Economic crime and the rule of law (part 2)
Former World Bank President Paul Wolfensohn famously likened it to a cancer that literally consumes the soul of nations: “Corruption is the largest impediment to investment. And it is not just a theoretical concept…It becomes clear when people die from being given bad drugs, because good drugs have been sold under the table. It becomes clear when farmers are robbed of their livelihoods.”
It is well-known that economic crime retards human development. When public officials steal funds targeted at social programmes such as education and health, they rob ordinary people of the opportunity to improve their life-chances. Where there is corruption there you will also find poverty, income inequality, illiteracy and poor health. And where corruption is at a minimum, there you will find improved livelihoods, knowledge, better health and improved well-being.
According to the World Economic Forum, there is an inverse correlation between corruption and national competitiveness. By national competitiveness we are referring to the set of institutions, policies and factors that determine a country’s level of productivity. It seems clear that national competitiveness and corruption do not make easy bedfellows. One has to give way for the other.
There is empirical evidence that corruption undermines the efficiency of the free market economy. In an ideal world, markets working with undistorted price signals enable individuals to choose the products and services that best satisfy their needs. This is the working of Adam Smith’s ‘invisible hand’. Corruption is a disease that cripples the free workings of the invisible hand. Those who believe that corruption is to be accepted in developing countries if it oils an otherwise creaking system will have to think again.
Economic crime and corruption also undermine democracy, distort markets, increase risk in commercial dealings, scare investors and erode societal trust while undermining equity and fairness. Like cancer, they from organ to organ, eventually infecting every institution of government. Corruption distorts the equitable allocation of wealth in society in a situation where public policies are made not in view of the public good but for the advancement of the narrow selfish interests of ruling elites; affecting everything from services delivery to law and order, environmental degradation and the sanctity of age-old societal norms.
Apart from the economic and social consequences that we have mentioned, corruption corrodes the very soul of society while undermining its moral virtues; sapping the energy of the people and discouraging integrity and honest effort. When young people see that only thieves and robbers are making it, they will be discouraged from honest work and will seek to make it by hook or by crook. We would then have become a land of scoundrels where, according to the Greek historian Thucydides, the “powerful take what they can while the weak grant what they must”.
What the Buhari administration has launched is a call to moral revolution in our country. And as you all know, a revolution is not a dinner party. As the renaissance Italian political thinker Niccolo Machiavelli warned long ago: “And let it be noted that there is no more delicate matter to take in hand, nor more dangerous to conduct, nor more doubtful in its success, than to set up as the leader in the introduction of changes. For he who innovates will have for his enemies all those who are well off under the existing order of things, and only lukewarm supporters in those who might be better off under the new.”
It has been said that all is fair in love and in war. We are at war with corruption. Corruption is a threat to national security. And as it has been famously said, if we do not kill corruption, corruption will kill us as a country. For that reason alone, I am prepared to forgive the excesses of government. Some of the wisest jurists, especially in France where I had some of my education, understand that there are rare exigencies where the state can go the extra mile by necessity of la raison d’état. The Arab-African jurist and philosopher Abuzayd Abdarhaman ibn Muhammad ibn Khaldun al-Hadrami, popularly known as Ibn Khaldun, famously defined the state as that organisation which alone is allowed to commit crime and get away with it. It is a wise definition. Some of the methods used by the current administration in their anticorruption drive may look rather clumsy. Among the Ndigbo, it is said that “a palm tree climber is not expected to tell everything he sees from up above”. As a non-lawyer, I would be worried more about achieving positive outcomes rather than the technicalities of method. What matters, as far as I am concerned, is that we achieve results. Some of the actions have borne positive fruit so far. We cannot lose sight of the fact that there has been some success by way of recovery of trillions of naira from corrupt officials. A new atmosphere is emerging that makes corruption less and less acceptable.
I have great respect for people like Professor Itse Sagay and my old teacher Professor Femi Odekunle whose labours through the Presidential Advisory Committee on Corruption is making a slow but palpable impact. Among the Ashanti of Ghana, it is said that “when a king has good counsellors, his reign is peaceful”. And so it shall be.
Be that as it may, we have to always remember that we are a constitutional democracy. Every public policy must ultimately be subject to the discipline of the rule of law. To catch a thief, you may sometimes have to deploy the devious methods of the thief. But we must never forget the moral virtues that underpin the deontology of the state. I would therefore urge that anti-corruption agencies strive to uphold the constitutional rights of all accused, including respect for the rule of law and due process.
Going forward, it must be made clear that fighting corruption is necessary, but it is not in itself an economic policy. It can only compliment a coherent development strategy to re-boot growth and ensure long-term sustainable development.
I also think that the fire-fighting approach is not quite sustainable. Tackling endemic corruption requires much more than dawn raids by intelligence service officers. And as an economist I must say that I find it silly – bordering on the primitive – to be chasing hapless BDC Mallams all over the place because they are selling FX above the stipulated official rate.
What we need is a comprehensive strategy anchored on prevention. This requires that the anticorruption agencies map out a strategy and roadmap for their efforts. It requires research, painstaking analysis and high level intelligence information gathering skills. We need to strengthen our institutions while ensuring governmental effectiveness at all levels; putting in place mechanisms to ensure more accountability in the public sector; enforcement of existing anti-corruption laws; full implementation of the provisions of the Public Procurement Act; greater transparency in the oil and gas sector which remains the main engine of the economy; and empowerment of the Office of the Auditor-General of the Federation.
In addition, I believe that the proposed anticorruption court needs to be set up as soon as possible. It may well require integrating the EFCC with ICPC into a super-organisation headed by an anticorruption Czar who must not necessarily be a senior police officer as has been the case with the EFCC. The new organisation should be given judicial powers to arrest, prosecute and sentence. It is an embarrassing irony that the leadership of the anticorruption agencies are themselves being accused of corruption. The grim paradox of this weird situation is that some of the parliamentarians who have to confirm the appointment of the EFCC boss are themselves those who have a case to answer before the anticorruption body. We seem to have forgotten the famous adage that he who comes to equity must come with clean hands. An African proverb says, “A snake that swallows his friend will have a tail sticking out of his mouth”. You cannot claim to be fighting corruption when you yourself are being accused of the same crime. It is an untenable situation.
Speak softly, but carry a big stick. That has been a maxim of African statecraft since ancient times. In fighting corruption, government must have the courage to turn the searchlight on itself. The war against corruption will ultimately fail if we do not reform the civil service and change the way government itself works. The wise counsels of Sultan Muhammad Bello remain as fresh today as they were in the early nineteenth century: “Know also that most of the evil that befalls the state comes from the appointment of officers who are anxious to have the appointment, because none would be keen on such but a thief in the garb of hermit and a fox in the guise of a pious worshipper…keen in the collection of money, sacrificing for such his religion and integrity, all his endeavours are for the fruits of this world, not portraying zeal and honesty, and that is the sign of treachery”.
Going forward, perhaps I need not emphasise how important the role of lawyers and judges is in this business. I daresay that a society where the judiciary collude with criminals to pervert the course of justice has no future. As far as I am concerned, when a judge takes a bribe to pervert the course of justice, it is the moral equivalence of sleeping with one’s daughter. In our ancient African civilisation, it is an abomination as well as a crime. At the same time, government must not persecute judges for no just cause. But those who have engaged in brazen acts of corruption must be made to face the consequences of their acts. At the same time, it is incumbent on government to empower the judiciary through better funding and improved living conditions.
Let me conclude with the words of the legal philosopher Ronald Dworkin: “We are subjects of law’s empire, liegemen to its methods and ideals, bound in spirit while we debate what we must therefore do. Playing God is indeed playing with fire. But that is what we mortals have done since Prometheus, the patron saint of dangerous discoveries. We play with fire and take the consequences…”
(Being the Concluding Text of an Address Delivered at the End-of-Year Dinner of MIVE Legal Services (House of Justice) at Prestige Hotel, Kaduna, Tuesday 20 December 2016).
Obadiah Mailafia