Being the text of a paper presented by Obiageli “Oby”
Ezekwesili On August 28, 2012 @ the 2012 Nigeria Bar Association
Conference, Abuja, Nigeria.
Part 1 of this Series
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What then can be done to uproot the scourge of systemic corruption
in society? In fact more appropriately since we now see how deeply
structural the problem really is should we not be eager to first
address the fundamental issues of dysfunction of our overall Governance
architecture
? Should our question then not be “is there any
prospect that Nigeria can ever reverse the seeming descent into an
implosive cesspool of systemic corruption?”
A very comprehensive picture of the quality of governance in Nigeria
emerges from the Worldwide Governance Indicators (WGI) studies. The WGIs
aggregate existing measures of governance to produce cross-country
performance indicators for six different dimensions of governance,
including voice and accountability, government effectiveness, political
stability, regulatory quality, rule of law, and control of
corruption. The good news is that once upon a time not too long ago, the
world saw evidence that even Nigeria had begun making early progress to
reversing the misfortune those decades of stifling poor governance and
its symptom corruption has had and continues to have on it. As the
globally relevant World Governance Indicators studies
showed then, Nigeria made progress over the period 2000 – 2008 in such
governance dimensions as Rule of Law, Regulatory Quality and Control of
Corruption.
It is evident that, key supply-side governance and anti-corruption
initiatives including those that serve as deterrent to bad behavior
amongst public officials such as the ICPC and the EFCC;those with the
objective of instituting structural and institutional mechanisms in the
way of running government such as the NEITI, the Due Process Office, the
Budget Office and the Office of the Auditor-General; and those efforts
aimed at re-orientating Nigerians through enlightenment programs such
as the Code of Conduct Bureau, are largely responsible for the
significant improvements in many governance indicators such as the
percentage of firms reporting bribery; responses on leakage of public
funds as well as bureaucracy as constraints to business. A closer look
at these indicators show that the country made more progress in on voice
and accountability, regulatory quality, rule of law and control of
corruption.
For added measure, other global studies aligned with the finding of
the WGI. In the Competitiveness Report work of the World Bank it found
that efforts at ensuring greater integrity in public service during the
Obasanjo Administration led to significant improvements in many
governance indicators such as the percentage of firms reporting bribery;
responses on leakage of public funds as well as bureaucracy as
constraints to business. For instance, over the three year period to
2005, the percentage of firms reporting bribery declined significantly
from 98% in 2002 to 60% in 2005. The largest area of improvement was in
public procurement. Similarly, the proportion of firms reporting
diversion of public funds to companies and/or individuals dropped from
100% in 2003 to 70% in 2005. And by the way, the latest edition of the
same exercise shows a reversal of that improvement following the release
last Monday of the study conducted in 26 states in Nigeria. The
report indicated that about 80 per cent of businesses in the country
paid bribes to government officials in 2011 to stay in business. The
message to take away from the evidence enumerated is that institutions
matter and when government direct attention to key governance
dimensions, it makes a difference. To consolidate the progress made
under the reform agenda of 1999-2007, key supply-side governance
initiatives such as the ICPC, EFCC, the BMPIU now the Bureau for Public
Procurement, need to be strengthened and made to work as should such
other agencies as the Public Accounts Committee.
However, the fight against corruption and demand for good governance
must go beyond the actions or efforts of government. Citizens must get
involved as beneficiaries of public policy. This is why of recent the
issue of social accountability and the increased role of civil society
and community-based groups have begun to gain prominence. Demand side
approaches to policy and service delivery are currently high on the
agenda of governments in the developing world and Nigerian civil society
and professional groups like the Bar Association have many countries to
learn from. These countries have promoted the complementary demand
side agenda in recognition of the fact that supply-side interventions
have had limited success in a number of areas, including improved
service delivery which is what increases the chances of poverty
reduction amongst majority poor in the society. The growing importance
of social accountability therefore is because of its promise and
potential to strengthen governance, increase development effectiveness
and empowerment through an approach that relies on civic engagement in
demanding accountability from public officials, service providers, and
decision-makers (World Bank, 2004).
In the context of Nigeria, demand side approaches have a strategic
importance because they provide the platform for strengthening
transparency and accountability: In practice, this
involves strengthening federal and state systems for procurement,
internal auditing and internal control functions, statistical capacity
and public financial management to allow Nigeria to better manage its
resources. As part of efforts in these regard, the Government of
Nigeria not only makes public the federal allocations to States and
Local government but also publishes a large percentage of federal
government’s contract awards above a threshold through the Bureau of
Public Procurement. To complement these supply side reforms, there is a
need to build in demand-side tools to hold public officials to account.
For example, civil society organizations or non-state actors can play a
significant role in making public budgeting more transparent and
accountable and can engage in various stages of the budget process that
can strengthen the oversight process and accountability in the use of
public resources. They can also partner with MDAs and project
implementation units implementing development projects in the delivery
and monitoring as well as evaluation of the impact of their
interventions. Such tools as Citizen’s Score Card, Beneficiary
Assessment and Report, Civil Society Independent Evaluation and other
participatory feedback mechanisms in project design and implementation
have often been adopted.
For example, under the Education Sector Reforms of 2006, the
Community Accountability and Transparency Initiative (CATI) was borne
out of the need to ensure that federal funds earmarked for projects that
would enhance Nigeria’s Universal Basic Education targets were
efficiently used. The CATI therefore allowed citizens across the
country to scrutinize the information provided and with it monitor the
actual implementation of the projects and by so doing hold government
accountable. True to promoting the ideals Demand for accountability, we
rolled out CATI under our partnership with
the Civil Society
Action Coalition on Education for All (CSACEFA), an umbrella body for
all CSO groups committed to advocacy for education. Unfortunately I
doubt that the initiative which received unsolicited endorsement many
years later on the floor of the British parliament may not have
lasted beyond my own days in the Education sector. In one of
Lambsdorff’s interesting causative analysis, he found that “Democracy
obtained the expected positive impact on absence of corruption. However,
this impact was more complex. Only countries with high levels of
democracy, or electoral systems with high rates of participation, are
able to reduce corruption. Medium levels of democracy can even increase
corruption. The effect of democracy is also not immediate but takes
decades rather than years. Thus, democracy reduces corruption in the
long run, but not the lukewarm type of democracy.
Thus such strategic importance of demand side approaches and the
absolute engagement of citizens in its processes and activities
have several important implications. One such is the need to come to
terms with a changing institutional landscape with new and evolving
configurations of actors and relationships. Strengthening the
demand-side of accountability by deepening support to wider stakeholder
involvement in decision making, monitoring and implementation is
critical. The desired outcomes of such an emphasis are improved service
delivery, enhanced public participation and local ownership of reform
agendas, greater transparency of decision-making and wider public access
to information. Governments that involve the public will be in a better
position to make good decisions, and decisions will enjoy more support
once taken. Therein lays the linkages in our topic for it is all of the
aforementioned that sustained over time become the solid pillars for
national development.
So beyond the usual platitudes on the important role of the
judiciary, the bar and their law enforcement colleagues in causing or
tackling poor governance manifesting as corruption what else is new? I
mean nothing that is short of a new burst of ideas in their respective
roles can succeed in repositioning our Judiciary and Bar in Nigeria. Of
course, I should still raise the usualby reiterating how they could
help improve governance by strengthening the mechanisms that detect and
prevent corruption. In the justice sector, having the Judiciary with its
new leadership that we have been told interlaces the distinctively
feminine attributes of resilience with a strong intellectual knack and
determination to leave a legacy, it may not be long before we began to
see the fruits of effort at improving the administration of justice and
promoting professionalization of the judiciary and a more transparent
justice system with ease of access to all judicial information; perhaps
even introduce the novelty of Justices negotiating a code of ethics for
all Judges like your Moroccan counterparts (the Moroccan judges’
association vigorously promotes adherence to its Charter of Judicial
Ethics by its members) . and such other measure common to any ambitious
program of judicial reforms. Yet, such progress will be lasting only to
the extent that it is the result of the profession and the
judiciary fully asserting and inserting their true powers and roles for
society which for too long has been subordinated to individual
caprices. For the latter; the power to sanction as a veritable tool of
deterrence and for the former, co-leading and building a vibrant
coalition to promote the Demand Side for accountability role of
citizens(including particularly a rainy season clean out of the
profession’s Augean stable through a “Bring Back Our Ethics and Values”
initiative by your association). You can then perhaps even go further
again like your Moroccan contemporaries who have been working to fight
the country’s endemic corruption by using their association, The Union
of Young Lawyers to open an anti-corruption legal advocacy center (ALAC)
in 2010. The advice would further be to do thiswithin the same ambit
of deterrent, preventive and advocacy/activism measures of the other two
arms so that it fully completes the tripod in any comprehensive set of
integrated anti-corruption menu.
Whatever may be the level of epiphany that the new leadership could
lead the Judiciary and the rest of their profession to undergo I must
still insist that no durable structural change of the corrupted Nigerian
society will crystalize without our going back to where I started from-
Good Governance! The keys to good governance, as articulated by the
United Nations Development Program being the rule of law, participation,
and accountability and transparency means that theinstitutions of the
judiciary branch and the legal profession at large have an indispensable
role toplay in these two areas: “the judiciary is the bedrock of a
society functioning according to the rule of law, and it can ensure that
other institutions of government and individual leaders are held
accountable for their actions”.
The foundation of every democracy is of course the Constitution. A
good (note that I did not say perfect) constitution is one that evolves
out of the multiple experiences and aspirations of a people who though
divided along the lines of diverse persuasions yet being divinely
co-located to become one nation become adept at using principled
dialogue to build their consensus on certain core values, ethos,
principle, structures, processes and functions that promote equitable
development of their country and constantly improve the well-being of
their citizens. The experiences of many other nations have shown that
any constitutional process which from the very beginning anchors its
fundamentals on the twin concepts of incentives and sanctions have often
delivered better political, economic and social outcomes for citizens
both as individuals and as a collective. Therefore, if we all agreed
that our problem is deeper than what an even solid comprehensive anti-
corruption program can solve then the next thing should be an to discuss
if there is an agreement that engendering a new Nigerian constitution
from such an incentive-sanctions framework is an imperative.
Should there be a consensus around that, then some key
questions that should arise would be “How can we realign the incentives
and sanctions in a functional structure of our entity called
Nigeria?” “How substantive and germane to the fundamentals of our
structural deformity are the current priorities of the National Assembly
Constitution Review Committee?” “What can we learn from our sister
country Kenya (similarly troubled by governance challenges) and
which upon experiencing an explosive and costly wake-up call seized the
moment and commenced a structural overhaul of their polity and its
entire governance framework through citizens’ driven constitutional
review process”.
I should expand some more on the last question. The Kenyan
constitutional process produced a new 2010 Constitution that every
Kenyan stands protective of because of their true ownership of its
content through a Referendum. Today, most citizens and outsiders who are
abreast with the politics and economics of Kenya as I was in my
previous position at the World Bank all acknowledged that there
are indeed early signs of salutary impact on Governance and what changed
in their judicial arrangement is a major contributor to this fresh
optimism. For Kenya, receiving cautious praise on Governance even from
renowned skeptics is already a signal that they have taken that
legendary right step in the direction of the 1000miles travel.
Is it farfetched to imagine that our Judiciary can courageously step
up its leadership on the constitutional debate? Could it demonstrate the
strength of will by reaching beyond the shores of our land to learn
some of the lessons of the Indian judiciary which has earned a
reputation for being the arm of government that pushes the boundaries in
ensuring that Good Governance is rarely compromised and undercut by the
short term and shifting political incentives of the parliamentary and
executive arms of government. Justice Y.K. Sabharwal, Chief Justice of
India until 2007 said in an inspiring speech during his tenure that “in
order to guarantee that the role of law would inure to, and for,
everyone and the promises made by the Constitution would not
remain merely on paper, the Constitution makers made provisions
for independence of the judiciary. Judiciary in India enjoys a very
significant position since it has been made the guardian and custodian
of the Constitution. It not only is a watchdog against violation of
fundamental rights guaranteed under the Constitution and thus insulates
all persons, Indians and aliens alike, against discrimination, abuse of
State power, arbitrariness etc. but borrowing the words of one of the
founding fathers of the American Constitution, James Medison, I would
say that the Judiciary in India is “truly the only defensive armor of
the country and its constitution and laws”. If this armor were to be
stripped of its onerous functions it would mean, “The door is wide open
for nullification, anarchy and convulsion”.
The Kenyan lawyers were activists and advocates for this first of a
kind participatory and substantive constitutional process since their
independence. Can we ever dare to hope that the voice of our Bar
Association will be heard on the on-going process that unwittingly seems
like a purely politicians led constitutional review in Nigeria in that
despite the best intentions of the leaders of the national
Assembly it still the credible voice and participation excludes the
larger majority of citizens? Should our modern democracy be allowed to
miss one major opportunity to fully practice that key concept of
participation and inclusion that Good Governance advocates by ensuring
that the broader society with careful attention to minority and
vulnerable groups are brought into the discussions that will determine
those thorny but strategic issues that are fundamental to the structural
overhaul and re-balancing of our polity? Does your Bar not have an
incentive to complement my proposed judicial activism just like your
colleagues in India who were applauded by their Chief Justice?
Further on in the same speech that detailed the primus role of the
judiciary in promoting good governance by insisting adherence to the
rule of law he stated, “The rule of law, one of the most significant
characteristics of good governance prevails because India has an
independent judiciary that has been sustained, amongst others, because
of support and assistance from an independent Bar which has been
fearless in advocating the cause of the underprivileged, the cause of
deprived, the cause of such sections of society as are ignorant or
unable to secure their rights owing to various handicaps, an enlightened
public opinion and vibrant media that keeps all the agencies of the
State on their respective toes.
“An independent judiciary is important for preserving the rule of law
and is, therefore, most important facet of good governance. The
judicial system has an important role to play ultimately in ensuring
better public governance. There may be a plethora of regulations, rules
and procedures but when disputes arise, they have to be settled in a
court of law. There is no area where the judgments of Supreme Court have
not played a significant contribution in the governance – good
governance – whether it be – environment, human rights, gender justice,
education, minorities, police reforms, elections and limits on
constituent powers of Parliament to amend the Constitution.”
Appreciating such a judicial context as remarkable as the Indian one,
should our own Judiciary at a time like this when the discussions on
the amendment of the constitution is reaching a crescendo not be more
courageous in aligning with the voices of agitation that seek to have
your own arm of government become truly independent and not beholden to
corrupting interests. In so doing, would it not offer renewed hope to
our society which has watched with great distress and even despondent
resignation the not at all dignifying trend in adjudication of
corruption charges (both political and economic) in our recent history?
May be you already know, but I shall take the liberty of your inviting a
“not so learned” chartered accountant cum public policy expert like me
to your event and pass on a message generally given by those who knew of
your kind invitatio1n to me “Nigerians are at once disappointed and
worried for your profession and the entire Justice system”.
Most now say that we crossed the Rubicon once even our Judiciary,
that same very last hope if the common man and woman in the golden era
of your profession, became engulfed in what seems like an
orchestrated “Kidnap of Justice?” I heard that term poetically used by
one of the prodigiously talented young Nigerians that recited an Ode to
Justice only this past weekend at a youth event by The Future Award, a
youth group determined to behold The New Nigeria. If you heard the words
of that poem, something tells me that some of you would rise into
action and become that Remnant group that has always historically paid
the price for the greatness of the multitude. There is a price to be
paid for the return of our Lady Justice. So my last word is “who among
us is ready to let character be their destiny?” Count me in should you
need a slightly learned friend!
