(Vanguard of Sunday February 18, 2007)
The most dangerous precedent the president will be leaving behind is what can happen to those who drive the economy, the private sector. I have no business outside my law office, so I am no victim of any discriminatory treatment of anyone.
Mine is to report perceptions, what people see my president doing, what they say he is leaving behind for others to, so to say, copy. At the dinner organized for PDP Presidential candidate Umar Yar’ Adua and his running mate Jonathan Goodluck, a group that has emerged to be known as Corporate Nigeria was heavily in evidence.
In 2003, they contributed millions of naira to PDP campaign funds and were so embarrassed at the legal consequences that they pleaded that the funds were meant for the president and his running mate as individuals. But that itself was against our laws. It is this group that is associated with promoting the third term project of the president which failed.
And, as if they did not learn from the advice freely proffered in 2003, Corporate Nigeria openly endorsed the PDP ticket at a dinner some of their own organized for the PDP candidates when the party launched its campaign in Lagos. Those who spoke, carefully selected from the promoters and owners of Transcorp, want continuity for the president’s reforms. There is sense in watering the mango tree you believe will bear fruit for you to pluck and eat, even to the exclusion of others, but in working for what they believe in, are the kingpins of Corporate Nigeria following the rules settled for doing business in this country?
Under the Companies and Allied Matters Act (CAMA), no incorporated company is permitted to contribute funds to any political party or any political association. The section is unequivocal in banning contributions to political parties.
It says under section 38(2): “A company shall not have or exercise power either directly or indirectly to make a donation or gift of any of its property or funds to a political party or association, or for any purpose…” The punishment is that the officer of the company that made that donation would refund an equivalent amount to the company.
It does not end there. The company or anyone representing it that made the donation would be guilty of an offence under the Act and would be liable to pay a fine equal to the amount or value of the donation. It was this embarrassing situation that construction and other companies found themselves in when they handed out millions of naira at the fund-raising gathering organized by the PDP that Dr. Ndi Okereke-Onyuike, director-general of the Nigerian Stock Exchange, wanted to salvage.
The Guardian of February 14, 2003 quoted her as saying that what was given out by the companies was not meant for the PDP but were donations to Obasanjo and Atiku in their individual capacities. The law does not frown at this, nor does the Constitution prohibit it, she claimed. Hear her, “What people should understand is that the law says companies should not patronize political parties, but did not say we should not patronize an individual”.
I then wrote, on March 2, 2003 that her diversion of focus from the party to the two kingpins did not help matters. The explanation I gave is as valid then as it is today, but it is going to fall on deaf ears because what is being done now is a bold step in breaking the laws of the land and not caring about the consequences because those involved know the one who can give effective cover against breaches of whatever description.
But they forget that one day, oh yes, one day, those who give cover now may be in frantic need of cover to defend the covers they gave outside due process. The truth is that neither the president nor his deputy nor any other public officer is covered when people hand out tonnes of money in form of gifts.
Before the president and other public officers assumed office, they swore that they would abide by the Code of Conduct contained in the Fifth Schedule to the Constitution of the Federal Republic of Nigeria. The Fifth Schedule, in Part 1 of its provisions, sets a code of conduct for public officers.
Public officers are identified in Part 2 of the code, and the President and the Vice President top the list. A public officer, says the code, should not put himself in a position where his personal interest conflicts with his duties and responsibilities. Section 6 deals with gifts or benefits in kind, and it is this section that our dear Ndi’s attention was drawn then.
But that they have done the same thing for the PDP and the flag-bearer is no pointer to any ignorance of the law but a deliberate infringement of it. Subsection 1 of the section prohibits the President and the Vice President and other public officers from asking for, or accepting property or benefits of any kind for themselves or any other person on account of a anything done or omitted to be done by them in the discharge of their duties.
Subsection 2 of the section is even more unambiguous. It says, “…the receipt by a public officer of any gifts or benefits from commercial firms, business enterprises or persons who have contracts with the government shall be presumed to have been received in contravention…” of the provision that a public officer shall not ask for or accept any benefit of any kind for doing something or failing to do something in the discharge of his duties.
There are occasions when gifts are acceptable. For the avoidance of doubt, it is made clear that gifts or donations received on public or ceremonial occasions would not constitute a breach of the code but would be deemed to be gifts or donations to the institution represented by the public officer. If the occasion was a public or ceremonial one and the President and the Vice President were there as representatives of the PDP, and not the Presidency, then the gifts would be the property of the Peoples Democratic Party.
And the PDP being a political party, it will be caught by the prohibition imposed by section 38(2) of the CAMA. Which means that all the money given by corporate bodies must be refunded to the companies by those who gave them, and the same sum paid to the government of the federation. The EFCC must be reading this so that it can set the ball rolling to know how much of company money has been invested in promoting the party which Corporate Nigeria believes is the only one that must grow Nigeria.
But from what seems to have been happening, EFCC is on trial. Nuhu Ribadu has been trying to defend his outfit’s credibility. I myself forgave EFCC when I saw two publications in the papers showing that those the commission accused of corrupt practices were carefully sifted to give cover to the children of Nigeria’s budding monarch. And I heaved a sigh of relief when the commission’s chairman said Olusegun Mimiko of the Labour Party was not being investigated and that the president’s threat to send the hounds after him was no more than a personal opinion.
There is hope that those who think that they are above the law will discover to their surprise that they are not. Under the Independent Corrupt Practices and Other Related Offences Commission (ICPC) Act, seven broad areas are mentioned 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.
Before we round off this series on setting dangerous precedents, there are a few points to clear. I was asking a friend in the organized private sector why Corporate Nigeria should come out boldly to endorse one man in a multi-party democracy, and he told me there was no such endorsement. He reeled off the names of the bodies that over the years had been known and recognized and referred to as the organized private sector and swore that they were not part of Corporate Nigeria.
He challenged me to investigate Corporate Nigeria and discover the shock of my life, that it is constituted by those who gained directly from the administration. If I had a say, I would advise that the organized private sector should sort itself out. We are practising democracy and we should not have the impression that our drivers of the economy would endorse one approach to growing the economy.
In 2003, I thought that what Corporate Nigeria did was done in ignorance. Now, I know that what is being done is a bold step in breaking the laws of the land and not caring about the consequences because those involved know the one who can give effective cover against breaches of whatever description.
(Published in Vol. 2 of Democracy Watch, A Monitor’s Diary by Tony Momoh, pages 279- 283; Lagos, 2008).