AN ADVISORY FOR THE EFCC

The furore that has been caused by the so-called EFCC advisory list which dominated the headlines this week needs to be properly dimensioned; to start with, if this is designed to ensure that those who engage in corrupt practices are denied from profiting from such, it will serve us well to do so within the ambit of the law. And if the intention of the EFCC is truly to provide such information that will guide the political parties in selecting candidates for the 2011 general elections, it only needed to be reminded that this is not part of its mandate. In a rebuttal, the EFCC has humbly acknowledged, a posteriori, the fact that it does not indeed have the powers to disqualify a candidate from seeking an elective position, that matter has already been fully addressed by the courts. So what was the purpose of the advisory? This development has brought to the fore concerns about the integrity of public institutions. Before publishing the list, was the EFCC not aware of its core mandate? Even some of the names on the list belong to persons who had been duly cleared by the courts of any wrongdoing.

The court had also ruled that Gabriel Aduku, a former Minister of State for Health had no case to answer. In defending itself, the EFCC claims that the list was actually compiled in 2008 and that it was taken from its website and sent to political parties as an advisory. But how does the EFCC explain the fact that certain key names in both business and politics are conveniently missing from the list as at that date? And why is it sending the list now and not seven months ago or periodically in order to show that the publication of such a list is part of its normal schedule of business? The fight against corruption cannot be properly fought with the national anti-corruption body advertising signs of incompetence either in terms of its understanding of its own mandate or the quality of its process. The national anti-corruption agency publishing names of otherwise “innocent” persons as unfit for public office, and leaving out the names of others in a supposed advisory list openly puts to question its natural intentions and neutrality in the election process whereas it is important for such a body to be seen to be transparent and above board at all times. For the question can be asked: what is its motivation? Is someone trying to impress President Goodluck Jonathan? It is a matter of public record, for example, that President Goodluck Jonathan’s wife was once probed by the EFCC. Why is her name not on the list? Some of the persons whose names appeared on the list are already threatening to go to court, and make claims on the grounds of defamation. They probably won’t carry out the threat but the lesson for the EFCC in this is that it must learn to be more circumspect. In 2007, there had been a similar dirty politicking over the EFCC list of cases, with threats by the body that certain persons would not be allowed to seek public office. What came out of that was the revelation that the EFCC was dabbling into politics and that it had become a tool in the hands of the then incumbent President for settling political scores. A few weeks ago, we had warned against the EFCC turning itself into such a tool of political witch-hunt when it appeared that the anti-corruption body was targeting and intimidating coincidentally, only those governors who were opposed to President Goodluck Jonathan’s political ambition (Crossroads, The Guardian, September, 4 at page 62). In August, Mrs. Farida Waziri, the EFCC chair had boasted that she and her team will stop some politicians who want to “come back to office” because to allow them to do so will be a “mockery” of the political system. It is therefore strange that the same EFCC under her watch says it has no intention to stop anybody. Such double-speak even when it arises from new knowledge about the limits of mandate smacks of insincerity. The extant rule as stated in Action Congress vs INEC is that only the courts of law can disqualify a candidate from participating in an election and the grounds for doing so are properly spelled out in sections of the Constitution, and of course the court will not act except the matter is brought before it by an aggrieved party. There are very clear distinctions between being “qualified”, “unqualified” and “disqualified” as well as “nomination” and “qualification” which only a court of law inquire into. Besides, there are other issues raised by the so-called EFCC advisory list: have the persons on the list been convicted or indicted? It is to be remembered that even mere indictment in itself is not enough except it has been accepted by the Federal or state Government through the instrumentality of a White Paper (Ime Umanah vs. Obong V. Attah &ors (2006) 2 EPR 594 at pp. 632-633); even then a court of law can still inquire into its legality with regard to human rights and due process of law. In the same case just cited, the court had ruled that “nothing short of conviction by a court of law would disqualify a candidate contesting the election…” Mere investigation or prosecution, therefore, does not amount to guilt in the context of Section 28 of the 1999 Constitution. Nigeria runs an accusatorial justice system which says that the accused is innocent until proven guilty, and the burden of proof is upon he who alleges. The EFCC advisory may generate a lot of sentiments and emotions but a court of law acts only on the basis of verifiable facts, not motor park gossip. In addition, it is the prerogative of the political party to nominate candidates for elections. This is why the political parties have been saying that the so-called INEC advisory list is of no use to them. That is also why questions have been raised about the motive of the anti-corruption body getting so anxious about political matters whereas it is so negligent on its core duties. It is also further established that “the proper time to challenge the qualification to contest an election is after the election” (Tsoho & Anor v Ibrahim Yahaya, Peters vs David & 3 ors, Balewa vs Muazyu & 4 ors.), the only caveat to add that is that at this stage, the court may also now query the party nomination process (Ugwu vs. Ararume, Amaechi vs INEC, reversing the position in Dalhatu vs. Turaki, Onuoha vs Okafor), but still, the power lies with the courts, not INEC, not the anti-corruption agency. It is such a complex web that the EFCC has no business delving into not even as an unwanted adviser. The point needs restating that the national anti-corruption body cannot and must not become a tool of mischief in the hands of any power bloc. The Minister of Justice and Attorney General of the Federation had written to the EFCC warning it not to heat up the polity by publishing an advisory list that can cause disaffection. I think that what heats up the polity more is the lack of intra-governmental synergy. If such synergy existed, this matter would not have reached the public domain; the leakage of the AGF’s letter to the media shows clear internal disjunction, particularly given the emphasis on the EFCC’s “incessant political statements capable of embarrassing the Federal Government of Nigeria and unduly heating up the polity.” The EFCC’s strongest defence so far is that it is interested in sensititising the public. Part of its mandate includes the prevention of corruption, but it could perhaps do a lot more by ensuring that more persons are convicted and that the law is fair to all concerned, assisted by diligent prosecution. A point which the AGF’s office needs to play closer attention to as our recent memory of the office points to an AGF’s office that can be the key clog in the wheel of the fight against corruption. Transparency International, the global corruption index monitoring body in its latest report discloses that Nigeria has dropped four steps in its ratings. Mrs. Farida Waziri should be concerned about that. The general concern is that under her watch, the fight against corruption has been less spirited. In the anti-corruption fight, public perception is crucial because the ultimate objective is to ensure that the people themselves take charge of the fight, resulting in society-wide change of attitudes and commitment. Where the people feel that the fight is political and that the authorities are merely interested in mischief, they are likely to be unconcerned. Such apathy could be disastrous in a country where petty corruption is as costly and as systemic as grand corruption. In the assessments, Nigeria is worse off on the national integrity scorecard than countries like Botswana, Mali, Senegal, Liberia, Burkina Faso, Benin Republic, Gambia and Niger, and whereas other signatories to the anti-corruption conventions (the United Nations Convention Against Corruption, and the African Union Convention on Preventing and Combating Corruption) have designed national anti-corruption strategy documents, Nigeria does not have one, perhaps the reason why the fight against corruption is tied to individual whims and is overly centralized. There is need for fresh momentum, more so as the publication of the EFCC advisory list on corruption has drawn no more than general cynicism, even from the indicted. The true state of the anti-corruption war in Nigeria today is that the guilty can arrange their own brand of punishment, including serving the sentence in a five-star hospice, and that there are two kinds of judgement (one for the poor, another for the rich), and that in any case you only get caught when you are not well-connected or you have very powerful enemies. This is possible in part because the anti-corruption agencies have been less than efficient. One Senator, a former police chief once took a look at the National Assembly and proclaimed that he was sitting in the midst of criminals and hoodlums, and that he knew this from his work as a policeman. He was intimidated into silence by his colleagues, not much has been heard from him since then. Many of the Governors whose names showed up on a similar EFCC advisory list in 2007 are now Senators, or have been appointed as Ministers or Advisers to the Federal Government; the same set is preparing for the next general elections. Without concrete convictions of the accused, the EFCC will remain enmeshed in this kind of unproductive dog-barks-but-can’t-bite game.