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The Judiciary as a Critical Linchpin in Nigeria’s Anti-corruption Crusade

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Abstract

Corruption is a vice that is widespread across all nations in the world. Although it is present in almost every country, some countries have been more successful in curbing it more than some others. Nigeria as a country that has been rated poorly by Transparency International consistently in the last 10 years, has taken steps to curb this vice. Some laws have been enacted and some agencies have also been established to implement these laws. Although they are not perfect, the judiciary is expected to enforce these laws. This paper examines some of these laws; it also discusses the judiciary and posits that to avoid the guilty escaping the hand of the law, the judiciary must be dynamic in interpreting anti corruption laws.

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Notes

  1. Kadiri M., Associate Legal Officer, Open Society Justice Initiative, Abuja, Nigeria. (Interview conducted on the 16th of May 2012; copy is on file with the author.

  2. See Apampa (2012).

  3. See Adegbulu (2010).

  4. See Corruption on Trial? (2011). last visited on the 28th of August, 2011 page 6.

  5. Adegbulu F., see n 4 op cit.

  6. Ibid.

  7. The Country has repeatedly been rated low by Transparency International in the Corruption Perception Index (CPI) for Countries. For example in the last 10 years, Nigeria has scored less than 3 (on a scale of 1–10) in the CPI for countries around the world. See generally www. Transparency.org/research/cpi. Last visited on the 20th of September 2012.

  8. See Erero and Oladoyin (2000)

  9. Ibid. Corruption is one of the reasons why the military has justified taking over power in Nigeria since the first coup in 1966.

  10. Some top government officials in Nigeria were recently arraigned for their alleged complicity in the illegal diversion of =N=32.8 billion from the Nigeria Police Pension funds. See Vanguard, April 21 2012 available at www.vanguardngr.com/2012/04/pension-scam-and-the-faces-of-corrupt-officers/visited on the 24th of June 2012.

  11. Presently, the amount of money involved as a result of corruption run into billions of naira. This was not the case with previous governments. See infra.

  12. See Nnochiri (2012) available at http://www.vanguardngr.com/2012/04/pension-scam-and-the-faces-of-corrupt-officers/ visited on the 24th of September 2012.

  13. Former Governor of Bayelsa State between 2008 and 2012, Timipre Sylva has been arraigned for committing fraud totalling = 6.5 billion while Alao Akala, former governor of Oyo State between 2007 and 2011 has also been arraigned for committing fraud amounting to = N=11.5 billion. http://allafrica.com/stories/201205250206.html visited 19th June 2012.

  14. For example, there is the United Nations Convention against Corruption ; the Southern African Development Protocol against Corruption and the Organisation for Economic Cooperation and Development Convention on Combating Bribery of Foreign Officials in International Transactions among others.

  15. In the Africa sub region, there is the African Union Convention on the Prevention of Corruption.

  16. For example, Nigeria is a signatory to the United Nations against Corruption and the Africa Union Convention of Preventing and Combating Corruption (among others).

  17. See for example Chapter II Article 5 United Nations Convention against.

  18. Before this Act of 2011 was passed, there had been the Money Laundering Acts of 2003 and 2004 respectively.

  19. Another law is the Advance Fee Fraud and Other Related Offences Act, 2006 which repealed the law on the same subject matter of 1995 and 2005.

  20. Cap C 38 Laws of the Federation of Nigeria 2004 applicable in the southern part of the country.

  21. Cap P3 Laws of the Federation of Nigeria 2004 applicable in the northern part of the country.

  22. See n 8 op cit.

  23. For example see Human Rights Watch Corruption on Trial? (2011). last visited on the 28th of August, 2011.

  24. See Opara (2006).

  25. Ibid see note 5 page 32.

  26. Corruption on Trial? The Record of Nigeria’s Economic and Financial Crimes Commission, Human Rights Watch, August 2011 available at http://www.hrw.org. last visited on the 28th of August, 2011.

  27. Ibid.

  28. See Ibiam A., This Day 18th April 2012 at. http://allafrica.com/stories/20120418507.html visited 19th June 2012.

  29. Ibid. See n 5 at p 47.

  30. See Human Rights Watch op cit see n 29.

  31. See Sections 2, 4–6 of the 1999 Constitution of the Federal Republic of Nigeria.

  32. See Simmons (2007).

  33. Ibid.

  34. Ibid.

  35. It is not within the scope of this paper to determine whether the agencies established are being funded adequately.

  36. There has been the argument among legal scholars whether the mischief rule of interpretation is the same as the purposive rule of interpretation. See Seaford Court Estates Limited V Asher (1945) 2 K.B. 461; Black-Clawson International Limited V Papierwerke Waldhof-Aschafeenburg AG (1975) A.C. 591. See also Cross: Statutory Interpretation, Bell and Engle ed., Butterworth, 1987 at 17–18.

  37. He was the Executive President of Nigeria between May 1998 and May 2007.

  38. President Olusegun Obasanjo’s Inaugural Address to the nation delivered on May 29, 1999. Available at www.dawodu.com/obas/.htm. Visited on the 30th of June 2012.

  39. See for example Sections 98–101 of the Criminal Code Cap C 38 Laws of the Federation of Nigeria 2007. See also Okogbule (2006) at pp 94–96. See note 21 above.

  40. See Cap P3 Laws of the Federation of Nigeria 2007. See note 22 above.

  41. See Ogbu (2006).

  42. See Okonkwo (2002) Cited in Oko (2002) at p 7.

  43. See Salu (2004).

  44. See I.G.P V A.N.P.P. (2007) 18 NWLR (pt 1066) 457 at 495 para F-A (CA).

  45. Section 15(5) Constitution of the Federal Republic of Nigeria 1999 (as amended).

  46. Supra. See also section 6(6)(c) 1999 Constitution. For the submission that Fundamental Objectives and Directive Principles of State Policy Chapter II of the Constitution may be justiciable, see Basu, Commentary on the Constitution of India 5th edition, Vol 2, page 312.

  47. A.G. Ondo V AG Federation & Ors (2002) LPELR-SC/200/2001.

  48. See Fifth Schedule 1999 Constitution (as amended).

  49. See Section 153, Third Schedule Part I and Paragraph 12 of Part I of Fifth Schedule to 1999 Constitution (as amended).

  50. ibid.

  51. Ibid.

  52. The Act commenced on the 13th of June 2000.

  53. See Section 3 Corrupt Practices and Other Related Offences Act 2000 (Cap C31 LFN) 2004.

  54. Section 10 Corrupt Practices and Other Related Offences Act 2000

  55. Supra See n 37.

  56. Ibid. Per Uwais J.S.C. at pp 54–55 paras E-A.

  57. Ibid.

  58. See infra.

  59. Section 2 Corrupt Practices and Other Related Offence Act 2000.

  60. See infra.

  61. Section 30 Ibid. See Infra on discussion on specialised courts for corruption matters.

  62. See for example, Sections 13, 20 and 23 Ibid.

  63. For example, see Sections 14 and 22(3), Corrupt Practices and Other Related Offences Act 2000.

  64. Okonkwo C.O., “Legal and Institutional Mechanisms against Corruption in Nigeria,” Justice in the Judicial Process 288–290 (C.C. Nweze ed. 2002) referred to by Ogbu O.N. see n 35 op cit at page 127.

  65. Adegbulu F., see n op cit at 24.

  66. Yusuf O. Alli, SAN, “Ibori’s case exposed the underbelly in our Judicial System.” This is available at www.allafrica.com/stories last visited on the 12th of June 2012.

  67. No 5 Laws of the Federation of Nigeria 2002.

  68. Cap E1 Laws of the Federation of Nigeria 2004.

  69. Sections 6 and 7 Economic and Financial Crimes Commission Act 2004.

  70. See Section 6 Ibid.

  71. See section 7(2) Ibid.

  72. Section 46 Ibid.

  73. Chukwuma I. See interview conducted on the 11th of May 2012 copy is on file with the author, Odinkalu A.C. interview conducted on the 14th of May 2012; copy is on file with the author.

  74. See Ogbu O.N. see n 37 p cit at page 134.

  75. Ibid.

  76. Corruption on Trial, Human Rights Watch see n op cit at page.

  77. See Section 19 of the Economic and Financial Crimes Commission Act 2004.

  78. There has been the Money Laundering Act of 1995, 2003 and 2004.

  79. About $32,000.

  80. About $64,000.

  81. Italics mine.

  82. See our discussion of Ibori’s case infra.

  83. Section 18. Ibid.

  84. Section 20 Ibid.

  85. Section 20(2) Money Laundering Act 2011; Section 19(5) Economic and Financial Commission Act 2004 and section 44 Corrupt Practices and other Related Offences Act 2003. Although the wording of the later legislation is slightly different from the first two legislations, they all have the same effect.

  86. See Infra on Ibori.

  87. Infra.

  88. Section 10(a) Corrupt Practices and Other Related Offences Act, 2003.

  89. Section 46 Economic and Financial Crimes Commission Act, 2004.

  90. See Vacher & Sons Ltd V London Society of Compositors [1913] AC 107 at 128.

  91. Section 2 ibid.

  92. Section 2 Corrupt Practices and Other Related Offences Act, 2000.

  93. See however Chukwuemerie A., “An Appraisal of the Nigerian Corrupt Practices and Other Related Offences Act 2000 as an Instrument Against financial Crimes” J.F.C. 2003, 10 (3), 276–294 2.

  94. FRN V Otunba Gbenga Daniel unreported Charge No AB/EFCC/0212011 delivered on the 2nd March 2012 Per Mabekoje J.

  95. Supra.

  96. Supra. In that case, the court held that the procedure applicable under the Criminal Procedure Law Laws of Ogun State 2006 is applicable to that case.

  97. Supra. See note 45.

  98. Supra.

  99. This shortcoming is discussed infra.

  100. See Section 6 of 1999 Constitution.

  101. See Mbanefo V Molokwu & Ors (2008) LPELR-CA/E?360/2006. The court in that case referred to the case of Muskrat V US 219 U.S. 346,361 1911. See also Attorney General of Lagos State V Dosunmu (1989) 6 S.C. (Pt II) 1 or (1989) LPELR-SC.257/1998.

  102. Marwa & Ors V Nyako & Ors (2012) LPELR-SC 141/2011(CON) per Onneghen, J.S.C. pp 57–58 para. C-A.

  103. Ibid.

  104. Ibid.

  105. Adedara V The State (2009) LPELR-CA/IL/C.32/2006.

  106. Rabiu V The State (1980) 8–11 SC 130. See also PDP V INEC (1999) 7 SCNJ 297 at 347 per Ayoola JSC, per Wali JSC at 332.

  107. Unreported Charge No.FHC/ASB/1C/09 available at www.debateandreview.com/law/personal-tech/347-efcc-vs-james-ibori-the-decision. visited on 15th March 2012.

  108. These offences are contrary to Sections 14(1), 15(2)(b) and 16 of the Money Laundering Act 2004 and Section 27(3)(a)(b) and (c) of the Economic and Financial Crimes Commission Act 2004.

  109. See EFCC V James Ibori & Ors Supra.

  110. Emphasis author’s.

  111. Ibid.

  112. Ibid.

  113. Ibid.

  114. See DA Kabirikim V Emefor & Ors (2009) LPELR–SC.242/2002.

  115. Emphasis author’s.

  116. Unreported case No T20117192.

  117. Obtained from http://www.thelawpages.com/court-cases/court-case-search.php?action=search&mode=1 visited on the 24th of June 2012.

  118. See Hooper, Ormerod David C, (2011) at 1012.

  119. See Section 340(3) Proceed of Crime Act 2002, www.cps.gov.uk/legal/_p_to_r_proceeds_of_crime_money_laundering visited on the 25th of June 2012.

  120. Ibid.

  121. Abacha V The State (2002) LPELR-SC 290/2001.

  122. Ibid. See also Ohwovoriole V FRN & Ors. (2003) LPELR-SC 392/2001.

  123. Ibid.

  124. Ibid.

  125. So in Ibori’s case, he could have been charged with offences under Sections 12, 13, 17 or 18 of the Corrupt Practices and Other Related Offences Act 2003.

  126. Repeating what this individual said without calling him as a witness would have amounted to hearsay evidence.

  127. Contrary to section 27(3)(a) of the Economic and Financial Crimes Commission Act 2004.

  128. Arabamen V The State (1972) LPELR-SC 110/1971. See also Kofi Setrena V The King [1966] 8 WACA 132.

  129. Nwosu V Board of Customs and Excise (1988) LPELR-SC-17/1988.

  130. Proof beyond reasonable doubt.

  131. Op cit. see note 110.

  132. Ibid.

  133. See www.cps.gov.uk/legal/_p_to_r_proceeds_of_crime_money_laundering visited on the 25th of June 2012.

  134. See Blackstone, op cit B21.1 page 1010.

  135. Section 20(3) Money Laundering Act 2004. See also Section 19(5) Economic and Financial Crimes Commission Act.

  136. This may however be difficult to determine. See R V Ali (2005) EWCA Crim. 87, (2006) 1 Cr. App. R. 8.

  137. See also Section 19(5) Economic and Financial Crimes Commission Act.

  138. See In K (2007) 1 WLR 2262.

  139. See Olalekan Bello, “FG may scrap EFCC, ICPC, FRSC, Others” in Punch Newspaper, April 17 2012 available at http://www.punchng.com/news/fg-may-scrap-efcc-icpc-frsc-others/ visited on the 24th September 2012.

  140. See for example, Nwamaka Asuzu “Defect in Oronsaye’s Report” in Sunday Trust Newspaper of 6th Mat 2012 available at http://sundaytrust.com.ng/index.php?option=com_content&view=article&id=10044:defects-in-oronsayes-report&catid=7:comment-a-debate&Itemid=113 visited on the 24th of September 2012.

  141. See Sustein (1989) at p 426.

  142. See Metzger (1982).

  143. The phrase refers more to those who do not want the Bill to be passed into law than to those who want it.

  144. Metzger M.B. see n 140 op cit.

  145. Every accused person standing trial is presumed innocent until he is proven guilty. See Section 36(5) Constitution of the Federal republic of Nigeria 1999 (as amended). See also Orungua & Ors. V The State (1970) LPELR-SC.78/1969.

  146. Quoted by Mollah (2012) at p 62.

  147. Archibald Cox (1947) at 374.

  148. Supra.

  149. Supra.

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  1. Nigerian Law School, Lagos Campus, Lagos, Nigeria

    Gbemi Odusote

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Odusote, G. The Judiciary as a Critical Linchpin in Nigeria’s Anti-corruption Crusade. Liverpool Law Rev 34, 123–143 (2013). https://doi.org/10.1007/s10991-013-9133-0

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