Nigeria must reverse the burden of proof in corruption cases

Last month, after nearly two years of a phantom trial for alleged corruption, Bukola Saraki, Senate President, was discharged and acquitted by the Code of Conduct Tribunal because, according to its chairman, Danladi Umar, the prosecution failed to prove its allegations. This decision was the latest in a string of high-profile corruption cases that the Buhari government has lost. Whatever the merits or otherwise of each of these cases, the truth is that the spate of acquittals undermines the government’s anti-graft war, and is very   disturbing from a public interest perspective.

Are we now to believe that there is no corruption in Nigeria? If, as the government always says and international organisations, such as Transparency International, affirm, corruption is endemic in Nigeria, why then is there is no single high-profile conviction to date? Instead, the government seems to have resorted to extrajudicial means, doing secret deals with alleged looters. For instance, it claims to have retrieved, since 2015 to date, cash and properties worth N205bn, $194m and £6m from suspected looters. Yet, it won’t tell Nigerians who they are.

Last week, thanks to a case brought by the Socio-Economic Rights and Accountability Project (SERAP), the Federal High Court in Lagos ordered the government to “immediately release to Nigerians information about the names of high-ranking public officials from whom public funds were recovered and the circumstances under which funds were recovered”. Of course, a secretive anti-graft war in which the government does backroom deals with suspected looters will lack credibility and public support. What’s more, as we know in Nigeria, powerful people whose assets are seized extra-judicially could get a future sympathetic government to return them. So, what’s the point?

But there is a wider issue. Why is the government losing corruption cases, and resorting to extrajudicial actions? Put simply, it lacks the institutional capacity to prosecute corruption cases successfully. In his recent Democracy Day speech, Acting President Osinbajo said that “Corruption has fought back with tremendous resources”. What he meant was that the prosecution is chronically weak, unable to undertake sophisticated investigations to secure convictions, whereas the accused are using “Ogbologbo lawyers”, as former President Obasanjo would put it, to outsmart clueless prosecutors.

But, let’s face it, apart from the shoddiness of corruption investigation and prosecution in Nigeria, it’s also true that, all over the world, corruption is notoriously difficult to detect and successfully prosecute. 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.

Yet, corruption is unlike other crimes, such as murder, where the prosecution can easily establish the two elements of a crime, namely conduct, known as actusreus, and intention, known as mens rea. As the legal dictum goes, “the act is not guilty unless the mind is guilty”. But how easy is it to prove a conduct, let alone intention, in corruption cases. Given the presumption of innocence, the onus is on the prosecution to prove, for instance, that an unexplained large sum of money found with a public officer was a product of bribery or corruption, committed with the relevant mens rea.

With such notorious evidential difficulty, it’s hard to fight corruption all over the world. Yet, corruption is a crime that must be fought tooth and nail because, as the Privy Council put it in one case, it is “an evil practice which threatens the foundations of any civilised society”. This is why many countries have reversed 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. For instance, if a public officer owns wealth that far exceeds his salary, let’s say he earns N10m per year and has assets worth N50bn, the rebuttable presumption must be of illicit enrichment, and the onus is on him to rebut the presumption, not on the prosecution to prove corruption.

Singapore, Hong Kong and Indonesia are examples of developing countries that have reversed the burden of proof in corruption cases. Such reversal is common in developed countries. For instance, last year, the Irish Court of Appeal upheld a provision in Ireland’s Prevention of Corruption Act that imposes a reverse burden of proof in corruption cases. According to the Court, the reversal of the legal burden of proof is justified “in the unusual circumstances of the prevalence of corruption worldwide and the difficulty of proving intention, even where the circumstances are strongly suggestive of criminality”. The same approach is taken in England, where the Salmon Commission said, and the government accepted, that “the justification for reversing the onus of proof is indeed compelling in the sphere of corruption”, and that such reversal “is in the public interest and causes no injustice”.

Of course, the main criticism against reversing the burden of proof in corruption cases is that it violates the presumption of innocence well-established in international conventions, such as the Universal Declaration of Human Rights and the African Charter on Human and Peoples’ Rights. But this principle is not absolute, and as the Irish Court of Appeal observed, Article 28 of the UN Convention on Corruption, which seems to allow the reversal of the burden of proof is not in conflict with the UDHR’s provision on the presumption of innocence.

So, what does all this mean for Nigeria? Well, first, it exposes the deep malaise in Nigeria’s anti-graft infrastructure. Nigeria’s anti-corruption laws and institutions are extremely weak. Surely, given the structural barriers to successful prosecutions of corruption cases in Nigeria, and given the deadly and insidious nature of corruption in the country and the social need to stamp it out, Nigeria should be in the league of nations that are taking bold and radical measures to fight corruption.

Of course, corruption erodes the fabrics of the Nigerian society. As we know, it distorts economic competition through cronyism and the activities of political entrepreneurs and rent-seekers. But less talked about are its impacts on inequality and politics. Corruption concentrates wealth in the hands of corrupt public officials and entrenches inequality. With stolen wealth, corrupt politicians and public officials are able to accumulate capital assets, acquire the best education and social standing for their children and pass on huge wealth to them, giving them undue lifelong advantages over others. As Thomas Piketty argues in “Capital in the Twenty-First Century”, inherited wealth and privileges are the biggest sources of inequality. But how grossly unfair if such wealth and privileges are products of illicit enrichment?

What about politics? Well, truth is politics is highly monetised in Nigeria. Only the extremely wealthy can go into political life. Upright businesspeople shun it; professionals lack the financial means to get involved. But imagine how corruption distorts politics when it is dominated by those who have amassed wealth through illicit means, and who use stolen wealth to buy political influence, positions etc, and determine the future direction of a country.

All the above are the reasons the Constitution says in section15 (5) that “The State shall abolish all corrupt practices”. Yet this can’t be achieved without radical measures. In my view, such measures must include reversing the burden of proof in corruption cases, as well as introducing Unexplained Wealth Orders (UWOs), whereby public officers can forfeit any suspicious wealth unless they can explain its legitimate and legal sources. Radical? Well, serious problems demand serious actions!

Olu Fasan