Anti-Graft War: The China Example

The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

China, Corruption and the Death Sentence 

The former Chairman of the Bank of China, Liu Liange, was recently sentenced to death with a two-year reprieve, having been found guilty by a Shandong Province Court of accepting $16.8 million in bribes, and issuing illegal loans to unqualified companies causing a loss of about $27 million. He was found guilty of abusing his position at the Export-Import Bank of China and Bank of China. He was also stripped of all his properties and illegal earnings. The two-year reprieve means that he will be executed, only if he commits another crime within the two-year time period; if he gets the reprieve, the death sentence will be commuted to life imprisonment. In January 2021, Lai Xiaomin, the Chairman of the Huarong Asset Management Company, China, was executed, having been found guilty of bribery and corruption to the tune of about $277 million (apparently the largest amount in a corruption case in decades) and bigamy. Like Liange, his political rights were also rescinded. China takes its anti-graft war very seriously.

And, while I agree that the death sentence is not a 100% deterrent against bribery and corruption even in China, corruption appears to be much less pervasive there! Meaning that the death sentence is a fairly effective deterrent against corruption. Sometimes, a particular punishment may work better on certain categories of people. My point? An armed robber for instance, who is unable to feed, may have felt constrained to go into a life of crime to survive. Therefore, he/she couldn’t care less about the death sentence if they are caught, its not even a consideration, because either way, the possibility of death stares them in the face – death from hunger and starvation as a result of poverty, or death as a result of conviction as an armed robber. 

But, the circumstances of Public Officials/Politicians is not the same – they would have everything to lose, including their lives, if they are caught and executed, particularly if they were lower middle class to middle class before their public positions. Apart from languishing on death row for decades in our less than conducive prisons, living under harsh conditions which they are not accustomed to, they would forfeit their illegally acquired wealth and properties, and their families and generations to come will also bear the shame of their family member being executed for corruption. 

Nigeria: The Law and Double Standards

1) Armed Robbery vs Corruption 

The conviction and execution of Mr Xiaomin, shows that China doesn’t seem to have sacred cows when it comes to the enactment or application of the law. The Chinese Government’s harsh stance against corruption, is probably because they realise how it can completely destroy a country, and so, offenders are not spared. Everyone appears to be accountable for their actions. However, unlike China, in Nigeria, the law appears to be skewed against the common man, as/and he is the only one that appears to be fully accountable for his crimes here. See Section 42 of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) on discrimination.

Using the examples of Liange and Xiaomin, in Nigeria, the death penalty is a sanction that is easily used to punish offences mostly committed by the common man, like armed robbery, and not those committed by the elite – see Section 1(2)(a), (b) & (c) of the Robbery and Firearms (Special Provisions) Act 1984 (RFA) which provides the death penalty by hanging or firing squad, for a Defendant found guilty of armed robbery. Also see the case of Ogbomor v State (1985) LPELR-2286(SC) per Chukwudifu Akunne Oputa, JSC where the Supreme Court held inter alia that “Under the Robbery and Firearms (Special Provisions) Decree of 1970, the punishment for armed robbery is death”. The punishment for robbery is 21 years imprisonment – see Section 1(1) of the RFA. See the definition of robbery, the illegal taking of property with violence and intimidation, and armed robbery, with a dangerous weapon, regardless of whether the weapon is used or not in Agboola v State (2013) LPELR-20652(SC); Okanlawon v State (2015) LPELR-24838(SC). 

And, is there really any difference between the common man’s armed robbery, and the ‘pen robbery’ that the elite commit? In fact, pen robbery is worse, because while armed robbery affects and sometimes results in the death of only the particular victims who have been attacked in an incident, in the case of pen robbery – bribery and corruption, the negative impact is felt by all Nigerians, as it stunts the country’s growth and development, and results in the people’s repeated deaths. A simplistic example, is a General Hospital where those in charge have stolen the funds allocated for the running of the hospital; patients needlessly die there on a daily basis as a result of inadequate medical care, which may have been avoided had the funds been applied judiciously. If the same type of corruption is rife among all the General Hospitals in Nigeria, then the healthcare in all of them would be deficient, and many common men who have no option but to seek medical attention there, will die needlessly. Is that not why top Nigerian Government officials, are most famous for medical tourism abroad? 

The bitter truth is that, while offences like robbery and armed robbery are given the harshest punishment, corruption which is just as destructive to society, if not more, is treated with levity; and the death sentence as punishment for corruption in Nigeria, may probably be the most effective deterrent, because we see that those who stand accused of engaging in corruption are usually cowardly in nature, like former Governor of Kogi State, Yahaya Bello, and appear to be afraid of being remanded in custody, let alone running the risk of being executed, if convicted for corruption. The fear of the consequence of being executed, may reduce the appetite of the more ‘elitist’ people for corruption. However, it more unlikely than a cold day in hell, that the National Assembly will ever enact any law that will prescribe the death penalty for corruption, as a number of even those members enacting the law, may themselves have to be sentenced to death! And, as we all know, self-preservation is the very first law of nature!

2) The Common Man vs The Elite

But, isn’t it unacceptable, that the law appears to be skewed against the common man who comprises the majority of the population of Nigeria? Though the Shari’ah Courts do not have criminal jurisdiction – see Sections 262 & 277 of the Constitution and Magaji v Matari (2000) LPELR-1813(SC) per Abubakar Bashir Wali, JSC & Uthman Mohammed, JSC; takefor instance Jigawa State’s Shari’ah Penal Code Law 2000 (JPC) – while Section 144 defines the offence of Theft of a movable property of another, Section 145 thereof prescribes the punishment of amputation of the right hand from the joint of the wrist, and where the offender is convicted for a second theft, then the left foot will also be amputated, then the left hand for a third theft and the right foot for the fourth theft – such a gruesome punishment. Similarly, the common man like Sharif Aminu, a Musician, was unlawfully sentenced to death for blasphemy by a Kano Shari’ah Court in 2020. But, Muslim Public Officials/Politicians and those who engage in bribery and corruption involving billions of Naira to the detriment of Nigeria and millions of Nigerians, as opposed to a person who may steal a cow, come under Section 164 of the JPC, that is, criminal breach of trust, the punishment for which is up to 10 years imprisonment, or a fine or both (see Section 165 of the JPC) – there’s absolutely no connection with the death penalty, or amputation of body parts. 

3) Bail

Murder, Armed Robbery, Rape, Corruption Offences are all non-bailable offences, that is,  they are felonies that carry a punishment in excess of three years imprisonment, and the grant of bail is not as of right. For non-bailable offences, the court must be approached for bail, and the Defendant must satisfy the conditions for the grant of bail in order to get same. So, why is it that an elitist Defendant who is arrested by the EFCC for humongous money laundering and corruption charges, is given administrative bail and is allowed to go home same day or the next, almost immediately by the EFCC without visiting the court, unless Government wants to make an example of such a person like former CBN Governor, Godwin Emefiele? It is because the issue of corruption, is not taken as seriously as it should be. 

Last week, in court, I saw a good number of the Accused Persons/Defendants who had been languishing in custody for years, awaiting trial. And, even though a number of these Defendants had been charged for serious offences like murder, armed robbery and kidnapping, Section 36(5) of the Constitution provides that there is a presumption of innocence until an accused person is proven guilty; and the common man certainly does not have less fundamental rights than a Defendant like Yahaya Bello, who stands accused of stealing over N110 billion (over $60 million) of government funds, and was not arrested by the EFCC until he gave himself up a few days ago. 

In the case of the common men Defendants I saw in court, the issue of bail doesn’t arise, or many of them may not meet the conditions for the grant of bail because of the nature of the offences, but, I’m sure Yahaya Bello whose alleged offences are no less heinous than those of these common men, is already eager to have his application for bail moved. In Dokubo-Asari v FRN (2007) LPELR-958(SC) per Niki Tobi, JSC, the Supreme Court held that “The main function of bail is to ensure the presence of the accused at the trial”. Other conditions for consideration in the grant or refusal of a bail application, enumerated in that case, include the nature of the charge against the Defendant and the punishment; the strength of the case against the Defendant; the likelihood of the Defendant being a flight risk, or interfering with witnesses while on bail. 

A person like Yahaya Bello who has evaded arrest for months, looks like a flight risk to any right thinking person, and granting him bail may go against the main function of bail which is to ensure his presence at his trial. The current Governor of Kogi State, Usman Ododo, who could have stood as a surety for Yahaya Bello, was instrumental in helping him evade justice, and when he’s no longer Governor and the Section 308 immunity from suit and legal process is lifted, he can actually be charged for offences like obstruction of justice amongst others. So, what will be trial court do? If it was a common man, the application for bail would most certainly be denied. Nigerians haven’t forgotten the case of Abdulrasheed Maina, the former Chairman of the Pension Reform Task Team who is now serving an eight year prison term for pension fraud amounting to about N2 billion. Despite being charged with serious offences and being a fugitive from the law, he was able to sneak back into Nigeria and not only resume his job as a civil servant, he was also promoted! And, despite being a flight risk, after he was re-arrested, he was granted bail and he fled to Niger Republic where he was finally arrested and brought back home to face justice. 

Conclusion

If a criminally minded elite knows that if he/she loots the State treasury, even if they are arrested by law enforcement they will be back to the comfort of their home on bail in the twinkle of an eye; that if they are lucky, they can enter into a plea bargain agreement and return N10 million of the N100 billion they have looted, where lies the deterrent against such corrupt activities? Treating such offenders with kid gloves, serves more as an enabler for others to engage in all manner of corrupt practices and underhand activities, knowing that their punishment will be light, if at all. 

Even when the common man enters a plea bargain agreement, for example, a person charged with murder facing the death sentence or life imprisonment; such Defendant will still plead guilty to a lesser offence like Manslaughter, and bag a healthy prison sentence of 10 or more years. In Nigeria, the more privileged pen robber is able to get off more easily than the common man, even if the crimes are just heinous. 

Of course, those who are against the death penalty do not recommend it as a punishment for any offence whatsoever. But, in Nigeria, if bribery and corruption, money laundering etc by public officials or whoever is not taken as seriously as the common man’s armed robbery, murder, rape and kidnapping, it is obvious that as the years go by, the scale of corruption in Nigeria will continue to multiply in unbelievable proportions and dimensions.