August 14, 2007
Recently, the federal government literally stripped the EFCC of the powers to prosecute offenders by asking the agency to defer to the Attorney-General in such matters. What is your opinion on the issue?
It is a violation of the law setting up the EFCC and as you may know, it will undermine the war against corruption. What Nigeria should be doing at this moment is to make our anti-corruption laws more stringent and not to relax them as it now appears. To relax the laws at this moment is very dangerous because it would send a wrong signal to the international community and it will also encourage those who want to pilfer government and public funds to do so with reckless abandon. So, for me, the idea was not right.
The suspicion here is that as a political appointee, the Attorney-General is predisposed to partisanship in the selection of who will be prosecuted. Do you share this view?
That is very correct. Ordinarily, the Attorney-General ought to be somebody who is insulated from partisan politics once appointed. Being the chief law officer of the country he should be insulated for obvious reasons. But unfortunately in our country as it is today, this is not the case because he is appointed by the President, which makes him, almost inevitably, an errand boy of the President. So that worry is quite in place.
There should be no doubt that the Attorney-General is the chief law officer of Nigeria and so has the power to discontinue any case tried by even the EFCC. It is within the powers conferred on him by the constitution to check possible abuses by even the EFCC. But the problem is when they now take away the power to prosecute from the agency, it will cause bureaucratic delays and also, their decisions will not to be swift. Sometimes they may have evidence that one of the persons they want to prosecute is travelling out of the country and without any constraint, they will be able to arrest that person promptly. But if they have to consult and wait for permission of the Attorney-General, that would create problems and give the person enough time to escape. For now, we cannot trust the Attorney-General until we separate that office from that of the Minister of Justice.
Another issue that appears very vexing is the trial of ex-governors. Are you in any way satisfied with what is going on in that respect?
I am not satisfied with the way they have been given bail so easily. But the fact is that we cannot blame the court. What is important is that the court should speed up the trials. Ordinarily, I would have loved that their trials be expedited; a faster method of trying them should be devised. So far, we have only had about four of them undergoing trial. I think the EFCC should step on their throttle. They should increase the tempo because many people are already asking why is it that they are trying only four of about 31 former governors. So I feel that so far, even though we have commended them for having the courage to try these four governors, they must move on to ensure that the others are equally brought to justice.
What about the issue of plea bargain? Some people have complained that allowing some people to make a plea bargain and then come off with light sentences amounts to corruption. It’s like a man who steals a goat, returns it as questions are being raised and is allowed to go. What is your opinion on this?
No. Not at all. I have always said that plea bargain, even from the name, carries a commercial import. You only bargain in the market. Unfortunately this market sense that has been imposed on us by the IMF and World Bank seems to have diffused into many other aspects of our life in this country. Plea bargain is nothing but commercialising justice. The issue is about getting someone who can bargain more because it is the person who can hire solicitors who have bargaining skills that will get off lightly. That is the situation with plea bargaining. For me, it does not represent our culture and I hold the view also that it violates our rules.
Although many people have said it is also part of the EFCC tradition, for me it is not justifiable. It should be removed from our law because it is compounding of crime. In common law, compounding of a felony is criminal in itself. So why should we then allow the offence of compounding law in the magnitude of official corruption? So for me, plea bargain is arrant nonsense. It is corruption because it creates easy way for these people to escape from serious offences. We should not allow commercialisation of justice, especially as it affects criminal justice. It may be the culture in other lands but in Nigeria, people want to see those who have committed serious offences go to jail. So plea bargain should not be allowed, especially in official corruption.
Still on government’s position on the EFCC, the NBA President expressed support for the action of government. And some people have argued that a section of the Nigerian constitution actually empowers the Attorney-General to exercise that right. Do you subscribe to this position?
The NBA President was only expressing the position that the Attorney-General should be given the general superintendence over criminal prosecution in Nigeria. But that position is only possible where the Attorney-General is not being controlled by politicians. So I understand where he is coming from. But unfortunately, that cannot hold in Nigeria today where we have had Attorneys-General who don’t exercise the necessary independence of mind requirement of that high office.
You know that the concern is about the way people have been abusing the rule of law. I think he is coming from that stand point. But I think that the EFCC has now begun to respect the rule of law and unless they go back to their bad ways, we do not support any position that we should castigate the EFCC. So while we understand what the federal government is saying, our position is that Section 124 of the Constitution does not say that other laws cannot confer the power to prosecute on other agencies. It does not say that only the Attorney-General can prosecute. No. It does not say so. It says he can prosecute, retain or discontinue cases. That power is not exclusive of the right of other agencies to prosecute cases. What that section does is to give the Attorney-General the power to discontinue any case whatsoever without stating any reason, including cases with the EFCC. He has the power of nolle prosequi. But he must exercise that power in the public interest. Even if he exercises the power in a political manner, nobody can change it. It’s as an absolute power. The worst anyone can do is to remove him from office. That, I must emphasise, does not mean that other agencies cannot or do not have the power to prosecute. So if the EFCC has evidence to prosecute people who have committed fraud, it can do so.
After the media reported the new development, news came the following day that the government did not actually remove powers from the EFCC. But the position that the EFCC defer to the Attorney-General remains.
In effect, is the government actually serious about fighting corruption given that the withdrawal of powers from the EFCC would simply politicise the anti-corruption war?
This government, with due respect, is still a rookie government that is trying to learn the act of governance. So maybe you can pardon some incoherence and lack of cohesion on their part. But it is unfortunately happening in such a weighty matter as fighting corruption. Nigerians do not expect this kind of institutionalisation of faux pas to happen again because this is a very serious matter. Because as it is now, there will be a lot of confusion and with that, Nigerians will not accept that you are doing the right thing. They will feel that you are lying.
With the position of things as they are, what is the hope that the fight against corruption will go well now and in the future?
The issue about corruption is that it is a fight the man in the street can take up. We cannot and must not allow those who have been elected into governance to be the ones in the driver’s seat. They will never prosecute this war the way we want it. We must continue to insist that this war must be fought non-selectively, in accordance with the law and without any compromise. So, it is for the civil society, the media and Nigerians generally to continue to insist that this war must not be lost. Left for the people in government alone, they would take it as if it is business as usual. It must go beyond that and people should learn not to celebrate these rogues who have appropriated our collective wealth. The media should not celebrate them either. Otherwise, it would simply discourage honest people from doing the right thing. In my place if you stole once, nobody will ever believe that you are free from further doing so. There is a stigma attached to such people. But where we continue to celebrate rogues, deterrence is no longer being encouraged.People are no longer sure whether this government wants to fight corruption.
Are you hopeful that the people’s determination will not be hampered by the action of the government in clipping the wings of the EFCC.
No. The issue is that we don’t have any choice. We either fight corruption or accept whatever comes up. We must fight. Whether it is the Attorney-General who is prosecuting or it is the EFCC, the only important thing is that this war must be fought. Just look at our society. Look at how everything has been since independence. Everything has been corroded and people who honestly earn their living cannot survive. It is only the thieves among us who build houses upon houses, stack their accounts with money when people cannot even afford to eat three square meals a day. We simply have no choice but to fight corruption if we want to survive as a people and country. It will get to a point where people would want to go and pull down the houses of these rogues. Believe me, it will get to that point someday. That is why I advise that the government must sincerely do something about the situation now in order to prevent anarchy.
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