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.
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.
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. “
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
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.
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.
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. “
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
Read more https://www.nairalaw.com/lawyers-and-the-anti-corruption-war-by-falana-san/