- Category: Ephraim Emeka Ugwuonye Esq.
- Published on Saturday, 16 June 2012 22:02
- Written by Ephraim Emeka Ugwuonye, Esquire
"One thing clear to all observers is that right from the start, Otedola was working hands-in-glove with the Presidency in a scheme that tends to redefine the term, entrapment. If all they wanted to do was to enforce the anti-bribery laws of Nigeria against Hon. Lawan, that could have been accomplished just with any evidence of
him demanding for bribe."
NIGERIA’S SHAME – THE REAL DANGER AND THE MISTAKEN ASSUMPTONS
(The Strategic Calculations of A Constitutional Lawyer)
As the drama continues to unfold in Nigeria over the apparent bribing of a leading lawmaker by a businessman friend of the government, we run the risk of failing to grasp the real dangers and the full implications of that development. Nigerians must try to understand the true threats and the real targets – which could end up being the envisaged constitutional equations of power in a democratic Nigeria.
One thing clear to all observers is that right from the start, Otedola was working hands-in-glove with the Presidency in a scheme that tends to redefine the term, entrapment. If all they wanted to do was to enforce the anti-bribery laws of Nigeria against Hon. Lawan, that could have been accomplished just with any evidence of him demanding for bribe. A tape record of the conversation was sufficient to establish evidence of demand for bribe.
Who initiated the bribe? The videotapes would never show that, and that evidence is material. Otedola could have any and all equipment and gadgetry he needed to record his dealings with Lawan without the involvement of the SSS. And even if the SSS came in, its operatives could have been posted in positions in Otedola’s house to listen into the conversation and arrest Lawan on the spot for demanding bribe. There was no need to ship currencies, mark them, and carry them in bundles around with Lawan clownishly sticking a few wads in his cap and carrying them on his head.
Thinking hypothetically as a lawyer hired to work on this case, I will briefly ignore the facts and storylines that have been fed to the public, and examine a wholly different set of scenarios that could have been suppressed by the actors. On the balance of incentives alone, Lawan had the least incentive to get involved. All he gets is a promise of 3 million dollars and he risks losing his newly won status as a national hero. He risks the ultimate humiliation and an ignominious career end. On the other hand, Otedola gains hundreds of millions of dollars and continues his business.
For Jonathan’s Government is a different thing altogether. The subsidy crisis had put the administration in its worst nightmare, more threatening to its existence and legacy than the Boko Haram problems. Muddying the pool, confusing the public and derailing the House investigation and implementation of its report are clearly things that Jonathan administration could benefit mightily from. And motive remains a compelling tool in any analysis. The popular opposition to government policy on fuel subsidy was exacerbated, rightly so, by the demining Report produced by the Lawan-led Committee of the House.
Therein lies the true danger and the real threat for the Nigerian democracy. The Executive’s desire and resolve to intimidate, emasculate and undermine the legislative arm of government constitute a total affront on the constitution of the country. The Nigerian civilian government has had a long history of such Executive attacks on the fundamental constitutional values of a modern democracy. It is either that the Presidency fails to respect the principles of federalism or, as in this case, it fails to respect the principles of separation of powers and the notion of limited government.
Be that as it may, it is clear that Otedola-Lawan operation is now a failed operation. The House did not collapse and it did not plunge into a leadership crisis as must have been calculated by the initiators of this bribery saga. Rather than destroying the Report, it has given new life and vigor to it. Nigerians are now more likely to demand that the Report be implemented in full. In other words, the corrupt elite have dribbled themselves into the wall. In order to promote corruption, a scenario has arisen where it becomes difficult in the future for Nigerian businessmen to bribe Nigerian lawmakers.
And back to the courtroom strategy for Hon. Lawan’s defense team. The case against Lawan is actually weak. At best, it was a clumsy act of entrapment, pushed to absurdity. The greatest weakness of the case is that as you follow the time-track and players, it becomes more difficult for the government storyline to hold straight. Because the tapes cannot tell who initiated the bribe transaction, it will not be easy to discredit Lawan’s defense that he accepted the money to hold it as evidence of an attempt to bribe him and undermine the work of his Committee. This is particularly so if Lawan believed that Otedola was not acting alone, but was fronting for the Presidency or some powerful cabal. It could therefore be a case of each group trying to outwit and ensnare the other group. You simply don’t entrap an entrapper. Besides, there is only so far you can rely on such videotape in court.
The prosecutor would say that Lawan did not act timely to establish any legitimate purpose for taking the money. But also, the Government and the law enforcement agencies did not act timely either. Why didn’t they arrest him with the money in his pocket, red-handed? If the Executive could set up a sting operation to nab a member of the Legislature, using Otedola in a sham bribe-giving staging, why wouldn’t the Legislature attempt to counter the Executive by counter-staging a sham bribe-taking? If Otedola is not guilty of giving bribe despite the fact that the tape shows him doing so, why would Lawan be guilty of taking bribe, just because the same tape shows him doing so? From a constitutional law point of view, Lawan’s lawyer should be examining some fundamental questions of separation of powers.
If arraigned on Monday, the judge would grant Lawan bail. And that would be the end of the matter. Nigerians should prepare for another show where so much noise would be made about a criminal trial, which then ends up in a smoke. But even more likely, the Nigerian police would not want Lawan to appear in court and have his lawyers file documents and make statements that would become public record. They would like to give him administrative bail because that would suppress the embarrassment that the government could face.
POST SCRIPT: After writing this article, the author learned that Hon. Farouk Lawan was granted administrative bail by the Police on the condition that he would bring the bribe money to the Police. That condition is unconstitutional. It may violate the accused’s right against self-incrimination. It is tantamount to granting him bail on the condition that he would plead guilty to the offense. I hope his lawyers will react appropriately to that.
By Emeka Ugwuonye, Esquire
Washington, DC; June 16, 2012