Mitigating Against Political Corruption In Nigeria: A Legal Framework

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*by Akintunde F. Adeyemo

 

Introduction: Corruption, Underdevelopment, And National Security
This paper begins with a grim assertion: Corruption threatens the existence of Nigeria as a civil society. While some Nigerians worry about dangers of terrorism and secessionism, rightly so, Nigerians should be more worried about the mother of all threats—corruption, which exacerbates those aforementioned dangers (more on that later). This paper strongly asserts that our current state of insecurity can be partly attributed to corruption.
Moreover, there is also a correlation between underdevelopment and corruption, for the latter brings about the formerWhen money meant for community, or regional, development projects is siphoned off by some corrupt politicians and bureaucrats, important community projects are delayed, and citizens are deprived of the dividends of democracy. This cycle of corruption causes citizens to grow distrustful of their government, and they start looking for ways to survive.
Some citizens, cognizant that their government and politicians are corrupt, don’t see the need to respect the rule of law, for if the rule of law were in place, these politicians wouldn’t have stolen taxpayers’ money in the first place. Having been abandoned by their own government, some citizens engage in various nefarious activities to survive. And lawlessness begets lawlessness. Occasionally, these abandoned people, who have nothing to lose, are also used as mercenaries by some political operatives to instigate some strategic and calculated violence.
This paper further asserts that corruption is also a threat to our national security. At the national level, which is where the bulk of the revenue is distributed to other regions of Nigeria, the embezzlement of those funds, meant to develop different regions, poses a serious threat to our national security. If money for a federal project in Abia state, for instance, is embezzled, and that project is abandoned, citizens of Abia state might feel neglected by the federal government. Realistically, such earmarked money may have been allocated by the federal government to state governors or senators, or representatives but, because of corruption, the money may never be spent on some designated projects.
When some lawless groups, such as Boko Haram and IPOB, tell their followers how corrupt the government and politicians are, they find people who are receptive to their narrative: The government doesn’t care about you, which is evidenced by their underdeveloped communities. Some Nigerians don’t need to be convinced that they have been marginalized by their own government.
Again, this paper asserts that corruption is partly responsible for the current national security crisis that bedevils Nigeria. If we don’t take some practical steps to mitigate against corruption, which will be thoroughly discussed in this paper, Nigeria risks becoming a pariah state.
The Crux of This Paper:
As previously stated, corruption is a fundamental problem, for two specific reasons: 1. It threatens our national security. 2. It brings about underdevelopment. The question then becomes: How can we mitigate against corruption? This is the crux of this paper, and the remainder of this paper focuses on proffering some legal solutions to this fundamental problem of corruption.
In a Nutshell, the Inner Workings of the Three Branches of Government:
Before this paper begins to discuss how to mitigate against corruption, it is imperative that readers understand how our government is structured. At its basic, there are three branches of government— legislative, executive, and judicial. Based on the principle of separation of powers, each branch performs unique functions that are distinct from others.
Traditionally, the executive is the mouthpiece of the government, which is tasked with executing and enforcing laws. A legislature is a collegiate body of the government, which enacts laws. And the judiciary is equally important, for it interprets and applies the law.
To better serve its citizens, all branches of the government must work collaboratively, for the smooth running of a government depends on the cooperation of all three branches.
Weak Laws Cannot Fight Sophisticated Crimes: With Her Hands Tied Behind Her Back, the EFCC Will Continue to Lose, But Her Fate Can Be Reversed
To effectively fight corruption, anti-corruption laws must be enacted, which means the legislative branch of the government must meet its constitutional obligations. Right now, current anti-corruption laws are too weak to effectively mitigate against corruption, and new laws are necessary to effectively combat corruption. While some people are skeptical of the effectiveness of new laws, this paper confidently asserts that its recommendations and guidelines, if strictly followed, will be a game changer.
After carefully reviewing the EFCC Establishment Act 2004, the enabling statute that authorizes the EFCC to carry out its statutory obligations, this paper asserts that, with its current composition, the EFCC is not sophisticated enough to fight sophisticated crimes that are constantly thrown at it. This paper doesn’t indict those hardworking men and women at EFCC, for they are also frustrated at the agency’s low rate conviction; however, this paper strongly asserts that there are certain legal loopholes that were weaved into the EFCC Establishment Act 2004, which hampers its effectiveness.
On paper, the EFCC looks like an organization that has enough power to fulfil its mission; however, practically, the EFCC isn’t all that powerful, evidenced by numerous cases that had been (and continue to be) lost due to some procedural tactics used by most defendants. In its brief history, an average Nigerian can name some serious public corruption cases that the EFCC was procedurally outmaneuvered by some defendants. As at the time of writing, its abysmal record of low conviction continues.
The Problem Is Corruption, But What Are Some Likely Legal Solutions?
This paper posits that, to effectively position the EFCC as the main anti-corruption outlet in Nigeria, the legislative branch, which is tasked with enacting laws, should immediately begin to work on amending the EFCC Establishment Act 2004. What are some changes that should be incorporated into this new bill? Well, let’s begin with the term of appointment of the “chairman of the commission.” Right now, “the chairman of the commission is appointed for a period of four years.” This paper recommends that the chairman of the commission be appointed for a single 10-year term, which allows for continuity and independence of the agency. Additionally, a single 10-year term insulates the chairman from any unnecessary political interference.
Another recommendation is that the EFCC should be reauthorized and designated as only an investigative arm, and be stripped of prosecutorial power, which should be delegated, through an appropriate enabling statute, to the Ministry of Justice. And EFCC should be reorganized as an investigative arm, with its independence intact, of the Ministry of Justice. This gives the EFCC the latitude to smartly use its resources to only thoroughly investigate crimes. After completing its investigation, the EFCC shall submit its findings and recommendations to the Ministry of Justice, which will then handle the prosecution, if any.
At the Ministry of Justice, the question of whether to prosecute should be decided by career prosecutors, not political appointees. If an assigned career prosecutor decides not to prosecute a thoroughly investigated case, which would ordinarily have warranted a prosecution, a legal memorandum should be written to explain his (or her) decision not to prosecute the case. Subsequently, this memorandum should be reviewed by a Panel of Prosecutors, which will serve as an internal mechanism within the Ministry of Justice, to determine the merit of the memorandum. The Panel of Prosecutors should consist of only career prosecutors with at least 10 years of experience. As the number one law enforcement officer, the Minister of Justice should chair this Panel, but he (or she) should not attempt to obstruct justice. Any decision not to prosecute a case should be published on the Ministry of Justice’s website, and subject to The Freedom of Information Act (FOIA)
We have to understand that corruption trials are won, or lost, based on some evidence presented before a learned judge in a court of competent jurisdiction, not in the media or in the public sphere. Additionally, when a lawyer represents his (or her) client in a corruption trial, his (or her) primary obligation is to suppress the bulk of evidence from being considered as relevant to the case at hand. You can’t blame a lawyer for vigorously defending his (or her) client; in fact, in the United States, if a lawyer fails to effectively defend his (or client), he may lose his license to practice.
And, legally speaking, there are numerous procedural tactics that may be used to suppress some evidence from being admissible. In the last couple of years, the EFCC lost bulk of its cases because of these procedural maneuvers. Because procedures used in the gathering of evidence will determine its admissibility in a court of law, investigators need to be well-trained in evidence-gathering methods/techniques. In order to fix this, during the investigative phase, experienced lawyers should be embedded with some investigators; this way, these lawyers can steer investigators in the right direction.
It is understood by most Nigerians that corruption is a threat to our sovereignty; in fact, just a few days ago, President Buhari acknowledged that “corruption is Nigeria’s number one enemy.” Why are we fighting corruption like it is Nigeria’s number one friend? Why are we not marshalling all the available legal tools to fight corruption? Why are we not insulating anti-corruption agencies, investigators, and prosecutors from any outside political interference? Why are we not thinking outside of the box? It is high time we put politics aside, and save our country from this death spiral. If we are serious about mitigating corruption, we must begin to take these proactive steps.
As previously stated, a case is won based on the weight of evidence and; overtime, legally speaking, evidence can become stale; witnesses may recount their stories; witnesses may refuse to testify; statute of limitation may run out; and these are some problems encountered by prosecutors. Some of these problems can be resolved by using a tracking system (IT specialists can help) to effectively manage the whole process; for instance, the tracking system can assign a specific time for an investigator to submits her findings and recommendations or alert a prosecutor that she has to prepare a report (again, IT specialists can help).
When a case drags on forever, tactics used by defense lawyers in Nigeria, the potency of evidence reduces, which affects the outcome of the case (usually favors a defendant). This is a serious problem that requires a quick fix; in fact, the judicial branch, frustrated by this stalemate, has swung into action: A few weeks ago, “At the 82nd meeting of the National Judicial Council (NJC), the Chief Justice of Nigeria (CJN), Hon. Mr. Justice Walter Onnoghen, has approved the establishment of the Corruption and Financial Crime Cases Trial Monitoring Committee (COTRIMCO) to be headed by Hon. Justice Ayo Isa Salami, a retired President of the Court of Appeal…the primary function of the committee include, [inter alia], regular monitoring and evaluation of proceedings at designated courts for financial and economic crimes nationwide; advising the Chief Justice of Nigeria on how to eliminate delay in the trial of alleged corruption cases.”
I personally applaud this smart decision by the CJN. Although I don’t know the type of case-management/tracking system that COTRIMCO will use, but Justice Salami, a man of impeccable character, should work closely with some IT specialists: In the American legal system, which I am familiar with, courts and lawyers work hand-in-hand with some IT specialists to better serve their clients; in Nigeria, our judges, prosecutors, and lawyers must work closely with IT specialists to better serve their clients, and to also bring effectiveness to the whole process.
Right now, in Nigeria, after years of litigating some corruption cases, prosecutors have reached a stalemate, for lack of substantial evidence or stale evidence (even in the United States, under the Federal Rules of Evidence, stale evidence may be deemed inadmissible). This means that a corrupt politician, who stole billions of naira a couple of years ago, will likely walk away; in fact, they (corrupt politicians) have all been walking away. Yes, most lawyers and courtroom observers will tell you that delay tactics work in Nigeria. Rather than dedicate their resources to pursuing unwinnable cases, the EFCC must begin to reconsider how to resolve old cases. In Nigeria, the enforcement of rule of law needs help: Technology and new statutory power (see above) are some practical examples of ways to better mitigate against corruption.
When you are attempting to stamp out corruption in Nigeria, which has deeply penetrated the soul of every Nigerian politician, you need more than laws, for you also need practical solutions, too: Anti-corruption czars and their subordinates must be protected from some undue influence from those that they are investigating. How do you protect them (czars and their subordinates)? You create a law that insulates them: In other words, adopt a “Layered Approach” in crafting an anti-corruption law; this law is crafted in such a way that includes layers of protection for all parties and entities involved. If you have been paying attention, you would have noticed that approach throughout this paper.
Any anti-corruption agency should be effectively insulated to make it less susceptible to external or internal influence, even from the presidency: The presidency should have no contact, except if necessary, with the chairman of the anti-corruption agency. And the chairman of the EFCC should never be compelled to divulge any information concerning an ongoing investigation with the presidency or other external officials not involved in the day-to-day activities of the EFCC.
If we are serious about combatting corruption, we must stress the need for the independence of those agencies tasked with executing these objectives. We should shy away from politicizing the issue of corruption; it is not about APC or PDP, but about safeguarding our collective future. Since we have a president, who has vowed to stamp out corruption, we also must also come up with some practical steps.
Because we live in a democratic society, some recommendations in this paper must be channeled through the appropriate branch of the government. Right now, the EFCC derives its statutory power from this enabling statute, the EFCC Establishment Act 2004. As it currently stands, some recommendations in this paper are outside of the scope of what the National Assembly envisaged when it created the EFCC Establishment Act 2004.
As discussed above, since the enactment of the EFCC Establishment Act 2004, corruption has become so sophisticated, and we need some sophisticated legal tools to fight it. It is high time that the National Assembly amended the EFCC Establishment Act 2004, to incorporate some recommendations in this paper.
Concurrently, this paper recommends that the National Assembly should create a committee to explore the likelihood of creating an Office of Inspector General in every ministry and parastatal. This serves as an internal mechanism to detect fraud at its root. As a guide, the National Assembly should look to the United States: In the United States, we have a statute called, “The Inspector General Act of 1978, as amended, statutorily established the Federal Inspectors General (IG) as independent and objective units within most agencies whose duties are to combat waste, fraud, and abuse in the programs and operations of their respective agencies.”
To be clear, the Office of the Inspector General won’t report to the head of the agency it monitors, for that strips its independence, but work collaboratively to prevent fraud. Because the military is also part of the government, any statute to this effect should mandate the creation of the Office of the Inspector General in the military, too.
As previously stated, like EFCC, the Office of the Inspector General should also lack prosecutorial power, for its statutory objectives should be limited to investigating potential fraud and making recommendations to the Ministry of Justice. After completing its investigation, the Office of the Inspector General shall submit its findings and recommendations to the Ministry of Justice, which will then handle the prosecution, if any.
You can yell and scream “restructuring” on Facebook, or in the media, but you have to start telling us what your restructuring will look like; this way, we can objectively critique your ideas. This paper presents a framework that, if implemented, will likely mitigate against corruption in Nigeria, but I need a few people to jumpstart this campaign: Are you ready to put some pressure on your representatives in the National Assembly? Are you ready to ask potential political candidates whether they are willing to consider some recommendations in this paper? It is not about me, for I am thousands of miles away from your daily struggles: Will you just read or will you share with your friends?
It is naïve to think that President Buhari, or the executive branch that he oversees, can unilaterally fight corruption; without the intervention of the legislative branch, President Buhari cannot holistically change the culture of corruption in Nigeria. And the judiciary is traditionally not a law-making body, for it is primarily tasked to interpret and apply the law, as enshrined in the Constitution, or as enacted by the legislature, or as delegated (through the enabling statute) to administrative agencies. Although, based on the doctrine of on the doctrine of the Stare Decisis, courts create binding precedential cases. Tellingly, however, the legislative branch holds the joker card.
Constitutionally speaking, we need strong anti-corruption statutes, which can only originate from the legislative branch. If the EFCC, or the executive branch, operates outside of the perimeter of the rule of law, defendants will walk away, and there is nothing you and I can do about it, unfortunately. If we can, however, maximally use the instruments and channels of government, we can obtain better results. In order for President Buhari’s war on corruption to have long-lasting effects, he must work with lawmakers to codify effective anti-corruption laws, for the fear of Buhari is the only thing that is currently mitigating against corruption. At the end of the Buhari administration, without codified laws, we will be back to square one. If recommendations in this paper are followed, President Buhari’s legacy will have a ripple effect for years to come.
Should in case these recommendations are implemented at the federal level, all states should be mandated to follow suit.
Going forward, my advocacy will largely be focused on how to implement these recommendations.
-Akintunde F. Adeyemo is a US based legal practitioner