Corruption, Conspiracy and Strategy for Success


Dr. Wilfred Mamah

OPINION

By Wilfred Mamah


“If we do not kill corruption, corruption will kill us.”

Apt and sharp like a razor, the above Presidential statement would continue to resonate for various reasons: It captured the mood of the nation and rightly placed anti-corruption at the centre of national survival.

 On another note, it does something not too obvious: it clearly identified the subtle nature of the fight: it is a fight against portent and desperate enemies who have conspired against the State, with a view to capturing and decimating her people.

War strategists would confirm that winning a war, like this, requires a clear understanding of the enemies and weapons at their disposal. 

So, it is important therefore, that we clearly understand the physiological and psychological make-ups of these people who have conspired to keep this country, perpetually improvised through massive stealing of development funds.

The Conspirators

A careful review of all the major corruption cases, past and present, points inexorably to one fact: those who steal public money are not ordinary people.

They are usually people in high position of power, authority and trust. They are always very enlightened people. They are usually wealthy and very class conscious.

Though a small minority, when compared to the teeming majority they lord over, they stand out, because of their power of wealth and propaganda. Their unique taste and consumption styles are quite eye-catching. Their political philosophy is usually market -oriented.

 They celebrate classical capitalism, in which the ‘haves are privileged to have more, and thehave-nots are grouped as disposable people.

In fact, they feel happier when the ‘have-nots’ lose even the little they have to the aggressive, deregulated market in which the conspirators dominate.

Winning Strategy: Grand alliance with the Oppressed

To win the war against corruption would require a President that identifies with the oppressed majority, the ‘have-nots, who have been dispossessed by the corrupt elites.
In President Muhammadu Buhari, we see an austere President who has what it takes to lead a successful fight against the ‘caterpillars of our common wealth.’

Judging from the Presidents utterances, demeanor and action since his inauguration, it could be stated that there is now a strong political will for fighting corruption in Nigeria.

For the fight against corruption to succeed, however, this strong political will must translate to coordinated and effective legislative actions that upgrade the current institutional framework and empowers a grand coalition of the people in order to lay solid bedrock for decapitating chronic corruption and the impunity that goes with it.

The best weapon for victory, therefore, is the very weapon that the conspirators despise: regulation.

The conspirators favour deregulation that consigns the role of government to that of a ‘night watchman, so that they can muzzle the poor and whip them into slavish submission.

They fear regulation because it would expose their corrupt practices, recover their loot and deny them their cherished liberty for epicurean profligacy.

Institutional pathway is a regulatory, pro-people strategy. Institutions are critical because they set the rules of the game, without which we cannot separate corrupt from non-corrupt, neither can we trace and recover proceeds of corrupt acts.

We can spend the whole year analyzing causative and historical antecedents and peering through the crystal balls to see whether the unprecedented stealing of public funds is a result of our nature or nurture, but we will make no progress until we take the pragmatic institutional steps to stop it.

The first institutional challenge is to ensure that EFCC and ICPC; the key anticorruption bodies, do not have overlapping and conflicting duties.

The argument for merger or non-merger of the institutions may not be as powerful as taking a second look at their roles to ensure that issues of duplication are settled.

There is nothing wrong with fighting a dreaded enemy with two or multiple hands, provided that each weapon thrown at the enemy achieves a clearly defined and desired role.

No weapon should be allowed to be redundant in the face of a dreaded foe. A major task here is to interrogate who is doing what and come up with clearly delineated functions for each of the anti-corruption institution.

There is a strong case to be made that the lumping of investigatory, prosecutorial and asset tracing role on one institution cannot be justified especially as it flies in the face of international best practice.

To that end, a focused legislative action is required in order to review the EFCC and ICPC laws, with a view to reforming and refocusing the agencies to achieve better results. Insulating the agencies from political interference will also require a constitutional effort.

In South Africa, certain institutions are constitutionally insulated from interference, by securing their independence and financial autonomy. A key criticism of the anti-corruption efforts in Nigeria has often revolved around ‘witch-hunting of political enemies.
Although such criticisms could be a ploy by the conspirators to distract attention, it is important to note that perception is critical here as every serious student of justice knows that wrong perception could be fatal to the course of justice.

That is why it is often said that justice must not only be done but must be seen to have been done. Taking a constitutional step to insulate the anti-corruption bodies from any form of executive/legislative interference would go a long way in promoting effectiveness of the anti-graft bodies and silence the conspirators.

The Anti-Corruption agencies are also hindered by complicated laws, like the Anti-Money Laundry Act that requires not only proof of laundering but proof that the money laundered came from illegal act. 

There is a strong case to be made that why the Ibori case collapsed in Nigeria was as result of the inelegant drafting of the Anti-Money Laundry Law, which made it possible for a brilliant defense lawyer to raise series of doubts, which as we know, would ultimately count in favour of the accused in any adversarial criminal justice system.

The accused is presumed innocent until proven otherwise and the burden of proof in criminal trials is the highest level proof beyond reasonable doubt. Legislative reforms aimed at simplifying these overarching laws would be needed.

To aid effectiveness, there is also a need for a more effective Asset Declaration Framework. The Code of Conduct Bureau/Tribunal, as recent events throw up would need to be looked into to ensure that their provisions do not conflict with the Constitution.

In addition, there is need to fill the gap with regard to the process of disclosure. The Constitution currently does not require public disclosure of assets and liabilities. This is a discomforting omission because the public cannot monitor what they do not know.

The whole essence of disclosure is to aid accountability through public scrutiny. The opaque nature of the Constitution with regard to declaration of asset in a public manner has meant that public asset declaration has been elevated as a testimonial of a magnanimous/ good political leader. 

The benchmark for good political leadership should be higher than mere compliance to what should be expected in any decent society. Public asset and liability declarations should be a given in a democracy worth its name.

The time is clearly ripe to revisit the Ethics in Government Bill, proposed by Olisa Agbakoba to the First National Assembly in 1998. It is strongly urged that there is need for promulgation of Ethics in Government Bill to put pay to whether Assets should be declared publicly or not.

Asset-tracing and recovery are other crucial areas that are often lost sight of as the pursuit of retribution often diverts attention to where the focus should lie.

Criminal Law, though a vital aspect of our jurisprudence could be too mechanistic.To achieve a more enduring impact on societal growth, it stands to reason that that Criminal Law must have to interact with Criminology, the science of criminal behavior.

It is argued that successful prosecution and recovery of stolen funds are the most beneficial stages of the anti-corruption efforts. The Criminologist may further posit that recovering both the stolen funds and thief (offender) ought to be the focus of the struggle.

On recovery of stolen funds, we must be honest to state that the EFCC’s mandate to trace and recover assets has not been very successful. It could be argued that for a country desperate for development, recovery of stolen assets may be more important than incarceration of the offender.

For Illustration, despite the widely celebrated conviction of James Ibori in the UK, Nigeria is yet to recover the stolen assets. Abachas assets are still outstanding.

For Asset tracing/recovery, Nigeria relies on the Mutual Legal Assistance Programme, with countries like, US, UK. This programme has not been very beneficial. There is a need for a political decision to ensure that all trials take place in Nigeria.

There is a need to upgrade our legal system to meet the standard required internationally. Developing expertise of lawyers and law firms in this regard will also be fruitful.

The need for developing local expertise in asset-tracing and recovery becomes more compelling when one takes a close look at billions of African Stolen wealth abroad.

In a recent Forum on Asset Tracing, a participant asked a Swiss prosecutor, what do you do when you recover Nigerias money? He responded that they set up a Trust Fund and nominate a prominent Nigerian into the board.

Trust Fund for Nigerias stolen wealth, abroad, whilst many are dying at home because of lack of money? Clearly, the current system of asset-tracing and recovery, which generally separates the real owners of the asset from it, until certain stringent conditions are met, is not good enough and risks recovered asset remaining entrapped abroad.

The United Nations Anti-Corruption Treaty and related international law instruments should provide the bases for challenging the current practice.

Stolen funds are desperately needed to aid development in a country like Nigeria that is still struggling with basic needs of life. Nigeria ought to demonstrate readiness to be on the driver seat of this effort by strengthening and creating impregnable institutions and improving speed of free, internationally-compliant criminal justice system.

In conclusion, the war against corruption is a class war. It is a war between the forces of good and evil; between crude/short-sighted egoism and enlightened/ far-sighted self- interest.

Nigeria stands a chance to win, if we all, especially the oppressed generality of our people stand up in unison against the very few people that are keen to rock the ship of our nation through massive stealing.

It is recommended, therefore that the President pursues the institutional pathway to combating corruption. Carrying Civil Society Organisations and the Nigerian people along would be critical to success.

Anti-corruption is a confrontation with a powerful, privileged class of Nigerians. To demobilize the seemingly confounding weapons of propaganda and wealth, they wield, the President must align with CSOs and Nigerian people.

The Anti-corruption effort must not only be just but must be seen to be just.


*Mamah, PhD (London) is a partner & Head of Development Law, Olisa Agbakoba Legal.