By Dr. Alex Adum
There is something profoundly troubling about Hon. Ehiozuwa Agbonayinma’s reported demand that the Economic and Financial Crimes Commission (EFCC) should, within fourteen days, reopen and prosecute former Vice-President Atiku Abubakar over allegations dating back almost two decades.
Not because a citizen has no right to petition an anti-corruption agency. He does.
Not because Atiku should be regarded as beyond investigation. He should not.
The problem is more fundamental: a political petition cannot become a prosecutorial command, and historical allegations cannot become present criminal liability merely because they are repeated with greater political intensity.
Agbonayinma reportedly wants the EFCC to reactivate its 2006 report and rely, among other things, on a 2010 United States Senate report as the basis for prosecution.
That immediately raises the question that matters:
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. The allegations subsequently became the subject of an administrative investigative process.
But an investigation is not a criminal conviction.
That distinction became central in 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, however, be described accurately. The Supreme Court rejected the attempt to treat an administrative indictment as sufficient legal basis for imposing the constitutional consequence of electoral disqualification.
That distinction is critical.
An investigative report is not a judgment. An administrative indictment is not a criminal conviction. An allegation is not proof beyond reasonable doubt.
The fact that an investigative report exists therefore cannot logically produce the conclusion that prosecution must follow almost twenty years later.
The missing step is the most important one:
evidence sufficient to establish a specific criminal offence.
Atiku was investigated despite his constitutional immunity
There is also a need to correct the way Atiku’s constitutional immunity is sometimes presented.
Section 308 of the 1999 Constitution protected the Vice-President from 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 considered that protection and held, in substance, that it 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.
The Supreme Court’s own judgment records that investigative history.
Accordingly, it is inaccurate to suggest that Atiku escaped scrutiny by hiding behind immunity. The allegations were investigated. What Section 308 addressed was the institution or continuation of the relevant proceedings during his tenure.
This distinction matters enormously.
The constitutional immunity did not erase the allegations, but neither did its expiration automatically convert an old investigation into a criminal prosecution absent a prima facie finding of guilt.
If prosecution is now contemplated, the authorities must still establish a lawful and evidential basis for proceeding.
The Obasanjo-era litigation cannot simply be rewritten
The allegations against Atiku also arose within the extraordinary constitutional and political confrontation between President Olusegun Obasanjo and his Vice-President because of 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 the office of Vice-President vacant.
Note that the judgment is not been represented as an acquittal on corruption allegations. It was not.
Its significance lies in the Court’s enforcement of constitutional boundaries during an exceptionally contentious political dispute between the President and his Vice President.
The same constitutional discipline appeared in Action Congress v INEC (supra), where the Supreme Court refused to allow an administrative indictment to become the legal equivalent of criminal guilt for purposes of electoral disqualification.
Those decisions do not place Atiku beyond investigation today.
They do, however, demonstrate why historical allegations must be subjected to the ordinary requirements of constitutional and criminal law rather than converted into predetermined conclusions.
The 2010 US Senate report is not a Nigerian criminal judgment.
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 conclusion. 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.
There is nothing legally objectionable about the EFCC examining material originating from a foreign investigation if it considers that material potentially relevant.
But a report of a foreign legislative body is not itself a conviction by a Nigerian criminal court.
It does not, merely by existing, establish the ingredients of an offence under Nigerian law.
Nor does it relieve a Nigerian prosecution of its obligation to prove its case in accordance with Nigerian law.
If the report contains relevant evidence, let the competent authorities examine it.
But the existence of the report cannot answer the questions that a prosecution must ultimately answer.
What exactly is the offence?
This is where the entire controversy should be brought back to first principles.
If Agbonayinma wants the EFCC to prosecute Atiku, he should identify the specific Nigerian criminal offence allegedly committed in the report.
Then identify the transaction.
Identify the conduct.
Identify the date and circumstances.
Identify the evidence linking Atiku personally to that conduct.
Identify the documents, financial records, electronic evidence or witnesses capable of proving the allegation.
Establish their authenticity and admissibility.
And explain what, if anything, is genuinely new after nearly two decades.
Those are not academic questions.
They are the foundations of a criminal case.
A prosecution cannot properly be constructed backwards:
decide first that somebody must be prosecuted, then search for material capable of supporting the decision.
The lawful sequence is the reverse:
evidence → investigation → assessment → prosecutorial decision → charge, where warranted → trial → judgment.
That sequence exists precisely to prevent political allegations from becoming substitutes for proof.
The 2023 Keyamo proceedings are instructive.
This is not even the first recent attempt to compel anti-corruption agencies to pursue Atiku.
In 2023, Festus Keyamo instituted 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 decision was not an acquittal. Its significance is narrower but important: the court recognised the proper institutional sequence in which investigation precedes any prosecutorial determination.
That principle is directly relevant here.
A private petitioner may complain.
The law-enforcement agency must investigate.
The prosecutor must assess the evidence.
The court ultimately determines criminal guilt.
The petitioner does not occupy the prosecutor’s chair.
The fourteen-day ultimatum has no demonstrated legal force
Agbonayinma’s fourteen-day deadline may have political theatre, but its legal foundation is unclear.
A citizen can petition an agency.
A citizen can challenge unlawful administrative conduct where the law permits.
But a privately imposed deadline does not itself create a statutory obligation upon the EFCC to prosecute a named individual.
The EFCC derives its powers from law.
Its decisions must therefore be based upon its statutory mandate, the available evidence and the requirements of criminal justice, not upon a political petitioner’s timetable.
The relevant question is 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?”
Unless that question can be answered, the ultimatum is simply a demand.
It is not a legal command.
An old investigation does not establish present criminal liability.
If genuinely new evidence exists, the EFCC can examine it.
If it does not, political repetition cannot manufacture it.
Political timing may be questioned, but evidence remains decisive
The intervention comes at a politically consequential moment, with Atiku positioned as the ADC presidential candidate ahead of the 2027 election.
That timing naturally invites political scrutiny.
But it is unnecessary to prove Agbonayinma’s motive in order to dismantle his legal argument.
Even if his motives are assumed to be entirely legitimate, the evidential test remains the same.
That is precisely why the issue should be removed from the realm of political insinuation and placed squarely in the realm of evidence.
If there is a case, show the case.
Put the evidence on trial before putting Atiku on trial
At the end of this controversy, everything turns on one question:
What evidence exists today?
Not merely what was alleged in 2006.
Not merely what an administrative panel reported.
Not merely what appeared in a foreign legislative report in 2010.
The relevant question is whether there is credible, admissible and legally sufficient evidence presently capable of establishing the ingredients of a specific criminal offence under Nigerian law.
That test is concrete.
Before prosecution can responsibly be contemplated, there must be:
the precise offence;
the specific transaction or conduct;
the relevant date and circumstances;
the evidence linking Atiku personally to the alleged offence;
the documentary, financial, electronic or testimonial evidence capable of proving each essential ingredient;
evidence whose provenance and authenticity can be established;
witnesses capable of giving admissible testimony;
and, critically, any genuinely new evidence that was not already available during the earlier investigations.
Ultimately, the prosecution must still satisfy the criminal standard of proof beyond reasonable doubt.
A report can point investigators towards evidence.
It cannot substitute for the evidence.
A 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.
This is the evidential bridge that Agbonayinma’s ultimatum has yet to demonstrate.
Where is the specific unlawful transaction?
Where is the evidence of the alleged criminal act?
Where is the documentary or financial trail?
Where is the evidence connecting Atiku personally to the alleged offence?
What evidence is genuinely new?
And can the totality of that evidence survive the demands of admissibility, credibility and proof beyond reasonable doubt?
Those are the questions that matter.
The danger extends beyond Atiku
This is ultimately larger than Atiku Abubakar.
An anti-corruption agency must investigate credible allegations wherever they lead.
But it must also be protected from becoming an instrument of electoral or political warfare.
If politicians can demand the prosecution of opponents on the basis of historical allegations and impose arbitrary deadlines upon law-enforcement agencies, the danger will not end with Atiku.
Tomorrow the same method can be deployed against an APC candidate, a PDP candidate, a Labour candidate, an ADC candidate or anyone else who becomes politically inconvenient.
Institutional independence means independence from both the accused and the accuser.
That is the principle worth defending.
Conclusion
Agbonayinma has a right to petition.
He has a right to demand investigation.
He has a right, where the law permits, to seek judicial intervention.
But he does not have the power to determine that a person must be prosecuted, much less to create a fourteen-day prosecutorial obligation where none has been established by law.
The historical record shows that Atiku was investigated while Vice-President. It shows that an administrative process subsequently produced an indictment. It shows that the Supreme Court rejected the use of that indictment as the legal basis for disqualifying him from the 2007 presidential election. It also shows that subsequent attempts were made to compel or revive official action concerning the allegations.
None of that places Atiku above Nigerian law.
But neither does it place him below it.
The law does not prosecute people because allegations are old, politically useful or repeatedly publicised. It prosecutes where evidence establishes a legally sustainable case.
So let Agbonayinma produce the evidence.
Identify the offence.
Identify the transaction.
Establish the nexus to Atiku.
Produce the admissible documents and witnesses.
Show what is genuinely new.
Then let the EFCC do its statutory duty.
If the evidence meets the threshold, prosecute.
If it does not, do not.
Because the fundamental principle is both simple and uncompromising:
Evidence must precede prosecution. Prosecution must precede judgment. And judgment—not political accusation—must determine guilt.
A fourteen-day ultimatum can create headlines.
It cannot create evidence.
And without evidence capable of meeting the criminal standard of proof, there is no legal basis for turning an allegation into a prosecution merely because the political season has begun.
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