FEATURE ARTICLE


Chief Gani Fawehinmi, LLD, SANWednesday, January 21, 2004
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Lagos, Nigeria

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Forwarded by:
Ogbeni LANRE BANJO
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PROBING CORRUPTION IN NIGERIA


n Nigeria, public political office is the surest passport to acquisition of wealth by all forms of corrupt means and abuse of power.

This illegal acquisition by those in control of the lives of our people, depletes the nation's treasury at the Federal, State and Local government levels. Consequently, the welfare of the people suffers either inadequate attention or conscious neglect. Therefore, probing corruption, finding out the culprits, punishing them and taking back the loots should form a fundamental base of our security and at all times constitute an issue of top most priority. Otherwise, the economy suffers irreversibly; societal social fabric crumbles. Political instability sets in with its attendant social disorder manifesting in all sorts of chaos and catastrophes, bizarre, beastly and unnatural things, dismantling family units, tearing apart communal ties, poisoning state cohesiveness and threatening national integration.

Therefore, probing Corruption is a very serious issue, which I will address in this column. Types of Probes

There are three types of probes recognized by the Constitution. They are:

  1. A Judicial Commission of Inquiry
  2. An Administrative Panel of Inquiry
  3. A Tribunal of Inquiry under the Tribunals of inquiry Act or a tribunal of inquiry law or any other law.

A probe is not a court of law or a Judicial Tribunal. I think this is obvious because nobody can be convicted by a judicial commission or administrative panel or a tribunal of Inquiry established by law except for contempt of its proceedings. There is no prosecutor because there is no prosecution. No one is formally accused, as it is not a criminal proceeding. In essence, a probe is a fact-finding inquiry.

Indictment by a Probe

If a public officer is accused of embezzlement of public fund, he cannot be convicted and sentenced to terms of imprisonment by a probe. That is the province of a court of law or a judicial tribunal set up by law for that purpose.

However, if a public officer is indicted of embezzlement or fraud and the findings of such probe are accepted by the Government then the officer stands disqualified from contesting elections into the following offices: President, Vice President, Governor, Deputy Governor, National Assembly (Senate and House of Representatives), State House of Assembly and indeed Local Government Chairman or Councilor.

Consequences of Indictment by a Probe

The following sections of the Constitution are relevant in this respect:

For President- Section 137 (1)(i)
For Governor - Section 182(1)(i)
For National Assembly (Senate and House of Reps)- Section 66(1)(h)
For House of Assembly - Section 107(1)(h)
For Local Government Chairman and Councilors - Section 7(4)

Section 137(1)(i) provides as follows:

"A person shall not be qualified for election to the office of President if -

'(i) he has been indicted for embezzlement or fraud by a Judicial Commission of Inquiry or an Administrative Panel of Inquiry or a Tribunal set up under the Tribunals of Inquiry Act, a Tribunals of Inquiry law or any other law by the Federal or State Government which indictment has been accepted by the Federal or State Government respectively:'

Similar provisions are contained in the other sections quoted above.

That is the importance the Constitution attaches to probes.

Furthermore, statute of limitation does not prevent the operation of the Constitutional provisions listed above.

Probe Panels are usually given terms of reference. They submit their reports including their findings to the appointing authority, which publishes the report with a white paper, in most cases accepting or rejecting the findings.

The Demerits of Probes

In view of the importance the Constitution attaches to probes, everything must be done to remove all the defects in the probes process in Nigeria. What are these defects. They are:

  1. The institution of a probe panel into a particular issue or controversy may be used merely to stave off public reaction momentarily and not with a view to unearthing the truth of a given situation.

  2. The appointing authority, either the Federal Government or the State, having received the report of a probe may choose to delay the release of same to the public for as long as it wishes.

  3. Acceptance or rejection of the findings of any probe is at the whims and caprices of those in power, influenced largely by the ambition of the Head of Government and a coterie of influence peddling associates, friends and relatives, and in a democracy, by party stalwarts or hangers-on.

  4. Depending on which law sets it up, the proceedings may be barred in any future civil or criminal proceedings by the enabling statute setting up such tribunal of inquiry.

  5. Where government or those who brought the government to power will be adversely affected by a particular report of a probe, the report may be said to be missing after it has been submitted to the government.

  6. Terms of reference of a particular probe panel may be too restrictive.

  7. The appointing authority may delay releasing the report of a probe for various reasons - personal, political, ethnic or other selfish considerations thereby making the people to lose interest in the subject matter of such a probe.

I will like to examine the defects .

  • Delay in Releasing Probe Reports
  • There are many probe reports that have gathered so much dusts and so many cobwebs that they cannot easily be discerned from afar in the shelves of Government. They include the following:

    1. Probe Panel on the activities of the Nigerian National Petroleum Corporation (NNPC) set up on December 12, 1993 under the Chairmanship of Major-General Emmanuel Abisoye (Rtd.) which submitted its report on July 19, 1994. (not published)

    2. Probe Panel on the Nigeria Airways Ltd. Set up on February 2, 1994 under the Chairmanship of Air-Vice Marshall Yisa Diko (Rtd.) which submitted its report on June 17, 1994. (not published)

    3. Panel of Inquiry to scrutinize the activities of the National Electric Power Authority (NEPA) set up on January 5, 1994 under the headship of Mr. Stephen Shekari which submitted its report on June 28, 1994; (not published)

    4. Probe Panel into the activities of the Nigerian Customs Service set up on February 17, 1994 under the headship of Major-General Paul Tarfa (Rtd.) which submitted its report on September 22, 1994; (not published)

    5. Probe Panel into the activities of the Nigerian Telecommunications Plc. (NITEL) set up on February 17, 1994 under the headship of Air-Vice Marshall S. A. Naiti (Rtd.) which submitted its report on August 26, 1994; (not published)

    6. Probe Panel into the activities of the Nigerian Ports Authority Plc inaugurated on April 25, 1994 under the headship of Alhaji Mahmud Waziri which submitted its report on August 25, 1994; (not published)

    7. Probe Panel into the activities of the Central Bank of Nigeria (CBN) set up on January 15, 1994 under the Chairmanship of Dr. Pius Okigbo which submitted its report on September 27, 1994; (not published)
    8. Probe Panel into the activities of the Nigerian Airports Authority (NAA) set up on February 23, 1994 under the headship of Major-General David Jemibewon (Rtd.) which submitted its report on July 25, 1994; (not published)

    9. Probe Panel into the activities of the Nigeria Police Force set up on March 3, 1994 under the Chairmanship of Alhaji M.D. Yusuf which has since submitted its report. (not published)

    10. Probe Panel into the activities of the Warri Refinery and Petro-Chemical company set up on December 12, 1994 under the headship of Late Mr. Aret Adams which submitted its report on February 1, 1995; (not published)

    11. Probe Panel into the activities of the Judiciary inaugurated on October 29, 1993 under the leadership of Hon. Justice Kayode Eso (Rtd.) which submitted its report on May 5, 1994. (delayed for 8 years before snippets of the report got to the press and staccato implementation of some of its findings by the Government was observed).

    12. Human Rights Violations Investigations Commission, headed by Honourable Justice Chukwudifu Akunne Oputa (Rtd). (not published)

    There are three other panels set up by President Obasanjo in the first 30 days of civil rule in Nigeria post May 29, 1999. We hear about them, but there have been no formal publications of their reports. They are:

    1. Panel on contracts, licences and appointments headed by Dr. Christopher Kolade.
    2. Panel on failed contracts (uncompleted projects, supplies and services) headed by Alhaji Iguda Inua.
    3. Panel on landed properties headed by Brigadier General Oluwole Rotimi (Rtd).

  • Missing Reports
  • Some probe panel reports could said to be missing where the government is not too comfortable with the outcome of the probe panel. For example, the Dr. Pius Okigbo led probe panel on the Central Bank of Nigeria (CBN).

    Okigbo was not an ordinary man, he was one of the best Nigerian Economists, a financial wizard, a world renowned intellectual, a brilliant mind and an honest family man.

    In 1994, he was asked to head a probe on the activities of the Central Bank of Nigeria (CBN) with the following terms of reference:

    1. To examine the legal framework guiding the operations of Central Bank with particular reference to the relationship of the bank with the Federal Government.

    2. Re-appraise the structures for the co-ordination and harmonisation of fiscal and monetary policies for the purpose of achieving the objective of macro-economic policy;

    3. Review the process of formulation and implementation of monetary policy with specific reference to the control of money supply, interest rates management and attainment of price stability.

    4. Re-examine the design and implementation of external sector policies with particular regard to the operations of the foreign exchange market, exchange rate management, external reserve management, external debt management and the dedication account operated by the Central Bank.

    5. Review the growth and management of domestic debt, especially the granting of ways and means of advances of the Federal Government and Central Bank credit to the government generally.

    6. Access the adequacy or otherwise of the regulatory framework for the financial system, with specific reference to the establishment of financial institutions, prudential requirements and the bank's ability to deal with financial insolvency.

    7. Identify the various factors, which constrain the effective conduct of monetary and banking policies and propose appropriate remedies.

    8. Undertake a comprehensive review of the administrative, managerial and structural requirements for the improved performance and autonomy of the Central Bank.

    The members of Okigbo Panel were:

    1. Dr. Pius Okigbo
    2. Mr Pascal Dozie
    3. Dr. Yakubu Sankey
    4. Mrs. Bola Latinwo
    5. Dr. Obong Ufot Ekaette
    6. Chief Dotun Oyefodunrin
    7. Dr. Umar Muttalab

    Nine years ago, precisely on the 27th of September 1994, he submitted his report. I understand it was a very scathing report indicting some prominent citizens of this country of corruption. The report has not been published. Worst still, the newspapers have published statements by some public officials that the report is missing. Happily, one of the members of that panel was Ufot Ekaette, Secretary to the Federal Government of Nigeria, the custodian of the Federal Government documents. Let us ask him, where is the report of Okigbo Panel in which he served?

    What about Okigbo's wife? I understand she is still alive and according to The Punch newspaper report of Tuesday December 2, 2003, President Olusegun Obasanjo claimed that he has written to her requesting for a copy of her husband's probe panel report. But surprisingly, in another Punch newspaper report of Tuesday, December 16, 2003, Okigbo's wife denied being contacted by the President or the Federal Government.

  • Staving off Public Reactions
  • So many abuses of Human Rights were committed during the Military regimes from 1966 - May 1999.

    The Oputa Panel was set up to look into the abuses of Human Rights from (January 15, 1966 - May 28, 1999)

    The period covered by the terms of reference of Oputa involved the regimes of General Aguiyi Ironsi, General Yakubu Gowon, General Murtala Muhammed, General Olusegun Obasanjo, Alhaji Shehu Shagari, General Muhammadu Buhari, General Ibrahim Babangida, General Sanni Abacha and General Abdusallam Abubakar.

    Thousands of Memoranda were submitted to Oputa panel. For 3 years, the Oputa panel moved round the country, gathered materials, sat in public places, and even sat in Hotels to accommodate some ex-military big berrets.

    The reports were submitted in May 2002. Four years after the institution of the panel, tempers appeared to have substantially cooled down. The reports of Oputa panel have firmly been frozen in the Federal Government deep freezer.

  • Barring the Use of Probes Proceedings in the Court
  • Under section 8 of the Tribunals of Inquiries Act, it is provided that:

    "Evidence taken under this Act shall be inadmissible against any person in any civil or criminal proceedings whatever, except in the case of a person charged with giving false evidence before the members."

    Similar provisions are contained in the tribunals or commissions of Inquiries Laws of the various States in Nigeria. For example, section 8 Tribunals of Inquiries Law of Lagos State (No. 2) 1992 Cap. T6 Laws of Lagos State 2003, and section 11 Tribunals of Inquiries Law of Cross Rivers State (No.11) 1978 Cap. 27 Laws of Cross Rivers State etc etc.

    The implication is that, the proceedings of a probe panel can neither be used to make a claim against anybody in a civil matter nor can the proceedings be used solely in a criminal charge against anybody in a criminal matter.

    However, the Supreme Court had held in a number of cases that evidence relevant to a case could be obtained from anywhere. It suffices to cite two cases on this point of law. They are Torti v. Ukpabi (1984) 1 SCNLR 214 and Sadau v. State (1968) 1 All NLR 124.

    In Torti v. Ukpabi (supra) at 228 para. A, Obaseki, J.S.C. stated that:

    "There is no general rule of law in civil as well as in criminal cases that evidence which is relevant is excluded merely by the way in which it has been obtained."

    Also at page 239 para. H, Aniagolu, J.S.C. stated:

    "Again as was held in Kuruma v. The Queen (1955) A.C. 197, the test to be applied both in civil and in criminal cases, in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how it was obtained."

    In Sadau v. State supra at 129 paras. 33 - 37, Coker, J.S.C. stated:

    "� the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained."

    It must be noted that Evidence is item 23 on the Exclusive legislative list Second Schedule Part I of the 1999 Constitution and Nigeria operates an Evidence Act. These judgments flow from the interpretation of the Evidence Act Cap. 112, Laws of the Federation of Nigeria (LFN) 1990.

  • Restrictive Probe
  • The Abacha Loot

    The Abacha loot must have been discovered through a painstaking security search-light. There was no tribunal of Inquiry set up by Government for this purpose, as there was no general probe of that regime by the present Obasanjo administration.

    From all indications and observations, it appeared that, a security search light which resulted in discovering billions of Abacha loot abroad was only beamed on Abacha alone and not on other former Heads of State living or dead, for reasons best known to Obasanjo regime.

    There should be a probe of all the previous regimes including the Obasanjo regime of 1976 - 1979, if the searchlight on Abacha is to have any meaningful connection to fighting corruption and abuse of power in Nigeria.

    Historical Evolution of Probes in Nigeria

    Several years ago, shortly after amalgamation in 1914, the colonialists started the use of probe for investigating certain matters. However, 63 years ago, they promulgated the Commissions of Inquiry Ordinance No.1 of 1940 which came into effect on the 22nd day of February 1940. Probes gained national political prominence when the colonialists instituted the Foster-Sutton Commission of Inquiry in 1956, before independence, into the affairs of the African Continental Bank (ACB) owned by the government of Eastern Region.

    Members and supporters of the National Council of Nigerian Citizens (NCNC) which was in control of that government decried the Foster-Sutton Tribunal of Inquiry of 1956 as one set up to tarnish the image of the party and its leadership.

    Post Independence, members and supporters of the Action Group (AG) cried foul against the Coker commission of Inquiry set up in 1962 by the Federal Government of Nigeria under the Commissions and Tribunal of Inquiries Act (No. 26) 1961 to look into the affairs of some parastatals in the Western Region. They considered the Inquiry to be a witch-hunt against their party and its leadership in view of the political crisis in the Western Region at that time. Various Military regimes, particularly the early ones promulgated decrees at the Federal level and Edicts at the states level to give effect to the findings of various probes instituted by them confiscating the properties of those who were found to have corruptly enriched themselves.

    However, there was a landmark challenge in such confiscation in the case of E.O. Lakanmi & Anor. v. Attorney General (West) & Ors. (1971) University of Ife Law Reports 201, where the Supreme Court ,led by Sir Adetokunbo Ademola, declared the Decrees and Edicts confiscating such property void. The military reacted in a terse Decree No. 28 of 1970, prepared by the Ministry of Justice under the leadership of the Attorney-General at that time, Dr. Taslim Olawale Elias, by implication declaring the judgment of the Supreme Court void.

    The immediate casualty of this legal quagmire was the use of probes to fight corruption. Nevertheless, probes continued to be a mechanism for dealing with corruption.

    The Way-out

    Immediate Release of Probe Report Without
    Reference to the Government

    The way-out is not to subject the findings of any probe to the acceptance or rejection of anybody. That is, once the report is ready, it must be released to the public by the Probe Panel immediately.

    Criminal Investigation Based on the Report and Prosecution by the Attorney General

    Secondly, the Attorney-General (AG) at the centre, where it concerns the Federal Government, and in the States, where it concerns the State Government should act on the report where crime have been committed. The report should be given to the Inspector-General of Police at the Centre and to the State Commissioner of Police in the state concerned. The Police should conduct comprehensive criminal investigation based on the report. The Police should use the comprehensive criminal investigation arising from the report to charge any culprit through the office of the Attorney General of the Federation under section 174 of the Constitution and if the matter relates to a State, the Commissioner of Police in that State should conduct a comprehensive criminal investigation on the matter which will enable the Attorney General in that State, armed with section 211 of the Constitution, to initiate criminal prosecution against any person or persons involved in the embezzlement of public funds.

    The Inspector General of Police and the Attorney-General of the Federation are to ensure that such matters, where there are infraction of the criminal law of the country, are taken to court without delay whilst the Commissioner of Police and the Attorney-General of the states are to ensure that such matters are taken to the appropriate courts in the states where the offences arising from the reports and the criminal investigation emanate from that state.

    The practice of allowing the President of the Federal Republic of Nigeria or the Governor of a State as the case may be, to decide:

    1. Whether or when to release the report of a probe

    2. Which finding to accept or reject should immediately be discontinued as such practice is capable of promoting corruption and aiding abuse of power which is frowned against in Section 15(5) of the Constitution.

    Enactment of appropriate law to accommodate suggested remedies

    The National Assembly acting within its powers under the Exclusive Legislative List, Second Schedule, Part I of the Constitution should enact the appropriate legislation to put this suggestion in place and the State Assemblies acting within their power under the Concurrent and Residual Powers under the Constitution should also do the same.

    Retention of disqualification provisions in the Constitution

    We should retain the disqualification provisions in the Constitution for elective offices concerning those indicted by probes. That is, sections 137(1)(i), in respect of the President; 182 (1)(i) in respect of Governor; 66 (1)(h) in respect of National Assembly; 107(1)(h) in respect of House of Assembly of a State and section 7(4) in respect of Local Government Councils.

    Nigerians have been deceived for too long by various governments using probes to raise false hopes of the people, to protect criminals in political garbs and to allow the plundering and looting of the people's resources without remedy. The bigoted tomfoolery and smokescreen blundering charade has to stop now before the avalanche of corruption buries our stability.

    Use and Misuse of Probe Findings

    All the properties of the Public Officers confiscated as a result of various probes conducted during Obasanjo's Military regime (1976-1979) were covered by:

    1. Legal Notice No. 13 of 1977 - Public Officers (Forfeiture of Assets) Order 1977
    2. Legal Notice No. 33 of 1978 - Public Officers (Forfeiture of Assets) Order 1978.
    3. Legal Notice No. 7 of 1979 - Public Officers (Forfeiture of Assets) (Miscellaneous Provisions) Order 1979.

    Some of these properties were later returned to some of the public officers concerned by the General Babangida Military Government under the following laws:

    1. Forfeiture of Assets (Release of certain forfeited properties etc) Decree No. 39 of 1992.
    2. Forfeiture of Assets (Release of certain forfeited properties etc) Decree No.70 of 1992.
    3. Forfeiture of Assets (Release of certain forfeited properties etc) Decree No.24 of 1993.
    4. Forfeiture of Assets (Release of certain forfeited properties etc) Decree No.54 of 1993.

    Under the military regime of General Sanni Abacha, certain other confiscated properties of some public officers were also released. This was done pursuant to the Forfeiture of Assets (Release of certain forfeited properties etc) Decree No.118 of 1993.

    Whatever approach we may adopt in fighting corruption and abuse of power, we will never succeed as long as we allow the status, influence, connection, ethnicity including 'bigmanism' and other anti progressive considerations to colour or prejudice our decision in proceedings against particular public officer or officers in the application of the law to any given situation.

    Safe Custody of Probe Proceedings and Reports To obviate or prevent any fraudulent or mishandling of proceedings of a probe audits report, I will like to propose that, five copies of a proceedings of every probe and its reports in bound volumes together with the C-D Rom or latest preservation technology which should be kept in the following places:

    1. Central Bank of Nigeria
    2. National Achieves
    3. National Museum
    4. Supreme Court
    5. National Assembly (and in respect of States appointed probes - State Assemblies)
    6. National Library
    7. Office of the Head of State (and in the case of the States appointed probes - office of the Governor)

    To be Continued