Professor Itse Sagay, Senior Advocate of Nigeria (SAN) and Chairman, Presidential Advisory Committee Against Corruption (PACAC), is a radical scholar and an exceptional anti-corruption crusader. The learned professor continues to demonstrate a life-long commitment to a transparent and corruption-free Nigeria. In this interview with TheEconomy’s Dike Onwuamaeze, Sagay provides an insight into the activities of PACAC and gives an appraisal of the ongoing war against corruption being spearheaded by the Muhammadu Buhari administration. Excerpts:
Basically, Nigeria’s plea bargaining provisions are very tough on the defendant. It gives him very little room to manoeuvre. It is only when you have given up all that we know you have stolen that we can discuss. And it may still involve a smaller term of imprisonment. There are occasions too when there are several charges and the prosecution finds it difficult to establish conviction; to prove beyond reasonable doubt with regard to the major charge. The process of plea bargain may involve dropping that charge and the defendant accepting a smaller charge so that you do not prosecute it to the end and the case is dismissed and the lesser charge also does not bring any conviction. So, if he pleads not guilty to the lesser charge, at times, the more serious charge which is difficult to prove and could be lost is dropped. Above all, after the plea bargaining arrangement has been concluded and written out, it is taken to the judge. The judge is the last authority on it. If the judge does not like it, he will reject it. And that is the end of the matter. So, there is no question of prosecution and the defendant conspiring to counteract. The judge has the right to reject it. And when a judge rejects the terms of the plea bargaining, he transfers the case to another judge so that the defendant will not say that the judge is biased against him.
We have also produced a number of bills such as the Special Criminal Court Bill; Proceeds of Crime Bill, which are before the National Assembly. Luckily, the Chief Justice of Nigeria has given a directive that corruption court should be created in every court system in Nigeria. This directive has solved the issue of special corruption court though it is not based on legislation. In Nigeria, every good idea in principle always ends up badly when it is implemented. Two things we were worried about: one, the involvement of Senior Advocates in monitoring these corruption courts because many of them have corruption cases they are defending. There could be conflict of interests.
Another area of magnificent achievement is the recovery of stolen assets. That is a programme we have inculcated into the anti-corruption agencies. That you do not need to prosecute somebody successfully before you will take assets that he has stolen. We have worked out an area of activity known as non-conviction based forfeiture. It does not require convicting anybody. If you see a property that is suspicious, in the sense that the person who owns it does not have the means of actually buying it, the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices and Other Related Offences Commission (ICPC) have the right to seize such property and come before the court to seek temporary forfeiture. If the court grants the temporary forfeiture, the person concerned with the property is now invited within 14 days to come and explain to the court through affidavit and legal representation how he legitimately acquired that property. Most times, they do not turn up. Some even denied ownership of such properties. So, billions of Naira have been acquired under that process. You do not need conviction of anyone since the action you are bringing is not against any person but the property. We call it in rein property. It is impersonal. We do not need to prove anything beyond reasonable doubt because it is not a criminal matter but civil matter. The onus is on the individual challenging our action to prove ownership. This is in accordance with the constitution which states that where a property that is suspected to have been illegitimately acquired is seized, it is the duty of the presumed owner to prove ownership. It has been a very hectic period for us.
You have just mentioned that your committee writes advisories to the government. How would you assess President Buhari’s attitude to advice?
I will say reasonably well, especially on those critical ones that affect the prosecution of corrupt Nigerians and looters.
It is almost two years since the Presidential Advisory Committee Against Corruption (PACAC) was set up. What has been your experience as the chairman of PACAC?
My experience is that President Muhammadu Buhari’s government and citizens of Nigeria greatly underestimated the degree of corruption in the country, especially high level corruption and the ferocity with which corruption can fight back. Besides, the politically exposed persons that are involved are so powerful and have allies in other arms of the government. So, they are all protecting themselves. It is a major fight and I’m beginning to get worried whether we can really bring corruption to its heels under a democratic system. That is my fear.
Why do you think that the war against corruption will be impossible under a democratic system?
If you remember Mrs Cecilia Ibru, former Managing Director of Oceanic Bank, Diepreye Alamieyeseigha, former Governor of Bayelsa State and Tafa Balogun, a former Inspector General of Police, were they all convicted within a very short time? What is the common factor in these three references? They were not allowed bail throughout their trial. What happens now is that the minute these people get bail, they will plan to go abroad for medical treatment and start bringing actions against the jurisdiction of the court and everything drags on for years. But when you deny them bail and they are remanded in prison custody they are ready for plea bargaining because they do not want to stay in prison. For me, fighting this war against corruption will be difficult under a democratic system. Former President Olusegun Obasanjo was a hard man. The Economic and Financial Crimes Commission (EFCC) under him was hard and that was why those convictions were obtained.
How would you react to the claim by critics that the present administration’s anti-corruption war is fraught with double standards?
Certainly, I don’t agree. That statement only comes from the PDP-oriented people (People’s Democratic Party). They were in government for 16 years. They controlled the resources of the state. Obviously, they are the only one who could have mismanaged those resources. I don’t really know what they expect. To my knowledge, some of them who have crossed over to the All Progressives Congress (APC) are still being prosecuted. I’m not going to mention names. Their crossing over has not helped them in that regard. So, I don’t quite understand what they are talking about.
What is your take on the recent blame game by some top government officials over the controversial reinstatement of Abdulrasheed Maina, former chairman of the Pension Reform Task Team, into the civil service despite allegations of corruption against him?
First, I see it as stupidity among the Nigerian elites because they say that this Mainagate is a big dent on the anti-corruption stance of President Buhari’s administration. However, the Maina saga started under former President Goodluck Jonathan. So, what are they talking about? He just resurfaced and President Buhari ordered that he should be sacked immediately, and he was sacked. Sadly, some civil servants and the Attorney General of the Federation wrote letters that are unexplainable, but President Buhari cannot be held responsible for the lapses of everyone he appoints. He appointed people on the expectation that they can do their job effectively with integrity. But a few government officials have behaved below standard. All those responsible for Maina’s reinstatement must be punished regardless of their positions in this government. That is my view. But you cannot use this case which stemmed from Jonathan’s era to judge this current government, particularly when the man is saying that a good number of powerful people shared this money under Jonathan’s regime.
Some people are not satisfied with the role of the Attorney General and Minister of Justice in the Mainagate. Do you share the same view?
Absolutely! The very best you can say about him is that he was naïve. The worst you can say is that he was complicit. And that level of naivety is too much for an Attorney General. That post is the most important in government after the President, the Vice President, Chief of Staff and the Secretary to the Federal Government. He is the most senior minister. He is the only minister whose responsibilities are stated in the constitution. So, his naivety may be unforgiveable in this circumstance and those letters are shocking for a person of that level.
What is your take on the recent judgment of the Court of Appeal to the effect that the EFCC has no powers to prosecute serving justices?
Well, that judgment is an exercise in self-preservation against future arrests. That judgment is invalid in law though I am not a court to pronounce it null and void. It is only the Supreme Court that can do that. It has absolutely no basis in law whatsoever because the EFCC, the ICPC and the police were created by the law to investigate, arrest, interrogate and prosecute. To say that because there is a provision for the National Judicial Council (NJC) to discipline judicial officers found guilty of misconduct does not affect the rights of other organisations at law. First, most of the cases taken on by the NJC have resulted in findings of not proven and only for the person to have been discovered to be guilty later. Second, the NJC is not a judicial body but administrative. It is not different from the Civil Service Commission, the Independent National Electoral Commission (INEC) and all those bodies that are established under section 153 of the constitution. So, if an INEC official receives bribe and rigs election, do we have to wait for INEC to discipline him before he is arrested and prosecuted? Those who are being tried in Rivers and Akwa Ibom states were massively bribed to rig the 2015 elections for the People’s Democratic Party (PDP).The INEC was not even informed because it was a crime. So, what these judges have done is to create a new law for their own protection. They have taken over the duties of the National Assembly and made a law to protect themselves against future prosecution for whatever crime they might have committed. There are many reasons why it is an illegal judgment. Hopefully, the Supreme Court will have the sense of responsibility to the nation to reverse this judgment, which is very bad and gives the judiciary the bad image of people trying to escape from the consequences of their act by using the law to cover-up.
In 2016, some allegedly corrupt judges were arrested and prosecuted. With the benefit of hindsight do you consider their arrests as worthwhile?
Why not? Their arrests were absolutely worthwhile. Judges, lawyers, accountants, auditors, developers and bankers are all ordinary citizens of Nigeria holding different positions. None of us is protected by the law from being arrested. Only four offices are protected from arrest and prosecution. These are: the President, Vice President, Governors and Deputy Governors. But theirs are temporary protection because they could be arrested when they leave office. The one the judges of the Court of Appeal are trying to create does not exist. They are creating section 308 for the Judiciary by saying that you cannot arrest a judicial officer. Of course, the authority of a judicial officer is not that he is protected by the law from arrest and prosecution. His authority is high moral integrity. Nobody will come near them if they have high moral authority. They will be feared even more than those who are protected by law. When people like Kayode Eso, Chukwudifu Oputa, Andrews Obaseki, Chukwunweike Idigbe, Mohammed Bello, and Anthony Aniagolu were in judicial positions, no agency in its greatest height of madness will ever think of going near them. Why? They had high moral authority. Anyone touching them knew that they will bring down the roof of this country on themselves. For instance, the previous military government of Buhari was viewed as a dreaded government. Yet, these judges gave judgments contrary to the desires of Buhari’s military government and Buhari respected them. The fire officer of Lagos State was arrested and dismissed for negligence when the NITEL Tower burnt in 1983. He went to court after Decree 17 was enacted by Buhari’s military government, which said that one will not question the act of any government agency especially in retiring and sacking people. The government pleaded that the court lacked jurisdiction. He lost in the High Court. He also lost in the Appeal Court. But he came to the Supreme Court and one after the other the court analysed the situation: what are the powers of the Federal Government to make laws for order and good governance? They ended up by saying that this so called offence was committed in 1983. Therefore, Decree 17 cannot be applied because the government that enacted Decree 17 did not exist in 1983 when the offence was committed. Buhari respected it. Do you remember Emeka Ojukwu’s case when he was thrown out of his residence?
The Supreme Court said it would not listen to the appeal of the military government that refused to obey the ruling of the Appeal Court on the matter. The court allowed Ojukwu to gain possession of his house. Those military governments respected the judgements because those men at the bench had high moral authority. Today, these judges want to abandon morality in their profession and cover themselves with what I call “fake law”. That is wrong. Let them exhibit high moral authority and no Department of State Services (DSS) or EFCC will ever dare to come near them. Everybody fears someone with high moral authority because the power he has is spiritual and more than physical power.
I will call on our judges to develop high moral authority and for those indulging in bribery to stop the act. And those who are not involved in bribery should start giving judgement based on justice. They should be highly principled and stick to the truth and people will respect them.
The Senate has refused to screen some of the nominees of the President for sensitive positions in protest over the continued retention of Ibrahim Magu as acting chairman of the EFCC. What does this portend for governance, especially the relationship between the legislative and the executive arms of government?
I look at it as petulance. When you deny a little child of “puff-puff” and he begins to scream in anger, throws away plates and smash everything because you deprive him of something. That is what the Senate is doing. We cannot continue to have a situation in which the legislature, in a feat of petulance , rejects every bill, refuses to confirm executive nomination, postpones consideration of the budget and refuses to consider it because the executive will not be dictated to regarding the officials it appoints to carry out executive responsibilities. We are supposed to have matured people and patriots as legislators who are always prepared to work for the good of the nation and not to have vanity and childish anger. So, if they like let them not approve anything, not even the budget and run Nigeria aground. Nigerians know who ran them aground and brought economic adversity on them. And when the consequence will come, it will fall on those people who did it. I do not believe in pandering to childish and irresponsible behaviour.
Why has Col. Sambo Dasuki, former National Security Adviser not been granted bail after more than two years of standing trial for allegedly mismanaging $2.1billion meant for arms procurement?
Government knows far more than the rest of us. Normally, people are granted bail. Even Nnamdi Kanu of the Indigenous People of Biafra (IPOB) was granted bail. I believe that Dasuki has not been granted bail based on something known to the government and not open to the public. That is my feeling. I believe that he is entitled to bail but probably government knows something the rest of us do not know. It may be something pertaining to security. I may be wrong but that is my feeling. But, generally, if courts were not so liberal in granting bail, many of these cases would have been resolved quickly.
Could you elaborate on the new Criminal Justice Administrative Act that provides for continuous trial of corrupt cases?
If a person brings preliminary objection or application that the court does not have jurisdiction, the court is compelled to hear the application but will give no ruling and continue with the main case. At the end, on the very day it will give ruling on the application, it will also deliver judgment on the corruption charges. If he is sentenced to prison he will go to the prison and can appeal from prison. When anyone of them appeals on interlocutory matters, the court must go on regardless of the appeal.
Also critical is that if a judge is promoted to the Court of Appeal in the middle of a case he is hearing, he must conclude the case despite his promotion. We know one case where a judge was promoted when he was about to read his judgement. The case had to be transferred to another judge. And for over four years now, that case has not gone anywhere. These are the things we are going to monitor. This is why we objected to senior advocates who have these cases being monitors. We need young lawyers, passionate, vibrant anti-corruption-minded people to do the monitoring because some judges are breaching the provisions of the Administration of the Criminal Justice Act. You see some adjourning cases for three months. This is misconduct which should actually result in removal from office. We may need drastic action. That is why people should watch proceedings in the newly created corruption courts to see that all the provisions of the Administration of Criminal Justice Act are followed.
What is the way forward for the anti-corruption campaign?
We have to soldier on, although, it is a difficult thing. The enemies are many and too powerful. About 90 percent of institutions in Nigeria are all for corruption and those serving in those powerful institutions feel they cannot survive effectively without it. They are doing everything from every corner to punch holes into the anti-corruption war. The judiciary is not cooperating except for the present Chief Justice of Nigeria who seems serious in his conviction that this war has to be fought.
But there are few judges who are determined to sabotage this course. Some are so angry about some position of the PACAC and my humble self that they show public discourtesy to us when we meet. Sometime ago, we organised a workshop for prosecutors on how to prosecute corruption cases. We brought in a judge from the Court of Appeal as one of the main facilitators. I have not met her in my life but I have read her judgments. I wanted to greet her but she refused. And I asked what could be the reason. I was very embarrassed. A whole judge of an appellant court doing this in public and cannot even hide whatever prejudice she was having. I went back to my seat. Sometime during her delivery she said: “Thank God, PACAC can invite us to come for lecture here rather than abuse us.” Then, I knew where the problem was coming from. So, sometimes when we say things generally, and they are hitting home, those whom we do not even have in mind think we are talking about them. But God knows what they have done that makes them to feel guilty to that extent.