(Vanguard of Sunday, January 27, 2008)
So we want to merge the Economic and Financial Crimes Commission (EFCC), the Independent Corrupt Practices and Other Related Offences Commission (ICPC), and the Code of Conduct Bureau (CCB). I do not want to be part of reading meanings into why the mergers are being advocated. I only want to draw attention to a few things we can do through law-making and some others we cannot do even if the law permits doing them on the face.
Yes you can tackle EFCC and ICPC as you like. Starve them to death by denying them funds to operate with, or just ask the Police to recall their personnel seconded there. Or send them to the office of the Attorney-General of the Federation so that our expansion plans to cater for the sophistication necessary in fighting criminals that have gone digital will be sent back to the analogue pace of yester-years when the fastest mode of documentation was with the typewriter.
After all the Criminal Code Act is so all-embracing that there is hardly any crime it has not taken care of. Chapter 12 of the Act is devoted to corruption in all its ramifications; and corruption associated with work in the public service is not left out. In prosecuting cases to do with these human disorders, all roads led to the Ministry of Justice. The involvement of the police was at first not undertaken without advice from the office of the Director of Public Prosecutions.
Worldwide, sophisticated ways of committing crimes are being met with sophisticated ways of fighting criminals. So the ICPC and the EFCC were special crime tackling bodies that President Obasanjo created to fight the debilitating ailment that was destroying our body politic. While ICPC would focus its binoculars on public officers, EFCC dealt with fraud and money laundering and other financial crimes in whatever way they manifested themselves.
Those who want the agencies merged or scrapped or immobilized should go back in time to ask what advised their creation. Please let us forget the harm Obasanjo who gave them birth did with the agencies, especially EFCC when he had political scores to settle. The question is what was there that we wanted ICPC to do? There is no better way to illuminate it than to look at what the
President said on June 13, 2000 when he was signing the ICPC bill into law. He made it clear that what the Act set out to address was not just the simple act of giving and receiving of bribes. It included such acts as the use of your office for pecuniary advantage; gratification; influence peddling; insincerity in advice with the aim of gaining advantage; less than a full day’s work for a full day’s pay; tardiness and slovenliness.
He mentioned seven broad areas as falling under the category of gratification. The first area, and this will cover the field, is that gratification means “money, donation, gift, fee, reward, value, security, property or interest in property being property of any description whether movable or immovable, or any other similar advantage, given or promised to any person with intent to influence such a person in the performance or non performance of his duties.”
Section 8 of the Act punishes those who fall foul of the offence of accepting gratification. The offence is identified as official corruption and is punishable with imprisonment for seven years. Those who offer gratification are equally guilty and are liable to imprisonment for seven years. On that June 13, 2000 when he signed the bill into law, he spoke of what corruption had done to the polity.
It had been responsible for the instability of successive governments since the First Republic. “Every coup since then has been in the name of stamping out the disease called corruption. But the cure often turned out to be worse than the disease. And Nigeria has been the worse for it”, the President said.
The ICPC Act provided for massive investigative arrangements which the facts on the ground do not seem to reflect. Maybe because of the natural soberness of a judge, those who have headed the body have never been the actors that EFCC’s Ribadu had become, nor was the body available to do the dirty things that EFCC was associated with.
In the way the body dealt with governors who were not in the good books of the maximum ruler, there was no doubt that EFCC used legal routes to achieve political ends. And nobody cared that this was short-circuiting the Constitution. I did warn then (Short-cut to Anarchy, Sunday Vanguard Feb 12, 2006) that it would look attractive in the short-run, but that what was happening would only lead us to the evil forest. Didn’t it?
Imagine the familiar scenario — law-makers hounded into endorsing allegations against the chief executive; key officers of the governor arrested and detained; the state accounts frozen; EFCC agents move into the state capital; the impeachment document emerges and the chief judge swears in a panel against which protests are invalid; reports emerge in a matter of hours and what should last three months is done in one week! Memories of those short-cuts are still bitter pills in the mouths of those who have been consistently insisting on due process.
One thing EFCC and ICPC have in common is that they handle crimes. So, you may say you want them merged. But the Code of Conduct Bureau? No, no, no. The Code of Conduct is a brief given to those who accept to be in public office and who take an oath to abide by its provisions before they assume office.
Sections 172 and 209 of the Constitution are loud and clear as to what is expected of a public officer. “A person in the public service of the Federation shall observe and conform to the Code of Conduct,” says section 172. Section 209 makes the same demand on those in the public service of a state. There are administrative arrangements to ensure that those in public office abide by the Code.
Section 12 of the Fifth Schedule identifies the body (the Code of Conduct Bureau) to which complaints against public officers should be made if they have not complied with the provisions of the Code or if they have committed breaches of the Code. Section 15 of the Schedule established the Code of Conduct Tribunal which is the Disciplinary Body that punishes infringement of the Code of Conduct.
The Fifth Schedule is backed by the Code of Conduct Bureau and Tribunal Act Capt C15 Laws of the Federation of Nigeria 2004 which came into effect on January 1, 1991. The Act is a faithful enactment of the provisions of the Fifth Schedule with minor adjustments here and there.
This arrangement is not part of the structure of the Judiciary which itself is subject to the provisions of the Code of Conduct and the instruments for enforcing compliance with the provisions of the Code. Even the chairmen of the Bureau and the Tribunal hold office until they are 70, and members of the tribunal cannot be removed from office unless the Senate of the National Assembly says so with two-thirds majority votes of its members.
It is obvious therefore that the Bureau and the Tribunal are inseparable. The Bureau can be seen as the investigative arm of the Tribunal, for its findings of breaches of the Code go to the Tribunal. If the Bureau is excised from the Fifth Schedule because we want to accept that mergers are necessary, then we have to embark on a constitutional amendment which may lead to the ridiculous result of taking to the office of the Attorney-General of the Federation an investigative arm that the minister himself can be answerable to!
Whatever is intended for the ICPC and the EFCC can be effected through the normal due process of making law. All that is needed is to package the material to the National Assembly which has power to deal a death blow to the greatest threats to those who abuse forum. But the Code of Conduct arrangements?
All the National Assembly has power to do is to act within the brief provided in the Fifth Schedule, which it has done by enacting the Code of Conduct Bureau and Tribunal Act Cap C15 Laws of the Federation of Nigeria 2004. Those who want to get at Ribadu and the EFCC by asking for EFCC’s merger with ICPC should yell and shout without dragging the Fifth Schedule that provides for disciplining public officers into this unserious pastime.
(Published in Vol. 3 of Democracy Watch, A Monitor’s Diary by Tony Momoh, pages 1 – 4; Lagos, 2011).