Continuing with the Ribadu Saga - Part 2

In the initial part of this article, in the light of Ribadu's current travails and the wider implication for the battle against endemic corruption in Nigeria. It is suggested that the Oputa Panel could not be seen as a completion of any sort of process but merely as a template to which a future panel(s) convened or inaugurated may build upon.  I have sought to argue for the use of the model and mechanism of the panel as a modus operandi to address the structural and fundamental problem of Nigeria's corruption.  I also indicated that I would seek to address the question detailed below:

"To explore the need for a more substantive truth commission along the lines of the South African Truth and Reconciliation Commission in order to combat the endemic malaise of corruption and mis-governance in Nigeria"

In the midst of the shenanigans surrounding Nuhu Ribadu I am even more conscious that the trend emerging in Nigeria in its battle against corruption is in a stalemate.  A stalemate between the law enforcement/detection agencies and the ruling classes. Some would even argue with some validity that the EFCC and ICPC at its very best could only scratch the surface of corruption and that most of the high profile convicts have now been released to stride their respective communities like colossuses after their routine applications for bail. The stalemate I highlight is in my view capable of sending our fragile state to an irreversible decline, hampering any hope of development or any agenda for industrialisation.

I have already argued that the Oputa Panel for all its good intentions was unable to call to proper account significant members of the ruling class. The simple reason for this was that there was not an incentive for those classes of people to cooperate with the panel. I think at this stage a useful analysis of the South African context may help us appreciate the premise am trying to construct.

The South African scenario was that it was on the verge of a violent melt down and after much anguish the intellectuals like

Professor Albie Sachs, Kadar Asmal, Dr Alex Boraine, they emerged with the idea of a Truth and Reconciliation but made it novel by offering amnesty to the perpetrators of heinous crimes on the condition that they confessed all. 

The intellectuals provided the basis for the ANC's agreement with the National Party predicated on the decision not to prosecute its political class and suspected collaborators in return for the ceding of power. In other words truth became an outpouring of utility to the old and new political classes. This was the plank upon which South Africa built a new society and escaped the predicted bloodbath at the time.

They also sought to do something remarkable through the process using the Truth and Reconciliation Commission to play the role of the highest cultural role of hero in a general sense of being the "poet" that included both philosopher and scientist as forger of new vocabularies and new narratives that redescribe and thus reconstitute the people of South Africa and the world, rather than that of the traditional role of philosopher as seer into the timeless and necessary truths about the essence of humanity and reality.[1]

The simple question that arises in trying to apply the South African model to Nigeria's war on corruption is what justice would such a process bring?  This of course identifies profoundly difficult questions faced by the fledgling democracy when balancing the possibility of amnesty for crimes committed in support of the previous regimes, with the need to give justice in the form of recognition and respect to the many thousands of victims harmed. 

I am advocating that in addressing some of the issues of concern that such a Truth and Reconciliation model applied to Nigeria needs to enshrined in law for a time defined/limited period and to be granted the power to grant amnesty to individual perpetrators of corruption and other heinous crimes and that such a commission would need to combine quasi-judicial powers with the investigative tasks of truth-seeking body.

I would suggest that for such a body to be effective it would need the powers of subpoena, search and seizure. That the nature of the Commission's hearings be public and provision be made for the institutional hearings and witness protection programmes.

The reality of Nigeria, I dare suggest is that the scale of corruption is so massive, so deep, and very insidious that it would take a generation of investigations and prosecutions if we are to attempt to bring the entire ruling class from the local government councilors/officials to the very top government officials to account.  Furthermore we risk investing so much billions in investigating many for limited political returns.  I see the adoption of a South African model Truth and Reconciliation Commission as a means of using it as a political instrument to heal the fractured Nigerian society and of cause as a cost free mechanism to recover billions. 

The whole modus operandi of what I suggest is that the proposed Truth and Reconciliation Commission should have the power to encourage the ruling class to confess all their corrupt activities and other crimes and restitute a significant part of their ill gotten gains. I suggest the perpetuators after confession should also be compelled to re-route some of their stolen wealth into social economic infrastructures in the respective areas or$ state treasuries they looted under the direction and supervision of an accountable body of some description.

Then offer the incentive that on the basis that their confessions being verified by the Code of Conduct Bureau, EFCC and ICPC, that a full and unconditional pardon be allowed and a clean slate be drawn for the perpetrators.

To many who query whether there is a moral basis for what I am proposing. My response is simple: That I think in one sense it could be argued that there would be, with the idea that truth at least could be preserved.  Essentially the Truth and Reconciliation Commission could be committed to the development of a human rights culture and a respect for the future rule of law in Nigeria.  

In attempting to do this, I believe that there was an irreducible minimum and that is a commitment to truth. As Roberto Canas of El Salvador puts it:  

"Unless a society exposes itself to the truth it can harbour no possibility of reconciliation, reunification and trust. For……settlement to be solid and durable it must be based on truth."[2]

And in drawing from Zalaquett's introduction to the English edition of the Chilean Commission's Report that:[3]

"Although the truth cannot really in itself dispense justice, it does put an end to many a continued injustice -……………..."

In a word, it is important that knowledge of the past is known and shared, but it is equally important that this knowledge, this truth, should be acknowledged by the Nigerian community - if reconciliation is to have any long term chance in what had been a deeply divided society.

And yes I agree to some extent with Kadar Asmal that:

"I therefore say to those who wear legalistic blinkers, who argue that immunity would be an affront to justice, that they simply do not understand the nature of the negotiated revolution that we have lived through, we must deliberately sacrifice the formal trappings of justice, the courts and trials, for an even greater good: Truth. We sacrifice justice for truth so as to consolidate democracy, to close the Chapter of the past and to avoid confrontation."[4] 

What I suggest I believe would lay the basis for Nigeria as a nation coming to terms with its corrupted and fractured past and moving forward.

The concluding part would attempt to detail how confronting the truth would set Nigeria free on the path to greatness and also highlight the parallels and points of difference between Nigeria's context and South Africa's.  

May our intellectuals, commentators, journalists and masses emerge with many more ways in which we can all more confidently speak truth to power.

  

The writer is a Barrister and Solicitor of the Supreme Court of Nigeria and author of yet unpublished 'Speaking Truth to Power: Albie Sachs and the work of South African Truth and Reconciliation Commission'.


[1] Rorty, Richard (1989)., Contingency, Iron, and Solidarity Cambridge: Cambridge University Press. p. 101.

[2] Boraine, Alex (1996). "Justice in Cataclysm: Criminal Tribunals in the wake of mass violence:  alternatives and adjuncts to criminal prosecutions". http://www.truth.org.za/reading/speech01.htm [Accessed 23rd October 2005]. 

[3] Zalaquett, Jose. "Balancing Ethical Imperatives and Political Constraints: The Dilemma of New Democracies Confronting Past Human Rights Violations." Hastings Law Journal. Volume 43, No. 6 (1992). 

[4] Asmal, Kadar (1995)., Hansard 1995: pp. 1382 –3 Act No.34 of 1995: Promotion of National Unity and Reconciliation Act 1995.