By Alex Ter Adum, PhD
There is a persistent attempt recently to present the 2006 Petroleum Technology Development Fund (PTDF) affair as though the Economic and Financial Crimes Commission (EFCC), under Nuhu Ribadu, established the criminal guilt of then Vice-President Atiku Abubakar, GCON and that the subsequent administrative panel merely confirmed that guilt.
That is not an accurate description of the legal history.
The documentary record establishes something more nuanced, and, in some respects, more damaging to the allegation that Atiku was ever criminally convicted or established to have committed a prosecutable offence.
- EFCC investigated the allegations.
The EFCC did conduct an investigation following a request connected with the United States investigation into the activities of Congressman William Jefferson, iGate and Nigerian entities and individuals.
Its report, referenced EFCC/EC/01/104 and dated 24 August 2006, identified suspected violations of Nigerian law and made allegations concerning a number of public officers and private individuals.
The report was submitted to President Olusegun Obasanjo.
But an EFCC investigative report is not a criminal conviction. It is evidence gathered by an investigative agency and recommendations arising from that investigation. Criminal guilt still has to be established through the constitutionally prescribed prosecutorial and judicial process.
That distinction became crucial in the subsequent litigation.
- Obasanjo constituted an administrative panel.
Following the EFCC report, President Olusegun Obasanjo constituted an Administrative Panel of Inquiry headed by the Attorney-General of the Federation and Minister of Justice, Chief Bayo Ojo, SAN.
Its membership included:
- Chief Bayo Ojo, SAN — Chairman;
- Otunba Bamidele Dada;
- Major-General Abdullahi Sarki Mukhtar (Rtd.);
- Nasir el-Rufai; and
- Mrs. Obiageli Ezekwesili.
The panel expressly described its mandate as administrative.
Its methodology was equally clear. It reviewed the EFCC report, examined the funds-flow chart, identified gaps in the investigation, interviewed EFCC officers, requested additional documents and information, and interviewed relevant persons. (Note that the Committee set up by Obasanjo identified glaring gaps in the EFCC Investigation Report.)
Among those it interviewed was Vice-President Atiku Abubakar.
The panel’s own account records that it met him in order to obtain clarification on the allegations contained in the EFCC report. Nasir el-Rufai subsequently described the panel as having visited Atiku in his office and questioned him on matters that could potentially INCRIMINATE OR EXONERATE him and others mentioned in the EFCC report.
- Atiku did not hide behind his position and immunity as Vice-President.
This is an important fact frequently omitted from contemporary retellings.
Atiku was the incumbent Vice-President of Nigeria when these allegations were investigated. Yet he submitted himself to questioning by the panel.
The available record does not establish a formal constitutional instrument by which he “waived” Section 308 immunity. It does, however, establish the practical fact that he appeared before and answered questions from the administrative panel despite holding the office of Vice-President.
That is significant because the central question was no longer whether the government could merely make allegations against him. The relevant authorities had the opportunity to put the allegations to him directly and obtain his explanations.
The panel recorded his answers.
He admitted that, as the official supervising the PTDF, he had authorised certain placements of PTDF funds in banks, explaining that he relied upon reasons supplied by the Executive Secretary of the PTDF.
On the controversial US$50 million transaction, however, the report records that he said he could not remember whether he had been involved in that particular approval or placement.
That statement should not be transformed into an admission that he authorised or converted the US$50 million.
- The panel did make adverse administrative findings.
For accuracy, it is important not to sanitise the report.
The Bayo Ojo Panel concluded that Atiku had abused his office by permitting PTDF funds to be placed in Equatorial Trust Bank and Trans International Bank rather than being immediately applied to projects. Strange though, because nothing in our criminal law books says government agency funds cannot be invested in the money market for additional income and must be spent.🙏
It also criticised his approval of a US$20 million disbursement without what the panel considered the required presidential and Federal Executive Council approval.
Those were serious administrative findings.
But there is a fundamental distinction between saying:
“The panel found that Atiku abused his office in the management of PTDF funds”
and saying:
“The EFCC proved that Atiku committed a criminal offence and stole PTDF funds.”
The first is supported by the panel’s report. But is not supported by the evidence and law.
The second is not established by the report itself. And is also not supported by the evidence.
- Where is the criminal conviction?
This is the question that must be asked whenever the 2006 allegations are presented today as established criminality.
Atiku was not convicted by a Nigerian criminal court for the alleged PTDF offences.
The administrative panel did not itself possess the constitutional jurisdiction of a criminal court.
Nor did its findings constitute a judicial determination of criminal guilt. Because, if it was satisfied that a prima facie case of corrupt enrichment was established against the vice president, two legal options were open to it.
I. Recommended to the President to request the National Assembly to initiate impeachment proceedings against the Vice President pursuant to section 143 CFRN 1999 (As Amended); or
II. Recommended the Vice President for prosecution after the expiration of his tenure of office and effluxion of the immunity he enjoyed under section 308 of the constitution.
Indeed, the subsequent legal history makes this distinction and submission even more important.
- The High Court subsequently set aside the EFCC and Administrative Panel reports.
On 28 November 2006, Justice Inumidun Akande of the Lagos State High Court set aside the EFCC report concerning the PTDF matter and also set aside the report of the Bayo Ojo Administrative Panel and the Federal Government’s Gazette founded upon them.
The judgment was highly significant.
The court held, among other things, that the executive process adopted in dealing with the allegations infringed the proper constitutional separation between executive and judicial functions. Contemporary accounts of the judgment report that the court declared the EFCC report null and void and set aside the Bayo Ojo Panel report. This means the entirety of the report, which some persons today are calling on the government to resurrect and try Atiku Abubarkar, GCON for corruption allegations is illegal, null and void in law. In fact, dead cold and incapable of being resurrected into life in law and in fact. It is completely, extinguished of life and any references to it are purely for academic purposes as it is completely none existent and moot in law.
Whatever one’s political view of Atiku, that judicial development cannot simply be erased from the historical record.
It means that the 2006 EFCC report and the subsequent administrative-panel report cannot honestly be presented today as though they were an unchallenged judicial determination of Atiku’s criminal guilt.
- This does not mean that every allegation against Atiku’s tenure of office was disproved
The High Court decision has not been misrepresented as a judicial declaration that every factual allegation concerning Atiku as Vice President was false. No human being is perfect, but no man can be sentenced to any criminal guilt absent a judicial conviction.
The court’s intervention principally concerned the legality and validity of the investigative/administrative process and the legal status of the reports.
That is different from conducting a criminal trial and returning a verdict on every underlying transaction in the PDTF saga and Atiku Abubarkar’s term as Vice President.
Consequently, it is wrong to say:
“Atiku was proven guilty of stealing PTDF money.”
It is equally wrong to say:
“The PTDF controversy never existed.”
The documentary record establishes that questions were raised concerning the management and placement of PTDF funds, that EFCC investigated them, that an administrative panel examined them, that Atiku was questioned personally, and that the panel made adverse administrative findings.
But it also establishes that those findings did not become a criminal conviction against Atiku and were subsequently set aside by a court. And interred with the report.
- The subsequent Senate inquiry further complicates the political narrative.
The matter did not end with the EFCC report.
The National Assembly subsequently examined the PTDF controversy, including the management and expenditure of PTDF funds.
That inquiry produced criticisms not limited exclusively to Atiku. The broader PTDF controversy involved questions concerning the conduct of both the Vice-President and the Obasanjo administration in totality.
This is important because the political narrative sometimes reduces the entire affair to:
EFCC investigated Atiku → EFCC found him guilty → presidential panel confirmed his guilt.
That is not the complete historical sequence.
The actual sequence was:
EFCC investigation → administrative review → adverse administrative findings → litigation → judicial setting aside of the reports → further legislative investigation and political controversy.
That is a materially different proposition.
- The central legal point.
The strongest defence of Atiku is therefore not that the EFCC report never existed.
It did.
Nor is it that the Bayo Ojo Panel found nothing against him.
It did make adverse findings, even though they were unsupported by law and facts.
The stronger point is this:
No Nigerian criminal court convicted Atiku Abubakar of the alleged PTDF offences.
And the very reports now being presented as definitive proof of criminality were subsequently subjected to judicial scrutiny and set aside.
That distinction is fundamental to the rule of law.
An investigative report is not a conviction.
An administrative finding is not a criminal judgment.
A presidential panel is not a court of law.
And an allegation, however serious, does not become an established criminal fact merely because it appears in an official government report set aside by the court.
CONCLUSION
The PTDF affair therefore cannot fairly be used as proof that Atiku Abubakar was judicially established to have stolen or criminally converted PTDF funds.
What the record establishes is considerably narrower.
The EFCC investigated allegations involving PTDF funds and submitted a report to President Obasanjo. President Obasanjo subsequently constituted an administrative panel chaired by the Attorney-General of the Federation. The panel reviewed the EFCC material, interviewed relevant persons, including the sitting Vice-President, and made adverse administrative findings concerning Atiku’s approval to place certain PTDF funds in interest yielding investments.
But there was no criminal conviction.
More importantly, the legal foundation of the EFCC and administrative-panel reports was subsequently successfully challenged in court, and the reports were set aside.
Atiku’s decision to submit himself to questioning while serving as Vice-President is therefore significant. It demonstrated that he did not simply rely upon the protection ordinarily available to an incumbent Vice-President to avoid engagement with the allegations.
The proper historical conclusion is consequently not that “Ribadu proved Atiku was a criminal.”
Nor is it that “nothing happened.”
It is that Atiku was the subject of a serious EFCC investigation, personally submitted to questioning by a presidential administrative panel, faced adverse administrative findings, but was never criminally convicted on the PTDF allegations, while the reports themselves were subsequently set aside by the High Court.
That is the distinction between an allegation, an administrative finding and a legally established criminal offence; and it is precisely the distinction that must be preserved if the PTDF controversy is to be discussed honestly.
Alex Ter Adum, PhD
-AA MOVEMENT FOR A BETTER NIGERIA-
