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The Believer As Apostate
By Kennedy Emetulu
(Culled from ThisDay Newspaper)
I read Dapo Olorunyomi's defence of the
EFCC list on the back page of the Wednesday, February 21, 2007 edition of
ThisDay newspaper and felt a little sad.
Admittedly, one can forgive what I'd call agentspeak
in
defence of a principal (after all, that is
what the work is about), but not when
such a defence amounts to professional hara-kiri.
Olorunyomi's attempt to browbeat critical
"sections of the media" into mortifying silence in the face of the lawlessness,
impunity and unconstitutionality
exhibited by the organization he now works for is
pitiable. And doing so with such a
masterful display of moral uppityness
takes the biscuit.
Olorunyomi invites us to see the "EFCC
advisory to the political parties" as
part of the "practical action" (as opposed to mere
"ethical preachments") sorely needed to
combat the cankerworm of corruption. Indeed, he dismisses as "a poor defence" a
claim by anyone
that he's being targeted for being a member
of the opposition or for belonging to
the unfavoured faction of the ruling party.
"Most
citizens", he reckons, "would expect a
person so accused to issue a sober and honest refutation of the allegations, or
in the alternative
confirm their veracity, confess his guilt
and bear his loss".
Clearly, it is a non-argument to talk about
"practical action" (as opposed to
"ethical preachments" alone), because practically every conscious Nigerian is
convinced that practical action is necessary. In
other words, the issue today is not whether
practical action is needed, but how
these practical actions are to be implemented.
Are we
to support enforcement of anti-corruption
policies
in contravention of the rule of law and natural
justice or are we to sacrifice these on the altar of political expediency and
personal whims and caprices? It
is instructive that this issue is not new,
the irony being that it still remains
an issue under a supposedly democratic government as it was under the worst of
military rule. Olorunyomi may think it's just a
simple case of an accused either refuting
the allegation or confirming it, but he must be told that the publication of
names of persons on a list and its claim to being an indictment is tantamount to
being
declared guilty before being heard, a
notion expressly forbidden by all known norms of justice.
Olorunyomi argues that because of "decades
of impunity" by public officers and
the "moral distortions that have blurred their perception of propriety", "the
good health of society should compel a most robust
attitude to politicians".
But, again, such an argument in the face of
EFCC's lawlessness is evidently
shortsighted, as impatience with the
rule of law and due process creates bigger problems for society without
achieving the objective of properly dealing with the problem
of corruption. Besides, if we accept this
argument – that is the degree of lawlessness and impunity in Nigeria justifies
the use of extralegal means of enforcement of anti-corruption policies – it
invariably follows that such justification would be available to the
armed-robbers, blackmailers, swindlers and
murderers in our midst.
I
mean, in a situation where some lawless
persons execute or enforce their own
notion of law or justice on other supposedly criminal or lawless citizens in the
name of the state (as the EFCC is doing now),
what prevents the swindlers, armed-robbers
and murderers from using the same
justification tomorrow to enforce their brand of justice if they happen to wield
political power?
The singular transparent arbiter between state
enforcement agencies and the citizen is the law and any
attempt to circumvent it in the name of
necessity or supposed good intentions
of zealous officials must be resisted by every free
citizen. After all, as they say, the road
to hell is paved with good intentions!
Olorunyomi accuses the political parties of
politicizing the matter and insists
that in spite of this the "EFCC has made an important contribution to improving
the integrity quotient in public life" to the extent that much of the
controversy around the advisory is
"testament to the persistence of
uncertainty within sections of the media and the political class as to the
degree of rigour the battle
against economic and financial crimes
should entail".
To him
therefore, there's no doubt that "the
hysteria against the EFCC" is induced or sponsored by roguish politicians and
office-holders intent
on "a sustained campaign to denude the EFCC
of all credibility", knowing its
determination and capability to bring them to book.
Most
critically for his purpose, he believes
that "sections of the media" are hands in glove with these criminal politicians
and their cohorts,
because they lack "a strategic sense of how
the media can build the ethical fibre of society" and have therefore "taken up
the queer crusade of seeking to destroy the very moral foundations of the
Commission".
But it's functionless discussing the degree
of rigour outside the purview of due
process and constitutionality.
Indeed, a discussion outside due process necessarily
raises the question of motive and a derogation would necessarily impugn the
credibility (if any) garnered
at the initial or subsequent stage(s) of
enforcement.
While I wouldn't
want to argue about what the political
parties are doing (since he
himself acknowledges that their
politicizing the issue isn't
surprising), I find it funny that he has the effrontery to complain.
From the very beginning, the EFCC through
its head and operatives has been the
one politicizing and distorting its mandate without regard to the effects of
such attitude on the larger anti-corruption vision. The worst part of the whole
thing is that some of these acts of
politicization were gratuitous! For
instance, Diepreye Alamieyeseigha was
there for the taking lawfully, but the EFCC still felt it had to
unlawfully interject itself in the
political process of his
impeachment, including carting off Bayelsa
House of Assembly members to Lagos and
Abuja, detaining, blackmailing and suborning them with a
view to removing Alamieyeseigha to satisfy
Aso Rock.
The same tendency was at play in Plateau and Ekiti!
In this particular instance, the EFCC's act of
sending a list of
supposedly indicted names to the presidency
a few weeks to the election and such boneheaded utterances to the effect that it
will not allow corrupt politicians to contest for positions in the next
dispensation again amount to interjecting itself in the political
process with a view to affecting the
outcome of the elections in favour of
one party. Considering the utterances of the president
himself and his penchant for using the
threat of the EFCC against political
opponents, this certainly isn't the right time to send him
such a list. What that does is to expose
the EFCC to a charge of being a
political instrument of the Obasanjo faction of the PDP. It is not a
defence that such names were also sent to
their political parties or that the
EFCC is not a panel and so on. Indeed, the way the
information has been handled by the
presidency through its
surreptitious deletion and addition of
names, establishment of kangaroo
panels, hurried issuance of white papers and actual dismissal
of charges against some on the list already
supposedly investigated by
the EFCC does not do credit to the
Commission. If a panel sitting in one
place in a week can dismiss EFCC's charges against some of the
accused just like that, of what value is
the taxpayer's money and the
Commission's time spent "investigating" such fellows? The fact that
the agency is now protesting that a forged
list is in circulation further
undermines the wisdom of releasing such a list in the first
place.
It's possible that the EFCC has engendered
some kind of improvement in the
integrity quotient in public life; but I personally doubt this,
because the hard facts I see contradict
this conclusion. What kind of
improvement are we celebrating when we're
daily regaled with messy details from
the PTDF scandal and when the principal perpetrators of
the corruption being revealed are the
president and vice-president of
the nation? Is it improvement that a lot of
those Ribadu himself has officially
accused at different times of corruption didn't even make
his list, including persons presently
seeking to return to or freshly run
for political office?
Frankly, it is difficult to take Mr.
Olorunyomi seriously when one
considers the fact that in all his words-parsing rage against the
media, the only mention or attempt to
discuss the law is when he
feigned horror at the idea of a court "in
the very Lagos that is home to
Nigeria's active media" granting a perpetual injunction,
restraining the EFCC from arresting Otunba
Oyewole Fasawe (a mutual
friend of Obasanjo and Atiku) after he'd
been detained for three months
without charge and without a right of fair hearing. Rather than
encourage his organization to use the court
processes to patiently explore and
exhaust the process of appeal, Olorunyomi feels more
comfortable impugning the character of a
judge for exercising the
power of discretion granted the court by
law.
In fact, the EFCC, true
to character, flouted this very order of
the court when it
subsequently raided the Abuja, Lagos and
Owo homes of Fasawe in a bid
to arrest him. It is instructive that
Justice Inumidun Akande in that same
judgment ruled that it was illegal for the EFCC to submit its
report to the president as the EFCC Act
only empowers the Commission to
prosecute cases in court. Yet, a few weeks after, the same
Commission in clear contempt of a
subsisting court ruling sends a report
along with a list of so-called indicted persons to the
president!
Mr. Olorunyomi must know that when a
person is charged with or accused of a criminal offence by an agency of the
state, his right to fair
hearing is not one to be dismissed lightly,
as its universality is testament to
its importance to civilized society. Just like every other civilized nation,
Nigeria is signatory to all international
conventions relating to the rights of
individuals and as enshrined in
our Constitution. Thus, Section 36 of the
Constitution of the Federal Republic
of Nigeria (1999) provides for every person to have a right
to a fair hearing before he/she can be
indicted or convicted of any crime.
Of course, one of the huge impediments of
the EFCC is that even though it's a
statutory body, its finances, tenure of key officials
and functionality depend very much on the
President and, to an extent,
the Attorney General. Indeed, it is a good
sign that the Senate is waking up to
this reality now, if, as we hear, there are now moves to
propose amendments to the EFCC
Establishment Act (2004).
The power of appointment and dismissal granted the
president under Section 3(2) of
the EFCC Act is scandalous. This must be
drastically curtailed via the
involvement of the National Assembly with the aim of giving appointees
security of tenure. Section 43, which
grants the Attorney General the power
to make rules and regulations with respect to the exercise of
any of the duties, functions or power of
the Commission, is also unhealthy.
Again, that power should only be exercised by the National
Assembly as part of its oversight functions
and only through amendments to the
statute establishing the Commission. I have at other
times berated government for not giving
enough resources to the EFCC.
This is because I believe some of the
Commission's unlawful acts are direct
results of lack of adequate resources (even though this does
not excuse the unlawful acts).
In order to further protect its
independence and encourage better planning
and enforcement, the
Commission needs to be funded statutorily
from a consolidated fund and not from
the presidency or finance ministry. Although there's been so
much noise made over the EFCC, it's obvious
that it's yet to fully tackle several
aspects of its mandate partly because of limited
funding. For instance, investments need to
be made in research,
training operatives in forensic accounting,
law, human rights studies, criminology
and modern methodologies in law enforcement generally. We
live in a world of aspirations, but
standards have been set, so we don't
have to reinvent the wheel.
It is in our interest for the EFCC
to institutionally establish itself in
order to outlast its present executive
creators and do the necessary work of continually taming
political corruption in the future. Indeed,
I believe the release of
the list as at when it did was an attempt
to satisfy a desperate presidency and
that would possibly not have happened if the Commission
were statutorily independent (as it should
be) or if the leadership of
the EFCC was bold enough to reject
interference and political pressures
from the top.
Therefore, Olorunyomi has to admit that his
agency bungled this list business big
time. The constitutional duty of the EFCC is to
investigate and prosecute, not distribute
lists to political parties or the
presidency with the aim of disqualifying anyone from contesting
the election. Its proper course of action
should have been to do any
investigation and pursue prosecution before the campaign season kicked
off while keeping the National Assembly
constantly informed in line with the latter's constitutional role as an
oversight body. It is terribly
discomforting to be producing a list of this sort after the
political parties have had their
conventions, chosen their candidates
and with INEC's deadline just ten days away. Such an act invariably
diminishes the democratic quality of the
choices political parties and
Nigerians would make with regard to the elections and does cast a dark
shadow over the outcome.
Thus, it's in our national interest for the
EFCC to pull back from its lawless
route and approach enforcement from a more holistic
perspective. There is nothing in the law
establishing the Commission that gives
it power over our national Constitution. And if there's
such a thing, it would be declared null and
void to the extent of its
inconsistency or incompatibility with the Constitution. For instance,
you don't have to be a lawyer to know that
Ribadu going to judges to
ask that they don't grant bail in EFCC
cases, refusing to send detainees for
treatment as directed by the court, allowing them to die
in detention or raiding places and
arresting persons without warrants are
unconstitutional acts. In fact, Ribadu is on record as opposed to
Section 35(2), which protects the right of
a person arrested or detained to
remain silent until after consultation with his/her lawyer
and Section 36(11) which protects the
choice of the accused in criminal
proceedings not to give evidence during trial. These are
basic constitutional rights that Ribadu in
his misguided zealotry considers
"constitutional constraints"!
Finally, I'm not going to say I'm really
surprised by the view expressed by
Olorunyomi knowing that he's Chief of Staff of the EFCC;
but I expected a much more reasoned
position than an outright diatribe
against the press for doing exactly what
was expected in the circumstances.
Here's a man who had no problem proclaiming that "the
media is the only one that is explicitly
given the charge to hold
government accountable", but who, when the
media calls his
organization to account, lets loose a
pestilence of acidic petulance!
The only reason for this is selective
amnesia, because if the same
Olorunyomi who escaped the snapping jaws of Abacha into exile recalls
very well, if he still genuinely remembers,
he'd see the pattern and
he'd be more scandalized by his own present
stance on this issue than the position
of those he presently opposes. People like him ought to
be the restraining influences at the
Commission – not restraining the
Commission from carrying out its lawful and constitutional duties, but
restraining it and its officials from
short-circuiting our democracy
by ignoring, circumventing or breaking the
law they've sworn to uphold. It's sad
that he's chosen instead to sell us snake oil in the
name of doing his job.
Emetulu writes from London
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