SERAP IN THE NEWS

In this interview with OLADIMEJI RAMON, Legal Adviser at Amnesty International Secretariat, London, Dr Kolawole Olaniyan, speaks about the controversial state pardon granted by the President, Major General Muhammadu Buhari (retd.), to ex-governors of Plateau and Taraba states, Joshua Dariye and Jolly Nyame, respectively, who were serving jail terms for treasury looting.

As an anti-corruption crusader, how did you receive the news that the President, Major General Muhammadu Buhari (retd.), has granted state pardon to ex-governors Joshua Dariye and Jolly Nyame, who were serving jail terms for treasury looting?

The news is clearly disappointing but unsurprising. It is very disappointing because Buhari came to power on the back of his purported ‘track record’ of tackling corruption, and his broken promises to stop public officials from looting the country’s treasury. This is a man who in 2015 declared that: “If we don’t kill corruption, this corruption will kill us.” So, by pardoning politicians (who are members of his political party) serving jail terms for corruption, he seems to be telling Nigerians: “I’m sorry, folks; my government can’t kill corruption. Sorry, you’re on your own!”

This President once blamed the judiciary for his government’s failure to fight corruption.  As he put it: “In fighting corruption, however, the government would adhere strictly to the rule of law. Not for the first time I am appealing to the judiciary to join the fight against corruption.” Now, he has turned around to undo the efforts of the same judiciary in the cases of Dariye and Nyame.

This tells us that the Buhari government has never been serious about fighting corruption in Nigeria. It also suggests that the African Union was wrong to have named Mr Buhari its first anti-corruption champion in Africa in 2018. With the growing level of corruption in Nigeria, perhaps the AU should consider withdrawing that award.

But the systemic level of corruption in Nigeria is unsurprising because Buhari has repeatedly failed to obey the rule of law, including by failing to implement any judgment that would help his government to genuinely fight grand corruption. Anytime the courts have told Buhari’s government to do something it doesn’t like, it has refused to obey it.

For example, Buhari has failed to implement several of the judgments obtained by anti-corruption watchdog Socio-Economic Rights and Accountability Project. One of such judgments is the judgment by Justice Hadiza Rabiu Shagari ordering the Buhari government to tell Nigerians about the stolen asset it allegedly recovered, with details of the amounts recovered.

Another is the judgment by Justice Mohammed Idris, which ordered the Buhari government to publish details on the spending of stolen funds recovered by successive governments since the return of democracy in 1999. Both Buhari and his Attorney General have completely ignored these and several other judgments that would have contributed to promoting transparency and accountability in the country. In short, what Buhari has done with the underserved pardon falls far short of his constitutional oath of office and commitment to the Nigerian people.

While the President’s spokesman has justified the President’s action, saying he merely exercised the power donated to him by the constitution; many have insisted that the President abused that power. Do you share the view that the President abused his power?

Yes, of course! The President clearly abused his pardon power in this instance because what he has done by pardoning Dariye and Nyame is clearly contrary to his constitutional oath of office to prevent and combat corruption. Indeed, the oath statement is a solemn reminder to senior states officials like the President to act consistently and faithfully for the common interest of the public. The constitutional oath means that public officials like the President should observe the limits of their authority and not abuse their constitutionally delegated and entrusted powers for political gain.

The widespread public outcry that has trailed the President’s decision clearly shows that the decision was not in the interest of the general public, who are direct victims of corruption. Beyond the outcry, what more can the public do to redress the injustice?

The public and concerned Nigerians can indeed exercise their right to pursue legal action against the Nigerian authorities under the Nigerian Constitution and some of the human rights treaties such as the African Charter on Human and Peoples’ Rights, which Nigeria has ratified. Cases can be brought for example on the grounds of Section 15(5) of the Nigerian Constitution 1999 (as amended), which requires the Buhari government to prevent and combat corruption. The pardon decision can also be challenged in court on the grounds of constitutional oath of office, and the public interest.

There are also opportunities to seek redress before the ECOWAS Court of Justice in Abuja, where concerned Nigerians can use the human rights framework to challenge the legality of the pardon, the resulting impunity, and generally on the impact of the escalating level of corruption in the country and the inability of the government to effectively and satisfactorily discharge its good faith obligations regarding the promotion and protection of human rights under the relevant treaties that Nigeria has ratified.

Anti-corruption watchdog, SERAP, has called on the President to withdraw that state pardon. Is that a realistic demand?

Absolutely, the demand is realistic. Since the President has the power to pardon, he also has the power to revoke the pardon in the public interest. There is no legal or constitutional impediment stopping the President from doing this. What is required is the political will to act, to understand that the exercise of the pardon power here is both unfair and undeserving, and to publicly announce that he is revoking the pardon. It is that simple! He should just do it! And that’s exactly what leadership is about.

And if the President ignores the demand, as he normally does, concerned Nigerians and groups like SERAP should go to court to challenge the action on the grounds of public interest and human rights. Petitions can also be sent to regional and international human rights mechanisms such as the African Commission on Human and Peoples’ Rights in Banjul, and UN Special Rapporteurs to expose the persistent failure by the Buhari government to fight corruption, respect human rights and obey the rule of law. Impunity for corruption and human rights violations should never go unchallenged.

The uproar generated by the latest case seemed a replay of what happened when Buhari’s predecessor, Goodluck Jonathan, gave state pardon to his political godfather and benefactor, Dipreye Alamieyeseigha, who was convicted of looting. Since these state pardons are always angering Nigerians, will you say it is time to review the president’s constitutional power to grant state pardon?

I would agree with that! It will help if the exercise of the pardon power is made more transparent and there is explicitly constitutional provision to empower the citizens to challenge any arbitrary exercise of the power. But the review of the constitution to make this happen is unlikely given that the current leadership of the National Assembly has consistently failed to hold the government to account on many occasions. However, Nigerians should continue to campaign to end the arbitrary exercise of the pardon power particularly in cases of grand corruption involving influential politicians.

What kind of amendment will you suggest to that provision of the constitution?

As I have already mentioned, any constitutional amendment should make the exercise of the pardon power more transparent and subject to legal challenge any the public. This will serve the public interest and address impunity for corruption.

The President granted that pardon on the platform of the National Council of State, which comprises past and present Nigerian leaders. It would appear that the ruling class is sending a message to the Nigerian masses that they would always protect one another, no matter the crimes committed. Will that be a correct interpretation of the situation?

Make no mistake: the responsibility for the pardon is that of the President and his government. The President made the final decision; he should accept the responsibility for the decision rather than passing the buck. The National Council of State merely endorsed the decision. Of course, to your question, politicians are also looking out for one and other. That’s why the pardon power is rarely exercised in cases involving ordinary people who have committed petty offences but with no money or influential politicians to speak for them.

How can the Nigerian people change the current situation where the ruling class takes anti-people’s decisions and carries on in the attitude that the people have no option but to live with the decision no matter how distasteful?

The Nigerian people should always speak out against corruption and human rights violations and what you called “anti-people’s decisions”. And the people and civil society like NGOs and the Nigerian Bar Association should use the instrumentality of the law and accountability mechanisms to challenge any illegal action or omission by governments whether the Federal Government or state governments.

The feelers are that the President’s action has dampened the spirits of the EFCC, ICPC investigators, the prosecutors who are chasing high-profile corruption cases. What exactly can be done to boost their morale at this time or will you say the battle is forever lost?

The President should immediately revoke the decision to pardon. It is that simple! That will go a long way in reassuring anti-corruption agencies and their officials that their efforts will not be sacrificed for political considerations.

In reality, we don’t see the politically-exposed people going to jail or paying for their crimes, because the courts in most cases free them and with the new reality, they also have a leeway in the president who can grant them state pardon. In the midst of this, don’t you think it is sheer waste for the country to continue to commit time and resources to the prosecution of these people?

No, it is not. But anti-corruption agencies have to enjoy greater level of independence and freedom of action, and there must be strong political will at the highest level of political authorities to tackle corruption, respect human rights and obey the rule of law. That’s what Buhari has failed to do since 2015! It seems too late for him to change now he can begin to do something by immediately revoking the pardon, obeying all outstanding court judgments and allowing Nigerians to freely exercise their human rights, including online. He can do all of these things straightaway. Will he do them? Time will tell.

It is often said that preventing corruption is easier and cheaper than punishing offenders. What kind of safeguards does the nation need to put in place to discourage official corruption?

There are simple steps the government can begin to take to prevent corruption. These include obeying the rule of law including by obeying court judgments and promoting and protecting human rights guaranteed under the Nigerian Constitution and human rights treaties like the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights. Others include upholding the independence of the judiciary and improving its working conditions, obeying freedom of information requests, and allowing independent news media, and civil society to do their work without any harassment and intimidation.

There are many other things that can be done to prevent corruption but the bottom-line is allowing the supremacy of the rule of law, and improving judicial and accountability mechanisms that would allow access to justice and effective remedies for people. Above all, leadership by example is key. For example, if the President and his Vice-President Professor Osinbajo can widely publish their latest asset declarations submitted to the Code of Conduct Bureau, that will go a long way in promoting transparency in government, as others may want to follow their examples.

If the political will is there, the country can accomplish a great deal in terms of preventing and combating corruption. But at the moment, the political will does not exist at the top, which is a major reason corruption is everywhere — in ministries, departments and agencies and even in the Presidency!

The case of the President would appear to prove right that anti-corruption war must not be fought on the posturing of one man, as that can easily end in disappointment. How can the anti-corruption war be institutionalised?

As I have explained, it is by doing the simple things — obeying the rule of law, allowing anti-corruption agencies to operate freely without any interference, reforming repressive laws and bringing them into conformity with Nigeria’s international obligations, improving the independence of the judiciary and other accountability mechanisms, and generally ensuring respect for human rights.

Doing this would help create a culture of respect for human rights, which will contribute to any efforts to prevent and combat corruption. Indeed, embracing the rule of law and promoting and protecting human rights can help check corruption and abuses of power. As it is often stated, “wherever law ends, tyranny begins.” Thomas Paine put it so well: “In free countries, the law ought to be king; and there ought to be no other.”

– Punch Newspapers