I thank the Chairman of the NBA Gwagwalada Branch for inviting me to present this paper at this year’s Law Week of the Branch. I am glad at the topic the Branch has chosen as one of its main focus. The topic is most apposite when Nigerians are groaning under the weight of depleted public revenue occasioned by profligacy, waste in governance, misplaced priority, lack of accountability and transparency in the management of public funds, corrupt practices etc. The focus on corruption is the more important in the light of its debilitating effect on the economy of our nation as well as the increasing impoverishment of our people. In this period of change, the role of the legal profession (bar and bench) in combating corruption must therefore be critically reviewed.
The general consensus is that if corruption in our public and private lives is reduced to the barest minimum, the ability of the government to provided much needed infrastructure and services will be greatly enhanced and the cost of doing business as well as the cost of goods and services will also be reduced. There is no doubt we all pay the cost of corrupt practices. Thus the need to combat it must not only be emphasised but seriously tackled as corrupt practices is a burning national issue in our country. The topic therefore seeks to know the role of various facets of the society in the fight against corruption.
This much has been confirmed by. In A.G Ondo V A.G. Federation (2002) 10 NSCQR page 1034 at pages 1122-1123 the Supreme Court of Nigeria, confirmed that corrupt practices are a burning issue of great social concern in Nigeria. In that case, the Court per Uthman Mohammed, JSC stated: ‘It is quite plain that the issue of corruption in Nigerian society has gone beyond our borders. It is no more a local affair. It is a national malaise that must be tackled by the Government of the Federal Republic. The disastrous consequences of the evil practice of corruption have taken this nation into the list of the most corrupt nations on earth’.
Dahiru Musdapher Chief Justice of Nigeria (as he then was) stated correctly at the SERAP Roundtable on 9th February 2012, in his keynote address, “When the rule of law is weak, corruption will remain a nagging problem……Corruption in the Justice sector is a keystone to corruption throughout society. Without an honest criminal justice system, the wealthy, especially the corrupt, can escape the consequences of their crimes. Such impunity reduces the perceived cost of corruption. The risk that corrupt activity will result in imprisonment and accompanying public humiliation is minimal. The gains from corruption are therefore not discounted and there is thus little reason beyond personal integrity not to engage in corrupt acts…..Metaphorically, a corrupt judge has been described as more harmful to the society than a man who runs amok with a dagger in a crowded street. The latter as you know can be restrained physically. But the former deliberately destroys the moral foundation of society and causes incalculable distress to individuals while still answering “honourable”.
That corruption has eaten deep into the fabric of the legal profession and indeed into the administration of justice is a readily admitted fact. This has been variously admitted by the bar and the bench. On February 17, 2012 the then President of the Nigerian Bar Association, J.B. Daudu (SAN) accused senior lawyers and retired judicial officers in the country of aiding and abetting corruption in election petitions. He made the allegation while speaking at the valedictory session held in honour of the late Supreme Court Justice, Anthony Aniagolu.
J.B. Daudu (SAN) specifically said some senior lawyers and retired judicial officers serve as bribe couriers between politicians and election petition tribunals. He did not name the senior lawyers and retired judges involved, but ear him: “Sadly it is no longer a moot point that the corruption that encompassed the larger society has infiltrated the justice sector. I make no distinction here between the Bar and the Bench. Corruption is now a live issue that is threatening to tear apart the foundations and fabric of the society. We are no doubt aware that some of our colleagues including very senior counsel and at times eminent retired judicial officers go about offering their services as consultants particularly in election cases for incredible sums of money so as to act as conduit between their client and the election court. The end result is to facilitate ready-made justice for persons they are acting for. We must strongly deprecate this practice. Our members and the public should feel free to avail themselves of this NBA anti-corruption body.”
In a speech he delivered on behalf of the Nigerian Bar Association after the appointment of Honourable Dahiru Musdapher as Acting Chief Justice of Nigeria, J.B. Daudu SAN noted that the then Acting CJN was taking over the mantle of leadership of the Nigerian Judiciary at a time when the credibility and image of the justice delivery system has been severely dented. According to him ‘The events that led us to this point are known to all. Leaving the issues that are sub judice aside, there are question marks on the ability of the judicial system to deliver justice rooted in the universal principles of the rule of Law and constitutionalism. Several factors of which the most dominant is corruption have been identified as the bane of progress in the Nigerian judicial system. It is clear that all is not well unhindered opportunity to at least lay the foundation for change and reform. That your lordship has until July next year to engineer this transformation is not a disadvantage but is indeed a positive sign. The advantage is that a reform agenda that has progressed beyond the stage of conceptualization confronts your lordship. The Bar stands ready to work with your lordship to reverse the plague that now bedevils the legal profession and the justice sector’.
I will separately discuss the role of the Bar and the judiciary before lumping the of the law enforcement agencies, religious organisations and traditional institutions.
MULTILATERAL EFFORTS AGAINST CORRUPTION
The United Nations Convention against Corruption, UNCAC as it is generally called is a multilateral convention negotiated by members of the United Nations. It is the first global legally binding international anti-corruption instrument. In its 71 Articles divided into 8 Chapters, UNCAC requires that States Parties implement several anti-corruption measures which may affect their laws, institutions and practices. These measures aim at preventing corruption, including domestic and foreign bribery, embezzlement, trading in influence and money laundering.
UNCAC is intended to strengthen international law enforcement and judicial cooperation, providing effective legal mechanisms for asset recovery, technical assistance and information exchange, and mechanisms for implementation of the Convention, including the Conference of the States Parties to the United Nations Convention against Corruption (CoSP). The United Nations Office on Drug and Crime promotes the implementation of UNCAC.
Corruption can be prosecuted after the fact, but first and foremost, it requires prevention. An entire chapter of the Convention is dedicated to prevention, with measures directed at both the public and private sectors. These include model preventive policies, such as the establishment of anticorruption bodies and enhanced transparency in the financing of election campaigns and political parties. States must endeavour to ensure that their public services are subject to safeguards that promote efficiency, transparency and recruitment based on merit.
Once recruited, public servants should be subject to codes of conduct, requirements for financial and other disclosures, and appropriate disciplinary measures. Transparency and accountability in matters of public finance must also be promoted, and specific requirements are established for the prevention of corruption, in the particularly critical areas of the public sector, such as the judiciary and public procurement.
Those who use public services must expect a high standard of conduct from their public servants. Preventing public corruption also requires an effort from all members of society at large. For these reasons, the Convention calls on countries to promote actively the involvement of non-governmental and community-based organizations, as well as other elements of civil society, and to raise public awareness of corruption and what can be done about it. Article 5 of the Convention enjoins each State Party to establish and promote effective practices aimed at the prevention of corruption.
The Convention requires countries to establish criminal and other offences to cover a wide range of acts of corruption, if these are not already crimes under domestic law. In some cases, States are legally obliged to establish offences; in other cases, in order to take into account differences in domestic law, they are required to consider doing so. The Convention goes beyond previous instruments of this kind, criminalizing not only basic forms of corruption such as bribery and the embezzlement of public funds, but also trading in influence and the concealment and laundering of the proceeds of corruption. Offences committed in support of corruption, including money-laundering and obstructing justice, are also dealt with. Convention offences also deal with the problematic areas of private-sector corruption.
Countries agreed to cooperate with one another in every aspect of the fight against corruption, including prevention, investigation, and the prosecution of offenders. Countries are bound by the Convention to render specific forms of mutual legal assistance (MLA) in gathering and transferring evidence for use in court, to extradite offenders. Countries are also required to undertake measures which will support the tracing, freezing, seizure and confiscation of the proceeds of corruption.
In a major breakthrough, countries agreed on asset-recovery, which is stated explicitly as a fundamental principle of the Convention. This is a particularly important issue for many developing countries where high-level corruption has plundered the national wealth, and where resources are badly needed for reconstruction and the rehabilitation of societies under new governments. Reaching agreement on this chapter has involved intensive negotiations, as the needs of countries seeking the illicit assets had to be reconciled with the legal and procedural safeguards of the countries whose assistance is sought.
Several provisions specify how cooperation and assistance will be rendered. In particular, in the case of embezzlement of public funds, the confiscated property would be returned to the state requesting it; in the case of proceeds of any other offence covered by the Convention, the property would be returned providing the proof of ownership or recognition of the damage caused to a requesting state; in all other cases, priority consideration would be given to the return of confiscated property to the requesting state, to the return of such property to the prior legitimate owners or to compensation of the victims.
Effective asset-recovery provisions will support the efforts of countries to redress the worst effects of corruption while sending at the same time, a message to corrupt officials that there will be no place to hide their illicit assets. Accordingly, article 51 provides for the return of assets to countries of origin as a fundamental principle of this Convention. Article 43 obliges state parties to extend the widest possible cooperation to each other in the investigation and prosecution of offences defined in the Convention.
With regard to asset recovery in particular, the article provides inter alia that “In matters of international cooperation, whenever dual criminality is considered a requirement, it shall be deemed fulfilled irrespective of whether the laws of the requested State Party place the offence within the same category of offence or denominate the offence by the same terminology as the requesting State Party, if the conduct underlying the offence for which assistance is sought is a criminal offence under the laws of both States Parties”.
THE ROLE OF LAWYERS AND JUDGES IN THE FIGHT AGAINST CORRPUPTION
Lawyers play a significant and independent role in the administration of justice as well as in ensuring lawful compliance by persons and entities involved in commercial and financial activities. In September 2015, the Pan African Lawyers Union (PALU) held its annual Conference in Abuja. The theme of the Conference was “Combating Corruption: The Role of the Legal Profession in Africa.”
In a press statement issued by in the build up to the Conference PALU stated that “Lawyers possess a considerable amount of power to stop corruption and could play a lead role in entrenching cleaner business transactions in Africa. Most lawyers, however, lack awareness of the nature and threats of corruption making them vulnerable to, and complicit in, corruption. The statement went to state that even though Africa was one of the fastest growing economies in the world with significant multinational business transactions in mining, energy (oil and gas) and large infrastructure projects, the continent has lost billions of dollars to corruption, adding that such money could have been used to development the continent.
Results obtained from a questionnaire developed by Arnold & Porter, a preeminent international law firm and Fundación Universidad de San Andrés (UdeSA), a foundation whose project has the goal of informing the debate about corruption in Argentina and generating consensus-based policy reforms through a collective action process, showed that there is no universal approach to the obligations and responsibilities of lawyers when dealing with corrupt practices.
The report noted that ‘It is self-evident that lawyers, like all other individuals, should not carry out illegal activities. As the traditional role of lawyers is that of defender of justice and representative of individuals before the law, the fall-out from lawyers being involved in corrupt practices can be far greater than that of other professions, and rightly so. However, the recent legislative changes now take a far broader view of what would be considered a corrupt activity. Failing to report suspicious activity and letting a client know that you have informed authorities about their behaviour are now considered part of the bundle of illegal or corrupt activities. It is these requirements that are having an important effect on lawyer-client privilege and an analysis of this forms part of this report’.
Rule 1 of the Rules of Profession Conduct for Legal Practitioners stipulates that a ‘A lawyer shall uphold and observe the rule of law, promote and foster the cause of justice, maintain a high standard of professional conduct, and Shall not engage in any conduct which is unbecoming of a legal practitioner.
The Council of Bars and Law Societies of Europe (CCBE) which has as its principal object to represent its member bars and law societies, whether they are full members (i.e. those of the European Union, the European Economic Area and the Swiss Confederation), or associated or observer members, on all mat ters of mutual interest relating to the exercise of the profession of lawyer, the development of the law and practice pertaining to the rule of law and the administration of justice and substantive developments in the law itself, made the same statement when it stated that;
“In a society founded on respect for the rule of law the lawyer fulfils a special role. The lawyer’s duties do not begin and end with the faithful performance of what he or she is instructed to do so far as the law permits. A lawyer must serve the interests of justice as well as those whose rights and liberties he or she is trusted to assert and defend and it is the lawyer’s duty not only to plead the client’s cause but to be the client’s adviser. Respect for the lawyer’s profes sional function is an essential condition for the rule of law and democracy in Society.”
In the preamble to the ABA Model Code of Professional Responsibility, it is stated that; “Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfilment of this role requires an understanding by lawyers of their relationship with and function in our legal system. A consequent obligation of lawyers is to maintain the highest standards of ethical conduct…..In fulfilling his professional responsibilities; a lawyer necessarily assumes various roles that require the performance of many difficult tasks. Not every situation which he may encounter can be foreseen, but fundamental ethical principles are always present to guide him. Within the framework of these principles, a lawyer must with courage and foresight be able and ready to shape the body of the law to the ever-changing relationships of society.”
In the context of international money laundering and terrorist financing, lawyers are viewed as “gatekeepers” to the domestic and international monetary system. Some believe that the special relationship between lawyers and their clients gives lawyers an early inside view into crimes that could make their insights invaluable in the war on domestic and international criminal activity. Indeed, the confidentiality obligations of lawyers make them particularly attractive to those who desire to engage in money laundering activities.
Money laundering which is a process by which criminals attempt to hide or disguise the true origin and ownership of their ill-gotten wealth to make it look legitimate is no doubt a very serious issue which everybody must commit themselves to tackling. There is however a need to balance the same with the need to allow the legal profession to regulate itself as well as to protect client’s confidence. I will end this part of the discussion by referring to how some countries have handled this matter
In the UK Lawyers are subjected to Suspicious Activity Reporting (SAR) requirements and internal compliance requirements. Under the UK approach, there is an exception for certain litigation matters. The UK approach makes it a criminal offense for a lawyer to alert a client that the lawyer is filing an SAR with the governmental authorities.
In the EU Directive Approach lawyers are subjected to the SAR requirement with a litigation exception and an exception for “ascertaining the legal position” of a client. In the Switzerland/Channel Islands roach (i.e., Jersey, Guernsey, Gibraltar, and the Isle of Man), lawyers are subject to registration with a regulatory body, licensing, anti-money laundering compliance programs, record-keeping, and SAR requirements.
According to Kelvin L. Shepherd, ‘Many FATF countries have struggled with defining what legal activities should be the subject of governmental regulation. One approach is to include all activities of lawyers within the gatekeeper requirements. Another approach is to include only those activities that the U.S. government may view as not traditionally lawyering activities (e.g., the movement of money or financial assets, opening and operating client accounts, or otherwise dealing in financial assets, property, or company matters for a client, or acting as a fiduciary)’. I favour the second option of only reporting only t hose activities that are not considered traditional lawyering activities.
Some commentators are of the view that Regulations may impose on lawyers the requirement for due diligence, such as client identification and verification of bona fides and record-keeping. To them, Lawyers could be required to maintain, for at least five years, all necessary records on transactions, both domestic and international, to enable them to comply swiftly with information requests from the competent authorities like the EFCC, ICPC and the Police, if such information is proved to be relevant in a criminal investigation. This is to my mind will still amount to attempt to regulate the Legal Profession in violation of its statutory self-regulation.
I am in total agreement with Kelvin L. Shepherd’ conclusion that such reporting will change the fundamental role of lawyers, adversely affect the legal profession, its ethical canons, and the attorney-client relationship. Permit me to quote him in extensor; ’The role of lawyers as independent professionals and their ethical obligations to serve the interests of their clients objectively run counter to the gatekeeper notion that lawyers essentially act as government agents. The Gatekeeper Initiative increases the risk that changing the fundamental role of lawyers may adversely affect the legal profession, its ethical canons, and the attorney-client relationship. The various options under the Gatekeeper Initiative, such as the STR requirement, will entail extensive line drawing and subjective calls. The government may have a difficult time in establishing the demarcation line between purely legal activities and those activities not exclusively performed by lawyers’’.
It is my suggestion that the General Council of the Bar should make money laundering regulations to be mandatorily observed by lawyers as lawyers should be seen to be interested in joining the fight against money laundering and financing of terrorist activities.
The Bar is expected to be knowledgeable, fearless, and truthful. Above all, her members are expected to show total respect for the laws of the land and defend same at any cost. The Bar fails in her duties to the society and the cause of justice where it condones encourages and or fails to take definite actions to eliminate corruption and corrupt practices among its members or condones any form of tyranny from any arm of government.
It is therefore hoped the legal profession will discharge the weighty responsibilities hanging on the shoulders bar and the bench with vigour, truth, dignity and full awareness of the consequences of a failure to act in this regard.
THE ROLE OF THE JUDICIARY
So much has been written on this topic but I find the views expressed in this regard by Tayo Oyetibo SAN, very apt that I shall reproduce them here and adopt same as mine. He stated thus:
There is no doubt that the fight against corruption in Nigeria is a collective one and all hands must be on deck to win the battle. As the saying goes, “it takes two to tango.” Where there is no “offeror” they can be no “offeree”. In other words, corruption persists and reigns supreme in Nigeria because persons in authority have either been corrupted by the system or by the people they come in contact with. If the people unanimously choose not to influence the work of public officers, indeed, the corrupt public officers cannot continue to operate without being exposed. Therefore, there are “corruptors” and “corruptees”. But, the judiciary plays a pivotal and central role in the fight against corruption because:
(i) By virtue of the provisions of the Constitution, all cases are referred to the court for adjudication. Invariably all corruption allegations, investigations and cases are referred to court.
(ii) By virtue of Section 6 of the 1999 Constitution, only the Courts and Tribunals established by law are vested with powers to adjudicate between the State (prosecution) and the individual (accused) and to determine the culpability or otherwise of an accused person in any corruption case.
(iii No body) or institution can condemn a man on the basis of any investigation or findings without recourse to the Court or Tribunal established by Law. To do otherwise will be a negation of the cherished principle of the Rule of Law which is the foundation of our democracy.
(iv) Any findings, decision, determination or pronouncement of the Court on the fate of an individual in respect of any particular allegation is final. The individual concerned may in subsequent proceedings plead autrefois acquit or convict.
Based on the foregoing, it is therefore imperative to posit that the factors that influence the judiciary’s ability to perform its role in combating corruption in Nigeria can be summarized as follows:
(i) Independence: For the Judiciary to play its role in the fight against corruption it must be independent and free from any form of interference or influence in terms of funding, political manipulation e.t.c. This will enable Judges to determine cases freely and competently on the basis of facts presented before them and nothing more.
(ii) The Courts must ensure that cases bordering on corruption are dealt with expeditiously to instil public confidence in the fight against corruption. To this end, the court must ensure that recourse to unnecessary technicalities are avoided or out-rightly rejected
(iii) Competence of Judges: The fight against corruption will indeed be more effective when Judges are properly trained, better motivated, disciplined and committed to duty. The need for Judges to be better trained to handle (corruption) cases cannot be over-emphasised. Thus, his Lordship SAULAWA, JCA, stated this fact clearly in a paper delivered at the Commonwealth Legal Education Association Conference on congestion of cases in Nigerian Courts on 28th -30th November 2000 thus:
“It is not in doubt that the nature of the office and functions of a judge call for a very high sense of duty, probity, integrity and transparency, as such any Judge so appointed, without possessing the above fundamental qualities, is no doubt bound to be a clog and obstacle to justice. As someone would say, “a Judge with little or no learning can be a most dangerous clog in the administration of justice.”
(iv) Incorruptibility of the Bench: A corrupt bench can only worsen the fight against corruption. For the Judiciary to position itself properly against the fight against corruption, it must first purge itself of corruption. It will be a very sad day indeed for the court which is seen as the bastion of hope of the common man to stand as an “accused” in the fight against corruption. This indeed will signify the end of everything.
(v) The prosecuting agencies must provide proper training for prosecutors of corruption cases.
(vi) The courts must be properly equipped with modern facilities to be able to fast-track the determination of corruption related cases and indeed understand the modus operandi of persons accused of cases of corruption.
THE TROLE OF LAW ENFORCEMENT AGENCIES, RELIGIOUS ORGANIZATIONS AND TRADITIONAL INSTITUTIONS
I will copiously refer to the functions of the Police, the EFCC and ICPC to show the role of law enforcement agencies in the fight against corruption.
Section 4 of the Police Act provides that the police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or without Nigeria as may be required by them by, or under the authority of, this or any other Act.
Section 6 of the Economic & Financial Crime (Establishment) outlines the functions of the Commission as:
a. the enforcement and the due administration of the provisions of this Act;
b. the investigation of all financial crimes including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, futures market fraud, fraudulent encashment of negotiable instruments, computer credit card fraud, contract scam, etc.;
c. the co-ordination and enforcement of all economic and financial crimes laws and enforcement functions conferred on any other person or authority;
d. the adoption of measures to identify, trace, freeze, confiscate or seize proceeds derived from terrorist activities, economic and financial crime related offences or the properties the value of which corresponds to such proceeds;
e. the adoption of measures to eradicate the commission of economic and financial crimes;
f. the adoption of measures which include co-ordinated preventive and regulatory actions, introduction and maintenance of investigative and control techniques on the prevention of economic and financial related crimes;
g. the facilitation of rapid exchange of scientific and technical information and the conduct of joint operations geared towards the eradication of economic and financial crimes;
h. the examination and investigation of all reported cases of economic and financial crimes with a view to identifying individuals, corporate bodies or groups involved;
i. the determination of the extent of financial loss and such other losses by government, private individuals or organisations;
j. collaborating with government bodies both within and outside Nigeria carrying on functions wholly or in part analogous with those of the Commission concerning-
(i) the identification, determination of the whereabouts and activities of persons suspected of being involved in economic and financial crimes;
(ii) the movement of proceeds or properties derived from the commission of economic and financial and other related crimes;
(iii) the exchange of personnel or other experts;
(iv) the establishment and maintenance of a system for monitoring international economic and financial crimes in order to identify suspicious transactions and persons involved;
(v) maintaining data, statistics, records and reports on persons, organisations, proceeds, properties, documents or other items or assets involved in economic and financial crimes;
(iv) undertaking research and similar works with a view to determining the manifestation, extent, magnitude and effects of economic and financial crimes and advising government on appropriate intervention measures for combating same;
k. dealing with matters connected with extradition, deportation and mutual legal or other assistance between Nigeria and any other country involving economic and financial crimes;
l. the collection of all reports relating to suspicious financial transactions, analyse and disseminate to all relevant government agencies;
m. taking charge of, supervising, controlling, co-ordinating all the responsibilities, functions and activities relating to the current investigation and prosecution of all offences connected with or relating to economic and financial crimes;
n. the co-ordination of all existing, economic and financial crimes investigating units in Nigeria;
o. maintaining a liaison with the office of the Attorney-General of the Federation, the Nigerian Custom Service, the Immigration and Prison Service Board, the Central Bank of Nigeria, the Nigerian Deposit Insurance Corporation, the National Drug Law Enforcement Agency, all government security and law enforcement agencies and such other financial supervisor institutions involved in the eradication of economic and financial crimes;
p. carrying out and sustaining rigorous public enlightenment campaign against economic and financial crimes within and outside Nigeria; and
q. carrying out such other activities as are necessary or expedient for the full discharge of all or any of the functions conferred on it under this Act.
The Independent Corrupt Practices and Other Related Offences Commission (ICPC) states on its website that its mission is to rid Nigeria of corruption through lawful enforcement and preventive. The Commission envisions a Nigeria free from corruption and corrupt practices. The mission of the ICPC sums up for the role of the law enforcement agencies in the fight against corruption. The agencies are not only to detect the commission of offences but must strive to prevent their corruption.
Religious organisations and traditional institutions also have a crucial role to play. They should equal carry out and sustain rigorous public enlightenment campaign against economic and financial crimes within and outside Nigeria. they should neither give a place of honour to individuals whose wealth are of doubtful origin nor confer them with titles. They should speak out and condemn corruption and corrupt practices. They should not celebrate those who have plundered our national resource. They must ensure that they are given a place of dishonour in their organisations or institutions.
The traditional institutions and religious organisations must not only declare zero-tolerance from corruption, they must indeed uphold lifestyles that attest to that. They must be shining examples of the standard expected of a society that wants to eliminate corruption. They must also refuse donations from persons whose lifestyle cannot be attributed to their legitimate income.
The fight against corruption as stated earlier is a collective one, and all hands must indeed be on deck in order to ensure a corrupt-free Nigeria. The court, which is the final arbiter in our criminal Justice system, but be well-positioned and prepared, both intellectually and otherwise, to handle the great challenge posed by the ever changing dynamics and face of corruption. It must first purge and cleanse itself of all forms of corruption and discharge its duties without fear or favour.
I thank you once more for giving me an opportunity to be part of this Law week. God bless you.
MAZI AFAM OSIGWE FCIArb (UK)
November 17, 2014