Nigerian lawmakers are again in danger of making a mockery of themselves. "Pass the bill; forfeit your wealth and assets!" That was the reasoning. The fear of forfeiture made members of the National Assembly to dump an otherwise meaningful legislation. But their action amounts to nothing more than a fruitless undertaking, because, in the long run, the long arm of the law will catch up with them.
In the beginning, in the year 2010, the United Nations' Office on Drugs and Crime (UNODC) discovered that Nigeria was strategically placed to engage a paradigm shift in the war against drugs' movement and crime and, therefore, sought to assist the nation in creating a legislation that would effectively tackle the problem.
Seminars and conferences were organised by the UNODC in Abuja and Kaduna.
The reasoning behind the engagements was with a view to ensuring that Nigerian legislators understood not only the importance, but also the necessity of such. During the conferences and seminars, the legislators spoke, in inspiring and committed terms, of how best Nigeria could be a catalyst in the black world.
Having concluded the sensitisation exercise, the UNODC went a step further.
Therefore, the UNODC, as was revealed last week, "brought in and funded the activities of some experts from the United Kingdom (UK) to assist in drafting the Bill for a possible Act regarding asset forfeiture".
However, efforts by the Economic and Financial Crimes Commission, EFCC, the facilitator of the process, to add to its legal bite in dealing with corrupt politicians, met a brick wall as the National Assembly made sure the Assets Forfeiture Bill (AFB) never saw light of day.
As one dependable source hinted, "the essence of the law is to make accused persons that flee the land but had acquired properties via financial crimes forfeit such acquisitions to the Federal Government of Nigeria. Twice the draft was sent to NASS but was thrown out".
For instance, one of the reasons for the action, a senator said, was that "with what we see going on, whereby some people are just singled out for public disgrace, why should the Senate add more powers to the ones the Commission already has?"
Enter Constitutional Amendment
Moving a ridiculous step further, members of the National Assembly decided that the constitutionally guaranteed powers of the Code of Conduct Bureau (CCB) needed to be quashed.
They may have taken their cue from President Goodluck Ebele Jonathan. During a publicly televised media chat, he told Nigerians that he could not be bothered by the noise in the media regarding his refusal to publicly declare his assets. His former boss, Umaru Musa Yar'Adua, publicly declared his, and it had to take some prompting before Jonathan, then a Vice President, followed suit.
Today, Jonathan is President and Commander-in-Chief and his decision, though not illegal, may have inspired members of the National Assembly to go a step further by actually proposing to cause the CCB to be removed from the Constitution and killed.
Position of the CCB
Therefore, onThursday, November 15, 2012, at the Lagos Airport Hotel, Ikeja, Lagos, where the zonal public hearing on the amendment of the Constitution took place, it was one Dr. Ademola Adebo, a federal commissioner of the CCB, who made a presentation on why the move by the National Assembly was disgraceful, presidential inspiration or not.
During Ademola's presentation, which drew applause from members of the public, it was disclosed that there are about 100 countries that have a similar legislation about code of conduct.
Indeed, there are some 22 countries that actually have constitutional provisions backing a Code of Conduct Bureau.
During the public hearing, the CCB outlined its position thus:
(a) "The Code of Conduct Bureau has a very clear and unique mandate to fight corruption through Code of Conduct for Public Officers especially the assets declaration process, which, according to a World Bank report, is the system that is operational in 101 countries worldwide and entrenched in the Constitution of about 22 countries including Nigeria.
(b) "The inimical effects of corruption on the economic and socio - political development of the country are colossal and consequently the Code of Conduct Bureau should be further empowered with constitutional back-up for it to have the needed potency for effectiveness. Its removal from the Constitution will not just render it susceptible to abuse and manipulation, it would further weaken the efforts of the Bureau in the implementation of the mandate of checking corruption in public service.
(c) "Furthermore, the corporate image of the country has been greatly eroded with Nigeria being rated by Transparency International as one of the most corrupt countries in the world. It is for this reason that the war against corruption has become an issue of national priority, prominence and importance. The retention of the Code of Conduct in the Constitution is consequently not only desirable but imperative so as to emphasize the importance the country attaches to the establishment and execution of assigned mandate by the Bureau. To do otherwise will amount to sending wrong signals to the citizenry and the international community, this can affect not only international confidence on good governance and intent of government of Nigeria but also create skepticism on the part of foreign investors and diplomats.
"Only recently, at the Bi-national Commission meeting between Nigeria and USA, the United States government urged that our country's elected and senior public officials make their assets declaration public. This is a fallout amid the rising public despair about official graft in the country. Of course, this is not surprising in the face of the recent pension scam and the House of Representatives Committee on Fuel Subsidy bribery saga. These incidents have put a heavy scar on the country's anti-corruption drive that removing this vital instrument of checking corruption that has been acknowledged the world over as an effective deterrence in fighting corruption would only be sending wrong signals to Nigerians and the outside world that the country is not serious, after all, about fighting the scourge.
(d) "The Constitution is the grundnorm and the organic law of Nigeria. It is supreme law for the country, and once the powers, rights and limitations are identified as having been established, their existence cannot be challenged or disputed in any Court of Law. This explains why the Code of Conduct was enshrined in the Constitution. It was deliberate and meant to forestall a challenge to any of the powers of the Code of Conduct Bureau and to give it utmost free and unfettered environment to carry out its mandate.
All other Acts of Parliament and Legislations are subsidiary and inferior to the Constitution, and where the provisions of other Acts are in conflict or inconsistent with any provision of the constitution, it is rendered null and void. While the provisions of all other Acts or Laws can be challenged in a Court of Law and, if successful, nullified, the provisions of the Constitution are sacrosanct and cannot be nullified by any Court of Law. The Courts can only interpret and explain their extent and implications, in cases properly brought before it. It is for this reason that the Code of Conduct should remain in the Constitution and thus empower the agency with Constitutional backing to effectively carry out its mandate. Constitution, being the highest law of the land, if fighting corruption is an uppermost desire of state towards instituting transparency and accountability in governance, then the Code of Conduct should be part of the highest law of the land. It should therefore be retained in the Constitution of the Federal Republic of Nigeria.
(e) "The Seventh Schedule to the Constitution contains the Oaths of Allegiance and Oaths of Office of the President of the Federal Republic of Nigeria, Vice-President, and also those of the State Governors, Deputy Governors, Ministers, Commissioners, Special Advisers and the Judicial Oath. This also applies to the members of the National Assembly and States Houses of Assembly and it is pursuant to Sections 52, 94, 135, 140, 142, 180, 185, 187, 194 and 290 of the Constitution which makes it mandatory for these class of persons named therein to swear to.
"The Oaths of Office all contain the phrase: 'That I will abide by the Code of Conduct, contained in the Fifth Schedule to the Constitution of the Federal Republic of Nigeria (...)'.
"This clearly shows the importance and significance placed on the Code of Conduct with particular reference to taking of Oath of Office by Public Officers, consequently the need for its retention in the Constitution.
"The inclusion of Code of Conduct in the constitution indirectly protects public officers who abide by it, because it is a constitutional requirement done under oath before a High Court Judge, and thus given serious legal backing.
"Legal documentation of assets and liabilities by public officers can insulate declarants against blatant allegations of abuse of office and false accusations of illegal acquisitions which can become matters of unnecessary petitions and persistent litigations in the courts since the declarations are, by the constitutional and legal process, legal documents that have been put through oath taking".
In conclusion, the CCB insists, "The vision, mission, mandate, operations, and activities of the Agency will be better served if the Code of Conduct is retained in the Constitution. What is required is the strengthening of the Code of Conduct Bureau in the areas of legislation that will ensure tougher sanctions, and, better and independent funding to enable it cope with the increasingly sophisticated dimension of corrupt practices in the country.
"We therefore urge this August Committee to uphold our most respectful and humble views for the pursuit of transparency, accountability and good governance in our country".
Weakness In Strategy
Investigations into the activities of the CCB revealed that the body may have engaged a mode that may pour cold water on its efforts.
In a last year interview, eminent Justice of the Supreme Court, Kayode Eso(rtd) said that the concept of Plea Bargain is not only illegal, but it also encourages stealing. The 87-year old jurist also made it clear that the concept of Plea Bargain is both anathema to an anti-corruption war and it equally sends a corrupt signal about the government's war on corruption.
"This is an encouragement for other governors to steal when they come. There is no plea bargaining in our law. The importation is wrong", he said. "Issue of (a former state governor in the South South zone) who was alleged to have stolen billions and billions of naira. They said they had this system of plea bargaining. They asked him to plead to some most minor terms there and then he was fined three million naira, which he picked out of his purse and paid there. It sent a notion that it had been pre-arranged that it would not be more than three million. Plea bargaining is actually not our law. We never had plea bargaining. It is corruption for anybody who imports plea bargaining into our law".
And whereas the Economic and Financial Crimes Commission (EFCC) has come out to explain that the courts have the final say on the issue of Plea Bargain, Mr. Sam Saba, Chairman of the CCB, told Nigerians that some governors were allowed to go free because they cooperated with the CCB.
His position, not shared by some of the commissioners in the CCB, is raising fresh posers regarding the deal the body reportedly entered into with some former governors who breached the law. The governors have since been let off the hook, according to the CCB Chairman.
Mr. Saba, during a press briefing on September 27, 2011, explained that the CCB decided to drop the cases against some ex-governors after they admitted guilt and made restitution to the Federal Government, specifically naming the former governor of Jigawa State, Saminu Turaki, among those that benefited from the said process.
Though he declined to reveal the identity of other indicted ex-governors who embraced the 'plea-bargain' option, the Bureau Chairman, however, divulged that 15 former governors would soon be charged to court for allegedly lying in the assets declaration forms they filled and filed while in office, adding that some of their assets are currently undergoing intense verification.
"I want to assure you that verification of the assets of some of the ex-governors is still ongoing, including that of even those who are still in power".
However, in the Part One of the Third Schedule to the 1999 Constitution as amended, the illegality of Plea Bargain is brought further home as made clear by Justice Eso.
Section 3, d) and e) state that the CCB shall:
"(d) ensure compliance with and, where appropriate, enforce the provisions of the Code of Conduct of any law relating thereto;
"e) receive complaints about non-compliance with or breach of the provisions of the Code of Conduct or any law in relation thereto, investigate the complaint and, where appropriate, refer such matters to the Code of Conduct Tribunal".
All through the 1999 Constitution, there was nowhere the issue of discretionary power of the CCB was mentioned, therefore, rendering Justice Eso's contention correct.
CCB'S Sorry Pass
In the course of investigating and preparing for this story, it was discovered that the framers of the letters setting up the CCB had their vision for anti-corruption. In fact, the United Nations Charter, African Union Charter, ECOWAS Charter and even the European Union Charter on anti-corruption were all predated by Nigeria's establishment of the CCB and, therefore, suggest that the war on corruption was meant to be taken seriously.
When Chief Olusegun Obasanjo took over in 1999 as President and Commander-in-Chief, one of the issues he sought to tackle was corruption.
Indeed, Obasanjo, characteristically, entrapped members of the CCB. Some consultants had been sent to the CCB to solicit a partnership on the best way forward to assist it in the area of capacity building. The CCB that had been operating, without the constitutional composition required ,simply wanted to be left to operate in the manner of "business as usual".
The Chairman, Saba, had reportedly been a staff of the CCB almost since its establishment. He was alleged to have retired from the Bureau as a Permanent Secretary.
During the Senate confirmation hearing for the commissioners who were nominated, including Saba, some senators were said to have kicked against his being brought back into the Bureau after retirement. Intervention from his state governor was said to have swayed the senators who eventually acceded to his nomination.
It was because Obasanjo lost confidence in the way the CCB was being run he (Obasanjo) sent the Independent Corrupt Practices Commission (ICPC) Bill before the National Assembly, because he did not believe that the CCB would do a good job at that time - especially with the caliber of people there.
Later, and discovering that the ICPC did not meet his expectations, Obasanjo established the EFCC.
Because of what Obasanjo saw as lack of capacity in the CCB then, he did not even bother to constitute the Bureau properly. The former President was quoted as telling a confidant that the "Bureau would not achieve much in terms of carrying out its anti-corruption mandate with the caliber of people there" at that time.
That was why the late President Umaru Musa Yar'Adua decided that he would give vent to the constitutional responsibilities of the CCB by scouting for credible Nigerians to sit on the Bureau.
Before Yar'Adua, the CCB had never really been constituted following the expectations and intendment of the Constitution of the Federal Republic of Nigeria. For instance, whereas one of the sections of the Constitution states that the 10 members to be appointed into the CCB shall, at the time of appointment, "not be less than fifty years of age and subject to the provisions of section 157 of this Constitution shall vacate his office on attaining the age of seventy years", this had not really been so in the past.
But before Yar'Adua could fill the Bureau with members, he died.
The first engagement of Jonathan, upon becoming Acting President, was to send the names of the proposed commissioners of the Bureau to the Senate for confirmation. Because Yar'Adua kept faith with Jonathan, the then Acting President did not tamper with the list of nominees prepared by his predecessor before he died. It was also discovered that, indeed, Jonathan's nominee into the Bureau as a Commissioner was endorsed by Yar'Adua. And so, when Jonathan was presenting the list, he did not change any name. Therefore, that was the first time in the history of the Bureau that it would be properly constituted. This batch of Commissioners were sworn-in on April 30, 2010, and Jonathan charged them that their Agency is the one with the capacity to fight corruption and the Constitution empowers their Bureau to handle all public servants - mind you, public servants are seen largely as the group of people driving the entrenchment of corruption in the country.
Today, Western powers have made anti-corruption a condition precedent for support, aid and assistance to developing countries.
But is the Bureau functioning well or being allowed to function well? Removing it from the Constitution would not solve Nigeria's problem; it would only make a mockery of Jonathan's drive against corruption. Therefore, the President should call members of the National Assembly, dominated by his party members, to order.