The first part of this piece which was published in Thursday’s edition of Vanguard cautioned against selective probe noting that it is not only unfair and unjust but also contrary to the Constitution of Nigeria
By Ben Nwabueze
This group, whose most notable members are former Military President Ibrahim Babangida and Gen Abdulsalam Abubakar, both of whom were former Heads of the Federal Military Government, had declared support for Gen. Buhari in the March 2015 presidential election, as reported in the Vanguard Newspaper of Tuesday 20 January, 2015.
Their rank and influence have been augmented by former President Olusegun Obasanjo, self-proclaimed father of the Peoples Democratic Party (PDP) and the progenitor of god-fatherism in Nigeria, who has now left the party after declaring and vowing that it will rule the country in perpetuity. The constraint on President Buhari in probing the Administrations of these three past rulers is near insurmountable, but it is better to admit it openly than to call such a probe a distraction or to hide under some other argument based on expediency or convenience.
The other factor comes from a group of die-hard Islamists determined to impose Islamic (Sharia) system of government on Nigeria – a theocracy, such as the Caliphate and Sultanate systems and other dictatorial forms – and to whom a New Beginning for Nigeria and the Liberal Democracy it implies is anathema.
We will wait and see how President Buhari can overcome these constraints on his powers, and betray the sponsors of his election to the presidency.
Constraints on his power
Now about the law on corrupt practices, their adequacy or otherwise, and how unswervingly or resolutely they have been enforced or implemented by successive past Administrations with a view to the accomplishment of their set objective, i.e. the eradication of corruption. This dictates an investigation across the board.
The laws on corrupt practices and their enforcement or implementation
(i) Adequacy of the laws on corrupt practices
The laws on corrupt practices are quite adequate. They come from three different sources, viz the common law, the Constitution and the statute law.
As regards the common law, it is a well-established principle of our law, laid down in decided cases, that an employer, public or private, has a right to the money or property acquired by his employee by means of corruption or abuse of office.
This is not strictly forfeiture, as the term is commonly understood as connoting a penalty for crime. The right of the employer at common law, though often referred to as forfeiture, is intended, not to punish (i.e. penalty), but to provide a method of recovering the money easier and quicker than the process of forfeiture as penalty for crime under the statute law.
Of the various anti-corruption laws, the Constitution is the most far-reaching in the generality of public servants covered and the amplitude of its provisions on the matter. By section 172 (section 209 in the case of a State) “a person in the public service of the Federation shall observe and conform to the Code of Conduct.”
ALL public servants, without regard to categories, whether of the officer cadre or not and, if an officer, regardless of his class or grade, whether he or she is in the top, middle or lower cadre, is bound by the duty or obligation to “observe and conform to the Code of Conduct.”
Whilst the Code of Conduct itself, as scheduled to Constitution (Fifth Schedule) by section 318 of the Constitution, is headed Code of Conduct for Public Officers and its application is restricted to public officers listed therein, the duty to observe and conform to the Code enjoined by sections 172 and 209 are no less obligatory and binding on other categories of public servants, notwithstanding that no sanctions are prescribed for failure by them to observe and conform to its stipulations.
Code of conduct
Sanctions are meant to reinforce the duty, and their absence should not diminish or detract from the obligatoriness or binding force of the duty. A citizen of good repute and integrity obeys the law because it is his duty to do so, not so much in order to avoid the wrath of the law being visited on him or her.
It is a measure of the importance attached to the Code of Conduct that the oath of office prescribed for the President (and State Governor) in the Seventh Schedule to the Constitution requires them to swear not only to “preserve, protect and defend the Constitution,” but specifically to “abide by the Code of Conduct.”
The importance of the Code is also affirmed by the Code of Conduct Bureau and Tribunal Act, cap. 56 of the Laws of the Federation 1990 edn, which provides: “The aims and objectives of the Bureau shall be to establish and maintain a high standard of morality in the conduct of government business and to ensure that the actions and behaviour of public officers conform to the highest standards of public morality and accountability.”
The relevant provisions of the Code for present purposes are contained in paragraphs 1, 6, 9, 11 and 13 which, for ease of reference, are herein reproduced.
- A public officer shall not put himself in a position where his personal interest conflicts with his duties and responsibilities.
- (1) A public officer shall not ask for or accept property or benefits of any kind for himself or any other person on account of anything done or omitted to be done by him in the discharge of his duties.
(2) For the purposes of sub-paragraph (1)of this paragraph, the receipt by a public officer of any gifts or benefits from commercial firms, business enterprises or persons who have contracts with the government shall be presumed to have been received in contravention of the said sub-paragraph unless the contrary is proved.
(3) A public officer shall only accept personal gifts or benefits from relatives or personal friends to such extent and on such occasions as are recognised by custom.
- A public officer shall not do or direct to be done, in abuse of his office, any arbitrary act prejudicial to the rights of any other person knowing that such act is unlawful or contrary to any government policy.
Provisions of the constitution
- (1) Subject to the provisions of this Constitution, every public officer shall within three months after the coming into force of this Code of Conduct or immediately after taking office and thereafter – (a) at the end of every four years; and
(b) at the end of his term of office, submit to the Code of Conduct Bureau a written declaration of all his properties, assets, and liabilities and those of his unmarred children under the age of eighteen years.
(2) Any statement in such declaration that is found to be false by any authority or person authorised in that behalf to verify it shall be deemed to be a breach of this Code.
(3) Any property or assets acquired by a public officer after any declaration required under this Constitution and which is not fairly attributable to income, gift, or loan approved by this Code shall be deemed to have been acquired in breach of this Code unless the contrary is proved.
- A public officer who does any act prohibited by this Code through a nominee, trustee, or other agent shall be deemed ipso facto to have committed a breach of this Code.
The most far-reaching of the stipulations in the Code is that contained in paragraph 1 above, which enjoins a public officer not to “put himself in a position where his personal interest conflicts with his duties and responsibilities”. The provision in the paragraph underscores the nature of a public office as a public trust, with all the obligations and restrictions which the law imposes on trustees of a private trust.
State or political power is held and exercised by the rulers in trust for the public, from which it follows that those entrusted with it are subject to the obligations and restrictions implied in the concept of trusteeship, in particular the duty of honesty and fidelity, and the prohibition against using the position for personal benefit.
Both the duty and the prohibition are sanctioned by making the trustee strictly accountable for any such benefit or profit, and generally for the way he administers the trust. Accountability is thus a cardinal principle of the trust concept, to which trustees, whether of a private or public trust, must conform.
Perhaps, next in importance to the provision in paragraph 1 is that in paragraph 9 enjoining a public officer “not to do or direct to be done, in abuse of his office, any arbitrary act prejudicial to the rights of another person knowing that such act is unlawful or contrary to any government policy” (emphasis supplied). The provision addresses more squarely the problem of abuse office. It is reinforced by the provision in section 15(5) of the Constitution directing the state to “abolish all corrupt practices and abuse of power”.
Paragraph 13 of Code is also worthy of note. A person fronting for a public officer in the perpetration of corrupt practices or abuse of office is a “nominee, trustee or other agent” within the meaning of the paragraph; accordingly, the President or any other public officer perpetrating corrupt practice or abuse of office through a front “shall be deemed ipso facto to have committed a breach of this Code” under the said paragraph 13.
Sanctions for breaches
The Code prescribes sanctions for breaches of its stipulations and a machinery for their enforcement. The sanctions are in general, unelaborated terms, viz “(a) vacation of office or seat in any legislative house, as the case may be; (b) disqualification from membership of a legislative house and from the holding of any public office for a period not exceeding ten years; (c) seizure and forfeiture to the State of any property acquired in abuse or corruption of office,” and (d) “such other punishment as may be prescribed by the National assembly” (paragraph 18, Fifth Schedule).
The enforcement machinery consists of a Code of Conduct Bureau (CCB) and a Code of Conduct Tribunal (CCT). The former is entrusted with the responsibility to (a) receive declarations of assets by public officers; (b) to examine such declarations; (c) to keep custody of them; and (d) receive complaints about non-compliance with or breach of the provisions of the Code or any law in relation thereto, investigate the complaint and, where appropriate, refer such matter to the Code of Conduct Tribunal: (para 3, Third Schedule).
The Tribunal is to try such complaints as are referred to it by the Bureau and, where it finds a person guilty of non-compliance with, or contravention of, the Code, impose any of the prescribed sanctions.
The statute law has two main enactments on corrupt practices, supplementing the relevant provisions of Criminal Code and the Penal Code. These are the Corrupt Practices and Related Offences Act 2000, and the Economic and Financial Crimes Commission Act 2004 (re-enacting an earlier Act of 2002). The offences of corruption, fraud and related offences under the former of the two Acts and the punishments prescribed for them are, by the express provision of the Act, made applicable to
“a person employed in any capacity in the public service of the federation, states or local government, public corporations or private company wholly or jointly floated by any government or its agency including the subsidiary of any such company whether located within or outside Nigeria and includes judicial officers serving in magistrates, area/customary courts or tribunals”.
They also apply to corruption, fraud or related offences committed by such persons in the discharge of their official duties in relation to the money, property or affairs of the government, federal, state or local government, arising from the award of contracts, issuance of licenses or permits, employment of staff or any other business or transaction : see sections 8, 9, 10, 11 and 12 of the Act.
Power to investigate
A body, called the Independent Corrupt Practices Commission (ICPC), is established, with power to investigate and prosecute persons, both private persons and public servants, including public servants employed in the service of the state or local governments, alleged to have committed corruption, fraud or related offence under the Act or under any other law, e.g. the Criminal Code or Penal Code, regardless of whether such other law is a federal or state law.
Complaints against the Governor of the State for corruption, fraud or related offence involving the money, property or affairs of the State Government may be made to the ICPC, but the investigation of the complaint is to be conducted by an independent counsel authorised in that behalf by a national functionary, the Chief Justice of Nigeria, under section 51(1) of the Act.
The EFCC Act has a wider coverage than corrupt practices in all its various forms, as strictly understood. Economic and financial crimes in the title of the Act is given a very wide meaning in section 46 of the Act wherein it is defined as : “the non-violent criminal and illicit activity committed with the objectives of earning wealth illegally either individually or in group or organized manner thereby violating existing legislation governing the economic activities of government and its administration and includes any form of fraud, narcotic drug trafficking, money laundering, embezzlement, bribery, looting and any form of corrupt malpractices, illegal arms deal, smuggling, human trafficking and child labour, illegal oil bunkering and illegal mining, tax evasion, foreign exchange malpractices including counterfeiting of currency, theft of intellectual property and piracy, open market abuse, dumping of toxic wastes and prohibited good, etc.” (emphasis supplied)
This definition clearly covers corrupt practices, and more besides. The Act prescribes sanctions, and gives to the Commission frightfully wide-ranging and sweeping powers to enforce them. But it seems uncalled for, and inappropriate, and will needlessly over-burden this write-up, to go into a discussion of them here. The undoubted adequacy of the laws on corrupt practices compells the conclusion that their persistence and increased incidence in the face of, or despite, the adequacy of the laws, is attributable to inadequacy of enforcement of the laws; it also raises the question as to the factors responsible for such inadequacy of enforcement.
Factors responsible for the inadequacy of enforcement of the laws: The factors responsible for the inadequacy of enforcement of the laws on corrupt practices lie in insincerity, partiality, self-interest and downright perversion or subversion on the part of the authorities. Illustrative examples of the prevalence of these factors abound, but only two cases, one involving President Jonathan and the other, President Obasanjo, need be mentioned for present purposes.
A complaint was made to the Code of Conduct Bureau (CCB) that Nuhu Ribadu, former Chairman of the EFCC, did not declare his assets as required by the Code of Conduct. In a categorical statement, the Bureau said that Nuhu Ribadu submitted no assets declarations to it either before or after his tenure in the EFCC.
The Bureau’s affirmation of that fact is conclusive of Ribadu’s failure to do so; any assets declaration said to have been found misfiled in the office of the Attorney-General of the Federation is not a proper and valid assets declaration as required by para 3 of the Third Schedule to the Constitution.
The Bureau, after due investigation, referred the matter to the Code of Conduct Tribunal (CCT) for trial, and, while the matter was pending before the Tribunal, it was withdrawn on the direction of the President, and Nuhu Ribadu freed from the charge of contravention of the Code.
The withdrawal is an assault on the Code as a device for checking and possibly eradicating corrupt practices. What makes it even more condemnable was the illegal process by which the withdrawal was effected.
Charge of contravention
It was effected by the Attorney-General entering a nolle discontinuing the proceedings before the CCT in purported exercise of the power given to him by section 174(1) of the Constitution “to discontinue at any stage before judgment is delivered any…criminal proceedings against any person before any court of law in Nigeria”.
The constitutional propriety of the withdrawal of the case based on section 174(1) raises two issues. First, is the CCT a court of law within the meaning of section 174? Second, is failure to declare assets or “to observe and conform to” the other requirements of the Code of Conduct a criminal offence under the Constitution, so as to make proceedings in a case in the CCT for such failure, criminal proceedings in terms of section 174? If the answer to either or both of these two questions is in the negative, then, section 174 is clearly inapplicable, and the withdrawal of the case against Ribadu is null and void.
The answer to the two questions is provided by the CCT itself in a case for corruption brought before it by the Federal Government (FG) under former President Obasanjo against Dr Orji Uzor Kalu, former Governor of Abia State, and in which the Governor raised as a defence, his immunity under section 308(1) of the Constitution.
The CCT, speaking through its then Chairman, Justice Constance Momoh, held the immunity inapplicable as a defence to the suit, on the ground that the Tribunal (i.e. the CCT) is not a court, but a purely disciplinary body, that it has no power to try criminal offences, and that proceedings before it are sui generis and are not civil or criminal proceedings, see Federal Republic of Nigeria v. Dr Orji Uzor Kalu, Charge No. CCT/NC/ABJ/KW/03/3/05/MI (decision delivered on 26 April, 2006).
Arrest and detention
The Federal High Court had earlier in 2004 come to the same decision in an application to it by Governor Joshua Dariye of Plateau State for an order to restrain the CCT which, at the instance of the Federal Government of President Obasanjo, had issued a warrant for the arrest and detention of the Governor for failure to declare his assets and for corruption brought against him by the FG.
In granting the restraining order against the CCT, the Federal High Court, per Justice Jonah Adah, held that the CCT, as conceived by the Constitution, is not a court of law invested with power to try criminal offences and to impose criminal punishments following upon conviction, but only a disciplinary body; that the “punishments” it is empowered to impose by paragraph 18 of the Fifth Schedule to the Constitution, are intended, not as punishments for a criminal offence in the strict legal sense of the term “punishment”, but as disciplinary sanctions designed, not really to punish, but to discipline and “keep public life clean for the public good” : see Federal Republic of Nigeria v. Chief Joshua Chibi Dariye.
Apart altogether from these two specific decisions noted above, the term “court of law in Nigeria” has a distinctive meaning under the Nigerian Constitution as referring only to courts in which judicial power is vested under section 6(1) & (2) of the Constitution and as listed in section 6(5), namely the Supreme Court; the Court of Appeal; the Federal High Court; the High Court of the Federal Capital Territory, Abuja; a High Court of a State; the Sharia Court of Appeal of the Federal Capital Territory, Abuja; a Sharia Court of Appeal of a State; the Customary Court of Appeal of the Federal Capital Territory, Abuja; a Customary Court of Appeal of a State; such other courts as may be authorised by law to exercise jurisdiction on matters with respect to which the National Assembly or a State House of Assembly may make laws.
As the CCT is not included in this list, it is not “a court of law in Nigeria” within the meaning of section 174(1) of the Constitution.
It is not clear why the Federal Government went to the extent of compromising itself by resorting to perversion of constitutional power or an illegality in order to save Nuhu Ribadu from the consequences of his contravention of the Code of Conduct.
Self-interest and subversion
Insincerity, partiality, self-interest and subversion on the part of Obasanjo in the enforcement of the anti-corruption laws is attested by the fact that he made himself a power above those laws, which could not, therefore, be enforced against him. In other words, he arrogated to himself a more or less perpetual exemption from the operation or application of the laws.
It is this more or less permanent condition of untoucheability that needs now to be removed by the new APC Government under President Buhari. The re-invigorated fight should give no quarters to a sacred cow, neither Jonathan nor Obasanjo nor even Buhari himself.
Being subject to the President’s control and direction and being also mere tools in the service of his regime of personal and autocratic rule, the Code of Conduct Bureau, (CCB), the Code of Conduct Tribunal (CCT), the Independent Corrupt Practices Commission (ICPC) and the Economic and Financial Crimes Commission (EFCC) were totally impotent to apply the anti-corruption/abuse of office laws and their sanctions against him; they were impotent even to investigate him, which is really the only sanction enforceable in actual practice against an incumbent President. In a telling confession, the then chairman of the EFCC, Nuhu Ribadu, was reported in the Vanguard newspaper of 30 January, 2007 to have said : “If I don’t do what the President asked me to do, he is going to fire me and I don’t want to be fired.” That says it all.
After filing in the Federal High Court on 23 May, 2005, his suit against President Obasanjo in respect of the presidential library project, Chief Gani Fawehinmi on 6 June, 16 June and 20 June, 2005 respectively petitioned the CCB, the ICPC and EFCC on the matter.
All three agencies duly acknowledged receipt and promised to investigate the complaint, but no action appeared to have taken on the petition in any of the agencies. It shows insincerity on the part of EFCC that it was dragging its feet on the investigation or that the investigation, if any, was not being pursued with the same vigour and zeal as its investigation of allegations against Governors Dariye, Alamieyeseigha, Fayose and others.
Vigour and zeal
The public expects to be informed of, indeed under a government where transparency is practiced, they are entitled to know, the outcome, if any, of the investigation or, if they were still going on, why it was taking so long to complete them. Immunity has nothing to do with this.
For, as the Supreme Court has held, the immunity of an incumbent President or Governor under section 308 does not protect him from investigations by the police, the CCB, the ICPC and the EFCC nor does it relieve the Bureau of the duty cast on it by the Constitution to refer, after its investigation, Gani Fawehinmi’s complaint to the CCT.
The failure or neglect of the ICPC to investigate Chief Gani Fawehinmi’s complaint is not excused by the explanation given by its new chairman, Hon Justice Ayoola, a highly respected retired justice of the Supreme Court, that, since his assumption of office in the latter part of 2005, the Commission had received no complaints against President Obasanjo.
Surely, his duty or that of the Commission to investigate and take follow-up action is not limited to complaints received after his assumption of office. Or was he suggesting that the complaints against the 26 State Governors investigated by his Commission were all received since his assumption of office?