Whistle Blowing in Nigeria: Of Limited Advantage
Whistle blowing as an adjunct to the current anti- corruption war, should have been a great boost but for the lacuna in the law. In countries with well developed antigraft regimes, whistle blowing has played a pivotal role, which is not likely to be so in Nigeria, unless there is a major amendment to the EFCC Act.
The procedure for prosecuting the corruption war under the present regime has assumed a straight-jacket format of: a. receiving complaints or petitions; b. investigating the petitions by scrutinising public documents to fish out illegal deals; c. arrest suspects; d. trace the proceeds of the illegal deals either to the bank or elsewhere for the purpose of attachment; and
e. prosecution of suspects and if successful, the illegal proceeds are forfeited to the Government.
It is the application of this formal procedure engendered by our adversitorial criminal justice system, that is the bane of the anticorruption war, particularly the onus on the prosecution to establish that the proceeds in question are derived from illegal act(s). This is even when international instruments, for example, the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, 1988, (Art 5 para. 7) enjoins signatory nations to consider reversing the onus of proving the legitimate origin of such proceeds and placing same on the accused, because of the covert nature of the transactions giving birth to the illegal proceeds.
Andrew Yakubu Consciously or unconsciously, the Nigerian Constitution has provided for the reversal of the onus of proof of the legitimate origin of proceeds of illegal acts in the proviso to Section 36(5) which reads thus:
“Provided that nothing in this section shall invalidate any law by
reason only that the law imposes upon any such person the burden of proving particular facts”. With the above constitutional provision, all that is required to accomplish the task, is to insert a provision in the EFCC Act to that effect, otherwise the Andrew
Yakubu’s dollars cannot be legally forfeited to the Government, without proof by the prosecution that the dollars are proceeds of illegal acts. In other words, even though whistle blowing has led to the physical recovery of the dollars, conviction under the current law and procedure is still illusive. Without conviction any attempt to forcibly take the dollars will be illegal.
However, if Andrew Yakubu is to prove that the dollars are proceeds of lawful acts, which the dollars will be forfeited in addition to his conviction and sentence, then the whistle would have sounded a distinct call. This marks the difference between the acquittal of the former Governor of Delta State in Nigeria and his conviction in London.
In making the above suggestion, the writer is not unmindful of the possible argument that criminal legislation do not have retrospective force and therefore reversing the onus of proof now may not affect existing cases. Wherever and whenever such an issue is raised, the writer’s argument would be that nonretrospectivity of criminal legislation attaches to distinct offences with commencement dates, unlike onus of proof. Also, the principle of he who asserts must prove under Evidence Law cannot be invoked against the prosecution in the circumstance, since the reversal of onus of proof is of constitutional force.
Warning to Potential a Whistleblowers Apart from the limitation of whistle blowing under the current anti-corruption regime, it is expedient to sound a note of warning to potential whistle blowers.
This has become necessary because of the prevailing public opinions as to whether whistle blowing should be a permanent feature of the corruption war and how it can be sustained. The writer’s concern here is the range of the protection that avails a potential whistle blower.
Much as the writer knows that as soon as the whistle is blown, the blower runs
under the protection of the State as provided by the law, the level of insecurity in the country may allow mysterious deaths of potential whistle blowers before they would have had the opportunity to put their mouths on the whistle. This is because; desperate corrupt officials are going to embark on an elimination spree of all who played a part in hiding the loot or illegally gotten wealth. It is, therefore, clear that the pre-whistle blowing life of a potential whistle blower is precarious and berserk with uncertainty. This fact calls on the potential whistle blower to be swift in deciding what to do.
Finally, the writer’s position is that whistle blowing can only be a boost to the anticorruption war if the necessary amendment to the EFCC Act is carried out.