How Buhari can fight corruption 0

IN Nigeria of the Buhari era, fighting corrup­tion and its methodologies have become the mother of all public debates. The renewed and heightened interest corruption has generated has somewhat diminished the importance of other hot-button national topics, such as fighting ter­rorism, adjusting to the free and ominous fall in oil prices, and national unity.

Yet, the way the debate is going, the President may, despite his good intentions, lose the requi­site focus and despatch; and ultimately succeed only on the platitudes and prescriptions but not the cure. Such signs are already there, judging by the President’s recent public appeal to law­yers to, in essence, reject corruption briefs. On the other extreme, the Sultan weighed-in by tell­ing spouses to reject gift from their husbands if they suspect it to be from fruits of corruption. Both positions, as nice as they sound, suggest some national frustration and a creeping lack of a strong and clear handle on the task at hand.

But, the most worrisome is the suggestion from some quarters that Nigeria now needs spe­cial courts to succeed in fighting corruption. All of these declarations, as well-intentioned as they are, sadly make fighting corruption look like some rocket science, requiring the best of inge­nious efforts to succeed. It is my humble submis­sion that, instead of a rocket science, fighting corruption is actually a basic science, comprised of basic laws, basic vision, basic guts, and basic everything else we already have in place. Below are my reasons:

Contrary to the President’s thesis, lawyers are strictly bound by their professional calling to accept any case that tickles their professional fancy. In other words, a lawyer will not reject a brief just because society considers the offense alleged as heinous. Instead, it is the enormity of the crime, especially in terms of its monetary impacts, that is often the best selling point to at­tract the best of lawyers. Amongst these are cor­ruption cases which are especially considered lucra­tive briefs because of the high personas and the sheer quantum of the legal fees involved. Add the constitu­tional presumption of innocence and guarantee of fair hearing, then you can see the reason the President’s admonition won’t fly, despite the bully-pulpit, great intentions, warts and all.

Thus, lawyers are not to be expected to reject cor­ruption cases, even when patently egregious. So, in­stead of the appearance of suborning a universal re­jection of cases, what President Buhari requires is a gathering of equally skilled (and yes – patriotic and idealogically-compliant) lawyers to prosecute corrup­tion cases. When you have such lawyers, they will ensure that any corruption case that goes to court will be backed by material, relevant and admissible evidence that will have the best chance of clinching a conviction. I say this because almost all the corruption cases lost by EFCC since 1999 stemmed from a sys­tematic lack of sufficient and damning evidence, if at all they made it to trial. Most were dismissed for fail­ure to prosecute, an euphemism for cases that lacked the basic evidence to even sustain them on the court’s criminal calendar. The few that remained in the courts are stacked on the back shelfs, gathering dust and con­stituting a national embarrassment.

You don’t need special courts to try corruption cas­es. James Ibori was not convicted by a special court but by some regular British court. Plus, you can’t get a special court without an Act of the National Assem­bly – a process likely to become dicey or gridlocked if the alpha males of the National Assembly suspect that they might be caught in the web of the procedural laxity such law is intended to create. Further, if the ultimate intention is to water-down the standard of proof in such courts, then a constitutional amendment becomes a must, all with its many complications, dif­ficulties and profound political risks to the President.

Recall that it’s the Constitution, rather than any subsidiary law, that conditioned criminal conviction on proof of guilt beyond reasonable doubt – a rigid requirement that goes to the basic tenets of Nigeria’s adherence to the common law and constitutionalism. The possible exception lies in amending the laws to convert corruption to a civil wrong. In such event, proving an act of corruption will thenceforth be by a preponderance of the evidence but which, instead of imprisonment, results only in civil for­feiture of the fruits of the corrupt act.

Given that special courts may be a tall order in the interim, some special ordinary rules will do, because, as opposed to laws/acts, head judges are empowered to promulgate such rules. I’m not talking of rules of evidence or rules of criminal procedure, which even though adjectival, still require federal legislative action. I am talking of ordinary rules of court, especially those ‘calen­daring’ rules judges are inherently empowered to make; or even the garden-variety rules of engage­ment which can be enforced piecemeal to move cases forward and frustrate dilatory/unprofes­sional tactics. I say this because dilatory tactics or lawyer-contrived delays contribute signifi­cantly to frustrating prosecutorial efficacy in the courts. This is where I agree with the President that Nigeria needs tough and upright judges to help with the anti-corruption agenda. To be sure, there’s a wide window here because, under the Constitution, the President can appoint as many High and Appeal Court judges as he likes; and nothing stops him from picking judges he consid­ers ideologically committed to the anti-corrup­tion agenda. If Buhari takes this part, his anticor­ruption body-language may then begin to stick where it’s needed the most – the judiciary.

We don’t have to wait for corruption to occur before fighting it. It’s this sort of time-worn at­titude that turns our entire attention to the courts and, to some extent, the EFCC alone. In the same vein, body-language – even though presidential, is minimally effectual in fighting corruption.

Corruption requires derring-do, and the folks who succeed at it are known to possess a helluva of derring-do, and are thus naturally undeterred by body-language, especially coming from a Bu­hari now bound (or caged?) to act within the lim­its of the Constitution. Times have changed.