Corruption, Conspiracy and Strategy for Success

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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 the ‘have-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 President’s
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. Abacha‟s
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 Nigeria’s
money? He responded that they set up a Trust Fund and nominate a prominent
Nigerian into the board.

Trust Fund for Nigeria’s
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.