ENUGU, DECEMBER 11, 2009

   Curbing the Menace of Corruption through Constitution Amendment



It is a great pleasure to be part of the 2009 Law Week. I must confess that
it feels real good to be home, once again. Looking through your letter
inviting me to this event, I discovered I was invited both as Special Guest of
Honour and also to deliver the Dinner Speech. I thank you so much for
such a double honour, especially for choosing me to deliver the Dinner
Speech. As for Special Guest of Honour, I guess I may need to confer with
the Organising Committee at the end of the event to be further educated on
that. I am yet to grasp how I became a Special Guest in my own affair and
my home and launch pad for that matter. Despite national call to duty, the
Nigerian Bar Association, Enugu Branch remains my root. And as the
Yoruba adage say, a river that does not forget its source will never run dry.
I have therefore come, not as a guest, but as a bonafide part of the whole.

The theme of the 2009 Law Week of the NBA, Enugu Branch, which is
“Economic Implication of Corruption in Nigeria - Legal Challenges of
Financial Crimes in Nigeria”, is a proof of the commitment of the members
of the Nigerian Bar to lead the anti-corruption crusade in order to reposition
Nigeria for sustainable development. It could not have come at a better
time because only a few weeks ago, the global corruption watchdog,
Transparency International, released its Global Corruption Report, 2009 in
which Nigeria slipped from 121st position and a Corruption Perception Index
Score of 2.7 out of 180 countries covered by the survey in 2008. The
country dropped to 130th position this year with a lower Corruption
Perception Index Score of 2.5 on a scale of the same number of countries
as in 2008. This represents a drop of 0.2 scores on the Corruption
Perception Index Score sheet. Negligible as this may seem, the reactions
trailing the report in both government and the civil society quarters are clear
pointers to the fact that Nigerians expect nothing but a steady escape from
the unbefitting list of corrupt nations. That was exactly why I termed your
theme auspicious. I am happy you rose beyond the fray of blame games to
instead chart a course for the nation away from such an undeserved odium.


I would not like to go into the details of defining corruption because we live
with its brunt and cost every minute of our lives- and they are quite high.
Only last June, the African Peer Review Mechanism which peer-reviewed
the country earlier submitted a damning 380-page report to the federal
government which stated unequivocally that “There is virtual agreement
among observers that corruption - political and economic- primarily
explains poverty in Nigeria” and that the malaise “has held back economic
growth and development”. It also admitted the earlier revelations of the
former President of the World Bank, Paul Wolfowitz, that Nigeria had lost
about US$300 billion in almost about the last forty years to corruption. To
bring it closer home, I must confess that each time I see a road accident
caused by bad state of roads, especially on roads that were awarded but
abandoned, what comes to my mind is corruption. Each time a soul is lost
at a public hospital because of lack of medical facilities and drugs budgeted
for saving lives, it is more about corruption. The list is endless. I would
therefore simply flow with the Transparency International’s operational
definition of corruption as the abuse of power (and I would add trust) for
private gain.


The current post-military Nigeria is unarguably the most outstanding of the
previous democratic eras in specific measures and legislations targeted at
curbing corruption. At the inception of the current democratic dispensation
in 1999, the Transparency International ranked Nigeria 98th on the
Corruption Perception Index table with a Corruption Perception Index score
of 1.6. The 1999 index surveyed 99 countries, drawing on 17 different
surveys from 10 independent institutions carried out among business

people, the general public and country analysts. The country was ranked
98th out of 98 surveyed countries in 2000 with a dipped Corruption
Perception Index score of 1.2, hence presumably the most corrupt country

Though corruption is a global cancer, it will not be out of place to say that
the disease appeared to have nested in the country under long years of
military rule. The social, economic, and political costs of corruption was so
high that something extra-ordinary had to be done to salvage the situation.

The ICPC ACT 2000

The first of such major steps taken since 1999 was to create a distinct body
charged specifically with combating corruption. The Independent Corrupt
Practices and Related Offences Commission, ICPC Bill, which received the
support of the National Assembly, gave rise to the ICPC Act 2000. It
brought a lot of impetus, determination, unique and holistic approach to
bear on the anti-graft war. It was able to capture corruption in their
numerous shades and forms. The Act was the first step under any Nigerian
civilian dispensation to set up a distinct body with wide-ranging power,
traversing enforcement, prevention, and enlightenment. The ICPC was
inaugurated by former President Olusegun Obasanjo on the 29th of
September 2000.


Another notable step in the fight against corruption where the National
Assembly has played remarkable role is the establishment of the Economic
and Financial Crimes Commission, EFCC. The emergence of the EFCC
became imperative owing to the preponderance of economic and financial
crimes such as the advance fee fraud also known as 419, money
laundering, etc that had not only tainted the country’s image greatly, but
was also a disincentive of monumental proportions to direct foreign
investment and the nation’s socio-economic development in general. The
EFCC Act 2004 mandates the agency to prevent, investigate, and
prosecute economic and financial crimes. The introduction of the EFCC
has been globally acclaimed as one of the decisive and revolutionary steps
by Nigeria under a civilian regime to grapple with the challenges of
economic and financial crimes.


Besides these, Nigeria has also taken several other notable steps, both
legislative and policy wise to combat corruption since 1999. They include
the passage/establishment of the Code of Conduct Bureau and Tribunal
Act in accordance with Part 1 Fifth Schedule of the 1999 Constitution to
monitor public officials through the collection and verification of asset
declarations; the launching of the Nigerian Extractive Industries
Transparency Initiative, NEITI, (a subset of the globally renowned
Extractive Industries Initiative) in 2004 and enactment of the NEITI Act
2007 to pursue due process, transparency, and accountability by those in
the extractive industry, notably oil and gas, to government and its agencies
as well as transparency and accountability by governments and
government agencies in the use of such revenues; the establishment of the
Budget Monitoring and Price Intelligence Unit also known as Due Process
Office which later metamorphosed into the Bureau for Public Procurement
vide the Public Procurement Act 2007; and of course, the Fiscal
Responsibility Commission born by the Fiscal Responsibilities Act 2007 to
check fiscal profligacy and opacity, etc.

It is also worthy of note that corruption, especially in its large scale forms
could hardly thrive without cross-border accomplices. Nigeria has since
1999 therefore joined the global coalitions aimed at fighting corruption. The
country signed the African Union Convention on the Prevention and
Combating of Corruption in December 2003, but it was ratified by the
National Assembly in September 2006. Others include the United Nations
Convention Against Corruption signed 2003 and ratified in December 2004;
and the United Nations Convention Against Transnational Organised Crime
signed in December 2000, but ratified in June 2001.


Due to the persistent challenges of corruption, not a few have wondered to
what effect these initiatives have been in curbing corruption. While the
recent rating by the Transparency International may be worrisome, it is
significant that the coming into force of these initiatives have done the
country a whole lot of good. Despite the fact that we have a whole lot of
room for improvement, the important thing, to my mind, is that we have
taken some decisive steps forward.

Indeed available data buttress the fact that Nigeria has recorded an
unprecedented breakthrough in an anti-corruption war that has clamped
down on both the high and the mighty. The anti-corruption war has had
highly placed incumbents impeached or sacked. This too has reflected in
our Corruption Perception Index performance on the Transparency
International table. As earlier mentioned, Nigeria was ignominiously rated
as the most corrupt nation at the inception of democracy in 1999, sitting at
the bottom of all the 99 surveyed countries worldwide. But the country was
rated 90th out of 91 surveyed countries in 2001 with a 1.0 Corruption
Perception Index (CP) score where 10 was the maximum score. We were
rated 101st out of 102 countries in 2002 with a CPI score of 1.6. The rating
dropped to 132nd out of 133 with a CPI score of 1.4 and 144th out of 145
with a CPI score of 1.6 in 2003 and 2004, respectively. In 2005, the country
recorded a comparative improvement of 1.9 CPI score even though it
ranked 154th out of 159 surveyed countries. 2006 and 2007 were even
better with a common CPI scores of 2.2, but with a differing ranking of
142nd out of 167 and 147 out of 149, respectively. However, 2008 was
unarguably the country’s best, with a CPI score of 2.7 and ranking as 121st
on a table of 180 countries. But for the fluctuations of the early 2000s
which, understandably, were the birth and teething years of the anti-
corruption agencies, Nigeria, as could be seen, has made remarkable
break form the past, shedding the toga of the most corrupt nation in 1999 to
one globally acknowledged to be making a steady progress.

But it must be admitted that the slump on the Corruption Perception Index
score and table this year is true testimony to the fact that while you fight
corruption, it also fights back. Several factors have been pointed out as
debilitating factors to the anti corruption drive in the present dispensation.
The Business Anti-Corruption Portal of the Denmark based Global Advice
Network, for instance, believes we have done well in the area of putting
legal and administrative frameworks for combating corruption in place, but
is quick to point out that “as with legislation and regulations in general in
Nigeria, implementation is weak”.


I believe such views as expressed by the Global Advice Network are not
very different from views at home. I also suppose such must have informed

your theme for this year and the request that I speak on how we could
utilise the opportunity availed by the ongoing Constitution amendment
process to firm up the anti-corruption institutions and frameworks to make
the anti corruption drive more robust and effective.

So many issues have been raised about the 1999 Constitution pertaining
to the anti corruption war. I will however highlight the most salient of them
and also articulate areas I think should be of interest to the Nigerian
lawmakers in the ongoing amendment.


Section 308(1) of the 1999 Constitution, popularly referred to as the
Immunity Clause has proved to be one of the most controversial provisions
of the 1999 Constitution. According to the letters of Section 308 subsection
1(a) and (b), “no civil or criminal proceedings shall be instituted or
continued against a person to whom this section applies during his period
of office” and “a person to whom this section applies shall not be arrested
or imprisoned during that period either in pursuance of the process of any
court or otherwise. In fact, subsection 1(c) further states that “no process of
any court requiring or compelling the appearance of a person to whom this
section applies, shall be applied for or issued.”

This provision is generally deemed by many as virtually offering a carte
blanche to the executives, from the President down to the Deputy
Governors. Not a few believe that the germane intendment of this Section
of the Constitution have been undermined by the alleged corruption and
corrupt tendencies by many of those to whom it applies. The anti-corruption
agencies have also variously identified this Section as a great impediment
to their efforts. Mr. President had voiced his support for the expunging of
the Immunity Clause in his address before the representatives of multi-
national corporations under the auspices of the Partnership Against
Corruption Initiative, in Switzerland in 2008.

It is up to the lawmakers, therefore, to take a critical look at the merits and
demerits of the Immunity Clause in Section 308 (1) and act accordingly.


Several issues have also arisen on the powers and autonomy of the ICPC
and the EFCC, the two major anti-corruption agencies which would require
a constitutional intervention. They include:

Constitutionality of ICPC AND EFCC

There have been quite some arguments and even court cases on the
powers of the ICPC and the EFCC, and whether they, being federal
government agencies, have powers to stretch their statutory functions to
federating States or their officials.

The constitutionality of ICPC, for instance, was first tested in the case
instituted by Ondo State against the Attorney-General of the Federation.
The precedent-setting case was instituted in May 2001 and lasted till June
2002 when the Supreme Court ruled on it and virtually grounded the
activities of the ICPC for that period. Section 15(5) specifically makes it a
political objective of the state to abolish all corrupt practices and abuse of
power. Despite the fact that the political objective is part of the
Fundamental Objectives and Directive Principles of State Policy in Chapter
II which are made non-justiciable by Section 6(6)(c), the Supreme Court in
this case of A.G Ondo V A.G Federation enforced the provisions of Section
15(5). The Supreme Court gave effect to the provisions hitherto adjudged
non-justiciable provisions by reading them jointly with the justiciable
provisions of the Constitution. Permit me to quote JSC Uwaifo on that
landmark judgement. He said: “The purpose and mission of the Act are clear. The
Act is meant to make justiciable by a legislation the declared State policy to abolish
corrupt practices and abuse of power, it is to harken to national and international
concern over corruption; it is to give a national leadership and impetus to the crusade
while not standing in the way of the states; it seeks amongst other things to deal with
and punish specific offences on corrupt practices even including those committed
outside Nigeria by citizens and persons granted permanent residence in Nigeria: see
section 66. It is not in any way an attempt to embark on a general criminal law
legislative jurisdiction. The eradication of corrupt practices and abuse of power will inure
to the good government of Nigeria.” Instructively, that precedent have been
followed in subsequent cases like FRN V. Anache (2004) 14 WRN 1 (SC);
Olafisoye v. FRN (2005) 51 WRN 52 (SC)

Despite this, notable legal luminaries have continued to throw in plausible
arguments. Professor Ben Nwabueze (2007), for instance argued

extensively and passionately against the constitutionality of the EFCC. It is
therefore imperative to use the opportunity of the Constitution amendment
to lay any merits in such arguments to rest and embolden the agencies with
legitimate/unquestionable tentacles.

Security of Tenure

The security of the tenure of Members of the ICPC and the EFCC are not
constitutionally guaranteed like other sensitive bodies listed in Section 153
(1) of the 1999 Constitution. Section 157 (1) provides that members of such
bodies “may only be removed from that office by the President acting on an
address supported by two-third majority of the Senate praying that he be so
removed for inability to discharge the functions of the office (whether
arising from infirmity of mind or body or any other cause) or for

Though the ICPC Act 2000 makes the same provisions in Section 8, it has
been argued that it is not enough to guarantee them a security of tenure.
There are also fears in some quarters that such Act could be more prone to
the vagaries of the political climate. This was made most manifest in 2003
when the National Assembly, fearing that the body had become a political
tool of aggression in the hands of the Presidency, hurriedly scrapped off
the body. It took the intervention of an Abuja High Court to upturn the
legislation for lack of adherence to legislative due process.

Meanwhile, while members of the ICPC have some protective covers under
the ICPC Act, the EFCC Act does not have any such provisions. Section 3
(2) of the Act states that: “A member of the Commission may at any time be
removed by the President for inability to discharge the functions of his
office (whether arising from infirmity of mind or body or any other cause) or
for misconduct or if the President is satisfied that it is not in the interest of
the Commission or the interest of the public that the member should
continue in office”. It simply implies a President could just wake and sack
the Chairman or any member of the Commission for any reason, justifiable
or not and without recourse to anybody. Even at that, there is no
established procedure of removal of members by the President. This
creates a worrisome scenario of “He who sacks the piper dictates the tune”.
There is general complaint that S.3 (2) of the EFCC Act makes it more
difficult for the Chairman and Commissioners to resist political
manipulations. It infringes their independence.

Though there are ongoing efforts by Senate to amend the EFCC Act after
initial efforts failed at the concurrence level in the House of Representatives
in 2007, it is also necessary for members of the National Assembly to
entrench the tenure of members of the ICPC and the EFCC in the


A number of persons have voiced their discomfort over the mode of funding
of the ICPC and the EFCC. For instance, Section 35(2) of the Act states
that “There shall be paid and credited to the fund established pursuant to
subsection (1) of this section such monies as may in each year be
approved by the Federal Government for the purpose of the Commission”.
At the bottom of the grudge is the morality of allowing a body that should be
a watchdog over all to depend on a government and its officers it is
supposed to be checkmating for funding. It has been argued as an
unfavourable case of “He who pays the piper dictates the tune”. Thus it
could be plausible to amend the Constitution to enable them draw their
funds as first line charges?


There have been incessant calls for the separation of the Office of the
Attorney-General from that of the Minister of Justice. Proponents believe
the current merger is an unprofitable spanner in the wheel of anticorruption
war as it not only slows down processes, but also makes it very susceptible
to political horse trading. There has been serious outcry at both State and
Federal      level   of   the    penchant   by    Attorney-Generals       and
Ministers/Commissioners of Justice to technically kill well established prima
facie cases by simply entering nolle proseque.

Again, the failed attempt in 2007 to make it mandatory for the EFCC and
ICPC to seek the approval of the Attorney-General and Minister of Justice
before filing cases in courts is one clear danger in combining a purely
professional    position   with   a   purely political one       as   the
Minister/Commissioner for Justice also sits with the President/Governor in
Council. In Gani Fawehinmi vs. the President, Justice Aboki in 2007 had
remarked that not once in Nigeria’s 47 years as at the time had any

Attorney-General sued a President/Governor as should nominally be the
case. In fact, the Chairman of the West African Bar Association and
activist, Femi Falana has bluntly accused the Office of the Attorney-
General of the Federation of continuously frustrating the efforts of the
EFCC and the ICPC. His call is coming on the heels of a recent position by
a senior member of the Bar and former Attorney-General and Minister of
Justice, Prince Bola Ajibola.

It is left for the lawmakers, in the course of the constitution amendment, to
weigh the pros and cons of this to the administration of criminal justice,
especially as it affects the anti-graft efforts of the country. But it is
imperative to note that Section 174 of the 1999 Constitution does not
provide for the Office of the Minister of Justice, but that of the Attorney-
General of the Federation. As such, at best, the constitutional intervention
would be, if deemed fit by the lawmakers, to state expressly that both
cannot be vested in an individual.


The Nigerian anti corruption agencies have continuously complained about
the judicial system, describing it as slow and windy. They have left the most
part of the blame for the low number of convictions and slow pace of justice
on the extant circumstance where Nigeria wants extraordinary results using
conventional system. This apparently re-echoes the views of Robert
Klitgaard who believes that “When corruption becomes systemic...fighting
corruption requires administering a shock to disturb a corrupt equilibrium.”
He believes a successful strategy must begin by frying a few big fish.
Unfortunately, slow and windy judicial system appears to be all too cold for

Therefore, special anti corruption courts have therefore been advocated as
the panacea as well as a veritable shock therapy as each conviction is a
shocking reminder that anti corruption war is a reality, and that the
agencies not only bark, but bite as well. This has been applied or is still
being applied by severally countries. Italy, for instance has made use of
special anti-corruption courts. Presently, Croatia is setting up anti
corruption courts known as the USKOK Courts to speed up corruption
cases. The Musharraf Government created the National Accountability
Bureau and special courts at both national and provincial level (which also
has the Anti Corruption Establishment) for speedy trial of corruption cases.

The Sandiganbayan in Philippines is also a special anti-corruption court
with exclusive jurisdictions over any violations of the Anti-Graft and Corrupt
Practices Act, the Unexplained Wealth Act and other crimes and felonies
by individuals in relation with their offices both in public and private sectors.
Here in Africa, Kenya established the special anti-corruption court under
the Prevention of Corruption Act.

It might be advisable for the nation to take a clue from such measures to
facilitate speedy and terse dispensation of justice.


It is pertinent at this juncture to stress the fact that even with all the best
steps to strengthen our anti corruption drive, via the Constitution
amendment process, we still require a lot of political will to get us to where
we are aiming. Political will not only gives impetus to the institutional and
legal frameworks, it will also fill in the gaps where necessary.

Political will has been a remarkable driving force in countries across the
globe. Nigerians should be ready to stop compromising or sacrificing the
anti-corruption efforts on the altar of narrow interests and politics. Political
will is the determination and courage to consistently do the right thing
irrespective of whose ox is gored.

Several countries across the globe, from developing to developed world are
ready examples of political will in action. Only recently, a French court ruled
that the former President of France, Jacques Chirac must stand trial in the
interest of justice for embezzlement charges that even took place before he
became President, between 1977 and 1995 while he was the Mayor of
Paris. In July this year, about 1,500 public servants, many influential judges
and police officers, government officials, and executives were all arrested
and charged over corruption and related matters in the Province of
Chongqing alone to crush an organised and sophisticated corruption
syndicate even within the Central Committee, China’s ruling body.

On 30th September 2009, Fujimori Alberto, former President of Peru was
found guilty of abuse of power and bribing his spy agents with about US$15
Million. He was also accused, among other corrupt tendencies, of bribing
thirteen congressmen and editorial board of a newspaper house and a

television outfit. He was sentenced to 6 years in prison. Former President
Fredrick Chiluba of Zambia had also stood trial in Zambia for about six
years before his acquittal in August this year. His major offence was that he
allegedly drained about US$500,000 from the country during his
Presidency from 1991 to 2001. In Israel, former Prime Minister and
Statesman, Ehud Olmert is at the threshold of a five year jail term if
convicted of allegations of corruptions for which he had resigned his
position earlier in the year before going on trial in September. In fact, some
of the charges spanned his tenure as mayor and minister.

A situation where the EFCC or ICPC goes shopping for judges that would
be forthright and intransigent to political manipulations is pathetic. A
situation where members of the public are misled into interpreting every
anti-corruption move and catch from the prisms of petty sentiments is as
well a pointer to the fact that the anti-corruption institutions need as much
political will and citizenry support as the strengthening of legal frameworks
to succeed.


My last take on this is expectedly about what members of the Bar are
supposed to do. Several accusing fingers have been pointed in the
direction of the Bar as being responsible for the manipulation of the
loopholes in the Nigerian justice system to frustrate the anti-corruption
efforts of relevant institutions. From frivolous injunctions and contest of
jurisdictions, the substantive cases are hardly heard. It is up to members of
the Bar to balance their business or professional interest with the patriotic
obligation of riding Nigeria of corruption.

But even beyond that, as learned men and women, it is also expected that
the Nigeria Bar Association should be at the vanguard of robust activism
and enlightenment campaigns to add impetus to the quest for solutions to
the corruption malaise. I had earlier acknowledged your theme this year as
one of the indicators of your unalloyed commitment towards this end. It is
also important to note that the process of constitution amendment is highly
participatory and inclusive. As the zonal public hearing train moves to
Enugu very soon, you should as well take advantage of that to articulate
your thoughts on how the National Assembly could help check the bane of
corruption through the instrumentality of constitution amendment.


I wish to reassure all on the commitment of the National Assembly to make
sure the quest for the amendment of the 1999 Constitution succeeds this
time. Be sure, as I said that we need your support and input. Every idea will
be treated on its on merit. We must all collaborate to make it work.

Once more, I congratulate you on the successful organisation of the 2009
Law Week programmes. I commend you for your patriotic zeal and
devotion to lifting Nigeria back into her rightful place in the comity of nations
through concerted efforts to checkmate the aberrations and ugly impacts of

Thank you for your attention and God bless.

                      SENATOR IKE EKWEREMADU, CFR
             Deputy President of Senate, Federal Republic of Nigeria


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