Renowned law scholar, Professor Ben Nwabueze, in this interview with LEKE BAIYEWU, bares his mind on President Muhammadu Buhari’s anti-corruption crusade and probes
With what you have seen pertaining to government officials and public funds, do you think it should be called stealing and not corruption, as former President Goodluck Jonathan once posited?
We must not allow ourselves to be hamstrung by legal technicalities. Stealing is a form of corruption and it is more blatant because corruption has some kind of restraints. The corruption that we have in Nigeria goes beyond that of 10 per cent or 20 per cent inflation of contracts or things like that. When one goes straight into the treasury and takes money; that is stealing. But it is also corruption; it is a form of corruption. It is what I call the buccaneering form of corruption. The buccaneering, again, is a manifestation of impunity. It is lawlessness. When corruption assumes that form of impunity and buccaneering – the form of going straight to the coffers of the state and plundering it – it is stealing. I will like to draw a hard and fast line between corruption and stealing: stealing is a more terrible aspect of corruption.Do you see corruption as the biggest challenge the country is facing now?
It is the second biggest.
What is the biggest?
The first is the crisis arising from the religious divide. That is the first and the most terrible. After that comes corruption. All other things are subsidiaries. There are the ideologies based on Nigerian constitution which are favoured by Christianity. There are also ideologies about governance, which are based on the Sharia or Islamic Law, which favour theocracy and other forms of dictatorial rule. There is the Caliphate system; and also the Sultanate system; these are dictatorial forms of government, all favoured by Islam. Among the major things we are fighting today, corruption is there, but this country will survive or not according to as we are able to settle and solve this crisis. We are in the midst of a big crisis in this country.
Many people do not realise it; Boko Haram is a manifestation of the crisis. They (insurgents) have always stressed this conflict of ideology about governance and liberal democracy (which are) favoured by Christianity, and theocracy and other dictatorial forms (which are) favoured by Sharia and Islam. When one looks at the key tenets of Islam, one will begin to appreciate the conflict. Where do we go? There are adherents of Islam or Islamism, which is slightly different from Muslim religion. Not all Muslims are Islamists. Some are fundamentalists; some are die-hard Islamists who believe in the method of the Jihad as a way to implement the Sharia. Boko Haram shows one the seriousness of this.
When one looks at the destruction and the devastation perpetrated by Boko Haram insurgents or terrorists of an Islamic sect, one will see that they want to overrun and take over parts of the North-East not for the sake of it; not for the pleasure but to implement the Sharia. They (Boko Haram) are a local arm of international terrorists’ movement aimed at implementing the Sharia – ISIS and al-Qaeda. Boko Haram is only a local arm. How does our government stand in relation to this? This is the big question.
Considering President Muhammadu Buhari’s anti-corruption personality and that of those close to him, do you see his anti-graft crusade becoming successful?
It is a difficult question – very difficult. He (Buhari) has many restraints; he has many constraints. He is not a free agent. Whatever may be his personal characteristics, he is not a free agent. He was chosen as the APC’s (All Progressives Congress’) presidential candidate at the primary for a purpose; to try to implement an agenda. I won’t go any further. His ability, his capacity to fight corruption decisively is constrained and restrained by some factors, mostly religious.
You said President Buhari’s corruption probes should not be limited to Jonathan’s administration. From where should he start, from independence in 1960 or 1999 when democracy returned?
The answer is based on realities of the situation. He should know what is realistic and what is possible. Going back to 1960; what are you going to probe? The First Republic; is it realistic? Will he probe the military era: starting from (Aguiyi) Ironsi who was there for only a couple of months? Is it the (Yakubu) Gowon era that lasted for a few years, what do you gain from that? There was corruption but was it corruption of the magnitude and enormity that threatened to kill Nigeria? We are looking for corruption of that magnitude, which must be eradicated if Nigeria is to survive. I don’t think that took place during the Gowon (era). If you move from Gowon to his (Buhari’s) military rule, which lasted for some months, there was corruption but was it of that magnitude? Was it of that enormity that threatened to strangulate Nigeria? My answer will be no; there was corruption but it was not of great magnitude.
When you move from there to the IBB (Ibrahim Badamasi Babangida) era, can anybody really dispute that the corruption that took place during that era was of the magnitude and enormity that threatened the existence of Nigeria? Nobody can dispute that. So, that answers your question; that you must probe that one. You must probe it, if you really want to achieve the purpose of a probe, which is to eradicate corruption. Insincerity is why all the efforts in the past have failed. There were not genuine efforts. They were not aimed at eradicating corruption. One cannot eradicate corruption when one doesn’t go deep. One needs to probe the head downwards.
Also, selective probes must be avoided. All the corruption probes that we have had were all selective and vendetta aimed at demonising individuals. That was what (former President Olusegun) Obasanjo did. His enemies or his perceived opponents were the ones he dealt with. The ‘Obasanjo boys’ were given immunity from probe – nobody touched them even though they were as corrupt as the others that he dealt with – (Diepriye) Alamieyeseigha, (Joshua) Dariye and those in the (South)West – illegally and unconstitutionally. He took them and threw them out of office in the name of fighting corruption. That was selective and it achieved nothing. We must maintain justice in this matter. One must avoid selective probe, vendetta and the impression that one is trying to create and transform individuals into demons.
Is this why the Igbo Leaders of Thought which you lead recently urged President Muhammadu Buhari to extend his corruption probes beyond the last administration?
We want and insist on probing for two main reasons: The first reason is the purpose or end intended to be achieved by probing corruption. We want probe and insist on it not for the sake or fun of it; we want and insist on probe as a means of stopping or eradicating corruption which, apart from religious divide, is the foremost factor strangulating the country. Probing just the (Goodluck) Jonathan administration, when there are other past administrations equally or nearly as corrupt as his, will not stop or eradicate corruption. It will not, therefore, achieve the purpose or end for which a probe is wanted; it will not even add much to the attainment of that purpose.
How do you mean?
Probing the Jonathan administration alone, when there are other past administrations equally or nearly as corrupt as his, is not right, proper or justified for various reasons. One, it is selective, and selective probe has the appearance of a vendetta aimed mainly at denigrating or demonising individuals. It discredits the exercise and deprives it of public confidence. The people must be made to believe in the genuineness and sincerity of the exercise, if they are to give up the entrenched and rampant culture or habit of corruption. This is the factor that robbed the so-called war against corruption under the (Olusegun) Obasanjo administration of all credibility and effectiveness.
Two, selective probe is unfair and unjust. It is contrary to the Constitution of Nigeria, which ordains in section 17(1) that “the state social order is founded on the ideals of freedom, equality and justice”. This is the principle that must inform all actions of government. It offends against justice to probe the Jonathan administration and not other past administrations equally or nearly as corrupt as his.
Three, probing the Jonathan administration alone is not justified by the reason that there is massive and readily available evidence of corruption committed during that administration. No evidence of corruption is more visible and concrete than palatial houses built by past rulers, multi-billion projects like a university, a library, a mechanised farm, etc. A probe will ferret out hidden evidence, which is available in various places.
Another reason why a probe is necessary and demanded is that eradication of corruption will enable Nigeria to make a new beginning, which is an imperative necessity, if the slide to state failure is to be halted. Nigeria needs a new beginning; a clean slate untarnished by the prevailing rottenness due to rampant corruption. A new beginning requires or implies a social and ethical revolution. This is a vital part of the change desired by Nigerians, and which the new All Progressives Congress government under President Muhammadu Buhari is supposed to usher in.
Is it not a new beginning in Nigeria to see a President deciding to probe his predecessor?
A new beginning cannot be launched, nor can corruption be eradicated by probing just the Jonathan administration. It requires more radical action. Jerry Rawlings launched Ghana on a new beginning by the public execution of some past rulers. I do not approve of his method but the Ghanaian example does suggest that the matter requires very radical action. Until very radical and drastic action is taken to stop corruption, Nigeria cannot make a new beginning. Probing the Jonathan administration alone cannot stop corruption or even have effective impact on it, and cannot therefore start Nigeria on new beginning.
There is a third factor to be noted: Probing other past administrations is not a distraction, as the Presidency says. A distraction from what, one may ask? Apart from the destructive and devastating crisis arising from the religious divide, nothing else is more important and creates a more imperative necessity for change than the eradication of corruption.
Are there no constraints in probing administrations long gone?
President Buhari probing past administrations other than Jonathan’s is constrained by two main factors: One, perhaps more powerful and influential is a group known as “the invisible government of Nigeria”, whose existence and activities with respect to governance in Nigeria, are not known to many people because it operates stealthily. Hence, it is called “the invisible government”. They, together with other reactionary oligarchic elements, opposed to democratic rule, manipulate governmental affairs, unseen from behind the scene.
Nigeria must be one of the few democracies in the world, outside Africa, where retired military officers, with oligarchic outlook and interest, wield such great influence in government as well as in the political process after transition to democratic rule. This clearly augurs ill for democracy in the country. The country deserves to be left alone to pursue its experimentation with constitutional democracy free from the retarding influence of retired military men.
This group, led by former military President, Ibrahim Babangida, and former Head of the Federal Military Government, Gen. Abdulsalam Abubakar, had declared support for Gen. Buhari in the March 2015 presidential election, as reported in the Vanguard Newspaper of Tuesday, January 20, 2015. Their rank and influence have been augmented by former President Olusegun Obasanjo, self-proclaimed father of the Peoples Democratic Party and originator of godfatherism in Nigeria, who has now left the party after declaring and vowing that it will rule the country in perpetuity. We will be demanding too much of President Buhari to expect him to probe the administrations of these three past rulers.
The other factor comes from a group of die-hard Islamists determined to impose Islamic (Sharia) system of government on Nigeria – a theocracy, such as the caliphate and sultanate systems and other dictatorial forms – and to whom a new beginning for Nigeria and the liberal democracy it implies is anathema.
We will wait and see how President Buhari can overcome these constraints on his powers, and betray the sponsors of his election to the presidency.
Obasanjo set up the Economic and Financial Crimes Commission and the Independent Corrupt Practices and other Related Offences Commission for his anti-graft war. Was the rate of corruption under his administration of the magnitude that Buhari should probe too?
Oh, yes! That is what I am talking about. Obasanjo probed and dealt with only his opponents. His ‘boys’ and himself were not dealt with – himself in particular. The late Gani Fawehinmi went to court, asking the court to rule that his immunity should not prevent his probe. He wanted the court to order a probe of his university and his presidential library – the billions sunk into it; his surrogates who contributed millions. They were not contributing because of their love for Obasanjo; they were contributing for what he did for them as the president; to compensate him for what he did for them or what they were hoping he would do for them. So, the probes by Obasanjo were vendetta limited to his opponents. He, himself, was not probed. Any attempt to probe him was killed. Gani was the only man who stood up and insisted; he went to court. But Obasanjo stopped the proceeding by pleading immunity; it was that same immunity that he sidelined to probe Dariye, Alamieyeseigha and others. The (court) action was killed and Gani subsequently died.
Do you think the country has laws strong enough to prosecute corruption cases or is it the implementation of the laws that is faulty?
I think we have the laws. When you read the EFCC Act – most of it of course it unconstitutional because it goes beyond the powers of the Federal Government – you will see that the powers of the EFCC are enormous. When you read that law – I have read it several times – the ordinary man will not appreciate the extent of the powers given to the EFCC. The police, as a force, are subordinating to the EFCC. When it is financial crime, it is the EFCC; the police come under the EFCC. Part of the powers, as I said, is unconstitutional but it is there. It is not the question of the powers; it is the question of selective implementation. (Nuhu) Ribadu, when he was the head (Chairman) of the EFCC, really prostituted the whole system – the whole (anti-graft) war. He used it (the system) on the directive of Obasanjo as a vendetta. If you read what he did – oh goodness! It is all part of the probes he (Buhari) should try to expose.
The same Ribadu came back to contest election for the president of Nigeria. I was the lawyer for Dariye and I read all he did with his master, Obasanjo. You will not believe what he did. All was vendetta; it added nothing to the war against corruption. Nothing! It is not the law. I think we have enough laws. It is just the implementation.
Do you think plea bargaining should remain an option for thieves of public funds?
This is again a very controversial issue. Plea bargaining is a very controversial issue. If one is looking for N10 billion stolen by way of corruption and one is finding it difficult to recover; and the litigation of recovery, including getting the support of the government of the country where the money was transferred to is also difficult, one can tell the culprit to cough out eight out of the 10. It is a difficult decision to take. We can never be unanimous in opinion on this. It is a controversial issue. Some people will say ‘let us take the eight that we can recover and forget about the two because it may go on for decades to recover and we may not br able to do so’.
The difficult thing is that all the monies are not in Nigeria, where a law can be made to confiscate them. No. Most of the monies we are talking about are outside Nigeria under the care and control of other governments in the world. I think it is a very difficult decision to take and I will not condemn the plea bargaining approach completely. I will say that if one has considered all the circumstances and it is near impossible to recover (the loot), and the culprit himself says ‘okay, I will help you with eight, let me go’. One should take it. People will not know what is going on. But if one takes the eight, where is the eight? Not all the eight is back in the coffers of the country. Much of it again is stolen by those charged with the responsibility of recovering it. That is what is going on; go and investigate it. You will find that during the plea bargaining, you have eight on paper; what eventually reaches the coffers of Nigeria is maybe about 60 to 70 per cent (of it). The rest goes into the corruption coffers and corrupt pockets of individuals.
Many people believe the judiciary has been compromised when it comes to prosecuting corruption cases, with the example of a former Governor of Delta State, James Ibori. Do you think this arm of government is up to the task in this regard?
I will give you a straight answer and I will prefer not to go into details because I have no evidence for judicial corruption. It is a fact; judicial corruption is a fact but it is difficult to prove. It is a fact that the judiciary in this country has compromised itself in this matter of corruption. There is no denying the fact. I don’t want to say more on this. I don’t have the evidence but it is there.
A former Attorney General of the Federation and Judge of the World Court, The Hague, Justice Bola Ajibola, once posited that judges found culpable of judicial corrupt or found to have colluded with corruption suspects during trials should also be prosecuted. Is this possible?
Yes, why not? But it is the evidence to prove. Who will come and prove that the judge was compromised? The judge is entitled, like any other human being, to commit errors of law. But you have the right to say ‘no, this is not the law. You have not applied the law correctly’. It is neither here nor there. The truth is that it goes on. Judicial corruption is there. And it goes on. And how do you prove it? If anyone is found, as Bola Ajibola said, and there is evidence (against him or her), then the judge should be prosecuted. Why not?
One of the arguments raised is that some of the judges are super rich, which obviously shows that their wealth is far more than what they earn as a judge.
But do you go by that alone? And that is what we are saying about some past political rulers who have built palaces, like IBB, like Obasanjo who has established a university worth billions and library worth billions. This is evidence – concrete evidence – you can use say ‘come and tell us how you got this. You couldn’t have gotten this from your salary and remuneration as President. No way!’ In the case of past political rulers, the evidence is more visible – more concrete – than the case of judges. I don’t know if there are many judges with that kind of visible and concrete demonstration of corruption. There are not any. They are probably more discreet or the money involved is not such that can enable them to do that kind of thing (flamboyance). But if you can prove it, then, judges should be as liable to prosecution like any other culprit.
BY LEKE BAIYEWU, PUNCH
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Words of wisdom and well tailored position from my erudite jurist…..Any probe that concentrates only on Ex-President jonathan regime,is tantamount to witch-hunt and would definitely not pass through the periscope of moral justice cum equity.