Chairman of the seven-man Presidential Advisory Committee on War Against Corruption, Prof. Itse Sagay (SAN), in this interview with LEKE BAIYEWU and TOBI AWORINDE, speaks on what Nigerians should expect from the ongoing anti-graft probes
In the simplest terms, what are the responsibilities of the panel set up by President Muhammadu Buhari on his anti-graft war which you head?
We are not a probing organisation. The (anti-graft) agencies are already there. Our job, really, is to provide support. We are first to promote the fight against corruption generally, then to intervene comprehensively in the whole process in order to promote and support the existing agencies to be more effective and to have more capacity. We are also to make the administration of criminal justice more effective; produce results quickly and efficiently. Very broadly, that is what we are supposed to do.
Can you break it down into specifics?
There is no need breaking it down because our mandate is very wide. But, I can give a few examples of what I am talking about. For example, in the area of giving support to the anti-corruption agencies, we are going to interact with them; and when we do, we will find out what challenges they have. Why are so many cases stalled? Why are so many cases lost? Is it that they lack technical capacity in terms of equipment for investigation or in terms of training and manpower or people who can do forensic works effectively? Is it financial or is it a question of integrity; are there people in their midst who are colluding with the people being investigated? These are some of the things we are going to look into. Where they have challenges of the sorts I mentioned, it is our job to recommend procedures and actions to the government to take care of such problems and eliminate them. That is one aspect of our work.
Then, if you go to the area of administration of criminal justice, we are looking at a number of things. These include the speed with which corruption cases are held and concluded and how corruption cases are stalled in courts. For example, we are looking at adjournments, which, luckily, the Administration of Criminal Justice Act 2015 has now taken care of by eliminating any adjournments, and by stating that once a case comes up in court, it must be heard from day to day - Monday to Friday - without any adjournments. But where an adjournment is inevitable, because certain things can happen, it must not last for more than two weeks at the most. Also, there must not be more than five adjournments per case. But we also need to monitor the process to make sure that these rules are kept.
We also have the issue of judges who are hearing a case and they have almost concluded the case and they are promoted to the Court of Appeal. Under the present law, once that happens, they drop the case. A new judge will start afresh, as we have it in the case of Intercontinental Bank, which Justice Habeeb Abiru virtually concluded before he was promoted. Now it has started afresh. Who knows whether it will take another five years? That has been eliminated under the new Act. Whether you are promoted or not, once you are already hearing a case, you must conclude it. You cannot abandon it to take up your new post. You can take up your new post but you must conclude the case. That too has been eliminated.
Another thing is that we now have a new genre of senior advocates whose sole means of existence is to stall cases, especially corruption cases. And the way they stall cases is very simple: once the charges are filed, they look at the charge. Instead of tackling the charge and providing answers for the issues raised, they simply file a preliminary objection challenging the jurisdiction of the court to hear the case. And many judges, in my view, foolishly in the past, play along with these senior advocates. They abandon the main case and concentrate on the preliminary objection, which may take perhaps a year or two. Meanwhile, the substantive issue of corruption is suspended. When the judge finally arrives at the conclusion or judgment or ruling that he has the jurisdiction, the chap (defendant) appeals straightaway – still abandoning the substantive issue for the issue of jurisdiction - to the Court of Appeal. At the Court of Appeal, if he fails, he takes it to the Supreme Court.
How does the accused escape in that type of circumstance?
By the time the Supreme Court finally decides that the court has jurisdiction, 12 years or so might have elapsed. By then, the investigating police officer (prosecutor) is retired; the officials of the Ministry of Justice, who handled it (the case) at the early stages in the High Court, would have been promoted and the judges themselves could have retired. Thus, many things would have happened; and what we call prosecution fatigue sets in. What happens after is that the case dies a natural death. It is not that the accused is innocent but the state does not have enough stamina to pursue the case to the end. That is what has been happening.
For instance, governors, who were being investigated for what they did as governors, are now senators or occupying various important positions in the country without questions. What this Act has done is what any judge with common sense would have done before. The Act has decided to do it for them by stating that if anybody files a preliminary objection, the judge is compelled to take both the preliminary objection and the substantive issue together. He must no longer abandon the substantive issue.
Then, to make sure that there is no loophole, the Act also provides that where any party disagrees with any ruling of the court and appeals, the court must not stay proceeding because of any appeal; it must continue the day-to-day hearing regardless of any appeal. With that setting, we ourselves have set to do a number of things. One, to try and assist the judicial system and the government to ensure that we have in place a judicial structure that can hear corruption cases without any problem; without any issue of compromise or integrity. We are going to look for judges who have the honour and integrity, who are upright and have passion for justice and who can never be compromised. They are going to be indentified and transferred to the criminal division of each court; they will be there. We are not the ones to do this; it is for the Chief Justice of Nigeria and the heads of various courts to do. Once this is done, it will take care of the issue of quality and character of judges and the law. Then, we are ready to meet the challenges of corruption cases.
All the judges are meant to be incorruptible, but where the incorruptible ones are to be picked from among their colleagues for this anti-graft war, it means some of them are corruptible. What will be done to the corrupt judges and lawyers?
In our democratic system, there has to be proof before someone can be convicted or punished for anything. You may have judges who are rumoured or, in fact, known to be corrupt. But unless they go through the process of being tried, there is no form of punishment that can be inflicted on them. The best thing, for now, until such evidence has been concretely established, is to avoid them and let them deal with cases other than corruption cases. We need people who can resist the blandishment of material things and those are the ones that the system is going to try and pick up.
Some people are of the view that special courts, like the election petitions tribunals, are redundant since the accused will end up appealing a verdict in the conventional appellate and Supreme Court. Why the special courts?
There is no anti-corruption court right now. If we want that, we have to submit a bill to the National Assembly to amend the constitution to now include an anti-corruption court among the series of courts that we already have. That is a long process but it can be done; I don't know yet what the government is going to do. It is likely as a future measure against corruption that that is going to happen. We don't have that now. For now, we must work with the tools that we have. What is likely to happen now is to make the criminal division of the state high courts into, sort of, anti-corruption courts. We can use them for that purpose.
What will your committee do about the case of some VIPs on trial, who find their way to five-star hospitals in the name of illness while their trial is pending in court?
There is no doubt that Nigeria is a very difficult country. No matter what you introduce, the enemies of the country will introduce some counter moves to water down whatever you are trying to do and make it ineffective. That is the problem we have. But for you to be sent to the hospital during the period of conviction, you need a very credible medical certificate from a highly qualified doctor in the area of the illness, which states that the prisoner can only be attended to in that hospital such that he cannot be looked after in prison. It is a difficult thing when a doctor says that because if you, as a judge, reject it, supposing the man dies, that creates a big problem. To avoid such a thing happening, the tendency will be if there is a very cogent reason given by a doctor in a certificate, that person will be allowed to go to a hospital, which is unfortunate but it can't be helped. Eventually, you have prison officials and policemen being detailed to that hospital at extra cost to the state, to ensure that he does not escape while he is in the hospital. Altogether, it will be an unfortunate thing, which possibility cannot be ruled out.
What is going to be done such that crimes, especially financial, will attract commensurate punishments?
These are the areas that we are going to look into to ensure that the punishment fits the crime and that the law is no respecter of persons.
Do you think the removal of the immunity clause being enjoyed by certain public officers is a necessary measure to curb corruption?
I have never been a supporter of those who want to remove the immunity clause, because one has to really look at the character of our countrymen. Nigerians are fond of litigation; they will go to court at the drop of a pin. If a governor or the president is subjected to such litigation, I don't think he will have one minute's rest to do his job. He will be so distracted that governance will become more difficult than it is already, knowing the nature of Nigerians. Thus, I still support that clause. After he has left office, you can go after him; why not? We can wait for four years, or a maximum of eight years.
Some people believe that such officials under immunity cover should be tried for a criminal offence, if not civil offence. Do you agree?
That distinction should not be made at all. All cases should await the person leaving office.
There has been a controversy over Buhari's decision to limit his probe to the last administration. Do you think this is appropriate, looking at how deep the cankerworm of corruption has eaten into the fabrics of the country?
You are right, the cankerworm has eaten deep. At every level or segment of society you look at, corruption has eaten the heart out of this country. It is an enormous task and I think what the President really meant was that he would operate within this period; he has only four years, unless he is re-elected. How much can he achieve within that period? I think he is looking at what is immediately obvious and apparent. I refer to them as low-hanging fruits. It is just like you going into an orchard and you want to pick some mangoes. You pluck the big ones that are closest to the ground; you won't climb to the top and leave the ones below. If you still need more, then you can go higher. I think that is really what the President meant. If it is possible to conclude all the cases, which are so obvious; where the evidence is recent and easily obtainable; where we are being offered assistance from all over the world to identify and detect, then we move on to the next stage.
But looking at the power sector, for instance, there are some controversial contracts under ex-President Olusegun Obasanjo, especially the $16bn said to have been spent to revive the sector. How can the sector be probed under Jonathan without going beyond the last administration?
I don't think he (Buhari) is looking at it as Jonathan's time or Obasanjo's time; he is looking at it as what is so obvious and what is so clear and attracting immediate attention for action. When that is done, any other one even farther away will be tackled. All these are based on evidence.
Is it advisable to invite looters for talks to save the time and resources to be spent on judicial processes against them?
Yes, that can still operate in conjunction with taking them to court. That is very close to plea bargaining. I think that this government and the Nigerian State, through the administration of the Criminal Justice Act, has accepted that there could be plea bargaining.
If such a person releases the loot, should the person still be punished or allowed to go for returning the loot?
This is my view: There will be some punishment, but it will be very much mitigated; instead of the person going to prison for, say, 10 to 15 years, he may just have about three months-that sort of thing. Definitely, there will be a difference.
Is your committee also looking at recovery of loots stashed away in foreign banks?
I would say the government as a whole is very much involved in that. We can assist in our own way, but already, the government is in contact with many overseas authorities who have an idea where some of these loots are.
Are you expecting stiff opposition from these countries who are believed to be using the looted funds to develop their economies?
I don't think so. My impression so far is that most, not all, of the countries in which these monies are deposited are practically in developed Western countries, and are anxious to cooperate with the government to recover the loot. I know America has recovered almost $500m, and they held on to it because they did not want to hand it over to the last government. They are going to give it to this government. So, there is a lot of cooperation going on.
Are you saying the West did not trust the Goodluck Jonathan's government for fear that it was too corrupt?
Obviously, they did not. Corruption in Jonathan's government was an international fact known everywhere. Thus, they were not very happy with that government because of how corruption was so rife at every level such that everybody in the government was involved in it and it brought down the image of the country totally.
What do you think was responsible for the former President's inability to tackle corruption?
I don't think he saw it as a wrongdoing; that is my impression. A man who could say stealing is not corruption just shows you he didn't even understand what corruption is. He didn't seem to realise that stealing is equally a crime. It is as if to say, 'He merely stole, so we should leave him alone and not bother about that'. There is a certain lack of awareness of the gravity of corruption and its associated concept - a combination of ignorance and a certain, very dangerous innocence, I would say. If you don't know anything is wrong at that stage and you're head of a country in which a state is controlling hundreds of billions, meanwhile everybody is helping himself; it is very dangerous for the country.
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