Is Buhari’s proposed anti-corruption tribunal constitutional?

The President needs to be properly advised by the Attorney General of the Federation and Minister of Justice, and other lawyers who have experience. The government should work within the existing laws. The current National Assembly is not on the same page with most Nigerians as regards fighting corruption. With the special court bill and other anti-corruption bills languishing in the National Assembly, it requires no oracle to predict the fate of this proposal if routed through the Assembly. The executive must therefore explore and exploit existing legal instruments like Section 7 of the Economic and Financial Crimes (Establishment) Act to achieve the unexplained-wealth-forfeiture agenda of the Federal Government.

Section 7 (1) of the EFCC Act says the commission has power to: “(a) cause investigations to be conducted as to whether any person, corporate body or organisation has committed an offence under this Act or other law relating to economic and financial crimes; (b) cause investigations to be conducted into the properties of any person if it appears to the commission that the person’s life style and extent of the properties are not justified by his source of income.”

This is an enormous power within the mandate of the executive. A department should be created by the EFCC which should be heavily funded to deal with unexplained wealth while the President also explores other constitutional means to secure forfeiture of the identified assets. •Lanre Suraju (Chairman, Civil Society Network Against Corruption)

The President’s opinion or proposal has two major hurdles to clear. First of all, it must be asked if under the constitution, the President can propose a federal legislation that will prima facie presume that everyone who has property is guilty of a crime and must explain. In other words, whether the President can constitutionally cause to be enacted, a law that will reverse our jurisprudence; that will presume guilty anyone who has wealth that he or she cannot explain. In other words, presuming somebody with money as guilty of an offence. I doubt if he can do that.

The second hurdle is, can he create a new court outside the one that the constitution has created? Maybe he can ask the National Assembly to create a new federal court. The constitution has listed a number of courts and given them descriptions and powers. Irrespective of the views of the President, I doubt if he can lawfully create a court different from the ones provided for by the constitution. If what he is proposing is in the nature of a tribunal, it will be met with judicial dismissal. That is not to say that we don’t have challenges of corruption in the country. But it is not by creating new courts that the problems would be solved. Rather, it is by empowering the courts. When you go to our courts and judges are writing by hand, it is demoralising.

You need to encourage the judges, you need to modernise the court system and then you need to look at our laws the way they are and see if you can propose amendments. The constitution says anybody who is accused of a crime shall be presumed innocent. If the President says ‘no, I want to presume them guilty,’ you will be running contrary to the constitution unless you amend it. Also, anyone who is accused of a crime is at liberty to remain silent. So, if he says he wants a law that will compel people to be talking, again he would be running against the constitution. •Ifedayo Adedipe (SAN)

My position is that financial crimes are not only cases related to state financial offences like the cases handled by the EFCC, ICPC and Code of Conduct Bureau. They should accommodate crimes that are citizen-led; for example, cases related to public procurement. It, therefore, means that an anti-corruption court’s jurisdiction should include cases related to the Freedom of Information Act, Public Procurement Act, Code of Conduct Bureau and Tribunal Act, among others. No doubt, it may require a constitutional amendment for ease of administration and cost. The Code of Conduct Tribunal should be renamed Anti-Corruption Court. However, this will require a constitutional amendment. The court will have the responsibility of handling only corruption and financial crime cases.

I agree that there is a need for a special court to try all forms of financial crimes. The remedy for fiscal sanity is in the bowels of a specialised court and procedure. This will promote knowledge, training and coherence. The case of a special court to expedite proceedings and attain the ends of justice is unassailable.

The challenge before the proposed special court would be to define the boundaries of corruption-related offences to be brought before it. Venality can be lost if the court is not deciphered along the sentiment of jurisdictional gerrymandering. It is the law that assets acquired by public officers, after formal declaration exercise and cannot be fairly attributable to income, gifts and loans, are deemed to be acquired in breach and the onus shifts to the public officer, according to Section 15 (2) of Code of Conduct Bureau and Tribunal Act.

Nevertheless, corruption is too specialised to be handled by an unspecialised court or tribunal. An effort to foist a distinct judicial arm to pronounce on the plethora of anti-graft legislations will produce overt patriotic fervour. Special courts can fortify the moral conscience of the majority of public officers. •President Aigbokhan (Executive Director, Freedom of Information Counsel)

He cannot do it by executive fiat. It has to be by an Act of the National Assembly. Under the present Economic and Financial Crimes Commission Act and other various Acts and laws that are operating, their jurisdiction is already circumscribed by the enabling laws creating them. Actually, there was a decree before now which stated that a public officer can be asked to account for the difference between the assets he has and his legitimate income. I know that if Buhari says that he wants to set up a tribunal like that, people will also go to court to challenge it.

It is not a question you can just answer yes or no. These are the situations: If he wants to use existing laws, we want to see how best the laws are seen to be in conformity with the constitution. It must go through a process of judicial exercise too. There are people who will go to court to challenge that. There is a pending case now; they are already testing it against the Deputy Senate President, Senator Ike Ekweremadu, in a bid to seize the 22 houses they said he did not declare. He has already through his lawyer argued that that Decree of 1984 is obsolete and cannot stand in view of the present constitutional and democratic condition. So whether the move is constitutional or not, at the end of the day, it will be decided by the court. I think it is important to wait and see.

In view of the need to speedily dispose anti-corruption matters, the best way is to get that law of 1984; dust it up; modernise it and send an appropriate one to the National Assembly for a proper and enabling act. The Act of the National Assembly can cure that. But the present crop of members of the National Assembly are seen by some people to be very hostile to the government. That is the problem. Given the fact that some of them are having issues with the EFCC, I do not think they will make a law that will put them in jeopardy. Actually, there are so many bills pending before the Assembly on how to fight corruption but they are sitting on those bills. •Mr. John Baiyeshae (SAN)

If Mr. President wants to establish an anti-corruption tribunal and it is passed by the National Assembly, then it is legal because it has gone through due process of the rule of law. But if it is not approved by the National Assembly, then the President does not have the exclusive power to do so and it is illegal and unacceptable. However, anything that could be done to eradicate corruption — not even to curb or reduce — is acceptable to the CLO. It has been our desire, demand and campaign that Nigeria becomes a transparent society. But the problem is setting up institutions without conviction and action. Don’t we have the Economic and Financial Crimes Commission? Don’t we have the police? Don’t we have the Independent Corrupt Practices and Other Related Offences Commission? What are they doing? Is the corruption not increasing? Even the All Progressives Congress who claimed that they were coming to address corruption and insecurity in Nigeria; have we not seen more insecurity and more corruption under this government?

So, it is not about saying we will do this and that. There are enough institutions that are already on the ground. We have been advocating special courts to handle corruption cases and that has been done by the new Chief Justice of the Federation (Justice Walter Onnoghen). Even the judges who are going to try the people (suspects), how are they going to get them? It is the commitment of the people who are in power to build strong institutions that is important; it is not the establishment of new ones. •Mr. Ibuchukwu Ezike (Executive Director, Civil Liberties Organisation)

Compiled by: Success Nwogu, Eniola Akinkuotu, Alexander Okere, Ade Adesomoju and Leke Baiyewu