That is why it is often said that justice must not only be done but must be seen to have been done. Taking a constitutional step to insulate the anti-corruption bodies from any form of executive/legislative interference would go a long way in promoting effectiveness of the anti-graft bodies and silence the conspirators.

The Anti-Corruption agencies are also hindered by complicated laws, like the Anti-Money Laundry Act that requires not only proof of laundering but proof that the money laundered came from illegal act. There is a strong case to be made that why the Ibori case collapsed in Nigeria was as a result of the inelegant drafting of the Anti-Money Laundry Law, which made it possible for a brilliant defence lawyer to raise series of doubts, which as we know, would ultimately count in favour of the accused in any adversarial criminal justice system.

The accused is presumed innocent until proven otherwise and the burden of proof in criminal trials is the highest level proof beyond reasonable doubt. Legislative reforms aimed at simplifying these overarching laws would be needed.

To aid effectiveness, there is also a need for a more effective Asset Declaration Framework. The Code of Conduct Bureau/Tribunal, as recent events threw up, would need to be looked into to ensure that their provisions do not conflict with the Constitution. In addition, there is need to fill the gap with regard to the process of disclosure. The Constitution currently does not require public disclosure of assets and liabilities. This is a discomforting omission because the public cannot monitor what they do not know.

The whole essence of disclosure is to aid accountability through public scrutiny. The opaque nature of the Constitution with regard to declaration of asset in a public manner has meant that public asset declaration has been elevated as a testimonial of a magnanimous/ good political leader. The benchmark for good political leadership should be higher than mere compliance to what should be expected in any decent society. Public asset and liability declarations should be given in a democracy worth its name.

The time is clearly ripe to revisit the Ethics in Government Bill, proposed by Olisa Agbakoba to the First National Assembly in 1998. It strongly urged that there is need for promulgation of Ethics in Government Bill to put pay to whether Assets should be declared publicly or not.

Asset-tracing and recovery are other crucial areas that are often lost sight of as the pursuit of retribution often diverts attention to where the focus should lie.
Criminal Law, though a vital aspect of our jurisprudence could be too mechanistic. To achieve a more enduring impact on societal growth, it stands to reason that Criminal Law must have to interact with Criminology, the science of criminal behavior. It is argued that successful prosecution and recovery of stolen funds are the most beneficial stages of the anti-corruption efforts. The Criminologist may further posit that recovering both the stolen funds and thief (offender) ought to be the focus of the struggle.
On recovery of stolen funds, we must be honest to state that the EFCC’s mandate to trace and recover assets has not been very successful. It could be argued that for a country desperate for development, recovery of stolen assets may be more important than incarceration of the offender. For Illustration, despite the widely celebrated conviction of James Ibori in the UK, Nigeria is yet to recover the stolen assets. Abacha’s assets are still outstanding. For Asset tracing/recovery, Nigeria relies on the Mutual Legal Assistance Programme, with countries like, US, UK. This programme has not been very beneficial. There is a need for a political decision to ensure that all trials take place in Nigeria.

There is a need to upgrade our legal system to meet the standard required internationally. Developing expertise of lawyers and law firms in this regard will also be fruitful.

The need for developing local expertise in asset-tracing and recovery becomes more compelling when one takes a close look at billions of African Stolen wealth abroad. In a recent Forum on Asset Tracing, a participant asked a Swiss prosecutor, what do you do when you recover Nigeria’s money? He responded that they set up a Trust Fund and nominate a prominent Nigerian into the board.

Trust Fund for Nigeria’s stolen wealth, abroad, whilst many are dying at home because of lack of money? Clearly, the current system of asset-tracing and recovery, which generally separate the real owners of the asset from it, until certain stringent conditions are met, is not good enough and risks recovered asset remaining entrapped abroad. The United Nations Anti-Corruption Treaty and related international law instruments should provide the bases for challenging the current practice.

Stolen funds are desperately needed to aid development in a country like Nigeria that is still struggling with basic needs of life. Nigeria ought to demonstrate readiness to be on the driver seat of this effort by strengthening and creating impregnable institutions and improving speed of free, internationally-compliant criminal justice system.

In conclusion, the war against corruption is a class war. It is a war between the forces of good and evil; between crude/short-sighted egoism and enlightened/ far-sighted self- interest. Nigeria stands a chance to win, if we all, especially the oppressed generality of our people stand up in unison against the very few people that are keen to rock the ship of our nation through massive stealing.

It is recommended, therefore that the President pursues the institutional pathway to combatting corruption. Carrying Civil Society Organisations and the Nigerian people along would be critical to success. Anti-corruption is a confrontation with a powerful, privileged class of Nigerians. To demobilize the seemingly confounding weapons of propaganda and wealth they wield. The President must align with CSOs and Nigerian people. The Anti-corruption effort must not only be just but must be seen to be just.
Mamah, PhD (London) is a partner & Head of Development Law, Olisa Agbakoba Chambers.

QUOTE: Insulating the agencies from political interference will also require a constitutional effort. In South Africa, certain institutions are constitutionally insulated from interference by securing their independence and financial autonomy… Taking a constitutional step to insulate the anti-corruption bodies from any form of executive/legislative interference would go a long way in promoting effectiveness of the anti-graft bodies and silence the conspirators.