Eze Onyekpere
The recent arrest, detention, suspension and investigation of Ibrahim Magu, the acting chairman of the Economic and Financial Crimes Commission by a presidential panel is a good indicator of the state of our anti-corruption struggle. The Ibrahim Magu story, starting from his appointment by the President, Major General Muhammadu Buhari (retd.) and screening by the Eighth Senate and his continued stay in office in acting capacity for five years, provides an ample canvass for drawing lessons, opportunities for changes in law, policy and practice as well as suppressing the mischief in the anti-corruption struggle while advancing key remedies.
Instructively, four key issues arise from the Magu story.
The first is that presidential appointments are supposed to be anchored on an empirical search for square pegs to occupy square holes. In the process, institutions of state including its security and intelligence agencies play a key role in background checks to ensure that appointees are fit and proper persons to occupy the designated positions. In the Magu appointment, it appeared there was an initial failure of intelligence. When the President eventually turned him over for the Senate’s screening, the report of the Department of State Services, which is usually sought for in all cases of senatorial screening, was negative, leading to his being rejected by the Senate. The President was insistent and pushed him for screening a second time and the DSS produced a more damming report to the Senate leading to his second-time rejection. The Director General of the DSS is a presidential appointee just as the chairman of the EFCC is. Instead of appropriately apportioning the blame in terms of recognising that Magu was not qualified for the job, politicians and some sections of media went to town demonising the leadership of the Senate.
The most surprising element was that even some very senior lawyers including those of the activist hue joined the fray and encouraged Magu to continue in an acting capacity arguing that the Senate’s approval was not necessary for him to assume office. The President insisted on his being the chair of the EFCC in violation of legal provisions and he has been acting in the last five years. Even after the elections last year and a new Senate leadership purportedly friendly to the President was elected, Magu was not re-submitted for Senate screening and approval. In this, there is a sense in both the President and his appointee that they are above the law and can violate the law with impunity. If the Senate approval was not necessary for him to assume office, why did the law provide for screening in the first place?
The second issue is that the law establishing the EFCC and its emerging practice has created a monster of an institution. The agency has powers of investigation, arrest, detention, prosecution, seizure of assets and the disposal of assets. Thus, an agency with powers of life and death was created. Three streams of powers are discernible from the omnibus powers of the EFCC. The powers of arrest, detention and investigation are one stream; prosecutorial powers are a second stream while asset recovery and management are a third stream. These three streams should have been separated for independent agencies. The EFCC should have been left with the powers of arrest, detention and investigation while the prosecutorial powers reside with the Ministry of Justice. An asset or proceeds of crime management agency takes over forfeited and recovered assets. What this means is that the EFCC was constituted as a jack of all trades and indeed, it has shown that it is a master of none.
Yes, corruption was and is still of grave concern to Nigeria. If the institutions entrusted with powers and duties stated above were not forthcoming in the discharge of their duties, all that was needed was to reform and re-energise them with new human and material resources and not the creation of a new agency to take over their jobs. Thus, the federal and state Ministries of Justice needed and are still in need of reform. This is related to the long held reform position that the office of the Minister of Justice, which is political, should be separated from that of the Attorney General, which should be manned by a technocrat and career officer with constitutional security of tenure to enable him dispassionately prosecute crimes including corruption and defend the public interest without political colouration.
The Eighth Senate passed the Proceeds of Crime Bill but President Buhari on specious reasons declined assent. This bill would have provided for the proper custody and management of forfeited and recovered assets in an empirical manner involving proper documentation, transparency, accountability, value for money and other larger objectives of state. It is very easy to see shortsightedness and lack of knowledge in the way recovered assets have been handled. Investments such as hotels, radio stations and even hospitals, seized as the proceeds of crime, were simply shut down, the management and workers dismissed without regard to the benefits such investments could render to the economy. A professionally run assets management agency could keep the jobs in these companies and the taxes due to the treasury will still be coming while professional and competent hands are appointed to run the investments during the period of legal proceedings. When the property is finally forfeited, government now takes the final decision as to disposal at competitive market rates to get the best for the treasury.
The third issue is the establishment of the EFCC and provisions that its leader, being the EFCC chairman, must be a serving or retired member of any government security or law enforcement agency not below the rank of Assistant Commissioner of Police or equivalent. With the benefit of hindsight, there is nothing in the demands of the office that makes it mandatory for the chairman to be a retired or serving member of a government security agency. If those agencies from which the chairperson has been recruited were functioning optimally, there would have been no need for the establishment of the EFCC in the first place. The EFCC needed a new culture, a new way of doing things; but experience shows that we simply exported the inefficiencies in the police into the EFCC thereby defeating the intents and purposes of its establishment.
A fourth issue is the concentration of humungous powers in the hands of its chief executive without checks and balances. The members of the EFCC include the Governor of the Central Bank or his representative; a representative each of the following Federal Ministries – Foreign Affairs, Finance, Justice. Also, the Chairman, National Drug Law Enforcement Agency or his representative; the Director General of – the National Intelligence Agency, the Department of State Services or his representative; the Registrar-General of the Corporate Affairs Commission or his representative; the Director-General, Securities and Exchange Commission or his representative; the Managing-Director, Nigeria Deposit Insurance Corporation or his representative; the Commissioner for Insurance or his representative; the Postmaster-General of the Nigerian Postal Services or his representative. Others include, the Chairman, Nigerian Communications Commission or his representative; the Comptroller-General, Nigeria Customs Services or his representative; the Comptroller-General Nigeria Immigration Services or his representative; Inspector General of Police or his representative and four eminent Nigerians with cognate experience in any of the following, that is, finance, banking or accounting. Was the commission ever inaugurated? Did they ever sit to provide guidance and policy direction to the chairman?
The EFCC reforms should be beyond Magu. His removal only offers the opportunity for reforms. If we fail to reform the EFCC and appoint an angel as chairman, he would likely disappoint us.
