By Tayo Oyetibo, SAN
CORRUPTION is a hydra headed monster and canker worm that has eaten deep into the socio-politico-economic fabric of Nigeria. The news from both print and electronic media as well as social network on corruption, corrupt practices and kindred activities is, to say the least, alarming.
And for me, the turning point for us, as a people is here. Turning point because of the urgent needs to rethink what we consider as core national values, ethos and principles that will define and drive our aspirations as a Country.
The lofty and well cherished ideals expressed as the Fundamental Objectives and Directive Principles of State Policy set out in Chapter 2 of the Constitution of the Federal Republic of Nigeria, 1999 cannot be achieved in an environment riddled with corruption. The Makers of the Constitution recognised this fact when it is provided in section 15 (5) of the Constitution as follows: ‘’The State shall abolish all corrupt practices and abuse of power’’.
However, serious doubt is cast on our preparedness and commitment to fighting corruption when the above provisions and other provisions in Chapter Two of the Constitution are made non justiciable by the same Constitution which provides in section 6 (6) (c.) as follows: ‘’6.(6)
The judicial powers vested in accordance with the foregoing provisions of this section- (c.) shall not, except as otherwise provided by this Constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution’’
It would therefore seem that what was given by the right hand is taken away by the left hand. However, we don’t need a perfect written Constitution or Legal instrument for us to achieve good governance, transparency and accountability in the conduct of our political and economic affairs.
What we need, in the main, is a body of disciplined, responsive and responsible leaders i.e. inwardly corrupt free individuals1 genuinely driven by patriotism and nationalism, to run our political and economic affairs.
Core national values, ethos and principles constitute decisive factor in the new or renewed consciousness for patriotism and nationalism. Therefore, this round table strategic talk is coming at a right time because it holds the expectation that the refined, sound and objective minds assembled here today by SERAP, will contribute to the debate from which an action plan may be formulated for the containment of corruption in all facets of our national life. It is my pleasure to lead the debate.
Suggestions for Improving the Effectiveness of Anti-Corruption Mechanisms
We have seen from the above that there is no paucity of anti-corruption laws in Nigeria. What then is the problem with us as a Nation? Why the monumental corruption that has bedevilled the Nation and formed the bedrock of the current socio-economic woes that are plaguing the Nation?
Is there something fundamentally wrong with us as a people that we cannot resolve genuinely to stamp out this evil monster and enemy of humanity called corruption? We refuse to accept any postulation or notion that corruption is part of our culture in Nigeria.
Rather, we are persuaded in our view that the inadequacies of the system and poor leadership have accentuated the problem of corruption in Nigeria. In this wise, we are of the view that the State ought to adopt certain measures aimed at improving the effectiveness of anti-corruption mechanism and the justice system in Nigeria. These are:
Proper And Thorough Investigation Of Corruption Cases: The importance of proper and through investigation of cases in the fight against corruption cannot be overemphasised. Thus corruption threatens the peace and security of the Society.
Politically exposed persons have amassed huge wealth from their corrupt practices and are so financially endowed that they could use their position to supress, destroy or even ‘’kill’’ evidence.
The investigation of crime is the foundation upon which any subsequent criminal trial will be based. Any deficiencies therefore in the investigations of crime will inevitably lead to a deficient criminal trial. For this reason, the statutory agencies responsible for the investigation and prosecution of corruption cases, ought to be strengthened by the employment of skilled personnel in the investigation of the person(s) involved. It does great disservice to the criminal justice system when an investigating officer who has no experience whatsoever in banking or finance is saddled with the responsibility of investigating a huge banking fraud or case in which the tracing of money which had passed through the banking system is involved. Also, card fraud and online identity theft are now arguably two of the fastest growing computer crimes facilitated by a combination of phishing and malware28.
The growth and development of the internet and World Wide Web has facilitated the transition from computer crime to cybercrimes. Thus, malicious activities have increasingly become web based.29 Under our accusatorial criminal justice system, it is the duty of the Prosecutor to gather evidence to prove his case beyond reasonable doubt, yet, many corruption cases have been lost on the altar of lack of sufficient evidence. It has to be well understood that Judges do not manufacture evidence nor do they decide cases on the basis of sentiments. In this regard, it will be useful to refer to the notable pronouncement of that eminent Jurist of the Supreme Court, Udo Udoma JSC, in a passage contained in his Judgement in the case of Elias V Omobare30 where he said:
‘’This case clearly cries to high heaven in vain to be fed with relevant admissible evidence. The Appellant woefully failed to realise that Judges do not act like the oracle at Ife, which is often engaged in crystal gazing and thereafter would proclaim a new Oba in succession to a deceased one. Judge cannot perform miracles…and least of all manufacture evidence for the purpose of assisting a Plaintiff to win his case’’.
Indeed, the burden of the prosecution in gathering evidence when investigating corruption cases should be measured by the standard of proof required of criminal cases which is proof beyond reasonable doubt.31 In light of the forgoing, we are of the view that any attempt to improve the effectiveness of anti-corruption mechanism and the justice system in Nigeria must begin with the employment of skilled and experienced officers to investigate corruption cases. It does great disservice to the administration of justice and to public respect for the law when a person who has engaged in very serious corrupt practices escape punishment simply because of inefficient investigation leading to non-availability of material evidence with which the case of the prosecution could be established32
Avoidance Of Undue Delay In The Trial Of Corruption Cases: Our Courts ought to ensure a criminal justice system in which persons accused of corruption offences are promptly tried with a view to delivering a verdict within a reasonable time. The use of criminal justice system as a tool in the fight against corruption cannot be over-emphasized. If the Citizenry are assured of a swift criminal justice procedure that ensures a three-way traffic justice system in which there is justice to the State, justice to the Accused who is alleged to have committed the crime and justice to the victim of the crime within a reasonable time, then it will serve as a deterrent to potential offenders that if caught in their act, they will be swiftly dealt with. This is the greatest antidote to impunity in the fight against corruption.
Adoption Of The Doctrine Of Punitory Disgorgement:
It is submitted that our anti-corruption mechanism and justice system in Nigeria would be greatly strengthened by the application of what I have called ‘’Doctrine of Punitory Disgorgement”. Part of the political objectives of this nation as enshrined in section 15 (5) of the Constitution of the Federal Republic of Nigeria, 1999 is that the State shall abolish all corrupt practices and abuse of power. It is our view that the objective of the abolition of corrupt practices can only be achieved if corruption is not only unprofitable, but unattractive and uninteresting to public officers and other persons concerned.
In achieving this objective, we advocate the adoption of the doctrine of ‘’Punitory Disgorgement’’ whereby a person who is found guilty of having committed an offence involving corruption as a result of which either the Defendant or any other person has been enriched at the expense of the State is made to undergo what is called punitory disgorgement, the elements of which are as follows: (a.) Refund or return of 100 percent of the public fund involved to the coffers of the State;(b.).
Payment or forfeiture to the State of any commercial gain which had accrued to the offender or any other person from the use of the fund; or (c.) In the event of the State not being able to trace the commercial gain that has accrued to the offender, payment to the State of fifty percent of the value of the public fund which the offender might have been found to have stolen or otherwise enriched himself with.
It is to be noted that the offender under this doctrine of punitory disgorgement cannot be said to have been subjected to double jeopardy because the return of hundred percent of the public fund involved does not take away anything belonging to him since the money being returned ordinarily belonged to the State. The only punishment he is being subjected to is either the forfeiture of the commercial gain that has accrued to him or fifty percent of the value of the public fund involved33. It is submitted that the imposition of a fine of an amount lesser in quantum than the amount by which a public officer or any other person is found to have enriched himself at the expense of the State is a juridical encouragement of indigenous spoliation. For this reason, we advocate that our criminal justice system ought to adopt the doctrine of punitory disgorgement34 so as to make corruption not only unprofitable but also completely unattractive and uninteresting to public officers and other persons concerned.