Court rejects key evidence in Dasuki’s N33.2bn trial

The Federal Capital Territory (FCT) High Court in Maitama, Abuja, on Friday rejected key exhibits the Economic and Financial Crimes Commission (EFCC) presented to prove its N33.2billion fraud charges against former National Security Adviser (NSA) Sambo Dasuki and his co-defendant.

The rejected exhibits were seven extra-judicial statements attributed to Mr Dasuki’s co-defendant, Aminu Baba-Kusa. The EFCC took the statements when Mr Baba-Kusa was in its custody in 2015.

Trial judge Charles Agbaza rejected the seven extra-judicial statements in a ruling it delivered after nearly eight months of a trial-within-trial that focussed on the admissibility of the statements.

Mr Agbaza ruled that the statements “failed to comply with Sections 15(4) and 17(2) of the Administration of Criminal Justice Act.”

It is unclear yet how crucial the rejected statements are to the prosecution’s case.

The judge ruled that they could not be used in the case because the EFCC failed to provide “credible evidence that the seven statements complied with the provisions of the ACJA.”

Mr Baba-Kusa is a businessman and retired Group Executive Director (GED), Business Development of the Nigerian National Petroleum Corporation (NNPC).

Mr Dasuki and Mr Baba-Kusa are facing a joint trial for alleged diversion of N33.2 billion in arms and security funds entrusted to the NSA office.

The EFCC is prosecuting them alongside Mr Baba-Kusa’s companies, Acacia Holdings Limited and Reliance Referral Hospital Limited, which allegedly received part of the suspicious funds from the Office of the National Security Adviser (ONSA) under Mr Dasuki’s supervision.

The trial has lasted over a decade, suffering spells of setbacks and adjournments that stalled its progress.

EFCC had to re-arraign the defendants in March last year after the case was reassigned to the current trial judge, Mr Agbaza, kicking off afresh after about 10 years of a complicated run.

They denied the charges again, as they previously did before the former judge.

The main trial paused again on 14 January, when the EFCC tried to tender Mr Baba-Kusa’s statements as evidence through its first prosecution witness presented so far in the main trial.

The judge ordered the trial-within-trial to test Mr Baba-Kusa’s claim, and the sub-trial commenced on 24 February.

Details of trial-within-trial

Mr Baba-Kusa’s lawyer objected to the admissibility of the statements on the grounds that they were obtained under duress, prompting the judge to order a trial-within-trial to ascertain the voluntariness of the statements.

The defence argued that a statement made by someone while being held in the underground cell of the EFCC could not be said to have been freely made.

He also said there was no compliance with Section 15(4) and 17 (2) of the ACJA 2015.

The EFCC called three witnesses, all its investigators, during the trial-within-trial who testified about the circumstances surrounding how Mr Baba-Kusa’s statements were taken.

Salihu Kadir said Mr Baba-Kusa voluntarily wrote his extrajudicial statements without any form of coercion.

Mr Kadir said that there was a CCTV camera recording, but he urged the court to note that it was done about 10 years ago and was not mandatory under the law.

On 24 February, Halima Kazeem, an assistant commandant 1 at the EFCC, said he was treated well in custody in 2015.

Similarly, Michael Adariku, an assistant commander 2 at the EFCC, refuted the suggestion of detaining him in an underground cell during investigations in 2015.

When Mr Baba-Kusa, who testified in June as the sole defence witness in the trial-within-trial, confirmed that he wrote the statement and that cautionary words were administered to him before writing them.

Why the court rejected the seven statements

However, on Friday, the judge rejected the statements because there was no audio-visual recording.

He ruled that the “aim of audio-visual recording is for the court to see the circumstances” that took place when the statements were taken, “whether voluntarily,” and not coerced by the prosecution.

EFCC’s lawyer Oluwaleke Atolagbe requested a copy of the ruling to study to decide the prosecution’s next steps, which could be an appeal or restrate

Thereafter, the judge adjourned the case until 13 November.

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Prosecution’s case so far

In the substantive trial, the EFCC has called one prosecution witness, Mr Adarikun, as the first prosecution witness.

Mr Adarikun narrated how N2.2 billion intended for election security was allegedly diverted from the NSA office under the leadership of Mr Dasuki.

So far, he has testified about transfers from the Office of the National Security Adviser’s account, with the approval of Mr Dasuki, to Mr Babba-Kusa, who allegedly used the proceeds to buy properties and foreign currencies in euros and dollars.

The decade-old trial suffered multiple adjournments in its early years, largely due to the State Security Services (SSS) refusing to release Mr Dasuki on bail in defiance of multiple court orders.

Mr Dasuki served as NSA between 2012 and 2015, in the heat of Boko Haram attacks in Nigeria’s North-east, under the administration of then-President Goodluck Jonathan.

The N33.2 billion fraud trial is one of the several cases the EFCC filed in the aftermath of the scandal of alleged diversion of funds meant for procurement of arms to firm up the Nigerian military’s offensive against Boko Haram terrorists between 2014 and 2015.

An audit panel, established by President Muhammadu Buhari following his 2015 election victory, found that approximately $2 billion for arms procurement was unaccounted for. These funds were managed by the NSA, led by Mr Dasuki.

Mr Dasuki is also standing trial alongside former Sokoto State Governor Attahiru Bafarawa, his son Sagir Bafarawa, former Minister of State for Finance Bashir Yuguda, and Dalhatu Investment Limited for N4.6 billion arms procurement fraud.

The charges accused them of diverting N4.6 billion from the NSA office’s account. The money was said to be meant for the procurement of arms to firm up the offensive against Boko Haram terrorists between 2014 and 2015.