By Dr Mike A. A. Ozekhome SAN
THE A – Z AND 24 DOS AND DONTS OF HOW TO FIGHT CORRUPTION
There is no gainsaying the fact that corruption is a ravaging disease, an odious cancer that has eaten deep into the cultural, political and economic fabric of the Nigerian society. It destroys the functioning of vital societal organs. A report by Global Financial Integrity has assessed that developing countries lost $5.9 trillion to illicit financial flows between 2002 and 2011. These outflows, mostly to tax havens and opaque banking regimes, are increasing by 10% every year.
The problem of corruption is not new to humankind even though it has reached unprecedented proportions in recent years. It is as old as society itself and cuts across nations, cultures, races and classes of people. Corruption is not an indigene of Nigeria. It is an international citizen, a global personality that mocks Nations and under-develops them. It has been argued that one of the major obstacles to the development of poor countries is corruption. Corruption is undoubtedly one of the greatest challenges of our time, a challenge that is not only leading to impoverishment and loss of lives, but also threatening the stability of society. In the words of Transparency International, Corruption is one of the greatest challenges of the contemporary world. It undermines good government, fundamentally distorts public policy, leads to the misallocation of resources, harms the private sector and private sector development and particularly hurts the poor.
Corruption is in itself a many-faceted phenomenon and the concept of corruption contains too many connotations to be analytically functional without a closer definition. The forms of corruption are diverse in terms of who are the actors, initiators and profiteers, how it is done, and to what extent it is practised. Also the causes and the consequences of corruption are complex and diverse, and have been sought in both individual ethics and civic cultures, in history and tradition, in the economic system, in the institutional arrangements, and in the political system.
It is beyond dispute that corruption is malaise which must be confronted by all well meaning Nigerians. No corruption in any facet of our national life should be tolerated in any form. This is because, corruption or corrupt practices, if not checked, will inevitably destroy the very fabric of the nation and also, threaten the peace, order and good government of Nigeria. I have, on many occasions, described corruption as the 37th State of Nigeria, and the wealthiest and most powerful. We should therefore kill it before it kills us.
DEFINITION OF CORRUPTION
Transparency International, defines Corruption as: the abuse of entrusted power for private gain. Corruption can be classified as grand, petty and political, depending on the amounts of money lost and the sector where it occurs. Grand corruption consists of acts committed at a high level of government that distort policies or the central functioning of the state, enabling leaders to benefit at the expense of the public good. Petty corruption refers to everyday abuse of entrusted power by low- and mid-level public officials in their interactions with ordinary citizens, who often are trying to access basic goods or services in places like hospitals, schools, police departments and other agencies. Political corruption is a manipulation of policies, institutions and rules of procedure in the allocation of resources and financing by political decision makers, who abuse their position to sustain their power, status and wealth”.
According to Inge Amundsen, the decisive role of the state is also reflected in most definitions of corruption. Corruption is conventionally understood, and referred to, as the private wealth-seeking behaviour of someone who represents the state and the public authority, or as the misuse of public goods by public officials for private ends. The working definition of the World Bank is that corruption is the abuse of public power for private benefit.
In other words, corruption is a particular (and, one could say, perverted) state-society relation. On the one side is the state, that is the civil servants, functionaries, bureaucrats and politicians, anyone who holds a position of authority to allocate rights over (scarce) public resources in the name of the state or the government. Corruption is when these individuals are misusing the public power they are bestowed with for private benefit. The corrupt act is when this responsible person accepts money or some other form of reward, and then proceeds to misuse his official powers by returning undue favours. For instance, it is an act of corruption when a state official takes a bribe to render some public service that is supposed to be free of charge, or demands more than the official cost of it.
The involvement of state officials in corruption is also emphasised in an alternative definition, where corruption is seen as a form of secret social exchange through which those in power (political or administrative) take personal advantage, of one type or another, of the influence they exercise in virtue of their mandate or their function. In sum, almost every definition (or rather conceptualisation), of corruption, has a principal focus on the state and politics (the corrupted), and a demand-oriented perspective.
On the other side of a corrupt act is nevertheless the supply side, and some theories and conceptualisations exist that emphasise the corrupters, those who offer the bribes, and the advantages they gain. These suppliers are the general public, or in other words the non-state society. The counterparts to the corrupt officials are any non-governmental and non-public individual, corporate and organisational, domestic and external.
The prevalence of corruption made the Nigerian judiciary take judicial notice of it. The judiciary has in several judgments, deprecated the prevalence of corruption in all strata of the Nigerian society. Uwais CJN (as he then was) in Attorney-General, Ondo State v. Attorney-General, Federation said: Corruption is not a disease which afflicts public officers alone but society as a whole. If it is therefore to be eradicated effectively, the solution to it must be pervasive to cover every segment of the society.
Mohammed, JSC, in the same case, declared that: It is quite plain that the issue of corruption in the Nigerian society has gone beyond our borders. It is no more a local affair. It is a national malaise which must be tackled by the government of the Federal Republic. The disastrous consequences of the evil practice of corruption has taken this nation into the list of the most corrupt nations on earth…
Still, Ogwuegbu JSC, in the same case in dissecting the menace of corruption, made reference to the preamble of Chief Afe Babalola, SAN, in his brief in the appeal where he said:
It is a notorious fact that one of the ills which has plagued and are still plaguing the Nigerian nation is corruption in all facets of our national life. It is an incontrovertible fact that the present economic, morals and or quagmire in which the country finds itself is largely attributable to the notorious virus which is known as corruption. This court is bound to take judicial notice of these facts and is so invited to so…’ It is from this background that I say that the ruling of the learned trial judge is commendable and it has the effect of sanitizing the polluted and corrupt society.”
As far back as 1968, Justice J.I.C Taylor had decried corruption in the Nigerian society in the case of Re: Mohammed Olayori, as follows:
2.CORRUPTION IS NOT A NIGERIAN CITIZEN:STOP GLAMOURARIZING IT.
Corruption was not invented by, nor is it peculiar to Nigerians. On the contrary, the problem of corruption is both an endemic and a universal one which affects all world nations but in varying degrees and forms. To quote Alatas (1990: 11), the problem is “trans-systematic; that is, it inheres in all social systems – feudalism, capitalism, communism and socialism. Corruption manifests itself with significant similarities and differences in different societies, depending on the particular system of power c distribution and the legal and moral norms operating therein.
According to Amnesty International, (2015), Based on expert opinion, the Corruption Perceptions Index measures the perceived levels of public sector corruption worldwide. Not one single country, anywhere in the world, is corruption-free. Sixty-eight per cent of countries worldwide have a serious corruption problem. Half of the G20 are among them.
Transparency Internationals (TI) Global Corruption Barometer 2006 (the Barometer) provides an indication of both the form and extent of corruption, from the viewpoint of citizens from around the world. It explores experience of petty bribery in greater depth than ever before, presenting information on the institutions and public services most affected by bribery, the frequency of bribery, and how much people pay. Its conclusion was that corruption as a worldwide problem.
Overall, these results show that people everywhere see corruption as a major problem. While there are differences between countries in the extent to which people experience corruption in their everyday lives, there is a widespread perception that the authority vested in institutions that ought to represent the public interest is, in fact, being abused for private gain. Some of the important findings are summarized below:
1. Experience of bribery is much more widespread in rest of the world than Europe and North America; police are most often bribed.
Corruption in many sectors: NGOs, religious bodies, police, civil service, military, education, the legal system/judiciary, media, parliament/legislature, health care and utilities is indicated. Although some improvements are shown but that cannot be taken as an indication that the problem of corruption has been solved.
2. Government performance in the fight against corruption is not felt adequate in most countries. People around the world tend to be very negative about their government’s attempt to fight corruption. Despite relatively good scores on the Corruption Perceptions Index 2006, nearly one in five respondents in the United States and the United Kingdom think that their government encourages corruption rather than fighting it.
3. The perception remains that political parties and parliament are most corrupt, followed by business and police
4. Political and business life are judged more affected by corruption than family life in most countries. Political life is viewed as being most affected by corruption, followed closely by the business environment.
5. Bribery of police worst the world over: According to the Global Corruption Barometer 2006, bribes are most commonly paid around the world to the police, and are substantially more frequent than to other services. This result presents enormous concerns regarding corruption in processes of law enforcement, particularly when viewed alongside the sector identified as the third most common recipient of bribes: the legal system and judiciary.
6. Bribery continues to plague people in poorer and transitional countries. Bribery in poor and transitional countries represents a major impediment, one that holds back human development and economic growth. The poorest in society are least able to afford to pay bribes and often must go without basic services as a result. And respondents in several African countries, such as Congo, Nigeria and Senegal, admitted to paying multiple bribes, indicating an even greater burden.
7. Bribery of Law Enforcers worst the world over
More than half the respondents in Africa who have had contact with the police in the past 12 months paid a bribe. In Latin America approximately one in three respondents who have had contact with the police paid a bribe, and in the NIS, Asia-Pacific and South East Europe the figure varies between 15 and 20 percent. Only a very small proportion of respondents from North America and the EU+ regional groupings have paid a bribe to the police, which is in line with the overall low rates of bribe-paying among the general public in these regions.
8. Registrations and permits require the biggest bribes
In case of Albania, Cameroon, Gabon and Morocco over 40% respondents paid bribe. Incidence in Africa shows that the largest bribes are paid to the legal system and judiciary, followed by the police and education system. The average bribe to each of these organizations is greater than US $ 100. The amount paid to utilities organizations, which are the second most commonly bribed, is much lower. For many people in these countries even such an amount is significant; for the poorest it would be prohibitive, with the result that they may be denied basic services due to an inability to pay bribes. Incidence in North America appears to be very small and in Asia quite appreciable.
9. Governments are underperforming in the fight against corruption
The majority of people around the world have a poor opinion of their government’s anti-corruption efforts. While one in five surveyed find government actions positive, more than half indicate that the government is not doing a good job. Perhaps most worrying is the fact that a full 15 percent of the public worldwide believe that not only is government not effective in its anti-corruption work, but that government is actually a source of the problem in that it encourages corruption.
10. Views on government efforts and public sector corruption do not always align
There is no correlation between a good score in the CPI 2006 and the public endorsement of a government’s anti-corruption efforts. This may be because some governments will have been in power for only a short period of time when polling is done for the Barometer, while a country’s performance in the CPI also reflects the performance of past administrations, not just the present one. In addition, good performance by government in anti-corruption can only come about through sustained change that translates into better quality of life for ordinary citizens.
11. Political parties and parliament still viewed around the world as most corrupt
The results of the TI Global Corruption Barometer 2006 show that political parties and parliament/legislature are perceived to be most affected by corruption. The police are also viewed rather poorly, a result which coincides with the findings presented earlier in this report that the police are the institution most likely to be bribed around the world. Identifying parties, parliaments and police as corrupt throws into question some of the most representative and authoritative institutions in a society, and puts at risk their capacity to perform credibly with any degree of transparency and integrity
3. HALT THE LOPSIDENESS OF THE ANTI-CORRUPTION WAR: GET NIGERIANS TO BUY INTO IT.
Political analysts have described the anti-corruption fight as lopsided focusing only on members of the opposition, and any perceived threat, critical voice, or opposition to the Government. The clear message the Buhari Administration is passing across to Nigerians and indeed, the entire world is quite simple. Once a person decamps to the APC, and no matter how corrupt he or she might have been perceived to be while in public office, or however weighty the corruption allegations on his neck, he or she automatically transforms into a saint. One can describe it as political “born again, wherein all his past sins of corruption in public office notwithstanding, he is forgiven by the APC-led administration. He is like Naaman, the leper who became cleansed of his leprosy after being dipped in River Jordan 7 times.
For the avoidance of doubt, it has been widely reported in the media that some key public figures in the Buhari Administration have grave questions relating to corruption with regard to their stewardship as governors in their respective states, and their roles in their present positions. The petitions against them are before the EFCC. Notable among them are Chibuike Rotimi Amaechi, former governor of Rivers State and current Minister of Transport and Aviation; Babatunde Fashola, immediate past governor of Lagos State and Minister of Works, Power and Housing, as well as the APC governorship candidate in Bayelsa State, Timipre Sylva. Having left office, these former governors no longer enjoy immunity under the Constitution. An anti-corruption campaign that is fair and balanced should not overlook these celebrated cases. Why, for instance, should the EFCC institute a corruption case against Senator Godswill Akpabio and not against Amaechi or Fashola? What of Babachir Lawal, the SGF, and Burutai, the Chief of Army Staff against whom grave allegations have been made regarding corruption?
Alhaji Abdulkadir Abdulsalam, the Labour Party National Chairman, in an interview, captures the present fight against corruption as follows: The fight against corruption is sectional, discriminatory and malicious and he is not consistent as expected. In Buhari s government there are corrupt people, yet he is charging some people for using government money to campaign for former president Goodluck Jonathan but he forgot that in the APC states, governors used states monies to sponsor his campaign; yet we have seen that his anti-graft campaign doesnt affect those ones. Even at that, Buhari should not tell Nigerians that he has no corrupt ministers in his cabinet. I think he is not sincere; he is economical with the truth.
According to Senator Shehu Sani:
Politics mixed with corruption will take us nowhere,…It is only in Nigeria that one says because somebody has contributed to the success of the ruling party, corruption charges should be withdrawn against him. But if he falls out of favour tomorrow, then, EFCC will bring up the remaining charges.
The President of Arewa Youths Consultative Forum, AYCF, Alhaji Yerima Shettima, captured it more robustly thus:
“Some of those who sponsored Buharis campaign are corrupt. Some of those, who are seen to be his allies are corrupt and you have them across board. So, if he must fight corruption, he must be prepared to make sacrifices because the fight is going to be dirty…Some of us are willing to support him in his fight against corruption provided it will not be bias or selective. For instance, the plan to probe past administrations should not be limited to the Jonathan administration, it should go beyond that…The president has no justification to limit the war against corruption to the last administration. If he wants to be seen as fighting corruption, he should begin from his home. All those who looted taxpayers money should be brought to book because you cannot have the society of your dream without sanitizing the society.
4.BUILD STRONG INSTITUTIONS, NOT STRONG MEN: THE FORMER LASTS, THE LATTER IS EPHEMERAL.
Building strong institutions is a central challenge of development and is key to controlling corruption. Well-functioning public management systems, accountable organizations, a strong legal framework, an independent judiciary, and a vigilant civil society protect a country against corruption. Institutional strengthening is thus expected to form a key part of countrys anti-corruption strategies.
Strong institutions create a strong state. It is imperative that oversight institutions be strong and carry out their duties meticulously. The fight against corruption in this country needs strong institutions, not strong men. The guards must realise their responsibility and obligation to the people who have given them their consent to be governed. The Civil Society must rise up to act as the Guard that guards the Guard and the Police that polices the Police.
In strengthening institutions to control corruption, countries have moved forward in three areas:
Building traditional systems of well-performing government: a professional Civil Service, sound financial management, disciplined policy making, and a balance of responsibilities among central, state, and local governments.
Strengthening the legal framework, including the judicial system.
Increasing transparency and introducing other measures that strengthen the role of Civil Society in demanding better government.
The strategy to tackle corruption must change. We must fight corruption institutionally, adhering to due processes and the rule of law. Buharis government must stop acting above the law. Obedience to court orders will not stop security operatives from watching those granted bail to prevent them from escaping. Law enforcement agents must also deploy technology to patiently monitor any corrupt judges, legislators, executive members and any other corrupt individual. They must gather enough credible and admissible evidence against such individuals before arresting and turning them over to be prosecuted. They must avoid sensational media trial of suspects which stigmatizes them unnecessary.
According to Ochereome Nnanna, no advanced country fights corruption without due process and the rule of law. State impunity creates drama, but it also scares away investors. It only waters the ground for civilian dictatorship and sectional perpetuation/domination.
5. BE TRANSPARENT AND ACCOUNTABLE TO NIGERIANS:RENDER ACCOUNT OF ALL MONETARY AND PROPERTY RECOVERIES SO FAR MADE.
The Economic and Financial Crimes Commission (EFCC), has been serially reported to have said that all looted funds recovered by it are paid into the consolidated revenue account of the Federal Government. The acting Chairman of the Economic and Financial Commission (EFCC) Ibrahim Magu himself, stated categorically, that the Commission recovered more stolen funds in the last eight months than the last 12 years of its inception.
There is no doubt that the Commission has made some recoveries unlesss we all, including the President and the entire citizenry, are being fed with well packaged sophistry. So, the question is not whether the Commission has actually recovered some funds and properties, but exactly how much the Commission has recovered has remained a mystery (which the Commission, which prides itself and pursuing transparency and accountability), is bent on fostering. The exact properties, amount and sums recovered and in what currency and from whom, and where they are must be made public and not to a select few as if recovered fund has entered into the dark realm of mysticism.
6.THE EFCC ,ICPC,POLICE AND ACJA ACTS ARE MERE STATUTES SUBJECT TO THE NIGERIAN CONSTITUTION: STOP ELEVATING THEM OVER IT.
Section 1(1) of the Nigerian 1999 Constitution expressly emphasises the supremacy of the Constitution over all laws and authorities, thus: This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. And Section 1(3) further states “if any other law is inconsistent with the provisions of this constitution, this constitution shall, prevail and that other law shall to the extent of the inconsistency be void”. The effect of these combined provisions of the Constitution is that all authorities and persons within the Nigerian territorial and legal jurisdiction shall exercise such powers and enjoy such rights as expressly entrenched in the Constitution. All extant laws, Acts of the National Assembly and subsidiary legislations must conform with the letters and spirit of the Nigerian Constitution, for such laws/legislations to remain valid.
In NWAIGWE & ORS v. OKERE & ANOR, the apex Court, dilated, per Onnoghen, JSC, as follows: “It cannot be otherwise as the Constitution is the supreme law of the land and it is settled law that any law or Act or section thereof that is inconsistent with any provision of the Constitution is null and void to the extent of the inconsistency”. In ORHIUNU V. F.R.N., it was held, by the Court of Appeal, per Galadinma, JCA, as follows: by virtue of section 1 (1) of the Constitution, the provisions of the Constitution take precedence over any law enacted by the National Assembly even though the National Assembly has the power to amend the Constitution itself.”
In AG OYO STATE v. NLC OYO STATE CHAPTER & ORS, it was adumbrated, by the same Court, per Adekeye, JCA: thus:
“Section 1(1) of the 1999 Constitution provides that- “This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.” Section 1(3) states that- “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail and the other law shall to the extent of inconsistency be void.” That reinforces that as from the 29th of May, 1999 – the Constitution is supreme and all other legislations in the land take their hierarchy from the provisions of the Constitution. The laws made by the National Assembly comes next to the Constitution, followed by the laws made by the House of Assembly of a State. If any law from any source other than the Constitution itself contradicts any provisions of the Constitution, that law is to the extent of that contradiction or conflict void and of no effect. The approach of the courts to the Constitution has been one of liberalism, a variation on the theme of the general maxim – ut res magis vale at quam pereat – (meaning it is better for a thing to have effect than to be made void). Thus where the question is whether the Constitution has used an expression in the wider or in the narrower sense the court should always lean where the justice of the case so demands to the broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose.”
It is therefore inconceivable that sections 293-296 of the ACJA would provide for remand of a suspect by a Magistrate Court for an initial period of 14 days, subject to a renewal for a fresh period of another 14 days. This is nothing short of the now abolished holden charge. This is contrary to the clear provisions of section 35(5) of the 1999 Constitution, which makes it clear that a suspect can only be detained for one day where there is a court of competent jurisdiction within a radius of 40 kilometers, and for only two days, or such longer period as the circumstances may be considered by the court to be reasonable. It is humbly submitted that the court envisaged in section 35 (5) is a High Court, not a Magistrate Court.
7. STOP THE AMBIVALENCE, SELECTIVENESS AND CONTRADICTIONS INHERENT IN THE ANTI- CORRUPTION FIGHT.
The emergence of Muhammadu Buhari on March 28, 2015, as President of the Federal Republic of Nigeria, came with high hopes and expectations. His administration was seen by many as one that will usher in a new dawn in the political and economic life of Nigeria. In his inaugural speech, President Buhari stated that he belonged to everybody and to nobody. Nigerians understood this statement to mean that anybody found wanting in the anti-corruption war must be punished no matter how close or cozy his/her relationship with the President is.
Unfortunately, about two years into Buharis government, it is becoming clear to even the blind that the President had merely employed elegant rhetoric when he stated that he belonged to nobody. This anti-corruption fight under Buhari is obviously lopsided. Renowned politicians, social critics and human rights activists today criticize the Presidents anti-corruption war in the country, and this makes headlines in the national dailies of the print, online and electronic media. Samuel Ogidan, is of the view that one of the cardinal foci of President Buhari when he came on board was to pursue with vigour the recovery of the nations stolen funds, which he has been doing with zeal, but this war is mono-dimensional (mainly on PDP members), and this pilfers the credibility of the anti-corruption war. Why has the crusade not reached to members of the APC The argument is that corruption is not opposition-infected or inflated, but a general malady that cuts across parties in the country, both those in the realms of power and the opposing group.
According to Daily Review Online, a cursory look at all that have been probed for corruption since the inception of President Buharis government and his avowal to fight corruption, reveals truths to the claims that like the PDP, APC members have very corrupt members too who have not been apprehended, but also engaged in financing past presidential electoral campaigns. The corruption searchlight seems stage-managed and highly regulated like a standing fan. It does not rotate round, but only blows where the placer positioned and determined its airy focus and benefits.
Indeed, how many of the present APC members are not former PDP members? It is on this mono-dimensional fight that Abdullahi Jalo remarked that the fight against corruption by the administration of Buhari since inception is one-sided and not holistic, prompting people to ask if the anti-corruption war is actually against corruption or a revenge mission. It is on this note also that Nnamdi Obi opines that the Buharis anti-corruption fight is selective and tilts against the opposition. The third-time Nigerian Deputy Senate President, Senator Ike Ekweremmadu, noted that the Buharis anti-graft war is meant to gag opposition (PDP) in the country. He stresses that an anti-graft that catches only members of the opposition and those with axe to grind with the government of the day is compromised This criticism is based on the fact that many Nigerians are decrying the one-sided nature of the fight, which makes it selective. However the declaration of the anti-corruption fight as selective is founded on the fact that there are some APC apex leaders in various positions in Buharis administration that are as corrupt and even more corrupt than the interrogated PDP leaders, many of whom are currently standing court trial.
Consequently, it is clear that his body seems to be speaking a language different from that of his utterances. While Buharis utterances avow that there would be no sacred cow in his war against corruption, the countrys anti-graft agencies have been openly selective in the prosecution of graft or perceived graft cases. The only persons who get the hammer for “perceived graft” are either members of the opposition PDP, or critics of the government. The litany of allegations (with clear evidence of corruption), against members of the President’s own cabinet has been left unattended to and in some cases, even justified, by the Government itself. This is obviously a President who “belong to somebody”.
8. MAKE JUST ONE EXAMPLE OF GOVERNMENT OFFICIALS SERIALLY ACCUSED OF CORRUPTION.
If the President and his anti-graft agencies want Nigerians to key into the anti-corruption war by first taking the war seriously, the government should help debunk the news now making the rounds that you can steal as you like as long as you are in the President’s cabinet or a member of the President political party- the APC. The President should order the anti-graft agencies to go after the corrupt politicians in his own cabinet and his party. He should first clean out his Augean stable. There is no need pontificating a message about how sanctimonious you are to an audience that sees through smokescreen of the blatant hypocrisy. There is a maxim of law as encased in the principles of equity that “he who comes to equity must come with clean hands”. In the eyes of anyone at the receiving end of perceived perversion of justice, it is clear injustice for instance, for a notorious mega thief to be the one sitting over a judicial tribunal sentencing a petty thief to prison, while the presiding mega thief is garlanded with honours.
9.OBEY COURT ORDERS: THE ALTERNATIVE IS CAPITAL FLIGHT, DISINVESTMENT, CHAOS AND ANARCHY .
Disobedience to court orders and disrespect for the rule of law have been identified as a key factor responsible for the inability of the Nigerian oil/gas sector to attract foreign investment. According to the Rule of Law Index 2015, by World Justice Project (WJP) survey on 102 Countries on how the rule of law is experienced by citizens, Nigeria is ranked 96 with 0.41 points. Denmark topped the list with 0.87, Norway 2nd position with 0.87, Britain 12th, Ghana 34th, South Africa 36th, Cote dvoire 76th, Liberia 83rd, Kenya 84th, Uganda 95th, Nigeria 96th and Venezuela trailed last position (in) 102 with 0.32 points. The indicators used in the study were; constraints on government power; absence of corruption; open government; fundamental rights; order and security; regulatory enforcement; civil justice; criminal justice and informal justice. Each indicator encompassed several elements. For instance, within constraints on government power is the question of whether government powers are effectively limited by legislative and judicial bodies; whether government officials are sanctioned for misconduct, and whether transition of power is subject to the law.
Today and in the recent past, in Nigeria, there is full scale disobedience to Court orders and the rule of law by government. Government has failed to obey court orders and has exercised unchecked powers. There is no institutional check of government power by the legislature, the judiciary, independent auditing and review of agencies and no effectiveness of non-governmental oversight by the media and Civil Society. There is no respect for the fundamental human rights of citizens such as right to life and security of citizens, due process of law and rights of the accused, freedom of opinion and expression, freedom of belief and religion, the right to privacy, fundamental labour rights, including the right to collective bargaining. The bottom line is that disobedience to court orders converts to disobedience to the rule of law and this scares away investors because they are not sure of getting fair justice after a dispute.
The Federal Government currently led by President Buhari must refrain from taking the laws into its hands or disobeying the decisions made validly by our courts of competent jurisdictions. It must also desist from choosing which laws or court orders to disobey and the ones to disobey. The present administration must not act in manners that suggest that it is above the law. Consequently, the Government is urged to immediately revisit all the court orders it is in violation of and ensure that it complies with them. Where the Government is dissatisfied with any of the orders, it has the right to appeal such orders in line with our constitutional provisions. To sustain and also consolidate on the gains of this democracy which Nigerians collectively fought for, the Buhari administration has no excuse on this. Colonel Sabo Dasuki who has been serially granted bail by three courts, including the ECOWAS court, must be released from prison forthwith. Nnamdi Kanu, crusader for IPOB, must also be released. Ditto Gabriel Suswan, former Benue State Governor who has been detained for over two months.
To this end, it is advisable that Government should ensure the supremacy of rule of law and not the supremacy of government officials. There is urgent need for government to begin to obey court orders and respect fundamental human rights of citizens. Powers of government officials should be limited by the law and subject to sanction for misconduct.
10.STOP FORUM SHOPPING: IT REDUCES YOUR WORTH AND DYMISTIFIES YOU.
According to the Court of Appeal, in the case of IBORI V. FEDERAL REPUBLIC OF NIGERIA, the Court defining forum shopping, held, Per AUGIE, J.C.A as follows:
“Forum shopping” occurs when a party attempts to have his action tried in a particular Court or jurisdiction where he feels he will receive the most favourable Judgment of verdict – see Black’s Law Dictionary 6th Ed. Forum non convenient is Latin for “an unsuitable Court”. It is -“The doctrine that an appropriate forum – even though competent under the law – may divest itself of jurisdiction if, for the convenience of the litigants and the witnesses, it appears that the action should proceed in another forum in which the action might also have been properly brought in the first place also” – see Black’s Law Dictionary” 8th Ed. See also The Longman Dictionary of Law 7th Ed., where it is defined as- “Doctrine whereby the Court refuses to exercise its right of juristic on because, for the convenience of parties and in the interest of justice, a claim should be brought elsewhere. The phrase means, not that the English Court ”is not convenient’ but the some other Court is more suitable.”
In this case, the Court of Appeal sitting in Kaduna ruled that the EFCC had no powers to prosecute Mr. James Ibori at the Federal High Court, Kaduna. In reaching its decision, the court of appeal wondered why the EFCC bypassed the Benin and Abuja divisions of the Federal High Court, to come to Kaduna.
In the case of OYINLOLA v. DAYO & ORS, the same intermediate Appellate Court, held, as follows:
“Forum-shopping is the practice of choosing the most favourable judicial division in which a claim may be heard. For example, a plaintiff may engage in forum-shopping by filing a suit in a Judicial Division with a reputation where the learned Judge awards heavy costs or damages to the successful party, or where the judge, belongs to the same religious affiliation, has a soft spot for a political party or they belong to the same social or sporting club, etc. The causes of forum-shopping are never closed. This is not different from Judge-shopping. Judge-shopping is the practice of filing several suits or applications in a Court or a district with multiple judges hoping that one or more of the suits or applications may be assigned to a particular judge that may be favourable to the plaintiff. Subsequently the plaintiff on getting his wish is non-suited or the other suits are withdrawn and struck out.If the liberty of filing a suit or an application in any Judicial Division of the Federal High Court is not to be used as an abuse of legal process, the determinant consideration should always be “forum convenience”. The Court in which an action should most appropriately be brought, considering the best interests and convenience of the parties, the witnesses, example, cost of litigation. The opposite of this doctrine is “forum-non convenience” should be the paramount consideration. This is the doctrine that though a Court may have jurisdiction, the Judicial Division in which the suit was filed was most unsuitable hence the Court may divest itself of jurisdiction, if for the convenience of the litigants and the witnesses, it appears that the action should proceed in another forum. See Order 2 rules 3-4 of the Federal High Court (Civil Procedure) Rules, 2009. The situation where proceedings that ought to be commenced or enforced in Lagos Judicial Division is instituted or enforced in Abuja, etc, do not consider the best interest of the parties and the witnesses. The end result is congestion of the Federal High Court, Abuja Division and subsequently the Court of Appeal, Abuja Division. In Obi vs. INEC (2007) All FWLR (Pt 378) 1716 Aderemi JSC held at page 1160 paragraph “F”-“G” that: “…jurisdiction should be examined not when it is invoked but when the cause of action arose.”
The practice by the anti-graft agencies, especially the EFCC, from my personal experience, seeks for appropriate court to prosecute a suspect in. This is to be deprecated, as it shows that the Commission lacks confidence in itself and in its winnableness of its case, but instead, prefers more favourable arena where justice can be rushed, perhapsextorted, and eventually crushed, or justice rushed. Be it known that justice rushed is justice crushed.
11.STOP FOULING UR ANTI -CORRUPTION LABORATORY: HALT THE ORCHESTRATED DENIGRATION OF THE JUDICIARY AND THE LEGAL PROFESSION.
In recent times, the pastime of both the Presidency and its anti-corruption Agencies have been to attack the judiciary in the court of public opinion, via the negatively creative use of the media. First, it was the President who stated earlier in his administration that his biggest headache and obstruction to the fight against corruption was the judiciary. Taking a cue from the Presidents statement, the various anti-corruption (and even the secret Police, DSS), have all tried to outdo the other on which Agency can denigrate the judiciary more.
It is conceded that in a free society, some criticism of the judiciary is inevitable. This is especially so at a time when there is a growing appreciation of the inescapable choices which fall to judges (particularly in the highest courts). It is naive to expect that commentators will be silent about such choices. Just as decisions of the other branches of government attract criticism and occasional calumny, important and controversial decisions of the courts will inevitably do the same. Nevertheless, deliberate humiliation of serving judges by the executive arm recently in October, 2016, when their houses were broken down by rampaging masked DSS operatives in the ungodly nocturnal hours of 12 midnight to 5 am, was done mala fide. The judiciary was reflectively and calculatedly staged by the executive for total denigration.
Distinctly bad have been the following features of the recent DSS and EFCC attacks on the judiciary. The personal targeting of identified judges; the attempt to intimidate them or to deflect them from fidelity to their oath of office to decide each case strictly on its merits. The unrelenting character and partisan political aspect of the attacks on the judges has been alarming. Little wonder, it was widely reported that some good judges preferred to resign. Once very proud and famous courts are criticised for buckling under political pressure. This cannot continue. The anti-corruption Agencies of the government must understand that they stand to gain nothing by gleefully but unjustifiably humiliating the judex.
12. YOU CANNOT WIN EVERY CASE WITH BRUTE FORCE:STOP TERRORISING AND WRITING PETITIONS AGAINST JUDGES WHO RULED AGAINST YOU AND STOP RE-ARRAIGNING ACQUITED DEFENDANTS IN OTHER COURTS: THESE MAKE YOU DIRTY AND VINDICTIVE.
The anti-graft Agencies must come to understand that even in the fight against corruption, there must be civility, fair-play and fair trial. The blatant violation of the provisions of the laws of the land has been anything, but right. For instance, a situation where a judge delivers a ruling unfavourable to the anti-graft Agencies and in response, the anti-graft Agencies withdraws the matter from that court and re-arraigns the defendant before another court is not palatable in the realm of justice, since it depicts that all the anti-graft agency wants is conviction by all means, and at all costs. Justice is not only for them. It is also for the defendant and the society. Even the ACJA protects the suspect and defendants rights.
Similarly, the now prevalent act of the anti-graft Agencies writing litanies of petitions against a judge whose only offence was not delivering a judgment in the anti-graft Agencies favour is repulsive. The subtle threats to judges, even in the courtrooms, by the anti-graft Agencies Attorneys in order to influence the judge to deliver judgment or ruling in their favour is unprecedented,worrisome and scandalous. The NBA and LPDC must begin to look into the conduct of these prosecuting lawyers with a view of reining their excesses. Some of these lawyers are known to have met judges in chambers to threaten, my chairman did not like that your ruling, hmm.
13. UPHOLD THE RULE OF LAW AND RESPECT FOR FUNDAMENTAL RIGHTS: THEY ARE INALIENABLE.
In its fight against corruption, the federal government must understand and recognise the inviolability of the fundamental rights of the citizenry, and the sovereignty of the law as against sovereignty of whims, as proceeding from the universally-shared values of humanity and from the entrenched traditions of democracy. The government must know and understand that personal rights held by an individual which are not bestowed by law, custom, or belief, and which cannot be taken or given away, or transferred to another person, are referred to as inalienable rights.
The Nigerian Constitution recognizes that certain universal rights cannot be taken away by legislation, as they are beyond the control of a government, being naturally given to every individual at birth, and that these rights are retained throughout life. In the case of NWEKE & ORS V. THE IG OF POLICE & ORS, the court of Appeal, reasoning along this line, stated as follows:
“Fundamental Rights are rights that are not only basic to the citizens; they are rights that have been entrenched in Chapter IV of the 1999 Constitution of Federal Republic of Nigeria. These rights are sacrosanct and very important to everyone within the borders of Nigeria. These rights are moulded into freedom blocks that fence the citizen from forces of unbridled aggression, oppression, repression, and authoritarianism. Where these rights are to be enforced in Court the Court within reasonable limits must do all that is necessary to cause a flourishing of these rights.”
Fundamental rights have been defined as basic moral guarantees that people in all countries and cultures allegedly have simply because they are people. In RANSOME-KUTI V. ATTORNEY-GENERAL OF THE FEDERATION, Eso, JSC stated that a fundamental right “is a right which stands above the ordinary laws of the land and which are in fact antecedent to the political society itself” and “it is a primary condition to civilized existence”. In the words of Jacques Maritain:
“The human person possesses rights because of the very fact that it is a person, a whole, master of itself and of his acts, and which consequently is not merely a means to an end but an end, an end which must be treated as such. The dignity of the human persons? The expression means nothing if it does not signify that by virtue of natural law, the human person has the right to be respected, is the subject of rights, possesses rights. These are things which are owed to man because of the very fact that he is a man”
Fundamental rights of the citizenry must be respected at all times, even during fight against corruption. As Justice Yakubu clearly stated in the case of OBIORAH v. FRN:
“it cannot be over-emphasized to both high and low that every person resident in this country has a right to go about his or her lawful business unmolested or unhampered by anyone else, be it a Government functionary or a private individual. The Court will frown upon any manifestation of arbitrary power assumed by anyone over the life or the property of another even if that other is suspected of having breached some law or regulation… Police officers must, therefore, be wary of being inveigled into a situation in which they find themselves becoming partisan agents of wrong-doers in the pursuit of a private vendetta. This kind of a show of power which is becoming too frequent in our society today must be discouraged by all those who set any store by civilized values.
14.STOP MEDIA TRIAL AND UNDUE SENSATIONALISM: THEY DONOT CASES WIN, BUT PERMANENTLY STIGMATISE SUSPECTS.
Media trial of suspects by the anti-graft agencies have assumed a notorious normal. It is generally known and widely viewed that instead of the anti-graft Agencies to have a water-tight case against suspect, they prefer to name and shame the suspect through the media instead of proving their case in a competent court of law. Their rationale for this mode of operation is not clear. One thing that is clear is that when it comes to trial of the suspects proper, the anti-graft Agencies mew and morph into loyal cats as against the perception of a roaring .tiger they portray in their media jamboree. Their prosecution of cases is suspect; their knowledge of the law, hollow; and their handling of prosecution grossly pedestrian. The Agencies, especially the EFCC, leaks a suspects statements to a select media, which gleefully publish them verbatim the following day.
Capturing the above scenerio vividly, Festus Okoye, had this to say:
Under the Act, the EFCC is not a media group or organisation and cannot behave like a media organisation. Rather than allow the media to report court proceedings, it has proceeded to report court proceedings and has been transmitting such to media organisations and some media groups have been using such statements without verification. But those in charge of EFCC understand the psychology of crime and the peculiar Nigerian way of assessing crime and criminality.
The EFCC understands that if it releases a humongous or mind boggling figure of crime and criminality against an individual or group of individuals and or organisation, no matter what happens in court or tribunal the Nigerian people would have taken a position. The commission understands the mood of the nation and the anger of the Nigerian people against some of the people that stole and or appropriated or misappropriated the commonwealth of the Nigerian people and its press statements and press releases target these segments of the Nigerian people. In the short run, the commission would name and shame some of the people that have harmed the country and maybe assist in lowering the incidents of corruption in the country. However, fundamental jurisprudential and rule of law issues are involved in what the EFCC and similar groups are doing in relation to the rights of suspects in the criminal justice system.
According to Raheem Oluwafunminiyi:
the EFCC has become a house of comedy and many cannot but stop laughing at the jokes the commission churns out on a daily basis to the vast majority of Nigerians. It has become a norm for the EFCC to first begin a media campaign against an individual, governor or politician, who either had lost through the ballot or fallen out of favour with the powers that be in Aso-Rock. There, the EFCC tells a listening public that they had slammed a criminal charge against most especially a governor, for laundering or to use the layman language, ‘stolen public funds’ to the tune of billions of naira. This has been a recurrent feature from the stable of the EFCC, yet after this media frenzy, what is heard is a conspiracy of silence and lost cases in different courts. It seems it is through the media that the EFCC gets its strength, yet after a corruption charge is read to an enthusiastic press,what is witnessed are series of adjourned court cases, conspiracy to sweep the case under the carpet or the illegal plea bargaining, which makes both the EFCC and the vast majority of the people who had been cheated through corruption more miserable while the politician who had been charged for corruption becomes triumphant and jubilant with smiles on his face for the deepening crisis in our polity.
I cannot agree more with the above submissions. The anti-corruption Agencies must jettison their unnatural taste for media trial and conviction if they really want to fight corruption. Nobody wins a case in the real court, except in the court of public opinion, by playing on the uninformed and subjective sentiments of mob hysteria. Cases are won before dispassionate judges, who convict a suspect based on solid evidence; not on spectacular media display of histrionics and sophistry.
15.INVESTIGATE THOROUGHLY BEFORE ARREST; DO NOT ARREST BEFORE FISHING FOR EVIDENCE: IT IS INHUMAN AND DEGRADING.
The courts have boldly, in a plethora of authorities, decided that it is illegal and unconstitutional for a security Agency, including the EFCC, to first arrest someone and hold the person in detention for the purposes of investigation. Thus, for an anti-corruption agency to succeed in its quest to convict a suspect, there must be prima facie evidence which must have resulted from thorough investigation, before hauling in a suspect. What the EFCC does is to first arrest a suspect, detain him, wear him out mentally, physically and psychologically, and then fish for evidence.
For instance, in the case of IBRAHIM & ORS. V. C.O.P, the Court of Appeal, held, per Peter Odili, thus:
“In a criminal trial a ‘prima facie’ case is a case which proceeded upon sufficient proof to that stage where it will support findings if evidence to the contrary is disregarded. It is a case which on the face of it is sufficient to call upon the accused to make his defence, without which a court of law is competent to proceeds to conviction. It also means that the prosecution has presented sufficient evidence to render reasonable a conclusion on the face of the evidence that the accused is convictable, in the absence of contrary evidence. Onagoruwa v. The State (1993) 7 NWLR (pt. 303) 49 at 81 per Tobi, J.C.A (as he then was). If there is no sufficient evidence linking the accused with the statutory elements and ingredients of the offence with which he is charged, a court of trial must, as a matter of law, discharge him and it has no business searching and scouting for evidence that is nowhere and therefore cannot be found. That will not be consistent with our adversary system of administration of justice. It is inquisitorial in design and execution. ”
In the case of IKOMI VS STATE, the Supreme Court held: “No citizen should be put to the rigours of trial in a criminal proceeding, unless available evidence points prima facie to his complicity in the commission of crime.” In the case of STANLEY NWADIKE VS THE STATE Court, relying on the case of Abacha vs State (2002) 7 SC (pt.1) 1, said: “The power of the Court to prevent abuse of the process of Court includes the power to safeguard an accused from oppression and prejudice… The process of Court must not be made to oppress a citizen so as to charge a citizen with an offence, with a view to harassing him.”
In FIRST BANK OF NIGERIA PLC & ORS. v. AG FEDERATION & ORS.(2013) LPELR-20152(CA), the Court of Appeal, held, per Akomolafe, JCA, that:
“It is indisputable that the EFCC Act, like the EFCC, the Police, has the right to investigate, arrest and detain any person who is suspected of the commission of any offence under the EFCC Act. Any proved detention however must be justified in law; and must be exercised in good faith in the light of the important right of each individual. This is what is at stake in this case. The power of EFCC is therefore, subject to judicial control. In my humble view the court must not shy away from such sacred responsibility. In F.R.N v. IFEGWU (supra) Uwaifo JSC at page 1844 held thus: “If I may say so, as far as this Court is concerned whenever an aspect of personal liberty is properly raised in any proceedings the focus on the constitutional question is intense and intensive, and a solution which projects the essence of the constitutional guarantee is preferred.”. Our courts have expressly determined that before an arrest is effected, you must have investigated the matter and established a prima facie case against the individual. Otherwise, you will be running foul of the clear constitutional provisions and individuals who are affected in such situations should quickly assuage themselves by taking up originating processes for the enforcement of their fundamental rights.
Imagine the sad case of Chief Orubebe, the former Minister of Niger Delta Ministry, who, after two years ordeal of rigmarole trials, was finally discharged and acquitted based on a letter from the Honourable Attorney General, who advised discontinuation, since the very N1.9b Orubebe was said to have stolen, was sitting pretty in the Governments coffer. Imagine the humiliation, odium and obloquy
16.NO PROSECUTION CAN EVER SUCCEED WITHOUT WATER TIGHT INVESTIGATION: THE COURT ROOM IS NOT THE THEATRE OF THE ABSURD.
On this, I adopt my position in (15) above. Furthermore, the Court is not expected to manufacture evidence where there is none presented before it by the anti-graft prosecuting Agency, just to honour and pamper the executive in a vain glorious display of support for the anti-graft war. In any event, a court of law has no business whatsoever to decide an issue not placed before it. For, as it is usually said, a court of law is neither a father charismas granting undeserved reliefs, nor a knight errant looking for skirmishes all about the place.
17.YOU CANNOT GET JUDICIAL COOPERATION BY FORCE WHEN U TERRORISE JUDGES :FEAR WEARS OFF AND COURAGE RESUMES ITS SEAT.
The anti-graft Agencies should make no mistake about this. Judges cannot be held in terrorem. You cannot browbeat the judges into a state of subservience. There are age-long principles, rules, doctrines and ethical considerations flowing through a Judge’s learned mind as he adjudicates over a matter. For majority of Judges, these long principles, rules, doctrines and ethical considerations are more important and more powerful than brute force, blackmail, or the blaring sirens of power.
A Judge will always be a Judge. The natural instinct to be fair and just will always be present in his disposition. If the anti-graft Agencies can convert the strategies, tactics, time and energy they use in trying to intimidate a Judge into proper investigation and prosecution of the anti-corruption war, they will probably be more successful. Fear has expiry date. It wears off and courage resumes its seat.
18.LEARN TO ACCEPT THE DOCTRINE OF SEPARATION OF POWERS IN OUR CONSTITUTIONAL DEMOCRACY: YOU CANNOT APPROPRIATE THE THREE ARMS OF GOVERNMENT.
Indeed, the principle behind the concept of separation of powers is that none of the three arms of government under the Constitution should encroach into the powers of the other. However, judging from their conduct in recent months, the executive government arm of the government seems to be suffering a prolonged identity crisis. It used to be expected, roughly speaking, that the National Assembly would pass laws, the President would execute them, and the Courts would interpret them in individual cases. This has been captured is sections 4, 5 and 6 of the 1999 Constitution. This was the political framework established by the Constitution. Increasingly, however, it is not the way the federal government operates. And as departures from the Constitution’s plan grow more common, a permanent derangement of the Nigerian political system becomes more probable. These days, the President and his anti-graft Agencies are, where they are not found trying to make laws, are found busy interpreting them.
The great French Philosopher, Baron de Montesquieu, in his argument, stated that the division between the executive (the monarch) and the legislature (parliament), which itself was divided between the House of Lords (the aristocracy) and the House of Commons (the people), should, in theory, prevent a concentration of power and promote liberty because the making and enforcing of laws are separated and inexpedient laws or dangerous actions are prevented. Montesquieu had his greatest influence on the founding fathers of the US, and in particular on James Madison. Madison famously noted in The Federalist No. 47 that the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.
The Federal Governments anti-graft Agencies have been known to be masters in disobeying court orders. For instance, the Courts have serially grated bail to the erstwhile NSA, Col. Dasuki, only for such orders to be truncated by either the EFCC or the DSS. In 2016, Justice Yusuf Haliru of the FCT High Court, sitting in Jabi, Abuja, had this to say about the Economic and Financial Crimes Commission (EFCC):
The EFCC is a creation of the law. The court will not allow it to act as if it is above the law. It is remarkable to note that the motto of the EFCC is that nobody is above the law, yet they are acting as if they are above the law. The EFCC Act is not superior to the Constitution of the Federal Republic of Nigeria. The respondents in this matter have not behaved as if we are in a civilised society. They have behaved as if we are in a military dictatorship where they arrest and release persons at will.”
Similarly, an Abuja High Court judge, Justice Peter Affen, berated the EFCC for allegedly intimidating his court.
This is not EFCC office. You must comport yourself. The problem is that you people (EFCC) have too much physical power and you carry it everywhere. This is not a motor park and you must not be throwing your hands anyhow. You owe the court a duty of deference. Leave your policeman or EFCC powers at the door. Didn’t they teach you that in Law School? an angry Justice Affen asked the EFCC lawyer.
The scenario above is not the first time the Executive arm of Government attempted trampling on the powers of the court. In the celebrated case of LAKAMI V. A.G. (WESTERN NIGERIA), the doctrine of separation of powers was extensively discussed and some profound pronouncements were made. The apex court held that even under Military Governments, the doctrine of separation of powers remains inviolate. The Court held that:
“We must here revert again to the doctrine of separation of powers’ which the- learned Attorney-General himself did not dispute is still the structure of our system of government. In the absence of anything to the contrary it has-to be admitted that the structure of our Constitution is based on the separation of powers – the Legislature, the Executive and Judiciary….”
The anti-graft Agencies cannot win the war against corruption by a display of utmost contempt and disdain for the rule of law. They can only sustain and institutionalise the war against corruption by respecting the rights of suspects and complying fully with the orders of courts.
19. BE CREATIVE: YOUR REGURGITATION OF CASE LAW PRINCIPLES WITHOUT MATCHING THEM WITH PECULIAR FACTS CAN NEVER FLY: EACH CASE IS AUTHORITY FOR WHAT IT DECIDES
For the anti-graft Agencies to make headway in their war against corruption, it will be of great help to them if they review their manner of handling cases in court. The act of using the same cases for all matters even matters with different facts, as if such cases constitute mathematical almighty formula, is one of the very Achilles heels of the anti-graft Agencies. Cases, even when they are relevant to the matter at hand, must be creatively realigned to fit the present case. No one regurgitates cases de verbo in verborum, when the facts are radically different. In the cases I have done against the anti-graft Agencies, especially the EFCC, the same cases are used all through, making the Agencies quite vulnerable to predictability weakness, and intellectual shallowness.
20. STOP BEING VINDICTIVE TOWARDS LAWYERS FOR DEFENDING CLIENTS:IT IS A CONSTITUTIONAL RIGHT.
On the 16th of February, 2016, the Acting Chairman of the EFCC, Ibrahim Magu, delivered a speech to a coalition of Civil Society Groups that rallied to the EFCC Headquarters, Abuja, where he stated:
“One of the big challenges we have in the effective prosecution of the war on corruption, is that of very senior lawyers who Nigeria has been very kind to: They who went to good schools when Nigeria was good, many of them, on government scholarship; they who Nigeria has given so much opportunity. When we have corruption cases, cases of people who have stolen food from the mouths of our children; when we have cases of people who have stolen money meant to build hospitals and buy drugs; when we have cases of people who have stolen all the money meant to buy guns for our soldiers to fight Boko Haram, when we have all these cases of wicked people who have stolen Nigeria’s money, they run to these same senior lawyers, give them part of the stolen money and mobilise them to fight us, to delay us in court and to deny Nigerians of justice. These are the people who do not want justice for the common man”.
Due the above erroneously held perception, the EFCC has taken it upon itself to harass, threaten, intimidate or embarrass senior lawyers handling cases on behalf of their clients against the commission in Court. However, the EFCC and other anti-graft Agencies forget or chose not to remember, that every genuine lawyer in Nigeria is under strict professional obligation to represent any client that comes his way and who pays his agreed fees. Under Rule 7 of the Rules of Professional Conduct made pursuant to the Legal Practitioners Act, it is expressly provided:
Every person accused of crime has a right to a fair trial, including persons whose conduct, reputation or alleged violation may be the subject of public unpopularity or clamour. This places a duty of service on the legal profession and, where particular employment is declined the refusal of the brief or to undertake a defence may not be justified merely on account of belief in the guilt of the accused, or repugnance towards him or to the crime or offence as charged. (b) Any member of the Bar who accepts a brief for the defence in a murder trial shall be deemed to have given a solemn undertaking that he will personally conduct the defence provided his fee is paid.
Under Rule 23, it is provided:
Counsel is bound to accept any brief in the Courts in which he professes to practice at a proper professional fee dependent on the length and difficulty of the case, but special circumstances may justify his refusal, at his discretion, to accept a particular brief. Every lawyer upon his own responsibility must decide what causes he will bring into Court for plaintiffs and what cases he will contest in Court for defendants. His is the responsibility of advising as to questionable transactions, for bringing questionable suits and for urging questionable defences. He cannot escape it by arguing as an excuse that he is only following his clients instructions.
The above rule is a codification of the English common law rule (applicable in Nigeria) known as the “Cab Rank Rule”. The cab-rank rule prohibits a Barrister from refusing a brief, whether to act as an advocate or to advise, unless the Barrister is already professionally committed; has not been offered a proper fee; is professionally embarrassed by a prior conflict of interest or lacks sufficient experience or competence to handle the matter. Put another way, if a Barrister is available and the brief he is offered relates to his field of practice and is accompanied by a proper fee, he must accept it. Hence, Barristers must act on a first come, first served basis, in the same manner a cab driver must drive the next person in line at the rank (hence the reference to the Cab-Rank Rule).
The rule has been judicially stated in various ways. Lord Denning, MR, in RONDEL V WORSLEY, said:
[The Barrister] must accept the brief and do all he honourably can on behalf of his client. I say “all he honourably can” because his duty is not only to his Check against delivery client. He has a duty to the court which is paramount. It is a mistake to suppose that he is the mouthpiece of his client to say what he wants: or his tool to do as he directs. He is none of these things. He owes allegiance to a higher cause. It is the cause of truth and justice. He must not consciously misstate the facts. He must not knowingly conceal the truth. He must not unjustly make a charge of fraud, that is, without evidence to support it. He must produce all the relevant authorities, even those that are against him. He must see that his client discloses, if ordered, the relevant documents, even those that are fated to his case. He must disregard the most specific instructions of his client if they conflict with his duty to the court. The code which requires a barrister to do all this is not a code of law. It is a code of honour.
In the case of ADEGBOYE v. SALAWU the Court of Appeal, has this to say:
“A Counsel, by virtue of his training and expertise has an unflinching obligation to forcefully defend his client’s case within the ambit of the law and the decorum with which the profession is known for. He should not acquiesce at unfair proceeding that is capable of doing harm to the case of his client. For that is the reason why lawyers are employed to handle matters in Court so as to excel where laymen would be unable to cope.”
These rules and decisions merely rehash section 36 of the 1999 Constitution, which allows an accused person to defend himself in person, or through a counsel of his own choice.
If the anti-graft agencies tailor their minds to democratic tenets, they would understand that lawyers are essential to a just, democratic society where justice, fairness and equity reign. They will then stop seeing lawyers, not as spoilers but rather, as indispensable partners in the administration of criminal justice.
In any event, is it not gross unfairness, for the EFCC, which enjoys the service of 80 External Senior lawyers, headed by 20 Senior Advocates of Nigeria (SANs), as set up by the Presidential Anti-Corruption Advisory Panel (PACAP), to abuse and denigrate lawyers, especially SANs, and tarring them with the paint brush of corruption, all because such lawyers defend the very defendants being prosecuted by the State.
21.STOP WIRE-TAPPING CLIENTS -LAWYERS DISCUSSIONS: IT DIMINISHES YOUR WORTH AND MAKE YOU A BULLY .
It has been widely rumoured that the anti-graft agencies now generally wire-tap lawyers and their clients homes and correspondences, telephone conversations, and telegraphic communications. This is wrong in all ramifications. It is not only morally wrong, it is a gross violation of section 37 of the Constitution which provides that telephone correspondences of citizens are guaranteed and protected. I am aware that all my telephone lines have been wire-tapped and bugged for over one year. But, because I am a patriot who means well for the country, by contributing my little quota from my own small corner, I am not afraid nor deterred.
22.SEE AND UPHOLD THE POSITIVE ASPECTS OF THE CONSTITUTION AND THE ACJA, NOT THEIR NEGATIVE ASPECTS: IT WILL HELP YOU REFOCUS.
The anti-corruption Agencies can become loved and respected if and when they start recognizing that the constitutional provisions enshrined under chapter two of the 1999 Constitution are sacrosanct and not just inserted for the sake of it. They must understand that in Nigeria, the Constitution is the supreme law of the land on the basis of which the validity of other laws is determined. It is the grundnorm of the countrys corpus juris, the fons est origo (see section 1 (1), 1(3).
They must acknowledge that the legal foundation for the administration of justice in Nigeria is the Constitution, particularly the portions that relate to the powers of the court, or jurisdictional mandate of the courts. Also, the sections of the Constitution that deal with fundamental rights are central to the administration of justice; specifically the provisions on right to personal liberty, right to fair hearing, freedom of movement, of Association, to own property, of religious, etc.
They must know that aside the Constitution and the ACJA, human rights are identified and protected by national and international laws. Among the relevant international instruments are the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Standard Minimum Rules for the Treatment of Prisoners, the African Charter on Human and Peoples Rights, etc. the anti-graft Agencies should down play the draconian aspects of the ACJA that affront citizens rights, and look at its preamble, sections 5, 7, etc.
23.FIGHTING CORRUPTION AND RESPECTING FUNDAMENTAL RIGHTS ARE NOT MUTUALLY EXCLUSIVE.
The anti-graft Agencies must know and understand that the fight against corruption cannot be used as justification under any guise to suspend the workings and provisions of fundamental rights as enshrined in the Constitution. Fundamental rights cannot take back stage because someone somewhere is corrupt or is accused of corruption.
In the case of EL-RUFAI v. SENATE OF THE NATIONAL ASSEMBLY & ORS, it was held that:
“Fundamental rights are not ordinary rights, as they are rights derived from fundamental law, such as the Constitution and are therefore important or significant rights the “encroachment of which are rigorously tested by courts to ascertain the soundness of …justification” – Black’s Law Dictionary, Deluxe Ninth Edition, Page 744. Fundamental rights are, therefore regarded as inalienable human rights which cannot be infringed without a breach of the fundamental law of the land, that is the Constitution, which recognizes such rights. In the case of Federal Republic of Nigeria v. Ifegwu (2003) FWLR (Pt. 167) 703 at 758, the Supreme Court, per Uwaifo, JSC said that “Fundamental rights are regarded as part of human beings.” Also this court made the point, loud and clear, when it held in Uzoukwu v. Ezeonu II (1991) 5 NWLR (Pt. 200) 708 at 761, per Nasir, PCA as follows: “Due to the development of Constitutional Law in this field distinct difference has emerged between ‘Fundamental Rights’ and ‘Human Rights’. It may be recalled that human rights were derived from and out of the wider concept of natural rights. They are rights which every civilized society must accept; as belonging to each person as a human being. These were termed human rights. When the United Nations made its declaration it was in respect of ‘Human Rights’ as it was envisaged that certain Rights belong to all human beings irrespective of citizenship, race, religion and so on. This has now formed part of International Law. Fundamental Rights remain in their realm of domestic law. They are fundamental because they have been guaranteed by the fundamental law of the country; that is by Constitution.” (Underlining mine for emphasis). On the inalienable and immutable nature of fundamental rights, the Supreme Court stated in the earlier case of Chief (Mrs.) OlufunmilayoRansome-Kuti&Ors. v. Attorney General of the Federation (1985) 2 NWLR (Pt. 6) 211 at 229 – 230 as follows: “This is no doubt a right guaranteed to everyone including the appellants by the Constitution. But what is the nature of a Fundamental Right? It is a right which stands above the ordinary laws of the land and which in fact is antecedent to the political society itself. It is a primary condition to a civilized existence and what has been done by our Constitution, since independence starting with the Independence Constitution, that is, the Nigeria (Constitution) Order in Council 1960, up to the Present Constitution of the Federal Republic of Nigeria, 1979 (the latter does not in fact apply to this case: It is the 1963 Constitution that applies) is to have these rights enshrined in the Constitutions so that the rights could be immutable to the extent of the ‘non-immutability’ of the Constitution itself.” (Underlining mine) Owing to its peculiar nature, being a constitutional right, the Supreme Court has held that “A fundamental right is certainly a right which stands above the ordinary laws of the land.” See Badejo v. Minister of Education (1996) 9-10 SCNJ 51 per Kutigi, JSC (as he then was).” Per ADUMEIN, J.C.A. (Pp. 45-47, paras. A-B)
24. NIGERIA BELONGS TO US ALL,NOT TO ONLY A PRIVILEGED FEW.
Finally, the anti-graft agencies must realise that there is no way that our citizenship of this country (which became inherent in us by birth and heritage), can be relegated to that of aliens. We are equal stakeholders in the progress of this project called country. Shielding some individuals from corruption investigation because they are sacred cows in government, while propping up accusations of corruption against others because they are in the opposition or vociferous against governmental misdeeds and anti-people policies, cannot, in all honesty, be said to be fight against corruption. No section of the country must be seen to lord it over others. The three major ethnic groups should realize that Nigeria has over 490 ethnic groups that speak over 350 languages (Otite); and no particular tribe or ethnic group should hold aloft the mantra of superiority over others.
I humbly submit that if the anti-graft Agencies ruminate over these A-Z ways of how to fight corruption, with their dos and donts, they would have had proper grasp on the anti-corruption war, make it people-activated and edify it with the colours of nobility and integrity.