Not many had expected the judicial outcome of some of the cases brought before competent courts against the Economic and Financial Crimes Commission (EFCC), by Chief Mike Ozekhome (SAN) and Dame Patience Jonathan, challenging the freeze on their money in some banks. In a similar way, the outcomes of EFCC’s cases against Elder Godsday Orubebe and Justice Ademola, his wife and Mr Joe Agi (SAN), were not expected. Reason: many had believed that with the public opprobrium that attended details of their cases, backed by President Muhammadu Buhari’s seeming avowal to kill corruption before it killed Nigeria, the ‘big fishes’ would form the first set of victims of the President’s obsession.
That would not be, however. It was not that the judiciary was ill-prepared or unwilling to support the fight against corruption. It was also not a case of corruption fighting back; but clearly, a case of inability to travel beyond sentiments and sensationalism in the fight against corruption or stealing. Basically, the EFCC has never been prepared to undertake the arduous task of investigating and assembling evidence to prove cases before it. For this, a new philosophy guides its work –name and shame. I’ll tell you why.
A few months after assumption of office, Comptroller-General of Nigeria Customs Service (NCS), Col Hameed Ali, had an interaction with media executives in Lagos. The evening parley held at Federal Palace Hotel on Victoria Island. On that day, Ali sought to do three things: familiarise with media executives, market his policy on importation of rice through land borders and seek media support for the anti-corruption war.
Media executives present engaged him on the lifting of ban on the importation of rice through land borders and tried to educate him on the futility of his new policy. He remained stubbornly fixed on his views that allowing importation of rice through land borders would do two things: stop smuggling of rice across the borders and also increase revenue for the Federal Government, given that his basic assignment was to ‘make money for government’. Despite efforts to point out what impact the policy would have on rice cultivation locally, Ali insisted on trying out his policy first. His last word on the matter was, “we shall enforce it”. All media executives present surrendered. Exactly three months later, Ali announced that the policy had failed to achieve its purpose. He reversed it.
On the second point, he urged the media to “support President Buhari’s anti-corruption war.” Well, everyone had his views on how best they believed the battle could be constitutionally and legally fought and won. But Ali had other views. He made a suggestion to the media executives on the best way they could support the anti-corruption war. He suggested that each newspaper dedicates a portion of its front page to anti-corruption fight and ensured that the picture of whoever is accused of corruption is published on the space over several days. That way, he suggested, they will be so ashamed that they won’t be able to face society ever again. In his final thoughts on this, he said the best cure for corruption is ‘name and shame.’
Let’s get it, ‘name and shame’ is not new to our political lexicon. However, it is unknown to law. It was employed by former governor of the Central Bank of Nigeria (CBN), Sanusi Lamido Sanusi, now Emir of Kano, in an interview he granted Financial Times, of London soon after his onslaught on managing directors of banks, which swept away many bank bosses, leading to trials by the EFCC and acquisition of some banks by the Federal Government. He had insisted that though the wheel of justice may grind slowly, ‘naming and shaming’ those involved in the mismanagement of banks would go a long way in sanitising the sector. True! Some are yet to recover from their shocking exit, and loss, of their private banks. But in politics, the situation is different. To be a successful Nigerian politician, one must develop thick skin against shame. Nothing shames the Nigerian politician. Not even shame itself!
However, the concept of ‘name and shame’ is basic reason Buhari’s anti corruption war is faltering. ‘Name and shame’ is built on suspicion, even when not reasonable. EFCC seemed to have imbibed the concept. As a result, it promotes media trial of accused persons while ignoring the time-honoured legal maxim that an accused is innocent until proven guilty, not just by a court, but by a court of competent jurisdiction. That means a lot. EFCC ignores that. Somehow, it seems to agree with the body language of the President that an accused is guilty until proven otherwise by a court, which has been cowed because some of its officials are also perceived to be corrupt.
In his public pronouncements, President Buhari, consistently convicts accused persons. He ignores the fact that they were only accused of committing acts suspected to constitute what a court may find to be acts of corruption. In most of Buhari’s pronouncements about corruption in Nigeria, especially while abroad, he always spoke with finality that “they sat on the table and shared the money and put in their private accounts.” Such statements did not only name and shame, they also came with conclusions such that those accused of stealing public funds were no longer accused persons but convicts who should lose their freedom until if, and when, they are able to prove their innocence. In essence, the anti-corruption fight was started, ab initio, on a wrong premise. So, it was a matter of time before the courts started correcting the wrong impressions, which were strongly built on suspicion, not evidence. I have always liked that aspect of judicial pronouncements where a judge or magistrate says that the case against an accused person had been proven, by prosecution, beyond reasonable doubt. The most interesting words for me are ‘beyond reasonable doubt.’ Those are the words, which to my mind, EFCC should take special note of before bringing charges against any accused persons.
In the case of Ozekhome, the trial judge held that EFCC could not prove that the money paid his law firm by Ekiti State Governor, Ayo Fayose, for legal services rendered him by the law firm, was paid from the proceeds of crime. That judgment will materially, most likely, affect the foundations of judgment in other cases where persons who received payments for services rendered to the Federal Government, are being prosecuted for receiving such payments. For a layman, it is unheard of that a trader, or contractor, would query the source of money used to pay for goods sold and delivered or services rendered.
For EFCC to revitalise itself and regain momentum in the anti-corruption war, it must go to trial with hardcore evidence and do away with speculations, suspicion and media trials that had attended its prosecutorial work. EFCC should have known by now that judges are not guided by body language, press statements that convict accused persons before approaching courts, neither are they guided by sentiments of members of the public. Yes, an accused person could be sentenced to death at the news-stands by free readers who hold every rich person responsible for their poverty. But the judicial process is different. It is about evidence proven beyond reasonable doubt.
EFCC will also do very well to take to heart the counsel of Justice Gabriel Kolawole while suspending the trial of Col Nicholas Ashinze and others over media trial.
•Uchegbu, a journalist, writes from Lagos. He can be reached via firstname.lastname@example.org