Editorial: Institutional Reform – Most Vibrant and Useful Anti-Corruption Strategy

“If we do not kill corruption, corruption would kill us.”

Apt and sharp like a razor, the above Presidential statement would continue to resonate. Clearly, we must tackle corruption head-on. But, how are we going to do it?

Judging from president Buhari’s utterances, demeanour and action since his inauguration, it is clear that there is now a strong political will for fighting corruption in Nigeria. For the fight against corruption to succeed, this strong political will must translate to coordinated and effective legislative/institutional actions, all geared towards laying solid bedrock for decapitating chronic corruption and the impunity that goes with it. Put differently: Institutional/Regulatory Reforms are the path least taken, yet most vibrant and useful.

Institutions are critical because they set the rules of the game, without which we cannot separate corrupt from non-corrupt, just/fair from tailored/crooked; neither can we trace and recover proceeds of corrupt acts. We can spend the whole year analyzing causative and historical antecedents and peering through the crystal balls to see whether the unprecedented stealing of public funds is a result of our nature or nurture, but we will make no progress until we take the pragmatic institutional steps to stop it.

Going forward, we must confront and resolve FIVE key challenges:

Ensure that EFCC and ICPC, the two major anti-corruption bodies do not have overlapping and conflicting duties.
Insulate the agencies from political interference via a constitutional means.
Simplify overarching Laws, like the Anti-laundering Laws
Get Assets/Liability Declaration Right
Take a driver’s seat in Asset Tracing and Recovery in the context of Nigeria’s Stolen Wealth

On Challenge 4, Asset-tracing and recovery are often lost sight of as the pursuit of retribution usually diverts attention. Criminal Law, though a vital aspect of our jurisprudence could be too mechanistic. To achieve a more enduring impact on societal growth, it stands to reason that Criminal Law must have to interact with Criminology, the science of criminal behavior. It may be argued that successful prosecution and recovery of stolen funds are the most beneficial stages of the anti-corruption efforts. The Criminologist may further posit that recovering both the stolen funds and thieves (offenders) ought to be the focus of the struggle.

On recovery of stolen funds, we must be honest to state that the EFCC’s mandate to trace and recover assets has not been very successful. It could be argued that for a country desperate for development, recovery of stolen assets may be more important than incarceration of the offender.

The need for developing local expertise in these areas becomes more compelling when one takes a close look at Africa’s stolen wealth abroad. In a recent Forum on subject, a participant asked a Swiss prosecutor, what do you do when you recover Nigeria’s money? He responded that they set up a Trust Fund and nominate a prominent Nigeria into the board. Clearly, the current system of asset-tracing and recovery, which generally separate the real owners of the asset from it, until certain stringent conditions are met, is not good enough and risks recovered asset remaining entrapped abroad. The United Nations Anti-Corruption Treaty and related international law instruments should provide the bases for challenging the current practice. Nigeria ought to demonstrate readiness to be on the driver seat of this effort by strengthening and creating impregnable institutions and improving speedy, internationally-compliant criminal justice system.

We must also keep our eye on the ball:

We score goals, if we understand that the main reason for the corruption fight is to create an enabling environment for Nigeria to thrive. Corruption hinders business; hence countries with high marks on the World Bank’s Ease of Doing Business’ are also at the high, positive end of the Anti-Corruption Perception index. As we all know, Nigeria has always been at the bottom end of these indices. As we confront corruption, we must aim to release the energies of Nigeria’s entrepreneurs in order for them to drive development that creates sustainable wealth. No country has ever moved from poverty to wealth simply by their citizens, lining up to wait for ‘hand-outs’ from their Federal Government. Capitalism, the seemingly irresistible economic system that the world has embraced is structurally anti-productivity. Under this system, you cannot afford to wait to be given a fish. You just have to be a fisherman/woman.

Therefore, the theme of our November/December Newsletter cannot be timelier. As the year draws to an end, it is crucial to take stock because “an unexamined life is not worth living.” There is also a strong relationship between positive reflections and impactful resolutions. Going forward, Nigeria must ensure that she continues to fight corruption in the right way, without losing sight of the PRIZE.

In this November/December issue, articles were carefully chosen to offer professional insights and practical solution strategies. Our lead article, authored by our Partner and Head of Litigation, Mr Ogugbamila, is practically grounded. It discusses the challenge of Code Conduct Declaration and the jurisdictional/constitutional question that it provokes. The interview of our Wig of the Month, Dr Olisa Agbakoba, SAN, is very insightful. Our Senior Counsel and past President of the Nigerian Bar Association does not need any introduction, but it may be helpful to note, in passing, that Dr Agbakoba, is without any fear of contradiction, one of the most talented and far-sighted lawyers that this country has produced in the last 100 years. His inspirational participation at the recently concluded Commonwealth of Heads of State and Government (CHOGM) in Malta also inspired our Report on ‘Enterprising Nigeria’. Our Wig of the Month also chaired the recently concluded 2015 Investment and Securities Tribunal Workshop in Lagos, the Report of which forms part of our Legal News. We are also publishing engaging analyses on Asset-tracing and the international framework on corruption.

In conclusion, a successful fight against corruption, I emphasize, is but a pathway and not a destination. We need to build on the anti-corruption efforts and create an enabling environment for the emergence of more Dangotes. Therefore, as we tackle corruption, our eye must not depart from the ball: inspiring, arming and leveraging the private sector as the engine of development. On this note, I welcome you to this feast. Have a wonderful Christmas and a Wealthier 2016.

Willy Mamah, PhD (London)

Editor-in-Chief