Dr Muiz Banire, SAN
The best starting point of a paper of this nature is the quotes attributed to the President of Nigeria, “We must kill corruption before corruption will kill us”, “if we don’t kill corruption, corruption will kill us”, whichever is adopted. This statement, in one breath, is to depict the extent of corruption in the country and, on the other hand, to demonstrate the degree of commitment of the administration towards fighting corruption in the country. Due to the antecedent of the President as a former military Head of State, Nigerians tended to believe this statement of Mr. President and were highly optimistic of the ultimate taming, if not the elimination, of corruption in the country. Alas, to Nigerians’ dismay, this dream never came to pass as corruption would appear to be festering instead.
To an average Nigerian, corruption has finally assumed a way of life in the country; not so much because the heads are not competent or unwilling to perform, but due to other extraneous factors. Not even the Treasury Single Account could help the situation. I personally suspect that part of the fundamentals lacking in the crusade against corruption in the country is the total absence of national values and virtues. There is no minimum standard of acceptable conduct anymore. Everything has become relative and comparable. Recently, I read about the rousing welcome reception for a senator and gubernatorial candidate of a political party who was convicted of crime but granted bail pending his appeal. This is now typical of scenarios we observe often in the country. Nigerians continue to colour crimes in terms of tribe, ethnicity and religion by way of unholy comparison. Rather than condemning a person that has misappropriated their resources and shaming him, they end us querying why it should be their brother in faith, ethnic brother or a member of their tribe that is apprehended and prosecuted.
This is the abysmal level to which the country has degenerated in contemporary times. Apart from several other factors that militate against the realization of the objectives of the various anti-corruption laws in the country, one critical area that needs to be urgently tackled is political influence as it relates to the security of tenure of the headship of the anti-corruption institutions. It is no news that the crawling administration of justice is a factor, just as poor investigation and prosecution are also contributory factors. Be that as it may, as indicated above, my area of concern in this piece is the protection of the seats of the heads of such institutions in the face of confrontation with the political heads, particularly the President of the country. It is not all the time that a country is lucky to have a personality such as the President that will not engage in influence peddling or dabbling in the operations of the anti-corruption agencies; though some argue that such is happening out of his aloofness rather than virtue.
Whichever is the case, such is not a usual occurrence. Thus, where an inept personality finds his way into the presidency, then the challenge arises immediately as per the anti-corruption war, particularly the capability of the occupier of such anti-corruption body headship to withstand any threat from the President. The point one is struggling to make is that where the head of such body insists on propriety, he may be shown the way out of that office as it happened with Sanusi Lamido Sanusi when he was the governor of the Central Bank of Nigeria under President Goodluck Jonathan. The question, therefore, is: what is the security against this type of onslaught? It is in this context that one feels compelled to interrogate the security of tenure provided the occupants of the headships of the anti-corruption bodies in Nigeria.
There are three main anti-corruption bodies in Nigeria: the Economic and Financial Crimes Commission (EFCC), the Independent Corrupt Practices Commission (ICPC) and the Code of Conduct Bureau (Conduct Bureau). I have taken a look at the various legal frameworks of the agencies and I tend to conclude that both in terms of appointment and removal, the only head that is most vulnerable is the chairman of the EFCC.
While in terms of appointment process, all the three heads of the agencies are meant to obtain Senate clearance, presumably after thorough screening by the senators, before the ultimate appointment into their respective offices by the President, same cannot be said of the removal process. For the purpose of removing the chairmen of the ICPC and the Conduct Bureau, the address of the Senate, supported by not less than two-third of the members, is a pre-requisite.
The ambivalent area, however, is whether such two-third endorsement must be that of the total membership of the senators as inaugurated, or just two-third of the number of the senators present at such sitting. This issue is yet to rear its head but whenever such crops up it is strongly advocated that it must, as of necessity, be two-third of the total membership of the Senate. This is crucial as we all know that a sizeable number of the senators hardly attend most of the plenary sessions of the Senate. Hence, it will be comical to allow just two-third of those in attendance in the circumstances, which on some occasions might not be up to 30 members. Thus, neither the chairman of the ICPC nor that of the Conduct Bureau can be arbitrarily removed by the President of the country. Even in instances where such removal is desirable, there are specified grounds upon which such removal can be triggered. For instance, as in the law setting up both the ICPC and the Conduct Bureau, particularly the provision governing the removal of the chairmen, it must be for the “inability to discharge his function (as a result of infirmity of the mind or body or any other cause); or misconduct” generally. Other than those stipulated grounds, the chairman of either the ICPC or the Conduct Bureau cannot be removed.
As impressive as the grounds are, the only danger is that the term “misconduct” is undefined. This is, therefore, capable of abuse potentially. There might be the need in the subsequent review of the legal instruments to clearly define the term, to eliminate any ambiguity that can be exploited. The alternative is to directly incorporate that contained in the Constitution and restrict it to that. Beyond the above, the chairman of the Conduct Bureau further enjoys the security of tenure till the age of 70 years while that of the ICPC can only be in office for the maximum period of 10 years. Unlike in the above instances of some seeming security of tenure, the EFCC chairman can be said to be naked when it comes to security of tenure. Although the law setting up the commission specifies the tenure at first instance to be four years, such is renewable for another tenure of four years maximally.
The first noticeable discrimination against the occupier of that office is a reduced tenure compared with that of the other two chairmen. While it may not be contended that the occupancy be extended till the age of 70 as in the Conduct Bureau, I believe that alignment of the tenure with that of the ICPC is important. There is nothing that accounts for the discrepancy in tenure. Hence, it is suggested that the tenure be extended to five years each with the maximum of 10 years as in the ICPC Act. In addition, I am of the view that, considering the nature of the task undertaken by these heads, the split of tenure be jettisoned in favour of a single tenure of 10 years each. This will eliminate the exploitation of the renewal as a bargaining tool by a corrupt leader or members of parliament. As indicated above, the EFCC chairman can be removed by the President at any time at his pleasure, subject to the specified grounds.
The grounds, however, again surpass that of the Conduct Bureau and the ICPC, that is, beyond the question of the inability to discharge the functions of his office due to infirmity and others; there is an additional ground that is, in my view, omnibus and capable of being abused by the President in the removal of the EFCC chairman. The ground is to the effect that, “if the President is satisfied that it is not in the interest of the commission or the interest of the public that the chairman should continue to hold office, the chairman shall be removed”. Apart from the subjective nature of the ground, the removal can be effected at any time. In all of these, the Senate address or endorsement is not required.
The import of this is that the EFCC Chairman stays in office at the pleasure of the President. This is the perilous state of the occupier of the headship of EFCC as he can be removed without any Senate concurrence or approval. Furthermore, and most precariously, the Chairman can, by virtue of the vague ground, be exited at the pleasure of the President at his discretion.
With this, it is obvious that there is a limit to which the EFCC Chairman can resist interventions and interferences from the President in the discharge of his functions. Once he desires to remain in office, he must, as of necessity, kowtow to the agenda of the President, doing his bidding as and when called upon. Any resistance of his instruction might earn him removal from the office.
Thus, a corrupt President can always take advantage of this precarious and vulnerable situation of the EFCC Chairman to influence his actions. This much was the perception during the tenure of the erstwhile President Olusegun Obasanjo when it was believed that the Chairman of the Commission was being teleguided by the President and used to witch-hunt political adversaries.
Again, the volatility of the situation is further buttressed by the removal of the immediate past Acting Chairman of the EFCC, Ibrahim Magu. Hence, without providing some sort of security of tenure for the EFCC Chairman, it will be difficult to avoid the influence of the President and, by extension, the executive, in the execution of the functions of the EFCC Chairman.
Certainly, the office of the EFCC chairman needs to be insulated against this potential abuse if the country desires performance by the EFCC Chairman. Even as it is, one is not too comfortable with the appointment process in view of the robotic and often compromised legislative houses that we have in the country. So, if we can indulge the appointment process for now, the removal process needs to be tightened. As remarked earlier, it is not all the time that the country can be lucky to have an upright person as the President of the country. It is in the light of the above that it gladdens my heart when I read of the sponsored bill by Senator Chukwuka Utazi proposing the alignment of the security of tenure provision enjoyed by the Chairman of ICPC with that of the EFCC Chairman.
The bill, if eventually passed, will confer similar protection on the EFCC Chairman by ensuring that the legislature becomes part of the removal architecture. The bill should, however, consider the removal of the omnibus ground in the removal provision in the EFCC Act, if not already done. I also pray for the modification of the term to a single one of ten years. The amendment must, as of necessity, be implemented before the exit of the present administration as any new President will want to preserve such absolute and unbridled power of removal in the EFCC Act. A stitch in time, saves nine.
Comments