Lawyers and the Anti-Corruption War – Femi Falana SAN

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Femi-Falana
Femi Falana SAN

Disappointed in lawyers because of their manipulation of the legal system during his lifetime, the Lord Jesus Christ did not spare them. Apart from accusing lawyers of hiding the key of knowledge, Jesus proceeded to curse them when he said, “woe to you lawyers also because you load people down with burden they can hardly carry, and you yourselves will not lift a finger to help them”. See Luke 11:46.  The famous English writer, William Shakespeare, was much more impatient with lawyers as recorded in the history play,   Henry VI.  There was a rebellion. Dick the butcher was a leading member of the rebellion. Convinced that lawyers would invoke the law to oppose and put down the rebellion Dick said: “The first thing we do, let’s kill all the lawyers.”

Today, many Nigerians will join Dick in demanding that all lawyers be killed to prevent them from frustrating the war against corruption. As far as such people are concerned, lawyers have committed the unpardonable crime of aiding powerful criminal suspects to escape justice. Lawyers have been accused of resorting to technicalities to perpetrate injustice and colluding with judges to justify the rigging of elections and setting corrupt public officers free while jailing petty criminals. Although the general perception of lawyers and their role in the society may be erroneous, it cannot be denied that some Nigerian lawyers have contributed to the subversion of democracy and promotion of corruption in the country. It is, therefore, important to continuously examine the role of lawyers in the society.

As far as Transparency International is concerned, corruption is the abuse of entrusted power for private gain. Corruption can be classified as grand, petty and political, depending on the amounts of money lost and the sector where it occurs.

Although corruption is not defined by the Independent Corrupt Practices and Other Related Offences Commission Act (CAP C31) Laws of the Federation of Nigeria, 2004, Section 2 thereof states that it includes “bribery, fraud and other related offences.” The Economic and Financial Crimes Commission (EFCC) Act (CAP E1) Laws of the Federation of Nigeria, 2004 has comprehensively provided for economic and financial crimes. Accordingly, the Commission established by the law is charged with the responsibility to enforce the provisions of the Money Laundering Act, Advance Fee Fraud Act, Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act, Banks and Other Financial Institutions Act, Miscellaneous Offences Act and any other law or regulation relating to economic and financial crimes.

Professor Osita Nnamani Osita once said, “the level of official corruption and moral degeneracy in our land is damming and agonizing. The ills are not only deep, but also pervasive, covering all institutions and private lives. The value system has been completely distorted. The State and its parastatals has become highly desired and prices, the control of which automatically leads to instant wealth. Any person who held government position and came out poor is generally regarded as foolish. Corruption has become a way of life in Nigeria”. In as much as the observations of the learned scholar   may be correct it ought to be pointed out that the Nigerian people are not inherently corrupt. In other words, corruption has become pervasive due to the dependent capitalist system imposed on the country coupled with the reckless impunity of the ruling class in Nigeria.

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In the bid to combat corruption, a number of laws have been enacted by the federal government.

A cursory examination of the ant-graft laws in Nigeria reveals that there are sufficient laws to deal with the menace of corruption. Apart from the EFCC Act and the ICPC Act, the Code of Conduct Bureau and Tribunal Act etc., the Police is also vested with the responsibility of investigating corruption and related crimes. There is also the Public Accounts Implementation Tribunal Act Cap P 36 LFN 2004, which provides for the setting up of a Tribunal to recover from public officers, contractors or companies funds misappropriated or due to the Government of the Federation. The Tribunal is to be composed of a retired judge, representatives of the AGF, Auditor-General, Accountant-General and police officer not below the rank of a Commissioner of Police. Under the Public Property Special Provisions) Act LFN 2004, the President is empowered to set up a panel to recover public properties.  The law has prescribed life imprisonment for any person convicted for unjust enrichment and 21 years jail term for false declaration of assets.

So, there is enough legislation to deal with corrupt practices, drug trafficking, human trafficking, terrorism and other dangerous offences. It is the lack of political will on the part of the ruling class coupled with the manipulation of the legal system by powerful litigants and senior lawyers who have continued to frustrate the investigation and prosecution of corruption cases. No society can successfully challenge criminality where impunity is the order of the day. Since the courts have a penchant for granting bail in corruption cases the prosecution should stop opposing applications for the bail of criminal suspects. In other words, the prosecution and the defence counsel should agree on the conditions to be attached to bail to enable the defendants to stand trial. However, where the parties are unable to reach an agreement the trial judge should impose bail conditions that are commensurate with the gravity of the offence. The procedure will save the precious time wasted on arguing   applications for bail, which are going to be granted, in any case.

We have seen how the weakness of the criminal justice system has been exploited by lawyers to frustrate the trial of politically exposed    persons and top corporate bodies.  It is a development which has compelled the anti graft agencies to outsource justice to the detriment of our national integrity.  Even though there are enough anti graft laws in the statute books there is no political will to ensure the prosecution of corruption cases in a manner that the menace of corruption is reduced to the barest minimum. Fighting corruption with a view to eliminating it will require a challenge of the capitalist system whose morality is influenced by fraud and exploitation. Since the ruling class will not deliberately commit class suicide, the progressive members of the legal profession should forge a political alliance with the working class towards the creation of a new society, which will be committed to the actualisation of the fundamental objectives enshrined in   Chapter II of the Constitution. Without a new political morality based on the security and welfare of the majority of citizens, corruption cannot be fought and defeated.

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To the extent that some funds have been recovered while a number of suspects have been charged to court the fight against corruption may be said to be on course. But the government has to do much more to promote accountability and transparency in government. Since the federal government has not made any appreciable progress in the recovery and repatriation of the nation’s looted wealth the Nigerian judiciary should not hesitate to grant Mareva injunctions in respect of the funds and other assets which have been criminally diverted by a number of unpatriotic public officers. While people charged with corrupt practices are entitled to individual defence counsel, the NBA ought to collaborate with the federal government in the fight against corruption including the repatriation of the nation’s resources.

In exercise of my right under the Freedom of Freedom of Information Act, I have had cause to request the Nigerian National Petroleum Corporation (NNPC) to provide information on fuel importation. As it has no answer to the questions, which I raised, the NNPC claimed that it is “not a public institution.”  In justifying the rejection of our request for information with respect to the shameful importation of fuel by Nigeria, a leading oil producing nation, the NNPC Counsel claimed that the Corporation is not bound by the provisions of the Freedom of Information Act. With respect, the misleading submission of the Counsel does not seem to historically represent the position of the Management of the NNPC.

It is on record that the NNPC Management had once dissociated the Corporation from a similar view credited to the NNPC Legal Department. During the induction ceremony for newly recruited Graduate Trainees held at the NNPC Towers in Abuja on August 10, 2012, the then NNPC Group Managing Director, Mr. Andrew Yakubu, recalled that following the enactment of the Freedom of Information Act the NNPC Management had swiftly established a Task Force with the goal of examining the law and advising management on how best to comply with its provisions. In fact, Mr. Yakubu said, “long before the Freedom of Information Act came into force, the NNPC has been maintaining an open door policy which sees it volunteering information to its various policies through press releases, advertorials and presentations at different forums including hearings at the National Assembly.”

It was on the spirit of ensuring that its activities and operations live up to public scrutiny that NNPC disregarded the legal opinion of the Counsel when it recently informed a bewildered nation that the corporation had spent $5.8 billion for the importation of fuel in just two months of this year and that N744m is incurred daily as fuel subsidy. The decision to give details of the cost of importation of fuel has exposed the claim of the Counsel that such matters are “trade secrets” which cannot be disclosed “in the public interest” under the Freedom of Information Act. Since the Board and Management of the NNPC have not had cause to renounce the commitment of the Corporation to comply with the provisions of the Freedom of Information Act it   ought to make it clear to the Counsel that the days of opacity in the running NNPC are over. More so, President Mohammadu Buhari stated during the inauguration of the current NNPC board on November 18, 2016 a follows:  “Since the arrival of this administration, there has been an improvement in transparency through publishing monthly operational and financial report of the Corporation. “

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With respect to the erroneous submission that the NNPC is not a public institution it is embarrassing that the Counsel did not advert her mind to Section 2(7) of the Freedom of Information Act which has defined public institutions to mean “all authorities whether executive, legislative or judicial agencies, ministries and extra-ministerial departments of government, together with all corporations established by law and all companies in which government has a controlling interest, and private companies utilizing public funds, providing public services or performing public functions.”  Contrary to the untenable contention of the Counsel, the NNPC is a public institution as the federal government has controlling interest in it and it is utilizing public funds to provide public services. Indeed, because the NNPC is a public institution   its budget is appropriated by the National Assembly while its accounts are audited by auditors appointed by the Auditor- General of the Federation in line with section 85 of the Constitution.  Furthermore, in exercise of its oversight functions the National Assembly regularly conducts investigation into allegations of corrupt practices against the corporation. Of course, the NNPC Board reports to President Buhari in his capacity as the head of the federal government while the NNPC Management reports to him as the Minister of the petroleum resources. It is, therefore, preposterous to say that the corporation is not a public institution.

Members of the legal profession are increasingly being blamed by the   Nigerian people because of the strong perception that lawyers and judges are using the law to suppress the quest for a better society.  This is a very dangerous perception that must be addressed timely. Lawyers have a duty to the nation and the society to see to it that corruption and impunity are fought diligently and uncompromisingly. As defenders of human rights and the rule of law lawyers should be committed to the eradication of corrupt practices and impunity.

Nigerians on their part must change their perception and disposition to public office. Citizens have a duty to continually hold public officers accountable for their actions. The passage of the Freedom of Information Act into law has given members of the public the weapon to ask legitimate questions on the management of the affairs and resources of the country. The civil society movement and the human rights community should redouble their efforts in the struggle to free our nation of corruption. The battle to save our nation from corruption has to be collectively fought and decisively won.

Falana, a Senior Advocate of Nigeria and human rights lawyer, writes from Lagos

ThisDay

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