Why Kalu’s prison sen­tence falls short

The Punch - - SPORTS - tayo Oke e-mail:[email protected] Feed­back by text? Send SMS of not more than 100 words (not ab­bre­vi­a­tions, please) to 0805592342­9 with your full name and ad­dress.

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.

dr­tay­[email protected]

Newspapers in English

Newspapers from Nigeria

© PressReader. All rights reserved.