May I begin by observing the fact of inevitability of law in the human condition. Making such an assertion before a gathering such as this might amount to preaching before the converted.
Yet, the fact cannot be over-stated, especially at a time like this when there are lingering doubts regarding the place and role of law in a situation of anomie, when the jury seems to be out regarding whether or not Nigeria had become a failed or failing state.
Nigeria is currently at a cross-roads when a large majority of our compatriots have almost totally given up on the law as an instrument of social control, means of conflict resolution and regulator of human interaction. At a time like this when there is general disillusionment, mass self-doubt and growing resort to self-help, any profession of determination by government to contain the ogre of corruption is apt to be met with loud yawns of disbelief and hopelessness from a people who now believe that only the Almighty can come to the rescue of the nation.
Yet, we lawyers are something of miracle-workers who believe there should always be a role for the law however seemingly impossible the situation.
It is against this backdrop that it is intended to interrogate the role of law within the miasma of corruption in which the country is currently luxuriating with a view to elaborating a prognostication of what awaits the nation in the immediate future and beyond. Accordingly, it is intended to re-examine the role of law in human affairs generally before assessing Nigeria’s score card as far as corruption is concerned and reach some conclusion regarding the fate of the country except and unless drastic decisions are taken regarding what has been the most virulent threat to the nation’s survival.
The Role of Law as a Regulatory Mechanism
According to Lon Fuller, the law exists, essentially as a facilitator of human interaction. In other words, law is not an end in itself but a means to an end. Whereas law is, in the language of Roscoe Pound, a balancer of conflicting interests and potent instrument of social engineering, many continue to perceive law in the context of maintenance of social control, stability and order without which it is impossible for any society to make progress.
Indeed so critical is law that it is often contemplated as the alter ego of society itself. The motto of some law societies in our universities is derived from the Roman maxim, “Ubi societas, ibi jus,” a fact which is not lost on even laymen who recognize the ubiquity and inevitability of law in the scheme of things.
Accordingly, it is clear to all and sundry that law is indeed the last bus stop before anarchy and chaos set in. The rule of law is eminently preferable to the rule of man and that of force which heralds the descent of society into the rule of the jungle where Hobbes had reminded us, life was solitary, brutish, nasty and short, with man engaged in a war with other men, operating in a situation where might was right, survival of the fittest prevailed, there was certainty of law as well as an impartial arbiter.
Accordingly, it was the arbitrariness of man in a state of nature which compelled him to transit to a state of civil society of known and certain laws, administered by impartial judges whose powers were not absolute but regulated and delimited by the social contract. When this situation becomes adumbrated by separation of powers, checks and balances, equality before the law and due process of law, human beings enter the state of civil society and the rule of law.
The beauty of this situation is that it enables social strife to be avoided while conflicts are channeled away from the streets to the peace and serenity of the court-house, where matters are handled by judges sworn to do justice to all manner of men, without fear, affection or ill-will, thereby ensuring satisfaction to litigants and respite as well as catharsis to the rest of society.
The Ogre of Corruption and Nigeria’s Well-being
Nigeria’s score card in relation to corruption is proverbial. We have consistently maintained a leadership position among the world’s most decadent as far as corruption was concerned. For example, of the 176 countries surveyed last year, Transparency International placed Nigeria at 139. In fact, it was not too long ago that a prominent member of this Branch, the inimitable Femi Falana, SAN exclaimed in bewilderment that corruption had become the fundamental objective and directive principle of state policy in this country!
If in the 1960’s, unjust enrichment of 100,000 pounds by a government minister was considered by him “chicken feed,” a decade later when the Scania scandal broke, one of the high profile beneficiaries could express surprise that anyone was worried over the matter, more so, as he had paid tax on his unearned income! By the time of the Siemens, Halliburton, Keith Hughes and other scams, the Nigerian ruling class had completely parted company with any sense of shame by warmly embracing what Ted Heath, the late British Prime Minister once called “the ugly and unacceptable face of capitalism.”
Today, the situation could not be worse. Not only is nothing beyond Nigeria’s plutocrats who don’t bat an eyelid when running away with the questionable and extortionate so-called fuel subsidy, or pension funds that could have alleviated the suffering of those who had invested the better part of their lives serving the nation or ensuring that appointments, promotions and other preferment, more often than not, come except and unless such was accompanied with payment of fat bribes. Indeed things had gotten so sordid that the British prosecutor of one of our country’s most brazen looters of our patrimony could wonder aloud at how it was possible in the country for a common thief to secure the key to the Government House…
It is clearly beyond question that corruption or, indeed, impunity now constitutes a clear and present danger to the survival of this country. To the extent that criminal law is a mirror of the tolerance level of a people, to that extent can the observation be made that corruption appears unstoppable in Nigeria today arising from the complicity and duplicity of the powers-that-be.
Not only are obviously corrupt individuals flaunting their ill-gotten wealth shamelessly before their less opportune compatriots, they are often rewarded with national awards, chieftaincy titles, honorary degrees, or allowed to occupy front-row pews in churches or celebrated in turbanning ceremonies and frequently requested to chair wedding receptions, they even have the effrontery to pontificate on moral virtues and demand of their incredulous fellow countrymen and women to make necessary sacrifice towards rescuing the nation! We are now faced with the situation, as our people say, of a certified rogues being appointed society’s treasurers!
Nevertheless, a gathering such as this should not feel offended if one was to ask, what has been the response of law to this debilitating and depressing situation? Afterall, lawyers are wont to extol the overarching importance and role of the law in providing answers to critical issues confronting society.
Curbing Corruption: The Success and Failure of the Law
Perhaps, it is necessary to observe that even our colonially-begotten criminal legislation contained provisions deprecating official corruption, apparently in a bid to teach the natives one or two things about propriety. However, it is the post-colonial effort to reduce, if not, in fact, eliminate the cankerworm of corruption that here calls for interrogation.
Our military conquistadores who had brandished all manner of reformist agenda when they came on board did not find it expedient to overhaul the existing generally ineffective and ineffectual legal machinery on corruption, limiting themselves to confiscation by decree of ill-gotten wealth of some politicians or sentencing them to long incarceration through military tribunals. Paradoxically, however, it was an ex-military El Caudillo that thought it fit to engineer the promulgation of ostensibly anti-corruption laws as well as create institutions under the guise of the Independent Corrupt Practices and Other Related Offences Commission (ICPC) Act, the Economic and Financial Crimes Commission (EFCC) Act, the Money Laundering Prohibition Act.
All of these laws, coupled with the Code of Conduct provisions of the 1999 Constitution could well have been a fool-proof legal framework for prosecuting the much-trumpeted war against corruption. However, all that came to naught as a result of selective enforcement, double standards, ad hominem application and other lapses that enabled fat camels to pass through the eye of the Nigerian needle.
What is more, the inclusion of new-fangled notions of plea bargaining tagged “compounding” enabled some corrupt personalities to get off with slaps on the wrists to the chagrin and discomfiture of helpless Nigerian on-lookers who were earnestly looking forward to inflicting long terms of imprisonment on those who had frittered away with public resources which could have gone a long way in alleviating their suffering. The sense of catharsis which severe penalties for corruption would have engendered left the masses with discomfiture, ending up by seeking solace in the eternal prayer of the distraught and helpless: “God dey!”
They watched in utter disgust as privileged accused persons hired the most celebrated legal practitioners, who exploited every technicality in the book to either secure injunctions against trial of these selfsame individuals or argued against admissibility of electronically generated evidence or, in the final analysis, won for their clients mere fines or unconscionably disproportionate and symbolic terms of imprisonment, with little or no regard for the signals such cozy treatment of looters of the public treasury was sending to society at large.
In a country where petty thieves are visited upon with the severest punishment, it is quite bewildering that the ruling class can so brazenly display its solidarity with its members who had been found to commit breach of the Eleventh Commandment of bourgeoisdom: “Thou shall not be caught”! And, if all else failed, some of the most notorious members of the nation’s rogues’ gallery could rest assured of having bestowed on them an amnesty or prerogative of mercy, courtesy of even the highest levels of government…
The level of corruption and impropriety among some judicial officers and law-enforcement officers as revealed in recent times is such as to make one wonder if gold rusts, what should be expected of iron. For, there is now wide suspicion that the figurine of Themis that adorns our court-houses is really a sham as the Lady of Justice herself can actually be “seen” and,persuaded to either peep though her blindfold or even totally remove it and tilt the scales of justice in favour of a litigant, if only the price was right! Indeed so sordid is the state of affairs in Nigeria today that one can only pose the question Juvenal had posed many centuries ago: Quis custodiet ipso custodies?
Corruption and the Future of Nigeria
Today, Nigeria is at a cross-roads. Buffeted on all sides by innumerable political crises, socio-economic downturn, terrorism, kidnapping, ethnic conflict, instability, incompetence bordering on leadership failure, fear and collective self-doubt, the portents could not be worse for our dear country. When to all that is added ravaging corruption and loss of shame by those who pose as the nation’s ruling class, it becomes clear that the country has to stem the tide of imminent collapse by overhauling its legal system, especially sanctions prescribed for corruption.
Admittedly severity of sanctions is not as critical as certainty of punishment. Nevertheless, the slip-shod manner we have hitherto handled the poison that corruption represents to our collective well-being suggests that a new way has to be found to contain the ogre. We might need to borrow a leaf from other jurisdictions like China and Singapore in order to put a cap on the high incidence of corruption in this country.
Even if many might be averse to the suggestion of treating corruption with execution by the firing squad, the time is now ripe to consider incarceration for life for those who commit vile and venal crimes of stealing from the public purse. Besides, there is a crying need to send the right signals to the rest of the population and the international community to the effect that we are indeed a self-respecting people, wedded to zero tolerance for corruption, opposed to impunity and dedicated to the promotion of due process and equality before the law.
Pursuant to the necessity of creating a better society, it is high time we jettisoned an ill-digested notion of plea bargaining and exact severe penalty for corruption, an infraction that approximates a crime against humanity, with all consequences arising therefrom. We cannot continue to accept a mockery of our national values through the actions and attitudes of a few vermins who would stop at nothing in appropriating to themselves what constitutes our national patrimony.
If we are truly intent on securing respect for our flag, passport and good name, we must do whatever needs to be done to join the rest of humanity by evincing the will not to condone corruption. Failure to take immediate action along these lines would only result in our being grudgingly tolerated by the rest of the world in spite of our much-vaunted status of “Giant of Africa” with a manifest destiny to lead Africa and the entire black race.
Professor Oyebode is Professor of Law and Chair, Office of International Relations, Partnerships and Prospects, University of Lagos.