Paying Lip Service To Anti-corruption War
The counsel shall not be given any further audience in relation to the charges against the accused either by me or any other judge of the Federal High Court. I hereby dismiss the charges amended or otherwise on the grounds of incompetence. I discharge the accused person accordingly.”
With this statement, Justice Charles Archibong of the Federal High Court sitting in Lagos State dismissed the case preferred against the former chief executive of now defunct Intercontinental Bank, Erasmus Akingbola. Akingbola was facing a 22-count charge for allegedly mismanaging N47.1bilion while he held sway at the bank. Curiously, five Senior Advocates of Nigeria, SAN, were engaged by the Economic and Financial Crimes Commission, EFCC, to prosecute the case on its behalf. But Justice Archibong described the five SANs as incompetent and “unmindful of the accused’s rights to have the case against him clearly stated. They have been dismissive of his rights to a speedy trial, which in reality should be the credible procedure.” The judge vowed to report the five senior lawyers to the Legal Practitioners Privileges Committee for further consideration of the issues raised.
The court dismissed every single one of the 22-count corruption charge against Akingbola. But most shocking was the fact that the Judge described the hiring of the five Senior Advocates of Nigeria, SAN, prosecuting the EFCC’s case against Akingbola as a waste of taxpayers’ money, directing the Attorney-General of the Federation to disband, sack and de-brief the present prosecuting team and their respective firms for abuse of court process. “They are a drain on the public purse,’’ he said.
And that is only one of many such cases.
The $180 million Halliburton scandal was a bang when news broke. The scandal involved the former Halliburton’s subsidiary, Kellogg Brown and Root, KBR, in respect of Nigeria’s Liquefied Natural Gas plant in Bonny. Albert J. Stanley admitted before a Houston court in the United States on September 4, 2008 that he gave more than $180million in bribe to senior government officials in Nigeria and that the bribe was channeled through Tesler in four installments of $60million; $32.5million; $51million and $23million. Tesler, 63, was in February sentenced to 21 months in prison in the US after pleading guilty in March, last year, for bribing Nigerian government officials with $132 million between 1994 and 2004. He also forfeited $149 million to US authorities under the Foreign Corrupt Practices Act, FCPA.
But an Abuja High Court Judge, Justice Abubakar Umar, struck out the suit filed by the Economic and Financial Crimes Commission against the three persons accused of involvement in the Halliburton bribery scandal. Former permanent secretary in the Office of the Head of Service, Ibrahim Aliyu; retired AVM Abdullahi Bello and Mohammed Bakari of the Urban Shelter Ltd, had faced a nine-count charge bordering on corruption and bribery, as they were accused of using their companies - Intercellular Nigeria Ltd; Sherwood Petroleum Ltd and Tri-Star Investment Ltd -- to benefit from a $7.5 million Halliburton bribe.
Justice Umar struck out the suit when the counsel to the EFCC, Kauna Pindam, requested for another adjournment to arraign the accused persons. “I will not grant any more adjournment. Remember I gave an order on January 23 that March 26 date would be the last time the court would give the EFCC chance to arraign the suspects. I gave the long adjournment to allow the EFCC to interface with its U.S. sister agency in utilising security information you said you got. I warned the EFCC that upon its failure to arraign the accused today, I will strike out the case and write to the Minister of Justice to lodge a complaint about the attitude of the commission,” he said.
The Siemens bribery scandal was another lost case for the EFCC. The scandal was uncovered shortly after the German police invaded the Siemens headquarters in Germany over allegations that the company offered bribes to Nigerians, Libyans and Russians to get contracts. The telecommunications firm had in 2007, admitted that it had uncovered more than 1.3bn Deutschmarks in suspicious payments, out of which 10m Deutschmarks was allegedly given as bribe to some Nigerians. The company had admitted wrongdoing and was fined 201m Deutschmarks by a Munich court on October 4, 2007. Former telecommunications ministers mentioned in the scam are Chief Cornelius Adebayo, Dr. Mohammed Bello, late Chief Haruna Elewi, and Maj. Gen. Tajudeen Olarenwaju (rtd). Also named as recipients were Senator Jubril Aminu and senior officials of the Nigerian Telecommunications Limited; Nigeria Immigrations Service; the ministry of communications; legal adviser of NITEL, Mr. Samson Olabiyi; a secretary in the ministry of communications, one Dr. Mamza; and NITEL tenders board secretary, Mr. R. Olusanju.
Speaking for President Yar’adua at that time, Olusegun Adeniyi, the then presidential adviser on communications had said: “In this Siemens scandal, as in all cases that border on good governance and transparency, there will neither be sacred cows nor a cover-up for anybody found culpable of breaching the law.” But while all the Germans indicted in the scam have been convicted, their Nigerian counterparts still walk free.
The former speaker of the House of Representatives, Dimeji Bankole and his deputy, Bayero Nafada, who were charged to court by EFCC for misappropriation of fund to the tune of N40billion and were also accused of approving loans not covered in the 2010 Appropriation Act, also walked away free. An Abuja High Court cleared them of charges made against them. According to the judge, Suleiman Belgore, both Dimeji and Nafada had no case to answer in connection with the N40 billion misappropriation charges and the 17-count charge brought against them by EFCC.
These are just a few of the cases which the EFCC and the ICPC, too, have not been able to follow to their logical conclusion. The cases of former governor of Ogun State, Gbenga Daniel; former Governor James Ibori, who the EFCC could not successfully prosecute but who is now awaiting sentence in the UK, and several others, have made many Nigerians to ask how sincere the government is and how prepared the EFCC and other anti-graft agencies of government are in the fight against corruption.
To many Nigerians, the battle is already a lost one. Some analysts have even described it as “a cynical unending relay race,” while others say it is all a jamboree. Generally, Nigerians are beginning to lose interest in the activities of the anti-graft agencies. But while some are quick to point accusing fingers on government and other relevant agencies, others think the issue of corruption in Nigeria has gone far beyond government and the respective agencies. According to Barrister Kayode Ajulo, a lawyer and the executive director of Egalitarian Mission Africa, “we all share the blame for the failure of the anti corruption war though the law enforcement agencies. EFCC, ICPC, Police etc, should share most of the blame. That is to say, all Nigerians have a role to play in bringing corruption to its knees but the opposite is the case. It is the fault of everyone – the government, civil societies are failing.”
The Vanguard Newspaper in one of its articles agrees with this position when it wrote: “As for we the people, we are essentially hypocrites with respect to corruption in view of the large crowd of ethnic supporters, who appear in court to show solidarity with persons who are standing trial. Indeed the atmosphere at the trial of anyone charged with corruption often looks as if it is government itself that is on trial. More often than not, the real suspect triumphantly enters the court amidst ovation, which he acknowledges with his two hands like someone in a political party rally. In other words, we hate corruption but we love those accused of it; hence, when a citizen moves up into a big position, his friends and relations are quick to remind him that ‘this is our time.”
On the reasons why the country seems to be at this crossroads in the fight against corruption, the judiciary and the EFCC, the two principal bodies, which actions and inactions speak volumes of why the fight is sliding out of control, are busy trading blames. While the EFCC believes that the judiciary should take a larger knock on why cases brought before it are slowly dispensed with, the judiciary has lashed out on EFCC saying that it is never a serious anti-corruption agency in the first place.
For instance, while Farida Waziri was the chairman of EFCC, she made it clear that whatever that was wrong with the fight against corruption was the fault of the judiciary. This explained why she was persistent in calling for special courts. Mrs Waziri reportedly explained that her demand for a special court was not borne out of lack of interest in the regular courts but to ensure “that corruption cases are not stalled endlessly in the regular courts in a way that may create the impression that the nation is not committed to the anti-graft war. We have all identified corruption as our major problem and as such, we all have to identify ways of tackling the problem. We have seen how the accused persons manipulate our procedural laws and criminal justice system to frustrate and prolong their trials and that is why we have come forth with the special court option as a way out.”
On its part, the judiciary places the entire blame of the slow pace of the fight against corruption on the doorstep of the EFCC. According Justice Abubakar Umar of the Abuja High Court, the anti-corruption agency lacked the zeal to fight corruption. While dismissing one of the numerous ill-prepared cases brought against suspects by the EFCC, Justice Umar lashed on the EFCC saying, “the EFCC will be the same to run to press and complain that the judiciary is responsible for the seeming delays in disposal of cases……… The public will not understand that EFCC is responsible for the slow disposal of corruption cases. It will blame the delay on the judiciary.”
With the helplessness expressed by both the judiciary and the EFCC, Nigerians have called on the National Assembly to intervene if the nation must make headway.
It is believed that unless the National Assembly moves quickly to address this depressing slide by hastening amendments to the EFCC law to make it less beholden on government officials and political manipulations, the fight against corruption would only be a mirage. Mr. Bamidele, a journalist practicing in the nation’s capital could not agree less when he said: “Some of the problems with the EFCC arises with the law establishing it but basically with the dimension with which corruption is manifesting in Nigeria. It would be better if EFCC has a law court or a special forum through which all these cases will be deliberated. Evidences have shown that the regular courts are not immune to corruption so it’s likely that there are judges who are not above board. Even among the prosecutors, some of them are not above board so that’s why you have things like these happening.”
In a similar vein, Mr. Chris Ogodo, another journalist says the problem with the Nigerian judiciary arises from “a situation where justice has become the preserve of the highest bidder.” He cited an example of a matter he has in court against the federal government; a civil case that has been on for four years just to argue a preliminary objection. “I don’t think the judiciary is being portrayed as the last hope of the common man, rather it is the best hope for the rich. It is a huge shame,” he concluded.
But while Mrs. Waziri was blaming the judicial system for tying the hands of the prosecutor, some Nigerians blamed the corruption spree on selective prosecution and ineffective punishment, which are also an indictment on the EFCC. According to Mr. Chris Ogodo, “The problem is all encompassing but first is the competence of most of the operatives of the EFCC. Their knowledge of investigation and fraud usually calls to question the number of charges they slam on an individual. A man has stolen N1billion; why bring up about 1,001 charges. A case in point is the way they bungled the Ibori case. More than a 100 charges were preferred against him yet the judge said he did not find anything untoward about that case and discharged Ibori but you know that the same former governor of Delta of State is awaiting sentence, having been found guilty of about four charges of corruption, false enrichment, fraud, impoverishing the people of the state to enrich his own pocket.”
Ihuoma Chiedozie, a public affairs analyst, in one of his recent comments in a national daily came down hard on the EFCC. “While it is true that any accused person, including those being tried by the Economic and Financial Crimes Commission, are presumed innocent until proven guilty, the recent striking out of two of the most prominent corruption cases by different courts for want of diligent prosecution suggests a fundamental flaw in the anti-corruption campaign.
“Besides being corruption matters, the cases were not related in any way but the two courts had a similar reason for dismissing the suits – want of diligent prosecution. Interestingly, the two high profile suits were initially seen as further demonstration of the EFCC’s resolve to bring all perpetrators of financial crimes, no matter how highly placed they may be, to book. Alas, both cases ended in an anti-climax, a far cry from the massive media blitz and public appeal that heralded their commencement,” he said, adding that “the anti-corruption campaign seems to be failing where it matters most – the courtroom.”
It therefore did not come as a surprise when Barrister Kayode Ajulo came down hard on the EFCC, saying, “the prosecution team of the EFCC should be disbanded and there should be a policy to bring credible lawyers and civil societies to monitor corruption cases in Nigeria.” In the case against Akingboola, Justice Charles Archibong also accused the lawyers of trying to ‘scandalise’ the court, calling their actions “serious and professional incompetence.” Also, in the Halliburton case, an obviously disappointed Justice Abubakar Umar said there was no reason for the case to still be at arraignment stage one year after proceedings began. He therefore warned the EFCC: “I have checked my records and in the past one year, since February 17, 2011 when I granted leave to the prosecution to arraign the accused; they have not done so. It has been over a year now and still the EFCC is coming up with excuses. The EFCC should know that if it is not ready to prosecute and bring cases to conclusion, it should not apply for leave of court to arraign anybody,’’ he said, cautioning the EFCC not to expose the judiciary to ridicule.
Mr. Ogundana believes too that the EFCC has to look inwards as he says there have been cases of missing files even before the case is heard, and cases where the prosecutor says one thing and the investigator says another. He also came down hard on the entire system when he said: “There’s no way we will be able to make headway unless we gain the experience in terms of legislation, in terms of performance of the judiciary, in terms of even the behaviour of the executive, thus respecting the laws of the game. So it will take time for the judiciary to learn to take things serious, to say that ‘we are the livewire of a democracy.’ Until the Nigerian judiciary takes that one step, we will not make headway.”
In the British system, the judiciary plays its role, the investigators play their role and everybody works together towards achieving the desired results. But it’s not so in Nigeria. There have even been cases where a serving attorney general of the federation was trying to disrupt the role of the EFCC, so it’s going to be difficult to get a conviction in that kind of situation, where the attorney general is sympathetic to the cause of an accused person. The legislation, therefore, has to be put in place to make the EFCC stronger and more independent.
For instance, Watergate in the United States and the ‘Profumo’ Affair in the United Kingdom were watersheds scandals that rocked governments, proving that no one, no matter how powerful in government, was above the law. While the later saw a serving minister being forced to step down, the former forced the resignation of a president. But in the case of the EFCC, there have been series of high profile corruption scandals, none of which has been conclusively determined by the courts. This means that despite the rape of public treasuries and other acts of mis-governance, no ranking official, executive or legislature, has been held to account. The EFCC is either powerless due to highly placed interests, or is complicit in perpetuating corruption. So, economic and political crimes that cost the country huge resources end up being treated with kid gloves.
After the initial media frenzy that greets every corruption charge, the EFCC decides to prosecute what is heard is a conspiracy of silence and lose cases in different courts after series of adjourned court cases; conspiracy to sweep the case under the carpet or the ‘controversial’ plea bargaining. The politician, who had been charged for corruption, becomes triumphant and jubilant with smiles on his face.
So from the (Diepreye) Alamieyeseigha money laundering case; the national I.D card controversy; Haliburton and Siemens scandals; the missing case files of about 32 past and serving state governors from the EFCC’s stable to the Femi Fani Kayode and Aborishade airport contract scams; the Mallam Nasiru El-Rufai family and friends Abuja plot scandal; the case involving Erastus Akingbola; Cecillia Ibru and other colleagues; the Bankole and Nafada bank loan case; the prosecution of former governors; the Independent Power Project, IPP scandal; the cases involving former Governors James Ibori, Lucky Igbinedion, Gbenga Daniel, etc., these cases of corruption and scandals have seen little or no case of guilt and eventual prosecution of the accused individuals. This therefore calls into question the efficiency and viability of the EFCC and its ability to wage the anti-corruption war.
To some, these seeming “barking without biting” can be traced back to the creation of the EFCC. According to a commentator, Raheem Oluwafunminiyi, in his piece titled ‘The EFCC As A Humour Merchant,’ “EFCC was an institution set up without putting in place major nitty-gritty which makes anti-corruption tick, or how can one explain the confusion in defining a clear cut distinction between the powers of the EFCC and those of the Office of the Attorney General, thereby causing friction when issues of handling high profile corruption cases come up, and which is mostly of interest to the latter. Aside this, it is still unbelievable to know that the commission’s chairman, who though is selected among the top echelon of the police, is still dictated to under the whims and caprices of the IGP.”
But Mr. Chris Ogodo offers some rays of hope when he said: “I tell you that it’s not a blanket failure for the EFCC. Statistically, it might not be anything comparable to those cases they have lost and those they have won but there are still good prosecutors like Festus Keyamo. He did a fantastic job getting conviction