By FEMI FALANA
Nigerians recently voted for the All Progressive Congress (APC) because it promised to change poverty to prosperity, tackle insecurity of life and property, combat impunity and corruption, fix infrastructure, restore rule of law and transparency in governance and make warmer the relationship of the country and the international community. In terms of the ideological orientation of its leadership, the APC promised to promote a private sector-led economic system.
No doubt, the avowed commitment of President Buhari to fight corruption and end impunity in the country has attracted the goodwill of the international community. Apart from his invitation to attend and address the last meeting of the G7, President Buhari was recently in the United States on the invitation of President Obama. Before then, Nigeria had hosted the meeting of her neighbours in the renewed fight against terrorism.
At the meeting of the G7, President Buhari pleaded with the leaders of global capitalism to collaborate with Nigeria in fighting terrorism and in fixing her comatose economy. Convinced that the destiny of the nation lies in the hands of Nigerians I pleaded with President Buhari to look inwards. In particular, I suggested that Nigeria should reject any bailout and make a strong case “for the repatriation of our looted wealth in the vaults of western banks”.
Happily, President Buhari has requested the Obama Administration to assist in the repatriation of about $150 billion looted from the public treasury in the last decade.
Since the war against official corruption commenced under the Buhari Administration corruption has decided to fight back in a vicious way. Apart from attacking the leadership of the EFCC the regime has been accused of engaging in dictatorial and authoritarian tactics by the few unpatriotic elements who have stolen the country dry. While the decision of the Federation Government not to interfere in the work of the anti-graft agencies is a welcome development the National Assembly should forward to President Buhari for his assent the Witness Protection Bill and the Whistle Blowers’ Bill. The National Assembly deserves commendation for enacting both laws together with the Administration of Justice, 2015.
Under the new Act the granting of stay of proceedings and other delay tactics have been banned in the trial of criminal cases. Accordingly, a criminal trial shall be concluded within 6 months unless there are exceptional circumstances which may prolong any trial beyond that period. Indeed, the elevation of trial judges to the Court of Appeal will no longer lead to fresh trial before other judges as judges will be given the fiat to conclude part heard matters.
Those who are opposed to the renewed fight against corruption have begun to accuse President Buhari of waging a persecution war against some alleged enemies. While urging the anti-graft agencies to ignore such campaign of calumny it is germane to remind Nigerians that since 1994 all successive regimes in Nigeria have waged a war against corruption. It was the Sani Abacha junta that enacted the Failed Bank Decree and the Advance Fee Fraud Decree to deal ruthlessly with bank fraud and the offence of obtaining money by false pretences.
Following the death of a maximum dictator, General Abacha on June 8, 1998, his successor, General Abdulsalami Abubakar ordered investigation into the grand looting of the Central Bank of Nigeria from 1993-1998. At the end of the probe it was established that the late military ruler stole about $5 billion from the vaults of the CBN. The said stolen fund has since been traced to over 140 bank accounts in western countries and some remote islands in the world. Based on report of the investigation the Federal Government recovered funds and properties worth over $1 billion from the family and associates of General Abacha. The forfeited assets were promulgated into law by General Abubakar on 26th May, 1999. Upon our request under the Freedom of Information Act, the immediate past Secretary to the Federal Government, Senator Anyim Pius Anyim confirmed that the said funds and assets had been forfeited to the Federal Government.
Upon the restoration of civil rule in May 1999 the Olusegun Obasanjo Administration embarked on the recovery of the remaining Abacha loot.
Contrary to the misleading information of the then Minister of Finance, Dr. Ngozi Okonjo-Iweala, that only $500 million was recovered under her watch we have established that the Government of Switzerland assisted Nigeria to recover $700 million which was handed over to the Federal Government while another sum of $350 million was recovered from family members and business associates of General Abacha in respect of the Ajaokuta contract scam. It has also been revealed that the proceeds from the sale of shares of the late dictator in a refinery located in Sierra Leone worth $450,000 were forfeited to the Federal Government at the material time.
It is on record that the recovery efforts of the Federal Government continued under the Goodluck Jonathan Administration. In justifying the withdrawal of the criminal charges filed against Mr. Mohammed Abacha over his role in the diversion of the stolen fund, the Federal Ministry of Justice disclosed, sometime last year, that another sum of $970 million had been recovered from the Abacha loot. Shortly thereafter, the United States’ Government announced that it had recovered the sum of $458 million from the Abacha loot. The said sum of $458 has not been repatriated to Nigeria for obvious reasons.
During the recent electioneering campaign, President Goodluck Jonathan boasted that his administration had fought corruption more than previous regimes. He therefore warned Nigerians not to vote for General Buhari as he was likely to jail corrupt people. As Nigerians actually wanted corrupt people jailed they decided to vote for the retired General. In fairness to President Jonathan, the fight against corruption under his regime recorded some success. Apart from an ex-governor who escaped the arrest of the EFCC only to be arrested, tried and jailed abroad the era witnessed the conviction of a few influential people who were convicted for stealing billions of Naira but asked to pay ridiculous low fines. Indeed, the regime charged Mr. Dick Cheney, a former Vice President of the United States and the Nigerians who were indicted in the Halliburton scandal even though the cases were struck out for want of diligent prosecution.
The APC recently called on President Buhari to investigate the missing sum of $4.1 billion paid by the NLNG but which was never remitted to the Federation Account by the NNPC. With respect, the call is totally uncalled for in view of the unchallenged audit reports of the NEITI on the subject matter. In its 2013 annual report the NEITI disclosed that “NNPC holds 49% share of NLNG on behalf of the Federation. So far NNPC has reported receipt of $3,789,107,000 as dividends from NLNG for the years 2006 – 2008. However, NNPC did not confirm remittance of the money to the Federation Account. Financial flows from NLNG include dividends and loan repayments which sum up to $4.84billion was received by NNPC during for 2006-2008 audits. This is in addition to the $3.996 billion reported to have been received in the previous audit reports totaling $8.836 billion. The report confirmed that the funds received by NNPC were not remitted to the Federation account.”
NEITI reiterated the finding in its 2014 annual report when it stated, “NEITI audit reports have confirmed that the sum of $8.836 billion has been received by NNPC but not remitted into the Federation account as required by law.” During a recent visit to President Buhari, the NEITI Board members pleaded with him to ensure that the sum of $19.3 billion including the NLNG fund was remitted to the Federation Account by the NNPC. I am not unaware that the National Economic Council has constituted a team of four governors to inquire into the funds being withheld by the NNPC. Disturbed by the alleged monumental corruption associated with the NNPC, Governor Nasir El-Rufai has called for the liquidation of the body.
With respect, it is the interpretation of a section of the law setting up the NNPC, which ought to review. According to the Governor, “the NNPC only remitted 58 percent of the monies earned between 2012 and the first half of 2015. A company with the audacity to retain 42 percent of a country’s money has become a veritable parallel republic!”
Incidentally, when Mallam El-Rufai was the Director-General of the Bureau of Public Enterprises the deductions from the proceeds of the sale of public assets was challenged in the case of Attorney-General of Ogun State v. Attorney-General of the Federation (2002) All NLR 27. It was unanimously held by the Justices of the Supreme Court that “Section 20 of the Public Enterprises (Privatization and Commercialization) Decree No 28 of 1999 provides that the Bureau of Public Enterprises shall establish and maintain a fund from which shall be defrayed all expenditure incurred by the Bureau. …By section 21 subsection (2) of the Decree the Bureau shall cause the net surplus of receipts and payments made to it in every year to be paid to the Government of the Federation.”
In relying on the judgment of Attorney-General of Ogun State v Attorney-General of the Federation (supra), the NNPC has continued to insist that the fund not remitted to the Federation Account is the “expenditure incurred” in the course of its operations. Instead of liquidating the NNPC those who are justifiably critical of the huge fund unilaterally deducted from the revenue generated by the body before remitting the remainder to the Federation Account should demand that the budget of the corporation be appropriated by the National Assembly.
Instead of killing or privatizing the NNPC it should be reorganized to eliminate corruption and waste. The National Economic Council is advised not to waste precious time on the investigation of the NNPC. A firm of auditors should be engaged to study and reconcile the reports of NEITI, KPMG, the Ribadu Panel and PWC on the NNPC. Since the National Assembly has failed to pass the Petroleum Industry Bill it should amend the Petroleum Act so as to exercise parliamentary control over the budget of the NNPC.
Another agency of the Federal Government, which approves its own budget, is the Central Bank of Nigeria (CBN). The CBN believes rather erroneously that its autonomy granted by the Act setting it up does not allow the National Assembly to appropriate its budget.
In the case of Dr. Uzor Ikebudu v. Central Bank of Nigeria (Unreported Suit No: FHC/L/CS/343/2013) wherein the Plaintiff sought declaratory reliefs to compel the Defendant to submit its budgets from 2007-2013 to the National Assembly for appropriation. In opposing the suit the Defendant relied on the independence of the Central Bank of Nigeria by virtue of Sections 1, 5, and 6(3) of the CBN Act, 2007; section 35 of the BOFIA Act, and Section 22(1) of the Fiscal Responsibility Act, 2007. The Federal High Court (Per Saliu Saidu J.) agreed with the Defendant that the action was statute barred with respect to the budgets for the past years of 2007 – 2013 but held that “There is no doubt in my mind that the legislature intended that the CBN must submit its budget to the National Assembly through the Minister of Finance for proper appropriation.”
The reliefs were however granted by the learned trial judge. For challenging the breach of the Constitution by the CBN the trial judge awarded the Plaintiff damages in the sum of N10 million and granted a perpetual injunction restraining the CBN from further failing or refusing to submit its budget to the National Assembly for appropriation on a yearly basis. But in complete defiance of the valid and subsisting judgment the CBN has continued to approve its own budget. On its own part, the National Assembly has failed to exercise oversight powers on the CBN in line with the terms of the said judgment! In the circumstance, it is hoped that President Buhari will henceforth incorporate the budget of the CBN in the Appropriation Bill submitted to the National Assembly.
There is no doubt that official corruption has continued to arrest the development of the country. This is not unexpected given the nature of the country’s neo-colonial capitalist economy compounded by impunity on the part of the ruling class. If the Buhari Administration is going to confront the menace of corruption it has to ensure that the stolen wealth of the nation is recovered and invested in promoting the welfare of the Nigerian people.
To that extent, all the welfare laws enacted pursuant to chapter II of the Constitution should be implemented in order to promote the welfare and security of the people. The EFCC and ICPC should leave no stone unturned in the recovery of the nation’s looted wealth. Henceforth, state and local governments should cooperate with the EFCC in the investigation and prosecution of those who have diverted public funds belonging to them.
To guarantee the maximum cooperation and participation of the citizenry in the fight against corruption the Federal Government should direct all public officers to comply with the provisions of the Freedom of Information Act. In addition, President Buhari should sign the Whistle Blowers Bill and the Witness Protection Bill into law. In granting autonomy to the anti-graft agencies the regime should ensure that there is no selectivity in the investigation and prosecution of corruption cases while the rights of all criminal suspects are respected.
This column is a revised version of the Keynote Address delivered recently by Mr. Falana, SAN, at the 7th Annual Distinguished Lecture of the Nigerian Institute of Quantity Surveyors (Lagos State Chapter).
The Role of the People in Anti-corruption War
By FEMI FALANA