Search for an open society, the cure for corruption
WHEN a few legislators proposed a form of immunity for lawmakers, many Nigerians knew from experience that unless they were stoutly resisted, it would turn out like the Third Term Agenda under the President Olusegun Obasanjo administration that was similarly casually mooted whereas a sinister, grand move was in the offing. Now, they have come again in another guile, write JOE ADIORHO and WOLE OYEBADE.
IT is for no reason that octogenarian, Sir John Ebruke warns in every conversation that veers into politics that "eternal vigilance, my children, will be our saviour".
When an House of Representatives member representing Bayelsa State, Henry Seriake, sponsored a Bill seeking to confer some immunity on lawmakers, he was immediately opposed by vigilant members of the society and some lawmakers.
Seriake is not an ordinary person. He belongs to the ruling People's Democratic Party (PDP) and was the Attorney General and Commissioner for Justice of Bayelsa during the Administration of Chief Diepreye Alamieyeseigha. So, he should know what he is doing with such a Bill.
Although some of his colleagues and some senators later opposed him but the Bill was not thrown out. It was referred to a committee to look at. The fear is that PDP legislators who have all to lose if such a law is not in place, could spring a surprise.
The 1999 Constitution with all its imperfections, says that only the President, his deputy, governors and their deputies should enjoy immunity while in office. Why Seriake sprung this surprise on the nation at a time when the National Assembly was considering amendments to the Constitution, would never be fully understood until the Bill either dies or is passed as a valid Act of the National Assembly.
Here lies the push of the civil society and the press that unless the Freedom of Information (FoI) Bill is passed and people have free, quick and legal access to information, the likes of Seriake would continue to take the nation for a ride. Coincidentally, the FoI Bill is suffering in the House of Representatives from the last legislative assembly till date.
To Lagos lawyer, Chief Goddy Uwazurike, "an open society is one where rules and regulations are clearly spelt out in a constitution and other documents. The various rights are known. Infringements are corrected according to law. Equality, fair hearing and others, are the bedrock of the society. In this country, conscious efforts are made to create the opposite of an open society. Laws are enforced according to the whims and caprices of whoever is in power. Those in power observe the fundamental rights enshrined in our constitution more in breach. They see themselves as the Philosopher-King. I am referring to those in power at various levels.
"People in power do not resign when they are exposed. Crime bosses are celebrated as role models. An open society can never condone the impunity with which those in power execute government policies. There is an open contempt for the masses. The wheel of justice is slow and over burdened. There is no social justice, which will make people do the proper things without any prompting".
Uwazurike went down memory lane: "Over the last decade or so, corruption has been identified as the single most important problem bedeviling the country. While almost nothing concrete was done during the military era to stamp out the scourge especially among public sector workers, the ushering in of a democratically elected government in the country in 1999 saw a renewed vigour to tackle the problem. In that regard, the National Assembly passed various legislations aimed at preventing any form of sleaze at both the public and private sector, as well as punishing all those involved in it to serve as deterrent to others.
"It is in fulfillment of the mandate to make Nigeria corrupt-free that the Independent Corrupt Practices (and other related economic offences) Commission (ICPC) and other similar agencies came into being. Most Nigerians are worried that despite the creation of these agencies, corruption has continued to soar".
Professor of Political Science and Vice Chancellor of Bayero University, Kano, Attahiru Jega acknowledged the fact that corruption has brought ridicule on Nigerians and has discouraged foreign direct investment in the country. He said 49 years into nationhood; observers have used many adjectives and appellations to describe our country's failures and wasted potentials.
"A recurring decimal in these negative descriptions and characterizations is the very high incidence of corruption in both public and private sectors.
"In the public sector in particular, there is no denying the fact that a band of short-sighted and greedy elite, both military and civilian, have, within a few decades, created, nurtured and perpetuated the conversion of public treasury and national wealth for exceedingly private uses. These elite eschewed transparency and abhorred rules and regulations, broke laws, violated due process, and crudely stole from the public coffers. They seem accountable to no one as they struggle desperately to feed their insatiable greed".
Jega said transparency and accountability require constant and serious engagement in the Nigerian polity. He said even though no country could be said to be fully transparent and accountable, all countries are striving to achieve the ideals of transparency and accountability.
"The more transparent and accountable a country is in its public and private sectors, the less it's bedeviled by corruption (and) the more likelihood of it being relatively stable, more democratic and better developed. Lack of all these are profound constraints to peace, stability and development in modern nation-states," he said.
The Chief Operating Officer of Mutual Benefit Assurance Plc, Godspower Agofure thinks that an open society devoid of corruption is a mirage as of now.
"This is because our leaders are not showing any resolve to do things right. Until we have a change of heart, a revolution, it could be bloody or bloodless to put the right pegs in the right holes, we are not likely to make any headway".
He stated that the FoI Bill that had been gathering dust at the National Assembly (NASS) would have helped to a large extent in reducing the spate of corruption in the country.
According to him, the reason why there is so much delay in passing that bill is the fact that the corrupt people are afraid of their shadow.
"They feel that once that law is in place, so many things will be exposed to the extent that they will not be able to hide some of the corrupt things that they had done. I hold a strong view that if that bill is passed, it will go a long way in reducing the level of corruption in the country.
"I am aware that recently, some members of the House of Representatives wanted to surreptitiously introduce a bill that would create immunity for themselves. That is a criminal act. One of the reasons why the past governors have been able to get away with their acts of corruption is this immunity clause in our constitution."
He recommended that we should take a cue from the United States (U.S.) where a sitting president can be investigated and brought to book. "If we are already complaining about the immunity clause for the governors, I don't understand why the legislators are asking for that immunity. It should not be allowed because it would further compound the corrupt tendencies of our politicians."
He explained that the president had made pronouncement to the effect that the immunity clause is undesirable and is actually thinking of how to change the status.
"I hope that in the course of the amendment of our constitution, the president would be courageous enough to delete that clause from our constitution".
Agofure feels strongly that there is hope for an open society devoid of corruption.
"It is hope that keeps people living. Some countries that have become corruption-free today, were even worse than the situation Nigeria is currently in. I think that what is lacking in this country is the enforcement of the law. Once we have the will to enforce the law, I believe that we will be able to make progress. You see some people are already talking about a revolution and if we actually have a leader (because today, what we lack is a conscientious leader); if we have a good leader that will show some courage, then there is hope for the country".
He said that the ordinary citizen should be vigilant. "Because so many people are not educated, there is a very strong limitation. They should be vigilant in the sense that they should not accept the Greek gifts, those election packages that are given to the poor people just to mortgage their conscience. If they are properly enlightened I think they will know that they won't have to accept those gifts. They should as a matter of fact and urgency endeavour to uphold the value system that we cherish as Nigerians and Africans."
Mike A. Igini, an attorney at law and Director, Centre for Leadership Value and Policy, says an "open society without corruption is predicated on assumption. And before we can achieve that, we will have responsible people and responsive people who have imbibed the virtues of probity and accountability in public life. And that can only come about if and when the people are allowed to make their choices, to determine who should be their leaders or should govern them. The moment the right is given effect to, those who have been elected, become conscious that the power to hire and fire belongs to the people.
"Therefore, if you must sustain their confidence, you must see the position you are occupying as a trust on behalf of the people".
He explained further: "In the Nigerian situation, I do not see that happening at this point in time. This is because the recruitment process of leadership in Nigerian is dubious and corrupt."
He, however, admitted that the FoI Bill has the potential to ameliorate and mitigate the rampaging corruption in the nation.
According to him, "there is no doubt the FOI law in any society will not bring about openness, probity and accountability in the process of human development. From the pioneering stage in Sweden, in 1776, where we have a set of such a law that is now followed by the many of the developed countries, you find that when you have such a law, it is an attempt to return ownership of public life to the people. Once that is done those who have emerged as elected leaders have the responsibility that is in line with the constitution and whatever jurisdiction, for example, Nigeria, put in place institutions that will make the values and ethics of a society open where actions are transparent. Part of the reason why we are not doing well today and why corruption is so permissive and pervading is the fact that there is no openness in public activities. There is so much secrecy over the governance of public life that the public does not have access to information on the action of government on matter concerning their lives.
"As a matter of fact," he continued, "it is going to 10 years the FOI Bill, right from the time of Obasanjo till date is not being passed, is a clear testimony that we seem to have accepted corruption as an article of faith. Because the more there is openness, the more the people who are involved in governance will have to be careful. Rather than the National Assembly working so hard to ensure that there is Freedom of Information law in Nigeria, we hear current clamour by the legislative arm of the government to have immunity like that of the Chief Executives of the various states and at the Federal level. That tells you the level of degeneration."
The FoI Bill was proposed by a group of non-governmental organisations led by Media Rights Agenda, the Civil Liberties Organisation and the Nigeria Union of Journalists (NUJ). It started with the mobilisation for the expansion of access to information and freedom of expression. They had reasoned that with the advent of democracy in May 1999, Nigerians needed to have information about government process to be able to participate in governance.
To achieve this, a bill called the FoI Bill was proposed and presented to the National Assembly. The Bill was first presented to the House of Representatives in 1999 - one of the first bills to go before the National Assembly after its inauguration. It made impressive progress through the legislative process culminating in a public hearing held in October 2001 at which all speakers expressed strong support for it and canvassed its speedy enactment into law. But for reasons, which are not clear, the Legislature failed to pass it before its dissolution in June of 2003.
The FoI Bill was re-presented to the new National Assembly in July 2003 following the failure of the dissolved Federal Legislature and it went through a second reading in the House of Representatives. By August 2004 their efforts began to bear fruit when the House of Representatives passed the bill. From there it was transferred to the Senate where it remained for over two years. Eventually in November 2006, the Senate also passed the bill by a consensus vote. But despite its passage by the two chambers of the National Assembly, then President Obasanjo withheld his assent, citing security reasons and kicking against the title of the bill. It was however re-submitted after the current National Assembly was inaugurated in 2007 but since then, it has been one controversy or the other especially in the two chambers. In the House of Representatives, five times, the bill has been listed on the Order Paper, but on each occasion, attempts to debate it had proved futile. The Senate, however, made matters worst recently when it proposed to smuggle some controversial clauses into the bill in order to whittle it down and render it meaningless.
At the heart of the argument on whether to debate the bill or not, lies the fight against corruption and the commitment of the government of the day in ridding the country of the hydra-headed problem. Promoters of the bill have frequently argued that if it were passed, the Economic and Financial Crimes Commission (EFCC) and the ICPC would add impetus to their efforts and operations to fight corruption because there would be access to records and a paper trail on which to hang corruption allegation and charges.
Currently, virtually all government information is classified as "top secret". So impenetrable is the veil of secrecy that government departments withhold information from each other under the guise of official secrets legislation. Where all the above are the order of the day, many have argued that only the passage of the FoI Bill will drastically turn things around.
There are also instances where civil servants refuse to give the National Assembly documents after being asked to do so. Most importantly, is the fact that journalists are denied access to information that is critical for accurate reporting, and unravelling the web of corruption in the country. Even students also find themselves barred from reading documents necessary for their research.
Currently, a plethora of laws prevents civil servants from divulging official facts and figures, notably the Official Secrets Act which makes it an offence not only for civil servants to give out government information. Further restrictions are contained in the Evidence Act, the Public Complaints Commission Act, the Statistics Act and the Criminal Code, amongst others. In countries, which Nigeria strives to emulate, all these obnoxious legislations have been consigned to the dustbin of history. It was in order to correct this anomaly that the FoI Bill was proposed.
In reaction to the condemnations from Nigerians, the House leadership had to rise to defend itself promising the Bill was not dead but that it will be reconsidered. Mr. Dimeji Bankole, Speaker of the House in his response to the 11-man delegation of the FoI Coalition that visited him on June 23 said "the bill is not dead and will not die in this House" and that it was "in the interest of the House to pass it" and gave his assurance that the Bill will be passed into law soon.
While cautioning members of the public and civil society groups not to abuse members of the House over non-passage of the Bill, Bankole said relevant committees of the House were already sensitizing members towards the passage of the bill.
An open society recognizes that no one has a monopoly of truth. Citizens can vigorously debate government policies and the future direction of their country. Freedom is maximized, but the weak and the poor are protected. Legal guarantees of freedom of association and freedom of speech are assured. Such societies are not just the exclusive domain of mature democracies. They can be part of any state's democratic development. A sincere commitment to government transparency and civil rights. Corruption is one of the most insidious challenges to an open society.
Dr. Chidi Odinkalu, member of the Council of the Human Rights Institute of the NBA-HRI, says:
"The Bill has endured a most tortured legislative odyssey. It has been through five public hearings and three legislative sessions, and has been passed and vetoed once. Today it is in limbo in both chambers of the National Assembly, hostage to a powerful but numerical minority of legislators who, though beneficiaries of open society, are in fact its foremost enemies in Nigeria. A mere 18 months to the next elections, the prospects for the Bill on this anniversary of the first decade of its first Parliamentary encounter have never looked bleaker. Those who shout state security the most are, paradoxically, most actively engaged in subverting it. Rather than use state security doctrine to protect our common patrimony, they use it to protect private plunder and capture of the Nigerian State.
"Through all this, the case for the FoI Bill in Nigeria has ironically grown stronger. Increasingly, both government and governance have become criminalized. Nigeria's rulers have found new ways to claim electoral legitimacy while dispensing with elections. Consequently, official racketeering, rent seeking and influence peddling have blossomed. Concurrently, the oversight and accountability roles of both government agencies and citizens have been willfully destroyed by unjustifiable secrecy. The on-going crises in Nigeria's financial services sector, including the capital market, demonstrate gross failures of access to information for both the investing public and regulatory and enforcement agencies.
"The point of the FoI Bill is equality of citizenship. Far from undermining it, the Bill advances state security. Advocates for the FoI Bill accept the existence of a state security imperative, part of an intangible infrastructure for the defence of the public interest, entirely compatible with democratic openness. The real obstacle to unlocking the present impasse over the FoI Bill is the refusal of self-appointed sentinels of state security in and outside the legislature to acknowledge this. The lesson of Defence of the Realm is clearly that this refusal is neither justified nor sustainable."
The vexatious Immunity Bill, awaiting second reading in the House of Representatives, is aimed at restricting security agencies from arresting and prosecuting members of the Legislature within the precincts of the National Assembly. It also seeks to make it mandatory for the National Assembly and all State Houses of Assembly to electronically record their voting and other legislative businesses.
There has been a debate among lawmakers and in the public domain on what the Legislature can do to stop the unfettered arrests and detention of lawmakers over cases of fraud or alleged fraud. This is the aftermath of Morris Ibekwe's ordeal, representing Isiala-Mbano/Okigwe/Onuimo Federal Constituency of Imo State in the House of Representatives from 1999-2003, who was arrested on May 28, 2003 by the then newly set up EFCC within the precincts of the National Assembly over allegations that he swindled a German businessman, Mr. Munch Klause huge sums of money. The accused died on March 20, 2009 at the Lagos University Teaching Hospital (LUTH).
Prof. Itse Sagay, a legal luminary on constitutional matters, faults the move by members of the House of Representative over plans to give them immunity. "This move by the house is a symptom of the depraved elite. What they are saying is that they now want to join in the convoy of those who can loot our treasury and get away with it brazenly without any consequence, they believe they can commit crimes without being questioned.
"That's what they are saying.
When you follow the argument that because the governors and the President enjoy immunity, they should also enjoy. But why shouldn't the whole country enjoy, why are they different from the rest of us?
"This part of the brazen immorality of the political class, a shameless group of depraved people who are not entitled, who are not fit to hold any public office.
This is the most disgusting thing I have ever heard at a time that the very immunity of governors and the President is being questioned and in fact, there are very strong suggestions that it should be reduced or removed entirely."
Prof. Akin Oyebode, former Vice-Chancellor of University of Ado-Ekiti (UNAD), presently teaching International Law at the University of Lagos, said: "The efforts of members of the House of Representatives amount to an overkill. The normal parliamentary practice and convention is for legislators to enjoy immunity as to whatever they say within the precincts of the assembly; in fact, that immunity does not cover them as soon as they leave the premises of the assembly. It is just like the immunity which consular agents enjoy which is functional. Diplomats enjoy full immunity for what they do in office and at home. In the case of the consuls they enjoy immunity for actions taken within their offices.
"I think they are trying to fly a flag that should not be acceptable to the rest of us Nigerians."
President of Campaign for Democracy (CD), Joe Okei-Odumakin adds:
"The move by the lawmakers to get constitutional immunity against prosecution is a threat to accountability in the country. It is a continuation of the fact that the lawmakers are making themselves above the law. It is instructive to note that the same period our lawmakers were trying to make themselves above the law was at a time Italian constitutional court stripped its topmost politician of his immunity.
Egypt's Parliament last year also stripped two of its lawmakers of their immunity as parliament members, clearing the way for their arrests, because under Egyptian law, lawmakers often enjoy immunity from prosecution unless the Parliament gives the clearance for a legal investigate.
"What do you think will happen when they pass the bill and grant themselves immunity?"
