By Yunus Ustaz Usman SAN
Corruption
To be able to appreciate the topic, there is the need to remind ourselves what corruption entails, particularly, it is the stealing of the commonwealth by those entrusted to keep it for us, since all existing legislations and methods of fighting the menace have failed, what new methods do we improvise to fight corruption, etc?
The authors of the “The New International Webster’s Comprehensive Dictionary of the English Language” (Encyclopaedic Edition) 7 (column 2) define “Corruption” in these words:-
“Using improperly or injuriously, misuse; vituperative, using wrongly, misapplying.”
Ordinarily, this phrase “Corruption” does not need any dictionary definition. Every Nigerian who was born and experienced the leadership qualities of the politicians of first democracy (i.e between 1960-1966) knows what incorruptibility, which is the exact opposite of corruptibility means. For example, Honourable Justice Mamman Nasir, JSC, PCA, who was the Attorney-General of Northern Nigeria and who took me like his own biological son once told me that after the senseless, selfish or wicked overthrow of the First Republic, Sardauna’s family did not have sufficient money to transport themselves back home in Sokoto. Sardauna’s family and the Ministers’ families had to be transported by financial contributions from their friends and sympathisers. Can that ever be the position in Nigeria in this country again? The answer is, unless by a miracle of God, rhetorically in the negative.
In contradistinction, whoever lived to experience leadership after July 1966 coup-de’tat , knows what corruption is. In other words, while the leaders in the First Republic represented by Sir Ahmadu Bello, Abubakar Tafawa Balewa, Obafemi Awolowo and Nnamdi Azikiwe, were totally incorruptible and were only after the development of Nigeria, most of the latter leaders became rapaciously and irredeemably corrupt, selfish, brute, inhuman, vindictive, tribalistic, religiously, politically and financially destructive to a superlative degree.
One does not need the legal crudity of Lord Denning, the scientific analysis of Isaac Newton, or the literary prowess of William Shakespeare to know that corruption in Nigeria today is the norm rather than an exception.
Lamara Garba (Assistant Chief Strategic Communications Officer, Fiscal Responsibility Commission, Abuja, at page ten of New Nigerian Newspaper of Thursday, 27th October, 2011, said:
“Nigeria’s potentiality of becoming a great nation is never in doubt considering its enormous resources but perhaps due to lack of accountability in the management of this God-given endowment, this country has been stagnated and underdeveloped for several years after its independence.”
It is corruption by Public Office holders that has brought this once great country down to its knees among the comity of nations making it beggarly while still being termed the giant of Africa.
The best graphic description of Nigeria’s economic and developmental history is like this: “It is like a car. The leaders were the drivers. Between July, 1960 – 1966, the drivers put the economic development in top gear with positive results. Between July 1966 to date, except for some few of its leaders such as Murtala Mohammed, the drivers put the developmental gear into reverse; some other few leaders put the gear in a neutral position and continued to press the accelerator pedal with a lot of sound without motion. The car was stationary, stagnated but with all forms of sound and engine smoke and, no motion.”
Corruption has made us wretched, haggard, older than our ages and killed us more than Boko haram bombs. I am fortified in this submission by Mohammed Yunus (a Nobel Prize winner for fighting poverty in Bangladesh) who created the first Micro-Finance Bank when he said in his lecture on “Microfinance Banks in Nigeria” in the year 2010, that:
“Poverty is the fault of the society. The individual is just a victim of the society”.
I submit that from the word go the most irritating form of corruption that has led our country into a bottomless degenerating pit is financial corruption by the leaders. Corruption is using power at your disposal in a wrong manner for an unlawful or illegal purpose, particularly the stealing of public money by the less than 1% of the entire Nigerian population who are the public servants, who are entrusted with public money.
It is not ideal for any leader to give an excuse for corruption, for as Marshall, [1908-1993] (the first black man to sit on the United States of America Supreme Court Bench) said:
“Lawlessness is lawlessness. Corruption is lawlessness. Anarchy is anarchy. Neither race nor colour nor frustration is an excuse for either corruption, lawlessness or anarchy.”
With all the powers and public funds at the unearned disposal of some highly placed government officials, there is the natural tendency for them to be corrupt. George Orwell, in his “Animal Farm” says that “power corrupts, absolute power corrupts absolutely”.
Causes of Corruption
Want of Electing the Upright
The first reason we have corruption by both the Executive and the Legislature is that, in most cases, the wrong people are always voted into power. Nigerians do not value their votes. That is why they are always purchasable merchandise in the arms of the political class. If Nigerians were aware of the value of their votes, they will never cast it for a non-upright person. One single vote can change the entire fortune or misfortune of a nation. For example:-
“In 1875, one vote changed France from a Monarchy to a Republic. In 1923, one vote gave Hitler control of Nazi Party in Germany. In 1945, one vote gave Oliver Cromwell control of England.”
The ransom (called perquisite of office) siphoned by public office holders has made most Nigerians rapacious and election into public offices a do or die affair. How can one reconcile the story credited to the Senate President, Senator Saraki in “The Guardian” Newspaper of June 20, 2015, titled “Saraki visits Obasanjo, Supports Review of Legislators’ Salaries” that:
“On whether his leadership would support a downward review of legislators’ salaries, he stated: “Well, I think already that is in progress. If you remember last time, it was about N150 billion and it is coming down to N120 billion.”
If the legislators alone take N150 billion from the treasury when over 70% Nigerians live below poverty level, then every Nigerian would fight tooth and nail to be a legislator. In every civilised world, legislative business is part-time and they only receive sitting allowances.
Because the executive knows how much money we generate and because it is the sole custodian of this “commonwealth,” any President, Governor, Local Government Chairman or any other head of government parastatal who forgets that he or she will definitely be made to account for every single kobo he/she has stolen from the public coffers before the person can gain paradise, will easily steal our money and abuse his power. It is too difficult to detect theft of money by some government officials and if you are there, you are prevented from breaking the egg. The ruled can only give a weak guess of the amount stolen from the public coffers by watching the exorbitant life style of the rulers and balancing the equation of average earnings and development in the country. But the striking irony of the Nigerian situation is that the more money we generate, the poorer and more miserable most of the citizens become. I am supported in this view by two sources:-
In 2007, ‘The United Nations Human Development Index’ reported that:-
“In 1960, only 20% of Nigerians were poor. In 1970, 30% of Nigerians were poor. In 1980, 40% of Nigerians were poor. In 2007, only 20% of Nigerians can afford to feed themselves and educate their children comfortably.”
It must be remembered that oil has been a major source of revenue from 1970 to date, to the extent that in 1970, General Gowon (the then Nigerian Head of State) was not only paying salaries of unaided, poor African countries, but said in a televised interview that the “Nigerian problem is not money but how to spend it.” Yet, by the principle of Ogive, it can be seen that in the midst of the oil boom, Nigerians who can feed themselves is reduced by 10% every ten years. Following the above tabulation, unless some drastic measures are taken to reverse the trend, it means that in 2017, less than 10% of Nigerian will be able to feed themselves. This 10% can only be public servants whose main source of income is not through production but by their ability to steal the public money entrusted to them. The owners of most of the houses in Maitama, Asokoro and Central Business District today are public servants, particularly Permanent Secretaries and Heads of Extra Ministerial Departments. Because the money used to develop these properties are not from their positions, they neither rent out the houses nor even care to sell them off. They are permanently locked up. That is why I have at many public fora advocated that Nigeria must be a welfare state if the poor ones must survive, as even leaving the running of the country to the businessmen can never solve our problems of being one’s brother’s keeper because as Aston puts it “Business is the ability of being able to rob the other man of his wealth without violence.”
Weneso Orogun in his write-up titled “Bad Economics in High Places” which appeared in “The Leadership” Newspaper of Sunday, February 22, 2014 at page 77, posited in part:-
“Recently, a Minister at¬tributed the weak link between robust real Gross Domestic Prod¬uct (GDP) growth rate with im¬proved welfare for the majority to high population growth rate in the country. The source claimed at the inauguration of the new helmsman of the Na-tional Population Commission, Mr. Eze Iheoma, that Nigeria’s population was growing faster than the economy. Hence Nige¬rians are not feeling the impact of growth.
Even more embarrassing is the explanation that this conclusion derived from a report of a meeting of the Economic Management Team. It speaks volumes that the EMT can be associated with such bad economics in high places. There are many reasons for this.
First, Nigeria’s annual popu¬lation growth rate has never ex¬ceeded 3 percent in the last de-cade while average real GDP growth rate has been about 6.5 percent. Secondly, no econo-mist who is watching the Nigeri¬an economy will agree with what the EMT fed Mr. President
Secondly, economists are gen¬erally in agreement that the real culprit is distribution of income in favour of a few fat cows. This is what has denied Nigeria the ben¬efits of inclusive growth. Indeed,
Economists who have studied available data on inequality in the country agree that inequali¬ty index has remained high and, indeed, worsened. Professor Mike Obadan of the University of Benin recently told LEADERSHIP that high inequali¬ty weakens the impact of growth on poverty reduction. The result is that between 1985 and 2004, inequality in the country wors¬ened, with the index rising from 0.429 in 2004 to 0.45 in 2010. The figure reported in the Fi¬nance Ministry’s response to the 50 questions posed by the law¬makers is 0.49. These place the country among those with the highest inequalities in the world. The high inequality manifests in highly unequal income distribu-tion and differential access to ba¬sic infrastructure, education and training and job opportunities.
Take the example of job vacan¬cies in both the private and public sectors. Both at federal and state levels getting a job now depends on whether or not an applicant can obtain the backing of a senator, a member of the house of represen¬tatives or some highly placed pub-lic official. We often hear about a struggle to get on the governor’s list or the list of commissioners or members of state houses of assem¬bly. Failure to achieve leads to be¬ing screened out.
The story is the same with access to infrastructure such as water, roads and electricity transformers. It has come to a stage that govern¬ment agencies charged with locat¬ing these and similar facilities tend to base location decisions on who will be pleased if the facility is tak¬en to a given community. For ex¬ample, there must be an influential retired military officer or a power-ful traditional ruler in the commu¬nity or one or more of the shakers and movers of society listed earli¬er for the community to qualify for putting a facility in a community.
Economists also drew attention to the sense in which the restrict¬ed drivers of growth in the econo¬my worsen inequalities. For exam-ple, in recent times, the incidence of unemployment in Nigeria has been deep and widespread, cutting across all facets of age groups, ed¬ucational strata and geographical entities. The unemployment rate increased significantly from 13.1 percent in 2001 to 19.7 percent in 2009 and 23.9 and 27.4 percent in 2011 and 2012, respectively
As Nigeria’s growth is driven by primary commodities with low employment intensity, the country continues to suffer from high un-employment, especially youth un¬employment estimated at over 60 percent. The growing sectors pro¬vide few opportunities to absorb the teeming new labour market entrants and those that had lost their jobs through the harsh busi¬ness environment. Besides, in-vestment remains concentrated in the capital intensive extractive oil and gas industry with few em¬ployment opportunities and lim¬ited forward and backward link¬ages to the rest of the economy at the present time. These and simi¬lar considerations hold the key to addressing the challenge of non-inclusive growth, an issue that the government claims to be con¬cerned about.”
I did not study economics, (which was the only social science subject in my life,) beyond GCE level but even at that elementary level, we were taught that you can only measure the growth of a nation by measuring its GDP (Gross Domestic Product) by comparing it with its quantum of production (i.e. are the generality of the citizens living healthier, happier and able to provide themselves with sufficient substance? You do not need to be a notable economist like Professor Aluko to answer this question today. The recent World Bank studies show that more than 70% of Nigerians live below the poverty level. Osinbanjo, SAN, Nigeria’s Vice-President confirmed this recently.
China has a population of almost 2 billion. We have only 160 million. We import food products, including even toothpicks, matches and salt from China.
With the above few remarks, I am sure that you and I are witnesses that corruption is the bane of our development and even existence as a nation.
Now, who are the Law Enforcement agencies? Unarguably, they are the Police Force, the Economic and Financial Crimes Commission (EFCC), ICPC, Road Safety, Nigerian Customs, State Security Service, National Drug Law Enforcement Agency and you agree with me or not, our “political” Military Forces and Ministries of Justice.
The Police
Section 105 of the Constitution establishes the Nigeria Police Force. The entire Chapter VII of the Constitution deals with the Police Force.
In our recent existence, the Nigeria Police are the ones who abuse their power in such a mundanely transparent and unending manner that even a child under the school age can give you the best definition of the word “corruption” in the Nigeria Police Force. It is my own experience of abuse of power by the police that forced me, without regret, into studying law. Abuse of power by the police is so notorious that almost every tribe today has a warning phrase against the Nigeria Police. The Yoruba say “omorere kon sise olopa” (the child of a good father does not join the police).
To that extent, the inscription “Police is your friend” is in practice construed as “The Police is your enemy”. Fortunately, this negative posture of our police against the citizens they are paid to protect hardly happens in civilised countries.
In 2000, I lost my way back to my hotel (Swiss Hotel in London). I was walking in circles around a traffic light. The policemen noticed my circulation. One of them courteously approached me. I told him I had missed my way. He hired a taxi cab, followed me to the hotel and “apologised” for my missing my way. I wanted to pay the taxi fare, he refused saying “I am only doing my duty”. A few hours later, be came to ensure that I was comfortable. When will this ever happen in Nigeria?
Unless you can pay the price, you will always end up as the guilty one if you ever report someone to the Police.
Using the Army, Police, EFCC, ICPC, SSS and other security agencies to settle personal scores as being witnessed in Nigeria also constitute ungodly, inhumanely and absurd crass corruption. And these are happening on a daily basis to the extent that the ruled have become the slaves of the rulers, whom they have voted into the office. The new Inspector-General of Police, Solomon Arase, recently shocked the nation when he said that of all institutions in Nigeria, the Police have the least corrupt officials. As lawyers, your guess is as good as mine on the veracity or otherwise of that self-assessment by the police.
The case of the likes of Tafa Balogun is a telling example of the stinking corruptibility of some topmost policemen and women.
The State Security Services
The State Security Service (SSS), also known as the Department of State Services (DSS), is the primary domestic intelligence agency of Nigeria. It is primarily responsible for intelligence gathering within the country and for the protection of senior government officials, particularly the President and state governors. It is one of three successor organisations to the National Security Organization (NSO), dissolved in 1986. The SSS operates as a department within the presidency and is under the control of the National Security Adviser.
In normal countries, the identity of personnel of such departments such as FBI, CIA, etc is hidden. In Nigeria, it is some of these officials introduce themselves to you. The aim of the introduction is for you to always “play ball”.
EFCC AND ICPC
When our charming President, Olusegun Obasanjo, came to power in 1999, the first thing he did (feigning to fight corruption) was to send an executive bill to the National Assembly to pass the Economic and Financial Crimes Commission (EFCC) and Independent Corrupt Practices Commission (ICPC) Bills into law. This seems to be perhaps pursuant to Chapter II article 5, Section 1 of the United Nations Convention against corruption. This was only to get the support of the Western World (particularly U.S.A.) to support his administration as ready to fight that cankerworm. Events thereafter showed Obasanjo not to be the anti-corruption messiah Nigeria has been praying for. Some of our laws dealing with corruption cases include: EFCC, ICPC, the Penal and Criminal Codes. Sections 13, 15, 16, 17, 19, 20, 21, 22, 23, 24, 25, 26, 27, 30, and 33 of the EFCC Act, Cap. E1 Laws of the Federal Republic of Nigeria 2002 Code of Conduct Bureau Sections 5, 6, 7, 10, 11, 12, 13 and 15, Code of Conduct Bureau and Tribunal Act; Fiscal Responsibility Act, 2007 (Sections 11, 42, 45 and 48) 2002, articles 10, 15, 16, 17 & 18, United Nations Convention against corruption (article 8, Section 5); and African Union Convention on Prevention and Combating Corruption. (Nigeria is a signatory to both Conventions) are the only Sections dealing with current type of offences bordering on corruption and the punishments therefor.
Economic and Financial Crimes Commission (EFCC)
This department is created by the EFCC Act of 2000 enacted during the Obasanjo administration who wanted the America and Britain in particular to think that he was going to fight corruption in Nigeria and to therefore support his government. He therefore appointed Nuhu Ribadu (a lawyer). But unfortunately, Ribadu became the personal sniffdog, always sent only against Obasanjo’s political enemies and accusers. That is the danger of an erstwhile honest person accepting government appointment. You are most likely going to lose your incorruptible identity.
The main problem with EFCC is that because of the doctrine of “he who pays the piper dictates the tune”, it hardly prosecuted any corrupt person who is a friend of the government of the day. It is this selective persecution that has destroyed peoples’ confidence in EFCC. Another discredit is the allegations of corruption among some of the officials of this organisation which is supposed to curb corruption. So, where do we go from here?
However, there seems to be some appreciable change under Lamorde. But he has to do more.
Independent Corrupt Practices Commission
This agency was created under the Corrupt Practices and other Related Offences Act, 2000.
Just like EFCC, it was also created by the Obasanjo administration just to feign to the external world that he came to fight corruption. However, because perhaps, unlike EFCC, ICPC heads have been those with incorruptible records such as Honourable Justice Akanbi, etc, the executive has not been able to misuse the ICPC as it has been misusing EFCC. And, of course, the result is that no serious cases are sent to ICPC for investigation to the extent that ordinary people wonder if it still exists.
The provisions of the Independent Corrupt Practices Commission, even though couched in similar vein, are mildest and only deal with corruption cases in respect of civil servants. The punishments for corruption offences under the Criminal Code and the Criminal Procedure Code are too mild to curb our present type of colossal corruption. Under Section 406 of the Criminal Code dealing with official corruption, the maximum punishment therefor is 3 years imprisonment. The Section states:
“Any person who, with intent to steal anything, demands it from any person with threats of any injury or detriment of any kind to be caused to him, either by the offender or by any other person, if the demand is not complied with, is guilty of a felony, and is liable to imprisonment for three years.”
Chapter X (Sections 115 – 121) of the Penal Code Laws of Northern Nigeria deals with corruption or offences relating to public servants. The highest punishment under that Chapter is 14 years imprisonment. Thus, Section 115 of the Penal Code Law provides:
“Offences by or Relating to Public Servants
Whoever being or expecting to be a public servant accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification whatever whether pecuniary or otherwise, other than lawful remuneration, as a motive or reward-
a. for doing or forbearing to do any official act; or
b. for doing or forbearing to show in the exercise of his official for showing or forbearing to show in the exercise of his official functions favour or disfavor to any person; or
c. for rendering or attempting to render any service or disservice to any person with any department of the public service or with any public servant as such, Shall be punished –
i. with imprisonment for a term which may extend to seven years or with fine or with both;
ii. if such public servant is a public servant in the service of the Government of Northern Nigeria or of the Government of the Federation acting in a judicial capacity or carrying out the duties of a police officer, with imprisonment for a term which may extend to fourteen years or with fine or with both.”
Combining the Office of the Attorney-General and that OF Minister of Justice in one Person
Section 150 of the 1999 Constitution establishes the office of the Attorney-General. It provides:
“There shall be an attorney-general of the Federation who shall be the Chief Law Officer of the Federation and a Minister of the Government of the Federation”.
I submit that as long as the two offices are fused together, as long as it is either the President or the Governor who appoints and removes the Attorney-General, their legal opinions will continue to have political coloration because as the saying goes, ‘he who pays the piper dictates the tune’. Nigerians are not happy with coloration of legal opinions and interpretations we are getting from our Attorneys-General today.
The office of the Attorney-General and Minister of Justice has never been given to the same individual in any civilised country. Not even in Britain where there is no Presidential system of government. The National Assembly must remove the office of the Attorney-General from that of the Minister of Justice. He should never be removed by the President without a resolution of 3/4 of the entire membership of the National Assembly at a joint session called for that purpose. His removal procedure must be the same as that of the President. His salaries and allowances must be charged to the consolidated Revenue Fund. His salaries and allowances must be paid directly to that office. He must have full financial autonomy. Only then can we have an Attorney-General qua Attorney-General who is ready to act as a real lawyer that he is trained to be in the discharge of his duties. He must never belong to any political party. Any other thing will not do. Cedit questio.
This much has been captured in the last minute constitutional amendment of the 7th Session of the National Assembly. It is only hoped the amendments see the light of day.
The Armed Forces of the Federation
These are creations of the 1999 Constitution. See Sections 217-220 of the Constitution
Do not ask if these are really Law Enforcement agencies. They are to defend Nigeria and have their own agencies i.e. Military Police, Air Police, and Naval Police Units. If a General does not want Boko Haram to end because of the daily budget of millions of naira, that is not only corruption but corrupt money soaked in blood. There is really no way Boko Haram would have lingered on so long if the military is not corrupt or has not been corrupted!
I am a realist. I am not an alarmist. I am fortified in this view by Chantal Uwimana, a Regional Director for Sub-Saharan Africa for Transparency International and Leah Wawro, an Advocacy and Communications Lead for Transparency International UK Defence and Security reported in Sahara Reporters on the internet on 13/6/2015 at 4:21pm that:-
“The brutal bombing that killed at least 13 people watching the World Cup in Northeast Nigeria is yet another reminder of the country’s instability, and the government’s ineffective response to insurgents, most notably Boko Haram. What can they do to prevent this violence and save their citizens’ lives? Fight corruption.
The links between corruption and instability are rightly gaining increased attention. In Nigeria, allegations have surfaced that senior officers have been bribed to turn a blind eye to Boko Haram. The problem is not limited to Nigeria as recent crises have laid bare: there are allegations that bribery allowed terrorists to enter Westgate mall in Kenya, for example, and that the Iraqi Army crumbled in front of ISIS because they were so hollowed out by corruption.
In too many places the public no longer trusts the security and defence forces that are supposed to protect them. They have good reason. The 2013 Transparency International UK Government Defence Anti-Corruption Index, a global study of corruption risk levels in national defence establishments, detailed the many areas where corruption risks are high in Nigeria and analysed the consequences.
The research showed that lethally armed criminal networks, operating with the tacit support of local and foreign business mafias, and chaperoned by powerful military “Godfathers,” illegally siphon off about US1 billion each year in petroleum.
There have also been a number of scandals surrounding so-called ‘security votes’, which allow politicians to appropriate millions of dollars behind closed doors simply by evoking ‘national security’. As a result, funds that are meant to buy equipment and even pay salaries go missing, leaving the military badly equipped and demoralised…”
National Drug Law Enforcement Agency
The establishment of the National Drug Law Enforcement Agency (NDLEA) by the promulgation of Decree Number 48 of 1989, now Act of Parliament, was aimed at exterminating illicit drug trafficking and consumption in the Nigerian society. It is a well-known fact that any involvement in drugs, especially their importation, exportation, sale, transfer, purchase, cultivation, manufacture, extraction and possession is universally unacceptable. I must emphasise at this point that “drug” in this context should not be confused with the common usage of the word by Nigerians, where all forms of pharmaceutical poisons or medicaments (either with or without prescription of a medical personnel) are loosely referred to as drugs. Drugs in this context means narcotics, such as heroin, cocaine, cannabis (Indian hemp or Igbo), etc, and may also include prescription-only psychotherapy medicaments like tramadol, which unfortunately is now widely abused by young persons. This abuse has also extended to cough syrups containing codeine, etc.
The establishment of the NDLEA was Nigeria’s deliberate attempt at joining the rest of the world in getting rid of this cankerworm within her borders.
Though the Act does not endorse Capital Punishment, as did Decree No 20 of 1984, it however, aims at rendering offenders financially incapacitated apart from the long period of incarceration ranging from 15 to 25 years and sometimes, life imprisonment for producers and traffickers. Additionally, any organisation that colludes with offenders to perpetrate a drug offence or to conceal proceeds from the illicit drug trade is also liable on conviction to a term of 25 years imprisonment or two million Naira fine.
Other measures adopted in dealing with the drug scourge are contained in National Drug Law Enforcement (Amendment) Decree No 33 of 1990 which prescribes a jail term of five years for persons caught abroad for trafficking in drugs through Nigeria and by so doing bring the name of our great nation into disrepute.
Board of Customs AND Exercise Duty
Because of the financial corruption in this sector, most young Nigerians would always ask you “help me get employed into the Customs” rather than say “help me get employment”. Every legislator at the Federal level would prefer to be on the supervisory Committees on Customs and Exercise, Petroleum Resources, NNPC rather than judiciary. The list is endless.
Developing New Mechanism in the Fight Against Corruption
The question is this: why are we seeking new ways to fight corruption? The answer is rhetorically simple: because all the known or old ways of fighting corruption in Nigeria have defied solution, our old ways have irredeemably failed to properly detect and to adequately punish corrupt officials because, inter alia, some of these agencies are in themselves hiders and promoters of corruption which they were set up to exterminate. Cedit questio.
Solution
The Nigerian Mind.
The most important step in fighting the endemic corruption in Nigeria (be it in officialdom or in private,) rests mainly on Nigerians. There is the urgent need for Nigerians to re-engineer their perceptions of the concept of corruption.
Deeply engraved in our psyche and sub-consciousness as a people, is the penchant or inclination to celebrate persons who acquire wealth through means known by all to be questionable. Ours is a society where unabashed theft is honoured. We almost deify persons known openly to have gone into public office owning almost nothing but coming out at the end of his tenure with stupendous riches. These are the kind of persons we celebrate with titles, honourary doctorate degrees and unmerited praise. In contrast, Nigerians will scorn and deride the honesty, and dignity of the sincere public servant. That is why it is common to hear Nigerians say “after four years, wetin him carry come.” Invariably, your community looks at you with disrespect if you do not pilfer from government or as Nigerians will say it, “carry your own share of the national cake.”
We must also appreciate as Nigerians that corruption is not limited to when you steal government properties. If you own a filling station for example, and your meter is adjusted in such a way as one liter is only 75cl, while you yet sell your product above government stipulated price, you are corrupt! A person who sells a product to a customer knowing it to be unfit for the purpose for which it is purchased, is corrupt! That is not smartness.
The first duty to fighting corruption in Nigeria, therefore rests primarily on the Nigerian, before all else.
Amend our Existing Laws
I submit that there is the urgent need to amend both the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices Commission (ICPC) Acts to make the punishments realistic to be able to take us out of the bottomless pit poverty and international disgrace corruption from public servants has put this country in. The position today is all a pretentious fight against corruption because, the real big public officers who steal billions of our wealth are never brought to book. Our law enforcement agencies are only ready and eager to arrest the weak ones who cannot bribe their ways in billions of naira. Our EFCC and ICPC investigations make the laws to be what Francis Bacon describes as-
“Laws are like cobwebs, strong enough to catch the weak, but too weak to catch the strong”.
Unless Presidents, Governors, Permanent Secretaries and Ministers are arrested and convicted with adequate punishments, no government in Nigeria can convince the ordinary Nigerian that the government is serious in fighting corruption. As stated by Buchi Okoli, in his article “Declaration of Assets and Liabilities by Public Officers” at page 27 of “Leadership Newspaper” of Friday, May 18, 2012,
“Corruption in public office has it’s roots in fraudulent declaration of assets and the seeming docility of the Code of Conduct Bureau”.
So far, what we have been having is selective prosecution of only the insignificant few who have fallen out with either the President or political party of the particular time. Hence, Ribadu, a lawyer in his own right, was used by Obasanjo as the latter’s sniff dog who only persecuted Obasanjo’s political enemies. It is a shame of a nation. Nigerians were called upon in 2010 to elect Ribadu as their President.
Section 308 OF THE Constitution of the Federal Republic OF Nigeria, 1999 (As Amended).
This is called the Immunity Clause. It prohibits the prosecution of the President, Vice-President, the Governors and their Deputies from both civil and criminal prosecutions while in office. The Section provides:
“308. (1) Notwithstanding anything to the contrary in this Constitution, but subject to subsection (2) of this section –
(a) no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office;
(b) a person to whom this section applies shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and
(c) no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued:
Provided that in ascertaining whether any period of limitation has expired for the purposes of any proceedings against a person to whom this section applies, no account shall be taken of his period of office.
(2) The provisions of subsection (1) of this section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party.
(3) This section applies to a person holding the office of President or Vice-President, Governor or Deputy Governor; and the reference in this section to “period of office” is a reference to the period during which the person holding such office is required to perform the functions of the office.”
The rationale behind this provision has been succinctly put by Eso, J.S.C, who, unquestionably remains one of the most intelligent, most honest and most pragmatic jurists of our time in the case of OBI v MBAKWE (1984) 15 NSCC 139 @ 140 where he held that:
“I think the purpose of Section 267 (now Section 308) of the 1999 Constitution is clear. It is to prevent the Governor from being diverted of his attention in the performance of his executive functions by fear of civil or criminal litigation during his tenure in office”.
The worst aspect of this provision is that it allows the occupiers of those offices to use the provision both as a shield and at the same time, as a sword. That is to say, while the occupier cannot be prosecuted while in office, he can prosecute or sue anyone who does any wrong to him/her. Even the American Presidential system upon which ours is modelled does not contain immunity clause. The negative ingenuity of our political class is that they copy any foreign provision that does not even accord with our own conscience and culture, but throw away any foreign law or system that may be an impediment to our freedom to loot and cheat while in public office. Our courts will be acting contrary to the letters of the Section of the Constitution if they construe it that the President or Governor can be sued while in office. That will amount to the judges legislating which they have no jurisdiction to do. The attempt to repeal this by the Constitutional amendment was thwarted when the president refused to give his assent to the amendment of the Constitution. One hopes that the assent will be given by the present President.
Burden of Proof
The present burden of proof in an accusatorial system such as our today is that in criminal trials, the burden of proving that the accused committed the offence is always on the prosecution and the prosecution alone. We were taught in the university that it never shifts (WOOLINGTON v. D.P.P.).
But must we continue to sheepishly adopt this in our quest to fight the unsolvable problem to corruption in high public offices, even when continuing to do so has the culminating effect of permanently devouring our existence as a nation? I think not.
These officials have so clearly hidden traces of their involvement in the loot of public treasuries that it is almost impossible to get evidence with which to prosecute them. Only they have the knowledge of what they did and where the evidence is. In such a case, the judge can fall back on the provisions of Section 143 of the Evidence Act, which provides:-
“When any fact is specifically within the knowledge of any person, the burden of proving that fact is on him”.
However, subsection (5) and (ii) of Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is a clear impediment to the Shifting of the burden of proof on the person accused of committing the offence of corruption. The subsection (5) provides:-
“(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty“.
(ii) No person who is tried for a criminal offence shall be compelled to give evidence at his trial”.
The National Assembly should urgently be called upon to amend this subsection by inserting a provision to the effect that:
”provided that in cases of official corruption, the burden of proving his innocence shall lie on the accused which shall be discharged upon a preponderance of evidence”.
How can Nigerians be asked to gullibly presume a public servant who lives far above his salaries and allowances as innocent of the offence of corruption? The law should not be an uncontrollable ass.
Plea Bargaining.
(Settlement OF Criminal Cases with the Government)
This has made nonsense of our criminal system and desire to curb corruption. The public view today is that it is another extended arm of corruption to allow the highest bidder off the hook of the law.
There is no single provision in our Constitution or the Penal laws allowing this new public menace, which practice has eroded public confidence in our public prosecution. The telling unfortunate cases include those of Halliburton Petroleum bribery scandal involving multi-nationals. While we settled with them upon payment of peanuts, America and Britain have tried, convicted and sentenced their own nationals involved in the scandal for the same offence. The sentence given to Mrs. Ibru of the famous Oceanic Bank leaves one gasping for breath.
Plea bargaining does not allow the criminal to go scot free, unlike what happened in Halliburton’s scandal. America still gave Abdulmutallab the maximum (life) sentence even though it was plea bargained because of the seriousness of the offence. America used it because it is provided for under Section 11(e) of America’s Federal Rules of Criminal Procedure. We do not have that provision in our Constitution.
Nigerians, on the internet I have read, construe its application today as a step in furthering corruption and wide sharing of the loot by those officials who could not benefit from the original sharing of the proceeds of corruption.
I was of the opinion that a judge must never, as he is not bound to, accept plea bargaining where he sees that the offence is one of those that is likely to cripple the entire society. I am fortified in this view by the learned authors of “Blacks Law Dictionary” (6th edition) at page 1152 where they submitted that:
“Plea bargaining – The process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory deposition of the case subject to court approval. It usually involves the defendant’s pleading to a lesser offence or to only one or some of the counts of a multi-count indictment for a return for a lighter sentence than that possible for the graver charge. Plea bargaining procedures in the federal courts are governed by Fed.R.Crim.”
Today, however, after a review of my earlier stand and interaction with a lot of people who are more intelligent and more analytical than me, I have come to the logical conclusion that the society will stand to benefit more by it if it is done in such a way to ensure that at least over 80% of the looted funds are returned to the public treasury while the sentence is only reduced. This is because the person who has looted billions of naira can always thwart his prosecution or at times even his conviction.
Another noticeable area of corruption by the legislature is confiscation of constituency project allowances, which run into multi millions of naira yearly. No one can tell me that he has ever seen such ocular projects anywhere in Nigeria today. There has always been incursion of the legislature into purely executive functions. What legislative business has the legislature in asking the Executive to remove a Minister who disagrees with them? None.
It is imperative for each arm of the government to be a check on the other but definitely not to be an incursion into the areas of the other. Fixing of huge allowances for themselves is also an abuse of power by the legislature.
It must be noticed however, that without a vigilant legislature, Obasanjo would have created a third term for himself, a former Director-General of BPE who paid N4.2 billion of the Eleme Petrol Chemical into a private account without the consent of the National Council of Privatisation would not have been sacked.
Life-Sentence Punishment For Corrupt Law Enforcement Officials
There should be a legislation not only giving a corrupt law enforcement agent double the punishment of the office if committed by others, but make theirs a life sentence.
Moral Teachings
Public officers in custody of public funds must know that no one can dodge the Law of Karma. In my own religion, if you steal public money, unless everybody in that country or state forgives you, you cannot go to paradise.
I submit that it is only after the above suggestions are substantially implemented that one can really talk about the role of law enforcement agencies.
The Role of Law Enforcement Agencies
1. They must act as prosecutors and not persecutors or those to be used by the power that be to settle personal scores.
2. They must be nationalistic and patriotic. It is only then they can withstand temptations of bribery by the corrupt public office holders.
3. They must be scientific in their investigations. Most of the confessions are forced confessions. Our law enforcement agencies torture accused person and force them to write the words they want them to.
4. The Attorneys-General must establish offices of District Attorneys in every police station, EFCC, ICPC, etc and even at other law enforcement agencies.
5. They must fear only GOD not their employer. Give your boss candid advice even if it is at the expense of your job. Do not accept to prosecute where your investigations show that you have a weak case.
Conclusion
Unless the Law Enforcement Agencies find some new ways of fighting corruption and unless there are supervisory agencies supervising these law enforcement agencies, corruption can never be exterminated from Nigeria until it exterminates Nigeria as a nation. Niyi Osundare, in his paper delivered at a lecture titled ‘Corruption-State of the Nation’, convened by Osundare of ‘Save Nigeria Group’ on Monday, 9th July, 2012, has this to say:
“If Nigeria does not kill corruption, corruption will kill Nigeria.”
Nigerians ought to be vigilant and cry out against any form of corruption because the leaders are supposed to be the servants of the citizens and not their manor lords. The ruled in Nigeria are too foolishly patient and tolerant of mis-governance.
Being the Keynote Address delivered at the Nigerian Bar Association Anti-Corruption Commission Conference by Yunus Ustaz Usman SAN
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