Nigeria Freedom of Information Act: How about the Immunity Clause And The EFCC Act?

In 2008, the late President Umaru Yar’Adua asked the National Assembly to use the opportunity of the impending constitution review exercise to expunge the Immunity Clause from the Nigerian Constitution. Such idea foretold seriousness and vigour in the manner the various political offices were canvassed by diverse citizens in the public offices, civil society and diverse opinion molders.

As contained in Section 308 of the 1999 Constitution, the immunity clause protects the president, state governors and their deputies against arrests, prosecution and imprisonment for any unlawful acts throughout their tenure of office. The fact that the late President Yar’Adua, a beneficiary of such statutory provision, was the first sitting president to champion the abrogation of immunity clause, has given fresh impetus to the position of long-lasting opponents of the law and subjected it to what may, perhaps, be the biggest threat to its existence since it came into being.

Those cases involving officials with specific duties to handle or oversee taxpayer funds must be handled well for the sake of Nigeria’s prosperity. Government should consolidate on this by creating special courts to try corruption and other negative vices. I commend the President Goodluck Jonathan for signing into law the freedom of information (FOI) and he will go down in history on account of this as one President that has helped to transform Nigeria.

Before now; Corruption has become a great menace and Nigeria economy is a victim of it. In one estimate almost 3% of Nigeria’s GDP goes down the drain due to massive corruption in different socio-economic sectors. It’s a shame that “Transparency International” has previously posted Nigeria among top corrupt countries in the world for three consecutive times 1985, 1996 and 2003.

State laws that enforce misuse of public funds are critical to the democratic process. Voters place trust in officials at all levels, from the governor’s office to the local government councils, that they will guard taxpayer funds with extreme care. But it has become an eyesore and pains in the sight of the law-abiding Nigerians. Those who pad their pockets with public money should expect to feel the heavy hand of the law. Ex-speaker Dimeji Bankole’s ordeal appears to be one of such but appears so witch-hunting. Fighting corruption must involve and implicate persons who perceive, involve and aid such crime. It shouldn’t appear selective. Some of the ex-governors and past local government chairmen has ‘escaped’ with public money yet unnoticed, corrupt fight should be separated from political witch-hunting to forestall democracy. It is necessary to implement the necessary enforcement behind the freedom of Information recently signed into law by removing the immunity clause from the constitution. It would serve better in trapping-down stealing Law makers, Governors, Local council boss on the spot. Person(s) assigned to handle government project are not exempted.

When local officials break that standard to feather their own nest, their actions erode public confidence in our government institutions. Theft from public coffers is a misdeed that warrants felony prosecution under the state law. Needless to add, this largesse is being funded from the public coffers and is driven more by the cynical urge to score cheap political points than accountability as a good government official. I believe a mouth-watering reward should be earmark for out-going governors, law-makers and other political office-holders in order to discourage them from stealing public fund. It could go in form of monthly grant or stipend. There is absolutely no reason why stealing from public coffer should go unchallenged, not the least because it makes a mockery of the concept of the Government as the custodian of public wealth and resources to be used for the greater good in a republic as opposed to the abhorrent neo-federalism we are.

The state’s law for misuse of public funds is tailored to those “charged with the receipt, safe keeping, transfer or disbursement of public money.”Not until now, officials approaching retirement have been ‘allowed’ to steal as they wish because they are assured they wouldn’t be taken to task for crimes they committed while in office as a result of immunity. The same Local Governments also punched holes in the development funds kitty to the detriment of community development projects by stealing budgeted monies for personal gains and yet officials submit reports that the ‘development’ monies was spent on projects which upon auditing proved to have been fakes.
Most Local Government reports show that they have built hundreds of classrooms of community schools and equipped them with science labs, dispensaries and drilled hundreds of rural water wells, but nothing of the sort is being implemented.

The receding popularity of the ruling party is emanating from their local Government chairmen, who had been partly caused by unfulfilled promises to provide social amenities and that ‘known’ thieves of public funds have gone unpunished. As a result opposition parties have gained credit for shouting hoarse at corruption in Government and misuse of public funds. Their noises gained them many seats parliament in a show of popular disgruntlement with the ruling party. The Nigerian Government too loses billions of naira in ghost workers’ salaries and unnecessary workshops and seminars, and overseas trips. Some of the worst culprits in ghost workers are the ministries of education, health and the local Government.

For a country that claims to be poor in the midst of abundant wealth, one would think the EFCC and all other legal bodies would have taken steps to stem criminal practices that drain the tax payers’ money. For decades Nigeria officialdom has exhibited a notorious practice of self-sustenance, protection and nepotism to avoid the long arm of the law. This practice and nepotism are now dealing hard blows to the country’s development prospects.

Nigeria4betterrule’s June 2011 edition saw her audience wishing an amendment to that immunity law is achieved. They want to strike out the language that tailors the crime to only a certain few public officials. Instead, any public official who fiddles with taxpayer money will be subject to felony prosecution. These participants (acumen of seasoned lawyers) have gained loads of experience prosecuting criminal cases involving public misuse of taxpayer funds, ever since they were called to bar. One of the first cases involved former Council mayor inside who misused public funds for personal use while on business trips. Other case involving corruption with public money has unfolded here in the June edition of nigetia4betterrule forum, but has not been brought to the fore as I write this piece.

By amending the immunity clause in Nigeria constitution, the EFCC can serve notice to rank and file public employees that taxpayer funds are to be safeguarded. It essentially says that if you accept public employment, if you accept public trust, there is a higher duty placed on you. Misuse of public funds can occur at almost any level in state or local government. Until the state removes immunity clause and beefs up its laws, it’s opening the door to more abuse. So far the government’s response to all discussions about corruption has been one of total nonchalance. The assumption seems to be that nothing can be done about it. This should not have been the case. The government should take up the issue in earnest and find solutions to this problem on an urgent basis. It is not only a problem of image, as the government has been saying repeatedly, it is a problem that is real and affects every citizen rather negatively.
The Economic and Financial Crime commission (EFCC), which was theoretically supposed to be independent, is yet to be functional. The government has ensured that it does not work. The Head of the commission is in conflict with her job modalities, almost 70 per cent of her indicted persons, are retained and tol

erated by this government. So where is the independence? The garrulous finance minister Olutoyin Aganga recently came out publicly with a statement which roughly states the administration’s position; there are no honest persons in Nigeria! This is a highly offensive statement and the nation should have reacted very strongly to it but it did not as the level of tolerance for this kind of “nonsense” talk has reached almost infinity. One only wishes, the tolerance had extended to virtuous things rather than vicious ones. As a nation, we seem to have cultivated the wrong ethos.

Nothing seems to be working in this country because of corruption. Critics had recently said that Mrs Farida Waziri should make a public statement about her assets if she fall-in as a political prey, the way her predecessor, Nuhu Ribadu . The EFCC boss did not bother to respond to the offer. Nevertheless, Farida, if she is serious, can make her disclosure of assets public on an annual basis to create a precedent and mount pressure on the government to do the same. It is necessary that somebody should pioneer the anti-graft movement. So far there has only been talk and no real action that makes people believe that the entire system is corrupt.

Corruption cannot be a way of life. It undermines the normal functioning of institutions. One understands the need for money but every society lays down the rules by which it can be made. It cannot be free-style fortune hunting. The price of corruption can be extremely high and we already have symptoms of it with high political instability and negligible public services. If we are to survive as a nation this has to stop at some point.

As widespread corruption eats into the vitals of the society, it is imperative to retard its growth. Its regressive demonstration-effects must also be arrested. Such effects include displaying of pomp by holders of ill-gotten money, their social influence and personal security conferred by wealth that can tempt the vulnerable people to be corrupt whenever opportunities arise. Evidently unchecked corruption creates an ominous situation of decline feeding decline to make a society moribund. In this context, the assertion made the other day by a senior US state department official in an online conversation with some Nigerian journalists merits attention. The concerned official has mentioned that unabated corruption still disqualifies Nigeria for Millennium Challenge Account (MCA) funding. The government should, as the official further noted, strengthen the regulatory regime to ensure transparency of its conduct of public affairs. Such a statement does confirm that western world still consider corruption as a grave malady in this country and hold the government primarily responsible for it. The official has literally echoed the findings of the Transparency International that branded Nigeria in successive years as the most corrupt country.

The accusation of widespread corruption by the western world should be dismissed neither as something unwarranted nor a slur on the country and its government and people. There is no denying that a state of being corruption-free or having the malady significantly reduced will best serve the national purpose of achieving the higher goals of this ‘poor’ country. Such goals include however, the people of this country; Nigeria who has no role in the government should consider the unceasing charge of widespread corruption as a slur on them. It is they who have successively failed to install an incorruptible government by not electing in most cases entirely honest individuals as their representatives to parliament and other elected bodies. They should be on their toes to elect through the next polls only honest, capable and dedicated persons as law-makers.

The allegation of being among top corrupt countries is not wholly based on the solid rock of irrefutable evidences and may be considered exaggerated. However, some sectors like power, communications, transport, Road maintenance, public procurement, lower level judiciary and law enforcement, are known to be afflicted with pervasive corruption. The press freedom as assent by president Jonathan in the FOI Act may have inspired the local media to exercised their right on a highlight in the spirit of democratic tradition made on incident of corruption. The like of the same are not even reported in many countries because of lack of access to information or strict laws suffocating press freedom or whatever. But that is no justification for the government to tolerate corruption. This society must grow from within to display higher potential and greater ability to survive well. That means living with dignity by shedding or strenuously containing with a sense of self-respect and national duty all such homicidal bad practices including corruption, without further loss of time. Such corrupt practices, be they in politics or in offices or in social transactions, have invariably curtailed the national progress over the years.

Bluntly speaking, the government cannot entirely disown the discredit for not being able to effectively combat corruption and activate the Economic and Financial Crime Commission (EFCC) yet as an efficient authority with teeth for ably serving its founding objective. The facts of the organizational structure and rules of business of the commission not being yet finalized and put into effect raise grave questions about the sincerity of purpose or efficiency of the government or its relevant officials. The relevant government officials and the commission secretariat should now be on their feet with a great sense of urgency to remove the bottlenecks that hold back the EFCC from effectively discharging its functions.

It is very unfortunate that there is no one who can sack EFCC’s inefficient members? Then who selects them? I think the EFCC should consist of not only legal people but also journalists for honest reporting and detection. I have also wondered why eg in Power Holding Company Of Nigeria (PHCN) the inefficient managers and employees are never sacked? Two more suggestions:
1) For the custom’s side corruption, I think a % based salary on tax recovered might be a better incentive not to steal. A % based salary enables the tax collector to earn high amounts based on the size of the tax collected so that might eliminate the need to steal in an environment where honesty is very needed.2) A manager can easily be judged by his results. So why can’t more managers be sacked based on productivity measurements in the Government sector also?

Recently my auntie had to use the new National Hospital Abuja,. Despite all the new glossy floors, equipment, buildings etc they were still not keeping to hygiene rules. My auntie had been given someone else’s used gown and they sometimes don’t change the sheet on the operating table’s bed etc. Who is responsible for ensuring that patients who are paying so much can get the required hygiene service in this example ?, The predominant problems range from lack of adequate number of medical doctors, abscondment from duties by medical workers, and power problems. The number of patients at those hospitals is usually overwhelming. I find such practices very upsetting. Whose money is the management or employees saving?

Lack of supervision is evident in many government departments. But the “art” of concealing misdeeds cannot be attributed to that. Most ‘HODs’ take bribes almost openly. When he sold a State-owned enterprise at an extremely low price, piles of complaints flooded the authorities and the victimized workers protested, but the higher authorities remained deaf. Such incidents happened repeatedly, and instead of being punished indicted politicians are being re-appointed, making a mockery of the Nigeria’s anti-corruption system.

If public opinion is neglected, the anti-corruption system cannot function effectively. The EFCC was formed with high hopes, but the hopes were not fulfilled the repeated calls to allow public supervision in the running of the anti-corrupt

ion system have fallen on the authorities’ deaf ears. But the authorities should know that to prevent crimes like indicted politician, they have to listen to public opinion. Corruption in health care costs more than money. When it has become a crime to treat victim of gun-shot, even when it is evident and obvious with public testimony that s/he is not a criminal but attacked by armed robbers – how do you put a price on that? The price of corruption in health care is paid in human suffering.”

“Corruption eats away at the public’s trust in the medical community. People have a right to expect that the drugs they depend on are real. They have a right to think that doctors place a patient’s interests above profits. And most of all, they have a right to believe that the health care industry is there to cure, not to kill.

When the education system has failed to instill moral values in childhood and the same education system has failed to design and adopt procedures for capturing the culprits then the only option left is the hard chop of the axe which consists of:

1) Sack employees and Government regime who are found to be inefficient and corrupt as a first response.

2) If possible bring them to justice who might involve a hefty fine or recover the stolen amounts and/or imprisonment for the various breaches of duty.

3) Set up a watchdog body eg like in the accounting world you have the audit firms who are the watchdogs. Of course the EFCC is supposed to be detecting and capturing the corrupt people/organizations but they too might be infested internally. So then someone honest from higher up has to sack the EFCC employees who are putting up unnecessary barriers and showing signs of inefficiency.

4) There are plenty of evidence that are uncovered by newspapers so why can’t the EFCC? May be the EFCC members need to be selected from honest journalists?

5) When entire organizations have become strong due to corrupt deals they are the equivalent of “mafias” and that would need an equally strong (honest) law enforcement agency to break it down. But it needs to be done.

6) An easily accessible special complaints department or phone line needs to be set up where ordinary citizens can call to report a problem of corrupt nature.

After a lot of foot-dragging on the issue by the successive governments, the incumbents in power did finally demonstrates the courage to form the Economic and Financial Crime Commission (EFCC) comprising a retired justice as its chairman and two other eminent personalities to act as the organization’s commissioners. Meanwhile, some 14 moths have passed since the formation of the EFCC. Unfortunately, the anti-corruption body has failed even to put its own house in order, let alone deliver the goods. That is why one fails to see any difference in the behaviour of the organs of the administration that have earned the notoriety of being the hotbeds of corruption. The failure to deliver aside, the organization is still far from standing on its own two feet before it can concentrate on the problems for which it was instituted in the first place.

What are the problems facing the EFCC? On the face of it, one of the problems is the bad blood between two of the anti-corruption body’s commissioners over the proper procedure of officially charging any individual or organization with the crime of committing corruption. The other problem that surfaced since the formation of the Commission is the recruitment of manpower for the organization. So, apparently, it is the bickering of the two commissioners that has rendered the EFCC formed with high hopes in the beginning, ineffective. Strangely enough, they cannot even see eye to with each other to fight the social scourge of corruption, an issue about which people of their stature cannot disagree under any circumstances.

What was the government itself doing when the EFCC was caught up in such unnecessary conflicts of interpersonal nature that stalled the very prospect of the anti-corruption body to deliver? The government, if it was really sincere, could have played its due role in time in order that the EFCC might have overcome the undesirable crisis. Now it is at the CBN’s failed banks initiative that an attempt has been made to resolve the crisis plaguing the EFCC since its birth.

The government of President Goodluck Jonathan certainly deserves thanks for fulfilling the people’s long-standing demand to form the pro-people government. But one should not also think that the responsibility of the government is finished with just the creation of the body to enhance the economy. Even an organization with the loftiest ideal on earth cannot function if it does not have a well-defined structure and a set of rules as its guide to action. The EFCC in question has been handicapped in this respect, too.-our collective-wealth is drifting away; crooked politicians are amassing wealth.. The government bodies responsible for completing the formalities of approval do need to do their job without further delay. A lot of time has already been wasted in unnecessary bickering within and without the anti-graft body. As such, there should be no procrastination for approval of the rules and the organogram for the EFCC. In this context, the spirit of the incumbent EFCC chairman that she would resign if he failed to deliver her job is welcome. All concerned would cherish the hope that the EFCC chief would prove his worth by filing 45 graft cases in a week.

Those in the administration owe a great deal to the people at large. They are expected to work effectively and achieve the goals of governance. The functionaries at different ministries, departments and service agencies have both moral and constitutional obligation to work properly. The EFCC could prove itself useful in keeping them on track by guarding against corruption. In order to be able to perform this role the ACC should first be made effective by approving its organogram and rules framed under the EFCC Act. The diversion of public funds speaks volumes about the discriminatory approach being deliberately adopted by authorities holding higher offices today, adding that “on the one hand, the government is blowing the trumpet of taking steps to put an end to unemployment, on the other, some of its officers under a deep rooted conspiracy are rendering people jobless by dive.

Fighting evil is always hardwork. The good must rise to oppose it as per our patriotic duties. But a lot of people misinterpret the process of “objecting” as though it is peace breaking or the complainant is a “trouble maker”. I have encountered such attitude so frequently here in Nigeria. Whenever I have talked about improvement the standard reply I get is,” Oh this is Nigeria; you need to accept it as it is”. There is a slack and a general helplessness that they cannot make a change. So such attitudes also need to be changed for making improvements.

Our take is that these scandals occur because of power. An upperclassman hazes his plebe because he has power over him. Coups are plotted because the plotters believe that they have the power to overthrow the government. Violations of human rights occur because the military idiot with a gun has power over the unarmed civilian. Corruption occurs because the governors/ local government chairmen have the power to do whatever he wants with the funds entrusted to him.

The country has turned into an international whipping boy for more than one reason. Pervasive corruption in the administration as well as in other sectors of the economy is one such reason. The international watchdog body, Transparency International (TI), has repeatedly branded Nigeria as one of the corrupt countries of the world. But the culture of corruption has become so deeply embedded in every tier of the administration, business and different other sectors of society that the reality on the ground has hardly changed for the better, notwithstanding the Transparency International (TI)-labeling and all the bad press at home a

nd abroad.