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BEING A PAPER DELIVERED BY
OMORUYI A. OMONUWA SAN, OFR, FCIArb, FNIM, F.DRI, FIARN
ON 8TH MAY, 2017
AT THE NBA BENIN BRANCH LAW WEEK 2017

The issue of corruption is one that has plagued the country since independence. In 1966, following the first military coup which ushered in the dispensation of the military juntas, the reason given for the coup was corruption, and the purpose of the then military government was to bring an end to corruption.

However, almost 51 years since that coup, corruption rather than abating, has defied all medicine and become an incurable ulcer. Corruption is now a hydra-headed phenomenon, to the extent that when we successfully cut off one method of perpetuating corruption, two new methodologies spring up. The result is a non-ending circle which has continued to swallow the resources of the nation and distract successive government from their true task of nation building. No wonder the President, Mohammed Buhari, GCFR in his frustration at how much corruption has eaten into the fabric of our lives has said repeatedly that “If we don’t kill corruption, corruption will kill us.”

I need not be too expansive in painting the grim picture that is the consequence of corruption, as everyone here present would have felt its pinch in one way or the other. From our now accepted status as the kingpins of international fraud, to our rapidly dilapidating structures, a regressing economy, stagnated growth, abject poverty and more importantly a complete loss of faith in the institutions and processes of government.

In a country so blessed with various human, capital and natural resources, it has become a norm that every Nigerian citizen is a government onto himself. Nigerians are now charged with the duty of providing the most fundamental needs of the citizen i.e. electricity, water, shelter and basic education.

Chief Afe Babalola SAN, OFR in hisamicus curie brief before the Supreme Court in the locus classicus case of AG ONDO v. AG FEDERATION succinctly summarised the scourge that is corruption. He said
“In the last 20 years, the pervasiveness of corruption in all its ramifications has assumed renewed dimensions of cancerous proportions in Nigeria, to the extent that the Germany-based Transparency International, a respected independent, universal, non-governmental organization, ranked Nigeria in the unenviable position of being the most corrupt nation in the world for a consecutive period of more than 7 years. The unpleasant news was published in all national newspapers in Nigeria. In foreign countries, Nigerians are regarded and treated as corrupt people. Unlike other nationals, no bank would allow Nigerians to open a bank account as of right. The Nigerian green passport is synonymous with corruption. Consequently, at foreign airports, Nigerians with green passports are separated from other nationals.

While others are allowed to go freely, Nigerians are subjected to degrading and inhuman treatments and treated as pariah on the ground that they are Nigerians who hail from the most corrupt country in the world. National newspapers are filled with stories of looted money stashed in foreign banks. The stolen resources lost by Nigerians through endemic corruption an abuse of office have had inimical effect on the economy of the country…It is a notorious fact whilst in 1979 the US dollar exchanged with the Nigerian naira at the rate of US $1 to N0.85k, it has plummeted to the commercial rate of US $1 to N142 in 2002. In the corresponding period, whilst inflation rate in the United States rose by about 15% in real terms in 23years, it has risen about 2000% in Nigeria.

All these stark statistics are induced by all means in no small measure, by illicit capital flight engendered by corruption”

The picture painted by Chief Afe Babalola SAN, OFR has only gotten worse. The mass looting of the treasury under the democratic dispensation has threatened to surpass that of the military juntas. Stolen funds are now stashed in apartments, water tanks, farms, cemeteries, etc. The question then is where do we go from here?

I did not have the benefit of reading Chief Olanipekun’s paper before now, so, you would please pardon me if my contributions fall short of what you expect. Looking at the topic as framed, I have taken the approach of just talking to the topic, bearing in mind too that I am not supposed to be presenting any paper.

What exactly is corruption? To be honest, it covers a very wide specter, but simply it includes:
“The misuse of public office for private gain. The private gain could be for the official concerned or for another person…It encompasses any use of power by anybody for capricious or arbitrary uses or any other purpose foreign to what it is meant for. It means taking extraneous factors into consideration in arriving at an official decision. The decision here might relate to showing favour. It includes succumbing to undue influence, accepting gratification for favour or disfavor shown or to be shown, conferring unfair advantage upon (one’s self) or any relation or associate, offering an advantage as an inducement to or reward on account of award of contract and inflation of contract sum”

This definition is by no means exhaustive. However, owing to the damning and damaging effects that corruption has had on the nation as a whole, it is always a worthwhile venture to do whatsoever we can to rid ourselves of this cancer. However, since the 29th of May, 1999 we once again became a democratic state. With the entire world watching, we committed ourselves and solemnly declared that we shall respect and uphold all of the values and tenets of a democratic state.

Of all of the values of a democracy the rule of law is the most important. It is the ideal that every man is subject to the ordinary laws of the land, aptly captured by the saying “No one is above the law”. It also encapsulates the corollary of the principle i.e. every man has a right to the protection of the law. These values are constitutionally provided in the Supremacy clause of the 1999 Constitution (as amended) and the rights to fair hearing and not to be punished retrospectively for an offence not in existence at the time of the act or omission.

However, it is also the law in Nigeria that all arms of the government have a sacred and imperative responsibility to eliminate corruption. This is made evident in Section 15(5) of the 1999 Constitution (as amended) which provides

“The State shall abolish all corrupt practices and abuse of power.”

Therefore, the question is, how can we effectively tackle corruption thus fulfilling and whilst remaining within the ambit of the rule of law? Simply put, what is the most effective way to achieve an effective fight against corruption without negating the fundamental principles of the rule of law?

I have identified some key areas which I must however state Is not in anyway exhaustive.

 

The independence and impartiality of an effective Judiciary

It is a common knowledge that in a Constitutional Democracy such as ours, though all the arms of government are equal and independent, the Judiciary is primus inter pares. This is because the Courts are the custodians and defenders of the Constitution. More importantly the Judiciary is the only arm of government with the Constitutionally designated duty of interpreting the law and convicting persons who have acted in breach of the law. As such, the Judiciary is the primary defender of the rule of law.

In the light of the above the Judiciary is the most necessary tool in the fight against corruption. In order to give validity to the fight against corruption, and be seen to accord with the customs of fairness and respect for the rule of law that has become customary and expected among the comity of nations, the “fight” has to begin and end in the Court room.

Accordingly an independent, impartial and effective Judiciary is very important in the fight against corruption. In the last several months, the Judiciary has come under immense attack in terms of its image and projections to the average Nigerian. The arrest and prosecution of Judges left the legal profession as a whole in a quagmire which we are only beginning to emerge from. The manifold effect of the actions of the security agencies is that the integrity of the judiciary has been called into question, and more importantly the independence of the judiciary is now in doubt.

The situation got to such as bad state that Judges often times publicly adjorn cases to answer to the call of the Economic and Financial Crimes Commission or the Department of State Security. When then lies the last hope of the common man if the Judiciary is degraded to such a level?

However, being the most veritable tool in the fight against corruption within the context of the rule of law, the question is, how do we ensure the continued independence and impartiality of the Judiciary. The words of the learned authors of the biography of Honourable Justice Kayode Eso seems quite apt in this regard, they write
“However, it seems from Kayode Eso’s performance in Judicial office that the personal qualities of a Judicial officer, that is, his learning, character and industry are the primary factors on which the independence of the Judge largely depends. In other words, although a judge may be appointed under a defective constitutional arrangement, his independence and performance in judicial office will ultimately depend more on his personal qualities. Thus, As Professor Dias aptly observes, independence means far more than immunity from interference. It means that judges, once appointed are free to bring their own sense of value to bear in considering legislation and do not simply reflect the values of government”

Honourable Justice Uwaifo, JSC, CON in his valedictory speech given at the special session of the Supreme Court on 24th January, 2005 reechoed the above by alluding to the parlous situation which would arise if a judicial officer is tangled in the corruption web. He said
“Therefore in the performance of its office, a superior court (in particular) owes itself, for the sake of the dignity of the Judiciary, and owes the society, for the sake of maintaining the public’s confidence, and not least owes the parties before it, for the sake of justice, the duty to administer the law in a manner which ensures that there remains validity in the claim that the Judiciary is the last line of defence and hope of those who approach it. A corrupt judge is more harmful to the society than a man who runs amok with a dagger in a crowded street. He can be restrained physically. But a corrupt judge deliberately destroys the moral foundation of society and causes incalculable distress to individuals through abusing his office, while still being referred to as ‘honourable’. It is difficult to bring him to account under our system.”

I agree wholeheartedly with the position taken by His Lordship in the passage quoted above. Many factors militate against the independence of the Judiciary in Nigeria, from executive interference all the way to the bid of the average man to obtain “justice” at any cost. However, the greatest defender of the Judiciary is the Judiciary itself.

I am happy nonetheless that the Judiciary is rising to this great task. Even in this dispensation, everyday I hear of the decisions of various Judges in various jurisdictions declaring the actions and inactions of the executive and the legislature as ultra vires their powers and the Constitution.

However, more needs to be done. The independence and effectiveness of the Judiciary is vital to the fight against corruption and all hands need to be on deck to ensure same. For example, the domestication of the Administration of Criminal Justice Act in all of the States of the Federation needs to be accelerated to ensure speedy but fair trials and perhaps more steps needs to be taken to separate the Judiciary from the other arms of government especially in the area of finance.

 

The effective enforcement of existing anti-corruption legislation

The learned legal philosopher A. V. Dicey in 1885 in defining the concept of the rule of law said
“No man is punishable or can be lawfully made to suffer in the body or goods except for a distinct breach of law established in the ordinary courts of the land…Not only that no man is above the law… Every man, whatever be his rank or conditions, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunal.

Therefore, if every man be subject to the law, then the fight against corruption must also be in accordance with the law. However, the present administration, as is the case with previous ones, has made consistent calls on the need to “update” our anti-corruption laws.

Recently the Presidential Advisory Committee on Anti-Corruption recommended the creation of a Special Crimes Court under the auspices of a proposed Special Crimes Bill. This Court would be charged with the duty of attending only to matters concerning financial crimes, kidnapping, cyber crimes and drugs.

However, I am of the opinion that we have sufficient laws on our books to adequately combat the scourge of corruption. There are so many laws touching immediately or tangentially on corruption, that we do not need the enactment of new laws to combat corruption. Some of such anti-corruption legislation includes:

1. The Criminal Code Act Cap. C38, LFN 2004;
2. The Penal Code (Northern States) Federal Provision Act Cap. P3, LFN 2004;
3. Recovery of Public Property (Special Provisions) Act Cap. R4, LFN 2004;
4. Code of Conduct Bureau and Tribunal Act Cap. C15, LFN 2004 which enforces the Code of Conduct under the 1999 Constitution (as amended);
5. The Corrupt Practices and Other Related Offences Act Cap. C31, LFN 2004;
6. The Economic and Financial Crimes Commission (Establishment) Act Cap. E1, LFN 2004;
7. Central Bank of Nigeria (Anti-Money Laundering and Combating the Financing of Terrorism in Banks and Other Financial Institutions in Nigeria) Regulations, 2013;
8. Bank and Other Financial Institutions Act Cap. B3, LFN 2004;
9. Money Laundering (Prohibition) Act (as amended) Cap. M18, LFN 2004.

These are just a few of the legislations with anti-graft elements. Why then are we not making head way in the fight against corruption? The answer is very simple, a dearth of effective enforcement.

Recently a barrage of cases instituted by our anti-graft agencies were struck out primarily for lack of evidence or failure to prove the elements of the crime charged. What seems to be the norm is undue publicity of the arrest of citizens without much effort otherwise. More work needs to be done in the area of actually investigating, collating evidence and effectively prosecuting persons suspected of corruption. The anti-graft agencies should not play to the gallery and prosecute persons in the court of public opinion.

This is however not to detract from some of the good work being done by these agencies, especially in non-high profile cases. Everyday persons are charged and convicted of varying offences touching on oil subsidy fraud and money laundering.

It must be emphasized that there is a need for a more concerted effort in the enforcement of the laws that we have. There is a need for better and more covert investigations into the affairs of individuals suspected of corruption. There is a need to discreetly build solid cases and not to run to Court to obtain frivolous attachment and freezing orders that do not serve any practical purpose in establishing the guilt of the “suspect”.

Of recent the law enforcement agencies added the dimension of “sting operations” to their arsenal. The Oxford Advanced Learner Dictionary defines sting as “a clever secret plan by the police to catch criminals” . The Black’s Law Dictionary defines it as “An undercover operation in which law-enforcement agents pose as criminals to catch actual criminals engaging in illegal acts.”

Accordingly, from the definitions above it is clear that a sting operation is fundamentally a secret plan aimed at catching persons in the act of committing an offence or finding incriminating evidence against such person. Recently, in a so called sting operation, the Department of State Security (DSS) ransacked the houses of several Judges. Their action was roundly criticized and even described as Gestapo like!

Seriously, the operation by the DSS does not qualify as a sting operation. The DSS previously known as the State Security Service was created under Section 1(c) of the National Security Agencies Act Cap. N74, LFN 2004.

The duties of the DSS where clearly stipulated in Section 2(3) of the National Security Agencies Act Cap. N74, LFN 2004 which provides:
“That State Security Service shall be charged with responsibility for (a) the prevention and detection within Nigeria of any crime against the internal security of Nigeria;
(b) the protection and preservation of non-military classified matters concerning the internal security of Nigeria; and
(c) such other responsibilities affecting internal security within Nigeria as the National Assembly or the President, as the case may be, may deem necessary.

Relying on the provision of Section 2(3)(a) of the National Security Agencies Act Cap. N74, LFN 2004, the DSS has claimed that they have the powers to investigate, arrest and try persons in corruption related matters.

However, I disagree with this position. A holistic interpretation of Section 2 of the National Security Agencies Act Cap. N74, LFN 2004 would show that the Defence Intelligence Agency was created for the purpose of collecting and collating military intelligence on crimes that threatens national security, the National Intelligence Agency was charged with the responsibility of maintaining non-military national security outside of Nigeria, while the DSS was charged with the responsibility of maintaining non-military national security within Nigeria.

Thus, applying the ejusdem generis rule of interpretation, it is manifestly clear that “internal security” as used in Section 2(3)(a) of the National Security Agencies Act Cap. N74, LFN 2004 relates to internal threats to the sovereignty or security of Nigeria as a whole, not to corruption matters. The job of the DSS is specifically as regards intelligence gathering, not investigation of corruption matters.

More so, it is a cardinal rule of interpretation that the specific overrides the general. Accordingly, the Police, ICPC and EFCC whose enabling statutes have specifically empowered them with the duty of investigating and prosecuting corruption related matters would supercede Section 2(3)(a) of the National Security Agencies Act Cap. N74, LFN 2004 which simply contains the general phrase “internal security”.

I do believe that sting operations could be a veritable tool in the fight against corruption, especially if we believe that the fight must start and end in the Courts. It is elementary law that a conviction can only be secured on the basis of evidence, and in a criminal matter, the evidence must be such that proves the elements of the crime beyond reasonable doubt.

But as with all things, the rule of law remains paramount. The Administration of Criminal Justice Act and other adjectival laws have set out the parameters that must be strictly complied with in the investigation of offences by the Police and other law enforcement agencies. Accordingly, in order to retain validity and satisfy the requirements of the rule of law, the era of warrantless searches must be a thing of the past. Likewise, the use of ill-gotten warrants and excessive force must be discouraged. The time, periods and other procedural requirements within various enactments by the National and State Assemblies must also be strictly complied with.

One of the ways to investigate to ensure that these sting operations are effective is through the use of the newly introduced Bank Verification Numbers (BVN). The BVN regime started with the directive of the Central Bank of Nigeria in 2015. Indeed, it has been recently reported that BVN has been of tremendous value in the fight against corruption. The EFCC and other Anti-Corruption Agencies, have said that it is usually easy to identify the real beneficiary of the bank accounts through the Bank Verification Number (BVN), since an account holder can only have one BVN for all of his individual and company accounts.

In President Buhari’s speech at theCommonwealth event on “Tackling Corruption Together” held at the Commonwealth Secretariat in London on May 11, 2016, he stated thus:
We have implemented the Treasury Single Account (TSA) whereby all Federal government revenue goes into one account. This measure would make it impossible for public officers to divert public funds to private accounts as was the practice before. Through the effective application of TSA and the Bank Verification Number (BVN), we have been able to remove 23,000 ghost workers from our pay roll, thereby saving billions that would have been stolen.

I cannot end this sub heading without talking about the Executive’s new whistleblowing policy. It has supposedly led to the recovery of several amount of foreign exchange and Nigerian Naira stashed away by various persons. The war raging as to the ownership of the last stash found in Ikoyi is the stuff of a well written political drama. Only on Friday did the EFCC disclose that the Ikoyi apartment belonged to Mrs. Folashade Oke wife of the suspended NIA boss.

An official policy on whistle blowing is found in various countries of the world, and in some have specific legislations to protect the whistleblower. “Recognizing the role of whistleblowing in corruption-fighting efforts, many countries have pledged to enact whistleblower protection laws through international conventions. And, even more governments, corporations and non-profit organizations around the world are putting whistleblower procedures in place.”

For example in the United States of America there are two Acts of Congress i.e. Whistleblower Protection Act and the Whistleblower Protection Enhancement Act which protects federal employees who bring the existence of misconduct in government agencies to the attention of the appropriate authorities.

The phenomenon of whistleblowing is however new in Nigeria, and as stated above, it seems to be helping in the fight against corruption. However, it must be stated that there is always the potential for abuse. The financial windfall that a potential whistleblower stands to obtain is motivation for the potential criminalization of innocent persons with legitimate business endeavours.

Therefore, although the optics of finding huge sums of money stashed away in bunkers plays well for the anti-graft agencies, there has to be checks and balances to the whistleblowing policy. Whistleblowers should not replace investigators, and whistleblowing should not become synonymous with conviction.

I therefore recommend that a comprehensive whistleblowers policy be drawn up, and as is now common amongst the nations of the world, the aim should be to enact this policy via legislation which would provide adequate checks to prevent abuse and ensure that we remain within the confines of the rule of law.

 

Section 308 of the 1999 Constitution (as amended)

By the express provisions of Section 308(1) of the 1999 Constitution (as amended), no civil or criminal proceedings shall be instituted against the President and the Vice President or the Governor and Deputy Governor of a State while they remain in office. The import is clear; in the fight against corruption, the persons who are supposed to lead the fight are completely exempt from the reach of the law.

It is however the law as decided by the Supreme Court in FAWEHINMI v IGP that the Police and other agencies retain the power to investigate these individuals even when they are in office. Nonetheless, even when a strong prima facie case is established from an investigation, the hands of law enforcement agencies are tied as no action whatsoever can be instituted against such persons while they remain in office.

Sometimes in June, 2016, the News Media reported that the EFCC traced N1.2 Billion allegedly diverted from the Office of the National Security Adviser to a Zenith bank account belonging to the Ekiti State Governor, Mr. Ayo Fayose. As soon as he learnt that the account was under investigation Mr. Fayose made attempt to withdraw the balance of N500Million in the account. To prevent the Governor from transferring the fund the EFCC froze it and later obtained an ex parte Order of interim seizure. In challenging the action of the EFCC the governor said that his immunity had been violated. The said ex parte Order has now been vacated and access restored to the said account.

Section 308 of the 1999 Constitution (as amended) has been severally challenged; however the Courts have been constant in their interpretation of its status as an absolute immunity. The effect is that “since these officers (i.e. the President and the Vice President or the Governor and Deputy Governor of a State) constitute the chief executives of the Federal and State tiers of government and wield most of the governmental power likely to be abused” the inability to prosecute the makes a mockery of the anti-corruption fight. This is said with due regard to the fact that not all Governors or other chief executives are corrupt.

However, despite the various calls for the deletion of Section 308 of the 1999 Constitution (as amended), the ruling class has perpetually lacked the political will to do same, rather there has been a clamouring for the extension of the protection to legislative officers.

On the 18th of June,  2016 the Premium Times reported that Senators and speakers of some state Houses of Assembly have proposed immunity for presiding officers of the legislature. The decision was taken at a two-day retreat on constitution review, organised by the Senate Ad Hoc Committee on Constitution Review, with the theme, “Towards Ensuring Governance Accountability in Nigerian Federalism.’’ If the proposal succeeds and is inserted in the constitution, the President  and Deputy President of the Senate alongside the Speaker and Deputy Speaker of the House of Representatives would now share in the largesse of absolute immunity.

Speaking on the issue of the Immunity Clause aforemost Senior Advocate, Mrs. Funke Adekoya SAN stated
“I think it should be removed. The reason we have it is to stop people from distracting those who enjoy it during their tenures. But with the level of impunity in the country at the moment, I don’t think it still serves its purpose.If somebody is accused of a criminal offence, he should have the opportunity to respond to it. But when such an individual is covered by immunity, he cannot even respond. So, it should be removed.I do not think that anybody, including the President, should enjoy the cover of immunity. Everybody should be equal before the law. Besides, there is already the Public Officers’ Protection Act, which protects a public official in the course of his official duty. If the President or a governor has taken an action in the performance of his duty, he is already protected by the Act.So, why do they need the immunity clause? It is an opportunity to do things that they would not have ordinarily done.”

I align myself totally with the position of Mrs. Funke Adekoya SAN. I am strongly of the opinion that the idea that some categories of persons are above the law does not accord with the truest tenets of the rule of law. I therefore advocate for a Constitutional amendment to delete Section 308 from the 1999 Constitution (as amended), so that if the led be subject to the law, the leader should likewise be subject to the law.

 

CONCLUSION
The theme of this year’s NBA Benin Brach Law Week is indeed timely as corruption is an issue that affects us all. However, from the theme and my little address above, it would seem that corruption is a government-centric problem. This is far from the truth.

In the eternal words of the former American President, Mr. Abraham Lincoln, democracy is the government of the people, by the people and for the people. Accordingly, those who govern are from amongst us. As the Nigerian adage goes, you do not learn to use your left hand in old age.

The seeds of corruption are sown in our everyday life and start from amongst us the people! In our actions and inactions we continue to fan the ambers of corruption and water the seeds that would grow to choke and kill our national development. From the halls of the civil service to the corridors of private practice, corruption finds its stronghold.

Therefore, I am firmly of the opinion that if we are to fight a winning war against corruption, the fight must start amongst us the people! There must be a fundamental change in national perspective so that the interest of the nation as a whole and not our selfish personal or ethnic interest become paramount. There must be a move towards meritocracy, where the best and the brightest are elevated as against selfish regional nepotism.

I am firmly of the view that until we put in place the systems to achieve these lofty goals, we would continue to fight a losing war against corruption. I am one with the President when he says, if we don’t kill corruption, corruption will kill us.