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”.

From the word go, I need to point out that 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, suborning and blackmailing 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 amounts 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? Apart from the Alamieyeseigha case, I know that the most readily touted case of EFCC success is that of Tafa Balogun, but the more I consider the details of that case the more I’m convinced it’s not worth celebrating. Balogun’s travails had less to do with an anti-corruption drive than him falling out of favour with ‘Baba’ and Ribadu who happened to be his subordinate in the police. This was the same Balogun that was the arrowhead of the 419 elections that returned Obasanjo/Atiku for a second term. Indeed, while The News magazine was detailing Balogun’s crimes, they were roundly ignored, in fact hounded, because then he remained in favour. But as soon as he fell out of favour, they were all over him like a bad suit! Even in that, it had to be a farce! In the end, after humiliating him, he was only jailed for 6 months for stealing 17.7 billion naira (by their own limited account)! And just so we can be clear about this, he wasn’t jailed for corruption! He was jailed only for refusing to give information in line with Section 38(2)(b) of the Economic and Financial Crimes Commission Act of 2004! The so-called companies criminally involved with him were not linked, charged or investigated, even as some lawyer from the floor of the court simply entered a plea of “guilty” in an absurd case of abuse of the court process! For the record, the main case of corruption which the EFCC vowed to pursue separately at the Abuja High Court has been deliberately ‘killed’ as part of its cover-up. The first time it came up last year was a public holiday and the second time it came up, the court was asked to adjourn on the basis of a medical report purportedly explaining the absence of Balogun. Even the judge was flabbergasted by the fact that the medical report was issued three weeks or so before the court date. He was even more shocked when the EFCC refused to question the medical report or oppose the application for adjournment!

Again, for those who champion EFCC or Ribadu’s cause, a piece of news sometime ago ought to alarm them. In the heat of the corruption accusations and counteraccusations between Atiku and Obasanjo, we read that the president set up a committee to explore settlement with the vice-president, comprising Nasir el-Rufai and Nuhu Ribadu amongst others. The settlement was reported to have failed on the grounds that Obasanjo wanted an assurance from Atiku that he wouldn’t be contesting the 2007 presidential election in exchange for an ‘amnesty’ from the supposed indictment of the Bayo Ojo administrative panel (which itself has been declared an illegality by the courts, as only the National Assembly has the power to conduct such an investigation). Ribadu and Nasir el-Rufai were reported to have made Obasanjo’s case. Now, examine the implication of that. The anti-corruption czar had no qualms being the agent of a potentially corrupt president in an affair aimed at covering up corruption at the highest level of government! Now, shouldn’t Ribadu have been more interested in inviting or visiting the president and vice-president for a chat over the accusations and counteraccusations? Obviously, Olorunyomi sees no problem or double standard in the fact that his Commission is hell-bent on nailing Atiku while ignoring all the publicly available evidence that shows that Obasanjo is equally culpable over the same matter.

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. Article 10 of the Universal Declaration of Human Rights makes this clear when it states: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”. Article 14 of the International Covenant on Civil and Political Rights (ICCPR) also has a similar provision. Though Article 7 of the African Charter on Human and Peoples’ Rights does not specifically mention the rule of fair hearing (only trial guarantees), the African Commission on Human and Peoples’ Rights has held that Article 60 empowers it to “to draw inspiration from international law on human and peoples’ rights and to take into consideration as subsidiary measures other general or special international conventions, customs generally accepted as law, general principles of law recognized by the African States as well as legal precedents and doctrine”. Just like every other civilized nation, Nigeria is signatory to all these international conventions and like them we have this notion of fair hearing specifically 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. The Constitution rightly describes this as a fundamental right, which means it is immutable, non-negotiable and in line with international and universal laws. The right to a fair hearing is premised on some components. Section 36(1) requires that such a hearing be conducted “within a reasonable time” and for such a court or tribunal to be “constituted in such a manner as to secure independence and impartiality”. Section 36(2)(a) “provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person”, while Section 36(2)(b) requires that any law setting up such administrative authority “contains no provision making the determination of the administering authority final and conclusive”. Section 36(3) requires such a hearing to be held in public; Section 36(4) reiterates the entitlement of the person charged to “a fair hearing in public within a reasonable time” and Section 36(5) affirms the universal principle of presumption of innocence until found guilty.

Now, I’m aware that there are commentators who feel that the above section contradicts Sections 66, 107, 137 and 182, all of which make provisions for disqualification of a candidate for election where “he has been indicted for embezzlement or fraud by Judicial Commission of Inquiry or an Administrative Panel of Inquiry or a Tribunal set up under the Tribunals of Inquiry Act, a Tribunals of Inquiry Law or any other law by the Federal or State Government which indictment has been accepted by the Federal or State Governments respectively”. But what they’re missing out is that these sections presuppose a condition precedent before any of them can apply. In other words, no one can suffer disqualification if the so-called indictment is deficient in law. Except such indictment passes the test of the rule of fair hearing as enunciated in Section 36, it shall be of no effect as the courts are bound to set it aside. In law, an indictment is not a mere accusation of a crime. It is a formal accusation that has been well investigated and dealt with by a competent authority (be it a tribunal or administrative panel), observing all rules of natural justice, including the right to a fair hearing for the accused, before reaching a determination that such an accused is liable for the crime he’s so accused. An indictment can be the basis of prosecution or criminal proceedings in a court of law. Obviously, the EFCC is not a judicial body, but as an enforcement arm of the executive branch of government charged with investigating and prosecuting crimes, it is bound by the provisions of Section 36(2)(a) to allow accused persons to make representations to it (as far as their rights and obligations are affected) before it takes a decision to publish their names publicly as criminals.

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.

The Media And the EFCC List (By Dapo Olorunyomi)

This Day ( Lagos )

February 21, 2007

Combating corruption is one enterprise that requires as much practical action as ethical preachments, but preachment alone will certainly not do the job. That is the light in which one ought to see the recent EFCC advisory to the political parties. There would be little point to the existence of anti-corruption agencies if persons against whom integrity issues exist should simply have those blemishes cleansed and sanctified by becoming candidates for political office. Should indictees be allowed to run for office, and, in some cases, secure immunity for themselves? Although most of the political parties chose to politicize the matter (not surprisingly), the fact is that the EFCC has made an important contribution to improving the integrity quotient in public life.

Much of the controversy around the EFCC advisory therefore 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.

Given the decades of impunity public officers have enjoyed, and the moral distortions that have blurred their perceptions of propriety, the good health of society should compel a most robust attitude to politicians. And what better way to advance the regeneration of positive values than to raise the barriers to entry into public life by making previous misconduct a disqualification? It is surely a poor defence to argue that you belong to a party opposed to the ruling party, or an unfavoured faction of the party in power. Most citizens 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 lot. That is the response civility requires.

Thus, those who argue that President Obasanjo's recent insertion of the EFCC into his comments at Abeokuta and Akure amounts to compromising the independence of the agency, have either willfully opted for amnesia regarding the track records of the EFCC; or they are simply caught by the bug of mischief in an electoral season. In both respect, it brings no honour to the argument of the EFCC critics.

It is worthy of note that the hysteria against the EFCC arose only after it became clear that the commission would not stop at caging 419 scum and other fraudsters. Politicians and public office holders beheld a juggernaut capable of calling them to account, and they have responded with a sustained campaign to denude the EFCC of all credibility. They have been assisted in this quest by sections of the media, a section of which, lacking a strategic sense of how the media can build the ethical fibre of society, have taken up the queer crusade of seeking to destroy the very moral foundations of the Commission. But there cannot be one set of laws for politicians, and another for other citizens.

There is nothing surprising in the attitude of people who have been socialized to regard politics as the route to legitimate thievery. But there is a lot to deplore in the disposition of those sections of the media that wish to mollycoddle the corrupt. Media people have a special obligation both to rigour and to an understanding of the issues on which they report and comment. To be sure, some editors and reporters failed to observe this duty of care. It is tragic, for instance, to argue that certain politicians should have been omitted from the advisory because they had not previously held public office. Should we understand those who made this specious argument as wanting us to accept that misdemeanours in private business cannot disqualify one from public office? The EFCC advisory included names of persons seeking public office in 2007, be they veterans or neophytes in public office. Why should such a distinction escape some respected journalists?

The shibboleth of selectivity has also crept back into commentary. This is a self-defeating platform. No state has yet managed to catch all felons in one punitive net. States have even cut deals with some criminals in order to get at their more dangerous confederates. To attack the integrity of law-enforcement efforts on the grounds that they have not ensnared all criminals is hardly a defence of those caught. The media have a duty to point the appropriate authorities to criminals who might escape scrutiny. Yet that is a different matter from pretending that there is no case against those that have been caught. Indeed, the argument is valid that some of what the EFCC does today in its anti-graft war ought to be properly located in the daily workings of a thoughtful, active and responsive media. Isn't that the claims and province of investigative reporting? And it wasn't too long ago that we used to celebrate this type of practice in this land or was it?

It was amusing to see Orji Uzor Kalu unsuccessfully labour on BBC Hardtalk to transform selectivity into a defence of the accused. Throughout that interview, Kalu took responsibility for nothing, not even the dirty streets of Aba and the abject state of governance in Abia State . He would not even commit to cooperating with the EFCC, whose attempt to arrest his mum he says he thwarted because the operative came at night. Until then, how many Nigerians can smear to know that wanted persons could choose the time of their arrest?

When did matters get this bad? So putrefying have sections of our media now become that the very institution which ought to provide illumination regarding concepts, practices and alternatives in policy framework have settled to tail issues? When editorialists at newspapers that claim flagship of the industry make tendentious comments like ?it is worrying that the EFCC is apparently being used for purposes outside the laws of the land?, the response will be that the media cannot dramatically conjure a fiction into reality by the simple act of desire. Politicians may be adept at the art of brazen duplicity but even a co-opted the media should be the last at substituting wishes for reality.

In this same country; in the very Lagos that is home of Nigeria's active media, a sitting judge (Justice Inumidu Akande) granted a perpetual injunction restraining a law enforcement agency - and in the process grant immunity to a private citizen (Otunba Fasawe) from investigation and prosecution - yet that does not seem to alarm the media of this massive challenge to our legal order. That same court eerily commented on issues outside the reliefs sought by the applicant in a classic judicial father christmas fashion, but did the media see this as a problem?

Our media represent an honourable treasure and a pillar to our democracy but its degeneration to flippancy will cause greater hurt to the polity than a law enforcement agency that propagandists against probity tag as 'apparently loyal to the presidency'. The real tragedy, of course, will be for practitioners in the media to miss or ignore this truth.

This is the same clime where political office holders allege humiliation by their superiors but don't dare resign in protest. It would seem that the lure of office trumps all things, including personal dignity and integrity. In this outbreak of shamelessness, we have seen every presidential aspirant express support for preserving the EFCC, but their attitude to the commission's practical work gives the lie to their claim.

Thus, the media should resist the resurgence of the ideology that getting power, and keeping it, is all that matters. Babangida and Abacha believed too fervently in this creed, and we are still reeling from their abortion of our national dreams. This is no time for jitters, for bowing to robbers who don't believe in the rule of law but are happy to use the courts as shields from scrutiny. The media should remain on the side of truth, justice and the possibility for national renewal. It should be a matter of national consensus that highwaymen be kept out of the political process. When Nigerians go to the polls, they should be choosing between candidates of integrity. That would be a giant step forward, and the media would have done this country well to help make this possible.

Olorunyomi is the Chief of Staff of the Economic and Financial Crimes Commission (EFCC)
 

Robot  # 1 | 07.03.2007 06:35

I read Dapo Olorunyomi’s defence of the EFCC list on the back page of the Wednesday, Februar...Read the full article.