Why Kalu’s prison sentence falls short
WHEN it comes to big fishes, they do not come any bigger than the former Abia State Governor (19992007), a former presidential candidate (2007), now, Senator of the Federal Republic of Nigeria, Orji Uzor Kalu, sentenced to 12 years’ imprisonment at the Federal High Court sitting in Lagos last week for stealing over N7bn ($19.6m) from the state variously as a public servant over a period of time.
What makes this even more interesting to the rest of the world, is that Kalu currently serves as one of the principal officers (Chief Whip) of the Nigerian Senate, and a member of the ruling All Progressives Congress. News headlines at home and abroad have hailed the sentence as a positive development in the country’s anti-corruption efforts. The more telling message in the sub-headings is clear; first, that President Muhammadu Buhari remains incorruptible and would not impede investigations and exposure of the corrupt elements in his own ranks. Second, that the Economic and Financial Crimes Commission under the leadership of Ibrahim Magu also remains a force to reckon with. By the way, why is Magu still “acting” chairman of EFCC? The President and his party, the APC, control the legislative chambers. What then is holding up his confirmation as the substantive chairman? Anyway, political intrigues aside, the third reason why Kalu’s prison sentence is significant is that it shows that even BIG men do go to prison if found guilty of corruption in Nigeria. Kalu has not only been named and shamed, his fall from grace is also complete. Or, is it?
Spare a thought, first, for the ex-liberian president, Charles Taylor, languishing in a British jail, serving a 50-year sentence for war crimes since 2012. Question: Is plundering and pillaging of state resources on a gargantuan scale not akin to crimes against humanity? How many infants could have been saved from starvation with a fraction of the money Kalu looted? How many poor and destitute pensioners could have been helped in their dying days with a little of the looted funds? How many hospitals, schools, and road infrastructure could have been built with the millions of dollars he was found to have stolen for his own personal greed? Is the level of callous disregard for human suffering not as high as committing war crimes and crimes against humanity? So, why then is Charles Taylor sentenced to 50 years and Kalu only 12 years in jail? It seems obvious that Kalu’s moral culpability is no less than Taylor’s in terms of its brazenness and audacity, and the untold economic and human suffering inflicted on fellow citizens. That is not to talk of the tariff itself, which may end up being slashed on appeal as has been the case in the past.
Far from the pronounced term of imprisonment being upheld, or served, we are likely to see it being reduced to the equivalent of a slap on the wrist for the politician. So much for the prison sentence then.
Pronouncement of prison terms for politicians in Nigeria is chiefly aimed at humiliating and shaming them as a way of deterrence to others. It does not work; it has never worked. In advanced countries of the West, it does work to a large extent. The mere fact of mentioning a politician’s name and a criminal prosecution along the same line is usually enough to see the end of their career, and in some instances, their fame and fortune. Criminal prosecution, conviction and sentencing of a politician in Nigeria, as elsewhere in Africa, do not carry the same opprobrium, and certainly not the same end result. Criminal sentencing has lost its novelty and deterrent value in Africa not because we are immune to shame and indignity, but because we see the criminal justice system as an instrumentality of coercion; for harassment and persecution of dissidents and ‘enemies’ of the state. Remember, the state in Africa remains a highly contested concept; it belongs to no one. African states were artificially drawn up by colonial masters with no regard for the wishes of the inhabitants within those states, some of whom remain at (low level) war with one another to this day. The state is there to be captured and seized by the centrifugal forces of ethnicity, regionalism, and neurotic cliques masquerading as legitimate political parties. Given this debased political environment, criminal sentencing of a politician is simply seen as bad luck for the individual; not something that captures the imagination as necessarily shameful, except in the minds of the prosecutors, our foreign aid donors, and corruption perceptions index compilers. What then can (and should) be done?
This column has long advocated a decisive shift away from criminal jurisdiction to tougher civil remedy options in respect of corrupt public officials in Africa. Such officials, their families and associates should be given judicial recognition as “trustees” of the state properties they come in contact with. This looks simple enough, but it is such an onerous position to put people in. Such law was last used under the British colonial administration in Hong Kong in 1993, where it was held that bribe money accepted by a person in a position of trust, can be traced into any property bought and is held on “constructive trust” for the beneficiary; the state. Apply this to Kalu, it would require him not just to cough up the exact amount he is alleged to have taken from the public purse, but also all incidental benefits accrued from the theft over the years. This would require him to “account” for every property he has ever owned, including the shirt on his back. Failure to account results in instantaneous forfeiture to the state, no need for criminal process. This is rather draconian you might say? Even the UK has not tried to apply the Hong-hong rationale as law in mainland Britain. Yes, but the legal argument for this paradigm shift has been made elsewhere; (Google: money laundering regulation and the African PEP: Case for tougher civil remedy options/tayo Oke). It is strong and compelling.
The “Proceeds of Crime Bill” was passed into law in Nigeria this year, 2019. It was fashioned after the UK’S “Proceeds of Crime Act 2002”, aka, “POCA”. The Nigerian version provides for the establishment of an agency for civil forfeiture. In substance, it is good, but a lot more needs to be done, as it does not offer a proper departure from criminal jurisdiction. Civil forfeiture pre-supposes a predicate (criminal) offence. One follows the other. That state of affairs alone maintains a lingering bottleneck for the prosecuting agencies. The UK authorities recognise this too. That is why they have come up with the “Criminal Finances Act 2017”, which is a substantial amendment to POCA. The Act introduced the newest tool in fighting corruption; the “Unexplained Wealth Order” (“UWO”), which can be used by law enforcement agencies upon an ex parte (without notice) application to the High Court. It means, if you are seen milling around in the UK with huge amounts of stolen wealth from, say, Nigeria, you can be compelled to “explain” the source of your wealth without having committed any offence anywhere. This became law as of 2018. Nigeria has just copied and approved (in 2019), procedures from POCA, passed into the UK law in 2012, but which the UK government has now found deficient in the specific case of corrupt officials from our perspective. We are already lagging behind even before the ink has dried on the bill just passed by the National Assembly here at home. We can and must do better.