Opinion: Lawyers and War Against Corruption in Nigeria, By John Abhuere

One of the characteristics of the Nigerian elite is the promotion of selfish interest far above national interest. They have a tendency to trade away long term benefits for short term gains. It was therefore not surprising to hear some otherwise respected and brilliant people especially lawyers preaching that Mr President should go ahead with the appointment of the Ibrahim Magu as the substantive Chairman of the Economic and Financial Crimes Commission without completing the due process established by law and tradition.
They say he does not need the confirmation of the Senate after all. This followed Magu’s failure for the second time to get Senate’s confirmation. They are lawyers and may be right but before law there was reason, morality and tradition.
The purpose of this piece – the second in the series – killing our institutions softly, is to argue against the appointment of Magu as the Chairman of EFCC without the confirmation of the Senate.
Even if legal, the advantage of subjecting Magu to Senate’s screening and confirmation far outweighs the disadvantage given the awkward background to the strange interpretation of the EFCC Act . It is a queer interpretation that would not promote institutional inclusiveness. It is a historical, against reason, norm and established tradition in practice since 2003 when the Act came into being.
The interpretation was not done in good faith, or for altruistic reasons. The impression is that it was merely done to satisfy the selfish desire of some group in order to get their favoured candidate appointed at all cost no matter the moral baggage.
Before the strange interpretation the belief was that the appointment of the EFCC chairman was not a one man show, that it follows a process in which the Senate plays a role – a confirmation role. The extant law, practice and thus tradition since 2003/4 informed such belief. In this sense the new interpretation violates values and practices we hold dear.
It has no respect for the sanctity of the National Assembly. In fact it is not only contemptuous of the National Assembly, also it seeks to humiliate the body- the bastion of democracy in any country. It is thus a sure route to bitter disagreement, chaos and perdition. It should therefore be rejected for its inappropriateness to the current demand of the nation.
For sure, it is not the best approach to nation-building at this time when all hands were expected on deck especially to fight corruption, build institutions and accelerate national development.
It is an unreasonable interpretation that is against both the law of the EFCC and associated practice and tradition.
According to the EFCC Act ‘the chairman…shall be appointed by the President and shall be subject to the confirmation of the senate’. It ignores the fact too that the Senate’s confirmation of the EFCC chairman has become part of our democratic culture since 2004 without causing any injury to the polity. It thus sounds a desperate move to short-change the process in the face of some difficulties in confirming a candidate by the Senate.
By such interpretation, the proponents of exclusion of Senate from the appointment of the EFCC chairman are encouraging Mr President to break the law of the land. More specifically, the lawyers want the President to appoint the chairman without fulfilling all the conditions of the appointment as required by law by subjecting it to Senate’s confirmation.
According to them doing so now conflicts with section 171 of the constitution. For me it is illegal and illogical to follow their advice. It amounts to abridging or short-circuiting the process to do so.
Basically, the EFCC Act is creation of the National Assembly which has the constitutional powers ‘to make laws for the good government of the country’. Here, the President is enjoined by the constitution ‘to carry out laws made by the National Assembly’. This of course includes EFCC Act.
The EFCC Act was made in 2003 four years since the operation of the 1999 constitution. It was enacted with the 1999 constitution in mind. It is not in conflict say with state laws and no one is challenging its contents other than some elite lawyers and their friends. Based on reason one could have spotted some contradiction if for instance another legislative body -say the State House of Assembly – had made a similar law creating the EFCC but with different conditions of appointment and objective for Mr President to implement. Then there would be the need for a court’s interpretation- if any state or individuals complained in order to clarify and determine the correct position and to set aside that which is not in line with the constitution of the country.
It looks absurd to advise the President not to observe the laws of the land, not to respect well established tradition or only observe and respect them halfway only when convenient. It will mark the real beginning of the rapid sliding of the country toward the indiscriminate destruction of whatever has remained of our institutions, values including democracy. How many ships must be wrecked before we realise that we are faced with stormy weathers?. Laws are made for man so that society will be better and orderly for him to operate smoothly. Man is not made for law . Therefore any law that seeks to hurt society, upsets orderliness and undercuts institutions should be set aside.
For many reasons especially moral and political, the new interpretation appears queer and thus unacceptable. I would urge Mr President not to heed the interpreters desperate move. It is a cunning way to circumvent the law and tradition for elite’s short term gains only. These are not the best of times. Certainly not the time to throw stones in all directions. As el Rufai has noted in his letter to Mr President ‘frosty relationship’ between the presidency and many other sectors of the economy need mending. According to him the ‘APC administration has not only failed to manage expectations of the populace’ also, there had been ‘frosty relationship’ with ‘elders of the party’, ‘leadership of the party’, ‘other arms of the government- National Assembly, and the judiciary, and alienation of governors’.
Economic recession, political mistrust, institutional conflicts, ethnic animosities, individual doubt and cynicism dominate and prevail. It is certainly not the time to throw stones indiscriminately at glass houses. The consequence can be dire for all of us. I believe that every step taken by Mr President must be to calm the storm, win the support of all to his policy agenda, restore confidence in our institutions and repair whatever unintended damage done in the past and deepen some core values such as integrity.
Let it be remembered that Magu failed to get Senate’s confirmation of his appointment on moral grounds. The security report on him was judged to be bad for a man being proposed to head an anti-corruption agency. It is different from ability to perform. This is the time to repair.
For a way forward el Rufai had asked for a positive change through ‘active stakeholders and process engagement and stop taking things and important matters for granted’.
This is the right thing to do do rather than trying to circumvent the constitution and tradition by a queer interpretation of the the law to upset a winning tradition. This is important because thinking through the problems of the country especially the challenge of fighting and defeating corruption, it is clear that the President cannot win the war alone. All hands are required on deck for success.
Unfortunately the lawyers’ recent queer interpretation of the EFCC law would not promote the necessary institutional inclusiveness required here for success. It is a bad advice that would doom our institutions and weaken the war against corruption sooner than later.
Look at the way the public has reacted to the Magu case so far. First it was heavily anti-Senate in favour of the Executive. But lately after the DSS report , sympathy has steadily shifted from the executive to the National Assembly. And some of us who were once losing their courage and voice are regaining and even suggesting ways to fight corruption. Time, it has been observed, heals the wound. How time changes everything!
This author was once on the side of Magu and he still believes that he has the nerves to do the needful. I remember how angry I was when Akinlotan of palladium fame criticized the brashness of Maku’s approach in the Sunday Nation. But that was before I read the black report on him by the DSS. With the March of time since the reason for the Senate’s rejection of Magu’s nomination was made public, right thinking citizens had begun to question the rationale of appointing a person reportedly known to have moral stains to head an anti-graft agency. They began to wonder aloud whether Magu was the only one fit in a population of over 180 million people to fight high profile corruption in Nigeria.
Many of us especially those who think that Magu has got the ability and skill to prosecute the war against corruption often make the mistake of reducing the issue at stakes to personality thing . But as I have argued in an earlier episode, the problem is really not about Magu or Saraki – certainly not the destiny of one person. Rather it is about the fortunes of the entire society – the need to grow and strengthen our institutions for the collective good of the country.
Beyond the immediate gains, we should be genuinely concerned about the institutional implications of continuing with Magu after he had been declared unfit by the DSS and so rejected by the Senate.
Magu’s case left the realm of law to the solemn altar of morality after his second appearance before the Senate. Corruption was reportedly oozing at the background. As we know, perception matters a lot here and that is the greatest problem facing us all now. Can we conveniently disregard the report of the DSS on the matter without sending the wrong signals to the rest of society and the rest of the world? Can we continue to humiliate the National Assembly for standing on moral ground of probity without violating the moral conscience of society? Can we reject the senate’s position based on a report at its disposal prepared and submitted by a top security agency without hurting the tenets of democracy and jeopardizing the war against corruption itself?
There is some tinge of contradiction to consider. In an era of renewed war against corruption when change and related efforts are expected to start with each citizen- you and I-is it advisable to brush aside morality without hurting the cause at hand? Is it not better for the individual aspiring to be on the high horse of anti-corruption crusade to come in with high moral credentials? Can such person function without people holding their nose or winking in disapproval? Absolutely, it makes no sense to ignore such moral questions about Magu’s appointment. And it serves no useful purpose to sacrifice so much to have him on board EFCC.
By their patriotic action, the Senate challenges the moral conscience of the Executive arm of government to live up to expectations by doing what it daily preaches. They are asking the Executive to give positive change a chance- to allow change to start with it by sending to them only nominees with clean records for confirmation and not those with documented dirt. They are also saying: put your house in order and do a proper search before nominating a candidate for a job. Instead of praise and support for the Senate, some are plotting its disgrace and downfall. A hostile reaction from the National Assembly could be messy for the entire society.
Unfortunately the trouble is that the bad dossier from the DSS questioning Mr Magu’s moral sense and integrity cannot be easily forgotten. It cannot be glossed over because as Dwight Eisenhower has observed ‘the supreme quality of leadership is unquestionably integrity’ and without it there can be ‘no success…in office’. We have a duty to strive for the goodness of society which according to Dennis Prager is about ‘character-integrity, honesty, kindness, moral courage and….the way we treat other people’.
There are other reasons the lawyers’ new interpretation of the constitution in relation to the EFCC appointment should be rejected.
It seems to me that those egging the President to breach the letters and spirits of the constitution with wrong interpretation of the law are oblivious of history. Nigeria is not a stranger to law manipulation to suit elite’s interest with disastrous consequences. Those advisers should recall the sad example of the 1960s when the rule of law failed the moral test of the time in the old Western region. I am referring to the Akintola- Adegbenro court case in 1962 during the Western region political crisis. It would be recalled that for selfish reasons the authorities hinged on legal technicality, to wantonly disrespect and disregard the morality as well as rule of law itself and so stayed put in office instead of quitting in accordance with the extant law. The rest is history as the West went wild with fire.
It does not worth the trouble or risk especially in a representative democracy that thrives on the rule of law and morality. It will hurt it badly because representative democracy is foremost a product of morality. Morality was at the background when a group of people felt that a ‘government of the people by the people’ is far better than a government of one man and his select courtiers. It was there when they wanted to guide against dictatorship and decided to make laws to elect people and erect representative government or democracy in order to prevent dictatorship. Democracy dies when pre-set rule of the game and morality are wantonly disregarded and dispensed with in society for selfish reasons.
The new reading of the EFCC Act may be legally correct but it serves no useful purpose in the national interest. Until the courts interpret, I would not clap for it because it conflicts with reason, convention, morality, good intention of the act and my good sense of judgment. My understanding is that the National Assembly makes laws for the good governance of the country and the Executive implements them. One of the laws made by the National Assembly is the EFCC Act and it is the duty of the executive to implement not in part or as convenient to it, but wholly in the national interest.
Considering all the associated disadvantage and harmful effects therefrom in confirming a man with very adverse report by the DSS , the queer interpretation amounts to being clever by half. If the framers of that Act did not see the wisdom of a Senate’s confirmation of the EFCC chief, they would not have said so. The appointment of the EFCC chairman is a process which once started should be completed in accordance with both the letters and spirits of the law.

Dr. Abhuere, FNIM, is the founder of Centre for Child Care and Youth Development, Abuja

Author: News Editor

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