Politics Of Kalu’s Inconclusive Polls, Graft Prosecution And Incarceration

Orji Uzor Kalu

BY LEO SOBECHI

The recent ruling by Nigeria’s Supreme Court upturning the incarceration of Senate Chief Whip, Orji Uzor Kalu, by Hon. Justice M. B. Idris of the Federal High Court, Abuja, underscores the country’s undulating national politics that began in 2015.

A quick rehash: With a lofty electioneering promise to change the way government business was carried out in Nigeria, notably fighting official corruption, defeating Boko Haram insurgents and diversifying the economy, the newly minted All Progressives Congress (APC) defeated erstwhile invincible political armada, the Peoples Democratic Party (PDP).

What made the 2015 presidential poll very momentous was not only because APC fielded a serial presidential aspirant and former military head of state, General Muhammadu Buhari (rtd), but also that the PDP had as its standard-bearer, an incumbent in Dr. Goodluck Jonathan.

While Nigerians looked forward to the promised change, despair quickly set in when the president found it hard to put together a federal cabinet of aides, even as the suspense left a debilitating impact on the economy.

In the absence of a federal cabinet, two huge national happenstances riled the citizenry: The man elected President of the 8th Senate, Dr. Bukola Saraki, was arraigned at the Code of Conduct Tribunal (CCT), for political reasons, but on the guise of some discrepancies in the Asset Declaration forms he filed 12 years prior when he served Kwara State as governor.

Secondly, the first election to be conducted by the Independent National Electoral Commission (INEC) after its well-received outing in 2015 presidential poll threw up what has settled in Nigeria’s political lexicon as inconclusive elections.

Kalu’s defection politics/defective trial

NOT long after the 2015 loss of the presidential power by PDP, Kalu, who served Abia State as its governor from 1999 through 2007, started singing a dirge about opposition politics. He lamented what he called former President Olusegun Obasanjo’s reprisal against him for standing alongside other ‘progressives’ to defeat a tenure elongation plan devised by the former president’s insiders.

Signs that the former Abia State governor had resolved to jump ship to APC emerged when he sent his mother, Chief (Mrs.) Eunice Kalu, and brother, Mascot Kalu, to 40 Balantyre Street, where they were received by the then APC national chairman, Chief John Odigie-Oyegun.

That was also despite the fact of his incomplete metamorphosis from his Peoples Progressives Alliance (PPA), upon which he contested the 2015 Abia North Senatorial seat poll to PDP, whose presidential candidate he supported.

By the time the various election petitions and re-runs were concluded, Kalu announced his membership of APC at his ward in Igbere. Not long after his eventual voyage to the party in power than words started making the rounds in Umuahia and Abuja that the former governor was seeking shelter for case No: FHC/ABJ/CR/56/07, a corruption criminal charge filed in 2007 shortly after he left office.

Having joined the governing party and buoyed by the much sought-after federal might that is a huge fillip to politics in the Southeast, Kalu regaled Nigerians through the media with sad tales of how he lost his major investments in banking, shipping and aviation to the highhanded vendetta machinations from former President Obasanjo.

While he accused PDP of being peopled by ingrates, especially given the quantum of financial support he rendered to build the party, Kalu did not spare the umbrella socio-cultural organization of Igbo, Ohanaeze Nd’Igbo, stressing that everybody should bear his burden even as he claimed that he was made by northern political actors in business and commerce.

Yet, as the restless former governor continued to stand in the gap for APC and the presidency, the perception grew that he was sure to bluff his way out of the corruption trial, particularly after he was honoured in Daura, President Buhari’s hometown, with a traditional title. But, while the maverick continued his political exuberance, the Economic and Financial Crimes Commission (EFCC) amended the charges against him, a developmental that stunned Kanu and his supporters.

Coming barely nine months to the 2019 general elections, for which he had expressed the intention to recontest Abia North Senatorial seat, observers claimed that the amended charges were proof that President Buhari’s anti-corruption battle was no respecter of persons.

Others, however, dismissed the development as part of the antics of EFCC to continue to pull the wool over the eyes of Nigerians, that the commission was not looking at graft cases through partisan binoculars.

As it turned out, the amended charges, which came after an adjourned sitting on May 11, 2018, brought the counts to 39, upon which the accused persons promptly filed no-case submissions and played up the air of suspense surrounding the former governor’s alleged N3.2 billion fraud alongside his former director of finance, Jones Udeogu and Slok Nigeria Limited.

Not long after the Federal High Court dismissed his no-case submission, Kalu traveled to Germany, where he was said to have undergone a surgical procedure for an undisclosed ailment. Although pictures of the embattled former governor in a hospital with a bandaged leg were circulated on social media platforms, it was widely speculated that the first accused person had escaped overseas pending Buhari’s loss of the 2019 presidential poll.

But putting a lie to the summations of conspiracy theorists, Kalu returned to Nigeria at a time posters announcing his presidential ambition adorned the entire stretch of Airport Road through Lugbe to Abuja city centre. As a political actor that craves headlines and controversies, Kalu made a song and dance of his denunciation of presidential aspiration, explaining that “President Buhari was doing well and deserves a second term” in office.

On June 26, 2018 the office of the President of Court of Appeal (PCA), Abuja, received an application from Kalu’s counsel, Gordy Uche, asking PCA that Justice Mohammed B. Idris, who had been elevated to the Court of Appeal, be allowed to conclude the trial of the criminal corruption case.

Titled, “Application for Hon. Justice M. B. Idris to conclude the part-heard trial in charge No: FHC/ABJ/CR/56/07, Federal Republic of Nigeria vs. Orji Uzor Kalu & 2 others,” the counsel to Kalu stated: “We are counsel to the 1st defendant (Orji Uzor Kalu, the former governor of Abia State) in the above corruption criminal charge, currently pending at the FHC, Lagos and which was being handled by His Lordship, Hon. Justice M. B. Idris, who was last week sworn-in as a Justice of the Court of Appeal…

“However, the above charge was filed since the year 2007, about 11 years ago, and is now almost at its concluding stages after a protracted trial in which the Prosecution filed 7 additional Proofs of Evidence, fielded 19 witnesses and had closed its case. The defence has since filed their respective No-Case-Submissions, which would have been ruled upon by His Lordship save for his recent elevation to the Court of Appeal.

“We are therefore constrained to humbly request that Hon. Justice M. B. Idris JCA be allowed to conclude the trial of the part-heard corruption trial at the Federal High Court, Lagos.

“Our application is hinged on the provisions of Section 396 (7) of the Administration of Criminal Justice Act 2015, which provides that: “Notwithstanding the provisions of any other law to the contrary, a Judge of the High Court, who has been elevated to the Court of Appeal, shall have dispensation to continue to sit as a High Court Judge only for the purpose of concluding any part-heard criminal matter pending before him at the time of his elevation and shall conclude the same within a reasonable time; provided that this subsection shall not prevent him from assuming duty as a Justice of the Court of Appeal.””

From Senate to prison

WITHIN the period of the prolonged trial, Kalu stood election on three consecutive times for the Abia North Senatorial District, only to be elected on the third attempt after his defection to the governing party.

One of his rivals in the senatorial contest, Senator Mao Ohuabunwa of PDP, cried foul over the return of Kalu as the winner of the February 23, 2019, National Assembly, complaining that the APC candidate employed soldiers and INEC officials to swing the votes in his favour.

Although the National Assembly Election Petition sitting in Umuahia invalidated the senatorial contest and Kalu’s victory, the Court of Appeal sitting in Owerri upheld the election, thereby rendering the order for a re-run unnecessary.

Meanwhile, as he battled with the election dispute, Kalu schemed his way to emerge as Senate Majority Whip, after stepping aside from his contrived aspiration for the post of Deputy President of Senate.

But, not long after he won his case against the tribunal ruling, which nullified his election into the senate at the Appeal Court, the application by his counsel to have Justice Idris, conclude action on the 12-year old corruption trial received positive response.

On December 12, 2019, Kalu and his fellow respondent, Udeogu, were handed 12 and 10 years jail terms apiece, just as the court ordered the winding down of Slok group owned by the former governor.

Nullification of judgment

FIVE months after the Senate Majority Whip took up residence, first in Ikoyi and later at Kuje prison, the apex court declared his incarceration null and void, explaining that Justice Idris lost the jurisdiction to jail the former Abia State governor.

The apex court, however, ordered a retrial of the accused persons. No matter which way the retrial ends, whenever it takes off, public perception would harbour doubts about justice and the merit of the outcome.

It would be recalled that barely two weeks before the committal of the Senate Whip to prison, the Chief Justice of Nigeria (CJN), Justice Tanko Muhammad, warned presiding judges of the nation’s courts of superior jurisdictions to ward against using technicalities to obfuscate justice delivery in the country.

The CJN, who spoke at the opening of 2019 All Nigeria’s judges’ conference of superior courts at the National Judicial Institute (NJI), regretted that reliance on technicalities in the dispensation of justice contributes to the delay of justice delivery.

Speaking on the theme of the conference, which was “Sustaining Democracy through Effective and Efficient Administration of Justice,” Justice Tanko stated: “In order to sustain public confidence in the judiciary, judges must continue to be proactive by not allowing technicalities to stand in the way of substantive justice.”

But against Friday, May 8, 2020, nullification of Kalu’s conviction and committal, it is open to conjecture whether the CJN’s position on technicalities received proper attention or was seen as a mere feel-good public relations message to the citizens.

In their unanimous judgment read by Justice Ejembi Eko, the seven-man panel of Justices ruled Justice Idris out of order, pointing out that the fiat he got from the PCA in line with the Administration of Criminal Justice Act (ACJA) did not give him the constitutional enablement to descend from the court above to deliver judgment on a matter in an inferior court, having become a Justice of the Court of Appeal (JCA).

The ruling has thrown up a lot of legal issues, but the entire weight of the pros and cons, merits and demerits of the inconclusive prosecution echoes the politics of the governing APC, which promise of change continues to engage public debate. Did the desire to make a statement about the efficacy of the anti-corruption fight prompt the judiciary under CJN Tanko to rush the defective ruling given that the matter had endured three electoral cycles?

Was there back-channel consultation to grant some reprieve to the Senate Whip so as to push back on the growing perception that the former Abia State governor was imprisoned to disable the Southeast’s contention for the 2023 presidency?

The Secretary-General, Movement for National Restructuring (MNR), Mr. Fred Nzeako, said the bulk of the blame for the disjointed judicial process should go to the electorate in Nigeria, who he said elected low-quality federal legislators bereft of intellectual depth for balanced legislation.

Nzeako, who is a lawyer and administrator, declared that even if Kalu’s lawyers do not brag to be the masters of the law, they could brag to be the masters of its loopholes.

According to him: “Who then can be blamed for what the society considers a judgmental loss? Was it the fault of the National Assembly, which made the laws and the Acts? No; they were eager to cure a very bad situation where hitherto cases had dragged for decades, including this one that lasted for over 11 years.

“The members of NASS, in their wisdom, gave what they felt was their best. Does one give what he has not? No. They gave what they had, based on the limits of their knowledge and intellectual capacities. After all, the constitution provides that they needed only attempted School Certificate or its equivalent to be in the Senate and House of Representatives.

“Blame the electorate for electing apex legislators with doubtful competencies.”

--------------THE GUARDIAN

Kalu's Conviction - EFCC And Sanctity Of Commercial Transactions

Orji Uzor Kalu

BY SHAKA MOMODU

Since 2004 when the former governor of the Central Bank of Nigeria (CBN), Professor Charles Soludo, carried out reforms of Nigeria's financial infrastructure, the system has grown in leaps and bounds. The reforms have dramatically transformed the banking landscape from an unfit-for-purpose financial system with 89 fragile banks that could neither support the economic transformation of the country through private sector-driven initiatives nor compete with foreign banks into (22 as of now) bigger and stronger banks. According to Soludo, "Confidence in the system was very low. All the banks put together were smaller than the fourth-largest bank in South Africa, and none of them was in the top 1,000 banks in the world. If any private sector entity needed a loan of US$500m, it had to syndicate it from all the banks put together - or go abroad."

Nigeria's total banking sector assets amounted to less than 20% of GDP at the time, and bank loans were about 4% of the country's GDP. "Talk about a private sector-led economy was simply a slogan, as there was no financial system to power that," continued Soludo. "We concluded that the system needed to be brought down and recreated from scratch... .. Nigeria had never experienced a policy revolution of that magnitude", he told Lawrie Holmes of Public Finance International in 2012.

From that pathetic pre-reform situation, the banking system has witnessed a massive turnaround to a very robust, strong, versatile system that now finances multi-billion dollar private sector projects. Dangote Group's massive expansion and growth are owed partly to capital financing by our local banks; something previously impossible pre-consolidation. Some of the banks are now so big and have gone global that anything that smells of corporate greed, incompetence or scandal can wreck the system very quickly. The revolution and evolution have been truly phenomenal.

But the gains of that consolidation that have put several Nigerian banks among the top 500 in the world are in danger of unravelling as a result of heavy-handed regulatory interference and broader considerations beyond pure business imperatives.

The agencies that investigated and are enforcing the outcome of the Orji Kalu case have hurt the dispassionate outcome of it by introducing into the enforcement process an interpretation outside the judgment of the court that goes against the grain of professional governance and regulatory administration. Indeed, the manner of enforcement of the court judgment against Kalu could easily hurt the steadily repaired reputation of Nigeria's business environment and the Ease of Doing Business. The recent interrogation of the Managing Director of Access Bank by the Economic and Financial Crimes Commission (EFCC) over a dispute concerning the conviction of the former Abia State Governor, Orji Kalu and the winding-up order against his company, Slok Holding, is yet another disturbing development in the series of misadventures by investigative authorities.

Available information seems to suggest that the defunct Diamond Bank, which merged with Access Bank last year, financed the acquisition of 3 vessels by Slok with depositors' funds amounting to $85m. The vessels, it is understood, have a long-term contract with Mobil Producing.

Last December, Orji Kalu, the principal shareholder of Slok, was convicted by a Federal High Court in Lagos of corruption and stealing of Abia State money and sentenced to 12 years in prison while his company, Slok, was ordered to be wound up and its assets forfeited to the government. The conviction was a commendable job done by the EFCC, no doubt.

But fellow Nigerians, does it make sense that the agency, which prosecuted Kalu, should now confiscate the vessels that were financed by Diamond Bank (now Access Bank by virtue of the 2019 merger)? In a real sense, are the vessels a part of the assets of Slok Holding when huge depositors' money loaned to Slok to acquire the vessels is unpaid? So when EFCC moved to take inventory of Slok's assets, the understanding is that the bank attempted to explain to the anti-corruption agency that Slok has an obligation to Access Bank, now the creditor bank and that the vessels in question do not belong to Slok or Orji Kalu. The loan obtained by Slok was secured by the vessels and the Mobil contract. One doesn't have to rack one's brain to understand the underlying structure of the transaction. It is therefore difficult to understand the insistence of the anti-corruption agency to vitiate a valid commercial contract between private sector entities. By pursuing this approach to asset recovery, the agency would, inadvertently, be creating dangerous precedence capable of discouraging private investment by both local and foreign investors.

The obvious questions are, should the EFCC have its way, who will repay the depositors' funds used to finance the acquisition of the vessels? Is this not another way of shortchanging the shareholders of the lending bank? The normal practice is that when a company is going into liquidation, all liabilities are factored in so that no one gets the short-end of the stick. What will EFCC do with the vessels? Sell them in compliance with the winding-up order and remit the money to the government when Slok's financial obligation to Access Bank has not been met? The solution would be a learning moment and a defining point in the resolution of a commercial loan involving the company of a politically exposed person.

In an opinion piece in February last year titled, 'Things Fall Apart, But is the President Aware?', a former Chairman of Stanbic IBTC, Mr. Atedo Peterside had lamented the damaging effect of the actions of regulators and law enforcement agencies on businesses/investments and stated that it was beginning to undermine business confidence with the potential of scaring away investors. He said the biggest negative of Buharinomics was allowing hard-working but sometimes overzealous law enforcement officers to go after private sector businesses in a manner that could discourage investment. "The business community then takes fright and investors flee, thereby sending the economy into a tailspin", he added.

In June 2019, the United Nations report, as published by Reuters, stated that Foreign Direct Investment into Nigeria, Africa's top oil producer plunged by as much as 43 percent to $2 billion in 2018. The report cited two significant hindrances to investment in Nigeria, namely regulatory activities and harassment by security agencies. Following the publication of that report, Peterside took to twitter to once again vent his anger on Nigerian regulators and law enforcement agencies who appear too willing to shakedown top chief executives of companies over one form of regulatory infraction or the other with the following tweet: "Nigeria's rogue regulators finally succeeded in chasing away Foreign Direct Investment, (FDI)? Ghana had more FDI in 2018 than in Nigeria. Rogue security agencies contributed also. Nigerians no longer wish to invest here either."

The blame for the huge drop in FDI and investors' apathy towards Nigeria was allegedly the result of the dispute between the government and South African telecom giant, MTN over repatriated profits. As a result, Banks HSBC and UBS both closed their representative offices in Nigeria in 2018. The situation was compounded by EFCC when it entered the political arena, accusing the HSBC of money laundering immediately the bank predicted that if President Muhammadu Buhari was returned to office, it would "stunt the economy." EFCC had, apparently, for the optics, vowed not to "rest on its oars" till all the looted funds allegedly in possession of the bank were repatriated back to Nigeria.

For those who don't know, HSBC is one of the largest banking and financial services organisations in the world. Its international network comprises around 7,500 offices in over 80 countries and territories in Europe, the Asia-Pacific region, the Americas, Africa and the Middle East. Its mere presence in Nigeria was a huge confidence booster for our economy, and to have the bank exit on the altar of politics, undermined the integrity of our system. Apart from the fact that it is a correspondent bank to many of the local banks, many of our country's international transactions such as Euro bonds, are packaged jointly with it.

Again, in September 2018 after the CBN ordered Standard Chartered and three other lenders to repay $8.134bn for allegedly issuing irregular Certificates of Capital Importation on behalf of some offshore investors of MTN Nigeria Communications Limited, armed operatives of the Economic and Financial Crimes Commission (EFCC) stormed the headquarters of Standard Chartered Bank in Lagos during working hours, presumably to arrest Bola Adesola, the managing director of the bank in the full glare of the bank's customers who were later escorted out of the premises by EFCC operatives. It was a strange move by the anti-graft agency. The bank confirmed it then that EFCC operatives indeed entered its head office building but left shortly afterwards as there was no reason for them to be there. It is saddening that straightforward commercial disputes between regulators and business institutions which could have been resolved without any fuss with the cooperation of the latter have degenerated into a public spectacle.

The EFCC, on its part, said that it never sanctioned any raid on the headquarters of Standard Chartered Bank in Lagos, adding that the act might have been carried out by overzealous personnel. The commission noted that it's modus operandi when probing any transaction was to invite officials of financial institutions after discreet investigations and that it does not use strong-arm tactics. It added that what happened in Standard Chartered Bank was a breach "of the standard operating procedures of the commission, as it is not the style of the EFCC to openly raid the offices of banks and other financial institutions." I remain unpersuaded by EFCC's statement.

It is important to note that the investigative agency's governance framework involving private enterprises should build credibility in the legal system and protect enterprises from avoidable reputational damage. Dramatic actions of anti-graft bodies could discourage the much-needed foreign direct investments (FDIs). In recent times Nigeria's loss has benefited Ghana, which is in the midst of an oil and gas boom. With inflows of $3bn, it dethroned Nigeria and became West Africa's leading destination for foreign investment.

To reverse the migration of the much-needed FDI across the borders, the Nigerian government and its crime-fighting agencies must take the processes of institutional governance in commercial matters more seriously and protect the integrity of the financial system and the credit management process. Forfeitures should protect those that provide loanable funds. The recent EFCC/Slok/Access Bank dispute could erode business confidence and stall the inflow of foreign investment capital into the economy. Rather than insist on seizing Slok's contracted vessels and auctioning them off to third parties, EFCC should follow not only the letter but also, the spirit of the law. Open and frank discussions should commence with Access Bank towards finding an amicable solution to the matter in such a way that no party gets the short-end of the stick.

The Slok incident should serve as a learning moment for all parties and provide useful takeaways that will serve as a basis for due governance processes in future. For sure, the local and international business community is keenly watching as events unfold and would be deeply interested in how the tango ends. I'm watching with keen interest to see whether depositors' funds will be protected.

SOURCE: THIS DAY