The Mix-Up Of Corruption, The Rule Of Law And Due Process

by L.Chinedu Arizona-Ogwu

Corruption is the reason there had been a perpetual collapse of infrastructure and institutions; it is the cause of the endemic poverty in Africa; it is the reason for the underdevelopment and the cyclical failure of democracy to take root in Africa . Corruption is worse than terrorism. Public officials who are corrupt should receive worse treatment than that reserved for terrorist. It is high time we refocus and give issues of corruption the attention they rightly deserve. The challenge before us is to set our sights on making corruption, rather than poverty or any other socio-economic malaise, history. For, as soon as we do so, everything else, like a worrisome jigsaw puzzle, will fall in place. Making corruption history is the surest way of making all the problems of Nigeria and Africa history.

Nigeria used to be synonymous with corruption just a few years ago. Unscrupulous leaders pilfered the national coffers and stashed away billions of dollars in foreign bank accounts. By some estimates close to US $400 billion was stolen between 1960 and 1999. Sani Abacha alone is estimated to have stolen the equivalent of 2 – 3 per cent of the country’s GDP for every year that he was President. That is a staggering – almost “astronomical” – amount of money because if you were to put 400 billion dollar bills end-to-end, you could make 75 round trips to the moon! Concretely, those 400 billion dollars could have translated into millions of vaccinations for children; thousands of kilometres of roads; hundreds of schools, hospitals and water treatment facilities that never came to be.

But Nigeria is fighting back. It has waged a war against inefficiency and endemic corruption and today it is winning. There is nothing short of a “corruption climate change” in the air. The Economic and Financial Crimes Commission (EFCC) led by fearless “crime-buster” Nuhu Ribadu is the most successful anti-corruption agency in Africa and is setting an example to the rest of the world. It is enhancing good governance and financial accountability while helping reduce fraud, waste and corruption. The Commission is empowered to investigate, prevent and prosecute offenders who engage in Money laundering, embezzlement, bribery, looting and any form of corrupt practices, illegal arms deal, smuggling, human trafficking, and child labor, illegal oil bunkering, illegal mining, tax evasion, foreign exchange malpractices including counterfeiting of currency, theft of intellectual property and piracy, open market abuse, dumping of toxic wastes, and prohibited goods. The Commission is also responsible for identifying, tracing, freezing, confiscating, or seizing proceeds derived from terrorist activities. EFCC is also host to the Nigerian Financial Intelligence Unit (NFIU), vested with the responsibility of collecting suspicious transactions reports (STRs) from financial and designated non-financial institutions, analyzing and disseminating them to all relevant Government agencies and other FIUs all over the world.

Nigeria is Africa ‘s biggest oil exporter, but its natural resources make it particularly vulnerable to corruption. The oil-rich Niger Delta is a case in point. Corruption deters much-needed foreign investment, which keeps countries mired in poverty and its people deprived. Huge revenues from oil or gas reserves mean low taxes, but also low accountability and a lack of transparency, as well as limited public services. The EFCC is an initiative that could help reduce vulnerability to corruption, bad governance and poverty caused by greed for lucrative oil wealth and ploughs that money back where it is needed – in social and economic development programmes.

Nigeria is thus benefiting from climatic change in attitude, in the rule of law and due process and in its fight against corruption, although, the recent clarifications by the Attorney-General of the Federation and Minister of Justice, Mr. Michael Oandoakaa (SAN), concerning his office’s oversight functions on the activities of the country’s anti-graft agencies is quite profound. The agencies involved are the Economic and Financial Crimes Commission (EFCC), Independent Corrupt Practices and Other Related Offences Commission (ICPC) and the Code of Conduct Tribunal. Even as the clarifications might have come as a recant of the President’s earlier announcement on the issue, we welcome the intervention and at the same time commend the minister.

The federal government erroneous empowerment of the Attorney-General of the Federation to supervise the anti-graft bodies would be the regotary of the prosecution of suspects by the anti-graft bodies. It could remain an approval of a request by the minister to the president for the adherence to the constitution and with a view to streamlining the prosecution activities of the agencies. However, within twenty four hours of the president’s pronouncement, the minister went to town with what has been seen as soft-pedaling on the president’s avowment. Perhaps, that seeming self-reversal may have been as a result of the controversies that the issue was beginning to generate.

Instead of wholesale supervision of the agencies as the president had announced, Oandoakaa said he had decided to “cede” his prosecution powers to the anti-graft bodies. According to him, they should continue with their prosecution activities as they have been doing and in accordance with the relevant powers granted to them by the statutes that created them. By this, it would seem that the anti-graft agencies have been asked to continue as they have been doing. This is where the inference to self-reversal or recanting derives. Metaphorically, Aondoakaa is a loud farter too. Or how else does one interpret his actions and policies, which tend to confuse and disgust some Nigerians? The man wants people to believe that his presumed mess does not smell as well. But it is coming to a point Nigerians will ask him to control his flatulence.

Recent media reports indicate that the Federal Government plans to merge the Economic and Financial Crimes Commission with other anti-graft agencies. The nation‘s chief law officer reportedly said having one stronger body was better than having a multiplicity of bodies performing similar functions. Aondoakaa, who spoke during the inauguration of the House Committee on Justice, supported his argument with the petition the Attorney-General of Ebonyi State sent to President Umaru Yar‘Adua. Ebonyi had purportedly complained about the involvement of the EFCC and the Independent Corrupt Practices and other Related Offences Commission in the investigation of the government of that state. He also cited the trial of the former governor of Bayelsa State , Diepreye Alamieyeseigha, by the Code of Conduct Bureau as another reason to merge the agencies. Alamieyeseigha, Aondoakaa noted, had already been tried and convicted of the same charges as preferred against him by the EFCC. Despite criticisms, the AGF says he is not going back on the merger.

Ironically, the same AGF, last October, hinted of plans to create what he called a Special Legal Unit that will be distinct from other anti-graft agencies. The SLU is to prosecute persons and public officials indicted for corruption by the National Assembly since 1999. According to the minister, the special unit will complement the efforts of the existing anti-corruption bodies. Aondoakaa added that the unit would specifically handle reports on corruption by the National Assembly and abuse of budgetary provisions.

Does the proposed merger indicate that the AGF is dropping the SLU idea? Or could he be experimenting on something Nigerians are yet to know? I must confess that I have been a staunch supporter of Aondoakaa. In many debates where people have expressed reservations about his conduct in office, I have always opined that he should be given a chance. His rule of law mantra had particularly captivated not just me, but the Nigerian Bar Association as well. I doffed my hat for him and the EFCC when they decided to challenge a Federal High Court order in Benin restraining the anti-graft agencies from arresting, investigating and prosecuting Ibori.

However, his resort to technicalities in the fight against corruption has been worrisome. When he attempted to curb the powers of the anti-graft agencies sometime in August, he based it on the rule of law. He had wanted the agencies to get his approval before prosecuting any suspect. Some people cried foul, and the FG reversed the decision.Hardly had this died down when the AGF engaged the EFCC in another tug of war. The AGF‘s office had attempted to take over the prosecution of the former governor of Abia State, Orji Kalu, from the EFCC without prior information to the agency. To the minister, this action was to protect the rule of law. He had cited an Umuahia High Court order restraining the EFCC from arresting and prosecuting Kalu for corruption as an excuse.

Only recently, a Federal High Court in Port Harcourt complained that the AGF‘s office was delaying proceedings on the case the former governor of Rivers State, Dr Peter Odili, instituted against the EFCC. In the words of the presiding judge, Ibrahim Buba, ”The attitude of the office of the Attorney-General to this matter has been drawing back the hands of the clock and affecting proceedings negatively.” Odili had prayed the court to restrain the EFCC from arresting him and investigating his activities while in office. Even the ICPC Chairman, Emmanuel Ayoola, and the Chairman of the Code of Conduct Tribunal, Constance Momoh, have had cause to complain against the AGF. Momoh, for instance, was angry that the government prosecutor was delaying the trial of Alamieyeseigha by asking for unnecessary adjournments.

Equally interesting was the AGF‘s actions over the trial of the former governor of Delta State, James Ibori, in London. A London Court had ordered the freezing of Ibori‘s assets in London pending the conclusion of investigation into money laundering or corruption charges against him. Aondoakaa fired a letter to the ex-governor‘s counsel, saying Ibori was not under trial for corruption in Nigeria. Attempts by the Metropolitan Police to obtain some evidence from the AGF‘s office in relation to the case were also frustrated. Ibori‘s assets were later de-frozen, although the freezing order was reinstated.

Ordinarily, there is nothing wrong with merging the anti-graft agencies, especially the EFCC and the ICPC. But Aondoakaa‘s body language has cast suspicions about his real intentions. Granted that Section 36 (9) of the 1999 Constitution forbids trying an offender twice for the same offence, Aondoakaa should have allowed the courts to make that pronouncement. Why has he chosen to act as counsel to the accused ex-governors? It does appear, rightly or wrongly, that all he is after is to clip the wings of the EFCC.

Besides, these agencies may appear to be doing the same thing, but they are not. The EFCC is for economic and financial crimes. The ICPC takes care of other corrupt practices. The CCB is mainly concerned with asset declaration of public office holders. It is a constitutional creation. I am not a lawyer, but my learned friends tell me that except the Constitution is amended, nobody can tamper with the CCB.This time, based on fresh information the Economic and Financial Crime Commission (EFCC) is re-opening the investigation of the N3.5 Billion contract scam involving Senator Iyabo Obasanjo-Bello and a foreign firm.The anti-graft agency said that what many Nigerians described as its “passive role” in investigating the first daughter of the immediate past President Olusegun Obasanjo over the controversial deal, where she and her business partner, Albert Awofisayo, have been fingered was first reported to it in July last year.

After hearing the details of the transaction, the EFCC said that it treated it as a civil matter and advised the parties to resolve it that way.But the Action Congress (AC) has called for a full-scale probe of the deal, even as it expressed shock at what it described as the emerging dirty details of the deal.In a statement signed by its spokesman, Ositah Nwajah, the EFCC said the first petition it received on the matter was a civil matter and did not include Senator Iyabo Obasanjo-Bello’s name.The petitioner had written to it that the former President’s daughter had claimed to be Mrs. Akinlawon, with a view to benefiting from a N3.5billion power project contract involving M. Schenider GMBH and Co. Obasanjo- Bello allegedly travelled to Austria to sign the contract papers.

The dispute was first reported to the EFCC in July 2006 via a petition from Rickey Tarfa & Co., acting on behalf of M. Scheneider (Nig.) Ltd., among which directors was Prince Albert Awofisayo. It may seem so, but that is not our reading of the whole issue. There is a caveat in the minister’s concession. The power, as he ceded to the agencies, is not absolute. He said that in granting to them such latitude, he would interfere in their activities if he finds a “very good” reason to do so. The key is to build checks and balances into the political system and ensure that corrupt politicians do not get into public office. We shall consistently have zero tolerance for corruption. We do not want to perpetuate endemic corruption and the disregard for the rule of law and due process. We must entrench good governance. If we must progress as a nation, we must change our attitude toward governance and ensure that we improve the living standard of our people

It is important that no suspect is detained beyond 48 hours as stated by law. There is a strong signal inherent in these, just as their message is quite resounding. The message is simply that the agencies are answerable to an authority. It is a reminder, even if it is coming a bit late in the day, that they are not free agents as they may have believed or been perceived by the public. It means that they cannot act at will and more importantly, that they must operate within the bounds of the laws of the land. It means that arbitrariness, which the EFCC has been accused of in the handling of its operations, will now come under check. Evidently, of all the agencies, the EFCC have had the hardest knocks. It has been accused variously of arbitrariness, of employing the tactics of inclusion and exclusion in its crime fighting. Also, the accusation that it disobeys the rules of engagement and the laws of the land has been quite ardent and persistent. It is from this prism that the minister’s clarifications can be appreciated.

However, that is not to say or suggest that the agency has not recorded good successes. If anything, it has out-performed the rest of the anti-graft agencies and created certain consciousness in the polity today. There is now a conscious effort by Nigerians to be circumspect about crime, especially financial crimes. Generally, we note with certain admiration, the zeal the agency has shown in the execution of its brief. The problem with it, however, is one of seeming partiality and the zeal that borders on exuberance with its manifestation as an unguided missile. Indeed, the agency is full of excesses. This is where the profundity of this official intervention can be understood and commended. The clarifications are clear, as they are loud: the EFCC and the allied agencies are under the authority of the law and that they can be reined on. This point should be properly understood by them. Consequently, we expect them to, henceforth; apply themselves strictly to the laws of the land.

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