What is needed to salvage Nigeria’s shambolic anti-corruption fight?

With the recent dismissal of the asset declaration case against the Senate President, Bukola Saraki, not many people are still optimistic that the anti-corruption fight of this administration will still bear much fruit. The two-man panel of the Code of Conduct Tribunal did not even deem it necessary to call the Senate President to enter his defence as it unanimously upheld the no-case submission filed by the Saraki. According to the Chairman of the CCT, the evidence adduced by the prosecution was “so unreliable that no reasonable tribunal could convict” anyone based on it.

Saraki’s acquittal is the latest in a series of high profile corruption cases the government has lost or bungled in the last two years. The most painful part is not even that the cases are lost but the way the judges dismiss the cases. Just like in Saraki’s case, most of the judges do not even bother to call on the accused to enter their defence. They just simply uphold the “no case” submissions of the accused after the prosecution had laboured in vain, over many months or years, trying to prove their cases. Justice Jude Okeke, in dismissing the case against Justice Ademola, his wife and Joe Agi, spoke the minds of many judges who handle cases of corruption in Nigeria when he advised prosecution agencies to “ensure proper investigation of matters before proceeding to court” and that “the court of law cannot rely on mere speculations to condemn any defendant”.

True, our anti-corruption agencies are so weak and lack the capacity to successfully prosecute corruption cases. Shoddy and lazy investigation and incompetent prosecution often combine to scuttle many of such cases. Besides, the corrupt often fight back, according to acting president Osinbajo, with tremendous resources by spending lavishly on “Ogbologbo lawyers” to outwit clueless prosecutors.

But the weakness and incapacity of our anticorruption agencies alone do not explain the failure to successfully prosecute corruption cases. As Olu Fasan, one BusinessDay’s most incisive columnist argued, “…all over the world, corruption is notoriously difficult to detect and successfully prosecute.” The main reason being that “the legal principle ‘He who asserts must prove, not he who denies’ puts excessive legal and evidential burden on the prosecution and allows the accused, who usually have unlimited resources, often stolen money, to frustrate the prosecution. And, of course, the court is limited to the evidence adduced by the parties, and can’t inform itself by adducing its own evidence. It must come to a decision, even if the evidence is inadequate or inconclusive. In these circumstances, the prosecution that can’t adduce probative evidence to prove to its case will lose out.”

But we cannot just shrug our hands and lament. Corruption is one of the greatest impediments to development and until it is successfully stopped or curtailed, we cannot successfully fight poverty, diseases and other by-product of underdevelopment. The respected columnist, lawyer and political economist therefore proposes a reversal of the burden of proof in corruption cases “so that where someone is accused, say, of receiving a bribe or of being in possession of unexplained wealth, the onus is on the accused to prove that he or she is not guilty of the offence.”

Of course, that proposal isn’t entirely new. As he pointed out himself, quite a number of countries – both developed and developing – have successfully reversed the burden of proof with positive results. The overriding consideration is the “prevalence of corruption worldwide and the difficulty of proving intention, even where the circumstances are strongly suggestive of criminality.”

I am neither a lawyer nor a legal expert and do not readily comment on matters I’m not very conversant with. But if I must air my views, I think this proposal, while persuasive and logical, will be very problematic in Nigeria and will create more problems than it is meant to solve. While the weakness and incapacity of prosecutorial authorities is often cited for the loss of most of these cases, a nuanced reading of events will reveal a different story – the lack of political will to ruthlessly and dispassionately fight corruption in Nigeria. This, for me, accounts for the failure of our various anti-corruption wars since 1999 and not the weakness or incapacity of prosecutorial agencies.

For instance, it was clear from the outset that the arraignment of Saraki at the CCT was for purely political reasons. While being arraigned at the CCT, the Senate president was subjected to a harsh and rigorous media trial as well as adverse public opinion to force his resignation or impeachment. To further drive the pressure, both the Senate President and his deputy were arraigned in court for forging the order rule book of the Senate. But once the goal of removing him from office wasn’t achieved, the government virtually abandoned the cases. While it discontinued the case on forgery of Senate rule book, the one at the CCT was allowed to continue but prosecuted shoddily. Certainly, only one outcome was possible.

Perhaps, the most perplexing of the cases was the one against the former minister of Niger Delta, Godsday Orubebe, who was accused of diverting N2 billion. It was an embarrassed Attorney General that confirmed that the N1,965,576,153.46, which Orubebe allegedly diverted, “has not been expended, but is awaiting further contract decisions and directives from the ministry of Niger-Delta Affairs”. It was obvious that the trial was a phantom one.

We know from history that the real cause of corruption is the absence of a real and capable state. However, in the fight against corruption in Nigeria, the emphasis is not on the creation or building of a capable state (strong institutions as well as institutions of restraints) but on the enactment of laws and creation of agencies that are still subject to the whims and caprices or in the Nigerian parlance “the body language” of the ‘big man’, who use the agencies to prosecute his political battles. Obasanjo was most famous for this.

Nigeria, just like Uganda and many other African countries claiming to fight corruption, may just be engaged in what Harvard’s Ricardo Hausmann terms ‘isomorphic mimicry’ – the creation of institutions that act in ways to make themselves “look like institutions in other places that are perceived as legitimate,” but which in reality are not. Nigeria’s anti-corruption war thus far involves the use the media to demonise, to persecute, and to destroy people’s personal and political capital and has nothing to do with rooting out corruption in the country. Surely, no one will suggest that the burden of proof be reversed in such a polity!

Christopher Akor