In Nigeria of Buhari, I Will Eradicate Insecurity And Corruption – Buhari 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, President Muhammadu Buhari may, despite his good intentions, lose the requisite focus and despatch; 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.
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On the other extreme, the Sultan of Sokoto, AlhajiMuhammad Saad Abubakar 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 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.
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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.
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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 shelfs, gathering dust and constituting a national embarrassment.
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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.
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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, Bureaux 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.
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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 is a lawyer. He can be reached by email.
The opinions expressed in this article are solely those of the author.
