This article by Dr Babajide Martins discusses the renewed controversy, over attempts to obtain and disclose records allegedly connected to an FBI investigation involving President Bola Ahmed Tinubu, GCFR. He maintains that the matter deserves something more than the increasingly emotional political commentary, that has surrounded it
Why allegations, investigations and forfeiture proceedings, should not be confused with criminal conviction.
Introduction
There is a legitimate public interest in transparency, particularly where a matter concerns the person occupying the highest political office in the country. But, there is an equally important need for legal sobriety. Public interest does not mean that every allegation is established fact, nor does a demand for information automatically override the legal protections attached to government records or personal privacy.
The present debate is therefore, best understood as an interplay between the public’s right to know, an individual’s right to privacy, the integrity of law enforcement processes and the demands of constitutional due process.
This distinction is particularly important as Nigeria moves towards another election cycle. Political contests are naturally characterised by intense scrutiny, competing narratives and, sometimes, desperate attempts to gain political advantage. That makes it even more important that constitutionalism and the rule of law do not become casualties of political rhetoric.
FOIA Isn’t an Unqualified Right to Disclosure
The American Freedom of Information Act (FOIA), codified at 5 U.S.C. § 552, is an important instrument of transparency and accountability. It gives members of the public, a statutory right to request existing records held by Federal agencies.
But, that right is not absolute. FOIA itself recognises circumstances in which information may legitimately be withheld. These include information relating to national security, privileged governmental communications, confidential commercial information and, significantly, information whose disclosure would constitute an unwarranted invasion of personal privacy.
There are also specific protections for law enforcement records, where disclosure could interfere with enforcement proceedings, prejudice a person’s right to a fair trial, reveal confidential sources or investigative techniques, or endanger the life or physical safety of an individual. This is not a technicality. It is part of the architecture of the American transparency regime.
The fact that a record exists within a Federal agency does not, therefore, mean that the public has an unqualified right to see every part of it. The source material itself identifies the tension between the public’s right to information and the President’s individual right to privacy, while noting the relevance of FOIA exemptions protecting personal privacy and law-enforcement interests.
An Investigation Isn’t a Conviction
This, in my view, is where much of the public commentary requires greater restraint. An investigation is not a conviction. That is one of the most elementary distinctions, in criminal justice. An investigative agency investigates allegations, suspicions or circumstances that it considers worthy of investigation. The fact that an individual has been investigated does not, without more, establish that the individual committed a crime. Indeed, the entire purpose of a criminal justice system is to distinguish between suspicion and proof. This distinction becomes particularly important, when an alleged FBI record is presented as though its existence could automatically establish that President Tinubu is constitutionally disqualified from contesting or holding office.
Sections 131 and 137 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), establish the qualifications for election to the office of President, and the circumstances that may disqualify a person from contesting. Section 137(1)(d) refers to a person being under a sentence imposed by a competent court or tribunal for specified offences. The important point is that, the Constitution speaks in terms of a sentence imposed by a competent court or tribunal. An alleged investigative report is not a judgement of a court. It is not a conviction. It is not a sentence! It would therefore, require a considerable stretch of constitutional interpretation to transform an alleged investigative record into a constitutional disqualification.
President Tinubu contested the 2023 presidential election and was declared elected. The Supreme Court subsequently, affirmed the outcome. Unless and until the constitutional framework is altered, or a constitutionally recognised ground of disqualification is established, political opponents cannot create an additional disqualification simply by attaching a different legal character to an alleged investigative record. That is not an argument against scrutiny of the President. It is an argument for scrutiny within the law.
What does the Forfeiture Order Establish?
The reported forfeiture of approximately $460,000 has also featured prominently in the debate. Here again, legal precision is necessary. A forfeiture order does not necessarily amount to a criminal conviction. Modern legal systems recognise civil forfeiture regimes under which property can, in appropriate circumstances, be forfeited without a prior criminal conviction.
Nigeria itself provides an instructive example. The Proceeds of Crime (Recovery and Management) Act 2022 provides for the recovery and forfeiture of proceeds of crime, instrumentalities of unlawful activity and certain other categories of property without conviction. Proceedings under the relevant provisions are civil proceedings, with the standard of proof being the balance of probabilities.
The legal implication is important. A civil forfeiture proceeding, and a criminal prosecution are not the same thing. They serve different purposes, apply different procedural rules and, importantly, may operate under different standards of proof. It is therefore, unsafe to move from “there was a forfeiture” to “there was criminal culpability” without examining the precise circumstances, legal basis and findings associated with that forfeiture.
The political narrative may prefer a simple conclusion. The law does not!
“If there’s Nothing to Hide, Why Object?”
One of the most frequently repeated arguments in this controversy is deceptively simple: If the President has nothing to hide, why should he or anyone acting on his behalf object to disclosure?
From the perspective of criminal jurisprudence, that is not a compelling argument. Rights do not become conditional upon a person’s willingness to surrender them. The presumption of innocence does not require an individual under investigation, to assist investigators in building a case against himself. Nor does occupying public office, automatically extinguish a person’s legitimate privacy interests. The burden of establishing criminal wrongdoing, remains on the prosecution. Otherwise, we risk creating a dangerous logic in which an allegation generates a demand for disclosure; refusal to disclose is then treated as evidence of guilt; and that supposed evidence of guilt is used to justify the original demand for disclosure. That is not how due process works. The presumption of innocence, is not a privilege reserved for popular or politically convenient Defendants. It is a fundamental principle of criminal justice.
The President Isn’t Above Scrutiny — But, Neither is he Below the Law
It is important to make the position clear. Being President does not place President Tinubu above scrutiny. Public officials must be accountable. Citizens have every right to ask difficult questions about the background, conduct, decisions and integrity of those who seek or hold public office. But, the converse is equally true. Being President, does not place a person below the protection of the law. The President does not lose all privacy rights, simply because he occupies public office. Nor can an allegation acquire the force of a conviction, merely because it is repeated sufficiently often in political discourse.
The proper approach is therefore, neither to suppress legitimate questions, nor to prejudge their answers. It is to ask the questions, examine the evidence, and allow the law to determine the consequences.
Let the Election be About the Future
There is also a larger political question, that Nigerians ought to consider. The energy being expended on this controversy, should ultimately be measured against the issues that will determine the quality of the next election: economic growth, inflation, unemployment, security, education, healthcare, infrastructure, institutional reform and the overall quality of governance.
Opposition parties have a legitimate responsibility, to interrogate the record of the administration. They should do so vigorously. But, political opposition is strongest when it is anchored on facts and credible evidence, rather than speculation, innuendo or the repeated assertion that an allegation must necessarily be true because it is politically useful.
The President should be held accountable, where accountability is warranted. But, he should also be judged by the same legal standards that protect every citizen.
The Need for a Sober Debate
The FBI-record controversy presents an opportunity for a more mature conversation about constitutionalism, transparency and the limits of political advocacy. There is a legitimate public interest, in knowing what Government agencies know and how public officials have conducted themselves. There is also a legitimate interest in protecting personal privacy, confidential sources, investigative techniques and the integrity of law-enforcement processes. The FOIA recognises both interests. The existence of an alleged investigation, does not establish guilt. A civil forfeiture does not automatically constitute a criminal conviction. And, an investigative record cannot, by political assertion alone, become a constitutional disqualification.
Conclusion
In the final analysis, democracy is not strengthened merely by the volume of allegations made against public officials. It is strengthened by the quality of the evidence, the fairness of the process and the willingness of all sides to submit themselves to the law. The opposition has every right to ask questions. The President has every right to answer them, or to assert the legal protections available to him. And, the public has every right to demand the truth. But, truth in a constitutional democracy must ultimately be established by evidence and law, not by political emotion. That is the standard to which every one government and opposition alike, should be held!
Babajide Martins PHD, former Director of Public Prosecutions, Lagos State; retired Permanent Secretary, Bureau of Public Defender, Lagos State; Head of Criminal Litigation & Prosecution, Adeniji Kazeem & Co.