Monday, 10 August 2015
Buhari’s Shuttle Diplomacy: Strengthening the Anti-Corruption Crusade
The right to development is a fundamental right by virtue of which every person is entitled to participate in, contribute to and enjoy economic, social and cultural development. It is a right which includes the exercise of full sovereignty over national resources, self determination, popular participation in development and equality of opportunity. By virtue of section 16(2)(c) of the Constitution, the Nigerian State shall direct its policy towards ensuring the promotion of a planned and balanced economic development and ensure that the economic system is not operated in such a manner as to permit the concentration of wealth or the means of production and exchange in the hands of a few individuals or of a group.
The demand for the control of the country's natural resources was a component element in the struggle for independence from the British colonial regime. But upon the attainment of self-rule the status quo was allowed to remain in the economic front. Realising that the socio-economic rights of the people could not be meaningfully guaranteed without the control of the natural resources a duty has been imposed on the member states of the African Union to freely dispose of the commonwealth in the exclusive interest of the people.
In order to establish a welfare system in the country, the Constitution has imposed a duty on the State to direct its policy towards ensuring that the material resources of the nation are harnessed and distributed as best as possible to serve the common good and that the economic system is not operated in such a manner as to permit the concentration of wealth or the means of production and exchange, in the hands of few individuals or of a group. But with the hijack and control of the economy by imperialism and its local lackeys the commonwealth has been completely concentrated in the hands of a few people.
No doubt, the domination of the Nigerian economy by market forces has stultified the development and growth of an efficient, dynamic and self-reliant economy in Nigeria. The adoption of neo-liberal economic policies by the Federal Government has continued to promote poverty among the generality of Nigerians. Despite the abundant resources of the nation, the Vice President, Professor Yemi Osinbajo has disclosed that "over 100 million Nigerians live below the poverty line." I am not unmindful of the commitment of the Buhari Administration to fight corruption. It ought to be pointed out that corruption is not the root cause of our poverty but a manifestation of the peripheral capitalist economy which is anchored on ruthless exploitation.
With the implementation of the Structural Adjustment Programme the State has stopped the planning of the economy, refused to harness the resources of the country and failed to address grand corruption and abuse of office. But in view of the debilitating effects of corruption on the society, the State has adopted some measures to promote transparency and accountability in governance. In addition to the penal and criminal codes which have provided for stringent penalties for fraud, embezzlement, stealing, conversion etc other laws which are designed to promote good governance are the Independent Corrupt Practices and Other Related Offences Commission (ICPC) Act, Economic and Financial Crimes Commission (EFCC) Act, Code of Conduct Bureau Act, Public Procurement Act, and Fiscal Responsibility Act. In demonstration of its resolve to combat corruption, the Government has ratified the United Nations Convention on Corruption and the African Union Convention on Corruption.
Aside from, the collaboration with some countries to tackle corruption through Mutual Legal Assistance, the Federal Government has enacted a number of laws for encouraging ethical standards and promoting good governance. Notwithstanding the corpus of anti-graft laws and the establishment of anti-corruption agencies, official corruption has stultified growth and development and exposed the country to ridicule before the comity of nations. This is not unexpected given the nature of the country's neo-colonial capitalist economy compounded by impunity on the part of the ruling class.
Duty of Nigerian citizens to fight corruption
The duty imposed on citizens "to render assistance to appropriate and lawful agencies in the maintenance of law and order” includes the duty to expose corruption by reporting allegations of corrupt practices to the anti-graft agencies. In Fawehinmi v Inspector-General of Police (2002) 1 NWLR (PT 767) 606 the Supreme Court held that notwithstanding the immunity conferred on heads of government by section 308 of the Constitution, criminal allegations against them may be investigated by the police during their term of office. The view of the apex court was captured by Justice Uwaifo when he said that “the evidence or some aspect of it may be the type which might be lost forever if not preserved while it is available, and in the particular instances given it can be seen that the offences are very serious ones which the society would be unlikely to overlook if it had its way. It may no doubt be used for prosecution of the said incumbent Governor after he has left office. But to do nothing under the pretext that a Governor cannot be investigated is a disservice to the society.”
The Court however turned round to hold that the police could not be compelled to investigate or prosecute any criminal complaint on grounds of public policy. With respect, the Supreme Court missed the point as it failed to take cognisance of the relevant provisions of the Constitution. In other words, the discretion of the anti graft agencies to decide whether or not to investigate or prosecute allegations of corruption cannot override the fundamental right of citizens to freedom of information coupled with the duty placed on them to render lawful assistance to law enforcement agencies in the discharge of their duties.
Convinced that they have discretion to investigate or prosecute allegations of corruption the anti graft agencies have often picked and chosen which cases to investigate or prosecute. The latitude given to the police and other agencies clothed with prosecutorial powers was challenged in Alhaji Sani Dododo v Economic & Financial Crimes Commission and Ors. (2013) 1 NWLR (PT 1336) 468. Having submitted petitions to the anti graft agencies alleging corruption against a former governor of Sokoto State, Senator Muhammed Adamu Aliero which were not investigated by the respondents the Appellant approached the Federal High Court for judicial review by filing a writ of mandamus. In striking out the case for want of locus standi on the part of the Appellant the federal high court held that the Respondents could not be compelled to investigate or prosecute the suspect.
The appeal against the verdict was also dismissed by the Court of Appeal. But the locus standi of the Appellant to institute the case was recognised when the Court (per Nwodo JCA) held that "the traditional and narrow view set out in Adesanya’s case will not attain justice in the realm of public right in the light of the Nigerian cases earlier set out on issue of locus... the African Charter provision encompassing public rights should be so construed broadly to vest locus on a tax payer who is interested in good governance and shows such interest by writing a statutory body to complain on misappropriation of public funds. Such an act is disclosure of sufficient interest.”
In recognising the constitutional duty imposed on citizens to report allegations of corrupt practices by public officers to the anti graft agencies the Court of appeal further stated that the appellant “also has a duty, by dint of section 24(e) of the same Constitution ‘to render assistance to appropriate and lawful agencies in the maintenance of law and order’. It is in the spirit of section 24 of the Constitution, read together with section 15(5) of the same Constitution that enjoins the state agencies to ‘abolish all corrupt practices and abuse of power’ that the appellant made his complaint of corrupt practices against the 4th respondent to the 1st and 2nd Respondents, who are no doubt lawful agencies of the Federal Government charged with police powers to investigate allegations of corrupt practices and financial crimes and prosecute the offenders.”
In the fight against corruption, the Court rightly held that aggrieved citizens who submit petitions alleging corrupt practices against public officers are entitled to the report of the investigation carried out by the police and anti graft agencies. It was the solid view of the Court that "the appellant is entitled to the investigation report on his right as the complainant. See Article 9 of the African Charter. The generality of the public are not entitled to that information until the person suspected is arraigned before a competent court for trial."
In view of the categorical pronouncements of the appellate courts in the cases of Fawehinmi v the President (2008) CHR 1 and Alhaji Dododo v. Economic and Financial Crimes Commission (supra) it can no longer be said that a tax payer has no locus standi in demanding for the investigation or prosecution of a public officer suspected to have engaged in corrupt practices. To that extent, the Federal High Court (per Kolawole J.) fell into error when it struck the case of Socio-Economic Rights Accountability Project & Ors. v Attorney-General of the Federation & Anor. Unreported Suit No: FHC/ABJ/CS/ 640/ 2010 on the ground that the Plaintiffs, a group of human rights bodies, lacked the locus standi to demand for an account of the $12.4 billion which was allegedly mismanaged by the Ibrahim Babangida junta. Since the members of the Plaintiffs have a duty to render assistance to law enforcement agencies the doctrine of locus standi was improperly invoked and wrongly applied by the trial court.
Indeed, the trial court ran into contradictions when it turned down the request of the Defendants for the award of costs. Even though the court had struck out the case for want of locus standi it proceeded to say the Plaintiffs could not be said to be "busybodies" when it held that "It will be uncharitable for anybody to describe or christen them as ‘busy-bodies’. They are not, rather, I see them as patriotic ‘corporate citizens’ of Nigeria who in my view, are driven purely by a desire to use the judicial instruments to effectuate in practical terms, the ‘fundamental objectives’ expressed in section 14(1) of the CFRN, 1999 as amended that ‘the Federal Republic of Nigeria shall be based on the principles of democracy and social justice’.... These Applicants are not busy-bodies but patriotic corporate citizens (regardless of the status of the 2nd and 3rd Applicants who did not sue through their registered trustees) whose courage to bring this action against all odds, must be commended."
In Bamidele Aturu V Honourable Minister of Petroleum & Ors. (unreported) Suit No: FHC/ABJ/CS/591/2009 the locus standi of the plaintiff to challenge the decision of the defendants to deregulate the downstream sector of the petroleum sector was upheld by the Federal High Court. The trial judge, Adamu J. (as he then was) held that "...it is my considered view therefore that any decision by the government of Nigeria to deregulate the downstream sector of the petroleum industry in the face of the extant laws copiously referred to, will not only be unlawful, illegal but unconstitutional as well and therefore, null and void.”
Recovery of looted wealth
No doubt, the avowed commitment of President Buhari to fight corruption and end impunity in the country has attracted the goodwill of the international community. Apart from his invitation to attend and address the last meeting of the G7, President Buhari is currently on tour of the United States on the invitation of President Obama. Before then, Nigeria had hosted the meeting of her neighbours in the renewed fight against terrorism. To a large extent, the pariah status of the country may be said to have ended.
At the meeting of the G7, President Buhari pleaded with the leaders of global capitalism to collaborate with Nigeria in fighting terrorism and in fixing her comatose economy. Convinced that the destiny of the nation lies in the hands of Nigerians I pleaded with President Buhari to look inwards. In particular, I suggested that Nigeria should reject any bailout and make a strong case “for the repatriation of our looted wealth in the vaults of western banks”. Happily, President Buhari has requested the Obama Administration to assist in the repatriation of about $150 billion looted from the public treasury in the last decade.
Since the war against official corruption commenced under the Buhari Administration corruption has decided to fight back in a vicious way. Apart from attacking the leadership of the anti graft agencies the regime has been accused of engaging in dictatorial and authoritarian tactics by the few unpatriotic elements who have stolen the country dry. While the decision of the Federal Government not to interfere in the work of the anti-graft agencies is a welcome development, the National Assembly should forward to President Buhari for his assent the Witness Protection Bill and the Whistle Blowers’ Bill. The National Assembly deserves commendation for enacting both laws together with the Administration of Justice, 2015.
Under the new Act the granting of stay of proceedings and other delay tactics have been banned in the trial of criminal cases. Accordingly, a criminal trial shall be concluded within months unless there are exceptional circumstances which may prolong any trial. Indeed, the elevation of trial judges to the Court of Appeal will no longer lead to a fresh trial before other judges as newly appointed judges will be given the fiat to conclude part heard matters. Plea bargain has been given statutory recognition by the Act.
Those who are opposed to the renewed fight against corruption have begun to accuse President Buhari of waging a persecution agenda. While urging the anti graft agencies to ignore such campaigns of calumny it is germane to remind Nigerians that since 1994 all successive regimes in Nigeria have waged a war against corruption. It was the Sani Abacha junta that enacted the Failed Bank Decree and the Advance Fee Fraud Decree to deal ruthlessly with bank fraud and the offence of obtaining money by false pretences. The Pius Okigbo-led probe of the mismanagement of the Central Bank instituted by the junta revealed that $12.2 billion in the Dedicated Accounts was misappropriated by his predecessor and comrade-in-arms, General Ibrahim Babangida.
Following the death of the maximum dictator, General Abacha on June 8, 1998, his successor, General Abdulsalami Abubakar ordered investigation into the grand looting of the Central Bank of Nigeria from 1993-1998. At the end of the probe it was established that the late military ruler stole about $5 billion from the vaults of the CBN through his National Security Adviser, Mr. Mohammed Gwazo. The said stolen fund has since been traced to over 140 bank accounts in western countries and some remote islands in the world. Based on report of the investigation the Federal Government recovered funds and properties worth over $1 billion from the family and associates of General Abacha. The forfeited assets were promulgated into law by General Abubakar on 26th May, 1999. Upon our request under the Freedom of Information Act, the immediate past Secretary to the Federal Government, Senator Anyim Pius Anyim confirmed that the said funds and assets had been forfeited to the Federal Government.
Upon the restoration of civil rule in May 1999 the Olusegun Obasanjo Administration embarked on the recovery of the remaining Abacha loot. Contrary to the misleading information of the then Minister of Finance, Dr. Ngozi Okonjo-Iweala, that only $500 million was recovered under her watch we have established that the Government of Switzerland assisted Nigeria to recover $700 million which was handed over to the Federal Government while another sum of $350 million was recovered from family members and business associates of General Abacha in respect of the Ajaokuta contract scam. It has also been revealed that the proceeds from the sale of shares of the late dictator in a refinery located in Sierra Leone worth $450,000 were forfeited to the Federal Government at the material time.
It is on record that the recovery efforts of the Federal Government continued under the Goodluck Jonathan Administration. In justifying the withdrawal of the criminal charges filed against Mr. Mohammed Abacha over his role in the diversion of the stolen fund, the Federal Ministry of Justice disclosed, sometime last year, that another sum of $970 million had been recovered from the Abacha loot. Shortly thereafter, the United States' Government announced that it had recovered the sum of $458 million from the Abacha loot. The said sum of $458 has not been repatriated to Nigeria for obvious reasons.
During the recent electioneering campaign, President Jonathan boasted that his administration had fought corruption more than previous regimes. He therefore warned Nigerians not to vote for General Buhari as he was likely to jail corrupt people. As Nigerians actually wanted corrupt people jailed they decided to vote for the retired General. In fairness to President Jonathan, the fight against corruption under his regime recorded some success. Apart from an ex-governor who escaped the arrest of the EFCC only to be arrested, tried and jailed abroad the era witnessed the conviction of a few influential people who were convicted for stealing billions of Naira but asked to pay ridiculously low fines. Indeed, the regime charged Mr. Dick Cheney, a former Vice President of the United States and the Nigerians who were indicted in the Halliburton scandal even though the cases were struck out for want of diligent prosecution.
Based on the concern expressed by President Jonathan over the inordinate delay in the prosecution of corruption and terrorism cases the heads of the Supreme Court, Court of Appeal and Federal High Court issued practice directions to accelerate the hearing and determination of such cases. Under the practice directions the hearing of cases of corruption and terrorism shall be heard day by day while appeals arising there from shall take precedence over other matters. But for reasons best known to our judges the practice directions have been ignored.
Campaign against Anti Graft Agencies by the Ruling Class
Based on the avowed commitment of President Muhammadu Buhari to fight the menace of corruption the members of the ruling class have begun to wage a campaign of calumny against the EFCC and other anti graft agencies. An influential newspaper has, without any shred of evidence, accused the EFCC leadership of wallowing in corruption while a rented crowd has "stormed" Abuja to demand for the removal of the EFCC chairman. Even some members of the ruling party have not spared the EFCC for daring to ask certain people to account for public funds the EFCC has been accused of allowing itself to be used to settle political scores. On its own part, the Peoples Democratic Party has alleged that the anti corruption agenda of the Buhari Administration is deliberately designed to humiliate the party and embarrass the Goodluck Jonathan Administration.
The other day, the immediate past National Security Adviser, Col Sambo Dasuki (rtd) had his residence searched by officials of the State Security Service (SSS)based on a search warrant issued by a Magistrate. Without considering the fact that the search was carried out in line with the rule of law the SSS was accused by a section of the media of embarrassing Col. Dasuki for leading the soldiers who arrested General Buhari during the palace coup of 1985. In the same vein, police investigation into the alleged forgery of the Standing Rules of the Senate by a top national assembly staff is being politicised. Even a mere invitation extended to some persons to react to allegations linking them with multi billion naira fraud is now said to be a political vendetta.
Since the allegations of bias or persecution being leveled against the EFCC are deliberately designed to discredit the renewed fight against corruption and shield looters from prosecution it is high time that the attention of Nigerians was drawn to the fact that corruption is fighting back. It is indeed embarrassing that some members of a regime that promised to fight corruption are involved in the dubious campaign to sustain impunity in the country. Having closely monitored the recent activities of the EFCC since it was established over 10 years ago, I can say, without any fear of contradiction, that the Buhari Administration has not gone beyond granting autonomy to the commission to discharge its statutory duties. It may interest Nigerians to know that majority of the petitions which formed the basis of the ongoing investigation by the EFCC were submitted before the emergence of the Buhari Administration.
I have confirmed that the petition against the cabal of fuel importers was submitted to the EFCC sometime in January 2012 by the immediate past Minister of Petroleum Resources, Mrs. Deziani Alison-Madueke on the directive of President Jonathan. Even the petition against those who duped the nation of hundreds of millions of dollars through the oil swap scam was also submitted to the EFCC by her after the 2015 presidential election. With respect to the ex-governors of the APC and PDP who are currently standing trial, the petitions which triggered the investigations were written and submitted to the anti graft agency by concerned citizens and anti-corruption bodies.
It should be pointed out that the EFCC and other anti graft agencies are being inundated with petitions by Nigerians and foreigners alike who believe that the Buhari Administration will not shield corrupt people from investigation and prosecution. To that extent, the decision of the Federal Government to limit the investigation of corruption cases to the Jonathan Administration cannot be justified in law. As there is no statute of limitation with respect to corruption cases aggrieved Nigerian citizens cannot be restrained from exposing corrupt practices of successive regimes. More so, that President Buhari has requested the Obama Administration to assist in the recovery and repatriation of $150 billion stolen from Nigerian in the past decade.
There is no doubt that official corruption has continued to arrest the development of the country. This is not unexpected given the nature of the country's neo-colonial capitalist economy compounded by impunity on the part of the ruling class. If the Buhari Administration is going to confront the menace of corruption it has to ensure that the stolen wealth of the nation is recovered and invested in promoting the welfare of the Nigerian people. To that extent, all the welfare laws enacted pursuant to chapter II of the Constitution should be implemented in order to promote the welfare and security of the people.
The EFCC and ICPC should leave no stone unturned in the recovery of the nation's looted wealth. Henceforth, state and local governments should cooperate with the EFCC in the investigation and prosecution of those who have diverted public funds belonging to them. To guarantee the maximum cooperation and participation of the citizenry in the fight against corruption the Federal Government should direct all public officers to comply with the provisions of the Freedom of Information Act. In addition, President Buhari should sign the Whistle Blowers Bill and the Witness Protection Bill into law. In granting autonomy to the anti graft agencies the regime should ensure that there is no selectivity in the investigation and prosecution of corruption cases while the rights of all criminal suspects are respected.
Mr. Falana SAN is a human rights lawyer and recipient of the Bernard Simmons Award of the International Bar Association.