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Anti-corruption agencies and the challenge of capacity
p. 76-111
Texte intégral
Introduction
1From all accounts, fighting corruption was certainly a top priority in the policy of the administration of President Olusegun Obasanjo, which during its eight years in office pursued a number of wide-ranging reform measures aimed at checking corrupt practices and raising the credibility of public officials and institutions in Nigeria. Given all the energy and resources that were committed to prosecuting this struggle, the question that now arises is this: What was the impact of Obasanjo’s initiatives on the Nigerian governance landscape? To what extent did Obasanjo’s anti-corruption policies achieve their goals? If they achieved great success, what are the explanations for such a result? And if they produced little or no impact, what are the reasons for this?
2Assessing the impact of any reform policy, and an anti-corruption policy in particular, is a difficult task for a number of reasons. The first problem is that it is not always easy to determine what specific goals anti-corruption policies are designed to achieve (Dye 1984: 356). Anti-corruption crusades, as we have seen, often involve not only publicly stated goals (ridding society of corruption and corrupt individuals) but also some undisclosed political ends, such as procuring political legitimacy or eliminating the political enemies of a regime. Perhaps the best one can do is to focus on the attainment of officially stated objectives, which in almost all cases will be centred on reducing corrupt practices through removal of all incentives for corruption, detection of corrupt acts, and punishment of the perpetrators of corrupt acts. But even when policy objectives are clear, other analytical problems surface.
3First, corruption is a phenomenon that can hardly be measured empirically. Knowing whether corruption levels have decreased, increased, or remained the same requires first that corruption at any given time can be measured. There are two reasons why this measurement is impossible. First, there is the shortage of reliable data on corruption. Most corrupt acts are perpetrated in secrecy and so are not captured in official or academic data. Cases reported to the police or sourced from court records are only the tip of the iceberg and therefore are not representative of reality. One common fallacy is to regard the increase in the outbreak of corruption scandals as evidence that corruption has increased. Nothing could be further from the truth. Increasing outbreaks of scandals can, in fact, be a sign of improvement brought by increasing scrutiny of the activities of officials, which itself can be explained by the presence of a regime that has made the fight against corruption a major policy and thus has every incentive to create the impression that corruption is serious. It can also be linked to the arrival of a more liberal political regime, ushering in a freer press, a wider role for non-state actors, separation of powers, and checks and balances among public institutions. Second, the understanding of corruption itself is not static, varying from one country to another and from one time to another within the same country.
4Another problem is that because corruption is a complex and multi-dimensional phenomenon, prescribed measures are often multi-dimensional, involving a host of policies implemented over a long period of time. The problem that then arises is how to know when evaluation should commence and which particular reform has produced which effect or what the contribution is of each policy. Since reforms commence at different dates, we can defer evaluation until such a time as all policy intervention is over – for example, at the end of the administration. If we focus on a specific aspect of reforms or policies, can the result obtained from such a study be used as a yardstick for analyzing the anti-corruption drive as a whole? If we focus on the overall policy objective (to achieve a reduction in corruption), how do we determine the relative effectiveness of each individual policy? The reduction in the level of corruption depends on several separate policies. If corruption fails to drop, how do we determine which policy is to blame (anti-corruption institutions, privatisation, reform of public revenue and expenditure process, new policies on reward, employment, and retrenchment in the public service, or international campaigns aimed at recovering stolen assets?).
5These challenges, however, will not deter us from attempting to evaluate Nigeria’s anti-corruption reforms under Obasanjo. In the first place, this book, for practical reasons, does not seek to evaluate the impact or effectiveness of all the anti-corruption measures put in place by the Obasanjo government, a task which is clearly impossible. Our goal in this section is a much narrower one, focusing on the impact of a few policies and institutions, such as the work of specialised anti-corruption commissions. This choice is informed by the fact that not only are these institutions regarded as the major pillars of Obasanjo’s anti-corruption crusade, but there are sufficient data on their work to enable an assessment, and their impact is also easier to observe than the other aspects of reforms put in place to fight corruption. How then can one assess the effectiveness of these aspects of the anti-corruption reform? To do this, we have decided to rely on evaluation criteria suggested by Vasant Moharir. He argues that for any public policy to succeed, it must be effective (be able to achieve stated goals), efficient (achieve its goals with reasonable cost and time), innovative, and feasible both politically (meet the interests and aspirations of all major actors) and administratively (possess political will and the capacity of organs of implementation) (Moharir 2002: 113; Fischer 1995). To avoid unhelpful repetitions, Moharir is simply saying that the effectiveness of a policy – in this case, Nigeria’s anti-corruption crusade’s ability to achieve its goal, as in reducing corruption quickly – depends on institutional capacity (powers, resources, and leadership of implementation organs), political will, and the role or behaviour of major actors (Goodin 1996: 41), including national leaders, local elites, and civil society.
6Findings of numerous studies conducted on the work of anti-corruption commissions around the world have confirmed Moharir’s hypothesis. Robert Williams, Alan Doig, and Robin Theobald, in a comparative study focusing on such commissions in Africa, find that their effectiveness is hampered by what they called the ‘seven sins’: ‘economic sins’, or lack of resources; ‘political sins’, or absence of political will; ‘legal sins’, or inefficient legal system; ‘organisational sins’, or leadership weakness such as lack of independence and poor administrative style; ‘governance sins’, or lack or effective complementary institutions such as the police; ‘performance sins’, or level of efficiency; and ‘public confidence sins’, or lack of public trust and confidence (Williams & Doig 2004). Robin Theobald put these arguments in a more precise language when he observed that effective anti-corruptions agencies must have or be built around the following:
[C]onsiderable long-term resources, human capital, highly specialised skills … that must also be highly motivated; must be endowed with considerable legal and administrative powers; administrative clout … often taken to mean that such agencies need the strongest possible backing, perhaps even that of the head of state; appropriate levels of accountability and transparency; a strong institutional environment, especially in immediate ancillary areas such as the police service and the judiciary and availability of records particularly in the area of finance. (Theobald 1999: 152)
7In 1998, a World Bank report pointed out that Tanzania’s anti-corruption drive was greatly sapped by the poor performance of the Prevention of Corruption Bureau (PCB), which it said had been “generally weak and ineffective, lacking adequate staff, facilities, equipment and training. Staff is paid on civil service scale”. According to the report, “considerable time and effort in recruiting and training will be required to turn the PCB into an effective instrument in the anti-corruption struggle” (World Bank 1998a: 17). A similar report on Uganda argued:
Uganda has a comprehensive legal and regulatory framework which is essentially sufficient to combat corruption. However, the judiciary and enforcement agencies are weak, underfunded, and lack human and material resources … The institutions most directly involved with anti-corruption – the Inspectorate of Government (IGG), Directorate of Public Prosecutions (DPP) and Police – are severely constrained by limited resources, including low pay. (World Bank 1998b: 12)
8Official reports published by anti-corruption agencies themselves have also highlighted the same problems (DCEC 2000).
9As we will show in the following three chapters, Nigeria’s anti-corruption drive could not escape this predicament. The major anti-graft agencies which were at the heart of Obasanjo’s anti-corruption fight – the EFCC and ICPC – were victims of weak administrative capacity (limited powers, insufficient human and material resources, and inefficient legal system). A lack of broad-based support and commitment from the major political actors – national government, sub-national authorities, and civil society – further compounded the problem, contributing substantially to the continued prevalence of endemic corruption in the polity. The evidence was first and foremost the festering atmosphere of graft at all levels of government, despite the well-publicised anti-corruption war. Another factor was the continuing open hostility of key political heads in Nigeria, notably state governors, to the anti-graft war.
10In this section of our book, we discuss the three most important challenges that confronted the Nigerian anti-corruption reforms: Limited capacities of the anti-corruption bodies, strong opposition of state governments, and weak engagement of civil society. In the first of the three chapters, which examines the impact of poor administrative capacity on the struggle against corruption, we will demonstrate that although the decision to create the ICPC and EFCC was well-intended, these institutions unfortunately failed to contribute to the reduction of corruption in a significant way. Despite their wide powers and relatively extensive administrative structures, which set them apart from similar institutions created by past regimes in the country, the EFCC, and more particularly the ICPC, grappled with problems of administrative capacity caused by inadequate political will at the highest level and an uncooperative political class dominated by people who were committed to the preservation of the status quo. We shall examine each of the two institutions in turn, beginning with the ICPC.
The ICPC and the war against corruption: A disappointing balance sheet
11Before the establishment of the ICPC in September 2000, Nigeria had not convicted anybody for corruption in a regular court.1 The inauguration of the ICPC, with unprecedented powers and promise of support from the highest level, therefore raised hopes of a new dawn. As Table 5.1 shows, within its first year, covering October 2000 to September 2001, four cases were brought before the courts for various corruption offences. This figure rose to 14 at the end of the ICPC’s second year in September 2002, before peaking at 27 at the close of its third year in September 2003.2 According to some ICPC officials interviewed, these stemmed from a total of 800 petitions submitted to the ICPC by different individuals and groups in conformity with the 2000 ICPC Act. At the end of the day, the ICPC could not secure convictions in these cases or many more that followed. The consequence was that by 2007, after more than seven years in existence, it had become more synonymous merely with its anti-corruption jingles advertised repeatedly on local television stations and with the term “toothless bulldog”. Indeed, the ICPC could only secure one conviction involving two relatively minor individuals (the medical director of the famous Ahmadu Bello University Teaching Hospital and his finance director). The limits imposed by its own legislation, poor investigative skills and its own mishandling of investigations, insufficient human and financial resources, its management style, an inefficient judicial system, and constant attacks from politicians, especially federal legislators, all combined to create the basis for poor results and progressive loss of credibility.
Table 5.1. Index of performance of the ICPC (July 2005)
| Oct. 2000 - | Oct. 2001 - | Oct. 2002 - | Oct. 2003 - | Oct. 2004 - | Total |
Total petitions received | 264 | 365 | 367 | 451 | 399 | 1846 |
Petitions approved for investigations | 20 | 185 | 439+ | 327 | 209 | 1180 |
Investigations concluded | 11 | 19 | 17 | 16 | 17 | 80 |
Cases filed in court | 4 | 10 | 13 | 8 | 14 | 49 |
Convictions won | 0 | 0 | 1* | 0 | 0 | 1 |
* Two individuals were convicted during this trial.
+ Some of these petitions included those submitted during earlier years
Source: ICPC (2006).
12The task of the ICPC was not restricted to arresting, investigating, and prosecuting suspected corrupt individuals. It was also expected to do the following: Design and implement measures aimed at preventing corruption in the country, such as a nationwide public enlightenment campaign; provide support to the formation and development of other institutions, such as NGOs and anti-corruption units in other public institutions committed to the fight against corruption; conduct research on the practices and procedures of public institutions which encourage corruption; and suggest ways of eradicating such practices and procedures (ICPC 2006). Although the ICPC gave substantial attention to these functions, these efforts were to be in vain if it could not invoke sanctions against corrupt officials and individuals through criminal investigation and successful prosecution. The willingness and capacity to detect corruption and impose sanctions, ranging from conviction and imprisonment to confiscation of corruptly acquired wealth, are among the most important indices for evaluating the performance of an anti-corruption institution. This is the real deterrence, and not the level of information available to the organ or the number of studies performed on and recommendations made for corrupt public institutions and systems. Unfortunately, the ICPC performed, according to these indices, very inadequately. Table 5.1 makes this point clearly. The reasons, as we have said, are numerous. We will highlight some of the most important ones.
Chronic underfunding and insufficient manpower
13The lack of sufficient human resources, resources which define the capacity and effectiveness of all bureaucratic organisations, was a major source of constraint for the ICPC. The effects manifested not only in the scale and speed of investigations but more importantly in their quality – and thus in the results of trials. The question of the shortage of human (qualified staff) and material resources (funds, functional offices, equipment) at the ICPC has already been discussed in some detail in Chapter 3 of this book; thus, it will be unnecessary to recount it here. It suffices to note, however, that this foremost anti-corruption body did not possess sufficient numbers or quality of personnel and the administrative structures required to make an appreciable impact in the war against corruption in such a huge country as Nigeria. Availability of high-quality manpower and administrative structures are a direct function of adequate budget. An institution which lacks adequate budgetary support cannot hire or mobilise a competent workforce, nor can it run and maintain a robust physical structure. As the data presented in Table 5.2 shows, the Nigerian authorities did not understand this fact or had chosen to ignore it.
14Even though its weak financial base did not allow it to hire the brightest lawyers (Ribadu 2004: 9)3 or the full complement of investigators required, the manner in which the managers of the ICPC applied their resources – relative to recruitment of staff – raises some questions about their managerial skills. From its own data, the ICPC clearly favoured the employment of administrative staff over specialists in its core areas (investigators and prosecutors). In 2004 for example, four years after its establishment, it could boast of only 26 investigators out of a total of 294 workers (ThisDay, 17 June 2004). The figure improved slightly to 32 for investigators and 17 prosecutors out of a total of 271 workers in July 2005 (ICPC 2006: 104). One can easily contrast this with what obtained at the Independent Commission Against Corruption (ICAC) in Hong Kong, which had 1,148 employees in December 1991, 794 (or 69%) of whom were working in the department of investigation. A mere 7% of its total workforce was employed in the administration department (Quah 1995: 402). The consequence of such disequilibrium, especially in a country of more than 140 million people and marked by several decades of endemic and systemic corruption, was obvious. The ICPC could not conclude investigations in good time nor was it able to speedily prosecute corrupt individuals reported to it, resulting in many accusations being made against it. More importantly, its activities were mainly visible in Abuja (see Table 5.3).
Table 5.2. Budgetary allocation and staff strength of ICPC (2000-5)
Oct. 2000-Sept. 2001 | Oct. 2001-Sept. 2002 | Oct. 2002-Sept. 2003 | Oct. 2003-Sept. 2004 | Oct. 2004-July 2005 | |
Budget proposed by ICPC | N2,558m | N9,027m | N1,652m | N943m | N1,208m |
Amount released | N990m (38.7%) | N415m (4.6%) | N410m (24.9%) | N497m (52.7%) | N262m* (21.7%) |
Number of personnel | 137 | 261 | 293 | 294 | 271** |
* This amount represents the sum that had been released as at the end of May 2005. This will probably have doubled by the end of the year.
** The reduction in the number of staff, compared with the previous year, was explained largely by the departure of several staff who were on secondment from other public institutions.
Source: ICPC (2006).
Table 5.3. Geographical distribution of court cases initiated by ICPC (March 2005)
State | Location of court | No. of cases |
Abuja Kaduna Rivers Edo Kano Imo Benue Kwara Lagos Niger Kogi Plateu Ebonyi Ondo Kebbi Delta | Abuja Kaduna Port Harcourt Benin Kano Owerri Markurdi Ilorin Lagos/Ikeja Minna Lokoja Jos Abakaliki Akure Birnin-Kebbi Asaba | 15 3 1 2 2 1 2 1 2 1 3 1 3 1 1 1 |
Total | 40 |
Source: ICPC (2005a).
15In October 2005, the ICPC took steps to improve and restructure its staff situation by recruiting more staff. During that exercise, a total of 152 new employees were brought in to boost its operations, 45 of whom were investigators (ICPC 2005b). Many thought, all things being equal, this improvement in staff strength was going to impact positively on the ICPC’s performance, especially in the key areas of investigations and prosecutions. But as the saying goes, all things are never equal. The ICPC’s problems were much deeper than the issue of funding or staffing. Inefficiencies in Nigeria’s criminal justice system in general and the uncooperative attitude of the political leadership at the time, particularly the notoriously corrupt federal legislature, proved to be greater sources of problems for this anti-corruption body.
Constitutional loopholes and ineffective criminal justice system
16According to the authors of a recent UN report on judicial integrity, “a fair and efficient judiciary is the key to all anti-corruption initiatives” (Langseth & Stolpe 2001: 3). Nigerian courts, especially at the lower levels, are notorious for corruption, perversion of justice, snail-speed of trials, and political interference (Oyebode 1996; Federal Republic of Nigeria 1994). Despite the much-vaunted intention to reform these institutions (Ojo 2005), the Obasanjo government failed to push through any major reform before leaving office in May 2007. Although the judiciary went on to witness considerable reforms following the intervention of some international organisations and the increasingly independent National Judicial Council (see Chapter 4), most of the progress recorded was in the area of improving the integrity of judges. In the area of efficiency, that is speed of trials, very little change took place. Although part of the problems had to do with constitutional immunity against arrest and prosecution granted to some political leaders, and an insufficient number of judges, the courts were also guilty of unnecessary adjournments of cases and indulging in granting incessant interlocutory injunctions to accused persons (Ribadu 2004: 6).
17The consequence of this for the ICPC was that its court cases, some of them as old as the commission itself, were buried in complex judicial processes, as accused persons, aided and abetted by their lawyers, continued to exploit these loopholes to frustrate the course of justice.
18Court cases could last between five and ten years, or even longer. This is especially the case where the individual facing trial has sufficient resources, enough to hire one of the senior advocates of Nigeria (SAN). The SANs are the most successful lawyers in the country. Among them are those who are very conversant with the numerous loopholes in the legal system, which can enable an accused person to delay justice, if not escape it completely. With this information in mind, we will now proceed to review some of the most ‘celebrated cases’, which highlight the role of an inefficient judiciary in Nigeria’s faltering anti-corruption drive.
The case of Milton Paul Ohwovoriole and others
19The ICPC launched its first major operation in 2000 with the arrest of four individuals accused of offering N3.5 million in bribes to a member of a commission of inquiry established by the federal government to probe the financial activities of the defunct Nigerian Airways Limited (NAL). The four included a senior advocate, Milton Paul Ohwovoriole; Adebiyi Olafisoye, a multi-millionaire and proprietor of an insurance company, Fidelity Bond Ltd.; and one of the latter’s managers, Adeyemi Omowunmi. The three, according to the ICPC, conspired to offer the bribe through Adeyemi Omowunmi to the fourth accused, Alhaji Mika Anache, a member of the commission of inquiry on NAL. The money, which was paid on the 16 November 2000, according to investigators, was intended to procure a favourable report from the commission of inquiry. Alhaji Anache, an influential member of the governing Peoples Democratic Party, said he kept the money in his personal bank account because “the commission was on recess”, with the intention of reporting the matter to the commission. He failed to do so, however, until another member reported that he had received information that a member of the commission of inquiry had received N3.5 million in gratification. This was two months after the money was paid. The action constituted an offence under Sections 10(a)(ii) and 231(1) of the ICPC Act.
20This case immediately raised hope of a quick breakthrough in Nigeria’s perennial struggle with corruption, given its straightforward nature and the social backgrounds of those involved. Unfortunately, the hope soon turned unfounded, as the ICPC’s attempts to prosecute the offenders suffered one delay or the other owing to incessant adjournments, injunctions, and counter injunctions granted by the trial courts. More disturbingly, the Nigerian Police, well known for their corruption and inclination to collude with criminals seeking to escape justice, soon announced that the principal suspect, Adeyemi Omowunmi, who investigators said had personally ferried the money to the indicted member of the commission, had escaped from its detention under ‘mysterious’ circumstances (The News, 25 June 2001). As at the end of March 2012, this case had yet to be concluded. In fact, the trial had not yet gone beyond the Abuja High Court, which was the first court of trial. In other words, even if conviction was secured at that level, the accused persons could still appeal to the Appeal Court at Kaduna, before proceeding finally to the Supreme Court were the Appeal court to uphold the judgment of the Abuja High Court.
The case of the Ondo commissioners
21Another case that underlined the ICPC’s battle with an inefficient, sluggish criminal justice system was the one involving two commissioners (equivalent to ministers at the federal level) from Ondo State. It is important to recall that Ondo State was one of the states which mounted a legal challenge against the ICPC Act between June 2000 and July 2001 at the Supreme Court of Nigeria, challenging the constitutionality of the ICPC and its enabling Act. This state, therefore, has a long history of hostility to the ICPC and everything connected with it. Indeed, its hostility was further reinforced when the ICPC decided to open investigations against officials of the state for alleged corrupt practices. The investigations followed a petition to the ICPC, alleging that the Ondo State government had acquired a property valued N500 million, in Lagos, the nation’s commercial capital, ‘under very dubious circumstances’. Some top government officials, including the state governor, were said to have derived undue benefits from the deal, in violation of their oath of office and indeed the ICPC Act. Following this, an invitation was issued to the State Commissioner for Finance, requiring him to appear before the anti-graft body with all documents related to the acquisition of the property (Newswatch, 3 March 2003). This invitation was ignored by the official concerned, prompting the ICPC to issue a warrant for his arrest and the arrest of the Ondo State Attorney-General, which did not produce any result either. The two officials, with the active connivance of the state government, simply disappeared or went into hiding each time officials of the ICPC were in the state to effect their arrest.
22When they finally decided to come out of hiding, these officials, again with the open support of the Ondo State government, sued the ICPC and its chairman, whom they accused of defamation (Vanguard, 24 May 2002). According to them, the ICPC boss had referred to them as “fleeing criminals”, while featuring in some radio and television programmes held on 4 and 7 January 2002, respectively. They alleged that the aforesaid invitation was signed only on 9 January 2002. The ICPC’s action, according to them, constituted an infringement of their “fundamental human rights” (The Guardian, 18 January 2002). Political sentiments were soon introduced, when they alleged that their investigation was a “deliberate attempt by the ICPC, which has become an instrument in the hands of their political rivals, to bring down the leadership of the state” (Newswatch, 3 March 2002).4
23By evading physical arrest and possible arraignment on 11 counts of infractions bordering on corruption and then filing a civil suit against the ICPC, these accused persons managed to escape justice. Their schemes were helped by deficiencies in the criminal justice system. For instance, a general lack of security had ensured that one of the accused (the Attorney-General) managed to flee the country, leaving the ICPC with very little proof. It was not surprising that at the end of their first trial at the High Court of Akure, the capital of Ondo State, in March 2004, the accused were acquitted for want of “substantial evidence” (ThisDay, 23 March 2004), leaving the ICPC with no option but to appeal.
24The failure of the ICPC before the Akure High Court was also due in part to loopholes in its own law (the ICPC Act). According to Section 26 (2) of the Act, “(p)rosecution for an offence under this Act shall be initiated … in any superior court of record so designated by the Chief Judge of a State or the Chief Judge of the Federal Capital Territory, Abuja” (Federal Republic of Nigeria 2000a). In other words, it is the responsibility of the head of the judiciary or chief judge of the 36 states of the federation (for all offences committed in any of the 36 states) or the chief judge of the federal capital, Abuja (for offences committed in Abuja), to inaugurate a “superior court of record” and appoint “competent” judges to hear cases brought by the ICPC. The term “superior court of record” in Nigeria means any of the 36 State High Courts (under the 36 state governments) or any of the Federal High Courts scattered across the country, including the one based in Abuja, the federal capital (under the federal government).
25The consequence of this provision of the ICPC Act is that any offence committed in any of the 36 states (such as the one involving the Ondo commissioners) is brought before a court controlled by the state in question and judged by a judge appointed by an appointee of the same state government. In countries such as Nigeria, where judges are hardly independent of appointing authorities, it is difficult to see how a case brought against an official of a state government can receive a fair trial in its own court. If the Ondo State government does not want its officials convicted, as was clearly the case, it is almost impossible for the ICPC to secure victory before an Ondo State High Court. The ICPC subsequently launched an initiative to have this aspect of its law repealed, to ensure that its cases are taken only before the federal high courts and to avoid any interference by the state governments, largely seen as indifferent to the ongoing war against corruption. The ICPC’s proposed amendment had still not passed through the National Assembly by the time President Obasanjo left office, and nor has it been passed to date.
The case of state governors
26Beyond incessant adjournment of cases by judges and the use of counter litigation by accused persons, which tend to delay the application of justice, there are other important legal factors which have limited the capacity of the ICPC enormously, and indeed all the other anti-corruption bodies in Nigeria (including the Nigerian Police, the EFCC, and the Code of Conduct Bureau). One of these loopholes is certainly the constitutional immunity against arrest and prosecution granted by Section 308 to major political leaders: The President, Vice-President, and all 36 state governors and their deputies (Federal Republic of Nigeria 1999a). This provision was partly intended to protect these political leaders or heads of government and their deputies from incessant and frivolous litigation, which would distract attention from the serious business of governance. However, this nobly intended provision also served other functions, notably as a carte blanche for some of these officials to engage in treasury looting.
27Certainly, relevant sections of the ICPC law prescribe some procedures under which the President, Vice-President, and governors and their deputies can be investigated and impeached for corruption. According to Section 52 of the Act, when an allegation of corruption has been made and found to be true (by the ICPC), the report of such investigation must be submitted to the Chief Justice of Nigeria, who will then appoint an independent jury to further investigate the accusations. Where the jury confirms the veracity of the allegations, it will then foreword its findings to the National Assembly (in the case of the President or Vice-President) or the state legislature (in the case of the governors or their deputies), which can then initiate proceedings for impeachment in accordance with Section 52(1) (Federal Republic of Nigeria 2000a). Unfortunately, all attempts by the ICPC and other institutions to apply this difficult rule were blocked by the courts, which held that the provision was illegal to the extent that it is in conflict with Section 308 of the Constitution.
28Similarly, as in all presidential systems of government, the Nigerian Constitution anticipates some type of legislative control of the Executive. Unfortunately, the actual practice is such that the Executive (the governors especially) exercises greater control over the legislature than does the legislature over the Executive. Rather than check the excesses of their governors, much of the legislature acts more like a rubber stamp for the governors. As the cases that follow show, unless constitutional immunity is completely removed or at least modified, all these provisions will remain ineffective in the face of the wanton corruption perpetrated by some of these protected officials, particularly the governors.
29Between 1999 and 2007, petitions alleging one form of corruption or another against the governors, who collectively control about half of Nigeria’s vast oil revenue, flooded the ICPC. After initial hesitation, the ICPC decided to act. In January 2003, it issued a statement confirming that investigations involving at least 15 of the 36 governors, who belonged mostly to the ruling PDP, had almost been concluded and that those who had cases to answer would soon be prosecuted (The Guardian, 28 March 2003). Of course, this statement raised many political concerns, given the fact that it had been preceded by an earlier request by the National Chairman of the PDP, addressed to the ICPC, seeking to ascertain the ‘status’ of all those who wanted to contest elections (in April 2003) under its platform. Fears were raised about the possibility that the leadership of the party, in active connivance with the Presidency, might be seeking to scuttle the political ambition of some governors perceived to be hostile or disloyal to the President. All the same, the statement by the ICPC was welcomed by a considerable number of Nigerians, who had become overwhelmed by stories of massive corruption by government officials, particularly by governors of oil-producing states. These individuals were frequently associated with massive embezzlement of public funds, money laundering, ownership of numerous overseas accounts and property, ostentatious displays of wealth, and frequent and unexplained trips abroad. These accusations were not unfounded, as some of the events described in the next chapter will show. But the challenge for anti-corruption bodies such as the ICPC remained how to bring these powerful officials to book in view of the immunity which the Constitution accords them.
30Subsequently, the ICPC announced that investigations were completed and that a formal request had been forwarded to the Chief Justice of Nigeria (CJN) in line with Section 52 of its Act, requesting him to appoint an independent jury to investigate allegations against five governors indicted in its report (The Guardian, 28 March 2003). Apart from Governor D. S. P. Alamieyeseigha of Bayelsa State, whose file was the first to be sent to the CJN on 8 January 2003, the other governors were not named. Alamieyeseigha was accused of corruption and abuse of office by one Festus Gbassa, a citizen of his state (ThisDay, 21 January 2001). Specifically, he was said to have approved “contracts and payments to the tune of N1.7 billion to 8 fictitious companies” with respect to construction works in the state-owned Niger Delta University. The Bayelsa State Tenders Board, presided over by him, also awarded contracts valued at N667.3 million to fictitious companies. Another allegation was that this governor, with the help of some local banks, transferred public funds running into billions of naira into his private bank accounts abroad. Mr Alamieyeseigha was also said to own numerous landed properties at home and abroad, including a five-star hotel in Abuja, the nation’s capital (Newswatch, 3 March 2003).
31But the ICPC’s case file on Alamieyeseigha contained at least two important weaknesses. First, as the agency itself noted, it could not confirm or verify the authenticity of all the claims, such as the property he allegedly owned in his state. This, according to the ICPC, was because all attempts to do so were frustrated by the state’s Commissioner of Lands and Housing, who refused to cooperate with agents of the commission during their investigations. When the ICPC declared its intention to commence criminal prosecution against Alamieyeseigha, a second weakness emerged. Five of the eight companies classified as “fictitious” by the ICPC and as having benefited from the Bayelsa governor emerged with proof of their existence to challenge what they called “false accusations and attempts to intimidate them”. According to them, not only did they exist as legal entities (the ICPC apparently had not crosschecked this fact with the Corporate Affairs Commissions charged with the registration of companies, nor did it invite the companies for a discussion), but they had had no business relations whatsoever with Alamieyeseigha or the government of Bayelsa State. They thereafter instituted their own suits before the Abuja High Court requesting damages and, of course, that the entire report on Alamieyeseigha be set aside.
32While these suits failed to secure a reprieve for Alamieyeseigha, which was clearly the intended goal – the trial court upheld the ICPC’s powers to prosecute the governor in line with Section 52 of its Act – it dealt a decisive blow to the credibility of the ICPC. The indiscretion and poor investigative skills of the ICPC were highlighted by the trial judge, who noted in his 25 November 2005 judgment that “there was an attendant irregularity in the probe conducted by the ICPC to the extent that the companies were not given the opportunity to defend themselves in line with the principle of fair hearing” (The Guardian, 28 November 2005). For a long time, these gaps in the case of the ICPC were capitalised upon by Alamieyeseigha and his supporters, who spearheaded a media war in an attempt to weaken the commission and force it to back down on its pledge to press charges against the governor. When the ICPC refused to back down, Alamieyeseigha’s immunity against investigation and prosecution became an alternative escape route.
33On 20 January 2003, barely two weeks after his case file was sent to the CJN for action, Governor Alamieyeseigha filed his own suit before the Abuja High Court against the ICPC and the CJN. In his suit, Alamieyeseigha did not contest his indictment over allegations of grand corruption. He simply wanted an order (interlocutory injunction) by the court restraining the CJN from appointing an independent counsel, as demanded by the ICPC, to investigate allegations of corruption against him (ThisDay, 21 January 2001). The principal ground for his suit was that “all governors (and their deputies) enjoy immunity against investigation and prosecution in line with Section 308 of the Nigerian Constitution” and, therefore, that “Section 52(1) of the ICPC Act on the basis of which the ICPC had demanded the CJN appoint a jury was unconstitutional, null and void”. In Alamieyeseigha’s estimation, the action demanded by the ICPC – his appearance before an independent counsel – would violate his immunity as guaranteed by the Constitution. Governor Alamieyeseigha also sued the CJN himself over the same issue (ThisDay, 17 June 2004).
34Governor Alamieyeseigha’s request was fully granted by the court, which issued a restraining order that all investigations and prosecutions be stopped. Alamieyeseigha’s victory had an immediate consequence on the activities of the ICPC, notably the quiet decision by the anti-corruption agency to abandon prosecution of the other four governors whose files were already before the CJN, whatever may have been their crimes. By the same measure, all future attempts to prosecute state governors, believed to be among the worst offenders in terms of corruption, were also rendered practically impossible,5 subsequently granting a charter of impunity among these categories of officials. After its failed attempts to bring Alamieyeseigha to justice, the ICPC carefully avoided taking on the governors despite public pressure to do so, leading to a gradual loss of credibility. Its defence was often that it lacked sufficient financial resources to do so. Other sister organizations which had sought to challenge the constitutional immunity granted to governors encountered the same defeat. One of them was the Code of Conduct Bureau (CCB), which in a close collaboration with the EFCC wanted to prosecute Governor Joshua Dariye of Plateau State over allegations of operating foreign bank accounts, corruption, and money laundering but was stopped by the court (The Guardian, 7 December 2004).
35The negative impact of constitutional immunity in a country ravaged by endemic high-level corruption was widely acknowledged. Indeed, not many Nigerians, outside the group who benefit from this provision, hold the view that it should be retained. Gani Fawehinmi, a senior lawyer and one of Nigeria’s irrepressible anti-corruption and human rights’ crusaders, warned that “the entire Section 308 has to go. If it does not go, corruption will not end. If Section 308 is not removed, executive lawlessness will never stop. If Section 308 is not thrown out of our constitutional order, abuse of power will continue to heighten in the body polity” (The Guardian, 15 April 2004). Even in his ruling restraining the CCB from prosecuting the Governor of Plateau State for corruption, Justice Steve Jonah Adah of the High Court of Abuja warned that “this immunity is the albatross that hangs on the neck of Nigeria. Until it is cut off there will be no unity between politics and probe” (The Guardian, 7 December 2004). The National Judicial Council (NJC), Nigeria’s highest judicial regulatory body, also expressed a similar view. In a proposal submitted to the Senate (Sub-Committee on the Review of the 1999 Constitution), the body argued that “immunity from criminal prosecution granted to specified officers of State … is being abused and is capable of being abused in a manner that could endanger the nation and its democratic system of government … In view of all the following, the NJC is of the opinion that (it) be reviewed with a view to closing avenues of abuse”.6
36There were also several discussions within government circles about a possible modification of the immunity clause, to allow for the nomination of an independent jury that could launch criminal pursuits (but not civil) if good grounds existed against indicted officials. This was also among the recommendations of a National Political Reform Conference inaugurated by President Obasanjo, which brought together some of the most important members of the Nigerian elite in Abuja between February and May 2005 (Federal Republic of Nigeria 2005). This proposal had earlier been advanced in a bill sent to the National Assembly by the CCB, which had suffered legal defeat at the hands of Governor Dariye of Plateau State and three others (in Abia, Oyo, and Jigawa states) accused of maintaining foreign bank accounts in violation of existing rules (ThisDay, 20 May 2005). However, political reality on the ground did not favour such changes. Any amendment of the Nigerian Constitution requires the approval not only of both houses of the National Assembly, most of whose members had expressed their discomfort with a powerful anti-graft body, but also that of at least 24 state assemblies. This means the support of the state governors is necessary, those who stand to lose most if they support the amendment. Any such move on their part will amount to committing a form of class suicide, something that is rather uncommon in Nigeria.
37In many ways, therefore, the problem of weak capacity (insufficient human and material resources, limited powers, and an obstructive criminal justice system) that confronted Nigeria’s foremost anti-corruption agency is also dependent upon and closely linked to the issue of political will and support and the attitudes of key political actors. This point was clearly demonstrated by the frosty relationship between the National Assembly and the ICPC during the Obasanjo era, especially during the period 2000-4.
Political leadership and the ICPC’s anti-corruption campaign
38Since the publication of Gaetano’s ground-breaking work on elite theory (Gaetano 1939), the dominant role of national elites in political life in general, and in the policymaking and implementation process in particular, in all countries – democratic and authoritarian – has been the subject of much intellectual interest (Dye 2001; Kalu 2004; Daloz 2002). In a study touching on the role of customs’ agencies in the fight against corruption, Irene Hors noted that “reformers need to be centrally concerned with the attitudes, perceptions and actions of elites, as they will be fundamental to any efforts to initiate and sustain reform” (Hors 2001: 54). The will and political behaviour of a national elite form what Vasant Moharir calls the “political feasibility” of a public policy, which according to him is a decisive factor that cannot be ignored or underestimated in the explanations for success or failure of government policies and programmes (Moharir 2002), including anti-corruption crusades. This hypothesis is largely true of Nigeria’s anti-corruption policy, as reflected in the predicament of the ICPC at the hands of Nigeria’s governing elite, of whom the national lawmakers form an important component.
39Although it may not be the sole or even the strongest holder of political power, the support and behaviour of the parliament is crucial for the success of government policies and programmes for many reasons, notably the parliament’s power over the control of public funds and laws. Strong political will and support for public policies by the political class (including the legislature), which controls public resources in a democratic state, can be measured by their willingness to do all that is necessary to raise the capacity and effectiveness of institutions charged with the implementation of public policies. This usually involves appropriation of sufficient funding required for running such institutions and achieving policy goals, such as recruitment of qualified staff, acquisition of necessary structures and equipment, granting such institutions sufficient powers, and providing the necessary enabling legal environment for these institutions to operate. Similarly, the presence of strong political will should also be seen in the absence of political interference and in the refusal to politicise or manipulate such institutions for selfish ends. Political leaders must also be willing to respect and observe the regulations advanced by the policy and thereby show a good example and encourage public confidence.
40These conditions were largely absent as far as the crusade against corruption spearheaded by the ICPC was concerned. The political leadership at the national level, particularly the federal legislature, did more to undermine the capacity of the ICPC than empower it to fight corruption. We have already noted how the federal legislators’ refusal to allocate sufficient funds and to give favourable consideration to the request from the anti-graft agencies for legal amendments to correct observed legal loopholes undermined the potency of these institutions. Yet it appears that the greatest weapon employed by the legislature to weaken these institutions was their open indulgence of corrupt practices and their politicisation of the work of the ICPC.
41Until 2003, the National Assembly did nothing overtly to interfere in the operations of the ICPC. It was content with its decision not to allocate sufficient funds and not to give favourable consideration to the request from the anti-graft agencies for legal amendments to correct observed legal loopholes. Friction between both institutions and open interference from the Assembly emerged only when the ICPC announced that following the petitions it received from some members of the national legislature alleging corruption on the part of its leadership, it had opened investigations into the financial activities of the leaderships of both houses of the National Assembly, that is, the Senate and the House of Representatives.
42The ICPC’s statement did not come as a surprise. For many years, both institutions, which together make up the federal legislature, were considered the bastion of political scandals and large-scale corruption. Only six months after the Assembly’s inauguration, its entire leadership was swept away following allegations of falsification of age and certificates. These were no mere allegations. In July 1999, Mr Salusi Burahi, Speaker of the House of Representatives, was sentenced to two years in prison (with the option of a N2,000 fine) for falsifying his educational and birth certificates (ThisDay, 25 July 1999). A few months later, the new leadership, including the Senate President (also the Chairman of the National Assembly) became enmeshed in yet another serious allegation of corruption. The allegation included the charge that the leadership of the legislature had awarded contracts to themselves, members of their families, and cronies at inflated prices and in utter disregard of existing regulations. These allegations were so widespread that they forced the National Assembly to allow an internal probe. The report of the probe submitted in August 2002 indicted the leadership, including the Senate President and his deputy and virtually all the senate committee chairmen, paving the way for the loss of their leadership positions (ThisDay, 26 July 2000). The new leadership that emerged after this scandal did not show much interest in transparency either. Repeated pleas and law suits initiated by some members of the legislature to force the new leaders to hand over the report of the Senate committee that had indicted the departed officers to the ICPC for possible prosecutions were spurned (Vanguard, 24 May 2002).
43The failure of the National Assembly to keep its own house in order and repeated petitions against its leadership made the ICPC’s intervention and the subsequent clash between the institutions unavoidable. The ICPC intervention was first prompted by a petition by one Senator Arthur Nzeribe, to the effect that Senate President Anyim Pius Anyim (the third since the birth of the National Assembly in May 1999), was constructing three mansions in different parts of the country, supposedly with state funds. The Senate President also allegedly “approved contracts to fictitious companies at inflated prices and paid huge sums to his loyalists in the Senate for some official duties that were never carried out” (The News, 7 May 2001). Similar allegations were also made against the Speaker of the House of Representatives, Alhaji Ghali Umar Na’abba, in petitions addressed to the ICPC in August 2002 by some members of that institution (ICPC 2002). On the basis of these petitions, the ICPC decided to write to the leadership of both institutions, demanding their cooperation in its investigations. But instead of cooperation, the leaders of the National Assembly were spoiling for a fight.
44The Speaker of the House of Representatives initially agreed to cooperate with the ICPC, but on the condition that a copy of the report of investigation on him be made available to him. This request was turned down by the ICPC, which cited provisions in its Act stating that the contents of investigations can only be divulged to the accused person when preliminary investigations are concluded. At this point, Mr Na’abba adopted a more confrontational posture. Initially he demanded assurances from the ICPC that the agency would not allow itself to be used as an instrument of blackmail and intimidation by politicians, in a veiled reference to the President, who was then embroiled in a bitter struggle for power with the leadership of the National Assembly over the latter’s attempt to impeach him. Mr Na’abba later stated that allegations against him, which he said were false, were instigated by the President, who wanted to undermine the impeachment process put in place against him by the National Assembly. When the ICPC completed its preliminary investigation and found that sufficient grounds existed to interrogate the Speaker, Mr Na’abba promptly went to court, which gave him an interlocutory injunction halting further action on the matter by the ICPC.
45The Senate President also pursued a similar strategy. But in addition to a law suit against the ICPC, Mr Anyim also wrote petitions to the President, in which he criticised the modus operandi adopted by the ICPC. For instance, he complained that the ICPC had gone to the houses he was said to be building, in the company of agents of his accuser (Senator Nzeribe). In his opinion, it was also unacceptable for the ICPC to enter the premises of an accused without notifying him or her. For these reasons, Anyim accused the ICPC of becoming a “weapon in the hands of certain people” and therefore corrupt (Newswatch, 3 March 2003).
46Tension between the ICPC and the National Assembly increased when the two leaders secured the support of the majority of their colleagues in the Senate and House of Representatives, most of whom wanted the anti-graft commission to be tamed, if not abolished completely. Thus, on 19 November 2002, the Senate inaugurated a committee to investigate the activities of the ICPC since inception (Newswatch, 9 December 2002). This decision signalled the preparedness of the legislators to move finally against the commission, which the legislators had now come to perceive as a threat or, in the words of the Deputy Senate President, Ibrahim Mantu, as a “terrorist institution”. There were only two ways through which this move could be achieved: Abolition of the ICPC or amendment of its Act. For obvious reasons, the legislatures settled for the second strategy. This process commenced on 6 February 2003, when procedures for the amendment of the ICPC Act were unveiled in the Senate (ThisDay, 7 February 2003), amidst criticisms from the Executive and a number of civil society organisations, including Transparency International, Zero Corruption Coalition, and the Nigerian Bar Association (The Guardian, 24 February 2003; ThisDay, 4 March 2003; ThisDay, 7 March 2003). After some very harsh criticisms directed at the ICPC, the bill was adopted by the Senate on 26 February 2003, that is, less than three weeks after the bill was introduced (The Guardian, 27 February 2003). Even the House of Representatives could not wait longer. On 13 March 2003, it followed the same path, despite a subsisting court order to the contrary (ThisDay, 14 March 2003). These decisions were unprecedented departures from established legislative tradition in the country. While it took the same legislators a whole year (June 1999 to July 2000) to consider and pass the 2000 Act, seven weeks was more than enough to complete both a probe of the activities of the ICPC and the passage of a new Act (the 2003 ICPC Act). Spirited attempts by the Executive to halt the process and save the 2000 Act, through a presidential veto, produced little effect. The two houses of the national legislature simply met in a joint sitting on 7 May 2003 to overturn the veto (ThisDay, 8 May 2003).
47The lawmakers had premised their action on the need to safeguard the independence and integrity of the ICPC. But their real intention could hardly be concealed. In addition to the speed with which the bill was passed, its contents also spoke volumes about the real intention of the lawmakers. The new law contained several important changes, which were obviously intended to weaken the anti-corruption agency and eliminate any control the Executive (President) had over it. According to The Corrupt Practices and Other Related Offences Bill 2003, the chairman of the ICPC would now be a serving judge of an appeal court, appointed by the CJN and subject to confirmation by the Senate (Newswatch, 24 March 2003). The consequence was that the then chairman of the ICPC, a retired judge, had to quit his position, and the President was no longer in a position to appoint future chairmen to the commission. The new law also contained other new provisions, such as the one requiring that the commission must inform accused persons that it has received a petition against them or that they are under investigation for corruption. The scope of imposable sanctions (i.e. prison terms), and even the powers of the ICPC, were also dramatically reduced. Clearly, the lawmakers wanted to cripple the commission permanently.
48The actions of the lawmakers did not bring the ICPC to its knees, but their long-term impact was very damaging. While the ICPC was subsequently rescued by an Abuja High Court order, which invalidated the new Act on the grounds that lawmakers did not follow due process in amending the 2000 Act as required by the Constitution, its confidence and capacity was greatly eroded by the actions of the legislature (The Guardian, 9 October 2005). After this incident, it began to shy away from launching ‘high-profile’ investigations. All the leaders of the National Assembly whom it accused of corruption left their posts without being questioned subsequently. The National Assembly had clearly succeeded in intimidating the ICPC. The agency was so intimidated that it began to talk about the need to make its existence (and those of other anti-corruption bodies) a “constitutional requirement” (The Punch, 17 March 2005), to make it more difficult for hostile politicians to repeal the Act.7 Credibility also suffered, to the extent that there were growing calls for the ICPC to be scrapped, or merged with other similar institutions (Onyekakeyah 2006). But despite this compelling evidence of political interference and poor performance, a focus on the ICPC alone cannot reveal the full extent of difficulties involved in the quest to deploy specialised anti-corruption agencies in Nigeria. A more complete view will emerge after evaluation of the activities of the second major anti-corruption institution created by President Olusegun Obasanjo: The EFCC.
The EFCC and the politics of anti-corruption crusade
49On 11 April 2003, President Obasanjo inaugurated a second anti-corruption agency, known as the Economic and Financial Crimes Commission (EFCC). According to information posted on its official website, the EFCC was created to “curb the menace of corruption that constitutes the cog in the wheel of progress; protect national and foreign investments in the country; imbue the spirit of hard work in the citizenry and discourage ill gotten wealth; identify illegally acquired wealth and confiscate it; build an upright workforce in both the private and public sectors of the economy and; contribute to the global war against financial crimes”.8 In other words, the EFCC was created to fight corruption, among other crimes.
50The establishment of yet another anti-corruption commission can easily lead to the conclusion that Nigeria’s problem of corruption and financial crimes can best be overcome by the creation of more anti-corruption institutions rather than the strengthening of existing ones. Indeed, in one of his earliest interviews as chairman of the EFCC, Nuhu Ribadu even exaggerated this view a little further by suggesting that “in Nigeria today we need 10 EFCCs, 10 ICPCs for us to make even a meaningful progress” (ThisDay, 4 June 2005). However, the limited success recorded by Ribadu’s men since their arrival in 2003, especially in the area of successful prosecution of corruption-related offences, punctured this argument. While not trying to provide excuses for the lacklustre performance of the ICPC or underestimate the relevance of a second or even more institutions to fight corruption where institutional capacity and political support exist, the experience of the EFCC, at least under Obasanjo, showed that Nigerians must first address the issues of internal institutional capacity (adequate human and material resources), poor judicial environment, and lack of commitment among key political actors – all of which have undermined the effectiveness of existing institutions – if they hope to win the war against graft in the Fourth Republic. Before elaborating these challenges, we will first look at the relative contributions of the EFCC to the war against corruption, particularly in the areas of arrest, investigation, prosecution, and recovery of looted funds or proceeds of crime. These achievements can be best appreciated if placed side by side with the balance sheet of the ICPC.
Comparing the ICPC and the EFCC
51By all standards, the performance of the EFCC under Obasanjo was unprecedented in the history of anti-corruption institutions in Nigeria. In many areas that can be considered as central to financial crime – investigation, prosecution, conviction and recovery of illegally acquired assets – the EFCC has recorded significant successes. For instance, between the time of its creation in April 2003 and October 2005, it received a total of 3,758 petitions, out of which 526 were investigated (The Punch, 23 October 2005). By 2 June 2006, the number of petitions received had reached 5,400, while the number of cases under investigation and prosecution was put at 2,103 and 550, respectively (The Guardian, 2 June 2006). The agency also recorded similar success in the area of loot recovery (cash from banks, buildings and other landed properties within and outside the country, vehicles, ships, aircraft, company stocks, etc.). The total value of what was recovered stood at $5 billion in June 2006. The proceeds usually returned to the victims, such as individuals who had been victims of 419, the well-known Nigerian scam. In one such case, celebrated in the media, $4.48 million taken from a Hong Kong national by fraudsters was returned to the owner on 26 September 2005. In other cases, funds were paid back to the public treasury, especially those seized from former and serving government officials,9 or those recovered from private companies which had defrauded the government,10 in such areas as tax evasion (ThisDay, 2 June 2004). The EFCC also helped to reduce losses in other public institutions, such as in the NNPC, where barrels of crude oil lost to illegal bunkering fell drastically from 110,000 to 3,000 barrels per day, according to official statistics (The Tribune, 2 June 2006).
Table 5.4. Comparative performance of the ICPC and the EFCC
ICPC | EFCC | Total | |
No. of petitions received | 1,846 | 5,400 | 7,246 |
Estimation of funds/assets recovered (in naira) | 3.9 billion | 725 billion (June 2006) | 728.9 billion |
No. of investigations concluded | 80 | 550 | 630 |
No. of persons arraigned | 185 | 300+ | 485 |
No. of persons convicted (2007) | 20 | 145 | 165 |
Note: Except where indicated, these data are valid as at 10 October 2006.
Source: Gashinbaki (2004).
52In the area of arrest and prosecution, more than 3,000 persons were arrested and interrogated between April 2003 and June 2006. Furthermore, by 2 June 2006 there were at least 550 ongoing criminal prosecutions (Vanguard, 2 June 2006). The list of those prosecuted included at least one governor (Alamieyeseigha of Bayelsa State); a former President of the Senate and some of his colleagues; a former Inspector-General of the Nigerian Police; ministers (at state and federal levels); chairmen and managing directors of banks, private companies, and public parastatals or corporations; local government chairmen; businessmen; high-profile fraudsters; and common criminals. The list of convictions was also impressive, standing at 20 in November 2005, 35 in April 2006, and 55 on 2 June 2006 (ibid.). The figure rose to 82 in August 2006. The relative success of the EFCC was not unconnected with the scope of its powers but also the commitment of its leadership and staff. In many ways, however, it was also a function of the availability of resources,11 made possible by international pressure and support (The Guardian, 11 October 2006; The Punch, 26 November 2005). Table 5.4 shows a comparative index of performance of the two anti-corruption bodies.
53But despite this level of achievement, the EFCC was widely criticised, even much more so than the relatively underperforming ICPC. The major source of criticisms was, firstly, that the agency was selective in its fight against corruption in the public sector, in the sense of going after only those that were perceived as not being in the good books of the powers that be. Secondly, the EFCC was also harshly criticised for its tendency to violate fundamental human rights. This second criticism became much more pronounced when information emerged that one of its high-profile detainees, Maurice Ibekwe, a member of the Federal House of Representatives, had died in its custody (ThisDay, 23 March 2004). Thirdly, and perhaps more disturbingly, critical review of the list of convictions secured by the EFCC shows that the agency had very little success in prosecuting senior public officials, the brains behind much of the Nigerian corruption story. Most of those convicted were non-public officials.
54One of the EFCC’s first major convictions was secured on 6 June 2005, when a former bank chairman (Fidelity Bank Plc.) and owner of a stock-brokerage firm (Thomas Kingsley Securities), Kingsley Ikpe, was sentenced after a nine-month trial to a total of 153 years in prison, without option of fine, on 39 counts of stealing and falsification of documents. His prosecution began in August 2004, following a petition from one of his clients, who accused him of fraudulently receiving N135 million from the client under pretext of procuring for him some shares in Nigeria Breweries Plc., a brewing firm based in Lagos (ThisDay, 7 June 2005). Mr Ikpe was also ordered to pay N61 million in damages to his client and N7.55 million in fines to regulatory authorities for the offences he committed between May 2002 and September 2003.
55Another major conviction came on 15 July 2005. This involved one Mrs Amaka Anajemba, who was arrested and detained by the EFCC in January 2004 for participating in a financial scam which cost a Brazilian bank some $242 million, leading to its collapse. After a 12-month trial, Mrs Anajemba was sentenced to two and a half years in prison, following a plea bargain. Mrs Anajemba was also ordered to forfeit assets estimated at N3 billion and pay a further $25 million as restitution to the victims, excluding $5 million and N2 million in fines to the government of Nigeria. Mrs. Anajemba was not the ‘principal accused’ in this case; she was said to have taken part and benefitted from the crime by virtue of her marital connections. Her husband, Ikechukwu Anajemba, one of the principal accused, died before the trial commenced.
56On 17 November 2005, Emmanuel Nwude, a wealthy businessman and owner of several companies, and Nzeribe Edeh Okoli, two of the other principal actors in the $242 million Brazilian scam, were jailed for a total of 25 (5 counts of 5 years each) and 12 years (3 counts of 4 years each) respectively, by a Lagos court. Nwude was ordered to forfeit several fraudulently acquired assets, including 14 houses (situated in the states of Lagos, Abuja, Enugu, Anambra, Rivers, and in London), six luxury cars, and more than 100 million units of shares acquired in some local banks and other companies. He was also ordered to pay $110 million as restitution to the victims of the crime and a further $10 million in fines to the Nigerian government. The second convicted, Nzeribe Edeh Okoli, for his part, was ordered to forfeit several landed properties, including a petrol station under construction and an undisclosed number of buildings in his home state of Enugu. In addition, he was also forced to part with three of his companies (Emrus, Ocean Marketing, and African Shelter Bureau), which were to be liquidated by the state, and pay $11.5 million to the federal government in fines (ThisDay, 18 November 2005). The trial of both individuals, which started on the 23 July 2004, was concluded within 15 months.
57But while the EFCC was successfully prosecuting high-profile private individuals on fraud-related charges, it consistently failed to do so with members of the political class, whether appointed or elected. What explains this discrepancy? Does this mean that it has been too afraid to take on the ‘big political fish’? Or was it a deliberate strategy? On the contrary, the EFCC had consistently placed this group of citizens at the centre of its operations, arguing that the political class is the major cause of the endemic corruption that has held Nigeria down for decades. The problem, however, was that taking on members of the political class required not only substantial institutional capacity but also a considerable amount of political support. Just as in the case of the ICPC, this support was largely non-existent.
58To backtrack for a moment: At the time it was created, the EFCC did not elicit the kind of strong reaction that greeted the birth of the ICPC. This was in spite of the overwhelming, some say draconian, powers that were given to it. Ironically, the same legislators that held up the ICPC Act for over a year rushed back from their Christmas holidays to consider and pass the bill on the EFCC into law within days without any significant change to the original bill presented by the Executive. Outside the threat of international sanctions (by the FATF), which had played a decisive role, these legislators, and Nigeria’s political class by extension, never considered the EFCC as a potential threat. The EFCC and its enabling Act were, as we noted earlier, essentially regarded as instruments specifically designed for individuals outside the political class, such as the ‘419-ers’ and fraudsters in the banking sectors. This understanding pushed the Speaker of the House of Representative, Ghali Umar Na’abba, to argue that “the EFCC was meant to fight 419 and money laundering, and not corruption in public places, which is, according to him, the duty of the ICPC” (ThisDay, 6 February 2006). This was also the general view among the public.
59But soon after its creation, the EFCC gradually began to refashion itself, taking advantage of its almost draconian enabling legislation. This move, as it should be expected, brought it into a head-on collision with the political class, helping to expose the limits of institutional capacity and political backing for the war against corruption available in Nigeria. The inefficiency of the judiciary also did not help matters.
The judiciary as a drag on the EFCC’s capacity
60According to the EFCC’s chairman, Nuhu Ribadu, Nigeria’s inefficient judicial system is by far one of the most important obstacles to the effectiveness of the EFCC (Ribadu 2004), which explains the limited number of convictions secured. As at October 2005, the EFCC had won only 20 convictions, arising from over 300 prosecutions, launched in various courts (Lagos, Abuja and Kaduna), in spite of 3,758 petitions received and 526 investigations concluded (The Punch, 23 October 2005). As we have noted already, the EFCC’s record of conviction rose to 82 in June 2006. Apart from hiding the fact that very few outside the private sector are included in that list, 82 convictions was still a dismal record in seven years, especially in a country with such a high incidence of corruption as Nigeria. Indeed, in countries with similar institutions, but with far more people and comparatively lower levels of corruption, such as Hong Kong (Klitgaard 1988), Botswana (Kawana 2001), or even Zambia (Doig et al. 2005), anti-corruption agencies were known to have achieved far better rates of conviction (see Tables 5.5 to 5.7). In Zambia, for instance, 5,841 petitions were received, 334 criminal prosecutions launched, and 91 convictions won within a period of four years (1997-2001). In Hong-Kong, the figure was even higher. Over a period of four years (1999-2003), 21,108 petitions were received and 2,672 pursuits initiated, out of which 302, 309, and 217 convictions were won in 1999, 2002, and 2003, respectively. How did the judiciary impact on the performance of the EFCC?
61One way in which the criminal justice system impacted negatively on the operations of the EFCC and slowed down the rate of conviction is the exercise of constitutional immunity by the heads of governments, particularly the 36 state governors. The question of constitutional immunity has already been dealt with in relation to the performance of the ICPC; thus, a detailed analysis is unnecessary here. It suffices to say, however, that like the ICPC, the EFCC’s attempts to probe and jail these functionaries were equally frustrated by their immunity against arrest and prosecution. Joshua Dariye of Plateau State and Diepreye Alamieyeseigha of Bayelsa are good examples. Both were accused of massive corruption by the EFCC, but for a long time could not be prosecuted owing to their constitutional protection. The prosecution of the latter was launched in December 2005, after he was impeached by legislators of his own state, who were compelled to act following his arrest in London on money-laundering charges. Governor Alamieyeseigha was subsequently convicted by a Lagos court for corruption and money laundering. Like Mr Alamieyeseigha, Governor Dariye of Plateau was also arrested for money laundering by the London police and managed to return to Nigeria in violation of his bail conditions. But unlike the former, he remained in office as governor for over two years without being charged with any offence. When pressure from the EFCC on his state’s legislators to impeach him became unbearable, Dariye simply disappeared. Governor Ayo Fayose of Ekiti State also took the Dariye option after he was impeached by state legislators for allegedly looting over a billion naira in public funds. Just like Dariye, his immunity served as a cover for him to escape justice.
Table 5.5. Performance index of the Independent Commission against Corruption of Hong Kong (1999-2003)
Year | Petitions received | Investigations completed | Prosecutions launched | Convictions won |
1999 | 3,561 | 2,453 | 504 | 302 |
2000 | 4,390 | 2,993 | 608 | NA |
2001 | 4,476 | 3,093 | 535 | NA |
2002 | 4,371 | 3,516 | 604 | 309 |
2003 | 4,310 | 3,185 | 421 | 217 |
Total | 21,108 | 15,240 | 2,672 | NA |
Source: Hong Kong (1999-2003).
Table 5.6. Performance index of the Directorate on Corruption and Economic Crime (DCEC) in Botswana (1994-2001)
Year | 1994-1996* | 1997 | 1998 | 1999 | 2000 | 2001 | Total |
Petitions received | 2,528 | 1,511 | 1,525 | 1,023 | 1,475 | 1,841 | 9,903 |
Investigations completed | 536 | 675 | NA | 382 | 233 | 503** | NA |
Prosecutions launched | 141 | 173 | NA | NA | NA | 46 | NA |
Convictions won | 59 | NA | NA | 23 | 20 | 24 | NA |
* The DCEC began work in September 1994.
Source: DCEC (1994-2001).
Table 5.7. Performance index of the Zambian Commission against Corruption (1997-2001)
Year | Petitions received | Investigations launched* | Prosecutions launched | Convictions won |
1997 | 865 | 495 | 69 | 5 |
1998 | 1,485 | 538 | 63 | 29 |
1999 | 1,325 | 460 | 100 | 30 |
2000 | 1,263 | 403 | 49 | 10 |
2001 | 903 | 392 | 53 | 17 |
Total | 5,841 | 2,288 | 334 | 91 |
* Available data on the Zambian Commission Against Corruption did not contain information on investigations completed.
Source: Doig et al. (2005).
62Apart from constitutional immunity, which was enjoyed by only a handful of officials anyway, other legal loopholes connected to the Nigerian judicial system also had a negative impact on the anti-corruption work of the EFCC. These included Sections 35(2) and 36(11) of the Nigerian Constitution. Nuhu Ribadu, then EFCC chairman, gave a full account of the relationship between these provisions and the war against graft:
Section 35(2) gives a right to any person arrested or detained to remain silent or avoid answering questions until after consultation with his/her lawyer. Section 36(11) also provides that any person tried for a criminal offence shall not be compelled to give evidence at the trial. When the rights are claimed, they may at times lead to over-protection of the accused person while restricting the means of protecting the rest of the society in the sense of making it difficult to prove a case against them. (Ribadu 2004: 6)
63In political systems where there are very experienced investigators and prosecutors and an efficient judiciary, an accused’s refusal to talk may not necessarily pose such an insurmountable obstacle. But a lack of institutional capacity in Nigeria has ensured that this refusal has posed a significant problem to the anti-corruption institutions.
64A more serious obstacle, however, was the inadequacy of the law known as the Evidence Act, which regulates what can be accepted as exhibits in the courts and what cannot. Part of Nigeria’s colonial legacy, the Evidence Act was enacted by its colonial masters for an agrarian and pedestrian society. In recent times, it has become grossly inadequate to cover the present advancement in technology with the concomitant sophistication employed in the commission of economic and financial crimes. The legislation did not, for example, anticipate the arrival of new technologies: Computers, the internet, fax, mobile telephone, credit cards, etc., now widely used in the conduct of financial frauds. The presence of such technical loopholes has been successfully exploited by accused persons and their lawyers, to the detriment of prosecutors.
65While the Nigerian judiciary has often been criticised for being either too slow or too lenient on individuals accused of corruption, thereby contributing to the current atmosphere of systemic corruption, the fact remains that judges are mere interpreters of law and not makers of law. Anti-corruption laws, like all laws, are made by politicians, who also retain the powers of amending them when they become obsolete or ineffective in achieving their original goals. Unfortunately, politicians that thrive on graft have no incentive to pass laws that have the potential of undermining their positions – unless, of course, a law is targeted at political opponents. If for any reason such legislation is passed, perhaps unintentionally and involuntarily as was the case with the EFCC Act, we can expect these politicians to move to hobble its effective implementation. The politicisation of the EFCC’s activities by Nigerian politicians, which we discuss in the next section of this chapter, can be understood within this context.
The politicisation of the anti-corruption war: The EFCC and the 2007 elections
66Any close analysis of the EFCC’s record will reveal one glaring anomaly: An apparent difficulty in obtaining conviction of political figures, whether appointed or elected, serving or retired. This is in spite of the preponderance of this group in the anti-graft body’s investigations. Many people in Nigeria will easily point to the fact that political elites are often wealthy people, who can afford to hire the best lawyers and wage protracted legal battles with anti-corruption agencies. In a judicial system riddled with technical loopholes, it is not difficult to see why these individuals often escape justice. Yet, this is not the only explanation. Another part of the explanation is that Nigerian governments at all levels have a historical bias towards ‘big men’ in general, and ‘political notables’ in particular, in terms of willingness to apply sanctions. To begin with, existing legislation often displays discriminatory sanctions, such that sanctions imposable for large-scale corruption (the domain of politically powerful persons) can sometimes be relatively mild compared with those prescribed for the relatively minor offences usually committed by ordinary criminals. Even the discovery of large-scale fraud committed by a ‘powerful man’ is never a guarantee that sanctions will follow. The individual, if well-connected, can often be provided an escape route or what is commonly referred to as a ‘soft landing’ or ‘political solution’ in Nigeria. The process typically involves some form of subterranean negotiations or lobbying, spearheaded by ‘concerned friends’ or ‘elders’, usually made up of traditional rulers and leading politicians from the community of the accused (Adekoye 2005; The Punch, 7 April 2005). When this is successful, the ‘soft landing’ or ‘political solution’ can take the form of total clemency or, where that is not politically feasible, a light sanction which will then be followed by a gradual process of political rehabilitation.
67Examples are not difficult to find. During the regime of General Ibrahim Babangida (1985-93), a number of political figures indicted for corruption during probes or judicial trials carried out by previous regimes, notably those of Generals Murtala Mohammed (1975-6) and Mohammadu Buhari (1984-5), were pardoned and rehabilitated with attractive political appointments. One example was General Samuel Ogbemudia, who was indicted as military governor of former Midwestern State for serious financial malpractices by an ‘Assets Investigation Panel’ set up by General Mohammed, but was pardoned and later appointed as chairman of Nigerian Railway Corporation (Nwankwo 1999: 56). Similarly, Seaka Miner, a former Secretary to the Military Government in Benue State, who was indicted by another commission of inquiry for massive diversion of funds in the period 1968-75, to the extent of being declared “unworthy of occupying a public post”, was also rehabilitated by Babaginda, who appointed him chairman of a public bank, the Nigerian Merchant Bank (ibid.: 57).
68This practice continued under the Fourth Republic, despite the declared war against corruption. As we have already noted, in 1999 the Speaker of the House of Representatives, Salusi Buhari, was forced to resign his position, paving the way for his arrest and conviction (for two years with an option of fine) by an Abuja court for falsifying his age and academic records, which had enabled him to contest and win election as a member of the lower house of the federal legislature. But after a few years, Mr. Buhari was granted a presidential pardon (obviously after some subterranean negotiations), paving the way for his appointment in 2005 as a member of the board of the Nigerian Educational Research and Development Council. Mr Buhari was known to have played a crucial role during the election of President Olusegun Obasanjo in 1999, and after that remained a loyal and influential member of Obasanjo’s party, the PDP. In yet another example, Chris Ekpenyong, a former deputy governor of Akwa Ibom State, who was forced to resign his position following the commencement of impeachment proceedings against him by his state’s house of assembly, for “gross misconduct and abuse of office”,12 was also rehabilitated with the chairmanship of the Federal Tourism and Hospitality Board (The Guardian, 2 September 2005). These are only a few examples of a practice that has become well institutionalised at all levels of government in Nigeria.
69One achievement upon which the EFCC regularly prided itself was the demystification of the concept of the ‘big man’ who is above the law. The most visible evidence of this achievement was the successful prosecution by the EFCC of former Inspector General of Police, Tafa Blogun, on 21 November 2005. Mr Balogun, a former boss of the EFCC chairman, was convicted by an Abuja court for offences linked to the embezzlement and laundering of police funds in excess of N18 billion, in violation of the EFCC Act. Ironically, the Balogun case did more to confirm the important place of the ‘big man’ in Nigeria, a kingdom where “some animals are more equal than others” (Jason 2005). Mr Balogun not only obtained a “negotiated retirement” (ThisDay, 20 January 2005); he received what amounted to little more than a slap on the wrist. After being arraigned on 56 counts, Mr Balogun ended up being convicted for the lightest of offences: Concealing vital information from the EFCC over his alleged business concerns and interests in some companies amounting to over N17.7 billion, in violation of the EFCC Act, for which he spent only six months in jail and paid half a million naira in fine (ThisDay, 22 November 2005). This was consequent upon a ‘plea bargain’ between Balogun and the EFCC. According to the latter, the decision to abandon other weightier charges, including the embezzlement and laundering of over N18 billion, was to “minimise the cost of prolonged litigations” and also to escape an unknown outcome (ibid.).
70The Balogun case, therefore, clearly underlined the lack of confidence in the capacity, effectiveness, and integrity of the judiciary in Nigeria. But more importantly, it also showed the wide scope for manoeuvre open to politically influential individuals in the country. However, a political solution or soft landing does not tell the whole story about the impact of local politics on the attempts to fight corruption. What do individuals, who for any reason (such as membership of rival political factions) fail to procure a political solution or soft landing, do when they are indicted for corruption? Nigerian political elites have other ways of undermining any attempt to scrutinise their records while in office. Politicisation of the work of the anti-corruption organs in order to weaken such bodies and protect oneself from imminent sanction was one of the most frequently employed options (Ribadu 2006: 6). As preparations for the 2007 elections drew near in the last few years of Obasanjo’s rule, this politicisation took two worrying dimensions.
71The first was the subtle but increasingly apparent instrumentalisation and manipulation of anti-corruption agencies, particularly the EFCC, by the government. The main goal was to undermine political enemies or rivals, while at the same time protecting supporters of the government (ruling faction of the government in power) from sanctions. This move was greatly facilitated by the fact that, quite unlike the ICPC Act, the EFCC law did not insulate the EFCC chairman from the influence of appointing authorities (i.e. the President).13 Thus, it was not uncommon to hear the President ordering the EFCC to investigate this or that person, and to see the EFCC submit reports of such investigation to the President instead of going straight to the courts. In such a system, one can expect that enemies of the administration will more easily be prosecuted, just as friends or supporters of the regime will be handled with kid gloves.
72To cite just one example among very many cases: Following relentless allegations of massive corruption, particularly in the awarding of contracts, in one of Nigeria’s richest public institutions, the Nigerian Ports Authority (NPA), President Olusegun Obasanjo inaugurated a Committee on the Review and Verification of Contracts Awarded by the Nigerian Ports Authority for the period 2001-3. The panel was inaugurated on 1 April 2005 with Nuhu Ribadu, the EFCC chairman, as the head. The report of this panel confirmed that the managers of the NPA, including its board, were guilty of various corrupt practices, including refusal to observe existing financial regulations, inflation of contracts, payments for fictitious contracts, purchase of items that had no relevance, and mismanagement of funds (notably pension funds), which cost the NPA billions of naira. To quote the report submitted by the EFCC head:
All contract approving authorities in NPA, including the Board and Management of the NPA, Managing Directors, Executive Directors, General and Ports Managers, other categories of approving authorities, as well as the appraising officers who served during the period under review should be held responsible for deliberate and flagrant violations of extant government rules and regulations, governing the award of contracts (and) … appropriately sanctioned for contract splitting and inflation of contract price in utter disregard to laid-down government rules and regulations. (cited in Sunday Punch, 5 March 2006)
73What was the government’s reaction to such flagrant disregard of its anti-corruption policy? Contrary to the expectation of many people, the government simply rejected the report for being “inconclusive” and asked that it be reviewed by the EFCC. The outcome of this review was never made public. Moreover, up until the day Obasanjo left office, no action had been taken against the indicted officers.14 The handling of this particular case raised many questions about the government’s preparedness to sacrifice its allies when they are fingered in corrupt deals. It should be borne in mind that the chairman of the NPA at this time, Bode George, also doubled as the vice-chairman of the ruling PDP, in addition to being a key ally of President Obasanjo.
74Allegations that the anti-corruption policy was being misused or being selectively applied are again confirmed by another incident which occurred in 2006. In the middle of 2006, the local media was flooded with allegations that huge sums of money (between N50 and 200 million, according to some sources) were being paid to members of the National Assembly through some local banks, based in Abuja, by Obasanjo’s foot soldiers. The payments were allegedly made to secure the support of the lawmakers, who were considering a constitutional amendment bill, which among other provisions sought to extend the tenure of President Obasanjo. Faced with relentless public criticism, the President directed the EFCC to investigate the allegations. When it had completed its investigations, however, the EFCC said it could not substantiate the claims (Reuters, 16 May 2006).
75While the government’s penchant for ignoring the malfeasances of its closest allies has contributed greatly to undermining the effectiveness of anti-corruption agencies such as the EFCC, the government has not been the sole actor in this politicisation of the anti-corruption war. Members of the political opposition also did much to politicise the war against graft. When politicians in opposition point to the massive corruption by those in power and the selective application of sanctions, which is likely to be true anyway, they do this not necessarily out of any principled opposition to corruption. Often they do so to cleverly position themselves as a credible alternative to those in power, or more commonly, to discredit those who are accusing them of corruption in order to avoid possible arrest and prosecution.
76During the period under review, it was very common to hear members of the opposition, especially those who were positioning themselves for the 2007 elections, say that the anti-corruption drive being conducted by Obasanjo was nothing but a weapon to intimidate and eliminate political rivals or enemies, especially those who were opposed to his failed attempt to obtain a third term in office. This argument was not completely without its merits. As a matter of fact, the EFCC head had at least on one occasion openly stated that both himself and his institution were committed to depriving ‘corrupt politicians’ the chance of using the 2007 elections as an avenue for returning to power15 (Daily Trust, 26 May 2006; The Guardian, 8 September 2006). The truth, however, was that politicisation of the anti-corruption campaign was driven by political calculations on both sides of the political divide. No case illustrated this paradox better than the bitter political pitched battle which took place between then Vice-President Abubaka Atiku and his boss, President Olusegun Obasanjo, in 2006-7.
77The quarrel between Vice-President Abubakar Atiku and President Olusegun Obasanjo came into the open in 2006 when Atiku declared himself a candidate for the 2007 presidential election, apparently without the approval of Obasanjo. However, Abubakar Atiku had been at loggerheads with Obasanjo since well before 2006. According to media sources, their quarrel started just after the 2003 election, when both were re-elected for a second term of four years in a highly disputed election. Atiku was said to have betrayed his boss by nursing a secret ambition to stand against him in that election. He was said to have dropped his plans only at the last minute when it became apparent that the plot would not succeed. Matters grew worse between the end of 2005 and early 2006, when Atiku refused to endorse Obasanjo’s bid for a third term in office, choosing instead to ally himself with members of the opposition, who were mobilizing against the third term project (Ndibe 2006). Obasanjo, of course, lost his much-cherished third term bid but not without a word for his deputy. On several occasions, he had, even without mentioning Atiku’s name, left no one in doubt about his determination to scuttle his deputy’s presidential ambition. What other weapon could be deployed to achieve this goal but the anti-corruption war?
78On 24 August and 26 September 2006, Vice-President Abubakar Atiku was indicted by the EFCC and an administrative panel instituted by the President, respectively for “abuse of office” and “diversion of public funds to companies controlled by friends and business associates” (ThisDay, 7-8 September 2006). The importance of this indictment will become clearer when viewed within the context of Section 137 (1)(i) of the 1999 Constitution, which provides that
[A] person shall not be qualified for election to the office of President if he has been indicted for embezzlement or fraud by a 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 government respectively. (Federal Republic of Nigeria 1999a)
79Contrary to the administration’s own established practice, the reports of both commissions were immediately accepted and gazetted by the government, further underlining the extent of political stakes involved in this case.
80While Atiku’s culpability may not have been conclusively established by his indictment by these commissions, established and controlled by his accuser, his subsequent response only served to reinforce our hypothesis that accusations and counter-accusations of corruption launched by politicians are mainly intended as weapons to discredit political opponents and/or avoid arrest and prosecution for corruption. For while the Vice-President consistently denied the allegations – which one of his spokesmen called “lies, fabrications, evil machination and contrived attempt to stop him from the 2007 election” (Daily Independent, 13 September 2006) – Atiku, as should be expected, did very little to prove his innocence. Instead, he spent much of his capital trying to prove that the President, his supposed accuser, was equally corrupt if not more corrupt. After the publication of the reports which indicted him for corruption, Atiku released scores of very embarrassing documents, including photocopies of bank cheques, bank statements, receipts, and even official documents, to press home his point that the President was equally engaged in corrupt practices (ThisDay, 12 September 2006). This strategy proved very successful for Atiku from the point of view of public opinion, hardened by very disturbing allegations of corruption against the President (Ajaero 2006). The Vice-President was widely portrayed as a victim of ‘political victimisation’, in a complex web of political struggle in which the anti-corruption campaign was a mere political resource.
81Other political figures accused of corruption immediately took a cue from the Vice-President, thus adding to the crisis of credibility already rocking Nigeria’s most powerful anti-corruption agency. Sooner or later, it became the standard practice to portray every accusation of corruption as the creation of political opponents, especially the government of the day, seeking to undo political enemies ahead of the 2007 elections. These types of allegations, according to such views, were undeserving of any serious attention; therefore, those who were accused of corruption did not need to defend themselves against specific allegations. It became more rewarding to blame the government for witch-hunting its political opponents. But what was the cumulative effect of such behaviour on Nigeria’s war against corruption? Politicians largely succeeded in moulding public opinion to see anti-corruption organs as ‘mere political tools’. In the end, despite its relative success, the EFCC, just like the ICPC, had to occupy itself not only with the war against corruption, but also with a battle to preserve its reputation, tarnished by the activities of a corrupt and obstructive political class.
Conclusion
82At the time of their inauguration, Nigeria’s new anti-corruption commissions, especially the ICPC, were widely considered as crucial actors in the country’s fledgling fight against corruption. This perception was partly informed by an awareness of the relative success of similar organisations in other parts of the world (notably Hong Kong and Singapore). However, after several years of their existence, these institutions failed to make as much impact as anticipated and, therefore, justify their existence. Despite their determined efforts to investigate, arrest, and prosecute corrupt elements within the government and civil society, corruption did not cease, nor were there signs suggesting that Nigeria’s corrupt politicians and public officials were going to be deterred. On the contrary, several challenges surfaced which undercut the impact of these institutions, notable among them being legal loopholes in their establishing laws, insufficient funding and manpower, Nigeria’s slow and inefficient judicial system, and most importantly, successful attempts by politicians at politicising the work of these agencies, resulting in a crisis of legitimacy for them.
Notes de bas de page
1 The first major attempt in this regard was made in 1984 by the Muhammadu Buhari regime (1984-85). This effort, however, suffered a major setback when the regime was displaced from power after only 18 months in office. Prosecutions of corrupt officials were replaced by a gradual institutionalisation of corruption by the regimes of Ibrahim Babangida and Sani Abacha.
2 Those charged included a High Court judge, a prominent lawyer (senior advocate of Nigeria), chairmen of private and public companies, heads of government parastatals and local councils, some director-generals and permanent secretaries, ministers, former governors, senators, and a former Senate president.
3 Nuhu Ribadu, the EFCC chairman, estimated that it costs between N5 and N10 million to prosecute a major fraud case (Ribadu, 2004).
4 These officials had actually traced their problems to a “certain ex-commissioner” who was dismissed for fraud by the state government. Determined to get back his own pound of flesh, this individual was said to have sent a petition to the ICPC and distributed forged documents on the acquisition of the controversial property, with the aim of discrediting the state government. This was during the period leading to the run-up to the 2003 general elections.
5 At this time, the ICPC had already forwarded the dossiers of 15 governors indicted for corruption to the CJN.
6 The NJC in fact wanted to exclude criminal and electoral offences from the cover of constitutional immunity.
7 This view was strongly canvassed by the ICPC during the National Political Reform Conference, which took place in Abuja between February and May 2005.
8 www.efccnigeria.org
9 This included, for example, the £3 million retuned by Britain as part of the Abacha loot and more than N17.7 billion recovered from convicted former police boss, Tafa Balogun.
10 The recovered funds includes those recovered by the Federal Inland Revenue Service and initially lost through tax evasion by private firms, such as the N80 million paid by Halliburton in 2004.
11 In November 2005, the EFCC received 24.7 million euros (or N3.8 billion) from the European Union. The funds were to “provide the EFCC with required equipment and technical support, further improve the knowledge of the agency’s staff through training, in-country and overseas, as well as to strengthen the capacity of the judicial system to handle economic and financial crimes”. The total financial assistance from the EU was put at $32 million (or N4.16 billion) in October 2006.
12 Specifically, the allegations against Mr Chris Ekpenyong included “diversion of public funds to purchase a family house in Texas, United States … failing to declare his assets to the Code of Conduct before assuming office … influencing the diversion of contract awards to his numerous companies and fronts, etc.” (The Guardian, 2 September 2005).
13 Indeed, Section 43 of the EFCC Act provides that “the Attorney-General of the Federation may make rules or regulations with respect to the exercise of any of the duties, functions or powers of the Commission under this Act”. More importantly, Section 3 (2) states that “a member of the Commission may at any time be removed by the President for inability to discharge the functions of his office (whether arising from infirmity of mind or body or any other cause) or for misconduct or if the President is satisfied that it is not in the interest of the Commission or the interest of the public that the member should continue in office” (ECCC Act 2004 op cit.).
14 The indicted officials were, however, later arraigned and convicted for corruption under President Umar Yar’Adua, Obasanjo’s successor in office.
15 In one statement the EFCC boss boasted that “[w]e are going to work and work across and we will cover all areas and directions. For example if you are in public office today and you want to seek re-election, we will check your assets declaration. When you resumed office you declared your assets. Today we know what you have. You cannot deceive anybody, we know what you have. If we see anything that you cannot explain, then we take you through the justice process and therefore I think such a person is unfit to hold public office again. We are going to charge such people to court”. In another forum he stressed: “For what we are doing to succeed, we won't allow those who stole money to come and compromise the process (elections) … By fighting corruption, you are likely going to eliminate such people” (Daily Trust, 26 May 2006; The Guardian, 8 September 2006).

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