December 8, 2007
Introduction
Notwithstanding that the Umaru Yaradua regime is a product of a flawed election its avowed commitment to operate under the rule of law was greeted with approval by Nigerians. This was understandable given the bitter experience of Nigerians under the Olusegun Obasanjo administration when executive lawlessness was the order of the day. Even though the current political dispensation has been said to have zero tolerance for corruption the lackadaisical handling of the scandalous N628 million renovation contract in the House of Representatives and the frustration of the British government by the Federal Government in the moves to repatriate the looted wealth of the Nigerian people have questioned the commitment of the Yaradua regime to sustain the fight against corruption.
Ethics and Governance
If ethical governance is narrowly defined as the constant attempts by governments to legitimize themselves through the establishment of a transparent and honest leadership the battle against corruption is one of the major indicators of shaping it. Other indicators, deeply rooted in the cherished concept of the rule of law, embrace the emphasis on accountability and transparency, media scrutiny on the government, and the moral behaviour of political leaders and politicians. Governance is aimed at creating a regime based on honesty, integrity and free from the perennial problem of corruption and double standard. In the context of Nigeria, the question of ethical governance can be examined against the background of the inconsistency and hypocrisy in the application of the rule of law and the fight against corruption by the government.
In order to guarantee accountability and transparency in the governance of the country the “State shall abolish all corrupt practices and abuse of power.” Accordingly, certain ethical standards have been prescribed for all public officers. Since most public officers claim to be either Moslems or Christians they are usually sworn with the Holy Quoran or the Holy Bible as they subscribe to the Oaths of Office and Allegiance. Upon the assumption of office every public officer is required to abide by the Code of Conduct for public officers outlined in the Constitution.
As the Code of Conduct was found inadequate in dealing with the menace of corruption and other economic and financial crimes the government enacted the Recovery of Public Property Act 1984, Miscellaneous Offences Act 1984, Bank and Other Financial Institutions Act 1991, Failed Banks (Recovery of Debts) Act 1994, Advance Fee Fraud Act 1995, Nigeria Drug and Law Enforcement Agency Act 1998, Nigerian Deposit Insurance Corporation Act 1998, Independent Corrupt Practices and Other Related Offences Commission Act 2000, Economic and Financial Crimes Commission Act 2004, Monitoring of Revenue Allocation to Local Government Act 2006, Money Laundering Act 2007 and Public Procurement Act 2007. But in spite of the ferocity of the penal provisions of these laws corruption seems to be on the ascendancy in Nigeria.
The rule of law, the adoption of the right legal framework and of the necessary legislation, and the predictable and consistent implementation of the law are crucial to address the destructive effects of official corruption. Corruption involves deviation from laws and formal procedures that may have been rational or even socially functional. Into this vacuum in the rule of law came a rapid divestment of state assets. Official corruption is theft from a nation. It robs citizens of their potential and aspirations for a brighter future: a better education, better healthcare, and better access to housing, food and water, and other subsistence needs. It destabilizes rule of law and human rights that underpin democracy. It also fuels transnational crimes and threatens our collective security. Dishonest, corrupt, and unethical behaviour among public officials undermines the trust and confidence of the people that government can do "good" and advance the public interest.
The rule of law, transparency and accountability in government serve not only as means to counter corruption but also as fundamental conditions of good governance. When political will is shaped by, and harnessed from, the will of the people - all can truly share the dividends of freedom and prosperity. Inclusive and participatory governance by citizens along with, for example, an independent media, can provide strong checks and balances critical to institutionalize government accountability. But when political will is compromised, corruption can destroy democracy, and stifle the rule of law. This is especially evident in Nigeria where millions of citizens are clamouring for their government to break the cycle of corruption, for real reform and accountability, and for a better way of life.
It is clearly evident that the political leadership in Abuja lacks the political will to advance democratic reforms and implement anti corruption laws consistently and impartially. The lack of political will, coupled with double standard, is mostly evident in the government deliberate policy of relying on a diluted and politically motivated notion of the rule of law to justify many of its actions. What is needed therefore is for the government to do what it preaches by ensuring that no one is above the law, and by demonstrating a faithful commitment to the anti-corruption fight.
The Rule of Law and Corruption
In the case of the Military Governor of Lagos State v. Chief Emeka Ojukwu (1986) 2 NWLR (PT 18) 621; (2001) 39 WRN 155 the Supreme Court (Per Obaseki JSC) had this to say:
“The Nigerian Constitution is founded on the rule of law the primary meaning of which is that everything must be done according to law. It means also that government should be conducted within the framework of recognized rules and principles which restrict discretionary power… the rule of law means that disputes as to the legality of acts of government are to be decided by Judges who are wholly independent of the executive.”
There is no doubt that the work of institutions such as the EFCC and the ICPC has made notable contribution to the anti-corruption fight in Nigeria. But the persistent failure of the political authorities to follow due process of law and to comply with courts’ judgements when these are unfavourable to the government; or the deliberate obstruction of justice by the Yar’Adua government resulting from the non-cooperation of the Nigerian government with the foreign governments in corruption and money laundering charges against former public officers remain the biggest impediment to the anti-corruption fight and threaten to undermine or reverse the gains that have been recorded by the anti-corruption institutions. Because the government is not performing in accordance with standards consistent with ethical governance and the rule of law, it has failed to adequately meet the basic needs of the citizens. In addition, corruption has molested the entire political system, as a consequence of which the very legitimacy of the government has come to be at stake.
Since the inauguration of the government on May 29, 2007 President Yaradua has condemned the fraudulent April 2007 General Election in many public fora. But while addressing the opening ceremony of the just concluded Nigerian Judges Conference the President warned judges to desist from playing to the gallery in their decisions. The admonition was handed down as a result of the annulment of some of the controversial results of the April 2007 General election. And to demonstrate that the honeymoon with the rule of law was already over the Federal Government has disobeyed the order of the Federal High Court restraining it from recapitalizing the NICON Insurance. The violent invasion of the headquarters of NICON was reportedly carried out by a contingent of 50 mobile policemen armed with AK 47 rifles.
The rule of law or the principle that refers especially to government under law and to an unending search for reasonableness as law’s most basic norm is the cornerstone of constitutional democracy. It ensures that the state, or a set of institutions that possess the means of legitimate coercion, exercised over a defined territory and its population, exercises its power in a reasonable and not an arbitrary fashion. Proper checks and balances need to be in place to minimize the opportunities for the abuse of state power. However, given the centrality of the powers of legitimate coercion in its definition, a state can intervene effectively in all aspects of life of those citizens within its boundaries. This means also that people in government, and particularly those in the executive, can abuse their powers and positions to promote their own interests or those of their friends and allies at the expense of public interest, through arbitrary acts and corruption, or through inconsistent application of anti-corruption laws.
Official Frustration of Foreign Anti-Graft Agencies
A few days ago Britain complained about the breach by the Nigerian government of the Mutual Legal Assistance Agreement between the two countries especially in the fight against financial and economic crimes committed abroad by Nigerian public officers. According to reports, two of the eight requests for assistance have been refused. It thus seems that politicians and associates of those close to the seat of power in Abuja are protected, despite strong evidence of corruption and money laundering against them.
In view of the untold damage which the official cover up in the case of Chief James Ibori, a former governor of Delta State has done to the country’s international image it is germane to review the facts. Before the advent of the current administration the Metropolitan Police in the United Kingdom was investigating the governor for alleged laundering of the sum of ₤35 million. A British Court had frozen the accounts of the said governor. The freezing order was however lifted on the strength of a letter written by the Honourable Attorney-General of the Federation who insisted that he had not requested for the freezing of the ex governor’s assets pursuant to his powers under the Agreement Between Nigeria and the United Kingdom including Great Britain and Northern Ireland Concerning the Investigation and Prosecution of Crime and the Confiscation of Proceeds of Crime. Embarrassed by the publication of the letter in the media President Yaradua directed the office of the Attorney-General and the Economic and Financial Crimes Commission (EFCC) to cooperate with the Metropolitan office in the investigation of the governor. While the Attorney-General was in Singapore to attend the last Annual Conference of the International Bar Association in October 2007 the EFCC handed over some vital documents to the visiting Metropolitan Police. But the Honourable Attorney-General has written a letter to the Home Secretary in Britain wherein he stated that he did not authorize the release of the documents collected from the EFCC by the Metropolitan Police. While relying on the provisions of the aforesaid Mutual Legal Assistance the Attorney-General of the Federation accused the EFCC of not following “due process” in collaborating with the Metropolitan Police in the investigation of the former governor.
Although the EFCC was reported to have sent to the Attorney-General of the Federation the list of documents made available to the Metropolitan Police it is pertinent to point out that by virtue of Section 6(k) of the EFCC Act 2004 the Commission acted pursuant to Section 6(k) of the EFCC Act 2004 which empowers the Commission to deal “with matters connected with extradition, deportation and mutual legal or other assistance between Nigeria and any other country involving economic and financial crimes.” In view of the unambiguous provisions of the law the interference of the Attorney-General in the investigation of the case is totally illegal as his powers under the Bilateral Agreement with respect to economic and financial crimes are subject to the EFCC Act. For the avoidance of doubt Article 1(3) of the Agreement provides that:
“This Agreement shall not prevent or restrict any assistance or procedure under other international conventions or arrangements or otherwise, or under the laws of the Contracting Parties.”
Accordingly, under Article 46(17) of the United Nations Contravention Against Corruption which has been ratified by Nigeria, a request for mutual legal assistance “shall be executed in accordance with the domestic law of the requested State Party and to the extent not contrary to the domestic law of the requested State Party and where possible, in accordance with the procedures specified in the request.”
Having regard to the combined effect of Article 1(3) of the aforesaid Mutual Agreement and Section 6 of EFCC Act 2004 it is submitted without any fear of contradiction that the EFCC has painstakingly followed due process in collaborating with the Metropolitan Police in respect of the investigation of the money laundering offences alleged to have been committed by Chief Ibori in the United Kingdom. While the British lawyers of the ex-governor are being assisted by the Honourable Attorney-General the Metropolitan Police is being accused of weeping more than the bereaved. Indeed, the Justice Minister is reported to have convinced President Yaradua that it is not in the national interest to expose our corrupt leaders to ridicule by having them tried abroad even when they contravene money laundering laws abroad. (See The Vanguard, November 30, 2007). In view of the apparent conflicts of interest between Chief Aandokaa and the Nigerian people in the anti-corruption crusade the Yaradua regime should sack him as the Attorney-General of the Federation without any further delay.
Transparency, Accountability and Corruption
Related to the concepts of ethical governance and the rule of law are the concepts of transparency and accountability. For democracy to work, citizens must have access to information about what their government is doing and how decisions have been reached. Transparency in government means responding to the citizens’ “right to know” through facilitating the access to information and also their understanding of decision-making mechanisms. This can be achieved through accurate, reliable and relevant financial reporting based on published accounts and regular audit reports; freedom of information act which allows access to records of and rationale for decision-making; televised parliamentary debates; etc. Government accountability is facilitated by approaches, mechanisms, and practices to ensure that its activities and outputs meet the intended goals and standards.
The twin concepts of transparency and accountability go hand-in-hand since without adequate information on performance, outputs, and justifications, it is difficult to hold governments accountable for their actions. Giving account of public resources and policy decisions is an integral part of democracy. Transparency and accountability serve as a check against mismanagement and corruption on the part of public officials. Thus they are pillars of sound governance which are so crucial to winning and maintaining the confidence of citizens, investors, and the international community.
However, as stated above, the chief impediments to transparency and accountability in government in Nigeria are lack of strong and committed leadership, and lack of political will. These impediments make difficult dealing with corruption. Overall, the lack of transparency and accountability of successive governments has made possible the divestment of state assets in favour of personal interests rather than public interest, allowing the massive diversion of huge public funds into private pockets. When President Yaradua and Vice President Jonathan Goodluck gave copies of their asset declaration documents to the media Nigerians saw a marked difference between transparent leadership and the hypocrisy of President Obasanjo whose primitive accumulation of wealth is shrouded in secrecy. Regrettably, the government has not been able to compel his ministers and other top government officials to publish their assets. In fact, the Code of Conduct Bureau is under intensive pressure from the Attorney-General to discontinue cases filed against 18 PDP governors for failing to declare their assets in contravention of the Code of Conduct for public officers.
Right from its inception, many doubted whether the Yar’Adua government would be different from the apparently corrupt Obasanjo administration. But events of the past six months seem to confirm that this government, like its predecessor, may have little to offer in terms of establishing good governance, transparency and accountability, and the rule of law which our people have craved for many years. Hence the terms ‘rule of law’ and ‘due process’ are being manipulated by government to cover up corrupt practices and abuse of office. For instance, when the former Speaker of the House of Representatives, Mrs. Patricia Olubunmi Etteh was accused of awarding N628 million renovation contracts without following due process the Presidency washed off its hands like Pontius Pilate.
In spite of the unfortunate death of a House member and the postponement of the presentation of the national budget by the President the Federal Government claimed that it was an internal affair of the House which had to be resolved under the rule of law. Meanwhile the PDP of which the President is the leader threatened to recall members who opposed Mrs. Etteh. On her own part the former Speaker set up the Due Process Group which insisted that she had to preside over the consideration of the report of the Idoko Panel contrary to the principle of nemo judex in causa sua. But for the vigilance of Nigerians and the courage of the Integrity Group in the House that corrupt leadership would still have remained in office.
Given these types of examples on the part of the leadership, and the poor working conditions of most government workers, it is not surprising that government workers lower down the ranks have turned to “petty corruption,” often simply to survive. The net impact of this systemic corruption is a serious erosion of the rule of law, by a government that is supposedly committed to good governance, transparency, accountability and anti-corruption.
The Yaradua Regime and the Anti-Graft Agencies
In spite of the shortcomings of the ICPC and EFCC it is my candid belief that but for the intervention of both anti-graft agencies some military adventurers would have returned to power under the guise of fighting corruption and abuse of office. Instead of strengthening the ICPC and EFCC and Code of Conduct Bureau to make them more effective the Yaradua regime is making vigorous efforts to subject the anti-graft agencies to executive control.
Since the take over bid was frustrated by Nigerians there have been official moves to shield certain former political office holders from prosecution for corruption and related offences. In order to assist the government in frustrating their prosecution some of the former political office holders have obtained ex parte orders to restrain the Economic and Financial Crimes Commission (EFCC) from arresting, investigating and prosecuting them in any manner whatsoever and howsoever. As I did warn a few weeks ago if the dangerous trend is not quickly checked armed robbery and murder suspects would soon obtain interim or interlocutory orders to restrain the State from challenging their nefarious activities.
The attention of lawyers and judges engaged in conferring extra-constitutional immunity on certain influential persons should be drawn to the case of Attorney-General, Ondo State v. Attornye-General of the Federation (2002) 27 WRN 1 at 130 where the Supreme Court (per Katsina-Alu JSC) held:
“Corrupt practices and abuse of power spread across and eat into every segment of the society. These vices are not limited only to certain sections of the society. It is lame argument to say that private individuals or persons do not corrupt officials or get them to abuse their power. It is good sense that everyone involved in corrupt practices and abuse of power should be made to face the law in our effort to eradicate this cankerworm. This I believe is the intention of the framers of our Constitution.” When the Honourable Attorney-General of the Federation attempted to take over the case of FRN v. Chief Orji Kalu without notifying the EFCC in advance the Chairman of the ICPC, Justice Emmanuel Ayoola called for inter-agency consultation on the part of the office of the Attorney-General. The retired Supreme Court Judge was accused of mischief by the Honourable Attorney-General. In his contribution to the debate on the role of the Attorney-General Chief Wole Olanipekun (SAN), a former President of the Nigeria Bar Association described the Chief Law Officer as the “Commander-In-Chief in the prosecution of criminal cases in Nigeria.” With profound respect, the powers of the Attorney-General of the Federation to initiate, take over, continue or discontinue criminal proceedings in courts are limited to federal offences.
It is common knowledge that Chief D.S.P Alamieyesigha, a former governor of Bayelsa State has been convicted for corruption by the Federal High Court. Instead of advising the Code of Conduct Bureau to discontinue the prosecution of the former governor at the Code of Conduct Tribunal on the ground of his conviction by a criminal court the Honourable Attorney-General has illegally taken over the case. While the powers of the Attorney-General to take over or discontinue any criminal case arising from a federal offence cannot be challenged it is germane to point out that the Attorney-General lacks the power to take over cases pending before the Code of Conduct Tribunal as they are not criminal proceedings. The Code of Conduct Bureau should therefore be allowed to continue to handle matters relating to the violations of the Code of Conduct by public officers without any interference from the office of the Attorney-General or from any other quarters whatsoever.
Although the Attorney-General can take over cases commenced by the ICPC and EFCC that does not mean that both anti graft are extensions of the chambers of the Honourable Attorney-General. Or are we to accept that the Inspector-General of Police, Comptroller General of Customs, Director General of National Agency for Food and Drug Administration and Control (NAFDAC), Corps Marshal of Federal Road Safety Commission (FRSC) etc are under the Attorney-General simply because cases initiated by them can be taken over by the Attorney-General?
Those who desirous to put the anti graft agencies under the Attorney-General may wish to propose the amendment of Section 3(14) of the ICPC Act 2000 which provides that the commission shall “not be subject to the direction or control of any other person or authority” and Section 37 of the EFCC Act 2004 which requires the EFCC to submit a report of its activities to the National Assembly. Although the Senate had requested the President to wade into the face off between the Attorney-General and the anti-graft agencies the President has apparently supported the diversionary tactics which have slowed down the anti corruption crusade. Hence the Attorney-General has confidently extended the face off to the Metropolitan police and other foreign anti-graft agencies that are involved in the recovery of looted wealth belonging to the impoverished people of Nigeria.
Corruption and Political Economy
As no honest government can be established in a country where the majority of the citizens wallow in abject poverty it is high time government reviewed its market-oriented economic programme inspired by imperialist forces. It has been rightly observed by Major-General Ishola Williams that “even in western countries, corruption is on the increase because of the close association between western democracy and market capitalism which generates inequalities in the political resources to which different citizens who are economically unequal are unlikely to be politically equal. In a country with a capitalist economy, it appears full political equality is impossible to achieve.”
Since the Nigerian Constitution has clearly stated that the welfare and security of the people shall be the primary purpose of government Nigerians must demand an end to a policy that allows politicians who constitute 3% of the population to allocate to themselves 85% of the revenue generated by the Government. If the Federal Government could withdraw US$12.4 billion from the foreign reserves to pay questionable external debts I call on the Nigeria Labour Congress to mobilize Nigerians to compel government to channel the bulk of the foreign reserves to fix collapsed social infrastructures, fund education, health, transportation and agriculture and create jobs for our army of unemployed youths that have taken to armed robbery, hostage taking and other violent crimes.
It has just been disclosed by the EFCC Chairman, Mr. Nuhu Ribadu that the sum of US$400 billion has been stolen from the national treasury by unpatriotic public officers. Ironically, countries that have always provided haven for such stolen wealth turn round, from time to time, to rate Nigeria as one of the most corrupt countries in the world. In his record titled, International Thief Thief (ITT) Fela Anikulapo-Kuti condemned western multinational corporations for promoting corruption in Africa. The judicial indictment of Siemens and Wilbros for bribing government officials and leaders of the PDP under the Obasanjo regime is a complete justification of the libellous imputations that lacerated the record. It is hoped that the Federal Government will be courageous enough to deal with the indicted foreign companies and their dubious local agents.
While the EFCC and ICPC have tried, in a hostile environment, to combat the menace of corruption and other financial economic crimes it ought to be pointed out that the fight against corruption cannot succeed without the support of the Nigerian people. In order to mobilize Nigerians to take up the battle there has to be a commitment on the part of the government to embark on a development agenda in which the people will be at the centre of socio-economic development. The pro-imperialist economic agenda of the PDP-led government which has accentuated poverty in the land has to be abandoned in the overall interest of the country. Instead of handing over the country to market forces government should control and regulate the economy in a way that our abundant resources are channelled towards addressing the crisis of underdevelopment.
Conclusion
Good governance is an extension of the principle of the rule of law. A society is well governed when there is rule of law, not a rule of man or woman. A modern state is extensively governed by rules and regulations, by complex guidelines and instructions, by a web of regulations, restrictive, prohibitive and penal procedures. As a fish starts getting rotten from the head, good governance starts sliding from the hands of the people when the top people in government put rules and regulations aside and start ruling by the rule of the thumb. As the experience of the Obasanjo administration has shown, a democratically elected government is not necessarily democratic and transparent - such a government can also be corrupt and unaccountable in practice. In my view, building the rule of law in Nigeria requires at the very minimum, the following:
1. Institutional independence of the legal system. To establish the rule of law in Nigeria requires the development of a relatively autonomous institutional legal and judicial structure to counterbalance the political power of the authorities in Abuja. But the rule of law in a normative sense is impossible without judges who can act independently, lawyers who have the freedom to represent their clients vigorously, and legal academics who may conduct research and educate students without political interference.
2. Legal rationality and justification. Another fundamental normative value of the rule of law is that it is “rational” and provides “justifications” for judicial decisions or political decision. The rule of law requires that “official decisions be justified in law, and therefore be reasoned and non-arbitrary with respect to general legal standards. This will include: assuring procedural regularity of the legal process, uniform application of legal rules and “treating like cases alike,” principled appellate review and oversight, rational consistency in law-making and law-applying, and empirical congruence between law in the books and law in practice.
3. Transparency. Public disclosure and the availability of legal decisions promotes the rationality as well as the legitimacy of the rule of law. It is also important in order for citizens to be informed of the “rules of the game” and to enable lawyers to provide reliable advice to clients. Public accountability is a key aspect of the rule of law, and it is not possible without public disclosure of important legal materials and information.
4. Human rights. Perhaps no other issue raises greater passion in political and legal discussions about Nigeria than the question of respect for basic human rights. The protection of fundamental human rights within a society is ordinarily thought to be a primary concern of the legal and judicial system. In Nigeria, working toward establishing the rule of law should include a discussion about how the legal and judicial system should act or should be made to act to recognize and protect internationally recognized economic, social and cultural rights.
It is absolutely important that the government should invoke national and international laws and institutions in the fight against corruption in a consistent and fair manner. However, without cooperation with other countries to recapture and repatriate Nigeria’s stolen wealth and resources, we will continue to witness half-measured and rhetorical commitment in the fight against corruption. Impunity of perpetrators will be the end result. Upholding the rule of law means total commitment to increased transparency and accountability in government, and to the fight against corruption. Establishing “ethics infrastructure”, rule of law and accountability requires more than a legal framework and rhetorical political commitment. In the final analysis, the biggest test is whether the government will ensure a consistent and even-handed application of anti-corruption laws even if it means going after those who brought it to power.Permit me to conclude this keynote address with the cautionary words of the Honourable Justice Emmanuel Ayoola, the Chair of the ICPC when he said:
“Let the warning be given that whoever seeks to fight corruption must first understand that practitioners of corruption come in different forms. There are closet practitioners of corruption. They must be exposed. There are deliberate practitioners of corruption. They must be severely dealt with. There are unwitting practitioners of corruption. They must be educated. There are practitioners of corruption who feel morally justified to practice corruption. They must be corrected. There are practitioners of corruption who re-define corruption to exclude their nefarious conduct. They must be neutralized. There are do-gooder practitioners of corruption who cover corruption with philanthropy in order to ensure an army of beneficiaries w ho will shield them from being brought to justice when caught in the nefarious act. Their hypocrisy must be exposed to public ridicule. The classification of the practitioners of corruption is endless. Classifying the practitioners of corruption is not a mere academic exercise. To the fighter against corruption, it is an indispensable tool in the formulation of the anti-corruption strategy and policy.”
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