Nigeria’s fuel subsidy scandal: Otedola, Lawan, Obasanjo, Jonathan, and the law.
By Ken Okorie
Special and Exclusive commentary to USAfricaonline.com, the USAfrica-powered e-groups of Nigeria360, IgboEvents, UNNalumni, and CLASSmagazine Houston. Follow USAfrica at Facebook.com/USAfricaChido and Twitter.com/Chido247
USAfrica, June 14, 2012: When the alleged bribery scandal involving the Nigerian House of Representatives Ad Hoc Committee which investigated the fuel subsidy deals broke few days ago this
June 2012, something did not seem to add up the way it all came out. At least, that was my initial impression. I watched some of the proceedings of the Farouk Lawan-led fuel Subsidy Investigation Committee of the House of Representatives on television.
It was serious business; as the proceedings charged very diligently and methodically at the fraud against Nigeria and Nigerians. Some of the questions, especially by Lawan (representing the Bagwai/Shanono Federal Constituency of Kano State since 1999), were tactically very sound hence he was able to pull out a great deal of critical information that was damaging to those involved in the fraud.
I therefore, could not help wondering why the Committee (and especially Mr. Lawan), having done such a spectacular job, would turn around to destroy everything it had accomplished, mindful also of the risk to the personal reputations of the Committee members!
Why would Lawan go asking Otedola (in Otedola’s residence) for bribe after the investigation was already concluded, and just before submitting his report to the House? It made little sense. The Lawan I watched in action seemed far more sophisticated to be that simple.
Even the allegation that Lawan caused Otedola’s companies to be removed from the report on the floor of the House raises more questions. Otedola has insisted in his public statements that his companies did not participate in the subsidy program. If indeed his claim is true, what then could the Committee have uncovered against the companies that could have been removed from the report? As the saying goes, he that carries not pot cannot have one fall off his head. What was Otedola trying to fix, if nothing was broken from his corner? If there was nothing to uncover, why would there be something to remove from the report? It is like trying to establish murder in the absence of a corpus (body).
On the other hand, public statements attributed to Chief Otedola in recent days merely strengthen suspicion as to his credibility. If indeed, Otedola joined with law enforcement in a sting operation, why did the video recording of the currency changing hands take a political route rather than stay within, and progress through, law enforcement?
Even as a president is ordinarily recognized as the Chief Law Enforcement officer of the nation, he lacks ”personal” jurisdiction to handle evidentiary matters that could be used to prosecute a case. That is why we have the Courts, a Ministry of Justice, and the Police who prosecute cases in the Nigerian system.
Worse still, how did this whole matter connect former President, Chief Olusegun Obasanjo?
On what basis did he acquire responsibility to be the one disclosing the existence of the tapes? All of this takes cognizance of the fact that Otedola is one of a handful of Nigerians that have benefited the most in recent and ongoing Obasanjo-led, PDP-dominated political dispensation.
The point is that everything about the handling of critical evidence in this matter, namely the alleged video tape of money changing hands, suggests a planned political maneuver to derogate the findings and conclusion of the investigation by destroying or raising critical questions about the credibility of the Committee and its members.
From a serious legal angle, all that has been reported thus far suggest that the prosecutors may have a tough time establishing criminal conduct on the part of Representative Lawan. If Lawan documented and reported the phases and steps in the monetary transaction to the House leadership and to law enforcement as he has claimed, it may be difficult to establish that his actions were indeed criminal. A crime does not occur simply because there has been an act, however wrongful. The act has to coexist with mens rea (criminal intent) at the time of the action (in this case the exchange transaction). Nigeria is a Common Law jurisdiction, and the guiding principle for establishing criminality is captured in the Latin phrase: Actus non facit reum nisi mens sit rea (meaning “the act does not make a person guilty unless the mind is also guilty”).
On the other hand, solicitation of bribery is a criminal act. In this instance, the motive for engaging in the criminal conduct of solicitation is very clear and strong. The scale of the subsidy fraud and the public relations fallout present the beneficiaries of the scheme sufficient incentive and clear motive to want to scuttle the investigation or, failing to do so, to undermine its report by raising questions about credibility.
Furthermore, Otedola’s version of the facts seriously suggests that a credible defense of entrapment will likely be available to Lawan. Entrapment exists when it can be established that law enforcement or other officials originated the idea of the crime and induced the accused to engage in it.
Being a private person, Otedola’s actions ordinarily should not connect the government. But his collaboration with law enforcement in marking the currency and recording the transaction implicates entrapment.
All that said, what should bother everyone at this point is the prevalence and magnitude of corruption that has consumed the entire Nigerian system. No single sector or level of government appears to be
immune. And the audacity and absence of fear with which public funds are diverted to private ends is worse than alarming. Until we have a leader that recognizes this cancer for what it is and has the courage to do the much needed pervasive surgery, Nigeria is headed no where.
In this regard, President Goodluck Jonathan has not established that he is an improvement over his predecessors. •Okorie, attorney and international business consultant, has served as a columnist and editorial board member of USAfrica multimedia networks, Houston, since 1994.
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