Prosecuting Public Officials

By Fred Igbeare

In a recent appearance before Congress, US Attorney-General (AG) Alberto Gonzales couldn’t articulate a clear answer to a simple question.  Why were multiple federal attorneys fired?  His wavering highlighted a troubling flaw in the American legal system and others worldwide.  The executive branch can exercise inappropriate control over government prosecutors, and by implications the cases they pursue.  In the US, at least, Gonzales gets grilled. 

In Nigeria, few people seem to care about the AG’s office.  An exception would be when the current Federal AG Bayo Ojo performs the foot-in-mouth dance!  He did that in Oyo State by disobeying a Federal Appeals Court ruling.  The Supreme Court eventually set him straight by reinstating an illegally impeached governor.

The politicization of the AG’s office is inevitable.  We must however reduce its exposure to abuse.  My recommendation is: elect all AGs in Nigeria, America and elsewhere!  If elected, they would be freed significantly from direct executive meddling.  That would entail free and fair elections, of course. 

New York State in the US provides a great illustration for my point.  The state Attorney-General is elected.  Elliot Spitzer who held that post previously is now the state governor. An attractive incentive for job performance, AGs can move up when they do well!  They can make a career of catching crooks and be promoted (or hired and fired) by the people.  

Would elections further politicize the AG’s office?  Not really.  Elections would make the inner-workings of the hiring and firing process more transparent.  And with a vibrant press, it would be much easier to expose biased or corrupt government prosecutors.

The increased public scrutiny derived from elections would compel the AGs to do better jobs in bringing criminals to justice.  Not just petty villains but powerful ones too!  Compromised government prosecutors can promote an environment where people increasingly commit crimes with impunity.  We definitely don’t want!

The Dele Giwa case in Nigeria illustrates how dangerous it is to leave the AG’s office beholden to the executive branch.  With very obvious culprits implicated in the murder, a top journalist was killed by letter bomb about 20 years ago.  His lawyer, Gani Fawehinmi, using powers inherited from British common law, tried to exercise the right of private prosecution.         

Fawehinmi was outmaneuvered by a military regime afraid its officers would be convicted for Giwa’s murder.  The government of President Ibrahim Babangida changed the law of private prosecution in Lagos State to hinder Fawehinmi’s efforts. The regime didn’t stop there. Using the then Lagos State Attorney-General, it pretended to take up the case and deliberately botched its prosecution.

Flash forward to the present time and consider the reported intent of the national electoral commission, INEC, to prosecute election riggers.  Can it be trusted to do a good job?  To go by the Giwa example, government prosecutors are not always sincere.  Independent prosecution is therefore imperative, preferably by lawyers like Fawehinmi who have the resources to do it. 

The electoral commission’s intention is suspicious.  Given the international outcry against the widespread rigging in the recent elections, President Olusegun Obasanjo is in a tight corner.  His image as an international statesman is at stake.  Is it possible that some riggers may be sacrificed to show he is against corruption and rigging, hence the INEC announcement? 

A related development concerns the ICPC (Independent Corrupt Practices and Other Related Offences Commission).  Its Chairman reported recently that the Nigerian Chief Justice, as stipulated by law, would soon appoint the ICPC’s independent counsels.  Their work would be to probe and prosecute corrupt governors and others.  A lack of funds had hindered the ICPC until the United Nations Development Program (UNDP) came to its rescue. 

Interesting, eh?  Was the ICPC starved of funds for political reasons?  Nigeria’s democratic experiment is revealing issues that need fixing.  One challenge is to ensure that institutions like the ICPC are insulated from financial politicking.

As for the Giwa case, that it remained unresolved under successive governments, including Obasanjo’s raises troubling questions.  Was some kind of deal struck between him and Babangida on this case?  Has incoming President Umaru Yar’Adua signed on to this dubious deal?

The abuse of power in the Giwa matter should not be allowed to recur.  In the US, Babangida and his henchmen would probably be in jail now.  With all its flaws, the Americas system is more matured, with greater checks on executive excesses.  Nigeria has a long way to go, but may have an advantage.  It can build on the Fawehinmi example and learn from America’s mistakes. 

(fredlintaz@yahoo.com)

Robot  Villager

# 1 var sbtitle6505=encodeURIComponent(Prosecuting...Read the full article. Posted by Robot| 22.05.2007 14:47

pappilo  Villager

# 2 Will the defence attache to the Nigeria High commision in India, Captain G A Ojedokun be prosecuted? He was caught with $2.3 million cash money (ego, pepper) on his way to Nigeria. Posted by pappilo| 23.05.2007 07:28

fredlintaz  Villager

# 3 Critical update: No money to prosecute ex-governors, says ICPC By Olusola Fabiyi, Abuja Published: Saturday, 2 Jun 2007 The Independent Corrupt Practices and Other Related Offences Commission has said that non-availability of funds is stalling the prosecution of former governors who are being accused of corruption. The anti-corruption agency said it had compiled the names of the former governors and forwarded it to the office of the Chief Justice of Nigeria, Justice Idris Kutigi, who is expected to appoint independent counsels to handle the prosecution. The ICPC’s Head, Public Enlightenment Department, Mr. Mike Sowe, who spoke in an exclusive telephone interview with our correspondent, said though he could not ascertain the number of the former governors to be prosecuted. He, however, explained that the commission had done its own bit of the job by investigating them and forwarding their list to the office of the CJN. He said it was not the duty of the commission to prosecute as the onus to do that, according to him, lies with the CJN. “The Chief Justice of Nigeria has to appoint an independent counsel to prosecute the corrupt governors; it is the responsibility of the CJN to prosecute. But the money for that purpose is not there and so we cannot blame the office of the chief justice for the delay, ” Sowe added. Asked if the commission was not aiming at making the CJN to speed up action on the matter, he replied in the negative. Sowe said there was nothing the commission and the CJN could do if the executive arm of government did not make the money available. He added, “It is neither the commission nor the chief justice that would make the money ready. It is the duty of the Federal Government to make the budgetary provisions in the budget and if that is not done, what can we do? So, you can see that it is money that is delaying their prosecution and not that we have not done our work, or that we are shying away from our responsibility.” Asked why the ex-governors have not been picked up for interrogation, Sowe said there was no need for that as the commission was sure of the facts it had presented before the CJN. Meanwhile, our correspondent has gathered that the need for the Yar’Adua administration to stabilise may have been responsible for the non-arrest of the former governors by the Economic and Financial Crimes Commission. Authoritative sources at the commission told our correspondent that the EFCC had been asked to tread softly, so as not to heat up the polity by arresting the former governors. The source said initially there were 23 governors on the wanted list of the commission, but the list has been trrimed down to those with “very bad cases,” which the source put at “about seven.” He said, “You know the present government is fighting for legitimacy and a lot of alignments are going on everywhere. Moreover, the government seems not to be ready to heat up the polity, which it thinks the arrests could do. “For us, there is no major change yet and there are fears whether we may not return to the statuo quo.” The source, however, said the commission would still pick the governors up “at a convenient time.” Efforts to speak with the spokesperson of the EFCC, Mr. Osita Nwaja, on the matter failed as calls made to his mobile lines were not picked. Also, Mr. Ndu Ughamadu, who was the spokesperson for Yar’Adua before his inauguration, told our correspondent that he had ceased being the spokesperson and was not capable to speak on the matter anymore. Posted by fredlintaz| 02.06.2007 01:19