CORRUPTION:NIGERIA’S ONGOING WAR

Impact of Anticorruption Initiatives on the Economy’

 

ARTICLE TITLE: NIGERIA’S ONGOING WAR ON CORRPUTION, THE MODUS OPERANDI OF THE SAID WAR ON CORRUPTION VIS-à-VIS THE PROVISIONS OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999, AS AMENDED AND IMPACTS ON THE RIGHTS OF INDIVIDUALS AND LIBERTIES UNDER NIGERIA’S EXISTING LEGAL REGIME AND INTERNATIONAL LAW.

BY

1. SYLVANUS ABILA , PROF.PROSPER AYAWEI

ABSTRACT

This paper undertakes a critical review of the ongoing war on corruption being undertaken by Nigeria’s Current President: Mohammadu Buhari, the modus operandi of the said war on corruption vis-à-vis the provisions of the Constitution of the Federal Republic of Nigeria, 1999(CFRN), as amended and impacts on the rights and liberties of individuals under Nigeria’s existing domestic legal regime and international law.

The Paper begins with an appraisal of (i). What Corruption is, (ii). Current efforts at dealing with the scourge of corruption under President Mohammadu Buhari regime, (iii). President Buhari’s war against corruption vs. Personal rights and liberties of Nigerians under the CFRN, as amended, other existing domestic statutory provisions and international law. This is followed by a conclusion. We shall now begin with an examination of the term corruption.

1. WHAT IS CORRUPTION?

There is no generally accepted definition of corruption as several definitions have been offered by various authorities. Essentially however, corruption encompasses references to illegal acts which are related to power or offices, official institutions, civil services and other political spheres, or in relation to personal and monetary gain that is involved for the corruptor. According to Brasz, 1 corruption is a perversion of power. To Deflam Mathieus2 “corruption is a colonization of social relations in

 

which two or more actors undertake an exchange relation by way of a successful transfer of a steering – media, money or power, thereby side-stepping the legally prescribed procedure to regulate the relation.” In the words of Enweremadu, corruption is:

The abuse of public office for private gain. This includes situations where “public official accept, solicit, or extort bribes; and where private actors offer bribes to subvert or circumvent public policies for competitive advantage and profit. Corruption can however occur in the absence of bribes. For example, the World Bank considers patronage or nepotism by government official, theft of state assets, or the illegal diversion of state revenues as corruption 3

An exhaustive research on the word Corruption is obtainable from <https://en.wikipedia.org/wiki/Corruption#cite_ref-1>(accessed 27 March, 2016) where a cocktail of definitions are assembled.  Corruption is seen as  “a form of dishonest or unethical conduct by a person entrusted with a position of authority, often to acquire personal benefit4 and may include many activities including bribery and embezzlement, though it may also involve practices that are legal in many countries.5 Ancilliarily, “Government, or 'political', corruption occurs when an office-holder or other governmental employee acts in an official capacity for personal gain”.

The said authors have traced the root word “corrupt” when used as an adjective to mean "utterly broken".6 The word was said to have been first used by Aristotle and later by Cicero who added the terms bribe and abandonment of good habits.7 Stephen D. Morris,8 a Professor of politics, have also said that “political corruption” to mean the illegitimate use of public power to benefit a private interest”. The Economist Ian Senior,9 however, “corruption consists of :

 

(a) secretly providing (b) a good or a service to a third party (c) so that he or she can influence certain actions which (d) benefit the corrupt, a third party, or both (e) in which the corrupt agent has authority” Daniel Kaufmann,10 of the World Bank has however extended the concept to include, what he calls 'legal corruption' in which case, power is abused within the confines of the law — as those with power often have the ability to make laws for their protection. A further examination of https://en.wikipedia.org/wiki/Corruption#cite_ref-1 shows that there are different scales and types of corruption which range from systematic corruption, petty corruption, grand corruption11.

Findings by <https://en.wikipedia.org/wiki/Corruption#cite_ref-1>(accessed 27th March, 2016) also indicate factors which encourage systemic corruption to include “conflicting incentives, discretionary powers; monopolistic powers; lack of transparency; low pay; and a culture of impunity.12 Specific acts of corruption include "bribery, extortion, and embezzlement" in a system where "corruption becomes the rule rather than the exception."13 Other Scholars have distinguished between centralized and decentralized systemic corruption, depending on which level of state or government corruption takes place; in countries such as the Post-Soviet states both types occur.14 Some scholars argue that there is a negative duty of western governments to protect against systematic corruption of underdeveloped governments”.15&16

Corruption in different sectors, identified by scholars17 include: Government/public Sector,17 political corruption,18&19 police corruption, judicial corruption,20&21

 

corruption in educational system/universities,22-46 corruption within labour unions.47

Similarly, methods/aims48 of corruption identified by the afore mentioned site identifies bribery49 extortion and blackmail, abuse of discretion, favoritism, nepotism and clientelism.

For a deep further study on the subject: corruption, the author refers interested readers to <https://en.wikipedia.org/wiki/Corruption#cite_ref-1>(accessed 27th March, 2016).

Existing research findings on the increased incidences of corruption, in Nigeria, have established, amongst other things, that there is a correlation between increased oil revenues, authoritarian rule, economic decay and political instability.

The advent of oil money in Nigeria, corruption and the impact on the development of nations of the world generally and Nigeria, in particular have long been a subject of concern to researchers and developmental institutions. Quite a number of studies have shown that increase in oil revenues encourage corruption, authoritarian rule, economic decay and political instability.50 More recent works, including notably the one by Schubert51 and Smith,52 have focused on how oil wealth induce corruption and compromise good governance.53 For example, it has since been established that there is a direct linkage between corruption in the Niger Delta region and the incidences of  militancy among youths in the said Region at the peak of the crises at the time. 

 

 

 

In the words of Former Governor DSP Alamieyeseigha of Bayelsa State, for example:

From our observation, most of the people entrusted with the responsibility of administering the new local government areas lacked basic leadership qualities. They were found wanting in probity, transparency, mature judgment and sense of direction. I have learnt to my utmost dismay that some of the former chairmen exhibited financial indiscipline through over-inflation of contract values, frivolous spending and gross mismanagement, among other sharp practices. Some chairmen used their station in the local government councils as conduit-pipes to siphon scare resources.54 

The negative impact of corruption on societal governance is that, almost always fonds accruable or budgeted for the delivery of social services are diverted to the personal aggrandizement of persons in authority55 and in effect deprive the populace of their entitlements in term of social services. The immediate consequence of this development is that, society experiences state failure arising from the inability of state government to provide necessary social services provided under law. And almost in all cases, state failure is known to incite crises and tensions in society. An editorial commentary of the Guardian Newspapers56 put the scourge of corruption in Nigeria, at a time, in the following telling commentary:  

The bribery and corruption going on in Nigeria has reached such grave proportion that continued pussyfooting on this subject will ultimately damage the country irretrievably. …The United Nations has estimated that between 1960 and 1999, Nigeria lost $400 billion stashed in foreign bank accounts by corrupt Nigerians. Amnesty International has consistently ranked Nigeria as one of the most corrupt countries in the world. Against the logic of our resource endowment and developmental potential, Nigeria has remained one of the most underdeveloped countries in the world with three quarters of our population currently scraping a miserable living on less than a dollar a day. As a result of repeated policy failures, Nigerians have no access to electricity or water and now cannot afford to eat well. We have become a nation where nothing works because the few that have access to our national patrimony have commandeered our collective wealth and left the rest of us stranded and traumatized…… Nigeria ranks low in almost every human developmental index, but we excel in corruption.

 

 

 

 

Concluding the above commentary, the said paper warned as follows:

‘The President must be told that the greatest impediment to our country’s development is corruption and unless and until this systemic cancer is exorcised from our society, our people will continue to wallow in poverty and misery in the midst of plenty.’57

1. CURRENT EFFORTS AT DEALING WITH THE SCOURGE OF CORRUPTION UNDER PRESIDENT MOHAMMADU BUHARI REGIME

Nigeria’s current President, Mohammadu Buhari rode to power with his All Progressives Congress Party (APC) in the year 2015 after the general elections which led to the ousting of the President Goodluck Jonathan – led Federal Government. The president and his party, the APC, promised to vigorously deal with the issues of corruption in governance, insecurity, occasioned by the onslaught of the Boko-Haram Islamic Sect on the North-Eastern region of Nigeria which has led to massive destruction of Life and property.58 and the dwindling economic fortunes of the Nigerian Nation. Since assuming power as President of the Federal Republic of Nigeria, evidence abound that a relentless war on corruption is going on in Nigeria. Hardly does a day passes without one report or the other in the national media, in Nigeria, chronicling the arrest of one former important government official or the other on charges of corruption and or stealing of public funds by the hitherto comatose anti-graft agencies (i.e the Economic and Financial Crime Commission, EFCC and other similar agencies) in Nigeria. However, in what looks like a media trial of some sort, the Nigerian Press, has, to say the least, dramatized the arrests, detention, attempts at taking accused persons on bail, the serial failures of the accused persons to get bail, the rising tendencies on the part if the Government in power to ensure that persons arrested for corruption charges hardly or do not get bail. Random references to the issues making headlines in the Nigerian Daily in the last nine months or so bears the above view out and present before the reader the magnitude or volumes of money purportedly or allegedly stolen and reports of denials as reported by the newspapers. In a banner headline of The Nation Newspapers: of December 17, 2015,59 for example, is the caption ‘N31b, loot: EFCC goes after Dasuki’s Yuguda’s assets’. ‘I gave N600m to George, Odito, Bafawara, Nwobodo, others, Ex-Ministers Yuguda’60.

 

Other interesting reports in the Nigerian Media on Corruption worthy of note include, that of Daily Sun, ‘shocking revelation in nimasa fraud case. I got n905m for doing nothing-witness prosecution’61, ‘Dasuki: I was acting on Jonathan’s Instructions’. *N10b PDP ‘Cash given to former President’s ADC, aide’ * ‘I’ve no foreign accounts, company’ *N10b came from oil block accounts’62, N31B Fraud. Anenih, George, Odili, others may refund N630m slush fund * Former, Serving PDP House of Representatives members too, * How ex-president Jonathan gave Dasuki, Yuguda directives63. Others include, the report of SUNDAY SUN with the headline ‘$2.1BN SCANDAL, Ex-Service Chief’s Trial Good For Military- Former Army Chief.’64, the report of the THIS DAY newspapers with the headline ‘Buhari Gives Marching Order to EFCC, Security Agencies to Arrest Ex-Customs Boss’ (and) ‘ICC considers Petition Against Dasuki, Okonjo-Iweala, Others *Again, Prosecution’s failure to produce ex-NSA stalls his trial’, ‘N620m Bribery Allegation: Court Begins Trial of Farouk Lawan’.65 ‘Dasuki, others will abscond if granted bail- EFCC’, ‘Anti-graft war, PDP’s day of reckoning says APC’ 66. Familiar related headlines in the newspapers within the period covered by this paper also include the following ‘We’ll soon name ex-govt officials who returned loot- Buhari * Says no Friends, no foe in fight against corruption * President will step on big toes- Garba Shehu’, ‘This Day Publisher Obaigbena writes EFCC, explain N670m collected from ex-NSA’s office’ * Our story, by The Nation”, ‘Dasuki’s Ex-Account Officer Implicates Sambo’s Office, Says ex-VP’s Office got N20m Monthly’, ‘Yuguda, Bafarawa, Others to account for N18.9bn cash got for Operation Capture north-West for PDP’,  ‘Ex-minister got another $9.8m within two months’67. The bold headline on Saturday Vanguard is ‘Corruption: Buhari will soon face Obasanjo- Useni and Court goes tough on Tompolo * others seizure of his muti-billion naira property’68. And in THE GUARDIAN,69 is the headline ‘Dasuki Challenges FG for putting him on Trial’. And in THE DAILY TRUST70 are the following notable headlines ‘Obasanjo writes Saraki, Dogara, says N/Assembly is corrupt’, ‘Arms Deal: I’ll talk at the right time-Jonathan’. While the screaming headline of THE GUARDIAN is as follows, ‘Civil Servant panic over order to declare assets, * BVN exposes links loots, *EFCC, ICPC, CCB move against corrupt workers’71.

Giving the importance of the ongoing hype of the fight against corruption in Nigeria, it is also necessary, perhaps, to consider few more media reports in Nigeria. In The Daily Sun72, were the following headlines: ‘Diezani’s husband, Admiral Alison Madueke, Quizzed *Witness Exposes Ex-minister’s role in choice of oil firms’ and ‘EFCC re-arraigns Dokpesi over N2.1bn fraud. Bail intact’. Daily Sun73 ‘Federal Government Uncovers 23,306 ghost workers on payroll * To probe civil servants, banks over multiple salary scam’. While The Guardian74 reported President Buhari as saying that ‘Judiciary my main headache in anti-graft drive’, * ‘EFCC to arraign Bashir Adebayan from today, * Government reviews contracts with Chinese Firms” and the details of “How Allison-Madueke granted N4.8tr oil swap without contract, *NNPC ex-chief names Duke Oil. Trafigura in deal’75. In the Daily Sun76, were the following headlines: ‘I’ll handcuff more people, *Magu, EFCC chair, blows hot, * we’re investigating all allegations against Lamore’, ‘We’re all corrupt, *Ex-Gov. Bafarawa’s bombshell Says 90% Nigerians involved’77. Other very revealing stories include the ones captured in The Guardian78 ‘EFCC sends Interpol after fleeing suspects, * more than 40 person seized in two months, * Commission, auditor to co-operate, fault Asian countries’ stance’. ‘EFCC probes Okonjo-Iweala, Allison-Madueke, Oil Sector, * Court rules against Dasuki’s discharge, grant him N250m bail, * Badeh visits anti-graft agency, uncertainty over detention.’79. ‘Obasanjo, Jonathan under probe over Abuja master plan, *Senate may sanction El-Rufai, Aliero, Modibo for illegal plots’ allocaton’80. etc.

It is important at this point to highlight the state of the present war against corruption in Nigeria by quoting in extenso the report contained in The Guardain on Friday, February, 2006, pp 1 and 6 where it summarized the ongoing war against corruption in Nigeria as follows:

if the current drive of the Economic and Financial Crimes Commission (EFCC) to recover looted funds, both from the arms deal and other sources, is maintained, the commission may be on its way to  retrieving N1.5 trillion which will help to revive the economy………

 

 

 

 

The total of the amounts in most of the corruption cases being investigated and those already in court is N1.5 trillion. And as confirmed by the Acting Chairman of the EFCC, Ibrahim Magu recently in Abuja, the commission has already recovered billions. “We have many corruption cases in court. We are getting them every day from everywhere and we are recovering stolen money and taking corrupt people to court. The money we have recovered and the money we are going to get back from them billions and billions of naira-is being paid back to government and will be used to do what it was originally meant for-build roads and railways, create employment and defend our country”, Magu had said.

The arm procurement scam involving former National Security Adviser, Sambo Dasuki is to the tune of $2.1 billion and another N643 billion. Out of this amount, prominent Nigerians including former Minister of Defence, Haliru Mohammadu and his son, former Minister of State for Finance, Bashir Yuguda, former governor of Sokoto State, Attahiru Bafarawa and son, are alleged to have shared from this amount.

Others alleged to have shared from the arms deal under Dasuki include some elder statesmen such as Chief Tony Amenih.

Another tranche of the arms deal being investigated and which involves the Nigerian Air Force (NAF) and former and serving service chiefs is worth $2billion and another N29 billion.

For this investigation, former service chiefs, Alex Badeh, Adeshola Amosu and others are being detained by the EFCC.

The Army last week, also forwarded names of about 15 officers to the EFCC on the matter, stating that if found culpable they would be court-martialed.

Other money allegedly stolen by individuals includes about N37 billion involving former Nigerian Maritime and Safety Agency (NIMASA) boss, Patrick Akpobolokemi who has five cases in court being prosecuted by the EFCC. One of the cases involve N34 billion Maritime University land scam in which he was linked to former Niger Delta militant, Government Ekpemupolo also known as Tompolo. Another case against Akpobolokemi involves N2.6 billion aside from three other cases involving different amounts of money.

The newest in the cases being prosecuted is the one involving former Minister of interior, Abba Moro and five others worth about N676 million allegedly got from applicant in the failed immigration recruitment scam of March 2013. This money if recovered may have to go back to the applicants.

It is not yet clear how much may come from the planned probe of the pretroleum industry, as the EFCC is currently investigating former Ministers of Finance, Ngozi Okonjo-Iweala and former minister of Petroleum Resources, Diezani Alison-Madueke.

The commission interrogated Alison-Madueke’s husband some days back. The commission is yet to invite Okonjo-Iweala and Alison-Madueke though about $2.1 billion and another N643 billion, NAF: $2 billion and another N29 billion; Abba Moro and other N676 million; Akpobolokemi, Tompolo: N34 billion; Akpobolokemi: 2.6 billion. The summation of these funds amounts to 1.5 trillion, using N200 as exchange rate for the dollar components.

This N1.5 trillion would be a fraction of the amount to be recovered by the EFCC because several other corruption cases inherited by the Muhammadu Buhari administration are still on-going in courts. They include cases involving former governors. Those still being investigated and prosecuted in this category include the chairman of the People Democartic Party (PDP), Ali Modu Sheriff a former governor of Imo State, Ikedi Ohakim and others. So far in the arm procurement case, about 40 persons have been arrested by the EFCC, starting with Col. Sambo Dasuki himself.

Since the EFCC seized Sambo Dasuki, scores of other from politicians to military personnel, to persons in the oil and petroleum industry as well as the media have also been arrested and quizzed. They include former Air MAshal Alex Badeh, Air Mashal Adeshola Amosu, Ex- Chief of Air Staff, Air Marshal M.D Umar; Col. N. Ashiinze and AVM A. M. Mamu. Others are AVM O.T Oguntoyinto. AVM R.A Ojuawo; AVM J.B, Adigun; and AVM JA Kayode-Baeckley; AVM T Omenyi, Air Cdre A.O Ogunjobi; Air Cdre GMD Gwani; Air Cdre AY Lassa.

At the Nigeria Air Force (NAF), another $2 billion and N29 billion fraud was allegedly discovered in contract award spending.

The alleged fraudulent contracts include how to contracts to the tune of $930,500,690.00 were awarded, payment of 4,402,687,569.41 for unexecuted contracts, procurement of two used Mi24V helicopters instead of the recommended Mi-35M series at $136,944,00.00, four used Alpha-Jets for the NAF at US$7,180,000.00 funded by ONSA, cannibalization of engine from NAF fleet to justify procurement of jets, excessive pricing of 36D6 Low Level Air Defence Radar at $33 million instead of $6 million per one and delivery of radars without vital component of Identification Friend or Foe (IFF) that distinguishes between own and adversary air-craft. Other areas being investigated by the EFC are the transfer of $2 million to Mono Marine Corporation Nigeria Limited owned by some Air Force Officers, N15 billion allegedly lavished on the maintenance of its Alpha-Jets, C-130Haircraft and Mi-24V/35P helicopters, N2.5billion contracts awarded to Syrius Technologies, a Ukrainian company not registered in Nigeria, award of seven contracts worth N599, 118,000.00 contracts to Defence Industry Corporation of Nigeria (DICON) but two delivered. Many of those arrested and being are still in detention; some for more than three weeks.

Others arrested and quizzed got some share of the arms money from the office of the former NSA. They are mainly politicians and media personalities. They include former Minister of State for Finance, Bashir Yuguda, Former Governor of Sokoto State, Attahiru Bafarawa and his son, former Minister of Defence, Haliru Bello Muhammed and his son, spokesman of the Peoples’ Democratic party (PDP), Olisa Metuh among others”.

REACTIONS FROM NIGERIANS ON THE MODUS OPERANDI OF THE ON-GOING WAR AGIANST CORRUPTION IN NIGERIA

There have been different reactions from different segments of the Nigerian society towards the on-going fight against corruption in Nigeria. While there appears to be a consensus of the need to fight corruption headlong, several persons still believe that the war is political and targeted at a given segment of the society i.e political office holders under the immediate past Federal Administration and members of the former ruling party, the PDP only. There are others who hold the opinion that the entire war is a propaganda, a media trial, a rudderless and unconstitutional/illegal witch hunt on Nigerians. According to Prof. Ben Nwabueze, a seasoned jurist and constitutional expert:

Constitutional democracy is not the same as democracy. Constitutional democracy is a democracy limited by the Constitution, constitutional limitation of powers. The war against corruption should be fought within the limitation of the Constitution. But that is not what is happening. The danger is, because of the public glamor of fighting corruption, the government can get away with anything. Government should not be allowed to get away with perversions in the name of fighting corruption.81

In the same vein “The Nigerian Bar Association (NBA) and several other prominent legal practitioners have reacted to a recent statement credited to President Mohammadu Buhari in which he was quoted as saying that the ‘judiciary is his headache’ in the fight against corruption. According to the President, the judiciary was not moving at the same direction or pace in which he would want to combat corruption, thereby frustrating his efforts. But the NBA, through its President, Austin Alegeh (SAN) has said that the statement of the President ‘is a misconception,’ not backed with the facts of judiciary’s numerous challenges. Other lawyers such as Wole Olanipekun (SAN), Olisa Agbakoba (SAN), Ebun-Olu Adegboruwa Chris Akiri and Joseph Otteh, among others have also responded in a similar vein or differently to Buhari’s posturing against the judiciary, in (the) various interviews conducted by The Guardian on the matter”82.

In a related but staggered opinion Paul Onomuakpokpo has opined that, “Aside from the much-spun warning against the danger of the President Muhammadu Buhari’s anti-corruption campaign being dampened by hostile forces seeking to trap it in a terminal crisis, the government itself is on the path of willfully preventing itself from attaining its deserved denouement-punishment for the culprits.

Yes, the citizen have not come to terms with the fact that Buhari has balked at the challenge of launching a holistic anti-corruption campaign. Stripped of all its altruistic pretentions, the campaign is directed at only the members of the opposition as though Buhari’s friends, associates and supporters were not in any way smeared with the grime of corruption. But if only for the sake of approving the inauguration of the dismantling of a behemoth obstacle to the nation’s development, the citizens would brook this brazen quest to deploy presidential fiat to protect cronies that have been submerged in the same miasma of corruption like other Nigerian who are being hunted by the Economic and Financial Crimes Commission (EFCC). Hopefully, there would be another time for a holistic battle against the monster of corruption.

But what may further discredit the current campaign against corruption is the plan to give a soft landing to those who return their loots to the coffers of the government. Prof. Itse Sagay, the chairman of the presidential anti-corruption advisory committee hinted of this likelihood in an interview with journalists recently. From a superficial perspective, such a position is validated by the notion that a judicial approach to the anti-corruption campaign costs so much- the legal system is slow, the case may drag on; the judges could be bribed; and the suspect may not return the money. It was this consciousness of this perceived or real danger posed to the anti-corruption fight that made Buhari to declare a lack of confidence in the legal system, a position that provoked the ire of the members of the learned profession.

Yet Buhari must find a cure to his headache of judicial connivance. In the first place, the Buhari government is faced with this quandary because the terms of the anti-corruption campaign are only known to him and his party’s members while to the public they are locked in the realm of speculation”83.

 

Perhaps the major aspect of President Buhari’s anti-corruption crusade is the aspect that most persons accused of corruption who have been arrested have not breathed the air of freedom even when granted bail by the courts. The cross-section of learned views around Nigeria is that remanding accused persons on charges yet to be proven is unconstitutional and a breach of their fundamental human rights.84

PRESIDENT BUHARI’S WAR AGAINST CORRUPTION VS PERSONAL RIGHTS AND LIBERTIES UNDER THE NIGERIAN CONSTITUTION, 1999, AS AMENDED

Under this heading we shall examine the ongoing war against corruption in Nigeria vis-à-vis the provisions of the CFRN, apt provisions of the Criminal Justice Act 2015 (CJA), other existing domestic laws and international law as relating to the rights to personal liberties and other aspects of fundamental human rights.

It is submitted that given the express provision of Section 36(4) of the CFRN as amended, a criminally accused person is entitled to a fair trial before a proper court with relevant competence and jurisdiction to try the alleged offence and offender. It states that

"Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal….”

In the context of the cited provision of section 36(4) of the CFRN, as amended: a ‘court or tribunal’ means a court of law or tribunal with jurisdiction to try crimes (“only a court in the strict constitutional sense” of section 6 of the Constitution.)85. It must be a court that forms part of the established and regular courts invested by the Constitution with the judicial power of the Federation or a State. This is because conviction for a criminal offence and the imposition of sentence therefor pertain exclusively to judicial power, so that only a court qualified under section 6 of the Constitution to exercise judicial power can convict and sentence for a criminal offence. A tribunal which is not a court in the sense of section 6 of the Constitution cannot competently convict and sentence for a criminal offence, no matter how independent and impartial it may be.

We shall now consider other provisions of the CFRN as amended, as relating to the right of personal liberty.

 

RIGHT TO PERSONAL LIBERTY

CONSTITUTIONAL OBLIGATIONS

“Section 35 (1) of the CFRN, further provides as follows: Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law

1. In execution of the sentence or order of a court or in respect of a criminal offence of which he has been found guilty:
2. By reason of his failure to comply with the order of a court or in order to secure the fulfillment of any obligation imposed upon him by law;
3. For the purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonable necessary to prevent his committing a criminal offence;
4. In the case of a person who has not attained the age of eighteen years for the purpose of his education or welfare;
5. In the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol vagrants, for the purpose of their care or treatment or the protection of the community; or
6. For the purpose of preventing the unlawful entry of any person into Nigerian or of effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto:
7. Provided that a person who is charged with an offence and who has been detained in lawful custody awaiting trial shall not continue to be kept in such detention for a period longer than the maximum period of imprisonment prescribed for the offence.

Under sub section (2) and (3) any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice.

(3)Any person who is arrested or detained shall be informed in writing within twenty-four hours (and in language that he understands) of the fact and grounds for his arrest or detention.

Sub section (4) also provides any person who is arrested or detained in accordance with subsection (1) (c) of this section shall be brought before a court of law within a reasonable time, and if he is not tried within a period of-

1. Two months from the date of his arrest or detention in the case of a person who is custody or is not entitled to bail; or
2. Three months from the date of his arrest or detention in the case of a person who has been released on bail, he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appear for trial at a later date.

(5) In subsection (4) of this section, the expression “a reasonable time” means-

1. In the case of an arrest or detention in any place where there is a court of competent jurisdiction within a radius of forty kilometers, a period of one day; and
2. In any other case, a period of two days or such longer period as in the circumstance may be considered by the court to be reasonable.

It is important to note that sub sections (6) and (7) also provides as follows:  Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person =; and in this subsection, “the appropriate authority or person” means an authority or person specified by law while under sub section (7), it is further provided that: Nothing in this section be construed-

1. In relation to subsection (4) of this section, as applying in the case of a person arrested or detained upon reasonable suspicion of having committed a capital offence; and
2. As invalidating any law by reason only that it authorities the detention for a period not exceeding three months of a member of the armed forces of the federation or a member of the Nigeria Police Force in execution of a sentence imposed by an officer of the armed forces of the Federation or of the Nigeria police force, in respect of an offence punishable by such detention of which he has been found guilty.”

It is noteworthy to state that there are now far reaching provisions under the recently passed Administration of Justice Act 2015 which appear not to have been applied in the ongoing corruption cases in Nigeria, there are very important provisions that have not been given voice in our courts of law. References are made here to some of the important provision under the said Act in addition to other international conventions and treaties into which Nigeria is a signatory. The provisions include:

32(1) of the AJA, 2015 provides that:

1. Where a suspect taken into custody, in respect of a non-capital offence is not released on bail after 24 hours (emphasis supplied), a court having jurisdiction with respect to the offence may be notified by application on behalf of the suspect.
2. The court shall order the production of the suspect detained and inquire into the circumstance constituting the grounds of the detention and where he seems fit, admit the suspect detained to bail.
3. An application for bail under this section may be made orally or in writing (emphasis supplied)

Interpreting a similar provision under section 24(3) of the Criminal Procedure Code (CPC), it has been held in the case of Musa V Cop (2004) 9 NWLR (Pt.879) 483 Ratio 1 that: “bail may be considered whether orally or by motion even if the applicant has not been formally charged to court”.

Section 158 of the said AJA provides further that: “when a person who is suspected to have committed an offence or is accused of an offence and is arrested or detained, or appears or is brought before a court, he shall subject to the provision of the part, be entitled to bail. (emphasis supplied)

Section 162 of the same Act also provides that: “A defendant charged with an offence punishable with imprisonment for a term exceeding 3 years shall, on application to the court, be released on bail except in any of the following circumstance:” (emphasis supplied)

1. Where there is reasonable ground to believe that the defendant will, where released on bail, commit another offence.
2. Attempt to evade his trial,
3. Attempt to influence, interfere with, intimidate witnesses and or interfere in the investigation of the offence, or
4. Attempt to conceal or destroy evidence
5. Prejudice the proper investigation of the offence
6. Undermine or jeopardize the objective or purpose or functioning of the criminal justice administration including the bail system.

Section 163 of the said Act further provides that: “in any other circumstance other than those referred to under section 161 and 162 of this Act, the defendant shall be entitled to bail, unless the court sees reasons to the contrary.

A further provision is also found under section 164 of the said Act which provides that: “Where a defendant is brought before a court in any process in respect of any matter not included within section 158 to 165 of this Act, the person may on the discretion of the court, be released on his entering into recognizance, in the manner provided in the Act for his appearance before the court, or any other court at the time and place mentioned in the recognizance while section 165 (1) provides that: “the condition of bail in any case shall be at the discretion of the court with due regard to the shall not be excessive.” Further support is also found under section 167 (1), (2), (3) to the effect that: “a defendant admitted to bail may be required to provide such surety or sureties, as in the opinion of the court, will be sufficient to ensure his appearance and when required and that a person shall not be denied, prevented or restricted from entering or standing as surety for any defendant or applicant on the ground that the person is a woman and section 168 (1) of the said Act which also provides that: “a judge of a High Court may direct that the defendant in custody in a state or in the Federal Capital (FCT) territory Abuja be admitted to bail.

Other domestic legislation applicable in Nigeria include:

• Fundamental Human Right (Enforcement Procedure) Rules, 1999
• Common Law prerogative writs
• High Court Civil Procedure Rules
• National Human Rights Commission Act, 1996
• Legal Act Council Act, 1977, (as amended in 1986)
• Pubic Complaints Commission Act, 1975
• Mediation laws of some States
• Child Rights Act/Laws
• Nigerian Law Reform Commission Act, 1979
• Arbitration and Conciliation Act, 1988
• African Charter on Human and People’ Right (Ratification and Enforcement0 Act, 1983
• Various States laws on Kidnapping (Rivers State 2009; Imo State 20090
• Report of Presidential Committee on Prison Reforms and Rehabilitation
• Prison Watch Project established by the Human Rights Unit of the Lagos State Ministry of Justice
• Prison Decongestion Programme of the HA-GF
• Infrastructural and capacity improvements in Prison service
• Establishment of the Office of the Public Defender in many States Ministries of Justice
• Establishment of Mediation Centres in Some States,
• Report of the Criminal Justice Commission, and Establishment of Criminal Justice Committees
• Establishment of Committees on the Prerogative of Mercy at both the Federal and State levels
• Establishment of Fund for Procurement of Police Equipment
• Establishment of the National Human Right Commission
• Establishment of Citizens Rights Directorate in many States
• Stakeholders consultative meetings on Justice Sector Issues in some states

Infrastructural and welfare improvement in the prison

Apart from the above provisions found in the CFRN, as amended and other domestic legal and paralegal obligations, there are a myriad of international obligations to which Nigeria has ratified. They include the following:

INTERNATIONAL OBLIGATIONS

Nigeria’s International Obligations towards upholding Human Rights are govern by the following conventions and treaties, amongst others:

• Articles 9 and 11 of the Universal Declaration of Human Rights
• Article 9,10, 14 and 15 of the International Covenant on Civil and Political Rights.
• Articles 6 and 7 of The African Charter on Human and Peoples’ Rights
• The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
• Article 37, 39 and 40 of The United Nations Convention on the Rights of the Child
• Article 17 of the African Union Charter on the Rights and Welfare of the Child.
• The United Nations Standard Minimum Rules for the Administration of Juveniles Justice (the Beijing Rules)
• The United Nations Rules for Juveniles Deprived of their Liberty (the Tokyo Rules)
• United Nations Standard Minimum Rules for the Treatment of Persons in Detention
• United Nations Voluntary Fund for Victims of Torture
• All other relevant International and regional Instrument relating to this right., as well as all other relevant United Nation Standards and Norms in

Criminal Justice Administration.

1.5. Conclusion

It is submitted that while corruption stalls development and must be fought to a standstill to bring about sustainable development, the present administration of President Muhammadu Buhari is obligated in its efforts as dealing with corruption in Nigeria to comply with provisions of the CFRN, 1999, as amended all existing domestic Legislations dealing with the procedure as relating to the arraignent of persons for criminal offences, including the recently passed Administration Of Criminal Justice Act, 2015 and all international convention and treaties highlighted in this paper. This is the right way to go if Nigeria must succeed in its war against corruption and at the same time treat its citizens with the required decorum stipulated by existing domestic and international law.

One cannot help but agreeing with the recent resolution of the Body of Senior Advocates of Nigeria (BOSAN) issued recently, after its meeting jointly signed by Mr. Ebun Sofunde (SAN) and Mr. Seyi Sowemimo (SAN), to the effect that whereas  “the Body condemns all forms of corruption and money laundering by anyone, lawyers inclusive…. (and) wholeheartedly support appropriate efforts of the government aimed at curbing the menace of corruption through thorough investigation and prosecution of offenders in a fair trial that complies with due process of the law and ensures equal access to justice by the persecutor and the accused (and) guaranteeing the fundamental rights of all persons as enshrined in the Constitution of the Federal republic of Nigeria 1999 (as amended)”,…. Its further assertion that Investigations must ensure… that rights of suspects are guaranteed must also be supported.

This author further agree entirely with the further resolution of BOSAN which also condemned “all acts of disrespect by any person or agency of government, of valid orders of courts of competent jurisdiction with the warning that disrespect or disregard of court order “is a step towards anarchy, which does not and cannot augur well for a democratic society such as Nigeria.”

It is heartwarming that BOSAN also expressed concern on the “spate of disparaging remarks and attacks on the judiciary and judicial officers, often made in a generalized manner and perhaps calculated to intimidate and infuse fear in judges, who are sworn to dispense justice without fear or favour” and its further view that: that it was unfair to the many honest and hardworking judges in our country to be painted with the same brush as the few who have been found wanting for misconduct or those who bring the office into disrepute and violate their sacred oaths of office” and its warning on lawyers to “desist from joining the bandwagon of issuing “generalized statements of a disparaging nature” against judges, describing such conducts as “unprofessional”. BOSAN’s further principled reiteration that any    “belief that the harassment and intimidation of lawyers in any form in the course of their legitimate work is unlawful and counter-productive in a democratic society and that such actions, are not only unlawful but antithetical to the rule of law. It is also appropriate BOSAN’s education of the public that: “Nothing is further from the truth that once a lawyer undertakes the defence of an accused person, particularly a professional colleague, then he must be in active support of the alleged crime or be working against the anti-corruption crusade. The Nigerian Constitution, for good reason, presumes a person innocent until proven guilty before a court of competent jurisdiction following a fair hearing, with an opportunity to conduct his defence by a counsel of his choice.”

It is only necessary for lawyers to take seriously the admonition of BOSAN, in their said meeting to “continue to represent their clients to the best of their abilities, within the ambit of the law, and with compliance with the Rules of Professional Conduct for Legal Practitioners 2007” despite the misgivings expressed by the present administration of President Muhammadu Buhari86.