- ‘Endemic corruption should be tackled through extant laws’
Amidst the call by Senator Ali Ndume on President Muhammadu Buhari to issue an Executive Order over rising cases of unexplained wealth by public and private office holders, lawyers are pushing for the enforcement of existing laws to tackle the menace. AKEEM NAFIU reports
Some senior lawyers have called for a total enforcement of extant and existing laws to address the rising cases of unexplained wealth by individuals in public and private offices.
The lawyers spoke at the weekend on the heels of a call by a former Senate Leader, Ali Ndume, on President Muhammadu Buhari, to as a matter of urgency, sign an Executive Order on Unexplained Wealth as a powerful tool for financial investigation in the country.
To the men of the wig and gown, there’s no need for an Executive Order because there are existing laws, particularly in the Economic and Financial Crimes Commission (EFCC) Act, which empowers the anti-graft agency to question individuals with unexplained wealth.
Senator Ndume had while delivering a lecture titled; “Unexplained wealth and the fight against corruption in Nigeria”, at the University of Ibadan 2021 Distinguished Leadership Lecture, said the president need to issue an Executive Order on unexplained wealth in order to curb corruption.
The senator, who is the Chairman, Senate Committee on Army, was of the view that for corruption to be nipped in the bud, it must be a lifetime struggle and not a one-off fight which must start from politicians to civil servants.
The lawmaker while insisting that the Unexplained Wealth Order must be domesticated in Nigeria, urged the president to send it as an Executive Bill to the National Assembly for approval, subsequent passage and signing into law.
He said: “One should not be mistaken on how good it is to have riches, but toxic riches should be abhorred because it pollutes the society. It changes our good culture, it breeds injustice and impunity.
Every citizen has a role to play. “Our crusade against this monster should start from politicians, top public servants, civil servants down to the local government staff. “For the perpetrators, it is not difficult to identify the tendencies exhibited by the officers, acquiring landed property in and outside the country, having fat bank deposits, buying expensive cars, or marrying so many wives.
“Our whistle blower policy which had stillbirth before it became law must be revisited. The motivation should not just be the reward, but patriotism”.
EFCC’s investigative power over unexplained wealth The Chairman of EFCC, Abdulrasheed Bawa, had while being screened by the Senate, prior to his confirmation, disclosed that the anti- graft agency has the legal backing to investigate unexplained wealth. During the screening, Senator Ali Ndume had asked Bawa about the powers of the EFCC to probe suspicious wealth.
Responding, Bawa said: “Coincidentally, I am the Desk Officer of the Unexplained Wealth Order at the EFCC. This is because during the course of my career, particularly in the last five years, I am not aware of any detective at the EFCC that has worked closely with the National Crime Agency of the United Kingdom (UK). “So, I am fully aware about the Unexplained Wealth Order.
But there are certain provisions in the EFCC establishment Act that more or less gave us these powers. “Section 7, subsection 1b of the Act says the ‘commission has the power to cause investigation to be conducted into the property of any person that appears to the commission that the person’s lifestyle and the extent of the property are not justified by his source of incomes’.
“This means without any complaint, if it comes to our knowledge that you have amassed so much property that are not justified by your source of income, the EFCC can ask questions.
“That is what the simple definition of explanation regarding the Unexplained Wealth Order means. If you have this property, the U.K. will ask you what is this property for?
If you explain that this is how you earned it; so be it. If you do not explain, then, they can further their investigation to determine how you acquired it. “So, I think that looking at this provision, we are covered for now until we see how other jurisdictions have carried on with this Unexplained Wealth Order”.
Lawyers speak In the meantime, some senior lawyers have expressed deep concerns over the rising cases of unexplained wealth by individuals in public and private offices. In tackling the menace, the lawyers called for a strict enforcement of the extant laws against suspicious wealth by relevant anti-graft agency.
Speaking on the issue, Chairman of the Presidential Advisory Committee on Anti-Corruption (PACAC), Prof. Itse Sagay (SAN), sought for a more decisive approach in tackling the menace.
Sagay said: “We have instituted several programs examining the meaning of this exercise of recovering illicit money from people who have stolen and used such funds to acquire property, particularly houses. We have done that several times and it is even part of our recent project.
So, I strongly support it. “However, the process will be conducted in a more reasonable manner or say, scientific way. It simply means that a person who is suspected to have acquired illicit wealth could be monitored over a certain period of time and then his/her legitimate income would be calculated and weighed alongside his acquired property.
“This process involves a lot of things like actually getting information about beneficial owners of companies, and so on. So, once that calculation is made and it is discovered that the wealth is widely disproportionate to the legitimate income, the government is entitled to seize the property and subject the man to scrutiny in order to determine, before the court, how he acquired the property”.
Another member of the inner Bar, Mr. Yusuf Ali, was of the views that there was no need for the president to issue an Executive Order over Unexplained Wealth. He believed there were existing laws that can be used to tackle the menace.
“I commend Senator Ali Ndume for calling the attention of the presi-dent to it. But, there are already existing provisions in the Economic and Financial Crimes Commission (EFCC) Act that covers this issue or has same effect for what he is calling for.
“The section says that people can be questioned to give account of an unexplained wealth. Therefore, if you are living above your income, that provision in the EFCC Act automatically empowers the commission to question and inquire into such wealth.
“But on the contrary, what Senator Ndume is calling for is nothing new and I don’t think that the president needs an Executive Order for this to be done.
This simply requires the activation of the provisions in the EFCC Act which entails that the agency can ask questions from any Nigerian, especially those in public space who are living above their legitimate income.
“So, there is no need for an Executive Order. For instance, It’s more like calling for the president to issue an order that every citizen in Nigeria must be given a military training. It’s already in the Constitution, just that nobody has activated its implementation. The section of the constitution states that every citizen, at a certain age, must undergo military training.
But, since we’ve been ruled by ex-military men who believe that if everyone receives military training, it will neutralise all the braggado, Instead of seeing it as a means of self-defence.
“This very section of our Constitution is being implemented in other serious countries outside Nigeria like the USA, Singapore and so on. Even, Muhammad Ali, in the United States, was imprisoned in 1967 because he refused to be drafted into the armed forces and was also stripped of his boxing title”, Ali said.
A rights activist and Senior Advocate of Nigeria (SAN), Chief Mike Ozekhome, also noted that an Executive Order as being proposed by Senator Ndume will be of no moment in the face of extant and existing statutes which already deal with matters relating to the issue of unexplained wealth.
Ozekhome said: “An Executive Order is an inferior directory instrument of law passed by the president to address certain critical matters. It started in America which operates the presidential system of government that we copied.
Over 13,700 Executive Orders have been issued by successive American presidents since George Washington, the first American president took office in 1789.
“An example was Franklin D. Roosevelt ‘s Executive Order 9066, issued on February 19, 1942, authorising the mass burial of Japanese-Americans during World War 11. Harry Truman’s Executive Order 9981 abolished racial segregation in the US military.
“An Executive Order being merely an act of a president or governor is inferior to an Act of the National Assembly. Where it conflicts with existing laws, it will be struck down by virtue of Section 1(3) of the 1999 Constitution.
The EFCC Act, Money Laundering (Prohibition) Act, the ICPC Act and various other extant laws have already empowered antigraft agencies to deal with persons in possession of unexplained wealth. So, it will be otiose and superfluous for Mr. President to issue an Executive Order dealing with the same issue.
“Nigeria is presently confronted with so many daunting challenges that Buhari should not waste his time pursuing shadows while the Nigerian house is on fire”.
To Mr. Abiodun Owonikoko (SAN), there are enough laws to tackle rising cases of unexplained wealth by public and private office holders. “I haven’t read about Ndume’s proposition but I’m not sure what impact that would do because the Executive Order is meant to block loopholes in the law, where it is not sufficiently explained.
Then, Executive pronouncement would be used to give clarity to the law. “We have more than enough laws to deal with this issue and under the EFCC Act, if you have unexplained wealth, you can always be invited to explain your income. So, I don’t know what the Executive Order is going to do.
“This is because, as far as I know, the EFCC is not meant to be an appendage of the Executive arm but an independent financial crimes and investigation agency, under the supervision of the Attorney General of the Federation.
“Therefore, I’m not sure there is any value in that call for an Executive Order since there are sufficient provisions in the law to tackle such. If there is a political will, anyone with unexplained wealth should be made to account for it, especially those in public offices or holding a position of trust in private establishments”, Owonikoko said.
In his own views, Executive Director, Access to Justice (AJ), Mr. Joseph Otteh, noted that the menace of unexplained wealth is being tackled by the Presidential Executive Order 006 of 2018 issued on 5th July, 2018.
He said: The concept of Executive Order is generally a foreign phraseology, and is somewhat unfamiliar to our Constitution, but in the geographical spheres where the concept is widely used, it usually refers to actions taken by the executive.
In this case, the president, in the form of a policy, to enforce particular decisions.
“In this particular context, it appears that it is already the case that President Muhammadu Buhari already signed such an Order. The Presidential Executive Order 006 of 2018 on 5th July, 2018. The Order preserves assets that are under investigation and restrains the owners of the assets from dealing in them whilst investigations are continuing.
The Order also empowers law enforcement agencies to freeze assets suspected to have been acquired from proceeds of crime.
“The question that may be asked though, is, is such an Executive Order a constitutional exercise of executive power? The question may be a moot one, because courts are exercising jurisdiction to order the temporary forfeiture of such assets pending investigation”.
Dr. Ody Ajike called for a structural reform through a whole of government and society approach to tackle the menace. “Nigeria is indeed a timeless drama. The unfortunate character of Nigeria is the manipulative definition of corruption. Corruption is defined as what other people do.
Every other person is corrupt except the person alleging. It’s a known fact that many legislators love making flowery speeches to excite and tease the citizens. This call is one of such.
“You cannot fight a phenomenon like corruption, so, the idea of fighting corruption is meaningless. We only need a structural reform through a whole of government and society approach to tackle this evil. You can tackle a phenomenon and not fight it. You tackle it to roll it back and reduce its appeal.
“Furthermore, we should learn how not to abuse Executive Orders. Such orders must conform to existing laws and the constitution. Our laws and various Acts of the National Assembly, all lack a definition of corruption but describes corrupt acts. It is my opinion that all issues of this endemic corruption should be tackled through the recesses of extant laws.
We need a critical reform of the strategic cultures of our national institutions to achieve success in the anti-corruption crusade.
“Finally, the concepts of corruption and corrupt acts have enjoyed expanded frontiers in this administration. Finding who is not corrupt may be an elusive search. Injustice is also a corrupt act now.
So, we can expand the net and not allow the administration determine what is corruption the way it suits them”.
*Additional reports by: Tunde Oyesina and John Chikezie