Sat, Jun 25, 2016
Frankly speaking, the reason this anti-corruption war may fail is because Buhari's political home is also full of corrupt and unscrupulous members.
Right from the election season last year, it is known that the ultimate mission of President Buhari is to tackle the Everest height of corruption in the country. And since his emergence, several measures have been taken to flush out corruption out of the face of the nation. It is a matter of fact that this war needs be fought because of the ill effects of corruption on Nigeria. All the mess the country is in today is bore out of the ugly womb of corruption.
However, with the way and manner the 'politics' of anti-corruption crusade are played, Buhari lovers have been left heart broken. Notwithstanding the good intention of the president to fight the monster called corruption, there are many acts and methods used in fighting this corruption that are equally dirty, corrupt and uncalled for. And this particular point is where it seems Buhari and his 'soldiers' are getting it very wrong.
There are bodies that have been established for the sole purpose of carrying out the fight against corruption. Out of all these bodies, the Economic Financial Crime Commission (EFCC) is the one principally used to make the anti-corruption crusade a reality. Sadly, the EFCC, which seems to echo the voice of the president, have also been involved in countless corrupt acts, which cause more harm than good to the health of our dear nation.
With what holds in the country today, it is crystal clear that Buhari isn't fighting really corruption rather he uses corruption as disguise to fight the opposition. This is understandably so because right from time which this 'holy war' commenced, the attention of the EFCC have been on the opposition parties, particularly PDP. This in essence means that Buhari has been selective in this anti-corruption struggle and has been playing politics of revenge. And being selective itself is the best definition of corruption. Perhaps, Jonathan have been vindicated; 'stealing is not corruption', it is far beyond that.
Apart from "selectiveness" highlighted above, the government has also been guilty of the usage of EFCC in gagging any form of opposition and criticism. Femi Fani-Kayode, Olisa Metuh and others are testimony to this fact.
Frankly speaking, the reason this anti-corruption war may fail is because Buhari's political home is also full of corrupt and unscrupulous members. In fact, many of his election sponsors are suspected looters that left the PDP and metamorphosed to angels under the guise of APC's change. Now, waging war solely against the unrepentant member of the PDP showcases the hypocritical nature of our president. This is definitely not how he should address corruption if he is to really eradicate it.
More importantly, there has been gross violation of the provision of law in the course of fighting this corruption. It seems the rule of law, which is the political principle that stipulates the supremacy of the constitution, have been for long jettisoned and discarded. In fact, fundamental rights of suspected looters have been encroached upon without any form of apology. What saddens me mostly is the fact that many Nigerians seem to care less about this germane issue - disregard for our laws - since they have been blindfolded by the anti-corruption war. Let me put it straight, it is the greatest height of political cum constitutional rascality and insubordination to disrespect the law under the guise of fighting corruption. It is wrong, unconstitutional and evil. The fact therefore is: corruption can be tackled without necessarily violating the law.
Just last week, the EFCC extended its icy unlawful hands on a sitting governor. Ekiti State governor, Mr Ayodele Fayose, have been unlawfully "investigated" and treated under the guise of fighting corruption. His personal account has been frozen for alleged corrupt funds in his account. These acts of the EFCC are highly political and evil by nature.
It is known in all nooks and crannies that Fayose is one of the leading voices of opposition in Nigeria. He has been able to perform this "function" mainly because of the immunity clause on him. If not, the EFCC might have gagged him by alleging him of an offense or the other. This has been the weapon used by the presidency to gag all forms of criticisms in the country. And it is very unfortunate and saddening that Buhari is unaware or pretends to be unaware of the importance of criticism/opposition in democratic governance. Wait, who knows whether his "no-no" to opposition/criticism is an indication of his dictatorial tendency?
Looking at the action of the EFCC towards Fayose from the legal angle, it is highly unconstitutional. The provision of the law needs be absolutely respected by any government body. Any act of government or its agencies inconsistent with the provision of the constitution is void. And this is the provision of Section 1(3) of the 1999 Constitution. Additionally, in the popular cases of GARBA VS UNIVERSITY OF MAIDUGURI and A.G BENDEL STATE VS A.G OF THE FEDERATION & OTHERS, it has been decided that when government or its agency is involved in what it has no power to do or that which is not according to the law, and such actions will be declared void.
Thus, in this case, the EFCC has acted ultra vires by infringing on the immunity clause bestowed on governor Fayose by the constitution. Section 308 of the 1999 constitution grants immunity on some government officials, which Fayose happens to be part of. The purpose of this provision is no other than to prevent the governor from being inhibited in the performance of his executive functions by fear of civil or criminal litigation arising from such performance during his tenure of office. This intention however have been violated.
It is apparent that "freezing" of a governor’s account by the EFCC is an investigative activity, and investigation that will hurt the “welfare” of the sitting governor is sheer bitterness and disregard for our law.
It needs be pointed out here that the writer of this piece is not opposing the fact that EFCC should investigate. But, the investigation should be carried out on a low-key. Freezing of the account for any reason whatsoever, therefore, is too harsh a decision and equally against the spirit of law. In fact, the Supreme Court has observed in the case of TINUBU VS. IMB SECURITIES LTD, the essence of immunity is "... to insulate them (those whom the section apply) from harassment in their personal matters." This intention has also been defeated by the EFCC.
Some have argued that the act that creates the EFCC also empowers them under Section 34(1) to investigate any person whose account is under the committal of an offence WITHOUT exceptions to person. This provision is however clashing with the provision of the constitution, which is the grundnorm.
Thus, it is a settled principle, by virtue of section 1(3) of the constitution that where there is a clash between any other law, like that of the EFCC, with the provision of the constitution, like section 308, the provision of the constitution shall prevail and the provision of the other law shall be void to the extent of its inconsistency.
With respect to the principles of law highlighted above, it will be apt to say that the action of the EFCC is unjust and unconstitutional. Without any care about the political reasons behind the "freezing", the bitter truth remains that EFCC have acted ultra-vires and need to act constitutionally if it's ready to fight corruption.
Let's ponder a minute, why should the EFCC be disregarding the law? This question needs an answer. For in the case of NICHOLAS ASHINZE VS. EFCC, the court has ruled, "EFCC is a creation of the law. The court will not allow it to act as if it is above the law. The EFCC Act is not superior to the constitution of the Federal Republic of Nigeria." (Per Justice Yusuf Halilu).
On the final analysis, it needs to be stated that everyone is a creation of law and nobody, even the president, is above the law. So, President Buhari, Governor Fayose, EFCC and all of us should be law abiding for us to have a better Nigeria and the account frozen should be "unfrozen" as a matter of constitutional urgency.
God bless Nigeria.
Festus Ogun is a Nigerian blogger and socio-political commentator.