The EFCC Has Had Nineteen Years to Charge Atiku. This Week, 128 Days Before the Election, It Reopened His File Instead.

On Monday morning a former member of the House of Representatives walked into the EFCC's headquarters in Jabi at two minutes to ten. He came out at seven minutes past four. In between, according to the reports that reached the papers on Wednesday, Ehiozuwa Johnson Agbonayinma sat with investigators, adopted a petition his lawyer had written on August 27, and answered questions about a report the commission itself wrote in September 2006. The report is about Atiku Abubakar. The commission's acknowledgement letter says an investigation has commenced. Its spokesman had not returned calls by Wednesday night.

Atiku is the ADC's candidate for president. The election is on February 20. That is 128 days from today.

I want to say at the start that I do not know whether Atiku Abubakar did what the 2006 report says he did. I have not seen the report. Very few people have, and in the sense that matters nobody knows, because in twenty years no court anywhere has been asked to decide it with him in the room. That is the part of this story I keep returning to, and it is not the part anyone is arguing about.

Here is what the report was. In 2005 and 2006, with President Obasanjo and his Vice President at open war over a third term, the EFCC under Nuhu Ribadu investigated Atiku's handling of the Petroleum Technology Development Fund. The allegation, as it was set out in court papers that October, was that $125 million of the Fund's money had been placed in two banks in 2003 on his approval, that $20 million of it went into Trans International Bank that October without the Federal Executive Council's approval, and that the placements were arranged to support a television company and a shipping company chaired by a businessman close to him. An administrative panel set up by the President adopted the commission's findings and the Federal Executive Council ratified them in September 2006. The following spring INEC used that indictment to take him off the presidential ballot.

The Supreme Court put him back on it, unanimously, five days before the vote. It did not say the EFCC was wrong. It said INEC had no power to disqualify anybody, and that deciding whether a candidate was fit to stand was a job for the courts. The Senate's own committee on the Fund, which Atiku's office still cites, found no direct evidence that he had enriched himself and a list of procedural lapses. Every ruling on this matter since has been about process. Whether an administrative panel can indict a man. Whether an electoral commission can act on it. Nobody has ever been asked whether the money moved the way the commission said it did.

The commission's position in 2006, as the petition recalls it, and nobody at the commission has contradicted it this week, was that it could not charge a sitting Vice President because of Section 308 of the Constitution, and that it would once the immunity lapsed. Whether or not anyone said that aloud, the Constitution said it for them. The immunity lapsed on May 29, 2007. It is now October 2026. The commission has changed hands six times since then. Atiku has moved through four parties, including three years inside the APC while Buhari's EFCC was charging former governors in numbers. No chairman under Yar'Adua, Jonathan, Buhari or Tinubu filed a charge. None of them closed the file either. Those are different things, and the difference is the subject of this issue.

The allegations are not nothing, and I would be doing exactly what I criticise if I pretended otherwise. In February 2010 the United States Senate Permanent Subcommittee on Investigations published a case study on Atiku inside a report on how foreign officials move money into America. It found that his then wife, Jennifer Douglas, a US citizen, had helped bring more than $40 million in what the Subcommittee called suspect funds into the country between 2000 and 2008, nearly $25 million of it wired from three offshore companies into more than thirty accounts she opened. Siemens, which pleaded guilty to bribery in Washington in December 2008 and paid more than $1.6 billion in penalties across two countries, told the Subcommittee it had sent payments to one of those accounts. When the Subcommittee asked Atiku about any of this, he declined, through counsel, to answer. He was never charged in the United States. He was never charged here. Neither fact tells you much about the other.

His office's reply, when Premium Times set all of this out again in September, was that an allegation repeated is not an allegation proved, that a suspicious activity report is not a conviction, and that no court or independent committee has ever found against him. All of that is accurate. His spokesman called the petition panic dressed up as accountability, then told the President to unzip his own pocket and show Nigerians his American files. Dino Melaye told an ADC town hall that you cannot use the EFCC to torment the creator of the EFCC, which is true as history and useless as law. That is what politics looks like in a country where the files never close. Every side keeps one.

And this is the gap. Nothing in the EFCC Act requires the commission to finish an investigation. There is no limitation period on the offences the 2006 report describes, so the file can be reopened in any year. There is no duty to publish a decision not to charge, so it is never closed. There is no procedure by which a man named in a commission report can walk into a court and demand that the state either try him or say in writing that it will not, and no procedure by which the public can force either answer. The commission can charge, or close, or do neither, and the law is indifferent to which. In that condition a file stops being evidence of anything. It becomes an instrument, and it belongs to whoever runs the commission in the year it becomes useful.

Two weeks ago I wrote about the other end of the same instrument. Ifeanyi Okowa was arrested over N1.3 trillion in derivation funds, defected to the APC, and won its Senate ticket for Delta North. Yahaya Bello is on trial and won the ticket for Kogi Central. The EFCC says both probes are still open, and I argued that still open was the point. A probe that never becomes a charge keeps a ruling party's candidate careful. A probe that sat untouched for nineteen years and reopens four months before the vote does something to an opposition candidate that a charge could not, because a charge would have to be proved. Nobody has to prove a reopening. The letter does the work on its own.

I should be fair to the petitioner. Mr Agbonayinma says he acted as a Nigerian and not as anyone's representative, and he has threatened to sue a man who suggested otherwise on X. I have no evidence he is wrong about that. His petition's central complaint, that the commission said it would prosecute when the immunity ended and then did not, is also the correct complaint. It is the one I am making. Where we part is on the remedy. He wants the file reopened. I want a rule that would have stopped it sitting there for nineteen years, available to whoever found a use for it. He has also, he says, written to Donald Trump. I wrote in June about what happens to West Africa when the extraterritorial enforcer steps back. This is the view from the other side: a Nigerian citizen asking an American president to do what his own commission has been free to do since 2007.

On Tuesday, the day after Mr Agbonayinma's six hours in Jabi, the Vice President stood in for the President at a workshop for judges and praised the EFCC for 10,872 convictions in 34 months. I do not doubt the number. It has never been the problem. The commission's count of former vice presidents brought to trial is zero, and it was zero in 2007 as well. The Chief Justice told the same room that the seriousness of an allegation must not determine the outcome of a trial. I agree with her. In this case there is no trial. There has been none since 2006, and there is no mechanism that would have produced one, and that is why the seriousness of the allegation has been doing all the work instead.

What would a fix look like. It is not complicated, which is the usual problem with fixes in this newsletter. A rule that an investigation of a person who held immunity must end, within a fixed time after the immunity lapses, in either a charge or a published decision not to charge, with reasons. And a right for anyone named in a commission report to go to court and demand that decision. Neither would have kept Atiku off a ballot or put him on one. They would have made the EFCC say, at some point between 2007 and today, which of two things it believed, and live with the answer.

The commission's letter says the investigation has commenced. A letter in 2006 said something close to that. I would like to be wrong about where this one is on February 21.