The Unending Culture of Impunity

Femi Falana
A Senior Advocate of Nigeria, Falana is a 
pro-democracy and human rights activist. He is an alumnus of University of Ife (now Obafemi Awolowo University).

Upon assumption of office on May 29, 2015 President Muhammadu Buhari Administration promised to fight corruption and impunity, respect the human rights of all persons and operate under the rule of law. But in spite of such avowed commitment, the Police, the armed forces and the other security agencies have continued to infringe on the fundamental rights of the Nigerian people.

The extra-judicial execution of criminal suspects by the police and the unlawful killing of unarmed civilians including women and children by security forces have been on the ascendancy. At the judicial commission of enquiry set up by the Kaduna State government to probe the clash which occurred between the army and the members of the Islamic Movement in Nigeria last December it was disclosed that 347 people were killed by the army and that their bodies were secretly buried in a mass grave.

Notwithstanding that the Constitution has recognised the right of Nigerian citizens to freedom of expression and peaceful assembly the police force has violently attacked peaceful protests by aggrieved groups. Aside disobedience of court orders the government has engaged in the illegal detention of citizens without trial. Out of 52,000 prison inmates, only 12,000 have been convicted while others are awaiting trial. The bail granted to the immediate past National Security Adviser, Sambo Dasuki, who is standing trial for money laundering and criminal diversion of public funds has been disregarded by the Directorate of State Security (DSS). Similarly, leader of the Islamic Movement in Nigeria, Sheikh Ibraheem Zakzaky, and his wife have also been detained by the DSS for over six months without trial.

In several parts of the country, violent clashes between herdsmen and farmers have resulted in mass killings. For instance, in Benue and Taraba states not less than 500 farmers were recently killed by armed herdsmen due to negligence on the part of security forces. In Enugu state over 40 people were killed during a similar clash. While the government has consistently condemned killing of innocent people by terrorist attacks in foreign countries it has been silent or slow in reacting to the unlawful killing of unarmed civilians in Nigeria.

However, having confirmed that the funds earmarked for procurement of arms and armament were diverted by a coterie of military officers the government decided to reinstate 3,000 soldiers who were dismissed by the former military authorities for demanding to fight the terrorists. The government also reviewed the plight of the 70 soldiers who were charged with mutiny, tried and convicted and sentenced to death by military courts for the same reason. At the end of the review, 66 out of the 70 condemned convicts had their death sentences commuted to 10 years imprisonment. But the case ought to be further looked into with a view to granting pardon to all the convicted members of the armed forces in questionable circumstances.

While the federal government deserves commendation for the success recorded so far in prosecuting the war on terror, the failure to sanction the army officers and soldiers who engage in the unlawful killing of innocent people in the north east region has been condemned by local and international human rights organizations. Local and international human rights bodies have condemned such human rights abuse. Owing to alleged refusal of the government to punish the culprits the ‘New York Times’ has asked the United States’ Congress not to approve the sale of war planes to Nigeria to prosecute the war on terror.

As corruption fights back

Last November, President Buhari removed Ibrahim Lamorde, the chairman of the Economic and Financial Crimes Commission (EFCC), and replaced him with Ibrahim Magu. Apart from the change in the EFCC leadership, the government appointed a presidential advisory council on corruption headed by Professor Itse Sagay (SAN). A presidential panel was also inaugurated to investigate the diversion of billions of dollars earmarked to procure military hardware from 2007-2015. Following the earthshaking revelations of the theft of huge sums of money by military officers and politicians, there has been a wave of arrests of many alleged looters of the treasury by the EFCC.

The EFCC and the other anti graft agencies have not been restructured and repositioned to fight corruption in a sustained and consistent manner. With no clear cut direction the anti graft agencies have been accused of watching the “body language” of President Buhari in prosecuting the renewed war against corruption and other economic and financial crimes. Although there has been allegations of selectivity in the prosecution of the war against corruption there has been no evidence of official interference in the work of the anti graft agencies.

Through the operation of the Treasury Single Account (TSA) into which all revenues accruable to the federal government are paid the federal government has saved about N3 trillion. The illegal collection of the salaries and allowances of 36,000 ghost workers in the federal public service by an illegal syndicate has been stopped. The introduction of BVN has stopped the operation of secret bank accounts by public officers. No doubt, the administration has recorded some success in the recovery efforts. The EFCC has so far recovered the sum of $3.2 billion and over N30 billion which has been paid into a special dedicated account in the Central Bank.

The government has ordered an audit of the payroll of the entire armed forces following the disclosure in a criminal trial that a particular military officer was stealing N558 million from the salary account of the Nigerian Air Force on a monthly basis. The military authorities inquired into the role of the military officers and soldiers who were used by politicians to perpetrate electoral malfeasance in Ekiti and Osun states during the governorship elections in 2014. Those who were indicted by the investigation panel have been flushed out of the Nigerian army and recommended for prosecution by the EFCC.

After the presentation of the 2016 budget by President Buhari, it was discovered by the Senate that the document had been altered. The allegation was investigated and confirmed by the government which has promised to sanction the cabal of civil servants who padded the budget. In addition to indicted retired and serving military officers and politicians who were arrested for alleged looting of the treasury, bank executives have been asked to account the millions of dollars deposited in “secret accounts” from where humongous sums of money were withdrawn and disbursed to politicians to campaign for the re-election of President Jonathan during the 2015 general elections.

The governments of the United Kingdom, United States, the United Arab Emirates and Switzerland have promised to lend a helping hand in the recovery efforts of the Buhari administration. But when the British Prime Minister, Mr. David Cameron, recently described Nigeria as a “fantastically corrupt” nation, President Buhari reacted by asking the British government to ensure the recovery and repatriation of Nigeria’s looted wealth warehoused in the United Kingdom.

However, the ICPC has over 400 corruption cases pending in the various courts. Some of those cases were filed in the courts as far back as 2001! Thousands of others relating to economic and financial crimes are being prosecuted in the various courts and tribunals by the Economic and Financial Crimes Commission, National Drug Law Enforcement Agency, Code of Conduct Bureau, Nigeria Police Force etc. Some judges have specialised in granting interlocutory or perpetual injunctions to restrain the anti graft agencies and the police from arresting, investigating and prosecuting politically exposed persons.

According to the Minister of Information, Mr. Lai Mohammed, about 55 ex-public officers standing trial for allegedly stealing N1.3 trillion have had their cases subjected to interminable delay. The trial of such politically exposed persons which commenced in 2007 has not been concluded till now. Apart from two of the ex-governors who opted for plea bargain and were convicted the cases of others have been stalled through preliminary objections and stay of proceedings filed by the defendants and lavishly granted by either the trial or appellate courts. In frustration President Buhari recently expressed displeasure over what he perceived as the negative role of the courts in the prosecution of corruption cases.

Even though there are shortcomings in the criminal justice system the courts appear to have risen to the challenge of the moment. In the last one year. The EFCC has concluded about 160 economic and financial cases and secured the conviction of a commissioner in Adamawa state, local government chairman and councillors in Kogi state and a former Director-General of the NIMASA. Following the dismissal by the Supreme Court of the appeals filed by ex-governors Joshua Dariye and Orji Kalu, their trial suspended since 2007 have commenced.

Since the Administration of Criminal Justice Act, 2015 is a federal enactment it is not applicable in the state courts. To that extent, the trial of the majority of corruption cases which are pending in the state high courts is being conducted under antiquated criminal procedure laws. With the ongoing investigations into serious allegations of massive corruption in the office of the NSA, NNPC, CBN, NIMASA, NPA etc it is clear that the regular courts cannot cope with the trial of the many suspects that are likely to be indicted and recommended for prosecution. There has therefore arisen the urgent need to set up a special court to try economic and financial crimes.

The proposed court should be manned by carefully selected judges of proven integrity. Each corruption case should be heard and concluded by the trial court within 120 days. All appeals arising from the decisions of the anti corruption court should be heard and determined within 60 days by either the Court of Appeal or the Supreme Court. Furthermore, the of Conduct Tribunal and the Security and Exchange Tribunal should equally be reorganised to discharge their statutory duties of promoting ethical values in the public service and sanity in the capital market respectively.

No doubt, the Nigerian people are in support of the renewed fight against corruption and impunity in the country. Regrettably, the federal government is yet to appreciate that the anti corruption battle cannot be won through the regular courts. In spite of the overwhelming evidence of large scale looting the anti graft agencies the federal government is not in firm grip control of the war against corruption. Owing to lack of coordination in the trial of politically exposed persons corruption is fighting back. Painfully, the federal government is on the defensive as it has failed to counter the deliberate manipulation of the criminal justice system by the indicted looters of the public treasury.

At the end of the day, the success of the anti corruption policy will not be measured by the number of investigations conducted by the anti graft agencies. If the status quo remains the Nigerian people and the international community will blame the administration for its inability to secure the conviction of corrupt politically exposed persons. There is no doubt that official corruption has continued to arrest the development of the country. This is not unexpected given the nature of the country’s neo-colonial and predatory capitalist economy compounded by impunity on the part of the ruling class.

Therefore, to succeed in the fight the government has to ensure that the economy is managed in the interest of the people. The Buhari Administration should ensure that the stolen wealth of the nation is recovered and invested in promoting the welfare of the people. For the fight to succeed the government has to strengthen the anti graft agencies, fund them and guarantee their autonomy. So far, corruption has been able to fight back because the people have been reduced to onlookers in the fight against corruption. To reverse the trend the government should sensitise and mobilise the people to take over the fight against the menace.