnew had accepted bribes from contractors in return for helping them get state government work in Maryland. The investigation covered the period Agnew had served as Baltimore Country Executive (1962), Governor of Maryland (1967) and Vice President of the USA (1972), that is, 1962-1972.

Agnew was also accused of tax invasion during the period under investigation.

Agnew repeatedly denied any wrongdoing. But on October 10, 1973, he resigned as vice president under an agreement with the Department of Justice.

He was subsequently charged for cheating the Government of $13,551 (Thirteen Thousand Five Hundred and fifty-one Dollars) on his Federal Income Tax payment for 1967. He pleaded "no contest" (nolo contendere) which the judge declared was "the full equivalent of plea of guilty". He was fined $10,000 (Ten Thousand Dollars) and sentenced to three years of unsupervised probation. He served the imprisonment term.

In 1974, the Maryland Court of Appeal disbarred him from practicing law since he was a lawyer because of his "no contest plea". In 1981, another Maryland Court ordered him pay the state the amount of the bribes it declared he had accepted, plus interest. In 1983, Agnew paid $268,482 (Two Hundred and Sixty-eight Thousand and Four Hundred and Eighty-two Dollars) to Maryland.

The case of Mr. Jacob Zuma, a Zulu the former South African Vice-President is the most recent. He was sacked last year (2005) as Vice President to Thabo Mbeki. Mr. Zuma's trial started on Tuesday 5th September, 2006. He is accused of soliciting and receiving bribe from the local subsidiary of the French Defence Company, Thales in return for shielding it from an official investigation into ?4.4 billion arms deal and accepting payments and loans totaling ?280,000 from Schabir Shark, a businessman who acted as his financial adviser and whom he used his influence to give contracts as favours.

The trial is still ongoing.

CONCLUSION

Impeached or not the Vice President cannot contest the 2007 Presidential Election. Therefore, he will be out of office if not impeached on 29th May, 2007. Thereafter, he can be tried accordingly in a court of law for offences committed whilst in office and/or before he came into office as Vice President.

It does not lie in the mouth of Atiku or any other person accused of corruption, fraud, embezzlement or any other criminal offence to say that there are other corrupt persons. You do not justify your crime by a defence that there are other criminals. So if you catch a robber, do you leave him to go scot-free simply because he says there are other robbers? That will amount to the grossest and most perverted illogicality and primitive lawlessness.

CHIEF GANI FAWEHINMI LL.D, SAN