By Ikechukwu Nnochiri
The difference between ethics and morals can seem somewhat arbitrary to many, but there is a basic, albeit subtle, difference. Whereas morals define personal character, ethics on the other hand, stress a social system in which those morals are applied. One can, therefore, argue that as legality does not imply morality, illegality does not also imply immorality!

Basically, the principle of legality is the legal ideal that requires all laws to be clear, ascertainable and non-retrospective. It mandates trial courts to resolve disputes by applying legal rules that have been declared beforehand, and not to alter the legal situation retrospectively by discretionary departures from established laws.

Several Latin maxims  such as, “Nullum crimen, nulla poena sine praevia lege poenali” (no crime can be committed, nor punishment imposed without a pre-existing penal law), “nulla poena sine lege”(no penalty without law) and “nullum crimen sine lege”  (no crime without law), amplify  this principle of legality.

Former Speaker of the House of Representatives Dimeji Bankole and his Deputy, Usman Bayero Nafada - acquitted but...

Little wonder why trial Justice Suleiman Belgore of an Abuja High Court sitting at Apo, on Wednesday, exculpated the former Speaker of the House of Representatives,  Dimeji Bankole,  and his Deputy, Usman Bayero Nafada from prosecution over alleged illegal decision that was taken by the 6th session of the House   to enhance their “welfare packages” and “running costs” with funds sourced from two financial institutions.

While upholding a “no-case-submission” that was made by the hitherto accused persons, Justice Belgore noted that “though it is morally wrong, morally indefensible and morally insensitive for the members of the House of Representatives led by the accused persons to have increased their “running costs” from N27million per quarter, per member, to N42million, it did not amount to a criminal offence but a moral wrong.”

In essence, what the judge simply meant was that though the duo broke the rules, they did not break the law!

Rationalising the logic, the trial judge maintained that the legislature, being a different arm of government, the Revenue Mobilization Allocation and Fiscal Commission (RMAFC) could not fix the “running costs” for members of the House.

He said the lawmakers were at liberty to increase their “running costs” to whatever amount they so collectively wish, saying RMAFC could only fix “wages” and “allowances” and not “running costs” as “running costs” do not qualify as “allowances.”

Logic!

Though a 37-man committee of members of the legislative House  sat and took the said illegal decision, yet, only the two presiding officers, Bankole and Nafada, were on June 13, 2011, arraigned before the High  Court by the Economic and Financial Crimes Commission, EFCC.

In a 17-count criminal charge it entered in court, the anti-graft agency specifically alleged that the duo, being entrusted with House of Representatives’ Account No.00390070000018 with the United Bank of Africa Plc and the Overhead Account of the House of Representatives with First Bank of Nigeria Plc, properties of the Federal Government of Nigeria, dishonestly used the said accounts to obtain loans totalling to about N40 billion.

It further alleged that after the said loan was secured, the former  Speaker and his  Deputy, acting in breach of public trust, used the sourced money to enhance allowances and ‘running costs’ of the House  members, saying their action was in violation of the approved remuneration package for political, public and judicial office holders as prescribed by the Revenue Mobilization Allocation and Fiscal Commission, RMAFAC, and the extant Revised Financial Regulations of the Federal Government of Nigeria, 2009.

The commission maintained that the offence committed by the accused persons  contravened section 97(1) of the Penal Code Act, Cap 532, Laws of the Federation of Nigeria (Abuja) 1990,  and  is punishable under section 315 of the same Penal Code Act.

Bent on proving their culpability, the agency called twelve witnesses to testify in court, even as it tendered 41 separate proofs of evidence, which it pleaded the trial judge to consider with a view to convicting the  accused persons.

In the course of the trial that lasted for eight months, the trial judge dismissed various applications that were filed by the former lawmakers in a bid to quash the charges against them.  Besides challenging the legal competence of the charge, Bankole had pleaded the judge to disqualify the prosecuting counsel, Mr Festus Keyamo, on  the grounds that he did not obtain a “FIAT” from the Attorney General of the Federation before charging the matter to court. He raised issues of bias against Keyamo, describing him as an “agent of witch-hunt.”

Despite the insistence of the trial judge at that time that a prima-facie case was successfully meted against the accused persons, however, the anti-graft agency was astonished beyond limit when the same judge, in his final verdict, held that the same accused persons had no case to answer.

The legal rigour and tax-payers money wasted while the trial lasted has made pundits to query whether indeed the juice was worth the squeeze. More so, in view of an observation that was made by the court regarding the inability of the agency to try management staff of the National Assembly who allegedly abated the said illicit transaction that culminated to the 17-count charge, could the EFCC be said to have done enough?

As it stands, this question is now left for the determination of the Abuja Division of the Court of Appeal which is now seized with the facts of the case.

Bankole had,  in a preliminary objection he raised against his trial, argued that “an agreement to approve the allowances and/or  running cost  of  members of the House  by a resolution  at  their  executive  session without the consent and approval of the RMAFC cannot be an agreement to commit an infraction of any written law or at all.”

In his three-hour judgment, Justice Belgore upheld the argument, saying it would be legally wrong to hold the duo “vicariously liable” for a unanimous decision that was taken by entire members of the House.

IMPLICATIONS

What this means is that    any session of the legislature could place reliance on the verdict to illegally divert monies,  originally captured in budgetary allocation of the House for serious legislative businesses, towards achieving frivolous ends,  after all, going by the court ruling, moral sins cannot be punished; and running costs are different from salaries and allowances!

Remarkably, the Clerk of the House, Mr Mohammed Ataba Sani-Omolori, had,  in his oral testimony before the court, enumerated names of all the lawmakers he said pressurised the former Speaker to set-up a committee to ascertain how much should be redirected towards the enhancement of “running costs” and “welfare packages” of members.

Omolori said:  “After that 1st executive session, one week  later, the 27-man committee tendered their report where they proposed all the enhancement they desired from the budget after which the House leadership asked them to bring the said report to me.

Meanwhile, about four members of that group approached me, they did not come to discus the rationale behind the sought increment, but to direct its immediate implementation. My lord, I promptly notified the then  Speaker (Bankole) who urged me to ensure that  the  rules were followed to the letter.

“ However, agitation from members became more serious.  From that time till May 12, the House couldn’t even perform its constitutional duties as members insisted that they were either paid what they wanted or the leadership of the House would be sacked.

The tension gave rise to a meeting that held at the Speaker’s  Guest House in Asokoro where the situation on ground was exhaustively discussed.  Guided by the fact that the entire demand falls within the N60 billion in the budget that was just passed at that time,  the leadership decided to source for the fund through  bank loan or the two other arms of the National Assembly i.e. the Senate or Management.

It was at this juncture that I wrote to the Speaker, raising concern about the fact that whatever we needed to do must be properly situated in the budget.

A memorandum I minuted to the Speaker  contains a  portion in which   I emphasised that even though the members were not working outside the budgetary allocation, the running cost was however not empirically provided for in the budget.  My letter was ignored and the loan was subsequently obtained and members were duly paid the enhanced running cost even in arrears.”

Meantime, in a Notice of Appeal the EFCC filed pursuant to section 241 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended),  it urged the appellate court to set-aside the trial court judgment and okay the former lawmakers for trial.

It argued that “even though the accused person Bankole  was not a signatory to the House of Representatives’ Accounts, so long as he was an approving authority in respect of those accounts, then he was definitely entrusted with the accounts.”

According to the EFCC, “evidence clearly shows that the accused person was present at meetings where it was collectively resolved  to obtain loans and increase  running costs. Without those resolutions, the accounts would not have been operated/accessed in the manner they were operated/accessed.

Both in fact and in law, the offence of theft can be charged together with criminal breach of trust, contrary to the decision of the learned trial judge. All the ingredients of the offence of theft were proved by the prosecution.

“The learned trial judge erred when he held that the accused person had no case to answer in respect of count 1 of the charge which is in relation to conspiracy to commit criminal breach of trust. The prosecution established all the ingredients of conspiracy to commit the said offence.

So long as the accused person had no authority to approve and increase “running cost” and to obtain loans, then their resolution was an agreement to commit an act by illegal means.  The learned trial judge erred when he held that the accused person had no case to answer in respect of  count 12 of the  charge which is in relation to conspiracy to commit theft.

The prosecution successfully established all the ingredients of the said offence”. Consequently,  the EFCC  urged the appellate court to allow the  appeal and set aside the ruling of the lower court dated 31st day of January, 2012, to the effect that the 1st Respondent has no case to answer, as well as issue an order remitting the case to the lower court for retrial”.

The date of commencement of the appeal is being awaited.