SERAP IN THE NEWS

• Lawyer sets anti-graft reform agenda for Tinubu Administration.

Legal Adviser, Amnesty International Secretariat, London, Dr. Kolawole Olaniyan, has identified ways the Tinubu Administration can boost the anti-graft war. He also tells Deputy News Editor JOSEPH JIBUEZE how recovered proceeds of corruption can be managed.

How would you assess the performance of the anti-graft agencies?

While it’s true that the country’s anti-corruption agencies lack the independence and freedom that is required to effectively and efficiently discharge their mandates to prevent and combat corruption, the solution is not to scrap them! It’s like cutting off one’s nose to spite one’s face. The agencies have not worked well primarily because the political leadership is generally corrupt and weak and not interested in pursuing genuine anti-corruption and rule-of-law reforms. The independence of anti-corruption agencies is important to their existence and operations, but the country’s anti-corruption laws have clearly not kept pace with international standards pertaining to preventing and combatting corruption and the recovery of its proceeds.

Why is such independence lacking?

Part of the problem is that the Attorney-General of the Federation (AGF), a political appointee, still exercises some forms of supervisory roles over anti-corruption agencies! This is nothing more than ‘putting the cat in charge of guarding the meat’! In fact, there are several instances where former attorneys general have exercised their powers to interfere with the operations of anti-corruption agencies and halt many corruption trials. Former Attorney General of the Federation, Abubakar Malami (SAN), for example, reportedly interfered with several ongoing cases by the EFCC and the ICPC. Another former attorney general — Mr. Micheal Aondoakaa—contested the prosecutorial powers of the EFCC and sought to take over cases with respect to some former governors who were facing allegations of corruption by the commission. The office of the attorney general has no business making any regulations for anti-corruption agencies.

So, how can they become independent?

The so-called regulations reportedly put in place by former AGF, Mr. Mohammed Adoke (SAN), should be immediately revoked or challenged in court. Section 43 of the EFCC Act, which empowers the AGF to make regulations for the commission, should be removed from the Act without further delay because it is clearly inconsistent and incompatible with international standards. What is needed is for the principal anti-corruption agencies — the ICPC, the EFCC — and other agencies like the Code of Conduct Bureau and the Code of Conduct Tribunal to be truly independent of executive control.

Will a constitutional amendment be needed?

Another solution is to amend Section 174 of the Nigerian Constitution 1999 (as amended) to explicitly remove or limit the powers of the AGF to enter a nolle prosequi in corruption matters. Overall, President Tinubu has to demonstrate genuine political will to combat grand corruption by immediately ensuring the reform of these anti-corruption agencies, to free them from political and excessive governmental controls. President Tinubu and the National Assembly should, without further delay, repeal the country’s outdated anti-corruption laws and bring them in conformity with Nigeria’s international anti-corruption obligations, including under the UN Convention Against Corruption and the African Union Convention on Preventing and Combating Corruption to which the country is a state party.

Can the antigraft agencies also be financially independent?

For example, reforms can focus on mechanisms to guarantee the financial independence of anti-corruption agencies and to empower them with direct and independent rights and freedom to prevent corruption and prosecute corrupt public officials. Hong Kong’s ICAC and Singapore’s CPIB have been successful partly because their independence of resources guarantees their freedom of action.

Should anything be done about constitutional immunity to some officers?

Section 308 of the Constitution, conferring immunity from legal proceedings on certain political officeholders, such as the President, Vice-President, governors and deputy governors, should be amended to explicitly remove immunity for investigation and prosecution of grand corruption cases involving these officers. We have seen how the provision has been misused over the years to allow these officers to escape prosecution for their crimes, exacerbating a culture of impunity for corruption.

Nigeria has received several tranches of Abacha loot from abroad. Will you say the recoveries have been well utilised?

The country has not made the best of the recovery and certainly not for the benefit of Nigerians. Billions of dollars have been reportedly repatriated to the country but much of the recovered funds have been mismanaged, diverted, or re-stolen, and remain unaccounted for. Unfortunately, Buhari blatantly ignored court judgments obtained by SERAP, ordering successive governments since 1999 to account for the spending of recovered stolen assets, including those stolen by Abacha. It is a gross injustice on the victims if the recovered proceeds of corruption are not utilised for their benefit.

What would be your advice to this administration?

President Tinubu should ask the AGF to immediately enforce all the judgments ordering transparency and accountability in the spending of recovered proceeds of corruption. Foreign countries like the US and the UK should immediately suspend further initiatives to return any proceeds of corruption until these judgments are effectively enforced, and there is accountability for the spending of repatriated stolen funds since 1999.

Should loot recovered from ex-governors be returned to such states?

Recovered proceeds of corruption should go directly to victims of corruption. If you send the recovered assets to states, chances are that the proceeds will be re-stolen or mismanaged. You’ll get the same outcome if recovered stolen public funds are kept by the Federal Government. In fact, this is the situation in Nigeria and several other countries. One solution is to set up a trust fund for victims of corruption into which recovered loot can be deposited and then used for the benefit of the victims of the states from which the funds were stolen.

Your second book, Ownership of Proceeds of Corruption in International Law, was recently released. What motivated or informed a book on this subject?

Yes, my second book was published in November by Oxford University Press, UK. This book is a natural follow-up to my seminal book on Corruption and Human Rights Law in Africa (Oxford: Hart, 2014). Briefly, the book challenges the conventional notion that sovereign and ownership rights over wealth and natural resources – and by extension, the proceeds of corruption – should be exclusively exercised by states. The book examines the relationship between the right to wealth and natural resources, proceeds of corruption, and economic activities. Focusing on victims of corruption, the book argues that victim-states’ populations ought to be empowered to pursue grand corruption and asset recovery actions against their governments. It proposes theoretical and legal remedies for recovering the proceeds of corruption, encouraging the development of domestic laws. The book has been well received. It has received very good reviews, including by Dinah Shelton, Manatt/Ahn Professor of International Law Emeritus, George Washington University Law School, Charity Hanene Nchimunya, Executive Secretary of the African Union Advisory Board against Corruption, H.E Dupe Atoki, Judge ECOWAS Court of Justice and former Chairperson of the African Commission on Human and Peoples’ Rights, and leading Nigeria’s human rights lawyer Femi Falana (SAN). The book was announced during the recently concluded 10th session of the UNCAC Conference of the States Parties (CoSP10) in Atlanta, Georgia, USA, and it was well received by participants at the conference.

It was released in the United Kingdom. Is it available in Nigeria?

Yes, the book was released in the United Kingdom because it was published by Oxford University Press. It was released in the US in February 2024 by Oxford University Press, USA. The book is, of course, available in Nigeria and can be obtained online through the website of Oxford University Press and Amazon.com, Inc, and from several bookshops, including in Africa, Asia, Latin America, Europe and the US.

What change of tactics will you recommend to the anti-graft agencies?

The tactics of each anti-corruption agency are determined by its foundational legislation and operational strategy but any tactics adopted must align with international standards. The biggest challenge is not just punishing corrupt behaviour, but also reversing the prevailing culture in which corruption is viewed as permissible, perhaps normal conduct. So, the anti-corruption agencies can lead the campaign for anti-corruption and rule of law reforms to address the deficiencies in Nigeria’s anti-corruption laws, fortify those laws to meet international standards and ensure the country’s engagement in the global fight against corruption. The agencies can’t achieve much without the Tinubu Administration implementing a root-and-branch reform of the country’s anti-corruption laws and justice system.

Are you concerned that most EFCC chairmen have left controversially?

It is, of course, not strange, especially given, as I have noted, the lack of political leadership that is genuinely committed to stopping corruption. It also shows the lack of independence and freedom of action of anti-corruption agencies generally. The trend will continue unless the heads of anti-corruption agencies are guaranteed tenure protection.

Are you surprised that some of those who served in the last administration are now on trial despite its anti-corruption posturings?

Not at all! Under Buhari, the rule of law degenerated and corruption flourished. The country became more corrupt under his watch. The Buhari government was a lawbreaker, flagrantly disobeying court orders and breeding contempt for law. He simply ignored reports of widespread and systemic corruption in ministries, departments and agencies. Under Buhari, Nigeria consistently ranked low in Transparency International’s Corruption Perception Index. Not that the ranking has improved under Tinubu because the movement from 150 to 145 is so small and insignificant. And as Transparency International has explained, the small changes are due mostly to the efforts of citizens and civil society organisations pushing for transparency and accountability.

In what specific areas did the last administration fail?

In any case, Buhari failed to address the fundamental weaknesses of Nigeria’s anti-corruption enforcement efforts. He certainly didn’t deserve the recognition as the African Union’s first anti-corruption champion in Africa. The AU will do well to withdraw this recognition in light of reports of widespread and systemic corruption and impunity under his watch. And in the light of corruption allegations against some of his cabinet members, Buhari should be investigated and prosecuted if there is sufficient admissible evidence of corruption against him. He doesn’t enjoy any immunity from prosecution. It may be a Nigeria first, but we have seen leaders facing corruption charges in several countries including the US, Argentina, France, Brazil, Pakistan, and South Africa. There’s no reason why this can’t happen in Nigeria. Any former president suspected of complicity in corruption should be called to account. Holding him and other former presidents to account would show that nobody is above the law.

What are your expectations from the Tinubu Administration?

To deliver real change, the Tinubu Administration has to undertake, as a matter of priority, an extensive programme of corruption and rule of law reforms to improve the independence and freedom of action of anti-corruption agencies, rebuild the crumbling justice system, sufficiently address conflicts of interest, empower victims of corruption to take action in corruption and asset recovery matters when the authorities are either unwilling or unable to do so, improve judicial independence and integrity, and make publication of asset declaration forms of public officers constitutionally mandatory. But real change won’t happen unless there is a strong judiciary free from political influence, free and fair elections that are not prone to judicial manipulation, and Nigerians continue to innovate and press for action on corruption. The reforms should include legislation with provisions to offer adequate protections for those who seek to expose corruption or obtain, exercise, defend, or promote human rights and to shift the burden from the state to prove that a government official’s conspicuous wealth was ill-gotten, to the official to prove that that wealth was obtained legally. Such a shift is both feasible and desirable. It will be entirely consistent with international standards, particularly Article 20 [on illicit enrichment] of the UN Convention against Corruption to which Nigeria is a state party. Pending the anticipated reforms, the Tinubu administration must consistently and fairly enforce the existing laws outlawing corruption, by for example obeying court judgments including those obtained by the anti-corruption watchdog,  Socio-Economic Rights and Accountability Project, ordering the Federal Government to account for the $460m Chinese loan obtained to fund the failed Abuja CCTV contract; and to publish details of spending of recovered stolen assets since the return of democracy in 1999.

What do you make of the recent nationwide hunger protests?

Protest—whether against hunger or the rule of law crisis—is clearly a good thing, as it tends to put a spotlight on issues of legitimate public interest. Indeed, protest also plays a central role in defending democracy, the rule of law and human rights. The right to peaceful protest is clearly recognised under the Nigerian Constitution 1999 [as amended] and human rights treaties such as the African Charter on Human and Peoples’ Rights and the International Covenant on Civil and Political Rights to which Nigeria is a state party. I think the nationwide hunger protest is a wake-up call to Nigerian authorities and politicians to stop using public money to fund their lavish lifestyles. Authorities at all levels of government must genuinely begin to address the persistent human rights challenges such as growing economic inequality, widespread corruption, poverty and the rule of law crisis confronting the country. There is no excuse for the violence witnessed at the later stage of the protests but Nigerian authorities and politicians seem to be complicit here, as there are credible reports that political thugs infiltrated the protests to target and attack peaceful protesters and journalists. Security forces also used reportedly excessive force to disperse protesters. These repressive and authoritarian practices shouldn’t be normal in 2024 Nigeria. Protesters have the freedom to choose the mode, form, place, and message for peaceful protest, and Nigerian authorities have the obligation to manage social conflict through dialogue. Unfortunately, Nigeria is moving in the wrong direction, as the right to protest seems to be a risk in the country. It is completely wrong for Nigerian authorities and politicians to consider citizen mobilisation as a form of disruption of the public order or, even worse, a threat to ‘national security’ or the stability of democratic institutions. This has to change.

How can the recurring issue of the use of force by security agencies against protesters be addressed?

Violence or the use of excessive force by security forces is avoidable during protests. Security forces can and should do better. Protest is a form of individual or collective action aimed at expressing ideas, views, or values of dissent, opposition, denunciation, or vindication. Therefore, the use of force during a protest must be a last resort. Nigerian authorities have a duty to take the necessary measures to prevent acts of violence and security forces must not arbitrarily hinder the exercise of the right to protest. Indeed, Nigerian security forces have the obligation to protect and manage the staging of protests and to fully comply with international standards on the use of force particularly the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. As I said, Nigerian authorities and politicians shouldn’t normalise violence or police brutality in 2024 Nigeria. No one should ever be targeted simply for exercising their human rights including peaceful protest. Nigerian authorities must promptly, thoroughly, impartially, independently, transparently and effectively investigate all cases of attacks and use of excessive force against protesters and journalists and bring those suspected to be responsible to justice. Authorities must ensure access to justice and effective remedies to victims.

—– The Nation Newspaper