By UMAR SA’AD HASSAN –
The anti-corruption war has gathered momentum and the willpower of the government is most commendable. We have transited from probes that lead to nowhere exactly; in other words, from ones that die the ‘Nigerian death’ to ones that end with immediate prosecution of those found wanting. However, we must proceed from this point with extreme caution as the determination to see those who have looted our money punished could turn counter-productive if the requisite expertise is not applied in handling corruption cases.
If at the right time we sit down to evaluate our performance in this war, we wouldn’t only be counting convictions but also how much we let slip through our grasp. We must avoid a treadmill war against corruption — running forward but on the same spot.
The EFCC arraigned Chief Raymond Dokpesi on Tuesday, December 8, 2015, on a 6-count charge bordering on receipt of N2.1billion for media/publicity of the presidential campaign of the PDP, with Attahiru Bafarawa reportedly set to follow.
While I am not disputing the fact that government funds may have been given to people like Dokpesi and Bafarawa, I am worried about the chances of securing convictions against them. One need not be a legal luminary to know you can hardly prove wrongdoing against a man who received money for unspecified purposes as there is no law requiring him to turn down monetary gifts or ascertain the accounts they emanated from before receiving.
Attahiru Bafarawa’s son is alleged to have received money on his behalf for no stated reason. I’ll try to depict my fears in the simplest of ways: His son, Sagir, was sitting on his sofa at home watching a soccer game when he received an alert from his bank that N1.5billion had been transferred to him. If the depositor’s name doesn’t read Office of the National Security Adviser (ONSA), then the EFCC has a lame case against him. It would be most difficult to prove any wrongdoing on his part.
It is important to note, on the other hand, that Dokpesi allegedly entered into a contract with President Jonathan or the PDP and not the Federal Republic of Nigeria. Similarly, if the details of the transfer don’t expressly state that payment into his First Bank Plc account was from the ONSA, then we have a problem. ‘Knowledge’ or mens rea — the mental element — is a key ingredient in the commission of a crime, and, by this, I don’t mean knowledge that what they were doing was wrong, as ignorance of the law is no defence.
If it can’t be proved that the accused persons/suspects knew that the money they received were public funds, then we would be shooting at shadows.
Without completely ruling such out, I find it a little too hard to believe (without full knowledge of the evidence against him) that a seasoned ex-serviceman like Col. Sambo Dasuki (rtd) would transfer money from his office account to private individuals in commercial banks, even if not for anything but for the fact that he fully understands the drastic consequences of a leak in any of the banks. A scandal of that nature involving the NSA would be most embarrassing to the government he represented.
As much as I would want to see every thief who has stolen from us pay for doing so, there are cases where it would be in our best interests to exploit other means outside the courtroom. Our most skilled interrogators must be deployed in cases where the EFCC wouldn’t win in court in place of high-price senior advocates of Nigeria. The right bluffs and ‘carrot-stick’ interrogation techniques could have suspects agreeing to return substantial parts, if not all of their loot.
Though the EFCC clearly lacks the power to plea-bargain by virtue of Section 13 (2) of the EFCC Act, Section 14 (2), in the typically hilarious fashion in which some of our laws are drafted, allows them to compound (agree for a consideration not to prosecute) any offence punishable under the Act by accepting any sum of money as they deem fit exceeding the maximum amount to which that person would have been liable if he had been convicted of that offence.
Inasmuch as I agree that a lot of corrupt politicians and government officials have looted us dry and would want to see formidable cases built against them, there is also a need to tread wisely and exploit other means where nothing we have on them will stick.
It would be most painful to watch our thieving leaders set free by the courts to go and enjoy their loot when we have a chance of recovering most of it. A treadmill war is as good as lost.
Hassan is a lawyer based in Kano.
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