Renowned Professor of Law and Senior Advocate of Nigeria, Itse Sagay, is perhaps saddled with the most delicate assignment of his career. As Chairman of the Presidential Advisory Committee on Anti-Corruption, he is expected to help in setting the tone for the anti-corruption campaign of the Buhari administration. In this encounter with the Zero Tolerance Magazine in his modest office in Surulere, Lagos, he bares his mind on the challenges of fighting corruption in Nigeria and offers a window on what to expect from his committee. Excerpts
A few years ago we had the privilege of interviewing you for our 10th anniversary celebration and on that occasion you made a very profound submission in terms of solution to corruption, including suggesting death penalty for corruption. Do you still stand by this?
I have revised my position a little bit on reflection. Much as I still feel strongly about it especially the pension one, I just feel life cannot be brought back once it is taken. There is something absolute about it except of course when we are talking about resurrection day, that sort of spiritual belief. There could be some punishment that can be effective without having that finality, perhaps, imprisonment for 40 to 50 years which amount to a lifetime. That will probably be more appropriate.
What has changed in the past two years that made you to review your earlier position?
It is just getting older, seeing so many people you know and love passing away, knowing the devastating consequences on one’s life. It makes me very wary about death as a penalty; the finality is just too awesome.
But, there are some victims of corrupt practices that have died as a consequence. So how do we reconcile their deaths and the grief of their families with your softened position now?
You are absolutely right, the consequences of looting the common wealth of the country could be such level of deprivation in our social and economic services that people’s lives could be affected like women who may not get ante-natal care, hospitals that are not well staffed and not well-funded, roads that are not well constructed, people could have accidents and die. I think the main difference is, one is direct execution, and this other one though equally awful is an indirect type. I am wary that an accused person may not have thought of the final consequences it would have on people.
In fact, that is one aspect that my committee wants to really educate the public upon, that is the consequences of corruption because at times we just look at it as money stolen, but, the consequences on those who are the victims, that is, the masses, could be devastating and we need to point this out.
There are countries where the death penalty is used in curbing corruption, and the effect is overwhelming, why can’t it be used in Nigeria?
Yes, countries like China and may be Malaysia. The other reason why I am a bit hesitant now is that, when you give such penalty judges may buckle and will begin to find a way of not pronouncing a person guilty so that they will not be condemned to death.
What should be the adequate punishment for corruption?
If I were to amend the law to introduce new sentences, I will say you have to consider the position of the person. A person who occupies a high position and was entrusted by the state to look after the interest of Nigerians and there were a lot of resources at his disposal and he misappropriated it, such should get a very-very high sentence compared to a hungry man who is earning minimum wage, he has five children, he is looking for school fees, feeding, house rent and he goes and does a little pilfering in his office, I will look at the position of that person differently.
How long is high sentence?
Anything from 15 years onward is high.
Your committee has visited a number of anti corruption agencies, what is your impression so far?
I cannot say much, because normally we have to make recommendations and write reports so I cannot disclose it, but what we saw was that generally, agencies that are given tremendous responsibilities probably need a lot of help to be able to carry out those responsibilities more successfully. I am thinking in areas of increased manpower, more training directed at specific objectives like investigation and prosecution and finance so as to enable them have more capacity. Those are some of the obvious things that we have noticed.
In some others, we noticed that the level of manpower is too low for the job they are doing. They need not only more personnel but skilled and experienced ones.
What is your position on special courts for corruption offences?
I support it. I think it is good idea and I hope that at a certain stage the government will send a bill before the National Assembly to have one established.
In the special court, will plea bargain be a consideration?
Oh definitely. There has to be plea bargain or otherwise your agency will just go on prosecuting endlessly. If you have a case in which the person who is being charged quickly says ‘look, I am guilty, what sort of mitigation can I enjoy? I am going to return the money’ you need to look at it. That way in six months the matter is over and you can go on to the next case. But where you don’t have plea bargaining you have to fight, bring all the evidence and prove the case beyond reasonable doubt before the court. This will cost time, money, and energy. What you could achieve with plea bargaining in 3 to 6 months, you may spend 3 to 5 years with great expense to the state.
Plea bargain for me is inevitable provided there are very strict guidelines so that you don’t have a situation where somebody pays N3million and take N20 billion away without a term of imprisonment.
Some persons have said our laws are too weak to catch the rich and too strong to let the poor go. Why is it such an uphill task getting the rich convicted?
There is a lot of validity in that opinion because, as we always say, there is a tendency for the man who steals a goat to be easily arrested and convicted and sent to prison for 3 years and the man who virtually steals billions gets his bail and never sees the walls of the prison. That’s a major difficulty in the anti-corruption struggle. But the 2015 Administration of Criminal Justice Act, has provided solution to a lot of the problems. That law has taken care of a lot of loopholes that these senior advocates who are specialists in killing corruption cases, normally use.
Now if they bring a preliminary objection that the court has no jurisdiction, the new law says you can do that but the court most now take both the preliminary objection and the corruption charge together.
It is no longer allowed to suspend the corruption case and pursue the question of jurisdiction and after two years gives a ruling and the accused goes to the Court of Appeal and after another three years goes to the Supreme Court meanwhile the corruption case is still hanging there. By the time the case comes back, witnesses have disappeared, the judge has been transferred and the prosecutor is retired creating what I will call prosecution fatigue, so that is gone under the new law.
Also, the new law says there must be day-to-day hearing. You cannot start on Monday and say “we adjourn till next week”, no. And where adjournment is inevitable because of circumstances beyond the control of the court, it must not be more than 14 days, and if further adjournment comes, there is a maximum of five days, after which, nothing again will allow the judge to permit adjournment.
Also, if a judge is promoted as we saw in a few cases, he most conclude the case, he can’t abandon it and say I have being promoted.
Finally, appeals do not constitute a stay of prosecution, you can appeal and go on with your appeal but the case most continue.
All these put together have enhanced the capacity of your organization (EFCC) and that of the ICPC, CCB to do their work and for the rest of us who are supporting you to monitor the cases to make sure there are no shortcomings in other areas, particularly among judges who sometimes want to sabotage what has taken a lot of trouble to put together. In terms of this new law, they will be monitored.
How will that be possible?
I can’t give you the details, but definitely there is going to be monitoring. Cases can’t just go to anybody, because there are some, sorry to say, judicial officers that we know who have been terribly compromised, that any case going to them is a lost case.
Is it not possible to have a time frame for the determination of corruption cases just the way we have for the election matters?
Yes, you’re right. If a special court is set up, I am sure that will be a component. I have no doubt about that.
Is your Committee working on it?
We are thinking of it. And let me put it this way. It is something we are very interested in. Once we get the go ahead, we will begin to put the architecture down for the bill to be passed because we believe that it will make a lot of difference.
You seem confident about your assignment?
I’ve been in the political struggle in this country since 1962. Nobody has ever identified me in government for anything, because it’s obvious that my orientation and that of those who have been in power will clash. So for the first time in my life, I never thought that I will see it, we have a government in the centre with which I am aligned ideologically, culturally and politically. It’s a surprising thing to me because I never thought it will happen. So I think things are going to get better.
Are you not worried that corruption might fight back at you at some stage?
Corruption will always fight back at anybody and corruption is very powerful. Corruption owns all the wealth in the country and they can buy people, buy lawyers, and buy all sorts of powerful agents to strike back. There is no question about it.
Part of the problem in fighting corruption is that there is no punishment for judges who misbehave.
There is no doubt that there is some form of esprit de corps among judges. And there is a tendency for a resistance to prosecute judges. But the point being made about judges being retired after misbehaving has attracted public outcry all over the country. In many of the sessions we have had, that issue has been raised. And I think it is getting to a stage that nobody is going to accept this take-your-loot-and-go attitude anymore. It is getting to a stage where a corrupt judge will be prosecuted, will be shamed, will be imprisoned as a deterrent to others.
On this issue of perpetual injunctions, it is another very outrageous thing and I can tell you personally that I am going to push it in my committee that we should press it on the National Judicial Council that any judge who issues a perpetual injunction against either interrogation, investigation, arrest or prosecution of any suspect for corruption should be regarded as being guilty of an act of gross misconduct. It should in fact be a sufficient basis for removal from office.
I am going to press for it in the committee and we are going to end up pressing it before the Chief judge of Nigeria and the NJC that if any judge ever issues perpetual injunctions to promote the interest of corrupt people, to say you cannot interrogate them, you cannot arrest them, you cannot investigate them, you cannot prosecute them, that is an act of gross misconduct which should see that judge out of his seat immediately.
Is your committee considering lobbying the senate to pass the Non-conviction Based Asset Forfeiture bill?
Yes there is a bill to that effect already. I agree, we think it is very critical and we are going to pursue it. It is part of the very, very urgent matters that we are looking at.
The present anti-corruption agencies, looking at their structure and their configuration, are they strong enough individually, to deal with corruption?
That’s what I told you right at the beginning, that they need strengthening; they need more manpower, highly skilled and trained. They need more equipment, because the task as I said at the beginning is enormous. if you are not a man of courage you will just give up because it is frightening seeing the level to which corruption has permeated all sectors. In fact it is such a struggle that there is even need for priority by concentrating on some aspects and progressively working towards wider group. One needs to be selective so that we can make an impact, something that will send a message throughout the whole country. Those are the things we should be going for.
The strengthening, what form is it going to take? Are we to see mergers of existing agencies or the establishment of new ones?
This talk of merger has been going on for some time. We have heard it so many times and my personal view is that in a situation like we have now, you don’t rush headlong into decisions. You study the situation carefully; look at the pros and cons. You also try and find out from other jurisdictions what they have and how successful they have been before you now begin to think of applying it. It sounds attractive in the sense that it would result in a concentration of all resources in one big agency which will now then focus on the struggle. But on the other hand, we have a situation where one specializes in one type of corruption, the other specializes in another type and they have different strength and therefore are better at specific types of activities. You may also have a situation where competition can help drive energy to achieve so those are all things we have to look at. The issues have been raised but we are not going to take a decision without thorough consideration so that at the end of the day the country does not lose through a wrong decision.
The last government tried to distinguish between corruption and stealing. Former President Goodluck Jonathan said what we have ‘was not corruption but people stealing public fund’, what do you make of that statement?
Well I think it was very naive. If it was a statement innocently made then it’s extremely naive. I also want to say that both are the same. If you steal you are taking what does not belong to you so obviously you are corrupt because that is the definition of stealing, taking something belonging to another person without the consent of that person. So there is no difference. That statement was very, very wrong and extremely shocking to come from such a high source. It is not the sort of thing that you expect from that level of authority. I was shocked that it was ever made.
Source: Zero Tolerance: Vol. 8 No. 1, January – March, 2016
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