Anti-graft war and rights protection

Oyebode

Prof. Oyebode

Keynote address delivered at a Human Rights Summit, organised by the Lagos Branch of the Nigerian Bar Association (NBA)
HARDLY has any issue constituted a graver threat to the very survival of Nigeria than that of corruption, a phenomenon which I once stated has the capacity to put a stop to the country if Nigeria did not do all it can to stop it and put a lid on what Nigerians generally agree has become a cankerworm which had eaten deep into the social fabric. The embarrassment which Nigerians had endured at the world’s gateways upon presenting their passports has been so debilitating that not a few among us are beginning to have second thoughts regarding prospects of the country washing itself clean of this virulent cancer.

Yet, it needs to be admitted that not every Nigerian is corrupt. Many of the country’s elite group can quite easily pass the acid test of probity, integrity and fidelity to propriety and public and private morality. Regrettably, a few rotten apples have tended to negatively affect the reputation of the entire crop, hence the seriousness with which any endeavor to clean Nigeria’s Augean stables is generally viewed. Indeed there is no gainsaying the fact that there might be conflicting opinions regarding how to combat corruption, there is near unanimity on the desideratum of the crusade against it.

It is against this background that it is intended to interrogate the current war against corruption, more especially as the country is believed to be currently administered by votaries of the rule of law, due process and good governance. Accordingly, it seems apposite to come to grips with elephantine phenomenon of corruption and attempt to construct a nexus between it and human rights before evaluating prospects of taming the ogre of corruption, pursuant to the necessity for national survival. It is suggested that our collective success as a people wedded to the notion of democracy and good governance would, to a large extent, depend on the ability of both the government and people to deal effectively with what is, perhaps, the most devastating scourge of our time.

Corruption and the Possible Mortality of the Nigerian State
Although there seems to be a consensus about the corrosive potential of corruption for the Nigerian State, it is somewhat paradoxical that there is hardly any unanimity of views regarding what indeed corruption is. While to some, corruption smacks of any immoral act with capability of subverting public virtues, to others, corruption connotes abuse of public office for private gain or profit. Indeed, it seems plausible to speak of corruption as was once said of obscenity by Mr Justice Robert Jackson of the US Supreme Court: we might not be able to define obscenity but we all know it when we see it!

Nevertheless, corruption implies “undue advantage, abuse of office, undeserved favour obtained through manipulation of rules or status; any untoward conduct occasioned by graft or promise of same.”1 Put differently, whenever and wherever a party performs a service or obligation in exchange for some gratification or refuses to perform his duty as a result of conferment of some benefit or promise of same, corruption would, one way or another, be deemed to have occurred.2 Accordingly, corruption can effectively be categorized into three – petty, ordinary and grand.

By petty corruption is meant illicit conduct by low-level personnel motivated largely by the desire to augment income. This is exemplified by the missing file or “out-of-stock” syndrome and reluctance to perform without gratification by, for example, court clerks in the registry. There is also ordinary corruption manifest in efforts to short-change the State during completion of tax declaration forms, cash advance retirement and other activities actuated by the intention to corner more and more of resources that should ordinarily accrue to the State or employer. Finally, grand corruption encompasses corruptive tendencies of big players by way of advance fee payments, up-front gratification and other unconscionable practices that occur during procurement, supplies and contracts generally for goods and services. Culprits of grand corruption are usually found among public office-holders, big time politicians, the rich, powerful and influential members of the ruling class.

However, it needs be emphasized that corruption is not limited to monetary gratification as categorized above. Corruption can also encompass activities such as influence-peddling, membership in cults, enjoyment of undeserved benefits or privileges and kindred advantages arising from position, office or status.

Accordingly, irrespective of the way and manner by which corruption manifests, the crux of the matter is that it furthers and promotes injustice, inequity and unfairness in human affairs with the deleterious consequence of depriving society generally of services of the best and brightest while enthroning mediocre and second-order individuals in the scheme of things. Under such state of affairs, progress and achievements in society become stymied since the least qualified elements corruptly placed in positions of power, influence and authority almost always are unable to perform in an optimal fashion, thereby depriving society of international best practices and nudging the country towards regress, stasis and ineffectuality.

On the other hand, where and when meritocracy thrives and corruption is reduced to a minimal level and the most resourceful and competent occupy the highest pedestals of policy formulation and implementation, the meteoric rise in socio-economic progress and technological advancement soon becomes evident. This much can be seen from the experience of countries like China, India, Singapore and Korea.

The Nexus Between Corruption and Human Rights
To the extent that corruption entails misappropriation of public resources by private persons, it can be said that corruption constitutes a gross violation of collective rights of members of the community to enjoy what has come to be known here as dividends of democracy. This much is attested to by the UN Convention against Corruption of 2003 which accords recognition to the right of the people to institute legal action against public functionaries who through corrupt practices deprive them of the benefits of democracy and good governance.3 In this connection, one cannot but applaud the industry and tenacity of counsel engaged in the crusade to seek justice for victims of corruption or indeed outright pillage of the public purse.4

Now, it should be emphasized that the right to democracy and good governance is a fifth generation right. As is well-known, human rights have undergone a metamorphosis from the neo-classical age of the 1948 Universal Declaration of Human Rights (UDHR) to concretization under the 1966 International Covenants on Social, Economic and Cultural Rights and Civil and Political Rights and other instruments reflecting solidarity rights, development rights and environmental rights, after which emerged the right to democracy and good governance, women and reproductive rights as well as sexual preference rights while some are today talking of animal rights and even plant rights!

Within the ever-expanding scope of human rights, it does not require great imagination to construct a nexus between corruption and human rights. While the lawyers of some persons accused of corruption would hype on the right of the accused to presumption of innocence, right to counsel of their choice and grant of bail on liberal terms, many would have loved to see confiscation of proceeds of corrupt practices and incarceration of the guilty to long terms as a deterrent to society at large.

It needs be emphasized that many remain uncomfortable with frequent injunctions issued by the courts against trial of persons accused of corruption, dismissal of charges against them on flimsy, technical grounds and mere slapping on the wrists of those found guilty instead of inflicting maximum penalties prescribed by law. Such cavalier treatment of persons arraigned on corruption charges is generally dysfunctional and counter-productive, giving the ordinary people the impression that corruption can indeed fight back and carry the day when everyone should have been on the same page in the difficult but necessary war against corruption. That a person given a clean bill of health in our courts was later to have his just deserts at the behest of the Old Bailey is enough cause to worry that our judges are really neither ready or willing or, in fact, up to the task of playing their expected roles in the epic struggle to clean Nigeria’s Augean stables.

It is extremely worrisome that successive Chief Justices of Nigeria have had to bemoan the fact that our judges are not themselves immune to the corruption virus. If the physicians cannot heal themselves, it would be no exaggeration to declare that in Nigeria, the war against corruption could well be dead on arrival.

However, perhaps, it is not really the fault of the judges who are impelled to apply the law as they find it. Perhaps if Nigeria had overhauled its substantive and adjectival laws on corruption by opting for the inquisitorial instead of the adversary and accusatorial approach and prescribing stiffer penalty for the offence, perhaps things would have been a lot different. Besides, emulating the Chinese attitude to corruption or borrowing from the examples of Hong Kong or Singapore would have ensured greater success in our anti-corruption combat.

As things are today, it would seem that quite a lot still needs to be done in order to strike the necessary balance between human rights and the anti-corruption endeavour. We just cannot continue to embrace the nuances of our inherited procedural jurisprudence and hope to succeed in creating a new Nigeria. Corruption is a Damocles’ sword dangling on Nigeria’s throat and if the country wishes to survive the pernicious threat it poses, we just have to engender new thinking and novel attitudes towards containing the scourge.

Conclusion
Respect for the rule of law and democratic praxis constitutes one of the hallmarks of modern society. By their training and inclination, lawyers are wedded to the notion of due process of the law. Yet, as some great jurists have noted, law cannot and must not stand still if it is to impact on the lives and circumstances of the society.

It is on account of this that the law must be properly seized of the necessity to play an active and progressive role in the task to change our society from imminent threat of anomie on account of the debilitating and corrosive effects of corruption. At a time when the country is still enmeshed in the labyrinths of mass poverty, ignorance and underdevelopment, unconscionable acts of unjust enrichment, privation and undue advantage propelled by corruption are things the country can very well do without.

The struggle to contain the ogre of corruption is one to be waged on all fronts and in a decisive manner in order to ensure national survival and good governance. The simple reason for this is that the war against corruption is, in the final analysis, a war to protect and sanctify the rights of us all as against those of a self-seeking, self-centred, self-opinionated and self-perpetuating group. The needs and interests of the preponderant majority of the people should not be allowed to be held hostage by those of a microscopic and negligible minority. Utilitarianism should always be made to triumph over the uncaring, unfeeling indiscretion and misbehavior by a tiny, self-indulgent and over-pampered clique.
• Oyebode is a professor of law and chair, office of International Relations, Partnerships and Prospects, University of Lagos.



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