Rethinking the Anti-corruption War
President Muhammadu Buhari’s approach to the fight against corruption may have recorded some modest success, it is however becoming clearer that it is unsustainable. This may be a convenient time for the administration to carry out a comprehensive overhau
President Muhammadu Buhari’s approach to the fight against corruption may have recorded some modest success, it is however becoming clearer that it is unsustainable.
Adopting a quick fix approach will not solve the problem in the judiciary. If anything, the president’s approach has further complicated the issue. Presently judges are no longer keen in helping him push his anticorruption fight
Introduction President Muhammadu Buhari rightly, in our view, made the fight against corruption one of the main priorities of his administration. The president is right to do so because Nigerians agreed that corruption remained endemic and has continued to militate against the development of the country.
The United Kingdom based Chatham House, the Royal Institute of International Affairs , in a recent publication titled, ‘Collective Action on Corruption in Nigeria, a Social Norms Approach to Connecting Society and Institutions’ stated that close to $400 billion was stolen from Nigeria’s public accounts from 1960 to 1999 and that between 2015 and 2014 some $182 billion was lost through illicit financial flows from the country.
“This stolen common wealth in effect represents the investment gap in building and equipping modern hospitals to reduce Nigeria’s exceptionally high maternal mortality rates-estimated at two out of every 10 global maternal deaths in 2015, expanding and upgrading an education system that is currently failing millions of children; and procuring vaccinations to prevent regular outbreaks of preventable diseases,” the report added.
In view of this high level of corruption in the country, many cast their votes for Buhari because he promised to be tough on graft. True to his words, the president did not disappoint. Many arrests were made. Prosecution is ongoing in many courts while some have voluntarily returned money they stole. All this reinforced the position of the president.
Approach to Fighting Corruption However, while there is a unanimity of views that the country must fight corruption, opinions begin to differ when the question is how to do it.
Speaking at the Anti-corruption Summit in London in May 2016, the president noted that tackling corruption was not going to be easy. He however made a commitment. He said: “I am not unaware of the challenges of fighting with corruption in a manner consistent with respect for human rights and the rule of law. As a country that came out of prolonged military rule only sixteen years ago, it will clearly take time to change the mentality and psychology of law enforcement officers. I am committed to applying the rule of law and to respecting human rights. I also require our security agencies to do the same.”
At that summit, the president admitted that there were cases where rule of law was brushed aside citing threat to national security and to prevent the individuals involved from escaping from the country.
By and large, the president appeared to favour a quick fix approach and seemed not to have given adequate thought to while past approaches to stop corruption failed. This lack of historical perspective explains the high handedness that had characterised his approach to the fight against corruption including the idea of raiding judges’ houses at night. Those who supported the president’s approach are quick to point to the recovery of huge sums of money as justification. To them, the end justifies the means.
But, others who are more circumspect believe that a military approach, which the president adopted in 1984 when he was the military head of state, would not solve the problem.
Former Chairman of the Governing Council of the National Human Rights Commission, Dr Chidi Odinkalu said: “if 1984 was a tragic first time, 2016 could be the farcical encore. There is never a right way to a wrong thing but there is sometimes a wrong way to do the right thing. When that happens, the damage can be lasting.”
By brushing aside respect for the rule of law, the president is trying to do the right thing in a wrong away. Freedom and liberty of the citizen is not negotiable. Our constitution provides that an accused person remains innocent until his guilt is proved and that a person arrested should be released on bail without delay or be charged to court. The constitution is greater than the office of the president. If the president does not obey the provisions of the constitution, why should he expect Nigerians to so do?
One of Nigeria’s foremost legal luminaries, Chief Afe Babalola, SAN once observed that, “It was not the prison yard created all over by the foreign legal system or the batons and guns wielded by the men in uniform that deterred any citizen from committing evil or crimes but the inherent powerful sanctions of morality and public opinion.”
Although, it is good to fight corruption formally by charging the corrupt to court, that alone would not solve the problem. Just like the Chatham House’s report cited earlier said, “Nigeria’s ongoing anti-corruption efforts must now be reinforced by a systematic understanding of why people engage in or refrain from corrupt activity, and full consideration of the societal factors that may contribute to normalising corrupt behaviour and desensitising citizens to its impacts.”
In other words, there is need for this administration to consider a holistic approach to the fight against corruption. That will be a sustainable way which is more likely to outlive even the present administration.
Accusation of One-sided Corruption War
The president has been accused of going after only people who were not members of his party. While not holding brief for the president, it is understandable that those in opposition party would likely be more affected having just relinquished public offices to the ruling party.
Speaking recently at the ‘Platform Nigeria’ convened by the Covenant Christian Centre in Lagos, the Vice President, Prof. Yemi Osinbajo rejected the allegation that the government was targeting only members of the opposition.
He said: “Well, I don’t agree that the anti- corruption fight is one-sided. What I think is that obviously there was a federal
government that was in place for 16 years and a lot of what you are seeing in terms of prosecution is at the federal level. Obviously the corrupt activities that took place when there was the federal government and the same political party that was in power for 16 years.
“So invariably you are bound to find more persons within that period who may have committed actions that are subjected to one form of trials or the other.”
Not done, the vice president continued: “The other point to note is that if you look at the governors of the states that are being prosecuted, you will find that there are some governors who belong to the ruling party who are also being prosecuted. So it is not one-sided and one thing I want to make clear is that as far as the president is concerned; that is, President Buhari. He is absolutely committed to this fight against corruption and he cannot see the difference between one party and another.
“This is in fairness to him because I discuss with him regularly on these issues. I think he is very, very committed to ensuring that anyone who infringes on the law of the land with respect to corruption will be dealt with. I believe that is the way that we want to carry on.”However, it will be unfair to dismiss the allegation that the anti-corruption war is one sided as baseless. The president for a while found it difficult to accept that members of his own party and those working for him were equally corrupt.
First, the president was reliably informed that some members of his cabinet approached judges seeking to influence the course of justice, but the president turned a deaf ear to the allegation.
Secondly, why was the Secretary to the Government of the Federation, Babachir Lawal not handed to anti-corruption agencies for investigation and prosecution? When did it become the practice to ask an administrative panel to investigate crimes? That amounts to preferential treatment.
The Judiciary as an Impediment
At the beginning of his tenure, the president invited the judiciary to come on board in his fight against corruption. When it appeared that this arm of government did not heed this call, the president expressed frustration.
In his speech at the 55th Annual General Conference of the Nigerian Bar Association held in August 2015, the president said: “Ability to manipulate and frustrate the legal system is the crowning glory of the corrupt and, as may be expected, this has left many legal practitioners and law courts tainted in an ugly way.”
Addressing judges at the 2015 All Nigerian Judges Conference, Buhari said: “While it is undeniable that the judiciary continues to make incremental progress in playing its constitutional role, it is still the consensus of observers that overall levels of judicial service delivery still leaves much to be desired. Urgent reforms therefore, remain imperative in several areas.
“Unfortunately, in recent years, perhaps more than ever before, allegations of judicial corruption have become more strident and frequent. Some of the available surveys on public perception of the judiciary clearly show that the judiciary is losing the trust and esteem of the Nigerian population.
“This is dangerous indeed for our fledgling democracy. Democracy and the fundamental, freedoms and rights and assurances for the protection of private and public rights rely entirely on a judiciary, whose integrity is unimpeachable.
“There is both local and international dissatisfaction with long delays in the trial process. In the past few years, this has become especially so for high-profile cases of corruption, especially where they involve serving or former political office holders. Corruption transfers from public coffers to private pockets, resources required to deliver social and economic justice.
“Government’s attempt to recover such assets in accordance with the law, are often faced with dilatory tactics by lawyers, sometimes with the apparent collusion of judges. These tactics are often not directed at reaching any conclusion or affirming innocence or guilt, but at stalling trials indefinitely, thus denying the state and the accused person the opportunity of a judicial verdict.”
Last year, the president got tired of talking and authorised an overnight raid of the houses of some selected judges. The raid generated heated debates among lawyers and the general public especially on whether the Department of State Security Service has the legal power to investigate judges for corruption. It also brought the judiciary against the executive as the former suspected that the raid was aimed at intimidating the judiciary.
Again, the president was under the impression that it was judicial corruption alone that was responsible for the delay in prosecuting corruption cases. Since the judges houses were raided and few of them charged to court, are corruption cases now being handled faster? The answer of course is no.
Although, few corruption cases might had been hampered by inducement of judges, the truth is that the judiciary has its own problems. Had the president taken a holistic view of the judiciary, he would have discovered that the judiciary needed help not intimidation. Adopting a quick fix approach will not solve the problem in the judiciary. If anything, the president’s approach has further complicated the issue. The generality of the judges are no longer keen in helping him push his anti-corruption fight.
At the beginning, the judiciary appeared not to want to join issues with the president. However, before he retired, the former Chief Justice of Nigeria, Justice Mahmud Mohammed reacted. Speaking at the swearing in of 30 judges appointed for the Federal High Court, the then CJN said: “With each allegation that passes, the need is ever present for the judiciary to address this issue and I feel it necessary to once again do so. I will not hide away from the reality that some judges and judicial staff may be complicit in corrupt practices, however, I must assert that corruption within the judiciary is only imbibed by a minute minority.
“However as the saying goes, he who alleges must prove. This will indeed be done where accusers themselves avail us the particulars of these incidences of judicial corruption as well as the identity of the perpetrators, so that the National Judicial Council can act promptly and appropriately to remove such deviants from the Bench.”
The CJN, had also at a meeting with the Attorney General of the Federation and Minister for Justice, Abubakar Malami, SAN, said lack of political will to prosecute politically exposed persons on the part of the executive was the reason why many politicians charged with corruption had not been convicted.
The number of corruption cases and the amount involved are such that should give the leadership of the country nightmare. A report by Professor Bolaji Owansanoye titled ‘Justice or Impunity’ prepared for Stop Impunity Nigeria Campaign put the total amount allegedly embezzled and in respect of which charges are pending in courts at about N1.3 trillion.
The cases included that of 15 former governors, four former ministers, five former lawmakers, seven former federal public servants, five former state public servants, eight from the banking sector. All these cases are stalled and hope that they will be successfully prosecuted is fading every on daily basis. So, the president is right to complain.
However, it is wrong to assume that the judiciary alone should be blamed for this state of affair. In this wise, the former CJN was right to say that all the blames should not be heaped on the judiciary. In essence, there are enough blames to go around. Clearly, both the executive and the judiciary are blame worthy.
To start with the judiciary, the rules of courts are such that allow cases to remain on trial for many years.
The judiciary must accept full responsibility for refusing to reform itself and allowed itself to be manoeuvred by lawyers. Some judges have been compromised and are not helping matters.
The courts continue to manually record proceedings and waste so much time when courts in other jurisdictions now allow proceedings to be recorded electronically.
The prosecuting agencies which are parts of the executive also have their own share of the blames. Sometimes, it is the prosecutor that asks for criminal cases to be adjourned. They keep on amending charges. The charges against the Senate President, Dr. Bukola Saraki, before the Code of Conduct Tribunal had been amended not less than four times. The prosecutor sometimes was not in court. Yet, the prosecutor is the agent of the executive, but tomorrow the executive will blame the judiciary for delaying the trial.
On several occasions, former National Security Adviser, Sambo Dasuki, was not brought to court for trial. Recently, one of his counsel, who is also a former Attorney General of the Federation accused the government of deliberately frustrating Dasuki’s trial.
The report cited above also found that the Economic and Financial Crimes Commission appeared to be overwhelmed by high incidence of corruption in Nigeria and also had to contend with yearly decrease in its budgetary allocations.
Sometimes, the anti-corruption agencies try to overdo it by filing more than necessary charges.
For instance, EFCC that is struggling to get conviction for a few counts of offence will pile up many counts and will end up not being able to successfully prove any. At times, those with responsibility for prosecuting corruption cases play to the gallery and rush into arresting and filing charges without conducting a thorough investigation. In fact, these agencies start to investigate after the suspects had been arrested.
The trial of a former Bayelsa Governor, Timipre Silva, for alleged corruption was bungled by the prosecution. He had been arraigned with offences that appeared similar before four different judges of the Federal High Court. This is clearly an abuse of the process of the court.
Rather than continue to trade blames, both the executive and the judiciary should carry out a soul searching. The Chief Justice of Nigeria should seek to identify how the judiciary can help the fight against corruption and find ways to reduce the length of time it takes to conclude cases. He should tell judges to strike out cases that are not diligently being prosecuted.
The executive, especially the office of the Attorney General of the Federation, should identify its own shortcomings. After all, it is the duty of the executive to investigate and prosecute.
Anti-corruption agencies should stop playing to the gallery and should arrest suspects only after they have gathered enough evidence to prosecute. Until then, the brickbats between the executive and the judiciary will only continue while those who looted the treasury continue to enjoy their loots.
However, it is wrong to assume that the judiciary alone should be blamed for this state of affair. In this wise, the former CJN was right to say that all the blames should not be heaped on the judiciary. In essence, there are enough blames to go around. Clearly, both the executive and the judiciary are blame worthy