June 21, 2009

Charge electoral offenders with crime against democracy —Justice Ayoola, ICPC boss

By Dayo Benson,  Political Editor
AT the inception of this administration  President Musa Yar’ Adua vowed to frontally fight corruption in the polity. Two years down the line, it appears not much is being done in this regard. Some critics have even accused the administration of insincerity in its battle against graft. One of the anti- corruption agencies which Yar’ Adua inherited is the Independent Corrupt Practices and Other Related Offences Commission ICPC headed by Justice Emmanuel Ayoola.

For the retired Supreme Court judge the nation should fight absence of integrity rather than corruption. Curiously, he blamed the judiciary, his own constituency over perceived inability of anti-corruption agencies to successfully prosecute cases. He also advocated that electoral offenders be charged with crime against democracy. He spoke to Vanguard at the Commission’s office in Abuja. Excerpts:

The ICPC seems to have been quiet of late? What will you attribute this to?

Well, the commission has not been quiet. When you say quiet in terms of noise, of course, it has always been quiet. We believe in quiet efficiency but that does not mean that we have not been active. Activities are on the increase.

How do you differentiate between noise making and activities?

Justice Ayoola, ICPC boss

Justice Ayoola, ICPC boss

Noise making is talking all the time about what you are doing. While we have not been talking all the time, activities have been going on. Activities can be measured by statistics not by the amount of publicity you give to what you are doing. And the statistics tell us that the activities of the commission really increased. Last year alone, we handled about 900 petitions.

We filed 44 cases in court, more than before. In 2007 we had a little more than that and this year we received numerous petitions. So, activities are really on going. But if people expect us to talk all the time we ‘ll be disappointing them because we don’t do that type of thing.

How then would  people know that this commission is really functioning?

How do we know that the National Hospital is functioning? How do you know that the schools are functioning? If you want to know whether the commission is functioning, of course, you find out just as you are doing. In terms of giving publicity to those events that need to be publicised, we do a lot of that. We realise that we do not have a society that reads.

You will be surprised many people don’t even read  newspapers. We do many of our enlightenment on one-on-one basis. We have village square meetings, we have public interactive sessions. People tend to forget or they are ignorant of the fact that ICPC is created merely as a law enforcement agency. It’s not created only for investigation and prosecution. We have other mandates.

How would you rate the ICPC under you, especially since the inception of this administration? Has it been living up to expectation in the performance of its duties?

We are on course. There has been no distraction. We have maximum support of the President. He has not interfered  in our activities. So, I think we are doing well under this administration. We did very well under the past administration too.

Many people do not understand that government does not interfere in our activities. The only contract  we have with government is when money is allocated to us. You know the fight against corruption is not an emotional and sentimental fight.

It has to be scientific and strategic. And that is what we have been doing. For instance, we intensified public enlightenment, public education and mobilisation and the beneficial result is that we have more petitions coming in. And as a result we have improved activities in relation to investigation. When you have a society that is not enlightened, fighting crime is difficult.

When you have a society that is very enlightened, it  is easier for public participation in investigation because they report. If you are not enlightened, you really don’t know what is corruption and what is not corruption, so, you are not likely to report.

We also intensified our prevention mechanisms because we believe that prevention is better than cure. So, what we have done is intensify our national integrity outreach. We encourage each sector of the society to take over the campaign against lack of integrity. Many people don’t realise in this country that what we should be fighting is not really corruption.

The root cause of corruption is lack of integrity. Unless you eradicate general lack of integrity, the fight against corruption will be very difficult. So, our preventive campaign is to make people imbibe an attitude of integrity.

If we tow this direction, which section of the society is or are  your targets?

Well, we have gone into different sectors of the society. We’ve gone to the religious groups. We’ve challenged them. We’ve gone to the education sector where we have embarked on a massive drive to have anti-corruption clubs in all secondary schools.

We had a pilot programme in Federal Capital Territory last year. We got the schools together to design their own integrity code, which they are going to administer themselves. They prepared an integrity code. They put in the code monitoring mechanisms for enforcement. It’s a pilot programme. In Osun State, for instance, we had the train the trainers programme.

As I said, we also have quite a number of village meetings. We look at the fight against corruption as something we have to adopt a  holistic strategy. If you concentrate only on investigation and prosecution, the fight against corruption will not get very far. We have to educate people about the ills of corruption; how much damage it is doing to everybody before you can get everybody to support what you are
doing and that is what we are doing.

How impactful has this been, especially this method of enlightenment, trying to sensitise people against corruption?

The fact that more people are talking about corruption than before shows the impact of our campaigns. Let me give an example, in the past corruption was tolerated by the society. In fact, it be came a sort of culture and nobody was talking about it.

But now, no day passes by without somebody talking against corruption, the media in particular. Every speech by a public functionary is not complete unless corruption is mentioned. So, really, we have brought the issue of corruption to the front burner. To that extent, I’ll say that what we’re doing is having tremendous impact.

You talked about  going to schools, business circles and other areas  but  did not mention the polity where corruption seems to be  more endemic. Is ICPC not interested in that sector?

You are very right. We have not gone into the political sector because it is  very difficult to pin down. These are supposed to be the leaders of the nation. One is not happy with the level of integrity of politicians.  Personally, I believe they are like that because they have  favourable environment.

The  attitude of the society favours them. No politician can be dirty in a clean society. So, a dirty politician needs a dirty environment in which to thrive. So, if we sensitise the public and cleanse the society first, it will be very difficult for a dirty corrupt politician to practice acts of corruption.

What we need to do is to erase the popular mentality that some people are untouchable. Once we are able to do that, we will get a cleaner society. But the thing is to educate the people, change their attitude and remove the big-man-small-man-mentality.

Are you comfortable with the role of money in politics?

Well, you cannot remove money from politics. It depends on how it is used. If money is used corruptly, then, of course,  it is bad. Take the American election for example, a lot of money was used but it was not used corruptly. It was not used to damage the electoral process.

If it can be done in developed and civilised countries, why can’t it be done in Nigeria? For every politician who carries money around to pollute the system, there are hundreds of Nigerians ready to take money to mortgage their conscience. So, whilst we are looking at the politician, we have to look at the society too. I believe that the law has been too soft on politicians. Since the present dispensation and even before, how many politicians have been charged with electoral malpractice? None.

You see, the criminal justice system is really inactive when it comes to cleansing the political terrain. And I believe that there should be crime against democracy just as in the international sphere you have crime against humanity. In crime against humanity you have so many crimes under that generic term ‘crime against humanity’.

In the same way, we should have crime against democracy in which every  violence, every act of thuggery, every act of massive corruption and every act of rigging will be treated as crime against democracy and severely punished.

In a lecture you delivered in Ibadan recently you said that where impunity and lawlessness thrive, there can’t be rule of law. In which area have you noticed  impunities?

It is all over the place. Take inter-communal violence, has anybody been prosecuted? No. After conflicts, houses are damaged, people are slaughtered, what happens after? Nothing? I remember when I was young, just about eight years old, there was a riot that went on in Ilesha for three days. Houses were damaged, persons were injured, the riot was put to a stop but it did not end there.

The ring leaders of the riot were sent to jail. They were prosecuted and sent to prison and that was the last riot that ever occurred in Ilesha until, of course, the days of impunity. We must strengthen the criminal justice system. We must reinforce law enforcement agencies.

One cannot blame anybody or any of the agencies for impunity. There should be a ten year programme of rebuilding the structure of governance in terms of law enforcement. What we are doing now is grossly inadequate. Take the fight against corruption from our own side, the budget is extremely ridiculous.

The low budget you talked about, does it not suggest a measure of insincerity on the part of government?

No,do not think it is a measure of insincerity because we ourselves must take part of the blame for not been sufficiently vigorous in making our demand from government. We intend to put that right this year. We’ve been so gentle in accepting whatever the government gives us. You know with government, if you do not demand vigorously, government doesn’t beg you with money. So, really, the blame does not lie entirely with government. It lies with us too.

The President recently sent some bills to the National Assembly seeking to empower the police to fight electoral offences. How do you see this?

Well, I have not read or studied the bill but I think it is a step in the right direction but much more needs to be done. You see, the law merely empowers. When the law empowers, carrying the empowerment into action is another thing. And that is where the challenge really is.

The law empowers, yes, but one must make sure that empowerment translates into activity. And that is what the handicap probably will be. We need to provide adequate logistics for the police. We need to put the police above temptation. We need to bring professionalism into the police.

You know, we have the best police if not in the whole world, in Africa. One has seen them operate outside Nigeria and they operate very efficiently. The public won’t believe it but we have fine people in the police force, highly qualified, highly educated people. The environment in which they operate is very demeaning. You just visit an ordinary police barracks and see what we have there.

Compare police barracks with army barracks, you see the difference, a glaring difference. Now, when you look at a military officer, the way he comports himself is different from the way a policeman does. It is not because he is a different person but because the environment in which the army personnel operate has not dehumanised him.

Have you had cause to invite any prominent personality, probably a politician, over allegation of corruption?

You know, personally, I’m not speaking as chairman of ICPC, I have a personal aversion to the attitude of Nigerians that build personalities, ‘big man, small man’.  Now, if we’re to come to the question, yes, prominent Nigerians have been invited. You may not read of that in the newspapers because that is not our practice.

But prominent Nigerians have been invited and are being invited but personally, why I’ll not mention names or give you details is that to me, it is not news.

You see, Nigerians must realise that our focus is not against persons. Our focus is against vice. As you know, a person who carries an infectious disease that can wipe out the entire population, whether he is poor man or a rich man or big man or a small man makes no difference. We invite people when there is allegation against them.

Does it mean you don’t publicise it for certain reasons?

Well, from my background, we have a duty to every citizen of Nigeria. Of what use is it when an allegation is made against a person, and you have not investigated, you don’t know whether it is true or false, malicious or genuine and you make so much noise about it, you have fulfilled the desire of the person who made the allegation and you have damaged the person against whom the allegation was made.

And we must realise that in Nigeria, people take a mere allegation as the truth. And when a wild allegation is made against a person and you give it front page publicity and nothing comes of it, you see, the last conclusion Nigerians will come to, if you check 100 Nigerians, only one percent will say that nothing was found against him, particularly if it is your so-called ‘big’ man. The remaining 99 percent, many will say that the case has been killed. Some will say you have been bribed. So, which ever way, a damage has been occasioned.

You admit the fact that the political class cannot do without money, how do you ensure that money is not used corruptly to de-sanitise the system?

Well, that one will be a little bit difficult because I’ve never been a politician. Sincerely, I don’t know how they use money. I think when we do the electoral reform, maybe that will be taken care of. Factually, I can’t say much about that but I do know that there are activities, even within each party, that do not look good enough.

Take god fatherism, for instance; take situation in which a person sponsors a governor in exchange for the key of the treasury. I mean, such conduct should be really criminalised. It is not something that an agency on its own or government on its own can deal with. Society itself must rise up to deal with it.

Let us talk about government’s tolerance for corruption, how would you rate Yar’Adua administration’s tolerance for corruption?

It is at zero level because we have not heard the administration condoning any act of corruption.

Sometimes the role of ICPC is confused with that of EFCC, where do we really draw the line between the two anti-corruption agencies?

Well, the line is drawn in the law which established each agency. We in the ICPC draw the line very strictly. We’re established to investigate and prosecute offences within our statutes and we stick to that. I can only tell you where we draw the line if we do the drawing (but) I cannot tell you where another agency may want to draw the line.

But EFCC does the same thing you do; investigate and prosecute ….?

Well, maybe they do, maybe they don’t. Maybe they should, maybe they shouldn’t. I do what is within my mandate and I do what I’m doing efficiently.

I’m sure you wouldn’t want to talk so much about EFCC for obvious reason as that is not your own area but I’m sure many people have the same feeling that ICPC is perceived to be quiet relative to EFCC?

Each organisation has a culture, just as each human being has his own way of doing things. If I want to work as you work, I’ll look ridiculous and if you want to work as I work, it will look ridiculous. What is important is that, whatever your culture, you should make sure that whatever you are doing, it is efficient, just and fair, and that is what we are doing.

But sometimes do you find overlapping in particular functions?

Yes, yes. There are a lot of overlapping, which probably, is not good enough. There shouldn’t be overlapping. I think, each agency has its core areas. Of course, if we want to expand our activities, we can go after the 419ners because it is fraud.

If we are to define our own mandate to include all sorts of things, every act of fraud will be within our mandate. Which means we can even go after the banks if we find that fraud is being committed there because  corruption is  includes fraud.

And our mandate includes investigating and prosecuting offences under the Act and other Acts prohibiting corruption. So, if we were greedy in acquiring power and jurisdiction, of course, the whole terrain will be free for all. But it doesn’t make for efficiency of the agencies, and I think in no distant future, steps will be taken to harmonise our activities.

Could you mention one or two cases that this commission has successfully prosecuted since you became chairman, either celebrated or not celebrated?

That question is difficult for me to answer because, as I said earlier, I see corruption as corruption. So, celebrated cases of corruption, I don’t really know what that means. All I can say is that we have prosecuted a number of cases to conclusion.

But if you want to rate the performance of ICPC by the number of cases prosecuted to conclusion, then you have to wait for something like ten years because of the slowness of the justice system. Al-Mustapha’s case is still in the process, it is not a case of corruption, I just used it as an example of the tardiness of the judicial system. We have cases here which have been filed since 2002 and not yet determined.

We decide not to measure the success of our activities by the efficiency or inefficiency of other agencies we have to deal with, like the judiciary. I think it is enough for us if we investigate and charge the case to court. Beyond that, how much can we do? Nothing.

As a product of the judicial institution, how does that make you feel?

I won’t say I am a product of that institution, I was a player. Many people do not know that the delay is very seldom caused by the judiciary. The delay is caused by a more dangerous culture in the legal system, which some manipulate to cause delay. Others are not just efficient in the practice of law.

The judge is torn between wanting to do justice and wanting to be efficient. If you want to be efficient, if a lawyer asks for an adjournment, you refuse it because you want to finish the case on time. But then, you have done a great injustice to the person who retains the lawyer.

So, the judge himself is torn between conflicting desires. Desire to do justice and the desire to be efficient. In most cases the judges will probably lean more towards justice. And that could cause delay. So, how do we correct this? I think the first step is for the legal profession itself to see the need to change the culture that is growing within the Bar, the culture of not being efficient enough.

By, efficiency, I’m not talking a bout knowledge of law. Efficiency in prosecuting cases, whether civil or criminal.  You find cases in which lawyers, not being efficient, papers not filed in time. On hearing day, the lawyer is not ready and things like that.

In Lagos, I think they have taken care of that to a large measure by the new rules, which have been put in place. I think that is a step in the right direction. I understand many states are now copying what Lagos has done. Let’s wait and see and expect an improvement in administration of justice in the country.

Would you also advocate a special court for your own kind of operation?

Well, I know that there are views that are advocating special court. I know that my friends here wants a special court. For me, it won’t make much difference because that special court will be part of the judicial system and the culture we’re talking about, is the culture of the judicial system.

So, when you bring another judicial institution into the system, unless you find ways of insulating it from that culture, it will imbibe the same thing. People tend to forget that the Federal High Court started as a Federal Revenue Court. created to deal with revenue cases speedily. Customs cases, tax cases, those were cases government then felt that should be dealt with speedily. And so, they created a special revenue court but the  culture of adjournment, cumbersome procedures, crept into the Federal High Courts?

The same backlog of cases as I said earlier. So, I don’t think creating a special court will probably be the solution. I think the solution is to change the ethics of the legal profession, to change the culture. When we were young, we were anxious to finish our cases so that we can go after the next case.

A case that goes on endlessly is a loss to the practitioners because if you have had your fees and your fees have been paid, and you’ll have to service the case for the next twenty years, the case is definitely a loss. So, in those days we were trying to go to court, deal with case there and then speedily, get done with it, collect our fees and go after the next case.

I think a lot of teachings has to be done within the legal profession. The answer is not in merely creating tribunals and courts and so on. When you create a court, people forget that this not a military regime where you do not have the constitution to bind you, where you can create a court and you can exempt it with all sorts of summary procedures, fair hearing doesn’t matter and so on.

But once you create a judicial institution within the system, you cannot insulate it from manipulation of the constitution that will cause delay like going up and coming down. We have quite a number of them, the identity card case, which involves the late minister Afolabi and so on, is an instance. The case has been in court for a very long time.

It has gone up to the Supreme Court, it has come down and it may even be climbing up and I think it is presently before the Supreme Court. When it gets through at the Supreme Court, the trial has not started, it will come down again and the same process will start until everybody gets fed up. That case is still in court through no fault of the ICPC.