Wednesday, 23 December 2015

LEAKED: Why Buhari insisted on having Amaechi, Fashola

LEAKED: Why Buhari insisted on having Amaechi, Fashola in his cabinet despite massive opposition — by Itse Sagay

Ttse Sagay, a professor of Law, is the Chairman of the Presidential Advisory Committee on Anti-Corruption. In this interview with PREMIUM TIMES’ Ben Ezeamalu, he spoke about his committee’s assignment as well as the present and immediate past administrations’ fights against corruption.

PT: Let’s talk about the Presidential Advisory Committee of which you are chairman. How far has the committee gone with its assignment and are there any challenges so far?

Sagay: You know, obviously, that it’s not everything we do that I can say. The committee, to a certain extent, is working under a sort of protocol of low profile: do a lot behind the scenes but do not project yourself all over the place. So that means I cannot tell you everything we have done. But I’ll tell you some of the essentials.

I think the first point I need to make, that this committee is a coordinating committee. In other words, it is to coordinate the fight against corruption in the country. That process of coordination includes the following: we will liaise with all anti-corruption agencies, we will ensure that they are cooperating, rather than competing.

We will also look at what they are doing individually, to find what challenges they are having. For example the challenge of training their manpower with regards to prosecution. We are doing something about that (So many cases that have not been concluded were suspended and all that). Is it equipment? Is it finance? Or is it that there are some people within these agencies that are in fact sabotaging what the agency is doing by cooperating with the very people who are being investigated. Things like that are also happening.

Those are some of the things and, as I said, we want to create synergy between all the various anti-corruption agencies so they are working and cooperating together, supplying expertise where one lacks, supplying equipment where the other lacks. We are doing that right now.

Secondly, having asked all these questions, we then arrange to provide assistance to meet those gaps which they have. For example we are in touch with various international bodies who have given us their assurance that once we know what the agencies need, they will provide the assistance to make up for any shortcomings that they have in any of the areas like training, equipment and so on.

We have been in touch with many of them and they have really been very generous in the way they have come forward to meet us.

Then secondly, very major thing, is the reform, improvement, and application of the Administration of Criminal Justice Act. So administration of criminal justice generally but with specific reference to the Administration of Criminal Justice Act of 2015.

You saw the recent explosion in the country over the Supreme Court’s decision where there was so much controversy whether the Supreme Court ought to have granted a stay regarding  the Code of Conduct Tribunal operations.

So our job is to ensure that this particular law works. And the reason why it has to work is because before it the previous law was not working. You charge somebody to court for corruption, the first thing the person’s lawyer does is to file a preliminary objection challenging the jurisdiction of the court, challenging the validity of the charges, and so on. And they would now compel the court to concentrate on these preliminary matters and completely forget the charges which brought them to court. And, say, if after two or three years they lose, they would appeal to the Court of Appeal. They would not say ‘Ok let us hear the case now.’ No no no. They will appeal to the Court of Appeal and knowing the mentality and the culture of the judiciary.

Once you say you appeal, the High Court is so frightened it will suspend its proceedings. And so the thing goes on to the Court of Appeal. And they go through the same rigmarole, two-three years, court rules that the lower court has jurisdiction. They appeal to the Supreme Court. And that goes through another two-three years rigmarole. So by the time they finally say the court has jurisdiction we are talking of 10-12 years. By the time you come back to the High Court to actually hear the case, witnesses have died, retired, the investigating police officer is retired, he’s no longer there. Those who are familiar with the case in the ministry have become judges. So the case dies a natural death and they create what we call ‘prosecution fatigue.’ That’s what used to be.

Now under this Administration of Criminal Justice Act 2015, all these problems have been solved. That Act says there must be no adjournment, adjournment is prohibited. Once the case starts, it has to go on from day to day till it’s concluded. There are provisions where there is an extreme need for an adjournment, the judge uses his discretion to grant two weeks, 14 days. And this can be done five times during the life of the case, after that the judge doesn’t have the competence, the case must go on till the end. That’s number one.

Number two, let’s go over what I said just now, somebody brings a preliminary objection, he attacks the jurisdiction of the court, he says the charge is not properly drawn up, it’s faulty and so on, therefore everything needs to be struck out. Or even brings an action that his client should be discharged, that the charge be quashed. Now, this new Act says if anything like that comes, the court should entertain it, but entertain it together with the substantive issue. So if you bring a preliminary objection now under the new law, the court will listen to you. You argue, you give all your reasons why the court has no jurisdiction, the court will be taking down notes. After you finish all that the court will say ‘fine’ and put it aside ‘I’ll rule on it.’ Now let’s go to the main case. They will then hear the corruption case which would have been postponed until after the Supreme Court, they now hear it to the full. After that the judge will now give a date and come, give judgment on preliminary objection, give judgment on substantive case. Do you see the improvement? You do not have to journey to the Supreme Court and back. Everything is taken together. So if the judge, having heard both the preliminary objection and the substantive corruption case, he will take the preliminary objection first naturally…

PT: (Cuts in) If the judge hears the preliminary objection and delivers judgment…

Sagay: He won’t deliver judgment.

PT: As in, after he heard all the cases. And delivers judgment and it turns out he didn’t have the jurisdiction in the first place to entertain the suit. Does he still have the competence to rule on the substantive case?

Sagay: That’s what I was going to tell you. He gives judgment, he agrees he has no jurisdiction. Then he will say, ‘supposing I’m wrong in saying so, this is the judgment I would have delivered in the corruption case.’ He will still send the man to prison even though he says ‘I have no jurisdiction, but in case I have, I’m sending you to five years imprisonment.’ Case goes on, to the Supreme Court. The Supreme Court will now look at the two. The Supreme Court may agree with him and say ‘oh, she has no jurisdiction, I uphold her. But I will also look at the substantive matter. If I had jurisdiction, you’d have gone to prison for five years.’ Supreme Court may end up saying yes they have jurisdiction therefore we adopt the jurisdiction and you are going for the five years. Do you see the difference? It’s a dramatic difference. It’s a revolution. So within nine months the case is heard, 18 months it’s finished in the Court of Appeal, in another two years it’s finished in the Supreme Court and you know your fate. No going up and down, the two are taken together. That is the new law.

That’s not all, the new law also says that, previously if you are hearing a case and you are promoted to a higher court, you just drop the case you are hearing, a new judge is now brought to hear it from the beginning, no matter how far you’ve gone. We have a very bad case recently of Erastus Akingbola of Intercontinental Bank. The case was heard from beginning to end, the judge gave a date to deliver judgment, then we don’t know up till today whether this was a plan, they just promoted him to the Appeal Court. The case is back. And since then it has gone through three or four judges, no head no tail. That is gone forever. Once a judge is assigned to a case, even if he’s promoted to the Supreme Court, he must finish it, under this new law.

So our duty as the Presidential Advisory Committee Against Corruption is to ensure that all courts keep strictly to these changes and not go back to the old bad ways. Because many of them have the tendency of going back to the old bad ways. Either because they are ignorant. Either because they don’t appreciate the significance of the new laws or because they are corrupt. So our job is to follow up every case to make sure that there is no falling back. That no judge is granting unnecessary adjournment. That no judge is staying any action.

Another provision of the new law is that if you appeal any ruling of the court, the court will continue hearing the case regardless of the appeal.

My committee is mandated to ensure that all these changes are maintained and sustained and applied unfailingly.

PT: Are there penalties for courts (judges) who go back to these old bad ways?

Sagay: The penalty is that it will be noted and it will affect his performance and judgment and could result to his being retired. Because now there is a system involving the National Judicial Commission, NBA, and, informally, ourselves, monitoring judges and all those things. Once we notice these lapses continue, then they will be recommended first for suspension, case will be heard against them, if confirmed they will be retired. There is now very strict provision, one for productivity, two for integrity. Their work is being measured very strictly.

And another thing we are working on with the Chief Justice and the Attorney Generals, in all these corruption cases, we are identifying judges who are known for their integrity, who are known to be impervious to brandishments of material things, who just have a passion for justice, they are the ones who are going to handle these cases. They will be transferred to the Criminal Division of each High Court and the cases will go to them, and we expect these cases to be determined within nine months. So all these governors whose cases have been in court since 2007 till now, all that will be a thing of the past.

PT: I know you’ve spoken about how the Committee wants to maintain a low profile…

Sagay: (Cuts in) Yes. Ok, let me tell you one or two things that I almost forgot. We are also trying to train these anti corruption agencies on so many things. For example, this prosecution thing, we are presently developing a prosecution manual ‘How to prosecute successfully.’ We are developing, almost getting to the final stage now, which we’ll now pass on to them so that they can follow it. And if they do, they will not fail unless the person is innocent.

We are also developing a plea bargaining manual so that when there’s a need for plea bargaining, you know what steps to follow.

And recently we had a workshop on Section 306 and 396 of the new Administration of Criminal Justice Act on this issue whether a court, whether Supreme Court, Court of Appeal, or High Court has a right to adjourn any matter on appeal. Because that happened recently in Saraki’s case and there was an uproar all over the country. So we had to bring in experts and they have all held that under no circumstances should any court in the country from Supreme Court to High Court grant any adjournment because of an appeal. The case continues at the lower court while his appeal also continues. If he’s convicted at the lower court and he has appealed, the appeal can then overrule the lower court but the lower court cannot be stopped anymore.

PT: The president recently stated that people who looted public funds had started to return them, and that names will be published soon. I wonder if you have any idea as to how much have been recovered so far?

Sagay: No. That’s an area I absolutely have no knowledge about. That has not been brought within our circle.

PT: But your assignment must have given you fresh insight into corrupt activities in Nigeria. How would you rate corruption in Nigeria?

Sagay: It’s depressing. What we have found is that it is present at every level, in every sector, anywhere. There’s no exception. None. We are hearing all the high profile cases but there are so many cases that are not high profile – perm secs, civil servants, directors, even in the private sector, all engaging. It’s as if that is a national passion. So that if you are not selective, you’ll be overwhelmed.

We are hoping that by the body language of the government, by the example that will be set by those who are prosecuted successfully and by setting programmes we are going to run, programmes in which the public: 1. Will be exposed to the damage that corruption does. When they take 12 billion out of your budget, what does it do to the average Nigerian.

We are going to show all that. And take it to schools, so many places so that people when they hear corruption, they will personalize and not think that government money has been stolen. No no no. What has been stolen is the fee to maintain a clinic where my wife would have had a baby successfully tomorrow. And because of that thing was not there she died in childbirth. That’s the sort of things we want to run down the mind of Nigerians so that they can be hostile to corruption.

PT: Over the past years we have seen you coming out to speak on issues bordering on corruption. How would you rate the previous administration’s fight against corruption?

Sagay: You mean the previous administration’s encouragement of corruption? But you and I know that they were promoting corruption as a way of life. Look at all the revelations which you and I know. In fact, when I started reading it I started laughing because it reminded me of so much of one culture in Delta State where I come from. We have all these young young boys who don’t have a job, who are looking for money anyhow. If there’s anything going on, any party, they’ll go there. If there’s any rich man in town, they’ll go there hoping he’ll throw money. And when one gets and he’s going away, he’ll see the other and he’ll say “You don obtain?” Then that one will go and tell the other “You don obtain?”

The Jonathan government has introduced the culture of ‘You don obtain’ as a national culture. For everybody to be walking into an office somewhere and collecting his share of Nigerian resources and walking away for nothing. So there’s no question that the Jonathan government actively promoted corruption. And has wrecked and ruined this country as a result because we have no money anymore. It’s just incredible that anybody can just wake up and get his share. This man got 100 million, this one got 2.1 billion, everybody is having a share. On what basis? Tompolo had 13 billion. Everybody. As long as you belong to the PDP, you can just walk in some office and collect a suitcase of money and go. Somebody went to the Central Bank and collected 14 suitcases of dollars, $47 million in suitcases. That’s a bazaar, it’s bizarre. That’s not an organized country. That is chaos and total disorder.

PT: Recently, an ex-NIMASA boss was bundled into a bus by security agents despite two courts granting him bail. Are you concerned about the disrespect for court rulings?

Sagay: But he was re-arrested for a new charge. That’s allowed. They were not disrespecting the bail, they had a new charge. For any new charge, police can arrest. So all he needs to do is to ask for bail for that too. You see, it’s all up to us. If you go about committing 50 different crimes, and you are charged for one and you get bail. You can be charged for the second one, third one, fourth one, all the 50 and you get bail for all the 50. That’s what had happened. They were playing football with our money at our various levels…

PT: (Cuts in) But the manner in which he was bundled into the bus…

Sagay: (Cuts in) He was resisting. I don’t support it, mark you. I don’t support it. It was humiliating. He could have been injured because it was too rough. But again, a man like that, he’s an educated man, a lecturer, you don’t struggle with the police. ‘Oh new charge? Ok, call my lawyers. This is the new charge.’ Enter the vehicle and go. But to physically resist. I think it’s very foolish for anyone to physically resist the state because you cannot defeat the state.

PT: Critics of the present government say they are targeting only PDP members. That there’s an Amaechi or Fashola who had also had petitions written against them yet nothing was done to them. What do you think about that?

Sagay: Who are the people who wrote petitions against Amaechi and Fashola? Primarily, they are this same people who are afraid of being probed. Who thought these two strong men being in Buhari’s government will so strengthen that government. That the contrast between it and the Jonathan government will be so strong and that they themselves will be exposed. Do you think Wike will want Amaechi to be in any government? He would not. He is so frightened of Amaechi, if he could destroy him he would have destroyed him long ago. There’s nothing he had not done to destroy him. With Mama Patience. There’s nothing they haven’t done. It’s just that the guy is such a clucky, strong, energetic, and witty fellow that just got himself out of all that. Then they just cooked up a panel made up of sympathetic, pro-Wike judges who went there parading themselves in a most dishonourable manner. So it’s nothing to be taken seriously.

The same thing with Fashola. Some people did not want Fashola to be in this government and so they just decided that the best thing to do is to tarnish his name, tarnish his record, which the whole world respects. From the United States to Australia, to the Middle East, to even the United Nations, everybody knows that Fashola has the best record in governance that this country has had since Awolowo. So they just wanted to destroy all that over night because they were frightened of him becoming a minister. That’s why I have a great respect for Buhari. He was unmoved. He was unshaken. He just kept his cool. And when he now came out, what did he do? He made Fashola the symbol of his government. Fashola is the number one minister in this country today. And Transport given to Amaechi is equally important, because we are talking of railways, highways, aviation, and so on. Buhari knows what he is doing most of the time. He doesn’t talk much.

PT: But do you think this government’s fight against corruption so far has targeted only opposition elements?

Sagay: No. It hasn’t. You see, what is happening, I’m a little bit in the know of this, this government is not going out of the way to look for people to prosecute. No. They are prosecuting people whose corruption is jarring them in the face. Corruption that is virtually blocking your road, you cannot move unless you move it out of the way. That’s the type of corruption we are facing. Corruption that has crippled this government now. So when they talk of corruption of Obasanjo, Yar’adua, all these people, that we should go back to that, no complain about that. But if we don’t clear the last five years, the type of corruption we have seen is mind-boggling and not only that, they are all close. You can see the way the NSA’s office was turned into a bazaar. Even after Buhari was elected, they still transferred money, over 27 billion to NSA’s office, after the election. We have to deal with those first. How can you now go back to 1960, to Shagari and so on when you have this low-hanging fruit right in your face. It makes no sense. So it’s not a question of discrimination. It’s a question of going after the obvious, the immediate, the most threatening which has to be taken care of before you move on.