In Nigeria of the Buhari era, fighting corruption and the
methodologies have become the mother of all public debates. The
renewed and heightened interest corruption has generated has somewhat
diminished the importance of other hot-button national topics, such as
fighting terrorism, adjusting to the free and ominous fall in oil
prices, and national unity.
Yet, the way the debate is going, the President may, despite his good
intentions, lose the requisite focus and dispatch; and ultimately
succeed only on the platitudes and prescriptions but not the cure.
Such signs are already there, judging by the President’s recent public
appeal to lawyers to, in essence, reject corruption briefs. On the
other extreme, the Sultan weighed-in by telling spouses to reject gift
from their husbands if they suspect it to be from fruits of
corruption. Both positions, as nice as they sound, suggest some
national frustration and a creeping lack of a strong and clear handle
on the task at hand.
But the most worrisome is the suggestion from some quarters that
Nigeria now needs special courts to succeed in fighting corruption.
All of these declarations, as well-intentioned as they are, sadly make
fighting corruption look like some rocket science, requiring the best
of ingenious efforts to succeed. It is my humble submission that,
instead of a rocket science, fighting corruption is actually a basic
science, comprised of basic laws, basic vision, basic guts, and basic
everything else we already have in place. Below are my reasons:
One: Contrary to the President’s thesis, lawyers are strictly bound by
their professional calling to accept any case that tickles their
professional fancy. In other words, a lawyer will not reject a brief
just because society considers the offense alleged as heinous.
Instead, it is the enormity of the crime, especially in terms of its
monetary impacts, that is often the best selling point to land the
best of lawyers. Amongst these are corruption cases which are
especially considered lucrative briefs because of the high personas
and the sheer quantum of the legal fees involved. Add the
constitutional presumption of innocence and guarantee of fair hearing,
then you can see the more reasons why the President’s admonition won’t
fly, despite the bully-pulpit, great intentions, warts and all.
Thus, lawyers are not to be expected to reject corruption cases, even
when patently egregious. So, instead of the appearance of suborning a
universal rejection of cases, what President Buhari requires is a
gathering of equally skilled (and yes – patriotic and
idealogically-compliant) lawyers to prosecute corruption cases. When
you have such lawyers, they will ensure that any corruption case that
goes to court will be backed by material, relevant and admissible
evidence that will have the best chance of clinching a conviction. I
say this because almost all the corruption cases lost by EFCC since
1999 stemmed from a systematic lack of sufficient and damning
evidence, if at all they made it to trial. Most were dismissed for
failure to prosecute, an euphemism for cases that lacked the basic
evidence to even sustain them on the court’s criminal calendar. The
few that remained in the courts are stacked on the back shelves,
gathering dust and constituting a national embarrassment.
Two: You don’t need special courts to try corruption cases. James
Ibori was not convicted by a special court but by some regular British
court. Plus, you can’t get a special court without an Act of the
National Assembly – a process likely to become dicey or gridlocked if
the alpha males of the National Assembly suspect that they might be
caught in the web of the procedural laxity such law is intended to
create. Further, if the ultimate intention is to water-down the
standard of proof in such courts, then a constitutional amendment
becomes a must, all with its many complications, difficulties and
profound political risks to the President.
Recall that it’s the Constitution, rather than any subsidiary law,
that conditioned criminal conviction on proof of guilt beyond
reasonable doubt – a rigid requirement that goes to the basic tenets
of Nigeria’s adherence to the common law and constitutionalism. The
possible exception lies in amending the laws to convert corruption to
a civil wrong. In such event, proving an act of corruption will
thenceforth be by a preponderance of the evidence but which, instead
of imprisonment, results only in civil forfeiture of the fruits of the
corrupt act.
Three: Given that special courts may be a tall order in the interim,
some special ordinary rules will do, because, as opposed to laws/acts,
head judges are empowered to promulgate such rules. I’m not talking of
rules of evidence or rules of criminal procedure, which even though
adjectival, still require federal legislative action. I am talking of
ordinary rules of court, especially those ‘calendaring’ rules judges
are inherently empowered to make; or even the garden-variety rules of
engagement which can be enforced piecemeal to move cases forward and
frustrate dilatory/unprofessional tactics. I say this because dilatory
tactics or lawyer-contrived delays contribute significantly to
frustrating prosecutorial efficacy in the courts.
This is where I agree with the President that Nigeria needs tough and
upright judges to help with the anti-corruption agenda. To be sure,
there’s a wide window here because, under the Constitution, the
President can appoint as many High and Appeal Court judges as he
likes; and nothing stops him from picking judges he considers
ideologically committed to the anti-corruption agenda. If Buhari takes
this part, his anticorruption body-language may then begin to stick
where it’s needed the most – the judiciary.
Four: We don’t have to wait for corruption to occur before fighting
it. It’s this sort of time-worn attitude that turns our entire
attention to the courts and, to some extent, the EFCC alone. In the
same vein, body-language – even though presidential, is minimally
effectual in fighting corruption. Corruption requires derring-do, and
the folks who succeed at it are known to possess a helluva of
derring-do, and are thus naturally undeterred by body-language,
especially coming from a Buhari now bound (or caged?) to act within
the limits of the Constitution. Times have changed.
Five: Instead of special courts, what we need is a whole-scale
reinvigoration of our non-judicial state institutions, such as the
FIRS, ICPC, Police, Bureau of Public Procurement, Accountants-General,
Auditors-General, Attorneys-General, Corporate Affairs Commission,
Land/Real Property Registries, the CBN, and others whose functions
bear some nexus to nipping corruption in the bud. The President will
be particularly effective here because, unlike the judiciary, all
these state actors are subject to some executive control or direction.
We also need non-state institutions, principal of which are the
commercial Banks which can be shepherded by strict CBN rules to be
vigilant to unusual and suspicious transactions. Corruption leaves
quantum paper trails that often lead investigators to the principal
culprits.
Finally, the current tactics of ‘shaming’ suspected corrupt public
figures, in place since 1999, doesn’t cut it, and has contributed to
making a mockery of the corruption fight. Shaming is when EFCC takes a
well-publicized action to arrest or invite those against whom a
petition has been preferred. This tactic transitorily panders to the
public hunger for a pay-back, but in as many few days the scandal is
off the radar and life goes on. We never hear of it again. Then, in a
lot of these cases, the pedestrian manner the EFCC handled or
mishandled the suspects and the abject lack of probable cause will
almost always lead to a successful application for enforcement of
suspect’s fundamental rights, which then stops the case in its tracks.
The foregoing is by no means exhaustive; but those close to President
Buhari (assuming they are reading this) should advise him to try them
out. Trying bears no risks but the opposite risks everything.
Aloy Ejimakor, a lawyer wrote from aejimakor@gmail.com
0803 265 1660 (texts only)