Buhari's Anti-Corruption Courts (allAfrica.com)

It was a huge relief reading reports that President Buhari had concluded plans to submit a bill to set up anti-corruption courts to the National Assembly. According to the Punch of August 22 2015, the President decided to set up the planned special anti-corruption courts “because of the long delay by regular courts in deciding corruption-related cases.” The paper further revealed that the Presidency had already commenced the “process of identifying fearless judges that would be saddled with the responsibility of prosecuting corrupt persons.” The President, the paper said, does not want judges who will “do a wishy-washy job for him”.

The idea of special courts to try corruption cases has a long history. About two decades ago, Professor Ndiva Kofele-Kale, a University Distinguished Professor (UDP) at Southern Methodist University in Dallas, Texas, USA, argued for the recognition of a new international crime of ‘patrimonicide’. Similarly, Sonja Staar, a Professor of law at the University of Michigan, USA, in an influential article in 2007 called for the International Criminal Court (ICC), to treat ‘kleptocracy’ as one of the “inhumane acts” that could come under the jurisdiction of the ICC. Just last year (2014), Judge Mark Wolf, a Senior United States District Judge for the District of Massachusetts developed a case for an “International Anti-Corruption Court” in a concept paper he presented at the 2014 World Forum on Governance convened by the Brookings Institution and the Czech non-profit organization, Zaostřeno, in Prague, Czech Republic. Judge Mark Wold later published a shorter version of the paper as an op-ed in the Washington Post of July 22 2014.

Nearer home, in 2008, the NGO, Socio-Economic Right Accountability Project (SERAP), petitioned the ICC to “examine and investigate whether systemic/grand corruption in Nigeria amounts to crime against humanity within the jurisdiction of the ICC.” SERAP was to file another petition in 2012 in connection with an alleged $6bn dollar looting of the country’s fuel subsidy programme. In 2010, Nuhu Ribadu canvassed for the setting up of anti-corruption court in Nigeria- and his successors had pretty much followed the same line of argument.

Currently only a few countries – Pakistan, Philippines, India and Kenya- have special anti-corruption courts at the domestic level while the idea of an international anti-corruption court has remained still-born. Part of the criticisms of special anti-corruption courts at the state-level is the fear that such courts could become kangaroo courts for doing the biddings of the government of the day especially as corruption tends to be more endemic in countries where the institutions to check any arbitrariness or abuse of power, are weak. At the international level, the idea of an international anti-corruption court has been resisted by some on fears that it could turn out to be another ICC where only leaders from the developing countries who have fallen out of favour with the West will be herded.

Despite misgivings and debates about the whole idea of special anti-corruption courts -whether at the nation-state or the international level – there are a number of reasons why Buhari’s anti-corruption courts hold glimmers of hopes:

First, is that it will provide a framework for the whole talk about ‘fighting corruption’. Before the idea of the anti-corruption courts, all we heard was ‘probe’, ‘probe’, without any indication of the framework for such ‘war against corruption’. With many well placed Nigerians publicly calling on Buhari to “jail looters”, (as if the President had such powers in a democracy), there were concerns in several quarters about the implications of the regime’s anti-corruption rhetoric for the rule of law. I believe this is why several Nigerians, (including my humble self) took the principled position that any fight against corruption must be located within the ambit of the rule of law. Had the Presidency announced the idea of the anti-corruption courts first – especially with the report that he was looking for bold judges who would not do a “wishy-washy job for him” – much of the criticisms that have dogged the current anti-corruption rhetoric would have been muted.

Second, by announcing plans to set up the anti-corruption courts, the President gives hope that under his regime we will not all be condemned to ‘group-think’. In ‘group-think’, concurrence seeking is so dominant that those who dare to be different by raising controversial or non-conforming questions or even proffering alternative solutions are marked out as enemies by self-appointed mind-guards. In the current dispensation, those marked out are either blackmailed with such silly epithets as being ‘anti-GMB’ or ‘anti-North’ – as if blackmails, rather than ideas, are the currency of trade in the marketplace of ideas which underpins our democracy architecture. The idea of setting up the anti-corruption courts is therefore a rejection of the ‘group-think’ mentality of those who arrogated to themselves the role of the mind guards of the new order.

Third, if the President keeps to his promise that he is looking for judges of integrity, and not those who will do a “wishy-washy job for him”, it means that managing the politics of anti-corruption probes will be much easier as it will become more difficult for those charged with corrupt practices to play the ethnic and religious cards. Essentially therefore, embedding the regime’s planned ‘fight against corruption’, within the rule of law means that the regime will be freed from unnecessary distractions arising from the politics of probe.

However while I welcome the idea of the anti-corruption courts, there are several potential challenges that should be ironed out first to make such courts effective:

One, is the issue of definition. The first challenge for the government is to decide what it means by corruption. Should that include tax evasion? Should it include a roadside car mechanic exchanging your new battery for his old one when you stepped away to answer a phone call? What of student union leaders who fiddle with students’ union’s funds? Should our definition of corruption be limited to official corruption involving a certain amount of money or should it also include a police man accepting N100 in order to look the other way? Where do we locate cronyism, favouritism, ethnicity and nepotism in the fight against corruption? And what about failure by political leaders to punish corruption by friends, relatives or political allies? My feeling is that unless the definitional issues are first resolved, the proposed anti-corruption courts, will, just like the EFCC, spread itself too thin, and consequently also become ineffective. One way out may be for the proposed anti-corruption courts to have several divisions, with each division dealing with one or two types of corruption.

Two, for the proposed anti-corruption courts to work, they will also need elite corps of investigators. I am not convinced that the EFCC and the ICPC – as presently constituted – are up to it. I have in fact written several articles over the years critical of the system of ‘fighting corruption’ in the country, especially by the EFCC. For instance in an article on May 27 2010 entitled ‘Corruption: Time for a General Amnesty?’, I argued that the whole fight against corruption by both the EFCC and the ICPC had become so intertwined with political witch-hunt that it had become a charade and consequently the country might be better off considering a general amnesty for all accused of corruption. Therefore for the proposed anti-corruption courts to generate the needed confidence and legitimacy among Nigerians, there is a need to search for elite corps of investigators, (just like the President is reportedly search for judges with integrity to head the anti-corruption courts). Such investigators must not only be people of high integrity but also people competent in corruption investigations. If cases are not properly investigated, fearless judges are unlikely to be swayed by the public baying for blood when dismissing such cases. With competent investigators of integrity we may begin to see a drop in the current fascination with media trial and the public baying of blood of the high and mighty accused of corrupt practices. It may also help the unfortunate narrative that anyone who has done public service has willy-nilly stolen public money – a narrative that is a strong disincentive to attracting our best minds to serve the country.

Three, related to having elite corps of investigators is also the need to strengthen the prosecutorial capacity of lawyers who will be prosecuting the cases of those accused of corruption for the government. Many corruption cases fail at the courts because of extremely weak prosecutorial capacity.

Four, to aid the fight against corruption, the government will have to devise a scheme for protecting whistle blowers while simultaneously finding ways of discouraging busy-bodies from latching onto the government’s anti-corruption posture to maliciously tarnish people’s reputations or settle personal scores through spreading of deliberate falsehoods.

Five, more importantly the government has to realize that corruption tends to be more endemic in countries where the nation-building process is either in serious crisis or has failed altogether. In this sense, corruption is only a symptom of a more fundamental malaise of alienation from the state by individuals and constituent groups in a country. Therefore for corruption to be reduced to the barest minimum in a sustainable manner, the fight must be carried to the root of the problem – which is devising elaborate schemes to win back those who have de-linked from the Nigerian state as well as incentivizing the generality of Nigerians into creating an ‘imagined community’ in which they are all equal stakeholders.