War against corruption: Role of judiciary, state and society by Magnus Onyibe

I would like to commence this intervention with the very cryptic statement by president muhamadu Buhari at the opening ceremony of the 55th Annual General Conference of the Nigerian Bar Association, NBA on August 21,2015 where mr president urged the judiciary to support his war against corruption while noting that , “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.”

Mr president then added that “ln a gathering such as this, l do not need to elaborate on the way that corruption and impunity have damaged our economy. But l would like to say more on what, l believe, should be your role as legal practitioners , in helping us back to the path of rectitude”.

President Buhari who was represented by Vice President Yemi Osinbajo concluded by saying that ” allegations of judicial corruption have become more strident and frequent”.

Perhaps, embarrassed  by the attack on the judiciary, the Chief Justice of Nigeria,CJN Mahmud Mohamed vowed that going forward, the National Judicial  Council, NJC would take strong disciplinary actions against judges indicted for issuing frivolous stay of proceeding orders on any criminal matters before them.

He reminded judges that the essence of the newly enacted Administration of Criminal Justice Act, ACJA, 2015 was to prevent chances of accused persons taking undue advantage of interlocutory applications to frustrate their trial and ordered day-to-day trials of corruption cases.

Remarkably, the CJN did not just decide to do ‘house keeping’ in the judiciary without reminding the executive arm of Govt accusing it of not being committed enough to the war against corruption that,  ” There is need for seasoned prosecutors to prepare and file charges before courts of competent jurisdiction so that criminal matters could be timeously determined”. Continuing, the CJN pointed out that the “Quality of prosecutions must be improved upon, the quality of prosecutions presented in courts by our prosecutorial agencies must be improved upon, as they are sometimes of a standard that will never found a conviction on any court anywhere, yet, a well prepared prosecution can see to the determination of criminal matter within a month”.

The positive fall out of the latter part of the CJN’s policy statement above ,seem to be the guiding principle and kernel of justice Olukayode Adeniyi of Federal High Court, Abuja’s decision on Thursday 21 July in granting bail to Abiodun Agbele, an associate of embattled Ekiti state governor, Ayo Fayose who was arrested and detained since last June 27 by the EFCC, beyond the constitutionally stipulated period of detention,without trial as provided in the 1999 constitution of Nigeria.

In giving his verdict, Justice Adeniyi advised the EFCC to conduct their preliminary investigations thoroughly before arresting suspects to avoid the situation whereby corruption suspects are easily released in court due to improper arraignment.Such professional decisions based on respect for rule of law may be deemed by hawks in the executive arm of Govt as lack of commitment to the anti corruption war by the judiciary which president Buhari might have been alluding to when he unbraided the judiciary in his recent speech to the body of benchers.

To serve as deterrent against prosecutors unpreparedness in future, judge Adeniyi awarded N5m cost against the EFCC and if the immediate reaction of the anti graft agency to the judgement is any thing to go by, the judge’s action is like pouring salt on an injury, hence the EFCC referred to the verdict as ‘shocking’ and signified intention to appeal against the decision and also seek stay of execution.

The CJN and judge Olukayode Adeniyi are not alone in observing that anti graft agencies in Nigeria are sloppy in prosecution.
Femi Falana, acclaimed human rights lawyer also in a piece in Thisday newspaper commemorating one year anniversary of the present administration on May 29th, 2016, pointed out the abysmal no of convictions against suspects so far secured by the EFCC.

Although the boss of the indicted anti corruption agency, Ibrahim Magu has denied the low conviction rate of corrupt public officials as alleged by Falana who backed his claim with statistics, Justice Adeniyi’s verdict will certainly serve as a wake up call for the EFCC. The anti crime agency must shake off the notion that seem to feed the belief that it has the mindset that since the courts are another arm of the establishment who should also be sucked into the a to corruption war, suspects should be adjudged guilty as charged, without going through the rigorous process of proof of being guilty or otherwise remain innocent.

If the onus of proof which in principle  is on the prosecutor is not observed, it would definitely be a negation of the basic principles of justice and it’s administration.

Admittedly,the conventional wisdom is that the law is an Ass, but the legal process was deliberately made long and tedious, so that the innocent is not unjustly imperiled on the alter of haste.

As mr Magu already recognizes, and so that l may not be seen as belittling the very tough  job of anti graft agencies, l acknowledge that being the head of EFCC is stressful, but somebody has got to do the job and that person must fulfill all righteousness of safeguarding the rules of of law and order for the sake of posterity and sustainability of the system.

Even in far away United Kingdom, U.K, a judge on Thursday July 21 awarded Bhadresh Gohil, lawyer to former Delta state governor,James lbori £20,000.00 for illegal deprivation of his Liberty for 33 days from Nov 20 to Dec 22 by the Crown Prosecution Service, CPS.

Presently, Scotland Yard, police headquarters is also on trial  as one of its officers is facing corruption charges based on accusation by Gohil that in the course of investigating lbori, a  police detective  compromised the service.

If the panel set up to review the case concludes that there was indeed a bonafide case of corruption and there were  substantial instances of cover up of facts by the police and crown prosecution service in order to secure conviction against lbori , it could lead to overturning the conviction against Ibori, his attorney, Gohil and family members who have served between 5-10 years jail terms each and of which lbori himself is at the tail end of thirteen (13) years of incarceration.

Can the EFCC or the courts in Nigeria probe their own or reverse their judgement? A billion Naira question!

But that’s the way criminal justice system should function,not just for the purpose of Govt having its way all the time, but also in the interest of justice and equity, plus sensitivity to the rights of individuals in the society. Any thing less than that, would amount to tyranny of govt, a democracy low that l hope Nigeria would not descend.

Expressing similar sentiments to that  of establishment people , especially operatives in anti graft agencies such as EFCC, ICPC and CCB, who allegedly fail to carry out thorough investigations of suspects before clamping them in detention, more often than not for mob justice, one Bayo Oluwasanmi wrote an interesting opinion piece titled “Corruption of Mass Destruction” which was widely published online .

In that article mr Oluwasanmi bemoaned the odious magnitude of corruption in Nigeria and then dished out a catalogue of news headlines in local and international media,heralding the shape and dimension of stealing of public funds in Nigeria.

Here is a snippet:

“Nigeria orders arrest of official accused of stealing $2b meant to buy weapons to fight Boko haram (fox News World, Nov. 17, 2015). “7 Nigerian Ex-Governors, Other Public Thieves, To Lose Billions Smuggled To Dubai” (The Simon Ateba News, March 22, 2016). “N23bn Diezani Bribe: 11 INEC Officials Admit Receiving N120m” (SaharaReporters, May 28, 2016). “EFCC Releases CEOs Of Access bank, Sterling Bank After They Refund Billions Of Naira” (SaharaReporters,May 07, 2016). “ABACHA LOOT: Switzerland returns $723m to Nigeria in 10 years” (Vanguard, March 16, 2016). “Fayose Admits To Buying Properties Of N1.35 Billion” (SaharaReporters, July 07, 2016). “Former PDP Secretary Olisa Metuh Has Offered To Return N400m He Received From Ex-NSA Dasuki” (SaharaReporters, June 30, 2016). “Former Air Staff Chief Amosun And Other Top Military Officials Arraigned For N49 Billion Fraud” (SaharaReporters, June 29)”.

The sensational headlines and humongous sums of money that are purportedly stolen as portrayed in the headlines is obviously the source of enragement of for the author of the article , but the curious thing about what seems like genuine concern of mr Oluwasanmi  is that while his intervention is long on actions to be taken against the suspects,nothing is proposed on how to prevent the despicable act of corruption.This is against the universal dictum, PREVENTION IS BETTER THAN CURE.

According to the highly incensed anti corruption crusader, ” We want speedy resolutions to the trials.Since the General’s against corruption are not disposed to go for death by firing squads for the thieves, then the punishment should be punitive enough in terms of number of prison years ranging from 100 to 150 years so much that the criminals will prefer the death penalty. The thieves should be stripped naked of all ill gotten properties, businesses, cash and vehicles, anything and everything. That should the minimum punishment. They deserve no less”.

My take away from this very harsh stance is that, some commentators like to play to the gallery, sometimes for the heck of it and often, to satisfy the feel good syndrome of ‘the rich also cry’ sentiment which is a symbol of the ubiquitous class war or clash between the rich and the poor; those at the top versus those at the lower rung of the ladder.

Worst of all, it is an irony that president Buhari who was roundly criticized for presiding over a administration that sentenced drug dealers to death by firing squad during his first tenure as military head of state in mid 1980s, is now being urged to tow that inglorious path again.

Unfortunately, some establishment people feed on or latch onto such nihilistic sentiments by a tiny minority and erroneously believe that Govt  actions are resonating well with the masses only to discover, sometimes too late, that the seeming encouraging comments are hogwash or mere mirage.

The assertion above is underscored by the fact that tables often turn against authorities, if they can’t hold themselves against the conditions they are subjecting corruption  suspects.

This is the reason the current Govt is being accused wrongly or correctly of applying double standards in its anti corruption war.

Opposition parties are asking, why probe Pdp campaign funds and not APC’s ; why not respect Federal Character Comission, FCC rules on appointments into public offices and why would some serving public officials be accused of violating extant rules, yet they remain in their posts?

All the instances listed above are some of the factors that are making authorities suffer loss of credibility and legitimacy in the war against corruption, more so as govt can’t put itself in the crucible of integrity and emerge from it, squeaky clean.

Harping on the issue of state/govt complicity in the vexed issue of corruption, Chidi Onumah author of the controversial book WE ARE ALL BIAFRANS made interesting revelations about the underlying factors for corruption in an interview in the vanguard newspaper of July 22,2016 when he argued that ” for me (president) Buhari as a person can only do so much-corruption in Nigeria is not as a result of the fact that Nigerians are genetically corrupt”. According to him, “The level of corruption in Nigeria is a result of the structure; this country is more or less corruption.; it can’t but breed corruption”.

Elaborating further, Onumah explains  ” l used the term that Nigeria is corruption and to that extent you look  at the issue of resources that come from the Niger delta; nobody knows exactly how many barrels of oil we get or export everyday or the amount of (illegal) bunkering in that region”. Continuing, he said ” look at the revenue allocation formula in this country, all of it is so improper that it breeds corruption”.

To drive home the belief that Nigeria, in its current nature  is a sort of corruption, Onumah said ” For example, look at the state of Kano; revenue is based on number of local Govt areas, LGAs, we have.

Kano has 44, lagos has 20; lagos has more population than Kano.You begin to wonder is this allocation supposed to be based on the human beings or land mass?” He concluded with the following comment  ” So when l say Nigeria itself is corruption, that’s what l mean and l don’t see (president) Buhari dealing with that unless of course we restructure this country”.

Onumah’s dialectical comments which may be perceived as a diatribe in some quarters and viewed as insightful and commendable in others ,are certainly sufficient food for thought for agitators for restructuring Nigeria.

In 2007, late president  Musa Yar’Adua’s govt rolled into Aso Rock villa on the back of respect for the RULE OF LAW and he magnanimously upheld the principles by allowing all the court cases removing from office, governors from his party, Pdp – Anambra, Edo, Osun  and replacing them with opposition parties candidates , Peter Obi, Anambra; Adams Oshiomhole, Edo and Rauf Aregbesola, Osun until his unfortunate demise in office in 2010.

In 2015, president Buhari was also catapulted into the seat of power in Aso Rock villa on the strength of anti corruption.Mr president whose personal integrity is impeccable as he  has zero tolerance for corruption, is making good his promise to eradicate corruption by leaving every Nigerian in no doubt about his stance as he has adopted the mantra IF NIGERIA DOES NOT KILL CORRUPTION,CORRUPTION WOULD KILL NlGERIA.

However, since one can not under any guise reasonably justify the fight against corruption with injustice, by denying suspects their legal rights of innocence until proven guilty , which amounts to contravention or abuse of rights of the individuals deemed to have violated the laws of the land, president Buhari stands accused of corruption by his critics.

Indefinite detention of Muslim cleric El Zarzakky accused of inciting followers; Sambo Dasuki , former national security adviser,alleged to have converted $2b defense funds into Pdp campaign slush funds; and Nnamdi Kanu, the operator of the illegal pro Biafra radio station, spring to mind.

Their continued incarceration in defiance of court orders for bail is tantamount to undermining Nigerian constitution, as it is an obvious denial of their fundamental human rights, which mr president vowed to respect when he was taking the oath of office.

Keeping the promise of fighting corruption by going after all those who dipped their hands into public treasury are the changes in the polity demonstrate the fact that president Buhari is upholding the vow and respecting the constitution, but it becomes a problem when rules in the constitution are only observed when it suits the whims and caprices of the establishment and ignored, if in conflict with the interests of the authorities.

How can govt be seen to be defying the constitution on one hand when it denies the aforementioned trio their fundamental human rights and goes against all odds to enforce the law against senate president Bukola Saraki and his deputy lke Ekweremadu for allegedly forging the senate’s own internal documents and arraigning them?

To maintain the sanctity and sacredness of the constitution, govt  should not be seen to be picking and  choosing the laws it decides to respect or ignore because in the long run,such actions would amount to the denigration of the constitution which should be revered because it is a sort of holy grail of the nation- second only to the bible if you are a Christian and the Quran, if a Muslim.

Look at the situation in the country of Turkey for instance.
It needs no emphasis that as part of Statecraft , a state of emergency was declared to suspend the constitution before engaging in contrarian actions.This is borne out of respect for, as opposed to disdain for the constitution of that country.

In order to carry out extra ordinary measures in handling the aftermath of the recent failed coup plot, a parliamentarian approval for the declaration of a state of emergency was sought and granted for three months to enable the president, Recep Tayeb Endorgan implement  extra judicial policies to put the troubled country back on even keel of political economic,and social stability .

When the Boko haram insurgents orchestrated atrocities and bedlam in north east Nigeria attained its highest crescendo, former president  Goodluck Jonathan also sought and declared state of emergency in the north east. Ex president Olusegun Obasanjo did same in Ondo and Plateau states when sociopolitical situations in those areas called for such drastic measures.

Even the almighty United States of America , passed a bill to suspend  the anti wire tapping laws in the homeland, when the country was faced with the threat of Al Qaida terrorists after the unfortunate incident of bombing of the twin towers in New York and Pentagon,Washington, DC, in September, 2011.

Establishment of Guantanamo Bay detention camp was another extra ordinary measure taken to side track the constitution by the USA to combat terrorism, so situations may arise that would require bending the rules by taking actions that are not compliant with the constitution , but efforts are made to ensure that it is lawfully done in order to maintain its sanctity.Perhaps the proposed Special Courts to preside over corruption cases now receiving attention in parliament would fill the void, but would a special court to also deal with terrorism related matters be established too?

Keeping El Zarzaky, Sambo Dasuki and Nnamdi Kanu in gulag for offenses ranging from religious incitement, separatism and Corruption respectively, in defiance of court rulings is an albatross and if you like, a dark cloud hanging over Nigeria under president Buhari’s  watch and given that mr president has used every speaking opportunity to emphasis that he is a reborn democrat, our president has to match his words with action.

l’m still persuaded  that mr president wants to do the right things ,but democracy is not easy to practice especially by a new convert like president Buhari who needs a lot of hand holding at this stage of infancy. When he falls below democracy standards, it is probably because his advisers are guiding him incorrectly, hence there seem to be a disconnect between practice and preaching.

Therefore, mr president probably need to look beyond his immediate vicinity for mentorship in democracy ethos.
To that end ,Kofi Annan, former UN Secretary General and Emeka Anyaoku, ex commonwealth scribe, could be good ‘sounding board’ and so also would The Mo Ibrahim foundation for good governance be a veritable sources to seek practical democracy advise.

Whatever the case may be, l don’t envy mr president and that perhaps explains the wise crack ” Uneasy lies the head that wears the crown ” but then, nobody ever said governance in a democratic setting was going to be a ‘walk in the park’, so mr president,change your tact in order to change Nigeria for the better, so that you can shame your traducers by leaving good footprints in the sands of time.

Onyibe, a development strategist, futurologist and former commissioner in Delta state Govt and an alumnus of Fletcher school of Law and Diplomacy sent this piece from lagos.