By Adeyinka Olumide-Fusika
It was also thought that even where cases are charged to court, the defence always find ways of delaying it forever
thus undermining the integrity of the entire process. Hence (as some believe) the festering of corruption.
However, as I have already pointed out, even these are not the reasons for corruption, but just some of the ways in which it has undermined the retributive system.
But let us not digress from the main point I wish to make in drawing attention to the two legislation cited. If you look at Section 214 of the Criminal Code, you will discover that a person who has carnal knowledge of an animal is guilty of a felony and is liable to imprisonment for fourteen years. Note that the offence is having carnal knowledge of an animal, which is at most injurious to the perpetrator or the animal, yet he goes in for fourteen years.
When you look at Sections 98-104 of the same Code relating to corruption and the like offences, you will discover that the maximum punishment prescribed is half the term prescribed for the person who had carnal knowledge of an animal. In Section 390(1) and (2) of the Code, if you steal a testamentary instrument or a postal matter, the punishment is lifetime in prison; but if you pilfer billions from the public till and thereby cause destruction to many lives by depriving key social sectors the needed resources required to be effective, you go away with, what in comparison, is a mere slap on the writ.
It is just like it was in a slave owing society where murder is made a general offence, but the murder by a slave owner of his slave is not necessarily reckoned or punished as murder. Thus we see that in creating offences and prescribing punishment for them, the predominant social economic relations is reflected.
Notwithstanding his brilliant summation of law and justice as essentially ideological, Dr. Sam Amadi addressed Ronald Dworkinâ€™s conception of judges as value-neutral capable of Hercules-like exertion in the extraordinary service to equalizing justice to all.
According to this theory, the â€œideal judge, Hercules, is capable of doing the extraordinary. He can turn the law generated through unrestrained interest bargaining through integrity in interpretationâ€¦. Hercules uses the principles of right and justice to interpret what the law says even in hard cases. They simply resort to principles of rights which themselves are inherent in the moral universe of adjudicationâ€.
I agree with him in his assessment of this conception of the judge as warped and unreflective of a reality which shows that the very principles of right and wrong are tainted by self-interests and values. Come to think of it, is the judge not part of the society? He certainly is. Is the judge class-neutral? I think not. Hence, although an individual judge may go to extraordinary length to ensure justice (assuming justice were to be neutral), he cannot obliterate the fact that the judiciary is just one branch of the governing mechanism of a State, which itself is a creation in the image of the dominant class in society.
Put in the context of the theme of this gathering which is corruption, an incorruptible judgeÂ (if you like, a moral Hercules) is an aberration in a system based on corruption. Citing the experience of John Githongo, the former anti-corruption czar of the Republic of Kenya, Dr. Sam Amadi made this point when he stated that â€œIn Kenya, as in many other countries, the KACC (that is, the Kenyan equivalent to our own ICPC) is part of the grand corrupt game, providing them with another bureaucratic wall behind which to shield, another scapegoat to blame for lack of progressâ€.
In other words, the captors of the State are the ones making the laws, interpreting it and executing it. It stands to reason that they will exercise these functions for their own preservation. Therefore, it should be expected that when they write the constitution, they will put immunity clause in it to protect themselves from prosecution for corrupt exercises of their powers; it should be expected that when they are forced (by pressure from below) to criminalize acts of corruption, they will stipulate light punishments for it in comparison to non-elite offences; it should be expected that accused corrupt officials would be treated in the course of prosecution like honoured guests; and so on and so forth.
We have had so many suggestions on how to remedy this situation. The setting-up of special agencies (e.g. the ICPC and the EFCC) to â€˜fightâ€™ corruption is one. Bamidele Aturu himself has suggested that any public official living above his visible means of income should be charged and presumed guilty as charged until he proves his innocence, rather that been presumed innocent until proven guilty. Prof. Itse Sagay has quixotically suggested that a leaf be borrowed from the Peoplesâ€™ Republic of China on appropriate punishment for corrupt public officials which is death sentence.
I dare say that these measures and the like would only be resorted to by the State when the controllers of the State come to the conclusion that corruption has become a threat to the very existence of the State and the very survival of the interest which the State represents.
All States, no matter the interest they represents, always make drastic provisions in their laws for the punishment of acts considered as likely to undermine the continuance of the particular State. Hence, for instance, the punishment for treason in most countries is death. Perhaps it is because China considers corruption to be treasonable that it punishes corrupt public officials with death.Â But as I have already commented, corruption is the means of primitive accumulation of wealth and class distinction by Nigeriaâ€™s ruling class, and it is therefore not considered by them as a threat to the very existence of the State they have created.
So, what to do? I go back to Dr. Sam Amadiâ€™s classification of corruption as politics. Since corruption is politics, and law is a product of politics, then, like Dr. Sam Amadi has argued, corruption cannot be defeated by legalism but by political action of the victims of corruption who must overthrow it.