AUTHOR: ENIOLA HEPHZIBAH AKINOSO
Student (LL.B), Faculty of Law, University of Lagos.
Nigeria can be likened to a delicious looking doughnut, filled with resources as dough but with a very big hole in the middle. This hole is Corruption.
Every sector in Nigeria today; from the Energy sector to the Education, Sports, Manufacturing, Fiscal, and appallingly even the Legal sector, are blatantly corrupt. It is all pervasive. The impact of Bribery, which is just an element of Corruption alone, according to Christine Legarde, the Managing Director of the IMF, at the opening ceremony of the International Bar Association Conference, Washington DC in September 2016, “is at least $1.5 to $2 trillion – approximately 2% of the global GDP”.
Corruption is derived from a Latin word “corruptus” which means to break or destroy. Public corruption, generally defined as the abuse of public office for private gain, afflicts economies at all stages of development. Corruption thwarts countries efforts to deliver sustainable and inclusive growth by diminishing fiscal capacity, deterring investment, perpetuating inefficiency and entrenching poverty and inequality. Numerous, even uncountable examples can be drawn upon, from the Panama Papers issue to the whistle-blowing circus that rocks our newspapers every day to billions of naira and dollars found even with those in the highest echelons of our society. It is indeed a cankerworm that has eaten deep into every recess of our society.
The crux of this paper is to bring to light the burning need for our Judiciary to be checked by a higher, external power. A need which goes against the fundamental tenets of Sovereignty but which has been brought upon us by the debilitating effects of Corruption on our Rule of Law.
THE LEGAL BACKDROP
Section 14 of the 1999 Constitution provides for the Sovereignty of the People thus:
“Sovereignty belongs to the people of Nigeria from whom government through this constitution derives all its powers and authority.”
Section 1(1) of the 1999 Constitution provides for the Rule of Law thus:
“This Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria.”
Section 1 (3) of the 1999 Constitution provides that
“If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.”
Sovereignty evinces supremacy, originality, permanence, infallibility. Grotius, a Dutch jurist, defined Sovereignty as the “… Sovereign political power vested in him whose acts are not subject to any other and whose will cannot be over-ridden.” The sacred provisions in our ‘grundnorm’; the Sovereignty of ‘We the People of the Federal Republic of Nigeria who having firmly and solemnly resolved, to live in unity and harmony as one indivisible and indissoluble sovereign nation …’ as stated in the preamble, now seems feckless. Our will has been undermined by an innate need for external help. Corruption has corroded our economy and now we are forced to bow our heads in submission.
Section 6 of the 1999 Constitution empowers the Judiciary thus:
- The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.
- The judicial powers of a State shall be vested in the courts to which this section relates, being courts established, subject as provided by this Constitution, for a state.
- The judicial powers vested in accordance with the foregoing provisions of this section
- Shall extend, notwithstanding anything to the contrary in this constitution, to all inherent powers and sanctions of a court of law
- Shall extend, to all matters between persons, or between government or authority and to any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.
It is thus reasonably inferred, that the Judiciary ordains the fate of any matter between individuals inter se and between the state and the individual(s) in Nigeria. This power secures the Judiciary as a key player, playing a pivotal role in all Corruption matters in Nigeria.
Local statutes to combat Corruption abound, they include inter alia; The Criminal Code Act Cap. C28 LFN 2004, The Penal Code Act Cap. P3 LFN 2004, The Corrupt Practices and Other Related Offences Act Cap C31 LFN 2004, The Economic and Financial Crimes Commission (Establishment) Act 2002 Cap E1 LFN 2004, The Miscellaneous Offences Act Cap M17 LFN 2007, The Money Laundering (Prohibition) (Amendment) Act 2012.
The Criminal Code provides in Section 98 thus;
(1) Any public official who‐
(a) corruptly asks for, receives or obtains any property or benefit of any kind for himself or any other person; or
(b) corruptly agrees or attempts to receive or obtain any property or benefit of any kind for himself or any other person, on account of‐
(i) anything already done or omitted, or any favour or disfavour already shown to any person by himself in the discharge of his discharge of his duties of his official duties or in relation to any matter connected with the functions, affairs or business of a government department, public body or other organisation or institution in which he is serving as a public official; or
(ii) anything to be afterwards done or omitted, or any favour; or disfavour to be afterwards shown to any person, by himself in the discharge of his official duties or in relation to any such matter as aforesaid,
is guilty of the felony of official corruption and is liable to imprisonment for seven years.
The Economic and Financial Crimes Commission (EFCC) Act establishes in its Section 1(1),
“…the Economic and Financial Crimes Commission which shall be constituted in accordance with and shall have such functions as are conferred on it by this Act.”
Section 6 provides for the functions of the Commission which include the
“Investigation of all financial crimes including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, futures market fraud, fraudulent encashment of negotiable instruments etc.; the adoption of measures to identify, trace, freeze, confiscate or seize proceeds derived from terrorist activities, economic and financial crimes related offences or the properties the value of which corresponds to such proceeds; the adoption of measures to eradicate the commission of economic and financial crimes.
By Section 7(1), “The Commission has power to –
(a) cause investigations to be conducted as to whether any person, corporate body or organization has committed any offence under this Act or other law relating to economic and financial crimes
(b) cause investigations to be conducted into the properties of any person if it appears to the commission that the person’s lifestyle and extent of the properties are not justified by his source of income;
(2) The Commission is charged with the responsibility of enforcing the provisions of:
(a) the Money Laundering Act 2004; 2003 No.7 1995 N0. 13
(b) the Advance Fee Fraud and Other Fraud Related Offences Act 1995;
(c) the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act 1994, as amended;
(d) The Banks and other Financial Institutions Act 1991, as amended; and
(e) Miscellaneous Offences Act
(f) Any other law or regulations relating to economic and financial crimes, including the Criminal code of penal code.”
Part IV deals with different offences under the EFCC Act and their penalties. Section 17 provides for “…imprisonment for a period of not less than 5 years or a fine equivalent to 5 times the value of the proceeds of the criminal conduct or to both such imprisonment and fine for the offence of Retention of proceeds of a criminal conduct”. Section 18 provides that “A person who engages in the acquisition, possession or use of property knowing at the time of its acquisition, possession or use that such property was derived from any offence under this Act; or engages in the management, organisation or financing of any of the offences under this Act, shall be imprisonment for a term not less than two years and not exceeding three years.”
These provisions and numerous others that deal with different aspects of Corruption exist for the Judiciary to interprete, adjudicate on, check government actions, protect human rights and uphold the rule of law. However, when the Rule of Law is weak, Corruption will thrive.
THE RULE OF LAW AND THE JUDICIARY
It is trite that the principles of the Rule of Law as espoused by A.V Dicey and further posited by H.R Wade are Supremacy of the Law, Equality before the Law and The Principle of Individual Rights. It logically follows, that for these principles of the Rule of Law to be upheld, there must be an independent Judiciary. Nigeria operates an adversarial system of law which means that the Judge must not descend into the arena nor raise and resolve a point suo motu but must remain an independent umpire, deciding a case on its merits and on the submission of the parties.
A walk down memory lane and a perusal of the news tabs show that there is a severe crisis of confidence in the judicial arm of Government. Examples too numerous and over-flogged have begged the question whether it is Corruption or the Judiciary that is Nigeria’s most embarrassing enemy. What with the arrest of certain judicial officers including Supreme Court Justices in search of evidence for alleged corruption against them to the almost hackneyed belief that election petition judges will surely turn out to be millionaires in a very near future to the attitude displayed by some Justices in open court that alludes to partiality in no small measure.
It is found that the courts don’t meet the expectation of the people in the discharge of its fundamental constitutional obligations. The consensus is that the corrupt elements in the court system and the bar have given the entire sector an almost irredeemable bad name. Our Judiciary is thus not so independent.
AN INDEPENDENT CHECK
A solution dawns in the horizon by the common goal of the International Bar Association (IBA) and International Monetary Fund (IMF) in fighting corruption in the public and private sector. As regards the Judiciary, the IBA founded the Judicial Integrity Initiative (JII). Undertaken to identify the patterns underlying corrupt behaviour in the Judiciary, the survey involved 1,577 legal professionals from 120 countries. It aimed to provide the JII with a clear picture of the types of corruption affecting judicial systems and the roles played by legal professionals operating within them.
The IBA President, David Rivkin, in his welcome address at the opening ceremony of the IBA Conference in Washington DC on 18th September 2016, explained the rationale behind the JII and its relevance in the context of the results of the survey thus: “Unless a Judiciary is corruption-free, all of the other efforts to prosecute and eliminate corruption cannot succeed. As the world’s leading organisation of lawyers, bar associations and law societies, the IBA has a particular responsibility to combat judicial corruption where it occurs. Raising awareness of the legal consequences of judicial corruption and combatting it through practical actions and promoting the highest standards of integrity among judges, prosecutors, court personnel and lawyers are duties for all in the legal profession.”
Pursuant to the survey, the JII has put together a series of projects that it hopes will tackle some of the issues raised in the survey. The first key initiative is the Anti-Corruption Compact designed to be signed by judges, lawyers, prosecutors and court administrators in which they make a personal commitment not to engage in corrupt acts and to report corrupt activities if and when they see them. The aim is that the National Bar Association will publish the compact and its signatories on their websites.
The second initiative is by conducting a study of National Laws and seeing whether they capture the corrupt practices identified. The third initiative is by creating a set of judicial standards by which they can be investigated, audited and potentially certified. This will create competition between countries to bring their system up to the level where they can be certified because certification will be a major driver for investment. The fourth initiative is to identify how judicial corruption has been investigated and has not been effective and to provide best practice compilations that can be used by bar associations.
The role of the IMF in fighting corruption is by providing mitigating solutions to strengthen the rule of law and increase fiscal transparency. Following the Maidan Revolution in 2014, the new government of Ukraine invited the IMF to assist them in conducting a comprehensive diagnostic study of corruption. It was found that corruption was pervasive and oppressive; that the business climate was severely hampered by an over-bearing and opaque regulatory framework; and that the Judiciary was ineffective.
The IMF report was candid and hard-hitting. And to their credit, the Ukrainian authorities agreed to publish it. It guided IMF engagement in fighting corruption in Ukraine along four key areas. Firstly, by legislative reforms to strengthen the laws on procurement, anti-corruption, asset disclosure by public officials, and anti-money laundering. Secondly, by establishing a new anti-corruption agency with the active support of civil society. Thirdly, by strengthening the business climate by streamlining and simplifying the regulatory framework and lastly, by judicial reform, to enhance its independence and integrity.
CONCLUSION & RECOMMENDATIONS
As it has been established that the Judiciary is a key player in Corruption matters, without a Judiciary that is corruption-free, all other efforts to prosecute and eliminate corruption cannot succeed. Hon. Justice Uwais once said “A corrupt judge is more harmful to the society than a man who runs amok with a dagger in a crowded street. The latter can be restrained physically but a corrupt judge deliberately destroys the moral foundation of society and causes incalculable distress to individuals through abusing his office while still being referred to as honourable.”
Flowing from this, this writer posits that the brilliant, novel JII initiatives of the IBA need to be adopted in Nigeria posthaste, due consideration given to local circumstances.
This writer also asserts that Ukraine’s example should be followed and such an invitation be made to the IMF for the comprehensive diagnosis of corruption in our judicial system. There will follow a deep institutional overhaul that would enhance integrity in the Judiciary and would be critical in mending the trust divide and imposing confidence in the very institutions that are essential for upholding the Rule of Law.
A key point to espouse here is that the Ukraine authorities’ willingness to expose the extent of the problem allowed the IMF to work with them to make fighting corruption a key component of the reform program. The unconditional assent and cooperation of the powers that be with these bodies will provide for the lifting of the veil of corruption that sheaths our Judiciary and will portray the Judiciary as taking redeeming steps to ascend back to its pedestal of impartiality.
This act of capitulating and subjection of our Judiciary to the probing of an external body – an undermining of our Sovereignty, is a necessary evil brought about by Corruption. One of the numerous descriptions of the Judiciary is that it is the last resort of the common man. In living up to this, the Judiciary must be primed to independently deliver justice when all else goes to naught. The question of ‘Who judges the Judges?’ can only be aptly answered when there is an independent check on the independence of the Judiciary.
Eniola Hephzibah Akinoso is a 500 Level student of the Faculty of Law, University of Lagos. She serves as the Chief Whip of the Senate of the Faculty of Law and is a current Fellow of the Barack Obama’s Young African Leadership Initiative (YALI) network. She has a deep-rooted interest in Commercial Law, Family Law, Real Property Law and ADR. She derives pleasure in outliving challenges.